New York Codes, Rules and Regulations › Title 21 - Miscellaneous › Chapter XLII - New York State Environmental Facilities Corporation › Part 2602 - State Clean Water Revolving Fund Regulations › Section 2602.2 - Definitions

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Terms used in
				this Part or to be used in complying with this Part have the following
				meanings:
(1) Act means the Federal Water
				Pollution Control Act, also known as the Clean Water Act,
				33 USC
				1251 et seq., as amended and as may be
				amended, and as amended by the American Recovery and Reinvestment Act of 2009,
				P.L.
				111-5 (ARRA).
(2) Additional subsidization means
				forgiveness of principal, a negative interest loan or a grant to be provided in
				accordance with the act.
(3)
				Administrator means the administrator of the United States Environmental
				Protection Agency (EPA) or the chief executive officer of such agency or any
				successor agency or department or any authorized representatives of the
				administrator.
(4) Allocation means
				the amount of moneys of the CWSRF allocated in accordance with section
				17-1909(3) of the ECL, or other security or funds used to reduce a recipient's
				total financing costs for a project. Linked deposits shall not constitute an
				allocation hereunder.
(5) Allowable
				costs are all costs of a project which the corporation determines are:
(i) properly allocable to that project in
				accordance with applicable laws and regulations; and
(ii) not annual project operation costs,
				including but not limited to, those for maintenance, or replacement and repair
				of minor equipment.
(6)
				Binding commitment means a legal obligation made pursuant to and subject to the
				terms of a project financing agreement (PFA) to provide CWSRF assistance to one
				or more recipients.
(7) Business
				day means any day on which New York State offices are open to conduct
				business.
(8) Commencement of
				construction means the date that:
(i) a notice
				to proceed is issued by the recipient to the contractor following the execution
				of the contract between the recipient and such contractor for the erection,
				building, acquisition, alteration, reconstruction, improvement, enlargement or
				extension of the project; or
(ii)
				in the event that the project will be built by recipient employees (force
				account) in lieu of a contractor, the first day that a work crew occupies the
				project; or
(iii) in the event that
				the project is a contract to purchase supplies, material or equipment, a
				binding purchase agreement is executed between the contracting parties and the
				recipient has provided evidence satisfactory to the corporation of the
				execution of such agreement; or
(iv) in the event that the project consists
				of the purchase of land, the closing date on which the first parcel is
				purchased by and title conveyed to the recipient, pursuant to and subject to
				the terms of a PFA; or
(v) at the
				election of the corporation, such other date as may be permitted by applicable
				law.
(9) Commissioner
				means the commissioner of the department.
(10) Completion of construction means the
				date that:
(i) the last major construction
				contract ends, as indicated in the notice to proceed, or if one is not given,
				the date calculated by adding the contract completion time, as specified in the
				executed contract between the recipient and the contractor, to the notice to
				proceed date, or the date construction was actually completed, if prior. The
				completion date may be extended by the recipient by an executed change order
				formally extending the contract completion date, or by written notice
				justifying the extension of time; or
(ii) in the event that the project was built
				by recipient employees (force account), the last day the work crew actually
				occupied the project; or
(iii) in
				the event that the project is a contract to purchase supplies, materials or
				equipment, the date on which the supplies, materials or equipment are delivered
				to the recipient and the warranty period, if any, begins; or
(iv) in the event that the project consists
				of the purchase of land, the closing date on which the last parcel is purchased
				by and title conveyed to the recipient, pursuant to and subject to the terms of
				a PFA.
(11) Comptroller
				means the Comptroller of New York State.
(12) Construction means the erection,
				building, acquisition, alteration, reconstruction, improvement, enlargement or
				extension of a project; and all other actions necessary and consistent with the
				project.
(13) Contingency project
				is a project included in the intended use plan (IUP) below a funding line for
				which CWSRF assistance will be provided if funds become available.
(14) Corporation means the New York State
				Environmental Facilities Corporation.
(15) CWSRF assistance means any financial
				assistance provided from the CWSRF consistent with the requirements of
				applicable law, including "financial assistance to municipalities," as defined
				in section
				1285-j
				(4) of the Public Authorities Law (PAL),
				including additional subsidization, and such other forms of assistance as
				permitted by the act, in consultation with the director of the Division of
				Budget and the commissioner. CWSRF assistance may also include linked
				deposits.
(16) Department means the
				Department of Environmental Conservation of New York State.
(17) Design includes, but is not limited to,
				necessary design calculations, selection of equipment and the preparation of
				construction drawings, specifications and contract documents.
(18) Direct financing means a financing made
				available from moneys deposited in the CWSRF other than from proceeds of the
				corporation's bonds or notes.
(19)
				Direct interest rate means a rate of interest no higher than the market rate of
				interest.
(20) Disbursement means a
				transfer of CWSRF assistance moneys to a recipient from accounts held by the
				corporation's custodian, as identified in the financing documents, in
				accordance with an executed PFA.
(21) ECL means chapter 43-B of the
				Consolidated Laws of New York State, entitled the Environmental Conservation
				Law.
(22) Engineering report means
				the document or documents, which determines the technical and economic
				feasibility of a project. For purposes of land acquisition and related
				projects, engineering report means the land acquisition plan or the management
				plan prepared by the recipient in a form acceptable to the corporation. Such
				land acquisition plan or management plan must identify the relationship of each
				property to be acquired or purchased to the water quality protection or
				enhancement purposes identified in section 319 or 320 of the act.
(23) Environmentally significant project
				(ESP) means a project that the commissioner has determined to be
				environmentally significant. In so designating an ESP, the commissioner shall
				consider all relevant factors, which shall include, but need not be limited to,
				an assessment of:
(i) public health and
				safety;
(ii) protection of
				environmental resources;
(iii) with
				respect to a municipality's project, population affected;
(iv) attainment of State water quality goals
				and standards; and
(v) compliance
				with State and Federal law, rules and regulations.
(24) Equivalency project means a treatment
				works project that must be constructed in compliance with the provisions of the
				act applicable to projects funded from Federal capitalization funds or their
				equivalent.
(25) Equivalent
				dwelling unit means a system user that produces a wastewater flow (measured in
				gallons per day) and/or strength (measured in pounds per day of various
				pollutants) equivalent to a typical single-family residence, which serves as a
				means of proportioning system usage and costs.
(26) Estimated service charge means the total
				annual estimated cost of service to a household or equivalent dwelling unit in
				the area served by the project, which includes debt service and all other
				annualized charges.
(27) Facilities
				plan means a document that includes those elements required in an engineering
				report, and demonstrates that the mandatory planning requirements of title II
				of the act for equivalency projects have been met.
(28) Federal capitalization funds means funds
				deposited in the CWSRF pursuant to a Federal capitalization grant according to
				the provisions of title VI of the act or other Federal assistance provided
				pursuant to any appropriation for the CWSRF.
(29) Financing means a loan, a purchase of
				debt obligations or other financing.
(30) Hardship assistance means CWSRF
				assistance, as may be authorized by law, including, without limitation, a
				reduced interest rate financing, forgiveness of principal, a negative interest
				loan and/or a grant, provided by the corporation to a recipient in those
				instances where the corporation, in its discretion, determines financial
				hardship exists.
(31) Intended use
				plan (IUP) means a plan identifying the intended uses of the estimated amounts
				available in the CWSRF, including but not limited to: a list of potentially
				eligible projects; a description of the short-term and long-term goals and
				objectives of the CWSRF; information on the types of activities to be supported
				including a description of project categories, terms of CWSRF assistance,
				eligible recipients, and the criteria and method established for the
				distribution of funds. The IUP shall be published in accordance with the act,
				and shall be subject to public review and comment.
(32) Innovative technology means developed
				wastewater treatment processes and techniques which have not been fully proven
				under the circumstances of their contemplated use and which represent a
				significance advancement over the state of the art in terms of significant
				reduction in life cycle cost of significant environmental benefits through the
				reclaiming and reuse of water, otherwise eliminating the discharge of
				pollutants, utilizing recycling techniques such as land treatment, more
				efficient use of energy and resources, improved or new methods of waste
				treatment management for combined municipal and industrial systems, or the
				confined disposal of pollutants so that they will not migrate to cause water or
				other environmental pollution.
(33)
				Interest rate subsidy means the amount of moneys of the fund credited to the
				recipient to reduce the interest which the recipient would otherwise be
				required to pay, as determined by the corporation.
(34) Land acquisition means the purchase of
				land parcels consistent with the provisions of section 319 and 320 of the act.
				Land acquisition includes but is not limited to the outright purchase of a fee
				simple interest in land or the purchase of a conservation easement.
(35) Land acquisition plan or management plan
				means the plan provided by the recipient, in a form acceptable to the
				corporation, detailing the land parcel(s) to be acquired or purchased and the
				corresponding water quality protection or enhancement purpose(s) achieved. The
				water quality protection or enhancement purposes are provided in section 319 or
				320 of the act, the New York State Nonpoint Source Management Plan or any EPA
				approved national estuary management plan.
(36) Lender means any State or
				federally-chartered savings bank, savings and loan association, Federal savings
				bank, Federal savings and loan association, farm credit system institution, or
				commercial bank or trust company approved by the corporation to accept linked
				deposits.
(37) Leveraged financing
				means a financing, including those secured by the CWSRF, made with CWSRF
				assistance that is made available through the issuance of bonds or notes of the
				corporation, and shall not include any direct financing.
(38) Linked deposit means financial
				assistance undertaken by the corporation for the construction of an eligible
				project through an investment eligible to be held by an eligible
				lender.
(39) Linked deposit
				interest rate means a fixed rate of interest which is below the rate of
				interest for comparable investments in effect at the time the investment is
				made.
(40) Linked deposit spread
				means the difference between linked deposit interest rate and the rate of
				interest for comparable investments available from the lender in effect at the
				time the investment is made.
(41)
				Linked loan means a loan for purposes of an eligible project, in an amount
				equal to a linked deposit and bearing interest at the linked loan interest
				rate.
(42) Linked loan borrower
				means a borrower eligible to receive CWSRF assistance in the form of a linked
				loan.
(43) Linked loan interest
				rate means a fixed rate below the fixed interest rate the lender would have
				charged for the loan in the absence of a linked deposit based on its usual
				credit considerations and shall be calculated by deducting the linked deposit
				spread from the rate the lender would have charged in the absence of the linked
				deposit.
(44) Linked loan project
				means the program for providing CWSRF assistance in the form of linked deposits
				for the implementation of a management plan established under section 319 of
				the Federal Water Pollution Control Act related to agricultural operations, the
				upgrade or replacement of residential and small business on-site wastewater
				treatment systems with a system approved by the State or local Department of
				Health, or the abandonment of residential and small business on-site wastewater
				treatment systems and connection to a sewer, when a sewer becomes available, or
				another project as may be approved by the corporation and permitted by
				applicable law.
(45) Linked loan
				recipient means any person which is:
(i) an
				individual or small business which is eligible to undertake an eligible project
				related to residential and small business on-site wastewater treatment systems;
				or
(ii) an entity receiving or
				eligible to receive an agricultural assessment pursuant to article 25-AA of the
				Agriculture and Markets Law which is eligible to undertake an eligible project;
				or
(iii) any two or more of the
				foregoing which are acting jointly in connection with an eligible project;
				or
(iv) another recipient as may be
				permitted by applicable law.
(46) Long-term financing means a financing
				other than a short-term financing.
(47) Market rate of interest means the
				interest rate obtained on the most recent sale of bonds or notes by the
				corporation for a CWSRF leveraged financing or the interest rate determined by
				the corporation to be otherwise payable to reflect the current market
				conditions from time to time without the provision of any interest rate
				subsidy.
(48) Median household
				income (MHI) means the MHI published by the U.S. Department of Commerce Bureau
				of the Census, for which the most recent income data is available. For special
				districts and other areas for which accurate census data is not available, the
				corporation may consider other income data, including income surveys.
(49) Municipality means any county, city,
				town, village, district corporation, county or town improvement district,
				Indian reservation wholly within New York State, any public benefit corporation
				or public authority established pursuant to the laws of New York or any agency
				of New York State which is empowered to construct and operate a project, or any
				two or more of the foregoing which are acting jointly in connection with a
				project.
(50) Phased funding means
				an arrangement agreed to in a PFA by which a recipient proceeds with the
				construction of an entire project or project segment but receives a binding
				commitment sufficient to meet the cash flow needs for a project segment or a
				specific fiscal period rather than the cash flow needs for the entire project
				or segment.
(51) Planning means the
				orderly development of a project concept from the original statement of need or
				purpose through the evaluation of alternatives to a final recommendation on a
				course of action and measures to implement the selected alternative, including
				completion of the environmental review process.
(52) Program obligations shall mean bonds,
				notes or other obligations issued by eligible entities to fund projects
				eligible for assistance under the CWSRF bearing interest at a market rate of
				interest.
(53) Project means any
				activity whose purpose and design is the preservation, protection and/or
				improvement of water quality, or which implements green infrastructure, water
				or energy efficiency improvements or other environmentally innovative
				activities, or other activities permitted by the act, or which implements
				activities in an approved EPA national estuary management plan, provided such
				activities are eligible for financing under the act, for which all required
				Federal and State permits have been, or are expected to be, issued in
				connection with construction of the project, and which, for projects financed
				pursuant to section 212 of the act, the commissioner has determined is an
				eligible project as set forth in ECL section 17-1909. For projects financed
				pursuant to sections 319 and 320 of the act, certain requirements need to be
				met, including but not limited to, the water quality benefit to be obtained
				from the project and its consistency with the New York State Nonpoint Source
				Management Plan, or how the project implements a recommended activity in the
				appropriate EPA approved national estuary management plan.
(54) Project financing agreement (PFA) means
				an agreement, or agreements, between the corporation and one or more recipients
				with respect to the financing of an eligible project or projects or pre-design
				planning for such in such forms as may be approved by the corporation from time
				to time.
(55) Project priority list
				(PPL) means a list of potentially eligible projects ranked in order of priority
				developed in accordance with 6 NYCRR section 649.3, and the priority ranking
				system scoring criteria contained under 6 NYCRR section 649.13, pursuant to
				section 17-1909(2) of the ECL.
(56)
				PAL means chapter 43-A of the Consolidated Laws of New York State entitled the
				Public Authorities Law.
(57)
				Recipient means any municipality, or person, including but not limited to any
				individual, firm, partnership, association, school district, soil and water
				conservation district, not-for-profit corporation, or other corporation
				organized and existing under the laws of the State or any other state which is
				empowered to develop a project, or any two or more of the foregoing which are
				acting jointly in connection with a project.
(58) Reduced interest rate means an interest
				rate or rates less than the market rate of interest, including a rate of zero
				percent, as determined by the corporation from time to time.
(59) Residential and small business on-site
				wastewater treatment system means a system serving a residence or small
				business that provides for the treatment and/or disposition of the combination
				of human and sanitary waste with water not exceeding 1,000 gallons per
				day.
(60) Small business means any
				business which is resident in this State, independently owned and operated, not
				dominant in its field, and employing not more than 100 individuals.
(61) Segment of a project means one or more
				construction contracts and associated costs that the corporation determines
				constitute a discrete portion of the project which may be financed and
				constructed separately from other project segments.
(62) Short-term financing means a financing
				in which the security provided by the recipient is a short-term note including
				but not limited to a bond anticipation note.
(63) SPDES permit means the New York State
				pollutant discharge elimination system permit issued in accordance with title 8
				of article 17 of the ECL and regulations adopted pursuant thereto.
(64) State means the State of New
				York.
(65) State act means chapter
				565 of the Laws of 1989, as amended and as may be amended.
(66) Target service charge means the amount,
				as determined by the corporation, that a household or equivalent dwelling unit
				having an income equal to the MHI for the area served by the project reasonably
				could pay annually. Criteria for the corporation's calculation of the target
				service charge shall be set forth in the annual IUP.
(67) Treatment works project means any type
				of project described in section 212(2) of the act.