New York Codes, Rules and Regulations › Title 6 - DEPARTMENT OF ENVIRONMENTAL CONSERVATION › Chapter X - DIVISION OF WATER RESOURCES › Subchapter A - GENERAL › Article 1 - MISCELLANEOUS RULES › Part 649 - NEW YORK STATE WATER POLLUTION CONTROL REVOLVING FUND REGULATIONS › Section 649.2 - 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.
(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 properly
					 allocable to that project in accordance with applicable laws and regulations,
					 and are neither annual project operation costs, nor routine
					 maintenance.
(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 may 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.
(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 financing made
					 available from moneys in the CWSRF other than from proceeds of the
					 corporation's bonds or notes.
(19)
					 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.
(20) ECL means chapter 43-B of the
					 Consolidated Laws of New York State, entitled the Environmental Conservation
					 Law.
(21) 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.
(22) 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.
(23) 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.
(24) 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.
(25) 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.
(26) 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.
(27) 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.
(28) Financing means a loan, a purchase of
					 debt obligations or other financing.
(29) 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.
(30) 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 significant advancement over the state of the art in terms of
					 significant reduction in life cycle cost or 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.
(31)
					 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.
(32) Land acquisition means the purchase of
					 land parcels consistent with the provisions of section 319 or 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.
(33) 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.
(34) 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.
(35) 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.
(36) 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.
(37) 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.
(38) 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.
(39)
					 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.
(40) Linked loan borrower
					 means a borrower eligible to receive CWSRF assistance in the form of a linked
					 loan.
(41) 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.
(42) 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.
(43) 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
					 approved and permitted by applicable law.
(44) Long-term financing means a financing
					 other than a short-term financing.
(45) 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.
(46) 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.
(47) 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.
(48) 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.
(49) 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.
(50) Pooled financing means the sale of bonds
					 by the corporation to provide CWSRF assistance to two or more
					 recipients.
(51) 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:
(i) is in accordance with applicable
					 comprehensive studies and reports made pursuant to sections 17-0303 and 17-1901
					 of the ECL;
(ii) is necessary for
					 the accomplishment of the State Water Pollution Control Program formulated
					 pursuant to sections 17-0303 and 17-1901 of the ECL;
(iii) represents a reasonable effort to
					 develop economic viability in planning, design and construction;
(iv) is a project which is eligible for CWSRF
					 assistance; and
(v) conforms with
					 applicable laws, rules and regulations of the department and corporation.
For projects finance 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.
(52) 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.
(53) Project priority list
					 (PPL) means a list of potentially eligible projects ranked in order of priority
					 developed in accordance with section
					 649.3  of
					 this Part, and the priority ranking system scoring criteria contained under
					 section
					 649.13 
					 of this Part, pursuant to section 17-1909(2) of the ECL.
(54) PAL means chapter 43-A of the
					 Consolidated Laws of New York State entitled the Public Authorities
					 Law.
(55) 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.
(56)
					 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.
(57) 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.
(58) 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.
(59) 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.
(60) 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.
(61) 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.
(62) State means the State of New
					 York.
(63) State Act means chapter
					 565 of the Laws of 1989, as amended and as may be amended.
(64) 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.
(65) Treatment works project means any type
					 of project described in section 212(2) of the act.