November 2022 Newsletter Check out all our latest updates |
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Promoting and defending the interests of Virginia's water and waste authorities |
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Consider Becoming a Member of VWWAA! VWWAA Serves As A Voice for Virginia’s Water and Waste Authorities VWWAA’s Mission is to promote and defend the interest of Virginia’s water and waste authorities by: -Monitoring Virginia General Assembly legislation affecting authorities. -Providing a network for the effective dissemination of information to and from the membership. -Becoming a strategic resource as an association representing authorities regarding legislation, regulations, and other issues that are precedent-setting at the local level. -Becoming a strategic voice to proactively change and improve the Act so that we can be more responsible to customers and communities. Membership is open to Virginia Water & Waste Authorities ("Active Members") and our industry partners ("Associate Members") CLICK HERE TO LEARN MORE |
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Construction Contracts Must Include Certain Payment Clauses Beginning January 1, 2023 The 2022 General Assembly passed legislation requiring state and local government agencies to include particular payment clauses in construction contracts beginning January 1, 2023. The required clause will obligate the general contractor to be liable for the entire amount owed to any subcontractor on its team, unless an amount is reduced because of the subcontractor’s noncompliance. This is sample language that you may consider for your contracts, and which should be discussed with your agency’s legal counsel: “Contractor agrees that it is liable for the entire amount owed to any subcontractor with which it contracts, provided however, Contractor may withhold amounts due to subcontractor’s breach or noncompliance with such subcontract. If Contractor withholds any amounts due to a subcontractor due to breach or noncompliance, then Contractor must provide the subcontractor with written notice of its intent to do so and must provide the reasons for any such withholding. Contractor shall send of a copy of any such notice to the Authority.” |
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Sackett v. EPA: What is a wetland? The U.S. Supreme Court heard oral arguments at the beginning of the October term in Sackett v. EPA, involving an Idaho couple who wanted to build a home near Priest Lake on a site that, according to the US Army Corps of Engineers and EPA, contains wetlands. The Sacketts challenged the government’s position and claimed that the wetlands on their property are not jurisdictional wetlands under the Clean Water Act because they are not “Waters of the United States” (WOTUS), under what the Sacketts believe should be the proper jurisdictional test. Lower court upheld the EPA jurisdictional determination and the Sacketts appealed to the Supreme Court. This is another in a long line of cases and regulatory back and forth that has occurred since the Supreme Court’s Rapanos decision (2006) that, in a plurality opinion by the Justices, set forth two different tests for determining what was a WOTUS. Justice Antonin Scalia proposed a test requiring that there be a “relatively permanent” flow of water from any stream or wetland for it to be considered a WOTUS. Justice Anthony Kennedy proposed a “significant nexus” test, whereby wetlands would be jurisdictional if they had a significant nexus with traditionally navigable waters and if they significantly affected the quality of such waters. Justice Kennedy’s test has been used by the EPA and the Corps since Rapanos was decided. Now, the Sacketts would like the Supreme Court to rule that Justice Scalia’s test requiring a relatively permanent flow of water be the definitive test. For water utilities, the difference between the two approaches would primarily make a difference in utility line construction, which under Justice Scalia’s test would mean certain upstream waters currently regulated by the Clean Water Act would no longer be subject to Corps jurisdiction. For example, currently ephemeral streams are considered jurisdictional, but would not be jurisdictional under the test requested by the Sacketts. Thus, a utility would no longer need a Corps permit in certain instances, as it would in the past, although in Virginia, which has independent jurisdiction over the filling of “waters of the state,” a Department of Environmental Quality permit would still be required even if Justice Scalia’s “relatively permanent” test is adopted. A decision by the Supreme Court is expected in early 2023. An update will be provided when the Supreme Court’s opinion is released. |
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Virginia’s Public-PrivateEducation Facilities and Infrastructure Act Many water and wastewater utilities remain interested in using Virginia’s innovative public-private partnership procurement method for major projects. Here’s an overview of the Public-Private Education Facilities and Infrastructure Act – known informally as “PPEA” – that the General Assembly passed in 2002. The PPEA is one of three procurement methods for infrastructure projects, along with traditional design-bid-build, design-build, and construction management. PPEA can be used for state- or locally-owned projects, and projects can be solicited by the public agency or private-sector companies can propose unsolicited projects. Before any public agency can use the PPEA procurement process, it will have had to adopt PPEA guidelines for receiving, considering and acting on solicited or unsolicited proposals. (Most localities have adopted guidelines.) Hundreds of projects have been successfully procured – by solicited and unsolicited methods – over the past two decades, including water and wastewater treatment facilities and related utilities. Some authorities and localities that have used the PPEA procurement method for new or upgraded water and wastewater projects include Bedford County Public Service Authority, Augusta County Service Authority, Hopewell Regional Wastewater Treatment Facility, Caroline County, Southampton County, and the cities of Chesapeake, Fredericksburg, and Petersburg, to name but a few. Other projects often designed and built by PPEA procurement include K-12 schools, college and university facilities, telecommunications infrastructure, solid waste facilities, and other government buildings, including administration and support facilities, jails, courthouses, parking decks, libraries, performing arts center, recreational facilities and stadiums, and more. The PPEA procurement process involves three basic stages: a conceptual proposal, a detailed proposal, and a comprehensive agreement (contract) between the public body and private-sector company or consortium to design and construct it. It is a competitive process, designed to solicit other proposals even when an unsolicited project is submitted. The PPEA procurement method is flexible, allows greater collaboration between the public body and private-sector developer, design, and construction team, and in many cases is quicker and more efficient than more the traditional design-bid-build process. For more on the PPEA statute, see Va. Code § 56-575.1 et seq. |
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Virginia Regulatory Town Hall The Virginia Regulatory Town Hall is the state government’s central online site for information about proposed changes to regulations, state agencies’ meeting calendars, and meeting minutes for all regulatory boards and commissions. There also is a list of regulatory guidance documents. And for the general public, the site provides a public comment forum for pending regulatory actions. The Town Hall allows you to find regulations; see regulatory actions (rulemakings) that are mandated by the General Assembly or otherwise being promulgated; see a schedule for regulations to be periodically reviewed; and see general notices or updates to regulatory actions. The state agencies’ meetings calendar is searchable by date, agency, or regulatory board or commission. Last, the Town Hall allows anyone to sign up for various notices, whether for specific agencies or boards and commissions. |
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