| 6 | 4 | | SENATE FILE NO. SF0019 |
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| 7 | 5 | | Impact assistance payments-maximum percentages and review. |
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| 8 | 6 | | Sponsored by: Joint Minerals, Business & Economic |
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| 9 | 7 | | Development Interim Committee |
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| 10 | 8 | | A BILL |
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| 11 | 9 | | for |
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| 12 | 10 | | 1 AN ACT relating to industrial development and siting; |
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| 13 | 11 | | 2 specifying that the industrial siting council may increase |
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| 14 | 12 | | 3 the impact assistance payments of specified projects beyond |
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| 15 | 13 | | 4 the maximum allowable percentages; requiring approval of |
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| 16 | 14 | | 5 increases; specifying that approvals are not subject to |
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| 17 | 15 | | 6 judicial review; making conforming amendments; specifying |
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| 18 | 16 | | 7 applicability; and providing for an effective date. |
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| 19 | 17 | | 8 |
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| 20 | 18 | | 9 |
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| 21 | 19 | | 10 |
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| 22 | 20 | | 11. W.S. 35-12-105(c), 39-15-111(c), |
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| 23 | 21 | | 12 (d)(intro) and by creating a new subsection (r) and |
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| 24 | 22 | | 13 39-16-111(d), (e)(intro) and by creating a new subsection |
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| 25 | 23 | | 14 (p) are amended to read: |
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| 29 | 25 | | 2 |
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| 30 | 26 | | 3 |
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| 31 | 27 | | 4 (c) The director, administrator and the staff of the |
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| 32 | 28 | | 5 division are authorized to the extent possible, at the |
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| 33 | 29 | | 6 request of local governments, to provide technical |
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| 34 | 30 | | 7 assistance to local governments in the preparation of |
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| 35 | 31 | | 8 anticipated impacts related to a proposed project |
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| 36 | 32 | | 9 consistent with W.S. 39-15-111(c), and |
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| 37 | 33 | | 10 39-16-111(d), and negotiation of agreements |
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| 38 | 34 | | 11 with applicants as provided for in W.S. 35-12-107. |
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| 39 | 35 | | 12 |
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| 40 | 36 | | 13 |
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| 41 | 37 | | 14 |
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| 42 | 38 | | 15 (c) If any person commences after the effective date |
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| 43 | 39 | | 16 of this act to construct an industrial facility, as that |
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| 44 | 40 | | 17 term is defined in W.S. 35-12-102, under a permit issued |
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| 45 | 41 | | 18 pursuant to W.S. 35-12-106, or if the federal or state |
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| 46 | 42 | | 19 government commences to construct any project within this |
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| 47 | 43 | | 20 state with an estimated construction cost as specified in |
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| 48 | 44 | | 21 the definition of industrial facility in W.S. 35-12-102 the |
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| 49 | 45 | | 22 department of revenue shall thereafter pay to the county |
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| 53 | 47 | | 1 county, cities and towns of that county in which the |
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| 54 | 48 | | 2 industrial facility or project is located, impact |
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| 55 | 49 | | 3 assistance payments from the monies available under |
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| 56 | 50 | | 4 paragraph (b)(i) of this section. Each payment to the |
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| 57 | 51 | | 5 county treasurer shall be equal to an amount determined by |
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| 58 | 52 | | 6 the industrial siting council under this subsection and |
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| 59 | 53 | | 7 shall continue during the period of construction except |
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| 60 | 54 | | 8 that in the case of an industrial facility or a federal or |
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| 61 | 55 | | 9 state government project which is expected to continue in |
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| 62 | 56 | | 10 phases for an indefinite period of time, the department of |
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| 63 | 57 | | 11 revenue shall discontinue payments under this section when |
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| 64 | 58 | | 12 construction of any phase has ceased or been substantially |
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| 65 | 59 | | 13 completed for twelve (12) consecutive months. The person |
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| 66 | 60 | | 14 constructing the industrial facility and the counties |
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| 67 | 61 | | 15 affected by the construction of the industrial facility |
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| 68 | 62 | | 16 shall provide evidence at the public hearing held pursuant |
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| 69 | 63 | | 17 to W.S. 35-12-110(f)(i) of the mitigated and unmitigated |
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| 70 | 64 | | 18 impacts that the construction will have on the counties, |
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| 71 | 65 | | 19 cities and towns determined by the industrial siting |
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| 72 | 66 | | 20 council to be affected by the construction of the |
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| 73 | 67 | | 21 industrial facility. The industrial siting council shall |
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| 74 | 68 | | 22 review the evidence of the impacts and determine, applying |
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| 78 | 70 | | 1 the unmitigated impacts. The council shall state, in the |
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| 79 | 71 | | 2 order issued under W.S. 35-12-113(a), the total dollar |
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| 80 | 72 | | 3 amount of the impact assistance payment and include |
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| 81 | 73 | | 4 specific findings of fact detailing the basis for the total |
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| 82 | 74 | | 5 dollar amount determination and if requested by the |
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| 83 | 75 | | 6 affected county, city or town, its justification for |
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| 84 | 76 | | 7 rejecting, in whole or in part, an application for an |
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| 85 | 77 | | 8 impact assistance payment. The impact assistance payment |
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| 86 | 78 | | 9 shall be distributed by the department of revenue in an |
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| 87 | 79 | | 10 amount and on a schedule determined by the council, based |
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| 88 | 80 | | 11 on evidence presented at the hearing. Under no |
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| 89 | 81 | | 12 circumstances shall the total dollar amount of the impact |
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| 90 | 82 | | 13 assistance payment exceed the maximum allowable percentage |
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| 91 | 83 | | 14 specified in this subsection of the total estimated |
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| 92 | 84 | | 15 material costs of the facility, as those costs are |
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| 93 | 85 | | 16 determined by the council. The maximum allowable percentage |
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| 94 | 86 | | 17 shall be two and twenty-five hundredths percent (2.25%) for |
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| 95 | 87 | | 18 facilities with total estimated materials costs of three |
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| 96 | 88 | | 19 hundred fifty million dollars ($350,000,000.00) or less |
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| 97 | 89 | | 20 except as otherwise provided in this subsection, two |
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| 98 | 90 | | 21 percent (2%) for facilities with total estimated materials |
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| 99 | 91 | | 22 costs in excess of three hundred fifty million dollars |
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| 103 | 93 | | 1 dollars ($850,000,000.00) and one and one-half percent |
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| 104 | 94 | | 2 (1.50%) for facilities with total estimated materials costs |
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| 105 | 95 | | 3 of eight hundred fifty million dollars ($850,000,000.00) or |
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| 106 | 96 | | 4 more. For facilities with total estimated materials costs |
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| 107 | 97 | | 5 of three hundred fifty million dollars ($350,000,000.00) or |
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| 108 | 98 | | 6 less, the council may increase the maximum allowable |
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| 109 | 99 | | 7 percentage to not more than two and seventy-six hundredths |
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| 110 | 100 | | 8 percent (2.76%) if the council includes in the specific |
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| 111 | 101 | | 9 findings required under this subsection that the maximum |
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| 112 | 102 | | 10 allowable percentage of two and twenty-five hundredths |
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| 113 | 103 | | 11 percent (2.25%) is insufficient to mitigate the identified |
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| 114 | 104 | | 12 impacts. |
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| 115 | 105 | | 13 |
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| 116 | 106 | | 14 |
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| 117 | 107 | | 15 |
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| 118 | 108 | | 16 |
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| 119 | 109 | | 17 The council shall submit a report to |
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| 120 | 110 | | 18 the joint appropriations committee and the joint minerals, |
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| 121 | 111 | | 19 business and economic development interim committee not |
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| 122 | 112 | | 20 later than ten (10) business days after increasing the |
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| 123 | 113 | | 21 maximum allowable percentage as specified in this |
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| 124 | 114 | | 22 subsection, including data to support the increase. The |
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| 128 | 116 | | 1 county treasurer and the county treasurer will distribute |
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| 129 | 117 | | 2 to the county and to the cities and towns therein based on |
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| 130 | 118 | | 3 a ratio established by the industrial siting council during |
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| 131 | 119 | | 4 a public hearing held in accordance with W.S. |
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| 132 | 120 | | 5 35-12-110(f)(i). In determining the distribution ratio, the |
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| 133 | 121 | | 6 industrial siting council may consider the extent and |
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| 134 | 122 | | 7 location of the unmitigated impacts, the populations of the |
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| 135 | 123 | | 8 affected counties, cities and towns, including any |
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| 136 | 124 | | 9 disproportionate impacts on smaller communities, and any |
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| 137 | 125 | | 10 other equitable factor. The industrial siting council shall |
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| 138 | 126 | | 11 review the distribution ratio for construction projects on |
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| 139 | 127 | | 12 a regular basis and make appropriate adjustments. A |
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| 140 | 128 | | 13 governing body which is primarily affected by the facility, |
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| 141 | 129 | | 14 or any person issued a permit pursuant to W.S. 35-12-106, |
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| 142 | 130 | | 15 may petition the industrial siting council for review and |
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| 143 | 131 | | 16 adjustment of the distribution ratio or the amount of the |
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| 144 | 132 | | 17 impact assistance payment upon a showing of good cause. The |
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| 145 | 133 | | 18 impact assistance payment shall be in addition to all other |
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| 146 | 134 | | 19 distributions under this section, but no impact assistance |
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| 147 | 135 | | 20 payment shall be made for any period in which the county or |
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| 148 | 136 | | 21 counties are not imposing at least a one percent (1%) tax |
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| 149 | 137 | | 22 authorized by W.S. 39-15-204(a)(i) and 39-16-204(a)(i) or |
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| 153 | 139 | | 1 under W.S. 39-15-204(a)(i), (iii) and (vi) and at least a |
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| 154 | 140 | | 2 total of a two percent (2%) use tax authorized under W.S. |
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| 155 | 141 | | 3 39-16-204(a)(i), (ii) and (v). For purposes of this |
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| 156 | 142 | | 4 subsection, the industrial facility or federal or state |
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| 157 | 143 | | 5 government project will be deemed to be located in the |
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| 158 | 144 | | 6 county in which a majority of the construction costs will |
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| 159 | 145 | | 7 be expended, provided that upon a request from the county |
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| 160 | 146 | | 8 commissioners of any adjoining county to the industrial |
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| 161 | 147 | | 9 siting council, the council may determine that the social |
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| 162 | 148 | | 10 and economic impacts from construction of the industrial |
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| 163 | 149 | | 11 facility or federal or state government project upon the |
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| 164 | 150 | | 12 adjoining county are significant and establish the ratio of |
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| 165 | 151 | | 13 impacts between the counties and certify that ratio to the |
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| 166 | 152 | | 14 department of revenue who will thereafter distribute the |
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| 167 | 153 | | 15 impact assistance payment to the counties pursuant to that |
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| 168 | 154 | | 16 ratio. Each county, city and town that receives a |
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| 169 | 155 | | 17 distribution under this subsection shall provide an annual |
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| 170 | 156 | | 18 report to the industrial siting council describing how the |
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| 171 | 157 | | 19 impact assistance payment was expended. The report shall |
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| 172 | 158 | | 20 first be submitted not later than one (1) year after the |
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| 173 | 159 | | 21 impact assistance payment is approved and annually each |
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| 174 | 160 | | 22 year thereafter for the duration in which distributions are |
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| 253 | 231 | | 2 (d) If any person commences after the effective date |
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| 254 | 232 | | 3 of this act to construct an industrial facility, as that |
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| 255 | 233 | | 4 term is defined in W.S. 35-12-102, under a permit issued |
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| 256 | 234 | | 5 pursuant to W.S. 35-12-106, or if the federal or state |
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| 257 | 235 | | 6 government commences to construct any project within this |
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| 258 | 236 | | 7 state with an estimated construction cost as specified in |
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| 259 | 237 | | 8 the definition of industrial facility in W.S. 35-12-102 the |
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| 260 | 238 | | 9 department of revenue shall thereafter pay to the county |
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| 261 | 239 | | 10 treasurer and the county treasurer will distribute to the |
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| 262 | 240 | | 11 county, cities and towns of that county in which the |
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| 263 | 241 | | 12 industrial facility or project is located, impact |
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| 264 | 242 | | 13 assistance payments from the monies available under |
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| 265 | 243 | | 14 paragraph (b)(i) of this section. Each payment to the |
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| 266 | 244 | | 15 county treasurer shall be equal to an amount determined by |
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| 267 | 245 | | 16 the industrial siting council under this subsection and |
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| 268 | 246 | | 17 shall continue during the period of construction except |
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| 269 | 247 | | 18 that in the case of an industrial facility or a federal or |
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| 270 | 248 | | 19 state government project which is expected to continue in |
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| 271 | 249 | | 20 phases for an indefinite period of time, the department of |
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| 272 | 250 | | 21 revenue shall discontinue payments under this section when |
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| 273 | 251 | | 22 construction of any phase has ceased or been substantially |
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| 277 | 253 | | 1 constructing the industrial facility and the counties |
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| 278 | 254 | | 2 affected by the construction of the industrial facility |
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| 279 | 255 | | 3 shall provide evidence at the public hearing held pursuant |
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| 280 | 256 | | 4 to W.S. 35-12-110(f)(i) of the mitigated and unmitigated |
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| 281 | 257 | | 5 impacts that the construction will have on the counties, |
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| 282 | 258 | | 6 cities and towns determined by the industrial siting |
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| 283 | 259 | | 7 council to be affected by the construction of the |
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| 284 | 260 | | 8 industrial facility. The industrial siting council shall |
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| 285 | 261 | | 9 review the evidence of the impacts and determine, applying |
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| 286 | 262 | | 10 a preponderance of evidence standard, the dollar amount of |
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| 287 | 263 | | 11 the unmitigated impacts. The council shall state, in the |
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| 288 | 264 | | 12 order issued under W.S. 35-12-113(a), the total dollar |
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| 289 | 265 | | 13 amount of the impact assistance payment and include |
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| 290 | 266 | | 14 specific findings of fact detailing the basis for the total |
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| 291 | 267 | | 15 dollar amount determination and if requested by the |
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| 292 | 268 | | 16 affected county, city or town, its justification for |
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| 293 | 269 | | 17 rejecting, in whole or in part, an application for an |
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| 294 | 270 | | 18 impact assistance payment. The impact assistance payment |
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| 295 | 271 | | 19 shall be distributed by the department of revenue in an |
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| 296 | 272 | | 20 amount and on a schedule determined by the council, based |
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| 297 | 273 | | 21 on evidence presented at the hearing. Under no |
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| 298 | 274 | | 22 circumstances shall the total dollar amount of the impact |
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| 302 | 276 | | 1 specified in this subsection of the total estimated |
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| 303 | 277 | | 2 material costs of the facility, as those costs are |
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| 304 | 278 | | 3 determined by the council. The maximum allowable percentage |
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| 305 | 279 | | 4 shall be two and twenty-five hundredths percent (2.25%) for |
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| 306 | 280 | | 5 facilities with total estimated materials costs of three |
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| 307 | 281 | | 6 hundred fifty million dollars ($350,000,000.00) or less |
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| 308 | 282 | | 7 except as otherwise provided in this subsection, two |
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| 309 | 283 | | 8 percent (2%) for facilities with total estimated materials |
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| 310 | 284 | | 9 costs in excess of three hundred fifty million dollars |
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| 311 | 285 | | 10 ($350,000,000.00) but less than eight hundred fifty million |
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| 312 | 286 | | 11 dollars ($850,000,000.00) and one and one-half percent |
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| 313 | 287 | | 12 (1.50%) for facilities with total estimated materials costs |
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| 314 | 288 | | 13 of eight hundred fifty million dollars ($850,000,000.00) or |
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| 315 | 289 | | 14 more. For facilities with total estimated materials costs |
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| 316 | 290 | | 15 of three hundred fifty million dollars ($350,000,000.00) or |
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| 317 | 291 | | 16 less, the council may increase the maximum allowable |
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| 318 | 292 | | 17 percentage to not more than two and seventy-six hundredths |
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| 319 | 293 | | 18 percent (2.76%) if the council includes in the specific |
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| 320 | 294 | | 19 findings required under this subsection that the maximum |
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| 321 | 295 | | 20 allowable percentage of two and twenty-five hundredths |
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| 322 | 296 | | 21 percent (2.25%) is insufficient to mitigate the identified |
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| 323 | 297 | | 22 impacts. |
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| 327 | 299 | | 1 |
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| 328 | 300 | | 2 |
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| 329 | 301 | | 3 |
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| 330 | 302 | | 4 |
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| 331 | 303 | | 5 the joint appropriations committee and the joint minerals, |
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| 332 | 304 | | 6 business and economic development interim committee not |
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| 333 | 305 | | 7 later than ten (10) business days after increasing the |
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| 334 | 306 | | 8 maximum allowable percentage as specified in this |
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| 335 | 307 | | 9 subsection, including data to support the increase. The |
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| 336 | 308 | | 10 impact assistance payments shall be distributed to the |
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| 337 | 309 | | 11 county treasurer and the county treasurer will distribute |
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| 338 | 310 | | 12 to the county and to the cities and towns therein based on |
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| 339 | 311 | | 13 a ratio established by the industrial siting council during |
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| 340 | 312 | | 14 a public hearing held in accordance with W.S. |
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| 341 | 313 | | 15 35-12-110(f)(i). In determining the distribution ratio, the |
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| 342 | 314 | | 16 industrial siting council may consider the extent and |
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| 343 | 315 | | 17 location of the unmitigated impacts, the populations of the |
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| 344 | 316 | | 18 affected counties, cities and towns, including any |
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| 345 | 317 | | 19 disproportionate impacts on smaller communities, and any |
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| 346 | 318 | | 20 other equitable factor. The industrial siting council shall |
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| 347 | 319 | | 21 review the distribution ratio for construction projects on |
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| 348 | 320 | | 22 a regular basis and make appropriate adjustments. A |
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| 352 | 322 | | 1 or any person issued a permit pursuant to W.S. 35-12-106, |
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| 353 | 323 | | 2 may petition the industrial siting council for review and |
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| 354 | 324 | | 3 adjustment of the distribution ratio or the amount of the |
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| 355 | 325 | | 4 impact assistance payment upon a showing of good cause. |
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| 356 | 326 | | 5 The impact assistance payment shall be in addition to all |
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| 357 | 327 | | 6 other distributions under this section, but no impact |
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| 358 | 328 | | 7 assistance payment shall be made for any period in which |
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| 359 | 329 | | 8 the county or counties are not imposing at least a one |
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| 360 | 330 | | 9 percent (1%) tax authorized by W.S. 39-15-204(a)(i) and |
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| 361 | 331 | | 10 39-16-204(a)(i) or at least a total of a two percent (2%) |
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| 362 | 332 | | 11 sales tax authorized under W.S. 39-15-204(a)(i), (iii) and |
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| 363 | 333 | | 12 (vi) and at least a total of a two percent (2%) use tax |
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| 364 | 334 | | 13 authorized under W.S. 39-16-204(a)(i), (ii) and (v). For |
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| 365 | 335 | | 14 purposes of this subsection, the industrial facility or |
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| 366 | 336 | | 15 federal or state government project will be deemed to be |
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| 367 | 337 | | 16 located in the county in which a majority of the |
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| 368 | 338 | | 17 construction costs will be expended, provided that upon a |
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| 369 | 339 | | 18 request from the county commissioners of an adjoining |
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| 370 | 340 | | 19 county to the industrial siting council, the council may |
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| 371 | 341 | | 20 determine that the social and economic impacts from |
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| 372 | 342 | | 21 construction of the industrial facility or federal or state |
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| 373 | 343 | | 22 government project upon the adjoining county are |
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| 377 | 345 | | 1 counties and certify that ratio to the department of |
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| 378 | 346 | | 2 revenue who will thereafter distribute the impact |
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| 379 | 347 | | 3 assistance payment to the counties pursuant to that ratio. |
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| 380 | 348 | | 4 Each county, city and town that receives a distribution |
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| 381 | 349 | | 5 under this subsection shall provide an annual report to the |
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| 382 | 350 | | 6 industrial siting council describing how the impact |
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| 383 | 351 | | 7 assistance payment was expended. The report shall first be |
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| 384 | 352 | | 8 submitted not later than one (1) year after the impact |
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| 385 | 353 | | 9 assistance payment is approved and annually each year |
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| 386 | 354 | | 10 thereafter for the duration in which distributions are made |
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| 387 | 355 | | 11 and until all distributions are expended. The industrial |
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| 388 | 356 | | 12 siting council shall adopt rules as necessary to implement |
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| 389 | 357 | | 13 this subsection. |
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| 390 | 358 | | 14 |
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| 391 | 359 | | 15 (e) As used in (d) of |
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| 392 | 360 | | 16 this section: |
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| 393 | 361 | | 17 |
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| 394 | 362 | | 18 For industrial facilities for which the total |
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| 395 | 363 | | 19 |
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| 396 | 364 | | 20 |
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| 397 | 365 | | 21 |
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