Title: Water and Wastewater Systems - Chapter 367
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Title: Water and Wastewater Systems - Chapter 367
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Language: English
Publisher: Water and Wastewater Systems Ch. 367 F.S. 1995
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Water and Wastewater Systems - Chapter 367 (JDV Box 90)
General Note: Box 24, Folder 1 ( Governmental Rules, Regulations, Legislation and Administrative Laws - 1996 ), Item 14
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Full Text


.WATER AND WASTEWATER SYSTEMS


CHAPTER 367

WATER AND WASTEWATER SYSTEMS


367.011 Jurisdiction; legislative intent.
367.021 Definitions.
367.022 Exemptions.
367.031 Original certificate.
367.045 Certificate of authorization; application and
amendment procedures.
367.071 Sale, assignment, or transfer of certificate of
authorization, facilities, or control.
367.081 Rates; procedure for fixing and changing.
367.0814 Rates and charges; requests for staff assist-
ance in changing.
367.0816 Recovery of rate case expenses.
367.0817 Reuse projects.
367.082 Interim rates; procedure.
367.0822 Limited proceedings.
367.083 Determination of official date of filing.
367.084 Rate adjustment orders.
367.091 Rates, tariffs; new class of service.
367.101 Charges for service availability.
S 367.111 Service.
367.121 Powers of commission.
367.122 Examination and testing of meters.
367.123 Service for resale.
367.145 Regulatory assessment and application
fees.
367.156 Public utility records; confidentiality.
367.161 Penalties.
367.165 Abandonment.
367.171 Effectiveness of this chapter.
367.182 Saving clause.

367.011 Jurisdiction; legislative intent.-
(1) This chapter may be cited as the "Water and
Wastewater System Regulatory Law."
(2) The Florida Public Service Commission shall
have exclusive jurisdiction over each utility with respect
to its authority, service, and rates.
(3) The regulation of utilities is declared to be in the
public interest, and this law is an exercise of the police
power of the state for the protection of the public health,
safety, and welfare. The provisions of this chapter shall
be liberally construed for the accomplishment of this
purpose.
(4) This chapter shall supersede all other laws on the
same subject, and subsequent inconsistent laws shall
supersede this chapter only to the extent that they do
so by express reference. This chapter shall not impair
or take away vested rights other than procedural rights
or benefits.
History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1. ch. 77-457; ss. 1, 25, 26. ch.
80-99; ss. 2, 3, ch. 81-318: ss. 6, 15. ch. 82-25; ss. 1, 26. 27, ch. 89-353; s. 4, ch.
91-429.

367.021 Definitions.-As used in this chapter, the
following words or terms shall have the meanings indi-
cated:
(1) "Certificate of authorization" means a document
issued by the commission authorizing a utility to provide
service in a specific service area.
(2) "Commission" means the Florida Public Service
Commission.


(3) "Contribution-in-aid-of-construction" means
any amount or item of money, services, or property
received by a utility, from any person or governmental
authority, any portion of which is provided at no cost to
the utility, which represents a donation or contribution
to the capital of the utility, and which is used to offset
the acquisition, improvement, or construction costs of
the utility property, facilities, or equipment used to pro-
vide utility services.
(4) "Corporate undertaking" means the unqualified
guarantee of a utility to pay a refund and pay interest
connected therewith which may be ordered by the com-
mission at such time as the obligation becomes fixed
and final.
(5) "Domestic wastewater" means wastewater prin-
cipally from dwellings, business buildings, institutions,
and sanitary wastewater or sewage treatment plants.
(6) "Effluent reuse" means the use of wastewater
after the treatment process, generally for reuse as irriga-
tion water or for in-plant use.
(7) "Governmental authority" means a political subdi-
vision, as defined by s. 1.01(8), or a regional water sup-
ply authority created pursuant to s. 373.1962.
(8) "Industrial wastewater" means wastewater not
otherwise defined as domestic wastewater, including
runoff and leachate from areas that receive pollutants
associated with industrial or commercial storage, han-
dling, or processing.
(9) "Official date of filing" means the date upon
which it has been determined, pursuant to s. 367.083,
by the commission that the utility has filed with the clerk
the minimum filing requirements as established by rule
of the commission.
(10) "Service area" means the geographical area
described in a certificate of authorization, which may be
within or without the boundaries of an incorporated
municipality and may include areas in more than one
county.
(11) "System" means facilities and land used or useful
in providing service and, upon a finding by the commis-
sion, may include a combination of functionally related
facilities and land.
(12) "Utility" means a water or wastewater utility and,
except as provided in s. 367.022, includes every person,
lessee, trustee, or receiver owning, operating, manag-
ing, or controlling a system, or proposing construction
of a system, who is providing, or proposes to provide,
water or wastewater service to the public for compensa-
tion.
(13) "Wastewater" means the combination of the liq-
uid and water-carried pollutants from a residence, com-
mercial building, industrial plant, or institution, together
with any groundwater, surface runoff, or leachate that
may be present.
History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s ch. 77-457; ss. 2, 25, 26, ch.
80-99; ss. 2. 3, ch. 81-318; ss. 2, 26, 27, ch. 89-353; s. 4. ch. 91-429.

367.022 Exemptions.-The following are not sub-
ject to regulation by the commission as a utility nor are
they subject to the provisions of this chapter, except as
expressly provided:


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WATER AND WASTEWATER SYSTEMS


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.







F.S. 1995 WATER AND WASTEWATER SYSTEMS Ch. 367


(1) The sale, distribution, or furnishing of bottled
water;
(2) Systems owned, operated, managed, or con-
trolled by governmental authorities;
(3) Manufacturers providing service solely in con-
nection with their operations;
(4) Public lodging establishments providing service
solely in connection with service to their guests;
(5) Landlords providing service to their tenants with-
out specific compensation for the service;
(6) Systems with the capacity or proposed capacity
to serve 100 or fewer persons;
(7) Nonprofit corporations, associations, or coopera-
tives providing service solely to members who own and
control such nonprofit corporations, associations, or
cooperatives; and
(8) Any person who resells water or wastewater ser-
vice at a rate or charge which does not exceed the
actual purchase price thereof, if such person files at
least annually with the commission a list of charges and
rates for all water service sold, the source and actual
purchase price thereof, and any other information
required by the commission to justify the exemption; but
such person is subject to the provisions of s. 367.122.
(9) Wastewater treatment plants operated exclu-
sively for disposing of industrial wastewater.
History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 3, 25, 26, ch.
80-99; ss. 2,3, ch. 81-318; ss. 3,26,27, ch. 89-353; s. 1, ch. 90-166; s. 4, ch. 91-429.

367.031 Original certificate.-Each utility subject to
the jurisdiction of the commission must obtain from the
commission a certificate of authorization to provide
water or wastewater service or an order recognizing that
the system is exempt from regulation as provided by s.
367.022. A utility must obtain a certificate of authoriza-
tion or an exemption order from the commission prior to
being issued a permit by the Department of Environmen-
tal Protection for the construction of a new water or
wastewater facility or prior to being issued a consump-
tive use or drilling permit by a water management dis-
trict. The commission shall grant or deny an application
for a certificate of authorization within 90 days after the
official filing date of the completed application, unless
an objection is filed pursuant to s. 120.57, or the applica-
tion will be deemed granted.
History.-s. 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 5, 25, 26. ch.
80-99; ss. 2. 3, ch. 81-318; s. 1, ch. 85-85; ss. 4,26,27. ch. 89-353; s. 4, ch. 91-429;
s. 8, ch. 93-35; s. 183, ch. 94-356.

367.045 Certificate of authorization; application
and amendment procedures.-
(1) When a utility applies for an initial certificate of
authorization from the commission, it shall:
(a) Provide notice of the actual application filed by
mail or personal delivery to the governing body of the
county or city affected, to the Public Counsel, to the
commission, and to such other persons and in such
other manner as may be prescribed by commission rule;
(b) Provide all information required by rule or order
of the commission, which information may include a
detailed inquiry into the ability of the applicant to provide
service, the area and facilities involved, the need for ser-
vice in the area involved, and the existence or nonexis-
tence of service from other sources within geographical
proximity to the area in which the applicant seeks to pro-
vide service;


(c) File with the commission schedules showing all
rates, classifications, and charges for service of every
kind proposed by it and all rules, regulations, and con-
tracts relating thereto;
(d) File the application fee required by s. 367.145;
and
(e) Submit an affidavit that the applicant has pro-
vided notice of its actual application pursuant to this
section.
(2) A utility may not delete or extend its service out-
side the area described in its certificate of authorization
until it has obtained an amended certificate of authoriza-
tion from the commission. When a utility applies for an
amended certificate of authorization from the commis-
sion, it shall:
(a) Provide notice of the actual application filed by
mail or personal delivery to the governing body of the
county or municipality affected, to the Public Counsel,
to the commission, and to such other persons and in
such other manner as may be prescribed by commission
rule;
(b) Provide all information required by rule or order
of the commission, which information may include a
detailed inquiry into the ability or inability of the appli-
cant to provide service, the need or lack of need for ser-
vice in the area that the applicant seeks to delete or add;
the existence or nonexistence of service from other
sources within geographical proximity to the area that
the applicant seeks to delete or add, and a description
of the area sought to be deleted or added to the area
described in the applicant's current certificate of autho-
rization;
(c) Provide a reference to the number of the most
recent order of the commission establishing or amend-
ing the applicant's rates and charges;
(d) Submit an affidavit that the utility has tariffs and
annual reports on file with the commission;
(e) File the application fee required by s. 367.145;
and
(f) Submit an affidavit that the applicant has pro-
vided notice of its actual application pursuant to this
section.
(3) If, within 30 days after the last day that notice
was mailed or published by the applicant, whichever is
later, the commission does not receive written objection
to the notice, the commission may dispose of the appli-
cation without hearing. If the applicant is dissatisfied
with the disposition, it may bring a proceeding under s.
120.57.
(4) If, within 30 days after the last day that notice
was mailed or published by the applicant, whichever is
later, the commission receives from the Public Counsel,
a governmental authority, or a utility or consumer who
would be substantially affected by the requested certifi-
cation or amendment a written objection requesting a
proceeding pursuant to s. 120.57, the commission shall
order such proceeding conducted in or near the area for
which application is made, if feasible. Notwithstanding
the ability to object on any other ground, a county or
municipality has standing to object on the ground that
the issuance or amendment of the certificate of authori-
zation violates established local comprehensive plans
developed pursuant to ss. 163.3161-163.3211. If a con-


WATER AND WASTEWATER SYSTEMS


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Ch. 367 WATER AND WASTEWATER SYSTEMSFS.95


summer, utility, or governmental authority or the Public
Counsel requests a public hearing on the application,
such hearing must, if feasible, be held in or near the area
for which application is made; and the transcript of such
hearing and any material submitted at or before the
hearing must be considered as part of the record of the
application and any proceeding related thereto.
(5)(a) The commission may grant or amend a certifi-
cate of authorization, in whole or in part or with modifica-
tions in the public interest, but may not grant authority
greater than that requested in the application or amend-
ment thereto and noticed under this section; or it may
deny a certificate of authorization or an amendment to
a certificate of authorization, if in the public interest. The
commission may deny an application for a certificate of
authorization for any new Class C wastewater system,
as defined by commission rule, if the public can be ade-
quately served by modifying or extending a current
wastewater system. The commission may not grant a
certificate of authorization for a proposed system, or an
amendment to a certificate of authorization for the
extension of an existing system, which will be in compe-
tition with, or a duplication of, any other system or por-
S tion of a system, unless it first determines that such
other system or portion thereof is inadequate to meet
the reasonable needs of the public or that the person
operating the system is unable, refuses, or neglects to
provide reasonably adequate service.
(b) When granting or amending a certificate of
authorization, the commission need not consider
whether the issuance or amendment of the certificate of
authorization is inconsistent with the local comprehen-
sive plan of a county or municipality unless a timely
objection to the notice required by this section has been
made by an appropriate motion or application. If such an
objection has been timely made, the commission shall
consider, but is not bound by, the local comprehensive
plan of the county or municipality.
(6) The revocation, suspension, transfer, or amend-
ment of a certificate of authorization is subject to the
provisions of this section. The commission shall give 30
days' notice before it initiates any such action.
History.-ss. 5, 27, ch. 89-353; s 4. ch. 91-429.

367.071 Sale, assignment, or transfer of certificate
of authorization, facilities, or control.-
(1) No utility shall sell, assign, or transfer its certifi-
cate of authorization, facilities or any portion thereof, or
majority organizational control without determination
and approval of the commission that the proposed sale,
assignment, or transfer is in the public interest and that
the buyer, assignee, or transferee will fulfill the commit-
ments, obligations, and representations of the utility.
(2) The commission may impose a penalty pursuant
to s. 367.161 when a transfer occurs prior to approval by
the commission. The transferor remains liable for any
outstanding regulatory assessment fees, fines, or
refunds of the utility.
(3) An application for proposed sale, assignment, or
transfer shall be accompanied by a fee as provided by
s. 367.145. No fee is required to be paid by a govern-
mental authority that is the buyer, assignee, or trans-
feree.


(4) An application shall be disposed of as provided
in s. 367.045, except that:
(a) The sale of facilities, in whole or part, to a govern-
mental authority shall be approved as a matter of right;
however, the governmental authority shall, prior to tak-
ing any official action, obtain from the utility or commis-
sion with respect to the facilities to be sold the most
recent available income and expense statement, bal-
ance sheet, and statement of rate base for regulatory
purposes and contributions-in-aid-of-construction.
Any request for rate relief pending before the commis-
sion at the time of sale is deemed to have been with-
drawn. Interim rates, if previously approved by the com-
mission, must be discontinued, and any money col-
lected pursuant to interim rate relief must be refunded
to the customers of the utility with interest.
(b) When paragraph (a) does not apply, the commis-
sion shall amend the certificate of authorization as nec-
essary to reflect the change resulting from the sale,
assignment, or transfer.
(5) The commission by order may establish the rate
base for a utility or its facilities or property when the
commission approves a sale, assignment, or transfer
thereof, except for any sale, assignment, or transfer to
a governmental authority.
(6) Any person, company, or organization that
obtains ownership or control over any system, or part
thereof, through foreclosure of a mortgage or other
encumbrance, shall continue service without interrup-
tion and may not remove or dismantle any portion of the
system previously dedicated to public use which would
impair the ability to provide service, without the express
approval of the commission. This provision may be
enforced by an injunction issued by a court of compe-
tent jurisdiction.
History.-s. 1, ch. 71-278 s. 3, ch. 76-168, s. 1. ch. 77-457. ss. 9. 25, 26. ch.
80-99; ss. 2, 3. ch. 81-318; ss. 7, 15, ch. 82-25; ss. 6, 26, 27, ch. 89-353, s. 2. ch.
90-166; s. 4. ch. 91-429.

367.081 Rates; procedure for fixing and changing.
(1) Except as provided in subsection (4) or subsec-
tion (6), a utility may only charge rates and charges that
have been approved by the commission.
(2)(a) The commission shall, either upon request or
upon its own motion, fix rates which are just, reasonable,
compensatory, and not unfairly discriminatory. In every
such proceeding, the commission shall consider the
value and quality of the service and the cost of providing
the service, which shall include, but not be limited to,
debt interest; the requirements of the utility for working
capital; maintenance, depreciation, tax, and operating
expenses incurred in the operation of all property used
and useful in the public service; and a fair return on the
investment of the utility in property used and useful in
the public service. However, the commission shall not
allow the inclusion of contributions-in-aid-of-
construction in the rate base of any utility during a rate
proceeding; and accumulated depreciation on such
contributions-in-aid-of-construction shall not be used
to reduce the rate base, nor shall depreciation on such
contributed assets be considered a cost of providing
utility service. The commission shall also consider the
investment of the utility in land acquired or facilities con-
structed or to be constructed in the public interest


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F....1995.WATER AND WASTEWATER SYSTEMS P.h '27


within a reasonable time in the future, not to exceed,
unless extended by the commission, 24 months from the
end of the historical test period used to set final rates.
(b) In establishing initial rates for a utility, the com-
mission may project the financial and operational data
as set out in paragraph (a) to a point in time when the
utility is expected to be operating at a reasonable level
of capacity.
(3) The commission, in fixing rates, may determine
the prudent cost of providing service during the period
of time the rates will be in effect following the entry of
a final order relating to the rate request of the utility and
may use such costs to determine the revenue require-
ments that will allow the utility to earn a fair rate of return
on its rate base.
(4)(a) On or before March 31 of each year, the com-
mission by order shall establish a price increase or
decrease index for major categories of operating costs
incurred by utilities subject to its jurisdiction reflecting
the percentage of increase or decrease in such costs
from the most recent 12-month historical data available.
The commission by rule shall establish the procedure to
be used in determining such indices and a procedure by
which a utility, without further action by the commission,
or the commission on its own motion, may implement an
increase or decrease in its rates based upon the applica-
tion of the indices to the amount of the major categories
of operating costs incurred by the utility during the
immediately preceding calendar year, except to the
extent of any disallowances or adjustments for those
expenses of that utility in its most recent rate proceed-
ing before the commission. The rules shall provide that,
upon a finding of good cause, including inadequate ser-
vice, the commission may order a utility to refrain from
implementing a rate increase hereunder unless imple-
mented under a bond or corporate undertaking in the
same manner as interim rates may be implemented
under s. 367.082. A utility may not use this procedure
between the official filing date of the rate proceeding
and 1 year thereafter, unless the case is completed or
terminated at an earlier date. A utility may not use this
procedure to increase any operating cost for which an
adjustment has been or could be made under paragraph
(b), or to increase its rates by application of a price index
other than the most recent price index authorized by the
commission at the time of filing.
(b) The approved rates of any utility which receives
all or any portion of its utility service from a governmental
authority or from a water or wastewater utility regulated
by the commission and which redistributes that service
to its utility customers shall be automatically increased
or decreased without hearing, upon verified notice to the
commission 45 days prior to its implementation of the
increase or decrease that the rates charged by the gov-
ernmental authority or other utility have changed. The
approved rates of any utility which is subject to an
increase or decrease in the rates or fees that it is
charged for electric power, the amount of ad valorem
taxes assessed against its used and useful property, the
fees charged by the Department of Environmental Pro-
tection in connection with the National Pollutant Dis-
charge Elimination System Program, or the regulatory
assessment fees imposed upon it by the commission


shall be increased or decreased by the utility, without
action by the commission, upon verified notice to the
commission 45 days prior to its implementation of the
increase or decrease that the rates charged by the sup-
plier of the electric power or the taxes imposed by the
governmental authority, or the regulatory assessment
fees imposed upon it by the commission have changed.
The new rates authorized shall reflect the amount of the
change of the ad valorem taxes or rates imposed upon
the utility by the governmental authority, other utility, or
supplier of electric power, or the regulatory assessment
fees imposed upon it by the commission. The approved
rates of any utility shall be automatically increased, with-
out hearing, upon verified notice to the commission 45
days prior to implementation of the increase that costs
have been incurred for water quality or wastewater qual-
ity testing required by the Department of Environmental
Protection. The new rates authorized shall reflect, on an
amortized basis, the cost of, or the amount of change
in the cost of, required water quality or wastewater qual-
ity testing performed by laboratories approved by the
Department of Environmental Protection for that pur-
pose. The new rates, however, shall not reflect the costs
of any required water quality or wastewater quality test-
ing already included in a utility's rates. A utility may not
use this procedure to increase its rates as a result of
water quality or wastewater quality testing or an
increase in the cost of purchased water services, sewer
services, or electric power or in assessed ad valorem
taxes, which increase was initiated more than 12 months
before the filing by the utility. The provisions of this sub-
section do not prevent a utility from seeking a change
in rates pursuant to the provisions of subsection (2).
(c) Before implementing a change in rates under this
subsection, the utility shall file an affirmation under oath
as to the accuracy of the figures and calculations upon
which the change in rates is based, stating that the
change will not cause the utility to exceed the range of
its last authorized rate of return on equity. Whoever
makes a false statement in the affirmation required here-
under, which statement he or she does not believe to be
true in regard to any material matter, is guilty of a felony
of the third degree, punishable as provided in s.
775.082, s. 775.083, or s. 775.084.
(d) If, within 15 months after the filing of a utility's
annual report required by s. 367.121, the commission
finds that the utility exceeded the range of its last
authorized rate of return on equity after an adjustment
in rates as authorized by this subsection was imple-
mented within the year for which the report was filed or
was implemented in the preceding year, the commission
may order the utility to refund, with interest, the differ-
ence to the ratepayers and adjust rates accordingly.
This provision shall not be construed to require a bond
or corporate undertaking not otherwise required.
(e) Notwithstanding anything herein to the contrary,
a utility may not adjust its rates under this subsection
more than two times in any 12-month period. For the
purpose of this paragraph, a combined application or
simultaneously filed applications that were filed under
the provisions of paragraphs (a) and (b) shall be consid-
ered one rate adjustment.


WATER AND WASTEWATER SYSTELIS


Ph '6R7


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WATER AND WASTEWATER SYSTEMS


(f) The commission may regularly, not less often
than once each year, establish by order a leverage for-
mula or formulae that reasonably reflect the range of
returns on common equity for an average water or
wastewater utility and which, for purposes of this sec-
tion, shall be used to calculate the last authorized rate
of return on equity for any utility which otherwise would
have no established rate of return on equity. In any other
proceeding in which an authorized rate of return on
equity is to be established, a utility, in lieu of presenting
evidence on its rate of return on common equity, may
move the commission to adopt the range of rates of
return on common equity that has been established
under this paragraph.
(5) An application for a rate change must be accom-
panied by a fee as provided by s. 367.145, except that
no fee shall be required for an application for a rate
change made pursuant to subsection (4).
(6) The commission may withhold consent to the
operation of any rate request or any portion thereof by
a vote to that effect within 60 days after the date of filing
of the rate request, or within a shorter period established
by rule of the commission. The order shall state a reason
or statement of good cause for the withholding of con-
sent. The commission shall provide a copy of the order
to the utility and all interested persons who have
requested notice. Such consent shall not be withheld for
a period longer than 8 months following the date of filing.
The new rates or all or any portion thereof not consented
to may be placed into effect by the utility under a bond,
escrow, or corporate undertaking subject to refund at
the expiration of such period upon notice to the commis-
sion and upon filing the appropriate tariffs. The commis-
sion shall determine whether the corporate undertaking
may be filed in lieu of the bond or escrow. The utility shall
keep accurate, detailed accounts of all amounts
received because of such rates becoming effective
under bond, escrow, or corporate undertaking subject
to refund, specifying by whom and in whose behalf such
amounts were paid. In its final order relating to such rate
request, the commission shall direct the utility to refund,
with interest at a fair rate to be determined by the com-
mission in such manner as it may direct, such portion of
the increased rates which are found not to be justified
and which are collected during the periods specified.
The commission shall provide by rule for the disposition
of any funds not refunded, but in no event shall such
funds accrue to the benefit of the utility. The commission
shall take final action on the docket and enter its final
order within 12 months of the official date of filing.
(7) The commission shall determine the reasonable-
ness of rate case expenses and shall disallow all rate
case expenses determined to be unreasonable. No rate
case expense determined to be unreasonable shall be
paid by a consumer. In determining the reasonable level
of rate case expense the commission shall consider the
extent to which a utility has utilized or failed to utilize the
provisions of paragraph (4)(a) or paragraph (4)(b) and
such other criteria as it may establish by rule.
(8) A utility may specifically request the commission
to process its petition for rate relief using the agency's
proposed agency action procedure, as prescribed by
commission rule. The commission shall enter its vote on


the proposed agency action within 5 months of the offi-
cial filing date. If the commission's proposed action is
protested, the final decision shall be rendered by the
commission within 8 months of the date the protest is
filed. At the expiration of 5 months following the official
filing date, if the commission has not taken action or, if
the commission's action is protested by a party other
than the utility, the utility may place its requested rates
into effect under bond, escrow, or corporate undertak-
ing subject to refund, upon notice to the commission
and upon filing the appropriate tariffs. The utility shall
keep accurate records of amounts received as provided
by subsection (6).
History.-s. 1. ch. 71-278; s 5. ch. 74-195; s. 3. ch. 76-168. s. 1, ch. 77-457; s.
53, ch. 78-95; ss. 10, 25, 26, ch. 80-99; ss. 2 3. h. 81318; s 8, 15, ch. 82-25
s. 26, ch. 83-218; s. 3, ch. 84-149; s. 3, ch. 85-85; s. 25. ch. 87-225: ss. 7, 26, 27.
ch. 89-353; s. 3, ch. 90-166; s. 4, ch. 91-429; s. 85. ch. 93-213; s. 184, ch. 94-356;
s. 978, ch. 95-148.

367.0814 Rates and charges; requests for staff
assistance in changing.-
(1) The commission may establish rules by which a
water or wastewater utility whose gross annual reve-
nues are $150,000 or less may request and obtain staff
assistance for the purpose of changing its rates and
charges. A utility may request staff assistance by filing
an application with the commission.
(2) The official date of filing is established as 30 days
after official acceptance by the commission of the appli-
cation. If a utility does not remit a fee, as provided by s.
367.145, within 30 days after acceptance, the commis-
sion may deny the application. The commission has 15
months after the official date of filing within which to
issue a final order.
(3) The provisions of s. 367.081(1), (2)(a), and (3)
shall apply in determining the utility's rates and charges.
(4) The utility, in requesting staff assistance, shall
agree to accept the final rates and charges approved by
the commission unless the final rates and charges pro-
duce less revenue than the existing rates and charges.
(5) In the event of a protest or appeal by a party
other than the utility, the commission may provide for
temporary rates subject to refund with interest.
(6) If a utility becomes exempt from commission reg-
ulation or jurisdiction during the pendency of a staff-
assisted rate case, the request for rate relief is deemed
to have been withdrawn. Temporary rates, if previously
approved, must be discontinued, and any money col-
lected pursuant to the temporary rates must be
refunded to the customers of the utility with interest.
(7) The commission may by rule establish standards
and procedures whereby rates and charges of small util-
ities may be set using criteria other than those set forth
in s. 367.081(1), (2)(a), and (3).
History.-ss. 8. 27, ch. 89-353; s. 4. ch. 91-429.

367.0816 Recovery of rate case expenses.-The
amount of rate case expense determined by the com-
mission pursuant to the provisions of this chapter to be
recovered through a public utilities rate shall be appor-
tioned for recovery over a period of 4 years. At the con-
clusion of the recovery period, the rate of the public util-
ity shall be reduced immediately by the amount of rate
case expense previously included in rates.
History.-s. 9. ch. 89-353: s ch. 90-192; s. 4, ch. 91-429.


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WATER AND WASTEWATER SYSTEMS


367.0817 Reuse projects.-
(1) A utility may submit a reuse project plan for com-
mission approval. A reuse project plan shall include:
(a) A description of the project and other effluent
disposal options considered by the utility.
(b) Copies of the pertinent Department of Environ-
mental Protection and water management district per-
mit applications filed or, in lieu thereof, a statement of
the project's permit status.
(c) A statement that the reuse project is required or
recommended pursuant to s. 403.064 or other relevant
authority.
(d) The number and identity of the project's pro-
posed reuse customers) and copies of written agree-
ments, if any, between the utility and the customers)
regarding the project.
(e) The projected costs associated with the reuse
project. As used in this section, the term "costs"
includes, but is not limited to, all capital investments,
including a rate of return, any applicable taxes, and all
expenses related to or resulting from the reuse project
which were not considered in the utility's last rate pro-
ceeding.
(f) The utility's proposal for recovering the project's
costs through rates.
(g) A proposed inservice schedule for the project.
(h) Any other information the commission may
require pursuant to rule.
(2) The commission shall review the utility's reuse
project plan and shall determine whether the projected
costs are prudent and the proposed rates are reason-
able and in the public interest. The commission shall
issue a proposed agency action order to approve or dis-
approve the utility's reuse project plan. The commission
shall enter its vote on the proposed agency action within
5 months of the date of filing. If the commission's pro-
posed action is protested, the final decision shall be ren-
dered by the commission within 8 months of the date the
protest is filed.
(3) All prudent costs of a reuse project shall be
recovered in rates. The Legislature finds that reuse ben-
efits water, wastewater, and reuse customers. The com-
mission shall allow a utility to recover the costs of a
reuse project from the utility's water, wastewater, or
reuse customers or any combination thereof as deemed
appropriate by the commission.
(4) The commission's order approving the reuse
project plan shall approve rates based on projected
costs and shall provide for the implementation of rates
without the need for a subsequent proceeding. The
commission shall allow the approved rates to be imple-
mented when the reuse project plan is approved or
when the project is placed in service. If the commission
allows the rates to be implemented when the plan is
approved, the commission may order the utility to
escrow the resulting revenues until the project is placed
in service. Escrowed revenues shall be used exclusively
for the reuse project.
(5) If the commission allows the rates to be imple-
mented when the plan is approved, the utility may place
its proposed rates into effect on a temporary basis, sub-
ject to refund, in the event of a protest by a party other
than the utility. If the utility has requested rate imple-


mentation upon approval of the plan and the commis-
sion has exceeded the time allowed in subsection (2),
the utility may place its proposed rates into effect on a
temporary basis, subject to refund.
(6) After the reuse project is placed in service, the
commission, by petition or on its own motion, may ini-
tiate a proceeding to true-up the costs of the reuse proj-
ect and the resulting rates.
History.-s. 1, ch. 94-243.

367.082 Interim rates; procedure.-
(1) The commission may, during any proceeding for
a change of rates, upon its own motion, upon petition
from any party, or by a tariff filing of a utility or a regu-
lated company, authorize the collection of interim rates
until the effective date of the final order. Such interim
rates may be based upon a test period different from the
test period used in the request for permanent rate relief.
Upon application by a utility, the commission may use
the projected test-year rate base when determining the
interim rates or revenues subject to refund. To establish
a prima facie entitlement for interim relief, the commis-
sion, the petitioning party, the utility, or the regulated
company shall demonstrate that the utility or the regu-
lated company is earning outside the range of reason-
ableness on rate of return calculated in accordance with
subsection (5).
(2)(a) In a proceeding for an interim increase in
rates, the commission shall authorize, within 60 days of
the filing for such relief, the collection of rates sufficient
to earn the minimum of the range of rate of return calcu-
lated in accordance with subparagraph (5)(b)2. The dif-
ference between the interim rates and the previously
authorized rates shall be collected under bond, escrow,
letter of credit, or corporate undertaking subject to
refund with interest at a rate ordered by the commission.
(b) In a proceeding for an interim decrease in rates,
the commission shall authorize, within 60 days of the fil-
ing for such relief, the continued collection of the previ-
ously authorized rates; however, revenues collected
under those rates sufficient to reduce the achieved rate
of return to the maximum of the rate of return calculated
in accordance with subsection (5) shall be placed under
bond, escrow, letter of credit, or corporate undertaking
subject to refund with interest at a rate ordered by the
commission.
(c) The commission shall determine whether
escrow, letter of credit, or corporate undertaking may be
filed in lieu of the bond.
(3) In granting such relief, the commission may, in an
expedited hearing but within 60 days of the commence-
ment of the proceeding, upon petition or upon its own
motion, preclude the recovery of any extraordinary or
imprudently incurred expenditures or, for good cause
shown, increase the amount of the bond, escrow, letter
of credit, or corporate undertaking.
(4) Any refund ordered by the commission shall be
calculated to reduce the rate of return of the utility or
regulated company during the pendency of the pro-
ceeding to the same level within the range of the newly
authorized rate of return which is found fair and reason-
able on a prospective basis, but the refund shall not be
in excess of the amount of the revenues collected sub-


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Ch. 367







Ch. 367 WATER AND WASTEWATER SYSTEMS F.S. 1995


ject to refund and in accordance with paragraph (2)(b).
In addition, the commission may require interest on the
refund at a rate established by the commission.
(5)(a) In setting interim rates or setting revenues
subject to refund, the commission shall determine the
revenue deficiency or excess by calculating the differ-
ence between the achieved rate of return of a utility or
regulated company and its required rate of return
applied to an average investment rate base or an end-
of-period investment rate base.
(b) For purposes of this subsection:
1. "Achieved rate of return" means the rate of return
earned by the company for the most recent 12-month
period. The achieved rate of return shall be calculated
by applying appropriate adjustments consistent with
those which were used in the most recent individual rate
proceeding of the utility or regulated company and
annualizing any rate changes occurring during such
period.
2. "Required rate of return" shall be calculated as
the weighted average cost of capital for the most recent
12-month period, using the last authorized rate of return
on equity of the utility or regulated company, the current
embedded cost of fixed-rate capital, the actual cost of
short-term debt, the actual cost of variable-cost debt,
and the actual cost of other sources of capital which
were used in the last individual rate proceeding of the
utility or regulated company.
3. In a proceeding for an interim increase, the term
"last authorized rate of return on equity" used in
subparagraph 2. means the minimum of the range of the
last authorized rate of return on equity established in the
most recent individual rate proceeding of the utility or
regulated company. In a proceeding for an interim
decrease, the term "last authorized rate of return on
equity" used in subparagraph 2. means the maximum of
the range of the last authorized rate of return on equity
established in the most recent individual rate proceed-
ing of the utility or regulated company. The last author-
ized return on equity for purposes of this subsection
shall be established only: in the most recent rate case
of the utility; in a limited scope proceeding for the indi-
vidual utility; by voluntary stipulation of the utility
approved by the commission; or pursuant to s.
367.081(4)(f).
(6) Nothing in this section shall be construed to pro-
hibit the commission from authorizing interim rates for
a utility which does not have an authorized rate of return
previously established by the commission.
(7) If a utility becomes exempt from commission reg-
ulation or jurisdiction during the pendency of a rate
case, the request for rate relief pending before the com-
mission is deemed to have been withdrawn. Interim
rates, if previously approved, must be discontinued, and
any money collected pursuant to interim rate relief must
be refunded to the customers of the utility with interest.
History.-ss. 11, 26, ch. 80-99; ss. 2, 3, ch. 81-318: ss. 9, 15. ch. 82-25; ss. 10,
26, 27. ch. 89-353; s. 4, ch. 91-429; s. 9, ch. 93-35.

367.0822 Limited proceedings.-
(1) Upon petition or by its own motion, the commis-
sion may conduct limited proceedings to consider, and
act upon, any matter within its jurisdiction, including any


matter the resolution of which requires a utility to adlust
its rates. The commission shall determine the issues to
be considered during such a proceeding and may grant
or deny any request to expand the scope of the pro-
ceeding to include other related matters. However,
unless the issue of rate of return is specifically
addressed in the limited proceeding, the commission
shall not adjust rates if the effect of the adjustment
would be to change the last authorized rate of return.
(2) An application for a limited proceeding must be
accompanied by a fee as provided by s. 367.145.
History.-ss. 4, 8. ch. 84-149. ss. 26, 27. ch. 89-353; s. 4. ch. 90-166: s. 4. ch
91-429.

367.083 Determination of official date of filing.-
Within 30 days after receipt of an application, rate'
request, or other written document for which an official
date of filing is to be established, the commission or its
designee shall either determine the official date of filing
or issue a statement of deficiencies to the applicant,
specifically listing why said applicant has failed to meet
the minimum filing requirements. Such statement of
deficiencies shall be binding upon the commission to
the extent that, once the deficiencies in the statement
are satisfied, the official date of filing shall be promptly
established as provided herein. Thereafter, within 20
days after the applicant indicates to the commission
that it believes that it has met the minimum filing require-
ments, the commission or its designee shall either deter-
mine the official date of filing or issue another statement
of deficiencies, specifically listing why the requirements
have not been met, in which case this procedure shall
be repeated until the applicant meets the minimum filing
requirements and the official date of filing is established.
When the commission initiates a proceeding, the official
date of filing shall be the date upon which the order initi-
ating the proceeding is issued.
History.-ss. 4, 26, ch. 80-99; ss. 2. 3. ch. 81-318; ss. 11, 26, 27. ch. 89-353; s.
4, ch. 91-429.

367.084 Rate adjustment orders.-Any order
issued by the commission adjusting general increases
or reductions of the rates and charges of any utility or
regulated company must be reduced to writing includ-
ing any dissenting or concurring opinions within 20 days
after the official vote of the commission. Within such 20-
day period, the commission shall also mail a copy to the
clerk of the circuit court of each county in which custom-
ers of the utility or regulated company are served who
are affected by the rate adjustment, which copy must
be kept on file and made available to the public. The
commission shall notify all parties of record in the pro-
ceeding of the date of such mailing. Such an order is not
considered rendered for purposes of appeal, rehearing,
or judicial review until the date the copies are mailed as
required by this section. This provision does not delay
the effective date of the order. Such an order is consid-
ered rendered on the date of the official vote for the pur-
poses of s. 367.081(6).
History.-ss. 12, 27, ch. 89-353: s. 4. ch. 91-429.

367.091 Rates, tariffs; new class of service.-
(1) All applications for new rates or changes in rates
must be made to the commission in writing as pre-
scribed by rule.


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WATER AND WASTEWATER SYSTEMS Ch. 367


(2) Each utility's rates, charges, and customer ser-
vice policies must be contained in a tariff approved by
and on file with the commission.
(3) A utility may only impose and collect those rates
and charges approved by the commission for the partic-
ular class of service involved. A change in any rate
schedule may not be made without commission
approval.
(4) If any request for service of a utility shall be for
a new class of service not previously approved, the util-
ity may furnish the new class of service and fix and
charge just, reasonable, and compensatory rates or
charges therefore. A schedule of rates or charges so fixed
shall be filed with the commission within 10 days after
the service is furnished. The commission may approve
such rates or charges as filed or may approve such other
rates or charges for the new class of service which it
finds are just, reasonable, and compensatory.
(5) An application to establish, increase, or change
a rate or charge other than the monthly rates for service
pursuant to s. 367.081 or service availability charges
pursuant to s. 367.101 must be accompanied by a cost
justification. The commission may withhold consent to
the operation of any or all portions of the new rate sched-
ules, by a vote to that effect within 60 days giving a rea-
son or statement of good cause for withholding its con-
sent. The commission shall render its final decision on
the application within 8 months after the official date of
filing.
History.-s. 1, ch. 71-278; s. 3. ch. 76-168; s. 1. ch. 77-457; s. 53. ch. 78-95; ss.
12,25,26, ch. 80-99; ss. 2. 3 ch. 81-318; ss. 13,26.27. ch. 89-353; s. 4, ch. 91-429.

367.101 Charges for service availability.-
(1) The commission shall set just and reasonable
charges and conditions for service availability. The com-
mission by rule may set standards for and levels of ser-
vice-availability charges and service-availability condi-
tions. Such charges and conditions shall be just and rea-
sonable. The commission shall, upon request or upon its
own motion, investigate agreements or proposals for
charges and conditions for service availability.
(2) An application for approval of charges and condi-
tions for service availability shall be accompanied by a
fee as provided by s. 367.145.
History.-- 1, ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457. s. 53. ch. 78-95: ss.
13 25.26. ch. 80-99; as. 23. ch. 81-318. ss. 14. 26. 27. ch 89-353 s. 4 ch.91-429.

367.111 Service.-
(1) Each utility shall provide service to the area
described in its certificate of authorization within a rea-
sonable time. If the commission finds that any utility has
failed to provide service to any person reasonably enti-
tled thereto, or finds that extension of service to any
such person could be accomplished only at an unrea-
sonable cost and that addition of the deleted area to
that of another utility company is economical and feasi-
ble, it may amend the certificate of authorization to
delete the area not served or not properly served by the
utility, or it may rescind the certificate of authorization.
If utility service has not been provided to any part of the
area which a utility is authorized to serve, whether or not
there has been a demand for such service, within 5
years after the date of authorization for service to such
part, such authorization may be reviewed and amended
or revoked by the commission.


(2) Each utility shall provide to each person reason-
ably entitled thereto such safe, efficient, and sufficient
service as is prescribed by part VI of chapter 403 and
parts I and II of chapter 373, or rules adopted pursuant
thereto; but such service shall not be less safe, less effi-
cient, or less sufficient than is consistent with the
approved engineering design of the system and the rea-
sonable and proper operation of the utility in the public
interest. If the commission finds that a utility has failed
to provide its customers with water or wastewater ser-
vice that meets the standards promulgated by the
Department of Environmental Protection or the water
management districts, the commission may reduce the
utility's return on equity until the standards are met.
History.-s. 1, ch. 71-278: s. 3, ch. 76-168; s. 1, ch. 77-457; s. 53, ch. 78-95; ss.
1, 2, ch. 79-49; ss. 14, 25, 26, ch. 80-99; ss. 2, 3. ch. 81-318; ss. 15, 26, 27, ch.
89-353; s. 4, ch. 91-429; s. 10, ch. 93-35; s. 185, ch. 94-356.

367.121 Powers of commission.-
(1) In the exercise of its jurisdiction, the commission
shall have power:
(a) To prescribe fair and reasonable rates and
charges, classifications, standards of quality and mea-
surements, and to prescribe service rules to be
observed by each utility, except to the extent such
authority is expressly given to another state agency;
(b) To prescribe, by rule, a uniform system and clas-
sification of accounts for all utilities, which rules, among
other things, shall establish adequate, fair, and reason-
able depreciation rates and charges;
(c) To require such regular or emergency reports
from a utility, including, but not limited to, financial
reports, as the commission deems necessary and, if the
commission finds a financial report to be incomplete,
incorrect, or inconsistent with the uniform system and
classification of accounts, to require a new report or a
supplemental report, either of which the commission
may require to be certified by an independent certified
public accountant licensed under chapter 473;
(d) To require repairs, improvements, additions, and
extensions to any facility, or to require the construction
of a new facility, if reasonably necessary to provide ade-
quate and proper service to any person entitled to ser-
vice or if reasonably necessary to provide any pre-
scribed quality of service, except that no utility shall be
required to extend its service outside the geographic
area described in its certificate of authorization, or make
additions to its plant or equipment to serve outside such
area, unless the commission first finds that the utility is
financially able to make such additional investment with-
out impairing its capacity to serve its existing custom-
ers;
(e) To employ and fix the compensation for such
examiners and technical, legal, and clerical employees
as it deems necessary to carry out the provisions of this
chapter;
(f) To adopt, by affirmative vote of a majority of the
commission, rules reasonably necessary and appropri-
ate for the administration and enforcement of this chap-
ter;
(g) To exercise all judicial powers, issue all writs, and
do all things necessary or convenient to the full and
complete exercise of its jurisdiction and the enforce-
ment of its orders and requirements;


F.S. 1995


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Ch. 367







Ch. 367 WTRADWSEAE YTM ..19


(h) To order interconnections of service or facilities
between utilities, and to approve any plant capacity
charges or wholesale service charges or rates related
thereto, provided the commission first finds that the util-
ity is financially able to make such additional investment
as is required without impairing its capacity to serve its
existing customers;
(i) To require the filing of reports and other data by
a public utility or its affiliated companies, including its
parent company, regarding transactions or allocations
of common costs, among the utility and such affiliated
companies. The commission may also require such
reports or other data necessary to ensure that a utility's
ratepayers do not subsidize nonutility activities;
(j) To seek relief in circuit court including temporary
and permanent injunctions, restraining orders, or any
other appropriate order, because the Legislature finds
that violations of commission orders or rules, in connec-
tion with the impairment of a utility's operations or ser-
vice, constitute irreparable harm for which there is no
adequate remedy at law. Such remedies shall be in addi-
tion to and supplementary to any other remedies avail-
able for enforcement of agency action under s. 120.69
or the provisions of this chapter. The commission shall
establish procedures implementing this section by rule;
and
(k) To assess a utility for reasonable travel costs
associated with reviewing the records bf the utility and
its affiliates when such records are kept out of state. The
utility may bring the records back into the state for
review.
(2) The commission or its duly authorized represent-
atives may, during all reasonable hours, enter upon any
premises occupied by any utility and set up and use
thereon any necessary apparatus and appliance for the
purpose of making investigations, inspections, examina-
tions, and tests and exercising any power conferred by
this chapter. Such utility shall have the right to be noti-
fied of and be represented at the making of such investi-
gations, inspections, examinations, and tests.
History.-s. 1, ch. 71-278; s. 3, ch. 76-168: s. 1, ch. 77-457; s. 53, ch. 78-95; ss.
15, 25, 26, ch. 80-99; ss. 2,3. ch. 81-318; ss. 16, 26, 27, ch. 89-353; s. 4, ch. 91-429;
s. 11, ch. 93-35.

367.122 Examination and testing of meters.-
(1) The commission may provide for the examination
and testing of all meters used for measuring any product
or service of a utility.
(2) Any customer or user may have any such meter
tested by the utility upon payment of the fee fixed by the
commission.
(3) The commission shall establish reasonable fees
to be paid for testing such meters on the request of the
customers. Current utility customers or users may, at
their discretion, pay the fee fixed by the commission at
the time of the request or have the utility include the fee
with their next regularly scheduled statement. However,
the fee shall be paid by the utility and repaid to the cus-
tomer or user if the meter is found defective or incorrect
to the disadvantage of the customer or user in excess
of the degree or amount of tolerance customarily
allowed for such meters, or as may be provided for in
rules and regulations of the commission. No fee may be
charged for any such testing done by the commission
or its representatives.


(4) The commission may purchase materials, appa-
ratus, and standard measuring instruments for such
examinations and tests.
History.-s. 1. ch. 71-278: s 100, ch 73-333, s. 3. ch 76-168; s. 1. ch. 77-457;
ss 16, 25, 26, ch 80-99; ss. 2, 3 ch. 81-318. ss 1/. 26. 27, h. 89--353; s. 4, ch.
91-429

367.123 Service for resale.-The commission may
require a utility to provide service for resale. However,
before requiring the provision of service, the commission
shall first find that the utility is financially able to make
such additional investment as is required without impair-
ing its capacity to serve its existing customers. Any util-
ity which provides service for resale shall provide such
service upon terms and conditions established by the
commission, and no utility shall discontinue such service
without the approval of the commission. In the event a
governmental authority voluntarily enters into an agree-
ment for resale, such agreement shall provide that the
service will not be discontinued without 90 days' notice
being given to the purchaser prior to discontinuing such
service. Nothing contained herein shall be construed to
prohibit the governmental authority from requiring ade-
quate security being given to such authority to ensure
payments required in the agreement.
History.-s. 1, ch. 71-278; s. 3, ch. 76-168: s. ch. 77-457; ss. 17, 25, 26, ch.
80-99; s. 218. ch. 81-259; ss. 2. 3. ch. 81-318; ss. 18. 26. 27. ch. 89-353; s. 4, ch.
91-429.

367.145 Regulatory assessment and application
fees.-
(1) The commission shall set by rule a regulatory
assessment fee that each utility must pay once a year
in conjunction with filing its annual financial report
required by commission rule. Notwithstanding any provi-
sion of law to the contrary, the amount of the regulatory
assessment fee shall not exceed 4.5 percent of the
gross revenues of the utility derived from intrastate busi-
ness, excluding sales for resale made to a regulated
company.
(a) A governmental authority to which ownership or
control of a utility is transferred is not liable for any fees
owed the commission by the utility as of the date of
transfer. However, whenever a purchase at wholesale is
made of any water or wastewater service and a fee is
paid or payable thereon by the selling utility and the util-
ity purchasing such water or wastewater service resells
the same directly to customers, the purchasing utility is
entitled to, and must receive, credit on such fees as may
be due by it under this section to the extent of the fee
paid or payable upon such water or wastewater service
by the utility from which such purchase was made. All
such fee payments and penalties must be deposited in
accordance with s. 350.113.
(b) In addition to the penalties and interest other-
wise provided, the commission may impose a penalty
upon a utility for failure to pay regulatory assessment
fees in a timely manner in accordance with s. 367.161.
(2) Each utility shall pay an application fee, estab-
lished by the commission, for an original certificate of
authorization; an amendment to an existing certificate of
authorization; a request for rate relief in accordance with
s. 367.081 or s. 367.0814; a proceeding pursuant to s.
367.0822; service availability charges filed in accord-
ance with s. 367.101; and when this chapter becomes


F.S. 1995


Ch. 367


WATER AND WASTEWATER SYSTEMS







AFTER AND WASTEWATER SYSTEMS Ch 367


applicable to a county in accordance with s. 367.171.
The amount of the application fee determined by the
commission may not exceed $4,500 and must be based
upon the existing or proposed capacity of the system,
extension, or deletion. All such fee payments must be
deposited in accordance with s. 350.113.
(3) Fees collected by the commission pursuant to
this section may only be used to cover the cost of regu-
lating water and wastewater systems. Fees collected by
the commission pursuant to chapters 364 and 366 may
not be used to pay the cost of regulating water and
wastewater systems.
History.-ss 19. 27, ch. 89-353; s. 5, ch. 90-166; s. 4, ch. 91-429.

367.156 Public utility records; confidentiality.-
(1) The commission shall continue to have reason-
able access to all utility records and records of affiliated
companies, including its parent company, regarding
transactions or cost allocations among the utility and
such affiliated companies, and such records necessary
to ensure that a utility's ratepayers do not subsidize
nonutility activities. Upon request of the utility or any
other person, any records received by the commission
which are shown and found by the commission to be
proprietary confidential business information shall be
kept confidential and shall be exempt from s. 119.07(1).
(2) Discovery in any docket or proceeding before
the commission shall be in the manner provided for in
Rule 1.280 of the Florida Rules of Civil Procedure. Infor-
mation which affects a utility's rates or cost of service
shall be considered relevant for purposes of discovery
in any docket or proceeding where the utility's rates or
cost of service are at issue. The commission shall deter-
mine whether information requested in discovery affects
a utility's rates or cost of service. Upon showing by a util-
ity or other person and a finding by the commission that
discovery will require the disclosure of proprietary confi-
dential business information, the commission shall issue
appropriate protective orders designating the manner
for handling such information during the course of the
proceeding and for protecting such information from
disclosure outside the proceeding. Such proprietary
confidential business information shall be exempt from
s. 119.07(1). Any records provided pursuant to a discov-
ery request for which proprietary confidential business
information status is requested shall be treated by the
commission and the office of the Public Counsel and any
other party subject to the public records act as confi-
dential and shall be exempt from s. 119.07(1), pending
a formal ruling on such request by the commission or the
return of the records to the person providing the rec-
ords. Any record which has been determined to be pro-
prietary confidential business information and is not
entered into the official record of the proceeding must
be returned to the person providing the record within 60
days after the final order, unless the final order is
appealed. If the final order is appealed, any such record
must be returned within 30 days after the decision on
appeal. The commission shall adopt the necessary rules
to implement this provision.
(3) Proprietary confidential business information
means information, regardless of form or characteristics,
which is owned or controlled by the person or company,


is intended to be and is treated by the person or com-
pany as private in that the disclosure of the information
would cause harm to the ratepayers or the person's or
company's business operations, and has not been dis-
closed unless disclosed pursuant to a statutory provi-
sion, an order of a court or administrative body, or a pri-
vate agreement that provides that the information will
not be released to the public. Proprietary business infor-
mation includes, but is not limited to:
(a) Trade secrets.
(b) Internal auditing controls and reports of internal
auditors.
(c) Security measures, systems, or procedures.
(d) Information concerning bids or other contractual
data, the disclosure of which would impair the efforts of
the utility or its affiliates to contract for goods or services
on favorable terms.
(e) Information relating to competitive interests, the
disclosure of which would impair the competitive busi-
nesses of the provider of the information.
(f) Employee personnel information unrelated to
compensation, duties, qualifications, or responsibilities.
(4) Any finding by the commission that records con-
tain proprietary confidential business information is
effective for a period set by the commission not exceed-
ing 18 months, unless the commission finds, for good
cause, that the protection from disclosure shall be for a
specified longer period. The commission shall order the
return of records containing proprietary confidential
business information when such records are no longer
necessary for the commission to conduct its business.
At that time, the commission shall order any other per-
son holding such records to return them to the person
providing the records. Records containing proprietary
confidential business information which have not been
returned at the conclusion of the period set pursuant to
this subsection shall no longer be exempt from s.
119.07(1), unless the public utility or affected person
shows, and the commission finds, that the records con-
tinue to contain proprietary confidential business infor-
mation. Upon such finding, the commission may extend
the period for confidential treatment for a period not to
exceed 18 months, unless the commission finds, for
good cause, that the protection from disclosure shall be
for a specified longer period. During commission consid-
eration of an extension, the records in question will
remain exempt from s. 119.07(1). The commission shall
adopt rules to implement this provision which shall
include notice to the public utility or affected person
regarding the expiration of confidential treatment.
(5) This section is not subject to review pursuant to
the provisions of 's. 119.14.
History.-ss. 10, 15, ch. 82-25; ss. 20, 26, 27. ch. 89-353; s. 4, ch. 91-429.
'Note.--
A. Repealed by s. 1, ch. 95-217
B. Section 4, ch. 95-217, provides that notwithstandingig any provision of law
to the contrary, exemptions from chapter 119, Florida Statutes, or chapter 286, Flor-
ida Statutes, which are prescribed by law and are specifically made subject to the
Open Government Sunset Review Act in accordance with section 119.14, Florida
Statutes, are not subject to review under that act, and are not abrogated by the oper-
ation of that act, alter October 1, 1995."

367.161 Penalties.-
(1) If any utility, by any authorized officer, agent, or
employee, knowingly refuses to comply with, or willfully
violates, any provision of this chapter or any lawful rule


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or order of the commission, such utility shall incur a pen-
alty for each such offense of not more than $5,000, to
be fixed, imposed, and collected by the commission.
However, any penalty assessed by the commission for
a violation of s. 367.111(2) shall be reduced by any pen-
alty assessed by any other state agency for the same
violation. Each day that such refusal or violation contin-
ues constitutes a separate offense. Each penalty shall
be a lien upon the real and personal property of the util-
ity, enforceable by the commission as statutory liens
under chapter 85. The proceeds from the enforcement
of any such lien shall be deposited into the General Rev-
enue Fund.
(2) The commission has the power to impose upon
any entity that is subject to its jurisdiction under this
chapter and that is found to have refused to comply
with, or to have willfully violated, any lawful rule or order
of the commission or any provision of this chapter a pen-
alty for each offense of not more than $5,000, which pen-
alty shall be fixed, imposed, and collected by the com-
mission; or the commission may, for any such violation,
amend, suspend, or revoke any certificate of authoriza-
tion issued by it. Each day that such refusal or violation
continues constitutes a separate offense. Each penalty
shall be a lien upon the real and personal property of the
entity, enforceable by the commission as a statutory lien
under chapter 85. The collected penalties shall be
deposited into the General Revenue Fund unallocated.
History.-s. 1. ch. 71-278; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 21. 25, 26, ch.
80-99; ss. 2, 3, ch. 81-318; ss. 6, 8, ch. 84-149; ss. 21, 26 27. ch. 89-353; s. 4, ch.
91-429.

367.165 Abandonment.-It is the intent of the Leg-
islature that water or wastewater service to the custom-
ers of a utility not be interrupted by the abandonment
or placement into receivership of the utility. To that end:
(1) No person, lessee, trustee, or receiver owning,
operating, managing, or controlling a utility shall aban-
don the utility without giving 60 days' notice to the
county or counties in which the utility is located and to
the commission. Anyone who violates the provisions of
this subsection is guilty of a misdemeanor of the first
degree, punishable as provided in s. 775.082 or s.
775.083. Each day of such abandonment constitutes a
separate offense. In addition, such act is a violation of
this chapter, and the commission may impose upon the
utility a penalty for each such offense of not more than
$5,000 or may amend, suspend, or revoke its certificate
of authorization; each day of such abandonment without
prior notice constitutes a separate offense.
(2) After receiving such notice, the county, or coun-
ties acting jointly if more than one county is affected,
shall petition the circuit court of the judicial circuit in
which such. utility is domiciled to appoint a receiver,
which may be the governing body of a political subdivi-
sion or any other person deemed appropriate. The
receiver shall operate the utility from the date of aban-
donment until such time as the receiver disposes of the
property of the utility in a manner designed to continue
the efficient and effective operation. of utility service.
(3) The notification to the commission under subsec-
tion (1) is sufficient cause for revocation, suspension, or
amendment of the certificate of authorization of the util-
ity as of the date of abandonment. The receiver operat-


ing such utility shall be considered to hold a temporary
authorization from the commission, and the approved
rates of the utility shall be deemed to be the interim rates
of the receiver until modified by the commission.
History.--ss. 23. 26. ch 0) .99: :; ;. 2, c1 h I 3I18:; ; :ch 84 -149: ss. 22. 26,
27. ch. 89-353; s 51. ch 91 224, :; h 1. l 42'

367.171 Effectiveness of this chapter.-
(1) The provisions of this chapter shall become
effective in a county of this state upon the adoption of
a resolution by the board of county commissioners of
such county, or, in counties operating under a
countywide charter, by the appropriate board, declaring
that such county is subject to the provisions of this
chapter. Any board of county commissioners which
adopts such a resolution shall immediately notify the
commission of its adoption and submit the resolution to
the commission. A county, after 10 continuous years
under the jurisdiction of the commission, may by resolu-
tion or ordinance rescind any prior resolution or ordi-
nance imposing commission jurisdiction and thereby
exclude itself from the provisions of this chapter, except
that the county may not exclude itself from the provi-
sions of this section.
(2)(a) Within 30 days after this chapter becomes
applicable to a county, each utility shall register by filing
with the commission a written statement setting forth
the full legal name of the utility, its mailing address, and
a brief description of its service area.
(b) On the day this chapter becomes applicable to
any county, any utility engaged in the operation or con-
struction of a system shall be entitled to receive a certifi-
cate for the area served by such utility on the day this
chapter becomes applicable to it. Within 90 days after
the day this chapter becomes applicable to it, the utility
shall make application for a certificate by filing with the
commission:
1. A map of its existing system or system under
construction;
2. A description of the area served by the system;
and
3. A tariff listing all rates and charges and such
other financial information as may be required by the
commission.
Such application shall be accompanied by a fee as pro-
vided by s. 367.145. If a utility fails to register with the
commission within the prescribed time, the commission
may require that the utility apply for an original certifi-
cate of authorization in accordance with s. 367.045.
(c) Before the commission issues a certificate of
authorization under paragraph (b), it may establish the
amount of money prudently invested in property of the
utility, which property is used and useful in the public
service; may establish other elements of the rate base;
and may set and approve rates pursuant to s. 367.081.
(3) In consideration of the variance of powers,
duties, responsibilities, population, and size of munici-
palities of the several counties and in consideration of
the fact that every county varies from every other county
and thereby affects the functions, duties, and responsi-
bilities required of its county officers and the scope of
responsibilities which each county may, at this time,
undertake, the Counties of Alachua, Baker, Bradford,


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F.S. 1995 WATER AND WASTEWATER SYSTEMS Ch. 367


Calhoun, Charlotte, Dade, Dixie, Escambia, Gadsden,
Gilchrist, Glades, Hamilton, Hardee, Hendry, Hills-
borough, Holmes, Indian River, Jefferson, Lafayette,
Leon, Liberty, Madison, Manatee, Okaloosa, Okeecho-
bee, Polk, St. Lucie, Santa Rosa, Sarasota, Suwannee,
Taylor, Union, Wakulla, and Walton are excluded from
the provisions of this chapter until such time as the
board of county commissioners of any such county, act-
ing pursuant to the provisions of subsection (1), makes
this chapter applicable to such county or until the Legis-
lature, by appropriate act, removes one or more of such
counties from this exclusion.
(4) As of the day a utility is no longer regulated by
the commission under this chapter, each such utility
which is engaged in the operation or construction of a
system shall be entitled to receive from the county in
which it is located and operating a certificate of authori-
zation for each area for which such utility held a certifi-
cate of authorization from the commission on the day
the utility became subject to regulation by the county.
The utility will make application by filing with the govern-
ing body of the county:
(a) A map of its existing system or system under
construction;
(b) A certified copy of the certificate of authorization
issued by the commission, including a legal description
of the service area for which the certificate of authoriza-
tion was issued;
(c) A tariff, listing all rates and charges then in
effect, which shall remain in effect until thereafter law-
fully changed;
(d) A copy of the operating regulations and proce-
dures of the utility then in effect, which shall remain in
effect until thereafter lawfully changed; and
(e) The then current rate base of the utility, which
shall then continue to be the rate base of the utility until
thereafter lawfully changed.
(5) When a utility becomes subject to regulation by
a county, all cases in which the utility is a party then
pending before the commission, or in any court by
appeal from any order of the commission, shall remain
within the jurisdiction of the commission or court until
disposed of in accordance with the law in effect on the
day such case was filed by any party with the commis-
sion or initiated by the commission, whether or not the


parties or the subject of any such case relates to a utility
in a county wherein this chapter no longer applies.
(6) Any county in which utilities as herein defined
were regulated by the commission on or after January
1, 1980, which subsequently cease to be so regulated,
shall, within 90 days of the cessation of commission reg-
ulation, adopt and follow as minimum standards of regu-
lation the provisions of s. 367.081, except for paragraph
(4)(a), and s. 367.082, except that the word
"commission" shall be read as "the governing body of
such county" when the context implies or admits. The
authorized rate of return shall be no less than the
weighted cost of the capital of the utility, including debt
and equity.
(7) Notwithstanding anything in this section to the
contrary, the commission shall have exclusive jurisdic-
tion over all utility systems whose service transverses
county boundaries, whether the counties involved are
jurisdictional or nonjurisdictional, except for utility sys-
tems that are subject to, and remain subject to,
interlocal utility agreements in effect as of January 1,
1991, that create a single governmental authority to reg-
ulate the utility systems whose service transverses
county boundaries, provided that no such interlocal
agreement shall divest commission jurisdiction over
such systems, any portion of which provides service
within a county that is subject to commission jurisdiction
under s. 367.171.
(8) Each county which is excluded from the provi-
sions of this chapter shall regulate the rates of all utilities
in that county which would otherwise be subject to regu-
lation by the commission pursuant to s. 367.081(1), (2),
(3), and (6). For this purpose the county or its agency
shall proceed as though the county or agency is the
commission.
History.-s. 1. ch. 71-278; s. 1, ch. 73-193; s. 3, ch. 76-168; s. 1, ch. 77-457; ss.
22. 25, 26. ch. 80-99; ss. 2. 3, ch. 81-318: ss. 12, 15, ch. 82-25; s. 4, ch. 85-85; ss.
23. 26, 27, ch. 89-353; s. 6, ch. 90-166; s. 1, ch. 90-350; s. 4, ch. 91-429.

367.182 Saving clause.-AII certificates and autho-
rizations valid on the effective date of chapter 80-99,
Laws of Florida, shall remain in full force and effect.
Henceforth, all certificates and authorizations shall be
applied for in accordance with this act.
History.-s. 24 ch. 80-99; s. 2. ch. 81-318; ss. 24, 26, 27. ch. 89-353; s. 4, ch.
91-429.


F.S. 1995


WATER AND WASTEWATER SYSTEMS


Ch. 367




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