Administrative Rule Review Report #ARR-037
Legislative Service Office
12-Aug-11
AGENCY: Office of State Lands and Investments
DATE SUBMITTED: 8/11/2011
SUBJECT: Chapter 33, Energy Impacted County Roads Program Grants.
NATURE OF RULES: Procedural and Legislative
STATUTORY AUTHORITY: W.S. 9-16-102(a)
DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION SUBMITTED BY THE AGENCY TO LSO. Notice of the proposed adoption of new rules was provided by the LSO as required by W.S. 28‑9‑103(d). No comments have been received to date. Otherwise, procedural compliance is apparently complete to date.
SUMMARY OF RULES:
These rules create the guidelines whereby an energy impacted county may receive grants from the Energy Impacted County Road Program (the "Program") to construct or reconstruct an energy impacted road. The Program is administered by the State Loan and Investment Board (the "Board") through the Office of State Lands and Investments ("OSLI"). The rules also determine the costs associated with energy impacted roads that are eligible for reimbursement with grant funds and establishes evaluation criteria for applications submitted under the program.
Section 2 of Chapter 33 contains definitions for the Program, including the definition for "Energy impacted counties" which lists those counties which are eligible to receive grants under the Program for their energy impacted roads. Those counties are: Campbell, Converse, Goshen, Hot Springs, Laramie, Natrona, Niobrara, Park, Platte and Washakie.
Section 3 contains the general policy of the Board when administering the Program, including that all grants awarded under the Program shall inure to the greatest benefit of the citizens of the state and represent a prudent use of grant funds. Section 5 deals with Grant Eligibility and Ineligible Project Costs. Section 6 specifies what criteria the Board shall consider when reviewing grant applications under the Program. Section 8 specifies when grant funds shall be disbursed and when unused grant funds shall revert.
FINDINGS:
These rules are the same as the emergency rules adopted earlier this interim. LSO noted in that emergency rule review that there was some concern as to whether the agency exceeded its statutory authority and legislative intent in creating additional criteria for the Board to consider in making grants and in limiting authorized expenditures. The review referenced legal authority for the proposition that if the statutory listing for eligibility criteria were considered exclusive, adding to that list by rule would be problematic. At the same time, as noted in the emergency rule review, the legislation creating the program was very broad and gave the Board little guidance on a number of issues necessary to implement the program. With the lack of specifics, it is arguable that the Legislature intended the listings of criteria to qualify for grants and items not qualifying for grant funding to be non-exhaustive. Given the lack of specifics and with no comments received by either the sponsor of the legislation creating the program or the standing committee which reviewed the legislation (and made significant amendments) it appears that the rules should be considered to be within the agency's statutory authority and the intent of the Legislature.[1]
STAFF RECOMMENDATION:
That the rules be placed on the Consent List and be approved by the Council as submitted by the Agency.
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Matthew D. Obrecht
Staff Attorney
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David K. Gruver
Assistant Director
MDO
[1] "When the legislative mandate is broad, as in this case, the administrative agency must invoke expertise to create standards, which will furnish notice to the public of how the decision may be reached. The creation of such standards serves to eliminate any need to develop standards on a case by case basis, which is time-consuming; may lead to inconsistent results; and severely inhibits judicial review." Rissler & McMurray Co. v. Environmental Quality Council (In re Bessemer Mt.), 856 P.2d 450, 454 (Wyo. 1993).