Lands and Investments, Office of

Loan and Investment Board

Chapter 41: Water and Sewer ARPA Grants

Effective Date: 12/08/2022 to Current

Rule Type: Current Rules & Regulations

Reference Number: 060.0003.41.12082022

Chapter 41

Water and Sewer ARPA Grants

Section 1. Authority. This Chapter is adopted pursuant to 2022 Wyoming Session Laws Ch. 50, §§ 2, FN 18; 3(d).

Section 2. Definitions. In addition to the definitions in Chapter 1, as used in this Chapter:

1. (a) “ARPA” means the federal American Rescue Plan Act, Pub. L. 117–2.
2. (b) “Business Days” means Monday through Friday, except for federal or state holidays.
3. (c) “COVID-19” means as defined in W.S. § 1-1-141(a)(ii).
4. (d) “Eligible project” means a project authorized under 31 C.F.R. § 35.6(e)(1).
5. (e) “Final Rule” means the Treasury’s regulations governing the Coronavirus State and Local Fiscal Recovery Funds, 87 Fed. Reg. 4338–4454 (Jan. 27, 2022) (codified at 31 C.F.R. pt. 35).
6. (f) “Fund” means the fifty million dollars ($50,000,000.00) appropriated to the Board for eligible water and sewer projects by 2022 Wyo. Sess. Laws Ch. 50, § 2 from the State and Local Fiscal Recovery Fund.
7. (g) “Incurred.” A cost has been “incurred” when the recipient has incurred an obligation with respect to such cost.
8. (h) “Tribal Councils” means the Northern Arapaho Business Council and Eastern Shoshone Business Council on the Wind River Reservation. The term “Tribal Councils” does not include businesses, not-for-profit organizations, or any other entity owned or operated by the tribes or tribal members.

Section 3. General Policy. The Board may award grants under the provisions of this Chapter in accordance with applicable state and federal law and in such a manner and to such applicants as shall, in the judgment of the Board, inure to the greatest benefit of the citizens of the state and represent a prudent use of the Fund.

Section 4. Award of Funds.

1. (a) The Board may award grants from the Fund.
2. (b) The Office shall only disburse awarded funds to reimburse applicants for eligible expenses from projects approved by the Board.
3. (c) The maximum grant for any single project shall be seven million, five hundred thousand dollars ($7,500,000.00).
4. (d) All grant awards shall be contingent upon a match of funds in a ratio of no more than eighty-five cents ($0.85) of grant funds to no less than fifteen cents ($0.15) from matching funds provided by the project sponsor.
5. (i) All match funds shall be committed prior to the Board approving a grant under this Chapter.
6. (ii) An applicant may provide match funds from any eligible source. Applicants shall be responsible for ensuring that their match funding may legally be used as a match for the purposes of this program.
7. (iii) Loans from the Board, including capital construction loans and state revolving fund loans, may only be used as match funding for the purposes of this Chapter if the loan has been previously awarded and there is an executed loan agreement.

Section 5. Eligible Applicants.

Section 5. Eligible Applicants.

(i) Cities, towns, counties, and special districts providing water and sewer services shall be eligible to apply for grants under this Chapter.

(ii) The Tribal Councils shall be eligible to apply for grants under this Chapter on the same terms as the governmental entities identified in paragraph (i) of this subsection. Businesses owned by the Tribes or tribal members shall not be eligible for grants under this Chapter.

(b) To be eligible for a grant under this Chapter, an applicant must:

(i) Be a legally formed and approved entity prior to submitting an application;

(ii) Be an eligible applicant for water and sewer improvements under all applicable federal and state laws.

(iii) Be in compliance with all applicable reporting requirements with the Wyoming Department of Audit and Wyoming Department of Revenue prior to its application being considered by the Board; and

(iv) Own all aspects of the project, unless the project is authorized under 31 C.F.R. § 35.6(e)(1)(vii).

Section 6. Project Eligibility. All grants awarded under this Chapter must be eligible under 42 U.S.C. § 802(c)(1)(D) and 31 C.F.R. § 35.6(e)(1). Pursuant to 31 C.F.R. § 35.5(a), grants awarded from the fund shall only be used to cover costs incurred during the period beginning on March 3, 2021, and ending on December 31, 2024 for an eligible project.

Section 7. Application Procedure

(a) Applications. Separate applications shall be prepared for each individual project. Applicants shall submit applications in a manner prescribed by the Office. All applications shall be properly executed by the officers of the applicant.

(b) Timing. The Board may establish one (1) or more open application periods by providing notice to the public on the Office's website. The Board may modify an open application period at any time before the end of the application period. After the close of each application period, the Board shall designate a regular or special meeting to consider applications received during the application period and post notice of that meeting on the Office's website. Applications received by the Office after the close of the application period will not be considered at the designated Board meeting, but may be resubmitted during any later application period designated by the Board.

(c) Required Information. The following information shall be provided by all applicants:

(i) A complete application on a form provided by the Office;

(ii) A written justification explaining why the project is necessary. The justification under this paragraph shall provide:

(A) A detailed description of how the project is responsive to an identified need to achieve or maintain an adequate minimum level of service;

(B) An explanation of how the proposed capital expenditure will provide an adequate minimum level of service;

(C) An explanation of how the project is cost effective, which shall include a comparison of the proposed capital project against alternative capital expenditures and a demonstration of how the proposed capital expenditure is superior; and (D) An explanation of how the project will be maintained over the useful life of the infrastructure.

(iii) A standard resolution authorizing the filing of the application on a form provided by the Office;

(iv) A certification statement attesting that the funds being requested will be used in accordance with all requirements and conditions of ARPA. If it is determined that the funds were not used as intended, they shall be paid back to the Office within fifteen (15) Business Day following notification;

(v) If the applicant is a special district, a copy of the resolution that shows formation of the special district and certification from the applicable Board of County Commissioners that the special district currently exists;

(vi) If the applicant is a joint powers board, a copy of the certificate of organization filed with the Secretary of State, and a copy of an executed joint powers agreement approved by the Attorney General;

(vii) The amount of any CARES grants awarded by the State and any ARPA State and Local Fiscal Recovery Funds the applicant has received and a brief summary of how the funds were spent, or plan to be spent; and

(viii) Other applicable information as requested by the Office.

(d) Additional Information Required. If the funding request is for the purchase of a building or land, a market analysis must be completed to determine the fair-market value. Office staff shall review and approve the methodology used for valuation and the overall market value prior to grant funds being disbursed for reimbursement of related costs.

(e) Preliminary Review. The Office shall notify the applicant, in writing, if the application lacks any of the items required in sub-Sections (c) and (d) of this section. The applicant shall have five (5) Business Days to submit the required information.

(f) False or Misleading Statements.

(i) Any false or misleading statements made by the applicant in an application shall be grounds for summary rejection of the application.

(ii) Any requests made for reimbursement that are determined to be false or misleading and/or ultimately ineligible after the funds have been disbursed shall be paid back to the Office within fifteen (15) Business Days following notification.

(g) Incomplete Applications. Applications that are missing one (1) or more of the information items requested and/or fail to meet established deadlines, shall not be presented to the Board for consideration.

(h) Summary Rejection. The Office shall summarily reject all applications that are clearly ineligible under this Chapter or ARPA.

Section 8. Ineligible Project Expenses.

(a) Ineligible Project Costs. The following is a non-exclusive list of project costs ineligible for reimbursement from the Funds:

(i) Revenue replacement;

(ii) Debt service and replenishment of rainy day funds;

(iii) Satisfaction of settlements and judgments;

(iv) Any use that disregards or violates federal conflict of interest requirements, or other federal, state, and local laws and regulations;

(v) Damages covered by insurance;

1. (vi) Costs incurred prior to March 3, 2021;
2. (vii) Payroll or benefit expenses;
3. (viii) Expenses that have been or will be reimbursed under any federal program, such as the reimbursement by the federal government pursuant to ARPA;
4. (ix) Any expense that is ineligible under ARPA, the final rule, or the guidance;
5. (x) Reimbursement to donors for donated items or services;
6. (xi) Workforce bonuses;
7. (xii) Severance pay;
8. (xiii) Prepayment on contracts;
9. (xiv) Costs for tap fees, sewer and water fees, and plant investment fees;
10. (xv) All non-cash costs;
11. (xvi) Costs for preparation or presentation of applications;
12. (xvii) Costs for transportation, meals and lodging and incidentals incurred anywhere away from the site of the project or that exceed the current federal per diem reimbursement rate;
13. (xviii) Costs related to issuance of bonds;
14. (xix) Costs for real property in excess of current fair market value and/or costs for an amount of real property in excess of that needed for project purposes;
15. (xx) Costs to establish and form special districts or joint powers boards;
16. (xxi) Costs for a contingency or extra work allowance in excess of 10% of estimated construction costs;
17. (xxii) Costs of elections;
18. (xxiii) Retirement of debt;
19. (xxiv) Legal fees unless preapproved by OSLI;
20. (xxv) Costs associated with the applicant's equipment; and
21. (xxvi) Markups by engineers/architects of sub-consultant and other outside charges.

Section 9. Evaluation Criteria. The Board shall evaluate applications utilizing the criteria established in this section.

1. (a) In determining whether to award a grant, the Board shall consider:
2. (i) Whether the project is an eligible expenditure under applicable State and Federal law;
3. (ii) Whether the project will inure to the benefit of the citizens of the state;
4. and
5. (iii) Whether the project represents a prudent use of the fund.
6. (b) To assist the Board in prioritizing among eligible projects, the Office shall compute a score for each project in accordance with this subsection. The Office shall calculate a score for each project based on:
7. (i) The status of the proposed project;

(A) Applications submitted for additional funding for a project currently in the construction phase shall receive three (3) points.

(B) Applications submitted for funding for a project that has been designed and is ready to bid shall receive two (2) points.

(C) Applications seeking funding for a project that has not yet been designed shall receive one (1) point.

(ii) The amount of match funding being provided by the applicant;

(A) Applicants providing fifty percent (50%) or more in match funding shall receive five (5) points.

(B) Applicants providing thirty-six percent (36%) to forty-nine (49%) in match funding shall receive four (4) points.

(C) Applicants providing twenty-six percent (26%) to thirty-five percent (35%) in match funding shall receive three (3) points.

(D) Applicants providing sixteen percent (16%) to twenty-five percent (25%) in match funding shall receive two (2) points.

(E) Applicants providing the minimum fifteen percent (15%) in match funding shall receive zero (0) points.

(iii) The source of match funding;

(A) If the applicant’s entire match is a loan or from the applicant’s enterprise account, the applicant shall receive three (3) points;

(B) If the applicant’s match is partially funded by a loan or from the applicant’s enterprise account, the applicant shall receive two (2) points;

(C) If the applicant’s match is entirely grant funded, the applicant shall receive zero (0) points.

(iv) The applicant’s submissions to the Office’s State Revolving Fund Intended Use Plan (IUP);

(A) If the proposed project is on the current 2022 IUP, applicant shall receive one (1) point.

(B) If the proposed project is not on the current 2022 IUP, the applicant shall receive zero (0) points.

(v) The population served by the proposed project;

(A) Applicants whose population is five hundred (500) or less shall receive three (3) points.

(B) Applicants whose population is between five hundred one (501) and three thousand, three hundred (3,300) shall receive two (2) points.

(C) Applicants whose population is between three thousand, three hundred one (3,301) and ten thousand (10,000) shall receive one (1) point.

(D) Applicants whose population is greater than ten thousand (>10,000) shall receive zero (0) points.

(vi) The severity of the impact of the COVID-19 public health emergency;

(A) The percentage of revenue loss attributed to the public health emergency, as determined by comparing the applicant’s revenues for the 2020–2021 fiscal year to the previous three years.

(I) Applicants with a ten percent (10%) to nineteen percent (19%) decrease in revenue shall receive one (1) point.

(II) Applicants with a twenty percent (20%) to twenty-nine percent (29%) decrease in revenue shall receive two (2) points.

(III) Applicants with a thirty percent (30%) to thirty-nine percent (39%) decrease in revenue shall receive three (3) points.

(IV) Applicants with a forty percent (40%) to forty-nine percent (49%) decrease in revenue shall receive four (4) points.

(V) Applicants with a fifty percent (50%) or more decrease in revenue shall receive five (5) points.

(B) For water and sewer applicants applying for funding to supplement funding for projects planned or ongoing projects that have already incurred higher project costs or project bidding environments due to the public health emergency;

(I) Applicants with a twenty percent (20%) to thirty-five percent (35%) increase in project costs shall receive one (1) point.

(II) Applicants with a thirty-six percent (36%) to fifty percent (50%) increase in project costs shall receive two (2) points.

(III) Applicants with a fifty-one percent (51%) to sixty-five percent (65%) increase in project costs shall receive three (3) points.

(IV) Applicants with a sixty-six percent (66%) or higher increase in project costs shall receive four (4) points.

(vii) The average median household income (AMHI) in the area to be served by the proposed project compared to the state's AMHI:

(A) Applicants whose AMHI is less than sixty percent (60%) shall receive five (5) points.

(B) Applicants whose AMHI is sixty percent (60%) or greater, but less than seventy percent (70%) shall receive four (4) points.

(C) Applicants whose AMHI is seventy percent (70%) or greater, but less than eighty percent (80%) shall receive three (3) points.

(D) Applicants whose AMHI is eighty percent (80%) or greater, but less than ninety percent (90%) shall receive two (2) points.

(E) Applicants whose AMHI is ninety percent (90%) or greater, but less than one hundred ten percent (110%) shall receive one (1) point.

(viii) Whether the proposed project eliminates noncompliance with EPA or DEQ regulations pertaining to the applicant's current systems;

(A) If the proposed project shall eliminate existing noncompliance, applicant shall receive three (3) points.

(B) If the proposed project will prevent noncompliance that is not currently existing, but is imminent or may be reasonably anticipated, the applicant shall receive two (2) points.

(C) If the proposed project will not eliminate violations, applicant shall receive zero (0) points.

(ix) Whether the proposed project achieves the regionalization of two (2) or more systems;

(A) If the proposed project does achieve regionalization, applicant shall receive one (1) point.

(B) If the proposed project does not achieve regionalization, applicant shall receive zero (0) points.

(x) Whether the applicant has a plan for completing the project if, for any reason, the awarded funds are not expended by the deadline for expending ARPA funds.

(A) Applicants who have a plan shall receive one (1) point.

(B) Applicants who do not have a plan shall receive zero (0) points.

Section 10. Board Consideration.

(a) The Board shall consider each application, allow for comments from the applicant and from the Director, and establish the maximum amount of the grant, if any. The Board may limit comment time at the discretion of the Chair.

Section 11. Fund Disbursement and Administration.

(a) Fund Disbursement. Funds shall be disbursed to the applicant only as needed to discharge obligations incurred in accordance with the Board approved project costs. Requests for disbursements shall be made on a form supplied by the Office and supported by adequate proof that such obligations have been incurred for project purposes and are due and owing. From the time the project commences to the completion of the project, requests shall be submitted for reimbursement no more frequently than once a month and not less than quarterly.

(b) Fund Reversion. Any grant funds that have not been obligated by October 1, 2024 shall be deemed rejected by the recipient and shall revert to the Office. All requests for reimbursement for eligible expenses must be received by the Office no later than October 1, 2026. Any unused portions of the grants awarded pursuant to this Chapter shall revert to the US Department of the Treasury on December 31, 2026 whether or not the project is completed and all eligible expenses have been requested for reimbursement.

Section 12. Reporting Requirements.

(a) Applicants shall comply with all federal and state reporting requirements.

Section 13. Audits and Inspections.

(a) The Board may, at its expense, conduct an audit of the records of the applicant.

(b) The applicant shall allow the Federal and/or state government to conduct an audit of the records related to the expenditure of moneys from the Fund.

(c) The applicant shall comply with the Single Audit Act. If seven hundred fifty thousand dollars ($750,000.00) or more is disbursed in any given year, an audit must be completed in accordance with 31 C.F.R. Part 200, Subpart F.