Distributed Infrastructure Toolkit

DI Toolkit

Module 3

Overcoming Barriers to Paying for Distributed Infrastructure

State and Local Public Finance Statutes

There is a widespread perception that utilities are legally prohibited from debt financing installations on private properties (or otherwise outside of the public right of way).

While legal limitations exist in some cases, in many, if not most, the law is sufficiently flexible to allow public borrowing to invest in distributed water infrastructure because these investments serve important public water infrastructure purposes.

When determining whether a city or utility has legal authority to use public funds to pay for distributed infrastructure on private property, 3 primary statutory issues come into play:

  • State public finance statutes that govern municipal use of debt
  • State and local public finance rules governing how ratepayer dollars, or fee revenues, can be used
  • City/town charters governing the purposes for which municipalities may issue bonds

SRFs vs Municipal Bonds

In some instances, state or local laws may not allow municipalities to use bond proceeds in connection with private properties because the utility’s authority to issue bonds is specifically limited to projects owned by the utility (e.g., treatment plants, pipes, tunnels). Even in those instances, however, the utility will still be able to obtain SRF loans for its distributed water programs. This is because SRF funds are specifically available for efficiency, lead line replacements, GSI and other distributed infrastructure strategies. In other words, the SRF authority to finance distributed infrastructure can be broader than state and local bonding authority.

Explore WaterNow resources related to navigating legal questions about financing distributed infrastructure.

Most of rules governing utility financing were enacted as anti-corruption protections and to ensure transparency in the use of public funds and should not operate as a barrier to public investment in infrastructure for primarily public benefit purposes. Scroll down for deeper dives on:

  • State Public Financing Rules
  • Municipal/Local Financing Rules
  • State & Local Rules on Using Rate Revenue

Unpacking State Public Financing Rules

State law authorizes cities and utilities to issue bonds to pay for water systems. The scope of what can be financed with this authority can vary in ways that permit, or restrict, the use of borrowing to pay for distributed water systems on private property.

In California, utilities have broad authority to finance projects that “benefit” the water system, including to conserve water and/or manage stormwater. This empowers cities and utilities to bond finance distributed infrastructure such as indoor and outdoor water efficiency improvements and green infrastructure that captures stormwater.

In Arkansas, utilities have more limited authority to finance only construction of improvements, extensions, or “betterments” to the centralized system, but does not prohibit bond financing for distributed infrastructure. Cities/utilities can use bonds proceeds for private property distributed systems so long as they can demonstrate that those investments are part of the water system, e.g., the distributed infrastructure provides water supplies or supplements the sewer system.

Use the State Public Finance Laws database to explore your state’s public finance statutes, and find a summary of how these state laws may allow debt financing to upscale distributed infrastructure programs.

Search Finance Database

 

Unpacking Municipal Financing Rules

Public utilities are also subject to various local rules when looking to bond finance distributed infrastructure. These rules are usually set out in:

  • Local ordinances and municipal codes 
  • City or county charters 
  • City or county capital asset policies 
  • City or county debt policies

Once the relevant local bond rules are identified, there are 2 questions to answer:  

  • How do the local rules define “water system”?  
  • Do the local rules require utility ownership as a condition of bond financing? 

If the local rules define “water system” as: “improvements used as a part of the collection, treatment, or distribution of water and all extensions, improvements, additions, and alterations to those improvements,” then the utility should be well-positioned to issue bonds for distributed infrastructure.  

Some local finance rules are very broad. For example, the Metropolitan Water District of Southern California is authorized to issue bonds to pay for projects its board determines are “necessary or convenient to carry out the objects or purposes of the district.”  

In contrast, some local rules are narrower. If the rules define “water system” with language such as: “water facilities now owned or hereafter acquired” by the utility, some type of ownership interest will likely be needed to bond finance the distributed infrastructure project. These narrower rules do not, however, prohibit using bond proceeds to pay for distributed infrastructure.  

Explore WaterNow resources related to navigating municipal rules about financing distributed infrastructure.

Factsheet

Location pin

Midwest

MMSD: Bond Counsel Opinion

MMSD needed to control an asset to bond finance its GSI incentives, secured with conservation easements.

Green Infrastructure

Read more about MMSD: Bond Counsel Opinion

Unpacking State and Local Rules on Using Utility Rates 

Some states and most municipalities have rules on how water rate revenues can be used. Most of these rules are flexible enough to allow rates to be used to pay for distributed infrastructure. Indeed, rates are a key way many utilities already pay for distributed strategies. 

In some instances, rate rules can be construed as a barrier to borrowing to pay for private property distributed infrastructure. For example, the City of Chicago’s municipal code provides that water rates can be used for “water system” operations, and define “water system” is as “all property, real, personal or otherwise, owned or to be owned by the City or under the control of the City and used for water supply, distribution or collection purposes….” Chicago officials have taken a cautious approach to this “ownership or control” language and determined water rate revenues cannot be used to pay for distributed infrastructure such as lead service lines on private property.  

Note that rules governing the use of rate revenue are distinct from the rules that govern when utilities can issue bonds. They are, however, interrelated. Rules governing the use of rates and the issuance of bonds determine whether cities and utilities can pay for distributed infrastructure investments.  

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