Part X.
Texas Water Development Board
Chapter 371.
Drinking Water State Revolving Fund
The Texas Water Development Board (board) proposes new §§371.1-371.4,
371.11-371.21, 371.31-371.39, 371.51-371.52, 371.61-371.62, 371.71-371.72,
371.81-371.89, and 371.101-371.102, comprising Chapter 371, concerning the
creation, capitalization by federal grant and state match, purposes and administration
of the drinking water state revolving fund (dwsrf). The fund will provide
low interest loans to eligible applicants of the state pursuant to 42 United
States Code 300f et seq. and the Texas Water Code, §§15.601-l5.609
and 17.0821.
Sections 371.1-371.4, concerning introductory provisions, describe the
scope of the new chapter, give definitions to the terms used in the chapter,
policy declarations of the board regarding the operation of the fund and
the term of applicability of the rules.
Program requirements for the dwsrf are detailed in §§371.11-371.19.
Section 371.11 provides that public hearings be held to consider adoption
of the priority list and intended use plan. Section 371.12 describes the
type of assistance for which the dwsrf may be used. Section 371.13 provides
for the projects that are eligible for dwsrf assistance. Section 371.14 lists
eligible project costs. In §371.15, provision is made for capitalization
grant applications to be submitted annually to the Environmental Protection
Agency (EPA). Requirements for projects which received assistance from capitalization
grants are listed in §371.16. The process for rating projects to be
included in the intended use plan is described in §371.17. Section 371.18
provides for the intended use plan to identify projects proposed to receive
assistance and information about each project. Section 371.19 describes the
criteria and methods for distributing dwsrf funds among projects, including
ranking and categorizing of projects and requirements to timely submit applications
and enter into commitments for assistance.
In §371.31, prospective applicants are instructed to schedule preapplication
conferences with the board to receive information on application procedures.
General application submittal requirements are given in §371.32. Fiscal
data required for submittal are addressed in §371.33. Required legal
submittals are given in §371.34. Section 371.35 provides for environmental
review and determination by the board. It establishes three possible levels
of environmental determinations: categorical exclusion, finding of no significant
impact, and record of decision. It also establishes the criteria and procedures
for making each of the determinations, criteria and procedures for modifying
the determinations, and describes the extent and nature of the information
needed to support the environmental decisions. The section also provides
for authority to construct a portion of a project in advance of receiving
an appropriate environmental determination when conditions warrant. Public
participation requirements for making each of the environmental determinations
are specified in this section. The contents of an engineering feasibility
report are given in §371.36. The section describes the process for approval
of the report and the need for additional information if the project changes.
The requirement for a water conservation plan is described in §371.37,
and two different procedures for submittal and approval are given. Section
371.38 includes an explanation of the requirements and procedures for an
application using the Pre-Design Funding Option. Section 371.39 requires
the executive administrator to review applications, states the review criteria,
and specifies the conditions for presenting an application to the board.
Board actions on applications are given in §371.51, including placement
on the board's agenda, public notice, conduct of the board meeting, and the
possible actions and criteria for actions by the board. Section 371.52 sets
interest rates for loans from the DWSRF.
Engineering design requirements for projects are given in §§371.61-371.62.
Section 371.61 lists required elements of the contract documents. Section
371.62 identifies requirements to be met for approval by the executive administrator.
Section 371.71 includes instruments needed for loan closing, the requirement
for a certified transcript following the final release of funds, instructions
for refinancing construction loans, conditions for closing a portion of a
loan for phased construction, and other closing requirements. Section 371.72
explains the release of funds for planning, design and permits, pre-design
funding, release of funds for building purposes, release of funds for projects
constructed through one or more construction contracts, and escrow of funds.
The building phase requirements are discussed in §§371.81-371.89.
Section 371.81 requires loan recipients to comply with appropriate laws and
procedure when advertising for bids and awarding construction contracts.
Provision for inspection of construction by the project engineer and executive
administrator is made in §375.82. Section 371.83 requires that alteration
during construction must be approved by the board. Section 371.84 makes provision
for contractor bankruptcy. Section 371.85 requires submission of as-built
drawings. Sections 371.86-371.87 provide for the withholding and release
of retainage. Section 371.88 provides for a certificate of approval to be
issued by the executive administration upon project completion. Section 371.89
provides for progress payments for authorized project costs. Elements of
accountability which remain after project completion are discussed in §371.101.
Final accounting is required upon completion of the project in §371.102.
Pamela Ansboury, the Director of Finance, has determined that for the first
five-year period the sections are in effect the estimated additional cost
for state government as a result of enforcing or administering the sections
will be $65,963 for 1997, $671,345 for 1998, and $781,550 for each of 1999,
2000, and 2001. There will be an equivalent estimated reduction in cost for
the first five year period the sections are in effect as the additional cost
will be absorbed from two sources: (1) the 4% administrative component of
the annual federal capitalization grant; and (2) a projected administrative
cost recovery fee for loans. The impact on local governments will be a reduction
in borrowing costs to finance capital projects, although the amount of savings
cannot be quantified at this time.
Ms. Ansboury also has determined that for each year of the first five years
that the sections are in effect the public benefit anticipated as a result
of enforcing the sections will be to provide low interest loans for drinking
water-related projects to eligible applicants of the state pursuant to 42
United States Code 300f et seq. and the Texas Water Code, Chapter 15, Subchapter
J, §§15.601-15.609 and Chapter 17, Subchapter C, §17.0821.
There will be no effect on small businesses. There are no anticipated economic
costs to persons who are required to comply with the new sections as proposed.
Comments on the proposed sections will be accepted for 30 days following
publication and may be submitted to Gail L. Allan, Assistant General Counsel,
Texas Water Development Board, P.O. Box 13231, Austin, Texas, 78711-3231.
Introductory Provisions
31 TAC §§371.1-371.4
The new sections are proposed under the authority of the Texas
Water Code, §6.101 and §15.605 which provide the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State and specifically
the SRF Program.
The statutory provisions affected by the new sections are Texas Water Code,
Chapter 15, Subchapter J, §§15.601-15.609 and Chapter 17, Subchapter
C, §17.0821.
§371.1. Scope of Rules.
These sections, adopted pursuant to the Texas Water Code, §6.101,
shall govern applications for financial assistance from the Drinking Water
State Revolving Fund (DWSRF) that are needed to satisfy the federal requirements
as a prerequisite to the State's receipt of capitalization grant funds.
§371.2. Definitions of Terms.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise. Words
defined in the Texas Water Code, Chapter 15 and not defined here shall have
the meanings provided by Chapter 15.
Act
- The Safe Drinking Water Act Amendments of 1996, 42
USC 300f et. seq.
Administrative costs
- All reasonable and necessary costs
of administering any aspect of the DWSRF program, including the cost of servicing
debt obligations of recipients of DWSRF financial assistance.
Administrator
- The chief officer of the Environmental Protection
Agency appointed by the President of the United States.
Applicant
- An eligible applicant which files an application
with the board for financial assistance or associated actions.
Application for assistance
- All the information required
for submittal in: §371.32 of this title (relating to Required General
Information), §371.33 of this title (relating to Required Fiscal Data),
§371.34 of this title (relating to Required Legal Data), §371.35
of this title (relating to Required Environmental Review and Determinations),
§371.36 of this title (relating to Required DWSRF Engineering Feasibility
Report), and §371.37 (relating to Required Water Conservation Plan),
or §371.38 of this title (relating to Pre-Design Funding Option) for
those applicants choosing the pre-design funding option.
Authorized representative
- The signatory agent of the applicant
authorized and directed by the applicant's governing body to make application
for assistance and to sign documents required to undertake and complete the
project, on behalf of the applicant.
Board
- The Texas Water Development Board.
Bonds
- All bonds, notes, certificates, book-entry obligations,
and other obligations issued or authorized to be issued by any political
subdivision.
Building
- The erection, acquisition, alteration, remodeling,
improvement or extension of a water project.
Capitalization grant
- Federal grant assistance awarded
to the state for capitalization of the Drinking Water State Revolving Fund.
Closing
- The time at which the requirements for loan closing
have been completed pursuant to §371.71 of this title (relating to Loan
Closing) and an exchange of debt for funds to either the applicant, an escrow
agent bank, or a trust agent has occurred.
Commission
- The Texas Natural Resource Conservation Commission.
Commitment
- An action of the board evidenced by a resolution
approving a request for financial assistance from the fund.
Construction
- Any one or more of the following activities:
(A)
preliminary planning to determine the feasibility
of a water project;
(B)
engineering, architectural, environmental, legal,
title, fiscal, and economic or other pertinent studies;
(C)
surveys, designs, plans, working drawings, specifications,
procedures;
(D)
building or the inspection or supervision thereof;
and
(E)
activities authorized under §371.14 of this
title (relating to Other Authorized Activities).
Construction fund
- A dedicated source of funds, created
and maintained by the applicant at an official depository, or a designated
depository approved by the executive administrator, used solely for the purposes
of construction of a project as approved by the board.
Contaminant
- any physical, chemical, biological, or radiological
substance or matter in water.
Contract documents
- The engineering description of the
project including engineering drawings, maps, technical specifications, design
reports, instructions and other contract conditions and forms that are in
sufficient detail to allow contractors to bid on the work.
Cost-effectiveness determination
- A determination based
on engineering, environmental, and financial analyses that a proposed project
or component part will result in the minimum total monetary (resources) costs
over time, but without overriding adverse social, economic and environmental
considerations.
Debt
- All bonds issued or to be issued by any political
subdivision.
Delivery
- The time at which payment is made by the board
to the loan recipient against the purchase price of the loan recipient's
debt and at which the board takes possession of the instruments evidencing
the loan recipient's debt. Delivery may occur simultaneously with a release
of funds, or without release of funds pursuant to an escrow agreement.
DWSRF
- Drinking Water State Revolving Fund, a program of
financial assistance administered by the board for water projects pursuant
to the Act and Texas Water Code, Chapter 15.
Eligible applicant
- A political subdivision as defined
pursuant to Texas Water Code, Chapter 15.
Environmental determination
- A finding by the executive
administrator regarding the potential environmental impacts of a proposed
project and describing what mitigative measures, if any, the applicant will
be required to implement as a condition of financial assistance.
Environmental information document
- A written analysis
prepared by the applicant describing the potential environmental impacts
of a proposed project, sufficient in scope to enable the executive administrator
to prepare an environmental assessment to allow an environmental determination
to be made by the executive administrator.
Environmental review
- The process whereby an evaluation
is undertaken by the board, consistent with the National Environmental Policy
Act and other federal, state, and local laws and requirements, to determine
whether a proposed project may have significant impacts on the environment
and therefore require the preparation of an environmental impact statement,
as detailed in §371.35 of this title(relating to Required Environmental
Review and Determinations).
EPA
- The Environmental Protection Agency.
Escrow
- The transfer of funds to a custodian of the funds
which will act as the escrow agent or trust agent.
Escrow agent
- The third party appointed to hold the funds
which are not eligible for release to the loan recipient.
Escrow agent bank
- The financial institution which has
been appointed to hold the funds which are not eligible for release to the
loan recipient.
Executive administrator
- The executive administrator of
the board or a designated representative.
Financial assistance
- Loans by the board from the DWSRF
to eligible applicants.
Fund
- The DWSRF created pursuant to the Texas Water Code,
Subchapter J, Chapter 15.
Funding year
- The particular federal fiscal year (October
1 - September 30) for which funds are made available to the DWSRF.
Intended use plan
- A plan identifying the intended uses
of the amount of funds available through the DWSRF for financial assistance
and administrative costs for each fiscal year as described in the Act, §1452.
Lending rate
- Interest rate assessed to loan applicants
for loans through the DWSRF.
Market interest rates
- Interest rates comparable to those
attained for municipal securities in an open market offering.
Municipality
- A city, town, or other public body created
by or pursuant to State law, or an Indian Tribe.
Population
- That number of people who reside within the
territorial boundaries of or receive wholesale or retail water service from
the applicant as determined by:
(A)
information in the DWSRF engineering feasibility
report or latest official census for an incorporated city; or
(B)
the population for which the project is designed,
where the applicant is not an incorporated city or town.
Primary drinking water regulation
- a regulation promulgated
by EPA which:
(A)
applies to public water systems;
(B)
specifies contaminants which, in the judgment of
the Administrator, may have any adverse effect on the health of persons;
(C)
specifies for each such contaminant either:
(i)
a maximum contaminant level,
if, in the judgment of the Administrator, it is economically and technologically
feasible to ascertain the level of such contaminant in water in public water
systems, or
(ii)
if, in the judgment of
the Administrator, it is not economically or technologically feasible to
so ascertain the level of such contaminant, each treatment technique known
to the Administrator which leads to a reduction in the level of such contaminant
sufficient to satisfy the requirements of the Act, §300f; and
(D)
contains criteria and procedures to assure a
supply of drinking water which dependably complies with such maximum contaminant
levels; including quality control and testing procedures to insure compliance
with such levels and to insure proper operation and maintenance of the system,
and requirements as to:
(i)
the minimum quality of
water which may be taken into the system; and
(ii)
siting for new facilities
for public water systems.
Priority list
- A list of projects, ranked according to
priority order, for which DWSRF assistance may be requested.
Project
- The scope of work describing a construction endeavor
for which financial assistance is sought.
Project engineer
- The engineer or engineering firm retained
by the applicant to provide professional engineering services during the
planning, design, and/or construction of a project.
Public water system
-
(A)
In General. The system for the provision to
the public of water for human consumption through pipes or other constructed
conveyances, if such system has at least fifteen service connections or regularly
serves at least twenty-five individuals. Such term includes:
(i)
any collection, treatment,
storage, and distribution facilities under control of the operator of such
system and used primarily in connection with such system; and
(ii)
any collection or pretreatment
storage facilities not under such control which are used primarily in connection
with such system.
(B)
Connections. A connection to a system that delivers
water by a constructed conveyance other than a pipe shall not be considered
a connection, if:
(i)
the water is used exclusively
for purposes other than residential uses (consisting of drinking, bathing,
and cooking, or other similar uses);
(ii)
the Administrator or the
Commission determines that alternative water to achieve the equivalent level
of public health protection provided by the applicable national primary drinking
water regulation is provided for residential or similar uses for drinking
and cooking; or
(iii)
the Administrator or
the Commission determines that the water provided for residential or similar
uses for drinking, cooking, and bathing is centrally treated or treated at
the point of entry by the provider, a pass-through entity, or the user to
achieve the equivalent level of protection provided by the applicable national
primary drinking water regulations.
(C)
Irrigation Districts. An irrigation district
in existence prior to May 18, 1994, that provides primarily agricultural
service through a piped water system with only incidental residential or
similar use shall not be considered to be a public water system if the system
or the residential or similar users of the system comply with subparagraph
(B)(ii) and (iii) of this definition.
(D)
Transition Period. A water supplier that would be
a public water system only as a result of modifications made shall not be
considered a public water system until two years after August 6, 1996. If
a water supplier does not serve 15 service connections or 25 people at any
time after the conclusion of the 2-year period, the water supplier shall
not be considered a public water system.
Release
- The time at which funds are made available to
the loan recipient.
Secondary drinking water regulation
- A regulation promulgated
by EPA which applies to public water systems and which specifies the maximum
contaminant levels which, in the judgment of the Administrator, are requisite
to protect the public welfare. Such regulations may vary according to geographic
and other circumstances and may apply to any contaminant in drinking water:
(A)
which may adversely affect the odor or appearance
of such water and consequently may cause a substantial number of the persons
served by the public water system providing such water to discontinue its
use; or
(B)
which may otherwise adversely affect the public welfare.
State
- State of Texas.
State allotment
- The sum allocated to the State of Texas
for a federal fiscal year, from funds appropriated by congress pursuant to
the Act.
Trust agent
- The party appointed by the applicant and approved
by the executive administrator to hold the funds which are not eligible for
release to the loan recipient.
Water conservation plan
- A report outlining the methods
and means by which water conservation may be achieved in an area, as further
defined in §371.37 of this title (relating to Required Water Conservation
Plan).
Water conservation program
- A comprehensive description
and schedule of the methods and means to implement and enforce a water conservation
plan.
§371.3. Policy Declarations.
The DWSRF is intended to be a perpetual fund to provide financial assistance
to political subdivisions to help the political subdivisions meet Federal
drinking water requirements.
§371.4. Date of Applicability of Rules.
This chapter shall apply to all applications for assistance from funds
appropriated for federal fiscal years 1997 through 2003.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 3, 1996.
TRD-9700130
Craig D. Pedersen
Executive Administrator
Texas Water Development Board
Earliest possible date of adoption: February 14, 1997
For further information, please call: (512) 463-7981
31 TAC §§371.11-371.21
The new sections are proposed under the authority of the Texas
Water Code, §6.101 and §15.605, which provides the Texas Water
Development Board with the authority to adopt rules necessary to carry out
the powers and duties in the Water Code and other laws of the State and specifically
the SRF Program.
§371.11. Public Hearings.
In accordance with the Act, the board shall hold public hearings to
consider adoption and approval of the priority list and amendments thereto
and shall either hold public hearings or allow a period for public review
and comment before adoption and approval of the annual intended use plan.
§371.12. Types of Financial Assistance.
The fund may be used for the following purposes:
(1)
to make loans on the condition that:
(A)
the interest rate for each loan is less than or equal
to the market interest rate;
(B)
principal and interest payments on each loan will commence
not later than one year after completion of the project for which the loan
was made, and each loan will be fully amortized not later than 20 years after
the completion of the project;
(C)
the recipient of each loan will establish a dedicated
source of revenue for the repayment of the loan; and
(D)
the fund will be credited with all payments of principal
and interest on each loan; and
(2)
to buy or refinance the debt obligation of a
municipality or an intermunicipal or interstate agency within the State at
an interest rate that is less than or equal to the market interest rate in
any case in which a debt obligation is incurred after July 1, 1993;
(3)
to guarantee or purchase insurance for a bond (all
of the proceeds of which finance a project eligible for assistance under
this section) if the guarantee or purchase would improve credit market access
or reduce the interest rate applicable to the bond;
(4)
as a source of revenue or security for the payment
of principal and interest on revenue or general obligation bonds issued by
the board if the proceeds of the sale of the bonds will be deposited into
the fund; and
(5)
to earn interest on the amounts deposited into the
fund.
§371.13. Projects Eligible for Assistance.
(a)
Projects are eligible for assistance if they will facilitate
compliance with the primary drinking water regulations applicable to the
public water system or otherwise significantly further the health protection
objectives of the Act. Such projects include:
(1)
capital investments to upgrade or replace infrastructure
in order to continue providing the public with safe drinking water, including
projects to replace aging infrastructure;
(2)
projects to correct exceedances of the health standards
established by the Act;
(3)
projects to consolidate water supplies where the supplies
have an inadequate quantity of water, the water supply is contaminated or
the system is unable to maintain compliance with the national primary drinking
water regulations for financial or managerial reasons and the consolidation
will achieve compliance;
(4)
purchase of capacity in another system if the purchase
is part of a consolidation plan and is cost-effective considering buy-in
fees and user fees;
(5)
projects to restructure a system if the system is
not in compliance with the primary drinking regulations or the applicant
lacks the technical, managerial and financial capability to maintain the
system, if the restructuring will return and maintain the system in compliance
with the Act, §1452 (a)(3)(B).
(b)
Projects proposed for public water systems for which applicants
do not have the technical, managerial, and financial capacity to maintain
the system are not eligible for assistance unless the requirements of subsection
(a)(5) of this section are met.
§371.14. Other Authorized Activities.
(a)
In General. In addition to projects funded under §371.13
of this title (relating to Projects Eligible for Assistance) the board may
take each of the following actions.
(1)
Provide assistance to eligible applicants only in the form
of a loan, for one or more of the following.
(A)
Any public water system described in §371.2 of this
title (relating to Definition of Terms) to acquire land or a conservation
easement from a willing seller or grantor, if the purpose of the acquisition
is to protect the source water of the system from contamination and to ensure
compliance with national primary drinking water regulations.
(B)
Any community water system to implement local, voluntary
source water protection measures to protect source water in areas delineated
pursuant to the Act, §1453, in order to facilitate compliance with national
primary drinking water regulations applicable to the system under the Act,
§1412 or otherwise significantly further the health protection objectives
of this title. Funds authorized under this clause may be used to fund only
voluntary, incentive-based mechanisms.
(C)
Any community water system to provide funding in accordance
with the Act, §1454(a)(1)(B)(I).
(2)
Provide financial assistance to any public water
system as part of a capacity development strategy developed and implemented
in accordance with the Act, §1420(c).
(b)
Limitation. For each fiscal year, the total amount of assistance
provided and expenditures made by the board under this subsection may not
exceed 15% of the amount of the capitalization grant received by the board
for that year and may not exceed 10% of that amount for any one of the following
activities.
(1)
To acquire land or conservation easements pursuant to subsection
(a)(1)(A) of this section.
(2)
To provide funding to implement voluntary, incentive-based
source water quality protection measures pursuant to subsection (a)(1)(B)
of this section.
(3)
To provide assistance through a capacity development
strategy pursuant to subsection (a)(2) of this section.
§371.15.Activities Fund.
The board may provide financial assistance under this chapter for one
or more elements of construction as defined in §371.2 of this title
(relating to Definition of Terms).
§371.16. Eligible Land Costs.
Eligible land costs include the purchase of land if the land is necessary
to locate the project and the sale is from a willing seller. Acquisition
of real property or real property interests are not eligible costs unless
the acquisition is integral to an authorized project.
§371.17. Capitalization Grant Application.
After the board approves the intended use plan and priority list, the
executive administrator shall submit these items with an application for
the capitalization grant for that fiscal year to EPA.
§371.18. Capitalization Grant Requirements for Applicants.
All projects which receive assistance from the fund under this chapter
shall satisfy the following federal requirements as they apply:
(1)
National Environmental Policy Act of 1969, PL 91-190;
(2)
Archeological and Historic Preservation Act of 1974,
PL 93-291;
(3)
Clean Air Act, 42 U.S.C. 7506(c);
(4)
Coastal Barrier Resources Act, 16 U.S.C. 3501 et seq.;
(5)
Coastal Zone Management Act of 1972, PL 92-583, as
amended;
(6)
Endangered Species Act, 16 U.S.C. 1531, et seq.;
(7)
Executive Order 11593, Protection and Enhancement
of the Cultural Environment;
(8)
Executive Order 11988, Floodplain Management;
(9)
Executive Order 11990, Protection of Wetlands;
(10)
Farmland Protection Policy Act, 7 U.S.C. 4201 et
seq;
(11)
Fish and Wildlife Coordination Act, PL 85-624, as
amended;
(12)
National Historic Preservation Act of 1966, PL 89-665,
as amended;
(13)
Safe Drinking Water Act, §1424(e), PL 92-523,
as amended;
(14)
Wild and Scenic Rivers Act, PL 90-542, as amended;
(15)
Demonstration Cities and Metropolitan Development
Act of 1966, PL 89-754, as amended;
(16)
Section 306 of the Clean Air Act and §508 of
the Clean Water Act, including Executive Order 11738, Administration of the
Clean Air Act and the Federal Water Pollution Control Act with Respect to
Federal Contracts, Grants, or Loans;
(17)
Age Discrimination Act, PL 94-135;
(18)
Civil Rights Act of 1964, PL 88-352;
(19)
Section 13 of PL 92-500; Prohibition against sex
discrimination under the Federal Water Pollution Control Act;
(20)
Executive Order 11246, Equal Employment Opportunity;
(21)
Executive Orders 11625 and 12138, Women's and Minority
Business Enterprise;
(22)
Rehabilitation Act of 1973, PL 93-112 (including
Executive Orders 11914 and 11250); and
(23)
Uniform Relocation and Real Property Acquisition
Policies Act of 1970, PL 91-646.
§371.19. Rating Process.
(a)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
Acute chemical violation - A violation of the maximum contaminant
level established for nitrate or nitrite as defined in 30 TAC Chapter 290
(relating to Water Hygiene).
(2)
Acute coliform bacteria violation - A violation of
the maximum contaminant level for coliform which is defined as an acute risk
to health, as specified in 30 TAC Chapter 290 (relating to Water Hygiene).
(3)
Carcinogen violation - A violation of the maximum
contaminant level established for any carcinogenic contaminant listed in
the following table:
31 TAC 371.19(a)(3).
(4)
Chronic chemical violation - A violation of the maximum
contaminant level established for any of the contaminants listed in the following
table:
Figure 2: 31 TAC 371.19(a)(4)
(5)
Chronic coliform bacteria violation - A violation
of the maximum contaminant level for total coliform as specified in 30 TAC
Chapter 290 (relating to Water Hygiene).
(6)
Compliance period - A three-year period for assessing
compliance as defined in 30 TAC §290.102 (relating to Definitions).
(7)
Maximum contaminant level - The maximum allowable
level for any bacteriological chemical or radiological contaminant specified
in 30 TAC Chapter 290 (relating to Water Hygiene).
(8)
Ninetieth percentile copper/lead level - The level
of lead or copper in a water system determined by the method specified in
30 TAC Chapter 290 (relating to Water Hygiene).
(9)
Secondary chemical constituent exceedance - An exceedance
of the constituent level established for any secondary chemical constituent
listed in the following table:
Figure 3: 31 TAC 371.19(a)(9)
(10)
Treatment technique violation - A violation of any
surface water treatment technique as specified in 30 TAC Chapter 290 (relating
to Water Hygiene). For the purposes of this rating, these will include all
5% exceedances of the 0.5 NTU standard.
(b)
Health and Compliance Factors. Health and compliance factors
for rating purposes will be calculated as follows.
(1)
The microbiological factor will be equal to the sum of:
the total number of coliform bacteria violations occurring within the preceding
12 months; the total number of acute coliform bacteria violations occurring
within the preceding 12 months; and the total number of treatment technique
violations occurring within the preceding 12 months, minus one.
(2)
The filtration factor of 12 points will be awarded
to any system with one or more sources of water identified as surface water,
or groundwater under the direct influence of surface water for which no filtration
is provided as identified by records maintained by the TNRCC.
(3)
The chronic chemical factor for each contaminant listed
in the following table will be equal to the average value of chronic chemical
violations occurring within the most recent compliance period for which data
exist, divided by the maximum contaminant level listed.
Figure 4: 31 TAC 371.19(b)(3)
(4)
The acute chemical factor will be equal to three times
the quotient of the average value of nitrate or nitrite violations occurring
within the most recent compliance period for which data exist, divided by
the maximum contaminant level for nitrate or nitrite established by 30 TAC
Chapter 290 (relating to Water Hygiene).
(5)
The carcinogen factor for each contaminant listed
in the following table will be equal to twice the quotient of the average
value of carcinogen violations occurring within the most recent compliance
period for which data exist, divided by the maximum contaminant level listed.
Figure 5: 31 TAC 371.19(b)(5)
(6)
The lead/copper factor will be equal to the product
of 2 times the greater of: the 90th percentile lead level divided by 0.015,
or, the 90th percentile copper level divided by 1.3, as established in 30
TAC Chapter 290 (relating to Water Hygiene).
(7)
The population factor shall be based on the current
population served by the system in accordance with the following table:
Population-Factor
Zero to 100-0
101 to 1,000-1
1,001 to 10,000-2
10,001 to 100,000-3
Greater than 100,000-4
Current population will be based on population data maintained by the Commission.
The population factor will be used only when the sum of the factors listed
in this paragraph and paragraphs (1)-(6) of this subsection is greater than
zero. In that event, the population factor will be added to the sum of the
factors listed in this paragraph and paragraphs (1)-(6) of this subsection.
(8)
The secondary chemical factor for each constituent
so designated in the following table will be equal to one half the quotient
of the average of the secondary chemical constituent exceedances occurring
during the most recent compliance period for which data exists, divided by
the secondary chemical constituent level listed in this section. A maximum
of 2 points may be assigned to this factor.
Figure 6: 31 TAC 371.19(b)(8)
(9)
The total health and compliance factor for each applicant
shall be the sum of all individual factors calculated according to this paragraph
and paragraphs (1)-(8) of this subsection.
(10)
The health and compliance factors for chronic coliform,
acute coliform and treatment technique will be calculated based on data maintained
by the commission from the most recent consecutive 12 months for which data
are maintained by the commission, resulting from monitoring conducted by
the commission or from public water system monitoring required by 30 TAC
Chapter 290 (relating to Water Hygiene).
(11)
The health and compliance factors for chronic chemical,
acute chemical, secondary chemical and carcinogen will be calculated based
on data maintained by the commission from the current compliance period,
resulting from monitoring conducted by the commission or from public water
system monitoring required by 30 TAC Chapter 290 (relating to Water Hygiene).
(12)
The health and compliance factor for lead/copper
will be calculated based on data maintained by the commission from the most
recent complete compliance period, as defined in 30 TAC Chapter 290 (relating
to Water Hygiene), resulting from monitoring by the commission or from public
water system monitoring required by 30 TAC Chapter 290 (relating to Water
Hygiene).
(c)
Affordability Factor. A project having a service area in
which the per capita income averaged 25 percent or more below the state average
based upon the most recent census data available shall have an affordability
rating factor of 1.
(d)
Combined Rating Factor. The combined rating factor for
a project shall be the sum of the affordability factor and the total health
and compliance factor. Projects which did not receive either a health and
compliance factor or an affordability factor shall have a combined rating
factor of zero.
(e)
Consolidation. In the event a project proposed for funding
is to further consolidation of two or more water systems, the combined rating
factor will be the sum of the combined rating factors for each of the systems
to be consolidated if the resulting consolidated water system will be wholly
responsible for the operation and maintenance of the entire system; or will
be one half the sum of the combined rating factors of each of the systems
to be consolidated if the consolidated system will be responsible only for
supplying wholesale water to the individual systems and not be responsible
for the operation and maintenance of the individual systems.
(f)
Physical Deficiency Rating Criteria. All projects which
receive a combined rating factor of zero will be evaluated for the existence
of physical deficiencies based on information maintained by the commission.
If the existence of physical deficiencies is confirmed the projects will
receive physical deficiency rating scores based on the following criteria.
(1)
If the system has experienced documented instances of water
distribution outages or water distribution pressures of less than 20 pounds
per square inch the project will receive a rating score of 3.
(2)
If the system is not providing disinfection the project
will receive a rating score of 3.
(3)
If the documented water production capability is less
than 85% of the minimum required by the commission the project will receive
a rating score of 1.
(4)
If the documented treated water storage capacity is
less than 85% of the minimum required by the commission the project will
receive a rating score of 1.
(5)
If the system has experienced documented instances
of water distribution pressures between 20 and 35 pounds per square inch
the project will receive a rating score of 1.
(6)
If the water system is experiencing documented water
distribution system losses of greater than 25% the project will receive a
rating score of 1.
(7)
If the water system exceeds any secondary constituent
listed in the following table and is not designated as a secondary chemical
factor, the project shall receive a rating score of 1.
Figure 7: 31 TAC 371.19(f)(7)
(8)
The total physical deficiency rating score for a project
will be the sum of all of the individual deficiency rating scores for that
project.
(9)
The physical deficiency rating scores will be used
only for rating and ranking of projects with a combined rating factor equal
to zero. In no instance will a project which receives a physical deficiency
rating score be ranked higher than a project with a combined rating factor
greater than zero.
(g)
Combination of Funding Sources Factor. If an eligible applicant
for project funding, at the time of the yearly solicitation for intended
use plan project information, documents access to other funds equaling not
less than 10% of the total project cost that will be applied to the total
cost of the project, that project will have added to its combined rating
factor or in the event the combined rating factor is not greater than zero,
its physical deficiency rating criteria score, a combination of funding sources
factor of 1.
§371.20.Intended Use Plan.
(a)
Each fiscal year the board shall prepare an intended use
plan to meet the requirements of the Act and to assist the board in its financial
planning. The intended use plan will identify projects anticipated to receive
assistance from that year's available funds. The list of projects by priority
ranking included in the intended use plan may also serve as the comprehensive
project priority list required by the Act.
(b)
The process for listing projects in the intended use plan,
will be as follows.
(1)
On or before 1 April each year the executive administrator
will solicit project information from eligible applicants desiring to have
their projects placed on the subsequent year's intended use plan. The required
information will consist of:
(A)
a description of the proposed project;
(B)
county map showing location of service area;
(C)
estimated total project cost, certified by a registered
professional engineer;
(D)
estimated project schedule; and
(E)
population currently served by the applicant.
(2)
To be included in the draft intended use plan,
the applicant must submit the required information signed by a representative
of the applicant not later than June 1 of each year.
(3)
After a public hearing, the intended use plan and
project priority list will be presented to the board for consideration at
a regularly scheduled meeting.
(c)
Applications for funding from a particular fiscal year
may be considered for funding at any time between the date of establishment
of the funding line for that year's intended use plan as described in §371.21
of this title (relating to Criteria and Methods for Distribution of Funds)
and the date of establishment of the funding line for the subsequent year's
intended use plan.
(d)
Any funds from a particular intended use plan which have
not been committed by board action when the funding line for a subsequent
intended use plan is established will be included in the funds available
to the committed from the subsequent intended use plan.
§371.21. Criteria and Methods for Distribution of Funds.
(a)
After the executive administrator determines the amount
of funds available for a fiscal year and assigns all reserves, the remaining
funds will be applied to the list of projects designated to receive funding
in the intended use plan. The list will be divided into population classes
of systems that serve 10,000 persons or less, and systems that serve over
10,000 persons. Projects will be listed in priority ranking order with funds
required and totaled by class. Projects having either identical combined
rating factor scores, or identical physical deficiency rating scores, or
including rating scores of zero, will be listed in alphabetical order. Funds
required by all projects with combined rating factors greater than zero in
all classes shall then be totaled. A percentage of the total funds required
by each class shall be computed based upon the ratio of funds required by
all classes. The portion of the available funds will be assigned to the classes
based on this computed percentage. However, to the extent eligible applicants
are available, a minimum of 15% of the funds will be made available to small
communities (systems serving 10,000 or less).
(b)
After population class percentages have been assigned and
available funds distributed among the classes, a line will be drawn within
each class according to 2 times the available funds to each class. Project
costs will be based on cost estimates, acceptable to the executive administrator,
contained in the intended use plan solicitation described in §371.20
of this title (relating to Intended Use Plan) used to establish the project
list. The executive administrator may adjust the location of the funding
line upward or downward to avoid placing the line within a group of applicants
having identical rating scores.
(c)
Projects above the line shall be eligible for assistance.
After the funding line is drawn, the executive administrator shall notify
in writing all potential applicants above the funding line with a combined
rating factor greater than zero of the availability of funds and will invite
the submittal of applications. If after 6 months, all available funds are
not committed, the Executive Administrator shall notify the remaining eligible
applicants over the funding line to submit applications in accordance with
this subsection and subsections (d)-(f) of this section.
(d)
Applications for assistance may be submitted at any time
after notification by the executive administrator of the availability of
funds and will be funded on a first come, first served basis. Funds shall
be committed to a project designated to receive assistance upon board approval
of the application.
(e)
If the amount of funds required to fund all applications
which are complete and ready for scheduling for board action exceeds the
amount of funds available for commitment, a fund shortage is considered to
exist.
(f)
Applications which are ready for scheduling for board action
at the time a fund shortage occurs will be presented for board action in
order of their priority ranking in accordance with §371.19 of this title
(relating to Rating Process). Funds will be made available to applicants
in priority order until all available funds have been utilized. If a tie
for commitment of funding exists among applicants with identical rating scores,
the applications will then be funded based on the date and time of receipt
of a complete application for assistance, as defined.
(g)
If funds are available after the executive administrator
is able to make a determination that all applicants in a population class
have had the opportunity to be funded, the remaining funds will be made available
to the other population class.
(h)
If funds are available after the executive administrator
is able to make a determination that all eligible applicants above the funding
line have had an opportunity to be funded, the executive administrator may
after written notice invite the submittal of applications from all eligible
applicants listed on the IUP, having either a combined rating factor score
greater than zero or a physical deficiency rating score greater than zero,
in accordance with subsections (c)-(f) of this section.
(i)
If funds are available after the executive administrator
is able to make a determination that all eligible applicants having a combined
rating factor score greater than zero or a physical deficiency rating score
greater than zero have had an opportunity to be funded, the Executive Administrator
may after written notice invite the submittal of applications from all eligible
applicants listed on the IUP in accordance with subsections (c)-(f) of this
section.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 3, 1996.
TRD-9700131
Craig D. Pedersen
Executive Administrator
Texas Water Development Board
Earliest possible date of adoption: February 14, 1997
For further information, please call: (512) 463-7981
31 TAC §§371.31-371.39
The new sections are proposed under the authority of the Texas
Water Code, 6.101 and 15.605, which provides the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State and specifically
the SRF Program.
§371.31. Preapplication Conferences.
An applicant requesting information on financial assistance will make
an appointment with the staff of the board for a preapplication conference.
At a minimum, the preapplication conference should be attended by a member
of the governing body of the applicant, the consulting engineer, and the
financial advisor. The primary purposes of the meeting are: to establish
basic eligibility of the project and applicant for financial assistance;
to acquaint the applicant with the general, legal, and fiscal requirements
of an application for funding; and to assist the applicant in completing
an application.
§371.32. Required General Information.
An application will be in the form and numbers prescribed by the executive
administrator. The executive administrator may request any additional information
needed to evaluate the application and may return any incomplete applications.
§371.33. Required Fiscal Data.
The applicant shall submit financial information, the form and content
of which shall be specified by the executive administrator.
§371.34. Required Legal Data.
(a)
Bond election results. If a bond election is required by
law to authorize the issuance of bonds to finance the project, such election
should be held prior to consideration of the application by the board. The
applicant shall provide the executive administrator with the election date
and election results as to each proposition submitted.
(b)
Resolution. The applicant shall submit a certified copy
of a resolution of its governing body requesting financial assistance from
the board, authorizing the submission of the application, and designating
the authorized representative for executing the application and appearance
before the board.
(c)
Utilities service. If the applicant provides or will provide
water supply and/or treatment service to another entity, or receives or will
receive water supply or sewage collection and/or treatment service from another
entity, the applicant shall submit the actual or proposed agreements, contracts,
or other legally binding instruments which establish this service relationship.
Before a loan is closed an executed copy of such agreement shall be required.
The executive administrator may waive this requirement in whole or in part
in the case of a project where the applicant is the supplier of water, sewage
collection, and/or treatment services to other municipal entities, provided
the applicant can demonstrate that its financial strength is adequate to
continue the project even if one of the proposed customer entities fails
to participate.
(d)
Other contracts. If financing of the project will require
contractual loan agreement or the sale of bonds to the board payable either
wholly or in part from revenues of contracts with others, the applicant shall
submit a copy of any actual or proposed contracts under which applicant's
gross income is expected to accrue. Before a loan is closed, an applicant
shall submit certified copies of such contracts to the executive administrator.
(e)
Affidavit. The applicant shall submit an affidavit executed
by the authorized representative stating that the facts contained in the
application are true and correct to the best knowledge and belief of the
representative.
(f)
Construction contract. The applicant shall submit a copy
of any existing construction contract.
(1)
All contracts shall have provisions assuring compliance
with the board's rules and all relevant statutes.
(2)
The applicant shall be represented by a registered
professional engineer who shall inspect the project at each phase of construction
to assure construction in substantial compliance with the contract documents
and in accordance with sound engineering principles and the terms and provisions
of the construction contracts.
(3)
The applicant shall submit such other provisions as
may be deemed necessary to provide to the board and the applicant adequate
control to ensure that materials furnished or work performed conform with
the provisions of the construction contracts.
(g)
Consultant contracts. The applicant shall submit copies
of any proposed or existing contracts for consultant services necessary for
construction of the proposed project and included as part of the total cost
of the project. Contracts for engineering services should include the scope
of services, level of effort, costs, schedules, and other information necessary
for adequate review by the executive administrator.
(h)
Compliance with state law. The applicant shall submit a
certification by the authorized representative of the applicant in a form
acceptable to the board which warrants compliance by the applicant with all
representations in the application, all laws of the State, and all rules
and published policies of the board.
(i)
Ordinance for prior lien bonds. If bonds to be sold to
the board are revenue bonds secured by a subordinate lien, then a copy of
the authorizing instrument of the governing body in the issuance of the prior
lien bonds shall be furnished.
(j)
Other information. The applicant shall submit other information
requested by the board or the executive administrator which is reasonably
necessary for an adequate understanding of the project.
(k)
Sites and easements. The applicant shall submit a description
of all real property interests (sites, easements, rights-of-way, or specific
use permits) necessary for construction of the project.
(1)
The applicant shall submit a statement explaining the status
and means of obtaining the property interests.
(2)
The applicant shall provide certification that it
has the necessary legal powers and authority to obtain the property interests.
(3)
The applicant shall submit a copy of any proposed
or existing lease or other agreement transferring interests in any land acquired
or to be acquired for the project.
(l)
Compliance with DWSRF capitalization grant requirements.
The applicant's authorized representative shall certify in a form acceptable
to the board that the applicant will comply with all federal laws, regulations,
and rules which apply to the DWSRF loan program.
§371.35. Required Environmental Review and Determinations.
(a)
General. The applicant's preparation of the environmental
information and the executive administrator's review and issuance of a determination
forms an integral part of the planning process required of any potential
applicant to the fund. There are three levels of environmental information
required, varying according to the nature and scope of the project and the
environment in which it is proposed. Correspondingly, the appropriate level
of review will be conducted by the board and formal determinations documenting
the review are issued. The categorical exclusion (CE) is directed toward
those applicants proposing only minor rehabilitation or functional replacement
of existing equipment. Although the environmental information required is
small, the proposed project must fit a narrow range of criteria defined in
paragraph (1)(A) of this subsection. The CE must be revoked and an environmental
information document (EID) must be prepared if the project is subsequently
modified so as to exceed the limits of the criteria. The majority of applicants
will prepare an EID, developed in accordance with guidance available from
the board. In addition to a greater amount of information to be supplied
by the applicant, a public hearing must be held on the proposed project and
the determination, a finding of no significant impact (FNSI), is also subject
to public comment for a period not less than 30 days following its issuance.
All applicants whose proposed projects do not meet the criteria for either
a CE or environmental impact statement (EIS) must prepare an EID. Although
there are other criteria involved, as described in paragraph (1)(C) of this
subsection and subsection (d)(3) of this section, an EIS is usually required
of those projects that are so major in scope or involve such environmentally
sensitive areas (i.e., floodplains, endangered species habitat, etc.) that
the proposed project may have significant adverse social or environmental
impacts. An EIS requires close coordination and involvement of the board
and other agencies in its preparation and results in a record of decision
(ROD). The board's staff shall endeavor to provide guidance as to the appropriate
level of environmental information to applicants during the pre-planning
process. All applicants are urged, however, to review the criteria and contact
the board's staff, particularly if there is doubt as to the level of environmental
information that is appropriate to the proposed project. Based on the environmental
information, the executive administrator will conduct an independent and
interdisciplinary environmental review consistent with the National Environmental
Policy Act (NEPA) of all projects funded through the DWSRF. This review will
further insure that the proposed project will comply with the applicable
local, state, and federal laws and board rules relating to the protection
and enhancement of the environment. Based upon the staff's review, the executive
administrator will make formal determinations regarding the potential social
and environmental impacts of the proposed project. As necessary, the determinations
will include mitigative provisions recommended to be applied as a condition
of receiving financial assistance. Funds will not be released for building
until a final environmental determination has been made. Proposed projects
using the pre-design funding option will follow the environmental review
procedures described under paragraph (2)(C) of this subsection.
(1)
Basic environmental determinations. There are three basic
environmental determinations that will apply to projects proposed to be implemented
with assistance from the fund. These are: a determination to categorically
exclude a proposed project from a formal environmental review, a FNSI based
upon a formal environmental review supported by an EID, and a determination
to provide or not provide financial assistance based upon a ROD following
the preparation of an EIS. The appropriate determination will be based on
the following criteria.
(A)
The CE determination applies to categories of projects
that have been shown over time not to entail significant impacts on the quality
of the human environment.
(i)
Proposed projects which meet the following criteria may
be categorically excluded from formal environmental review requirements.
(I)
The proposed project is directed solely toward minor rehabilitation
of existing facilities, functional replacement of equipment, or toward the
construction of related facilities adjoining the existing facilities that
do not affect the degree of treatment or the capacity of the works. Examples
include replacement of existing distribution lines within the same rights-of-way
or easements, rehabilitation of existing equipment and structures, and the
construction of structures on existing sites.
(II)
The proposed project is in a community of less than 10,000
population and is for minor expansions or upgrading of existing systems.
(ii)
CE's will not be granted for proposed projects that entail:
(I)
the construction of new distribution lines;
(II)
providing capacity for a population 30% or greater than
the existing population;
(III)
known or expected impacts to cultural resources, threatened
or endangered species, or other environmentally sensitive areas; or
(IV)
the construction of facilities which will not be, or apparently
will not be, cost-effective or are likely to cause significant public controversy.
(B)
The FNSI will be based upon an environmental review by
the staff supported by an EID prepared by the applicant in conformance with
guidance developed by the executive administrator. Based upon its review,
the staff will prepare an environmental assessment (EA) resulting in the
issuance of either a FNSI or a public notice that the preparation of an EIS
will be required. All applicants whose projects do not meet the criteria
for either a CE or EIS will be required to prepare an EID. The executive
administrator's issuance of a FNSI will be based upon an EA documenting that
the potential environmental impacts will not be significant or that they
may be mitigated without extraordinary measures.
(C)
The ROD may only be based upon an EIS prepared in conformance
with the format and guidelines described in subsection (b)(3) of this section.
An EIS will be required when the executive administrator determines any of
the following:
(i)
the proposed project will significantly affect the pattern
and type of land use or growth and distribution of the population;
(ii)
the effects of a proposed project's construction or operation
will conflict with local or state laws or policies;
(iii)
the proposed project may have significant adverse impacts
upon:
(I)
wetlands;
(II)
floodplains;
(III)
threatened and endangered species or their habitats;
(IV)
cultural resources including parklands, preserves, other
public lands, or areas of recognized scenic, recreational, agricultural,
archeological, or historic value;
(iv)
the proposed project will displace population or significantly
alter the characteristics of existing residential areas;
(v)
the proposed project may directly or indirectly (e.g.,
through induced development) have significant adverse effect upon local ambient
air quality, local noise levels, surface and ground water quantity or quality,
fish, shellfish, wildlife or their natural habitats;
(vi)
the proposed project may generate significant public controversy;
or
(vii)
the water supply is proposed to be obtained from a surface
or groundwater source where the characterization of quality and/or quantity
is being challenged or for which the proposed withdrawal might adversely
affect the quality or quantity.
(2)
Other determinations that are required of
the board.
(A)
Recognizing that a project may be altered at some time
after an environmental determination on the proposed project has been issued,
the executive administrator will provide that, prior to approval of the alterations,
the contract documents, loan application, or related documents will be examined
for consistency with the environmental determination. If minor inconsistencies
are found and the amended project will not entail adverse environmental impacts
different from those previously identified, the project may be allowed to
proceed without additional formal environmental review. When substantive
inconsistencies are found or new adverse environmental impacts may result,
the executive administrator will revoke a CE and require the preparation
of an EID or an EIS, consistent with the criteria of paragraph (1) of this
subsection, or require the preparation of amendments to an EID or supplements
to an EIS, as appropriate. Based upon the staff's review of the amended project,
the executive administrator will:
(i)
reaffirm the original environmental determination through
the issuance of a public notice or statement of finding;
(ii)
issue a FNSI when a CE has been revoked, or issue a public
notice that the preparation of an EIS will be required;
(iii)
issue an amendment to a FNSI, or revoke a FNSI and issue
a public notice that the preparation of an EIS will be required; or
(iv)
issue a supplement to a ROD, or revoke the ROD and issue
a public notice that financial assistance will not be provided.
(B)
When five or more years have elapsed between the last
environmental determination and the submittal of an application to the fund,
the executive administrator will re-evaluate the proposed project, environmental
conditions and public views, and prior to presentation of the application
to the board, proceed in accordance with subparagraph (A) of this paragraph.
(C)
For projects using the pre-design funding option, board
staff will use preliminary environmental data provided by the applicant,
as specified in §371.38 of this title (relating to Pre-Design Funding
Option), and make a written report to the executive administrator on known
or potential significant social or environmental concerns before an application
for pre-design funding is taken to the board. Prior to release of funds for
design, these projects must have approval by the board after the appropriate
level of environmental review has been conducted during planning, as provided
under this section.
(3)
Other determinations that are available to the
board.
(A)
The executive administrator may adopt previous environmental
determinations issued by the EPA and other federal agencies whose determinations
may be considered to be current and applicable under the environmental review
requirements of this section. In so doing, the executive administrator will
insure that all mitigative measures specified in the previous determinations
are applied as conditions of the loan agreement and that such adoption will
be consistent with the requirements of these rules. The executive administrator
will adopt the previous determination by means of a statement of findings,
when the proposed project and its previous determination are to be adopted
without substantial modifications, or in a FNSI which will explain modifications
to the proposed project, potential environmental impacts identified during
an environmental review, and any mitigative measures proposed in addition
to those included in the federal environmental determination to be adopted.
(B)
In order to better inform the public, the executive administrator
may issue a statement of findings to interested agencies and public groups
describing the outcome of a mitigative condition required by an environmental
determination.
(b)
Required environmental information. A minimum of three
copies of all information required in this subsection shall be submitted
to the executive administrator.
(1)
Applicants seeking a CE for their proposed projects will
provide the executive administrator with sufficient documentation to demonstrate
compliance with the criteria of subsection (a)(1)(A) of this section. At
a minimum, this will consist of:
(A)
a brief, complete description of the proposed project
and its costs;
(B)
a statement indicating that the project is cost-effective
and that the applicant is financially capable of constructing, operating
and maintaining the facilities; and
(C)
a plan map or maps of the proposed project showing:
(i)
the location of all construction areas,
(ii)
the planning area boundaries, and
(iii)
any known environmentally sensitive areas.
(2)
An EID must be submitted by those applicants
whose proposed projects do not meet the criteria for a CE and for which the
executive administrator has made a preliminary determination that an EIS
will not be required. The executive administrator will provide guidance on
both the format and contents of the EID to potential applicants prior to
initiation of planning.
(A)
At a minimum, the contents of an EID will include:
(i)
the purpose and need for the project;
(ii)
the environmental setting of the proposed project and
the future of the environment without the project;
(iii)
the alternatives to the project as proposed and their
potential environmental impacts;
(iv)
a description of the proposed project;
(v)
the potential environmental impacts of the project as proposed
including those which cannot be avoided;
(vi)
the relationship between the short term uses of man's
environment and the maintenance and enhancement of long term productivity;
(vii)
any irreversible and irretrievable commitments of resources
to the proposed project;
(viii)
a description of public participation activities conducted,
issues raised, and changes to the project which may be made as a result of
the public participation process; and
(ix)
documentation of required public participation activities
and coordination with appropriate governmental agencies.
(B)
Prior to the applicant's adoption of the DWSRF engineering
feasibility report, the applicant will hold a public hearing on the proposed
project and the EID, and provide the executive administrator with a verbatim
transcript of the hearing. The executive administrator will provide guidance
to the applicant regarding the contents of the hearing notice and of the
hearing. The hearing will be advertised at least 30 days in advance in a
local newspaper of general circulation within the area to be impacted by
the proposed project. Notice of the public hearing and availability of the
documents also will be sent at least 30 days in advance of the public hearing
to all local, state, and federal agencies and public and private parties
that may have an interest in the proposed project. Included with the transcript
will be a list of all attenders, any written testimony, and the applicant's
responses to the issues raised.
(C)
The applicant will provide copies of the EID to all federal,
state, and local agencies and others with an interest in the proposed project.
The executive administrator will provide guidance to the applicant regarding
coordination requirements.
(3)
The format of an EIS will encourage sound analysis
and clear presentation of alternatives, including the no action alternative
and the preferred alternative, and their environmental, economic, and social
impacts. The following format must be followed by the applicant unless the
executive administrator determines there are compelling reasons to do otherwise:
(A)
a cover sheet identifying the applicant, the proposed
project(s), the program through which financial assistance is requested,
and the date of publication;
(B)
an executive summary consisting of a 10 to 15 page precis
of the critical issues of the EIS in sufficient detail that the reader may
become familiar with the proposed project and its cumulative effects. The
summary will include:
(i)
a description of the existing problem;
(ii)
a description of each alternative;
(iii)
a listing of each alternative's potential environmental
impacts, mitigative measures and any areas of controversy; and
(iv)
any major conclusions;
(C)
the body of the EIS, which will contain the following
information:
(i)
a complete and clear description of the purpose and need
for the proposed project and objectives;
(ii)
a balanced description of each alternative considered
by the applicant. The descriptions will include the size and location of
the facilities and pipelines, land requirements, operation and maintenance
requirements, and construction schedules. The alternative of no action will
be discussed and the applicant's preferred alternative(s) will be identified.
Alternatives that were eliminated from detailed examination will be presented
with the reasons for their elimination;
(iii)
a description of the alternatives available to the board
including:
(I)
providing financial assistance to the proposed project;
(II)
requiring that the proposed project be modified prior
to providing financial assistance to reduce adverse environmental impacts,
or providing assistance with conditions requiring the implementation of mitigative
measures; and
(III)
providing no financial assistance;
(iv)
a description of the alternatives available to other local,
state, and federal agencies which may have the ability to issue or deny a
permit, provide financial assistance, or otherwise effect or have an interest
in any of the alternatives;
(v)
a description of the affected environment and environmental
consequences of each alternative. The affected environment on which the evaluation
of each alternative will be based includes, as a partial listing, hydrology,
geology, air quality, noise, biology, socioeconomics, land use, and cultural
resources of the planning area. The executive administrator will provide
guidance, as necessary, to the applicant regarding the evaluation of the
affected environment. The discussion will present the total impacts of each
alternative in a manner that will facilitate comparison. The effects of the
no action alternative must be included to serve as a baseline for comparison
of the adverse and beneficial impacts of the other alternatives. A description
of the existing environment will be included in the no action section to
provide background information. The detail in which the affected environment
is described will be commensurate with the complexity of the situation and
the significance of the anticipated impacts.
(4)
The draft EIS will be provided to all local,
state and federal agencies and public groups with an interest in the proposed
project and be made available to the public for review. The final EIS will
include all objections and suggestions made before and during the draft EIS
review process, along with the issues of public concern expressed by individuals
or interested groups. The final EIS must include discussions of any such
comments pertinent to the project or the EIS. All commentors will be identified.
If a comment has led to a change in either the project or the EIS, the reason
should be given. The board's staff will always endeavor to resolve any conflicts
that may have arisen, particularly among permitting agencies, prior to the
issuance of the final EIS. In all cases, the comment period will be no less
than 45 days.
(5)
Material incorporated into an EIS by reference will
be organized to the extent possible into a supplemental information document
and be made available for public review upon request. No material may be
incorporated by reference unless it is reasonably available for inspection
by interested persons within the comment periods specified in subsection
(b)(4) of this section.
(6)
Preparation of the EIS will be done, at the discretion
of the executive administrator: directly by its own staff; by consultants
to the board; or by a consultant, contracted by the applicant subject to
approval by the executive administrator. In the latter two cases, the consultants
will be required to execute a disclosure statement prepared by the executive
administrator signifying they have no financial or other conflicting interest
in the outcome of the project. When an EIS is prepared by contractors, either
in the service of the applicant or the board, the executive administrator
will independently evaluate the EIS prior to issuance of the ROD and take
responsibility for its scope and contents. The board staff who undertake
this evaluation will be identified under the list of preparers along with
those of the contractor and any other parties responsible for the content
of the EIS.
(7)
The following public participation requirements are
the minimum allowable to the applicant and the board.
(A)
Upon making the determination that an EIS will be required
of a proposed project, the executive administrator will publish in the Texas
Register and distribute a notice of intent to prepare an EIS.
(B)
As soon as possible after the notice of intent has been
issued, the executive administrator will convene a meeting of the affected
federal, state, and local agencies, the applicant, and other interested parties
to determine the scope of the EIS. A notice of this scoping meeting may be
incorporated into the notice of intent or prepared and issued separately.
In no case will the notification period be less than 45 days. As part of
the scoping meeting the board will, at a minimum:
(i)
determine the significance of issues and the scope of those
significant issues to be analyzed in depth in the EIS;
(ii)
identify the preliminary range of alternatives to be considered;
(iii)
identify potential cooperating agencies and determine
the information or analyses that may be needed from cooperating agencies
or other parties;
(iv)
discuss the method for EIS preparation and the public
participation strategy;
(v)
identify consultation requirements of other laws and regulations;
(vi)
determine the relationship between the preparation of
the EIS and the completion of the DWSRF engineering feasibility report and
any necessary arrangements for coordination of the preparation of both documents.
(C)
Following the scoping process, the executive administrator
will begin the identification and evaluation of all potentially viable alternatives
to adequately address the range of issues developed in the scoping. A summary
of this, including a list of the significant issues identified, will be provided
to the applicant and other interested parties.
(D)
The draft EIS will be the subject of a formal public hearing
and any other public participation activities determined to be appropriate
during the scoping process. Both the draft EIS and final EIS will be distributed
and made available for public review in a fashion consistent with the requirements
of paragraph (2)(B) of this subsection except that the advertisement period
for the public hearing and comment periods for the draft EIS and final EIS
will be no less than 45 days. The executive administrator will publish, in
the Texas Register and a newspaper(s) of general circulation in the project
area, a notice of availability of the EIS giving locations at which it will
be available for public review at least 45 days prior to making any environmental
determination.
(c)
Environmental Review.
(1)
When the executive administrator has determined that an
applicant's proposed project may be excluded from a formal environmental
review or has determined that a CE is to be rescinded, the executive administrator
will prepare a public notice of the determination and the availability of
supporting documentation for public inspection. The notice will be published
in a local newspaper of community-wide circulation by the applicant. The
executive administrator, concurrent with the publication, will distribute
the notice to all interested parties.
(2)
An environmental review of the proposed project, supported
by the applicant's EID, will be conducted by the executive administrator
to determine whether any significant impacts are anticipated and whether
any changes may be made in the proposed project to eliminate significant
adverse impacts. As part of this review, the executive administrator may
require the applicant to submit additional information or undertake additional
public participation and coordination to support the environmental determination.
Based on the environmental review, the executive administrator will prepare
an EA, describing:
(A)
the purpose and need for the proposed project;
(B)
the proposed project, including its costs;
(C)
the alternatives considered and the reasons for their
rejection or acceptance;
(D)
the existing environment;
(E)
any potential adverse impacts and mitigative measures;
and
(F)
any proposed conditions to the provision of financial
assistance and any means provided for the monitoring of compliance with the
conditions.
(3)
Based upon this EA, the executive administrator
will issue a FNSI or issue a notice of intent to prepare an EIS. The FNSI
will include a brief description of the proposed project, its costs, any
mitigative measures proposed for the applicant as a condition of its receipt
of financial assistance, and a statement to the effect that comments supporting
or disagreeing with the FNSI may be submitted for consideration by the board.
The EA will be attached to the FNSI when mitigative measures are specified
by conditions of the financial assistance. The FNSI will be distributed to
all parties, governmental entities, and agencies that may have an interest
in the proposed project. No action regarding approval of the DWSRF engineering
feasibility report will be taken by the executive administrator for at least
30 days after the issuance of the FNSI. Additionally, except for projects
utilizing the pre-design option under §371.38 of this title (relating
to Pre-Design Funding Option), no funds for building will be released for
at least 30 days after the issuance of the FNSI. For projects utilizing the
pre-design option, approval of the release of funds for planning will be
made prior to the issuance of the FNSI, but no approval for release of funds
for design or building will be made until at least 30 days after the issuance
of the FNSI.
(4)
Except for projects utilizing pre-design funding under
§371.38 of this title (relating to Pre-Design Funding Option), the executive
administrator will prepare a concise public ROD following the public hearing
on the draft EIS and the comment period on the final EIS and before the decision
to approve the DWSRF engineering feasibility report or to provide or deny
financial assistance to the proposed project. The ROD will describe those
mitigative measures to be taken which will make the selected alternative
environmentally acceptable. For projects utilizing the pre-design funding
option under §371.38 of this title (relating to Pre-Design Funding Option),
the ROD shall be made prior to the board's approval of the release of funds
for design.
(d)
Application of other laws and authorities. In addition
to the requirements of state law and rules, the Act, and the NEPA, the board
must, as required by the initial guidance for the state water pollution control
revolving fund and the drinking water capitalization grant agreement, insure
that each project proposed to receive DWSRF financial assistance complies
with the following federal laws and authorities respecting the human environment:
the Archeological and Historic Preservation Act of 1974, Public Law 93-191;
the Historic Sites Act; the Clean Air Act, 42 United States Code 7506(c);
the Coastal Barrier Resources Act, 16 United States Code 3501 et seq., the
Coastal Zone Management Act of 1972, Public Law 92-583, as amended; the Endangered
Species Act, 16 United States Code 1531 et seq.; Executive Order 11953, Protection
and Enhancement of the Cultural Environment; Executive Order 11988, Floodplain
Management; the Flood Disaster Protection Act of 1973, Public Law 93-234;
Executive Order 11990, Protection of Wetlands; the Farmland Protection Policy
Act, 7 United States Code 4201 et seq.; the Fish and Wildlife Coordination
Act, Public Law 85-624, as amended; the National Historic Preservation Act
of 1966, Public Law 89-665, as amended; the Safe Drinking Water Act, §1424(e),
Public Law 92-523, as amended; and the Wild and Scenic Rivers Act, Public
Law 90-542, as amended. Because particular federal and/or state agencies
are charged with the enforcement of or permitting under many of these laws
and authorities, the executive administrator will provide guidance to applicants
to the fund regarding consultation requirements and will encourage proper
coordination of project planning with the appropriate agencies. Because of
their complexity and critical importance to the board's administration of
the fund, the board has adopted the following sections to effect proper compliance
with the requirements of the Flood Disaster Protection Act of 1973, the Coastal
Barrier Resources Act, and Executive Order 11988.
(1)
The board will not provide financial assistance from the
DWSRF for any project element that is proposed to be constructed in a floodplain
when the applicant's community is sanctioned by the Federal Emergency Management
Agency (FEMA) in its administration of the National Flood Insurance Program,
pursuant to the requirements of the Flood Disaster Protection Act of 1973,
Public Law 93-234.
(2)
The board will not provide financial assistance from
the fund to any entity proposing construction in or extension or expansion
of water service into any area within the Coastal Barrier Resources System
other than those permitted by the Coastal Barrier Resources Act, 16 United
States Code 3501 et seq.
(3)
Pursuant to the requirements of Executive Order 11988,
the board will avoid direct and indirect support of development in floodplains
wherever there is a practicable alternative. Therefore, both to preserve
the significant natural functions and values of floodplains and to protect
human health and safety.
(A)
The board may provide financial assistance from the fund
for the transportation or treatment of drinking water in a floodplain only
when the proposed project will provide service to:
(i)
areas of existing development in a floodplain;
(ii)
facilities such as marinas which, by their nature, must
be located in floodplains;
(iii)
areas of projected growth if an EID demonstrates that
the proposed development will be consistent with FEMA's floodplain management
criteria for flood prone areas (40 Code of Federal Regulations 60.3) and
will have no significant impacts on natural functions and values of floodplains;
(iv)
areas of projected growth if an EIS demonstrates that
there is no practicable alternative to such growth, that such growth will
be consistent with the floodplain management criteria cited in clause (iii)
of this subparagraph and that the benefits of such growth outweigh its costs
to the natural functions and values of the effected floodplains or risks
to human health and safety.
(B)
When regional systems are proposed, the board will require
the regional authority and the member entities to demonstrate compliance
with these rules.
(C)
For the purposes of this subsection, the following definitions
will apply:
(i)
Areas of existing development - All or part of the project
planning area which, at the time of the board's issuance of its environmental
determination, is:
(I)
occupied by existing structures or facilities;
(II)
substantially surrounded by existing structures and facilities
and which serves no significant independent natural floodplain function;
or
(III)
characterized by substantial investment in public infrastructure
(e.g., roads and utilities are available to individual users) but which is
only partially occupied by structures or facilities.
(ii)
Floodplain or 100-year floodplain - Those lowland, relatively
flat areas usually adjoining inland or coastal waters that have a 1% or greater
chance of flooding in any given year. In determining these areas, the applicant
will use flood insurance rate maps or flood hazard boundary maps approved
by FEMA. Where these maps are unavailable, the applicant should produce its
own map(s) delineating the 100-year floodplain and showing 100-year flood
elevations. Such maps should be prepared in accordance with FEMA's Guidelines
and Specifications for Study Contractors.
(iii)
Natural functions and values of the floodplain include:
(I)
maintenance of water quality;
(II)
transport, storage, and absorption of floodwaters;
(III)
groundwater recharge;
(IV)
flow of debris;
(V)
wildlife habitat;
(VI)
cultural and historical resource repository;
(VII)
agricultural resources; and
(VIII)
aesthetic resources.
(D)
The board will, as appropriate and consistent with the
requirements of these rules and Executive Order 11988, require assurances
or include conditions to the provision of DWSRF financial assistance to insure
compliance with these rules.
§371.36. Required DWSRF Engineering Feasibility Report.
(a)
Applicant shall submit an engineering feasibility report
signed and sealed by a professional engineer registered in the State of Texas.
The report, based on guidelines provided by the executive administrator,
shall provide:
(1)
description and purpose of the project;
(2)
entities to be served and current and future population;
(3)
the cost of the project;
(4)
sufficient information to evaluate the engineering
feasibility; and
(5)
maps and drawings as necessary to locate and describe
the project area. The executive administrator may request additional information
or data as necessary to evaluate the project.
(b)
Approval of DWSRF Engineering Feasibility Report. The executive
administrator will approve the DWSRF engineering feasibility report after
determining that the items listed in subsection (a) of this section have
been completed, the appropriate environmental determinations have ben completed
in accordance with §371.35 of this title (relating to Required Environmental
Review and Determinations), the project has been determined to be cost effective,
and the loan recipient has agreed to incorporate all mitigating measures
directed by the executive administrator.
(c)
Changes to DWSRF Engineering Feasibility Report. If changes
occur in the project after approval of the engineering feasibility report,
the executive administrator may request additional engineering and/or environmental
information in order to ascertain that the loan commitment and environmental
determination continues to be appropriate.
§371.37. Required Water Conservation Plan.
(a)
The applicant, if not eligible for an exemption, shall
submit either with its application or separately under subsection (b) of
this section two copies of a water conservation plan for approval. The executive
administrator shall review all water conservation plans submitted as part
of an application for financial assistance for a project, shall determine
if the plans are adequate, and shall present information to the board on
the water conservation plan when the application is considered by the board.
(b)
An applicant may elect to submit the required water conservation
plan after the board approves its application for assistance but before any
funds are released. In such case, the applicant shall submit the conservation
plan to the executive administrator for review. The executive administrator
shall make a preliminary determination as to whether the plan is adequate,
and shall submit the plan to the board for consideration. The board will
approve, disapprove, or approve with modifications the applicant's water
conservation plan during an open meeting. The board may revise the amount
and conditions of its financial commitment after considering the water conservation
plan.
(c)
The water conservation plan required under subsections
(a) or (b) of this section shall include an evaluation of the applicant's
water and wastewater system and shall set goals to be accomplished by water
conservation measures. The plan shall include a long-term water conservation
plan and an emergency water demand management plan. In addition to any elements
deemed appropriate by the applicant, the long-term plan shall include the
following:
(1)
measures to determine and control unaccounted for water
including universal metering of both customer and public uses, periodic meter
testing and repair, and distribution system leak detection and repair;
(2)
non-promotional retail water rate structures which
do not promote the excessive use of water by retail customers; and
(3)
a continuing program of education and information
which provides water conservation information directly to each residential,
industrial and commercial customer annually, includes at least one other
type of annual educational water conservation activity, and provides water
conservation literature to new customers when they apply for service.
(d)
The board may not require an applicant to provide a water
conservation plan if the board determines an emergency exists, the amount
of financial assistance to be provided is $500,000 or less, or implementation
of a water conservation program is not reasonably necessary to facilitate
water conservation.
(1)
An emergency exists when:
(A)
a water system has failed, causing the health and safety
of the citizens served to be endangered;
(B)
sudden, unforeseen demands are placed on a water system
(i.e., because of military operations or emergency population relocation);
(C)
a disaster has been declared by the governor or president;
or
(D)
the Governor's Division of Emergency Management of the
Texas Department of Public Safety has determined that an emergency exists.
(2)
The board shall review an application for which
an emergency is determined to exist six months after the board commits to
financial assistance, and also at the time of any extensions of the loan
commitment. If the board finds that the emergency no longer exists, it may
then require submission of a water conservation plan satisfactory to the
board, before making any further disbursements on the commitments.
(3)
Submission of a plan is not necessary to facilitate
water conservation if the applicant already has a program in effect that
meets the requirements of this section.
(e)
If the political subdivision will utilize the project financed
by the board to furnish water services to another political subdivision that
in turn will furnish the water services to the ultimate consumer, the requirements
for the water conservation plan may be met either through contractual agreements
between the political subdivisions providing for establishment of a water
conservation plan, which shall be included in the contract at the earliest
of the original execution, renewal or substantial amendment of that contract,
or by other appropriate measures.
(f)
The long term water conservation plan may also include
other measures that the political subdivision deems appropriate. These may
include, but are not limited to, measures such as:
(1)
codes and ordinances which require the use of water-conserving
technologies;
(2)
measurement and control of excessive pressure in the
distribution system;
(3)
ordinances to promote efficiency and avoid waste;
(4)
commercial and residential conservation audits for
indoor and landscape water uses;
(5)
plumbing fixture replacement and retrofit programs;
(6)
recycling and reuse of reclaimed wastewater and/or
gray water; and
(7)
other measures as may be applicable.
(g)
The emergency demand management plan shall include trigger
conditions, demand management measures, initiation and termination procedures,
means of implementation, and measures to educate and inform the public.
(h)
The board will accept a water conservation plan determined
by the commission to satisfy the requirements of 30 TAC Chapter 288 (relating
to Water Conservation Plans, Guidelines, and Requirements).
§371.38. Pre-Design Funding Option.
(a)
This loan application option will provide an applicant
that meets all applicable board requirements an alternative to secure loan
proceeds for planning, design or building costs associated with a project.
Under this option, a loan may be closed and funds released to complete planning
activities. If all required planning has been completed and approved, design
funds may also be released at the time of closing and building funds will
be escrowed. If planning requirements have not been satisfied, design and
building funds will be escrowed and released in the sequence described in
this section. After planning and environmental review, the board may require
the applicant to make changes in order to receive the board's approval and
proceed with the project. If the portion of a project associated with funds
in escrow cannot proceed, the loan recipient shall use the escrowed funds
to redeem bonds purchased by the board in inverse order of maturity. General
procedures and requirements for pre-design funding are described in this
section.
(b)
The executive administrator may recommend to the board
the use of this section if, based on available information, there appear
to be no significant permitting, social, contractual, environmental, engineering,
or financial issues associated with the project. An application for pre-design
funding may be considered by the board despite a negative recommendation
from the executive administrator.
(c)
Applications for pre-design funding must include the following
information:
(1)
for loans including building cost, an engineering plan
of study which will include at minimum: a description and purpose of the
project; area maps or drawings as necessary to fully locate the project area(s);
a proposed project schedule; estimated project costs and budget including
sources of funds; current and future populations and projected flows; alternatives
considered; and a discussion of known permitting, social or environmental
issues which may affect the alternatives considered and the implementation
of the proposed project;
(2)
contracts for engineering services;
(3)
evidence that an approved water conservation plan
as required under §371.37 of this title (relating to Required Water
Conservation Plan) will be adopted prior to the release of loan funds or
the applicant's election to submit the water conservation plan under §371.37
of this title (relating to Required Water Conservation Plan);
(4)
all information required in §§371.32-371.34
of this title (relating to Required General Information, Required Fiscal
Data, and Required Legal Data, respectively), and
(5)
any additional information the executive administrator
may request to complete evaluation of the application.
(d)
After board commitment and completion of all closing and
release prerequisites as specified in §371.71 of this title (relating
to Loan Closing) and §371.72 of this title (relating to Release of Funds),
funds will be released in the following sequence:
(1)
for planning and permitting costs, after receipt of executed
contracts for the planning or permitting phase, and after approval of a water
conservation plan if still outstanding under §371.37 of this title (relating
to Required Water Conservation Plan);
(2)
for design costs, after receipt of executed contracts
for the design phase and upon approval of an DWSRF feasibility report as
specified in §37l.36 of this title (relating to Required DWSRF Engineering
Feasibility Report) and compliance with §371.35 of this title (relating
to Required Environmental Review and Determinations) and after board approval
under subsection (e) of this section; and
(3)
for building costs, after issuance of any applicable
permits, and after bid documents are approved and executed construction documents
are contingently awarded.
(e)
Board staff will use preliminary environmental data provided
by the applicant, as specified in subsection (c)(1) of this section and make
a written report to the executive administrator on known or potential significant
social or environmental concerns to allow the executive administrator to
make a recommendation to the board on pre-design funding. Prior to release
of funds for design, these projects must have the board's approval based
upon an environmental review conducted during planning under the standards
of §371.35 of this title (relating to Required Environmental Review
and Determination) as applicable.
(f)
Prior to the board's approval of release of funds for design,
the executive administrator shall summarize the project's environmental review
and shall inform the board of any environmentally related special mitigative
or precautionary measures recommended for the project. The board may elect
to affirm or alter the conditions of the original commitment to the applicant
or withdraw the commitment to the applicant.
§371.39. Review of Applications by the Executive Administrator.
(a)
Review criteria for loans. The executive administrator
will review the applications and request any modifications or additional
information as may be required for consistency with: §371.32 of this
title (relating to Required General Information); §371.33 of this title
(relating to Required Fiscal Data); §371.34 of this title (relating
to Required Legal Data); §371.35 of this title (relating to Required
Environmental Review and Determinations); §371.36 of this title (relating
to Required DWSRF Engineering Feasibility Report); and §371.38 of this
title (relating to Pre-Design Funding Option). If at any time the executive
administrator determines that requested modifications or information is not
being provided expeditiously by the applicant or that the applicant is not
proceeding expeditiously to seek a loan commitment he shall, after notice
to the applicant, return the application. The application will have to be
resubmitted to receive consideration for financial assistance.
(b)
Review criteria for refinancing. The executive administrator
shall review an application for refinancing of construction costs and present
it to the board only after confirming the following.
(1)
All of the items in subsection (a) of this section have
been confirmed.
(2)
The contract documents have been approved in accordance
with §371.62 of this title (relating to Approval of Contract Documents).
(3)
The executed contract documents have been submitted
and approved, if available.
(4)
An inspection and, if necessary, appraisal of any
completed work has been performed and the findings demonstrate the project
is consistent with the board's rules.
(5)
The DWSRF engineering feasibility report and environmental
review was completed in accordance with §371.36 of this title (relating
to Required DWSRF Engineering Feasibility Report) before initiation of construction.
(6)
Any other information requested by the executive administrator
has been provided.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's authority to
adopt.
Issued in Austin, Texas, on January 3, 1996.
TRD-9700132
Craig D. Pedersen
Executive Administrator
Texas Water Development Board
Earliest possible date of adoption: February 14, 1997
For further information, please call: (512) 463-7981
31 TAC §371.51, §371.52
The new sections are proposed under the authority of the Texas
Water Code, 6.101 and 15.605, which provides the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State and specifically
the SRF Program.
§371.51. Formal Action by the Board.
(a)
Presentation to board. The executive administrator shall
present the application to the board after completing the review pursuant
to §371.39 of this title (relating to Review of Applications by Executive
Administrator), and shall include comments concerning the best method of
making financial assistance available. Upon the executive administrator's
finding that the application is complete and in order for board review, the
application shall be placed on the following month's agenda for board consideration.
The applicant and other interested parties known to the board shall be notified
of the time and place of such meeting. Evidence and arguments both for and
against the granting of the application may be heard at such meeting.
(b)
Action by board. At the conclusion of the meeting to consider
the project, the board may resolve to approve, disapprove, amend, or continue
consideration of the application. The board shall approve an application
only if the board finds that in its opinion the revenue or taxes or both
revenue and taxes pledged by the applicant will be sufficient to meet all
obligations assumed by the applicant and that the application and assistance
applied for meet the requirements of the federal act and state law.
(c)
Commitment date. Applicants for funds under this chapter
must close their loans within 24 months of the date the board commits funds,
unless they request of the board and receive an extension of the commitment
date.
§371.52. Lending Rates.
Interest Rates for Loans from the State Safe Drinking Water Revolving
Fund will be computed as follows:
(1)
The fixed interest rates for DWSRF loans under this chapter
are set at a rate of 120 basis points below the fixed rate index rates for
borrowers. The fixed rate index rates shall be established for each borrower
based on the borrower's market cost of funds as they relate to the Delphis
Hanover Corporation Range of Yield Curve Scales or the 90 index of the Delphis
Hanover Corporation Scale for borrowers with either no rating or a rating
less than investment grade, using individual coupon rates for each maturity
of proposed debt based on the appropriate rate scale of the index.
(2)
The Development Fund Manager may adjust a borrower's
interest rate at any time prior to closing as a result of a change in the
borrower's credit rating.
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's authority to
adopt.
Issued in Austin, Texas, on January 3, 1996.
TRD-9700133
Craig D. Pedersen
Executive Administrator
Texas Water Development Board
Earliest possible date of adoption: February 14, 1997
For further information, please call: (512) 463-7981
31 TAC §371.61, §371.62
The new sections are proposed under the authority of the Texas
Water Code, 6.101 and 15.605, which provides the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State and specifically
the SRF Program.
§371.61. Contract Documents.
An applicant shall obtain executive administrator approval of contract
documents, including engineering plans and specifications, prior to receiving
bids and awarding the contract. The applicant shall submit three copies of
contract documents; which shall be as detailed as would be required for submission
to contractors bidding on the work, and which shall be consistent with the
engineering feasibility information submitted with the application. The contract
documents must contain the following:
(1)
provisions assuring compliance with the board's rules and
all relevant statutes;
(2)
forms by which the performance and payment bonds will
be provided;
(3)
provisions requiring the contractor to obtain and
maintain the appropriate insurance coverage;
(4)
provisions providing for the applicant to retain a
minimum of 5% of the progress payments otherwise due to the contractor until
the building of the project is substantially complete and a reduction in
the retainage is authorized by the executive administrator;
(5)
a contractor's act of assurance form to be executed
by the contractor which shall warrant compliance by the contractor with all
laws of the State of Texas and all rules and published policies of the board;
(6)
provisions giving authorized representatives of the
board access to all such construction activities, books, records, documents
and other evidence of the contractor for the purpose of inspection, audit
and copying during normal business hours; and
(7)
any additional conditions that may be requested by
the executive administrator.
§371.62. Approval of Contract Documents.
(a)
Approval. The executive administrator will approve the
contract documents if they:
(1)
conform to the requirements listed in this section (relating
to Approval of Contract Documents);
(2)
are consistent with all relevant statutes, including
the Water Code;
(3)
pass a biddability, operability, and constructability
review by the executive administrator; and
(4)
are consistent with the DWSRF engineering feasibility
report and environmental determinations required by §371.35 of this
title (relating to Required Environmental Review and Determinations) and
§371.36 of this title (relating to Required DWSRF Engineering Feasibility
Report).
(b)
Advertisement for Bids. The applicant shall obtain authorization
from the executive administrator before advertising for bids on the project.
(c)
Other approvals. The applicant shall obtain the approval
of the plans and specifications from each state and federal agency having
jurisdiction over the project. The executive administrator's approval of
the contract documents does not relieve the applicant of any liabilities
or responsibilities with respect to the design, construction, operation,
or performance of the project.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 3, 1996.
TRD-9700134
Craig D. Pedersen
Executive Administrator
Texas Water Development Board
Earliest possible date of adoption: February 14, 1997
For further information, please call: (512) 463-7981
31 TAC §371.71, §371.72
The new sections are proposed under the authority of the Texas
Water Code, 6.101 and 15.605, which provides the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State and specifically
the SRF Program.
§371.71. Loan Closing.
(a)
Instruments needed for closing. The documents which shall
be required at the time of closing shall include the following:
(1)
evidence that requirements and regulations of all local,
state and federal agencies having jurisdiction have been met prior to release
of building funds, including but not limited to permits and authorizations;
(2)
certified copy of the ordinances or resolutions adopted
by the governing body authorizing issuance of debt sold to the board which
has received prior approval by the executive administrator and which shall
have sections providing:
(A)
that an escrow account, if applicable, shall be created
which shall be separate from all other funds and that:
(i)
the account shall be maintained at an escrow agent bank
or maintained with the trust agent;
(ii)
funds shall not be released from the escrow account without
written approval by the executive administrator;
(iii)
if requested, the escrow account bank statements or trust
account statement will be provided on a monthly basis to the development
fund manager's office; and
(iv)
the escrow account will be adequately collateralized as
determined by the executive administrator sufficient to protect the board's
interest.
(B)
that a construction fund shall be created which shall
be separate from all other funds of the applicant;
(C)
that a final accounting be made to the board of the total
sources and authorized use of project funds and that any surplus loan funds
be used in a manner as approved by the executive administrator;
(D)
that an annual audit of the applicant, prepared in accordance
with generally accepted auditing standards by a certified public accountant
or licensed public accountant be provided annually for the life of the loan
to the executive administrator;
(E)
that the applicant shall fix and maintain rates and collect
charges to provide adequate operation, maintenance and insurance coverage
on the project in an amount sufficient to protect the board's interest;
(F)
that the applicant will implement any water conservation
program required by the board until all financial obligations to the state
have been discharged;
(G)
that the applicant shall maintain current, accurate and
complete records and accounts necessary to demonstrate compliance with financial
assistance related legal and contractual provisions;
(H)
that the applicant covenants to abide by the board's rules
and relevant statutes, including the Texas Water Code, Chapter 15, subchapter
J; and
(I)
that the applicant, or an obligated person for whom financial
or operating data is presented, will undertake, either individually or in
combination with other issuers of the applicant's obligations or obligated
persons, in a written agreement or contract to comply with requirements for
continuing disclosure on an ongoing basis substantially in the manner required
by Securities and Exchange Commission (SEC) rule 15c2-12 and determined as
if the board were a Participating Underwriter within the meaning of such
rule, such continuing disclosure undertaking being for the benefit of the
board and the beneficial owner of the political subdivision's obligations,
if the board sells or otherwise transfers such obligations, and the beneficial
owners of the board's bonds if the political subdivision is an obligated
person with respect to such bonds under rule 15c2-12.
(3)
two copies of the applicant's water conservation
program, including documentation of local adoption;
(4)
unqualified approving opinions of the attorney general
of Texas and a certification from the comptroller of public accounts that
such debt has been registered in that office;
(5)
unqualified approving opinion by a recognized bond
attorney acceptable to the executive administrator;
(6)
executed escrow agreement entered into by the entity
and an escrow agent bank or an executed trust agreement entered into by the
entity and the trust agent satisfactory to the executive administrator, in
the event that construction funds are escrowed;
(7)
assurances that the applicant will comply with any
special conditions specified by the board's environmental determination until
all financial obligations to the state have been discharged;
(8)
other or additional data and information, if deemed
necessary by the executive administrator; and
(b)
Certified transcript. At such time as available following
the final release of funds the applicant shall submit a transcript of proceedings
relating to the debt purchased by the board which shall contain those instruments
normally furnished a purchaser of debt.
(c)
Refinancing construction loans. If the project includes
the refinancing of a loan, the applicant shall submit all of the items specified
in subsection (a) of this section and any records, assurances, or appraisals
concerning the construction of the project. Additionally, the project must
pass the executive administrator's inspection of the project.
(d)
Loan closing prior to completion of design. In the event
financial assistance is needed by the applicant to complete design of a project
without escrow of funds for building under §371.38 of this title (relating
to Pre-Design Funding Option), the executive administrator will so advise
the board. The board at its option may authorize the executive administrator
to close the loan for planning and design without requiring the submittals
in subsection (a)(1) and (6) of this section. However, the submittals in
subsection (a)(1) of this section will be required prior to delivery of funds
for building purposes. Applicants wishing to close prior to obtaining required
commission permits will be required to present documentation that the required
permits are expected to be issued.
(e)
Loan closing for phased construction. The executive administrator
may determine it appropriate to close only a portion of a loan for a phased
construction project unless the applicant can demonstrate the need for phased
construction and that closing the portion of the loan desired by the applicant
is necessary to expedite construction.
(f)
Closing requirements. An applicant shall be required to
comply with the following closing requirements:
(1)
all loans shall be closed in book-entry-only form;
(2)
the applicant shall use a paying agent/registrar that
is a Depository Trust Company (DTC) participant;
(3)
the applicant shall be responsible for paying all
DTC closing fees assessed to the applicant by the Board's custodian bank
directly to the Board's custodian bank; and
(4)
the applicant shall provide evidence to the Board
that one fully registered bond has been sent to the DTC or to the applicant's
paying agent/registrar prior to closing.
§371.72. Release of Funds.
(a)
Release of Funds for Planning, Design and Permits. Prior
to the release of funds for planning, design, and permits, the applicant
shall submit for approval to the executive administrator the following documents:
(1)
a statement as to sufficiency of funds to complete the
activity;
(2)
certified copies of each contract under which revenues
for repayment of the applicant's debt will accrue;
(3)
executed consultant contracts relating to services
provided for planning, design, and/or permits; and
(4)
other such instruments or documents as the board or
executive administrator may require.
(b)
Pre-design Funding. The funds needed for the total estimated
cost of the planning and design costs if the DWSRF Engineering Feasibility
Report required under §371.36 of this title has been approved, the cost
of issuance associated with the loan, and any associated capitalized interest
will be released to the loan recipient and the remaining funds will be escrowed
to the escrow agent bank or to the trust agent until all applicable requirements
in subsections (a) and (c) of this section and §371.38 of this title
(relating to Pre-Design Funding Option) have been met.
(c)
Release of funds for building purposes. Prior to the release
of funds for building purposes, the applicant shall submit for approval to
the executive administrator the following documents:
(1)
a tabulation of all bids received and an explanation for
any rejected bids or otherwise disqualified bidders;
(2)
two executed original copies of each construction
contract the effectiveness and validity of which is contingent upon the receipt
of board funds;
(3)
evidence that the necessary acquisitions of land,
leases, easements and rights-of-way have been completed or that the applicant
has the legal authority necessary to complete the acquisitions;
(4)
a statement as to sufficiency of funds to complete
the project;
(5)
certified copies of each contract under which revenues
to the project will accrue;
(6)
other such instruments or documents as the board or
executive administrator may require.
(d)
Release of funds for projects constructed through one or
more construction contracts. For projects constructed through one or more
construction contracts, the executive administrator may approve the release
of funds for all or a portion of the estimated project cost, provided all
requirements of subsection (c) of this section have been met for at least
one of the construction contracts.
(e)
Escrow of funds. The executive administrator may require
the escrow of an amount of project funding related to contracts which have
not met the requirements of subsection (c) of this section at the time of
loan closing.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's authority to adopt.
Issued in Austin, Texas, on January 3, 1996.
TRD-9700135
Craig D. Pedersen
Executive Administrator
Texas Water Development Board
Earliest possible date of adoption: February 14, 1997
For further information, please call: (512) 463-7981
Program Requirements
Application for Assistance
Board Action on Application
Engineering Design
Prerequisites to Release of Funds
Building Phase