Part 10. TEXAS WATER DEVELOPMENT BOARD

Chapter 357. REGIONAL WATER PLANNING GUIDELINES

31 TAC §§357.5, 357.10, 357.12

The Texas Water Development Board (the board) proposes amendments to §§357.5, 357.10, and 357.12 concerning the Regional Water Planning Guidelines. The amendments are proposed to conform more closely with the statutory provisions relating to a regional water plan's evaluation of emergency transfers and the regional water planning group's required notice and hearings in the regional water planning process.

Amendments to §357.5 would more closely track the statutory language regarding regional water planning groups' consideration of emergency transfers of water. The section currently mandates that regional water planning groups include recommendations for emergency transfers of surface water, including determining portions of rights that may be transferred for emergency municipal use. The proposed amendment would allow the regional water planning groups greater discretion in whether to make recommendations for emergency transfers. The proposed change makes the rule more consistent with statute, and provides greater discretion to tailor planning on a regional basis, as contemplated by the passage of Texas Water Code §16.053.

Amendments to §357.10 are proposed to clarify when the regional water planning group will address public comment, and make the provisions consistent with statutory requirements. Section 16.053(h)(3)-(5), Texas Water Code, establishes a procedure where the regional water planning groups are to conduct a public hearing and receive comments on an initially prepared regional water plan, submit the plan to the board for its comments, and then consider the board's and public's comments before adoption of its regional water plan. As currently drafted, the board's rules, in §357.10(b), require the regional water planning groups to address written comments before submittal of the initially prepared regional water plan to the board. The proposed amendments to §357.10(b) conform the rule to the statute by requiring the public comments to be addressed in the adopted regional water plan, not in the initially prepared regional water plan. The current requirement to address public comments at a stage earlier than required by statute would negatively impact the ability of the regional water planning groups to meet deadlines imposed by board rule and by statute for submittal of their adopted regional water plans to the board. The proposed amendments provide for full consideration of public comments while allowing the groups to meet deadlines for submittal of the plan to the board. In addition, proposed amendments to the subsection require the regional water planning group to address oral as well as written comments received at the public hearing on the regional water plan and written comments received within established deadlines. This amendment would assure that all public comments are evaluated and addressed by the regional water planning groups, thereby assuring that the public participation goals of Texas Water Code §16.053(h)(2) are met.

Amendments to §357.12 clarify provisions relating to notice in the regional water planning process. Amendments to §357.12(a)(4) clarify that a public hearing on amendments to a regional water plan is required only to amendments to an adopted regional water plan, including amendments required by the board's resolution of interregional conflicts. As currently drafted, the provision would require a hearing before adopting a regional water plan that makes any changes to the initially prepared plan. The existing rule requirement imposes notice requirements in excess of those imposed by statute, and would make the regional water planning process unduly cumbersome.

Proposed amendments to §357.12(a)(6)(D) clarify information that must be placed in notices regarding public hearings. Specifically, it requires the regional water planning group to consider both written and oral comments made at public hearings held on the initially prepared plan and on amendments to adopted regional plans. It also requires that the regional water planning group specify the date by which written comments shall be submitted, which will be no earlier than the date of the required public hearings. The amendments will assure that the public can submit timely comments while allowing the regional water planning groups to establish a definite deadline by which comments may be received, thereby allowing the group to provide a workable structure to its planning process. The minimum deadline of the public hearing will assure that the public has 30-days to evaluate and make comments on these plans, a timeframe consistent with notice requirements in §16.053, Texas Water Code. This deadline also is consistent with the public's timeframe to comment on rules adopted by state agencies.

Ms. Pam Gulley, Director of Accounting and Finance, has determined that for the first five-year period these sections are in effect there will be no fiscal implications on state and local government as a result of enforcement and administration of the sections.

Ms. Gulley has also determined that for the first five years the sections as proposed are in effect the public benefit anticipated as a result of enforcing the sections will be to provide clarification of the existing provisions regarding the regional water planning group's responsibility and to conform the requirements more closely to statute. Ms. Gulley has determined there will be no economic costs to small businesses or individuals required to comply with the sections as proposed.

Comments on the proposed amendments will be accepted for 30 days following publication and may be submitted to Suzanne Schwartz, (512) 463-7981, Texas Water Development Board, P.O. Box 13231, Austin, Texas, 78711-3231.

The amendments are proposed under the authority granted in Texas Water Code, §6.101, which provides the board with the authority to adopt rules necessary to carry out its powers and duties under the Texas Water Code and laws of Texas, and under the authority of Texas Water Code, §16.053, which requires the board to develop rules to provide procedures for adoption of regional water plans by regional water planning groups and approval of regional water plans by the board, and to govern procedures to be followed in carry out the responsibilities under §16.053, Water Code.

The statutory provision affected by the amendments is Texas Water Code, §16.053.

§357.5.Guidelines for Development of Regional Water Plans.

(a)-(h)

(No change.)

(i)

Emergency transfers. Regional water plans shall consider [ include recommendations for ] emergency transfers of surface water including a determination of the part of each water right for non-municipal use in the regional water planning area that may be transferred without causing unreasonable damage to the property of the non-municipal water rights holder in accordance with Texas Water Code, §11.139.

(j)-(m)

(No change.)

§357.10.Format of Information To Be Presented in Regional Water Plans.

(a)

Initially prepared and adopted regional water plans or amendments to approved regional water plans shall include the following:

(1)

technical report prepared in accordance with this chapter; and

(2)

executive summary that documents the key regional water plan findings and recommendations . [ ; and ]

(b)

In addition to the requirements in subsection (a) of this section, adopted regional water plans and amendments adopted thereto shall include

[ (3) ]

summaries of all written and oral comments received at the public hearing required by §357.12(a)(3) and (4) of this title, and all written comments received within the timeframe specified by the regional water planning group under §357.12(a)(6)(D) of this title, [ concerning the regional water plan ] with a response by the regional water planning group explaining how the plan was revised or why changes were not warranted.

(c)

[ (b) ] The regional water planning group will transfer copies of all data and reports generated by the planning process and used in developing the regional water plan to the executive administrator. To the maximum extent possible, data shall be transferred in digital form according to specifications provided by the executive administrator. One copy of all reports prepared by the regional water planning group shall be provided in digital format according to specifications provided by the executive administrator. All digital mapping shall use a geographic information system according to specifications provided by the executive administrator. The executive administrator shall seek the input from the Texas Geographic Information Council regarding specifications mentioned in this subsection.

§357.12.Notice and Public Participation .

(a)

Regional water planning groups and any subregional water planning groups shall provide for public participation which shall include the following:

(1)-(3)

(No change.)

(4)

a public hearing before adoption of an amendment to an adopted regional water plan, including amendments required by the board's resolution of interregional conflicts, to be held in a central location.

(5)

(No change.)

(6)

notice of the public meetings and public hearings shall include:

(A)-(C)

(No change.)

(D)

information that the regional water planning group will accept written and oral comments at the hearings required by paragraphs (3) and (4) of this subsection, and information on how the public may submit written comments separate from such hearings. The regional water planning group shall specify a deadline for submission of public written comments of not earlier than hearings required by paragraphs (3) and (4) of this subsection.

(b)-(c)

(No change.)

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on April 20, 2000.

TRD-200002830

Suzanne Schwartz

General Counsel

Texas Water Development Board

Proposed date of adoption: June 21, 2000

For further information, please call: (512) 463-7981

Chapter 517. FINANCIAL ASSISTANCE

Subchapter B. COST-SHARE ASSISTANCE FOR BRUSH CONTROL

31 TAC §§517.23, 517.27, 517.28, 517.29

The Texas State Soil and Water Conservation Boards proposes amendments to 31 TAC §§517.23, 517.27, 517.28 and 517.29 to correct deficiencies discovered during implementation of the brush control cost share program.

The proposed amendments removes language from §§517.23, 517.27, 517.28 and 517.29 regarding maintenance agreements and maintenance of brush control practices. Language is added to §§517.28 and 517.29, which replaces maintenance of brush control practices with management of the treated area.

The proposed amendments also clarifies the definition of a performance agreement in §517.23.

These changes are needed to allow necessary flexibility in the brush control cost share program.

James Moore, Assistant Executive Director, Conservation Programs, has determined that for the first five-year period there will be no fiscal implications for state or local government as a result of administering the sections.

James Moore, Assistant Executive Director, Conservation Programs, has determined that for each year of the first five years the sections are in effect, the public benefit anticipated as a result of administering the sections will be more effective implementation of the brush control. There is no anticipated cost to small businesses or individuals resulting from these proposed amendments.

Comments on the proposal may be submitted in writing to Robert G. Buckley, Executive Director, Texas State Soil and Water Conservation Board, P. O. Box 658, Temple, TX 76503, 254-773-2250.

The amendments are proposed under the Agriculture Code Title 7, Chapter 203, §203.012 which authorizes the State Soil and Water Conservation Board to adopt rules that are necessary to carry out the program and §203.011 which provides authorization for the Board to administer the brush control program.

No other code, statute, or article is affected by these proposed amendments.

§517.23.Definitions.

(1)-(13)

(No change.)

[ (14)

Maintenance agreement--A written agreement between the eligible person and the SWCD wherein the eligible person(s) agrees, as a condition of the receipt of state cost share funds, to implement and maintain all cost shared measure(s) in the approved resource management plan consistent with its implementation schedule. The maintenance agreement shall remain in effect on cost-shared practices for the expected life of the practice as established by the State Board. ]

(14)

[ (15) ] Obligated funds--Monies from an SWCD's allocated funds that have been committed to an applicant after final approval of the application by the SWCD.

(15)

[ (16) ] Performance agreement--A written agreement between the eligible person and the SWCD wherein the eligible person receiving the benefit of cost share assistance agrees , as a condition for receipt of cost share assistance, to perform the brush control [ for which allocated funds are being paid ] in accordance with standards established by Texas State Soil and Water Conservation Board and the terms of the cost share agreement.

(16)

[ (17) ] Priority system--The system devised by the SWCD, under guidelines of the state board, for ranking brush control plans and for facilitating the disbursement of allocated funds in line with the SWCD's priorities.

(17)

[ (18) ] Program year--The period from September 1 to August 31.

(18)

[ (19) ] Resource management plan--A site specific plan for implementation of soil and water conservation land improvement measures. It includes a record of the eligible person's decisions made during planning and the resource information needed for implementation and maintenance of the plan that has been reviewed and approved by the SWCD.

(19)

[ (20) ] Soil and water conservation district, herein referred to as SWCD--A government subdivision of this state and a public body corporate and politic, organized pursuant to the Agriculture Code of Texas, Chapter 201.

(20)

[ (21) ] State Board--The Texas State Soil and Water Conservation Board organized pursuant to the provisions of the Agriculture Code of Texas, Chapter 201.

§517.27.Cost-share assistance processing procedures.

(a)

Responsibility of applicants. Applicants for cost-share assistance for brush control:

(1)

shall complete a district cooperative agreement if the applicant is not already a district cooperator;

(2)

where an applicant does not have an approved resource management plan and has not determined the anticipated total cost of the proposed measure(s), he/she shall obtain a resource management plan approved by the local SWCD;

(3)

shall complete and submit an application for cost share based on the approved resource management plan to the SWCD;

(4)

after being notified of approval and obligation of funds by the district, shall request technical assistance through the district to design and lay out the approved brush control or request approval of alternate sources of technical assistance;

(5)

shall secure any approved contractor(s) needed and all contractual or other agreements necessary to perform the approved brush control. Cost-share will not be allowed for work begun before the application is approved;

(6)

shall complete and sign a performance [ and maintenance ] agreement [ agreements ] and any amendments to the [ those ] agreements;

(7)

shall supply the documents necessary to verify completion of the approved brush control along with copies of receipts for work to be cost shared.

(b)

Responsibilities of SWCDs. SWCDs shall:

(1)

approve resource management plans;

(2)

establish the period(s) of time for accepting applications and announce the cost-share program locally;

(3)

accept cost-share applications at the SWCD's office;

(4)

determine eligibility of lands and persons for cost-share assistance. If an applicant's land is in more than one SWCD, the respective SWCD boards of directors will review the application and agree to oversee all works, administrate all contracts and obligate all funds from one SWCD or prorate the funding between SWCDs;

(5)

give initial approval to those applications that meet the eligibility requirements;

(6)

evaluate the initially approved applications under the SWCD's priority system and give final approval to the high priority applications that can be funded by the SWCD's allocated funds;

(7)

obligate funds for the approved brush control that can be funded and notify the applicants that his/her application has been approved for cost-share and to proceed with implementation as outlined in the applicant's plan;

(8)

determine compliance with standards and specifications and certify completed brush control that meet standards.

(c)

Amended applications for allocated funds.

(1)

In the event that an adjustment to the estimated cost of brush control is necessitated by the final design, the applicant shall either agree to assume the additional cost or complete and submit an amendment to his/her application for cost share to the SWCD for approval or denial by the SWCD.

(2)

The SWCD may elect to adjust the amount of funds obligated for brush control, provided funds are available, or to request additional funds from the State Board.

(3)

In the event additional funds are not available, the brush control may be redesigned, if possible, to a level commensurate with available funds, provided the redesign still meets standards established by the State Board; or the applicant can agree to assume full financial responsibility for the portion of the cost of brush control in excess of the amount authorized.

(d)

Performance agreement. As a condition for receipt of cost-share assistance for brush control, the eligible person receiving the benefit of such assistance shall agree to perform the brush control in accordance with standards established by Texas State Soil and Water Conservation Board and the terms of the cost share agreement . Completion of the performance agreement and the signature of the eligible person is required prior to payment.

[ (e)

Maintenance agreement--As a condition for receipt of cost-share assistance, the person(s) receiving the assistance shall agree to implement and maintain all cost shared measures in the approved resource management plan consistent with its implementation schedule. The maintenance agreement shall remain in effect on cost-shared practices for the expected life of the cost-shared practice(s) as established by the State Board. Completion of the maintenance agreement and signature of the eligible person is required prior to payment. ]

(e)

[ (f) ] Payment to recipients.

(1)

The SWCD shall determine eligibility of the applicant to receive payment of cost-share assistance, and provide certification to the state board that measure(s) have been installed consistent with established standards.

(2)

The state board shall cause payment for cost share assistance to be issued to the applicant [ issue warrants for payment of cost share assistance ].

(3)

Partial payment can be requested for identifiable units or components of approved brush control methods as they are completed, provided required management can be applied.

(f)

[ (g) ] Applications held in abeyance because of lack of funds. In those cases where funds are not available, the applications will be held by the SWCD until allocated funds become available or until the end of the program year. When additional funds are received, the SWCD will obligate those funds. The SWCD may shift all unfunded applications held in abeyance because of lack of funds that are on hand at the end of a program to the new program year or require all new applications as it deems appropriate.

(g)

[ (h) ] Applications denied for reasons other than lack of funds. Applications for funds which are denied by the SWCD directors for other than lack of funds shall be retained in the records of the SWCD in accordance with the SWCD's established record retention policy. Written notification of the denial shall be provided to the applicant along with the reason(s) that the application was denied.

(h)

[ (i) ] Applications withdrawn. An application may be withdrawn by the applicant at any time prior to receipt of cost-share assistance by notifying the SWCD in writing that withdrawal is desired. Applications withdrawn by the applicant shall be retained in the records of the district in accordance with the SWCD's established record retention policy.

(i)

[ (j) ] Appeals.

(1)

An applicant may appeal the SWCD decisions relative to his/her application for allocated funds.

(2)

The applicant shall make any appeal in writing to the SWCD which received his/her application for allocated funds and shall set forth the basis for the appeal.

(3)

The SWCD shall have 60 days in which to make a decision and notify the applicant in writing.

(4)

The decision of the SWCD may be appealed by the applicant to the state board.

(5)

All appeals made to the state board shall be made in writing and shall set forth the basis for the appeal.

(6)

All state board decisions shall be final.

Management of areas treated for [ Maintenance of ] brush control.

(a)

Requirements for follow up treatment for [ maintenance of ] brush control applied using cost-share funds will be included in the application for cost share with management recommendations outlined in the eligible person's resource management plan . These will be [ and ] reviewed with the eligible person at the time of application for cost-share.

(b)

A properly executed [ maintenance ] agreement shall be signed by the successful applicant prior to receipt of payment of cost-share assistance [ from the SWCD ] for brush control completed.

(c)

The SWCD may require refund of any or all of the cost-share paid to an eligible person when acres where [ the applied ] brush control was applied has not been managed [ maintained ] in compliance with applicable standards and specifications for the practice and in accordance with the terms of the cost share agreement during [ it's ] the expected life as agreed to by the eligible person.

(d)

In cases of hardship, death of the participant, or at the time of transfer of ownership of land where brush control has been applied using cost-share assistance and the expected life assigned the practice has not expired, the participant, heir(s), or buyer(s) respectively, must agree to properly manage [ maintain ] the treated area [ practice ] or the participant, heir(s) or the buyer by agreement with seller must refund all or a portion of the cost-share funds received for the practice as determined by the SWCD. The State Board on a case by case basis in consultation with the soil and water conservation district may grant a waiver to this requirement.

§517.29.Determining status of brush control during transfer of land ownership.

(a)

A seller of agricultural land with respect to which a performance [ maintenance ] agreement is in effect may request the SWCD to inspect the practice. If the practice has been properly managed [ maintained ] the SWCD shall issue a written statement that the seller has satisfactorily managed [ maintained ] the treated area [ permanent practice ] as of the date of the statement.

(b)

The buyer of lands covered by a performance [ maintenance ] agreement may also request that the SWCD inspect the lands to determine whether the treated area [ brush control ] has been properly managed [ maintained ] as of the date of the inspection. If so, the SWCD will provide the buyer with a statement specifying the extent of noncompliance as of the date of the statement.

(c)

The seller and the buyer, if known, shall be given notice of the time of inspection so that they may be present during the inspection to express their views as to compliance.

This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.

Filed with the Office of the Secretary of State, on April 19, 2000.

TRD-200002792

Robert G. Buckley

Executive Director

Texas State Soil and Water Conservation Board

Earliest possible date of adoption: June 4, 2000

For further information, please call: (254) 773-2250