Part 10.
TEXAS WATER DEVELOPMENT BOARD
Chapter 354.
MEMORANDA OF UNDERSTANDING
The Texas Water Development Board (board) adopts the repeal of existing §354.4
and new §354.4 concerning a memorandum of understanding between the board
and the Office of Rural Community Affairs. Section 354.4 is adopted with changes
to correct typographical errors to the proposed text as published in the November
29, 2002 issue of the
Texas Register
(27 TexReg
11054).
New §354.4 is adopted to replace existing §354.4 of this title
(relating to Memorandum of Understanding between Texas Water Development Board
and the Texas Department of Housing and Community Affairs) which is being
repealed in order to adopt this memorandum of understanding as part of Chapter
354. New §354.4 establishes a memorandum of understanding between the
board and the Office of Rural Community Affairs (ORCA) and details the responsibility
of each agency regarding the coordination of funds out of the Economically
Distressed Areas Program, administered by the board, and the Colonia Fund,
administered by the ORCA, in order to maximize delivery of the funds and minimize
administrative delay in the expenditure of these funds. New §354.4 differs
from the old version in that the responsibility of the administration of the
Colonia Fund has been shifted from the Texas Department of Housing and Community
Affairs to the ORCA and therefore the coordination of that fund with the Economically
Distressed Areas Program can only be accomplished with ORCA. It has been updated
to delete the requirements of agencies to develop and provide information
to the Senate Border Affairs Committee regarding the relative costs of providing
water and wastewater services and the costs of relocating the residents of
the area proposed to be served by the board financial assistance. The requirement
to develop this information was removed because the legislature is no longer
requesting the information. It has also removed the requirement of developing
a joint report to the Legislative Budget Board because it has already been
submitted.
There were no comments received on the proposed repeal and new section.
31 TAC §354.4
The repeal is adopted under the authority of the Texas Water
Code, §6.101 which provides the Texas Water Development Board with the
authority to adopt rules necessary to carry out the powers and duties in the
Texas Water Code and other laws of the State and §6.104 which authorizes
the board to enter into memorandum of understanding with other state agencies.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 22, 2003.
TRD-200300455
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: February 11, 2003
Proposal publication date: November 29, 2002
For further information, please call: (512) 463-7981
31 TAC §354.4
The new section is adopted under the authority of the Texas
Water Code, §6.101 which provides the Texas Water Development Board with
the authority to adopt rules necessary to carry out the powers and duties
in the Texas Water Code and other laws of the State and §6.104 which
authorizes the board to enter into memorandum of understanding with other
state agencies.
§354.4.Memorandum of Understanding Between Texas Water Development Board and The Office of Rural Community Affairs.
(a)
Recitals.
(1)
Pursuant to the 1995 Appropriations Act of the Texas Legislature,
and continued in the 1997 and 1999 Appropriations Act of the Texas Legislature,
the Texas Water Development Board (TWDB) and the Texas Department of Housing
and Community Affairs (TDHCA) were required to develop a Memorandum of Understanding
(Memorandum) to detail the responsibility of each agency regarding the coordination
of funds of the Economically Distressed Areas Program (EDAP), administered
by the TWDB, and the Colonia Fund of the Community Development Block Grant
Program, administered by the TDHCA, so as to maximize delivery of the funds
and minimize administrative delay in their expenditure. The TWDB and the TDHCA
executed a Memorandum and performed pursuant to the terms of that Memorandum.
(2)
Pursuant to the 2001 General Appropriations Act of the
77th Texas Legislature, the TWDB is required to continue the coordination
with the TDHCA that commenced under the Memorandum with TDHCA. Pursuant to
House Bill 7 (H.B. 7) of the 77th Texas Legislature, the Office of Rural Community
Affairs (ORCA) was created and the functions and obligations of TDHCA related
to the Colonia Fund were transferred to ORCA including the requirement to
execute a Memorandum of Understanding to detail the responsibility of each
agency regarding the coordination of funds out of the EDAP, administered by
the TWDB, and the Colonia Fund of the Community Development Block Grant Program,
now administered by ORCA.
(b)
Parties. This Memorandum is made and entered into between
the ORCA, an agency of the State of Texas, and the TWDB, an agency of the
State of Texas.
(c)
Purpose. The purpose of this Memorandum is to assure that
none of the funds appropriated under the Colonia Fund are expended in a manner
that aids the proliferation of colonias or are otherwise used in a manner
inconsistent with the intent of the EDAP operated by the TWDB, so as to maximize
delivery of the funds and minimize administrative delay in their expenditure.
(d)
Period of performance. This Memorandum shall begin on December
1, 2002, and shall terminate on August 31, 2003. This Memorandum may be extended
for additional period of time to ensure compliance with TDHCA Rider No. 4,
the responsibility for which was assigned to ORCA by H.B. 7, and TWDB Rider
No. 7 to the General Appropriations Act, 77th Legislature for the 2002-2003
Biennium.
(e)
Performance. Each party to this Memorandum shall coordinate
with the other in delivering water and sewer service lines, hook-ups, and
plumbing improvements to residents of selected colonias in order to connect
those residents' housing units to EDAP-funded water and sewer systems.
(1)
ORCA responsibilities. The ORCA shall be responsible for
the following functions:
(A)
develop an application process for projects submitted by
eligible units of local government;
(B)
assist units of general local government in preparing an
application to the Colonia Fund;
(C)
determine whether projects meet federal requirements;
(D)
select projects to receive funding in conjunction with
the TWDB;
(E)
make Colonia Fund grant awards for selected projects on
an as-needed basis;
(F)
prepare and execute contracts with units of general local
government (Contractor localities);
(G)
provide oversight and guidance to Contractor localities
regarding applicable federal and state laws and program regulations (environmental,
labor, acquisition of real property, relocation, procurement, financial management,
fair housing, equal employment opportunity, etc.);
(H)
provide on-site technical assistance if necessary to ensure
that funds are efficiently and effectively used to accomplish the activities
for which they were intended;
(I)
review, approve, process, and honor valid reimbursement
requests from Contractor localities;
(J)
monitor each project prior to contract completion to ensure
compliance with applicable federal and state laws and program regulations;
(K)
consult with the TWDB regarding specific projects on an
as-needed basis; and
(L)
notify communities on list provided by the TWDB of the
availability of funds.
(2)
TWDB responsibilities. The TWDB shall be responsible for
the following functions:
(A)
provide the ORCA with descriptions of and schedules for
EDAP-funded projects that need Colonia Fund assistance to provide connections
and plumbing improvements at least six (6) weeks before such assistance would
be required;
(B)
assist eligible units of general local government in preparing
an application for assistance through the ORCA's Colonia Fund;
(C)
select projects to receive funding in conjunction with
the ORCA; and
(D)
provide assistance with technical project-related concerns
brought forward by Contractor localities or the ORCA during the course of
the project.
(f)
Limitations. Eligible applicants shall be those counties
eligible under both ORCA's Colonia Fund and TWDB's EDAP. Non-entitlement cities
located within eligible counties are also eligible applicants. Eligible projects
shall be located in unincorporated colonias identified by the TWDB and in
eligible cities that annexed the colonia where improvements are to be made
within five years after the effective date of the annexation, or are in the
process of annexing the colonia where improvements are to be made. Eligibility
shall be denied to any project in a county that has not adopted or is not
enforcing the Model Subdivision Rules established pursuant to §16.343
of the Texas Water Code.
(g)
Reporting requirements. Each party to this Memorandum shall
submit, on or before the fifteenth day of the month following the end of the
calendar quarter, to the other party a report of its activities and expenditures
during the previous calendar quarter. The first such report shall be due January
15, 2003.
(h)
Termination. This Memorandum shall terminate upon ten (10)
days written notice by either party to the other party in this contract.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 22, 2003.
TRD-200300456
Suzanne Schwartz
General Counsel
Texas Water Development Board
Effective date: February 11, 2003
Proposal publication date: November 29, 2002
For further information, please call: (512) 463-7981
Chapter 517.
FINANCIAL ASSISTANCE
Subchapter B. COST-SHARE ASSISTANCE FOR BRUSH CONTROL
The Texas State Soil and Water Conservation Board (TSSWCB) adopts
the repeal of 31 TAC §§517.22-517.30 and simultaneously adopts new
31 TAC §§517.22-517.37 concerning cost-share assistance for brush
control. The existing rules are being repealed and new rules adopted due to
the magnitude of rule changes resulting from Internal Audit Recommendations
and comments received regarding proposed text published in the July 5, 2002
issue of the
Texas Register
(27 TexReg 5943).
These changes are needed to achieve consistency between current policy, state
law, the rules, and the State Brush Control Plan. The new §§517.22-517.37
is adopted with changes to the proposed text as published in the December
6, 2002 issue of the
Texas Register
(27 TexReg
11485).
The TSSWCB received formal written comments from the Foard County Soil
and Water Conservation District, Texas Parks and Wildlife Department, Texas
Department of Agriculture and Anderson-Houston Soil and Water Conservation
District. As a result of the comments received, clarifying changes have been
made to §§517.23(5), 517.25(a), 517.24(c) and 517.37(c) of the proposed
rule since publication.
The Foard County SWCD opposed a 100% allocation to critical areas. However, §203.155(1)
of the Agriculture Code states that cost-sharing is only available for projects
that are implemented in critical areas as designated by the TSSWCB. As a result,
no changes were made.
The TPWD recommended adding "TPWD will provide technical assistance to
the critical area working group in the development and implementation of the
brush control plans." to §517.37(c). The TSSWCB concurs with this clarification
of the role of the TPWD and added the recommended wording.
The TPWD recommended adding the word "native" to §517.27(c)(5) so
that it reads "will allow the revegetation of the area after the brush is
removed with native plants that are beneficial to livestock and wildlife".
The TSSWCB agrees that revegetation utilizing native plants should be encouraged,
but not mandated. As a result, no change was made to §517.27(c)(5).
The TDA recommended clarifying the definition of brush control in §517.23(5)
by replacing "brush" with "noxious brush such as mesquite, prickly pear, salt
cedar, or other phreatophytes". The TSSWCB concurs with this clarification
and added the recommended wording with the following change. "Prickly pear"
was replaced with "juniper" in §517.23(5). Relative to juniper, prickly
pear is not as significant of a water user and as such is not currently a
species targeted for brush control.
The TDA recommended changing §517.25(a) to state, "Prior to designating
a critical area, the State Board, in cooperation with affected SWCDs, other
agencies, universities, and appropriate local interests, may study the feasibility
of utilizing brush control to conserve water." The TSSWCB concurs with this
change and added the recommended wording.
The TDA recommended that notice in the
Texas Register
be required in §517.24(c) regarding the public hearing to consider
the Brush Control Plan. The TSSWCB concurs with this change and added the
recommended requirement.
The TDA recommended that §517.37(c) be expanded to include notification
of working group meetings in the
Texas Register
and/or
to other agricultural interests in the affected area. The TSSWCB concurs that
other agricultural interests in the affected area should be provided notification
of critical area working group meetings and added this requirement to §517.37(c).
The Anderson-Houston SWCD is in concurrence with the Brush Control Rules as
amended.
31 TAC §§517.22 - 517.30
The rule is adopted under Chapter 201.020 Agriculture Code
which provides the Texas State Soil and Water Conservation Board with the
authority to adopt rules as necessary for the performance of its functions
under the Agriculture Code.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 24, 2003.
TRD-200300496
James M. Moore
Executive Director
Texas State Soil and Water Conservation Board
Effective date: February 13, 2003
Proposal publication date: December 6, 2002
For further information, please call: (254) 773-2250
31 TAC §§517.22 - 517.37
The rule is adopted under Chapter 201.020 Agriculture Code
which provides the Texas State Soil and Water Conservation Board with the
authority to adopt rules as necessary for the performance of its functions
under the Agriculture Code.
§517.22.Purpose.
The purpose of this program is to provide the needed incentive to landowners
or operators for the implementation of brush control consistent with the purpose
of conserving water.
§517.23.Definitions.
For the purposes of these rules the following definitions shall apply.
(1)
Allocated funds--Funds budgeted through the State Board
to a critical area for cost-share assistance.
(2)
Applicant--An eligible person who applies for cost-share
assistance.
(3)
Available funds--Allocated funds that have not been obligated.
(4)
Average costs--The constructed cost, which is based on
actual costs and current cost estimates, considered necessary to carry out
a conservation practice.
(5)
Brush control--The selective control, removal, or reduction
of noxious brush such as mesquite, juniper, salt cedar, or other phreatophytes
that, as determined by the State Board, consumes water to a degree that is
detrimental to water conservation; and the revegetation of land on which this
brush has been controlled.
(6)
Brush control contract--A legally binding 10-year agreement
between the applicant, Soil and Water Conservation District, and Texas State
Soil and Water Conservation Board whereby the applicant agrees to implement
all brush control practice(s) for which cost-share is to be provided in accordance
with standards established by the Texas State Soil and Water Conservation
Board. Only practice(s) that the Texas State Soil and Water Conservation Board
has approved and are included in an approved brush control plan are eligible
for inclusion in the brush control contract.
(7)
Brush control plan--A site-specific plan for implementation
of brush control, sound range management practices, and other 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 Soil and Water Conservation District.
(8)
Cost-share assistance--An award of money made to an eligible
person for brush control pursuant to the purpose(s) for which the funds were
appropriated.
(9)
Cost-share rate--The percent of the cost of brush control
to be awarded an eligible person based on actual cost not to exceed average
cost.
(10)
Critical area--An area of critical need designated by
the Texas State Soil and Water Conservation Board in the State Brush Control
Plan according to the criteria established in §517.25.
(11)
Critical area working group--The working group established
in each critical area to carry out the roles and responsibilities listed in §517.28(c).
Membership is made up of Soil and Water Conservation District directors from
each Soil and Water Conservation District in a critical area.
(12)
Eligible land--Those lands within a designated critical
area that are eligible for application of brush control using cost-share assistance.
(13)
Eligible person--Any individual, partnership, administrator
for a trust or estate, family-owned corporation, or other legal entity who
as an owner, lessee, tenant, or sharecropper participates in an agricultural
or wildlife operation within a critical area and is a cooperator with the
local Soil and Water Conservation District shall be eligible for cost-share
assistance
(14)
Field Office Technical Guide, herein referred to as FOTG--The
official Natural Resources Conservation Service guidelines criteria, and standards
for planning and applying conservation practices, management measures, and
works of improvement that have the purpose of solving or reducing the severity
of natural resource use problems or taking advantage of resource opportunities.
(15)
Natural Resources Conservation Service, herein referred
to as NRCS--An agency of the United States Department of Agriculture.
(16)
Operator--Any person(s), firm or corporation with a contractual
arrangement with the owner of the land that grants operational control of
an agricultural enterprise.
(17)
Obligated funds--Monies from a critical area's allocated
funds that have been committed to an applicant after final approval of the
brush control contract by the Soil and Water Conservation District and Texas
State Soil and Water Conservation Board.
(18)
Performance agreement--A component of the brush control
contract whereby the eligible person receiving the benefit of cost-share assistance
provides written agreement to the Soil and Water Conservation District to
perform brush control in accordance with standards established by the Texas
State Soil and Water Conservation Board and the terms of the brush control
contract.
(19)
Priority system--The system devised collectively by the
critical area working group, under guidelines of the State Board, for ranking
brush control applications and for facilitating the disbursement of allocated
funds in line with the critical area's priorities.
(20)
Program year--The period from September 1 through August
31.
(21)
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.
(22)
State Board--The Texas State Soil and Water Conservation
Board organized pursuant to the provisions of the Agriculture Code of Texas,
Chapter 201.
(23)
Texas Parks and Wildlife Department, herein referred to
as TPWD--The government agency of this state organized pursuant to the Parks
and Wildlife Code of Texas, Title 2, Chapter 11.
(24)
Water Conservation--The process of reducing water consumption
and/or preventing future increases in water consumption. As related to the
Brush Control Program, the process of reducing water consuming brush and subsequently,
the enhancement of available water resources.
§517.24.State Brush Control Plan
(a)
The State Board shall prepare and adopt a state brush control
plan. The State Board shall review and may amend the plan at least every two
years to take into consideration changed conditions.
(b)
The State Brush Control Plan shall:
(1)
include a comprehensive strategy for managing brush in
areas of the state where brush is contributing to a substantial water conservation
problem and
(2)
designate areas of critical need in the state in which
to implement the brush control program considering the criteria established
in §517.25.
(c)
Before the State Board adopts the plan, the State Board
shall call and hold a public hearing to consider a proposed plan.
(1)
In addition to providing notice in the Texas Register,
the State Board shall mail written notice of the hearing to each SWCD in the
state not less than 30 days before the date the hearing is to be held. The
notice must include the date and place for holding the hearing and must state
the purpose for holding the hearing.
(2)
At the hearing, representatives of a SWCD and any other
person may appear and present testimony including information and suggestions
for any changes in the proposed plan.
(3)
After the conclusion of the hearing, the State Board shall
consider the testimony including the information and suggestions made at the
hearing and, after making any changes in the proposed plan that it finds necessary,
the State Board shall adopt the plan.
§517.25.Designation of Critical Areas
(a)
Prior to designating a critical area, the State Board,
in cooperation with affected SWCDs, other agencies, universities, and appropriate
local interests, may study the feasibility of utilizing brush control to conserve
water.
(b)
Feasibility Studies.
(1)
Feasibility studies shall, where appropriate, evaluate
brush type, density, and location; management methods; revegetation options;
geology and soils data; water needs or potential needs; hydrology; potential
water yield; wildlife concerns; economics; and landowner interest. The TPWD
shall be consulted when evaluating wildlife concerns.
(2)
Feasibility studies shall be conducted in watersheds in
the general brush control area as identified in the State Brush Control Plan
or where designated by the State Board.
(3)
Specific watersheds for studies will be determined by the
State Board in consultation with SWCDs, other agencies, and universities.
SWCDs may submit written requests to the State Board for feasibility studies.
(4)
The State Board shall consider water needs of the area
and potential for water yield when selecting watersheds for study.
(c)
In designating critical areas, the State Board shall consider:
(1)
the location of various brush infestations;
(2)
the type and severity of various brush infestations;
(3)
the various management methods that may be used to control
brush;
(4)
the severity of water conservation needs;
(5)
the cost effectiveness of utilizing brush control to conserve
water;
(6)
the potential water quality impacts;
(7)
the availability of funding; and
(8)
any other criteria that the State Board considers relevant
to assure that the brush control program can be most effectively, efficiently,
and economically implemented.
(d)
In designating critical areas, the State Board shall give
priority to areas with the most critical water conservation needs and in which
brush control and revegetation projects will be most likely to produce substantial
water conservation.
(e)
Request for designation as a critical area. SWCDs may submit
written requests to the State Board for designation of areas for which the
feasibility of brush control has been determined.
§517.26.Administration of Funds.
(a)
Project Development.
(1)
SWCDs or other agencies in cooperation with SWCDs may develop
project proposals within critical areas in accordance with criteria established
in the State Brush Control Plan.
(2)
Project proposals shall be submitted to the State Board
for its prioritization and approval.
(3)
The State Board may initiate project development in cooperation
with SWCDs.
(b)
Priority of Projects.
(1)
When prioritizing and approving projects, the State Board
shall consider criteria established in the State Brush Control Plan.
(2)
If the demand for funds under the cost-sharing program
is greater than funds available, the State Board may establish priorities
favoring the areas with the most critical water conservation needs and projects
that will be most likely to produce substantial water conservation.
(3)
The State Board shall give more favorable consideration
to a particular project if the participants agree to a lesser cost-share rate
than that established by the State Board.
(4)
The amount of land dedicated to the project that will produce
significant water conservation from the control of brush is a priority.
(c)
Allocation of funds. The State Board may allocate funds
only for projects in critical areas as designated by the State Board. Such
allocations may be adjusted throughout the year as available funds and critical
area needs and priorities change in order to achieve the most efficient use
of state funds.
(d)
Requests for allocations. Critical area working groups
may submit written requests for cost-share allocations to the State Board.
(e)
Approval of allocations. The State Board shall consider
and approve, reject, or adjust allocations giving consideration to relative
need for funding, workload and fund balances, as well as other information
deemed necessary by the State Board.
§517.27.Approval of Brush Control Methods
(a)
Cost sharing is available only for projects that use a
method of brush control approved by the State Board.
(b)
The State Board, in consultation with SWCDs, shall study
and must approve all methods used to control brush considering the overall
impact the project will have within critical areas.
(c)
The State Board may approve a method for cost-sharing if
the State Board finds that the proposed method:
(1)
has proven to be an effective and efficient method for
controlling brush;
(2)
is cost efficient;
(3)
will have a beneficial impact on wildlife habitat;
(4)
will conserve topsoil to prevent erosion or silting of
any river or stream; and/or
(5)
will allow the revegetation of the area after the brush
is removed with plants that are beneficial to livestock and wildlife.
(d)
Approved methods shall be designated in program guidance
established by the State Board.
(e)
Request for approval of brush control methods. Critical
area working groups, as established by §517.28(b), may submit written
requests to the State Board for approval of brush control methods for a critical
area.
§517.28.Powers and Duties of SWCDs
(a)
The State Board has delegated the responsibilities in this
section to the SWCDs in which all or part of a critical area is located.
(b)
Establishment and composition of critical area working
group.
(1)
In each critical area designated by the State Board, a
critical area working group shall be established, composed of SWCD directors
from each SWCD in which all or part of the critical area is located.
(2)
The State Board shall serve as the facilitator for the
critical area working group.
(3)
Agencies, universities, landowners and appropriate local
interests may serve in an advisory capacity to the critical area working group,
but shall not have voting privileges.
(4)
The critical area working group shall hold an organizational
meeting to:
(A)
establish final membership
(i)
SWCDs may elect to not participate by providing written
notification of their decision.
(ii)
In establishing the membership, each participating SWCD
shall have one vote.
(iii)
As approved by participating SWCDs within a critical
area, SWCDs may be allowed to have more than one SWCD director serve on the
critical area working group.
(iv)
Once final membership is established, each member shall
have one vote only.
(B)
establish operating procedures
(i)
The critical area working group shall elect a chairman.
(ii)
The critical area working group shall establish the quorum
necessary for decision-making. Only those members present shall be eligible
to vote. Voting by proxy shall not be allowed.
iii
The critical area working group may establish attendance
requirements and other necessary procedures.
(c)
The critical area working group shall:
(1)
designate, from the State Board approved list, those brush
control methods that will be eligible for cost-share in the critical areas;
(2)
establish maximum cost-share rates for critical area not
to exceed maximums set by the State Board in §517.29(d);
(3)
develop average cost annually for each practice on the
critical area's approved practice list not to exceed costs established by
the State Board;
(4)
establish annually the maximum amount of cost-share available
to each applicant not to exceed the maximum set by the State Board;
(5)
administer the cost-share program within the funds allocated
by the State Board;
(6)
establish, under guidelines of the State Board, the priority
system to be used for evaluation of applications;
(7)
establish the period(s) of time for accepting applications;
(8)
announce the cost-share program within the critical area;
(9)
establish the minimum amount of brush acreage that must
be enrolled within sub-basins of the critical area in order to qualify for
funding;
(10)
prioritize applications under the working group approved
priority system for the critical area; and
(11)
submit meeting minutes, membership, and established operating
procedures to the State Board.
(d)
Each SWCD within a critical area shall:
(1)
accept and process cost-share applications;
(2)
keep accurate records and logs of applications;
(3)
determine eligibility for cost-share assistance according
to the criteria listed in §517.30. If an applicant's land is in more
than one SWCD, the respective SWCDs will review the application and agree
to oversee all works and administrate all contracts from one SWCD or prorate
between the SWCDs;
(4)
provide or arrange for technical assistance for eligible
applicants according to priority established by the critical area working
group;
(5)
examine brush control plans and contracts to assure inclusion
of all necessary information and exhibits and that the criteria established
in §517.33 are met;
(6)
prepare comments and recommendations relating to the brush
control plan and contract for submittal to the State Board;
(7)
approve brush control plans and contracts that meet FOTG
requirements on management units included in the brush control plan;
(8)
forward SWCD approved brush control plans and contracts
to the State Board for quality control and execution of contract;
(9)
once approved by the State Board, notify the applicant
that his/her contract has been approved for cost-share and to proceed with
implementation as outlined in the applicant's brush control plan;
(10)
file a copy of the approved contract;
(11)
certify to the State Board that conservation land treatment
measures have been completed according to standards and specifications prior
to payment;
(12)
submit required reports to the State Board; and
(13)
as directed by the State Board, manage any problem that
arises under a cost-sharing contract for brush control in that SWCD and report
to the State Board.
§517.29.Cost-share for Brush Control
(a)
Basis for cost-share. Cost-share shall be based on actual
cost not to exceed average cost.
(b)
Average costs.
(1)
The State Board, in consultation with SWCDs in which all
or part of the critical area is located, shall establish average costs for
each practice approved for the critical area considering the results of the
feasibility studies.
(2)
The critical area working group shall develop average costs
annually for each practice on the critical area's approved practice list not
to exceed the average costs established by the State Board.
(3)
The critical area working group may submit a written request
to the State Board to increase the average costs established for each practice.
(c)
Maximum cost-share amount available.
(1)
The maximum cost-share assistance that an eligible person
may receive under the program in any one year, and the lifetime maximum cost-share
assistance that an eligible person may receive is unrestricted by the State
Board.
(2)
The critical area working group may establish the maximum
cost-share assistance that an eligible person may receive under the program
in any one year, and the lifetime maximum cost-share assistance that an eligible
person may receive.
(d)
Cost-share rates. The State Board shall establish, in program
guidance, the cost-share rate for each practice approved for the critical
area considering the results of the feasibility studies. The total cost-share
shall not exceed 80%. The critical area working group shall establish cost-share
rates, not to exceed those established by the State Board.
§517.30.Eligibility for cost-share assistance.
(a)
Eligible person. Any individual, partnership, administrator
for a trust or estate, family-owned corporation, or other legal entity who
as an owner, lessee, tenant, or sharecropper participates in an agricultural
or wildlife operation within a critical area and is a cooperator with the
local SWCD shall be eligible for cost-share assistance.
(b)
Ineligible person.
(1)
A person is not eligible to participate in the state brush
control program or to receive money from the state brush control program if
the person is simultaneously receiving any cost-share money for brush control
on the same acreage from a federal government program.
(2)
The State Board may grant an exception if the State Board
finds that joint participation of the state brush control program and any
federal brush control program will enhance the efficiency and effectiveness
of a project and lessen the state's financial commitment to the project.
(c)
Eligible land. To be eligible for cost-share assistance,
the land must be within a designated critical area and fall into any of the
following categories:
(1)
land within the state that is privately owned by an eligible
person;
(2)
land leased by an eligible person over which the applicant
has adequate control extending through the term of the contract period and
written permission of the landowner; or
(3)
land owned by the state, a political subdivision of the
state, or a nonprofit organization that holds land in trust for the state.
(d)
Ineligible lands. Allocated funds shall not be used on
land outside of a designated critical area or land not used for agricultural
or wildlife production.
(e)
Eligible purposes. Cost-share assistance shall be available
only for brush control included in an approved brush control plan and contract
and determined to be needed by SWCDs to conserve water.
(f)
Eligible practices. Brush control methods, which the State
Board has approved and which are included in the applicant's approved brush
control plan and contract, shall be eligible for cost-share assistance. The
critical area working group shall designate their list of eligible methods
from those approved by the State Board.
(g)
Requirement to file an application. In order to qualify
for cost-share assistance, an eligible person shall file an application with
the local SWCD.
(h)
Requirement to develop a brush control plan. In order to
qualify for cost-share assistance, an eligible person shall develop a brush
control plan. Brush control plans shall meet resource management system requirements
on acres planned, as set forth in the FOTG.
(i)
Persons authorized to sign applications and contracts.
All applications, contracts, and performance certifications shall be signed
by:
(1)
the eligible person;
(2)
any person designated to represent the eligible person,
provided an appropriate notarized durable power of attorney has been filed
with the SWCD office; or
(3)
the responsible person or administrator, in cases of trusts
or estates, provided that letters of administration or letters of testamentary
have been submitted to the SWCD in lieu of a power of attorney.
§517.31.Responsibility of applicants.
(a)
Applicants shall complete and submit an application;
(b)
Applicants shall complete a SWCD cooperative agreement
if the applicant is not already a SWCD cooperator;
(c)
Where an applicant does not have an approved brush control
plan and has not determined the anticipated total cost of the proposed measure(s),
he/she shall obtain a brush control plan approved by the local SWCD;
(d)
Applicants shall complete, sign, and submit a cost-share
contract based on the approved brush control plan to the SWCD along with any
amendments to the contract;
(e)
After being notified of approval, applicants may request
technical assistance through the SWCD to design and lay out the approved brush
control or request approval of alternate sources of technical assistance;
(f)
Applicants shall perform the approved brush control or
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; and
(g)
Applicants shall supply the documents necessary to verify
completion of the approved brush control along with copies of receipts for
work to be cost-shared.
§517.32.Applications for cost-share.
(a)
A person who desires to participate with the state in a
brush control project and to obtain cost-sharing participation by the state
shall file an application with the SWCD in the SWCD in which the land on which
the project is to be accomplished is located.
(b)
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. 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.
(c)
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.
(d)
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 SWCD in accordance
with the SWCD's established record retention policy.
§517.33.Contracts for cost-share.
(a)
According to the priority of an application, the SWCD shall
negotiate a ten-year brush control contract with the successful applicant
in the critical area subject to:
(1)
Guidelines established by the State Board.
(2)
Development of a brush control plan. As a condition for
receipt of cost-share assistance for brush control, the eligible person receiving
the benefit of such assistance shall agree to develop a brush control plan.
(3)
Signature of a 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 the State Board and the terms of
the cost-share agreement. Completion of the performance agreement and the
signature of the eligible person are required prior to payment.
(4)
Management of treated areas.
(A)
Requirements for follow-up brush control will be included
in the cost-share contract with management recommendations outlined in the
eligible person's brush control plan. These will be reviewed with the eligible
person prior to signature and initiation of the cost-share contract. Requirements
for follow-up brush control are subject to funding availability.
(B)
The SWCD may require refund of any or all of the cost-share
paid to an eligible person when acres where brush control was applied has
not been managed in compliance with applicable standards and specifications
for the practice in accordance with the terms of the cost-share contract as
agreed to by the eligible person.
(C)
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 term of the contract has not expired,
the participant, heir(s), or buyer(s) respectively, must agree to properly
manage the treated area 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 SWCD, may grant a waiver to this requirement.
(b)
Criteria to consider. In approving a contract for cost
sharing, the SWCD, in accordance with criteria established by the critical
area working group, shall consider:
(1)
whether the brush control is to be carried out in a critical
area;
(2)
the method of control that is to be used by the applicant;
(3)
the plans for revegetation;
(4)
the total cost of the brush control;
(5)
the amount of land to be included;
(6)
whether the applicant is financially able to provide his
share of the money for the brush control;
(7)
the cost-share percentage, if an applicant agrees to a
higher degree of financial commitment;
(8)
any comments and recommendations of the TPWD; and
(9)
any other pertinent information considered necessary by
the SWCD.
(c)
Approval of contracts. The SWCD may approve a contract
if, after considering the factors listed in §517.33(c) and any other
relevant factors, the SWCD finds:
(1)
the owner of the land fully agrees to cooperate in the
project;
(2)
the method of control is a method approved by the critical
area working group; and
(3)
the brush control is to be carried out in a critical area
designated under the State Brush Control Plan.
(d)
On completion of the negotiations by the SWCD, it shall
submit the proposed contract to the State Board for execution.
(e)
The State Board shall examine the contract and if the State
Board finds that the contract meets all the conditions established in this
section and the guidelines, it shall execute the contract and provide to the
individual on completion of the project the money that constitutes the state's
share of the project.
(f)
Amending contracts.
(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 contract for cost-share to the SWCD for approval or denial by the
SWCD.
(2)
The amount of funds obligated for brush control may be
adjusted, provided funds are available and the adjustment is considered a
priority according to the critical area working group priority system.
(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.
§517.34.Payment to recipients.
(a)
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 the FOTG.
(b)
The State Board shall cause payment for cost-share assistance
to be issued to the applicant.
(c)
Partial payment can be requested for brush control methods
completed on identifiable land units as they are completed, provided required
management can be applied.
(d)
State money may not be provided in advance for work remaining
to be done.
§517.35.Determining status of brush control during transfer of land ownership.
(a)
A seller of agricultural land with respect to which a performance
agreement is in effect may request the SWCD to inspect the practice. If the
practice has been properly managed the SWCD shall issue a written statement
that the seller has satisfactorily managed the treated area as of the date
of the statement.
(b)
The buyer of lands covered by a performance agreement may
also request that the SWCD inspect the lands to determine whether the treated
area has been properly managed as of the date of the inspection. If so, the
SWCD will provide the buyer with a statement specifying the extent of compliance
or 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.
§517.36.Reporting and accounting.
The State Board shall receive and maintain required reports showing
the unobligated balance of funds for each critical area as shown on each ledger
at the close of the last day of each month.
§517.37.Consultation with the TPWD.
(a)
The State Board shall consult the TPWD in regard to the
effects of the brush control program on fish and wildlife.
(b)
When assessing the feasibility of brush control in a watershed,
the TPWD shall be consulted concerning the effects of brush control on fish
and wildlife and shall be provided with an opportunity to review and comment
on feasibility studies.
(c)
The TPWD and other agricultural interests in the affected
area shall be notified of all critical area working group meetings. The TPWD
will provide technical assistance to the critical area working group in the
development and implementation of the brush control plans.
(d)
Comments and recommendations from the TPWD shall be considered
when passing on applications for cost-share.
(e)
Applicants shall be notified that the TPWD provides free
technical guidance to landowners regarding the management of wildlife resources
and habitats on their lands.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on January 24, 2003.
TRD-200300498
James M. Moore
Executive Director
Texas State Soil and Water Conservation Board
Effective date: February 13, 2003
Proposal publication date: December 6, 2002
For further information, please call: (254) 773-2250
Part 17.
TEXAS STATE SOIL AND WATER CONSERVATION BOARD
Chapter 523.
AGRICULTURAL AND SILVICULTURAL WATER QUALITY MANAGEMENT