31 TAC §§523.1, 523.3, 523.4, 523.6
The Texas State Soil and Water Conservation Board (State
Board) proposes amendments to 31 TAC §§523.1, 523.3, 523.4, and
523.6 to use language more consistent with current rules and regulations governing
water quality issues and other language corrections. These changes consist
of: §523.1(1)(B) where the word confined (as used in relationship to
animal feeding operations) is being deleted; §523.3(a) where language
is being added to specify that a water quality management plan must meet the
resource quality criteria for water quality; §523.3(e)(2) where the name
of the Natural Resources Conservation Service is being corrected; §523.3(e)(3)
and §523.4(3)(C) where the name of the Natural Resources Conservation
Service is again corrected and the name of the Texas Agricultural Extension
Service is corrected to the Texas Cooperative Extension; §523.3(f)(4)
and §523.3(h)(5) are amended to state status reviews of plan implementation
will not be done on an annual basis; §523.3(h)(1) is amended to delete
the unneeded definition of a poultry operating unit; §523.6(b)(2) the
unneeded letter a is being deleted from the sentence: §523.6(b)(3) the
sentence is corrected with the addition of the word by; §523.6(b)(8)
is amended to state an eligible person may also be any person designated to
represent the applicant as provided by a durable power of attorney, court
order or other valid legal document; §523.6(b)(11), §523.6(c)(2)(H), §523.6(e)(6), §523.6(f)(1)(B), §523.6(f)(5),
and §523,6(g)(1) are amended to delete the word resource (as used in
reference with certified resource management plan) and replace it with the
term water quality; §523.6(b)(13) is being proposed as a new paragraph
(13) to define an operating unit as land, whether contiguous or noncontiguous,
owned and/or operated by the applicant as an independent management unit for
agricultural or silvicultural purposes; §523.6(b)(13) - (15) are renumbered
to accommodate the new paragraph (13) described above; §523.6(b)(16)
which defines a resource management plan is being deleted as it is no longer
applicable; §523.6(d)(2) is amended to specify requests by districts
for allocations must be submitted by September 1st of each year and being
deleted is language specifying that request be on forms provided by the State
Board and shall include all information required by such forms; §523.6(e)(3)(B)
is amended to he or she as an eligible person; §523.6(e)(5) is amended
to use the term eligible practices in the definition of eligible purpose and
the term conservation land treatment is deleted from the definition; §523.6(e)(8)
is amended to delete the word authorized and replace it with required (as
it relates to signatures on applications and agreements); §523.6(e)(8)(A)
- (B) are amended to specify eligible persons required to sign applications
will also include the landowner in cases where the eligible person does not
hold title to the land constituting the operating unit and all other language
referring to designated representatives in subparagraph (B) is deleted; §523.6(e)(8)(C)
relating to other representatives of persons who could sign an application
or agreement is deleted in its entirety; §523.6(f)(4) is amended by replacing
the word is with the word are; §523.6(f)(5) is amended to add language
to specify the landowner must sign the application for cost-share pursuant
to subsection (e)(8)(B) and assume the responsibility of the maintenance agreement,
in addition all appropriate signatures are required prior to payment after
completion of maintenance and the language of the eligible person is, is deleted
since the section refers to the landowner; §523.6(g)(3) is amended to
delete the word may and replace it with the word will (in relation to requiring
a refund of cost-share when maintenance is not conducted in compliance with
specifications and new language is added to specify the State Board may grant
a waiver to this requirement on a case-by-case basis in consultation with
the SWCD; and §523.6(j) is added as new language to state that pursuant
to the Agriculture Code of Texas, §201.311, one or more SWCD's may be
designated to administer portions of this section as determined by the State
Board.
Mr. Kenny Zajicek, Fiscal Officer, Texas State Soil and Water Conservation
Board 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
these amended rules.
Mr. Zajicek has also determined that for the first five year period these
amended rules are in effect, the public benefit anticipated as a result of
administering these amended rules will be a consistency of terms and definitions
and better understanding of the program by any and all individuals involved
with and/or concerned with this program.
There is no anticipated cost to small businesses or individuals resulting
from these amended rules.
Comments on the proposed amendments may be submitted in writing to Rex
Isom, Executive Director, Texas State Soil and Water Conservation Board, P.O.
Box 658, Temple, Texas 76503, (254) 773-2250 ext. 231.
The amendments are proposed under the Agriculture Code of Texas,
Title 7, Chapter 201, §201.020, which authorizes the Texas State Soil
and Water Conservation Board to adopt rules that are necessary for the performance
of its functions under the Agriculture Code.
No other statutes, articles, or codes are affected by this proposal.
§523.1.Scope and Jurisdiction.
The Texas State Soil and Water Conservation Board (state board) is
the lead agency in this state for activity relating to abating agricultural
and silvicultural nonpoint source pollution.
(1)
Nonpoint source pollution is pollution caused by diffuse
sources that are not regulated as point sources and normally is associated
with agricultural, silvicultural, and urban runoff, runoff from construction
activities, etc. Such pollution is the result of human-made or human-induced
alteration of the chemical, physical, biological, and radiological integrity
of water. In practical terms nonpoint source pollution does not result from
a discharge at a specific, single location (such as a single pipe) but generally
results from land runoff, precipitation, atmospheric deposition, or percolation.
Pollution from nonpoint sources occurs when the rate at which pollutant materials
entering water bodies or groundwater exceeds natural rates or total loadings
exceed natural loadings.
(A)
(No change.)
(B)
Animal
[
Confined animal
] feeding
operations may be considered as point or nonpoint sources depending on size,
location, and other considerations. For the purposes of these rules, all [
confined
] animal feeding operations not required to obtain a permit
from the Texas Commission on Environmental Quality will be nonpoint sources.
(2) - (3)
(No change.)
§523.3.Water Quality Management Plans.
(a)
A water quality management plan is a site specific plan
for agricultural or silvicultural lands which includes appropriate land treatment
practices, production practices, management measures, technologies or combinations
thereof which when implemented will achieve a level of pollution prevention
or abatement determined by the State Board in consultation with the local
soil and water conservation district and Texas Commission on Environmental
Quality to be consistent with state water quality standards. To be certified,
a water quality management plan must
meet the resource quality criteria
for water quality and
cover all lands whether contiguous or non-contiguous
that constitutes an operating unit for agricultural or silvicultural purposes.
(b) - (d)
(No change.)
(e)
Practice standards.
(1)
(No change.)
(2)
Practice standards will be based on criteria in the Natural
Resources
[
Resource
] Conservation Service, Field Office Technical
Guide; however, modification of those practice standards to ensure consistency
with state water quality standards and the state agricultural and silvicultural
nonpoint source management program will be made as necessary.
(3)
Practice standards will be developed in consultation with
the local soil and water conservation district, with assistance and advice
of the USDA, the Natural
Resources
[
Resource
] Conservation
Service, Texas
Cooperative
[
Agricultural
] Extension
[
Service
], Texas Forest Service, Texas Agricultural Experiment
Station, Texas Commission on Environmental Quality, the local underground
water conservation district and others as determined to be needed by the State
Board.
(f)
Implementation schedule.
(1) - (3)
( No change.)
(4)
The State Board in consultation with affected soil and
water conservation districts will conduct [
an annual
] status
reviews
[
review
] of plan implementation.
(5) - (6)
(No change.)
(g)
(No change.)
(h)
Water Quality Management Plans for Poultry Facilities.
(1)
After September 1, 2001 in accordance with the schedule
in paragraph (2) of this subsection, all poultry facilities producing poultry
for commercial purposes will be required to develop and implement a certified
water quality management plan covering the poultry operating unit[
, which
consists of all poultry production facilities and lands upon which poultry
wastes are applied
].
(2) - (4)
(No change.)
(5)
The State Board in consultation with the local soil and
water conservation district will conduct [
annual
] status reviews
of certified water quality management plans covering poultry facilities on
a schedule determined by the State Board.
(6) - (8)
(No change.)
§523.4.Resolution of Complaints.
Complaints concerning the violation of a Water Quality Management
Plan or a violation of a law or rule relating to nonpoint source pollution
will be addressed as follows.
(1) - (2)
(No change.)
(3)
Corrective action plan. Once the determination of the
need for action is made, a corrective action plan will be developed.
(A) - (B)
(No change.)
(C)
The corrective action plan will be developed with the
technical assistance from the Natural
Resources
[
Resource
] Conservation Service, Texas
Cooperative
[
Agricultural
] Extension [
Service
], Texas Forest Service, the local underground
water conservation district, and/or State Board as appropriate.
(4)
(No change.)
§523.6.Cost-Share Assistance for Soil and Water Conservation Land Improvement Measures.
(a)
(No change.)
(b)
Definitions. For the purposes of these rules the following
definitions shall apply.
(1)
(No change.)
(2)
Applicant--A person(s) who applies for [
a
]
cost-share assistance from the SWCD.
(3)
Available funds--Monies budgeted, unobligated and approved
by
the State Board for cost-share assistance.
(4) - (7)
(No change.)
(8)
Eligible person--Any of the land holders eligible to apply
for cost-share assistance
or any person designated to represent the applicant
as provided by a durable power of attorney, court order or other valid legal
document
.
(9) - (10)
(No change.)
(11)
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 measure(s)
in the certified
water quality
[
resource
] management
plan consistent with its implementation schedule. The maintenance agreement
shall remain in effect for a minimum period of two years after the certified
water quality
[
resource
] management plan is completely implemented
for all practices except those cost-shared. The maintenance agreement shall
remain in effect on cost-shared practices for the expected life of the practice
as established by the State Board or for a period of two years after the certified
water quality
[
resource
] management plan is completely implemented,
whichever period of time is longer.
(12)
(No change.)
(13)
Operating Unit--Land, whether
contiguous or noncontiguous, owned and/or operated by the applicant as an
independent management unit for agricultural or silvicultural purposes.
(14)
[
(13)
] Performance agreement--A
written agreement between the eligible person and the SWCD wherein the eligible
person agrees to perform conservation land improvement measures for which
allocated funds are being paid.
(15)
[
(14)
] Priority system--The system
devised by the SWCD, under guidelines of the State Board, for ranking approved
conservation land treatment measures and for facilitating the disbursement
of allocated funds in line with the SWCD's priorities.
(16)
[
(15)
] Program year--The period
from September 1 to August 31.
[
(16)
Resource management plan--A site specific
blueprint 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.
]
(17) - (18)
(No change.)
(c)
Responsibilities.
(1)
(No change.)
(2)
The SWCDs shall:
(A) - (G)
(No change.)
(H)
Approved applications will be filed in the Districts copy
of the applicant's
Water Quality
[
Resource
] Management
Plan.
(I) - (L)
(No change.)
(d)
Administration of Funds.
(1)
(No change.)
(2)
Requests for Allocations. SWCDs within areas designated
for cost-share program must submit requests for a cost-share fund allocation
to the State Board
by September 1st each year
[
on forms provided
by the State Board, and shall include all information required by such forms
].
(3)
(No change.)
(e)
Eligibility for Cost-Share Assistance.
(1) - (2)
(No change.)
(3)
Eligible land. Any of the following categories of land
shall be eligible for cost-share assistance:
(A)
(No change.)
(B)
Land leased by an eligible person over which he
/she
has
[
as
] adequate control and which land is utilized as a
part of his operating unit.
(C)
(No change.)
(4)
(No change.)
(5)
Eligible purposes. Cost-share assistance shall be available
only for those
eligible practices
[
conservation land treatment
] measures included in an approved resource management plan and determined
to be needed by the SWCD to:
(A) - (B)
(No change.)
(6)
Eligible practices. Conservation land treatment measures
which the State Board has approved and which are included in the applicant's
approved
water quality
[
resource
] management plan shall
be eligible for cost-share assistance. The list of eligible practices will
be approved by the State Board at the beginning of each fiscal year. The SWCDs
shall designate their list of eligible practices from those practices approved
by the State Board. SWCDs may request the State Board's approval to offer
conservation land treatment measures not included in the State Board's list
of approved practices. The use of special conservation land treatment measures
is limited to those measures that can solve unique problems in a SWCD and
which conforms with one or more of the purposes of the cost-share program.
Requests for special conservation land treatment measures will be filed in
writing with the State Board in time to obtain action and notification in
writing from the State Board of its decision(s) prior to announcing the cost-share
program locally for the program year. Conservation land treatment measures
may be included in a SWCD's list of eligible practices offered for cost-share
assistance only as approved by the State Board.
(7)
(No change.)
(8)
Persons
required
[
authorized
] to
sign applications and agreements. All applications and agreements shall be
signed by:
(A)
The eligible person
and
;
(B)
the landowner in cases where the
eligible person does not hold title to the land constituting the operating
unit.
[
(B)
Any person designated to represent the
eligible person, provided an appropriate notarized durable power of attorney
has been filed with the SWCD office; or
]
[
(C)
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.
]
(f)
Cost-Share Assistance Processing Procedures.
(1)
Responsibility of applicants. Applicants for cost-share
assistance for conservation land treatment measures shall:
(A)
(No change.)
(B)
Where an applicant does not have an approved
water
quality
[
resource
] management plan and has not determined
the anticipated total cost of the requested measure(s), he/she, as part of
the application, may request assistance from the SWCD in developing such plan
and determining costs.
(C) - (F)
(No change.)
(2) - (3)
(No change.)
(4)
Performance Agreement. As a condition for receipt of cost-share
assistance for conservation land treatment measures, the eligible person receiving
the benefit of such assistance shall agree to perform those measures in accordance
with standards established by Texas State Soil and Water Conservation Board.
Completion of the performance agreement and the signature of the eligible
person
are
[
is
] required prior to payment.
(5)
Maintenance Agreement. As a condition for receipt of cost-share
assistance, the person(s) receiving the assistance shall agree to implement
and maintain all measures in the certified
water quality
[
resource
] management plan consistent with its implementation schedule.
The maintenance agreement shall remain in effect for a minimum period of two
years after the certified
water quality
[
resource
] management
plan is completely implemented for all practices except those cost-shared.
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 or for a period of two years after the certified
water quality
[
resource
] management plan is completely implemented, whichever
period of time is longer.
The landowner must sign the application for
cost-share pursuant to subsection (e)(8)(B) of this section and assumes the
responsibility of the maintenance agreement.
Completion of the maintenance
agreement and
all appropriate
signatures are
[
signature of the eligible person is
] required prior to payment.
(6) - (10)
(No change.)
(g)
Maintenance of Practices.
(1)
Requirements for maintenance of practices applied using
cost-share funds will be outlined in the eligible persons
water quality
[
resource
] management plan and reviewed with the eligible
person at the time of application for cost-share.
(2)
(No change.)
(3)
The SWCD
will
[
may
] require refund
of any or all of the cost-share paid to an eligible person when the applied
conservation land treatment measure(s) has not been maintained in compliance
with applicable design standards and specifications for the practice during
its expected life as agreed to by the eligible person.
The State Board
may grant a waiver to this requirement on a case-by-case basis in consultation
with the SWCD.
(4) - (5)
(No change.)
(h) - (i)
(No change.)
(j)
Pursuant to the Texas Agriculture Code, §201.311,
one or more SWCD's may be designated to administer portions of this section
as determined by the State Board.
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 March 29, 2006.
TRD-200601896
Mel Davis
Special Projects Coordinator
Texas State Soil and Water Conservation Board
Earliest possible date of adoption: May 14, 2006
For further information, please call: (254) 773-2250 x252