31 TAC §§517.22-517.30
The Texas State Soil and Water Conservation Board adopts
new §§31 TAC 517.22 - 517.30 with changes to the proposed text published
in the
Texas Register
June 11, 1999 (24 TexReg
4348).
This section establishes a cost share assistance program to provide incentive
to implement brush control consistent with the purpose of preserving water
and/or protecting water quality.
Comments were received from one respondent and are as follows: 1) Section
517.23(4) Basis for cost sharing should be actual cost not to exceed average
cost only. Reference to average cost and actual cost not to exceed a specified
maximum cost as possible basis for cost sharing should be eliminated in this
paragraph and in the following paragraphs: 517.23(7); 517.24(a)(4); 517.24(b)(3);
and 517.25(b); 2) Section 517.23(14) in the third line, change "maintain all
measures' to read "maintain all cost shared measures"; 3) Section 517.27(a)
Subparagraph (2) should be renumbered (3) and changed to identify the application
as being for cost share based on an approved resource plan. Subparagraph (3)
should be renumbered (2) and changed to require the applicant to obtain a
resource management plan approved by the local SWCD. Subparagraph (7) should
require copies of receipts for work to be cost shared instead of "a completed
and signed certification of cost"; 4) Section 517.27(b) the first responsibility
of the SWCD should be to approve resource management plans. The subsequent
subparagraphs should be renumbered accordingly; 5) Section 517.27(c) This
section appears to be incomplete. Details of its meaning should be added or
it should be deleted; and 6) Section 517.27(e) in the second line change "maintain
all measures" to read "maintain all cost shared measures". All recommended
changes were made.
The new sections are adopted under Chapter 2001.020 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 and/or protecting water quality.
§517.23.Definitions.
For the purposes of these rules the following definitions shall apply.
(1)
Allocated funds--Funds budgeted through the state board
to an SWCD for cost-share assistance.
(2)
Applicant--An eligible person 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)
Basis for cost-sharing--Cost-share will be based on
actual cost not to exceed the average cost.
(5)
Brush Control--The managing and manipulating of stands
of brush on rangeland, pastureland and recreation and wildlife areas by mechanical,
chemical, or biological means or by prescribed burning.
(6)
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.
(7)
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.
(8)
District director--A member of the governing board
of an SWCD.
(9)
Eligible land--Those lands that are eligible for application
of brush control using cost-share assistance.
(10)
Eligible person-- Any individual, partnership, administrator
for a trust or estate, family-owned corporation, or other legal entity eligible
to apply for cost-share assistance that is a cooperator with the local soil
and water conservation district. Allocated funds shall not be used to reimburse
other units of government for implementing conservation land treatment measures.
(11)
Expected life of practice--The period of time established
by the State Board for which a cost-shared practice must be maintained. When
properly maintained the practice will remain effective beyond this period.
(12)
Landowner--Any person(s), firm or corporation holding
title to land lying within a watershed approved for project action.
(13)
Operator-- Any person(s), firm or corporation with
a contractual arrangement with the landowner that grants operational control
of an agricultural enterprise.
(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.
(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.
(16)
Performance agreement--A written agreement between
the eligible person and the SWCD wherein the eligible person agrees to perform
the brush control for which allocated funds are being paid.
(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.
(18)
Program year--The period from September 1 to August
31.
(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.
(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.
(21)
State Board--The Texas State Soil and Water Conservation
Board organized pursuant to the provisions of the Agriculture Code of Texas,
Chapter 201.
§517.24. Responsibilities.
(a)
The state board shall:
(1)
establish procedures for the allocation of funds to SWCDs
for their use in cost-share assistance;
(2)
establish brush control methods eligible for cost-share
and their standards, specifications, maintenance, and expected life;
(3)
establish maximum cost-share rate for each conservation
land treatment measure approved for cost-share, not to exceed maximums established
by enabling legislation;
(4)
approve average costs developed annually by SWCDs;
(5)
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;
(6)
perform clerical, administrative, and recordkeeping
responsibilities required for carrying out the cost-share program;
(7)
receive and maintain monthly reports from SWCDs showing
the unobligated balance of allocated funds as shown on each ledger at the
close of the last day of each month;
(8)
receive requests for reallocated funds and funds reverted
from participating SWCDs;
(9)
act on appeals filed by applicants;
(10)
process vouchers and issue warrants for cost-share
to eligible recipients.
(b)
The SWCDs shall:
(1)
designate, from state board approved list, those brush
control methods that will be eligible for cost-share in their SWCD;
(2)
establish district maximum cost-share rates not to
exceed maximums set by the State Board;
(3)
develop annually district average cost for each practice
on the district's approved practice list;
(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
and announce the cost-share program locally;
(8)
accept and process cost-share applications;
(9)
determine eligibility of lands and persons for cost-share
assistance under guidelines established by the state board;
(10)
notify applicants of the district's decisions on
approval of applications;
(11)
file original copy of approved applications in the
district's copy of the applicant's resource management plan;
(12)
obligate allocated funds for applications receiving
final approval;
(13)
provide or arrange for technical assistance to applicants,
or approve application and provide for an alternate source of technical assistance;
(14)
certify to the state board that conservation land
treatment measures have been completed according to standards and specifications
prior to payment;
(15)
submit required reports on the unobligated balance
of allocated funds and on accomplishments to the state board.
§517.25.Administration of Funds.
(a)
Allocation of funds. The state board may allocate funds
appropriated from general revenue fund to SWCDs for brush control. Such allocations
may be adjusted throughout the year as available funds and SWCD needs and
priorities change in order to achieve the most efficient use of state funds.
(b)
Requests for allocations. SWCDs within areas designated
for brush control cost-share must submit written requests for a cost-share
fund allocation to the state board and shall include average costs of brush
control and maximum allowable cost-share per individual approved by the district
for the program year.
(c)
Approval of allocations. The state board shall consider
and approve, reject, or adjust SWCD requests for allocations giving consideration
to relative need for funding, SWCD workload and fund balances, as well as
other information deemed necessary by the state board. Only districts for
which the state board has established an allocation are eligible to claim
cost-share funds.
§517.26.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 silvicultural operation within an SWCD and is a cooperator with the local
SWCD shall be eligible for cost-share assistance.
(b)
Eligible land. Any of the following categories of land
shall be eligible for cost-share assistance:
(1)
land within the state that is privately owned by an eligible
person;
(2)
land leased by an eligible person over which he has
adequate control and which land is utilized as a part of his operating unit;
(3)
land owned by the state, a political subdivision of
the state, or a nonprofit organization that holds land in trust for the state.
(c)
Ineligible lands. Allocated funds shall not be used on
privately owned land not used for agricultural or silvicultural production.
(d)
Eligible purposes. Cost-share assistance shall be available
only for brush control included in an approved resource management plan and
determined to be needed by the SWCD to improve water quality and/or quantity.
(e)
Eligible practices. Brush control methods which the state
board has approved and which are included in the applicant's approved resource
management plan shall be eligible for cost-share assistance. The SWCDs shall
designate their list of eligible methods from those approved by the state
board.
(f)
Requirement to file an application. In order to qualify
for cost-share assistance, an eligible person shall file an application with
the local soil and water conservation district.
(g)
Persons authorized to sign applications and agreements.
All agreements, applications and performance reports 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.
§517.27.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 performance and maintenance
agreements and any amendments to 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. 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.
(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 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.
(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.
(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.
(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.
(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.
§517.28.Maintenance of Brush Control.
(a)
Requirements for maintenance of brush control applied using
cost-share funds will be outlined in the eligible person's resource management
plan 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 the applied brush control has not been maintained
in compliance with applicable standards and specifications for the practice
during its 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 maintain the 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 maintenance
agreement is in effect may request the SWCD to inspect the practice. If the
practice has been properly maintained the SWCD shall issue a written statement
that the seller has satisfactorily maintained the permanent practice as of
the date of the statement.
(b)
The buyer of lands covered by a maintenance agreement may
also request that the SWCD inspect the lands to determine whether brush control
has been properly 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.
§517.30.Reporting and Accounting.
The state board shall receive and maintain required reports from SWCDs
showing the unobligated balance of allocated funds as shown on each ledger
at the close of the last day of each month.
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 July
23, 1999.
TRD-9904450
Robert G. Buckley
Executive Director
Texas State Soil and Water Conservation Board
Effective date: August 12, 1999
Proposal publication date: June 11, 1999
For further information, please call: (254) 773-2250