Part 10.
TEXAS WATER DEVELOPMENT BOARD
Chapter 375.
CLEAN WATER STATE REVOLVING FUND
The Texas Water Development Board (the board) proposes amendments
to 31 TAC §§375.15, 375.212, 375.214 and 375.222, and new §§375.301-375.305
concerning the Clean Water State Revolving Fund (the "CWSRF"). The amendments
and new sections will implement legislative changes to enable "persons" to
receive CWSRF loans for nonpoint source pollution control and abatement and
estuary management projects. The changes will also add flexibility to managing
loan applications in situations where the program capacity is adequate to
invite all applications for projects listed on an intended use plan. Additionally,
the amendments correct a legal reference, delete a reference to the Davis-Bacon
Act, and increase the interest rate subsidy for federally funded "tier three"
projects.
In the past, the demand for CWSRF program funds have exceeded the amount
of funds available. It is currently estimated that sufficient funds will be
available to serve all requests, except in a circumstance where a borrower
requests an unusually large amount. The proposed amendments to §375.15(m)
will allow the board to impose a cap on the maximum amount of funds available
to any single applicant. This amendment will allow the board to limit funds
on any one large request for funds when the limitation is necessary in order
to be able to fund all of the applicants that have requested assistance. The
amendments also provide that it is the policy of the board to fund all projects
listed on the intended use plan whenever possible so that the maximum number
of projects can be funded. The proposed amendments to §375.15(n) provide
that, if funds are available to do so, the executive administrator will invite
the submittal of all applicants on the annual intended use plan. This represents
a change from previous practice whereby the executive administrator could
invite the submittal of only those applications for which limited funds were
available. The amendments also specify timelines applicable to such applications
so that the board may more efficiently identify those projects that will actually
seek commitments for this funding year.
§375.15 (o) is renumbered to account for the new section. Proposed
amendments to §375.212 will remove a reference to the Davis-Bacon Act,
relating to wage rate requirements. This reference is removed because the
United States Environmental Protection Agency recently notified the board
that Davis-Bacon requirements were not applicable to the CWSRF program. The
proposed amendment to §375.214 corrects a citation to a federal act with
which CWSRF funding must comply. The proposed amendment to §375.222 provide
an increased interest rate subsidy for the purpose of encouraging more borrowers
to apply for available funds by reducing the cost of such funds.
New §§375.301-375.305 comprise new Subchapter C, Nonpoint Source
Pollution Loan and Estuary Management Program. The proposed new sections implement
Senate Bills 2 and 312 of the 77th Texas legislative session and further compliance
with the federal Clean Water Act. §375. 301 provides notice to applicants
for funds that applications for nonpoint source pollution control and estuary
management projects will be administered under the requirements of the general
provisions of this title.
To assist customers in the understanding of the nonpoint source pollution
and estuary management programs, §375.302 , relating to Definitions of
Terms, provides additional definitions of terms that apply to the two programs,
including a new definition of an eligible applicant for funds. §375.303
informs customers of the types of projects that will be eligible to receive
funding pursuant to the nonpoint source pollution loan program. Proposed §375.304
provides additional information to customers on the application process when
loans for nonpoint source pollution or estuary management are sought. In order
to be processed, applications must contain sufficient information for the
board to understand the details of the proposed project. §375.305 advises
customers of a board option for borrowing through the use of promissory note
and loan agreement with the board.
Ms. Misti Hancock, Interim Director of Fiscal Services, 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. Hancock 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 an expansion of funding available to applicants through
the CWSRF, removal of an incorrect reference, and ensuring that board rules
comply with federal requirements. Ms. Hancock 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 Jeff Walker, Texas Water Development Board,
P.O. Box 13231, Austin, Texas, 78711-3231, by e-mail to jeff.walker@twdb.state.tx.us
or by fax @ (512) 475-2086.
Subchapter A. GENERAL PROVISIONS
2.
PROGRAM REQUIREMENTS
31 TAC §375.15
The amendments are proposed under the authority of the Texas
Water Code §6.101 and §15.605 which provide the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State including specifically
the SRF program.
The statutory provisions affected by the proposed amendments are Texas
Water Code, Chapter 15, Subchapter J.
§375.15.Criteria and Methods for Distribution of Funds.
(a) - (l)
(No change.)
(m)
It is the policy of the board to fund
all projects listed in the intended use plan whenever possible. To implement
this policy, the board may impose a cap on the maximum amount of funds available
to any single applicant.
(n)
If no shortage of funds exists for a fiscal
year the executive administrator will invite the submittal of applications
from all applicants. After official invitation, applicants will be given until
August 31 of that fiscal year to submit an application and an additional two
months to receive a loan commitment.
(o)
[
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 July 23, 2001.
TRD-200104218
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: September 19, 2001
For further information, please call: (512) 463-7981
2.
PROGRAM REQUIREMENTS
31 TAC §375.212, §375.214
The amendments are proposed under the authority of the Texas
Water Code §6.101 and §15.605 which provide the Texas Water Development
Board with the authority to adopt rules necessary to carry out the powers
and duties in the Water Code and other laws of the State including specifically
the SRF program.
The statutory provisions affected by the proposed amendments are Texas
Water Code, Chapter 15, Subchapter J.
§375.212.Capitalization Grant Requirements.
(a)
All projects which receive assistance from the fund and
will be constructed in whole or part with funds directly made available by
capitalization grants shall satisfy the following federal requirements:
(1)
National Environmental Policy Act of 1969, PL 91-190;
(2)
Archeological and Historic Preservation Act of 1974, PL
93-291;
(3)
Clean Air Act, 42 USC 7506(c);
(4)
Coastal Barrier Resources Act, 16 USC 3501 et seq;
(5)
Coastal Zone Management Act of 1972, PL 92-583, as amended;
(6)
Endangered Species Act, 16 USC 1531, et seq;
(7)
Executive Order 11593, Protection and Enhancement of the
Cultural Environment;
(8)
Executive Order 11988, Floodplain Management;
(9)
Executive Order 11990, Protection of Wetlands;
(10)
Farmland Protection Policy Act, 7 USC 4201 et seq;
(11)
Fish and Wildlife Coordination Act, PL 85-624, as amended;
(12)
National Historic Preservation Act of 1966, PL 89-665,
as amended;
(13)
Safe Drinking Water Act, §1424(e), PL 92-523, as
amended;
(14)
Wild and Scenic Rivers Act, PL 90-542, as amended;
(15)
Demonstration Cities and Metropolitan Development Act
of 1966, PL 89-754, as amended;
(16)
Clean Air Act, §306 and Clean Water Act, §508,
including Executive Order 11738, Administration of the Clean Air Act and the
Federal Water Pollution Control Act with Respect to Federal Contracts, Grants,
or Loans;
(17)
Age Discrimination Act, PL 94-135;
(18)
Civil Rights Act of 1964, PL 88-352;
(19)
PL 92-500, §13; Prohibition against sex discrimination
under the Federal Water Pollution Control Act;
(20)
Executive Order 11246, Equal Employment Opportunity;
(21)
Executive Orders 11625 and 12138, Women's and Minority
Business Enterprise;
(22)
Rehabilitation Act of 1973, PL 93-112 (including Executive
Orders 11914 and 11250);
(23)
Uniform Relocation and Real Property Acquisition Policies
Act of 1970, PL 91-646;
(24)
Executive Order 12549, Debarment and Suspension;
(25)
The Wilderness Act, 16 USC 1131 et seq.;
(26)
Environmental Justice, Executive Order 12898;
(27)
Clean Water Act, PL 92-500, as amended;
and
(28)
Section 129, Small Business Administration Reauthorization
and Amendment Act of 1988, PL 100-590
.
[
[(29)
Davis-Bacon Act, 40 U.S.C. §§276a-276a-5,
as amended, to the extent required by §513 of the Clean Water Act, 33
U.S.C. §1372, as amended.]
(b)
(No Change.)
§375.214.Required Environmental Review and Determination.
(a) - (c)
(No change.)
(d)
Application of other laws and authorities. In addition
to the requirements of state law and rules, the Act, and the NEPA, the board
must, as required by the initial guidance for the state water pollution control
revolving fund and the capitalization grant agreement, insure that each project
proposed to receive CWSRF financial assistance complies with the following
federal laws and authorities respecting the human environment: the Archeological
and Historic Preservation Act of 1974, Public Law 93-191; the Historic Sites
Act; the Clean Air Act, 42 United States Code 7506(c); the Coastal Barrier
Resources Act, 16 United States Code 3501 et seq., the Coastal Zone Management
Act of 1972, Public Law 92-583, as amended; the Endangered Species Act, 16
United States Code 1531 et seq.; Executive Order 11953, Protection and Enhancement
of the Cultural Environment; Executive Order 11988, Floodplain Management;
the Flood Disaster Protection Act of 1973, Public Law 93-234; Executive Order
11990, Protection of Wetlands; the Farmland Protection Policy Act, 7 United
States Code 4201 et seq.; the Fish and Wildlife Coordination Act, Public Law
85-624, as amended; the National Historic Preservation Act of 1966, Public
Law 89-665, as amended; the Safe Drinking Water Act, §1424(e), Public
Law 92-523, as amended; and the Wild and Scenic Rivers Act, Public Law 90-542,
as amended. Because particular federal and/or state agencies are charged with
the enforcement of or permitting under many of these laws and authorities,
the executive administrator will provide guidance to applicants to the fund
regarding consultation requirements and will encourage proper coordination
of project planning with the appropriate agencies. Because of their complexity
and critical importance to the board's administration of the fund, the board
has adopted the following sections to effect proper compliance with the requirements
of the Flood Disaster Protection Act of 1973, the Coastal Barrier Resources
Act, and Executive Order 11988, Floodplain Management.
(1) - (2)
(No Change.)
(3)
Pursuant to the requirements of Executive Order 11988,
the board will avoid direct and indirect support of development in floodplains
wherever there is a practicable alternative. Therefore, both to preserve the
significant natural functions and values of floodplains and to protect human
health and safety.
(A)
The board may provide financial assistance from the fund
for the transportation or treatment of wastewater generated in a floodplain
only when the proposed project will provide service to:
(i) - (ii)
(No change.)
(iii)
areas of projected growth if an EID demonstrates that
the proposed development will be consistent with FEMA's floodplain management
criteria for flood prone areas (
44
[
(iv)
(No change.)
(B) - (D)
(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 July 23, 2001.
TRD-200104219
Suzanne Schwartz
General Counsel
Texas Water Development Board
Proposed date of adoption: September 19, 2001
For further information, please call: (512) 463-7981
m
] Notwithstanding the provisions
of subsections (e), (f), and (h) of this section, the executive administrator
may request additional information regarding any portion of the application
for assistance, after the application has been submitted, without affecting
the priority rating status of the application.
Subchapter B. PROVISIONS PERTAINING TO USE OF CAPITALIZATION GRANT FUNDS
; and
]
40
] Code of Federal
Regulations 60.3) and will have no significant impacts on natural functions
and values of floodplains; and
3.
PREREQUISITES TO RELEASE OF FUNDS