31 TAC §§523.1, 523.3, 523.4, 523.6
The Texas State Soil and Water Conservation Board (State
Board) adopts amendments to 31 TAC §§523.1, 523.3, and 523.4 pertaining
to Agricultural and Silvicultural Water Quality Management without changes.
The State Board adopts with changes amendments to 31 TAC §523.6 pertaining
to Agricultural and Silvicultural Water Quality Management. All listed sections
were posted in the April 14, 2006, issue of the
Texas Register
(31 TexReg 3225). An editorial change was implemented
in §523.6(e)(5) by changing the phrase "approved resource management
plan" to read "approved water quality management plan" to make the language
consistent with other subsections of the rule. The State Board believes the
adopted amendments reflect language more consistent with current rules and
regulations governing water quality issues and other language corrections
that will allow better understanding of the rules by those involved. The changes
made 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 adopted 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 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 §523.6 as determined by the State
Board.
No comments were received regarding the amendments.
The amendments are adopted under the Agriculture Code of Texas,
Title 7, Chapter 201, §201.020, which authorizes the State Board to adopt
rules that are necessary for the performance of its functions under the Agriculture
Code.
§523.6.Cost-Share Assistance for Soil and Water Conservation Land Improvement Measures.
(a)
Purpose. The purpose of this program is to provide the
needed incentive to landowners or operators for the installation of soil and
water conservation land improvement measures consistent with the purpose of
controlling erosion, conserving water, and/or protecting water quality.
(b)
Definitions. For the purposes of these rules the following
definitions shall apply.
(1)
Allocated funds--Funds budgeted through the State Board
to a SWCD for cost-share assistance.
(2)
Applicant--A person(s) who applies for cost-share assistance
from the SWCD.
(3)
Available funds--Monies budgeted, unobligated and approved
by the State Board for cost-share assistance.
(4)
Conservation land treatment measure(s)--The measure(s)
approved by the State Board and applied to the land to control soil erosion
or improve the quality and/or quantity of water.
(5)
Cost-share assistance--An award of money made to an eligible
person for conservation land improvement measures pursuant to the terms of
Senate Bill 503, 73rd Texas Legislature.
(6)
District director--A member of the governing board of a
SWCD.
(7)
Eligible land--Those lands that are eligible for application
of conservation land improvement measures using cost-share assistance.
(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)
Eligible practices--Those conservation land improvement
measures that have been approved by the State Board.
(10)
Landowner--Any person, firm or corporation holding title
to land lying within a SWCD.
(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 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 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 management plan is completely implemented, whichever
period of time is longer.
(12)
Obligated funds--Monies from a SWCD's allocated funds
which have been committed to an applicant after final approval of the application.
(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)
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)
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)
Program year--The period from September 1 to August 31.
(17)
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 Chapter 201 of the Agriculture Code of
Texas.
(18)
State Board--The Texas State Soil and Water Conservation
Board organized pursuant to the provisions of Chapter 201 of the Agriculture
Code of Texas.
(c)
Responsibilities.
(1)
The State Board shall:
(A)
Establish a procedure to allocate funds to designated SWCDs
for their use in cost-share assistance.
(B)
Establish conservation land treatment measures eligible
for cost-share and their standards, specifications, maintenance and expected
life.
(C)
Establish maximum cost-share rate for each conservation
land treatment measure approved for cost-share.
(D)
Establish the minimum cost-share assistance prior to September
1 each year that may be made under the program and the maximum cost-share
assistance that an eligible person may receive under the program in any one
year.
(E)
Perform clerical, administrative and record-keeping responsibilities
required for carrying out the cost-share program.
(F)
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.
(G)
Receive requests for reallocated funds and funds reverted
from participating SWCDs.
(H)
Act on appeals filed by applicants.
(I)
Process vouchers and issue warrants for cost-share to eligible
recipients.
(2)
The SWCDs shall:
(A)
Designate, from State Board approved list, those conservation
land treatment measures that will be eligible for cost-share in their SWCD.
(B)
Administer the cost-share program within the funds allocated
by the State Board.
(C)
Establish, under guidelines of the State Board, the priority
system to be used for evaluation of applications.
(D)
Establish the period(s) of time for accepting applications
and announce the cost-share program locally.
(E)
Accept and process cost-share applications.
(F)
Determine eligibility of lands and persons for cost-share
assistance under guidelines established by the State Board.
(G)
Notify applicants of the district's decisions on approval
of applications.
(H)
Approved applications will be filed in the Districts copy
of the applicant's Water Quality Management Plan.
(I)
Obligate allocated funds for applications receiving final
approval.
(J)
Provide or arrange for technical assistance to applicants,
or approve applicant and provide for an alternate source of technical assistance.
(K)
Certify completed conservation land treatment measures
to the State Board prior to payment.
(L)
Submit required reports on the unobligated balance of allocated
funds and on accomplishments to the State Board.
(d)
Administration of Funds.
(1)
Allocation of Funds. The State Board may allocate funds
appropriated from general revenue fund and other sources for cost-share assistance
among particular soil and water conservation land improvement measures or
among areas of the state and may adjust such allocations throughout the year
as available funds and SWCD needs and priorities change in order to achieve
the most efficient use of state funds. The State Board may designate a portion
of the funds allocated to a SWCD to reimburse the SWCD for obligations incurred
in administering the cost-share program.
(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.
(3)
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.
(e)
Eligibility for Cost-Share Assistance.
(1)
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 and has a certified water quality management plan
on an operating unit within the SWCD shall be eligible for cost-share assistance.
(2)
In accordance with the terms of the maintenance agreement
an eligible person may receive cost share only once for an operating unit.
The State Board on a case by case, project or watershed basis in consultation
with the soil and water conservation district may grant a waiver to this requirement
in situations where:
(A)
Research and/or advanced technology indicates a plan modification
to include additional measures to meet water quality standards is needed;
(B)
The operating unit is significantly increased in size by
the addition of new land areas that require conservation land treatment measures
in order to meet water quality standards;
(C)
More stringent measures become necessary to meet water
quality standards.
(D)
A landowner has assumed the responsibility of a maintenance
agreement in cases where the landowner was not the applicant.
(E)
The life expectancy of the previously cost-shared best
management practice(s) has expired.
(3)
Eligible land. Any of the following categories of land
shall be eligible for cost-share assistance:
(A)
Land within the State that is privately owned by an eligible
person.
(B)
Land leased by an eligible person over which he/she has
adequate control and which land is utilized as a part of his operating unit.
(C)
Land owned by the State, a political subdivision of the
State, or a nonprofit organization that holds land in trust for the state.
(4)
Ineligible lands. Allocated funds shall not be used:
(A)
To reimburse other units of government for implementing
conservation land treatment measures.
(B)
On privately owned land not used for agricultural or silvicultural
production.
(5)
Eligible purposes. Cost-share assistance shall be available
only for those eligible practices measures included in an approved water quality
management plan and determined to be needed by the SWCD to:
(A)
Reduce erosion, and/or
(B)
Improve water quality and/or quantity.
(6)
Eligible practices. Conservation land treatment measures
which the State Board has approved and which are included in the applicant's
approved water quality 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)
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.
(8)
Persons required 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.
(f)
Cost-Share Assistance Processing Procedures.
(1)
Responsibility of applicants. Applicants for cost-share
assistance for conservation land treatment measures shall:
(A)
Complete and submit an application to the SWCD.
(B)
Where an applicant does not have an approved water quality
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)
After being notified of approval and obligation of funds
by the district, request technical assistance through the district to design
and layout the approved practices or request approval of alternate sources
of technical assistance.
(D)
Secure any approved contractor(s) needed and all contractual
or other agreements necessary to construct or perform the approved practice(s).
Cost-share will not be allowed for work begun before the application is approved.
(E)
Complete and sign performance and maintenance agreements
and any amendments to those agreements.
(F)
Supply the documents necessary to verify completion of
the approved practice(s) along with a completed and signed certification of
cost.
(2)
Responsibilities of SWCDs. SWCDs shall:
(A)
Establish the period(s) of time for accepting applications
and announce the cost-share program locally.
(B)
Accept cost-share applications at the SWCD's office.
(C)
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.
(D)
Give initial approval to those applications that meet the
eligibility requirements.
(E)
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.
(F)
Obligate funds for the approved conservation land treatment
measures that can be funded and notify the applicants that his/her conservation
land treatment measure(s) has/have been approved for cost-share and to proceed
with installation. Allocated funds must be obligated by the last day of April
of the fiscal year allocated. All unobligated allocations shall revert back
as of May 1st of that fiscal year.
(G)
Determine compliance with standards and specifications
and certify completed conservation land treatment measure(s) that meet standards.
(3)
Amended Applications for Allocated Funds.
(A)
In the event that an adjustment to the estimated cost of
conservation land treatment measure(s) 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 allocated funds to the
SWCD for approval or denial by the SWCD.
(B)
The SWCD may elect to adjust the amount of funds obligated
for the conservation land treatment measures, provided funds are available,
or to request additional funds from the State Board.
(C)
In the event additional funds are not available, the conservation
land treatment measure(s) 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 conservation land treatment measure(s) in excess
of the amount authorized.
(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 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 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
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
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 required prior to payment.
(6)
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 established
standards.
(B)
The State Board shall issue warrants for payment of cost
share assistance.
(7)
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.
(8)
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.
(9)
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.
(10)
Appeals.
(A)
An applicant may appeal the SWCD decisions relative to
his/her application for allocated funds.
(B)
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.
(C)
The SWCD shall have 60 days in which to make a decision
and notify the applicant in writing.
(D)
The decision of the SWCD may be appealed by the applicant
to the State Board.
(E)
All appeals made to the State Board shall be made in writing
and shall set forth the basis for the appeal.
(F)
All State Board decisions shall be final.
(g)
Maintenance of Practices.
(1)
Requirements for maintenance of practices applied using
cost-share funds will be outlined in the eligible persons water quality management
plan and reviewed with the eligible person at the time of application for
cost-share.
(2)
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 a conservation land treatment measure(s) installed.
(3)
The SWCD will 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)
Failed Practice Restoration.
(A)
When conservation land treatment measures that have been
successfully completed and which later fail as the result of floods, drought,
or other natural disasters, and not the fault of the applicant; the applicant
may apply for and district may allocate additional cost-share funds to restore
them to their original design standards and specifications. These funds cannot
exceed the amount of the original cost-share practice and must come from the
district's current program year allocation.
(B)
When conservation land treatment measures that have been
successfully completed and which later fails as the result of error or omission
on the part of the State Board staff, the SWCD staff, or the Natural Resources
Conservation Service staff while assisting the SWCD, land not the fault of
the applicant; the State Board may approve additional cost-share funds to
restore the measure(s) to the correct design standards and specifications,
where an investigation approved by the Executive Director or his designee
shows good cause. These funds cannot exceed the amount of the original cost-share
practice and must come from the district's current program year allocation.
(5)
In cases of hardship, death of the participant, or at the
time of transfer of ownership of land where a conservation land treatment
measure(s) 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(s) 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.
(h)
Determining Status of Practices During Transfer of Land
Ownership
(1)
A seller of agricultural land with respect to which a maintenance
agreement is in effect may request the SWCD to inspect the practices. If the
practices have not been removed, altered, or modified, the SWCD shall issue
a written statement that the seller has satisfactorily maintained the permanent
practice as of the date of the statement.
(2)
The buyer of lands covered by a maintenance agreement may
also request that the SWCD inspect the lands to determine whether any practice
has been removed, altered, or modified 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.
(3)
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.
(i)
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.
(j)
Pursuant to the Texas Agriculture Code, Section 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 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 June 1, 2006.
TRD-200602999
Mel Davis
Special Projects Coordinator
Texas State Soil and Water Conservation Board
Effective date: June 21, 2006
Proposal publication date: April 14, 2006
For further information, please call: (254) 773-2250, x252