TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 17. TEXAS STATE SOIL AND WATER CONSERVATION BOARD

CHAPTER 523. AGRICULTURAL AND SILVICULTURAL WATER QUALITY MANAGEMENT

31 TAC §523.6

The Texas State Soil and Water Conservation Board (State Board) proposes to amend §523.6.

Section 523.6(f)(2) is being offered to cover conflict of interest by describing who is ineligible for cost-share (financial assistance) agreement while employed by the State Board or serving as a member of the State Board.

Section 523.6(f)(3) is offered to set the procedures conflict of interest district directors and district directors must follow to avoid conflict of interest.

Section 523.6(f)(3)(A) addresses the procedure district directors and district must follow to avoid conflict of interest.

Section 523.6(f)(3)(B) directs districts that their meeting minutes must reflect that district directors or district employees recluse themselves from any discussion or deliberation of WQMP contract involving themselves and did not exert any influence on the deliberations.

Section 523.6(f)(3)(C) directs that the same prohibitions in apply in certifying work on a contract and may not certify payment for any financial assistance regarding a contract.

Section 523.6(f)(2) is amended to be §523(f)(4).

Section 523.6(f)(3) through §523.6(f)(8) are revised to be §523.6(f)(5) through §523.6(f)(10) respectively.

Rex Isom, Executive Director, has determined that for the first five-year period the proposed amendments will be in effect, there will be no fiscal implications for state or local governments as a result of enforcing or administering the rule.

Mr. Isom has also determined that for each year of the first five years the rule is in effect, the public benefit anticipated as a result of enforcing or administering the rule will be to help the board protect the public. There will be no economic costs to persons required to comply with this rule. There will be no effect on small businesses or local economies.

Comments on the proposed amendments may be submitted to Lee Munz, Regional Office Coordinator, Texas State Soil and Water Conservation Board, 1497 Country View Lane, Temple, Texas 76504, within 30 days of publication of this these proposed amendments in the Texas Register. Comments may also be submitted via fax to (254) 773-3311 or via email to lmunz@tsswcb.texas.gov.

The amendments are proposed under Texas Agriculture Code, Title 7, Chapter 201, §201.020 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 Chapter 201, Texas Agriculture Code.

No other code, article or statutes are affected by this amendment.

§523.6.Cost-Share Incentive Funding for Soil and Water Conservation Land Improvement Measures.

(a) Purpose. The purpose of cost-share funding is to provide an incentive to landowners or operators to install soil and water conservation land improvement measures consistent with the purpose of controlling erosion, conserving water, and/or protecting water quality in accordance with a water quality management plan certified by the State Board.

(b) - (e) (No change.)

(f) Eligibility for Cost-Share Incentive Funding.

(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 a SWCD shall be eligible for cost-share incentive funding.

(2) Ineligible for Cost-Share Assistance. State Board Members and State Board Employees are governed by a July 17, 2003, State Board policy that prohibits persons employed by the State Board and members of the State Board from entering into a cost-share (financial assistance) agreement while employed or serving on the State Soil and Water conservation Board.

(3) Conflict of Interest for Cost-Share Assistance. District Directors and District Employees must follow all WQMP guidelines, complete all required WQMP forms, and recuse themselves from any and all discussions and considerations of the application for a WQMP contract.

(A) District Directors and District Employees must recuse themselves in any situation in which a relative, as defined by Chapter 573, Government Code, Nepotism Prohibitions, has applied for a WQMP contract.

(B) SWCD Board minutes are required to reflect that any District Director or District Employee recuse himself/herself from the deliberation on a contract and there was no undue influence regarding consideration of a contract.

(C) These same prohibitions apply to certifying work performed on a contract and any certification for payment of financial assistance under an approved WQMP contract.

(4) [(2)] In accordance with the terms of this chapter 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 and in consultation with the SWCD, may grant a waiver to this requirement in situations where:

(A) Research and/or advanced technology indicate(s) a plan modification to include additional measures to meet Texas surface water quality standards is needed;

(B) The operating unit is significantly increased in size by the addition of new land areas or the amount of animal waste production is significantly increased requiring additional conservation practices, not previously cost-shared, in order to meet Texas surface water quality standards;

(C) The operating unit is significantly increased in size by the addition of new land areas or the amount of animal waste production is significantly increased requiring additional conservation practices, not previously cost-shared, in order to meet Texas surface water quality standards;

(D) A landowner has assumed the responsibility of a maintenance agreement in cases where the landowner was not the applicant; or

(E) A landowner has previously received cost-share through this program but an additional practice or practices has/have been subsequently mandated by state law or the laws, rules, or regulations of a political subdivision. This waiver is only applicable to the mandated practice or practices and may not be applied more than one time to a single practice.

(5) [(3)] Eligible land. Any of the following categories of land shall be eligible for cost-share incentive funding:

(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/her 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.

(6) [(4)] Ineligible lands. Allocated funds shall not be used:

(A) To reimburse other units of government for implementing conservation practices.

(B) On privately owned land not used for agricultural or silvicultural production.

(7) [(5)] Eligible purposes. Cost-share incentive funding shall be available only for those eligible practice measures included in a certified 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

(8) [(6)] Eligible practices. Conservation practices 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 incentive funding. The list of eligible practices will be approved as needed by the State Board. 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 cost-share incentive funding for conservation practices not included in the State Board's list of approved practices. The use of special conservation practices is limited to those measures that can solve unique problems in a SWCD and which conform with one or more of the purposes of the program. Requests for special conservation practices 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 availability of cost-share incentive funding locally for the program year. Conservation practices may be included in the SWCD's list of eligible practices offered for cost-share incentive funding only as approved by the State Board.

(9) [(7)] Requirement to file an application. In order to qualify for cost-share incentive funding, an eligible person shall file an application with the local SWCD.

(10) [(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.

(g) - (k) (No change.)

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on June 5, 2017.

TRD-201702173

Mel Davis

Special Projects Coordinator

Texas State Soil and Water Conservation Board

Earliest possible date of adoption: July 16, 2017

For further information, please call: (254) 773-2250 x252