Section 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) Definitions. For the purposes of this section the following definitions shall apply. (1) Allocated funds--Funds budgeted through the State Board either allocated directly to a specific soil and water conservation district or to a cost-share incentive priority for utilization by multiple soil and water conservation districts. For the purposes of the chapter, funds directly allocated to a specific soil and water conservation district shall be referred to as a direct allocation.(2) Applicant--A person who applies for cost-share incentive funding from the soil and water conservation district.(3) Available funds--Monies budgeted, unobligated and approved by the State Board for cost-share incentive funding.(4) Conservation practice(s)--The conservation land improvement 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 incentive funding--An award of money made to an eligible person for conservation land improvement measures pursuant to the terms of Agriculture Code § 201.301.(6) Cost-share incentive priority--A geographic location such as a watershed, a soil and water conservation district or other political subdivision boundary, or a specific agricultural or silvicultural activity, or a combination thereof, that is adopted by the State Board as a specified priority for receiving an allocation of cost-share incentive funding. Cost-share incentive priorities must be consistent with the purpose of controlling erosion, conserving water, and/or protecting water quality.(7) District director--A member of the governing board of a soil and water conservation district.(8) Eligible land--Those lands that are eligible for application of conservation land improvement measures using cost-share incentive funding.(9) Eligible person--Any of the land holders eligible to apply for cost-share incentive funding or any person designated to represent the applicant as provided by a durable power of attorney, court order or other valid legal document.(10) Eligible practices--Those conservation land improvement measures that have been approved by the State Board.(11) Landowner--Any person, firm or corporation holding title to land lying within a soil and water conservation district.(12) Maintenance agreement--A written agreement between the eligible person and the soil and water conservation district wherein the eligible person(s) agrees to implement and maintain all conservation practices included in the water quality management plan in accordance with the implementation schedule, all technical requirements of the applicable practice standards, and specified life expectancies of practices until such time that the certification of the State Board is withdrawn. The maintenance agreement shall specify that any practices installed through the payment of cost-share incentive funding, to any extent, must be maintained in accordance with the applicable practice standards and specified life expectancies regardless of whether or not the water quality management plan continues to be certified or not. Failure to maintain cost-shared practices may result in the requirement for all or a prorated portion of the cost-share funding to be returned to the State Board. It is the expectation of the State Board that a water quality management plan be maintained by the landowner for an indefinite period of time.(13) Obligated funds--Monies from a soil and water conservation district's allocated funds or from a cost-share incentive priority which have been committed to an applicant after final approval of the application.(14) Operating Unit--Land or lands, whether contiguous or non-contiguous, owned and/or operated in a manner that contributes or has the potential to contribute agricultural or silvicultural nonpoint source pollution to water in the state. An operating unit must be determined through mutual agreement by the holder of the water quality management plan, the soil and water conservation district, and the State Board. (A) Contiguous lands under the same ownership and/or operational control must be considered one operating unit.(B) Non-contiguous lands under the same ownership and/or operational control may be considered as more than one operating unit when there is mutual agreement by the soil and water conservation district and the potential holder of the water quality management plan unless the lands are associated with an animal feeding operation.(C) An operating unit, when devised for an animal feeding operation, must at a minimum encompass all land or lands owned and/or operated by the holder of the water quality management plan that are used to produce feed that is consumed by the animals, as well as all land or lands owned and/or operated by the potential holder of the water quality management plan where manures or other agricultural by-products are beneficially used as a source of nutrients to produce food or fiber for any use.(D) Land or lands within the scope of an existing operating unit for certified water quality management plan may not be separated from the existing operating unit to establish another operating unit unless the ownership of the lands being separated into a new operating unit has changed.(E) Where mutual agreement regarding an operating unit's consistency with this section is not achieved by the potential holder of the water quality management plan, the soil and water conservation district, and the State Board, the State Board will make a final determination whether or not to certify the water quality management plan.(15) Performance agreement--A written agreement between the eligible person and the soil and water conservation district wherein the eligible person agrees to perform conservation land improvement measures for which allocated funds are being paid.(16) Practice standard--A technical specification for a conservation practice within the NRCS FOTG that contains information on why and where the practice should be applied, and sets forth the minimum quality criteria that must be met during the application of that practice in order for it to achieve its intended purpose(s).(17) Priority system--The system devised by the soil and water conservation district, under guidelines of the State Board, for ranking approved conservation practices and for facilitating the disbursement of allocated funds in line with the soil and water conservation district's priorities.(18) Program year--The period from September 1 to August 31.(19) Soil and water conservation district (SWCD)--A governmental subdivision of this state and a public body corporate and politic, organized pursuant to Chapter 201 of the Agriculture Code.(20) State Board--The Texas State Soil and Water Conservation Board organized pursuant to Chapter 201 of the Agriculture Code.(c) Stakeholder Process. The State Board shall use a stakeholder process to develop cost-share incentive priorities, goals and performance measures for cost-share incentive priorities, and routinely share the results of program activities with stakeholders to gather input for program improvement actions.(d) Responsibilities. (1) The State Board shall: (A) Establish a procedure to allocate funds to a specific SWCD or to cost-share incentive funding priorities for utilization by multiple soil and water conservation districts.(B) Establish conservation practices eligible for cost-share incentive funding and their standards, specifications, maintenance and expected life.(C) Establish maximum cost-share rate for each conservation practice approved for cost-share incentive funding.(D) Establish, prior to September 1 of each year, the minimum cost-share incentive funding amount that may be made under the program and the maximum cost-share incentive funding amount that an eligible person may be obligated from in any one program year.(E) Provide verification to a SWCD that an application qualifies for cost-share incentive funding from a selected cost-share incentive priority prior to SWCD obligation of funds.(F) Perform clerical, administrative and record-keeping responsibilities required for carrying out cost-share incentive funding activities.(G) Receive and maintain monthly reports from SWCDs which have been directly allocated an amount of cost-share incentive funding showing the unobligated balance of allocated funds as shown on each ledger at the close of the last day of each month.(H) Receive requests for reallocated funds and funds reverted from participating SWCDs that received a direct allocation.(I) Act on appeals filed by applicants.(J) Process vouchers and issue warrants for cost-share to eligible recipients.(2) The SWCDs shall: (A) Designate, from State Board approved list, those conservation practices that will be eligible for cost-share incentive funding in their SWCD.(B) Administer cost-share incentive funding with funds allocated by the State Board if the SWCD received a direct allocation.(C) Establish, under guidelines of the State Board, the priority system to be used for evaluation of applications for incentive funding through a direct allocation to the SWCD, and to be used for evaluation of applications for cost-share incentive priorities.(D) Establish the period(s) of time, under the guidelines of the State Board, for accepting applications and announce the availability of cost-share incentive funding locally.(E) Accept and process cost-share incentive funding applications.(F) Determine eligibility of lands and persons for cost-share incentive funding under guidelines established by the State Board.(G) Notify applicants of the SWCD's decisions on approval of applications.(H) File approved applications in the SWCD's 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 practices to the State Board prior to payment.(L) Submit required reports on the unobligated balance of directly allocated funds and on accomplishments to the State Board.(e) Administration of Funds. (1) Allocation of Funds. The State Board may allocate funds appropriated from general revenue fund and other sources for cost-share incentive funding among particular soil and water conservation land improvement measures, specific SWCDs, among areas of the state through cost-share incentive priorities, or a combination thereof, 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 or to cost-share incentive priorities to reimburse SWCDs for obligations incurred in administering cost-share incentive activities.(2) Approval of Cost-share Incentive Priority Allocations. The State Board may allocate cost-share incentive funding to priorities identified by the State Board, local SWCDs through the stakeholder process described at subsection (c) of this section, and other entities. Higher consideration will be given to priorities recommended through the stakeholder process. Priorities will be approved consistent with the purpose of cost-share incentives specified at subsection (a) of this section. A cost-share incentive priority shall exist for no more than two program years without re-approval by the State Board.(3) Requests for Direct Allocations. SWCDs within areas designated for cost-share program may submit requests for a direct cost-share incentive fund allocation to the State Board. Such requests must be submitted by September 1st of each program year, and must include a description of how the allocation will control soil erosion, conserve water, and/or protect water quality. Allocations requested to address documented problems with water quality will be considered before other requests, and any request will be subject to the availability of funds after allocations are made to approved cost-share incentive priorities as described in paragraph (2) of this subsection.(4) Approval of Direct Allocations to SWCDs. The State Board shall consider and approve, reject or adjust SWCD requests for direct allocations giving consideration to the amount of available funding not already allocated to cost-share incentive priorities, relative need for funding and SWCD workload and fund balances, as well as other information deemed necessary by the State Board. Only SWCDs for which the State Board has established an allocation are eligible to directly claim cost-share incentive funds.(5) Maximum Allowable Amount of Cost-Share Funds per Operating Unit. The maximum allowable amount of cost-share funds that may be applied to any single operating unit will be adopted by the State Board prior to the beginning of each biennium. This provision applies only to general revenue funds appropriated by the Texas Legislature to assist program participants with the implementation of soil and water conservation land improvement measures as allowed by Agriculture Code § 201.301. In cases where the funding for cost-share incentives originates from sources other than appropriations made directly to this program by the Texas Legislature, the maximum allowable amount of cost-share incentive funding per operating unit will be established by the terms of the contractual agreement providing the funds until otherwise specified by the State Board.(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) 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) More stringent measures become necessary 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) 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) 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) 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) 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 a SWCD's list of eligible practices offered for cost-share incentive funding only as approved by the State Board.(9) 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) 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) Cost-Share Incentive Funding Processing Procedures. (1) Responsibility of applicants. Applicants for cost-share incentive funding for conservation practices 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 SWCD, request technical assistance through the SWCD 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, under the guidelines of the State Board, and announce the availability of cost-share incentive funding locally.(B) Accept cost-share applications at the SWCD's office.(C) Determine eligibility of lands and persons for cost-share incentive funding under either the SWCD's local program for a direct allocation or under a cost-share incentive priority. 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 either the SWCD's priority system for a direct allocation or under a cost-share incentive priority and give final approval to the high priority applications that can be funded.(F) For applications that may qualify for a cost-share incentive priority, submit the applications to the appropriate State Board office for confirmation of qualification and availability of funds.(G) Obligate funds for the approved conservation practices that can be funded and notify the applicant(s) that his/her conservation practice(s) has/have been approved for cost-share incentive funding and to proceed with installation. Allocated funds must be obligated by the last day of April of the fiscal year allocated. All unobligated allocations, regardless of whether they exist in a direct SWCD allocation or a cost-share incentive priority, shall become unallocated on May 1st of each year and may be reallocated to other priorities at the discretion of the State Board to ensure the most efficient use of cost-share incentive funds.(H) 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 practice(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. If the obligated funds originate from a cost-share incentive priority, the SWCD will confer with the State Board to determine if additional funds are available.(B) The SWCD may elect to adjust the amount of funds obligated for the conservation practices, provided funds are available, or to request additional funds from the State Board. If the obligated funds originate from a cost-share incentive priority, the SWCD will confer with the State Board to determine if additional funds are available.(C) In the event additional funds are not available, the conservation practice(s) may be redesigned, if possible, to a level commensurate with available funds, provided the redesign still meets practice standards established by the State Board; or the applicant can agree to assume full financial responsibility for the portion of the cost of conservation practice(s) in excess of the amount authorized.(4) Performance Agreement. As a condition for receipt of cost-share incentive funding for conservation practices, the eligible person receiving the benefit of such incentive funding shall agree to perform those measures in accordance with standards established by the State Board. Completion of the performance agreement and the signature of the eligible person are required prior to payment.(5) Maintenance Agreement. A written maintenance agreement must be signed between the eligible person and the soil and water conservation district wherein the eligible person(s) agrees to implement and maintain all conservation practices included in the water quality management plan in accordance with the implementation schedule, all technical requirements of the applicable practice standards, and specified life expectancies of practices until such time that the certification of the State Board is withdrawn. The maintenance agreement shall specify that any practices installed through the financing of cost-share incentive funding, to any extent, must be maintained in accordance with the applicable practice standards and specified life expectancies regardless of whether or not the water quality management plan continues to be certified or not. Failure to maintain cost-shared practices may result in the requirement for all or a prorated portion of the cost-share funding to be returned to the State Board. 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 incentive funding, 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 incentive funding.(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 year 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 incentive funding by notifying the SWCD in writing that withdrawal is desired. Applications withdrawn by the applicant shall be retained in the records of the SWCD 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.(h) Maintenance of Practices. (1) Requirements for maintenance of practices applied using cost-share incentive funds will be outlined in the eligible person's water quality management plan and reviewed with the eligible person at the time of application.(2) A properly executed maintenance agreement shall be signed by the successful applicant prior to receipt of payment of cost-share incentive funding from the SWCD for a conservation practice(s) installed.(3) The SWCD will request refund of all or a prorated portion of the cost-share incentive funding paid to an eligible person when the applied conservation practice(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 practices 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 SWCD may allocate additional cost-share incentive funds to restore them to their original design standards and specifications. These funds must come from either a current direct allocation to the SWCD or from a current cost-share incentive priority with confirmation from the State Board from the current program year.(B) When conservation practices that have been successfully completed and which later fail as the result of error or omission on the part of the State Board staff, the SWCD staff, or the USDA-Natural Resources Conservation Service staff while assisting the SWCD, and not the fault of the applicant, the State Board may approve additional cost-share incentive 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 must come from either a current direct allocation to the SWCD or from a current cost-share incentive priority with confirmation from the State Board from the current program year.(5) In cases of hardship, death of the participant, or at the time of transfer of ownership of land where a conservation practice(s) has been applied using cost-share incentive funding 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 prorated portion of the cost-share incentive funds received for the practice as determined by the SWCD. The State Board on a case-by-case basis in consultation with the SWCD may grant a waiver to this requirement.(i) 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.(j) Reporting and Accounting. The State Board shall receive and maintain required reports from SWCDs showing the unobligated balance of directly allocated funds as shown on each ledger at the close of the last day of each month.(k) Pursuant to Agriculture Code § 201.311, one or more SWCDs may be designated to administer portions of this section as determined by the State Board.31 Tex. Admin. Code § 523.6
The provisions of this §523.6 adopted to be effective May 23, 1994, 19 TexReg 3496; amended to be effective June 22, 1995, 20 TexReg 4270; amended to be effective June 20, 2000, 25 TexReg 5913; amended to be effective November 13, 2000, 25 TexReg 11291; amended to be effective March 11, 2004, 29 TexReg 2367; amended to be effective April 26, 2005, 30 TexReg 2400; amended to be effective June 21, 2006, 31 TexReg 4867; amended to be effective December 23, 2008, 33 TexReg 10325; amended to be effective July 8, 2013, 38 TexReg 4384; Amended by Texas Register, Volume 42, Number 32, August 11, 2017, TexReg 3976, eff. 8/15/2017; Amended by Texas Register, Volume 48, Number 31, August 4, 2023, TexReg 4267, eff. 8/13/2023