| (a) The Texas State Soil and Water Conservation Board
may enter into and maintain a Memorandum of Understanding with the
Texas Commission on Environmental Quality which sets forth the coordination
of jurisdictional authority, program responsibility, and procedural
mechanisms for point and nonpoint source pollution programs.
(b) Adoption of Memoranda of Understanding between
the Texas State Soil and Water Conservation Board and Texas Commission
on Environmental Quality.
(1) This rule contains the memorandum of understanding
("MOU") between the Texas State Soil and Water Conservation Board
and the Texas Commission on Environmental Quality, which sets forth
the coordination of jurisdictional authority, program responsibility,
and procedural mechanisms for point and nonpoint source pollution
programs.
(A) Whereas, the Texas State Soil and Water Conservation
Board (the Board) is the lead agency in this state for planning, management,
and abatement of agricultural and silvicultural nonpoint source pollution;
and
(B) Whereas, the Board shall represent the State before
the United States Environmental Protection Agency (EPA), or other
federal agencies on all matters relating to the planning, management,
and abatement of agricultural and silvicultural nonpoint source pollution
abatement; and
(C) Whereas, for purposes of this MOU, the Board is
responsible for nonpoint source pollution abatement and prevention
activities on all agricultural and silvicultural land as required
by Texas Water Code §26.1311; and
(D) Whereas, the Board has established and implemented
a water quality management plan (WQMP) certification program, in accordance
with Texas Agriculture Code §201.026(g) for agricultural and
silvicultural lands; and
(E) Whereas, the Texas Commission on Environmental
Quality (the Commission) is the state agency with primary responsibility
for implementing the constitution and laws of the State related to
the quality of water and air; and
(F) Whereas, the Commission shall coordinate all its
activities related to this MOU with the Board; and
(G) Whereas, consistent with the intent of Federal
Clean Water Act §319, the Board and the Commission are committed
to coordinate and jointly administer the development and implementation
of the Texas Nonpoint Source Management Program; and
(H) Whereas the Board and the Commission are independently
and directly awarded equal halves of the annual Federal Clean Water
Act §319 grant program for nonpoint source pollution by the EPA,
both agencies independently coordinate and administer the preparation
of work projects under the grant; and
(I) Whereas, for the purpose of this MOU, the Commission
is responsible for the enforcement of all laws of the State related
to water and air quality including point source and nonpoint source
pollution regulations, including agricultural and silvicultural lands;
and
(J) Whereas, consistent with Texas law and public policy,
the Board and Commission mutually desire to protect and maintain a
high quality environment and the health of the people of the State;
therefore
(2) Now the Parties agree as follows:
(A) The Commission agrees to:
(i) Coordinate and administer the preparation of grant
work projects for the Federal Clean Water Act §319 grant program
that primarily target nonpoint source pollution from sources other
than agriculture and silviculture.
(ii) Execute cooperative agreements, associated amendments,
grant awards, and contracts related to grant work projects coordinated
and administered by the Commission. For those grant work projects,
the Commission is independently responsible for monitoring, implementation,
and providing EPA with the required financial and programmatic reporting
information.
(iii) Implement the provisions of the EPA approved
Texas Nonpoint Source Management Program for non-agricultural/silvicultural
surface and ground water nonpoint source pollution.
(iv) Develop and maintain state guidance for all nonpoint
source pollution abatement projects other than agricultural or silvicultural
nonpoint source pollution projects as described by this MOU.
(v) Coordinate with the Board those compliance and
enforcement actions dealing with agricultural and silvicultural pollution.
(vi) Provide to the Board all current forms, timetables,
procedural rules, and any policy documents of the Commission for addressing
and processing citizen complaints related to agricultural and silvicultural
pollution.
(vii) Refer to the Board complaints concerning violations
of a WQMP or violations of laws or rules relating to agricultural
or silvicultural nonpoint source pollution under the jurisdiction
of the Board, except for any person referred to the Commission for
enforcement action pursuant to clause (ix) of this subparagraph.
(viii) Retain the responsibility for pursuing any enforcement
action related to a violation of state environmental laws and regulations,
inclusive of rules, orders, and nonpoint source pollution regulations
(including those applied to agricultural and silvicultural lands).
(ix) Pursue appropriate enforcement action in accordance
with Commission rules against any person referred in accordance with
paragraphs (4) and (5) of this subsection.
(x) Ensure that any operation that was previously referred
to the Commission by the Board for environmental non-compliance and
subsequent decertification of a WQMP has resolved any Commission enforcement
issues prior to referring the operation to the Board for WQMP development
or investigation. Any such referral shall be accompanied by a letter
to the Board stating the operation has resolved its Commission regulated
environmental compliance issues.
(B) The Board agrees to:
(i) Coordinate and administer the preparation of grant
work projects for the Federal Clean Water Act §319 grant program
that primarily target nonpoint source pollution from agricultural
and silvicultural sources.
(ii) Execute cooperative agreements and associated
amendments; and grant awards and contracts relating to grant work
projects coordinated and administered by the Board. For those grant
work projects, the Board is independently responsible for monitoring,
implementation, and providing EPA with the required financial and
programmatic reporting information.
(iii) Implement the provisions of the EPA approved
Texas Nonpoint Source Management Program for agricultural/silvicultural
surface and ground water nonpoint source pollution.
(iv) Provide the EPA with required reports for all
agricultural/silvicultural projects funded through the Board by the
Federal Clean Water Act §319. Reports will be submitted in accordance
with EPA requirements.
(v) Develop and maintain state guidance for agricultural
or silvicultural nonpoint source pollution as described by this MOU
and 31 TAC §523.1.
(vi) Provide to the Commission information about agricultural
and silvicultural activities required for the annual evaluation of
the state's implementation of the Texas Nonpoint Source Management
Program.
(vii) Process citizen complaints related to agricultural
and silvicultural nonpoint source pollution in a manner that is consistent
with the practices and standards of the Commission.
(viii) Schedule and conduct management meetings with
the EPA to review the status of agricultural and silvicultural nonpoint
source pollution project activities as negotiated with EPA.
(ix) Develop and maintain a current electronic database
to track and document all WQMPs. Data recorded for each WQMP will
include, but is not limited to, the name of the WQMP applicant(s),
the facility address or location, date of the WQMP application request,
the type of operation covered by each WQMP, and the approval date
of each WQMP.
(x) Provide the Commission with documentation Board
rules, policies, guidance, etc. concerning the development, supervision,
and monitoring of individual certified WQMPs.
(xi) Investigate complaints concerning violations of
a WQMP or violations of laws or rules relating to agricultural or
silvicultural nonpoint source pollution under the jurisdiction of
the Board, except for any person referred to the Commission for enforcement
action pursuant to paragraph (1)(I) of this subsection.
(xii) Refer to the Commission violations of a WQMP
or violations of laws or rules relating to agricultural or silvicultural
nonpoint source pollution under the jurisdiction of the Board, where
the Board has determined that the necessary corrective action has
not been taken. The Board, upon referral, shall provide the Commission
documentation, including but not limited to, any original documents
or Board certified copies of the original documents; and hard copies
of all photographs, correspondence, records, and other documents relating
to the violation.
(C) Both parties agree to:
(i) Maintain each party's existing level of effort
required by the EPA for the implementation of Federal Clean Water
Act §319 projects.
(ii) Communicate and coordinate directly with each
other and the EPA on matters relating to project planning and implementation
of nonpoint source pollution projects funded by Federal Clean Water
Act §319.
(iii) Provide required reports to the EPA on nonpoint
source pollution project activities. Reports will include status of
project implementation, summary of information/education activities,
monitoring activities, and other outputs satisfactory to EPA.
(iv) Meet annually to review and discuss the state's
nonpoint source water quality program and to refine agency coordination
mechanisms.
(v) Work together to develop and implement water quality
management programs that satisfy State water quality standards as
established by the Commission.
(vi) Comply with all relevant state and federal rules
and regulations; and grant conditions, including financial audits,
data quality assurance, quality control, and progress reports.
(vii) Cooperate on activities related to the implementation
of the "Texas State Management Plan for Prevention of Pesticide Contamination
of Groundwater."
(viii) Coordinate on inspection and enforcement activities
relating to animal feeding operations (AFOs) authorized under 30 TAC §321.47
or a WQMP certified by the Board in accordance with Texas Agriculture
Code §201.026(g) for the protection of water quality in the State.
(ix) Coordinate on inspection and enforcement activities
for the protection of water quality in the State relating to dry litter
poultry concentrated animal feeding operations (CAFOs) authorized
under 30 TAC Chapter 321 and a Board certified WQMP.
(x) Cooperate to establish protocols for the coordination
of activities related to complaint response, compliance inspections,
and enforcement of AFOs and CAFOs operating under a Board certified
WQMP.
(xi) Conduct interagency meetings annually with regional
office staff of both agencies to review and update the AFO and dry
litter poultry CAFO complaint/referral process and to refine agency
coordination procedures.
(3) Coordination on Dry Litter Poultry CAFOs:
(A) The Board is the lead agency and has primary responsibility
for complaint investigations and compliance inspections to determine
if a dry litter poultry CAFO meets the requirements of a Board certified
WQMP and CAFO regulations.
(B) The Board shall perform a number of dry litter
poultry CAFO compliance inspections to be negotiated annually with
the Commission. The Board will provide documentation of such activities
to the Commission on a quarterly basis.
(C) For any dry litter poultry CAFO operating under
a Board certified WQMP, the Board shall investigate in a timely manner
all water quality complaints and the first odor complaint where none
has been received by either the Commission or the Board within the
previous twelve (12) months.
(D) The Commission shall investigate within eighteen
(18) hours the second and all subsequent odor complaints for a rolling
twelve (12) month period at any dry litter poultry CAFO operating
under a Board certified WQMP.
(E) The Board shall refer to the Commission for possible
enforcement action violations at dry litter poultry CAFOs regardless
of WQMP certification status if it involves:
(i) failure to obtain authorization under an individual
or general permit if evidence of a discharge is observed; or
(ii) unauthorized discharge(s) into or adjacent to
surface water in the State; or
(iii) failure to notify Commission of any discharge;
or
(iv) failure to maintain water quality buffers; or
(v) failure to completely implement nutrient management
practices required by CAFO rules and the WQMP; or
(vi) failure to completely implement mortality management
practices required by the WQMP; or
(vii) operating a commercial poultry operation without
the required WQMP; or
(viii) a documented nuisance odor violation; or
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