SECTION 523.5. Memorandum of Understanding between the Texas State Soil and Water Conservation Board and the Texas Commission on Environmental Quality

(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

(ix) chronic violations for failure to implement WQMP practices required to meet CAFO rules under 30 TAC Chapter 321, Subchapter B.

(F) The Board shall perform follow-up compliance inspections at dry litter poultry CAFOs found out of compliance with their WQMP to verify that the operation has returned to compliance with the Board-certified WQMP and CAFO regulations.

(4) Coordination on AFOs:

(A) The Board is the lead agency and has primary responsibility for agricultural or silvicultural nonpoint source pollution abatement resulting from all AFOs, as defined under 30 TAC Chapter 321, Subchapter B (relating to concentrated animal feeding operations) that are not designated as CAFOs or otherwise required to operate under a water quality permit issued by the Commission.

(B) The Board shall investigate water quality complaints and monitor compliance of all AFOs regardless of their participation in the WQMP Program. The Board shall also investigate the first odor complaint, where none has been received by the Commission or the Board within the previous twelve (12) months, at any dry litter poultry AFO operating under a Board-certified WQMP.

(C) The Commission, upon receiving a general water quality complaint regarding an AFO, will determine if the AFO is required to obtain authorization pursuant to 30 TAC Chapter 321, Subchapter B (relating to Control of Certain Activities by Rule). If the determination by the Commission indicates the facility does not meet the definition of a CAFO or otherwise require a water quality permit, the complaint and any written documentation will be referred to the Board, except for any person referred to the Commission for enforcement action pursuant to paragraph (1)(I) of this subsection. Additionally, 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 AFO.

(D) The Board, upon receiving a general complaint regarding an AFO, will investigate to determine whether such a facility will need to obtain authorization from the Commission or initiate corrective actions to avoid impacts to aquatic life or human health. Those facilities that are determined to require authorization from the Commission pursuant to 30 TAC Chapter 321, Subchapter B (relating Control of Certain Activities by Rule) will be referred to the Commission in writing within five working days from the date of the investigation.

(E) The Board shall refer an AFO to the Commission for possible enforcement action, if the complaint investigation determines that the potential for a water quality violation exists at a facility and the facility owner or operator does not submit a request for a Board certified WQMP to resolve the complaint within 45 days of notification of the investigation outcome or does not implement appropriate corrective action.

(F) When the owner or operator of an AFO fails to sign a WQMP that was developed to resolve a complaint involving a potential water quality violation within 90 days of signing a request for planning assistance, the Board shall refer the AFO to the Commission for possible enforcement action.

(G) The Board shall refer to the Commission for possible enforcement any AFO complaint received where there is evidence of a discharge.

(H) The Board shall refer to the Commission for possible enforcement action, regardless of WQMP status, any investigation and documentation by the Board of a complaint related to an AFO where there is a documented violation that causes a discharge of pollutants to the air, water, or land that causes serious impact to the environment; or affects human health and safety.

(I) The Board shall refer to the Commission for possible enforcement action, regardless of WQMP status, any violation related to an AFO that 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 complaint or violation.

(5) General conditions:

(A) Term of MOU. The term of this MOU shall be from the effective date until termination.

(B) Notice of Termination. Either party may terminate this MOU upon 90-day written notice to the other party. Only upon written concurrence of the other agency can this MOU be modified.

(C) Cooperation of Parties. It is the intention of the Board and the Commission that the details of providing the services in support of this MOU shall be worked out, in good faith, by both agencies.

(D) Nondiscrimination. Activities conducted under this MOU will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987, and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and the Americans With Disabilities Act of 1992, which provide that no person in the United States shall, on the grounds of race, color, national origin, age, sex, religion, marital status, or handicap be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial assistance.

(E) Notices. Any notices required by this MOU shall be in writing and addressed to the respective agency as follows: Texas Commission on Environmental Quality, Attn: _______________, P.O. Box 13087, Austin, TX 78711-3087 and to the Texas State Soil and Water Conservation Board, Attn: _______________, P.O. Box 658, Temple, TX 76503-0658.

(F) Effective Date of MOU. This MOU is effective upon execution by both agencies. By signing this MOU, the signatories acknowledge that they are acting under proper authority from their governing bodies. Adopted [insert date] Effective [insert date]

Source Note: The provisions of this §523.5 adopted to be effective March 30, 1994, 19 TexReg 1830; amended to be effective March 21, 2004, 29 TexReg 2652; amended to be effective February 23, 2016, 41 TexReg 1253