Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO: KRS 146.080- 146.115, 224.71-100-224.71-140,
262.010 - 262.660
NECESSITY, FUNCTION, AND CONFORMITY: KRS 146.110 through
146.115 authorize the Soil and Water Conservation Commission to promulgate
administrative regulations governing administration of the Kentucky Soil
Erosion and Water Quality Cost-share Fund, which provides cost-share assistance
to persons engaged in agricultural and silvicultural production for
implementation of best management practices for purposes such as providing
cleaner water through the reduction in the loading of sediment, nutrients, and
pesticides in Kentucky streams, rivers, and lakes; reducing the loss of topsoil
vital to the sustained production of food and fiber; and preventing surface
water and groundwater pollution. This administrative regulation establishes
criteria for participation in that cost-share program.
Section 1. Definitions.
(1) "Agricultural or silvicultural
production" means any farm operation on a tract of land, including all
income-producing improvements and farm dwellings, together with other farm
buildings and structures incident to the operation and maintenance of the farm,
used for the production of livestock, livestock products, poultry, poultry
products, milk, milk products, or silviculture products, or for the growing of
crops such as tobacco, corn, soybeans, small grains, fruit, and vegetables; or
devoted to and meeting the requirements and qualifications for payments to
agriculture programs under an agreement with the state or federal
government.
(2) "Agriculture water
quality plan" is defined by KRS 224.71-100(10).
(3) "Animal waste" means feces, urine, or
other excrement, digestive emission, urea, or similar substance emitted by
animals (including any form of livestock, poultry, or fish). This includes
animal waste that is mixed or commingled with bedding, compost, feed, soil, or
any other material typically found with this waste.
(4) "Applicant" means a person who applies
for cost-share assistance from the Kentucky Soil Erosion and Water Quality
Cost-share Fund.
(5) "Available
funds" means moneys budgeted, unobligated, and distributed to the commission
for the purposes of KRS 146.115.
(6) "Best management practices" means, for
agricultural or silvicultural production, the most effective, practical, and
economical means of reducing and preventing water pollution provided by the
United States Department of Agriculture Natural Resources Conservation Service
and the Soil and Water Conservation Commission.
(7) "Case file" means the collection of
materials that are assembled and maintained for each application for cost-share
assistance.
(8) "Conservation
district" or "district" is defined by KRS 262.010(3).
(9) "Cost-share assistance" means cost-share
funds awarded by the commission from the Kentucky Soil Erosion and Water
Quality Cost-share Fund.
(10)
"District supervisor" means a member of the governing board of a conservation
district.
(11) "Eligible land"
means land on which agricultural or silvicultural production is being
conducted.
(12) "Groundwater" means
subsurface water occurring in the zone of saturation beneath the water table
and any perched water zones below the B soil horizon.
(13) "Performance and maintenance agreement"
means a written agreement between an eligible person and the district in which
the eligible person agrees to implement and to maintain the best management
practices for which cost-share assistance is being awarded.
(14) "Program year" means the period from
July 1 to June 30.
(15) "Soil and
Water Conservation Commission" or "commission" means the commission established
by KRS 146.090.
(16) "Surface
water":
(a) Means those waters having
well-defined banks and beds, either constantly or intermittently flowing; lakes
and impounded waters, marshes, and wetlands; and any subterranean waters
flowing in well-defined channels and having a demonstrable hydrologic
connection with the surface; and
(b) Does not mean effluent ditches and
lagoons used for waste treatment that are situated on property owned, leased,
or under valid easement by a permitted discharger.
(17) "Water priority protection region" means
an area specifically delineated where water pollution from agricultural or
silvicultural production has been scientifically documented.
(18) "Watershed" means all the area from
which all drainage passes a given point downstream.
Section 2. Eligibility of Persons.
(1) Eligible persons. Persons conducting
agricultural or silvicultural production shall be eligible to receive
cost-share assistance for best management practices if:
(a) The person has prepared an agriculture
water quality plan; and
(b) The
person agrees to perform and to maintain best management practices for the
period of time established by the commission.
(2) Ineligible persons. A person engaged in
agricultural or silvicultural production shall not be eligible for further
cost-share assistance if the applicant has:
(a) Failed or refused to comply with
agriculture water quality planning requirements and has been deemed a "bad
actor" pursuant to KRS 224.71-130; or
(b) Failed to comply with practice lifespans
or complete previous cost-share projects within five (5) years prior to the
application date.
Section
3. Eligible Best Management Practices.
(1) Purposes of best management practices.
The Kentucky Soil Erosion and Water Quality Cost-share Funds shall be used to
provide cost-share assistance for development and implementation of best
management practices for:
(a) Providing
cleaner water through the reduction in sediment loading of Kentucky streams,
rivers, and lakes;
(b) Reducing the
loss of topsoil vital to sustain production of food and fiber; and
(c) Preventing surface water and groundwater
pollution.
(2) Approved
best management practices. Complete listings of eligible best management
practices are contained in The 2019 Kentucky Soil and Water Quality Cost-Share
Practice Handbook.
Section
4. Solicitation of Applications.
(1) The commission shall establish for each
program year a deadline for submittal of applications for cost-share
assistance.
(2) Each conservation
district shall provide an opportunity for persons within the district to submit
applications in time for the next program year by advertising the availability
of cost-share assistance in appropriate news media, such as electronic media,
local newspapers, local radio stations, and any newsletters published by the
district.
Section 5.
Contents and Completion of Applications.
(1)
Contents of application. An applicant shall submit to the conservation district
in which the eligible land is located the Kentucky Soil and Water Cost Share
Program Application, found at
https://dep.gateway.ky.gov/eForms/Main/Forms.aspx,
in order to apply for cost-share assistance. The applicant shall include with
the application:
(a) An agriculture water
quality plan in effect for the eligible land that is compliant with KRS 224.71-120 and updated to be current with the Statewide Agriculture Water
Quality Plan authorized by KRS 224.71-110; and
(b) If known to the applicant or as made in
consultation with the appropriate technical agency, the anticipated total cost
of the best management practice to be implemented and the percentage, if any,
of the cost that the applicant proposes to bear, which percentage shall not be
less than minimums established by the commission for the particular best
management practice.
(2)
An applicant applying for cost-share funds for best management practices
involving nutrient storage shall include a nutrient management plan as
established in the Statewide Agriculture Water Quality Plan.
(3)
(a)
Completion of applications. An applicant who does not have an agriculture water
quality plan that is compliant with KRS 224.71-120 and updated to be current
with the Statewide Agriculture Water Quality Plan authorized by KRS 224.71-110,
in effect for the eligible land, or who has not determined the anticipated
total cost of the requested best management practice may request technical
assistance from the conservation district in developing a best management
practices plan and determining costs.
(b) If the best management practices plan has
been developed and the anticipated total cost determined, the application shall
be reviewed in accordance with the eligibility and prioritization criteria
established by this administrative regulation.
Section 6. Review of Applications.
(1) Each conservation district shall review
and determine the eligibility of all applications submitted to the district by
the established deadline.
(2) The
board of supervisors for the district shall vote upon eligibility at a meeting
conducted in accordance with the Open Meetings Law, KRS 61.805 to 61.850, and
record the outcome in the minutes of the board of supervisors for that
meeting.
(3) A district supervisor
who is also an applicant for cost-share assistance shall not vote on
eligibility.
(4) The district shall
forward the applications to the commission within fifteen (15) days after
determining eligibility.
Section
7. Prioritization of Applications. The commission shall prioritize
the applications of persons determined by the conservation districts to be
eligible for cost-share assistance and shall make the final award of cost-share
assistance.
(1) Classification of priorities.
Applications shall be prioritized based on:
(a) Applicants conducting agricultural or
silvicultural production needing animal waste management systems where animal
waste has been identified by the Energy and Environment Cabinet as a water
pollution problem; and
(b)
Applicants who are members of agricultural districts.
(2) Applications within each classification
established in subsection (1) of this section shall be prioritized based on:
(a)
1.
Presence of water pollution, based on:
a.
Notification by a local, state, or federal agency that the applicant's
agricultural or silvicultural production has caused or contributed to water
pollution;
b. Determination of the
Energy and Environment Cabinet that a surface water affected by the applicant's
agricultural or silvicultural production is not meeting its designated
use;
c. Identification by the
Energy and Environment Cabinet of a water priority protection region
encompassing the location of the applicant's agricultural or silvicultural
production; or
d. Other
documentation of water pollution, such as through a biological assessment;
or
2. Potential for
development of water pollution from agricultural or silvicultural production in
the watershed in which the applicant's agricultural or silvicultural production
is being conducted;
(b)
Types of water pollutants:
1. Animal
waste;
2. Sediment
run-off;
3. Nutrient loading;
or
4. Pesticide application,
storage or disposal;
(c)
Proximity of pollutant to groundwater or surface water;
(d) Magnitude of water pollution;
and
(e) Location in a priority
watershed as established by the Agriculture Water Quality Authority or Division
of Water including a source water protection area.
Section 8. Allocation of
Cost-share Assistance.
(1) The available funds
received by the commission for the cost-share program shall be held by the
Kentucky Division of Conservation and disbursed to the conservation districts
based on requests from the districts approved by the commission after a
practice has been completed and all paperwork has been signed as complete and
submitted for payment. The district shall be granted a share of the Kentucky
Soil Erosion and Water Quality Cost-share Fund that shall be held by the
Kentucky Division of Conservation based on the commission's approval of an
initial district request in accordance with the prioritization system
established in Section 7 of this administrative regulation.
(2) Any funds granted by the commission and
distributed by the Kentucky Division of Conservation to a district for a
practice that results in overpayment shall revert to the commission if the
district has not received prior permission to obligate the funds to another
applicant within one (1) year from receipt.
(3) The commission shall retain ten (10)
percent of the annual appropriation in a contingency fund to be allocated to
assist persons engaged in agricultural or silvicultural productions and
implementing the agriculture water quality program mandated by Subchapter 71 of
KRS Chapter 224.
Section
9. Design of Best Management Practices. Once cost-share assistance
has been awarded by the commission, the local district shall designate a
technician to develop final design and layout for the approved best management
practices.
Section 10. Execution of
Performance and Maintenance Agreements. After an application has been awarded
cost-share assistance and before the applicant has received payment of the
cost-share funds, the applicant and the conservation district shall execute a
performance and maintenance agreement.
(1)
Requirements of performance and maintenance agreements. The performance and
maintenance agreement shall require the applicant to comply with paragraphs (a)
through (d) of this subsection.
(a) The
applicant shall agree to perform those best management practices approved in
accordance with this administrative regulation.
(b) The applicant shall agree to maintain
approved best management practices for the expected life of each practice
agreed upon in the performance and maintenance agreement.
(c) Upon completion of the approved best
management practice, the applicant shall notify the district that the practice
has been installed and shall provide to the district for its inspection all
vouchers, bills, and receipts associated with the practice.
(d) The applicant shall agree that at the
time of transfer of ownership of land where a best management practice has been
applied using cost-share assistance and the expected life assigned the practice
has not expired, the applicant shall execute a contract with the transferee
requiring continuation of those practices until completed.
(e) Approved applicants shall complete the
practice within one (1) year from the date of approval. Upon request, the
Division of Conservation shall grant a six (6) month extension per approved
application. After two (2) extensions have been granted and expired, the
landowner shall forfeit the right to the funds.
(2) Effect of performance and maintenance
agreement. Requirements for performance and maintenance of best management
practices applied using cost-share assistance shall be established in the
performance and maintenance agreement and reviewed with the applicant at the
time of application submittal and before completion of a certification of
practices.
(3) Refund of funds
disbursed.
(a) The district shall require a
refund of cost-share assistance funds if the district determines:
1. An approved best management practice has
not been maintained in compliance with approved design standards and
specifications for the practice during its expected life as agreed in the
performance and maintenance agreement; or
2.
a. The
applicant voluntarily relinquishes control or title to the land on which the
best management practice that was installed using cost-share funds and the new
owner, heir, or operator does not agree in writing to properly maintain the
practice for the remainder of the lifespan.
b. If the applicant voluntarily relinquishes
control or title to the land on which the best management practice that was
installed using cost-share funds pursuant to clause a. of this subparagraph,
then the applicant shall only be responsible for refunding to the district the
amount of funds prorated on the number of years remaining in the best
management practice maintenance agreement.
(b)
1. If
the district determines that the applicant shall refund the amount of the
cost-share, the applicant shall have thirty (30) days to make payment to the
district. The district may grant the applicant an extension of time to make the
refund upon the submission of a written request by the applicant.
2. If the applicant fails to timely refund
the amount of the cost-share, the district shall refer the matter to the
commission.
3. If the district
declines to seek a refund, the district shall state its reason for not doing so
and notify the commission and the applicant. The commission shall review the
matter to determine whether or not to seek a refund.
4. If the commission becomes aware of a
situation in paragraphs (a)1. or (a)2. of this subsection, and the district
fails to review the matter, the commission shall conduct a review of the matter
and determine whether or not to seek a refund.
5. The commission shall be authorized to
recover the amount of the cost-share by initiating a legal action in the
Franklin Circuit Court.
(4) Application for future cost-share
assistance. Best management practices that have been successfully completed and
that later fail as the result of floods, drought, or other natural disasters,
and not the fault of the applicant, shall not prohibit the applicant from
applying for additional cost-share assistance to restore the practices to their
original design standards and specifications.
(5) Certification. Upon notification by the
applicant that the approved best management practice has been completed and
before disbursement of funds from the district, the appropriate technical
agency shall certify to the district that the practice has been installed in
accordance with The 2019 Kentucky Soil and Water Quality Cost-Share Practice
Handbook.
(6) Limitations on
awards.
(a) Cost-share assistance awarded to
an applicant shall be limited to a maximum of seventy-five (75) percent of the
actual cost, not to exceed an amount approved by the commission, for each best
management practice, with the assisted applicant providing twenty-five (25)
percent of the cost, which may include in-kind support, with a maximum of
$20,000 per year.
(b) An applicant
shall only submit one application per program year.
(c) Cost-share assistance may be used with
federal or local cost-share funds on the same practices if the total cost share
payment does not exceed seventy-five (75) percent of the practice
cost.
(d) Cost-share assistance
shall not be awarded to best management practices in progress prior to
cost-share approval or previously-installed practices by the
applicant.
Section
11. Reporting and Accounting. District reporting and accounting. A
district shall:
(1) Maintain a control ledger
showing the current approved applications to the commission and cost share
approved amounts for approved applications, based on estimated cost;
(2) Submit a quarterly report to the
commission indicating any unobligated balance of allocated and disbursed
cost-share funds as shown on each ledger;
(3) Submit an annual progress report to the
commission showing accomplishments "to date" for the current program year;
and
(4) Assemble case files for
each approved application, filed by program year and accessible for public
inspection, containing:
(a) The approved
application for allocated funds;
(b) A copy of the estimated cost
sheet;
(c) Certification of
practice completion;
(d)
Applicant's vouchers, bills, or receipts;
(e) Final designs for best management
practices;
(f) The performance and
maintenance agreement;
(g) Any
amendments to the performance and maintenance agreement; and
(h) A map locating the practices.
Section 12. Appeals.
(1) Procedure for filing appeal. An applicant
aggrieved by a decision of the commission denying an application or limiting
the amount of financial assistance may file a written appeal with the
commission. The appeal shall be filed within thirty (30) days of the decision
and shall state the basis for the appeal.
(2) Procedure for hearing appeal.
(a) The commission shall notify the applicant
and the local district that they may appear before the commission and present
testimony or written documentation on the issues presented by the
appeal.
(b) The commission shall
have sixty (60) days in which to make a decision and to notify the local
district and the applicant.
(3) Review of final decision. The decisions
of the commission may be appealed to the Franklin Circuit Court.
Section 13. Incorporation by
Reference.
(1) "The 2019 Kentucky Soil and
Water Quality Cost-Share Practice Handbook", October 2019 is incorporated by
reference.
(2) This material may be
inspected, copied, or obtained, subject to applicable copyright law, at the
Division of Conservation, 300 Sower Boulevard, Frankfort, Kentucky 40601,
Monday through Friday, 8 a.m. to 4:30 p.m., Eastern Standard Time.
STATUTORY AUTHORITY: KRS 146.110-146.115