Resources, Naturally
A Sea of Acronyms: More about TWDB’s EDAP
In recent years and recent issues we have discussed the Texas Water Development Board’s (TWDB) state-wide Economically Disadvantaged Areas Program (EDAP). Since counties are often interested in making EDAP funding available to their citizens because cities or public water supply corporations within the county would benefit from access to the program, a somewhat regular review of the program may be in order.
The Texas Water Code (Sec. 17.921) defines an economically distressed area as an area in which water supply or sewer services are inadequate to meet minimal needs of residential users as defined by TWDB rules; financial resources are inadequate to provide water supply or sewer services that will satisfy these needs; and where an established residential subdivision was located on June 1, 2005, as determined by TWDB. This economically distressed area must have a median income not greater than 75 percent of the median state household income for the most recent year for which statistics are available.
The program funds can be used to fund planning, land acquisition, design, construction for new service or improvements to water supply and wastewater collection and treatment facilities, including all necessary engineering work. Funds can be awarded as grants, loans, or a combination of grants and loans. The applicant, or its designee, must also be capable of maintaining and operating the completed system and is responsible for securing any necessary water rights or permits, wastewater discharge permits, and any other required licenses.
Any political subdivision can apply for EDAP funding, including counties, cities, water districts, and nonprofit water supply corporations. However, in order to be eligible for consideration for EDAP funding, the county in which a city, water district or nonprofit water supply district seeking funding is located must adopt TWDB’s Model Subdivision Rules (MSRs). (The model rules must also be adopted by any county adjacent to the Texas-Mexico border.) If the county is the applicant for EDAP funding, then the county must adopt the MSRs as well. If the applicant is a city or if any part of the project is located in the extra-territorial jurisdiction of a city, the city must adopt the MSRs. These model rules are enforced by the adopting county or city and by the Office of the Attorney General.
TWDB’s rules (Sec. 363.504(a)(E), Texas Administrative Code) require a county or municipality required or authorized to adopt the MSRs to complete a training course of not more than two hours within one year of submitting an application for financial assistance from EDAP. The board also has a wealth of resources related to the MSRs, including an online training presentation, codes, model rules adopted by a county, sample documents, an EDAP manual, guidance documents and forms and a list of frequently asked questions.
The model rules were created by the 71st Legislature in 1989 to prevent the proliferation of developments with substandard or non-existent water and wastewater infrastructure. The MSRs are limited in their scope to the provision of water supply and wastewater treatment services and the minimum setbacks required for these services. It is important to note the MSRs apply only to residential subdivisions with lots of five acres or fewer. Final plats must include these elements of the MSRs: a description of the methods of providing water and/or wastewater services, and certification from a licensed professional engineer regarding the method for providing these services (for example, connecting to an existing public water or sewer system, creating a new public water or sewer utility, installing wells or septic systems). The certification must also state the facilities will accommodate ultimate development of the tract for a minimum of 30 years.
A final plat must include documentation that, if water and wastewater facilities are built at the time of final plat approval, the developer has executed an agreement with the county or the city to construct and install at the developer’s expense all subdivision improvements required to comply with county regulations.
This agreement must be secured by a bond, an irrevocable letter of credit, or an alternative financial guarantee such as a cash deposit. The agreement must include a detailed cost estimate for those unconstructed water and wastewater facilities necessary to serve each lot and a construction schedule for each significant element needed by these facilities. No land subdivided for residential purposes (for the purposes of the MSRs, this is considered to be tracts with lots of 5 or fewer acres) may not be sold or conveyed until the developer has received approval of a final plat of the tract and has filed and recorded that approved plat with the county clerk.
The board also cautions that in the event a developer does not construct the required facilities, the county or the city must be prepared to take on the responsibility for completing the facilities using the developer’s financial guarantee. This makes a careful review of the total project costs estimates especially important.
A county interested in exploring EDAP should do so carefully, with all necessary research and professional counsel. Take the time and employ the expertise needed to determine how best to weave all existing appropriate authority into the model rules to ensure development meets the standards necessary to ensure your county community continues to prosper.
