Alabama Administrative Code Chapter 335-11-1 — Clean Water State Revolving Fund Program

335 Alabama Department of Environmental Management

Ala. Admin. Code r. 335-11-1-.01 Definitions

The words and terms used in this chapter shall have the following meanings unless the context clearly indicates otherwise.

(a) "Act" means the Federal Water Pollution Control Act, 33 USC1251 et seq, as amended, November 2002, also known as the amended Clean Water Act. Sections 212, 319, and 320 and Title VI of the Act pertain to the Clean Water State Revolving Fund. Alabama Act No. 87-226.

(b) “Affordability Criteria” means the empirical number that is generated based on a combination of community poverty rate, community unemployment rate and statewide population trend.

(c) “Affordability Measure” means the empirical number that projects that are above this number are considered unaffordable.

(d) "Allowable Costs" means those costs that are eligible, reasonable, necessary, and allocable to the project; permitted by generally accepted accounting principles; and approved by the Department in the assistance agreement.

(e) "Applicant" means the public body that has submitted an application to the Department for financial assistance from the Clean Water State Revolving Fund.

(f) "Application" means the information submitted by an applicant to the Department to obtain financial assistance, including technical, environmental, and financial information necessary to determine the eligibility for financial assistance from the Clean Water State Revolving Fund.

(g) "Assistance Agreement" means a loan or grant from the Clean Water State Revolving Fund for the allowable costs of the project.

(h) "Clean Water State Revolving Fund" or "CWSRF" means the Water Pollution Control Revolving Loan Fund created by the Act.

(i) “Community” means the county or township that most accurately represents the customer base and/or residents served by the overseeing loan applicant as justified in writing by the applicant.

(j) "Corpus of the Fund" means the capital of the program, funds generated for the existence and sustenance of the program, a permanent fund kept for the basic expenditures for the administration and survival of the program:

1. Appropriations to the CWSRF from the Alabama Legislature; and,

2. Capitalization grants from the EPA, net of administrative reserves and any additional subsidy requirements.

(k) “Capitalized Interest” means unpaid interest accrued between the loan closure date and the construction completion date.

(l) "Department" means the Alabama Department of Environmental Management established by the Alabama Environmental Management Act, Code of Ala. 1975, §§22-22A-1 to 22-22A-13.

(m) "Drinking Water State Revolving Fund" or "DWSRF" means the drinking water fund described in Chapter 335 11-2.

(n) "EPA" means the United States Environmental Protection Agency.

(o) "Fund" means the Clean Water State Revolving Fund.

(p) "Project" means as follows:

1. For funding as a result of Section 212 of the Act, devices and systems associated with wastewater, reclaimed water or stormwater management facilities; and,

2. For funding as a result of either Section 319 or 320 of the Act, devices and systems or implementation of best management practices associated with nonpoint source water pollution control.

3. For defined services for the construction of improvements as approved by the Department in the assistance agreement.

(q) "Project Priority List" means the integrated list of projects developed annually by the Department, which includes a priority ranking of applicants eligible for Clean Water State Revolving Fund assistance pursuant to 33 USC 1381 and 33 USC 1296, and a list of activities eligible for funding under 33 USC 1329 and 33 USC 1330.

(r) “Project Costs” means costs for construction, procurement of equipment and materials, contingency, demolition, legal and technical services, land acquisition, and capitalized interest.

(s) "Public Body" means any county, state agency, incorporated city or town, or their instrumentality created by or pursuant to state law and having jurisdiction over the disposal of sewage, industrial wastes, or other wastes. It includes also a combination of two or more of the foregoing having such jurisdiction.

(t) "Recipient" means any public body that has received a Fund assistance agreement pursuant to this chapter.

(u) "Safe Drinking Water Act" means the federal Safe Drinking Water Act, 33 USC 300 f-j.

(v) “State Match” means funds provided by the State as required by EPA to receive federal funding for the program.

(w) "Wastewater" means any liquid waste, sewage, septage, or any combination thereof, or other residue discharged or collected into a sewer system or present in stormwater runoff.

History

• Author: Aubrey H. White III, Brian Espy, James Dailey
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• *New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.02 Eligible Applicants

Any public entity shall be eligible to apply for financial assistance for planning, design, and construction of eligible projects described in rule 335-11-1-.03.

History

• Author: Aubrey H. White III
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• *New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.03 Eligible Projects

(1) Funds in the Clean Water State Revolving Fund shall be used for:

(a) Planning, design and construction of wastewater or stormwater collection, conveyance, and treatment facilities established under CWA section 212.

(b) The implementation of nonpoint source pollution control management programs established under CWA section 319.

(c) Projects that implement a Comprehensive Conservation Management Plan at an estuary established under CWA section 320.

(d) Construction, repair or replacement of decentralized wastewater systems that treat municipal wastewater or domestic sewage.

(e) Water conservation and reuse projects;

(f) Water quality projects at solid waste landfills;

(g) Assistance to manage, reduce, treat or recapture stormwater of subsurface drainage including green roofs and wetland restoration.

(h) Assistance for measures to reduce energy consumption for publicly owned treatment works.

(i) Assistance for projects for reusing or recycling wastewater, stormwater, or subsurface drainage water.

(j) To the extent funds are made available by the Department, refinancing or buying eligible debt obligations of municipalities and intermunicipal and interstate agencies within Alabama at or below market rates, if the debt obligations were incurred after March 7, 1985;

(k) Guaranteeing or purchasing insurance for a local obligation to improve credit market access or reduce the interest rate of the obligations;

(l) Transferring fund assets between the Clean Water State Revolving Fund and the Drinking Water State Revolving Fund as allowed by the Clean Water Act and the Safe Drinking Water Act;

(m) Providing a source of revenue or security for the payment of principal and interest on revenue or general obligations bonds issued by the state if the proceeds of the sale of the bonds will be deposited in the fund; and

(n) Any other use allowable by the United State Environmental Protection Agency and consistent with the Act.

(2) Projects must be ranked on the Department’s project priority list and included in the CWSRF Intended Use Plan to be considered for funding.

(3) Funds in the CWSRF shall not be used for:

(a) Routine laboratory fees and other monitoring expenses; and,

(b) Operation and maintenance expenses.

History

• Author: Aubrey H. White III, James Dailey, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• *New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.04 Project Priority List

(1) The Department shall prepare a ranked priority listing of projects for which CWSRF funding will be made available.

(2) The project priority list shall be included in the Departments Intended Use Plan and subject to public notice and a public comment period.

(3) Projects on the priority list shall be ranked in descending order of the point rating assigned to each project. In the event two or more projects are assigned an identical point rating, such projects shall be ranked in accordance with the following criteria: The project that serves a community with the lowest median household income shall be ranked first. In the event the projects have identical median household incomes, the project with the lowest total cost will be ranked first.

(4) Supplemental projects shall be placed at the top of priority list regardless of the priority ranking of the initial project. In the event that multiple supplemental applications are submitted, each will be ranked using the initial amount of priority points assigned in comparison to each supplemental application in accordance with 335-11-1-.04(3).

(5) The priority list shall be divided into a fundable and nonfundable, or planning, portion. The list's fundable portion shall include those projects anticipated to be funded from the projected available CWSRF funds. The list's nonfundable portion shall include all projects that are eligible but sufficient funding is not available from the CWSRF at the time the priority list is prepared.

(6) The Department may remove a project from the priority list at any time provided that one or more of the following conditions is met:

(a) The project has been fully funded;

(b) The project is not ready to proceed as determined by the Department; or,

(c) The project is ineligible under the provisions of this chapter or the rules and grant conditions of the EPA.

(7) The Department may add projects to the priority list at any time during the year.

(8) The Department may bypass a project on the fundable portion of the priority list if:

(a) The public body has not submitted a complete application as required by rule 335-11-1-.11 by the deadlines established by the Department;

(b) Bypassing the project will enable the Department to fund an emergency project where, as determined by the Department, a severe public health or water quality problem exists that requires the immediate construction of facilities to eliminate an existing potentially hazardous condition; or

(c) A bypass is necessary to fund certain types of projects as detailed in the Department's request for applications or as required by EPA capitalization grant conditions.

(9) Public bodies that wish to have projects listed on the priority list must submit a complete preapplication form with supporting documentation to be considered for funding for the current year funding cycle on or before the date established by the Department.

(10) The Department may limit the amount of funding allocated to each project on the priority list in order to fund additional projects. Any limitation shall be based on either a maximum loan amount or a maximum percentage of available funds allocated to each project.

(11) Funds may be transferred between the Clean Water State Revolving Fund and the Drinking Water State Revolving Fund as allowed by the Safe Drinking Water Act and the Clean Water Act.

History

• Author: Aubrey H. White III, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• *New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.05 Criteria For Ranking

The Department shall determine the priority for funding eligible projects to be included on the project priority list and included in the Departments Intended Use Plan and based on the criteria established in 33 USC 1296; and,

(a) whether the project promotes compliance with the Clean Water Act;

(b) the financial capability of the applicant;

(c) improvement to water quality;

(d) energy and water efficiency; and,

(e) sustainability of the project.

History

• Author: Aubrey H. White III, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• • New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.*

Ala. Admin. Code r. 335-11-1-.06 Funding Reserves

The Department may reserve from the CWSRF amounts needed for administration of the fund and any other purposes allowable by the rules and grant conditions of the EPA.

History

• Author: Aubrey H. White III
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010.

Ala. Admin. Code r. 335-11-1-.07 Maintenance Of The Fund

(1) The Department shall maintain the corpus of the fund in perpetuity.

(2) Payments of principal, interest, and penalties on loans awarded from the CWSRF shall be made to the fund.

(3) All interest earned shall be credited to the CWSRF pursuant to the Act.

History

• Author: Aubrey H. White III
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010.

Ala. Admin. Code r. 335-11-1-.08 Administrative Fees

(1) The Department may require an administrative or legal fee of recipients:

(a) Assessed as a percentage of the outstanding principal, payable on interest payment dates; and/or

(b) An origination fee, to be paid at closing of the assistance agreement.

(2) Fees collected shall be used to defray the Department's expenses of servicing the assistance agreement and necessary operating expenses of the program or provided as the State Match requirement.

History

• Author: Aubrey H. White III, James Dailey
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

**Ala. Admin. Code r. 335-11-1-.09 ** Terms Of Assistance Agreements From The CWSRF

(1) The Department may offer loans for projects for up to 100 percent of allowable project costs with a range of options regarding the term and interest rate.

(2) The principal amount of the loan shall be repaid over a period not to exceed EPA requirements or the life of the facilities being financed, whichever is sooner. Repayment shall begin no later than one year after estimated completion of construction, or three years from the date of loan award, whichever comes first. Thereafter, loan repayments shall be made in accordance with the loan amortization in the assistance agreement. The repayment period may be equal to less than the EPA-permitted maximum at the discretion of the Department.

(3) Capitalized interest, if applicable, shall be charged to the borrower as detailed in the assistance agreement.

(4) Loan interest shall be charged to the borrower as detailed in the assistance agreement.

(5) The applicant shall prepare an operation and maintenance manual for any new or substantially upgraded wastewater treatment plant.

(6) The applicant shall conform to all federal, state, and local laws pertaining to construction of the project and procurement of design, inspection, and construction services.

(7) The Department may assess penalties for late loan repayments as stipulated in the assistance agreement.

(8) To ensure adequate funds for major maintenance and replacement of the projects funded by this program, the applicant may be required to set aside annually to a replacement reserve fund from current revenues, after taking into account costs of operations and maintenance and debt service requirements, an amount to be determined by the Department. Funds may be withdrawn from the account if major maintenance or replacement of equipment in excess of budgeted amounts is required.

(9) The assistance agreement shall contain terms and conditions that the Department deems necessary to maintain the financial integrity of the CWSRF.

(10) Loans shall be made only to public entities that:

(a) Are included on the project priority list;

(b) In the opinion of the Department, have demonstrated the technical, financial, and managerial ability to operate and maintain the facilities over their useful life and to repay the loan;

(c) Provide security for repayment of the loan;

(d) Are not in default with any outstanding debt indentures, grant agreements, or loans;

(e) Agree to periodically adjust user fees and charges in order that a revenue stream is generated sufficient to operate and maintain the facilities and repay the loan;

(f) Agree to maintain records in accordance with governmental accounting standards and to conduct annual audits of the public body's financial records; and,

(g) Provide assurances as reasonably required by the Department and EPA.

(11) The Department may impose such other conditions as may be necessary and appropriate to implement the Clean Water Act and laws of the State.

(12) The specific terms and conditions of the CWSRF loan shall be incorporated in the assistance agreement to be executed by the applicant and the Department.

History

• Author: Aubrey H. White III, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.10 Duplicate Funding

Projects that are funded by other grant or subsidized loan programs are ineligible for CWSRF funding for the identical scope of work. CWSRF funds may be used in conjunction with other grant or subsidized loan programs to the extent that the CWSRF is not reimbursing the same expenditures as the other program. By way of example, a project costing a total of one million dollars ($1,000,000) that receives a federal grant for five hundred fifty thousand dollars ($550,000) would be eligible for CWSRF assistance in the maximum amount of four hundred fifty-thousand dollars ($450,000).

History

• Author: Aubrey H. White III
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• Filed August 31, 2010; effective October 4, 2010.

Ala. Admin. Code r. 335-11-1-.11 Application Procedures

(1) Pre-Applications for CWSRF assistance may be submitted at anytime during the year. Projects subject to subsidy must submit applications on or before the date established by the Department.

(2) Full applications for CWSRF assistance shall be submitted by the deadline established each year by the Department or by the date agreed upon by the Department and the applicant. The application shall include full and complete documentation and any supplementary materials that the Department may require.

(3) Submissions that do not substantially comply with this chapter shall not be processed, and shall be returned to the applicant.

(4) The following shall be submitted when applying for CWSRF assistance:

(a) A complete application form, with supporting documents;

(b) A resolution passed by the public body authorizing the filing of an application for assistance, specifying the individual authorized to sign the application on behalf of the applicant. If two or more public bodies are involved in the project, a resolution is required from each, indicating the lead applicant and the authorized representative;

(c) Statement of assurances as provided by the Department;

(d) Plans and specifications for the project;

(e) Project cost breakdown;

(f) Projected cash flow schedule;

(g) Construction schedule;

(h) For publicly-owned treatment works or projects dependant on sewer revenues for repayment, a copy of the sewer use ordinance and residential user charge rates;

(i) Site certificate from the applicant's legal counsel and the authorized representative as to title or mechanism to obtain title necessary for project sites and easements;

(j) Certification that the applicant has received any required NPDES permits from the Department for operation of the project;

(k) A statement from the applicant indicating that it has not violated any federal, state, or local law pertaining to fraud, bribery, graft, kickback, collusion, or conflicts of interest relating to or in connection with the planning, design, and construction of the project;

(l) An environmental information document in such format as the Department may require;

(m) For assistance provided to publicly owned treatment works, if the sanitary sewer system is subject to excessive inflow/infiltration, assurance must be provided by the applicant that the necessary repairs will be made in a timely manner.

(n) A statement from the applicant which indicates if it used the services of a person for planning or design of the project whose name appears on the Federal list of debarments, suspensions and voluntary exclusions;

(o) Executed intermunicipal agreements, if required;

(p) Draft engineering agreements for construction services which specify engineering and inspection costs to be funded from CWSRF Funds;

(q) A description of how the applicant plans to repay the fund loan with supporting documentation as required by the Department; and,

(r) Any other information the Department may require to ensure the eligibility of the project and to evaluate the financial, technical, and managerial capacity of the applicant.

(5) Applicants shall obtain all necessary federal, state and local permits and approvals prior to the award of an assistance agreement. Excluded from prior acquisition are permits and approvals that are impractical to obtain prior to execution of the assistance agreement (e.g., construction permit, road opening permit, blasting permit, etc.).

History

• Author: Aubrey H. White III, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.12 Requisition Of Funds

(a) Loan proceeds shall be disbursed to recipients on a reimbursement basis as work progresses, but no more often than once per month unless the Department grants prior approval.

(b) The Department shall review each payment request to ensure that it conforms to the approved scope of work and that it complies with the conditions of the assistance agreement before approving payment.

History

• Author: Aubrey H. White III, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.13 Project Changes

The recipient shall immediately notify the Department in writing of events or proposed changes that may require a modification to the assistance agreement, including:

(a) Changes in plans and specifications for the project;

(b) Changes to the scope or objectives of the project;

(c) Significant, changed conditions at the project site;

(d) Significant changes to the construction schedule; and

(e) Changes that may substantially change the total cost of the project

History

• Author: Aubrey H. White III, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.14 Access

(1) The recipient and its contractor and subcontractors shall provide to Department personnel, and any authorized representative of the Department, access to the facilities, premises and records related to the project.

(2) The recipient shall submit to the Department such documents and information as requested by the Department needed to determine compliance with the assistance agreement and this Chapter.

(3) The recipient, and all contractors which contract directly with the recipient or receive a portion of State funds, may be subject to a financial audit.

(4) Records shall be retained and available to the Department until the final fund loan repayment has been made by the recipient.

History

• Author: Aubrey H. White III
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010.

Ala. Admin. Code r. 335-11-1-.15 Project Sign

A project identification sign shall be displayed in a prominent location at each publicly visible project site and facility. The sign shall identify the project, CWSRF assistance amount, and other information as required by the Department, and shall be configured in a manner acceptable to the Department.

History

• Author: Aubrey H. White III, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• *New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.16 Project Initiation

(1) The recipient shall expeditiously initiate and complete the project in accordance with the project schedule contained in the assistance agreement.

(2) The recipient shall not advertise any contract until written notice of acceptance of project plans and specifications has been issued by the Department.

(3) Once bids for project initiation are received, the recipient must be issued approval to award by the Department prior to awarding any agreements or sub-agreement(s).

(4) The recipient and the contractor to whom the sub-agreement(s) has been awarded shall attend a preconstruction conference with Department personnel prior to the issuance of a notice to proceed by the recipient.

(5) The recipient shall award the sub-agreement(s) and issue notice(s) to proceed no later than the deadlines established by the assistance agreement.

History

• Author: Aubrey H. White III, Kris Berry
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010. Amended: Published February 28, 2020; effective April 13, 2020.

Ala. Admin. Code r. 335-11-1-.17 Allowable Project Costs

The Department shall only provide assistance from the CWSRF for costs of work that are eligible under Title VI of the Clean Water Act, and the Code of Ala. 1975, §§22-34.

History

• Author: Aubrey H. White III
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010.

Ala. Admin. Code r. 335-11-1-.18 Withholding Of Funds

The Department may withhold disbursements from an assistance agreement when the Department determines that a recipient has failed to comply with any assistance agreement condition, provision of this chapter, or contract specification or requirement.

History

• Author: Aubrey H. White III
• Authority: Code of Ala. 1975, §§22-34-1, 22-34-2, 22-34-3.
• New Rule: Filed August 31, 2010; effective October 4, 2010.