CHAPTER 74:05:08
STATE WATER POLLUTION CONTROL REVOLVING FUND PROGRAM
Section
74:05:08:01 Definitions.
74:05:08:02 Eligibility.
74:05:08:03 Project priority determined by points.
74:05:08:03.01 Project priority rating system.
74:05:08:03.02 Repealed.
74:05:08:04 Amendment of priority list.
74:05:08:04.01 Priority list bypass procedures.
74:05:08:05 Annual preparation of IUP.
74:05:08:06 Amendment of IUP.
74:05:08:07 Deadline for application.
74:05:08:08 Reserve for water quality grants.
74:05:08:09 Repealed.
74:05:08:10 Repealed.
74:05:08:11 Repealed.
74:05:08:12 Financial assistance approval criteria.
74:05:08:12.01 Principal forgiveness as part of assistance agreements.
74:05:08:12.02 Principal forgiveness amount determination.
74:05:08:12.03 Affordability criteria to determine principal forgiveness eligibility.
74:05:08:13 Applications.
74:05:08:13.01 Application review and completeness determination.
74:05:08:13.02 Facilities plan submittal.
74:05:08:13.03 Environmental determinations.
74:05:08:14 Eligible use of funds.
74:05:08:15 Financial security.
74:05:08:16 Repealed.
74:05:08:17 Duration of assistance.
74:05:08:18 Assistance agreement interest rates.
74:05:08:18.01 Loans for nonpoint source projects.
74:05:08:18.02 Loans to project sponsors subject to the Build America, Buy America Act provisions.
74:05:08:19 Repealed.
74:05:08:20 Assistance agreements.
74:05:08:21 Disbursement of funds.
74:05:08:22 Accounting methods and audits.
74:05:08:23 Repealed.
74:05:08:24 Repealed.
74:05:08:01. Definitions. Terms used in this chapter that are not defined in this section have the meaning given by the Clean Water Act. The following terms used in this chapter mean:
(1) "Act," "Clean Water Act," the federal Water Pollution Control Act Amendments of 1987, as amended to July 1, 2013; and Public Law 111-88, enacted October 30, 2009; Public Law 112-10, enacted April 15, 2011; Public Law 112-74, enacted December 23, 2011; Public Law 113-6, enacted March 26, 2013; Public Law 113-76, enacted January 17, 2014; Public Law 113-121, enacted June 10, 2014; Public Law 113-235, enacted December 16, 2014; Public Law 114-113, enacted December 18, 2015; Public Law 115-31, enacted May 5, 2017; Public Law 115-141, enacted March 23, 2018; Public Law 116-6, enacted February 15, 2019; Public Law 116-260, enacted December 20, 2019; Public Law 116-93, enacted December 27, 2020; Public Law 117-58, enacted November 15, 2021; and Public Law 117-103, enacted March 15, 2022;
(2) "Assistance," financial assistance awarded by the Board of Water and Natural Resources pursuant to SDCL 46A-1-60.1 to 46A-1-60.3, inclusive;
(3) "Board," the Board of Water and Natural Resources acting as that board or as the South Dakota Conservancy District;
(4) "Construction," any of the following procedures: preliminary planning to determine project feasibility; engineering, environmental, architectural, legal, fiscal, or economic studies, surveys, designs, plans, working drawings, specifications, or procedures; other necessary actions for the erection, building acquisition, alteration, remodeling, improvement, or extension of eligible works, the purchase of equipment, and the inspection or supervision of any of these procedures;
(5) "Department," the South Dakota Department of Agriculture and Natural Resources;
(6) "Facilities plan," an engineering evaluation that describes the need for the proposed wastewater treatment works based on present conditions and future needs, evaluates the costs and adequacies of appropriate alternatives, identifies potential environmental impacts of the proposed project; and provides the selection and justification of a final alternative;
(7) "Intended Use Plan," "IUP," a document prepared annually which provides assurances and specific proposals, including a list of potential SRF projects;
(8) "Interceptor," a sewer that receives wastewater from a number of transverse sewers or outlets and conducts the wastewater to a point for treatment or disposal;
(9) "Interim financing," a loan for a term not to exceed five years which is to be repaid from the proceeds of a federal grant or loan to be made by an agency or instrumentality of the United States government for a project;
(10) "Loan," lending of funds by the board to an eligible applicant pursuant to a financing agreement through the purchase or acquisition of any evidence of indebtedness or other obligation which is issued by the applicant and which is payable from taxes; from rates, revenues, charges, or assessments; from distributions of revenue pursuant to a state appropriation or statutory or constitutional provision; or from a pledge of property or other sources;
(11) "Median household income," as identified in the U.S. Census Bureau, American Community Survey, DP03 Selected Economic Characteristics 2020: 5-Year Estimates Data Profiles or by other statistically valid income data supplied by the applicant and acceptable to the board;
(12) "Minimum established rate," a rate charged to residential users of a wastewater system that meets the following criteria:
(a) For municipalities and sanitary districts the monthly residential wastewater bill is forty-five dollars or more for five thousand gallons usage or thirty dollars or more for five thousand gallons usage for projects that will receive loan proceeds from the Clean Water State Revolving Fund Emerging Contaminants funding made available through Public Law 117-58; or
(b) For all other assistance recipients the monthly residential wastewater bill is seventy dollars or more for five thousand gallons usage or thirty dollars or more for five thousand gallons usage for projects that will receive loan proceeds from the Clean Water State Revolving Fund Emerging Contaminants funding made available through Public Law 117-58;
(13) "Nonpoint source," pollution originating from many diffuse sources caused by rainfall or snowmelt moving over and through the ground;
(14) "Project," the actual erection, building acquisition, alteration, remodeling, improvement, or extension of eligible works, including the necessary planning, design, land acquisition, and purchase or installation of equipment, or implementation of nonpoint source practices;
(15) "Secretary," the secretary of the Department of Agriculture and Natural Resources;
(16) "Source water assessment report," a report prepared by the department that identifies potential sources of pollution in the portion of a watershed or groundwater area that contributes water to a water system that has at least fifteen service connections for year-round residents or that serves at least twenty-five year-round residents;
(17) "State Revolving Fund," the state water pollution control fund, a dedicated financing mechanism to provide loans, grants, and other forms of assistance for eligible works and projects;
(18) "Storm water project," a project designed to carry or retain only storm waters, surface runoff, street wash waters, and drainage;
(19) "TMDL process," a determination of the amount of pollution a waterbody can receive and still maintain water quality standards;
(20) "Wastewater treatment works," any acquisition of the land that will be an integral part of the treatment process or will be used for ultimate disposal of residues resulting from such treatment; or any devices and systems used in the storage, treatment, recycling, and reclamation of municipal sewage, domestic sewage, or industrial wastes of a liquid nature that:
(a) Implement section 201 of the Act;
(b) Are necessary to recycle or reuse water at the most economical cost over the estimated life of the works;
(c) Constitute elements essential to provide a reliable recycled supply;
(d) Are used for the ultimate disposal of residues resulting from the treatment and acquisition of other land, and interests in land, that are necessary for construction; or
(e) Prevent, abate, reduce, store, treat, separate, or dispose of municipal waste, industrial waste, or waste in combined storm water and sanitary sewer systems; and
(21) "Water quality grant," a grant made by the board to eligible applicants for the purpose of providing assistance for projects eligible under the Act.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 25 SDR 93, effective January 9, 1999; 28 SDR 4, effective July 22, 2001; 29 SDR 87, effective December 22, 2002; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015; SL 2021, ch 1, §§ 8, 19, effective April 19, 2021; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2, 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.
References: U.S. Census Bureau, American Community Survey, DP03 Selected Economic Characteristics 2020: 5-Year Estimates Data Profiles. This is information available at no cost over the internet at http://denr.sd.gov/documents/MedianHouseholdIncome.pdf.
74:05:08:02. Eligibility. A facility is eligible for funding under the SRF program, established in SDCL 46A-1-60.1, if the facility is:
(1) Included in the state water facilities plan before submittal of the application;
(2) On the current, approved IUP and project priority list; and
(3) Sponsored by one of the following entities:
(a) A watershed district organized under SDCL chapter 46A-14, water project district organized under SDCL chapter 46A-18, water user district organized under SDCL chapter 46A-9, sanitary district organized under SDCL chapter 34A-5, recycling and waste management district organized under SDCL chapter 34A-16, and any other lawful special purpose governmental entity that may construct eligible works;
(b) A state agency, state instrumentality, or political subdivision of the state; or
(c) A federally recognized Indian tribe.
A facility is eligible for assistance under the SRF program in the form of a water quality grant if the project is sponsored by an entity listed in subdivisions (1) to (3) of this section or by a private entity undertaking an eligible project under the Act.
A facility that is eligible to use the proceeds of a loan to make loans to private persons for nonpoint source projects is also eligible for assistance under the SRF program.
A facility is eligible for interim financing under the SRF program if the project sponsor provides evidence, in a form satisfactory to the board, that an agency or instrumentality of the United States government has committed to make a federal grant or loan for the project, and the proceeds of the grant or loan will be assigned to repay the interim loan.
An applicant seeking funding solely for the expenses associated with the design of a facility and preparation of plans and specifications may receive funding without the facility being included in the state water facilities plan.
A facility that has been funded by the board is deemed to remain in the state water facilities plan for purposes of a request by the sponsor for additional funding for the facility.
Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2, 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.
74:05:08:03. Project priority determined by points. The board shall award points according to § 74:05:08:03.01 to determine the priority of construction needs. The priority list shall be part of the intended use plan. It is not necessary for water quality grant projects to be ranked or listed on the IUP or state water plan.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 29 SDR 87, effective December 22, 2002; 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:03.01. Project priority rating system. Each potential project is assigned points based on the criteria in the following table:
Priority Criteria |
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| Priority Points |
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(1) Project Type Criteria (points may be awarded to only one criterion - 2 to 10 points) | |||
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(a) Wastewater treatment works; |
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(i) Elimination of a combined sewer overflow | 10 points | ||
(ii) Construction of a new or rehabilitation of an existing wastewater treatment facility to increase or maintain its capacity or treatment ability |
10 points | ||
(iii) Elimination of a sanitary sewer overflow | 8 points | ||
(iv) Reduction in infiltration/inflow identified through documented sources, such as televising or smoke testing |
6 points | ||
(v) Replacement of existing lift stations or lines without documented infiltration/inflow benefits |
4 points | ||
(vi) Installation of new lift stations, collectors, or interceptors to provide service to undeveloped areas |
2 points | ||
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(b) Untreated/uncontrolled runoff; |
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(i) Construction of a manure management system | 10 points | ||
(ii) Construction or rehabilitation of a storm water treatment/management facility |
8 points | ||
(iii) Development or implementation of an agricultural best manage-ment practice |
6 points | ||
(iv) Capping of a landfill | 6 points | ||
(v) Construction of storm water conveyance systems | 2 points | ||
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(c) Groundwater pollution; |
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(i) Elimination of septic systems | 10 points | ||
(ii) Removal of leaking underground storage tanks or remediation of impacts resulting from leaking underground storage tanks |
10 points | ||
(iii) Construction of systems, to include, but not limited to, liners, collection systems, and monitoring wells, to protect groundwater from leachate from landfills, hazardous waste sites, or other chemical storage facilities |
8 points | ||
(iv) Elimination of subsurface discharges | 6 points | ||
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(d) Aquatic/riparian habitat and lake and stream restoration; |
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(i) Shoreline restoration | 6 points | ||
(ii) Sediment removal | 5 points | ||
(iii) Re-configuring of streams to enhance in-stream habitat | 4 points | ||
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(e) Other - projects of a type not described above receive 2 points |
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(2) Proposed project benefits criteria (points may be awarded to only one criterion - 0 to 10 points) | |||
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(a) Projects that address enforcement activities | 10 points | ||
(b) Projects that address a documented water quality, public health, or safety issue, such as listing on the EPA quarterly noncompliance list, beach closings, stream sampling showing elevated fecal counts or fish kills |
10 points | ||
(c) Projects that are identified in an EPA approved project implementation plan under § 319 of the Act |
10 points | ||
(d) Projects that raise the treatment capability of wastewater treatment facility from secondary treatment to advanced treatment or total retention |
8 points | ||
(e) Projects that reduce the loading of a parameter that has been identified as an impairment to the receiving water or watershed as identified through the TMDL process |
8 points | ||
(f) Projects that eliminate or remediate a source of ground water pollution | 8 points | ||
(g) Projects that provide regional consolidation of facilities | 6 points | ||
(h) Projects that incorporate pollution prevention or waste minimization techniques |
4 points | ||
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(3) Water quality improvement criteria (points are cumulative for subsections (a) and (b) - 12 points maximum); | |||
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(a) Surface water restoration (points may be awarded to only one criterion - 0 to 8 points); |
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(i) Projects that benefit a priority 1 waterbody as identified on the list required by § 303(d) of the Act |
8 points | ||
(ii) Projects that benefit a priority 2 waterbody as identified on the list required by § 303(d) of the Act |
6 points | ||
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(b) Source water quality protection (points may be awarded to only one criterion - 0 to 8 points); |
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(i) Projects eliminating or remediating a potential contamination source within the source water area of a ground water public water supply as identified in a Source Water Assessment Report |
8 points | ||
(ii) Projects eliminating or remediating a potential contamination source within zone A of a surface water public water supply as identified in a Source Water Assessment Report |
8 points | ||
(iii) Projects eliminating or remediating a potential contamination source within zone B of a surface water public water supply as identified in a Source Water Assessment Report |
4 points | ||
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(4) Benefit magnitude criteria (points may be awarded to only one criterion - 2 to 10 points); | |||
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(a) Projects designed to serve the populace of a municipality, sanitary district, or other special purpose district are awarded points based on the population of the applicant. The source of population data is the 2020 census as prepared by the Bureau of Census, Department of Commerce. Points are awarded based on the following table: | |||
1 to 200 persons | 2 points |
201 to 500 persons | 3 points |
501 to 1,000 persons | 4 points |
1,001 to 2,500 persons | 5 points |
2,501 to 5,000 persons | 6 points |
5,001 to 10,000 persons | 7 points |
10,001 to 30,000 persons | 8 points |
30,001 and greater | 10 points; |
(b) Projects benefiting a watershed or large rural area are awarded points based on the area of the benefited area as provided in the following table: |
less than 25,000 acres | 2 points |
25,000 to 100,000 acres | 5 points |
greater than 100,000 acres. | 8 points |
Source: 29 SDR 87, effective December 22, 2002; 30 SDR 100, effective December 23, 2003; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.
74:05:08:04. Amendment of priority list. The board may add a project to the priority list established pursuant to § 74:05:08:03 at any board meeting if the action is included on the agenda posted for the meeting. The department shall assign points to projects added to the priority list according to § 74:05:08:03.01.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 29 SDR 87, effective December 22, 2002; 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:04.01. Priority list bypass procedures. Projects are funded based on their project priority rating. Projects with the highest priority rating that have submitted a complete application and demonstrated adequate capacity to repay the loan are funded before lower-rated projects. If a project on the priority list has not demonstrated readiness to proceed by submitting an application, the project may be bypassed and the next highest priority project that has submitted an application is funded. The department shall exert reasonable efforts to ensure that the higher-rated projects on the priority list are funded.
Source: 29 SDR 87, effective December 22, 2002.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:05. Annual preparation of IUP. Preparation of the IUP begins after the state water plan application deadline of October 1 of each year. Upon tentative completion of the annual preparation of the proposed IUP by the secretary, the board shall conduct a hearing to receive comments from the public. At least 20 calendar days notice shall be given of the public hearing in at least three newspapers of general circulation in different parts of the state. Written comments shall be accepted during this period. After all comments are received, the board shall compile and adopt the final IUP within 30 days after the hearing.
Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 29 SDR 87, effective December 22, 2002; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:06. Amendment of IUP. The board may amend the IUP at any board meeting if the proposed action is included on the agenda posted for the meeting.
Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 29 SDR 87, effective December 22, 2002; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:07. Deadline for application. Applications are due on the first day of January, April, July, and October. Applications must be postmarked or delivered no later than the day on which applications are due. The department shall present applications to the board after the completion of all required technical reviews and financial analyses. The department shall notify the applicant of the board meeting at which the application will be considered by the board.
Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 28 SDR 95, effective December 19, 2001; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:08. Reserve for water quality grants. The board may designate a portion of the SRF excess administrative expense surcharge for water quality grants for each federal fiscal year. The amount designated by the board and the activities for which the grant will be used shall be specified in the intended use plan.
Source: 15 SDR 20, effective August 7, 1988; 28 SDR 4, effective July 22, 2001; 30 SDR 100, effective December 23, 2003.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:09. Application restrictions. Repealed.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 29 SDR 87, effective December 22, 2002; repealed, 33 SDR 106, effective December 26, 2006.
74:05:08:10. Project priority list removal procedure.Repealed.
Source: 15 SDR 20, effective August 7, 1988; repealed, 21 SDR 97, effective November 28, 1994.
74:05:08:11. Project to be approved before construction. Repealed.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 95, effective December 19, 2001; 33 SDR 106, effective December 26, 2006; repealed, 40 SDR 14, effective July 29, 2013.
74:05:08:12. Financial assistance approval criteria. The board may award less financial assistance than the amount requested in the application or may deny assistance. If the applicant is eligible for assistance from more than one program, the board may approve financial assistance under any of the programs or under a combination of more than one program, including the consolidated water facilities construction fund program under chapter 74:05:07 or the solid waste management program under chapter 74:05:10. If financial assistance is approved from more than one program, the amount of assistance approved may not exceed the aggregate amount of funding requested. In determining the amount of financial assistance, the board may consider the following:
(1) The availability of funds in the SRF program;
(2) The applicant's need;
(3) Violation of health or safety standards; and
(4) The applicant's ability to repay.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:12.01. Principal forgiveness as part of assistance agreements. Assistance recipients described in § 74:05:08:02 that meet the affordability criteria described in § 74:05:08:12.03 and minimum established rates may receive principal forgiveness as authorized by the Act in an amount determined by the board. Applicants seeking assistance to implement a process, material, technique, or technology to address water or energy efficiency goals, mitigate storm water run-off, or encourage sustainable project planning, design, and construction may receive principal forgiveness in an amount determined by the board without meeting the affordability criteria and minimum established rate.
Source: 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:12.02. Principal forgiveness amount determination. In exercising its discretion in determining the amount of principal forgiveness, the board may consider the following decision-making factors, which are set forth in alphabetical order:
(1) Annual utility operating budgets;
(2) Available local cash and in-kind contributions;
(3) Available program funds;
(4) Compliance with permits and regulations;
(5) Debt service capability;
(6) Economic impact;
(7) Other funding sources;
(8) Readiness to proceed;
(9) Regionalization or consolidation of facilities;
(10) Technical feasibility;
(11) Utility rates; and
(12) Water quality benefits.
Source: 36 SDR 208, effective June 28, 2010; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:12.03. Affordability criteria to determine principal forgiveness eligibility. All applicants will be awarded points to determine principal forgiveness eligibility as follows: five points if an applicant's median household income is less than or equal to ninety-five percent of the statewide median household income; three points if an applicant's median household income is less than or equal to one hundred and five percent of the statewide median household income and greater than ninety-five percent of the statewide median household income; one point if the applicant's 2020 census population is less than the applicant's 2010 census population; and one point if an applicant's county unemployment rate is greater than the statewide unemployment rate. If the boundaries of an applicant are located in more than one county, the unemployment rate of the county with the largest percentage of the applicant's population will be used. Applicants must receive a minimum of five points to be eligible for principal forgiveness.
For the purposes of this section, the term, unemployment rate, means the 2021 average unemployment rate for a county or state, as applicable, as determined by the South Dakota Department of Labor and Regulation, Labor Market Information Center.
Source: 41 SDR 173, effective May 11, 2015; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.
Note: The 2021 average unemployment rate for a county or state is available at no cost over the internet at https://danr.sd.gov/Funding/EnvironmentalFunding/docs/2020_MHI.xlsx
74:05:08:13. Applications. An applicant for assistance shall submit an application to the board on forms obtained from the department. An application shall not be considered by the board until the secretary has determined that the application is complete. A complete loan application must include:
(1) An application form to include:
(a) Certification of Clean Water Needs Categories;
(b) Certification Regarding Debarment, Suspension, and Other Responsibility Matters; and
(c) Cost and Effectiveness Certification Form;
(2) Two years of the most recent audits or statements to include specific accounting of the fund pledged for repayment of the loan;
(3) The current year's budget;
(4) Documentation of the current user rates and surcharges, if applicable;
(5) A resolution of authorized signatory for submittal of application and signing of payment requests;
(6) A draft facilities plan; and
(7) Amortization schedules for all existing debt secured by the proposed revenue pledged.
Source: 15 SDR 20, effective August 7, 1988; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.
74:05:08:13.01. Application review and completeness determination. The secretary shall review an application for completeness in accordance with the guidelines in § 74:05:08:13. The secretary shall notify the applicant within 30 days after the application deadline that the application is complete or incomplete. If the application is incomplete, the secretary shall identify in the notice those items required to complete the application. Except as addressed in §§ 74:05:08:13.02 and 74:05:08:13.03, the applicant has 20 days to provide additional information intended to complete an application. The secretary shall notify the applicant whether or not the resubmission or additional information is satisfactory to complete the application.
The secretary shall conduct an overall review of the applicant's financial status, the financial assistance approval criteria as identified in § 74:05:08:12, and the factors for principal forgiveness decision making as identified in § 74:05:08:12.02. The secretary shall prepare a summary of the applicant's financial status and may provide a copy to the board. This summary may include an analysis of all assets and liabilities and an analysis of the applicant's financial capability as documented by the most recent audit or financial statement. The secretary shall recommend approval or denial of financial assistance. The secretary's recommendation for approval of financial assistance may include awarding any combination of principal forgiveness, loan, or partial funding from this program or in combination with other programs.
Source: 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:13.02. Facilities plan submittal. Any applicant requesting assistance for a wastewater treatment works or storm water project must prepare a facilities plan. A facilities plan is not required from an applicant requesting funding for other types of projects. The facilities plan shall at minimum provide the information contained in subdivision 74:05:08:01(6). The applicant shall be notified of any deficiencies in the draft facilities plan submitted with the application. A completed facilities plan must be received by the department to initiate the environmental review process. The facilities plan is not considered complete until the following items are received:
(1) Information to address the deficiencies identified by the secretary;
(2) Receipt of evidence of advertisement of a public hearing;
(3) Minutes from the public hearing;
(4) Responses from the U.S. Fish and Wildlife Service; South Dakota Department of Game, Fish and Parks; Natural Resources Conservation Service; U.S. Army Corps of Engineers; and the State Historical Preservation Office; and
(5) Resolution of any issues identified in the public hearing or by the agencies listed in § 74:05:08:13.02(4).
Source: 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010; 40 SDR 14, effective July 29, 2013; 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.
74:05:08:13.03. Environmental determination. For projects that pursuant to the Act require an environmental review, the environmental review process must be completed before the closing of the loan. For projects requiring a Categorical Exclusion, the process is considered complete upon publication of the Categorical Exclusion. For projects requiring a Finding of No Significant Impact determination, the process is considered complete when the 30-day comment period following the publication of the Finding of No Significant Impact has elapsed and any comments have been addressed.
Source: 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:14. Eligible use of funds. Financial assistance may be awarded for wastewater treatment works, storm water projects, and nonpoint source projects. Eligible uses may include:
(1) Any one or more of the following items;
(a) Facilities plan preparation and financial assistance application preparation;
(b) Engineering, environmental, architectural, legal, fiscal, or economic studies;
(c) Surveys, designs, plans, land acquisition, working drawings, specifications, equipment purchases, or other necessary actions for erection, building acquisition, alteration, or remodeling improvement;
(d) Extension of eligible works;
(e) A nonpoint source management project qualifying under § 319 of the Act;
(f) Operation and maintenance manual preparation; or
(g) Operator startup training;
(2) Refinancing existing debts if they were incurred and construction begun after March 7, 1985, and if the debts were used to fund projects identified in subdivision (1) of this section. In addition, the projects must satisfy the statutory requirements contained in § 602(b)(6) of the Act;
(3) Guarantee or purchase insurance for local debt obligations;
(4) Interim financing of projects identified in subdivision (1) of this section;
(5) Loans to an applicant for the purpose of relending the loan proceeds to private persons whose project consists of eligible nonpoint source projects; or
(6) Capitalized interest.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:15. Financial security. Specific requirements to secure a loan must be included in the assistance agreement. The loan must be secured by one or more of the following:
(1) Full faith and credit of the borrower;
(2) Pledges of taxes or assessments;
(3) Pledges of facility revenue;
(4) Liens on the interest of the applicant in all real and personal property, easements, rights-of-way, water rights, and similar property rights, including leasehold interests, used in connection with the facility or the proceeds therefrom whether owned at the time the loan is approved or acquired with loan funds;
(5) For loans made for interim financing of a project, the assignment of the proceeds of the federal grant or loan to be made by an agency or instrumentality of the United States government for the project; or
(6) For loans made to an applicant for relending to private persons whose project consists of eligible nonpoint source projects, the loan repayments from the private loan, and an assignment of an additional collateral securing the private loan.
Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 30 SDR 170, effective May 10, 2004.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:16. Time restrictions. Repealed.
Source: 15 SDR 20, effective August 7, 1988; 33 SDR 106, effective December 26, 2006; repealed, 36 SDR 208, effective June 28, 2010.
74:05:08:17. Duration of assistance. The board shall set the repayment period for each loan in the assistance agreement, which may not exceed five years for interim financing and 30 years in all other cases as permitted by the Act. The repayment period may not exceed the useful life of the project.
Source: 15 SDR 20, effective August 7, 1988; 28 SDR 4, effective July 22, 2001; 30 SDR 170, effective May 10, 2004; 33 SDR 106, effective December 26, 2006; 41 SDR 173, effective May 11, 2015.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:18. Assistance agreement interest rates. The board may set interest rates at any board meeting if the proposed action is included on the agenda posted for the meeting. The board shall set the interest rates based upon the following criteria:
(1) Current market rates;
(2) Rates secured on state issued matching funds; and
(3) Current demand for program funds.
The interest rate on the loan is 0 percent if the board determines to award a 100 percent principal forgiveness loan.
Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 25 SDR 93, effective January 9, 1999; 33 SDR 106, effective December 26, 2006; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
Cross-Reference: Notice of meetings of public bodies, SDCL 1-25-1.1.
74:05:08:18.01. Loans for nonpoint source projects. An applicant is eligible for a reduction in the interest rate if as part of its assistance agreement the applicant agrees to fund an eligible nonpoint source project in a watershed where the applicant is located or in a watershed or groundwater area that contributes water to the applicant's water system.
Source: 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.
74:05:08:18.02. Loans to project sponsors subject to the Build America, Buy America Act provisions. An applicant is eligible for a reduction in the interest rate if its project is subject to the Build America, Buy America Act, Public Law 117-58, provisions.
Source: 49 SDR 100, effective May 22, 2023.
General Authority: SDCL 46A-1-60.2.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3, inclusive.
74:05:08:19. Review of financial status. Repealed.
Source: 15 SDR 20, effective August 7, 1988; 21 SDR 97, effective November 28, 1994; 22 SDR 95, effective January 17, 1996; 28 SDR 4, effective July 22, 2001; 36 SDR 208, effective June 28, 2010; repealed, 40 SDR 14, effective July 29, 2013.
74:05:08:20. Assistance agreements. If an application is approved for funding, the board shall execute an assistance agreement with the sponsoring entity. The board shall establish the terms and conditions included in the assistance agreement. Assistance agreements for loans may include, but are not limited to, the following requirements of the recipient:
(1) To acquire all property rights necessary for the project including rights-of-way and interest in land needed for the construction, operation, and maintenance of the facility; to furnish title insurance, a title opinion, or other documents showing the ownership of the land, mortgages, encumbrances, or other lien defects; and to obtain and record the releases, consents, or subordinations to the property rights for holders of outstanding liens or other instruments as necessary for the construction, operation, and maintenance of the facility;
(2) To provide security as required in § 74:05:08:15;
(3) To provide for the receipt of revenues sufficient to meet the requirements of debt service, operation, and maintenance and to establish reserves in an amount sufficient to assure that expenses and payments will be paid on time for loan installments, emergency maintenance, and replacement of assets that have a useful life less than the repayment period of the loan;
(4) To acquire and maintain insurance coverage, including fidelity bonds;
(5) To establish and maintain books and records relating to the construction and operation of the facility and its financial affairs;
(6) To provide the secretary access to all books and records relating to the facility and access to the property of the system so that the secretary may ascertain whether the sponsoring entity is complying with the provisions of this chapter and with the funding agreement;
(7) To use funds that remain available after all costs to the facility have been paid for needed extensions, enlargements, and improvements of the facility with the written permission of the board;
(8) Not to sell, transfer, lease, or otherwise encumber the facility, any portion of the facility, or interest in the facility to a public entity without the prior written consent of the board while the funding agreement is in effect, or to a private entity;
(9) If the undertaking would obligate the source of funds pledged to repay the assistance agreement, to agree not to borrow money from any source, enter into an agreement, or incur other liabilities in connection with the facility, exclusive of normal maintenance, without the prior written consent of the board;
(10) To agree that upon default in the payments of principal and accrued interest on the loan or in the performance of any covenant or condition, the board may, at its option, do one or more of the following:
(a) Declare immediately due and payable the entire principal amount then outstanding and the accrued interest and all costs associated with collection of the outstanding balance;
(b) For the account of the borrower incur and pay reasonable expenses for repair, maintenance, and operation of the facility and other expenses necessary to cure the cause of default; or
(c) Take possession of the facility, repair, maintain, operate, sell, lease, or otherwise dispose of the facility to another entity;
(11) To secure written approval from the secretary for any changes or modifications in the plans of a facility before or during construction according to conditions and specifications set forth in the funding agreement.
The board may amend assistance agreements as it considers necessary and circumstances warrant.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:21. Disbursement of funds. The secretary shall approve all disbursements to the recipient.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 36 SDR 208, effective June 28, 2010.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:22. Accounting methods and audits. Each recipient must maintain accounting records in accordance with applicable financial and reporting standards as set forth in the assistance agreement. Each recipient must agree to have audits performed in accordance with applicable state and federal law, as set forth in the assistance agreement. Each loan recipient must retain all accounting records, books, and supporting material for a minimum of three years after completion of the project. Each grant recipient must retain all accounting records, books, and supporting material for a minimum of three years after the end of the assistance agreement. These accounting records must be made available for inspection by state and federal representatives upon request.
Source: 15 SDR 20, effective August 7, 1988; 19 SDR 102, effective January 17, 1993; 21 SDR 97, effective November 28, 1994; 28 SDR 4, effective July 22, 2001; 28 SDR 95, effective December 19, 2001; 31 SDR 89, effective December 27, 2004; 33 SDR 106, effective December 26, 2006.
General Authority: SDCL 46A-1-60.3.
Law Implemented: SDCL 46A-1-60.1 to 46A-1-60.3.
74:05:08:23. Loans to communities participating in the MWPP program.Repealed.
Source: 25 SDR 93, effective January 9, 1999; repealed, 28 SDR 4, effective July 22, 2001.
74:05:08:24. Small community planning grants.Repealed.
Source: 28 SDR 4, effective July 22, 2001; repealed, 30 SDR 100, effective December 23, 2003.
