Sec. 6013 - Funding Agreements

§ 6013. Funding Agreements

(a) Letter of Maximum Conditional Eligibility.

(1) After the maximum conditional eligibility determinations are confirmed by the Commission, Staff shall send a letter to each applicant whose project received a determination that the project is conditionally eligible for Program funding but additional information is needed to execute a funding agreement. The required information shall include:

(A) Applicant's audited financial statements;

(B) Items stated in section 6013(c);

(C) Additional information, as applicable, on the status of environmental documentation, labor compliance, urban water management plans, agricultural water management plans, groundwater management plans, or GSP(s), and potential effects of other conditionally eligible projects on the applicant's public benefits;

(D) Final project costs, schedule, and scope of work;

(E) Evidence of bilateral communications between the applicant and any owners and operators of potentially impacted facilities regarding the potential impacts of the proposed project to their facilities;

(F) Reporting interval for status of section 6013(c) items; and

(G) A statement acknowledging that any applicant seeking funding for a project situated on any land with the following status must demonstrate, prior to the execution of the funding agreement, the existence of a limited waiver of sovereign immunity between the Commission and the governing body of the Tribe entered into pursuant to section 6013(f)(8):

1. Land that is owned by or subject to an ownership or possessory interest of the Tribe;

2. Land that is "Indian lands" of the Tribe, as that term is defined by 25 U.S.C. § 81(a)(1); or

3. Land that is owned by tribal entity, or Tribe, within the external borders of such Indian lands.

(b) For projects that were ranked, but did not receive a maximum conditional eligibility amount, a letter will be sent to the applicant stating that the project is still ranked and may be eligible for funding if additional funding became available.

(c) The Commission will not encumber funds and funds will not be made available to an applicant, (with the exception of funding associated with subsection 6010) until such time as the provisions of these regulations have been satisfied, the Commission holds a public hearing allowing for public review and comment on the information required by this subdivision, and the Commission determines that all required provisions have been met. Each applicant shall submit documentation demonstrating that the following items from Water Code section 79755(a) have been completed:

(1) The project applicant has entered into a contract pursuant to Water Code section 79755(a)(2) with each party that will derive benefits, other than public benefits that ensures each party to the contract will pay its share of the total costs of the project;

(2) The project applicant has entered into a contract pursuant to Water Code section 79755(a)(3) with CDFW, State Water Board, and the Department, which administer public benefits of the project after the individual agency makes a finding that the public benefits of the project meet all of the requirements of Water Code sections 79750 et seq.;

(3) The project applicant has submitted completed feasibility studies;

(4) The project applicant has completed the final environmental documentation associated with the project; and

(5) The project applicant has obtained all federal, state, and local approvals, certifications, and agreements required.

(d) The applicant shall submit to the Commission progress reports, monthly, quarterly, semi-annually or annually, as directed by the Commission, that document progress the applicant is making toward complying with the items contained in this section, including any changes in the magnitude of public benefits that could affect cost allocation. Progress reports will be posted on the Commission's website within one week of receipt.

(e) Funding for the Completion of Environmental Documentation and Permitting of a Project. Notwithstanding subsection 6013(b), the Commission may provide funding for a project to complete environmental documentation and obtain the necessary permits for constructing and operating the project when the letter of conditional eligibility is sent. Funding for activities associated with the completion of environmental documentation and obtaining permits shall be subject to the following conditions:

(1) Funds shall be specifically requested by the applicant in the application;

(2) Funds shall not be disbursed until the applicant enters into a funding agreement with the Commission and has met all disbursement conditions;

(3) Funding to be provided for the completion of environmental documentation and obtaining permits shall be identified in the letter of conditional eligibility; and

(4) Funding for the completion of environmental documentation and obtaining permits shall not exceed 5 percent of the maximum amount of Program funding the project is eligible for.

(f) Funding Agreement

(1) Funding for the capital costs of a project remains contingent until all items in section 6013(c) are complete and have been submitted to the Commission. The Commission may determine at a regularly scheduled meeting that the applicant has failed to make substantial progress toward completing these required documents and the project is no longer eligible for Program funding.

(2) After January 1, 2022, a project will not be eligible for funding if the following conditions are not met:

(A) All feasibility studies are complete and draft environmental documentation is available for public review;

(B) The Commission makes a finding that the project is feasible, and will advance the long-term objectives of restoring ecological health and improving water management for beneficial uses of the Delta;

(C) The Director of the Department receives commitments from not less than 75 percent of the non-public benefit cost shares of the project;

(3) Applicants shall provide a description of changes to the planned project that have occurred since the receipt of the letter of maximum conditional eligibility including any changes to planned operations.

(4) When an applicant has complied with the requirements in section 6013(f)(1), (2) and (3), the Commission shall consider any changes that have occurred to the project since the maximum conditional eligibility determination was made and determine the final Program cost share.

(5) The Program cost share shall be encumbered after all items in section 6013(f) are complete and the Commission approves final funding.

(6) Funds will not be disbursed until the applicant enters into a funding agreement with the Commission.

(7) The Commission shall not reimburse any costs incurred prior to November 4, 2014, and shall not allocate funds for any project before December 15, 2016.

(8) Tribal Waiver Requirements. If the funding recipient is a Tribe, the following requirements must be met before funding for projects located on land with any of the specified status in section 6013(a)(1)(G) can enter into a funding agreement with the Commission pursuant to this section.

(A) The governing body of the Tribe must enter into a limited waiver of sovereign immunity with the Commission related to its receipt of funding for the duration of the planning horizon period of the project. This waiver must include a consent to suit by State of California, Commission, Department, CDFW, State Water Board or the California Attorney General's Office in the courts of the State of California, with respect to any action in law or equity commenced by the State of California, Commission or Department, CDFW, State Water Board or the California Attorney General's Office to enforce the restrictions on the use of funds or the operation of the project by the Tribe related to funds received pursuant to this chapter, irrespective of the form of relief sought, whether monetary or otherwise, except for purposes of relief under this limited waiver, Tribes shall receive the same protections as a California public entity under California Government Code sections 818 and 818.8.

(B) The Tribe must provide the Commission with documentation demonstrating the limited waiver of sovereign immunity entered into pursuant to this section has been properly adopted in accordance with the Tribe's Constitution or other organic law, by-laws and ordinances, and applicable federal laws.

(C) The limited waiver of sovereign immunity related to operations and management of the proposed project and its public benefits must remain in effect until the end of the project's planning horizon.

(1. New section filed 3-7-2017; operative 3-7-2017 pursuant to Government Code section 11343.4(b)(3) (Register 2017, No. 10).)

Note: Authority cited: Sections 79705, 79711, 79750, 79751, 79752, 79753, 79755 and 79757, Water Code. Reference: Sections 79705, 79711, 79750, 79751, 79752, 79753, 79755 and 79757, Water Code.

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