(a) Eligible projects. Projects that address or prevent violations of health-based drinking water standards. These include projects needed to maintain compliance with existing national primary drinking water regulations for contaminants with acute and chronic health effects. Projects to replace aging infrastructure are eligible for assistance if they are needed to maintain compliance or further the public health protection objectives of the Act. The specific projects and activities eligible for assistance for a particular funding year will be established annually in the IUP based on the eligible project categories and eligible project-related costs in (b) and (c) of this section, as authorized by the Act.
(b) Eligible Project Categories.
  (1) Treatment. Examples of projects include, but are not limited to, installation or upgrade of facilities to improve the quality of drinking water to comply with primary or secondary standards and point of entry or central treatment under 42 U.S.C. §300f(4)(B)(i)(III).
  (2) Transmission and distribution. Examples of projects include, but are not limited to, installation or replacement of transmission and distribution pipes to improve water pressure to safe levels or to prevent contamination caused by leaks or breaks in the pipes.
  (3) Source. Examples of projects include, but are not limited to, rehabilitation of wells or development of eligible sources to replace contaminated sources.
  (4) Storage. Examples of projects include, but are not limited to, installation or upgrade of eligible storage facilities, including finished water reservoirs, to prevent microbiological contaminants from entering a public water system.
  (5) Consolidation. Eligible projects are those needed to consolidate water supplies where, for example, a supply has become contaminated or a system is unable to maintain compliance for technical, financial, or managerial reasons.
  (6) Creation of new systems. Eligible projects are those that, upon completion, will create a community water system to address existing public health problems with serious risks caused by unsafe drinking water provided by individual wells or surface water sources. Eligible projects are also those that create a new regional community water system by consolidating existing systems that have technical, financial, or managerial difficulties. Projects to address existing public health problems associated with individual wells or surface water sources must be limited in scope to the specific geographic area affected by contamination. Projects that create new regional community water systems by consolidating existing systems must be limited in scope to the service area of the systems being consolidated. A project must be a cost-effective solution to addressing the problem. The applicant must have given sufficient public notice to potentially affected parties and must have considered alternative solutions to addressing the problem. Capacity to serve future population growth cannot be a substantial portion of a project.
  (7) Green Projects. Projects that qualify as green projects, in accordance with EPA definitions, based upon information provided within the submitted project information form, the application, and if necessary, the business case.
(c) Eligible project-related costs. In addition to costs needed for the project itself, the following project-related costs are eligible for assistance:
  (1) Pre-project costs for planning and design.
  (2) Costs for the acquisition of land only if needed for the purposes of locating eligible project components. The land must be acquired from a willing seller.
  (3) Costs for restructuring systems that are in significant noncompliance with any national primary drinking water regulation or variance or that lack the technical, financial, and managerial capability to ensure compliance with the requirements of the Act, unless the systems are ineligible under paragraph (d)(2) or (d)(3) of this section.
(d) Ineligible applicants. Assistance from the Fund may not be provided to:
  (1) Federally-owned public water systems or for-profit noncommunity water systems.
  (2) Systems that lack the technical, financial, and managerial capability to ensure compliance with the requirements of the Act, unless the assistance will ensure compliance and the owners or operators of the systems agree to undertake feasible and appropriate changes in operations to ensure compliance over the long term.
  (3) Systems that are in significant noncompliance with any national primary drinking water regulation or variance, unless:
    (A) The purpose of the assistance is to address the cause of the significant noncompliance and will ensure that the systems return to compliance; or
    (B) The purpose of the assistance is unrelated to the cause of the significant noncompliance and the systems are on enforcement schedules (for maximum contaminant level and treatment technique violations) or have compliance plans (for monitoring and reporting violations) to return to compliance.
(e) Ineligible projects. The following projects are ineligible for assistance:
  (1) Dams or rehabilitation of dams.
  (2) Water rights, except if the water rights are owned by a system that is being purchased through consolidation as part of a capacity development strategy.
  (3) Reservoirs or rehabilitation of reservoirs, except for finished water reservoirs and those reservoirs that are part of the treatment process and are on the property where the treatment facility is located.
  (4) Projects needed primarily for fire protection.
  (5) Projects needed primarily to serve future population growth. Projects must be sized only to accommodate a reasonable amount of population growth expected to occur over the useful life of the facility.
  (6) Projects that have received assistance from the national set-aside for Indian Tribes and Alaska Native Villages under 42 U.S.C. §300j-12(i).
(f) Ineligible project-related costs. The following project-related costs are ineligible for assistance from the Fund:
  (1) Laboratory fees for routine compliance monitoring.
  (2) Operation and maintenance expenses.

Source Note: The provisions of this §371.2 adopted to be effective August 4, 2010, 35 TexReg 6680; amended to be effective July 4, 2016, 41 TexReg 4844; amended to be effective March 18, 2019, 44 TexReg 1443