1. (a) All projects which receive assistance from the fund under this chapter shall satisfy the following federal requirements as they apply:

   1. (1) National Environmental Policy Act of 1969, PL 91-190;
   2. (2) Archeological and Historic Preservation Act of 1974, PL 93-291;
   3. (3) Clean Air Act, 42 U.S.C. 7506(c);
   4. (4) Coastal Barrier Resources Act, 16 U.S.C. 3501 et seq.;
   5. (5) Coastal Zone Management Act of 1972, PL 92-583, as amended;
   6. (6) Endangered Species Act, 16 U.S.C. 1531, et seq.;
   7. (7) Executive Order 11593, Protection and Enhancement of the Cultural Environment;
   8. (8) Executive Order 11988, Floodplain Management;
   9. (9) Executive Order 11990, Protection of Wetlands;
   10. (10) Farmland Protection Policy Act, 7 U.S.C. 4201 et seq;
   11. (11) Fish and Wildlife Coordination Act, PL 85-624, as amended;
   12. (12) National Historic Preservation Act of 1966, PL 89-665, as amended;
   13. (13) Safe Drinking Water Act, §1424(e), PL 92-523, as amended;
   14. (14) Wild and Scenic Rivers Act, PL 90-542, as amended;
   15. (15) Demonstration Cities and Metropolitan Development Act of 1966, PL 89-754, as amended;
   16. (16) Section 306 of the Clean Air Act and §508 of the Clean Water Act, including Executive Order 11738, Administration of the Clean Air Act and the Federal Water Pollution Control Act with Respect to Federal Contracts, Grants, or Loans;
   17. (17) Age Discrimination Act, PL 94-135;
   18. (18) Civil Rights Act of 1964, PL 88-352;
   19. (19) Section 13 of PL 92-500; Prohibition against sex discrimination under the Federal Water Pollution Control Act;
   20. (20) Executive Order 11246, Equal Employment Opportunity;
   21. (21) Executive Orders 11625 and 12138, Women's and Minority Business Enterprise;
   22. (22) Rehabilitation Act of 1973, PL 93-112 (including Executive Orders 11914 and 11250);
   23. (23) Uniform Relocation and Real Property Acquisition Policies Act of 1970, PL 91-646;
   24. (24) Executive Order 12549, Debarment and Suspension;
   25. (25) The Wilderness Act, 16 U.S.C. 1131 et seq.; and
   26. (26) Environmental Justice, Executive Order 12898.

2. (b) Requirements for Minority Business Enterprise/Women's Business Enterprise/Small Business Enterprise/Small Business Enterprise in a Rural Area.

   1. (1) Definitions. For the purposes of this subsection the following definitions shall apply.

      1. (A) Construction--Notwithstanding the provisions of §371.2 of this title (relating to Definition of Terms), any contract or agreement to provide the building, erection, alteration, remodeling, improvement or extension of a DWSRF funded project.
      2. (B) Contract--A written agreement between a DWSRF recipient and another party and any lower tier agreement for equipment, supplies, or construction necessary to complete the project. Includes personal and professional services, agreements with consultants, and purchase orders.
      3. (C) Equipment--Tangible, nonexpendable personal property having a useful life of more than one year and an acquisition cost of $5,000 or more per unit.

      4. (D) MBE--A Minority Business Enterprise, a business concern that is:

         1. (i) at least 51% owned by one or more minority individuals who are U.S. Citizens, or in the case of a publicly owned business, at least 51% of the stock is owned by one or more minority individuals who are U.S. Citizens; and
         2. (ii) whose daily business operations are managed and directed by one or more of the minority owners. Minority individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans or other groups whose members have been found to be disadvantaged by the Small Business Act or by the Secretary of Commerce under Executive Order 11625, §5.
      5. (E) Prime contract--Any contract, agreement or other action entered into by a DWSRF applicant to procure construction, services, equipment or supplies.
      6. (F) SBE--A Small Business Enterprise, a business concern, including its affiliate, that is independently owned and operated, not dominant in the field of operation in which it operates, and that is qualified as a small business by the Small Business Administration.
      7. (G) SBRA--A Small Business Enterprise in a Rural Area, a small business concern that is located and conducts its principal operations in a "non-metropolitan county" as delineated by the Small Business Administration.
      8. (H) Services--A contractor's time and efforts which do not involve delivery of a specific end item other than documents (e.g. reports, design drawings, specifications, etc.).
      9. (I) Subcontract--Any contract, agreement or other action to procure construction, services, equipment or supplies between a prime contractor and any other business to supply such goods or services for a DWSRF financial assistance action.
      10. (J) Supplies--All tangible personal property other than equipment.

      11. (K) WBE--A Women's Business Enterprise, a business concern that is:

          1. (i) at least 51% owned by one or more women, or in the case of a publicly owned business, at least 51% of the stock is owned by one or more women; and
          2. (ii) whose daily business operations are managed and directed by one or more of the women owners.

   2. (2) Affirmative action steps--Those steps necessary by the applicant and the prime contractor to ensure that MBEs, WBEs, SBEs and SBRAs are utilized when possible including:

      1. (A) placing qualified MBEs, WBEs, SBEs and SBRAs on solicitation lists;
      2. (B) assuring that MBEs, WBEs, SBEs and SBRAs are solicited whenever they are potential sources;
      3. (C) dividing total requirements, when economically feasible, into smaller tasks or quantities to permit maximum participation by MBEs, WBEs, SBEs and SBRAs;
      4. (D) establishing delivery schedules, where the requirement permits, which encourage participation by MBEs, WBEs, SBEs and SBRAs;
      5. (E) using the services and assistance of the Small Business Administration and the Minority Business Development Agency of the Department of Commerce; and
      6. (F) requiring the prime contractor, if subcontracts are to be let, to take the affirmative action steps listed in subparagraphs (A)-(E) of this paragraph.

   3. (3) Requirements for Applicants.

      1. (A) Pursuant to EPA policy and legal requirements, a goal oriented system has been established to promote MBE and WBE participation on all projects receiving funds from the DWSRF. In addition, it is the intent that SBEs and SBRAs be afforded the maximum practicable opportunity to participate in EPA awarded financial assistance programs.
      2. (B) Prior to receiving a loan commitment the applicant will submit an affirmative action plan on forms provided by the board. The plan shall be signed by the authorized representative of the applicant and shall contain estimates and/or actual amounts of MBE and WBE participation in the categories of construction, services, equipment, or supplies. Copies of any existing or proposed MBE and WBE contracts should be attached.
      3. (C) In all procurements, the applicant will undertake a good faith effort to attract and utilize MBE, WBE, SBE and SBRA participation. This must include, but not be limited to taking the six affirmative action steps.
      4. (D) In all procurements, the applicant will include provisions in prime contracts requiring the prime contractors to submit an affirmative action plan, and to undertake a good faith effort to attract and utilize MBEs, WBEs, SBEs and SBRAs, through subcontracts. This must include but not be limited to taking the affirmative action steps described in paragraph (2)(A)-(E) of this subsection.
      5. (E) As a condition to the release of funds or at any other time contracts or subcontracts are entered into, the applicant will report MBE and WBE participation and will provide documentation of good faith efforts on forms provided by board staff.
      6. (F) The applicant and the prime contractor(s) will maintain all records documenting required good faith efforts.

Source Note:The provisions of this §371.18 adopted to be effective March 18, 1997, 22 TexReg 2502; amended to be effective October 8, 1998, 23 TexReg 10042.