Providing Financial Assistance to Land Occupiers

All BWSR funds used by a recipient to provide financial assistance to a landowner or land occupier requires adequate project assurances. 

Project technical assessment

I. Procedure

Once an issue or location for a potential conservation project is identified, a technical assistance provider will gather information necessary to provide an initial recommendation to address the resource concern, including appropriate best management practices.  

II. Guidance

The optional BWSR technical assessment form can be utilized to assist with completing the assessment. It is recommended that the organization doing the technical assessment get written approval from the land occupier or landowner for access to the parcel. 

Project application and agreements

I. Procedure

After the technical assessment is completed, an application must be submitted by the land occupier when requesting financial assistance. The organization will then review the completed application and technical assessment information to determine whether or not to fund the proposed conservation practice(s). The minimum requirements for evaluating applications are: 

• Proposed conservation practice(s) meet intent of funding source and align with organization priorities.
• Technical assessment was completed by a technical assistance provider.
• Work completed prior to the signing of the agreement is not eligible.  

If the organization and land occupier want to proceed with financial assistance, an agreement must be completed between the organization and land occupier. If the land occupier does not have all required legal land rights including but not limited to access and authority to both construct and maintain the conservation practice(s), then the landowner’s signature is also required. Where the cooperation of several land occupiers is required, a group project addendum may be used in lieu of individual agreements with land occupiers. Agreement procedures must follow the organization’s policies or must be documented in the organization meeting minutes as the legal record of the organization’s action and intent. 

A completed approved agreement provides the legal standing to ensure practices are completed and maintained according to approved standards and specifications. 

II. Guidance

The organization’s decision should be clearly communicated to the land occupier. 

Where a project involves land within more than one organizational boundary, the organizations should consider identifying a lead organization for the project and land occupier(s) to be working with and may want to consider an agreement to pool or share resources to implement a joint project. 

Tennessen Warning Notice: 

The purpose of Minnesota Statutes, section 13.04, subdivision 2 (“Tennessen Warning”) is to enable people to make informed decisions about whether to give information about themselves to the government. Local Governments must give individuals notice when collecting private or confidential information from them. If Private Data is collected and disseminated as part of a BWSR Grant, BWSR will take the position that a Tennessen warning notice was provided by the LGU to all necessary individuals. 

• Local Governments and grant recipients should ask the individual(s) to sign and date a Tennessen warning notice and give the individual(s) a copy as a best practice. However, notices do not need to be in writing.
• Local Governments and grant recipients should limit the private data collected or disseminated to only the data that is necessary to administer a program.
• Local Governments may also want to request assistance from their legal counsel and/or the Department of Administration.

Implementation

I. Procedure

Once the agreement has been approved, the land occupier proceeds with implementation activities.  The minimum requirements for the organization include the following:       

• Monitor implementation and certify completion according to the plans and specifications.
• Review and certify any proposed changes or amendments to the project(s).
• Review documentation submitted by the land occupier to ensure expenses are consistent with the established project(s). ie; invoices and receipts if applicable.

Amendments to conservation practice agreements

I. Procedure

Changes to an executed agreement are considered an amendment to the agreement and subject to review and approval by the organization.  Amendments may be needed when uncontrollable events outside the land occupiers control occur and should be approved with discretion. The procedure to amend an agreement is as follows:

1. Information is provided justifying the need for an amendment and an amendment form is completed that references the original agreement terms and identifies amended terms.
2. If the amendment is related to a technical aspect of the project, the technical assistance provider reviews the proposed amendment and certifies on the form that the change is necessary. Technical assistance provider signature is not required for non-technical amendments.
3. The organization reviews the amendment request and either approves or denies the request. If approved, the amendment form must be signed and dated by all parties to the agreement.
4. Amendments involving changes to financial assistance terms must be filed in advance of and approved prior to final payment. 

 II. Guidance

The organization’s decision should be clearly communicated to the land occupier.

Certification and payment

I. Procedure

Payments must be made according to the terms of the agreement and can only be made for activities that have been completed and certified by the technical assistance provider. Partial payments may be made. The land occupier is required to repay a partial payment if the practice is not satisfactorily completed. 

The procedures for issuing payment for a percent-based agreement or flat rate agreement are as follows:

1. The land occupier requests payment by signing a voucher form that summarizes the work completed.

   1. For percent-based agreements, the land occupier incurs all expenses for project implementation and submits receipts or invoices to the organization.  The land occupier certifies, by signing a voucher form, that the submitted materials are accurate and a true summation of actual costs of practice construction. Receipts or invoices to include the following information:

      1. the name of the vendor;

      2. the materials, labor, or equipment used to establish the practice; 

      3. the component unit costs (e.g., hours, feet, cubic yards, etc.); and

      4. invoice date, including the date(s) the work was performed.

   2. For flat rate agreements, receipts or invoices of the actual costs are not required, but the completed date must be verifiable. Payment is based on rates set by local policy.

2. The technical assistance provider certifies the practice was completed according to standards and specifications by signing a voucher. Practice certification may also be accomplished through detailed written communication or other documentation from the technical assistance provider attached to the voucher.
   1. For percent-based agreements, the technical assistance provider also certifies the receipts or invoices submitted reflect the actual cost of the practice.
3. The organization signs the voucher to certify they have reviewed the voucher and all supporting information, including invoices/receipts, and that the quantities and billed cost or disbursements are accurate and are in accordance with terms of the agreement.
4. Payment of the voucher can be processed as any other bill or invoice the organization receives, according to the organization’s policies and procedures. Payment must not exceed the amount authorized for financial assistance from the agreement.

The procedures for issuing payment for an incentive agreement are as follows:

1. The land occupier requests payment by signing an incentive voucher, certifying that the activity(s) was completed according to the terms specified in the incentive agreement.
2. The organization signs the voucher, certifying that they have reviewed the voucher and all supporting information and that it is accurate and in accordance with the terms of the agreement.
3. Payment of the voucher can be processed as any other bill or invoice the organization receives, according to the organization’s policies and procedures. Payment must not exceed the amount authorized for financial assistance from the agreement. 

II. Guidance

At the recommendation of legal counsel, a joint payment may be made to the land occupier and contractor. It is highly recommended to consult with BWSR staff before implementing other legal counsel recommended payment procedures to ensure compliance.

Requests for partial payment should be considered and approved for payment only when the practice(s) will still be completed within the terms of the agreement and according to the specifications and standards as planned.

Any expenses to correct damages caused by extended delays within the control of the land occupier and could have been avoided should be the responsibility of the land occupier.

Services and materials provided by the land occupier may be credited toward the total eligible cost of the practice. Organization rates for land occupier services should be established through local policy and provided to the land occupier prior to project initiation.

A letter or notice of payment approval, a copy of the voucher or communication from the technical assistance provider, and certificate of completion and/or as-builts should be sent to the land occupier along with the payment.

Conservation practice agreement noncompliance 

I. Procedure

Failure to complete, maintain, or repair a conservation practice or unauthorized alteration is considered noncompliance with an executed conservation practice agreement. If the organization discovers noncompliance, they must take action to resolve and notify BWSR.  The land occupier is liable to the organization per the terms of the agreement, unless the failure was caused by reasons beyond the land occupier’s control. Funds re-paid to an organization from a land occupier who has failed to maintain a practice for its effective life, must be reallocated for eligible activities as allowed in the original program, less the administrative cost of the organization, or returned to BWSR. 

 II. Guidance

A recommended process for addressing noncompliance issues is listed below:

1.    After learning of potential noncompliance issue, begin with review of the agreement language, project file contents, and operation and maintenance plan and discuss the noncompliance with the land occupier (and landowner if different than land occupier).

2.    Complete an on-site investigation, take photographs, and collect information as needed to document the condition of the practice. Consult with a Technical Assistance Provider as needed.

3.    Consult the BWSR Grant Manager and/or BWSR program manager.

4.    Keep a log of dates, times, communications, and facts surrounding the investigation. Keep this log in the project file as documentation of the facts. 

5.    If the initial investigation identifies a noncompliance situation and the land occupier agrees to take immediate corrective action, document this decision and follow-up in a reasonable amount of time to see that corrective actions were taken.

6.    If the land occupier and/or landowner is not cooperative, will not allow access, or corrective actions are not implemented within the requested timeframe, a formal Corrective Action Plan is required.  A Corrective Action Plan should:

1. solicit land occupier and/or landowner input to determine if there was knowledge of conditions or has suggestions of actions that are different from what the technical assistance provider has identified but may achieve the same desired end result;
2. reference the items in the agreement or operation and maintenance plan that are not in compliance;
3. specify action(s) that must be completed to be brought back into compliance;
4. give reasonable deadlines for performance; and
5. request a response from the land occupier within a reasonable time

7.   If the land occupier fails to respond, refuses to sign and/or does not implement the Corrective Action Plan, the organization should request the assistance of the organization’s attorney and notify BWSR.

History