Amend Amendment No. 53 by Dunnam/Averitt to CSHB 2912 (pages
93-97, proposed amendments packet) as follows:
(1) On page 93 of the packet strike lines 7 and 8 and
substitute:
amending Subdivisions (10) and (13) to read as follows:
(2) On page 93 of the packet, strike line 18 and substitute:
sole source impairment zone, as defined by Section 26.502; and
(3) On page 94 of the packet, strike line 8 and substitute:
sole source impairment zone, as defined by Section 26.502; and
(4) Strike all of the amendment below page 94, line 11 of
the packet, and substitute:
SECTION ____. Chapter 26, Water Code, is amended by adding
Subchapter L to read as follows:
SUBCHAPTER L. PROTECTION OF CERTAIN WATERSHEDS
Sec. 26.501. DEFINITIONS. In this subchapter:
(1) "Concentrated animal feeding operation" has the
meaning assigned by 30 T.A.C. Section 321.132 on the effective date
of this subchapter.
(2) "New concentrated animal feeding operation" means
a proposed concentrated animal feeding operation, any part of which
is located on property not previously authorized by the state to be
operated as a concentrated animal feeding operation.
(3) "Historical waste application field" means an area
of land that at any time since January 1, 1995, has been owned or
controlled by an operator of a concentrated animal feeding
operation on which agricultural waste from a concentrated animal
feeding operation has been applied.
Sec. 26.502. APPLICABILITY. This subchapter applies only in
a major sole source impairment zone. In this subchapter, "major
sole source impairment zone" means a watershed that contains a
reservoir:
(1) that is used by a municipality as a sole source of
drinking water supply for a population, inside and outside of its
municipal boundaries, of more than 140,000; and
(2) at least half of the water flowing into which is
from a source that, on the effective date of this subchapter, is on
the list of impaired state waters adopted by the commission as
required by 33 U.S.C. Section 1313(d), as amended:
(A) at least in part because of concerns
regarding pathogens and phosphorus; and
(B) for which the commission, at some time, has
prepared and submitted a total maximum daily load standard.
Sec. 26.503. REGULATION OF CERTAIN CONCENTRATED ANIMAL
FEEDING OPERATION WASTES. (a) The commission may authorize the
construction or operation of a new concentrated animal feeding
operation, or an increase in the animals confined under an existing
operation only by a new or amended individual permit.
(b) The individual permit issued or amended under Subsection
(a) must:
(1) provide for management and disposal of waste in
accordance with Subchapter B, Chapter 321, Title 30, Texas
Administrative Code;
(2) require that 100 percent of the collectible manure
produced by the additional animals in confinement at an expanded
operation or all of the animals in confinement at a new operation
must be:
(A) disposed of or used outside of the
watershed;
(B) delivered to a composting facility approved
by the executive director;
(C) applied to a waste application field that is
not an historical waste application field or owned or operated by
an owner or operator of a concentrated animal feeding operation;
(D) put to another beneficial use approved by
the executive director; or
(E) applied to an historical waste application
field that is owned or operated by the owner or operator of the
concentrated animal feeding operation only if:
(i) results of representative composite
soil sampling conducted at the waste application field and filed
with the commission show that the waste application field contains
200 or fewer parts per million of extractable phosphorus (reported
as P); or
(ii) the manure is applied, with
commission approval, in accordance with a detailed nutrient
utilization plan approved by the commission that is developed by:
(a) an employee of the
United States Department of Agriculture's Natural Resources
Conservation Service;
(b) a nutrient management
specialist certified by the United States Department of
Agriculture's Natural Resources Conservation Service;
(c) the State Soil and
Water Conservation Board;
(d) the Texas Agricultural
Extension Service;
(e) an agronomist or soil
scientist on the full-time staff of an accredited university
located in this state; or
(f) a professional
agronomist or soil scientist certified by the American Society of
Agronomy.
(c) The commission may approve a detailed nutrient
utilization plan approved by the commission that is developed by a
professional agronomist or soil scientist certified by the American
Society of Agronomy only if the commission finds that another
person listed by Subsection (b)(2)(E)(ii) cannot develop a plan in
a timely manner.
(d) The commission may not issue a general permit to
authorize the discharge of agricultural waste into or adjacent to
waters in this state from an animal feeding operation if such
waters are within a major sole source impairment zone.
(e) The commission and employees or agents of the commission
may enter public or private property at any reasonable time for
activities related to the purposes of this subchapter. The
commission may enforce this authority as provided by Section 7.032,
7.051, 7.052, or 7.105.
(f) This section does not limit the commission's authority
to include in an individual or general permit under this chapter
provisions necessary to protect a water resource in this state.
Sec. 26.504. WASTE APPLICATION FIELD SOIL SAMPLING AND
TESTING. (a) The operator of a concentrated animal feeding
operation shall contract with a person described by Section
26.503(b)(2)(E)(ii) selected by the executive director to collect
one or more representative composite soil samples from each waste
application field. The operator shall have sampling performed
under this subsection not less often than once every 12 months.
(b) Each sample collected under this section must be tested
for phosphorus and any other nutrient designated by the executive
director. The test results must be made available to the executive
director and the operator of the concentrated animal feeding
operation. The test results are public records of the commission.
(c) If the samples tested under Subsection (b) show a
phosphorus level in the soil of more than 500 parts per million,
the operator shall file with the commission a new or amended
nutrient utilization plan with a phosphorus reduction component
that is certified as acceptable by a person listed by Section
26.503(b)(2)(E)(ii).
(d) If the samples tested under Subsection (b) show a
phosphorus level in the soil of more than 200 parts per million but
not more than 500 parts per million, the operator shall file with
the commission:
(1) a new or amended nutrient utilization plan with a
phosphorus reduction component that is certified as acceptable by a
person listed by Section 26.503(b)(2)(E)(ii); or
(2) show that the level is supported by a nutrient
utilization plan certified as acceptable by a person listed by
Section 26.503(b)(2)(E)(ii).
(e) The owner or operator of a waste application field
required by this section to have a nutrient utilization plan with a
phosphorus reduction component for which the results of tests
performed on composite soil samples collected 12 months or more
after the plan is filed do not show a reduction in phosphorus is
subject to enforcement for a violation of this subchapter at the
discretion of the executive director. The executive director, in
determining whether to take an enforcement action under this
subsection, shall consider any explanation presented by the owner
or operator regarding the reasons for the lack of phosphorus
reduction, including an act of God, meteorologic conditions,
diseases, vermin, crop conditions, or variability of soil testing
results.
(f) The commission shall adopt rules to implement this
section. The rules must provide for the scheduling and manner of
the required soil testing and the form, content, and deadlines for
plans required under this section.
Sec. 26.505. ENFORCEMENT DISCRETION. The commission does not
have prosecutorial discretion in enforcing this subchapter and
shall strictly enforce the provisions of this subchapter.