HBA-AMW C.S.H.B. 2699 77(R)BILL ANALYSIS


Office of House Bill AnalysisC.S.H.B. 2699
By: Averitt
Natural Resources
4/12/2001
Committee Report (Substituted)



BACKGROUND AND PURPOSE 

The North Bosque Watershed has become one of the most polluted and studied
watersheds in the nation. Many of the pollutants in this watershed are from
dairies and their waste application fields.  Manure collected from dairy
operations is applied to waste fields as fertilizer but, over the years,
the amount of manure generated has led to the saturation of many fields.
When significant rainfall occurs, the accumulated nutrients are washed into
the North Bosque River.  Recently, a voluntary composting initiative was
implemented and approximately 75 percent of the North Bosque Watershed's
collectible manure is being composted.  However, concerns have been raised
regarding how waste will be managed as dairy herd sizes continue to expand.
C.S.H.B. 2699 requires new dairies and dairies that expand their herd sizes
to dispose of their collectible manure and to responsibly manage their
waste, requires the performance of necessary soil tests, and creates the
North Bosque River Watershed Council. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Natural Resource Conservation
Commission in ARTICLE 1 (Section 26.504, Water Code) of this bill. 

ANALYSIS

C.S.H.B. 2699 amends the Water Code to establish provisions relating to the
management and disposal of waste from certain animal feeding operations and
to create the North Bosque River Watershed Council.  

The bill specifies the watersheds containing reservoirs to which the
provisions regarding the protection of certain watersheds apply (Sec.
26.502).  The bill authorizes the Texas Natural Resource Conservation
Commission (TNRCC) to authorize the construction or operation of a new
concentrated animal feeding operation (CAFO), or an increase in the animals
confined under an existing CAFO, with a waste application field only by a
new or amended individual permit or a general permit specific to the
watershed. The bill provides that such a permit must provide for the
management and disposal of waste in accordance with TNRCC rules regarding
CAFOs and must 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 disposed of or used
outside of the watershed, delivered to a composting facility approved by
the executive director of TNRCC (executive director), applied to a waste
application field that is not owned or operated by an owner or operator of
a CAFO, put to another beneficial use approved by the executive director,
or be applied to a waste application field that is owned or operated by the
owner or operator of the CAFO only under certain conditions.  The bill
specifies that the aforementioned provisions do not limit TNRCC's authority
to include provisions in an individual or general permit as necessary to
protect water resources in this state (Sec. 26.503). 

C.S.H.B. 2699 requires the operator of a CAFO to contract with one of a
specified list of persons to collect one or more representative soil
samples from each waste application field not less often than once every 12
months beginning not later than the 180th day after the effective date of
this Act (Sec. 26.504 and SECTION 3.01).  The bill requires each sample to
be tested for phosphorus and any other nutrient  designated by the
executive director (Sec. 26.504).  The bill provides that test results must
be made available to the executive director and the operator of the CAFO
and that the test results are public records of TNRCC.  The bill adds
provisions regarding soil samples with certain phosphorus levels and
nutrient utilization plans with phosphorus reduction components. The bill
requires TNRCC by rule to implement the provisions regarding soil testing
in waste application fields and specifies that the rules must provide for
the scheduling and manner of the required testing and the form, content,
and deadlines for nutrient utilization plans (Sec. 26.504 and SECTION
3.01). 

The bill prohibits a state or local governmental entity located in the
watershed from using a detergent or other cleaning product that contains
phosphorus after the expiration of six months after the effective date of
the bill (Sec. 26.505). 

C.S.H.B. 2699 creates the North Bosque River Watershed Council (council) as
an advisory committee to TNRCC and authorizes the council to make
recommendations to TNRCC regarding a comprehensive watershed protection
plan to reduce pollutants reaching waterways in the watershed.  The bill
sets forth provisions regarding the organization and administration of the
council, council composition requirements, reimbursement for council
members, and procedures for public comment at council meetings (SECTIONS
2.02 - 2.05, 2.07).   

The bill sets forth charges for the council and requires the council to
prepare a report of its activities, conclusions, and recommendations
prepared with the assistance of TNRCC.  The bill requires the council to
provide the report to the governor, lieutenant governor, the speaker of the
house of representatives, and the presiding officer of each committee of
the senate and the house of representatives that has jurisdiction over
environmental and agricultural matters not later than December 1, 2002
(SECTIONS 2.06 and 2.08). 

The bill authorizes a state agency that is represented on the council to
use money appropriated to it for a function related to water quality for an
activity of the council.  The bill authorizes the council to solicit and
accept gifts or grants from any person for the use of the council in
fulfilling its charges or administrative expenses.  The bill provides that
the council is abolished and the provisions regarding the council expire on
the final day of the 78th regular legislative session (SECTIONS 2.07 and
2.09). 

EFFECTIVE DATE

On passage, or if the Act does not receive the necessary vote, the Act
takes effect September 1, 2001. 

COMPARISON OF ORIGINAL TO SUBSTITUTE

C.S.S.B. 2699 differs from the original bill by adding definitions for
"concentrated animal feeding operation" and "waste application field" and
modifying the definition of "new concentrated animal feeding operation."
The  substitute removes the definitions for "animal feeding operation,"
"feeding operation impaired watershed," and "twenty-five-year daily
rainfall event" from the original bill (Secs. 26.501).  The substitute adds
a provision specifying the watersheds to which the Act is applicable (Sec.
26.502).  

The substitute modifies the original bill by adding that a general permit
for a concentrated animal feeding operation (CAFO) be specific to the
watershed where the operation or application field owned or controlled by
the owner or operator of the CAFO is or is proposed to be located (Sec.
26.503).  The substitute removes the provision relating to the location of
a new CAFO in an impaired watershed.  The substitute removes the provisions
in the original bill which authorized the Texas Natural Resource
Conservation Commission (TNRCC) to authorize by rule or general permit the
construction or operation of a new CAFO or an increase in the number of
animals confined under an existing individual authorization or registration
and prohibited a rule or general permit from applying to a CAFO located or
proposed to be located in an impaired watershed. 

The substitute differs from the original bill by providing that an
individual or general permit must  provide for disposal of waste, rather
than liquid waste, and requiring that 100 percent of the collectible manure
produced by the additional animals in confinement at an expanded CAFO or
all of the animals in confinement at a new CAFO, rather than 75 percent of
all the manure produced by all the animals in confinement at the CAFO, must
be managed or disposed.  The substitute adds requirements for an individual
or general permit (Sec. 26.503).  The substitute removes the provisions in
the original bill which authorized TNRCC to provide rules concerning the
proportion of collectible manure and specified that the manure must be
removed from the CAFO.  The substitute also removes the provision in the
original bill which specified that provisions regarding the regulation of
CAFOs in impaired watersheds do not limit TNRCC's authority to prescribe
water control practices for animal feeding operations by rule or general
permit. 

C.S.H.B. 2699 differs from the original bill by requiring the operator of a
CAFO to contract with a  sample collector to collect soil samples, rather
than requiring TNRCC to collect the samples.  The substitute differs from
the original bill by requiring the operator of a CAFO to have the samples
collected not less often than once every 12 months.  The substitute differs
from the original bill by providing that the samples must be tested for
phosphorus and any other nutrient designated by the executive director of
TNRCC, rather than requiring TNRCC to test each sample for phosphorus and
any other constituent as required by TNRCC rule.  The substitute modifies
the original by adding that the test results are public records of TNRCC.
The substitute adds provisions regarding soil samples with certain
phosphorus levels and nutrient utilization plans with phosphorus reduction
components.  The substitute modifies the original bill by adding rules
concerning the form, content, and deadlines for nutrient utilization plans
to the rules TNRCC is required to adopt to implement the provisions
regarding soil sampling and testing (Sec. 26.504 and SECTION 3.01).  The
substitute removes provisions in the original bill which authorized TNRCC
to enter public or private property for collecting samples and authorized
TNRCC to enforce this right. 

The substitute adds provisions regarding phosphorus cleaning products and
the initial testing of soil samples (Sec. 26.505 and SECTION 3.01).  The
substitute also adds provisions regarding the North Bosque River Watershed
Council (SECTIONS 2.01 - 2.09).  

The substitute modifies the original bill by changing the effective date
from September 1, 2001, to on passage, or if the Act does not receive the
necessary vote, the Act takes effect September 1, 2001.