77R12308 E By Averitt, Dunnam H.B. No. 2699 Substitute the following for H.B. No. 2699: By Cook C.S.H.B. No. 2699 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the protection of water quality in certain watersheds 1-3 from pollution from animal feeding operations. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 ARTICLE I. PROTECTION OF CERTAIN WATERSHEDS 1-6 SECTION 1.01. Chapter 26, Water Code, is amended by adding 1-7 Subchapter L to read as follows: 1-8 SUBCHAPTER L. PROTECTION OF CERTAIN WATERSHEDS 1-9 Sec. 26.501. DEFINITIONS. In this subchapter: 1-10 (1) "Concentrated animal feeding operation" has the 1-11 meaning assigned by 30 Tex. Admin. Code Section 321.132 on the 1-12 effective date of this subchapter. 1-13 (2) "New concentrated animal feeding operation" means 1-14 a proposed concentrated animal feeding operation, any part of which 1-15 is located on property not previously authorized by the state to be 1-16 operated as a concentrated animal feeding operation. 1-17 (3) "Waste application field" means an area of land 1-18 owned or controlled by an operator of a concentrated animal feeding 1-19 operation on which agricultural waste from a concentrated animal 1-20 feeding operation has been applied. 1-21 Sec. 26.502. APPLICABILITY. This subchapter applies only in 1-22 a watershed that contains a reservoir: 1-23 (1) that is used by a municipality as a sole source of 1-24 drinking water supply for a population, inside and outside of its 2-1 municipal boundaries, of more than 140,000; and 2-2 (2) at least half of the water flowing into which is 2-3 from a source that, on the effective date of this subchapter, is on 2-4 the list of impaired state waters adopted by the commission as 2-5 required by 33 U.S.C. Section 1313(d), as amended: 2-6 (A) at least in part because of concerns 2-7 regarding pathogens and phosphorus; and 2-8 (B) for which the commission has prepared and 2-9 submitted a total maximum daily load standard. 2-10 Sec. 26.503. REGULATION OF CERTAIN CONCENTRATED ANIMAL 2-11 FEEDING OPERATION WASTES. (a) The commission may authorize the 2-12 construction or operation of a new concentrated animal feeding 2-13 operation, or an increase in the animals confined under an existing 2-14 operation, with a waste application field only by: 2-15 (1) a new or amended individual permit; or 2-16 (2) a general permit specific to the watershed where 2-17 the operation or application field owned or controlled by the owner 2-18 or operator of the operation is or is proposed to be located. 2-19 (b) The individual or general permit issued or amended under 2-20 Subsection (a) must: 2-21 (1) provide for management and disposal of waste in 2-22 accordance with Subchapter B, Chapter 321, Title 30, Texas 2-23 Administrative Code; and 2-24 (2) require that 100 percent of the collectible manure 2-25 produced by the additional animals in confinement at an expanded 2-26 operation or all of the animals in confinement at a new operation 2-27 must be: 3-1 (A) disposed of or used outside of the 3-2 watershed; 3-3 (B) delivered to a composting facility approved 3-4 by the executive director; 3-5 (C) applied to a waste application field that is 3-6 not owned or operated by an owner or operator of a concentrated 3-7 animal feeding operation; 3-8 (D) put to another beneficial use approved by 3-9 the executive director; or 3-10 (E) be applied to a waste application field that 3-11 is owned or operated by the owner or operator of the concentrated 3-12 animal feeding operation only if: 3-13 (i) results of representative composite 3-14 soil sampling conducted at the waste application field and filed 3-15 with the commission show that the waste application field contains 3-16 200 or fewer parts per million of extractable phosphorus (reported 3-17 as P); or 3-18 (ii) the manure is applied, with 3-19 commission approval, in accordance with a detailed nutrient 3-20 utilization plan developed by: 3-21 (a) an employee of the United States 3-22 Department of Agriculture's Natural Resources Conservation Service; 3-23 (b) a nutrient management specialist 3-24 certified by the United States Department of Agriculture's Natural 3-25 Resources Conservation Service; 3-26 (c) the State Soil and Water 3-27 Conservation Board; 4-1 (d) the Texas Agricultural Extension 4-2 Service; 4-3 (e) an agronomist or soil scientist 4-4 on the full-time staff of an accredited university located in this 4-5 state; or 4-6 (f) a professional agronomist or 4-7 soil scientist certified by the American Society of Agronomy. 4-8 (c) This section does not limit the commission's authority 4-9 to include in an individual or general permit under this chapter 4-10 provisions necessary to protect a water resource in this state. 4-11 Sec. 26.504. WASTE APPLICATION FIELD SOIL SAMPLING AND 4-12 TESTING. (a) The operator of a concentrated animal feeding 4-13 operation shall contract with a person described by Section 4-14 26.503(b)(2)(E) to collect one or more representative composite 4-15 soil samples from each waste application field. The operator shall 4-16 have sampling performed under this subsection not less often than 4-17 once every 12 months. 4-18 (b) Each sample collected under this section must be tested 4-19 for phosphorus and any other nutrient designated by the executive 4-20 director. The test results must be made available to the executive 4-21 director and the operator of the concentrated animal feeding 4-22 operation. The test results are public records of the commission. 4-23 (c) If the samples tested under Subsection (b) show a 4-24 phosphorus level in the soil of more than 500 parts per million, 4-25 the operator shall file with the commission a new or amended 4-26 nutrient utilization plan with a phosphorus reduction component 4-27 that is certified as acceptable by a person listed by Section 5-1 26.503(b)(2)(E). 5-2 (d) If the samples tested under Subsection (b) show a 5-3 phosphorus level in the soil of more than 200 parts per million but 5-4 less than 500 parts per million, the operator shall file with the 5-5 commission: 5-6 (1) a new or amended nutrient utilization plan with a 5-7 phosphorus reduction component that is certified as acceptable by a 5-8 person listed by Section 26.503(b)(2)(E); or 5-9 (2) show that the level is supported by a nutrient 5-10 utilization plan certified as acceptable by a person listed by 5-11 Section 26.503(b)(2)(E). 5-12 (e) The owner or operator of a waste application field 5-13 required by this section to have a nutrient utilization plan with a 5-14 phosphorus reduction component for which the results of tests 5-15 performed on composite soil samples collected 12 months or more 5-16 after the plan is filed do not show a reduction in phosphorus is 5-17 subject to enforcement for a violation of this subchapter at the 5-18 discretion of the executive director. The executive director, in 5-19 determining whether to take an enforcement action under this 5-20 subsection, shall consider any explanation presented by the owner 5-21 or operator regarding the reasons for the lack of phosphorus 5-22 reduction, including an act of God, meteorologic conditions, 5-23 diseases, vermin, crop conditions, or variability of soil testing 5-24 results. 5-25 (f) The commission shall adopt rules to implement this 5-26 section. The rules must provide for the scheduling and manner of 5-27 the required soil testing and the form, content, and deadlines for 6-1 plans required under this section. 6-2 Sec. 26.505. PHOSPHORUS CLEANING PRODUCTS. A state or local 6-3 governmental entity located in the watershed may not use a 6-4 detergent or other cleaning product that contains phosphorus after 6-5 the expiration of six months after the effective date of this 6-6 subchapter. 6-7 ARTICLE II. NORTH BOSQUE RIVER WATERSHED COUNCIL 6-8 SECTION 2.01. DEFINITIONS. In this Act: 6-9 (1) "Council" means the North Bosque River Watershed 6-10 Council. 6-11 (2) "Watershed" means the watershed to which 6-12 Subchapter L, Chapter 26, Water Code, as added by Article I of this 6-13 Act, applies. 6-14 SECTION 2.02. PURPOSE; COMPLIANCE WITH LEGAL REQUIREMENTS. 6-15 (a) The council is an advisory committee to the commission and may 6-16 make recommendations to the commission regarding a comprehensive 6-17 watershed protection plan to reduce pollutants reaching waterways 6-18 in the watershed. 6-19 (b) This article and the activities of the council do not 6-20 affect the obligation of any person to comply with any state or 6-21 federal law, rule, or regulation. 6-22 SECTION 2.03. CREATION AND COMPOSITION OF COUNCIL. (a) The 6-23 North Bosque River Watershed Council is created. 6-24 (b) The council is composed of the nonvoting members listed 6-25 by Subsection (c) of this section and the following voting members: 6-26 (1) a dairy producer appointed by the Dairy Farmers of 6-27 America; 7-1 (2) a dairy producer appointed by the Texas 7-2 Association of Dairymen; 7-3 (3) a representative of the environmental community 7-4 appointed by the chairman of the Texas Natural Resource 7-5 Conservation Commission; 7-6 (4) the general manager of the Texas Rural Water 7-7 Association; 7-8 (5) the president of the Brazos River Authority or a 7-9 member of the board of directors of the authority appointed by the 7-10 president; 7-11 (6) the commissioner of agriculture or a person 7-12 appointed by the commissioner of agriculture; 7-13 (7) a representative of the general agriculture 7-14 industry appointed by the chancellor of The Texas A&M University 7-15 System; 7-16 (8) a representative of the City of Waco appointed by 7-17 the mayor of the City of Waco; and 7-18 (9) a representative of a municipality in the 7-19 watershed other than the City of Waco appointed by the Texas 7-20 Municipal League. 7-21 (c) The nonvoting members of the council are: 7-22 (1) the mayor of the City of Temple or a member of the 7-23 city council of that municipality designated by the mayor; 7-24 (2) the mayor of the City of Comanche or a member of 7-25 the city council of that municipality designated by the mayor; 7-26 (3) a representative of Fort Hood appointed by the 7-27 commander of the fort; 8-1 (4) a representative of the Texas and Southwestern 8-2 Cattle Raisers Association, appointed by the president of the 8-3 association; and 8-4 (5) a representative of the Texas Farm Bureau selected 8-5 by the governing body of the Texas Farm Bureau. 8-6 SECTION 2.04. ORGANIZATION AND ADMINISTRATION OF COUNCIL. 8-7 (a) The council shall meet at least once each calendar quarter and 8-8 as necessary to fulfill its charges under Section 2.06 of this Act. 8-9 (b) The commissioner of agriculture or the member of the 8-10 council appointed by the commissioner shall call the initial 8-11 meeting of the council and act as the presiding officer of the 8-12 council for the initial meeting. 8-13 (c) The council shall select a presiding officer and may 8-14 select other officers as it considers advisable. 8-15 (d) An action of the council requires a vote of two-thirds 8-16 of the voting members listed in Section 2.03 of this Act. 8-17 (e) The council may appoint subcommittees to make 8-18 recommendations to the full council. The council may provide a 8-19 subcommittee with nonvoting advisory members. 8-20 (f) A council member may not delegate a duty under this 8-21 article to another person but may use another person for technical 8-22 assistance. 8-23 (g) The council may hire or contract with a facilitator or 8-24 mediator to assist the council in its functions. The role and 8-25 responsibility of the facilitator or mediator are established by 8-26 the council. 8-27 SECTION 2.05. PUBLIC COMMENT. At each meeting of the 9-1 council, the council shall provide for not less than 30 minutes for 9-2 an opportunity for public comments on matters related to the 9-3 council's charges under Section 2.06 of this Act. 9-4 SECTION 2.06. CHARGES. (a) The council shall: 9-5 (1) review and comment on rules or regulations that 9-6 may affect the watershed proposed by: 9-7 (A) the Texas Natural Resource Conservation 9-8 Commission; or 9-9 (B) the United States Environmental Protection 9-10 Agency; 9-11 (2) review and comment on an education and 9-12 certification program for the implementation of best management 9-13 practices to ensure minimal contaminated runoff to waters of the 9-14 state in the watershed; 9-15 (3) review and evaluate a means to address any 9-16 contaminated runoff from waste application fields that are: 9-17 (A) owned by a municipality or other person who 9-18 is not subject to Subchapter B, Chapter 321, Title 30, Texas 9-19 Administrative Code; and 9-20 (B) located in the watershed; 9-21 (4) review and evaluate alternative treatment options 9-22 for dairy operation wastes in the watershed including: 9-23 (A) composting; and 9-24 (B) methods to reduce phosphorus content of 9-25 liquid wastes or lagoon wastes; 9-26 (5) recommend a site inspection program to verify that 9-27 facilities constructed in the watershed to comply with a permit 10-1 under Chapter 26, Water Code, conform to the approved design and 10-2 specifications; 10-3 (6) review and recommend means to achieve phosphorus 10-4 content reductions at wastewater treatment plants in the watershed 10-5 to a concentration of between one and two milligrams per liter; 10-6 (7) provide recommendations for phosphorus reduction 10-7 programs for municipalities in the watershed with the objective of 10-8 reducing or eliminating the: 10-9 (A) use of phosphate-based detergents and other 10-10 phosphate-based cleaning supplies; and 10-11 (B) excessive application of fertilizers on 10-12 lawns, golf courses, and other areas; 10-13 (8) coordinate with the Texas Natural Resource 10-14 Conservation Commission, the State Soil and Water Conservation 10-15 Board, the United States Department of Agriculture's Natural 10-16 Resources Conservation Service, and the Texas Agricultural 10-17 Extension Service in efforts to extend increased technical 10-18 assistance and training to agricultural and municipal waste 10-19 management personnel in the watershed; 10-20 (9) review and recommend water quality monitoring 10-21 efforts to assess the pollutant loading and effects of activities 10-22 in the watershed, including: 10-23 (A) studies at the edge of fields to assess the 10-24 direct runoff from waste application field stormwater and the 10-25 nutrient contributions from the watershed; 10-26 (B) in-stream monitoring at locations adjacent 10-27 to waste application fields that may receive runoff from the 11-1 fields; and 11-2 (C) assessment of other significant point 11-3 sources or nonpoint sources of pollution to the waters of the 11-4 watershed, including urban runoff and septic contributions; 11-5 (10) review and evaluate the process of the State Soil 11-6 and Water Conservation Board for developing water quality 11-7 management plans; 11-8 (11) consider and recommend other water quality 11-9 initiatives or studies to examine the effects on the watershed of 11-10 potential pollutants; 11-11 (12) review the effectiveness of composting efforts 11-12 and recommend means to increase the efficiency of composting 11-13 efforts or to increase the amount of waste composted; 11-14 (13) review and recommend methods for sampling and 11-15 testing soil phosphorus concentrations, including sampling and 11-16 testing required by Subchapter L, Chapter 26, Water Code, as added 11-17 by Article I of this Act; 11-18 (14) review available funding of and recommend avenues 11-19 for additional funding of alternative means to reduce or mitigate 11-20 point source and nonpoint source pollution; and 11-21 (15) review the economic effects of all current and 11-22 proposed rules of the Texas Natural Resource Conservation 11-23 Commission that affect the watershed. 11-24 (b) In undertaking its charges under this section, the 11-25 council shall seek the technical assistance of knowledgeable 11-26 persons, including a representative of: 11-27 (1) the Texas Natural Resource Conservation 12-1 Commission; 12-2 (2) the Texas Department of Agriculture; 12-3 (3) the Texas Water Development Board; 12-4 (4) the State Soil and Water Conservation Board; 12-5 (5) the United States Environmental Protection Agency; 12-6 (6) the Brazos River Authority; 12-7 (7) the Texas Institute for Applied Environmental 12-8 Research at Tarleton State University; 12-9 (8) the Texas Agricultural Extension Service; 12-10 (9) the United States Department of Agriculture, 12-11 including its Natural Resources Conservation Service; 12-12 (10) an appropriate unit of: 12-13 (A) Baylor University; 12-14 (B) Texas Tech University; 12-15 (C) The Texas A&M University System; or 12-16 (D) The University of Texas System; or 12-17 (11) the United States Army Corps of Engineers. 12-18 SECTION 2.07. FUNDING OF COUNCIL ACTIVITIES. (a) A state 12-19 agency included in the list of entities in Section 2.06(b) of this 12-20 Act may use money appropriated to it for a function related to 12-21 water quality for an activity of the council. 12-22 (b) The council may solicit and accept gifts or grants from 12-23 any person for the use of the council in fulfilling its charges 12-24 under Section 2.06 of this Act or administrative expenses of the 12-25 council. 12-26 (c) A voting or nonvoting member of the council is not 12-27 entitled to compensation for service on the council or to 13-1 reimbursement for travel expenses. A voting or nonvoting member of 13-2 the council who represents a city, university, or state agency may 13-3 receive reimbursement for travel expenses to which the member is 13-4 otherwise entitled. 13-5 SECTION 2.08. REPORT. The council shall prepare a report of 13-6 its activities, conclusions, and recommendations prepared with the 13-7 assistance of the Texas Natural Resource Conservation Commission. 13-8 Not later than December 1, 2002, the council shall provide the 13-9 report to the governor, the lieutenant governor, the speaker of the 13-10 house of representatives, and the presiding officer of each 13-11 committee of the senate and the house of representatives that has 13-12 jurisdiction over environmental or agricultural matters. 13-13 SECTION 2.09. EXPIRATION OF ARTICLE; ABOLITION OF COUNCIL. 13-14 The council is abolished and this article expires on the final day 13-15 of the 78th regular legislative session. 13-16 ARTICLE III. TRANSITION; EFFECTIVE DATE 13-17 SECTION 3.01. INITIAL TESTING OF SOIL UNDER SUBCHAPTER L, 13-18 CHAPTER 26, WATER CODE. (a) Not later than the 180th day after the 13-19 effective date of this Act, the owner or operator of a waste 13-20 application field shall have the initial samples collected and 13-21 tested for phosphorus content under Section 26.504(a), Water Code, 13-22 as added by Article I of this Act. For purposes of this section, 13-23 the owner or operator may use the results of tests of samples of 13-24 soil taken not less than 12 months before the effective date of 13-25 this Act if the samples and tests meet the requirements of Section 13-26 26.504, Water Code, as added by Article I of this Act. 13-27 (b) For a waste application field that shows a phosphorus 14-1 level in the soil of more than 500 parts per million, the plan 14-2 required by Section 26.504, Water Code, as added by Article I of 14-3 this Act, must be filed or under contract for development not later 14-4 than the 90th day after the date the operator receives the soil 14-5 testing results. 14-6 (c) For a waste application field that shows a phosphorus 14-7 level in the soil of more than 200, but not more than 500, parts 14-8 per million, the plan or the documentation showing the level is 14-9 supported by a plan, as required by Section 26.504, Water Code, as 14-10 added by Article I of this Act, must be filed or under contract for 14-11 development not later than the 180th day after the date the 14-12 operator receives the soil testing results. 14-13 SECTION 3.02. EFFECTIVE DATE. This Act takes effect 14-14 immediately if it receives a vote of two-thirds of all the members 14-15 elected to each house, as provided by Section 39, Article III, 14-16 Texas Constitution. If this Act does not receive the vote 14-17 necessary for immediate effect, this Act takes effect September 1, 14-18 2001.