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.