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.