SECTION 321.32. Definitions

All definitions in Texas Water Code (TWC), Chapter 26 and Chapter 3 and Chapter 305 of this title (relating to Definitions and Consolidated Permits) shall apply to this subchapter and are incorporated by reference. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Agronomic rates--The land application of animal manure, sludge, or wastewater at rates of application in accordance with a plan for nutrient management which will enhance soil productivity and provide the crop or forage growth with needed nutrients for optimum health and growth based upon a realistic yield goal.

(2) Animal feeding operation (AFO)--A lot or facility (other than an aquatic animal production facility) where animals have been, are, or will be stabled or confined and fed or maintained for a total of 45 days or more in any 12-month period, and the animal confinement areas do not sustain crops, vegetation, forage growth, or post-harvest residues in the normal growing season over any portion of the lot or facility. Two or more AFOs under common ownership are a single AFO if they adjoin each other, or if they use a common area or system for the beneficial use of manure, sludge, or wastewater. A land management unit is not part of an AFO.

(3) Annual(ly)--Once per calendar year with required events not more than 18 months apart, unless approved in writing by the executive director on a case-by-case basis.

(4) Aquifer--A saturated permeable geologic unit that can transmit, store, and yield to a well, the quality and quantities of groundwater sufficient to provide for a beneficial use. An aquifer can be composed of unconsolidated sands and gravels, permeable sedimentary rocks such as sandstones and limestones, and/or heavily fractured volcanic and crystalline rocks. Groundwater within an aquifer can be confined, unconfined, or perched.

(5) Area land use map--A map that identifies property lines, permanent odor sources, and distances and direction to any occupied residence or business structure, school (including associated recreational areas), permanent structure containing a place of worship, or public park within a one-mile radius of the permanent odor sources at the animal feeding operation. The map shall include the north arrow, scale of map, buffer distances, and date that the map was generated and the date that the distances were verified.

(6) Beneficial use--Application of manure, sludge, or wastewater to land in a manner that does not exceed the agronomic need or rate for a harvested or cover crop. Application of manure, sludge, or wastewater on the land at a rate below or equal to the optimal agronomic rate is considered a beneficial use.

(7) Best management practices (BMPs)--The schedule of activities, prohibitions of practices, maintenance procedures, and other management and conservation practices to prevent or reduce the pollution of water in the state. BMPs also include treatment requirements, operating procedures, and practices to control site runoff, spillage or leaks, sludge, land application, or drainage from raw material storage.

(8) Bypass--The intentional diversion of waste streams from any portion of a treatment facility.

(9) Catastrophic conditions--Conditions that cause structural or mechanical damage to the animal feeding operation from natural events including high winds, tornadoes, hurricanes, earthquakes, or other natural disasters, other than rainfall events.

(10) Certified nutrient management specialist--An organization in Texas or an individual who is currently certified as a nutrient management specialist through a United States Department of Agriculture-Natural Resources Conservation Service, Texas Certified Crop Advisor's Board or Texas AgriLife Extension Service recognized certification program.

(11) Chronic or catastrophic rainfall event--A series of rainfall events that do not provide opportunity for dewatering a retention control structure and that are equivalent to or greater than the design rainfall event or any single rainfall event that is equivalent to or greater than the design rainfall event.

(12) Certified water quality management plan--A site-specific plan for agricultural or silvicultural lands that includes appropriate land treatment practices, production practices, management measures, technologies, or combinations thereof that when implemented, will achieve a level of pollution prevention or abatement determined by the Texas State Soil and Water Conservation Board, in consultation with the local Soil and Water Conservation District, to be consistent with state water quality standards.

(13) Comprehensive Nutrient Management Plan (CNMP)--A resource management plan containing a grouping of conservation practices and management activities that, when implemented in a conservation system, will help ensure that both agricultural production goals are achieved, and natural resource concerns dealing with nutrient and organic by-products and their adverse impacts on water quality are minimized.

(14) Concentrated animal feeding operation (CAFO)--Any animal feeding operation (AFO) defined as follows:

(A) Large CAFO--Any AFO that stables or confines and feeds or maintains for a total of 45 days or more in any 12-month period equal to or more than the numbers of animals specified in any of the following categories:

(i) 1,000 cattle other than mature dairy cattle or veal calves. Cattle includes, but is not limited to, heifers, steers, bulls, and cow/calf pairs;

(ii) 1,000 veal calves;

(iii) 700 mature dairy cattle (whether milkers or dry cows);

(iv) 2,500 swine, each weighing 55 pounds or more; 10,000 swine, each weighing less than 55 pounds;

(v) 500 horses;

(vi) 10,000 sheep or lambs;

(vii) 55,000 turkeys;

(viii) 125,000 chickens (other than laying hens, if the operation does not use a liquid manure handling system);

(ix) 30,000 laying hens or broilers (if the operation uses a liquid manure handling system), or 82,000 laying hens (if the operation does not use a liquid manure handling system); or

(x) 5,000 ducks (if the operation uses a liquid manure handling system), or 30,000 ducks (if the operation does not use a liquid manure handling system).

(B) Medium CAFO--Any AFO that discharges pollutants into water in the state either through a man-made ditch, flushing system, or other similar man-made device, or directly into water in the state with the following number of animals:

(i) 300 to 999 cattle other than mature dairy cattle or veal calves. Cattle includes, but is not limited to, heifers, steers, bulls, and cow/calf pairs;

(ii) 200 to 699 mature dairy cattle (whether milking or dry cows);

(iii) 300 to 999 veal calves;

(iv) 750 to 2,499 swine each weighing 55 pounds or more, or 3,000 to 9,999 swine each weighing less than 55 pounds;

(v) 150 to 499 horses;

(vi) 3,000 to 9,999 sheep or lambs;

(vii) 16,500 to 54,999 turkeys;

(viii) 37,500 to 124,999 chickens (other than laying hens if the operation does not use a liquid manure handling system);

(ix) 9,000 to 29,999 laying hens or broilers (if the operation uses a liquid manure handling system), or 25,000 to 81,999 laying hens (if the operation does not use a liquid manure handling system); or

(x) 1,500 to 4,999 ducks (if the operation uses a liquid manure handling system), or 10,000 to 29,999 ducks (if the operation does not use a liquid manure handling system).

(C) Small CAFO--Any AFO that is designated by the executive director as a CAFO because it is a significant contributor of pollutants into or adjacent to water in the state and is not a large or medium CAFO.

(D) State-only CAFO--An AFO that falls within the range of animals in subparagraph (B) of this paragraph and that is located in the dairy outreach program areas or an AFO designated by the executive director as a CAFO because it is a significant contributor of pollutants into or adjacent to water in the state. A state-only CAFO is authorized under state law.

(15) Control facility--Any system used for the collection and retention of manure, sludge, or wastewater at the permitted facility until their ultimate use or disposal. This includes all collection ditches, conduits, and swales for the collection of manure, sludge, or wastewater, and all retention control structures.

(16) Cooling Pond--A shallow man-made structure filled with water for the specific purpose to keep animals cool and promote animal comfort.

(17) Crop removal--The amount of nutrients contained in and removed by harvest of the adopted crop.

(18) Crop requirement--The amount of nutrients that must be present in the soil in order to ensure that the crop nutrient needs are met, while accounting for nutrients that may become unavailable to the crop due to adsorption to soil particles or other natural causes.

(19) Dairy outreach program areas--The area including all of the following counties: Bosque, Comanche, Erath, Hamilton, Hopkins, Johnson, Rains, and Wood.

(20) Design rainfall event--A design parameter corresponding to precipitation frequency values for a given rainfall duration and return period based on United States Department of Commerce, Weather Bureau, Technical Paper 40 or 49, May 1961.

(21) Dry litter poultry operation--A poultry animal feeding operation that does not use a liquid manure handling system.

(22) Edwards Aquifer--As defined in §213.3 of this title (relating to Definitions).

(23) Edwards Aquifer recharge zone--As defined in §213.3 of this title (relating to Definitions).

(24) Groundwater--Subsurface water that occurs below the water table in soils and geologic formations that are saturated other than underflow of a stream or an underground stream.

(25) Historical waste application field--An area of land located in a major sole-source impairment zone that at any time since January 1, 1995, has been owned or controlled by an operator of a concentrated animal feeding operation (CAFO), and on which agricultural manure or wastewater from a CAFO has been applied.

(26) Hydrologic connection--The connection and exchange between surface water and groundwater.

(27) Lagoon--A retention control structure used for the biological treatment of liquid organic manure. Lagoons can be aerobic, anaerobic, or facultative depending on their design and can be used in a series to produce a higher quality effluent. Treatment volume must be included in the lagoon design.

(28) Land application--The act of applying manure, sludge, or wastewater associated with the animal feeding operation including distribution to, or incorporation into, the soil mantle primarily for beneficial use purposes.

(29) Land management unit (LMU)--An area of land owned, operated, controlled, rented, or leased by an animal feeding operation (AFO) owner or operator where manure, sludge, or wastewater from the AFO is or may be applied. This includes land associated with a single center pivot system or a tract of land where similar soil characteristics exist and similar management practices are being used. LMUs include historical waste application fields. The term "land management unit" does not apply to any lands not owned, operated, controlled, rented, or leased by the AFO operator for the purpose of off-site land application of manure, where the manure is given or sold to others for land application.

(30) Letter of consent--A document signed by the owner or the authorized legal representative of the owner(s) of an occupied residence or business structure, school (including associated recreational areas), permanent structure containing a place of worship, or public park, or a document signed by the governmental entity or the authorized legal representative of the entity responsible for the operation of a school or public park. The document specifically consents to location and operation of permanent odor sources of an animal feeding operation within the minimum buffer distance required under §321.43 of this title (relating to Air Standard Permit for Animal Feeding Operations (AFO)).

(31) Liner--Any barrier in the form of a layer; membrane; or blanket; naturally existing, constructed, or installed, to prevent a significant hydrologic connection between wastewater contained in retention control structures and water in the state.

(32) Liquid manure handling system--A system in which freshwater or wastewater is used for transporting and land applying manure.

(33) Major sole-source impairment zone--A watershed that contains a reservoir:

(A) 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

(B) at least half of the water flowing into is from a source that, on September 1, 2001, is on the list of impaired state waters adopted by the commission as required by 33 United States Code, §1313(d), as amended:

(i) at least in part because of concerns regarding pathogens and phosphorus; and

(ii) where the commission has developed and adopted a total maximum daily load.

(34) Manure--Feces and/or urine excreted by livestock and poultry. Manure includes litter, bedding, compost, feed, and other raw materials commingled with feces and/or urine.

(35) New source--As defined in §305.2 of this title (relating to Definitions). The criteria for new source determination are located in §305.534(b) of this title (relating to New Sources and New Dischargers).

(36) Nuisance--Any discharge of air contaminant(s), including but not limited to odors of sufficient concentration and duration that are or may tend to be injurious to or that adversely affects human health or welfare, animal life, vegetation, or property, or that interferes with the normal use and enjoyment of animal life, vegetation, or property.

(37) Nutrient management plan (NMP)--A plan based on the Natural Resources Conservation Service Practice Standard Code 590, for Texas, to address the amount, rate, source, placement, method of application, and timing of the application of plant nutrients, and soil amendments.

(38) Nutrient utilization plan (NUP)--A nutrient management plan to evaluate and address site-specific characteristics of a land management unit to ensure that the beneficial use of manure, sludge, or wastewater is conducted in a manner to prevent adverse impacts on water quality.

(39) One-hundred-year flood plain--Any land area that is subject to a 1.0% or greater chance of flooding in any given year from any source.

(40) Open lot--Pens or similar confinement areas with dirt, concrete, or other paved or hard surfaces wherein livestock or poultry are substantially or entirely exposed to the outside environment except for small portions of the total confinement area affording protection by windbreaks or small shed-type shade areas and that do not sustain crops, vegetation, forage growth, or postharvest residues in the normal growing season. For the purposes of this subchapter, the term "open lot" is synonymous with the terms "dirt lot" or "dry lot," for livestock or poultry, as these terms are commonly used in the agricultural industry.

(41) Operational--The facility is constructed such that animals may be stabled, confined, fed, and maintained in accordance with the permit or authorization. The facility does not have to be operating at the maximum number of animals allowed in the permit or authorization.

(42) Operator--The owner or person responsible for the overall operation of a facility or part of a facility, subject to the provisions of this subchapter.

(43) Permanent odor sources--Those odor sources that may emit odors 24 hours per day. For the purposes of this subchapter, permanent odor sources include, but are not limited to, pens, confinement buildings, lagoons, retention control structures, manure stockpile areas, and solid separators. For the purposes of this subchapter, permanent odor sources shall not include any feed handling facilities, land application equipment, or land management units.

(44) Permittee--Any person issued an individual permit or order or authorized under a general permit.

(45) Pesticide--A substance or mixture of substances intended to prevent, destroy, repel, or mitigate any pest, or any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant. Pesticide includes insecticides, nematicides, rodenticides, fungicides, and herbicides.

(46) Playa--A flat-floored, clayey bottom of an undrained basin that is located in an arid or semi-arid part of the state, is naturally dry most of the year, and collects runoff from rain, but is subject to rapid evaporation.

(47) Process-generated wastewater--Any water directly or indirectly used in the operation of an animal feeding operation (such as spillage or overflow from animal or poultry watering systems that comes in contact with manure washing, cleaning, or flushing pens, barns, manure pits; direct contact swimming, washing, or spray cooling of animals; and dust control) including water used in or resulting from the production of animals or poultry or direct products (e.g., milk, meat, or eggs).

(48) Production area--That part of an animal feeding operation that includes, but is not limited to, the animal confinement area, the manure storage area, the raw materials storage area, and the control facilities.

(49) Protection zone--The area within the watershed of a sole-source surface drinking water supply that is:

(A) within two miles of the normal pool elevation, as shown on a United States Geological Survey (USGS) 7 1/2-minute quadrangle topographic map, of a sole-source drinking water supply reservoir;

(B) within two miles of that part of a perennial stream that is:

(i) a tributary of a sole-source drinking water supply; and

(ii) within three linear miles upstream of the normal pool elevation, as shown on a USGS 7 1/2-minute quadrangle topographic map, of a sole-source drinking water supply reservoir; or

(C) within two miles of a sole-source surface drinking water supply river, extending three linear miles upstream from the sole-source water supply intake point.

(50) Recharge feature--Those natural or artificial features either on or beneath the ground surface at the site under evaluation that provide or create a significant hydrologic connection between the ground surface and the underlying groundwater within an aquifer. Significant artificial features include, but are not limited to, wells and excavation or material pits. Significant natural hydrologic connections include, but are not limited to: faults, fractures, sinkholes, or other macro pores that allow direct surface infiltration; a permeable or shallow soil material that overlies an aquifer; exposed geologic formations that are identified as an aquifer; or a water course bisecting an aquifer.

(51) Retention control structure (RCS)--Any basin, pond, pit, tank, conveyance, or lagoon used to hold, store, or treat manure, wastewater, and sludge. The term RCS does not include conveyance systems such as irrigation piping or ditches that are designed and maintained to convey but not store any manure, or wastewater, nor does it include cooling ponds located in the production area.

(52) Significant expansion of concentrated animal feeding operation (CAFO)--Any change to a CAFO that increases the manure production at the CAFO by more than 50%, above the maximum operating capacity stated in the initial authorization for the facility under TXG920000.

(53) Sludge--Solid, semi-solid, or slurry manure generated during the treatment of or storage of any manure or wastewater. The term includes material resulting from treatment, coagulation, or sedimentation of manure in a retention control structure. Chapter 312 of this title (relating to Sludge Use, Disposal, and Transportation) rules covering sludge do not apply to this subchapter.

(54) Soil Plant Air and Water (SPAW) Field Pond Hydrology--SPAW is a Natural Resources Conservation Service (NRCS) water budgeting tool for farm fields, ponds, and inundated wetlands. The SPAW model may be used to perform daily hydrologic water budgeting using the NRCS Runoff Curve Number method.

(55) Sole-source surface drinking water supply--A body of surface water that is identified as a public water supply in §307.10 of this title (relating to Appendices A - E) and is the sole source of supply of a public water supply system, exclusive of emergency water connections.

(56) Substantial change--The following changes to the terms of the Nutrient Management Plan are considered substantial; other changes are considered non-substantial:

(A) changing animal type or authorized head count;

(B) adding Land Management Units or increasing application acreage; and

(C) using a crop or yield goal to determine maximum application rates for manure, sludge or wastewater that is not authorized by the permit or authorization.

(57) Technical service provider--An individual, entity, or public agency certified and placed on an approved list by the Natural Resources Conservation Service (NRCS) to provide technical services to program participants or the NRCS.

(58) Twenty-five-year, ten-day rainfall event--The maximum rainfall event with a probable recurrence interval of once in 25 years, with a duration of ten days, as defined by the National Weather Service in Technical Paper Number 49 United States Weather Bureau and United States Department of Agriculture, Two-to-Ten Day Precipitation for Return Periods of 2 to 100 Years in the Contiguous United States (1964); or equivalent regional or state rainfall information.

(59) Twenty-five-year, 24-hour rainfall event--The maximum rainfall event with a probable recurrence interval of once in 25 years, with a duration of 24 hours, as defined by the National Weather Service in Technical Paper Number 40, "Rainfall Frequency Atlas of the United States," May 1961; or equivalent regional or state rainfall information.

(60) United States Department of Agriculture (USDA)--Natural Resources Conservation Service (NRCS)--An agency of the United States Department of Agriculture that provides assistance to agricultural producers for planning and installation of conservation practices through conservation and technical programs.

(61) Upset--An exceptional incident where there is unintentional and temporary noncompliance with technology based permit effluent limitations because of factors beyond the reasonable control of the permittee. An upset does not include noncompliance to the extent caused by operational error, improperly designed treatment facilities, inadequate treatment facilities, lack of preventive maintenance, or careless or improper operation.

(62) Wastewater--Any water, including process-generated wastewater and precipitation, which comes into contact with any manure, sludge, bedding, or any raw material or intermediate or final material or product used in or resulting from the production of livestock or poultry or direct products (e.g., milk, meat, or eggs).

(63) Water in the state--Groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, wetlands, marshes, inlets, canals, the Gulf of Mexico, inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.

(64) Well--Any artificial excavation into or below the surface of the earth whether in use, unused, abandoned, capped, or plugged that may be further described as one or more of the following:

(A) an excavation designed to explore for, produce, capture, recharge, or recover water, any mineral, compound, gas, or oil from beneath the land surface;

(B) an excavation designed for the purpose of monitoring any of the physical or chemical properties of water, minerals, geology, or geothermal properties that exist or may exist below the land surface;

(C) an excavation designed to inject or place any liquid, solid, gas, vapor, or any combination of liquid, solid, gas, or vapor into any soil or geologic formation below the land surface; or

(D) an excavation designed to lower a water or liquid surface below the land surface either temporarily or permanently for any reason.

Source Note: The provisions of this §321.32 adopted to be effective April 1, 1987, 12 TexReg 904; amended to be effective September 18, 1998, 23 TexReg 9354; amended to be effective July 27, 1999, 24 TexReg 5721; amended to be effective March 6, 2002, 27 TexReg 1511; amended to be effective September 1, 2003, 28 TexReg 6302; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786