SECTION 321.47. Requirements for Animal Feeding Operations (AFOs) Not Defined or Designated As Concentrated Animal Feeding Operations (CAFOs)

(a) Purpose. This section provides an animal feeding operation (AFO) that is not defined or designated as a concentrated animal feeding operation (CAFO) authorization to operate, and identifies the operational requirements necessary to achieve the purposes of this subchapter.

(b) Applicability.

(1) Except as identified in paragraph (2) of this subsection, the owner or operator of an AFO not defined or designated as a CAFO who uses a control facility to manage manure, sludge, or wastewater generated on site shall comply with all the requirements of this section.

(2) The owner or operator of an AFO not defined or designated as a CAFO who qualifies for, obtains, and is operating under a certified water quality management plan from the Texas State Soil and Water Conservation Board (TSSWCB) and subsection (c)(1) - (4) of this section are considered to meet all technical requirements of this section.

(3) The owner of an AFO not defined or designated as a CAFO who uses an alternative treatment practice, such as filter strips (Natural Resources Conservation Service (NRCS) Code 393), constructed wetlands (NRCS Code 656), or vegetated treatment areas (NRCS Code 635), instead of a control facility to manage manure, sludge, or wastewater generated on site shall comply with all the requirements of this section except the requirements mentioned in subsection (d) and (e) of this section.

(c) General requirements.

(1) An AFO operator must locate, construct, and manage the control facility, alternative treatment practice, and land management unit (LMU) in a manner that will protect surface and groundwater quality.

(2) An AFO operator must prevent nuisance conditions and minimize odor conditions in accordance with the requirements of §321.31(b) of this title (relating to Manure, Litter, and Wastewater Discharge and Air Emission Limitations).

(3) Proper pen drainage shall be maintained at all times. Earthen pen areas shall be maintained to ensure good drainage by scraping uncompacted manure and shaping pen surfaces as necessary to minimize odors and ponding.

(4) An AFO shall not expand operations, either in size or numbers of animals, before amending or enlarging the manure handling procedures and structures to accommodate all additional manure that will be generated by the expanded operations.

(5) As applicable to the operation, the production area of a new or expanding AFO must comply with the requirements of §321.41 of this title (relating to Special Requirements for Discharges to a Playa).

(6) All control facilities, alternative treatment practices, holding pens, and retention control structures (RCSs) must be located outside of the 100-year flood plain unless the structures are protected from inundation and damage that may occur during the 100-year flood event.

(7) Where applicable, equivalent measures contained in a site-specific plan which meet the requirements of this subchapter may be substituted for applicable best management practices and/or portions of the technical requirements in this subchapter. Equivalent measures may be contained in:

(A) United States Department of Agriculture (USDA) - NRCS Field Office Technical Guide for Texas; or

(B) TSSWCB rules; or

(C) a certified water quality management plan certified by the TSSWCB; or

(D) a comprehensive nutrient management plan (CNMP) certified by the TSSWCB, the USDA - NRCS, or their designee.

(8) The AFO operator shall adhere to the well buffer requirements in §321.38(b) of this title (relating to Control Facility Design Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)) and §321.40(g) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Land Application Requirements).

(d) Control facilities.

(1) The AFO operator shall minimize entry of uncontaminated runoff into RCSs. Such measures may include the construction of berms, embankments, or similar structures.

(2) The AFO may discharge from the production area if the discharge is the result of a chronic or catastrophic rainfall event, or catastrophic condition that exceeds the design capacity of an RCS that has been properly designed, constructed, operated, and maintained. RCSs shall be designed in accordance with §321.38 of this title.

(3) The AFO operator constructing a new or modifying an existing RCS shall ensure that all construction and design is certified by a licensed Texas professional engineer. The certification shall be signed and sealed in accordance with the requirements of the Texas Board of Professional Engineers. All RCS design and construction shall, at a minimum, be in accordance with the technical standards developed by the NRCS, American Society of Agricultural and Biological Engineers, American Society of Civil Engineers, American Society of Testing Materials, or other technical standards approved by the executive director, that are in effect at the time of construction. Where site-specific variations are warranted, the operator must ensure a licensed Texas professional engineer documents these variations and their appropriateness to the plan.

(4) Existing RCSs that have been properly maintained without any modifications and have no apparent structural problems or leakage will be considered to be properly designed and constructed with respect to the RCS sizing, embankment design and construction, and liner requirements of this subchapter, provided that any required documentation was completed in accordance with the requirements at the time of construction. If no documentation exists, the RCS must be certified by a licensed Texas professional engineer as providing protection equivalent to the requirements of this section. Structures built in accordance with site-specific NRCS plans and specifications will be considered to be in compliance with the design and capacity requirements of this subchapter if the site-specific conditions are the same as those used by the NRCS to develop the plan (numbers of animals, runoff area, manure generated, etc.) and the RCS is operated and maintained in accordance with NRCS requirements.

(5) RCS embankments and liners shall be designed and constructed in accordance with the requirements of §321.38 of this title.

(6) The AFO operator must maintain copies of documentation of the sources of information, assumptions, and calculations used in determining the appropriate volume capacity of the RCSs.

(7) An irrigation system or other liquid manure removal system used by an AFO must be designed to ensure that the system is capable of dewatering the RCSs on a regular schedule. RCSs shall be equipped with irrigation, or wastewater removal systems capable of dewatering the RCSs whenever needed to restore the operating capacity. Dewatering equipment shall be maintained in proper working order.

(8) Sludge shall be removed from RCSs to prevent the accumulation of sludge from encroaching on other required storage volumes.

(e) Operation and maintenance.

(1) Sufficient volume shall be maintained at all times within the RCS to accommodate sludge, wastewaters, and contaminated stormwater (rainwater runoff and direct precipitation) from the AFO facility.

(2) The operator shall restore such capacity after each rainfall event or accumulation of manure, sludge, or process-generated wastewater that reduces such capacity, when conditions are favorable for irrigation. Favorable conditions shall be when the soil moisture level decreases so that irrigation will not cause runoff.

(3) The normal operating wastewater level in the RCS shall be maintained within the design of the RCS. If the water level in the RCS encroaches into the storage volume reserved for the design rainfall event the operator must document the conditions that resulted in this occurrence. As soon as irrigation is not prohibited, the AFO operator shall irrigate until the water level is at or below the design rainfall level.

(4) Adequate equipment shall be available and maintained in good working order to remove such manure, sludge, and wastewater from the RCS as required to maintain the required volume in compliance with this subchapter.

(5) A rain gauge capable of measuring the design rainfall event shall be installed on site and properly maintained.

(6) The AFO operator shall install and maintain a permanent pond marker in the RCS, visible from the top of the embankment that identifies, either physically or by onsite documentation, the volume required for the design rainfall event.

(7) The AFO operator shall ensure that liners are protected from animals by fences or other protective devices. No tree shall be allowed to grow such that the root zone would intrude or compromise the structure of the liner or embankment. Any mechanical or structural damage to the liner shall be evaluated by a licensed Texas professional engineer within 30 days following discovery of the damage.

(8) The AFO operator shall maintain ponds, pipes, ditches, pumps, and diversion and irrigation equipment to ensure ability to fully comply with the terms of this subchapter.

(9) An AFO operator using a liquid manure handling system shall scrape or flush accumulated manure at least once per week or in accordance with proper design and maintenance of the facility.

(10) If an RCS is in danger of imminent overflow from chronic or catastrophic rainfall or catastrophic conditions, the AFO operator shall take reasonable steps to irrigate wastewater to LMUs only to the extent necessary to prevent overflow from the RCS.

(f) Land application.

(1) The runoff of manure, sludge, or wastewater to water in the state as the result of the application of manure, sludge, or wastewater from an AFO is authorized provided the land application activity is implemented in accordance with a plan for nutrient management detailed in this section.

(2) The AFO operator shall apply manure, sludge, and wastewater uniformly to suitable land at appropriate times and at agronomic rates. Timing and rate of applications shall be in response to crop needs, assuming usual nutrient losses, expected precipitation, and soil conditions.

(3) The AFO operator shall develop and utilize the information in this paragraph for land application unless a nutrient management plan (NMP) is developed and implemented. At that time, the NMP must be followed for land application. The AFO operator must adhere to the following:

(A) a site map showing the location of all LMUs;

(B) the location, description, and limitations of the major soil types within the identified LMUs, and a plan to address the soil limitations;

(C) crop types and rotations to be implemented on an annual basis;

(D) predicted yield goals based on the major soil types within the identified LMUs;

(E) procedures for calculating nutrient budgets to be used to determine application rates;

(F) a detailed description of the type of equipment and method of application to be used in applying the manure, sludge or wastewater; and

(G) projected rates and timing of application of the manure, sludge, and wastewater as well as other sources of nutrients that will be applied to the LMUs.

(4) Discharge of manure, sludge, or wastewater from the LMU is prohibited and shall not cause or contribute to a violation of surface water quality standards, contaminate groundwater, or create a nuisance condition.

(5) Application rates of manure, sludge, and wastewater shall not exceed the crop requirement of the crop or planned crop planting. Land application rates of manure sludge, and wastewater shall be based on the available nutrient content of the manure, sludge, and wastewater.

(6) Land application shall not occur when the ground is frozen or saturated or during rainfall events, unless in accordance with §321.39(b)(3) of this title (relating to Operational Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)).

(7) Irrigation practices shall be managed so as to minimize ponding or puddling of wastewater on the site, prevent discharge of tailwater to waters in the state, prevent pollution of waters in the state, and prevent the occurrence of nuisance conditions.

(8) The land application of manure, sludge, and wastewater at agronomic rates shall not be considered surface disposal and is not prohibited.

(9) Manure, sludge, or wastewater may be applied to the areas in the 100-year flood plain at agronomic rates not to exceed the hydrologic needs of the crop.

(10) The AFO operator shall develop and maintain the calculations and assumptions used for determining land application rates and all nutrient analysis data.

(11) The AFO operator shall annually analyze at least one representative sample of irrigation wastewater and sludge, if applicable, and one representative sample of manure for total nitrogen, total phosphorus, and total potassium.

(12) Vegetative buffer strips shall be no less than 100 feet of vegetation to be maintained between manure, sludge, or wastewater application areas and surface water and watercourses. The AFO operator shall maintain the buffer strips in accordance with NRCS guidelines. A buffer is not required for wastewater irrigation when applied by low-pressure, low-profile center pivot irrigation systems in areas of the state where the annual average rainfall is less than 25 inches per year. Land application of manure, sludge, and wastewater into surface water in the state is an unauthorized discharge and is prohibited.

(13) Manure and sludge storage capacity requirements based upon manure and sludge production, land availability, and NRCS or equivalent standards shall be provided.. Manure or sludge stored for more than 30 days must be stored within the drainage area of an RCS, or stored in a manner (i.e. storage shed, bermed area, tarp covered area, etc.) that otherwise prevents contaminated stormwater runoff from the storage area. Storage for more than 30 days is prohibited in the 100-year flood plain.

(14) Temporary storage of manure and sludge shall not exceed 30 days and is allowed only in LMUs or an RCS drainage area. Temporary storage of manure or sludge in the 100-year flood plain, near water courses or recharge features is prohibited unless protected from inundation and damage that may occur during the 100-year flood event. Contaminated runoff from manure and sludge storage piles must be retained on site.

(15) Any dairy AFO that is located in the major sole-source impairment zone, as defined under §321.32 of this title (relating to Definitions), at a minimum must provide for management and disposal of manure in accordance with §321.42(i) of this title (relating to Requirements Applicable to the Major Sole-Source Impairment Zone).

(16) Nighttime application of liquid or solid manure shall be allowed only in areas with no occupied residence(s) within 1/4 mile from the outer boundary of the LMU receiving manure, sludge, or wastewater application. In areas with an occupied residence within 1/4 mile from the outer boundary of the LMU, application shall only be allowed from one hour after sunrise until one hour before sunset, unless the current occupants of such residences have, in writing, agreed to such nighttime applications.

(17) AFOs introducing wastewater or chemicals to water wellheads for the purpose of irrigation shall install backflow prevention devices in accordance with requirements contained in 16 TAC Chapter 76 (relating to Water Well Drillers and Water Well Pump Installers).

(18) Composting on site at an AFO shall be performed in accordance with Chapter 332 of this title (relating to Composting). AFOs may compost manure generated on site, including manure, sludge, bedding, feed, and dead animals. In accordance with Chapter 332 of this title, an AFO operator may add agricultural products to provide an additional carbon source or bulking agent to aid in the composting process. If the compost areas are not roofed or covered with impermeable material, protected from external rainfall, or bermed to protect from runoff in the case of the design rainfall event, the compost areas shall be located within the drainage of the RCS. The runoff volume from compost areas shall be accounted for in the design of the RCS.

(19) Maintenance of animals.

(A) Animals confined at the AFO shall be restricted from coming into direct contact with surface water in the state through the use of fences or other controls.

(B) An AFO that maintains animals in pastures must maintain crops, vegetation, forage growth, or postharvest residues in the normal growing season, excluding the feed and water trough areas and designated open lots.

(g) Sampling and testing.

(1) Initial sampling. Before commencing application of manure, sludge, or wastewater on LMUs and before resuming land application on LMUs. Where manure, sludge, or wastewater was not applied during the preceding year, the operator shall:

(A) collect and analyze at least one representative sample of manure, sludge (if applicable) and wastewater for total nitrogen, total phosphorus, and total potassium;

(B) collect and analyze at least one representative soil sample from each LMU according to the procedures in paragraphs (4) and (5) of this subsection; and

(C) Utilize the results of these analyses in determining application rates for manure, sludge, and wastewater.

(2) Annual sampling. The operator shall:

(A) collect and analyze at least one representative sample of manure, sludge (if applicable), and wastewater, for total nitrogen, total phosphorus, and total potassium;

(B) collect and analyze at least one representative soil sample from each LMU where manure, sludge, or wastewater was applied during the preceding year according to the procedures in paragraphs (4) and (5) of this subsection; and

(C) utilize the results of these analyses in determining application rates for manure, sludge, and wastewater.

(3) The operator shall make the most recent nutrient analysis available to any recipient of manure, sludge, or wastewater.

(4) Sampling procedures. The operator shall employ sampling procedures using accepted techniques of soil science for obtaining representative samples and analytical results.

(A) Samples shall be collected using approved methods described in the agency's guidance RG-408 entitled "Soil Sampling for Concentrated Animal Feeding Operations."

(B) Samples shall be collected by the operator or its designee and analyzed by a soil testing laboratory annually.

(C) Obtain one composite sample for each LMU and per uniform soil type (soils with the same characteristics and texture) within the LMU.

(D) Composite samples shall be comprised of ten to 15 randomly sampled cores at a depth of zero to six inches.

(5) Laboratory analysis. The operator shall have a laboratory analysis of the soil samples performed for physical and chemical parameters to include: nitrate reported as nitrogen in parts per million (ppm); phosphorus (extractable, ppm, using Mehlich III extractant with Inductively Coupled Plasma (ICP) analysis); potassium (extractable, ppm); sodium (extractable, ppm); magnesium (extractable, ppm); calcium (extractable, ppm); soluble salts (ppm) or electrical conductivity (deciSiemens/meter (dS/m) or millimhos/cm (mmhos/cm) determined from extract of 2:1 volume to volume (v/v) water/soil mixture); and soil water pH (soil:water, 1:2 ratio).

(6) Soil samples shall be submitted to a soil testing laboratory along with a previous crop history of the site, intended crop use, and yield goal. Soil test reports shall include nutrient recommendations for the crop yield goal.

(h) Nutrient utilization plans (NUPs).

(1) Manure, sludge, or wastewater shall not be land applied to a LMU, unless the land application is implemented in accordance with a detailed NUP when results of the annual soil analysis for extractable phosphorus indicate:

(A) a level greater than 200 ppm; or

(B) a level greater than 350 ppm for an LMU where the average annual rainfall is 25 inches or less, erosion control is adequate to keep erosion at the soil loss tolerance (T) or less, and the closest edge of the field is more than one mile from a named stream; or

(C) if ordered by the commission to do so in order to protect water in the state.

(2) An NMP, based on crop removal, certified in accordance with NRCS Practice Standard Code 590 complies with the requirements of a complete and effective NUP.

(3) A NUP, based on crop removal, shall be developed by an employee of the NRCS, a nutrient management specialist certified by the NRCS, the TSSWCB, Texas AgriLife Extension Service, an agronomist or soil scientist on full-time staff at an accredited university located in the State of Texas, or a professional agronomist or soil scientist certified by the American Registry of Certified Professionals in Agronomy, Crops and Soils, after approval by the executive director based on a determination by the executive director that another person or entity identified in this paragraph cannot develop the plan in a timely manner. No land application under an approved NUP shall cause or contribute to a violation of water quality standards or create a nuisance.

(4) Land application under the terms of the NUP may begin as soon as the plan is developed in accordance with this subsection. After a NUP has been implemented, the operator shall land apply in accordance with the NUP until soil phosphorus is reduced below 200 ppm. Thereafter, the AFO operator shall apply manure, litter, or wastewater at agronomic rates according to the requirements of this section.

(i) Recordkeeping requirements.

(1) Records required under this subsection must be kept on site for a minimum of five years from the date the record was created. Any AFO operator that does not use an RCS is not subject to subparagraphs (B) - (D) and (F). Unless otherwise specified, records shall include:

(A) a list of any significant spills of pollutants with the potential to reach water in the state;

(B) a schedule for liquid manure removal;

(C) a date log indicating weekly inspection of wastewater level in the RCS;

(D) a log of all measurable rainfall events;

(E) a copy of the results of initial and annual soils, manure, sludge, and wastewater analyses;

(F) records of dates of inspection of the RCS, and a log of the findings of such inspections;

(G) the groundwater monitoring plan associated with the use of a playa;

(H) site-specific documentation that no significant hydrologic connection exists between the wastewater in the RCS and water in the state;

(I) any written agreement with a landowner which documents the allowance of nighttime application of manure, sludge, or wastewater; and

(J) a copy of the NUP, if required.

(2) For facilities where manure, sludge, or wastewater is applied on LMUs, such records shall include the following information:

(A) the date of manure, sludge, or wastewater application to each field;

(B) the location of the specific LMU and volume or amount applied during each application event;

(C) the acreage of each individual crop on which manure, sludge, or wastewater is applied;

(D) the assumptions for calculating the total amount of nitrogen and phosphorus applied per acre to each field, including sources of nutrients other than manure, sludge, and wastewater on a dry basis;

(E) the percentage of moisture content of the manure and sludge; and

(F) the actual annual yield of each harvested crop.

(3) Where manure, sludge, or wastewater, if applicable, is sold or given to other persons for off-site land application or disposal, the operator must maintain a log of: the date of removal from the AFO; the name and address of the recipient; and the amount, in wet tons, dry tons, or cubic yards, of manure or gallons of wastewater removed from the AFO. (A single pickup load need not be recorded.)

(j) Documentation of liner maintenance. The operator shall have an NRCS engineer, licensed Texas professional engineer, or licensed Texas professional geoscientist review the documentation and conduct a site evaluation every five years.

(k) Groundwater monitoring. In the event that groundwater monitoring is required by §321.41 of this title or required by the executive director, the operator shall annually collect a groundwater sample from each well that provides water for the facility. Each sample shall be analyzed for nitrate as nitrogen and chloride where groundwater monitoring is required by §321.41 of this title and analyzed for nitrate as nitrogen, chloride, and total dissolved solids where groundwater monitoring is required by the executive director. The operator shall use the methods outlined in the groundwater monitoring plan, and compare the analytical results to the baseline data. Data from any required monitoring wells must be submitted to the executive director and kept on site for five years. The first year's sampling shall be considered the baseline data and must be retained on site for the life of the facility, unless otherwise provided by the executive director. If a 10% deviation in concentration of any of the sampled constituents is found, the operator must notify the executive director within 30 days of receiving the analytical results.

(l) Inspections. The AFO operator must conduct the following inspections to assure the facility maintains its efficiency. Records of inspections shall be maintained for a period of five years.

(1) Preventative maintenance program. The operator shall conduct weekly inspections of the control facility and land application equipment to determine preventative maintenance or repair needs. Operators that do not use an RCS are required to conduct inspections for applicable portions of their operation as required by this section. Material handling areas shall be inspected for evidence of, or the potential for, pollutants entering the drainage system or the creation of a nuisance. Inspections shall include visual inspections and equipment testing to uncover conditions that could cause breakdowns or failures resulting in discharge of pollutants to water in the state or the creation of a nuisance condition.

(2) Site inspection. A complete inspection of the control facility and LMUs shall be done and a report documenting the findings of the inspection made at least once a year. The inspection shall be conducted by the operator to verify that the description of potential pollutant sources is accurate, and the controls necessary to reduce pollutants and avoid nuisance conditions are being implemented and are adequate. Records documenting significant observations made during the site inspection shall be retained.

(m) Notification. An existing or new AFO operator has the continuing obligation to provide the executive director notice of the number of animals in confinement in accordance with the following requirements.

(1) All new AFOs which confine a number of animals that fall within the range of the number of animals specified in any of the categories under §321.32(13)(B) of this title shall notify the executive director of their legal entity name, physical location including a map or hand drawn sketch, mailing address, and number of head in confinement.

(2) Such notification shall be in writing and signed by the operator and shall be submitted not later than 180 days after commencement of operation.

(n) Closure required. The AFO operator shall properly close the AFO and RCS in accordance with a closure plan prepared by a licensed Texas professional engineer. The AFO and RCS must be closed within one year of permanently ceasing operations at the facility or an alternate schedule determined by a licensed Texas professional engineer. The closure plan for the RCS must be developed using standards contained in the NRCS Practice Standard Code 360 (Closures of Waste Impoundments, as updated) and using the guidelines contained in the Texas AgriLife Extension Service/NRCS publication #B-6122 (Closure of Lagoons and Earthen Manure Storage Structures, as updated). The RCS or AFO is considered to be properly closed upon certification by a licensed Texas professional engineer that closure is complete according to the closure plan. AFOs shall maintain compliance with the requirements of this subchapter until the facility has been properly closed.

Source Note: The provisions of this §321.47 adopted to be effective July 27, 1999, 24 TexReg 5721; amended to be effective July 15, 2004, 29 TexReg 6652; amended to be effective July 31, 2014, 39 TexReg 5786