1. (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.

2. (b) Applicability.

   1. (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, litter, or wastewater generated on site shall comply with all the requirements of this section.
   2. (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) - (3) of this section are considered to meet all technical requirements of this section.

   3. (3) The owner of an AFO not defined or designated as a CAFO who does not use a control facility to manage manure, litter, or wastewater generated on site shall adhere to the following general requirements.

      1. (A) The owner shall ensure that manure, litter, or wastewater generated at an AFO is stored, beneficially used, or disposed of in a manner that will protect surface and groundwater quality.
      2. (B) The owner shall prevent nuisance conditions and minimize odor conditions.

3. (c) General requirements.

   1. (1) An AFO operator must locate, construct, and manage the control facility and land management unit (LMU) in a manner that will protect surface and groundwater quality.
   2. (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. (3) The AFO may discharge from the production area, if the discharge is the result of a chronic or catastrophic rainfall event, or catastrophic condition which exceeds the design capacity of a retention control structure (RCS) that has been properly designed, constructed, operated, and maintained. RCSs shall be designed in accordance with §321.38 of this title (relating to Control Facility Design Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)).
   4. (4) An AFO shall not expand operations, either in size or numbers of animals, before amending or enlarging the waste handling procedures and structures to accommodate all additional wastes that will be generated by the expanded operations.
   5. (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. (6) All control facilities, including holding pens and RCSs, must be located outside of the 100-year flood plain unless the control facilities are protected from inundation and damage that may occur during the flood event.

   7. (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:

      1. (A) United States Department of Agriculture (USDA) - Natural Resources Conservation Service (NRCS) Field Office Technical Guide (FOTG) for Texas; and/or
      2. (B) TSSWCB regulations; and/or
      3. (C) a certified water quality management plan certified by the TSSWCB; and/or
      4. (D) a comprehensive nutrient management plan (CNMP) certified by the TSSWCB, the USDA - NRCS, or their designee.

4. (d) Control facilities.

   1. (1) The AFO operator shall minimize entry of non-process wastewater into RCSs. Such measures may include the construction of berms, embankments, or similar structures.
   2. (2) 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 and to minimize the entrance of uncontaminated storm water to the RCS.
   3. (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 State Board of Professional Engineers. All RCS design and construction shall, at a minimum, be in accordance with the technical standards developed by the NRCS. The operator must use those standards that are current 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. (4) Existing facilities which have been properly maintained without any modifications and show no signs of structural breakage or leakage will be considered to be properly constructed. 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, wastes generated, etc.).
   5. (5) RCS embankments and liners shall be designed and constructed in accordance with the requirements of §321.38 of this title.
   6. (6) The AFO operator shall adhere to the well buffer requirements in §321.38 of this title.
   7. (7) 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 retention facilities.
   8. (8) RCSs shall be equipped with either irrigation, evaporation, or liquid removal systems capable of dewatering the RCSs.
   9. (9) Sludge shall be removed from RCSs in accordance with the design schedule for cleanout to prevent the accumulation of sludge from exceeding the designed sludge volume of the structure.

5. (e) Operation and maintenance.

   1. (1) Sufficient volume shall be maintained at all times within the RCS to accommodate sludge, wastewaters, and contaminated storm water (rainwater runoff and direct precipitation) from the AFO facility.
   2. (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. (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 (25-year or 100-year) 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. (4) Adequate equipment shall be available and maintained in good working order to remove such waste and wastewater as required to maintain the retention capacity of the facility for compliance with this subchapter.
   5. (5) A rain gauge capable of measuring the required rainfall event shall be installed on site and properly maintained.
   6. (6) A permanent pond marker (measuring device) shall be maintained in the RCS to show the following: the volume for a 25-year, 24-hour rainfall event or a 100-year, 24-hour rainfall event, as required by the facility's design standard; and the predetermined minimum treatment volume within any treatment lagoon. The markings on the marker shall be visible from the top of the levee.
   7. (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. Any mechanical or structural damage to the liner shall be evaluated by a licensed Texas professional engineer within 30 days of the damage.
   8. (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. (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. (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.

6. (f) Land application.

   1. (1) The runoff of manure, litter, or wastewater to water in the state as the result of the application of manure, litter, 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. (2) The AFO operator shall apply manure, litter, 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. (3) The AFO operator shall develop and utilize the information in this paragraph for land application unless an NMP is developed and implemented. At that time, the NMP must be followed for land application. The AFO operator must adhere to the following:

      1. (A) a site map showing the location of any land application areas, either on site or off site which are owned, operated, controlled, rented, or leased by the facility owner or operator which will be utilized for land application of waste or wastewater;
      2. (B) the location, description, and limitations of the major soil types within the identified LMUs, and a plan to address the soil limitations;
      3. (C) crop types and rotations to be implemented on an annual basis;
      4. (D) predicted yield goals based on the major soil types within the identified LMUs;
      5. (E) procedures for calculating nutrient budgets to be used to determine application rates;
      6. (F) a detailed description of the type of equipment and method of application to be used in applying the waste or wastewater; and
      7. (G) projected rates and timing of application of the manure and wastewater as well as other sources of nutrients that will be applied to the LMUs.
   4. (4) Discharge of manure, litter, 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. (5) Application rates shall not exceed the crop requirement of the crop or planned crop planting with any land application of wastewater and/or manure. Land application rates of manure and wastewater shall be based on the available nutrient content.
   6. (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 Control Facility Requirements Applicable to Concentrated Animal Feeding Operations (CAFOs)).
   7. (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. (8) The land application of manure, litter, and wastewater at agronomic rates shall not be considered surface disposal and is not prohibited.
   9. (9) Manure, litter, 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. (10) The AFO operator shall develop and maintain the calculations and assumptions used for determining land application rates and all nutrient analysis data.
   11. (11) The AFO operator shall annually analyze at least one representative sample of irrigation wastewater, if applicable, and one representative sample of manure/litter for total nitrogen, total phosphorus, and total potassium.
   12. (12) Vegetative buffer strips shall be no less than 100 feet of vegetation to be maintained between waste or wastewater application areas and surface water and watercourses. The AFO operator shall maintain the buffer strips in accordance with NRCS guidelines.
   13. (13) Manure/litter storage capacity requirements based upon manure/litter and waste production, land availability, and the USDA - NRCS FOTG for Texas shall be provided. Permanent storage structures for AFO operations must meet NRCS design specifications. All litter/manure removed from operation and not temporarily stored must be located within the drainage of the RCS, in a well-drained area with no ponding of water, and where the top and sides of stockpiles are adequately sloped to ensure proper drainage to prevent polluted rainfall runoff.
   14. (14) Temporary storage of manure in the 100-year flood plain, near water courses or recharge features is prohibited unless protected by berms or other structures sufficient to prevent inundation during a 100-year storm. Temporary storage of manure/litter shall not exceed 30 days and is only allowed in LMUs. Polluted runoff from manure/litter storage piles must be retained on site.
   15. (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 waste in accordance with §321.42(i) of this title (relating to Requirements Applicable to the Major Sole-Source Impairment Zone).
   16. (16) Nighttime application of liquid or solid waste shall be allowed only in areas with no occupied residence(s) within 1/4 mile from the outer boundary of the LMU receiving manure/litter 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. (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. (18) Composting on site at an AFO shall be performed in accordance with Chapter 332 of this title (relating to Composting). AFOs may compost waste generated on site, including manure, litter, 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. (19) Maintenance of animals.

       1. (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.
       2. (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.

7. (g) Soil sampling and testing.

   1. (1) The AFO operator is not required to collect soil samples from LMUs where manure, litter, or wastewater has not been applied during the preceding year. The AFO operator must comply with paragraph (2) of this subsection before resuming land application to such LMUs.
   2. (2) Prior to commencing wastewater irrigation or manure, litter application on land owned, operated, controlled, rented, or leased by the AFO operator, and annually thereafter, the operator shall collect and analyze representative soil samples from each of the LMUs according to the following procedures.
   3. (3) Sampling procedures shall employ accepted techniques of soil science for obtaining representative samples and analytical results. Samples should be collected using approved procedures described in the executive director's guidance document entitled "Soil Sampling for Nutrient Utilization Plans" as updated.
   4. (4) Samples should be collected within the same 45-day time frame each year.
   5. (5) One composite sample shall be collected for each soil depth zone per LMU and per uniform soil type (soils with the same characteristics and texture) within the LMU.

   6. (6) Composite samples shall be comprised of ten to 15 randomly sampled cores obtained from each of the following soil depth zones:

      1. (A) Zone 1: zero to six inches for LMUs where the manure or litter is incorporated directly into the soil or zero to two inches for LMUs where the waste is not incorporated into the soil; if a zero to two-inch sample is required under this subsection, then an additional sample from the two to six-inch soil depth zone shall be obtained in accordance with the provisions of this section; and
      2. (B) Zone 2: six to 24 inches.
   7. (7) 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.

   8. (8) Chemical/nutrient parameters and analytical procedures for laboratory analysis of soil samples from LMUs shall include the following:

      1. (A) nitrate reported as nitrogen in parts per million (ppm);
      2. (B) phosphorus (extractable, ppm) - Mehlich III (ppm), using Inductively Coupled Plasma (ICP);
      3. (C) potassium (extractable, ppm);
      4. (D) sodium (extractable, ppm);
      5. (E) magnesium (extractable, ppm);
      6. (F) calcium (extractable, ppm);
      7. (G) soluble salts/electrical conductivity (deciSiemens/meter (dS/m)) - determined from extract of 2:1 (volume to volume (v/v)) water/soil mixture; and
      8. (H) soil water pH.

8. (h) Nutrient utilization plans (NUPs).

   1. (1) An operator shall not land apply any waste or wastewater to the LMU unless the waste or wastewater application is implemented in accordance with a detailed NUP when results of the annual soil analysis for extractable phosphorus indicate:

      1. (A) a level greater than 200 ppm of extractable phosphorus (reported as P) in Zone 1 for a particular LMU; or
      2. (B) a level greater than 350 ppm of extractable phosphorus in Zone 1 (zero to six-inch depth) 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
      3. (C) if ordered by the commission to do so in order to protect the quality of waters in the state.
   2. (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. (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 Cooperative Extension, 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. (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.

9. (i) Recordkeeping requirements.

   1. (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:

      1. (A) a list of any significant spills of pollutants with the potential to reach water in the state;
      2. (B) a schedule for liquid waste removal;
      3. (C) a date log indicating weekly inspection of wastewater level in the RCS;
      4. (D) a log of all measurable rainfall events;
      5. (E) a copy of the results of initial and annual soils, manure, litter, and wastewater analyses;
      6. (F) records of dates of inspection of the RCS, and a log of the findings of such inspections as required under subsection (k)(2) of this section;
      7. (G) the groundwater monitoring plan associated with the use of a playa;
      8. (H) a copy of the NUP, if required;
      9. (I) site-specific documentation that no significant hydrologic connection exists between the wastewater in the RCS and water in the state; and
      10. (J) any written agreement with a landowner which documents the allowance of nighttime application of manure, litter, or wastewater.

   2. (2) For facilities where manure, litter, or wastewater is applied on property owned, operated, controlled, rented, or leased by the AFO owner or operator, such records shall include the following information:

      1. (A) the date of manure, litter, or wastewater application to each field;
      2. (B) the location of the specific application site and the number of acres utilized during each application event;
      3. (C) the acreage of each individual crop on which manure, litter, or wastewater is applied;
      4. (D) the basis for and the total amount of nitrogen and phosphorus applied per acre to each field, including sources of nutrients other than manure, litter, and wastewater; the number of dry tons; and the percentage of nitrogen/phosphorus based on a dry basis;
      5. (E) the percentage of moisture content of the manure; and
      6. (F) the actual annual yield of each harvested crop.
   3. (3) Where manure, litter, or wastewater, if applicable, is removed from the facility, records must be maintained in accordance with §321.46(d)(8) of this title (relating to Concentrated Animal Feeding Operation (CAFO) Pollution Prevention Plan, Site Evaluation, Recordkeeping, and Reporting). If manure 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 CAFO; the name of hauler; and the amount, in wet tons, dry tons, or cubic yards, of waste removed from the CAFO. (A single pickup load need not be recorded.) Where the wastes are to be land applied by the hauler, the operator must make available to the hauler any nutrient sample analysis of the manure from that year.
10. (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 do a site evaluation every five years.
11. (k) Groundwater monitoring. In the event that one or more samples of groundwater are required, the operator must sample each well annually for nitrate as nitrogen, chloride, and total dissolved solids using the methods outlined in the pollution prevention 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.

12. (l) Inspections. The AFO operator must conduct the following inspections to assure the facility maintains its efficiency.

    1. (1) Preventative maintenance program. The operator shall periodically inspect designated equipment at the control facility and LMUs. 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 waters in the state or the creation of a nuisance condition.
    2. (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. Records of inspections shall be maintained for a period of five years.

13. (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. (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(12)(B) of this title (relating to Definitions) 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. (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.
14. (n) Closure required. The AFO operator shall properly close the AFO and RCS within one year of inactivity or ceasing of operations at the facility, or in accordance with an alternative schedule in a closure plan prepared by a licensed Texas professional engineer. The closure plan for the RCS must be developed using standards contained in the NRCS Practice Standard 360 (Closures of Waste Impoundments, as updated) and using the guidelines contained in the Texas Cooperative Extension/NRCS publication #B-6122 (Closure of Lagoons and Earthen Manure Storage Structures, as updated). 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.