Presenter: Bob Sweeney

Commission Agenda Item No. 5
Action
Statewide Aquatic Vegetation Management Rules
November 2000

I. Discussion: In the 76th Legislative Session, the Texas Legislature passed HB 3079, which added a new subchapter G to chapter 11 of the Parks & Wildlife Code. HB 3079 addresses development of a statewide aquatic vegetation management plan.

Staff published proposed rules for public comment in the July 21, 2000 edition of the Texas Register. A public meeting was held on September 6, 2000. Staff received a number of comments, many of which are reflected in whole or in part in the revised rules (Exhibit A).

Throughout this rulemaking process, staff has worked with a stakeholder group that includes representatives of TNRCC and TDA, as well as industry, environmental groups, and river authorities. This group met in February, April, July, and October, and has reviewed and commented on rule drafts prepared by staff.

The rules that are before the Commission for adoption establish a statewide aquatic vegetation management plan that incorporates the requirements of the statute and protects and enhances aquatic resources. The statewide plan requires that measures undertaken to control nuisance aquatic vegetation be consistent with the principles of integrated pest management as described in a guidance document that staff will prepare and regularly update. The guidance document will encourage beneficial aquatic vegetation, prevention of nuisance aquatic vegetation, and public education. The statewide plan will also require, consistent with the statute, that public drinking water suppliers receive notice of proposed aquatic herbicide application. The rules will permit governing entities of public bodies of surface water to adopt, subject to TNRCC, TDA, and TPWD approval, local plans that are at least as stringent as the state plan. The rules require that the Department receive notification of all proposed control measures for nuisance aquatic vegetation, and give the Department an opportunity to amend, reject, or make recommendations regarding proposed control measures under the state plan.

The most significant changes to the rules from the proposed version are: 1. inclusion of a "purpose" statement; 2. inclusion of standards governing the content of the guidance document; 3. more detail about the content of and procedures for adopting local plans; and 4. a procedure for modifying the guidance document.

II. Recommendation: The staff recommends the Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts new subchapter K of 31 Texas Administrative Code Chapter 57, relating to the statewide aquatic vegetation management plan, as shown in Exhibit A."

Attachments-2

1. Exhibit A-Rule
2. Exhibit B-Fiscal Note (Available upon request)


Commission Agenda Item No. 5
Exhibit A

Aquatic Vegetation Management Rules

§57.930. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise. All other words and terms in this subchapter shall have the meanings assigned in the Texas Parks and Wildlife Code.

(1) Canal – an artificial waterway used for the transportation of water for agricultural and/or industrial purposes but for no other purpose.

(2) EPA - the United States Environmental Protection Agency.

(3) Governing entity - the state agency or other political subdivision with jurisdiction over a public body of surface water.

(4) Integrated pest management - the coordinated use of pest and environmental information and pest control methods to prevent unacceptable levels of pest damage by the most economical means and in a manner that will cause the least possible hazard to persons, property, and the environment. Integrated pest management includes consideration of ecological, biological, chemical, and mechanical strategies for control of nuisance aquatic vegetation.

(5) Licensed Applicator - a person who holds a valid license for aquatic herbicide application from the Texas Department of Agriculture.

(6) Local plan - a local aquatic vegetation management plan authorized by Parks and Wildlife Code, §11.083 and meeting the requirements in §57.933 of this title (relating to Adoption and Applicability of Local Aquatic Vegetation Plans) and §57.934 of this title (relating to Local Aquatic Vegetation Plan).

(7) MCL - maximum contaminant level.

(8) Nuisance aquatic vegetation - any non-native or native vascular plant species that is determined, in consideration of department guidance, to have the potential to substantially interfere with the uses of a public body of surface water.

(9) Public body of surface water - any body of surface water that is not used exclusively for an agricultural purpose. The term does not include impounded water on private property or water being transported in a canal.

(10) Public drinking water provider - any person who owns or operates a system for the provision to the public of water for human consumption through pipes or other constructed conveyances, if such system has at least fifteen service connections or regularly serves at least twenty-five individuals at least 60 days out of the year.

(11) State plan - the state aquatic vegetation management plan authorized by Parks & Wildlife Code, §11.082, and described in §57.931 of this title (relating to State Aquatic Vegetation Plan Applicability) and §57.932 of this title (relating to State Aquatic Vegetation Plan).

(12) TDA - the Texas Department of Agriculture.

(13) TNRCC - the Texas Natural Resource Conservation Commission.

(14) TPWD - the Texas Parks and Wildlife Department.

(15) Treatment proposal – a submission to TPWD on a TPWD-approved form that describes intended measures to control nuisance aquatic vegetation.

(16) Water district - a conservation and reclamation district or an authority created under authority of Section 52(b)(1) or (2), Article III, or Section 59, Article XVI, Texas Constitution, that has jurisdiction over a public body of surface water. The term does not include a navigation district or a port authority.

§57.931. State Aquatic Vegetation Plan Applicability. The state plan governs throughout the state except where a governing entity has adopted an approved local plan.

§57.932. State Aquatic Vegetation Plan.

    1. Requirements Applicable to All Measures to Control Nuisance Aquatic

Vegetation.

(1) Purpose. The purpose of the state aquatic vegetation plan is to provide for the coordination, oversight, public notice, guidance and where applicable enforcement of all activities, including aquatic herbicide use, related to the management of nuisance aquatic vegetation on public bodies of surface water.

(2) Standards. All measures that a person undertakes to control nuisance aquatic vegetation shall be consistent with the principles of integrated pest management as defined in 57.930(4). A guidance document prepared by TPWD will describe measures to control nuisance aquatic vegetation, and the minimum standards applicable to governing entities that regulate a public body of surface water and persons who propose to treat nuisance aquatic vegetation. The guidance document will include:

    1. Encouragement of the growth and, where lacking, establishment of native aquatic vegetation that provides habitat for fish, the food chain that supports desirable fish populations, other desirable aquatic organisms and wildlife without interfering with reasonable recreational use, navigation, drinking water supply, flow of water to power plants, industrial use, irrigation, or other beneficial uses;
    2. Encouragement of efforts to address the root causes supporting the overgrowth of nuisance aquatic vegetation;

(C) Support for continued monitoring and assessment activities to identify new nuisance aquatic vegetation species and act appropriately to eliminate or minimize ecological impacts;

(D) Support for continued research and evaluation of vegetation control methods that will cause the least possible hazard to persons, property and the environment as required by application of integrated pest management principles;

(E) Encouragement of public input in decision-making processes;

(F) Encouragement of ongoing education and outreach efforts as to the importance of managing aquatic vegetation to assure the ecological health of public waters;

(G) Information to guide individuals wishing to treat nuisance aquatic vegetation; and

(H) Criteria for choosing management responses to nuisance aquatic vegetation problems based on the uses of the water body and the nature of the problem. These criteria may take the form of a three-tier system: Tier I, which calls for immediate response and eradication; Tier II, which calls for ongoing control where nuisance aquatic vegetation is well-established; and Tier III, which calls for monitoring and a contingency plan in case the problem worsens. The three-tier system is subject to change as provided in section 57.936 (Modification of Guidance).

  1. Review by TPWD. Prior to undertaking any measures to control nuisance aquatic vegetation, a person operating under the state plan shall provide to TPWD a treatment proposal, on a form included in the guidance document, no later than the 14th day before the measures are to begin. TPWD will review and may disapprove or amend any treatment proposal and will respond no later than the day before the proposed control measures are to begin. Where appropriate, TPWD will provide technical advice and recommendations regarding prevention of nuisance aquatic vegetation problems. The person submitting the treatment proposal shall have the burden of demonstrating compliance with the state plan.

(b) Additional Requirements Applicable to the Use of Aquatic Herbicides to Control Nuisance Aquatic Vegetation.

(1) No person shall apply aquatic herbicide in a public body of surface water where the state plan governs unless the herbicide is applied in a manner consistent with this plan.

(2) All persons intending to apply an aquatic herbicide shall provide written notice to the governing entity, TPWD, all public drinking water providers that have an intake within two river miles of a site at which an application of aquatic herbicide is proposed to occur, and all persons who have requested notice (TPWD will maintain a list) no later than the 14th day before the application is to occur. The notice shall include:

(A) the dates of the proposed application;

(B) all label information for the aquatic herbicide to be applied;

(C) a statement that TPWD’s guidance document has been reviewed and the proposed herbicide application is consistent with the principles of integrated pest management, section 57.932(a)(2) of these rules, and that document;

(D) information demonstrating that the proposed application will not result in exceeding:

(i) the maximum contaminant level of the herbicide in finished drinking water as set by the TNRCC and the EPA; or

(ii) if the aquatic herbicide does not have an MCL established by the TNRCC and the EPA, the maximum label rate; and

(E) TDA applicator license number, if any.

(3) An individual who is not a licensed applicator may not apply aquatic herbicides unless the governing entity affirmatively finds, after receiving the proper notice as provided in subsection (b)(2) of this section, that the application will be consistent with the state plan. The governing entity shall respond to the notice given by an individual who is not a licensed applicator no later than the day before the date the application is scheduled to occur.

(4) An individual who is a licensed applicator may apply aquatic herbicide after notice consistent with subsection (b)(2) of this section if the governing entity finds that the application would be consistent with the state plan or does not disapprove the application no later than the day before the application is to occur.

(5) After receiving notice of a proposed application of aquatic herbicide, a governing entity, or TPWD in the absence of such an entity, shall:

(A) provide the individual proposing the application with the state plan and TPWD guidance document;

(B) notify the individual in writing that it is a violation of state law to apply aquatic herbicides in a public body of water in a manner inconsistent with the state plan; and

(C) determine whether the proposed application is consistent with the plan.

(6) The governing entity shall prohibit the proposed application of aquatic herbicide if the governing entity finds that the proposed application is inconsistent with the state plan, or, if the proposed application is consistent with the state plan, so notify the person.

(7) State money shall not be used to pay for treatment of a public body of surface water with an aquatic herbicide unless the application of the herbicide is performed by an applicator licensed for aquatic herbicide application by the TDA.

(8) Any application of aquatic herbicide shall comply with label rates approved by the EPA.

§57.933. Adoption and Applicability of Local Aquatic Vegetation Plans. A local aquatic vegetation plan may be adopted and shall apply to particular public bodies of surface water as provided in Texas Parks and Wildlife Code, §11.083. A governing entity intending to operate under a local aquatic vegetation plan shall seek approval of its proposed local aquatic vegetation plan under §57.934 of this title (relating to Local Aquatic Vegetation Plan).

§57.934. Local Aquatic Vegetation Plan.

(a) To be approvable by TNRCC, TPWD, and TDA, a local plan must meet the minimum standards set forth in §57.932 of this title (relating to State Aquatic Vegetation Plan). Additional or more specific requirements are approvable.

(b) A local plan may take into account the particular needs and uses of the public body or bodies of surface water to which it will apply. The local plan may allow herbicide use if the person proposing to apply the herbicide notifies the governing entity not later than the 14th day before the proposed date of application. The local plan shall provide that treatment proposals shall be submitted concurrently to TPWD and the governing entity no later than the 14th day before the measures are to begin.

(c) Proposed local plans should be developed in cooperation with TPWD, TDA, and TNRCC, and shall be submitted to TPWD on a form prepared by TPWD. TPWD will coordinate review of the plan by TNRCC and TDA.

(d) Governing entities shall seek and encourage public participation in the creation and review of local plans. At a minimum, TPWD, TNRCC, or TDA will hold at least one public meeting in the area affected by the local plan. Public comment will be received by TPWD, TNRCC, and TDA for thirty days after the local plan is submitted for agency approval. TPWD, TNRCC, and TDA will review and respond to local plan submittals within sixty days of receipt.

§57.935. Recordkeeping. Governing entities shall retain copies of the following documents generated under this subchapter for a minimum of five years from generation: all local plan submissions and approvals, all treatment proposals submitted to TPWD, all notices received and provided, all control measures taken by the governing entity (including records of date, place, location, type, and amount of all aquatic herbicide applications), and any other information relevant to a particular individual request for shoreline treatment.

§57.936. Modification of Guidance. TPWD will publish notice in the Texas Register and seek input from interested parties when it proposes to modify the guidance document. TPWD will also mail notice to persons who so request. Notice shall be provided at least sixty days prior to the effective date of any changes to the guidance document. The notice shall describe the proposed modifications and the reasons for the modifications, and how comments on the proposed modifications may be made to TPWD.


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