Presenter: Gary Saul

Commission Agenda Item No. 6
Harmful and Potentially Harmful Fish, Shellfish, and Aquatic Plants
Special Provisions - Water Spinach
November 5, 2009

I. Executive Summary: This item provides information about the status of water spinach in Texas and provides the Commission with regulatory options for their consideration. The department has previously proposed rules to regulate the cultivation, possession, transportation, and sale of water spinach. These rules may be considered by the Commission.

II. Discussion: Under Parks and Wildlife Code, §66.007, no person may import, possess, sell, or place into water of this state exotic harmful or potentially harmful fish, shellfish, or aquatic plants except as authorized by rule or permit issued by the Department. Possession of water spinach was prohibited in Texas until 2005, after the department discovered that individuals in the Houston area had been growing and selling it undetected for over two decades. The department initiated surveys in an effort to determine if water spinach was growing in the wild in the Houston area and concluded that it was not. On that basis, the department in 2005 allowed the possession of water spinach for personal consumption while it developed a risk analysis to determine the potential environmental hazards associated with allowing culture and sale of water spinach.

At the May 2009 meeting of the Regulations Committee, staff received permission to publish proposed rules to regulate the cultivation, possession, transportation, and sale of water spinach. The proposed rules were published in the July 24, 2009 issue of the Texas Register (34 TexReg 4838).

At the August 2009 meeting, the Commission tabled consideration of the proposed rules. Staff was requested to prepare a white paper on the status of water spinach in Texas. That report has been provided to Commissioners and the results confirm the department's risk analysis that was completed earlier this year. Water spinach is a low-risk species with little potential for environmental hazard in Texas, provided it is strictly regulated. Water spinach has not been detected in 10 years of vegetation surveys conducted by staff on public waters and no plants were detected in directed searches of public lands and waterways in areas of water spinach commerce.

Staff has provided five regulatory options for the Commission to consider, including 1) propose new rules to prohibit possession of water spinach, 2) adopt proposed regulations, 3) continue the status quo, 4) propose new rules that are substantially different than the proposed rules, and 5) propose new rules to deregulate water spinach.

The pending proposed rules would implement a regulatory regime to require persons who grow water spinach for any purpose to acquire an exotic species permit issued by the department (in addition to any other permits required by other governmental entities). The proposed rules would establish facilities standards, require facility inspections, impose recordkeeping and reporting requirements, and prescribe processing and packaging standards, including standards for transportation.

III. Recommendation: If the Commission wishes to adopt the pending proposal, staff recommends the Texas Parks and Wildlife Commission adopt the following motion:

"The Texas Parks and Wildlife Commission adopts the repeal of §57.136, an amendment to §57.113, and new §§57.136 and 57.137, concerning the cultivation, possession, and sale of water spinach, with changes as necessary to the proposed text as published in the July 24, 2009, issue of the Texas Register (34 TexReg 4838)."

Attachments - 1

  1. Exhibit A - Proposed Rules