Commission Meeting Agenda Item No. 2
Presenter: Monica McGarrity
Action
Aquatic Vegetation Management Rules
Recommended Adoption of Proposed Changes
March 24, 2022
I. Executive Summary: The Texas Parks and Wildlife Department (TPWD) staff is seeking permission to publish proposed amendments to rules governing management of nuisance aquatic vegetation in public waters in the Texas Register.
II. Discussion: Texas Parks and Wildlife Code chapter 11 directs TPWD to adopt a state aquatic vegetation management plan following the generally accepted principles of integrated pest management. The proposed amendments to rules concerning aquatic vegetation management would provide a qualified exception for waterfront landowners from the treatment proposal preparation and submission requirement for physical removal of floating aquatic vegetation from around their docks and shorelines.
III. Recommendation: The staff recommends that the Commission adopt the proposed motion:
“The Texas Parks and Wildlife Commission adopts amendments to 31 Texas Administrative Code §57.930, concerning Definitions, and §57.932, concerning State Aquatic Vegetation Plan, with changes as necessary to the proposed text as published in the February 18, 2022 issue of the Texas Register (47 TexReg 728).”
Attachment – 1
Commission Agenda Item No. 2
Exhibit A
STATE AQUATIC VEGETATION PLAN
PROPOSAL PREAMBLE
1. Introduction.
The Texas Parks and Wildlife Department (the department) proposes amendments to 31 TAC §57.930 and §57.932, concerning Aquatic Vegetation Management. The proposed amendments would provide a qualified exception for waterfront landowners from the current requirement for preparation and submission of a treatment proposal for physical removal of floating aquatic vegetation in public water adjacent to private property.
The proposed amendment to §57.930, concerning Definitions, would create a definition for floating aquatic vegetation that considers both floating species of plants not rooted in the substrate and floating mats of fragments of vegetation dislodged through natural processes such as flooding.
The proposed amendment to §57.932, concerning State Aquatic Vegetation Plan, would add new subsection (b)(5) to exempt property owners or managers or agents thereof from being required to submit a treatment proposal for physical removal of floating aquatic vegetation from public water adjacent to the property, shorelines, docks, or other waterfront infrastructure associated with the property, provided controlled exotic invasive species are possessed, transported, and disposed in compliance with §57.113 of this title, concerning Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants), as applicable. The department has determined that removal of aquatic invasive plants is beneficial to the aquatic ecosystem and removal of small quantities of native floating aquatic plants is not detrimental. Furthermore, this activity does not present a risk of spreading aquatic invasive plant species provided compliance with regulations regarding possession, transport, and disposal of harmful or potentially harmful exotic aquatic plants.
2. Fiscal Note.
Monica McGarrity, Senior Scientist for Aquatic Invasive Species in the Inland Fisheries Division, has determined that for each of the first five years that the rules as proposed are in effect, there will be fiscal implications to the department as a result of administering or enforcing the rules. Those implications are expected to be negligible, as they consist of a reduction in staff time required to review treatment proposals. There will be no implications to other units of state or local government.
3. Public Benefit/Cost Note.
Ms. McGarrity also has determined that that for each of the first five years that the rules as proposed are in effect:
(A) The public benefit anticipated as a result of enforcing or administering the proposed rules will be a reduction in administrative complexity with respect to the removal of nuisance aquatic vegetation.
(B) Under provisions of Government Code, Chapter 2006, a state agency must prepare an economic impact statement and a regulatory flexibility analysis for a rule that may have an adverse economic effect on small businesses and micro-businesses. Those guidelines state that an agency need only consider a proposed rule’s "direct adverse economic impacts" to small businesses and micro-businesses to determine if any further analysis is required. For that purpose, the department considers "direct economic impact" to mean a requirement that would directly impose recordkeeping or reporting requirements; impose taxes or fees; result in lost sales or profits; adversely affect market competition; or require the purchase or modification of equipment or services. The department has determined that the proposed rules will not result in any direct economic costs to any small businesses, micro-businesses, or rural communities; therefore, the department has a determined that neither the economic impact statement nor the regulatory flexibility analysis described in Government Code, Chapter 2006, is required.
(C) The department has not drafted a local employment impact statement under the Administrative Procedures Act, §2001.022, as the agency has determined that the rules as proposed will not impact local economies.
(D) The department has determined that Government Code, §2001.0225 (Regulatory Analysis of Major Environmental Rules), does not apply to the proposed rules.
(E) The department has determined that there will not be a taking of private real property, as defined by Government Code, Chapter 2007, as a result of the proposed rules.
(F) In compliance with the requirements of Government Code, §2001.0221, the department has prepared the following Government Growth Impact Statement (GGIS). The rules as proposed, if adopted, will:
(1) neither create nor eliminate a government program;
(2) not result in an increase or decrease in the number of full-time equivalent employee needs;
(3) not result in a need for additional General Revenue funding;
(4) not affect the amount of any fee;
(5) not create or expand a new regulation;
(6) limit an existing regulation (by removing applicability in certain instances);
(7) neither increase nor decrease the number of individuals subject to regulation; and
(8) not positively or adversely affect the state’s economy.
4. Request for Public Comment.
Comments on the proposed rule may be submitted to Monica McGarrity, Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas 78744; (512) 552-3465; email: monica.mcgarrity@tpwd.texas.gov or via the department website at www.tpwd.texas.gov.
5. Statutory Authority.
The amendments are proposed under the authority of Parks and Wildlife Code, §11.082, which authorizes the department to develop and by rule adopt a state aquatic vegetation management plan following the generally accepted principles of integrated pest management.
The proposed amendments affect Parks and Wildlife Code, Chapter 11.
6. Rule Text.
§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) – (3) (No change.)
(4) Floating aquatic vegetation — A plant species that occurs on the surface of a lake or pond without attachment by roots to the soil at the bottom of the waterbody or free-floating mats of fragments of ordinarily rooted species of vegetation that have become dislodged through natural processes such as flooding.
(5)[(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.
(6)[(5)] Licensed Applicator — a person who holds a valid license for aquatic herbicide application from the Texas Department of Agriculture.
(7)[(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).
(8)[(7)] MCL — maximum contaminant level.
(9)[(8)] NPDES — National Pollutant Discharge Elimination System. The NPDES Permit Program is administered by EPA under the Clean Water Act.
(10)[(9)] Nuisance aquatic vegetation — any non-native or native vascular plant species that is determined, in consideration of TPWD guidance, to have the potential to substantially interfere with the uses of a public body of surface water.
(11)[(10)] 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.
(12)[(11)] 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.
(13)[(12)] State plan — the state aquatic vegetation management plan authorized by Parks and 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).
(14)[(13)] TCEQ — Texas Commission on Environmental Quality.
(15)[(14)] TDA — the Texas Department of Agriculture.
(16)[(15)] TPWD — the Texas Parks and Wildlife Department.
(17)[(16)] Treatment proposal — a submission to TPWD on a TPWD-approved form that describes intended measures to control nuisance aquatic vegetation.
(18)[(17)] 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.
§57.932. State Aquatic Vegetation Plan
(a) Requirements Applicable to All Measures to Control Nuisance Aquatic Vegetation.
(1) – (3) (No change.)
(4) Review by TPWD. Except as provided in paragraph (5) of this subsection, prior [Prior] to undertaking any measures to control nuisance aquatic vegetation in a public body of surface water, a person operating under the state plan (exclusive of TPWD personnel or its contractors) 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. Where a local plan governs, treatment proposals are not subject to TPWD review, approval, and amendment, but are to be submitted to TPWD (pursuant to §57.934(b) of this title, relating to Local Aquatic Vegetation Plan) for informational purposes.
(5) The owner or manager of a property or their agent, other than persons hired solely for the purposes of removing aquatic vegetation or persons using mechanical harvesters, is not required to submit a treatment proposal for physical removal of floating aquatic plants from public water adjacent to the property, shorelines, docks, or other waterfront infrastructure associated with the property provided these species are possessed, transported, and disposed in compliance with §57.113 of this title (relating to Harmful or Potentially Harmful Fish, Shellfish, and Aquatic Plants.
(b) (No change.)
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency’s authority to adopt.
Issued in Austin, Texas, on