Harmful and Potentially Harmful Exotic Aquatic Plants Cultivation Of Dotted Duckweed

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HARMFUL AND POTENTIALLY HARMFUL EXOTIC AQUATIC PLANTS

CULTIVATION OF DOTTED DUCKWEED

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §57.114 and new §57.129, concerning Harmful and Potentially Harmful Exotic Fish, Shellfish, and Aquatic Plants. The proposed rules would authorize the issuance of permits for the possession, cultivation, sale, and transport of dotted duckweed (Landoltia punctata) under specific conditions.

        Under current rule (§57.112(3)(C)(i)), dotted duckweed is designated a prohibited harmful or potentially harmful exotic aquatic plant and cannot be cultivated for commercial purposes. The department recently received a petition for rulemaking requesting the alteration of current rules to create an exception allowing the commercial cultivation of dotted duckweed under the existing commercial aquaculture permit. After comprehensive analysis of all significant parameters, the department determined that dotted duckweed can be safely cultivated, provided all culture and handling occurs in fully enclosed facilities under appropriate biosecurity standards. Dotted duckweed is a small, floating exotic aquatic plant native to Australia and Southeast Asia that is distributed easily via multiple transport pathways, has a high growth and propagation rate, and is known to outcompete native plant species. Climate match analysis indicates it could survive and become established in public waters throughout most of Texas should it escape culture, and it is deemed likely to have potential to become particularly problematic in smaller water bodies because it forms dense mats capable of suppressing native plants and potential degradation of sportfish habitat. Dotted duckweed can be easily transported to new water bodies by waterfowl, watercraft, and aquarium dumping, presenting a high spread potential should it escape. Notwithstanding, based on careful consideration of biosecurity risks associated with the proposed activity and escapement risk mitigation feasibility, staff has determined that under appropriate biosecurity and monitoring provisions there is an acceptably minimal, though not zero, risk of escape.

        The amendment to §57.114, concerning Controlled Exotic Species Permit, would provide for the issuance of a commercial aquaculture facility permit for the possession, culture, sale, and transport of dotted duckweed.

        Proposed new §57.129, concerning Special Provisions — Dotted Duckweed, would establish facility and processing standards that specifically apply to the cultivation of dotted duckweed.

        Proposed new subsection (a)(1) would stipulate that the provisions of the proposed new section would be in addition to the minimum facility requirements already imposed by the subchapter, which is necessary to prevent confusion or misunderstanding. The proposed new section also would define the term “culture pond” as “any reservoir of water used as media for the cultivation and harvest of dotted duckweed in a facility permitted to do so under this subchapter,” which is necessary to provide an unambiguous meaning of that term for purposes of compliance, administration, and enforcement.

        Proposed new subsection (a)(2) would provide that the department will not issue a permit under the section for a facility located in a part of the state that is both south of SH 21 and east of I-35. The proposed provision is necessary because there is a significant portion of the state that regularly experiences, has experienced, or is at risk of experiencing inundation during hurricane events, which could result in escapement of dotted duckweed to surrounding aquatic systems. The department has determined that there is a significant enough potential threat to native species and systems to justify restricting the culture of dotted duckweed to areas of the state not likely to be affected by hurricane-related inundation events.

        Proposed new subsection (b) would set forth the requirements for water handling within facilities permitted to culture dotted duckweed to minimize escape risks. New subsection (b)(1) would prohibit the draining of any water from culture ponds unless it has been chemically treated in accordance with applicable law to kill all dotted duckweed that may be present. The provision is necessary, in concert with the provisions of proposed new subsection (b)(2), to ensure that water leaving any facility is free of viable dotted duckweed. Proposed new subsection (b)(2) would require all water leaving a facility to be passed through equipment that reduces plant material to a size of 100 micrometers or smaller (based upon seed size), which must be maintained to meet the regulatory standard at all times. The department has determined that the combination of chemical and physical treatments of culture media result in reasonable confidence that viable dotted duckweed will not escape from facilities where it is cultivated. Proposed new paragraph (b)(3) would explicitly state that it is an offense for any person to allow or cause culture pond water to drain into any ditch, storm drain, channel, conduit, stream, or other pathway that drains into or could drain into public water to provide reasonable confidence that viable dotted duckweed will not be spread to the environment. The department wishes to make absolutely and unmistakably clear that failure to contain dotted duckweed as a result of pond draining procedures is a crime.

        Proposed new subsection (c) would establish facility standards where dotted duckweed is authorized to be cultured. Proposed new subsection (c)(1) would require all facilities and infrastructure used for the culture, harvesting, and packaging of dotted duckweed to be completely enclosed within a permanent, department-approved structure. The provision is necessary to ensure that there is a physical barrier at all times between viable dotted duckweed and the external environment.  Proposed new subsection (c)(2) would require all points of entry or access to structures containing viable dotted duckweed to be kept closed except for immediate use for ingress or egress of personnel, equipment, or machinery. The provision is necessary to minimize, to the greatest extent practicable, the opportunity for waterfowl or other vectors to transport dotted duckweed from facilities to the external environment.

        Proposed new subsection (d) would prescribe best practices for the processing and transport of dotted duckweed. Proposed new subsection (d)(1) would stipulate that the processing of dotted duckweed occur only within permitted facilities, and reiterate that allowing dotted duckweed to leave a facility except as provided by rule is a criminal offense. The provision is necessary to make it abundantly clear that dotted duckweed cannot be removed or allowed to leave a facility except as specifically provided by rule.

        Proposed new subsection (d)(2) would prohibit the removal of dotted duckweed and any byproducts of the processing of dotted duckweed from a facility unless it has been passed through at least one department-approved mechanical device that reduces plant material to particles of a size no greater than 100 micrometers, and for all such equipment to be constantly maintained to achieve this standard. As noted previously in this preamble, the department has determined that physical treatment of organic material to render it non-viable is necessary to provide reasonable confidence that viable dotted duckweed will not be spread to the environment from facilities where it is cultivated.

        Proposed new subsection (d)(3) would specifically authorize the possession, transport, sale, and export of non-viable dotted duckweed remnants and plant material byproducts. The department has determined that upon satisfaction of the various provisions of the rules, there is no longer a need to regulate the possession of materials that are incapable of negative impacts to native ecosystems.

        Proposed new subsection (e) would require a permittee to ensure that all water and wastewater discharges at a facility are compliant with applicable rules of the Texas Commission on Environmental Quality, which is necessary because such requirements may differ from animal aquaculture wastewater discharge authorization requirements applicable to other permitted aquaculture facilities.

2. Fiscal Note.

        Robert Macdonald, Regulations Coordinator, has determined that for each of the first five years that the rules as proposed are in effect, there will be minimal fiscal implications to state or local governments as a result of administering or enforcing the rules. The department estimates that at least one controlled exotic species commercial aquaculture permit will be issued for dotted duckweed, resulting in first-year revenue to the department of $263. For each year after initial permit issuance, a permit may be renewed for one year at $74, three years at $168, or five years at $263, contingent upon compliance history.

        There will be no fiscal implications for other units of state or local government as a result of enforcing or administering the rules.

3. Public Benefit/Cost Note.

        Mr. Macdonald also has determined 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 adequate protection of public natural resources.

        There will be adverse economic effect on persons required to comply with the rules as proposed, which are addressed later in this preamble in the analysis of the effect of the rules on small business, microbusiness, and rural communities. As noted elsewhere in this preamble, the department is aware of one entity that would engage in the culture of dotted duckweed if the rules as proposed are adopted, and that entity already meets the requirements of the proposed rules; thus, the estimated adverse economic effects of the rules would apply only to future applicants, if there are any.

        (B) Under the 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, micro-businesses, or rural communities. As required by Government Code, §2006.002(g), the Office of the Attorney General has prepared guidelines to assist state agencies in determining a proposed rule’s potential adverse economic impact on small and microbusinesses and rural communities. Those guidelines state that an agency need only consider a proposed rule’s direct adverse economic impacts to determine if any further analysis is required. 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 is aware of one small business that would be engaged in the cultivation of dotted duckweed if the rules as proposed are adopted, namely, the petitioner. The rules as proposed would require the construction of some kind of permanent structure to house culture ponds and processing areas and require chemical and mechanical treatment of plant material and culture media. The entity that has petitioned the department is already culturing similar but non-prohibited species of aquatic plants in structures that would be compliant with the requirements of the proposed rules, using maceration equipment that also is compliant with the requirements of the proposed rules, and already possesses pesticides meeting the requirements of the proposed rule; thus, for the only small or microbusiness known or expected to be affected by the rules as proposed, there would be no direct adverse economic impacts or minimal adverse economic impacts. The department has no method of determining the future demand for permits to cultivate dotted duckweed; however, initial costs for prospective permittees would consist of approximately $3,000-$12,000 per greenhouse (enclosed structure), approximately $500 per macerator pump per facility or per greenhouse (dependent upon facility operational parameters); and approximately $500 for pesticides sufficient for one water draining event per year. The department notes that the rules do not stipulate specific construction materials or design elements for greenhouses, only that whatever structure is built must completely enclose all culture ponds and, in the determination of the department, function as a credible physical barrier between the culture ponds and the external environment; therefore, there is wide variability in possible structures and associated construction costs, ranging from simple hoop structures to more complex structures, as well a variety of materials, from hardened plastic or glass to wood or metal.

        The department has determined that the rules as proposed will not have any direct economic effect on any rural community.

        The department considered several alternatives to the rules as proposed.

        One alternative considered was to remove dotted duckweed from the list of exotic harmful or potentially harmful plants, which would allow the cultivation of dotted duckweed without regulatory oversight, including by aquarium hobbyists. This alternative was rejected because the department has an affirmative duty under the Parks and Wildlife Code to protect native systems and species from harmful exotic species and unregulated possession of dotted duckweed is highly likely to result in escape.

        One alternative was to do nothing and maintain status quo, leaving the possession and cultivation of dotted duckweed illegal. This alternative was rejected because the staff recommendation regarding the petition for rulemaking was to proceed to rulemaking.

        Another alternative was to prescribe more prescriptive facility requirements to absolutely and definitively preclude the possible escape of dotted duckweed. This alternative was rejected because staff has determined that the measures as proposed are believed to be an appropriate and sensible accommodation of the petitioner’s request while discharging the regulatory responsibilities of the department under the Parks and Wildlife Code.

        (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 an existing fee;

                 (5) not create or repeal an existing regulation, but will expand an existing regulation (by adding dotted duckweed to the list of species for which commercial culture is permitted);

                 (6) not increase or decrease the number of individuals subject to regulation; and

                 (7) not positively or adversely affect the state’s economy.

4. Request for Public Comment.

        Comments on the proposed rules may be submitted to Monica McGarrity, Senior Scientist for Aquatic Invasive Species, e-mail: monica.mcgarrity@tpwd.texas.gov. Comments also may be submitted via the department’s website at http://www.tpwd.texas.gov/business/feedback/public_comment/.

5. Statutory Authority.

        The amendments are proposed under the authority of Parks and Wildlife Code, §66.007, which authorizes the department to make rules necessary to authorize the import, possession, sale, or introduction of harmful or potentially harmful exotic fish.

        The proposed amendments affect Parks and Wildlife Code, Chapter 66.

6. Rule Text.

        §57.114. Controlled Exotic Species Permit.

                 (a) (No change.)

                 (b) Commercial Aquaculture Facility Permits.

                         (1) Controlled exotic species facility permits may be issued for commercial aquaculture, in accordance with the provisions of this subchapter, only for the following species:

                                  (A) – (C) (No change.)

                                  (D) Dotted duckweed — (Landoltia punctata) in compliance with the provisions of §57.129 of this title (relating to Special Provisions—Dotted Duckweed).

                         (2) (No change.)

                 (c) – (f) (No change.)

        §57.129. Special Provisions — Dotted Duckweed.

                 (a) General.

                         (1) In addition to the requirements of the provisions of §57.119 of this title (relating to Minimum Facility Requirements), the provisions of this section apply to facilities permitted to culture dotted duckweed under the provisions of this subchapter. For the purposes of this section, a culture pond is any reservoir of water used as media for the cultivation and harvest of dotted duckweed in a facility permitted to do so under this subchapter.

                         (2) The department will not approve a permit under this section for any facility located in a part of the state that is both south of State Highway 21 and east of I-35.

                 (b) Culture ponds.

                         (1) Water may not be drained from a culture pond until all dotted duckweed in the culture pond has been killed in accordance with applicable law by application of pesticides or other chemicals approved for aquatic use by the U.S. Environmental Protection Agency and Texas Department of Agriculture.

                         (2) No water from a culture pond may be allowed to exit a greenhouse or other such confinement structure unless all culture pond water and plant material have been passed through at least one macerator pump or similar department-approved mechanical device that reduces plant material to particles of a size no greater than 100 micrometers. All equipment required by this subparagraph shall be maintained to ensure the particle size limit established by this subparagraph is not exceeded at any time.

                         (3) It is an offense for any person to allow or cause culture pond water to drain into any ditch, storm drain, channel, conduit, stream, or other pathway that drains into or could drain into public water.

                 (c) Facility requirements.

                         (1) All culture ponds and harvesting equipment (including but not limited to conveyor belts, transport infrastructure, processing infrastructure, and all other equipment or infrastructure associated with culture, harvest, and  transport of dotted duckweed) within a facility shall be fully enclosed within a permanent, department-approved structure such as a greenhouse or other enclosure that the department determines is sufficient to prevent the escape of dotted duckweed.

                         (2) All doors and access points to greenhouses or structures used to enclose culture ponds and all access points to infrastructure used to transport dotted duckweed shall remain closed at all times except for purposes of immediate use for ingress or egress of personnel, equipment, or machinery.

                 (d) Processing requirements.

                         (1) Dotted duckweed may be processed only within a permitted aquaculture facility. Except as provided for drainwater under paragraph (1) of this subsection, it is an offense for any person to allow or cause dotted duckweed to leave a facility for any reason.

                         (2) No plant material, including dotted duckweed and any byproducts or remnants of processing operations, may be removed from the permitted facility for any reason unless it has been passed through at least one macerator pump or similar department-approved mechanical device that reduces plant material to particles of a size no greater than 100 micrometers. All equipment required by this subparagraph shall be maintained to ensure the particle size limit established by this subparagraph is not exceeded at any time.

                         (3) Dotted duckweed remnants and plant material byproducts that have been rendered non-viable in accordance with the provisions of subparagraph (B) of this paragraph may be possessed, transported, sold, or exported without a controlled exotic species permit.

                 (e) Wastewater discharge. A permittee shall ensure that all discharge of wastewater from a permitted facility occurs in compliance with all applicable regulatory requirements of the Texas Commission on Environmental Quality.

        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