Introduction of Fish, Shellfish and Aquatic Plants – Update to Aquatic Plant Definition

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INTRODUCTION FISH, SHELLFISH, AND AQUATIC PLANTS

PROPOSAL PREAMBLE

1. Introduction.

        The Texas Parks and Wildlife Department proposes amendments to 31 TAC §57.251 and §57.252, concerning Introduction of Fish, Shellfish, and Aquatic Plants. The proposed rules would function in concert to explicitly acknowledge that macroalgae, as well as plants that reproduce only by spores or fragmentation and emergent aquatic plants, are included in the applicability of department rules governing the introduction of aquatic plants in public waters.

        Under Parks and Wildlife Code, §12.015, the department is required to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state. Under Parks and Wildlife Code, §66.015, the department is required to adopt rules governing the issuance of permits for the introduction of fish, shellfish, and aquatic plants into public waters and stipulates that no person may place any species of fish, shellfish, or aquatic plant into the public water of the state without a permit issued by the department. Under Agriculture Code, §134.005, the department is required to adopt rules to carry out its duties under that chapter with respect to the regulation of aquaculture.

        The department has recently been approached by external parties interested in conducting introductions of marine macroalgae in public water for research purposes related to potential for aquaculture. In evaluating these inquiries, the department has identified what could be interpreted as a lacuna in the applicability of rules under which the department may authorize the introduction of aquatic plants, specifically, the sufficiency of the current regulatory definition of “aquatic plant” with respect to classes of aquatic plants such as macroalgae (and, in addition, plants that reproduce by means other than seeds, and emergent aquatic plants). The current definition has been in effect since the late 1970s and the department has determined that it should be restated to reflect the current status of botanical understanding of aquatic plants and clearly include macroalgae. The department has determined that any macroalgae introductions have the potential to adversely impact habitats and create user conflict and because oversight of such activities is necessary and warranted to protect native organisms and ecosystems, the definition should be amended to introduce greater clarity. The department emphasizes that if a prospective introduction to public water of any species is determined by the department to be problematic, it will not be authorized.

        On this basis, the proposed amendment to §57.251, concerning Definitions, would replace the current definition with a new definition that more completely encompasses the variety of aquatic plants to which the rules apply.

        The proposed amendment to §57.252, concerning General Provisions, would provide for department waiver of permit requirements for introductions coordinated with or conducted under the direction of the department for purposes of mitigation or restoration (or any other environmentally beneficial reason). In cases such as the aftermath of major storms, flood events, or environmental incidents, restoration efforts can be large and concentrated. The department seeks to facilitate the rapid recovery of ecosystems in such cases and reasons that waiver of permit requirements, in the presence of department coordination or direction is sensible.

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, consisting of revenue lost as a result of the waiver of permit fees, which cannot be anticipated and therefore cannot be quantified.

        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 accurate regulations and the resultant protection of public natural resources.

        There will be no adverse economic effect on persons required to comply with the rules as proposed.

        (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 has determined that because the rules as proposed clarify the applicability of existing regulations, they do not directly affect any small business or microbusiness.

        The department has determined that the rules as proposed will not affect rural communities, as the rules do not directly regulate any rural community.

        (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, repeal, or expand an existing regulation;

                 (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 Parks and Wildlife Code, §12.015, which requires the department to regulate the introduction and stocking of fish, shellfish, and aquatic plants into the public water of the state; §66.015(c), which requires the department to establish rules related to the issuance of permits for the introduction of fish, shellfish, or aquatic plants into the public water of the state; and Agriculture Code, §134.005, which requires the commission to adopt rules necessary to carry out its responsibilities under that chapter to regulate aquaculture.

        The proposed amendments affect Parks and Wildlife Code, Chapters 12 and 66, and Agriculture Code, Chapter 134.

6. Rule Text.

        §57.251. Definitions. The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.

                 (1) (No change.)

                 (2) Aquatic plant — All plants (vascular or non-vascular) that grow either partially or totally submerged in water or in the substrate of a body of water, including freshwater macroalgae of genus Chara (muskgrass) or Nitella (stoneworts), and all marine macroalgae (seaweeds). [All plants whose seeds germinate in either the water phase or the substrate of a body of water and which must spend part of the life cycle in water (Reid, G.K., and R.O. Wood 1976, Ecology of Inland Waters and Estuaries)].

                 (3) – (11) (No change.)

        §57.252. General Provisions.

                 (a) – (i) (No change.)

                 (j) The department may waive the permit requirements of this subchapter for restoration or mitigation activities or other beneficial environmental purpose conducted in coordination with or at the direction of the department. 

        This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be withing the agency’s authority to adopt.

        Issued in Austin, Texas, on