Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 57.
FISHERIES
Subchapter K. AQUATIC VEGETATION MANAGEMENT
31 TAC §§57.930 - 57.936
The Texas Parks and Wildlife Department proposes new §§57.930-57.936,
concerning aquatic vegetation management. The new sections are necessary to
implement House Bill 3079, enacted by the 76th Legislature, which requires
the department to develop and adopt by rule a statewide aquatic vegetation
management plan. The overall goal of the rules is to inform and guide local
decisionmaking regarding aquatic vegetation management. The proposed rules
set out the elements of the statewide plan, including notice to public drinking
water providers about aquatic herbicide use. The rules envision that public
entities faced with specific decisions about aquatic vegetation in their water
bodies will consult a guidance document that TPWD will prepare and update.
The guidance document will contain detailed information about particular kinds
of aquatic vegetation, and will help decisionmakers judge the seriousness
of aquatic vegetation problems and choose proper control strategies. A copy
of the current draft of the guidance document may be obtained by contacting
Earl Chilton, Texas Parks and Wildlife Department, 4200 Smith School Road,
Austin, Texas, 78744, (512) 389-4652; e-mail: earl.chilton@tpwd.state.tx.us.
The proposed rules will allow development of local aquatic vegetation plans
that local entities can substitute for the statewide plan on individual water
bodies. By statute, local plans must be at least as stringent as the statewide
plan and must be approved by the Texas Natural Resource Conservation Commission
(TNRCC) and the Texas Department of Agriculture (TDA). Under the proposed
rules, TPWD will exercise continuing supervision of nuisance aquatic vegetation
control measures. All control measures to be undertaken must be submitted
to TPWD. TPWD can disapprove control measures proposed by entities operating
under the statewide plan. In all cases, TPWD expects to consult with and advise
local governing entities about the best choices available.
Mr. Robin Riechers, staff economist, has determined that for the first
five years the rules are in effect, there will be no fiscal implications to
state or local governments.
Mr. Riechers also has determined that for each of the first five years
the new rules are in effect, the public benefit anticipated as a result of
the new rules as proposed will be an increased ability of public authorities
responsible for public water bodies to make better decisions about aquatic
vegetation, with the assistance and review of TPWD. The expected result will
be better aquatic vegetation management with consideration of effects on aquatic
resources and public water supplies.
There will be no effect on small businesses, microbusinesses, or persons
required to comply with the rules as proposed.
The department has not filed a local impact statement with the Texas Employment
Commission as required by Government Code, §2001.022, as the agency has
determined that the rules as proposed will not affect local economies.
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 new rules.
Comments on the proposed new rules may be submitted to Robert Sweeney,
Texas Parks and Wildlife Department, 4200 Smith School Road, Austin, Texas,
78744; (512) 389-4433. To be considered, comments should be received no later
than 5:00 p.m. on Friday, September 5, 2000. A public meeting to receive oral
comments will be held on Wednesday, September 6, 2000 at 9:00 a.m., at Texas
Parks and Wildlife Headquarters, 4200 Smith School Road, Austin, Texas, 78744.
The new rules are proposed under Parks and Wildlife Code, §11.082(a),
which requires the department to develop and by rule adopt a state aquatic
vegetation management plan.
The proposed rules affect Texas Parks and Wildlife Code, Chapter 11, Subchapter
G, and Texas Water Code, Chapter 15.
§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 chapter shall have the meanings assigned
in the Texas Parks and Wildlife Code.
(1)
Nuisance aquatic vegetation--any non-native or native plant
species that are determined in department guidance to cause unacceptable levels
of pest damage to a public body of surface water.
(2)
Department or TPWD--the Texas Parks and Wildlife Department.
(3)
EPA--the United States Environmental Protection Agency.
(4)
Governing entity--the state agency or other political subdivision
with jurisdiction over a public body of surface water.
(5)
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)
Licensed Applicator--a person who holds a valid license
for aquatic herbicide application from the Texas Department of Agriculture.
(7)
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)
MCL--maximum contaminant level.
(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.
(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 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).
(12)
TDA--the Texas Department of Agriculture.
(13)
TNRCC--the Texas Natural Resource Conservation Commission.
(14)
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.
(a)
All measures a person undertakes to control nuisance aquatic
vegetation shall be consistent with the principles of integrated pest management
as described in a guidance document prepared by the department. The department
will update the guidance document as necessary. In addition to describing
measures to control nuisance aquatic vegetation, the guidance document will
discuss experimental enhancement of beneficial aquatic vegetation and measures
to prevent nuisance aquatic vegetation from becoming established. The guidance
document will encourage governing entities to educate the public about aquatic
vegetation.
(b)
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.
(c)
All persons intending to apply an aquatic herbicide shall
provide written notice to the governing entity, TPWD, and 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, no later than the
14th day before the application is to occur. The notice shall include:
(1)
the dates of the proposed application;
(2)
all label information for the aquatic herbicide to be applied;
(3)
a statement that the department's guidance document has
been reviewed and the proposed herbicide application is consistent with the
principles of integrated pest management as described in that document;
(4)
information demonstrating that the proposed application
will not result in exceeding:
(A)
the maximum contaminant level of the herbicide in finished
drinking water as set by the TNRCC and the EPA; or
(B)
if the aquatic herbicide does not have an MCL established
by the TNRCC and the EPA, the maximum label rate; and
(5)
TDA applicator license number, if any.
(d)
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 (c) of this section,
that the application will be consistent with the state plan, where the state
plan governs. 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.
(e)
An individual who is a licensed applicator may apply aquatic
herbicide after notice consistent with subsection (c) 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.
(f)
After receiving notice of a proposed application of aquatic
herbicide, a governing entity, or TPWD in the absence of such an entity, shall:
(1)
provide the individual proposing the application with the
state plan and TPWD guidance document;
(2)
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
(3)
determine whether the proposed application is consistent
with the plan.
(g)
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.
(h)
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.
(i)
Any application of aquatic herbicide shall comply with
label rates approved by the EPA.
(j)
The notice and approval requirements in subsections (c)-(g)
of this section are in addition to and not in place of the requirements of §57.935
of this title (relating to Review by the Department).
§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. Where appropriate, TPWD will recommend that local plans include
studies, prevention methods, and educational measures to enhance beneficial
aquatic vegetation and better control nuisance aquatic vegetation.
(b)
Proposed local plans shall be submitted to TNRCC, TPWD,
and TDA on a form prepared by the department.
§57.935.Review by the Department.
(a)
Prior to undertaking any measures to control nuisance aquatic
vegetation, a person operating under the state plan shall provide to the department
a description of the measures to be undertaken, on a form created by the department,
no later than the 14th day before the measures are to begin. The department
will review and may disapprove or amend any proposed measures to control nuisance
aquatic vegetation. Where appropriate, TPWD will provide technical advice
and recommendations regarding prevention of nuisance aquatic vegetation problems.
The person proposing the control measures shall have the burden of demonstrating
compliance with the state plan.
(b)
Persons operating under local plans shall notify the department
of all measures to be undertaken to control nuisance aquatic vegetation no
later than the 14th day before the measures are to begin.
§57.936.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 proposed control measures submitted to
TPWD, all notices received and provided, all control measures taken, and any
other information relevant to a particular individual request for shoreline
treatment.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State, on July 7, 2000.
TRD-200004731
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Earliest possible date of adoption: August 20, 2000
For further information, please call: (512) 389-4775
Subchapter G. THREATENED AND ENDANGERED NONGAME SPECIES
The Texas Parks and Wildlife Department proposes the repeal of §§65.171-65.174,
65.180, and 65.181, and new §§65.171-65.176, concerning Threatened
and Endangered Species. The repeals and new sections are necessary to reorganize
existing provisions, eliminate regulatory inconsistency with respect to threatened
and endangered species, to provide for documentation of lawfully held specimens,
to remove unnecessary and redundant regulations, and to modify the lists of
threatened and endangered species to reflect listing actions taken by the
federal government and the executive director concerning the jaguar, the Arkansas
River shiner, the Concho water snake, and the Cagle's map turtle. The repeals
and new sections will function to provide uniform regulations governing the
possession of threatened and endangered species, set forth identification
standards, and establish penalties for violations.
Robert Macdonald, Wildlife Division Regulations Coordinator, has determined
that for each of the first five years that the proposed repeals and new sections
are in effect, there will be no fiscal implications to state or local governments
as a result of enforcing or administering the proposed rules.
Mr. Macdonald also has determined that for each of the first five years
the proposed repeals and new sections are in effect, the public benefit anticipated
as a result of enforcing the rules as proposed will be simpler regulations
that are less burdensome to the public while executing the commission's statutory
obligations to manage the wildlife resources of this state.
There will be no adverse economic effect on microbusinesses or small businesses.
There are no economic costs to persons required to comply with the rules as
proposed.
The department has not filed a local impact statement with the Texas Workforce
Commission as required by Government Code, §2001.022, as this agency
has determined that the rules as proposed will not impact local economies.
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.
Comments on the proposed rules may be submitted to John Herron, Texas Parks
and Wildlife Department, 4200 Smith School Road, Austin, Texas, 78744; (512)
389-4771 or 1-800-792-1112.
Chapter 65.
WILDLIFE