Part 2.
TEXAS PARKS AND WILDLIFE DEPARTMENT
Chapter 57.
FISHERIES
Subchapter L. AQUATIC VEGETATION MANAGEMENT
31 TAC §§57.930 - 57.934, 57.936
The Texas Parks and Wildlife Commission adopts new §§57.930-57.934
and 57.936, concerning the statewide aquatic vegetation management plan. Sections
57.930, 57.932, 57.934, and 57.936 are adopted with changes to the proposed
text as published in the July 21, 2000, issue of the
Texas Register
(25 TexReg 6937). Section 57.931 and §57.933 are
adopted without changes to the proposed text and will not be republished.
Section 57.930 has been changed, in response to a comment, to exclude "water
being transported in a canal from the definition of "public body of surface
water." A definition of "canal" has been added as §57.930(1). This change
clarifies that the rules do not apply to canals that are transporting water
solely for agricultural or industrial purposes.
The definition of "nuisance aquatic vegetation" in §57.930(8) has
been clarified and now applies to vascular plants only. One commenter asked
whether the rules were intended to apply to use of algaecides. The rules are
not intended to apply to algae control. The definition of "nuisance aquatic
vegetation" has also been changed, in response to a comment, to focus on potential
for interference with water body uses. This change better reflects what "integrated
pest management" means in the aquatic vegetation context.
A definition of "treatment proposal" has been added as §57.930(15).
This change clarifies that a "treatment proposal" differs from a "local plan".
The rules envision that persons operating under the state plan will submit
treatment proposals to TPW that describe actions planned to address one or
more nuisance aquatic vegetation problems. Treatment proposals are subject
to review and approval by TPW as provided in §57.932(a)(3). A treatment
proposal may propose a one-time treatment event, or a series of treatment
events over several months. The guidance document will contain a form for
submittal of treatment proposals. The form will ask for specific information
about the type of nuisance aquatic vegetation problem faced (e.g. hydrilla)
and the proposed treatment method (e.g. mechanical harvester).
By contrast, the purpose of a local plan is to transfer to a governing
entity TPW's authority to oversee nuisance aquatic vegetation control on the
public bodies of surface water that the local plan covers. Local plans must
be approved by TNRCC, TDA, and TPW, as provided in §57.934. Where a local
plan governs, treatment proposals are not subject to TPW approval. Local plans
may or may not address specific nuisance aquatic vegetation problems and treatment
alternatives. The law requires that the local plan be at least as stringent
as the state plan. Section 57.932 has been changed, in response to comments,
to add a "Purpose" statement in §57.932(a)(1). Section 57.932 has also
been changed, in response to comments, to add "Standards" in §57.932(a)(2)
that will govern the content of TPW guidance regarding nuisance aquatic vegetation.
Section 57.932(a)(3), "Modification of Guidance", has been added, in response
to comments, to set out a procedure for public notification when changes to
the TPW guidance document are anticipated. Section 57.932(a)(4) contains the
substance of what was §57.935 in the proposal. This section was moved
to keep all notice requirements for treatment proposals under the state plan
in the same section of the rules. Section 57.932 has been renumbered to reflect
these changes. Some clarifying language has been added to §57.932 to
reflect, as HB 3079 intends, that where a local plan has been adopted and
approved, herbicide application must be done in accordance with the local
plan. Where no local plan has been adopted and approved, the state plan applies,
and herbicide application must be done in accordance with the state plan.
An adopted and approved local plan supersedes the requirements of §57.932.
Section 57.934 has been expanded, in response to comments, to provide more
detail regarding the content of local plans and the process for local plan
approvals. Section 57.936, regarding recordkeeping, has been changed, in response
to a comment, to clarify that records to be kept include date, place, location,
type, and amount of all aquatic herbicide applications.
House Bill 3079 of the 76th Legislature requires TPW to "develop and by
rule adopt a state aquatic vegetation management plan following the generally
accepted principles of integrated pest management". According to HB 3079,
the state plan must: (1) establish minimum standards for a governing entity
that regulates a public body of surface water; (2) require that any application
of aquatic herbicide comply with label rates approved by the U.S. EPA; (3)
ensure that any public drinking water provider that has an intake within two
river miles of a site at which an application of aquatic herbicide is proposed
to occur receives notice of the proposed application not later than the 14th
day before the application is to occur; (4) provide for the coordination,
oversight, public notification, and enforcement of all aquatic herbicide use
to protect state fish and wildlife resources and habitat and to prevent unreasonable
risk from the use of any aquatic herbicide; and (5) require that the written
notice of a proposed application of herbicide include information demonstrating
that the proposed application of herbicide under a plan will not result in
exceeding the maximum contaminant level of the herbicide in finished drinking
water as set by the TNRCC and EPA, or the maximum label rate, if the aquatic
herbicide does not have an established maximum contaminant level.
The adopted rule incorporates the specific requirements of the statute
regarding aquatic herbicide use. To implement the more general requirements
of the statute, the rule envisions that TPW will create a guidance document
that will help governing entities make decisions to manage nuisance aquatic
vegetation consistent with the principles of integrated pest management.
Public bodies of surface water in Texas have many different characteristics,
for example, depth, surface area, temperature, flow, shoreline, climate, wildlife,
clarity, chemistry, and connection to other water bodies. Uses differ as well,
and may include drinking water use, industrial use, agricultural use, recreational
use, navigational use, and wildlife habitat use. There are a number of known
species of nuisance aquatic vegetation that pose a variety of threats, including
hydrilla, salvinia, waterhyacinth, Eurasian watermilfoil, waterlettuce, and
alligatorweed. Strategies for prevention of nuisance aquatic vegetation problems
include prevention of excess nutrient loading, prevention of habitat disturbance,
and establishment of native aquatic vegetation. Options for controlling established
nuisance aquatic vegetation include mechanical methods, such as harvesters,
shredders, drawdowns, booms, bottom barriers, shading, and hand removal; biological
methods, such as grass carp and alligatorweed flea beetles; chemical controls,
such as 2,4-D; chelated copper; diquat; endothall; flouridone; and glyphosate.
There are also experimental control options.
The guidance document will contain the level of detail necessary to guide
governing entities through the available management choices, in light of the
diversity of water body characteristics, water body uses, aquatic vegetation
problems, and control options. The guidance document establishes a process
for evaluating the situation and choosing the appropriate management strategy,
rather than mandating any one solution. Management through the guidance document
allows TPW greater flexibility to change management approaches, based for
example on new scientific developments, without going through the more time-consuming
rulemaking process. As §57.932(a)(3) provides, proposed changes to the
guidance document will be publicly noticed so that interested persons can
be aware of what revisions are being proposed and can have an opportunity
to comment.
The standards set forth in §57.932(a)(2) reflect TPW's overall principles
regarding nuisance aquatic vegetation management in Texas. The standards govern
the content of the guidance document, without mandating specific solutions
on specific water bodies.
Section 57.932(a)(3) has been added in response to comments that expressed
concern about the possibility of changes being made to the guidance document
that might be unknown to governing entities or other interested persons. This
concern is addressed by creating a procedure for notice and public comment
that must precede guidance document changes.
TPW review, pursuant to §57.932(a)(4), of treatment proposals is intended
to assure that these standards are being followed when management strategies
are proposed. This review extends beyond herbicide use so that TPW can apply
the principles of integrated pest management to all proposed control measures,
consistent with HB 3079.
Subsection 57.932(b) specifically applies to use of aquatic herbicides
to control nuisance aquatic vegetation. The substantive requirements in this
subsection closely follow the statutory requirements for aquatic herbicide
use set forth in HB 3079, except that a public notification requirement has
been added that implements HB 3079, §1 (Parks and Wildlife Code §11.082(c)(4)).
Sections 57.933 and 57.934 address local plans for aquatic vegetation control.
Section 57.933 implements Parks and Wildlife Code §11.083. Section 57.934
sets out procedures for local plan approval. In response to comments, these
procedures have been described in more detail than in the proposed rule. A
public participation requirement has been added as well as deadlines for agency
responses to local plan submittals.
Section 57.936 has been modified in response to comments to add a specific
requirement for recordkeeping regarding aquatic herbicide applications.
Groups and associations supporting the rule included the City of Austin,
the Guadalupe/Blanco River Authority, the Texas Aquacultural Association,
and the Texas Agricultural Industries Association. The City of San Angelo
opposed the rule.
The department received 31 comments concerning adoption of the proposed
rules. Eight individuals, including Representatives Kip Averitt and Jim Dunnam,
and the City of Hallsburg commented regarding hydrilla coverage at Tradinghouse
Creek Reservoir. A Waco-area newspaper ran an article that included a statement
(not made by TPW) that TPW would not support action to control hydrilla until
30% lake surface coverage was reached. The commenters advocated a 10% standard,
believing that 30% coverage would interfere with swimming, water skiing, and
other lake uses. TPW responds that the rules adopted do not set any percentage
standard for action on a particular lake. Instead, all nuisance aquatic vegetation
problems will be evaluated for each individual public body of surface water,
and appropriate measures will be chosen based on the uses of the water body
and the nature of the problem. No changes were made as a result of the comments.
One individual commented in favor of mechanical control of water hyacinth
in Caddo Lake, and noted that the moss and lily pads were heavy. This comment
did not propose any changes to proposed rules. TPW intends to continue supporting
appropriate management of aquatic vegetation on Caddo Lake, consistent with
the rules and guidance document.
One individual commented in favor of restricting chemical controls to the
utmost level possible, and supported investigating importation of manatees
from Florida to control aquatic vegetation. TPW does not believe that manatees
are a practical solution to nuisance aquatic vegetation problems in Texas.
Chemical control measures are an available tool under the rules and guidance
document if used in a manner consistent with the principles of integrated
pest management. No change to the rules was made based on this comment.
The City of Mesquite commented regarding its practices when using algaecides
in its ponds and lakes. The rules are not intended to deal with use of algaecides,
accordingly, the definition of nuisance aquatic vegetation in §57.930(8)
has been changed to clarify that the rules apply to vascular plants.
Guadalupe-Blanco River Authority commented in general support of the rules,
and requested that TPWD remain active and involved in nuisance aquatic vegetation
management, beyond review of treatment proposals and local plans.
LCRA requested that "public body of surface water" be defined to include
"water being transported in a canal", and that a definition of canal be added.
The rule was changed accordingly.
One individual commented that some non-native aquatic vegetation, such
as hydrilla, has desirable attributes for aquatic life in some water bodies,
while other species, such as water hyacinth and giant salvinia, have no redeeming
features and should be totally eliminated. TPW believes that the guidance
document will allow the flexibility to deal with specific aquatic vegetation
issues on specific bodies of surface water, taking into account the uses of
the water body and the type of vegetation present. This commenter's concerns
should be addressed during the decision-making process that governing entities
and TPW will go through in evaluating individual aquatic vegetation situations.
No changes were made based on this comment.
Novartis Crop Protection proposed five changes: 1. An emergency provision
for pesticide use. TPW disagrees with this proposed change, on the basis that
the herbicide provisions in the rules are closely modeled on the language
of HB 3079, which does not authorize an emergency exception. 2. A due process
provision with an opportunity to appeal if a treatment proposal is denied.
TPW disagrees with this comment. This would, in TPW's view, amount to a contested
case hearing process for treatment proposals, which could require additional
staff resources and create delays. 3. A requirement that local entities show
a minimum level of expertise in the implementation of the state plan or their
own approved plan. TPW disagrees with this comment. TPW will certainly consult
with governing entities on how best to implement treatment proposals and local
plans, however, evaluating the expertise of governing entities would be impractical
and resource-intensive. 4. A requirement that local plans be adopted into
the state rules if they are more stringent than the state plan with regard
to pesticide application to avoid federal preemption. TPW disagrees with this
comment. HB 3079 does not require this, and this would encumber adoption of
local plans. If a local plan does propose more stringent controls on pesticide
use than federal or state regulation requires, it may be necessary for the
governing entity to work with TDA and EPA to change pesticide labels in order
to avoid a preemption problem. This is outside TPW's jurisdiction. In any
event, it is unclear that adoption of the local plan as a TPW rule would avoid
the federal preemption problem. 5. Require that a public meeting regarding
a local plan be held by a state agency or the governing entity. TPW agrees
that a state agency should hold this meeting, and this change to the rules
has been made.
One individual advocated keeping hydrilla out of Texas lakes. No change
was made based on this comment.
The San Jacinto River Authority (SJRA) commented regarding the fiscal note,
and stated that SJRA spent $50,000 on water hyacinth control last year and
over $46,000 so far this year. TPW responds that the fiscal note is intended
to predict the fiscal effect that the rules are expected to have on state
and local governments, not the fiscal effect of nuisance aquatic vegetation
problems. TPW agrees that nuisance aquatic vegetation can be expensive to
treat, however, these costs would exist whether or not these rules were adopted.
Overall, TPW believes that the rules will help state and local governments
save money by guiding the choice of the safest and most economical treatment
alternatives. No change was made based on this comment. SJRA also commented
requesting clarification whether local plans could prohibit herbicide applications
by non-licensed applicators. TPW believes that a local plan that proposed
to prohibit such applications would be approvable by TPW because it would
be more stringent than the state plan. To make such a prohibition fully effective,
however, it might be necessary for the governing entity to work with TDA and
EPA to change pesticide labels and thereby avoid a federal preemption problem.
No change was made based on this comment.
The Sabine River Authority (SRA) commented as follows: 1. The lack of a
liability cap and funding creates practical problems for nuisance aquatic
vegetation control. TPW responds that these are issues for the Legislature.
No change was made based on this comment. 2. SRA disagrees with proposals
to include more of the guidance document into the rules. Overall, TPW agrees
with this comment. No change was made based on this comment. 3. Where no governing
entity controls a public body of surface water, the rules should make TPW
responsible for aquatic vegetation management activities. TPW responds that
under the state plan, TPW is responsible for review of treatment proposals.
TPW, TNRCC, and TDA are responsible for review of local plans. HB 3079 does
not charge TPW with a duty to take control measures on bodies of surface water,
nor does it provide resources to do so. Accordingly, while TPW will exercise
its authority over exotic species as provided by statute and rule, TPW disagrees
with this comment and no change is made to the rules. 4. The rules should
explicitly limit control measures that could cause the spread of nuisance
aquatic vegetation, for example, use of mechanical harvesters that could result
in downstream infestation from release of viable plant fragments. TPW responds
that it will consider this issue in its review of treatment proposals and
local plans. No change was made based on this comment. 5. SRA made a number
of comments regarding the guidance document, which are being considered for
inclusion in that document as appropriate.
The City of San Angelo opposed the rules. In particular, the City objected
that: 1. The City will have to staff and finance the administration of a state
program. TPW disagrees. The rules do not impose a mandate on local governments
to address nuisance aquatic vegetation. Instead, the rules say that if a local
government intends to treat nuisance aquatic vegetation, it must do so consistent
with a state plan so that the most effective, economical means are chosen
and hazards are minimized. The rules provide a mechanism for transmitting
TPW's expertise into local government decisions. This allows local governments
to take advantage of state resources, which should benefit local governments
rather than imposing additional costs. No change was made based on this comment.
2. Herbicide regulation is already done by another state agency and the rule
duplicates that effort. TPW responds that the Legislature, through HB 3079,
determined that TPW should develop the overall state plan, in consultation
with TDA and TNRCC. TPW believes that herbicides are one tool that can be
used to control nuisance aquatic vegetation, however, herbicides may not be
the appropriate tool in a certain case when all factors are considered, even
though federal and state regulation might allow herbicide use. HB 3079, as
implemented through these rules, encourages governing entities to address
the underlying causes of their problems and arrive at comprehensive solutions
consistent with the principles of integrated pest management. These objectives
go beyond ensuring the safe use of herbicides. No change was made based on
this comment.
SMART (Sensible Management of Aquatic Resources Team), Texas Clean Water
Action, and the Texas Center for Policy Studies, supported by the Lone Star
Chapter of the Sierra Club, recommended changes to the proposed rules as follows:
1. Revise the definition of nuisance aquatic vegetation. TPW agrees with this
comment and the rule is changed accordingly. 2. Add a section requiring that
all applications of aquatic herbicide be consistent with the state plan. TPW
believes that this proposed section would duplicate existing provisions of
the rules and the statute, in particular §57.932(b)(1) of the rules and §11.084(a)
of the statute, accordingly, no change is made in response to this comment.
3. Inclusion of aquatic vegetation management principles. TPW generally agrees
with this comment and has accordingly revised §57.932(a). TPW does not
agree with all of the specific principles advanced in the comment, particularly
the preference for nonchemical control measures and the preference for least
toxic chemicals if chemical measures are the only alternative. The preference
for nonchemical control measures may be, in an individual case, inconsistent
with the principles of integrated pest management, and may lead to inappropriate
use of nonchemical measures, such as grass carp. While TPW agrees that less
toxic chemicals are preferable, TPW does not have the expertise to judge the
relative toxicity of EPA- and TDA-approved chemicals, and believes that this
issue should be addressed through herbicide labeling. 4. Requirement of water
body classification. TPW has included a description of the "Tier" system in
the rules, in response to this comment, however, the rules make clear that
the Tier system is a component of the guidance document that can be changed
or eliminated within that document if a superior system is found. The comment
also proposes that TPW make the initial Tier determination and treatment proposal,
rather than the governing entity. TPW believes that this change would require
a significant resource commitment, and accordingly disagrees. 5. More detail
regarding the requirements for local plan approval. Overall, TPW agrees with
this comment, and the rule has been changed accordingly. 6. Enhancement of
recordkeeping requirements. TPW agrees with this comment and the rule has
been changed accordingly. 7. Procedures and notice for guidance document modification.
TPW agrees with this comment and the rule has been changed accordingly.
The City of Tyler commented as follows: 1. The meaning and intent of the
proposed rules is vague and generic. TPW responds that a number of changes
have been made to clarify the rules. 2. Tyler asks whether the rule applies
strictly to aquatic elevation or whether it includes the application of herbicides
to the shoreline above pool elevation. TPW responds that the statute uses
the term "in a public body of surface water". 3. Clarification is requested
regarding the 14-day notice requirement. Simply stated, under the state plan,
TPW must be notified of all treatment proposals no later than the 14th day
before the control measures are to begin. Where the treatment proposal includes
use of aquatic herbicides, a number of additional requirements apply, as listed
in §57.932(b). These include 14-day notice to the governing entity and
certain public drinking water providers, as well as TPW. 4. The comment asks
whether there is a list of aquatic herbicides that are acceptable for use
in a drinking water supply. TPW responds that the guidance document identifies
aquatic herbicides that are usable on certain species of nuisance aquatic
vegetation, and the herbicide label should be consulted regarding restrictions
on use in drinking water supplies. 5. The comment asks whether a local plan
can prohibit the application of aquatic herbicide by individual property owners
around a drinking water supply. TPW believes that a local plan that proposed
to prohibit such application would be approvable by TPW because it would be
more stringent than the state plan. To make such a prohibition fully effective,
however, it might be necessary for the governing entity to work with TDA and
EPA to change pesticide labels and thereby avoid a federal preemption problem.
No changes other than clarifications were made based on the City of Tyler's
comments.
The City of Wichita Falls expressed several concerns. 1. The City is concerned
about reliance on a guidance document whose content is unknown and may change.
TPW responds that the rules have been changed to establish a public procedure
for changing the guidance document. The initial version of the guidance document
will be finalized before the rules become effective. 2. The City expressed
concern over whether chemicals used for water treatment and algae control
will be regulated by these rules. TPW responds that the rule has been clarified
and applies only to measures used to control vascular plants, not to water
treatment chemicals or algae control chemicals. 3. The City questions why
the notice requirement for public drinking water providers applies to upstream
as well as downstream intakes. TPW responds that HB 3079 uses the term "within
two river miles", not differentiating between upstream and downstream intakes.
In some lakes, moreover, the currents may vary with conditions such as rainfall
and releases. No changes were made based on this comment.
One individual commented in favor of aggressive control of "water weeds".
No change was made based on this comment.
One individual requested that the scope of the rules include drainage areas
and areas under the direct influence of a related water table. TPW responds
that the scope of HB 3079 is public bodies of surface water. No change was
made based on this comment.
One individual commented in favor of compassion for all of the earth's
creatures. No change was made based on this comment.
One individual commented that approved aquatic herbicides are potentially
the safest, most efficacious and cost-effective treatment, and questions whether
herbicide opponents would give up outboard motors that have MTBE, gasoline,
and benzene emissions. This individual also made comments regarding the guidance
document. No change was made based on this comment.
The new rules are adopted under Parks and Wildlife Code, §11.082(a),
which requires the department to develop and by rule adopt a state aquatic
vegetation management plan.
§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)
Canal--an artificial waterway used for the transportation
of water for agricultural and/or industrial purposes but for no other purpose.
(2)
EPA--the United States Environmental Protection Agency.
(3)
Governing entity--the state agency or other political subdivision
with jurisdiction over a public body of surface water.
(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.
(5)
Licensed Applicator--a person who holds a valid license
for aquatic herbicide application from the Texas Department of Agriculture.
(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).
(7)
MCL--maximum contaminant level.
(8)
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.
(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 or water being transported in
a canal.
(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)
TPWD--the Texas Parks and Wildlife Department.
(15)
Treatment proposal--a submission to TPWD on a TPWD-approved
form that describes intended measures to control nuisance aquatic vegetation.
(16)
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)
Purpose. The purpose of the state aquatic vegetation plan
is to provide for the coordination, oversight, guidance and where applicable
public notice and enforcement of all activities related to the management
of nuisance aquatic vegetation on public bodies of surface water. This includes,
but is not limited to, coordination, oversight, public notification and enforcement
of all aquatic herbicide use to protect state fish and wildlife resources
and habitat and to prevent unreasonable risk from the use of any aquatic herbicide.
(2)
Standards. All measures that a person undertakes to control
nuisance aquatic vegetation shall be consistent with the principles of integrated
pest management as defined in §57.930 of this title (relating to Definitions).
A guidance document prepared by TPWD will describe measures to control nuisance
aquatic vegetation, and the minimum standards applicable to governing entities
that regulate a public body of surface water and persons who propose to treat
nuisance aquatic vegetation. The guidance document will include:
(A)
Encouragement of the growth and, where lacking, establishment
of native aquatic vegetation that provides habitat for fish, the food chain
that supports desirable fish populations, other desirable aquatic organisms
and wildlife without interfering with reasonable recreational use, navigation,
drinking water supply, flow of water to power plants, industrial use, irrigation,
or other beneficial uses;
(B)
Encouragement of efforts to address the root causes supporting
the overgrowth of nuisance aquatic vegetation;
(C)
Support for continued monitoring and assessment activities
to identify new nuisance aquatic vegetation species and act appropriately
to eliminate or minimize ecological impacts;
(D)
Support for continued research and evaluation of vegetation
control methods that will cause the least possible hazard to persons, property
and the environment as required by application of integrated pest management
principles;
(E)
Encouragement of public input in decision-making processes;
(F)
Encouragement of ongoing education and outreach efforts
as to the importance of managing aquatic vegetation to assure the ecological
health of public waters;
(G)
Information to guide individuals wishing to treat nuisance
aquatic vegetation; and
(H)
Criteria for choosing management responses to nuisance
aquatic vegetation problems based on the uses of the water body and the nature
of the problem. These criteria may take the form of a three-tier system: Tier
I, which calls for immediate response and eradication; Tier II, which calls
for ongoing control where nuisance aquatic vegetation is well-established;
and Tier III, which calls for monitoring and a contingency plan in case the
problem worsens. The three-tier system is subject to change as provided in
paragraph (3) of this subsection.
(3)
Modification of Guidance. TPWD will publish notice in the
Texas Register and seek input from interested parties when it proposes to
modify the guidance document. TPWD will also mail notice to persons who so
request. Notice shall be provided at least 60 days prior to the effective
date of any changes to the guidance document. The notice shall describe the
proposed modifications and the reasons for the modifications, and how comments
on the proposed modifications may be made to TPWD.
(4)
Review by TPWD. Prior to undertaking any measures to control
nuisance aquatic vegetation, a person operating under the state plan 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.
(b)
Additional Requirements Applicable to the Use of Aquatic
Herbicides to Control Nuisance Aquatic Vegetation.
(1)
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 the state plan. No person shall apply aquatic
herbicide in a public body of surface water where a local plan governs unless
the herbicide is applied in a manner consistent with the local plan. Where
a local plan has been adopted and approved, the requirements of the local
plan supersede the requirements of this subsection.
(2)
All persons intending to apply an aquatic herbicide shall
provide written notice to the governing entity, TPWD, 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, and all persons
who have requested notice (TPWD will maintain a list) no later than the 14th
day before the application is to occur. The notice shall include:
(A)
the dates of the proposed application;
(B)
all label information for the aquatic herbicide to be applied;
(C)
a statement that TPWD's guidance document has been reviewed
and the proposed herbicide application is consistent with the principles of
integrated pest management as set forth in subsection (a)(2) of this section
and that document;
(D)
information demonstrating that the proposed application
will not result in exceeding:
(i)
the maximum contaminant level of the herbicide in finished
drinking water as set by the TNRCC and the EPA; or
(ii)
if the aquatic herbicide does not have an MCL established
by the TNRCC and the EPA, the maximum label rate; and
(E)
TDA applicator license number, if any.
(3)
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 (b)(2) of this
section, that the application will be consistent with the state plan. 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.
(4)
An individual who is a licensed applicator may apply aquatic
herbicide after notice consistent with subsection (b)(2) 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.
(5)
After receiving notice of a proposed application of aquatic
herbicide, a governing entity, or TPWD in the absence of such an entity, shall:
(A)
provide the individual proposing the application with the
state plan;
(B)
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
(C)
determine whether the proposed application is consistent
with the state plan.
(6)
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.
(7)
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.
(8)
Any application of aquatic herbicide shall comply with
label rates approved by the EPA.
§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.
(b)
A local plan may take into account the particular needs
and uses of the public body or bodies of surface water to which it will apply.
The local plan may allow herbicide use if the person proposing to apply the
herbicide notifies the governing entity not later than the 14th day before
the proposed date of application. The local plan shall provide that treatment
proposals shall be submitted concurrently to TPWD and the governing entity
(on the form provided in the guidance document) no later than the 14th day
before the measures are to begin and that the governing entity 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. The person
submitting the treatment proposal shall have the burden of demonstrating compliance
with the local plan.
(c)
Proposed local plans should be developed in cooperation
with TPWD, TDA, and TNRCC, and shall be submitted to TPWD on a form prepared
by TPWD. TPWD will coordinate review of the plan by TNRCC and TDA.
(d)
Governing entities shall seek and encourage public participation
in the creation and review of local plans. At a minimum, TPWD, TNRCC, or TDA
will hold at least one public meeting in the area affected by the local plan.
Public comment will be received by TPWD, TNRCC, and TDA for 30 days after
the local plan is submitted for agency approval. TPWD, TNRCC, and TDA will
review and respond to local plan submittals within 60 days of receipt.
§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 treatment proposals submitted to TPWD,
all notices received and provided, all control measures taken by the governing
entity (including records of date, place, location, type, and amount of all
aquatic herbicide applications), and any other information relevant to a particular
individual request for shoreline treatment.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2001.
TRD-200100303
Gene McCarty
Chief of Staff
Texas Parks and Wildlife Department
Effective date: February 6, 2001
Proposal publication date: July 21, 2000
For further information, please call: (512) 389-4775
Chapter 365.
INVESTMENT RULES
The Texas Water Development Board (the board) adopts amendments to
31 TAC §365.1 and §365.21, concerning Investment Rules without change
to the proposed text as published in the December 1, 2000, issue of the
Section 365.1 is amended to delete the reference to the Board's Statement
of Investments Owned in describing the scope of the Board's investment portfolio.
The statement is no longer included in the Board's Annual Financial Report.
Section 365.21 is amended to delete the reference to accrued interest.
Accrued interest is not a required element under the PFIA in the Board's investment
reports, and should therefore not be included in the Board's Investment Rules.
No comments were received on the adopted amendments.
Subchapter A. GENERAL PROVISIONS
Part 10.
TEXAS WATER DEVELOPMENT BOARD