HBA-NMO, NIK H.B. 3079 76(R)BILL ANALYSIS


Office of House Bill AnalysisH.B. 3079
By: Kuempel
State Recreational Resources
9/28/1999
Enrolled



BACKGROUND AND PURPOSE 

Widespread aquatic plant problems in Texas began with the appearance of
water hyacinth.  By 1898, floating mats of hyacinth were obstructing
navigation in South Atlantic and Gulf Coast states.  Water hyacinth is able
to infest many freshwater habits, which, coupled with a rapid growth rate,
can severely affect navigation, water supply, and water flow.  Other
species of aquatic plants have occasionally become problematic on
individual lakes or streams in Texas.  These plants have been controlled
when the occurrence became harmful or potentially harmful to human life,
impeded navigation, diminished the quality of water-oriented recreational
areas, or when new occurrences of exotic plants were found. 

The U.S. Congress authorized the U.S. Army Corps of Engineers (Corps) to
eradicate water hyacinth in the 1899 Rivers and Harbors Act. In 1958,
congress expanded the program and authorized the Corps to conduct studies
on the efficacy of herbicides.  Adopted in 1965, a federal Aquatic Plant
Control Program (APCP) was administered by the Corps.  Funding for the
program was authorized on a 70 percent and 30 percent local cost-shared
basis.  Congress changed the level of federal involvement in the APCP in
the Water Resources Development Act of 1986, which affected the Texas
program by increasing the local cost-sharing requirement from 30 to 50
percent. In the early 1990's, the Corps' share for vegetation control
operations was eliminated entirely. 

The Texas Parks and Wildlife Department had a statewide aquatic plant
control program to control nuisance aquatic plants. In 1965, the program
was discontinued because of new federal laws and herbicide restrictions.
No statewide vegetation control program was in effect from the end of the
program in 1965 until 1967, during which time, the water hyacinth
reinfested nearly 50 percent of Lake Corpus Christi. These problems
influenced the 60th Legislature to pass H.B. 235 in 1967, which permitted
the Texas Parks and Wildlife Department to cooperate with the Corps' APCP. 

The cost sharing arrangement between the Texas Parks and Wildlife
Department and the U.S. Army Corps of Engineers continued uninterrupted for
25 years until the early 1990s. With the elimination of federal money for
noxious plant control operations in 1995, cost sharing began between the
Texas Parks and Wildlife Department and water body controlling authorities.
H.B. 3079 implements a statewide aquatic vegetation management plan, and
sets up a program through the Texas Water Development Board for aquatic
vegetation management. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Parks and Wildlife Department in
SECTION 1 (Section 11.082, Parks and Wildlife Code) and to the Texas Water
Development Board in SECTION 2 (Section 15.854, Water Code) of this bill. 

SECTION BY SECTION ANALYSIS

SECTION 1.  Amends Chapter 11, Parks and Wildlife Code, by adding
Subchapter G, as follows: 

SUBCHAPTER G.  AQUATIC VEGETATION MANAGEMENT

Sec. 11.081.  DEFINITIONS.  Defines "governing entity," "integrated pest
management," "local plan," "public body of surface water," "state plan,"and
"water district." 
  
Sec. 11.082.  STATE AQUATIC VEGETATION MANAGEMENT PLAN.  Requires the Parks
and Wildlife Department (department) to develop and, by rule, adopt a state
aquatic vegetation management plan following the generally accepted
principles of integrated pest management.  Requires the state plan to apply
throughout the state unless a governmental entity has adopted an approved
local plan. Requires the department to develop the state plan in
coordination with the Texas Natural Resource Conservation Commission, the
Department of Agriculture,  water districts and other political
subdivisions of the state with jurisdiction over public bodies of surface
water, and public drinking water providers. Provides that the state plan
must:  

_establish minimum standards for a governing entity that regulates a public
body of surface water;  

_require that any application of aquatic herbicide complies with label
rates approved by the United States Environmental Protection Agency;  

_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 date the application is to occur; 

_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 

_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 Texas
Natural Resource Conservation Commission and the United States
Environmental Protection Agency, or the maximum label rate, if the aquatic
herbicide does not have a maximum containment level established by the
Texas Natural Resource Conservation Commission and the United States
Environmental Protection Agency. 
 
Sec. 11.083.  LOCAL AQUATIC VEGETATION MANAGEMENT PLAN.  Provides that a
governing entity may develop and adopt a local aquatic vegetation
management plan. Provides that a local plan must be approved by the
department, the Texas Natural Resource Conservation Commission, and the
Department of Agriculture.  Authorizes a local plan to take into account
the particular needs and uses of the public bodies of surface water to
which it will apply. Prohibits the plan from being approved unless it meets
the minimum standards set by the state plan.  Authorizes the local plan to
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.  

Sec. 11.084.  APPLICATION OF AQUATIC HERBICIDE IN PUBLIC BODY OF SURFACE
WATER.  (a)  Prohibits a  person from applying aquatic herbicide in a
public body of surface water unless the herbicide is applied in a manner
consistent with the plan adopted by the governing entity.  

(b) Prohibits  state money from being used to pay for treatment of a public
body of surface water with a chemical herbicide unless the application of
the herbicide is performed by an applicator licensed for aquatic herbicide
application by the Department of Agriculture. 
 
(c)  Requires an individual who does not hold an applicator's license and
who desires to apply an aquatic herbicide on a public body of surface water
to give written notice not later than the 14th day before the date the
application of the aquatic herbicide is to occur to the governing entity
with jurisdiction over the body of water on which the application of the
herbicide is proposed.  Requires the governing entity to respond to the
individual's  application not later than the day before the date the
application of the aquatic herbicide is to occur. Prohibits the individual
from applying the aquatic herbicide unless the governing entity finds that
the application will be consistent with the state or local plan adopted by
the entity.  
 
(d)  Authorizes the state plan to provide for use of an aquatic herbicide
consistent with the plan if the individual who desires to apply the aquatic
herbicide gives notice to the appropriate governing entity in the same
manner as provided by Subsection (c) for an unlicensed applicator, and the
governing entity does not disapprove the application. 
 
(e) Requires the governing entity to follow specified procedures after
receiving notice of a proposed application of aquatic herbicide. 

(f) Requires the governing entity to prohibit a proposed application of
aquatic herbicide if the governing entity finds that the proposed
application is inconsistent with the appropriate plan, or notify the
individual proposing the application of the herbicide that the proposed
application is not inconsistent with the appropriate plan if the governing
entity finds that the proposed application is not inconsistent with the
plan.  

Sec. 11.085.  LIABILITY.  Provides that the liability under other law of a
governing entity that receives notice of a proposed application of aquatic
herbicide is not affected by the requirements of this subchapter. Provides
that notice by a governing entity to an individual under Section 11.084(f)
does not constitute authorization by that entity for the application of the
herbicide. Provides that this subchapter does not relieve an individual who
applies aquatic herbicide to a public body of surface water of the
obligation to comply with all applicable federal, state, or local laws,
rules, ordinances, or orders relating to the application of the herbicide
in the body of water.  

Sec. 11.086.  RECORDS.  Requires a governing entity to maintain for not
less than five years all records relating to notifications received under
Section 11.084 and any other information relevant to a particular
individual request for shoreline treatment. 
 
SECTION 2.  Amends Chapter 15, Water Code, by adding Subchapter N, as
follows: 

SUBCHAPTER N.  AQUATIC VEGETATION MANAGEMENT FUND

Sec. 15.851.  DEFINITIONS.  Defines "approved local plan," "fund,"
"political subdivision," and "water district." 
  
Sec. 15.852.  CREATION OF FUND.  Provides that the aquatic vegetation
management fund is a special account in the water assistance fund. Provides
that the fund consists of enumerated appropriations and transference of
money. 

Sec. 15.853.  USE OF FUND.  Authorizes the money in the fund to be used
only for the specified enumerated purposes, listed in the order of
priority.  Prohibits the amount of funding for the purposes authorized by
this section from exceeding amounts equal to the specified percentages of
any biennial appropriation to the board for use under this subchapter. 

Sec. 15.854.  RULES.  Requires the Texas Water Development Board (board) to
adopt rules necessary to administer this subchapter, including rules
establishing procedures for application for and award of grants,
distribution of grants, and administration of grants and the grant program
established under this subchapter.  

SECTION 3. Amends Section 15.002(a), Water Code, to include providing for
the management of aquatic vegetation among the projects the legislature
finds are in the public interest to encourage and assist in planning and
constructing. 

SECTION 4. Amends Section 15.011(b), Water Code, to include the aquatic
vegetation management  fund created under Subchapter N of this chapter
(Texas Water Assistance Program) among the funds to which the board is
authorized to transfer money from the fund. 

SECTION 5. Amends Section 15.012(c), Water Code, to make a conforming
change. 

SECTION 6. (a) Effective date: September 1, 1999, except as provided by
Subsection (b). 

(b) Provides that the Parks and Wildlife Commission is required to
implement this Act only if the legislature appropriates money specifically
for that purpose.  Provides that, if the legislature does not appropriate
money specifically for that purpose, the commission may, but is not
required to, implement this Act. 

(c) Provides that Sections 11.083, 11.084, 11.085, and 11.086, Parks and
Wildlife Code, as added by this Act, take effect on the date on which the
Texas Parks and Wildlife Commission publishes notice in the Texas Register
of the final adoption of a state aquatic vegetation management plan under
Section 11.082, Parks and Wildlife Code, as added by this Act. 

SECTION 7. Emergency clause.