HBA-NIK H.B. 3079 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3079 By: Kuempel State Recreational Resources 4/9/1999 Introduced 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 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 certain enumerated provisions concerning public surface water, aquatic herbicide, and public drinking water to which the state must adhere. Sec. 11.083. LOCAL AQUATIC VEGETATION MANAGEMENT PLAN. Provides that a governing entity must adopt the state plan or 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 governing entity with jurisdiction over that body of water has adopted the state plan or a local plan applicable to that body of water, and 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 a commercially licensed applicator instructed in 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. 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) Requires the governing entity to follow specified provisions after receiving notice of a proposed application of aquatic herbicide. (e) 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(e) 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 transferrance 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 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) Prohibits the Parks and Wildlife Commission from implementing this Act if the legislature does not appropriate money specifically for that purpose. SECTION 7. Emergency clause.