| (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 major modifications to the guidance document such as changes
in procedures and notification. 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. Minor modifications such as changes
of address, typographical corrections, and addition of species or
approved herbicide may be published on the TPWD website without submission
to the Texas Register.
(4) Review by TPWD. Except as provided in paragraph
(5) of this subsection, prior to undertaking any measures to control
nuisance aquatic vegetation in a public body of surface water, a person
operating under the state plan (exclusive of TPWD personnel or its
contractors) 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.
(5) The owner or manager of a property or their agent,
other than persons hired solely for the purposes of removing aquatic
vegetation or persons using mechanical harvesters, is not required
to submit a treatment proposal for physical removal of floating aquatic
plants from public water adjacent to the property, shorelines, docks,
or other waterfront infrastructure associated with the property provided
these species are possessed, transported, and disposed in compliance
with §57.113 of this title (relating to Harmful or Potentially
Harmful Fish, Shellfish, and Aquatic Plants).
(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 TCEQ and the EPA; or
(ii) if the aquatic herbicide does not have an MCL
established by the TCEQ and the EPA, the maximum label rate; and
(E) TDA applicator license number, if any.
(3) In Tier I or emergency situations TPWD and/or its
contractors may conduct herbicide treatment with only 24 hours notice
to controlling authorities and persons on the notification list, provided
the treatment is at least two river or lake miles away from an active
potable water intake.
(4) 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.
(5) 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.
(6) 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.
(7) 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.
(8) 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.
(9) Any application of aquatic herbicide shall comply
with label rates approved by the EPA.
(10) Any application of aquatic herbicide shall comply
with applicable federal NPDES requirements under the Clean Water Act.
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| Source Note: The provisions of this §57.932 adopted to be effective February 6, 2001, 26 TexReg 1152; amended to be effective June 29, 2005, 30 TexReg 3728; amended to be effective June 12, 2013, 38 TexReg 3644; amended to be effective June 28, 2022, 47 TexReg 3691 |
