New Texas Regulations Significantly Restricting Possession of Aquatic Plants
Where Are We Now?January 20, 2011
Introduction
Texas law requires State departments to go thru periodic reviews (“Sunset reviews”) and requires new legislation for State departments to continue to operate. A Sunset review was conducted for the Texas Parks and Wildlife Department (TPWD) with a final report published July, 2009.
http://www.sunset.state.tx.us/81streports/tpwd/tpwd_fr.pdf
Included in the Sunset Advisory Commission recommendations was one for establishment of a white list of aquatic plants and algae which would be permitted to be possessed in Texas. All other aquatic plants not on the list, which are not native to Texas, would be banned and made illegal.
The Texas legislature, in approving the continuation of the TPWD, included language to require such a white list. The legislation was passed as HB 3391 and is now law.
http://www.capitol.state.tx.us/tlodocs/81R/billtext/html/HB03391F.htm
TPWD is in the final stages of preparing the regulations to implement the law and provide the official white list.
Information from TPWD on New Regulations to Implement the White List
TPWD has posted information on two web sites:
http://www.tpwd.state.tx.us/newsmedia/releases/?req=20101229b
http://www.tpwd.state.tx.us/newsmedia/releases/?req=20101229b ---This one key!
Note that the second link above is to a web page that has a number of important hot links including:
Proposed List of Approved Exotic Aquatic Plants
Ineligible Species List (should be read as list of banned/illegal aquatic plants)
Plants Removed From Draft List for Other Reasons (this includes a list of native plants; this is not a complete list of native plants; it only lists plants evaluated and found to be native.)
Weed Risk Assessment Model. (This is the assessment procedure and questions used to prepare a score for each aquatic plant evaluated).
List of All Plants Considered (For me this is the key list of plants as it lists everything the TPWD has considered and the result: approved, rejected, etc.)
Note that the TPWD has stated the above plant lists are up to date as of 1/11/2011. However, they appear not to include plants submitted by TexGal in March 2010 and by Bob Alston on January 5, 6 and 9 of 2011. Further TPWD has stated they will not be adding any new plants until after the upcoming commission meeting. Hopefully this is simply a hiatus because they are busy preparing for the Commission meeting and will resume additions and analysis immediately thereafter.
Proposed TPWD Regulations -
The following is a link to the proposed TPWD regulations governing “Exotic Aquatic Vascular Plants and Macroalgae Rules”
http://www.tpwd.state.tx.us/busines...roposals/201101_exotic_aquatic_vascular.phtml
Algae -
The new regulations also govern aquatic algae. Initially I and others found this very confusing. Finally I received clarification from TPWD that the regulations are not intended to restrict algae that we may encounter in aquariums.
The only statement I find in 70.53 (a) or (b) that seems to possibly exempt aquarium hobbyists is the statement in 70.53(b) "
The proposed regulations are intended to apply to those persons who intentionally possess microalgae, not those who possess microalgae unknowingly and without intent to evade legal compliance "
Is it correct for us to interpret this statement as meaning that aquatic plant and aquarium keepers who are not intentionally cultivating
micro algae are exempt from these regulations?
If so then would we be correct in understanding the regulation as if the statement as being extended by the text " nor aquarium keepers who may have
algae as incidential to their keeping of aquatic fish and aquatic plants "?
The TPWD response was: “
Yes, our intent was to exempt uses as you described.”
Mosses –
One recent post on the DFWAPC web site states “
this bill is about vascular plants and microalgae's as it's title says. I guess it just hit me but mosses are non vascular plants are are not covered with this bill so i believe we should have no problem with that. guess we have to read between the lines a little bit and on a technicality it seems that mosses shouldn't have any problems being kept. also i want to point out that TPWD put an aquatic moss on the list of approved plants and that is java moss which is a non vascular plant and it is another example of how much we need to educate them <tpwd> and the public on these things.”
An interesting point. However, the HB 3391 definition appears to be broader
"
2) "Exotic [, exotic fish, shellfish, or] aquatic plant" means a nonindigenous [fish, shellfish, or] aquatic plant
that is not normally found in aquatic or riparian areas [the public water] of this [the] state. "
However, consistent with the title, the text of the proposed rules state:
"
The proposed regulations implementing the HB 3391 are divided into two subchapters. Proposed Subchapter B of Chapter 70, published elsewhere in this issue of the Texas Register, contains regulations regarding exotic microalgae. Subchapter A of Chapter 70, proposed in this rulemaking, concerns vascular plants and macroalgae."
A concise definition of non-vascular plants:
"
Non-vascular plants is a general term for those plants without a vascular system (xylem and phloem). Although non-vascular plants lack these particular tissues, a number of non-vascular plants possess tissues specialized for internal transport of water.
Non-vascular plants means that they do not have specialized tissue. Liverworts may look like they have leaves, but they are not true leaves because they have no xylem or phloem. Likewise, mosses and algae have no such tissues."
I suggested to the original author that he email TPWD about this.
Status of New Regulations to Implement the White List
As apparently required by law, TPWD has held meetings for public comment on the proposed new regulations and white list which was mandated by the legislature.
Meetings were held in 2009 as early as March. I saw a posting by LanceR of TPWD dated 6/11/2010 which became a sticky in the Aquatic Plants section of HoustonFishBox.com. The last public comment meeting was January 19, 2011 in Ft. Worth with about 50 citizens attending and many speaking.
The TPWD Commission is set to review the comments made by the public, among other things in their upcoming committee meeting on January 26. Public comment is apparently not permitted at the meeting, although I believe public presence is permitted by law. The Commission will consider the proposed TPWD regulations and white list at their meeting on January 27. It is my understanding that public comment can be made at that meeting, however please note that the meeting is held in Austin.
If approved by the Commission on January 27, it is the TPWD intent to make the regulations and white list effective May 1. Until that time, the new restrictions would not be enforced.
On May1:
a) Any plant identified by TPWD as being on the approved list will be legal to possess.
b) Any plant known to be native to Texas will be legal to possess. (Be prepared to prove it).
c) It will be illegal to possess any plant specifically identified by TPWD as rejected/illegal. Enforcement will start. To obey the law, citizens will be required to destroy any plants on the TPWD rejected list.
d) Should you have any plants that have not been evaluated by TPWD and
you submit their scientific and common names to TPWD, you will be permitted to continue to keep the plants legally until TPWD has completed their evaluation of the plant.
TPWD has provided for a grace period, from May 1 to July 31, during which time citizens can keep plants not on the rejected list that have not yet been evaluated. However, such plant submissions must be done prior to July 31. Possibly they must be done earlier to allow time for TPWD to complete their analysis.
As I understand it, as of July 31, only plants then on the official white list or native plants are permitted. All other are banned and therefore illegal to possess.
Subsequent Requests for Adding New Plants to the White List
HB 3391 requires TPWD to provided an expedited review process. Recently Dr. Chilton stated it may take two months for submitted plants to be evaluated. Also, at the Ft. worth meeting on 1/19, Ken Kurzawski stated that the Commission must approve new additions to the white list. The Commission apparently meets every 2-3 months. See the schedule for part of 2011 here
http://www.tpwd.state.tx.us/business/feedback/meetings/
Note that TPWD has stated that apparently they will require citizens who submit plants for considering using an as yet unpublished form, to evaluate them, apparently using the Weed Risk Assessment criteria. TPWD stated: “
Anyone who wishes to add a plant to the approved list will need to provide information that can be used to do a risk assessment (see the existing document).”
Grandfather Clause? –
Is there a grandfather clause? Despite a web posting I made suggesting that there was a grandfather clause in the HB 3391, TPWD has clarified that there is no provision for grandfathering existing plants. One person was of the opinion that not grandfathering existing plants violated Article I section 9 of the US Constitution which prohibits Bills of Attainder or ex post facto laws. Apparently since the new law makes possession the act that is illegal, such laws are legal (note that the author is not an attorney).
What Aquatic Plant Hobbyists in Texas Should Do IMMEDIATELY
1) Review and make an inventory of all plants you possess
2) Review the TPWD list of all plants considered, to see what plants you possess have been approved, rejected, listed but no decision reached or
not included in the list.
3) Write TPWD and provide the scientific name and common name if available for every plant you keep that has not shown up on the TPWD list. Email addresses at the bottom of the page here; click on either name to send an email.
http://www.tpwd.state.tx.us/huntwild/wild/species/exotic/aquatic_plants/
What Aquatic Plant Hobbyists in Texas Should Do on May 1
1) Review the current list of rejected/illegal plants on the TPWD web site.
2) Remove and safely/appropriately destroy any of these plants in your possession.
3) Repeat the “
Immediately” steps above to ensure that you have submitted all plants you have which TPWD has not evaluated.
How You Can Help to Improve the White List
1) Make a list of plants
a. You previously kept and may want to keep again
b. You are interested in acquiring in the near term
2) Compare against the list of all plants considered by TPWD.
3) For any plants not on the list of all plants being considered by TPWD that you identified in #1, write TPWD and provide the scientific name and common name.
What You Can Do To Help Us “Live With” the White List
1)
Permits
a. HB 3391 provides for permits “
for an appropriate us that will not result in potential environmental, economic or health problems”
b. Permits are planned for various types of organizations so clearly TPWD feels that they will be able to trust such groups not to cause environmental problems. Why not us?
c. If you feel that hobbyists should be allowed permits for prohibited aquatic plants,, please tell the State that (see below for who).
2) Exempt aquatic plant hobbyists from the regulations
a. The state has said that individuals are not the target of these regulations.
“
Our intent is not to have our game wardens go looking in people’s home aquaria or backyards for illegal exotic plants”. Or maybe we are the target for the rules, just no plans to enforce them.
b. HB3391 states "
In adopting rules that relate to exotic aquatic plants, the department shall strive to ensure that the rules are as permissive as possible without allowing the importation or possession of plants that pose environmental, economic, or health problems"
c. If you feel that we should be excluded from the regulations, please tell the State that (see below for who).
3) Grandfather current keepers of aquatic plants that will otherwise be banned
a. As one lady said at the public meeting in Ft. Worth, commercial grower will have to destroy plants they have paid good money for
b. Same for hobbyists
c. If you feel that TPWD should grandfather the otherwise banned plants for existing owners, limiting them to not providing or selling to anyone in the State of Texas, please tell the State that (see below for who).
4) Expedited Approval Process
a. HB 3391 mandated an expedited approval process for new plants
b. TPWD has stated that evaluation of new plant submissions may take two months
c. TPWD has stated that they will require persons submitting new plants to “
provide information that can be used to do a risk assessment”
d. If you feel that this process is unworkable, please tell the State that (see below for who).
5) Banning Plants If Analysis is Incomplete
a. If the TPWD is unable to complete their analysis due to insufficient information, the plant will not be placed on either the approved list nor the banned list
b. The net effect is that the plan will be banned.
c. If you feel that this process is unworkable, please tell the State that (see below for who).
What you should do if you feel the white list approach is wrong and should be repealed
a. First, recognize that HB 3391 makes creation of and enforcement of the white list something that the TPWD has no choice about.
b. Please tell the State legislators that (see below for who).
When telling the State about your concerns and changes you want to see, tell
1)
Each/All TPWD commissioners (except for repealing the white list)
2)
Your State Representative
3)
Your State Senator.
4)
State Senator Hegar, a co-sponsor of the legislation who is quoted in the Star-Telegram: ”
Hegar says he's committed to finding an equitable solution even if it means revisiting the issue in the current legislative session”
http://www.star-telegram.com/2011/01/15/2771870/texas-plan-to-combat-invasive.html
How Can I EASILY Identify my Texas State Representative and State Senator?
http://www.fyi.legis.state.tx.us/
How Can I EASILY Send a Message to My Texas State Rep. or Senator?
Once you have identified your STATE of TEXAS Representative and Senator, you click on the Person’s Name which should be a hot link. For some, you scroll down to find a form you can fill out to send a message. For others click on the E-mail hotlink to bring up the form to fill out.
What if I Want To Send a Message to Some Other Texas State Representative or Senator?
http://www.capitol.state.tx.us/Members/Members.aspx?Chamber=H
http://www.capitol.state.tx.us/Members/Members.aspx?Chamber=S
How can I EASILY send a message to the TPWD Commissioners?
http://www.tpwd.state.tx.us/business/about/commission/commissioners/
Use one of the following to EASILY send them a fax
http://one of thesezero.com/
http://www.freepopfax.com/
http://askbobrankin.com/free_internet_faxing.html
Where Can I Read More About This Issue and Keep Up with Developments
The DFW Aquatic Plant club has several discussion threads on this subject:
http://www.aquaticplantcentral.com/...-forwarded-aquatic-gardeners-association.html
http://www.aquaticplantcentral.com/...c-official-position-meeting-tpwd-january.html
http://www.aquaticplantcentral.com/...quatic-plant-club/76114-contingency-plan.html
http://www.aquaticplantcentral.com/...b/76226-tpwd-white-list-hearing-ft-worth.html
I Heard About a Star-Telegram Article:
http://www.star-telegram.com/2011/01/15/2771870/texas-plan-to-combat-invasive.html
Note that you can also
leave comments on the Star-Telegram web site by clicking on "comments" at the bottom of the article. I just did. You may have to register to do so but it is very easy to do so don't let that stop you.
Key point in the article:
"
State Sen. Glenn Hegar, R-Katy, co-sponsored the 2009 measure that directed the department to establish a "white list" of non-native aquatic plants approved for sale or possession in Texas.
"What has happened with Caddo is horrible," said Hegar, a farmer. "These invasive species are just terrible and something you can't control. They can kill a lake and really impact local economies."
But after a year of wrangling, he acknowledges that the bill has had unintended consequences.
"This has been a long process on this deal, and I think we have a good ways to go," Hegar said.
"I think it's a more difficult issue to resolve than maybe at first blush it appears. But I'm committed to getting it right."
.
.
.
Hegar says he's committed to finding an equitable solution even if it means revisiting the issue in the current legislative session.
"I've said all along if we can't do it right, then we'll have to start all over again. I want to make sure that we solve the problems of invasive species in our lakes and reservoirs but do not become overburdensome or overbearing on our nursery industry," he said.
At the Ft. Worth Public Meeting, One Speaker Mentioned a Resource That Can Be Used to Help Identify Aquatic Plants?
http://keys.lucidcentral.org/keys/a...ium_&_Pond_Plants/Media/Html/Other/Entry.html
Where can I find a List of Native to Texas Aquatic Plants?
http://nativeplantproject.com/native_pond_and_wetland_plants.htm
http://www.tapms.org/aquatic plants of texas2.pdf
http://www.thekrib.com/Plants/Plants/native-usa.html (scroll down to Texas Native Plants)
http://www.gctts.org/files/NativeAquaticPlantsofTexas.pdf
http://plants.usda.gov/dl_nrcs_state_plants.html (all plants by stats not just aquatic; Excel format)
Should anyone have an additional resource, please email it to
bobalston9@yahoo.com
What Can I Do If I Want to Understand the Background On the Weed Assessment Model Being Used?
http://www.doi.gov/NISC/global/ISAC...efinititions White Paper - FINAL VERSION.pdf
http://www.doc.govt.nz/upload/documents/science-and-technical/sfc141.pdf
http://www.ibot.cas.cz/personal/pys...stralian_WRA_PlantProtectionQuarterly2010.pdf ---Excellent
http://www.hear.org/wra/tncflwra/ ---Florida weed assessment scoring details by plant
http://www.agnet.org/library/eb/539/ - mentions an aquatic plant specific assessment
What If I Cannot Get Information From TPWD?
First if you sent an email, send a polite followup email with the original email date highlighted.
Second, try another person at TPWD.
Third, go to the DFW Aquatic Plant web site. Post your question in an active thread on the
subject.
Fourth, consider a Freedom of Information Request.
http://www.tpwd.state.tx.us/site/openrecords/
Note that you may be asked to pay for the cost of providing copies to you.
Other Information
History of HB 3391
http://www.legis.state.tx.us/billlookup/History.aspx?LegSess=81R&Bill=HB3391
Some interesting reading from a guy who cataloged existing non-native species in Texas
http://www.guynesom.com/
Click on "Non-native plants of Texas"
Click on "Basic concepts" for an educational definition of "invasive species"
Click Back
Click on Texas non-native plant data (MENU)"
There are 25 aquatic plants.
Click on the small "F1" immediately after "Species ranked as F1"
Also click on the small "F2" immediately after "Species ranked as F2"
Scroll on each list to find the aquatic plants.
http://www.tpwd.state.tx.us/publications/pwdpubs/media/pwd_pl_t3200_1066_1.pdf
