HBA-MPM H.B. 2623 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 2623 By: Maxey Environmental Regulation 3/23/1999 Introduced BACKGROUND AND PURPOSE Public drinking water providers are required by law to provide clean water to their customers, however, they have no way to prevent third parties from contaminating their water source with aquatic herbicides. Herbicides have been used as a means of controlling certain species of aquatic vegetation that interfere with shoreline access and water activities such as swimming, boating and water skiing. Legally, anyone in Texas may put chemical herbicides in drinking and recreational waters without public notification and without coordinating with others who are also using herbicides. A study performed by the Texas Parks and Wildlife Department resulted in recommendations that aquatic management be conducted by using individual lake management plans. The report also indicated that integrated pest management practices for management of aquatic ecosystems be adopted by the Texas Parks and Wildlife Department. H.B. 2623 requires all aquatic pesticides to be applied by a licensed applicator or under the approval of a local aquatic pest management plan. It further requires that nonchemical pest control methods be considered before applying chemical pesticides; requires coordination, oversight, and public notice of pesticide application; and directs local government entities to develop integrated pest management plans. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that rulemaking authority is expressly delegated to the Department of Agriculture in SECTION 2 (Section 76.104, Agriculture Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Chapter 26, Water Code, by adding Subchapter L, as follows: SUBCHAPTER L. AQUATIC PESTICIDE MANAGEMENT Sec. 26.501. DEFINITIONS. Defines "integrated pest management" and "public body of surface water" for purposes of this subchapter. Sec. 26.502. APPLICATION OF AQUATIC PESTICIDE: PERMIT REQUIRED. (a) Authorizes the Texas Natural Resource Conservation Commission (TNRCC), by rule, and in coordination with the Department of Agriculture (TDOA) and the Parks and Wildlife Department (department), to: _prohibit the application of pesticide to control aquatic pests in a public body of surface water by a person unless that person possesses certain credentials; _provide procedures for a person to obtain a permit before application of the pesticide; _determine practical nonchemical pest control strategies and require that these or other nonchemical methods have been seriously considered before granting a permit for aquatic pesticide use; and _adopt procedures providing for the coordination, oversight, public notification, and enforcement of all aquatic pesticide use to protect state fish and wildlife resources and prevent unreasonable risk from the use of any aquatic pesticide. (b) Prohibits TNRCC from issuing a permit under this subchapter unless it determines that the proposed pesticide application for which the permit is requested will not exceed the standard for maximum contaminant levels in drinking water set by TNRCC and the United States Environmental Protection Agency. Sec. 26.503. LOCAL AQUATIC INTEGRATED PEST MANAGEMENT PLAN. (a) Requires each governmental entity that regulates a public body of surface water to adopt a local aquatic integrated pest management plan (plan) to coordinate pest control activities in the public body of surface water under its jurisdiction while ensuring the health of the ecosystem and the quality of drinking water. (b) Provides that the plan must take into consideration certain factors. (c) Authorizes the plan to provide for nonpermitted use of aquatic pesticides under certain conditions. (d) Provides that a plan must be approved by TNRCC. Requires a local governmental entity proposing a plan to submit it to TNRCC in the prescribed manner, and requires TNRCC to approve or reject the plan no later than the 60th day after submission. (e) Provides that a proposal to apply a pesticide to a public body of surface water under a local plan without a permit, as provided by this section, must be approved by TNRCC and the department. Provides that the application is considered approved if TNRCC or the department has not rejected it by the 60th day of receiving notice according to TNRCC rules. (f) Prohibits TNRCC from approving a plan or a proposed application under a local plan unless it has determined that the plan or proposed application will not exceed the standard for maximum contaminant levels in drinking water set by TNRCC and the United States Environmental Protection Agency. Sec. 26.504. PENALTY. Provides that a person who applies for an aquatic pesticide in violation of this subchapter is liable for a civil penalty under Subchapter D (Civil Penalties), Chapter 7, (Enforcement), Water Code. SECTION 2. Amends Section 76.104, Agriculture Code, by adding Subsection (e), as follows: (e) Requires TDOA to adopt rules prohibiting the application of a pesticide to control aquatic pests in a public body of surface water by a person who does not have a commercial pesticide applicator's license or a permit to apply pesticides for the control of aquatic pests from TNRCC or who does not apply the pesticide as provided by Subchapter L, Chapter 26, Water Code, and rules adopted under that subchapter. Defines "public body of surface water" with the meaning assigned by Section 26.501, Water Code. SECTION 3. Effective date: September 1, 1999. Makes Sections 26.502 and 26.504, Water Code, and Section 76.104(e), Agriculture Code, as added by this Act, applicable only to the application of aquatic pesticide that occurs or is proposed to occur on or after June 1, 2000. SECTION 4. Requires TNRCC, in cooperation with TDOA and the Parks and the department, to adopt rules necessary to implement the program established by this Act. Requires a governmental entity with jurisdiction over a public body of surface water, as that term is defined in this Act, to submit for approval to TNRCC a local aquatic integrated pest management plan developed under this Act no later than March 1, 2000. SECTION 5. Emergency clause.