TITLE 31. NATURAL RESOURCES AND CONSERVATION

PART 17. TEXAS STATE SOIL AND WATER CONSERVATION BOARD

CHAPTER 530. CARRIZO CANE ERADICATION PROGRAM

31 TAC §§530.1 - 530.7

The Texas State Soil and Water Conservation Board (State Board) proposes new §§530.1 - 530.7, concerning the implementation of a Carrizo Cane Eradication Program (CCEP) along the Rio Grande River between the State of Texas and the United Mexican States because it is essential to attain effective control of the border by the Department of Public Safety of the State of Texas and the U.S. Border Patrol. Furthermore, removing the cane will also provide benefits to the environment and to freshwater resources. The proposed new rules would implement the statutory requirements of Senate Bill 1734, 84th Texas Legislature, Regular Session, 2015, relating to the eradication of Carrizo cane along the Rio Grande River.

The proposed new CCEP rules in Title 31 Texas Administrative Code Chapter 530 are organized as follows:

(1) Statutory Authority and Policy Statement; (2) Definitions, (3) Administration of Funds; (4) Activities Eligible for Reimbursement; (5) Applicability; (6) Priority Area Establishment, Allocation of Funds, and Contracting Requirements; and (7) Conservation Plans and Follow-Up Treatment.

The following is a description of the proposed new rules.

§530.1. Statutory Authority and Policy Statement

Senate Bill 1734 provides statutory authorization for the State Board to put in place a voluntary program to control Carrizo cane. Arundo donax (Carrizo cane) is an invasive plant species native to east Asia that grows along the banks of the Rio Grande in the Rio Grande Valley. The cane commonly grows from 9 to 27 feet tall and clusters into large groups.

Carrizo cane interferes with the United States Border Patrol's (U.S. Border Patrol) ability to clearly see individuals attempting to illegally cross the border, and it restricts agents' access to these areas. This gives illegal border crossers the ability to evade agents and enter the United States undetected. It also creates an obstruction that puts border patrol agents at risk by potentially making them more vulnerable to attack from lawbreakers. Controlling cane is essential if the Department of Public Safety of the State of Texas and the U.S. Border Patrol are to attain effective control of the border.

Additionally, a large swath of trash and debris often accumulates in the cane, damaging the environment. The cane uses massive amounts of freshwater resources and serves no useful ecological purpose. Removing the cane will also provide benefits to the environment and to freshwater resources.

The State Board has previously managed three grant funded programs to clear Carrizo cane along the Rio Grande River, and a program to clear invasive brush species from more than 20 watersheds within Texas, working with the consent of landowners. As much of the land along the Texas-Mexico border is privately owned, the removal effort must include both private landowners and local government entities in a voluntary manner.

In accordance with Section 201.020, Agriculture Code, the State Board may adopt rules as necessary for the performance of its official actions, and may hold public hearings at times and places in this state as determined by the board. The State Board is authorized to implement a Carrizo cane eradication program pursuant to Section 201.0225, Agriculture Code.

§530.2. Definitions

This section provides definitions of key terms used within §§530.1 - 530.7.

§530.3. Administration of Funds

This section provides information on general fiscal provisions, expected sources of funding, and information on the allocation of funds and reimbursement processes. Eligible Soil and Water Conservation Districts (SWCDs) must comply with any applicable provisions within the Manual of Fiscal Operations for Soil and Water Conservation Districts at all times. Non-governmental contracted service providers must comply with all applicable federal and state laws and judicial mandates, as well as agreements between the State Board and law enforcement entities regarding priority areas.

Sources of funding for this program are expected to be provided through general revenue from the Texas Legislature, and periodically from federal sources when available. This section explains that allocations of available funding will be made by the State Board prior to any contracts or activities being initiated. Allocations will be made to border security priority areas based on information acquired by the State Board from the Texas Department of Public Safety and local law enforcement entities. All payments made to landowners, SWCDs, and private vendors shall be through reimbursement upon submittal of reimbursement requests to the State Board and in accordance with all applicable laws, rules, and regulations.

§530.4. Activities Eligible for Reimbursement

This section provides information on the specific activities eligible for reimbursement through this program, which include: (1) any form of mechanical control; (2) use of biological methods approved by the State Board; and (3) the use of herbicides from land, water, and aerial platforms, in accordance with all required laws, rules and regulations. The State Board is aware that not all methods are appropriate, most effective, nor practical or economically most efficient in all areas; therefore the agency will coordinate with the program's participants on a case-by-case basis to determine the best method for any particular site for program activity. In situations where herbicides are administered, the rule specifies that all use of herbicides will be done in accordance with the specific product's label.

§530.5. Applicability

This section provides information on the specific geographic areas where the State Board would allow reimbursement regarding this program. When appropriate and beneficial, methods that control other noxious species of brush may be used in conjunction with methods that control Carrizo cane, so long as there is a water conservation and border security benefit.

This rule would specify that no landowner is required to participate in this program, and that treatment costs financed through this program would be reimbursed at a 100-percent basis, unless an exception is approved by the State Board for a cost-sharing requirement between the State Board and another party.

§530.6. Priority Area Establishment, Allocation of Funds, and Contracting Requirements

This section addresses how the State Board would allocate funding to specific border security priority areas. The proposed rule specifies that within a fiscal year, if adjustments are required, the State Board may approve such adjustments or provide the State Board staff the authority to make adjustments when the State Board has adopted such a policy for a specific fiscal year.

Additionally, this section would establish that the State Board will consider recommendations from the Texas Department of Public Safety and local law enforcement entities regarding prioritization of activities. This section also addresses the contracting procedures for the CCEP.

Finally, this section allows for the State Board to make emergency allocations to redirect funding from one project area to another when notified of changing priorities by the Texas Department of Public Safety or local law enforcement entities within a fiscal year.

§530.7. Conservation Plans and Follow-Up Treatment

This section would specify that all private lands treated through this program would be required to agree to a conservation plan for mitigating after-effects of treatment to address soil and water conservation issues. Soil erosion, water quality, and water quantity would all be addressed. The State Board is the lead agency in Texas responsible for abating, managing, and preventing nonpoint source pollution from agricultural and silvicultural activities. Each of these conservation plans would be considered confidential in accordance with Section 201.006, Agriculture Code.

Additionally, this section would provide for follow-up treatment at the discretion of the State Board, the local SWCD, and in coordination with the Texas Department of Public Safety and local law enforcement entities on an as needed basis.

FISCAL NOTE. Kenny Zajicek, Fiscal Officer for the State Board, has determined that for the first five-year period the new rules are in effect, there are no anticipated fiscal implications for state and local governments and there are no anticipated costs to entities required to comply with the proposed rules. There is no anticipated effect on local economy for the first five years that the proposed new rules are in effect; therefore, no local employment impact statement is required under Texas Government Code, §2001.022. The proposed new rules do not impose a cost on regulated persons, another state agency, a special district, or local government and, therefore, is not subject to Texas Government Code, §2001.0045.

PUBLIC BENEFIT/COST NOTE. Mr. Zajicek has determined that for each year of the first five years the new rules are in effect the public benefit anticipated as a result of implementing the new rules would be increased visibility for law enforcement for border security purposes and benefits to the environment and freshwater sources.

ECONOMIC IMPACT STATEMENT AND REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES, MICROBUSINESSES, AND RURAL COMMUNITIES. There is no direct adverse economic impact to small businesses, microbusinesses, and rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

GOVERNMENT GROWTH IMPACT: The State Board's staff has determined that the proposed new rule does have a slight government growth impact pursuant to Texas Government Code, §2001.0221. However, this is minimal in the form of two additional state employees, provided specifically for this Program, which are financed through existing CCEP appropriations. The proposed rule does not create or eliminate a government program. Implementation of the proposed rule does not require the elimination of existing employee positions. Implementation of the proposed rule does not require an increase or decrease in future legislative appropriations to the agency. The proposed rule does not require an increase or decrease in fees paid to the agency. The proposed rule does not create a new regulation. The proposed rule does not expand, limit, or repeal an existing regulation. The proposed rule does not increase or decrease the number of individuals subject to the rule's applicability as it pertains to a voluntary program, therefore it does not positively or adversely affect this state's economy.

REQUEST FOR PUBLIC COMMENT. The State Board requests public comment on these proposed new rules for a period of time beginning February 2, 2018, and ending March 5, 2018, at 5:00 p.m. CST (30 days). Only written comments will be accepted. Written comments must be addressed to TSSWCB, ATTN: John Foster, Programs Officer, 1497 Country View Lane, Temple, Texas 76504. Written comments may be delivered in person to the same address during the same period of time.

In accordance with Section 201.020, Agriculture Code, the State Board may adopt rules as necessary for the performance of its official actions, and may hold public hearings at times and places in this state as determined by the board. The State Board is authorized to implement a Carrizo cane eradication program pursuant to the Agriculture Code, §201.0225.

§530.1.Statutory Authority and Policy Statement.

Pursuant to Section 201.0225, Agriculture Code, the Texas State Soil and Water Conservation Board (State Board) shall develop and implement a program to eradicate Carrizo cane along the Rio Grande River, added by Acts 2015, 84th Leg., R.S., Ch. 431 (S.B. 1734), Sec. 1, effective June 10, 2015. Within this context, and with the understanding based on legislative committee discussion that the purpose of the Carrizo Cane Eradication Program is to take steps to control this non-native invasive species because it poses an ecological threat and provides cover for individuals seeking to cross the border illegally into the United States, it is the policy of the State Board to administer a voluntary program in cooperation with local soil and water conservation districts (SWCDs) that provides technical and financial assistance to landowners for supporting those purposes. In accordance with this purpose, §§530.1 - 530.7 of this subchapter are adopted.

§530.2.Definitions.

The following words and terms, when used in this chapter, have the following meanings:

(1) Biological control--The use of specialized insects from the native home of Carrizo cane biomass above ground.

(2) Border security priority area--A geographic area delineated by the State Board that may receive an allocation of funding under the Carrizo Cane Eradication Program.

(3) Carrizo cane--Arundo donax, giant cane, is a tall perennial cane, one of several so-called reed species. Its other common names include Carrizo, Arundo, Spanish cane, Colorado river reed, wild cane, and giant reed.

(4) Carrizo Cane Eradication Program--The Program codified in Section 201.0225, Agriculture Code, directing the State Board to develop and implement a program to eradicate Carrizo cane along the Rio Grande River, added by Acts 2015, 84th Leg., R.S., Ch. 431 (S.B. 1734), Sec. 1, effective June 10, 2015.

(5) Conservation plan--A combination of conservation land improvement measure(s) approved by the State Board and applied to the land to control soil erosion or improve the quality and/or quantity of water.

(6) Fiscal year--The 12-month period of time beginning September 1 of a year and ending on August 31 of the following year.

(7) Follow-up treatment--The act of repeating a previously used treatment method, or additional approved methods, on the same lands in order maintain or improve Carrizo cane control in a priority area.

(8) Herbicides--Chemical substances, also commonly known as weed killers, that are used to control unwanted plants.

(9) Label--A label attached to the packaging of an herbicide product that provides instructions for storage and disposal, use of the product, and precautions for the user and the environment.

(10) Mechanical control--Any method not defined as biological or through the use of herbicides to control Carrizo cane, to include mowing, shredding, hand cutting, or any similar means.

(11) Rio Grande River--The river that delineates the international boundary between the United States and the United Mexican States (Mexico) within the jurisdiction of the State of Texas.

(12) Soil and water conservation district (SWCD)--A governmental subdivision of this state and a public body corporate and politic, organized pursuant to Chapter 201 of the Agriculture Code.

(13) Texas Department of Public Safety--A department of the government of the State of Texas responsible for statewide law enforcement and vehicle regulation.

(14) Texas State Soil and Water Conservation Board (State Board)--The state agency organized pursuant to Chapter 201 of the Agriculture Code.

§530.3.Administration of Funds.

(a) General Fiscal Provisions. Eligible Soil and Water Conservation Districts (SWCDs) must comply with any applicable provisions within the Manual of Fiscal Operations for Soil and Water Conservation Districts at all times. The Manual of Fiscal Operations for Soil and Water Conservation Districts is approved and periodically amended by the State Board and is available on the State Board's website; hard copies of this manual may be requested from the State Board. Non-governmental contracted service providers must comply with all applicable federal and state laws and judicial mandates, as well as agreements between the State Board and law enforcement entities regarding priority areas.

(b) Sources of funding. Funding for this program is provided through general revenue from the Texas Legislature and periodically federal sources when available.

(c) Allocation and reimbursement. Allocations of available funding will be made by the State Board prior to any contracts or activities being initiated. All payments made to landowners, SWCDs, and private vendors shall be through reimbursement upon submittal of reimbursement requests on State Board-approved forms and in accordance with all applicable laws, rules, and regulations.

§530.4.Activities Eligible for Reimbursement.

Activities eligible for reimbursement include any form of mechanical control, use of biological methods approved by the State Board, and the use of herbicides from land, water, and aerial platforms, in accordance with all required laws, rules and regulations. All use of herbicides will be done in accordance with the specific product's label.

§530.5.Applicability.

(a) All activities shall be for the removal of Carrizo cane on lands along the Rio Grande River on the border between the State of Texas and the United Mexican States, including tributaries and canals associated with border security priority areas. When appropriate, methods that control other noxious species of brush may be used in conjunction with methods that control Carrizo cane, so long as there is a water conservation or border security benefit.

(b) No landowner is required to participate in this program.

(c) Treatment costs financed through this program shall be reimbursed at a 100-percent basis, unless an exception is approved by the State Board for a cost-sharing requirement between the State Board and another party.

§530.6.Priority Area Establishment, Allocation of Funds, and Contracting Requirements.

(a) Allocation criteria. All available funding, regardless of whether the funding is through state appropriations or through federal funding acquired through competitive or non-competitive processes, shall be approved by the State Board. Within a fiscal year, if adjustments are required, the State Board will approve such adjustments or provide the State Board staff the authority to make adjustments when the State Board has adopted such a policy for a specific fiscal year.

(b) Prioritization of activities. The State Board will consider recommendations from the Texas Department of Public Safety and local law enforcement entities regarding prioritization of activities. The State Board shall approve all allocations of funding to specific geographic areas based on political subdivision boundaries, watershed boundaries, or boundaries as defined by the State Board based on coordination activities with the above referenced law enforcement entities.

(c) Contracting. The State Board may enter into contracts directly with landowners, state agencies, federal agencies, SWCDs, other political subdivisions of state government, municipalities, and private vendors to administer the program. The State Board will comply with applicable law, policies, and procedures in the procurement of audit services, the expenditure of funds under a contract, and all the other aspects of forming and administering a contract.

(d) Emergency allocations. The State Board may redirect funding from one project area to another when notified of changing priorities by the Texas Department of Public Safety or local law enforcement entities within a fiscal year.

§530.7.Conservation Plans and Follow-Up Treatment.

All private lands that are treated through this program shall be required to agree to a conservation plan for mitigating after-effects of treatment to address soil and water conservation issues. Each of these conservation plans shall be considered confidential in accordance with Agriculture Code, §201.006.

All participants in this program shall be eligible for follow-up treatment at the discretion of the State Board, the local SWCD, and in coordination with the Texas Department of Public Safety and local law enforcement entities on an as-needed basis.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on January 22, 2018.

TRD-201800211

Mel Davis

Special Projects Coordinator

Texas State Soil and Water Conservation Board

Earliest possible date of adoption: March 4, 2018

For further information, please call: (254) 773-2250x253