ASSESSMENT OF RESULTS REGARDING

PESTICIDE USE LEGISLATION

IN 76^TH TEXAS LEGISLATURE

Two bills related to pesticide use were introduced in the 76^th Texas Legislature. House Bill (HB) 1378 by Representative Elliott Naishtat would have directed the Texas Natural Resource Conservation Commission (TNRCC) and the Texas Department of Agriculture (TDA) to study the feasibility of a pesticide use reporting system for Texas. This bill was left pending after a hearing in the House Natural Resources Committee.

HB 3079, introduced by Representative Edmund Kuempel and co-sponsored by Senator Buster Brown, establishes new requirements for the application of aquatic herbicides to Texas waters. This bill passed both the House and Senate and was signed into law by Governor George Bush.

The introduction of both bills was preceded by substantial negotiations among different interest groups. In both cases, the negotiations served to identify common ground among public interest organizations, pesticide applicators, pesticide manufacturers, regulatory agencies and others. In the case of HB 1378, the negotiations reached an impasse before the session. In the case of HB 3079, the negotiations produced an agreed-upon piece of legislation that represents a very important step forward in the regulation of aquatic herbicide use in Texas. HB 3079 was supported by Texas Clean Water Action, several regional and statewide angler organizations, lake management authorities, pesticide manufacturers, drinking water providers and the Texas Parks and Wildlife Department.

The following sections provide more detail on the development of these two pieces of legislation and the actions taken by the 76^th Legislature.

HB 1378—Pesticide Use Reporting Feasibility Study.

In l998, discussions began to take place among representatives of public interest organizations (Consumers Union and Texas Center for Policy Studies), the Texas Rural Water Association, pesticide manufacturers, the Texas Farm Bureau, TNRCC and TDA regarding the need for better information on pesticide use, particularly for implementation of drinking water protection programs. These negotiations identified a number of common concerns. For example, all parties agreed that it was difficult for drinking water providers to identify potential sources of pesticide contamination without better information on when and where pesticides were being used in various watersheds. It was also agreed that in addition to needing information on agricultural pesticide use, the state needed information on non-agricultural uses—such as golf courses, parks and right-of-ways. Representatives of the public interest organizations agreed with the Texas Farm Bureau that farmers had legitimate privacy interests that might need to be protected with respect to public availability of pesticide use information.

At one point, the negotiators came close to reaching an agreement on the outlines of a potential pesticide use reporting system for Texas. The negotiations reached an impasse, however, when certain companies requested that the pesticide manufacturers’ representative withdraw from any further discussions and when the Texas Farm Bureau began to withdraw support for use reporting and favor the use of "survey" data.

HB 1378 was filed in order to initiate a more formal study of whether pesticide use reporting was feasible in Texas. The TNRCC and TDA would have been charged with leading the feasibility study. The bill was referred to the House Natural Resource Committee . At an April 7, 1999 hearing, a committee substitute was filed in an attempt to address some of the concerns that had been raised about the bill by representatives of pesticide manufacturers and the Texas Farm Bureau. The changes included making sure that the feasibility study would consider the availability and potential uses of existing survey data from the National Agricultural Statistics Service and that it would avoid making any recommendations requiring duplication of reporting or record-keeping requirements. The bill specified that TNRCC and TDA would consult with a wide range of interests in conducting the feasibility study.

Despite these changes, the Texas Farm Bureau and the Texas Agricultural Industries Assn. (representing pesticide manufacturers) still testified against HB 1378. The TX Ag Industries Assn. was concerned that the feasibility study not take away from existing resources at TNRCC or TDA. (Note: the fiscal note attached to the bill by the Legislative Budget Board indicated there would be no fiscal impact to the agencies, as the study could be carried out with existing resources.)

The Texas Farm Bureau raised two primary objections in its testimony against the bill: (1) failure of the public interest groups to negotiate with the legislative representative of the Texas Farm Bureau (vs. the regulatory representative); and (2) concern that if Texas had use reporting, but other states did not, Texas farmers would be at a disadvantage if, 20 years from now, a farmworker who had worked in multiple states filed suit because of injuries alleged to be caused by pesticide exposure.

In addition, some members of the House Natural Resources Committee believed that the survey data collected by the National Agricultural Statistics Service (NASS) were sufficient and that no further analysis of the need for a pesticide use reporting system was warranted. (Note: the NASS data does not cover all crops in all regions of the country, nor does it cover non-agricultural uses of pesticides. In addition, the survey data is essentially available as average use patterns and therefore does not reflect specific uses in specific watersheds in Texas. Thus, its value for water quality protection is quite limited).

Representatives of Consumers Union, the Texas Center for Policy Studies, Texas Clean Water Action and the Texas Parent-Teachers Assn. testified in support of the bill. Several others, including a number of medical researchers from the University of Texas School of Public Health in Houston and the former chair of the State Board of Education sent letters in support of the bill.

The Committee left the bill pending. Over the next several weeks, Representative Naishtat and public interest organizations worked with the Texas Ag Industries Assn. and the Texas Farm Bureau in an attempt to narrow the bill and get their support. At one point, the bill was narrowed to require that the feasibility study only address non-agricultural uses of pesticides, since that is the area where data are completely lacking. Even with this change, however, the Texas Farm Bureau continued to raise objections, including wanting use of herbicides on rights-of-way excluded from the feasibility study.

During the last few days of the session when legislation could still be voted out of House Committees, it appeared that all parties had finally reached agreement on a much-narrowed feasibility study. At that point, however, the Chair of the House Natural Resources Committee, Representative David Counts, apparently believed it was too late to move the bill and no vote was taken on the legislation. Over the next week, the parties tried to reach agreement on resolution language that would direct TNRCC to at least do the feasibility study on non-agricultural pesticide use reporting, but again the Committee Chair and a few other Committee members were not receptive to the idea.

Despite the fact that HB 1378 did not pass this session, the Texas Pesticide Information Network believes that the negotiations and subsequent developments have demonstrated that there are valid concerns about the adequacy of pesticide use data in Texas, particularly with respect to the effective implementation of water quality protection programs. The Texas Pesticide Information Network, therefore, plans to continue to raise this issue in appropriate forums, including:

• TNRCC’s implementation of the Source Water Assessment and Protection provisions of the federal Safe Drinking Water Act;
• TNRCC’s development of groundwater management plans for specific pesticides such as atrazine; and
• The TNRCC Sunset process that begins this year, and that will conclude with legislation for the 2001 session of the Texas Legislature.

HB 3079—Aquatic Herbicides and State Aquatic Vegetation Management Plan

The effort to better regulate use of aquatic herbicides was spurred on by an alliance among environmental organizations, environmental health advocates and statewide and regional angler groups. These organizations formed a network called BAIT (Better Aquatics in Texas). BAIT members were concerned about the increasingly indiscriminate use of aquatic herbicides to kill aquatic vegetation such as hydrilla in Texas lakes and streams. Their concern was shared by managers of public drinking water supplies in which these herbicides were sometimes being used. (Note: for more information about how the BAIT coalition developed and its concerns about aquatic herbicide use in Texas, contact Sparky Anderson, at Texas Clean Water Fund, at 512-474-0605 or sparky@cleanwater.org ).

Lengthy negotiations involving the BAIT coalition, state agency representatives, pesticide manufacturers, drinking water providers and various lake management authorities finally produced a bill that was supported by all parties. The parties worked together during the session to keep the bill intact and to defeat various amendments that were not consistent with the agreement. The diversity of support for the bill helped ensure its success.

As passed by the 76^th Texas Legislature, HB 3079 requires the Texas Parks and Wildlife Department (TPWD) to develop a statewide aquatic vegetation management plan that follows generally accepted principles of integrated pest management (IPM). In the legislation, IPM is defined as:

the coordinated use of pest and environmental information and pest control methods to prevent unacceptable levels of pest damage by the most economical means and in a manner that will cause the least possible hazard to persons, property and the environment.

The state plan--which is to be developed in consultation with TNRCC, TDA, water districts, lake management authorities and others--will establish minimum standards for local management plans. In order for aquatic herbicides to be used in public bodies of water, the entity with governing authority over the water resource must either adopt the statewide plan or have a local plan that TPWD, TNRCC and TDA have determined meets the minimum standards of the statewide plan. (Herbicide use in private bodies of water, such as farm stockponds, is not covered by HB 3079).

The state plan must contain provisions for lake management authorities and public drinking water providers to receive advance notice of aquatic herbicide applications. It must also contain provisions for ensuring that any aquatic herbicide application will protect fish and wildlife resources and habitat and will not result in violation of drinking water standards.

TPWD is charged with developing the details of these notification requirements through adoption of the state plan. In order to accomplish the purposes of the plan (i.e. following IPM principles and preventing violations of drinking water standards or harm to fish and wildlife resources and habitat), it is likely that, the notifications will have to contain specific information on what herbicide is being used, where it is being applied and how much is being used.