Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law (amending 2VAC5-317-20).

Statutory Authority: § 3.2-802 of the Code of Virginia.

Public Hearing Information:

December 7, 2023 - 10 a.m. - Department of Agriculture and Consumer Services, Patrick Henry Building, East Reading Room, 1111 East Broad Street, Richmond, Virginia

Public Comment Deadline: December 8, 2023.

Agency Contact: David Gianino, Program Manager, Office of Plant Industry Services, Department of Agriculture and Consumer Services, P.O. Box 1163, Richmond, VA 23218, telephone (804) 786-3515, FAX (804) 371-7793, or email david.gianino@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the Board of Agriculture and Consumer Services as a policy board with the authority to adopt regulations in accordance with the provisions of Title 3.2 of the Code of Virginia. Section 3.2-802 of the Code of Virginia authorizes the board to establish by regulation those weeds deemed to be noxious weeds.

Purpose: The intent of the regulatory action is to slow the spread of noxious weeds established in Virginia and prevent the introduction of those listed weed species that are not known to occur in the Commonwealth. The proposed regulatory action is necessary to protect the Commonwealth's agricultural and natural resources from the detrimental impact of noxious weeds. Listed noxious weeds are nonnative invasive plants with very few or no natural predators or existing environmental conditions to control their rapid rate of growth. As a result, noxious weeds can grow rapidly and displace native plants. Additionally, the habitat of wildlife may be altered as these plants invariably change the ecosystem by out-competing and displacing native plants. As the spread of a noxious weed can lead to significant economic losses associated with eradication and control costs, this amendment also assists in protecting the economic welfare of citizens.

Substance: The proposed regulatory action adds 12 plant species deemed by the board to meet the definition of "noxious weed" to 2VAC5-317-20.

Issues: The 12 plant species recommended for listing as noxious weeds are all invasive plant species; they are highly adaptable to their environment, are copious seed producers, and have an ability to displace native plant species through aggressive and rapid growth. Controlling invasive plants is costly and long term once they become established. Adding these 12 plants provides an advantage to citizens, as the regulation will serve to prevent the introduction of noxious weeds to uninfested areas or slow the spread from areas that are currently infested. Movement of a listed noxious weed will require that citizens obtain a permit from the Department of Agriculture and Consumer Services (VDACS) to minimize the risk associated with moving a listed noxious weed. Through the issuance of this permit, VDACS will provide suggested best practices for the movement of the Tier 3 noxious weeds that will prevent the inadvertent spread of these plants. There are no disadvantages to the public or the Commonwealth as a result of this proposed regulatory action.

The Department of Planning and Budget's Economic Impact Analysis:

The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Code of Virginia (Code) and Executive Order 19. The analysis presented represents DPB's best estimate of these economic impacts.¹

Summary of the Proposed Amendments to Regulation. The Board of Agricultural and Consumer Services (Board) proposes to add 12 plants to the noxious weeds list.

Background. Section 3.2-800 of the Code of Virginia defines "noxious weed" to mean any living plant, or part thereof, declared by the Board through regulations under this chapter to be detrimental to crops, surface waters, including lakes, or other desirable plants, livestock, land, or other property, or to be injurious to public health, the environment, or the economy, except when in-state production of such living plant, or part thereof, is commercially viable or such living plant is commercially propagated in Virginia.

Plants that are classified as noxious weeds are prohibited from moving into or within the state without a permit.² Noxious weeds are classified as either Tier 1, Tier 2, or Tier 3 noxious weeds. Tier 1 noxious weeds are not known to occur in Virginia and are therefore more easily eradicated. Tier 2 noxious weeds are present in the Commonwealth, for which successful eradication or suppression is feasible. Lastly, Tier 3 noxious weeds are present in the Commonwealth, for which successful eradication or suppression is not feasible, but whose spread may be slowed down by restrictions on their movement.³

Section 3.2-802 of the Code of Virginia requires the Virginia Department of Agriculture and Consumer Services (VDACS) Commissioner to establish an advisory committee to conduct a scientific risk assessment of plants that are proposed to be included on the noxious weeds list.⁴ The last meeting of this committee was held in November 2022,⁵ though the weeds that are being added in this current action were discussed at various advisory committee meetings between September 2019 and June 2021.⁶ Accordingly, the Board is now proposing to add one species to the list of Tier 2 noxious weeds, Trapa bispinosa, Two-horned trapa. Additionally, the Board is also proposing to add 11 species to the list of Tier 3 noxious weeds: (i) Alliaria petiolata, Garlic mustard; (ii) Dioscorea polystachya, Chinese yam; (iii) Elaeagnus umbellata, Autumn olive; (iv) Ficaria verna, Lesser celandine; (v) Lespedeza bicolor, Bicolor lespedeza; (vi) Lonicera maackii, Amur honeysuckle; (vii) Lonicera japonica, Japanese honeysuckle; (viii) Phragmites australis, Common reed; (ix) Pueraria montana, Kudzu; (x) Reynoutria japonica, Japanese knotweed; and (xi) Ulmus pumila, Siberian elm. Only one comment was received following publication of the NOIRA stage; that commenter expressed general support for adding new weeds to the list.⁷

Estimated Benefits and Costs. VDACS reports that the 12 plant species recommended for listing as a noxious weed are all invasive plant species; they are highly adaptable to their environment, are copious seed producers, and have an ability to displace native plant species through aggressive and rapid growth.⁸ Controlling invasive plants is costly and requires efforts over a long period of time once they become established. Adding these 12 plants to the noxious weeds list would serve to prevent their introduction to un-infested areas within the Commonwealth and slow the spread from areas that are currently infested.

Adding these 12 plants to the list would require anyone seeking to move these plants to first obtain a permit from VDACS.⁹ There are no fees associated with the permit application. The permits for Tier 1 and Tier 2 noxious weeds require compliance with specific best management practices, such as double bagging plant parts that will be removed from a site. The permits for Tier 3 noxious weeds do not contain any requirements; they only suggest best management practices to prevent any inadvertent spread of these plants.

VDACS expects to absorb any costs associated with implementing the proposed changes. VDACS reports that their Office of Plant Industry Services (OPIS) communicates additions to the Noxious Weeds List by several means: via direct communication to the Virginia Nursery and Landscape Association; to VDACS-registered nursery growers and dealers via both a direct mailing and OPIS's 15 plant protection inspectors, who communicate directly with growers; through cooperative extension agents at Virginia Tech; through press releases; and on the VDACS webpage.

The noxious weeds list currently has 14 plants (three Tier 1, six Tier 2, five Tier 3) so adding 12 plants would almost double the size of the list. Over the past five years, VDACS has issued a total of 10 permits. Hence, although an increase in the size of the list may increase the number of permit applications, the additional costs of processing permit applications may not be significant.

Businesses and Other Entities Affected. VDACS reports that permit requests are likely to come from private landowners, construction companies, farmers, landscapers, and university researchers or faculty.¹⁰ The agency notes that the regulations do not require a landowner to remove those plant species from their property. In the past, the entities that have sought permits most routinely are either researchers at universities who want to confirm noxious weeds through identification of the plant at their lab, or construction contractors who request movement permits to remove the plants from a property prior to construction. The permits issued to construction contractors are issued for safe removal of the plants from the site to a landfill to ensure the plant is not spread during or after transport. VDACS reports that seven of the 10 permits issued in the last five years were for construction, two were for research, and one was for personal removal from an individual's property.¹¹

The proposed changes would lead to an increase in the number of researchers, construction companies, individual landowners, or other entities seeking to move any of the 12 plants that would be added to the noxious weeds list. However, the majority of these new permits would be for Tier 3 weeds, since all but one of the new additions to the list are in Tier 3. Permits for Tier 3 weeds only contain suggested best management practices and do not have any enforceable requirements. The newly added Tier 2 noxious weed (Trapa bispinosa) is an aquatic weed found primarily in lakes and ponds. As such, it is unlikely that construction companies will need to remove this plant from construction sites or incur related costs unless the construction activities involve artificial or natural lakes or ponds that were infested with this plant.

The Code of Virginia requires DPB to assess whether an adverse impact may result from the proposed regulation.¹² An adverse impact is indicated if there is any increase in net cost or reduction in net revenue for any entity, even if the benefits exceed the costs for all entities combined. Because some researchers, construction companies, individual landowners, or other entities may have to obtain a permit to move noxious weeds whereas previously no permit would have been required, and because some of those entities could incur additional costs to comply with the requirements for transporting the newly added Tier 2 noxious weed (Trapa bispinosa), an adverse impact is indicated. However, entities like landowners or construction companies would only incur these costs if they choose to move these plants. As mentioned previously, the regulation does not require landowners to clear noxious weeds from their property.

Small Businesses¹³ Affected.¹⁴

Types and Estimated Number of Small Businesses Affected. VDACS does not have estimates for the number of small businesses that would be affected by the proposed changes. It is possible that some of the construction contractors mentioned previously are small businesses.

Costs and Other Effects. Some of these businesses would face some minimal administrative costs of applying for an obtaining a permit. Any small businesses that need to move Trapa bispinosa would also face some additional cost of implementing the Tier 2 permit requirements.

Alternative Method that Minimizes Adverse Impact. There are no known alternative methods that would prevent the spread of noxious weeds at lower cost to small businesses.

Localities¹⁵ Affected.¹⁶ The proposed amendments do not create costs for local governments.

Projected Impact on Employment. The proposed amendments are unlikely to significantly affect total employment.

Effects on the Use and Value of Private Property. The proposed amendments are intended to protect the economic value of private property by preventing and controlling the spread of noxious weeds. Real estate development costs do not appear to be affected.

_________________________________

¹Section 2.2-4007.04 of the Code of Virginia requires that such economic impact analyses determine the public benefits and costs of the proposed amendments. Further the analysis should include but not be limited to: (1) the projected number of businesses or other entities to whom the proposed regulatory action would apply, (2) the identity of any localities and types of businesses or other entities particularly affected, (3) the projected number of persons and employment positions to be affected, (4) the projected costs to affected businesses or entities to implement or comply with the regulation, and (5) the impact on the use and value of private property.

²Chapter 123 of the 2023 Acts of Assembly creates an exemption to the definition of the verb move; except for bona fide agricultural purposes including the management, tilling, planting, or harvesting of agricultural products. See https://leg1.state.va.us/cgi-bin/legp504.exe?231+ful+CHAP0153.

³The VDACS website includes resources on identifying some of the noxious weeds. See https://www.vdacs.virginia.gov/plant-industry-services-noxious-weeds.shtml.

⁴See https://law.lis.virginia.gov/vacode/title3.2/chapter8/section3.2-802/.

⁵See https://townhall.virginia.gov/L/ViewMeeting.cfm?MeetingID=36887.

⁶The minutes for these meetings are available on the Virginia Regulatory Town Hall at https://townhall.virginia.gov/L/GetFile.cfm?File=Meeting\48\29696\Minutes_VDACS_29696_v1.pdf (September 30, 2019, committee meeting); https://townhall.virginia.gov/l/GetFile.cfm?File=Meeting\48\31465\Minutes_VDACS_31465_v1.pdf (October 23, 2020, committee meeting); https://townhall.virginia.gov/L/GetFile.cfm?File=meeting\48\32314\Minutes_VDACS_32314_v3.pdf (April 22, 2021, committee meeting); and https://townhall.virginia.gov/L/GetFile.cfm?File=meeting\48\32630\Minutes_VDACS_32630_v1.pdf (June 29, 2021, committee meeting).

⁷See https://townhall.virginia.gov/l/viewcomments.cfm?commentid=99895.

⁸Agency Background Document (ABD), page 4. See https://townhall.virginia.gov/l/GetFile.cfm?File=48\5747\9551\AgencyStatement_VDACS_9551_v2.pdf.

⁹The form can be found at https://www.vdacs.virginia.gov/pdf/noxious-weed-permit.pdf.

¹⁰Email dated April 10, 2023.

¹¹Email dated April 19, 2023.

¹²Pursuant to § 2.2-4007.04 D: In the event this economic impact analysis reveals that the proposed regulation would have an adverse economic impact on businesses or would impose a significant adverse economic impact on a locality, business, or entity particularly affected, the Department of Planning and Budget shall advise the Joint Commission on Administrative Rules, the House Committee on Appropriations, and the Senate Committee on Finance. Statute does not define "adverse impact," state whether only Virginia entities should be considered, nor indicate whether an adverse impact results from regulatory requirements mandated by legislation.

¹³Pursuant to § 2.2-4007.04, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

¹⁴If the proposed regulatory action may have an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include: (1) an identification and estimate of the number of small businesses subject to the proposed regulation, (2) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the proposed regulation, including the type of professional skills necessary for preparing required reports and other documents, (3) a statement of the probable effect of the proposed regulation on affected small businesses, and (4) a description of any less intrusive or less costly alternative methods of achieving the purpose of the proposed regulation. Additionally, pursuant to § 2.2-4007.1 of the Code of Virginia, if there is a finding that a proposed regulation may have an adverse impact on small business, the Joint Commission on Administrative Rules shall be notified.

¹⁵"Locality" can refer to either local governments or the locations in the Commonwealth where the activities relevant to the regulatory change are most likely to occur.

¹⁶Section 2.2-4007.04 defines "particularly affected" as bearing disproportionate material impact.

Agency's Response to Economic Impact Analysis: The agency concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The proposed amendments add 12 plant species to the current noxious weeds list - one to the list of Tier 2 noxious weeds and 11 to the list of Tier 3 noxious weeds.

2VAC5-317-20. Tier 1, Tier 2, and Tier 3 noxious weeds.

A. The following plants are hereby declared Tier 1 noxious weeds:

1. Salvinia molesta, Giant salvinia.

2. Solanum viarum, Tropical soda apple.

3. Heracleum mantegazzianum, Giant hogweed.

B. The following plants are hereby declared Tier 2 noxious weeds:

1. Imperata cylindrica, Cogon grass.

2. Lythrum salicaria, Purple loosestrife.

3. Ipomoea aquatica, Water spinach.

4. Vitex rotundifolia, Beach vitex.

5. Oplismenus hirtellus spp. undulatifolius, Wavyleaf basketgrass.

6. Corydalis incisa, Incised fumewort.

7. Trapa bispinosa, Two-horned trapa.

C. The following plants are hereby declared Tier 3 noxious weeds:

1. Ailanthus altissima, Tree of heaven.

2. Ampelopsis brevipedunculata, Porcelain berry.

3. Celastrus orbiculatus, Oriental bittersweet.

4. Hydrilla verticillata, Hydrilla.

5. Persicaria perfoliata, Mile-a-minute weed.

6. Alliaria petiolata, Garlic mustard.

7. Dioscorea polystachya, Chinese yam.

8. Elaeagnus umbellata, Autumn olive.

9. Ficaria verna, Lesser celandine.

10. Lespedeza bicolor, Bicolor lespedeza.

11. Lonicera maackii, Amur honeysuckle.

12. Lonicera japonica, Japanese honeysuckle.

13. Phragmites australis, Common reed.

14. Pueraria montana, Kudzu.

15. Reynoutria japonica, Japanese knotweed.

16. Ulmus pumila, Siberian elm.