Title of Regulation: 2VAC5-317. Regulations for the Enforcement of the Noxious Weeds Law (amending 2VAC5-317-10, 2VAC5-317-20).

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

Public Hearing Information:

July 23, 2019 - 2 p.m. - Brent and Becky's Bulbs Chesapeake Lounge, 7900 Daffodil Lane, Gloucester, VA 23061

Public Comment Deadline: September 6, 2019.

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, TTY (800) 828-1120, or email david.gianino@vdacs.virginia.gov.

Basis: Section 3.2-109 of the Code of Virginia establishes the board 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 regulations under which certain plants can be listed as 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 into 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. In addition, 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 due to associated eradication and control costs, the amendments protect the economic welfare of citizens.

Substance: The proposed regulatory action adds six plant species deemed by the board to meet the definition of "noxious weed" to the list in 2VAC5-317-20. The intent of listing these six plants as noxious weeds is to prevent further introductions or slow the spread of existing populations into the Commonwealth. In addition, the definition of "Tier 3 noxious weed" in 2VAC5-317-10 clarifies the current definition.

Issues: The six plant species recommended for listing as noxious weeds are all invasive plant species; the plant species 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 the six 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 Virginia Department of Agriculture and Consumer Services (VDACS) permit 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 Tier 3 noxious weeds that will prevent the inadvertent spread of these plants. There are no disadvantage to the public or the Commonwealth as a result of this proposed regulatory action.

Department of Planning and Budget's Economic Impact Analysis: The Board of Agriculture and Consumer Services (Board) proposes to add six plant species to the noxious weed list.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. The Board proposes to add six plant species to the noxious weed list. Noxious weeds are any living plant detrimental to crops, surface waters, including lakes, or other desirable plants, livestock, land, or other property, or that are determined to be injurious to public health, the environment, or the economy. According to the Virginia Department of Agriculture and Consumer Services (VDACS), newly added noxious weeds are non-native 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 spread rapidly and displace native plants. In addition, the habitat of wildlife may be altered as these plants invariably change the ecosystem by outcompeting and displacing native plants. Once a plant deemed as a noxious weed by the Board, it cannot be transported without first obtaining a permit. A permit may be requested and issued using electronic means such as email and usually takes a few days for VDACS to evaluate the application. There is no fee required. The permit for the movement of a noxious weed will require compliance with specific best management practices to prevent the inadvertent spread. The primary intent of the permit is to reduce the spread of noxious weeds. For example, according to VDACS, Lake Gaston is currently infested by one of the added species. A boat owner wishing to transport a boat to another lake would be required to obtain a permit and in the process would be educated that the remnants of that plant on the boat could spread it to other surface waters and be advised that the outside of the boat should be thoroughly cleaned before it is transported.

The proposed expansion of the list to include six new species should increase the number of applications for a transport permit as VDACS reports that they are widely present in Virginia. VDACS routinely relies on voluntary compliance to achieve its enforcement actions. As a result, to the extent citizens in infested areas are informed about the permit requirement and comply with it, the spread of these noxious weeds in Virginia should slow down or prevent their introduction in new areas in the first place.

Businesses and Entities Affected. VDACS is unable to estimate the number of businesses and entities who may be required to obtain a permit by the expansion of the noxious weeds list.

Localities Particularly Affected. The proposed amendments do not disproportionately affect particular localities.

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 unlikely to significantly affect the use and value of private property.

Real Estate Development Costs. The proposed amendments are unlikely to affect real estate development costs.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, 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."

Costs and Other Effects. The proposed amendments are unlikely to significantly affect costs for small businesses.

Alternative Method that Minimizes Adverse Impact. The proposed amendments do not adversely affect small businesses.

Adverse Impacts:

Businesses: The proposed amendments do not adversely affect businesses.

Localities: The proposed amendments do not adversely affect localities.

Other Entities: The proposed amendments do not adversely affect other entities.

____________________________

¹Adverse impact is indicated if there is any increase in net cost for any entity, even if the benefits exceed the costs for all entities combined.

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

Summary:

The proposed amendments add six plant species to the current noxious weed list and amend the definition of "Tier 3 noxious weed" to be "any noxious weed (i) that is present in the Commonwealth, (ii) whose spread may be slowed by restrictions on its movement, and (iii) for which successful eradication or suppression is not feasible."  

2VAC5-317-10. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Board" means the Virginia Board of Agriculture and Consumer Services.

"Business day" means a day that is not a Saturday, Sunday, or legal holiday, or a day on which state government offices are closed.

"Certificate" means a document issued or authorized by the commissioner indicating that a regulated article is not contaminated with a noxious weed.

"Commissioner" means the Commissioner of the Virginia Department of Agriculture and Consumer Services.

"Committee" means the Noxious Weeds Advisory Committee established pursuant to 2VAC5-317-100.

"Compliance agreement" means a written agreement between a person engaged in handling, receiving, or moving regulated articles and the Virginia Department of Agriculture and Consumer Services or the U.S. Department of Agriculture, or both, wherein the former agrees to fulfill the requirements of the compliance agreement and comply with the provisions of this chapter.

"Consignee" means any person to whom any regulated article is shipped for handling, sale, resale, or any other purpose.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Infested" or "infestation" means the presence of a listed noxious weed or the existence of circumstances that make it reasonable to believe that life stages of a listed noxious weed are present.

"Inspector" means an employee of the Virginia Department of Agriculture and Consumer Services or other person authorized by the Commissioner of the Virginia Department of Agriculture and Consumer Services to enforce the provisions of this chapter.

"Listed noxious weed" means any plant listed in this chapter as either a Tier 1, Tier 2, or Tier 3 noxious weed.

"Move" means to ship, offer for shipment, receive for transportation, carry, or otherwise transport, move, or allow to be moved.

"Noxious weed" means the term as defined in § 3.2-800 of the Code of Virginia.

"Noxious Weeds Law" means the statute set forth in Chapter 8 (§ 3.2-800 et seq.) of Title 3.2 of the Code of Virginia.

"Permit" means a document issued by the commissioner to provide for movement of regulated articles to restricted destinations for limited handling, utilization, processing, or scientific purposes.

"Person" means the term as defined in § 1-230 of the Code of Virginia.

"Regulated article" means any listed noxious weed or any article carrying or capable of carrying a listed noxious weed.

"Tier 1 noxious weed" means any noxious weed that is not known to be present in the Commonwealth.

"Tier 2 noxious weed" means any noxious weed that is present in the Commonwealth and for which successful eradication or suppression is feasible.

"Tier 3 noxious weed" means any noxious weed (i) that is present in the Commonwealth and not listed as a Tier 1 or Tier 2 noxious weed, (ii) whose spread may be slowed by restrictions on its movement, and (iii) for which successful eradication or suppression is not feasible.

"Waybill" means a document containing the details of a shipment of goods.

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.

C. No plant is hereby declared a Tier 3 noxious weed. 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.

FORMS (2VAC5-317)

Noxious Weed Permit Application (eff. 6/2018)