Petitioner urges VDACS to include in 2VAC5-317 a more comprehensive list of non-native invasive species based on the Department of Conservation and Recreation list of invasive alien plant species in our state. Species on this list currently not offered for sale should be banned from future sales; plants on this list that are currently for sale should be phased out from sale over time. If the Commonwealth of Virginia is unwilling to take such steps to control non-native invasive species, then local jurisdictions should be permitted to undertake eradication and suppression efforts.

The Board of Agriculture and Consumer Services will consider this request at its next scheduled meeting following the public comment period.  This meeting will occur on May 21, 2015.

The Board of Agriculture and Consumer Services (Board) denies the petitioner’s request for rulemaking for the following reasons:

The Regulations for Enforcement of the Noxious Weeds Law, 2VAC5-317, was established pursuant to Virginia’s Noxious Weeds Law, Section 3.2-800 et seq. of the Code of Virginia.  The Law defines the term "noxious weed” as "…any living plant, not widely disseminated, 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 or the economy.”  The vast majority of the invasive plant species on the Department of Conservation and Recreation’s Virginia Invasive Plant Species List do not meet the statutory definition as noxious weeds, thus the Board’s denial of the petitioner’s request.

The Board also points out that the regulation already provides a mechanism, through the Noxious Weeds Advisory Committee, for the review and recommendation of candidate species for classification as Tier 1 or Tier 2 noxious weeds.

The Noxious Weeds Law does not include specific provisions that allow localities to ban the sale and distribution of plant species within their boundaries.