Oak Wilt Proposed Modifications

[Adam Benefield]

Based on input from Council members, Texas A&M fore ged citizens, I am proposing the following amendments to the Oak Wilt Ordinance. These changes aim to address the key concerns and suggestions raised, while ensuring the ordinance remains effective, reasonable, and in the best interest of our community.

While not every point of feedback has been fully incorporated, the majority of the ordinance has been modified to accommodate the most pressing questions and concerns. I believe these revisions strike a balance between being citizen-friendly and maintaining the necessary compliance measures to protect our oak trees.

Sec 6.212 Oak Wilt Control

1. Purpose.

The provisions of this article are deemed to be necessary to promote the health, safety, and general welfare of the residents of the City.

(b) Definitions.

Words used and not defined in this article shall have their ordinarily accepted meaning. For the purpose of this article, the following words and phrases shall have the meaning respectively ascribed to them by this section:

Diseased Trees.

Live oak and red oak trees or wood from either species that are infected with oak wilt disease; and a red oak tree or wood from a red oak tree, which is dead or partially alive, but infected with such disease and to which the bark is still attached.

Proposed changes:

• Expand definition to cover all oak trees, not just live oaks and red oaks
• Remove requirement for bark to still be attached to dead or partially alive oaks

Forester.

Any individual qualified in the area of urban forestry, botany or horticulture employed or engaged by the City including but not limited to representatives from the Texas Forestry Service, Travis County or other agency.

Public Nuisance.

Red and live oak trees or wood that are determined to be infected with the fungus which causes Oak Wilt Disease (Ceratocystis Fagacearum) ("oak wilt"); a dead red oak tree or wood from a red oak tree, that was or is, infected with Oak Wilt Disease; and diseased trees and wood as defined below. Pursuant to Chapter 342, Texas Health and Safety Code, diseased trees are deemed a public nuisance.

Proposed changes:

• Simplify definition to "All Oak Trees that are infected with Oak Wilt Disease are hereby declared and determined a public nuisance.”

Contractor.

Any person, firm, or corporation engaged in the business of tree trimming, removal, or treatment for compensation.

Proposed additions:

• Add definition for "Live Oak Mott" as "A group of live oak trees connected via a shared root system, typically extending up to 200 feet.”

(c) Abatement of Nuisance by Owner of Property.

(1) Red oak and live oak trees that are infected with Oak Wilt Disease, a dead red oak tree and wood from a red oak tree that was infected with Oak Wilt Disease, and all other trees and wood diseased with Oak Wilt Disease are hereby declared and determined to be a public nuisance.

It shall be unlawful for an owner of any property within the City, or its Extraterritorial Jurisdiction, to permit or maintain on such lot or parcel any diseased trees which is a public nuisance as defined herein. It shall be the duty of the owner, within fourteen (14) calendar days from notice given under subsection(f) below to cause the diseased trees to be treated or removed and destroyed. Such removal, destruction, or treatment shall be completed under the supervision and direction of the City.

Proposed changes:

• Expand nuisance declaration to all oak trees infected with oak wilt
• Focus specifically on red oak trees for mandatory removal if infected/suspected
• Extend owner abatement period from 14 to 30 days after notice

(2) Should the property owner fail to abate the public nuisance within fourteen (14) calendar days following the receipt of notification, the City shall have the right to cause the removal and destruction of the diseased trees. The full cost of such removal and destruction shall be assessed to the owner of the property. Should the property owner fail to pay the City within thirty (30) days from the date of demand, the City may at its discretion file a lien against the property in the amount of all costs incurred by the City plus interest. The assessment of expenses and lien shall follow the procedures established in Chapter 342 of the Texas Health and Safety Code.

Proposed changes:

• Extend city abatement period from 14 to 30 days to match owner period
• Specify city abatement and lien procedures only apply to red oaks

 

[Adam Benefield]

(d) Enforcement.

The City Manager or their designee is charged with the enforcement of this article and shall perform the duties as set forth herein. The County is also authorized and requested to enforce this article within the City. The City Manager or their designee shall coordinate and cooperate with the forester to the fullest reasonable extent.

(e) Inspections.

Save and except as provided herein, permission of the owner, occupant, or person in control of any premises shall be necessary for entry onto the subject premises by city personnel or forester pursuant to this article. If such entry is requested and refused, and the City or forester has probable cause to believe there exists on the subject premises a public nuisance, the City code enforcement official or forester shall go before a municipal court judge of the City and request a search warrant. The purpose of that warrant shall be to determine the presence of a public nuisance and to obtain such specimens of trees as are required for the purposes of analysis to determine whether the same are infected with Oak Wilt.

(f) Notice to Owner.

(1) If, upon inspection it is determined that a tree or oak wood is infected with Oak Wilt and if the City or forester determines that such tree or any wood thereof is a public nuisance as provided herein, the City shall serve or cause to be served upon the owner of record of the lot or parcel of land on which that diseased tree is located, a written notice requiring such owner to comply with the provisions of this article including but not limited to the removal and destruction of any diseased tree. (2) Such service of notice shall be by personal service or certified mail, return receipt requested if the owner of the lot or parcel of land on which the diseased tree is located is a resident of the City. If the owner is temporarily absent from his residence or an owner is determined to be a non-resident, written notice shall be served by certified mail addressed to the named person at the address indicated on the most recent tax appraisal records and by posting notice of the violation on the property at the point of ingress. Certified mail returned as "unclaimed" or "refused" shall be deemed delivered.

(g) Payment of Cost.

The City Council may appropriate money in the annual budget each year for Oak Wilt suppression. The Lago Vista Property Owners' Association has indicated a willingness to share equally with the City in these costs and may contribute money for this purpose. These monies may be used to match state and federal funds to pay for the cost of Oak Wilt suppression. The owner of any lot or parcel of land within the City, and its Extraterritorial Jurisdiction is and shall be responsible to pay for the removal, destruction or treatment of any diseased tree when it has been determined the diseased tree or wood is a public nuisance.

(h) Tree Trimming Personnel.

Personnel hired or contracted to trim, cut, treat or remove diseased tree on any improved or unimproved property shall be, or shall be working under the direct supervision of a competent urban forester, botanist or horticulturist familiar with the identification and control of Oak Wilt Disease. The name, address and telephone number of all such personnel shall be filed with the City Secretary for record keeping purposes.

Proposed changes:

• Allow property owners to self-perform abatement if following city guidelines
• Require all personnel handling diseased trees to adhere to city sterilization and safety standards
• Have city provide public education resources and training

1. Sterilization of Equipment Used for Trimming and Cutting. Treating or removing of a diseased tree will be sterilized after each tree is completely cut and before proceeding to the next tree. A solution of nine parts water to one part bleach, or denatured methyl-alcohol, or isopropyl alcohol, or household disinfectant is recommended for sterilization of all trimming equipment. Equipment shall be sterilized after each cutting.

Proposed changes:

• Simplify to "Equipment used for treating or removing a diseased tree must be sterilized after each use. Acceptable methods include bleach solutions, alcohol-based disinfectants, or other effective measures as outlined in City guidelines.”

(j) Oak Wilt Prevention.

In order to help prevent the spread of Oak Wilt Disease, the following measures shall be required:

1. The trimming of limbs and branches on live oak or red oak trees shall be prohibited annually between February 1st and June 30th of each calendar year.
2. The City Manager or their designee may approve exceptions to address public safety and welfare concerns, including damaged limbs resulting from storms or similar extraordinary circumstances.
3. Any person(s) or company licensed by the City to perform tree trimming or removal work who discovers or suspects oak wilt infestation or an infected oak tree shall report that information to the City Manager or their designee by the next business day.

Proposed Changes:

• Change section title to "Oak Wilt Prevention and Treatment"
• Expand seasonal oak pruning prohibition to all oak species
• Add requirement to always paint wounds immediately after any cuts, year-round
• Add requirement to remove and dispose of infected red oaks within 30 days of notice
• Prohibit storing infected red oak wood for firewood use - burn, bury or chip instead
• Specify trenching as only way to stop spread in live oak motts - 4ft deep, 100ft radius
• Allow propiconazole fungicide injections to preserve high-value trees per A&M guidelines
• Authorize city to abate nuisances and recover costs from non-compliant property owners
• Have city conduct public education and outreach on ordinance requirements

(k) Treatment and Abatement Requirements (1) Within fourteen (14) calendar days after being notified of the presence of an infected tree on their property, property owners must remove and properly dispose of the tree, or provide treatment to control the disease afflicting the tree by a qualified arborist. (2) If any person(s), after notice, fails to remove and properly dispose of any tree infected with Oak Wilt that constitutes a public nuisance, the City at its sole discretion, may: Do the work necessary to abate the nuisance; Charge the expenses to the owner of the property which will be the personal liability of the property owner, or; The City Council may assess all expenses incurred against the real property.

Proposed to merge this section into expanded Section (j) above.

(l) Prevention Guidelines: The following prevention methods shall be followed: (1) Avoid pruning during high-risk months which is between February 1st and June 30th of each calendar year. (2) Treat wounds if pruning is necessary during high-risk months by immediately applying tree wound dressing or latex paint.
(3) Sterilize pruning equipment between trees with denatured methyl-alcohol, isopropyl alcohol, or household disinfectant. (4) Handling firewood carefully by burning all firewood before spring and never storing unseasoned oak wood from infected trees near healthy oaks. (5) Use only EPA registered pesticides that carry directions for home and garden use. (6) The City Manager or their designee, from time to time, shall display ordinance information on the City's public electronic sign, and conduct citizen outreach programs to educate residents and contractors.

Proposed to move seasonal pruning prohibition to Section (j) and remove remaining guidelines.

(m) Penalties: Violations of this article by individual property owners shall be subject to Section 1.109 of this Code with fines not to exceed $500.00 per tree. Violations of this article by Contractor(s) shall be subject to a fine not to exceed $1,000.00 per tree. Each day the violation continues to occur shall constitute a separate offense.

Sec 6.214 Penalties.

It shall be unlawful for any person, firm or corporation to violate any of the provisions of this article. Any person convicted of violating any term or provision of this article shall be guilty of a misdemeanor and fined in accordance with the general penalty provision set forth in Section 1.109 of this code for each and every such offense and for each and every day or portion thereof that such offense occurs or is maintained shall be a separate offense.

Proposed changes:

• Merge Section (m) penalties into Section 6.214 and clarify that penalties apply specifically to violations of oak wilt prevention measures, not infected tree removal provisions which are covered separately
• Specify that fines are per tree and per day for each offense
• Keep $500 per tree fine for property owner prevention and treatment violations
• Keep $1000 per tree fine for contractor prevention and treatment violations

 

[Paul Roberts]

Adam, I support these changes, thanks for bringing this forward.

 

[Adam Benefield]

Thank you sir.

 

[Norma Owen]

Adam, thank you for your work on this ordinance. I support your recommendations and appreciate the comprehensive approach to addressing Oak Wilt suppression. However, I remain concerned about the potential for a rigid enforcement process. Specifically, I would like to ensure that guidance or education is conveyed to judges and prosecutors to consider financial difficulties or extraordinary circumstances that might prevent a resident from promptly addressing a diseased tree. Providing residents with a resource listing for financial assistance and remediation support would be a valuable addition to this ordinance.

Perhaps added to the notification clause:

"While the owner of any lot or parcel of land within the City and its Extraterritorial Jurisdiction is responsible for the removal, destruction, or treatment of any diseased tree deemed a public nuisance, the City recognizes that financial or extraordinary personal circumstances may constrain a resident's ability to comply. In such cases, the City shall provide a resource guide that includes potential financial assistance programs, partnerships with the Lago Vista Property Owners' Association, and state or federal matching funds available for Oak Wilt suppression. The intent is to ensure that residents are supported in addressing public nuisances in a manner that is equitable and sensitive to individual hardships."

 

[Norma Owen]

Adam, upon re-reading your proposed ordinance, I noticed that the fines pertain specifically to prevention and treatment rather than abatement. I wanted to express my gratitude once again for the time and effort you’ve dedicated to safeguarding our treasured habitat in Lago Vista. Your commitment to this cause is greatly appreciated.

 

[Norma Owen]

Adam, I look forward to passing this item on Consent February 6th once the your above edits are posted and brought before us.

 

[Adam Benefield]

Please find attached a near-final draft of the Oak Wilt Ordinance. This version incorporates significant changes based on input from Texas A&M, City Council, and the community. The proposal will be reviewed once more by foresters for their professional insight before submission.

Key modifications include:

• Extending abatement deadlines to 30 days
• Clarifying restrictions on official property searches
• Allowing property owners to remove infected trees themselves
• Relaxing firewood limitations to Red Oak wood only
• Fines cover prevention measure infractions, not abatement
• Fines changed from per-day to per-incident

Liens and misdemeanors are standard enforcement mechanisms. Liens allow the city to recoup costs for services on private property, preventing taxpayer subsidization. Enforceable fines, like parking tickets, are misdemeanors by definition. The ordinance does not mention jail time or imprisonment.

I hope you will support this ordinance. Please let me know if you have any further questions.

 

[Adam Benefield]

Here is the proposal to Chapter 10 so the ETJ is included. Please let me know your thoughts.

 

[Norma Owen]

I’m happy to support the revised Oak Wilt Ordinance that you’ve thoughtfully rewritten. The time and care you invested in listening to extensive feedback and incorporating it into the revisions is truly remarkable, and I deeply appreciate your effort. Thank you for your dedication—I look forward to voting yes when this item comes before the Council.

 

[Adam Benefield]

Thank you Councilor Owen, I truly appreciate it.

 

[Norma Owen]

One additional thought: I’d like to propose asking Chief Boshear to direct Ordinance Enforcement, within staff capacity and the tools available, to track and report instances of Oak Wilt and any related violations to the Council. This way, if an outbreak is identified, the city and community can be promptly alerted, allowing us to take proactive measures to prevent the spread of the disease.

 

[Adam Benefield]

Great idea.