Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses.
Affected constituencies include commercial caves and mines, private cave and mine owners, recreational cavers, wildlife rehabilitators, animal control operators, the agricultural industry, the conservation community, wind utilities, WI Department of Transportation (WDOT) and homeowners. Concerns will likely include how listing the bats will affect current activities. Many of these potential concerns will be addressed through a broad incidental take permit/authorization and voluntary agreements so that the listing does not have a significant economic impact on a substantial number of small businesses.
A broad incidental take permit/authorization would be created, as provided for under s.
29.604, Wis. Stats. The broad incidental take permit/authorization would allow for the incidental taking of state listed cave bats that may occur as a result of specific public health concerns, bat removals, building demolitions, forestry activities, bridge demolitions, miscellaneous building repairs and wind energy development projects (see the “Broad Incidental Take Permit/Authorization for Cave Bats" attachment for more information). Some take of bats may still occur as a result of these activities, however take will be minimized by following specific minimization measures and the department has concluded that the projects covered under this permit are not likely to jeopardize the continued existence and recovery of the state population of these bats or the whole plant-animal community of which they are a part; and has benefit to the public health, safety or welfare that justifies the action. This incidental take permit/authorization is only needed when a bat is present or suspected to be present (e.g., Natural Heritage Inventory report of bats in the area, evidence of bat presence).
Environmental Analysis
The Department has made a preliminary determination that this action does not involve significant adverse environmental effects and does not need an environmental analysis under ch.
NR 150, Wis. Adm. Code. However, based on the comments received, the Department may prepare an environmental analysis before proceeding with the proposal. This environmental review document would summarize the Department's consideration of the impacts of the proposal and reasonable alternatives.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
State fiscal effect
The proposed rule package will require time by DNR staff to prepare the rule and administer rule hearings. Endangered Resources review staff will likely see an increase in time associated with the listing of bats. There will be an increase in the time associated with incidental take permits. It is assumed there will not be a significant increase in staff time, and that this time can be covered by existing appropriations. Staff at the Public Service Commission and the Office of Energy will see an increase in staff time associated with issues surrounding bats and wind farms. These agencies will also see an increase in time associated with incidental permits. It is assumed there will not be a significant increase in staff's time at these agencies.
Local government fiscal effect
It is assumed there will be minimal cost increases to local governments as a result of this rule change. As an example of these minimal costs, local public works departments will need to distribute new local construction permits to include the listing of bats.
Private sector fiscal effect
It is assumed the Department will be issuing a broad incidental take permit associated with the listing. Many private companies such as pest control operators and construction companies will be covered under this broad incident take permit. The impact to wind farms will be determined by the location. Depending on the impact to bats, wind farms may be required to report damages to bats or to perform a determined mitigation.
State fiscal effect
Indeterminate. Increase Costs — May be possible to absorb within agency's budget.
Local government fiscal effect
Indeterminate. Increase Costs — Permissive.
Types of local governmental units affected
Towns, Villages, Cities, Counties.
Agency Contact Person
Erin Crain, EIM Section Chief
PO Box 7921
101 S. Webster Street, ER/6
Madison, WI 53707-7921
Phone: (608) 267-7479
Natural Resources
Fish, Game, Forestry, Recreation, Chs.
NR 1—
DNR # IS-42-10(E) and IS-41-10
NOTICE IS HEREBY GIVEN that pursuant to ss.
23.09 (2),
23.22,
227.11 (2) and
227.24, Stats., the Department of Natural Resources will hold public hearings on the emergency and permanent rule proposals to list the fungus,
Geomyces destructans, as a prohibited invasive species in s.
NR 40.04 (2), Wis. Adm. Code. The hearings will be held concurrently with hearings to list four cave bat species as threatened in s NR 27.03 (3), Wis. Adm. Code.
Hearing Information
The hearings will begin at 11:00 am at the locations listed below. Following a brief informational presentation, public comments and statements will be accepted.
October 25, 2010 Conference Room 1
DNR Oshkosh Service Center
625 E. County Rd Y
Oshkosh
October 26, 2010 Glaciers Edge and Gathering Waters
Rooms
DNR South Central Region Hdqrs.
3911 Fish Hatchery Road
Fitchburg
October 28, 2010 Room 185
DNR West Central Region Hdqrs.
1300 W. Clairemont
Eau Claire
October 29, 2010 Conference Room 1
DNR Northern Region Hdqrs.
107 Sutliff Avenue
Rhinelander
Pursuant to the Americans with Disabilities Act, reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Please call Ms. Rowe at (608)266-7012 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rule and Submittal of Written Comments
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Stacy Rowe, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to
stacy.rowe@wisconsin.gov. Comments may be submitted until
November 1, 2010. Written comments whether submitted electronically or by U.S. mail will have the same weight and effect as oral statements presented at the public hearings. A personal copy of the proposed rule and fiscal estimate may be obtained from Ms. Rowe.
Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Explanation of agency authority
The principal authority for the department's invasive species rules is s.
23.22 (2) (a) and
(b) 6., Stats., which requires the department to establish a statewide program to control invasive species in this state and directs the department to promulgate rules to identify, classify and control invasive species for purposes of the program, which may include procedures and requirements for issuing permits to control invasive species. In order to fulfill this broad duty, the department adopted ch.
NR 40 to provide it with all of the tools that are required to control invasive species, wherever found in the state, including regulation of the possession, transportation, transfer and introduction of specific invasive species, general preventive measures designed to restrict pathways by which humans commonly spread or introduce invasive species, authority to enter property in order to inspect, survey and control invasive species, and authority to recover the state's costs when it must carry out necessary control measures because responsible parties do not comply with department orders to control invasives themselves.
Section
23.11 (1), Stats., delegates to the department such further powers as may be necessary or convenient to enable it to exercise the functions and perform the duties required of it by ch.
23, Stats., and by other provisions of law.
Invasive species have caused environmental and economic damage and threaten human health, and will continue doing so unless adequate control measures are adopted and implemented. The general legislative delegation to the department of all necessary or convenient powers set out in s.
23.11 (1), Stats., combined with the broad directive in s.
23.22 (2) (a) and
(b) 6., Stats., to control invasive species in this state give the department sufficient power to adopt and revise as needed rules for the protection of public health, safety, welfare and the environment, but particularly for the promotion of public welfare, convenience and general prosperity. The department's exercise of legislatively delegated police powers, as embodied in its invasive species rules, has its basis in the inherent power and duty of government to protect and promote the life, comfort, safety and welfare of society.
Section
23.09 (2) (intro), Stats., grants the department general authority to adopt rules for the protection, development and use of forests, fish and game, lakes, streams, plant life, flowers and other outdoor resources in this state. Section
23.091, Stats., authorizes the department to acquire, develop, operate and maintain state recreation areas, to establish use zones within state recreation areas providing for the full range of recreational uses, including hunting and fishing, and to promulgate rules to control uses within zones and limit the number of persons using any zone. Section
23.11 (1), Stats., gives the department the authority to have and take the general care, protection and supervision of all state parks, of all state fish hatcheries and lands used therewith, of all state forests, and of all lands owned by the state or in which it has any interests.
Section
23.28 (3), Stats., prohibits the department from allowing any use of a designated state natural area which is inconsistent with or injurious to its natural values, and authorizes the department to establish use zones, control uses within a zone and limit the number of persons using zones in designated state natural areas. Section
27.01 (2) (j), Stats., grants the department authority to promulgate rules necessary to govern the conduct of state park visitors, and for the protection of state park property, or the use of facilities, including the use of boats and other watercraft on lakes or rivers within the limits of a state park, and the use of roads, trails or bridle paths.
Section
29.039 (1), Stats., authorizes the department to develop conservation programs to ensure the perpetuation of nongame species, require harvest information and establish limitations relating to taking, possession, transportation, processing and sale or offer for sale, of nongame species. “Nongame species" is defined as any mammal, bird, fish, or other creature of a wild nature endowed with sensation and the power of voluntary motion that is living in the wild and that is not classified as a game fish, game animal, game bird or furbearing animal.
Section
227.11 (2) (a), Stats., expressly confers rulemaking authority on the department to promulgate rules interpreting any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute. The department considers the rules created by this Order to be necessary to effectuate the purposes of s.
23.22, Stats.
Plain language analysis
The proposed changes to ch.
NR 40, Wis. Adm. Code, will add the fungus,
Geomyces destructans, to the list of prohibited invasive species, allowing the department to effectively manage its spread and limit human transport.
Existing rules ban the transportation (including importation), possession, transfer (including sale) and introduction of invasive species that are listed or identified as “prohibited", with certain exceptions. Transportation, possession, transfer and introduction without a permit are exempt if the department determines that the transportation, possession, transfer or introduction was incidental or unknowing, and was not due to the person's failure to take reasonable precautions. Existing rules authorize the department to enter property with the permission of the owner or person in control of the property and, if permission cannot be obtained, to seek an inspection warrant from the Circuit Court. Entry is only for the purpose of inspection, sampling or control of prohibited invasive species.
The current rules also allow the department to enter into consent orders with persons who own, control or manage property where prohibited invasive species are present to implement approved control measures, and to issue unilateral orders for control purposes unless the person was not responsible for the presence of the prohibited invasive species. If a control order is not complied with and the department undertakes control measures, the current rules allow for cost-recovery by the department for the expenses it incurred.
Related statute or rule
Related statutes or rules include but are not limited to the following provisions which, to varying degrees, may apply to the identification, classification, control or other regulation of species that are invasive, or to conduct that may result in the introduction or spread of invasive species:
Statutory section Title [or subject]
15.347 (18) Invasive species council.
23.24 Aquatic plants.
29.011 Title to wild animals.
29.604 Endangered and threatened species protected.
29.614 Scientific collector permit.
29.885 Removal of wild animals.
29.924 Investigations; Searches.
30.07 Transportation of aquatic plants and animals;
placement of objects in navigable waters.
94.01 Plant inspection and pest control authority.
94.02 Abatement of pests.
94.03 Shipment of pests and biological control
agents; permits.
94.69 Pesticides; rules.
169.04 Possession of live wild animals.
169.06 Introduction, stocking, and release of wild
animals.
169.07 Exhibition of live wild animals.
169.08 Propagation of wild animals.
169.10 Sale and purchase of live wild animals.
169.11 Harmful wild animals.
Comparison with federal regulations
We are not aware of any existing or proposed federal regulations that would list the fungus, Geomyces destructans, as an invasive species.
Comparison with rules in adjacent states
Wisconsin appears to be unique in taking the approach of listing the fungus, Geomyces destructans, as an invasive species; we are not aware of any other states or provinces that have taken similar actions. We don't know of any other states that have a similar mechanism — an invasive species rule — for listing the fungus. We are also not aware of any existing or proposed federal regulations that would list the fungus, Geomyces destructans, as an invasive species.
Summary of factual data and analytical methodologies
White-nose Syndrome (WNS) is a disease responsible for unprecedented mortality in cave hibernating bats and is identified by the white fungus (Geomyces destructans) that grows on the nose, ears, and muzzle and/or wing membrane. Infected bats exhibit atypical behavior, such as daytime activity during winter hibernation, which rapidly depletes stored energy reserves. Wing damage and emaciation are also common.
WNS has been documented in fourteen states and two Canadian provinces, is spreading rapidly from the first affected sites (up to 800 miles per year). The speed at which WNS is spreading necessitates immediate action on the part of the department to list the white-nose fungus as a prohibited invasive species. Based on the current location and known rate of spread of the disease, it is likely that WNS will reach Wisconsin as early as January 2011.
This rule was developed with the assistance of the Bureaus of Endangered Resources and Legal Services and with input from the Wisconsin Council on Invasive Species (Council). The Bureau of Endangered Resources prepared an Issue Brief for the Council, which provided background on white-nose syndrome, the extent and serious nature of the threat of the disease to Wisconsin's cave bats, and the need for listing Geomyces destructans as a prohibited invasive species.
Analysis and supporting documents used to determine effect on small business
None.
