Rule-Making Notices
Notice of Hearing
Natural Resources
(DNR # SS-04-12)
NOTICE IS HEREBY GIVEN THAT pursuant to ss.
227.16 and
227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on amendments to Chapter
NR 40, relating to Chapter
NR 40 including clarification to the language and changes to the species listed under sections
NR 40.04 (2) and
40.05 (2), regarding Wisconsin's regulated invasive species list, at the time(s) and location(s) listed below.
Hearing Information
Date: Tuesday, June 17, 2014*
Time: 4:00 p.m.
Location: Wisconsin Natural Resources Building
101 S. Webster Street
Room G09
Madison, WI 53707
*The public hearing on June 17, 2014 will be webcasted live for those who are unable to participate in person. To request a
webcast link, please contact Terrell Hyde by noon on June 16, 2014, at
DNRInvasiveSpecies@wisconsin.gov or by calling (608) 264-9255.
Date: Wednesday, June 18, 2014
Time: 4:00 p.m.
Location: Wisconsin Natural Resources Service
Center — Green Bay
Lake Michigan Room
2984 Shawano Avenue
Green Bay, WI 54313
Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Terrell Hyde, Department of Natural Resources, Bureau of Natural Heritage Conservation, 101 S. Webster St, Madison, WI, 53707-7921; by E-mail to
DNRInvasiveSpecies@wisconsin.gov or by calling (608) 264-9255. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Availability of the proposed rules and fiscal estimate
The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the
Administrative Rules System Web site which can be accessed through the link https://health.wisconsin.gov/admrules/public/Home. If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Terrell Hyde, Department of Natural Resources, Bureau of Natural Heritage Conservation, 101 S. Webster St, Madison, WI, 53707-7921; or by calling (608) 264-9255.
Submitting Comments
Comments on the proposed rule must be received on or before June 30, 2014. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:
Terrell Hyde
Department of Natural Resources
Bureau of Natural Heritage Conservation
101 S. Webster St, Madison, WI 53707-7921
Fax: 608-266-2925
Analysis Prepared by the Department of Natural Resources
Statutes interpreted
In promulgating this rule, s.
227.11 (2) (a), Wis. Stats., has been interpreted as allowing the department the authority to create and amend rules. Section
23.22 (2) (a) and
(b) 6., Wis. Stats., has been interpreted as allowing the department the authority to create and amend the list of invasive species in Wisconsin and create related provisions, ch.
NR 40, Wis. Admin. Code.
Statutory authority
Explanation of agency authority
Section
23.22 (2) (a) and
(b) 6., Wis. Stats., grants rule-making authority for regulation of invasive species.
Related statutes or rules
Section
23.22 (2) (b) 6., Wis. Stats., required the department to establish an invasive species rule. Chapter
NR 40, Wis. Admin. Code, provides the lists of invasive species and associated requirements for preventing the introduction and spread of invasive species.
Plain language analysis
The department's Invasive Species Team worked with the Wisconsin Invasive Species Council and affected stakeholders to review and propose revisions to ch.
NR 40, Wis. Admin. Code, relating to the lists of regulated invasive species.
Revisions classify additional invasive species into existing categories established in ch.
NR 40, Wis. Admin. Code, making them subject to existing administrative rules and statutes that regulate the introduction, possession, transfer, and transport of invasive species in order to prevent them from becoming established in Wisconsin or to prevent already-established invasive species from spreading within the state.
In 2009, during the public input and initial rule drafting of ch.
NR 40, it was recognized that many additional species may need to be evaluated and, if appropriate, categorized and listed under this rule. Most of these species are used by some sector of society and require input from the affected stakeholders. The proposed revisions in this Board Order will add species of plants, vertebrates, and invertebrates to the invasive species rule, and will clarify rule language, facilitate compliance, and improve organization of the rule.
A summary of the proposed revisions follows, ordered by Board Order section and grouped by the type of revision. Additional supporting documents including the literature reviews for each of the proposed invasive species are available on the DNR's website (dnr.wi.gov) keyword “invasives."
Section 1 creates a definition for crayfish in ch.
NR 40.
Section 2 revises the following ch.
NR 40 definitions:
•
The definition of “disposal" is amended to include the consumption of an invasive species as food or other purposes that do not lead to the establishment, introduction, or spread of the species as disposal.
•
The note under the definition of “invasive species" is amended to clarify that the definition of “invasive species" does not apply to organisms that are dead.
•
The definition of “nonnative" or “nonnative species" is amended to include genetically modified (GM) variants of both native and nonnative fish and crayfish. GM fish are available for sale or may soon be available for aquaculture. Potential GM alterations, such as increased rate of growth, substantially alter how these organisms interact with the environment. The invasive species rule defines what it means to be genetically modified but does not differentiate GM fish from their parent species. Given that the risk they pose may differ, a mechanism to evaluate them separately is needed. These proposed revisions would allow for the continued sale of nonviable genetically modified aquarium fish such as the “GloFish™".
•
The definitions of “nonnative fish species in the aquaculture industry" and “nonnative viable fish species in the aquarium trade" are amended to exclude GM variants of fish and crayfish of the species listed for the same reasons listed above in the “nonnative" definition amendment.
•
The definition of “pet" is amended to exclude fish, crayfish and other aquatic invertebrates. Due to the risk posed by fish, crayfish and by other aquatic invertebrates the definition is revised to exclude these organisms from the exemption provided for pets.
•
The definition of “species" is amended to exclude GM fish and crayfish species, cultivars, hybrids, and sub-specific taxa for the same reasons listed above in the “nonnative" definition amendment.
•
The definition of “wild animal" is amended to exclude other aquatic invertebrates.
Sections 2 and 30 remove eastern and western mosquitofish from the list of prohibited species under section
NR 40.04 and adds them to the list of “established nonnative fish species and established nonnative crayfish species" as defined in ch.
NR 40.02. “Established nonnative fish species and established nonnative crayfish species" are regulated as a restricted species under ch.
NR 40.05 (c) (1). Best management practices (BMPs) to reduce the risk of importing mosquitofish (
Gambusia affinis) have been made available, but concerns remain because the BMPs do not provide a guarantee against possible enforcement action. In order to accommodate the use of imported bait that may be contaminated with the species, these revisions move the species from the prohibited category to the in the restricted fish category, “established nonnative fish species." This revision will not in itself authorize possession of mosquitofish, but would allow the department to permit possession in bait shipments and registered fish farm raceways, subject to specified conditions. This would enable the department to address concerns regarding the potential for dispersal of mosquitofish by bait dealers through additional requirements in permit conditions.
Section 3 clarifies the note on non-regulated species classification and removes the reporting and in-store education suggestions. Additionally, language on the beneficial use of non-restricted invasive species is removed as it creates the false impression that any beneficial use will exempt a species from listing.
Sections 4 and 7 renumber the initial species listed in the ch.
NR 40 Prohibited Category to maintain alphabetical order.
Sections 5, 8, 10, 12, 15, 17, 19, 21, 23, 27, 29, 33, and 35 add new species to the ch.
NR 40 Prohibited Category. The below species proposed for addition to the prohibited category are invasive species that the department has determined are likely to survive and spread if introduced into the state, potentially causing economic or environmental harm or harm to human health, but which are not found in the state or in those regions of the state where the species are listed
as
prohibited
in
s.
NR 40.04 (2),
with
the
exception
of
isolated individuals,
small
populations
or
small
pioneer
stands
of
terrestrial species, or in the case of aquatic species, that are isolated to a specific watershed in the state or the Great Lakes, and for which statewide or regional eradication or containment may be feasible.
• Caulerpa taxifolia (Killer algae)
•
Achyranthes japonica (Japanese chaff flower)
•
Akebia quinata (Fiveleaf akebia or Chocolate vine)
•
Arundo donax (Giant reed)
•
Azolla pinnata (Mosquito fern)
•
Berberis vulgaris (Common barberry)
•
Cardamine impatiens (Narrow leaf bittercress)
•
Celastrus loeseneri (Asian loeseneri bittersweet)
•
Centaurea diffusa (Diffuse knapweed)
•
Centaurea repens (Russian knapweed)
•
Digitalis lanata (Grecian foxglove)
•
Dioscorea batatas or Dioscorea polystacha (Chinese yam)
•
Eichhornia azurea (Anchored water hyacinth)
•
Eichhornia crassipes (Water hyacinth, floating)
