Chapter 29

subch. IX of ch. 29 SUBCHAPTER IX

MISCELLANEOUS PROVISIONS

29.601 29.601 Noxious substances.

29.601(1) (1) Explosives; stupefactives.

29.601(1)(a) (a) No person may do any of the following:

29.601(1)(a)1. 1. Take, capture or kill fish or game of any variety in any waters of this state by means of dynamite or other explosives or poisonous or stupefying substances or devices.

29.601(1)(a)2. 2. Place in any waters of this state explosives which might cause the destruction of fish or game, except when authorized by the department for the purpose of raising dead bodies, clearing a channel or breaking a log or ice jam.

29.601(1)(a)3. 3. Have in the possession or under the control of the person, upon any waters of this state, any dynamite or other explosives or poisonous or stupefying substances or devices for the purpose of taking, catching or killing fish or game.

29.601(1)(b) (b) Whoever violates this subsection shall be fined not more than $500 or imprisoned for not more than 90 days or both.

29.601(2) (2) Poison. No person may use, set, lay or prepare in any of the waters of this state any poison or any other substance deleterious to fish life.

29.601(3) (3) Deleterious substances.

29.601(3)(a) (a) No person may throw or deposit, or permit to be thrown or deposited, into any waters within the jurisdiction of the state any lime, oil, tar, garbage, refuse, debris, tanbark, ship ballast, stone, sand, except where permitted by s. 30.12 (3) (a) 1., slabs, decayed wood, sawdust, sawmill refuse, planing mill shavings or waste material of any kind, or any acids or chemicals or waste or refuse arising from the manufacture of any article of commerce, or any other substance deleterious to game or fish life.

29.601(3)(b) (b) Paragraph (a) does not apply to authorized drainage and sewage from municipalities and industrial or other wastes discharged from mines or commercial or industrial or ore processing plants or operations, through treatment and disposal facilities installed and operated in accordance with plans submitted to and approved by the department under chs. 281, 285 or 289 to 299 or in compliance with orders of the department. Any order is subject to modification by subsequent orders.

29.601(3)(c) (c)

29.601(3)(c)1. 1. Any person violating this subsection shall forfeit not more than $200. Each day of a continuing violation is a separate offense.

29.601(3)(c)2. 2. Any person who intentionally violates this subsection shall be fined not more than $200 or imprisoned not more than 90 days or both.

29.601(4) (4) Use of pesticides. The department of natural resources, after public hearing, may promulgate rules governing the use of any pesticide which it finds is a serious hazard to wild animals other than those it is intended to control, and the making of reports about the pesticide. In promulgating the rules, the department to the extent relevant shall consider the need for pesticides to protect the well-being of the general public. “Pesticide” has the meaning given in s. 94.67.

29.601(5) (5) Exceptions.

29.601(5)(a) (a) This section does not apply to any activities carried out under the direction and supervision of the department of transportation in connection with the construction, reconstruction, maintenance and repair of highways and bridges in accordance with s. 30.2022.

29.601(5)(b) (b)

29.601(5)(b)1. 1. This section does not apply to toxicants placed in the waters of a self-contained fish rearing facility or a state or municipal fish hatchery if the toxicants are necessary to the operation of the fish farm or fish hatchery.

29.601(5)(b)2. 2. This section does not apply to toxicants placed in the waters of a preexisting fish rearing facility that is an artificial body of water if the toxicants are necessary to the operation of the fish farm and the department has issued a permit under s. 283.31 for the preexisting fish rearing facility.

29.601 History History: 1971 c. 73; 1975 c. 363, 365; 1977 c. 130; 1981 c. 226 s. 13; 1983 a. 410; 1985 a. 332 s. 251 (1); 1989 a. 335; 1995 a. 227; 1997 a. 27; 1997 a. 248 ss. 448 to 457; Stats. 1997 s. 29.601; 2003 a. 118; 2005 a. 347.

29.601 Cross-reference Cross-reference: See s. 94.709 for prohibition of use of DDT and exceptions to the prohibition.

29.601 Cross-reference Cross-reference: See also s. NR 19.01, Wis. adm. code.

29.601 Note NOTE: 2005 Wis. Act 347, which affected this section, contains extensive explanatory notes.

29.601 Annotation The legislative history and language of sub. (3) indicate that the statute is concerned primarily with the discharge into navigable waters of refuse arising from manufacturing activities and does not attempt to prohibit silting caused by surface water runoff. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974).

29.601 Annotation A proposed rule prohibiting the use of the chemical 2,4,5-T, unless a permit has been obtained, is within the statutory authority of the Department of Natural Resources under sub. (4). 64 Atty. Gen. 126.

29.601 Annotation Discharging taconite tailings into the waters of Lake Superior was a violation of the Federal Water Pollution Control Act and a common-law nuisance. United States v. Reserve Mining Co., 380 F. Supp. 11 (1974).

29.604 29.604 Endangered and threatened species protected.

29.604(1) (1) Purpose. The legislature finds that certain wild animals and wild plants are endangered or threatened and are entitled to preservation and protection as a matter of general state concern. The federal endangered species act of 1973 and the Lacey act together provide for the protection of wild animals and wild plants threatened with worldwide extinction by prohibiting the importation of endangered or threatened wild animals and wild plants and by restricting and regulating interstate and foreign commerce in wild animals and wild plants taken in violation of state, federal and foreign laws. The states, however, must also assume their responsibility for conserving these wild animals and wild plants and for restricting the taking, possession, transportation, processing or sale of endangered or threatened wild animals and wild plants within their respective jurisdictions to assure their continued survival and propagation for the aesthetic, recreational and scientific purposes of future generations. The legislature finds that by restricting the taking, possession or marketing of endangered species in this state and by establishing a program for conservation and restoration of these endangered or threatened species, their potential for continued existence will be strengthened. The legislature further finds that the activities of both individual persons and governmental agencies are tending to destroy the few remaining whole plant-animal communities in this state. Since these communities represent the only standard against which the effects of change can be measured, their preservation is of highest importance, and the legislature urges all persons and agencies to fully consider all decisions in this light.

29.604(2) (2) Definitions. For purposes of this section:

29.604(2)(a) (a) “Endangered species” means any species whose continued existence as a viable component of this state’s wild animals or wild plants is determined by the department to be in jeopardy on the basis of scientific evidence.

29.604(2)(am) (am) “State agency” means a board, commission, committee, department or office in the state government or the Fox River Navigational System Authority. “State agency” does not include the department of natural resources or the office of the governor.

29.604(2)(b) (b) “Threatened species” means any species of wild animals or wild plants which appears likely, within the foreseeable future, on the basis of scientific evidence to become endangered.

29.604(2)(bn) (bn) “Whole plant-animal community” means a group of species living together in a particular area, time and habitat.

29.604(2)(c) (c) Notwithstanding s. 29.001 (90), “wild animal” means any mammal, fish, wild bird, amphibian, reptile, mollusk, crustacean, or arthropod, or any part, products, egg or offspring thereof, or the dead body or parts thereof.

29.604(2)(d) (d) “Wild plant” means any undomesticated species of the plant kingdom occurring in a natural ecosystem.

29.604(3) (3) Endangered and threatened species list.

29.604(3)(a) (a) The department shall by rule establish an endangered and threatened species list. The list shall consist of 3 parts: wild animals and wild plants on the U.S. list of endangered and threatened foreign species; wild animals and wild plants on the U.S. list of endangered and threatened native species; and a list of endangered and threatened Wisconsin species. Wisconsin endangered species shall be compiled by issuing a proposed list of species approaching statewide extirpation. Wisconsin threatened species shall be compiled by issuing a proposed list of species which appear likely, within the foreseeable future, to become endangered. Issuance of the proposed lists shall be followed by solicitation of comments and public hearing. Wild animals and wild plants shall be considered to be approaching statewide extirpation if the department determines, based upon the best scientific and commercial data available to it, after consultation with other state game directors, federal agencies and other interested persons and organizations, that the continued existence of these wild animals and wild plants in this state is in jeopardy.

29.604(3)(b) (b) The department shall periodically review and, following public hearing, may revise its endangered and threatened species list. A summary report of the scientific data used to support all amendments to the state’s endangered and threatened species list shall be maintained by the department.

29.604(3)(c) (c) The department may upon the petition of 3 persons review any listed or unlisted wild animal or wild plant if the persons present scientific evidence to warrant such a review, after which the department may by hearing and rule amend the statewide list.

29.604(4) (4) Prohibition. Except as provided in subs. (6r) and (7m) or as permitted by departmental rule or permit:

29.604(4)(a) (a) No person may take, transport, possess, process or sell within this state any wild animal specified by the department’s endangered and threatened species list.

29.604(4)(b) (b) No person may process or sell to another person a wild plant of an endangered or threatened species.

29.604(4)(c) (c) No person may do any of the following to any wild plant of an endangered or threatened species that is on public property or on property that he or she does not own or lease, except in the course of forestry or agricultural practices, in the construction, operation, or maintenance of a utility facility, or as part of bulk sampling activities under s. 295.45:

29.604(4)(c)1. 1. Remove, transport or carry away the wild plant from the place where it is growing.

29.604(4)(c)2. 2. Cut, root up, sever, injure or destroy the wild plant.

29.604(5) (5) Enforcement.

29.604(5)(a) (a)

29.604(5)(a)1. 1. Whoever violates sub. (4) (a) shall forfeit not less than $500 nor more than $2,000. In addition, the court shall order the revocation of all hunting approvals issued to the person under this chapter and shall prohibit the issuance of any new hunting approvals under this chapter for one year. Whoever intentionally violates sub. (4) (a) shall be fined not less than $2,000 nor more than $5,000 or imprisoned for not more than 9 months or both. In addition, the court shall order the revocation of all hunting approvals issued to the person under this chapter and shall prohibit the issuance of any new hunting approvals under this chapter for 3 years.

29.604(5)(a)2. 2. Whoever violates sub. (4) (b) or (c) shall forfeit not more than $1,000. Whoever intentionally violates sub. (4) (b) or (c) shall be fined not more than $1,000 or imprisoned for not more than 9 months or both.

29.604(5)(b) (b) Any officer employed and authorized by the department, or any police officer of this state or of any municipality or county within this state, shall have the authority to execute a warrant to search for and seize any goods, business records, merchandise or wild animal or wild plant taken, employed, used or possessed in violation of this section. Any such officer or agent may, without a warrant arrest any person whom the officer or agent has probable cause to believe is violating this section in his or her presence or view. An officer or agent who has made an arrest of a person in connection with any violation under this section may search the person or business records at the time of arrest and seize any wild animals and wild plants, records, or property taken, used or employed in connection with any violation.

29.604(5)(c) (c) Goods, merchandise, wild animals, wild plants or records seized under par. (b) shall be held by an officer or agent of the department pending disposition of court proceedings and shall be forfeited to the state for destruction or disposition as the department determines to be appropriate. Prior to forfeiture, the department may direct the transfer of wild animals or wild plants so seized to a qualified zoological, educational or scientific institution or qualified private propagator for safekeeping with costs assessable to the defendant.

29.604(6) (6) Permits.

29.604(6)(a) (a) The department shall issue a permit, under such terms and conditions as it may prescribe by rule, authorizing the taking, exportation, transportation or possession of any wild animal or wild plant on the list of endangered and threatened species for zoological, educational or scientific purposes, for propagation of such wild animals and wild plants in captivity for preservation purposes, unless such exportation, possession, transportation or taking is prohibited by any federal law or regulation, or any other law of this state.

29.604(6)(b) (b) Any endangered species of wild animal or wild plant which enters the state from another state or from a point outside the territorial limits of the United States and which is being transported to a point within or beyond the state may enter the state and be transported without restriction in accordance with the terms of any federal permit or permit issued under the laws or regulations of another state.

29.604(6)(c) (c) Possession, sale or transportation within this state of any endangered species on the U.S. list of endangered and threatened foreign species shall not require a state permit under par. (a).

29.604(6m) (6m) Incidental takings; permits.

29.604(6m)(a) (a) In this subsection and sub. (6r), “taking” means an activity prohibited under sub. (4) (a), (b) or (c).

29.604(6m)(b) (b) The department may issue a permit, under such terms and conditions as it may prescribe, authorizing a taking that otherwise is prohibited by this section if the taking is not for the purpose of, but will be only incidental to, the carrying out of an otherwise lawful activity.

29.604(6m)(c) (c) The department may not issue a permit under this subsection unless an applicant for the permit submits to the department a conservation plan and an implementing agreement. The conservation plan shall include all of the following:

29.604(6m)(c)1. 1. A description of the impact that will likely occur as a result of the taking of an endangered species or threatened species that is specified on the department’s endangered and threatened species list.

29.604(6m)(c)2. 2. The steps that the parties specified under par. (d) will take to minimize and mitigate the impact that the endangered species or the threatened species will suffer.

29.604(6m)(c)3. 3. A description of the funding that the parties specified under par. (d) will have available to implement the steps specified under subd. 2.

29.604(6m)(c)4. 4. A description of the alternative actions to the taking that the parties in par. (d) have considered and the reasons that these alternatives will not be utilized.

29.604(6m)(c)5. 5. Any other measures that the department may determine to be necessary or appropriate.

29.604(6m)(d) (d) The implementing agreement required under par. (c) shall specifically name, and describe the obligations and responsibilities of, all the parties that will be involved in the taking as authorized by the permit.

29.604(6m)(e) (e) Upon receipt of an application for a permit and the accompanying conservation plan and implementing agreement for a proposed taking, the department shall publicize the application by announcing the application receipt and by giving a brief description of the proposed taking. The department publicity shall be distributed to the news media in the vicinity of the proposed taking and to the official state newspaper designated under s. 985.04. The department shall, by rule, establish a list of organizations, including nonprofit conservation groups, that have a professional, scientific or academic interest in endangered species or in threatened species. The department shall give notification of proposed takings under this subsection to these organizations. The department shall establish a procedure for receipt of public comment on the proposed taking.

29.604(6m)(f) (f) After having considered the public comment received on the proposed taking, the department shall issue the permit if the department finds, based on the permit application, the conservation plan and the implementing agreement, the taking will meet all of the following requirements:

29.604(6m)(f)1. 1. The taking will not be the purpose of, but will be only incidental to, the carrying out of a lawful activity.

29.604(6m)(f)2. 2. The parties specified under par. (d) will, to the maximum extent practicable, minimize and mitigate the impact caused by the taking.

29.604(6m)(f)3. 3. The parties specified under par. (d) will ensure that adequate funding for the conservation plan will be provided.

29.604(6m)(f)4. 4. The taking will not appreciably reduce the likelihood of the survival or recovery of the endangered species or threatened species within the state, the whole plant-animal community of which it is a part or the habitat that is critical to its existence.

29.604(6m)(f)5. 5. Any measures required under par. (c) 5. will be met.

29.604(6m)(g) (g) The department may require that a party specified under par. (d) make additional assurances that the requirements under par. (f) 1. to 5. will be met before issuing a permit under par. (f).

29.604(6m)(h) (h) The department shall impose on the permit any terms or conditions that the department finds necessary to ensure that the requirements under par. (f) 1. to 5. will be met. These terms or conditions may include reporting and monitoring requirements. These terms or conditions are modifiable only as provided under par. (hm).

29.604(6m)(hm) (hm) The terms or conditions of a permit shall be modified if one of the following applies:

29.604(6m)(hm)1. 1. The modification is expressly provided in the conservation plan, implementing agreement or permit.

29.604(6m)(hm)2. 2. The permittee requests the modification.

29.604(6m)(hm)3. 3. Just cause exists based upon a written finding of necessity by the secretary.

29.604(6m)(hr) (hr) A finding of necessity under par. (hm) 3. by the secretary shall be a final decision not subject to review under subch. III of ch. 227.

29.604(6m)(i) (i) The department shall revoke a permit issued under this subsection if it finds that a party specified under par. (d) fails to comply with the terms and conditions of the permit.

29.604(6m)(j) (j) A permit issued by the department is not required if a federal permit under 16 USC 1539 has been issued and if the federal fish and wildlife service consulted with the department in the process of determining whether to issue the federal permit.

29.604(6m)(k) (k) Paragraphs (b) to (j) do not apply to activities by a state agency or by the department under sub. (6r).

29.604(6r) (6r) Agency activities.

29.604(6r)(a) (a) A state agency shall notify the department at the earliest opportunity of the location, nature and extent of a proposed activity that the state agency may conduct, approve or fund and that may affect an endangered species or threatened species. The department may allow the taking of an endangered species or threatened species if all of the following apply:

29.604(6r)(a)1. 1. The activity is accomplished in accordance with interagency consultation procedures established by the department and the state agency for the purpose of minimizing any adverse effect on the endangered species or threatened species.

29.604(6r)(a)2. 2. The activity is not likely to jeopardize the continued existence and recovery of the endangered species or threatened species, or the whole plant-animal community of which it is a part, within this state and the activity is not likely to result in the destruction or adverse modification of a habitat that is critical to the continued existence of the endangered species or the threatened species within the state, as determined by the department under par. (b).