SB123: Bill Text

LRB-1401/2

RNK:bjk:ph

2009 - 2010 LEGISLATURE

2009 Senate BILL 123

March 17, 2009 - Introduced by Senators Jauch, Holperin, Lassa, Lehman, Plale, Risser and Sullivan, cosponsored by Representatives Milroy, Pocan, A. Ott, Fields, Hraychuck, Hubler, Richards, Seidel, Sherman, Sinicki, Spanbauer, Staskunas and Steinbrink. Referred to Committee on Environment.

SB123,1,11 An Act to repeal 23.225, 23.245 and 30.715 (title) and (1) to (4); to renumber 30.715 (5); to renumber and amend 30.715 (6); to amend 23.22 (3) (c), 23.22 (6) (b), 23.22 (6) (c), 30.124 (1) (a), 30.1255 (3) (b) and 66.0407 (1) (b); and to create 23.22 (2t), 23.22 (5m), 23.2355, 30.07, 30.80 (5m), 287.07 (7) (cm) and 345.11 (1j) of the statutes; relating to: regulating the transportation of aquatic plants and aquatic animals, the administration of federal funds for the control and eradication of noxious weeds, the placement of vehicles, seaplanes, watercraft, and other objects in navigable waters, the regulation of noxious weeds by municipalities, the disposal of invasive species, providing an exemption from rule-making procedures, requiring the exercise of rule-making authority, and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, the Department of Natural Resources (DNR) administers various laws to control invasive species. DNR also regulates the placement of certain boats, boat trailers, and equipment (boats) in navigable waters with aquatic plants attached. This draft makes various changes to those laws and imposes new restrictions relating to invasive species and aquatic plants and animals.

Placement of certain objects in navigable waters

Under current law, no person may place or use a boat in a navigable water if the person has reason to believe that it has any aquatic plants attached. Current law also prohibits the placement or use of a boat in the Lower St. Croix River if the person has reason to believe that the boat has zebra mussels attached. This bill expands these restrictions by prohibiting the placement or operation of any vehicle, seaplane, watercraft, or other object of any kind in a navigable water if the object has any aquatic plants or aquatic animals attached. Under the bill, this prohibition applies regardless of whether the person had reason to believe that such plants or animals are attached. The bill specifies that the prohibition does not require a person to remove attached aquatic plants or animals during the period of time when the object is being used in the same navigable body of water in which the aquatic plants or animals became attached.

Current law authorizes a law enforcement officer to order a person to remove aquatic plants from a boat before placing the boat in a navigable water and to remove a boat from, or to not place a boat in, a navigable water if the law enforcement officer has reason to believe that the boat has aquatic plants attached. This bill broadens this authority to allow a law enforcement officer to order removal of aquatic animals in addition to aquatic plants and to order their removal from any vehicle, seaplane, watercraft, or other object of any kind before placing it in a navigable water. Under this expanded authority a law enforcement officer may also order removal of any object from a navigable water.

Transportation of vehicles, watercraft, seaplanes, and other objects.

Current law prohibits any person, with certain exceptions, from transporting a boat on a highway if it has an invasive species attached to the boat. This bill expands this prohibition. Under this bill, no person may transport or operate a vehicle, watercraft, or other object of any kind on a highway with aquatic plants or aquatic animals attached. The bill also prohibits a person from taking off with a seaplane with such plants or animals attached. The bill also authorizes, with certain exceptions, a law enforcement officer to order a person not to take off with a seaplane or not to transport or operate a vehicle, watercraft, or other object on a highway if the law enforcement officer has reason to believe that it has aquatic plants or aquatic animals attached. Under the bill, the transportation restrictions do not apply to certain persons, including a person who transports commercial aquatic plant harvesting equipment for the purpose of cleaning the equipment to remove aquatic plants or aquatic animals or to a person who transports duckweed that is incidentally attached to the object being transported.

Invasive species compliance investigation and department authority

Under current law, DNR administers a statewide program to control invasive species. This bill authorizes DNR, for the purpose of administering and enforcing the statewide invasive species program, to conduct compliance investigations. The bill authorizes a DNR warden or other DNR representative to enter certain premises, other than a dwelling, where invasive species are stored, where records relating to invasive species are kept, where vehicles, boats, equipment, or materials used to transport or hold invasive species are located, or where activities related to invasive species are conducted. It also authorizes DNR to inspect invasive species stored or possessed by any person, inspect records or reports relating to invasive species, take diagnostic samples, and seize and destroy certain invasive species.

This bill also establishes DNR's authority to hold hearings relating to any aspect of the administration of the statewide invasive species program. It also authorizes DNR to waive compliance with certain requirements of the program or shorten time periods under the program to the extent necessary to prevent an emergency condition threatening public health, safety, or welfare or the environment. The bill requires every state agency to cooperate with DNR in the administration of the statewide invasive species program where the interests of DNR and the respective state agency overlaps.

Rules

Under current law, DNR is required to promulgate rules to identify, classify, and control invasive species for the purposes of the statewide invasive species program. This bill authorizes DNR to promulgate an emergency rule to identify, classify, or control an invasive species without providing evidence of an emergency. Under the bill, a rule promulgated in this manner remains in effect until the earlier of two years after the rule's effective date, the repeal of the rule, or the date on which a corresponding permanent rule takes effect.

Other provisions

Under current law, any person who owns land is required to destroy noxious weeds on that land. Noxious weeds are defined to include certain weeds such as Canada thistle, leafy spurge, and any other weed that a municipality or county by ordinance or resolution declares to be noxious within its respective borders. This bill expands the definition of a noxious weed to include any weed that DNR designates as a noxious weed by rule.

Under current law, with limited exceptions, no person may dispose of yard waste in a solid waste disposal facility. This bill provides that the prohibition does not apply to the disposal of plants that are classified by DNR as invasive species or seeds of those plants, if the plants or seeds are not commingled with other yard waste.

For further information see the state fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB123, s. 1 Section 1. 23.22 (2t) of the statutes is created to read:

SB123,4,9 23.22 (2t) Department powers and cooperation. (a) Using the procedure under s. 227.24, the department may promulgate an emergency rule to identify, classify, or control an invasive species under sub. (2) (b) 6. Notwithstanding s. 227.24 (1) (a) and (3), the department is not required to provide evidence that promulgating a rule under this paragraph as an emergency rule is necessary for the preservation of public peace, health, safety, or welfare and is not required to provide a finding of emergency for a rule promulgated under this paragraph. Notwithstanding s. 227.24 (1) (c) and (2), an emergency rule promulgated under this paragraph remains in effect until whichever of the following occurs first:

SB123,4,11 1. The first day of the 25th month beginning after the effective date of the emergency rule.

SB123,4,12 2. The effective date of the repeal of the emergency rule.

SB123,4,14 3. The date on which the permanent rule identifying, classifying, or controlling the invasive species, promulgated under sub. (2) (b) 6., takes effect.

SB123,4,17 (b) The department may hold hearings relating to any aspect of the administration of this section and, in connection with those hearings, compel the attendance of witnesses and the production of evidence.

SB123,4,21 (c) The department may waive compliance with any requirement under this section or shorten the time periods under this section to the extent necessary to prevent an emergency condition threatening public health, safety, or welfare or the environment.

SB123,4,24 (d) The department may secure necessary scientific, technical, administrative, and operational services, including laboratory facilities, by contract or otherwise for purposes of this section.

SB123,5,4 (e) The department may advise and may consult, contract, and cooperate with, other state agencies, local governments, industries, other states, interstate or interlocal agencies, the federal government, and other interested persons or groups for purposes if this section.

SB123,5,9 (f) Every state agency shall cooperate with the department in the administration of this section where the interests of the department and the respective state agency overlap. The cooperating state agencies may provide by agreement for the manner of sharing expenses and responsibilities under this section.

SB123, s. 2 Section 2. 23.22 (3) (c) of the statutes is amended to read:

SB123,5,16 23.22 (3) (c) The council shall make recommendations to the department on the establishment of a procedure for awarding cost-sharing grants under sub. (2) (c) to public and private entities for up to 50% 75 percent of the costs of eligible projects to control invasive species. The recommendations shall contain criteria for determining eligibility for these grants and for determining which applicants should be awarded the grants.

SB123, s. 3 Section 3. 23.22 (5m) of the statutes is created to read:

SB123,5,20 23.22 (5m) Compliance investigation. (a) For the purpose of administering and enforcing this section, a warden or a representative of the department, upon presentation of his or her identification, may do any of the following:

SB123,5,23 1. Enter at any reasonable time any premises, building, or structure, other than a dwelling, that is publicly owned or operated or where a commercial enterprise is conducted, and where any of the following occur:

SB123,5,24 a. An invasive species is stored, processed, or held.

SB123,5,25 b. Records or reports relating to invasive species are kept.

SB123,6,2 c. Vehicles, boats, equipment, or materials used to transport or hold invasive species are located.

SB123,6,3 d. Activities related to invasive species are conducted.

SB123,6,4 2. Inspect invasive species stored or possessed by any person.

SB123,6,5 3. Inspect records or reports relating to invasive species.

SB123,6,6 4. Take reasonable diagnostic samples for biological examination.

SB123,6,9 5. Seize and destroy any invasive species possessed or transported in violation of this section or s. 23.235, 23.24, or 30.07 or any rule promulgated or permit or order issued under this section or s. 23.235, 23.24, or 30.07.

SB123,6,11 6. Enter any vehicle, boat, or equipment used to transport or hold invasive species.

SB123,6,12 (b) No person may do any of the following:

SB123,6,14 1. Prohibit the department from gaining access to, or conducting an inspection of, any place the department is authorized to inspect under this subsection.

SB123,6,16 2. Fail to promptly provide records to the department that the person is required to produce under this subsection.

SB123, s. 4 Section 4. 23.22 (6) (b) of the statutes is amended to read:

SB123,6,21 23.22 (6) (b) The department shall submit the biennial report under par. (a) before July October 1 of each even-numbered year. The first biennial report shall be submitted no later than July 1, 2004. Each report shall cover the 24-month period ending on the March 31 June 30 that immediately precedes the date of the report.

SB123, s. 5 Section 5. 23.22 (6) (c) of the statutes is amended to read:

SB123,7,5 23.22 (6) (c) In addition to the report required under par. (a), the department shall submit an interim performance report to the legislature under s. 13.172 (2), and to the governor and the council, on the progress that has been made on the control of invasive species. The department shall submit this interim performance report before July October 1 of each odd-numbered year. The first interim performance report shall be submitted no later than July 1, 2005. Each interim performance report shall cover the 12-month period ending on the March 31 June 30 that immediately precedes the date of the interim performance report.

SB123, s. 6 Section 6. 23.225 of the statutes is repealed.

SB123, s. 7 Section 7. 23.2355 of the statutes is created to read:

SB123,7,16 23.2355 Weed management grants. The department, in consultation with the department of agriculture, trade and consumer protection, shall promulgate rules that authorize the department, in consultation with the department of agriculture, trade and consumer protection, to provide funds received from the federal government under 7 USC 7782 to eligible recipients for the control or eradication of noxious weeds. The rules shall authorize the department and the department of agriculture, trade and consumer protection to use the funds received from the federal government to provide technical assistance and to make grants to eligible recipients to control or eradicate noxious weeds.

SB123, s. 8 Section 8. 23.245 of the statutes is repealed.

SB123, s. 9 Section 9. 30.07 of the statutes is created to read:

SB123,7,20 30.07 Transportation of aquatic plants and animals; placement of objects in navigable waters. (1) In this section:

SB123,7,22 (a) "Aquatic animal" means any animal that lives or grows only in water during any life state and includes that animal's eggs, larvae, or young.

SB123,7,24 (b) "Aquatic plant" means a submergent, emergent, floating-leaf, or free- floating plant or any part thereof. "Aquatic plant" does not mean wild rice.

SB123,8,2 (c) "Highway" has the meaning given in s. 340.01 (22), except that it does not include public boat access sites or parking areas for public boat access sites.

SB123,8,3 (d) "Law enforcement officer" has the meaning given in s. 30.50 (4s).

SB123,8,6 (e) "Local governmental unit" means a city, village, town, or county; a special purpose district in this state; an agency or corporation of a city, village, town, county, or special purpose district; or a combination or subunit of any of the foregoing.

SB123,8,9 (f) "Public boat access site" means a site that provides access to a navigable water for boats and that is open to the general public for free or for a charge or that is open only to certain groups of persons for a charge.

SB123,8,10 (g) "Vehicle" has the meaning given in s. 340.01 (74).

SB123,8,17 (2) (a) No person may place or operate a vehicle, seaplane, watercraft, or other object of any kind in a navigable water if it has any aquatic plants or aquatic animals attached. This paragraph does not require a person to remove aquatic plants or aquatic animals from a vehicle, seaplane, watercraft, or other object during the period of time when the vehicle, seaplane, watercraft, or other object is being operated in the same navigable body of water in which the aquatic plants or aquatic animals became attached.

SB123,8,20 (b) No person may take off with a seaplane, or transport or operate a vehicle, watercraft, or other object of any kind on a highway with aquatic plants or aquatic animals attached.