Rule-Making Notices (Hearing Notices)

•   Bait fish or fish eggs originating from Wisconsin sources.

•   Fish or fish eggs moved between Wisconsin fish farms.

•   Non-salmonids imported from states (such as Minnesota) where VHS has not yet been found.

Because VHS has now been found in Wisconsin public waters, it is necessary to expand current VHS testing requirements. Because of the urgent need to minimize the spread of VHS in this state, it is necessary to add VHS testing requirements by emergency rule, pending the adoption of a “permanent" rule.

This emergency rule expands current VHS testing requirements. Under this emergency rule, a fish health certificate and VHS testing are required for all of the following fish and fish eggs if they are of a known VHS-susceptible species identified by the United States department of agriculture (USDA) and were either (1) collected from a wild source in any state within the preceding 12 months, or (2) kept on a fish farm that received fish or fish eggs of any species collected from a wild source in any state within the preceding 12 months:

•   Fish or fish eggs stocked into Wisconsin public waters.

•   Fish or fish eggs moved between Wisconsin fish farms.

•   Fish or fish eggs distributed by a bait dealer for use as bait. The bait fish testing requirement will initially apply emerald shiners (a known VHS-susceptible species), but will not initially apply to other major bait species such as fathead minnows, white suckers and golden shiners (which are not yet known to be VHS-susceptible). However, it could eventually apply to other species if USDA finds that those species are also VHS-susceptible. A retail bait dealer is not required to conduct duplicate tests on fish previously tested by a wholesale bait dealer.

This rule also prohibits any person from selling bait fish of any kind if the seller has reason to know that the bait is affected with VHS or another reportable disease.

Operators Moving Fish Between Their Own Fish Farms

This emergency rule clarifies that VHS and other routine disease testing requirements do not apply when operators (including DNR) are moving fish or fish eggs between their own registered fish farms. However, current DATCP rules continue to prohibit such movement if the operator knows or has reason to know that the fish or fish eggs are affected with a reportable disease such as VHS. DATCP may also issue quarantine and other disease control orders to individual fish farm operators, as necessary.

Disease-Free Certification of Farm-Raised Deer

Under current rules, DATCP may certify a herd of farm-raised deer as brucellosis-free or tuberculosis-free, or both, based on herd test results provided by the herd owner. Participation is voluntary, but disease-free herd certification facilitates the sale and movement of farm-raised deer. Herd certification is generally governed by federal rules (uniform methods and rules) that DATCP has incorporated by reference in its rules.

Under current federal rules, tuberculosis-free herd certification is good for 3 years, while brucellosis-free herd certification is good for only 2 years. USDA proposes to harmonize the certification terms, but has not yet adopted the necessary rule changes. USDA has authorized DATCP to harmonize the terms by state rule.

This emergency rule extends brucellosis-free herd certification from 2 years to 3 years (a herd owner may request a shorter term), consistent with tuberculosis-free herd certification. That will allow herd owners to conduct simultaneous tests for both diseases. Simultaneous testing will reduce testing costs and limit stress on tested deer. It is necessary to adopt this change by emergency rule, so that certain herd owners can avoid unnecessary testing this year.

Comparison with federal regulations

DATCP administers animal disease control programs in cooperation with USDA. USDA has issued federal orders in response to the discovery of VHS in the United States and Canada. The orders limit interstate and international shipments of VHS-susceptible fish from states and provinces that border the Great Lakes, and require negative VHS testing to permit movement. This rule supplements current federal rules by establishing testing requirements for intrastate movement and stocking of wild source fish and fish eggs (including bait species) in Wisconsin.

Comparison with rules of adjacent states

Michigan and Minnesota require VHS testing on salmonids stocked into state waters. On June 7, 2007, Michigan also announced a one-year moratorium on state hatchery production of walleye, northern pike and muskellunge using eggs collected from wild sources in Michigan during 2007. Illinois and Iowa have no VHS testing requirements for intrastate movement or stocking of fish.

Fiscal Impact

Disease Testing of Fish

Effect on DNR

This emergency rule will have a fiscal impact on DNR fish hatchery and stocking operations. Under this rule, all VHS-susceptible fish and fish eggs (including VHS-susceptible bait species) must be tested for VHS before being stocked to Wisconsin public waters if they were either (1) collected from a wild source within the preceding 12 months or (2) kept on a fish farm that received fish or fish eggs of any species collected from a wild source within the preceding 12 months.

Under current rules, a veterinarian or other qualified fish health inspector must issue a fish health certificate for all fish or fish eggs stocked into Wisconsin public waters. The inspector must issue the health certificate on a form prescribed by DATCP. Under this rule, if the fish are of a VHS-susceptible species, and were either (1) collected from a wild source within the preceding 12 months or (2) kept on a fish farm that received fish of any species collected from a wild source within the preceding 12 months, the fish health certificate must certify that the fish are VHS-free. The certification must be based on VHS tests conducted according to approved methods (the American Fisheries Society test or the World Organization for Animal Health test) that DATCP identifies on the health certificate form.

VHS tests must be conducted on a statistically representative test sample of fish drawn from the tested species or farm. The average cost to test and certify a single lot of fish is approximately $500 (actual costs vary depending on test method, number of fish in the lot, number of different species in the lot, etc.). A single fish farm might need to test from 1-30 lots per year, depending on the source and species of the fish, the number of separate fish lots kept on the fish farm, and the purposes for which the fish are kept and distributed.

DNR annually registers approximately 100 fish farms with DATCP. Thirteen of those fish farms are state-owned fish hatcheries. The remainder are registered by DNR but owned by private DNR “cooperators" (as registrant, DNR assumes legal responsibility for compliance with fish health rules). DATCP estimates that DNR will need to conduct VHS tests on a combined total of approximately 120 lots of fish per year (including fish at state hatcheries and “cooperator" fish farms registered by DNR).

Assuming an average test cost of $500 per lot, the total cost to DNR would be approximately $60,000 per year. However, DNR has already implemented a number of internal controls and VHS testing protocols, so the added cost of this rule will be less than $60,000. DNR costs may increase if USDA finds that additional fish species are susceptible to VHS (the amount of the increase will depend on which fish species are found to be susceptible).

Effect on DATCP

DATCP will incur added costs to administer and enforce the fish health testing requirements under this emergency rule. DATCP will need at least 2.0 FTE staff to review and process a large volume of fish health certificates in a timely manner; to train fish health inspectors to collect samples for VHS testing; to provide compliance information and respond to industry inquiries; to conduct inspections and monitor compliance; to conduct investigations of possible law violations; and to initiate enforcement actions if necessary.

The 2.0 FTE staff will have a combined total cost of at least $120,000 per year, including salary, fringe benefits and support costs. DATCP will attempt to absorb these costs in the short term by shifting staff from other important disease control responsibilities, but DATCP will not be able to do so indefinitely without putting other livestock sectors at unacceptable risk. DATCP will seek federal grant funds to cover some of the costs, but federal funding is not guaranteed.

Effect on UW and Local Governments

This rule may have a slight fiscal impact on University of Wisconsin research facilities and some local governments, to the extent that they may operate fish farms or procure fish from farms affected by this rule. However, the effect will likely be minimal unless those entities are engaged in distributing VHS-susceptible fish or fish eggs from wild sources.

Disease-Free Certification of Farm-Raised Dear

This emergency rule extends brucellosis-free certification of farm-raised deer herds, from 2 years to 3 years, consistent with tuberculosis-free herd certification. The change will allow participating herd owners to conduct simultaneous tests for both diseases. The change will have no fiscal impact on DATCP, on other agencies of state government, or on local government.

Business Impact

Disease Testing of Fish

Effect on Private Fish Farm Operators

DATCP estimates that this rule will affect 30-40 private fish farms, not counting DNR “cooperator" fish farms registered by DNR (see above). Many of the affected fish farms are “small businesses," and many of them will be substantially affected by this rule. VHS testing requirements may force some fish farm operators to curtail all or part of their operations. However, some fish farms already conduct VHS tests in order to meet federal requirements for interstate movement of fish.

Fish farm operators may incur added testing requirements under this rule if they keep VHS-susceptible fish or fish eggs that were either (1) collected from any wild source within the preceding 12 months, or (2) kept on a fish farm that received fish or fish eggs (of any species) collected from any wild source within the preceding 12 months. Operators must test those VHS-susceptible fish or fish eggs before they distribute them for bait, for stocking to Wisconsin public waters, or for delivery to other fish farms (other than those registered by the same operator).

A veterinarian or other qualified fish health inspector must certify that the fish or fish eggs are VHS-free, based on tests using approved methods (the American Fisheries Society test or the World Organization for Animal Health test) that DATCP has identified on the health certificate form.

VHS tests must be conducted on a statistically representative sample of fish drawn from the tested species or farm. The average cost to test and certify a single lot of fish is approximately $500 (actual costs vary depending on test method, number of fish in the lot, number of fish species in the lot, etc.). A single fish farm might need to test from 1-30 lots per year, depending on the source and species of the fish, the number of separate fish lots kept on the fish farm, and purposes for which the fish are kept and distributed.

DATCP estimates that approximately 30-40 private fish farm operators will need to conduct VHS tests, and that they will conduct those tests on a combined total of approximately 40 lots of fish per year. Assuming an average cost of $500 per test per lot, the combined total cost to all affected private fish farm operators will be approximately $20,000 per year. However, some of those affected fish farmers are already performing VHS tests in order to meet federal requirements for shipping fish in interstate commerce, so the net impact of this rule may be less than $20,000. Fish farm costs may increase if USDA finds that additional fish species are susceptible to VHS (the amount of the increase will depend on which fish species are found to be susceptible).

Effect on Bait Dealers

Wisconsin bait dealers are licensed by DNR. This rule will affect licensed bait dealers in 2 ways:

•   If bait dealers buy VHS-susceptible bait species that originate from wild sources, their purchase costs may reflect the seller's added cost of VHS testing under this rule.

•   If bait dealers collect VHS-susceptible bait species from wild sources, they will need to conduct VHS tests before reselling or distributing the bait. They will also need to withhold the bait from distribution for at least 4 weeks pending the completion of VHS tests. That will add costs, and may not be practically feasible for affected bait dealers.

This rule applies only to bait species that are known to be susceptible to VHS. Of the major bait species in Wisconsin (fathead minnow, white sucker, golden shiner and emerald shiner), only one species (emerald shiner) is currently known to be susceptible to VHS. Emerald shiners are obtained exclusively by wild harvesting, while other major bait species can be hatched and raised on farms. At this time, DATCP estimates that emerald shiners represent less than 10% of the overall bait market in Wisconsin (the market for wild-harvested emerald shiners has already diminished as a result of federal VHS testing requirements for emerald shiners moved in interstate commerce).

DATCP estimates that approximately 25 Wisconsin bait dealers are currently harvesting emerald shiners from the wild. DATCP estimates that each of those bait dealers would need to test an average of 6 lots of wild-harvested emerald shiners each year, before distributing the emerald shiners for sale. Assuming an average cost of $500 per test lot, the average annual cost for an individual bait dealer would be about $3,000 per year, and the combined total cost to all 25 of those bait dealers would be about $75,000 per year. That figure does not include added costs to hold the emerald shiners for 4 weeks while testing is completed. It is extremely difficult to hold emerald shiners for extended periods, so it may not even be possible for most bait dealers to hold them for the required 4 weeks.

The difficulty of holding emerald shiners for 4 weeks, combined with the added cost of testing emerald shiners, may drive many bait dealers out of the business of harvesting wild emerald shiners for sale as bait. However, those bait dealers may still be able to harvest and sell other types of bait that are not affected by this rule.

Bait dealers that are not currently harvesting emerald shiners will not be substantially affected by this rule unless USDA finds that additional bait species are susceptible to VHS. If USDA finds that other major bait species are susceptible to VHS, this rule could have a more dramatic impact on bait dealers. The impact will depend on the species that are affected.

Accommodation for Small Business

This rule will have a limited effect on most private fish farms and bait dealers. But in some cases (especially in the case of bait dealers that harvest emerald shiners from wild sources for sale as bait), this rule may impose substantial added costs. If USDA finds that additional fish or bait fish species are susceptible to VHS, this rule may have a more dramatic impact on fish farm operators or bait dealers, or both. Many of the affected entities are small businesses.

This emergency rule is needed to protect the health of wild and farm-raised fish populations in this state. Effective disease control is important for the entire aquaculture industry in this state. Although this rule may increase costs for some fish farm operators and bait dealers, the costs are currently outweighed by the need to prevent and control the spread of disease. DATCP has not exempted small businesses, or adopted more lenient VHS testing requirements for small business, because the risk of disease spread is unrelated to business size.

Disease-Free Certification of Farm-Raised Deer

This rule will have no negative effects on farm-raised deer keepers, and will reduce testing costs for some farm-raised deer keepers. Actual cost savings will depend on herd size and current test schedules. By facilitating simultaneous testing for brucellosis and tuberculosis, this rule will also avoid some stress on tested deer.

Notice of Hearings

Natural Resources

(Environmental Protection-General,
Chs. NR 100—)

[CR 07-111]

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11(2), 281.15, 283.13 and 283.17, Stats., interpreting ss. 281.15, 283.13 and 283.17, Stats., the Department of Natural Resources will hold a public hearing on the repeal of ch. NR 209, revisions to ch. NR 102 and the creation of subchs. V and VI to ch. NR 106, Wis. Adm. Code, relating to thermal standards for Wisconsin surface waters. The proposed rule will establish water quality standards for temperature (in ch. NR 102) and procedures to calculate water quality-based effluent limitations (in ch. NR 106) to regulate the discharge of heated wastewater to prevent adverse impacts to fish and other aquatic life.

Two new subchapters will be created in ch. NR 106: subch. V entitled Effluent Limitations for Temperature and subch. VI entitled Alternative Effluent Limitations for Temperature. Subchapter V specifies data requirements, variance procedures, methods for determining the necessity for and calculation of water quality-based effluent limitations, application of and compliance with the limitations in WPDES permits, and other related limitation and permitting issues. As a primary means of assuring the limitations are water quality-based, the proposed rule takes into account the ambient temperature and flow of a receiving water in the calculation of effluent limitations. The effluent limitation calculation incorporates a mass balance equation, making it equivalent to other codified limit calculation procedures. The mass balance approach enables the determination of the amount of heat that a receiving water can assimilate without adversely affecting fish and aquatic life. Supplemental limits, including those of 120°F to prevent incidental injury (scalding) to humans and of 95°F to protect wetlands, ephemeral streams, and other limited aquatic life waterbodies, are also proposed. Additionally a “cap limit" is to be applied simultaneously with the calculated limit to prevent excessive acute mixing zones.

Subchapter VI specifies procedures to determining alternative effluent limitations that may be established for point source discharges with limitations calculated under subch. V that are demonstrated to be more stringent than necessary to assure the protection and propagation of a balanced indigenous population of shellfish, fish and wildlife in and on the body of water into which the discharge is made. The subchapter includes application, compliance schedule and public notice procedures, among others. Subchapter VI replaces ch. NR 209 which is proposed to be repealed.

NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:

January 15, 2008   Room 158
Tuesday at 1:00 p.m.   DNR Region Hdqrs.
    1300 W. Clairemont Ave.
    Eau Claire

January 17, 2008   Room 151
Thursday at 1:00 p.m.   Dreyfus State Office Building
    141 NW Barstow St.
    Waukesha

January 25, 2008   Room G09
Friday at 1:00 p.m.   GEF #2 State Office Bldg.
    101 S. Webster St.
    Madison

January 28, 2008   Lake Michigan Room
Monday at 1:00 p.m.   DNR Northeast Region Hdqrs.
    2984 Shawano Avenue
    Green Bay

NOTICE IS HEREBY FURTHER GIVEN that 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 Michael Wenholz at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copy of Rule and Submission of 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 Mr. Michael Wenholz, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until February 28, 2008. 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 Mr. Wenholz.

Initial Regulatory Flexibility Analysis

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The Department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

NOTICE IS HEREBY FURTHER GIVEN that 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

The Department estimates that there will be a minor, one-time increase in work load associated with this rule package. Staff will be involved with participating in training sessions and drafting WPDES permits, especially through the first round of reissued permits (i.e. the first 5 years of the rule being in effect). The increase in permit drafting work load will include learning a new process, potentially learning new automated systems, and calculating more limitations than in the past. Since the degree to which this work load will increase is difficult to estimate, the Department is characterizing this cost increase as “indeterminate".

Notice of Hearings

Natural Resources

(Environmental Protection-General,
Chs. NR 100—)

[CR 07-110]

NOTICE IS HEREBY GIVEN that pursuant to ss. 227.11 (2) (a) and 281.15, Stats., interpreting s. 281.15, Stats., the Department of Natural Resources will hold public hearings on revisions to ch. NR 105, Wis. Adm. Code, relating to surface water quality criteria. The Department is proposing to update surface water quality criteria for 15 substances and to develop new surface water quality criteria for 2 other substances. These updates and additions are the result of two federal initiatives. First, in 2000 U.S. EPA formally objected to aquatic life criteria for several substances in ch. NR 105 because the state criteria were not as protective as the federal criteria. Second, U.S. EPA has developed and updated human health criteria for some additional substances subsequent to the 2000 objections. The Department's proposed updates and additions will ensure federal approval of the criteria for those substances. No changes are proposed in the procedures used for developing criteria in ch. NR 105, only the numerical criteria for some of the substances regulated are being addressed at this time.

Of the 18 substances proposed for criteria revisions, it is estimated that no discharge permits will be affected for 14 of those substances. This is because the criteria are high enough and/or the discharge levels are low enough that no effluent limitations will be needed in any permit. The only substances for which changes in permit limitations are foreseen are arsenic, copper, nickel and selenium.

NOTICE IS HEREBY FURTHER GIVEN that the hearings will be held on:

January 3, 2008   Room G09
Thursday at 1:00 p.m.   GEF #2 State Office Building
  101 South Webster Street
  Madison

January 7, 2008   Room 185
Monday at 6:00 p.m.   DNR West Central Region Hdqrs.
  1300 W. Clairemont St.
  Eau Claire

January 14, 2008   Conference Room
Monday at 6:00 p.m.   Jim Coughlin Building
  625 County Road Y
  Oshkosh

NOTICE IS HEREBY FURTHER GIVEN that 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 Jim Schmidt at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copy of Rule and Submission 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 or to: JamesW.Schmidt @Wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Mr. Jim Schmidt, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until February 16, 2008. 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 Mr. Schmidt.