Rule-Making Notices (Hearing Notices)

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.

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

Revenues. In the past 4 years, WPDES fees associated with copper limits have ranged between $45,000 to $60,000 per year. Assuming that copper-related fees would increase by 15% under this proposal, and applying that percentage to the upper range of copper-related fees collected, the Department estimates that the proposed rule package would increase annual WPDES fee collections under NR 101 by $9,000 ($60,000 x 15%). Furthermore, the Department estimates that the proposed rule changes for the remaining 17 toxic substances will have a minimal impact on WPDES fee collections.

Costs. A minimal amount of DNR staff time will be required to implement the proposed rule changes.

Notice of Hearings

Natural Resources

(Environmental Protection-Water Regulation, Chs. NR 300—)

[CR 07-112]

NOTICE IS HEREBY GIVEN that pursuant to ss. 30.20(1), (1k), (1t) and (2), 30.206 and 227.11(2), Stats., interpreting ss. 30.20(1), (1g), (1k), (1m), (1t) and (2) and 30.206, Stats., the Department of Natural Resources will hold public hearings on revisions to ch. NR 345, Wis. Adm. Code, relating to general permit standards to allow operation of a motor vehicle on the beds of outlying waters to remove algae, mussels, dead fish and similar large public nuisance deposits and for the removal and control of invasive plants on exposed lakebeds.

The operation of motor vehicles and the removal or disturbance of materials on the beds of navigable waterways (also known as dredging) is regulated by ch. 30, Stats., and ch. NR 345. The statutes and current rule allow lakefront property owners to apply for an individual permit to use mechanized methods to remove nuisance deposits or other invasive or unwanted vegetation. However, individual permits require a $500 application fee and a 30-day public comment period before the permit can be issued.

Considering the changing lakeshore due to decreased water levels and the abundance of invasive species, the department proposes to revise ch. NR 345 to create two new general permits. The general permits would allow lakefront property owners to operate motor vehicles on the beds of “outlying" navigable waters to remove public nuisance deposits (Cladophora, Zebra mussels, dead fish, etc.) and to control and manage invasive vegetation on exposed lakebed more efficiently while complying with general permit conditions created to protect the public interest in the lakebed. The general permit has a $50 application fee and is processed in 30 days.

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

January 15, 2008   Room 151
Tuesday at 10:00 a.m.   Dreyfus State Office Building
    141 NW Barstow St.
    Waukesha

January 16, 2008   Lake Michigan Room
Wednesday at 10:00 a.m.   DNR Northeast Region Hdqrs.
    2984 Shawano Avenue
    Green Bay

January 17, 2008   Video conference participation
Thursday at 10:00 a.m.   will be available at:

    Room 306
    Conference Center
    Wis. Indianhead Tech. College
    2100 Beaser Avenue
    Ashland

    Room L130
    UW Center – Marinette
    750 W. Bay Shore St.
    Marinette

    Large Conference Room
    DOT Superior-District 8
    1701 N. 4th St.
    Superior

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 Roberta Lund 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 MartinP.Griffin@ Wisconsin.gov. Written comments on the proposed rule may be submitted via U.S. mail to Martin Griffin, Bureau of Watershed Management, P.O. Box 7921, Madison, WI 53707. Comments may be submitted until January 21, 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. Griffin.

Initial Regulatory Flexibility Analysis

NOTICE IS HEREBY FURTHER GIVEN that pursuant to s. 227.114, Stats., the proposed rules may have an impact on small businesses. The initial regulatory flexibility analysis is as follows:

Types of small business that will be affected by the rule

Small businesses affected by this rule will include contractors, developers and consultants who provide plans or design for projects along public navigable waterways which may include the removal of unwanted aquatic plants and dead animals from shoreline as well as participating in invasive species control and management.

Reporting, bookkeeping and other procedures required for compliance with the rule