Analysis Prepared by Department of Natural Resources
Statutes interpreted
Statutory authority
Explanation of agency authority
The principal authority for the department's invasive species rules is s.
23.22 (2) (a) and
(b) 6., Stats., which requires the department to establish a statewide program to control invasive species in this state and directs the department to promulgate rules to identify, classify and control invasive species for purposes of the program, which may include procedures and requirements for issuing permits to control invasive species. In order to fulfill this broad duty, the department adopted ch.
NR 40 to provide it with all of the tools that are required to control invasive species, wherever found in the state, including regulation of the possession, transportation, transfer and introduction of specific invasive species, general preventive measures designed to restrict pathways by which humans commonly spread or introduce invasive species, authority to enter property in order to inspect, survey and control invasive species, and authority to recover the state's costs when it must carry out necessary control measures because responsible parties do not comply with department orders to control invasives themselves.
Section
23.11 (1), Stats., delegates to the department such further powers as may be necessary or convenient to enable it to exercise the functions and perform the duties required of it by ch.
23, Stats., and by other provisions of law.
Invasive species have caused environmental and economic damage and threaten human health, and will continue doing so unless adequate control measures are adopted and implemented. The general legislative delegation to the department of all necessary or convenient powers set out in s.
23.11 (1), Stats., combined with the broad directive in s.
23.22 (2) (a) and
(b) 6., Stats., to control invasive species in this state give the department sufficient power to adopt and revise as needed rules for the protection of public health, safety, welfare and the environment, but particularly for the promotion of public welfare, convenience and general prosperity. The department's exercise of legislatively delegated police powers, as embodied in its invasive species rules, has its basis in the inherent power and duty of government to protect and promote the life, comfort, safety and welfare of society.
Section
23.09 (2) (intro), Stats., grants the department general authority to adopt rules for the protection, development and use of forests, fish and game, lakes, streams, plant life, flowers and other outdoor resources in this state. Section
23.091, Stats., authorizes the department to acquire, develop, operate and maintain state recreation areas, to establish use zones within state recreation areas providing for the full range of recreational uses, including hunting and fishing, and to promulgate rules to control uses within zones and limit the number of persons using any zone. Section
23.11 (1), Stats., gives the department the authority to have and take the general care, protection and supervision of all state parks, of all state fish hatcheries and lands used therewith, of all state forests, and of all lands owned by the state or in which it has any interests.
Section
23.28 (3), Stats., prohibits the department from allowing any use of a designated state natural area which is inconsistent with or injurious to its natural values, and authorizes the department to establish use zones, control uses within a zone and limit the number of persons using zones in designated state natural areas. Section
27.01 (2) (j), Stats., grants the department authority to promulgate rules necessary to govern the conduct of state park visitors, and for the protection of state park property, or the use of facilities, including the use of boats and other watercraft on lakes or rivers within the limits of a state park, and the use of roads, trails or bridle paths.
Section
29.014 (1), Stats., directs the department to establish and maintain any bag limits and conditions governing the taking of fish that will conserve the fish supply and ensure the citizens of this state continued opportunities for good fishing. Section
29.039 (1), Stats., authorizes the department to develop conservation programs to ensure the perpetuation of nongame species, require harvest information and establish limitations relating to taking, possession, transportation, processing and sale or offer for sale, of nongame species. “Nongame species" is defined as any mammal, bird, fish, or other creature of a wild nature endowed with sensation and the power of voluntary motion that is living in the wild and that is not classified as a game fish, game animal, game bird or furbearing animal. Section
29.041, Stats., provides that the department may regulate fishing on and in all interstate boundary waters, and outlying waters.
Finally, s.
227.11 (2) (a), Stats., expressly confers rulemaking authority on the department to promulgate rules interpreting any statute enforced or administered by it, if the agency considers it necessary to effectuate the purpose of the statute. The department considers the rules created by this Order to be necessary to effectuate the purposes of s.
23.22, Stats.
Related statute or rule
Related statutes or rules include but are not limited to the following provisions which, to varying degrees, may apply to the identification, classification, control or other regulation of species that are invasive, or to conduct that may result in the introduction or spread of invasive species:
Statutory section — Title [or subject]
15.347 (18) Invasive species council.
23.093 Carp control research.
23.235 Nuisance weeds.
23.24 Aquatic plants.
26.20 (4) [Railroad right-of-way annual weed removal]
26.30 Forest insects and diseases; department
jurisdiction; procedure.
27.019 (7) (c) [County rural planning - highways only
native plantings allowed]
27.05 (5) and (7) [County authority to manage plants and
control weeds in county waters, parks and county
lands]
29.011 Title to wild animals.
29.047 Interstate transportation of game.
29.053 Specific open and closed seasons.
29.055 Wild animals; possession in closed season or in
excess of bag limit.
29.057 Wild animals; possession in open season.
29.089 Hunting on land in state parks and state fish
hatcheries.
29.091 Hunting or trapping in wildlife refuge.
29.192 Regulation of takings of certain wild animals.
29.301 General restrictions on hunting.
29.307 Hunting with aid of aircraft prohibited.
29.314 Shining animals.
29.327 Regulation of waterfowl blinds.
29.331 Trapping regulation.
29.334 Hunting and trapping; treatment of wild animals.
29.335 Feeding wild animals for nonhunting purposes.
29.337 Hunting and trapping by landowners and
occupants.
29.354 Possession of game birds and animals.
29.407 Transportation of fish.
29.414 Erection of barriers to exclude rough fish.
29.417 Permit to take rough fish.
29.421 Removal of rough fish.
29.424 Control of detrimental fish.
29.509 Bait dealer license.
29.516 Fishing with nets and setlines.
29.601 Noxious substances.
29.604 Endangered and threatened species protected.
29.614 Scientific collector permit.
29.627 Domestic fur–bearing animal farms.
29.701 Propagation of fish; protected wild animals.
29.705 Propagation of fish; removal of fish.
29.733 Natural waters used in fish farms.
29.734 Barriers required for fish farms.
29.735 Importation of fish.
29.736 Stocking of fish.
29.737 Permit for private management.
29.738 Private fishing preserves.
29.741 Food in the wild for game birds.
29.875 Disposal of escaped deer or elk.
29.885 Removal of wild animals.
29.887 Wildlife control in urban communities.
29.924 Investigations; Searches.
29.927 Public nuisances.
29.931 Seizures.
29.934 Sale of confiscated game and objects.
30.07 Transportation of aquatic plants and animals;
placement of objects in navigable waters.
30.1255 Report on control of aquatic nuisance species.
59.70 (17) and (18) [County funds, equipment, fees for pest
and weed control, plant or animal diseases.]
66.0407 Noxious weeds. [local governments]
66.0517 Weed commissioner. [local governments]
66.0627 Special charges for current services. [charges for
weed elimination]
84.07 (3) [DOT highway patrol officers to destroy noxious
weeds on highways]
93.07 Department duties. [Dept. of Agriculture, Trade
and Consumer Protection - pests]
94.01 Plant inspection and pest control authority.
94.02 Abatement of pests.
94.03 Shipment of pests and biological control agents;
permits.
94.10 Nursery stock; inspection and licensing.
94.38 Agricultural and vegetable seeds; definitions.
94.41 Prohibitions. [Sale or distribution of noxious weed
seed]
94.45 Powers and authority of the department.
94.46 Stop sale; penalties; enforcement.
94.69 Pesticides; rules.
94.76 Honeybee disease and pest control.
146.60 Notice of release of genetically engineered
organisms into the environment.
169.04 Possession of live wild animals.
169.06 Introduction, stocking, and release of wild
animals.
