Rule-Making Notices (Hearing Notices)

Wausau, WI 54401

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 Stacy Rowe at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Rule and Submittal 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. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Stacy Rowe, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail]. Comments must be submitted by 4:00 p.m. on November 29, 2010. 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 Ms. Rowe.

Analysis Prepared by the Department of Natural Resources

Plain language analysis

The proposed changes to Ch. NR 27, Wis. Admin. Code, will add the four cave bat species in Wisconsin to the Wisconsin threatened species list. The four species include the little brown bat (Myotis lucifugus), big brown bat (Eptesicus fuscus), northern long-eared bat ( Myotis septentrionalis), and eastern pipistrelle (Perimyotis subflavus).

Related statute(s) or rule(s)

Section 29.604 (3), Wis. Stats., requires the department to establish an endangered and threatened species list. Chapter NR 27, Wis. Admin. Code, provides the list of endangered and threatened species.

Comparison with federal regulations

Although several species of cave bats are listed federally by the United States Fish and Wildlife Service (USFWS), we are not aware of any listings that have occurred specifically due to white-nose syndrome. However, USFWS has received a petition to list two cave bat species due to white-nose syndrome and is in the process of reviewing the petition.

Comparison with adjacent states

Vermont, New York and Massachusetts are in the process of listing several cave bat species due to white-nose syndrome. The Minnesota Department of Natural Resources has recently proposed the little brown bat (Myotis lucifugus) and big brown bat (Eptesicus fuscus) as species of special concern because of the eminent threat of white-nose syndrome in the state. The other two species of cave bats in Minnesota, northern long-eared bat (Myotis septentrionalis) and eastern pipistrelle (Perimyotis subflavus) are already listed as species of special concern in Minnesota.

Data and analytical methodologies

The proposed emergency rule is related to the addition of Wisconsin's four cave bat species to the state's threatened species list. The four species include the little brown bat (Myotis lucifugus), big brown bat (Eptesicus fuscus), northern long-eared bat (Myotis septentrionalis), and eastern pipistrelle (Perimyotis subflavus).

The proposed rule change seeks to provide protection to Wisconsin cave bat species, which face the imminent threat of white-nose syndrome. White-nose syndrome has spread across 14 states and two Canadian provinces in the last three years, spreading up to 800 miles per year. Mortality rates of affected bat colonies reach 100%. The disease was located last spring within 225 miles of Wisconsin's southern border and 300 miles from the northern border. Because the known dispersal distance of the little brown bat is 280 miles, an affected cave is now located within the dispersal range of Wisconsin little brown bats. Based on the current location and known rate of spread of the disease, we anticipate the presence of white-nose syndrome in Wisconsin as early as January 2011.

Wisconsin has one of the highest concentrations of cave bat hibernacula in the Midwest and large numbers of cave bats from neighboring states hibernate in Wisconsin. Consequently, Wisconsin's cave bat population, and those of surrounding states, is threatened by this devastating disease. All Wisconsin bat species are among the species fatally affected by the white-nose syndrome.

Cave bats were assessed for changes in population condition using the following triggers established by the Bureau of Endangered Resources:

1.   Significant change in the Natural Heritage Inventory State Rank since 1997

2.   Significant change in the Natural Heritage Inventory Global Rank since 1997

3.   Change in United States Endangered Species Act status since 1997

4.   Is there a need for immediate protection (i.e., new threat)

5.   Change in other statuses, e.g., International Union for Conservation of Nature (IUCN), Convention on International Trade in Endangered Species (CITES)

6.   New data on population condition available

7.   Recommended for listing/delisting since 1997

8.   Taxonomic change

9.   For currently listed species, have recovery goals been met

All four cave bat species met triggers #1 and #4, and the little brown bat also met trigger #7 (recommended for listing by stakeholders), therefore indicating the need for the emergency rule change.

Listing these species before white-nose syndrome has been detected in Wisconsin will allow the department time to work collaboratively with stakeholders to ensure that appropriate conservation measures are developed and in place. Because of the speed of white-nose syndrome, the department would not have time to develop appropriate conservation measures if listing was delayed until after white-nose syndrome was detected in Wisconsin.

Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:

None.

Small Business Impact

Affected constituencies include commercial caves and mines, private cave and mine owners, recreational cavers, wildlife rehabilitators, animal control operators, the agricultural industry, the conservation community, wind utilities, WI Department of Transportation (WDOT) and homeowners. Concerns will likely include how listing the bats will affect current activities. Many of these potential concerns will be addressed through a broad incidental take permit/authorization and voluntary agreements so that the listing does not have a significant economic impact on a substantial number of small businesses.

A broad incidental take permit/authorization would be created, as provided for under s. 29.604, Wis. Stats. The broad incidental take permit/authorization would allow for the incidental taking of state listed cave bats that may occur as a result of specific public health concerns, bat removals, building demolitions, forestry activities, bridge demolitions, miscellaneous building repairs and wind energy development projects (see the “Broad Incidental Take Permit/Authorization for Cave Bats" attachment for more information). Some take of bats may still occur as a result of these activities, however take will be minimized by following specific minimization measures, and the department has concluded that the projects covered under this permit are not likely to jeopardize the continued existence and recovery of the state population of these bats or the whole plant-animal community of which they are a part; and has benefit to the public health, safety or welfare that justifies the action. This incidental take permit/authorization is only needed when a bat is present or suspected to be present (e.g., Natural Heritage Inventory report of bats in the area, evidence of bat presence).

Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses. The department's Small Business Regulatory Coordinator may be contacted at [e-mail] or by calling [phone].

Environmental Analysis

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.

Agency Contact

Erin Crain, EIM Section Chief

P.O. Box 7921

101 South Webster Street, ER/6

Madison, WI 53707-7921

Phone: [phone]

Email: [e-mail]

Amended Notice of Hearings

(See Register dated October 14, 2010 for original)

Natural Resources

Fish, Game, etc., Chs. NR 1—

rulemaking_notices CR 10-115 EmR 1036, CR 10-115

DNR # IS-42-10(E) and IS-41-10

NOTICE IS HEREBY GIVEN that pursuant to ss. 23.09 (2), 23.22, 227.11 (2) and 227.24, Stats., the Department of Natural Resources will hold public hearings on the emergency and permanent rule proposals to list the fungus, Geomyces destructans, as a prohibited invasive species in s. NR 40.04 (2), Wis. Adm. Code. The hearings will be held concurrently with hearings to list four cave bat species as threatened in s NR 27.03 (3), Wis. Adm. Code.

Hearing Information

The hearings will begin at 11:00 am at the locations listed below. Following a brief informational presentation, public comments and statements will be accepted.

Tuesday, October 26, 2010

DNR South Central Region Headquarters

Glaciers Edge and Gathering Waters Rooms

3911 Fish Hatchery Road

Fitchburg, WI 53711

Monday, November 29, 2010

Green Bay State Office Building

Room 618

200 North Jefferson Street

Green Bay, WI 54301

Monday, November 29, 2010

The Pyle Center

Room 315

702 Langdon Street

Madison, WI 53706

Monday, November 29, 2010

Division of State Facilities, Eau Claire State Office Building

Room 139

718 W Clairemont Avenue

Eau Claire, WI 54701

Monday, November 29, 2010

UW Marathon County

Room 218

518 S. 7th Avenue

Wausau, WI 54401

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 Ms. Rowe at [phone] with specific information on your request at least 10 days before the date of the scheduled hearing.

Copies of Rule and Submittal 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. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Stacy Rowe, Bureau of Endangered Resources, P.O. Box 7921, Madison, WI 53707 or by email to [e-mail]. Comments must be submitted by 4:00 p.m. on November 29, 2010. 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 Ms. Rowe.

Analysis Prepared by the Department of Natural Resources

Plain Language Analysis

The proposed changes to ch. NR 40, Wis. Adm. Code, will add the fungus, Geomyces destructans, to the list of prohibited invasive species, allowing the department to effectively manage its spread and limit human transport.

Existing rules ban the transportation (including importation), possession, transfer (including sale) and introduction of invasive species that are listed or identified as “prohibited", with certain exceptions. Transportation, possession, transfer and introduction without a permit are exempt if the department determines that the transportation, possession, transfer or introduction was incidental or unknowing, and was not due to the person's failure to take reasonable precautions. Existing rules authorize the department to enter property with the permission of the owner or person in control of the property and, if permission cannot be obtained, to seek an inspection warrant from the Circuit Court. Entry is only for the purpose of inspection, sampling or control of prohibited invasive species.

The current rules also allow the department to enter into consent orders with persons who own, control or manage property where prohibited invasive species are present to implement approved control measures, and to issue unilateral orders for control purposes unless the person was not responsible for the presence of the prohibited invasive species. If a control order is not complied with and the department undertakes control measures, the current rules allow for cost-recovery by the department for the expenses it incurred.

Related statute(s) or rule(s)

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]