ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, AMENDING, REPEALING AND RECREATING, AND CREATING RULES
The statement of scope for this rule, SS 016-12, was approved by the Governor on March 12, 2012, published in Register No. 675 on March 31, 2012, and approved by the Natural Resources Board on June 27, 2012. This rule was approved by the Governor on January 7, 2015. The Wisconsin Natural Resources Board proposes an order to repeal NR 40.04 (2) (b) 6., (c) 4., 5., 12. d. (Note), (e) 2., 3., 5., (3) (d) (Note), 40.05 (2) (f), (3) (d) (Note) and (g); to renumber NR 40.04 (2) (a) 1., (b) 1., 40.05 (2) (b) 1. and (e) 1.; to renumber and amend NR 40.04 (2) (b) 31., (3) (e), 40.05 (2) (b) 37., and (3) (e) (intro.); to amend NR 40.02 (14), (17), (24) (Note), (37), (53), 40.03 (Note), 40.04 (2) (b) (intro.), 2., 3., 7., 8., 11., 12., 13., 14., 16, 22., 24., 30., 32., 36., (c) 12. d., (g) 1., (3) (a), (d), (g) (Note), (4) (f), 40.05 (2) (b) (intro.), 3., 4., 11., 14., 20., 25., 27., 28., 29., 36., 42., 43., (3) (d), (f), (k), 40.06 (1) (a) (Note) and 40.07 (8) (d) (Note); to create NR 40.02 (9m), 40.04 (2) (a) 1g., (b) 1e., 1m., 2e., 2m., 2s., 4g., 4n., 4r., 4w., 10g., 10r., 12g., 12r., 13e., 13s., 18d., 18h., 18p., 18t., 22g., 22r., 24m., 27m., 28e., 28m., 28s., 29d., 29h., 29p., 29t., 33g., 33r., 34b., 34f., 34k., 34p., 34s., 34w., 34y., 37e., 37m, 37s., 40., 41., (c) 12. e., (d) 5m., 8g., 8r., (e) 5e., 5m., 8., (f) 1m., (3) (e) 1., 2., (h) 3., (i), 40.05 (2) (b) 1e., 1e. (Note), 1m., 1m. (Note), 2m., 2m. (Note), 3g., 3g. (Note), 3r., 3r. (Note), 6m., 6m. (Note), 10e., 10e. (Note), 10m., 10m. (Note), 10s., 10s. (Note), 14m., 14m. (Note), 21m., 21m. (Note), 23r., 23r. (Note), 24m., 24m. (Note), 27e., 27e. (Note), 27m., 27m. (Note), 27s., 27s. (Note), 28m., 32g., 32g. (Note), 32r., 32r. (Note), 33e., 33e. (Note), 33m., 33m. (Note), 33s., 33s. (Note), 34m., 34m. (Note), 35m., 35m. (Note), 36m., 36m. (Note), 37m., 37m. (Note), 40g., 40g. (Note), 40r., 40r. (Note), 41m., 45g., 45g. (Note), 45r., 45r. (Note), (c) 5., (d) 1m., 3., 4., (e) 1m., 2., (3) (e) 1., 2., (f) (Note), (k) (Note), (o) 3., (p) and (p) (Note), relating to NR 40 including clarification to the language and changes to the species listed under NR 40.04(2) and NR 40.05(2) Wisconsin’s regulated invasive species list, and affecting small business.
SS-04-12
Analysis Prepared by Department of Natural Resources
1. Statutes Interpreted: In promulgating this rule, s. 227.11 (2) (a), Wis. Stats., has been interpreted as allowing the department the authority to create and amend rules. Section 23.22 (2) (a) and (b) 6., Wis. Stats., has been interpreted as allowing the department the authority to create and amend the list of invasive species in Wisconsin and create related provisions, NR 40, Wis. Admin. Code. 3. Explanation of Agency Authority: Sections 23.22 (2) (a) and (b) 6. grant rule-making authority for regulation of invasive species. 4. Related Statutes or Rules: Section 23.22 (2) (b) 6. Wis. Stats., required the department to establish an invasive species rule. Chapter NR 40, Wis. Admin. Code, provides the lists of invasive species and associated requirements for preventing the introduction and spread of invasive species. 5. Plain Language Analysis: The department’s Invasive Species Team worked with the Wisconsin Invasive Species Council and affected stakeholders to review and propose revisions to ch. NR 40, Wis. Admin. Code, relating to the lists of regulated invasive species. Revisions classify additional invasive species into existing categories established in ch. NR 40, Wis. Admin. Code, making them subject to existing administrative rules and statutes that regulate the introduction, possession, transfer, and transport of invasive species in order to prevent them from becoming established in Wisconsin or to prevent already-established invasive species from spreading within the state. In 2009, during the public input and initial rule drafting of ch. NR 40, it was recognized that many additional species may need to be evaluated and, if appropriate, categorized and listed under this rule. Most of these species are used by some sector of society and require input from the affected stakeholders. The proposed revisions in this Board Order will add species of plants, vertebrates, and invertebrates to the invasive species rule, and will clarify rule language, facilitate compliance, and improve organization of the rule. A summary of the proposed revisions follows, ordered by Board Order section and grouped by the type of revision. Additional supporting documents including the literature reviews for each of the proposed invasive species are available on the DNR’s website (dnr.wi.gov) keyword “invasives.”
Section 1 creates a definition for crayfish in ch. NR 40. Section 2 revises the following NR 40 definitions:
The definition of “disposal” is amended to include the consumption of an invasive species as food.
The definition of “invasive species” is amended to clarify that the department does not consider organisms that are dead as “invasive species”.
The definition of “pet” is amended to clarify that fish, crayfish and other aquatic invertebrates are not pets. Due to the risk posed by fish, crayfish and by other aquatic invertebrates the definition is revised to exclude these organisms from the exemption provided for pets.
The definition of “wild animal” is amended to exclude other aquatic invertebrates.Sections 2 and 32 remove eastern and western mosquitofish from the list of prohibited species under NR 40.04 and adds them to the list of “established nonnative fish species and established nonnative crayfish species” as defined in ch. NR 40.02. “Established nonnative fish species and established nonnative crayfish species” are regulated as a restricted species under ch. NR 40.05 (c) (1). Best management practices (BMPs) to reduce the risk of importing mosquitofish (Gambusia affinis) have been made available, but concerns remain because the BMPs do not provide a guarantee against possible enforcement action. In order to accommodate the use of imported bait that may be contaminated with the species, these revisions move the species from the prohibited category to the in the restricted fish category, “established nonnative fish species.” This revision will not in itself authorize possession of mosquitofish, but would allow the department to permit possession in bait shipments and registered fish farm raceways, subject to specified conditions. This would enable the department to address concerns regarding the potential for dispersal of mosquitofish by bait dealers through additional requirements in permit conditions.
Section 3 clarifies the note on non-regulated species classification and removes the reporting and in-store education suggestions. Additionally, language on the beneficial use of non-restricted invasive species is removed as it creates the false impression that any beneficial use will exempt a species from listing.
Sections 4 and 7 renumber the initial species listed in the NR 40 Prohibited Category to maintain alphabetical order.
Sections 5, 8, 10, 12, 15, 17, 19, 21, 23, 25, 29, 31, 35 and 37 add new species to the NR 40 Prohibited Category. The below species proposed for addition to the prohibited category are invasive species that the department has determined are likely to survive and spread if introduced into the state, potentially causing economic or environmental harm or harm to human health, but which are not found in the state or in those regions of the state where the species are listed as prohibited in s. NR 40.04 (2), with the exception of isolated individuals, small populations or small pioneer stands of terrestrial species, or in the case of aquatic species, that are isolated to a specific watershed in the state or the Great Lakes, and for which statewide or regional eradication or containment may be feasible.
Caulerpa taxifolia (Killer algae)
Achyranthes japonica (Japanese chaff flower)
Akebia quinata (Fiveleaf akebia or Chocolate vine)
Arundo donax (Giant reed)
Azolla pinnata (Mosquito fern)
Berberis vulgaris (Common barberry)
Cardamine impatiens (Narrow leaf bittercress)
Celastrus loeseneri (Asian loeseneri bittersweet)
Centaurea diffusa (Diffuse knapweed)
Centaurea repens (Russian knapweed)
Digitalis lanata (Grecian foxglove)
Dioscorea batatas or Dioscorea polystacha (Chinese yam)
Eichhornia azurea (Anchored water hyacinth)
Eichhornia crassipes (Water hyacinth, floating)
