4. Related Statutes or Rules:
Chapter NR 40 creates a comprehensive, science-based system with criteria to classify invasive species into two categories: "prohibited" and "restricted." With certain exceptions, the transport, possession, transfer and introduction of prohibited species is banned. The regulations are aimed at preventing new invasive species from getting to Wisconsin and enabling quick action to control or eradicate those that are here but not yet established. The rule also includes preventive measures that are not species-specific but instead address common pathways that may allow invasives to spread. These measures complement existing statutes and rules such as the viral hemorrhagic septicemia (VHS) rules, for example, and include requirements to remove aquatic plants and animals and drain water from vehicles, boats, trailers and equipment upon removal from the water and to remove aquatic plants and animals from any vehicle, boat, trailer or equipment before placing it in any water of the state or transporting it on a highway. Chapter NR 193 establishes procedures for awarding cost-sharing grants to public and private entities to protect and improve the waters of Wisconsin. Rules under this chapter outline grant programs supporting aquatic invasive species control and prevention. This chapter outlines a grant program that provides financial assistance for surface water planning and management projects benefitting the waters of Wisconsin. Grants awarded under this chapter may be used for education, planning and management projects conducted for the benefit of surface water or aquatic ecosystems. Lake protection funding is available for projects benefitting lakes and lake ecosystems. Lake management grants that include natural resource enhancement services are available for projects benefitting public inland lakes. River protection funding is available for activities benefitting rivers and riverine ecosystems. Aquatic invasive species control funding is available for aquatic invasive species projects conducted on surface waters of the state, including lakes, rivers, streams, wetlands, and the Great Lakes.
5. Plain Language Analysis:
The aquatic plant management program regulates the chemical, mechanical, physical and biological control of aquatic organisms in order to protect and develop diverse and stable native aquatic plant communities. The program is currently regulated under two separate but related administrative rules, ch. NR 107, Wis. Adm. Code – chemical control and ch. NR 109, Wis. Adm. Code – mechanical, physical, burning, and manual control. The proposed recreated ch. NR 107, Wis. Adm. Code, will unify all control activities under a consistent set of procedures and policies that align with current state and federal law, improving administrative consistency and efficiency as well as customer service. The proposed rule will also update the program to employ contemporary management practices such as integrated pest management to control aquatic invasive and nuisance-causing species. Under the current program, wetland management is not separated from other surface waters and the requirements are not reflective of current best management practices. The proposed rule will create a section specific to the conditions, treatment timing and reporting relevant to wetland control. In addition, the proposed rule creates a waivers section, which clarifies existing waivers and adds multiple waivers, primarily for activities in wetland environments.
Under the current program, approximately 1,000 to 1,200 ch. NR 107 permits for small waterbodies such as ponds and stormwater management facilities are issued annually. The majority are reapplied for each year for the same control activity. In addition, the original pond definition in ch. NR 107, Wis. Adm. Code, does not effectively incorporate waterbodies such as stormwater ponds and ponds owned in common such as through homeowner’s associations (HOA’s). The proposed rule will create a section specific to ponds less than 10 acres, which allows for five-year permits and fewer regulatory requirements. The current program requires public notification for large-scale chemical control via newspaper ad. The proposed rule expands riparian and public notification to all control methods and implements modernized methods of notification such as website posts, social media outreach, and newsletters. Under the proposed rule, the department will assume responsibility for public notification of the intent to submit a permit, in order to reduce the requirements for permit applicants.
Under the current program, chemical control is limited to areas within 150 feet from shore in most circumstances and the scope and scale of large-scale chemical control is determined by a strict surface acreage threshold. In addition, plans for aquatic plant management are only required in some cases for mechanical control and there are no provisions for evaluating the success and impacts of ongoing aquatic plant management activities. The proposed rule will update the thresholds for large-scale control activities in wetlands and lakes following current scientific understandings, incorporating an evaluation component for control activities expected to impact a broad area. The proposed rule will also require a plan in most situations so waterbodies can implement multiple control techniques together under one set of goals and objectives and operate under multiyear permits in some instances.
The recreated rule also will update citations, references, and notes to appropriate statutes and administrative codes and include other housekeeping changes.
Several updates are proposed to ch. NR 193, Wis. Adm. Code, the administrative rule governing the Surface Water Grant Program, that bring the rule into greater alignment with the recreated ch. NR 107, Wis. Adm. Code. Aquatic plant management and protection plans outlined under the proposed s. NR 107.05, Wis. Adm. Code, are included as eligible projects for surface water planning grants. Plan approval language was added to include conditions specified under the proposed s. NR 107.05 (3) (c), Wis. Adm. Code. Other non-substantive changes are proposed to achieve consistency in definitions and terminology across the recreated chapters. Finally, updates to Subchapter IV of ch. NR 193, Wis. Adm. Code, are suggested to align with s. 281.69 (1b) (ae), Stats., regarding grant eligibility for floating treatment wetland systems. Additions include: stipulations for eligibility determination mirroring those considered for individual permits issued under s. NR 30.12 (3m) (c), Wis. Adm. Code, a note about the eligibility of floating treatment wetland systems, and the allowable use of stormwater technical standards developed under Subchapter V of ch. NR 151, Wis. Adm. Code. 6. Summary of, and Comparison with, Existing or Proposed Federal Statutes and Regulations:
The proposed changes for aquatic plant management program are in accordance with federal regulations:
—Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). The EPA approves pesticide products for use, classifies according to toxicity and evaluates safety. These rules apply to everyone. The proposed rule revision clarifies the use of these products in waters of the state.
—The Clean Water Act (CWA) regulates waters in the United States, including setting minimum water quality standards, and regulates additives in waters as pollutants. According to the Cotton Council Decision in Federal Court, 553 F.3d 927 (6th Cir. 2009), additives, including pesticides, are required to have a National Pollutant Discharge Elimination System (NPDES). In Wisconsin, the department issues Wisconsin Pollutant Discharge Elimination System (WPDES) in lieu of NPDES, thereby regulating the use at the state level rather than federal level. 7. Comparison with Similar Rules in Adjacent States:
Michigan
The Michigan department of Environment, Great Lakes and Energy (EGLE), issues permits for aquatic plant management (APM) using pesticides. Special permit conditions are implemented when chemical treatment may negatively impact threatened or endangered species or result in a public health hazard. Permit application fees vary between $75 to $1,500 depending on the acreage proposed for treatment. Michigan EGLE staff may limit the size of treatments for native control projects. A permit is generally not required for mechanical harvesting or manual cutting. Other physical APM activities such as hand-pulling, diver assisted suction harvesting (DASH), benthic mats, weed rollers, and dredging require a permit from Michigan EGLE.
Applicants may also choose to apply for a Certificate of Coverage (COC) under a General Permit (GP) in place of an individual or standard permit for chemical control. Aquatic nuisance control activities covered under a COC must be determined by EGLE to not negatively impact human health and have no more than minimal short-term adverse impact on the natural resources or environment. The GPs for ponds and Great Lakes canals and marinas in Michigan have pre-qualified waterbody lists.
Permits for chemical control typically require the permittee to notify waterfront owners within 100 feet of the area of impact 7 to 45 days before the initial treatment of the season. The notification must be in writing and must include permittee contact information, the list of pesticides and corresponding water use restrictions, and approximate treatment dates. Signs must be posed the day of treatment along the shoreline of treatment areas.
Whole lake chemical treatment must have a Lake Management plan (LMP). The LMP must include the physical and biological characteristics of the waterbody, management goals, history of waterbody management, water quality information, vegetation management plan, description of nuisance conditions, and planned monitoring and evaluation.
Minnesota
Minnesota DNR requires an Invasive Aquatic Plant Management (IAPM) permit for the management of invasive plants that involves either mechanical removal of plants or application of herbicides to public waters. In order to receive an IAPM permit, target invasive aquatic plants must be found in the proposed treatment area and the treatment method must be selective for the target plants. Additionally, the treatment must minimize potential negative impacts to aquatic habitat and water quality. A permit must also include a justification such as providing riparian access, enhancing recreational use, controlling invasive aquatic plants, managing water levels, or protecting habitat.
A permit is also required for APM activities below the ordinary high-water mark. This includes mechanical and pesticide control of nuisance aquatic plants, transplanting aquatic plants into public waters, relocating or removing bogs, and installing or operating an automatic aquatic plant control device. Permits may be issued to property owners, lake organizations, or local governments. Herbicide control cannot exceed 15% of the littoral area. Mechanical control (or a combination of mechanical and herbicide) cannot exceed 50% of the littoral area. However, a variance can be filed to allow a larger percentage of littoral area to be controlled.
A map of the treatment site and the signatures of affected landowners are required for chemical control permits. Prior to permit issuance, a DNR field inspection is required (but may be waived by the local invasive species specialist). Delineation surveys should be conducted on a seasonal basis for permitted activities. Permit conditions may include limits on the amount of control, restrictions on the methods and timing of control, restrictions on the target species, requirements for supervision of the control, and public notification requirements.
Illinois
Illinois DNR requires any person, company, or organization that wishes to conduct aquatic plant control (chemical or non-chemical) in the Fox Chain O’Lakes to obtain a Letter of Permission (LOP). To obtain an LOP, a completed application and map of treatment area is needed. Individual property owners with a titled portion to the bottom of the waterbody do not need an LOP if they plan to treat 0.25 acres or less. A LOP is not needed for waterbodies outside the Fox Chain O’Lakes.
For waterbodies outside of the Fox Chain O’Lakes, herbicides may be applied by property owners that own a portion of the lake bottom. Property owners must also ensure herbicides do not affect neighboring portions. For a whole lake treatment, permission of all bottom owners is required. Property owners may apply their own herbicide if it is categorized as a General Use pesticide. Restricted Use pesticides must be applied by a person with a pesticide license.
Illinois EPA has an NPDES general permit for pesticides that are applied to, over, or near Illinois waters. Private water owners with waters that discharge to waters of the state are covered under this permit. To be covered under the general permit, private water owners must submit a Notice of Intent (NOI) 14 days prior to pesticide application. There is an annual threshold level of 80 acres. If the annual threshold is exceeded, a Pesticide Discharge Management Plan (PDMP) is required in addition to the NOI. As part of the NOI, the pond owner must contact the Illinois DNR to check for threatened and endangered species in the treatment area. If the waterbody is an artificial impoundment less than 10 acres, it is exempt from the threatened and endangered species consultation. Private waterbodies that do not discharge to state waters do no need an NPDES permit for chemical treatment of aquatic plants.
Iowa
Iowa DNR requires permits for the introduction and removal of aquatic plants in public waters. These permits may be issued for one to five years. For physical removal permits, plants must be removed by hand-cutting, hand-pulling, hand-raking, or mechanical cutting only. Plants should only be removed to establish a travel lane and all removed plant material must be left in place or collected and composted on the same land owned or used by the permittee.
Permits are also required for cities and counties to use chemical control of aquatic vegetation in water intake structures. For all public waters and some private waters, a permit is required for chemical control of aquatic plants. For chemical control permits, the permittee must have written permission of impacted littoral and riparian landowners. For class C waters, permittees must submit an “Aquatic Pesticide Application to Prohibited Waters” permit application about one month prior to treatment. For Outstanding Iowa Waters (OIW), permittees must apply for an individual national pollution discharge elimination system (NPDES) permit. There is no application form, so permittees must send a letter indicating their intent to apply. If a lake is not a class C or OIW, herbicide can be applied by a certified applicator without a specific permit under a general permit. For all lakes regardless of classification, records must be kept, and best management practices followed.
A dock owner may remove aquatic vegetation without a permit if the aquatic vegetation creates a hazardous or detrimental condition in the boating area around the dock or covers a minimum of 75% of the boating area around the dock. A dock permittee is limited to the removal of vegetation in a 20-foot radius around the dock, removal of a hazardous condition, or creation of a 15-foot-wide boating pathway. Removal method is limited to hand-cutting, hand-pulling, hand-raking or mechanical cutting devices, excluding automated plant control devices that disturb the bottom substrate.
9. Summary of Factual Data and Analytical Methodologies Used and How Any Related Findings Support the Regulatory Approach Chosen:
The department’s strategic analysis of APM in Wisconsin was conducted to help decision-makers and the public to better understand the program and to aid in the crafting of the proposed rule. The final strategic analysis report summarizes current information on APM, including known and possible environmental impacts, applicable regulations, economic considerations and potential management alternatives for the future. The report references over 500 peer reviewed scientific literature articles, social surveys of stakeholders, and historical environmental analyses. Current scientific and practical understandings of aquatic plant management support integrated pest management as the modern solution for the long-term management of invasive and nuisance-causing species.
The stakeholder surveys identified four major themes, which are supported in the proposed regulatory structure:
1. Reduce aquatic plant abundance when plants are impeding use of a waterbody.
2. Non-native species control. In some cases, this may include attempts to eradicate a non-native plant species, depending on the species to be controlled or the extent of its spread within a waterbody. In other cases, the goal may be to keep the population of a non-native species from becoming overabundant rather than to remove the population completely.
3. Ecological protection and restoration. Removal of a population that is negatively impacting a lake ecosystem, preservation of biodiversity and habitat, and lake or ecosystem services protection are also drivers of APM.
4. Public education and outreach. Private service providers and department staff as well as lake organization representatives also see APM as an opportunity to educate the public on aquatic ecology and water quality. This goal was described by a subset of interviewees, while the above three goals were well-represented within most interviews.
Additionally, permit data and control records were examined to determine the types, locations and frequency of aquatic plant control in the state over time. This data was used to support the proposed regulatory framework for large-scale control, pond classifications, public notification and riparian notification.
10. Analysis and Supporting Documents Used to Determine the Effect on Small Business or in Preparation of an Economic Impact Report:
The department reviewed a list of known private service consultants and contractors for aquatic plant management activities in the state and estimated the number that were likely to meet the definition of a small business, based on staff knowledge of the businesses. The department used a list of all permits from 2019 and 2020 to determine how many permits individual businesses submit as agents of the permit applicant.
Permit data and control records were examined to determine the types, locations and frequency of aquatic plant control in the state over time. This data was used to support the proposed regulatory framework for large-scale control, pond classifications, public notification and riparian notification.
11. Effect on Small Business (initial regulatory flexibility analysis):
The proposed rule provides a net benefit to small business impacted by the rule. The proposed planning and evaluation components are likely to increase opportunities for business growth in the state. In addition, the proposed rule indirectly reduces the compliance requirements for small businesses by:
—Incorporating less stringent compliance or reporting requirements, less stringent schedules or deadlines for compliance or reporting, and consolidation or simplification of reporting requirements in multiple ways.
—Incorporating fewer permitting and reporting requirements, and supplying exemptions from public notification for small waterbodies under 10 acres in some instances.
—Incorporating fewer permitting and reporting requirements for wetland management.
—Incorporating permit amendment options in some instances after the permit has been approved.
—Incorporating multiple options for public or riparian notification and removing the requirement of public notification of the intent to submit a permit from the applicant’s responsibility.
12. Agency Contact Person: Madi Johansen – WY/4, Department of Natural Resources, P.O. Box 7921, Madison, WI 53707-7921; madison.johansen@wisconsin.gov; (608) 712-2798 13. Place where comments are to be submitted and deadline for submission:
Written comments may be submitted at the public hearings, by regular mail, or email to:
