The primary elements of Wisconsin's waterfowl regulatory process include conducting spring waterfowl surveys, participation in MFC meetings, commenting on federal proposals, and soliciting input from the public. The state process begins with Flyway meetings in February and March each year where staff provide input to the development of federal framework alternatives and requests related to the early seasons. In spring and summer, breeding waterfowl surveys and banding are conducted in support of the regulatory process.
In early July, staff conducted a public meeting to solicit input from interest groups, including representatives of the Conservation Congress Migratory Committee. At this meeting staff provided the attendees with breeding status information and asked for items that they wish the department to pursue at the MFC meeting in mid July. Department staff then attended the MFC Technical and Council meetings. At these meetings, staff was provided status information and the proposed framework alternative from the USFWS. Department staff then worked with the other states in our Flyway to develop proposals and recommendations that were voted on by the MFC. Proposals that passed at the MFC meeting were forwarded to the USFWS for consideration by the Service Regulations Committee (SRC) at their meeting. The SRC recommended its final waterfowl season framework on July 30 and it was announced on August 2. Department staff summarized waterfowl status and regulation information for Wisconsin citizens and presented this information to the Migratory Committee of the Conservation Congress and at a public meeting (Post-Flyway Meeting) of interest groups and individuals on July 31. Staff gathered public input at these meetings regarding citizen suggestions for the development of Wisconsin's waterfowl regulations given the federal framework. Public hearings were held on the permanent version of this rule order from August 2 through 5 around the state to solicit additional input.
Analysis and supporting documents used to determine effect on small business
These rules, and the legislation which grants the department rule making authority, do not have a significant fiscal effect on the private sector or small businesses. Additionally, no significant costs are associated with compliance to these rules.
Small Business Impact
These rules are applicable to individual sportspersons and impose no compliance or reporting requirements for small businesses, nor is any design or operational standards contained in the rule.
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses.
Environmental Analysis
The Department has made a 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.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
This proposed migratory bird season rule is similar to the season in previous years and will not result in any significant changes in spending or revenue. There are no new government costs anticipated due to the provisions of this rule.
State fiscal effect
No state fiscal effect.
Increase costs — May be possible to absorb within agency's budget.
Local government fiscal effect
No local government costs.
Long-range fiscal implications
None.
Agency Contact Person
Kent Van Horn, Staff Specialist
PO Box 7921
101 S. Webster Street, WM/6
Madison, WI 53707-7921
Phone: ( 608) 266-8841
Natural Resources
Fish, Game, Forestry, Recreation, Chs.
NR 1—
DNR # ER-35-10, ER-37-10(E)
NOTICE IS HEREBY GIVEN that pursuant to ss.
23.09 (2),
29.604,
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 four cave bat species as threatened in s.
NR 27.03 (3), Wis. Adm. Code. The hearings will be held concurrently with hearings to list the fungus,
Geomyces destructans, as a prohibited invasive species in s.
NR 40.04 (2), 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.
October 25, 2010 Conference Room 1
DNR Oshkosh Service Center
625 E. County Rd Y
Oshkosh
October 26, 2010 Glaciers Edge and Gathering Waters
Rooms
DNR South Central Region Hdqrs.
3911 Fish Hatchery Road
Fitchburg
October 28, 2010 Room 185
DNR West Central Region Hdqrs.
1300 W. Clairemont
Eau Claire
October 29, 2010 Conference Room 1
DNR Northern Region Hdqrs.
107 Sutliff Avenue
Rhinelander
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 (608) 266-7012 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed 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
stacy.rowe@wisconsin.gov. Comments may be submitted until November 1, 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 Department of Natural Resources
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
29.604 (3)(b), Wis. Stats., has been interpreted as allowing the department the authority to create and amend the list of Wisconsin's endangered and threatened species, NR 27.03, Wis. Adm. Code.
Statutory authority
The state statutes that authorize the promulgation of this rule include ss.
29.604 and
227.11, Wis. Stats.
Explanation of agency authority
These sections grant rule-making authority for the establishment of an endangered and threatened species list to the department.
Related statute or rules
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.
Plain language analysis
The proposed changes to Ch.
NR 27, Wis. Adm. 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).
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 rules in 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.
Summary of factual 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 2 Canadian provinces in the last 3 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 boarder and 300 miles from the northern boarder. 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 were delayed until after white-nose syndrome was detected in Wisconsin.
Analysis and supporting documents used to determine effect on small business
None.
Small Business Impact
Pursuant to s.
227.114, Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses.
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).
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.
Fiscal Estimate
Assumptions used in arriving at fiscal estimate
State fiscal effect
The proposed rule package will require time by DNR staff to prepare the rule and administer rule hearings. Endangered Resources review staff will likely see an increase in time associated with the listing of bats. There will be an increase in the time associated with incidental take permits. It is assumed there will not be a significant increase in staff time, and that this time can be covered by existing appropriations. Staff at the Public Service Commission and the Office of Energy will see an increase in staff time associated with issues surrounding bats and wind farms. These agencies will also see an increase in time associated with incidental permits. It is assumed there will not be a significant increase in staff's time at these agencies.
Local government fiscal effect
It is assumed there will be minimal cost increases to local governments as a result of this rule change. As an example of these minimal costs, local public works departments will need to distribute new local construction permits to include the listing of bats.
Private sector fiscal effect
It is assumed the Department will be issuing a broad incidental take permit associated with the listing. Many private companies such as pest control operators and construction companies will be covered under this broad incident take permit. The impact to wind farms will be determined by the location. Depending on the impact to bats, wind farms may be required to report damages to bats or to perform a determined mitigation.
