The statement of scope for this rule, SS 024-20, was approved by the Governor on April 20, 2020, published in Register No. 772B on April 27, 2020, and approved by the Natural Resources Board on May 27, 2020. This rule was approved by the Governor on insert date. ORDER OF THE STATE OF WISCONSIN NATURAL RESOURCES BOARD
REPEALING, RENUMBERING, AMENDING, REPEALING AND RECREATING AND CREATING RULES
The Wisconsin Natural Resources Board proposes an order to repeal ch. NR 109 and 345.04 (2) (ir) 6. (Note); to renumber NR 193.61 (1); to amend NR 1.06 (8), 150.20 (1m) (qm), (2) (a) 20. and 21., 193 .32 (1) (f), 193.51 (1) (b) (intro.), (c) and (3) (c) (intro.), 193.53 (3), 193.63 (3) and (4), 193.65 (1), 329.04 (2) (f) 8., 345.04 (2) (h) (intro.), 1., (ir) 4., 5. (Note), and 6.; to repeal and recreate ch. NR 107 and to create NR 193.51 (3) (c) 3. and 4., 193.53 (2) (e) and 193.61 (1g) relating to aquatic plant management, manual removal and mechanical control regulations, aquatic habitat protection, and surface water grants and affecting small business. |
WY-29-19
Analysis Prepared by the Department of Natural Resources
1. Statute Interpreted:
2. Statutory Authority:
3. Explanation of Agency Authority:
This order implements s. 23.22 (2) (c), Stats., which directs the department to promulgate rules to establish a procedure to award cost-sharing grants to control invasive species. The rule establishes the criteria for determining eligible projects and eligible public and private grant recipients, allowing cash and non-cash contributions as eligible cost share, and considers the recommendations of the Invasive Species Council. This order implements s. 23.24, Stats., which directs the department to promulgate rules to administer and establish requirements for the issuing of aquatic plant management permits, establish fees, and waive permit requirements for certain activities. The rule authorizes the department to implement efforts to protect and develop diverse and stable communities of native aquatic plants and regulate how aquatic plants are managed. The rule also authorizes the department to require that an application for a permit contain a plan as to how aquatic plants will be managed. This order implements s. 281.17 (2), Stats., which requires the department to supervise chemical treatment of waters for the suppression of nuisance-producing organisms that are not specifically regulated under s. 23.24 (2), Stats. This order implements s. 281.69, Stats., which directs the department to promulgate rules to establish and administer a cost-sharing program to award grants to eligible recipients for lake management projects that improve or protect the quality of water in lakes or the quality of natural lake ecosystems, and for lake classification projects that will classify lakes by use and implement protection activities based on their classification. The rule also allows the department to award contracts for lake classification technical assistance. Section 281.69, Stats., also directs the department to promulgate rules to administer and determine eligible recipients and activities for lake management projects and lake classification projects. This order implements s. 281.70, Stats., which directs the department to establish and administer a cost-sharing program to award grants to eligible recipients for river planning projects and river management projects. The rule designates eligible activities for planning, management and education, and the types of natural riverine ecosystems that are eligible for funding and allows the department to approve river management plan recommendations for funding under s. 281.70, Stats. 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:
