Environmental Impact
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
Rule summary
The proposed rule package amends Ch.
NR 27
, Wis. Adm. Code to add four species of bats to the endangered and threatened species list. This addition to the invasives list is being proposed as both an emergency rule,
ER-37-10 (E), and a permanent rule, ER-35-10.
State fiscal estimate
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 fiscal estimate
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 entities fiscal impact
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.
It is assumed the impact to farmers of this rule change will be positive; especially, in light of the fact that if bat populations in the state were to be devastated, the costs to agriculture from pest destruction and pesticide use would increase.
State fiscal impact
Indeterminate. Increase costs — May be possible to absorb within agency's budget.
Local government fiscal impact
Indeterminate. Increase costs — Permissive.
Types of local governmental units affected
Towns, Villages, Cities, Counties.
Agency Contact Person
Erin Crain
Bureau of Endangered Resources
P O Box 7921
101 S. Webster Street, ER/6
Madison, WI 53707-7921
Phone: (608) 267-7479
Notice of Hearing
Natural Resources
Fish, Game, Forestry, etc., Chs. NR 1—
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 proposed emergency and permanent rules 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.
October 25, 2010
Conference Room 1
DNR Oshkosh Service Center
625 E. County Rd. Y
Oshkosh
October 26, 2010
Glaciers Edge & Gathering Waters Rms.
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 Headquarters
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 Ms. 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 Rules 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
Statutory authority
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 or rule
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]
15.347 (18)
Invasive species council.
23.24
Aquatic plants.
29.011
Title to wild animals.
29.604
Endangered and threatened species
protected.
29.614
Scientific collector permit.
29.885
Removal of wild animals.
29.924
Investigations; Searches.
30.07
Transportation of aquatic plants and animals;
placement of objects in navigable waters.
94.01
Plant inspection and pest control authority.
94.02
Abatement of pests.
94.03
Shipment of pests and biological control
agents; permits.
94.69
Pesticides; rules.
169.04
Possession of live wild animals.
169.06
Introduction, stocking, and release of wild
animals.
169.07
Exhibition of live wild animals.
169.08
Propagation of wild animals.
169.10
Sale and purchase of live wild animals.
169.11
Harmful wild animals.
Comparison with federal regulations
We are not aware of any existing or proposed federal regulations that would list the fungus,
Geomyces destructans
, as an invasive species.
Comparison with rules in adjacent states
Wisconsin appears to be unique in taking the approach of listing the fungus,
Geomyces destructans
, as an invasive species; we are not aware of any other states or provinces that have taken similar actions. We don't know of any other states that have a similar mechanism—an invasive species rule— for listing the fungus. We are also not aware of any existing or proposed federal regulations that would list the fungus,
Geomyces destructans
, as an invasive species.
Summary of factual data and analytical methodologies
White-nose Syndrome (WNS) is a disease responsible for unprecedented mortality in cave hibernating bats and is identified by the white fungus (
Geomyces destructans
) that grows on the nose, ears, and muzzle and/or wing membrane. Infected bats exhibit atypical behavior, such as daytime activity during winter hibernation, which rapidly depletes stored energy reserves. Wing damage and emaciation are also common.
WNS has been documented in fourteen states and two Canadian provinces, is spreading rapidly from the first affected sites (up to 800 miles per year). The speed at which WNS is spreading necessitates immediate action on the part of the department to list the white-nose fungus as a prohibited invasive species. Based on the current location and known rate of spread of the disease, it is likely that WNS will reach Wisconsin as early as January 2011.
This rule was developed with the assistance of the Bureaus of Endangered Resources and Legal Services and with input from the Wisconsin Council on Invasive Species (Council). The Bureau of Endangered Resources prepared an Issue Brief for the Council, which provided background on white-nose syndrome, the extent and serious nature of the threat of the disease to Wisconsin's cave bats, and the need for listing
Geomyces destructans
as a prohibited invasive species.
Analysis and supporting documents used to determine effect on small business
Affected constituencies include commercial caves and mines, private cave and mine owners, recreational cavers, property owners, the agricultural industry, and the conservation community. Concerns will likely include how listing the fungus will affect current activities. Many of these potential concerns may be addressed through cost-sharing, technical support, and education provided by the department. Examples include: reviewing proposed research proposals and issuance of scientific research licenses, cost-sharing for installation of bat gates and other conservation actions, providing cave closure signage and decontamination protocols, and providing locations of caves that may be used for recreational caving activities (where bats are known to have been excluded).
Under NR 40, the department may ask any person who owns, controls, or manages property where a prohibited species is present to control the prohibited species in accordance with a plan approved by the department. While a person who owns, controls or manages property where a prohibited species is present is responsible for controlling the prohibited species that exists on the property, the department will seek funds to assist in the control of prohibited species. Therefore, conducting control measures will not necessarily result in a cost to commercial cave operators. Additionally, commercial caves will have the option to exclude bats from their cave(s) with the help of the department, allowing them to remain open for tourism, and resulting in no loss of tourism dollars.
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.
Under s.
227.19 (3m)
, Wis. Stats., a final regulatory flexibility analysis is not required.
Small business regulatory coordinator
Environmental Impact
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 government
The proposed rule package will require time by DNR staff to prepare the rule and administer rule hearings. In addition, once the rule is implemented DNR staff time associated with NR 40 will require increased surveillance and treatment. It is assumed all of the increased time will be possible to absorb within the Department's current budget.
Local government
It is assumed there will be no increase in local government costs associated with this rule.
Private entities
Once the rule is implemented, there will be no costs to private land owners to follow invasives law. As with the existing law, if private land owners do not allow DNR on their land or if they intentionally move the invasive species, there will be an associated penalty cost if NR 40 is not followed.
State fiscal effect
Indeterminate. Increase Costs - May be possible to absorb within agency's budget.
Local government fiscal effect
None.
Agency Contact
Erin Crain
Bureau of Endangered Resources
P O Box 7921
101 S. Webster Street, ER/6
Madison, WI 53707-7921
Phone: (608) 267-7479
Notice of Hearing
Natural Resources
Environmental Protection — Water Supply,
Chs. NR 800—
DNR # DG-34-10
NOTICE IS HEREBY GIVEN That pursuant to ss.
227.11 (2) (a)
and
281.346 (4s)
,
(5)
, and
(9)
, Stats., the Department of Natural Resources will hold public hearings on the creation of Chapter
NR 860
— Water Use Permitting, relating to the application and permit process for withdrawals of water from the Great Lakes basin.
Hearing Information
The hearings will be held on:
October 13, 2010
DNR Milwaukee SER Headquarters
Wednesday
Rooms 140-141
at 2:00 p.m.
2300 N. Dr. Martin Luther King Jr. Dr.
Milwaukee, WI
Concurrent sessions will be held at the following two locations:
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 James McLimans at (608) 266-2726 with specific information on your request at least 10 days before the date of the scheduled hearing.
Copies of Proposed Rules and Submittal of Written Comments
The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded and comments electronically submitted at the following Internet site:
http://adminrules.wisconsin.gov
. (Search this Web site using the Natural Resources Board Order No. DG-34-10. Written comments on the proposed rule may be submitted via U.S. mail to Ms. Kristy Rogers, Bureau of Drinking Water and Groundwater, P.O. Box 7921, Madison, WI 53707 or by e-mail to
Kristy.Rogers@wisconsin.gov
. Comments may be submitted until
October 31, 2010
. Written comments whether submitted electronically or by mail will have the same weight and effect as oral statements presented at the public hearings. If you do not have Internet access, a personal copy of the proposed rule and supporting documents may be obtained from Kristy Rogers, Bureau of Drinking Water and Groundwater, P.O. Box 7921, Madison, WI 53707 or by calling (608) 266-9254.
Analysis Prepared by Department of Natural Resources
Statute interpreted
Section
281.346
( 4m), (4s), (5), (5m), (6) and (9), Stats.
Statutory authority
Plain language analysis
This rule supports the implementation of
2007 Wisconsin Act 227
and the Great Lakes—St. Lawrence River Basin Water Resources Compact (Compact) by defining the process, requirements, and criteria for water use permitting in the Great Lakes basin. Beginning on December 8, 2011, coverage under a general permit or an individual permit is required for all persons who withdraw water from the Great Lakes basin in an amount that averages 100,000 gallons per day or more in any 30-day period. The rule establishes definitions, permit application information requirements, permit review time limits, required permit conditions, criteria for permit issuance, procedures for amending and terminating permits, and standards and procedures for public participation for the water use permitting program.
Summary of factual data and analytical methodologies
Information from the Great Lakes-St. Lawrence River Basin Water Resources Council, other Great Lakes states, existing state statutes, and existing department rules and procedures were used to guide the development of the proposed rule.
Comparison with federal regulations
There are no comparable federal regulations pertaining to withdrawals of Great Lakes basin water.
Comparison with rules in adjacent states
The following table compares permitting requirements for water withdrawals in adjacent states.
Wisconsin
|
Michigan
|
Illinois
|
Iowa
|
Minnesota
|
A water use general permit is required for withdrawals from the Great Lakes basin that average 100,000 gallons per day or more in any 30 day period. A water use individual permit is required for withdrawals from the Great Lakes basin that equal at least 1,000,000 gallons per day for any 30 consecutive days.
|
Permits are required for new and increased withdrawals of more than 2,000,000 gallons per day, new or increased withdrawals of more than 1,000,000 gallons per day if the withdrawal will have a certain type of impact (Zone C withdrawal), and new or increased intrabasin transfers of more than 100,000 gallons per day average over any 90-day period.
|
An allocation permit is required for withdrawals from the Great Lakes basin.
|
Water use permits are required of any person or entity that withdraws at least 25,000 gallons in a 24-hour period during any calendar year.
|
Water use permits are required for withdrawals greater than or equal to 10,000 gallons per day or 1 million gallons per year from surface or groundwater.
|
Analysis and supporting documents used to determine effect on small business
The department lacks complete data on the number and nature of operations withdrawing water above the thresholds requiring a permit. However, based upon the withdrawal data that does exist (e.g. high capacity well pumpage data), most small businesses are expected to fall within the general permit category with very few needing to obtain an individual permit.
Small Business Impact
This rule will affect small businesses that supply their own water with water supply systems that withdraw an average of 100,000 gallons per day. Small businesses, like other entities that are affected by this rule, will have to obtain a permit, measure the amount of water used on a monthly basis, and report that water use annually. Small businesses that receive water solely from a public water supply will not be impacted by this rule. Most small businesses regulated by this rule are expected to fall within the general permit category. The general permit requirements are straightforward and can be accomplished by most individuals with no specific professional background. The application for an individual permit may require the hiring of a professional environmental consultant to assist with the evaluation of impacts from a proposed withdrawal.
Pursuant to s.
227.114
, Stats., it is not anticipated that the proposed rules will have an economic impact on small businesses.
Small business regulatory coordinator
Environmental Impact
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
A fiscal estimate has been prepared and a full copy can be obtained following the procedures set forth above. The rule is expected to have a minimal fiscal impact on existing withdrawers. New withdrawers and existing withdrawers that wish to increase their withdrawal will be required to apply for a permit. Preparation of the permit application may require the hiring of a consultant. The costs for a consultant will vary depending on the size of the withdrawal and potential impacts. There is little-to-no expected increase in annual costs for withdrawers. In most cases, the withdrawal measurement and annual reporting requirements are consistent with other existing Department requirements.
Agency Contact Person
Kristy J. Rogers, Water Supply Specialist
Wisconsin Department of Natural Resources
Bureau of Drinking Water & Groundwater
Phone: (608) 266-9254
