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Under current ch. 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.
The department will normally follow an informal, stepped enforcement process in order to obtain compliance with invasive species rules. This involves informal discussions between department staff and the individual, landowner or company, notifying the person of potential violations and providing guidance on how to comply with the rules. Notices of non-compliance may follow if necessary. If formal enforcement is necessary, ch. NR 40 will be enforced by department conservation wardens, county district attorneys, and circuit courts through the use of citations and civil or criminal complaints. Civil and criminal enforcement may also be carried out by department referral of violations to the Wisconsin Attorney General, with prosecution and abatement actions in the circuit courts. Criminal enforcement will be limited to intentional violations. Finally, violations of the permits issued under ch. NR 40 also may be enforced by administrative permit revocation proceedings.
Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have an economic impact on small businesses. The department's Small Business Regulatory Coordinator may be contacted at or by calling (608) 266-1959.
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 Estimate:
The proposed rule package will require time by DNR staff to prepare the rule and administer rule hearings. Endangered Resources staff, as well as other Department staff, may see an increase in time associated with the changes to bat management, especially in the decontamination of equipment and in monitoring. It is assumed there will not be a significant increase in staff time, and that this time can be covered by existing appropriations.
Local Fiscal Estimate:
Minimal impact to the few local governments that own caves or mines.
Private Fiscal Impacts:
It is assumed there will be negligible costs associated with this rule. Private landowners with caves may experience some costs associated with restricting cave access, such as posting signs, or with time associated with contractors monitoring on their property, but all potential cost impacts are assumed to be minimal.
The department will also seek funds to assist in the design, installation, and maintenance of physical barriers at all caves.
State fiscal effect
Indeterminate. Increase Costs — May be possible to absorb within agency's budget.
Local government fiscal effect
Agency Contact
Stacy Rowe, Bureau of Endangered Resources
101 S. Webster Street, ER/6
P.O. Box 7921
Madison, WI 53707-7921
Phone: (608) 266-7012
Amended Notice of Hearings
(See Register dated October 14, 2010 for original)
Natural Resources
Fish, Game, etc., Chs. NR 1—
DNR# ER-37-10(E) and ER-35-10
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.
Tuesday, October 26, 2010
Glaciers Edge and Gathering Waters Rooms
DNR South Central Region Headquarters
3911 Fish Hatchery Road
Fitchburg, WI 53711
Monday, November 29, 2010
Green Bay State Office Building
Room 618
200 North Jefferson Street
Green Bay, WI 54301
Monday, November 29, 2010
The Pyle Center
Room 315
702 Langdon Street
Madison, WI 53706
Monday, November 29, 2010
Division of State Facilities
Eau Claire State Office Building
Room 139
718 W Clairemont Avenue
Eau Claire, WI 54701
Monday, November 29, 2010
UW Marathon County
Room 218
518 S. 7th Avenue
Wausau, WI 54401
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 Rule and Submittal of Written Comments
The proposed rule and fiscal estimate may be reviewed and comments electronically submitted at the following Internet site: 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 Comments must be submitted by 4:00 p.m. on November 29, 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 the Department of Natural Resources
Plain language analysis
The proposed changes to Ch. NR 27, Wis. Admin. 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).
Related statute(s) or rule(s)
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.
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 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.
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 two Canadian provinces in the last three 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 border and 300 miles from the northern border. 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 was delayed until after white-nose syndrome was detected in Wisconsin.
Analysis and supporting documents used to determine effect on small business or in preparation of economic impact report:
Links to Admin. Code and Statutes in this Register are to current versions, which may not be the version that was referred to in the original published document.