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Please see http://docs.legis.wisconsin.gov for the production version.
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 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 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 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(s) or rule(s)
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 rule(s) 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.
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 and 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 or in preparation of economic impact report
None.
Small Business Impact
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.
Under s. 227.19 (3m), Wis. Stats., a final regulatory flexibility analysis is not required.
Pursuant to s. 227.114, Stats., it is not anticipated that the proposed rule will have a significant economic impact on small businesses. The department's Small Business Regulatory Coordinator may be contacted at SmallBusiness@dnr.state.wi.us 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.
Agency Contact
Erin Crain, EIM Section Chief
P.O. Box 7921
101 South Webster Street, ER/6
Madison, WI 53707-7921
Phone: (608) 267-7979
Notice of Hearing
Natural Resources
Air Pollution Control, Chs. NR 400—
DNR# AM-34-05
NOTICE IS HEREBY GIVEN that pursuant to ss. 227.16 and 227.17, Stats, the Department of Natural Resources, hereinafter the Department, will hold a public hearing on proposed amendments to Chapters NR 400, 410, 411, and 484, relating to the indirect source air management permit program on the date and at the time and location listed below.
Hearing Information
The Department of Natural Resources will hold a public hearing at the time and place shown below:
Thursday November 18, 2010
at 1:00 PM
Natural Resources State Office Building
Room 713
101 S. Webster Street
Madison, WI 53703
Live interactive satellite connections to this hearing will also be provided in the following locations:
DNR Southeast Region Headquarters
Rooms 140-141
2300 North Dr. Martin Luther King Jr. Drive
Milwaukee, WI 53212
DNR Northeast Region Headquarters
Lake Michigan Room
2984 Shawano Avenue
Green Bay, WI 54313
DNR West Central Region Headquarters
Paddlefish Conference Room
1300 W Clairemont Avenue
Eau Claire, WI 54701
Reasonable accommodations, including the provision of informational material in an alternative format, will be provided for qualified individuals with disabilities upon request. Contact Robert B. Eckdale in writing at the Department of Natural Resources, Bureau of Air Management (AM/7), 101 S Webster, Madison, WI 53707; by E-mail to Robert.Eckdale@wisconsin.gov ; or by calling (608) 266-2856. A request must include specific information and be received at least 10 days before the date of the scheduled hearing.
Availability of the proposed rules and fiscal estimate
The proposed rule and supporting documents, including the fiscal estimate, may be viewed and downloaded from the Administrative Rules System Web site which can be accessed through the link provided on the Proposed Air Pollution Control Rules Calendar at http://www.dnr.state.wi.us/air/rules/calendar.htm . If you do not have Internet access, a printed copy of the proposed rule and supporting documents, including the fiscal estimate, may be obtained free of charge by contacting Robert Eckdale, Department of Natural Resources, Bureau of Air Management (AM/7), 101 S. Webster St, Madison, WI, 53703, or by calling 608.266.2856.
Submittal of Written Comments
Comments on the proposed rule must be received on or before November 29, 2010. Written comments may be submitted by U.S. mail, fax, E-mail, or through the Internet and will have the same weight and effect as oral statements presented at the public hearing. Written comments and any questions on the proposed rules should be submitted to:
Mike Friedlander
Department of Natural Resources
Bureau of Air Management (AM/7)
101 S Webster St, Madison, WI 53703
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