Chapter 29

29.604(6)(c) (c) Possession, sale or transportation within this state of any endangered species on the U.S. list of endangered and threatened foreign species shall not require a state permit under par. (a).

29.604(6m) (6m) Incidental takings; permits.

29.604(6m)(a) (a) In this subsection and sub. (6r), “taking” means an activity prohibited under sub. (4) (a), (b) or (c).

29.604(6m)(b) (b) The department may issue a permit, under such terms and conditions as it may prescribe, authorizing a taking that otherwise is prohibited by this section if the taking is not for the purpose of, but will be only incidental to, the carrying out of an otherwise lawful activity.

29.604(6m)(c) (c) The department may not issue a permit under this subsection unless an applicant for the permit submits to the department a conservation plan and an implementing agreement. The conservation plan shall include all of the following:

29.604(6m)(c)1. 1. A description of the impact that will likely occur as a result of the taking of an endangered species or threatened species that is specified on the department’s endangered and threatened species list.

29.604(6m)(c)2. 2. The steps that the parties specified under par. (d) will take to minimize and mitigate the impact that the endangered species or the threatened species will suffer.

29.604(6m)(c)3. 3. A description of the funding that the parties specified under par. (d) will have available to implement the steps specified under subd. 2.

29.604(6m)(c)4. 4. A description of the alternative actions to the taking that the parties in par. (d) have considered and the reasons that these alternatives will not be utilized.

29.604(6m)(c)5. 5. Any other measures that the department may determine to be necessary or appropriate.

29.604(6m)(d) (d) The implementing agreement required under par. (c) shall specifically name, and describe the obligations and responsibilities of, all the parties that will be involved in the taking as authorized by the permit.

29.604(6m)(e) (e) Upon receipt of an application for a permit and the accompanying conservation plan and implementing agreement for a proposed taking, the department shall publicize the application by announcing the application receipt and by giving a brief description of the proposed taking. The department publicity shall be distributed to the news media in the vicinity of the proposed taking and to the official state newspaper designated under s. 985.04. The department shall, by rule, establish a list of organizations, including nonprofit conservation groups, that have a professional, scientific or academic interest in endangered species or in threatened species. The department shall give notification of proposed takings under this subsection to these organizations. The department shall establish a procedure for receipt of public comment on the proposed taking.

29.604(6m)(f) (f) After having considered the public comment received on the proposed taking, the department shall issue the permit if the department finds, based on the permit application, the conservation plan and the implementing agreement, the taking will meet all of the following requirements:

29.604(6m)(f)1. 1. The taking will not be the purpose of, but will be only incidental to, the carrying out of a lawful activity.

29.604(6m)(f)2. 2. The parties specified under par. (d) will, to the maximum extent practicable, minimize and mitigate the impact caused by the taking.

29.604(6m)(f)3. 3. The parties specified under par. (d) will ensure that adequate funding for the conservation plan will be provided.

29.604(6m)(f)4. 4. The taking will not appreciably reduce the likelihood of the survival or recovery of the endangered species or threatened species within the state, the whole plant-animal community of which it is a part or the habitat that is critical to its existence.

29.604(6m)(f)5. 5. Any measures required under par. (c) 5. will be met.

29.604(6m)(g) (g) The department may require that a party specified under par. (d) make additional assurances that the requirements under par. (f) 1. to 5. will be met before issuing a permit under par. (f).

29.604(6m)(h) (h) The department shall impose on the permit any terms or conditions that the department finds necessary to ensure that the requirements under par. (f) 1. to 5. will be met. These terms or conditions may include reporting and monitoring requirements. These terms or conditions are modifiable only as provided under par. (hm).

29.604(6m)(hm) (hm) The terms or conditions of a permit shall be modified if one of the following applies:

29.604(6m)(hm)1. 1. The modification is expressly provided in the conservation plan, implementing agreement or permit.

29.604(6m)(hm)2. 2. The permittee requests the modification.

29.604(6m)(hm)3. 3. Just cause exists based upon a written finding of necessity by the secretary.

29.604(6m)(hr) (hr) A finding of necessity under par. (hm) 3. by the secretary shall be a final decision not subject to review under subch. III of ch. 227.

29.604(6m)(i) (i) The department shall revoke a permit issued under this subsection if it finds that a party specified under par. (d) fails to comply with the terms and conditions of the permit.

29.604(6m)(j) (j) A permit issued by the department is not required if a federal permit under 16 USC 1539 has been issued and if the federal fish and wildlife service consulted with the department in the process of determining whether to issue the federal permit.

29.604(6m)(k) (k) Paragraphs (b) to (j) do not apply to activities by a state agency or by the department under sub. (6r).

29.604(6r) (6r) Agency activities.

29.604(6r)(a) (a) A state agency shall notify the department at the earliest opportunity of the location, nature and extent of a proposed activity that the state agency may conduct, approve or fund and that may affect an endangered species or threatened species. The department may allow the taking of an endangered species or threatened species if all of the following apply:

29.604(6r)(a)1. 1. The activity is accomplished in accordance with interagency consultation procedures established by the department and the state agency for the purpose of minimizing any adverse effect on the endangered species or threatened species.

29.604(6r)(a)2. 2. The activity is not likely to jeopardize the continued existence and recovery of the endangered species or threatened species, or the whole plant-animal community of which it is a part, within this state and the activity is not likely to result in the destruction or adverse modification of a habitat that is critical to the continued existence of the endangered species or the threatened species within the state, as determined by the department under par. (b).

29.604(6r)(a)3. 3. The benefit to public health, safety or welfare justifies the activity.

29.604(6r)(b) (b) For purposes of par. (a) 2., the department shall determine whether a habitat is critical to the continued existence of an endangered species or threatened species by considering the endangered species’ or threatened species’ global and state element ranking as defined by the methodology used by the natural heritage inventory program.

29.604(6r)(bn) (bn) The department may allow an activity by the department itself that results in the taking of an endangered species or threatened species if the activity is accomplished with procedures established by the department for the purpose of minimizing any adverse effect on the endangered species or threatened species and if pars. (a) 2. and 3. and (b) apply.

29.604(6r)(c) (c) The department shall notify the state agency if the department determines that there is reasonable cause for the department to determine that an activity by the state agency is not being carried out in compliance with this subsection or with any environmental protection requirements developed through interagency consultation procedures. If the secretary of natural resources and the head, as defined in s. 15.01 (8), of the state agency are unable to agree upon methods or time schedules to be used to correct the alleged noncompliance, the department may bring any action or initiate any other proceedings to enforce compliance with this subsection.

29.604(6r)(d) (d) The department and the state agency shall exchange information and cooperate in the planning and implementation of any activity relating to the taking of any endangered species or threatened species in order to alleviate, to the maximum extent practicable under the circumstances, any potential adverse effect on the endangered species or the threatened species.

29.604(6r)(e) (e)

29.604(6r)(e)1. 1. Except as provided in subd. 2., cooperation between the department and the state agency under par. (d) shall include conducting reasonable surveys and reasonable biological assessments as determined by the department.

29.604(6r)(e)2. 2. Subdivision 1. does not apply if the department states in writing that it has data that is sufficient to make a determination that the proposed taking will not reduce the likelihood of the survival or recovery of the endangered species or threatened species within the state, the whole plant-animal community of which it is a part or the habitat that is critical to its existence.

29.604(6r)(em) (em)

29.604(6r)(em)1. 1. Before allowing the taking of an endangered species or threatened species under this subsection, the department shall give notice of the proposed activity to the news media throughout the state and to any person who wants to receive notification of proposed takings under this subsection and who has so informed the department in writing. The department shall transmit the notice at least 30 days before allowing the taking except as provided in subd. 2.

29.604(6r)(em)2. 2. If the department determines that it cannot comply with the 30-day time limit in subd. 1., the department shall transmit the notice as far in advance as is practicable before allowing the taking.

29.604(6r)(f) (f) In addition to any requirements under s. 1.11, the department may give public notice of and hold public hearings on the activities of state agencies or the department under this subsection.

29.604(7) (7) Conservation.

29.604(7)(a) (a) The department shall conduct research on the endangered and threatened species of this state and shall implement programs directed at conserving, protecting, restoring and propagating selected state-endangered and threatened species to the maximum extent practicable.

29.604(7)(b) (b) The department may enter into agreements with federal agencies, other states, political subdivisions of this state or private persons with respect to programs designed to conserve endangered or threatened species of wild animals or wild plants. Agreements with private persons under this paragraph may include providing for the movement of an endangered or threatened species to another appropriate habitat, preferably to a habitat located on state-owned or state-leased land.

29.604(7m) (7m) Bulk sampling activities. A person may take, transport, or possess a wild animal on the department’s endangered and threatened species list without a permit under this section if the person avoids and minimizes adverse impacts to the wild animal to the extent practicable, if the taking, transporting, or possession does not result in wounding or killing the wild animal, and if the person takes, transports, or possesses the wild animal for the purpose of bulk sampling activities under s. 295.45.

29.604(8) (8) Exemptions. This section does not apply to zoological societies or municipal zoos, or to their officers or employees.

29.604 History History: 1971 c. 275; 1975 c. 365; 1977 c. 370; 1979 c. 110, 355; 1985 a. 182; 1987 a. 183; 1989 a. 296; 1995 a. 296; 1997 a. 248 s. 508; Stats. 1997 s. 29.604; 2001 a. 16; 2013 a. 1; 2013 a. 168 s. 21.

29.604 Cross-reference Cross-reference: See also ch. NR 27 and s. NR 10.02, Wis. adm. code.

29.604 Annotation This section does not form a basis for seeking injunctive relief against the proposed relocation of a county highway. Robinson v. Kunach, 76 Wis. 2d 436, 251 N.W.2d 449 (1977).

29.604 Annotation Department of Natural Resources refusal to engage in rulemaking to add bobcats to the endangered species list was proper when the scientific evidence presented was inconclusive. Barnes v. DNR, 184 Wis. 2d 645, 560 N.W.2d 730 (1994).

29.604 Annotation Discussing the effect and constitutionality of the law broadening endangered species protection to include threatened species. 68 Atty. Gen. 9.

29.604 Annotation Sub. (4) applies to state-listed endangered and threatened plants growing on public property. OAG 3-00.

29.607 29.607 Wild rice.

29.607(1) (1) Title to wild rice.

29.607(1)(a) (a) The legal title to all wild rice growing in any lake of the state, whether meandered or not, is vested in the state for the purpose of regulating harvest, use, disposition and conservation of wild rice.

29.607(1)(b) (b) The legal title to wild rice taken or reduced to possession in violation of this chapter remains in the state. Title to wild rice lawfully acquired is subject to the condition that upon the violation of this section by the holder of title to the wild rice, the title shall revert, as a result of the violation, to the state.

29.607(2) (2) Powers of the department.

29.607(2)(a) (a) The secretary may designate the opening date for harvesting wild rice in any navigable lake or stream by posting notice of the opening date on the shores of and at places of public access to the lake at least 24 hours before the opening date, unless the department promulgates by rule a different time period required for notice. Posting is sufficient notice of the opening date and no other publication is required.

29.607(2)(b) (b) The department shall obtain the advice and recommendations of the tribal council before promulgating any rules governing the harvest, use and disposition of wild rice growing within the bounds of an Indian reservation.

29.607(3) (3) License required; exceptions; wild rice identification card. Every person over the age of 16 and under the age of 65 shall obtain the appropriate wild rice license to harvest or deal in wild rice but no license to harvest is required of the members of the immediate family of a licensee or of a recipient of old-age assistance or members of their immediate families. The department, subject to s. 29.024 (2g) and (2r), shall issue a wild rice identification card to each member of a licensee’s immediate family, to a recipient of old-age assistance and to each member of the recipient’s family. The term “immediate family” includes husband and wife and minor children having their abode and domicile with the parent or legal guardian.

29.607(4) (4) Licenses.

29.607(4)(a) (a) Wild rice harvest license. No wild rice harvest license is required of helpers of a licensee who participate only in shore operations. Wild rice harvest licenses may be issued only to residents.

29.607(4)(b) (b) Wild rice dealer license. A wild rice dealer license is required to buy wild rice within the state for resale to anyone except consumers, or to sell wild rice imported from outside of the state to anyone within the state except consumers, or to process wild rice not harvested by the processor himself or herself for resale by the processor to any other person. The license is required to be a class D wild rice dealer license if the amount of wild rice bought, sold or processed by the licensee within the year covered by the license exceeds 50,000 pounds. The license is required to be a class C wild rice dealer license if this amount exceeds 25,000 pounds but does not exceed 50,000 pounds. The license is required to be a class B wild rice dealer license if this amount exceeds 5,000 pounds but does not exceed 25,000 pounds. The license is required to be a class A wild rice dealer license if this amount does not exceed 5,000 pounds. For the purposes of this section, 2.5 pounds of raw rice is equivalent to one pound of processed rice.

29.607(5) (5) Records and reports. Each wild rice dealer shall keep a record in the form required by the department of all wild rice bought, sold or processed by the dealer during the period covered by the dealer’s license showing the date of each transaction, the names and addresses of all other parties to the transaction, and the amount of wild rice involved, whether raw or processed. The record shall be open for inspection by the department at all reasonable times. All licensed wild rice dealers shall file reports on their operations as wild rice dealers as required by the department.

29.607(6) (6) Private waters.

29.607(6)(a) (a) Nothing in this section shall be construed as giving this state or the department the right to control, regulate, manage or harvest wild rice growing on privately owned beds of flowages or ponds.

29.607(6)(b) (b) No person may use or cause to be used any mechanical device of any nature in the harvesting or gathering of wild rice.

29.607(7) (7) Penalties. Any person violating this section shall be punished pursuant to s. 29.971 (2) and (12).

29.607 History History: 1975 c. 365 s. 62; 1979 c. 110; 1979 c. 190 s. 4; 1981 c. 243 s. 7; 1983 a. 27; 1985 a. 332 s. 251 (3); 1987 a. 27; 1991 a. 316; 1995 a. 27; 1997 a. 191, 237; 1997 a. 248 s. 594; Stats. 1997 s. 29.607; 1999 a. 32.

29.607 Cross-reference Cross-reference: See also ss. NR 19.001 and NR 19.09, Wis. adm. code.

29.611 29.611 Wild ginseng.

29.611(1) (1) Definitions. In this section:

29.611(1)(a) (a) “Dealer” means a person who purchases for purposes of resale at least 8 ounces of wild ginseng in a license year.

29.611(1)(am) (am) “License year” means the period beginning on July 1 of a given year and ending on the following June 30.

29.611(1)(b) (b) “Wild ginseng” means an unprocessed plant, dry root or live root of the species Panax quinquefolius that is not grown or nurtured by a person.

29.611(2) (2) Cutting. No person may, between November 1 and the following September 1, cut, root up, gather or destroy wild ginseng.

29.611(3) (3) Evidence. The purchase or sale of wild green ginseng between November 1 and the following September 1 is prima facie evidence of a violation of this section.

29.611(4) (4) Purchase with knowledge. No person may purchase wild ginseng if the person knows the ginseng was cut, rooted up or gathered between November 1 and the following September 1. No dealer may purchase wild ginseng if any of the following applies:

29.611(4)(a) (a) The dealer fails to inspect the vendor’s wild ginseng harvest license or wild ginseng dealer license.

29.611(4)(b) (b) The dealer knows that the vendor has violated this section.

29.611(5) (5) Evidence. In any prosecution under this section proof that any wild ginseng which was purchased had been illegally obtained by the vendor is prima facie evidence of a violation of this section by the purchaser.

29.611(6) (6) Wild ginseng harvest license.

29.611(6)(a) (a) Requirement. No person may cut, root up, gather or destroy wild ginseng unless the person has a valid wild ginseng harvest license issued by the department. The department shall promulgate rules for issuing wild ginseng harvest licenses. The department may promulgate rules on the quantity of wild ginseng that each person may harvest and restrictions on areas where wild ginseng may be harvested and on the methods which may be used to harvest wild ginseng.

29.611(6)(b) (b) Exception. Paragraph (a) does not apply to a person who cuts, roots up, gathers or destroys wild ginseng growing on the person’s own land if the ginseng is not sold.

29.611(7) (7) Wild ginseng dealer licenses.

29.611(7)(a) (a) License required. No resident may act as a dealer in this state unless he or she has one of the following valid wild ginseng dealer licenses issued by the department: