Chapter NR 40

NR 40.02(4) (4) “Aquatic plant” means a submergent, emergent, free-floating or floating-leaf plant and includes any part of the plant.

NR 40.02(5) (5) “Attached” means in, on, or physically connected to in any way.

NR 40.02(6) (6) “Boat” means any device capable of being used as a means of transportation on water.

NR 40.02(7) (7) “Category” means a grouping of species designated by administrative rule for which there are specific legal requirements or restrictions.

NR 40.02(7g) (7g) “Cave” means any naturally occurring void, cavity, recess or system of interconnected passageways beneath the surface of the earth or in a bluff, cliff or ledge, including pits and sinkholes, but does not include a rock shelter.

NR 40.02(7r) (7r) “Commercial cave or mine” means a cave or mine that has more than 1,000 visitors per year and charges a fee.

NR 40.02(8) (8) “Contain” or “containment” means to prevent spread beyond a designated boundary.

NR 40.02(9) (9) “Control” has the meaning given it in s. 23.22 (1) (a), Stats. In addition, “control” includes activities to eliminate or reduce the adverse effects of invasive species including decreasing or eradicating their population or limiting their introduction or spread, and includes destroying the aboveground, and when necessary, the belowground portions of a plant in a manner and at the proper time to prevent the development and distribution of viable seeds or other propagules. For plants that reproduce vegetatively, “control” includes the use of methods that contain or reduce the vegetative spread of the plant.

NR 40.02 Note Note: Section 23.22 (1) (a), Stats., states that “control” means to cut, remove, destroy, suppress, or prevent the introduction or spread of.

NR 40.02(9m) (9m) “Crayfish” means any decapod crustacean from the following families: Astacidae, Cambaridae and Parastacidae.

NR 40.02(10) (10) “Cultivate” means, for plants, intentionally maintaining an individual or population of a plant.

NR 40.02(11) (11) “Cyanobacteria” means a predominately photosynthetic prokaryotic organism occurring singly or in colonies.

NR 40.02(12) (12) “DATCP” means the Wisconsin department of agriculture, trade and consumer protection.

NR 40.02(13) (13) “Department” means the Wisconsin department of natural resources.

NR 40.02(14) (14) “Disposal” means the lawful discharge, deposit, dumping or placing of any invasive species into or on any land or water in a manner that prevents the establishment, introduction or spread of the disposed species, or the consumption of the species as food.

NR 40.02(15) (15) “Eradicate” means to remove an entire population of an invasive species and all its propagules from an area of infestation.

NR 40.02(16) (16) “Established” means, for algae and cyanobacteria, plants, terrestrial invertebrates and plant disease-causing microorganisms, aquatic invertebrates except crayfish, and terrestrial and aquatic vertebrates except fish, present in an area as a self-sustaining population that is dispersed to the extent that eradication is either infeasible or will take a significant effort over a period of several years.

NR 40.02(17) (17) “Established nonnative fish species and established nonnative crayfish species” means alewife (Alosa pseudoharengus), common carp (Cyprinus carpio), eastern mosquitofish (Gambusia holbrooki), rainbow smelt (Osmerus mordax), round goby (Neogobius melanostomus), ruffe (Gymnocephalus cernuus), sea lamprey (Petromyzon marinus), three-spine stickleback (Gasterosteus aculeatus), tubenose goby (Proterorhinus marmoratus), white perch (Morone americana), and rusty crayfish (Orconectes rusticus), and western mosquitofish (Gambusia affinis).

NR 40.02(18) (18) “Feral” means existing in an untamed or wild, unconfined state, having returned to such a state from domestication.

NR 40.02(19) (19) “Genetically modified” refers to an organism whose genome, chromosomal or extrachromosomal, is modified permanently and heritably, using recombinant nucleic acid techniques, and includes the progeny of any genetically modified organism.

NR 40.02(20) (20) “Identified carrier of an invasive species” means any material identified in a department infestation control designation under s. 26.30 (7), Stats., a DATCP quarantine under s. 94.01, Stats., or a United States Department of Agriculture Animal and Plant Health Inspection Service quarantine declaration under 7 USC section 7714 or 7715 as potentially carrying an invasive species.

NR 40.02(21) (21) “Import” means to bring into Wisconsin or to arrange for another person to bring into Wisconsin.

NR 40.02(22) (22) “Incidental” means something is done inadvertently when performing an otherwise legal activity.

NR 40.02(23) (23) “Introduce” means to stock, plant, release or otherwise put an invasive species into the outdoor environment or use an invasive species in this state anywhere except within an indoor facility which is designed to physically contain the organism, including but not limited to a laboratory, greenhouse, growth chamber or fermenter.

NR 40.02(24) (24) “Invasive species” has the meaning given it in s. 23.22 (1) (c), Stats. In addition, “invasive species” means nonnative species including hybrids, cultivars, subspecific taxa, and genetically modified variants whose introduction causes or is likely to cause economic or environmental harm or harm to human health, and includes individual specimens, eggs, larvae, seeds, propagules, and any other viable life-stages of such species. For fish, “invasive species” includes all nonnative species.

NR 40.02 Note Note: Section 23.22 (1) (c), Stats., states that “invasive species” means nonindigenous species whose introduction causes or is likely to cause economic or environmental harm or harm to human health. The department does not consider dead specimens or organisms that are dead, not revivable, and no longer capable of living, growing, developing, reproducing, and functioning as “invasive species”.

NR 40.02(25) (25) “Management action” means limiting the spread of established populations or abating harmful ecological, economic, social and public health impacts associated with invasive species introductions.

NR 40.02(25m) (25m) “Mine” means any artificial excavation, shaft, underground passageway, slope, tunnel or working from which ore or mineral is or was extracted, but does not include an open pit mine. However, caves or mines may be located adjacent to open pit mines.

NR 40.02(26) (26) “Native duckweed” means any of the following: Lemna aequinoctialis (lesser duckweed, three-nerved duckweed), Lemna minor (common duckweed), Lemna obscura (little duckweed, purple duckweed), Lemna perpusilla (least duckweed, minute duckweed), Lemna trisulca (forked duckweed, star duckweed), Lemna turionifera (perennial duckweed, turion duckweed), Spirodela polyrrhiza (giant duckweed), Wolffia borealis (northern watermeal), Wolffia brasiliensis (Brazilian watermeal), and Wolffia columbiana (Columbian watermeal).

NR 40.02(27) (27) “Native species” means a species indigenous to Wisconsin, and includes an individual specimen. For fish, “native species” means those fish species identified as native fish species in Wisconsin Fishes 2000: Status and Distribution, by Lyons, J., P. A. Cochran, and D. Fago, published by University of Wisconsin Sea Grant Institute, and includes an individual specimen, regardless of the specimen’s origin.

NR 40.02(28) (28) “Natural areas” means undeveloped or wild lands and those lands preserved or restored and managed for their natural features, including but not limited to parks, forests, refuges, grasslands, wetlands and shorelines on public and private lands.

NR 40.02(29) (29) “Nonnative” or “nonnative species” means a species not indigenous to Wisconsin, and includes an individual specimen.

NR 40.02(30) (30) “Nonnative fish species in the aquaculture industry” means arctic char (Salvelinus alpinus), Atlantic salmon (Salmo salar), brown trout (Salmo trutta), chinook salmon (Oncorhynchus tshawytscha), coho salmon (Oncorhynchus kisutch), rainbow trout (Oncorhynchus mykiss), pink salmon (Oncorhynchus gorbuscha), redear sunfish (Lepomis microlophus), tiger trout (a hybrid of Salvelinus fontinalis and Salmo trutta) and tilapia (Tilapia spp).

NR 40.02(31) (31) “Nonnative viable fish species in the aquarium trade” means goldfish (Carassius auratus), koi carp (Cyprinus carpio), sterlet (Acipenser ruthenus), Chinese hi-fin banded shark (Myxocyprinus asiaticus), bitterling (Rhodeus spp.), ide (Leuciscus idus) and weather loach (Misgurnus anguillicaudatus).

NR 40.02(32) (32) “Non-reproductive” means, for plants, not capable of reproduction sexually or asexually.

NR 40.02(33) (33) “Nonviable” means, with respect to aquatic vertebrates including fish species, species for which eggs, fry, or adults are not capable of surviving water temperature below 38 degrees Fahrenheit or not capable of surviving in fresh water. “Nonviable” means, with respect to terrestrial vertebrates, species that are not capable of living, growing, developing, and functioning successfully in Wisconsin’s outdoor environment.

NR 40.02(34) (34) “Open pond” means an outdoor pond that is not entirely covered to prevent the escape of fish.

NR 40.02(35) (35) “Order” means an element of the Linnean taxonomic classification system, unless the context indicates otherwise.

NR 40.02(36) (36) “Person” means an individual, partnership, corporation, society, association, firm, unit of government, public agency or public institution, and includes an agent of one of these entities.

NR 40.02(37) (37) “Pet” means an animal raised or kept for companionship and generally kept indoors, in an enclosure or otherwise confined or restrained, and not allowed to roam freely out-of-doors. “Pet” does not include fish and crayfish, or other aquatic invertebrates.

NR 40.02(38) (38) “Plant” means, as a verb, to place entire live plants, plant parts or seeds into the water, the ground or a planter out of doors for the purpose of growing them. “Plant”, as a noun, means any member of the Kingdom Plantae, lichens, algae and cyanobacteria, and any varieties, cultivars, hybrids or genetically modified variants thereof, and includes any plant parts capable of vegetative or sexual reproduction.

NR 40.02(39) (39) “Plant taxa” mean taxonomic categories or units of plant classification, such as family, genus, species, variety and cultivar.

NR 40.02(40) (40) “Possess” means to own, maintain control over, restrain, hold, grow, raise or keep.

NR 40.02(41) (41) “Prohibited invasive species” or “prohibited species” means an invasive species that the department, at the time of listing under s. NR 40.04 (2), has determined is likely to survive and spread if introduced into the state, potentially causing economic or environmental harm or harm to human health, but which is not found in the state or in that region of the state where the species is listed as prohibited in s. NR 40.04 (2), with the exception of isolated individuals, small populations or small pioneer stands of terrestrial species, or in the case of aquatic species, that are isolated to a specific watershed in the state or the Great Lakes, and for which statewide or regional eradication or containment may be feasible.

NR 40.02(42) (42) “Propagules” means specimens or parts of a species that are capable of producing additional specimens through either sexual or asexual reproduction, including but not limited to seeds, roots, stems, rhizomes, tubers and spores.

NR 40.02(43) (43) “Public highway” means every public street, alley, road, highway or thoroughfare of any kind, except waterways, in this state while open to public travel and use, but does not include public boat access sites and associated parking areas.

NR 40.02(44) (44) “Reasonable precautions” means intentional actions that prevent or minimize the transport, introduction, possession or transfer of invasive species. Reasonable precautions include but are not limited to best management practices (BMPs) for invasive species approved by the department, practices recommended by the “Wisconsin Clean Boats, Clean Waters” program and “Stop Aquatic Hitchhikers” campaign, and compliance with DATCP quarantine regulations imposed under s. 94.01, Stats., or a United States Department of Agriculture Animal and Plant Health Inspection Service quarantine declared under 7 USC section 7714 or 7715. For the transfer of aquatic plants, reasonable precautions include verifying that the species transferred is identified correctly and is not listed in s. NR 40.04 or 40.05 as prohibited or restricted, and that there are no other listed invasive species comingled with the species being transferred.

NR 40.02(45) (45) “Recombinant nucleic acid techniques” means laboratory techniques through which genetic material is isolated and manipulated in vitro and then inserted into an organism, resulting in a transgenic organism.

NR 40.02(46) (46) “Restricted invasive species” or “restricted species” means an invasive species that the department, at the time of listing under s. NR 40.05 (2), has determined is already established in the state or in that region of the state where the species is listed as restricted in s. NR 40.05 (2) and that causes or has the potential to cause economic or environmental harm or harm to human health, and for which statewide or regional eradication or containment may not be feasible.

NR 40.02(46m) (46m) “Rock shelter” means an overhang or cave-like opening in a bluff, cliff or ledge that is shallow and does not provide an area of substantial daytime darkness.

NR 40.02(47) (47) “Safe facility” means, for fish, an aquarium or container that does not directly drain into a water of the state, is not subject to intermittent or periodic flooding, is not connected to any water of the state, and is not an open pond. For crayfish and other aquatic invertebrates, “safe facility” means an aquarium or container that prevents the escape of the aquatic invertebrates and that does not directly drain into a water of the state.

NR 40.02(48) (48) “Species” means monera, protista, fungi, plantae, animalia, viruses, phytoplasmas, mycoplasma-like organisms and prions and includes seeds, propagules and individual living specimens, eggs, larvae, and any other viable life-stages of such species. “Species” includes genetically modified species, cultivars, hybrids and sub-specific taxa.

NR 40.02(49) (49) “Transfer” means to buy, sell, trade, barter, exchange, give or receive or to offer to buy, sell, trade, barter, exchange, give or receive.

NR 40.02(50) (50) “Transport” means to cause, or attempt to cause, an invasive species to be imported or carried or moved within the state, and includes accepting or receiving a specimen for the purpose of transportation or shipment.

NR 40.02(51) (51) “Unknowing” means unaware of the presence of a prohibited or restricted invasive species.

NR 40.02(52) (52) “Waters of the state” has the meaning given it in s. 281.01 (18), Stats.

NR 40.02 Note Note: Section 281.01 (18), Stats., provides as follows: “Waters of the state” includes those portions of Lake Michigan and Lake Superior within the boundaries of this state, and all lakes, bays, rivers, streams, springs, ponds, wells, impounding reservoirs, marshes, watercourses, drainage systems and other surface water or groundwater, natural or artificial, public or private, within this state or its jurisdiction.

NR 40.02(53) (53) “Wild animal” means any mammal, bird, or other creature of a wild nature endowed with sensation and the power of voluntary motion, except fish and crayfish and other aquatic invertebrates.

NR 40.02 History History: CR 08-074: cr. Register August 2009 No. 644, eff. 9-1-09; CR 10-016: cr. (3m), am. (16), (42) and (53) Register August 2010 No. 656, eff. 9-1-10; EmR1039: emerg. cr. (7g), (7r), (25m), (46m), eff. 11-3-10; CR 10-123: cr. (7g), (7r), (25m), (46m) Register May 2011 No. 665, eff. 6-1-11; CR 14-034: cr. (9m), am. (14), (17), (37), (53) Register April 2015 No. 712, eff. 5-1-15.

NR 40.03 NR 40.03 Classifications.

NR 40.03(1) (1) Classification categories. For purposes of this chapter, invasive species are classified into the following categories: prohibited and restricted.

NR 40.03 Note Note: For informational and educational purposes, the department informally maintains and updates as needed a caution list of invasive species and a list of non-restricted invasive species. Caution list invasive species are either not found in the state, or if they are, the extent of their presence or impact is not sufficiently documented. Caution list species may have shown evidence of invasiveness in similar environments in other states and could potentially spread in Wisconsin. Unlike the prohibited and restricted categories, caution list category invasive species are not regulated under this chapter. Additional information is needed to determine if caution list species belong in another category. Non-restricted invasive species may have adverse environmental, recreational or economic impacts or cause harm to human health. Most of the non-restricted species are already integrated into Wisconsin’s ecosystems, and state-wide control or eradication is not practical or feasible. Non-restricted category invasive species are not regulated under this chapter. All other non-native species recommended for listing as invasive but not yet assessed for this rule are put on an informal pending list. Future rule revisions will involve assessing some species from this list.

NR 40.03(2) (2) Criteria. The department shall consider the following criteria in classifying a nonnative species as an invasive species for the purpose of this chapter:

NR 40.03(2)(a) (a) The species’ potential to directly or indirectly cause economic or environmental harm or harm to human health, including harm to native species, biodiversity, natural scenic beauty and natural ecosystem structure, function or sustainability; harm to the long-term genetic integrity of native species; harm to recreational, commercial, industrial and other uses of natural resources in the state; and harm to the safety or well being of humans, including vulnerable or sensitive individuals.

NR 40.03(2)(b) (b) The extent to which the species is already present in the state, or in portions of the state, including whether there are isolated pioneer stands.

NR 40.03(2)(c) (c) The likelihood that the species, upon introduction, will become established and spread within the state.

NR 40.03(2)(d) (d) The potential for eradicating the species or controlling the species’ spread within the state, including the technological and economic feasibility of eradication or control.

NR 40.03(2)(e) (e) The socio-economic value afforded by the species, including any beneficial uses or values the species may provide for recreation, commerce, agriculture or industry within the state.

NR 40.03 History History: CR 08-074: cr. Register August 2009 No. 644, eff. 9-1-09.

NR 40.04 NR 40.04 Prohibited category.

NR 40.04(1) (1) Prohibited invasive species. Prohibited invasive species are identified in this section by scientific and common names and by specific categories of species.

NR 40.04(2) (2) Identification of prohibited species.

NR 40.04(2)(a) (a) Algae and cyanobacteria. The following algae and cyanobacteria invasive species are prohibited:

NR 40.04(2)(a)1g. 1g. Caulerpa taxifolia (Killer algae)

NR 40.04(2)(a)1r. 1r. Cylindrospermopsis raciborskii (Cylindro)

NR 40.04(2)(a)2. 2. Didymosphenia geminata (Didymo or rock snot), except in Lake Superior

NR 40.04(2)(a)3. 3. Nitellopsis obtusa (Starry stonewort)

NR 40.04(2)(a)4. 4. Novel cyanobacterial epiphyte of the order Stigonematales linked with avian vacuolar myelinopathy

NR 40.04(2)(a)5. 5. Prymnesium parvum (Golden alga)

NR 40.04(2)(a)6. 6. Ulva species, including species previously known as Enteromorpha species

NR 40.04(2)(b) (b) Plants. The following plant invasive species are prohibited statewide except in the counties listed where they are restricted under s. NR 40.05 (2) (b):

NR 40.04(2)(b)1e. 1e. Achyranthes japonica (Japanese chaff flower)

NR 40.04(2)(b)1m. 1m. Akebia quinata (Fiveleaf akebia or chocolate vine)

NR 40.04(2)(b)1s. 1s. Ampelopsis brevipedunculata (Porcelain berry) including the variegated cultivar

NR 40.04(2)(b)2. 2. Anthriscus sylvestris (Wild chervil) except in Adams, Barron, Chippewa, Crawford, Columbia, Dane, Dodge, Dunn, Fond du Lac, Grant, Green, Green Lake, Iowa, Jefferson, Juneau, Kenosha, La Crosse, Lafayette, Marquette, Milwaukee, Monroe, Ozaukee, Polk, Racine, Richland, Rock, Sauk, Sheboygan, Taylor, Vernon, Walworth, Waukesha, and Washington counties

NR 40.04(2)(b)2e. 2e. Arundo donax (Giant reed)

NR 40.04(2)(b)2m. 2m. Azolla pinnata (Mosquito fern)

NR 40.04(2)(b)2s. 2s. Berberis vulgaris (Common barberry)

NR 40.04(2)(b)3. 3. Bunias orientalis (Hill mustard) except in Dane, Grant, Green, Iowa, Lafayette, and Rock counties