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 were delayed until after white-nose syndrome was detected in Wisconsin.

None.

Affected constituencies include commercial caves and mines, private cave and mine owners, recreational cavers, wildlife rehabilitators, animal control operators, the agricultural industry, the conservation community, wind utilities, WI Department of Transportation (WDOT) and homeowners. Concerns will likely include how listing the bats will affect current activities. Many of these potential concerns will be addressed through a broad incidental take permit/authorization and voluntary agreements so that the listing does not have a significant economic impact on a substantial number of small businesses.

A broad incidental take permit/authorization would be created, as provided for under s. 29.604, Wis. Stats. The broad incidental take permit/authorization would allow for the incidental taking of state listed cave bats that may occur as a result of specific public health concerns, bat removals, building demolitions, forestry activities, bridge demolitions, miscellaneous building repairs and wind energy development projects (see the “Broad Incidental Take Permit/Authorization for Cave Bats" attachment for more information). Some take of bats may still occur as a result of these activities, however take will be minimized by following specific minimization measures and the department has concluded that the projects covered under this permit are not likely to jeopardize the continued existence and recovery of the state population of these bats or the whole plant-animal community of which they are a part; and has benefit to the public health, safety or welfare that justifies the action. This incidental take permit/authorization is only needed when a bat is present or suspected to be present (e.g., Natural Heritage Inventory report of bats in the area, evidence of bat presence).

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.

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.

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.

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.

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.

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.

Indeterminate. Increase costs — May be possible to absorb within agency's budget.

Indeterminate. Increase costs — Permissive.

Towns, Villages, Cities, Counties.

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.

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.

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.

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.

Sections 23.09 (2), 23.22, 227.11 (2) and 227.24, Stats.

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 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.

We are not aware of any existing or proposed federal regulations that would list the fungus, Geomyces destructans, as an invasive species.