No. 33753 (Emergency Rule): Rule R657-60. Aquatic Invasive Species Interdiction

DAR File No.: 33753
Filed: 06/15/2010 09:01:43 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this emergency rule is to add a reservoir to the infested waters list in Utah.

Summary of the rule or change:

This emergency rule is to add Sand Hollow Reservoir in Washington County, UT to the list of infested waters. (DAR NOTE: A corresponding proposed amendment is under DAR No. 33759 in this issue, July 1, 2010, of the Bulletin.)

Emergency rule reason and justification:

Regular rulemaking procedures would cause an imminent peril to the public health, safety, or welfare.

Justification: Quagga and Zebra mussels are invasive aquatic wildlife species from the European continent. The two species became established in the Eastern United States a decade ago by transatlantic ocean liners taking on ballast water in European ports and then discharging the water in North American ports. Since then the species have spread throughout the Mississippi River basin causing millions of dollars in damage each year to hydroelectric facilities, heavy industry, irrigation companies, and wild fisheries. The mussels attach to solid objects in the water and colonize by building layer upon layer of shells. Their prolific reproduction and colonization characteristics plug water lines in reservoirs, hydroelectric plants, industrial facilities, boat engines, irrigation systems, etc. The mussels spread from one water to another primarily by attaching to boats. Last year, lower Colorado River reservoirs, such as Lake Mead and Lake Havasu, were found infested with Quagga mussels. Many recreationists that boat in these waters also boat in Utah waters which presents an imminent threat to Utah's industrial and agricultural infrastructure that uses and transports water through pipeline. S.B. 238 was passed into law during the 2008 General Legislative Session which makes it unlawful to transport a boat from an infested water without first decontaminating it and gives the state specialized interdiction tools to prevent the spread of the mussels into Utah waters. S.B. 238 charges the Division of Wildlife Resources to promulgate administrative rules designating the waters that are considered infested for purposes of boat decontamination and to establish decontamination requirements and procedures. Without these regulatory components in rule, S.B. 238 is largely unenforceable. Given the recreational boat traffic between Lower Colorado River waters and Utah waters, the threat of Quagga mussels spreading to Utah is imminent without the rule's interdiction elements that give S.B. 238 traction to move forward and fulfill its purpose. Emergency rule making is necessary to effectively protect Utah waters from Quagga mussel infestation and the imminent peril infestation presents to public health, safety, and welfare. (DAR NOTE: S.B. 238 (2008) is found at Chapter 284, Laws of Utah 2008, and was effective 05/05/2008.)

State statutory or constitutional authorization for this rule:

• Section 23-27-401
• Section 23-14-19
• Section 23-14-18

Anticipated cost or savings to:

the state budget:

The Division of Wildlife Resources (DWR) determines that these amendments do create a cost impact to the state budget or DWR's budget. The 2008 Utah Legislative Session appropriated $2,500,000 to aid in the implementation costs associated with this rule.

local governments:

This rule does not create any direct cost or savings impact to local governments because they are not directly affected by the rule. Nor are local governments indirectly impacted because the rule does not create a situation requiring services from local governments.

small businesses:

This rule does not create any direct cost or savings impact to small businesses because they are not directly affected by the rule. Nor are small businesses indirectly impacted because the rule does not create a situation requiring services from small businesses.

persons other than small businesses, businesses, or local governmental entities:

This rule may create a cost impact to boat owners and other water enthusiasts in Utah in that if Dreissena Mussels are found in Utah the cost to decontaminate boats and other conveyances will be at the expense of the owner.

Compliance costs for affected persons:

DWR determines that this rule may create a cost impact to individuals who own water vessels and boat in infested waters, because they would be required to decontaminate the conveyance.

Comments by the department head on the fiscal impact the rule may have on businesses:

The amendments to this rule do not create an impact on businesses.

Michael R. Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Wildlife Resources
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Staci Coons at the above address, by phone at 801-538-4718, by FAX at 801-538-4709, or by Internet E-mail at [e-mail]

This rule is effective on:

06/15/2010

Authorized by:

James Karpowitz, Director

RULE TEXT

R657. Natural Resources, Wildlife Resources.

R657-60. Aquatic Invasive Species Interdiction.

R657-60-1. Purpose and Authority.

(1) The purpose of this rule is to define procedures and regulations designed to prevent and control the spread of aquatic invasive species within the State of Utah.

(2) This rule is promulgated pursuant to authority granted to the Wildlife Board in Sections 23-27-401, 23-14-18, and 23-14-19.

 

R657-60-2. Definitions.

(1) Terms used in this rule are defined in Section 23-13-2 and 23-27-101.

(2) In addition:

(a) "Conveyance" means a terrestrial or aquatic vehicle, including a vessel, or a vehicle part that may carry or contain a Dreissena mussel.

(b) "Decontaminate" means to:

(i) Self-decontaminate equipment or a conveyance that has been in an infested water in the previous 30 days by:

(A) removing all plants, fish, mussels and mud from the equipment or conveyance;

(B) draining all water from the equipment or conveyance, including water held in ballast tanks, bilges, livewells, and motors; and

(C) drying the equipment or conveyance for no less than 7 days in June, July and August;18 days in September, October, November, March, April and May; 30 days in December, January and February; or expose the equipment or conveyance to sub-freezing temperatures for 72 consecutive hours; or

(ii) Professionally decontaminate equipment or a conveyance that has been in an infested water in the previous 30 days by:

(A) Using a professional decontamination service approved by the division to apply scalding water (140 degrees Fahrenheit) to completely wash the equipment or conveyance and flush any areas where water is held, including ballast tanks, bilges, livewells, and motors.

(c) "Detects or suspects" means visually identifying:

(i) a veliger Dreissena mussel through microscopy and confirming the identity of the organism as a Dreissena mussel through two independent polymerase chain reaction (PCR) tests; or

(ii) a juvenile or adult Dreissena mussel.

(d) "Dreissena mussel" means a mussel of the genus Dreissena at any life stage, including a zebra mussel, a quagga mussel and a Conrad's false mussel.

(e) "Controlling entity" means the owner, operator, or manager of a water body, facility, or a water supply system.

(f) "Equipment" means an article, tool, implement, or device capable of carrying or containing water or Dreissena mussel.

(g) "Facility" means a structure that is located within or adjacent to a water body.

(h) "Infested water" includes all the following:

(i) [Grand Lake, Colorado;

(ii) Jumbo Reservoir, Colorado;

(iii) lower Colorado River between Lake Mead and the Gulf of California;

(iv) Lake Granby, Colorado;

(v) Lake Mead in Nevada and Arizona;

(vi) Lake Mohave in Nevada and Arizona;

(vii) Lake Havasu in California and Arizona;

(viii) Lake Pueblo in Colorado;

(ix) Lake Pleasant in Arizona;

(x) San Justo Reservoir in California;

(xi) Southern California inland waters in Orange, Riverside, San Diego, Imperial, and San Bernardino counties;

(xii) Shadow Mountain Reservoir, Colorado;

(xiii) Tarryall Reservoir, Colorado;

(xiv) Willow Creek Reservoir; Colorado;

(xv)] all coastal and inland waters [east of the100th Meridian in North America; and]in:

(A) Colorado;

(B) California;

(C) Nevada;

(D) Arizona;

(E) all states east of Montana, Wyoming, Colorado, and New Mexico;

(F) the provinces of Ontario and Quebec Canada; and

(G) Mexico;

(ii) Sand Hollow Reservoir in Washington County, Utah; and

([xvi]iii) other waters established by the Wildlife Board and published on the DWR website.

(i) "Juvenile or adult Dreissena mussel" means a macroscopic Dreissena mussel that is not a veliger.

(j) "Veliger" means a microscopic, planktonic larva of Dreissena mussel.

(k) "Vessel" means every type of watercraft used or capable of being used as a means of transportation on water.

(l) "Water body" means natural or impounded surface water, including a stream, river, spring, lake, reservoir, pond, wetland, tank, and fountain.

(m) "Water supply system" means a system that treats, conveys, or distributes water for irrigation, industrial, wastewater treatment, or culinary use, including a pump, canal, ditch or, pipeline.

(n) "Water supply system" does not included a water body.

 

R657-60-7. Wildlife Board Designations of Infested Waters.

(1) The Wildlife Board may designate a geographic area, water body, facility, or water supply system as infested with Dreissena mussels pursuant to Section 23-27-102 and 23-27-401 without taking the proposal to or receiving recommendations from the regional advisory councils.

(a) The Wildlife Board may designate a particular water body, facility, or water supply system within the state as infested with Dreissena mussels when a juvenile or adult mussel from the subject water is visually identified as a Dreissena mussel and that identity is [confimred]confirmed by two independent positive polymerase chain reaction (PCR) tests.

(b) The Wildlife Board may designate a particular water body, facility, or water supply system outside the state as infested with Dreissena mussels when a veliger, juvenile or adult Dreissena mussel is detected by the state having jurisdiction over the water or when the Wildlife Board has credible evidence suggesting the presence of a Dreissna mussel.

(c) Where the number of infested waters in a particular area is [pervasive or too] numerous [to individually list]or growing, or where surveillance activities or infestation containment actions are deficient, the Wildlife Board may designate geographic areas as infested with Dreissena mussels.

 

KEY: fish, wildlife, wildlife law

Date of Enactment or Last Substantive Amendment: June 15, 2010

Authorizing, and Implemented or Interpreted Law: 23-27-401; 23-14-18; 23-14-19

 

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