DAR File No. 38236

Natural Resources, Wildlife Resources

Rule R657-60

Aquatic Invasive Species Interdiction

Notice of Proposed Rule

(Amendment)

DAR File No.: 38236
Filed: 01/14/2014 07:08:07 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule is purposed to define procedures and regulations designed to prevent and control the spread of aquatic invasive species within the State of Utah.

Summary of the rule or change:

The Western Regional Panel (WRP) of the Aquatic Nuisance Species Task Force (ANSTF) recently completed work to achieve consensus among western states' aquatic invasive species programs. Among the first of the tasks was to arrive at common definitions for classification and declassification of aquatic invasive species affected waters. As such, changes to Rule R657-60 are needed to achieve commonality among western states regarding the aforementioned task. The WRP proposes another level of administrative classification to facilitate commonality among western states and to create a workable declassification system. The Division proposes that this three tiered classification system be adopted and incorporated into its Aquatic Invasive Species Interdiction Rule, R657-60. The classifications that require administrative action are proposed as follows: "suspected", "detected", and "infested". The Division recommends these changes to Rule R657-60, as they will significantly aid in the management of Dreissena mussels on infested water bodies. Furthermore it will aid in the communication with western states and further the work of the WRP to try to reach program reciprocity among states.

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 not create a cost impact to the state budget or DWR's budget. However, 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 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 but will not have an impact on 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 stacicoons@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/03/2014

This rule may become effective on:

03/10/2014

Authorized by:

Gregory Sheehan, Director

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]Detected Water" or [suspects]"Detected" means [visually identifying:

(i) a veliger]a water body, facility, or water supply system where the presence of a Dreissena mussel [through]is indicated in two consecutive sampling events using visual identification or microscopy and [confirming the identity of the organism as a Dreissena mussel through two independent]the results of each sampling event is confirmed in two polymerase chain reaction [(PCR) tests; or]tests, each conducted at independent laboratories.

[(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:]Water" or "Infested" means a water body, facility, water supply system, or geographic region where the presence of multiple age classes of attached Dreissena mussels is indicated in two or more consecutive sampling events using visual detection or microscopy and the result of each sampling event is confirmed in two polymerase chain reaction tests, each conducted at independent laboratories.

[(i) all coastal and inland waters 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;

(iii) Lake Powell and that portion of the:

(A) Colorado River between Lake Powell and Spanish Bottom in Canyonlands National Park;

(B) Escalante River between Lake Powell and the Coyote Creek confluence;

(C) Dirty Devil River between Lake Powell and the Highway 95 bridge; and

(D) San Juan River between Lake Powell and Clay Hills Crossing.

(iv) 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) "Suspected Water" or "Suspected" means a water body, facility, or water supply system where the presence of a Dreissena mussel is indicated through a single sampling event using visual identification or microscopy and the result of that sampling event is confirmed in two independent polymerase chain reaction tests, each conducted at independent laboratories.

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

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

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

([m]n) "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]o) "Water supply system" does not [included]include a water body.

 

R657-60-3. Possession of Dreissena Mussels.

(1) Except as provided in Subsections R657-60-3(2) and R657-60-5(2), a person may not possess, import, ship, or transport any Dreissena mussel.

(2) Dreissena mussels may be imported into and possessed within the state of Utah with prior written approval of the Director of the Division of Wildlife Resources or a designee.

 

R657-60-4. Reporting of Invasive Species Required.

(1) A person who discovers a Dreissena mussel within this state or has reason to believe a Dreissena mussel may exist at a specific location shall immediately report the discovery to the division.

(2) The report shall include the following information:

(a) location of the [Driessena]Dreissena mussels;

(b) date of discovery;

(c) identification of any conveyance or equipment in which mussels may be held or attached; and

(d) identification of the reporting party with their contact information.

(3) The report shall be made in person or in writing:

[(a)](a) at any division regional or headquarters office or;

[(b)](b) to the division's toll free hotline at 1-800-662-3337; or

[(c)](c) on the division's website at www.wildlife.utah.gov/law/hsp/pf.php.

 

R657-60-5. Transportation of Equipment and Conveyances That Have Been in[ Infested] Waters Containing Dreissena Mussels.

(1) The owner, operator, or possessor of any equipment or conveyance that has been in an infested water or in any other water subject to a closure order under R657-60-8 or control plan under R657-60-9 that requires decontamination of conveyances and equipment upon leaving the water shall:

(a) immediately drain all water from the equipment or conveyance at the take out site, including water held in ballast tanks, bilges, livewells, motors, and other areas of containment; and

(b) immediately inspect the interior and exterior of the equipment or conveyance at the take out site for the presence of Dreissena mussels.

(2) If all water in the equipment or conveyance is drained and the inspection undertaken pursuant to Subsection (1)(b) reveals the equipment and conveyance are free from mussels or shelled organisms, fish, plants and mud, the equipment and conveyance may be transported in or through the state directly from the take out site to the location where it will be:

(a)(i) professionally decontaminated; or

(ii) stored and self-decontaminated; or

(b) temporarily stored and subsequently returned to the same water body and take out site as provided in Subsection (5).

(3) If all the water in the equipment or conveyance is not drained or the inspection undertaken pursuant to Subsection (1)(b) reveals the equipment or conveyance has attached mussels or shelled organisms, fish, plants, or mud, the equipment and conveyance shall not be moved from the take out site until the division is contacted and written or electronic authorization received to move the equipment or conveyance to a designated location for professional decontamination.

(4) Except as provided in Subsection (5), a person shall not place any equipment or conveyance into a water body or water supply system in the state without first decontaminating the equipment and conveyance when the equipment or conveyance in the previous 30 days has been in:

(a) an infested water; or

(b) other water body or water supply system subject to a closure order under R657-60-8 or control plan under R657-60-9 that requires decontamination of conveyances and equipment upon leaving the water.

(5) Decontamination is not required when a conveyance or equipment is removed from an infested water or other water body subject to decontamination requirements, provided the conveyance and equipment is[;]:

(a) inspected and drained at the take out site, and is free from attached mussels, shelled organisms, fish, plants, and mud as required in Subsections (1) and (2);

(b) returned to the same water body and launched at the same take out site; and

(c) not placed in or on any other Utah water body in the interim without first being decontaminated.

 

R657-60-6. Certification of Decontamination.

(1) The owner, operator or possessor of a vessel desiring to launch on a water body in Utah must:

(a) verify the vessel and any launching device, in the previous 30 days, have not been in an infested water or in any other water subject to closure order under R657-60-8 or control plan under R656-60-9 that requires decontamination of conveyances and equipment upon leaving the water; or

(b) certify the vessel and launching device have been decontaminated.

(2) Certification of decontamination is satisfied by:

(a) previously completing self-decontamination since the vessel and launching device were last in a water described in Subsection (1)(a) and completely filling out and dating a decontamination certification form which can be obtained from the division; or

(b) providing a signed and dated certificate by a division approved professional decontamination service verifying the vessel and launching device were professionally decontaminated since the vessel and launching device were last in a water described in Subsection (1)(a).

(3) Both the decontamination certification form and the professional decontamination certificate, where applicable, must be signed and placed in open view in the window of the launching vehicle prior to launching or placing the vessel in a body of water.

(4) It is unlawful under Section 76-8-504 to knowing falsify a decontamination certification form.

 

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]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]2) The Wildlife Board may designate a particular water body, facility, or water supply system within the state as [infested]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 confirmed by two independent positive polymerase chain reaction (PCR) tests]sampling indicates the water body, facility, or water supply system meets the minimum criteria for an Infested Water as defined in this rule.

([b]3) The Wildlife Board may designate a particular water body, facility, or water supply system outside the state as [infested]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]it has credible evidence suggesting the presence of a [Dreissna mussel.]Dreissena mussel in that water body, facility, or water supply system.

([c]4) Where the number of [infested waters]Infested Waters in a particular area is numerous or growing, or where surveillance activities or infestation containment actions are deficient, the Wildlife Board may designate geographic areas as [infested]Infested with Dreissena mussels.

(5) The following water bodies and geographic areas are classified as infested:

(a) all coastal and inland waters in:

(i) Colorado;

(ii) California;

(iii) Nevada;

(iv) Arizona;

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

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

(vii) Mexico;

(b) Lake Powell and that portion of the:

(i) Colorado River between Lake Powell and Spanish Bottoms in Canyonlands National Park;

(ii) Escalante River between Lake Powell and the Coyote Creek confluence;

(iii) Dirty Devil River between Lake Powell and the Highway 95 bridge; and

(iv) San Juan River between Lake Powell and Clay Hills Crossing; and

(c) other waters established by the Wildlife Board and published on the DWR website.

(6) The Wildlife Board may remove an infested classification if:

(a) the division samples the affected water body for seven (7) consecutive years without a single sampling event producing evidence sufficient to satisfy the criteria for a "suspected" classification, as defined in this rule; or

(b) the controlling entity eradicates all Dreissena mussels at the water body, facility, or water supply system through chemical or biological treatments, desiccation, or freezing, and the division verifies in writing that Dreissena mussels are no longer present.

 

R657-60-8. Closure Order for a Water Body, Facility, or Water Supply System.

(1)(a) The division may classify a water body, facility, or water supply system as suspected or detected if it meets the minimum criteria for suspected or detected, as defined in this rule.

(b) If the division [detects or suspects a Dreissena mussel is present in]classifies a water body, facility, or water supply system [in the state]as either suspected or detected, the division director or designee may, with the concurrence of the executive director, issue an order closing the water body, facility, or water supply system to the introduction or removal of conveyances or equipment.

([b]c) The director shall consult with the controlling entity of the water body, facility, or water supply system when determining the scope, duration, level and type of closure that will be imposed in order to avoid or minimize disruption of economic and recreational activities.

(d) A closure order may;

[(c) A closure order may;

] (i) close the water entirely to conveyances and equipment;

(ii) authorize the introduction and removal of conveyances and equipment subject to the decontamination requirements in R657-60-2(2)(b) and R657-60-5; or

(iii) impose any other condition or restriction necessary to prevent the movement of Dreissena mussels into or out of the subject water.

(iv) a closure order may not restrict the flow of water without the approval of the controlling entity.

(2)(a) A closure order issued pursuant to Subsection (1) shall be in writing and identify the:

(i) water body, facility, or water supply system subject to the closure order;

(ii) nature and scope of the closure or restrictions;

(iii) reasons for the closure or restrictions;

(iv) conditions upon which the order may be terminated or modified; and

(v) sources for receiving updated information on the [status of infestation]presence of Dreissena mussels and closure order.

(b) The closure order shall be mailed, electronically transmitted, or hand delivered to:

(i) the controlling entity of the water body, facility, or water supply system;

and

(ii) any governmental agency or private entity known to have economic, political, or recreational interests significantly impacted by the closure order; and

(iii) any person or entity requesting a copy of the order.

(c) The closure order or its substance shall further be:

(i) posted on the division's web page; and

(ii) published in a newspaper of general circulation in the state of Utah or the affected area.

(3)(a) If a closure order lasts longer than seven days, the division shall provide the controlling entity and post on its web page a written update every 10 days on its efforts to address the Dreissena mussel infestation.

([a]b) The 10 day update notice cycle will continue for the duration of the closure order.

(4)(a) Notwithstanding the closure authority in Subsection (1), the division may not unilaterally close or restrict a suspected or detected water supply system[ infested with Dreissena mussels] where the controlling entity has prepared and implemented a control plan in cooperation with the division that effectively [eradicates or ]controls the spread of Dreissena mussels from the water supply system.

(b) The control plan shall comply with the requirements in R657-60-9.

(5) Except as authorized by the Division in writing, a person may not violate any provision of a closure order.

(6) A closure order or control plan shall remain effective so long as the water body, water supply system, or facility remains classified as suspected or detected.

(7) The director or his designee may remove a Suspected classification if:

(a) the division samples the affected water body for three (3) consecutive years without a single sampling event producing evidence sufficient to satisfy the criteria for a "suspected" classification, as defined in this rule; or

(b) the controlling entity eradicates all Dreissena mussels at the water body, facility, or water supply system through chemical or biological treatments, desiccation, or freezing, and the division verifies that Dreissena mussels are no longer present; or

(8) The director or his designee may remove a detected classification if:

(a) the division samples the affected water body for five (5) consecutive years without a single sampling event producing evidence sufficient to satisfy the criteria for a "suspected" classification, as defined in this rule; or

(b) the controlling entity eradicates all Dreissena mussels at the water body, facility, or water supply system through chemical or biological treatments, desiccation, or freezing, and the division verifies that Dreissena mussels are no longer present.

 

R657-60-9. Control Plan Required.

(1) The controlling entity of a water body, facility, or water supply system may develop and implement a control plan in cooperation with the division prior to infestation designed to:

[(a)](a) avoid the infestation of Dreissena mussels; and

(b) control or eradicate an infestation of Dreissena mussels that might occur in the future.

(2) A pre-infestation control plan developed consistent with the requirements in Subsection (3) and approved by the division will eliminate or minimize the duration and impact of a closure order issued pursuant to Section 23-27-303 and R657-60-8.

(3) If [the division detects or suspects a Dreissena mussel is present in] a water body, facility, or water supply system [in]within the state [that]is classified as infested, detected, or suspected, and it does not have an approved control plan[ and issues a closure order], the controlling entity shall cooperate with the division in developing and implementing a control plan to address the:

(a) scope and extent of the [infestation]presence of Dreissena mussels;

(b) actions proposed to control the pathways of spread of [the infestation;]Dreissena mussels;

(c) actions proposed to control the spread or eradicate the [infestation]presence of Dreissena mussels;

(d) methods to decontaminate the water body, facility, or water supply system, if possible;

(e) actions required to systematically monitor the [level and extent of the infestation]presence of Dreissena mussels; and

(f) requirements and methods to update and revise the plan with scientific advances.

(4) [Any post-infestation]All control [plan]plans prepared pursuant to Subsection (3) shall be approved by the Division before implementation.

(5) A control plan prepared pursuant to this Section may require that all conveyances and equipment entering or leaving the subject water to comply with the decontamination requirements in R657-60-2(2)(b) and R657-60-5.

(6) Except as authorized by the Division and the controlling entity in writing, a person may not violate any provision of a control plan.

 

R657-60-10. Procedure for Establishing a Memorandum of Understanding with the Utah Department of Transportation.

(1) The division director or designee shall negotiate an agreement with the Utah Department of Transportation for use of ports of entry for detection and interdiction of Dreissena Mussels illegally transported into and within the state. Both the Division of Wildlife Resources and the Department of Transportation must agree upon all aspects of Dreissena Mussel interdiction at ports of entry.

(2) The Memorandum shall include the following:

(a) methods and protocols for reimbursing the department for costs associated with Dreissena Mussel interdiction;

[(b)](b) identification of ports of entry suitable for interdiction operations;

(c) identification of locations at a specific port of entry suitable for interdiction operations;

(d) methods and protocols for disposing of wastewater associated with decontamination of equipment and conveyances;

(e) dates and time periods suitable for interdiction efforts at specific ports of entry;

(f) signage notifying motorists of the vehicles that must stop at the port of entry for inspection;

(g) priorities of use during congested periods between the department's port responsibilities and the division's interdiction activities;

(h) methods for determining the length, location and dates of interdiction;

(i) training responsibilities for personnel involved in interdiction activities; and

(j) methods for division regional personnel to establish interdiction efforts at ports within each region.

 

R657-60-11. Conveyance or Equipment Detainment.

(1) To eradicate and prevent the infestation of a Dreissena mussel, the division may:

(a) temporary stop, detain, inspect, and impound a conveyance or equipment that the division reasonably believes is in violation of Section 23-27-201 or R657-60-5;

(b) order a person to decontaminate a conveyance or equipment that the division reasonably believes is in violation of Section 23-227-201 or R657-60-5.

(2) The division, a port-of-entry agent or a peace officer may detain or impound a conveyance or equipment if[;]:

(a) the division, agent, or peace officer reasonably believes that the person transporting the conveyance or equipment is in violation of Section 23-27-201 or R657-60-5.

(3) The detainment or impoundment authorized by Subsection (2) may continue for[;]:

(a) up to five days; or

(b) the period of time necessary to:

(i) decontaminate the conveyance or equipment; and

(ii) ensure that a Dreissena mussel is not living on or in the conveyance or equipment.

 

R657-60-12. Penalty for Violation.

(1) A violation of any provision of this rule is punishable as provided in Section 23-13-11.

(2) A violation of any provision of a closure order issued under R657-60-8 or a control plan created under R657-60-9 is punishable as a criminal infraction as provided in Section 23-13-11.

 

KEY: fish, wildlife, wildlife law

Date of Enactment or Last Substantive Amendment: [November 7, 2013]2014

Notice of Continuation: August 5, 2013

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