Section NR 111.16 - Protection of threatened and endangered species and fragile species(1) PROTECTION OF THREATENED AND ENDANGERED SPECIES AND FEDERALLY DESIGNATED CRITICAL HABITAT. A WPDES permit for a facility subject to this chapter may include additional control measures, monitoring requirements, and reporting requirements that are designed to minimize incidental take, reduce or remove more than minor detrimental effects to threatened and endangered species and federally designated critical habitat, or avoid jeopardizing threatened and endangered species or destroying or adversely modifying federally designated critical habitat, for example prey base. The control measures, monitoring requirements, and reporting requirements may include measures or requirements identified by the U.S. fish and wildlife service during the 60-day review period under sub. (3) or the public notice and comment period. When established in the permit by the department, the owner or operator shall implement any such requirements. The department may include the additional permit requirements if at least one of the following applies: (a) Based on information submitted to the department by any fishery management agency or other relevant information, there are migratory, sport, or commercial species subject to entrainment that may be directly or indirectly affected by the cooling water intake structure.(b) It is determined by the department, based on information submitted by any fishery management agencies or other relevant information, that operation of the facility, after meeting the entrainment standard of this section, would still result in undesirable cumulative stressors to listed and proposed threatened and endangered species, and federally designated and proposed critical habitat.(2) SUPPLEMENTAL TECHNOLOGIES AND MONITORING. The department may require additional technologies for protection of fragile species and may require additional monitoring of species of fish and shellfish not already required under s. NR 111.42(1). The department may consider data submitted by other interested parties. The department may also require additional study and monitoring if a threatened or endangered species has been identified in the vicinity of the intake.(3) U.S. FISH AND WILDLIFE SERVICE REVIEW. The department shall transmit all permit applications for facilities subject to this subchapter to the appropriate field office of the U.S. fish and wildlife service upon receipt for a 60-day review prior to public notice of the draft or proposed permit. The department shall provide the public notice and an opportunity to comment as required under s. 283.39, Stats., and shall submit a copy of the fact sheet, the permit application, and the draft permit to the appropriate field office of the U.S. fish and wildlife service. This includes notice of specific cooling water intake structure requirements, notice of the draft permit, and any specific information the department has about federal threatened or endangered species and critical habitat that are or may be present in the action area, including any proposed control measures and monitoring and reporting requirements for the species and habitat.(4) TAKE DISCLAIMER. (a) Nothing in this chapter authorizes take, as defined in 16 USC 1532(19) and s. 29.604, Stats., of federally or state listed threatened or endangered species of fish or wildlife. Such take is prohibited under the federal endangered species act unless it is exempted under 16 USC 1536(o) or permitted under 16 USC 1539(a) and is prohibited under s. 29.604, Stats., unless it is permitted or authorized under s. 29.604(6m) or (6r), Stats. Absent an exemption, authorization, or permit, any facility operating under the authority of this chapter may not take threatened or endangered wildlife.(b) Permits for facilities with cooling water intake structures shall include the following language as a permit condition: "Nothing in this permit authorizes take for the purposes of a facility's compliance with the Endangered Species Act or with Wisconsin's endangered species law."Wis. Admin. Code Department of Natural Resources NR 111.16
Adopted by, CR 19-105: cr. Register May 2020 No. 773, eff. 6/1/2020