EMERGENCY REGULATION FILING - 03/14/2008
Basis and Purpose
Chapter 9 - Division Properties

BASIS AND PURPOSE

The Wildlife Commission FINDS that adoption of this emergency regulation is imperatively necessary to protect public welfare, that is, the public's interest in protecting Division controlled properties and the state’s aquatic resources located thereon from adverse impacts associated with aquatic nuisance species, including, but not limited to, zebra mussels.  In that regard, the Wildlife Commission also acknowledges and takes specific notice of the fact that the Board of Parks and Outdoor Recreation recently adopted a similar emergency aquatic nuisance species regulation to protect State Parks controlled by the Division of Parks and Outdoor Recreation.

Zebra mussels have just recently been discovered in Pueblo Reservoir in Lake Pueblo State Park located in Pueblo County.  This discovery is the first known occurrence of zebra mussels in Colorado.  Zebra mussels are an invasive exotic aquatic species that threatens to have a very significant and detrimental impact on Colorado’s aquatic resources.

The Pueblo State Fish Hatchery, which receives its water supply from Pueblo Reservoir, is undergoing an assessment regarding options to prevent the spread of adult mussels and veligers (the mussel’s larval form).  Sampling inspections have been conducted to determine if zebra mussels or larvae are present in the hatchery unit, to date none have been detected.  Pueblo Hatchery raises a variety of warm and cold-water species of fish (walleye, bluegill, crappie, channel catfish, smallmouth bass, wiper, rainbow, cutthroat X rainbow hybrid, and brown trout) and distributes these fish across the state each year.  No fish are planned to be stocked from the Pueblo Hatchery until April this year.  Effective water treatment options exist to eliminate adult zebra mussels and veligers prior to the fish being stocked.

The zebra mussel gets its name from the black- (or dark brown) and white-striped markings that appear on its shell.  Zebra mussels are native to the Caspian, Black, and Azov seas of Eastern Europe.  Quagga mussels, a close relative of zebra mussels that inhabit deeper water have not been detected at Pueblo Reservoir at this time. Quagga mussels are native to the Dneiper River drainage of the Ukraine.  Quagga mussels are small, freshwater bi-valve mollusks (relatives to clams and oysters) that are triangular in shape with an obvious ridge between the side and bottom and can have ecological and economic impacts similar to zebra mussels. 

These exotic mussels were first discovered in the United States in Lake Saint Clair, Michigan, in 1988 and are believed to have been introduced in 1986 through ballast water discharge from ocean-going ships.  Since their initial discovery, zebra mussels have spread rapidly throughout the Great Lakes and Mississippi River Basin states and other watersheds throughout the eastern and central United States. Quagga mussels have not spread as extensively.

Zebra mussels do not pose a known threat to human health. However, biologists are concerned that zebra mussels may cause ecological shifts in the lakes they invade, with serious consequences to valuable wildlife resources.  Further, because these invasive mussels attach to hard surfaces like concrete and pipes, they will affect canals, aqueducts, water intakes and dams, resulting in greatly increased maintenance costs for those facilities. 
 
The primary method of overland dispersal of these mussels is through human-related activities.  Given their ability to attach to hard surfaces and survive out of water, many infestations have occurred by adult mussels hitching rides on watercraft.  The microscopic larvae also can be transported in bilges, ballast water, live wells, or any other equipment that holds water. 

Zebra mussels are primarily algae feeders. They feed by filtering up to a liter of water per day through a siphon.  These mussels consume large portions of the microscopic plants and animals that form the base of the food web.  The removal of significant amounts of phytoplankton from the water can cause a shift in native species and a disruption of the ecological balance of a lake or other waterway. 

These mussels can settle in massive colonies that can block water intake and affect municipal water supply and agricultural irrigation and power plant operation.  In the United States, Congressional researchers estimated that zebra mussels alone cost the power industry $3.1 billion in the 1993-1999 period, with their impact on industries, businesses, and communities being more than $5 billion. 

Zebra mussels were previously placed on the “prohibited species” list by the Wildlife Commission due in large part because of the significant threat they posed to native aquatic resources and other state resources and facilities, as was also the case for all other prohibited aquatic wildlife species, and this emergency regulation is a logical extension of that previous decision.

The Wildlife Commission FINDS that the inspection, removal and disposal, and quarantine requirements adopted for Division controlled properties are imperatively necessary to prevent the further establishment or spread of aquatic nuisance species, specifically, including zebra mussels, into other waters of the state.

The adoption of this emergency regulation is an urgent priority and adoption of this or a similar regulation in permanent form is necessary and prudent to provide protection against the unintentional spread of zebra mussels in Colorado.  The Wildlife Commission also recognizes that threats similar to that posed by zebra mussels are also posed by other aquatic nuisance species and that the Division of Wildlife needs to have an effective means of dealing with these threats as they may arise.

Therefore, during the 90-day effective period of this emergency regulation, the Wildlife Commission has directed the Division of Wildlife to notice and bring a regulation forward for consideration by the Wildlife Commission that will address threats posed by aquatic nuisance species on a permanent basis.  While that final regulation is being developed and considered, the Division of Wildlife should be able to adequately protect Division controlled properties and decrease the chance of any spread of zebra mussels or any other aquatic nuisance species discovered, through the inspection, removal and disposal, and quarantine requirements established by the emergency regulation.
  
Further, the Wildlife Commission FINDS that compliance with the generally applicable requirements for final rule-making under the Administrative Procedures Act is contrary to the public interest.   The generally applicable notice and publication requirements for final rules require that at least twenty days notice be given of any final rule-making, that such notice of final rule-making be published by the Secretary of State, and that the final rules be published for 20 days before they become effective.  Further complicating this process is the fact that the Secretary of State publishes notices of rule-making and final rules only once a month (on the 10th of each month) which greatly extends the time needed for a final rule-making.

Compliance with these generally applicable notice and publication requirements would in fact prevent the Wildlife Commission from adopting, and having in place, timely and adequate protections against the spread of aquatic nuisance species, such as the zebra mussel, throughout the state.  The general statewide boating season begins in earnest May 1st and earlier in many other locations located on the eastern plains and compliance with the generally applicable notice and publication requirements for a final rule would necessarily preclude its adoption until July 1, 2008.   

The Wildlife Commission has, to the extent it could, given notice of its emergency rule-making and allowed for public participation in the adoption of the emergency regulation.

Notice of the proposed emergency rule-making was posted at the state capitol, at the Division of Wildlife headquarters, Regional Service Centers, and Area Service Centers (area offices), indicating that the Wildlife Commission would consider the emergency regulation at its regularly scheduled meeting on March 13, 2008, and an opportunity to comment was provided to members of the public at that time.

The statutory authority for these regulations can be found in § 24-4-103, C.R.S., and the state Wildlife Act, §§ 33-1-101 to 33-6-209, C.R.S., specifically including, but not limited to: §§ 33-1-101, 102, 104, 105, 106-108, 115, and 121; §§ 33-2-104, 105, 106, and 107; § 33-3-104; §§ 33-4-101, 102, 102.5, 103, 116, 116.5, 117, and 119; § 33-5.5-102; and §§ 33-6-107, 109, 112, 113, 113.5, 114, 114.5, 117, 119, 120, 121, 124, 127, 128, 129, 131, 205, 206, 207, and 208. 

EFFECTIVE DATE - THESE REGULATIONS SHALL BECOME EFFECTIVE IMMEDIATELY UPON ADOPTION AND SHALL REMAIN IN FULL FORCE AND EFFECT FOR 90 DAYS OR UNTIL PERMANENT REGULATIONS TAKE EFFECT, AND THE EMERGENCY REGULATION IS REPEALED, AMENDED, OR SUPERSEDED.

APPROVED AND ADOPTED BY THE WILDLIFE COMMISSION OF THE STATE OF COLORADO THIS 13th DAY OF MARCH 2008.

Approved:
Thomas M. Burke
	Chairman

Attest:
Robert W. Bray
Secretary