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BEFORE THE NATURAL RESOURCES COMMISSION

OF THE STATE OF INDIANA

IN THE MATTER OF: AQUATIC INVASIVE SPECIES RULE ) AMENDMENT and ) Administrative Cause HYDRILLA VERTICILLATA REPEAL ) Number: 18-068E ) ) LSA Document #18-508(F)

REPORT ON RULE PROCESSING, PUBLIC HEARING, AND HEARING OFFICER ANALYSES WITH RECOMMENDATION REGARDING FINAL ACTION

1. RULE PROCESSING

For consideration as to final action, is the amendment to 312 IAC 18-3-23 to add two

plants, Nitellopsis obtusa (starry stonewort) and Stratiotes aloides (water soldier), to the

published list of prohibited invasive aquatic plants. Also proposed is the repeal of 312 IAC 18-3-

21, regarding the control of Hydrilla verticillata.

The Natural Resources Commission (the “Commission”) gave preliminary adoption to

the proposed amendments on November 13, 2018. At that time, the Commission members were

informed of the intent to combine the amendment to 312 IAC 18-3-23 and the repeal of 312 IAC

18-3-21 for efficiency.

For the proposal to amend 312 IAC 18-3-23, Samantha DeWester, Chief Legal Counsel

for the Department of Natural Resources (“DNR”) submitted to the Office of Management and

Budget (“OMB”) a request for “exemption to the suspension of rulemaking action under the

provisions of Executive Order 13-03”. In a letter dated October 5, 2018, Micah G. Vincent,

Director of OMB, wrote in response “Based upon DNR’s submission, the request qualifies for an

exception under paragraph 6(f) of Executive Order 13-03. Therefore, DNR may proceed with the

rule proposed in its September 10, 2018 submission.”

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For the proposal to repeal 312 IAC 18-3-21, Samantha DeWester, Chief Legal Counsel

for the Department of Natural Resources (“DNR”) submitted to the Office of Management and

Budget (“OMB”) a request for “exemption to the suspension of rulemaking action under the

provisions of Executive Order 13-03”. In a letter dated October 5, 2018, Micah G. Vincent,

Director of OMB, wrote in response “Based upon DNR’s submission, the request qualifies for an

exception under paragraph 6(b) of Executive Order 13-03. Therefore, DNR may proceed with

the rule proposed in its September 14, 2018 submission.”

The “Notice of Intent” to adopt the combined rule amendments was published in the

Indiana REGISTER at 20181121-IR-312180508NIA on November 21, 2018. The notice identified

Megan Abraham, Division Director, Division of Entomology and Plant Pathology, Department

of Natural Resources, as the “small business regulatory coordinator” for purposes of IC 4-22-2-

28.1.

The Commission caused the information required by IC 4-22-2-22.5 to be included in the

rulemaking docket maintained on its website at http://www.in.gov/nrc/2377.htm. The

rulemaking docket was also updated periodically as the rule adoption progressed.

As specified by Executive Order 2-89 and Financial Management Circulars 2010-4 and

2015-1, proposed fiscal analyses of the rule proposal, and the rule standards analysis under IC 4-

22-2-19.5 were submitted, along with a copy of the proposed rule language and a copy of the

posted Notice of Intent, to OMB on November 21, 2018, and to the Legislative Council on

November 26, 2018. On January 15, 2019, the Commission received an approval letter from

Jason D. Dudich, Director of the State Budget Agency, which stated, in part, “Furthermore, the

statement and analysis (attached hereto) provided by the Indiana Natural Resources Commission

is hereby adopted as the Office of Management and Budget’s own Fiscal Impact Statement for

the purpose of satisfying the requirements under IC 4-22-2-28(d). Also, it is adopted as the

Office of Management and Budget’s cost benefit analysis under IC 4-3-22-13(a).”

On January 17, 2019, the Division of Hearings submitted the proposed rule to the

Legislative Services Agency (“LSA”), along with the “Statement Concerning Rules Affecting

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Small Business” (also known as the “Economic Impact Statement” or EIS). The Notice of

Public Hearing with the Justification Statement (IC 4-22-2-24(d)(3)) was submitted to LSA on

January 23, 2019. On January 30, 2019, the text of the proposed rule; the notice of public

hearing; and the Economic Impact Statement (EIS) were posted to the Indiana REGISTER.

As required by IC 4-22-2.1-5(c)(2), the proposed rule amendment and the EIS prepared

by DNR were submitted to the Indiana Economic Development Corporation’s (IEDC) Small

Business Ombudsman on January 23, 2019. In the portion of the EIS for the proposed aquatic

invasive species amendment, that addressed the estimated total annual economic impact on small

businesses to comply, DNR stated the following:

The annual additional economic impact for marinas and boat repair, removal, and storage businesses will be negligible. These businesses are already subject to the rule and adding two plants does not impose additional costs on these businesses. It is estimated that visual inspection of a 30-foot boat for invasive species and hand removal of all regulated species takes approximately fifteen minutes. At $10 per hour, inspection and removal would cost $2.50. An average business may remove 30 boats a month during the 5 month boating season costing the business a total of $75 in labor per month. No special equipment is necessary to clean plant material from aquatic equipment. It is likely these businesses are already conducting these inspections to remove plants currently regulated under the rule. Including two more plants to the regulation may increase the number of plants removed from a given piece of equipment, but it should not impose additional economic impact on the businesses.

For the repeal of 312 IAC 18-3-21, the portion of the EIS that addressed the estimated total

annual economic impact on small businesses to comply, DNR stated, “[t]here are no small

businesses that will be impacted economically by this rule repeal.”

In a letter dated January 24, 2019, Katelyn Colclazier, Small Business Ombudsman for

the IEDC made the following comments: “Based upon my assessment as the Small Business

Ombudsman, I have concluded that the proposed rule will not impose an additional burden on

small businesses in Indiana.”

Following receipt from LSA of an “Authorization to Proceed”, the Division of Hearings

caused the Notice of Public Hearing to be published on January 30, 2019 in The Indianapolis

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Star, a daily newspaper of general circulation in Marion County, Indiana. In addition, the notice

of the public hearing was posted to the Commission’s online rulemaking docket as required

under IC 4-22-2-22.5.

2. PUBLIC HEARING AND COMMENT

The February 21, 2019, public hearing was convened as published at the offices of the

Natural Resources Commission, Division of Hearings, Indiana Government Center North, 100

North Senate Avenue, Room N103, Indianapolis, Indiana. Megan Abraham attended the public

hearing on behalf of the DNR’s Division of Entomology and Plant Pathology. Eric Fischer also

attended on behalf of DNR. No member of the public attended.

The public comment period closed at 11:59 p.m. on January 21, 2019. The close of the

public comment period was posted to the Commission’s online rule docket at

http://www.in.gov/nrc/2377.htm. During the public comment period, no public comments were

received by mail. The following public comments were received through the online Rulemaking

Docket:

PUBLIC COMMENT (Submitted through Rulemaking Docket)

LSA Document #18-508 Aquatic Invasive Species

(Administrative Cause No. 18-068E)

Commenter Name Marion Mason City Odon County DAVIESS State Indiana E-Mail Address Vt91mason@gmail.com Comments I support this rule. Comment Received 11/22/2018 7:46:46 PM Commenter Name Aaron Stump City Greenwood County JOHNSON State Indiana E-Mail Address Aaroncg@gmail.com Comments This MUST be passed. Invasive species cost taxpayers millions to control and devastate our ecosystems. We need drastic measures to stop this now. Comment Received 11/25/2018 10:55:04 AM Commenter Name Karl Ackermann City Munster County LAKE State Indiana E-Mail Address acks123@sbcglobal.net Comments I support the adoption of this rule. I am a fisherman and these alien species ruin our water ways. This rule is a start. Let's keep on going. Comment Received 12/1/2018 10:53:14 AM Commenter Name Sharon Surdy City Griffith County LAKE State Indiana E-Mail Address sharonsurdy@att.net

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Comments I support the adoption of this rule to keep our water ways clear. Comment Received 12/1/2018 12:04:01 PM Commenter Name Tonia Flowers City Hammond County LAKE State IN E-Mail Address butterflygardentf@gmail.com Comments I support the adoption of this rule. It is important that we keep out water ways as clean as possible. The water ways are a great natural resource that we must protect. Comment Received 12/1/2018 12:06:01 PM Commenter Name Helen Paskiewicz City Highland County LAKE State Indiana E-Mail Address hjp9648@gmail.com Comments I support this rule. Invasive plants choke out native plants. More species should be added to this list Comment Received 12/1/2018 12:12:39 PM Commenter Name Dianne Hoffman City Hammond County LAKE State Indiana E-Mail Address happy6dh@aol.com Comments I support this rule. Please sell only native plants. Please continue to add invasive plants to your current list. Thank you. Comment Received 12/1/2018 12:19:14 PM Commenter Name Edith Bukwa City Hammond County LAKE State Indiana E-Mail Address ebukwa@yahoo.com Comments I support this bill! Many small waterways are clogged with invasives, so much so that ther is less room for the natives, hurting the fauna too! Comment Received 12/1/2018 12:24:43 PM Commenter Name John Tokarz City Hebron County PORTER State Indiana E-Mail Address jogato@netnitco.net Comments I support the adoption of this rule. Comment Received 12/1/2018 12:32:41 PM Commenter Name Patricia A Thompson City Highland County LAKE State Indiana E-Mail Address jploof@artic.edu Comments I support the adoption of this rule. I canoe and don't want invasive plants in our waterways. Comment Received 12/1/2018 12:33:11 PM Commenter Name Jame Shilling City Dyer County LAKE State Indiana E-Mail Address jpbiod@jorsm.com Comments I support this rule. Please ban all these plants, they are making almost impossible to manage natural areas. After college I worked for the Ohio DNR for 2 years and all I did was eradicate invasive plants. It is scary how much of the DNR budget goes exclusively to fight the invasives. Comment Received 12/13/2018 8:59:50 AM Commenter Name Joy Marburger City Chesterton County PORTER State Indiana Organization (optional) Society of Wetland Scientists E-Mail Address jmarburg@frontier.com Comments As a professional wetland ecologist and botanist, I recommend that the following plant species be added to noxious invasive species prohibited from sale: 1. Pistia stratiotes, water lettuce 2. Eichhornia crassipes, water hyacinth 3. Phragmites australis, common reed (becoming a dominant species in wetlands) 4. Typha x glauca, hybrid cattail (dominant in the wetlands of the Midwest) Much research has been done on hybrid cattail and its invasiveness. It is a hybrid of T. angustifolia and T. latifolia. Wisconsin has listed it as an invasive taxon. Both water hyacinth and water lettuce are sold in nurseries. Both are highly invasive in waterways and are non-native species. Both are banned in the Southeast. Wisconsin has banned their sale or

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propagation. Both can survive winters and water lettuce has been found in streams of Wisconsin. Comment Received 12/18/2018 3:36:53 PM Commenter Name Ellen Jacquart City Ellettsville County MONROE State IN Organization (optional) MC-IRIS E-Mail Address ellenjacquart@gmail.com Comments I support the addition of starry stonewort and water soldier to the list of banned aquatic invasive plants in Indiana. These additions allow our rules in Indiana to be more consistent with other midwestern states, making implementation and enforcement easier. The Division of Fish and Wildlife is to be commended for protecting the health of Indiana's lakes and rivers by banning invasive aquatic plants that threaten them. Comment Received 12/20/2018 1:15:51 PM Commenter Name Janet A. Hollis City Zionsville County BOONE State Indiana E-Mail Address Janet.Selby@gmail.com Comments Please enact this rule to add 2 aquatic plants to the list of prohibited plants. I am in favor of this rule.NCK5V Comment Received 12/20/2018 1:20:40 PM Commenter Name Janet A. Hollis City Zionsville County BOONE State Indiana E-Mail Address Janet.Selby@gmail.com Comments Please enact this rule to add 2 aquatic plants to the list of prohibited plants. I am in favor of this rule.NCK5V Comment Received 12/20/2018 1:21:01 PM Commenter Name Lyn Crighton City North Webster County KOSCIUSKO State United States Organization (optional) The Watershed Foundation E-Mail Address executive@watershedfoundation.org Comments Our organization is in favor of this rule. Lakes in our watershed are already spending thousands of dollars annually to combat Starry Stonewort - and it is still spreading. I've personally experienced the detriment to recreational lake use on Lake Tippecanoe. Due to its density and growth to the surface, it can stop a pontoon boat and even make the use of a kayak difficult. It even creates a barrier to fish passage - they can't get through it either. Adding these invasive species to the Prohibited List is an obvious protection that can only benefit our precious lakes and waterways. Comment Received 1/16/2019 5:08:42 PM Commenter Name Jane Webster EYLER City Leesburg County KOSCIUSKO State INdiana E-Mail Address jweyler2@cs.com Comments I am in favor of this new rule. Please adopt it. Comment Received 1/16/2019 6:20:26 PM Commenter Name John Eyler City Leesburg County KOSCIUSKO State INdiana E-Mail Address jweyler8@cs.com Comments Definitely in favor of adopting this new rule. Comment Received 1/16/2019 6:22:29 PM Commenter Name Debbie Lobacz City Fort Wayne County ALLEN State United States E-Mail Address dafy61@gmail.com Comments In favor of this rule! Comment Received 1/16/2019 9:22:23 PM Commenter Name Judy Ford City Marion County GRANT State Indiana E-Mail Address joodiek@icloud.com Comments Please add 2 dangerous INVASIVE SPECIES (Starry Stonewort and Water Soldier) to the list of PROHIBITED AQUATIC PLANTS. It is important it is to protect our favorite lakes! Thank you! Comment Received 1/16/2019 10:25:47 PM Commenter Name Jacqueline Fetherston City Columbia City County NOBLE State Indiana E-Mail Address jdfeth01@uky.edu

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Comments I support the addition of these plants to the list of invasive species. Comment Received 1/17/2019 7:38:26 AM Commenter Name Amol patel City Calgary County Out of State State Alberta E-Mail Address healthhakim@gmail.com Comments Keep up the awesome work! Thanks Amol Patel https://healthhakim.com Comment Received 1/17/2019 7:48:18 PM Commenter Name Lynn B Wernet City FREMONT County STEUBEN State United States E-Mail Address blwernet@aol.com Comments From the land of 101 lakes, I am in favor of this rule. We are starting to see starry stonewart in our lakes and it is so difficult to get rid of. Thank you. Comment Received 1/17/2019 10:20:37 PM Commenter Name Lynn B Wernet City FREMONT County STEUBEN State United States E-Mail Address blwernet@aol.com Comments From the land of 101 lakes, I am in favor of this rule. We are starting to see starry stonewart in our lakes and it is so difficult to get rid of. Thank you. Comment Received 1/17/2019 10:21:03 PM Commenter Name Susan Farris City Columbia City County WHITLEY State IN E-Mail Address cefarris@embarqmail.com Comments Please add (Starry Stonewort and Water Soldier) to the list of PROHIBITED AQUATIC PLANTS. Protect our Lakes! Comment Received 1/18/2019 7:48:53 AM Commenter Name Heather Harwood City Syracuse County KOSCIUSKO State United States Organization (optional) Wawasee Area Conservancy Foundation Inc. E-Mail Address info@wacf.com Comments The Wawasee Area Conservancy supports the addition of Nitellopsis obtusa (Starry Stonewort) to the published list of prohibited invasive aquatic plants. Starry Stonewort has grown from it's start in a channel off Johnson Bay in Wawasee, to over 230 acres in the lake, causing loss of native fish habitat, recreational and boating limitations. It's a problem in our lake of high priority. Comment Received 1/18/2019 11:30:05 AM Commenter Name Becky Flannery City Columbia City County NOBLE State Indiana E-Mail Address beckyflannery@yahoo.com Comments I agree. Comment Received 1/18/2019 1:59:04 PM Commenter Name Joy Marburger City Valparaiso County PORTER State IN Organization (optional) Valparaiso Chain of Lakes E-Mail Address jmarburg@frontier.com Comments Phragmites australis is a wetland plant so should be included in the aquatic list of invasives. Typha x glauca, hybrid cattail, should be included in list of prohibited invasive plant species. Many agencies are spending millions of dollars to control or eradicate it. Comment Received 1/27/2019 4:26:19 PM

On February 25, 2019, following a review of public comments, Megan Abraham,

Division Director for DNR’s Division of Entomology and Plant Pathology forwarded the internal

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comments of DNR staff to the hearing officer. DNR’s observations and recommendations did not

specifically recommend a change in the proposed rule amendment. DNR’s response to public

comment follows:

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3. HEARING OFFICER ANALYSES WITH RECOMMENDATIONS REGARDING FINAL ADOPTION Hearing Officer Analysis

The Proposal was not of significant interest to the public. While comments were not

extensive, the vast majority of the comments received by the Division of Hearings support

approval of the proposed rule amendment, without revision.

During preliminary adoption, regarding the amendment to 312 IAC 18-3-23, Abraham stated,

… when an invasive species escapes into a lake or stream, it displaces native aquatic plants, causing imbalances in fish populations and reducing recreational opportunities in that body of water. Prohibiting the [additional] two species will allow the Division to better protect the natural resources in Indiana. Abraham noted that eliminating invasive species from lakes and streams is difficult and expensive. Conversely, she noted that marinas and businesses specializing in watercraft repair, removal and storage are likely already inspecting boats for prohibited invasive aquatic plants so adding starry stonewort and water soldier as prohibited aquatic species will not impose an additional burden on those business.

Abraham also stated, regarding the repeal of 312 IAC 18-3-21,

…the 2012 adoption of 312 IAC 18-3-23 listed hydrilla as a prohibited invasive aquatic plant and since that time the hydrilla has been eradicated. Abraham said the repeal of 312 IAC 18-3-21 is to eliminate the redundancy in having two separate regulations controlling hydrilla. She stated that 312 IAC 18-3-23 is less restrictive and less burdensome than 312 IAC 18-3-21.

DNR’s response to public comment included DNR’s analysis of the

recommendation to add other plants and included DNR’s intent to continue to evaluate

other species. Abraham offered that future analysis and evaluation could potentially result

in the addition of other species through a future proposal for rule amendment. Abraham

also stated DNR’s intent to continue educational efforts regarding invasive species. DNR

recommended no alteration to the currently proposed rule amendment following its

public comment review.

Hearing Officer Recommendation

The Hearing Officer recommends final adoption of the proposal to amend 312 IAC 18-3-

23 to add two plants, Nitellopsis obtusa (starry stonewort) and Stratiotes aloides (water soldier),

to the published list of prohibited invasive aquatic plants and to repeal 312 IAC 18-3-21. For the

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reasons described immediately above. The rule language attached and incorporated by reference

at Exhibit A is recommended for final adoption, without revision.

Dated: March 1, 2019 ________________________________

Dawn Wilson Hearing Officer

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EXHIBIT A TITLE 312 NATURAL RESOURCES COMMISSION

Proposed Rule LSA Document #18-508(F)

DIGEST

Amends 312 IAC 18-3-23 to add two plants, Nitellopsis obtusa (starry stonewort) and Stratiotes aloides (water soldier), to the published list of prohibited invasive aquatic plants. Repeals 312 IAC 18-3-21. Effective 30 days after filing with the Publisher. 312 IAC 18-3-21; 312 IAC 18-3-23 SECTION 1. 312 IAC 18-3-23 IS AMENDED TO READ AS FOLLOWS: 312 IAC 18-3-23 Prohibited invasive aquatic plants Authority: IC 14-10-2-4; IC 14-24-3 Affected: IC 14-24 Sec. 23. (a) The following are prohibited invasive aquatic plants and are declared pests or pathogens regulated under this section:

(1) Azolla pinnata (mosquito fern). (2) Butomus umbellatus (flowering rush). (3) Caulerpa taxifolia (caulerpa or Mediterranean killer algae). (4) Egeria densa (Brazilian elodea, Brazilian waterweed, Anacharis, or Egeria). (5) Eichhornia azurea (anchored water hyacinth). (6) Hydrilla verticillata (Hydrilla or water thyme). (7) Hydrocharis morsus-ranae (European frogbit or common frogbit). (8) Hygrophilia polysperma (miramar weed, Indian swampweed, or hygro). (9) Ipomoea aquatica (Chinese waterspinach or swamp morning-glory). (10) Iris pseudacorus (yellow flag iris or tall yellow iris). (11) Lagarosiphon major (oxygen weed or African elodea). (12) Limnophila sessiliflora (Asian marshweed or ambulia). (13) Monochoria hastata (monochoria, arrowleaf, or false pickerelweed). (14) Monochoria vaginalis (heartshape or false pickerelweed). (15) Myriophyllum aquaticum (parrot feather or parrot feather watermilfoil). (16) Myriophyllum spicatum (Eurasian watermilfoil). (17) Najas minor (brittle naiad or brittle water nymph). (18) Nitellopsis obtusa (starry stonewort). (18) (19) Nymphoides peltata (yellow floating heart). (19) (20) Ottelia alismoides (duck lettuce). (20) (21) Potamogeton crispus (curlyleaf pondweed). (21) (22) Sagittaria sagittifolia (arrowhead). (22) (23) Salvinia auriculata (giant salvinia). (23) (24) Salvinia biloba (giant salvinia). (24) (25) Salvinia herzogii (giant salvinia). (25) (26) Salvinia molesta (giant salvinia).

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(26) (27) Sparganium erectum (exotic bur-reed). (28) Stratiotes aloides (water soldier). (27) (29) Trapa natans (water chestnut). (28) (30) Typha angustifolia (narrow-leaf cattail).

(b) This section applies to any part or life stage of the species identified in subsection (a). (c) Except as provided in subsection (d), a person must not do the following with respect to any species identified in subsection (a):

(1) Sell, offer for sale, gift, barter, exchange, or distribute a species. (2) Transport a species on or within any:

(A) boat; (B) trailer; (C) motor vehicle; (D) bait bucket; (E) fishing gear; (F) creel; (G) tackle; (H) tackle box; or (I) other means.

(d) Exempted from this section are the following:

(1) A person who possesses a species identified in subsection (a) under a permit issued by the state entomologist. (2) A person engaged in a project approved by the state entomologist for the destruction of a species.

(e) The division may regulate an area infested by a species identified in subsection (a) to prevent its movement. (f) A person who discovers a species identified in subsection (a) may do the following:

(1) Report the discovery to a department fisheries biologist or to the following address: Department of Natural Resources Division of Fish and Wildlife Aquatic Invasive Species Coordinator 402 West Washington Street, Room W273 Indianapolis, IN 46204

(2) Include in the report provided under subdivision (1): (A) The location of the discovery, including the name of the county and the waterway. (B) The date of the discovery. (C) Contact information for the person making the report, including telephone number and address.

(Natural Resources Commission; 312 IAC 18-3-23; filed Aug 1, 2012, 10:57 a.m.: 20120829-IR-312120050FRA; readopted filed Jul 17, 2014, 3:48 p.m.: 20140813-IR-312140105RFA) SECTION 2. 312 IAC 18-3-21 IS REPEALED.