URGENT. Kentucky NWCO Regulations are changing July 5th, 2023.
Please note that the location of each of these regulations is specific to the proposed law and not the current law. Please look up this information on the proposed regulation only. View the new regulation here: https://apps.legislature.ky.gov/law/kar/titles/301/003/120/REG/
Our comments so far:
Overall
- This regulation fails to define what a “take” is under the nuisance wildlife control laws.
- This regulation fails to address federal laws correctly and specifically conflicts with federal law. Each instance is detailed below.
- This regulation requires that a nuisance wildlife control operator hold federal permits that do not exist. This effectively prevents an operator from taking the appropriate action with an endangered and threatened species on a federal level.
- Section 2(2):
- The Department of Fish and Wildlife routinely takes months to issue a renewal of a nuisance wildlife control permit. The way this is written may prohibit a nuisance wildlife control company from operating while the permit is in the renewal process. This violates the spirit of the law which states that the permit shall be valid from March 1st through the last day of February.
- A permit officer who decides they do not like a permittee could indefinitely sit on their permit renewal resulting in significant loss of income because of their inaction. This can expose the department to civil liability. This practice has already happened with multiple permittees and has been documented.
- Section 2(2)(a):
- No definition for “a correct and complete” commercial permit application has been provided. This leaves this up to the discretion of the individual permit officer and can result in a violation of the permittees civil rights if this is not enforced fairly and evenly for everyone in the state. This opens the department up to civil litigation for losses from commercial companies.
- Section 2(2)(b):
- No Commercial NWCO Annual Activity Report sample has been provided at all by the Department. If this report includes information on the names, addresses, phone numbers or any other personally identifiable information of a customer of a nuisance wildlife control operation this could potentially violate that person’s right to privacy.
- Section 2(3)(c):
- Kentucky department of Fish and Wildlife addressed this incorrectly and the regulations provided. They specifically stated that this would have no economic impact on a wildlife control company. The cost of this test is $200. This is an increase of $200 for each employee of each wildlife control company to take this test. In addition they will continue charging a $100 permit fee so the total cost for each individual nuisance wildlife control operator is now going to be $300 per year per employee.
- Section 2(3)(d):
- The department has been illegally allowing sub permitted individuals under a master permit for years without authority under the regulation. This regulation does nothing to correct that practice. This practice places a significant financial burden on smaller nuisance wildlife control operators in the state that do not do the volume of business that a large commercial operator does. This practice is likely unconstitutional.
- Section 2(5):
- The purpose of this section was to retroactively provide permit coverage for nuisance wildlife control activities being performed while the permit is in the renewal process. This directly contradicts Section 2(2) which says no nuisance wildlife control activity can be performed before a valid nuisance wildlife control operator permit is issued.
- Section 3(2)(a):
- This section should be completely removed as it conflicts with the requirement of an annual activity report. The annual activity report will not contain all of the activity from the permitted if this is placed into regulation.
- Section 3(5):
- This section may potentially indicate that every single written word in any written or electronic form becomes public information. This likely violates the constitutionally protected privacy rights of the individual customers of the nuisance wildlife control operation.
- Release sites used by nuisance wildlife control operators are not public record and should not be public record. Making this a public record by requiring the production of these records on demand places every release site used by every nuisance wildlife control operator in the state in jeopardy.
- Section 4(1):
- The United states Fish and Wildlife service grants anyone the right to pick up an injured or orphaned federally protected bird and transport that animal to a licensed wildlife rehabilitation facility Within a specific time period. This will result in less animals being taken to wildlife rehabilitation facilities and infringe on federal law.
- Section 4(2)(a):
- This regulation requires that a nuisance wildlife control operator immediately transport a federally protected species to a permitted wildlife rehabilitator. This fails to address weekends when a rehabilitation facility is closed or overnight hours when a rehabilitation facility is unreachable. This will result in the NWCO being forced to leave behind a federally endangered species because they are not able to reach a licensed wildlife rehabilitator.
- Section 4(2)(b):
- Fails to allow a nuisance wildlife control operator releasing an animal to acclimate that animal to the release site. A nuisance wildlife control operator trained in a soft release technique should be allowed to temporarily hold an animal in a location that is suitable for release providing food and water to allow it to adjust to that location in an attempt to prevent mortality from that relocation. This would be the same practice used by a wildlife rehabilitator who has wide leeway in reacclimating that animal in the wild under wildlife rehabilitation regulations in the state.
- Section 4(2)(f):
- The public health code in the state of Kentucky requires a bat which has bitten anyone to be euthanized and tested for rabies. In cases where a presumed bite occurs this regulation will prohibit A nuisance wildlife control operator from actually testing the bat they have removed from that residence or building. This is completely at odds with generally accepted practices nationwide by the CDC and state law. A nuisance wildlife control operator should be able to make the educated decision of euthanizing a bat that is a presumed bite and providing that to the public health authority in their local jurisdiction.
- This regulation prohibits the euthanasia of a sick bat that may have white nose syndrome requiring the nuisance wildlife control operator to release the sick bat to continue spreading white nose syndrome period.
- Outside of a presumed bite or obviously sick animal, the bat should be released either on site or at a specific release site by the operator.
- Section 6(2)(e and f):
- It has been generally accepted that the Department of Agriculture regulates the use of rodenticides for dispatching mice and rats. This regulation likely conflicts with agriculture regulations and laws.
- Section 6(2)(g):
- This regulation prohibits a nuisance wildlife control operator from bringing an injured or orphaned animal to a licensed wildlife rehabilitation facility. Nuisance wildlife control operators have specific training in many cases in handling dangerous wild animals. If a wildlife rehabilitation facility agrees to accept an injured or orphaned animal the nuisance wildlife control operator should be allowed to bring that animal to that facility. In fact this could be a significant income generator in the state for these facilities which receive no state, local or federal funding if the operator chooses to donate to that facility with that animal the fee that may have been charged to that customer. This is already a significant revenue generator in other states across the United States for wildlife rehabilitation facilities.
- Section 6(3)(h):
- It has been generally accepted that the Department of Agriculture regulates the use of rodenticides for dispatching mice and rats. This regulation likely conflicts with agriculture regulations and laws.
- Section 7 (generally)
- This section specifically prohibits a nuisance wildlife control operator from bringing a captured bat to a public health facility for euthanasia due to a confirmed or presumed bite from that bat in a human.
- Transporting wildlife for release in a safe manner that minimizes stress to the animal can be interpreted in many ways and will likely open the department up for civil litigation when applied unevenly across all operators in the state.
- Section 7(1)(c)(2):
- This section will require the euthanasia of all rabies vector species in large municipalities Since it prohibits the transfer of those animals out of county.
- Section 9(b-l):
- This section violates the due process afforded to every American in the United States by taking away the ability of the operator to fight against false charges. If an operator is accused of a crime and cited, and a judge or jury of their peers finds them not guilty any department employee will still be able to suspend and terminate that license based on their mere thoughts on the matter. Imagine an operator tells a permit officer they are wrong and the permit officer disagrees with that decision. Because that operator disagreed with the permit officer they no longer like them and at any time they can inspect their records, find anything they want wrong with anything even if not valid as a violation, and then suspend that permit indefinitely pending the outcome of an administrative regulation!
- A nuisance wildlife control operator who has his permit suspended pending investigation and a hearing will lose a significant amount of their income even if the alleged violation is proven untrue. This violates the constitutional rights and due process afforded by the constitution of the United States of America and the Commonwealth of Kentucky.
- The department is opening themselves up for civil litigation and significant liability to any operator whose permit is suspended pending a hearing. Should a hearing officer choose to reinstate the permit and disagree with the department, the department will likely be liable for significant civil liability from the documented loss of income to that specific operator.
- If the department chooses to “rubber stamp” as valid every alleged violation because of the concern of civil liability resulting in the loss of employment or livelihood by one of the operators regulated by this regulation the department is no longer an impartial body. This means any decision made by the department immediately opens the department to civil liability.
- The department is attempting to be the judge, jury and executioner for every one of these permits. They are trying to circumvent state law and due process.
- Every single operator whose permit is not reinstated via an administrative regulation will likely sue the department, win and get civil damages awarded against the department.
- Section 10(1)(a-b):
- These two documents have never been promulgated as a part of this regulation and do not exist.
- Section 10(3):
- The department’s website address referenced here does not provide any of this material. The department failed to post this information at all.
- View the video of the website not showing this regulation: https://www.loom.com/share/6e12224223d74b489812618f0772c4e5
Status of This Administrative Regulation:
- This regulation has already been through the process and will become law July 5th unless pulled by Kentucky Fish and Wildlife Staff.
Current Actions By KYWCOA:
- Dr. Chris Christensen of Critter Control and KYWCOA Executive Director Beau Gast submitted comments to multiple Departmental staff members and Commission Members with our concerns. No action has resulted from this so far.
- Dr. Chris Christensen has spoken with numerous professional colleagues and non-KYDFRW agencies including the Kentucky Department of Agriculture regarding this legislation and no action has resulted yet.
- KYWCOA along with Critter Control and Chris Allen of Tailor Made Pest Control attended the Kentucky Department of Fish and Wildlife Resources meeting on 06/16/2023 and had productive conversations with some Departmental Staff and Commissioners however no action has resulted yet.
Potential Future Actions By KYWCOA:
- We continue to request that Kentucky Fish and Wildlife pull these regulations from the Legislative Research Commission. The Department has the right to pull them before they are enacted as law on July 5th. They have refused to do so at this time.
- File a lawsuit prior to or after this Administrative Regulation is enacted challenging the regulations and the process by which they were promulgated. This is our last resort.