2017 - 2018 LEGISLATURE
March 7, 2017 - Introduced by Senators Tiffany, Testin,
LeMahieu, Marklein and Stroebel, cosponsored by Representatives
Felzkowski, Stafsholt, Nygren, Mursau, Spiros, Quinn, Kulp, Jarchow, E.
Brooks, Horlacher, Edming, Ripp, Skowronski, Murphy, Snyder, Tittl,
Swearingen, Ballweg and Tauchen. Referred to Committee on Sporting
Heritage, Mining and Forestry.
1An Act to renumber
29.733 (1); to renumber and amend
29.733 (3); to amend
29.705 (2) (a), 29.733 (2) (a), 29.733 (2) (b), 29.733 (2) (e), 30.40 (1), 77.52 (13), 3
234.91 (1) (a), 234.91 (2) (b), 281.36 (3g) (a) 7., 281.36 (3n) (a) 1. b., 281.36 (4) 4
(e) (intro.), 283.31 (3) (intro.), 283.31 (4) (intro.), 283.31 (5m) and 348.27 (18) (c); 5
and to create
29.707, 29.733 (1d), 29.733 (1h) (c) 4., 29.733 (3) (b), 30.19 (1m) 6
(bm), 31.34 (3) (am), 77.54 (64), 281.346 (2) (bm), 281.36 (4) (am), 283.15 (4m) 7
and 348.27 (18) (a) 1. e. of the statutes; relating to: regulation of aquaculture
8and fish farms, providing an exemption from emergency rule procedures, and
9granting rule-making authority.
Analysis by the Legislative Reference Bureau
This bill makes various changes to the regulation of aquaculture and fish farms.
Under current law, no person may discharge dredged material or fill material
into a wetland unless the discharge is authorized by a wetland general permit or
individual permit issued by the Department of Natural Resources. An individual
permit is issued to a person for a particular discharge that is not covered under a
general permit. A general permit is issued for certain categories of discharges,
including a discharge that is part of a development for agricultural purposes if the
discharge does not affect more than 10,000 square feet of wetland. This bill adds
aquacultural purposes to this category of discharge.
This bill also exempts normal aquaculture activities from the requirement to
obtain an individual or general wetland permit, if the discharge is to a wetland that
has been created for aquacultural purposes in an area without any prior wetland
history. The bill defines “normal aquaculture activities” to include the following
activities in fish farms: 1) constructing, maintaining, or repairing ponds or raceways;
2) filling in or drawing down ponds or raceways; 3) maintaining or improving swales
or other drainage areas; and 4) maintaining, repairing, or replacing drains, pipes, or
other flowage controls. The bill also exempts the construction or maintenance of
roads used in fish farms from the requirement to obtain an individual or general
Current law requires an applicant for an individual wetland permit to submit
to DNR an analysis of the practicable alternatives to the proposed discharge that will
avoid and minimize the discharge's adverse impacts on the wetland and that will not
result in any other significant adverse environmental consequences. Under current
law, DNR must limit its review of practicable alternatives to those alternatives that
are located at the discharge site and any adjacent site if the proposed project is
necessary for the expansion of an existing industrial, commercial or agricultural
facility. The bill adds the expansion of an existing aquacultural facility to this list.
Natural bodies of water used as fish farms
The bill expands the category of natural bodies of water that may be used as
part of a fish farm to include an artificial water body that is used as a registered fish
farm or as part of a registered fish farm, regardless of the water source of the artificial
water body, including an artificial water body that is fed by a spring. Under current
law, a natural body of water may be used as a fish farm or part of a fish farm only if
the water body is a freeze-out pond, a preexisting fish rearing facility, or a body of
water for which DNR has issued a permit. The bill defines “natural body of water"
as a spring, stream, pond, lake, or wetland that was historically present in a natural
state but may have been physically altered over time.
The bill also creates an exemption to the general prohibition on using a natural
water body as a fish farm for a person who holds a permit from DNR to use a natural
water body as a fish farm and who takes no action in the water body other than
maintaining the fish farm facility.
Navigable water permits
This bill also creates an exemption from the requirement to obtain a permit
from DNR to construct, dredge, or enlarge an artificial water body that connects with
a navigable waterway or that is located within 500 feet of the ordinary high-water
mark of an existing navigable waterway. This exemption applies only to the
maintenance or repair of an artificial water body or registered fish farm. This
exemption does not apply to the requirement under current law to obtain a permit
to grade or remove more than 10,000 square feet of topsoil from the bank of a
Dams on navigable streams
This bill also creates an additional exemption to the requirement that a person
maintaining a dam on a navigable stream must allow at least 25 percent of the
natural low flow of water of the stream to pass through the dam. Under current law,
this requirement does not apply to a dam where the water is discharged directly into
a lake, mill pond, storage pond, or cranberry marsh, or to cases in which the DNR
determines that the required minimum discharge is not necessary for the protection
of fish life. Under the bill, this requirement also does not apply to an existing dam
in an existing, registered commercial fish farm, located in Langlade County, where
the water is returned to the navigable stream.
This bill clarifies what conditions DNR may include in a Wisconsin Pollutant
Discharge Elimination System (WPDES) permit issued to a fish farm.
Under current law, DNR must include in WPDES permits issued to certain
large fish farms requirements that are based on certain provisions under federal law.
Those provisions require fish farms to use specified best-management practices
relating to discharging solids, storing materials, and inspecting and maintaining
production and wastewater treatment systems.
This bill also prohibits DNR from including additional conditions in a permit
issued to a large fish farm unless those conditions are necessary to meet certain
standards, such as federal or state water quality standards or schedules of
compliance established by DNR. The bill also states that any condition that is
included in a permit issued to a large fish farm must be based on site-specific best
management practices to the greatest extent allowed under federal law.
Variances to water quality standards
The bill also specifies certain information that DNR must use in deciding
whether to grant a variance to a fish farm.
Current law allows a WPDES permittee to request a variance from applicable
water quality standards. Under current federal regulations, any variance granted
by DNR must also be reviewed and either approved or disapproved by the federal
Environmental Protection Agency. This bill states that, when deciding whether to
grant a variance to a fish farm, DNR must rely on the same guidance documents and
other information that would be used by EPA in reviewing the variance.
Water withdrawals under the Great Lakes Compact
The bill also provides that if a fish farm withdraws water and places it in an
aquacultural pond that is registered with the Department of Agriculture, Trade and
Consumer Protection, any subsequent use of that water from that pond is not a
“withdrawal" for purposes of the Great Lakes Compact, as long as the subsequent use
is not, and does not result in, a diversion or intrabasin transfer out of the original lake
basin. The Great Lakes Compact generally prohibits water from within the Great
Lakes basin from being diverted out of the basin and imposes certain requirements
on a person who withdraws 100,000 gallons of water per day or more from the Great
Furnishing fish eggs for stocking purposes
This bill also allows DNR to furnish fish or fish eggs to private ponds, private
club, corporations, or preserves that are located in this state and that have entered
into an agreement with DNR, if the fish or the fish grown from the fish eggs will
ultimately be stocked into waters of the state that are open to the general public.
Under the bill, if the entity receiving fish eggs from DNR creates more fish than are
required under its contract with DNR, those excess fish are not required to be stocked
into waters of the state that are open to the general public.
Agricultural use in the Lower Wisconsin State Riverway
Under current law, a person may develop or use land in the Lower Wisconsin
State Riverway for agricultural use if the development and use comply with the rules
for the soil and water resource management program promulgated by DATCP. This
bill adds aquaculture to the list of activities that make up “agricultural use" in this
Sales and use tax exemption
This bill creates a sales and use tax exemption for farm-raised fish sold to a fish
farm that is registered with DATCP.
WHEDA loan guarantees
Under current law, the Wisconsin Housing and Economic Development
Authority administers the Wisconsin Development Reserve Fund (WDRF) to provide
loan guarantees to farmers and other small businesses. Current law provides that
a loan made to a farmer to finance the acquisition of agricultural assets or the cost
of improvements to facilities or land, which are acquired or made for agricultural
purposes, is eligible for a guarantee from the WDRF. This bill expands the type of
loans that are eligible for this guarantee to include loans made to acquire assets used
in aquaculture and loans that are made for aquacultural purposes.
Transportation of agricultural products
This bill also allows the Department of Transportation to issue permits for the
transportation of fish and minnows in vehicles that exceed certain weight
DNR and DATCP rules
In addition, the bill requires DNR to promulgate rules that define the role and
extent that genetics is involved in DNR's fish stocking strategies and that
standardize DNR's fish donation procedures. The bill also requires DNR to assess
the viability of continuing to classify bait fish and forage fish as established
nonnative fish species and to promulgate new rules as necessary. Under the bill,
DNR and DATCP must review the departments' rules relating to viral hemorrhagic
septicemia and promulgate new rules as necessary. The bill also requires DNR to
assess, with DATCP, the efficiency and utility of the fish hatchery classification
system under rules promulgated by DATCP, and requires DATCP to promulgate new
rules as necessary.
Because this bill relates to an exemption from state or local taxes, it may be
referred to the Joint Survey Committee on Tax Exemptions for a report to be printed
as an appendix to the bill.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
29.705 (2) (a) of the statutes is amended to read:
(a) The department may not furnish fish
or fish eggs
from state 3
hatcheries to private ponds, private clubs, corporations,
or preserves unless the
4private pond, private club, corporation, or preserve is located in this state and has
5entered into an agreement with the department and the fish or the fish grown from
6the fish eggs will ultimately be stocked, into waters of the state where the general
7public is allowed, according to any applicable permits and certificates, and, if the
8private pond, private club, corporation, or preserve is a fish farm, the fish farm is
9registered with the department of agriculture, trade and consumer protection. If the
10private pond, private club, corporation, or preserve creates more fish from fish eggs
11provided under this paragraph than are required under its agreement with the
12department, the excess fish are not required to ultimately be stocked into waters of
13the state where the general public is allowed
29.707 of the statutes is created to read:
1529.707 Propagation of fish; department rules. (1)
The department shall 16
promulgate rules that do all of the following:
(a) Define the role and extent that genetics is involved in the department's fish 18