SB632: Bill Text

LRB-4264/1

RCT:cjs:rs

2009 - 2010 LEGISLATURE

2009 Senate BILL 632

March 18, 2010 - Introduced by Senators Hansen, Miller, Sullivan, Taylor, Coggs and Risser, cosponsored by Representatives Black, Pasch, Sinicki, Berceau, Mason and Milroy. Referred to Committee on Environment.

SB632,1,7 An Act to renumber and amend 281.16 (4) and 823.08 (3) (c) 2.; to amend 23.50 (1), 23.65 (1), 92.05 (3) (k), 92.05 (3) (L), 92.07 (2), 92.14 (6) (i) 2., 92.15 (2), 92.15 (3) (a), 92.15 (4), 93.90 (2) (a), 281.16 (3) (e), 281.65 (4) (e), 281.65 (4c) (am) 1. a. and 823.08 (3) (c) 1.; and to create 92.04 (2) (m), 92.14 (3) (em), 281.16 (5), 281.163 and 823.08 (3) (c) 2. b. of the statutes; relating to: control of nonpoint source water pollution in certain areas with carbonate bedrock and granting rule-making authority.

Analysis by the Legislative Reference Bureau

Current law requires the Department of Natural Resources (DNR) and the Department of Agriculture, Trade and Consumer Protection (DATCP) to promulgate rules to limit nonpoint source water pollution, that is, water pollution from diffuse sources, such as construction sites and feedlots.

This bill requires DNR, in consultation with DATCP, to promulgate rules to limit pollution of groundwater caused by the spreading of any kind of waste, including animal waste, septage, sewage sludge, and industrial waste, on land (land spreading). Under the bill, the rules apply to certain areas with carbonate bedrock that are susceptible to groundwater contamination caused by land spreading and that are not sufficiently protected by the current rules concerning nonpoint source water pollution. The rules promulgated under this bill apply to susceptible areas in covered counties, which are Brown County, Calumet County, Door County, Kewaunee County, Manitowoc County, and any other county that opts to have them apply. The bill also requires DATCP to make its existing rules concerning nutrient management consistent with the new DNR rules concerning land spreading on susceptible lands in covered counties.

To identify the areas for which additional regulation of land spreading is potentially needed, the bill requires DNR to identify areas in this state that exhibit carbonate bedrock characteristics that may cause them to be susceptible to groundwater contamination from land spreading, including areas that have carbonate bedrock less than 50 feet from the surface of the land. The bill requires DNR to promulgate rules for ranking the land in potentially susceptible areas into categories according to relative vulnerability to groundwater contamination from land spreading, based on factors that include bedrock features and the depth and other characteristics of top soil, and to identify the categories for which additional regulation is needed.

The bill requires the county land conservation committee in a covered county to categorize the land in potentially susceptible areas (as identified by DNR) in the county according to the rules for ranking those lands. The bill provides a process for a land owner or other person, including DNR and DATCP, to obtain a review of a land conservation committee's categorization of land. The bill also requires DATCP to produce maps that show land that is categorized under this process, by category, and to post those maps on its Internet site.

The bill authorizes DNR to enforce the rules concerning land spreading on susceptible lands by issuing citations, which are similar to traffic tickets. A district attorney may also proceed against a person who violates the rules.

The rules promulgated by DNR and DATCP under current law to limit nonpoint source water pollution, as described above, do not apply to an agricultural facility or practice that was in existence before October 14, 1997, unless financial assistance is available to pay a portion of the cost of complying with the rules.

Under this bill, the current rules to limit nonpoint source water pollution apply to an agricultural facility or practice, in a covered county, that was in existence before October 14, 1997, without regard to whether financial assistance is available, if the facility or practice is on land categorized in a category with heightened vulnerability to groundwater contamination and is in an area with a level of groundwater contamination that may affect public health, as determined under rules promulgated by DNR.

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:

SB632, s. 1 Section 1. 23.50 (1) of the statutes is amended to read:

SB632,3,10 23.50 (1) The procedure in ss. 23.50 to 23.85 applies to all actions in circuit court to recover forfeitures, plus costs, fees, and surcharges imposed under ch. 814, for violations of ss. 77.09, 90.21, 134.60, 167.10 (3), 167.31 (2), 281.163 (5), 281.48 (2) to (5), 283.33, 285.57 (2), 285.59 (2), (3) (c) and (4), 287.07, 287.08, 287.81 and 299.64 (2), subch. VI of ch. 77, this chapter, and chs. 26 to 31, ch. 169, and ch. 350, and any administrative rules promulgated thereunder, violations specified under s. 280.98 (2) or 285.86, violations of ch. 951 if the animal involved is a captive wild animal, violations of rules of the Kickapoo reserve management board under s. 41.41 (7) (k), violations to which s. 299.85 (7) (a) 2. or 4. applies, or violations of local ordinances enacted by any local authority in accordance with s. 23.33 (11) (am) or 30.77.

SB632, s. 2 Section 2. 23.65 (1) of the statutes is amended to read:

SB632,3,18 23.65 (1) When it appears to the district attorney that a violation of s. 90.21, 134.60, 281.163 (5), 281.48 (2) to (5), 283.33, 285.57 (2), 285.59 (2), (3) (c) and (4), 287.07, 287.08, 287.81 or 299.64 (2), this chapter or ch. 26, 27, 28, 29, 30, 31, 169, or 350, or any administrative rule promulgated pursuant thereto, a violation specified under s. 285.86, or a violation of ch. 951, if the animal involved is a captive wild animal, has been committed the district attorney may proceed by complaint and summons.

SB632, s. 3 Section 3. 92.04 (2) (m) of the statutes is created to read:

SB632,3,24 92.04 (2) (m) Review of carbonate bedrock area determinations. The board shall review and affirm or reverse decisions of county land conservation committees under s. 281.163 (4) (b) when review is requested under s. 281.163 (4) (c). Under this paragraph, the board may conduct an informal hearing that is not a contested case under ch. 227.

SB632, s. 4 Section 4. 92.05 (3) (k) of the statutes is amended to read:

SB632,4,5 92.05 (3) (k) Nutrient management rules. The department shall promulgate rules to improve agricultural nutrient management in this state. The rules shall be consistent with rules promulgated under s. 281.16 (3) and, for lands to which the rules promulgated under s. 281.163 (5) (b) apply, with those rules and shall include incentives, educational and outreach provisions and compliance requirements.

SB632, s. 5 Section 5. 92.05 (3) (L) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

SB632,4,16 92.05 (3) (L) Technical assistance; performance standards. The department shall provide technical assistance to county land conservation committees and local units of government for the development of ordinances that implement standards adopted under s. 92.07 (2), 92.15 (2) or (3) or 281.16 (3) and, for lands to which the rules promulgated under s. 281.163 (5) (b) apply, that implement the standards in those rules. The department's technical assistance shall include preparing model ordinances, providing data concerning the standards and reviewing draft ordinances to determine whether the draft ordinances comply with applicable statutes and rules.

SB632, s. 6 Section 6. 92.07 (2) of the statutes is amended to read:

SB632,5,8 92.07 (2) Standards. Each land conservation committee may develop and adopt standards and specifications for management practices to control erosion, sedimentation and nonpoint source water pollution. The standards and specifications for agricultural facilities and practices that are constructed or begun on or after October 14, 1997, and, if cost-sharing is available to the owner or operator under s. 92.14 or 281.65 or from any other source or if, as determined under s. 281.16 (5) (b), the agricultural facilities or practices are located on land that is categorized under s. 281.163 (4) in a category with heightened vulnerability to groundwater contamination and the land is in an area with characteristics that indicate a level of groundwater contamination that affects public health, for agricultural facilities and practices that are constructed or begun before that date shall be consistent with the performance standards, prohibitions, conservation practices and technical standards under s. 281.16 (3) and, for agricultural facilities and practices on lands to which the rules promulgated under s. 281.163 (5) (b) apply, with those rules. The land conservation committee shall use the rules promulgated under s. 281.16 (3) (e) to determine whether cost-sharing is available.

SB632, s. 7 Section 7. 92.14 (3) (em) of the statutes is created to read:

SB632,5,12 92.14 (3) (em) Grants to farmers for implementing land and water resource management projects on lands categorized under s. 281.163 (4) undertaken to comply with the requirements under s. 281.163 (5) (b).

SB632, s. 8 Section 8. 92.14 (6) (i) 2. of the statutes is amended to read:

SB632,5,18 92.14 (6) (i) 2. Conduct all land management and pollutant management activities in substantial accordance with the performance standards, prohibitions, conservation practices and technical standards under s. 281.16 and, if applicable, under s. 281.163 (5) (b) and with plans approved under this section, under s. 92.15, 1985 stats., and under ss. 92.10 and 281.65, or to repay the cost-sharing funds.

SB632, s. 9 Section 9. 92.15 (2) of the statutes is amended to read:

SB632,5,25 92.15 (2) Notwithstanding ss. 92.11 and 92.17, a local governmental unit may enact regulations of livestock operations that are consistent with and do not exceed the performance standards, prohibitions, conservation practices and technical standards under s. 281.16 (3) and, for livestock operations on lands to which the rules promulgated under s. 281.163 (5) (b) apply, the prohibitions and performance standards in those rules.

SB632, s. 10 Section 10. 92.15 (3) (a) of the statutes is amended to read:

SB632,6,10 92.15 (3) (a) Notwithstanding ss. 92.11 and 92.17, a local governmental unit may enact regulations of livestock operations that exceed the performance standards, prohibitions, conservation practices and technical standards under s. 281.16 (3) and, for livestock operations on lands to which the rules promulgated under s. 281.163 (5) (b) apply, the prohibitions and performance standards in those rules only if the local governmental unit demonstrates to the satisfaction of the department of agriculture, trade and consumer protection or the department of natural resources that the regulations are necessary to achieve water quality standards under s. 281.15.

SB632, s. 11 Section 11. 92.15 (4) of the statutes is amended to read:

SB632,6,20 92.15 (4) A local governmental unit may not apply a regulation under sub. (2) or (3) to a livestock operation that exists on October 14, 1997, unless the local governmental unit determines, using the rules promulgated under s. 281.16 (3) (e), that cost-sharing is available to the owner or operator of the livestock operation under s. 92.14 or 281.65 or from any other source or, as determined under s. 281.16 (5) (b), the livestock operation is located on land that is categorized under s. 281.163 (4) in a category with heightened vulnerability to groundwater contamination and the land is in an area with characteristics that indicate a level of groundwater contamination that affects public health.

SB632, s. 12 Section 12. 93.90 (2) (a) of the statutes is amended to read:

SB632,7,5 93.90 (2) (a) For the purposes of this section, the department shall promulgate rules specifying standards for siting and expanding livestock facilities. In promulgating the rules, the department may incorporate by cross-reference provisions contained in rules promulgated under ss. 92.05 (3) (c) and (k), 92.14 (8), 92.16, and 281.16 (3) and ch. 283 and, for lands to which the rules promulgated under s. 281.163 (5) (b) apply, in those rules. The department may not promulgate rules under this paragraph that conflict with rules promulgated under s. 92.05 (3) (c) or (k), 92.14 (8), 92.16, or 281.16 (3) or ch. 283 or, for lands to which the rules promulgated under s. 281.163 (5) (b) apply, with those rules.

SB632, s. 13 Section 13. 281.16 (3) (e) of the statutes, as affected by 2009 Wisconsin Act 28, is amended to read:

SB632,7,24 281.16 (3) (e) An Except as provided in sub. (5) (a), an owner or operator of an agricultural facility or practice that is in existence before October 14, 1997, may not be required by this state or a municipality to comply with the performance standards, prohibitions, conservation practices or technical standards under this subsection unless cost-sharing is available, under s. 92.14 or 281.65 or from any other source, to the owner or operator. For the purposes of this paragraph, sub. (4) (b) and ss. 92.07 (2), 92.15 (4) and 823.08 (3) (c) 2., the department of natural resources shall promulgate rules that specify criteria for determining whether cost-sharing is available under s. 281.65 and the department of agriculture, trade and consumer protection shall promulgate rules that specify criteria for determining whether cost-sharing is available under s. 92.14 or from any other source. The rules may not allow a determination that cost-sharing is available to meet local regulations under s. 92.07 (2) or 92.15 that are consistent with or that exceed the performance standards, prohibitions, conservation practices or technical standards under this subsection unless the cost-sharing is at least 70% of the cost of compliance or is from 70% to 90% of the cost of compliance in cases of economic hardship, as defined in the rules.

SB632, s. 14 Section 14. 281.16 (4) of the statutes is renumbered 281.16 (4) (a) and amended to read:

SB632,8,6 281.16 (4) (a) If the department issues a notice of discharge under ch. 283 for an animal feeding operation, the performance standards, prohibitions, conservation practices and technical standards under sub. (3) apply to the animal feeding operation, except that if the as provided in par. (b).

SB632,8,12 (b) If an animal feeding operation for which the department of natural resources issues a notice of discharge under ch. 283 is in existence before October 14, 1997, the performance standards, prohibitions, conservation practices and technical standards only apply if the department determines that cost-sharing is available to the owner or operator of the animal feeding operation under s. 92.14 or 281.65 or from any other source, except as provided in sub. (5) (a).

SB632, s. 15 Section 15. 281.16 (5) of the statutes is created to read:

SB632,8,19 281.16 (5) Application in carbonate bedrock areas. (a) Subsections (3) (e) and (4) (b) do not apply to an agricultural facility or practice or animal feeding operation that is located on land that is categorized under s. 281.163 (4) in a category with heightened vulnerability to groundwater contamination if the land is in an area with characteristics that indicate a level of groundwater contamination that affects public health.

SB632,8,21 (b) The department shall promulgate rules that do all of the following for the purposes of par. (a) and ss. 92.07 (2), 92.15 (4), and 823.08 (3) (c):

SB632,8,23 1. Designate the categories under s. 281.163 (3) (a) that have heightened vulnerability to groundwater contamination.