AB640: Bill Text

2015 Assembly BILL 640

January 7, 2016 - Introduced by Representatives Czaja, Brandtjen, Horlacher, Jarchow, T. Larson and Murphy, cosponsored by Senators Tiffany and Gudex. Referred to Committee on Environment and Forestry.

AB640,1,8 An Act to renumber 29.733 (1); to renumber and amend 29.733 (3) and 281.36 (3m) (b); to amend 29.733 (2) (a), 29.733 (2) (b), 29.733 (2) (e), 30.19 (1m) (b), 30.40 (1), 234.91 (1) (a), 234.91 (2) (b), 281.16 (1) (b), 281.36 (3g) (a) 7., 281.36 (3n) (a), 281.36 (4) (c), 281.36 (4) (e) (intro.), 283.31 (3) (intro.), 283.31 (4) (intro.), 283.31 (5m) and 348.27 (18) (c); and to create 29.733 (1d), 29.733 (1h) (c) 4., 29.733 (3) (b), 31.34 (3) (am), 281.346 (2) (bm), 281.36 (3m) (b) 2., 281.36 (3n) (bm), 281.36 (3r) (bm), 281.36 (4) (am), 283.15 (4m) and 348.27 (18) (a) 1. e. of the statutes; relating to: regulation of aquaculture and fish farms.

Analysis by the Legislative Reference Bureau

This bill makes various changes to the regulation of aquaculture and fish farms.

Wetland permits

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 (DNR). 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, if the discharge is to a wetland that has been created for aquacultural purposes, and the construction or maintenance of ponds or roads used in fish farms from the requirement to obtain an individual or general wetland permit.

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. The bill creates an exemption to this requirement if the application is for a permit authorizing a discharge from a fish farm.

Current law specifies that DNR must require wetland mitigation for each wetland individual permit that it issues. A person may conduct wetland mitigation by the use of various methods, including purchasing credits from a mitigation bank or completing mitigation within the same watershed or within one-half mile of the site of the discharge. This bill requires DNR to consider wetlands created in the ordinary course of a fish farm's operation when determining whether the facility has completed wetland mitigation within the same watershed or within one-half mile of the site of the discharge.

The bill also provides that, if DNR considers whether proposed activities are water or wetland dependent when determining whether to issue a wetland individual permit, DNR must regard a fish farm's activities as water or wetland dependent.

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 a spring that provides water to an artificial water body that is used as a fish farm. 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 previously held 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.

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 a dam in a fish farm where the water is returned to the navigable stream.

WPDES permits

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 requires DNR to include the federal requirements in all WPDES permits issued to fish farms. The bill also prohibits DNR from including additional conditions in a permit issued to a 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 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 (EPA). 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 (DATCP), any subsequent withdrawal of that water from that pond is not a "withdrawal" for purposes of the Great Lakes Compact. 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 Lakes basin.

Cost-sharing exemption from nonpoint performance standards

Current law requires DNR to promulgate rules setting performance standards for sources of nonpoint water pollution, which is water pollution from diffuse sources. Under current law, the owner or operator of an agricultural facility or practice that existed before October 14, 1997, is exempt from complying with these nonpoint performance standards unless cost-sharing is available to the owner or operator under the soil and water resource management program administered by DATCP or the nonpoint source pollution abatement financial assistance program administered by DNR. This bill adds aquaculture to the list of activities that make up "agricultural practice" and that are associated with an "agricultural facility" in this context.

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 context.

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.

Navigable water permits

This bill also exempts aquacultural uses of land 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, or to grade or remove more than 10,000 square feet of topsoil from the bank of a navigable waterway.

Transportation of agricultural products

Finally, this bill allows the Department of Transportation to issue permits for the transportation of fish and minnows in vehicles that exceed certain weight limitations.

For further information see the state 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:

AB640,1 Section 1. 29.733 (1) of the statutes is renumbered 29.733 (1h).

AB640,2 Section 2. 29.733 (1d) of the statutes is created to read:

AB640,4,3 29.733 (1d) In this section:

AB640,4,4 (a) "Artificial water body" has the meaning given in s. 30.19 (1b) (a).

AB640,5,3 (b) "Natural body of water" means a spring, stream, pond, lake, or wetland that was historically present in a natural state but may have been physically altered over time.

AB640,3 Section 3. 29.733 (1h) (c) 4. of the statutes is created to read:

AB640,5,6 29.733 (1h) (c) 4. A spring that provides water to an artificial water body that is used as a fish farm or as part of a fish farm.

AB640,4 Section 4. 29.733 (2) (a) of the statutes is amended to read:

AB640,5,12 29.733 (2) (a) The department, subject to s. 29.024 (2g) and (2r), shall issue a permit under this subsection for a natural body of water specified under sub. (1) (1h) (c) 1. if the department determines that no substantial public interest exists in the body of water and that no public or private rights in the body of water will be damaged.

AB640,5 Section 5. 29.733 (2) (b) of the statutes is amended to read:

AB640,5,18 29.733 (2) (b) Notwithstanding par. (a), for a freeze-out pond that is licensed as a private fish hatchery, or as part of a private fish hatchery, under s. 29.52, 1995 stats., on January 1, 1998, or for a natural body of water as described under sub. (1) (1h) (c) 2., the department shall issue an initial permit without making the determination under par. (a).

AB640,6 Section 6. 29.733 (2) (e) of the statutes is amended to read:

AB640,5,24 29.733 (2) (e) The department may suspend a permit for a body of water specified in sub. (1) (1h) (c) 2. for 90 days if the department finds that the permit holder has failed to adequately maintain the fish barriers and may revoke the permit if the department determines that the failure to adequately maintain the barriers has not been corrected within the 90-day period.

AB640,7 Section 7. 29.733 (3) of the statutes is renumbered 29.733 (3) (intro.) and amended to read:

AB640,6,3 29.733 (3) (intro.) This section does not apply to a any of the following:

AB640,6,6 (a) A person who places a net pen in a natural body of water for the purpose of holding or rearing fish in accordance with a general permit issued under s. 30.12 (3) (b).

AB640,8 Section 8. 29.733 (3) (b) of the statutes is created to read:

AB640,6,11 29.733 (3) (b) A person who previously held a permit under sub. (2) and who takes no action in the natural body of water other than maintaining the fish farm facility, including maintaining ponds, ditches, canals, berms, and other structures within the facility.

AB640,9 Section 9. 30.19 (1m) (b) of the statutes is amended to read:

AB640,6,13 30.19 (1m) (b) Any agricultural or aquacultural use of land.

AB640,10 Section 10. 30.40 (1) of the statutes is amended to read:

AB640,6,18 30.40 (1) "Agricultural use" means aquaculture; beekeeping; dairying; egg production; feedlots; grazing; floriculture; raising of livestock; raising of poultry; raising of fruits, nuts and berries; raising of grains, grass, mint and seed crops; raising of vegetables; and sod farming.

AB640,11 Section 11. 31.34 (3) (am) of the statutes is created to read:

AB640,6,21 31.34 (3) (am) A dam in a fish farm where the water is returned to the navigable stream.

AB640,12 Section 12. 234.91 (1) (a) of the statutes is amended to read:

AB640,6,24 234.91 (1) (a) "Agricultural assets" means machinery, equipment, facilities, land or livestock used in agriculture or aquaculture.

AB640,13 Section 13. 234.91 (2) (b) of the statutes is amended to read:

AB640,7,4 234.91 (2) (b) The loan is made to finance the acquisition of agricultural assets or the cost of improvements to facilities or land. The agricultural assets must be acquired, and the improvements must be made, for agricultural or aquacultural purposes.

AB640,14 Section 14. 281.16 (1) (b) of the statutes is amended to read:

AB640,7,12 281.16 (1) (b) "Agricultural practice" means aquaculture; beekeeping; commercial feedlots; dairying; egg production; floriculture; fish or fur farming; grazing; livestock raising; orchards; poultry raising; raising of grain, grass, mint and seed crops; raising of fruits, nuts and berries; sod farming; placing land in federal programs in return for payments in kind; owning land, at least 35 acres of which is enrolled in the conservation reserve program under 16 USC 3831 to 3836; and vegetable raising.

AB640,15 Section 15. 281.346 (2) (bm) of the statutes is created to read:

AB640,7,18 281.346 (2) (bm) Subsequent withdrawals for aquacultural purposes. 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 withdrawal of that water from that pond is not a withdrawal for the purposes of this section.

AB640,16 Section 16. 281.36 (3g) (a) 7. of the statutes is amended to read:

AB640,7,22 281.36 (3g) (a) 7. A discharge that is part of a development for agricultural or aquacultural purposes, if the discharge does not affect more than 10,000 square feet of wetland.

AB640,17 Section 17. 281.36 (3m) (b) of the statutes is renumbered 281.36 (3m) (b) 1. and amended to read:

AB640,8,5 281.36 (3m) (b) 1. An Subject to subd. 2., an applicant shall include in an application submitted under par. (a) an analysis of the practicable alternatives that will avoid and minimize the adverse impacts of the discharge on wetland functional values and that will not result in any other significant adverse environmental consequences.

AB640,18 Section 18. 281.36 (3m) (b) 2. of the statutes is created to read:

AB640,8,9 281.36 (3m) (b) 2. If an application submitted under par. (a) is for a permit authorizing a discharge from a fish farm, the applicant is not required to provide an analysis of practicable alternatives.

AB640,19 Section 19. 281.36 (3n) (a) of the statutes is amended to read:

AB640,8,23 281.36 (3n) (a) Review limits. For the purpose of issuing a wetland individual permit, during the period between the date on which the application under sub. (3m) (a) is submitted and the date on which a decision under sub. (3m) (i) is rendered, the department shall conduct its review under this subsection. The department shall review the analysis of practicable alternatives presented in the application under sub. (3m) (b). The department shall limit its review to those practicable alternatives that are located at the site of the discharge and that are located adjacent to that site if the applicant has demonstrated that the proposed project causing the discharge will result in a demonstrable economic public benefit, that the proposed project is necessary for the expansion of an existing industrial, commercial, or agricultural, or aquacultural facility that is in existence at the time the application is submitted, or that the proposed project will occur in an industrial park that is in existence at the time the application is submitted.

AB640,20 Section 20. 281.36 (3n) (bm) of the statutes is created to read:

AB640,9,5 281.36 (3n) (bm) If, in determining whether to issue a wetland individual permit under sub. (3m) or under rules promulgated by the department to implement 33 USC 1341 (a), the department considers whether proposed activities are water or wetland dependent, the department shall consider the activities of constructing and operating a fish farm to be water or wetland dependent.

AB640,21 Section 21. 281.36 (3r) (bm) of the statutes is created to read:

AB640,9,10 281.36 (3r) (bm) Under the mitigation program, in determining whether mitigation as specified in par. (a) 3. has been accomplished by a fish farm, the department shall consider wetlands created in the ordinary course of the facility's operation.

AB640,22 Section 22. 281.36 (4) (am) of the statutes is created to read:

AB640,9,13 281.36 (4) (am) Normal aquaculture activities, if the discharge is to a wetland created for aquacultural purposes.