2015 - 2016 LEGISLATURE
January 4, 2016 - Introduced by Senators Tiffany and Gudex, cosponsored by
Representatives Czaja, Horlacher, Murphy, Jarchow, T. Larson and
Brandtjen. Referred to Committee on Sporting Heritage, Mining, and
1An Act to renumber
29.733 (1); to renumber and amend
29.733 (3) and 281.36 2
(3m) (b); to amend
29.733 (2) (a), 29.733 (2) (b), 29.733 (2) (e), 30.19 (1m) (b), 3
30.40 (1), 234.91 (1) (a), 234.91 (2) (b), 281.16 (1) (b), 281.36 (3g) (a) 7., 281.36 4
(3n) (a), 281.36 (4) (c), 281.36 (4) (e) (intro.), 283.31 (3) (intro.), 283.31 (4) 5
(intro.), 283.31 (5m) and 348.27 (18) (c); and to create
29.733 (1d), 29.733 (1h) 6
(c) 4., 29.733 (3) (b), 31.34 (3) (am), 281.346 (2) (bm), 281.36 (3m) (b) 2., 281.36 7
(3n) (bm), 281.36 (3r) (bm), 281.36 (4) (am), 283.15 (4m) and 348.27 (18) (a) 1. 8
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.
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
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.
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
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
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
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:
29.733 (1) of the statutes is renumbered 29.733 (1h).
29.733 (1d) of the statutes is created to read:
In this section:
(a) "Artificial water body" has the meaning given in s. 30.19 (1b) (a).
(b) "Natural body of water" means a spring, stream, pond, lake, or wetland that 2
was historically present in a natural state but may have been physically altered over 3
29.733 (1h) (c) 4. of the statutes is created to read:
(c) 4. A spring that provides water to an artificial water body that 6
is used as a fish farm or as part of a fish farm.
29.733 (2) (a) of the statutes is amended to read: