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
Forestry.
SB493,1,8
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),
330.40 (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.
8e. 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:
SB493,1
1Section
1. 29.733 (1) of the statutes is renumbered 29.733 (1h).
SB493,2
2Section
2. 29.733 (1d) of the statutes is created to read:
SB493,4,33
29.733
(1d) In this section:
SB493,4,44
(a) "Artificial water body" has the meaning given in s. 30.19 (1b) (a).
SB493,5,3
1(b) "Natural body of water" means a spring, stream, pond, lake, or wetland that
2was historically present in a natural state but may have been physically altered over
3time.
SB493,3
4Section
3. 29.733 (1h) (c) 4. of the statutes is created to read:
SB493,5,65
29.733
(1h) (c) 4. A spring that provides water to an artificial water body that
6is used as a fish farm or as part of a fish farm.
SB493,4
7Section
4. 29.733 (2) (a) of the statutes is amended to read:
SB493,5,128
29.733
(2) (a) The department, subject to s. 29.024 (2g) and (2r), shall issue a
9permit under this subsection for a natural body of water specified under sub.
(1) (1h) 10(c) 1. if the department determines that no substantial public interest exists in the
11body of water and that no public or private rights in the body of water will be
12damaged.
SB493,5
13Section
5. 29.733 (2) (b) of the statutes is amended to read:
SB493,5,1814
29.733
(2) (b) Notwithstanding par. (a), for a freeze-out pond that is licensed
15as a private fish hatchery, or as part of a private fish hatchery, under s. 29.52, 1995
16stats., on January 1, 1998, or for a natural body of water as described under sub.
(1) 17(1h) (c) 2., the department shall issue an initial permit without making the
18determination under par. (a).
SB493,6
19Section
6. 29.733 (2) (e) of the statutes is amended to read:
SB493,5,2420
29.733
(2) (e) The department may suspend a permit for a body of water
21specified in sub.
(1) (1h) (c) 2. for 90 days if the department finds that the permit
22holder has failed to adequately maintain the fish barriers and may revoke the permit
23if the department determines that the failure to adequately maintain the barriers
24has not been corrected within the 90-day period.
SB493,7
1Section
7. 29.733 (3) of the statutes is renumbered 29.733 (3) (intro.) and
2amended to read:
SB493,6,33
29.733
(3) (intro.) This section does not apply to
a any of the following:
SB493,6,6
4(a) A person who places a net pen in a natural body of water for the purpose of
5holding or rearing fish in accordance with a general permit issued under s. 30.12 (3)
6(b).
SB493,8
7Section
8. 29.733 (3) (b) of the statutes is created to read:
SB493,6,118
29.733
(3) (b) A person who previously held a permit under sub. (2) and who
9takes no action in the natural body of water other than maintaining the fish farm
10facility, including maintaining ponds, ditches, canals, berms, and other structures
11within the facility.
SB493,9
12Section
9. 30.19 (1m) (b) of the statutes is amended to read:
SB493,6,1313
30.19
(1m) (b) Any agricultural
or aquacultural use of land.
SB493,10
14Section
10. 30.40 (1) of the statutes is amended to read:
SB493,6,1815
30.40
(1) "Agricultural use" means
aquaculture; beekeeping; dairying; egg
16production; feedlots; grazing; floriculture; raising of livestock; raising of poultry;
17raising of fruits, nuts and berries; raising of grains, grass, mint and seed crops;
18raising of vegetables; and sod farming.
SB493,11
19Section
11. 31.34 (3) (am) of the statutes is created to read:
SB493,6,2120
31.34
(3) (am) A dam in a fish farm where the water is returned to the navigable
21stream.
SB493,12
22Section
12. 234.91 (1) (a) of the statutes is amended to read:
SB493,6,2423
234.91
(1) (a) "Agricultural assets" means machinery, equipment, facilities,
24land or livestock
used in agriculture or aquaculture.
SB493,13
25Section
13. 234.91 (2) (b) of the statutes is amended to read:
SB493,7,4
1234.91
(2) (b) The loan is made to finance the acquisition of agricultural assets
2or the cost of improvements to facilities or land. The agricultural assets must be
3acquired, and the improvements must be made, for agricultural
or aquacultural 4purposes.
SB493,14
5Section
14. 281.16 (1) (b) of the statutes is amended to read:
SB493,7,126
281.16
(1) (b) "Agricultural practice" means
aquaculture; beekeeping;
7commercial feedlots; dairying; egg production; floriculture; fish or fur farming;
8grazing; livestock raising; orchards; poultry raising; raising of grain, grass, mint and
9seed crops; raising of fruits, nuts and berries; sod farming; placing land in federal
10programs in return for payments in kind; owning land, at least 35 acres of which is
11enrolled in the conservation reserve program under
16 USC 3831 to
3836; and
12vegetable raising.
SB493,15
13Section
15. 281.346 (2) (bm) of the statutes is created to read:
SB493,7,1814
281.346
(2) (bm)
Subsequent withdrawals for aquacultural purposes. If a fish
15farm withdraws water and places it in an aquacultural pond that is registered with
16the department of agriculture, trade and consumer protection, any subsequent
17withdrawal of that water from that pond is not a withdrawal for the purposes of this
18section.
SB493,16
19Section
16. 281.36 (3g) (a) 7. of the statutes is amended to read:
SB493,7,2220
281.36
(3g) (a) 7. A discharge that is part of a development for agricultural
or
21aquacultural purposes, if the discharge does not affect more than 10,000 square feet
22of wetland.
SB493,17
23Section
17. 281.36 (3m) (b) of the statutes is renumbered 281.36 (3m) (b) 1.
24and amended to read:
SB493,8,5
1281.36
(3m) (b) 1.
An Subject to subd. 2., an applicant shall include in an
2application submitted under par. (a) an analysis of the practicable alternatives that
3will avoid and minimize the adverse impacts of the discharge on wetland functional
4values and that will not result in any other significant adverse environmental
5consequences.
SB493,18
6Section
18. 281.36 (3m) (b) 2. of the statutes is created to read:
SB493,8,97
281.36
(3m) (b) 2. If an application submitted under par. (a) is for a permit
8authorizing a discharge from a fish farm, the applicant is not required to provide an
9analysis of practicable alternatives.
SB493,19
10Section
19. 281.36 (3n) (a) of the statutes is amended to read:
SB493,8,2311
281.36
(3n) (a)
Review limits. For the purpose of issuing a wetland individual
12permit, during the period between the date on which the application under sub. (3m)
13(a) is submitted and the date on which a decision under sub. (3m) (i) is rendered, the
14department shall conduct its review under this subsection. The department shall
15review the analysis of practicable alternatives presented in the application under
16sub. (3m) (b). The department shall limit its review to those practicable alternatives
17that are located at the site of the discharge and that are located adjacent to that site
18if the applicant has demonstrated that the proposed project causing the discharge
19will result in a demonstrable economic public benefit, that the proposed project is
20necessary for the expansion of an existing industrial, commercial,
or agricultural
, or
21aquacultural facility that is in existence at the time the application is submitted, or
22that the proposed project will occur in an industrial park that is in existence at the
23time the application is submitted.
SB493,20
24Section
20. 281.36 (3n) (bm) of the statutes is created to read:
SB493,9,5
1281.36
(3n) (bm) If, in determining whether to issue a wetland individual
2permit under sub. (3m) or under rules promulgated by the department to implement
333 USC 1341 (a), the department considers whether proposed activities are water or
4wetland dependent, the department shall consider the activities of constructing and
5operating a fish farm to be water or wetland dependent.
SB493,21
6Section
21. 281.36 (3r) (bm) of the statutes is created to read:
SB493,9,107
281.36
(3r) (bm) Under the mitigation program, in determining whether
8mitigation as specified in par. (a) 3. has been accomplished by a fish farm, the
9department shall consider wetlands created in the ordinary course of the facility's
10operation.
SB493,22
11Section
22. 281.36 (4) (am) of the statutes is created to read:
SB493,9,1312
281.36
(4) (am) Normal aquaculture activities, if the discharge is to a wetland
13created for aquacultural purposes.