SB95: Bill Text

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 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. 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 navigable waterway.

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.

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 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 Lakes basin.

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 context.

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 limitations.

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:

SB95,1 Section 1. 29.705 (2) (a) of the statutes is amended to read:

SB95,5,13 29.705 (2) (a) The department may not furnish fish or fish eggs from state hatcheries to private ponds, private clubs, corporations, or preserves unless the private pond, private club, corporation, or preserve is located in this state and has entered into an agreement with the department and the fish or the fish grown from the fish eggs will ultimately be stocked, into waters of the state where the general public is allowed, according to any applicable permits and certificates, and, if the private pond, private club, corporation, or preserve is a fish farm, the fish farm is registered with the department of agriculture, trade and consumer protection. If the private pond, private club, corporation, or preserve creates more fish from fish eggs provided under this paragraph than are required under its agreement with the department, the excess fish are not required to ultimately be stocked into waters of the state where the general public is allowed.

SB95,2 Section 2. 29.707 of the statutes is created to read:

SB95,5,16 29.707 Propagation of fish; department rules. (1) The department shall promulgate rules that do all of the following:

SB95,5,18 (a) Define the role and extent that genetics is involved in the department's fish stocking strategies.

SB95,5,19 (b) Standardize the department's fish donation procedures.

SB95,6,4 (2) The department and the department of agriculture, trade and consumer protection shall review the departments' rules relating to viral hemorrhagic septicemia, and shall promulgate new rules as the departments determine are necessary.

SB95,6,9 (3) The department, with the department of agriculture, trade and consumer protection, shall assess the efficiency and utility of the fish hatchery classification system under rules promulgated by the department of agriculture, trade and consumer protection, and the department of agriculture, trade and consumer protection shall promulgate new rules as it determines are necessary.

SB95,6,13 (4) The department shall assess the viability and use of bait fish and forage fish and of the continued classification of bait fish and forage fish as established nonnative fish species, and shall promulgate new rules as it determines are necessary.

SB95,6,17 (5) The department shall consider economic factors, healthy fish populations, and fishing opportunities, and shall consult with interested parties, including fishing groups and the aquaculture industry, when promulgating rules under this section.

SB95,6,19 (6) The final draft of a proposed rule under this section shall be submitted under s. 227.19 (2) no later than June 28, 2019.

SB95,3 Section 3. 29.733 (1) of the statutes is renumbered 29.733 (1h).

SB95,4 Section 4. 29.733 (1d) of the statutes is created to read:

SB95,6,22 29.733 (1d) In this section:

SB95,6,23 (a) “Artificial water body" has the meaning given in s. 30.19 (1b) (a).

SB95,7,3 (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.

SB95,5 Section 5. 29.733 (1h) (c) 4. of the statutes is created to read:

SB95,7,10 29.733 (1h) (c) 4. An artificial water body that is used as a fish farm that is registered with the department of agriculture, trade and consumer protection on the effective date of this subdivision .... [LRB inserts date], or as part of a fish farm that is registered with the department of agriculture, trade and consumer protection on the effective date of this subdivision .... [LRB inserts date], regardless of its water source, including an artificial water body that is fed by a spring.

SB95,6 Section 6. 29.733 (2) (a) of the statutes is amended to read:

SB95,7,16 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.

SB95,7 Section 7. 29.733 (2) (b) of the statutes is amended to read:

SB95,7,22 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).

SB95,8 Section 8. 29.733 (2) (e) of the statutes is amended to read:

SB95,8,3 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.

SB95,9 Section 9. 29.733 (3) of the statutes is renumbered 29.733 (3) (intro.) and amended to read:

SB95,8,6 29.733 (3) (intro.) This section does not apply to a any of the following:

SB95,8,9 (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).

SB95,10 Section 10. 29.733 (3) (b) of the statutes is created to read:

SB95,8,14 29.733 (3) (b) A person who holds 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, raceways, ditches, canals, berms, swales, drains, pipes, and other structures, drainage areas, and flowage controls within the facility.

SB95,11 Section 11. 30.19 (1m) (bm) of the statutes is created to read:

SB95,8,19 30.19 (1m) (bm) The maintenance or repair of an artificial water body or fish farm that is registered with the department of agriculture, trade and consumer protection, except that this exemption does not apply to the requirement under sub. (1g) (c).

SB95,12 Section 12. 30.40 (1) of the statutes is amended to read:

SB95,8,24 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.

SB95,13 Section 13. 31.34 (3) (am) of the statutes is created to read:

SB95,9,5 31.34 (3) (am) A dam, in existence on the effective date of this paragraph .... [LRB inserts date], in a commercial fish farm, in existence and registered with the department of agriculture, trade and consumer protection on the effective date of this paragraph .... [LRB inserts date], and located in Langlade County, where the water is returned to the navigable stream.

SB95,14 Section 14. 77.52 (13) of the statutes is amended to read:

SB95,9,18 77.52 (13) For the purpose of the proper administration of this section and to prevent evasion of the sales tax it shall be presumed that all receipts are subject to the tax until the contrary is established. The burden of proving that a sale of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services is not a taxable sale at retail is upon the person who makes the sale unless that person takes from the purchaser an electronic or a paper certificate, in a manner prescribed by the department, to the effect that the property, item, good, or service is purchased for resale or is otherwise exempt, except that no certificate is required for the sale of tangible personal property, or items, property, or goods under sub. (1) (b), (c), or (d), or services that are exempt under s. 77.54 (5) (a) 3., (7), (7m), (8), (10), (11), (14), (15), (17), (20n), (21), (22b), (31), (32), (35), (36), (37), (42), (44), (45), (46), (51), and (52), and (64).

SB95,15 Section 15. 77.54 (64) of the statutes is created to read:

SB95,9,23 77.54 (64) The sales price from the sale of and the storage, use, or other consumption of farm-raised fish, as defined in s. 95.001 (1) (ah), sold to a fish farm, as defined in s. 95.001 (1) (aj), that is registered with the department of agriculture, trade and consumer protection, under s. 95.60 (3m), after January 1, 2012.

SB95,16 Section 16. 234.91 (1) (a) of the statutes is amended to read:

SB95,10,2 234.91 (1) (a) “Agricultural assets" means machinery, equipment, facilities, land or livestock used in agriculture or aquaculture.

SB95,17 Section 17. 234.91 (2) (b) of the statutes is amended to read:

SB95,10,7 234.91 (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.

SB95,18 Section 18. 281.346 (2) (bm) of the statutes is created to read:

SB95,10,14 281.346 (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 use of that water from that pond is not a withdrawal for the purposes of this section, if the subsequent use is not, and does not result in, a diversion or an intrabasin transfer.

SB95,19 Section 19. 281.36 (3g) (a) 7. of the statutes is amended to read:

SB95,10,18 281.36 (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.

SB95,20 Section 20. 281.36 (3n) (a) 1. b. of the statutes is amended to read:

SB95,10,22 281.36 (3n) (a) 1. b. 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.

SB95,21 Section 21. 281.36 (4) (am) of the statutes is created to read:

SB95,11,3 281.36 (4) (am) Normal aquaculture activities, if the discharge is to a wetland created for aquacultural purposes in an area without any prior wetland history. In this paragraph, “normal aquaculture activities” includes all of the following:

SB95,11,5 1. Construction, maintenance, or repair of ponds, raceways, or other similar retention structures used in fish farms.

SB95,11,7 2. The filling in or drawing down of ponds, raceways, or other similar retention structures used in fish farms.

SB95,11,9 3. Maintenance or improvement of swales or other drainage areas into or out of ponds used in fish farms.