Amendment ASA1-AB226

LRBs0080/2

MCP:kjf

2017 - 2018 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 226

June 21, 2017 - Offered by Representatives Mason, Anderson, Hebl, Barca, Bowen, Brostoff, Crowley, Genrich, Hesselbein, Kessler, Meyers, Ohnstad, Pope, Sargent, Sinicki, Spreitzer, Subeck, Vruwink and Zamarripa.

AB226-ASA1,1,10 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., 281.75 (7) (a) and 823.08 (3) (c) 1.; and to create 20.370 (4) (ad), 66.0626, 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, local assistance for remediating contaminated wells and failing wastewater treatment systems and award limits for contaminated well grants, granting rule-making authority, making an appropriation, and providing a penalty.

Analysis by the Legislative Reference Bureau

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

This substitute amendment requires DNR, in consultation with DATCP, to promulgate rules to limit pollution of groundwater caused by the spreading of waste on land, including animal waste, septage, sewage sludge, and industrial waste (land spreading). Under the substitute amendment, 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 substitute amendment also requires DATCP to make its existing rules concerning nutrient management consistent with the new DNR rules concerning land spreading on susceptible lands.

To identify the areas for which additional regulation of land spreading is potentially needed, the substitute amendment 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 substitute amendment 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 substitute amendment requires the county land conservation committee in a county in which a potentially susceptible area is located to categorize the land in potentially susceptible areas (as identified by DNR) in the county according to the rules for ranking those lands. The substitute amendment provides a process for a landowner or other person, including DNR or DATCP, to obtain a review of a land conservation committee's categorization of land. The substitute amendment 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 substitute amendment 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 substitute amendment, the rules to limit nonpoint source water pollution apply to an agricultural facility or practice, in a county in which a potentially susceptible area is located, 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 that has 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.

This substitute amendment also provides that a city, village, town, or county may remediate a contaminated private well, fill and seal a contaminated well, or rehabilitate, replace, or abandon a failing private on-site wastewater treatment system, in agreement with the owner of the well or wastewater treatment system, or may make a low-interest or interest-free loan to the owner of a contaminated well or failing wastewater treatment system for these purposes. Under the substitute amendment, if a political subdivision takes any of these actions or provides a loan for these purposes, the political subdivision may recover the costs of the action or collect the loan repayment as a special charge or special assessment.

This substitute amendment also increases the limit on the amount of a grant awarded under this state's well compensation grant program. Under current law, an individual owner or renter of a contaminated private well may apply for a grant from DNR to cover a portion of the costs to treat the water, reconstruct the well, construct a new well, connect to a public water supply, or fill and seal (abandon) the well. A grant awarded under the program may not exceed 75 percent of a project's eligible costs and may not cover any part of a project's eligible costs that exceeds $12,000, which means that a grant may not exceed $9,000. This substitute amendment increases the grant award limit to 75 percent of $16,000, which means that a grant under the substitute amendment may not exceed $12,000.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB226-ASA1,1 Section 1. 20.370 (4) (ad) of the statutes is created to read:

AB226-ASA1,3,4 20.370 (4) (ad) Water resources - groundwater; Door and Kewaunee counties. From the general fund, a sum sufficient for staff salaries to enforce and administer the environmental provisions under ch. 160 in Door County and Kewaunee County.

AB226-ASA1,2 Section 2 . 23.50 (1) of the statutes is amended to read:

AB226-ASA1,4,3 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 s. 281.36 if the department chooses to proceed under s. 281.36 (14) (f), 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), 23.335 (21) (a), or 30.77.

AB226-ASA1,3 Section 3 . 23.65 (1) of the statutes is amended to read:

AB226-ASA1,4,11 23.65 (1) When it appears to the district attorney that a violation of s. 90.21, 134.60, 281.163 (5), 281.36, 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.

AB226-ASA1,4 Section 4 . 66.0626 of the statutes is created to read:

AB226-ASA1,4,14 66.0626 Special assessments or charges for contaminated well or wastewater system loans. (1) In this section:

AB226-ASA1,4,16 (a) “Contaminated private water supply” has the meaning provided in s. 281.75 (1) (b).

AB226-ASA1,4,18 (b) “Failing private on-site wastewater treatment system" has the meaning provided in s. 145.245 (4).

AB226-ASA1,4,19 (c) “Political subdivision" means a city, village, town, or county.

AB226-ASA1,4,21 (d) “Private on-site wastewater treatment system" has the meaning provided in s. 145.01 (12).

AB226-ASA1,4,22 (e) “Private water supply” has the meaning provided in s. 281.75 (1) (f).

AB226-ASA1,4,23 (f) “Well subject to abandonment” has the meaning provided in s. 281.75 (1) (i).

AB226-ASA1,5,14 (2) A political subdivision or its designee may, with the agreement of the owner of the private water supply, well, or wastewater treatment system, remediate a contaminated private water supply, fill and seal a well subject to abandonment, or rehabilitate, replace, or abandon a failing private on-site wastewater treatment system, that is located in the political subdivision, or may make a loan at or below the market interest rate, as defined in s. 281.59 (1) (b), including an interest-free loan, to the owner of a contaminated private water supply, a well subject to abandonment, or a failing private on-site wastewater treatment system, that is located in the political subdivision, for those purposes. If a political subdivision takes any of the actions under this subsection, the political subdivision may, as a special charge under s. 66.0627 or special assessment under s. 66.0703, recover the costs of the remediation, the filling and sealing, or the rehabilitation, replacement, or abandonment, or collect the loan repayment. Notwithstanding s. 66.0627 (4), a special charge imposed under this subsection may be collected in installments and may be included in the current or next tax roll for collection and settlement under ch. 74 even if the special charge is not delinquent.

AB226-ASA1,5 Section 5. 92.04 (2) (m) of the statutes is created to read:

AB226-ASA1,5,20 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.

AB226-ASA1,6 Section 6. 92.05 (3) (k) of the statutes is amended to read:

AB226-ASA1,6,2 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 categorized under s. 281.163 (4) in categories identified under s. 281.163 (5) (a), with rules promulgated under s. 281.163 (5) (b) and shall include incentives, educational and outreach provisions and compliance requirements.

AB226-ASA1,7 Section 7. 92.05 (3) (L) of the statutes is amended to read:

AB226-ASA1,6,12 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 categorized under s. 281.163 (4) in categories identified under s. 281.163 (5) (a), that implement standards adopted under s. 281.163 (5) (b). 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.

AB226-ASA1,8 Section 8. 92.07 (2) of the statutes is amended to read:

AB226-ASA1,7,9 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, 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 land categorized under s. 281.163 (4) in a category identified under s. 281.163 (5) (a), with the performance standards and prohibitions under s. 281.163 (5) (b). The land conservation committee shall use the rules promulgated under s. 281.16 (3) (e) to determine whether cost-sharing is available. The standards and specifications for agricultural facilities or practices that are located on land that is categorized under s. 281.163 (4) in a category designated under s. 281.16 (5) (b) 1. as having heightened vulnerability to groundwater contamination and is in an area with characteristics specified under s. 281.16 (5) (b) 2. that indicate a level of groundwater contamination that affects public health shall be consistent with the performance standards, prohibitions, conservation practices, and technical standards under s. 281.16 (3) and with the performance standards and prohibitions under s. 281.163 (5) (b), without regard to when the agricultural facilities or practices are constructed or begun.

AB226-ASA1,9 Section 9. 92.14 (3) (em) of the statutes is created to read:

AB226-ASA1,7,13 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).

AB226-ASA1,10 Section 10. 92.14 (6) (i) 2. of the statutes is amended to read:

AB226-ASA1,7,19 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.

AB226-ASA1,11 Section 11. 92.15 (2) of the statutes is amended to read:

AB226-ASA1,8,2 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 categorized under s. 281.163 (4) in categories identified under s. 281.163 (5) (a), the prohibitions and performance standards under s. 281.163 (5) (b).

AB226-ASA1,12 Section 12. 92.15 (3) (a) of the statutes is amended to read:

AB226-ASA1,8,12 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 land categorized under s. 281.163 (4) in categories identified under s. 281.163 (5) (a), the prohibitions and performance standards under s. 281.163 (5) (b) 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.

AB226-ASA1,13 Section 13. 92.15 (4) of the statutes is amended to read:

AB226-ASA1,8,22 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 the livestock operation is located on land that is categorized under s. 281.163 (4) in a category designated under s. 281.16 (5) (b) 1. as having heightened vulnerability to groundwater contamination and is in an area with characteristics specified under s. 281.16 (5) (b) 2. that indicate a level of groundwater contamination that affects public health.

AB226-ASA1,14 Section 14. 93.90 (2) (a) of the statutes is amended to read:

AB226-ASA1,9,7 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.

AB226-ASA1,15 Section 15. 281.16 (3) (e) of the statutes is amended to read:

AB226-ASA1,9,25 281.16 (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 percent of the cost of compliance or is from 70 percent to 90 percent of the cost of compliance in cases of economic hardship, as defined in the rules.

AB226-ASA1,16 Section 16. 281.16 (4) of the statutes is renumbered 281.16 (4) (a) and amended to read:

AB226-ASA1,10,6 281.16 (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).

AB226-ASA1,10,12 (b) If an animal feeding operation for which the department 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).

AB226-ASA1,17 Section 17. 281.16 (5) of the statutes is created to read:

AB226-ASA1,10,19 281.16 (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 designated under par. (b) 1. as having heightened vulnerability to groundwater contamination and is in an area with characteristics specified under par. (b) 2. that indicate a level of groundwater contamination that affects public health.

AB226-ASA1,10,21 (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):

AB226-ASA1,10,23 1. Designate the categories under s. 281.163 (3) (a) that have heightened vulnerability to groundwater contamination.

AB226-ASA1,11,2 2. Specify the characteristics that indicate levels of groundwater contamination that affect public health, such as the existence in an area of a well in which the concentration of contaminants exceeds a preventive action limit, as defined in s. 160.01 (6).

AB226-ASA1,18 Section 18. 281.163 of the statutes is created to read:

AB226-ASA1,11,5 281.163 Water quality protection; carbonate bedrock areas. (1) Definitions. In this section:

AB226-ASA1,11,9 (a) “Land spreading" means spreading animal waste, septage, sewage sludge, industrial waste, or any other type of solid waste on the surface of the land or incorporating animal waste, septage, sewage sludge, industrial waste, or any other type of solid waste into the surface layers of the soil.

AB226-ASA1,11,11 (b) “Potentially susceptible area" means an area identified by the department under sub. (2).

AB226-ASA1,11,12 (c) “Septage" has the meaning given in s. 281.48 (2) (d).

AB226-ASA1,11,19 (2) Identification of potentially susceptible areas. Using information available to it, the department shall identify areas in this state that exhibit carbonate bedrock characteristics that may cause the areas to be susceptible to groundwater contamination from land spreading. At a minimum, the department shall identify an area under this subsection if the area has carbonate bedrock less than 50 feet from the surface of the land, as shown by bedrock maps produced by the geological and natural history survey and other maps identified by the department.

AB226-ASA1,11,23 (3) Rules for vulnerability ranking of land in potentially susceptible areas. (a) The department shall promulgate rules for ranking the land in potentially susceptible areas by categories according to relative vulnerability to groundwater contamination from land spreading, based on factors that include all of the following:

AB226-ASA1,11,24 1. Bedrock features.

AB226-ASA1,11,25 2. Depth and other characteristics of top soil.

AB226-ASA1,12,2 3. Whether the department has declared the land to be an area of special eligibility for compensation for well contamination under s. 281.75 (2) (e).

AB226-ASA1,12,4 4. Whether the department has established the land as a special well casing pipe depth area under ch. NR 812, Wis. Adm. Code.

AB226-ASA1,12,6 (b) In the rules under par. (a), the department shall identify types of uses of land that cause land spreading on the land to be impossible or impracticable.

AB226-ASA1,12,11 (4) Categorizing potentially susceptible land. (a) The county land conservation committee in a county in which a potentially susceptible area is located shall categorize all land in potentially susceptible areas in the county, except for land that is in a land use identified under sub. (3) (b), in accordance with the rules under sub. (3) (a).

AB226-ASA1,12,16 (b) 1. The owner of land categorized under par. (a), the department of natural resources, the department of agriculture, trade and consumer protection, an organization, or any other person may request a county land conservation committee to review the categorization of land under par. (a) based on site-specific information showing the categorization to be inconsistent with the rules under sub. (3).

AB226-ASA1,12,24 2. A county land conservation committee receiving a request under subd. 1. shall conduct an informal hearing on the request. A county land conservation committee shall provide public notice of a request under this subdivision. Section 68.11 (2) does not apply to the hearing. The county land conservation committee shall provide reasonable notice of the hearing to the person requesting the review; the owner of the land, if the owner did not request the review; the department of natural resources; and the department of agriculture, trade and consumer protection.

AB226-ASA1,13,6 (c) The owner of land categorized under par. (a), the department of natural resources, the department of agriculture, trade and consumer protection, an organization, or any other person may obtain a review of the decision of a county land conservation committee under par. (b) by filing a written request with the land and water conservation board within 60 days after the day on which the county land conservation committee issues the decision.