AB254: Bill Text

This bill provides that a forestry operation may not be declared a nuisance if the forestry operation conforms to generally accepted forestry management practices. Under the bill, forestry operations include removal of vegetation or dead trees, noise from forestry equipment, and use of chemicals that are normally used in forestry operations. In addition, the bill provides that a forestry operation that conforms to generally accepted forestry management practices is not a nuisance regardless of any of the following:

1. Change in ownership or size of a forest.

2. Interruption of forestry operations.

3. Enrollment of part or all of the forest in governmental forestry programs.

4. Adoption of new forestry technology.

The bill also allows a person who is alleged to have committed the nuisance to receive his or her costs, including attorney fees, if he or she prevails in the action alleging a nuisance.

Under current law, cities, villages, towns that are authorized to exercise village powers, certain other towns, and counties (political subdivisions) are authorized to enact zoning ordinances that regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards and other open spaces, the density of population, the location and use of buildings, structures, and land for various purposes, and the areas within which activities such as agriculture, forestry, and mining may be conducted.

Under this bill, no political subdivision may enact a zoning ordinance that prohibits forestry operations that are in accordance with generally accepted forestry management practices.

This bill also requires DNR to establish a program that allows private cooperating foresters to assist the state in the harvesting and sale of timber from state forest lands. The bill requires DNR to appoint cooperating foresters as agents of DNR for the purpose of harvesting and selling timber from state forest lands and to allow those foresters to receive a portion of the proceeds from each timber sale.

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:

AB254, s. 1 Section 1. 23.114 of the statutes is created to read:

AB254,3,4 23.114 Duties of the chief state forester. (1) (a) In this section, "state forest land" means all forested lands owned or managed by the department or managed by a person under the direction of the department.

AB254,3,10 (b) Except as provided in par. (c), the chief state forester shall manage emergencies that threaten state forest lands. The department shall promulgate rules specifying those emergencies over which the chief state forester shall have management responsibility. The emergencies specified in the rules shall include invasive species or pest infestation, disease, and damage to timber from fire, snow, hail, ice, or wind.

AB254,3,12 (c) Paragraph (b) does not apply to a state of emergency declared by the governor under s. 166.03.

AB254,3,14 (2) The chief state forester shall report directly to the secretary of the department.

AB254, s. 2 Section 2. 23.135 of the statutes is created to read:

AB254,3,19 23.135 Forest land inventory and report. (1) In this section, "state forest land" means any parcel of 10 or more contiguous acres of forested land owned or managed by the department or managed by a person under the direction of the department.

AB254,4,2 (2) The department shall undertake and maintain a current inventory of state forest lands.

AB254,4,6 (3) If the department prohibits the use of active management techniques on any state forest land, the department shall prepare a report that contains a projection of the long-term forest health effects and a projection of the economic effects that result from that prohibition.

AB254,4,8 (4) The department shall prepare each report required under sub. (3) once every 15 years.

AB254,4,11 (5) The department shall submit the report required under sub. (3) to the council on forestry and to the appropriate standing committee in each house of the legislature under s. 13.172 (3).

AB254, s. 3 Section 3. 28.025 of the statutes is created to read:

AB254,4,24 28.025 Annual allowable timber harvests. The department shall establish annual allowable timber harvests for every parcel of 10 or more contiguous acres of forested land owned or managed by the department or managed by a person under the direction of the department. Annually, by January 1, the department shall submit a report to the council on forestry specifying the total timber harvest on each of those parcels for the previous year. If the timber harvest for any of these parcels in any year is less than 90 percent, or more than 110 percent, of the allowable timber harvest established parcel, the council on forestry shall prepare a report containing recommendations on methods of ensuring that the timber harvest for that parcel is consistent with the annual allowable timber harvest established by the department. The council on forestry shall submit the report to the governor and to the appropriate standing committees of the legislature under s. 13.172 (3).

AB254, s. 4 Section 4. 28.04 (1) (br) of the statutes is created to read:

AB254,5,1 28.04 (1) (br) "Division" means the division of forestry in the department.

AB254, s. 5 Section 5. 28.04 (2) (a) of the statutes is amended to read:

AB254,5,16 28.04 (2) (a) The department division shall manage the state forests forest to benefit the present and future generations of residents of this state, recognizing that the state forests forest lands contribute to local and statewide economies and to a healthy natural environment. The department division shall assure the practice of sustainable forestry and use it to assure that state forests forest lands can provide a full range of benefits for present and future generations. The department division shall also assure that the management of state forests is consistent with the ecological capability of the state forest land and with the long-term maintenance of sustainable forest communities and ecosystems. These benefits include soil protection, public hunting, protection of water quality, production of recurring forest products, outdoor recreation, native biological diversity, aquatic and terrestrial wildlife, and aesthetics. The range of benefits provided by the department division in each state forest shall reflect its unique character and position in the regional landscape.

AB254, s. 6 Section 6. 28.04 (2) (b) of the statutes is amended to read:

AB254,5,20 28.04 (2) (b) In managing the state forests, the department division shall recognize that not all benefits under par. (a) can or should be provided in every area of a state forest.

AB254, s. 7 Section 7. 28.04 (2) (c) of the statutes is amended to read:

AB254,5,23 28.04 (2) (c) In managing the state forests, the department division shall recognize that management may consist of both active and passive techniques.

AB254, s. 8 Section 8. 28.04 (3) (a) of the statutes is amended to read:

AB254,6,5 28.04 (3) (a) The department division shall prepare a plan for each state forest that describes how the state forest will be managed. The department division shall work with the public to identify property goals and objectives that are consistent with the purposes under sub. (2). The department division shall identify in each plan the objectives of management for distinct areas of the state forest.

AB254, s. 9 Section 9. 28.04 (3) (b) of the statutes is amended to read:

AB254,6,16 28.04 (3) (b) The department division shall establish procedures for the preparation and modification of these plans, including procedures for public participation. In preparing and modifying plans under this subsection, the department division shall use the best available information regarding the purposes and benefits of the state forests that the department division acquires through inventories, evaluations, monitoring and research. In evaluating such information, the department division shall consider both regional and local scales, including the impact on local economies. As new information becomes available, the department division shall adapt its management of the state forest and, if necessary, the plan for the state forest.

AB254, s. 10 Section 10. 28.05 (3) of the statutes is created to read:

AB254,7,6 28.05 (3) Cooperating foresters. (a) The department shall, by rule, establish a program that allows private cooperating foresters to assist the state in the harvesting and sale of timber from state forest lands to meet the annual timber harvest goals established under s. 28.025. The rule shall include provisions authorizing the department to appoint cooperating foresters as agents of the department for the purpose of harvesting and selling timber from state forest lands and authorizing cooperating foresters to receive a portion of the proceeds from each timber sale. The department shall establish in the rule a method for determining what portion of the proceeds received from each timber sale shall be paid to the private cooperating foresters for their services in assisting the division in the harvesting and sale of timber from state forest lands. The division shall ask the council on forestry to recommend a method for determining what portion of the proceeds received from each timber sale shall be paid to private cooperating foresters under the rule.

AB254,7,10 (b) Each private cooperating forester appointed as an agent under par. (a) to harvest and sell timber from state forest lands shall be entitled to receive a portion of the proceeds from the sale of such timber in the amount determined by the department under par. (a).

AB254, s. 11 Section 11. 59.69 (4) (a) of the statutes is amended to read:

AB254,7,16 59.69 (4) (a) The areas within which agriculture, forestry, industry, mining, trades, business and recreation may be conducted, except that no ordinance enacted under this subsection may prohibit forestry operations that are in accordance with generally accepted forestry management practices, as defined under s. 823.075 (1) (c).

AB254, s. 12 Section 12. 60.61 (2) (a) of the statutes is renumbered 60.61 (2) (a) (intro.) and amended to read:

AB254,7,19 60.61 (2) (a) (intro.) Regulate, restrict and determine : the all of the following:

AB254,7,23 1. The areas within which agriculture, forestry, mining and recreation may be conducted; the, except that no ordinance enacted under this subsection may prohibit forestry operations that are in accordance with generally accepted forestry management practices, as defined under s. 823.075 (1) (c).

AB254,7,24 2. The location of roads, schools, trades and industries; the.

AB254,8,2 3. The location, height, bulk, number of stories and size of buildings and other structures; the.

AB254,8,3 4. The percentage of a lot which may be occupied ; the.

AB254,8,4 5. The size of yards, courts and other open spaces ; the.

AB254,8,5 6. The density and distribution of population; the.

AB254,8,6 7. The location of buildings designed for specified uses; the.

AB254,8,8 8. The trades, industries or purposes that may be engaged in or subject to regulation; and the.

AB254,8,9 9. The uses for which buildings may not be erected or altered.

AB254, s. 13 Section 13. 62.23 (7) (b) of the statutes is amended to read:

AB254,9,5 62.23 (7) (b) Districts. For any and all of said purposes the council may divide the city into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this section; and within such districts it may regulate and restrict the erection, construction, reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings and for the use of land throughout each district, but the regulations in one district may differ from those in other districts. No ordinance enacted or regulation adopted under this subsection may prohibit forestry operations that are in accordance with generally accepted forestry management practices, as defined under s. 823.075 (1) (c). The council may with the consent of the owners establish special districts, to be called planned development districts, with regulations in each, which in addition to those provided in par. (c), will over a period of time tend to promote the maximum benefit from coordinated area site planning, diversified location of structures and mixed compatible uses. Such regulations shall provide for a safe and efficient system for pedestrian and vehicular traffic, attractive recreation and landscaped open spaces, economic design and location of public and private utilities and community facilities and insure adequate standards of construction and planning. Such regulations may also provide for the development of the land in such districts with one or more principal structures and related accessory uses, and in such districts the regulations need not be uniform.

AB254, s. 14 Section 14. 94.025 of the statutes is created to read:

AB254,9,10 94.025 Emergencies on state forest lands. Notwithstanding ss. 94.01 and 94.02, the chief state forester shall be the person with the authority and responsibility to manage invasive species or pest infestations that threaten state forest lands as provided under s. 23.114.

AB254, s. 15 Section 15. 823.075 of the statutes is created to read:

AB254,9,12 823.075 Actions against forestry operations. (1) In this section:

AB254,9,13 (a) "Department" means the department of natural resources.

AB254,9,16 (b) "Forest" means a parcel of land in which at least 80 percent of the parcel is producing or is capable of producing at least 20 cubic feet of merchantable timber, as defined in s. 77.81 (3), per acre per year.

AB254,9,19 (c) "Generally accepted forestry management practices" means forestry management practices that maximize sound management of a forest, as determined by the department by rule.

AB254,9,23 (2) A forestry operation is not a nuisance if the forestry operation alleged to be a nuisance conforms to generally accepted forestry management practices. Any of the following are examples of forestry operations that are not a nuisance if conducted in conformance with generally accepted forestry management practices:

AB254,9,25 (a) Removal of vegetation, dead or live trees, bark, foliage, or wood resulting in visual changes in a forest.

AB254,10,1 (b) Noise from forestry equipment.

AB254,10,3 (c) Removal of vegetation, dead or live trees, bark, foliage, or wood from a forest adjoining the property of another person.

AB254,10,4 (d) Use of chemicals that are normally used in forestry operations.

AB254,10,6 (3) A forestry operation that conforms to generally accepted forestry management practices is not a nuisance regardless of any of the following:

AB254,10,7 (a) A change in ownership or size of a forest.

AB254,10,8 (b) Cessation or interruption of forestry operations.

AB254,10,10 (c) Enrollment of all or part of the forest in governmental forestry or conservation programs.

AB254,10,11 (d) Adoption of new forestry technology.

AB254,10,15 (4) In any action in which a forestry operation is alleged to be a nuisance, if the party who was alleged to commit the nuisance prevails, the court may award that party the actual and necessary costs incurred in the action and, notwithstanding s. 814.04 (1), reasonable attorney fees.

AB254, s. 16 Section 16. Nonstatutory provisions.

AB254,10,23 (1) The department of natural resources shall submit in proposed form the rules required under sections 23.114 (1) (b) and 28.05 (3) of the statutes, as created by this act, to the legislative council staff under section 227.15 (1) of the statutes no later than the first day of the 6th month beginning after the effective date of this subsection, unless the secretary of administration requires the department of natural resources to prepare an economic impact report under section 227.137 of the statutes for the proposed rules.

AB254,11,7 (2) Using the procedure under section 227.24 of the statutes, the department of natural resources shall promulgate rules required under sections 23.114 (1) (b) and 28.05 (3) of the statutes, as created by this act, for the period before the effective date of the permanent rules submitted under subsection (1). Notwithstanding section 227.24 (1) (c) and (2) of the statutes, emergency rules promulgated under this subsection remain in effect until the date on which permanent rules take effect. Notwithstanding section 227.24 (1) (a) and (3) of the statutes, the department is not required to provide a finding of emergency for a rule promulgated under this subsection.

AB254, s. 17 Section 17. Effective dates. This act takes effect on the day after publication, except as follows:

AB254,11,11 (1) The treatment of sections 23.135 and 28.025 of the statutes takes effect on the first day of the 13th month beginning after publication.

AB254,11,13 (2) The treatment of sections 23.114 (1) (b) and 28.05 (3) of the statutes takes effect on the first day of the 4th month beginning after publication.

AB254,11,14 (End)