Regulation of aquaculture and fish farms, providing an exemption from emergency rule procedures, and granting rule-making authority. (FE)

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.

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.