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Aquaculture bill raises concerns for the environment and the Public Trust

Mar 13, 2017

Senator Tom Tiffany recently revived a special interest bill for the aquaculture—otherwise known as fish farming—industry in Senate Bill 95. This year’s version removed some of the more concerning exemptions from our state wetland protection laws (you can find more from the Wisconsin Wetlands Association about wetlands issues in this bill through their comment memo and testimony). However, this bill continues to be a blatant giveaway to local special interests in his district at the expense of one of the state’s highest quality trout streams.

The key difference between our state’s natural fisheries and fish farms is private ownership. A fish farm may raise fish to sell directly to market, or to operate a private fishery open to those who pay a fee. Midwest Environmental Advocates opposes Senator Tiffany’s effort to give our state’s waters and fish from those waters to private corporations. We identified problems with this bill last year (and board member Dave Clausen wrote about it in the Milwaukee Journal Sentinel), many of which remain, as explained below.

Natural Bodies of Water Used to Expand Existing Fish Farms

Springs are critically important to trout streams and other fisheries that rely on cold water from underground. This bill allows existing fish farms to expand and appropriate these and other natural water bodies for their own profit.

Here is the DNR’s comment on a similar provision in last year’s bill: “Chapter 29.733 regulates the use of natural water bodies for fish farming. Sections 1-8 of the bill expand the category of natural waterbodies that may be used as part of a fish farm to also include springs that provide water to an artificially constructed pond.  Under current law waters of the state may be used for fish farming only if the water body is a freeze-out pond, a pre-existing fish rearing facility, or a waterbody for which the DNR has issued a construction permit.  The legislation also creates an exemption from state law from needing a permit for someone who previously had a permit to raise fish in a natural waterbody, provided they have not modified or expanded their facility.

“Department staff have mapped over 10,800 springs across the state.  Expansion of aquaculture use of headwater spring habitats could impact state trout fisheries and stream water temperature, quality and habitat.”

Opening the Lower Wisconsin State Riverway to Fish Farms

This provision is a new addition to the bill that would allow new fish farms in the lower Wisconsin State Riverway by grouping it with traditional agriculture. The bill requires these fish farms to comply with rules for traditional agriculture, but these rules were not designed to prevent water quality impacts from fish farms.

Allowing DNR to take fish and fish eggs from state waters to give them to private fish farms

This provision was not in last year’s bill and we don’t yet have any comment from the DNR, but we hope staff will weigh in. The bill allows DNR to give fish eggs taken from waters of the state to fish farms as long as some of the mature fish are stocked in public waters. We’re still examining the potential impact of this provision, and look forward to clarification by legislators.

Exempts an existing fish farm in Langlade County from requirements designed to protect aquatic life and ensure there is continuous flow to the stream below the farm’s dam

After opposition to this private diversion of state waters, Senator Tiffany made it applicable only to existing fish farms in Langlade County—his district. There are many high-quality trout streams in that area that could be affected. Even if the new bill has a more limited impact statewide, we oppose any effort to privatize state waters.

Here are the DNR’s comments on a similar provision last year: “The bill provides an exemption from the requirement in sec. 31.34, Wis. Stats. that mandates all dams on navigable streams must release a minimum of 25% low flow at all times.  The exemption would be for any dam in an aquaculture facility where the water is returned to the navigable stream.

“This change could have impacts on stretches of streams that could become de-watered when the outfall (return flow point) is a distance downstream of the intake (diversion point). If the intent is for the exemption to be unlimited on how much of the navigable stream could potentially be impacted by the lack of flow, it could potentially leave some watercourses short of the water needed to remain viable. Without an adequate minimum flow, adequate mixing may not occur which could lead to water quality impacts and degradation of the water resource downstream.”                                                                                                               

The bill's implications under the Great Lakes Compact

MEA of counsel attorney Jodi Habush Sinykin provided this analysis of how the Aquaculture bill contains a provision bearing upon the Great Lakes Compact, with explicit language creating and sanctioning an exemption for water withdrawals that would otherwise fall under Great Lakes Compact reporting, monitoring and water conservation requirements. 

Specifically, Section 18 of the bill proposes the following change to Wisconsin’s Compact statute:

SECTION 18.  281.346 (2) (bm) of the statutes is created to read: 

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. 

This is a change that warrants scrutiny. Under the Compact and Wisconsin’s implementing legislation, any withdrawal of water from the Great Lakes Basin that averages 100,000 GPD or more in any 30-day period to register with the state and provide information about the withdrawal, including reporting annual information about monthly amounts withdrawn, diverted or lost through consumptive use. 

By exempting fish farm withdrawals and any subsequent use of that water (indefinitely) as a “withdrawal” for purposes of the Compact, this bill removes a category of water usage, aquaculture, from the purview and standards of the Compact, without regional approval, thereby creating a loophole that may at this point appear small in scale but which could have a far broader impact in terms of precedent concerning other water uses at the state and regional level.

Moreover, enabling a permanent exemption from the Great Lakes Compact along the lines of this bill’s provision 18 will undermine Wisconsin’s existing water conservation program, both within the Great Lakes basin and statewide, and lead to an unfair and arbitrary regulatory program for Wisconsin businesses and larger water users. 

When Wisconsin ratified the Great Lakes Compact on May 27, 2008, the state’s implementing legislation, 2007 Act 227, establishes the basis for a statewide water conservation and water use efficiency program. Chapter NR 852 thereafter established mandatory water conservation and efficiency requirements for certain levels of new or increased withdrawals within the Great Lakes basin, for diversions of Great Lakes waters, and for withdrawals statewide that result in a water loss exceeding 2 million gallons per day. Water withdrawals subject to the rule are categorized into one of three tiers subject to different levels of conservation and efficiency measures (CEMs); for example, Tier 1 includes persons, such as a fish farm operator, proposing new and increased withdrawals in the Great Lakes Basin that average 100,000 gallons per day or more in any 30-day period. Arbitrary exemptions cannot be granted certain categories of users, removing them from the state’s tiered CEMs and mandatory water conservation requirements for no sound reason, without compromising the entire program.

Accordingly, for these reasons of state and regional importance, the Section 18 provision, creating this permanent exemption, should be eliminated to avoid sanctioning a precedent that could undermine the Great Lakes Compact and Great Lakes basin resource management.

 
/ tagged: water, agriculture, public trust doctrine