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Why exempting fish farms from water and wetlands protections gives industry a free pass

Jan 12, 2016

Analysis of Aquaculture Bill - Exempts Fish Farms from Many Water Quality Protections

A legislative proposal that would reduce the aquaculture industry’s accountability for laws that protect our water is coming to the Wisconsin Capitol.

First, there is a big difference between the natural fisheries that have been a part of Wisconsin’s water-based economy for years and farmed fish that come from the aquaculture industry. Natural fisheries use stocked fish ponds or fish in the wild – our rivers and lakes that aren’t owned by any individual or industry. Aquaculture depends on industrialized fish farms with tens of thousands of fish and aquatic life raised in captivity in ponds, pens or nets.

Remember that Wisconsin’s waters belong to all of us and that’s why it makes sense for our state taxpayers to support stocking natural fisheries and efforts to keep our river, stream and lake water clean. But when our state government doesn’t regulate aquaculture or allows fish farms to take water from the rivers and streams we depend on, it’s left to the public to pay for pollution and deal with the impacts of the industry’s activities on our water and natural fisheries.

Senate Bill 493 would exempt fish farms from basic accountability for laws on reducing agricultural pollution and would impact us all. Worse, the public was given just 24-hours’ notice of a hearing on the bill earlier this month. That may have been enough time for representatives of the aquaculture industry to show up in support of the bill, but the public certainly needs more notice to digest these changes and give their input.

Fortunately the Wisconsin Department of Natural Resources had time to provide important comments on how these changes would affect our resources and change current state law. We’ve provided some of the DNR’s comments below along with our main concerns about the legislative proposal.

Natural Bodies of Water Used as Fish Farms

DNR comment:

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.

MEA comment:

Springs are a unique and critically important resource. In other statutes, they are given additional protections to ensure they are not impacted by water withdrawals, for example. This bill favors the fish farming industry over public rights in these waters on which natural trout and other fisheries rely. Can the legislature explain why it is good for Wisconsin to allow fish farms to destroy a natural fishery so they can produce fish for their own profit?

Navigable Water Permits

DNR comment:

Section 9 of the bill exempts aquacultural uses from the requirement to obtain a permit to construct or dredge an artificial enlargement of a navigable waterway or to grade on the bank of a navigable waterway including trout streams and “outstanding and exceptional resource waters.” Construction of aquaculture ponds in these areas have significant potential to create difficulty meeting physical and chemical water quality standards for the waterway, habitat fragmentation, and impacts spawning and fish rearing areas. Unregulated construction of aquaculture ponds on navigable waterways could create conflict between aquaculture business owners and members of the public exercising their right to navigate on navigable waterways.

Section 10 adds aquaculture to the definition in chapter 30 for "agricultural use." This adds aquaculture to any activities in chapter 30 permits such as exemptions and permits that use this definition.

MEA comment:

This bill would let fish farms do what they want with navigable waters such as streams and lakes without DNR oversight. This includes trout streams and other pristine waterways that provide natural fisheries and recreational opportunities. This bill gives industry a free pass to modify and pollute natural waters at the expense of public users.

Dams on Navigable Streams

DNR comment:

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.

MEA comment:

The law already includes an exemption that allows the DNR to waive the minimum flow requirement where, in the DNR’s opinion, it “is not necessary for the protection of fish life.” By providing a blanket exemption to dams for fish farms, the legislature will allow a fish farm not to return a minimum flow to the river even where that flow is necessary to protect aquatic life in the river.

Fish Farm Nonpoint Discharges to Waters

DNR comment:

Under s. 281.16(2)(a), stats., the department is required to prescribe the performance standards for nonpoint sources that are not agricultural facilities or agricultural practices. The rule that prescribes these performance standards, subch. III of ch. NR 151, Wis. Adm. Code, exempts agricultural facilities and practices from the non-agricultural performance standards. Currently, since aquaculture is not explicitly listed as an agricultural practice, aquaculture activities are not exempt from the non-agricultural performance standards in subch. III of ch. 151. This change will exempt aquaculture from the non-agricultural performance standards the same as other types of agricultural practices by adding aquaculture to the list of activities that make up "agricultural practice" and that are associated with an "agricultural facility."

By adding aquaculture to the list of activities that make up "agricultural practice," the agricultural performance standards and associated cost-sharing requirements under the current statute would also apply to aquaculture facilities. Any BMPs to meet performance standards would need to be promulgated in rule by both DNR and DATCP in order to provide cost-sharing funds through grant programs.

MEA comment:

The current agricultural performance standards in chapter NR 151 are tailored to traditional agriculture and are likely not appropriate to limit discharges from aquacultural practices. As DNR points out, new rules need to be created to develop appropriate best management practices (BMPs) for fish farms. In our Petition for Corrective Action to the EPA to fix problems with Wisconsin’s regulatory program for water discharges, MEA pointed out that part of the problem stems from the extremely drawn out rule-making process. This bill would leave a regulatory gap for fish farms while the DNR goes through rule making.

Wetland permits, Wetland exemptions, and WPDES Permits

DNR comment:

Various provisions in this bill would provide exemptions or changes to state implementation of the federal Clean Water Act (CWA). It should be noted that in most cases Army Corp of Engineers and Environmental Protection Agency laws would still have to be followed by both the State and aquaculture facilities including:

  • Alternatives analysis required by federal law for permits for a discharge to federally regulated wetlands
  • Federal factors used in review for wetland individual permits
  • Federal approval of any changes to the department's in lieu fee program
  • Federal mitigation requirements
  • NPDES condition limitations
  • Federal numeric standard Water Quality Based Effluent Limits

MEA comment:

Just like another bad water bill that is circulating, AB 600, this bill attempts to make it easier for the fish farming industry to fill wetlands. What the legislators don’t understand is that creating inconsistencies between federal and state regulation of wetlands only slows down the wetland permit process since most projects need permits from both agencies.

Even though this bill purports to allow a fish farm to get a wetland fill permit without analyzing whether practicable alternatives exist, the fish farm would still need to prove to the Army Corps of Engineers that there were no such alternatives to filling the wetland. This creates only confusion and delay for the regulated industry.

Additionally, this bill purports to give credit to fish farms for creating wetlands in their operation, but elsewhere allows fish farms to fill wetlands created on their property. This would give fish farms mitigation credit for creating or restoring wetlands that they’re later allowed to destroy, pollute, or fill.

What's next

Senate Bill 493 got a hearing in the Senate Committee on Sporting Heritage, Mining and Forestry on January 5 and heads into executive session on Thursday, January 14 (agenda PDF). Voters can contact their state Senators to express their opposition to this bill. Its companion bill in the Assembly, AB 640, has not had a hearing, but voters still have time to contact their Assembly representatives as well. 

Have you seen the new, interactive legislative map on the Wisconsin State Legislature website? Go to http://maps.legis.wisconsin.gov/, enter your voting address, and quickly get your legislators' contact information.

/ tagged: wetlands, water, drinking water, agriculture, public trust doctrine