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April 2016

2015-16 State Legislative Wrap-up
By Jordan Lamb, DeWitt Ross & Stevens

The Wisconsin State Legislature has officially wrapped up its action for the 2015-16 legislative session. The Legislature addressed a number of issues that affect Wisconsin farmers and also left a number of critical issues for the next session, which begins in January 2017. 

High Capacity Wells
The Legislature considered two different approaches to addressing farmers' concerns surrounding the regulatory problems under current law with permitting of high capacity wells. Unfortunately, neither approach will be sent to the Governor for his signature this session.

Comprehensive High Capacity Well-Permitting Reform (SB 291 / AB 477) - FAILED TO PASS. 
Senator Rob Cowles (R-Green Bay) and Representative Scott Krug (R-Nekoosa) worked on legislation to provide comprehensive regulatory certainty to those seeking a new high capacity well or those who desire to reconstruct or repair an existing high capacity well, while also putting into place mechanisms to address particularly sensitive areas in Wisconsin in terms of groundwater pumping. This legislation was very thorough in the issues it addressed, but it could not be drafted in an agreed-upon manner before the session came to an end. It is expected to be revisited again during the 2017-18 session.

Repair, Replacement, Reconstruction and Transfer of Ownership of HCW's (SB 239 / AB 874) - PASSED IN DIFFERENT VERSIONS - FAILED. 
Senate Rick Gudex (R-Fond du Lac) and Rep. Lee Nerison (R-Westby) introduced more limited high capacity well legislation that would simply clarify that owners of existing HCW's can repair, replace, reconstruct and transfer the ownership of HCW's without triggering an environmental review of their wells. This legislation was amended at the very end of the session to include a mandatory study of particularly sensitive watersheds in Wisconsin and, in the Assembly version, to include a provision that would allow private well owners to sue high capacity well owners under a nuisance action if they are "unreasonably harmed" by high capacity wells that have lowered the water table or caused a decrease in their water pressure. Under this provision, the prevailing party could collect their attorneys' fees and costs. This is the same as the provision under current s. 823.08, known as Wisconsin's "Right to Farm" law. 

However, after the Assembly passed the legislation, several Republican Senators as well as the Wisconsin Realtors Association, objected to this fee provision when the bill reached the Senate. Accordingly, the Senate removed the provision. Unfortunately, the Assembly had no plans to reconvene to concur in the amended Senate version of the bill. As a result, even though this bill passed both houses, because it passed in different forms, it will not be sent to the Governor. This issue will have to be addressed again during the 2017-18 legislative session.
Transportation / Road Weight Limits 

Senator Jerry Petrowski (R-Marathon) and Representative Keith Ripp (R-Lodi) continued to refine their initial comprehensive implements of husbandry (farm implements) weight limit legislation that was originally passed in 2014 (2013 Wisconsin Act 377) and which generally gave farm implements operating on the roadways a 15% increase in road weight limits. 

Implements of Husbandry (IOH) 2.0 - ENACTED 2015 Wisconsin Act 15. 
In April 2015, the Governor signed 2015 Act 15, which clarified IOH issues related to towed and attached IOH; specified that IOH with rubber tracks can legally operate on a highway; and provided other technical changes that improve the application of the law to "agricultural commercial motor vehicles" (Ag CMVs).

Implements of Husbandry (IOH) 3.0 - ENACTED 2015 Wisconsin Act 232. 
During the fall 2015 session, Representative Ripp and Senator Petrowski further updated IOH laws with roughly 15 distinct yet very technical modifications. For instance this legislation provided: the definition of farm tractor was updated to reflect recent changes in statutory language from Act 377 and Act 15; use of "farm implement" in Chapter 347 of statutes was changed to "implements of husbandry"; SMV sign usage was updated to correct inconsistencies and clarify its true purpose (to indicate speed); and further clarifications as to how wide implements being trailered need to be properly lighted and marked.
Extension of Fall Harvest Weight Exemption - ENACTED 2015 Wisconsin Act 235.
Assembly Bill 733 and Senate Bill 509, authored by Representative Spiros (R-Marshfield) and Senator Petrowski (R-Marathon), provides that the 15% seasonal weight limit increase for certain vehicles transporting agricultural crops from harvest to initial storage or harvest to initial processing, begins on August 1st rather than on September 1st of each calendar year. This weight limit increase ends on December 31 of each calendar year. 

Other Legislative Issues

Manure Piping - Local Authority Clarified - ENACTED 2015 Wisconsin Act 231.
Senate Bill 390 / Assembly Bill 518, authored by Senator Jerry Petrowski (R-Marathon) and Representative James "Jimmy Boy" Edming (R-Glen Flora) specifies that local governments may authorize pipelines or hoses transmitting liquid manure to operate within or across a highway right-of-way. 

Under Wisconsin law, no person may excavate, fill, install a culvert in, or otherwise alter or disturb any highway without a permit from the authority maintaining the highway (i.e., a "driveway permit.") Also under Wisconsin law, a utility permit, issued by the authority maintaining the highway, is required to construct and operate utility lines along, across, or within the limits of the highway. Act 231 requires the construction of subterranean pipelines or hoses OR above-groups pipelines or hoses transmitting liquid manure within or across a highway right-of-way to obtain either a utility permit or a driveway permit from the authority maintaining the highway, depending on the circumstances.

Elimination of Adverse Possession Claims Against Public Property - ENACTED 2015 Wisconsin Act 219.
Senate Bill 314 / Assembly Bill 459, authored by Senator Howard Marklein (R-Spring Green) and Representative Robert Brooks (R-Saukville) "grandfathers" all adverse claims against public property (e.g., property owned by a town, county, municipality or the State of Wisconsin) that have "matured," in most cases, extended 20 years. The bill, however, eliminates any future adverse possession claims against public property.

CORRECTED ARTICLE: Adverse Possession Claims Against Private Property - ENACTED Wisconsin Act 200. Senate Bill 344 and Assembly Bill 465, authored by Senator Chris Kapenga (R-Delafield) and Representative David Craig (R-Big Bend) retains the law of adverse possession but clarifies how the title record holder (rightful landowner) can interrupt someone's ability to adversely possess the rightful landowner's property. The rightful landowner can now submit an "affidavit of interruption" along with a survey of the parcel to the register of deeds and notify the abutting neighbor via certified mail of the rightful landowner's actions. Farmers own 14.5 million acres of land throughout the state. This bill helps retain an important and useful law, but better clarifies how someone can stop an adverse possession claim against them. Senate Bill 344 was signed into law as WI Act 200 on March 1.

Authority of UW Board of Regents to Sell or Lease Agricultural Land - ENACTED 2015 Wisconsin Act 230.
Assembly Bill 717 and Senate Bill 571, authored by Senator Jerry Petrowski (R-Marathon) and Representative Keith Ripp (R-Lodi), expands the authority of the Board of Regents of the University of Wisconsin System regarding transfers of agricultural land. 
Prior Wisconsin law allowed the Board of Regents to sell or lease specified tracts of agricultural land and improvements thereon subject to the approval of the Building Commission. This legislation allows the Board of Regents to sell or lease agricultural land without the approval of the Building Commission, allowing the University to be more nimble and responsive in terms of agricultural land transfers.

Producer-Led Watershed Grant Program (ENACTED in 2015-17 Budget Bill) .
As a part of the 2015-17 biennial budget bill, the State Legislature created a new grant program at DATCP called the "Producer-Led Watershed Protection Grant Program." WCA worked with other ag groups to secure the creation and funding of this program. The goal is to make water quality initiatives original from the farmers rather than the regulators.

This program provides an additional $500,000 in funding over the biennium for water quality abatement activities. The new grant program is specifically for farmers within a watershed to design and l ead their own water quality activities.

DATCP is authorized to award grants totaling up to $250,000 each year to qualified groups consisting of at least five agricultural producers that wish to voluntarily conduct nonpoint source water pollution abatement activities in their watersheds. There are several statutory conditions that must be met for farmers to be eligible to receive these grants.

Farmers who are interested in seeking funds for a voluntary producer-led water quality project should form their producer group immediately and identify their collaborative partner in anticipation of the spring request for grant proposals. For more information, go to DATCP's website http://datcp.wi.gov.
The PDPW Capitol Link is a periodic publication produced by PDPW and DeWitt Ross & Stevens. The information provided in this newsletter is provided for educational and informational purposes only. PDPW does not attempt to influence legislation or administrative rules at any level. The contents of this newsletter are intended for general information purposes only and should not be construed as legal advice or legal opinion on any specific situation. You are urged to consult an attorney concerning your own situation and any legal questions you may have.

Jordan Lamb is a partner at DeWitt Ross & Stevens' Capitol Square office in Madison. Jordan's law practice focuses on government relations and administrative law. She concentrates on legislative drafting, legislative research, and facilitating communication between clients and state government including administrative agencies and the State Legislature. Ms. Lamb also offers litigation support for administrative law issues. Jordan can be contacted at 608-252-9358 or at jkl@dewittross.com. 

The PDPW Capitol Link is sponsored by DeWitt Ross & Stevens law firm. DeWitt Ross & Stevens is a Wisconsin law firm whose members are leaders in their areas of practice and in their communities. Founded in 1903, today there are more than 80 attorneys in their Madison and Milwaukee offices. Nominated by peers as top lawyers nationally and locally, DeWitt's attorneys offer numerous services including strategic counseling, advocacy, collaboration, alternative dispute resolution, negotiation, mediation, lobbying, and litigation. For more information about DeWitt Ross & Stevens, go to www.dewittross.com.
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