2017 Special Session
2017 - 2018 LEGISLATURE
Nonferrous metallic mining regulations
Preliminary Draft - Not Ready For Introduction
November 3, 2017 - Printed by direction of Senate Chief Clerk.
1An Act to repeal
227.42 (4), 293.43 (2), 293.43 (3), 293.43 (4), 293.43 (5) and 2
293.50; to amend
20.370 (2) (gh), 70.375 (2) (b), 70.375 (4) (h), 281.35 (5) (e), 3
283.84 (3m), 293.01 (9), 293.01 (18), 293.13 (2) (b) (intro.), 293.13 (2) (b) 4., 4
293.13 (2) (b) 7., 293.13 (2) (c) (intro.), 293.13 (2) (c) 7., 293.15 (8), 293.31 (title), 5
293.31 (1), 293.31 (2), 293.31 (3), 293.31 (4), 293.43 (1), 293.43 (1m) (b), 293.49 6
(1) (a) (intro.), 293.51 (title), 293.51 (3), 293.55 (1) (c), 293.55 (1) (d), 293.65 (3) 7
(b) and 293.81; to repeal and recreate
293.01 (2m), 8
293.15 (7m), 293.26, 293.31 (4m), 293.32 (4), 293.37 (5), 293.40, 293.43 (2m), 9
293.43 (3m), 293.43 (4m), 293.49 (1) (a) 2m., 293.495, 293.51 (1g), 293.51 (1m), 10
293.51 (1r), 293.51 (5) and 293.66 of the statutes; relating to: the regulation
11of nonferrous metallic mining, prospecting, exploration, and bulk sampling,
1repealing administrative rules relating to wetlands, granting rule-making
2authority, and making an appropriation.
Analysis by the Legislative Reference Bureau
The text of Engrossed 2017 Assembly Bill 499, as passed by the assembly on
November 2, 2017, consists of the following documents adopted in the assembly on
November 2, 2017: the bill as affected by Assembly Amendments 1, 2, 3, 4, 5, 6, and
9. The text also includes the November 6, 2017, chief clerk's corrections to Assembly
Amendments 1, 5, and 6 of 2017 Assembly Bill 499.
Content of Engrossed 2017 Assembly Bill 499:
This bill makes changes in the laws relating to the regulation and permitting
of nonferrous metallic mineral prospecting and mining. Nonferrous metallic
minerals are metallic minerals other than iron, such as copper or zinc. Under current
law, the Department of Natural Resources regulates exploration, prospecting, and
mining for nonferrous metallic minerals.
Sulphide ore moratorium
This bill repeals the existing prohibition on issuing sulfide ore mining permits.
Current law prohibits DNR from issuing any permits for the purpose of mining a
sulfide ore body until DNR determines that 1) there is a mining operation in a
potentially acid-generating sulfide ore body in the United States or Canada that has
been in operation for at least ten years without resulting in the pollution of
groundwater or surface water from acid drainage or from the release of heavy metals;
and 2) there is a mining operation that operated in a potentially acid-generating
sulfide ore body in the United States or Canada that has been closed for at least ten
years without resulting in the pollution of groundwater or surface water from acid
drainage or from the release of heavy metals.
Point of application for groundwater standards
This bill also makes changes to the locations at which groundwater standards
may apply at nonferrous metallic mining and prospecting sites. The bill does not
make changes to numerical groundwater standards.
Under current law, DNR establishes enforcement standards for certain
substances that contaminate groundwater. When determining whether a
groundwater enforcement standard at certain facilities, including mining or
prospecting operations, has been met or exceeded, the enforcement standard may
apply at any point beyond a three-dimensional design management zone (DMZ)
established by DNR by rule. Under DNR's current rules, for a nonferrous metallic
mining site the DMZ extends vertically from the land surface through all saturated
This bill requires DNR, for each mining or prospecting site, to determine the
depth in the Precambrian bedrock below which the groundwater is not reasonably
capable of being used for human consumption and is not hydrologically connected to
other sources of groundwater that are suitable for human consumption. Under the
bill, for a nonferrous metallic mining or prospecting site, DNR may not apply
groundwater enforcement standards at any point deeper than that identified depth
for the site.
Pursuant to the laws of 1977, DNR promulgated rules designed to ensure that
metallic mining activities would result in a minimization of disturbance to wetlands
while taking into consideration the fact that, in siting some mining operations, it
may be virtually impossible to avoid impacts to wetlands. To help weigh and evaluate
these competing considerations when reviewing proposed sites for mining
operations, DNR promulgated section NR 132.06 (4) of the Wisconsin Administrative
Code. This section was later modified to apply only to nonferrous metallic mining.
After section NR 132.06 (4) was promulgated, this state enacted section 281.36
of the statutes, which requires DNR to issue wetland permits, in a manner consistent
with the federal Clean Water Act, for any activity that may affect wetlands, including
nonferrous metallic mining operations. This bill repeals section NR 132.06 (4) of the
administrative code. As a result, the only provisions that DNR may apply in
evaluating a proposed site for a prospecting or mining operation are those contained
in s. 281.36 and in rules promulgated under that section and under other provisions
under current law.
This bill creates a separate process for engaging in bulk sampling for
nonferrous metallic minerals. Current law regulates activities relating to
nonferrous metallic minerals differently depending on whether the activity involves
exploration, prospecting, or mining. Under current law, a person who wants to
engage in exploration for nonferrous metallic minerals must first obtain a license
from DNR. Exploration consists of drilling holes that are less than 18 inches in
diameter into the surface of an area to search for nonferrous metallic minerals.
Current law also provides that a person may not prospect for nonferrous metallic
minerals without a prospecting permit from DNR. Prospecting means examining an
area to determine the quality and quantity of nonferrous metallic minerals by means
other than drilling, for example by excavating. Under current law, the process for
obtaining a prospecting permit is similar to the process for obtaining a mining
permit. When a person completes a prospecting operation, the person must conduct
reclamation, which means rehabilitation of the site to either its original state or, if
that is not feasible, to a state that provides long-term environmental stability.
The bill defines “bulk sampling” as excavating in a potential mining site by
removing less than 10,000 tons of material, including overburden and any other
material removed from any portion of the excavation site, to assess the quality and
quantity of nonferrous metallic mineral deposits and to collect and analyze data to
prepare an application for a mining permit or other approval. Under the bill, bulk
sampling does not constitute prospecting, and prospecting activities do not include
The bill requires a person to obtain a bulk sampling license and any other
permit, license, or approval required by DNR before engaging in bulk sampling.
Under the bill, a person who intends to engage in bulk sampling must file a bulk
sampling plan with DNR. A person who files a bulk sampling plan must 1) describe
the bulk sampling site and the methods to be used for bulk sampling; 2) submit a plan
for controlling surface erosion that identifies how adverse impacts to plant and
wildlife habitats will be avoided or minimized; 3) submit a plan for revegetation that
describes how adverse environmental impacts will be avoided or minimized; 4)
provide the estimated time for completing bulk sampling and revegetation of the site;
5) describe any known adverse environmental impacts that are likely to be caused
by bulk sampling and how those impacts will be avoided or minimized; and 6)
describe any adverse effects that the bulk sampling might have on any historic
property or on any scenic or recreational areas and plans to avoid or minimize those
adverse effects. The bill also requires a person to submit, with the bulk sampling
plan, a $5,000 bond. DNR may require the amount of the bond to be increased if it
is unlikely that the bond will be adequate to fund the state's cost for completing the
The bill requires DNR, within 14 days of receipt of a bulk sampling plan, to
identify in writing any kind of approval that DNR issues that is needed to conduct
the proposed bulk sampling, such as a wastewater discharge permit or a permit for
a discharge into wetlands, and any waivers, exemptions, or exceptions to those
approvals that may be available. The bill also requires a person who has submitted
a bulk sampling plan to submit all applications for approvals and all applications for
waivers, exemptions, or exceptions to approvals for the bulk sampling at one time.
Under the bill, if there are any significant changes to the information provided
in a bulk sampling plan submitted to DNR, the applicant must file a revised bulk
sampling plan. DNR must then provide the applicant with updated information
regarding any approvals or modifications to existing approvals that DNR requires.
The bill specifies deadlines for DNR to act on approvals needed to conduct bulk
sampling. When a person who files a bulk sampling plan applies for an approval or
a waiver, exemption, or exception to an approval, the application is considered to be
complete on the 30th day after DNR receives the application, unless before that day
DNR informs the person that the application is not complete. Once an application
is complete, DNR must act within 30 days on an application for a waiver, exemption,
or exception to an approval, for a determination that an activity is below the
threshold that requires an approval, or for a determination of eligibility for coverage
under a general permit or a registration permit. For other approvals, DNR must act
within 60 days after the application is complete, except that DNR must act on an
approval for an individual permit for which federal law requires an opportunity for
public comment or a hearing, such as a wastewater discharge permit, within 180
days. After all of the required approvals are issued, DNR must then issue the
applicant a bulk sampling license.
The bill provides that DNR is not required to prepare an environmental impact
statement (EIS) for an approval required for bulk sampling or for a bulk sampling
license. The bill also requires DNR to act on any required construction site erosion
control or storm water management approval required for bulk sampling, even if
DNR has authorized a local program to issue approvals for construction site erosion
control or storm water management.
Finally, the bill provides that DNR may revoke or suspend a bulk sampling
license if it determines, after a hearing, that the license holder has failed to comply
with any law, DNR rule, or license term, or has failed to increase the amount of any
bond required for bulk sampling.
Financial assurance requirements
Under current law, an operator of a nonferrous mining or prospecting operation
must file a bond, cash, certificates of deposit, or government securities with DNR to
ensure that the operator will be able to cover the cost of the reclamation plan for the
mining or prospecting site. An operator must also maintain proof of financial
responsibility for complying with the long-term care requirements of the mining or
prospecting site after the site is closed. Under rules promulgated by DNR, an
applicant for a nonferrous metallic mining permit must also create and maintain an
irrevocable trust in perpetuity to ensure the availability of funds for preventative
and remedial activities, such as responding to a spill of a hazardous substance at the
This bill limits the forms of proof of financial responsibility for long-term care
that DNR may require to a bond, cash, certificates of deposit, government securities,
or insurance. The bill provides that DNR may not require an operator to provide a
form of financial assurance other than those listed in the statutes.
The bill also requires two additional forms of financial assurance from the
operator of a mine. First, before beginning to mine, the operator must file with DNR
a bond, cash, certificate of deposit, or government security to cover unforeseen
remedial contingencies that are not otherwise covered by the bonds or other security
for remediation and long-term care. The bond or other security for remedial
contingencies must be 10 percent of the total amount of the bonds or other security
for remediation and long-term care, and must be released no later than 40 years
after the operator stops extracting material from the mining site.
Second, at the time of closure of the mining waste site, the operator must
provide DNR with proof of financial responsibility in an amount equal to the
reasonably anticipated costs, for the period running from 40 to 250 years after
closure of the mining waste site, to repair or replace any engineered cover systems
or tailings water management control systems. The proof of financial responsibility
must be in the form of an interest-bearing security or account. At the time that the
mining permit is approved, DNR must determine the amount of the proof of financial
responsibility to be provided and identify the reasonably anticipated costs that the
amount is intended to cover. The operator may use these funds to cover any identified
anticipated cost. DNR must release any remaining funds to the operator after all of
the identified anticipated costs are incurred or after determining that the identified
anticipated costs are no longer applicable.
Application, review, and permitting process
Under current law, a person who proposes to prospect or mine for nonferrous
metallic minerals must obtain a prospecting or mining permit and any other permit,
license, certification, or other authorization (approval) that is required under the
environmental and natural resources laws, for example wastewater discharge
permits, high capacity well approvals, and permits for discharges into wetlands.
This bill makes changes to certain parts of the preapplication, application,
review, and hearing process for these permits and approvals.
Under current law, a person who intends to apply for a permit to prospect or
mine for nonferrous metallic minerals must notify DNR of that intent, and may not
collect data intended to be used to support the application before submitting the
notice of intent to apply. DNR is required to provide public notice when it receives
a notice of intent to apply for a prospecting or mining permit, and is required to
receive and consider public comments within 45 days after giving the public notice.
After considering public comments, DNR must tell the person who filed the notice
of intent what data DNR believes is needed to support an application for a
prospecting or mining permit and the methodologies that must be used to collect that
data, along with certain other information relating to groundwater in the area and
to other approvals that are required for the proposed prospecting or mining project.
This bill requires a person who intends to apply for a prospecting or mining
permit to provide DNR with a notice of intent at least 12 months before filing an
application for a prospecting or mining permit. The bill removes the prohibition on
collecting data before filing the notice of intent to apply. The bill requires DNR, upon
the request of a person who intends to file a notice of intent to apply, to review the
person's proposed methodology for collecting data, and to either approve the
proposed methodology or provide the methodology that DNR requires to be used.
Under the bill, DNR may assess the person a fee to cover DNR's costs in reviewing
or providing these methodologies. The bill also provides that, if DNR holds a public
informational hearing to solicit the required public comments on a notice of intent
to apply, the hearing must be held within the 45-day period for soliciting public
comments. In addition, the bill requires DNR to inform the person within 90 days
after the 45-day period for soliciting public comments of the required data and
methodologies for the application, the information that should be included in the
person's environmental impact report, and the information DNR will need to prepare
an EIS. Under the bill, DNR must begin the process of entering into a memorandum
of understanding with the applicant, the U.S. army corps of engineers, and other
relevant federal agencies before informing the person of the required data and
methodologies for the application and providing the other required information. The
bill provides that such a memorandum of understanding may include an agreement
between DNR and the applicant regarding timelines for the permitting process.
Application process — predictive modeling
Currently, under rules promulgated by DNR, a person who wishes to operate
a solid waste disposal facility for a nonferrous metallic mineral mining operation
must submit information based on predictive modeling to demonstrate that there is
a reasonable certainty that the facility will not violate groundwater quality
standards. This bill provides that, if DNR requires an applicant for a nonferrous
metallic mining permit to conduct modeling to determine whether the proposed
mining operation's waste site complies with groundwater or surface water quality
standards, DNR may not require the applicant to examine a period longer than the
proposed operating period of the waste site plus 250 years.
This bill creates a timeline for DNR to review an application for a prospecting
or mining permit, request additional information from the applicant, and prepare a
draft environmental impact statement, a draft prospecting or mining permit, and
other draft approvals.
Under the bill, DNR has 180 days after an applicant submits an application for
a prospecting or mining permit, an environmental impact report, and any
application for other related approvals, to provide comments and request additional
information. If DNR requests additional information, it has 90 days after the
applicant submits additional information to again provide comments and request
additional information. If DNR requests this additional information, it has 180 days
after the applicant submits additional information to prepare a draft environmental
impact statement, a draft prospecting or mining permit, and any other related draft
approvals. The applicant and DNR may agree to modify all or part of this timeline.
DNR may request additional information after these time periods expire, but may
not delay the application and review process based on a request for additional
If, during the 90-day period described above, the DNR secretary determines
that the applicant has made a substantial modification to the mining or prospecting
plan that significantly changes the information necessary to prepare the
environmental impact statement or adequately review an application, DNR may
request additional information from the applicant. When the applicant submits
additional information, the timeline described above resets and begins again.
Issuing a mining permit — effects on other waters
Under current law, an applicant must obtain an approval for a high capacity
well if the applicant will withdraw groundwater for prospecting or mining or dewater
mines and if the capacity and rate of withdrawal or dewatering exceeds 100,000
gallons each day. Current law prohibits DNR from issuing an approval for a high
capacity well if the withdrawal of groundwater or the dewatering of mines will result
in the unreasonable detriment of public or private water supplies or the
unreasonable detriment of public rights in the waters of the state.
Under this bill, if DNR determines that the withdrawal of groundwater or the
dewatering of mines will result in the unreasonable detriment of public or private
water supplies or the unreasonable detriment of public rights in the waters of the
state, DNR must include conditions in the high capacity well approval or in the
prospecting or mining permit to ensure that those detriments will not occur. These
conditions may include a requirement that the applicant provide a replacement
water supply or temporarily augment the quantity of water in, or flowing into or
from, the affected body of water.