AB756: Bill Text

AB756,113 Section 113 . 293.43 (3) of the statutes is created to read:

AB756,30,12 293.43 (3) Timing of notice and of hearing; giving of notice. (a) If it is determined that a statement under s. 1.11 is not required, the hearing shall be scheduled for a date not less than 60 days nor more than 90 days after the announcement of that determination, and the scheduling and providing of notice shall be completed not later than 10 days following the announcement. Notice of the hearing shall be given by mailing a copy of the notice to any known state agency required to issue a permit for the proposed operation, to the regional planning commission for the affected area, to the county, city, village, and town within which any part of the affected area lies, to all persons who have requested this notification and, if applicable, to all persons specified under par. (b) 3. and s. 281.35 (5) (b) and (6) (f). Written comments may be submitted to the department within 30 days of the date of notice.

AB756,30,24 (b) If it is determined that a statement under s. 1.11 is required, or if an environmental impact statement is required under s. 293.39, the department shall hold at least one informational meeting regarding the preliminary environmental report within 60 days of its issuance. The meeting shall be held not sooner than 30 days nor later than 60 days after the issuance of the report. The scheduling and providing of notice of the meeting shall be completed not later than 10 days following the issuance of the preliminary environmental report. A hearing referred to under sub. (1m) shall be scheduled for a date not less than 120 days nor more than 180 days after the issuance of the environmental impact statement. The scheduling and providing of notice of the hearing shall be completed within 30 days from the date of issuance of the environmental impact statement. The providing of notice shall be accomplished by doing all of the following:

AB756,31,7 1. Mailing a copy of the notice to all known departments and agencies required to grant any permit necessary for the proposed operation, to any regional planning commission within which the affected area lies, to the governing bodies of all towns, villages, cities and counties within which any part of the proposed prospecting or mining site lies, to the governing bodies of any towns, villages, or cities contiguous to any town, village, or city within which any part of the proposed prospecting or mining site lies and to any interested persons who have requested such notification.

AB756,31,14 2. Publication of a class 2 notice, under ch. 985, utilizing a display advertising format, in the weekly newspaper published in the closest geographic proximity to the proposed prospecting or mining site, in the newspaper having the largest circulation in the county within which the proposed site lies, and in those newspapers published in counties contiguous to the county within which the proposed site lies that have a substantial circulation in the area of, or adjacent to, the proposed prospecting or mining site.

AB756,31,20 3. Mailing a copy of the notice to the U.S. environmental protection agency, U.S. army corps of engineers, and other states potentially affected by the proposed discharge if a water discharge permit under ch. 283 is to be considered at the hearing under this section and to the U.S. environmental protection agency and appropriate agencies in other states that may be affected if an air pollution control permit under ch. 285 is to be considered at the hearing under this section.

AB756,31,25 (c) Written comments may be submitted by any governmental agency within 80 days of the date of issuance of the statement under par. (b). Individual persons may submit written comments within 120 days of the date of issuance of the statement. The last day for receipt of comments shall be specified by the department in all notices.

AB756,114 Section 114. 293.43 (3m) of the statutes is repealed.

AB756,115 Section 115 . 293.43 (4) of the statutes is created to read:

AB756,32,9 293.43 (4) Participation by local governments. Any county, town, village, or city receiving notice of the filing of an application in the manner provided under sub. (3) (a) or (b) shall refer the application and reclamation plan to a committee established under s. 293.33 (1) or (2), if any, for review and comment. Such counties, towns, villages, or cities may participate as a party in the hearing on the application and may make recommendations on the reclamation plan and future use of the project site.

AB756,116 Section 116 . 293.43 (4m) of the statutes is repealed.

AB756,117 Section 117 . 293.43 (5) of the statutes is created to read:

AB756,32,20 293.43 (5) Hearing procedure. (a) At the opening of the hearing, the hearing examiner shall advise all persons present of their right to express their views either orally or in writing, under oath or otherwise, and of the legal effect of each form of testimony. All interested persons, at the hearing or at a time set prior to the hearing, shall be given an opportunity, subject to reasonable limitations on the presentation of repetitious or irrelevant material, to express their views on any aspect of the matters under consideration. The presentation of these views need not be under oath nor subject to cross-examination. A written record of unsworn testimony shall be made.

AB756,32,24 (b) Persons who wish to participate as parties shall file a written notice with the hearing examiner setting forth their interest at least 30 days prior to the scheduled time of the hearing or prior to the scheduled time of any prehearing conference, whichever is earlier, unless good cause is shown.

AB756,33,4 (c) The record shall consist of the contested case portion of the proceeding. Views given under par. (a) and all written comments submitted from any source shall be placed in the file of the proceeding and shall be given appropriate probative value by the hearing examiner or decisionmaker.

AB756,33,5 (d) Hearings conducted under this section may be continued for just cause.

AB756,33,12 (e) If evidence of conformance with applicable zoning ordinances as required by s. 293.49 (1) (a) 6. is not presented by the time testimony is completed, the department shall close the record and continue the hearing. The duration of the continuance of the hearing shall be specified by the department at the time the continuance begins, after first requesting the applicant to state the anticipated time at which the evidence will be provided. The continuance may be extended by the department prior to its expiration upon notice to all parties if good cause is shown.

AB756,33,15 (f) Each approval or denial of a license or permit considered at the hearing under this section shall be made in findings of fact, conclusions of law, and an order setting forth reasons with clarity and in detail.

AB756,118 Section 118. 293.47 (1) (b) of the statutes is amended to read:

AB756,33,21 293.47 (1) (b) “Geologic information" means information concerning descriptions of a nonferrous an ore body, descriptions of reserves, tonnages, and grades of nonferrous ore, descriptions of a drill core or bulk sample including analysis, and descriptions of drill hole depths, distances, and similar information related to the nonferrous ore body.

AB756,119 Section 119 . 293.49 (1) (a) (intro.) of the statutes is amended to read:

AB756,33,25 293.49 (1) (a) (intro.) Except as provided in sub. (2) and s. 293.50 and except with respect to property specified in s. 41.41 (11), within 90 days of the completion of the public hearing record, the department shall issue the mining permit if it finds:

AB756,120 Section 120. 293.49 (1) (a) 2m. of the statutes is repealed.

AB756,121 Section 121 . 293.495 of the statutes is repealed.

AB756,122 Section 122 . 293.50 of the statutes is created to read:

AB756,34,5 293.50 Additional requirements on issuance of permits for mining of sulfide ore bodies. (1) In this section:

AB756,34,11 (a) “Pollution" means degradation that results in any violation of any environmental law as determined by an administrative proceeding, civil action, criminal action or other legal proceeding. For the purpose of this paragraph, issuance of an order or acceptance of an agreement requiring corrective action or a stipulated fine, forfeiture, or other penalty is considered a determination of a violation, regardless of whether there is a finding or admission of liability.

AB756,34,13 (b) “Sulfide ore body" means a mineral deposit in which metals are mixed with sulfide minerals.

AB756,34,15 (2) The department may not issue a permit under s. 293.49 for the purpose of the mining of a sulfide ore body until all of the following conditions are satisfied:

AB756,34,21 (a) The department determines, based on information provided by an applicant for a permit under s. 293.49 and verified by the department, that a mining operation has operated in a sulfide ore body which, together with the host rock, has a net acid generating potential in the United States or Canada for at least 10 years without the pollution of groundwater or surface water from acid drainage at the tailings site or at the mine site or from the release of heavy metals.

AB756,35,2 (b) The department determines, based on information provided by an applicant for a permit under s. 293.49 and verified by the department, that a mining operation that operated in a sulfide ore body which, together with the host rock, has a net acid generating potential in the United States or Canada has been closed for at least 10 years without the pollution of groundwater or surface water from acid drainage at the tailings site or at the mine site or from the release of heavy metals.

AB756,35,8 (2m) (a) The department may not base its determination under sub. (2) (a) or (b) on any mining operation that has been listed on the national priorities list under 42 USC 9605 (a) (8) (B) or any mining operation for which the operator is no longer in business and has no successor that may be liable for any contamination from the mining operation and for which there are no other persons that may be liable for any contamination from the mining operation.

AB756,35,13 (b) The department may not base its determination under sub. (2) (a) or (b) on a mining operation unless the department determines, based on relevant data from groundwater or surface water monitoring, that the mining operation has not caused significant environmental pollution, as defined in s. 293.01 (4), from acid drainage at the tailings site or at the mine site or from the release of heavy metals.

AB756,35,15 (3) This section applies without regard to the date of submission of the permit application.

AB756,123 Section 123 . 293.51 (title) of the statutes is amended to read:

AB756,35,17 293.51 (title) Bonds and other security.

AB756,124 Section 124. 293.51 (1) of the statutes is amended to read:

AB756,36,9 293.51 (1) Upon notification that an application for a prospecting or mining permit has been approved by the department but prior to commencing prospecting or mining, the operator shall file with the department a bond conditioned on faithful performance of all of the requirements of this chapter and all rules adopted by the department under this chapter. The bond shall be furnished by a surety company licensed to do business in this state. In lieu of a bond, the operator may deposit cash, certificates of deposit, or government securities with the department. Interest received on certificates of deposit and government securities shall be paid to the operator. The amount of the bond or other security required shall be equal to the estimated cost to the state of fulfilling the reclamation plan, in relation to that portion of the site that will be disturbed by the end of the following year. The estimated cost of reclamation of each prospecting or mining site shall be determined by the department on the basis of relevant factors including, but not limited to, expected changes in the price index, topography of the site, methods being employed, depth and composition of overburden and depth of nonferrous metallic mineral deposit being mined.

AB756,125 Section 125 . 293.51 (1g) of the statutes is repealed.

AB756,126 Section 126 . 293.51 (1m) of the statutes is repealed.

AB756,127 Section 127 . 293.51 (1r) of the statutes is repealed.

AB756,128 Section 128 . 293.51 (3) of the statutes is amended to read:

AB756,36,17 293.51 (3) Upon approval of the operator's bond or other security under subs. (1), (1g), (1m), and (1r), mining application, and certificate of insurance, the department shall issue written authorization to commence mining at the permitted mining site in accordance with the approved mining and reclamation plans.

AB756,129 Section 129 . 293.51 (5) of the statutes is repealed.

AB756,130 Section 130 . 293.55 (1) (c) of the statutes is amended to read:

AB756,36,23 293.55 (1) (c) Substantial changes. The department shall determine if any change in the mining or reclamation plans is substantial and provide notice of its determination in the same manner as specified under s. 293.43 (2m) (b) (3) (b) 1. to 3.

AB756,131 Section 131 . 293.55 (1) (d) of the statutes is amended to read:

AB756,37,6 293.55 (1) (d) Notice. The department shall provide notice of any modification which involves an increase or decrease in the area of a mining site or a substantial change in the mining or reclamation plan in the same manner as an original application for a mining permit under s. 293.43 (2m) (3). If 5 or more interested persons do not request a hearing in writing within 30 days of notice, no hearing is required on the modification. The notice shall include a statement to this effect.

AB756,132 Section 132. 293.65 (3) (a) of the statutes is amended to read:

AB756,37,12 293.65 (3) (a) An approval under s. 281.34 is required to withdraw groundwater for prospecting or mining or to dewater mines if the capacity and rate of withdrawal of all wells involved in the withdrawal of groundwater or the dewatering of mines exceeds 100,000 gallons each day. A permit under s. 283.31 is required to discharge pollutants resulting from the dewatering of mines.

AB756,133 Section 133 . 293.65 (3) (b) of the statutes is amended to read:

AB756,38,10 293.65 (3) (b) The department may not issue an approval under s. 281.34 if the withdrawal of groundwater for prospecting or mining purposes 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. No withdrawal of groundwater for prospecting or mining purposes or the dewatering of mines may be made to the unreasonable detriment of public or private water supplies or the unreasonable detriment of public rights in the waters of the state. Notwithstanding any limitation on approval conditions in s. 281.34, if the department determines that a proposed withdrawal of groundwater or 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 the department shall include conditions in the mining or prospecting permit or in an approval issued under s. 281.34 to ensure that the withdrawal or dewatering will not result in the unreasonable detriment of public or private water supplies or the unreasonable detriment of public rights in the waters of the state. These conditions may include a requirement that the applicant for the mining or prospecting permit or approval under s. 281.34 provide a replacement water supply of similar quality, provide an increased amount of water to the water supply, or temporarily augment the quantity of water in, or flowing into or from, the affected waters of the state that is of substantially similar quality and that has substantially similar characteristics to the water that was in the affected waters of the state before any proposed mining or prospecting activity began.

AB756,134 Section 134 . 293.66 of the statutes is repealed.

AB756,135 Section 135 . 293.81 of the statutes is amended to read:

AB756,39,3 293.81 Exploring, bulk sampling, prospecting, and mining without authorization. Any person who engages in exploration without a license or bulk sampling without the necessary license or approvals shall forfeit not less than $100 nor more than $1,000 for each parcel as defined under s. 293.21 (1) (b) on which unlicensed exploration or bulk sampling without the necessary license or approvals took place. Any person who authorizes or engages in prospecting without a prospecting permit or any operator who authorizes or engages in mining without a mining permit and written authorization to mine under s. 293.51 (3) shall forfeit all profits obtained from such illegal activities and not more than $10,000 for each day during which the mine was in operation. The operator shall be liable to the department for the full cost of reclaiming the affected area of land and any damages caused by the mining operation. Each day's violation of this section shall be deemed a separate offense. If the violator is a corporation, limited liability company, partnership or association, any officer, director, member, manager or partner who knowingly authorizes, supervises or contracts for exploration, bulk sampling, prospecting, or mining shall also be subject to the penalties of this section.

AB756,136 Section 136. 293.86 of the statutes is amended to read:

AB756,39,16 293.86 Visitorial powers of department. Any duly authorized officer, employee or representative of the department may enter and inspect any property, premises or place on or at which any prospecting or metallic mining operation or facility is located or is being constructed or installed at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and chs. 281, 285, 289 to 292, 295, and 299, subchs. I and II of ch. 295, and rules adopted pursuant thereto. No person may refuse entry or access to any such authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials, nor may any person obstruct, hamper or interfere with any such inspection. The department shall furnish to the prospector or operator, as indicated in the prospecting or mining permit, a written report setting forth all observations, relevant information and data which relate to compliance status.

AB756,137 Section 137 . 293.95 of the statutes is repealed and recreated to read:

AB756,39,19 293.95 Review. Any person aggrieved by any decision of the department under this chapter may obtain its review under ch. 227.

AB756,138 Section 138. Chapter 295 (title) of the statutes is amended to read:

AB756,39,21 CHAPTER 295

AB756,39,23 NONMETALLIC MINING RECLAMATION; OIL AND GAS; FERROUS METALLIC MINING

AB756,139 Section 139. 295.16 (4) (f) of the statutes is amended to read:

AB756,40,2 295.16 (4) (f) Any mining operation, the reclamation of which is required in a permit obtained under ch. 293 or subch. III of ch. 295.

AB756,140 Section 140. Subchapter III of chapter 295 [precedes 295.40] of the statutes is repealed.

AB756,141 Section 141. 299.85 (7) (a) 2. and 4. of the statutes are amended to read:

AB756,40,19 299.85 (7) (a) 2. Notwithstanding minimum or maximum forfeitures specified in ss. 29.314 (7), 29.334 (2), 29.604 (5) (a), 29.611 (11), 29.889 (10) (c) 2., 29.969, 29.971 (1) (a), (1m) (a), (3), (3m), (11g) (b), (11m) (b), and (11r) (b), 30.298 (1), (2), and (3), 30.49 (1) (a) and (c), 31.23 (2), 281.75 (19), 281.98 (1), 281.99 (2) (a) 1., 283.91 (2), 285.41 (7), 285.57 (5), 285.59 (8), 285.87 (1), 287.95 (1), (2) (b), and (3) (b), 287.97, 289.96 (2) and (3) (a), 291.97 (1), 292.99 (1) and (1m), 293.81, 293.87 (3) and (4) (a), 295.19 (3) (a) and (b) 1., 295.37 (2), 295.79 (2) and (4), 299.15 (4), 299.51 (5), 299.53 (4) (c) 1., 299.62 (3) (a) and (c), and 299.97 (1), if a regulated entity that qualifies under sub. (2) for participation in the Environmental Compliance Audit Program corrects violations that it discloses in a report that meets the requirements of sub. (3) within 90 days after the department receives the report that meets the requirements of sub. (3), the regulated entity may not be required to forfeit more than $500 for each violation, regardless of the number of days during which the violation continues.

AB756,41,5 4. Notwithstanding minimum or maximum forfeitures specified in ss. 29.314 (7), 29.334 (2), 29.604 (5) (a), 29.611 (11), 29.889 (10) (c) 2., 29.969, 29.971 (1) (a), (1m) (a), (3), (3m), (11g) (b), (11m) (b), and (11r) (b), 30.298 (1), (2), and (3), 30.49 (1) (a) and (c), 31.23 (2), 281.75 (19), 281.98 (1), 281.99 (2) (a) 1., 283.91 (2), 285.41 (7), 285.57 (5), 285.59 (8), 285.87 (1), 287.95 (1), (2) (b), and (3) (b), 287.97, 289.96 (2) and (3) (a), 291.97 (1), 292.99 (1) and (1m), 293.81, 293.87 (3) and (4) (a), 295.19 (3) (a) and (b) 1., 295.37 (2), 295.79 (2) and (4), 299.15 (4), 299.51 (5), 299.53 (4) (c) 1., 299.62 (3) (a) and (c), and 299.97 (1), if the department approves a compliance schedule under sub. (6) and the regulated entity corrects the violations according to the compliance schedule, the regulated entity may not be required to forfeit more than $500 for each violation, regardless of the number of days during which the violation continues.

AB756,142 Section 142. 299.95 of the statutes is amended to read:

AB756,41,23 299.95 Enforcement; duty of department of justice; expenses. The attorney general shall enforce chs. 281 to 285 and 289 to 295 and this chapter, except ss. 285.57, 285.59, and 299.64, and all rules, special orders, licenses, plan approvals, permits, and water quality certifications of the department, except those promulgated or issued under ss. 285.57, 285.59, and 299.64 and except as provided in ss. 281.36 (14) (f), 285.86 and 299.85 (7) (am). Except as provided in s. 295.79 (1), the The circuit court for Dane county or for any other county where a violation occurred in whole or in part has jurisdiction to enforce chs. 281 to 285 and 289 to 295 or this chapter or the rule, special order, license, plan approval, permit, or certification by injunctional and other relief appropriate for enforcement. For purposes of this proceeding where chs. 281 to 285 and 289 to 295 or this chapter or the rule, special order, license, plan approval, permit or certification prohibits in whole or in part any pollution, a violation is considered a public nuisance. The department of natural resources may enter into agreements with the department of justice to assist with the administration of chs. 281 to 285 and 289 to 295 and this chapter. Any funds paid to the department of justice under these agreements shall be credited to the appropriation account under s. 20.455 (1) (k).

AB756,143 Section 143. 323.60 (1) (gm) of the statutes is repealed.

AB756,144 Section 144. 323.60 (5) (d) 3. of the statutes is amended to read:

AB756,42,10 323.60 (5) (d) 3. All facilities with 10 or more employees in major group classifications 10 to 13 in the standard industrial classification manual, 1987 edition, published by the U.S. office of management and budget, at which a toxic chemical is used at or above an applicable threshold quantity, except that compliance with the toxic chemical release form requirements under this subdivision is not required for the placement of a toxic chemical in a storage or disposal site or facility that is located at a facility with a permit under ch. 293 or a mining permit under subch. III of ch. 295 if the toxic chemical consists of or is contained in merchantable by-products, as defined in s. 293.01 (7) or 295.41 (25), minerals, as defined in s. 293.01 (8), or refuse, as defined in s. 293.01 (25) or 295.41 (41).

AB756,145 Section 145. 706.01 (9) of the statutes is amended to read:

AB756,42,13 706.01 (9) “Mining company" means any person or agent of a person who has a prospecting permit under s. 293.45 or a mining permit under s. 293.49 or 295.58.

AB756,146 Section 146. 710.02 (2) (d) of the statutes is amended to read:

AB756,42,16 710.02 (2) (d) An exploration mining lease as defined in s. 107.001 (1) and land used for mining and associated activities under chs. 293 and 295.

AB756,147 Section 147. 2013 Wisconsin Act 1, section 103 is repealed.

AB756,148 Section 148 . NR 132.06 (4) of the administrative code is created to read:

AB756,43,10 NR 132.06 (4) The department has been directed, pursuant to ch. 421, laws of 1977, to assure that mining activities conducted in this state result in a minimization of disturbance to wetlands. The legislature has also directed, in ch. 377, laws of 1977, that department rules relating to metallic mining wastes take into consideration the special requirements of metallic mining operations in the location, design, construction, operation and maintenance of sites and facilities for the disposal of such wastes as well as any special environmental concerns that will arise as a result of the disposal of the same. The department has established, in s. NR 1.95 an overall framework for its decisions affecting wetlands. It is, therefore, the intent of this subsection to implement these directives recognizing that, depending on the location and site conditions involved in a particular case, it may be relatively easy to avoid entirely the use of wetlands in some cases while being virtually impossible to avoid their limited and carefully contemplated use in others and that the goal of the siting process shall be the selection of sites that are most favorable taking into account all pertinent factors. For purposes, therefore, of administering these directives and rules and acting on permits, licenses and approvals, the following standards shall be applied:

AB756,43,14 (a) The objective of the applicant's site selection process for mining facilities, and for the disposal or storage of wastes or materials produced by such activities, shall be the selection of a viable site that would result in the least overall adverse environmental impact.

AB756,43,21 (b) The applicant's site selection process shall include the identification and analysis of various alternatives so that a legitimate comparison between the most viable sites can be made by the department, realizing that a comparison will be made between several sites, all of which may have some imperfections with regard to environmental acceptability and none of which, in some cases, may be found to be environmentally acceptable as a result of compliance with s. 1.11, Stats., and other applicable Wisconsin laws.

AB756,44,6 (c) To ensure compliance with the requirement to minimize the disturbance of wetlands, the applicant shall identify and the department shall analyze viable sites which would result in the least overall adverse environmental impact and which would also avoid the use of any wetlands. If such sites avoiding the use of wetlands cannot be identified pursuant to the standards in this subsection, then the applicant shall identify and the department shall analyze those viable sites which would result in the least overall adverse environmental impact and which would also utilize, consistent with minimizing total environmental impacts, the least acreage and the least valuable wetlands directly and which would cause the least adverse impact on the wetlands and waters of the state outside the proposed area of use.

AB756,44,11 (d) The use of wetlands for mining activities, including the disposal or storage of mining wastes or materials, or the use of other lands for such uses which would have a significant adverse effect on wetlands, are presumed to be unnecessary unless the applicant demonstrates, taking into account economic, environmental, technical, recreational and aesthetic factors, that the site proposed for use:

AB756,44,12 1. Constitutes a viable site;

AB756,44,14 2. Is the alternative which causes the least overall adverse environmental impact;

AB756,44,21 3. Will be used in a manner so as to minimize the loss of wetlands functions which those wetlands may serve with respect to related wetlands or other waters of the state, or both, outside the proposed area of use. As used in this paragraph, a presumption shall not be construed to be a prohibition, but rather the creating of a burden of proof on the applicant to demonstrate by the preponderance of evidence that it has complied with all the siting principles and standards of this subsection. As used in this section, viable means technically and economically feasible.

AB756,45,12 (e) With respect to mining activities sited, in whole or in part, in wetlands and predating these rules as well as ch. 377, laws of 1977, the use of such wetlands for such activities shall be deemed necessary hereunder and the site of such use shall be deemed a viable site. The standards of minimization herein established to the extent applicable to such preexisting activities by reason of s. 293.13 (2) (c) 8., Stats., shall be so applicable only to the extent specified in s. 293.91 (2), Stats. Furthermore, any additional activities undertaken in wetlands by an applicant subsequent to the effective date of these rules, which additional activities are undertaken to bring activities of the applicant, which were sited in wetlands prior to these rules, into prompt compliance with chs. 30, 281 and 283, Stats., as well as regulations, orders and decisions thereunder, shall be deemed to be necessary so long as the applicant demonstrates that, taking into account economic, environmental, technical, recreational and aesthetic factors, the site proposed for use by such additional activities will be used in a manner so as to minimize the loss of wetlands and the net loss of functions which those wetlands may serve with respect to related wetlands or other waters of the state, or both, outside the proposed area of use.

AB756,45,15 (f) The department shall give special consideration to a site where it finds that the degree of necessary improvement is of such extent and expense that compliance cannot be accomplished without affecting wetlands.