Chapter 295

295.57 History History: 2013 a. 1; 2015 a. 196.

295.58 295.58 Mining; department grant or denial of permit.

295.58(1) (1) Criteria for approval.

295.58(1)(a) (a) Except as provided in sub. (2) and except with respect to property specified in s. 41.41 (11), the department shall issue a mining permit if it finds all of the following:

295.58(1)(a)1. 1. That the mining plan and reclamation plan are reasonably certain to result in reclamation of the mining site consistent with this subchapter.

295.58(1)(a)2. 2. That the waste site feasibility study and plan of operation complies with s. 295.51.

295.58(1)(a)3. 3. That the applicant has committed to conducting the proposed mining in compliance with the mining permit and any other approvals issued for the mining.

295.58(1)(a)3m. 3m. That the proposed mining is likely to meet or exceed the requirements of any municipal floodplain zoning ordinance applicable to the proposed mining under s. 295.607 (3) to the extent that the ordinance has not been made inapplicable to the proposed mining by a local agreement under s. 295.443 (1m).

295.58(1)(a)4. 4. That the proposed mining is reasonably certain not to result in substantial adverse impacts to public health, safety, or welfare.

295.58(1)(a)5. 5. That the proposed mining will result in a net positive economic impact in the area reasonably expected to be most impacted by the mining.

295.58(1)(a)6. 6. That the applicant has applied for all necessary zoning approvals applicable to the proposed mining.

295.58(1)(b) (b) The department shall approve or deny an application for a mining permit in writing and shall include the reasons for its decision with clarity and in detail. The department may modify the applicant’s proposed mining plan, reclamation plan, or mining waste site feasibility study and plan of operation in order to meet the requirements of this subchapter, and, as modified, approve the application. The approval of the application for a mining permit constitutes the approval of the mining plan, reclamation plan, and waste site feasibility study and plan of operation. In its decision on the application for a mining permit, the department shall include a final decision on compliance with s. 1.11 and the requirements of s. 295.53, discussing all of the following:

295.58(1)(b)1. 1. Whether the department has considered the environmental impact statement and comments received on it.

295.58(1)(b)2. 2. Whether the department has complied with ss. 1.11 and 295.53.

295.58(1)(b)3. 3. Whether, consistent with social, economic, and other essential considerations, the department has adopted all practicable means within its authority to avoid or minimize any harm to the environment and, if not, why not.

295.58(2) (2) Criteria for denial. The department shall deny the mining permit if it finds any of the following:

295.58(2)(a) (a) That the site is unsuitable for mining.

295.58(2)(b) (b) That the proposed mining may reasonably be expected to create any of the following situations:

295.58(2)(b)1. 1. Hazards resulting in irreparable, substantial physical damage to any of the following that cannot be prevented under the requirements of this subchapter, avoided to the extent practicable by removal from the area of hazard, or offset by purchase or by obtaining the consent of the owner:

295.58(2)(b)1.a. a. A dwelling house.

295.58(2)(b)1.b. b. A public building.

295.58(2)(b)1.c. c. A school.

295.58(2)(b)1.d. d. A church.

295.58(2)(b)1.e. e. A cemetery.

295.58(2)(b)1.f. f. A commercial or institutional building.

295.58(2)(b)1.g. g. A public road.

295.58(2)(b)2. 2. Irreparable substantial environmental damage to lake or stream bodies despite adherence to the requirements of this subchapter. This subdivision does not apply to an activity that the department has authorized under statute, except that the destruction or filling in of a lake bed may not be authorized unless it is authorized under s. 295.60, 295.605, or 295.61.

295.58(2)(b)3. 3. Landslides or substantial deposition from the proposed mining operation in stream or lake beds which cannot feasibly be prevented and which have not been authorized under s. 295.60 or 295.605.

295.58(2)(c) (c) That the applicant has violated, and continues to fail to comply with, this subchapter.

295.58(2)(d) (d) Subject to sub. (3), that the applicant, principal shareholder of the applicant, or a related person has within 10 years before the application is submitted forfeited a mining reclamation bond that was posted in accordance with a permit or other authorization for a mining operation in the United States, unless the forfeiture was by agreement with the entity for whose benefit the bond was posted and the amount of the bond was sufficient to cover all costs of reclamation.

295.58(2)(e) (e) Subject to sub. (3), that the applicant, a related person, or an officer or director of the applicant has, within 10 years before the application is submitted, been convicted of more than one felony for violations of laws for the protection of the natural environment arising out of the operation of a mining site in the United States, unless one of the following applies:

295.58(2)(e)1. 1. The person convicted has been pardoned for all of the felonies.

295.58(2)(e)2. 2. The person convicted is a related person or an officer or director of the applicant with whom the applicant terminates its relationship.

295.58(2)(e)3. 3. The applicant included in its permit application under s. 295.47 a plan to prevent the occurrence in this state of events similar to the events that directly resulted in the convictions.

295.58(2)(f) (f) Subject to sub. (3), that the applicant or a related person has, within 10 years before the application is submitted, declared bankruptcy or undergone dissolution that resulted in the failure to reclaim a mining site in the United States in violation of a state or federal law and that failure has not been remedied and is not being remedied.

295.58(2)(g) (g) Subject to sub. (3), that, within 10 years before the application is submitted, a mining permit or other authorization for mining issued to the applicant or a related person was permanently revoked because of a failure to reclaim a mining site in the United States in violation of state or federal law and that failure has not been and is not being remedied.

295.58(3) (3) Exception from denial criteria. The department may not deny a mining permit under sub. (2) (d) to (g) if the person subject to the convictions, forfeiture, permanent revocation, bankruptcy, or dissolution is a related person but the applicant shows that the person was not the parent corporation of the applicant, a person that holds more than a 30 percent ownership in the applicant, or a subsidiary or affiliate of the applicant in which the applicant holds more than a 30 percent interest at the time of the convictions, forfeiture, permanent revocation, bankruptcy, or dissolution.

295.58(4) (4) Statement. The department shall send a statement as to whether the applicant has satisfied the requirements of this subchapter to the applicant and to the other persons specified in s. 295.57 (4) (b) 1. to 9.

295.58(5) (5) Duration of approvals.

295.58(5)(a) (a) A mining permit is valid for the life of the mining project, subject to the enforcement provisions under s. 295.79.

295.58(5)(b) (b) An approval under s. 295.60 or 295.61 remains valid for the life of the mining project, subject to the enforcement provisions under s. 295.79.

295.58(5)(c) (c) An approval issued for a mining project under ch. 23, 29, 30, 31, 169, 281, 283, 285, 289, or 291, except for a permit under ch. 283 or 285 that is subject to a federal requirement limiting its duration, remains valid for the life of the mining project, subject to the enforcement provisions applicable to the approval.

295.58(6) (6) Effective date of approvals. A mining permit and any other approval is issued upon mailing and is final and effective upon issuance.

295.58(7) (7) Merchantable by-products. In a mining permit, the department shall require the operator to treat merchantable by-products as refuse if after 3 years from the time the merchantable by-products result from or are displaced by mining the material has not been transported off the mining site, unless removal is continuing at a rate of more than 12,000 cubic yards per year.

295.58(8) (8) General contractor or affiliate. No operator may engage a general contractor or affiliate to operate a mining site if the general contractor or affiliate has been convicted of more than one felony for violation of a law for the protection of the natural environment arising out of the operation of a mining site in the United States within 10 years before the issuance of the operator’s mining permit, unless the general contractor or affiliate receives the department’s approval of a plan to prevent the occurrence in this state of events similar to the events that directly resulted in the convictions.

295.58 History History: 2013 a. 1.

295.59 295.59 Bonds and other security.

295.59(1) (1) Security for reclamation.

295.59(1)(a) (a) Upon notification that an application for a mining permit has been approved by the department but before beginning mining, the operator shall furnish one of the following to the department:

295.59(1)(a)1. 1. A bond, furnished by a surety company licensed to do business in this state, conditioned on faithful performance of all of the requirements of this subchapter and all rules adopted by the department under this subchapter.

295.59(1)(a)2. 2. Cash.

295.59(1)(a)3. 3. Certificates of deposit.

295.59(1)(a)4. 4. Government securities.

295.59(1)(b) (b) The department shall pay to the operator interest received on certificates of deposit or government securities furnished under par. (a).

295.59(1)(c) (c) The operator shall furnish the security required under par. (a) in the amount equal to the estimated cost to the state of fulfilling the reclamation plan, other than the cost of long-term care of the mining waste site, in relation to the portion of the mining site that will be disturbed by the end of the following year. The department shall determine the estimated cost of reclamation of each mining site on the basis of relevant factors, including the character and nature of the lands to be reclaimed, the future suitable use of the land involved, the topography of the mining site, the methods of reclamation being employed, the depth and composition of overburden, and the depth of the ferrous mineral deposit being mined.

295.59(2) (2) Certificate of insurance. The operator shall submit a certificate of insurance certifying that the applicant has in force a liability insurance policy issued by an insurer authorized to do business in this state or, in lieu of a certificate of insurance, evidence that the applicant has satisfied state or federal self-insurance requirements, covering all mining operations of the operator in this state and affording personal injury and property damage protection in a total amount determined to be adequate by the department but not more than $1,000,000 and not less than $50,000.

295.59(2m) (2m) Proof of financial responsibility for long-term care of mining waste site. An operator shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the long-term care requirements specified in the waste site feasibility study and plan of operation for a period of 40 years after closing of the mining waste site. The operator shall furnish the proof of financial responsibility to the department in one of the following forms:

295.59(2m)(a) (a) A bond.

295.59(2m)(b) (b) Cash.

295.59(2m)(c) (c) Certificates of deposit.

295.59(2m)(d) (d) Government securities.

295.59(2m)(e) (e) Insurance.

295.59(3) (3) Written authorization to mine. Upon approval of the operator’s bonds or other security under subs. (1) and (2m), mining application, and certificate of insurance, the department shall issue written authorization to begin mining at the permitted mining site in accordance with the approved mining plan, reclamation plan, and mining waste site feasibility study and plan of operation.

295.59(4) (4) Reclamation bond for more than one mining site. Any operator who obtains mining permits from the department for 2 or more mining sites may elect, at the time that the mining permit for the 2nd or any subsequent mining site is approved, to post a single bond under sub. (1) in lieu of separate bonds for each mining site. An operator who chooses to post a single bond under this subsection shall post a bond in an amount equal to the estimated cost to the state determined under sub. (1) of reclaiming all mining sites the operator has under mining permits. When an operator elects to post a single bond in lieu of separate bonds previously posted on individual mining sites, the department may not release the separate bonds until the department accepts the new bond.

295.59(5) (5) Review of amounts. If an operator disagrees with the amount of the bonds or other security that the department requires under this section, the operator may seek review under s. 295.77 (3) of the amount required. The operator may post a bond or other security in the amount required by the department and begin mining without forfeiting its right to seek review.

295.59 History History: 2013 a. 1.

295.60 295.60 Impacts to wetlands.

295.60(1) (1) Definitions. In this section:

295.60(1)(a) (a) “Artificial wetland” means a landscape feature where hydrophytic vegetation may be present as a result of human modifications to the landscape or hydrology and for which there is no prior wetland or stream history.

295.60(1)(b) (b) “Ceded territory” means the territory in Wisconsin ceded by the Chippewa Indians to the United States in the treaty of 1837, 7 Stat. 536, and the treaty of 1842, 7 Stat. 591.

295.60(1)(c) (c) “Federal wetland” means a wetland that is subject to federal jurisdiction under 33 USC 1344.

295.60(1)(d) (d) “Fill material” has the meaning given in 33 CFR 323.2 (e), as the meaning exists on July 1, 2012.

295.60(1)(e) (e) “Mitigation” means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands.

295.60(1)(f) (f) “Mitigation bank” means a system of accounting for wetland loss and compensation that includes one or more sites where wetlands are restored, enhanced, created, or preserved to provide credits to be subsequently applied or purchased in order to compensate for adverse impacts to other wetlands.

295.60(1)(g) (g) “On-site location” means a location that is on a mining site or within one-half mile of an outer boundary of a mining site.

295.60(1)(h) (h) “Practicable” means reasonably available and capable of being implemented after taking into consideration cost, site availability, available technology, logistics, and proximity to the proposed project site, in light of the overall purpose and scope of the project.

295.60(1)(i) (i) “Water basin” means the Lake Michigan basin, the Lake Superior basin, or the Mississippi River basin or other water basin established by the department.

295.60(1)(j) (j) “Water management unit” means a subdivision of a water basin that is established on a hydrological basis by the department.

295.60(1)(k) (k) “Water quality standard” means a wetland water quality standard specified under sub. (5) or any other water quality standard set by rule under s. 281.15.

295.60(1)(L) (L) “Wetland impact evaluation” means an evaluation of impacts to a wetland.

295.60(1m) (1m) Applicability. Subsections (2) to (11) do not apply to a wetland individual permit or other approval that requires a wetland impact evaluation if the operator files the application for the wetland individual permit or other approval after the department issues the mining permit for the mining operation.

295.60(2) (2) Wetland determinations and delineations. For purposes of this section, wetland determinations and wetland boundary delineations shall be consistent with the U.S. army corps of engineers 1987 Wetlands Delineation Manual and any final regional supplement to the manual. Any owner or lessee of land, or a holder of an easement in land, may request that the department provide a wetland determination or wetland boundary delineation for an application for a wetland individual permit under this section or for another approval for which a wetland impact evaluation is required. The department may rely on wetland determinations and wetland boundary delineations made by other agencies and consultants. If the applicant has provided information to the department that is identified in the manual or any final regional supplement as being sufficient to make a wetland determination or a delineation of boundaries, the department may visit a mining site to conduct surveys or gather additional site-specific quantitative data provided that the department does not discontinue the processing of the application to do so.

295.60(3) (3) Scope; discharges; other impacts.

295.60(3)(a) (a) Scope. Except as otherwise provided under this section, this section applies to wetland individual permits and any other approvals for which wetland impact evaluations are required.

295.60(3)(b) (b) Discharges of dredged or fill material. No person may discharge dredged material or fill material associated with a mining operation or bulk sampling unless the discharge is authorized under a wetland individual permit issued under this section or under a wetland general permit issued under s. 281.36 (3g). The department may not issue a wetland individual permit unless it makes a finding under sub. (6) (a) that the discharge will comply with all applicable water quality standards. Section 281.36 (3g) and (11), and the rules promulgated under s. 281.36 (3g) and (11), apply to authorizations to proceed under general permits. Notwithstanding s. 281.36 (3g) (h) 2., a person receiving authorization to proceed under a wetland general permit for a mining activity other than bulk sampling may not proceed until a mining permit is issued.

295.60(3)(c) (c) Other impacts. For an approval which requires a wetland impact evaluation for an activity other than a discharge of dredged material or fill material, the approval may not be issued unless the department determines that the activity will comply with all applicable water quality standards.

295.60(4) (4) Review by department.

295.60(4)(a) (a) Avoidance or minimization of impacts. When applying for a wetland individual permit or for another approval for which a wetland impact evaluation is required, an applicant shall include in the application an analysis of the practicable alternatives that will avoid and minimize the adverse impacts on wetland functional values and that will not result in any other significant adverse environmental consequences.

295.60(4)(b) (b) Practicable alternatives. The department shall review the analysis of practicable alternatives included in the application under par. (a). The department shall limit its review to those practicable alternatives that are located at the site of the discharge or other activity and that are located adjacent to that site if the applicant has demonstrated that the proposed project causing the discharge or other activity will result in a demonstrable economic public benefit.