Chapter 295

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.

295.60(4)(c) (c) Assessing impacts. In its review under this subsection, the department shall consider all of the following factors when it assesses the impacts to wetland functional values:

295.60(4)(c)1. 1. The direct impacts of the proposed discharge or other activity to wetland functional values.

295.60(4)(c)2. 2. The cumulative impacts attributable to the proposed discharge or other activity that may occur to wetland functional values based on past impacts or reasonably anticipated impacts caused by similar discharges or activities in the area affected by the discharge or activity.

295.60(4)(c)3. 3. Potential secondary impacts of the proposed discharge or other activity to wetland functional values.

295.60(4)(c)4. 4. The impact on functional values resulting from the mitigation program under sub. (8).

295.60(4)(c)5. 5. The net positive or negative environmental impact of the mining operation.

295.60(4)(d) (d) Assessing impacts; geographical scope. In its review under this subsection, the department shall evaluate whether the discharge or other activity will result in a significant adverse impact to wetland functional values by doing all of the following:

295.60(4)(d)1. 1. Comparing the functional values of the wetland with other wetlands located within the boundaries of the mining site or within the same water management unit as the mining site and with other waters of the state that are located in the same water management unit.

295.60(4)(d)2. 2. Taking into consideration the floristic province in which the mining site is located.

295.60(4)(e) (e) Method for assessing impacts. In issuing a wetland individual permit under this section or in conducting a wetland impact evaluation, the department shall determine the impact of a proposed discharge or other activity upon the wetland functional values by using wetland ecological evaluation methods that are jointly accepted by the U.S. army corps of engineers and the department and that are appropriate to the affected wetland.

295.60(4)(f) (f) General permits. Paragraphs (a) to (e) do not apply to authorizations to proceed under a general permit issued under s. 281.36 (3g).

295.60(5) (5) Wetland water quality standards. The following wetland water quality standards apply to any wetland individual permit issued under this section or to any wetland impact evaluation:

295.60(5)(a) (a) Adverse impacts to the functional values and water quality of wetlands and adverse impacts to other waters of the state that are influenced by wetlands shall be minimized, and any significant adverse impacts remaining after minimization shall be subject to a mitigation program under sub. (8). For purposes of this section, functional values consist of all of the following:

295.60(5)(a)1. 1. Storm and flood water storage and retention and the moderation of water level fluctuation extremes.

295.60(5)(a)2. 2. Hydrologic functions including the maintenance of dry season streamflow, the discharge of groundwater to a wetland, the recharge of groundwater from a wetland to another area, and the flow of groundwater through a wetland.

295.60(5)(a)3. 3. Filtration or storage of sediments, nutrients, or toxic substances that would otherwise adversely impact the quality of waters of the state.

295.60(5)(a)4. 4. Shoreline protection against erosion through the dissipation of wave energy and water velocity and anchoring of sediments.

295.60(5)(a)5. 5. Habitat for aquatic organisms in the food web including fish, crustaceans, mollusks, insects, annelids, and planktonic organisms and the plants and animals upon which these aquatic organisms feed and depend upon for their needs in all life stages.

295.60(5)(a)6. 6. Habitat for resident and transient wildlife species, including mammals, birds, reptiles, and amphibians, for breeding, resting, nesting, escape cover, travel corridors, and food.

295.60(5)(a)7. 7. Recreational, cultural, educational, scientific, and natural scenic beauty values and uses.

295.60(5)(b) (b) All of the following shall be minimized in order to avoid significant adverse impacts for the purpose of maintaining or enhancing the wetland functional values identified under par. (a), and any minimization of the following must be taken into account in the department’s evaluation of significant adverse impacts:

295.60(5)(b)1. 1. The use of liquids, fill, or other solids or gases.

295.60(5)(b)2. 2. The presence of floating or submerged debris, oil, or other material.

295.60(5)(b)3. 3. The use of materials producing color, odor, taste, or unsightliness.

295.60(5)(b)4. 4. The presence of concentrations or combinations of substances that are toxic or harmful to human, animal, or plant life.

295.60(5)(b)5. 5. Adverse effects on hydrological conditions necessary to support the biological and physical characteristics that are naturally present in wetlands. For purposes of this subdivision, the hydrological conditions include all of the following:

295.60(5)(b)5.a. a. Water currents and erosion and sedimentation patterns.

295.60(5)(b)5.b. b. Water temperature variations.

295.60(5)(b)5.c. c. The chemical, nutrient, and dissolved oxygen regime of the wetland.

295.60(5)(b)5.d. d. The movement of aquatic fauna.

295.60(5)(b)5.e. e. The pH of the wetland.

295.60(5)(b)5.f. f. Water levels or elevations.

295.60(5)(b)6. 6. Adverse effects on existing habitat and populations of animals and vegetation found in wetlands.

295.60(6) (6) Decision by department.

295.60(6)(a) (a) The department shall make a finding that a discharge of dredged material or fill material is in compliance with all applicable water quality standards and shall issue a wetland individual permit if the department determines that all of the following apply:

295.60(6)(a)1. 1. The proposed project of which the discharge is a part represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts.

295.60(6)(a)2. 2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken.

295.60(6)(a)3. 3. The proposed discharge will not result in significant adverse impact to wetland functional values, subject to par. (b); in significant adverse impact to water quality; or in other significant adverse environmental consequences.

295.60(6)(b) (b) Notwithstanding par. (a) 3., if significant adverse impacts to wetland functional values will remain after the adverse impacts have been avoided and minimized to the extent practicable, the department shall issue the permit if the department determines that the remaining impacts will be compensated for under a mitigation program under sub. (8).

295.60(6)(c) (c) The department may not deny an approval for an activity for which a wetland impact evaluation is required, other than a discharge of dredged material or fill material, on the basis of the impacts from the activity on wetlands if the department determines that all of the following apply:

295.60(6)(c)1. 1. The proposed project of which the activity is a part represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts.

295.60(6)(c)2. 2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken.

295.60(6)(c)3. 3. The proposed activity will not result in significant adverse impact to wetland functional values, subject to par. (d); in significant adverse impact to water quality; or in other significant adverse environmental consequences.