Chapter NR 135

NR 135.62   Relationship to planning and zoning.

NR 135.63   Right of eminent domain.

NR 135.64   Exceptions.

subch. I of ch. NR 135 Subchapter I — General Provisions

NR 135.01 NR 135.01 Purpose and scope.

NR 135.01(1) (1) Purpose. The purpose of this chapter is to require reclamation of nonmetallic mining sites. The rule is promulgated pursuant to ch. 295, subch. I, Stats. The goals of reclamation are:

NR 135.01(1)(a) (a) To rehabilitate sites where nonmetallic mining takes place after the effective date of an applicable reclamation ordinance, in order to promote the removal or reuse of nonmetallic mining refuse, removal of roads no longer in use, grading of the nonmetallic mining site, replacement of topsoil, stabilization of soil conditions, establishment of vegetative cover, control of surface water flow and groundwater withdrawal, prevention of environmental pollution, development and reclamation of existing nonmetallic mining sites, and development and restoration of plant, fish and wildlife habitat if needed to comply with an approved reclamation plan.

NR 135.01(1)(b) (b) To assure nonmetallic mining operations after the effective date of an applicable reclamation ordinance are conducted in a manner that promotes successful reclamation consistent with the standards established in this chapter, minimizes the cost of nonmetallic mining reclamation, encourages the development and reclamation of existing nonmetallic mining sites and, to the extent practicable, minimizes areas disturbed by nonmetallic mining at any time and provides for contemporaneous nonmetallic mining reclamation.

NR 135.01(2) (2) Scope. To accomplish these goals, this chapter establishes standards for reclaiming nonmetallic sites, sets out nonmetallic mining reclamation permit requirements, defines procedures and requirements applicable to mines subject to this chapter, defines procedures for administering nonmetallic mining reclamation programs, including the exercise of the department’s authority for inspection, review and enforcement, and establishes a procedure for landowners to register marketable nonmetallic mineral deposits in order to preserve these resources.

NR 135.01 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.02 NR 135.02 Applicability. This chapter applies to nonmetallic mining sites as follows:

NR 135.02(1) (1) Applicability. This chapter applies to all nonmetallic mining sites, except as exempted in sub. (3). This chapter does not apply to nonmetallic mining sites where nonmetallic mining permanently ceased before August 1, 2001.

NR 135.02(2) (2) Public nonmetallic mining. Except as exempted in sub. (3), this chapter applies to nonmetallic mining conducted by or on behalf of the state of Wisconsin, by or on behalf of a county, municipality, or for the benefit or use of the state or any state agency, board, commission or department, except that the financial assurance requirements of s. NR 135.40 do not apply to nonmetallic mining conducted by the state, a state agency, board, commission or department, county or a municipality.

NR 135.02(3) (3) Exempt activities. Except as provided in sub. (4), this chapter does not apply to any of the following activities:

NR 135.02(3)(a) (a) Nonmetallic mining at a site or that portion of a site that is subject to permit and reclamation requirements of the department under s. 30.19, 30.195 or 30.20, Stats., and complies with ch. NR 340.

NR 135.02(3)(b) (b) Excavations subject to the permit and reclamation requirements of s. 30.30 or 30.31, Stats.

NR 135.02(3)(c) (c) Excavations or grading by a person solely for domestic or farm use at that person’s residence or farm.

NR 135.02(3)(d) (d) Excavations or grading conducted for the construction, reconstruction, maintenance or repair of a highway, railroad, airport facility, or any other transportation facility where the excavation or grading is entirely within the property boundaries of the transportation facility.

NR 135.02(3)(e) (e) Grading conducted for preparing a construction site or restoring land following a flood or natural disaster.

NR 135.02(3)(f) (f) Excavations for building construction purposes conducted on the building site.

NR 135.02(3)(g) (g) Nonmetallic mining at nonmetallic mining sites where less than one acre of total affected acreage occurs over the life of the mine.

NR 135.02(3)(h) (h) Any mining operation, the reclamation of which is required in a permit obtained under ch. 293, Stats., or under subch. III of ch. 295, Stats.

NR 135.02(3)(i) (i) Any activities required to prepare, operate or close a solid waste disposal facility under ch. 289, Stats., or a hazardous waste disposal facility under ch. 291, Stats., that are conducted on the property where the facility is located, but an applicable nonmetallic mining reclamation ordinance and the standards established in this chapter apply to activities related to solid waste or hazardous waste disposal that are conducted at a nonmetallic mining site that is not on the property where the solid waste or hazardous waste disposal facility is located, such as activities to obtain nonmetallic minerals to be used for lining, capping, covering or constructing berms, dikes or roads.

NR 135.02(3)(j) (j)

NR 135.02(3)(j)1. 1. Nonmetallic mining conducted to obtain stone, soil, sand or gravel for construction, reconstruction, maintenance or repair of a highway, railroad, airport, or any other transportation facility or part thereof, if the nonmetallic mining is subject to the requirements of the department of transportation concerning the restoration of the nonmetallic mining site.

NR 135.02 Note Note: The requirements of the department of transportation concerning the restoration of nonmetallic mining sites, other than commercial sources, are found in sections 104.9 and 208 of the standard specifications.

NR 135.02(3)(j)2. 2. The exemption provided in this paragraph only applies to a nonmetallic mining operation with limited purpose and duration where the department of transportation actively imposes reclamation requirements and the operator reclaims the nonmetallic mining site in accordance with these requirements. The duration of the exemption shall be specific to the length of the department of transportation contract for construction of a specific transportation project.

NR 135.02(3)(j)3. 3. If a nonmetallic mining site covered under subds. 1. and 2. is used to concurrently supply materials for projects unrelated to the department of transportation project, the exemption in this paragraph still applies, provided that the site is fully reclaimed under department of transportation contract and supervision.

NR 135.02(3)(k) (k) Dredging for navigational purposes, to construct or maintain farm drainage ditches and for the remediation of environmental contamination and the disposal of spoils from these activities.

NR 135.02(3)(L) (L) Removal of material from the bed of Lake Michigan or Lake Superior by a public utility pursuant to a permit under s. 30.21, Stats.

NR 135.02(4) (4) Applicability of reclamation standards. Notwithstanding sub. (3) (a) and (b), the reclamation standards in subch. II shall apply to the following:

NR 135.02(4)(a) (a) Nonmetallic mining at a site or a portion of a site that is subject to permit and reclamation requirements of the department under s. 30.19, 30.195 or 30.20, Stats., and complies with ch. NR 340.

NR 135.02(4)(b) (b) Excavations subject to the permit and reclamation requirements of s. 30.30 or 30.31, Stats.

NR 135.02 Note Note: The permit procedures and requirements of this chapter other than reclamation standards in subch. II would not apply to activities described in this subsection, as they are already regulated by other permits or approvals. However, subch. II reclamation standards would apply to them.

NR 135.02 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (1), (2) and (3) (g) Register November 2006 No. 611, eff. 12-1-06; CR 13-057: am. (3) (h) Register July 2015 No. 715, eff. 8-1-15.

NR 135.03 NR 135.03 Definitions. In this chapter and in s. 91.46 (6), Stats., and subch. I of ch. 295, Stats.:

NR 135.03(1) (1) “Alternative requirement” means an alternative to the reclamation standards of this chapter provided through a written authorization granted by the regulatory authority pursuant to s. NR 135.26.

NR 135.03(2) (2) “Applicable reclamation ordinance” means a nonmetallic mining reclamation ordinance that applies to a particular nonmetallic mining site and complies with the requirements of this chapter and subch. I of ch. 295, Stats., unless the department is the regulatory authority as defined in sub. (20) (c). If the department is the regulatory authority, “applicable reclamation ordinance” means the relevant and applicable provisions of this chapter.

NR 135.03(2m) (2m) “Borrow site” means an area outside of a transportation project site from which stone, soil, sand or gravel is excavated for use at the project site, except the term does not include commercial sources.

NR 135.03(3) (3) “Contemporaneous reclamation” means the sequential or progressive reclamation of portions of the nonmetallic mining site affected by mining operations that is performed in advance of final site reclamation, but which may or may not be final reclamation, performed to minimize the area exposed to erosion, at any one time, by nonmetallic mining activities.

NR 135.03(4) (4) “Department” means the department of natural resources.

NR 135.03(6) (6) “Environmental pollution” has the meaning in s. 295.11 (2), Stats.

NR 135.03(8) (8) “Financial assurance” means a commitment of funds or resources by an operator to a regulatory authority that satisfies the requirements in s. NR 135.40 and is sufficient to pay for reclamation activities required by this chapter.

NR 135.03(8m) (8m) “Highwall” means a vertical or nearly vertical face in solid rock or a slope of consolidated or unconsolidated material that is steeper than 3:1.

NR 135.03(9) (9) “Landowner” means the person who has title to land in fee simple or who holds a land contract for the land. A landowner is not a person who owns nonmetallic mineral rights to land, if a different person possesses title to that land in fee simple or holds a land contract for that land.

NR 135.03(9m) (9m) “Licensed professional geologist” means a person who is licensed as a professional geologist pursuant to ch. 470, Stats.

NR 135.03(10) (10) “Municipality” means any city, town or village.

NR 135.03(11) (11) “Nonmetallic mineral” means a product, commodity or material consisting principally of naturally occurring, organic or inorganic, nonmetallic, nonrenewable material. Nonmetallic minerals include, but are not limited to, stone, sand, gravel, asbestos, beryl, diamond, clay, coal, feldspar, peat, talc and topsoil.

NR 135.03(13) (13) “Nonmetallic mining” or “mining” means all of following:

NR 135.03(13)(a) (a) Operations or activities at a nonmetallic mining site for the extraction from the earth of mineral aggregates or nonmetallic minerals for sale or use by the operator. Nonmetallic mining includes use of mining equipment or techniques to remove materials from the in-place nonmetallic mineral deposit, including drilling and blasting, as well as associated activities such as excavation, grading and dredging. Nonmetallic mining does not include removal from the earth of products or commodities that contain only minor or incidental amounts of nonmetallic minerals, such as commercial sod, agricultural crops, ornamental or garden plants, forest products, Christmas trees or plant nursery stock.

NR 135.03(13)(b) (b) Processes carried out at a nonmetallic mining site that are related to the preparation or processing of the mineral aggregates or nonmetallic minerals obtained from the nonmetallic mining site. These processes include, but are not limited to stockpiling of materials, blending mineral aggregates or nonmetallic minerals with other mineral aggregates or nonmetallic minerals, blasting, grading, crushing, screening, scalping and dewatering.

NR 135.03(14) (14) “Nonmetallic mining reclamation” or “reclamation” means the rehabilitation of a nonmetallic mining site to achieve a land use specified in an approved nonmetallic mining reclamation plan, including removal or reuse of nonmetallic mining refuse, grading of the nonmetallic mining site, removal, storage and replacement of topsoil, stabilization of soil conditions, reestablishment of vegetative cover, control of surface water and groundwater, prevention of environmental pollution and if practicable the restoration of plant, fish and wildlife habitat.

NR 135.03(15) (15) “Nonmetallic mining refuse” means waste soil, rock and mineral, as well as other natural site material resulting from nonmetallic mining. Nonmetallic mining refuse does not include marketable by-products resulting directly from or displaced by the nonmetallic mining.

NR 135.03(16) (16) “Nonmetallic mining site” or “site” means all contiguous areas of present or proposed mining, subject to the qualifications in par. (b).

NR 135.03(16)(a) (a) Nonmetallic mining sites means the following:

NR 135.03(16)(a)1. 1. The location where nonmetallic mining is proposed or conducted.

NR 135.03(16)(a)2. 2. Storage and processing areas that are in or contiguous to areas excavated for nonmetallic mining.

NR 135.03(16)(a)3. 3. Areas where nonmetallic mining refuse is deposited.

NR 135.03(16)(a)4. 4. Areas affected by activities such as the construction or improvement of private roads or haulage ways for nonmetallic mining.

NR 135.03(16)(a)5. 5. Areas where grading or regrading is necessary.

NR 135.03(16)(a)6. 6. Areas where nonmetallic mining reclamation activities are carried out or structures needed for nonmetallic mining reclamation, such as topsoil stockpile areas, revegetation test plots, or channels for surface water diversion, are located.

NR 135.03(16)(b) (b) “Nonmetallic mine site” does not include any of the following areas:

NR 135.03(16)(b)1. 1. Those portions of sites listed in par. (a) not used for nonmetallic mining or purposes related to nonmetallic mining after 8 months following December 1, 2000.

NR 135.03(16)(b)2. 2. Separate, previously mined areas that are not used for nonmetallic mineral extraction after 8 months following December 1, 2000 and are not contiguous to mine sites, including separate areas that are connected to active mine sites by public or private roads.

NR 135.03(16)(b)3. 3. Areas previously mined but used after 8 months following December 1, 2000 for a non-mining activity, such as stockpiles of materials used for an industrial process unrelated to nonmetallic mining.

NR 135.03(17) (17) “Operator” means any person who is engaged in, or who has applied for a permit to engage in, nonmetallic mining, whether individually, jointly or through subsidiaries, agents, employees, contractors or subcontractors.

NR 135.03(17m) (17m) “Person” means an individual, owner, operator, corporation, limited liability company, partnership, association, county, municipality, interstate agency, state agency or federal agency.

NR 135.03(19) (19) “Registered professional engineer” means a person who is registered as a professional engineer pursuant to s. 443.04, Stats.

NR 135.03(20) (20) “Regulatory authority” means either of the following:

NR 135.03(20)(a) (a) The county in which the nonmetallic mining site is located, that has an applicable reclamation ordinance under s. 295.13, Stats., except where a municipality has adopted an applicable reclamation ordinance pursuant to par. (b).

NR 135.03(20)(b) (b) The municipality in which the nonmetallic mining site is located and which has adopted an applicable reclamation ordinance under s. 295.14, Stats.

NR 135.03(20)(c) (c) The department, in cases where a county mining reclamation program is no longer in effect under s. 295.14, Stats., but only if there is no applicable reclamation ordinance enacted by the municipality in which the nonmetallic mining site is located.

NR 135.03(21) (21) “Replacement of topsoil” means the replacement or redistribution of topsoil or topsoil substitute material to all areas where topsoil was actually removed or affected by nonmetallic mining for the purposes of providing adequate vegetative cover and stabilization of soil conditions needed to achieve the approved post-mining land use and as required by the reclamation plan approved pursuant to an applicable reclamation ordinance.

NR 135.03(22) (22) “Solid waste” means any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant or air pollution control facility and other discarded or salvageable materials, including solid, liquid, semisolid or contained gaseous materials resulting from industrial, commercial, mining and agricultural operations, and from community activities, but does not include solids or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under ch. 283, Stats., or source material, special nuclear material or by-product material, as defined in s. 254.31 (1), Stats.

NR 135.03 Note Note: The definition of “solid waste” in s. 289.01 (33), Stats., was amended by 2017 Wis. Acts 284 and 285 to exclude “slag generated by the production or processing of iron or steel and that is managed as an item of value in a controlled manner and is not discarded,” and to exclude “post-use plastics or nonrecycled feedstock that are processed at a pyrolysis or gasification facility; that are held at a pyrolysis or gasification facility, prior to processing at the facility where they are being held, to ensure that production is not interrupted; or that are held off site before delivery to a pyrolysis or gasification facility with the intent that they will be processed at a pyrolysis or gasification facility.”

NR 135.03(23) (23) “Topsoil” means the surface layer of soil which is generally more fertile than the underlying soil layers, which is the natural medium for plant growth and which can provide the plant growth, soil stability and other attributes necessary to meet the success standards approved in the reclamation plan.

NR 135.03(24) (24) “Topsoil substitute material” means soil or other unconsolidated material either used alone or mixed with other beneficial materials and which can provide the plant growth, site stability and other attributes necessary to meet the success standards approved in the reclamation plan.

NR 135.03(25) (25) 

NR 135.03(25)(a) (a) “Unreclaimed acre” or “unreclaimed acres” means those unreclaimed areas in which nonmetallic mining has occurred after 8 months following December 1, 2000 and areas where nonmetallic mining reclamation has been completed but is not yet certified as reclaimed under s. NR 135.40 (7). However the term does not include any areas described in par. (b).

NR 135.03(25)(b) (b) “Unreclaimed acre” or “unreclaimed acres” does not include:

NR 135.03(25)(b)1. 1. Those areas where reclamation has been completed and certified as reclaimed under s. NR 135.40 (7).

NR 135.03(25)(b)2. 2. Those areas previously affected by nonmetallic mining but which are not used for nonmetallic mining after 8 months following December 1, 2000.

NR 135.03(25)(b)3. 3. Those portions of nonmetallic mining sites which are included in an approved nonmetallic mining reclamation plan but are not yet affected by nonmetallic mining.

NR 135.03(25)(b)4. 4. Areas previously mined but used after 8 months following December 1, 2000 for a non-mining activity, such as stockpiling of materials used for an industrial activity such as an asphalt plant, concrete batch plant, block and tile operation or other industry that uses products produced from nonmetallic mining.

NR 135.03(25)(b)5. 5. For purposes of fees under s. NR 135.39, those areas within a nonmetallic mining site which the regulatory authority has determined to have been successfully reclaimed on an interim basis in accordance with s. NR 135.41.

NR 135.03 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: r. (7) and (18), cr. (8m), (9m) and (17m), am. (19), r. and recr. (20) Register November 2006 No. 611, eff. 12-1-06; correction in (intro.) made under s. 13.92 (4) (b) 7., Stats., Register August 2011 No. 668.

subch. II of ch. NR 135 Subchapter II — Standards

NR 135.05 NR 135.05 Applicability of standards. The standards of this subchapter apply as follows: