Chapter NR 340

NR 340.04(1)(g) (g) Historical and archaeological features, if known;

NR 340.04(1)(h) (h) Existing drainage patterns; and

NR 340.04(1)(i) (i) Existing topography. Contour maps of the site shall have contour intervals of no more than 2 feet where ground elevations will be changed and no more than 5 feet where ground elevations will not be changed, except that a wider contour interval may be approved in areas of steep topography.

NR 340.04(2) (2) A legal description of all land within the site which the applicant owns, leases or has an option to purchase or lease;

NR 340.04(3) (3) An operation and reclamation plan in accordance with s. NR 340.05;

NR 340.04(4) (4) Evidence that the operator has applied for or obtained all necessary local, state and federal permits and licenses for the operations;

NR 340.04(5) (5) A statement explaining what the excavated material is to be used for;

NR 340.04(6) (6) A brief description of the investigation conducted to identify upland alternative sites having similar material to be used, and efforts made to obtain the material, including but not limited to offers to purchase or obtain options on the material or sites; and

NR 340.04(7) (7) Other information pertinent to the operation as the department may require to make a decision under the applicable statute.

NR 340.04 History History: Cr. Register, August, 1991, No. 428, eff. 9-1-91.

NR 340.05 NR 340.05 Operation and reclamation plans. Each permit application shall include, in addition to information required in s. NR 340.04, an operation schedule and a detailed plan describing:

NR 340.05(1) (1) The location, extent, depth and manner of operations anticipated for each stage of a staged operation including proposed means of loading and transporting material and the estimated volume and quantity of material to be extracted, accompanied by an adequate documentation of the basis for the estimates.

NR 340.05(2) (2) The final configuration of the site including depth, location and extent of stockpiled materials, and disposal of refuse. The various types of materials involved shall be characterized.

NR 340.05(3) (3) The progressive and final reclamation plans detailing the manner, time and location of:

NR 340.05(3)(a) (a) The removal, stockpiling and protection of all materials in conformance with the appropriate floodplain zoning ordinance and ch. NR 116;

NR 340.05 Note Note: Net changes in ground contours in the floodway of a stream, including temporary stockpiling, that may cause an increase in the 100-year flood elevation require an hydraulic analysis and may require other action such as amending a flood profile or securing flooding easements to comply with ch. NR 116 or a local floodplain zoning ordinance.

NR 340.05(3)(b) (b) Measures to screen the operation from view considering the general shoreland zoning requirements of s. NR 115.05 (1) (c) and the possible need for a buffer zone of sufficient width to prevent environmental pollution;

NR 340.05(3)(c) (c) Grading and stabilization of the site;

NR 340.05(3)(d) (d) Measures for diversion and drainage of ground and surface water from the site where necessary to prevent pollution of ground or surface water;

NR 340.05(3)(e) (e) Erosion and drainage control, and revegetation such as outlined in the department publication entitled Wisconsin construction site best management practice handbook for the slope and soil type or the Wisconsin department of transportation standard specifications for road and bridge construction minimum seeding requirements for rights-of-way, with diverse, self-regenerative species utilized where consistent with final reclamation.

NR 340.05 Note Note: Since the methods cited above in par. (e) may not be appropriate for all conditions encountered, the operator may submit alternate techniques designed to achieve stabilization of the site.

NR 340.05(3m) (3m) In addition to all other requirements of this chapter, reclamation plans required by this section shall include a designation of post-mining land use and comply with the reclamation standards established in ch. NR 135.

NR 340.05(4) (4) Estimated cost of progressive and final reclamation of the site.

NR 340.05(5) (5) An acknowledgement of continuing responsibility for restoration and revegetation of the site until stabilization has been determined adequate by the department.

NR 340.05(6) (6) Other information pertinent to the operation as the department may require to make a decision under the applicable statute.

NR 340.05 History History: Cr. Register, August, 1991, No. 428, eff. 9-1-91; cr. (3m), Register, September, 2000, No. 537, eff. 12-1-00; correction in (3) (b) made under s. 13.92 (4) (b) 7., Stats.

NR 340.055 NR 340.055 Financial assurance. A bond or alternative financial assurance is required for each site and multiple sites of less than one acre by the same operator, except that government units are not required to obtain bonds or alternative financial assurance.

NR 340.055(1) (1) Notification. The department shall determine the required financial assurance level for progressive reclamation in staged operations or for reclamation in unstaged operations and shall notify the operator. Following approval of the permit, and as a condition of the permit, the operator shall file a bond as provided in sub. (2) or alternative financial assurance as provided in sub. (3) with the department. The bond or alternative financial assurance amount shall be sufficient to cover the cost to the state of hiring a contractor to complete reclamation or progressive reclamation in staged operations. The operator shall file the required bond or alternative financial assurance with the department prior to commencing the operation. Upon notification by the department of bond or alternative financial assurance approval, the operator may commence operations and reclamation activities.

NR 340.055(2) (2) Bond requirements.

NR 340.055(2)(a) (a) Bonds shall be issued by a surety company licensed to do business in this state. At the option of the operator, a performance bond or a forfeiture bond may be filed. Surety companies may complete the reclamation plan in lieu of cash payment to the department.

NR 340.055(2)(b) (b) Each bond shall provide that the bond may not be cancelled by the surety, except after not less than 90 days notice to the department in writing by registered or certified mail. Not less than 30 days prior to the expiration of the 90 day notice of cancellation, the operator shall deliver to the department a replacement bond in absence of which the existing bond shall remain in effect.

NR 340.055(2)(c) (c) The bond shall provide that the operator will faithfully perform all requirements of ch. 30, Stats., and all provisions of this chapter and the permit.

NR 340.055(2)(d) (d) The bond shall be payable to the “State of Wisconsin, Department of Natural Resources”.

NR 340.055(2)(e) (e) The bonding level for reclamation or progressive reclamation in staged operations shall be the larger amount of either $2,000 per acre or $0.25 per cubic yard of material excavated based on 1989 dollars unless the operator justifies a lesser amount to the department’s satisfaction.

NR 340.055(3) (3) Alternative financial assurance.

NR 340.055(3)(a) (a) The operator may provide alternative financial assurance in lieu of a bond. Alternative financial assurance may include any of the following: cash; a certificate of deposit; an irrevocable letter of credit; an irrevocable trust, an escrow account, a government security; or any other demonstration of financial responsibility. Certificates of deposit shall be automatically renewable or other assurances shall be provided before the maturity date.

NR 340.055(3)(b) (b) Each form of alternative financial assurance shall provide that it may not be cancelled, except after not less than 90 days notice to the department in writing by registered or certified mail. Not less than 30 days prior to the expiration of the 90-day notice of cancellation, the operator shall deliver to the department a replacement form of alternative financial assurance in absence of which the existing alternative financial assurance shall remain in effect.

NR 340.055(3)(c) (c) The alternative financial assurance shall provide that the operator will faithfully perform all applicable requirements of ch. 30, Stats., and all provisions of this chapter and the permit.

NR 340.055(3)(d) (d) The alternative financial assurance shall be payable to the “State of Wisconsin, Department of Natural Resources”.

NR 340.055(3)(e) (e) The level of alternative financial assurance for reclamation or progressive reclamation in staged operations shall be the larger amount of either $2,000 per acre or $0.25 per cubic yard of material excavated based on 1989 dollars unless the operator justifies a lesser amount to the department’s satisfaction.

NR 340.055 Note Note: The base of 1989 dollars requires that the bonding level must be adjusted to reflect inflation or the cost of living increases. For 1992, the inflation of 4.6 % for 1989, 6.1% for 1990 and 3.1% for 1991, or a total of 14% (1.046 x 1.061 x 1.031 = 1.144) must be added to the listed rates resulting in amounts of $ 2280 per acre or $ 0.285 per cubic yard. For permits issued after 1992, remember to correct for cost of living adjustments for all years back to 1989. For more detail please see the Department’s: Waterway and Wetland Handbook, Chapter 105, NONMETALLIC MINERAL MINING AND RECLAMATION (2001), http://www.dnr.state.wi.us/org/water/fhp/handbook/PDFs/ch105.pdf

NR 340.055(4) (4) Bond or alternative financial assurance reevaluation. The department may reevaluate and adjust the amount of the progressive reclamation bond or security deposit required for reclamation. Reclaimed areas may be released from the bond or alternative financial assurance coverage. Reevaluation shall be made pursuant to subs. (1) and (2).

NR 340.055(5) (5) Multiple project permit bond or alternative financial assurance. Any operator who obtains a permit from the department for 2 or more sites may elect, at the time the second or subsequent site is approved, to post a single bond or alternative financial assurance in lieu of separate bonds or alternative financial assurances on each site. Any single bond or alternative financial assurance so posted shall be in an amount equal to the estimated cost to the state determined under subs. (1) and (2) for all sites. When an operator elects to post a single bond or alternative financial assurance in lieu of separate bonds previously posted on individual sites, a separate bond or alternative financial assurance may not be released until the new bond or alternative financial assurance has been accepted by the department.

NR 340.055(5m) (5m) Interest. Any interest earned by the bond or alternate financial assurance provided under this section shall be paid to the person operating the nonmetallic mining or reclamation project.

NR 340.055(6) (6) Bond or alternative financial assurance release. The department shall release the operator’s bond or alternative financial assurance if it finds, after inspection of the site, that the operator has fully carried out and completed reclamation of the site in accordance with the operation and reclamation plan, and has otherwise complied with ss. 30.19, 30.195 and 30.20, Stats., and this chapter. Final inspection shall be made not less than one year, nor more than 2 years, after the completion of reclamation.

NR 340.055(7) (7) Abandoned sites. Bonds or alternative financial assurances for any site abandoned at the time a permit expires may not be released unless it is shown that no operations have occurred at that site and no potential for environmental pollution exists as a result of an operator’s actions or inactions.

NR 340.055 History History: Cr. Register, August, 1991, No. 428, eff. 9-1-91; CR 06-024: am. (intro.), (1), (4), (5), (6) and (7), r. and recr. (3), cr. (5m) Register November 2006 No. 611, eff. 12-1-06.

NR 340.06 NR 340.06 Permits.

NR 340.06(1) (1) Permits shall be granted where the department finds that the provisions of this chapter and the relevant standards contained in ss. 30.19, 30.195 and 30.20, Stats., have been met.

NR 340.06(2) (2) The initial permit issued to an operator shall be valid for a period not greater than 10 years. If no proceeding for revocation or violation of the permit has been initiated during the term of the permit and there are no other changed or previously unknown circumstances, including environmental considerations, the permit may, after notice and opportunity for hearing, be renewed for succeeding periods of up to 10 years.

NR 340.06(3) (3) Permits shall be conditioned on compliance with the following:

NR 340.06(3)(a) (a) Operations shall be limited to the dimensions and depth approved by the department;

NR 340.06(3)(b) (b) Any permanent pond created in the 100-year floodplain by operations where fish entrapment is likely to occur shall be of sufficient permanency, size, depth and quality to sustain fish and aquatic life and shall be open to the public for fishing after reclamation has been completed. A marked, easily usable public access shall be provided from the adjacent waterway;

NR 340.06(3)(c) (c) There may be no stockpiling or storage of materials contrary to s. 30.12, Stats., ch. NR 116, or any local floodplain zoning ordinance;

NR 340.06(3)(d) (d) Progressive and final reclamation of the site;

NR 340.06(3)(e) (e) If deemed necessary by the department, banks and drainages to navigable waterways shall be stabilized prior to and during project operations, and drainages shall be filtered where necessary to prevent siltation and water turbidity;

NR 340.06 Note Note: Operations that do not meet the effluent limitations in ch. NR 269 will require a separate Wisconsin pollutant discharge elimination system (WPDES) permit.

NR 340.06(3)(f) (f) The operator shall notify the department in writing at least 15 days prior to initial commencement of operations and not more than 15 days after the final reclamation;

NR 340.06(3)(g) (g) Other requirements as are necessary, such as incorporation of a buffer zone, to ensure project operation and progressive and final reclamation in a manner consistent with this chapter and to ensure the prevention of environmental pollution as defined in s. 283.01 (6m), Stats.; and

NR 340.06(3)(h) (h) That the operator acknowledges through acceptance of the permit that the department shall retain continuing jurisdiction in the matter.

NR 340.06(3)(i) (i) Reclamation as proposed in the plan required by s. NR 340.05 shall comply with the reclamation standards established in ch. NR 135.

NR 340.06(4) (4) Permits shall be denied if the department finds that the operation will not conform with the minimum requirements in this chapter and the standards in ss. 30.19, 30.195 and 30.20, Stats., as applicable, or if the applicant has previously failed and continues to fail to comply with ss. 30.19, 30.195 and 30.20, Stats., or any permit issued under these sections, as they relate to nonmetallic mining, or this chapter, including failure to obtain a permit prior to any operation.

NR 340.06 History History: Cr. Register, August, 1991, No. 428, eff. 9-1-91; cr. (3) (i), Register, September, 2000, No. 537, eff. 12-1-00; correction in (3) (g) made under s. 13.93 (2m) (b) 7., Stats., January 2002 No. 553.

NR 340.07 NR 340.07 Violations.

NR 340.07(1) (1) An operator found either conducting project operations without the required permits or violating the conditions of a permit shall be ordered to cease all operations immediately and submit a reclamation plan for the land already affected. Continued operation and after-the-fact permit approval shall be prohibited until the reclamation plan has been approved by the department and any necessary progressive reclamation has been completed.

NR 340.07(2) (2) The department may cancel and rescind the permit of any operator who is in violation of this chapter.

NR 340.07(3) (3) The procedures in subs. (1) and (2) shall be in addition to any other remedies the department may seek.

NR 340.07(4) (4) If the department determines that abandonment of operations has occurred, the operator is in violation of the permit and may not be eligible for permit modification, extension or transfer.

NR 340.07 History History: Cr. Register, August, 1991, No. 428, eff. 9-1-91.

NR 340.08 NR 340.08 Permit modifications.

NR 340.08(1) (1) An operator, at any time prior to expiration of the permit, may apply for amendment or cancellation of a permit or for a change in the reclamation plan for a site. The application describing the amendment, cancellation or change shall be submitted by the operator on a form provided by the department and shall identify the tract of land to be added to or removed from the permitted site or to be affected by a change in the operation and reclamation plan. Any increase in the size of the site shall be subject to the notice and potential hearing provisions of s. 30.02, Stats. The department may deny a permit modification when an operator is in violation of the existing permit.

NR 340.08 Note Note: 2003 Wis. Act 118 repealed s. 30.02, Stats.

NR 340.08(2) (2) When one operator succeeds to the interest of another in any uncompleted operation, the department shall release the first operator from the responsibilities imposed by s. 30.19, 30.195 or 30.20, Stats., and this chapter, as to the operation only if:

NR 340.08(2)(a) (a) Both operators are in compliance with the requirements and standards of this chapter and any permits granted under this chapter; and

NR 340.08(2)(b) (b) The successor operator assumes the responsibility of the former operator to complete the reclamation.

NR 340.08 History History: Cr. Register, August, 1991, No. 428, eff. 9-1-91.

NR 340.09 NR 340.09 Permit extensions.

NR 340.09(1) (1) Requests for permit extensions shall be submitted in writing to the department prior to the expiration date of the existing permit.

NR 340.09(2) (2) No permit extension may be granted unless the operation is in compliance with the terms of the existing permit.

NR 340.09(3) (3) Permit extensions may be granted for up to 3 years.

NR 340.09(4) (4) Permit extensions may be conditioned upon correction of any unanticipated environmental damage occurring during the original permit.

NR 340.09 History History: Cr. Register, August, 1991, No. 428, eff. 9-1-91.

NR 340.10 NR 340.10 Inspections. Each operation shall be inspected by department personnel at least once annually to ensure that the operation is in conformance with the operation’s permit and progressive reclamation plan.

NR 340.10 History History: Cr. Register, August, 1991, No. 428, eff. 9-1-91.