Section 132.06. Application to mine.

 

(1)  No person may engage in mining or reclamation at any mining site that is not covered by a mining permit and a written authorization to mine as provided in s. NR 132.09 (3) .

(2)  Any person wishing to engage in mining shall file an application in reproducible form and 25 copies thereof with the department upon forms prepared and furnished by the department. A mining permit application shall be submitted for each mining site. No application for surface mining will be entertained by the department if within the previous 5 years the applicant, or a different person who had received a prospecting permit for a site had certified under s. 293.35 (1) , Stats., that he or she would not subsequently make application for a permit to conduct surface mining at the site. Copies of the application shall be distributed to the clerk of any county, city, village or town with zoning jurisdiction over the proposed site, to the clerk of any county, city, village or town within whose boundaries any portion of the proposed site will be located, and to the main public library of each county or municipality with zoning jurisdiction over the proposed site within whose boundaries any portion of the proposed site will be located.

(3)  The application shall be accompanied by the following:

(a) A fee of $10,000 to cover the estimated cost of evaluating the operator's mining permit application. Upon completion of its evaluation, the department shall adjust this fee to reflect the actual cost of evaluation less any fees paid for the same services to satisfy other requirements. Evaluation of a mining permit application shall be complete upon the issuance of an order to grant or deny a mining permit.

(b) A mining plan in accordance with s. NR 132.07 .

(c) A reclamation plan in accordance with s. NR 132.08 .

(d) A proposed monitoring and quality assurance plan consistent with the requirements of this chapter, ch. NR 182 and s. 1.11 , Stats. The proposed monitoring plan shall be considered at the s. 293.43 , Stats., hearing.

(e) A list of names and addresses of each owner of land within the mining site and each person known by the applicant to hold any option or lease on land within the mining site and all prospecting and mining permits in this state held by the applicant.

(f) Evidence satisfactory to the department that the applicant has applied for necessary approvals and permits under all applicable zoning ordinances and that the applicant has applied for all necessary approvals, licenses or permits required by the department.

(g) Information as to whether the applicant, its parent, its principal shareholders, subsidiaries or affiliates in which it owns more than a 40% interest, has forfeited any mining bonds in other states within the past 20 years, and the dates and locations, if any.

(h) Information relating to whether unsuitability may exist for surface mining to the extent not fully considered in s. 293.45 , Stats.

(i) An itemized statement showing the estimation of the cost to the state of reclamation.

(j) Descriptions of land contiguous to the proposed mining site which the applicant owns, leases or has an option to purchase or lease.

(k) Other information or documentation that the department may require.

(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:

(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.

(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.

(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.

(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:

1. Constitutes a viable site;

2. Is the alternative which causes the least overall adverse environmental impact; and

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.

(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.

(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.

(g) The applicant shall assist in the evaluation of environmental impacts as mandated herein. All of the applicable following wetlands functions and values shall be considered except as provided in par. (h) :

1. `Biological functions.' Wetlands are environments in which a variety of biological functions occur. In may cases, wetlands are very productive ecosystems which support a wide diversity of aquatic and terrestrial organisms. Many wetland areas are vital spawning, breeding, nursery or feeding grounds for a variety of indigenous species. Wetlands are sometimes the habitats for state or federally designated rare, threatened or endangered species. Evaluation of the biological functions should include consideration of the kinds, numbers and relative abundance and distribution of plant and animal species supported by the area, net primary productivity of plant communities, wildlife production and use, and the kinds and amount of organic material transported to other aquatic systems as a potential energy source for consumer organisms in those systems. Habitat evaluation should consider the short- and long-term importance of the wetlands to both aquatic and terrestrial species. In addition, the evaluation should include any specialized wetland functions essential for an organism to complete its life cycle requirements such as cover, spawning, feeding and the like. Each wetland under consideration should be evaluated on a site specific basis.

2. `Watershed functions.' In addition to their biological functions, wetlands may serve important physical and chemical functions with respect to other wetlands and waters of the state. A specific wetland, or set of wetlands, may play a critical role in maintaining the stability of the entire system to which it is physically and functionally related. This functional role may include the maintenance of both the hydrologic patterns and the physical and chemical processes of related wetlands and other related waters of the state. Evaluation of wetland functions requires a thorough analysis of the manner and extent to which the wetland serves to maintain the hydrologic, physical and chemical processes of the larger ecosystem to which it belongs. Factors to be considered in the evaluation process are discussed below. The use of non-wetland areas may alter the hydrologic, chemical and physical processes of wetlands outside the proposed area of use. The possibility of such impacts from the use area into wetlands and other waters of the state outside the proposed area of use should be carefully considered.

2c. `Hydrologic support functions.' A particular wetland may function to maintain the hydrologic characteristics, and thereby the physical and chemical integrity of an entire aquatic ecosystem. Assessment of the hydrologic support function shall consider the effects that modifications of a particular area could have on the hydrologic relations to the whole wetland or aquatic ecosystem, and on the cumulative effects of piecemeal alterations. Evaluation of wetlands hydrologic functions shall include consideration of the wetland's location and topographic position, the areal extent of the wetland within the associated system, the degree of connection with other wetlands and waters of the state, and the hydrologic regime. Hydrologic regime refers to the hydrologic characteristics of a wetland such as the source of the water, its velocity, depth and fluctuation, renewal rate and temporal patterns on timing. The water source determines ionic composition, oxygen saturation, and potential pollutant load. Velocity affects turbulence and the ability of the water to carry suspended particulate matter. Water depth and fluctuation patterns have a critical influence on the vegetation, wildlife, and physical-chemical properties of the sediments and overlying waters. Renewal rate describes the frequency of replacement of the water which depends on water depth and volume, frequency of inundation and velocity. The temporal pattern refers to the frequency of inundation and its regularity or predictability. The hydrologic regime of a wetland influences the biological availability and transport of nutrients, detritus and other organic and inorganic constituents between the particular wetland and other water bodies. Other facets of the hydrologic regime may be considered in specific cases. The location and topographic position of any particular wetland in relation to other water systems determine in part the degree to which they are hydrologically connected. The strongest hydrologic connections are likely to occur between wetlands and other water systems which exchange water frequently and/or are nearest to each other. The areal extent of any particular wetland in relation to the total area of the surrounding watershed is an important criterion in evaluating the hydrologic support function. This includes the relative spatial relationships between specific areas under study and the total area of the adjacent wetland and any open water areas in the watershed.

2f. `Groundwater function.' Groundwater may discharge to a wetland, recharge from a wetland to another area, evaporate from, and/or flow through a wetland. The direction and rate of groundwater flow in a given wetland may change. The criteria that should be considered for their influence on the recharge potential include the total areal extent of wetlands and other waters in the particular drainage basin, and the hydrologic characteristics of the associated aquifer or aquifers including porosity, permeability and transmissivity.

2i. `Storm and flood water storage.' Some wetlands may be important for storing water and retarding flow during periods of flood or storm discharge. Even wetlands without surface water connections to other water bodies may serve this function. Such wetlands can reduce or at least modify the potentially damaging effects of floods by intercepting and retaining water which might otherwise be channelled through open flow systems. The importance of a given wetland for storm and flood water storage may be modified by the cumulative effects of the proposed activities and previous activities within the watershed. The flood storage capacity of a particular wetland is primarily a function of its area, basin shape, substrate texture and previous degree of saturation. In general, the greater the area of the wetland and the coarser the texture of the substrate, the greater the potential for flood water storage, given unsaturated field conditions. Similarly, wetland vegetation is an important factor in reducing the energy of flood or storm water.

2m. `Shoreline protection.' Wetlands also function to dissipate the energy of wave motion and runoff surges from storms and snowmelt, and thus lessen the effects of shoreline erosion. Wave action shielding by wetlands is not only important in preserving shorelines and channels, but also in protecting valuable residential, commercial and industrial acreage located adjacent to the aquatic ecosystems. The capacity of a particular wetland to act as an erosional buffer for a shoreline depends on such factors as the vegetation characteristics, the shape and size of the wetland and the adjacent shoreline morphology. The protection of shorelines by wetlands depends primarily on the floristic composition, structure and density of the plant community. Shoreline morphology along with fetch, adjacent bottom topography and wetland vegetation are important considerations in evaluating a wetland for its shoreline protection functions. Wetlands along shorelines with long fetches are likely to be associated with major waters of the state and shall not be considered for use.

2p. `Other watershed functions.' A wetland may perform a variety of other important functions within a watershed. Wetlands may degrade, inactivate, or store materials such as heavy metals, sediments, nutrients, and organic compounds that would otherwise drain into waterways. However, wetlands may subsequently release potentially harmful materials if the wetland soil is disturbed or its oxidation-reduction conditions altered. Potential alterations of these processes must be considered in the analysis, especially with regard to impacts on wetlands outside the proposed area of use. In assessing the importance of a particular wetland to the performance of watershed functions which influence the physical, chemical and biological properties of related waters, the following shall be considered:

a. Density and distribution of plants;

b. Area, depth and basin shape;

c. Hydrologic regime;

d. Physical, chemical and biological properties of the water and soil;

e. Relationship of wetland size to watershed size;

f. The number and size of other wetlands remaining in that watershed;

g. Topography of the watershed;

h. Position of the wetland within the watershed relative to springs, lakes, rivers and other waters;

i. Land use practices and trends within the watershed, or the likelihood of nutrient, sediment or toxin loads increasing.

3. `Recreational, cultural and economic value.' Some wetlands are particularly valuable in meeting the demand for recreational areas, directly or indirectly, by helping to maintain water quality and providing wildlife habitat. Examples of recreational uses include: hunting, canoeing, hiking, snowshoeing, and nature study. To some people and cultures certain wetlands provide an important part of their economic base and/or contribute to their cultural heritage. In assessing the recreational, cultural and economic potential of a particular wetland, the following should be considered:

a. Wetland type;

b. Size;

c. Suitability and compatibility for the different types of recreational uses;

d. Legal access.

e. Accessibility without damage to other wetland values or functions;

f. Proximity to users;

g. Position in relation to lakes, rivers and other waters;

h. Whether it provides habitat for or produces species of recreational, cultural or economic interest; and

i. Whether the products of some wetlands species (e.g., wild rice, furbearers, fish) have special cultural value and/or provide a significant portion of the economic base for the people of a region.

4. `Scarcity of wetland type.' Certain wetland types (e.g., fens, wild rice lakes) which are statewide or regionally scarce possess special resource significance. Scarcity or rareness depends on the frequency of occurrence of the type, the area of the type in existence prior to settlement, the historical conversion of the type and its resultant degree of destruction, and the amount of similar habitat in the present landscape of the region. In assessing the scarcity of a particular wetland, a comparative measure of the commonness among all wetland types and the degree to which wetlands of all types occur in the surrounding landscape should be considered.

5. `Aquatic study areas, sanctuaries and refuges.' Through various local, state and federal actions, large areas of the nation's wetlands have been designated and preserved by public agencies for scientific study, and the protection of aquatic and terrestrial habitats. Many public and private groups have also established sanctuaries and refuges in wetlands. Wetland areas that are legally and/or administratively controlled as such, or that are included or nominated for inclusion in the national register of natural landmarks, could be comparatively important. Wetland areas of significant social, cultural, or historic value, such as known landmarks, are considered important.

6. `The ecosystem concept in a regional context.' The previous subsections suggest that wetlands may not only have important functions within their boundaries, but may also interact with ecosystems of the surrounding region. The potential impact of wetland modification may influence distant wetlands if they are structurally and functionally related in the region. Similarly, the functions and values of any wetland may be affected by other existing and potential water resource activities in the region. Therefore, consideration should be given to those impacts which are shown to be of regional concern.

(h) All wetlands which are to be used by the proposed activity shall be inventoried and analyzed pursuant to this chapter. The use of such wetlands shall be de minimis and, therefore, exempt from further application of this section, if the applicant demonstrates the following by a preponderance of evidence:

1. The wetlands to be used are or can be made to be sufficiently hydrologically isolated from the surface and underground waters of the state so that no violations of applicable laws and regulations would result;

2. The wetlands are not special or unique utilizing the result of the analysis made pursuant to this chapter; and

3. The area of wetlands to be used shall not exceed 5 acres.

(5)  The burden of proof to establish compliance with the requirements of this chapter shall be on the operator.

(6)  The hearing procedure outlined in s. 293.43 , Stats., shall govern all hearings on the operator's mining permit application.

History: Cr. Register, August, 1982, No. 320 , eff. 9-1-82 ; correction in (4) (g) made under s. 13.93 (2m) (b) 1., Stats., Register, September, 1995, No. 477 ; corrections in (2), (3) (d) and (g), (4) (e) and (6) made under s. 13.93 (2m) (b) 7., Stats., Register, January, 2000, No. 529 .