Chapter NR 135

NR 135.49 NR 135.49 Municipal noncompliance, consequences.

NR 135.49(1) (1) If, as a result of a noncompliance hearing held pursuant to s. NR 135.48, the department issues a written decision finding a municipality is out of compliance with this chapter, the municipality’s authority to administer its nonmetallic mining reclamation program shall be revoked. In this case, the applicable reclamation ordinance of the county in which the municipality is located shall apply in the municipality.

NR 135.49(2) (2) A municipality whose authority has been revoked may apply to the department to resume administration of its applicable reclamation ordinance and nonmetallic mining reclamation program after 3 years have elapsed since revocation. The department, after hearing, may approve the municipality’s request to resume administering its nonmetallic mining reclamation program if it finds that the municipality demonstrates the capacity to comply with this chapter.

NR 135.49 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.50 NR 135.50 County noncompliance, consequences.

NR 135.50(1) (1) If as a result of a noncompliance hearing held pursuant to s. NR 135.48, the department issues a written decision finding a county is out of compliance with this chapter, the department shall, as soon as practicable after the hearing, assume responsibility for the administration of the nonmetallic mining reclamation ordinance and program in that county, including collection of fees and review and approval of reclamation plans and permit applications.

NR 135.50(2) (2) Municipalities that are approved to administer an applicable reclamation ordinance and program may continue to do so after the department begins to administer a nonmetallic mining program pursuant to this section. However, no municipality may enact for the first time an applicable reclamation ordinance during the time that the department administers the program in the county in which the municipality is located.

NR 135.50(3) (3) The county found to be in noncompliance may apply to the department, at any time to resume administration of the nonmetallic mining reclamation program. The department, after hearing, may approve the county’s request to resume administering its nonmetallic mining reclamation program if it finds that the county demonstrates the capacity to comply with this chapter.

NR 135.50 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.51 NR 135.51 Nonmetallic mining advisory committee.

NR 135.51(1) (1) The department shall appoint a nonmetallic mining advisory committee to advise it on the administration of this chapter and ch. 295, subch. I, Stats.

NR 135.51(2) (2) The nonmetallic mining advisory committee shall consist of 9 members appointed for terms not exceeding 3 years. Members shall represent economic, scientific and cultural viewpoints and shall include a representative from businesses that extract nonmetallic minerals, a representative from a business that uses nonmetallic minerals for road building and other purposes and a representative of an organization of persons who administer county zoning ordinances. The nonmetallic mining advisory committee shall meet at least annually.

NR 135.51(3) (3) The nonmetallic mining advisory committee shall be consulted before the department may hold a hearing on revoking a nonmetallic mining reclamation program pursuant to s. NR 135.48.

NR 135.51 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.52 NR 135.52 Department assistance.

NR 135.52(1) (1) In order to assist regulatory authorities in the development, implementation and administration of nonmetallic mining reclamation programs, the department may provide training workshops, written materials and technical assistance addressing how to establish and implement a nonmetallic mining reclamation program. The department may make computer software available to regulatory authorities to assist in record keeping and in the generation of standard forms.

NR 135.52 Note Note: Specific mine safety training for reclamation inspectors may be made available through the department of safety and professional services or the federal mine safety and health administration.

NR 135.52(2) (2) Any party may request the department’s technical or administrative opinion to interpret, clarify or to otherwise facilitate progress in permitting matters or in the resolution of any other matter between a regulatory authority and a nonmetallic mine operator.

NR 135.52(3) (3) 

NR 135.52(3)(a) (a) Any party may request the department’s written technical or administrative opinion in a matter involving a dispute between a regulatory authority and a nonmetallic mine operator.

NR 135.52(3)(b) (b) The party should provide a written request detailing the nature and facts of the dispute, a history of previous attempts to resolve the matter, a precise description of the issue or issues where dispute exists and upon which the department is requested to render its technical or administrative opinion.

NR 135.52(3)(c) (c) The department shall respond to requests for technical or administrative opinions in writing within 10 days of receipt of the request indicating whether or not it will render a formal opinion on the matter. If the department acts to provide an opinion, it shall render its written opinion within 45 days of receipt of the request for a technical or administrative opinion. This timeframe may be extended where circumstances such as a lack of sufficient information prevent the department from rendering a valid technical or administrative opinion. In reaching its opinion, the department shall provide an opportunity for all parties to the dispute to provide relevant information and may consider the following: the need for a timely and expeditious resolution, environmental or health risk, economic hardship, whether the opinion is important to statewide program consistency considering significant departure from consistent administration of this chapter’s programs and to the uniform application of reclamation standards, or whether its opinion is precedent setting, or any other factors the department deems relevant.

NR 135.52 Note Note: If the dispute is not resolved as a result of the department’s opinion, any person who meets the requirements of s. 227.42 (1), Stats., may obtain a contested case hearing under s. 68.11, Stats., on a county or municipal regulatory authority’s decision to issue, deny or modify a nonmetallic mining reclamation permit. Please see s. NR 135.30 (1) for more information on appeals procedures.

NR 135.52 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: r. and recr. Register November 2006 No. 611, eff. 12-1-06.

subch. VI of ch. NR 135 Subchapter VI — Registration of Marketable Nonmetallic Mineral Deposits.

NR 135.53 NR 135.53 Definitions. In this subchapter:

NR 135.53(1) (1) “Contiguous parcels” means 2 or more parcels of land that share a common property boundary or have property boundaries that meet on at least one point. For purposes of this definition, parcels are contiguous notwithstanding the existence of public or private roads or easements.

NR 135.53(2) (2) “Marketable nonmetallic mineral deposit” means a nonmetallic mineral deposit that meets the criteria in s. NR 135.54.

NR 135.53(2m) (2m) “Permitted or conditional use” means conducting nonmetallic mining under any existing zoning if one of the criteria in s. NR 135.56 (3) (b) is met.

NR 135.53(3) (3) “Zoning authority” means any county or municipal zoning board or other authority which exercises authority to zone the land which a landowner seeks to register under this subchapter.

NR 135.53 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.54 NR 135.54 Marketable nonmetallic mineral deposit. A marketable nonmetallic mineral deposit is one which can be or is reasonably anticipated to be commercially feasible to mine and has significant economic or strategic value. The significant economic or strategic value must be demonstrable using geologic, mineralogical or other scientific data, due to the deposit’s quality, scarcity, location, quantity or proximity to a known user.

NR 135.54 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.55 NR 135.55 Who may register a marketable nonmetallic mineral deposit. Beginning on June 1, 1994, a landowner may register his or her land pursuant to this subchapter.

NR 135.55 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.56 NR 135.56 Registration requirements.

NR 135.56(1) (1) The registration shall include a legal description delineating the land and a certification and delineation by a licensed professional geologist or a registered professional engineer that the land has a marketable nonmetallic mineral deposit. In making this certification, the licensed professional geologist or registered professional engineer shall describe the type and quality of the nonmetallic mineral deposit, the areal extent and depth of the deposit, how the deposit’s quality, extent, location and accessibility contribute to its marketability, and the quality of the deposit in relation to current and anticipated standards and specifications for this type of material. This certification shall be supported by logs or records of drilling, boring, geophysical surveys, records of physical inspections of outcrops or equivalent scientific data.

NR 135.56(2) (2) The certification shall include the licensed professional geologist’s or registered professional engineer’s seal affixed to this statement:

“I hereby certify that this document contains a description of a marketable nonmetallic mineral deposit consistent with the requirements of Chapter NR 135, Wisconsin Administrative Code.”

NR 135.56(3) (3) 

NR 135.56(3)(a) (a) A person wishing to register land pursuant to this subchapter shall provide evidence that nonmetallic mining is a permitted or conditional use for the land under zoning in effect on the day in which notice is provided to the zoning authorities pursuant to sub. (4).

NR 135.56(3)(b) (b) Nonmetallic mining is a permitted or conditional use for land if any of the following apply:

NR 135.56(3)(b)1. 1. There is no existing zoning.

NR 135.56(3)(b)2. 2. The land is in a zoning category that expressly states that nonmetallic mining is either a permitted use or may be allowed as a conditional use.

NR 135.56(3)(b)3. 3. The land is in a zoning category that allows general uses and the zoning authority allows nonmetallic mining as a permitted or conditional use as a subset of the general uses listed for that zoning category, even though nonmetallic mining in not expressly referred to in the zoning.

NR 135.56(3)(c) (c) If the existing zoning requires a conditional use permit for nonmetallic mining, there is no need to apply for or obtain a conditional use permit in order to register the land pursuant to this subchapter.

NR 135.56(4) (4) A copy of the proposed registration and supporting information shall be provided to each zoning authority if the land is zoned, the county regulatory authority, the municipal regulatory authority if one exists, the city, village or town in which the deposit is located, and the department at least 120 days prior to filing of the registration. Each zoning authority shall maintain records of proposed registrations of lands containing marketable nonmetallic mineral deposits which they shall receive in a manner of the zoning authority’s choosing.

NR 135.56(5) (5) The registration shall include a certification by the landowner and binding on the landowner and his or her successors in interest that the landowner will not undertake any action that would permanently interfere with present or future extraction of the nonmetallic mineral deposit for the duration of the registration.

NR 135.56(6) (6) Registration shall be accomplished by recording the information required by this section, the date of recording, and the date registration expires as a deed notice in the office of registrar of deeds pursuant to s. 59.43 (1c) (a), Stats., in the county in which the land is located no sooner than 121 days and no later than 240 days after notice to zoning authorities has been provided pursuant to sub. (4).

NR 135.56 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. (1) and (2) Register November 2006 No. 611, eff. 12-1-06; correction in (6) under s. 13.92 (4) (b) 7., Stats., Register January 2017 No. 733.

NR 135.57 NR 135.57 Registration of contiguous parcels. Contiguous parcels of land meeting all of the following criteria may be included in one registration under this subchapter.

NR 135.57(1) (1) The parcels are owned by the same person.

NR 135.57(2) (2) The parcels contain a marketable nonmetallic mineral deposit as defined in s. NR 135.54.

NR 135.57(3) (3) The parcels are contiguous as defined in s. NR 135.53 (1).

NR 135.57 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.58 NR 135.58 Objection to registration by a zoning authority.

NR 135.58(1) (1) A zoning authority of land that a landowner intends to register as a marketable nonmetallic mineral deposit may object to the proposed registration only if it gives notice of its intent to object and the reasons for its objection no later than 60 days after receiving notice of intent pursuant to s. NR 135.56 (3). A zoning authority may object to registration only on the grounds of one of the following conditions:

NR 135.58(1)(a) (a) Zoning in effect on the date that notice of intent to register land containing a deposit was provided to the zoning authority does not permit or conditionally permit nonmetallic mining under the criteria in s. NR 135.56 (3) (b); or

NR 135.58(1)(b) (b) There is not a marketable nonmetallic mineral deposit, as defined in s. NR 135.54, on the land proposed to be registered.

NR 135.58(2) (2) A landowner who is notified under sub. (1) of the zoning authority’s intent to object may withdraw or modify the proposed registration of a deposit.

NR 135.58(3) (3) A zoning authority may sustain its objection to registration only by filing suit in the circuit court with jurisdiction over the land to be registered within 60 days of providing notice to object pursuant to sub. (1). The zoning authority may prevail in this suit only if it demonstrates by a preponderance of credible evidence that, notwithstanding any modifications pursuant to sub. (2), one of the conditions in sub. (1) (a) or (b) exists.

NR 135.58 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.59 NR 135.59 Duration and renewal of registration.

NR 135.59(1) (1) Registration of land containing a marketable nonmetallic mineral deposit expires 10 years after the date registration is recorded unless renewed according to this section.

NR 135.59(2) (2) A landowner may not renew registration of land containing a marketable nonmetallic mineral deposit if the deposit has been commercially depleted.

NR 135.59(3) (3) 

NR 135.59(3)(a) (a) A landowner may renew registration of land containing a marketable nonmetallic mineral deposit upon which mining has not yet taken place for one additional 10-year term without a new determination of marketability by notifying the zoning authority and recording a deed notice renewing registration with the county registrar of deeds. Renewal of registration shall be recorded at least 10 days and no more than one year before registration expires. A zoning authority may object to this one-time renewal according to the procedures of s. NR 135.58, but only on the grounds that there is no longer a marketable nonmetallic mineral deposit. Once this one-time renewal of registration has expired, the landowner may register land containing the deposit again in accordance with this subchapter.

NR 135.59(3)(b) (b) A landowner may not submit a notice of intent to register land containing a nonmetallic mineral deposit more than one year before the expiration of current registration.

NR 135.59(4) (4) Notwithstanding sub. (3), a person may continue to renew registration in accordance with this section of land on which nonmetallic mining is taking place for an unlimited number of 10-year periods, so long as active mining is taking place on any portion of the registered land.

NR 135.59(5) (5) Registration of land containing a marketable nonmetallic mineral deposit may not be rescinded by the county in which it is located, or by the landowner or his or her successors or assigns except by expiration in accordance with this section or by termination pursuant to s. NR 135.61.

NR 135.59 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.60 NR 135.60 Previously registered deposits.

NR 135.60(1) (1) Land that has been registered as an economically viable nonmetallic mineral deposit under s. 144.9407 (9), 1993 Stats., or s. 295.20, Stats., prior to December 1, 2000 shall become a registered marketable nonmetallic mineral deposit to which this subchapter applies.

NR 135.60(2) (2) Land registered under sub. (1) shall remain registered as a marketable nonmetallic mineral deposit for a period that ends 10 years after the initial date of registration was recorded as a notation in the office of the registrar of deeds in the county in which the nonmetallic mineral deposit is located. After this 10-year registration period, the land may be re-registered as a marketable nonmetallic mineral deposit in accordance with s. NR 135.56. Land which has become registered pursuant to sub. (1) may not be re-registered for a 10-year term as provided in s. NR 135.59 (3).

NR 135.60 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.61 NR 135.61 Termination of registration of a depleted deposit. The landowner may terminate registration under this subchapter of land containing a marketable nonmetallic mineral deposit where the deposit has been depleted, or where the deposit is no longer economically viable to mine. Termination of registration shall be accomplished by the landowner filing a statement of the foregoing, with supporting certification by a registered licensed professional geologist or registered professional engineer, at the office of the register of deeds in the county in which the land is located.

NR 135.61 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00; CR 06-024: am. Register November 2006 No. 611, eff. 12-1-06.

NR 135.62 NR 135.62 Relationship to planning and zoning.

NR 135.62(1) (1) A county or municipality that has received notice of intent to register pursuant to s. NR 135.56 (3) may not, by zoning, granting a variance, or other official action or inaction, permit the erection of permanent structures on, or otherwise permit the use of any subsequently registered land containing a marketable nonmetallic mineral deposit in a manner that would permanently interfere with the present or future extraction of the nonmetallic mineral deposit. This limitation begins when notice of intent to register is received.

NR 135.62(2) (2) Any request by the owner of registered land or his or her agent for a permit, grant of authority, variance, zoning change or other official action shall be accompanied by a copy of the registration, certified by the register of deeds as the recorded document.

NR 135.62(3) (3) The limitation of government action in sub. (1) applies to land where a zoning authority with jurisdiction has provided notice of intent to object to registration pursuant to s. NR 135.57 (1), until the time the registration expires, is terminated, or the objecting zoning authority finally prevails in court action pursuant to s. NR 135.58 (3) to sustain its objection.

NR 135.62(4) (4) 

NR 135.62(4)(a) (a) Notwithstanding sub. (1), a county or municipality may rezone land which contains a marketable nonmetallic mineral deposit and upon which mining has not begun on any portion if the rezoning is necessary to implement a master plan, comprehensive plan or land use plan which has been lawfully adopted by an appropriate governing body at least one year prior to the rezoning.

NR 135.62(4)(b) (b) Any zoning change to implement a lawfully adopted master plan, comprehensive plan or land use plan does not apply to land containing a registered marketable nonmetallic mineral deposit until the expiration of the current registration period or the one-time registration renewal period under s. NR 135.59 (3), whichever comes last. A zoning change which has been adopted pursuant to this subsection may be used by a zoning authority as the basis for objecting, pursuant to s. NR 135.58 (1) (a), to reregistration of land containing a marketable nonmetallic mineral deposit.

NR 135.62(4)(c) (c) Registration of land containing a marketable nonmetallic mineral deposit does not relieve the property owner from the obligation to obtain all necessary permits and approvals to be able to mine the deposit, nor does mineral registration create a presumption that these permits will be granted. However, land use plans and zoning ordinances adopted by a county, municipality or agency shall make all reasonable provisions to preserve identified marketable nonmetallic mineral deposits.

NR 135.62 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.63 NR 135.63 Right of eminent domain. Nothing in this subchapter affects any state, county or municipal authority to acquire property by eminent domain.

NR 135.63 History History: Cr. Register, September, 2000, No. 537, eff. 12-1-00.

NR 135.64 NR 135.64 Exceptions. Nothing in this subchapter shall prohibit: