1995 Wisconsin Act 227

293.65 (1) Scope. This section governs the withdrawal or diversion of groundwaters or surface waters by persons engaged in prospecting or mining. Discharges of waters are subject to ch. 147 283, construction of necessary dams or other structures is subject to chs. 30 and 31 and construction of wells is subject to ch. 162 280, to the extent applicable.

(2) (h) Hearings on applications for diversion permits under this subsection shall be preceded by mailed notice to all parties or affected persons and by publication in the affected area of a class 2 notice, under ch. 985. Hearings may be conducted as part of a hearing on an application for a mining permit under s. 144.85 293.37.

(i) If a hearing on the application for a permit is conducted as a part of a hearing under s. 144.836 293.43, the notice and hearing provisions in that section supersede the notice and hearing provisions of this subsection.

(3) Withdrawal of groundwater; dewatering; permit requirements. (a) An approval under s. 144.025 (2) (e) 281.17 (1) is required to withdraw groundwater or to dewater mines if the capacity and rate of withdrawal of all wells involved in the withdrawal of groundwater or the dewatering of mines exceeds 100,000 gallons each day. A permit under s. 147.02 283.31 is required to discharge pollutants resulting from the dewatering of mines.

(b) The department may not issue an approval under s. 144.025 (2) (e) 281.17 (1) if the withdrawal of groundwater for prospecting or mining purposes or the dewatering of mines will result in the unreasonable detriment of public or private water supplies or the unreasonable detriment of public rights in the waters of the state. No withdrawal of groundwater or dewatering of mines may be made to the unreasonable detriment of public or private water supplies or the unreasonable detriment of public rights in the waters of the state.

227,784 Section 784 . 144.86 of the statutes is renumbered 293.51, and 293.51 (1), as renumbered, is amended to read:

293.51 (1) Upon notification that an application for a prospecting or mining permit has been approved by the department but prior to commencing prospecting or mining, the operator shall file with the department a bond conditioned on faithful performance of all of the requirements of ss. 144.80 to 144.94 this chapter and all rules adopted by the department under ss. 144.80 to 144.94 this chapter. The bond shall be furnished by a surety company licensed to do business in this state. In lieu of a bond, the operator may deposit cash, certificates of deposit or government securities with the department. Interest received on certificates of deposit and government securities shall be paid to the operator. The amount of the bond or other security required shall be equal to the estimated cost to the state of fulfilling the reclamation plan, in relation to that portion of the site that will be disturbed by the end of the following year. The estimated cost of reclamation of each prospecting or mining site shall be determined by the department on the basis of relevant factors including, but not limited to, expected changes in the price index, topography of the site, methods being employed, depth and composition of overburden and depth of mineral deposit being mined.

227,785 Section 785 . 144.87 (title) and (1) of the statutes are renumbered 293.55 (title) and (1), and 293.55 (1) (c) and (d), as renumbered, are amended to read:

293.55 (1) (c) Substantial changes. The department shall determine if any change in the mining or reclamation plans is substantial and provide notice of its determination in the same manner as specified under s. 144.836 293.43 (3) (b) 1. to 3.

(d) Notice. The department shall provide notice of any modification which involves an increase or decrease in the area of a mining site or a substantial change in the mining or reclamation plan in the same manner as an original application for a mining permit under s. 144.836 293.43 (3). If 5 or more interested persons do not request a hearing in writing within 30 days of notice, no hearing is required on the modification. The notice shall include a statement to this effect.

227,786 Section 786 . 144.87 (2) of the statutes is renumbered 293.57 and amended to read:

293.57 (title) Successors. When one operator succeeds to the interest of another in an uncompleted mining operation by sale, assignment, lease or otherwise, the department shall release the first operator from the duties imposed upon the first operator by ss. 144.80 to 144.94 this chapter as to such operation if:

(1) Both operators have complied with the requirements of ss. 144.80 to 144.94 this chapter; and

(2) The successor operator discloses whether it has forfeited any performance security because of noncompliance with any prospecting or mining laws within the previous 20 years, posts any bond required under s. 144.86 293.51 and assumes all responsibilities of all applicable permits, licenses and approvals granted to the predecessor operator.

227,787 Section 787 . 144.87 (3) of the statutes is renumbered 293.55 (2) and amended to read:

293.55 (2) If the department finds that because of changing conditions, including but not limited to changes in reclamation costs, reclamation technology, minimum standards under s. 144.83 ss. 293.13 and 293.15 (1) to (12) or governmental land use plans, the reclamation plan for a mining site is no longer sufficient to reasonably provide for reclamation of the project site consistent with ss. 144.80 to 144.94 this chapter and any rules adopted under ss. 144.80 to 144.94 this chapter, it shall require the applicant to submit amended mining and reclamation plans which shall be processed in the same manner as an application for an original mining permit. The applicant shall be deemed to hold a temporary mining permit which shall be effective until the amended mining permit is issued or denied. The department shall review the mining and reclamation plans annually after the date of the mining permit issuance or previous review under this section.

227,788 Section 788 . 144.875 of the statutes is renumbered 293.59.

227,789 Section 789 . 144.88 of the statutes is renumbered 293.81 and amended to read:

293.81 Exploring, prospecting and mining without authorization. Any person who engages in exploration without a license shall forfeit not less than $100 nor more than $1,000 for each parcel as defined under s. 144.832 (1) (c) 293.21 (1) (b) on which unlicensed exploration took place. Any person who authorizes or engages in prospecting without a prospecting permit or any operator who authorizes or engages in mining without a mining permit and written authorization to mine under s. 144.86 293.51 (3) shall forfeit all profits obtained from such illegal activities and not more than $10,000 for each day during which the mine was in operation. The operator shall be liable to the department for the full cost of reclaiming the affected area of land and any damages caused by the mining operation. Each day's violation of this section shall be deemed a separate offense. If the violator is a corporation, limited liability company, partnership or association, any officer, director, member, manager or partner who knowingly authorizes, supervises or contracts for exploration, prospecting or mining shall also be subject to the penalties of this section.

227,790 Section 790 . 144.89 (title) of the statutes is repealed.

227,791 Section 791 . 144.89 (1), (1m) and (2) of the statutes are renumbered 293.53 (2) (a), (b) and (c), and 293.53 (2) (b) and (c), as renumbered, are amended to read:

293.53 (2) (b) Annually, the department shall review the mining and reclamation plans and bonds, using the procedure specified under s. 144.84 (4) sub. (1).

(c) The department shall cancel the mining permit held by any operator who fails and refuses to submit reports required under this section subsection.

227,792 Section 792 . 144.90 of the statutes is renumbered 293.63, and 293.63 (1), as renumbered, is amended to read:

293.63 (1) Upon the petition of the operator, but not less than 4 years after notification to the department by the operator of the completion of the reclamation plan, if the department finds after conducting a hearing that the operator has completed reclamation for any portion of the mining site in accordance with the reclamation plan and ss. 144.80 to 144.94 this chapter, the department shall issue a certificate of completion setting forth a description of the area reclaimed and a statement that the operator has fulfilled its duties under the reclamation plan as to that area.

227,793 Section 793 . 144.91 of the statutes is renumbered 293.83, and 293.83 (1) (a) 3. and (d) and (2), as renumbered, are amended to read:

293.83 (1) (a) 3. The department shall request the department of justice to initiate action under s. 144.93 293.87.

(d) Enforcement of orders. The department shall cancel the mining permit for a mining site held by an operator who fails to comply with an order issued under par. (a) 1. The department shall inform the department of justice of the cancellation within 14 days. Within 30 days after the department of justice is informed, it shall commence an action under s. 144.93 293.87.

(2) If reclamation of a mining site is not proceeding in accordance with the reclamation plan and the operator has not commenced to rectify deficiencies within the time specified in the order, or if the reclamation is not properly completed in conformance with the reclamation plan within one year after completion or abandonment of mining on any segment of the mining site, or if the exploration license or prospecting or mining permit is revoked under s. 144.93 293.87 (2) and (3), excepting acts of God, such as adverse weather affecting grading, planting and growing conditions, the department, with the staff, equipment and material under its control, or by contract with others, shall take such actions as are necessary for the reclamation of mined areas. The operator shall be liable for the cost to the state of reclamation conducted under this section. Any operator who is exempted from filing a bond or depositing cash, certificates of deposits or government securities by s. 144.86 293.51 (6) shall not be liable for an amount greater than an amount specified by the department. The specified amount shall be equal to and determined in the same manner as the amount of the bond or other security otherwise required under s. 144.86 293.51 (1), assuming the operator had not been exempt from such filing or depositing.

227,794 Section 794 . 144.92 of the statutes is renumbered 293.91 and amended to read:

293.91 Nonconforming sites. (1) All prospectors and operators conducting mining operations in this state on July 3, 1974 shall submit to the department, within 90 days after that date, applications for prospecting permits or mining permits as provided in ss. 144.84 293.35 and 144.85 293.37. Sections 144.83 293.13 (1) (b) and 144.85 (5) (b) 293.49 (2) shall not apply to such operators.

(2) Modification of existing prospecting and mining sites and of operating procedures to conform with ss. 144.80 to 144.94 this chapter and rules adopted under ss. 144.80 to 144.94 this chapter shall be accomplished as promptly as possible, but 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.

227,795 Section 795 . 144.925 of the statutes is renumbered 293.47.

227,796 Section 796 . 144.93 of the statutes is renumbered 293.87 and amended to read:

293.87 (title) Enforcement; penalties. (1) All orders issued, fines incurred, bond liabilities incurred or other violations committed under ss. 144.80 to 144.94 this chapter shall be enforced by the department of justice. The circuit court of Dane county or any other county where the violation occurred shall have jurisdiction to enforce ss. 144.80 to 144.93 this chapter or any orders issued or rules adopted thereunder, by injunctional or other appropriate relief.

(2) Any person who makes or causes to be made in an application or report required by ss. 144.80 to 144.94 this chapter a statement known to the person to be false or misleading in any material respect or who refuses to file an annual report under s. 144.89 (1) 293.53 (2) (a) or who refuses to submit information required by the prospecting or mining permit may be fined not less than $1,000 nor more than $5,000. If the false or misleading statement is material to the issuance of the permit, the permit may be revoked. If any violation under this subsection is repeated the permit may be revoked.

(3) Any person holding a prospecting or mining permit who violates ss. 144.80 to 144.93 this chapter or any order issued or rule adopted under ss. 144.80 to 144.93 this chapter shall forfeit not less than $10 nor more than $10,000 for each violation. Each day of violation is a separate offense. If the violations continue after an order to cease has been issued, the permit shall be revoked.

227,797 Section 797 . 144.935 of the statutes is renumbered 293.89, and 293.89 (1) (a) and (b) and (3), as renumbered, are amended to read:

293.89 (1) (a) Against any person who is alleged to be in violation of ss. 144.80 to 144.94 this chapter.

(b) Against the department where there is alleged to be a failure of the department to perform any act or duty under ss. 144.80 to 144.94 this chapter which is not discretionary with the department.

(3) The court, in issuing any final order in any action brought under this section, shall award costs of litigation including reasonable attorney and expert witness fees to the plaintiff if he or she prevails, and the court may do so if it determines that the outcome of the controversy is consistent with the relief sought by the plaintiff irrespective of the formal disposition of the civil action. In addition, the court shall award treble damages to any plaintiff proving damages caused by a person mining without a permit or wilfully violating ss. 144.80 to 144.94 this chapter or any permits or orders issued under ss. 144.80 to 144.94 this chapter.

227,798 Section 798 . 144.937 of the statutes is renumbered 293.93 and amended to read:

293.93 Effect of other statutes. If there is a standard under other state or federal statutes or rules which specifically regulates in whole an activity also regulated under ss. 144.80 to 144.94 this chapter the other state or federal statutes or rules shall be the controlling standard. If the other state or federal statute or rule only specifically regulates the activity in part, it shall only be controlling as to that part.

227,799 Section 799 . 144.94 of the statutes is renumbered 293.95 and amended to read:

293.95 Review. Any person aggrieved by any decision of the department under ss. 144.80 to 144.937 this chapter may obtain its review under ch. 227.

227,800 Section 800 . 144.9407 (title) of the statutes is repealed.

227,801 Section 801 . 144.9407 (1) (intro.), (a), (b), (c), (d), (e) and (f) of the statutes are renumbered 295.11 (intro.), (3), (4), (5), (6), (7) and (9), and 295.11 (intro.), as renumbered, is amended to read:

295.11 Definitions. (intro.) In this section subchapter:

227,802 Section 802 . 144.9407 (2) of the statutes is renumbered 295.12, and 295.12 (1) (b) and (d), (2) (a) and (e) and (3) (intro.), (a), (b), (e) (intro.), (f) and (k), as renumbered, are amended to read:

295.12 (1) (b) Provisions for the administration of this section subchapter by the department.

(d) The text of a nonmetallic mining reclamation ordinance that conforms with this section subchapter.

(2) (a) The department shall establish nonmetallic mining reclamation standards under par. (a) 1. sub. (1) (a) that are applicable both during nonmetallic mining and after the termination of nonmetallic mining.

(e) Standards for those portions of a nonmetallic site that are mined before the effective date of the ordinance shall only include those minimal requirements necessary for the stabilization of soil conditions, establishment of vegetative cover and the prevention of environmental pollution. If additional nonmetallic mining takes place on a portion of a site that was mined before the effective date of the ordinance, that portion of the site shall be subject to the standards under subd. 3. par. (d) and the remainder of the site shall be subject to this subdivision paragraph.

(3) Text of ordinance. (intro.) The text of the nonmetallic mining reclamation ordinance under par. (a) 3. sub. (1) (d) shall include all of the following:

(a) Nonmetallic mining reclamation standards that are identical to the standards established under par. (a) 1. sub. (1) (a).

(b) A requirement for the operator to submit a nonmetallic mining operation plan including maps, information about the nonmetallic mining site, a description of the proposed nonmetallic mining including methods and procedures to be used and a proposed timetable for completion of various stages of the nonmetallic mining. The operation plan shall be designed to assure successful nonmetallic mining reclamation consistent with the standards in par. (am) 3. and 4. sub. (2) (d) and (e), to minimize the costs of nonmetallic mining reclamation and, to the extent practicable, to minimize the area disturbed by the nonmetallic mining at any time and to provide for continuous nonmetallic mining reclamation. For those portions of a nonmetallic site mined on or after the effective date of the ordinance, the operation plan shall provide for buffer areas on the nonmetallic mining site to assure appropriate final slopes after nonmetallic mining reclamation.

(e) (intro.) A provision imposing annual fees as determined by the department for the administration of sub. (7) s. 295.18 and imposing annual fees as determined by the county, city, village or town that shall, as closely as possible, equal the cost of all of the following:

(f) A requirement for an expedited review process if the applicant pays an additional fee as determined by the county, city, village or town under subd. 5. par. (e) or if the applicant requires a permit under this section subchapter to perform services under contract with a city, village, town, county or other governmental unit.

(k) A provision for penalties consistent with sub. (8) (c) s. 295.19 (3).

227,803 Section 803 . 144.9407 (3) of the statutes is renumbered 295.13 and amended to read:

295.13 Mandatory enactment and administration of ordinance. (1) Requirement to enact and administer ordinance. Within 6 months after the effective date of the rules under sub. (2) (a) s. 295.12 (1), each county shall enact a nonmetallic mining reclamation ordinance, the text of which is in strict conformity with the text of the ordinance established under sub. (2) (a) 3. s. 295.12 (1) (d), except as provided in par. (b) sub. (2). This ordinance may be enacted separately from an ordinance enacted under s. 59.97.

(2) Preexisting county ordinances. Any county with a nonmetallic mining reclamation ordinance in effect on the June 1, 1993, may maintain and administer that ordinance if the department reviews the existing ordinance and determines that it is at least as restrictive as the ordinance established under sub. (2) (a) 3. s. 295.12 (1) (d). If the department determines that any part of the existing ordinance is not as restrictive as the ordinance established under sub. (2) (a) 3. s. 295.12 (1) (d), the county may amend the ordinance and submit the amended ordinance to the department for approval. After obtaining the approval of the department under this paragraph subsection, the county may not amend the ordinance to make it more restrictive. After obtaining the approval of the department under this paragraph subsection, the county may not amend the ordinance to make it less restrictive than the ordinance established under sub. (2) (a) 3. s. 295.12 (1) (d).

(3) Applicability of county ordinance. The ordinance under par. (a) or (b) sub. (1) or (2) applies to the entire area of the county, except for cities, villages and towns that enact and administer a nonmetallic mining reclamation ordinance under sub. (4) s. 295.14.

227,804 Section 804 . 144.9407 (4) of the statutes is renumbered 295.14 and amended to read:

295.14 Authority to enact and administer ordinance. (1) Authority to enact and administer ordinance. A city, village or town may enact and administer a nonmetallic mining reclamation ordinance, the text of which is in strict conformity with the text of the ordinance under sub. (2) (a) 3. s. 295.12 (1) (d). Except as provided in par. (b) sub. (2), a city, village or town may not administer a nonmetallic mining reclamation ordinance, the text of which is not in strict conformity with the text of the ordinance under sub. (2) (a) 3. s. 295.12 (1) (d).

(2) Preexisting municipal ordinances. A city, village or town with a nonmetallic mining reclamation ordinance in effect on June 1, 1993, may maintain and administer that ordinance if the department reviews the existing ordinance and determines that it is at least as restrictive as the ordinance established under sub. (2) (a) 3. s. 295.12 (1) (d). If the department determines that any part of the existing ordinance is not as restrictive as the ordinance established under sub. (2) (a) 3. s. 295.12 (1) (d), the city, village or town may amend the ordinance and submit the amended ordinance to the department for approval. After obtaining the approval of the department under this paragraph subsection, the city, village or town may not amend the ordinance to make it more restrictive. After obtaining the approval of the department under this paragraph subsection, the city, village or town may not amend the ordinance to make it less restrictive than the ordinance established under sub. (2) (a) 3. s. 295.12 (1) (d).

227,805 Section 805 . 144.9407 (4m) of the statutes is renumbered 295.15 and amended to read:

295.15 Fees. A county or a city, village or town with a nonmetallic mining reclamation ordinance shall collect the fee established under sub. (2) (b) 5. s. 295.12 (3) (e) and shall forward the state's portion of the fee to the department within 90 days after collecting the fee. A county or a city, village or town with a nonmetallic mining reclamation ordinance shall use the revenues from its portion of the fees only for the administration of the nonmetallic mining reclamation ordinance.

227,806 Section 806 . 144.9407 (5) of the statutes is renumbered 295.16, and 295.16 (1), (2), (3) (a) and (4) (intro.), (f) and (g), as renumbered, are amended to read:

295.16 (1) Existing nonmetallic mining. A nonmetallic mining reclamation ordinance and the standards established under sub. (2) (a) 1. s. 295.12 (1) (a) apply to all portions of a nonmetallic mining site, including unreclaimed portions of a nonmetallic mining site that relate to nonmetallic mining that occurred before the effective date of the ordinance.

(2) Nonmetallic mining in or near navigable waterways. A nonmetallic mining reclamation ordinance and the standards established under sub. (2) (a) 1. s. 295.12 (1) (a) do not apply to any nonmetallic mining site or portion of a nonmetallic mining site that is subject to permit and reclamation requirements of the department under ss. 30.19, 30.195, 30.20, 30.30 and 30.31.

(3) (a) The standards established under sub. (2) (a) 1. s. 295.12 (1) (a) and, except as provided in subd. 2. par. (b), a nonmetallic mining reclamation ordinance apply to nonmetallic mining conducted by or on behalf of the state or a municipality. Notwithstanding s. 13.48 (13), nonmetallic mining operated for the benefit or use of the state or any state agency, board, commission or department shall comply with the permit requirements and nonmetallic mining reclamation standards of any applicable nonmetallic mining reclamation ordinance.

(4) Exempt activities. (intro.) A nonmetallic mining reclamation ordinance and the standards established under sub. (2) (a) 1. s. 295.12 (1) (a) do not apply to the following activities:

(f) Any mining operation, the reclamation of which is required in a permit obtained under ss. 144.80 to 144.94 ch. 293.

(g) Any activities conducted at a solid waste or hazardous waste disposal site required to prepare, operate or close a solid waste disposal facility under ss. 144.435 to 144.445 subchs. II to IV of ch. 289 or a hazardous waste disposal facility under ss. 144.60 to 144.74 ch. 291, but a nonmetallic mining reclamation ordinance and the standards established under sub. (2) (a) 1. s. 295.12 (1) (a) apply to activities related to solid waste or hazardous waste disposal that are conducted at a nonmetallic mining site that is not part of the solid waste or hazardous waste disposal facility such as activities to obtain nonmetallic minerals to be used for lining, capping, covering or constructing berms, dikes or roads.

227,807 Section 807 . 144.9407 (6) (title) of the statutes is renumbered 295.17 (title).

227,808 Section 808 . 144.9407 (6) of the statutes is renumbered 295.17 (1).

227,809 Section 809 . 144.9407 (7) of the statutes is renumbered 295.18, and 295.18 (1) (intro.), (b) and (c) and (2) to (4), as renumbered, are amended to read:

295.18 (1) Review. (intro.) The department shall review the nonmetallic mining reclamation program under this section subchapter of each county and each city, village or town that exercises jurisdiction under this section subchapter to ascertain compliance with this section subchapter and the rules promulgated under this section subchapter. This review shall include all of the following:

(b) Verification, by on-site inspections, of county, city, village or town compliance with this section subchapter and rules promulgated under this section subchapter.

(c) A written determination by the department, issued every 3 years, of whether or not the county, city, village or town is in compliance with this section subchapter and rules promulgated under this section subchapter.

(2) Noncompliance; hearing. If the department determines under par. (a) sub. (1) that a county, city, village or town is not in compliance with this section subchapter and rules promulgated under this section subchapter, the department shall conduct a hearing, after 30 days' notice, in the county, city, village or town. As soon as practicable after the hearing, the department shall issue a written decision regarding compliance with this section subchapter and rules promulgated under this section subchapter.

(3) Municipal noncompliance; consequences. If the department determines under par. (b) sub. (2) that a city, village or town is not in compliance with this section subchapter and rules promulgated under this section subchapter, the city, village or town may not administer the nonmetallic mining reclamation program. The county nonmetallic mining reclamation ordinance applies to that city, village or town and the county shall administer the nonmetallic mining reclamation program in that city, village or town. The city, village or town may apply to the department to resume its authority to administer the nonmetallic mining reclamation program, but not sooner than 3 years after the department issues a decision under par. (b) sub. (2). The department, after a hearing, may approve the city, village or town request to administer the nonmetallic mining reclamation program if the city, village or town demonstrates the capacity to comply with this section subchapter and rules promulgated under this section subchapter.

(4) County noncompliance; consequences. If the department determines under par. (b) sub. (2) that a county is not in compliance with this section subchapter and rules promulgated under this section subchapter, the department shall administer the nonmetallic mining reclamation program in that county, including the collection of fees, review and approval of plans, inspection of nonmetallic mining sites and enforcement. The county may apply to the department at any time to resume administration of the nonmetallic mining reclamation program. The department, after a hearing, may approve the county request to administer the nonmetallic mining reclamation program if the county demonstrates the capacity to comply with this section subchapter and rules promulgated under this section subchapter. No city, village or town may enact an ordinance under sub. (4) s. 295.14 during the time that the department administers the nonmetallic mining reclamation program in the county in which the city, village or town is located.

227,810 Section 810 . 144.9407 (8) of the statutes is renumbered 295.19, and 295.19 (1) (c), (2) and (3), as renumbered, are amended to read:

295.19 (1) (c) Issue a special order directing the immediate cessation of an activity regulated under this section subchapter until the necessary plan approval is obtained or until the nonmetallic mining site complies with the nonmetallic mining reclamation ordinance.

(2) Department orders. The department may issue a special order directing the immediate cessation of an activity regulated under this section subchapter until the nonmetallic mining site complies with the nonmetallic mining reclamation standards established under sub. (2) (a) 1. s. 295.12 (1) (a).

(3) Penalties. (a) Any person who violates the rules promulgated under sub. (2) (a) 1. s. 295.12 (1) (a) or an order issued under par. (b) sub. (2) may be required to forfeit not less than $25 nor more than $1,000 for each violation. Each day of continued violation is a separate offense. While an order issued under this section subchapter is suspended, stayed or enjoined, this penalty does not accrue.

227,811 Section 811 . 144.9407 (9) of the statutes is renumbered 295.20, and 295.20 (1) and (3) (intro.) and (a), as renumbered, are amended to read: