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293.65(2) (2)Diversion of surface water; permit required.
293.65(2)(a)(a) Any person intending to divert surface waters for prospecting or mining shall apply to the department for a permit. The forms and procedures used under s. 30.18 apply to the extent practicable.
293.65(2)(b) (b) The department, upon receipt of an application for a permit, shall determine the minimum stream flow or lake level necessary to protect public rights, the minimum flow or level necessary to protect the rights of affected riparians, the point downstream beyond which riparian rights are not likely to be injured by the proposed diversion and the amount of surplus water, as defined in s. 30.01 (6d), if any, at the point of the proposed diversion.
293.65(2)(c) (c) At the hearing on the permit application, the department shall take testimony on:
293.65(2)(c)1. 1. The public rights in the lake or stream and the related environment which may be injured by the proposed diversion;
293.65(2)(c)2. 2. The public benefits provided by increased employment, economic activity and tax revenues from the mining operation;
293.65(2)(c)3. 3. The direct and indirect social and economic costs and benefits of the proposed mining operation;
293.65(2)(c)4. 4. Whether the proposed withdrawal will consume nonsurplus water;
293.65(2)(c)5. 5. The rights of competing users of such water resources; and
293.65(2)(c)6. 6. Any other issues identified by the department as relevant to the decision of whether to issue or deny a permit.
293.65(2)(d) (d) Within 30 days after hearing, the department shall issue or deny a permit. The following standards shall govern the decision of the department:
293.65(2)(d)1. 1. If injury to public rights exceeds the public benefits generated by the mining, the permit shall be denied.
293.65(2)(d)2. 2. If the proposed diversion will consume nonsurplus waters, and will unreasonably injure rights of riparians identified by par. (b) who are beneficially using such waters, the permit shall be denied unless a permit is granted under par. (e) or all such riparians consent to the proposed diversion.
293.65(2)(d)3. 3. In all other cases the permit shall be granted.
293.65(2)(e) (e) The department may require modification of a proposed diversion so as to avoid injury to public or riparian rights, and as modified, may grant the permit.
293.65(2)(f) (f) Water diverted in accordance with a permit issued under this subsection may be used on nonriparian property.
293.65(2)(g) (g) The department shall maintain continuing jurisdiction over water withdrawal made according to permits issued under this subsection and may modify such permits to prevent undue injury to riparians who gave consent under par. (d) 2. at the time of issuance of the permit.
293.65(2)(h) (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. 293.37.
293.65(2)(i) (i) If a hearing on the application for a permit is conducted as a part of a hearing under s. 293.43, the notice and hearing provisions in that section supersede the notice and hearing provisions of this subsection.
293.65(3) (3)Withdrawal of groundwater; dewatering; permit requirements.
293.65(3)(a)(a) An approval under s. 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. 283.31 is required to discharge pollutants resulting from the dewatering of mines.
293.65(3)(b) (b) The department may not issue an approval under s. 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.
293.65(4) (4)Damage claims.
293.65(4)(a)(a) As used in this subsection, "person" does not include a town, village or city.
293.65(4)(b) (b) A person claiming damage to the quantity or quality of his or her private water supply caused by prospecting or mining may file a complaint with the department and, if there is a need for an immediate alternative source of water, with the town, village or city where the private water supply is located. The department shall conduct an investigation and if the department concludes that there is reason to believe that the prospecting or mining is interrelated to the condition giving rise to the complaint, it shall schedule a hearing.
293.65(4)(c) (c) The town, village or city within which is located the private water supply which is the subject of the complaint shall, upon request, supply necessary amounts of water to replace that water formerly obtained from the damaged private supply. Responsibility to supply water shall commence at the time the complaint is filed and shall end at the time the decision of the department made at the conclusion of the hearing is implemented.
293.65(4)(d) (d) If the department concludes after the hearing that prospecting or mining is the principal cause of the damage to the private water supply, it shall issue an order to the operator requiring the provision of water to the person found to be damaged in a like quantity and quality to that previously obtained by the person and for a period of time that the water supply, if undamaged, would be expected to provide a beneficial use, requiring reimbursement to the town, village or city for the cost of supplying water under par. (c), if any, and requiring the payment of compensation for any damages unreasonably inflicted on the person as a result of damage to his or her water supply. The department shall order the payment of full compensatory damages up to $75,000 per claimant. The department shall issue its written findings and order within 60 days after the close of the hearing. Any judgment awarded in a subsequent action for damages to a private water supply caused by prospecting or mining shall be reduced by any award of compensatory damages previously made under this subsection for the same injury and paid by the operator. The dollar amount under this paragraph shall be changed annually according to the method under s. 70.375 (6). Pending the final decision on any appeal from an order issued under this paragraph, the operator shall provide water as ordered by the department. The existence of the relief under this section is not a bar to any other statutory or common law remedy for damages.
293.65(4)(e) (e) If the department concludes after the hearing that prospecting or mining is not the cause of any damage, reimbursement to the town, village or city for the costs of supplying water under par. (c), if any, is the responsibility of the person who filed the complaint.
293.65(4)(f) (f) Failure of an operator to comply with an order under par. (d) is grounds for suspension or revocation of a prospecting or mining permit.
293.65(4)(g) (g) This subsection applies to any claim for damages to a private water supply occurring after June 3, 1978.
293.65(5) (5)Costs reimbursed.
293.65(5)(a)(a) Costs incurred by a town, village or city in monitoring the effects of prospecting or mining on surface water and groundwater resources, in providing water to persons claiming damage to private water supplies under sub. (4) (c), or in retaining legal counsel or technical consultants to represent and assist the town, village or city appearing at the hearing under sub. (4) (b) are reimbursable through the investment and local impact fund under s. 15.435.
293.65(5)(b) (b) Any costs paid to a town, village or city through the investment and local impact fund under par. (a) shall be reimbursed to the fund by the town, village or city if the town, village or city receives funds from any other source for the costs incurred under par. (a).
293.65(5)(c) (c) If an order under sub. (4) (d) requiring the operator to provide water or to reimburse the town, village or city for the cost of supplying water is appealed and is not upheld, the court shall order the cost incurred by the operator in providing water or in reimbursing the town, village or city pending the final decision to be reimbursed from the investment and local impact fund under s. 15.435.
293.65 History History: 1977 c. 420; 1979 c. 221; 1981 c. 86 ss. 38 to 54, 64; Stats. 1981 s. 144.855; 1985 a. 60 s. 24; 1987 a. 374; 1993 a. 16; 1995 a. 227 s. 783; Stats. 1995 s. 293.65.
subch. V of ch. 293 SUBCHAPTER V
293.81 293.81 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. 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. 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.
293.81 History History: 1973 c. 318; 1977 c. 421; 1993 a. 112; 1995 a. 227 s. 789; Stats. 1995 s. 293.81.
293.83 293.83 Mining and reclamation; orders.
293.83(1) (1)
293.83(1)(a)(a) Violations; order or other action required. If the department finds a violation of law or any unapproved deviation from the mining or reclamation plan at a mining site under a mining permit:
293.83(1)(a)1. 1. The department shall issue an order requiring the operator to comply with the statute, rule or plan within a specified time;
293.83(1)(a)2. 2. The department shall require the alleged violator to appear before the department for a hearing and answer the charges complained of; or
293.83(1)(a)3. 3. The department shall request the department of justice to initiate action under s. 293.87.
293.83(1)(b) (b) Effective dates of orders. Any order issued under par. (a) 1. following a hearing takes effect immediately. Any other order takes effect 10 days after the date the order is served unless the person named in the order requests in writing a hearing before the department within the 10-day period.
293.83(1)(c) (c) Hearing on orders. If no hearing on an order issued under par. (a) 1. was held and if the department receives a request for a hearing within 10 days after the date the order is served, the department shall provide due notice and hold a hearing.
293.83(1)(d) (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. 293.87.
293.83(2) (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. 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. 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. 293.51 (1), assuming the operator had not been exempt from such filing or depositing.
293.83(3) (3) All other prospecting and mining permits held by an operator who refuses to reclaim a mining site in compliance with the reclamation plan after the completion of mining or after the cancellation of a mining permit shall be canceled. The department may not issue any prospecting or mining permits for that site or any other site in this state to an operator who refused to reclaim a mining site in compliance with the reclamation plan.
293.83(4) (4)
293.83(4)(a)(a) The department may issue a stop order to an operator, requiring an immediate cessation of mining, in whole or in part, at any time that the department determines that the continuance of mining constitutes an immediate and substantial threat to public health and safety or the environment.
293.83(4)(b) (b) If no hearing on the stop order was held, the department shall schedule a hearing on the stop order, to be held within 5 days after issuance of the order and shall incorporate notice of the hearing in the copy of the order served upon the operator. The department also shall give notice to any other persons who previously requested notice of such proceedings.
293.83(4)(c) (c) Within 72 hours after commencement of any hearing under par. (b), unless waived by agreement of the parties, the department shall issue a decision affirming, modifying or setting aside the stop order. The department may apply to the circuit court for an order extending the time, for not more than 10 days, within which the stop order shall be affirmed, modified or set aside.
293.83(4)(d) (d) The department shall set aside the stop order at any time, with adequate notice to the parties, upon a showing by the operator that the conditions upon which the order was based no longer exist.
293.83 History History: 1973 c. 318; 1977 c. 421; 1981 c. 86; 1995 a. 227 s. 793; Stats. 1995 s. 293.83.
293.85 293.85 Cancellation of permit. The department may, after hearing, cancel:
293.85(1) (1) The prospecting permit for a prospecting site that is the site of a violation of this chapter.
293.85(2) (2) The mining permit for a mining site that is the site of a violation of this chapter.
293.85(3) (3) A mining or prospecting permit, if the permit holder intentionally made a false statement in the permit application or intentionally omitted information from the permit application which was material to permit issuance.
293.85 History History: 1995 a. 227 s. 750, 994.
293.86 293.86 Visitorial powers of department. Any duly authorized officer, employe or representative of the department may enter and inspect any property, premises or place on or at which any prospecting or metallic mining operation or facility is located or is being constructed or installed at any reasonable time for the purpose of ascertaining the state of compliance with this chapter and chs. 281, 285, 289 to 292, 295 and 299 and rules adopted pursuant thereto. No person may refuse entry or access to any such authorized representative of the department who requests entry for purposes of inspection, and who presents appropriate credentials, nor may any person obstruct, hamper or interfere with any such inspection. The department shall furnish to the prospector or operator, as indicated in the prospecting or mining permit, a written report setting forth all observations, relevant information and data which relate to compliance status.
293.86 History History: 1995 a. 227 s. 404.
293.87 293.87 Enforcement; penalties.
293.87(1) (1) All orders issued, fines incurred, bond liabilities incurred or other violations committed under 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 this chapter or any orders issued or rules adopted thereunder, by injunctional or other appropriate relief.
293.87(2) (2) Any person who makes or causes to be made in an application or report required by 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. 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.
293.87(3) (3) Any person holding a prospecting or mining permit who violates this chapter or any order issued or rule adopted under 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.
293.87(4) (4)
293.87(4)(a)(a) Except for the violations enumerated in subs. (2) and (3), any person who violates this chapter or any rule promulgated or any plan approval, license or special order issued under this chapter shall forfeit not less than $10 nor more than $5,000 for each violation. Each day of continued violation is a separate offense. While an order is suspended, stayed or enjoined, this penalty does not accrue.
293.87(4)(b) (b) In addition to the penalties provided under par. (a), the court may award the department of justice the reasonable and necessary expenses of the investigation and prosecution of the violation, including attorney fees. The department of justice shall deposit in the state treasury for deposit into the general fund all moneys that the court awards to the department or the state under this paragraph. Ten percent of the money deposited in the general fund that was awarded under this paragraph for the costs of investigation and the expenses of prosecution, including attorney fees, shall be credited to the appropriation account under s. 20.455 (1) (gh).
293.87 History History: 1973 c. 318; 1977 c. 421; 1995 a. 227 s. 796, 994; Stats. 1995 s. 293.87.
293.89 293.89 Citizen suits.
293.89(1)(1) Except as provided in sub. (2), any citizen may commence a civil action on his or her own behalf:
293.89(1)(a) (a) Against any person who is alleged to be in violation of this chapter.
293.89(1)(b) (b) Against the department where there is alleged to be a failure of the department to perform any act or duty under this chapter which is not discretionary with the department.
293.89(2) (2) No action may be commenced:
293.89(2)(a) (a) Under sub. (1) (a):
293.89(2)(a)1. 1. Prior to 30 days after the plaintiff has given notice of the alleged violation to the department and to the alleged violator; or
293.89(2)(a)2. 2. If the department has commenced and is diligently prosecuting a civil or criminal action, but in any such action any citizen may intervene as a matter of right.
293.89(2)(b) (b) Under sub. (1) (b) prior to 30 days after the plaintiff has given notice of such action to the department.
293.89(3) (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 this chapter or any permits or orders issued under this chapter.
293.89(4) (4) Nothing in this section restricts any right which any person or class of persons may have under any other statute or common law.
293.89 History History: 1977 c. 421; 1995 a. 227 s. 797; Stats. 1995 s. 293.89.
293.91 293.91 Nonconforming sites.
293.91(1)(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. 293.35 and 293.37. Sections 293.13 (1) (b) and 293.49 (2) shall not apply to such operators.
293.91(2) (2) Modification of existing prospecting and mining sites and of operating procedures to conform with this chapter and rules adopted under 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.
293.91 History History: 1973 c. 318; 1977 c. 421; 1995 a. 227 s. 794; Stats. 1995 s. 293.91.
293.93 293.93 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 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.
293.93 History History: 1977 c. 421; 1995 a. 227 s. 798; Stats. 1995 s. 293.93.
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