Amendment SSA2-AB426

AB426-SSA2,118,25 (5) Review of amounts. If an operator disagrees with the amount of the bonds or other security that the department requires under this section, the operator may seek review under s. 295.77 of the amount required. The operator may post a bond or other security in the amount required by the department and begin mining without forfeiting its right to seek review.

AB426-SSA2,119,1 295.60 Impacts to wetlands. (1) Definitions. In this section:

AB426-SSA2,119,4 (b) "Artificial wetland" means a landscape feature where hydrophytic vegetation may be present as a result of human modifications to the landscape or hydrology and for which there is no prior wetland or stream history.

AB426-SSA2,119,7 (cm) "Ceded territory" means the territory in Wisconsin ceded by the Chippewa Indians to the United States in the treaty of 1837, 7 Stat. 536, and the treaty of 1842, 7 Stat. 591.

AB426-SSA2,119,9 (e) "Federal compensatory mitigation requirement" means any mitigation requirement that is imposed by the federal government.

AB426-SSA2,119,11 (f) "Federal wetland" means a wetland that is subject to federal jurisdiction under 33 USC 1344.

AB426-SSA2,119,13 (g) "Functional values and water quality" means the water quality related wetland functional values and uses specified in sub. (6).

AB426-SSA2,119,16 (h) "Impact" means a permanent, temporary, cumulative, secondary, direct or indirect result that is attributable to a discharge to which the wetland water quality standards apply.

AB426-SSA2,119,18 (i) "Mitigation" means the restoration, enhancement, or creation of wetlands to offset significant adverse impacts to other wetlands.

AB426-SSA2,119,22 (j) "Mitigation bank" means a system of accounting for wetland loss and mitigation that includes one or more sites where wetlands are restored, enhanced, or created to provide transferable credits to be subsequently applied to offset significant adverse impacts to other wetlands.

AB426-SSA2,119,24 (k) "Nonfederal wetland" means a wetland that is not subject to federal jurisdiction under 33 USC 1344.

AB426-SSA2,120,2 (L) "On-site location" means a location that is within one-half mile of an outer boundary of a mining site.

AB426-SSA2,120,5 (m) "Practicable" means available and capable of being implemented after taking into consideration cost, available technology, and logistics in light of the overall project purposes and the needs for bulk sampling or a mining operation.

AB426-SSA2,120,7 (n) "Riparian restoration project" means a project that will restore or enhance the natural beneficial uses and value of a watercourse.

AB426-SSA2,120,9 (o) "Water basin" means the Lake Michigan basin, the Lake Superior basin, or the Mississippi River basin or other water basin established by the department.

AB426-SSA2,120,11 (p) "Water management unit" means a subdivision of a water basin that is established on a hydrological basis by the department.

AB426-SSA2,120,13 (q) "Watershed" means an area of land where all of the water drains into a common waterway.

AB426-SSA2,120,15 (r) "Wetland water quality standard" means a water quality standard specified under sub. (6).

AB426-SSA2,120,18 (2) Scope. This section applies to any water quality certification, or any other approval that involves an evaluation of impact to wetlands, that is associated with mining or bulk sampling.

AB426-SSA2,121,5 (3) Wetland determinations and delineations. For purposes of this section, wetland determinations and wetland boundary delineations shall be consistent with the U.S. Army Corps of Engineers 1987 Wetlands Delineation Manual and any final regional supplement to the manual. The department may rely on wetland determinations and wetland boundary delineations made by other agencies and consultants. If the applicant for a water quality certification or for any other approval for an activity involving impacts to wetlands has provided information to the department that is identified in the manual or any final regional supplement as being sufficient to make a wetland determination or a delineation of boundaries, the department may visit the site to conduct surveys or gather additional site-specific quantitative data provided that the department does not discontinue the processing of the application to do so.

AB426-SSA2,121,12 (4) Water quality certification for federal wetlands. (a) For purposes of issuing a water quality certification that is required pursuant to 33 USC 1341 (a) for a discharge associated with a mining operation or bulk sampling into a federal wetland or for issuing any other approval associated with a mining operation for an activity that involves any impact to a federal wetland, the department shall review the federal compensatory mitigation requirements proposed as part of the federal permit application.

AB426-SSA2,121,19 (b) For purposes of determining whether to issue a water quality certification or other approval that requires an evaluation of impacts to federal wetlands, the department shall determine whether it has reasonable assurance that the federal permitting process and federal compensatory mitigation requirements will offset any significant adverse impact to the functional values and water quality of the federal wetland. If the department determines that reasonable assurance exists, the department may not impose any additional conditions.

AB426-SSA2,122,2 (c) If the department determines that reasonable assurance does not exist under par. (b), it may impose conditions in the water quality certification or other approval if such conditions are limited to those that are necessary to offset any significant adverse impacts to the federal wetland that are not offset by the federal compensatory mitigation requirements in the federal permit or other approval. Any conditions imposed by the department shall permit a mitigation program as provided in sub. (8).

AB426-SSA2,122,5 (d) In imposing conditions under par. (c), the department may not increase the number of acres to be mitigated under the federal compensatory mitigation requirements that are applicable to the federal wetland.

AB426-SSA2,122,9 (e) The department shall issue a water quality certification under this subsection if the federal permitting process, including any federal compensatory mitigation requirement, offsets the significant adverse impacts to the functional values and water quality of the federal wetland.

AB426-SSA2,122,13 (5) Water quality certification for nonfederal wetlands. (a) Certification required. No person may discharge dredge or fill material associated with a mining operation or bulk sampling into a nonfederal wetland unless the discharge is authorized under a water quality certification issued under this section.

AB426-SSA2,122,23 (b) Avoidance or minimization of impacts. For purposes of issuing a water quality certification for a discharge subject to par. (a) or evaluating impacts to nonfederal wetlands for any approval requiring an evaluation of impacts to nonfederal wetlands, the department shall first determine whether any impact to the nonfederal wetland caused by the mining operation or bulk sampling can be avoided or minimized to the extent practicable. If the impacts have been avoided or minimized to the extent practicable, any remaining impacts to nonfederal wetlands may not be a basis for a denial of a water quality certification provided that any remaining significant adverse impacts are offset under a mitigation program under sub. (8).

AB426-SSA2,123,3 (c) Siting analysis. 1. An applicant for a water quality certification for a nonfederal wetland shall submit a siting analysis to the department for review. In reviewing the siting analysis, the department shall recognize all of the following:

AB426-SSA2,123,5 a. The limitations associated with the proposed location of the ferrous mineral deposits to be mined or associated with bulk sampling.

AB426-SSA2,123,7 b. The need for the mining waste sites and any processing facilities to be contiguous to the location of the ferrous mineral deposits to be mined.

AB426-SSA2,123,8 c. The presumption that nonfederal wetlands will be impacted.

AB426-SSA2,123,11 2. The siting analysis shall be limited to an analysis of alternative configurations associated with the areas of the proposed ferrous mineral deposits to be mined at the mining site and with the areas that are contiguous to those deposits.

AB426-SSA2,123,16 3. If it is impracticable to avoid an impact to, or the use of, a nonfederal wetland, the applicant shall identify in the siting analysis, and the department shall review, those configurations that would result in impacts to the fewest acres of nonfederal wetlands to the extent practicable. The department shall determine which configuration will minimize the impacts to the fewest acres.

AB426-SSA2,123,19 4. After the department makes the determination under subd. 3., the department shall evaluate the impact of the mining operation to the functional values and water quality of the nonfederal wetland.

AB426-SSA2,123,23 (5m) Evaluation of impacts. The department shall determine the impact of a proposed activity upon the functional values and water quality of a wetland by using wetland ecological evaluation methods jointly accepted by the U.S. Army Corps of Engineers and the department and appropriate to the affected wetland.

AB426-SSA2,123,25 (6) Wetland water quality standards. The following wetland water quality standards shall apply to any water quality certification under sub. (4) or (5):

AB426-SSA2,124,5 (a) Adverse impacts to the functional values and water quality of wetlands and adverse impacts to other waters of the state that are influenced by wetlands shall be minimized, and any significant adverse impacts remaining after minimization shall be subject to a mitigation program under sub. (8). For purposes of this section, functional values and uses consist of all of the following:

AB426-SSA2,124,7 1. Storm and flood water storage and retention and the moderation of water level fluctuation extremes.

AB426-SSA2,124,10 2. Hydrologic functions including the maintenance of dry season streamflow, the discharge of groundwater to a wetland, the recharge of groundwater from a wetland to another area, and the flow of groundwater through a wetland.

AB426-SSA2,124,12 3. Filtration or storage of sediments, nutrients, or toxic substances that would otherwise adversely impact the quality of waters of the state.

AB426-SSA2,124,14 4. Shoreline protection against erosion through the dissipation of wave energy and water velocity and anchoring of sediments.

AB426-SSA2,124,18 5. Habitat for aquatic organisms in the food web including fish, crustaceans, mollusks, insects, annelids, and planktonic organisms and the plants and animals upon which these aquatic organisms feed and depend upon for their needs in all life stages.

AB426-SSA2,124,21 6. Habitat for resident and transient wildlife species, including mammals, birds, reptiles, and amphibians, for breeding, resting, nesting, escape cover, travel corridors, and food.

AB426-SSA2,124,23 7. Recreational, cultural, educational, scientific, and natural scenic beauty values and uses.

AB426-SSA2,125,2 (b) All of the following shall be minimized in order to avoid significant adverse impacts for the purpose of maintaining or enhancing the functional values and water quality identified under par. (a), and any minimization of the following must be taken into account in the department's evaluation of significant adverse impacts:

AB426-SSA2,125,3 1. The use of liquids, fill, or other solids or gases.

AB426-SSA2,125,4 2. The presence of floating or submerged debris, oil, or other material.

AB426-SSA2,125,5 3. The use of materials producing color, odor, taste, or unsightliness.

AB426-SSA2,125,7 4. The presence of concentrations or combinations of substances that are toxic or harmful to human, animal, or plant life.

AB426-SSA2,125,10 5. Adverse effects on hydrological conditions necessary to support the biological and physical characteristics that are naturally present in wetlands. For purposes of this subdivision, the hydrological conditions include of all of the following:

AB426-SSA2,125,11 a. Water currents and erosion and sedimentation patterns.

AB426-SSA2,125,12 b. Water temperature variations.

AB426-SSA2,125,13 c. The chemical, nutrient, and dissolved oxygen regime of the wetland.

AB426-SSA2,125,14 d. The movement of aquatic fauna.

AB426-SSA2,125,15 e. The pH of the wetland.

AB426-SSA2,125,16 f. Water levels or elevations.

AB426-SSA2,125,18 6. Adverse effects on existing habitat and populations of animals and vegetation found in wetlands.

AB426-SSA2,125,22 (6m) Scope of evaluation. For purposes of issuing a water quality certification under sub. (4) or (5), the department shall evaluate whether an activity will result in a significant adverse impact to the functional values and water quality associated with a wetland by doing all of the following:

AB426-SSA2,126,2 (a) Comparing the functional values and water quality of the wetland with other wetlands located within the boundaries of the mining site or within the same water management unit as the mining site and with other waters of the state that are located in the same water management unit.

AB426-SSA2,126,4 (b) Taking into consideration the floristic province in which the mining site is located.

AB426-SSA2,126,7 (7) Approval by department; nonfederal wetlands. The department shall issue a water quality certification under this section for a nonfederal wetland, if the department determines all of the following:

AB426-SSA2,126,9 (a) All practicable measures will be taken to minimize the adverse impacts to wetlands.

AB426-SSA2,126,11 (b) Any significant adverse impacts to functional values and water quality that remain are offset through a mitigation program under sub. (8).

AB426-SSA2,126,14 (8) Mitigation program. (a) Contents. A mitigation program to offset significant adverse impacts to functional values and water quality of wetlands shall contain all of the following:

AB426-SSA2,126,17 1. Proposed projects for mitigation and a schedule for implementing the projects. These projects may be performed by a person other than the applicant, subject to the department's approval of the projects and schedule.

AB426-SSA2,126,19 2. If the program is applicable to a federal wetland, all federal compensatory mitigation requirements associated with the federal wetland application.

AB426-SSA2,126,24 (b) Option of applicant. An applicant submitting a program under par. (a) may submit options for mitigation. These options may include any combination of the types of mitigation specified in par. (d). In preparing the program, the applicant shall identify and consider mitigation that could be conducted within the same watershed in which the mining site is located.

AB426-SSA2,127,4 (c) Ratios for mitigation. The amount of mitigation required may not exceed 1.5 acres of mitigation for each acre of adversely impacted wetland. For purpose of credits in a mitigation bank, each acre that is subject to mitigation shall count as at least one credit.

AB426-SSA2,127,9 (d) Sequence. If it is not practicable or ecologically preferable to conduct mitigation at an on-site location or if there is no on-site location that will provide sufficient wetland acreage, the department shall allow the applicant to conduct mitigation at a site other than an on-site location, subject to par. (e). Mitigation under a program under par. (a) shall be accomplished through the following types:

AB426-SSA2,127,10 1. Implementation of a project for mitigation.

AB426-SSA2,127,12 2. Purchase of mitigation credits from a mitigation bank for a site in a mitigation bank that is located anywhere in the state subject to par. (e).

AB426-SSA2,127,16 3. Purchase of mitigation credits from a mitigation bank established prior to February 1, 2002, if the department determines that the bank sponsor is in compliance with any applicable memorandum of understanding between the bank sponsor and the department.

AB426-SSA2,127,18 4. Participation in the in lieu fee subprogram, if such a subprogram is established under s. 281.36 (3r) (e).

AB426-SSA2,127,22 (e) If a mining operation is located in whole or in part within the ceded territory, any mitigation including mitigation accomplished through the purchase of mitigation bank credits and the in-lieu fee subprogram that is authorized or required by the department shall occur within the ceded territory.

AB426-SSA2,127,25 (9) Mining permit. Any water quality certification issued by the department, including all of the conditions imposed as part of the certification, shall be included in the mining permit.

AB426-SSA2,128,10 (10) Conservation easements. (a) A person who is the holder of a water quality certification that authorizes mitigation to be implemented by the holder of the certification at an on-site location shall grant a conservation easement under s. 700.40 to the department to ensure that the wetland that is subject to the mitigation will not be destroyed or substantially degraded by any subsequent proprietor of or holder of interest in the property on which the wetland is located. The department shall suspend the mining permit if the holder of the permit fails to grant the easement within the time limit set forth in the mining permit. If the holder subsequently grants the conservation easement to the department, the department shall reinstate the mining permit.

AB426-SSA2,128,12 (b) Notwithstanding par. (a), the department shall modify or release a conservation easement granted under par. (a) if all of the following apply:

AB426-SSA2,128,14 1. The department determines that part or all of the wetland subject to the mitigation ceases to be a wetland.

AB426-SSA2,128,16 2. The person who is required to grant the conservation easement did not contribute to the loss of the wetland as specified in subd. 1.

AB426-SSA2,128,19 3. Any subsequent proprietor of or holder of interest in the property on which the wetland specified in subd. 1. is located did not contribute to the loss of the wetland.

AB426-SSA2,128,23 (11) Exemptions. (a) Artificial wetlands. All of the following artificial wetlands that are associated with a mining operation are exempt from the water quality certification provisions and mitigation provisions under this section and under any other statute or rule relating to impacts on wetlands:

AB426-SSA2,129,3 1. An artificial wetland that is a sedimentation or stormwater detention basin or associated conveyance feature operated and maintained only for sediment detention and flood storage purposes.

AB426-SSA2,129,5 2. An artificial wetland that is an active sewage lagoon, cooling pond, waste disposal pit, fish rearing pond, or landscape pond.

AB426-SSA2,129,7 3. An artificial wetland that is actively maintained farm drainage and roadside ditches.

AB426-SSA2,129,8 4. An artificial wetland as part of an active mining operation.

AB426-SSA2,129,13 (c) Other exempted activities. For nonfederal wetlands, all of the following activities that are associated with a mining operation or bulk sampling are exempt from the water quality provisions and mitigation provisions under this section and any other law relating to impact on wetlands if the applicant minimizes any adverse effect on the environment as a result of the activities:

AB426-SSA2,129,15 1. Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a wetland.

AB426-SSA2,129,16 2. Construction or maintenance of irrigation or drainage ditches.

AB426-SSA2,129,19 3. Construction or maintenance of farm roads, forest roads, or temporary mining roads that is performed in accordance with best management practices, as determined by the department.