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3. If it is impracticable to avoid an impact to, or the use of, a nonfederal wetland,
13the applicant shall identify in the siting analysis, and the department shall review,
14those configurations that would result in impacts to the fewest acres of nonfederal
15wetlands to the extent practicable. The department shall determine which
16configuration will minimize the impacts to the fewest acres.
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4. After the department makes the determination under subd. 3., the
18department shall evaluate the impact of the mining operation to the functional
19values and water quality of the nonfederal wetland.
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20(5m) Evaluation of impacts. The department shall determine the impact of a
21proposed activity upon the functional values and water quality of a wetland by using
22wetland ecological evaluation methods jointly accepted by the U.S. Army Corps of
23Engineers and the department and appropriate to the affected wetland.
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24(6) Wetland water quality standards. The following wetland water quality
25standards shall apply to any water quality certification under sub. (4) or (5):
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1(a) Adverse impacts to the functional values and water quality of wetlands and
2adverse impacts to other waters of the state that are influenced by wetlands shall be
3minimized, and any significant adverse impacts remaining after minimization shall
4be subject to a mitigation program under sub. (8). For purposes of this section,
5functional values and uses consist of all of the following:
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1. Storm and flood water storage and retention and the moderation of water
7level fluctuation extremes.
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2. Hydrologic functions including the maintenance of dry season streamflow,
9the discharge of groundwater to a wetland, the recharge of groundwater from a
10wetland to another area, and the flow of groundwater through a wetland.
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3. Filtration or storage of sediments, nutrients, or toxic substances that would
12otherwise adversely impact the quality of waters of the state.
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4. Shoreline protection against erosion through the dissipation of wave energy
14and water velocity and anchoring of sediments.
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5. Habitat for aquatic organisms in the food web including fish, crustaceans,
16mollusks, insects, annelids, and planktonic organisms and the plants and animals
17upon which these aquatic organisms feed and depend upon for their needs in all life
18stages.
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6. Habitat for resident and transient wildlife species, including mammals,
20birds, reptiles, and amphibians, for breeding, resting, nesting, escape cover, travel
21corridors, and food.
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7. Recreational, cultural, educational, scientific, and natural scenic beauty
23values and uses.
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(b) All of the following shall be minimized in order to avoid significant adverse
25impacts for the purpose of maintaining or enhancing the functional values and water
1quality identified under par. (a), and any minimization of the following must be taken
2into account in the department's evaluation of significant adverse impacts:
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1. The use of liquids, fill, or other solids or gases.
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2. The presence of floating or submerged debris, oil, or other material.
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3. The use of materials producing color, odor, taste, or unsightliness.
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4. The presence of concentrations or combinations of substances that are toxic
7or harmful to human, animal, or plant life.
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5. Adverse effects on hydrological conditions necessary to support the biological
9and physical characteristics that are naturally present in wetlands. For purposes
10of this subdivision, the hydrological conditions include of all of the following:
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a. Water currents and erosion and sedimentation patterns.
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b. Water temperature variations.
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c. The chemical, nutrient, and dissolved oxygen regime of the wetland.
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d. The movement of aquatic fauna.
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e. The pH of the wetland.
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f. Water levels or elevations.
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6. Adverse effects on existing habitat and populations of animals and
18vegetation found in wetlands.
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19(6m) Scope of evaluation. For purposes of issuing a water quality certification
20under sub. (4) or (5), the department shall evaluate whether an activity will result
21in a significant adverse impact to the functional values and water quality associated
22with a wetland by doing all of the following:
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(a) Comparing the functional values and water quality of the wetland with
24other wetlands located within the boundaries of the mining site or within the same
1water management unit as the mining site and with other waters of the state that
2are located in the same water management unit.
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(b) Taking into consideration the floristic province in which the mining site is
4located.
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5(7) Approval by department; nonfederal wetlands. The department shall
6issue a water quality certification under this section for a nonfederal wetland, if the
7department determines all of the following:
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(a) All practicable measures will be taken to minimize the adverse impacts to
9wetlands.
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(b) Any significant adverse impacts to functional values and water quality that
11remain are offset through a mitigation program under sub. (8).
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12(8) Mitigation program. (a)
Contents. A mitigation program to offset
13significant adverse impacts to functional values and water quality of wetlands shall
14contain all of the following:
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1. Proposed projects for mitigation and a schedule for implementing the
16projects. These projects may be performed by a person other than the applicant,
17subject to the department's approval of the projects and schedule.
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2. If the program is applicable to a federal wetland, all federal compensatory
19mitigation requirements associated with the federal wetland application.
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(b)
Option of applicant. An applicant submitting a program under par. (a) may
21submit options for mitigation. These options may include any combination of the
22types of mitigation specified in par. (d). In preparing the program, the applicant shall
23identify and consider mitigation that could be conducted within the same watershed
24in which the mining site is located.
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1(c)
Ratios for mitigation. The amount of mitigation required may not exceed
21.5 acres of mitigation for each acre of adversely impacted wetland. For purpose of
3credits in a mitigation bank, each acre that is subject to mitigation shall count as at
4least one credit.
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(d)
Sequence. If it is not practicable or ecologically preferable to conduct
6mitigation at an on-site location or if there is no on-site location that will provide
7sufficient wetland acreage, the department shall allow the applicant to conduct
8mitigation at a site other than an on-site location, subject to par. (e). Mitigation
9under a program under par. (a) shall be accomplished through the following types:
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1. Implementation of a project for mitigation.
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2. Purchase of mitigation credits from a mitigation bank for a site in a
12mitigation bank that is located anywhere in the state subject to par. (e).
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3. Purchase of mitigation credits from a mitigation bank established prior to
14February 1, 2002, if the department determines that the bank sponsor is in
15compliance with any applicable memorandum of understanding between the bank
16sponsor and the department.
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4. Participation in the in lieu fee subprogram, if such a subprogram is
18established under s. 281.36 (3r) (e).
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(e) If a mining operation is located in whole or in part within the ceded territory,
20any mitigation including mitigation accomplished through the purchase of
21mitigation bank credits and the in-lieu fee subprogram that is authorized or
22required by the department shall occur within the ceded territory.
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23(9) Mining permit. Any water quality certification issued by the department,
24including all of the conditions imposed as part of the certification, shall be included
25in the mining permit.
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1(10) Conservation easements. (a) A person who is the holder of a water quality
2certification that authorizes mitigation to be implemented by the holder of the
3certification at an on-site location shall grant a conservation easement under s.
4700.40 to the department to ensure that the wetland that is subject to the mitigation
5will not be destroyed or substantially degraded by any subsequent proprietor of or
6holder of interest in the property on which the wetland is located. The department
7shall suspend the mining permit if the holder of the permit fails to grant the
8easement within the time limit set forth in the mining permit. If the holder
9subsequently grants the conservation easement to the department, the department
10shall reinstate the mining permit.
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(b) Notwithstanding par. (a), the department shall modify or release a
12conservation easement granted under par. (a) if all of the following apply:
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1. The department determines that part or all of the wetland subject to the
14mitigation ceases to be a wetland.
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2. The person who is required to grant the conservation easement did not
16contribute to the loss of the wetland as specified in subd. 1.
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3. Any subsequent proprietor of or holder of interest in the property on which
18the wetland specified in subd. 1. is located did not contribute to the loss of the
19wetland.
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20(11) Exemptions. (a)
Artificial wetlands. All of the following artificial wetlands
21that are associated with a mining operation are exempt from the water quality
22certification provisions and mitigation provisions under this section and under any
23other statute or rule relating to impacts on wetlands:
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11. An artificial wetland that is a sedimentation or stormwater detention basin
2or associated conveyance feature operated and maintained only for sediment
3detention and flood storage purposes.
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2. An artificial wetland that is an active sewage lagoon, cooling pond, waste
5disposal pit, fish rearing pond, or landscape pond.
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3. An artificial wetland that is actively maintained farm drainage and roadside
7ditches.
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4. An artificial wetland as part of an active mining operation.
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(c)
Other exempted activities. For nonfederal wetlands, all of the following
10activities that are associated with a mining operation or bulk sampling are exempt
11from the water quality provisions and mitigation provisions under this section and
12any other law relating to impact on wetlands if the applicant minimizes any adverse
13effect on the environment as a result of the activities:
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1. Maintenance, emergency repair, or reconstruction of damaged parts of
15structures that are in use in a wetland.
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2. Construction or maintenance of irrigation or drainage ditches.
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3. Construction or maintenance of farm roads, forest roads, or temporary
18mining roads that is performed in accordance with best management practices, as
19determined by the department.
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20(12) Relationship to other laws. None of the following apply to a mining
21operation or bulk sampling:
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(a) Section 281.36, except as otherwise specifically provided in this section.
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(b) Any rule promulgated by the department relating to wetlands that conflicts
24with this section, except that no rule promulgated by the department under s. 281.36
25applies to a mining operation or bulk sampling.
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1295.605 Impacts to navigable waters. (1) Definition. In this section,
2"navigable water activity" means an activity for which a permit or contract is
3required under s. 30.12, 30.123, 30.19, 30.195, or 30.20.
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4(2) Permit or contract required. No person may engage in any navigable
5water activity associated with bulk sampling or mining unless the person has been
6issued a permit or entered into a contract as provided under sub. (4).
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7(3) Application; riparian status. (a) Any person who intends to engage in a
8navigable water activity associated with bulk sampling or mining need not be a
9riparian owner to do any of the following:
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1. Apply for and be issued an individual permit for a navigable water activity
11under s. 30.12, 30.123, 30.19, or 30.195.
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1m. Enter into a contract under s. 30.20.
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2. Engage in an activity that is exempt under s. 30.12, 30.123, 30.19, 30.195,
14or 30.20.
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3. Seek authorization under a general permit issued under s. 30.12, 30.123,
1630.19, or 30.20.
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(b) If a person is applying for more than one permit or contract for a navigable
18water activity associated with bulk sampling or mining, the person may file a single
19application. The application shall include any information requested by the
20department under s. 295.45 (3).
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21(4) Requirements. (a)
Generally. The department shall issue a permit, or enter
22into a contract, for a navigable water activity if the navigable water activity meets
23all of the following requirements:
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1. The navigable water activity will not significantly impair public rights and
25interests in a navigable water.
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12. The navigable water activity will not significantly reduce the effective flood
2flow capacity of a stream.
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3. The navigable water activity will not significantly affect the rights of
4riparian owners or the applicant obtains the consent of the riparian owners.
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4. The navigable water activity will not significantly degrade water quality.
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(b)
Measures. The person applying for the permit or contract shall submit a
7plan to the department containing proposed measures to meet the requirements
8under par. (a) and a proposed schedule for implementing the measures. The plan
9shall include one or more of the following measures:
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1. Measures to offset significant impacts to navigable waters by providing
11public access to, restoring, or enlarging up to 1.5 acres of navigable waters in
12exchange for each acre of navigable waters that is significantly impacted.
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2. Measures to improve public rights or interests in navigable waters.
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3. Measures to offset significant impacts to water quality or quantity.
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4. Measures to enhance flood storage.
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5. Mitigation as provided under s. 295.60.
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6. Conservation measures as provided in s. 295.61.
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(bn)
Plan review; finding. In reviewing the plan, the department may require
19that measures that are in addition to, or in conjunction with, one or more of the
20measures specified in par. (b) 1. to 6. be included in the plan. After reviewing the plan
21and application, if the department finds that the requirements under par. (a) will be
22met by implementing some or all of the measures contained in the plan, the
23department shall determine which measures shall be required, shall approve a
24schedule for implementation, and shall issue the permit or enter into the contract.
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1(c)
Applicability of requirements. The requirements that are specified in par.
2(a) 1. to 4. are in lieu of any requirements required for permits under ss. 30.12 (3m)
3(c), 30.123 (8) (c), 30.19 (4) (c), and 30.195 (2) (c) and are in lieu of any requirements
4for contracts under s. 30.20 that relate to the state's or public's interests and shall
5be used, in conjunction with the measures required under par. (b), in any evaluation
6by the department pursuant to
33 USC 1341.
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7(5) Permit conditions. The department may impose conditions in a permit for
8a navigable water activity that it determines to be necessary to ensure that the
9navigable water activities subject to the permit meet the requirements under par. (a).
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10(6) Relationship to other laws. (a) Chapter 30 and any rules promulgated
11under that chapter apply to any navigable water activity subject to this section to the
12extent that they do not conflict with this section, except as provided in par. (b).
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(b) Sections 30.208, 30.209, and 30.2095 and any rules promulgated under
14those sections, do not apply to any navigable water activity that is subject to this
15section.
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16295.607 Shoreland and floodplain zoning. (1) (a) In this section:
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1. "Development or construction activity" means a waste site, structure,
18building, fill, or other development or construction activity.
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2. "Floodplain zoning ordinance" means a municipal floodplain zoning
20ordinance adopted under s. 87.30.
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3. "Shoreland zoning ordinance" means a shoreland zoning ordinance or
22regulation adopted under s. 59.692, 61.351, 62.231, or 281.31.