AB426: Bill Text

AB426,121,21 d. A church.

AB426,121,22 e. A cemetery.

AB426,121,23 f. A commercial or institutional building.

AB426,121,24 g. A public road.

AB426,122,5 2. Irreparable substantial environmental damage to lake or stream bodies despite adherence to the requirements of this subchapter. This subdivision does not apply to an activity that the department has authorized under statute, except that the destruction or filling in of a lake bed may not be authorized unless it is authorized under s. 295.60, 295,605, or 295.61.

AB426,122,8 3. Landslides or substantial deposition from the proposed mining operation in stream or lake beds which cannot feasibly be prevented and which have not been authorized under s. 295.60 or 295.605.

AB426,122,10 (c) That the applicant has violated, and continues to fail to comply with, this subchapter.

AB426,122,16 (d) Subject to sub. (3), that the applicant, principal shareholder of the applicant, or a related person has within 10 years before the application is submitted forfeited a mining reclamation bond that was posted in accordance with a permit or other authorization for a mining operation in the United States, unless the forfeiture was by agreement with the entity for whose benefit the bond was posted and the amount of the bond was sufficient to cover all costs of reclamation.

AB426,122,21 (e) Subject to sub. (3), that the applicant, a related person, or an officer or director of the applicant has, within 10 years before the application is submitted, been convicted of more than one felony for violations of laws for the protection of the natural environment arising out of the operation of a mining site in the United States, unless one of the following applies:

AB426,122,22 1. The person convicted has been pardoned for all of the felonies.

AB426,122,24 2. The person convicted is a related person or an officer or director of the applicant with whom the applicant terminates its relationship.

AB426,123,3 3. The applicant included in its permit application under s. 295.47 a plan to prevent the occurrence in this state of events similar to the events that directly resulted in the convictions.

AB426,123,8 (f) Subject to sub. (3), that the applicant or a related person has, within 10 years before the application is submitted, declared bankruptcy or undergone dissolution that resulted in the failure to reclaim a mining site in the United States in violation of a state or federal law and that failure has not been remedied and is not being remedied.

AB426,123,13 (g) Subject to sub. (3), that, within 10 years before the application is submitted, a mining permit or other authorization for mining issued to the applicant or a related person was permanently revoked because of a failure to reclaim a mining site in the United States in violation of state or federal law and that failure has not been and is not being remedied.

AB426,123,21 (3) Exception from denial criteria. The department may not deny a mining permit under sub. (2) (d) to (g) if the person subject to the convictions, forfeiture, permanent revocation, bankruptcy, or dissolution is a related person but the applicant shows that the person was not the parent corporation of the applicant, a person that holds more than a 30 percent ownership in the applicant, or a subsidiary or affiliate of the applicant in which the applicant holds more than a 30 percent interest at the time of the convictions, forfeiture, permanent revocation, bankruptcy, or dissolution.

AB426,123,24 (4) Statement. The department shall send a statement as to whether the applicant has satisfied the requirements of this subchapter to the applicant and to the other persons specified in s. 295.57 (4) (b) 1. to 9.

AB426,124,2 (5) Duration of approvals. (a) A mining permit is valid for the life of the mining project, subject to the enforcement provisions under s. 295.79.

AB426,124,4 (b) An approval under s. 295.60 or 295.61 remains valid for the life of the mining, subject to the enforcement provisions under s. 295.79.

AB426,124,8 (c) An approval issued for a mining project under ch. 23, 29, 30, 169, 281, 283, 285, 289, or 291, except for a permit under ch. 283 or 285 that is subject to a federal requirement limiting its duration, remains valid for the life of the mining project, subject to the enforcement provisions applicable to the approval.

AB426,124,10 (6) Effective date of approvals. A mining permit and any other approval is issued upon mailing and is final and effective upon issuance.

AB426,124,15 (7) Merchantable by-products. In a mining permit, the department shall require the operator to treat merchantable by-products as refuse if after 3 years from the time the merchantable by-products result from or are displaced by mining the material has not been transported off the mining site, unless removal is continuing at a rate of more than 12,000 cubic yards per year.

AB426,124,23 (8) General contractor or affiliate. No operator may engage a general contractor or affiliate to operate a mining site if the general contractor or affiliate has been convicted of more than one felony for violation of a law for the protection of the natural environment arising out of the operation of a mining site in the United States within 10 years before the issuance of the operator's mining permit, unless the general contractor or affiliate receives the department's approval of a plan to prevent the occurrence in this state of events similar to the events that directly resulted in the convictions.

AB426,125,2 295.59 Bonds and other security. (1) Security for reclamation. (a) Upon notification that an application for a mining permit has been approved by the department but before beginning mining, the operator shall furnish one of the following to the department:

AB426,125,5 1. A bond, furnished by a surety company licensed to do business in this state, conditioned on faithful performance of all of the requirements of this subchapter and all rules adopted by the department under this subchapter.

AB426,125,6 2. Cash.

AB426,125,7 3. Certificates of deposit.

AB426,125,8 4. Government securities.

AB426,125,10 (b) The department shall pay to the operator interest received on certificates of deposit or government securities furnished under par. (a).

AB426,125,19 (c) The operator shall furnish the security required under par. (a) in the amount equal to the estimated cost to the state of fulfilling the reclamation plan, other than the cost of long-term care of the mining waste site, in relation to the portion of the mining site that will be disturbed by the end of the following year. The department shall determine the estimated cost of reclamation of each mining site on the basis of relevant factors, including the character and nature of the lands to be reclaimed, the future suitable use of the land involved, the topography of the mining site, the methods of reclamation being employed, the depth and composition of overburden, and the depth of the ferrous mineral deposit being mined.

AB426,126,2 (2) Certificate of insurance. The operator shall submit a certificate of insurance certifying that the applicant has in force a liability insurance policy issued by an insurer authorized to do business in this state or, in lieu of a certificate of insurance, evidence that the applicant has satisfied state or federal self-insurance requirements, covering all mining operations of the operator in this state and affording personal injury and property damage protection in a total amount determined to be adequate by the department but not more than $1,000,000 and not less than $50,000.

AB426,126,8 (2m) Proof of financial responsibility for long-term care of mining waste site. An operator shall maintain proof of financial responsibility ensuring the availability of funds for compliance with the long-term care requirements specified in the waste site feasibility study and plan of operation for a period of 40 years after closing of the mining waste site. The operator shall furnish the proof of financial responsibility to the department in one of the following forms:

AB426,126,9 (a) A bond

AB426,126,10 (b) Cash.

AB426,126,11 (c) Certificates of deposit.

AB426,126,12 (d) Government securities.

AB426,126,13 (e) Insurance.

AB426,126,18 (3) Written authorization to mine. Upon approval of the operator's bonds or other security under subs. (1) and (2m), mining application, and certificate of insurance, the department shall issue written authorization to begin mining at the permitted mining site in accordance with the approved mining plan, reclamation plan, and mining waste site feasibility study and plan of operation.

AB426,127,3 (4) Reclamation bond for more than one mining site. Any operator who obtains mining permits from the department for 2 or more mining sites may elect, at the time that the mining permit for the 2nd or any subsequent mining site is approved, to post a single bond under sub. (1) in lieu of separate bonds for each mining site. An operator who chooses to post a single bond under this subsection shall post a bond in an amount equal to the estimated cost to the state determined under sub. (1) of reclaiming all mining sites the operator has under mining permits. When an operator elects to post a single bond in lieu of separate bonds previously posted on individual mining sites, the department may not release the separate bonds until the department accepts the new bond.

AB426,127,8 (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.

AB426,127,9 295.60 Impacts to wetlands. (1) Definitions. In this section:

AB426,127,11 (a) "Area of special natural resource interest" has the meaning given in s. 281.37 (1) (a).

AB426,127,14 (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.

AB426,127,17 (c) "ASNRI wetland" means a wetland that is within the boundary of an area of special natural resource interest or that is in close proximity to or that has a direct hydrologic connection to an area of special natural resource interest.

AB426,127,21 (d) "Compensation" means the implementation of measures that will function to improve functional values of wetlands or other water quality functions to offset significant adverse impacts that remain after all practicable avoidance and minimization measures have been achieved.

AB426,127,23 (e) "Federal compensatory mitigation requirement" means any mitigation requirement that is imposed by the federal government.

AB426,127,25 (f) "Federal wetland" means a wetland that is not a nonfederal wetland and includes an ASNRI wetland.

AB426,128,2 (g) "Functional values and water quality" means the water quality related wetland functional values and uses specified in sub. (6).

AB426,128,5 (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.

AB426,128,7 (i) "Mitigation" means the restoration, enhancement, or creation of wetlands to offset significant adverse impacts to other wetlands.

AB426,128,11 (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.

AB426,128,13 (k) "Nonfederal wetland" has the meaning given in s. 281.36 (1) (c) and includes an ASNRI wetland.

AB426,128,15 (L) "On-site location" means a location that is within one-half mile of an outer boundary of a mining site.

AB426,128,18 (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.

AB426,128,20 (n) "Riparian restoration project" means a project that will restore or enhance the natural beneficial uses and value of a watercourse.

AB426,128,22 (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.

AB426,128,24 (p) "Water management unit" means a subdivision of a water basin that is established on a hydrological basis by the department.

AB426,129,2 (q) "Watershed" means an area of land where all of the water drains into a common waterway.

AB426,129,4 (r) "Wetland water quality standard" means a water quality standard specified under sub. (6).

AB426,129,7 (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.

AB426,129,19 (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.

AB426,130,2 (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.

AB426,130,14 (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. For purposes of areas of special natural resource interest and federal wetlands that are ASNRI wetlands, the department shall determine that reasonable assurance exists if significant adverse impacts have been avoided or minimized to the extent practicable and any remaining significant adverse impacts are offset by compensation or mitigation. If the department determines that reasonable assurance exists, the department may not impose any additional conditions.

AB426,130,21 (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 compensation and mitigation program as provided in sub. (8).

AB426,130,24 (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.

AB426,131,4 (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.

AB426,131,8 (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.

AB426,131,18 (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 or to areas of special natural resource interest may not be a basis for a denial of a water quality certification provided that any remaining significant adverse impacts are offset under a compensation and mitigation program under sub. (8).

AB426,131,21 (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:

AB426,131,23 a. The limitations associated with the proposed location of the ferrous mineral deposits to be mined or associated with bulk sampling.

AB426,131,25 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.

AB426,132,1 c. The presumption that nonfederal wetlands will be impacted.

AB426,132,4 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.

AB426,132,9 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.

AB426,132,12 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.

AB426,132,16 (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.

AB426,132,18 (6) Wetland water quality standards. The following wetland water quality standards shall apply to any water quality certification under sub. (4) or (5):

AB426,132,23 (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 compensation and mitigation program under sub. (8). For purposes of this section, functional values and uses consist of all of the following:

AB426,132,25 1. Storm and flood water storage and retention and the moderation of water level fluctuation extremes.

AB426,133,3 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.

AB426,133,5 3. Filtration or storage of sediments, nutrients, or toxic substances that would otherwise adversely impact the quality of waters of the state.

AB426,133,7 4. Shoreline protection against erosion through the dissipation of wave energy and water velocity and anchoring of sediments.

AB426,133,11 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.

AB426,133,14 6. Habitat for resident and transient wildlife species, including mammals, birds, reptiles, and amphibians, for breeding, resting, nesting, escape cover, travel corridors, and food.

AB426,133,16 7. Recreational, cultural, educational, scientific, and natural scenic beauty values and uses.

AB426,133,20 (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:

AB426,133,21 1. The use of liquids, fill, or other solids or gases.

AB426,133,22 2. The presence of floating or submerged debris, oil, or other material.

AB426,133,23 3. The use of materials producing color, odor, taste, or unsightliness.

AB426,133,25 4. The presence of concentrations or combinations of substances that are toxic or harmful to human, animal, or plant life.