(1) DEFINITIONS. In this section: (a) “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. (b) “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. (c) “Federal wetland” means a wetland that is subject to federal jurisdiction under 33 USC 1344. (d) “Fill material” has the meaning given in 33 CFR 323.2 (e), as the meaning exists on July 1, 2012. (e) “Mitigation” means the restoration, enhancement, creation, or preservation of wetlands to compensate for adverse impacts to other wetlands. (f) “Mitigation bank” means a system of accounting for wetland loss and compensation that includes one or more sites where wetlands are restored, enhanced, created, or preserved to provide credits to be subsequently applied or purchased in order to compensate for adverse impacts to other wetlands. (g) “On-site location” means a location that is on a mining site or within one-half mile of an outer boundary of a mining site. (h) “Practicable” means reasonably available and capable of being implemented after taking into consideration cost, site availability, available technology, logistics, and proximity to the proposed project site, in light of the overall purpose and scope of the project. (i) “Water basin” means the Lake Michigan basin, the Lake Superior basin, or the Mississippi River basin or other water basin established by the department. (j) “Water management unit” means a subdivision of a water basin that is established on a hydrological basis by the department. (k) “Water quality standard” means a wetland water quality standard specified under sub. (5) or any other water quality standard set by rule under s. 281.15. (L) “Wetland impact evaluation” means an evaluation of impacts to a wetland. (1m) APPLICABILITY. Subsections (2) to (11) do not apply to a wetland individual permit or other approval that requires a wetland impact evaluation if the operator files the application for the wetland individual permit or other approval after the department issues the mining permit for the mining operation. (2) 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. Any owner or lessee of land, or a holder of an easement in land, may request that the department provide a wetland determination or wetland boundary delineation for an application for a wetland individual permit under this section or for another approval for which a wetland impact evaluation is required. The department may rely on wetland determinations and wetland boundary delineations made by other agencies and consultants. If the applicant 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 a mining 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. (3) SCOPE; DISCHARGES; OTHER IMPACTS. (a) Scope. Except as otherwise provided under this section, this section applies to wetland individual permits and any other approvals for which wetland impact evaluations are required. (b) Discharges of dredged or fill material. No person may discharge dredged material or fill material associated with a mining operation or bulk sampling unless the discharge is authorized under a wetland individual permit issued under this section or under a wetland general permit issued under s. 281.36 (3g). The department may not issue a wetland individual permit unless it makes a finding under sub. (6) (a) that the discharge will comply with all applicable water quality standards. Section 281.36 (3g) and (11), and the rules promulgated under s. 281.36 (3g) and (11), apply to authorizations to proceed under general permits. Notwithstanding s. 281.36 (3g) (h) 2., a person receiving authorization to proceed under a wetland general permit for a mining activity other than bulk sampling may not proceed until a mining permit is issued. (c) Other impacts. For an approval which requires a wetland impact evaluation for an activity other than a discharge of dredged material or fill material, the approval may not be issued unless the department determines that the activity will comply with all applicable water quality standards. (4) REVIEW BY DEPARTMENT. (a) Avoidance or minimization of impacts. When applying for a wetland individual permit or for another approval for which a wetland impact evaluation is required, an applicant shall include in the application an analysis of the practicable alternatives that will avoid and minimize the adverse impacts on wetland functional values and that will not result in any other significant adverse environmental consequences. (b) Practicable alternatives. The department shall review the analysis of practicable alternatives included in the application under par. (a). The department shall limit its review to those practicable alternatives that are located at the site of the discharge or other activity and that are located adjacent to that site if the applicant has demonstrated that the proposed project causing the discharge or other activity will result in a demonstrable economic public benefit. (c) Assessing impacts. In its review under this subsection, the department shall consider all of the following factors when it assesses the impacts to wetland functional values: 1. The direct impacts of the proposed discharge or other activity to wetland functional values. 2. The cumulative impacts attributable to the proposed discharge or other activity that may occur to wetland functional values based on past impacts or reasonably anticipated impacts caused by similar discharges or activities in the area affected by the discharge or activity. 3. Potential secondary impacts of the proposed discharge or other activity to wetland functional values. 4. The impact on functional values resulting from the mitigation program under sub. (8). 5. The net positive or negative environmental impact of the mining operation. (d) Assessing impacts; geographical scope. In its review under this subsection, the department shall evaluate whether the discharge or other activity will result in a significant adverse impact to wetland functional values by doing all of the following: 1. Comparing the functional values 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. 2. Taking into consideration the floristic province in which the mining site is located. (e) Method for assessing impacts. In issuing a wetland individual permit under this section or in conducting a wetland impact evaluation, the department shall determine the impact of a proposed discharge or other activity upon the wetland functional values by using wetland ecological evaluation methods that are jointly accepted by the U.S. army corps of engineers and the department and that are appropriate to the affected wetland. (f) General permits. Paragraphs (a) to (e) do not apply to authorizations to proceed under a general permit issued under s. 281.36 (3g). (5) WETLAND WATER QUALITY STANDARDS. The following wetland water quality standards apply to any wetland individual permit issued under this section or to any wetland impact evaluation: (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 consist of all of the following: 1. Storm and flood water storage and retention and the moderation of water level fluctuation extremes. 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. 3. Filtration or storage of sediments, nutrients, or toxic substances that would otherwise adversely impact the quality of waters of the state. 4. Shoreline protection against erosion through the dissipation of wave energy and water velocity and anchoring of sediments. 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. 6. Habitat for resident and transient wildlife species, including mammals, birds, reptiles, and amphibians, for breeding, resting, nesting, escape cover, travel corridors, and food. 7. Recreational, cultural, educational, scientific, and natural scenic beauty values and uses. (b) All of the following shall be minimized in order to avoid significant adverse impacts for the purpose of maintaining or enhancing the wetland functional values identified under par. (a), and any minimization of the following must be taken into account in the department’s evaluation of significant adverse impacts: 1. The use of liquids, fill, or other solids or gases. 2. The presence of floating or submerged debris, oil, or other material. 3. The use of materials producing color, odor, taste, or unsightliness. 4. The presence of concentrations or combinations of substances that are toxic or harmful to human, animal, or plant life. 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 all of the following: a. Water currents and erosion and sedimentation patterns. b. Water temperature variations. c. The chemical, nutrient, and dissolved oxygen regime of the wetland. d. The movement of aquatic fauna. e. The pH of the wetland. f. Water levels or elevations. 6. Adverse effects on existing habitat and populations of animals and vegetation found in wetlands. (6) DECISION BY DEPARTMENT. (a) The department shall make a finding that a discharge of dredged material or fill material is in compliance with all applicable water quality standards and shall issue a wetland individual permit if the department determines that all of the following apply: 1. The proposed project of which the discharge is a part represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts. 2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken. 3. The proposed discharge will not result in significant adverse impact to wetland functional values, subject to par. (b); in significant adverse impact to water quality; or in other significant adverse environmental consequences. (b) Notwithstanding par. (a) 3., if significant adverse impacts to wetland functional values will remain after the adverse impacts have been avoided and minimized to the extent practicable, the department shall issue the permit if the department determines that the remaining impacts will be compensated for under a mitigation program under sub. (8). (c) The department may not deny an approval for an activity for which a wetland impact evaluation is required, other than a discharge of dredged material or fill material, on the basis of the impacts from the activity on wetlands if the department determines that all of the following apply: 1. The proposed project of which the activity is a part represents the least environmentally damaging practicable alternative taking into consideration practicable alternatives that avoid wetland impacts. 2. All practicable measures to minimize the adverse impacts to wetland functional values will be taken. 3. The proposed activity will not result in significant adverse impact to wetland functional values, subject to par. (d); in significant adverse impact to water quality; or in other significant adverse environmental consequences. (d) Notwithstanding par. (c) 3., if significant adverse impacts to wetland functional values will remain after the adverse impacts have been avoided and minimized to the extent practicable, the department may not deny the permit on the basis of the impacts from the activity on wetlands if the department determines that the remaining impacts will be compensated for under a mitigation program under sub. (8). (e) Paragraphs (a) to (d) do not apply to authorizations to proceed under a general permit issued under s. 281.36 (3g). (7) FEDERAL WETLANDS. (a) For a wetland individual permit under this section which involves a federal wetland or for any other approval for which a wetland impact evaluation for a federal wetland is required, any mitigation program submitted by the applicant under sub. (8) shall include all the federal mitigation measures proposed by the applicant. The department shall review the federal mitigation measures and shall determine whether it has reasonable assurance that these will compensate for any significant adverse impacts to wetland functional values, any significant adverse impacts to water quality, and any other significant adverse environmental consequences. The department shall recognize all federal compensatory mitigation measures as being eligible for the purpose of making this determination. If the department determines that reasonable assurance exists, the department may not impose any additional conditions on the permit or other approval. If the department determines that reasonable assurance does not exist, it may impose conditions on the permit or other approval that are in addition to required federal compensatory mitigation measures, but such conditions shall be limited to those that are necessary to compensate for any significant adverse impacts to wetland functional values, any significant adverse impacts to water quality, and any other significant adverse environmental consequences that will remain after completion of the federal mitigation measures. Any conditions imposed by the department may be satisfied through a mitigation program as provided in sub. (8). In imposing any conditions under this paragraph, the department may not require that the number of acres to be mitigated be greater than the number that is required under federal law. (b) A wetland individual permit issued under this section that authorizes a discharge of dredged or fill material in a federal wetland constitutes water quality certification as required by 33 USC 1341 (a). Any other approval issued by the department for which a wetland impact evaluation is required for a federal wetland constitutes water quality certification under 33 USC 1341 (a) with respect to the discharges or activities affecting the federal wetland. (8) MITIGATION PROGRAM. (a) Definition. Notwithstanding s. 295.60 (1) (i) , in this section “water basin” means the Lake Michigan basin, the Lake Superior basin, or the Mississippi River basin. (am) Contents. A mitigation program to compensate for adverse impacts to functional values of wetlands shall contain proposed projects for mitigation and a schedule for implementing the projects. The department may not consider mitigation in determining whether to grant authorization to proceed under a general permit under s. 281.36 (3g). These projects may be performed by a person other than the applicant, subject to the department’s approval of the projects and schedule. (b) Option of applicant. An applicant submitting a program under par. (am) may submit options for mitigation. These options may include any combination of the types of mitigation specified in par. (dm). 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. (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. (d) Sequence of mitigation. 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 require that the applicant conduct mitigation within the same watershed in which the wetland to be affected is located, unless mitigation in the same watershed is not practicable or ecologically preferable. If mitigation within the same watershed is not practicable or ecologically preferable, the department shall require that the applicant conduct mitigation within the same water basin in which the wetland to be affected is located. If mitigation in the same water basin is not practicable or ecologically preferable, the applicant may conduct mitigation at a site elsewhere in the state. (dm) Types of mitigation. Mitigation under a program under par. (am) may be accomplished through any of the following types: 1. Implementation of a project for mitigation by an applicant or other person approved by the department. 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). 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. 4. Participation in the in lieu fee subprogram under s. 281.36 (3r) (e). (e) Ceded territory. 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, that will be required to compensate for adverse impacts to wetlands located in the ceded territory shall occur within the ceded territory. If the department determines under par. (d) that mitigation will occur within a certain watershed or water basin and if the watershed or water basin is not located totally in the ceded territory, the mitigation shall occur within that part of the watershed or water basin that is located in the ceded territory. (9) SUBSEQUENT PROTECTION FOR WETLANDS. (a) If a wetland individual permit issued under this section, or other approval that required a wetland impact evaluation, authorizes a mitigation project, the person who is the holder of the permit or approval shall grant a conservation easement under s. 700.40 to the department or shall execute a comparable legal instrument to ensure that a wetland that is being restored, enhanced, created, or preserved 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 or execute this instrument within the time limit set forth in the mining permit. If the holder subsequently grants the conservation easement or executes the instrument, the department shall reinstate the mining permit. (b) Notwithstanding par. (a), the department shall modify or release a conservation easement granted under par. (a) or shall void a comparable legal instrument executed under par. (a) if all of the following apply: 1. The department determines that part or all of a wetland subject to the mitigation project ceases to be a wetland. 2. The person who is required to grant the conservation easement or execute the legal instrument did not contribute to the loss of the wetland specified in subd. 1. 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. (10) EXEMPTIONS. (a) Artificial wetlands. All of the following artificial wetlands that are associated with a mining operation or bulk sampling are exempt from the wetland individual permit and mitigation requirements under this section, from the general permit requirements under s. 281.36 (3g), and from any requirement for any other approval for which a wetland impact evaluation is required: 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. 2. An artificial wetland that is an active sewage lagoon, cooling pond, waste disposal pit, fish rearing pond, or landscape pond. 3. An artificial wetland that is an actively maintained farm drainage or roadside ditch. 4. An artificial wetland as part of an active mining operation. (b) Other exempted activities. All of the following activities that are associated with a mining operation or bulk sampling are exempt from the wetland individual permit and mitigation requirements under this section, from the general permit requirements under s. 281.36 (3g), and from any requirement for any other approval for which a wetland impact evaluation is required if the applicant minimizes any adverse effect on the environment as a result of any of these activities: 1. Maintenance, emergency repair, or reconstruction of damaged parts of structures that are in use in a wetland. 2. Construction or maintenance of irrigation ditches. 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. 4. Maintenance of drainage ditches. (c) An exemption under par. (a) or (b) does not apply to a federal wetland if the exemption conflicts with 33 USC 1344. (11) RELATIONSHIP TO OTHER LAWS. None of the following apply to a mining operation or bulk sampling: (a) Section 281.36, except as otherwise specifically provided in this section. (b) Any rule promulgated under s. 281.36, except as otherwise specifically provided in this section. (c) Any other rule promulgated by the department that relates to wetlands that conflicts with this section.
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