Nonmetallic Mining Reclamation Ordinance for Portage County.

The purpose of this chapter is to establish a local program to ensure the effective reclamation of nonmetallic mining sites on which nonmetallic mining takes place in Portage County after the effective date of this chapter, in compliance with Wis. Admin. Code ch. NR 135 and Wis. Stats. ch. 295, subch. I.

This chapter is adopted pursuant to Wis. Stats. § 295.13(1), Wis. Admin. Code ch. NR 135.32, and Wis. Stats. § 59.51, which are incorporated herein by reference. In addition, any pending and future revisions to Wis. Stats. § 295.13(1), Wis. Admin. Code ch. NR 135.32, and/or Wis. Stats. § 59.51 shall be incorporated by reference into this chapter.

In their interpretation and application, the provisions of this chapter shall be held to be the applicable requirements for nonmetallic mining reclamation and shall not be deemed a limitation or repeal of any other power granted by the Wisconsin Statutes outside the reclamation requirements for nonmetallic mining sites required by Wis. Stats. ch. 295, subch. I and Wis. Admin. Code ch. NR 135. Where any terms or requirements of this chapter may be inconsistent or conflicting, the more restrictive requirements or interpretation shall apply. Where a provision of this chapter is required by Wisconsin Statutes, or by a standard in Wis. Admin. Code ch. NR 135, and where the provision is unclear, the provision shall be interpreted to be consistent with the Wisconsin Statutes and the provisions of Wis. Admin. Code ch. NR 135.

Should any portion of this chapter be declared unconstitutional or invalid by a court of competent jurisdiction, the remainder of this chapter shall not be affected.

All definitions for the purposes of this chapter are those contained in Wis. Admin. Code § NR 135.03.

(1)

The requirements of this chapter apply to all operators of nonmetallic mining sites within the Portage County and as provided in Wis. Admin. Code §§ NR 135.02(1) and (2), except where exempted in subsection 7.8.7(2) and except for nonmetallic mining sites located in a city, village or town within Portage County that has adopted an ordinance pursuant to Wis. Stats. § 295.14, and Wis. Admin. Code § NR 135.32(2).

(2)

Exemptions. This chapter does not apply to the exempt activities listed in Wis. Admin. Code § NR 135.02(3).

The provisions of this chapter shall be administered by the Portage County Planning and Zoning Department.

The provisions of this chapter shall take effect on June 1, 2001.

PART II—STANDARDS

All nonmetallic mining sites subject to this chapter shall be reclaimed in conformance with the standards contained in Wis. Admin. Code ch. 135, subch. II.

PART III—PERMITTING

Nonmetallic Mining Reclamation Permit Application Required. No person may engage in nonmetallic mining or in nonmetallic mining reclamation without possessing a nonmetallic mining reclamation permit issued pursuant to the applicable reclamation ordinance unless the activity is specifically exempted in subsections 7.8.7(1) or 7.8.7(2).

(1)

Required Submittal. The operator of all nonmetallic mining sites shall apply for a reclamation permit from Portage County. All reclamation permit applications under this section shall be accompanied by the information required by Wis. Admin. Code § NR 135.18(1).

Reclamation Permit Application Contents. The operator of any nonmetallic mine site shall submit an application that meets the requirements of Wis. Admin. Code § NR 135.18(2), and the submittals required under subsection 7.8.11(1) to Portage County Planning and Zoning Department prior to beginning operations.

(1)

Reclamation Plan Requirements. All operators of nonmetallic mining sites subject to this chapter shall prepare and submit a reclamation plan that meets the requirements of Wis. Admin. Code § NR 135.19.

(2)

Existing Plans and Approvals. To avoid duplication of effort, the reclamation plan required by subsection 7.8.12(1) may, by reference, incorporate existing plans or materials that meet the requirements of this chapter.

(3)

Approval of Reclamation Plan. Portage County shall approve, conditionally approve or deny the reclamation plan submitted under this section in writing as part of permit issuance pursuant to subsection 7.8.15(1). Conditional approvals of reclamation plans shall be made according to subsection 7.8.15(5), and denials of reclamation plans made according to section 7.8.16. The operator shall keep a copy of the reclamation plan required by this section, once approved by Portage County under this chapter, at the mine site or, if not practicable, at the operator's nearest office or place of business.

(1)

Financial Assurance Requirements. All operators of nonmetallic mining sites in Portage County shall prepare and submit a proof of financial assurance of successful reclamation that meets the requirements of Wis. Admin. Code § 135.40.

(2)

Private Nonmetallic Mines. The operator of any nonmetallic mining site that applies for a reclamation permit in conformance with section 7.8.12 shall submit the proof of financial assurance required by section 7.8.13 as specified in the reclamation permit issued to it under this chapter.

(3)

Public Nonmetallic Mining. The financial assurance requirements of this section do not apply to nonmetallic mining conducted by the State of Wisconsin, a state agency, board, commission or department, or a municipality.

Portage County shall provide public notice and the opportunity for a public informational hearing as set forth in Wis. Admin. Code §§ NR 135.20(1) and (2), for any nonmetallic mining site for which a complete reclamation permit application that satisfies section 7.8.11 is received.

(1)

Local Transportation-Related Mines. No public notice or informational hearing is required for a nonmetallic mining reclamation permit issued to a local transportation-related mine pursuant to subsection 7.8.15(3).

(1)

Permit Required. No person may engage in nonmetallic mining or nonmetallic mining reclamation in Portage County without obtaining a reclamation permit issued under this section, except nonmetallic mining sites exempt from this chapter as provided in subsection 7.7.7(2).

(2)

Permit Issuance. Applications for reclamation permits for nonmetallic mining sites that satisfy section 7.8.11 shall be issued a reclamation permit or otherwise acted on as provided in Wis. Admin. Code § NR 135.21(2). The permit shall require compliance with a reclamation plan submitted by the applicant that conforms with subsection 7.8.12(1), and provision by the applicant of financial assurance that conforms with section 7.8.13 payable to Portage County prior to beginning mining.

(3)

Automatic Permit for Local Transportation-Related Mines. Portage County shall issue an automatic permit under this subsection for any borrow site operated to provide material for a locally administered transportation project that meets the criteria in Wis. Admin. Code § NR 135.23(1)(a). This automatic permit shall be issued according to the provisions of Wis. Admin. Code §§ NR 135.23(1)(b) through (j).

(4)

Expedited Review. Any operator of a nonmetallic mining site may obtain an expedited review of a reclamation permit application by paying the expedited review fee specified in section 7.8.25(2). The expedited review shall be carried out according to the provisions of Wis. Admin. Code § NR 135.23(2). Such expedited review shall not waive, shorten or otherwise affect the public notice and right of hearing pursuant to section 7.8.14.

(5)

Permit Conditions. Permits issued under this section may include conditions as provided in Wis. Admin. Code § NR 135.21(2). One required condition shall be that new mines shall obtain financial assurance prior to beginning mining pursuant to Wis. Admin. Code § NR 135.40.

An application for a nonmetallic mining reclamation permit shall be denied if any of the factors specified in Wis. Admin. Code § NR 135.22, exist.

(1)

Scope of Alternative Requirements Approvable. An operator of a nonmetallic mining site may request an alternative requirement to any reclamation standard established in section 7.8.10. Such a request may be made only on the basis of the criteria set forth in Wis. Admin. Code § NR 135.26(1).

(2)

Procedures. The operator of a nonmetallic mining site requesting an alternate requirement in subsection 7.8.17(1) shall demonstrate all the criteria in Wis. Admin. Code § NR 135.26(1). This shall be submitted in writing to the Portage County Planning and Zoning Department.

(3)

Transmittal of Decision on Request For Alternate Requirements. The decision on a request for alternative reclamation requirements shall be in writing to the applicant and shall include documentation of why the alternative requirement was or was not approved.

(4)

Notice to Wisconsin Department of Natural Resources. Notice shall be provided to the Wisconsin Department of Natural Resources as provided in Wis. Admin. Code § NR 135.26(3)(a).

A nonmetallic mining reclamation permit issued under this chapter shall last through operation and reclamation of the nonmetallic mining site, unless suspended or revoked pursuant to subsection 7.8.31(2), or as limited under Wis. Admin. Code § NR 135.27, where the mine operator is not the landowner.

A nonmetallic mining reclamation permit issued under this chapter shall be transferred to a new owner or operator upon satisfaction of the conditions in Wis. Admin. Code § NR 135.28.

For any nonmetallic mining site which had a reclamation permit previously issued pursuant to Wis. Admin. Code ch. NR 135, that becomes subject to reclamation permitting authority by the previously-issued municipal reclamation permit's terms and conditions shall remain in force until they can be modified pursuant to subsection 7.8.22(1).

Any permitting decision or action made under this chapter may be reviewed as set forth in Wis. Admin. Code § NR 135.30.

PART IV—ADMINISTRATION

(1)

By Portage County. A nonmetallic mining reclamation permit issued under this chapter may be modified if found that, due to changing conditions, the nonmetallic mining site is no longer in compliance with this chapter. Such modification shall be by an order conforming with the procedures in section 7.8.31 and as provided in Wis. Admin. Code § NR 135.24(1).

(2)

At the Operator's Option. If the operator of any nonmetallic mine that holds a reclamation permit issued under this chapter desires to modify such permit or reclamation plan approved under this chapter, it may request such modification by submitting a written application for such modification. The application for permit or plan modification shall be acted on using the standards and procedures of this chapter.

(3)

Required by the Operator. The operator of any nonmetallic mine that holds a reclamation permit issued under this chapter shall request a modification of such permit if required under the circumstances set out in Wis. Admin. Code § NR 135.27. Such application for permit modification shall be acted on using the standards and procedures of this chapter.

(4)

Review. All actions on permit modifications requested or initiated under this section are subject to review under section 7.8.21.

(1)

Grounds. Portage County may suspend or revoke a nonmetallic mining reclamation permit issued pursuant to this chapter if it finds any of the grounds listed in Wis. Admin. Code § NR 135.25(1).

(2)

Procedures. If Portage County finds that the grounds for suspension or revocation of a nonmetallic mining reclamation permit set forth in subsection 7.8.23(1) have been met, it may issue a special order suspending or revoking such permit as set forth in subsection 7.8.31(2).

(3)

Consequences. The consequences of a reclamation permit suspension or revocation order under subsection 7.8.23(2) shall be as set forth in Wis. Admin. Code §§ NR 135.25(2) and (3).

(1)

Contents and Deadline. Annual reports shall be submitted by the operators of nonmetallic mining sites that satisfy the requirements of Wis. Admin. Code § NR 135.36. These reports shall be for reclamation during a calendar year, and submitted in writing within 60 days of the end of each calendar year. Annual reports shall be submitted until reclamation at each nonmetallic mining site is certified as complete under subsection 7.8.28(3).

(2)

Inspection in Lieu of Report. An inspection may be done to obtain the information required in subsection 7.8.24(1) by written documentation of an inspection completed during a calendar year, as set forth in Wis. Admin. Code § NR 135.36(4).

(3)

Retention of Annual Reports. Annual reports submitted under this section or inspection records that replace them shall be retained for at least ten years after the calendar year. These records, or accurate copies of them, shall be made available to the Wisconsin Department of Natural Resources upon written request or during its inspection or audit activities carried out pursuant to Wis. Admin. Code ch. NR 135.

(1)

Amount and Applicability. A person who intends to operate a nonmetallic mining site for which a permit application has been submitted under subsection 7.8.11(2) shall submit a nonrefundable plan review fee as set by the Planning and Zoning Committee. No plan review fee may be assessed under this section for any nonmetallic mine site for which an application for an automatic reclamation permit is submitted that meets the requirements of subsection 7.8.11(2) or for any local transportation-related mine issued an automatic permit under subsection 7.8.15(3). A separate plan review fee shall be paid under this section for any modification to an existing reclamation plan submitted pursuant to section 7.8.22. The plan modification review fee shall be 50 percent of the plan review fee or expedited fee based on the applicant's request.

(2)

Expedited Plan Review Fee. A person who intends to operate a nonmetallic mining site for which a permit application has been submitted under subsection 7.8.11(2) may obtain expedited reclamation plan review by paying double the regular fee. Such fee shall be in addition to that required in subsection 7.8.25(1).

(3)

Relation to Annual Fee. Any reclamation plan review fee or expedited reclamation plan review fee collected under this section shall be added to and collected as part of the first annual fee collected under section 7.8.26.

Fee Schedule
Nonmetallic Mining

*Pursuant to section 7.8.25(1) The plan modification review fee shall be 50 percent of the plan review fee or expedited fee based on the applicant's request.

Table 2 Wis. Admin. Code § NR 135.39(4)(2)(c)

(1)

Areas Subject to Fees, Procedures and Deadlines. Annual fees apply to operators of all nonmetallic mining sites subject to reclamation permits issued under this chapter shall pay annual fees. Fees paid under this section shall include both a share for the Wisconsin Department of Natural Resources under subsection 7.8.26(2) and a share for Portage County under subsection 7.8.26(3) that equals as closely as possible the costs of examination and approval on nonmetallic mining reclamation plans and the inspection of nonmetallic mining reclamation sites. These fees shall be calculated based on the amount of unreclaimed acres of each site, as defined in Wis. Admin. Code § NR 135.39(1), and according to its provisions. Such fees apply to a calendar year or any part of a year in which nonmetallic mining takes place, until final reclamation is certified as complete under section 7.8.28. Fees shall be paid no later than January 31 before the year for which they apply pursuant to Wis. Admin. Code § NR 135.39(2)(b).

(2)

Wisconsin Department of Natural Resources Share of Fees. Fees paid under this section shall include a share for the Wisconsin Department of Natural Resources equal to the amount specified in Wis. Admin. Code § NR 135.39(3). For sites on which no nonmetallic mining has taken place during a calendar year, fees to be paid under this section for the following year shall be $15.00. Portage County shall forward fees collected under this subsection to the Wisconsin Department of Natural Resources by March 31.

(3)

County Fee. Fees paid under this section shall also include an annual fee due which shall be determined on an annual basis by the Planning and Zoning Committee to be established on an unreclaimed acre basis, and equal as closely as possible the County cost of administering the reclamation program.

(4)

Reduced Fee of Inactive Mines. Any site on which no nonmetallic activity has taken place in a calendar year shall be assessed a fee for the following calendar year of $50.00.

(1)

Reporting. An annual report shall be sent to the Wisconsin Department of Natural Resources by March 31 for the previous calendar year including the information required by Wis. Admin. Code § NR 135.37.

(2)

Documentation. Information shall be maintained as set forth in Wis. Admin. Code § NR 135.47(3), and made it available to the Wisconsin Department of Natural Resources for that agency's audit of the reclamation program pursuant to Wis. Admin. Code § NR 135.47.

(1)

Reporting. The operator of a nonmetallic mining site may certify completion of reclamation for a portion or all of the nonmetallic mining site pursuant to a reclamation plan prepared and approved pursuant to this chapter and Wis. Admin. Code ch. NR 135.

(2)

Reporting of Interim Reclamation. The operator of a nonmetallic mining site may report completion of interim reclamation as specified in the reclamation plan for the site prepared and approved pursuant to this chapter and Wis. Admin. Code ch. NR 135. Reporting of interim reclamation shall be done according to the procedures in subsection 7.8.28(1).

(3)

Certification of Completed Reclamation. An inspection of a nonmetallic mining site for which reporting of reclamation or interim reclamation has been submitted pursuant to this subsection will be completed within 60 days of receipt, and a determination made in writing in accordance with Wis. Admin. Code § NR 135.40(7)(c). If it is determined that interim or final reclamation is complete, including revegetation as specified in a plan that conforms with section 7.8.12, Portage County shall issue the mine operator a written certificate of completion.

(4)

Effect of Completed Reclamation. If reclamation is certified as complete under subsection 7.8.28(3) for part or all of a nonmetallic mining site, then:

(a)

No fee shall be assessed under section 7.8.26 for the area so certified.

(b)

The financial assurance required by section 7.8.13 shall be released.

(5)

Effect of Inaction Following Report of Completed Reclamation. If no written response as required by subsection 7.8.28(3) for an area of the mine site reported as reclaimed or interim reclaimed is given within 60 days of receiving such request, any annual fee under section 7.8.26 shall be refunded.

When all final reclamation required by a reclamation plan conforming to section 7.8.12 and required by this chapter is certified as complete pursuant to section 7.8.27, a written statement shall be sent to the operator of the nonmetallic mining site, thereby terminating the reclamation permit.

PART V—ENFORCEMENT

For the purpose of ascertaining compliance with the provisions of Wis. Stats. ch. 295, subch. I, Wis. Admin. Code ch. NR 135, or this chapter, any authorized officer, agent, employee or representative of Portage County may inspect any nonmetallic mining site subject to this chapter as provided in Wis. Stats. § 295.17(1) and Wis. Admin. Code § NR 135.42.

(1)

Enforcement Orders. Orders may be issued as set forth in Wis. Stats. § 295.19(1)(a), to enforce Wis. Stats. ch. 295, subch. I, Wis. Admin. Code ch. NR 135, this chapter, a permit issued pursuant to this chapter or a reclamation plan required by section 7.8.12 and a permit issued under this chapter. A violation of this chapter, an order or permit issued pursuant to this chapter or a reclamation plan required by section 7.8.12 and a permit issued under this chapter shall be considered a violation of Wis. Stats. ch. 295, subch. I, and Wis. Admin. Code ch. NR 135.

(2)

Special Orders. Orders may be issued as a special order as set forth in Wis. Stats. § 295.19(1)(b) and (c), suspending or revoking a nonmetallic mining reclamation permit pursuant to section 7.8.23, or directing an operator to immediately cease an activity regulated under Wis. Stats. ch. 295, subch. I, Wis. Admin. Code ch. NR 135, or this chapter until the necessary plan approval is obtained.

(3)

Review of Orders. An order issued under subsection 7.8.31(1) or subsection 7.8.31(2) may be reviewed as provided in Wis. Admin. Code § NR 135.43(2).

(4)

Citations. Citations may be issued under Wis. Stats. § 66.119. and Portage County Ordinance 5.1 to collect forfeitures or require any action needed to enforce Wis. Stats. ch. 295, subch. I, Wis. Admin. Code ch. NR 135, this chapter, a permit issued pursuant to this chapter or a reclamation plan required by section 7.8.12 and a permit issued under this chapter. The issuance of a citation under this subsection shall not preclude proceeding under any other ordinance or law relating to the same or any other matter. Proceeding under any other ordinance or law relating to the same or any other matter shall not preclude the issuance of a citation under this subsection.

(5)

Enforcement. Requests for enforcement action shall be submitted for any order issued under section 7.8.31 to the corporation counsel enforcement as provided in Wis. Stats. § 295.19(1)(d).

Any violation of Wis. Stats. ch. 295, subch. I, Wis. Admin. Code ch. NR 135, this chapter, a permit issued pursuant to this chapter or a reclamation plan required by s. 13 and a permit issued under this chapter may result in forfeitures as provided in Wis. Stats. § 295.19(3).

(Ord. of 5-15-2001, eff. 6-1-2001; Ord. of 1-16-2007; Res. No. 049-2024-2026, Att., 10-15-2024)

Editor's note— Res. No. 049-2024-2026, Att., adopted Oct. 15, 2024, repealed the Fee Schedule Nonmetallic Mining Portage County Reclamation Plan Review Fee, which derived from an ordinance adopted June 1, 2001; an ordinance adopted Jan. 15, 2006; an ordinance adopted Jan. 16, 2007. For similar provisions see, § 7.8.26.