Section 70.395. Distribution and apportionment of tax.

 

(1)   Definition. In this section, “first-dollar payment" means an amount equal to $100,000 adjusted as provided in s. 70.375 (6) .

(1e)   Distribution. Fifteen days after the collection of the tax under ss. 70.38 to 70.39 , the department of administration, upon certification of the department of revenue, shall transfer the amount collected in respect to mines not in operation on November 28, 1981, to the investment and local impact fund, except that, after the payments are made under sub. (2) (d) 1. , 2. , and 2m. , the department of administration shall transfer 60 percent of the amount collected from each person extracting ferrous metallic minerals to the investment and local impact fund and 40 percent of the amount collected from any such person to the general fund.

(2)   Investment and local impact fund.

(b) There is created an investment and local impact fund under the jurisdiction and management of the investment and local impact fund board, as created under s. 15.435 .

(c) The board shall, according to procedures established by rule:

1. Certify to the department of administration the amount of funds to be distributed under pars. (d) to (g) and to be paid under par. (j) .

2. Determine the amount which is not distributed under subd. 1. which shall be invested under s. 25.17 (1) (jc) .

(d) Annually on the first Monday in January, except as provided in subd. 5. b. and c. , the department of administration shall distribute, upon certification by the board:

1. To each county in which metalliferous minerals are extracted, the first-dollar payment.

1m. To each county in which metalliferous minerals are extracted, 20 percent of the tax collected annually under ss. 70.38 to 70.39 from persons extracting metalliferous minerals in the county or $250,000, whichever is less, to be used for mining-related purposes.

2. To each city, town or village in which metalliferous minerals are extracted, the first-dollar payment minus any payment during that year under par. (d) (intro.) or subd. 5. If the minable ore body is located in 2 contiguous municipalities and if at least 15 percent of the minable ore body is in each municipality, each qualifying municipality shall receive a full payment specified in this subdivision as if the ore body were located solely within that municipality. The department of revenue shall annually change the dollar amount specified in this subdivision as specified in s. 70.375 (6) except that the dollar amount may not be reduced below the dollar amount under this subdivision on November 28, 1981.

2m. To any Native American community that has tribal lands within a municipality qualified to receive a payment under this section, an amount equal to $100,000 minus any payments during that year under par. (d) (intro.) or subd. 5. Annually, the dollar amount in this subdivision shall be adjusted as specified under s. 70.375 (6) .

3. Where the tax under ss. 70.37 to 70.39 is in respect to a mining site which is located in more than one county or municipality the distribution under subds. 1. and 2. shall be as follows:

a. On or before February 10 of each year persons extracting metalliferous minerals in this state shall report to the department the amount of crude ore extracted from each municipality and county in the state in the previous year. The data shall detail the total amount of crude ore extracted from each mine and the portion of the total taken from each municipality and county. This data shall be included in the report required by s. 70.38 (1) and (2) .

c. Each county's proportion of the amount determined under subd. 1. shall be equal to the ratio of the amount of crude ore extracted from the mine in that county to the total amount of crude ore extracted from the mine multiplied by the amount determined under subd. 1.

4. To the investment and local impact fund an amount equal to 10 percent of the taxes paid by each mine plus all accrued interest on that amount for a project reserve fund. The funds shall be withdrawn by the investment and local impact fund board to be used for the following purposes in respect to the municipality or municipalities in which the mine is located:

a. To ensure an annual payment to each municipality under subds. 1. and 2. in an amount equal to the average payment for the 3 previous years to that municipality.

b. To reimburse municipalities for costs associated with the cessation of mining operations.

c. To indemnify municipalities for reclamation expenses.

5.

a. To each municipality that contains a metalliferous mining site in respect to which an application for a mining permit has been made prior to January 1, 1986, until a final decision is made on that application or for 4 years, whichever is the shorter period, $100,000 annually. To each municipality that contains a metalliferous mining site at which construction has begun prior to January 1, 1989, but at which extraction has not been engaged in for at least 3 years, $100,000 annually. The funds under this subdivision shall be used only for mining-related purposes. Payments under this subdivision are payable 30 days following submission of the application or commencement of construction. Payments shall be made on a project fiscal year basis commencing on the date of submission or commencement of construction. In this subdivision, “municipality" means a city, town or village and any Native American community contained within such a city, town or village.

b. Annually, after the board has determined that the use of the funds is for mining-related purposes associated with construction of the specific project in the project fiscal year, to each county that contains a metalliferous mining site at which construction is begun prior to January 1, 1989, but at which extraction has not been engaged in, $300,000 annually reduced by the amount of property taxes paid to the county during the current fiscal year on improvements and also reduced by any payments received under subds. 1. and 1m. The funds under this subparagraph shall be used only for mining-related purposes. Payments shall be made on a project fiscal year basis commencing on the date of commencement of construction, and are payable 30 days following the close of the fiscal year.

c. To each Native American community, county, city, town and village that contains at least 15 percent of a minable ore body in respect to which construction has begun at a metalliferous mining site but in respect to which extraction has not begun, $100,000 as a one-time payment. Those payments shall be made on or before the date 30 days after the beginning of construction.

(dc)

1. Each person intending to submit an application for a mining permit under s. 293.37 or 295.47 shall pay $75,000 to the department of revenue for deposit in the investment and local impact fund at the time that the person notifies the department of natural resources under s. 293.31 (1) or 295.465 of that intent.

2. A person making a payment under subd. 1. shall pay an additional $75,000 upon notification by the board that the board has distributed 50 percent of the payment under subd. 1.

3. A person making a payment under subd. 2. shall pay an additional $75,000 upon notification by the board that the board has distributed all of the payment under subd. 1. and 50 percent of the payment under subd. 2.

4. Six months after the signing of a local agreement under s. 293.41 or 295.443 for the proposed mine for which the payment is made, the board shall refund any funds paid under this paragraph but not distributed under par. (fm) from the investment and local impact fund to the person making the payment under this paragraph.

(dg) Each person constructing a metalliferous mining site shall pay to the department of revenue for deposit in the investment and local impact fund, as a construction fee, an amount sufficient to make the construction period payments under par. (d) 5. in respect to that site. Any person paying a construction fee under this paragraph may credit against taxes due under s. 70.375 an amount equal to the payments that the taxpayer has made under this paragraph, provided that the credit does not reduce the taxpayer's liability under s. 70.375 below the amount needed to make the first-dollar payments under par. (d) 1. , 2. and 2m. for that year in respect to the taxpayer's mine. Any amount not creditable because of that limitation in any year may be carried forward.

(e) If the appropriations under ss. 20.566 (7) (e) and (v) in any year are insufficient to make all payments under par. (d) , full payments shall be made in the order listed in subds. 1. to 4. , except that construction period payments under par. (d) 5. for which a person mining has made a construction fee payment under par. (dg) shall be made first. If funds are insufficient to pay the full amounts payable at a particular priority level listed in subds. 1. to 4. , payments shall be prorated among the entities entitled to payments at that level:

1. Payments under par. (d) 1. , 2. and 2m.

2. Payments under par. (d) 1m.

3. Payments under par. (d) 4.

4. Mining permit application payments under par. (d) 5.

(f) A school district may apply to the board for payments from the fund in an amount equal to the school district's nonshared costs. If the board finds that the school district has incurred costs attributable to enrollment resulting from the development and operation of metalliferous mineral mining and if the board and the school board of the school district reach an agreement on a payment schedule, the board shall certify to the department of administration for payment to the school district an amount equal to all or part of the nonshared costs of the school district in the year in which the initial agreement was reached. The board and the school district may, by mutual consent, modify the provisions of the agreement at any time. The payment shall be considered a nondeductible receipt for the purposes of s. 121.07 (6) . In this paragraph, “nonshared costs" means the amount of the school district's principal and interest payments on long-term indebtedness and annual capital outlay for the current school year, which is not shared under s. 121.07 (6) (a) or other nonshared costs and which is attributable to enrollment increases resulting from the development of metalliferous mineral mining operations.

(fm) The board may distribute a payment received under par. (dc) to a county, town, village, city, tribal government or local impact committee authorized under s. 293.41 (3) or 295.443 only for legal counsel, qualified technical experts in the areas of transportation, utilities, economic and social impacts, environmental impacts and municipal services and other reasonable and necessary expenses incurred by the recipient that directly relate to the good faith negotiation of a local agreement under s. 293.41 or 295.443 for the proposed mine for which the payment is made.

(g) The board may distribute the revenues received under sub. (1e) or proceeds thereof in accordance with par. (h) for the following purposes, with a preference to private sector economic development projects under subd. 3. , as the board determines necessary:

1. Protective services, such as police and fire services associated with the construction and operation of the mine site.

2. Highways, as defined in s. 990.01 (12) , repaired or constructed as a consequence of the construction and operation of the mine site.

3. Studies and projects for local private sector economic development.

4. Monitoring the effects of the mining operation on the environment.

5. Extraordinary community facilities and services provided as a result of mining activity.

6. Legal counsel and technical consultants to represent and assist municipalities appearing before state agencies on matters relating to metalliferous mineral mining.

7. Other expenses associated with the construction, operation, cessation of operation or closure of the mine site.

8. The preparation of areawide community service plans for municipalities applying for funds under par. (h) which identify social, economic, educational and environmental impacts associated with mining and set forth a plan for minimizing the impacts.

9. Provision of educational services in a school district.

10. Expenses attributable to a permanent or temporary closing of a mine including the cost of providing retraining and other educational programs designed to assist displaced workers in finding new employment opportunities and the cost of operating any job placement referral programs connected with the curtailment of mining operations in any area of this state.

(h) Distribution under par. (g) shall be as follows:

1. Distribution shall first be made to those municipalities in which metalliferous minerals are extracted or were extracted within 3 years previous to December 31 of the current year, or in which a permit has been issued under s. 293.49 or 295.58 to commence mining;

2. Distribution shall next be made to those municipalities adjacent to municipalities in which metalliferous minerals are extracted or were extracted more than 3 years, but less than 7 years previous to December 31 of the current year;

3. Distribution shall next be made to those municipalities which are not adjacent to municipalities in which metalliferous minerals are extracted and in which metalliferous minerals are not extracted.

(hg) The board shall, by rule, establish fiscal guidelines and accounting procedures for the use of payments under pars. (d) , (f) , (fm) and (g) , sub. (3) and ss. 293.65 (5) and 295.61 (9) .

(hr) The board shall, by rule, establish procedures to recoup payments made, and to withhold payments to be made, under pars. (d) , (f) , (fm) and (g) , sub. (3) and ss. 293.65 (5) and 295.61 (9) for noncompliance with this section or rules adopted under this section.

(hw) A recipient of a discretionary payment under par. (f) or (g) , sub. (3) or ss. 293.65 (5) and 295.61 (9) or any payment under par. (d) that is restricted to mining-related purposes who uses the payment for attorney fees may do so only for the purposes under par. (g) 6. and for processing mining-related permits or other approvals required by the municipality. The board shall recoup or withhold payments that are used or proposed to be used by the recipient for attorney fees except as authorized under this paragraph. The board may not limit the hourly rate of attorney fees for which the recipient uses the payment to a level below the hourly rate that is commonly charged for similar services.

(i) The board may require financial audits of all recipients of payments made under pars. (d) to (g) . The board shall require that all funds received under pars. (d) to (g) be placed in a segregated account. The financial audit may be conducted as part of a municipality's or county's annual audit, if one is conducted. The cost of the audits shall be paid by the board from the appropriation under s. 20.566 (7) (g) .

(j) Prior to the beginning of a fiscal year, the board shall certify to the department of administration for payment from the investment and local impact fund any sum necessary for the department of natural resources to make payments under s. 289.68 (3) for the long-term care of mining waste sites, if moneys in the waste management fund are insufficient to make complete payments during that fiscal year, but this sum may not exceed the balance in the waste management fund at the beginning of that fiscal year or 50 percent of the balance in the investment and local impact fund at the beginning of that fiscal year, whichever amount is greater.

(k) Prior to the beginning of each fiscal year, the board shall certify to the department of administration for payment from the investment and local impact fund any sum necessary for the department of natural resources to make payments under s. 292.31 for the environmental repair of mining waste sites, if moneys in the environmental fund that are available for environmental repair are insufficient to make complete payments during that fiscal year. This sum may not exceed the balance in the environmental fund at the beginning of that fiscal year or 50 percent of the balance in the investment and local impact fund at the beginning of that fiscal year, whichever amount is greater.

(3)   Federal revenue distribution. The investment and local impact fund board shall distribute federal mining revenue received by the state from the sales, bonuses, royalties and rentals of federal public lands located within the state. The distribution of such federal revenues by the board shall give priority to those municipalities socially or economically impacted by mining on such federal lands and shall be used for planning, construction and maintenance of public facilities or provision of public services. The funds distributed under this subsection may be used only for mining-related purposes.

1977 c. 31 , 185 , 423 ; 1979 c. 34 s. 2102 (46) (c) ; 1979 c. 63 ; 1979 c. 175 s. 53 ; 1981 c. 86 ss. 27 to 36 , 71 ; 1981 c. 374 s. 150 ; 1983 a. 27 ss. 1184u to 1185r , 2202 (38) and (45); 1983 a. 410 ss. 22 , 2202 (38) ; 1985 a. 29 ss. 1214s to 1214z , 3200 (46) (a) ; 1985 a. 332 s. 253 ; 1987 a. 399 ; 1989 a. 31 ; 1991 a. 39 , 259 ; 1995 a. 27 , 227 ; 1997 a. 27 ; 1999 a. 32 ; 2013 a. 1 . Cross-reference: See also ch. Tax 13 , Wis. adm. code. The legislature has vested the board with the power to make discretionary distributions under sub. (2) (g). Kammes v. Wisconsin Mining Investment & Local Impact Fund Board, 115 Wis. 2d 144 , 340 N.W.2d 206 (Ct. App. 1983). Grants under this section would not violate the public purpose doctrine and the internal improvements clause of the Wisconsin Constitution. 70 Atty. Gen. 48.