AES - Flambeau Mine...21 AES is broad-based ecological consulting contracting and restoration firm...

Before The

State of Wisconsin

DIVISION OF HEARINGS AND APPEALS

In the Matter of the Application

of Flambeau Mining Company Case No IH-07-05

for Issuance of Certificate of

Completion of Reclamation

10 PRE-FILED TESTIMONY OF STEVEN APFELBAUM ON

11 BEHALF OF APPLICANT AND PERMIT HOLDER

12 FLAMBEAU MINING COMPANY FMC13 Background and Experience

14 Would you state your name please

15 Steven Apfelbaum

16 By whom are you employed and in what capacity

17 am employed by Applied Ecological Services Inc AES 17021 Smith Road

18 Post Office Box 256 Brodhead Wisconsin 53520 am principal ecologist and

19 President of that company

20 What is AES

21 AES is broad-based ecological consulting contracting and restoration firm

22 providing services to foundations governmental units corporations and

23 commercial/residential developers nationwide AES staff consists of multi-

24 disciplinary team of botanists wildlife biologists wetland scientists prairie and

25 ecosystem restoration specialists and scientists AES environmental expertise

26 includes wetland delineations environmental permitting impact assessment

27 wetland mitigation ecological restoration planning inventory of natural

28 resources prairie wetland and woodland restoration and management wildlife

29 fisheries and botanical studies long-term project management and monitoring

30 ecological and other scientific research and expert testimony

31 AES operates three divisions

32 Nationwide ecological consulting and restoration design services

33 Environmental contracting services for ecological restorations and

34 other projects

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Steven Apfelbaum Pre-Filed Testimony

Nursery seed and plant materials for restoration of native prairies

wetlands savannas woodlands lakeshores and stream corridors

Through these three divisions ABS provides services including ecological

design wetland delineation mitigation and permitting vegetation monitoring

wildlife and habitat studies GIS projects prairie wetland and forest restoration

storm water and erosion control planning seeding and planting area management

including herbicide application prescribed burnings exotic plant removal and the

furnishing of nursery and seed products and services

ABS field crews with over 25 years of experience in prairie and wetland

10 management are supported with native seed and plant materials by Taylor Creek

11 Restoration Nurseries the companys 300-acre prairie and wetland nursery which

12 produces over 650 species of native plants

13 Where does AES have offices

14 AES has its home office in Brodhead Wisconsin It also has offices in West

15 Dundee Illinois Budora Kansas Prior Lake Minnesota Jackson New Jersey

16 and Conshohocken Pennsylvania

17 What is your position with AES

18 am President and one of the Principal Bcologists with the company am also

19 the owner of ABS

20 What are your duties and responsibilities with AES

21 At ABS participate in managing the companys activities However majority

22 of my time is invested in personal involvement in numerous projects for which

23 ABS has been retained For example over the years have been personally

24 involved in matters relating to the reclamation of Flambeau Mining Companys

25 Ladysmith Mine the Ladysmith Mine or the mine to the extent of actually

26 leading and participating in activities including project design reclamation

27 implementation and on-site vegetation and wildlife monitoring

28 Approximately how many times have you been personally on the Ladysmith

29 Mine site

30 At least twice year since reclamation and monitoring began Approximately

31 once additionally per year during the reclamation period for an occasional on-site

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meeting and events such as open houses sponsored by FMC In addition was

personally on site regularly during the finalization of reclamation program design

over period of 1.5 years

When was your latest visit

August2006

Approximately how many times have AES personnel collectively been on-site

over the years

AES crews doing the restoration plantings and management and ABS scientists

doing the monitoring were on site collectively totaling about 600 to 700 person-

10 days

11 What is your education

12 hold Associate Degree in Science from William Rainey Harper College

13 received in 1974 Bachelor of Liberal Arts and Sciences in Botany Zoology

14 and Ecology University of Illinois in 1976 and Masters Degree in Ecological

15 and Biological Science in 1978 from the University of Illinois Urbana

16 What has been your work experience

17 have been involved in thousands of projects involving ecological design

18 restoration and reclamation implementation oversight and monitoring projects

19 regulatory matters negotiations permitting etc for range of private clients

20 developers industry non-profit foundations many conservation organizations

21 such as The Nature Conservancy and The Conservation Fund and many

22 governmental organizations

23 What other projects have you worked on over the years similar to the

24 reclaimed Flambeau Mine

25 Mine reclamation closure and monitoring projects have included Jackson

26 County Iron Mine Black River Falls Wisconsin Eagle Pitcher Mines

27 Shullsburg Wisconsin Crayhall Mine Shullsburg Wisconsin Bearhole Mine

28 Shullsburg Wisconsin and over 200 projects using the same or similar

29 restoration monitoring and documentation methods on restorations ranging from

30 the 7300 acre Kankakee Sands Project for The Nature Conservancy Enos

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Indiana to contributing to the design of restoration pians for the 1.5 million acres

Mesopotamian Wetlands Iraq

What professional affiliations do you have

am current member of the Ecological Society of America the Society of

Wetland Science the Red River of the North Technical Science and Advisory

Committee and numerous other organizations including The Nature

Conservancy the National Wildlife Federation the Sierra Club and Wisconsin

Prairie Enthusiasts

Do you hold any certifications

10 Yes am Certified Senior Ecologist certified by the Ecological Society of

11 America

12 Have you ever received any awards

13 Yes have received the Presidents award from the American Planning

14 Association the Homebuilder Honors Award and the Wisconsin American

15 Society of Landscape Architects Accomplishment Award Furthermore was

16 appointed to the Bio-Diversity Science Team for US National Forests appointed

17 member of the Prairie Crossing Distinguished Design Team and have held

18 honorary research appointments and adjunct professor positions and lectureships

19 at the University of Wisconsin Platteville Stevens Point the University of

20 Pennsylvania the University of Vermont and others

21 Purpose of Testimony

22 What is the purpose of your testimony

23 The purpose of my testimony is to describe the successftil revegetation and

24 reclamation program at the Flambeau Mine site in accordance with the standards

25 set forth in Flambeau Mining Companys Reclamation Plan to detail analytical

26 methods undertaken in the field to determine that such compliance has been met

27 to explain and outline the fine-tuning and clarifications made to measure

28 compliance with one or more of the standards to explain the maintenance

29 activities conducted on-site including herbicide treatment and prescribed

30 burnings to introduce detailed reports relating to revegetation of the site and the

31 use of the site by wildlife including birds and butterflies and to substantiate

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FMCs completion of and compliance with all reclamation vegetation standards

despite adverse conditions including severe drought

What is your testimony based upon

My testimony is based upon 11 years involvement with the site numerous and

extensive site visits measurements and observations personal participation in site

monitoring and surveys review of data collected by myself and members of AES

supervision of ABS personnel in regard to scientific activities on the site

supervision of and involvement in preparation of various reports and submissions

contact with the Wisconsin Department of Natural Resources DNR or the

10 Department my observations of the site as it has progressed and established

11 itself over the years my experience in similar projects and my knowledge and

12 expertise in the subject area

13 AES Services Related To The Flambeau Mine Site Ladysmith Wisconsin

14 Can you summarize or give an overview of what services AES performed for

15 Flambeau Mining Company FMC over the years

16 Yes ABS was retained in January 1997 to provide site final reclamation design

17 detail and to implement reclamation services and follow-up vegetation

18 monitoring and maintenance activities to carry out the portions of the

19 Reclamation Plan relating to revegetation of the site AES worked closely with

20 FMC and DNR in regard to reclamation implementation and vegetation

21 monitoring and maintenance on the site Activities that AES has performed since

22 it was retained include assistance in design of the grading plan stormwater

23 management system i.e biofilter swales and biofilter wetland and pond and

24 planting plans planting and seeding of the site i.e prairies wetlands and

25 woodlands vegetation monitoring wildlife monitoring and surveys analysis of

26 aerial photographs for correlation with revegetation status prescribed burns

27 herbicide and manual removal of exotic and noxious species quantitative analysis

28 of field data and preparation of extensive reports assessing the revegetation

29 success of the reclamation of the Flambeau Mine

30 Were other AES personnel involved in assisting in the performance of these

31 functions and duties

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Yes Numerous AES personnel i.e ecologists engineers landscape architects

and restoration specialists and construction/reclamation contracting specialists

assisted in these activities over the years under my overall supervision and

direction

Can you tell us what activities AES performed on-site in the last two years

2005 and 2006

Yes In 2005 and 2006 ABS performed vegetation and wildlife monitoring on

the site as follows Vegetative Diversity Vegetation Composition Woody

Species Survivorship Wetland Plant Stem Density Estimates Biomass Collection

10 Analysis Bird Survey and Butterfly Survey ABS also conducted the 2005 and

11 2006 prescribed bums the sixth and seventh bums respectively in series of

12 required 10 years of bums ABS also compiled and submitted an extensive report

13 entitled Analysis of Revegetation Success for Reclamation of the Flambeau

14 Mine in November 2005 and again in November 2006 as well as report

15 entitled Aerial Photography Correlation With Vegetation Monitoring Data on

16 Reclaimed Flambeau Mine Site in November 2005 and again in November

17 2006 as well as report entitled Birds of the Reclaimed Flambeau Mine and

18 report entitled Butterflies of the Reclaimed Flambeau Mine also completed in

19 November 2005 and November 2006 respectively Bach of these reports were

20 included in FMCs 2005 and 2006 Annual Reclamation Reports filed by FMC

21 with the DNR The Revegetation Success Analysis can be found as Attachment

22 to the 2005 Annual Reclamation report and as Attachment to the 2006 Annual

23 Reclamation Report the Aerial Photography Correlation Report can be found as

24 Attachment to the 2005 Annual Reclamation Report and as Attachment to the

25 2006 Annual Reclamation Report the Bird Survey Report can be found as

26 attachment to the 2005 Annual Reclamation Report and as Attachment to the

27 2006 Annual Reclamation Report and the Butterfly Survey Report can be found

28 as Attachment to the 2005 Annual Reclamation Report and as Attachment to

29 the 2006 Annual Reclamation Report

30 Does AES have any ongoing responsibilities on the site

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Yes It is expected that AES will continue to implement prescribed burning on

the site through the 10-year period of prescribed burning

The Mine Site Before During After

How would you characterize the mine site prior to mining and reclamation

The mine site primarily contained an abandoned old farmstead several farm

fields including fallow field on the north side of the project area woodland

patches and dispersed low quality wetlands found in previous agricultural lands

From the viewpoint of wildlife and plant habitat values it was at best average

and comparable to most other fallow farms in the neighborhood

Do you have photographs of the mine site after reclamation and

revegetation

Yes Photographs taken in 2005 and 2006 as described herein provide sample

view of the mine site after reclamation Such photographs include

Exhibit Description

80A Prairie vegetation across mine site

80B Prairie vegetation across mine site showing Yellow Coneflower

and Canada tick trefoil planted under the reclamation program

80C Prairie vegetation across mine site showing Sawtooth sunflower

and native grasslands planted under the reclamation program

80D Prairie vegetation across mine site showing Wild Bergamot

planted under the reclamation program

80E Prairie vegetation across mine site showing Canada tick trefoil

planted under the reclamation program

80F Prairie vegetation across mine site showing Big bluestem grass in

seed planted under the reclamation program

800 Prairie vegetation across mine site showing New England Aster in

full flower planted under the reclamation program

80H Prairie vegetation across mine site showing Stiff goldenrod in full

flower planted under the reclamation program

801 Black Eyed Susan in full flower planted under the reclamation

10

11

12

13

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80J Woodland species at the mine site inside the grazing exclosure

80K Woodland species at the mine site inside the grazing exciosure

looking through exciosure fence

80L Woodland species at the mine site within the grazing exciosure

80M Woodland species not within the grazing exciosure

80N Woodland with deer moving into the prairie planted areas on

mine site

800 Wetland vegetation in the 8.5-acre wetland

80P Wetland vegetation in the 8.5-acre wetland

80Q Fragrant white water lily in the 1.7-acre biofilter

80R Wild blue flag iris in the 8.5-acre wetland

80S Sneezeweed in the 8.5-acre wetland

80T Bur reed an emergent wetland plant and documented important

food source for waterfowl in the 1.7 acre biofilter

80U Prescribed burning to manage the upland grassland plantings

during spring 2005

80V Prescribed burning to manage the upland grassland plantings

during spring 2006

The Reclamation Plan

What is the source of the Reclamation Plan for the mine site

The Reclamation Plan is contained in Section 5.0 of FMCs Mining Permit

Application MPA marked as Exhibit 11 as approved by the

Mining Permit marked as Exhibit 12

What was the overall intent of the Reclamation Plan in terms of revegetation

of the mine site

The overall intent of the Reclamation Plan in terms of reclamation revegetation

was to establish three distinct and separate vegetative communities grasslands

prairie grasslands woodlands and wetlands with prairie grasslands making up

approximately 70% of the site In each zone the intent was to achieve levels of

program

10

11

12

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native plant diversity stabilize the land and create plantings that survived and

grew In sum the site was to be reclaimed to wildlife habitat and non-

consumptive passive recreational use through the establishment of the three

distinct and separate vegetative communities contemplated in the Reclamation

Plan

Modifications To The Reclamation Plan

Are you familiar with the January 1998 submission by FMC requesting

modification of the Reclamation Plan marked as Exhibit 36

Yes

10 Did AES do any work in regard to this requested modification

11 Yes AES drafted document entitled Supplement to the Surface Reclamation

12 Plan for the Flambeau Mine Flambeau Mining Company Ladysmith Wisconsin

13 December 19 1997 the 12/97 Supplement outlining in detail the requested

14 adjustments and modifications to the Reclamation Plan marked as

15 Exhibit 35 FMC submitted the 12/97 Supplement to DNR on December 18

16 1997 and requested approval of the same The 12/97 Supplement provided the

17 details and support for FMCs January 1998 modification letter to DNR

18 What did the 12/97 Supplement consist of

19 The 12/97 Supplement was detailed document outlining adjustments proposed

20 to the Reclamation Plan based on discussions held with the DNR since 1996 It

21 contained text tables figures and appendices including Surface Water Analysis

22 Appendix and revised Grading Plan Figure which established final

23 grades and wetland/biofilter locations for the site The 12/97 Supplement

24 proposed changes to final use of the site i.e creation of an Industrial Outlot

25 final grades wetland and biofilter creation site hydrology retention of certain

26 buildings and the visitors parking lot adjustments to the revegetation plan and

27 other miscellaneous adjustments These changes are outlined in detail in the text

28 of the Supplement as well as its tables figures and appendices

29 Did the 12/97 Supplement or the January 1998 FMC letter change the

30 overall original intent of the Reclamation Plan

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The adjustments requested in these submissions did not change the original

overall intent of the Reclamation Plan which was to provide an ecologically stable

site for non-consumptive passive recreational uses which would provide wildlife

habitat and that were comprised of the three primary plant communities

wetlands woodlands and grasslands and the approximate coverage of each

Did the DNR approve the modification

Yes On July 30 1998 specifically referencing both the 12/97 Supplement and

FMCs January 1998 letter modification request DNR issued formal Findings

of Fact Conclusions of Law and Mining Permit Modification approving

10 refinements modifications the Reclamation Plan marked as Exhibit

11 37J

12 Revegetation of the Mine Site

13 Please summarize the revegetation of the mine site

14 The revegetation phase of reclamation at the mine site was initiated in spring of

15 1998 with additional seeding and plant installation taking place during mid-

16 October 1998 Additional seeding and plant installation occurred in the spring of

17 1999 2000 and 2001 Revegetation of the site was completed pursuant to the

18 Reclamation Plan the 12/97 Supplement the Surface Reclamation

19 Implementation Plan SRIP dated March 1998 Exhibit 81 hereto and the

20 DNR July 30 1998 Reclamation Plan Modification Approval In sum the site

21 has been reclaimed to wildlife habitat and non-consumptive passive recreational

22 use through the establishment of the three distinct and separate vegetative

23 communities contemplated in the Reclamation Plan

24 When did the revegetation take place

25 Revegetation began in 1998 as areas of the reclaimed mine site were brought to

26 final grade If an area could not undergo final seeding within seasonally

27 acceptable time period AES installed cover crop and straw mulch over that part

28 of the site until final seeding could take place AES installed seed and live plants

29 of native species in spring of 1998 fall of 1998 and spring of 1999 Additional

30 plants were installed in 2000 and 2001 mostly in the wetland and woodlands

31 Three communities were established on the approximately 149-acre reclaimed

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site upland grasslands woodlands and wetlands including mitigation wetland

and biofilters total of 40 plant species were installed in the upland grassland

39 in the woodlands and 95 in the wetlands Most of these species are

herbaceous i.e grasses or forbs but plantings also included native trees and

shrubs in the woodlands and native shrubs in the wetlands Most trees were

obtained from local nursery while others were relocated from the on-site

nursery The reclaimed areas within the Industrial Outlot were revegetated during

the same time as the remainder of the site with upland grassland species except

for the biofilter pond which was vegetated with native wetland species seed and

10 rootstock and by using wetland substrates also called hydric soils

11 Please describe how the mine site was prepared for planting

12 After the mine pit was backfilled by others grades were created to provide the

13 appropriate topographic and hydrological settings designed for planting each

14 vegetation zone in the reclamation plan Topsoil placement followed using soils

15 that were removed from the mine site during the construction phase and

16 stockpiled during the operation phase Prior to planting soil sampling and macro-

17 nutrient analyses were conducted to determine fertilizer and soil amendment

18 needs Prior to placement of topsoil the subsoil was prepared by first deep-

19 ripping to depth of approximately three feet under ABS guidance by the

20 excavation company doing the backfilling The topsoil was placed by scraper to

21 minimum depth of four inches The topsoils were then prepared using

22 conventional disking practices The soils were then cultipacked to break up clods

23 and create firm seed bed Seeding with native species and cover crop species

24 was completed primarily with the use of Truax drill seeder designed for native

25 seeding or by hand broadcasting Straw mulching followed by chopping and

26 blowing oat straw across the seeded soils Native species were installed in 10

27 different zones included within communities according to the planting plans

28 Tree planting plans were prepared that identified the numbers species and

29 planting locations for both temporary nursery trees and nursery purchased stock

30 Trees and shrubs from the original site were placed in an on-site temporary

31 nursery that was maintained by FMC during the construction and operation phase

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Please expand on the activities AES undertook to establishing grasslands at

the mine site

Thirty-two herbaceous species were installed in the grasslands 17 as seed as

live plants and 11 as seed and plants using no-till drilling techniques to ensure

good soil-seed contact and subsequent germination Straw mulch was spread and

crimped over the seeded areas to retain moisture and facilitate germination

During the first growing season the planted areas were mowed at least once to

reduce the stature and potential competition between the planted cover crop plants

e.g winter rye and the developing prairie seedlings Live plants were installed

10 using spade and dibble bars to create hole followed by their installation and

11 healing by firming the soil around the plants

12 What activities did AES undertake as to planting of trees at the site

13 AES oversaw the transplanting for tree species that grew on the site from the on-

14 site temporary nursery into the appropriate zone AES also planted thousands of

15 tree seedlings from purchased nursery stock following planting plans that were

16 prepared for each planting zone Immediately after planting the trees AES

17 installed protection to reduce and prevent herbivory by deer using translucent

18 plastic tree tubes over each purchased plant AES crews both planted and

19 oversaw the planting and protection of the planted tree and shrub stock An

20 adjacent nursery Colonial Nursery also provided labor to assist and was involved

21 in maintenance of the stock FMC provided irrigation piping and was responsible

22 for watering the planted stock

23 Do you have photographs showing tree and grassland planting activities

24 onsite

25 Yes Examples of activities were recorded in photographs in the 1998 and 1999

26 Annual Reclamation Reports Several of these photographs from these reports

27 with accompanying explanatory text are included here as Exhibit 82A through

28 82J 1998 Annual Reclamation Report Photos 44 through 49 54 through 56 67

29 and 68 1999 Annual Reclamation Report Photos 10 27 and 28

30 What activities did AES undertake in relation to creation of wetlands and

31 biofilters at the site

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ABS was intimately involved in the creation of wetlands and biofilters at the site

and their revegetation maintenance and monitoring ABS refined the final design

of the wetland restorations oversaw excavation and topsoiling with hydric soils

and conducted seeding and planting on the site ABS also conducted invasive

species maintenance in these locations and monitoring activities

What wetlands and biofilters were created

Pursuant to DNRs July 30 1998 approval combined 8.5-acre mitigation

wetland was created in the northeast corner of the site instead of 7.5-acre

wetland located on the west end of the reclaimed pit and previously approved

10 1.0-acre wetland adjacent to northeast corner of the former Type stockpile area

11 First the previously approved 1.0-acre wetland was constructed totaling 1.1-

12 acres out of the existing 1.0-acre test wetland plot subsoils and hydric soils It

13 was located within 100 feet of the former wetland test plot footprint As this

14 wetland had been previously approved it was completed on June 10 1998 On

15 June 9-10 1998 more than 1400 individual aquatic/emergent plant rootstock

16 materials were installed by hand in the 1.1-acre wetland

17 After the DNR issued its July 30 1998 approval for the modification of

18 the Reclamation Plan the rest of the 8.5-acre wetland complex was constructed

19 In August 1998 hydric soils from the hydric soil stockpile were removed for

20 construction of the 8.5-acre wetland and its construction was completed During

21 spring of 1999 72 herbaceous species were installed 38 by seed and 34 by seed

22 and live plants in the 8.5-acre wetland complex Ten shrub species were

23 installed three as seed four as live plants and three as seed and live plants

24 Additionally again in accordance with the July 30 1998 DNR approval of

25 the modification of the Reclamation Plan two wetland-type biofilters were

26 constructed 1.7-acre wetland-type biofilter in the west central portion of the

27 mine site in the area of the hydric soils stockpile and 0.9-acre wetland-type

28 biofilter in the Industrial Outlot portion of the mine site Tributary swales to the

29 1.7-acre and 0.9-acre biofilters were also planted to stabilize and perform water

30 quality enhancing biofiltering functions 58 herbaceous species were installed in

31 the biofilter ponds and swales 33 as seed and 25 as seed or live plants Bight

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shrub species were installed as live plants and as seed and live plants

Further as part of the site grading revisions there were biofilters created in the

northwest portion of the site in drainageway areas near existing Wetland and

the pre-existing quarry site south of the Blackberry Lane the northwest

biofilters These biofilters received 340 individual aquatic/emergent wetland

plant rootstock installed by hand

How does the reclaimed site compare to the original site

The goals of the reclamation were to restore the site into landscape comprised of

plantings zones and species mixes intended to produce high-quality wildlife

10 habitat which could also be used by the public for passive non-consumptive

11 recreational use These goals have been more than met The site has more

12 ecosystem diversity than the pre-mining fallow agricultural land condition is

13 home to numerous species of wildlife and hundreds of native species of plants is

14 ecologically functional and hydrologically stable and forms what the community

15 has come to appreciate and regularly use for passive recreation In sum the

16 reclaimed site has achieved the values that were envisioned in the Reclamation

17 Plan

18 Site Management/Studies

19 What site management activities has AES undertaken on the site

20 Since 1998 ABS has conducted management activities on the site including site

21 mowing spot mowing hand-cuffing and pulling of herbaceous invasive or non-

22 native species herbiciding invasive or non-native species and conducting

23 prescribed bums over one-third of the site per year since year 2000

24 What activities has AES conducted on the site in terms of vegetation

25 monitoring

26 Pursuant to the Reclamation Plan AES has conducted vegetation monitoring of

27 the reclaimed mine site In 1998 ABS conducted survey which gathered

28 baseline data on the grassland wetland and woodland plantings and on the

29 industrial outlot conditions Vegetation was then sampled again in spring and late

30 summer every year since 1999 The last sampling was taken August 14-17 2006

31 During each late summer survey vegetation was sampled at the same baseline

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collection locations and several additional areas to determine the trend in

vegetation performance In addition biomass samples were collected during

summer 2001 2005 and 2006

detailed description of AES vegetation monitoring activities and results

is contained in an annual AES revegetation success analysis report which has

been included in FMCs Annual Reclamation Reports since monitoring was

initiated

What surveys has AES done of animal life

Aside from casual observations of animal life at the site AES personnel have

10 conducted annual formal breeding bird and butterfly surveys at the site Reports

11 of these surveys are also included in FMCs Annual Reclamation Reports since

12 study initiation

13 Has AES conducted any other studies at the site

14 Yes AES conducted Habitat Evaluation Procedure HEP as well as an

15 analysis of aerial photography to evaluate vegetation cover and representative

16 communities on the site

17 What is the purpose of the HEP

18 The purpose of the HEP was to project the potential benefit to wildlife of the

19 restored habitats using three selected bird species It is another tool to help gauge

20 vegetative reclamation at the site The HEP method is standard often used by

21 federal agencies USCOE USFWS to determine potential habitat and wildlife

22 benefits with restoration and habitat modification programs

23 Vegetation Standards Background and Description

24 Were there required vegetation reclamation standards for the site

25 Yes

26 Where are the reclamation vegetation standards set forth

27 The vegetation reclamation standards are contained in the Reclamation Plan

28 Section 5.0 of the December 1989 MPA Revised which was subsequently

29 approved by the Mining Permit issued on January 14 1991 by the Administrative

30 Law Judge The vegetative monitoring and vegetative reclamation standards are

31 contained in subsection 5.11.4.8 of the MPA

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What vegetation reclamation categories and standards does subsection

5.11.4.8 of the MPA contain

Subsection 5.4.11.8 of the approved MPA contains the following standards

Percent cover

Biomass

Diversity percentage and minimum species

Survivorship of woody plant stock

Wetland vegetation density and minimum species present

Completion of habitat evaluation analysis the HEP10 What standard applies to percent cover as outlined in the MPA11 Percent cover of vegetation must constitute no less than 70% cover averaged over

12 the site at 90% statistical confidence for final reclamation at the Notice of

13 Completion of Reclamation NOC and for Certificate of Completion of

14 Reclamation COC15 What standard was set for biomass as outlined in the MPA

16 Total above-ground herbaceous biomass is to be determined once for the NOC

17 and once at COC Average biomass at COC must be at least 80% of the biomass

18 at NOC at 90% statistical confidence

19 What is the standard for diversity in the MPA

20 The MPA requires that the frequency of occurrence by species be reflective of its

21 relative ratio in the seed mix or planting schedule The similarity of the standing

22 crop should be no less than 80 percent of the original mixture at 90 percent

23 statistical confidence This standard was later clarified in series of submissions

24 to and approvals by DNR as indicated below As result FMC is required to

25 show that 80% of target planting species exist in each of the three ecological

26 communities at the site

27 The diversity standard also contains standard for planted native species

28 which requires minimum of 15 planted native species be found in the grassland

29 and woodland community types and 12 in the new 8.5-acre wetland

30 What was the standard for survivorship of woody plant stock as outlined in

31 the MPA

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The standard is that representative population sample of woody species trees

must occur at the time of NOC and COC and that no less than 80% of the initially

planted species must survive in similar proportion to the initial planting and

show signs of vigor and health

What was the standard for wetland vegetation as outlined in the MPA

Wetland measurements are to consist of frequency of occurrence and stem

density and the similarity of standing crop to be no less than 80% of the initial

planting at 90% statistical confidence with minimum of 12 planted species

What was the standard for evaluating wildlife habitat as outlined in the

10 MPA11 Subsection 5.11.4.8 of the MPA requires that the HEP be commenced within two

12 years after vegetation commences and then once per year for three years after

13 What is HEP

14 HEP is an evaluation of habitat using U.S Fish and Wildlife Service Habitat

15 Suitability Index model The HEP focused in on three distinct bird species

16 Savanna Sparrow the Great Crested Flycatcher and the Tree Swallow as well as

17 vegetation monitoring data The HEP helps assess the suitability of the habitats

18 created in the reclaimed mine site The bird species were chosen because they

19 would be potential beneficiaries of the three principal habitats created on the

20 reclaimed mine site namely native prairie grasslands woodlands and wetlands

21 Non-game bird species were chosen because the reclaimed mine site is to be used

22 for passive recreational opportunities such as hiking snowshoeing and nature

23 interpretation and not hunting

24 Were any of these standards or requirements later clarified and made more

25 specific and detailed

26 Yes One of the important clarifications was the Surface Reclamation Ecological

27 Monitoring Program Flambeau Mine Hunt Apfelbaum 1998 hereafter the

28 SREMP It was submitted to the DNR for approval in December of 1998

29 What was the SREMP

30 The SREMP was detailed proposal to implement the procedures and success

31 criteria specified in the Reclamation Plan as approved by the Mining Permit

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Have you included the S14EMP as an exhibit

The SREMP is included as Exhibit 83

Can you give us some examples of what the SREMP contains

The SREMP contains clarifications of the vegetation reclamation standards

clarification of certain definitions relating to management maintenance and long-

term care of the vegetation as well as adding details as to monitoring and

measurement methods and techniques The SREMP also addressed the

implementation of the HEP and bird and butterfly surveys that FMC would be

conducting through AbS The SREMP also discusses schedules data analysis

10 and reporting requirements

11 Did DNR approve the S14EMP

12 Yes DNR gave its specific approval of the SREMP and its contents on February

13 23 1999 SeeExhibit84

14 Were there any discussions about the need to clarify the vegetation

15 reclamation standards in the MPA contained in Subsection 5.11.4.8 beyond

16 the S1IEMP

17 Yes There was discussion with the DNR as to what species were to be measured

18 in relation to the diversity and woody species standards This led to the

19 finalization of Final Species List FSL later called the Target Planting

20 Species List or TSPL for measurement of diversity and clarification of the

21 woody species survival standard Finalization of the same were documented in

22 several letters and memos which reflected and documented the discussions

23 between AES and DNR including May 26 2000 DNR letter regarding the FSL

24 attached as Exhibit 85 an AES January 18 2001 memo to the DNR regarding

25 measurement of the woody species survival standard Exhibit 86 DNRs

26 designation of the proper measurement protocol for determining compliance with

27 the standard see Exhibit 87 an e-mail dated January 25 2001 February

28 2001 AES follow-up e-mail requesting DNR to confirm the measurement protocol

29 also part of Exhibit 87 and February 2001 DNR communication

30 specifically confirming the Target Species Planting List and the AES woody

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species measurement protocol Exhibit 88 In this letter DNR also approved

proposed biomass sampling procedures

What was measurement protocol in the AES January 18 2001

submission relating to the woody species survival standard that DNR

approved

The MPA standard stated At the NOC and again at the COC no less than 80%

of the initially planted species must survive in similar proportion to the initial

planting and that there be evidence of vigor and health The submission

clarified that the standard was that 80% of the planted woody species must be

10 alive and healthy at NOC and COC and that the surviving species must be in

11 similar proportions to the initial planting i.e that 80% of the initially planted

12 species not individual plants within each species must be present Thus the

13 standards are to be measured on species level This is the literal interpretation

14 and intent of the MPA standard and carries out the purpose of the same

15 Additionally as to similar proportion it was assumed that proportions at NOC

16 and COC were going to be different from initial proportions and therefore this

17 portion of the standard was intended to be flexible

18 How did DNR respond in its January 25 2001 response

19 DNR responded that the proposed measurement protocol made common sense

20 and provided flexibility to allow for site specific variables yet assurance that the

21 basic purpose and outcome of the reclamation plan would be honored

22 What did DNR say in its February 82001 letter in regard to the woody plant

23 survivorship standard as to AES February 2001 request to confirm the

24 same

25 DNR again specifically indicated its concurrence with AES proposed

26 measurement protocol

27 What did the DNRs February 2001 letter indicate as to the Final Species

28 List

29 The letter approved the Final Species List and indicated that better term to use

30 would be Target Species Planting List

31 You mentioned biomass sampling procedures What is biomass sampling

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Biomass sampling determines the total weight of live and dead plant stem mailer

found in sample areas that were randomly selected for sampling of vegetation

here in the grassland community at the site It is intended to be measure of the

success of revegetation of that community On January 31 2001 as part of its

submission of Anticipated 2001 Reclamation Activities FMC submitted

proposed Biomass Sampling Protocol BSP copy of the same is included as

Exhibit 89 The DNR February 2001 letter responded to that proposal with

certain questions

Did AES follow-up and respond to those questions

Yes On February 15 2001 AES addressed the questions raised by DNR in its

February 2001 letter Exhibit 90

Did DNR then approve the Biomass Sampling Protocol

Yes In letter dated April 19 2001 DNR requested that the contents of the

January 15 2001 AES e-mail be formally put in writing as an addendum to the

2001 Anticipated Reclamation Activities report and also as part of the 2001

Annual Reclamation Report Exhibit 91

Did FMC formalize the same as requested

Yes FMC submitted such addendum on May 22 2001 This document is also

contained in the 2001 Annual Reclamation Report as an attachment Therefore

DNRs requirements that the BSP be formally written up both as an addendum to

the Anticipated 2001 Reclamation Activities Report and in the 2001 Annual

Reclamation Report were met See Exhibit 92 the FMC May 22 2001

submission

Summary of Vegetation Standards

Is there summary of required vegetation reclamation standards applicable

to the site

summary of the vegetation requirements and the HEP procedure requirement is

contained in Table of FMCs September 2001 Notice of Completion

NOC marked as Exhibit 59

Monitoring Methods

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

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What methods were selected to monitor whether or not the vegetative

reclamation performance standards were met

Various quantitative methods were selected including nested one-square meter

sample quadrats along linear transects comparison of permanent transects with

annually randomized transects timed meander search TMS nested belt

transects to measure cover intercept and diameter at breast height DBH and

stem density of woody species i.e trees and shrubs biomass sampling

procedures including the biomass sampling protocol BSP Aerial color and

infrared photography were analyzed and correlated with vegetation monitoring

10 data In addition bird and butterfly surveys were conducted

11 Where can listing and explanation of these methods be found

12 In Sections and of the SREMP

13 What about methods for the HEP

14 These methods can be found in Section of the SREMP

15 What about methods for the bird and butterfly studies

16 These can be found in Section 5.1 and 5.2 of the SREMP respectively

17 Please list the sampling method or methods which were used to measure

18 compliance with each reclamation revegetation standard

19 They are as follows

20

Revegetation

Standard

Sampling Method

Percent cover Line transect nested one-square meter

quadrats

Compare permanent and annual

random transects

Biomass Randomly selected points from grid

per sampling protocol one-square

meter quadrats

Biomass using sampling protocol

Diversity Line transect nested one-square meter

quadrats


random transects

Timed Meander Search TMS

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Nested belt transects cover intercept

and Diameter Breast Height DBHSurvivorship of woody

plant stock

Nested belt transects cover intercept

and DBHCount of all woody plant stock in

woodlands

Wetland vegetation Line transect nested one-square meter

quadrats

TMSWildlife habitat Line transect nested one-square meter

quadrats


random transects

TMSNested belt transects cover intercept

and DBH

Is there summary of the sampling methods cross-referenced to the

reclamation revegetation standards and the HEP outlined in the SREMP

Yes summary of the sampling methods performance standards and sampling

efficiency determinations cross-referenced to the reclamation revegetation

standards and the HEP is contained in Table of the SREMP

Description of Methods

You mentioned quadrat sampling as method to measure compliance What

is quadrat

10 quadrat is sample unit area or plot that can vary in size shape number and

11 arrangement depending on the nature of the vegetation site conditions and the

12 purpose of the study The usual method of quadrat sampling is to measure

13 quadrats of given area e.g one meter or meter square on the surface of the

14 ground at specified intervals along defined transect In the case of AES

15 sampling at FMCs mine site circular hoop one meter square in area was used

16 to sample vegetation at 5-meter increment along 30 permanent 50-meter length

17 transects These circular hoops represent the quadrat sample In addition three

18 temporary randomized transects were installed in the upland grassland Transect

19 locations were determined using randomly chosen numbers to generate end-point

20 and compass bearings for each transect and the transects were partitioned to

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ensure adequate representation of key planting zones The transects were located

in the field and each end-point was staked with steel rebar and surveyed using

OPS In addition the starting point of each transect was marked with metal

post fence post Over several years 1999 2005 2006 temporary transects

were established to verify the statistical reliability of the monitored permanent

transects

What is the purpose of quadrat sampling

Quadrat sampling is scientifically accepted quantitative method for defining

plant species cover frequency and plant community composition and other

10 variables using the defined quadrat areas to represent plant community

11 characteristics in larger area

12 What is transect

13 transect is line along measuring tape or narrow belt traversed on foot

14 following transect line used in ecological surveys to provide means of

15 measuring and representing graphically the distribution of organisms across

16 given area

17 Is there map of the permanent and temporary transects for the 2005 and

18 2006 monitoring

19 Yes map showing the location of permanent and temporary random

20 vegetative monitoring transects is included as Figure to the Analysis of

21 Revegetation for Success for Reclamation of the Flambeau Mine report

22 hereinafter the Revegetation Success Report contained as Attachment in

23 FMCs 2005 Annual Reclamation Report and as Attachment in FMCs 2006

24 Annual Reclamation Report copy of these figures are also provided as Exhibit

25 93A and 93B respectively

26 Where are the transects located

27 The transects are located in all three of the vegetation communities on the site and

28 in the Industrial Outlot

29 Do you have any photographs of transects onsite

30 Yes Exhibit 94A Figure 17 AU 2005 Annual Reclamation Report is

31 photograph of an upland grassland transect Exhibit 94B Figure 25 AU 2006

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Annual Reclamation Report shows wetland transect Exhibit 94C Figure

Alt 2006 Annual Reclamation Report shows woodland transact

How was the transect sampling accomplished

As previously indicated circular hoop one meter square in area was used as

quadrat to sample vegetation at the five-meter increments along the transects

Percent cover was recorded for each species in each quadrat The percentage of

bare ground fine litter coarse litter rock and bryophyte botanical division

including true mosses and liverworts were also recorded Average absolute

cover was determined by taking total cover within transect divided by the

10 number of quadrats within the transect and absolute frequency number of

11 quadrat occurrences of particular plant species within transect were calculated

12 for each species in each transect as well as soil lifter etc and were used to

13 calculate relative cover which is absolute cover divided by total actual cover for

14 all species in the transect times 100 and relative frequency which is absolute

15 frequency divided by the total frequency for all species in the transect times 100

16 were also calculated Data from each transect was used to calculate percent cover

17 for species and group of species i.e natives in each plant community and the

18 overall site In years 2005 and 2006 290 quadrats were sampled in the 29

19 permanent transects one Industrial Outlot transect was not sampled because of

20 construction of the equestrian facilities An additional 30 temporary random

21 quadrats in three transects were also sampled in 2005 and 2006

22 Do you have any photographs of quadrat sampling along the transects

23 onsite

24 Yes Exhibit 95A shows quadrat sampling along study transect in upland

25 grassland community in 2005 Exhibit 95B shows quadrat sampling in 2005 with

26 two quadrats being measured in the same community

27 What is Timed Meander Search TMS28 Timed Meander Search is sampling by meandering in the habitat areas beyond the

29 specific area sampled along transect The meandering may double-back over

30 previous covered ground follow zigzag pattern or take any other form so long

31 as there is maximum coverage of the vegetation variation within the study area

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New plant species are recorded over time as encountered Typically the search

procedure is employed until definite leveling off of the number of new species

encountered over time is obtained

What is the purpose of TMSTMS is scientifically accepted method for locating more plant species than the

more frequent and wide-spread species typically sampled using standard area-

dependant quadrats sampling Use of TMS provides broader area

representation of the plant community composition including finding infrequent

plant species in the location searched

10 How were Timed Meander Searches conducted on the site

11 TMS were conducted in the vicinity of every transect in 2005 and 2006 as they

12 had been each year from 1998 to 2004 Each species was recorded as it was

13 encountered for the first time During the survey each passing minute was

14 recorded thus the number of new species discovered per minute was documented

15 and with it the order in which the species were found When no new species

16 were found for specified period of search-time the search ended TMS was

17 conducted in 2005 and 2006 in the same locations as they were conducted in years

18 2000 through 2004 Fewer TMSs were conducted in 2000-2006 than in 1998

19 1999 because in some locations adjacent transects in the same community were

20 combined into single TMS TMS data was combined with quadrat data and when

21 available woody species data to create total species lists for each plant

22 community and the entire site

23 Do you have any photographs showing TMS activities onsite

24 Yes Exhibit 96A shows me conducting TMS in the 8.5-acre wetland with Tom

25 Portle of the DNR observing Exhibit 96B shows an AES employee doing TMS

26 in woodland planting area

27 Please describe the method for woody species sampling

28 Woody species sampling consisted of canopy intercept sapling and tree stem

29 counts including tubed seedlings along four-meter wide belt transects two

30 meters each side of the transect line as well as an entire planted tree and shrub

31 population counts in all woodland planting zones Woody vegetation was

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sampled along the identical 50-meter study transects laid out for quadrat sampling

each year Two parallel two-meters wide belts were laid out along each transect

one on each side of the transect Woody plants equal to or greater than 0.5-meters

in height and all tubed seedlings regardless of their height within each 4-meter

wide times 50-meter long transect were measured for the following

Percent canopy intercept

Survivorship whether dead or alive

Diameter at breast height DBH measured at 4.5 feet above the ground

when appropriate

10 Number of stems for each woody plant species

11 complete count of all planted trees and shrubs again recorded as alive or dead

12 was also conducted in the period of August 17-29 2005 and August 15 16 2006

13 in each woodland in order to obtain more accurate woody species survivorship

14 data

15 What is canopy intercept

16 Canopy intercept is the vertical projection of photosynthetic leaf area over

17 measured lineal distance-transect tape in laymans terms it is the land covered by

18 each species measured along tape measure

19 How did you do sapling and tree counts

20 All individual woody plants along each belted transect were counted species

21 recorded dead or alive status noted and DBH taken if growth is at least one

22 meter high

23 How did you conduct the planted tree and shrub population counts

24 Using the original tree planting plan that showed the as-built location of each

2S planted tree replanted trees from the temporary nursery and planted seedlings

26 AES went to each location and confirmed the exact location on the map the

27 species of tree and tallied whether it was alive or dead This method was used

28 the first few years when all individual planting areas were easily found and

29 identified In the following years when individual plantings were observed due to

30 fading of labels and mortality general survey of the entire woodland zone was

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conducted ABS also noted volunteer shrubs and trees by tallying them by species

within each woodland

How was biomass sampling conducted

Plant biomass was sampled in the upland grassland at 50 randomly selected

coordinates from total of 100 coordinates randomly selected from an

alphanumeric grid established on site survey map in 2001 Fifty of these points

were identified within the areas subject to prescribed burning and 50 from areas

excluded from prescribed burning in each year of biomass sampling Sample

points were located in the field using GPS Biomass samples were taken from an

10 equal number of sample locations in both the burned and unburned areas until

11 sampling was detennined to be sufficient in each area Biomass samples were

12 collected in 2005 and 2006 from the same 50-sample sites that were used in 2001

13 However actual sampling locations were offset two meters from the OPS

14 locations each year in 2001 in 2005 in 2006 to avoid collecting biomass

15 from the exact same locations

16 All vegetation within circular one-meter square area was selected at each

17 sample point and was cut within one inch of the ground using hand grass clippers

18 All cuttings were sorted and bagged according to the native/non-native status of

19 the species Loose duff material partially and fully decomposed organic plant

20 tissue materials lying below fallen organic material and immediately above

21 mineral soils was also collected and bagged The duff material that could not be

22 determined to be native plant material was included with the non-native samples

23 All samples were weighed onsite to determine sampling sufficiency Running

24 means were used to determine sampling sufficiency which was achieved prior to

25 the 25th sample in each area Samples were then driven to the ABS office the

26 same day the last sample was collected and air-dried in plant driers for week

27 Dry weight of the native and non-native collections from each sample point was

28 measured and running means were re-calculated using these final weights

29 Additional details of the biomass sampling methodology are in the BSP

30 Do you have photograph of biomass sampling onsite

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Yes Exhibit 97 shows ABS personnel beginning biomass sampling in upland

grassland in 2006

Resu its of Vegetative Sampling

What were the results of the sampling for percent cover

The 70% cover standard has been more than met The entire reclaimed mine site

averaged 94% plant cover 2005 and 98% plant cover 2006 based on all

permanent transects Excluding wetlands and the Industrial Outlot the reclaimed

mine site averaged 97% 2005 and 99% 2006 cover As of 2006 the total plant

cover is within 1% of its level in 2001 for the entire reclaimed mine Bach plant

10 community as well as each transect had much greater than 70% total cover

11 Therefore the percent cover performance standard was achieved in 2005 and

12 2006 as before

13 The mean total plant percent cover for the woodland plant communities in

14 2005 and 2006 was close to 100% Total native plant cover is lower in 2006 than

15 in 2005 due to decline in native forb cover consistent with severe drought

16 effects experienced in the region While native forb native grass and total native

17 cover are lower than in 2001 these declines are consistent with the performance

18 of other vegetation in the area during the two straight years 2005 2006 of

19 extremely dry conditions in the region

20 Mean total plant percent cover for the upland grassland plant community

21 permanent transects was about 98% 2005 and 99% 2006 Again although

22 there has been decrease in native forb native grass and total native cover since

23 2001 these declines are consistent with the reduced drought period performance

24 of local agricultural crops e.g alfalfa grass and clover hay crops corn etc

25 likely due to the previously cited extreme dry conditions in the region

26 The mean total plant percent cover for the wetlands community including

27 biofilters and swales was 83% 2005 and 98% in 2006 While native cover

28 again slightly decreased since 2001 this decline believed also to be consistent

29 with regional severe drought effects in the woodland and upland grass

30 communities

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The mean total plant percent cover for mixed or cross-boundary plant

communities was about 94% 2005 and 97% 2006 The same decrease in total

native cover as indicated in other communities was also noted from 2001 and

again it is most likely due to the two straight years of extremely dry conditions in

the region

What do the results show in regard to the diversity standard

Since greater than 15 target species were found in the woodland and upland grass

communities and greater than 12 target species were found in the wetland

community the standard was met each year in each community Since also

10 greater than 80% of the target species was observed in each community the

11 diversity percentage performance standard was also achieved

12 As previously explained only species on the Target Species Planting List

13 are considered when calculating site performance against the diversity standard

14 Species included in the Target Species Planting List are all those installed in the

15 reclaimed mine site at or above minimum planting rate and if planted with seed

16 the seed needs to be from source that is reliable in tests for viability Each

17 species needs only to be found once in each community to be considered present

18 and established in the plantings Species installed below the minimum planting

19 rate or locally collected only are included as enhancement species to provide an

20 increase in species richness Twenty-five target species were planted in the

21 woodlands 39 in the wetlands and 17 in the upland grassland

22 total species list was compiled from quadrat sampling TMS and woody

23 species sampling belted transects and tree population count The total species

24 list shows compliance with both the minimum number of species and percentage

25 requirements of the diversity standard for Target Species Planting List

26 As to the diversity standard requirement for minimum planted Target

27 Species Planting List native species found the vegetative monitoring showed 15

28 and 16 target planted species in the grassland community for 2005 and 2006

29 respectively 24 and 23 of the Target Species Planting List in the woodland

30 planted species community for 2005 and 2006 respectively and 37 and 32 of the

31 Target Species Planting List in the wetland planted species for 2005 and 2006

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respectively thus meeting or exceeding the requirement of 15 for the grassland

and woodland communities and 12 for the wetland communities Additionally

there were and enhancement planted species found in the grassland

community and enhancement planted species in the woodland community

and 40 and 41 enhancement planted species found in the wetland community

respectively for 2005 and 2006

Further 95% of target woodland species were found in 2005 92% percent

of target woodland species were found in 2006 96% of target wetland species

were found in 2005 82% of the target wetland species were found in 2006 88%

10 of the target upland grassland species were found in 2005 and 94% of thetarget

11 upland grassland species were found in 2006 in that community Overall 72 of

12 76 95% and 68 of 76 89% target species planted on the entire mine site were

13 found in 2005 and 2006 respectively

14 What was the total number of species found onsite

15 There were 369 total species found in 2005 347 total species found onsite in

16 2006 Of the 369 species found in 2005 approximately 76% were native species

17 of the 347 species found in 2006 approximately 79% were native species

18 What did the monitoring show as to the woody species survival standard

19 The standard requires 80% of initial planted species survive in proportion to

20 initial planting and show signs of vigor and health Woody species survivorship

21 data was collected during total count of planted woody species individuals

22 within each woodland zone The total population count was used to calculate

23 woody species survivorship and provide an independent measure of the belted

24 transects survivorship estimates The 2005 and 2006 results showed that all

25 planted woody species were found alive in the woodland community and species

26 proportions were similar to initial planting The monitoring thus showed that the

27 woody plant survivorship performance standard was met

28 What about the wetland biofilter vegetation standard

29 The standard requires minimum of 12 planted species as indicated above the

30 standard was met The standard also requires as to density and species similarity

31 that there be 80% of the initial planting

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Stem counts were to be provided in the 8.5-acre wetland restoration zone

however during the 1999 field study it became apparent that fulfilling the

original intent of this requirement was not practical Each planted and seeded

individual plant had multiplied and for many species were now represented by

many hundreds to thousands of stems For all species the original planted stems

were no longer identifiable This impracticality continued through the 2006

sampling season Thus method was approved and used in each subsequent

year including 2005 and 2006 to estimate stem density Stem counts were

correlated with percent cover in several quadrats For key species the number of

10 stems in one-quarter of one-meter quadrat was enumerated in representative

11 number of quadrats in the zone

12 Substantially more stems of the planted species were present in 1999

13 through 2006 in the wetland than were originally seeded and plugged in 1998

14 The abundance of these species has increased since 1999 therefore the density of

15 these species has also increased since 1999 The abundance of vegetation

16 decreased in 2006 but still was significantly higher than what was planted The

17 decrease was due to extremely dry conditions In any case the standard has been

18 more than met

19 What about the biomass sampling results

20 Biomass sampling was undertaken to determine whether the biomass standard of

21 at least 80% of biomass at NOC was also present at COC Biomass sampling was

22 completed in 2001 NOC and again in 2005 COCas well as again in 2006 and

23 shows the standard was met

24 The biomass sampling results for 2005 for total weight and mean native

25 weight of the burned area samples were 630 grams and 253 grams respectively

26 The mean total weight and mean native weight of the unburned samples was 707

27 grams and 267 grams respectively The mean total weight and mean native

28 weight of all samples was 668 grams and 264 grams respectively The mean total

29 weight and mean native weight of the burned area samples were 155 grams and

30 81 grams greater than in 2001 respectively The mean total weight and the mean

31 native weight of the unburned area samples were 166 grams and 96 grams greater

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than 2001 respectively The mean total weight and the mean native weight of all

samples were 160 grams and 92 grams greater than 2001 respectively

The biomass sampling results for 2006 for total weight and mean native

weight of the burned area samples was 559 grams and 346 grams respectively

The mean total weight and mean native weight of the unburned area samples was

658 grams and 436 grams respectively The mean total weight and mean native

weight of all samples was 609 grams and 391 grams respectively The mean total

weight and mean native weight of the burned area samples were 84 grams and

174 grams greater than in 2001 respectively The mean total weight and the

10 mean native weight of the unburned area samples were 117 grams and 265 grams

11 greater than 2001 respectively The mean total weight and the mean native

12 weight of all samples were 101 grams and 219 grams greater than 2001

13 respectively

14 The biomass both native and total is greater in all areas of upland

15 grassland both in 2005 and in 2006 than in 2001 the year of the NOC Thus the

16 performance standard of having no less than 80% of the biomass at NOC present

17 at COC has been met

18 Summary Reclamation Vegetation Standards Met

19 In sum what do the monitoring results you have described show as to

20 whether the required reclamation vegetation standards have been met

21 Vegetation monitoring establishes that all required vegetative reclamation

22 standards have been met or exceeded

23 Status of Plant Communities on Site

24 What is the overall status of the plant communities on the reclaimed mine

25 site

26 The 2005 and 2006 vegetation data clearly suggests that the plant communities

27 anticipated in the reclamation plan are well established and continuing to develop

28 All plant communities were well established in 1999 after the first growing season

29 and have developed ifirther since 1999 The abundance of planted native species

30 has increased over the seven years since that first growing season Native species

31 have increased substantially in all plant communities since installation and are

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well established and widespread on the site Further each plant communitys

intended structural characteristics are present in the upland grassland and

wetland and slowly as anticipated developing in the woodlands

Native planted species diversity on the site is high and the diversity

performance criteria have been met or exceeded again in 2006 in the three plant

communities In fact during the eight sampled growing seasons all planting

zones at the mine site continue to perform better than anticipated and better than

most restoration projects in the Midwest using similar planting specifications

The data shows that the site is tracking the desired trajectory for plant community

10 development diversity and productivity

11 Earlier you mentioned aerial photograph analysis What was the purpose of

12 the analysis of the aerial photographs in terms of vegetation on the site

13 The purpose of the aerial photographs is to evaluate vegetation cover and

14 representative plant communities over the entire site i.e to better understand

15 what was being measured on the ground and in particular to ensure in areas that

16 were not specifically measured that no significant erosion problems were present

17 on the project site

18 How was the aerial photography correlation done

19 Color aerial and color infrared aerial photographs were taken of the site by an

20 aerial photograph service firm for FMC The images were created by scanning

21 minimum number of aerial photographs required to cover the entire mine site

22 The scanned images were combined to create one composite color photo and one

23 composite infrared photo In 2005 color and infrared aerial photographs were

24 taken of the site on August 2005 In 2006 color and infrared aerial

25 photographs were taken of the site on August The color photographs were

26 then qualitatively evaluated to gauge the vegetation cover and representative plant

27 communities over the entire site

28 What did the aerial photograph correlation analyses show

29 The 2005 and 2006 aerial photograph correlation analyses showed that the entire

30 reclaimed mine site is very well covered with highly productive vegetation and no

31 indications of bare erosion prone soils were present

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Birds and Butterflies

Were there any additional monitoring activities voluntarily undertaken by

FMC that were not required in the MPA

Yes FMC volunteered to conduct formal breeding bird surveys and butterfly

surveys and report on the same The purpose is to document and characterize bird

and butterfly use of the habitats created as result of the reclamation of the site

Birds obviously are key animal group for wildlife habitation butterflies were

chosen as another key group for habitat evaluation because invertebrates also play

an indicated role in the ecological health of grassland and ecosystems

10 In regard to the bird studies completed what relevance do they have to

11 vegetation reclamation success

12 Bird communities have been widely studied and used extensively to assess

13 potential environmental impact and habitat conditions This is due to the relative

14 conspicuousness of birds widespread knowledge of detailed species and habitat

15 relationships and the relative ease involved in conducting the study of birds Bird

16 habitat affinities and population density have been found to correlate with habitat

17 structural and compositional characteristics

18 How were the bird studies conducted

19 Representative areas were chosen throughout the reclaimed site for conducting the

20 bird studies Study sites were identified after initial reconnaissance of the

21 property and when fundamental understanding of the complexity patchiness

22 and types of bird habitats present had developed Study points were selected far

23 enough apart so that the same individual birds were not audible between points

24 Seven study points were chosen throughout the site and were surveyed four times

25 on May 25 27 2005 and on May 24 25 2006 These same study points were

26 also chosen and surveyed during the years 1999 through 2004

27 Do you have map showing the location of the seven study point samples for

28 birds

29 Yes Such map is included as Figure to the Birds of the Reclaimed Flambeau

30 Mining Site study included as Attachment to the Flambeau 2005 Annual

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Reclamation Report and as Attachment to the Flambeau 2006 Annual

Reclamation Report Copies of the same are included as Exhibit 98

How were the study points surveyed

The bird surveys used accepted methods and were designed for quantification of

richness and relative abundance of bird species At the study points birds were

surveyed minimum of four times during the breeding season Surveys were

started at dawn and continued until mid-morning if weather conditions permitted

During timed surveys bird species heard or observed each minute were recorded

Surveys were continued until no additional species were recorded at each of the

10 study points Only after minimum of four consecutive minutes with no newly

11 recorded species were daily surveys completed at each point Additional listings

12 of bird species not recorded at the study points were prepared while moving

13 between study points The numbers of bird species at each point in the site were

14 evaluated Species and individuals on the site and in peripheral habitats were

15 recorded during the surveys All the raw field data were computerized for

16 summary and analysis and then summarized for each point and as total to

17 generate an overall listing for the site Each species use of the site was also

18 observed and recorded The study made special efforts to determine the breeding

19 status of species identified during the surveys Finally use of the property and

20 peripheral areas by federal or Wisconsin-sensitive rare threatened or endangered

21 species was to be studied If found we were to document and confirm the

22 identification of special status species and described their use of the property

23 What do the bird studies show

24 The bird studies indicate that the reclaimed mine site and adjacent lands have

25 rich character and abundance of bird species Birds have responded to the

26 reclaimed planted vegetation and the site continues to be important for several

27 grassland bird species The use of the reclaimed Flambeau site by birds in 2005

28 and 2006 is an important record of the success of reclamation and revegetation

29 activities at the mine site and confirms that appropriate native wetland grassland

30 and woodland habitats from the perspective of breeding and visiting bird species

31 have been created on the site

of 43

Steven Apfelbauni Pre-Filed Testimony

What other birds and animals have been observed using the site

Many other wildlife species and signs of wildlife have been observed over the

years number of bird species not recorded during bird monitoring were

observed on or flying over the site including coopers hawks white throated

sparrows bald eagles night hawks and wild turkeys Northern harriers were

observed hunting on the site and nesting in the upland grassland annually from

2002 to 2006 Over the past several years the following observations have been

made kingfishers from the river frequently foraging in the wetlands or on the

river sparrow hawks and red-tailed hawks hunting in the grassland zones and

10 several common egrets and great blue herons nesting in the 8.5-acre wetland

11 Other wildlife observations during this and previous years include white-tail deer

12 black bears red fox American badger coyote scat cottontail rabbits striped

13 skunk porcupine eastern chipmunks many frogs and toads e.g Spring peepers

14 gray tree frogs leopard frogs American toads wood turtles and garter snakes

15 In the spring of 2006 two state-threatened wood turtles were observed in the

16 biofilter wetland and swales Small notropid minnows and large populations of

17 water fleas Cladocerans have been observed in the wetlands onsite In addition

18 an abundant insect fauna was also noted each year since 2000 including several

19 species of ants numerous beetles grasshoppers tree crickets numerous moth and

20 butterfly species dragonflies and at least two species of katydids

21 Do you have any photographs of birds which have used the site

22 Yes

Exhibit Description

99A Photograph of an adult Harrier marsh hawk hovering over the

upland grasslands planted across the mine site

99B Photograph of adult Bluebirds perching on nesting boxes in the

upland grassland in the planted mine site

99C Photograph of territorial male Redwinged blackbird in the 1.7-

acre biofilter sifting on wetland vegetation

99D Photograph of an adult Tree swallow perching on nesting box in

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the upland grassland in the planted mine site

99E Photograph of adult Canada geese perching on muskrat lodge in

the 0.9-acre biofilter

99F Photograph of an adult Yellow headed blackbird perching on

wetland vegetation in the 8.5-acre wetland in the planted mine

site

99G Photograph of an adult Yellow headed blackbird perching on

wetland vegetation in the 8.5-acre wetland in the planted mine

site

99H Photograph of juvenile Harriers Marsh hawks in nest located

in upland grassland in the planted mine site

What relevance do butterflies have to vegetation reclamation success

Butterfly communities have also been widely studied and used to assess site

environmental conditions and vegetation recovery Again butterfly

conspicuousness knowledge of their habitat relationships and the relative ease in

conducting studies of butterflies make butterfly evaluation measure of

reclamation success using key animal groups Butterfly habitat affinities and

vegetation relationships have been well studied and butterfly diversity and

populations have been correlated with vegetation community habitats size and

10 presence of plants especially nectar producing plants

11 How were the butterfly surveys completed

12 The butterfly surveys were completed both in late spring and late summer 2005

13 and 2006 Representative study sites were chosen for conducting these studies

14 As with the bird surveys study sites were identified after initial reconnaissance of

15 the property and after development of fundamental understanding of the

16 complexity patchiness and type of butterfly habitat likely present Butterfly

17 study locations were the same as the bird study points which were found to

18 represent the types of butterfly habitats present Surveys were conducted along

19 permanently installed vegetation transects at these points At each of the study

20 points butterflies were surveyed minimum of times during May 25 27

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2005 August 16 19 2005 May 24 25 2006 and again August 14 -16 2006

Surveys were initiated at approximately mid-morning and continued until mid-

afternoon and repeat surveys were conducted mid-afternoon to early evening

under suitable meteorological conditions After brief wait period time surveys

were made in which the number of each individual species observed each minute

was recorded Surveys were continued until no later additional species were

recorded at each study point Only after at least five consecutive minutes with no

new recorded species were surveys completed at each point Additional listings

of butterfly species not recorded at the study points were prepared moving

10 between study points The number of butterfly species frequency of record of

11 butterfly species at each sample point and among all points were evaluated

12 All raw field data were computer entered for summary and analysis The

13 data was summarized for each study point and among all study points to generate

14 an overall listing for the site total list of residents migrants native and non

15 native butterfly species was also prepared

16 What do the butterfly studies show

17 Butterflies are an important element of the future ecological system created on the

18 reclaimed mine site The studies show their presence and relative abundance

19 The 2005 study revealed 11 butterfly species used the site and all but two

20 species were native species Most were resident species The 2005 survey also

21 showed an increase in diversity of species The 2006 study while showing some

22 decrease in diversity eight species because of very dry conditions during the

23 spring of 2006 and previous years show that all but two of the species observed

24 were native species and most were resident species Further although fewer

25 species were found in 2006 compared to 2005 there were more species found

26 than in 2000 2001 and 2002 The fact that numerous butterfly species have been

27 observed on the mine site during 2005 2006 and in previous years indicates that

28 appropriate caterpillar and adult food plant species are present on the site and at

29 least for the resident species this is another indication of revegetation success

30 Do you have any photographs of butterflies which have used the site

31 Yes

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Exhibit Description

OOA Photograph of an adult Viceroy butterfly foraging on Boneset

wetland plant planted in the 8.5-acre wetland

OOB Photograph of an adult Diana butterfly foraging on Wild

bergamot an upland grassland plant on the mine site

OOC Photograph of an adult Monarch butterfly foraging on Swamp

milkweed wetland plant planted in the 8.5-acre wetland

100D Photograph of an adult Banded purple butterfly foraging on

Boneset wetland plant planted in the 8.5-acre wetland

OOE Photograph of an adult Diana butterfly foraging on wetland plants

planted in the 8.5-acre wetland

00F Photograph of an adult Diana butterfly foraging on wetland plants

planted in the 8.5-acre wetland

What relevance do the HEP studies have in regard to revegetation

reclamation

The HEP analysis aids in evaluating the success of new vegetation systems at the

site Birds were selected as the target species group for the same reason the bird

study was conducted particular bird species was selected for each of the three

communities grasslands woodlands and wetlands comprising the reclaimed

mine site respectively The species selected were the Great Crested Flycatcher

10 woodlands the Savanna Sparrow grassland and the Tree Swallow wetlands

11 What does the HEP show

12 The HEP shows that the grassland habitat currently supports Savanna Sparrows

13 and provides them food cover and reproductive habitat Tree Swallows are

14 currently supported within all restored habitats communities at the mine site

15 including wetlands The Great Crested Flycatcher will be supported in

16 approximately 20 30 years with the current and anticipated rate of woodland

17 development on the site That they are not currently supported is not unexpected

18 this species need for woody vegetation tree canopy closure and nesting sites and

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larger woodland cavernous trees is not expected to be met in the near term

However Great Crested Flycatchers utilized the woods around the perimeter of

the reclaimed mine site and were found to occasionally feed but not breed on-

site In sum the HEP analysis shows that the use by these three bird species is

fully anticipated as the expected development of vegetation on the reclaimed mine

site continues in the future

Opinion

Do you have an opinion to reasonable degree of scientific certainty as to

whether or not each of the reclamation vegetation standards have been met

10 Yes

11 What is that opinion

12 Each and every reclamation vegetation standard has been met or exceeded in 2005

13 four years from NOC and again in 2006 despite the occurrence of certain

14 adverse natural conditions including severe regional drought and low-snow

15 winters

16 Has the requirement to accomplish the HEP been met

17 Yes

18 Where can one find documentation that the reclamation vegetative standards

19 have been met

20 One can find documentation in FMCs 2005 and 2006 Annual Reclamation

21 Reports previously marked as Exhibit 31 and Exhibit 32 respectively

22 The Reports not only contain extensive text but summary tables as to compliance

23 with the performance standards See Table 11 Table in Attachment

24 Executive Summary 2006 Results and Performance Standards AES Analysis

25 of Revegetation Success for Reclamation of the Flambeau Mine November 2006

26 included as Attachment AES Aerial Photography Correlation With

27 Vegetation Monitoring Data on the Reclaimed Flambeau Mine Site November

28 2006 included as Attachment Also included in Attachment are numerous

29 photographs documenting 2006 activities including prescribed burns conducting

30 of TMS showing vegetation and wildlife other site vegetation monitoring and

31 photographs relating to the Copper Park Business and Recreation Area

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Industrial Outlot That the site is achieving the recreational end-use intended

can also be affirmed by asking the community about their use of the trail system

and in attendance of open houses and others events e.g bird and native plant

walks on the reclaimed mine site

You mentioned that the reclamation revegetation standards were met despite

the presence of certain adverse conditions Can you explain that

Yes The site met the reclamation vegetation standards despite the presence of

adverse conditions including severe drought in years 2003 2005 and 2006 lack

of heavy winter snow and instead winter freezing rains during winter 21/03/2004

10 and heavy animal herbivory primarilydeer of planted trees

11 Please explain the drought in years 2003 2005 and 2006

12 Rainfall statistics show that the area and surrounding area suffered severe

13 thought during those years See Exhibit Fl Drought was so severe in 2005 and

14 2006 that the Governor of the State of Wisconsin issued an Executive Order in

15 each year declaring thought emergency

16 What do droughts do to vegetation

17 Droughts stress vegetation and make it more susceptible to harm caused by harsh

18 winter conditions Plants also are less productive shorter in stature and often do

19 not flower and produce seed

20 What about the lack of winter snow and instead freezing rains

21 In 2003 winter was marked by lack of heavy winter snow This likely had an

22 adverse effect on vegetation growth because there is less snow to insulate the soil

23 and plant roots from extreme cold and freezing conditions In particular young

24 tree seedlings that may have root systems in early development stages can be

25 vulnerable to freezing conditions in the root zone and also winter exposure and

26 freezing of buds can reduce above-ground vigor and growth

27 How does lack of snow affect vegetation

28 normal winter snow pack protects seedlings from cold winter temperatures

29 lack of snow degrades this protection Some shallow rooted seedlings actually are

30 pushed out of the soil by frost and their roots are then exposed to freezing and

31 drying conditions and they die

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What was the winter of 2003 like

It was harsh with an early winter rain followed by hard freeze and extended

extreme cold temperatures These harsh winter conditions impacted trees

throughout the regions with the DNR reporting increased coniferous species

mortality in early 2004

What is herbivory

Herbivory is the consumption of plants here by deer and insects herbivores

Herbivores feed on plants destroying or damaging them Sometimes they will pull

young tree seedlings completely from the ground or eat plants down completely

10 to the top of the protective tree tube each time leaf emerges into the open air

11 and this damages and disfigures the seedlings or kills them At the mine site

12 herbivory is primarily caused by deer browsing The herbaceous vegetation

13 systems were also heavily grazed by very abundant late summer grasshopper

14 populations particularly during the drought years Because the grasshoppers only

15 consumed above-ground plant tissues no long term damage to the plants typically

16 is measurable

17 Do you have any photos of damage caused by deer onsite

18 Yes Exhibit F2A shows deer browse herbivory damage to planted trees in

19 woodland planting area outside of the exclosure area Exhibit F2B shows deer

20 browse herbivory damage to planted trees in woodland planting area outside of

21 the exclosure area Exhibit F2C shows deer browse mortality on planted trees in

22 the woodland plantings outside of the exclosure area

23 What impact did deer browsing have

24 Observations show that deer browsing directly contributed to increased mortality

25 among the planted trees on the site This is supported by the fact that the woody

26 species survivorship is twice as great in the woodland at the reclaimed mine site

27 protected by fence exclosure as compared to average woody species

28 survivorship in the other nine unfenced woodland areas on the reclaimed mine

29 site The exclosure fence was purposely installed in the mine to be able to

30 measure the effect of deer browsing on the reclamation success

31 Was tree morality anticipated

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Yes High tree mortality was anticipated and therefore woodlands on the site

were over-planted with woody species Therefore the goal of having trees

numerous enough to develop into mature woodlands with appropriate structure

was achieved Tree mortality experienced was due to natural causes such as

summer drought harsh winter conditions and deer browsing and not to any prior

mining activity or any deficiencies in reclamation activities

Vegetation Maintenance Requirements

In addition to revegetation and reclamation requirements in the MPA were

there any vegetation maintenance requirements in the MPA10 Yes Subsection 5.11.4.9 of the MPA requires prescribed burning of the grassland

11 portion of the site every three to five years as necessary starting four years after

12 planting for 10 years Further Subsection 5.11.4.9 of the MPA requires long-

13 term management of the vegetation on the site to ensure that plantings develop in

14 manner consistent with naturally occurring plant communities These

15 requirements have been and are being met

16 Conclusion

17 Has the goal and intent of the Reclamation Plan been met in terms of

18 revegetating the site

19 Yes The Reclamation Plan called for restoration of the site through creation of

20 natural landscape with high-quality wildlife habitat which could also be used by

21 the public for passive recreation All reclamation revegetation standards have

22 been met The Reclamation Plans intent goal and mandatory requirements have

23 all been met The site is filly revegetated stable home to and alive with

24 numerous species of wildlife and hundreds of varied species of plants and is

25 very pleasing ecologically flmctional site The site is very beautiful natural

26 resource area The revegetation has been tremendous success and serves as

27 state and national example of natural habitat reclamation on such mine sites

28 Does this conclude your testimony at this time

29 Yes

30

AES - Flambeau Mine...21 AES is broad-based ecological consulting contracting and restoration firm...

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