Legal

General environmental permits overseen by the DNR deal with air quality, storm water, high-capacity wells, wetlands, and endangered species. Besides these permits, Wisconsin and Minnesota currently lack statewide regulations specific to industrial frac sand mining, setting the stage for intensely local battles. Local units of government have numerous tools at their disposal, such as zoning, licensing ordinances, or even temporary moratoriums, which allow them to influence the location and operating conditions of frac-sand developments. These tools are very important. Some estimates suggest that in Wisconsin a third of frac-sand operations have clustered in unzoned areas, “leaving local officials with little control over how or where mining occurs” (see Wisconsin frac sand sites double).

Through licensing ordinances, towns may conditionally approve or prohibit frac-sand operations on a case by case basis, regulating such operations in order to protect the health, safety, and general welfare of town residents. A nonmetallic mining ordinance adopted by the Town of Cooks Valley was challenged by frac sand interests, but was eventually upheld by the Wisconsin Supreme Court in February of 2012. Cooks Valley, an unzoned township in Chippewa County, WI, adopted village powers in 2001 and adopted a nonmetallic mining ordinance in 2008 to regulate sand mining. The Supreme Court decision established licensing ordinances as an important non-zoning tool available to local governments.

Towns have also negotiated development or mining agreements directly with companies. These are contracts that specify conditions of operation or even payment of fees for maintenance, repair, and reconstruction of town roads. One of the first such agreements was negotiated by the Town of Howard, which is not zoned, with EOG Resources in July of 2011 (see the Mining Agreement).

In June of 2013, Pepin County adopted a overlay zoning ordinance that effectively bans frac-sand mining along a 10-mile stretch of the Great River Road and Lake Pepin. The Great River Road/National Scenic Byway Preservation Zoning Ordinance is the first ordinance that actually bans frac-sand operations from a defined territory.

Local control over frac sand mines came under scrutiny in October of 2013 with Senate Bill 349, sponsored by Senator Tiffany and Representative Ballweg. The legislation proposed to roll back the ability of local units of government to regulate air and water quality, the use of explosives, and highway use contracts related to mining. A hearing held on October 24 brought passionate testimony for and against the bill, which did not advance.

In the Spring of 2014, State lawmakers once again discussed a proposed bill that would have undermined local regulation of frac sand mining. On February 26, Senator Tiffany and Representative Ballweg introduced Senate Bill 632 and Assembly Bill 816, seeking to restrict local governments from applying new regulations to existing frac sand operations. Legislators moved quickly, holding a joint committee meeting days later to gather testimony on the bill. Concerned citizens and others had less than a week to study the bill and raise questions, but dozens still appeared in Madison for a contentious committee hearing on Monday, March 3 (see reports on the hearing by Isthmus and Wisconsin Watch). The committee held a vote on Wednesday, March 5, approving the bill and passing it on to the full senate, where it remained until the close of the legislative session.

For an excellent overview of state legislative attempts to remove local control over frac sand mining, see "The fight over frac sand mining in Wisconsin" by Tamara Dean. 

Resources on Local Regulations of Frac Sand Mining

Denzin, Brent. 2007 (August). Open Meetings Law Tool-Kit: How the Open Meetings Law Can Help Protect Your Community. Midwest Environmental Advocates.

Harnish, Thomas W. 2011. Local Government Role in Regulating and Controlling Non-Metallic Mining Operations in Wisconsin: Toolbox for Towns Legal Handbook. Wisconsin Towns Association.

Haines, Anna. 2012 (April). Planning and Zoning for "Frac Sand" Mining. Center for Land Use Education, University of Wisconsin-Extension.

Haines, Anna and William Risse. 2012 (August). Evaluating Nonmetallic Mining: County Zoning Ordinances. Center for Land Use Education, University of Wisconsin-Extension.

MEA. 2012 (July). Frac Sand Mining in Wisconsin: Legal Background for Citizens and Community Groups. Midwest Environmental Advocates.

Risse, William and Anna Haines. 2012 (August). Evaluating Nonmetallic Mining: County Comprehensive Plans. Center for Land Use Education, University of Wisconsin-Extension.

Risse, William and Anna Haines. 2012 (August). Evaluating Nonmetallic Mining: Comprehensive Plans and Zoning Ordinances. Center for Land Use Education, University of Wisconsin-Extension.

Stoddard, Glenn M. 2012 (June). Town Regulations of Frac Sand and Nonmetallic Mining Operations in Wisconsin. Stoddard Law Office, Eau Claire, WI.

WLC. 2013 (June). Regulation of Sand Mining in Wisconsin: Information Memorandum. Wisconsin Legislative Council. Madison, WI.

SB 349

Dirr, Alison and Ron Seely. Sand mining bill could also affect iron mine, factory farms. Wisconsin Center for Investigative Journalism, October 24, 2013.

WLC. Analysis of SB 349: Memo from WLC staff attorneys to Kathleen Vinehout. Wisconsin Legislative Council, October 23, 2013.

SB 632 / AB 816

"Sierra Club Opposes Tiffany's Latest Frac-Sand Mining Favors." Press release, Sierra Club John Muir Chapter, February 27, 2014. 

"Stop the Frac Sand Free-For-All, Oppose SB 632, the Eat My Dust Bill." Wisconsin League of Conservation Voters, Talking Points, February 27, 2014.

Written testimony from attorney Glen M. Stoddard, to the Wisconsin State Senate Committee on Workforce Development, Forestry, Mining, and Revenue and the Assembly Committee on Jobs, Economy and Mining, February 27, 2014. 

Letter from William Mavity, Pepin County Board District 12 Supervisor, to the Senate and Assembly committees on mining, February 28, 2014. 

Letter from Elizabeth A. Feil, attorney at law and Trempealeau County resident, to the citizens of Wisconsin counties impacted by industrial sand mining, March 3, 2014. 

Written statement by Forest Jahnke, Crawford Stewardship Project, to the Wisconsin Senate Committee on Workforce Development, Forestry, Mining, and Revenue, and the Assembly Committee on Jobs, Economy, and Mining, March 3, 2014. 

"SB 632 Frac Sand Mining with Unregulated Greenlight combined with Local Government Usurpation," statement by Susan Michetti, representing the South Western Wisconsin Area Progressives. 

Vinehout, Kathleen. Testimony to the Joint Public Hearing of the Senate Committee on Workforce Development, Forestry, Mining and Revenue & Assembly Committee on Jobs, Economy and Mining, March 3, 2014. 

Letter from Richard J. Stadelman, Executive Director of the Wisconsin Towns Association, to the Wisconsin State Senate Committee on Workforce Development, Forestry, Mining, and Revenue and the Assembly Committee on Jobs, Economy and Mining, March 4, 2014. 

Vinehout, Kathleen. "Sand mine bill takes away communities' right to say 'no'." Winona Daily News, March 5, 2014. 


Other News

WDC. Frack sand industry support spikes with mines: Natural gas, sand mining contributions grow 21-fold in five years. Wisconsin Democracy Campaign, May 21, 2013.


No comments:

Post a Comment