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 or 2013 with Senate Bill 349, proposed legislation that would roll back the ability of local units of government to regulate air and water quality, 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 will likely be taken up by the Assembly in spring of 2014.

Resources

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.

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.


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