By LeAnn R. Ralph
TOWN OF OTTER CREEK — The Otter Creek Town Board has instructed attorney Glenn Stoddard to complete a draft of a non-metallic mining ordinance for the board’s consideration at the February meeting.
Stoddard spoke to the Otter Creek Town Board at the January 8 meeting about his experiences with the mining ordinance he wrote for the Town of Cooks Valley in Chippewa County that was upheld by the state Supreme Court in February of 2012.
Stoddard also spoke about the process in the Town of Cooks Valley of licensing three sand mines “after the fact.”
While the Cooks Valley nonmetallic mining ordinance was being challenged in court, three sand mine companies went ahead and started mining without receiving a permit from the Cooks Valley Town Board, Stoddard said.
The Supreme Court upheld the ordinance, and all three companies found themselves operating illegally in the Town of Cooks Valley, he said, noting that the ordinance had already been adopted by the town board when the sand mines began their operations.
The Cooks Valley Town Board would have been within their rights to shut down all three sands mines but decided not to do that, Stoddard said.
Instead, the Cooks Valley Town Board decided to work with the companies on licensing applications and permits, he said.
To date, Preferred Sands has completed the permit process, and the other two companies, EOG Resources and Chippewa Sands, are working toward obtaining permits, Stoddard said.
The three companies “bet on the courts, and they lost,” he said.
The Cooks Valley permit process allows the regulation of a variety of areas, including groundwater, dust, noise, hours of operation, renewing the permit, a process for revoking and enforcing the permit, blasting, and reimbursing the township’s costs for hiring experts to help develop the mining permit, as well as property value guarantees for surrounding landowners.
Town of Howard
Otter Creek Town Board members said they liked all of the detail in the Town of Howard’s mine licensing ordinance.
The Town of Howard is east of Colfax and is next door to the Town of Cooks Valley in Chippewa County.
Besides the regulatory detail, the difference between Howard’s ordinance and the Cooks Valley ordinance is that the Howard ordinance gives the option for an agreement with the mining company rather than the town board issuing a permit, Stoddard explained.
Cooks Valley can revoke the mining company’s permit if the company is not upholding the conditions included in the permit, he said.
Howard cannot revoke the agreement with the mining companies because both the town board and the company made the agreement, Stoddard said.
“An agreement is different than a permit … the town board has more control with a permit and can revoke the permit,” he said.
The Dunn County Board adopted a nonmetallic mining overlay district ordinance last fall that regulates areas regulated by the mining ordinances in the Town of Howard and the Town of Cooks Valley.
Since the Town of Otter Creek has opted into county zoning, Otter Creek is covered by the Dunn County ordinance.
Why would the Otter Creek Town Board then also want to have a nonmetallic mining ordinance now that the Dunn County ordinance is in place?
“We want an ordinance that gives us something to stand on,” said Steve Scoll, town supervisor.
An Otter Creek ordinance could be more restrictive than the county’s ordinance, said Mark Warner, town chair.
An ordinance adopted by the township would give Otter Creek an additional level of control, Stoddard said.
In other words, if Dunn County approved a frac sand mine in Otter Creek but the Otter Creek Town Board did not approve a permit for the frac sand mine, the mine would not be able to operate.
The reverse also would be true: if Otter Creek approved a frac sand mine but Dunn County did not, the sand mine would not be able to operate.
In terms of court challenges, the nonmetallic mining ordinance with fewer details would be less likely to be challenged in court than the mining ordinance with more details.
“Companies are now saying if an ordinance looks like the Cooks Valley ordinance, do not challenge it because the Supreme Court has already upheld the Cooks Valley ordinance,” Stoddard told the Otter Creek Town Board.
The other advantage of having an ordinance with fewer details is that the town board has greater latitude in setting the conditions in the frac sand mine permit, he said.
“The more that’s in an ordinance, the more likely it is that a (frac sand) mining company will find something that they can challenge in court,” Stoddard said.
In addition, all frac sand mine locations are different, and what would be necessary to regulate in one location might not be necessary at all in another location, he said.
Having the conditions in a permit rather than in an ordinance allows more flexibility for conditions, Stoddard said.
“You have to look at mine sites on a case-by-case basis. A permitting process allows you to customize for a particular operation on a rational basis,” he said.
“In my opinion, the closer the ordinance is to Cooks Valley, the less likely it is that it will be challenged in court,” Stoddard said.
The police powers granted to town boards by the state legislature give town boards a certain amount of latitude in regulating activities in the best interests of health, safety and welfare of the residents of the township, he noted.
“The Cooks Valley approach is a good one. It is already proven. It has already been upheld by the Supreme Court,” said Mark Warner, town chair.
Under a more general ordinance like the ordinance adopted by Cooks Valley, “we can tailor the permit to the company and to the situation,” he said.
The Otter Creek Town board approved a motion directing Stoddard to write a final draft of a nonmetallic mining ordinance patterned on the Cooks Valley ordinance and to also draft permitting procedures for a nonmetallic mine.
The Otter Creek Town Board is expected to take action on the ordinance at the February meeting.
The Town of Otter Creek is currently under a mining moratorium approved by the town board.
To date, as far as any of the town board members are aware, no companies have been prospecting for frac sand in the Town of Otter Creek.