By LeAnn R. Ralph
COLFAX — Although no formal proposal is available yet, the prospect of a 2,000 acre sand mine in the Town of Howard brought about 30 concerned citizens to a meeting at the Grapevine Senior Center in Colfax June 2.
One of the issues brought to the forefront by the potential mine is setbacks for homes on the Dunn County side.
The Town of Howard has a mine-licensing ordinance that requires an 800-foot setback from the boundary of a property used for any mining activity, ranging from the extraction site to private haul roads, but the ordinance does not apply to people living right next door in the Town of Colfax.
People living near the proposed mine site say that a number of other residents in the area have signed leases with Northern Sands to allow mining activity on their land.
“He who controls the assets controls everything,” said Dave Foris of Colfax.
The sand mine leases are like the gold rush, he said.
Unfortunately, Foris said, banks consider the leases to be a lien against the property and will not loan money to property owners.
Foris noted that a farmer he knows wanted to borrow money to put in his crops but was told the bank would not lend him money because of the sand mine lease.
“By hook or by crook, by truth or by half-truth, they get people to sign the lease, and then they control the assets,” Foris said.
Several people at the meeting said they wanted an intergovernmental agreement between the Towns of Howard and Colfax to protect property owners in the Town of Colfax.
The closer the Town of Colfax’s ordinance mirrors Howard’s ordinance, the more likely the Howard Town Board will go along with it, said Ken Schmitt of Colfax and also a Town of Howard resident.
Although people may want more than an 800-foot setback, if the setback is too much, it will not hold up in court, he said.
“And if it does not stand up in court, you have gained nothing,” Schmitt said.
Ordinances that are too stringent constitute a “restraint of trade,” said Ron Koshoshek, a Professor Emeritus at UW-Eau Claire, the Town of Howard’s lead negotiator with EOG Resources, and an environmentalist who works with the Wisconsin Towns’ Association on the frac sand issue.
In the past, Koshoshek chaired the Wisconsin Public Intervenor Citizens’ Advisory Committee for nine years.
Town boards cannot ban the sand mines, but they have to find the best protection they can through zoning and police powers, Koshoshek said.
Dunn County has a mining overlay zoning district, and townships must have a comprehensive plan that upholds the zoning, he said.
State law requires that a municipality’s zoning code be consistent with the comprehensive land use plan.
“You cannot be arbitrary. You cannot arbitrarily restrain trade,” Koshoshek said.
Through police powers, town boards can enact mine licensing ordinances.
“You need leverage. You can say ‘yes’ or ‘no’ based on a comprehensive plan, but you need a mine licensing ordinance, too,” Koshoshek said.
Over the past six years, people who are in favor of sand mines have pointed out that sand and gravel operations have been in existence for decades, and there is no difference between small sand and gravel operations that provide material for a local road project and an industrial sand mine that ships millions of tons out of state to be used for hydraulic fracturing.
State law considers sand and gravel an agricultural product, but frac sand is an industrial product, Koshoshek said.
Tom Zwiefelhofer, a member of the Howard Town Board who said he came to the meeting representing himself and not the Town of Howard, said he has been looking for a hard copy of a sand mine lease since last November but has not been successful so far.
Zwiefelhofer said he is interested in reading the fine print on the leases but that no one has been able to provide a copy to him.
After talking to five or six different people who have either signed or who have read leases, the leases seem to be contingent upon obtaining permits for the sand mine and contingent upon the leases being sold to a sand mine company, he said.
Several people at the meeting said that the individuals who are trying to get people to sign leases for the Howard sand mine are in land acquisitions but are not intending to develop the mine themselves.
The leases often contain a “gag” clause that does not allow the person who signed the lease to talk about the terms and conditions, said Pat Popple of Chippewa Falls, who has been organizing and coordinating information about sand mines for the past six years.
The most successful groups are those who are well prepared and approach town boards with a specific goal and go with “one concerted voice” to ask for what they want, such as a licensing ordinance, Koshoshek said.
Heather Anderson, Town of Auburn, also has been dealing with the sand mine issue for the past six years and said it is helpful to have additional people come to a meeting and show their support.
If 50 people attend a meeting, that could be “50 people who might not vote (for the town board) in the next election,” she said.
The next step would be to form a small committee to develop ordinances and bring them to the town boards for consideration, said Tom Quinn of Downing, a supervisor on the Dunn County Board and the executive director of the Wisconsin Farmer’s Union.
People also need to make local control — and especially local control of sand mines — an issue for the next election, Schmitt said.
The message for legislators is that they need to be “pro local control and not take away our rights to mitigate the effects of the mines. No two (sand mines) are alike,” he said.
“That’s the message legislators need. We have not held up (the sand mining) industry. But do not take away our local control to help mitigate some of the problems,” he said.
State legislation proposed by Senator Tom Tiffany (R-Hazelhurst) last year would have taken away local control in a variety of areas, including not allowing town boards to require companies involved in trucking sand to repair damage to any town roads caused by the heavy trucks, unless the town board could prove that damage had been perpetrated with “malicious intent.”
Several people at the meeting said they had heard that the state Legislature intended to tack the provisions of Tiffany’s bill onto a budget bill so there would be no public hearing on the legislation this time around.
There may be some light at the end of the tunnel concerning sand mines in west central Wisconsin, Koshoshek said.
In this area, sand mine companies are mining Wonewoc sand, which is fairly close to the surface and is used in “shallow” hydraulic fracturing because it can withstand 6,000-pounds per square inch before it shatters, he said.
The Jordan sand and the St. Peter sand is used in deep wells and can withstand pressure of up to 10,000 to 12,000 pounds-per-square-inch, Koshoshek said.
EOG Resources has discovered that “junk” sand from the sand mines can be useful if it is mixed with Wonewoc sand, but if that is the case, then Chippewa County will need to rewrite the reclamation ordinance, he said.
Jordan sand and St. Peter sand cannot be mined in this area because it is far too deep under the surface, and the Tunnel City sand typically is only in deposits a few feet deep, Koshoshek said.
Schmitt agreed that the other kinds of sand are too deep to make mining feasible.
Train cars will be another limiting factor for sand mines, Koshoshek said.
If sand companies have to truck the sand 20 to 50 miles, they cannot compete with companies that are closer to the railroad, but Canadian National has more business now than the company can handle, he said.
Oil trains moving through Wisconsin carrying Bakken crude oil could pose another threat, Popple said.
A train carrying Bakken crude oil derailed and exploded in a town in Quebec last July killing 47 people. A few months earlier a train carrying Bakken crude oil derailed and exploded in Lynchburg, Virginia, although no one was killed in that incident.
Several people who attended the meeting said they planned to attend the Colfax Town Board meeting on June 11 at 7:30 p.m. to encourage the town board to consider an intergovernmental agreement with Howard.