MOU between Colfax and Howard could protect DC residents

By LeAnn R. Ralph

MENOMONIE  — A Memorandum of Understanding (MOU) between the Town of Colfax and the Town of Howard could protect Dunn County residents from any negative impacts of a sand mine.

The issue of protecting Dunn County residents from a proposed 2,000 acre sand mine in the Town of Howard in Chippewa County was a topic of discussion for the Dunn County Planning, Resources and Development Committee August 12.

Although a formal application for a reclamation permit was not yet listed on Chippewa County’s land conservation office website as of August 13, representatives for Northern Sands say they want to develop a 2,000 acre sand mine in the Town of Howard near the border with Dunn County.

People who live in Dunn County on the border with the Town of Howard say they are concerned about a variety of issues, such as property values, noise, truck traffic, train traffic, and groundwater and air quality.

Bob Walter, an attorney who is a Dunn County Board supervisor and chair of the PR&D committee, said he believes that state statutes allow the Town of Howard and the Town of Colfax to form an intergovernmental cooperation agreement.

With an MOU in place, the Colfax Town Board and the Howard Town Board could be the mine licensing body for both townships, Walter said.

Kathy Stahl, a Town of Colfax resident, wondered “what would be in it for Howard” to give the Howard Town Board an incentive to develop an intergovernmental agreement with the Town of Colfax.

The cost of developing a mine licensing agreement with a sand mining company could be split between the two townships, Walter said.

And if several townships were working together, that would reduce the cost of enforcing the agreement for both townships, he said.

Representatives for the sand mine companies do a lot of bullying in town board meetings and say they will file a lawsuit if they do not get what they want, said Dr. Ron Koshoshek, a retired UW-Eau Claire ethics professor and one of the negotiators for the Town of Howard’s mine licensing agreement with EOG Resources.

EOG operates the Schindler and Sikora mine on county Highway B east of Colfax in the Town of Howard.

Koshoshek also is known as an environmentalist who works with the Wisconsin Towns’ Association and is the former chair of the state’s Public Intervenor Citizens’ Advisory Committee.

With the high profit of the sand mining industry, there is no need for taxpayers to subsidize their own protection, Koshoshek noted.

Regulating the sand mines using an intergovernmental cooperation agreement would be more efficient than filing civil lawsuits, he said.

Overlay district

Dunn County’s non-metallic mining overlay district is the best ordinance in the state for regulating sand mines, Koshoshek said.

“It is by far the best. Not by a little bit — but by far,” he said.

The underlying zoning designation of industrial remains, and the mining overlay district is considered a separate rezone, Walter said.

Town boards cannot grant the overlay district rezone without the county’s approval, but town boards have the final veto on any rezone, he said.

A town board’s authority to veto any rezone is standard on all rezone requests statewide, Walter noted.

If a town board says “no” to a rezone, the county cannot approve the rezone, he said.

The Town of Dovre in Barron County denied a rezone for a sand mine, but the Barron County Board approved the rezone and the mining proposal moved forward, Koshoshek said.

“That was illegal,” Walter replied.

Unfortunately, the Dovre Town Board did not want to spend more money on the issue, and the county’s rezone was never appealed, Koshoshek said.

Diminishing assets

Koshoshek wondered about the diminishing assets rule and denying rezones for sand mines on land that is contiguous to the original rezone and under the control of an owner or operator.

Koshoshek was of the opinion that once a parcel had been rezoned, a rezone for sand mining could not be denied on adjacent land under the control of the same operator or landowner.

Rezoning is different than issuing a mine license or a permit, Walter said, noting that he and former Dunn County Corporation Counsel Scott Cox had held a discussion on that issue at the time Dunn County was working on the overlay district.

If there is a thousand acres in question, and a rezone is granted for 100 acres, then the rezone is not guaranteed for the remaining 900 acres, he said.

Diminishing assets would apply only for a license or a permit, Walter said.

Licensing falls under a township’s police powers to protect the health, safety and welfare of the town residents, he said.

Counties have limited police powers, but townships have quite a lot of police power authority, Walter said.

If the zoning is in place, and a special exception to operate a sand mine is granted, then the diminishing assets rules would apply, he said.

If the zoning is not in place, then a sand mine would not automatically be expanded by the diminishing assets rule, Walter said.

If 100 acres was zoned industrial and then overlay zoning was approved and a special exception was granted for 20 acres, then the diminishing assets rule would apply to the remaining 80 acres, because the zoning is in place, but it would not apply beyond the initial 100 acres, he said.

If a town board does not know the full extent of what could be mined for sand, then it would be good advice to say “no” to a rezone, Koshoshek said.

Tiffany bill

The issue of diminishing assets and maintaining local control of sand mines is of the utmost concern to people living in West Central Wisconsin in sand mining areas.

A bill introduced by state Senator Tom Tiffany last year would have substantially changed the law on diminishing assets.

Under current state law, if a property is actively being mined for sand, then diminishing assets applies, Walter said.

Under the Tiffany bill, diminishing assets would have applied if the mineral rights had been registered for a particular property but there was no mining activity, he said.

The Tiffany bill is not expected to come up as separate legislation, but rather, will be buried in the state’s budget bill, said Steve Rasmussen, chair of the Dunn County Board.

The Tiffany bill was designed to expand the connection with a piece of land. If even $1 had been paid for a lease on land that might be mined someday, at some point in the future, the diminishing assets rule would have applied, said Nick Lange, Dunn County Corporation Counsel.

Vicinity map

Dunn County’s non-metallic mining overlay district requires a vicinity map, but it is limited to the names of landowners a half mile away from the proposed sand mine site, Koshoshek said.

Instead of a half mile, Koshoshek said he would recommend that Dunn County amend the overlay ordinance to include on the vicinity map the potential scope of a sand mine and to include all land under the control of the applicant by ownership or by lease.

That way, the information would become part of the public record, and a town board could use that information to make decisions, he said.

Continuous reclamation

Gary Bjork, county board supervisor from Colfax, a member of the PR&D committee, and a member of the Colfax Town Board, wondered if town boards have the authority to require that reclamation be completed on one section of a sand mine before the company moves on to mine another section.

State statute encourages continuous reclamation, but mining companies cannot be forced to reclaim before they move on to another section, said Dan Prestebak, Dunn County conservationist.

Instead of reclaiming the land right away, companies can pay the fee for leaving the acreage open, he said.

Town boards have police powers, and in an effort to protect the health, safety and welfare of town residents, could put continuous reclamation in a mine licensing agreement, Walter said.

The strategy, however, “would be tenuous at best,” he said.

Koshoshek said he had talked to an attorney for a sand mine company about the expanded vicinity map and whether it would be a violation of property rights.

The attorney said it would all be a matter of public information and public record and would not be a violation of property rights, he said.

Town boards “need to have some idea of how far a mine can spread,” Koshoshek said.

When mines spread out and cover more and more acres, people tend to move out of an area, and the loss of population results in a loss of the sustainability of the local economy, he said.

Pioneer work

“This is pioneer work,” Koshoshek said, referring to the Dunn County non-metallic mining overlay district and the licensing ordinances of the townships.

An overlay district requires a special exception, and the county can set conditions for the special exception to protect the area where mining will take place, Walter said.

An interesting question would be to find out how the ordinance relates to the authority of the towns to regulate sand mines, said Tom Quinn, Dunn County Board supervisor from Downing and a member of the PR&D committee.

Quinn also is the executive director of the Wisconsin Farmers Union.

It might be worthwhile to form a task force with the Wisconsin Towns’ Association to review the ordinance and then make recommendations to the towns about licensing ordinances, he said.