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Town of Howard wants to keep local control of frac sand mines

By LeAnn R. Ralph

TOWN OF HOWARD —  The Howard Town Board has gone on record saying they want to maintain local control of sand mines through the township’s mine licensing ordinance.

After Susan Haake, town clerk, read the resolution at the February 3 meeting “in support of local control of nonmetallic mining operations,” the Howard Town Board unanimously approved the resolution.

At issue is whether the state Legislature ends up stripping local town boards of their ability to enforce mine licensing ordinances.

The mine licensing ordinances give town boards the ability to negotiate mining agreements with frac sand companies.

The Town of Howard has one sand mine in operation, the S&S Mine operated by EOG Resources.

The Red Flint Group recently filed an application with Chippewa County for a reclamation permit for a 1,300 acre sand mine, processing plant and rail loading facility in the Town of Howard.

Two bills were introduced by state Senator Tom Tiffany last year that undermined local control of the sand mines.

For example, according to an analysis by the Legislative Reference Bureau of one of Senator Tiffany’s bills regarding diminishing assets, a zoning ordinance that is adopted after a nonmetallic mining operation has started cannot apply to land that is contiguous to a nonmetallic mining operation that is under the control or common ownership of the person who owns or controls the land where the mining is occurring, even if non-metallic mining is not taking place on the contiguous property at the time the new ordinance is adopted.

The concern this year is that removing local control of the sand mines will be an amendment tacked onto the 2015-2017 budget.

“If it is included in the governor’s budget, we’ve got a problem,” said Vernon Schindler, chair of the Town of Howard, at the February 3 meeting.

Supreme Court

According to the resolution adopted by the Howard Town Board, for more than one hundred years, Wisconsin state law has given town boards the authority — when properly authorized by a vote of the town electors to exercise village powers — to regulate activities for the health, safety and welfare of the public.

Village powers are also referred to as police powers.

The resolution also highlights the 2012 Zwiefelhofer vs. Town of Cooks Valley Wisconsin Supreme Court decision to uphold the right of town boards to adopt regulations for frac sand mines to protect the health, safety and welfare of the public.

The 2012 Supreme Court decision points out that while some overlap exists between zoning ordinances and regulating or licensing ordinances, the intent of zoning ordinances is to direct where development occurs, and that the Town of Cooks Valley nonmetallic mine permit ordinance intends to regulate sand mining operations no matter where those operations are located in the township.

The written decision notes: “It may be that there are certain locations in the Town where a nonmetallic mine would not be allowed, even with conditions attached, but the Ordinance’s impact on the location of nonmetallic mines is an incidental consequence of the Ordinance’s general goal of ensuring that nonmetallic mines are ‘in the best interests of the citizens of the Town, and will be consistent with the protection of public health, safety and the general welfare’ no matter where they are located.”

The written decision also points out that Wisconsin state statute 61.34 allows municipalities great flexibility in their use of police power. Towns may use “license, regulation, suppression, borrowing, taxation, special assessment, appropriation, fine, imprisonment, and other necessary or convenient means” in order to implement ordinances.

The decision goes on to say: “The Ordinance clearly regulates the use of land in a potentially dramatic way. It regulates nonmetallic mining in many respects and in great detail. A landowner might be barred from engaging in nonmetallic mining in a certain location or in the entire Town because of the terms of the Ordinance.”

Flexibility

The resolution adopted by the Town of Howard points out that limiting the authority of the town board by taking away the ability to adopt frac sand regulatory ordinances removes the flexibility to adapt to the sand mining industry as it evolves.

“Towns should maintain the ability to implement and amend conditional use permits, licensing ordinances, road agreements and other nonmetallic mining regulations in order to adapt to the sand mining industry as it evolves and (the mining) practices change over time,” the resolution states.

“Previous proposals in the Wisconsin State Legislature have attempted but failed to significantly reduce town, village, city and county authority to protect public health, safety and welfare through  regulating non-metallic mining operations, including industrial frac sand mining and processing operations,” the resolution goes on to say.

“Local governments,” the resolution notes, “have the flexibility to adapt non-metallic mining ordinances to fit the unique features of an area including local geology, topography and infrastructure that statewide regulation lacks.”

The resolution concludes, “The Howard Town Board supports local control of non-metallic mining operations, and opposes attempts to limit the ability of local governments to enact ordinances that protect the health, safety and welfare of the public by crafting regulations to fit the unique circumstances of the local community.”

The Howard Town Board agreed to send a copy of the resolution to the Chippewa County Board, state Senator Terry Moulton (23rd Senate District), Representative Tom Larson (67th Assembly District), Governor Scott Walker and Senator Tom Tiffany (R-Hazelhurst).