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Albertville Valley sand mine could bump against federal mineral rights

By LeAnn R. Ralph

CHIPPEWA FALLS  —  The proposed Albertville Valley frac sand mine a few miles southeast of Colfax in the Town of Howard could have problems with federal mineral rights.

Lee Boland, a Town of Colfax resident whose property shares a ridge with the proposed sand mine, spoke about federal mineral rights at a public hearing for the 1,300-acre Albertville Valley sand mine’s proposed reclamation plan at the Chippewa County courthouse July 29.

The proposed frac sand mine would be owned by Northern Sands and operated by Red Flint Sand and Gravel.

The landowner list for the reclamation plan application is supposed to contain the names of all of the landowners, except that it does not list the federal government as being the owner of the mineral rights for the proposed Albertville Valley sand mine, Boland said.

Boland earned a master’s degree in civil engineering from UW-Madison and has been registered as a professional engineer for 50 years. He also is a professional land surveyor.

Land grant

On June 17, 1873, the United States of America granted 93,328 acres of land to the West Wisconsin Railroad Company to build a railroad from Tomah to the St. Croix River, Boland said.

“This is the Canadian National Railroad that runs through Fairchild and Augusta and through the Albertville Valley,” he said.

“We own 160 acres of that property, and we have tried for years to learn whether or not we own the mineral rights to that land because the railroad grant specifically excludes ‘all mineral lands should any such be found to exist,’” Boland said.

Boland said that over the years, he has had dozens of contacts with the Department of the Interior and the Bureau of Land Management.

“We know the railroad no longer owns those mineral rights, if they ever did, due to a ‘lapse of activity’ language in Wisconsin statute 706. However, no state statute trumps an act of Congress,” he said.

The latest letter from the Bureau of Land Management, dated June 12, 2015, states that “The Bureau of Land Management has not taken a position on fracking sand but it’s premature to say that it is not a mineral.’ This application (for reclamation) says not one word about mineral rights,” Boland said.

Part of the property in Phase I, all of Phase II and all of Phase III except for 80 acres was part of the 1873 railroad grant with the same exception regarding minerals, he said.

50 percent

“More than half of this proposed mine, including nearly all extraction areas, are under a serious cloud of title to mineral ownership,” Boland said.

BLM staff have indicated that the federal government never sells its mineral rights, and while it is not impossible to get a mineral extraction permit from the federal government, it normally takes ten or 20 years to get one, Boland said.

The United States government also would not be interested in $1 or $2 per ton for the frac sand, he said.

“They get 50 percent of earnings for the commonwealth treasury. In Wyoming alone this amounts to $50 billion annually, mostly from coal royalties. Does the federal government have any interest in frac sand? It may be well to understand that frac sand is several times as valuable as coal,” Boland said.

Since uncertainty exists about the federal government and the mineral rights for frac sand, “it would be prudent for Chippewa County to consider whether it wants to risk being a party to federal mineral trespass or theft of federal property,” Boland said.

“Positive proof of mineral title should be made a condition of any approval of this application,” he said.

In addition to much of the proposed Albertville Valley sand mine being located in the 1873 railroad land grant area, the S&S mine already operating in the Town of Howard also was part of the 1873 railroad land grant, Boland said.

1,300 acres

The Albertville Valley sand mine would cover 1,310 acres, of which 466 acres would be devoted to sand mining, 410 acres are agricultural cropland, 780 acres are wooded, and 120 acres are private residences, wetlands and open space, said Seth Ebel, a project engineer with Chippewa County Land Conservation and Forest Management.

The sand mine would be operated in three phases and would include a $50 million processing and transloading facility on 40 acres.

The proposed Albertville Valley mine drains to watersheds for Elk Creek and Eighteen Mile Creek, Ebel said.

Elk Creek drains to the Chippewa River and Eighteen Mile Creek drains to the Red Cedar River, he noted.

Surface water management in the mine area will include stream corridor and wetland setbacks and stormwater runoff. The mine will be internally drained and the stormwater will be re-infiltrated, Ebel said.

A groundwater monitoring well network will be set up to establish a water table map to determine the flow direction and gradient for the groundwater, he said.

For life

The reclamation permit, once it is granted, is for the life of the mine, although significant reclamation plan changes would require a new permit, Ebel said.

Chippewa County is in its sixth year of sand mine activity and has five active sand mines, said Dan Masterpole, Chippewa County conservationist.

Ebel’s job as a project engineer is exclusively devoted to sand mine permitting, reclamation and monitoring the sand mines, he said.

One person in the audience wondered how the cost of reclamation is covered.

The sand mine companies must provide financial assurance with a bond, a letter of credit, or money in an escrow account, Masterpole said, noting that some sites could cost millions of dollars to reclaim.

Another person in the audience wondered about the land conservation office issuing reclamation permits with no bonds from the company.

“We will issue permits with no bonds — but nobody moves earth without a bond,” Ebel said.

If the permit is issued but mining has not started, then there is no reclamation required. But once the company is in a position to actually start mining, then Chippewa County requires a bond before the company starts any mining activities, he said.

Prairie

Kathy Stahl, a Town of Colfax resident whose land also adjoins the proposed sand mine, is chair of Chippewa Savannas chapter of the Prairie Enthusiasts, a non-profit grassroots conservation organization.

The reclamation plan is not complete, Stahl said.

Part of the reclamation plan includes nearly 400 acres of restored native prairie.

Prairie health is fire dependent, and Stahl wondered what the plans would be for periodically burning the prairie that would be established.

Without fire, “it’s a field of weeds,” Stahl said.

She also wondered about the tree-planting plan in the reclamation plan.

The plan provided is based on Department of Transportation standards, Stahl said.

“The DOT builds roads, not prairies,” she said, noting that the reclamation plan should indicate that a prairie ecologist and a forester would be hired.

Northern Sands also indicated on the application that there were no endangered resources on the mine site, but private lands have not been surveyed for threatened and endangered species, Stahl said.

Only 5 percent of the state is included in an historical database, and Native American sites could be part of the mine site since Native Americans were known to have inhabited this area, she said.

Northern Sands also did not appropriately fill the bore holes for the proposed mine as per Town of Howard regulations and Department of Natural Resources regulations, Stahl said.

The company has received a notice of violation regarding the bore holes, she said.

Mark Leach, a professional ecologist who said he has written dozens of environmental plans and has a Ph.D.  in botany, said the reclamation plan does not contain any criteria for restoration success and does not say “plant this to restore habitat for this species.”

The company has not reported doing an inventory on threatened species but instead relies on the DNR’s database, but the DNR’s survey is incomplete because it does not include private lands, Leach said.

Leach said in his professional opinion, the reclamation plan fails to meet the standards in state statutes for reclamation plans and should be rejected.

Water table

Ron Koshoshek, a Town of Howard resident and the Howard Town Board’s mining consultant, said he was concerned about wetlands, surface waters and groundwater.

The reclamation plan is a conceptual plan that relies on “armchair engineering,” he said.

The plan needs more site-specific data for groundwater monitoring and needs more detailed analysis and design for stormwater and erosion control, he said.

Several people who spoke during the public hearing mentioned recent heavy rains and stormwater runoff they had observed and their concern about stormwater management in the Albertville Valley mine.

The reclamation plan says it will use Best Management Practices, but there are no specifics in the plan related to the high capacity wells, the conveyor system or the stockpiles, Koshoshek said.

Two watersheds are affected by the Albertville Valley mine, Elk Creek and Eighteen Mile Creek, and the reclamation plan seems to assume that groundwater flows to the same watershed as the streams, he said.

That is often not the case, Koshoshek said.

For the EOG Resources S&S sand mine on county Highway B in the Town of Howard, the company’s plans indicated that groundwater was 25 to 30 feet lower than where the groundwater actually is, he said.

Sand mines are allowed to operate within ten feet of the groundwater in Chippewa County.

The mining plan projected 33 million tons of frac sand, but because the groundwater is closer to the surface than anticipated, the projection for the EOG Resources mine has been reduced to 13 to 15 million tons, Koshoshek noted.

Koshoshek said he would not recommend approving the Albertville Valley mine until the groundwater flow has been established as well as the depth to the groundwater.

Other concerns

Other concerns expressed by the people who testified at the public hearing included intermittent mining and that it should be addressed in the reclamation plan, landowners signing a certification of the reclamation plan (if the mining companies do not reclaim the land, then it is the landowners’ responsibility), and how does the Albertville Valley mine fit in with the Town of Howard’s comprehensive land use plan.

According to state law, post-mining land use must be consistent with the local land use plan, said one woman.

The site for the processing and transloading facility would be a commercial use, but the Town of Howard’s land use plan does not identify the area for commercial use, she said.

Several people mentioned that existing sand mines are currently laying off workers and that intermittent mining is not addressed in the Northern Sands reclamation plan.

According to Wisconsin administrative code NR135.14: “Intermittent mining may be conducted provided that the possibility of intermittent cessation of operations is addressed in an operator’s reclamation permit, no environmental pollution or erosion of sediments is occurring, and financial assurance for reclamation pursuant to NR135.40 is maintained covering all remaining portions of the site that have been affected by nonmetallic mining and that have not been reclaimed.”

Chippewa County Land Conservation is accepting written testimony about the Albertville Valley mine reclamation plan until 4:30 p.m. August 5.

The testimony must be postmarked by August 5 or e-mailed or delivered to the land conservation office by 4:30 that day, Ebel said.

Chippewa County Land Conservation and Forest Management will compile the testimony and respond to it, he said.

The land conservation office will have 60 days after the public hearing to make a decision about the permit. The options include “approve,” “deny” or “approve with conditions,” Ebel said.