Midwest Environmental Advocates
Frac Sand Mining in Wisconsin:
Legal background for citizens and community groups
Sand mining in Western Wisconsin has exploded since 2009. The sand found along the Wisconsin stretch of the Mississippi has special qualities that make it especially valuable for hydraulic fracturing, a process of extracting natural gas from rock formations deep underground. Although the area has long hosted sand and gravel pits, the “frac sand” mines cover much more land and operate more intensively than traditional sand pits. The method miners use to extract the frac sand varies from strip mining that bulldozes vegetation and soil and scoops up the sand, to mines that operate primarily underground.
Many citizens and communities have many concerns about frac sand mining. Dust, traffic, and water are at the top of the list. Frac sand mines have the potential to emit large amounts of dust. This dust goes unregulated because it is “fugitive” or released incidentally as winds blow over open trucks and across the mine pit. Wisconsin’s frac sand is particularly valuable because the high silica content makes each grain hard and round, which is perfect for hydraulic fracturing. This concerns mining neighbors because silica dust is especially harmful to the respiratory system.
Traffic concerns center on the heavy sand‐hauling trucks that roll over country roads that weren’t built to withstand the increased usage. Communities feel less safe with the increased truck traffic and county budgets are strained by increased road repairs. More vehicles on the road and industrial air emissions threaten to degrade air quality.
Water contamination and water usage are also environmental concerns within communities where frac sand mines are locating. Frac sand mines can use thousands of gallons of water, and many more if they wash the sand, depleting local aquifers. The mining itself should steer clear of underground water reservoirs, but the filtering qualities of the sand and the risk of accidental contamination from mining operations – primarily from hydraulic fluid and diesel fuel leaks and spills ‐ raise community concerns. Many individuals also fear that mining operations will potentially affect the quality of their lakes and streams.
The opportunities for a community to influence the establishment of a frac sand mine center on the powers of local county, city and township governments. Concerned citizens should understand mineral deposit registration, zoning, and mining reclamation, and then choose a strategy that will work in their community. This information sheet provides background information on these topics.
Nonmetallic Deposit Registration1
State law allows any landowner with marketable nonmetallic mineral deposits to register their land. Before recording a deed notice in the county’s registrar of deeds office, the landowner must send notice and all information to the local zoning authority. Registration is intended to prevent future land uses, such as the erection of permanent structures that would interfere with obtaining the deposits. If the zoning authorities object to the registration, they must show that the deposit is not marketable or that mining is disallowed on the parcel through a zoning ordinance and do so within 60 days of receiving the notice of registration from the landowner. If the landowner succeeds in registering their property, then the zoning cannot be changed to prohibit mining on that parcel for 10 years. However, if during those 10 years the landowner does not proceed to develop the deposit, zoning changes will become effective the day the registration expires. Registration does not guarantee that the landowner will then be able to obtain all the necessary permits for the development and mining of the land. Deposit registration only preserves existing zoning.
Probably the most important and effective way to combat mining in your city, town, or village is the proper use of zoning ordinances. In Wisconsin, zoning power is given to counties, towns, cities, and villages. Since the zoning process is a legislative one, local communities are given a broad array of powers in order to protect the health, safety, and welfare of the people in their jurisdiction. Zoning ordinances generally consist of two main parts: a map of zones and a document describing the uses permitted in each zone.
According to Wisconsin’s comprehensive planning statute, when a local government establishes or changes its zoning code, the code must be consistent with the comprehensive plan.2 Although the statute does not require a comprehensive plan in and of itself, local governments may not be able to enforce zoning ordinances without one. Local governments that have no zoning yet are advised to adopt a comprehensive plan as well. The plan must be in place if the town decides to adopt zoning in the future, and the plan is a useful guide for government decision‐making. Because of the potential
1 Wisconsin Administrative Code, Chapter NR 135. Subchapter VI. Available at: http://legis.wisconsin.gov/rsb/code.htm
2 Wisconsin Statutes Section 66.1001 Available at: http://legis.wisconsin.gov/rsb/stats.html
implications of not having a plan, most local governments in Wisconsin have established a comprehensive plan.
Zoning and Mining
A zoning ordinance can effectively prevent or discourage mining in many different ways. First, a zoning ordinance can disallow mining in a certain zone altogether, provided that it is still part of an overall land use plan for the area. The ordinance could similarly designate specific zones where mining is permitted. A municipality could also amend their zoning ordinance to make mining a non‐conforming use. That way, mining operations could not expand or re‐open after a certain period of time of non‐use. Another option is for a municipality to create what is called a floating zone to address mining. A floating zone is particularly useful in situations where a community wants to permit a limited number of specific land uses but does not want to draw out the exact locations in advance. The municipality could also decide to allow mining by special use or conditional use permits only. To be considered as a conditional use the use must be listed in the zoning ordinance as such along with standards that must be met in order for the permit to be granted.
Town zoning is often the main source of confusion for citizens. If the county has adopted a zoning ordinance, towns may simply adopt the county zoning ordinance. Town boards hold the authority to approve the county zoning ordinance. All subsequent amendments that the county makes to a zoning ordinance must also be approved by the town board.
A town wishing to pass its own general zoning ordinance may do so in two ways. The first option applies only to towns located in counties that have not passed a county zoning ordinance.3 A town board wishing to zone may petition the county to adopt a county ordinance. If within one year, a county does not pass their own ordinance, a town may proceed to create their own zoning. The second option applies to towns located in counties that may or may not have their own zoning ordinance.4 Town electors, meaning any eligible voter in the town, may pass a resolution at an annual town meeting directing the town board to exercise village powers. The town board then considers and passes a town general zoning ordinance under procedures available to cities and villages. If the county does not have a zoning ordinance the process is now complete and the zoning ordinance is enforceable. On the other hand, if the county does have a zoning ordinance in place, two more steps must be taken. The town electors, once again by resolution, must approve the decision to have town zoning at the annual town meeting. The county board must then approve the zoning ordinance in order for it to be effective and enforceable. As noted above, all zoning must be adopted in accordance with the local government’s comprehensive plan.
3 Wisconsin Statutes Chapters 60.61(2) – 60.61(6) 4 Wisconsin Statutes Chapter 60.62
Cities, towns, and counties may not, at this point, pass an ordinance that regulates sand mines without also adopting zoning regulations. The story began when the town of Cooks Valley attempted to pass a town ordinance that required a proposed nonmetallic mine to apply for a permit, pay a permit fee, and hold a public hearing before opening a mining operation. Local residents who stood to benefit from the mines filed a lawsuit claiming that the ordinance was actually a zoning regulation and needed to be approved by the county. In June of 2011, the Wisconsin Court of Appeals agreed and ruled that the Cooks Valley mining ordinance was actually zoning and must follow the established procedures for a zoning ordinance.5 The town has appealed the case to the Wisconsin Supreme Court. If the Supreme Court decides to take the case they may overturn the Court of Appeals decision. If that were to happen, towns would be allowed to write an ordinance specific to nonmetallic mines only, rather than pass a zoning ordinance. In the meantime, Wisconsin cities, towns, and villages must use the zoning process to regulate nonmetallic mines.
Wisconsin law requires all nonmetallic mines to “reclaim” the mine site after operations cease. A proposed mine must have a reclamation permit approved by the state or local authority before they begin operations. The permit is issued after the mine operator submits an approved plan for post‐operations restoration, such as vegetation types and grades. The public may request an informational hearing on the reclamation plan. All counties are required to adopt a reclamation ordinance that complies with the statewide program. Cities, villages, and towns may also adopt their own mining reclamation ordinance as long as it is in compliance with the statewide program. Regardless of who administers the program, reclamation standards are uniform across the state.
A reclamation permit is entirely separate from zoning or an ordinance. Every nonmetallic mine must have a reclamation permit. But, the reclamation permit does nothing to regulate where a mine is placed or its impact on the community while it is in operation. It only regulates the post‐mining performance of the site. And, in communities without zoning, a mining reclamation plan offers the only public opportunity to participate in the mine’s establishment. The DNR has published guide to assist counties, cities, villages and towns implement a nonmetallic mining reclamation ordinance. The DNR guide suggests a model ordinance and provides contact information for DNR staff assistance. The guide is located online at this link: http://www.dnr.state.wi.us/org/aw/wm/publications/mining/intro‐modord.pdf
5 The Chippewa Herald, “Sand Mining Case Sent To High Court” June 29, 2011. Available at: http://chippewa.com/news/local/article_42d8fc0e-a264-11e0-bd32-001cc4c002e0.html
6 Wisconsin Statutes Chapter 295
What Can You Do?
Work to Pass a Zoning Ordinance
You can make your voice heard regarding frac sand mines in your community. Zoning grants your community the power to regulate land uses. Without zoning, your community may only participate in decisions relating to reclamation of the site after mining ceases. If your community does not have a zoning ordinance now, you can organize the community to pass a zoning ordinance. If your community also doesn’t have a comprehensive plan, organize to adopt a plan before adopting zoning.
Work to Change a Zoning Ordinance
If your community is already zoned, review the code to determine where nonmetallic mining is allowed. If you think the regulations don’t adequately protect the health and safety of your community, you can work to change the zoning. Zoning is changed in two ways. The map of zone districts may be redrawn or the code of permitted uses per zone may be rewritten. County or local zoning may be changed. Your city, town, or village ordinance may be easier to change than the county ordinance because county ordinances potentially impact many communities. At a minimum, notice must be issued and a hearing must be held. Check your local government’s website or call the zoning board to learn the local rules for rezoning.
Connect with Like‐minded Individuals
Other individuals and organizations in your area share your concerns. Working for change is easiest when you have a large group of committed citizens behind you. Midwest Environmental Advocates has a downloadable “Guide to Community Organizing” on our website at this link:http://www.midwestadvocates.org/media/publications/MEA%27SCitizen%27sGuideToC ommunityOrganizing.pdf
MEA has been contacted by several citizens across Western Wisconsin who are concerned with silica sand mines in their communities. Contact us firstname.lastname@example.org or 608‐251‐5047 ext 5 and we’ll put you in touch with others.
Conduct air monitoring near frac sand mines
Air monitoring provides valuable data on the risks to public safety posed by frac sand mines. If you can organize your community to conduct air monitoring, you will have a much stronger case when you argue for greater restrictions on frac sand mining. Silica dust, a known carcinogen, is potentially released from frac sand mines. A citizen in West Central Wisconsin has purchased and installed his own air monitor to track particulate levels. If you are interested, he describes his monitors on this site http://www.ccc‐wis.com/ under Laser Air Pollution Monitors.
Additional Resources and Organizations:
A professor at the University of Wisconsin‐ Eau Claire has produced a video on the health risks of silica exposure from sand mining.
Video Link: http://desi.uwec.edu/PIERCECH/Sand_Mining.asx
Text Link: http://people.uwec.edu/piercech/SilicaVideo1.doc
This guide to Wisconsin community planning contains a useful chapter on zoning: http://www.lic.wisc.edu/shapingdane/resources/planning/library/book/contents.htm The DNR has published a fact sheet on mining deposit registration available here: http://dnr.wi.gov/org/aw/wm/mining/nonmetallic/registration.htm
Concerned Citizens of Chippewa County has resources on its webpage:
A group of citizens in Barron County host an informative website:
Written by Rachel Armstrong and Brittney Vander Heiden. Midwest Environmental Advocates
*This document is presented with the understanding that Midwest Environmental Advocates does not render any legal or other professional service. Due to the rapidly changing nature of the law, information contained in this publication may become outdated. In no event will the authors or Midwest Environmental Advocates be liable for direct, indirect or consequential damages resulting from the use of this material.