Group opposes Campbellsport sand mine
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Community Rights Based Information (Watch this video!)
Town of Stockholm Frac Sand Licensing Ordinance
Toolbox for Towns In WI Re: Frac Sand
All Meetings Must be Published
Midwest Environmental Advocates
Frac Sand Mining in Wisconsin:
Legal background for citizens and community groups
Background:
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.
Concerns:
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.
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Legal Opportunities:
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.
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
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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
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
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Mining Ordinances
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.
Reclamation Ordinances6
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
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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 atparalegal@midwestadvocates.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.
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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:
http://www.tunnelcitysandmine.org/
Written by Rachel Armstrong and Brittney Vander Heiden. Midwest Environmental Advocates
July, 2011.
*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.
Save The Hills Alliance 
Railroad and Corporate interests in Chippewa Falls, WI
The average citizen’s rights are being exploited by our government for Corporate interests. I live in a Chippewa Falls, WI, Wisconsin and my property borders Business Hwy 29, the major road connecting the City of CF and the Hwy 53 Freeway.
On Hwy 29 is the new CN Railroad Inter-modal facility: 50-75 Container trucks plus Coop Grain trucks go over this road each day, by summer they are hoping for 100+ trucks per day. This is in addition to the normal 1,000 vehicles per day, according to a City Survey.
http://www.prnewswire.com/news-releases/cns-newest-intermodal-terminal-opens-in-chippewa-f alls-wis-138663639.html
The road is being destroyed and so this Spring, the City is re-surfacing the pavement. To provide infrastructure for the Corporations, the City is charging local Residential residents on this road a Blacktop fee, which is unique to this City, of $19.25 per foot – my share is $3,100.
This situation is like the Sand mining issues in WI with their trucks creating dirt, noise and our taxes providing the infrastructure so they can profit. However, in this case, our tax funds are paying for it and in addition, the City is charging residents thousands of dollars to help out the poor Corporations like Wal-mart, Menard’s, the Canadian National Railroad, which pays no taxes and Costco container, the Chinese state-owned shipping company. Privatize the profits and socialize the expenses.
Discussions with the City have been fruitless, they think these fees are reasonable, I guess reasonable depends on which end of the stick you are on.
The issue, other than the illegal Assessment, is these Corporations come in and provide us with noise and dirt and get the Government to take money from the residents pay for the infrastructure.
Points
Legal Assessments
This is NOT a Legal Assessment. Property can only be assessed for value brought to it. Valid assessments are water mains or paving your alley, it is for your benefit. Re-surfacing an existing road bring no value, it is maintenance for the benefit of the General Public.
Wisconsin Circuit Court ruling – http://caselaw.findlaw.com/wi-court-of-appeals/1275731.html
If you live in Chippewa Falls and have been charged this $19.25 Blacktop Fee for Paving, you should question them, contact your Alderperson. It is your duty to question them, it is our money, not theirs. Benjamin Franklin said: “It is the first responsibility of every Citizen to question Authority.”
Yes, it is your money – the State of Wisconsin gets monies from Gas tax & License fees you paid in, they than allocate the funds to the municipality to be used for road work which benefits the general public. Normally.
No other WI community we found charges for re-surfacing, we checked with other Cities, Townships and Counties. A friend in Lake Hallie 5 miles away had his street re-surfaced and paid nothing. Why can this community maintain the roads using State funds in accodance with State law, and Chippewa Falls cannot. Maybe this blacktop fee is a revenue source for the City to improve the balance sheet. The City can use the State funds and this Fee to get the work done and still have funds for other purposes.
Appropriations of Taxpayer Funds
This highway was a State highway and was turned over to the City in 2005. The City received $1.1 Million in funding from the State to resurface the road at that time. These finds were used for other purposes. These funds plus accrued Interest is more than adequate to do this work now.
WHERE IS THE MONEY – we are told to let these corporations in, with all the destructive effects because they bring money to the community. So, where is the money? If these Railroads and their noisy trucks are bringing in so much to the community, why are we being asked to pave the road they are wearing out.
These actions are a betrayal of the Public Trust and your silence tells them it is ok and it isn’t. We pay in to the State and we assume our leaders use the money for the purpose intended, to charge local residents to make up the shortfall of diverted funds, is wrong.
If any of this bothers you – do something about it.
If you don’t like the Railroads blaring their horns in the middle of the night and the trucks tearing up your roads and being asked to pay for it – do something.
If you live in the City of Chippewa Falls and don’t like them charging you for street work you already paid for with your taxes, ask where the Corporate and State money is – do something.
Contact me for more info or to leave your comments, experiences, etc. Email or Call, I will return all calls and emails within 48 hours, if you don’t get response to Email, maybe it got in spam, try again, or call me. Thanks.
Dennis M.
Chippewa Falls, WI
d.meyers1@juno.com
715-828-5514
Superior Sands System of Canada is saying they don’t think they need a C.U.P. from the City of Wabasha because they will be on the railroad right of way. I need info. from anyone who has dealt with this. Thanks.!!!
Red Wing approves sand mine moratorium
Danielle Nordine – 09/28/2011
Hoping to “piggyback” on the coming local research on silica sand mines, Red Wing City Council unanimously approved a one-year sand mine moratorium Monday. Last month, the council voted to support Goodhue County’s moratorium, also adopted unanimously on Sept. 6. That moratorium applies to operations in Goodhue County but outside city jurisdictions. Now Red Wing decided to pass one of its own. “For all the reasons I supported the moratorium for the county, I support it for the city,” Council member Lisa Bayley said. The city’s moratorium is along the same vein as Goodhue County’s moratorium, preventing the issuance of a conditional-use permit for silica sand mining for up to a year. The city agreed it needed time to find out more about mining and examine its own rules and regulations. “In course of discussion … we determined our own city ordinances could be beefed up in this area also,” city Planning Director Brian Peterson said Monday. Peterson said the city has even less regulation on that type of operation that the county has. And there are a number of areas in Red Wing where sand mining could occur, he said. “There is potential for silica sand mining in the city,” Peterson said, adding that the city shares similar topography to the county and the Hay Creek area where Windsor Permian owns land and has been conducting test drilling for a mine. The county and city have received no applications for mining permits yet. Peterson said the city hopes to work with Goodhue and Wabasha counties on researching silica sand mines. Both counties have adopted one-year moratoriums, and Goodhue County has the option of extending its for up to another 12 months after September 2012. Goodhue County plans to establish a committee early next month on the topic. Members will study a variety of issues that could arise from a potential mine, including water and air quality, health effects, wear on area roads and bridges, economic and recreational impacts and the effect on tourism in the area. Peterson said he has talked with the county about Red Wing’s participation in the advisory committee, which will focus on many of the same concerns raised by the City Council. Within the city, the sustainability and planning commissions will head up the research efforts during the moratorium. Red Wing’s Planning Advisory Commission unanimously recommended the adoption of the moratorium. A second reading by the City Council is still needed. That likely will come in two weeks.
Signing Drilling Leases, and Now Having Regrets
By MIREYA NAVARRO
Published: September 22, 2011
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DRYDEN, N.Y. — Four years ago a man and a woman knocked on Katharine D. Dewart’s door, offering easy money for the use of her land.
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Guy Solimano for The New York Times
Richard Canfield, a farmer in Otisco, N.Y., wants to cancel a lease that would allow hydraulic fracturing on his land.
Drilling Down
By IAN URBINA
The Drilling Down series examines the risks of natural-gas drilling and efforts to regulate this rapidly growing industry.
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Guy Solimano for The New York Times
David Lee, center, of Skaneateles, N.Y., on Monday in Lafayette, where landowners heard how to fight hydraulic fracturing leases they had signed.
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Guy Solimano for The New York Times
Katharine D. Dewart, of Dryden, N.Y., said she regretted agreeing to allow the drilling process on her land.
The New York Times
Handing her a brochure that included serene before-and-after pictures, they explained that a natural gas company was seeking to drill somewhere on her 35 acres of wildflower fields surrounded by hemlock woods in this Tompkins County town near Ithaca.
Ms. Dewart, 68, served lemonade and signed, accepting $1,909 upfront and royalty payments of 12.5 percent of any sales of gas extracted from her property. “I assumed it’d be noisy for a couple of months, and I’d have a little extra cash and wouldn’t that be great,” Ms. Dewart, a writer, said.
Now, she said, she is stricken with remorse. And she is not alone. Hundreds of other state residents who signed leases allowing gas companies to drill deep into their properties with a method known as horizontal hydraulic fracturing have changed their minds and are trying to break or renegotiate their contracts. Millions of acres in upstate New York are under lease, awaiting permits for the drilling, which has yet to begin, delayed by a state environmental review.
Some landowners who have soured on the gas companies say they are not opposed to the drilling itself, also called hydrofracking. But, they say, they regret not having bargained harder and are seeking better deals. Then there are residents like Ms. Dewart, who said she did not realize what the lease would mean until the regional debate over the potential environmental risks of the process heated up in recent years.
Horizontal hydraulic fracturing involves shooting chemicals and high volumes of water into rock formations under enormous pressure to release natural gas. Environmentalists argue that it poses the risk of contaminating groundwater and deep aquifers and presents other hazards like air pollution from heavy truck traffic.
The gas companies counter that the drilling will bypass drinking water supplies completely and that it will be governed by strict state environmental regulations.
Among those who regret signing a lease is Ellen Harrison, a retired environmental scientist in Caroline, an adjacent town, who said she should have known better than to cede control of her 33 acres. She has formed a group called Fleased to fight the gas companies and help property owners get out of their leases.
“There’s a feeling of shame,” said Ms. Harrison, a former director of the Cornell Waste Management Institute in Ithaca. “How could I have been so stupid?”
Anxiety among some landowners has been growing as many five-year leases reach their expiration dates and some gas companies automatically extend them without the owners’ assent. The companies invoked force majeure, a legal term referring to an unforeseen event that prevents the two sides from fulfilling an agreement.
In this case, the unforeseen event was the state’s repeated delays in releasing the environmental regulations and permitting the work, the companies’ lawyers say. The state is now in the process of receiving public comments and finalizing the rules and expects to begin issuing drilling permits next year.
So far, at least 400 leaseholders have filed lawsuits against the gas companies. Other drilling opponents are holding “lease termination” meetings, banding together to seek help from state officials and campaigning for the passage of drilling bans like one approved by Dryden’s town board in August. (Dryden is in turn being sued by Anschutz Exploration Corporation, a Colorado driller with 22,200 acres under lease in the town.)
The New York attorney general’s office is working on an agreement involving one of the largest companies, Chesapeake Energy, and leaseholders numbering “in the hundreds” over letters invoking force majeure, said Dennis C. McCabe, the assistant state attorney general in charge of the Binghamton regional office.
Chesapeake’s general counsel and senior vice-president, Henry J. Hood, said the company is trying to work out a compromise that would allow it to keep the leases.
New York State itself felt the sting of force majeure when Chesapeake Energy notified the Department of Environmental Conservation, which oversees drilling, that it would extend leases on more than 15,000 acres of state land. A department spokeswoman said the agency was weighing a response.
Some property owners argue they were misled by representatives of gas companies who never uttered the words “hydraulic fracturing.” They worry that they could be held liable should a neighbor’s water be contaminated by the drilling, or that their property will become worthless or unsellable, or that the drilling industry could end their peaceful way of life.
Others want market value for their leases. Scott R. Kurkoski, a lawyer in Broome County who has filed 200 suits against Chesapeake Energy, said his clients were paid as little as $3 per acre with 12.5 percent royalty payments when they signed the original lease. Most of them are seeking to sign new deals at $5,000 to $6,000 an acre with 20 percent royalties, he said, which he said had been the going rate in states like Pennsylvania where hydrofracking is already taking place.
Mr. Hood said that at this point “there’s no way to value what these leases are worth.”
But many other landowners just want out.
“Most of the cases I deal with is people wanting to terminate the lease because they are against this type of drilling,” said Guy K. Krogh, a lawyer in Ithaca.
Thomas S. West, a lawyer who filed the lawsuit against Dryden’s town board on behalf of Anschutz, which has paid $4.7 million for its leases in the town, said that the discontent with the gas companies was confined to pockets of the state and that drilling was supported elsewhere. He also argues that state law pre-empts local governments from regulating natural gas exploration, with some exceptions.
As for landowners’ claims that they were deceived, Mr. West said a standard lease would not specify the type of drilling technique to be used, particularly in the case of hydrofracking, which became a viable extraction method only a few years ago.
“There was no duping,” he said. “They just don’t like the present-day circumstances, primarily because they’ve heard so much misinformation.”
At a meeting last week in Lafayette, near Syracuse, about 50 grim-faced leaseholders showed up with copies of their leases to seek advice from Joseph Heath, an antidrilling lawyer from Onondaga County, and to hear from a landowner who had successfully ended his lease.
Many said they feared large-scale industrial activity, spills, water contamination and noise.
About 100 miles away in Schoharie County, recent catastrophic flooding has stirred new worries that toxic chemicals used in hydrofracking and the wastewater could travel far.
Alfred Santillo, 67, a farmer in Sharon Springs, said that after he leased 324 acres to Alexco Oil and Gas for $40,000 in 2008, he promptly spent a chunk of the money on equipment repairs and drainage improvements.
During the recent rains, he said, the water stopped just short of breaching the road and his house and barn.
“It sort of held, but that was just luck,” he said. “What would happen is that the holding ponds would overflow and this toxic water would be all over the countryside. How would you contain it?”