More on the latest bad idea from Taconite Tom and his industry handlers 10.17.13

Hello, I'm forwarding an email from Ron Koshoshek about the latest bad idea from Tom Tiffany and his industry handlers.  Ron knows firsthand how important citizen voices have been in Wisconsin from his service on the Public Intervenor board. Ron has been working hard to protect public health and the environment from the ravages of under-regulated frac sand mining in western Wisconsin and shares his direct experience below.  Please consider forwarding this and other communications you're likely receiving and encourage everyone you know who will do something to call and write their state legislators and the governor's office.  Write letters to the editor of your local papers today. It's outrageous Tiffany would push a bill that changes our Wisconsin history of community-based government without any kind of statewide dialogue.  The reason to move fast is very few people of any political party would support taking away local authority so out of state companies can harm our health and natural heritage unfettered.  The good men and women of the DNR are not being allowed to do their jobs, so local governments have stepped in.  We all need to step up today to be heard.  Timing is critical so other legislators don't think this is a slam dunk.  Let's see if we can keep Tiffany from getting any co-sponsors!  Thanks, Kim

Hi all,

I have attached at the bottom of this analysis, a copy of the apparently innocuous  "Regulatory Certainty Act" which is really a bill abolishing local authority to regulate frac-sand mining operations through licensing under village powers and has the effect of preventing a town using zoning power from denying a conditional use permit because of the grandfathering provisions in the zoning laws and NR 135.  The bill will negate the efforts of hundreds of local citizens, throw away thousands of their personal dollars and hours of time spent to protect themselves and their neighbors from the potentially adverse impacts of this industry, and waste thousands of already spent Town taxpayer dollars that town government has spent in fulfilling their statutory duty to protect the health, safety and general welfare of the people in their towns.

The bill ( LRB-3146/1 and LRB-3408/1 ) will be brought before the Senate committee by Sen Tom Tiffany and the Asembly committee by Rep.Joan Balweg on Monday Oct 21.   In a rush job to get this passed, a hearing on the bill will be on Thursday Oct. 25th according to the latest information. Time and place is unknown to me or anyone that I know as yet.    However, if the bill cannot get enough sponsors, it will not get out of committee at all.    So between now and then call or email your local representatives and discourage them from sponsoring this bill.  Perhaps, sharing this analysis and commentary can help you with your persuasive arguments.

List serves have my permission to send this analysis out to members on their list.  Please end them all of it if you send them any of it.

---Ron Koshoshek

1. This bill will prohibit towns, villages, and cities, and even counties from regulating all land use activities of non-metallic mining operations  through licensing ordinances.   It will also invalidate all existing licensing ordinances.    The bill holds that the only way to regulate  non-metallic mining would be through zoning.  This bill would not prohibit the regulation of industrial frac sand mines, or sand and grave pits (commonly referred to as aggregate operations), but require that the land use regulation type activities could only be done through zoning,  and its conditional use permits.

                        I should point out that right now Frac-sand companies are exploiting the increasing conflict between the interests of some townships and the interests of municipalities, villages and cities and their residents.  Villages and cities and their residents receive some tax benefits, without believe that they have to suffer possible health risks, the certain loss of property values and certain town road damage with consequent property tax increases that will be unquesionnably suffered by residents of unzoned towns and counties who are entire unzoned or whose zoning is so weak that it provides no meaningful protections at all.   Municipalities such as cities and villages currently have no regulations of this industry at all.  So companies are trying to get under the jurisdiction of a city whenever a county zoning regulation is too restrictive. Currently, the industry is trying to create "balloon annexations" to municipalities that will allow them to escape regulation town licensing or county zoning. by a township or a county The annexation of the Preferred Sands site in the town of Preston in Trempleau County into the City of Blair is one example.  The second is Vista Sands' annexation proposal to the Glenwood City Council.  That seeks to get Vista out from under the zoning regulations of St Croix County.  Bill does nothing about these conflicts.   It dumps on the residents of junzoned townships and unzoned counties.
            This bill would eliminate all regulatory oversight in Crawford County since that county has no zoning at all, and in practice do the same in counties like Chippewa and Barron whose existing and or revised zoning ordinances are not even worth spitting at.
            Surely unzoned towns can become ether town zoned or county zoned.  But the likelihood of any doing that is very low and even if they do, zoning regulations involve grandfathering in of all existing land uses that fall under the type of land use to be regulated.  Some argue that a property can escape regulation even if it is only its mineral rights have been leased for non-metallic mining and the lease has been recorded with the Register for Deeds office.   That seems to me the main reason why companies are so willing to go along with zoning.  The prospecting has been virtually completed from a lease-holding standpoint.   The frac-sand boom is now the post-prospecting phase.  Most of the potential land has been identified and leased.   Now small leases are consolidated into very large holdings of 1000+ acres plus so that escapement of all county or town regulations through grandfathering is virtually final and complete.

2. It is not yet clear whether this bill may in fact limit the use of licensing ordinances for other types of operations (other than non-metallic mining)?  After all, every activities is a land use.   My Town has licensing ordinances for operating a dog kennel and ATV use on public roadways.     If a town is unzoned are these ordinances also invalidated?

3.  The bill also states that only the State can regulate for air quality, water quality and quantity, and related air and water issues.  It prohibits  local governments  from enacting any regulations over these matters (see page 10 of the bill for this language).

            In the opinion of the many legal experts that I have worked with over the past 5 years, including lawyers within DNR,  Towns do currently have the right through the exercise of their police powers to protect public health and general welfare through their licensing or zoning ordinances and that includes protecting the private well water supply and quality, taking measures to require air quality monitoring and remediation thru the exercise of their village powers.   Indeed, this view was confirmed by the Zweifelhoffer vs. Cooks Valley  by the Wis Supreme Court decision in Feb. 2012.
            Currently,  DNR's authority is NOT being used to protect off site impacts at all, and never will.   Even if it did so indirectly, there is nothing in the enforcement provisions of state regulations that requires a company who has violated state standards to replace a household's or business's contaminated private well or to provide a potable water supply if the water quality goes bad; or to drill a private well deeper if it goes dry; or to restore sediment deposits on private lands when a holding pond blows out, or to require remediation of bad indoor air quality by improved ventilation systems in a home or school or business.  Remediation of all these injuries requires a civil law suit against the company by the injured party.  However,  remedying the problem may cost less that the $30,000 minimum cost of a civil law suit.   Still though the private parties may save a few bucks,  they may also sxtil be out $10,000 to $25,000 to remediate the damage. Currently, by using their police power or town zoning powers to protect public health, safety and general welfare, towns are requiring remediation of adverse impacts on off site private properties and private well water within ½ mile of the mining operation.

            This bill has the effect of regarding residents in our townships across the whole state as simply "collateral damage" that is "necessary" for industry development and profits.

4.  The bill limits the local governments regarding agreements they make with companies for reimbursement of damages by highway users under these contracts. (see pages 12-14 of the bill draft for this language).

            This is a disaster for local taxpayers to start with.   But financial assurance for local road repair and reconstruction is also an especially sticky issue.   Currently most towns get no significant tax benefits.   My personal tax on a modest home pays 3 times more than a 153 acre EOG mine pays to the Town of Howard last year.   The only time there may be some tax benefit is if a town contains a "full operation" in the town.  Under tax law, anything that is categorized as manufacturing machinery is not taxable.  Only personal property is taxable.  Until a legitimate economic study is done by an independent qualified economist of the tax impacts both positive and negative not much is known about the economic benefits and costs on towns, other than what we know from the economic lessons of mining history.   It may take one or two years of development of the industry to get enough real economic data to make an assessment.

            Currently, we know that use of a town road (or even a county road) for 3 days nearly destroys the road for safe use by the citizenry.  These roads lack the width, depth of asphalt, and underlayment that can handle the effect of 100-500 trips per day of loaded 80.000 lb sand trucks.  The costs of road repair and reconstruction is prohibitive, given current tax revenues available to towns.  Towns do not have the power to tax machinery or equipment nor to create a severance tax under current law.   So, because of their duty to protect general welfare,  towns have been using the leverage they have, based on the tonnage limits on roads, to refuse a license to operate, unless companies assume the costs of road repair and reconstruction.
            Complicating this issue is the fact that the emergence of industrial agriculture involves the driving of enormously large equipment and trucks on town road.  Some of may match or exceed the weight of loaded frac sand trucks.   So far since towns have historically created this road infrastructure for the ag industry, and since these were used only during planting and harvesting seasons or during manure tank cleaning time, towns have borne  the full costs of repair and/or reconstruction.
            When state law defines non-metallikc mining as an agricultural activity, it is understandable that the frac industry is piqued to say the least at the "unfairness" of being singled out and required to pay the full costs of reconstruction and repair.   Moreover, the very tonnage limit that is being used for leverage on the frac sand industry is not similarly used as leverage to bring the large scale Ag Industry to the table for similar financial assurances.
            Some towns have been sensitive to this fairness issue and have tried to find a special method to determine the amount of financial assurance required.   This approach may lead to apportioning the costs to all heavyweight bearing road users in according with some formula.   However, the frac-sand industry folks are upset that some highway contracts provided set payments based on a per ton basis of operation.  These agreements use the per ton of production as a proxy for the effect of 100 trucks at 80,000 pounds per day running on the roads as a way to require the amount of financial assurance to be set aside.  It is not known how many towns were using the per ton payment, but when some begin using these payments for the town's other general operation, that is not authorized by the law.
             The industry wants the highway contracts to be solely based upon reimbursement for damage done by the user based upon the an engineering study and they will pay half of the costs.   Pay for the damage they do but no more.   That is a simple ethical idea, but it is impossible to directly measure the damage except perhaps by the expected tonnage over the road by all heavy traffickers.  But shame on the industry here.  Paying for half the cost under represents by a huge amount their actual contribution to road damage and reconstructive needs.
Besides, the studies of the engineering of the the roads for this weight bearing amount of traffice and the estimates of the actual costs have already been done by the Sate for Minnesota DOT.  Industry should not be ignorant of that but surely wants to exploit the ignorance of the legislature regarding that information.

5. The Wisconsin Transportation Builders have inserted a provision that relates to "borrow sites" use for state highway projects, which also limits state highway projects.  The key here is that even zoning could not regulate "borrow sites" for state highway projects.

6.  Those towns that have existing licensing ordinances regulating non-metallic mining ordinances would be invalid.  The town would have to have town zoning or be under county zoning to regulate non-metallic mining (both industrial frac sand and sand/gravel pits).

            The fact is that, even if a town is zoned, most existing zoning ordinances have not addressed the industrial frac sand mine issues and would need to be dramatically updated to include what the invalidated licensing ordinances had already included.  Moreover, because of grandfathering of registered lease holders and well as of owners registering their own land for future metallic mining, towns with their own zoning and counties would not have any right to rewrite their comprehensive plans and modify their own town zoning ordinances so as to provide reasons for denying a permit.   They would simply have to grant a permit no matter where it was located.   That makes nonsense out of zoning's basic purpose.

Ron Koshoshek