Tommy Washbush
On a cold January night, in a drafty 1850s-era town hall in Vernon County, I sat on a pew facing my town board. For several months I'd noticed "frac sand mining" on the meeting agenda posted at the town dump. Finally, I'd come to find out what local officials were discussing.
I was aware of Wisconsin's frac sand mining boom. The number of permitted or operational mines and processing facilities rose from 10 in 2010 to 130 this year. Nearly 100 more mines and facilities are proposed or under development.
Wisconsin's sand, with its hard and uniformly rounded grains, is used in the hydraulic fracturing, or fracking, process. Injected into fissures that drilling companies blast into the shale in places like North Dakota and Pennsylvania, the sand helps hold open those cracks so that oil or natural gas can flow easily to the wellhead.
Gov. Scott Walker has lauded the recent sand mining rush as a promising source for new jobs. Meanwhile, those who live near the mines protest the noise, lights, truck and rail traffic, and the fine silica dust that coats their windows and decks and the clothes they hang outside to dry. They worry that the dust is coating their lungs, too, and potentially leading to lung disease.
The state's Department of Natural Resources, charged with regulating air and water quality, has admitted that it lacks the staff and resources to adequately oversee the frac sand operations. Additionally, the agency holds no power to limit noise, lights, traffic or a mine's hours. Nor do federal agencies that regulate other aspects of mines. As frac sand facilities have proliferated, so have local ordinances meant to control their effects.
I didn't think the boom would touch Vernon County. I said to a friend, "We don't have frac sand here, do we?" She said, "Oh yes, you do. Look at the map."
On geological survey maps, the world's best frac sand stands out as a brown swipe down the western third of the state. Counties to my north appear to be nothing but frac sand. Vernon County's coverage is sparser. Here, the colored areas are lobed like giant oak leaves, their veins following creeks and rivers. Beneath our steep bluffs and fertile valleys lies a bounty of sand. Zooming in on the town of Liberty on a map of Wisconsin's sand deposits reveals that my entire 200-plus-acre parcel is minable for frac sand.
Still, my neighbor and town supervisor Adrian Amelse believes it's unlikely that industrial sand operations would want to locate in our area. The hills, the curvy roads and the lack of railroad spurs prevent easy transportation. "But," he told me, "you never know. In light of that fact, we said, 'Let's be proactive. Let's put in some protections for our community.'"
Being an unzoned town in a county without land-use planning makes us especially vulnerable. Historically, frac sand mining companies have targeted such areas. By some estimates, one-third of Wisconsin's mines set up in "zoning-free" locations. In case an industrial sand operation came prospecting, my town board passed a nonmetallic mining ordinance last fall. It was the county's only unzoned town to do so.
During the January meeting that I attended, the board was also considering a resolution to oppose a state Senate bill intended to strip local governments of their ability to regulate most aspects of industrial sand mining operations. SB 349 would have invalidated my town's ordinance. After Sen. Tom Tiffany (R"Hazelhurst) introduced the bill last October, opposition erupted immediately. Local officials who had worked hard to craft permitting regulations tailored to their communities resented the state's attempt to usurp their control.
The Wisconsin Towns Association (WTA), which has been educating town boards on the frac sand industry since 2011, also spoke out against the proposed legislation. Rick Stadelman, the association's executive director, wrote, "Clearly, this bill was drafted for...all the nonmetallic mining interests, including industrial sand mining operations." He urged towns to challenge the bill. He provided a template for a resolution to register opposition with elected officials. About 350 towns, including mine, passed that resolution. In the end, several Republican legislators, under pressure from their constituents, withheld their support for SB 349. That bill died, but the question of state vs. local control of frac sand mining did not.
While Republican legislators began retooling their proposal, farmers, hunters, environmentalists and small business owners across western Wisconsin united in a rare coalition to oppose constraints on local frac sand mining oversight. That coalition's resistance has proven stronger and more persistent than opposition mounted against the Legislature's other recent efforts to limit local power.
The rules of the game
Tiffany came back with revised legislation in February -- he calls SB 632 an "offshoot" of SB 349. Many of the provisions in SB 349 that alarmed local officials are absent from the newer bill. It doesn't stop municipalities from enacting ordinances to restrict future frac sand mines. It doesn't prohibit these ordinances from addressing air and water quality or road agreements with companies trucking away the sand. But the latest bill stipulates, among other things, that local ordinances may not impose new restrictions on mines that are currently permitted or operational.
The reduced scope didn't comfort town officials in western Wisconsin. At a seven-hour hearing on March 3, while the bill's sponsors underscored its narrow effects and mining representatives insisted on the need for stable regulation, many people spoke out against SB 632 and its companion bill in the Assembly, AB 816.
Among the opponents was WTA's Stadelman. He had met with Tiffany five times in an attempt to make the bill acceptable to local officials, and he initially weighed in as neutral. But he changed his position on the morning of the hearing, after several of his group's members challenged his intention and his board voted unanimously to oppose the bill.
On the morning after the hearing, I met with Tiffany at his office. He believes that the WTA "was getting feedback from members, especially in western Wisconsin, that were largely a reflexive reaction, just saying, 'No, we can't do this.'"
Tiffany thinks they misunderstood the bill. "It's simply a grandfathering. It takes the diminishing assets rule as it applies to zoning, we codify it and put it into law and apply it to ordinances." The bill, he says, would protect existing businesses and their assets by not allowing a municipality to "change the rules of the game in the middle of the game."
On March 5, SB 632 was approved by the committee that oversees mining issues, with Republicans voting in favor and Democrats against. Tiffany told me he would make every effort to bring the bill to a full vote before the legislative session ends the first week of April.
If the bill passes, any local limits -- or lack of limits --on existing frac sand mining operations would be frozen in place. Even if new information about health or safety risks leads to a consensus on better regulations, towns would have no power to further restrict those operations.
Tiffany agreed this is true, "in a legal sense." However, he pointed out, "[Towns do have power] in a public relations sense.
"People sometimes believe that these companies are simply callous, that they're not going to respond to public input," he said. "That is rarely, rarely the case. They oftentimes share local connections, local employees, and those local employees want to do right by their neighbors. [Concerned citizens should] go see them and then express the concerns and then try to find a resolution to those concerns."
"So, if my town lacks zoning or our ordinances are weak and a sand mine is already underway, then we're leaving the public's health and safety to the goodwill of the mining company?" I asked.
"If you are in that situation, yes."
Right to regulate
Rick Stadelman and town officials I interviewed were quick to say they do not oppose frac sand mining. They simply believe that municipalities should have the right to permit and regulate nonmetallic mines in their jurisdictions. In fact, the vast majority of western Wisconsin's town and county ordinances do not impose unreasonable conditions. They are not designed to prevent a business from establishing an industrial sand mine.
A prototype for local ordinances is the one adopted by the town of Cooks Valley in Chippewa County in 2008. It's the document that my town supervisors copied. It requires applicants to pay a $500 permit fee. The 12-page application requests information about, for example, the mine's location, depth and acreage, its plans for water use, brush and topsoil removal, building structures, use of explosives, dust control techniques, transportation and land reclamation.
Once submitted, an application is shared with adjoining property owners. A public hearing is scheduled. The town may approve the mine with conditions that relate to the health and safety of its residents. For example, it may restrict operating hours and trucking routes. And it may consider the safety record and financial stability of the mining company in its decision.
The Cooks Valley ordinance was one of the first of its kind in Wisconsin. It was challenged by frac sand mining interests and struck down by a circuit court in 2010. In 2012, the state Supreme Court overturned the lower court's decision. Justices declared that towns have a right to use ordinances to regulate health and safety through their police powers. Because Cooks Valley's ordinance was upheld, it serves as a model for many towns -- especially those, like mine, that lack funds to hire their own attorneys.
Some ordinances go farther than Cooks Valley's. For example, they might require a mining company to monitor air and water quality, compensate neighbors for lost property values, or avoid trucking sand along school bus routes. In cases of noncompliance, a stricter ordinance might impose exorbitant fines or terminate a permit immediately. The industrial sand industry regards such extensive regulations as, effectively, bans on mining.
Municipalities have to be careful, one town's lawyer told me. By stretching their police powers far beyond provisions in the Cooks Valley ordinance, they might be inviting lawsuits.
Wisconsin Towns Association has offered its members sample ordinances to copy. Thanks to the organization's communication and resource sharing, Tiffany believes, all towns that want an ordinance have already enacted one.
"Is there a town supervisor in western Wisconsin that does not know about sand mining? It doesn't exist," he said. "There's still some unzoned towns, some towns that have not passed ordinances. That is a choice they're making.... And they may be making that choice for the very reason that they're like, 'We welcome sand mining. And we want to live in an unzoned [community].' Being unzoned is also a choice."
Independent spirit
Many Wisconsin towns do choose to remain unzoned. When I moved to the town of Liberty nine years ago, seduced by the beauty of the landscape, the idea that people could do virtually anything on their property baffled me.
Hog farm, brewery, hotel, quarry -- from a local standpoint, each was equally possible. Soon I witnessed the pride people took in their independent spirit. "Our town has always been on the rebellious and aggressive side," one neighbor told me. He's the one who showed up at every town meeting last year to argue for action on the frac sand mining issue.
The chair of a nearby town told me, "People don't like people saying what you can and can't do with your land." But even as his board has rejected zoning, they, too, are working on a frac sand mining ordinance. Part of the independent spirit is not wanting to cede local control to the state.
Here on the south edge of the sand mining boom, a handful of towns share that unzoned, ordinance-free status. Some have not yet finalized their regulations. Some are functioning under temporary moratoriums while they research options, question experts and hold public hearings. Officials in Vernon County and Richland County, to our east, have been studying the experiences of communities to the north. They might have assumed they had more time to develop their own policies. If SB 632 passes, however, a town that lacks ordinances and zoning would have no legal ability to limit the terms of a mine that has already registered to do business there.
Tiffany assured me that there are town officials who stand by SB 632. "They keep their heads down," he said. "They're just not that vocal."
When asked about this, Rick Stadelman said, "I don't know of any town board member who supports SB 632. If one came out and said we should support SB 632, I'd ask him if he had any current or potential financial interest in a mine."
SB 632 is not as straightforward as its predecessor. Local officials have told me they found it "complicated" and "convoluted." One provision would bar any municipality from preventing mineral extraction on a property whose minerals had already been registered. Mineral registration is a trivial process compared with applying to develop a sand mine. But SB 632 would grandfather such lands just as it does existing mines.
The word "prevent" has also sparked debate. Under what circumstances is a municipality preventing mineral extraction? Mining companies that find an ordinance too prohibitive might use this clause to sue for their right to do business.
Also, the bill would appear to invalidate any nonmetallic mining ordinance that combines rules about mines with rules about transportation, processing or storage of sand. Included in that category are the Cooks Valley agreement and all ordinances modeled after it.
Sen. Kathleen Vinehout (D-Alma), whose district includes a number of frac sand mines, warns of SB 632's ambiguity. "The combination of freezing in place rules affecting existing sand mines and invalidating most local ordinances will throw sand mine regulation into legal chaos. The bill creates a huge legal gray area on exactly which ordinance the sand mines would have to follow -- the one made invalid by the bill or the new one rewritten to comply with the bill, or none at all."
Preempting local control
Tiffany's bills belong in the category of preemptive legislation. Through such laws, the state nullifies or constrains a lower-level government's power. In the past two decades Wisconsin has applied preemptive policies to pesticide application, gun control, livestock siting and wind turbine siting, among other things.
Lawmakers who defend preemption argue that businesses are unfairly burdened by the "patchwork of regulation" that results from ordinances and zoning restrictions that vary from town to town. They might also claim, as they have with frac sand mining, that small towns and villages are ill equipped to navigate the complexities of regulating global companies. Those companies are often involved in drafting preemptive legislation.
None of Wisconsin's past attempts at preemption have met with such broad-based opposition as the nonmetallic mining bills. Tom Pearson, a UW-Stout anthropologist who studies community responses to the frac sand mining rush, told me, "No one would attend town meetings before, but when sand mines come up, it's galvanizing. Hundreds of people show up."
Pearson has sat in on numerous meetings in areas affected by the mines. He has watched tensions arise between neighbors and family members. "People are feeling a sense of social trauma from this," he said. "They distrust each other and elected officials. They wonder whether their neighbor has signed a contract [with a mining company]."
Pearson speculates that frac sand mining might be more divisive than livestock siting or wind turbine siting because giant barns and windmills don't clash with Wisconsinites' perception of the agrarian landscape. They can coexist. By contrast, "Mining creates a disruption that people react very viscerally to." Severed and scarred hills become symbols of a changing economy and a lost way of life. Losing local control over such a disruption is doubly threatening.
Attorney Glenn Stoddard, who drafted the Cooks Valley nonmetallic mining ordinance, points out a few more differences. Large-scale livestock and wind farms did not proliferate at the rate that industrial sand mines have. And, unlike other preemptive bills, SB 632 does not provide for updated state oversight. When the state took control of wind turbine siting, it required the Public Service Commission to write rules and set baseline regulation for wind turbines. When it removed local control of siting large-scale livestock operations, it created a livestock siting board to invite public comment and review the rules periodically.
The bills sponsored by Tiffany offer no plan for specifically regulating industrial sand mining. Instead, if SB 632 became law, the DNR would continue to rely on 20-year-old policies designed to regulate small sand and gravel pits -- the type where towns or counties get sand to put on snowy roads.
For the benefit of a few
In the first week of March Tiffany said he didn't know if his bill would pass. Now, with the Senate's floor period soon coming to a close, chances for the frac sand mining bill to make it to a full vote are slim.
Undoubtedly, the Wisconsin Towns Association's stance was critical. The organization carries a lot of clout, especially with rural legislators. At least one senator vowed, "If Rick Stadelman is okay with it, I will be." If not, the senator said, he would vote against it.
My local officials haven't changed their views on local control since SB 632 was made public. I saw them last week at our town of Liberty board meeting. Frac sand mining wasn't on the agenda -- this month, they were struggling to figure out how to pay for fire services, a new computer for the town clerk, a well, and a host of repairs to our 18-year-old snowplow truck -- but I talked with a few board members individually.
Wanda Lewison is the town supervisor who raised the idea of a nonmetallic mining ordinance over a year ago. Throughout 2013, she worked to educate the board and "get people thinking about the damage frac sand mining could do." She said of the revised bill, "Just like the last one, it's only going to benefit the very few."
Supervisor Amelse, who is a Republican, also reviewed SB 632 and opposes it. He said, "I'm skeptical of what [Tiffany] is doing. It's pretty hypocritical of the GOP to try to remove local control."
