by CHRIS ROGERS
On Tuesday, the Winona County Board agreed to discuss banning new and expanded frac sand mines and handling facilities in rural areas of the county. In a campaign organized by the environmentalist and sustainable agriculture group Land Stewardship Project (LSP), hundreds of citizens have written, emailed, and called commissioners to urge them to ban the frac sand industry. In interviews this spring, commissioner Marie Kovecsi said the county should talk about the issue soon, commissioner Jim Pomeroy spoke positively of the proposal, and commissioners have listened quietly as dozens of citizens have spoken out at public meetings, but the County Board has not discussed it as a group. On Tuesday, commissioner Greg Olson broached a ban.
"I'd like to introduce a future agenda item and open the discussion of a frac sand ban," Olson said. "We've certainly heard from a number of constituents in various ways and I think it's time for us to have that discussion." He requested that the topic be placed on a future agenda and suggested that county staff use a model ordinance proposed by LSP as a starting point. Pomeroy seconded Olson's motion. Under County Board policy, two commissioners can place items on future agendas by making a request at a meeting.
It would require three commissioners' votes to ban frac sand. The County Board's urban commissioners — Pomeroy, Olson, and Kovecsi — all seem sympathetic to frac sand opponents, though they have declined to take a definitive stance on the issue yet. The County Board's two rural commissioners, Marcia Ward and Steve Jacob, both voted for the county's only industrial silica mine in 2012, and have supported regulating, but not banning, sand mining. '"I don't think a ban is appropriate," Ward said in an interview Tuesday. "I truly feel that between the regulations we have and the will of the community, I think we've already got a complete grip on this business not taking off and rolling over our county," Jacob said in an interview last week.
One thing might give sympathetic commissioners pause: getting the county sued. Frac sand decisions have gotten several local counties in Southeast Minnesota and Western Wisconsin sued, both by frac sand companies angry with the county for blocking mines, as happened in Trempealeau County, and by citizens angry with the county for allowing them, as happened in Winona and Houston counties. While some townships in other counties have banned frac sand mining without facing legal challenges, Winona County would be the first county to do so in the state. In an interview last month, Pomeroy said that he was still trying to gauge the legal risks before making a decision. Winona County Attorney Karin Sonneman has given somewhat mixed advice on the issue. On the one hand, she stated clearly in a written opinion that the County Board has the authority to ban large-scale industrial silica sand mining, but when asked in a subsequent interview whether a ban would survive a lawsuit from sand miners, Sonneman said, "A total ban would be difficult to uphold." Private lawyers engaged by LSP have argued that a ban would be defensible. The frac sand industry group the Minnesota Industrial Sand Council disagrees. Olson said that he is not worried about liability. "I don't think that's a real threat," he said of a lawsuit.
If the county were to adopt a ban, it would only apply to rural parts of the county. The county's zoning ordinance does not apply to cities such as Winona and Goodview, where several frac sand processing plants and shipping terminals receive sand from Wisconsin mines. The Winona City Council has supported an approach similar to the ordinance the county currently has in place: permitting frac sand operations on a case-by-case basis.
Jacob said that by pursuing a frac sand ban, LSP supporters were trying to impose regulations on rural land that most rural residents do not want.
In sand-rich Saratoga Township, the town board rejected a push to enact a township-level ban last year, and township officers from across the county helped author clauses in the county's latest comprehensive plan that support well-regulated mining.
Not every rural resident supports sand mining, though. On Tuesday, Wiscoy Township resident Joyce Ford presented the County Board with a resolution passed by a popular vote of residents at the township's annual meeting that calls for a county-wide ban. Also at the meeting, far western Winona County farmer Bob Christy raised concerns about frac sand and oil from fracking wells dominating rail, barge, and truck traffic and making it harder for farmers to get their crops to market.
LSP's campaign may have rallied hundreds of supporters, but there are tens of thousands of people in the county, Ward said. "There's been a vocal group, but it's not, in my opinion, a majority of constituents," she stated.
If the County Board pursues a ban, there will public hearings and opportunities for the public to make their voices heard, Olson said when asked whether ban supporters were representative of the majority of public opinion.
Jacob has said the County Board should let the voters decide whether to ban frac sand in a referendum. Sonneman advised the County Board that a frac sand ban cannot legally be decided through a ballot question. The Winona Post asked Sonneman about advisory referendums, non-binding referendums that are used essentially as a way to poll voters ahead of a binding decision by elected leaders. Sonneman responded, "I am not an expert on referendums one way or another, but, to me, an advisory referendum — if you don't have the power to have a referendum I don't know where you get the power to do an advisory referendum." Other Minnesota municipalities have used advisory referendums as a way to poll public opinion, however. In 2014, Spring Grove in Houston County asked voters for advice on whether to keep operating a city-run liquor store or to privatize it. Duluth used advisory referendums to poll voters on similar questions in 2008 and 2011: whether the city should allow liquor stores in a neighborhood where they had been banned, and whether the city should privatize its steam heating system, respectively. Old state laws also make reference to historical, local advisory referendums.
The commissioners did not specify when they want to discuss banning new frac sand operations, but Winona County Administrator Ken Fritz said he would plan to bring the item forward, not at the next meeting on April 24 at 7 p.m., but at the first meeting in May, on Tuesday, May 10, at 9 a.m. Fritz explained that the morning meeting would allow more time for discussion.