County considers frac, kennel bans


(6/13/2016)

by SARAH SQUIRES

A potential frac sand ban and a moratorium on new large-scale dog breeding operations — among the most contentious issues faced in Winona County in recent years — are on the agenda for the board's meeting on Tuesday.

Commissioners are expected to discuss a possible ban on frac sand mining and processing facilities along with considering a temporary ban on new large-scale dog breeding facilities while it conducts a study on how dog breeders may impact the health, safety, and welfare of county residents.

'Puppy mill Capitol of Minnesota'


This past winter, six Amish men sought county permits for dog breeding kennels, which were approved by the board with a split vote. County leaders were bombarded with emails and phone calls from animal welfare activists from across the state, and protestors flocked to the facilities they'd labeled "puppy mills." Some called on the board to disallow them entirely, labeling Winona County the "puppy mill Capitol of Minnesota."

Most of the kennels have around 40 adult dogs; LeRoy Yoder, one of last winter's permit applicants, has 170.

State and federal laws govern the treatment of dogs at such breeding facilities, which are also subject to inspections by the Minnesota Board of Animal Health and U.S. Department of Agriculture and Winona County. Some problems have been identified by USDA inspectors in the past at the kennels, which have since been corrected but drew sharp criticism from animal welfare advocates during the permitting process. A Lewiston veterinarian who regularly visits the kennels spoke to the health of the animals.

County Board members were advised that the county didn't have the legal authority to regulate animal welfare, because state and federal agencies are charged with that duty. However, County Board members Greg Olson and Marie Kovecsi brought forward a proposal to discuss changes to the county's ordinance on dog kennels, including examining whether the county had the power to ban them.

County Attorney Karin Sonneman advised the board that jurisdiction over licensing and inspecting such commercial dog breeding facilities falls under the duties of the USDA and state of Minnesota, not the county, but said that the county did have the ability to enact a moratorium — or temporary ban on new facilities — while it studied the provisions within its own zoning ordinance. The board will consider such a temporary ban at its meeting on Tuesday, June 14, at 9 a.m.

Frac sand ban


In another split vote in April, the County Board voted to pursue a permanent ban on new frac sand mining and processing operations, following a long campaign for such a ban and debate about whether it would be defensible in the event of a lawsuit by prospective miners.

The Land Stewardship Project has led efforts to enact a ban on frac sand operations in the county, and produced a draft ordinance that would include the ban within the county's zoning ordinance. Proponents of a ban argue it would protect the health and safety of residents and the environment, while those against the prohibition argue the county would open itself up to lawsuits if it banned mining a product based on its end use. Under both the LSP's proposed ban and a new draft compiled by Sonneman, only sand used for industrial fracking purposes — not sand harvested for uses such as dairy bedding or construction — would be prohibited.

In a legal opinion prepared for the board's Tuesday discussion, Sonneman wrote that LSP's proposal was "minimally viable," because legally, the county must provide a very clear, "rational basis" for the ban that is connected to the objectives contained within the county's comprehensive land use ordinance.

Using Florence Township, Goodhue County, as an example of a municipality with a more concise ban language, Sonneman noted its ordinance declares that "industrial minerals mining land use operations are larger-scaled industrial, consume more appropriated water, require more concentrated heavy truck hauling traffic to single destinations, and embrace other differences than the mining of construction materials."

A viable ordinance, Sonneman noted, must more clearly be tied to the goals of the county's comprehensive land use plan. Among them are: "protecting the public health, safety, order, convenience and general welfare; protecting and preserving agriculture; conserving the natural and scenic beauty of the county; conserving natural resources in the county such as streams, wetlands, groundwater, recharging areas, bluffs, steep slopes, woodlands and soils; and minimizing pollution."

Sonneman's proposed zoning ordinance amendment ban language would present distinct definitions for both "construction minerals" and "industrial minerals" in order to ban the extraction and processing of sand meant for the hydraulic fracturing industry as opposed to sand mined for construction such as that which is used for local highways.

The "purpose" section of Sonneman's draft language notes the comprehensive plan's reference to the protection of ag land and water resources. "This section on excavation, extraction pits, and mining is to protect agricultural land and farming activity; protect existing recreational and tourism businesses; protect residents' health, safety and general welfare; prevent the industrialization of agricultural, open space and residential communities; minimize road and bridge damage from high volume and heavy truck traffic hauling industrial minerals; and minimize land use conflicts."

If the board votes to pursue the ban language, the draft zone ordinance change would be forwarded to the Planning Commission for consideration. Commissioners would vote on a recommendation for the County Board, which would ultimately have the final say over whether to adopt the ban.

 

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