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How long can a frac sand moratorium last (01/23/2013)
By Emily Buss

The debate over silica sand mining in Southeast Minnesota has heated up in the last two years, causing many cities and counties to enact emergency moratoria on the industry.

Frac sand activists have urged Minnesota Governor Mark Dayton and other top lawmakers to investigate the possibility of a statewide generic environmental impact statement, and even a statewide three-year moratorium. However, despite added pressure at the state level, it is Minnesota statute that dictates how long the industry might be held back through the use of a moratorium. State statues for both cities and counties allow for moratoria to be imposed for up to two years, and no more.

How does a

moratorium work?

By definition, a moratorium is a temporary, legally authorized period of suspension of action to allow either a study or legal challenge to be carried out. With the silica sand industry targeting the Jordan sandstone-rich land across much of Southeast Minnesota, moratoria have been preventing new silica sand mines from being developed.

In early March 2012, former Winona Mayor Jerry Miller called city council members together for an emergency meeting, and the council unanimously passed language that immediately prohibited any new silica sand operations in the city from being developed.

The city of Winona, along with several other counties in the area, studied the sand industry during its one-year emergency moratorium in an attempt to address citizen concerns and, more importantly, develop regulations for the industry.

The interim zoning ordinance—or moratorium— defined by Minnesota statute states that counties and cities conducting studies “in order to protect the public health, safety, and general welfare” are allowed to adopt a temporary moratorium “as an emergency measure.”

The statute continues to say that the temporary moratorium may “regulate, restrict, or prohibit any use, development, or subdivision within the jurisdiction” for up to one year.

However, the League of Minnesota Cities (LMC) explains that under limited circumstances a moratorium may be extended.

According to the LMC, if a city holds a public hearing and determines that additional time is needed, an extension from 120 days up to one year can be granted. A moratorium may be extended if the city needs more time to complete a process required by state statute, federal law, or court order, or if final approval is needed from a federal, state, or metropolitan agency.

In most cases, moratoria give city officials the necessary time to take appropriate steps to understand a process more thoroughly. However, interim ordinances should be enacted using caution because the use of a moratorium to regulate private development has prompted past litigation in two northern Minnesota cities.

For counties, moratoria may be imposed for one year under statute 394.34, and may be extended for a second year.

What is next?

As Winona city officials grappled with an uncertain future regarding the silica sand industry, the city planning department has been formulating a plan that will allow the industry operate efficiently, while being carefully regulated.

Assistant City Planner Carlos Espinosa has spearheaded study efforts during the one-year moratorium, and directed city planning commissioners in creating recommendations that he said both address citizen concerns and allow business to function.

“The whole time we were striving for that balance and I think our recommendations are the best attempt at that,” Espinosa said. “I think they are a great set of recommendations.”

After this issue went to press, the Winona City Council held a public hearing to discuss four action items in the 38-page draft of recommendations produced by the planning commission, which outlines potential regulations for the frac sand industry.

The public hearing, Espinosa said, is a chance for council members to “tweak some things if they want.” He added that if the council approves the final draft of recommendations, it will go to a consent agenda at the next meeting, where he said it would most likely be passed without opposition.

Unless council members find overwhelming evidence that additional study time is needed once the moratorium expires, Espinosa said, “We will then begin taking applications for new or expanded sand operations within the city, and we will process those applications in accordance with the new regulations that were adopted.”  


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