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Frac sand industry regulated in Winona, moratorium lingers (02/24/2013)
By Emily Buss

Despite the Winona City Council’s approval of a lengthy list of new city regulations designed to govern the silica sand industry in Winona, the one-year emergency moratorium has yet to expire.

A moratorium, by definition, is a legally authorized, temporary period of study which allows for legal challenge or resolution of a matter. As of Tuesday, the council, in a 4-3 spilt vote, approved the final ordinance, effectively resolving all issues raised during the year of study.

However, city attorney Chris Hood said because the council did not make a motion to repeal the moratorium early, it remains in effect until March 13.

“The moratorium is for one year,” Hood said. He cited section 5 of the city’s moratorium ordinance, which states, “this Ordinance shall expire, without further City Council action, one year from the effective date of this Ordinance following final passage by the City Council.”

On Tuesday, the council discussed the final recommendation relating to traffic impact analysis (TIA) and road wear agreements in an attempt to address citizen concern over added truck traffic once the moratorium ends.

At the last meeting, the council tabled a decision to vote on TIA language and asked assistant city planner Carlos Espinosa to find a more succinct way of dealing with concerns for added traffic. Espinosa brought back language that said all future operations that contribute more than 20 percent of traffic on any local street must submit a TIA.

“We’re not talking about city transit buses or refuse vehicles, we’re talking about semis that carry very heavy loads,” Espinosa said. Earlier in the study, heavy vehicles were described as weighing more than 33,000 pounds. “This amendment would have minimal impact because the analysis only applies to roads going from one operation to another.”

Espinosa added that the city engineer can waive a TIA if applicable, and the analysis would not stop an operation from functioning, it merely requires more information be submitted.

Council member Pam Eyden, who asked that the more specific ordinance be crafted, said she was in favor of the new language. Eyden also asked that planning staff look into amending the ordinance in the future to require all silica sand operations within city limits, regardless of size, to submit a TIA.

“This gives us an ordinance to work with for when the time comes that the moratorium runs out, but also we can come back with requirements for a TIA for all frac sand operations,” Eyden added.

A TIA can also still be triggered if the site plan or conditional use permit reveals that the operation anticipates generating more than 200 heavy commercial vehicle trips per day. Once a TIA is triggered, a road use agreement would also be imposed, requiring the operation to establish necessary financial accounts for future road upgrades and maintenance costs for the roads between an operation and a truck route.

“I support this amendment, even though it’s not where we want to be as a community, at least it’s a step in the right direction as the industry continues to develop,” council member Al Thurley said.

The year-long moratorium does not expire for another 17 days; however, Hood said “the adopted regulations fall within the city’s legal authority to protect and preserve the public health, safety and welfare.”

For a complete list of all changes made to city code per the moratorium study, visit the city website and choose Sand Moratorium Final Report.


Why no extension?

Throughout the year-long moratorium, concerned citizens and Winona city leaders have questioned the city attorney’s assertion that the moratorium cannot be extended. Despite the recent extension of moratoria in Wabasha County and the discussion about extension on the table in Red Wing, council member Gerry Krage questioned, yet again, why Winona’s moratorium cannot be extended.

“This industry, you have to admit, if it goes to plan, will have a phenomenal impact,” Krage said. “We’ve been advised that we cannot extend our moratorium. But, I’m curious as to why other jurisdictions have extended their moratoriums. What harm is being done to anybody to ask for 120 days?”

State statute allows a moratorium to be extended for an additional 120 days “following the receipt of the final approval or review by a federal, state, or metropolitan agency when the approval...has not been completed and received by the municipality at least 30 days before the” expiration of the moratorium.

Despite the fact that the council unanimously approved Tuesday a resolution of support for the establishment of state standards, Hood said that was not a strong enough case for extension.

“Without looking at those cases of cities that extended their moratorium, I couldn’t evaluate how they acted or whether they acted legally,” Hood said. “It is my legal opinion that you do not have grounds to extend this moratorium.”

As other cities and counties similar to Winona struggle to regulate a rapidly growing, controversial industry, Minnesota leaders have warmed to the idea of seeking a Generic Environmental Impact Statement and possible statewide moratorium. (See “Bill would tax sand, extend moratoria, fund GEIS” on page 1a for more details.)

With the final days of Winona’s emergency moratorium ticking away, Espinosa said he is confident that the ordinances crafted throughout the year-long study period will adequately regulate the industry without infringing on business. And come March 13, it will be business as usual.

“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,” Espinosa said. 


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