Bill would end local 'police powers,' not municipal zoning
A Wisconsin bill authored by Senator Thomas Tiffany (R - Hazelhurst) would require environmental regulations for frac sand mines to be administered by state agencies and not local governments, and would remove the ability of municipalities to use "police powers" to dictate land use rules for mines already in operation.
Some media reports have clouded the issue of how the bill would affect local governments. The bill would not undermine municipalities' ability to regulate mines using zoning regulations; instead, it would prohibit local governments from using police powers — which are allowed to be applied upon mines that have already been permitted. The proposed legislation would not prohibit the ability of local governments to impose fees for heavy road use by trucks serving mines, but would not allow them to require upfront fees based on damage estimates. The bill would also prohibit local governments from enacting their own air and water monitoring standards or blasting regulations (aside from restricting hours blasting could occur at mine sites). Air and water quality, as well as blasting provisions, are already regulated by state agencies, which have the resources to do so, said Tiffany in an interview with the Winona Post last week.
Western Wisconsin is one of the nation's biggest suppliers of "frac" sand, in demand for the hydraulic fracturing industry in which the sand is used to help harvest oil and natural gas contained in underground shale rock formations. The swell in demand for the commodity has gained support by some who say the industry provides a needed boost to local economies. However, the frac sand mining industry has also produced passionate opponents who fear mines and the semi trucks they use could damage the environment, pollute water, and produce dust and diesel fumes that could be a threat to public health.
Tiffany said that currently, local regulations for the sand mining industry can vary from town to town and county to county, producing confusion for mine operators and hindering investments. Currently, a mine that is permitted using a zoning permit process, the operation is "grandfathered in" if zoning requirements are changed later. But Tiffany said that some municipalities are using police powers as a way to change regulations for existing mines, since police powers, unlike zoning regulations, can be applied retroactively. "We're trying to stop this regulatory creep from happening before they go too far [and] start to harm the economy in Western Wisconsin," Tiffany said.
Senator Kathleen Vinehout, (D - Alma), who has pushed legislation in the past that would strengthen regulations for the sand mining industry, spoke out against the new bill last week. "Senator Tiffany's bill takes away people's ability to protect against a health threat or an extreme nuisance," she said. "If mining companies can't convince their neighbors that [sand mining] is a good thing, why should Madison politicians get involved?"
Tiffany defended his legislation, saying accusations that it would hinder local control were unfounded. "We're trying to be very precise about this bill and make sure that everybody knows the rules of the game, while still giving local municipalities the ability to zone and to protect their roads," he said. As for environmental controls, "air and water permitting and monitoring is a function of the state, and that's what this bill says. [The Wisconsin Department of Natural Resources] has the resources; they have the people to be able to conduct that in a scientific manner. They have a billion dollar budget; I believe we do not want mini DNRs all over the state of Wisconsin doing environmental regulation, because then you end up with a patchwork of regulations, and people don't know from municipality to municipality what they are."
Some town governments without zoning regulations have turned to police powers as a way to govern sand mines, and opponents to the bill have said lifting their ability to use police power rule making would prove a negative for small communities where mines are located.
"Should [mining companies] be able to tear up the road driving 400 trucks a day past the school?" asked Vinehout in a statement. "Should people have local protection so their wells don't dry up?"
Because police powers can be used to change mine rules after an operation has already been permitted, Tiffany explained that the use of such retroactive controls creates uncertainty for mining companies who want to invest in local economies and create jobs. "Some are trying to change the rules of the game for existing operators," he said. The economic effect of strict and varied mine regulations, said Tiffany, can be seen by a look across the Mississippi River into Minnesota, where sand deposits have also brought interested mining companies. "State legislation has certainly been very chilling in terms of allowing the industry to grow in Minnesota. It's the same type of sand, one on the west side of the Mississippi and one on the east side of the Mississippi, and Wisconsin is prospering from it while Minnesota has chosen not to. All you have to do is look at that juxtaposition and see Wisconsin is prospering."
Vinehout criticized the bill as one that would limit the ability of local communities to regulate mines themselves. "Why should politicians in Madison control our communities?" she asked. "They don't live here."
Tiffany said there was nothing in the bill that would hinder a local municipality from prohibiting mining activities altogether, adding that the legislation was an effort to provide consistency to the world of mine regulations. "If you don't want mining, say so [in zoning ordinances]," he said. "Be honest with people."