A hotly debated new bill in the Wisconsin Senate sparked a 10-hour marathon public hearing in Madison last Thursday. The bill, championed by Senator Thomas Tiffany, R - Hazelhurst, would limit how local governments can regulate frac sand mining. Supporters say a cumbersome hodgepodge of local regulations threaten to stifle the industry, which has grown rapidly in Western Wisconsin. Opponents decry the stripping of certain local controls and caution against how the industry may damage local communities, health, and land. Tiffany said he is reworking his bill and does not expect it to be considered until 2014.
Madison, locals, and land
Last year, a landmark Wisconsin Supreme Court case upheld the use of police powers to regulate mining by the town of Cooks Valley in Chippewa County.
Most local authority comes in two forms: zoning powers and police powers. Generally speaking, zoning separates different land uses, whereas police powers control whether activities are lawful.
Tiffany's proposal would limit those powers and make other changes to mine-related regulation:
1. Cities, towns, and counties would be prohibited from using police powers — such as licensing to regulate mining and blasting. They could still use zoning to regulate such activities; however, existing mines would be exempt from any zoning rules adopted after they were issued permits. Police powers, conversely, do apply to existing operations.
2. Local governments would be prohibited from imposing air and water monitoring requirements at mine sites.
3. State legislators and regulators, like the Department of Natural Resources (DNR), would be given exclusive control over setting air quality, water quality, and water usage rules across the state.
4. Local authorities would be prevented from charging mine operators preemptive fees for estimated road damage caused by heavy trucks. Instead, locals could charge for actual damage after the fact, and would be required to split engineering costs half-and-half with mining companies.
Tiffany: clear roles, honest process
"What we're saying with this bill is you need to use your zoning authority for land use," Tiffany said of local mining regulation. "If you want to zone industrial sand out of your community, you can do that," he added, but locals ought to be using zoning powers, which are intended to regulate land use, not police powers. "I think what you get is a more honest process," he continued.
In regard to restrictions on local air and water regulation, Tiffany said, "We want that very clear; that is the state's role, not a local unit of government's role." The alternative is a patchwork of miniature DNRs, he said, "and that can be really chilling for commerce." Local governments do not have the resources to make reasonable, scientific regulation, like the DNR has, he stated.
It is not just about frac sand, either, Tiffany said. "What concerns me is that while sand mining is the poster child for [the use of local police powers], it could extend to lots of other activities," be it other activities by landowners or road users like milk haulers, loggers, and grain trucks, he said.
The idea is to universalize environmental regulations on air and water across the state and check what supporters describe as improper use of local authority against businesses. "Some people are saying 'you're going to gut local control with this,' but this bill is much more precise than that," Tiffany said. "We tried to be very precise with this bill" to preserve appropriate local controls and also protect private property rights, he added.
Sand companies are currently debating about whether to expand in Wisconsin, TIffany said. Whether or not Wisconsin governments provide reasonable and navigable rules for mining operations will determine the future of industry job creation and many lives, he said.
Opponents: 'scary proposal' would strip local control
"This bit about a patchwork of regulation is hogwash," said Buffalo County resident Gary LeMasters, who attended Thursday's hearing in Madison. "Every mine is a local mine," and mining companies everywhere have always had to deal with local regulations, he said. In any case, mining companies do not seem to be having too much trouble getting their mines permitted, he said.
Tiffany's claims that local municipalities will still have their zoning powers are hollow, LeMasters said. Through zoning, "one of the major conditions that we try to place on a mine is to monitor the water table," and the bill takes that away, he stated.
Attorney Thomas Harnisch, of the town government advocacy group the Wisconsin Towns Association (WTA), called the bill's restriction of local control "the broadest preemption law in 40 years."
Referring to state control of air and water regulation, Harnisch stated, "The DNR does not have regulations in a lot of these areas." He added, "That is why this proposal is so scary."
While the proposal allows for local zoning to regulate mines, zoning ordinances have to be carefully arranged to allow local municipalities the authority to do so, and the process of changing zoning ordinances is too slow to keep up with the burgeoning frac sand industry, Harnisch argued.
"We have towns that don't have any zoning, and we have towns under county zoning and they don't feel the county is doing enough," added WTA Executive Director Rick Stadelman.
All the towns in Buffalo and Trempealeau counties are under county zoning, as are most of the towns in the state, but in some other Western counties, many towns lack any kind of zoning, according to a 2011 report by the Wisconsin Department of Administration. Tiffany acknowledged that there were some legitimate concerns about the effect his bill would have on unzoned towns.
Harnisch said he expected many towns would seek permission from counties to conduct their own zoning if Tiffany's bill moves forward. However, town boards are often limited in the number of staff they can employ to draft and administer zoning rules, he explained.
Towns' interest in regulating mines is not just about the environment, but also about the identity of rural communities, said Harnisch.
More than a jurisdictional debate?
While the WTA has a vested interest in preserving local control, both Tiffany and opponents said that the debate is not just about principles of local control and called the other side's stance ironic.
Tiffany stated that one of the environmental groups speaking against the bill on the grounds that it gutted local control is also advocating for more federal control on environmental issues. "They're for local control when it's anti-mining," he said. "It's certainly inconsistent," he added.
"You have Republicans embracing the DNR," said LeMaster commenting on how he thought the situation was unusual.
Both sides admitted local control was only part of the equation. Protecting property rights and promoting commerce is also part of the reason for his proposal, Tiffany said. LeMasters and Brooks agreed that their concern over damages from mining was a major cause for their opposition to the bill.
Tiffany said that Thursday's lengthy hearing was very productive and that he will be revising his proposal to address concerns and make compromises, including the need for certain municipal police powers over wastewater. He added that he does not expect the bill to come to the Senate floor for a vote until early next year.