Frac Sand Advocacy Leverage Points
Lead image by Mary Kenosian
Industrial sand mining is subject to certain regulations at the state level, but most of the decisions and oversight occur at the local or county level. Industrial sand mining operations have to obtain and comply with air permits that are part of the federally-approved State Implementation Plan, and water permits that are part of the Areawide Water Quality Management Plan. However, many of the state-level regulations may be insufficient to protect communities and their environments from the detrimental impacts of frac sand mining. Mine operations, the siting and zoning of new mines, and the mine reclamation plans are regulated by local government. Thus, working effectively with local government and utilizing the authority that resides with local agencies is essential in advocating around frac sand issues.
This document includes brief summaries of the types of policies and stipulations that communities have used to address potential new or ongoing frac sand mining operations in their counties. Several groups have put together more extensive documentation, including tools like sample town ordinances, and links to those excellent resources are included at the end of this wiki.
Quick tips on working with Local Government
Here are a few practices that can contribute to your success working with local government:
- Be specific with your asks of the government and government personnel.
- Prior to meeting with government officials, have clear, written requests that have actions associated with them (e.g. ask them to monitor a specific location rather than asking them to ensure clean air).
- Ensure that you are asking government personnel requests that they have the authority to do. People in many positions may be able to tell you “no” and it is generally a much more limited list of people who are able to say “yes” to your requests. Make sure you are speaking with the person who has the authority to help you.
- Demonstrate public support of your opinion or ask.
- Develop a group statement and get signatures, especially of landowners. Make sure that you highlight the support of people who are residents to whom the government official is responsible, such as their specific district or township.
- Recognize and discuss economic factors.
- Decisions at nearly all levels have to evaluate the economic consequences of various actions and inaction. Be proactive in discussing the economic factors involved in the situation you address. In situations that do not readily appear to be economically in your favor, think critically about other related economic factors. For example, while a sand mine might bring in some tax revenue and create some local jobs, if the mining company is not local, a lot of money will not be retained locally, and the financial impacts of necessary road repairs and loss of agro-tourism revenue may prove to be a net economic negative for the municipality.
- Utilize existing means for public participation.
In many permitting and zoning procedures there are mandatory periods for public comment and public hearings.
- Respond to the comment periods and be vocal at local hearings, since those are already established avenues for public critique, and often the only public critique companies have to address. Utilize those avenues, in addition to asserting participation by other means.
Local policy tools that can be used to address frac sand mining
In Wisconsin, there are several local policy tools that communities can use to empower themselves when facing frac sand mining issues. Examples of policies and tactics that have been used by communities are included below. Many of these tools are more discussed more thoroughly in publications listed in the Useful Resources section.
Cities or villages can enact zoning policies that separate land used for different purposes, like agricultural, residential, or industrial usage. Some of the reasons local government can adopt zoning policies include: protection of public health and safety, protection of community natural and cultural resources (e.g. farmland, groundwater, historical sites), and protection of public and private investments (Center for Land Use Planning, 2007). However, before a city or village writes a zoning ordinance, they must first ensure that they have the authority to do so by adopting village powers through Wisconsin state statutes. See this primer on zoning ordinances from UWSP. Cities and villages also must “develop a comprehensive plan to outline how they want development to proceed in their jurisdiction, and zoning ordinances must conform to these plans” (Civil Society Institute, 2014).
Licensing Ordinances (or Non-Zoning Ordinances)
In situations where towns do not choose to enact zoning ordinances, they can adopt licensing ordinances, which can include performance standards for daily operations. Licensing ordinances can allow towns to conditionally approve sand mining and processing facilities and set operational parameters such as truck traffic, hours of operation, noise, and light pollution. Licensing ordinance also grant the town the authority to deny a permit if the:…development and operation of the proposed nonmetallic mine is not in the best interests of the citizens of the Town...” (Civil Society Institute, 2014). The Town of Cooks Valley was one of the first to adopt a licensing ordinance such as described, and it was challenged by the frac sand industry, but was ultimately upheld by the Wisconsin Supreme Court (Pearson, 2013).
Cities, towns, and villages (but not counties) have the authority to enact a moratorium on development of a sand mining operation. Moratoria are not indefinite -- they halt activity so that local authorities can better assess the potential impacts of the mining operation before it is completed and develop a regulatory framework for it, and moratoria usually last for 1-3 years (Wisconsin Farmer’s Union Toolbox for Towns, 2015). One stipulation is that moratoria require a public health official or licenced engineer to file a written report verifying the reason for the moratorium. (Center for Land Use Education, 2012). To end the moratorium (or extend negotiations), towns can “impose requirements in addition to or exceeding the minimum standards if it has evidence that the public health safety and welfare will not be adequately protected without the imposition of additional measures” (Wisconsin Farmer’s Union Toolbox for Towns, 2015). This method of “putting on the brakes” through a moratorium has been effective to halt incoming sand mining operations in Trempealeau County, WI. (Civil Society Institute, 2014).
Development Agreements and Highway Agreements
Development and Highway Agreements are negotiated between towns and mining companies, and can be a lower-threshold to achieving operational stipulations (such as noise limits or road use) than licensing ordinances. Development agreements usually address issues related to noise, property value impacts, and bond requirements; highway agreements usually address issues related to road usage, maintenance, and repairs (Wisconsin Counties Association, 2013).
Each mining operation is required by state law to obtain a reclamation permit before they begin activities, including clearing the land. The reclamation plan submitted by the mine owner to the town or county needs to address how and where it will store the topsoil it removes for mining operations, how it will replace the topsoil after operations cease, and how it will prepare the land for its next intended use. It’s important to note that the next intended use of the land after it has been mined can very rarely be the same as what it was used for before the land was mined. This is partly because what was once a hillside would then be flat, changing several important factors including solar incidence and water drainage, and because the land use following reclamation must be a “beneficial use” which can be interpreted to preclude agricultural use. The local regulating body assessing reclamation plans and issuing reclamation permits is typically the county, but cities and villages can have the ability to enact a reclamation ordinance for more localized control (Center for Land Use Education, 2012. Several counties have taken close examination of reclamation plans in their fight against frac sand mining. Buffalo County was able to halt an incoming mine by arguing that the reclamation plan submitted by that mining company was insufficient in its projected restoration, and residents of Chippewa County have argued that a reclamation plan’s intended use was not aligned with the counties comprehensive plan (see note on Chippewa County).
Strengthening Advocacy Efforts
Building a Support Base
Many communities facing the rapid development of the frac sand mining industry are not seasoned environmental justice advocates, and may find themselves becoming involved in politics and environmental protection for the first time. A culture of self-reliance can lead to isolated, newly minted community advocates standing up against veteran industry lobbyists. However, regional connections between communities facing frac sand mining, and connections to communities facing other parts of the oil and gas industry process (e.g. fracking), have been successful in broadening and strengthening community support. Groups from different townships have formed alliances, such as the Save the Hills Alliance, to share information and resources, learning from each other’s experiences. Regionally focused nonprofit organizations, such as the Midwest Environmental Advocates and Wisconsin Farmer’s Union, have produced resources to aid the entire region as well. To raise awareness and garner support from outside the region, some communities have developed relationships with communities facing hydraulic fracturing (where the frac sand is being used as proppant) and natural gas compressor stations (where the gas from fracking is condensed for use). There is a lot of national attention on the environmental hazards of hydraulic fracturing, and gaining visibility as part of that whole gas production process will be important in leveraging public pressure for better mining regulations. Please read (Pearson, 2013) for further explanation of community organizing and networking.
Communicate the true economic impacts
Economic arguments are important in advocating for or against any industry. Read and contribute to this wiki to start building a DIY frac sand economic assessment plan.
Being ready for industry tactics
The more that communities are prepared for the potentially divisive issues they may face, and the tactics used by industry spokespeople to denounce community concerns, the higher their likelihood of success.
Communities who have faced frac sand mining operations have said that decisions around granting mining permits have caused strife between landowners. A central question in many town debates involves the ideals of one person’s property rights versus another person’s property values, and the rights of one landowner to permanently alter a shared landscape (Pearson, 2013). Being prepared for conversations such as these, prior to entering into an urgent situation with a mining company applying for a permit, may help communities navigate difficult conversations and situations.
There are certain tactics that industry groups frequently use to unsettle community members that advocate against them. Being prepared for industry arguments may help keep communities motivated. According to (Pearson, 2013), common industry tactics include:
- Insisting that community members don’t understand the science behind airborne particles or water quality and quantity issues
- Touting job creation as the primary economic factor without discussing negative financial consequences of mining activity
- Strategically marketing themselves as “good neighbors” and avoiding negative publicity like lawsuits
- Normalizing sand mining as harmless and something that has been done for centuries Communities can be aware of these common tactics to prepare arguments to counteract them.
Read more about these tactics and how to be prepared for them here.
Example arguments used to halt mining operations
A few examples of arguments communities have used to halt sand mining in their areas are described on community blogs. Some of these examples include:
- Communities asserting improper reclamation plans:
- Breezy Point Mine - Mikey O’Connor of Buffalo County
- Chippewa County - Johnne Smalley, of Chippewa County
- Communities working to protect other revenue sources, like the tourism and recreation corridor. - Mikey O’Connor of Buffalo County
- Communities advocating around public health and safety impacts, especially in hauling sand. - Mikey O’Connor of Buffalo County
- A template for "REPORTING CONCERNS AND POTENTIAL VIOLATIONS TO THE WDNR" from Midwest Environmental Advocates Reporting_Concerns_and_Potential_Violations_to_the_DNR_-Updated_8.8.2016-.pdf
- ISM public nuisance concerns (Affidavit doc that can be edited into a "journal" format) From Dwight Swenson:
- Documents from Mikey O’Connor that are helpful for communities fighting frac sand mining industries.
- Wisconsin Towns Association Toolbox
- University of Wisconsin Stevens Point, Center for Land Use Education. 2012. Planning and Zoning for “Frac Sand” Mining, Center for Land Use Education.