By Eric Freedman
The Wisconsin Court of Appeals has upheld Trempealeau County’s rejection of a proposed silica sand mining operation, finding sufficient evidence to support denial of a permit for the project.
The three-judge panel unanimously ruled that the county’s Environmental & Land Use Committee acted legally when it rejected a conditional use permit application from AllEnergy Corp and AllEnergy Silica, Arcadia.
Although the Wisconsin Department of Natural Resources issued state permits to AllEnergy to mine sand for use in fracking, the county committee’s “general zoning authority and the DNR’s permitting authority are distinct powers that do not conflict. AllEnergy needed both approvals to proceed with the mine,” the court said.
A further appeal is possible.
The 265-acre site is in an area zoned for agriculture.
When AllEnergy applied for the permit in 2013, the county hired an engineering company to review its application.
The committee then held a public hearing where AllEnergy representatives made a presentation and county residents were allowed to comment. The committee also considered written comments, the court said.
“While those in favor of the project principally signaled their support through form letters with little or no further comment, the vast majority of those who attended the meeting and offered comments were opposed to granting the permit,” the decision said.
Objections included the potential impact on seasonal wetlands where waterfowl breed and on Trout Run Creek, a class II trout stream.
“Many individuals noted that with so many sand mines operating in Trempealeau County, the aesthetic character of the area was changing such that there was a significant risk to one of the area’s most attractive attributes, its natural scenic beauty,” the court said.
The court said, “AllEnergy does not dispute that the proposed mine would affect wetlands in and around the mine site” but noted that the company planned to buy wetland mitigation credits to offset such adverse impacts.
According to the decision, committee members cited four major reasons for denying the permit under the county’s zoning ordinance:
- An incomplete application.
- Environmental concerns
- “Changes to the landscape and adverse effects on wildlife and recreational opportunities to residents and tourists”
- Concerns about health, local culture and social conditions.
AllEnergy is considering asking the state Supreme Court to review the ruling, said Gary Van Cleve, a lawyer in Minneapolis who represents the company.
“The issue that really concerns me is there doesn’t appear to be much, if any, demand imposed on the local decision-making body to have substantial evidence in the record to support the denial,” Van Cleve said.
For example, he said the Court of Appeals cited a comment at the public hearing where a resident said that hanging laundry outside near a sand mining operation “results in that laundry being dirtier. There needs to be a little more than anecdotal types of declarations by people opposed to the project to reach a substantial evidence level.”
Van Cleve said, “We had a whole panoply of scientific evidence that was accepted by the DNR in its findings, and it concluded no significant environmental harm” if the sand mining operated as the company proposed.
A lawyer for Trempealeau County, Aaron Graf of Madison, said, there are similar cases pending around the state.
“Essentially, most of the time a county makes a decision on one of the frac sand issued it’s sued by the company or by the citizens,” Graf said. “A large majority of the time they get sued.”
And as in this case, the courts generally uphold the local action because “under Wisconsin law, there’s a good deal of deference given to the county or town body, whichever is making the decision,” he said.