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Frac sand mine permits denied

POSTED August 30, 2013 8:45 a.m.

The Lower Wisconsin State Riverway Board voted to deny the permits to allow the Bridgeport frac sand mining project to take place within the Riverway boundary.

In a decision contrary to the recommendations Lower Wisconsin State Riverway Executive Director Mark Cupp, the board voted 6-2, with one member absent, to deny the nonmetallic mining permit applications of the Pattison Sand Company and Bridgeport Township landowners Earl Pulda, Lee Pulda, Alan Flansburgh, and Rodney Marfilius.

Flansburgh, who did not seek a permit from the Town of Bridgeport, applied for a permit from the Lower Wisconsin State Riverway Board in anticipation of pursuing other permits in the future. He was present at the meeting held last Thursday in Prairie du Chien and spoke in support of the mine.

The decision affects 53 acres out of the 305 acres leased by Pattison Sand for frac sand mining from Marfilius and the two Puldas.  For the Flansburgh property, it affects 80 acres of 222 leases by Pattison. Of the 80 acres within the Riverway boundary, only 14 would have been mined and reclaimed. Preliminary construction at the sand mine, outside of the Riverway boundary, is already underway.

“Of the literally thousands of communications we have received, the only comments in favor of the project are from people involved, either landowners or people involved with the mine,” noted LWSR Chairman Don Greenwood. Greenwood also noted that the board would need to correct what he perceived as faulty legislation.

The majority of the almost 200 attendees overflowing from the meeting room at the Crawford County Administration Building on August 22 met the decision with a standing ovation.

The board listened for over two hours to comments from more than 50 of the citizens in attendance. Only Blair Dillman, the owner of Prairie Sand and Gravel, spoke in favor of permit approval for the mine. Dillman’s company contracts with Pattison Sand to haul sand from their Boscobel operation, according to Dillman’s testimony. All others spoke in opposition to the project.

The proceedings were largely respectful, with those speaking attempting to stay within the two-minute limit imposed by the board. One person standing in the hallway did interrupt on several occasions, shouting comments over those of Cupp and Pattison Sand representatives.

Some of the more memorable testimony included two rural Gays Mills women who rewrote and performed Woody Guthrie’s ‘This Land Is Our Land’ about the impacts of industrial sand mining on the Riverway landscape. More soberly, several Bagley residents, including Bagley Village President David   Schott, separately testified to the noise and visible plumes of dust that affected their lives, originating at Pattison Sand’s Clayton, Iowa mine on the other side of the Mississippi River.

Several organizations spoke against the project, as well, including Crawford Stewardship Project and Arnie Steele of Bridgeport Concerned Citizens. Both Steele and the Crawford Stewardship Project, along with others, are part of a recently filed lawsuit challenging permits issued by Bridgeport Township allowing the mine.

The landowners and Pattison sand representatives followed the citizen testimony.

“I didn’t want to do anything to destroy my farm,” said Lee Pulda, one of the landowners. “I will pick up about 40 or 50 acres of tillable ground when this is done.”

The decision was made with a view to his children and grandchildren, according to Pulda.

The other landowners, Alan Flansburgh, Earl Pulda, and Rodney Marfilius echoed Pulda, saying the project would level portions of their property, reducing erosion problems and increasing tillable ground.

“We all have an interest in the river, but in the end it boils down to that when the standards have been met, they have been met,” said Peter Conrad, an attorney representing Pattison Sand. Conrad contended that the legislature did not include concerns such as dust, noise, or light in the considerations outlined by law, therefore they could not be considered in the board’s decision.

“We’ve received the other permits from the DNR and the Town of Bridgeport that we need to start operations,” said Pattison’s Beth Regan. “We have deleted two sites that are not in the Riverway because of your concern.”

Cupp told the board that while he opposed the establishment of a large-scale industrial sand mining within the Riverway, he felt compelled to recommend approval with conditions based upon a literal interpretation of the statues governing the Lower Wisconsin State Riverway Board. Cupp reviewed the statutory requirements and then detailed a list of conditions to be attached to the permit and voluntary actions to be requested of the mining company in order to assure scenic protection was achieved.

Richland County LWSRB member David Martin said there is sufficient gray area in the law to allow him to vote against the proposal.  Martin noted dust clouds from the mining activity and light emanating from the site would constitute the activity being visible from the river. 

“When you are dealing with the resources we have, we have to consider these things,” Martin said. “We aren’t denying these applicants their livelihood.”

“We need to follow the laws,” commented Melody Moore, the Dane County representative. “On the other hand, I am here to speak for the river. The intent of the law was to keep major industry out of the Riverway. There is no stronger way to express this than to deny.”

“The problem with this section of the law and looking at it, was that it was designed for small mines, not a project like this,” said George Arimond, Recreational User Representative. “The legislation hasn’t caught up with what’s happening with frac sand mining.”

Bob Cary, the Grant County representative, was obviously distressed, speaking with tears in his eyes.

“The law is the law and it needs to be changed in the future, but it needs to be upheld,” Cary said.

Cary went on to apologize, explaining that he had been involved in creating the current law, which was made with small scale sand and gravel quarries in mind.

After additional board discussion, the motion to approve the permits failed with Cary and Iowa County LWSRB member Jerry Dorscheid voting to approve and Greenwood, Moore, Martin, Crawford County LWSRB member Ron Leys, and at-large members Ritchie Brown and George Arimond voting to deny the applications.

Cupp noted an unprecedented amount of public commentary had been received during deliberations on the sand mining proposal including thousands of e-mails, cards and letters, phone calls and appearances at meetings.  He said there is no appeal process for the board decision. The applicants would have to go to court to challenge the board’s ruling.

It is unclear how Pattison Sand will respond to the decision, though Regan has expressed disappointment, maintaining the law is clearly written.

In the meantime, the company will need to respond to the suit brought by four Bridgeport Township residents, Arnie Steele, Loren Fishler, Mark Fishler, and Dan Linder, and  Crawford Stewardship Project, which seeks to have voided the permits issued by the Town of Bridgeport to Pattison Sand, Marfilius, and the two Puldas.

“The egregious decision-making process and resulting permit, amid over-riding objections and challenge by the Bridgeport neighbors, were unacceptable to us,” stated Edie Ehlert, Co-coordinator of the Crawford Stewardship Project. “The Lower Wisconsin Riverway, Highway 60 Scenic Byway and resulting Scenic Easements with the federal government by landowners (including those seeking to have frac sand mining on their properties) speaks to the wonderful value of this area for all of Wisconsin’s residents.”

“We brought in about 250 petitions in opposition to the mine to our township officials,” remarked Loren Fishler. “We brought our questions. We brought our concerns on misuse of agricultural land, our own farm and livestock and well concerns. The officials answered none of our questions. If allowed, this mine will have a negative impact on our lives, every day, for generations.”

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