Discussion regarding a pending frac sand mining permit in Bridgeport Township went into closed session at the Tuesday, Jan. 29 Lower Wisconsin State Riverway Board meeting.
The board met in the closed session with an attorney from the Wisconsin Department of Justice to discuss a conflict between state statute and administrative rules governing non-metallic mines in the Lower Wisconsin Riverway, and the options available to the board in making a decision on the permit application.
If approved, the permit application made by the Iowa-based Pattison Sand Company would open 178 acres of land in Bridgeport Township to non-metallic mining of silica sand for use in hydraulic fracturing, an extraction process of the natural gas and oil industries. The local landowners who would lease the land to Pattison for the proposed open-pit sand mine are Rod and Sandra Marfilius, Earl and Amber Pulda, and Lee and Joan Pulda.
A portion of the land that would be leased by Pattison, if the permit application is approved, lies within the purview of Lower Wisconsin State Riverway regulation.
The discrepancy between state statute and administrative code has placed the question of what parameters should be used by the LWSR Board in making a decision to approve or deny the permit.
“There is a potential for litigation, whatever the decision, given the appearance of conflict,” said Mark Cupp, the LWSR Executive Director. “My recommendation continues to be that we follow the statutes, approving the permit, and seek legislative changes to address future applications.”
Administrative rule RB 2.07 was created in 1993 to clarify implementation of the 1989 statute creating the Lower Wisconsin Riverway. The rule prohibited mining unless it existed prior to 1989 and was “visually inconspicuous”.
In 1995, the state legislature amended the Riverway statute, changing the nomenclature from “quarrying” to “nonmetallic mining” and restricting the LWSR to ensuring that such mines and their structures, stockpiled materials, and excavation cannot be seen from the river when deciduous trees are in leaf.
The administrative codes were reregistered with the Wisconsin Administrative Register in 1996, with the original language on mining and quarrying.
Board Members Melody Moore (LWSR Vice-Chair) and Donald Greenwood offered a position paper in December noting that according to the Wisconsin Legislative Reference Bureau, administrative code has the same power and force of law as state statute and could not be established, amended or repealed by a casual process. Altering code requires public hearings and hearings before several legislative committees.
Greenwood and Moore proposed the board not act on the mine application, leaving the code intact while pursuing an amendment to the Lower Wisconsin Riverway law.
Moore and Greenwood’s position came after legal counsel from Department of Natural Resources Bureau of Legal Services recommended the board act upon statute rather than code.
The LWSR Board will meet again on Thursday, Feb. 14 in Muscoda at 5 p.m. in Kratochwill Memorial Building. The permit applications will be an agenda item, but final action on the permits is unlikely. Public comment on the nonmetallic mining applications and other matters concerning the Lower Wisconsin Riverway will be accepted at the meeting.