Lower Wisconsin State Riverway Board
requesting change in law regarding sand mines
By Ted Pennekamp
The Lower Wisconsin State Riverway Board will soon be sending a report to Governor Scott Walker and to state legislators asking for changes to the Riverway’s nonmetallic mining law, according to Riverway Board Executive Director Mark Cupp.
The law, which pertains to nonmetallic mining within the Riverway boundary, has been changed several times since the Lower Wisconsin State Riverway and the Riverway Board were established in 1989. Under the current law, the Riverway Board must grant a permit for nonmetallic mining within the Riverway boundary if the mine and its associated excavation, structures, stockpiled minerals or soil are not visible from the river when the leaves are on the deciduous trees.
During a highly contentious meeting and with a standing room only crowd present, the Riverway Board voted 6-2 on Aug. 22, 2013 in the Crawford County Administrative Building to deny giving a permit for an industrial sand mine to the Pattison Sand Company of Clayton, Iowa. One Board member was absent. The permit was denied despite the findings of a study commissioned by the Riverway Board which showed that the mine and its associated activities would not be visible during leaf-on conditions. The permit would have been for a proposed mine along the Wisconsin River in the town of Bridgeport. The area of the mine within the Riverway Boundary would be 53 acres of which 41 acres were proposed to be mined. The total mine site consists of 305 acres.
The Pattison Sand Company, along with four landowners on whose property the mine would be, filed a lawsuit on Sept. 20, 2013 in Crawford County Circuit Court contending that the Riverway Board did not vote according to the Riverway law, and therefore the permit should not have been denied. Oral arguments in the case are set to begin on March 20 at 2 p.m.
By sending its request to the governor and the state legislature, it would appear that the Riverway Board is attempting to get the Riverway law changed in time to prevent the Pattison Sand Company from obtaining the permit to mine within the Riverway boundary. Such a law change, of course, would also prevent other such companies from pursuing possible mines in the future.
In its report, the Riverway Board contends that it was not the intent of the state legislature to allow industrial sized sand mining within the Riverway when the Riverway law was “loosened” in 1995 regarding nonmetallic mining.
The report states that the history of the Riverway law shows that mining and quarrying were originally considered to be activities that ran counter to the overall goals and purpose of the Riverway.
The report also states, “When it was felt the original language of the statute was too restrictive in that it prohibited pre-existing quarries in the Riverway from operating, the law and administrative code were amended. At the time, nonmetallic mines were generally small in scale, no more than a few acres, and only sporadically active. Sand and gravel were occasionally mined for nearby roadway construction and maintenance when local needs arose. In 1995, it was believed that setting the standard that such activities shall not be visible from the river during leaf-on conditions was adequate to protect the Riverway resources and the major investment that the people of the state had in the Riverway.
“It is safe to assume that industrial scale frac sand mining with the associated alterations of the landscape topography and the increase in noise, dust and light pollution were not envisioned by the Legislature or the Riverway Board when the general prohibitions on nonmetallic mining and quarrying were loosened.”
According to the report, Riverway Board Executive Director Mark Cupp’s recollection is that the intent was to provide local governments along the Riverway the opportunity to continue to operate small sand pits to excavate material for winter pavement de-icing and road maintenance purposes.
The report states that the Riverway Board members are unanimous in their opinion that non-metallic mining activity on the scale typical of surface industrial sand mines is incompatible with the purpose of the Riverway and mission of the Riverway Board.
The report states, “It is the board’s belief that the statutory amendment in 1995 to allow for small gravel quarries and sand pits operated by local governments has opened the door to industrial scale frac sand mining in the Riverway. The board wishes to work together with the Legislature to quickly find a statutory remedy before the Lower Wisconsin State Riverway project is rendered moot by a proliferation of industrial scale frac sand mining and its related activities.
“To that end we, the members of the Lower Wisconsin Riverway Board, request consideration by the Wisconsin Legislature in replacing the current language of ss. 30.45(5m) with the following:
“No person may begin or expand a nonmetallic mining or quarrying activity within the boundaries of the Riverway. The following exceptions to this general prohibition are allowed, provided that all non-metallic mining and quarrying activities are not visible from the river during leaf-on conditions for the deciduous trees and a permit has been applied for and issued by the Riverway Board.
“(1) Non-metallic mines or quarries that were operating prior to the establishment of the Riverway. Such quarries may not be expanded beyond the original legal parcel within which they were contained.
“(2) Nonmetallic mines or quarries owned and operated by local units of government for roadway construction and maintenance within the local government’s jurisdictional boundaries.”
The Lower Wisconsin State Riverway encompassing 79,275 acres and extending 92.3 miles from the dam at Prairie du Sac to the confluence with the Mississippi River near Prairie du Chien, was created in 1989 when Governor Tommy Thompson signed Wisconsin Act 31. This historic legislation was a compromise crafted by legislators from both political parties and was the culmination of years of planning and hundreds of hours of public meetings.
The Lower Wisconsin State Riverway Board was created to administer the Riverway law. The Board is composed of nine members, of which six must be local residents or local elected officials from the affected counties (Columbia, Crawford, Dane, Grant, Iowa, Richland and Sauk).