The frac sand discussion in Winona County is over.
At least for now.
The Winona County Board of Commissioners on Tuesday night voted narrowly to ban industrial sand mining for use in fracking in the county, following years of debate over what the county’s role is in regulating and overseeing the commodity whose popularity related to its use in fracking elsewhere in the country spiked in recent years, only to see markets drive the demand into a near lull in 2016.
The decision, which makes Winona County the first in Minnesota to pass a full ban without restrictions, was approved by a 3-2 vote, with commissioners Marcia Ward and Steve Jacob dissenting.
The vote has been consistent for several months, amid multiple public hearings, working sessions, board discussions, and other gatherings as the county has vigorously debated its future role in playing a necessary role in a process that has invigorated domestic oil production while raising significant concerns over environmental and community health.
Supporters of the ban have been vocal for several years to move the process forward, citing concerns with water and air quality, health effects on county residents and reclamation possibilities, as well as the ability of the Winona County planning department staff to oversee the industry given its size, resources and workload.
Commissioner Greg Olson, the leading proponent of the ban from its first proposal, an issue that in some ways defined his successful re-election campaign, maintained that the majority of the people he heard from supported the ban.
“I’d put more weight on the public that had spoken … than I do a letter from an attorney from Minneapolis,” Olson said, addressing ongoing concerns that an outright ban could invite legal challenges to the county. “I think (the people) have been very unanimous.”
The other commissioners in support of the ban, Jim Pomeroy and Marie Kovecsi, didn’t take much time to reiterate arguments they’ve made in the past that the ban was the most efficient and clean way to move forward in terms of regulating the fine, round sand that in recent years has brought national and international interests to the county seeking to mine and process it.
Ward and Jacob, meanwhile, were equally consistent in their arguments against the ban over the past several months, also maintaining that there will be impending lawsuits over the decision and it was unnecessary to ban a commodity when there are regulatory options.
Jacob, whose motion to postpone the issue until Dec. 27 was voted down, said that a recent letter sent to the county board members by Minneapolis-based law firm Larkin Hoffman on behalf of unnamed clients threatening legal action, the letter Olson had referenced, showed that the board should not approve the ban.
Jacob also said he had spoken with a representative of the Minnesota Industrial Sand Council and he thought the board should wait and review.
“With this litigation pending … the wise thing to do would be to take the ordinance that we propose and the pending lawsuits and have the county attorney look at them,” Jacob said.
While Jacob advocated discussing the ban and lawsuit potential with parties threatening to sue the county, and referred to the document as a lawsuit, County Attorney Karin Sonneman clarified that a lawsuit would actually have to be filed to be called such, and the letter also referred to having to first review the decision made by the board.
“There is no lawsuit; it is the threat of a lawsuit,” Sonneman said.
Sonneman said that the process of creating a record of how the board made the decision was exactly the process intended to protect the county against a lawsuit.
Sonneman said that that given the threats of lawsuits by mining industry advocates and opponents of the ban throughout the public discussions at the planning commission and county board levels, a person would have to be living “under a rock” to be surprised by a lawsuit or the threat of a lawsuit.
Jacob and Ward also reiterated their characterization of the debate as urban versus rural interests.
Additionally, Ward said, without offering specific evidence, there wasn’t enough attention given to viewpoints that opposed the ban in the documentation pulled together to support the ban.
“It’s very insulting to all the people who came and all the organizations who support the compromise,” Ward said. “That’s the beauty of democracy; there’s more than one opinion, and no one opinion is right.”
The ban amendment was drafted by Sonneman and drew from several examples, including Goodhue County’s Florence Township’s ban on silica sand mining for fracking and the Land Stewardship Project’s proposed ban language from the spring.
The legal analysis made several additions to the initial language, including making an argument for the amendment as it relates to the values in the county’s comprehensive plan and the purpose of the county’s zoning ordinance.
It also clarifies the distinctions between restrictions on different types of mineral excavation, extraction and land alteration by defining some as commercial minerals compared to industrial minerals.
It would not affect the inter-county or interstate commerce of sand by truck, rail or barge, and would only apply to new mines not grandfathered in, which were previous concerns with the ban.
“I’d put more weight on the public that had spoken … than I do a letter from an attorney from Minneapolis. I think (the people) have been very unanimous.” County Commissioner Greg Olson