Analysis by Karl Fate
June 21, 2018--On June 19, the Oneida County Board decided to preemptively allow sulfide mines in areas of our county zoned 1-A Forestry and General Use, so that a mining company could avoid having to ask for a rezone the area. This effectively removes a critical protection from the towns and from all of us who pay taxes here.
This had been pushed by some supervisors since 2012, as a way to retaliate against the Town of Lynne, and to force a mine on them. Although this maneuver was designed to facilitate a mine at Lynne, it could potentially impact any zoned town in the county, some having large portions zoned 1-A Forestry and General Use.
This Resolution came from the P&D Committee, which does not have a single member who is a strong advocate for our water. In fact, several committee members have been pushing a mine at Lynne for many years. It is clear that this process was used by this committee to push the agendas of the committee members onto the full Board of Supervisors.
Perhaps the most disgusting aspect of this debacle is that the supervisors disingenuously played innocent, as if they had no choice in voting for something that the people did not want. Yes, gentlemen, you did have a choice, and you decided to vote against local control, the towns, the taxpayers, and against protecting our water resources.
In the early 1990s, our county government lost the public’s trust, and had to learn the perils of sulfide mining in our watery world the hard way. Those lessons have not been lost; they have been deliberately ignored. This government is making the same mistake, and unlike the 1990s, it is not an innocent one. The opposition that you have already seen -- the impressive turnout at the June 6 Public Hearing, and the two dozen public comments made on Tuesday, all against allowing mining in our county -- will increase exponentially. And you will learn that the physical realities at Lynne will not go away. Once again, out tax dollars will be squandered because our government insists on trying to mount a dead horse.
Analysis by Karl Fate
June 15, 2018--There was only one good thing of immediate relevance that happened at this week's June 13 meeting held by the Planning & Development Committee -- its final meeting before the County Board meeting on Tues., June 19 -- and that is really because of what did not happen.
To understand this, we have to first look at the June 11 meeting. When I read the first account of this meeting, it appeared that the committee went “off agenda.” This has been confirmed by the recent reporting by Richard Moore.
What did the committee talk about when they were “off agenda”?
Essentially, they talked about how to counter the testimony at the hearing that called for the County Forest to remain closed to metallic mining, by putting the issue up as a referendum question on the November ballot, and by the Board simply voting to re-open the forest to metallic mining.
Although it appears that nothing was formally voted on “off agenda,” it is clear that a decision was made regarding the referendum question prior to the June 13 meeting because we were given a finalized version of the referendum resolution at that meeting.
When Chair Scott Holewinski, at the June 13 meeting, brought up the issue of the County Board voting on a resolution to re-open the County Forest to metallic mining, it was shot down by committee member Mike Timmons (who is usually quiet) and he was supported by Dave Hintz, not on the committee but the chair of the Board. They thought the resolution should wait until after the referendum results are in. It was indefinitely tabled, with the motion made by Jack Sorensen.
The more I think about the referendum resolution, the less I think of it. Aside from the obvious issue of it being brought up “off agenda” on June 11, and then showing up on June 13 as in finalized form as a resolution to present to the County Board, and the reality that lobbyists will be coming out of the woodwork trying to sway votes one way or another, I see another issue with it.
The question reads, “After performing their due diligence, should Oneida County allow leasing County owned lands in the Town of Lynne for the purpose of metallic mineral exploration, prospecting, bulk sampling and mining?”
The problem with the wording of this question is that Oneida County has never “performed their due diligence," ever, in the last 28 years since the Lynne Deposit was discovered, and that includes the time that Dave Hintz chaired the Mining Oversight Committee.
I think it is time that we demand that our county government finally come to grips with the physical realities on the ground at the Lynne Site, as well as the rest of our County Forest.
Regarding the Metallic Mining Ordinance rewrite, the 40-some public comments at the Public Hearing on June 6, with few exceptions, were really not taken seriously. We have before us an rewritten ordinance that the people of Oneida County don’t want, that was not constructed in the Public Interest, and does not represent the Public Interest. There are simply too many things still wrong with it, for me to address everything.
I think the most important thing we need to ask to have changed, is to only allow mining in areas zoned “Manufacturing and Industrial." This protects the county, it protects the towns, and it protects the people living in an area who would be impacted by the massive change in land use that would be caused by a massive sulfide mine. We get one more chance to do this: on Tuesday, June 19, 9:30 am, at the full County Board meeting.
Joint Comments before the Oneida County Planning and Development Committee on Oneida County Bulk Sampling Moratorium and Metallic Mineral Exploration, Bulk Sampling and Mining Ordinance Amendments, on behalf of the Sierra Club–John Muir Chapter, the River Alliance of Wisconsin, Wisconsin Resources Protection Council, Wisconsin League of Conservation Voters, and Midwest Environmental Advocates
Presented by Dave Blouin
Mining Committee Chair, Sierra Club - John Muir Chapter
Thank you for the opportunity to make these comments and suggestions related to the draft Oneida County Ordinance Amendment #10-2018, Chapter 9. Article 9.61, Metallic Mineral Exploration, Bulk Sampling and Mining.
We understand and appreciate the difficult position that the passage of 2017 Act 134 by the legislature has put the County in. The draft ordinance is an important and significant starting point for discussion and we offer our comments with hopes of making the ordinance as protective as possible of the County’s interests in safeguarding its residents, property values, and natural resources from destructive industrial-scale metallic mining.
Our interest in this issue comes from our members and supporters who have an interest in protecting and preserving the natural habitat, air, waters and public health of Oneida and its neighboring Counties and citizens. Our interests include preserving County forest lands for their sustainable income and recreational resource benefits and the Willow Flowage and its tributaries. As you know, the Willow Flowage is a state-protected Outstanding Resource Water that is already being harmed by mercury deposition.
Our concerns arise from the failed environmental track record of the mining industry and metallic sulfide mining in particular. Despite the repeal of the state’s Prove It First regulation requiring proof of successful mining in metallic sulfide minerals, the mining industry has yet to demonstrate any examples of mines that have safely operated and closed without causing pollution.
Mining projects are among the largest industrial activities proposed in Wisconsin in terms of land use and leave behind multi-millions of tons of reactive mine wastes covering hundreds of acres of land. Open pit and underground mines expose the same reactive rock. The mines are not usually backfilled and closed to limit acid mine drainage production of acid and the release of heavy metal contaminants and both mines and wastes must be managed to control acid production on time scales that begin with decades and can stretch to centuries.
Timing of ordinance approval
Act 134 has established an artificial and arbitrary deadline of July 1, 2018, for completion of updating ordinance language but we encourage the Committee to ignore this deadline and take the time to consider amendments or to reject the permitted use approach of the Amendment and return to your existing zoning approach to make the ordinance as legally robust and protective to your residents and natural resources as possible.
The likeliest mineral deposit to be proposed for development is the Lynne deposit that is owned and controlled by the County. This means that a company would have to be granted a lease before any exploration or bulk sampling work can be done. That fact alone means that any company interested in Lynne cannot vest legal rights in your ordinance anytime in the near future and means the July 1 deadline does not apply to Oneida County and you control if and when a mining permit application can be submitted.
In fact, the Wisconsin Counties Association guidance points out that only a full mine permit application to the County would result in vested rights in the ordinance language at the time of the application. This means that a Notification of Intent to apply for permits, or exploration and/or bulk sampling permit applications would not result in vested rights related to the full mining sections of the ordinance and gives the Committee additional time to consider amendments or even scrapping the current proposal to return to County zoning.
Legislative Intent of County Board to restrict mining
We urge the Committee to honor the vote by the County Board made in August 2012 that rejected mining as a form of economic development for the County and maintain the current legal land use zoning restrictions in the 1-A Forestry District that do not list mineral mining as a conditional use. Mineral mining is currently and appropriately allowed only as a conditional use in the Manufacturing and Industrial, and General Districts and Act 134 did not preempt the County’s authority to maintain this appropriate land use restriction.
Applicants interested in mining in Oneida County could work with the County and other local governments to re-zone County Forest land if necessary for mineral development if the Ordinance Amendment is not adopted. If the draft Amendment is adopted, we urge the committee to amend it further by deleting the District 1-A Forestry from the list of districts where nonferrous metallic mining is a permitted use in N.2. (line 576). This amendment would be consistent with the legislative intent established in 2012 by the County Board.
Issue with Permitted Use Model and Local Agreement
The Wisconsin Counties Association (WCA) Handbook states that Zoning Ordinances are “zoning ordinances are arguably the strongest and most legally defensible regulatory framework available to counties.” Oneida County’s current regulatory approach for mining is zoning but the Amendment replaces it with a Permitted Use model. The WCA notes in its discussion of Licensing Ordinances (or Permitted Uses as in the Amendment) that the Licensing approach has inherent legal issues that could result in the state approving mining permits without the requirement of a demonstration of local zoning approvals based on inconsistent language in the statutes (see WCA excerpt below).
The WCA also notes that there is legal uncertainty over whether a license ordinance is a legal land use ordinance under state law if the license incorporates code elements that can be considered zoning. If either of these two legal issues are challenged by a mining company or its proxies, the County could find itself unable to enact and enforce a local agreement and/or the state could simply permit a project without proof of local approvals. Neither of these outcomes are desirable for the County if the goal of the Amendment is to include a valid Local Agreement.
Items 4. & 5., excerpted from Section VIII, Licensing Ordinances, pp 38-39, WCA Nonferrous Metallic Mining Handbook:
4. Another Legal Risk in Adopting Licensing Ordinances vs. Zoning Ordinances for Regulation of Nonferrous Metallic Mining: Potential Loss of WisDNR’s “Local Approval” Requirement. Pursuant to Wis. Stat. § 293.49(1)(a)6, WisDNR must issue a mining permit if certain conditions are met in an application. One of these conditions is that the application demonstrates that “the proposed mining operation complies with all applicable zoning ordinances” (emphasis added). This language is unlike Wis. Stat. § 293.41(1), which references a “zoning or land use ordinance (emphasis added).”
Wisconsin courts have not determined whether WisDNR’s permit issuance is conditioned upon an applicant securing local approvals if those approval requirements are set forth in a licensing ordinance, rather than in a zoning ordinance. Given the lack of case law for guidance, a county faces the risk of its approvals no longer being a condition of WisDNR’s approval if a county elects to use a licensing ordinance to regulate nonferrous metallic mining. In effect, a county’s use of a licensing ordinance, rather than a zoning ordinance, would excuse an applicant’s failure to obtain local approvals when obtaining the mining permit from WisDNR.
5. And Another Legal Risk in Adopting Licensing Ordinances vs. Zoning Ordinances for Regulation of Nonferrous Metallic Mining: Potential Loss of Ability to Use a Local Agreement. Wisconsin Statute § 293.41(1) clearly allows a county to enter into a local agreement with a mine operator if that county has a zoning code. It is less clear whether a Wisconsin court would allow a local agreement to be used in conjunction with a licensing ordinance. This uncertainty is due to the language of Wis. Stat. § 293.41(1) stating that a local agreement may be used if an operator is required “to obtain an approval or permit under a zoning or land use ordinance.” While a licensing ordinance seems to meet the “permit…under a land use ordinance” requirement in Wis. Stat. § 293.41(1), a court may determine that a licensing ordinance is not a land use ordinance, thereby eliminating a county’s ability to use a local agreement. In addition, a court may interpret a comprehensive licensing ordinance that meets the requirements of a “land use ordinance” as a zoning ordinance, thus requiring the necessary statutory approval process of a zoning ordinance.
Bulk Sampling Moratorium Resolution
We support enactment of Ordinance Amendment #9-2018 to create a temporary moratorium on Bulk Sampling. Our understanding is that this is to allow time for the state to create administrative rules for Bulk Sampling as specified in Wis. Stats. 293.13. Bulk Sampling in metallic sulfide rock has the same potential as full mining to produce acid mine/rock drainage from the pits and waste materials and should be regulated as protectively as possible due to the short and long-term risk of contamination that is not generally an issue for non-metallic mining. For that reason, we urge the Committee to revise the Bulk Sampling section of the full Ordinance Amendment #10-2018.
It is also unclear whether or not the state will have the time or resources to draft rules for Bulk Sampling in the 18-month window established in the amendment. We want to urge the County to consider drafting additional protections to regulate Bulk Sampling in case the state fails to draft comprehensive rules. Marathon County is ready to adopt a Bulk Sampling code that includes additional protections such as controls on lighting, blasting hours, hours of operation, dust control, fuel storage and safety, site security, county inspections, a prohibition on chemical extraction and processing and reclamation requirements. These are all examples of appropriate protections the County has authority to enact and that are not preempted by state law.
We also note that the amendment specifies the Oneida County non-metallic mining reclamation standards for Bulk Sampling. County non-metallic mining standards were not designed to handle Bulk Sampling in sulfide materials and we suggest that the Committee adopt reclamation rules that index current state law, specifically Wis. Stats 293.13(2) and WI Administrative Code NR 131.08. These are the minimum standards the state will require of a Bulk Sampling permit – especially if new administrative rules are not written prior to the 18-month moratorium.
Additional reductions in protections in the Ordinance Amendment
In light of guidance from the Wisconsin Counties Association and comments from the mining industry front group, Natural Resources Development Association (NRDA), we looked at the draft to see whether the County has proposed regulation that supersedes current state regulation and/or potentially makes these activities too “difficult” or even impossible for the industry to meet. Our review of the ordinance amendment didn’t find anything that oversteps the County’s authority to regulate exploration, bulk sampling or mining. There are certainly instances where the County duplicates or references lists of state requirements but that duplication is not the same as exceeding the state’s regulatory authority.
In fact, the amendment reduces a number of important protections that remain within the County’s authority to regulate and we encourage the committee to consider reinstating these code elements plus enacting any additional safeguards it feels are necessary to protect its interests – even if the safeguards appear to be or are actually more protective than state standards – as a statement of intent of policy on metallic mining by the County. These safeguards then help direct current and future County regulators and legislators as they consider permits for mining and for negotiation with a mining company seeking permits to mine.
Local Agreement approval rules
The Amendment proposes two changes from the current ordinance that should be rejected in favor of the current language. The first is the current requirement of a three-fourths vote of the County Board to grant a variance from the ordinance, or to make any part of it non-applicable in a Local Agreement. Making these important decisions subject to a simple majority vote by the Board, as in the amendment, only serves the applicant by making such an important local land use decision easier to gain. The second is the change in the clause related to opening and modifying a local agreement. The current ordinance states that the agreement “shall” include such language and this is a requirement in state mining law (see: Wis. Stats. 293.41(2)(g). The word “may” should be replaced for “shall” in the amendment, K.6.b. (line 458).
The Amendment language for approval of a Local Agreement (lines 427-435), is inconsistent with the list of Timing Milestones and Triggering Events (lines 112-113). We recommend clarifying K.5.a (lines 427-435) to require the Local Agreement not be signed until immediately prior to or concurrent with the state’s final decision on a permit application. The proposed language here could result in the County signing a local agreement long before all the relevant facts about a mine proposal are known and prior to the closure of the public record on the draft permit(s) and the draft EIS. Signing Local Agreements before all the facts are disclosed has caused significant controversy and resulted in major delays in permitting efforts in past mine projects at both Flambeau and Crandon.
The final permit decision by the state to approve or deny the mining permit is required within 90 days of the completion of the public record of public comments and the state’s responses to public comments on the draft permits and the draft Environmental Impact Statement. See Wis. Stats. 293.49. The goal for the County here is not to unnecessarily delay a decision to approve or deny a local agreement; rather it is to ensure that the County has adequate time to exercise due diligence and review the public record within the 90-day window the state has to finalize the mining permit decision and to allow the County time to address any new issues that arise as a result of the public information hearing and public comments that comprise the public record.
An additional rationale for pushing the signing of an agreement to the very end of the process is that Act 134 reduced the hearings on the Draft and Final Environmental Impact Statements from two to one hearing and only at the end of the process where it is accompanied by draft permits. The result is a significant reduction in the amount of time available for review of the EIS and any public comments including expert testimony that will only be heard at the single hearing. This single hearing is also for information only and is not conducted as a Contested Case Master Hearing thus increasing its importance when considering whether or not a negotiated Local Agreement is protective enough of the County’s interests.
The state’s final permit decision to approve or deny the mining permit hinges on a number of factors including satisfaction that the proposed mining operation conforms with all applicable zoning ordinances. See Wis. Stats. 293.49(1)6. This law ensures local governments have an important tool to help them understand the full range of potential impacts to plan for protecting their interests.
Processing and mine waste restrictions
The current ordinance includes legal protections that are eliminated from the Amendment, specifically: solution mining, smelting and refining, and disposal of mining waste from prospecting or mining sites in Oneida County from a prospecting or mining site outside of the County. The current protections should be retained and in the case of the disposal restriction, expanded to include Bulk Sampling from sites outside of the County.
Solution mining is a significant cause and source of groundwater contamination from the use of cyanide or other reagent solutions to dissolve economic metals from ore in what are known as “heap leach piles.” These same toxic chemicals are often spilled or accidentally released at mine sites. Smelting and refining of metals are known causes of acid rain and local and long-range air pollution of land and waters via air deposition of heavy metals that are difficult to remove from processing exhaust and venting. The final item – restricting mine waste disposal from projects outside of the County – should be expanded to include Bulk Sampling by name and is a common-sense and legal land use control to avoid overfilling existing and potential solid waste facilities in the County.
Specified Setback Distances
The existing setback distances in Chapter 9.6 C.2. have been significantly reduced in the Amendment. We recommend maintaining the current setbacks, specifically:
The setback distance from a residence is currently 2500 feet, while the Amendment proposes to reduce this distance by two-thirds to 800 ft. The setback distance from a commercial (non-residential) structure is currently 1500 ft., while the Amendment proposes 650 ft. The setback from a water well is currently 1500 ft., while the Amendment proposes reducing this to 1200 ft. And finally, the Amendment simply eliminates the current setback of 2500 ft. from any State Natural Areas or County recreational areas – places that should automatically be protected as much as possible from the effects of any mineral mining. The original setbacks should be retained, not reduced or eliminated as in the Amendment.
The current mining ordinance includes an information requirement related to an applicant’s environmental compliance history (9.61 E.3.h.). This information requirement would help inform elected officials and the public about an applicant’s compliance history and would not supersede state law provided it is not used as criteria for permit approval or disapproval.
 WCA Nonferrous Metallic Mining Handbook, Sec. VIII, 6. Timing and Vested Rights, p. 31,
 Ibid, p. 28
 Wis. Stat. § 293.49(1)(a)6.
 See Zwiefelhofer, 2012 WI 7 at ¶62-63; 76 Op. Att’y Gen. 60, 68 (1987).
Presented by Karl Fate, Rhinelander
Keep the County Forest Closed
The taxpayers of Oneida County are sick and tired of having our tax dollars used to weaken the protection of our Lakes and other water resources because of threats coming from sources outside of our County. We saw this with Act 55, and we are seeing it again with this process. The ultimate responsibility for creating this threatening atmosphere in our County, and across the State, lies squarely in the lap of Senator Tom Tiffany who has no problem spending public resources catering to Corporate Special Interests.
The only way for Oneida County to put an end to these threats is to keep our County Forest lands closed to metallic mining and to formally spell it out in this Ordinance. The Lynne Site is a horrible place for a mine, but it is not unique. It’s saturated with water and is surrounded by wetlands. There are many such areas on our County Forest. The sulfide deposits are found in the bedrock. The depth to bedrock on the vast majority of our County Forest is over 100 feet and the depth to water table on our Count Forest is zero to 50 feet. The mineral deposits are underneath all of this. There aren’t suitable sites for a massive sulfide mine on our County Forest. Keep it closed.
Preserve our Current Zoning
The reason we have Zoning is to protect the taxpayers, their Property, and their Resources from large changes in land use. There would be no greater change in land use in our County than a massive sulfide mine. This reality is reflected in our current Ordinance. The proposed Ordinance specifically changes this to promote a mine at Lynne and to weaken Local Control. The lawyer hired by our County is quoted as saying that “you need to add land to it to be attractive to mining companies.” This is inconsistent with mining no longer being “a policy goal” in our County.
A Massive Sulfide Mine is not compatible in either 1-A Forestry or General Use. A Massive Sulfide mine would not protect the “integrity” of our Forest or preserve it in “a relatively natural State.” Much of the mine site would no longer be a Forest at all, ever.
Many of the areas in our County zoned “General Use,” such as my own property, are some of the most undeveloped parts of our County where a Massive Sulfide mine would create the greatest of changes in land use.
The Oneida County Landfill is within our County Forest and is appropriately zoned “Manufacturing and Industrial.” The waste material created by a mine at Lynne would dwarf the Oneida County Landfill. And, unlike the landfill that allows groundwater standards to be exceeded up to 150’ from the edge of the landfill, the waste disposal sites at Lynne would be allowed to exceed those standards up to 1,200’ from the edge of the sites. The mine waste would have to be isolated from the environment for the rest of eternity.
If there were a mine at Lynne, the mine site would have to be withdrawn from the County Forest Program, and the County would have to find land to replace the site because it would be considered a “Net Loss."
Allowing metallic mining only in areas zoned “Manufacturing and Industrial” is not a ban or Moratorium. It is an important hurdle that protects the County, the Towns, and most importantly the people that live and work here. Metallic mining should not be a permitted activity in “1-A Forestry” or “General Use.”
I find the treatment of Local Agreements in this proposed Ordinance to be extremely troubling. Ever since Flambeau I, the industry objective has been to get Local units of government out of the way as quickly as possible by making all, or some portion, of a Local Ordinance non-applicable, in exchange for some financial reward given to the Local unit of government. Assistant Corporation Counsel Mike Fugle was recently quoted as saying that, "There's an old saying: Everybody has a price." Thankfully, not everyone can be bought.
Negotiating a Local Agreement substantially favors the Mining interest over the Local unit of government because the mining interest will know what it wants, in great detail, while the Local unit of government will not. If a Local Agreement is signed, the Local unit of government will find it extremely difficult to fix the inevitable mistakes, and impossible to get out of because it will have signed a binding contract with another party.
Rather than thoughtful consideration if a Local Agreement is appropriate, or not, at the time, this proposed Ordinance ties the hands of this and future governments by making a Local Agreement a requirement.
Most alarming are lines 458-462 of the proposed Ordinance. Our current Ordinance states that, “A local agreement shall include the right to reopen and modify the local agreement after” approval, and that “In such case, the agreement shall be modified in accordance with the approval process set forth above. The proposed Ordinance states that “A local agreement may include the right to reopen and modify the local agreement” and then requires a three-fourths vote by the County Board to reopen and modify.
Our current Ordinance protects itself by requiring a three-fourths vote of the County Board, for a local agreement to make any portion of the Ordinance “non-applicable,” or to grant a variance from the Ordinance. The proposed Ordinance lowers the bar for a local agreement to make any portion of the Ordinance “non-applicable,” or to grant a variance from the Ordinance, by requiring only a simple affirmative vote of a majority of the County Board. I cannot conceive of a more blatant effort to promote a mine at the expense of the County and the Public’s interest.
A Local Agreement may have a place if it is used to address issues not covered by the Mining Ordinance, but there should be a high bar for making any portion of the Ordinance non-applicable, requiring a three-fourths vote by the County Board, and a low bar, favoring the County, to reopen it. A Local Agreement should never be approved of until after the County has been able to review the Final Environmental Impact Statement so that it can make an educated decision.
Oneida County has no obligation to facilitate a Mining District in our County
Our current Ordinance has prohibitions meant to preclude a Mining District in, or involving our County.
Specifically, our current Ordinance prohibits “The process of solution mining, smelting or refining,” and “Disposal of mining wastes at a prospecting or mining site in this county from a prospecting or mining site outside of this county.” These prohibitions should be retained in the proposed Ordinance.
Our current Ordinance contains “Bad Actor” provisions, Article 6-17, 6, Environmental Compliance Standards. These provisions should be retained in the proposed Ordinance.
Presented by Eileen Lonsdorf, Lake Tomahawk
Oneida County Planning and Development Committee: Thank you for allowing me to address my concerns to you this evening.
Sulfide Mining in Oneida County wetlands is a dangerous and thoughtless use of our beautiful Northwoods forests, wetlands, lakes, and rivers. Sulfide mining is the most toxic industry in the United States.* Sulfide mining has never been proven to not pollute the environment, especially the water ecosystems.** Sulfide mining puts rivers, lakes, wildlife, and public health at risk by creating acid mine drainage, a highly toxic process that renders water poisonous and ecosystems severely damaged for hundreds of years.
Oneida county has the highest percentage of wetlands in the state of Wisconsin. It also has the highest percentage of County lands mapped as wetland.*** There are 428 named lakes in Oneida County, Wisconsin, along with 701 with no names. Together they make up 68,447 acres of surface area. Willow Flowage, at 6,306 acres, is the largest. Oneida County is the county with the second largest number of lakes in Wisconsin, after neighboring Vilas County.
As our elected representatives, you should not be inviting or encouraging any sulfide mining to contaminate our Oneida County’s water ecosystem for hundreds of years. You should not be taking it upon yourselves to open up our county forest lands to this sort of misuse. The planning and development committee is using the ordinance to change the permitted use language in section 9.20 that currently prohibits metallic mining in all Forestry zones. That change will allow mining in other parts of the county zoned 1A Forestry, both public and private land.
Our Northwoods economy does not need Sulfide Mining. We are a water-based recreational area. Our tourism economy is based on fishing, camping, resorts, summer camps, and hundreds of miles of forested trails. Visitors to Oneida County spent $221.8 million in 2016. That’s an increase of 2.74 percent over 2015, according the Rhinelander Area Chamber of Commerce.
We do not NEED Sulfide Mining. And if, as representatives of the people of Oneida County, you lack the courage to stand up to Senator Tiffany and his out-of-State mining interests, then you will endanger the health of our citizens, as well as our natural resources....for many, many generations. As our County Board, you gentlemen need to represent the people of Oneida County! We are counting on you!
Metallic Mining is site-specific. Sulfide Mining does not belong in the wetlands of Wisconsin Think twice about this, please. You’ll NEVER be able to undo the damage to our Oneida County water ecosystem. You’ll never be able to undo the damage to our economy, health and safety of all that live up here.
In closing, I want you all to consider the real reason you are sitting before all of us today. You all have to remind yourself that you were not voted in by anyone other than your constituents. You were not put in place by Senator Tiffany, Governor Walker, or Aquila mining company up in Canada. It is your job to do the will of the people that voted you in. You owe it to everyone (all of us in this room, as well as those who aren’t). You owe it to our vacationers. To yourselves and your families. And you owe it to those “downstream”...to do what is right. You may be making decisions that most likely will affect your children and grandchildren. And you will have that as your legacy.
Presented by Rick Plonsky, Harshaw
Gentlemen, I have read through the P&D committee's proposed ordinance and am disturbed by it in many ways. However, in the interest of brevity I will address what I think is the most significant shortcoming of your amendment to 9.61: Land use and zoning.
Unfortunately, Senator Tiffany's Bill, Act 134, strips away most local control from counties and municipalities to regulate non ferrous metallic mining. But, it does not strip away the county's ability to regulate land use through zoning, nor does it compel the county to allow sulfide mining on Oneida County Forest land, land owned by the citizens of Oneida county.
To date, the only significant ore deposit of value to mining companies is located on a piece of Oneida County Public Forest. The sulfide ore lies under fifty feet of water, and within one half mile of the Willow river. The Willow Flowage is designated by the State of Wisconsin as an “Outstanding Water Resource.” “Of Wisconsin’s 15,000 lakes and impoundments, 103 are designated as an Outstanding Water Resource—fewer than 1% .” 1
According to the WI DNR, Outstanding Water Resources “warrant additional protection from the effects of pollution.“ Also, according to the DNR, “The Willow Flowage Scenic Waters Area is isolated from roads and development. This remoteness, along with its natural shoreline, draws visitors from around the state and region.”2
The Willow Flowage is a rare jewel that should be protected at all costs, not exploited and put at grave risk for limited short term economic gain. Regardless of assurances to the contrary, sulfide mining cannot be accomplished without damaging surface water. If it could, Senator Tiffany would not have authored Act 134 to eliminate the “Prove it First,“ Moratorium on sulfide mining. Mining companies would simply have used scientific evidence to allow the permitting process to take place. That evidence does not exist.
“Fisheries have been impaired world-wide by releases of Acid Mine Drainage from mining areas. The mining industry has spent large amounts of money to prevent, mitigate, control and otherwise stop the release of Acid Mine Drainage using the best available technologies, yet Acid Mine Drainage remains as one of the greatest environmental liabilities associated with mining, especially in pristine environments with economically and ecologically valuable natural resources.” 3
The P&D committee, and the Board can protect the Willow, by simply prohibiting mining on County Forest Lands. The County Forest belongs to the citizens of Oneida county, and the water of the Willow Flowage belongs to the citizens of Wisconsin. You have the power to protect both. Just say NO! To do otherwise is simply reckless, and puts our water, our fishery and our $229M per year tourism economy at great risk.
Additionally, the P&D Committee's current revision of 9.61 N. (2) changes permitted use in land zoned 1-A Forestry and General Use. Currently, no metallic mining is permitted in either zone, only land zoned Manufacturing and Industrial can be utilized for mining. This change is a mistake, common sense should relegate mining to land zoned Manufacturing and Industrial since it is an industrial use, just like our landfill. This protects other landowners, our water resources, and our environment from inappropriate siting of mines. The P&D committee should revise 9.61 N (2) accordingly.
Presented by Al Gedicks, Executive Secretary, Wisconsin Resources Protection Council
Oneida County has the highest percentage of wetlands in the state of Wisconsin. It also has the highest percentage of County lands mapped as wetland. The proposed Lynne mine site is nearly all wetlands. This poses a significant risk for both aquatic resources and human health from mercury methylation, the most dangerous form of mercury.
The discharge of sulfate from extraction and processing of sulfide minerals can stimulate the conversion of mercury in wetlands to methyl mercury. Bacteria that are common in wetlands and lakes transforms the heavy metal deposited by air into something that can be transported up the food chain — from micro-organisms to fish to pregnant women. The methyl mercury that bioconcentrates through the food chain increases impacts on both aquatic resources and human health.
The sulfate discharges into the water, the sulfur compounds into the air, and mercury into both air and water, plus flooding and destruction of wetlands, creates the perfect storm to produce huge increases in the amount of methyl mercury in fish as a result of bioaccumulation, from the very smallest organisms in the water up to the largest fish, that can result in an increasing concentration of a million times.
Methylmercury can be absorbed much more easily than mercury into the bodies of insects and other small organisms. When these small organisms are eaten by bigger living organisms such as fish, the heavy metals enter the fish. Those metals can remain in the fish for extended periods. As the fish eats more of the smaller organisms the amount of heavy metals increases.
And we, as human beings, as well as wildlife — we're at the top of the food chain. And the fetus is at least five times more sensitive to the effects of mercury as an adult. Mercury is a potent neurotoxin that can affect the brain and nervous system development in fetuses, infants and children. In Minnesota's Lake Superior region, already one out of 10 newborns are born with levels of mercury in their blood that exceed safe levels — levels of mercury that are high enough to show in scientific literature a correlation with decreased IQ.
Methylmercury contamination will have a disproportionate impact upon the Lac du Flambeau Ojibwe
The Willow Rapids are immediately downstream of the proposed Lynne mine and is an important walleye spawning ground. DNR staff surveyed the Willow Flowage and noted "excellent population level/ standing stock; outstanding size structure of stocks and/or trophy fishing; endangered, threatened or watch list aquatic species or unique strains." The survey supported the Willow's classification as Outstanding Resource Water (ORW), which gives the Willow Flowage non-degradation status.
Mine waste discharges upstream would degrade water quality in the spawning area and the flowage. Methylmercury contamination of walleye and other fish species would have a disproportionate health impact upon the Lac du Flambeau Ojibwe, who have a greater reliance on fish consumption than the non-Indian population. This is the textbook definition of environmental racism where minority populations suffer a disproportionate health impact from toxic waste discharges.
The Lac du Flambeau Tribe, in a letter dated April 11, 2018, to Oneida County Board Chairman Dave Hintz, expressed the Tribe's concerns related to mining activities and invited the Oneida County Board to meet with the Lac du Flambeau Tribal Council. The Tribe never received a response, nor has there been notice of consultation with the Tribe, by either state of federal officials related to this issue.
A May 14, 2018, Tribal Resolution stated that "the Tribal Council is extremely concerned how proposed commercial mining activities within Oneida County, which is located within the 1836 and 1842 Ceded Territory, could negatively impact treaty protected hunting, fishing, and gathering by Tribal members."
The resolution resolved "that the Tribal Council hereby states that it will seek any and all legal avenues to challenge any mining activity in the Town of Lynne and/or the County of Oneida that would negatively impact the Tribe's hunting, fishing, and gathering rights; disturb any historical sites and/or negatively impact the environment within the 1836 and 1842 Ceded Territory.
Mining projects lacking a "social license to operate" can result in local resistance to environmentally destructive activities and encourage a militarized response where mining companies hire private security firms to repress democratic expressions of resistance.
The reason why Oneida County is contemplating overturning the previous policy of excluding metallic sulfide mining from county forest lands is the legislation promoted by Sen. Tom Tiffany and the mining industry lobby which repealed Wisconsin's Prove it First Mining Moratorium. Public opinion polling prior to the repeal of Prove it First found that 72 percent of Wisconsin residents wanted to keep Prove it First protections from mining pollution. After just two weeks of circulating a petition of public opinion, over 300 property owners in Oneida County indicated they were against mining in lake/wetland rich Oneida County. There were no votes for mining, even when a possible economic boom was pointed out.
If resort owners, property owners, environmental groups and the Lac du Flambeau Tribe are united in opposition to any metallic sulfide mining in Oneida County, this is clearly an entire community saying no to mining — there is no "social license to operate" here. Yet Sen. Tiffany was quoted saying that "You have to get that social license to mine. It's the price of doing business these days for a mining company."
The last time Sen.Tiffany changed the law to promote mining was the ill-considered Gogebic Taconite iron mine in the Penokee Hills. When it became clear that there was widespread opposition to an open pit mine next to Lake Superior, Gogebic Taconite hired a private security firm that placed armed guards with automatic rifles and camouflage uniforms in county forest land around the proposed mine site. If Oneida County lands are opened for mining in the face of widespread local opposition, how long will it be before we see armed guards protecting mining operations from democratic dissent?
Respect the will of the people, Reject sulfide mining in Oneida County.
By Al Gedicks, Executive Secretary,
Wisconsin Resources Protection Council
May 30, 2018
Wisconsin counties urged to adopt mining regulations by July 1, 2018
With the repeal of Wisconsin’s Prove It First Mining Moratorium Law, the state of Wisconsin now claims that it has the authority to assert that counties have until July 1, 2018 to enact mining regulations, mining ordinances or zoning ordinances to regulate metallic sulfide mining. We would assert that state preemption of counties passing mining bans is not justified or legally valid when such preemptive actions violate county elected officials’ duty (and oath of office) to protect “the health, safety and welfare” of their communities. Nor is a state imposed deadline on such passage valid for the same reason. Even the bill’s chief author, State Sen. Tom Tiffany, told a reporter that “You have to get that social license [community acceptance] in order to mine.” He said he didn’t include any language in the bill pre-empting local governments inherent right to protect their citizens.
Marinette County says metallic sulfide mining is a “prohibited use”
On May 29, 2018, the Marinette County Board adopted an ordinance listing “nonferrous metallic mining” as “a prohibited use and shall not be considered a part of the specified uses except as allowed by a local agreement.”
Can metallic sulfide mining be regulated?
A recent literature review for the U.S. Fish and Wildlife Service concludes that permitting large scale surface mining in sulfide-hosted rock with the expectation that no degradation of surface water will result due to acid generation imparts a substantial and unquantifiable risk to water quality and fisheries.
Community Rights Ordinances Can Prevent, Rather than Regulate Destructive Mining Activity
Since the early 2000s, about 200 communities and counties in nine states have passed legally groundbreaking and locally enforceable Community Rights ordinances that ban harmful corporate activities and protect the community’s rights to govern itself.
In November 2014 residents of Mendocino County, California, passed the Community Bill of Rights Ordinance by 67% of the county vote. The Ordinance bans fracking, dumping of frack waste and protects their water from being used for fracking anywhere in the state. Mendocino County became the first California community to adopt a Community Bill of Rights, placing their interests above corporate interests. Residents see the enactment of this ordinance as the first step in asserting their right to local self-government, and a rejection of the idea that their community will be a sacrifice zone for corporate profits.
Here is what Paul Cienfuegos, the founding director of Community Rights US had to say about the July 1st deadline for enacting zoning and mining ordinances after the repeal of Prove It First:
“This state-imposed deadline is also one that municipalities and counties have every right to refuse to abide by. Local elected officials need to start acting as if they understand that they are the duly elected representatives of The People of that community or county. They’re not there to salute every time the state takes some of their local power and authority away. Some day the local elected officials will start to understand this, and act upon that understanding, as hundreds of elected officials from those 200 communities and counties already do, where Community Rights ordinances have already been passed.”
“Dark money” behind the repeal of Prove It First Mining Moratorium
The effort to repeal Wisconsin’s landmark Prove It First Mining Moratorium Law was a profound assault on the democratic process initiated at the grassroots level that led to bipartisan support for the legislation in 1998. The repeal campaign, led by Sen. Tiffany (R-Hazelhurst) had the support of the most powerful corporate interests in and out of the state, including Wisconsin Manufacturers and Commerce, the state’s largest business group, Aquila Resources, a Canadian mining company, and Americans for Prosperity, a dark money electioneering group created by the billionaire brothers Charles and David Koch.
The Community Rights movement is a reminder that government is required to serve us. The Wisconsin Constitution is clear on this point. Article 1, Declaration of Rights states: ”governments are instituted, deriving their just powers from the consent of the governed.”
Contrary to the dire predictions of attorneys for local governments, the vast majority (95%) of Community Rights Ordinances have never been challenged in court. Faced with the prospect of permanently contaminated drinking water supplies or a possible court challenge to local self-government, which is the riskier possibility? 200 communities and counties in nine states have decided they’d rather face the possible lawsuit.
(This article is an edited excerpt from the Wisconsin Resources Protection Council newsletter. Used with permission.)
OCCWA Staff Report
May 13, 2018—After months of laboring over an extensive revision of the Oneida County’s metallic mining ordinance (9.61), the county board’s five-member Planning and Development Committee signed off this week on its final draft and began preparing for presenting it to the public. The required public hearing will be held June 6, 6 pm, in the Rhinelander High School auditorium.
The revision was necessary after the passage into law of State Sen. Tom Tiffany’s “Mining for America” bill in December, known as the 2017 Wisconsin Act 134. The Act, which goes into effect July 1, lifted the state’s moratorium on metallic mining, in effect for the past 20 years.The moratorium had required that applicants for approval of a sulfide mine demonstrate to the DNR that a sulfide mining operation in the U.S. or Canada had operated for at least 10 years without polluting surface water or groundwater and that such mine had been closed for 10 years after mining without polluting surface water or groundwater.
The Oneida County P&D Committee was charged with re-writing the county’s ordinance to conform with Act 134, which left little leeway for the stronger environmental protections that are in the original mining ordinance. Mike Fugel, one of the P&D’s lawyers specializing in mining, told the committee many times, “The overarching theme of this [re-write] is, you can’t require more than the State requires. You have to be backtracking along with the State requirements.”
So, what is being changed? What do citizens need to know, going into the public hearing?
1. First, it’s important to understand that while the neither the current ordinance nor the new one refer to “sulfide mining,” sulfide is the major component of mining in the three major deposits found in Oneida County. The mining would be for copper ore, zinc, nickel and precious metals; the hard rock these metals are found in is sulfide-bearing rock. Sulfuric acid is created when sulfides are released through the mining process and exposed to air and water.
2. The current ordinance says that non-ferrous metallic mining is prohibited in all zoning districts other than the #08 Manufacturing/Industrial zoning district. The new ordinance opens up mining exploration in the following zoning districts: District 1-A Forestry (167,000 acres of publicly-owned land); District #8 Manufacturing and Industrial; and District 10 General Use.
3. Instead of requiring a Conditional Use Permit (CUP) for mining operations, a one-time permit into which restrictions can be applied, the new ordinance requires simply a permit, subject to review by the P&D. The timeline of 60 days for reviewing the scope of the county baseline study in the current ordinance has been dropped, as has the 120-day review period of the application, and the 90-day period before recommendation or denial of the CUP. There is no mention of a second hearing by the County Board.
4. The permitting process follows a new procedure, triggered by a mining company’s expressed intent in applying for a permit. A committee will be formed, known as the Local Impact Committee for Nonferrous Metallic mining, or Mining oversight/Local Impact Committee (MOLIC). This committee will be composed of a group of individuals who will play a significant role. Lawyer Mike Fugel told the committee: "Ultimately, the local agreement is going to be the lynch pin in terms of someone having a mining operation." The new ordinance doesn’t spell out who chooses who is to be on this committee, or its make-up. Will the affected town’s interests be adequately represented? Is there a danger of loading up the committee with either pro- or anti-mining? The committee is given the power to negotiate the Local Agreement with the town where the mine would be. The Local Agreement receives a public hearing, and a vote of a simple majority by the County Board, after which the mining company can be permitted.
5. The current ordinance prohibits the process of solution mining, smelting or refining, and disposal of mining wastes at a mining site in the county. This has been dropped from the re-write.
6. Financial responsibility for the applicant has been watered down. The current ordinance states a certificate of insurance certifying the applicant as an active liability insurance policy deemed adequate to cover all mining activities, for no less than $25 million, and must emain in effect for 40 years following the permanent closing of the mine. The re-write shortens the time required for the insurance provisions to remain in force—only through the reclamation operations—and specifies that impairment liability coverage be “not less than $10 million per claim, and $10 million in aggregate.” Sen. Tiffany attended the P&D Committee on Wednesday to reassure it that the changes to the financial assurance requirements in 2017 Wisconsin Act 134 were sufficient to cover damages at a mining waste site, for up to 250 years after closure. The new financial assurance requirements need to be studied carefully to see if, as claimed, they are sufficient.
7. Bulk sampling, part of the process for determining the quality of a deposit, is defined under the new re-write (9.62) as excavating “less than 10,000 tons of material, including overburden [covering rock] and any other material removed from any portion of the excavation site.” There is no language provided for monitoring or regulating this process, and the duration of the moratorium "shall be in effect for 18 months up to and including January 1, 2020."
8. Through the passage of 2017 Wisconsin Act 134, the state has opened its doors to mining. Environmental standards have been lowered. For instance, Act 134 states that “groundwater contamination enforcement standards do not apply below the depth in the Precambrian bedrock below which the groundwater is not reasonably capable of being used for human consumption.” Current law states that “groundwater standards generally apply from the land surface down through all saturated geological formations.” Act 134 “eliminates special administrative code provisions applicable to impacts to wetlands caused by a nonferrous [sulfide] mining operation.” Under the current law, generally applicable wetlands requirements apply to a mining site. The area cited for mining in the Town of Lynne is a vast wetland.
9. Can the Town of Lynne just say No to mining? According to lawyer Mike Fugle at the committee meeting on Wednesday, "A town could say no to mining, we’re never going to agree to a mine; but that would likely open a town up to litigation." Committee Chair Scott Holewinski added, "MOLIC would be the town’s level of participation. It would be veto power for town. Like the county can’t just say no to mining, nor can the town. They have to have good reason to say no."
The state’s 72 counties will be dealing with increased pressure from mining companies to issue permits. Oneida County in particular will be targeted. Citizens will need to inform themselves about the new law, and think hard on how mining would affect the county’s forests, wetlands and water bodies—the life breath of its $221 million/year tourist industry.
OCCWA Staff Report
May 5, 2018--At Friday's P&D Committee meeting, three out of five members were present, enough for a quorum, and they used it to make important changes to their current draft of the Oneida County Zoning and Shoreland Protection Ordinance, Article 6, Section 9.61, which addresses regulation of metallic mineral exploration, bulk sampling and mining in the county.
The current Ordinance states "Special Conditional Use Permit Required. Mining and prospecting operations and mining site whether conducted or located in whole or in part within this county may be allowed under a special conditional use permit in accordance with the provisions of this section, but only in the #08 Manufacturing/Industrial zoning district."
The most significant change requested was to ask the committee's lawyer, Bill Scott, to adjust the draft to rezone county-owned forest lands (1-A) for permitted use of metallic mining, as well as the General Use zone. This would be in addition to the current Ordinance's #08 Manufacturing/Industrial zoning district. They also voted to eliminate the need for a CUP, and go only with the permitting process, with "General Standards" applying. Committee members voting were County Supervisors Jack Sorenson, Scott Holewinski and Ted Cushing. Billy Fried and Mike Timmons were absent.
Bill Scott told the committee that the mining district "has to include more land, you need to add land to it to be attractive to mining companies." With more land use open to mining, "you can do away with Conditional Use Permitting (CUPs), and just go with Permitted Use, and General Standards would apply." Scott noted that the Committee would likely run into incompatible standards for mining in some districts, but he felt that forestry would not be incompatible for mining. "You can reclaim forest lands. The mine is a temporary thing. You can restore forestry use [when the mine is closed]...The 1-A zone looks considerable in size, and may be sufficient."
Other proposed changes to the mining ordinance reflect the Committee's desire to receive proposals from mining companies. The Committee is intent on establishing a Joint Local Mining Impact Committee for reviewing applications as soon as they are filed with the County. The composition of the Committee has to be worked out, but may include committee chairs, town chairs and others.
If the Committee gets its way, the Northwoods as we know it will change. Wherever there is a mineral deposit, even in county forest lands, the land could be destroyed for a mine and subject to sulfide runoff. Mining companies, along with their promoters among the Wisconsin Assembly and Senate, will make a case for how good the technology has gotten and how responsible mining companies are for cleaning up their waste sites. But their claims are undermined by the government's lifting of the Prove-It-First Moratorium Law last year, that had been in effect for 20 years and which stated that no company would be given a permit without proving it had a record of restoration lasting 10 years.
Here is a short video taken yesterday by Eileen Lonsdorf of a piece of Oneida County-owned forest land in Woodruff. The spring peepers are joyous with the warm weather. This area could be subject to mining.