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Proposed Frac Sand Ordinance Gets Tough

According to the Caledonia Argus, a frac sand ordinance presented at a special joint meeting of Houston County, Minn., board, the frac sand study committee and the county planning commission, is certainly stringent.

The county’s attorney in the matter, Jay Squires, presided over the meeting and offered several suggestions about what the county should do to really seal the regulations and make them defendable in court. Squires repeatedly said that any decision has to be based on sound reasoning. By the evening’s end several examples of how this philosophy impacts regulation surfaced.

Interim versus conditional
Squires introduced the concept of Interim Use Permit (IUP), and encouraged the county to consider that terminology over the Conditional Use Permit (CUP) the county traditionally gives out. Minnesota statutes define IUP: “An interim use is a temporary use of a property until a particular date, until the occurrence of a particular event, or until zoning regulations no longer permit it.” Additionally, “Zoning regulations may permit the governing body to allow interim uses. The regulations may set conditions on interim uses.”

Nonconformities/registered mines
The county is reportedly being litigated against by a landowner that has a CUP for mineral extraction and says frac sand mining falls under the accepted uses of that CUP. In an effort to avoid such sticky ground – and more litigation – Squires recommends adding into the county’s draft ordinance on industrial mining a section specifically pertaining to those who possess a CUP. His recommendation includes: “Mining and extraction operations operating with a valid Conditional Use Permit issued by Houston County prior to the adoption of this chapter, which remain in compliance with the terms and conditions of the CUP, shall be permitted to continue until the permit has expired. Any expansion or change in the operation shall require a new CUP.”

Density restrictions
When the county sent its draft ordinance over to Squires for review they had a density restriction of six – meaning that no more than six excavation or mining sites shall exist in Houston County at one time. Squires said the county certainly has the ability to regulate density, but he recommends the number reflect some sort of rationale. He said it would behoove the county to come up with a quantitative limit based on any number of variables.

Road agreement
He said state law defends the county’s need to remain fiscally whole despite large projects/mines and defends the county’s need to address traffic safety concerns. Essentially, the law allows the county to require that money be set aside up-front and preserved in an account for road maintenance issues – subject to county control – that might present themselves because of a project.

In light of the fact that there is much to chew on and much to refine within the draft ordinance, Squires suggested the county consider extending the frac sand mining moratorium – a suggestion duly noted by the county board.