Review to be first phase before revising ordinance

BY NAOMI KOWLES

FOR THE STAR JOURNAL

The Oneida County Board approved a resolution Tuesday to amend the 2018 county budget and hire attorney William Scott from Mallery & Zimmerman to review the county’s existing metallic mining ordinance.

County Board chairman Dave Hintz said the purpose of the review is to identify elements of the ordinance that are outdated or no longer enforceable after Gov. Scott Walker signed the “Mining for America Act” on Dec. 11 to end the state moratorium on the issuance of permits for sulfide ore mining.

Hintz said counties have been given until July 1 to adopt or amend existing zoning regulations to reflect these changes in state law. The resolution passed at Tuesday’s meeting comprises “Phase One” of Oneida County’s process of adjusting its ordinance to adhere to the new legislation. The estimated cost for the analysis is between $7,000 and $10,000, with the higher estimation including two meetings in person with Scott at $1,500 a meeting.

Hintz said the county hopes to have this initial phase completed by March 15, or by the end of March if complications arise. Phase Two, which was not part of the resolution approved by the County Board, would involve having Scott prepare revisions suggested in Phase One and cost an additional $5,000 to $12,000.

Hintz said the June County Board meeting is the target date for having the amended ordinance up for a vote. He also noted the first phase of the process is to look at the current mining ordinance and identify deficiencies and unenforceable or outdated items.

From right, Oneida County supervisor Robb Jensen urges supervisors at Tuesday's meeting to hold off on hiring outside legal counsel to review the county's metallic mining ordinance while supervisor Mitch Ives looks on.

“The other reasons are the new rules call for something called bulk sampling, which allows mining companies to sample the rocks, up to 10,000 tons – some people call it mini-mining,” he said. “Our current ordinance never addressed bulk sampling. That was not even thought of when we did our ordinance 20 years ago.

“The state of Wisconsin also separated ferrous from non-ferrous mining in its current rules. Our current statute says just mineral, metallic mining…. Ferrous mining is iron mining, basically. Non-ferrous mining is things other than iron mining, like sulfide mining.”

The Mining for America Act eases permitting regulations on sulfide mining, repealing the requirement that mining applicants demonstrate a sulfide mine in the United States or Canada operated for at least 10 years and has been closed for an additional 10 years without polluting surface water or groundwater.

Hintz said he was advised by Wisconsin Legislative Counsel attorney Larry Konopacki, while participating in the Mining 101 seminar for county and town officials Jan. 24 in Minocqua, to hire an attorney to evaluate the current Oneida County code on mining, because Konopacki believes portions of it are currently unenforceable.

Andy Phillips, general legal counsel for the Wisconsin Counties Association, said at the Mining 101 seminar the WCA will be putting together a manual outlining best practices and recommendations for mining under the Mining for America Act. Hintz said this manual had a projected release of about a month, and he expects it now within two to three weeks.

During the board’s discussion on the resolution to hire Scott to review the metallic mining ordinance, Supervisor Robb Jensen spoke in opposition.

Jensen introduced a motion to hold off on having Scott analyze the existing ordinance until the WCA completed putting together the best practices manual. He noted that if public hearings were not held until May, under the current timeline, it was unlikely that the revised ordinance would be completed by the June County Board meeting.

“July 1 is driving us without having enough info,” Jensen said.

Oneida County corporation counsel Brian Desmond urged supervisors at Tuesday's meeting to have revisions approved to the county's metallic mining ordinance so that they could take effect July 1.

Hintz said it would be difficult for supervisors to move forward without understanding what’s wrong with the current ordinance. He urged the board members to hire Scott to begin reviewing the ordinance before the WCA’s best practices manual is put together.

“We have what I think is a flawed ordinance on the books,” Hintz said. “Whether you’re pro-mining or very protective of our environment, we want a solid ordinance that’s enforceable on the books.”

Supervisors voted down the motion to delay hiring Scott with Jensen providing the only vote in favor.

County corporation counsel Brian Desmond said it would be important to have the ordinance reviewed and amended in time for the July 1 deadline.

“If someone comes to us on July 2, and our ordinance has portions that are unenforceable, Karl [Jennrich, director of the Planning and Zoning Department] has to process, and the county has to process that permit based on the ordinance that’s on the books at that point in time,” Desmond said. “I think the importance of the July 1 date for Oneida County is to have an enforceable ordinance on the books at that point in time so that if someone does come in a day, two days, or a month down the road, we have an ordinance in place that is enforceable and takes into account everything that Oneida County may wish to have in the books in order to regulate mining.”

Desmond also said he doubted anyone would approach the county with a mining permit application prior to July 1, considering it would be more difficult to obtain a permit for sulfide ore mining before the Mining for America Act takes effect.

Hintz said Scott was recommended to the board based on his extensive qualifications in environmental and natural resources law, along with the fact that he has worked for Oneida County in the past and is a geologist.

Both Hintz and Desmond pointed out that Desmond and his office were not equipped or qualified to do a thorough review of the ordinance.

The Mining for America Act is particularly relevant to Oneida County due to the Lynne Deposit located on county forestland in the town of Lynne. The mineral deposit was discovered in 1990 by Noranda Exploration and, according to the Wisconsin Department of Natural Resources, is estimated to contain about 5.6 million tons of recoverable material rich in copper, zinc, lead and silver.