Environmental Impact Statement Not Needed For Winona County Frac Sand Mine

Minnesota case law summary by Attorney Richard Clem: Environmental Impact Statement.

In the Matter of Whether There is a Need for an Environmental Impact Statement (EIS) Regarding the David Nisbit Quarry Conditional Use Permit Application to Extract Industrial Sand. MN frac sand

In 2011, David and Sherry Nisbit, owners of land in Winona County, proposed a silica sand mining project, which was to be managed by Tom Rowekamp, the CEO of a mining company. The sand would be shipped out of state for use as a poppant for hydraulic fracturing of hydrocarbon wells. They applied to the county board for a conditional use permit, which was eventually granted. In particular, the county board had determined that an environmental impact statement was not required.

A number of residents of Winona County were concerned about this turn of events, and they filed two petitions for a writ of certiorari with the Minnesota Court of Appeals. They were represented by attorney James P. Peters of Glenwood, Minnesota.

The Court of Appeals, in a 24 page opinion authored by Judge Connolly, held that substantial evidence supported the board's findings. For that reason, the Court affirmed the board's decision. In so doing, the Court of Appeals held:

To determine whether the cumulative potential effects of a proposed project results in significant environmental effects, the responsible governmental unit must consider, (1) whether the cumulative potential effect is significant, (2) whether the contribution from the project is significant when viewed in connection with other contributions to the cumulative potential effect, (3) the degree to which the project complies with approved mitigation measures specifically designed to address the cumulative potential effect, and (4) the efforts of the proposer to minimize the contributions from the project.

Nos. A13-0745 and A13-1198 (Minn. Ct. App. June 16, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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