Build it and They Will Come for Gravel

• Publication year: 2002
• Pages: 67
• Citation: Vol. 31 No. 2 Pg. 67

31 Colo.Law. 67 Colorado Lawyer 2002.

2002, March, Pg. 67. Build It and They Will Come for Gravel

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67

Vol. 31, No. 2, Pg. 67

The Colorado Lawyer
March 2002
Vol. 31, No. 3 [Page 67]

Specialty Law Columns
Natural Resource and Environmental Notes
Build It and They Will Come for Gravel
by Lori Potter, Star L. Waring

This column is sponsored by the CBA Environmental Law, Water Law, and Mineral Law Sections. The Sections publish articles of interest on local and international topics

This month's article was written by Lori Potter, Denver a member of the firm of Kelly-Haglund-Garnsey-Kahn LLC, where she practices environmental, public lands, and land use law including the representation of landowners affected by mineral development - (303) 296-9412. Star L. Waring, Denver, is Of Counsel to the law firm of Harvey Curtis and Associates, and practices water, environmental, and real estate law - (303) 292-1144. The authors acknowledge the assistance of Greg Roush and Katie Fendel of Leonard Rice Engineers.

This annotated overview of environmental and water
issues related to construction materials mining addresses the complex federal, state, and local regulatory schemes that apply to mining construction.

Construction projects abound - commercial, residential, and resort projects; new highways; lane additions; and routine highway maintenance. These developments and their impacts generally are viewed through the prisms of sprawl and land use management. A less commonly considered impact is the effect of mining the sand and gravel that are essential to all of this construction. In a state experiencing the kind of growth that Colorado has seen, and expects for the future, construction materials mining is a pervasive environmental issue.

In a study conducted in 2000, the Western Slope Environmental Resource Council found that over 1,000 acres in at least fourteen Colorado river channels are currently mined for sand and gravel.1 Approximately 40,000 more acres are mined in the floodplain. The effects of mining gravel directly from river channels include channel instability, loss of floodplain function, damage to private property along riverbanks, and degradation of water quality and wildlife habitat. The impacts of mining gravel from the floodplain can include elimination of riparian vegetation, which is a critical part of wetland functioning, wildlife habitat, and floodplain stability.2

The permitting and regulation of gravel mining involves federal, state and local governmental authorities. At a minimum, it involves the laws of mining, water rights, zoning, wetlands, water quality, access, and air quality. This article surveys the principal environmental and water issues encountered in construction materials mining.

State Mining Permit

The state of Colorado issues permits for sand and gravel mining under the Colorado Land Reclamation Act for the Extraction of Construction Materials ("Construction Materials Act").3 The Construction Materials Act aims to balance the extraction of construction materials with the need to reclaim affected land and to conserve other natural resources.4 The Construction Materials Act and its numerous regulations5 provide a detailed regulatory scheme. However, only the principal provisions touching on environmental issues are noted in this article.

An applicant for a construction materials permit must submit a reclamation plan that demonstrates the following, among other things:

1. Disturbances to the prevailing hydrologic balance of the affected land and the surrounding area, and the quality and quantity of surface and groundwater systems, will be minimized, both during and after mining and during reclamation.

2. Disposal of mined material will not result in an unauthorized release of pollutants to the surface draining system.

3. No unauthorized release of pollutants to groundwater will occur within the permit area.6

The Construction Materials Act also requires a financial warranty of responsibility for reclamation costs. Such warranty must be posted prior to issuance of a permit.7

The Construction Materials Act is administered by the Mined Land Reclamation Board ("MLRB"),8 and the Division of Minerals and Geology within the Department of Natural Resources provides the staff function. An applicant for a construction materials permit must ensure that the operation complies with the land use regulations and master plans of local governments.9 The MLRB has grounds to deny a permit if the proposed mining operation will adversely affect the stability of significant permanent...