Chapter § 13.3 Mining on Private Lands

• Jurisdiction: Washington

§13.3 MINING ON PRIVATE LANDS

Parties engaging in mining operations on private lands are subject to use regulations administered by Washington state or federal agencies as well as local regulation. An array of permits and approvals must be obtained from the appropriate state and federal agencies and county offices.

Case Study: The complexity and difficulty of obtaining entitlements for a sand and gravel pit operation, including construction of supporting infrastructure such as a pier, is demonstrated by the Maury Island Mining Project proposed by Northwest Aggregates (also known as "Glacier Northwest"). Northwest Aggregates' proposal to expand an existing mine on Maury Island and construct a pier for transporting sand and gravel by barge faced an environmental review and decision-making process that lasted longer than 10 years. The process required Northwest Aggregates to obtain local permits from King County, state agency approvals, and federal approvals, including a shoreline permit and a revised grading permit from King County; an aquatic lands lease and a revised surface mining reclamation permit from the Department of Natural Resources (DNR); a National Pollutant Discharge Elimination System (NPDES) permit from the Washington Department of Ecology (DOE); a Hydraulic Project Approval from the Washington Department of Fish and Wildlife (DFW); compliance with the Model Toxics Control Act (MTCA), Chapter 70.105D RCW; and permits to construct the pier issued under §10 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S.C. §403 (Section 10), and under §404 of the Clean Water Act, 33 U.S.C. §1344. Northwest Aggregates prepared an environmental impact statement (EIS) under the State Environmental Policy Act (SEPA), Chapter 43.21C RCW, in obtaining county approvals, and federal permits included review processes under the Endangered Species Act (ESA), 16 U.S.C. ch. 35; the National Environmental Policy Act (NEPA), 42 U.S.C. ch. 55; and Section 10. See Pres. Our Islands v. King Cnty., SHB Nos 04-009 & 04-010, 2004 WL 2494387 (Findings of Fact, Conclusions of Law and Order) (Nov. 3, 2004), http://www.eho.wa.gov/searchdocuments/2004%20archive/shb%2004-009%20final.htm

After prevailing in prior appeals and commencing construction of the pier, Northwest Aggregates was enjoined by the federal district court from taking action under its Section 10 permit until federal agencies completed an EIS under NEPA and a formal consultation under the ESA. This decision is noteworthy for its ruling on cumulative environmental impacts, demonstrated by the court's concern that "every project has the potential to incrementally increase the burden" upon ESA-listed species and Puget Sound. Id. (Findings of Fact, Conclusions of Law and Order at 20); cf. Pres. Our Islands v. Shorelines Hearings Bd., 133 Wn. App. 503, 520, 137 P.3d 31 (2007), review denied, 162 Wn.2d 1008 (2008). The final response to all the litigation was for Northwest Aggregates to sell the property to the state.

The two agencies most involved in the regulation of mining on state and private lands are DOE and DNR. DNR is solely responsible for issuing reclamation permits, which are required before any surface mining may commence. DOE is responsible for permitting wastewater discharges, water rights, air contaminant sources, and dam construction, and often provides technical consultation to local jurisdictions on SEPA compliance. DOE also approves shoreline master programs (SMPs) under the SMA, Chapter 90.58 RCW, which regulate mining in shoreline areas, including floodplains, and approves shoreline conditional use permits for this activity.

Reclamation of mining sites is subject to exclusive state regulation, but counties and municipalities may require utility permits, county road agreements, surface water drainage plans, grading permits, or other appropriate permits, plus compliance with SEPA. As set out below, under SEPA "substantive authority," local and state agencies with jurisdiction are provided broad power to impose project mitigation for mining activity and, under the right circumstances, could prohibit mining for undue environmental impacts even if the activity is allowed under the zoning code.

(1) Mineral resource land designations—GMA

The state legislature in 1990 mandated the "need to preserve and utilize the remaining resource lands," to protect these lands from "incompatible uses," and to "maintain and enhance natural resource-based industries" as set out in the GMA. See Preserve Our Islands, 133 Wn. App. at 520. The law requires local governments to designate "[m]ineral resource lands that are not already characterized by urban growth and that have long-term significance for the extraction of minerals." RCW 36.70A.170(c).

In drafting the GMA, the legislature recognized that although mineral resources are vital to our communities, mineral resource lands tend to invoke a strong "not in my back yard" sentiment. See William S. Lingley, Jr. & Stephen P. Jazdzewski, Dep't of Natural Res., Aspects of Growth Management Planning for Mineral Resource Lands, Washington Geology, July 1994, at 36, http://www.dnr.wa.gov/Publications/ger_washington_geology_1994_v22_no2.pdf. Consequently, the legislature mandated that natural resource lands be designated first and protected to preserve natural resource lands of long-term commercial significance. RCW 36.70A.170; see also WAC 365-190-040(2). In other words, when local governments designate natural resource lands, "the land speaks first." See Bremerton v. Kitsap Cnty., CPSGMHB No. 95-3-0039, 1995 WL 903165 (Final Decision and Order at 31) (Oct. 6, 1995), http://www.gmhb.wa.gov/LoadDocument.aspx?did=1889.

Mineral resource lands are "lands primarily devoted to the extraction of minerals or that have known or potential long-term commercial significance for the extraction of minerals." WAC 365-190-030(13). The Department of Commerce (DOC) has promulgated regulations that guide the classification of mineral lands. RCW 36.70A.050; WAC 365-190-070. These regulations were revised effective February 19, 2010. See Wash. St. Reg. 10-03-085 (Jan. 19, 2010).

Most importantly, the obligation to designate sufficient mineral resource lands is a continuing one. In 1998, the GMA was amended to mandate review of existing mineral lands designations and the revision of GMA land use maps to take into account new information relating to mineral deposits. See RCW 36.70A.131(1).

The obligation to designate mineral resource lands is an affirmative obligation; that is, sufficient lands must be designated to assure adequate supplies of minerals for public and private uses, typically for a 25-year period. Known and "potential" lands of long-term commercial significance for sand, gravel, and valuable metallic substances must be designated and protected. The guidelines for designating natural resource lands are found in Chapter 365‑190 WAC. These guidelines state in relevant part:

(3) Classification criteria.

(a) Counties and cities classify mineral resource lands based on geologic, environmental, and economic factors, existing land uses, and land ownership....

* * *

(d) Classifying mineral resource lands should be based on the geology and the distance to market of potential mineral resource lands, including:

(i) Physical and topographic characteristics of the mineral resource site, including the depth and quantity of the resource and depth of the overburden;

(ii) Physical properties of the resource including quality and type;

(iii) Projected life of the resource;

(iv) Resource availability in the region; and

(v) Accessibility and proximity to the point of use or market.

(e) Other factors to consider when classifying potential mineral resource lands should include three aspects of mineral resource lands:

(i) The ability to access needed minerals may be lost if suitable mineral resource lands are not classified and designated; and

(ii) The effects of proximity to population areas and the possibility of more intense uses of the land in both the short and long-term, as indicated by the following:

(A) General land use patterns in the area;

(B) Availability of utilities, including water supply;

(C) Surrounding parcel sizes and surrounding uses;

(D) Availability of public roads and other public services; and

(E) Subdivision or zoning for urban or small lots.

(iii) Energy costs of transporting minerals.

WAC 365-190-070(3).

The designation and siting of mineral resource lands has been described as follows: "[M]ineral lands are found where they exist. They can be in forests, agricultural lands or in riverbeds. Nature controls the location." Sup. Asphalt & Concrete Co. v. Yakima Cnty., EWGMHB No. 05-1-0012, 2006 WL 2415824 (Final Decision and Order at 17) (June 20, 2006) http://www.gmhb.wa.gov/LoadDocument.aspx?did=1082. The extractable volume of the resource controls mine site selection, as there must be sufficiently large quantities of quality sand and gravel to justify the costs of establishing the local processing plant. See id. In addition, transportation constitutes the principal cost of gravel mining operations and expense to gravel consumers. Therefore, mine site selection is also affected by the proximity to population centers. Yakama Indian Nation v. Cent. Pre-Mix Concrete Co., SHB No. 98-42, 1999 WL 137840 at *3 (Final Findings of Fact, Conclusions of Law, and Order) (Jan.28, 1999), http://www.eho.wa.gov/searchdocuments/1999%20archive/shb%2098-042%20final.htm.

Through the GMA, the comprehensive land use plan indirectly controls mineral resource extraction because development regulations (which include official zoning controls) must be consistent with and implement the comprehensive plan, including its "mineral resource lands" designations. RCW 36.70A.040. Most comprehensive plans mandate the designation of adequate mineral resource lands to maintain...