CHAPTER 14 EXPLORING FOR MINERALS: THE PERMITTING PROCESS

• Jurisdiction: United States

Land and Permitting II
(Jan 1996)
CHAPTER 14
EXPLORING FOR MINERALS: THE PERMITTING PROCESS
Lois J. Brooks
Echo Bay Mines
Denver, Colorado

I. INTRODUCTION

As mentioned in my introduction, I have had the privilege of serving on the Executive Board of the Minerals Exploration Coalition ("MEC") since 1993. MEC is a Colorado non-profit corporation organized in 1979 as a coalition of mineral explorationists dedicated to maintaining access to public lands for mineral exploration. It remains the only organization to specifically represent the interests of the mineral explorationist.

In addition to publishing and annually updating the Permitting Directory for Hard Rock Mineral Exploration ("Permitting Directory"), MEC publishes a monthly newsletter, the Advocate, and a Permitting Flow Chart which illustrates the complex process required to conduct exploration on public lands.

The research done for updating the Permitting Directory is the primary source of information for this paper. Each of the 21 states listed in the Permitting Directory contributed to the description of state requirements and participates annually in the update. The Permitting Directory is designed to be used as a guideline for exploration permitting procedures at the federal and state levels and a source of contacts — both names and agencies.

The MEC also comments on proposed regulations, testifies before congressional committees, provides information to legislators on exploration issues, and, of course, serves as an informational source for its members concerning government actions and proposed legislation affecting exploration.

This paper presents a review of permitting requirements for exploration for hardrock minerals in the 21 mostly Western states identified in the Permitting Directory, although some requirements for industrial mineral exploration will be covered as well.

Starting with the filing of the notice of intent to prospect or drill, including surface disturbing work, and ending with reclamation standards, I will discuss common requirements as well as requirements specific to particular states. Local interpretation of federal regulations will also be discussed.

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II. FEDERAL — COMMON CONSIDERATIONS AND POTENTIAL CONSIDERATIONS

Permitting for exploration is the first step in the lengthy process of mineral exploration, development, production and reclamation. The initial steps taken (or not taken) in exploration may profoundly affect the outcome and eventual success of a project.

Mineral exploration programs in the Western states often involve public lands governed by the Forest Service, the Bureau of Land Management ("BLM") or other federal agencies such as the Fish and Wildlife Service.

Any exploration project will on public lands have common considerations, such as the particular documents to be filed with the respective agency. However, there are significant differences between a modest exploration project, when the company has a short-term program and plans to "punch a few holes" in order to decide whether to make a larger commitment, and an exploration project that involves a fairly large area of land, the claims are held by the company, and there is an commitment to that region. Regardless of the extent of the operation, certain permits will be required from either the BLM or the Forest Service. However, the effort to secure the permits and the underlying information may vary greatly. Some basic requirements of exploration on Forest Service and BLM land follow.

The following checklist and table identifies several issues that may or may not be present at an exploration site. Because timing can be especially critical for an exploration project, being aware of potential issues early in the process is essential. For example, the presence of a species protected under the Endangered Species Act ("ESA") will not be a problem either because there is already a biological opinion approving this type of activity for the area in place, or the inventory work has been done and the respective agencies have already decided the species is not present. On the other hand, if there is a listed or protected species potentially located on the site, being aware of the possibility of delay or the need for additional studies will help the explorationist decide how to proceed or even whether to proceed, depending on the extent of exploration activity planned, the likelihood of the species being affected, and the extent of the concerns expressed either by the agency in charge or the interested public.

The checklist provided is not exhaustive, but attempts to cover major issues and to further trigger additional thought on other issues common to a particular area or region or state.

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REGULATORY CHECKLIST FOR EXPLORATION DRILLING — TABLE I

Issues	Involved Agency	Permit or Document	Legal Standard
1. Threatened or endangered species	BLM or Forest Service	Biological assessment or evaluation which is reviewed by US Fish and Wildlife Service ("USFWS") which then issues a biological opinion	Whether or not the proposed activity may affect a listed species
2. Threatened or endangered species	USFWS1	Reviews BLM or Forest Service biological assessment and issues biological opinion	Whether or not the proposed activity is likely to jeopardize the continued existence of the listed species
3. Sensitive, candidate or other species or Management Indicator Species ("MIS")	Forest Service	Biological evaluation	Whether or not the proposed project can be consistent with standards and guidelines for sensitive species managed under Forest Service Manual Part 2610 or MIS
4. Sensitive species under BLM	BLM	Biological assessment	No clear standard but BLM now employs sensitive species management criteria
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5. Big game or fish habitat or populations	BLM, Forest Service or state wildlife agency	No formal document or permit	State wildlife agency or federal agency may be concerned about impacts on big game habitat or populations of state fish. Require mitigation and some indication of key habitat areas and species of concern may be found in respective land use plans
6. Area of Critical Environmental Concern ("ACEC")	BLM	§ 1712 of FLPMA	Areas of BLM land designated in land use plan or other public land order as an ACEC, often to close public land to mining
7. Research Natural Areas ("RNA")	Forest Service	36 C.F.R. § 219.25 affirms past policy of designating RNA	Often used to protect particular area, generally closed to mineral development; generally designated as part of land use planning process
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8. Impacts on sensitive soil	Forest Service	§ 1604 NFMA (integrated resource management planning and productivity if National Forests); 36 C.F.R. § 219.23 (soil and water resource minimum management requirements); § 219.26(a)(1) (prohibiting significant impairment of land's productivity); Federal Water Pollution Control Act or Clean Water Act, 33 U.S.C. § 1329 (regulation of non-point source water pollution)	Forest Service uses land use planning process to establish management standards for non-point source water pollution and soil erosion. Often the land use plan will classify soils as sensitive or subject to erosion and restrict road construction or other activities
9. Non-point Source Water Pollution	BLM	FLPMA provides for compliance with FWPCA, 33 U.S.C. § 1329; BLM adopted national handbook for controlling non-point source water pollution	Greater emphasis but often ad hoc regulation; may incorporate state standards if the state has adopted its own non-point source pollution standards, e.g. Arizona
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10. Roadless area	BLM, Forest Service	1964 Wilderness Act authorized protection for roadless areas, both agencies use land use planning authority to restrict activities near or in roadless areas	Not likely to impair area's future designation for wilderness, 43 U.S.C. § 1784, 16 U.S.C. § 1332; BLM Interim Management Policy and Guidelines for Lands Under Wilderness Study Review 53 Fed. Reg. 46704, Nov. 18, 1988
11. Visual Quality	BLM or Forest Service	36 C.F.R. § 219.21(f) inventory and protect visual resource to meet public expectations; 43 C.F.R. § 16	Non-degradation or non-impairment of visual resource; land use plans generally classify the area and classification often based on recreation use or roadless status
12. Air Quality	BLM or Forest Service	Clean Air Act, 42 U.S.C. § 7491 (visibility protection of Class I areas)	Whether or not project will interfere with Class 1 Air Quality area, i.e. a National Park or wilderness area
13. Conflicts with Recreation Use	BLM or Forest Service	Recreation is one of major multiple uses for public lands; 16 U.S.C. § 428; 43 U.S.C. § 1701(1)	Efforts are made to mitigate recreation impacts, no legal standard as such but will be found in National Forest land use plans
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14. Public Controversy	BLM or Forest Service	NEPA, 42 U.S.C. § 4332(2)(C), requires analysis of any federal action that may significantly affect the environment; 40 C.F.R. § 1508.25 defines a significant effect as scientific controversy	Excludes public controversy in form of opposition per se but scientific controversy must be covered in NEPA analysis
15. NEPA compliance	BLM or Forest Service	42 U.S.C. § 4332(2)(C); 40 C.F.R. Part 1500; generally a categorical exclusion or environmental assessment ("EA") is sufficient; issue Finding of No Significant Impact ("FONSI")	Whether or not the project will significantly affect the human environment

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OVERVIEW

Generally, under both the Forest Service and Bureau of Land Management sets of agency rules, an explorationist is required to notify the agency of her intent to prospect for minerals on lands under the agency administration. By definition, prospecting is...