A Guide to Colorado Sand & Gravel Permitting, 0520 COBJ, Vol. 49, No. 5 Pg. 26

• Author: BY KENT HOLSINGER AND TODD OHLHEISER
• Position: Vol. 49, 5 [Page 26]

49 Colo.Law. 26

A Guide to Colorado Sand and Gravel Permitting

Vol. 49, No. 5 [Page 26]

Colorado Lawyer

May, 2020

ENVIRONMENTAL LAW

BY KENT HOLSINGER AND TODD OHLHEISER

This article provides an overview of the permitting process for limited impact sand and gravel operations.

So you want to open a gravel pit. . . now what? As with many enterprises, prospective quarry operators may find that navigating the permit application process can be a dauntingly rocky road. Mining operations at the state level are regulated generally under CRS Tide 34. Local government approvals must also be obtained and can be quite challenging, mostly due to opposition from neighboring landowners. This article examines the permitting process for limited impact sand and gravel operations pursuant to state law and offers some important considerations relative to local government permitting.

Filling the Need for Gravel and Sand

Gravel, sand, and related extracted construction materials are continually in demand. According to the U.S. Geological Survey's (USGS) 2018 report, the U.S. produced approximately 970 million tons of construction sand and gravel in 2018.¹ Colorado is among the leading states in gravel production. The uses for such materials include concrete aggregates and products; road construction and stabilization; asphalt and similar uses; construction fill; and such varied uses as snow and ice control, railroad ballast, and roofing granules.²

At the state level, gravel pits are regulated by die Colorado Mined Land Reclamation Board (Board) within the Division of Reclamation, Mining and Safety (DRMS).³ The Board regulates die industry pursuant to the Colorado Land Reclamation Act for the Extraction of Construction Materials^[4]and die DRMS "Construction Material" Rules codified at 2 CCR 407-4 (the Rules).⁵

Competent legal and engineering advice is critical during the early stages of planning to ensure regulatory compliance. Industry organizations are also excellent resources and sources of information.⁶

Limited Impact Operations

Construction material (e.g., gravel) extraction operations of less than 10 acres are considered "Limited Impact Operations" and are governed by CRS § 34-32.5-110. Rule 1.4 governs the application review process generally, and Rule 1.4.2 pertains specifically to limited permit applications. The Reclamation Permit Application Package for a Designated Mining Limited Impact (110d) Operation (permit application package) is available on the DRMS website.^[7] The permit application package must be submitted with die various exhibits listed in Rule 6.3 and die application form.

Pursuant to Rule 1.4.6, the Board is required to process and take final action on the application with in 30 days of submittal. However, Rule 1.4.6(2) allows the time period to be extended if complications arise, such as when a member of the public objects to die gravel pit. To allow for the potentially lengthly objection process (including potentially a hearing under Rule 1.4.11), any revisions required by DRMS, or other unforeseen complications, operators should begin die application process well before any proposed operation.

The statutory fee for the application is currently $1,258, pursuant to CRS §§ 34-32.5-110(2) and -125(1)(a)(I). Applicants must also submit performance and financial warranties to the Board before its issuance of a permit, as required by CRS § 34-32.5-117 and Rule 4. These warranties are written promises that die applicant will both comply with all permit requirements and be responsible for all reclamation costs. The Board determines the amount of the financial warranty, which must include proof of financial responsibility.

Pre-Application Requirements

Prospective applicants should complete the following diligence requirements before starting die permitting process:

■ Determine the legal description of the proposed site down to at least die quarter-quarter section.^[8]

■ Determine the "Primary Mine Entrance Location" for die site. This point must be reported in latitude/longitude or Universal Transverse Mercator (UTM).⁹

■ Obtain a gravel pit location map prepared by a registered land surveyor created in accordance with Rules 6.2.1(2) and 6.3.1.

■ Determine if there are any bodies of water (e.g., streams, rivers, lakes, ponds reservoirs, ditches, or wetlands) near die site that die gravel pit could affect.¹⁰

> The existence of such water bodies could trigger additional requirements and possible regulation under the Colorado Division of Water Resources; the Colorado Department of Public Health and Environment (CDPHE), Water...