Memorandum

 

TO: Hal Fitch, EIA Sub-group Members

FROM: Michelle Halley

DATE: January 18, 2005

RE: Site-specific Regulations and Definitions of "Recreational Areas"

As we discussed on January 13-14, the group is interested in viewing regulatory language from other states addressing site-specific mine siting requirements as well as definitions of "areas actively maintained for public recreation." These concepts are conflated in the regulations I’ve seen, so I will leave them as is to show the context and interrelation. This is what I’ve compiled so far. I’m happy to do more research after the group discussion if needed.

Site-specific Siting Requirements

Minnesota Mining Rule 6132

Subpart 1. Goals. Mining shall be conducted on sites that

minimize adverse impacts on natural resources and the public.

Separations shall be maintained between mining areas and

adjacent conflicting land uses. All sites shall incorporate

setbacks or separations that are needed to comply with air,

water, and noise pollution standards; local land use

regulations; and requirements of other appropriate authorities.

 

Subp. 2. Mining excluded. Except as allowed under state

and federal laws, no mining shall be conducted within the

following:

 

A. the Boundary Waters Canoe Area Wilderness, as

legally described in the Federal Register, volume 45, number 67

(April 4, 1980), with state restrictions specified in Minnesota

Statutes, section 84.523, subdivision 3;

 

B. Voyageurs National Park, with state restrictions

specified in Minnesota Statutes, section 84B.03, subdivision 1;

 

C. state wilderness areas, with restrictions

specified in Minnesota Statutes, section 86A.05, subdivision 6;

 

D. Agassiz and Tamarac National Wilderness areas, and

Pipestone and Grand Portage National monuments;

 

E. state scientific and natural areas;

 

F. within state peatland scientific and natural areas

where such activities would significantly modify or alter the

peatland water levels or flows, peatland water chemistry, plant

or animal species or communities, or natural features of the

peatland scientific and natural areas, except in the event of a

national emergency declared by Congress;

 

G. calcareous fens identified in Minnesota Statutes,

section 103G.223; and

 

H. a state park, except if the park has been

established as a result of its association with mining.

 

Subp. 3. Surface disturbance prohibited. No mining

activities that disturb the surface shall be allowed within or

on the following:

 

A. within the Boundary Waters Canoe Area Wilderness

Mineral Management Corridor, identified on the Department of

Natural Resources map entitled "Minnesota Department of Natural

Resources B.W.C.A.W. Mineral Management Corridor," dated

February 1991, which map is hereby incorporated by reference, is

not subject to frequent change, and is available through the

State Law Library;

 

B. within one-fourth mile of Voyageurs National Park;

 

C. within one-fourth mile of state wilderness areas;

 

D. within one-fourth mile of Agassiz and Tamarac

National Wilderness areas, and Pipestone and Grand Portage

National monuments;

 

E. within one-fourth mile of state scientific and

natural areas;

 

F. within one-fourth mile of state parks, except

surface disturbance shall be allowed if the park has been

established as a result of its association with mining;

 

G. within one-fourth mile of calcareous fens

identified under Minnesota Statutes, section 103G.223;

 

H. on sites designated in the National Register of

Historic Places, except that surface disturbance shall be

allowed if the sites have been established as a result of their

association with mining;

 

I. on sites designated in the Registry of State

Historic Sites, except surface disturbance shall be allowed if

the sites have been established as a result of their association

with mining;

 

J. within national wild, scenic, or recreational

river districts of a national wild, scenic, or recreational

river, and within the areas identified by the document, "A

Management Plan for the Upper Mississippi River," produced by

the Mississippi Headwaters Board, dated January 1981, which

document is hereby incorporated by reference, is not subject to

frequent change, and is available through the State Law Library,

except underground mining may be permitted in accordance with

the management plans developed for specific national wild,

scenic, or recreational river districts;

 

K. within designated state land use districts, of a

state wild, scenic, or recreational river, except underground

mining may be permitted in accordance with the Wild and Scenic

Rivers Act and the rules adopted under it;

 

L. within the area adjacent to the north shore of

Lake Superior identified in the document entitled, "North Shore

Management Plan," produced by the North Shore Management Board,

dated December 1988, which document is hereby incorporated by

reference, is not subject to frequent change, and is available

through the State Law Library; and

 

M. on the following areas, provided they were in

existence before the issuance of a permit to mine:

 

(1) within 500 feet of an occupied dwelling,

public school, church, public institution, or county or

municipal park, unless allowed by the owner; and

 

(2) within 100 feet of a cemetery, or the outside

right-of-way line of a public roadway, except where mine access

or haul roads cross the right-of-way.

 

Subp. 4. Mining restricted. Mining shall be conducted in

the following areas only if there is no prudent and feasible

siting alternative. If mining is proposed, the commissioner

shall base siting approval decisions on the specific

characteristics and qualities of the natural resources for which

the area has been designated, and the potential impacts that are

likely to result. Mining shall be allowed only if there will be

either no adverse impacts on the natural resources, or

provisions acceptable to the commissioner are proposed to either

mitigate adverse effects, or replace, reroute, or in some other

manner reclaim the affected natural resources:

 

A. within a national wildlife refuge, a national

waterfowl production area, or on a national trail;

 

B. within a state wildlife management area, or on a

state designated trail either listed in Minnesota Statutes,

section 85.015, or acquired under the authority of Minnesota

Statutes, section 84.029, subdivision 2;

 

C. in peatlands identified as peatland watershed

protection areas in the Department of Natural Resources report

entitled "Protection of Ecologically Significant Peatlands in

Minnesota," dated November 1984, which report is hereby

incorporated by reference, is not subject to frequent change,

and is available through the State Law Library; and

 

D. within waters identified in the public waters

inventory, conducted under Minnesota Statutes, section 103G.201,

that have not been created or substantially altered in size by

human activities, and within the adjoining shorelands, as

defined in Minnesota Statutes, section 103F.205, subdivision 4,

of the unaltered waters.

 

Subp. 5. General siting criteria. Portions of a mining

operation for which there is flexibility in site selections,

such as storage piles, tailings basins, water reservoirs,

processing plants, offices interconnecting roadways, and

auxiliary facilities, shall be sited to the extent practicable

so that:

 

A. impacts on the public and natural resources due to

wind erosion, noise, and air emissions are minimized;

 

B. potential injury to life due to floods, caving, or

slope failure is minimized;

 

C. potential damage to property and natural resources

due to floods, caving, or slope failure is minimized;

 

D. major modifications of watersheds, including

diversions of surface water and alterations of groundwater

levels, are minimized;

 

E. runoff and seepage can be managed to minimize

water impacts on surface water and groundwater;

 

F. conflicts with natural and historical heritage

sites, identified during environmental review, are minimized;

and

 

G. former mining areas are used in preference to

areas undisturbed by mining.

 

Subp. 6. Wetland conservation. Mining activities that

result in the draining or filling of wetlands, identified

pursuant to Minnesota Statutes, section 103G.005, subdivision

19, shall not be conducted unless the wetlands are replaced by

restoring or creating wetland areas under a replacement plan

approved pursuant to part 6132.5300. It must be noted that the

replacement plan requires an evaluation of the affected wetland,

including consideration of avoidance and mitigation techniques,

before replacement by restoration or creation can even be

considered.

 

Colorado RS 34-32-115(4)(h)

(f) The mining operation is not located upon lands:

(I) Where mining operations are prohibited by law or regulation within the boundaries of units of the national park system, the national wildlife refuge system, the national system of trails, the national wilderness preservation system, the wild and scenic rivers system, or national recreation areas;

(II) Which are within or without the boundaries of, and are owned, leased, or have been developed by, any recreational facility established pursuant to article 7 of title 29, C.R.S., unless otherwise authorized by the appropriate governing body or unless the operation will not create any surface disturbance therein;

29-7-107. Recreational facility defined.

"Recreational facility" or "recreational system" as used in this article includes such land or interest in land as may be necessary, suitable, or proper for park or recreational purposes or for the preservation or conservation of sites, scenes, open space, and vistas of scientific, historic, aesthetic, or other public interest. The term "interests in land" as used in this section means and includes all rights and interests in land less than the full fee interest, including but not limited to future interests, easements, covenants, and contractual rights. Every such interest in land held pursuant to this article when recorded shall run with the land to which it pertains for the benefit of the political subdivision holding such interest and may be protected and enforced by such subdivision in any court of general jurisdiction by any proceeding known at law or in equity.

(III) Which are within the boundaries of, and are owned, leased, or have been developed by, any park and recreation district established pursuant to article 1 of title 32, C.R.S., unless otherwise authorized by the board of directors of the district or unless the operation will not create any surface disturbance therein; and

32-1-103. Definitions.

(14) "Park and recreation district" means a special district which provides parks or recreational facilities or programs within said district.

(IV) Which are within the boundaries of any unit of the state park system or any state recreational area in which the entire fee estate is owned by the state of Colorado, unless the mining operation is approved jointly by the board, by the governor, and by the board of parks and outdoor recreation, or unless the operation will not create any surface disturbance therein.

South Dakota

SD CLA 45-6b-33

45-6B-33. Unsuitable land--No permit issued. No permit may be issued for a mining operation proposed on unsuitable land. Land is unsuitable if the following conditions cannot be satisfactorily mitigated:

(1) Reclamation of the affected land pursuant to the requirements of this chapter is not physically or economically feasible;

(2) Substantial disposition of sediment in stream or lake beds, landslides, or water pollution cannot feasibly be prevented;

(3) The land to be affected by a proposed mining operation includes land that is special, exceptional, critical, or unique as defined in § 45-6B-33.3 [use MI corollary] and satisfactory mitigation is not possible;

(4) The proposed mining operation will result in the loss or reduction of long-range productivity of aquifer, public and domestic water wells, watershed lands, aquifer recharge areas, or significant agricultural areas;

(5) The biological productivity of the land is such that the loss would jeopardize threatened or endangered species of wildlife indigenous to the area; or

(6) The board finds that any probable adverse socioeconomic impacts of the proposed mining operation outweigh the probable beneficial impacts of the operation.

Under existing law, if the applicant cannot demonstrate that it can maintain "critical" resources, or restore them, the Board of Minerals and Environment (BME) may deny the permit. Permit applicants are required to identify all "critical resources" in the proposed permit area in order to focus the BME’s attention on these potential values in the area. S.D. Codified Law Ann. §45-6B-33.3 (2004).

45-6B-33.3. Special, exceptional, critical, or unique land defined. For the purposes of § 45- 6B-33, land is special, exceptional, critical, or unique if it possesses one or more of the following characteristics:

(1) The land is so ecologically fragile that, once it is adversely affected, it could not return to its former ecological role in the reasonably foreseeable future;

(2) The land has such a strong influence on the total ecosystem of which it is a part that even temporary effects felt by it could precipitate a system-wide ecological reaction of unpredictable scope or dimension; or

(3) The land has scenic, historic, archaeologic, topographic, geologic, ethnologic, scientific, cultural, or recreational significance.