Is it mining in Colorado?

Is It Mining?

January 12, 2024 AGPROfessionals News Desk

Is It Mining?

The Division of Reclamation, Mining and Safety provides a questionnaire to determine if potential projects require a Reclamation Permit. While a simple questionnaire seems helpful, the Mined Land Reclamation (MLR) Board has created policies that do not align with the Colorado Revised Statutes. The “Is it Mining” questionnaire requires the user to answer such questions as whether the mine site operator will receive any compensation and what post-mining land uses will be made of extracted materials.

It requires that you identify yourself as a mine operator to determine whether you are a mine operator.

As directed by the MLR board, office staff members consider the extraction of any material that uses public roads or benefits another to be mining.

They have extended this policy to include cleaning and maintaining irrigation reservoirs and canals.

We believe that this interpretation is wrong.

When the Left Hand is Stopping the Right Hand

We are currently advocating for clients who received a grant from the Colorado Water Conservation Board (CWCB) to clean out an irrigation reservoir on their property, and they are running into unnecessary roadblocks at every turn. The tentacles of regulation and their interpretation are strangling farmers, ranchers, and rural property owners. Regulations and policies in Colorado are even putting different state and county agencies at odds with each other. In this case, the project that the CWCB wants to have completed before the wet weather hits is being delayed because Weld County is insisting that the project be cleared with the Colorado Division of Reclamation, Mining and Safety (DRMS) when it clearly is not mining, nor is it a reclamation project. Regardless, the Colorado Division of Mining Reclamation is demanding a mining permit.

The response received by their office stated, “Division has determined a reclamation permit is required for this activity.”

If an irrigation company is legally obligated to deliver a certain amount of water, and if maintenance of ditches, ponds, and reservoirs is necessary to maintain appropriate storage capacity, then DRMS blocking irrigation companies from delivering the full volume of water is problematic. A mining permit would trigger a county Use by Special Review (USR) permit. If both the mining permit and USR take 9-12 months to complete, then the reservoir won’t be able to complete its operations, and it won’t be able to deliver the required water volume in the spring.

Interpretation of Colorado Mining Regulations Are Problematic

Agricultural producers and rural landowners working to maintain and improve their properties are continually running into significant financial and procedural roadblocks from the interpretation of regulations by the Division of Reclamation, Mining and Safety (DRMS). We assert that the cleaning out of irrigation reservoirs is not the act of mining based on the following definitions provided by the State of Colorado in their Statutes, Title 34:

Natural Occurrences – cleaning irrigation reservoirs removes materials from man-made activities, not natural occurrences.
Open Mining and Dredging – only applies to naturally occurring materials.
Nonmetallic Construction Materials – materials removed from irrigation reservoirs are not used to produce non-metallic construction products.
Transportation – considering transportation of materials as mining does not apply because the materials are not naturally occurring, nor are they used to produce nonmetallic construction materials. State statute clearly states that existing off-site roads constructed for purposes unrelated to the proposed operation are not included in the definition of mining and/or affected lands.

Materials in Irrigation Reservoirs are Not “Naturally Occurring”

It is simple, materials in irrigation reservoirs are not “naturally occurring”:

The material being removed due to irrigation sediment buildup flows from one man-made structure to another.
There is no “natural occurrence” on affected land.

Colorado Revised Statutes (C.R.S.), Title 34-32.5-103, clearly defines what is considered mining of construction materials in the State of Colorado.

Title 34-32.5 reads:

"Mining operation" “means the development or extraction of a construction material from its natural occurrences on affected land. The term includes, but is not limited to, open mining and surface operation. The term also includes transportation and processing operations on affected land. The term does not include concentrating, milling, evaporation, cleaning, preparation, transportation, and other off-site operations not conducted on affected land.”

This definition does not reference cleaning out an irrigation reservoir, nor are the materials being extracted “naturally occurring.” Therefore, from this definition alone, as reflected in the Colorado Revised Statutes, agricultural producers and landowners should not be required to obtain a mining permit when simply maintaining the infrastructure on their properties.

Cleaning Out a Man-Made Reservoir is Not Open Mining or Dredging

Cleaning out a man-made reservoir is not “Open Mining,” nor should it be considered “dredging” under the state’s definition of “Open Mining” because, in the case of irrigation reservoirs, the material being removed is not a construction material.

Title 34, Article 32.5 states:

“’Mining’ means the extraction of construction materials.”

“Open mining” means the mining of materials by removing the overburden lying above such deposits and mining directly from the deposits thereby exposed. “Open mining” also means mining directly from such deposits where there is no overburden. The term includes but is not limited to such practices as open-cut mining, open pit mining, strip mining, quarrying, and dredging.”

For the definition of “open mining” to apply, the definition of “mining” must first be met. If the material being extracted will not be used in the production of nonmetallic construction products, then the terms “mining” and “open mining” do not apply.

Cleaning Out an Irrigation Reservoir is Not “Mining of Construction Materials”

Irrigation reservoirs must be maintained to protect the integrity of their structures, to protect the environment, and to protect their storage capacity. Maintenance of irrigation reservoirs means cleaning out the build-up of sediment.

Title 34, Article 32.5 states:

“’Mining operation’ means the development or extraction of a construction material from its natural occurrences on affected land. The term includes but is not limited to, open mining and surface operation. The term also includes transportation and processing operations on affected land. The term does not include concentrating, milling, evaporation, cleaning, preparation, transportation, and other off-site operations not conducted on affected land.”

Then it goes on to define “construction material”:

“’Construction material’ means rock, clay, silt, sand, gravel, limestone, dimension stone, marble, or shale extracted for use in the production of nonmetallic construction products.”

The materials removed from irrigation reservoirs are not used to produce nonmetallic construction products. These are critical words listed in the statute that further eliminate the cleaning of irrigation as being classified as mining operations.

Transporting Materials Does Not Constitute a Mining Operation

The act of transporting materials extracted from an irrigation reservoir does not fall under the definition of a “mining operation” because the roads used to transport the material are off-site operations not conducted on affected land. A public road is not part of the affected land. The Statute makes this clear:

Title 34 states:

“’Affected Land’ means the surface of an area within the state where a mining operation is being or will be conducted, which surface is disturbed as a result of an operation. Affected lands include, but shall not be limited to, private ways, roads (except those roads excluded by this subsection (1)); land excavations; exploration sites; drill sites or workings; refuse banks or spoil piles; evaporation or setting ponds; work, parking, storage, or waste discharge areas; and areas in which structures, facilities, equipment, machines, tools, or other materials or property that result from or are used in such operations are situated. “Affected Land” does not include off-site roads that were constructed for purposes unrelated to the proposed operations, were in existence before a permit application was filed with the office, and will not be substantially upgraded to support the operation or off-site groundwater monitoring wells.”

The DRMS’ current policy that considers extraction of any material that uses public roads as mining blatantly disregards the State Statute.

We Ask the State of Colorado Division of Reclamation, Mining and Safety to Review the Colorado Revised Statutes

The intention of recording regulations on paper is to make regulations clear and guard against misinterpretation and overreach. The experience of agricultural producers and rural landowners shows that the DRMS creates policy outside the written regulations. This is placing egregious financial and procedural burdens on agricultural producers and landowners by requiring mining permits where they are not necessary.

We ask the Division of Reclamation, Mining and Safety (DRMS) to review the Colorado Revised Statutes, Title 34-32.5-103, and its policies. Instead of creating roadblocks, the DRMS and other agencies should be taking steps to ensure agricultural producers and rural landowners are able to easily maintain infrastructure on their properties in the best interest of the people and environment in the State of Colorado.