This paper addresses the issue of mineral resource land under the Growth Management Act (GMA). The GMA requires counties and cities to designate mineral lands and then those counties and cities planning under the GMA must assure the conservation of these resources. In addition, local governments planning under GMA are required to adopt regulations to prevent interference with the continued use of mineral lands and the extraction of minerals from these lands.

However, some believe that in practice, designation of mineral resource lands may not have met its intended goals. The aggregate industry is concerned that designation of mineral lands does not provide for the future extraction and processing of aggregate resources on designated lands. Citizens are concerned with the designation process because designation is being completed without sufficient information or environmental review of its potential impacts. Local governments are frustrated because many lack the environmental information necessary for designating mineral lands, adequate funding to accomplish this, and regulations necessary to effectively regulate mineral lands.

The 1997 Legislature adopted a bill (EHB 1472) to address the designation, production and conservation, of adequate sources of minerals. The Governor vetoed the bill because he believed it went too far in limiting the rights of concerned citizens, communities and local governments to address fully the impacts of gravel mines and gravel mining operations. In the Governor's veto letter, Governor Locke directed the Land Use Study Commission to bring closure to this issue by providing a recommendation on how to meet the needs for additional gravel operations without encroaching on the land use authority of local governments and the rights of concerned citizens and communities.

The Land Use Study Commission created a Mineral Lands Advisory Committee with environmental, citizen, business, and local and state government representatives to work on these issues. The Committee held seven meetings incorporating informational presentations from local government, state agencies, citizens and the aggregate industry. The Committee focused their discussions on eight topic areas including: the designation of mineral lands, economics of mining, mining operations, supply of mineral resources, environmental impacts, regulations and permitting, public/government/industry interface, and aggregate mining in rivers.

The issues of the highest concern to the Mineral Lands Committee are expressed in its mission statement. The committee's mission statement is:

To ensure predictability and consistency in mineral resource development by providing recommendations for the designation of mineral resource lands including the identification of anticipated uses which balance environmental and community concerns, industry needs, resource conservation, public interest, legal and legislative requirements. Designation does not preclude site specific analysis leading to approval or denial of a permit. Designation should ensure that adjoining incompatible land uses shall be discouraged.

The designation and conservation of natural resource lands is required by the 1990 Washington State Growth Management Act to assure the long-term commercial production of agricultural, forestry and mineral resources. Mineral resource lands, which includes gravel, sand and valuable metallic substances, are classified using criteria in the Minimum Guidelines To Classify Agriculture, Forest, Mineral Lands and Critical Areas (WAC 365-190-070).

The Minimum Guidelines help local governments to evaluate the type, quality, and extent of mineral resource lands needed to ensure an adequate future supply while maintaining a balance of other land uses. Special attention may include notification of property owners within 300 feet surrounding a designated mining site.

The classification criterion is based on geologic, environmental and economic factors, existing land uses and land ownership. The guidelines offer that information on location and extent of mineral deposits can be obtained from the Washington State Department of Natural Resources (DNR) and the United States Bureau of Mines. Jurisdictions also must consider classifying known and potential mineral deposits so that access to mineral resources of long-term commercial significance is considered during development of comprehensive plans. The effects of mineral lands proximity to population areas and the possibility of more intense uses of the land is also a factor when classifying mineral resource lands.

Currently, there are 35 counties who have met the GMA requirements for designating resource lands and four counties remain out of compliance. From 1993 through 1996 there were seven hearings board cases relating to mineral lands filed against seven counties, including three with the Western Washington Growth Management Hearings Board; two with the Central Puget Sound Growth Management Hearings Board and two with the Eastern Growth Management Hearings Board.

Decisions of some of the mineral lands hearings board cases include the following issues:

Adjacent land uses must not interfere with the continued use of mineral lands (Jefferson Co.)

The protection of mineral lands from encroachment from adjacent land uses (Chelan Co.)

An order requiring the County to designate natural resource land and conserve mineral deposits for long term resource extraction (Skagit Co.)

Elimination of the prohibition on mining within the 100 year floodplain and adopt development regulations that prevent incompatible uses from encroachment. (Clark Co.)

Counties are not required to designate all mineral lands. (King County)

Regulatory reform efforts in Washington State have resulted in changes for how local government process permits and how appeals to land use decisions can be made. Central to the land use permitting review processes outlined in SEPA and GMA is the use of substantive SEPA environmental review at the planning level and, where appropriate, additional site-specific environmental review at the project permitting level.

Another important feature in project review is that fundamental land use planning choices made in adopted comprehensive plans and development regulations serve as the foundation for project review. RCW 36.70B.030 (3) stipulates that during project review, the local government or any subsequent reviewing body shall not reanalyze these land use planning decisions in making a permit decision. While fundamental land use designations must not be changed at the project permitting level, nothing in this chapter limits the authority of a permitting agency to approve, condition, or deny a project permit.

One area of concern expressed by the aggregate industry is that once mineral lands are designated, local governments do not always have subsequent conforming zoning or development regulations adopted. Local governments understands this concern, but expressed that the law requires zoning be brought into compliance with the comprehensive plans. A problem exists for some jurisdictions where development regulations that regulate mining have not been adopted.

Environmental review is not occurring at the designation stage of planning primarily because of a lack of funding. As a result of this, site specific environmental review under SEPA occurs only at the permitting level. Jurisdictions must rely on their adopted development regulations to identify potential mitigation or conditions during operations, and lacking the adoption of such regulations, the mining industry lacks the certainty they assumed was promised by land being designated as mineral lands of long-term significance.

The Mineral Lands Advisory Committee spent many meetings discussing this situation and acknowledge that additional technical assistance to local governments in the form of a comprehensive model ordinance could serve as an effective framework for permitting operations. As part of the designation process, local governments must also have an understanding of what potential environmental impacts can be anticipated so that adjacent land uses can be appropriately zoned. If environmental review is to take place at the early planning and designation process, as envisioned by regulatory reform, then local governments need additional state technical assistance and funding to accomplish this.

Rock, sand, and gravel products that are used in construction make up the majority of the mineral industry in Washington. This aggregate material must be excavated, sorted, crushed, washed, and/or stockpiled before a rock resource can be transformed into a product that meets the specifications for road and building construction. This processed material must then be transported, usually by truck, to the site of use.

Operations such as mining, crushing and washing are an integral part of the aggregate industry. Batch plants, where asphalt or concrete is mixed with the processed rock for uses in construction, crushing and recycling of used concrete and asphalt for the contained rock, are normally best done where the rock material is processed. However, while most counties allow excavation on designated mineral resource lands, the primary operational functions are often only permitted as a conditional use or in some cases not permitted at all.

The committee observed that an obstacle in complying with the Growth Management Act is the lack of information or knowledge of geology and mining practices necessary to designate all mineral lands of long-term commercial significance and to assess requests by industry to designate new sites.

Mineral resources are most easily identified through existing mineral operations and where known aggregate resources are located. There is limited information on where new aggregate resources are located. The GMA rules suggest local governments contact the Department of Natural Resources and the United States Bureau of Mines (Bureau of Mines) for information on location of known mineral lands. Unfortunately, the DNR information is incomplete and focuses principally on information about metallic minerals locations and to a much lesser extent on aggregate resources. The Bureau of Mines information was derived from information provided by the DNR, so this information doesn’t provide any additional help to local governments.

The Committee discussed different tools that could provide necessary information to make wise decisions on designating and using mineral lands.

The Mineral Lands Advisory Committee agreed that it is necessary that the Department of Natural Resources along with other state agencies develop a Geographic Information System (GIS) map with appropriate attributes to describe the sand, gravel, and quarried rock resources of Washington.

Use of the GIS provides for the incorporation of data generated in the earlier phases of growth management planning, maps by the U.S. Geologic Survey and the former Bureau of Mines. The intended use of a geographic information is to identify aggregate deposits. Each county can access such information. The state should be recognized as an official source for this information. The committee recognized that without appropriate funding, this proposal will not occur.

A comprehensive GIS layer for mineral resources would cost about $351,000 over three years. State agencies, such as CTED, DNR, DOT and DOE should work collaboratively in developing this information. It would require a new State General Fund appropriation.

Environmental review under the State Environmental Policy Act should be done before mineral resource lands are designated by local government. This environmental review should inform both the community and the potential mine operator of the possible impacts and mitigation associated with mining and ancillary operations on designated mineral resource lands. Where information is not duplicative or where information gaps may occur, site specific environmental review should be provided at the project permitting level.

The Mineral Lands Committee suggests that a Programmatic Environmental Impact Statement (PEIS) would be an important tool for assisting local governments in quantifying the impacts of mining and processing sand, gravel, and quarried rock. Rather than undertaking new research, this PEIS would be a compilation of existing environmental information. Such information can be found in existing environmental documents and other studies that have been written as part of the permitting process for mines. PEIS is designed to work in conjunction with site specific environmental review under SEPA. Because DNR is able to produce a compilation of data from existing sources rather than to develop new or site-specific information, the PEIS can be developed at relatively low cost. DNR estimates this expense to be about $330,000, which would require a new State General Fund appropriation. Recognizing a statewide value in developing this document, an agreement was reached among all parties to support full funding of this effort by the state.

3a. The Committee identified a need for a set of guidelines that would provide local government, citizens and the mining industry with certainty in how operations are regulated. A prototype for local regulation of mining operations, in the form of a model ordinance, could be an effective tool to meet this need. A model ordinance would provide a basic structure, with modifications to meet local needs, for the regulation of mineral land operations.

3b. Another post designation issue identified by local government was a need for reclamation plans, approved by the DNR, to be consistent with subsequent land uses identified in locally adopted comprehensive plans and conditions of permit approval. By law, authority over restoration plans is vested with the DNR, while authority to approve the general permit vests with local government.

A model ordinance will provide a streamlined way for local governments to adopt practical mining regulations that are fair and offer a level of statewide consistency sought by industry. The Mineral Lands Advisory Committee recommends that the Washington State Association of Counties work with all interested state agencies, appoint and staff a Mining Model Ordinance Committee to develop a model ordinance for local regulation of mining operations as defined in RCW 78.44.031(8). This Model Ordinance Committee will develop a model ordinance that can be used by local governments in the permitting of operations. The composition of the committee will be a balanced, representative group made up of state and local government, citizens, and industry.

Funding for this process and subsequent Model Ordinance could possibly be funded through a mixture of local government funds and existing state funds.

This will be a one-year process, which will result in a report to an appropriate state legislative committee, appropriate guidebooks, and a model ordinance. The information can be distributed statewide through workshops and to local governments, citizens and industry in the local permitting process.

While a consensus was not reached among the members of the Committee on how to best resolve this issue, a majority of the members felt that with additional time this problem could be resolved. It was suggested that both the DNR and local governments attempt to improve communications at the interagency level.

As previously mentioned, 35 counties have completed the designation of their agricultural, forestry and mineral resource lands. Additional designation of mineral lands may be necessary to keep up with projected long-term needs. While the annual amendment process for amending the comprehensive plan does provide for the opportunity to consider new mineral lands designations, concern is expressed that this does not guarantee that lands will be added over time.

The Committee agreed that designation of new mineral lands may be re-visited in accordance with the existing annual amendment process, and in light of WAC 365-190-040 (g), based on significant new information or conditions for the life of the mineral resource.

Incompatible adjacent land uses limit future mineral resource operations. Local governments are required to provide zoning discouraging incompatible uses for lands adjacent to resource lands. Currently, written notice to property owners within 300 feet is required by statute for all resource lands. The Committee reached consensus that a minimum of 300 feet did not provide a sufficient enough sized buffer for deterring potentially conflicting adjacent land uses.

Expand the written notice requirements from 300 feet to a minimum of 500 feet of property boundary of designated property. Written notice, in the form of a notice on the title, discloses the location of a mineral land’s proximity and anticipation of future mining and other related activities such as mineral extraction, washing, crushing, stockpiling, blasting, transporting, and recycling. By expanding the notification requirement an additional 200 feet, opposition to future mining will be minimized and future incompatible land uses will more likely be eliminated. It is also important to hold the local government harmless for claims resulting from providing notice. Local government noted that this additional notification requirement would likely result in a funding impact to local government and they must be compensated for this.

In summary, consensus was reached by the Mineral Lands Advisory Committee on the following points:

Identify all possible aggregate deposits. A state-wide GIS system map should be developed and a Programmatic EIS should be developed to ensure resources are identified and environmental review occurs at the planning/designation level. (Recommendation 1 and 2)

Designation does not preclude site specific SEPA analysis that may lead to approval or denial of a permit. Local governments are not to revisit the issue of land use after designation, as part of the permitting process. (Recommendation 2)

Develop a local government Model Ordinance for regulating mining operations. (Recommendation 3a).

For new mineral lands of long-term significance to be designated, the annual amendment process should be used. (Recommendation 4)

Designation issues may be re-visited in accordance with existing process in light of WAC 365-190-040 (g), based on significant new information or conditions, for the life of the resource. (Recommendation 4)

Notification of adjacent property owners to designated lands should be increased from 300 feet to a minimum of 500 feet. (Recommendation 5)