Thank you for the opportunity to comment on the proposed changes to Chapter 12 of the LUPC rules regarding land use district requirements for metallic mineral mining and Level C mineral exploration activities.
NRCM has eight comments on the proposed rule revisions, some of which are major comments regarding LUPC’s proposal to remove sections of the current rule, and other comments that recommend fine tuning the proposed revisions. With regard to the former, NRCM recognizes that some provisions of the current rule may be proposed to be removed because the issues addressed in those provisions will be addressed by the Department of Environmental Protection in the permitting process. However, NRCM recommends that these provisions not be removed until the DEP permitting rules are finalized. Additionally, NRCM firmly believes that some of these issuesânamely water quality, soil stability and equivalent natural resource protectionâare vital to rezoning decisions and deserve consideration by LUPC during the rezoning process at some level, even if DEP will be doing a later, and possibly more detailed, review at a later time.
NRCM’s comments reflect a careful reading of the proposed rule revisions, as well as conversations about the revisions with LUPC staff. LUPC staff informed NRCM that the revised mining rules are intended to replace Chapter 10.21 G, Sections 6, 7 and 8 of LUPC Rules, which describes the Planned Development Subdistrict (D-PD). In the event that other portions of the D-PD rules are intended to be replaced by these proposed revisions, NRCM may have additional comments.
1. LUPC should retain Section 4(C)(1)(i) in the existing mining rule in order to protect water quality. LUPC needs information about groundwater in order to consider impacts on drinking water sources for homes and businesses downstream, and due to the likelihood of groundwater mixing with lakes, streams, and wetlands affecting fish and wildlife habitat. This information is essential to making rezoning decisions, where the general location of the proposed activity is the issue at hand. If the groundwater characteristics of the site are such that contamination of neighboring uses is inevitable or highly likely, it would be inappropriate for LUPC to approve a rezoning. While more detailed information regarding groundwater may be needed at the permitting stage, at least basic information is needed at the rezoning stage. Therefore, NRCM recommends that the proposed changes to the mining rule retain the requirement in the existing rule that the applicant must submit:
“(i) A description of groundwater characteristics which delineates flow rates and travel direction of the groundwater for the property proposed for D-PD Development Subdistrict designation.”
2. LUPC should retain Section 4(C)(1)(g) in the existing mining rule in order to ensure soil stability. To ensure that there are suitable soils on the site for the types of activities proposed, LURC has routinely required soils maps for rezoning for large developments. However, under the proposed changes to the mining rules, the applicant would not be required to submit soils maps and therefore such information would not be reviewed by LUPC. Mining activities involve many types of development including structures, roads, parking areas, etc. in addition to the actual mine pit. Soils maps are available from the Natural Resources Conservation Service at no cost. As with water quality, while more detailed information regarding soil stability may be considered at the permitting stage, at least basic information is needed at the rezoning stage. It is critical that the proposed changes to the mining rules retain some requirement similar to the existing rule (with minor modifications) that the applicant must submit:
“(g) A soils map of highappropriate intensity or equivalent protection that encompasses those portions of the property proposed for D-PD Development Subdistrict designation, including identification of soils used in the USDA Soil Series.”
3. LUPC should modify Section 4(B)(3) of the existing mining rule to require applicants to provide substantially equivalent protection to natural resources. LURC has routinely required applicants proposing large developments to provide substantially equivalent protection for natural resources. The proposed rule affords no such protection. While some activities on the site may not be movable to alternative areas, many of the activities on the site, such as administrative buildings, storage facilities, water treatment facilities, roads, etc. may be moveable so that particularly sensitive areas could be excluded from the area to be rezoned.
Currently, the D-PD requires that the Commission ensure that an applicant’s proposal:
“Incorporates, where the land proposed for inclusion in the D-PD subdistrict is in a protection subdistrict, a substantially equivalent level of environmental and resource protection as was afforded under such protection subdistict.”
Assuming the proposed revisions to the mining rule are intended to replace this section of the Planned Development Subdistrict (Chapter 10.21 G, Section 8 of D-PD), this provision would be eliminated. It is critical that the proposed rule be revised to maintain or increase the level of protection for sensitive natural areas within protection subdistricts. NRCM recommends that this language be included in the criteria for approval of a petition (Section 4(B)(3)).
4. The Commission should include consideration of whether the applicant can avoid impacts on existing uses and natural resources in Section 4(B)(3) of the proposed mining rules. NRCM recommends that, in addition to considering the potential for a permittee to minimize and mitigate potentially adverse impacts on existing uses and resources (see Section 4(B)(3), last paragraph), the Commission should consider whether the applicant can avoid impacts on existing uses and natural resources. Specifically, NRCM recommends the following revision:
“In considering these impacts and determining whether any adverse impact associated within the proposed rezoning is an undue adverse impact on existing uses and resources, the Commission may consider the potential for a metallic mineral mining or Level C mineral exploration permittee to avoid, minimize, or mitigate to the extent permitted by law, a potentially adverse impact so that the resulting impact is not an undue adverse impact.”
Note that NRCM also recommends replacing “shall” with “may.” This modification gives the Commission the flexibility to allow applicants to minimize or mitigate any undue adverse impacts on existing uses and resources, but does not require the Commission to allow minimization or mitigation if the Commission determines that avoiding adverse impacts to existing uses and resources is more appropriate.
5. Under Section 4(C)(1)(i), applicants should be required to identify significant natural resources within an eight-mile radius. Under Section 4(C)(1)(i) of the proposed revision, applicants must submit “a map identifying significant natural resources and sensitive areas located within a three-mile radius of the mine or exploration siteâ¦.” NRCM does not think that three miles is sufficient to identify potential impacts on all natural resources. Wind power rules require maps identifying significant natural resources within an eight-mile radiusâthe same metric should be used for mining operations.
6. Clarify which sections of the Planned Development Subdistrict (D-PD) description the proposed mining rule revisions are meant to replace. As discussed previously, based on conversations with LUPC Staff, NRCM is under the impression that the revised mining rules will replace Chapter 10.21 G, Sections 6 – 8 of LUPC Rules. This is not clear under the proposed rule revisions. NRCM recommends that this matter be clarified by identifying in the rule exactly which sections of the D-PD the proposed mining rules revisions are meant to replace.
7. Define “primary and secondary services and utilities” in Section 4(B)(3)(b) of the proposed rule revisions. Neither NRCM, nor LUPC staff with whom NRCM spoke, is familiar with any definition of “primary and secondary services and utilities.” NRCM recommends these terms be defined within the rule.
8. Maps submitted by applicants under Section 4(C)(1)(f) should specifically identify all surface waters. In order to ensure that all surface waters within and adjacent to potential mining sites are considered by the applicant and by the Commission during rezoning, NRCM recommends that the term “water courses” in Section 4(C)(1)(f) be replaced with a list of allpotential water courses, including lakes, ponds, rivers, streams, and estuaries.