August 2006

Evening the Playing Field
As most local governments fail to protect aggregate resources, learn new strategic tactics from this roundup of land-use planning initiatives.

by  Executive Editor

But as aggregate producers manage to work around permitting constraints in various markets, their success may actually undermine the growing urgency to protect such reserves for future development.

Despite numerous initiatives, including the Colorado Front Range projectwas launched in 1973, to the new zoning classifications such as Tooele County, Utah’s MG-EX, which was developed in the ’90s, no broad-based, government-initiated protection program has been implemented.

“In the ’70s, people started recognizing these conflicts,” says Bill Langer, a research geologist with the U.S. Geological Survey (USGS) in Denver. “The state geological surveys and the USGS made efforts to demonstrate the location of the resources, residential communities, and projections of development.”

As an example of the results, Langer points to Anne Arundel County in Maryland. “Everyone would gasp and develop maps of resources, but then they’d stop there,” he explains. “They failed to take that next step by taking action to protect it. People could still build there, and they did.”

While no national initiative has been implemented, a number of state and local programs have been developed, with varying degrees of success. “The folks that study this kind of thing have come to the conclusion that there is a real lack of consideration of aggregate resources in the planning literature,” Langer says. “The issues are generally ignored in terms of protecting the resource. On the other hand, there tends to be a fair amount of effort designed to protect the people from the impacts of developing the resource.”

Colorado’s H.B. 1529

Colorado was one of the early, although not most successful states, to attempt resource planning. In 1973, the state Legislature passed H.B. 1529, which was designed to encourage development of mineral resources based on rational and practical planning.

The bill required the state geological survey to develop maps of sand and gravel resources in the populous Front Range counties and subsequently required the counties to use those maps in their plans for growth and development.

Langer says that a 1980 study, performed by the U.S. Department of Labor, concluded that the initiative did not work for various reasons. One reason was that the legislation had no “teeth” to it. There was no penalty for failure to comply with H.B. 1529. Another reason the measure did not succeed was that the land could be developed for alternative uses. Developers were required to cite how the land was going to be used, but then they could simply point to another aggregate source and have their plans approved. Finally, the measure included a laundry list of requirements to protect citizens from the “nuisance” of resource development.

“It protected the citizens from the resource, but the part of protecting the resource from the citizens could be discounted with a simple statement in (a developer’s) zoning application that said there were downstream resources,” Langer says.

California’s SMARA

In 1975, the California legislature passed the Surface Mining and Reclamation Act (SMARA). The act requires the California Division of Mines and geology to classify specified lands based on their mineral content, but does not require that the reserves be permitted or even protected from alternative uses.

“SMARA has had some pretty good impacts, but — as I understand it — it comes on a case-by-case basis,” Langer says. “It hasn’t had the hoped for goal of protecting resources.”

The hope was that once resources were identified and the scarcity was verified, those lands would be protected for future development. While the idea is sound in theory, it rarely works in practice. As government agencies try protect aggregate resources from sterilization, they often trigger a public backlash that elected officials may not be willing to endure.

Basically, the way the act has worked is that information was collected by the state geological survey and used to identify local resources. Because the information comes from a government source, it is typically viewed as quality, unbiased data.

When a producer seeks a permit, they can use that information to demonstrate how much of the resource is available and the location of that resource. “That may or may not give them an edge in a permit exercise,” Langer notes.

Minnesota’s Section 84.94

The state of Minnesota passed an aggregate planning and protection measure, Section 84.94, in 1984. The legislation details its purpose as “to protect aggregate resources; to promote orderly and environmentally sound development; to spread the burden of development; and to introduce aggregate resource protection into local comprehensive planning and land-use controls.”

According to Dennis Martin, manager of the Mineral Potential Section of the Division of Lands and Minerals within the Minnesota Department of Natural Resources (DNR), it was viewed as a neutral party and asked to “identify, map, and classify aggregate resource deposits in an entire on a county-by-county basis” for each of the state’s 87 counties.

“By giving (local governments) a map and a database, we give them a tool and encourage them to plan for future mineral resources for their community and their region,” Martin says. “Counties have people that understand the value of having local construction aggregates available to them, especially now with the cost of fuel for transporting aggregates.”

The formation of Aggregate Resources Task Force also helped open a dialogue among various groups concerned with mining. “That task force was a mechanism to open discussion,” Martin recalls. While no legislation resulted directly from the task force, it was the impetus behind at least two state conferences on construction aggregates and certainly increased awareness of resource preservation. “All of those things have led to where we are at now,” Martin adds.

For example, many local governments must choose between mining and its most common competing land use, residential development. Some of the more rapidly growing suburban areas learned from what happened in the seven-county area that makes up the greater Minneapolis-St. Paul area. In that part of the state, rapid urbanization led to the sterilization of resources. As a result, those counties are paying higher transportation costs to import construction aggregates.

Martin says that while the DNR has had some success in encouraging local governments to meet their current aggregate needs, the real challenge is to get them to think about a future supply. That may be changing with the recent development of Blue Earth County’s Greenprint project.

 “In that project, agricultural land, natural lands such as wetlands, and construction aggregate resources were considered to be very important. Through the process, they are actually planning for the future by protecting these resources from encroachment and other types of development,” Martin explains.

Goals of the plan include the following:

• Identification and prioritization of natural resources, corridors, and greenways for conservation management; and

• Development and implementation of comprehensive plans that preserve, protect, and restore important natural resources corridors and greenways.

As part of the project, a master plan for mining reclamation throughout the county is to be developed. That plan is intended to manage mining in priority conservation areas identified through the plan.

“This model process looks to be very good for construction aggregates,” Martin says.

“Other counties have, in their comprehensive plan, strong statements about aggregate resources, but this Greenprint plan looks really powerful, like the best plan out there.”

Washington’s GMA

The state of Washington passed the Growth Management Act (GMA) in 1990. According to the state’s Web site, it was adopted because the state legislature found that “uncoordinated and unplanned growth posed a threat to the environment, sustainable economic development, and quality of life in Washington.”

Ironically, what may have been the nation’s first foray into smart growth also represents what may be its most effective program for resource protection. The GMA requires state and local governments to manage the state’s growth by identifying and protecting critical areas and natural resource lands, designating urban growth areas, preparing comprehensive plans, and implementing them through capital investments and development regulations.

“What the GMA posits is that the local governments must do good planning,” says Bill Lingley, chief state lands geologist with the Washington Department of Natural Resources. “It doesn’t say they must set aside a certain amount of rock resources, but it does require that they think it through and that the thought process be more than casual.”

Through the requirements set forth in RCW 36.70A.050 (Guidelines to classify agriculture, forest, and mineral lands and critical areas), local governments are required to produce maps of aggregate resources, examine consumption rates, and set aside a minimum 25-year aggregate resource.

Since the act was passed 16 years ago, it has been amended. “When the original provisions came out they were pretty tough on small governments,” Lingley says. “It required too much science and expenditure for them to meet the requirements, so they backed off some of the requirements for the remote, rural counties.”

What differentiates the Washington GMA from many other aggregate resource protection programs is the fact that the act includes punitive measures for local governments that fail to meet the set aside requirements. According to the penalties outlined in the act, the governor can impose sanctions including the following:

• Revise allotments in appropriation levels;

• Withhold the portion of revenues to which the county is entitled under one or more of the following: motor vehicle fuel tax, transportation improvement account, urban arterial trust account, rural arterial trust account, sales and use tax, liquor profit tax, and liquor excise tax; and

• File a notice of noncompliance with the secretary of state and the county or city, which shall temporarily rescind the county or city’s authority to collect the real estate excise tax.

Lingley says that some of the larger counties, such as King County — which includes the Seattle area — have aggressively defended their zoning determinations and protected their aggregate resources. Other counties, however, have not done as good of a job. In some cases, he says, counties have developed excellent plans and thought the process through only to turn to junk science to refute findings from the industry and scientific community regarding resource availability. In those cases, he says, counties effectively performed a “pocket veto” on protecting resources.

While Lingley is quick to point out that Washington is a state rich in aggregate resources, including abundant bedrock and world-class glacial deposits, pockets of the state still experience a construction material shortage. “There are areas where there is an acute shortage because of geologic constraint,” he notes. “We tried to bring it to the attention of those local governments — that they had a problem, and they needed to address it. The success has been mixed.”

Tooele County, Utah’s MG-EX

The competing need for aggregate and desire to have it “not in my backyard” played themselves out in a contentious situation in Tooele County, Utah. Between 1990 and 2000, the population of the county, which is a bedroom community of the greater Salt Lake City area, increased by a whopping 51.3 percent.

“It’s an honest-to-goodness example of aggregate development issues,” Langer declares. “You want a source of aggregate where those houses are so you can get the concrete and asphalt to them as cheaply as possible, so they have aggregate operations and ready-mixed plants right near those houses. While they’re being built, that’s all fine and dandy. When people start living in those houses, it’s no longer fine and dandy. They complain and put pressure on civic leaders who put pressure on the aggregate producers who get tired of the pressure and pack up and move out. We’re in a leap frog exercise where no one is happy.”

By the late ’90s, the county became entangled in litigation between the residents and aggregate producers. As a result, the county developed a new zoning classification, the MG-EX (Chapter 27 – Mining, Quarry, Sand and Gravel Extraction Zone). Any producer can petition to have their zoning changed to the new classification. After demonstrating that the producer has a resource that needs to be mined and showing that it will be mined in an environmentally responsible manner that meets certain predefined criteria such as setbacks, the zoning reclassification should be granted. Permits may also be renewed in a streamlined manner so long as the producer operates responsibly.

“The good news is that anybody that moves into land zoned with this classification has no right to demand that things be changed. They can’t move in, complain about the smell, and ask that (the operation) be shut down,” Langer says.

Shrinking supply

Maintaining a steady supply of aggregates to all markets is an ongoing challenge, particularly in some markets. While many producers are aware of the sterilization of aggregate reserves along portions of the East Coast, other areas also face shortfalls in supply.

For example, when the Denver International Airport was being built several years ago, contractors had a difficult time securing enough construction materials for the job as aggregate producers refused to forsake long-term clients for a relatively short-term project.

Following hurricane damage in Louisiana, that market — which has never had an abundant supply of crushed stone — faced a greater-than-normal challenge in obtaining construction materials for rebuilding efforts.

And while some areas face aggregate shortages due to geologic constraints, others face them because of a lack of will to support the protection of such resources. Several years ago, the Sacramento Bee ran a series of articles, entitled “State of Denial” detailing how Californians were unwilling to develop the resources that the state economy consumed. Instead, the state imports materials such as oil from Venezuela, trees from northern Canada, and aggregate from British Columbia.

According to the 2003 report, California has an estimated 81 billion tons of reserves — enough to last 350 years at the current rate of consumption, without importing a truckload. Instead, the state turned to British Columbia to produce aggregate for the controversial reconstruction of the Bay Bridge.

“Today, the state’s passion for protecting its own backyard…and its penchant for building homes over rich reserves is beginning to shift the pain of producing those natural resources to other landscapes and cultures,” Tom Knudson, a Bee staff reporter wrote.

For a state that prides itself on being environmentally friendly, its disregard for the impact it is creating elsewhere may be considered somewhat surprising. The governor of Baja California Norte, located in the northwest edge of Mexico, halted mining exports to California citing its “plundering” of its natural resources.

“They’re doing more environmental damage in those places than they would be if they were mining under the strict controls in California,” Langer notes.

A 1997 report in California Geology, written by Russell Miller, a senior geologist with the California Department of Conservation, indicates that the number of aggregate mines in the Bay Area dropped from 32 to 23 between the ’80s and ’90s. During the same time period, the number of operations throughout Southern California dropped from 81 to 56.

Underscoring the value of planning

One way to elevate the importance of protecting aggregate resources amongst the myriad concerns facing local planners is to underscore the cost of transporting the material from remote locations.

While most, if not all, aggregate producers are well aware that shipping costs can outweigh production costs if the material is trucked more than 20 miles, the general public is not as aware of the issue.

In areas that don’t have a local aggregate supply, a premium is being paid to import construction materials. Couple the increased cost with the fact that more than half of all aggregate produced is used for government projects, and the tax implications are significant.

“The sad part is that we all end up paying for it. We’re all paying higher taxes to support our inability to keep aggregate available at a reasonable distance,” Langer says. “Aggregate producers are doing a darn good job of keeping the price down. Maybe if they weren’t so darn good at it, people would be suffering and willing to do something about it.”

Show and Tell

Until a broad-based, overarching plan to set aside aggregate resources is developed, one of the most effective tools for aggregate producers is a simple exercise of show and tell.

“A key issue is the application of scientific information. You really need to look at the available aggregate resources within a market and describe that market concept to the local government,” says Bill Lingley, chief state lands geologist with the Washington Department of Natural Resources.

“Start with an assessment of what’s actually available, irregardless of land use restrictions. Subsequently, provide an overlay of land use restrictions,” he adds. “It becomes abundantly clear to local governments when there is a resource shortage.”

Lingley says that he believes that hard science provides a fairly irrefutable argument. “Once local governmental officials understand that there isn’t a lot of leeway, they tend to make better decisions, and they tend to give industry a more sympathetic ear,” he adds.

To contact a state geologist, look for individual state links at www.stategeologist.org.

Using GIS technology, government officials in Queensland, Australia, demonstrated the scarcity of developable aggregate reserves. The areas in purple show the distribution of crushed stone resources in a portion of Queensland, while the green areas show national parks, conservation parks, and state forests. Finally, the red highlights remove all land parcels smaller than 250 acres to show the remaining areas that are large enough for a mine and a buffer zone.

Photos courtesy of Bill Langer, U.S. Geological Survey

Reprinted from Aggregates Manager Magazine
August 2006