Forgetting About Aggregate: Are Local Agencies Ignoring
SMARA and Killing Your Mining Projects Before You Even Apply?

It is no longer a shock for most of us to hear that quite a few cities and counties in California can be downright hostile when asked to permit a new or expanded aggregate operation. In the last few years, however, we have seen a troubling rise in the number of jurisdictions failing in their duty to protect aggregate resources as required by the Surface Mining and Reclamation Act (“SMARA”), even before an operator applies for a mining permit, whether from ignorance or downright antagonism. Recent actions by Sacramento and San Diego Counties illustrate our point.

In 1975, the California Legislature adopted SMARA, which requires, among other things, that the Department of Conservation (“DOC”) classify land and establish Aggregate Resource Areas (“ARAs”) according to the presence, absence, or likely occurrence of significant mineral deposits. Local jurisdictions are then required to use the DOC's classifications to highlight ARAs in their land-use planning and to adopt General Plan policies that protect and preserve these mineral resources for future extraction. Under the California Environmental Quality Act (“CEQA”) and SMARA, local agencies must fully consider the importance of mineral production before allowing irreversible land uses such as housing tracts or permanent biological conservation areas to obliterate existing ARAs.

Sacramento County provides our first example. In 2006 and 2007, County planning staff proposed amendments to the Mineral Resource sections of the County's General Plan that sought to give “habitat” and “biological resources” prime consideration over nearly all other uses in the unincorporated County, including previously-designated ARAs. Staff recommended removing all or portions of a number of ARAs from the General Plan—ARAs that had been classified by the DOC as prime aggregate resource areas containing scarce MRZ-2 deposits for PCC-grade aggregate.

The County claimed that continuing to recognize the targeted ARAs would be inconsistent with County policy due to supposed “conflicts” with biological resources—“conflicts” that were painted broadly, sometimes attributing vernal pool and grassland impacts to ARAs where no such resources existed. Shockingly, the County even tried to delete an MRZ-2 designated area that was already in the permitting process for a mine expansion! While we successfully challenged that particular decision, Sacramento County's attempt to undermine designated ARAs should serve as a warning for operators seeking to permit new or expanded aggregate projects in this and other Counties.

Even more recently, San Diego County released its draft North County Multiple Species Conservation Program (“MSCP”) for public comment. A comparison of the draft MSCP documents with the DOCs mineral classification reports revealed the County's intention to designate most of the known mineral resources in the north part of the County as prime habitat conservation areas. Hopefully through the public review process San Diego County will become convinced that it cannot legally or practically lock away the majority of known prime aggregate resource sites beneath the MSCP for habitat and species protection without any analysis, discussion or even a mention of the MSCP's effects on mineral resources.

Agencies need to understand that biological resource protection should not come at the expense of economic well-being or in violation of California mining law. When cities and counties revise their general plans or impose habitat conservation plans on large swaths of land, project proponents should be involved in the process to remind agencies of their legal duty to protect aggregate resources. In our view, site-specific mitigation and compatibility with species and habitat protection goals can be adequately incorporated into mining projects during the permitting process. It is both inappropriate and illegal for cities and counties to make decisions that preclude future mining of ARAs without considering the importance of aggregate resources for our state and local economies.

Braiden Chadwick and Meghan Dunnagan are attorneys in the Energy, Land Use, and Minerals Group at Downey Brand LLP.

Please note that the information contained in this article is not intended to provide legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.