Planning commission moves to keep county’s ability to require review criteria; staff to retain waiver of application materials only

The San Miguel County Planning Commission on Oct. 9 recommended that the Board of County Commissioners not adopt a new provision allowing administrative waiver of substantive review standards for mining permits, while preserving existing language that lets staff waive duplication of application materials when federal or state permit documents already address county review topics.

County staff presented the draft mining regulations and explained the distinction in their proposed chapter between: 1) waiver of application materials (already common in county practice, and proposed to be included in the mining chapter), and 2) waiver of review standards or approval criteria (a novel step that would let the planning director exempt an applicant from one or more substantive county review standards before public notice and a decision by the Planning Commission or BOCC). Staff and counsel told the commission that the latter approach posed process and fairness concerns and risked shifting discretionary authority out of the public decision-making body.

Kaye (county planning staff) summarized the issues: waivers of application materials can reduce redundant documentation when applicants already submit state or federal permit packages; waiving review standards, however, would let an administrative decision effectively preclude public consideration of matters that typically form part of the decision-making record. The county’s consultant, David Baumgarten of Sullivan Green, told commissioners that waiver-of-materials is appropriate and consistent with existing practice but that waiver of approval standards raises procedural and notice issues that an administrative approval would not address.

Representatives of the Colorado Mining Association, including CMA president (Mr.) Ekman and counsel, urged a collaborative approach and asked the county to coordinate with state and federal regulators. CMA representatives said state (Division of Reclamation, Mining and Safety — DRMS) and federal (Bureau of Land Management) processes already cover many technical topics and that duplicative county review would multiply costs and time; they asked the county to work toward memoranda of understanding so the county and state/federal reviewers could rely on the same record.

Commissioners raised several practical concerns: an administrative waiver of a substantive standard would produce no public notice, make it difficult for neighbors to learn of and appeal the waiver, and could force the Planning Commission or BOCC to rule later on a single standard without a full evidentiary record. County staff and counsel recommended removing the waiver-of-standards language and keeping only the waiver-of-application-materials provision. The commission agreed and passed a motion withdrawing its earlier recommendation on the waiver-of-standards language; the action narrows the draft code so that staff can accept state or federal permit documents in lieu of duplicative local submittals but cannot administratively decide that a county review standard does not apply to a proposed mining activity.

The commission’s recommendation will be transmitted to the Board of County Commissioners for its November consideration of the draft mining regulations. County staff also reported they will attempt further outreach to the Bureau of Land Management and state agencies (DRMS) to confirm how the county’s rules and the state/federal permitting processes can be coordinated. Commissioners and staff said that, when appropriate, the county can participate in DRMS processes and that applicants should expect to address county-specific issues that federal or state permits do not cover.

Speakers quoted in this article are listed in the speakers section below.