Permitting Aggregate Mines under Michigan’s Zoning Enabling Act

By Mike WilczynskiGuest Author/January 24, 2022 / 3 minute read

Overview

Permitting of non-metallic mines (such as frac sand mines) in Michigan tends to vary significantly across municipalities. This two-part series discusses the terms of these permitting processes, with examples of how activists and residents have used this framework to fight infrastructure permitting.

This is the first in a two-part series written by Mike Wilczynski, certified professional geologist with Pangea Environmental, LLC, and member of Friends of the Platte River Watershed. Mike lives in Detroit.

In Michigan, the permitting of non-metallic mineral mines occurs at the local level. This includes frac sand (crushed stone), as well as sand and gravel. The local unit of government (LUG) must enforce state and federal laws, besides the local ordinances. The quality of the local ordinances related to mineral extraction can vary among LUGs. Likewise, the quality of the review by local officials can also differ.

LUGs must follow the Michigan Zoning and Enabling Act (MZEA) when reviewing an application to mine non-metallic minerals. The MZEA allows for denial of the application to mine for only specific reasons. If the decision is challenged, the burden of proof is on the applicant.

The applicant must be able to demonstrate the public’s need for the material and that the material can be mined at a profit. The Need and Value are to be balanced against the Very Serious Consequences (VSC) that may occur because of the mining. These terms are the subject of this two-part article. The first part will discuss Need and Value. The second part will cover Very Serious Consequences.

Need & Value

How the Need and Value are demonstrated varies by LUG. Sometimes, these and other parts of the ZEA are ignored or not properly reviewed by the LUG. For some applications, the discredited 2016 report about aggregate shortages in Michigan is submitted to demonstrate need. This 2016 report was commissioned by the Michigan Department of Transportation (MDOT), and was later discredited by MDOT as being unduly influenced by the aggregate industry.

The demonstration of Value is often very weak and not well understood by a LUG due to lack of experience. Some applications do not even include soil borings to understand the subsurface, so the decision to mine is based solely on surface features and/or adjoining mining. These are not accurate methods to show Value, and have resulted in environmental damages because of a lack of understanding the geology of the area.

In one instance, after our [Friends of the Platte River] demonstration that a proposed mine was not economically viable (did not have Value), the mine application was denied. Apparently, we also convinced the mine applicant, because his initial threats of legal action if the mine application was denied did not come to fruition and the property is for sale, based on the last update. The original application contained no soil boring logs on approximately 160 acres. In the end, two boring logs were submitted, and it was decided the Value had not been proven to the LUG.

A pond that disappeared after the mine expanded next to the pond in Gaines Township, MI. Photo by Mike Wilczynski, 2021.

A frac sand mine in Gaines Township, MI mine adjacent to a pond that was affected, right next to the 140 yr old schoolhouse. Photo by Mike Wilczynski, 2020.

The Bohne Rd mine in Jackson County, MI. Photo by Mike Wilczynski, 2019.

A pond that disappeared after the mine expanded next to the pond in Gaines Township, MI. Photo by Mike Wilczynski, 2021.

Very Serious Consequence

Very Serious Consequence (VSC) is the term used when describing valid reasons to deny a mine application based upon the potential adverse impacts the mine may have on the surrounding area.

VSC are limited to the following, taken directly from the ZEA:

(5) In determining under this section whether very serious consequences would result from the extraction, by mining, of natural resources, the standards set forth in Silva v Ada Township, 416 Mich 153 (1982), shall be applied and all of the following factors may be considered, if applicable:

(a) The relationship of extraction and associated activities with existing land uses.

(b) The impact on existing land uses in the vicinity of the property.

serving the property, based on credible evidence.

(d) The impact on pedestrian and traffic safety in the vicinity of the property and along the proposed

hauling route serving the property.

(e) The impact on other identifiable health, safety, and welfare interests in the local unit of government.

(f) The overall public interest in the extraction of the specific natural resources on the property.

In the second part of this article, we will discuss the VSC in more detail, and present examples of mines that have created VSC due to their operations after being permitted by the LUG. The creation of VSC – in most cases we have seen – have then been ignored by the LUG.

The permitting process can take a year or more and is a deeply flawed system for the public, and even the mining industry. Local ordinances related to the review and permitting of mines can vary greatly among LUGs. They can be lengthy and comprehensive or almost nonexistent. This is problematic for mining companies who face different rules and expectations in almost every location. However, in general, the applicants do not put much effort in trying to submit a proper application. Sometimes, more information is requested by the LUG, and other times, what is submitted with the initial application is accepted, even if incomplete or wrong.

The Take Away

Several pieces of legislation have been proposed to take away local control. None of these have contained sufficient protection of human health or the environment – in the place of local control. So far, there has been enough opposition to removing local control to prevent the legislation being passed. Last legislative session, Senate Bill 431 never reached the floor for a vote, due in large part to local efforts contacting elected officials. The current legislative session, Senate Bill 429 passed the Senate, but is stalled in the House.

Stay tuned for part two in this guest author series.

Feature image courtesy of Ted Auch, FracTracker Alliance, 2019.

References & Where to Learn More

Michigan Zoning Enabling Act, 2006.

Topics in This Article:

Frac Sand, Legislation & Politics

Join the Conversation

1 reply

Elaine Wolf says:
March 16, 2022 at 8:41 pm

Interesting article. So what is the truth about the need for gravel? Is there such high demand in Michigan, or midwest that is not being filled?
What is the author’s opinion about keeping the permitting with the LUG or moving it to state control?
Why are there no rules in place to restricted mining in any residential area, too close to homes or too close to ecologically important features?

Comments are closed.

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What You Should Read Next

Permitting Aggregate Mines in Michigan Poses Very Serious Consequences

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2 Comments

Varying across municipalities, mine permitting in Michigan can bring very serious consequences. This is the second of a two-part series.

$Sylvanian Minerals frac sand mine in South Rockwood, Michigan.$