2 Colo. Code Regs. § 407-1-5

Current through Register Vol. 47, No. 23, December 10, 2024

Rule 2 CCR 407-1-5 - PROSPECTING OPERATIONS

5.1NOTICE OF INTENT TO CONDUCT PROSPECTING OPERATIONS

5.1.1General Provisions

(1) Any person or organization desiring to conduct prospecting, as defined in Rule 1.1, shall, prior to entry upon the prospecting lands, file with the Office a Notice of Intent to Conduct Prospecting (NOI) on a form provided by the Board. A separate prospecting notice shall be filed with the Office for each non-contiguous Land Survey Quarter Section in which a proposed prospecting activity is to occur. The requirement for separate notices may be waived by the Office for good cause.

(2) If the Office determines that the prospecting proposed in the NOI is instead "mining," the Office shall notify the person or organization in writing. Any appeal of this determination shall follow the procedures set forth in Rule 1.4.11.

(3) Modifications to an existing NOI must be submitted in writing and approved in advance of such activity. Modifications shall be reviewed by the Board or Office in the same manner as new NOIs.

5.1.2Application Requirements

The NOI form (Rule 5.1.1) shall, at a minimum, contain the following:

(a) date of filing of the Notice of Intent;

(b) the name, address, and telephone number of person or organization responsible for the prospecting (the "Prospector");

(c) the name, address, and telephone number of a person to contact concerning the information in the NOI and reclamation of lands affected by prospecting;

(d) a description of lands, including:

(i) the site name, if applicable;

(ii) the location, by each quarter section, section, township and range;

(iii) where Public Land is involved, specify the land management agency, mailing address and telephone number;

(iv) the estimated acreage of land surface to be affected by the prospecting activities to include areas affected by access along routes for which reclamation is the responsibility of the Prospector; and

(v) a U.S.G.S. 7.5-minute quadrangle, or similar map of adequate scale, that

(A) identifies the proposed prospecting site(s) or activity areas involving surface disturbance. Activity areas may include all drill holes, mud pits, excavations, trenches, adits, shafts, tunnels, rock dumps and prospecting roads; and

(B) includes sufficient detail to identify and locate known prospecting features and facilities that may be affected and those that are not anticipated to be affected. This includes the location of all drill holes, mud pits, excavations, trenches, adits, shafts, tunnels, rock dumps and prospecting roads;

(vi) provide documentation of the legal right to enter to conduct prospecting and reclamation, for Owners of Record described in Rule 1.6.2 . This may include a copy of a lease, deed, abstract of title, a current tax receipt, or a signed statement by the Landowner(s) and acknowledged by a Notary Public stating that the Prospector has legal right to enter to conduct prospecting and reclamation.

(e) the approximate date of anticipated commencement and the date of completion of the above described prospecting activity. Such activity must be completed within five (5) years of the NOI approval unless otherwise approved by the Office or Board;

(f) a narrative description of the methods to be used to conduct the prospecting operation, including, but not limited to, the types and uses of equipment, drilling, surface blasting, road or other access route construction, excavations, and other site disturbance activities;

(g) the measures to be taken to reclaim any affected land consistent with the applicable requirements of Rule 3.1 . Such reclamation must be completed within five (5) years of the completion of prospecting activities notice provided for in Rule 5.7; and

(h)

(i) Designation of information believed by the applicant to be confidential including information relating to the mineral deposit location, size or nature, and information believed by the applicant to be proprietary or trade secret or that would cause substantial harm to the competitive position of the applicant. The applicant may designate its identity as confidential if the applicant believes that disclosing its identity would cause substantial harm to its competitive position. The requirements and provisions of Rule 1.3 Shall apply to any designation as to identity. The applicant shall distinguish in the submittal between those portions of the NOI that are confidential because they relate to mineral deposit location, size or nature and those portions of the NOI the applicant believes are proprietary, trade secret or harmful to its competitive position. Those portions of the NOI that are not designated as confidential will be available as public record.

(ii) The applicant must submit two (2) separate forms. One form will contain all information, including both public and confidential information (with confidential information designated as such). This complete form will be used by the Office for review and will be held confidential. The second form will contain only the information the applicant believes is public with the applicant redacting all information to be held as confidential.

(i) The applicant must submit the NOI in both paper and electronic form. The Office shall post on its website the NOI within five (5) days of submittal except those portions of the submittal designated by the applicant as confidential.

(j) Modifications to an existing NOI must be submitted in writing and approved in advance of such activity. Modifications shall be reviewed by the Board or Office in the same manner as new NOIs, use the same NOI form, and include confidentiality designations. Prospectors must fill out sections of the NOI form that will change and indicate the sections that will not change. Prospectors must designate each portion of the modified NOI they believe are to remain confidential. Please note that under Section 34-32-113, C.R.S., all information provided to the Board in an NOI or a modification of an NOI is a matter of public record including, in the case of a modification, the original notice of intent, unless that information relates to the mineral deposit location, size, or nature or is designated by the Prospector as proprietary or trade secrets or that would cause substantial harm to the competitive position of the Prospector. Accordingly, the Prospector must also designate the information in the original NOI that it believes is confidential if it has not already done so.

(k) Any dispute concerning whether information in a NOI is confidential or public shall be resolved by following the procedures set forth in Rule 1.3.

(l) a statement that prospecting will be conducted pursuant to the terms and conditions listed on the approved NOI form.

(m) Concurrent with submitting the NOI to the Office, the prospector shall send a notice to the local Boards of County Commissioners in the counties where the proposed prospecting activities occur.

(i) The Prospector shall certify that such notice was submitted.

(ii) Such notice shall state that non-confidential information regarding the proposed prospecting activities will be available for review at the Office's website.

5.1.3Office Review

Upon receipt by the Office of a NOI to Conduct Prospecting, the Office shall timely notify the prospector, in writing or via electronic means, of receipt of the NOI. The Office shall post on its website the NOI within five (5) days of submittal except those portions of the submittal designated by the applicant as confidential. Any public comment or request for disclosure of information designated as confidential filed pursuant to Rule 1.3 regarding the NOI must be received by the Office no later than ten (10) working days after the notice is posted on the Office website.

(a) Review of a NOI and associated Financial Warranty information is required by the Office within twenty (20) working days of receipt by the Office. If the Prospector has not been notified of any deficiencies of the NOI form, including notice of a dispute regarding confidentiality pursuant to Rule 1.3 which will be treated as a deficiency of the NOI, or Financial Warranty by the Office within twenty (20) working days of receipt by the Office of the NOI, prospecting operations may commence. For activities on BLM or USFS lands, the twenty (20) working day period begins when the Office has received notification from the appropriate federal land management agency that they have received the notice of proposed activities, or the Office has otherwise determined that the appropriate federal land management agency has received the notice.

(b) If a challenge to confidentiality has occurred pursuant to the process set forth in Rule 1.3, and the Board has determined that certain information is public rather than confidential, upon the expiration of the thirty (30) day delay period under Rule 1.3, the Office shall post the newly released information on the Office website within five (5) working days. Any public comment regarding the newly released information must be received by the Office no later than ten (10) working days after the new information is posted on the Office website.

(c) If the Office has notified a Prospector within twenty (20) working days of receipt of a NOI that it has not been filed in accordance with Rule 5.3, has been deemed complex, or of deficiencies in the Financial Warranty, the Prospector shall address all identified deficiencies or complexities within sixty (60) days of the Office notification. If the NOI deficiencies or complexities are not addressed within sixty (60) days, the Office may terminate the NOI file. The Office shall notify the person who submitted the NOI of such termination.

(d)

(I) The Office shall send notice of its decision on a NOI to the prospector and any person who filed a timely comment.

(II) Any prospective prospector or person who filed a timely comment and who meets the definition of party may appeal an Office determination within five (5) business days from the date the Office sends notice of its decision.

(III) The Board shall hear any such appeal at its next regularly scheduled meeting that is at least ten (10) calendar days from the date of such appeal.

(IV) The Office's determination shall not take effect until the expiration of the five (5) business days allowed for an appeal, or, in the case of an appeal, until the Board issues its decision.

5.2CONFIDENTIALITY

5.2.1NOI Information

(1) For NOIs submitted or approved on or before June 2, 2008, all information provided to the Office in a NOI shall be protected as confidential information by the Board and not be a matter of public record in the absence of written release from the Prospector or upon a finding by the Board that reclamation is satisfactory, or the site has been abandoned as set forth in Rule 5.6 . If the site is abandoned, the information in the NOI not subject to the provisions of Rule 5.2.2 may be used by the Office to ensure that the reclamation requirements of the NOI have been met. Notice of a Board determination that a prospect site under a NOI has been abandoned will be sent by certified mail to the prospector at the last known address.

(2) For Notices of Intent to Conduct Prospecting or modifications thereof submitted or approved on or after June 2, 2008, all information in a notice of intent or modification of such notice is a matter of public record including, in the case of a modification, the original notice of intent; except that, information relating to the mineral deposit location, size or nature, and other information designated by the applicant or prospector and determined by the Board as proprietary or trade secrets or that would cause substantial harm to the competitive position of the applicant or prospector shall be protected as confidential and shall not be a matter of public record in the absence of a written release from the applicant or prospector, until a finding by the Board that reclamation is satisfactory, or until the Board releases the information pursuant to the provisions of Rule 1.3.

5.2.2Portions of NOI File to Remain Permanently Confidential

(1) For NOIs filed before June 2, 2008, the following drillhole information remains permanently confidential:

(a) all drillhole information contained within the temporary abandonment reports, required in accordance with Rule 5.4.3;

(b) all drillhole information contained in the final reports in accordance with Rule 5.7(1);

(c) all drillhole information contained in the annual reports in accordance with Rule 5.6; and

(d) all drillhole information contained in inspection reports.

(2) For NOIs or modifications thereof filed on or after June 2, 2008, the information described in this Rule 5.2.2, including in the case of a modification, the information in the original NOI, shall be publicly available unless designated by the prospector as confidential. The provisions of Rule 1.3 shall apply for a requested Board determination as to whether information designated by the prospector as confidential should remain confidential.

5.3TERMS AND CONDITIONS FOR PROSPECTING

5.3.1Protection of Surface Areas

Prospecting will be conducted in such a manner as to minimize surface disturbances and protect public health, safety, and the environment. The Prospector shall:

(a) address the standards required in Rule 5;

(b) address all relevant reclamation performance standards of Rule 3.1;

(c) confine prospecting to areas near existing roads or trails where practicable. Any new road used for prospecting, or any existing road which is significantly upgraded must be included as part of the affected acreage. A road is significantly upgraded if it is significantly widened, or the route or gradient are significantly altered;

(d) conduct drilling in such a way as to prevent cuttings and fluids from entering any drainage way;

(e) timely abandon drill holes upon completion as required by Rule 5.4;

(f) safeguard mine entries, trenches and excavations from unauthorized entry at all times as necessary to provide for public safety;

(g) timely reclaim affected lands upon completion of prospecting operations or phases of the prospecting operation. Prospecting activities must be completed within five (5) years of the NOI approval unless otherwise approved by the Office or Board, and reclamation must be completed within five (5) years of the completion of prospecting activities; and

(h) backfill and revegetate trenches and other excavations upon completion of the prospecting activities.

5.3.2Protection of Wildlife

Prospecting shall be conducted to minimize adverse effects on wildlife, including, where appropriate, escape ways, fencing, or other acceptable wildlife barriers.

5.3.3Financial Warranty

(1) Upon filing NOI, the Prospector shall provide Financial Warranty in the amount of two thousand dollars ($2,000.00) per acre of the land to be disturbed, or such other amount as determined by the Office, based on the projected costs of reclamation, taking into account the nature, extent, and duration of the prospecting operation and the magnitude, type and estimated cost of the planned reclamation.

(2) A Prospector may submit statewide Financial Warranties for prospecting if Financial Warranties are in an amount fixed by the Office, based on the projected costs of reclamation, and such Prospector otherwise complies with the provisions of this Rule for every area to be prospected. (Further information on Performance and Financial Warranty procedures may be found in Rule 4.)

(3) The Board or Office shall take reasonable measures to ensure the continued adequacy of any Financial Warranty.

5.3.4Notice of Completion of Prospecting Prior to Initiating Reclamation

Upon completion of the prospecting, the Prospector shall submit to the Office a Notice of Completion of Prospecting Operations ("Notice of Completion"). Such notice shall be sent via electronic submission or certified mail separate from all other correspondence.

5.3.5Post-Reclamation - Inspection and Release of Warranties

(1) The Office shall inspect the lands prospected within thirty (30) days, or as soon thereafter as weather conditions permit, after the person prospecting the lands submits a Reclamation Report and requests a reclamation responsibility release that meets the requirements of Rule 4.16.1, including permanent abandonment of all prospecting drill holes as required by Rule 5.4.2 or 5.4.5 . If the Office finds the reclamation satisfactory, the Office shall release the applicable Financial Warranty.

(2) The Financial Warranty shall not be held for more than thirty (30) days after the date the Office determines that reclamation has been completed satisfactorily (including permanent abandonment of all prospecting drill holes).

5.3.6Compliance with State and Federal Laws

All Prospecting shall be conducted in such a manner as to comply with all applicable local, state and federal laws, including but not limited to air and water quality laws and regulations, the Act, and these Rules and Regulations.

5.4ABANDONMENT OF PROSPECTING DRILL HOLES

5.4.1General Provisions

(1) Without regard to the one thousand six hundred (1,600) square foot limitation in Section 34-32-103(12), all prospecting drill holes shall be permanently plugged, sealed or capped pursuant to the requirements of these Rules immediately following the drilling of the hole and the collection of drill hole information; unless provision is made to temporarily abandon the hole, pursuant to Rule 5.4.3 to maintain the hole for purposes of monitoring pursuant to Rule 5.4.4, or to convert the hole to a water well pursuant to Rule 5.4.5.

(2) This Rule shall not apply to holes drilled within the affected area in conjunction with a mining operation for which the Board or Office has issued a permit, nor to wells or holes drilled for the purposes of coal exploration, exploration or removal of oil and gas, nor to geothermal wells or water wells, nor to holes drilled from within underground mine workings. For purposes of this Rule, "permanent abandonment" of a prospecting drill hole shall be defined as abandonment in conformance with the requirements of Rules 5.4.2 or 5.4.5, or inclusion within the permit boundary of a mining operation for which the Board or Office has issued a Permit.

(3) Permanent abandonment shall be attested by the submission of a final report, as described in Rule 5.7.

5.4.2Permanent Abandonment of Prospecting Drill Holes

(1) Any drill hole which evidences artesian flow of groundwater to the surface shall be plugged with neat cement grout, or a similar material sufficient to prevent such artesian flow, as approved by the Office. The Prospector shall exercise care in evaluating the existence of artesian flow in fluid, cuttings, rock flour, or mud drilled holes, in which artesian flow may be temporarily inhibited by the presence of the drilling fluid or mud.

(2) Any drill hole which encounters an aquifer in consolidated rock formations, shall be sealed, utilizing a high quality sodium bentonite type gel, specifically developed for use as an abandonment fluid, or an equivalent material or technique as approved by the Office.

(3) Any drill hole limited to unconsolidated material and penetrating less than ten (10) feet into bedrock, shall be backfilled with materials removed from the drill hole, or an equivalent material or technique as approved by the Office. If the materials removed from the hole during drilling are inadequate to backfill the drill hole, materials representative of the undisturbed unconsolidated materials shall be backfilled into the drill hole.

(4) Any drill hole that penetrates saturated unconsolidated materials and continues more than ten (10) feet into bedrock shall be abandoned in a manner sufficient to prevent inter mixture of aquifers.

(5) Any drill hole that penetrates unsaturated unconsolidated materials and continues deeper than ten (10) feet into bedrock, but does not encounter an aquifer, shall be securely capped, as approved by the Office.

(6) The Prospector shall submit to the Office a copy of the final report required under Rule 5.7.

5.4.3Temporary Abandonment of Prospecting Drill Holes

A prospecting drill hole may be temporarily abandoned without being permanently plugged or sealed. However, no drill hole which is to be temporarily abandoned without being plugged or sealed shall be left in such a condition as to allow fluid communication between aquifers, consistent with the Rules and Regulation for Water Well Construction, Pump Installation, and Monitoring and Observation Hole/Well Construction ("Water Well Construction Rules"), 2 CCR 402-2, and specifically Rules 10.1 and 10.4.5 of the Water Well Construction Rules, and their applicable subparagraphs therein. Such temporarily abandoned drilled holes shall be securely capped in a manner that prevents unauthorized entry and injury to persons and animals. (Copies of the above-referenced Rules may be reviewed at the Division of Water Resources.)

5.4.4Conversions to a Monitoring Well

A prospecting drill hole may be converted to a monitoring well for the purpose of groundwater or geophysical monitoring, if the Prospector conducting the prospecting:

(a) has obtained the necessary permit from the State Engineer (Division of Water Resources);

(b) cases and seals the drill hole in accordance with the requirements of the Water Well Construction;

(c) caps the drill hole to prevent unauthorized entry and injury to persons and animals; and

(d) submits to the Office a copy of the "Well Construction and Test Report" submitted to the Division of Water Resources describing the method and materials used in casing and sealing the drill hole to prevent commingling of aquifer waters.

5.4.5Use as, or Conversion to, a Water Well

(1) If any prospecting drill hole or monitoring well will ultimately be used as, or converted to, a water well:

(a) the user of the water well must have obtained an approved well permit from the Colorado Division of Water Resources, in accordance with Articles 90, 91 and 92 of Title 37, C.R.S., prior to drilling and construction of the well; and

(b) the Prospector shall submit to the Office the permanent abandonment report required by Rule 5.7 with an attached copy of the completely executed "Well Construction and Test Report," submitted to the Colorado Division of Water Resources as required by the Board of Examiners of the Water Well Construction and Pump Installation Contractors.

(i) The Prospector need not complete those portions of the permanent abandonment report duplicating information contained on the "Well Construction and Test Report."

(2) The user of the water well may assume the Prospector's responsibility for maintenance of the temporary abandonment and completion of the permanent abandonment of a prospecting drill hole or monitoring well proposed to be converted to a water well, if the following requirements are satisfied:

(a) the user of the water well submits a copy of the completely executed well permit to the Mined Land Reclamation Office; and

(b) the user of the water well and the Prospector submit a completely executed "Request for Transfer of Responsibility for Abandonment of a Exploration Drill Hole Converted to a Water Well" to the Office.

5.5SURFACE RECLAMATION

5.5.1General Requirements

All lands affected by drilling must be reclaimed to a condition appropriate for the land use existing prior to prospecting, or other beneficial use, upon completion of prospecting.

5.5.2Specific Requirements

Reclamation shall be completed consistent with all applicable requirements of Rule 3.1 and the following:

(a) trash must be removed from the site;

(b) vegetation cleared from the site must be properly disposed of or dispersed;

(c) drill cuttings must be spread to a depth no greater than one half (1/2) inch or buried in an approved disposal pit;

(d) mud pits, excavations, trenches, or other disturbance shall be backfilled and graded to blend with the surrounding land surface;

(e) if vegetative cover was destroyed, an appropriate seed mix shall be used in the first normal period favorable for planting;

(f) if necessary to assure successful revegetation, the drill site area shall be scarified, mulched and the seed covered;

(g) noxious weeds shall be controlled within the area affected by the prospector; and

(h) existing roads which are to remain as permanent roads after prospecting activities are completed, shall be left in a condition equal to or better than the pre-prospecting condition.

5.6ANNUAL REPORT

(1) An annual report must be submitted by the anniversary date of the Notice of Intent (NOI) approval for each year until a reclamation responsibility release is granted. The Annual Report shall include all information specified on the Annual Report Form, in the format required by the Office, and specifically:

(a) the prospector and contact person's name, address and telephone number, as set forth in Rules 5.1.2 and (c);

(b) the name, address and telephone number of the surface landowner where prospecting has occurred;

(c) a description of the prospecting activity that has occurred during the preceding year, to include the location of new surface drill holes, mud pits, excavations, rock dumps, adits, shafts, trenches, pits, roads and structures;

(i) if applicable, a description of the manner in which shafts, adits and other mine openings are safeguarded from unauthorized entry both during and after prospecting;

(d) a description of reclamation that has occurred during the year and during the preceding years;

(e) the date that the prospecting activity has ended or will end;

(f) an updated map showing the location of all holes drilled, mine openings, any roads constructed, areas disturbed and areas reclaimed to date, including identification of disturbance and reclamation activities which have occurred in the preceding year. Prospecting disturbance and reclamation must be identified on a site map of adequate scale to field locate these areas, which may include;

(i) coordinates reported in latitude and longitude in degrees, minutes and seconds or in decimal degrees to an accuracy of at least five (5) decimal places (e.g., latitude 37.12345 N, longitude 104.45678 W); or

(ii) coordinates based on the Universal Transverse Mercator (UTM) North American Datum (NAD). For UTM, the Prospector will need to specify NAD 1927, NAD 1983 or WGS 84, and the applicable zone, measured in meters.

(g) documentation, in a manner acceptable to the Office, showing that the Financial Warranty remains in place and is adequate to fully reclaim the approved prospecting site disturbance.

(h) signature(s) and signature date(s) of the person or organization responsible for prospecting, as set forth in Rule 5.1.2(b), attesting to the accuracy of the information contained therein.

(2) Failure to submit an annual report for two (2) consecutive years shall constitute evidence of abandonment of the prospecting activities. The Office may issue a letter stating its reason(s) to believe a site has been abandoned where the annual report has not been received within sixty (60) days following the due date of the second annual report. Any appeal of this determination shall follow the procedures set forth in Rule 1.4.11.

(3) Annual reports filed before June 2, 2008, shall be confidential. Annual reports filed on or after June 2, 2008, shall be a matter of public record unless designated by the prospector as confidential pursuant to the provisions of Rule 1.3 . The provisions of Rule 1.3 shall apply to a request for a Board determination as to whether information designated by the prospector as confidential should remain confidential.

(4) On the anniversary date of the Notice of Intent approval, the Prospector shall submit to the Office an annual fee as specified in Section 34-32-127(2)(a)(IV)(G), C.R.S.

5.7FINAL REPORT

(1) No later than sixty (60) days after the completion of the abandonment of any drill hole which has artesian flow at the surface, or no later than twelve (12) months after the completion of the abandonment of any other drill holes, the Prospector shall submit to the Office a final report containing:

(a) the date of completion of prospecting activity;

(b) the location of prospecting disturbance and reclamation at a scale adequate to accurately field locate these areas, as provided for in Rule 5.6(f);

(c) for holes having artesian flow at the surface, the estimated rate of flow (if such is known); and

(d) a description of the plugging, sealing, and capping techniques used, including the following information when applicable:

(i) When mud is used for abandonment, the description shall include the viscosity (marsh funnel viscosity) of the mud when the drill hole reached bottom, the trade name of the abandonment mud utilized, and the final viscosity (marsh funnel viscosity) of the abandonment mixture; or

(ii) When cement is used to abandon the drill hole, the description shall include a description of the cement grout mixture utilized to seal and plug the hole.

(2) In the case of closely spaced drill holes having similar geologic and hydrologic characteristics, the Prospector may, with the approval of the Office, submit a single consolidated final report including the locations of all drill holes, and the abandonment technique.

(3) As to final reports filed before June 2, 2008, the final report and all information contained therein shall be confidential in nature and shall not be matter of public record. As to final reports filed on or after June 2, 2008, the final report and all information contained therein shall be a matter of public record unless designated by the prospector as confidential pursuant to the provisions of Rule 1.3 . The provisions of Rule 1.3 shall apply to a request for a Board determination as to whether information designated by the prospector as confidential should remain confidential.

(4) The final report shall be signed by the Prospector or the prospector's authorized contact, as set forth in Rule 5.1.2, attesting to the accuracy of the information contained therein.

5.8NO WAIVER OF ADMINISTRATIVE REQUIREMENTS

The Director of the Office may not waive any of the administrative reporting provisions of this Rule 5.

2 CCR 407-1-5

38 CR 05, March 10, 2015, effective 3/30/2015

42 CR 12, June 25, 2019, effective 7/15/2019

45 CR 12, June 25, 2022, effective 7/15/2022