MARBLE — A mining company that violated the Clean Water Act is proposing as a solution the very move that broke federal law in the first place: making the relocation of a creek permanent.

Representatives from local groups expressed frustration that the permitting process for the creek relocation is happening after the fact, and they said they plan to submit comments to the U.S. Army Corps of Engineers, the agency overseeing the permit application.

In March, the Army Corps determined that Colorado Stone Quarries — the operator of the Pride of America Mine above the town of Marble — violated the Clean Water Act when it moved Yule Creek to make way for a mining road without obtaining a permit from them. CSQ is now retroactively applying for that permit, known as a 404 individual permit, and presenting seven different alternatives for remedying the situation.

CSQ says it believed in good faith that the work did not require a permit.

“It’s a classic case of asking for forgiveness after doing something they shouldn’t have done,” said Dale Will, a board member of the Crystal Valley Environmental Protection Association (CVEPA). “They can’t just physically restore it and call it done. There needs to be some kind of ongoing monitoring to ensure the fully ecological functioning of the creek is achieved.”

Representatives from Pitkin County Healthy Rivers have expressed concern that moving the creek could have kicked up sediment, which could harm fish habitat downstream.

In its permit application, the quarry outlines seven potential alternatives: no action; mining somewhere else; constructing a bridge over Yule Creek; renegotiating a right of way with Gunnison County; returning the creek to its former location, on the west side of a ridge; leaving the creek where it is; or rediverting the creek to an elevated western channel using 180 feet of culvert.

But the company deems only the last three of these options feasible.

“Following a practicability evaluation, only alternatives 5, 6 and 7 are deemed reasonable alternatives that appropriately balance the execution of CSQ’s long-term mining plan with environmental and public interests,” the application reads.

Of the three, CSQ’s preference is to leave Yule Creek in its current alignment — on the eastern side of Franklin Ridge — saying it is a reasonable and practical choice that limits impacts and results in the closest return to pre-diversion conditions for the stream.

“Alternative 6 provides the most efficient, environmentally sound option for site-wide reclamation and is the only alternative that does not require another diversion, i.e., re-diversion of Yule Creek,” the permit application reads.

Yule Creek can be seen from a small viewing area at the entrance to the Pride of America Mine, three miles up County Road 3C from the town of Marble. The creek now flows on the east side of Franklin Ridge because mine operators moved it without a permit from the U.S. Army Corps of Engineers. Credit: Heather Sackett/Aspen Journalism

Public comment

The permit application will be open for public comment through Dec. 16, a deadline that was extended by a month at the request of the Crystal River Caucus. Caucus chair John Emerick said after reviewing the quarry’s application, he agrees that since the damage has already been done, leaving Yule Creek in its current eastern alignment is probably the best course of action.

“I’m tending to agree with alternative 6, which is the stone quarry’s preferred alternative, just because it does get the channel away from a lot of the active mining and away from the area where there was a previous diesel spill,” Emerick said.

Emerick’s comments do not necessarily reflect the official stance of the caucus; the caucus decided at its Thursday meeting to submit comments in support of protecting and enhancing Yule Creek and the Crystal River Watershed. The Army Corps will have the final say on what should be done to the creek.

The quarry site and Yule Creek are in Gunnison County, but the creek is a tributary of the Crystal River, which flows through Pitkin County.

“We want to make certain any remedial actions required by the Army Corps are properly designed and carried out so they don’t result in negative impacts downstream on the Crystal River,” said caucus board member Kate Hudson at Thursday’s caucus meeting.

In the fall of 2018, CSQ diverted a 1,500-foot section of Yule Creek from its natural channel on the west side of Franklin Ridge, a rock outcropping, to the east side of the ridge so it could build an access road. Operators piled the stream bed with fill material, including marble blocks.

Although this move probably spared Yule Creek the impacts of a diesel spill in October 2019, it was done without the proper permits or oversight, according to the Army Corps. Under Section 404 of the Clean Water Act, a project requires a permit from the Army Corps if it includes the discharge of dredged or fill materials into waters, such as rivers, streams and wetlands. In this case, the company applying for the permit after the fact constitutes the enforcement action.

CSQ was fined $18,600 by the state Division of Reclamation, Mining and Safety (DRMS) for the 5,500-gallon diesel spill. The spill complicates the creek relocation because moving it back to where it was would put it into the area where the spill took place, which is now the site of ongoing remediation and monitoring.

According to Susan Nall, chief of the Colorado West Section of the Army Corps, this 404 permit application is different than most that her office receives because CSQ is asking for permission to do the work after the fact. Nall said the Army Corps’ goal is to process permit applications within 120 days.

Quarry General Manager Daniele Treves said in a prepared statement that the company has made a number of improvements over the past year to reduce the risk of future diesel spills and to improve response actions if an issue should occur, including updating and enhancing training and reporting procedures.

The statement said monthly water-quality monitoring has found that no diesel fuel has been detected in Yule Creek and the current alignment of the creek provides the greatest separation between the waterway and active mining operations.

But Will said CVEPA’s concerns go beyond the immediate issues of the diesel spill and stream relocation. In 2016, DRMS granted the quarry a permit for a 114-acre expansion for a total of 124 permitted acres. According to CSQ, there are enough marble reserves contained in its six galleries to continue mining at the current rate for more than 100 years.

“I think that quarry is here to stay,” Will said. “CVEPA is concerned that the magnitude of that operation under that new permit is a lot larger than anyone realized. If they cannot be brought around to a more responsible philosophy of operations, it’s just going to continue to be one mess after the next.”

Editor’s note: This story was changed to reflect that John Emerick’s comments were not the official stance of the Crystal River Caucus and that Kate Hudson made her comments at Thursday’s caucus meeting.

This story ran in the Nov. 16 edition of The Aspen Times.

Heather Sackett is the managing editor at Aspen Journalism and the editor and reporter on the Water Desk. She has also reported for The Denver Post and the Telluride Daily Planet. Heather has a master’s...