No consensus on Kane Creek mining allegations

Grand County has drafted a determination, awaiting legal review

(Rick Egan | The Salt Lake Tribune) Construction on the Colorado River on the site of that was previously the Kane Creek Campground near Moab, Tuesday, Jan. 30, 2024.

Grand County is investigating allegations that the Kane Creek Preservation and Development is violating land use regulations by removing infill from borrow pits on the eastern side of their property.

Elissa Martin, Grand County’s director of Planning and Zoning, confirmed the county has drafted a letter of determination in response to a Feb. 2 code complaint. As of press time, the letter hadn’t been released due to pending legal review.

“Grand County policy prohibits discussions about ongoing, active, or open code compliance investigations,” said Grand County Commission Administrator Mallory Nassau.

The allegation of land use violations constitutes the latest drama in a high-profile development taking shape on the banks of the Colorado River. Slated to include up to 580 units and 72,000 square feet of commercial space, the development has spurred intense local pushback. The leaders of the project, however, argue they are restoring abused land while falling far short of the permitted density.

The development became highly visible this winter as crews started moving infill from borrow pits on the property’s mesas east of Kane Creek Boulevard to lowlands on the west side.

The work, comprising hundreds of thousands of cubic yards of fill, is happening to raise the river-adjacent lands out of the Colorado’s floodplain.

Local opposition group Kane Creek Development Watch on Feb. 8 released a statement calling the earthwork a “blatant and undeniable” instance of illegal mining.

“We all saw the dirt getting dumped by the river, but we couldn’t really see what the developers were doing up on the benches until people got some drones in the air,” said Laura Long, an organizer with the group. “Once the photos came back, it was pretty upsetting. It’s a strip mine.”

Developers, however, contend the work is fully legal. In an opinion piece published in this newspaper (“Kane Creek developers address ‘mining’ allegations, other issues,” The Times-Independent, Feb. 22), business partners Trent Arnold, Craig Weston and Tom Gottlieb said the work doesn’t fall under the legal definition of mining.

“All of this work is compliant with a permit vetted, authorized and issued by Grand County,” the statement reads. “The ongoing work is 100% within the scope of the permit, is explicitly allowed under existing county and state code and does not constitute ‘mining activities.’”

Currently, developers have a permit to import about 840,000 cubic yards of fill on 65 acres of lowlands.

“Their current grading permit says they can try to fill in the floodplain,” said Dailey Haren, another organizer with Kane Creek Development Watch. “It didn’t say they could strip the hills above. That’s completely banned in that zone so there’s no way they could get a permit for it.”

Under county ordinances, mining is not permitted in the Highway Commercial zone, which per the development’s planning documents constitutes 137 of the property’s 180 acres. The other zone, Range and Grazing, allows mining with a permit.

According to state code, however, mining does not include “the extraction of sand, gravel, and rock aggregate.” Those activities are regulated by counties, not the state, according to Utah Division of Oil, Gas and Mining Public Information Officer Hollie Brown.

Grand County’s land use code does mention the “extraction of sand, gravel, or minerals” as a form of resource extraction that does not explicitly appear in its use table. According to the table, any uses not explicitly listed are not permitted in Highway Commercial and require a permit in Range and Grazing.

Why fill in the first place?

Currently, about 80 acres of the Kane Creek Preservation and Development property, slated for residential construction, mixed-use development and overnight accommodations, lies within the Colorado River floodplain.

Specifically, it’s the floodplain for the “100-year flood,” the metric most commonly used by the Federal Emergency Management Agency. That refers to the flood that has a 1% chance of occurring in any given year, and for the Colorado River upstream of Moab it’s estimated at 86,000 cubic feet per second.

To receive a building permit from Grand County, however, habitable space must lie at least one foot above the estimated floodplain, a standard set by FEMA. That means the Kane Creek developers are raising much of their land and the road between two and 10 feet, according to Arnold.

He said the average depth of infill is six to seven feet for the entire lower portion of the land and estimated it would require between 350,000 and 400,000 cubic yards of infill. Most if it not all of that should come from the borrow pits on the upper portion of the property.

“We’re anticipating minimal outside fill,” Arnold said.

According to Patrick Emery, an engineer with Gordon Geotechnical Engineering in Salt Lake City, six to seven feet is a “pretty common” level of infill.

“I’ve seen up to 30 to 40 feet of infill on sloping sites and steep grades,” Emery said.

Emery said compaction tests and a stable underlying surface are central to ensuring infill is sturdy enough to support buildings.

Arnold said his contractors do compaction tests for every 6 to 8 inches of lift and have separate in-ground instruments that also measure compaction.

“The contractors we use both from a design and engineering standpoint … and the actual folks doing the work, this is fully within their wheelhouse,” Arnold said.

He said the underlying land is “very stable” from a 60-year history of use. Before he and his business partners bought the land, it had sat mostly fallow, hosting a campground and a few tenants. Previously, the lands had been used as a working ranch, housing cows and thousands of chickens. Arnold said he’s seen evidence it may have been farmed at one point.

“Just that action of being utilized creates more compaction than if it was original soils,” he said.

This article originally appeared in The Times-Independent.