Formal Extraction Permit: quarries, rivers, dredging below the water table and the right to be heard

It is Rule 3.5.9 of Chapter 3.5 of Joint Regulation No. 9473: the Formal Permit for the extraction, excavation, removal and dredging of the earth’s crust components. It covers who it applies to, the special provisions for working below the water table and for commercial extraction in rivers, everything that is filed, the additional requirements by type of bed, renewal, validity, amendments, publication of the edict, investigative public hearings with the right of intervention, and review of the final determination. The smaller permits — the Simple and the Public Infrastructure Maintenance Permit — and the explosives rules have their own guides on this site, written from the same reading of the complete chapter.

A Formal Permit is required for every extraction, excavation, removal and dredging request that does not qualify for an exemption and meets one or more of seven criteria: that the activity be on private land or in watercourse beds located on private or public land; that it be associated with the use of maritime-terrestrial public-domain property under a concession; that it involve moving more than one thousand cubic metres of sand or gravel or more than five thousand cubic metres of any other material; that it be for commercial or profit purposes; that it involve operating a quarry; that it be carried out below the water table on private land and not be incidental to a work authorised by OGPe; or that the surplus material be destined for commercial purposes, except where processed under an Incidental Operational Single Permit. Meeting one is enough.

• Complying with the General Requirements for every filing before OGPe, listed in Rule 2.1.9 of Volume II, in addition to the Formal Permit’s specific requirements.Verified against the official source
• Certifying that the proposed activity will not impair health, safety, order or the public interest.Verified against the official source
• Identifying the water bodies and natural systems within the area to be impacted and within a radius of five hundred metres of its perimeter.Verified against the official source
• In rivers: not excavating more than one metre deep, keeping a minimum setback of one metre from the banks measured from their base, and keeping four hundred metres on both sides of any fixed construction within or over the bed.Verified against the official source
• On public-domain property: paying the DRNA two dollars for each cubic metre of material extracted, excavated, removed and dredged.Verified against the official source
• Below the water table: dredging by a process of simultaneous backfilling, not creating the pit closer than fifty metres from rivers nor ten metres from other water bodies, wetlands, waterlogged land, routes or structures, and installing a clear and legible sign reading PELIGRO - AGUAS PROFUNDAS - PROHIBIDO BAÑARSE.Verified against the official source
• Below the water table: keeping a guard or watchman at the open pit during the hours when dredging is not being carried out, especially at night, to prevent people, especially children, from entering the danger area.Verified against the official source
• Publishing the notice OGPe prepares and sends in a newspaper of general circulation in Puerto Rico, for at least one day, and uploading to the application number the publication affidavit and a copy of the notice with the date visible.Verified against the official source

• Restoration Plan explaining the measures to repair the impairment of the physical and biotic environment, with the staged restoration method, the estimated time to complete it, how drainage, final topographic levels and topsoil will be restored, and the reforestation measures.
• Topography and survey plan certified by the professional who prepared it, at a minimum scale of 1:5,000, with previously altered areas, the sequence of sectors to be extracted, the final level, the final slopes, runoff management and discharge, at least two representative profile lines, the volumetric reserve calculation, the abutting owners’ names, the abutting constructions, public infrastructure and legal easements.
• Recent vertical aerial photo at a minimum scale of 1:20,000, with the flight date, clearly and exactly delimiting the proposed area.
• Registry Certification of the finca issued not more than sixty calendar days before, with the charges or encumbrances affecting it; Certification of Available Reserve; and Certification of no debt under Act No. 132.
• Habitat-categorisation certification issued by the DRNA and, where a conservation easement is required, the deed from the DRNA constituting it in its favour.
• ICP recommendation where the area has been predetermined as a zone of historic or archaeological value; the municipality’s recommendation if a municipal road is involved; and the AAA’s recommendation for extraction in rivers used as water intakes downstream of the requested extraction.
• In a river bed: a survey and boundary plan sealed and signed by a professional authorised to practise surveying in Puerto Rico, delimiting the bed or reservoir including the faja verde, with the points identified on the plan and on the ground visibly and permanently, a 1:20,000 location map, a cross-section plan, a base line and a survey table with the bed’s geometry.
• Below the water table: a detailed plan at a scale no greater than 1:500 with contour intervals of not less than half a metre; a boring survey with exploratory bores spaced not more than one hundred metres apart and drilled to a minimum depth of five metres; the runoff and underground drainage patterns with their analysis; and the location of any water well within a radius of five hundred metres.
• To renew: a sworn declaration that the conditions have not changed, evidence of having installed the filing signs under Rule 2.1.12 of Volume II, a certificate of no debt under Act No. 132, a certification of available reserve, a copy of the permit to be renewed with its plan and, for a corporation, a current Certificate of Good Standing.

1. 1

   Step 1: The seven situations that require a Formal Permit

   Every request that does not qualify for an exemption and meets one or more of these criteria requires a Formal Permit: that the activity be on private land or in watercourse beds located on private or public land; that it be associated with the use of maritime-terrestrial public-domain property under a concession; that it involve moving more than one thousand cubic metres of sand or gravel, or more than five thousand cubic metres of any other earth-crust material; that it be for commercial or profit purposes; that it involve operating a quarry; that it be carried out below the water table on private land and not be incidental to a work authorised by OGPe; and that the surplus material, whatever its nature, be destined for commercial purposes, except where processed under an Incidental Operational Single Permit.

2. 2

   Step 2: Below the water table: simultaneous backfill and a capped pit

   Where a permit is sought below the water table and pits, ponds or lakes are created, dredging is done by a process of simultaneous backfilling, with solid fragments of limestone, igneous rock or similar material whose characteristics are presented at application and which allows the free flow of interstitial waters. The dredging rate follows the availability of fill material, and the fill must be pre-arranged so its exhaustion is anticipated and the pit can be closed before it runs out. Sand dredging is permitted creating a pit not exceeding five hundred square metres of surface, to a maximum depth of four metres below the water table, subject to variation according to ground conditions or acceptable technical justification.

3. 3

   Step 3: The sign, the watchman and the distances

   A clear and legible sign must be installed beside the open pit reading: "PELIGRO - AGUAS PROFUNDAS - PROHIBIDO BAÑARSE". The pit may not be created closer than fifty metres from rivers, nor ten metres from other natural or artificial water bodies, wetlands or waterlogged land, nor from land communication routes or structures. And the permit holder must keep a guard or watchman at the open pit during the hours when dredging is not being carried out, especially at night; that watchman prevents people, especially children, from entering the danger area.

4. 4

   Step 4: How the pit is closed, and when it may stay open

   On finishing the dredging, the pit’s final fill level must be at least one metre above the ground level existing before the dredging, to compensate for settlement, and the permit holder must fully comply with all the Restoration Plan’s measures. Leaving the pond open is authorised only where it is linked to a project requiring it that OGPe approved, to an agricultural project, or to habitat creation or mitigation for wildlife management or analogous public-interest projects. And no below-water-table permit is issued unless acceptable technical justification shows viability without affecting the resource: the effects on the aquifer and on water quality are considered, and the applicant must certify that the activity does not fall on any critical-state water area or district under Article 5(d) of Act No. 136 of 1976.

5. 5

   Step 5: Rivers: one metre deep and four hundred from structures

   For commercial extraction in rivers, the maximum depth to be excavated is one metre. The extraction keeps a minimum setback of one metre from the river’s banks, measured from their base. And a distance of four hundred metres is kept on both sides of any fixed construction, within or over the river bed. Moreover, every permit holder pays the DRNA two dollars for each cubic metre of material extracted, excavated, removed and dredged on public-domain property.

6. 6

   Step 6: The Operations Register and the traceability of each load

   The permit holder keeps an Operations Register in the form the DRNA requires, including the corresponding Regional Office and the name of the guard in charge, the supervisor’s name, the permit holder’s name, the sale date, the type of material, the volume dispatched, the licence or plate number of the vehicle transporting the material and its load capacity, and the material’s destination. These registers are available for inspection by DRNA or Planning Board officials at all times. The permit holder gives the original sale register to the buyer, who keeps it to prove origin and destination, and must have copies of the conduces available. Officials may intervene the permit-holding firm’s physical and digital files and order independent audits. And the monthly report to the DRNA carries all the month’s sale registers, in strict numerical order, with equality between the quantity registered and the quantity deposited in the buyer’s vehicle.

7. 7

   Step 7: What is filed

   Besides the General Requirements of Rule 2.1.9 of Volume II, what is needed is the location of the area to be impacted; the finca’s total cabida and the extraction area’s cabida in cuerdas; the operational method and sequence by phases; the available reserve with an estimate of each phase’s duration in years; the equipment or machinery; the areas already altered by similar activities; the description of the storage, processing and distribution areas, with alternates; how the activity will meet an economic, industrial or other need; the certification that it will not impair health, safety, order or the public interest; the identification of water bodies and natural systems within the area and within a radius of five hundred metres; the Restoration Plan; the certified topography and survey plan at a minimum scale of 1:5,000; the recent vertical aerial photo at 1:20,000 with the flight date; the Certification of Available Reserve; the Registry Certification not more than sixty days old; the critical detonation design if explosives are used; the Good Standing if a corporation; the DRNA’s habitat-categorisation certification; the certification of no debt under Act No. 132; the sign notice; and the ICP’s, the municipality’s and the AAA’s recommendations where they apply.

8. 8

   Step 8: Additional requirements depending on where you work

   In a private watercourse bed — permanent, intermittent or dry — you also need a plan clearly delimiting the bed including the legal easements for public uses, cross-sections at intervals of not more than one hundred metres showing topographic levels and the bed’s configuration, and a boundary conformity where the bed is the boundary of two fincas of different owners. In a river bed you need a survey and boundary plan sealed and signed by a professional authorised to practise surveying, delimiting the bed or reservoir including the faja verde, with the points identified on the plan and on the ground visibly and permanently, a 1:20,000 location map, a cross-section plan, a base line and a survey table with the bed’s geometry, plus the studies deemed necessary, such as the Vertical Bed Stability Study and granulometry.

9. 9

   Step 9: Validity and renewal

   The Formal Permit, original or renewal, may have a validity of one to five years, or the maximum time permitted by law. But on public-domain property the validity is not greater than two years. To renew, you must file through the SUI a sworn declaration that the conditions stated in the permit being renewed have not changed — title, rustic character, cabida, encumbrances — nor has the environmental document originally filed; evidence of having installed the filing signs under Rule 2.1.12 of Volume II; the certificate of no debt under Act No. 132; the certification of available reserve; a copy of the permit to be renewed with its plan; and, if the proponent is a corporation, the current Certificate of Good Standing from the Department of State.

10. 10

    Step 10: The edict: what it says and who answers if it is wrong

    Once the application is filed and the requirements met, the authorised official prepares and sends the applicant a notice for publication in a newspaper of general circulation in Puerto Rico. The notice carries the application number stating whether original or renewal, the applicant’s name and postal address, the type of activity, the site’s physical address with barrio, road and access kilometre, the daily quantity requested, the type of material, notice of the right to appear and be heard, whether or not explosives are used, and the public hearing details if applicable. It is published for at least one day, and afterwards the publication affidavit and a copy of the notice with the date visible are uploaded to the application number. And note: if the information the applicant supplied leads to publishing incorrect or incomplete information, the applicant is fully responsible for publishing additional edicts or clarification notes.

11. 11

    Step 11: If you are a neighbour: thirty days to ask to be heard

    Every natural or juridical person wishing to appear and be heard in relation to an application for a new permit or the renewal of one in force must file an Intervention Request through the SUI, with their name, postal address and e-mail — and their lawyer’s, if any — and the facts on which they base their right to be heard. The filing must be made within thirty calendar days of the edict’s publication date. If the notice is for an amendment to a permit in force, the term to comment is ten calendar days. The OGPe Assistant Secretary may, at their discretion, allow a filing outside the term where justified causes are expressed. And there is an access point worth knowing: under Act No. 132 the Assistant Secretary may require those who request hearings to pay the expenses and professional fees OGPe incurs, but may waive that payment for people who show they are of scarce means.

12. 12

    Step 12: Notifying the applicant, and the strict deadlines

    Every party wishing to appear must inform the applicant or permit holder, delivering directly or through their lawyer a copy of the filing, with proof or record of delivery, for the evaluation of OGPe’s Legal Division. That notice may be given personally, by e-mail or by post, and must be carried out within ten calendar days of filing the Intervention Request. The hearing officer assigned the case will not schedule an investigative public hearing before twenty calendar days from the participation request’s filing date. The regulation closes the section by saying these requirements are of strict compliance.

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    Step 13: What an investigative public hearing can produce

    OGPe may at any time, on its own initiative or at an affected party’s request, conduct investigations and order investigative public hearings on comments, controversies or objections about an application, or about acts done or that might be done by any permit holder, which in the Assistant Secretary’s judgement would endanger public safety, health or welfare. After the hearing, the Hearing Officer or Technical-Legal Panel who presided prepares a Report and Recommendation, and the Assistant Secretary issues the order they consider most beneficial: bringing a criminal charge under Article 13 of Act No. 132, ordering formal quasi-judicial hearings to impose an administrative fine, ordering the denial or grant of the original or renewal application, revoking a permit already granted, or taking any other measure under the law. And any final determination is reviewable under Chapter 11.1 of the Regulation.

The Formal Permit, its amendments and its renewal are filed with OGPe through the SUI. The Intervention Request to be heard at an investigative public hearing is also filed through the SUI. The two dollars per cubic metre on public-domain property go to the DRNA, and the sale registers go with the monthly report to the DRNA; DRNA and Planning Board officials may inspect the registers at all times and intervene the permit-holding firm’s physical and digital files.

• Filing as a Simple Permit an activity that exceeds one thousand cubic metres of sand or gravel, or that is for commercial or profit purposes.
• Submitting a Registry Certification issued more than sixty calendar days before.
• Omitting the certification that the activity will not impair health, safety, order or the public interest.
• Identifying water bodies only within the area to be impacted and not within the five-hundred-metre radius the rule requires.
• Opening a below-water-table pit closer than fifty metres from a river, or without the danger sign and without a night watchman.
• Filling the pit to the original ground level instead of one metre above, which is what compensates for settlement.
• Excavating more than one metre deep in a river, or coming closer than four hundred metres to a fixed construction in the bed.
• Not keeping the Operations Register with the vehicle’s plate number and the material’s destination.
• Letting the thirty calendar days from the edict pass without filing the Intervention Request.
• Filing the Intervention Request and not notifying a copy to the applicant within the following ten calendar days.

These are the government pages this guide is based on.

• Oficina de Gerencia de Permisos (OGPe)

  OGPe

  docs.pr.gov

• Permit Management Office

  ogpe

  ogpe.pr.gov

• Department of Natural and Environmental Resources

  drna

  www.drna.pr.gov