17-81-702. Rights of a critical infrastructure materials operator with a vested critical infrastructure materials use.
(1) As used in this section, "new land" means surface or subsurface land that a critical infrastructure materials operator gains ownership or control of on or before January 1, 2026, regardless of whether that land is included in any applicable permit issued by a political subdivision or a legal nonconforming use.
(2) Notwithstanding a political subdivision's prohibition, restriction, or other limitation on a critical infrastructure materials use adopted after the establishment of the critical infrastructure materials use, the rights of a critical infrastructure materials operator with a vested critical infrastructure materials use include with respect to that existing legal use the right to:
(a) progress, extend, enlarge, grow, or expand the vested critical infrastructure materials use to any contiguous land that the critical infrastructure materials operator owns or controls before May 7, 2025;
(b) expand the vested critical infrastructure materials use to new land that is contiguous land to the surface or subsurface land on which the critical infrastructure materials operator has a vested critical infrastructure materials use, including the surface or subsurface land under Subsection (1)(a);
(c) use, operate, construct, reconstruct, restore, extend, expand, maintain, repair, alter, substitute, modernize, upgrade, and replace equipment, processes, facilities, and buildings, on any surface or subsurface land that the critical infrastructure materials operator owns or controls before May 7, 2025;
(d) on any surface or subsurface land that the critical infrastructure materials operator owns or controls before May 7, 2025:
(i) increase production or volume;
(ii) alter the method of extracting or processing, including with respect to the vested use, the right to stockpile or hold in reserve critical infrastructure materials, to recycle, and to batch and mix concrete and asphalt; and
(iii) extract or process a different or additional critical infrastructure material than previously extracted or processed on the surface or subsurface land; and
(e) discontinue, suspend, terminate, deactivate, or continue and reactivate, temporarily or permanently, all or any part of the critical infrastructure materials use.
(3)
(a) As used in this Subsection (3), "applicable legislative body" means the legislative body of each:
(i) county in whose unincorporated area the new land to be included in the vested critical infrastructure materials use is located; or
(ii) municipality in which the new land to be included in the critical infrastructure use is located.
(b) A critical infrastructure materials operator with a vested critical infrastructure materials use is presumed to have a right to expand the vested critical infrastructure materials use to new land.
(c) Before expanding a vested critical infrastructure materials use to new land, a critical infrastructure materials operator shall provide written notice:
(i) of the critical infrastructure materials operator's intent to expand the vested critical infrastructure materials use; and
(ii) to each applicable legislative body.
(d)
(i) An applicable legislative body shall:
(A) hold a public meeting or hearing at the applicable legislative body's next available meeting that is no later than 30 days after receiving the notice under Subsection (3)(c); and
(B) provide reasonable, advance, written notice of the intended expansion of the vested critical infrastructure materials use and the public meeting or hearing to each owner of the surface estate of the new land.
(ii) A public meeting or hearing under Subsection (3)(d)(i) serves to provide sufficient public notice of the critical infrastructure materials operator's intent to expand the vested critical infrastructure materials use to the new land.
(e)
(i) After the public meeting or hearing under Subsection (3)(d)(i), a critical infrastructure materials operator may expand a vested critical infrastructure materials use to new land without any action by an applicable legislative body, unless the applicable legislative body finds by the preponderance of the evidence on the record that the expansion to new land will endanger the public health, safety, and welfare.
(ii) If the applicable legislative body makes the finding of endangerment described in Subsection (3)(e)(i), Subsection (5) applies.
(4) If a critical infrastructure materials operator expands a vested critical infrastructure materials use to new land, as authorized under this section:
(a) the critical infrastructure materials operator's rights under the vested critical infrastructure materials use with respect to land on which the vested critical infrastructure materials use occurs apply with equal force after the expansion to the new land; and
(b) the critical infrastructure materials protection area that includes land on which the vested critical infrastructure materials use occurs is expanded to include the new land.
(5)
(a) If the applicable legislative body makes the finding of endangerment described in Subsection (3)(e):
(i) the critical infrastructure materials operator shall submit to the applicable legislative body the critical infrastructure materials operator's plan for expansion under this section;
(ii) by no later than 90 days after receipt of the plan for expansion described in Subsection (5)(a)(i), the applicable legislative body shall notify the operator of:
(A) evidence that the expansion to new land will endanger the public health, safety, and welfare; and
(B) proposed measures to mitigate the endangerment of the public health, safety, and welfare; and
(iii) the applicable legislative body shall hold a public hearing by no later than 30 days after the date the applicable legislative body complies with Subsection (5)(a)(ii) to present mitigation measures proposed under Subsection (5)(a)(ii).
(b) The applicable legislative body may impose mitigation measures under this Subsection (5) that are reasonable and do not exceed requirements imposed by permits issued by a state agency such as an air quality permit.
(c) A political subdivision may not prohibit the expansion of a vested critical infrastructure materials use if the critical infrastructure materials operator agrees to comply with the mitigation measures described in Subsection (5)(b).
(d) The process under this Subsection (5) is not a land use application or conditional use application under Chapter 79, County Land Use, Development, and Management Act.
Renumbered and Amended by Chapter 14, 2025 Special Session 1
