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HomeMy WebLinkAboutREVIEW OF A REVISED BC MINING ORDINANCE, BCCC 13, ARTICLE II SURFACE MINING & RECLAMATION 2009-06-18Butte County Department ofDevelopment Selo ices TIM SNELLINGS, DIRECTOR I PETE CALARCO, ASSISTANT DIRECTOR 7 County Center Drive Oroville, CA 95965 (530) 538-7601 Telephone (530) 538-7785 Facsimile http:llwww.huttecounty.netldds June 18, 2009 Butte County Surface Mining Aggregate Operations Committee 25 County Center Drive Oroville, CA 95965 Subject: Review of a Revised Butte County Mining Ordinance, Butte County Code Chapter 13, Article II Surface Mining and Reclamation Recommendation Staff recommends that the Surface Mining Aggregate Operations Committee: 1. Review the proposed revised mining ordinance and attachments to this report; and 2. Provide staff with direction regarding the policy questions outlined below and provide additional comments as desired. Prosect Summary In 2006, the Director of Development Services determined that Butte County's Mining Ordinance (Butte County Code Chapter 13, Article II Surface Mining and Reclamation and included here as Attachment A), last amended in 1993, required revision to be compliant with the current Surface Mining and Reclamation Act (SMARA: PRC Section 2710 et seq.) and its implementing regulations (California Code of Regulations, Title 14, Division 2, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq.) -and Article 9 (Section 3700 et seq.)). In preparing the revised mining ordinance (Attachment B), staff reviewed mining ordinances from Colusa (2003), Contra Costa (2000), Glenn (2005), Nevada (1999), Sacramento (2008) and .Sonoma (1999) Counties. Drafts have been circulated to Butte County's mine operators and various interested parties, and the current draft incorporates many changes suggested in comments received by staff. Pursuant to the 0 Butte County Department of Development Services O O Planning Division 0 Repeal and Re -Enactment of Chapter 13, Article Surface Mining and Reclamation ❑ Surface Mining Aggregate Operations Committee Meeting June 18, 2009 ❑ 1 - 1 - California Environmental Quality Act, staff is preparing an initial study for the revised mining ordinance to determine the extent of environmental review required. The revised mining ordinance is required to be consistent with current SMARA code sections and its implementing regulations. The current draft contains: • New definitions consistent with SMARA; • Inclusion of a detailed biological assessment of the project site and project footprint in permittreclamation plan application requirements; • New SMARA-compliant standards for reclamation; • Updated financial assurance requirements; • Clarification of the permit lapse and idle mine sections, with provisions for appeals by operators; • A determination of vested rights process; • Clarification of minor modifications and substantial changes to permits and substantial deviations to reclamation plans; and • Protection of designated mineral resources in the Butte County General Plan. In November 2008, an initial draft of the proposed mining ordinance was mailed to the operators of Butte County's 22 mines for which inspections and financial assurance review are performed, the Butte County Surface Mining Aggregate Operations Committee, -the Department of Conservation, the Department of Fish and Game, the Butte Environmental Council, the Sierra Club (Yah! Chapter) and the League of Women voters. On December 11, 2008, the initial draft of the proposed mining ordinance was presented to the Planning Commission. No comments were received from the Planning Commission or the public at that hearing. Between January and April, 2009, staff responded to comments received from the Department of Conservation, the Butte Environmental Council and a representative for Granite Construction, Mark Harrison of the Diepenbrock Harrison law firm and, where indicated in Attachments C, D and E, respectively, incorporated changes into the second draft prepared for the April 21, 2009 hearing before the Board of Supervisors. While staff made the requested changes for a number of the comments, the following four issues, representing policy choices for the Board, required further discussion: 1. The public hearing process (Section 13-110) and how determinations regarding mining issues (e.g., applications, amendments, enforcement) are made; 2. Inclusion of a lapse provision (Section 13-111); 3. Consideration of the revocation of a mining permit for an idle operation that does not have the required interim management plan (Section 13-112); and ❑ Butte County Department of Development Services 0 0 Planning Division 0 Repeal and Re -Enactment of Chapter 13, Article Surface Mining and Reclamation ❑ Surface Mining Aggregate Operations Committee Meeting June 18, 2009 ❑ 2 -2- i^N 4. Inclusion of an explicit process for the determination of a vested right to mine (Section 13-114). For a mining industry perspective on these four (and other) issues, please review the comments from attorney Mark Harrison and staff responses in Attachment E. On April 21, 2009, a second draft of the revised mining ordinance was presented to the Board of Supervisors. The Board discussed the April 21 staff report (Attachment F) and provided staff with the following direction: 1. Schedule a meeting with all County surface mine operators to discuss and refine the revised mining ordinance; 2. With comments from the meeting with the operators, convene a meeting of the County's Surface Mining Aggregate Operations Committee and present the revised mining ordinance for their review and comment; 3. Schedule a meeting with the Planning Commission and present the revised mining ordinance with comments from the operators and Committee; and 4. Schedule a meeting with the Board of Supervisors with recommendations with regard to the revised mining ordinance. Representatives from five County operators joined staff on May 28, 2009 to discuss and critique the draft ordinance. The comments received at the operators' meeting and staffs responses to those comments (in italics) are included in Attachment G. Several changes were made to the June 18, 2009 draft mining ordinance included with this report (again, Attachment B). On June 8, 2009, staff received a redline version of the draft presented to the operators from Mark Harrison (included as Attachment H). Although staff did not have time to prepare a full response to Mr. Harrison's redline, several of his proposed changes were already incorporated into the current draft. (A full response to the redline will be prepared for the Planning Commission staff report, expected to be finalized by August 13, 2009.) The redline contains a fairly extensive rewrite of the minor modification definition and Section 13-119 provisions for accommodating minor modifications to either a permit or reclamation plan (and also suggests striking of the "substantial change" definition). A minor modification provision is included in the revised draft to provide operators with better clarity when changes to an operation are sought that do not rise to a level requiring either revision of a permit or amendment to a reclamation plan (both being discretionary actions). Staff will continue to work with Mr. Harrison and any other ❑ Butte County Department of Development Services 0 ❑ Planning Division 0 Repeal and Re -Enactment of Chapter 13, Article Surface Mining and Reclamation 0 Surface Mining Aggregate Operations Committee Meeting June 18, 2009 ❑ 3 -3- interested parties to arrive at a workable definition for minor modifications and would appreciate your Committee's input on this matter. A brief overview of current surface mining in Butte County is included as Attachment I. Requested Action In preparation for the upcoming Planning Commission (tentatively, August 27, 2009) and Board of Supervisor (tentatively, September 29, 2009) hearings for the revised mining ordinance, staff requests your review and comments regarding the attached draft and, in particular, the four issues raised in the staff report for the Board of Supervisors' April 21, 2009 hearing (Attachment F) and subsequently discussed in the staff response to comments at the May 28 operator meeting (Attachment G). If you have any questions, please do not hesitate to contact Senior Planner Chris Thomas (530-538-6706) or Planning Manager Chuck Thistlethwaite (530-538-6572). Sincere P a co, Assistant Director FOR: TIM SNELLINGS, DIRECTOR Attachments: A: Current Butte County Mining Ordinance, Butte County Code, Chapter 13, Article II, Surface Mining and Reclamation B: Proposed Revised Mining Ordinance, June 18, 2009 C: Response to Comments from the Department of Conservation D: Response to Comments from the Butte Environmental Council E: Response to Comments from Mark Harrison F. April 21, 2009 Board of Supervisors Staff Report G. May 28, 2009 Butte County Operator Comments and Staff Response H. June 8, 2009 Mark Harrison Redline Draft of Revised Mining Ordinance I. Butte County Mining Overview ❑ Butte County Department of Development Services 0 0 Planning Division 0 Repeal and Re -Enactment of Chapter 13, Article Surface Mining and Reclamation ❑ Surface Mining Aggregate Operations Committee Meeting June 18, 2009 0 4 -4- i"1 ATTACHMENT PAGE A - Current Butte County Mining Ordinance Butte County Code, Chapter 13, Article II 5 B — Revised Mining Ordinance (June 18, 2009) 15 C — Response to Comments from the Department of Conservation (December 22, 2008) 40 D — Response to Comments from the Butte Environmental Council (January, 2009) 45 E — Response to Comments from Mark Harrison on Behalf of Granite Construction (March 20, 2009) 48 F — April 21, 2009 Staff Report for the Board of Supervisors 60 G — Staff Response to Operator Comments at the May 28, 2009 Meeting 74 H — Mark Harrison Redline Changes to the Revised Mining Ordinance (June 8, 2009) 82 I — Surface Mining In Butte County 107 /0014\ Chapter 13 GRADING AND MINING Article II. Surface Mining and Reclamation Editor's Note * Editor's note—Section 1 of Ord. No. 3083, adopted Aug. 10, 1993, repealed Art. II in its entirety. Formerly, Art. II consisted of §§ 13-101--13-110 and §§ 13-112- 13-115, which pertained to replacement of material displaced in surface mining operations and derived from § 1 of Ord. No. 1827, adopted May 24, 1977, and §§ 1-4, 6, and 7 of Ord. No. 2003, adopted Feb. 13, 1979. Section 2 of Ord. No. 3083 further provided for the addition of a new Art. 11, §§ 13-101--13-116, as herein set out. 13-101 Purpose and intent. (a) The purpose of this article is to implement the provisions of the California Surface Mining and Reclamation Act of 1975 as amended (the "Act," Public Resources Code section 2710 et seq.). (b) It is the purpose and intent of the board of supervisors to create and maintain 140111� an effective and comprehensive surface mining and reclamation policy with regulation -of surface mining operations so as to assure that: (1) Adverse environmental effects are prevented or minimized and that mined lands are reclaimed to a usable condition which is readily adaptable for alternative land use. (2) The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range, and forage and aesthetic enjoyment. (3) Residual hazards to the public health and safety are eliminated. (4) The extraction of minerals is essential to the continued economic well-being of the county and to the needs of society, and that reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety. (5) The reclamation of mined lands as provided in this article will permit the continued mining of minerals and will provide for the protection and subsequent beneficial use of the mined and reclaimed land. (6) Surface mining takes place in diverse areas where the geologic, topographic, /006� climatic, biological and social conditions are significantly different and that 5 reclamation operations and the specifications therefor may vary accordingly. (c) This article shall be reviewed annually and revised, as necessary, in order to ensure that it is in accordance with the state policy for mined lands reclamation and to encourage the mining industry of Butte County. (Ord. No. 3083, § 2, 8-10- 93) 13-102 Definitions. For the purposes of this article, the following words and phrases shall have the meanings respectively ascribed to them by this section: "Committee" means the surface mining aggregate operations committee. The five -member committee appointed by the board of supervisors pursuant to Resolution [No.) 84-197. "Exploration" or "prospecting" means the search for minerals by geological, geophysical, geochemical or other techniques, including, but not limited to, sampling, assaying, drilling, or any surface or underground works needed to determine the type, extent or quality of the minerals present. "Financial assurance" means the financial guarantee provided by the operator to assure the reclamation of all mined lands in the event of default by the operator. Financial assurances are limited to the following forms per section 2773.1 of the Public Resources Code: (1) Surety bonds; (2) Irrevocable letters of credit; (3) Trust funds; and (4) Other forms of financial assurances specified by the board pursuant to section 2773.1(c). Idle mine: "Idle" means to curtail for a period of one year or more surface mining operations by more than ninety (90) percent of the operation's previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date. "Mined lands" includes the surface, subsurface and ground water of an area in which surface mining operations will be, are being, or have been conducted, including private ways and roads appurtenant to any such area, land excavations, working, mining waste, and areas in which structures, facilities, equipment, machines, tools, or other materials or property which result from, or (�1 are used in, surface mining operations, are located. "Minerals" means any naturally occurring chemical element or compound, or groups of elements and compounds, formed from inorganic processes and organic substances, including, but not limited to, sand, gravel, aggregate, coal, peat and bituminous rock, but excluding geothermal resources, natural gas and petroleum. "Mining waste" includes the residual of soil, rock, mineral, liquid, vegetation, equipment, machines, tools or other materials or property directly resulting from, or displaced by, surface mining operations. "Operator" means any person who is engaged in surface mining operations, himself or herself, or who contracts with others to conduct operations on his or her behalf, except a person who is engaged in surface mining operations as an employee with wages at his or her sole compensation. "Overburden" means soil, rock or other materials that lie above a natural mineral deposit or in between deposits, before or after their removal by surface mining operations. "Permit" means any authorization from, or approval by, the county, the absence of which would preclude surface mining operations. "Person" means any individual, firm, association, corporation, organization or partnership, or any city, county, district or the state or any department or agency thereof. "Reclamation" means the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that mined lands are reclaimed to a usable condition which is readily adaptable for alternate land uses and create no danger to public health or safety. The process may extend to affected lands surrounding mined lands, and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization or other measures. "Reclamation plan" means the plan required by the Act, as amended, and meeting all the requirements of section 2772 and 2773 of the Public Resources Code, state administrative guidelines and regulations adopted pursuant thereto, and ordinances and resolutions of the county adopted in accordance therewith. "State board" means State Mining and Geology Board, in the Department of Conservation, State of California. /4"� "State geologist" means individual holding office as structured in section 677 of 7 article 3, chapter 2 of division 1 of the Public Resources Code. "Surface mining operations" means all, or any part of, the process involved in the mining of minerals on mined lands by removing overburden and mining directly from the mineral deposits, open -pit mining of minerals naturally exposed, mining by the auger method, dredging and quarrying, borrow pitting, stream bed skimming, and segregation or stock -piling of mined materials (and recovery of the same), or surface work incident to an underground mine. Surface mining operations shall include, but are not limited to: (a) In-place distillation, retorting or leaching. (b) The production and disposal of mining waste. (c) Prospecting and exploratory activities. (Ord. No. 3083, § 21 8-10-93) 13-103 Scope. (a) The provisions of this article shall apply to the unincorporated areas of Butte County. (b) The provisions of this article are not applicable to: (1) Excavations or grading conducted for farming or on-site construction or for the purpose of restoring land following a flood or natural disaster. (2) Prospecting for, or the extraction of, minerals for commercial purposes and the removal of overburden in total amounts of less than one thousand (1,000) cubic yards in any one location of one acre or less. (3) Surface mining operations that are required by federal law in order to protect a mining claim, if such operations are conducted solely for that purpose. (4) Reclamation of lands mined prior to, but not after, January 1, 1976. (5) Surface mining operations conducted pursuant to vested rights obtained prior to January 1, 1976, except as otherwise provided in section 13-110. (6) Such other surface mining operations that the county determines to be of an infrequent nature, and which involve only minor surface disturbances and are categorically identified by the state board of mining and geology pursuant to sections 2714(d) and 2758(c) of the Public Resources Code. (Ord. No. 3083, § 2, 8-10-93) W 13-104 Permit and reclamation plan requirement. (a) Application. Any person, except as provided in section 2776, Public Resources Code, who proposes to engage in surface mining operations as defined in this article, shall submit an application for a mining permit, reclamation plan and a use permit if the zone requires, to the county department of development services, planning division. The application shall be on a form furnished by the county and shall be full and complete, containing all information required by the Act, as well as any additional information required by the planning division. (b) Filing fee. Each application shall be accompanied by a filing fee in the amount set forth by resolution or ordinance at the time of application submittal. (Ord. No. 30831 § 29 8-10-93) 13-105 Application review procedure. Upon deeming the application complete, the planning division shall send copies of the mining permit application and reclamation plan to the director of department of conservation, county public works department, the committee and other responsible agencies. Within ten (10) days of the distribution of the permit emol".) application and reclamation plan, the committee shall meet to review and make recommendations to staff. The planning division shall be responsible for developing an agenda and setting the time and place for the committee meeting. The planning division will be responsible for conducting the initial study to determine the project's status in respect to the California Environmental Quality Act, Public Resources Code section 21000 et seq. (Ord. No. 3083, § 29 8-10-93) 13-106 Financial assurances. The planning commission shall require financial assurances as necessary to conform to the provisions of this article and with section 2773.1 of the Public Resources Code. The mine operator or applicant shall submit a good faith estimate of the financial assurance for reclamation, based on the state's financial assurance guidelines. The director of public works shall be responsible for verifying the estimate so as to guarantee reclamation. If the mine operation is phased and a program is provided by the operator, financial assurances can be based on each specific phase. Such financial assurances shall be made payable to the county and the department of conservation. (Ord. No. 3083, § 21 8-10-93) ti] 13-107 Public hearing. The planning division shall, upon completion of the review process, schedule the project for public hearing before the planning commission in the same manner as provided for in section 24-45.25 of chapter 24 of this Code. The planning commission, on the basis of evidence submitted at the hearing, may approve, conditionally approve, or deny the reclamation plan, financial assurances, mining permit and/or use permit. The determination of the planning commission shall be final unless a written appeal is filed in the same manner as provided for in section 24-45.30 of chapter 24 of this Code. (Ord. No. 3083, § 2, 8-10-93) 13-108 Lapse of permit Upon approval of the mining permit, the operator shall commence surface mining operations within five (5) years from the date of issuance of the permit. Should operations not commence within said five (5) years the permit shall expire and become void, unless extended by the planning commission prior to expiration. (Ord. No. 3083, § 2, 8-10-93) 13-109 Idle mineslinterim management plans. (a) Within ninety (90) days of a surface mining operation becoming idle, as defined in section 13-102 and section 2770(h) of the Public Resources Code, the operator shall submit to the planning division for review and approval an interim management plan. The interim management plan shall be considered an amendment to the approved reclamation plan and shall include measures the operator will implement to maintain the site in compliance with all permit conditions of the approved reclamation plan, mining and/or use permit. (b) The interim management plan may remain in effect for a period not to exceed five (5) years, at which time the county shall do one of the following: (1) Renew the interim management plan for an additional period not to exceed five (5) years. (2) Require the operator to commence reclamation in accordance with the approved reclamation plan. 10 (c) The financial assurance required by section 13-106 shall remain in effect during the period the surface mining operation is idle. (d) The planning division shall review and approve the interim management plan in accordance with section 2770(h) of the Public Resources Code. (e) The public works department shall periodically inspect each idle mine to assure compliance with the approved interim management plan. (Ord. No. 3083, § 2, 8-10-93) 13-110 Vested rights. No person who has obtained a vested right to conduct surface mining operations prior to January 1, 1976, shall be required to secure a permit pursuant to this article and the Act as long as the vested right continues and as long as no substantial changes are made in the operation except in accordance with this article. A person shall be deemed to have vested rights if, prior to January 1, 1976, he or she has, in good faith and in reliance upon a permit or other authorization, if the permit or other authorization was required, diligently commenced surface mining operations and incurred substantial liabilities for work and materials necessary therefor. Expenses incurred in obtaining the enactment ,01114N of an ordinance in relation to a particular operation or the issuance of a permit shall not be deemed liabilities for work or materials. The reclamation plan required to be filed under subdivision (b) of section 2770 of the Public Resources Code, shall apply to operations conducted after January 1, 1976, or to be conducted. Nothing in this article shall be construed as requiring the filing of a reclamation plan for, or the reclamation of, mined lands on which surface mining operations were conducted prior to January 1, 1976. (Ord. No. 3083, § 21 8-10-93) 13-111 Public records. Reclamation plans, reports, applications, and other documents submitted pursuant to this article are public records, unless it can be demonstrated to the satisfaction of the county that the release of such information, or part thereof, would reveal production, reserves or rate of depletion entitled to protection as proprietary information. The applicant shall have the right to identify what, in his opinion, is proprietary information. The county shall identify proprietary information as a separate part of each application. A copy of all permit, reclamation plans, reports, applications and other documents submitted pursuant to this article, including proprietary information, shall be furnished to the director /0%\ of department of conservation by the County of Butte. Proprietary information 11 shall be made available to persons other than the director of department of conservation only when authorized by the mine operator and by the mine owner in accordance with section 2778 of the Public Resources Code. (Ord. No. 3083, § 2, 8-10-93) 13-112 Annual inspectionlreports. (a) The public works department, development services department, and such technical specialists -as they may deem necessary, shall conduct annual inspections in accordance with section 2774(b) of the Public Resources Code, for each mining operation to determine whether the surface mining operation is in compliance with the spirit and intent of this article and the Act, and the provisions thereof. Such inspection shall be conducted using a form provided by the director of department of conservation for that purpose, and shall be conducted no later than six (6) months after receiving the surface mining operation's annual report submitted pursuant to section 2207 of the Public Resources Code and section 13-112(b). This section does not preclude the county from requiring additional inspections for the purpose of ensuring appropriate environmental protection. (b) In compliance with section 2207 of the Public Resources Code, the owner, manager, or other person in charge of any surface mining operation shall forward an annual report to the director of department of conservation not later than an anniversary date established for that operation by the director of department of conservation upon forms furnished by the state board of mines and geology. Such annual report shall be in accord with instructions included with the forms. The designated copy shall be submitted to the planning division and public works department on or before the aforesaid anniversary date. (c) The cost of the annual inspection dictated by section 13-112(a), above, shall be borne by the operator. The county shall establish and annually review a fee recovery program to cover the reasonable costs incurred in implementing this article. (Ord. No. 3083, § 2, 8-10-93) 13-113 Amendments. Amendments to an approved reclamation plan may be submitted to the planning commission any time, detailing proposed changes from the original plan. Substantial deviations from the original plan shall not be undertaken until such amendment has been filed with and approved by the planning commission. The planning commission shall set a public hearing regarding such amendments in the same manner as is provided for in section 13-107. (Ord. No. 3083, § 2, 8-10- 93) 12 /0"41 13-114 Transferability. Permits, reclamation plans and financial assurances issued under the provisions of this article are transferable, and the successor shall be bound by the provisions of the approved reclamation plan or permit and the provisions of this article. (Ord. No. 3083, § 2, 8-10-93) 13-115 Minor plan modifications. Minor plan modifications from an approved reclamation plan may be allowed upon request of the operator or applicant, and upon a finding by the director of development services that each requested minor plan modification is necessary to achieve the prescribed or higher post -mining use of the reclaimed land. (Ord. No. 3083, § 2, 8-10-93) 13-116 Enforcement. (a) Violation --Public nuisance. Any violation of this article is unlawful and a public nuisance and shall be abated, eliminated and enjoined as provided by the Butte County Code or state law. (b) Violation --Noncompliance. (1) If the public works director should determine that an operator is not in compliance with the provisions of this article, the county, in conformance with section 2774.1(a) of the Public Resources Code, shall notify the operator of that violation by personal service or certified mail. If the violation extends beyond thirty (30) days after the date of the county's notification, the public works director shall issue an order by personal service or certified mail requiring the operator to comply with this article. (2) An order issued under section 13-116(b)(1) above shall not take effect until the operator has been provided a hearing before the planning commission concerning the alleged violation. Any order issued under the section cited above shall specify which aspect of the surface mine's activities or operations are inconsistent with this article and shall specify a time for compliance, and shall set a date for the hearing, which shall not be sooner than thirty (30) days after the date of the order. (3) Any operator who violates or fails to comply with an order issued under section 13-116(b)(1) above after the order's effective date shall be subject to an order by the county imposing an administrative penalty of not more than five thousand dollars ($5,000.00) per day, assessed from the original /00*� date of noncompliance with this article. 13 (4) Any operator who fails to submit a report to the director of department of conservation and public works department and planning division under section 13-112 and section 2207 of the Public Resources Code shall be subject to an order by the county imposing an administrative penalty of not more than five thousand dollars ($5,000.00) per day, assessed from the original date of noncompliance with this article and/or section 2207 of the Public Resources Code. (5) In determining the amount of the administrative penalties for subsections (3) and (4) above, the county shall take into consideration the nature, circumstances, extent, and gravity of the violation or violations, any prior history of violations, the degree of culpability, economic savings, if any, resulting from the violation, and any other matters justice may require. (6) Any operator aggrieved by an act or determination by the planning division, public works department or planning commission in the exercise of the authority granted herein shall have the right to appeal to the board of supervisors. Appeal procedures shall be in accordance with section 2774.2 of the Public Resources Code. (7) The director of department of conservation shall notify the planning division of any known apparent violations or noncompliance with the Act in writing, and subject to the limitations in section 2774.1 of the Public Resources Code, the county shall have sole jurisdiction and responsibility of administering this article and the Act. (8) Remedies under this section are in addition to, and do not supersede or limit, any and all other remedies, civil or criminal, including, but not limited to, use permit, mining permit and/or reclamation plan revocation proceedings. (Ord. No. 3083, § 2, 8-10-93) 14 Ordinance No. AN ORDINANCE REPEALING AND RE-ENACTING ARTICLE H OF CHAPTER 13, OF THE BUTTE COUNTY CODE REGARDING SURFACE MINING AND RECLAMATION AND AMENDING SECTION 2445.25 OF CHAPTER 24 OF THE BUTTE COUNTY CODE The Board of Supervisors of the County of Butte ordains as follows: Section 1. Article II, entitled "Surface Mining and Reclamation," of Chapter 13, entitled "Grading and Mining," of the Butte County Code, is hereby repealed. Section 2. Article II is added to Chapter 13 of the Butte County Code to read as follows: "Article H. Surface Mining and Reclamation. Section 13-101. Purpose and Intent. (a) The purpose of this Article is to comply with and implement the provisions of the California Surface Mining and Reclamation Act of 1975 as amended (the "Act", Public Resources Code Section 2710 et seq.), Public Resources Code ("PRC") Section 2207 (relating to annual reporting requirements), and State Mining and Geology Board regulations for surface mining and reclamation- practice (California Code of Regulations, Title 14, Division 2, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq.) and Article 9 (Section 3700 et seq.)., hereinafter referred to as "State regulations"). Nothing in this Article is intended to modify or abridge the provisions of that Act. This Article shall be interpreted in a manner consistent with that Act. The provisions of this Article shall be liberally construed to effectuate the purposes of it and of the Act, and they shall be applied in a manner that ensures their constitutionality. (b) The Board of Supervisors finds that surface mining takes place in diverse areas where the geologic, topographic, climatic, biological, and social conditions are significantly different and that reclamation operations and the specifications therefor may vary accordingly. (c) The Board of Supervisors further finds that the extraction of minerals is essential to the continued economic well-being of the county and to the needs of society, and that reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety. (d) It is the purpose and intent of the Board of Supervisors to create and maintain an effective and comprehensive surface mining and reclamation policy with regulation of surface mining operations so as to assure that: (1) Adverse environmental effects are prevented or minimized and mined lands are reclaimed to a usable condition that is readily adaptable for alternative land use; (2) The production and conservation of minerals are encouraged, while giving ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -1- 15 consideration to values relating to recreation, watershed, wildlife, range, and forage and aesthetic enjoyment; (3) Residual hazards to the public health and safety are eliminated; (4) The reclamation of mined lands as provided in this Article will permit the continued mining of minerals and will provide for the protection and subsequent beneficial use of the mined and reclaimed land. (e) This Article shall be reviewed annually and revised, as necessary, in order to ensure that it is in accordance with the State policy for mined lands reclamation and to encourage the mining industry of Butte County. Sec. 13-102. Incorporation by Reference The provisions of the Surface Mining and Reclamation Act (SMARA), Public Resources Code Section 2710, et seq., Public Resources Code Section 2207, and State regulations 14 CCR, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq.) and Article 9 (Section 3700 et seq.), as those provisions and regulations may be amended from time to time, are made a part of this Article by reference with the same force and effect as if the provisions therein were specifically and fully set out herein, excepting that when the provisions of this Article are more restrictive than correlative State provisions, this Article shall prevail. Sec. 13-103. Definitions. For the purposes of this Article, the following words and phrases shall have the meanings respectively ascribed to them by this section: "Area of regional significance" means an area or location designated by the State Mining and Geology Board pursuant to PRC Section 2790 which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in a particular region of the State within which the minerals are located and which, if prematurely developed for alternate incompatible land uses, could result in the premature loss of minerals that are of more than local significance. "Area of statewide significance" means an area designated by the State Mining and Geology Board pursuant to PRC Section 2790 which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in the state and which, if prematurely developed for alternate incompatible land uses, could result in the permanent loss of minerals that are of more than local or regional significance. "Borrow pits" means excavations created by the surface mining of rock, unconsolidated geologic deposits or soil to provide material (borrow) for fill elsewhere. "Committee" means the five -member Surface Mining Aggregate Operations Committee created by Resolution 84-197 as subsequently amended by Resolution 99-101 or future resolutions. The Committee's purpose is to advise the Board of Supervisors on all matters ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -2- 16 140� pertaining to surface mining including, but not limited to, mining permit and reclamation plan applications, financial assurances, and mining operation compliance with this Article and the Surface Mining and Reclamation Act. "Exploration" or "prospecting" means the search for minerals by geological, geophysical, geochemical or other techniques, including, but not limited to, sampling, assaying, drilling, or any surface or underground works needed to determine the type, extent or quality of the minerals present. "Financial assurance" means the financial guarantee provided by the operator to assure the reclamation of all mined lands in the event of default by the operator. Financial assurances are limited to the following forms per Section 2773.1 of the Public Resources Code: (1) Surety Bonds; (2) Irrevocable letters of credit; (3) Trust funds; and (4) Other forms of financial assurances specified by the State Board pursuant to Section 2773.1(e). "Idle" means to curtail for a period of one year or more surface mining operations by more than 90 percent of the operation's previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date. "Incompatible land uses" means land uses inherently incompatible with mining and/or that require public or private investment in structures, land improvements, and landscaping and that may prevent mining because of the greater economic value of the land and its improvements. Examples of such uses may include, but shall not be limited to, high density residential, low density residential with high unit value, public facilities, geographically limited but impact intensive industrial and commercial uses. "Mined lands" includes the surface, subsurface and ground water of an area in which surface mining operations will be, are being, or have been conducted, including private ways and roads appurtenant to any such area, land excavations, workings, mining waste, and areas in which structures, facilities, equipment, machines, tools, or other materials or property which result from, or are used in, surface mining operations, are located. "Minerals" means any naturally occurring chemical element or compound, or groups of elements and compounds, formed from inorganic processes and organic substances, including, but not limited to, sand, gravel, aggregate, soil, landscape rock, coal, peat and bituminous rock, but excluding geothermal resources, natural gas and petroleum. "Mining waste" includes the residual of soil, rock, mineral, liquid, vegetation, equipment, machines, tools or other materials or property directly resulting from, or displaced by, surface mining operations. ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -3- 17 ka "Minor modification" means a change to a mining permit and/or reclamation plan that does not result in a substantial change, as defined in this section, in the mining permit, or a substantial deviation from the approved reclamation plan as defined by 14 CCR 3502(d) and which: (1) Does not expand the area or depth of the project by more than ten percent of the existing area or depth or the area or depth permitted by the permit and/or reclamation plan, whichever is larger; (2) Does not result in a substantial change to the mining permit, as defined in this section, in activities or new activities not previously assessed; (3) Does not result in a substantial deviation, as defined in this section, of the termination date of the mining operation as specified in the approved reclamation plan; and (4) Does not result in changes that would substantially change, as defined in this section, the approved end use of the site as established in the reclamation plan. "Operator" means any person who is engaged in surface mining operations, himself or herself or who contracts with others to conduct operations on his or her behalf except a person who is engaged in surface mining operations as an employee with wages as his or her sole compensation. "Overburden" means soil, rock or other materials that lie above a natural mineral deposit or in between deposits, before or after their removal by surface mining operations. "Mining permit" means any authorization from, or approval by, the county under this Article, the absence of which would preclude surface mining operations. "Person" means any individual, firm, association, corporation, organization or partnership, or any city, county, district, or the state or any department or agency thereof. "Reclamation" means the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion and other adverse effects from surface mining operations, including adverse surface effects incidental to underground mines, so that mined lands are reclaimed to a usable condition which is readily adaptable for alternate land uses and create no danger to public health or safety. The process may extend to affected lands surrounding mined lands, and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization or other measures. "Reclamation plan" means the plan required by the Act, as amended, and meeting all the requirements of Sections 2772 and 2773 of the Public Resources Code, state administrative guidelines and regulations adopted pursuant thereto, including, but not limited to, State regulations14 CCR 3500-3505 and 3700-3713, and ordinances and resolutions of the county adopted in accordance therewith. "Special -status species and plant communities" are those plant and animal species and plant communities that are legally protected under the Endangered Species Act of 1973, as ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -4- 18 amended (ESA) (16 U.S.C. Section 1531 et seq.), California Endangered Species Act (CESA) (Cal. Fish & Game Code Section 2050 et seq.), and are typically the focus of avoidance, minimization, and mitigation requirements under the California Environmental Quality Act (CEQA). "State Board" means the State Mining and Geology Board, in the Department of Conservation, State of California. "State Geologist" means the individual holding office as structured in Section 677 of Article 3, Chapter 2 of Division 1 of the Public Resources Code. "Stream bed skimming" means excavation of sand and gravel from streambed deposits above the mean summer water level or stream bottom, whichever is higher. "Substantial change" shall mean a change in a mining operation that (1) is not a minor modification as defined in this section; or (2) results in operations causing new significant environmental effects or a substantial increase in the severity of previously identified significant effects which were not considered in the environmental review conducted pursuant to the California Environmental Quality Act; or (3) is not in compliance with the terms or conditions of the applicable mining permit and use permit, if required, including but not limited to terms or conditions relating to area of disturbance, depth, rate of extraction, hours and days of operation, removal of vegetation, removal of overburden, dust, noise and vibration control, salvaging of top soil and vegetation, and setbacks from property lines, roads, water channels and other features. "Substantial deviation" shall mean a substantial deviation from a reclamation plan, as defined in 14 CCR 3502(d). "Surface mining operations" means all, or any part of, the process involved in the mining of minerals on mined lands by removing overburden and mining directly from the mineral deposits, open -pit mining of minerals naturally exposed, mining by the auger method, dredging and quarrying, borrow pitting, stream bed skimming, and segregation or stock -piling of mined materials (and recovery of the same), or surface work incident to an underground mine. Surface mining operations shall include, but are not limited to: (1) In-place distillation, retorting or leaching; (2) The production and disposal of mining waste; (3) Prospecting and exploratory activities. Sec. 13-104. Scope. (a) The provisions of this Article shall apply to the unincorporated areas of Butte County. (b) The provisions of this Article are not applicable to: (1) Excavations or grading conducted for farming or the immediate excavation or grading of lands affected by a flood or natural disaster for the purpose of restoring those lands to their ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -5- 19 W prior condition; (2) Onsite excavation and onsite earthmoving activities that are an integral and necessary part of a construction project and that are undertaken to prepare a site for construction of structures, landscaping, or other land improvements associated with those structures, including the related excavation, grading, compaction, or the creation of fills, road cuts, and embankments, whether or not surplus materials are exported from the site, subject to all of the following conditions: a. All required permits for the construction, landscaping, or related land improvements have been approved by a public agency in accordance with applicable provisions of state law and locally adopted plans and ordinances, including, but not limited to, Division 13 (commencing with Section 21000); b. The county's approval of the construction project included consideration of the onsite excavation and onsite earthmoving activities pursuant to Division 13 (commencing with Section 21000); c. The approved construction project is consistent with the general plan and zoning of the site; and d. Surplus materials shall not be exported from the site unless and until actual construction work has commenced and shall cease if it is determined that construction activities have terminated, have been indefinitely suspended, or are no longer being actively pursued. (3) Operation of a plant site used to process mineral materials provided that: a. the plant and associated stockpiles, equipment and structures are on property designated for industrial or commercial uses by the Butte County General Plan and Zoning e0ft,) Ordinance; b. there is no onsite extraction of minerals; and c. any onsite areas disturbed by mining activities after January 1, 1976, have been fully reclaimed pursuant to an approved Reclamation Plan; (4) Prospecting for, or the extraction of, minerals for commercial purposes where the removal of overburden or mineral product totals less than one thousand (1,000) cubic yards in any one location or on any one parcel of real property, and the total surface area disturbed is less than one acre; (5) Surface mining operations that are required by federal law in order to protect a mining claim, if such operations are conducted solely for that purpose; (6) Such other surface mining operations that the county determines to be of an infrequent nature, and which involve only minor surface disturbances and are categorically identified by the State Mining and Geology Board pursuant to Sections 2714(f) and 2758(c) of the Public Resources Code; (7) Emergency excavations or grading conducted by the Department of Water Resources or the Central Valley Flood Protection Board for the purpose of averting, alleviating, repairing, or restoring damage to property due to imminent or recent floods, disasters, or other emergencies; (8) Excavations or grading for the exclusive purpose of obtaining materials for roadbed construction and maintenance conducted in connection with timber operations and forest management on land owned by the same entity, provided such activities are conducted in compliance with the provisions and restrictions set forth in Public Resources Code Section 2714 ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -6- 20 U); (9) Excavations, grading, or other earthmoving activities in an oil or gas field that are integral to, and necessary for, ongoing operations for the extraction of oil or gas that comply with the provisions and restrictions set forth in Public Resources Code Section 2714 (k); (10) Reclamation of lands mined prior to, but not after, January 1, 1976; (11) Surface mining operations conducted pursuant to vested rights obtained prior to January 1, 1976, except as otherwise provided in Section 13-113. (c) Where an activity is granted an exception to surface mining and reclamation regulations, it may still be subject to other federal, state or local regulations, and permit and review requirements. Sec. 13-105. Permit and Reclamation Plan Application Requirements. (a) Application. Except as provided in Section 2776, Public Resources Code, and Sections 13-104 and 13-113 of this Article, no person shall conduct surface mining operations unless a mining permit, reclamation plan, and financial assurance have first been approved by the county pursuant to this Article and, if required by the applicable zoning regulations, a use permit for mining has been approved pursuant to Chapter 24 of this Code. Any person who proposes to engage in surface mining operations as defined in this Article shall submit an application for a mining permit, reclamation plan, and a use permit (if the zone requires) to the county Department of Development Services, Planning Division. The application shall be on a form approved by the Director of Development Services and furnished by the county and shall be full -and complete, containing all information required by the Act and this Article, as well as a detailed project report, a reclamation plan pursuant to Section 13-108 of this Article, an estimate of financial assurance, as required by Section 13-109 of this Article, and any additional information required by the Planning Division to facilitate an expeditious and fair evaluation of the proposed operations, including but not limited to the following: (1) A description of the proposed project's regional environmental setting; (2) A biological resources assessment of the parcels containing the proposed maximum area of disturbance, to be conducted by a qualified biologist, describing existing plant communities, wildlife, and the occurrence of, or the potential for occurrence of, special -status plant and wildlife species and plant communities subject to consideration under the California Environmental Quality Act and their relationship to the regional environmental setting; (3) The proposed type and maximum quantity of material to be extracted; (4) The proposed dates for the initiation and termination of mining operations; (5) The maximum proposed rate of extraction; (6) The proposed method of extraction; (7) The maximum rate of export of material from the site; (8) The type of material to be exported; (9) The type of processing that will occur on- and off-site; (10) Assurances that all off-site processing will be accomplished in compliance with all applicable laws and regulations; (11) The proposed hours and days of operation on-site; (12) The maximum noise level of the mining operations at the property boundaries of the ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -7- 21 site; (13) Proposed and existing sources for water and, if necessary, the method of conveyance to the site; (14) An estimate of the maximum and average quantities of water to be used in gallons per minute and acre-feet per year, and the sources for said maximum and average quantities of water; (15) An estimate of the maximum and average amounts and types of wastewater disposed of in gallons per minute and acre-feet per year, including excess processing water, mine drainage, and storm runoff from disturbed or utilized areas; (16) Proposed end-use of the site after reclamation; (17) A plot plan drawn to scale by a California registered Professional Engineer and/or similarly licensed and qualified professional and showing all the following information: a. proposed maximum area of disturbance; b. proposed maximum depth of disturbance; c. setbacks; d. interim and final grade slopes; e. location and type of all proposed mining and mining related activities, stockpile areas, on-site processing areas; f. locations of all water bodies, wetlands, riparian habitat areas, oak woodlands, vegetation communities and watercourses, including ephemeral streams, which are on-site or which will be affected; g. locations of proposed and existing wells, if any; and h. locations of proposed points of extraction of surface water from water bodies and/or streams; (18) A vicinity map drawn to scale showing the topography and the locations of parcels, buildings, residences, wells, water bodies, watercourses, including ephemeral streams, within 1,000 feet of the proposed maximum area of disturbance; and (19) A complete reclamation plan pursuant to Section 13-108 of the Article, including pre, phased (if any) and post -reclamation plot plans. (b) Filing Fee: Each application shall be accompanied by a filing fee in the amount set forth in Section 343 of this Code, as amended, at the time of application submittal. Sec. 13-106. Application Review Procedure. Within thirty (30) days of accepting the application as complete, the Planning Division shall distribute copies of the mining permit application, reclamation plan, and financial assurance cost estimate and/or provide notice, as required, to the Butte County Public Works Department, the Butte County Environmental Health Division, the Butte County Water Commission, the Committee and other responsible agencies, including but not limited to, the Department of Conservation, the United States Army Corps of Engineers, the California Department of Fish and Game, the California Department of Water Resources and the Central Valley Division of the Regional Water Quality Control Board. Whenever mining operations are proposed in the 100 - year flood plain for any stream and within one mile, upstream or downstream, of any state highway bridge, the Planning Division shall, pursuant to Public Resources Code Section 2770.5, ■ Butte County Department of Development Services ■ (400111), ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -8- 22 notify the State Department of Transportation, that the application has been received. Within sixty (60) days of the distribution of the permit application, reclamation plan, and financial assurance cost estimate the Committee shall meet to review them and make recommendations to staff. The Planning Division shall be responsible for developing an agenda and setting the time and place for the Committee meeting. Application review by the Planning Division shall not be delayed by an inability to schedule a meeting with the Committee. Sec. 13-107. Initial Study. Unless it is immediately determined that an Environmental Impact Report is required, the Planning Division will be responsible for conducting the Initial Study to determine the project's status in respect to the California Environmental Quality Act, Public Resources Code Section 21000 et seq. The environmental review shall be conducted consistent with the adopted Butte County Environmental Review Guidelines. See. 13-108. Standards for Reclamation and Implementation. (a) All Reclamation plans shall comply with the provisions of Public Resources Code sections 2772 and 2773 and State regulations 14 CCR, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq.), and shall include a statement that the person submitting the plan accepts responsibility for reclaiming the mined lands in accordance with the reclamation plan. Reclamation plans approved after January 15, 1993, reclamation plans for proposed new mining operations, or any proposed amendments to previously approved reclamation plans determined to be a substantial deviation pursuant to State regulation 14 CCR Section 3502(d), or where an amended reclamation plan is required pursuant to State regulation 14 CCR Section 3502(e), shall also comply with the State regulation requirements for reclamation performance standards (14 CCR Sections 3700-3713). (b) The reclamation plan shall be applicable to a specific piece of property or properties, shall be based upon the character of the surrounding area and such characteristics of the property as type of overburden, soil stability, topography, geology, climate, stream characteristics, groundwater, and principal mineral commodities, and shall establish site-specific criteria for evaluating compliance with the approved reclamation plan, including topography, revegetation and sediment, and erosion control. The county may impose additional performance standards as developed in the review of individual projects, as warranted, or through the formulation and adoption of countywide performance standards. The reclamation plan shall include: (1) The name and address of the surface mining operator and the names and addresses of any persons designated by the operator as an agent for the service of process; (2) The anticipated quantity and type of minerals for which the surface mining operation is to be conducted; (3) A description of, and a plan for, the type of surface mining to be employed; (4) The proposed dates for the initiation and termination of the surface mining operation; (5) The maximum anticipated depth of the surface mining operation; (6) The size and legal description of the site that will be affected by the surface mining operation; ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -9- 23 (7) The names and addresses of all owners of surface interests and mineral interests in the lands that will be affected by the surface mining operation; (8) A description of the general geology of the area and a detailed description of the geology of the area in which surface mining is to be conducted; (9) A description of the nature and sequence of reclamation activities including, but not limited to, such items as landscaping, erosion control, seeding, fill of low pit areas, shaping of pit floors, management of mined and unminable deposits, original, interim and final rough slopes and grades; (10) An anticipated time schedule that will provide for the completion of surface mining on each segment of the mined lands so that reclamation can be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance by the surface mining operation; (11) A description of the disposition of overburden following its removal, whether sold, disposed of off-site, or stored on-site. If on-site storage is proposed, the anticipated location, aerial extent and average depth of the stored overburden shall be identified on the reclamation plot plan; (12) A description of the source for and nature of all fill, if any, required for reclamation, and verification that all such fill complies with all applicable Regional Water Quality Control Board and California Integrated Waste Management Board regulations pertaining to fill material; (13) A description of the manner in which reclamation, adequate for the proposed or potential use(s), will be accomplished, including: a. the manner in which contaminants will be controlled, and mining waste disposed; and b. the manner in which affected streambed channels and streambanks will be rehabilitated to a condition minimizing erosion and sedimentation; (14) An assessment of the effect that implementation of the reclamation plan will have upon the site's remaining unmined resources and future mining in the area; (1 S) A description of the proposed or potential use(s) of the mined lands after reclamation and evidence that all owners of possessory interest in the land have been notified of the proposed or potential use(s); (16) A discussion of the public health and safety in regards to potential public access to the site in its final condition; (17) Criteria for measuring the successful completion of specific reclamation activities; (18) A pre -mining operation plot plan, drawn to scale by a California registered Professional Engineer and/or similarly licensed and qualified professional, showing the boundaries and topographic details of the site, the location of all streams, roads, railroads, and utility facilities within, or adjacent to, the lands, the location of all proposed access roads to be constructed in conducting the surface mining operation; (19) Plot plans for each reclamation phase, if any, drawn to scale by a California registered Professional Engineer and/or similarly licensed and qualified professional; and (20) A post -reclamation plot plan drawn to scale by a California registered Professional Engineer and/or similarly licensed and qualified professional, showing the ultimate physical condition of the site, including, but not limited to, the following information: a. boundaries of areas to be reclaimed, including acreage; b. post -reclamation drainage, including direction of flows, erosion and sediment control ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ _10- 24 structures or treatment such as water bars, berms, siltation ponds, and diversions; c. revegetation plan including the names of plant species, size, area and spacing of plants; d. reclaimed ground surface elevation contours, at an appropriate vertical scale; e. all surface openings closed through reclamation; f. buildings, structures, and equipment to be either dismantled and removed from the site or to remain on site and be consistent with the end use; and g. post -mining safety features (e.g. fences, gates, signs). (c) Reclamation activities shall be initiated at the earliest feasible time on those portions of the mined lands that will not be subject to further disturbance. Interim reclamation may also be required for mined lands that have been disturbed and that may be disturbed again in future operations. Sec. 13-109. Financial Assurance. (a) The Board of Supervisors, when taking action pursuant to Section 13-110, and the Director of Development Services, when approving annual adjustments in the financial assurances amount pursuant to this subsection (e) of this section, shall require financial assurances as necessary to conform to the provisions of this Article and with Section 2773.1 of the Public Resources Code. (b) The mine operator or applicant shall submit a good faith calculation estimating the Financial Assurance amount for reclamation, based on the requirements of Public Resources Code Section 2773.1, the state's Financial Assurance Guidelines, and State regulations 14 CCR Section 3804. Such estimates shall be prepared by a California registered Professional Engineer and/or other similarly licensed or qualified professionals retained by the operator and approved by the Director of Development Services. The estimated amount of the financial assurance shall be based on an analysis of the physical activities necessary to implement the approved reclamation plan including, but not limited to, the costs to a commercial operator other than the permittee of labor, equipment, mobilization of equipment, materials, any maintenance and/or monitoring of reclaimed areas as may be required, the reasonable profit and costs for administration by a commercial operator other than the permittee, and the administrative costs of the state or county to oversee implementation of the reclamation plan. If the mine operation is phased and the operator provides a phasing program, financial assurances can be based on each specific phase. (c) In projecting the costs of financial assurances, it shall be assumed without prejudice or insinuation that the surface mining operation could be abandoned by the operator and, consequently, the county or State Department of Conservation may need to contract with a third party commercial company for reclamation of the site. (d) The financial assurances shall remain in effect for the duration of the surface mining operation and any additional period until reclamation is completed (including any maintenance and/or monitoring required). (e) The amount of financial assurances required of a surface mining operation for any one year shall be adjusted annually prior to the anniversary date for approval of the financial assurances. The mine operator shall annually submit to the Planning Division a revision of the calculation estimating the financial assurance so that it may be determined what adjustment, if ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -11- 25 any, should be made by the Director of Development Services in the amount of the financial assurance. The annual financial assurance cost estimate shall account for the cost of reclamation of existing lands disturbed by and accessory to surface mining operations in accordance with the approved reclamation plan, and shall also account for inflation and anticipated activities during the upcoming year, excepting that the permittee may not claim credit for reclamation scheduled for completion during the coming year. (f) A county -employed, state licensed civil engineer and/or other similarly licensed or qualified professional shall be responsible for verifying financial assurance cost estimates so as to guarantee reclamation in accordance with the approved reclamation plan. (g) The Planning Division shall forward a copy of the annual financial assurance estimate to the State Department of Conservation for review. If the State Department of Conservation does not comment within forty-five (45) days of receipt of the estimate, it shall be assumed that the estimate is adequate, unless the county has reason to determine that additional costs may be incurred. (h) Financial assurances shall be made payable to the county and the Department of Conservation. Sec. 13-110. Public Hearing. (a) The Planning Division shall, upon completion of the review process pursuant to Sections 13-106 and 13-107, schedule the permit application, including the proposed reclamation plan and financial assurances, referred to hereinafter collectively as the "Application," for public hearing before the Planning Commission in the same manner as provided for in Section 24-45.25 of Chapter 24 of this Code, and shall prepare a staff report with recommendations for consideration by the Planning Commission. (b) The Planning Commission shall hold at least one noticed public hearing, or as many public hearings as required, to evaluate the Application and shall take formal action to recommend that the Application be approved, conditionally approved or denied by the Board of Supervisors. Upon the Planning Commission's recommendation, the Planning Division shall schedule a noticed public hearing before the Board of Supervisors pursuant to Section 24-45.25 of this Code. (c) Prior to the Board of Supervisor's final approval of a reclamation plan, financial assurances (as provided in Section 13-109 of this Code) or any amendments to the existing financial assurances or the reclamation plan that constitute substantial deviations from the existing reclamation plan (under Section 13-117 of this Code), the Board of Supervisors shall certify to the State Department of Conservation that the reclamation plan, financial assurances and/or amendment complies with the applicable requirements of State law. Certification pursuant to this subsection is not approval of the Application. The Planning Division shall submit the reclamation plan, financial assurances and/or amendments, and any related document prepared, adopted or certified pursuant to the California Environmental Quality Act, to the State Department of Conservation for review pursuant to PRC Section 2774(d). All documentation for that submission shall be submitted to the Department of Conservation at one time. The director of the State Department of Conservation shall have thirty (30) days from the date of receipt of a reclamation plan or plan amendment and forty-five (45) days from the date of receipt of a ■ Butte County Department of Development Services ■ ■ Junel8, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -12- 26 financial assurance to prepare written comments, if the director so chooses. The county shall evaluate any written comments received from the director relating to the reclamation plan, plan amendments, or financial assurances within a reasonable amount of time. (d) The county shall prepare a written response to the director's comments describing the disposition of the major issues raised by the director's comments, and submit the county's proposed response to the director at least thirty (30) days prior to approval of the reclamation plan, plan amendment, or financial assurance. The county's response to the director's comments shall describe whether the county proposes to adopt the director's comments to the reclamation plan, plan amendment, or financial assurance. If the county does not propose to adopt the director's comments, the county shall specify, in detail, why it proposes not to adopt the comments. Copies of any written comments received and responses prepared by the county shall be forwarded to the operator. The county shall also give the director at least thirty (30) days' notice of the time, place, and date of the hearing before the lead agency at which time the reclamation plan, plan amendment, or financial assurance is scheduled to be approved. If applicable law requires no hearing, then the county shall provide thirty (30) days notice to the director that it intends to approve the reclamation plan, plan amendment, or financial assurance. The county shall send to the director its final written response to the director's comments within thirty (30) days following its approval of the reclamation plan, plan amendment, or financial assurance during which period the department retains all powers, duties, and authorities under the law. (e) The Board of Supervisors, on the basis of evidence submitted at the hearing, may approve, or conditionally approve, the reclamation plan, financial assurance, mining permit and, if required, use permit for mining, if, considering all conditions, modifications, and mitigations, it makes the following findings: (1) an environmental impact report or negative declaration that has been prepared, considered, and certified or approved in compliance with the California Environmental Quality Act; (2) all the information required by Section 13-105(a) and Section 13-108 of this Article has been submitted and considered; and (3) the mining operation, as approved, a. is consistent with the county general plan, b. complies with the criteria specified in Section 24-45.10 of Chapter 24 of this Code; and c. complies with the requirements of this Article, SMARA (PRC Section 2710 et seq), and State regulations 14 CCR Sections 3500 and 3700 et seq. If any of said findings (1) through (3) cannot be made, the Board of Supervisors shall deny the application. The determination of the Board of Supervisors shall be final. (f) The Board of Supervisors shall forward a copy of each approved mining permit and/or use permit for mining, reclamation plan and financial assurance to the State Department of Conservation and shall record a Notice of Reclamation Plan Approval with the county recorder, pursuant to Public Resources Code Section 2772.7. Said notice shall read: Mining operations conducted on the hereinafter described real property are subject to a reclamation plan approved by the County of Butte, a copy of which is on file with the Planning Division of the Department of Development Services. f ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -13- 27 Sec. 13-111. Lapse of Permit/Commencement Status Reports. (a) Upon approval of the mining permit and the associated use permit for mining, if required, the operator shall commence surface mining operations within five (5) years from the date of issuance of the permit. Upon said approval the following shall also be required: (1) the owner, manager, or other person in charge of any surface mining operation, in compliance with Section 2207 of the Public Resources Code and Section 13-116(a) ofthis Article, shall, within the first year following approval and no later than July 1, commence forwarding annual reports to the Director of Department of Conservation and the Planning Division upon forms furnished by the State Board; (2) the county, in compliance with Section 2774(b) and Section 13-116, shall conduct an inspection of the mining operation within the first year following approval and no later than six (6) months after receiving the surface mining operation's annual report submitted pursuant to Section 2207 of the Public Resources Code and Section 13-116(a); (3) if the operator declares the mining operation to be newly permitted — not yet in operation in the annual production report submitted to the Department of Conservation and the county pursuant to Section 2207 of the Public Resources Code and Section 13-116(a) of this Article, the operator shall submit to the Director of Development Services a commencement status report with said annual production report stating whether or not operations have commenced pursuant to the mining permit and associated use permit for mining, if required and specifying all pertinent activities undertaken in preparation for the commencement of operations. When the operator declares the mining operation to be active for the first time in the annual production report, the mining operation shall be considered commenced and the nature and date of the commencement activities shall be specified in a final commencement status report, and no further commencement status reports shall be required. (b) Should operations not commence within five years from the date of issuance of the permit, the operator may request an extension. A request for an extension of the mining permit and use permit for mining, if required, shall be made to the Planning Division. The Planning Division shall schedule the extension request for public hearing before the Planning Commission in the same manner provided for in Section 13-110 of this article. (c) The Planning Commission shall hold at least one noticed public hearing on the extension request. The hearing shall be limited to a consideration of why active mining operations have not commenced within five years, and the Planning Commission shall take formal action to recommend to the Board of Supervisors that the extension request be approved, modified or denied. Upon the Planning Commission's recommendation, the Planning Division shall schedule a noticed public hearing before the Board of Supervisors pursuant to Section 24- 45.25 of this Code. (d) The Board of Supervisors, on the basis of the evidence submitted at the hearing, and shall limit its consideration as to why active mining operations have not commenced within five years, and shall approve, modify or deny the extension request. The determination of the Board of Supervisors shall be final. (e) Should operations not commence within said five (5) years, or within ten (10) years if a request for an extension pursuant to 13-111(b) has been approved, the Director of Development ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -14- 28 ka Services shall determine whether the mining permit and use permit for mining, if required, have lapsed. In making said determination, the Director shall consider evidence supplied by the operator pursuant to Section 13-111(a)(3) as to whether or not operations have commenced. (f) If the Director determines that a mining permit and use permit for mining, if required, have lapsed because operations have not commenced within said five (5) years, or within ten (10) years if a request for an extension pursuant to 13-111(b) has been approved, the operator shall be notified in writing accordingly. Any person aggrieved by a determination by the Director of Development Services that a mining permit and/or use permit for mining has lapsed shall have the right to appeal. The Planning Division shall schedule the appeal for public hearing before the Planning Commission in the same manner as provided in Section 13-110 of this Article. (g) The Planning Commission, on the basis of evidence submitted at the hearing, and upon findings made based upon such evidence, shall, pursuant to Section 13-110, recommend to the Board of Supervisors whether the mining permit and mining use permit, if required, have lapsed. The determination of the Board of Supervisors shall be final as provided in Section 13- 110 of this Article. Sec. 13-112. Idle Mines/Interim Management Plans. (a) Within 90 days of a surface mining operation becoming idle, as defined in Section 13- 103 and Section 2727.1 of the Public Resources Code, the operator shall submit a proposed interim management plan to the Planning Division for review and approval by the Director of Development Services. The review and approval of an interim management plan shall not be considered a project for purposes of the California Environmental Quality Act (Public Resources Code Section 2100 et seq.). The interim management plan shall be submitted on forms approved by the Planning Division and provided by the county. The approved interim management plan shall be considered an amendment to the mining operation's approved reclamation plan, shall comply with the requirements of Public Resources Code Section 2770(h), and shall include measures the operator will implement to maintain the site in a stable condition, taking into consideration public health and safety, and in compliance with this Article, all permit conditions of the approved reclamation plan, mining permit and/or mining use permit. (b) Upon receipt of a complete proposed interim management plan, the Planning Division shall forward the interim management plan to the Department of Conservation for review. The interim management plan shall be submitted to the Department of Conservation at least 30 days prior to approval by the Director of Development Services. (c) The Director of Development Services shall approve or deny approval of the interim management plan within 60 days of receipt of a complete plan or within a longer period mutually agreed upon by the Planning Division and the operator. If approval is denied, the operator shall have 30 days, or a longer period mutually agreed upon by the Planning Division and the operator, to submit a revised interim management plan. The Director of Development Services shall approve or deny approval of the revised interim management plan within 60 days of receipt. (d) Any person aggrieved by a denial of a revised interim management plan by the Director of Development Services shall have the right to appeal. The Planning Division shall schedule the appeal for public hearing before the Planning Commission in the same manner as ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -15- 29 provided in Section 13-110 of this Article. (e) The Planning Commission, on the basis of evidence submitted at the hearing, and upon findings made based upon such evidence, shall, pursuant to Section 13-110, recommend to the Board of Supervisors whether the interim management plan should be approved, modified or denied. The Planning Division shall schedule a public hearing for the Planning Commission's recommendation within 45 days before the Board of Supervisors, or any longer period mutually agreed upon by the operator and the Clerk of the Board of Supervisors. (f) The Development Services Department and such technical specialists as it may deem necessary, shall conduct inspections of each idle mine at least once each calendar year, in accordance with Section 2774(b) to assure compliance with the approved Interim Management Plan. (g) The interim management plan may remain in effect for a period not to exceed five (5) years, at which time the Planning Division shall do one of the following: (1) Renew the interim management plan for an additional period not to exceed five (5) years, if the county finds that the operator has complied fully with the interim management plan; (2) Require the operator to commence reclamation in accordance with the approved reclamation plan. (h) The financial assurance required by Section 13-109 shall remain in effect during the period the surface mining operation is idle. If the surface mining operation is still idle after the expiration of its interim management plan, the surface mining operation shall commence reclamation in accordance with its approved reclamation plan. (i) Unless review of an interim management plan is pending before the Director of Development Services, a surface mining operation which remains idle for over one year after becoming idle as defined in Section 13-103, without obtaining approval of an interim management plan, shall be considered abandoned and the Director of Development Services shall give notice of abandonment to the operator and the operator shall commence and complete reclamation in accordance with the approved Reclamation Plan. The Director of Development services may also consider whether to commence proceedings to revoke the permit pursuant to Section 121(b) of this Article. Sec. 13-113. Vested Rights. (a) No person who has obtained a vested right to conduct surface mining operations prior to January 1, 1976, shall be required to secure a permit pursuant to this Article and the Act as long as the vested right continues and as long as no substantial changes are made in the operation except in accordance with this Article. A person shall be deemed to have vested rights if, prior to January 1, 1976, he or she has, in good faith and in reliance upon a permit or other authorization, if the permit or other authorization was required, diligently commenced surface mining operations and incurred substantial liabilities for work and materials necessary for the surface mining operations. Expenses incurred in obtaining the enactment of an ordinance in relation to a particular operation or the issuance of a permit shall not be deemed liabilities for work or materials. ■ Butte County Department of Development Services ■ (0"l ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -16- 30 i''1 (b) A "vested right" is the right to conduct a legal nonconforming use of real property if that right existed lawfully before a zoning or other land use restrictions became effective and the use is not in conformity with that restriction when it continues thereafter. A vested mining right, in the surface mining context, may include but shall not be limited to: the area of mine operations, the depth of mine operations, the nature of mining activity, the nature of material extracted, and the quantity of material available for extraction. (c) Where a person with vested rights continues surface mining operations in the same area pursuant to such vested rights subsequent to January 1, 1976, a reclamation plan is required under subdivision (b) of Section 2770 of the Public Resources Code and Section 13-105 of this Article for those operations conducted after January 1, 1976, or to be conducted. Expansion of surface mining operations after January 1, 1976 may be recognized as a vested nonconforming use under the doctrine of "diminishing assets" as set forth in Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal. 4th 533. (d) Nothing in this Article shall be construed as requiring the filing of a reclamation plan for, or the reclamation of, mined lands on which surface mining operations were conducted and completed prior to January 1, 1976. Sec. 13-114. Determination of Vested Rights. (a) Any person who claims to have a vested right to conduct surface mining operations •y pursuant to Section 13-113 of this Article shall file a Claim of Vested Rights with the Department of Development Services, Planning Division. The burden of proving the existence and extent of the vested right shall be on the claimant. (b) Any person who has received a final determination from the county prior to the effective date of this section confirming a vested right to conduct surface mining operations pursuant to Section 13-113 of this Article shall not be required to file a Claim of Vested Rights provided the scope of said operation has not expanded beyond that for which there was objective evidence of an intent to mine at the time of said final determination. Evidence of a final determination may include, but is not limited to, approval of a Reclamation Plan for the surface mining operation or a conditional use permit for a use accessory to the surface mining operation. (c) The Claim of Vested Rights shall be on a form furnished by the county and shall be full and complete, containing all information required by the Planning Division to facilitate an evaluation of the claim, including, but not limited to: (1) Name, address, and telephone number of the following persons: a. The claimant, and of any agent for contact or service of notice, if different; b. The property owner(s), if different than the claimant; c. Any lessee, lien holder, or other potential claimant to the vested right(s) asserted; d. The owners of all properties adjacent to the property upon which vested rights are being claimed; and e. Any governmental agency or entity having jurisdiction over the property or the surface mining operations on the property that may be affected by a determination of vested rights. (2) A map depicting the exact location of the property and the area on the property upon which vested rights are claimed; (3) A legal description of such property; ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -17- 31 (4) Copies of all documents which the claimant asserts establish title to such property; (5) A written statement, accompanied by a declaration or affidavit attesting to its truth and accuracy, indicating the basis for and the scope or scale of the claim of vested rights, including a description or depiction of the full extent of the area intended to be mined. The claimant may submit with this statement any documentation manifesting that intent and supporting the claim, including, but not limited to: a. Evidence of the scope or scale of the mining operations previously conducted, including, but not limited to, aerial photographs; b. Proof of substantial liabilities necessarily incurred for work and materials to conduct surface mining operations of the scope or scale claimed; and c. Proof of compliance with all local land use or mining ordinances, regulations, permits, authorizations and entitlements, both existing and prior, that govern or have governed the conduct of surface mining operations upon such property. (d) The filing of a Claim of Vested Right shall be accompanied by a filing fee in the same amount as specified in Section 13-105 (b) of this Article. (e) Within thirty (30) days of accepting the Claim of Vested Right as complete, the Planning Division shall send copies of it to the Director of the Department of Conservation, the County Public Works Department, the Committee and other responsible agencies, and shall set a Committee meeting to be held within sixty (60) days of the distribution of the Claim. Whenever any of the claimed vested rights are in the 100 -year flood plain for any stream and within one mile, upstream or downstream, of any state highway bridge, the Planning Division shall, pursuant to Public Resources Code Section 2770.5, notify the State Department of Transportation, that the Claim has been received. (f) The Committee shall meet to evaluate the claim and to make a recommendation whether or not the claim should be honored. Review by the Planning Division shall not be delayed by an inability to schedule a meeting with the Committee. (g) Upon receiving an evaluation of the claim and a recommendation from the Committee, the Planning Division shall schedule the claim for public hearing before the Planning Commission in the same manner as provided in Section 13-110 of this Article. (h) The Planning Commission, on the basis of evidence submitted at the hearing, and upon findings made based upon such evidence, shall recommend to the Board of Supervisors whether and to what extent vested rights exist. (i) The determination of the Board of Supervisors shall be final as provided in Section 13-110 of this Article. 0) A final determination recognizing that vested rights exist shall constitute acknowledgment that the specific surface mining operation identified upon the specific property or properties does not require a permit pursuant to this Article and the Act as long as the vested right continues and as long as no substantial changes are made in the operation except in accordance with this Article. If any recognized vested rights are waived or abandoned, the surface mining operations identified shall become subject to the permit requirements of this Article and the Act. Sec. 13-115. Public Records. ■ Butte County Department of Development Services ■ (401 ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -18- 32 Reclamation plans, reports, financial assurances, financial assurance cost estimates, applications, and other documents submitted pursuant to this Article are public records, unless it can be demonstrated to the satisfaction of the County that the release of such information, or part thereon would reveal production, reserves or rate of depletion entitled to protection as proprietary information. The applicant shall identify what, in his opinion, is proprietary information at the time said information is submitted. The Planning Division shall maintain proprietary information as a separate part of each application and file. A copy of all permits, reclamation plans, financial assurances, financial assurance cost estimates, reports, applications and other documents submitted pursuant to this Article, including proprietary information, shall be furnished to the Director of Department of Conservation by the County of Butte. Proprietary information shall be made available to persons other than the Director of Department of Conservation only when authorized by the mine operator and by the mine owner in accordance with Section 2778 of the Public Resources Code. Sec. 13-116. Annual Reports/Inspections. (a) In compliance with Section 2207 of the Public Resources Code, the owner, manager, or other person in charge of any surface mining operation shall forward an annual report to the Director of Department of Conservation not later than July 1 upon forms furnished by the State Board. Such annual report shall be in accord with instructions included with the forms. The designated copy shall be submitted to the Planning Division on or before July 1. (b) The Development Services Department, and such technical specialists as it may deem necessary, shall conduct inspections at least once each calendar year, in accordance with section 2774(b) of the Public Resources Code, for each mining operation to determine whether the surface mining operation is in compliance with the mining permit, reclamation plan, and, if required, mining use permit, and with the spirit and intent of this Article and the Act, and the provisions thereof. Such inspection shall be conducted using a form provided by the Director of Department of Conservation for that purpose, and shall be conducted no later than six (6) months after receiving the surface mining operation's annual report submitted pursuant to Section 2207 of the Public Resources Code and Section 13-116(a). Pursuant to section 13-111(a)(3), the annual inspection report shall state if surface mining operations have or have not commenced. If surface mining operations have not commenced at the time of the annual inspection, the annual inspection report shall state in full all pertinent activities undertaken in preparation for the commencement of operations. This Section does not preclude the county from requiring additional inspections for the purpose of ensuring appropriate environmental protection. (c) The cost of the annual inspection required by Section 13-116(b), above, shall be borne by the operator. The county shall establish and annually review a fee recovery program to cover the reasonable costs incurred in implementing this Article. (d) If the Operator fails to file a report as required by this section, the Director of Development Services shall commence proceedings to revoke the mining permit and mining use permit, if any, in the same manner as specified in Section 24-45.65 of this Code. Sec. 13-117. Amendments. ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -19- 33 W An operator may propose amendments to an approved reclamation plan. Proposed amendments, including interim management plans as set forth in Section 112, shall be submitted to the Planning Division detailing proposed changes from the original plan. Amendments to approved reclamation plans that are determined by the Director of Development Services to be substantial deviations from the original plan, as defined in Section 13-103 above and State regulations 14 CCR Section 3502(d), and including any change in the prescribed post -mining use, shall not be undertaken until such amendment has been approved by the Board of Supervisors pursuant to the process set out in Section 13-110. The Planning Division shall review the proposed amendment in the same manner as specified in sections 13-106 and 13-107 and shall set a public hearing regarding such amendments in the same manner as is provided for in Section 13-110. Sec. 13-118. Transferability. Permits, reclamation plans and financial assurances issued under the provisions of this Article are transferable, and the successor shall be bound by the provisions of the approved reclamation plan or permit and the provisions of this Article. Any successor shall notify the Planning Division and the Department of Conservation of any change in ownership of property that has an associated mining permit, use permit for mining or reclamation plan. Sec. 13-119. Minor Modifications. (a) Minor modifications of an approved mining permit and/or reclamation plan may be allowed by the Director of Development Services upon request of the operator or applicant, and upon findings by the Director in Section 13-119(c) that each such modification meets the definition of "Minor Modification," as set forth in Section 13-103 above, and is consistent with accomplishing the original goals of the approved permit and reclamation plan and achieving the prescribed post -mining use of the reclaimed land. Minor modifications will be more favorably considered if they are for a limited time period and/or serve a public purpose. (b) Applications for a minor modification shall be made on a checklist form provided by and filed with the Planning Division. (c) Prior to approval of a minor modification, the Director shall make written findings that the minor modification: (1) meets the definition of "Minor Modification," as set forth in Section 13-103 above; (2) is consistent with accomplishing the original goals of the approved permit, reclamation plan and the prescribed post -mining use of the reclaimed land; and (3) is not subject to or is exempt from the California Environmental Quality Act. (d) The Director shall approve, conditionally approve, or disapprove an application for a minor modification within 45 days of accepting the application as complete, and give notice by mail of the decision, including any conditions of approval, to the applicant. (e) Any person aggrieved by a denial of a proposed minor modification by the Director of Development Services shall have the right to appeal. The Planning Division shall schedule the appeal for public hearing before the Planning Commission in the same manner as provided in Section 13-110 of this Article. ■ Butte County Department of Development Services ■ (4011 ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -20- 34 (fl The Planning Commission, on the basis of evidence submitted at the hearing, and upon findings made based upon such evidence, shall, pursuant to Section 13-110, recommend to the Board of Supervisors whether the minor modification shall be approved, modified or denied. The determination of the Board of Supervisors shall be final as provided in Section 13-110 of this Article. (g) Within 30 days of final action, the director shall send a copy of an approved minor modification to the Department of Conservation. Sec. 13-120. Completion of Reclamation and Mining. (a) Upon notification by the operator that reclamation has been completed and the mining operation is terminated for either the entire area permitted or for one or more phases or areas of said operation, the Department of Development Services, and such technical specialists as it may deem necessary, shall conduct an inspection to certify said completion of reclamation in accordance with the approved reclamation plan and the Act. (b) Prior to sending written notification to the operator certifying satisfactory completion of reclamation and prior to release of financial assurances, the county shall obtain written concurrence from the Department of Conservation that the completion of reclamation of the lands disturbed by the surface mining operation is in accordance with the requirements of the approved reclamation plan. (c) Those lands disturbed by surface mining for which reclamation according to the approved reclamation plan has been certified complete by the Department of Development Services, and for which the county has obtained written concurrence from the Department of Conservation, shall no longer be subject to mining without amendment of the reclamation plan, the mining permit, and the use permit, if required. (d) Upon the termination of all mining under the permit and certification of all reclamation pursuant to Section 13-120(a), (b) and (c), and upon the release of all financial assurances, the Department of Development Services shall schedule a public hearing before the Planning Commission in the same manner as provided in Section 13-110 of this Article to consider the completion of reclamation and the expiration of the associated mining permit and use permit for mining, if required. (e) The Planning Commission, on the basis of evidence submitted at the hearing, and upon findings made based upon such evidence, shall recommend to the Board of Supervisors whether reclamation has been completed and the permit may be expired. Upon the Planning Commission's recommendation, the Department of Development Services shall schedule a noticed public hearing before the Board of Supervisors pursuant to Section 2445.25 of this Code. (fl The determination of the Board of Supervisors shall be final as provided in Section 13-110 of this Article. Sec. 13-121. Enforcement. (a) Violation - Public Nuisance. Any violation of this Article, or the terms or conditions of any order or permit issued, or any mining operation which constitutes a Substantial Change to ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -21- 35 W the applicable mining permit and/or mining use permit or results in a Substantial Deviation from the reclamation plan approved pursuant to this Article, is unlawful and is declared to be a public nuisance which may be abated in the manner provided by law. (b) Violation - Noncompliance (1) If the Director of Development Services preliminarily determines that an operator is operating without having a mining permit approved pursuant to this Article and without having a right to do so pursuant to vested rights determined to exist pursuant to Section 13-113, the Director shall notify the operator by personal service or certified mail. If the operation continues and the operator fails to produce evidence within thirty (30) days that the operation is being conducted pursuant to and in compliance with a mining permit or vested rights, the Director of Development Services shall order the operator to cease operations immediately and apply for all necessary permits and approvals. An order issued pursuant to this subsection is effective immediately and is not appealable. (2) If the Director of Development Services determines, based upon an annual inspection pursuant to Section 2774, or otherwise confirmed by inspection of the mining operation, that a surface mining operation is not in compliance with the terms or conditions of any permit issued or reclamation plan approved pursuant to this Article, and/or is not in compliance with the Act, the county, in conformance with Section 2774.1(a) of the Public Resources Code, shall notify the operator of that violation by personal service or certified mail. If the violation extends beyond 30 days after the date of the County's notification, the Director of Development Services shall issue an order by personal service or certified mail requiring the operator to comply. (3) An order issued under Section 13-120(b)(2) above shall not take effect until the operator has been provided a hearing before the Planning Commission concerning the alleged violation. Any such order shall specify which aspect of the surface mine's activities or operations are inconsistent with the Act, and/or with the terms or conditions of any permit issued or reclamation plan approved pursuant to this Article, and/or Chapter 24 of this Code, as applicable, shall specify a time for compliance, and shall set a date for the hearing, which shall not be sooner than thirty (30) days after the date of the order. Notice of the hearing shall also be given in the same manner as specified in Government Code Section 65905. Based upon the evidence presented at the hearing, the Planning Commission shall take formal action to recommend to the Board of Supervisors whether or not such order issued under Section 13- 120(b)(2) above shall take effect and whether the order shall be modified and re -issued by the Board. The Board may also suspend, revoke or modify the operator's mining permit, mining use permit and/or reclamation plan. (4) Any operator who violates or fails to comply with an order issued under Section 13- 120(b)(2) above and determined pursuant to Section 13-120(b)(3) to take effect, shall, after the order's effective date, be subject to a further order or orders by the Board of Supervisors imposing an administrative penalty of not more than five thousand dollars ($5,000.00) per day, assessed from the original date of noncompliance with this Article. If imposition of an administrative penalty is placed on a Board of Supervisors meeting agenda for consideration, notice shall be personally served on or mailed to the operator by certified mail ten (10) days prior to the meeting date. The notice shall identify the alleged violations or failures to comply. (5) Any operator who fails to submit a report to the Director of the Department of Conservation and the Planning Division under Section 2207 of the Public Resources Code and ■ Butte County Department of Development Services ■ ■ Junelg, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -22- 36 13-116(a) shall be subject to an order by the Board of Supervisors imposing an administrative penalty of not more than five thousand dollars ($5,000.00) per day, assessed from the original date of noncompliance with this Article and/or Section 2207 of the Public Resources Code. If imposition of an administrative penalty is placed on a Board of Supervisors meeting agenda for consideration, notice shall be personally served on or mailed to the operator by certified mail ten (10) days prior to the meeting date. The notice shall identify the report or reports that allegedly have not been submitted. (6) In determining the amount of the administrative penalties for subsections (4) and (5) above, the Board of Supervisors shall take into consideration the nature, circumstances, extent, and gravity of the violation or violations, any prior history of violations, the degree of culpability, economic savings, if any, resulting from the violation, and any other matters justice may require, including but not limited to the cost of county staff time relating to the violation or violations. The determination by the Board of Supervisors in the exercise of the authority granted herein shall be final. (7) Remedies under this section are in addition to, and do not supersede or limit, any and all other remedies, civil or criminal. (8) If an operator mines or continues to mine after the operator's Mining Permit and mining use permit, if any, has been suspended, the Director of Development Services shall give notice to the operator to commence and complete reclamation in accordance with the approved reclamation plan and shall commence proceedings to revoke the mining permit and use permit /40� for mining, if any, in the same manner as specified in Section 24-45.65 of this Code. Sec. 13-122. Mineral Resource Protection. (a) Mineral resource areas that have been classified by the State Department of Conservation's California Geological Survey, designated by the State Mining and Geology Board or by the Butte County General Plan, as well as existing surface mining operations that remain in compliance with the provisions of this Article, shall be protected from intrusion by incompatible land uses that may impede or preclude mineral extraction or processing, to the extent possible for consistency with the Butte County General Plan. (b) In accordance with Public Resources Code Section 2762, the Butte County General Plan will be updated to reflect mineral information (classification and/or designation reports) within twelve (12) months of receipt from the State Board of such information. Land use decisions within Butte County's unincorporated areas will be guided by information provided on the location of identified mineral resources of regional and statewide significance. Conservation and potential development of identified mineral resource areas will be considered and encouraged. Recordation on property titles of the presence of important mineral resources within the identified mineral resource areas may be encouraged as a condition of approval of any development project in the impacted area. Prior to approving a use that would otherwise be incompatible with mineral resource protection, conditions of approval may be applied to encroaching development projects to minimize potential conflicts. to 1 ■ Butte County Department of Development Services ■ ■ June18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -23- 37 Section 2. Section 2445.25, entitled "Use Permits - Hearing," of Chapter 24, Entitled "Zoning," of the Butte County Code, is amended to read as follows: "Section 24-45.25 Use Permits - Hearing. Upon the filing of a sufficient and proper application and payment of the fees provided for in Section 2445 herein, the planning commission shall fix a time and place for a public hearing. A notice of hearing on the application for a use permit shall be both published in a newspaper of general circulation in accordance with Government Code Section 65090 and be mailed pursuant to Government Code sections 65905 and 65901 to the owners of all property within three hundred (300) feet from the exterior boundaries of all property upon which an application for proposed use has been made. Said notice shall be mailed to said property owners at their last -known addresses using the address from the latest equalized assessment roll of the County of Butte, except that in no case shall less than ten (10) separate and individual property owners closest to the area being considered be notified. Said notice shall indicate the time, date and place of the hearing and the location of the subject property. Failure of any property owner to receive such a notice shall not affect in any manner the action taken by the Planning Commission or the Board of Supervisors. Section 3. Severability. W If any provision of this ordinance or the application thereof to any person or circumstance is for any reason held to be invalid by a court of competent jurisdiction, such provision shall be deemed severable, and the invalidity thereof shall not affect the remaining provisions or other applications of this ordinance which can be given effect without the invalid provision or application thereof. Section 4. Effective Date and Publication. This Ordinance shall be and it is hereby declared to be in full force and effect from and after thirty (30) days after the date of its passage, and before the expiration of fifteen (15) days after its passage, this Ordinance shall be published once with the names of the members of the Board of Supervisors voting for and against it in a newspaper published in the County of Butte, State of California. ■ Butte County Department of Development Services ■ ■ June 18, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -24- 38 /00%\ PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of California, on the day of , 2009, by the following vote: AYES: NOES: ABSENT: NOT VOTING: Bill Connelly, Chair of the Butte County Board of Supervisors r:,%M1*3� GREG ITURRIA Interim Chief Administrative Officer and Clerk of the Board 140� ■ Butte County Department of Development Services ■ ■ June IS, 2009 Committee Meeting ■ DRAFT Revision to Butte County Mining Ordinance ■ -25- 39 �v y VC! A'l'1'f.0 A N ['A? tONSMWITION TE MINING AND GEOLOGY BOARD STA N DIEPARTM ENT OF 801 K Street • Suite 2015 ALLM M. ]ONEs, CHAIR CHERYL BLY-CHESTERi VICE CHAIR December 22, 2008 CONSERVAILM Sacramento, California 95814 FAX: 916 / 445-0738 -a TDD: 916 / 324-2555 • INTERNET: conservation.ca.9Qv/smgb ERM GARNER ]ULIAN C. ISHAN COILINT - KATHY LUND ROBERT TEQEL 2 'a lot V3�}qT VIA FACSIMILE: 1530) 538-7785 VIA CERTIFED MAIL: 7006 2150 0000 6804 3767 Mr. Chris Thomas, Associate Planner anServices Butte County Department of Development 7 County Center Drive Oroville, Califomia 95965 RE: County of Butte Draft Ordinance Amending d eclamation Cha ter 13 Article ll Surface IlArnln Dear Mr. Thomas: to review the proposed revision to the County of Butte Draft Thank you for the opportunity 2008. pursuant to th Surface Mining and Reclamation Ordinance, dated NovemberPublic Resources Code (PRC) Surface Mining and Reclarnation Acs of l ad (S `nin accordance with state policy Section 2774(a), every lead agency shall adopt ordinancesrof reclamation plans and financial which establish procedures for the review o nd duct surface mining operations, except that assurances and the issuance of a permit tdefer an active surface mining operation in its jurisdiction may ordinances any lead agency withoutapplication. The o adopting an implementing ordinance until the filing of a permit a d shall be periodically p g procedures requiring at least one public hearing shall establish •e lead agency and revised, as necessary, to ensure that the ordinances continue t reviewed o be in accordance with state policy. ri When a Mining Ordinance is received for review, it is examined for: Content, Claty, andstaff, one or more Conflict, The review is conducted by the Executive officer,ne Reclamation, and the administrative and/or technical analyst from the Q9i=1 of and legal advice may be sought SMGB's legal counsel. If necessary, additional tech from the Califomia Geological Survey or from the Attorney General's Office. Concent. The Ordinance is examined to determine if all SMARA requirements • are addressed and contained within the ordinance. '4''ti 1,11ere8l ill the DerveluplNt'Jtt. L'11JJ:,tttJUtl tt/l 11is�iull q/ t1je Bulli' =l�liltin, and Geold.10 Board it Its Rcprt c1t11►IN Sltllt'Dt'��c'lvpnrelrt ()f (,e and Sl�hAV lrt:.�trlt ("�,)!cc'rrtrlir,ll nl Z►Jllerul Rc�+nllormad O l; and to Pr n rile a llar ntf or 1'rtbllr Redrew h:Ji Mr. Chris Thomas December 22, 2008 Page 2of4 Clarity: The contents of the Ordinance are examined to determine if they are clearly stated or might be construed in more than one way, which might lead to later confusion. Conflict: The contents of the Ordinance are examined to determine that they are not in conflict with statute, nor are in conflict intemally with other portions of the Ordinance. The Staff Review offers two types of review comments: Recommendations and Suggestions. These comments are not binding and are offered as a constructive service. Recommendations are comments that should be followed if the Ordinance is to be certified by the SMGB. These recommendations relate to serious omissions in content or statements in conflict with SMARA or the SMGB's Regulations. au -9 are comments that are made to improve the clarity of statements, usually by making them more complete or by offering references. /00� In review of the proposed ordinance for compliance with SMARA and the SMGB's regulations, the following recommendations and suggestions are offered for your consideration. Sec 13-101.1. Purpose and Intenti We suggest that, in addition to referencing SMARA, reference should be made to Title 14 CCR Section 3502, which outlines the objectives of Reclamation Plans, and Title 14 CCR Section 3700 et seq., which are the Reclamation Standards to be incorporated into a reclamation plan. Sec. 13-102. Definitions — Recommendation for clarity of author : It is recommended that the definition of "Minor modification" be revised to include "(5) A substantial extension of the tennination date of the mining operation as set out in the approved reclamation plan, and (6) Changes that would substantially affect the approved end use of the site as established in the reclamation plan." Sec. 13-103.6 Definition - Suggestion for com lateness and cla ' : Change "State Boa d of Mining and Geology to "State Mining and Geology Board." Sec 13-107 Public Hearing — Recommendation for clarity of autho ft: Public Resources Code has been revised to reflect new procedures for the review and approval of reclamation plans and financial assurances, including existing financial assurances, by the lead agency and the Department of Conservation Office of Mine Reclamation (OMR) pursuant to PRC Section 2774(c). It is recommended that the following language be added: "Prior to approval by the Planning Commission of a surface mining operation's reclamation plan, financial assurances, including existing financial assurances reviewed by the Planning Commission, pursuant to subdivision (c) of Section 2770, or any amendments, the dd I� • or amendments shall be submitted to OMR for review. An reclamation plan, assurances, , Mr. Chris Thomas December 22, 2008 Page 3 of 4 documentation for that submission shall be submitted to the OMR at one time. When the Planning Commission submits a reclamation plan or plan amendments to OMR for review, the Planning Commission shall also submit to the director, for use in reviewing the reclamation plan or plan amendments, information from any related document prepared, adopted, or certified pursuant to Division 13 (commencing with Section 21000), and shall submit any other pertinent information. The Planning Commission shall certify to OMR that the reclamation plan is in compliance with the applicable requirements of Article 1(commencing with Section 3500) of Chapter 8 of Division 2 of Title 14 of the California Code of Regulations in effect at the time that the reclamation plan is submitted to OMR for review. OMR shall have 30 days from the date of receipt of a reclamation plan or plan amendments submitted, and 45 days from the date of receipt of financial assurances submitted, to prepare written comments, if OMR so chooses. The Planning Commission shall evaluate any written comments received from the director relating to the reclamation plan, plan amendments, or financial assurances within a reasonable amount of time. (48hl) The Planning Commission shall prepare a written response to OMR's comments describing the disposition of the major issues raised. In particular, if the lead agency's position is at variance with any of the recommendations made, or objections raised, in the director's comments, the written response shall address, In detail, why specific comments and suggestions were not accepted. Copies of any written comments received and responses prepared by the lead agency shall be forwarded to the operator. To the extent that there is a conflict between the comments of a trustee agency or a responsible agency that are based on the agency's statutory or regulatory authority and the comments of other commenting agencies which are received by the lead agency pursuant to Division 13 (commencing with Section 21000) regarding a reclamation plan or plan amendments, the Planning Commission shall consider only the comments of the trustee agency or responsible agency. The Planning Commission shall notify OMR of the filing of an application for a permit to conduct surface mining operations within 30 days of an application being filed with the Planning Commission." Sec. 13-109. (g)idle Mines/Interim Management Plans - Recommendation for clarity of authori ; This subsection states that "The Development Services Department, and such technical specialists as if may deem necessary, shall annually inspect each Idle mine to assure compliance with the approved Interim Management Plan." It is recommended that this language be modified to state "shall conduct inspections of each idle mine at least once each calendar year, in accordance with section 2774(b)..." Sec. 13-110. Vested Rights - Suggestion for completeness and clarity: The SMGB has formulated regulations for establishing administrative procedures for conducting a vested right determination upon request from a claimant, when serving as a lead agency under SMARA. The County is not obligated, but may wish to consider such procedures for conducting such determinations. 42 Mr. Chris Thomas r''� December 22, 2008 Page 4 of 4 Sec. 13-112. (b) Annual Reportsllnsgections - Recommendation for clarity of authority: This subsection states that "The Development Services Department, and such technical specialists as it may deem necessary, shall conduct annual inspections in accordance with seoHon 2774(b) of the Public Resources Code..." It is recommended that this language be modified to state "shall conduct inspecfions at least once each calendar year, in accordance with section 2774(b)..." This language is also applicable to Sec. 13-109. (g) which pertains to inspection of surface mining operations that are idle and operating under an approved Interim Management Plan (see above). Sec. 13-117. (a) Mineral Resource Protection- Suggestion for comaieteness and clarity: Change "Division of Mines and GeoloW to "Calffomia Geological Survey." Sec. 13-117. ,(a) Mineral Resource Protection - Suggestion for completeness and clarity: Change "State Board" to "State Mining and Geology Board." Thank you for the opportunity to review the County of Butte revised mining ordinance. We look forward to the receipt of a revised document that addresses the suggestions and recommendations indicated above. I will be pleased to place the ordinance before the SMGB for State certification consideration. The first opportunity to publicly recognize your ordinance will be at our February 5, 2009, regular business meeting, which is scheduled to take place in Sacramento. Your attendance is not required, but you would be welcome to attend if you are able. You will be sent a notice of that meeting and a copy of the agenda approximately two weeks prior to the meeting. Please do not hesitate to contact me should you have any questions, or require further assistance. Sincerely, Stephen M. Testa Executive Officer cc: Ms. Deborah Wordham, Deputy Attorney General 43 Response to Comments from the State Mining and Geology Board The SMGB (see Attachment E) offered two types of comments: (1) recommendations that "should be followed if the Ordinance is to be certified by the SMGB," and (2) suggestions "that are made to improve the clarity of statements" but are presumably not mandatory for SMGB certification. Upon review, staff agreed that all SMGB recommendations and suggestions provided the proposed amended mining ordinance with greater consistency with SMARA and served to clarify both procedures and intent. Said recommendations and suggestions are therefore incorporated into the current proposed ordinance. 14� W /4001\ Responses to Comments from the Butte Environmental Council (BEC) BEC provided two comment letters with the following concerns: Reclamation Plans and Regulation of Backfill. Regulatory oversight of debris used as backfill in surface mine excavations. Backfill and potential contamination of surface and/or groundwater is addressed in SMARA through CCR Section 3704.1, which references necessary Waste Discharge Requirements and oversight from the Regional Water Quality Control Board. BEC notes that the Regional Water Quality Control Board's definition of fill (that may be used as backfill in a mine pit) is less defined than that of the California Integrated Waste Management Board and, therefore, the proposed amended mining ordinance (and SMARA) may allow contamination of vulnerable waters through lack of appropriate oversight of backfill materials. (Apparently certain very large excavations in southern California quarries were, at the end of their operations, converted to landfills. Permit and reclamation plan conditions, and SMARA, may have not adequately addressed the quality of backfill debris allowed in the excavations, with consequent impacts to water quality.) A few reclamation plans for current operations include backfilling to return a site to its original contours. No current operations have an end use as a landrill, but such could occur in the future. Backfill may consist of overburden (e.g., naturally occurring rock and soil) excavated as part of the operation or another operation. Conceivably, it could consist of so-called "inert waste" such as certain types of construction debris. To address BEC's concern, Staff added the following text to Section 13-108(b)(12): "(12) A description of the source for and nature of all rill, if any, required for reclamation, and verification that all such rill complies with all applicable Regional Water Quality Control Board and Califomia Integrated Waste Management Board regulations pertaining to fill material,"" With the adoption of the proposed language, future operations would have to comply with Article 9 (14 CCR 3700 et seq.) and CIWMB standards as applicable. Backfill for operations permitted after 1993 (when current Article 9 standards [14 CCR Section 3700 et seq j came into effect) would have to comply with Article 9 standards. Article 9 standards (which came into effect in 1993) do not apply to operations permitted before 1993. Groundwater Ordinances. BEC has noted potential impacts to groundwater resources by surface mining operations and requested that the amended mining ordinance that the ordinance should "identify the water ordinances as the governing entities for groundwater protection" and explicitly reference Butte County Code Chapters 23B (Water Wells) and 33A (Groundwater Management). (Please note that the BEC letter discusses Chapters 23A [Uniform Transient 45 Occupancy Tax] and 33 [Groundwater Conservation — groundwater export permits]. Upon subsequent communication, it was determined that the appropriate chapters were 23B and 33A, ordinances related to well spacing and groundwater protection through Basin Management Objectives, respectively.) Under the proposed Section 13-905, mining permit applications will require detailed information regarding the amount of water to be used and its source, and the amount of wastewater produced and its destination. This information will further be subject to CEQA review. Under the proposed Section 13-106, applications must be circulated to the Butte County Water Commission, the Department of Water Resources and the Regional Water Quality Control Board Any proposed wells would have to receive appropriate permits from the Environmental Health Division per Chapter 23B. Referencing Chapter 33A, however, could lead to confusion: Chapter 33A relates to Basin Management Objectives; it does not contain enforcement provisions or enforceable thresholds. By circulating mining applications to the Water Commission, affirmative notice of an operation's water demands would be provided to the appointed body concerned with groundwater resources. The Water Commission (and the Department of Water Resources and the Regional Water Quality Control Board) would also receive any environmental review associated with a mining permit application and could comment accordingly. That review would also address watershed (e.g. drainage, water quality) effects of the project. Surface Aggregate Operations Committee. In regards to the Surface Aggregate Operations Committee created by the Board of Supervisors in 1984 (per Resolution 84-197, later amended by Resolution 99-101), BEC states that the °County must clearly delineate the committee's function and roles through either a separate ordinance, sub -section of Chapter 13, or through specific by- laws." Resolution 84-197 provides that the Surface Aggregate Operations Committee "advise said Board on the questions said Board directs to the Committee." Resolution 99-109, adopted July 27, 1999, amends 84-197 in regards to the rinancial interest Committee members may have in certain mining interests under their review. In response to BEC's comment, the Section 13-103 definition for the Surface Aggregate Operations Committee was expanded as follows: "Committee" means the five -member Surface Mining Aggregate Operations Committee created by Resolution 84-197 as subsequently amended by Resolution 99-101 or future resolutions. The Committee's purpose is to advise the Board of Supervisors on all matters pertaining to surface mining including, but not limited to, permit and reclamation plan 2 Em /00041 applications, financial assurances, and mining operation compliance with this Article and the Surface Mining and Reclamation Act." Impacted Regulatory Agencies. BEC asks that mining applications and the County's operational oversight through the mining ordinance reference the jurisdictional mandates of other agencies (e.g., the Army Corps of Engineers, the Regional Water Quality Control Board and the Department of Water Resources). A mining permit application would, as a matter of course, be circulated to the above regulatory agencies — and others, as required (e.g., U.S. Fish and Wildlife if endangered species impacts were anticipated). Review under the Califomia -Environmental Quality Act would discuss potential impacts to resources under the jurisdiction of other regulatory agencies and those agencies would be asked to review and comment the environmental document and any proposed mitigations relevant to their concerns. In regards to ongoing operations, all regulatory agencies may exercise their jurisdiction over a County -permitted surface mining operation as they deem necessary. However, in order to provide afrrnative notice to applicants and operators that application review is not the sole province the County, the following text was /001� added to Section 93-906 Application Review Procedure: "Within thirty (30) days of accepting the application as complete, the Planning Division shall distribute copies of the mining permit application, reclamation plan, and financial assurance cost estimate to the Director of the Department of Conservation, the Department of Fish and Game, the Regional Water Quality Control Board, the County Public Works Department, the Butte County Water Commission, the Committee and other responsible agencies, including but not limited to, the United States Army Corps of Engineers, the California Department of Fish and Game, the California Department of Water Resources and the Central Valley Division of the Regional Water Quality Control Board." 3 47 Responses to Comments From Mark Harrison ff, � theAta-dam t tfta- anile o—uM �pmba* arevis a en .topde ` t de + i tt 4 s i reF not + . seed' thevpO .. ta1 ce OW-MrF c 1 M 40 �G�," AR #10ft sof ahy,����i lq��� : ltitlal=. ti'�tt.` s itr ,if dor Boy oto i�ut .d1��� �lx��1it A q -p@ aov TJYPtotoW►� .. my eW ears:b V 0 ftww. afv he.0 .sup The definition of "substantial change " has been changed and is now consistent with CEQA Guidelines Section 15162 (substantial changes requiring subsequent EIR). Under the definition, a minor deviation (e.g., a modest increase in depth) would presumably not result in significant new environmental effects and would not necessarily be a violation of a permit. i0"�1 "Substantial change" shall mean a change in a mining operation that (1) is not a minor modification as defined in this section; or (2) results in operations causing new significant environmental effects or a substantial increase in the severity of previously identified significant effects which were not considered in the environmental review conducted pursuant to the California Environmental Quality Act; or (3) is not in compliance with the terms or conditions of the applicable mining permit and use permit, if required, including but not limited to terms or conditions relating to area of disturbance, depth, rate of extraction, hours and days of operation, removal of vegetation, removal of overburden, dust, noise and vibration control, salvaging of top soil and vegetation, and setbacks from property lines, roads, water channels and other features. 10� Biter SR7A rorIRA;regu[fions requ'�re minertors tosses�the presenW df stet statUt-Widi'cfe or bidnf*pecie$:tri as J# od tQ a it It e site Rasher, the aua o sm—A 's_ Provisjv S, insofar as fey rela`t& t6. vildkf' 6 anis plant .species, xs: ...rohOWWOadf habitat on-disturbedoodisiurbed laude ons r, (ee:g Reou101 ons,. �-�,�1-0-34 A 4awmil n �-e e ti . sS lr� the p6ssi�la �reseric l idtifa and01-''r Bi s inti=:s o. e y q in th - to der . lull" require "as''i ' i tt `Ihke e`hvti tnrictenf l re e�uv p?m�cs.yy-srnaymdudIno-larecf rn Ion: itrgtrr .andl©r MIM.4d porr-n#; Fart 3esa:rettser�a� hey Bur jr ma 'iN sN fo reWse l isr sectbre 'tf t Qr-d aces= -seer 'is'l#1=.wire thehtoingeel r�saussseeser#tedcrae:ef -presence 6f.-v6d"r stain .� ent-an,d' gild NO:,spocles. on dislorbod landt 001k� , Although not required by SMARA, CEQA review for a mine permit will likely involve assessment of special status biological resources. Staff has had experience with applicants who are unaware of the CEQA review standards, leading to dfculties and time delays for both the applicant and the County in review process. We wish to provide affirmative notice in the ordinance of the level of environmental review that will be required Per your comment during our phone call regarding surveys of parcels adjacent to the project site, please see the following correction of the (current) Section 13-105: ( 1) A description of the proposed project's regional environmental setting; (2) A biological resources assessment of the parcels containing the proposed maximum area of disturbance, to be conducted by a qualified biologist, describing existing plant communities, wildlife, and the occurrence of, or the potential for occurrence of, special -status plant and wildlife species and plant communities and their relationship to the regional environmental setting; . etyli 140SM: ritdtrtls fdt Realaf nafi©h OWen r, 604100 id4062taregtrites " se6sten a a er d +an torp e ` ed " la moiYw �#OftT", frewea or 71 ATM, 0 i rds Tlti is � r a+ ur to fin ��Qf 0 MW 40 cerlaan e iandarc spa r ap leezf <n aWite a g e r et a is n if di ft6w. n�GDrponde bymftsnas, the W. iam4bn Pl t . s its rine #Q !+hAn re0amA.1am. Oon me qn ��r:� a►�d ��t�� rl�tt��iir1`.��'iet�+di�®�i� I�t��fi'f, �Tie::a� ��,'l�nc�ati�� The suggested change has been made in what is now Section 13-108. We have also added 14 CCR Section 3502(e) for when the Article 9 standards would be required in an amended reclamation plan: Sec. 13-108. Standards for Reclamation. Cos] (a) All Reclamation plans shall comply with the provisions of Public Resources Code sections 2772 and 2773 and State regulations 14 CCR, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq.), and shall include a statement that the person submitting the plan accepts responsibility for reclaiming the mined lands in accordance with the reclamation plan. Reclamation plans approved after January 15, 1993, reclamation plans for proposed new mining operations, or any proposed amendments to previously approved reclamation plans determined to be a substantial deviation pursuant to State regulation 14 CCR Section 3502(d), or where an amended reclamation plan is required pursuant to State regulation 14 CCR Section 3502(e), shall also comply with the state regulation requirements for reclamation performance standards (14 CCR Sections 3700-3713). Wt .11 QIW I WO Staff initially provided for cost estimates to only be done by licensed engineers because, due to poor quality, an undue amount of time ensues trying to get an acceptable estimate. On balance, however, staff defers to SMARA and the suggested changes have been made in what is now Section 13-109(b) and (n. dift I1 uh The public hearing provision (now Section 13-110) has been re -written to provide a different determination process for the County (Planning Commission makes a recommendation to the Board rather than a determination that can be appealed to the Board). Section 13-110(c) and (d) are now consistent with PRC Section 2774(c) and (d): (c) Prior to the Board of Supervisor's final approval of a reclamation plan, 50 /00**1 financial assurances (as provided in Section 13-109 of this Code) or any amendments to the existing financial assurances or the reclamation plan that constitute substantial deviations from the existing reclamation plan (under Section 13-117 of this Code), the Board of Supervisors shall certify to the State Department of Conservation that the reclamation plan, financial assurances and/or amendment complies with the applicable requirements of State law. Certification pursuant to this subsection is not approval of the Application. The Planning Division shall submit the reclamation plan, financial assurances and/or amendments, and any related document prepared, adopted or certified pursuant to the California Environmental Quality Act, to the State Department of Conservation for review pursuant to PRC Section 2774(d). All documentation for that submission shall be submitted to the Department of Conservation at one time. The director of the State Department of Conservation shall have thirty (30) days from the date of receipt of a reclamation plan or plan amendment and forty-five (45) days from the date of receipt of a financial assurance to prepare written comments, if the director so chooses. The county shall evaluate any written comments received from the director relating to the reclamation plan, plan amendments, or financial assurances within a reasonable amount of time. (d) The county shall prepare a written response to the director's comments describing the disposition of the major issues raised by the director's comments, and submit the county's proposed response to the director at least thirty (30) days prior to approval of the reclamation plan, plan amendment, or financial assurance. The county's response to the director's comments shall describe whether the county /1010� proposes to adopt the director's comments to the reclamation plan, plan amendment, or financial assurance. If the county does not propose to adopt the director's comments, the county shall specify, in detail, why it proposes not to adopt the comments. Copies of any written comments received and responses prepared by the county shall be forwarded to the operator. The county shall also give the director at least thirty (30) days' notice of the time, place, and date of the hearing before the lead agency at which time the reclamation plan, plan amendment, or financial assurance is scheduled to be approved. If applicable law requires no hearing, then the county shall provide thirty (30) days notice to the director that it intends to approve the reclamation plan, plan amendment, or financial assurance. The county shall send to the director its final written response to the director's comments within thirty (30) days following its approval of the reclamation plan, plan amendment, or financial assurance during which period the department retains all powers, duties, and authorities under the law. T e+ 00.�o rdirri, am: poe ba #hat mwe0, tg 1g, 1 ( ► r Imv m. p�aro that _. �.: . 51 First; 4ttedd lett ustswitannuaknpoiftnw-underO4umy TAIr WW. ., `*C- Jftfe i��C ntj"Vila 011e l ?G�ri�r � 07AXI 09,10 ` ort c �Y R > �r� � ; it , p it a" bais� n . � u�a t :fh�ere i$ uv�P Allow, xhe ounfy v4fCea � mok of thy: h' Seco =xi�r�t� ' open #ake �o id -pe bmsod Jor ga*ion ownomic n iftv�s ,woo*., :` Cly*h,u > iahbrntt-,. s haves t �e + frd�r #!L to c afus�on .44916Qt t ire t i s r: e C :a i. b Land ar AAAA uaft,as W.On =`� : Wim; o Staff mistakenly understood the PRC Section 2207 annual reporting requirement as only applying to active, idle or reclaiming mines but have confirmed with the ice of Mine Reclamation that any permitted mine must file the ARRC -2 annual report whether it has commenced operations or not. Because they are required within the year of permit issuance and annually thereafter, we agree that production reports provide sufficient notice regarding a mine's status and have changed what is now Section 13-111 accordingly. In regards to whether or not a lapse provision should even be included in the ordinance (as it is not required by SAARA and given your point regarding mining economics), we wish to avoid a scenario in which a permitted operation waits an unreasonable amount of time before starting, during which surrounding development or significant changes in the environment may have occurred that would not be consistent with the review originally provided for the approved permit. Please note that the Section 13-111 now also includes an extension request process, and a process for an operator to appeal a lapse determination by the Director of Development Services. That said, staff is requesting Board direction regarding inclusion of a lapse provision as a policy matter. =!Vi►�;, ori .� %f9000. oft " ,fig Cirri 1 its 0. tit Of Vin000 .', sd tit No Thi Via! :€�ar�ddrd L- e I 52 ,e0*41 apprxwed*<redo[amatio'n :plan:" (SWARA . 2770(h)(6).- -_As eA00A06d by'the:zippiicab(e legislativehlsxory,. the overerrching. purpose oftheldie minesp ov-1sions'is-to ensure the ce ame#!on-'vf-permanenty nacVve,rr esu. not to affect ut dei g :use parnks or vet19+s.'rnnY vv Y� . Fu rthe`r, :thetq question of when a vested:minin�: right is Ab�and �neid 1ebts on caDW. Mon pnnc�pies. The- setrnnikese orr-tiila. issue . the, 09116tnla Supreme. Qpprt d0oisim.. Hansen Bros. E'ntemdse 'v.. goad of, Supervisors of N.evede County ('1196}. Cai.tf X33 (�h►asen'. In:,Hansen;; the Supreme fiotrt=articulated the +equ�rernents ti ssary'to "aban�d00 V -06th utung ngtitS. `Tfte Court held thatvest mirii right `�c an be a baradorted o teyr iti a o'ui ron i to ocsc�irreh :e -of ktwo facto s (- Ootu t p orator interit:�to abandon ��-Iae}:.'nd� (2): So- oY4 � c�r'fi Wla tQ a°c�, uhc it+�firta� #h oRra%r nogonr claims: an :rter..es:i eeted dght (Horts00�- SO) MO ,pir.�t, unlet.-arimpomtormustAntmid.to:cCt�ic'pn n4��f. tf and :.whii- iy disoontfhu :itw.ei Mi It"rung eht� �e 0"d.11: 41 tot. .40000 1* 10 ,,th) iyi46h.. iAbandon a ep '#tQr: must s .1VOTe 10 ,0,40 .►o'h:(s rer vo. Oe, r rigo ht ti ors ` a t+a t ai a0brnit a t , tr h�: ti, 0deT,eWRIN_. 0 a (dMARA 27774 h) ,f) AoWrd1ngjy, to-:erasurescons ken ti WARAI and Aihsi§n the C-ouaty hitist .rte +a Mott 001nancemdtson- ISAW to -car ova he CQoh '`s t o et h�ac as ita its tgvested sutface Whingqviattons. The idle mine/interim management plan section (now 13-112) has been substantially revised. In regards to your central point concerning revocation of a permit for an idle operation that does not have an IMP, the current Section 13-112(1) now provides that the Director of Development Services shall "consider whether to commence " revocation proceedings based upon specific evidence (see below). Section 13-112(m) and (n) provide an appeal process. As written, the proposed Section 13-112 does not require a permit to be revoked based upon a failure to provide an IMP but it does require consideration should certain circumstances exist. Note that the staffreport presents this issue as a policy choice for the Board. Section 13-112 Idle Mines/Interim Management Plans (1) The Director of Development Services shall also consider whether to commence proceedings to revoke the mining permit and use permit, if any, for a surface mining operation which remains idle for over one year after becoming idle as defined in Section 13-103 without obtaining approval of an interim management plan, unless review of an interim management plan is pending. The Director of Development Services shall consider evidence including: (1) violation of permit conditions; (2) deterioration of site conditions during the idle period such that reclamation consistent with the approved reclamation plan is precluded or would be substantially changed; (3) site conditions that are a threat to public health and safety; and (4) objective evidence of an intent by the operator to abandon the operation. /014� (m) Should the Director of Development Services commence proceedings to 53 revoke the mining permit and use permit, if any, said proceedings shall be commenced in the same manner as provided in Section 13-110 of this Article. (n) The Planning Commission, on the basis of evidence submitted at the hearing, and upon findings made based upon such evidence, shall, pursuant to Section 13-110, recommend to the Board of Supervisors whether the permit shall be revoked. The determination of the Board of Supervisors shall be final as provided in Section 13-110 of this Article. s � Se O Jt AAWA " 'tbW _t i tt -D terni3rtatiee�i 1` VdIIAt)OO + rMlh M s'r ri Cl r.W 0 + f m a#ia es �d .4 tv f, Mwvfoo h4�Atft,61%(Z A-0 A& toAh-Ovimikoo fil`isnssferif .Cl�r' t eo lh'tlgtt� *-OWeW R 4gn trg�iped�3r°#�'` Gotd%1_ntE '1 j wif itt tae Pditk- MR a Yuba Count-Y'zbniN IOWI em dto i#f�d s c it irl i the Ytrf a tdfielde: in 1949,a . , crame:rife Cour at C `#��lt, 'uba: �ourl iavite_d atl'rxti go oanrud a; ba��gee ar.. : l-1.1�r.. d`e�+e�b�.��v�:t�:as, �n �i#emafiir��� ren �r� �P �,t.�. Y appt.'�r 9 .9� �..1 I-aftbiffary 2000;IhA to Yuba Gow*.ffix a-v"ted hth &MMemail'. fir a e a fha Yuba. GoM alds, 19.00 at resof whMr. I twd elre y mih , Ira.aW— 140%. the Qmmun4 Revelopmerd M orfQur�d-that WA4wd MQ'gI . sd, iim ed. 04plerAft.009, rr tear. to # t . Tfie rst t nat r i�,dtiet a beafrr� art .. ftd hd 9d iOdW r�W or- a to e�ard t tarrdaauters. A h6r. aftd 6tMMIbM9hf I ' uc + © ton sr irr s rfa'ouer ni'# d tntihen basO'la ' A Yuba: GQ t' ailc r . 9 pt9v rtuti e. ctd 44nuane:7a I�u .[Q 69 on the d. , �rmfna�iQ! .. +Qn ev +ev k the (;.eurt 0' l a rlow vft, then afgh afs hot�Nhh'ing-Opermidn.,th-at ft �ti�an� Qin Irl ,claims. a vss dohf'. t rsuar416 g �.t� cdl�do A t ate 1S l� eoft2-th dirge tshon resat doMne,#.�elead' agency mushwiis rPw dural due pr�.cer r ementsm in its detemainatic�n. o��n tive�<�ur�.reciEzl%�'ti�$•t,�teste�;:�nir�l��. �ta3��-ria�� �is�#t: {and t t+pei,bfa%its: ofnforenaotnr�aenl :a�acl a�rrd. -Approvatx mled-that4", adstQn eoUIld not be applied retroactiv*. Tto aivad.-Oaurt ,deavibed #pis. Rp taon es fltgrs, I-Ojprdaddbo� e`tapy:�ai}1}�+teyy�rcfy�+ thjecrie befr. fA$l7�1 I:�V J1 4r 1YlelaiY1'f. -ded as, Men �.. O p Wh'. Ob OdMNiO. tee r" ' i 1 54 !001 mai htrre�en: func+d ;a ?deexref vetted: ,fin AocQr at + s ivy h: ar legis f ormal ves#ed r h s- dotdrmilftfiai t# id r`511?U4f ►, ` tl Id dots: notitpas y a.: p 0400 fair iia d rmiina (Id- --4 °��ftApPAI Ot OW11�rnpi� is 4009414 Tbt#sr tate; Ga WreMOr.0 0 . ve tad 't`i hta d t rrfttn #ib I% fiat A 0' .7, ��Wb tt 1 d ne.� w%adw mll rnea i . WWA zoi7-ahat a rai tng the need t fed rt ht t etet n #toy w► -.00 xan flp x�r hmi-1040Y�a " I d 8r h . r l 1ti ._ v #e g ►#s" p`l ortb the Wtkuve, da i& of -criv rtwjh ia3 is `d .st #tial h i ;ti ,�;:4 Monee ang tatggg.�� �e �l �rd����s re�,cOWn!;am-cipprPY46 "#6 a it ' 0. IWO.O eat is alarn fit r r it; l i ac t la Mimi Ol tos �asa .. mt°adti d : r `l t ltid t1 h d u h : stud: tsa r dimft weddi r":M 0. � wome a pa— P f, r fir a Cd rn�'l:` e e r t ,a a a : amb o. : R WS a �n . , . _01 e0ofeace .0 r., , ims -.0,00.11110400000- ? vio a66 ;i Thia:;or�c�d�i� w�� With a vested rights determination process (now Section 13-114), the County seeks to provide aff rmative notice and a clear procedure to unpermitted mines operating under a vested right that, under certain circumstances, a determination with public notice and hearing will be required. You note that "the Calvert requirements for vested rights determinations do not apply to surface mining operations which the lead agency has previously deemed as vested under a variety of `less formal' means. " Section 13-114(b) provides exceptions to the notice and hearing process: (b) Any person who has received a final determination from the county prior to the effective date of this section confirming a vested right to conduct surface mining operations pursuant to Section 13-113 of this Article shall not be required to file a Claim of Vested Right provided the scope of said operation has not expanded beyond that for which there was objective evidence of an intent to mine at the time of said final determination. Evidence of a final determination may include, but is not limited to, approval of a reclamation plan for the surface mining operation or a conditional use 55 permit for a use accessory to the surface mining operation. Staff is aware of three current mines operating in Butte County as pre-SMARA vested mines and an additional mine that received a written determination from a past Director that is not operating. The three operating mines have reclamation plans, two have received conditional use permits, and one received written recognition in 1973 of its pre- existing status such that it would not require a conditional use permit by its then new zoning designation. Such operations would not be required to undergo a vested right determination unless they sought to expand beyond the area contemplated in that written determination, reclamation plans and/or use permits (or other evidence) indicative of the scope of the vested right. Concern is expressed regarding prior determinations that "may improperly be used to limit the extent of a vested operation. " If the available evidence is not suff cient for staff to resolve the scope of the vested right, the matter would then presumably require consideration by the hearing body; given that the consideration would likely involve resolution of factual issues and the exercise of judgment, public notice and hearing would be necessary. The purpose of Section 13-114 is not to retroactively require any vested mine (again, staff is aware of only four in the County) to undergo a public hearing process regardless of the historic evidence defining the scope of its vested right. It is to provide a clear process and affirmative notice to a vested mine operator contemplating a substantial change that a hearing may be necessary when there is uncertainty regarding the scope of the vested right. It provides the same process for an operator that may have inadvertently gone the beyond scope a vested right. Staff appreciates your concerns regarding interpretation of evidence defining the scope of a vested right. Our additional concern is that the code provide advance notice to an operator contemplating expansion so that the extent of a vested right may be discussed before a substantial change is made. The staff report presents Section 13-114 as a policy question for the Board. Additionally, it includes your suggestion that the Board may wish to include the vested rights process as an optional forum to resolve disputes. The minor modification definition has been modified as follows: "Minor modification" means a change to a permit and/or reclamation plan that does not 56 result in a substantial change, as defined in this section, in the permit, or a substantial deviation from the approved reclamation plan as defined by 14 CCR 3502(d) and which: (1) Does not expand the area or depth of the project by more than ten percent of the existing area or depth or the area or depth permitted by the permit and/or reclamation plan, whichever is larger; (2) Does not result in a substantial change, as defined in this section, in activities or new activities not previously assessed; (3) Does not result in a substantial change, as defined in this section, of the termination date of the mining operation as specified in the approved reclamation plan; and (4) Does not result in changes that would substantially change, as defined in this section, the approved end use of the site as established in the reclamation plan. eo�ian,43- ,1 - hnfarcement Nftftffieft * rJ6awl' Aft: MRM ~vitlf ment poll "x m and TWT? (h a•al'lml*rd mpects. i.. S°e60act't3='I1fiel. ecnx�- `(�-:oatafioelhr t °ubtg Stie�Aalias>xgaiid,: a 'substa WWI -40000on" *0 4tk a��p�b�c .,dap .u� a funrdatner#al way, li1K1WA—pMe aad,#e,%Jted pplicyAt��`,RwgW cpopea g s ape r�finin �,•� ���+ans `flt2l�i�a�� fto�: �1�ei� ��P�'oY�4ar1 �I�rl'� ��,u� Vices Colo _�1� ����:�, sc�bdf�tisfar�s ��} #hraugti(�� es�ablis�i::a sp�i�;,p�1di�ier�tel� . des ,got . o sut c irrilr a -h a ed hr :.e -b iag. m �t�on of . Tfi atf. a,%en mashrtftrr onAhwr OAd'fher#or oeipcn volar beyond thirty. (,3Q) d* aMr 66ti0446xli the tepid ey—Marthen !awe's COMP order. -MMP1106ce et sped e$ A. "(00 -ail e' ,ae:folYcompfaw—,;' ekft Into wnsidea tan 'W"Wousne O -Wolstbn and et "ovd;Wt>r-o0o( to co' mph,, ' the opendar.. The. MmPlia Cra-00annoy nottakWOONA POM a h - 'ag: haa, b".0 gMWOOd, tW* even $, Srrq lsgercie td wir v�'literxi`tih +erettti► ab►treat potefai �tla�oas �eire �.�can�ssue_!_�al .�.t►s�es. This �nl�r-fir is�t�fnd:�iiese fou cogrte tt deufons tam ate ##a?atlabili.arage ;miK0,0 4 for p0bil a wft aad pthar impar #' x $hopld Q iia-; tdwClr Asked, TM Draft Otain-MdO'Oroposal-t6.tre;st. -61.8 , A[ dow6ftt:06 0fi�o: ihlowful Wsanoe i rthQ fo ncottsi�ste v th N ifi A The revised Enforcement Section (now 13-120) has been revised. In Section 13-120(a), the County is exercising its police power to determine what, in the surface mining context, constitutes a nuisance. As given in the proposed definitions, " Substantial Change " refers to a change in the mining operation that: (1) is not a minor modification as defined in this section; or (2) results in operations causing new significant environmental effects or a substantial increase in the severity of previously identified significant effects which were not considered in the environmental review conducted pursuant to the California Environmental Quality Act; or 57 (3) is not in compliance with the terms or conditions of the applicable mining permit and use permit, ,if required, including but not limited to terms or conditions relating to area of disturbance, depth, rate of extraction, hours and days of operation, removal of vegetation, removal of overburden, dust, noise and vibration control, salvaging of top soil and vegetation, and setbacks from property lines, roads, water channels and other features. Section 120(a) defines a nuisance; Section 120(b) provides for the enforcement process. The revised Section 13-120(b)(3) through (4) appear consistent with the process and time requirements in PRC Section 2774. L (3) An order issued under Section 13-120(b)(2) above shall not take effect until the operator has been provided a hearing before the Planning Commission concerning the alleged violation. Any such order shall specify which aspect of the surface mine's activities or operations are inconsistent with the Act, and/or with the terms or conditions of any permit issued or reclamation plan approved pursuant to this Article, and/or Chapter 24 of this Code, as applicable, shall specify a time for compliance, and shall set a date for the hearing, which shall not be sooner than thirty (30) days after the date of the order. Notice of the hearing shall also be given in the same manner as specified in Government Code Section 65905. Based upon the evidence presented at the hearing, the Planning Commission shall take formal action to recommend to the Board of Supervisors whether or not such order issued under Section 13-120(b)(2) above shall take effect and whether the order shall be modified and re -issued by the Board. The Board may also suspend, revoke or modify the operator's mining permit, mining use permit and/or reclamation plan. (4) Any operator who violates or fails to comply with an order issued under Section 13-120(b)(2) above and determined pursuant to Section 13-120(b)(3) to take effect, shall, after the order's effective date, be subject to a further order or orders by the Board of Supervisors imposing an administrative penalty of not more than five thousand dollars ($5,000.00) per day, assessed from the original date of noncompliance with this Article. If imposition of an administrative penalty is placed on a Board of Supervisors meeting agenda for consideration, notice shall be personally served on or mailed to the operator by certified mail ten (10) days prior to the meeting date. The notice shall identify the alleged violations or failures to comply. ° 't b -1. Wow. :�' f it l: 1 . MO ' 00 -401A 1C_: y,... r `. !0.19--- "n.; -C MW M hop "" m /00**N A vested mine would presumably be operating in compliance with Section 13-113. If an unpermitted operation asserts a vested right that was determined to be require a public notice and hearing, it would be subject to Section 13-114. Section 13-116(b)(1) provides for abatement of a surface mining operation that does not have a vested right, is not seeking a vested right determination, and does not have a permit that requires one per County Code and SMARA. 59 Butte CountyDeparbnent ofDevelopment Services TIM SNELLINGS, DIRECTOR I PETE CALARCO, ASSISTANT DIRECTOR 7 County Center Drive Oroville, CA 95965 (530) 538-7601 Telephone (530) 538-7785 Facsimile http1hvww.buttecounty.net1dds April 21, 2009 Butte County Board of Supervisors 25 County Center Drive Oroville, CA 95965 Subject: Review of a Revised Butte County Mining Ordinance, Butte County Code Chapter 13, Article 11 Surface Mining and Reclamation Recommendation Staff recommends that the Board of Supervisors: 1. Provide staff with direction regarding the policy questions outlined below; 2. Review the proposed amended mining ordinance and provide additional comments as desired; 3. Direct staff to make any requested changes and: a. Re -circulate the proposed ordinance with requested changes to the Department of Conservation, the Surface Mining Aggregate Operations Committee, the Planning Commission, Butte County's mine operators, and other interested parties; and b. Return before your Board for adoption of the proposed ordinance at the earliest opportunity. Pr ject Summary In 2006, the Director of Development Services determined that Butte County's Mining Ordinance (Butte County Code Chapter 13, Article II Surface Mining and Reclamation and included here as Attachment A), last amended in 1993, required updating to be compliant with the current Surface Mining and Reclamation Act (SMARA: PRC Section 2710 et seq.) and its implementing regulations (California Code of Regulations, Title 14, Division 2, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq.) and Article 9 (Section 3700 et seq.)). 0 Butte County Department of Development Services ❑ 60 0 Planning Division 11 Amendment Chapter 13, Article Surface Mining and Reclamation 0 140� In preparing the proposed mining ordinance (Attachment B), staff reviewed mining ordinances from Colusa (2003), Contra Costa (2000), Glenn (2005), Nevada (1999), Sacramento (2008) and Sonoma (1999) Counties. In November 2008, an initial draft of the proposed mining ordinance was provided for review and comments to operators of Butte County's 22 mines for which inspections and financial assurance review are performed, the Butte County Surface Mining Aggregate Operations Committee, the Department of Conservation, the Department of Fish and Game, the Butte Environmental Council, the Sierra Club (Yahi Chapter) and the League of Women voters. On December 11, 2008, the initial draft of the proposed mining ordinance was presented to the Planning Commission. No comments were received from the Planning Commission or the public at the hearing. Between January and March, 2009, staff analyzed comments received and, where indicated in Attachments C, D and E, incorporated changes into the present second draft (again, Attachment B). Responses to comments made by Department of Conservation, an operator's representative, and the Butte Environmental Council are included in Attachments C, D, and E, respectively. The proposed mining ordinance has been revised to be consistent with current SMARA code sections and its implementing regulations (Title 14 CCR 3500 et seq. and 3700 et seq.). The revisions provide: • New definitions consistent with SMARA; • Inclusion of a detailed biological assessment of the project site and project footprint in permittreclamation plan application requirements; • New SMARA-compliant standards for reclamation; • Revised financial assurance requirements; • A determination of vested rights process; • Clarification of minor modifications and substantial changes to permits and substantial deviations to reclamation plans; and • Protection of designated mineral resources in the Butte County General Plan. Detailed changes between the current and proposed ordinances are discussed in the Planning Commission staff report included as Attachment F. An overview of current surface mining in Butte County is included as Attachment G. Pursuant to the California Environmental Quality Act, staff is preparing an initial study for the amended mining ordinance to determine the extent of environmental review required. 0 Butte County Department of Development Services 0 61 0 Planning Division D Amendment Chapter 13, Article Surface Mining and Reclamation 0 v �i The operator's representative, Mr. Mark Harrison of the law firm Diepenbrock Harrison, had a number of concerns with the initial draft of the proposed mining ordinance. As discussed in the responses to his comments in Attachment D, Staff responded affirmatively to a number of those concerns and made the requested changes. However, four issues for your review remain in the draft included in this packet. Staff requests your direction regarding these four issues (discussed below) that involve the public hearing process (Section 13-110), circumstances under which a mining permit/reclamation plan may expire or be declared abandoned (Sections 13-111 and 13-112), and inclusion of an explicit process for the determination of a vested right to mine (Section 13-114). Staff also requests any additional questions and/or revisions you may have with the proposed ordinance. At your direction, staff will make changes and, if your Board desires, re -circulate the proposed ordinance to the Department of Conservation, the County's mine operators, the Surface Mining Aggregate Operations Committee and other stakeholders. In regards to your adoption of the ordinance, SMARA requires that the State Mining and Geology Board certify lead agency mining ordinances as being in accordance with state policy before they become effective (PRC Section 2774.3). If, upon re -circulation of the next draft, comments from the State Mining and Geology Board indicate that the proposed ordinance is in accordance with state policy, staff will schedule, at the earliest feasible date, a second hearing before your Board for adoption of the proposed ordinance. The adopted ordinance will then be sent to the State Mining and Geology Board for their certification. Issue #1: Section 13-110 Public Hearing Process The public hearing process in both the current (Section 13-107) and proposed (Section 13-110) mining ordinance provides a specific intake, review and determination procedure for a mining permit and reclamation plan application. The proposed draft before you presents an alternative process for the final determination of a permit/reclamation plan application. Currently mining applications are considered in noticed public hearings by the Planning Commission, who may approve, approve with conditions, or deny the application. Either the applicant or a member of the public may appeal that determination to the Board of Supervisors. Although the Board hears the appeal de novo, the scope of their consideration is generally refined by the hearing process conducted by the Planning Commission; that is, the Planning Commission hearings may resolve a number of W ❑ Butte County Department of Development Services 0 62 0 Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation 0 v issues such that the Board consideration of an appeal can focus upon any remaining issues. The proposed ordinance provides that the Planning Commission consider an application in at least one (or more if required) noticed public hearing and then make a recommendation to the Board for approval, approval with conditions, or denial. The Board then considers the application in its own noticed public hearings and makes a final decision. Under certain circumstances, the Board's actions can be appealed to the State Mining and Geology Board (e.g., denial of a reclamation plan). There are a number of matters in the ordinance besides applications that require a determination (see discussion below). In considering whether your Board should act on a Planning Commission recommendation rather than an appeal of a determination you may wish to consider who should make the determination and, depending on the process, what the time and cost savings might be. What role should the Planning Commission have regarding determinations for mining permits and reclamation plans? Should that role be consistent for all other mining matters requiring a determination (e.g., lapse of permit, abandonment, amendments, vested rights, etc.)? Discussion Under both Chapter 13 and Chapter 24 of Butte County Code, the Planning Commission currently makes the determination regarding mining permits and use permits unless appealed. Currently, surface mining is allowed with only a mining permit and reclamation plan in the Timber Mountain (TM - requires use permit if "objectionable"), and Timber Preserve Zone (TPZ) zones. For surface mining proposed in the Agriculture (A), Foothill Recreational (FR), Resource -Conservation (RC) or Unclassified (U) zones, a use permit is required in addition to a mining permit and reclamation plan. (Surface mining is not allowed in any other zone.) The Planning Commission determinations for the past five mining permittreclamation plan applications and one enforcement action were each appealed to the Board of Supervisors. Some determinations required three or more Planning Commission hearings. If it is assumed that all or nearly all mining permittreclamation plan applications will be appealed, would the Planning Commission making a recommendation to the Board rather than an appealable determination provide time or cost efficiencies? There are three potential paths to a final determination: (1) the Planning Commission is bypassed and applications are heard only by the Board; (2) the Planning Commission considers the application in at least one noticed public hearing before making its ❑ Butte County Department of Development Services ❑ 63 0 Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation 0 WL recommendation to the Board; and (3) the current process, in which the Planning Commission makes the final determination subject to appeal to the Board. Path 1 would seem to be the most streamlined; however, the critical review function provided by the Planning Commission, in which the whole of a project is presumably examined, would be lost and the entire responsibility for project review would fall to the Board. In comparison with Options 2 and 3, this option would require most of the Board's time. Path 2 would allow the Planning Commission the opportunity to examine and consider testimony regarding a proposed project and make a recommendation based on at least one but as many noticed public hearings as deemed necessary. Their recommendation would not be subject to appeal. A recommendation role could provide savings in time assuming the Planning Commission does not require multiple hearings before making its recommendation. (Alternatively, if the Planning Commission makes its recommendation without adequate hearing, more work could be required by the Board during its hearings). A recommendation by the Planning Commission would also avoid the cost to Development Services for the preparation of an appeal under the County's current fee ordinance as the cost would be borne by the applicant's deposit fee received at the time the application was submitted. Path 3 currently allows the Planning Commission to review and consider testimony /00'1 regarding a proposed project, and also provides application proponents and opponents an ability to appeal its determination. The Department of Development Services (i.e., the County general fund) is currently responsible for the costs of the appeal. Generally some significant matters are resolved so that the appeal considered by the Board is refined to fewer issues. It is important to note that SMARA and this proposed ordinance contains several matters other than the initial approval or denial of a mining permit or reclamation plan for which determinations must be made that might also be subject to appeal: • Section 13-110 Public Hearing (discussed above) • Section 13-111 Lapse of Permit (permit lapses for operations that do not start within five years — see also policy discussion below) • Section 13-112 Idle Mines/Interim Management Plans (idle mine without an interim management plan is declared abandoned — see also policy discussion below) • Section 13-114 Determination of Vested Rights (under specific circumstances, a claim of a vested right to mine must be heard in a public process — see also policy discussion below) • Section 13-117 Amendments (amendments to reclamation plans are subject to approval in a public hearing) (.0.1 0 Butte County Department of Development Services D 64 0 Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation 0 • Section 13-119 Minor Modifications (denials by the Director of Development Services of a minor modification to a mining permit and/or reclamation plan are subject to appeal) • Section 13-120 Enforcement (Order to Comply for a violation to be heard in a noticed public hearing) The attached draft ordinance references the Option 2 path — Planning Commission hears and makes a recommendation to the Board — for each of these matters. While current staff is not aware of any determination having been made in the past 10 years for Sections 13-111, 112, 114, 117 or 119, such may be required in the future. Staff requests the Board's direction regarding Path 1 (no role for Planning Commission), Path 2 (Planning Commission makes a recommendation to the Board that is not subject to appeal) or Path 3 (Planning Commission makes an appealable determination). Issue #2: Section 13-111 Lapse of Permit Section 13-111 in the proposed mining ordinance and Section 13-108 in the current ordinance both provide that the permit for an operation that has not commenced within five years of issuance shall "expire" unless an extension is granted in a public hearing. The proposed ordinance also provides two significant changes from the current ordinance: 1. Unlike the current ordinance, the proposed ordinance provides a procedure for approval of a permit extension beyond the five-year period that is the same as that for the proposed Section 13-110 Public Hearing discussed above: the Planning Commission reviews the extension request in at least one noticed public hearing and makes a recommendation to the Board who then makes the determination. 2. Unlike the current ordinance, the proposed ordinance requires that the Director of Development Services make a determination as to whether or not a permit has lapsed because operations have not commenced within five years of permit approval. The proposed Section 13-111(f) and (g) provide an appeal process for an operator aggrieved by the Director's determination. An operator has objected to the potential for a permit to expire if operations are not begun within five years and an extension is not granted (see Mr. Harrison's remarks, Attachment D). SMARA does not require a permit to expire should an operation not commence within a certain amount of time. Should the new ordinance contain this lapse provision? Discussion 0 Butte County Department of Development Services 0 65 0 Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation 0 SMARA does not contain any requirements regarding the amount of time given for an operation to start — that concern, if any, is within the discretion of the lead agency. (Note that SMARA does contain provisions for idle mines - they must have an interim management plan - but it is unclear whether a mine that has not started production would be considered idle.) Mr. Harrison notes that permitting can be a lengthy, expensive and arduous process. Due to market demand and other financial issues, a permitted operation may not be able to economically begin within five years. (Mr. Harrison also criticizes other aspects of an earlier draft version of Section 13-111 — please see staff responses to those comments in Attachment D.) A capital intensive activity such as surface mining may need more than five years to profitably commence operations; however, the proposed Section 13-111(b), (c) and (d) do provide a process by which an extension may be granted. The proposed Section 13- 111(e), (f) and (g) further provides an appeal process for a determination that a permit has lapsed. The purpose of a lapse provision is to insure that an operation begins within a reasonable amount of time. Without a lapse provision, it is conceivable that a permitted surface mining operation could wait for an undefined amount of time before starting. The conditions and standards under which the permit was considered may significantly change. Staff wishes to avoid a scenario in which a permitted operation waits beyond five years before starting, during which surrounding development or significant changes in the environment may have occurred that would not be consistent with the review originally provided for the approved permit. (For your information, current staff is unaware of any Butte County mining operation having lapsed.) Staff recommends inclusion of the Section 13-111 lapse provision as written because it will avoid the passage of unreasonable amount of time before an operation begins as permitted, while also providing due process for operators who wish to extend their permit or contest a lapse determination. Issue #3: Section 13-112 Idle Mines/Interim Management Plans Consistent with SMARA (PRC Section 2770(h)), Section 13-112 in the proposed ordinance and Section 13-109 in the current ordinance require that an idle mine must also have an interim management plan. SMARA further states that a mine that remains idle for more than a year without an interim management plan "shall be considered abandoned and the operator shall commence and complete reclamation in accordance with the approved reclamation plana (PRC 2770(h)(6). 0 Butte County Department of Development Services 0 66 0 Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation 0 r Section 13-112(1) also provides that the Department of Development Services "shall also consider whether to commence proceedings to revoke the mining permit and use permit, if any, for a surface mining operation which remains idle for over one year after becoming idle as defined in Section 13-103 without obtaining approval of an interim management plan, unless review of an interim management plan is pending." Proceedings to revoke a permit requires consideration of violation of permit conditions, a deterioration of the site that preclude reclamation or creates a threat to public health and safety, and objective evidence of an intent by the operator to abandon the operation. Section 13-112(m) and (n) provide for a hearing process for a proposal to revoke a permit per the Section 13-110: the Planning Commission considers the revocation in at least one noticed public hearing and makes a recommendation to the Board. An operator has objected to a revocation provision based on the lack of an interim management plan. SMARA does not require that a permit be revoked should an operation be idle without an interim management plan. Should the new ordinance contain this permit revocation provision? Discussion For the purposes of SMARA, a mine may be: • Newly permitted but not yet operating; • Active and operating; • Active and reclaiming; • Idle; or • Abandoned. A mine becomes idle when operations are curtailed for a year or more by more than 90 percent of the previous maximum annual mineral production (PRC Section 2727.1). Idle mines require an interim management plan to be put in place within 90 days of the mine becoming idle. (A mine is not "idle" if there is no intent to resume operations. When there is no intent to resume operations, a mine is either reclaiming or abandoned.) An interim management plan is intended to period such that public safety is maintained, reclamation per the approved plan remains plan is considered an amendment to a discretionary approval. (In Butte County, approves interim management plans.) preserve site conditions during the idle permit conditions are complied with and feasible. While an interim management reclamation plan, it does not require the Director of Development Services ❑ Butte County Department of Development Services 0 67 ❑ Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation ❑ W Mr. Harrison notes there is a lack of fairness in the County's ability to declare an operation permitted through a discretionary process as abandoned on the basis of failure to provide a non -discretionary, administratively approved document (e.g., the interim management plan). He also points to case law in which the State Supreme Court "held that vested mining rights can be abandoned (or terminated) only on the occurrence of two factors: (1) actual operator intent to abandon the mine, and (2) an overt act, or failure to act, which implies that the operator no longer claims an interest in the vested right." The current Section 13-112(g) provides that an that an operation that remains idle for over one year after becoming idle without obtaining an interim management plan "shall be considered abandoned and the operator shall commence and complete reclamation in accordance with the approved reclamation plan." It is included because it is consistent with SMARA (PRC Section 2770(h)(6)). (Note also that Section 13-112(h) and (i) provides an appeal .process for an operator aggrieved by a notice of abandonment.) For the purposes of SMARA, "abandoned" relates to a requirement to reclaim, not to the underlying permit. In his letter, Mr. Harrison also objects to a provision (Section 13-112(1) that the County shall commence permit revocation proceedings for a mine that is idle and does not have an interim management plan (or an interim management plan under review): "This ability to terminate an existing mine's right to operate violates controlling legal standards governing the relinquishment of vested mining rights... Nothing in SMARA states or suggests that the failure to timely obtain an IMP can lead to the relinquishment of an underlying vested mining right ... the overarching purpose of the idle mines provisions is to ensure the reclamation of permanently inactive mines, not to affect the underlying use permits or vested rights in any way." Again, SMARA requires that an operation that is idle for a year after it became idle and has not obtained an interim management plan (and has no such plan under review), shall be declared abandoned and the operator must commence and complete reclamation. A proceeding to additionally consider revocation of a permit is not required by SMARA. An ability to revoke a mining permit is included in the proposed ordinance to provide a clear process in the event that an idle mine — without the required interim management plan — deteriorates in a significant way due to neglect and the lack of operator presence at the site. A significant deterioration could involve a change that violates a condition or conditions of permit approval, a change of site conditions such that the approved reclamation plan cannot be realized (for example, slope failure or excessive erosion), or a threat to public safety. To the extent these issues may involve compliance with a permit, staff believes a revocation process is warranted. (Currently staff is aware of one ,••� 0 Butte County Department of Development Services ❑ 68 0 Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation 0 v permitted mine that is not active, does not have an interim management plan, and has site conditions that have deteriorated significantly.) As written, Section 13-112(1) requires that the Director of Development Services consider whether, during the idle period, permit conditions have been violated, the site has degraded such that reclamation is precluded or would be substantially changed, a public safety hazard is present. Additionally, the Director shall consider whether there is objective evidence of intent by the operator to abandon the operation. Section 13-112 (k) and (1) also provide an operator an appeal process per. Section 13-110: Planning Commission makes a recommendation to the Board. Recommendation Staff recommends inclusion of the proposed Section 13-112. An interim management plan is required by SMARA for idle mines so that a potential lack of daily operator presence at a mine will not result in degradation of the site and public safety hazards. Under SMARA and the proposed Section 13-112(8), an interim management plan may be extended for five years beyond its initial five year termination date. As written, Section 13-112(i) is in accord with SMARA and, additionally, Section 13-112 0) and (k) also provide an appeal process for an operator "aggrieved by a notice of abandonment by the Director of Development Services." Staff also recommends inclusion of the Section 13-112(1) for permit revocation proceedings for idle mines without an interim management plan because it provides an enforcement tool in the event permit conditions are significantly violated according to the above -stated criteria. Section 13-112 (m) and (n) also provide an appeal process per Section 13-110 for the revocation proceedings. Issue #4: Section 13-114 Determination of Vested Rights Unlike the current ordinance, the proposed ordinance Section 13-114 provides a public process for the determination of a vested right to mine. Vested rights are defined in Section 13-113. In both the current (Section 13-110) and proposed (Section 13-113(a)) ordinance, in accordance with SMARA, allows a mining operation with a vested right to proceed without a mining and/or use permit. SMARA and the proposed ordinance define a vested right as follows: "A person shall be deemed to have vested rights if, prior to January 1, 1976 [when SMARA became law], he or she has, in good faith and in reliance upon a permit or other authorization, if the permit or other authorization was required, diligently commenced surface mining operations and incurred substantial liabilities for work and materials necessary for the surface mining operations." ❑ Butte County Department of Development Services ❑ 69 0 Planning Division ❑ Amendment Chapter 13, Article Surface Mining and Reclamation 0 v To this definition, the proposed Section 13-113(b) adds: "A `vested right' is the right to conduct a legal nonconforming use of real property if that right existed lawfully before a zoning or other land use restrictions became effective and the use is not in conformity with that restriction when it continues thereafter. A vested mining right, in the surface mining context, may include but shall not be limited to: the area of mine operations, the depth of mine operations, the nature of mining activity, the nature of material extracted, and the quantity of material available for extraction." Does the Board wish to include the Section 13-114 Vested Rights Determination public hearing process? Discussion A vested rights determination process has been included in the proposed ordinance in light of the recent court case, Calvert v. County of Yuba (2006) 145 Cal. App. 0 613 ("Calverf''). (Please see Mr. Harrison's discussion of Calvert in Attachment D.) Briefly, a surface mining operator along the Yuba River asserted and was granted through an administrative process, a vested right to mine 3,400 acres of the Yuba Goldfields, 1,200 acres of which were already mined. As Mr. Harrison states, Yuba "County did not conduct a hearing and provided no advance notice or opportunity to be heard to adjacent landowners." A suit was brought in part on the lack of notice and public hearing for what was argued to be a discretionary — not administrative — decision. On this matter, the court of appeal agreed that a vested right determination involves factual issues that must be settled through interpretation of the evidence and exercise of judgment. Such discretion requires public notice and hearing. The State Mining and Geology Board has adopted a vested right determination process (PRC Section 3950), from which the proposed Section 13-114 derives. PRC Section 3950, however, is not a part of SMARA and neither SMARA nor its implementing regulation contain or require a public hearing process to determine the validity of a claim for a vested right,to mine. As noted above, both the proposed Section 13-113 of this Article and PRC Section 2776 require an operator to show that work was "diligently commenced and substantial liabilities were incurred prior to a use becoming nonconforming." Other findings establishing a vested right include whether operations have been continuous and substantial changes to an operation have been made since a use became nonconforming. Mr. Harrison and others stress that in Calvert the public hearing process for a vested right determination was narrowly construed by the court of appeal and does not apply f40,*N. 0 Butte County Department of Development Services 0 70 0 Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation 0 beyond the specific circumstances related to the so-called Diminishing Asset Doctrine those circumstances. Staff interprets the Calvert decision to require a noticed public hearing in making a vested right determination unless statutorily exempted. In a surface mining context the Diminishing Asset Doctrine holds that the land itself a "diminishing asset;" if a mine cannot expand over time into non -excavated area the operation cannot continue. This is in contrast to other conditional uses (e.g., a convenience store, a dog kennel) in which the land is incidental to the use and, normally, expansion of that use when nonconforming is not allowed without revision of the permit. However, the ability to expand a mine is not without limits; an operator must demonstrate "objective evidence" of intent to mine in the contemplated expansion area. Perhaps the most critical question with inclusion of a vested right determination process is whether it will be retroactively applied and required for all mines in the county that are operating under a vested right. (One operator of a vested mine expressed strong reservations of having their operation undergo a public hearing process to determine its status. Mr. Harrison also expresses concern that historically vested operations that may have received "less formal" determinations or recognition of vested status in the past may have to undergo a public hearing process.) Note that the proposed Section 13-114(b) provides an exemption to a vested rights determination process: "Any person who has received a final determination from the county prior to the effective date of this section confirming a vested right to conduct surface mining operations pursuant to Section 13-113 of this Article shall not be required to file a Claim of Vested Right provided the scope of said operation has not expanded beyond that for which there was objective evidence of an intent to mine at the time of said final determination." Evidence of a final determination could include approval of a reclamation plan (which may reference the anticipated mine area) or a conditional use permit for an accessory use (such as a batch plant, which also reference a mine area). Staff is aware of three current mines operating as pre-SMARA vested mines and an additional mine that received a written determination from a past Director that but is not currently operating. The three operating mines have reclamation plans, two have received conditional use permits, and one received written recognition in 1973 of its pre- existing status such that it would not require a conditional use permit by its then new zoning designation. Such operations would not be required to undergo a vested right determination unless they sought to expand beyond the area contemplated in that written determination, reclamation plans and/or use permits. Note that staff is not aware of any unpermitted but active mine operation at present. ❑ Butte County Department of Development Services ❑ 71 0 Planning Division 0 Amendment Chapter 13, Article Surface Mining and Reclamation 0 Although staff believes it reasonable (outside of the exemptions in Section 13-114(b)}, to consider a determination regarding a vested right to be a discretionary action requiring public notice and hearing, the scope of that discretion is narrower than that, for example, than the discretion to be exercised for a new mining permit. Consideration of a new permit involves a wide variety of issues. Determination of a vested right is focused upon whether the mining use lawfully existed at the time it became nonconforming and whether that operation would expand or has expanded beyond that for which there was objective evidence of an intent to mine. As Mr. Harrison points out, in the Calvert decision, the court of appeal references its requirement for public notice and hearing within the context of the operator's expansion of a vested right per the diminishing asset doctrine. As such, the Calvert decision may be construed as constraining all public hearings for vested right determinations to the same circumstances. Expansion of a mine's footprint under the diminishing asset doctrine is not, however, the only way a substantial change in a non -conforming operation might occur. For example, it may be necessary to determine whether a mine is within the scope of its vested mine right to dig far deeper even though the footprint is not expanding. It may be necessary to determine whether a mine is within the scope of its vested right if operations could intensify within the same footprint such that substantial noise, dust or traffic impacts occur. Recommendation Although SMARA does not require a public vested rights determination process, Staff recommends inclusion of the proposed Section 13-114 vested rights determination process as written for the following reasons: 1. It ensures that the County has oversight of unpermitted, nonconforming mines (should they occur) that contemplate substantial changes. 2. It provides an operator and the public notice and a right to be heard in a hearing. 3. It provides affirmative notice to operators of unpermitted, nonconforming operations that a public hearing is required should substantial changes be contemplated. Your Board may wish to forgo inclusion of a vested rights determination process or you may wish to consider Mr. Harrison's suggestion that a determination process be included in the ordinance as an optional process that would "provide a forum for resolution of any disputes that the mine operator could not resolve directly with the Planning Department." ❑ Butte County Department of Development Services 0 72 ❑ Planning Division 11 Amendment Chapter 13, Article Surface Mining and Reclamation 0 Requested Action Provide direction to staff regarding these four issues and any other matters as desired. If you have any questions, please do not hesitate to contact Associate Planner Chris Thomas (530-538-6706) or Planning Manager Chuck Thistlethwaite (530-538-6572). Sincer 1� Pe alarco. Assistant Director FOR: TIM SNELLINGS. DIRECTOR Attachments: A: Current Butte County Mining Ordinance, Butte County Code, Chapter 13, Article II, Surface Minino and Reclamation B: Proposed Amended Mining Ordinance, January 27, 2009 , I a6 C: Response to Comments from the Department of Conservation D: Response to Comments from Mark Harrison _ +,+ +: E: Response to Comments from the Butte Environmental Council F. December 11, 2008 Planning Commission Staff Report G. Surface Mining in Butte County S. kyi � Z'�11T4Ed��`d � t 5ffi 4 9 CdJ 6'A %e p#'0'E 1 !d JY � R E,i '^ E } y 3.^F 4' E T 'Ei EV s di 7�L.t E9 3 T d. d dr �• t� q zt 'r�! d 41,..�d X. k vR I `� 1 T .�'. k -�'=3 % � f ii E` Oki 4E"3 $ t s e z � - —�-• c Sg. � � �, �. � E - Butte County Department of Development Services ". - w'"~t' Planning Division -' Amendment Chapter 13.. Article Surface tinning and Reclamation F Butte County Mine Operator Meeting May 28, 2009 Tahoe Room, 202 Mira Loma Oroville, CA Summary of Comments and Staff Responses Section 1: Mark Harrison wanted to know that the mining ordinance did not pertain to regulation of grading. It does not — the County regulates grading through Article 1 of Chapter 13. Sec. 13-102. Incorporation by Reference: Mark Harrison noted that although SMARA is incorporated in this section, he believes there are conflicts between the proposed ordinance and SMARA in later sections. See discussion below. Sec. 13-103. Definitions: Travis Deem suggested having a definition of "abandoned" o "Abandoned" is not defined in SMARA. Staff believes a County definition of abandoned — ifdifferent from its idle mines context in SMARA — could lead to confusion; a definition is therefore not provided. Mark Harrison wanted to know more about the jurisdiction of the Committee; they have no decision-making power, only to review and advise the BOS. Pete Dwelley suggested that an applicant not be held up should the Committee not be able to meet — ordinance should have a provision that application processing will continue even if Committee does not meet. o The Surface Mining Aggregate Operations was created by a specific resolution providing that the Committee "advise" the Board. Staff notes that at the April 21, 2009 hearing the Board raised questions regarding the Committee's role. Although the definition in the proposed ordinance is unchanged, staff will raise the issue of the Committee's role again in the upcoming hearings with the Committee, Planning Commission and Board. o In regards to an inability in scheduling a meeting with the Committee for application review, Section 13-106 Application Review Procedure has extended the time for scheduling said meeting from 30 to 60 days. See also the additional text at the end of Section 13-106 Application Review Procedure: "Application review by the Planning Division shall not be delayed by an inability to schedule a meeting with the Committee. " For "Minor Modification," Mark Harrison asks that the term "substantial change' be stricken, reasoning that if a change is not minor it therefore requires an amendment to the reclamation plan. Staff explained that "substantial change" is intended to address changes under the permit whereas "substantial deviation," per SMARA, refers only to the reclamation plan. Minor modification, however, can refer to either the permit or the reclamation plan. See changes to (2) and (3). ■ Butte County Department of Development Services ■ ■ Responses to Operator Comments May 28, 2009 to Draft Butte County Mining Ordinance ■ 74 it -1- �t o Staff believes that inclusion of separate definitions for substantial "change " and "deviation " — the former referring to the permit, the latter to the reclamation plan —provides a useful distinction between the two entitlements and allows the County to provide criteria for when an operational change may require an amendment to the permit. o (2): added "to the mining permit" before "as defined in this section" o (3): substituted "deviation "for "change " • For "Special Status Species and Plant Communities," Mark Harrison noted that SMARA contained no such definition or requirement for one and asked if the draft sought to expand the species considered beyond those ordinarily considered by CEQA. Travis Deem thought the text "and species that are considered sufficiently rare by the scientific community to qualify for such listing" was too open-ended. o Inclusion of the term is intended to provide up front notice to an applicant that the information will be required for adequate CEQA review; there is no intent to account for plant/wildlife species beyond those that would be considered in CEQA review. See changes at definition for "Special Status Species and Plant Communities" and 13-105(a)(2). o Staff has modified the definition to be less open to interpretation by striking "other regulations, and species that are considered sufficiently rare by the scientific community to qual fy for such listing. These species " from the definition. o See also change to 13-105(a)(2) where "subject to consideration under the California Environmental Quality Act" was inserted at line 4 to clam the scope of special -status species considered. Sec. 13-104. Scope • Mark Harrison noted that (a)(2) differs from SMARA. o Passage has been revised to be consistent with PRC 2714(b). Sec. 13-105. Permit and Reclamation Plan Requirement General discussion/explanation regarding zones that allow mining with a use permit and mining permit and the two zones that allow mining with a mining permit only. Staff noted that revising the zoning code to do away with use permits for mining was beyond the scope of revising the mining ordinance. o (a)(2): add "subject to consideration under the California Environmental Quality Act" to limit species considered. o (a)(9): add "on and" to include the type of mineral processing both on and off-site in the application. Sec. 13-106. Application Review Procedure ■ Butte County Department of Development Services ■ ■ Responses to Operator Comments May 28, 2009 to Draft Butte County Mining Ordinance ■ 75 -2- Questions regarding Committee's role in application review and whether that review would be delayed if it was not possible to convene a Committee meeting. o In paragraph 2 change "thirty " to "sixty " and, at the end of paragraph 2, add.- "Application review by the Planning Division shall not be delayed by an inability to schedule a meeting with the Committee. " o Insert "and/or provide notice, as required" after "and financial assurance cost estimate " in line one, and add "Department of Conservation " to the list of agencies to be notified of an application. Sec. 13-108. Standards for Reclamation (b)(18): Travis Deem pointed out that it is impossible to estimate later phasing for a long -life operation. o Agreed. Strike (18) as requirements for financial assurances and estimates are covered in Sec. 13-109 Financial Assurance. (c): Travis Deem and Mark Harrison ask for more flexibility and clarity in regards to phasing. o Although desirable as a means to minimize the overall disturbance to the landscape at any one time, staff recognizes that phased reclamation is not always feasible. Substitute `feasible "for 'possible. " To avoid confusion, strike: "Reclamation may be done on an annual basis, in stages compatible with continuing operations, or on completion of all excavation, removal, or fill, as approved by the county. It Sec. 13-109. Financial Assurance Mark Harrison and Travis Deem point out that SMAR.A does not require an engineer or licensed professional to review cost estimates for either an operator or the county. o Agreed In (b) substitute "or "for "and": "other similarly licensed or qualified professionals retained by the operator.R.' o In (f) substitute "or "for "and": "other similarly licensed or qualified professionals retained by the operator. " Sec. 13-110. Public Hearing Mark Harrison stated that the process outlined in Section 13-110(c) — Board of Supervisors certifies to the DOC that the reclamation plan, financial assurance and/or amendment complies with State law — was in error; the typical practice is for staff to simply forward these documents to the DOC. o Staff confirmed that routing a certified reclamation plan and FA to DOC is consistent with PRC 2774(c): "The lead agency shall certify to the director that the reclamation plan is in compliance with the applicable requirements of this chapter and Article 9 (commencing with Section 3500) of Chapter 8 of ■ Butte County Department of Development Services ■ ■ Responses to Operator Comments May 28, 2009 to Draft Butte County Mining Ordinance ■ 7L, -3- V /00%\ /"'"'ll\ Division 2 of Title 14 of the California Code of Regulations and the lead agency's mining ordinance in effect at the time that the reclamation plan is submitted to the director for review. " Staff believes that certification of a reclamation plan must be done by the hearing body. In regards to which hearing body makes determinations, the operators — with one exception - seemed to favor bypassing the Planning Commission entirely and having only the Board make determinations. All seemed to agree that the Planning Commission making a recommendation to the Board was not a good idea. o Staff will continue to request direction regarding how determinations are to be made in the upcoming hearings with the Committee and the Planning Commission. Sec. 13-111. Lapse of Permit/Commencement Status Reports Mark Harrison opposed the lapse provision and noted that commencement should not be based on production (which most owners report as sales) because many costly activities may occur prior to or in preparation of production (sales). What constitutes commencement? Mr. Harrison suggests using the PRC 2735 definition of surface mining (e.g., surface disturbances commonly understood as mining operations, in addition to more minimally disturbing activities as prospecting and exploration); also `diligently pursing permits, land disturbance, filing of mining -related reports, payment of taxes reflecting assessor's valuation of the property for mining'. Both Mark Harrison and Travis Deem request a more relaxed definition of an active mine that reflects episodic reality of mine economics and operations. o The purpose of the lapse provision is to avoid scenarios in which disturbances permitted at a certain time and under a specific project description/environmental review are deferred to some unknown time in the future. Although a mining permit (like a conditional use permit) runs with the land, it is issued with an expectation that the permitted activities will be engaged within a reasonable amount of time — analysis of a known and stable project description may be defeated if the anticipated disturbances may be deferred to an unknown time in the future. o To determine if a permit has lapsed, there needs to be an understanding of when an operation has commenced (e.g., the permit has been perfected). Staff acknowledges that the precise point at which a mining operation commences depends upon circumstances and resists a standard, on -size - fits -all definition. Accepting the PRC 2735 definition could result in exploratory activities constituting a commenced operation and the actual anticipated disturbance may be deferred for years — or decades — into the future. ■ Butte County Department of Development Services ■ ■ Responses to Operator Comments May 28, 2009 to Draft Butte County Mining Ordinance ■ 77 -4- o As proposed, Section 13-111(a)(3) links commencement of the mining operation with its status in the annual production report ARRC -2 as declared by the operator: if "newly permitted" is declared, the operation has not commenced and a commencement status report is required. If "active " is declared, the operation has commenced. The first time "active " is declared, a final commencement status report is required specifying the nature and date of the commencement activities and no further reports are required. The commencement status reports will provide an annual record of activities undertaken to begin production and evidence for an extension request or a consideration of whether or not a permit has lapsed o See changes to 13-I11(c) and (d) limiting the hearings for consideration of an extension request. 13-I11(b) provides that if active mining operations have not commenced within five years, the operator may request a five year extension. The extension is considered first by the Planning Commission in a hearing that is limited solely to why the operation has not commenced — the hearing cannot be used as a venue to consider other matters that may be related to opposition to the mining operation. As currently written, the Planning Commission makes a recommendation to the Board, who similarly makes its determination to approve or deny the extension request based solely on why the operation has not been able to start. • A question arose as to when the five-year clock should start — with the issuance of the permit or, perhaps, with the issuance of any of the other permits, opinions or agreements that may be required by other agencies before operations can begin? Operators pointed out that it can take years to obtain, for example, a Section 404 Clean Water Act permit. o It can take more time to obtain other regulatory entitlements than a permit from the County; however, Section 13-111(b) allows an operator to request, subject to a hearing limited to consideration of why the operation has not started, an additional 5 -year extension, effectively allowing ten years for an operation to commence. Inability to obtain other permits would presumably be a legitimate reason for production not beginning and the granting of an extension. Staff believes it reasonable to expect a mining operation to obtain all necessary entitlements and commence within ten years. Sec. 13-112. Idle Mines/Interim Management Plans • Mark Harrison asks to strike 0) through (n). Travis Deem asks for a warning to an operator regarding a notice of abandonment to opportunity to correct. See suggested change in 13-112(1). o In comments submitted prior to the April 21 Board hearing, Mr. Harrison pointed out that nothing in SAARA requires or suggests that a lead agency revoke a permit because an idle operation does not have an 114� ■ Butte County Department of Development Services ■ ■ Responses to Operator Comments May 28, 2009 to Draft Butte County Mining Ordinance ■ 7 Q -5- v interim management plan as required by PRC 2770(h). As written, 13- 112(1) states that the Director of Development services may consider revocation of a permit (through the Section 121(b) enforcement process) for a mine deemed abandoned pursuant to PRC 2770(h)(6). Incases where a mine is unsupervised, may present hazards to the public and/or the environment, and meets constitutional criteria for abandonment, staff' believes consideration of permit revocation through a public hearing process may be warranted. o Section 13-1126) through (n) have been stricken and any consideration of the permit status is deferred to the Notice of Violationl0rder to Comply process in Section 121(b). 13-112(1) now states: "(i) Unless review of an interim management plan is pending before the Director of Development Services, a surface mining operation which remains idle for over one year after becoming idle as defined in Section 13-103, without obtaining approval of an interim management plan, shall be considered abandoned and the Director of Development Services shall give notice of abandonment to the operator and the operator shall commence and complete reclamation in accordance with the approved Reclamation Plan. The Director of Development services may also consider whether to commence proceedings to revoke the permit pursuant to Section 121(b) of this Article. " o In regards to a warning that allows an operator to correct (i.e., prepare an IMP), (i) follows PRC 2770(h)(6). Block VI of the annual inspection report MRRC-I includes declaration of a mine's operational status. If it is idle, and an IMP has not been prepared, the annual inspection report should note that one is required. Sec. 13-1.14. Determination of Vested Rights • Mark Harrison and Mathews representatives objected to 13-114(c) onward, citing the narrow circumstances of the Calvert decision and the inadequate State Mining and Geology Board process from which the draft ordinance's approach was derived. Travis Deem suggested making the language less prescriptive, removing "shall" and "including." o While staff continues to recommend inclusion of an identified determination process for the reasons discussed previously in the April 21, 2009 Board of Supervisors' report, we agree that the process should be less prescriptive than that presented in the April 21, 2009 draft and to the County mine operators at their May 28, 2009 meeting. Section 13-114 has thus been revised, with subsection (c) (5) providing guidance for the documentation that may (rather than "shall') be submitted in support a claim for a vested right. The rational for including a determination process will continue to be an item for discussion at the upcoming Committee and Planning Commission hearings. ■ Butte County Department of Development Services ■ ■ Responses to Operator Comments May 28, 2009 to Draft Butte County Mining Ordinance ■ '79 -6- v Sec. 13-115. Public Records • Staff would like the operator to identify proprietary information. The following change was made to Section 13-115: "Reclamation plans, reports, financial assurances, financial assurance cost estimates, applications, and other documents submitted pursuant to this Article are public records, unless it can be demonstrated to the satisfaction of the County that the release of such information, or part thereof, would reveal production, reserves or rate of depletion entitled to protection as proprietary information. The applicant shall have the r4gk to identify what, in his opinion, is proprietary information at the time said information is submitted. The Planning Division shall its maintain proprietary information as a separate part of each application and file. " Sec. 13-118. Transferability Staff wants to encourage new owners of property with a mining permit to notify the County of the change in ownership. The following sentence has been added at the end of Section 13-118: "Any successor shall notify the Planning Division and the Department of Conservation ofny change in ownership of 'property that has an associated minim permit, use permit for mining or reclamation plan. " Sec. 13-119. Minor Modifications • Mark Harrison asked that notice be given that a minor modification could also be exempt from the California Environmental Quality Act. o A minor modification cannot constitute a significant effect upon the environment. It could also be categorically exempt from CEQA for various reasons and the appropriate Notice of Exemption would be prepared. o The following text was added to 13-119(c)(3): "3. is not subject to or is exempt from the California Environmental Quality Act. " 13-120. Completion of Reclamation and Mining • No objections, but some operator puzzlement about inclusion of this section. The section is included because staff wishes to clearly acknowledge the permit status as expired upon certification that reclamation is complete and financial assurances are released. -14 . ■ Butte County Department of Development Services ■ ■ Responses to Operator Comments May 28, 2009 to Draft Butte County Mining Ordinance ■ Q O -7- v Sec. 13-121. Enforcement Mark Harrison believed (b)(1) is unconstitutional because there is no due process afforded an operator. Pete Calarco pointed out that providing a hearing for an unpermitted operator affords him the same rights as someone who is permitted — undermining the concept of a level playing field for all mining operations. Discussion about abating a nuisance (Chapter 41) or using a NOV (Chapter 13) approach — staff felt Chapter 41 was not adequate to address an unpermitted mine operation that required a permit. Sec. 13-122. Mineral Resource Protection (a) Mineral resource areas that have been classified by the State Department of Conservation's California Geological Survey, designated by the State Mining and Geology Board or by the Butte County General Plan, as well as existing surface mining operations that remain in compliance with the provisions of this Article, shall be protected from intrusion by incompatible land uses that may impede or preclude mineral extraction or processing, to the extent possible for consistency with the Butte County General Plan. How are lands containing mineral resources to be protected from incompatible uses? ■ Butte County Department of Development Services ■ ■ Responses to Operator Comments May 28, 2009 to Draft Butte County Mining Ordinance ■ 81 -8- Ordinance No. AN ORDINANCE REPEALING AND RE-ENACTING ARTICLE H OF CHAPTER 13, OF THE BUTTE COUNTY CODE REGARDING SURFACE MINING AND RECLAMATION The Board of Supervisors of the County of Butte ordains as follows: Section 1. Article II, entitled "Surface Mining and Reclamation," of Chapter 13, entitled "Grading and Mining," of the Butte County Code, is hereby repealed. Section 2. Article II is added to Chapter 13 of the Butte County Code to read as follows: "Article H. Surface Mining and Reclamation. Section 13-101. Purpose and Intent. (a) The purpose of this Article is to comply with and implement the provisions of the i"ss*N, California Surface Mining and Reclamation Act of 1975 as amended (the "Act", Public Resources Code Section 2710 et seq.), Public Resources Code ("PRC") Section 2207 (relating to annual reporting requirements), and State Mining and Geology Board regulations for surface mining and reclamation practice (California Code of Regulations, Title 14, Division 2, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq.) and Article 9 (Section 3700 et seq)., hereinafter referred to as "State regulations"). Nothing in this Article is intended to modify or abridge the provisions of that Act. This Article shall be interpreted in a manner consistent with that Act. The provisions of this Article shall be liberally construed to effectuate the purposes of it and of the Act, and they shall be applied in a manner that ensures their constitutionality. (b) The Board of Supervisors finds that that surface mining takes place in diverse areas where the geologic, topographic, climatic, biological, and social conditions are significantly different and that reclamation operations and the specifications therefor may vary accordingly. (c) The Board of Supervisors further finds that the extraction of minerals is essential to the continued economic well-being of the county and to the needs of society, and that reclamation of mined lands is necessary to prevent or minimize adverse effects on the environment and to protect the public health and safety. (d) It is the purpose and intent of the Board of Supervisors to create and maintain an effective and comprehensive surface mining and reclamation policy with regulation of surface mining operations so as to assure that: (1) Adverse environmental effects are prevented or minimized and mined lands are reclaimed to a usable condition that is readily adaptable for alternative land use; (2) The production and conservation of minerals are encouraged, while giving consideration to values relating to recreation, watershed, wildlife, range, and forage and aesthetic ■Butte County Department of Development Services- Q 2 ■March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinances C7 enjoyment; (3) Residual hazards to the public health and safety are eliminated; (4) The reclamation of mined lands as provided in this Article will permit the continued mining of minerals and will provide for the protection and subsequent beneficial use of the mined and reclaimed land. (e) This Article shall be reviewed annually and revised, as necessary, in order to ensure that it is in accordance with the State policy for mined lands reclamation and to encourage the mining industry of Butte County. Sec. 13-102. Incorporation by Reference The provisions of the Surface Mining and Reclamation Act (SMARA), Public Resources Code Section 2710, et seq., Public Resources Code Section 2207, and State regulations 14 CCR, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq) and Article 9 (Section 3700 et seq.), as those provisions and regulations may be amended from time to time, are made a part of this Article by reference with the same force and effect as if the provisions therein were specifically and fully set out herein, excepting that when the provisions of this Article are more restrictive than correlative State provisions, this Article shall prevail. Sec. 13-103. Definitions. For the purposes of this Article, the following words and phrases shall have the meanings respectively ascribed to them by this section: "Area of Regional Significance" means an area or location designated by the State Mining and Geology Board pursuant to PRC Section 2790 which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in a particular region of the State within which the minerals are located and which, if prematurely developed for alternate incompatible land uses, could result in the premature loss of minerals that are of more than local significance. "Area of Statewide Significance" means an area designated by the State Mining and Geology Board pursuant to PRC Section 2790 which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in the state and which, if prematurely developed for alternate incompatible land uses, could result in the permanent loss of minerals that are of more than local or regional significance. "Borrow pits" means excavations created by the surface mining of rock, unconsolidated geologic deposits or soil to provide material (borrow) for fill elsewhere. "Committee" means the five -member Surface Mining Aggregate Operations Committee created by Resolution 84-197 as subsequently amended by Resolution 99-101 or future resolutions. The Committee's purpose is to advise the Board of Supervisors on all matters pertaining to surface mining including, but not limited to, permit and reclamation plan 400*� applications, financial assurances, and mining operation compliance with this Article and the Surface Mining and Reclamation Act. ■Butte County Department of Development Services- Q r,� •March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinances v �7 "Exploration" or "prospecting" means the search for minerals by geological, geophysical, geochemical or other techniques, including, but not limited to, sampling, assaying, drilling, or any surface or underground works needed to determine the type, extent or quality of the minerals present. "Financial Assurance" means the financial guarantee provided by the operator to assure the reclamation of all mined lands in the event of default by the operator. Financial assurances are limited to the following forms per Section 2773.1 of the Public Resources Code: (1) Surety Bonds; (2) Irrevocable letters of credit; (3) Trust funds; and (4) Other forms of financial assurances specified by the State Board pursuant to Section 2773.1(e). "Idle" means to curtail for a period of one year or more surface mining operations by more than 90 percent of the operation's previous maximum annual mineral production, with the intent to resume those surface mining operations at a future date. "Incompatible Land Uses" means land uses inherently incompatible with mining and/or that require public or private investment in structures, land improvements, and landscaping and that may prevent mining because of the greater economic value of the land and its improvements. Examples of such uses may include, but shall not be limited to, high density residential, low1 density residential with high unit value, public facilities, geographically limited but impact intensive industrial, and commercial. "Mined Lands" includes the surface, subsurface and ground water of an area in which surface mining operations will be, are being, or have been conducted, including private ways and roads appurtenant to any such area, land excavations, workings, mining waste, and areas in which structures, facilities, equipment, machines, tools, or other materials or property which result from, or are used in, surface mining operations, are located. "Minerals" means any naturally occurring chemical element or compound, or groups of elements and compounds, formed from inorganic processes and organic substances, including, but not limited to, sand, gravel, aggregate, soil, landscape rock, coal, peat and bituminous rock, but excluding geothermal resources, natural gas and petroleum. "Mining Waste" includes the residual of soil, rock, mineral, liquid, vegetation, equipment, machines, tools or other materials or property directly resulting from, or displaced by, surface mining operations. "Minor modification" means a modification to o ehange surface mining permit and/or reclamation plan that does not result in a substantial change in the nature of the use or create new significant impacts. , as defined in this seetion, in ' , or a substantial deviation ftem &e approved melameAien plan as defined by 14 GGR 3502(d) and whi rExamples of minor modifications shall include, but are not limited to, the following: (1 ) xpansion of the depth of t eetextraction by -Butte County Department of Development Services■ Q •March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinance■ v`t not more than ten percent efthe existing (2) Dees net result in a substantial , as defined in this seWen, xpansion of the area of disturbance by not more than ten ems; (3) Does net result in a substantial change, as defined in this serofien, minor internal operational changes in order to achieve efficiencies in energy use; (4) Does not result in ehanges that weald substantial!), , as defined in this Seefien, the appreved and use efthe site as es"lished in the rvelainatien minor operational changes to address market fluctuations; (5) minor recontouring of final topography effecting no more than ten percent of the site, provided that slope stability is maintained and substantiated; (6) minor modification or addition of site access including new on-site roads and encroachments directly from the site to a public road, but not including new off-site roads; (7) minor substitution in the reclamation plan such as a substitution in the we and/or number of plant species, minor change in topsoil treatment, etc., provided it does not substantially alter the intended end-use described in the approved reclamation plan; (8) minor technological or administrative changes in methods used to achieve reclamation; (9) minor modifications to measures necessary to ensure or maintain public safety (e.g_ fences, gges, signs, or hazard removal), provided such measures do not substantially alter the intended end-use described in the approved reclamation plan; (10) minor modifications to a previously approved phasing plan: and (11) minor modifications to comply with the requirements of other public agencies, provided the requirements are not inconsistent with the approved conditional usepermit. "Operator" means any person who is engaged in surface mining operations, himself or herself, or who contracts with others to conduct operations on his or her behalf, except a person who is engaged in surface mining operations as an employee with wages as his or her sole compensation. "Overburden" means soil, rock or other materials that lie above a natural mineral deposit or in between deposits, before or after their removal by surface mining operations. "Permit" means any authorization from, or approval by, the county, the absence of which would preclude surface mining operations. "Person" means any individual, firm, association, corporation, organization or partnership, or any city, county, district, or the state or any department or agency thereof. "Reclamation" means the combined process of land treatment that minimizes water degradation, air pollution, damage to aquatic or wildlife habitat, flooding, erosion and other adverse effects from surface mining operations, including adverse surface effects incidental to /001� underground mines, so that mined lands are reclaimed to a usable condition which is readily adaptable for alternate land uses and create no danger to public health or safety. The process -Butte County Department of Development Services■ vQ 5 ■March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinances may extend to affected lands surrounding mined lands, and may require backfilling, grading, resoiling, revegetation, soil compaction, stabilization or other measures. "Reclamation Plan" means the plan required by the Act, as amended, and meeting all the requirements of Sections 2772 and 2773 of the Public Resources Code, state administrative guidelines and regulations adopted pursuant thereto, including, but not limited to, State regulations 14 CCR 3500-3505 and 3700-3713, and ordinances and resolutions of the county adopted in accordance therewith. "Special -Status Species" are those species that are legally protected under the Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. Section 1531 et seq.), the California Endangered Species Act (CESA) (Cal. Fish & Game Code Section 2050 et seq.), and other regulations as may be applicab p. --saffild speeiesthat "State Board" means the State Mining and Geology Board, in the Department of Conservation, State of California. "State Geologist" means the individual holding office as structured in Section 677 of Article 3, Chapter 2 of Division 1 of the Public Resources Code. (00,111) "Stream bed skimming" means excavation of sand and gravel from streambed deposits above the mean summer water level or stream bottom, whichever is higher. "Substantial Deviation" shall mean a substantial deviation from a reclamation plan, as defined in 14 CCR 3502(d). "Surface Mining Operations" means all, or any part of, the process involved in the mining of minerals on mined lands by removing overburden and mining directly from the mineral deposits, open -pit mining of minerals naturally exposed, mining by the auger method, dredging and quarrying, borrow pitting, stream bed skimming, and segregation or stock -piling of mined materials (and recovery of the same), or surface work incident to an underground mine. Surface mining operations shall include, but are not limited to: Butte County Department of Development Services■ Q G ■March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinances v V (!)is not - i edifleatien as defined in this seetien; or- distur-banee, depth, mte ef emmetien, hours and days of epefMien, removal ef3vegewien, removal ef > > and sethae_ks frefn pFopeAy lines, reads, water- eshafmels and Wier- features. "Substantial Deviation" shall mean a substantial deviation from a reclamation plan, as defined in 14 CCR 3502(d). "Surface Mining Operations" means all, or any part of, the process involved in the mining of minerals on mined lands by removing overburden and mining directly from the mineral deposits, open -pit mining of minerals naturally exposed, mining by the auger method, dredging and quarrying, borrow pitting, stream bed skimming, and segregation or stock -piling of mined materials (and recovery of the same), or surface work incident to an underground mine. Surface mining operations shall include, but are not limited to: Butte County Department of Development Services■ Q G ■March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinances v V (1) In-place distillation, retorting or leaching; (2) The production and disposal of mining waste; (3) Prospecting and exploratory activities. Sec. 13-104. Scope. (a) The provisions of this Article shall apply to the unincorporated areas of Butte County. (b) The provisions of this Article are not applicable to: (1) Excavations or grading conducted for farming or the immediate excavation or grading of lands affected by a flood or natural disaster for the purpose of restoring those lands to their prior condition; (2) Onsite excavation and onsite earthmoving activities which are an integral and necessary part of a construction project and that are undertaken to prepare a site for construction of structures, landscaping, or other land improvements associated with those structures, including the related excavation, grading, compaction, or the creation of fills, road cuts, and embankments, whether or not surplus materials are exported from the site, subject to all of the following conditions: a. All required permits for the construction, landscaping, or related land improvements have been approved by a public agency in accordance with applicable provisions of state law and locally adopted plans and ordinances, including, but not limited to, the California Environmental Quality Act ("CEQA"), Public Resources Code Section 21000 et seq., and b. The lead agencies approval of the construction project included consideration of the on-site excavation and on-site earthmoving activities pursuant to the California Environmental Quality Act "CEQA" ), Public Resources Code Section 21000 et seq., and a:c. The approved construction project is consistent with the Butte County General Plan and Zoning Ordinance (Article II of Chapter 24 of the Butte County Code), and •, and surplus materials shall not be exported from the site unless and until actual construction work has commenced and shall cease if it is determined that construction activities have terminated, have been indefinitely suspended, or are no longer being actively pursued.dw (3) Operation of a plant site used to process mineral materials provided that: a. the plant and associated stockpiles, equipment and structures are on property designated for industrial or commercial uses by the Butte County General Plan and Zoning Ordinance, b. there is no onsite extraction of minerals, and c. any onsite areas disturbed by mining activities after January 1, 1976, have been fully reclaimed pursuant to an approved Reclamation Plan; (4) Prospecting for, or the extraction of, minerals for commercial purposes where the ■Butte County Department of Development Services■ Q 7 ■March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinances o removal of overburden or mineral product totals less than one thousand (1,000) cubic yards in any one location or on any one parcel of real property, and the total surface area disturbed is less than one acre; (5) Surface mining operations that are required by federal law in order to protect a mining claim, if such operations are conducted solely for that purpose; (6) Such other surface mining operations that the county determines to be of an infrequent nature, and which involve only minor surface disturbances and are categorically identified by the State Mining and Geology Board pursuant to Sections 2714 (f) and 2758(c) of the Public Resources Code; (7) Emergency excavations or grading conducted by the Department of Water Resources or the Reclamation Board for the purpose of averting, alleviating, repairing, or restoring damage to property due to imminent or recent floods, disasters, or other emergencies; (8) Excavations or grading for the exclusive purpose of obtaining materials for roadbed construction and maintenance conducted in connection with timber operations and forest management on land owned by the same entity, provided such activities are conducted in compliance with the provisions and restrictions set forth in Public Resources Code Section 2714 0); (9) Excavations, grading, or other earthmoving activities in an oil or gas fleld that are integral to, and necessary for, ongoing operations for the extraction of oil or gas that comply with the provisions and restrictions set forth in Public Resources Code Section 2714 (k); (10) Reclamation of lands mined prior to, but not after, January 1, 1976; (11) Surface mining operations conducted pursuant to vested rights obtained prior to I�1 January 1, 1976, except as otherwise provided in Section 13-113. (c) Where an activity is granted an exception to surface mining and reclamation regulations, it may still be subject to other federal, state or local regulations, and permit and review requirements. Sec. 13-105. Permit and Reclamation Plan Requirement. (a) Application. Except as provided in Section 2776, Public Resources Code, and sections 13-104 and 13-113 of this Article, no person shall conduct surface mining operations unless a mining permit, reclamation plan, and financial assurance have first been approved by the county pursuant to this Article and, if required by the applicable zoning regulations, a use permit for mining has been approved pursuant to Chapter 24 of this Code. Any person who proposes to engage in surface mining operations as defined in this Article, shall submit an application for a mining permit, reclamation plan, and a use permit (if the zone requires) to the county Department of Development Services, Planning Division. The application shall be on a form approved by the Director of Development Services and furnished by the county and shall be full and complete, containing all information required by the Act and this Article, as well as a detailed project report, a reclamation plan pursuant to Section 13-108 of this Article, an estimate of financial assurance, as required by Section 13-109 of this Article, and any additional information required by the Planning Division to facilitate an expeditious and fair evaluation of the proposed operations, including but not limited to the following: (1) A description of the proposed project's regional environmental setting; (2) A biological resources assessment of the parcels containing the proposed -Butte County Department of Development Services■ Q Q March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinances v C� maximum area of disturbance, to be conducted by a qualified biologist, describing existing plant communities, wildlife, and the occurrence of, or the potential for occurrence of, special - status plant and wildlife species and plant communities and their relationship to the regional environmental setting; (3) The proposed type and maximum quantity of material to be extracted; (4) The proposed dates for the initiation and termination of mining operations; (5) The maximum proposed rate of extraction; (6) The proposed method of extraction; (7) The maximum rate of export of material from the site; (8) The type of material to be exported; (9) The type of processing that will occur on-site and off-site; (10) Assurances that all off-site processing will be accomplished in compliance with all applicable laws and regulations; (11) The proposed hours and days of operation on-site; (12) The maximum noise level of the mining operations at the property boundaries of the site; (13) Proposed and existing sources for water and, if necessary, the method of conveyance to the site; (14) An estimate of the maximum and average quantities of water to be used in gallons per minute and acre-feet per year, and the sources for said maximum and average quantities of water; (15) An estimate of the maximum and average amounts and types of wastewater disposed of in gallons per minute and acre-feet per year, including excess processing water, mine drainage, and storm runoff from disturbed or utilized areas; (16) Proposed end-use of the site after reclamation; (17) A plot plan drawn to scale by a California registered Professional Engineer and/or similarly licensed and qualified professional and showing all the following information: a. proposed maximum area of disturbance, b. proposed maximum depth of disturbance, c. setbacks, d. interim and final grade slopes, e. location and type of all proposed mining and mining related activities, stockpile areas, on-site processing areas, f. locations of all water bodies, wetlands, riparian habitat areas, oak woodlands, vegetation communities and watercourses, including ephemeral streams, which are on-site or which will be affected, g. locations of proposed and existing wells, if any, and h. locations of proposed points of extraction of surface water from water bodies and/or streams; (18) A vicinity map drawn to scale showing the locations of parcels, buildings, topography, residences, wells, water bodies, watercourses, including ephemeral streams, within 1,000 feet of the proposed maximum area of disturbance; and (19) A complete reclamation plan pursuant to Section 13-108 of the Article, including pre, phased (if any) and post -reclamation plot plans. (b) Filing Fee: Each application shall be accompanied by a filing fee in the amount set ■Butte County Department of Development Services- C7Q 9 ■March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinance• forth in Article IV of Chapter 3 of this Code at the time of application submittal. Sec. 13-106. Application Review Procedure. Within thirty (30) days of accepting the application as complete, the Planning Division shall distribute copies of the mining permit application, reclamation plan, and financial assurance cost estimate to the Butte County Public Works Department, the Butte County Environmental Health Division, the Butte County Water Commission, the Committee and other responsible agencies, including but not limited to, the United States Army Corps of Engineers, the California Department of Fish and Game, the California Department of Water Resources and the Central Valley Division of the Regional Water Quality Control Board. Whenever mining operations are proposed in the 100 -year flood plain for any stream and within one mile, upstream or downstream, of any state highway bridge, the Planning Division shall, pursuant to Public Resources Code Section 2770.5, notify the State Department of Transportation, that the application has been received. Within thirty (30) days of the distribution of the permit application, reclamation plan, and financial assurance cost estimate the Committee shall meet to review them and make recommendations to staff. The Planning Division shall be responsible for developing an agenda and setting the time and place for the Committee meeting. Sec. 13-107. Initial Study. The Planning Division will be responsible for conducting the Initial Study to determine the project's status in respect to the California Environmental Quality Act, Public Resources Code Section 21000 et seq. Sec. 13-108. Standards for Reclamation. (a) All Reclamation plans shall comply with the provisions of Public Resources Code sections 2772 and 2773 and State regulations 14 CCR, Chapter 8, Subchapter 1, Article 1 (Section 3500 et seq.), and shall include a statement that the person submitting the plan accepts responsibility for reclaiming the mined lands in accordance with the reclamation plan. Reclamation plans approved after January 15, 1993, reclamation plans for proposed new mining operations, or any proposed amendments to previously approved reclamation plans determined to be a substantial deviation pursuant to State regulation 14 CCR Section 3502(d), or where an amended reclamation plan is required pursuant to State regulation 14 CCR Section 3502(e), shall also comply with the state regulation requirements for reclamation performance standards (14 CCR Sections 3700-3713). (b) The reclamation plan shall be applicable to a specific piece of property or properties, shall be based upon the character of the surrounding area and such characteristics of the property as type of overburden, soil stability, topography, geology, climate, stream characteristics, groundwater, and principal mineral commodities, and shall establish site-specific criteria for evaluating compliance with the approved reclamation plan, including topography, revegetation and sediment, and erosion control. The county may impose additional performance standards as developed in the review of individual projects, as warranted, or through the formulation and adoption of countywide performance standards. The reclamation plan shall ■Butte County Department of Development Services■ n O ■March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinance■ 7 include: (1) The name and address of the surface mining operator and the names and addresses of any persons designated by the operator as an agent for the service of process; (2) The anticipated quantity and type of minerals for which the surface mining operation is to be conducted; (3) A description of and a plan for the type of surface mining to be employed; (4) The proposed dates for the initiation and termination of the surface mining operation; (5) The maximum anticipated depth of the surface mining operation; (6) The size and legal description of the site that will be affected by the surface mining operation; (7) The names and addresses of all surface interests and mineral interests in the lands that will be affected by the surface mining operation; (8) A description of the general geology of the area and a detailed description of the geology of the area in which surface mining is to be conducted; (9) A description of the nature and sequence of reclamation activities including, but not limited to, such items as landscaping, erosion control, seeding, fill of low pit areas, shaping of pit floors, management of mined and unminable deposits, original, interim and final rough slopes and grades; (10)An anticipated time schedule that will provide for the completion of surface mining on each segment of the mined lands so that reclamation can be initiated at the earliest possible time on those portions of the mined lands that will not be subject to further disturbance by the surface mining operation; (I I) A description of the disposition of overburden following its removal, whether sold, disposed of off-site, or stored on-site. If on-site storage is proposed, the anticipated location, aerial extent and average depth of the stored overburden shall be identified on the reclamation plot plan; (12) A description of the source for and nature of all fill, if any, required for reclamation, and verification that all such fill complies with all applicable Regional Water Quality Control Board and California Integrated Waste Management Board regulations pertaining to fill material; (13) A description of the manner in which reclamation, adequate for the proposed or potential use(s), will be accomplished, including: a. the manner in which contaminants will be controlled, and mining waste disposed, and b. the manner in which affected streambed channels and streambanks will be rehabilitated to a condition minimizing erosion and sedimentation; (14) An assessment of the effect that implementation of the reclamation plan will have upon the site's remaining unmined resources and future mining in the area, (15) A description of the proposed or potential use(s) of the mined lands after reclamation and evidence that all owners of possessory interest in the land have been notified of the proposed or potential use(s); (16) A discussion of the public health and safety in regards to potential public access to the site in its final condition; (17) Criteria for measuring the successful completion of specific reclamation activities; (4-91 A pre-mining operation plot plan, drawn to scale by a California registered Professional Engineer and/or similarly licensed and qualified professional, showing the boundaries and topographic details of the site, the location of all streams, roads, railroads, and •Butte County Department of Development Services■ 91 ■March 24, 2009 0 DRAFT Amendment to Butte County Mining Ordinance■ utility facilities within, or adjacent to, the lands, the location of all proposed access roads to be constructed in conducting the surface mining operation; (20.L9) Plot plans for each reclamation phase, if any, drawn to scale by a California registered Professional Engineer and/or similarly licensed and qualified professional; and (2-1-20) A post -reclamation plot plan drawn to scale by a California registered Professional Engineer and/or similarly licensed and qualified professional and showing the ultimate physical condition of the site, including, but not limited to, the following information: a. boundaries of areas to be reclaimed, including acreage, b. post -reclamation drainage, showing direction of flows, erosion and sediment control structures or treatment such as water bars, berms, siltation ponds, diversions, etc., c. revegetation plan including the names of plant species, size, area and spacing of plants, d. reclaimed ground surface elevation contours, at an appropriate vertical scale, e. all surface openings closed through reclamation, f. buildings, structures, and equipment to be either dismantled and removed from the site or to remain on site and be consistent with the end use, and g. post -mining safety features (e.g. fences, gates, signs). (c) Reclamation activities shall be initiated at the earliest pessil'AW feasible time on those portions of the mined lands that will not be subject to further disturbance. Interim reclamation may also be required for mined lands that have been disturbed and that may be disturbed again in future operations. Reclamation may be done on an annual basis, in stages compatible with continuing operations, or on completion of all excavation, removal, or fill, as approved by the county. Sec. 13-109. Financial Assurance. (a) The Board of Supervisors, when taking action pursuant to Section 13-110, and the Director of Development Services, when approving annual adjustments in the financial assurances amount pursuant to this subsection (e) of this section, shall require financial assurances as necessary to conform to the provisions of this Article and with Section 2773.1 of the Public Resources Code. (b) The mine operator or applicant shall submit a good faith calculation estimating the Financial Assurance amount for reclamation, based on the requirements of Public Resources Code Section 2773. 1, the state's Financial Assurance Guidelines, and State regulations 14 CCR Section 3804. Such estimates shall be prepared by a California registered Professional Engineer and/or other similarly licensed armor qualified professionals retained by the operator and approved by the Director of Development Services. The estimated amount of the financial assurance shall be based on an analysis of the physical activities necessary to implement the approved reclamation plan including, but not limited to, the costs to a commercial operator other than the permittee of labor, equipment, mobilization of equipment, materials, any maintenance and/or monitoring of reclaimed areas as may be required, the reasonable profit and costs for administration by a commercial operator other than the permittee, and the administrative costs of the state or county to oversee implementation of the reclamation plan. If the mine operation is phased and the operator provides a phasing program, financial assurances can be based on each specific phase. ■Butte County Department of Development Services- 92 ■March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinance■ /Osswi (c) In projecting the costs of financial assurances, it shall be assumed without prejudice or insinuation that the surface mining operation could be abandoned by the operator and, consequently, the county or State Department of Conservation may need to contract with a third party commercial company for reclamation of the site. (d) The financial assurances shall remain in effect for the duration of the surface mining operation and any additional period until reclamation is completed (including any maintenance and/or monitoring required). (e) The amount of financial assurances required of a surface mining operation for any one year shall be adjusted annually prior to the anniversary date for approval of the financial assurances. The mine operator shall annually submit to the Planning Division a revision of the calculation estimating the financial assurance so that it may be determined what adjustment, if any, should be made by the Director of Development Services in the amount of the financial assurance. The annual financial assurance cost estimate shall account for the cost of reclamation of existing lands disturbed by and accessory to surface mining operations in accordance with the approved reclamation plan, and shall also account for inflation and anticipated activities during the upcoming year, excepting that the permittee may not claim credit for reclamation scheduled for completion during the coming year. (f) A county -employed, state licensed civil engineer and/or other similarly licensed and qualified professional shall be responsible for verifying financial assurance cost estimates so as to guarantee reclamation in accordance with the approved reclamation plan. (g) The Planning Division shall forward a copy of the annual financial assurance estimate to the State Department of Conservation for review. If the State Department of Conservation does not comment within forty-five (45) days of receipt of the estimate, it shall be assumed that the estimate is adequate, unless the county has reason to determine that additional costs may be incurred. (h) Financial assurances shall be made payable to the county and the Department of Conservation. Sec. 13-110. Public Hearing. (a) The Planning Division shall, upon completion of the review process pursuant to Sections 13-106 and 13-107, schedule the permit application, including the proposed reclamation plan and financial assurances, referred to hereinafter collectively as the "Application," for public hearing before the Planning Commiss oard of Supervisors in the same manner as provided for in Section 2445.25 of Chapter 24 of this Code, and shall prepare a staff report with recommendations for consideration by the Planning Commiss oard of Supervisors. (b) The Planning Commiss oard of Supervisors shall hold at least one noticed public hearing, or as many public hearings as required, to evaluate the Application and shall take formal action to approved, conditionally approved or denied ' pursuant to Seetien 24 4 5.25 of this the Application. (c) Prior to the Board of Supervisor's final approval of a reclamation plan, financial assurances (as provided in Section 13-109 of this Code) or any amendments to the existing financial assurances or the reclamation plans that constitute substantial deviatiens fiem the exisfingmelamatkm plan (under- Seetion 13 117 ef this Gede), the Board of Supewiser-s shall ■Butte County Department of Development Services■ 9J r� ■March 24, 2009 n DRAFT Amendment to Butte County Mining Ordinances . The Planning Division shall submit the reclamation plan, financial assurances and/or amendments, and any related document prepared, adopted or certified pursuant to the California Environmental Quality Act, to the State Department of Conservation for review pursuant to PRC Section 2774(d). All documentation for that submission shall be submitted to the Department of Conservation at one time. The director of the State Department of Conservation shall have thirty (30) days from the date of receipt of a reclamation plan or plan amendment and forty-five (45) days from the date of receipt of a financial assurance to prepare written comments, if the director so chooses. The county shall evaluate any written comments received from the director relating to the reclamation plan, plan amendments, or financial assurances within a reasonable amount of time. (d) The county shall prepare a written response to the director's comments describing the disposition of the major issues raised by the director's comments, and submit the county's proposed response to the director at least thirty (30) days prior to approval of the reclamation plan, plan amendment, or financial assurance. The county's response to the director's comments shall describe whether the county proposes to adopt the director's comments to the reclamation plan, plan amendment, or financial assurance. If the county does not propose to adopt the director's comments, the county shall specify, in detail, why it proposes not to adopt the comments. Copies of any written comments received and responses prepared by the county shall be forwarded to the operator. The county shall also give the director at least thirty (30) days' notice of the time, place, and date of the hearing before the lead agency at which time the reclamation plan, plan amendment, or financial assurance is scheduled to be approved. If applicable law requires no hearing, then the county shall provide thirty (30) days notice to the director that it intends to approve the reclamation plan, plan amendment, or financial assurance. The county shall send to the director its final written response to the director's comments within thirty (30) days following its approval of the reclamation plan, plan amendment, or financial assurance during which period the department retains all powers, duties, and authorities under the law. (e) The Board of Supervisors, on the basis of evidence submitted at the hearing, and upon finding that an environmental impact report or negative declaration has been prepared, considered, and certified or approved in compliance with the California Environmental Quality Act, that the application is consistent with the county general plan, that the application, as approved, considering all conditions, modifications, and mitigations, includes all the information required by Section 13-105(a) and Section 13-108, and the application is in compliance with the requirements of this Article, SMARA (PRC Section 2710 et seq.), and State regulations 14 CCR Section 3500 et seq. and Section 3700 et seq., and the application is in compliance with the criteria specified in Section 24-45.10 of Chapter 24 of this Code, may approve, or conditionally approve, the reclamation plan, financial assurance, mining permit and, if required, use permit for mining. If said findings cannot be made, the Board of Supervisors shall deny the application. The determination of the Board of Supervisors shall be final. (e) The Board of Supervisors, on the basis of evidence submitted at the hearing, may approve, or conditionally approve, the reclamation plan, financial assurance, mining permit and, if required, use permit for mining, if it finds that the application, as approved, considering all conditions, modifications, and mitigations: (1) includes an environmental impact report or negative declaration that has been •Butte County Department of Development Services■ A •March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinance• 4 /001*4\ prepared, considered, and certified or approved in compliance with the California Environmental Quality Act; (1) is consistent with the county general plan; (2) includes all the information required by Section 13-105(a) and Section 13-108 of this Article; (3) is in compliance with the requirements of this Article, SMARA (PRC Section 2710 et seq.), and State regulations 14 CCR Section 3500 et seq. and Section 3700 et seq.; and (4) is in compliance the criteria specified in Section 2445.10 of Chapter 24 of this Code. If said findings cannot be made, the Board of Supervisors shall deny the application. The determination of the Board of Supervisors shall be final. (f) The Board of Supervisors shall forward a copy of each approved mining permit and/or mining use permit, reclamation plan and financial assurance to the State Department of Conservation and shall record a Notice of Reclamation Plan Approval with the county recorder, pursuant to Public Resources Code Section 2772.7. Said notice shall read: Mining operations conducted on the hereinafter described real property are subject to a reclamation plan approved by the County of Butte, a copy of which is on file with the Planning Division of the Department of Development Services. (00N) (a) Upon approval of the mining permit and the associated use permit, if required, the operator shall commence surface mining operations within five (5) years from the date of issuance of the permit. ' (1) For the purposes of this section, "commencement of surface mining operations" shall include, but not be limited to: a Ground disturbance: b The processingof ,y subsequent or ancillary permit(s) necessary to initiate surface mining operations; c The payment of property taxes pursuant to reassessment of the project site for mineral extraction uses: d The filing of Annual Reports pursuant to SMARA; and e The maintenance of an approved Reclamation Plan and Financial Assurances. (2) In filing its Annual Report, the operator shall identify the activities associated with its mining operation that constitute "commencement of surface mining operations." the- . with Seeflen 2207 of the Public Reseumes Code and Seettimen. 11:2 -1 1 1 6(a) of this Miele, shall, within the first years fellewing appreval and no lateFthan July 1, eemmenee ferAwding fenns fumished by the SWe Board; and (3)the eounty; in semplianse with See4ion 2774(b) and Seefien 13 116, shall senduet an &)ee4ien ef the mining epemfien %4thiia the fist year- fellowing appreval and no later- than sh.E (b) Should operations not commence within five years from the date of issuance of the permit, the operator may request an extension. A request for an extension of the mining permit and use permit for mining, if required, shall be made to the Planning Director. The -Butte County Department of Development Services• 95 ■March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinance• Planning DirectorDiv4sim may approve an extension for a period of up to five years upon a showing of good cause. The Planning Director's determination shall be final unless aovealed to the Board of Supervisors, who's decision shall be final. shall sehedule the emensien Commission'spublie hearing befere the Planning G Ft in the same manner. pr-evided feF ifl SeGOOR 13 10 of this aftiele. (e)The Planning Commission shall held at least one notieed publiez, heaFifig eH thO meemmendatien, the Planning Division shall sehedule a nefieed publie hearing befer-e the Bear4 . >on the basis efthe eividenee submitted at the heeAng, shall befinal. Development SeFviees shall make a deteFminatien whether- the i i Ffflit ffidler- use pefinit the epemflen eF thO issuanee efa peffnit shall not be deefned liabilities feF work or- materials. e.xpired be evause epemfiens have not ee P—loped v4thin said five (5) yeas, the epeFMOF Shall be fer- miainfg,, has eKpind shall have the right to appeal. The Planning Divisien shall sehedule the - Jr -al -- - Ft in the same manner- as previded in - >en the basis ef evideftee submitted at the heaFing, and - upon findings made based upon su eh evidenee, shall, pursuant to Seetien 13 110, meemmend A tiele. Sec. 13-112. Idle Mines/Interim Management Plans. (a) Within 90 days of a surface mining operation becoming idle, as defined in Section 13- 103 and Section 2727.1 of the Public Resources Code, the operator shall submit a proposed interim management plan to the Planning Division for review and approval by the Director of Development Services. For the purposes of this section and when determining whether a mine gualifies as an "idle," "mineral extraction," as that term is used in section 2727.1 of the Public Resources Code, shall include all activities which constitute "surface mining operations" under SMARA. The review and approval of an interim management plan shall not be considered a project for purposes of the California Environmental Quality Act (Public Resources Code Section 2100 et seq). The interim management plan shall be submitted on forms approved by the Planning Division and provided by the county. The approved interim management plan shall ■Butte County Department of Development Services■ 96 ■March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinance■ be considered an amendment to the mining operation's approved reclamation plan, shall comply with the requirements of Public Resources Code Section 2770(h),, and shall include measures the operator will implement to maintain the site in a stable condition, taking into consideration public health and safety, and in compliance with this Article, all permit conditions of the approved reclamation plan, mining permit and/or mining use permit. (b) Upon receipt of a complete proposed interim management plan, the Planning Division shall forward the interim management plan to the Department of Conservation for review. The interim management plan shall be submitted to the Department of Conservation at least 30 days prior to approval by the Director of Development Services. (c) The Director of Development Services shall approve or deny approval of the interim management plan within 60 days of receipt of a complete plan or within a longer period mutually agreed upon by the Planning Division and the operator. If approval is denied, the operator shall have 30 days, or a longer period mutually agreed upon by the Planning Division and the operator, to submit a revised interim management plan. The Director of Development Services shall approve or deny approval of the revised interim management plan within 60 days of receipt. (d) Any person aggrieved by a denial of a revised interim management plan by the Director of Development Services shall have the right to appeal. The Planning Division shall schedule the appeal for public hearing before the Planning Commission in the same manner as provided in Section 13-110 of this Article. (e) The Planning Commission, on the basis of evidence submitted at the hearing, and upon findings made based upon such evidence, shall, pursuant to Section 13-110, recommend to the Board of Supervisors whether the interim management plan should be approved, modified or denied. The Planning Division shall schedule a public hearing for the Planning Commission's recommendation within 45 days before the Board of Supervisors, or any longer period mutually agreed upon by the operator and the Clerk of the Board of Supervisors. (fl The Development Services Department and such technical specialists as it may deem necessary, shall conduct inspections of each idle mine at least once each calendar year, in accordance with Section 2774(b) to assure compliance with the approved Interim Management Plan. (g) The interim management plan may remain in effect for a period not to exceed five (5) years, at which time the county shall do one of the following: (1) Renew the interim management plan for an additional period not to exceed five (5) years, if the county finds that the operator has complied fully with the interim management plan; (2) Require the operator to commence reclamation in accordance with the approved reclamation plan. (h) The financial assurance required by Section 13-109 shall remain in effect during the period the surface mining operation is idle. If the surface mining operation is still idle after the expiration of its interim management plan, the surface mining operation shall commence reclamation in accordance with its approved reclamation plan. (i) Unless review of an interim management plan is pending before the Director of Development Services, a surface mining operation which remains idle for over one year after becoming idle as defined in Section 13-103 without obtaining approval of an interim management plan shall be considered abandoned and the Director of Development Services shall give notice to the operator to commence and complete reclamation in accordance with the approved Reclamation Plan. •Butte County Department of Development Services■ 97 •March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinance• Sec. 13-113. Vested Rights. (a) No person who has obtained a vested right to conduct surface mining operations prior to January 1, 1976, shall be required to secure a permit pursuant to this Article and the Act as long as the vested right continues and as long as no substantial changes are made in the operation except in accordance with this Article. A person shall be deemed to have vested rights if, prior to January 1, 1976, he or she has, in good faith and in reliance upon a permit or other authorization, if the permit or other authorization was required, diligently commenced surface ining operations and incurred substantial liabilities for work and materials necessary for the surface mining operations. Expenses incurred in obtaining the enactment of an ordinance in relation to a particular operation or the issuance of a permit shall not be deemed liabilities for work or materials. (b) A "vested right" is the right to conduct a legal nonconforming use of real property if that right existed lawfully before a zoning or other land use restrictions became effective and the use is not in conformity with that restriction when it continues thereafter. A vested mining right, in the surface mining context, may include but shall not be limited to: the area of mine operations, the depth of mine operations, the nature of mining activity, the nature of material extracted, and the quantity of material available for extraction. -Butte County Department of Development Services• 9O p ■March 24, 2049 ■ DRAFT Amendment to Butte County Mining Ordinances 140"1\ Qa (c) Where a person with vested rights continues surface mining operations in the same area pursuant to such vested rights subsequent to January 1, 1976, a reclamation plan is required under subdivision (b) of Section 2770 of the Public Resources Code and Section 13-105 of this Article for those operations conducted after January 1, 1976, or to be conducted. Expansion of surface mining operations after January 1, 1976 may be recognized as a vested nonconforming use under the doctrine of "diminishing assets" as set forth in Hansen Brothers Enterprises, Inc. v. Board of Supervisors (1996) 12 Cal. 4th 533. (d) Nothing in this Article shall be construed as requiring the filing of a reclamation plan for, or the reclamation of, mined lands on which surface mining operations were conducted and completed prior to January 1, 1976. Sec. 13-114. Determination of Vested Rights. If a dispute arises regarding the existence or scope of a vested right, the Planning Commission may conduct a hearing. The Planning Commission's determination may be appealed to the Board of Supervisors for final determination. different;(a)Any per -sen Whe OlaiffiS tO MIN a VeStOd Fight tO sendeet swfiee mini epomfiens pusa&M to Seetien 13 113 efthis Miele shall file a Glaim ef Vested -R-ii-1 the evistenee and eMent of the vested right shall be on the elaimant. (b)Any per -son who has meeived a final deteFminatienfFOm the aeunty pr-iff t8 the effeetive date efthis seetion seafffming a vested right to eenduet sUF&Oeffii i of Vested RigM pr-eivided the seepe of said epemfien has net ercpanded beyond that fer whieh them was objeetive evidenee of an intent te mine eA the time of said final (e)The Glaim of Vested Right shall be en a feFm fumished by the eeamy md shall be U! and eemplete, eentaining all infeFmatiea required by the Planning Division (I )Name, address, and telephone number- ef the elaimant, and ef my agent fer >address, hone number- of ' if diffefentthan the elaimant-,L (3)Nafae, address and telephene number- ef&V lessee, lien holder-, eF at ' (5)A legal deseriptien ef sush pr -epi I ' i I ling tevmship and mage, metes emd beands, >identifsueh deseffifflfiw% 323 > ■Butte County Department of Development Services- 99 ■March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinance■ (t)M the time and plaeo set the Gemmittee shall meet to evaluate the elaifn and to Committee, the Planning Divisien shall sehedule the claim feFpiablie hearing befer-8 the (h)- o.*;nc;, the basis of oa;aor-co 51 -ah- .;tnd at the heafing, and upen findings made based upen sueh ev d-efi-A-A5, shall meemmend to the Bewd ef Supervisors whethef and to "at ex4ent vested rights exist. Seetien 13 110 of this Miele-. O)A final deteminatien ag that ivested rights evist shall eenstftute pfepeAy eF pr-epeftieffisdiMARnet require a peffnit pursuant t this Affiele and the Aet as - ■Butte County Department of Development Services■ 100 •March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinances >m4th suppeFting decumenWien, indisating the basis fer- the el i >with suppefting deouinenwien, efthe vested- rights elaimed, ineluding a depiefien of the full eKlent of the ama intent,seals > > all leeal land use e eFdinanees> >pennits, SHOh PFOP (10)The names and mailing addresses efthe e%%er-s efall prepefties (12)PFeef ef substantial liabilities nesessafil.5, ineafred fef work and materials to (t)M the time and plaeo set the Gemmittee shall meet to evaluate the elaifn and to Committee, the Planning Divisien shall sehedule the claim feFpiablie hearing befer-8 the (h)- o.*;nc;, the basis of oa;aor-co 51 -ah- .;tnd at the heafing, and upen findings made based upen sueh ev d-efi-A-A5, shall meemmend to the Bewd ef Supervisors whethef and to "at ex4ent vested rights exist. Seetien 13 110 of this Miele-. O)A final deteminatien ag that ivested rights evist shall eenstftute pfepeAy eF pr-epeftieffisdiMARnet require a peffnit pursuant t this Affiele and the Aet as - ■Butte County Department of Development Services■ 100 •March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinances f I R1111-111— Sec. 13-115. Public Records. Reclamation pians, reports, financial assurances, financial assurance cost estimates, applications, and other documents submitted pursuant to this Article are public records, unless it can be demonstrated to the satisfaction of the County that the release of such information, or part thereof, would reveal production, reserves or rate of depletion entitled to protection as proprietary information. The applicant shall have the right t^should identify what, in his opinion, is proprietary information when submitted. The Planning Division shall identify proprietary information as a separate part of each application. A copy of all permits, reclamation plans, financial assurances, financial assurance cost estimates, reports, applications and other documents submitted pursuant to this Article, including proprietary information, shall be furnished to the Director of Department of Conservation by the County of Butte. Proprietary information shall be made available to persons other than the Director of Department of Conservation only when authorized by the mine operator and by the mine owner in accordance with Section 2778 of the Public Resources Code. Sec. 13-116. Annual Reports/Inspections. (a) In compliance with Section 2207 of the Public Resources Code, the owner, manager, or other person in charge of any surface mining operation shall forward an annual report to the Director of Department of Conservation not later than July 1 upon forms furnished by the State Board. Such annual report shall be in accord with instructions included with the forms. The designated copy shall be submitted to the Planning Division on or before July 1. (b) The Development Services Department, and such technical specialists as it may deem necessary, shall conduct inspections at least once each calendar year, in accordance with section 2774(b) of the Public Resources Code, for each mining operation to determine whether the surface mining operation is in compliance with the mining permit, reclamation plan, and, if required, mining use permit, and with the spirit and intent of this Article and the Act, and the provisions thereof. Such inspection shall be conducted using a form provided by the Director of Department of Conservation for that purpose, and shall be conducted no later than six (6) months after receiving the surface mining operation's annual report submitted pursuant to Section 2207 of the Public Resources Code and Section 13-116(a). This Section does not preclude the county from requiring additional inspections for the purpose of ensuring appropriate environmental protection. (c) The cost of the annual inspection required by Section 13-116(b), above, shall be borne by the operator. The county shall establish and annually review a fee recovery program to cover the reasonable costs incurred in implementing this Article. (d) If the Operator fails to file a report as required by this section, the Director of Development Services shall commence proceedings to revoke the mining permit and mining use permit, if any, in the same manner as specified in Section 24-45.65 of this Code. Sec. 13-117. Amendments. •Butte County Department of Development Services■ 101 ■March 24, 2009 a DRAFT Amendment to Butte County Mining Ordinances amendments, inelading intershn mmagement plans as set fei4h in Section. 3. 1.25, Shall be submitted to the Plaffifling Division detailing proposed ehanges &em the eFigina4-piffisfi. A.M.M.P.d.metHASs to - substantial deviations ftem the er-iginal plan, as defined in Seetien 13 103 abeve and 8 use, shall net be andeFtaken until sush amendment has bee.n. appFeved by the Board of SapeFviseFs par-suent te the preeess set out in Seeti .. 131 110. The Planning Divisien shall - review the pmpesed amendment in the same inamer- as speraffied in seetiefis 13 106 Md 13 107 and shall set a publie hearing regarding sueh amendmews in the same manneF i a ided fer- .Amendments to an approved reclamation plan may be submitted detailing proposed changes from the original plan. Substantial deviations from the original plan shall not be undertaken until such amendment has been filed with, and approved by. the Board of Supervisors pursuant to the process set out in Section 13-110. Sec. 13-118. Transferability. Permits, reclamation plans and financial assurances issued under the provisions of this Article are transferable, and the successor shall be bound by the provisions of the approved reclamation plan or permit and the provisions of this Article. � See. 13-119. Minor Modifications. (a) Minor modifications of an approved mining permit and/or reclamation plan may be allowed by the Director of Development Services pursuant to the following Mguirements.-apen reclamation plan and aahieving the pFeser-ibed post mining use efthe mclahned land. MineF medifleations will be more fiwer-ably eensider-ed ifthey are &F a limited thne per-ied and/ors (b).. Applications for a minor modification shall be made on a checklist form provided by and filed with the Planning Division. (e)j. _pproval of a minor modification shall require written findings bv; the Director that the minor modification meets all of the following: Via. meets -that mit meets the definition of "Minor Modification," as set forth in Section 13-103 above; fib. that it is consistent with accomplishing the original goals of the approved permit and/or reclamation plan and will achieve the pressed -post -mining use of the reclaimed land; and 3:c. that it is eligible for an exemption under the not suljest-4e-California Environmental Quality Act. (d)3. The Director shall approve, conditionally approve, or disapprove an application for a minor modification within 45 days of accepting the application as complete, and give notice by mail of the decision, including any conditions of approval, to the applicant. -Butte County Department of Development Services■ 102 -March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinance■ A00*61 (e)Lb)Any person aggrieved by a denial of a proposed minor modification by the Director of Development Services shall have the right to appeal. The determination of the Director shall be final unless a written appeal is filed with the clerk of the board by 5:00 p.m. on the tenth calendar day following the date of the determination: provided, that if said tenth day falls on a weekend or legal holiday, the appeal may be filed by 5:00 p.m. on the next day which the office of the clerk is open for business. The clerk shall immediately forward a copy of said appeal to the planning commission. No minor modification shall be effective until said time for appeal has expired, nor may the minor modification be effective until the Planning Commission acts on said appeal. Within ten (10) days of the date of filing of an appeal, the clerk of the board shall set a date for a hearing. Said hearing shall be advertised and noticed pursuant to Section 24-45.25 and Section 24-45.10 of this Code. The decision of the Planning Commission shall be final and not subject to review except by a court of competent jurisdiction..The Planning Division shall sehedule the appeal fer publie hearing befere the Planning Commissien in the same manner as provided in Seetion 13 110 efthis A PIA (e)The Planning Commission, on the h-a-SiS of evid-enee submitted at the hearing, and upon findings made4 I A I * knce, shall, pursuant tA Seetimi I � I 10, r-esernmend to this Miele. (g)Lc)Within 30 days of final actions the Director or, if appealed, final action by the Planning Commission, the dDirector shall send a copy of an approved minor modification to the Department of Conservation. Sec. 13-120. rCnforcement.JDFTI) The Planning Division and Board of Supervisors, acting as lead agency, shall enforce the provisions of this Ordinance and the provisions of SMARA pursuant to the requirements of Public Resources Code Section 2774.1 as it may be amended from time to time. (a)Vielatien Pub lip 44,y i........e A nyyieletien of this Miele, e ..... r ti,e tes e an dit:ans . Substantial Change to the applieable mining pefmit and/er mining use pennit er- restilts in a Substafffial Deviation from the Feelammien p !an appreved pursua;; te th is A-14- i A- I A-, i s 11 -;;- I.F1004-H I -And- i s; d- e- A- lar -ed te b e a pub! ie apei,ating without hewing a mining pomit approved pur-suant te this -4 AMR and witheut having a right te de so pur-suant te vested rights detefmined te exist pursuafit te Seefien 13 113, the and the operator- fails to preduee evideneewithin 30 days that the eliefetien .., to and in eemplianre with a mining peFmit er vested Fights, the Direetar eO pursuant Develepment gar -vices shall erder the epeieter te eease epeiations immediately and apply for all- iminediately and is not appealable. issued- -Butte County Department of Development Services- -March •March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinance- (6)1n abeyethe ! detemining BeaM ef Supervisors the amount shall of take the adminis#Mive into eensidomfien penalties the faf subsections ! (4) and (5) ! ! any prier- history ! the degree ef salpability! ! if ! resulting fifein the ! and any other- matters just'g-Fanted a a final. . A.% sI IIINO "PROW. - - :,r7m IN IWO P-9 01. (6)1n abeyethe ! detemining BeaM ef Supervisors the amount shall of take the adminis#Mive into eensidomfien penalties the faf subsections ! (4) and (5) ! ! any prier- history ! the degree ef salpability! ! if ! resulting fifein the ! and any other- matters just'g-Fanted hemin shall be final. (8)1f m epsmter- ini FAinues to mine after- the epeffit-ek-r4l; ­14--ining Peff nit and (400*) ie pemit; ! has been suspended, -Butte County Department of Development Services• 104 •March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinance• Sec. 13-121. Mineral Resource Protection. (a) Mineral resource areas that have been classified by the State Department of Conservation's California Geological Survey, designated by the State Mining and Geology Board or by the Butte County General Plan, as well as existing surface mining operations that remain in compliance with the provisions of this Article, shall be protected from intrusion by incompatible land uses that may impede or preclude mineral extraction or processing, to the extent possible for consistency with the Butte County General Plan. (b) In accordance with Public Resources Code Section 2762, the Butte County General Plan will be updated to reflect mineral information (classification and/or designation reports) within twelve (12) months of receipt from the State Board of such information. Land use decisions within Butte County's unincorporated areas will be guided by information provided on the location of identified mineral resources of regional and statewide significance. Conservation and potential development of identified mineral resource areas will be considered and encouraged. Recordation on property titles of the presence of important mineral resources within /0011-N the identified mineral resource areas may be encouraged as a condition of approval of any development project in the impacted area. Prior to approving a use that would otherwise be incompatible with mineral resource protection, conditions of approval may be applied to encroaching development projects to minimize potential conflicts. Section 2. Section 24-45.25, entitled "Use Permits - Hearing," of Chapter 24, Entitled "Zoning," of the Butte County Code, is amended to read as follows: "Section 24-45.25 Use Permits - Hearing. Upon the filing of a sufficient and proper application and payment of the fees provided for in Section 2445 herein, the planning commission shall fix a time and place for a public hearing. A notice of hearing on the application for a use permit shall be both published in a newspaper of general circulation in accordance with Government Code Section 65090 and be mailed pursuant to Government Code sections 65905 and 65901 to the owners of all property within three hundred (300) feet from the exterior boundaries of all property upon which an application for proposed use has been made. Said notice shall be mailed to said property owners at their last -known addresses using the address from the latest equalized assessment roll of the County of Butte, except that in no case shall less than ten (10) separate and individual property owners closest to the area being considered be notified. Said notice shall indicate the time, date and place of the hearing and the location of the subject property. Failure of any property owner to receive such a notice shall not affect in any manner the action taken by the Planning Commission or the Board of Supervisors. /0001� Section 3. Severability. ■Butte County Department of Development Services- 105 ■March 24, 2009 • DRAFT Amendment to Butte County Mining Ordinances If any provision of this ordinance or the application thereof to any person or circumstance is for any reason held to be invalid by a court of competent jurisdiction, such provision shall be deemed severable, and the invalidity thereof shall not affect the remaining provisions or other applications of this ordinance which can be given effect without the invalid provision or application thereof. Section 4. Effective Date and Publication. This Ordinance shall be and it is hereby declared to be in full force and effect from and after thirty (30) days after the date of its passage, and before the expiration of fifteen (15) days after its passage, this Ordinance shall be published once with the names of the members of the Board of Supervisors voting for and against it in a newspaper published in the County of Butte, State of California. PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of California, on the day of , 2009, by the following vote: AYES: NOES: ABSENT: NOT VOTING: Bill Connelly, Chair of the Butte County Board of Supervisors ATTEST: GREG ITURRIA Interim Chief Administrative Officer and Clerk of the Board ■Butte County Department of Development Services- 106 ■March 24, 2009 ■ DRAFT Amendment to Butte County Mining Ordinances Surface Mining In Bufte County Current Mining Operations • Currently, annual inspections (as required by SMARA) are conducted for 22 mines in Butte County (20 permitted and 2 vested). 18 are aggregate mines and four are gold/precious metal mines. Of the 18 aggregate mines, 16 process historic dredger tailings. • There are three operating batch plants in the county with conditional use permits for the processing of asphalt and/or concrete products. • Mine permits issued in the: o 1960's:1 o 1970's:2 o 1980's:10 o 1990's:4 o 2000's: 4 (2 are amendments of 1990's era permits) • The last two permits, issued in 200612007, amended earlier permits (Morris Ravine and Table Mountain). • The last application received, in 2006 for an amendment to a 1980's -era permit, was withdrawn in 2008. • Location and footprint: o Feather River: 5 o Foothills: 15 (North County - 3, Central County - 9, South County - 4) o North County: 1 o High Lakes area: 1 o Smallest disturbance area: —3 acres o Largest disturbance area: —122 acres • Operational status: o Active: 15 (4 may go idle, several doing limited, phased reclamation) o Idle:3 o Reclaiming:1 o Abandoned: possibly 1 o Not commenced: 2 • Ownership: o Local owner/operator: 5 o Operator/construction companies based in Butte County: 5 o Operator/construction companies based outside Butte County: 12 County Mining Policies • Current Butte County General Plan Land Use Policy: 1 107 o General Plan Land Use Element Policy 2.6.a: "Encourage extraction and processing of identified deposits of building materials and other valued mineral resources. o General Plan Land Use Element Policy 2.6.b: "Encourage the reclamation of lands subject to mineral extraction." o Resource extraction and processing is a secondary use in the Orchard and Field Crop, Grazing and Open Land, Timber Mountain, and Foothill Area Residential General Plan designations. • Butte County Zoning Code: o Zones allowing surface mining with a mining permit: Timber Mountain (TM - requires use permit if "objectionable"), and Timber Preserve Zone -160 (TPZ) zones. o Zones allowing surface mining with a mining permit and use permit: Agriculture (A), Foothill Recreational (FR), Resource -Conservation (RC) and Unclassified (U). o Zones allowing a batch plant with a use permit: Light (M-1) and Heavy (M-2) Industrial. State Mineral Resources Policy • SMARA requires incorporation of mineral resource management policies in the General Plan that o recognizes mineral classifications and information prepared by the State Geologist, o provides for management of land use that affects areas identified as being of regional or statewide significance, and o emphasizes conservation and development of identified mineral resources. • For the future General Plan, the County's land use decisions must be consistent with its mineral resource policies. • Mineral resources have not been comprehensively mapped in the County. Two mineral classifications have been accepted by the State Mining and Geology Board for the Green Rock (Table Mountain) Quant' (MRZ-2a — railroad ballast) and the M&T Chico Ranch site (MRZ-2a — high quality construction aggregate resources). In accordance with PRC Section 2762(a), the County must incorporate Mineral Resource Management Policies in the General Plan that protect these resources and mining operations from incompatible land uses. 2 108 Historic and permitted mines in this exhibit are derived from the mines file in the County GIS database. 109