Loading...
HomeMy WebLinkAbout039-530-020N M&T Chico Ranch Mining Permit and Reclamation Plan - The project consists of a long -tern, off -channel gravel mining operation. The mining would take place on 193 -acres of a 235 -acre site over a 20 to 30—year period, Reclamation would occur incrementally and would consist of the creation of, open -water, wetland wildlife habitat and agricultural uses. The aggregate would be processed (washed and screened) on a 40 -acre area at the site. The project is located on a portion of the M&T Chico Ranch approximately 1.5 miles east of the Sacramento River and approximately 5 -miles southwest of the City of Chico, in an area north of and adjacent to Ord Ferry Road, and east of; and partially adjacent to, River Road. Access to the site would be provided byRiverRoad. Assessor Parcel Numbers: 039-530-019, 039-530-020 (File # MIN 96-03) (DB) Mr'.. Breedon gave a brief'suntinary ofthe project and the last hearing. He noted a letter received this morning from Ellman, Burke, Hoffinan, and Joluison. He said staffand County Counsel need to look at the issue of the Williamson Act and staff'will be asking for this item to be continued. Commissioner Lambert said she received an e-mail from Barbara J. Berger in opposition. Chairnian Leland said the Commission postponed the last meeting to. get comments from the Department of Conservation and the Department of Conservation sent a letter stating that they were not going to give the County any comments because they thought the proposal was incompatible with'the Willi arnson Act. He said the Commission can either take their response as a "no continent" and move on or the Commission can decide the Williamson Act issue without any further input.. He asked County Counsel for guidance. Mr. Wannenmacher said the last hearing was continued to receive an adequate reclamation plan. He said there has been no outside analysis on the revised reclamation plan and that we were waiting for comments from the Department of Conservation. He said that there is still a problem in evaluating the reclamation plan, and that it was a good idea to not approve the environmental document. He said now staff has a completed reclamation plan, and we are waiting to get comments from the Department of Conservation. The Department of Conservation stated that there is no point in commenting on a reclamation plan that is incompatible with the Williamson Act. He said staff is in the process of evaluating what to do.. He said one option is to see the letter, from the Department of Conservation as a "no conunent." He said under 2774 of the Public Resources Code section (d) (1) it states that "the director (Department of Conservation) shall have 30 days from the date of'receipt of a reclamation plan or plan amendments submitted pursuant to subdivision (c) and 45 days from the date of receipt of financial assurances submitted pursuant to subdivision (c) to prepare written comments, if the director so chooses." Mr. Wannenmacher said that after receiving the letter from the Department of Conservation, he contacted their legal staff and asked them whether County Counsel should interpret the letter as a "no comment." He said the response was that the letter should not be interpreted as a "no continent." He said staff is trying to evaluate this legal issue and have not reached a conclusion. He said if the Commission does not believe the Department of Conservation will give them feedback, they can direct staff'to look f'or someone else to evaluate the reclamation plan. Chairman Leland pointed out that it will take at least one more hearing to make a decision. He said lie would- be interested to hear if the applicant can get someone else to review the reclamation plan. He said to his knowledge the Williamson Act allows a gravel mine. He said the Williamson Act Contract- states that M & T gets a tax break if"they agree to restrict the use of'their property and the restrictions are set out in the contract. Included in the authorized uses is a gravel operation. In 1994 the new laws say you can not use the land for a gravel operation unless they are "grandfathered" in and the grandfathering in says if it was an authorized use back when you entered into the contract, it is still an authorized use. Mr. Wannerunacher said there is an issue determining what was allowed under the Williamson Act Contract at the time and what the 1994 changes in the law did to that contract. He said there was a problem prior to 1994 with, local governments approving projects that the Department of Conservation did not believe were compatible with the Williamson Act.. He said that pre -1994 the Department of'Conservation believed that mining operations such as this one were not compatible with the Williamson Act. He said the question is whether the local agencies had the independent authority to approve the mining or whether they needed to consider the interpretation of the Department of Conservation. He said the impacts of the 1994 amendments to the Law were to change that, but it is still grandfathered in pre-existing contracts. He said there is language in the grandfather clause that is being interpreted in different ways. He said in Govenunent Code Section 51238.3 (c) (1) "Neither shall the requirements of Sections 51238.1 and 51238.2 apply to uses that are expressly specified within the contract itself' prior to June 7, 1994, and that constituted a "compatible use" as the term "compatible use" was defined by this chapter at the time that Williamson Act contract was signed with respect to the subject contract lands." He said he asked the Department of Conservation what that section meant, and was told that it means the Department of Conservation, as the entity responsible for overseeing the Williamson Act, believes that the change in the law entitled them to have a say in what is compatible in prior contracts. He said he was not ready to say one way or the other whether that is an accurate statement. Chairman Leland asked how this issue will get resolved. Mr. Wannenrnacher said he will do more research so we can come back with the right answer. He said that the Department of Conservation has become more active in pursuing matters dealing with the Williamson Act. He noted that there were other issues discussed at the last meeting regarding this application. Chairman Leland said one of the other issues is whether this land is prime agricultural land or not. He said it would not matter if the Department of Conservation is correct on the characterization issue; the project would not be allowed either way if it is correct on the Williamson Act issue. Mr. Breedon said that under the Williamson Act it embraces open space uses and habitat uses such as are proposed by this project's end use which is wildlife ponds. He said the Williamson Act was amended a couple of'years ago to allow for those types of'open space uses being deemed compatible under the law. BUTTE COUNTY PLANNING COM IISSION N- MINUTESi JANUARY 22' 2004 PAGE:4 i..'.. Mr. Wannenmacher said he was told that the project would need to conform to one ofthe definitions of open space as defined in 51201 ofthe Govenunent Code.. He said lie would have to look whether this project would fall under any of the open space definitions. Commissioner Marin said the Commission is discussing the legalities and the question of why the Commission is not going forward here. He said the problem here is that they are caught up in issues every time "not in my back yard" people show up with their attorneys to try to intimidate the Commission. He said the County was more a part ofthe problem instead of a part ofthe solution because they were not ready to make a decision at the last meeting, continued to this hearing, and it looks like it will be continued again. He did not feel that we were moving forward. He was concerned that someone would bring up another issue to stall a decision on this project. Mr.. Wannenmacher said there may always be additional issues brought forward, but he believed at some point we will have adequate certainty to be able to deal with the issues and resolve the matter. He said at this point the reason they are not able to do that is because he has not been able to fully evaluate the issues. Commissioner Marin said the Conunission will never be able to look into this as long as we are relying on someone else to tell the Commission how they should interpret the Code. He said if the Commission can not look at something and say their opinion, and determine whether the project is good or not fbr the community, and for progress, the Commission is not going to move forward.. Chairman Leland said the Commission can not make a.decision today. Mr. Wannenmacher said if there is someone present today that has what they believe to be additional or supplemental information, it would be appropriate to give the testimony today. Commissioner Lambert asked about getting new comments past the time to continent on the EIR. If the hearing is continued and staff is receiving new information, what is the obligation to the public to respond to the new information? Mr. Wannenmacher said the one obligation is the one under CEQA to respond to comments on the Environmental Impact Report (EIR). He said the other obligation is the one under the Brown Act to hear comments received and consider those comments brought before the Commission at any hearing while the matter is open. Commissioner Lambert asked about when it comes down to making a decision, what other findings does the Commission have to make, i.e., consistent with the General Plan, public desires, etc., to approve this project. Mr. Wannenmacher said the Commission has to make a finding of consistency with the General Plan, the Commission would have to certify the Environmental Impact Report and that the certification ofthe environmental document would require a number of findings. He believed certification of the EIR would require some findings of overriding considerations as to items for which mitigations could not be set out in the environmental docurnent, and the Commission would have to make findings on the approval of the project. BUTTE, COUNTY PIiANNING COMIVIISSIONs MINUTES rJANUARY 22; 2004' s PAGE S.: �':' Chairman Leland commented on the 20 page late letter. Commissioner Nelson said letters will always come in late.. Mr. Breedon said that there were consultants and sub -consultants present to answer questions and that their time was limited. Chairman Leland said that one of the assertions was that this is an area that floods and when it floods it will pick up sediment loads and pollutants from the heavy equipment used in connection with the dredging operation and this will have an impact downstream on the Parrott Ranch. He said one complaint is that this is not addressed in the EER and that it is an impact that the Commission should consider because it is part of the overall compatibility criteria used in approving the Use Permit. He said he looked at the EIR and it seems that some accommodation was made for this impact, that the equipment would be in an area that is better protected. He said the questions are first, does the Commission believe that this requires a re -circulation of the EIR and second, is there a special impact to the Parrott Ranch downstream that should be considered? The heating was opened to the public. Mike McEnespy, engineer, said his job has been to address the flooding and hydrology issues for this project. He said that the area that will be used to process the materials excavated from the mine will be on pads that are in excess of the 100 year flood elevation. He said they worked hard at minimizing the impacts on water surface and adjacent properties so as to not increase any flooding problems in the area. He said that this project is designed to elevate the pads with the process above the floodplain and is carefully designed so the excavation part of the project has a by-pass channel. He said there will be a weir that will protect the area where they do the excavation from up to the 5 - year reoccurrence interval so that there will not be water from a combination of'Little Chico Creek, Angel Slough, and the Sacramento River flowing directly through this pit. He said the project is carefully designed so the downstream point where everytlung leaves this site, where the water goes now is where it will end up going back to. Chairman Leland said that the assertion is not that the quantity of water is going to differ-, but will the water contain sediment loads and pollutants? Mr. McEnespy discussed the design of the project. He said the project will not change the quantity of the runoff and will not put it in a different location, it will go toward the property downstream in the same place it goes now. He explained a Storm Water Pollution Prevention Plan (SWPPP) and said you have to design any project that you do to mitigate for potential off-site runoff. He said a SWPPP is a plan required by the Regional Water Quality Control Board. He said when excavation occurs in the pit area, excavation will not typically take place during the time that the water flows through the pit. He briefly discussed runoff and sediment. Mr. Wannenmacher asked if the SWPPP was something that he was'evaluating or is it something that the operator will only do after the project is approved and send only to the regional board.: BUTTE COUNTY PLANNING' COMMISSION Mr. McEnespy said the. SWPPP are required for disturbance of anything greater than one acre. He said he has done a number of'SWPPP for projects he has worked. on. lie said ones in the past have been done for on-going projects. He said lie was not hired to do a SWPPP for- this project. Mr. Breedon explained that Mr. McEnespy's job was to monitor and determine the floodplain impacts. Dave Brown, Consultant, said he felt the water issues were covered in the EIR. He discussed the pictures shown at the last meeting, by the public and other people, of water quality during flooding and those are far from clear water flowing down those pathways. He, said generally when water flows from a high energy region to a low energy region coming through a lake it will drop in sediment.load and not pick up sediment loads. Cliainnan Leland asked the significance of the State Conservation Zone, Mr. Breedon said lie would need to research that. Chairman Leland asked about the 300 -foot setback issue. Mr. Breedon said Section 2.2 of the Agricultural Element applies to residential uses, He said Policy 2.3 talked about other non-residential use. Chairman Leland said regarding the truck issues, was that this project was analyzed on the assumption that no traffic would go over the stretch of River Road between Highway 32 and Chico River Road where it parallels the Sacramento River, and asked how this would be accomplished if they do not have a set truck route. Mr. Breedon said it was by the design of the applicant that River Road will not be used. There was a brief'discussion. Chairman Leland asked how much flexibility does the Commission have to designate the truck route before they have to re -circulate the EIR and do the traffic study. Commissioner Lambert asked by limiting or determining how many trucks can go on a road, couldn't the Commission also designate a haul route. Mr. Wannenmacher said if they pick another route for traffic they would have to determine if the routes needed to be studied for the amount of traffic on them. Mr. Breedon said the proximity of the Durham School was discussed at the last meeting regarding the truck route.. He said there is a map in the EIR showing the truck route the applicant plans on using. Mr. Brown said limiting. this to one trick route would be difficult. He said the applicant needs different routes because the material goes to different locations.. Commissioner Nelson asked.what percentage of the tricks will be going to the Skyway plant. Mr. Breedon said about 15 percent Michael Brady, representing the applicant, said he was not happy that this item is being continued. He said the Department of Conservation has already'contmented once on the reclamation plan. He said the Department of Conservation has made this project more complicated then it needs to be. He said the process has gone on a long time. Commissioner Lambert said the reclamation plan might be revised, but it is the first time the Planning Commission has seen a reclamation plan.. Rene Vercrussen said he was amazed at what this process is turning into. He was upset that people turning in late letters can cause another continuance. He said the Department of Conservation commented on the EIR. He said the Williamson Act contract with M&T allows mining. He said lie could not believe the County can go back and say now mining is not allowed.. He said the SWPPP will be required by the Regional Water Quality Control Board. He said, regarding the issue of truck traffic, the trucks pay road tax and weight fees and are entitled to use the roads. He said a truck going 15 miles an hour would be in front of Putney Drive for 5 '/z seconds. He said the traffic in and out of the Skyway Plant will not change by one load. He said if this hearing is continued, he would like it continued to a point where a decision can be made and that it be the last hearing. Howard Ellman, representative of Llano Saco, said he was sorry for filing the late letter and that his practice is defending EIRs for applicants. He was concerned with flood water because Little Chico Creek floods every 5 years. He said this project will cause fine particulate matter to go downstream and will have a significant impact to Llano Saco. He asked if this hearing is continued, that this be addressed. Commissioner Marin asked if fine particulates is going to be different than what is going through now. Mr_ Ellman said that the substrate of fine particulate matter is different from normal runoff. He said this should have been addressed in the EIR and was not. Chairman Leland said in Mr. Ellman's letter, he makes the argument that this proposal violates the National Gravel Extraction Policy and he quoted "Gravel extraction sites should be situated outside of the active flood plain and the gravel should not be excavated from below the water table." Chairman Leland said it seems to him that it does not violate this policy. He said it is the fisheries' concern to keep gravel operations out of active streambeds because the fish need the gravel to spawn and to cover the young. Mr. Warmenmacher asked Mr. Ellman what kind of condition would lie suggest. Mr. Ellman said he would like to suggest that the storm water management plan that is approved by the Regional Water Quality Control Board take account of the fact that the pollutants might have an adverse affect on wildlife refuge use, so that there would be some attempt to get rid of those things either by runu*1ing the water through a swale or a settling pond. He asked that the experts address the issue. Commissioner Marin said that there was a mention in the letter regarding pollutants from the equipment running downstream. He said to his knowledge the dredging equipment to be used does not emit any exhaust of any kind and there is no chance for fuel spillage from dredging. Mr. Ellman said this will introduce heavy manufacturing into a rural area.. He said when you have heavy equipment driving in and out, things leak out of trucks. Lila Prentice said she was concerned with the aquifer and with the problems that would be caused by this project. She asked about a well monitoring program. She was concerned with pollutants seeping into the aquifer. She said the by-pass waterway is 25 feet from the Jones and Prentice property line and will interfere with their agricultural operation. She did not see where the by-pass water will go back into the natural waterway. She invited the Commission to her property to see what she sees. Frank Prentice said he can not afford lawyers and has to rely on elected County employees to support the people. He said Butte County should be natural and all he has heard this morning is talk on how to make this project work. He said if this area eventually becomes a wildlife area, it could restrict their farming operation if there are any rare and endangered species that make their home here. Jamie Cottle read a letter into the record from his father Jolut Cottle. He discussed agricultural lands being lost to commercial uses. He agreed with establishing the Greenline. The letter discussed the increase in heavy truck traffic and the effect on River Road. He was against this project. Catherine Cottle submitted pictures of River Road and Ord Ferry Road. She read a portion of'a letter from CHP. She said the CHP states traffic will have an impact on the roads and would cause a hazard to local drivers. She said she lives in the area and has been there when it has flooded. She said there are inconsistencies in the EIR. Page 5.1-25 refers to a response in the DEIR and says that traffic on the Durham Dayton Highway segment between Durham Dayton Road and Midway Road would increase by up to 40 vehicles a day without the batch plant. She said this number, according to the EIR, represents the maximum traffic that would be generated under maximum permitted production levels which it states would average out to one truck every 12 minutes representing the worst case scenario. She said on Page 4.0-23 it mentions that the DEIR identifies the average daily trips ends, which is one trip out and one trip back per vehicle, for gravel plants to be 128 trips per day under a no batch plant scenario.. She said also it is mentioned on Page 5.1-3, comment 43, "Project should be required to fund and construct the raising of the low water crossing on River Road at some date certain such as within three years of the date of the Use Permit." She said she was not aware that there was j ust one low spot on River Road. She said she felt there are at least 5 low spots on River Road, in fact the whole road is low. She did not trust the mitigation measures to be dove. She said her and her neighbors are really against this project. She said gravel can be gotten from other places such as the Roney property off of'Highway 99. Ron Jones said in the November 18`x' letter from the Department of Conservation it states that this project is in conflict with the LCA contract. He said the Department of Conservation wants a complete reclamation plan to review. He discussed the inadequacies of the reclamation plan. He said the applicant submitted a revised reclamation plan, but it was not complete. He said the revised reclamation plan does not answer people's questions. He said on the revised map, the second one posted on the wall, it shows the by-pass channel as straddling his property line. He said 30 feet of the by-pass channel as it is pictured here, is on his side of the property line and 30 feet on their side and this is the reclamation plan that the applicant has submitted and wants the Department of Conservation to approve. He said both the old and new maps have cross sections A, B, & C and these cross sections should show exactly where the by-pass channel and weirs are located, but it does not. He listed questions that were not answered on the revised reclamation plan such as "Where are details of the shore line?", "Where are details of the open water and wetland habitats?", "How far is the by-pass channel from the neighbors fence line?", "How far is the lake from the by-pass channel?", "Where will the setback levee be?", "How high will the setback levee be?", "How tall is the weir?", etc. He asked if the top soil will be sold or re -used to supplement plant growth materials on other parts of the M&T Ranch. He said this project will cause flood problems for him. He was told that the Department of Conservation would not review this plan because of the LCA contract problems. He said that the Department of Conservation would not review this project with or without the LCA problems, because this is not a complete reclamation plan. He said Baldwin Contracting has been given three chances to get this plan right and they have not done so yet. Norma Jones said she lives across from Durham Dayton School and is concerned with the increase of truck traffic and the safety of the children. Steve Prentice said he is against this project. He said this is a poorly conceived project and could be located somewhere else. He was concerned with exposing their aquifer to pollutants. He was concerned with sand covered with sediment with 6-8 inches of'silt every time it floods. He discussed protecting agricultural land. He said the by-pass was on his back fence and this is unacceptable, He said the by-pass will affect the way he farms. He said this area is isolated and that other ponds in isolated areas left by Baldwin Contracting are standing ponds with green scum and the ducks won't land on them. He was afraid this could happen here. Mr. McEnespy said that the by-pass will be on the M&T property only. He said the concern is about spray that could go into the by-pass channel and worrying about the setbacks. He said the reality is that, when the by-pass channel is flowing water at the same time water will be flowing through the Jones property, He said when Little Chico Creek flows through the Jones property it is probably at a time when they will not be out spraying. He said when water is not going into Little Chico Creek, it is likely that there will not be water in this by-pass channel. He said it is likely that the creek and channel will rise and fall at the same rate. He said a fundamental condition attached to this project will be that there is no net increase in terms of flow on any adjacent property. He said it would be up to the developer to hire an engineer to do the reclamation plans. BUTTE COUNTY PLANNING COMMISSION'S MINUTES JANU Chairman Leland said the general question was regarding the completeness of the plan and that we have not heard back from the Department of Conservation whether the revised plan is adequately specific. Mr. McEnespy said he did not know. Mr. Brown said they are at the planning level of analysis on design levels of detail. He said CEQA does not require engineering and design level of detail for a project description. He said detail can be asked f'or, but does not mean it has to be done even when asked for by a state agency. Don Rogers said there have been accidents on River Road because it is a narrow road. He said they will build a pad on the side and with intense rain water the water will go into the pit and pollute the ground water or go to the properties downstream. He said equipment does leak hydraulic or break fluids, etc. He said the equipment will pollute the ground water in the area and it can not be mitigated, He said the pit will produce water, and where will the water go while the pit is being dug. He asked what assurances there were that the reclamation will ever be done. He asked what would happen if Baldwin sells the property or goes broke. Chairman Leland said a performance bond is provided. Mr. Rogers asked if it was an escalating bond. Mr. Breedon explained the financial assurances that are reviewed every year, Karen Read said that a lady left a note about her asthma and health problems and her name was Cindy Steffen. Ms. Reed said on her own behalf she has witnessed trucks leaking such as garbage trucks, etc. She said Baldwin trucks are different from other trucks on the road because they are heavier. She questioned a light going in at Durham -Dayton Highway and Midway. She was told the cost of a stop light can be rip to $300,000. She was concerned with the EIR referring to no batch plant. She said her understanding ofBaldwin is that if this is approved, Baldwin can come back and put in a batch plant without corning back to the County. Jan Holman said they should take a look at the type of ponds near the over pass in Chico and it is mosquito infested and covered with scum with rotten trees in it. She said when they want to build a house they have to put a driveway into the major road and Baldwin is not planning to do this. She felt Baldwin should pay the full cost of maintaining the roads if this is approved. She said traffic is a problem with this application and it is a bad plan_ Allen Box said he was concerned because he has seen the area grow and businesses that have failed, He discussed pollutants from runoff: He said they do not need trucks and equipment in the area to pollute and make noise. from the reclamation plan regarding the public observation platforms suggested and noted that they could bean attractive nuisance. He discussed the groundwater recharging and wildlife habitat. He said he read an article where the aquifer will be reduced. Mr. Rogers said the Sacramento River is the basin for the Sacramento Valley anda gravel pit one half'mile from the Sacramento River will be a sink hole. He asked how much of the year will the pit be filled with water and how deep before the pit is down to the aquifer. Sharon Wilbeck asked if this is approved can a batch plant be added without further review. Mr. Breedon said there would have to be' a code amendment to allow them. Ms. Wilbeck said she could not find the EIR on the web site. Mr. Breedon said he.would have it put back on the web. Mr. Wannenmacher noted that there has not been external review of the reclamation plan. Chairman Leland said they can have a third party review the reclamation plan or wait until after the conflict with the LCA contract has been resolved.. Mr. Brady said the applicant is willing to pay for a third party to review the reclamation plan. Chairman Leland said he would like to address the reclamation plan and the LCA contract at the next meeting. Commissioner Lambert asked about SMARA addressing the reclamation plan. Mr. Wannenmacher said SMARA will not comment until the LCA issues are resolved. Commissioner Nelson asked about putting this on the next agenda, Mr. Breedon said the contract would have to be amended to cover the cost of a third party review. He said he would need a minimum of 45 days. Mr. Wannenmacher said they have been spending a lot.of time on this project. He said the LCA is a difficult issue. He asked that this go to the first meeting in March. Chairman Leland stated that the Commission cannot make a decision without the third party review on the reclamation plan and this could cause more meetings. He discussed having both issues of the plan and the LCA at one meeting. Mr. Breedon said he would target the March 11, 2004, meeting. It was moved by Commissioner- Lambert, seconded by Commissioner Marin, and unanimously carried to continue this item open to March 11, 2004, to resolve the LCA issues and have a third party review the reclamation plan.