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HomeMy WebLinkAboutEXHIBIT 55.1.4 Department of Conservation The DEIR is inadequate for three reasons that are summarized below, and each is further discussed under separate headings in the remainder of this correspondence. • The DEIR fails to point out that the proposed reclamation would be in conflict, with statutory requirements of the Williamson Act. The property is designated as Prime farmland and is under Williamson Act Contract. Because of the restrictions of the contract, the mined land must be reclaimed to Prime farmland. • The scope of the discussions regarding possible environmental impacts from the project is too narrowly limited. The discussions regarding the environmental setting, ground water hydrology, stream geomorphology, impacts. to fish and wildlife and riparian habitat are incomplete. • The reclamation plan contained in the DEIR is incomplete and does not meet the minimum requirements of the Surface. Mining and Reclamation Act of 1975 (SMARA) (Public Resources Code Section 2710 et.seq.) and the State Mining and Geology Board regulations for surface mining and reclamation practice (California Code of Regulations (CCR) Title 14, Chapter 8, Article 1, section 3500 et seq.; Article 9, section 3700 et seq.). . OMR. publishes a quarterly revised list of mines regulated under SMARA that meet the provisions set forth under P.C.C. section 10295.5. This list is generally referred to. as the AB 3098 list, in reference to the enabling legislation. This section of Public Contract Code places restrictions ,on State agencies regarding from whom they may obtain sand, gravel, aggregates or other minerals. The . project, as proposed,. violates the Williamson Act, CEQA, and SMARA. Deficiencies are discussed in detail below. We recommend that the project not be approved as presented. The Williamson Act clearly requires that when Prime farmland is mined, it be reclaimed to Prime farmland pursuant to the minimum statewide reclamation standard for Prime agricultural land. The reclamation plan proposes to reclaim most of the site to a lake, which is a violation of the Williamson Act and inconsistent with the SMARA standard for reclamation of Prime agricultural land. Until these deficiencies are corrected, the mine cannot be placed on the AB 3098 list. Page 2 Comment 1 WILLIAMSON ACT The land is enforceably restricted by Williamson Act contract, and the Butte County Assessor considers the site Prime agricultural land pursuant to the contract. Historical and current use has been agricultural. The site is surrounded by agricultural use. Proposed reclamation is 40 acres of agricultural land and 193 acres of wetland wildlife habitat, the central feature of which is an open - water pond/lake created from the excavated pit(s). Page 1-4 of the DEIR concludes, "Comments regarding conflicts with Williamson Act contracted lands were considered; the project is not considered in conflict, and no additional mitigation is proposed." This conclusion is not supported by factual information in the . current DEIR, and is incorrect. Both proposed project scenarios (with and without a. batch plant) are incompatible with the Williamson Act. The Department has twice previously commented on this project's incompatibility with the Williamson Act and encloses those comments for reference (April 3, 1997 and July 2, 1998). Response 1 Both the County Williamson Act program and the specific Williamson Act contract at issue allow the proposed surface mining project. Exhibit A to the subject Williamson Act Contract (executed on December 11, 1975 between M&T Incorporated and 'the County of Butte) provides a list of the permitted use on the subject property. Section 7.a. provides: "sand and gravel operation subject to the securing of a use permit approved by the County." Additionally, Section 6.e states the following: "Any other use determined to be a compatible use in all agricultural preserves by the Board of Supervisors after public hearing on ten (10) days published notice and such other notice if any as they may specify. And after, such use be deemeda compatible use in any agricultural preserve." On January 16, 1968 the Butte County Board of Supervisors unanimously passed. Resolution w o. 68-7: Resolution Establishing Administrative Procedures and Uniform Rules Including Compatible Uses for Agricultural Reserves. Sections D.6.e and D.7.a of Resolution No. 68-7 provide exactly the same language as cited above in terms of land .use compatibility on agricultural preserves. Resolution No. 68-7 is attached as Appendix D of this Final EIR. Page 3 The Draft EIR summarizes the conclusions of the Butte County Resolution and Williamson Act Contract and concludes that the proposed .project and reclamation plan are permitted uses. (see page 42-6 of the Draft EIR). This conclusion is valid based on information provided in the Draft EIR and expanded upon in the preceding discussion. However, after circulation of the Final EIR and in response to comments made by the Department of Conservation ("DOC"), the Applicant, and the County began discussions with DOC. While the Applicant. maintains that the proposed Project is compatible with the Land Conservation Contract, on October 11 2005, . the Applicant voluntarily submitted a Petition of Partial Cancellation for a 106 -acre portion of the land. In addition, the property owner —Pac Trust—filed a Notice of Partial Nonrenewal for the 106 acres to be cancelled. The purpose of this Petition for Partial Cancellation was to respond to DOC's comment and avoid conflict between the County and DOC. On November 28, 2005, DOC commented on the Applicant's Petition for Partial Cancellation and concluded that the appropriate findings could be made by the County's Board of Supervisors to support the Petition for Partial Cancellation. Comment 2 Butte County has continuously claimed this site as "Prime" land under the Williamson Act, perhaps relying on the preliminary soils mapping carried out by the U.S. Natural Resource Conservation Service (NRCS), which lists the soils on the site as qualifying for a Prime designation. The NRCS findings are disputed by the DEIR referring to a 1997 Kelly & Associates Environmental Sciences "Memorandum of Prime Farmland Soil Analysis for the M&T Chico Ranch", which was not included for review in this document. The DEIR did not cite any information from the Butte Cotunty Assessor documenting why the site was claimed by the County as Williamson Act Prime, and provided no review'of the 1997 Kelly and Associates information by NRCS. Without this additional information, the Department must accept the County of Butte's determination that this is indeed Prime Williamson Act land. Response 2 The conclusions contained on pages 4.3-20 through 4.3-23 of the Draft EIR regarding soil characteristics and the fact the site's soils are not prime farmland Page, 4 are amplified and clarified in Kelley (2003), which is attached as Appendix B, M&T Ranch Soils, Capability Assessment, of this Final EIR. The fact that the Butte County Assessor's office has classified the entire M&T Chico Ranch to be prime farmland for purposes of taxation is irrelevant in terms of the environmental characterization of the site. M&T Chico Ranch covers about 8,000 acres of which approximately 6,500 acres are actively farmed. About 400 acres of riparian habitat and other unfarmed, nonirrigated areas (including the proposed mine site) occur amid the 6,500 acres of actively farmed ground. The mine area, covering 235 acres; constitutes less than three percent of the entire M&T Chico Ranch property and will have only a limited impact on 'the M&T Chico Ranch in particular, and the County's tax base, in general. The parcel will still be. assessed as prime farmland for taxation purposes and this classification will not impact the physical characteristics of the site. CEQA does not require economic issues to be analyzed in an EIR unless there is a physical change to the environment. .'Here, absent any physical change to the environment, the assessed value or assessor valuation is not relevant and therefore does not mandate a finding that.the site's physical character is prime farmland. Comment 3 Regardless, however, whether the site is Williamson Act Prime or Non -Prime land, the DEIR neither supports nor explains its conclusion" that aggregate mining and processing is a compatible use. While the DEIR states that the original Williamson Act contract for the site allowed mining as a compatible use, contracts must be at least as restrictive as the Williamson Act itself, and meet current compatibility standards. Actual contract .language was not provided in the document. The DEIR accurately quotes Government Code sections 51238.1 and 51238:2, but fails to discuss how the -project will meet the compatibility requirements included in these sections. Our review of the project and these sections concludes that the compatibility findings cannot be met: • Government Code section 51238.1(a)(1) -This section requires that the use will not significantly compromise long-term agricultural capability of the site. Since the site will be mined for up to 30'years, and the resulting pits allowed to fill with water, this test cannot be met. • Government Code section 51238.1 (a)(2) -This section states that the use cannot significantly displace or impair current or reasonably foreseeable agricultural uses. Again, long-term mining and flooded pits will indeed Page 5 displace agricultural uses, so this test cannot be met • Government Code section 51238.2 -This section allows a finding of compatibility for mineral extraction in spite of being unable to meet the above tests if the underlying commitment to preserve prime lands or nonprime lands is not significantly impaired. A 30 -year mining project; with an industrial -type plant site and a . potential asphalt batch plant, and with an eventual return to flooded pits, significantly impairs the' contractual commitments of the Williamson Act. Response 3 The Commenter incorrectly opines that the applicable Williamson: Act Contract does not provide for excavation activities as a compatible use. Exhibit A. to the subject Williamson Act Contract provides a list of the. permitted use on the subject property. Section 7.a. provides: "sand and gravel operation subject to the securing of a use permit approved by the County." Government Code Section 51238.3(c)(1) provides that the requirements of 51238.1 and 51283.2 do not apply to uses that are expressly specified within the contract itself prior to June 7, 1994. The contract, specified above, meets the requirements of Government Code Section 51238.3(c)(1) because: (1) excavation activities are defined as compatible and (2) the contract was executed prior to June 7, 1994: Both Butte County Resolution 68-7 and the M&T Williamson Act Contract allow the Board of Supervisors to approve the proposed end land use of open water/wildlife habitat/agriculture. As discussed in Response 1 above, on October, 11, 2005, the Applicant voluntarily decided to submit a Petition for Cancellation. While the. Project is compatible with the Williamson Act, in order to address DOC's comments and to avoid conflict between the DOC and the County, the Applicant decided to go forward with a Petition for Partial Cancellation With respect to 106 acre area of the project. Any potentially significant impacts associated with this Petition for Partial Cancellation are the samepotentially significant environmental impacts analyzed in conjuiution with the proposed project, the M&T Chico Ranch Mine, including but not limited to the analysis in chapter 4.2 regarding impacts to agricultural land. There are no other potential significant environmental impacts related to the Petition for Partial Cancellation not already analyzed in the Draft and Final EIR. Page 6 Comment 4 Ina phone conversation. with the County contact for this project, it was stated that the Board of Supervisors had passed a resolution Jhat mining with reclamation to open space or wildlife habitat was compatible with Williamson Act contracted land. The Department requested a faxed copy of this resolution, but has not received it and cannot comment specifically on its merits. The DEIR does not provide any information about this resolution or its relevance to the project's compatible use. As stated in our previous comments, the primary .. purpose of the Williamson Act and its contract restrictions is the protection and preservation of land'for "agricultural use. The principles of compatibility noted: above, which must be followed in approving compatible uses, are specifically drawn to preserve land for agricultural use. Reclamation plans for approved mining operations must comply with SMARA "performance standards for prime agricultural land and other agricultural land," without exception (Government Code section 51238.2). Therefore, it would appear that the Board's resolution, as described in general terms, may be in conflict with the Williamson Act. Response 4 Page 4.2-6 of the Draft EIR discussed. the relevance of Butte County's Resolution 68-7 by stating that the ordinance established administrative procedures and . uniform rules, including compatible ' uses for agricultural preserves. The Draft EIR further discusses the fact that the ordinance uses the same language as the Williamson Act contract for the M&T Ranch site in identifying sand and gravel operations as a permitted land use. As noted in Response 1, Resolution No. 68-7 is attached as Appendix D of this Final EIR. In addition, as discussed in Responses 1 and 3, above, the Applicant has voluntarily filed a Petition of Partial Cancellation for a 106 -acre portion of the land in response to DOC's comments and to avoid conflict between the County" and DOC.. Page 7 - t Comment 5 Regarding the project's potential proposal. to place: a batch plant on-site, the Department has determined that such a facility does not benefit from the relaxed requirements of Government Code section 51238.2 and is not a compatible use on land under Williamson Act contract. Neither an amendment to .the County's General Plan nor a change in zoning, which are. contemplated in the DEIR as methods to gain eventual approval for the batch plant, can subvert the provisions of the Williamson Act. Response 5 The Draft EIR makes clear that the "With Batch Plants Scenario" is not permitted on the site at this time. Section D.6.e of Resolution No. 68-7 provides the County Board of Supervisors an opportunity to add compatible uses in Agricultural Preserve areas. Therefore, while not a compatible use under the ordinance at . this point, such a scenario may be permitted in the future. Comment 6 Because this project does not. meet the statutory tests for. compatibility under the Williamson Act;. we recommend that non -renewal be' initiated, which would allow the project to proceed after the project is no longer under. the enforceable restrictions of the Williamson Act. Since the proponents originally proposed this project in 1997, non -renewal should have begun at that time. Alternatively, the Applicant could file for contract cancellation if the project meets the cancellation findings contained in Government Code .section 51282. Notification of a petition for cancellation must be provided to the Department pursuant to Government Code section 51284.1, and the Department's comments must be considered prior to action on the petition. Response 6 As the proposed project is compatible with the Williamson Act Contract in effect on the site, non -renewal or cancellation are not required. However, as explained above, the Applicant has voluntarily filed a Petition of Partial Cancellation for a 106 -acre portion of the land to address DOC's comments and avoid conflict between the County and DOC. Page 8