HomeMy WebLinkAboutM AND T CHICO RANCH MINEM&T CHICO RANCH MINE
BUTTE COUNTY, CALIFORNIA
FINAL
ENVIRONMENTAL IMPACT REPORT
Updated Response to Comments
Regarding Williamson Act
State Clearinghouse No. 97022080
Leac CEQA Agency:
County of Butte
Oroville, California
NOVEMBER 2006
RESOURCE DESIGN
T E C H NO L 0 C Y, I N C.
M&T CHICO RANCH MINE
UPDATED RESPONSE TO COMMENTS
REGARDING WILLIAMSON ACT
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5.1.4 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 -ontract.
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 3MARA that
meet the provisions set forth under P.C.C. section 10295.5. This list is generally
referred to as the AB 1 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, a_ -ad 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.
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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 commen-ed 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 deemed a compatible use in any agricultural preserve."
On January 16, 1968 the Butte County Board of Supervisors unanirrously passed
Resolution No. 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.
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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 4.2-6 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 R2nch", which
was not included for review in this document. The DEIR did not cite any
information from the Butte County Assessor documenting why the site was
claimed by the County as Williamson Act Prime, and provided no --eview of the
1997 Kelly and Associates information by NRCS. Without this additional
information, the Department must accept the County of Butte's c-etermination
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
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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 o:- 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
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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. ExHbit A to the
subject Williamson Act Contract provides a list of the permittee 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 Pune 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 Petitio-i for Partial
Cancellation are the same potentially significant environmental impacts analyzed
in conjunction 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.
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Comment 4
In a phone conversation with the County contact for this project, =t was stated
that the Board of Supervisors had passed a resolution that mining with
reclamation to open space or wildlife habitat was compatible with Williamson
Act contracted land. The Department requested a faxed copy of th_s 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 compazbility 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 standa=ds for prime
agricultural land and other agricultural land," without exception i: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 tact.
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.
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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 »he 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. Alte-natively, 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 F -void conflict
between the.County and DOC.
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Butte County Department of Development Services
TIM SNELLINGS, DIRECTOR I PETE CALARCO, ASSISTANT DIRECTOR
7 County Center Drive
Oroville, CA 95965
(530) 538-7601 Telephone
(530) 538.7785 Facsimile,
www.buttecountv.bet
ADMINISTRATION * BUILDING * PLANNING
November 17, 2006
Dear Planning Commissioners and Area Libraries:
The enclosed documents are being provided to you as described in the attached public
notice regarding the M&T Chico Ranch Mine.
A public hearing before the Butte County Planning Commission on the project will be
held November 30, 2006 at 1:30 pm in the Butte County Board of Supervisors Room,
County Administration Center, 25 County Center Drive, Oroville, California.
Documents enclosed are:
Draft Environmental Impact Report dated September, 2002.
■ Final Environmental Impact Report Response to Continents dated
October, 2003 including Revised Response to Comments dated
November, 2006
Reclamation Plan dated September, 2004 and updated November, 2006.
Should you have any questions regarding these documents, please call Dete Calarco,
Assistant Director or Chuck Thistlethwaite, Planning Manager, at 530-538--t785.
PUBLIC NOTICE
BUTTE COUNTY PLANNING COMMISSION
NOTICE OF PUBLIC HEARING FOR THE FINAL ENVIRONMENTAL IMPACT
REPORT AND
M&T CHICO RANCH MINE PROJECT
Notice is hereby given by the Butte County Planning Commission that the Final Environmental
Impact Report (FEIR) and Mitigation Monitoring Plan, Mining Permit and Reclamation Plan (File #
MIN 96-03) for the M&T Chico Ranch Mine will be available for public review, and that a public
hearing is scheduled for consideration of this project at 1:30 p.m., Thursday, November 30, 2006, in
the Butte County Board of Supervisors Room, County Administration Center, 25 County Center
Drive, Oroville, California.
The project consists of a long-term, 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. ReclamEtion 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, east of and partially adjacent to River Road. Access to the site
would be provided by River Road. Assessor Parcel Numbers: 039-530-019, 039-530-020.
This project has been determined to have significant environmental impacts associated with
aesthetics and visual resources, agricultural land, air quality, archeological resources, drainage and
flooding, geology, noise, traffic and circulation, water quality/groundwater, land use, biological
resources, and cumulative impacts associated with air quality and traffic and circulation. Traffic and
air quality impacts are considered significant and unavoidable even with mitigation and will require a
statement of overriding considerations if the project is approved.
In accordance with the California Environmental Quality Act (CEQA), a forty-five (45) day public
review period for the DEIR was previously provided. This review period began on October 10,
2002, and ended November 25, 2002. The Planning Commission had conside-ed certification in
2003; however, an additional issue regarding the. California Land Conservation Act (Williamson
Act) needed to be addressed. As a result, the applicant filed a request for imm,-diate cancellation
from the Williamson Act contract for a portion of the property. The immediate cancellation request
will be considered by the Board of Supervisors at a later date.
Copies of the FEIR will be available for review on November 20, 2006 on the Butte County
Department of Development Services website at www.buttecounty.net/dds/p=anning and at the
Durham Library Branch, Chico Library Branch, the Oroville Library Branch, the Paradise Library
Branch, the Gridley Library Branch, the CSU Chico Library, and for purchase at Kinko's, 1722
Mangrove Avenue, Chico, and the Butte County Department of Development Services, Planning
Division, 7 County Center Drive, Oroville, CA 95965, at 530-538-7601.
The Planning Commission will first consider certification .of the FEIR as consistent with the
requirements of CEQA and then take action on the project. The Planning Commis3ion's decision on
the project maybe appealed to the Board of Supervisors within 10 days of the decision. If you
challenge the project in court, you may be limited to raising only those issues you or someone else
raised at the hearing described in this notice or in written correspondence delivered to the
Department of Development Services, Planning Division, at or prior to, the public hearing.
To be published in the Chico Enterprise Record on November 17, 2006.
BUTTE COUNTY PLANNING COMMISSION
TIM SNELLINGS, DIRECTOR DEVELOPMENT SERVICES