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HomeMy WebLinkAboutM AND T CHICO RANCH MINE PROJECT OUR FILE NO 2941:002JOHN Y. -JACK- OIEPENBROQ JEFFREY L ANDERSON KAREN L DIEPENEROCK MICHAEL E. YIHDING In KEITH W. MsBRIDE JENNIFER L DAUER BRADLEY J. ELKINMATTHEW L BERRIEN SHEENM. OSEPENBRO01 SEAH IC HUHGERFORD NARK D. NARRUON LEONOR T. DIGICAN GENE L 0111YER CBS A. MdWLESS d i e p e n b ro ck.. h a r r i son MICHAEL Y. BRADY JEFFREY L DURSO LAWRENCE B, GARCIA DAN M. SILYERBOARD A PADFESSIURAL CORPORATION SUSAN E.KIRRGAABD ANDREW P.TAIINAINEN ANDREA A. MATWnO BTAIR W. WILL t JOEL PATRICK ERB KREA J. OUNLWEILER JON D. RUSIN DAVID L RICE JENVER D. Emu L JAMES OIEPENBROOC SARAN L NAUMANN poly-Im HARK E. PETERSON t December 13, 2006 Chuck Nelson, Chair. Nina Lambert, Vice Chair, Fernando Marin Richard Leland Harrel Wilsori Butte County'P'lanning Commission 7 County Center Drive Oroville; CA 95965 ` Re: M&T Chico Ranch Mine Project Our File No.: 2941:002 To Members of the Planning Commission: . This'letter responds to the issues raised in the December 11, 2006 letter ("Parrott Letter") submitted to the Butte County ("County") Planning Commission ("Planning Commission") by Howard Ellman on behalf of Parrott Investment Company, the owner _ of Llano Seco Ranch. The Parrott Letter, aside from certain inflammatory statements, revisits previously addressed .questions and assertions that the County has exhaustively analyzed and addressed during the course: of the eleven (11) year review of the M&T Chico Ranch Mine ("Project"). 1. The- Proiect is Consistent with the Applicable Land Use Designations and Surrounding Uses. The Parrott Letter's'first assertion, distilled to its core, is that the Project is incompatible and inconsistent with the applicable General Plan designation and that the use would be "unreasonably incompatible, with, or injurious to, surrounding properties." (Citing Butte County Code § 24-45.10.) ; To the contrary, surface mining is expressly recognized in all relevant County planning documents as a compatible and consistent use expressly allowed within 400 CAPITOL MALL SUITE 1800 SACRAMENTO, CA 95814 WWW.DIEPENBROCK.COM 916 492.5000 IAA: PIA 446.4535 DIEPENBROCK HARRISON Members of the Planning Commission December 13, 2006 Page,2, agricultural areas. This is reflected in the exhaustive analysis contained in the draft environmental impact report ("DEIR"), and final environmental impact report ("FEIR"), which were prepared by the County pursuant to the California Environmental Quality Act, Public Resources. Code section 21000 et seq. ("CEQA" ). As part of the CEQA process the County evaluated the proposed Project's consistency with the County General Plan (DEIR, pp. 4.2-2 — 4.2-5, 4.2-9), and the Project's potential environmental impacts on agricultural uses (DEIR, p. 4.2-5 — 4.2-7) and wildlife. (DEIR, § 4.7.) The General Plan designation for the Project site is "Orchard and -Field Crops." (DEIR, p. 4.2-3.) The Land Use Element of the General Plan sets forth the types of uses allowed in this designation. The General Plan states: Primary Uses: Cultivation, harvest, storage, processing, sale and distribution of all plant crops, especially annual food crops. Secondary Use: Animal husbandry and intense animal, uses, resource extraction and processing, hunting and water -related recreation facilities, dwellings, airports, utilities, environmental preservation activities, public and quasi -public uses, home occupations. (General Plan Land'Use Element, section 2.6, p. LUE-48 (emphasis added].) The General Plan defines secondary uses as compatible uses which are conditionally allowed.(U.) Further, the General Plan sets forth the following policies in regards to surface mining operations within the County: 2.6a Encourage extraction and processing of identified deposits of building materials and other valued mineral resources. 2.6b Encourage the reclamation of lands subject to mineral extraction. (County General Plan Land Use Element, p. LUE-32; DEIR, p. 4.2-5.) The Project is plainly consistent with these policies. Further, as evidenced by the express language of the General Plan, this Project is also consistent with agricultural uses such as "cultivation, harvest, storage, processing, sale, and distribution of all plant crops" and, DIEPENBROCK HARRISON Members of the Planning Commission December_ 13, 2006 Page 3 notably, "environmental preservation activities (General Plan Land Use Element, section. 2.6,'p. LUE-48.) The Parrott Letter speculates that the Project will have negative impacts on the agricultural and wildlife settings surrounding the Project site. The County evaluated potential impacts to agricultural uses in the DEIR, stating: Impacts on Agricultural Uses Potential impacts to agriculture are visual incompatibility, loss of farmland, and the generation of dust resulting from the excavation, mining, and processing of aggregates. The proposed project will generate dust, as described in Section 4.5, Air Quality. However, dust generation associated with. agriculture is substantially greater than that of the proposed project. Mitigation measures proposed for Impact 4.5-1 " - further mitigate dust generation to a less than significant level. Proposed mining and reclamation activities would be similar in scope and equipment used when compared to ongoing large-scale agricultural operations on other portions of the project site and surrounding areas. The project would -not result in the presence of large numbers of people in the area who might damage or pilfer crops. (DEIR, p. 4.2-7 [emphasis added].) The County concluded that, with the proposed Mitigation, the Project is compatible with the existing and planned.uses in the vicinity of the Project site. (DEIR, p. 4.2-8 — 4.2-9.) The FEIR addressed this issue again in its response to comments. _The FEIR states in relevant part: Compatibility with Surrounding Land Uses Several commenters opined that the proposed mining project and reclaimed use of the property are incompatible with the surrounding land uses. One commenter concluded: "The DEIR reaches the wrong conclusion regarding compatibility with existing and planned land uses in the vicinity." ... Impact 4.2-2 and its discussion on Draft EIR page 4.2-9 consider the fact that the without batch plants DI.EPENBROCK HARRISON Members of the Planning Commission December 13, 2006 Page 4 scenario is consistent.with Butte County's existing interpretation of the Butte County Zoning and Mining Ordinance and General Plan requirements. (FEIR, p. 4.0-29.) In addition to agriculture, the County conducted an extensive analysis of the Project's impacts to wildlife and wildlife habitat. The County concluded that the proposed Project's impacts to wildlife and wildlife habitat, with the identified mitigation measures, would be less -than -significant. (DEIR, p. 4.7-27 — 4.7-36.) In particular, the County concluded: Most wildlife species inhabiting the site are common to the area and many arealso colonizers, which specialize in disturbed habitats. These species are often characterized by certain life -history patterns such as. short life -spans, reproduction at an .early age, high natality, and efficient use 'of resources. It is thus, likely that while some shifts in certain populations may occur as a result of mining activities, these species will recover rapidly in available habitat and will remain common in adjacent, intact habitats. • i The wildlife inhabiting the site is also subject to continual disturbance from agriculture: This, in addition to the fact that mining will occur over a 20 to 30 -year period, during which animals will probably become inured to the noise (short- generation time species will never be exposed to less noisy conditions), suggests that wildlife will not be adversely affected by mining noise. Riparian channels and woodlands are the most important corridors associated with the site and will be unaffected by mining activities. Consequently, mining operations are not likely to block unique or important corridors for movement (e.g., dispersal, migration) or impede gene flow. Furthermore, there are no paved roads to be crossed, in order to avoid the mining activities, so mortality due to site avoidance should not occur. (DEIR, p. 4.7-29.) DIEPENBROCK HARRISON Members of the Planning Commission December 13, 2006 Page 5 The FEIR also addressed inquiries regarding the Project's impacts on wildlife and wildlife habitat. (FEIR, pp. 5.4-49 5.4-50.) The FEIR explained that special -status species known to occur in the vicinity of and in habitats similar to the Project site will continue to use the suitable habitats available to them, whether on or off the Project site, and whether or not the Project is approved. (FEIR, pp. 5.4-49 — 5.4-50.) The FEIR explained: The proposed project will not block any wildlife migration routes, nor will access to food, water, and cover be preempted by the project. Although the habitat will change on the 193 acres, to be occupied by the -pit, this is a small change when view in a regional context. It should be noted that the habitat that will be lost (193 acres excavated for the pit and 40 acres cleared for the processing area) consists of non-native grassland and dryland agriculture habitat. Annually tilled or planted land has substantially less wildlife value than does native habitat because. of the relatively high disturbance levels and poor structural diversity and species richness of the former. (FEIR, p. 5.2-21.) In summary, the exhaustive,environmental analysis, conducted by the County, as contained in the DEIR and FEIR, demonstrate that the Project is consistent with the County General Plan and County Code, and that the County satisfied the requirements of CEQA in its analysis. 2. The DEIR and FEIR Contained an Adequate Environmental Setting Pursuant to CEQA. The Parrott Letter asserts that the DEIR provided an inadequate description of the Project's environmental setting because it omits reference (by name only) to the Llano Seco Ranch. (Parrott Letter, pp. 3-4.) CEQA requires that an EIR contain, among other things, a description of the "environmental setting" in which the proposed project would be undertaken. (Cal. Code Regs., tit. 14, §§ 15120, 15124, 15125.) Under CEQA Guidelines section 15125, an appropriate discussion of a project's environmental setting includes a description of the physical environmental conditions in the vicinity of a project, and an analysis of any inconsistencies between the project any applicable general or regional plans. (Cal. Code Regs., tit. 14, § 15125.). DIEPENBROCK HARRISON Members of the Planning Commission December 13, 2006 Page 6 Here, the EIR included an intensive discussion of the Project's environmental setting. (DEIR, pp. 3-1 — 3-7, 4.1-1 — 4.1-8.) Each section contains a description of the regional environment and local conditions and how the Project could impact the local and regional environment. (See e.g., DEIR, 4.3-1 — 4.3-7 [Geologic Setting]; 4.4-1 — 4.4-35 [Hydrologic Setting]; 4.5-1 — 4.5-14 [Traffic Setting]; p. 4.2-5 [Farmland]; 4.7-1 — 4.7-22 [Wildlife and Wildlife Habitat].) All potentially environmentally significant impacts, both on site and off site were analyzed. For example, the DEIR and FEIR contained an exhaustive study on the environmental impacts of flooding to the surrounding areas. Thus, while the DEIR did not specifically name the Llano Seco Ranch, it did describe the regional environmental setting for the Project and it analyzed all reasonably foreseeable significant impacts associated with the:Project, including off-site impacts, as required, by CEQA. 3. , The Purpose of the Reclamation Plan is to Create Waterfowl Nesting and Foraging Habitat The Parrott Letter alleges that the Project will result in thirty to forty years of "environmental devastation." (Parrott Letter, p. 2.) This allegation, aside from agitating, is a factual misstatement that ignores the administrative record and the clear purpose of the Reclamation Plan. As planned, reclamation will occur concurrently with mining. Therefore, beginning in Year Five (5) of the Project, Baldwin Contracting Company, Inc. ("Baldwin") will begin reclamation activities, which will include the formation of wildlife habitat. The Reclamation Plan explains: The intent of the reclamation efforts will be to maximize waterfowl nesting and foraging habitat, minimizing interference from human transgression, and provide habitat - supplementing wetlands lost in the Central Valley to other types of land conversion. Reclamation of the mining.area cannot commence until sufficient area exists that is no longer being affected by mining activities. This initial development period is expected to last about 5 years. After that, an average of about 600 lineal feet of lake perimeter will be reclaimed each year. - (Reclamation Plan, p. 34 [emphasis added].) Thus, while it is unclear why the Parrott l6vestment Company opposes the creation of a neighboring high quality wildlife habitat, it is clear that the Parrott Letter's statement that the Project will result in a "30-40 year disruption" is factually inaccurate. DIEPENBROCK HARRISON Members of the Planning Commission Deceniber.13, 2006 Page 7 4. The DEIR and FEIR Adequately Describe Flood Impacts on the Surrounding Landowners. The Parrott Letter asserts that "the EIR does not adequate describe the flood impacts on the neighbors due to the flood protection measures proposed around the gravel mine:" '(Parrott Letter, p. 4.) Again, the Parrott Investment Company ignores the factual evidence in the administrative record, and the efforts of the County over the previous 11 years. During the CEQA process, the County, recognizing that 'adjacent landowners were concerned about increased flooding resulting from the Project, noted: The principal concern related to flooding is that the [Project] could result in increased flood depths elsewhere in the vicinity of the Project. (DEIR, p. 4.4-73.) Accordingly, the County included an extensive analysis of potential off-site impacts caused by the Project's flood control design. (See NorthStar Flooding Study; DEIR, pp. 4.4-75 —4.4-76; FEIR § 4.7-4.) • The DEIR concluded that, with appropriate mitigation, potential environmental impacts to adjacent landowners resulting from the flood design would be less than significant. (DEIR, p. 4.4-76.) The DEIR noted that the purpose of these measures was to mitigate off-site impacts, including impacts to River Road, the Jones' parcel, and the Sacramento River floodplain. (DEIR, p. 4.4-76.) The County addressed comments on this issue in the FEIR. Relevant excerpts from the FEIR are as follows: Concerns regarding the earthen berm redirecting floodwaters are not an issue because of Mitigation Measure 4.4-7c of the Draft EIR, which states: "Applicant shall install a bypass channel to convey flows formerly conveyed by the distributary channel around the proposed pit area. The overflow weir and adjoining bypass channel will be designed such that elimination of the distributary will not result in increased flooding depths or duration to the Jones' parcel. The bypass channel shall maximize, to the extent possible, use of native plant materials in the design to control erosion. Plans shall be approved by Butte County prior to construction." DIEPENBROCK HARRISON Members of the Planning Commission December 13, 2006 Page 8_' (FEIR, p. 5.4-33.) . The FEIR further states, in relevant part: Mitigation Measures 4.4-7a, b, and c (pages 4.4-75 of the Draft EIR) spell out the specific measures the County is imposing on the project to implement NorthStar's flood' prevention recommendations. These mitigation measures will eliminate additional flooding effects on adjacent property owners. (FEIR, § 4:7-4, p. 4.0-35 [emphasis added].) As such, the County expressly analyzed and addressed the issue of flood impacts to adjacent landowners both in the DEIR and the FEIR. 5. There is Substantial Evidence to Support Approval of the Project. The Parrott Letter confuses the role of substantial evidence in the CEQA process. Under CEQA, a lead agency's findings must be supported by substantial evidence in the record. (Pub. Resources Code, §§ 21168, 21168.5.) Section 15384 of the CEQA Guidelines defines substantial evidence as follows: (a) "Substantial evidence" as used in these guidelines means enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, -even though other conclusions might also be reached. Whether a fair argument can be made that the project may have a significant effect on the environment is to be determined by examining the whole record before the lead agency. Argument, speculation, unsubstantiated opinion or narrative, evidence which is clearly erroneous or,inaccurate, or evidence of social or economic impacts which do not contribute to or are not caused by physical impacts on the environment does. not constitute substantial evidence. (b) Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion supported by facts., DIEPENBROCK HARRISON Members of the Planning Commission December .13, 2006 Page 9 (Cal. Code Regs., tit. 14, § 15384 [emphasis added].) California courts interpreting CEQA have concluded that "generalized concerns and fears" about a project's impacts do not rise to the level to support an argument that a proposed use will create a substantial or potentially substantial adverse change in the environment. (Lucas County Homeowners Association (1991)- 233 Cal.App.3d 130, 163.) Here, however, the question is not whether speculation by members of the public amounts to substantial evidence, but whether there is substantial evidence to support the decision of the Planning Commission to certify the EIR. Based on the substantial evidence in the record; the exhaustive analysis of the. DEIR and FEIR, and the lack of any significant new information, I respectfully request on behalf of Baldwin that the Planning Commission certify the FEIR, and approve the conditional use permit, Reclamation Plan, and financial assurances. Very truly yours, DIEPENBROCK HARRISON A Professi�pal-ft�poration cc: Pete Calarco Rene A. Vercruyssen Rene J. Vercruyssen Jeffrey J. Carter K. Dorso "