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HomeMy WebLinkAboutTHE M AND T RANCH BALDWIN COMPANY MINING PROJECTJanuary 3, 2007 BUTTE COUNTY JAN 0.5 2006 TO: BUTTE COUNTY PLANNING COMMISSION -QEVEL0pMEf11, Chuck Nelson, Chair • Nina Lambert, Vice Chair Fernando Marin Harrel Wilson Richard Leland BUTTE COUNTY BOARD OF SUPERVISORS Bill Connelly Jane Dolan Maureen Kirk Curt Josiassen Kim Yamaguchi . - cc: Mr. Howard Ellman BUTTE COUNTY ASSESSOR Kenneth Reimers • BUTTE COUNTY COUNSEL Felix Wannamaker DEPARTMENT OF CONSERVATION James Pompy RE: The M & T Ranch/Baldwin Company Nfining Project Dear Members of the Planning Commission and Board of Supervisors: ' This is a request for the- Planning Commission to address the following issues that continue to be unresolved in order to determine once and for all ■ if the. Environmental Impact Report for the proposed M&T/Baldwin mine is accurate and complete and should be certified — and ■ if the resolutions- which you are being asked to vote on accurately and honestly describe the proposed project. Although many of these issues have been previously raised, they certainly have not been t adequately addressed. Issue #1— Inaccurate Information .Mr. Pete Calarco of the Butte County Department of Development Services, at the December 14, 2006 Planning Commission meeting, asserted that the Department of Conservation (DOC) was okay with the reclamation plan. This was misleading information. Leah Miller of the DOC's Office of Mine Reclamation was Pete Calarco's contact. My contact has been Jim Pompy, Director. of Mine Reclamation, who has told me more than once that the reclamation plan had not been okayed and that unless the DOC sent something in writing, their original opinion had not changed (last letter from DOC on this subject was June 10, 2004): When I spoke with Leah Miller after the December 10 meeting, she told me that at no time in her conversation with Mr. Calarco had she said that the DOC was now satisfied with the EIR or the reclamation plan - only that they were satisfied with the "process". In fact, she told me that if anyone was saying that the'DOC had said that they were now satisfied with the reclamation plan that this was quite an exaggeration. How can the Planning Commission make a considered judgment on the adequacy of the reclamation plan if the DOC's position's is not known with absolute certainty? My request is that someone impartial, not just someone in the Department of Development Services; calls Mr. Pompy prior to the next Planning Commission meeting on January 25 to clarify the status of the project. Given the gravity of the situation, and to avoid the possibility of any.further misunderstanding, I suggest a conference call including representatives of the various interested parties, and including Felix Wannamaker. Issue #2 — Compatible with SAL4RA?* While someone is talking to Mr. Pompy about the reclamation plan, they could ask if another statement in their last letter about the project still stands. In their June 10, 2004 letter they said that, "The reclamation plan is incomplete and does not meet the minimum requirements of the Surface Mining and Reclamation Act of 1975 ". A few weeks ago Mr. Pompy told me, and he said I could quote him on this, that unless the County has received something in writing to the contrary, that all of the DOC's comments on this project stand as stated in their letters to the County. In spite of this fact, Finding 5 in Attachment C that you will be asked to approve says that, "The Project complies with the provisions of the Surface Mining and Reclamation Act of 1975". I would request that this be changed to accurately, reflect the DOC's position that this project is not in compliance with SMARA regulations and that the EIR and reclamation plan do not meet the minimum requirements of Surface Mining and Reclamation Act. Issue # 3 In Compliance with CEQA? You could also ask Mr. Pompy if what they said in their November 18, 2002 letter still stands. This DOC letter states that, "The project as proposed violates the Williamson Act, CEQA, and SMARA." Page 1 of Attachment A says, "Adopt the attached resolution certijy-ing the Final Environmental Impact Report as consistent with the requirements of the California Environmental Quality Act. " However, CEQA Section 15147 - Technical Detail — states that, "The information contained in an EIR shall include summarized technical data, maps, plat plans, diagrams, and similar relevant information sufficient to permit full assessment of significant environmental impacts by reviewing agencies ... " And, CEQA Section 15151— Standards for Adequacy of an EIR — says that, "An EIR should be prepared with a sufficient degree of analysis to provide decision -makers with information which enables them to make a decision which intelligently takes account of environmental consequences. " If the DOC says that this EIR and reclamation plan don't have enough information, detail, and design work to meet even the minimum requirements of SMARA then it goes without saying that these documents, almost by definition, would not have the detail required by CEQA for a project of this size and magnitude. I would request that Attachment A be revised to read that the DOC has determined that the FEIR does not contain even the minimum amount of adequacy and completeness required by CEQA; therefore, this Environment Impact report and reclamation plan are not consistent with CEQA requirements. If the DOC says that this project is not in compliance with SMARA and that it's not in compliance with CEQA, can the Planning Division just decide that it is? Issue #4 — Rule -bending Why has Baldwin been allowed to proceed with a permit request designed for a small mine of less than 5. acres when this mine would actually encompass nearly 200 acres? In their June 10, 2004 letter the DOC said, "The Reclamation Plan uses the 'Small Mine Prototype' format from the State Mining and Geology Board's website. The Small Mine Prototype is useful for very small operations (5 acres or less) in areas with negligible . environmental issues. This format is not appropriate for a site of this size and complexity. " Baldwin's response to the DOC is contained in a letter dated September 20, 2004. Baldwin states, "BCC used the reclamation plan format selected by Butte County. " If Butte County. did, in fact, select this inadequate permitting form, why did they do that? And if it isn't so, then why is Baldwin saying they did? Most of us have had. to negotiate the permit process at some point in our property -owning lives and we know how slow and frustrating it can be. Still, we do it because it's part of the rule of law. Why wasn't Baldwin required to fill out the correct form? Is Baldwin being allowed to play by a different set of rules than the rest of us? An inadequate permitting process should be unacceptable and is clearly a shaky foundation on which to base subsequent decisions. Issue #S Withholding of relevant data In February 2006, the Department of. Development Services led by Dan Breedon provided the Land Conservation Act Committee (LCAC) with findings only from the DEIR and from no other source—as to the nature of the soils at the site (the DEIR states that these soils did not meet Williamson Act criteria for prime farmland).. However, Mr. Breedon did not also include for the LCAC other already -known assessments that disagreed with the DEIR which clearly stated that the NRCS, the DOC, and the Butte County Assessor had all come to the conclusion that the soils were prime. So in February of 2006, on the basis of this incomplete and one-sided information, the LCAC voted a motion of intent to release M&T from their Williamson Act contract. After being given the complete information prior to their April 2006 meeting, LCAC member Blake Bailey called the NRCS and they told him that they had recently done a soil survey at the specific project site and they had determined that the soils were prime. Consequently, the LCAC reversed their decision and voted to recommend instead that the M&T people should not be released. from their contract. If there is still any doubt about the proper classification of the soils Ken Reimers, the Butte County Assessor, could answer any questions since he, too, has talked to the NRCS about this issue. Why was available, official information regarding the quality of the soils of the land in question withheld from the LCAC in February 2006 when they were deciding on whether to release the M&T from their Williamson Act contract? We understand that the Board of Supervisors will be the final arbiter in this question once they review this project. However, the Planning Commission and all concerned need to know of this questionable behavior in order to evaluate the soundness of the Development Division's recommendations. Issue #6 — Lack of responsiveness Many of the issues we've mentioned have already been raised with no credible response, and much of the information in Attachments A, B, and C is riddled with misstatements which are represented as facts. Attempts to correct these facts seem to fall on deaf ears. What I see as a lack of responsiveness on the part of the County developers can be usefully characterized by the following blatant examples: Example A If the Planning Division knows the soils are prime why do the resolutions you will be signing say that aren't? In order to approve this project the Planning Commission will also be asked to approve three separate resolutions found in Attachments A, B, and C. Attachment A says, "The project site does not meet the standard for prime farmland. Though the Project will result in the conversion of non prime farmland to open space, the amount of agricultural land surrounding the site is relatively abundant. ....In terms of prime agricultural land loss, no significant cumulative land use impacts are expected as a result of this Project. " -I would respectfully request that this section be changed to reflect the fact that the soils have been determined to be prime by.the Assessor, the MRCS, and the DOC and that there would be significant land use impacts. Both Attachments B and C state, "Land Reclamation — This performance standard does not apply to the Project because it is not located on Prime Agricultural Land. I would also request that these sections be changed to reflect the fact that this land is prime and the performance standards for prime farmland do apply. According to the SMARA code (section 1823.1) the performance standards for prime farmland are as follows: "The objective of this Part is to set forth those soil removal, stockpiling, and replacement operational requirements and revegetation and other reclamation standards for prime farmland to ensure both that the land will have agricultural productive capacity which is equal after mining to premising levels and the land is not lost as an important national resource. Example B Attachment C incorrectly states that, "The proposed lake will actually result in enhanced groundwater recharge from precipitation and evaporation from the shallow groundwater. " This finding even disagrees with the DEIR itself (page 4.4-2), which says that rainfall in the area is about 22 inches a year and evaporation from the lake will be about 52 inches a year. Obviously, if there is more evaporation than precipitation you will end up with less water in the aquifer, not more. This fact was validated in a letter from the DOC dated June 10, 2004 (page 2) where it says, The effect of evaporation of the pond surface would also tend to negate the benefit of arty enhanced recharge to the aquifer. We recommend that recharge not be listed as a beneficial end use for this project." Why have the misstatements on the groundwater recharge capabilities of the lake that would result from the mining operations been allowed to stand when they are so clearly contradicted by the facts? I request that this statement be changed to read that the project would result in a net loss of groundwater recharge capabilities due to fact that there would be more evaporation from the lake than. available average rainfall in the area. Example C Baldwin Construction finally came out with a weir design in August of 2004 showing rip rap clear to the bottom of the creek bed. Yet the resolutions you will be asked to sign still say, "Little Chico Creek will not be disturbed except by the road and conveyor crossings ". When the new information was provided why weren't the documents changed to reflect this? And since this first weir was designed with rip rap, it's very likely that once the weir for the headwaters of the bypass channel is designed it too will have rip rap clear to the bottom of the creek bed. Of course, we have no way of knowing if this is true or not because the bypass channel, one of the key elements of this project, has yet to be designed. I " would request that Section 3706 in Attachment B as well as Section 3706 and 3710 in Attachment C be changed to read that the streambed of Little Chico Creek will be disturbed. in, not one, but possibly two locations. It should also be noted that when Baldwin completed the Reclamation Plan application form they indicated that at no time would the creek bed be disturbed. Because of this, and since not even one State agency knew that this would be part of the weir designs, no agencies have ever gone out to the site to see if there might be any negative environmental issues involved with doing such an incursion into the streambed. This is just another in a long list of reasons why the DOC says that this reclamation plan is incomplete and doesn't meet the minimum requirements of SMARA. Examples such as these suggest, rightly or wrongly, a concerted effort on the part of the Department of Development Services and its consultants to say and word things, whether true or not true, in a way seemingly calculated to influence first the LCAC and now the Planning Commission's vote on this project. If this is merely an impression, it is a sorry one that needs to be rectified. Issue # 7 — The General Plan The General Plan states that the only alternate uses for ag land are those "which preserve, promote, and support agricultural areas" (page AE —14). Obviously, this project would not do that. At the December 14, 2006 Planning Commission meeting Dave Brown gave a power point presentation showing aerial photos of other gravel pit projects that have been approved in other counties.. His presentation left viewers with the impression that what is being proposed here is very common. However; this was just another in a long line of deceptions, smoke and mirrors, and half-truths that have permeated the entire environmental impact process. What Mr. Brown conveniently failed to tell you was that none of those other projects were extracting their gravel from prime farmland, not a single one of them. The fact is that it is not a common practice for other counties to allow mining projects out in prime agricultural land. Why isn't it common? Because other counties realize that projects like this do not belong out in the middle of prime ag land. The original writers of the General Plan would be appalled if they knew what you were thinking about approving. Conclusion The ramifications of approving this project are sobering. Giving your approval to this mine . would. set a precedent that could lead to literally thousands of acres of prime farmland being lost to similar operations. If this project were approved, it would be very hard to tell other gravel companies that they couldn't put a gravel pit out in prime farmland if Baldwin and M&T are allowed to do just that. The people of this County have repeatedly made it clear that they want to preserve prime farmland. Let's not let them down. The DOC is not okay with this project; ® the reclamation plan does not meet SMARA's minimum requirements; it is not in compliance with CEQA and the E1R process has been flawed, biased, incomplete, and inadequate'. Please vote this project down. Sincerely, Ron Jones 3203 Hudson Avenue Chico, CA 95973 345-4286 ronsano@pacbell:net Appendix Below are 10 specific items that the DOC said were deficient in the reclamation plan for the M & T Mining project - areas that Baldwin has definitely not addressed. Statements from the November 18, 2002 Department of Conservation letter: (Baldwin's responses can be found in the FEIN starting on page 5.1=8) (1) Page 5.1-13 — "CEQA Guidelines state that termination of a Williamson Act contract of over 100 acres is treated as a significant environmental impact of statewide significance. Thus the FEIR for this project must show termination of the contract as a significant environmental impact and must provide mitigation for this impact. " Baldwin incorrectly responds that this -is a compatible use under the Williamson Act. (2) Page 5.1-13 — "The adoption of a Statement of Overriding Concerns does not absolve the agency of the requirement to implement feasible mitigation that lessen the project impact. " "The Department recommends mitigation in the form of a permanent agricultural conservation easement on other land of at least equal size and quality as the land removed from the contract. " Baldwin responds again by saying that this is a compatible use under the Williamson Act so they do not need to remove this property from the Williamson Act in order. to mine gravel nor is any mitigation necessary. (3) Page 5.1-17 — "The Reclamation Plan described in the DEIR does not describe how the site will actually be reclaimed, and does not give a detailed description of the open water and wetland habitat to be established... " Baldwin did not respond directly to these issues. (4) Page 5.1-18 — "Nowhere is the shoreline to be created depicted in any detail. " Baldwin has no response to this statement. There are still no detailed drawings indicating where the lake will be nor does it say where it would be in relation to our property line or to the bypass channel. (5) Page 5.1-18 — "The volumes of backfill available for use in creating a diverse shoreline is unstated and unplanned and the slope profiles are generic and non -committal. " Again Baldwin has no response to this statement. (6) Page 5.1-19 -"Reclamation procedures are not presented in sufficient detail to determine the viability of the created wildlife habitat. " Baldwin's response is that this was discussed in the DEIR. Statements from the June 10, 2004 Department of Conservation letter: (Baldwin's responses can be found in a letter to the Department of Development Services dated September 20, 2004) (7) Page 1 — "The Reclamation Plan uses the "Small Mine Prototype " format from the State Mining and Geology Board website. The Small Mine Prototype is useful for very small operations (5 acres or less) in areas with negligible environmental issues. This format is not appropriate for a site of this size and complexity. " Baldwin states that this is the reclamation plan that the County recommended that they use. (8) Page 2 — "There is no detailed engineered design for the bypass channel or weir structure proposed to mitigate most of the floodplain impacts that would result from the placement of a deep mining pit within 100 feet of Little Chico Creek and in proximity of the Sacramento River. This aspect of the reclamation plan is totally lacking and must be addressed prior to the approving the reclamation plan. Even though the DOC says that this needs to be designed before the project is approved, Baldwin's response is that "The weir and bypass channel will, be made conditions of approval of the project. " In other words, they will do the design work and engineering after the project is approved. (9) Page 3 — "Reliance on natural revegetation is not an option under the statewide reclamation standard regulations. Proactive measures to achieve the stated end use must be described in the plan... " Baldwin says that they feel natural revegetation is allowed under state regulations and they don't need to use proactive measures. (10) Page 4 — "..... the plan needs to contain more detailed information concerning the water fluctuation levels and how this would impact the 50 foot wide bench created for the margin habitat. " Baldwin's response is that as they excavate the lake, additional and more detailed information of water level fluctuations will be acquired. Even though the DOC wants this information stated before the plan is approved, Baldwin's response is they will get to it later.