HomeMy WebLinkAboutTPM14-0005_Supplement Agenda Report_response to comments_Final Department of Development Services Tim Snellings, Director
Pete Calarco, Assistant Director
7 County Center Drive T: 530.538.7601
Oroville, California 95965 F: 530.538.7785 buttecounty.net/dds
DATE: April 28, 2016
TO: Butte County Planning Commission
FROM: Rowland Hickel, Senior Planner
SUBJECT: Supplemental Agenda Report – Brian Airehart (Kromer) TPM14-0005
Executive Summary
The County received two public comment letters on March 23, 2016, a day prior to the
scheduled hearing for Tentative Parcel Map TPM14-0005 (Brian Airehart (Kromer)) on March
24, 2016. At the conclusion of the March 24, 2016 public hearing, the Planning Commission
adopted a motion of intent to approve TPM14-0005, subject to staff’s completion of a
memorandum memorializing responses to the additional comments received. Due to the
length of these comments, the Planning Commission continued the March 24th hearing to April
28, 2016.
The comments address the project generally, so they include both CEQA comments, as well
as other project related comments. During review of these comments, it was discovered that
an error had been made in the preparation of the Draft Initial Study/Mitigated Negative
Declaration. In response, Staff prepared a revision to the document. A finding supporting the
revision was subsequently added to the draft Planning Commission resolution.
Recommended Action
1. Adopt the Mitigated Negative Declaration, prepared pursuant to the California
Environmental Quality Act, as corrected; and
2. Approve Tentative Parcel Map TPM14-0005, subject to the conditions and findings
recommended by staff.
Revision to the Draft Initial Study/Mitigated Negative Declaration
In response to comments on the Draft Initial Study / Mitigated Negative Declaration (IS/MND),
corrections and clarifications were made to the document. In each case, the revised page and
location on the page is presented, followed by the textual or tabular revision. Underline text
represents language that has been added. Text with strikethrough has been deleted.
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The revisions shown provide clarification to the conclusions made in the Impact Analysis in
Section 4.2(e). The analysis concluded that there was a ‘Less than significant impact’;
however, ‘No Impact’ was inadvertently stated. The revisions do not constitute a substantial
revision, and therefore, do not require recirculation of the Draft IS/MND, pursuant to CEQA
Guidelines §15073.5 [Recirculation of a Negative Declaration Prior to Adoption].
1. Page 7 of 49 is amended as follows:
Would the proposal: Potentially
Significant
Impact
Less Than
Significant
with
Mitigation
Incorporated
Less Than
Significant
Impact
No
Impact
Reviewed
Under
Previous
Document
e. Involve other changes in the existing
environment which, due to their location or
nature, could result in conversion of
Farmland, to non-agricultural use or
conversion of forest land to non-forest use?
2. Page 10 of 49 is amended as follows:
e.) Less than significant impact. No impact.
Comments and Responses
The County had received five public comment letters when the application was originally
circulated for review in 2014. These letters were reviewed, with a response having been
provided in the March 24, 2016 Planning Commission Agenda Report. Two additional
comment letters were received on March 23, 2016 (see attached). To ensure that all
comments are reviewed and appropriately addressed, the hearing was continued to April 28,
2016, providing Staff and the Planning Commission a sufficient opportunity to review these
comments. Each comment in each of these letters has been assigned a number. Responses
to individual comments are numbered to correspond to the appropriate comment in each letter.
AquAlliance comment letter of March 23, 2016
AA-1: As discussed in the Draft Initial Study/Mitigated Negative Declaration, County
staff performed a two-mile radius search around the project site with the use of
the California Natural Diversity Database (CNDDB) to identify any special-status
species that may be impacted by the project. The search identified seven
species whose presence was known to occur in the area. Only one of these
species, the Western Burrowing owl, had the potential to inhabit the project site.
To address the project’s potential impact upon the Western Burrowing owl, a
mitigation measure (MM #2) has been recommended. The measure requires the
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applicant to hire a qualified biologist to perform surveys on the project site, if
construction activities occur during the specified nesting season. If Western
Burrowing owl is found to be located within the project site, the MM #2 also
requires the applicant/developer to implement appropriate measures to protect
the species. Adoption of this mitigation measure would ensure that potential
impacts on special status species within the area would be less than significant.
In addition to the CNDDB search and the proposed mitigation measures,
requests for comments were sent to the California Department of Fish and
Wildlife (CDFW) and the United States Fish and Wildlife Service (USFW). The
CDFW replied that they have no comment for the project. No response was
received from USFW.
AA-2: The proposed project is consistent with general plan policies concerning the
Chico Area Greenline, and Staff evaluated the proposed project’s consistency
with these general plan policies on page 6 of the March 24, 2016 Agenda Report.
The proposed project is consistent with the zone (Very Low Density Residential,
2.5 acre minimum parcel size) and the land use designation (Very Low Density
Residential) for this property; which had been previously analyzed in the
previously certified Environmental Impact Report (EIR) prepared for General
Plan 2030 and Supplemental Environmental Impact Report (SEIR) prepared for
the Zoning Ordinance. General Plan 2030 and the associated EIR provided an
extensive review of the Chico Area Greenline, establishing Land Use Goal LU-
13, which states “Plan for growth and protect agriculture in the Chico area
through the Chico Area Greenline”. Several policies (LU-P13.1 to LU-P13.10)
were adopted to implement this goal, including Policy LU-P13.4, which specified
the land use designations allowed on the “Agricultural Side of the Chico Area
Greenline”, allowing for both the Very Low Density Residential and the Rural
Residential designations.
The Environmental Impact Report adopted for General Plan 2030 provided
background information and an impact analysis about the Chico Area Greenline
and its associated land use policies for the decision-makers and the public, prior
to policies having been adopted. The EIR indicated that approximately 4,700
acres of Farmlands of Concern would be converted to non-agricultural zones. It
was noted that the parcels making up the 4,700 acres are small and no longer
viable to conduct agricultural activities. Also, that many of the parcels are located
close to existing urban areas, making these parcel appropriate locations for
future growth. The EIR concluded that the conversion of agricultural land
anticipated with the adoption of General Plan 2030 would be significant and
unavoidable, and the Board of Supervisors made findings of overriding
considerations related to this impact.
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The applicant’s proposal is consistent with the zoning for the property and the
policies adopted to protect the Chico Area Greenline. Analysis of the project’s
consistency with zoning and the General Plan are included in the March 24, 2016
Agenda Report. With no impacts to the Chico Area Greenline having been
identified, no additional analysis is required under CEQA.
AA-3: The project description includes application of a 300-foot agricultural buffer from
the northwestern property line, made pursuant to Butte County Code §24-81 et
seq., and a 50-foot residential setback from the western property line, pursuant
to Butte County Code §24-56.1. Application of this buffer and setback between
future residential uses and adjacent existing agricultural uses would ensure that
there are less than significant impacts between the incompatible uses. As a
result, no mitigation measures or EIR is required.
General Plan 2030 supports this conclusion with the goals, policies, actions and
regulations adopted to reduce conflicts between agricultural operations and
residential uses, which include Policy AG-P5.3 (Agricultural Buffer), Policy AG-
P5.3.2 (Residential Setback), and related regulations. The General Plan 2030
Environmental Impact Report, adopted in 2010, and the Supplemental
Environmental Impact Report (SEIR) prepared for the General Plan 2030
Agricultural Element Policy AG-P5.3 amendments, adopted on January 12,
2016, evaluated programmatic impacts of these measures, concluding that
implementation would avoid changes to the agricultural environment that would
occur with the establishment of residential uses adjacent to agricultural uses,
resulting in less than significant impacts.
With no additional evidence of significant impacts to the environment having
been presented by the commenter, no additional analysis in the IS/MND is
required.
AA-4: The Initial Study prepared for the proposed project concludes that groundwater
usage will have a less than significant impact on the underlying aquifer, and
would not result in a substantial reduction of the water table. This conclusion is
supported by Butte County Environmental Health’s pre-application review of
historical groundwater availability in the area.
General Plan 2030 and the associated Environmental Impact Report included
several actions and policies to address groundwater supplies and sustain
groundwater resources. Butte County also has adopted the Butte County
Integrated Water Resources Plan and Butte County Groundwater Management
Plan, and has performed an analysis of long-term water usage and supplies with
the 2001 Butte County Water Inventory and Analysis. The findings contained in
these reports, together with the application of these existing policies and plans,
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led Butte County to conclude that the growth anticipated with General Plan 2030
would have a less than significant impact to groundwater supplies.
The project’s less than significant impact on groundwater supplies is further
supported with a review of the 2001 Butte County Water Inventory and Analysis.
Based on this study, a normal year’s groundwater demand in the Vina Subbasin
is approximately 138.2 thousand acre-feet. Agriculture is the largest user of this
groundwater at 71 percent; whereas, urban development use the least amount
of groundwater with only 4 percent. A typical single-family household in the
Chico area consumes approximately 0.5 acre-feet per year.1 With four new
single-family households anticipated with approval of the project, the total water
consumption would be approximately 2 acre-feet per year, or .0000014% of the
annual water consumption of the Vina Subbasin. This project’s anticipated water
consumption may even be lower considering that proposed uses would offset the
parcel’s historic groundwater usage when agricultural uses were present. As a
result, the proposal to create four parcels for single-family residential
development would not significantly reduce groundwater levels, causing the
underlying aquifer to become substantially lower.
No substantial evidence2 has been provided that reveals the creation of four new
parcels would result in a physical impact to the environment, and would
substantially deplete neighboring wells. Analysis of the groundwater basin and
anticipated water usage of the project supports a finding of a less than significant
impact. Additionally, the water demand anticipated with build-out of the project
area, including the project site, was previously evaluated in the General Plan
2030 EIR [Pg. 4.8-23 & 4.8-24], finding that current and projected demands for
water can be met with existing water supplies. Absent substantial evidence to
indicate significant impacts to the environment, no additional analysis in the
IS/MND is required.
AA-5: The Initial Study/Mitigated Negative Declaration provided an analysis of the
groundwater quality, including the potential for nitrate contamination from septic
systems [IS/MND, Sec. 4.9 (a), Pg. 31]. The IS/MND concluded that septic
systems constructed on the resultant parcels would have a less than significant
impact to groundwater resources. This conclusion is supported by the pre-
application review made by Butte County Environmental Health, which evaluated
the soil conditions of the site and determined that conditions are adequate to
1 0.5 acre-feet/year for a single-family household (California Water Service Company 2010 Urban Water
Management Plan, Chico-Hamilton City District).
2 CEQA Guidelines §15064(f)(5) - Argument, speculation, unsubstantiated opinion or narrative, or evidence
that is clearly inaccurate or erroneous, or evidence that is not credible, shall not constitute substantial evidence.
Substantial evidence shall include facts, reasonable assumptions predicated upon facts, and expert opinion
support by facts.
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install septic systems. Additionally, construction of septic systems are statutorily
required to obtain an On-site Wastewater System Construction Permit from
Environmental Health. Once issued, compliance with the permit conditions
would ensure that systems are designed and installed in accordance with
Chapter 19 requirements which have been accepted by the Central Valley
Regional Water Quality Control Board as a program for on-site wastewater
systems that are adequately protective of water quality.
General Plan 2030 and the associated Environmental Impact Report also
addressed the issue of nitrate contamination in groundwater resources
generated with full build-out of the plan. General Plan 2030 included policies
PUB-P13.2 and PUB-P13.3 for new development planning on using a
wastewater treatment system and on-site wastewater system. The General Plan
and EIR concluded that developments that are designed to meet County and
RWQCB standards would avoid cumulative impacts with build-out of the plan.
Therefore, developments that are found to be consistent with these policies
would result in a less than significant impact.
PUB-P13.2: New development projects shall demonstrate the availability of a
safe, sanitary and environmentally sound wastewater system.
PUB-P13.3: For development projects that will rely on on-site wastewater
systems, applicants shall provide detailed plans demonstrating
that the system will be adequate to serve the project.
AA-6: Butte County, in its role as lead agency for the proposed project, and through the
course of review of the project, has not identified any potentially significant
impacts to the environment. The issues raised have been adequately addressed
in the IS/MND, as well as in the March 24 and April 28, 2016 Planning
Commission Agenda Reports. Further, no substantial evidence has been
provided beyond what had already been evaluated in the Initial Study to indicate
that potentially significant impacts on the environment may occur.
AA-7: The IS/MND prepared for the proposed project is in compliance with CEQA
Guidelines, including §15063 [Initial Study] and Article 6 [Negative Declaration
Process]. An explanation for determining whether a project may have a
significant effect, thereby triggering a lead agency to cause preparation of an EIR
can be found under CEQA Guidelines §15064 [Determining the Significance of
the Environmental Effects Caused by a Project]. Absent substantial evidence to
indicate that a potential impact may exist, the IS/MND adequately fulfills the
requirements of the California Environmental Quality Act.
Minasian, Meith, Soares, Sexton & Cooper, LLP comment letter of March 22, 2016.
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MM-1: See response to comment AA-2.
MM-2: The project will not result in the direct loss of agriculturally zoned lands, as the
property is zoned residential. General Plan 2030 and its associated
Environmental Impact Report evaluated the loss of acreage when the property
was redesignated from “Orchard and Field Crop” to “Very Low Density
Residential” in 2010. At that time, the Butte County Board of Supervisors
approved General Plan 2030 and the EIR, adopting a Statement of Overriding
Considerations supporting the County’s action.
The project will also not result in the indirect loss of adjacent agricultural lands
because the applicant has incorporated required agricultural buffers from the
northern boundary of the project site in accordance with Article 17 (Agricultural
Buffers) of Chapter 24 of Butte County Code, and residential setbacks from the
western boundary in accordance with Butte County Code §24-56.1 (see
response AA-3). Implementation of the residential setback to protect adjacent
existing agricultural uses located in the VLDR-2.5 zone would reduce the
potential of undermining existing agricultural operations. As the project is
consistent with the VLDR designation and applicable goals and policies of
General Plan 2030 (including but not limited to the Chico Area Greenline), and
requirements of the VLDR-2.5 zone in which the subject property is located, it
does not represent a growth-inducing impact as defined by Section 15126.2(d)
of the CEQA Guidelines3.
MM-3: As indicated in the beginning of this report, a correction to the IS/MND
concerning 4.2e has been made to delete the selection of No Impact and to select
Less than Significant. This comment fails to acknowledge the analysis provided
in the IS/MND. As stated in the IS/MND:
“The proposed project includes a 300-foot agricultural buffer that will
be established from the northwestern property line, pursuant to
Section 24-81 et seq. of the Butte County Zoning Ordinance, and a
50-foot residential setback will be established from the western
property line of the project site, pursuant to Section 24-56.1 of the
Butte County Zoning Ordinance. The 50-foot residential setback is
proposed along the portion of the western property line that does
not include the proposed 60-foot right-of-way for a private access
3 CEQA Guidelines § 15126.2(d): Growth-Inducing Impact of the Proposed Project. Discuss the ways in which
the proposed project could foster economic or population growth, or the construction of additional housing,
either directly or indirectly, in the surrounding environment. Included in this are projects which would remove
obstacles to population growth (a major expansion of a waste water treatment plant might, for example, allow
for more construction in service areas). Increases in the population may tax existing community service
facilities, requiring construction of new facilities that could cause significant environmental effects. Also discuss
the characteristic of some projects which may encourage and facilitate other activities that could significantly
affect the environment, either individually or cumulatively. It must not be assumed that growth in any area is
necessarily beneficial, detrimental, or of little significance to the environment.
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road. The right-of-way is 1,319 feet in length with an additional 40-
foot at the end of the road to be established for a vehicle turn-
around. Future residential dwellings constructed on the resultant
parcels (along the right-of-way) would be setback an additional 20-
feet, pursuant to Table 24-20-2 of the Butte County Zoning
Ordinance, making the total setback from the western property line
a minimum of 80 feet.
Implementation of the agricultural buffer, residential setbacks,
proposed access road right-of-way, and implementation of existing
Butte County policies and regulations identified above, would
ensure that potential impacts to adjacent agricultural lands are less
than significant.” (IS/MND pg. 10-11)
Application of this buffer and setback between future residential uses and
adjacent existing agricultural uses would ensure that there are less than
significant impacts between the incompatible uses. As a result, no mitigation
measures or EIR is required.
General Plan 2030 supports this conclusion with the goals, policies, actions and
regulations adopted to reduce conflicts between agricultural operations and
residential uses, which include Policy AG-P5.3 (Agricultural Buffer), Policy AG-
P5.3.2 (Residential Setback), and related regulations. The General Plan 2030
Environmental Impact Report evaluated these measures, concluding that
implementation would avoid changes to the agricultural environment that would
occur with the establishment of residential uses adjacent to agricultural uses,
resulting in less than significant impacts.
With no additional evidence of significant impacts to the environment having
been presented by the commenter, no additional analysis in the IS/MND or EIR
is required.
MM-4: At the time Tentative Parcel Map TPM 05-03 was considered, the General Plan
designation on the subject property and the adjacent property to the west was
“Orchard and Field Crop” and the zoning designation on the properties was A-5
(Agricultural – five-acre minimum). In addition, at that time the Zoning Ordinance
did not include the requirements for agricultural buffers now found in Article 17
of Chapter 24, nor the requirements for residential setbacks from orchards and
vineyards now found at BCC §24-56.1. TPM14-0005 proposes an agricultural
buffer and residential setbacks consistent with these requirements that would
protect adjacent agricultural uses from potentially significant impacts.
MM-5: See response to comments AA-2, AA-3, MM-2, and MM-3.
MM-6: This comment fails to acknowledge the full analysis provided in the IS/MND. The
IS/MND supports a less than significant impact by stating the following:
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“As a condition of approval to the project, the applicant shall submit
drainage plans and calculations to the County Public Works
Department. Engineering plans will detail existing drainage
conditions and specify how stormwater runoff will be either
detained or retained onsite and/or conveyed to the nearest natural
drainage channel or publicly-maintained facility. Engineering
calculations will show there is no increase in peak flow runoff
leaving the property. All improvements associated with the
proposed project will be made in accordance with the Butte County
Improvement Standards. Implementation of these conditions of
approval, together with the application of existing County and State
regulations and policies would ensure that the anticipated minor
increase in runoff would not exceed the capacity of any existing
stormwater drainage systems or substantially increase polluted
runoff.”
The condition of approval referred to in the IS/MND is reflected as Condition No.
16 in the conditions of approval recommended for the project. The condition is
a mandatory requirement that shall be fulfilled by the applicant, prior to
recordation of the parcel map. This condition is further supported under the Butte
County Improvement Standards, which contain the County’s requirements for the
design of storm drainage systems.
16: Prior to recordation of the parcel map, drainage plans and
calculation shall be submitted to and approved by the Department
of Public Works. Engineering plans shall detail existing drainage
conditions and specify how storm water runoff will be either
detained or retained onsite and/or conveyed to the nearest natural
drainage channel or publicly maintained facility. Engineering
calculations shall show there is no increase in peak flow runoff
leaving the property. If storm drainage facilities serve new public
roads, the developer must complete the formation of a county
service area (CSA), zone of benefit within a permanent road
division (PRD), or other Department of Public Works approved
entity prior to recordation of the parcel map. The formation process
will require the developer to fund the service until the beginning of
the first fiscal year in which service charges can be collected and
agree to an annual maximum service charge to ensure continued
operation of the facilities.
MM-7: See response to comments AA-2, AA-3, MM-2 and MM-3.
MM-8: See response to comment MM-6.
MM-9: See response to comment AA-5.
MM-10: New wells are reviewed by Butte County Environmental Health to
determine if wells would provide adequate quantity and quality to serve
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the intended use. Though this project is located outside of the Chico
Urban Area Nitrate Compliance Program (CUANCP) area, it is still within
the Nitrate Concern Area which requires an 80’ sanitary seal as a public
health protection for any domestic wells drilled, rather than the standard
20’ seal. Environmental Health currently requires every domestic well
drilled to be tested for water quality constituents, including nitrates.
Should nitrate levels be detected in a domestic well sample that exceed
acceptable safety levels, installation of some type of treatment system to
ensure water is safe for the intended use would be required prior to a final
of the permit, or providing a Release of the Building Permit to allow
occupancy.
MM-11: Comments about population and housing growth impacts associated with
the project are erroneous and speculative. Comments that “…the
proposed subdivision is not consistent with the General Plan, and that the
subdivision of property and accompanying population growth on the
agricultural side of the Chico Area Greenline is not part of the county’s
“planned future land uses” are incorrect as noted in MM-2, above. These
comments also include similar comments made regarding the Chico Area
Greenline, which have been addressed with Staff’s response to comment
AA-2.
Attachments
A. Draft Resolution No. PC-__ with Conditions of Approval (Exhibit A)
B. Agency and Public Comments
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RESOLUTION NO. PC-______
A RESOLUTION OF THE BUTTE COUNTY PLANNING COMMISSION APPROVING
TENTATIVE PARCEL MAP TPM14-0005
WHEREAS, the Planning Commission has considered Tentative Parcel Map TPM14-0005 for Brian
Airehart (Kromer), in accordance with Chapter 20; Subdivisions, of the Butte County Code on Assessor’s Parcel
Numbers 042-770-032; and
WHEREAS, the Planning Commission has considered the Initial Study and Mitigated Negative
Declaration in accordance with the California Environmental Quality Act (CEQA); and
WHEREAS, said map was referred to various affected public and private agencies, County departments,
and referral agencies for review and comments; and
WHEREAS, duly noticed public hearings were held on November 13, 2014, March 24, 2016, and April
28, 2016; and
WHEREAS, the Planning Commission has considered public comments and a report from the Planning
Division.
NOW, THEREFORE, BE IT RESOLVED, that the Planning Commission of Butte County hereby finds
and declares the following:
I. Adopts a Mitigated Negative Declaration with the following findings:
A. An Initial Study was completed in compliance with CEQA. Said Study identified significant
environmental effects and included mitigation measures that would mitigate such effects below
significant levels;
B. The Planning Commission has considered the Mitigated Negative Declaration, together with
comments received during the review process.
C. On the basis of the whole record before the Planning Commission, including the Initial Study
and any comments received, there is no substantial evidence that the Tentative Parcel Map for
Brian Airehart, Planning Division File No. TPM14-0005, with conditions and mitigations here
attached, would have a significant effect on the environment.
D. The custodian of the record is the Land Development Division of the Public Works Department.
The location of the record is 7 County Center Drive, Oroville CA 95965.
E. The Mitigated Negative Declaration reflects the independent judgment and analysis of the
County, which is the Lead Agency.
F. Revisions to the Draft IS/MND do not constitute a substantial revision, and therefore, do not
require recirculation, pursuant to CEQA Guidelines §15073.5.
II. Finds that collection of fees pursuant to Fish and Game Code Section 711.4 is required, prior to filing a
Notice of Determination for the project, unless the project proponent provides verification from the
California Department of Fish and Game that the project is exempt from the fee requirement. If a required
fee is not paid for a project, the project will not be operative, vested or final and any local permits issued
for the project will be invalid (Section 711.4 (c)(3)).
III. Approves Tentative Parcel Map TPM14-0005 for Brian Airehart (Kromer), subject to the conditions
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found in Exhibit “A” and the following findings:
A. The proposed map is consistent with the VLDR-2.5 (Very Low Density Residential, 2.5-acre
minimum) zone.
B. Sizes of the proposed parcels are 2.5 acres, with Parcel 1 being 5.19 acres, which are consistent
with the minimum parcel size requirements for the VLDR-2.5 zone.
C. The project is substantially consistent with applicable Goals and Policies of the Butte County
General Plan identified in the General Plan Consistency Review contained in the Staff Report.
D. The design and improvements of the proposed parcel map are consistent with County standards
and policies, provided all conditions of project approval are complied with.
E. The project site is physically suitable for the use and density of the proposed development.
F. The design and improvements of the project will not conflict with easements acquired by the
public at large for access through or use of property within the proposed parcel map provided the
attached conditions are met.
G. Approval of this project will not be detrimental to the public health, safety, and welfare, provided
the required conditions and mitigation measures are complied with.
H. The roads in the project area have the capacity to handle the increase in vehicular traffic generated
by the project.
DULY PASSED AND ADOPTED this 28th Day of April, 2016, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
______________________________
Mary Kennedy, Chair
Planning Commission
County of Butte, State of California
ATTEST:
_____________________________
Kim McMillan, Secretary
Planning Commission
County of Butte, State of California
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EXHIBIT A
Tentative Parcel Map for Brian Airehart (Kromer) on APN 042-770-032; File # TPM14-0005: An
application for a Tentative Parcel Map to divide two existing parcels totaling 12.69 acres into four lots: 5.19 acres
(Lot 1), 2.5 acres (Lot 2), 2.5 acres (Lot 3), and 2.5 acres (Lot 4).
I. CONDITIONS OF APPROVAL:
Mitigation Measure #1 (Construction Air Emissions)
The following best practice measures to reduce impacts to air quality shall be incorporated by the project applicant,
subject property owners, or third-party contractors during construction activities on the project site. These
measures are intended to reduce criteria air pollutants that may originate from the site during the course of land
clearing and other construction operations.
Diesel PM Exhaust from Construction Equipment and Commercial On-Road Vehicles Greater than 10,000 Pounds
All on- and off-road equipment shall not idle for more than five minutes. Signs shall be posted in the
designated queuing areas and/or job sites to remind drivers and operators of the five minute idling limit.
Idling, staging and queuing of diesel equipment within 1,000 feet of sensitive receptors is prohibited.
All construction equipment shall be maintained in proper tune according to the manufacturer’s
specifications. Equipment must be checked by a certified mechanic and determined to be running in proper
condition before the start of work.
Install diesel particulate filters or implement other CARB-verified diesel emission control strategies.
Shall not operate a diesel-fueled auxiliary power system (APS) to power a heater, air conditioner, or any
ancillary equipment on that vehicle during sleeping or resting in a sleeper berth for greater than 5 minutes
at any location when within 100 feet of a restricted areas.
To the extent feasible, truck trips shall be scheduled during non-peak hours to reduce perk hour emissions.
Operational TAC Emissions
All mobile and stationary Toxic Air Contaminants (TACs) sources shall comply with applicable Airborne
Toxic Control Measures (ATCMs) promulgated by the CARB throughout the life of the project (see
http:www.arb.ca.gov/toxics/atcm/atcm.htm).
Stationary sources shall comply with applicable District rules and regulations.
Fugitive Dust
Construction activities can generate fugitive dust that can be a nuisance to local residents and businesses near a
construction site. Dust complaints could result in a violation of the District’s “Nuisance” and “Fugitive Dust”
Rules 200 and 205, respectively. The following is a list of measures that may be required throughout the duration
of the construction activities:
Reduce the amount of the disturbed area where possible.
Use of water trucks or sprinkler systems in sufficient quantities to prevent airborne dust from leaving the
site. An adequate water supply source must be identified. Increased watering frequency would be required
whenever wind speeds exceed 15 mph. Reclaimed (non-potable) water should be used whenever possible.
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Butte County Department of Development Services
April 28, 2016 Agenda Report – Brian Airehart (Kromer) TPM14-0005 Page 14
All dirt stockpile areas should be sprayed daily as needed, covered, or a District approved alternative
method will be used.
Permanent dust control measures identified in the approved project revegetation and landscape plans
should be implemented as soon as possible following completion of any soil disturbing activities.
Exposed ground areas that will be reworked at dates greater than one month after initial grading should be
sown with a fast-germinating non-invasive grass seed and watered until vegetation is established.
All disturbed soil areas not subject to re-vegetation should be stabilized using approved chemical soil
binders, jute netting, or other methods approved in advance by the Butte County Air Quality Management
District.
All roadways, driveways, sidewalks, etc. to be paved should be completed as soon as possible. In addition,
building pads should be laid as soon as possible after grading unless seeding or soil binders are used.
Vehicle speed for all construction vehicles shall not exceed 15 mph on any unpaved surface at the
construction site.
All trucks hauling dirt, sand, soil, or other loose materials are to be covered or should maintain at least two
feet of freeboard (minimum vertical distance between top of load and top of trailer) in accordance with
local regulations.
Install wheel washers where vehicles enter and exit unpaved roads onto streets, or wash off trucks and
equipment leaving the site.
Sweep streets at the end of each day if visible soil material is carried onto adjacent paved roads. Water
sweepers with reclaimed water should be used where feasible.
Post a sign in prominent location visible to the public with the telephone numbers of the contractor and the
Butte County Air Quality Management District - (530) 332-9400 for any questions or concerns about dust
from the project.
All fugitive dust mitigation measures required should be shown on grading and building plans. In addition, the
contractor or builder should designate a person or persons to monitor the dust control program and to order
increased watering, as necessary, to prevent transport of dust offsite. Their duties shall include holidays and
weekend period when work may not be in progress. The name and telephone number of such persons shall be
provided to the District prior to land use clearance for map recordation and finished grading of the area.
Please note that violations of District Regulations are enforceable under the provisions of California Health and
Safety Code Section 42400, which provides for civil or criminal penalties of up to $25,000 per violation.
Plan Requirements: The note shall be placed on a separate document which is to be recorded concurrently with
the map or on an additional map sheet. This note shall also be placed on all building and site development plans.
Timing: Requirements of the condition shall be adhered to throughout all grading and construction periods.
Monitoring: The Butte County Department of Development Services and the Public Works Department shall
ensure that the note is placed on a separate document which is to be recorded concurrently with the map or on an
additional map sheet. Building inspectors shall spot check and shall ensure compliance on-site. Butte County Air
Pollution Control District inspectors shall respond to nuisance complaints.
Mitigation Measure #2 (Migratory Birds-Western Burrowing Owl)
If project construction activities occur during the nesting season for birds protected under the Migratory Bird
Treaty Act (MBTA) and California Department Fish & Game Code (CDFC) (approximately March 1 – August
31), the project proponent shall retain a qualified biologist to perform preconstruction surveys for nesting bird
species. Surveys to identify active bird nests shall be conducted within and 250 feet around the footprint of
proposed construction. At least two surveys shall be conducted no more than 15 days prior to the initiation of
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Butte County Department of Development Services
April 28, 2016 Agenda Report – Brian Airehart (Kromer) TPM14-0005 Page 15
construction activities. Each survey shall be separated by 5 days. In the event that nesting raptors or birds
protected by CDFC and MBTA are found in or within the footprint of proposed construction, the project proponent
shall:
1. Locate and map the location of the nest site;
2. Establish a 250 feet no-disturbance buffer around all active nests; in the event bald eagles are found
nesting in the survey area, a 1,000 foot no disturbance buffer shall be established;
3. Within 2 working days of the surveys, prepare a report and submit to the County. The report will include
the results of surveys, location(s) of nests, and location of no disturbance buffers;
4. On-going weekly surveys shall be conducted to ensure that the no disturbance buffer is maintained;
5. Construction can resume when a qualified biologist has confirmed that the nest is no longer active.
Plan Requirements: Perform protocol-level surveys for migratory birds protected by the California Department
Fish & Game Code and the Migratory Bird Treaty Act. This measure shall be placed on a separate document
which is to be recorded concurrently with the map or on an additional map sheet.
Timing: Requirements of the condition shall be adhered to prior to and during construction activities planned to
occur during nesting seasons for CDFC and MBTA species (between March 1 and August 31).
Monitoring: The Butte County Department of Development Services and the Public Works Department shall
ensure that the note is placed on a separate document which is to be recorded concurrently with the map or on an
additional map sheet. Department of Development Services shall ensure the condition is met at the time of
construction activities.
Mitigation Measure #3 (Cultural Resources)
Place a note on a separate document which is to be recorded concurrently with the Parcel Map or on an additional
map sheet that states: “Should grading activities reveal the presence of prehistoric or historic cultural resources
(i.e. artifact concentrations, including arrowheads and other stone tools or chipping debris, cans glass, etc.;
structural remains; human skeletal remains) work within 50 feet of the find shall immediately cease until a
qualified professional archaeologist can be consulted to evaluate the find and implement appropriate mitigation
procedures. Should human skeletal remains be encountered, State law requires immediate notification of the
County Coroner ((530) 538-6579). Should the County Coroner determine that the remains are in an
archaeological context, the Native American Heritage Commission in Sacramento shall be notified immediately,
pursuant to State Law, to arrange for Native American participation in determining the disposition of such
remains.” The provisions of this note shall be followed during construction of all subdivision improvements,
including land clearing, road construction, utility installation, and building site development.
Plan Requirements: This note shall be placed on a separate document which is to be recorded concurrently with
the map or on an additional map sheet and shall be shown on all site development and building plans.
Timing: This measure shall be implemented during all site preparation and construction activities.
Monitoring: The Department of Development Services and/or Public Works Department shall ensure the note
is placed on a separate document which is to be recorded concurrently with the map or on an additional map sheet.
Should cultural resources be discovered, the landowner shall notify the Planning Division and a professional
archaeologist. The Planning Division shall coordinate with the developer and appropriate authorities to avoid
damage to cultural resources and determine appropriate action. State law requires the reporting of any human
remains.
Mitigation Measure #4 (Greenhouse Gas Emissions):
Place a note on a separate document which is to be recorded concurrently with the map or on an additional map
sheet that states: To the extent feasible, the developer shall implement the following measures at the time of
development to offset the anticipated contribution of greenhouse gas emissions from residential development:
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Butte County Department of Development Services
April 28, 2016 Agenda Report – Brian Airehart (Kromer) TPM14-0005 Page 16
Support expansion of renewable energy systems
Prewire all new residential development to support photovoltaic system installation.
Support efficiency in vehicles and landscaping equipment
Install electrical vehicle outlets on external walls or in garages in all new residential development.
Improve fuel efficiency of equipment during construction-related activities
Minimize idling time either by shutting equipment off when not in use or reducing the time of idling to
no more than 3 minute.
Use clean or alternative fuel equipment
Plan Requirements: The note shall be placed on a separate document which is to be recorded concurrently with
the map or on an additional map sheet. This note shall also be placed on all building and site development plans.
Timing: Shall be implemented prior to issuance of building permits for residential development. Construction-
related measures shall be adhered to throughout all grading and construction periods.
Monitoring: The Butte County Department of Development Services and the Public Works Department shall
ensure that the note is placed on a separate document which is to be recorded concurrently with the map or on an
additional map sheet. Planning Division will ensure that future residential development includes the applicable
measures during Building Permit review. Building inspectors shall spot check and shall ensure compliance on-
site.
Planning Division, Department of Development Services
1. The collection of fees pursuant to Fish and Game Code Section 711.4 is required, prior to filing a CEQA
Notice of Determination for the project, unless the project proponent provides verification from the
California Department of Fish and Wildlife that the project is exempt from the fee requirement. If a
required fee is not paid for a project, the project will not be operative, vested or final and any local permits
issued for the project will be invalid (Section 711.4 (c) (3)).
2. All exterior lighting on the project site shall comply with Chapter 24, Section 67 of the Butte County
Code, Outdoor Lighting Standards. Exterior lighting shall be located, adequately shielded, and directed
such that no direct light falls outside the property line, or into the public right-of-way. Flashing,
flickering, or other lighting that is distracting or may be confused with traffic or emergency signals shall
be prohibited.
3. Prior to recordation of the Parcel Map, pay any outstanding project-related processing fees.
4. The property owner shall record an Avigation Easement/Notice of Proximity of Airport, associated with
the Chico Municipal Airport.
5. Prior to recordation of the Parcel Map, the property owner shall record a declaration acknowledging the
right to farm, pursuant to Chapter 35 of the Butte County Code (Agricultural Statement of
Acknowledgement).
6. Place a note on a separate document which is to be recorded concurrently with the parcel map or on an
additional map sheet that states: “A Declaration of Acknowledgement Right to Farm (Agricultural
Statement of Acknowledgement) has been recorded on the parcels.”
7. Place a note on the Parcel Map or additional map sheet stating: “Residential dwelling setbacks from
adjacent active orchards shall be 50 feet along the westerly property line on Lot 1. If the existing
agricultural use (orchards) have been removed permanently, the residential dwelling setback shall be
consistent with current zoning.”
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Butte County Department of Development Services
April 28, 2016 Agenda Report – Brian Airehart (Kromer) TPM14-0005 Page 17
Land Development Division, Department of Public Works
8. Prior to recordation of the parcel map, provide a fully executed road maintenance agreement for all non-
publicly maintained access roads on the county approved form. A note shall be placed on a separate
document which is to be recorded concurrently with the map or on an additional map sheet of the parcel
map stating: “In accordance with Civil Code Section 845, maintenance of the road as shown hereon shall
be shared by those properties with a legal interest in it.”
9. All access rights shall be reserved by deed per county ordinance, offered for dedication, and depicted on
the parcel map. Place the following note on the parcel map: “approved road name is a non-exclusive
easement for ingress, egress, road and public services purposes, to be reserved in deeds and is hereby
offered for dedication to the County of Butte.”
10. Prior to recordation of the parcel map, deed to Butte County in fee simple 30 feet of right-of-way from
the physical centerline of Bell Road along the entire property frontage. The right-of-way shall be
sufficient for the installation of county improvement standard S-5 at all street intersections.
11. Prior to recordation of the parcel map, provide street name signs per requirements of the Department of
Public Works. Street names shall be reviewed by the County Address Coordinator and one name for
each new street shall be recommended to the Board of Supervisors for approval prior to recordation of
the parcel map. A minimum of five alternate names for each new street shall be submitted.
12. Prior to final road inspection, install all necessary traffic safety signs including stop signs. For all non-
publicly maintained access roads, a note shall be placed on a separate document which is to be recorded
concurrently with the map or on an additional map sheet of the parcel map stating: “No public entity
shall be responsible for the maintenance of the traffic safety signs including stop signs, in accordance
with Civil Code Section 845, maintenance of the traffic safety signs shall be shared by those properties
with a legal interest in them.”
13. Prior to recordation of the Parcel Map, submit road and drainage improvement plans to the Land
Development Division for the installation of a standard S-18B road approach in accordance with county
improvement standards. Obtain an encroachment permit and construct the road approach prior to
recordation of the parcel map. Adequate sight distance at the intersection of access road and shall be
provided. Right-of-way required for construction of road approach and roadside drainage shall be
provided.
14. Provide a cul-de-sac designed and constructed as specified in the county improvement standards. The
parcel map shall show the cul-de-sac.
15. Prior to recordation of the parcel map, provide approved access to each parcel being created. Construct
or provide a performance, labor and material bond for construction of interior road in conformance with
county improvement standard RS-8 LDIII, 20-feet wide with 4” of CL II aggregate base and single
sealcoat. Submit road and drainage plans to the Department of Public Works for plan checking and
approval prior to construction.
16. Prior to recordation of the parcel map, drainage plans and calculation shall be submitted to and approved
by the Department of Public Works. Engineering plans shall detail existing drainage conditions and
specify how storm water runoff will be either detained or retained onsite and/or conveyed to the nearest
natural drainage channel or publicly maintained facility. Engineering calculations shall show there is no
increase in peak flow runoff leaving the property. If storm drainage facilities serve new public roads, the
developer must complete the formation of a county service area (CSA), zone of benefit within a
permanent road division (PRD), or other Department of Public Works approved entity prior to recordation
of the parcel map. The formation process will require the developer to fund the service until the beginning
of the first fiscal year in which service charges can be collected and agree to an annual maximum service
charge to ensure continued operation of the facilities.
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Butte County Department of Development Services
April 28, 2016 Agenda Report – Brian Airehart (Kromer) TPM14-0005 Page 18
17. Prior to final improvement inspection by the Department of Public Works, all new drain inlets shall be
labeled with the county approved drain marker per county standard S-40. Improvement plans shall show
and/or note the requirements for labeling inlets pursuant to county standard S-40.
18. Prior to grading, a construction storm water permit will be required by the State Water Resources Control
Board if the project results in a disturbance (including clearing, excavation, filling, and grading) of one
or more acres. The permit must be obtained from the State Water Resources Control Board prior to
construction. If a construction storm water permit is required, place a note on an additional map sheet
that states: “The development of this parcel map requires a construction storm water permit. Construction
activities that result in a land disturbance of less than one acre, but which are part of a larger common
plan of development, also require a permit. Development of individual lots may require an additional
permit(s).”
19. Show all easements of record on the Parcel Map.
20. Prior to recordation of the Parcel Map, pay in full any and all delinquent, current and estimated taxes and
assessments as specified in Article 8 of Chapter 4 of Division 2 of Title 7, of the California Government
Code commencing with Section 66492.
21. Pay the recording fees in effect at the time the Parcel Map and related documents are recorded.
Butte County Fire Department/Cal Fire
22. Construction, installation or development of buildings and/or roads, driveways, gates and bridges on
parcels/lots shall comply with the latest California Fire Safe Regulations – Public Resources Code 4290,
4291 and current Butte County Improvement Standards, whichever is stricter.
23. Prior to building construction, provide an all-weather access of at least 10 feet wide for residential, and
20 feet wide for commercial, and vertical clearance of 15 feet that will allow for ingress and egress and
accommodate a 40,000-pound fire apparatus to within 150 feet of all structures.
24. Place a note on a separate document, which is to be recorded concurrently with the Parcel map, or on an
additional map sheet stating, “Building identification and/or addresses shall be installed in conformance
with Public Resources Code 4290 and shall be posted at the time of permit issuance and maintained
continuously thereafter.”
25. At the time of development, the developer will install an automatic fire sprinkler system in all new
residential structures in accordance with the National Fire Protection Association standard for the
installation of sprinkler system in one and two family dwellings and mobile homes (NFPA Standard
13D).
Environmental Health Division, Public Health Department:
26. The applicant shall record a note on the Parcel Map or on an additional map sheet stating: “Reports that
may have been conditions of approval on the tentative map and a list of current county requirements for
building site are on file and available for review in the Butte County Department of Development Service
and Butte County Public Health Department Environmental Health Division files.”
II. NOTATION
A. Minor changes may be approved administratively by the Directors of Development Services,
Environmental Health, or Public Works upon receipt of a substantiated written request by the applicant,
or their respective designee. Prior to such approval, verification shall be made by each Department or
Division that the modification is consistent with the application, fees paid and environmental
determination as conditionally approved. Changes deemed to be major or significant in nature shall
require a formal application for amendment.
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2
March 23, 2016
Rowland Hickel
7 County Center Drive
Oroville, CA 95965
rhickel@buttecounty.net
Re: Mitigated Negative Declaration for the Robert and Leeanne Kromer Tentative Parcel Map (TPM14-
0005)
Dear Mr. Hickel:
AquAlliance submits the following comments and questions for the Mitigated Negative Declaration
(“MND”) for the Robert and Leeanne Kromer Tentative Parcel Map (TPM14-0005) (“Project”). There
are noticeable omissions in the MND and as discussed further below, the description of the
environmental setting, evaluation of potentially significant impacts, and formulation of mitigation
measures, among other issues, all are rendered unduly imprecise, deferred, and incomplete. We will
demonstrate that the MND does not comply with the requirements of the California Environmental
Quality Act (“CEQA”), Public Resources Code §21000 et seq and that an environmental impact report
(“EIR”) is necessary for the Project due to substantial evidence in the record.1 If Butte County is
determined to avoid a thorough vetting of the environmental impacts in an EIR, at a minimum, these
issues must be addressed and recirculated in a revised MND for public review and comment.
AquAlliance incorporates by reference all comments submitted in the last two years for the development
of the Project property.
I. Environmental Setting
A. Biological Resources
1. Avian Species
The MND acknowledges that, “[t]he site may still be capable of facilitating home range and dispersal
movement of resident wildlife species, including birds, small mammals and other wildlife,” (p. 18 of 49)
and that, “Agriculture natural community areas generally don’t support the wildlife compared with most
native habitats; however, these areas continue to support abundant wildlife and provide essential
breeding, foraging and roosting habitat for many resident and migrant wildlife species,” (emphasis
added). (p. 1of 49) However, the MND fails to analyze the impacts to the breeding, foraging and
roosting habitat for resident species and predators that would require mitigation. For example, numerous
listed birds rely on orchards, large grassy parcels, and open lands near orchards for foraging including:
Swainson’s hawk (Buteo swainsoni), Aleutian Canadian goose (Branta canadensis leucopareia),
ferruginous hawk (Buteo regalis), golden eagle (Aquila chrysaetos), American peregrine falcon (Falco
peregrinus anatum), merlin (Falco columbarius), northern harrier (Circus cyaneus), prairie falcon
1 Laurel Heights Improvement Association v. Regents of the University of California, 1988, 47 Cal.3d 376.
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Page 2 of 5
(Falco mexicanus), sharp-shinned hawk (Accipiter striatus), white-tailed kite (Elanus leucurus), greater
sandhill crane (Grus canadensis tabida), long-billed curlew (Numenius americanus), short-eared owl
(Asio flammeus), western burrowing owl (Athene cunicularia hypugea), and loggerhead shrike (Lanius
ludovicianus).
The failure to disclose the potential presence and use of the property by listed species in itself requires
the withdrawal of the MND. Once all of the potential listed species are disclosed in a revised initial
study, the analysis and mitigation requirements will demand an EIR for the Project.
II. Agriculture
A. Butte County Green Line
The MND fails to mention the Green Line. This is a significant oversight. The existence of the Green
Line, the history leading up to it, and the intention to protect it must be disclosed. Impacts to both the
agricultural side of the Green Line, where the Project is located, and the urban side of the Green Line
must be discussed within the historic context, analyzed, and recirculated in a revised MND for public
review and comment.
B. Mitigation
The MND discloses that, “The premature conversion of adjacent farmlands could potentially occur from
the increase in the number of residential dwellings developed in close proximately [sic] to existing
agricultural uses. This close proximity may cause potential conflicts due to its incompatibility, causing
restrictions on farming operations, restrictions on pesticide usage, increased risk of theft and vandalism,
complaints, introduction of pests, litter, and pets from residential uses.” (p. 10 of 49) However, the
MND concludes that no mitigation is required due to “[a] number of goals, policies, and actions to
reduce conflicts” and “[a] number of regulations to reduce conflicts.” (Id.) There isn’t any clarification
that the policies and regulations will actually reduce potential impacts below a level of significance. In
fact, the MND concludes there are no impacts at all, which contradicts the serious conflicts disclosed in
Butte County’s General Plan Environmental Impact Report and found in the MND: “The GPEIR
recognizes that re-designation of land by the GP land use map (including the VLDR designation on the
subject parcel) ‘could result in incompatible land uses next to farm uses or ranches, creating
circumstances that impair the productivity of agricultural operation, and could eventually lead farmers to
take their land out of production (GPEIR, page 4.2-15).’” (Id.)
Are there or are there not potentially significant impacts to agricultural resources? If there are, obviously
an EIR is required. If there are less than significant impacts with mitigation incorporated, where are the
detailed mitigation measures? As pointed out above, the absence of impacts in Section 4.2, Agricultural
Resources, is not supported by evidence and leaves the public without the ability to comment on
mitigation measures, a mitigation monitoring plan, and without any advance notice of “significant
adverse impacts” which is an unacceptable position and a violation of CEQA (§ 15071, subd. (a), (e)).
III. Hydrology and Water Quality
A. Groundwater Elevation
The MND concludes that there is a Less Than Significant Impact in Section 4.9 b that states:
“Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such
that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level
(e.g., the production rate of preexisting nearby wells would drop to a level which would not support
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Page 3 of 5
existing land uses or planned uses for which permits have been granted)?” (p. 29 of 49) However, what
the MND provides to support the Less Than Significant Impact finding simply states that groundwater
will provide domestic water to the new parcels and that there will be no limit on extraction as long as it
is put to beneficial use on the overlying property. “Domestic water to existing and planned uses on the
resultant parcels would be provided by groundwater extraction. No limitations or entitlements are
required for the extraction and use of the underlying groundwater, provided the water is used to serve a
beneficial use on the property. Pursuant to Butte County Improvement Standards 12.03, resultant parcels
less than 20 acres and proposing to utilize an individual water supply system must verify that water is
available in sufficient quantities, as detailed under Standard 12.02-2(1). Additionally, well yields for
new wells must meet the minimum acceptable standards detailed in the Butte County Environmental
Health Division – Potable Water Adequacy Policies and Procedures.” (p. 32 of 49) Groundwater is
certainly the planned water source for the Project, but how the Project will affect the groundwater basin
or neighboring wells is not considered at all in the MND.
However, the Setting section of Hydrology and Water Quality presents limited data from Butte County
and DWR 2001 publications. (p. 29-30 of 49) The MND also mentions “spring to spring” levels one
assumes from the same data sets since these numbers are not directly cited stating, “Further long-term
comparison of spring to spring groundwater levels indicates a 10- to 15- foot decline in groundwater
levels since the 1950’s.” Unfortunately, current information for groundwater elevations in the
Sacramento Valley groundwater basin and the Project locale are not presented in the MND. This is a
serious omission at any time let alone when the Project will most assuredly require significant amounts
of water for luxury homes on large, landscaped lots unless mitigation is imposed. Maps created by the
California Department of Water Resources illustrate serious groundwater elevation changes in the fall
from 2004-2015 in the area of the Project:
Shallow wells at an average depth of 130 feet have a maximum decline of 10-15 feet.
Intermediate wells at an average depth of 494 feet have a maximum decline of 15-25 feet.
Deep wells at an average depth of 824 feet have a maximum decline of 15-25 feet.2
In the tables below, AquAlliance provides a summary of additional fall county-level groundwater
monitoring results in the northern Sacramento Valley that were not disclosed or discussed in the MND.
(Id.) Significant concern about the results for fall 2015 groundwater levels are summarized in the
Northern Sacramento Valley Integrated Regional Water Management Board meeting: “Bill Ehorn (Chief
of Groundwater Section in Northern Region Office, DWR) gave an update on groundwater levels within
the NSV region. Change maps for October groundwater levels show that in much of the northern valley
the groundwater levels are lower than 2011 – going from bad to worse. Historic groundwater level
hydrograph maps show that groundwater levels are the lowest ever on record. A wet winter will help the
water tables rebound but deeper aquafers will take longer to rebound.”3 (emphasis added)
2http://www.water.ca.gov/groundwater/data_and_monitoring/northern_region/GroundwaterLevel/gw_level_monitoring.cfm#
Well%20Depth%20Summary%20Maps 3 December 7, 2015. MINUTES Northern Sacramento Valley Integrated Regional Water Management Board Meeting, p. 4 of
23 pdf.
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Page 4 of 5
County
Fall ’04 - ’14
Deep Wells (Max
decrease gwe)
Deep Wells (Avg.
decrease gwe)**
Butte -20.6 (-12.7)* -12.8 (-10.5)*
Colusa -87.3 (-59.5)* -35.0 (-59.5)*
Glenn -89.9 (-79.7)* -40.1 (-44.3)*
Tehama -44.0 (-34.6)* -11.6 (-10.9)*
County
Fall ’04 - ’14
Intermediate Wells
(Max decrease gwe)
Intermediate Wells
(Avg. decrease gwe)**
Butte -26.0 (-23.0)* -12.9 (-9.4)*
Colusa -125.4 (-40.6)* -32.4 (-22.6)*
Glenn -58.0 (-57.2)* -26.7 (-25.0)*
Tehama -35.9 (-30.2)* -13.6 (-12.4)*
County
Fall ’04 - ’14
Shallow Wells (Max
decrease gwe)
Shallow Wells (Avg.
decrease gwe)**
Butte -19.2 (-17.6)* -8.0 (-5.9)*
Colusa -51.4 (-36.7)* -10.5 (-7.6)*
Glenn -58.0 (-53.5)* -15.8 (-15.1)*
Tehama (Sac Valley basin) -34.1 (-30.2)* -11.1 (-9.5)*
1. * 2004-2014 monitoring results are in parentheses for comparison with 2015 results.
2. ** Some average well depth numbers are not accurately comparable between 2004-
2014 and 2004-2015 due to a change in the number of wells monitored.
3. Highlighted in yellow are negative changes of over 10 feet.
Again, the absence of disclosure and impacts to current groundwater elevation, and therefore supply, in
Section 4.9, Hydrology and Water Quality, is not supported by evidence and leaves the public without
the ability to comment on mitigation measures, a mitigation monitoring plan, and without any advance
notice of “significant adverse impacts” which is an unacceptable position and a violation of CEQA. (§
15071, subd. (a), (e)).
B. Water Quality
The MND fails to disclose the seriously elevated nitrate levels in the immediate area of the Project and
therefore fails to analyze the potential impacts from additional on-site septic systems. The nitrate
problems in the Chico Urban Area are well known, documented, and part of a Chico Urban Area Nitrate
Compliance Plan.4 Clearly, without disclosure or analysis there are no proposed mitigation measures for
the public to consider. Once again, the absence of impacts in Section 4.9, Hydrology and Water Quality,
is not supported by evidence and leaves the public without the ability to comment on mitigation
measures, a mitigation monitoring plan, and without any advance notice of “significant adverse impacts”
which is an unacceptable position and a violation of CEQA. (Id.)
4 “The "Chico Urban Area Nitrate Compliance Plan (Plan)" has been prepared in response to the contamination of
groundwater in the Chico Urban Area by nitrate, a form of nitrogen. The discharge from individual septic systems has been
cited by the Central Valley Regional Water Quality Control Board (Regional Board) as the primary source of groundwater
nitrate contamination that exceeds drinking water standards set by the U.S. Environmental Protection Agency and the State
Water Resources Control Board (State Board). Nitrate levels that exceed the standard have been established as a threat to the
public health and is subject to regulation.” https://www.buttecounty.net/administration/NitrateComplianceProgram.aspx
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Page 5 of 5
IV. Level of CEQA Analysis
As discussed here, there is substantial evidence of potentially significant impacts that have not been
disclosed and analyzed in addition to many areas that were disclosed, but the analysis and conclusions
are deficient. CEQA requires lead agencies in California to prepare a detailed environmental impact
report when a project has the potential to have a “Significant effect on the environment [that] means a
substantial, or potentially substantial, adverse change in the environment...” (§ 21068; see Dehne v.
County of Santa Clara (1981) 115 Cal.App.3d 827, 843-844 [171 Cal.Rptr. 753]) (Pub. Res. Code §§
21100, 21151; 14 Cal. Code Regs., §§15064(a)(1), (f)(1).) Butte County has to date avoided adequately
considering all the potential impacts from the Project and must now face that reality.
V. Conclusion
The examination of the proposed Project fails to comply with the most essential review and disclosure
requirements of CEQA, thereby depriving decision makers and the public of the ability to consider the
relevant environmental issues in any meaningful way (details above). Rather, Butte County has
neglected to disclose the Project’s impacts in violation of CEQA in what appears to be an ongoing effort
to avoid preparation of a project EIR. AquAlliance has demonstrated that key questions have not been
addressed, significant data gaps exist, and the possible and very probable impacts to the environment
and humans are not disclosed, but summarily rejected without data and a scientific basis for the
conclusions. To correct this, Butte County must more thoroughly scrutinize potential impacts from the
Project and prepare an EIR
AquAlliance requests notification of any future hearings or meetings in regards to the Project at the
address below.
Sincerely,
Barbara Vlamis
AquAlliance
P.O. Box 4024
Chico, CA 95927
27
MINASIAN, MEITH,
SOARES, SEXTON &
COOPER, LLP
ATTORNEYS AT LAW
A Partnership Including Professional Corporations
1681 BIRD STREET
P.O. BOX 1679
OROVILLE, CALIFORNIA 95965-1679
Writer’s e-mail:amcclure@minasianlaw.com
PAUL R. MINASIAN, INC.
JEFFREY A. MEITH
M. ANTHONY SOARES
DUSTIN C. COOPER
EMILY E. LaMOE
PETER C. HARMAN
ANDREW J. McCLURE
WILLIAM H. SPRUANCE,
Retired
MICHAEL V. SEXTON,
Retired
TELEPHONE:
(530) 533-2885
FACSIMILE:
(530) 533-0197
March 22, 2016
Planning Commission
Butte County Department of Development Services
7 County Center Drive
Oroville, California 95965
Re: Proposed Project TPM 14-0005 - Robert and Leeanne Kromer Tentative
Parcel Map
Ladies and Gentlemen:
We provide the following comments to Proposed Project TPM 14-0005 as follows:
I. SUBDIVISION MAP ACT COMMENTS.
A. The Proposed Subdivision is Inconsistent with General Plan Goals LU-13 (Chico
Area Greenline) and LU-1 (Uphold Planning Principles Upon Which General
Plan is Based), and Policies LU-P13.3, LU-P13.7, LU P-13.8 and LU P1.1.
To respect agriculture and provide for its continued existence in the Chico area, this
County long ago enacted the “Chico Area Greenline.” The stated Goal of the Chico Area
Greenline is to “Plan for growth and protect agriculture in the Chico area through the Chico
Area Greenline,” and consistent with that goal, the General Plan Land Use Policies
associated with implementing the “Chico Area Greenline” provide the following protections:
LU-P13.3: Recognize the Chico Area Greenline as the
boundary between the Urban side of the Chico Area
Greenline and the Agricultural side of the Chico Area
Greenline.
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Butte County Planning Commission
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LU-P13.7: Conserve and protect for agricultural use the
lands in the Chico area that are situated on the Agricultural
side of the Chico Area Greenline.
LU-P13.8: Accommodate future urban and suburban growth
that occurs in the Chico area of Butte County on lands
situated in the Urban side of Chico Area Greenline.
1. The Proposed Subdivision is on the “Agricultural Side of the Chico Area
Greenline.”
There can be no dispute that the land proposed for subdivision is on the “Agricultural
side of the Greenline.” And yet, if approved, the propose Tentative Parcel Map would divide
what the project environmental document refers to as “12.69 acres of fallow agricultural
lands,” into one 5 acre parcel and a series of 2.5 acre parcels only marginally suitable for
agricultural uses. That action would directly conflict with Policy LU - P13.7 (“conserve and
protect for agricultural use the lands in the Chico area that are situated on the Agricultural
side of the Chico Area Greenline.”), and with the Commission’s prior rulings on this precise
issue.
In 2005 the Planning Commission denied a request to divide the property at issue here
into two parcels on the ground that:
The parcel was zoned A-5 on October 7, 1975, several years prior to
the adoption of the Greenline policy. Although it did not have to be
rezoned when the Greenline policy was adopted, there is nothing in
the Greenline policy to indicate that a property can be subdivided to
the parcel minimums in order to advance residential development.
Instead, the Greenline policy seeks to preserve the agricultural nature
of properties on the agricultural side of the Greenline. (Minutes of
July 14, 2005 Planning Commission Meeting) (Exhibit 1).
While the 2012 amendments to the Greenline Policy may have loosened the technical
restrictions on building on the Agricultural side of the Greenline (allowing residential
development in newly designated VLDR zoning designations) – the baseline Policies recited
above, including preserving and protecting for agricultural use the lands near Chico that are
on the Agricultural side of the Greenline, and recognizing the Greenline as a boundary
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March 22, 2016
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between the urban side of the Greenline and the Agricultural side of the Greenline, would be
violated by approving the proposed Tentative Parcel Map.
In evaluating these impacts, it is important to recognize that the proposed subdivision
will not only result in the direct loss of 12 agriculturally viable acres, but may also indirectly
cause the loss of agricultural uses of the land bordering the proposed subdivision to the west.
As stated by the County’s own Right-to-Farm Act, the introduction of residential
development adjacent to agricultural operations often undermines the continued existence
of those agricultural operations:
Where nonagricultural land uses, particularly residential and
commercial development, extend onto agricultural land or exist side
by side with agricultural operations, agricultural operations are
frequently the subject of nuisance complaints. As a result, some
agricultural operations are forced to cease or curtail their operations
and many others are discouraged from making investments in
improvements to their operations, all to the detriment of adjacent
agricultural uses and the economic viability of the county's
agricultural industry as a whole. (Exhibit 2) (Right-to-Farm
Ordinance, Butte County Code Ch. 35-2(b)).
In other words, the disruption to agriculture caused by the proposed subdivision has
a high likelihood of spilling into and negatively affecting the existing agricultural uses of the
property on the proposed subdivision’s western border. In this regard, the project is a growth
inducement because it would establish a precedent whereby the Planning Commission
indicates to developers that agricultural uses are no longer protected by the Chico Area
Greenline. This precedent setting action would make it easier for future residential projects
to gain approval, notwithstanding that those subdivisions may be located on the agricultural
side of the Greenline.
Approving the proposed subdivision would not only violate the Chico Area Greenline
Goal and Policies, but also General Plan Goal LU-1 “Continue to uphold and respect the
planning principles on which the County’s land use map is based,” and Policy LU-P1.1 (“The
County shall protect and conserve land that is used for agricultural purposes, including
cropland and grazing land.”). In summary, the proposed subdivision is inconsistent with the
General Plan Goals and Policies and must be rejected.
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Re: Project TPM 14-0005
March 22, 2016
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II. CEQA COMMENTS.
The mitigated negative declaration for the proposed subdivision is legally inadequate
under the California Environmental Quality Act (“CEQA”). Substantial evidence in the
record of this project supports a fair argument that the proposed subdivision will have a
significant effect on the environment, and as a result, the lead agency must prepare an
Environmental Impact Report to further study those impacts and develop alternatives or
mitigation measures.1 As illustrated in detail below, many of the “No Impact” and “Less than
Significant Impact” determinations made in the Initial Study are contradicted and
undermined by findings set forth in Butte County’s own studies, policies and regulations, as
well as the factual materials attached hereto and referenced herein.
A. Section 4.2 - Conversion of Farmland.
The Initial Study found that the proposed subdivision will have “no impact” with
respect to the potential conversion of Farmland:
Section 4.2 (e): Would the Proposal Involve other changes in the
existing environment which, due to their location or nature, could
result in conversion of Farmland, to non-agricultural use or
conversion of forest land to non-forest use?
No Impact.
In fact, that finding is rebutted by the Initial Study itself, which states that “the project
site encompasses 12.69 acres of fallow agricultural lands located 1/4 mile west from the City
of Chico city limits.” (Initial Study at p.1). A project that will convert more than 12 acres
of “fallow agricultural lands” to residential uses will necessarily result in “conversion of
farmland.”
1Quail Botanical Gardens Found., Inc. v. City of Encinitas, (1994) 29 Cal. App. 4th 1597,
1602.
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Additionally, the narrative explanation of the ‘No Impact’ finding acknowledges that:
[T]he premature conversion of these farmlands could potentially
occur with approval of the project from the increase in the number of
residential uses developed in close proximity [sic] to existing
agricultural uses, which may cause potential conflicts due to
incompatibility.
And that conclusion finds support int Easement Holder environmental analysis of the
County’s General Plan, also cited in the Project’s MND:
The GPEIR recognizes that re-designation of land by the GP land use
map (including the VLDR designation on the subject parcel) ‘could
result in incompatible land uses next to farm uses or ranches, creating
circumstances that impair the productivity of agricultural operation,
and could eventually lead farmers to take their land out of production’
(GPEIR, page 4.2-15).
In other words, the County’s own Environmental Analyses conclude that development of the
type proposed by TPM14-0005 “. . . could lead farmers to take their land out of production.”
The Initial Study’s conclusion that the Project will have ‘No Impact’ in this regard is thus
plainly unsupported.
Moreover, in 2005 the Butte County Planning Commission denied a previous
subdivision map for the parcel at issue here (APN-042-770-032) based in part on the finding
that:
The conversion would be detrimental to existing agricultural
operations. The proposed parcel map would impact agricultural
operations on adjacent properties to the north and west.”
The parcel map the Planning Commission rejected in 2005 was a plan to subdivide
APN 042-770-032 into two parcels. There is no basis for concluding that the current
proposal to subdivide the property into four parcels would have less of an impact on those
same agricultural uses that warranted the previous denial. And, as stated in the declaration
of Peter D. Peterson attached hereto, the agricultural character of the property along the
proposed subdivisions’ western border has not changed since 2005.
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To be clear, the link between converting property to residential use and the loss of
farmland adjacent to those subdivisions is not speculative. Butte County’s own “Right-to-
Farm” protections were enacted in order to address the reality that residential development
is incompatible with adjacent agricultural land uses:
Where nonagricultural land uses, particularly residential and
commercial development, extend onto agricultural land or exist side
by side with agricultural operations, agricultural operations are
frequently the subject of nuisance complaints. As a result, some
agricultural operations are forced to cease or curtail their operations
and many others are discouraged from making investments in
improvements to their operations, all to the detriment of adjacent
agricultural uses and the economic viability of the county's
agricultural industry as a whole. (Butte County Code Ch. 35-2(b))
(Exhibit 2).
Thus, based on the County’s analysis of this issue, as a result of the residential
development of the proposed subdivision, the agricultural operations existing on the
properties along the western boundary of the project could be “forced to cease or curtail their
operations” as a result of being forced to exist side by side with such residential
development. The CEQA question in Section 4.2(e) of whether the proposal could result in
“the conversion of Farmland to non-agricultural use” is not limited Farmland of statewide
significance or importance, and encompasses lands currently devoted to agriculture, even if
they are not so zoned or formally designated. Unlike the property on the northern border of
the proposed development, those along the western boundary will not be protected by the
300-foot buffer – notwithstanding that those properties are similarly devoted to agricultural
uses – and are similarly vulnerable to being forced to cease or curtail their operations.
In summary, the “No Impact” finding with respect to significant environmental
impacts regarding the conversion of farmland on the property proposed for subdivision and
surrounding and adjacent lands (including the Peterson Property) is unsupported by evidence,
and therefore deficient under 14 CCR §15063, which requires that the impact findings in an
initial study are supported by some evidence. In this case, no evidence supports the finding
that there will be no impact to the property proposed for subdivision or adjacent and
surrounding lands, and in fact such impacts were apparently not even considered.
The County must fully study these impacts in an Environmental Impact Report.
Following the conclusion of such review, mitigation measures should include a 300-foot
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Butte County Planning Commission
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buffer between the property proposed for development and the Peterson property situated
along its western border.
B. Section 4.9 - Drainage Impacts.
The Initial Study found that the proposed subdivision will have “less than significant
impact” with respect to drainage:
Section 4.9 (e): Will the proposal, “Create or contribute runoff water
which would exceed the capacity of existing or planned storm water
drainage systems or provide substantial additional sources of polluted
runoff?” by stating there will be
Less than Significant Impact – The proposed project is likely to
generate a minor increase in runoff from the future development of
the resultant parcels, such as with the construction of new residences
or access roads. These improvements are relatively small and located
in an area that does not have managed stormwater drainage systems.
These are bare conclusions, unsupported by evidence in the administrative record. To
be relied on as the sole support for a negative declaration, an initial study must disclose the
data or evidence supporting the study’s environmental findings.2 Here, the impact findings
regarding drainage do not identify or evaluate the increases in impervious surface area
associated with the residential development, describe average rainfall conditions at the
project site, or evaluate any special conditions related to the fact that the properties to the
west and north of the proposed subdivision are devoted to agricultural uses – a clear
violation of the mandate that impact findings be supported by some evidence in the record.
As discussed in greater detail below, the assumption that the proposed subdivision will
not have a significant environmental impact with respect to drainage is inconsistent with the
Butte County General Plan, which requires a comprehensive drainage plan be submitted prior
to residential development to ensure that drainage impacts on surrounding agricultural lands
are evaluated and mitigated. (Butte County General Plan AG-P5.5).
2 Citizens Ass’n for Sensible Dev. v. County of Inyo, (1985) 172 Cal. App. 3d 151, 171.
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The conclusory finding in the environmental document that the proposed subdivision
will have a “less than significant impact” is also inconsistent with the comprehensive review
imposed as a “Standard Condition For Tentative Parcel Map” by Butte County. Those
requirements mandate that:
Prior to recordation of the parcel map, drainage plans and calculations
shall be submitted to an approved by the Department of Public
Works. Engineering plans shall detail existing drainage conditions
and specify how storm water runoff will be either detained or retained
onsite and/or conveyed to the nearest natural drainage channel or
publicly maintained facility. Engineering calculations shall show
there is no increase in peak flow runoff leaving the property. . . .
Prior to grading, a construction storm water permit will be required
by the State Water Resources Control Board if the project results in
a disturbance (including clearing, excavation, filling, and grading) of
one or more acres. The permit must be obtained from the State Water
Resources Control Board prior to construction. If a construction
storm water permit is required, place a note on an additional map
sheet that states: “the development of this parcel map required a
construction storm water permit. Construction activities that result in
a land disturbance of less than one acre, but which are part of a larger
common plan of development, also require a permit. Development of
individual lots may require an additional permit(s)” (Butte County
Public Works Department-Standard Conditions for Tentative Parcel
Map).
While the environmental document alludes to “submission of drainage plans and
calculations to the County Public Works Department” as a condition of approval – such
measures are apparently not incorporated as mandatory mitigation measures of project
approval – confirmed by the fact that Section 4.09 of the environmental document concludes
no mitigation related to Hydrology and Water Quality is required. (See pg. 33, “Mitigation
Measure: None Required.”) On the basis of the environmental document alone, there is
no“expectation of compliance” with the County’s drainage ordinances, rules, and policies,
nor is there an indication that such measures would be sufficient for drainage impacts caused
by this project.
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At a bare minimum, compliance with the standard conditions set forth above should
be imposed as a “drop-dead” condition under which the project may not proceed if objective
environmental standards established by the County with respect to drainage are not met.3
With respect to deficiencies related to drainage, see also Section 3.C. below, identifying
inconsistencies between the CEQA document’s drainage determination and the County’s
General Plan requirements.
C. Section 4.10 – Inconsistency With General Plan Requirements.
The Analysis set forth in section 4.10 of the Initial Study entitled “Land Use” is
deficient, and substantial evidence supports a fair argument that the proposed project will
have a significant environmental impact in this regard, requiring preparation of a full EIR to
study those impacts and identify suitable alternatives.
The CEQA document, in evaluating the ‘Land Use’ impacts associated with the
proposed project, takes an extremely narrow view of that consideration which fails to
consider potentially significant impacts.
Section 4.10(b): Will the Proposed project “Conflict with an
applicable land use plan, policy, or regulations of an agency with
jurisdiction over the project (including but not limited to, the general
plan, specific plan, local coastal program, or zoning ordinance)
adopted for the purpose of avoiding or mitigating an environmental
effect?”
No Impact – The Proposed project does not include an amendment
to the existing land use designation, or changes to the existing land
uses occurring on the project site. The proposed project would
subdivide the property into additional parcels, with each parcel
meeting the minimum parcel size requirement designated by zoning.
1. Inconsistency with General Plan Chico Area Greenline.
Butte County adopted the Greenline policy many years ago in an attempt to protect
and preserve agricultural property uses on the west side of Chico. Plainly stated, Goal LU-13
3Schaeffer Land trust v. San Jose City Council, (1989) 215 Cal. App. 3d 612.
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of the Butte County General Plan is to “Plan for growth and protect agriculture in the Chico
area through the Chico area Greenline.” The current version of that policy includes the
following protections:
LU-P13.3: Recognize the Chico Area Greenline as the boundary
between the “Urban side of the Chico Area Greenline and the
Agricultural side of the Chico Area Greenline.”
LU-P13.7: Conserve and protect for agricultural use the lands in the
Chico area that are situated on the Agricultural side of the Chico Area
Greenline.
LU-P13.8: Accommodate future urban and suburban growth that
occurs in the Chico area of Butte County on lands situated in the
Urban side of Chico Area Greenline.
Permitting the subdivision of an agriculturally viable 12.19 acre parcel into one five-
acre piece and three 2.5 acre parcels with little or no agricultural utility is inconsistent with
the stated goal of the Greenline to “Conserve and protect for agricultural use the lands in the
Chico area that are situated on the Agricultural side of the Chico area Greenline.” While
agricultural land uses are not forbidden in a 2.5 acre residential property zoned VLDR, the
economic and functional realities associated with an agricultural operation effectively
prohibit meaningful agricultural operations on parcels of that size. Additionally, permitting
the subdivision of property to accommodate suburban growth via the addition of four new
homesites violates the stated policy to “Accommodate future urban and suburban growth that
occurs in the Chico area of Butte County on lands situated in the Urban side of the Chico
Area Greenline.”
It should also be noted that the Planning Commission itself determined in 2005 that
subdivision of the Kromer Property is inconsistent with the Greenline policy:
The parcel was zoned A-5 on October 7, 1975, several years prior to
the adoption of the Greenline policy. Although it did not have to be
rezoned when the Greenline policy was adopted, there is nothing in
the Greenline policy to indicate that a property can be subdivided to
the parcel minimums in order to advance residential development.
Instead, the Greenline policy seeks to preserve the agricultural nature
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March 22, 2016
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of properties on the agricultural side of the Greenline. (Minutes of
July 14, 2005 Planning Commission Meeting) (Exhibit 1).
The subdivision of an agriculturally viable parcel located on the agriculture side of
the Chico Area Greenline is repugnant to the purpose of the policy. At a bare minimum, the
environmental document must evaluate the environmental impact associated with the
residential conversion of properties located on the agricultural side of the Greenline. In
point of fact, the document does not even use the term “Greenline” once. The stated
“Goal” of the Greenline Policy is to “Plan for growth and protect agriculture in the Chico
area through the Chico area Greenline.” That goal is not served by the subdivision of
property into non-agriculturally viable units.
2. Inconsistency with General Plan Drainage Requirements.
Recognizing the decreased saturation capacity of developed versus undeveloped
ground, and the potential for drainage problems associated with the introduction of
residential properties into agricultural areas, General Plan Policy AG-P5.5 provides that:
To protect agricultural areas from flooding, all urban/residential
development projects shall provide a drainage plan prepared by a
registered civil engineer that, at a minimum, addresses:
a. Pre-development drainage conditions for the development site,
including peak runoff rates and runoff volumes.
b. Post-development drainage conditions, including changes in
peak runoff rates and runoff volumes.
c. Off-site drainage or flooding impacts and proposed or
recommended mitigation measures.
d. Mechanisms for maintenance of drainage facilities.
However, the Project Application documents include no such drainage plan, and as
discussed above, notwithstanding that failure, the CEQA document makes a finding of “no
significant impact.” The glossing over of drainage impacts, with no evidentiary support is
a substantial failure in its own right, which is only compounded by the fact that such failures
violate General Plan policies specifically adopted for the purpose of avoiding or mitigating
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Butte County Planning Commission
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a potentially significant environmental effect. A full Environmental Impact Report needs to
be completed regarding the drainage impacts of the proposed project, and at a bare minimum,
the developer must be required to comply with the General Plan drainage requirements as a
mitigation measure.
D. Section 4.17 – Utilities and Service Systems / Section 4.9 – Hydrology and Water
Quality.
Neither the environmental analysis of the ‘Utilities and Services Systems’
(Section 4.17), nor the ‘Hydrology and Water Quality’(Section 4.9) address the exceedingly
high levels of nitrates existing in the immediate vicinity of the proposed subdivision, or
whether the installation of additional on-site septic systems would compound the
environmental impacts associated with that issue.
1. Groundwater Nitrate Levels in the Immediate Project Vicinity Exceed State
Standards.
Attached hereto as Exhibit 4 are four environmental analyses of groundwater pumped
from on-site wells located on properties located immediately west of the property proposed
for subdivision. The results of those tests show increasing nitrate concentrations over the
past 13 years – and the most recent tests show groundwater concentrations already exceed
the “Maximum Contaminant Level (MCL)” for nitrate in drinking water of 45 milligrams per
Liter (mg/L) – as prescribed in Title 22, California Code of Regulations Section 63341. The
results of the well tests on the property immediately west of the proposed subdivision are
summarized below:
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Butte County Planning Commission
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Monarch Laboratory, Inc. - Test Date 7/09/2001
– Nitrate, Drinking Water 24 mg/L
Deerpoint Group, Inc., - Test Date 5/09/2013
– Nitrate, Domestic Well 37.0 ppm as NO3
– Nitrate, Landscape Well 43.9 ppm as NO3
Deerpoint Group, Inc., - Test Date 7/17/2013
– Nitrate, Landscape Well 53.1 ppm as NO3
FGL Environmental - Test Date 10/30/2013
- Nitrate, Landscape Well 104 mg/L
These test results showing Nitrate MCLs exceeding State standards are consistent with
the results of testing performed in accordance with the February 25, 2014 “Sampling and
Analysis Plan and Update Chico Urban Area Nitrate Compliance Program.” (Exhibit 5).
Monitoring Well 25 (MW25) shown in Figure 3 of the “Sampling and Analysis Plan”
is less than 1500 feet from the property proposed for subdivision. (Exhibit 5). Page 1-15 of
the Sample shows the tests conducted in February 2013 at MW-25 produced Nitrate (NO3)
levels at 159.36 mg/L, a level more than 3.5 times the MCL standard.
To be clear – there is no debate that on-site septic systems contribute to the presence
of nitrates in groundwater. The “Nitrate Fact Sheet” produced by the California Department
of Public Health (Exhibit 6), states: “What are nitrates? Nitrates can be found in drinking
water supplies. Their presence in groundwater is generally associated with Septic
systems . . .”
The causal relationship between the existence of nitrates in groundwater and presence
of septic systems is also confirmed by the County’s own “Chico Urban Area Nitrate
Compliance Program.” That document was finalized in 2000 and includes the following
excerpts:
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. . . was prepared in response to the contamination of groundwater in
the Chico Urban Area by nitrate, and form of nitrogen. . . The source
of nitrate contamination to the shallow aquifer beneath the Chico
Urban Area is from the use by residents of on-site septic systems
for wastewater disposal. (Abstract – Chico Urban Area Nitrate
Compliance Plan) (Bolding Added) (Exhibit 7).
Any septic system will cause some degradation of groundwater
above background levels.” (Nitrate Compliance Plan – Section 4.6,
pp. 4-13) (Bolding added) (Exhibit 7).
2. The CEQA Document Does Not Evaluate the Link Between Septic Systems and
High Nitrate Levels.
Notwithstanding evidence of exceedingly high nitrate levels in groundwater in the
immediate vicinity of the proposed subdivision, and the acknowledged fact that the
installation of septic systems degrade groundwater quality and specifically cause high
groundwater nitrate levels, the CEQA analysis did not consider these impacts at all:
Section 4.9(a): Would the Proposal “Violate any water quality
standards or waste discharge requirements?”:
Less than significant impact. Wastewater disposal for the proposed
project would be provided by private, on-site septic systems. The
Butte County Environmental Health Division has performed a
preliminary review of the proposed project, and has indicated that
future placement of an on-site septic system for the proposed parcel
would be possible. At the time of development, proposed
development would be evaluated, and compliance with wastewater
disposal standards would be ensured. (Initial Study at p. 30).
Section 4.9(f) – Would the proposal – “Otherwise substantially
degrade water quality?”:
No impact. The proposed project would not result in potential surface
water pollution beyond the issues discussed in section a) [water
quality and waste discharge requirements] above. Therefore, the
proposed project would not otherwise degrade water quality beyond
the issues previously addressed.
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In other words, apparently no review of the impact installing additional on-site septic
systems would have on the water quality standards of the surrounding area occurred. This
finding cannot be sustained. The County MUST find that the project may have a significant
effect on the environment and thus MUST prepare an EIR because the project has a
environmental effects that will cause substantial adverse effects on human beings, either
directly or indirectly.4 As stated in the may 2014, “Nitrate Fact Sheet” issued by the
California Department of Public Health, consumption of nitrates in drinking water can cause
severe health concerns:
What's the health concern about nitrate/nitrite in drinking water?
Nitrite can interfere with the ability of red blood cells to carry oxygen
to the tissues of the body, producing a condition called
methemoglobinemia. It is of greatest concern in infants, whose
immature stomach environment enables conversion of nitrate to
nitrite, which is then absorbed into the blood stream. Clinical effects
on infants ingesting nitrite at high levels in foods or from formula
made with nitrate-contaminated drinking water are often referred to
as the "blue baby syndrome." High nitrate levels may also affect the
oxygen-carrying ability of the blood of pregnant women. The groups
with the greatest risk of becoming ill through ingesting nitrate are
infants under 6 months and pregnant women. In general, the groups
with the lowest risk of becoming ill are healthy children and adults.
(California Department of Public Health – Nitrate Fact Sheet)
(Exhibit 6).
The detrimental health impacts associated with the installation of septic systems in the
proposed subdivision are not limited to that property. Rather, the Chico Urban Area Nitrate
Compliance Plan shows the general direction of groundwater flow in the shallow aquifer is
east to west, and that “one undeniable characteristic is that nitrate concentrations are highest
directly down-gradient (westerly) from the unsewered portions of the Chico Urban Area.”
(Chico Urban Area Nitrate Compliance Plan at pp. 3 – 7-8) (Exhibit 7). The Peterson
property and the other residences located in the vicinity of Sheltering Oak Court and Bell
Estates Drive, are located directly in the path of nitrate impacts associated with the
installation of new septic systems in the proposed subdivision. The County must perform an
environmental review of the project because it has environmental effects that will cause
substantial adverse effects on human beings, either directly or indirectly. (Public Resources
Code § 21083(b)(2)).
4Public Resources Code § 21083(b); 14 Cal. Code Regs. 15065(a)(1). 42
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Nothing in the “preliminary review” of the proposed wastewater disposal associated
with the project performed by the Butte County Department of Environmental Health
(Exhibit 8) overrides these concerns regarding the environmental impact associated with
installing additional septic systems in the area. The Department of Environmental Health’s
‘review’ was extremely cursory, simply indicating the soil profile of the property proposed
for subdivision. In fact, there is a legitimate question of whether the Department of
Environmental Health evaluated the project that is slated to go forward: A review dated
August 28, 2014 refers to an evaluation of a five property subdivision (four parcels of 2.5
acres each and one parcel of 2.69 acres), whereas the CEQA Initial Study contemplates
subdividing the 12.69 acre parcel into four lots. To the extent the DEH reviewed the wrong
project, any analysis is deficient on its face.
3. The CEQA Document does Not Analyze the Impacts of High Nitrate Levels and
the Proposal to Serve the Project with On-Site Wells.
The failure to analyze groundwater impacts associated with the installation of
additional on-site septic systems in an area in which wells show Nitrate levels exceeding
state MCL standards is compounded by the fact that the parcels in the proposed subdivision
intend to use on-site wells for domestic water purposes:
Section 4.17(d) – Would the proposed project – “Have sufficient
water supplies available to serve the project from existing
entitlements and resources, or are new or expanded entitlements
needed?”:
Less than significant impact. Domestic water services to future
residences on the resultant [subdivided] parcels would be provided by
a private groundwater well.
This bare finding fails to acknowledge that the private groundwater wells proposed
to serve the subdivision draw from groundwater that contains nitrate levels that exceed state
standards by a multiple of 3.5. Any individual who consumes water from the proposed
private groundwater wells that will serve the project is in peril – individuals who may live
in the proposed residences, anybody who may visit the proposed residences, and any member
of the public who ultimately consumes water produced from the proposed wells is at risk.
The county must conduct a full Environmental Impact Report to review these concerns, and
prepare alternatives or mitigation measures to alleviate and address them.
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Butte County Planning Commission
Re: Project TPM 14-0005
March 22, 2016
Page -17-
A full EIR is required to study: (1) the additional significant environmental impacts
that will be caused by installing additional on-site septic systems in the proposed subdivision,
and (2) the environmental impact of securing safe, clean and reliable water supply.
E. Section 4.13 - Population and Housing Growth.
The project would have significant growth inducing impacts which were not evaluated
or addressed by the Initial Study.
Section 4.13 – Would the Proposal – “Induce substantial population
growth in an area, either directly (for example, by proposing new
homes and businesses) or indirectly (for example, through extension
of roads of other infrastructure)?”
Less than significant impact - Subdivision of the project site could
facilitate the potential addition of single-family residential units,
which would directly result in growth in available housing and, if
occupied, to the local population. However, housing and population
growth with this project are consistent with planned future land uses
and would be minor in scale. . . . Growth in the project area resulting
from the project is planned, and is consistent with the applicable
planning policies and zoning ordinance.
This analysis is deficient because it fails to account for the fact that the proposed
subdivision is not consistent with the General Plan, and that the subdivision of property and
accompanying population growth on the agricultural side of the Chico Area Greenline is not
part of the county’s “planned future land uses.” If the Greenline Policy imposed by the
General Plan were imposed on this project – the proposed project and accompanying growth
would not occur. Thus, the direct growth that would result from the project is not
contemplated by the General Plan.
44
Butte County Planning Commission
Re: Project TPM 14-0005
March 22, 2016
Page -18-
Additionally, the project would have significant indirect growth inducing impacts not
evaluated in the initial study. Permitting the proposed development to occur on the
agricultural side of the Greenline would be a precedent setting action, making it easier for
future projects with similar characteristics to gain approval.
Thus, approving project TPM14-0005, notwithstanding that doing so would violate
the County’s Greenline Policy, would establish a precedent that the Policy can be ignored
– essentially clearing the way for immediate development of the parcels currently proposed
for residential land division in the Bell-Muir Extension area, and development of additional
properties with similar characteristics in the future.
Reference to the “Bell-Muir Area - VLDR Zone” aerial photo and “Pending Land
Division Applications and General Plan Designations in the Bell/Muir Area” map appended
to Mr. Snellings’ memorandum (Exhibit 9) shows that many of the properties in the
VLDR 2.5 zoning designation immediately surrounding proposed project TPM 14-0005 are
far larger than the minimum 2.5 acre zoning designation, and remain devoted to agricultural
uses. Permitting Project TPM14-0005 to go forward in its current form would establish a
precedent favoring the subdivision of those as-yet undeveloped properties – even if they are
surrounded by property devoted to agricultural use and exist on the agricultural side of the
Greenline.
The direct and indirect growth inducing impacts that approving project TPM14-0005
will have on the Bell-Muir addressed is not addressed in the Initial Study. That deficiency
is inconsistent with CEQA Guidelines section 15126.2, which mandates that an
Environmental Impact Report evaluate and discuss the ways in which a project fosters the
construction of additional housing, either directly or indirectly, in the surrounding
environment. A full EIR is required to evaluate the growth inducing impacts that approving
the proposed subdivision will have on the Bell-Muir Area and west Chico generally.
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EXHIBIT LIST
Exhibit 1 Minutes of July 14, 2005, Planning Commission Meeting
Exhibit 2 Excerpts of Butte County Code Ch. 35 (Right-to-Farm Ordinance)
Exhibit 3 Declaration of Peter D. Peterson and Aerial Photo Depicting Project Area
Exhibit 4 Environmental Analyses of Groundwater Pumped from Wells on Peterson
Property
Exhibit 5 Environmental Analyses of Chico Urban Area Nitrate Compliance Plan –
2014. Results from Monitoring Well 25 (MW25)
Exhibit 6 California Department of Public Health – Nitrate Fact Sheet
Exhibit 7 Excerpts of Chico Urban Area Nitrate Compliance Plan
Exhibit 8 Butte County Department of Environmental Health
Preliminary Review of Project TPM14-0005
Exhibit 9 Excerpts of Memorandum of Tim Snellings
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