COUNTY OF SAN MATEO
Inter-Departmental Correspondence
PLANNING AND BUILDING DEPARTMENT
DATE:
December 3, 2007
BOARD MEETING DATE:
December 18, 2007
SPECIAL NOTICE/HEARING:
10 days, within 300 feet
VOTE REQUIRED:
Majority
TO:
Honorable Board of Supervisors
FROM:
Lisa Grote, Director of Community Development
SUBJECT:
Consideration of amendments to an existing Coastal Development and Resource Management District-Coastal Zone Permits, pursuant to Sections 6328.4 and 6903 of the County Zoning Regulations; modification of a Surface Mining Permit and Reclamation Plan, pursuant to Section 7703 of the County Ordinance Code; and certification of a Mitigated Negative Declaration, to allow the minor expansion of Pilarcitos Quarry, located at 11700 San Mateo Road (Highway 92), in the unincorporated Half Moon Bay area of San Mateo County. This project is appealable to the California Coastal Commission. (Appeal from decision of the Planning Commission to approve the project.)
County File Number:
PLN 2000-00456 (West Coast Aggregates)
RECOMMENDATION
Deny the appeal and uphold the Planning Commission’s decision to approve and amend the Coastal Development Permit, Resource Management District-Coastal Zone Permit, Surface Mining Permit and Reclamation Plan and certify the Mitigated Negative Declaration.
VISION ALIGNMENT
Commitment: The proposed project keeps the commitment of “Responsive, Effective, and Collaborative Government.” The Planning Commission, in making its decision, found that the proposed project allows the property owner to more fully utilize the property in a manner that does not significantly impact neighboring property. By upholding the Planning Commission’s decision, the Board would be reinforcing this commitment.
Goal: The proposed project achieves Goal number 20: “Government decisions are based on careful consideration of future impact, rather than temporary relief or immediate gain.” In reaching its decision on this project, the Planning Commission considered the staff report and found the project complies with the County’s Zoning Regulations and Local Coastal Program. The Planning Commission determined that this project would have minimal impacts upon surrounding parcels and that such impacts could be mitigated through the conditions of approval, which have been carried over to this report.
BACKGROUND
Proposal: The applicant is proposing to modify the existing permits to mine the area known as the Pilarcitos Quarry. The modification will allow expansion of mining operations onto a 9.2-acre area adjacent and north of the existing mining operations. Current quarry operations involve surface mining of weathered, fractured granite and the production of gravel and sand. No expansion of the processing area or additional equipment is proposed. The applicant is not requesting an increase in the number of truck trips currently allowed for under the existing permits. The applicant is proposing this expansion because the usable material within the existing area of operations is reaching the point of depletion.
Planning Commission Action: On September 26, 2007, the Planning Commission approved the proposed Reclamation Plan amendment on a vote of 3-0 (two commissioners were absent).
Report Prepared By: Michael Schaller, Senior Planner, Telephone 650/363-1849
Appellant: Kevin Lansing
Applicant: West Coast Aggregates (Richard DeAtley)
Owners: Gloria Babuin and Laura Devincienzi
Location: 11700 San Mateo Road, approximately 2 miles east of Half Moon Bay
APNs: 048-350-070 and -030; 056-380-030
Size: 9.2 acres
Existing Zoning: RM-CZ/DR (Resource Management – Coastal Zone/Design Review)
General Plan Designation: General Open Space (OS)
Existing Land Use: Active Quarry
Flood Zone: Zone C (areas of minimal or no flood hazard), FEMA panel 060311-0225, Date: August 5, 1986
Environmental Evaluation: Initial Study and Mitigated Negative Declaration issued with a public review period between July 14, 2007 and August 13, 2007.
Setting: Pilarcitos Quarry is located within the drainage of Nuff Creek, San Mateo County. Nuff Creek is a north-trending tributary of Pilarcitos Creek, which empties into the Pacific Ocean approximately 3.25 miles west of the project site, just north of the City of Half Moon Bay. The project site is situated within Section 15, township 5 south, range 5 west, of the Mount Diablo Base and Meridian on the 7.5' USGS Montara Mountain and Half Moon Bay Quads. Access to the Pilarcitos Quarry is via a private road off of San Mateo Road.
The expansion area is located on the steep eastern slopes of the Nuff Creek drainage. The expansion area occupies a slope above the creek. Nuff Creek traverses the western edge of the expansion area and the existing quarry is to the south. The eastern edge of the expansion area occupies the steep upper slopes of the eastern ridgeline of the Nuff Creek watershed. The western edge of the expansion area is flanked by a dirt road running along the canyon floor just east of the creek itself.
Within the expansion area, Nuff Creek is contained in a steep-sided channel (10-15 feet deep) in the alluvium of the canyon floor. The creek typically exhibits a steady flow of clear water (2-3 inches in depth) over an unconsolidated sandy bed. Much of the creek bed was inaccessible due to the steep stream banks and dense riparian vegetation.
A graded road on the lower slopes of the expansion area provides access to an equipment storage area located in a drainage on the northern edge of the expansion area. A small constructed sediment pond (approximately 30 by 10 feet) is present behind a gravel berm adjacent to and east of the graded road.
The surficial geology in the project area consists of deeply weathered Cretaceous granitic rocks. This rock is exposed along a steep south-facing cliff face that has been cut above the graded road. Elevations range from approximately 380 feet in the creek bed to approximately 1,000 feet on the upper ridgeline.
The soils in the project area are mapped as four types on the San Mateo Area 1961 Soil Conservation Service maps (USDA 1961). The ridgetops, which lie mostly outside the project area, are mapped as Miramar coarse sandy loam, moderately steep, and eroded. The majority of slopes in the expansion area are 41 percent or steeper and are mapped as Miramar coarse sandy loam, very steep, eroded. This soil series is moderately deep over bedrock, with rapid permeability and low water holding capacity. Soils are mapped as Farallone coarse sandy loam, moderately steep, eroded, in small drainages or intermittent streams that feed into the mainstem of Nuff Creek below. Here runoff is slow to medium, permeability is rapid, and the content of loam is influenced by wetness in depressions and drainages. Willows and other hydrophytic plants grow in depressions and drainages in this soil type. The southern slopes of the expansion area, adjacent to the existing quarry, are mapped as Rough Broken Land. This soil series consists of very steep rocky uplands with seldom more than 10 inches of soil material, primarily vegetated by shrubs and a few trees. Vegetation within the expansion area consists of the following categories:
Coastal Scrub Community. The coastal scrub community on the upper portions of slopes in the expansion area is dominated by coyote brush but also includes a large component of poison oak. On the drier west- and south-facing slopes, the scrub includes occasional stands of California sagebrush, California coffeeberry, blue-blossom, and bush monkey-flower. Vegetation on the lower slopes is a mosaic of open areas and plant communities dominated and/or co-dominated by coyote brush, arroyo willow, ceanothus, Douglas fir, and blue gum eucalyptus.
The south-facing slope, parts of which have been disturbed by the construction of roads for the ongoing mining of the existing quarry, supports species associated with drier conditions, including bush monkey-flower, deerweed, yellow bush lupine, paintbrush, fairwell-to-spring, and buckwheat. Patches of relatively bare ground or areas with a sparse cover of shrubs, grasses, and forbs are present on the south-facing slope near the existing quarry, as well as on the south-facing slope of the drainage in the northern portion of the expansion area. According to the biological report, the bare or grassy areas were inaccessible, but a native grass, most likely a needlegrass, and a non-native annual fescue were observed from the road. Weedy species growing along the roads included hare barley, ripgut-brome, yellow sweet-clover, and burclover.
The coyote brush scrub vegetation on the west-facing slope grades into a ceanothus-dominated scrub (blue-blossom and potentially deerbrush), then into a denser, moisture loving shrub and fern community near the base of the slope, adjacent to the riparian vegetation along Nuff Creek. California blackberry and thimbleberry are dominant shrub species that are interspersed with large stands of Chamisso’s hedge-nettle, American stinging nettle, and swordfern.
The north-facing slope supports dense stands of Douglas fir that are, in certain locations, edged by arroyo willow and shade tolerant shrubs such as twinberry, western burning bush, and oceanspray.
Sparse Scrub/Non-Native Grassland. Patches of relatively bare ground or areas with a sparse cover of shrubs are present within the coastal scrub community on most of the south-facing slopes. Areas that are currently in the early phase of revegetation are also included here. Some of these bare or grassy areas on steep slopes supported native grasses such as needlegrass, and non-native annual fescue. Deerweed, yellow bush lupine, paintbrush, farewell-to-spring, and coast buckwheat are also present in some of the steep sparsely vegetated areas. Non-native, weedy species growing along the roads in the expansion area include hare barley, ripgut-brome, oxeye daisy, redstem filaree, Italian thistle, and poison hemlock.
Riparian Forest Community. An approximately 150-foot wide riparian forest community of predominantly red alder occurs along Nuff Creek at the base of the west-facing slope in the expansion area. Mature red alders with a nearly closed canopy reach 30 to 45 feet in height in this area. Where the canopy is almost closed, the understory is mostly composed of ferns such as swordfern, lady fern and 5-finger fern; where sunlight penetrates to the forest floor, shrub species including red elderberry, California blackberry, and thimbleberry provide a dense cover mixed with Chamisso’s hedge-nettle, meadow rue, and other herbaceous species. Alder saplings are abundant, indicting that the forest is regenerating. Portions of the forest along this reach of Nuff Creek have been invaded by blue gum Eucalyptus, an invasive, non-native tree, that, in places, grows taller than the alders.
Central Coast Arroyo Willow Riparian. Arroyo willow thickets are present in various portions of the expansion area. Arroyo willow occurs relatively sparingly along Nuff Creek, but it is the dominant tree along the tributary flowing east to west along the north border of the expansion area, and it occurs with Douglas fir on the north-facing slope. Several large stands of willow are also present in disturbed areas near the roads on the south-facing slope. Some of the thickets are associated with hydrophytic plants such as Chamisso’s hedge-nettle; however, other stands consist of plants associated with upland conditions, including bush monkey flower and yerba buena. Arroyo willow is capable of sending deep roots into the substrate to reach ground water (phreatophytic).
Douglas Fir Stands. Stands of Douglas fir are present on the lower portion of the west-facing slope and from the mid- to upper portions of the north-facing slope. Such trees are commonly found in wetter and more shaded portions of coastal scrubs. A few individuals of evergreen broadleaved trees, madrone and California bay, grow intermixed with the Douglas firs in these stands. The understory is composed of species associated with the Red Alder Riparian Forest community, such as lady fern and swordfern, and/or with species common in the wetter Coastal Scrub community, including Chamisso’s hedge-nettle, cow parsnip, and American stinging nettle. A few individuals of plants associated with woodlands and forests such as false Solomon’s seal and fairy bells are also present.
Sediment Trap. A man-made sediment trap (containing a pond) has been constructed between a cliff-face and a 4-foot high earthen berm along an access road to the top portion of the existing quarry. Its purpose is to receive runoff from the slopes above and to trap sediment. It also captures water that seeps out from the cliff face. The sediment trap is surrounded by woody riparian vegetation consisting of arroyo willow, red alder, and red elderberry and a few annuals including yellow cress. An unidentified aquatic plant (not slender-leaved pondweed) covered approximately 10 percent of the bottom of the pond in the sediment trap. Though this plant was not identified it did not have the characteristics of slender-leaved pondweed, a special-status plant. The sediment trap is subject to routine maintenance (sediment removal) by the quarry operator.
Chronology:
Date
Action
May 10, 2006
-
First Planning Commission (PC) public hearing. Requested amendments conceptually approved at that time. However, item continued to allow time for State Office of Mine Reclamation to review proposed amendment and to prepare formal responses to Coastal Commission comments.
June 14, 2006
-
Second PC public hearing. Item continued to a date uncertain to allow the applicant sufficient time to consult with the U.S. Fish and Wildlife Service.
June 29, 2007
-
Applicant submits revised biological report containing numerous new mitigation measures. This report was prepared in consultation with the California Department of Fish and Game and the U.S. Fish and Wildlife Service.
July 14, 2007
-
Revised Initial Study and Mitigated Negative Declaration issued for public comment.
September 26, 2007
-
Third PC public hearing. Project approved with mitigation measures as recommended by the CDFG and USFWS.
October 11, 2007
-
Appeal to the Board of Supervisors filed.
December 18, 2007
-
Board of Supervisors public hearing.
DISCUSSION
A.
PREVIOUS ACTION
This project was approved by the Planning Commission at their September 26, 2007 hearing. Many of the same issues in this appeal to the Board were also heard by the Planning Commission. After reviewing the letter of appeal, staff did not identify any new issues not discussed by the Planning Commission, nor has any additional information been provided to staff that would alter the previous recommendation to approve and amend the permits for this project.
B.
KEY ISSUES OF THE APPEAL
Mr. Lansing, the appellant, in his letter of appeal (Attachment B) has outlined the basis of his appeal. The following is a summation of the key issues in the letter, followed by staff’s response:
1.
Illegal Piecemealing of the True Larger Project
“The County has committed the fundamental CEQA error of artificially subdividing the true scope of the “project” that must be analyzed. The County is minimizing the project’s true environmental effects and thereby depriving the public of its right to understand the true environmental consequences of the County’s whole actions. Specifically, the County has attempted to define the “project” narrowly to include only the initial expansion area (labeled “H” on the attached map) and then short-cut the public review process by processing a Mitigated Negative Declaration for Area H alone, while eight other expansion areas are being analyzed separately in an EIR.”
Response: The Project continues an ongoing operation that has been subject to review under CEQA at least four (4) times. Except for the move into an adjacent 9.2-acre site, the Project would qualify for a Class 1 categorical exemption as “Existing Facilities” under CEQA Guidelines Section 15301. Analysis here should focus on the specific impacts of moving the operations into the 9.2-acre annex as the rest of the operations stay the same.
In fact, CEQA provides that a subsequent or supplemental EIR is prepared only when it is necessary to explore the environmental ramifications of a substantial change not considered in an original EIR. In fact, CEQA restricts the ability to require an additional EIR unless certain stated conditions are met. (Fund for Environmental Defense v. County of Orange (1998) 204 Cal. App. 3d 1538.) Those conditions are met when:
a.
Substantial changes are proposed in the project, which will require major revisions in the earlier EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects;
b.
Substantial changes occur with respect to the circumstances under which the project is being undertaken which will require major revisions in the EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; or
c.
New information becomes available. In that event, a subsequent or supplemental EIR is only required if (a) the project will have significant environmental effects that were not discussed in the earlier document; (b) the significant effects identified in the earlier EIR will be substantially more severe; (c) mitigation measures that were found infeasible are now feasible and would substantially reduce significant environmental effects; or (d) mitigation measures that are considerably different than those discussed in the EIR would substantially reduce one or more significant environmental effects (Pub. Resources Code, Section 21166; CEQA Guidelines Section 15162).
Operations at the Pilarcitos Quarry have been reviewed under CEQA by an EIR in 1973, a Supplemental EIR in 1994 and two (2) negative declarations in 1998 and 2003. The current application is a request to move existing mining operations, approved under the earlier environmental documents, into a 9.2-acre area immediately adjacent to the existing area of operation. The proposal does not alter the quarry operation. The applicant will maintain the same level of operation, equipment and truck trips. The processing plant will remain at its present location, and the production level will remain unchanged. No new mobile equipment will be added. All of the mitigation measures currently implemented, as part of the ongoing operation, will continue unchanged.
Staff has reviewed the current Project and determined that it is not a catalyst or necessary step to the potential development of the remainder of the quarry under the long-term plan. The 9.2-acre site under consideration in the current Project is an independent area. Expansion into this area will not necessarily or reasonably lead to development of other areas in the quarry. Reviewing these facts against the standards and case law under CEQA, it is reasonable to conclude that the immediate Project is sufficiently separate from the long-term reclamation plan to allow the immediate Project to proceed at this time.
2.
Significant Impacts not disclosed or mitigated in the CEQA Document
“At the September 26, 2007 public hearing, Community Development Director Lisa Grote misinformed the County Planning Commission that USFWS and CDFG would wish to start their permitting procedures after the County has certified the CEQA document. Ms. Grote’s statement is directly contradicted by the joint USFWS/CDFG letter of May 7, 2007. Unfortunately, this piece of misinformation seemed crucial in swaying the Planning Commission’s decision to approve the CEQA document.”
Response: The statements made by Ms. Grote, Community Development Director, were correct and the statement made in the May 7, 2007 joint USFWS/CDFG letter is incorrect. DFG’s own web site clarifies the role of the Department within the CEQA process thus:
Lead Agency Role
A Lead Agency is the California government agency that has the principle responsibility for carrying out or approving a project, and therefore is principally responsible for preparing CEQA documents. The lead agency also determines whether a negative declaration or an environmental impact report will be required and be prepared (CEQA Statutes, Sections 21080.3 and 21104.2; Guidelines, Sections 15050 and 15367). The Department functions as a lead agency when it proposes to carry out its own projects, such as, projects on the state wildlife areas, projects on state fish hatcheries, or habitat or stream restoration projects that the Department undertakes or contracts out to have done. The Department can also be a lead agency when it is the only agency issuing a permit and no other agency is involved, as is sometimes the case with 1600 Streambed Alteration Agreements.
Responsible Agency Role
A Responsible Agency is an agency other than the lead agency that has a legal responsibility for also carrying out or approving a project. It must actively participate in the Lead Agency’s CEQA process, review the Lead Agency’s CEQA document and use that document when making a decision on the project. In acting on whatever aspect of the project requires its approval, the Responsible Agency must rely on the Lead Agency’s environmental document to prepare and issue its own findings regarding the project (CEQA Guidelines, Sections 15096 and 15381). For example, the Department takes on the role of a responsible agency when a lead agency requires from the Department a 1600 Streambed Alteration Agreement for a project or a 2081(b) California Endangered Species Act (CESA) Incidental Take Permit for the taking of threatened and endangered species incidental to a project. The Department must rely on the lead agency’s environmental document prepared for the project to make a finding and decide whether or not to issue an incidental take permit.
In the case of this project, the County is the Lead Agency and DFG serves as a Responsible Agency. Prior to the Planning Commission’s consideration of this application at the September 26, 2007 hearing, staff worked closely with DFG and the applicant’s consultants to develop additional mitigation measures to address the Department’s concerns. As an aside, it is not yet certain that the applicant will need to obtain an incidental take permit for this project. The applicant has incorporated numerous avoidance measures that were developed in consultation with DFG. The Department has suggested that inclusion of these measures as conditions of approval will avoid the need for an incidental take permit. However, it reserves the right to make a final decision on this matter until after the Lead Agency permitting process has been completed.
3.
Conditions of approval require the applicant to adopt mitigation measures to be identified in a future study.
“Condition of Approval 35 requires the applicant to show evidence of obtaining various permits issued by USFWS and CDFG “prior to initiating any ground disturbing activities…” The joint USFWS/CDFG letter of May 7, 2007 indicates that these future permitting procedures are expected to result in “significant modification” to the project and its mitigation measures. The permitting procedures of USFWS and CDFG constitute a “future study” of the adequacy of the proposed project for protecting listed species. The County’s action of requiring the project to adopt mitigations measures stemming from a future study of the project (as embodied in the permitting procedures of USFWS and CDFG) is a violation of the guidelines for implementing CEQA.”
Response: On October 18, 2006, staff met with the applicant, his consultants, and representatives of the USFWS and CDFG to discuss biological resource issues at the project site. The applicant’s consultant (LSA Associates) continued in their discussions with the two agencies over the next eight months with periodic updates to staff as to the progress and content of those discussions. On May 7, 2007, both agencies issued a joint letter officially outlining their concerns regarding the project, as it was then proposed. They felt that there was insufficient data, at that time, to allow them to issue their respective permits, if required. Hence the reference to future studies. On June 29, 2007, the applicant’s consultant submitted a revised biological report (with mitigation and monitoring plan) to the County. In preparing this revised report, the applicant’s consultant worked with CDFG and USFWS to address the concerns raised in the May 7 letter.
Based upon the additional information contained in the revised biological report, staff revised and recirculated, through the State Clearinghouse, the Mitigated Negative Declaration per Section 15073.5 of the CEQA Guidelines. CDFG has reviewed and commented on the revised environmental document. Their comments were incorporated into the conditions of approval that were adopted by the Planning Commission on September 26, 2007. The Revised Negative Declaration with new and revised mitigation measures is attached to the staff report as Attachment C. Condition 35 is a variant of a standard condition that staff typically applies to projects that may require additional permits from other agencies. This condition puts the permit holder on notice that they cannot ignore the permitting requirements of other State and Federal agencies.
4.
LCP Non-Compliance Issues
The attached letters from California Coastal Commission staff dated May 5, 2006 and September 25, 2007 identify numerous areas of the project that are not in compliance with the County’s certified LCP. These points are directly incorporated into this appeal by reference.
Response: The May 5, 2006 letter from the Coastal Commission was in response to the original draft Initial Study for this project. As discussed above, that document was substantially revised based upon new biological information, and subsequently re-circulated to a number of agencies, including the Coastal Commission. The Commission’s letter of September 25, 2007 is in response to that re-circulated document. Since the first letter pertains to a no longer valid document, staff will focus upon the September 25, 2007 letter.
Coastal Commission Comment (in September 25 letter): California Red-Legged Frogs have been found within the proposed quarry expansion area. FWS and DFG biologists believe the frog to be present within the expansion area and the project will likely adversely affect this species.
Response: DFG has not stated that the project will adversely affect the frog. If that were the case, they would be requiring the applicant to obtain an incidental take permit under the California Endangered Species Act (CESA). The DFG has stated that if the mitigation measures are implemented as proposed and required by the County, then there should be no “take” of the species (take includes significant impact to a species primary habitat). The Coastal Commission staff made a statement regarding an adverse effect upon this species based upon incomplete information. At the time the September 25 letter was written, they did not have the benefit of the additional correspondence between CDFG and applicant’s biologist. This additional information was included as part of the September 26, 2007 staff report which was mailed to the Coastal Commission prior to the September 26 hearing. Staff has not received any additional comments from the Coastal Commission since the September 26 hearing.
Coastal Commission Comment (in September 25 letter): Therefore, it appears the proposed Area 2 contains sensitive habitat for CRLF and is subject to the sensitive habitat policies of the certified LCP. LCP Policy 7.4 states that only “resource dependent” uses are permitted in sensitive habitats, and quarry-mining operations are not defined as resource dependent uses in any sensitive habitat area. In addition, LCP Policy 7.3 prohibits any development or land use which would have a significant adverse impact on sensitive habitat areas.
Response: It is true that there are areas within the Expansion Area that contain sensitive habitat. Those areas have been mapped and buffer zones established around them. No mining activities are proposed within these areas or the buffer zones. The Planning Commission approved a number of conditions for this project, which are designed to minimize potential impacts to a less than significant level. The Planning Commission determined that, with these conditions in place, there would not be a significant adverse impact.
Coastal Commission Comment (in September 25 letter): We note that various mitigation measures for the proposed expansion outlined in the Negative Declaration involve the potential relocation of frogs, tadpoles, or eggs. Bolsa Chica Land Trust v. Superior Court (1999) 83 Cal.Rptr. 85 affirmed that the relocation of sensitive habitat areas is prohibited under the California Coastal Act. If the proposed Area 2 expansion area is sensitive habitat for the CRLF, the proposed development/mining activities appears to be inconsistent with the LCP.
Response: The decision in the Bolsa Chica case specifically prohibits moving habitat, or in the specifics of that case, the replacement of one habitat area with an enhanced or larger habitat area. However, there is no specific language in the Court’s decision that prohibits the relocation of the animals that may use that habitat. The California Endangered Species Act (CESA) is the specific State law that regulates the trapping and handling of listed endangered species through the “Incidental Take” permitting process. The applicant is aware of this permitting requirement and has been in discussions with CDFG regarding the application requirements.
Coastal Commission Comment: (A)s described above for CRLF, it appears the proposed Area 2 contains sensitive habitat for San Francisco Garter Snake and is subject to the same sensitive habitat policies of the certified LCP.
Response: As with the discussion above regarding the CRLF, the Planning Commission has determined that the project, as conditioned, will not have a significant adverse impact to the garter snake.
Coastal Commission Comment: Although suitable habitat for marbled murrelet does not exist directly within Area 2, Area 2 is located adjacent to murrelet habitat and near Nuff Creek, which could serve as a flyway for murrelets during daily migrations between the Pacific Ocean and the Habitat Area. According to FWS and DFG proposed mining activities at Area 2 could preclude these activities and adversely affect the species.
Response: CDFG’s initial assessment of the data contained in the biological report lead to an assumption that there could be an adverse impact to the Marbled Murrelet. To prevent potential impacts to the murrelet, CDFG has recommended buffer zones for the Nuff Creek area of the project site. The applicant has agreed to this recommendation and the project has been conditioned appropriately. The applicant has begun a series of protocol-level surveys for the murrelet. During the 2007 survey season, no murrelets were identified by the survey team. Again, the mitigation measures developed with the assistance of CDFG led the Planning Commission to determine that the project, as conditioned, would not have a significant adverse impact upon the murrelet.
Coastal Commission Comment: Certain areas of dense vegetation on the steep north facing slopes of the expansion area were not surveyed, and could contain sensitive habitat for western leatherwood plants, a California Native Plant Society (CNPS) List 1B species. Mitigation measure number 2 includes biological monitoring during quarry activities and transplantation of the plants if they cannot be avoided. LCP Policy 7.33 allows only a limited amount of non-impactive uses (e.g. education and research) in sensitive habitats of rare species such as the western leatherwood. LCP Policy 7.3 prohibits any land use or development which would have significant adverse impacts on sensitive habitat areas. As described above, Bolsa Chica Land Trust v. Superior Court (1999) 83 Cal.Rptr. 85 affirmed that the relocation of sensitive habitat areas (i.e. the transplanting of western leatherwood) is prohibited under the California Coastal Act. Therefore, we recommend that this mitigation be revised to require full avoidance of the plant and protection the plant and its habitat in place.
Response: No western leatherwood was identified by the applicant’s consultant during the field reconnaissance, however, the biological report acknowledges that not all areas of the expansion area could be effectively surveyed at the time of report preparation due to steep slopes and dense vegetation. In response, a mitigation measure was proposed by the applicant and reviewed, modified, and approved by the Planning Commission, with input from CDFG. That condition reads:
3.
During the clearing of vegetation from the expansion area, a biological monitor familiar with maritime chaparral and western leatherwood shall work with the vegetation clearing crew. Heavy equipment shall clear the vegetation from one or more transects to provide the monitor access. The biological monitor shall survey the vegetation along the transect edges for maritime chaparral and western leatherwood and if none are found will give authorization to continue vegetation clearing. If plants typically associated with maritime chaparral are identified, then the applicant shall contact both the County Planning Department and the CDFG immediately for further consultation.
The second part of this condition requires transplanting of western leatherwoods, if found. Transplanting of these listed plants is allowable under the California Endangered Species Act if you have obtained an incidental take permit. The Coastal Commission staff cites LCP Policy 7.3 (Protection of Sensitive Habitats) in its comment. This comment is predicated upon LCP Policy 7.1 (Definition of Sensitive Habitats), which defines sensitive habitats as:
“(A)ny area in which plant or animal life or their habitats are either rare or especially valuable and any area which meets one of the following criteria: (1) habitats containing or supporting “rare and endangered” species as defined by the State Fish and Game Commission, (2) all perennial and intermittent streams and their tributaries, (3) coastal tide lands and marshes, (4) coastal and offshore areas containing breeding or nesting sites and coastal areas used by migratory and resident water-associated birds for resting areas and feeding, (5) areas used for scientific study and research concerning fish and wildlife, (6) lakes and ponds and adjacent shore habitat, (7) existing game and wildlife refuges and reserves, and (8) sand dunes.”
Western Leatherwood is a deciduous shrub that occurs in shady woodlands, riparian forests and, less often, in mesic chaparral or scrub. It tends to grow as an individual specimen rather than in groups. This plant is not specifically tied to a particular soil or geographical area. It is not an indicator species of a particular habitat type. It just happens to be a plant that is not very common.
The Fish and Game Commission has not listed the Western Leatherwood as rare or endangered under the California Endangered Species Act. The other seven qualifying criteria are not applicable to the issue of this plant. While this plant is listed by the California Native Plant Society, it is not unique to only this location. Western Leatherwood is found in a number of locations around the Bay Area, including Edgewood County Park. Because Western Leatherwood fails both parts of the test for sensitive habitat, if it is even present on the project site, staff holds the position that the Expansion Area is not sensitive habitat for the Western Leatherwood. Because it is not sensitive habitat, as defined by the County LCP, the provisions of the Bolsa Chica case are not applicable, including the prohibition against transplanting individual specimens, if they are found.
Coastal Commission Comment: San Francisco Dusky Footed Woodrat is listed by the DFG as a California Species of Special Concern. According to the June 2007 Biological Resources Report, several dusky-footed woodrat nests were observed in the expansion area and, according to DFG, the site provides ideal habitat and the project would likely cause impacts to these species. The favored habitat of the woodrat is dense chaparral, coastal scrub, and riparian and oak woodland, and the woodrats build large conspicuous nests made of sticks that are used and occupied by successive generations. Based on the above, it appears Area 2 contains several areas of sensitive habitat for the Dusky-footed woodrat, as defined by LCP Policy 7.1, and is subject to all applicable LCP sensitive habitat policies. Policy 7.3 prohibits any land use or development that would have significant adverse impacts to sensitive habitats areas and development shall be sited and design to prevent impacts. As proposed, it does not appear that the proposed project is consistent with these policies because it would involve removal of San Francisco Dusky Footed Woodrat habitat. Further Mitigation measure #28 (temporary shelter for woodrats) and #29 (trapping) also appears to be inconsistent with the LCP sensitive habitat policies, which do not allow for relocation of sensitive habitats. As noted above, Bolsa Chica Land Trust v. Superior Court (1999) 83 Cal.Rptr. 85 affirmed that the relocation of sensitive habitat areas is prohibited under the California Coastal Act. To avoid the sensitive habitat, we recommend that 100-foot buffer areas be required between woodrat habitat and the proposed mining activities.
Response: As with the Western Leatherwood, the project site is neither unique or rare in supporting dusky-footed woodrats. This species can be found in a number of different habitat types and locations throughout San Mateo County. Moreover, this species is not listed by the Fish and Game Commission as “rare or endangered” which is the standard for review under LCP Policy 7.1 (Definition of Sensitive Habitats). Because this species doesn’t meet the tests of Policy 7.1, the Bolsa Chica decision is not applicable. Therefore the two cited conditions, requested by CDFG and agreed to by the applicant are allowable.
C.
KEY ISSUES
1.
Conformance with General Plan
The proposed surface mining permit and reclamation plan amendments have been reviewed against the policies contained within the County General Plan. The Planning Commission has determined that the following policies are applicable:
a.
Chapter 1 - Vegetative, Water, Fish and Wildlife Resources
Policy 1.22 (Regulate Development to Protect Vegetative, Water, Fish and Wildlife Resources) requires land use and development activities to be regulated so as to prevent, and if infeasible, mitigate to the extent possible, significant adverse impacts on vegetative, water, fish and wildlife resources. The project, by its nature, will have a significant impact upon vegetative resources within the expansion area. There is no way to avoid this and still achieve the goal of resource extraction. This places the focus upon mitigating these impacts to the greatest extent possible. The applicant has submitted a reclamation plan for the expansion area, as required by State and County regulations. This plan includes a revegetation component for the project site. Full implementation of this plan will substantially restore the vegetative and biological value of the site.
Policy 1.27 (Regulate Development to Protect Sensitive Habitats) requires land uses and development activities within and adjacent to sensitive habitats to be regulated in order to protect critical vegetative, water, fish and wildlife resources; protect rare, endangered, and unique plants and animals from reduction in their range or degradation of their environment; and protect and maintain the biological productivity of important plant and animal habitats. Policy 1.28 (Establish Buffer Zones) requires the establishment of necessary buffer zones adjacent to these sensitive habitats. As discussed under the site description section, there are several areas that have been identified by the consulting biologist as sensitive habitat areas. The applicant has established 100-foot buffer zones around the limits of these habitat areas. The applicant has designed its grading plan for the expansion area to avoid these buffer zones and their associated sensitive habitat. Additionally, through the public hearing and environmental review process, the Planning Commission has included conditions requiring the erection of exclusion fencing to keep wildlife species from entering into the mining area. Other conditions that the Planning Commission is requiring include site inspections by biologists prior to the beginning of mining activities and worker training to identify sensitive species. The Planning Commission found that, with the inclusion of these conditions, the applicant’s grading plan for the expansion area does comply with these two policies.
Policy 1.38 (Control Incompatible Vegetation, Fish and Wildlife). This policy encourages the control of vegetation, fish and wildlife resources which are harmful to the surrounding environment. The quarry has had an on-going problem with eucalyptus and pampas grass infestation. To combat this problem, the quarry has implemented an annual eradication program. This program has been carried forward as part of the revegetation plan for the expansion area.
b.
Chapter 2 – Soil Resources
Policy 2.24 (Regulate Surface Mining Operations Against Accelerated Soil Erosion). This policy calls for the regulation of surface mining operations to protect against accelerated soil erosion and sedimentation through measures which ensure siltation control and site reclamation. The applicant currently has a NPDES permit from the Regional Water Quality Control Board. Approval of this proposed expansion will require the applicant to update their Storm Water Pollution Prevention Plan (SWPPP) on file with the Regional Board. Compliance with these Federal Clean Water regulations will also keep the Quarry in compliance with the County’s regulations as well.
c.
Chapter 3 – Mineral Resources
Policy 3.11 (Encourage the Extraction of Minerals Located Within Significant Mineral Resource Areas). This policy encourages the extraction of minerals located within Significant Mineral Resource Areas provided the mineral resource extraction would not be in serious conflict with existing land uses, land uses proposed in the General Plan and area plans, and sensitive habitats. The quarry property is recognized as a Significant Mineral Resource Area to the region and State by the State Mining and Geology Board, and in the County’s General Plan. Expansion of the current quarry operations into the new area would not be in conflict with existing uses (the quarry itself) or surrounding land uses (undeveloped open space). As discussed above, the expansion of the operations will not impact sensitive habitats because of the avoidance measures the applicant has taken in designing their grading plan and the mitigation measures required by the Planning Commission.
d.
Chapter 4 - Visual Quality
Policy 4.18 (Surface Mining Operations). This policy requires the regulation of surface mining operations to protect visual quality through measures requiring revegetation and restoration, to the extent practicable. As discussed previously, there is a revegetation component to the applicant’s proposed reclamation plan amendment. Once the replacement vegetation reaches maturity, the visual impact caused by the expansion will be reduced to a less than significant level.
Policy 4.39 (Scenic Roads). This policy gives special recognition and protection to travel routes in rural and unincorporated urban areas which provide outstanding views of scenic vistas, natural landscape features, historical sites and attractive urban development. The project site lies within the boundaries of the San Mateo Road County Scenic Corridor. However, because of intervening topography and vegetation, the quarry site is not visible from San Mateo Road. The shoulders of the two ridges that comprise the Nuff Creek watershed have elevations of 948 ft. and 856 ft. respectively as they approach San Mateo Road.
e.
Chapter 7 - General Land Use
Policy 7.15 (Designation of Land Uses). The County’s General Plan designates the project site as General Open Space. Allowed uses in this classification include resource management and production. The mining of sand and gravel falls into this use classification.
2.
Conformance with the Local Coastal Program
The proposed reclamation plan amendment has been reviewed against the policies contained within the Local Coastal Program. Staff has determined that the following policies are applicable:
a.
Sensitive Habitats Component
Policy 7.1 (Definition of Sensitive Habitats). This policy defines sensitive habitats as any area in which plant or animal life or their habitats are either rare or especially valuable and any area such as perennial and intermittent streams and their tributaries, and lakes and ponds and adjacent shore habitat. There are areas within the expansion area which meet the definition of Sensitive Habitats, specifically the sediment pond, streams and their tributaries. These have been identified on the applicants site plan and will be discussed further under Policy 7.7.
Policy 7.7 (Definition of Riparian Corridors). This policy defines riparian corridors by the limit of riparian vegetation (i.e., a line determined by the association of plant and animal species normally found near streams, lakes and other bodies of freshwater). The biological report identifies several areas around the proposed expansion area that meet the definition of riparian corridors. Those areas have been denoted on the attached grading plans as well as their required 30-foot buffer zones per Policy 7.11 (Establishment of Buffer Zones). The applicant has designed its grading for the expansion area to avoid all riparian corridors and buffer zones. Additionally, the Planning Commission is requiring as a condition of approval, the implementation of erosion control measures along the edges of all buffer zones as well as reptile/amphibian exclusion fencing to prevent any impact to the sensitive habitat contained within these corridors.
Policy 7.14 (Definition of Wetland). This policy defines wetlands as an area where the water table is at, near, or above the land surface long enough to bring about the formation of hydric soils or to support the growth of plants which normally are found to grow in water or wet ground. The biological report prepared for this reclamation plan amendment identifies several areas around the periphery of the proposed expansion area that meet this definition of wetlands. As with the riparian corridor areas, the applicant is proposing to completely avoid these areas as well as their associated buffer zones per Policy 7.18 (Establishment of Buffer Zones).
b.
Visual Resources Component
Policy 8.5 (Location of Development) requires that development be located on a portion of the parcel where the development is least visible from State and County Scenic Roads and is least likely to significantly impact views from public view points. As discussed previously, the project site is located within the boundaries of the San Mateo Road County Scenic Corridor, which is the nearest public viewing point. Because of intervening topography and vegetation, the quarry site is not visible from San Mateo Road or Skyline Boulevard.
Policy 8.6 (Streams, Wetlands, and Estuaries). This policy requires all new development to be setback from the edge of streams and other natural waterways a sufficient distance to preserve the visual character of the waterway. As discussed under the biological resources section, all grading will occur outside of the required buffer areas for the intermittent streams within the expansion area. These buffer areas serve not only to protect the biological resources within these stream corridors, but also their visual character. The Planning Commission does not believe that any additional buffer zone is required to comply with this policy.
Policy 8.9 (Trees). This policy requires new development to be located and designed to minimize tree removal. Portions of the expansion area are populated by stands of Douglas Fir. It will not be possible to mine the expansion area without removing these trees. To offset the loss of this visual resource, the Planning Commission is requiring, as a condition of approval, that the applicant incorporate tree replacement into their revegetation plan.
Policy 8.28 (Definition of Scenic Corridors). This policy defines scenic corridors as the visual boundaries of the landscape abutting a scenic highway. As stated previously, the interior of Nuff Canyon (the project site) is screened from view from San Mateo Road by the intervening topography. The Canyon is relatively narrow and the two ridges that form its boundary squeeze down and kink to the east at the junction with San Mateo Road. This topographic characteristic essentially blocks the view of motorists into the Canyon and prevents them from seeing the upper reaches of the canyon as well. As such, even though the project site is within the mapped boundaries of the scenic corridor, the true visual boundary of the corridor is substantially less and does not extend into the project site.
3.
Compliance with Resource Management–Coastal Zone District Regulations
The project site is located within the RM-CZ District (Resource Management-Coastal Zone). Quarries are an allowed use in this zoning district subject to the issuance of a Surface Mining Permit. The project complies with the policies and objectives of this district as contained within Chapter 36 of the County Zoning Regulations.
Pursuant to Section 6911 of the County Zoning Regulations, all proposed development within the RM-CZ zoning district requires a Development Review Permit, pursuant to the criteria contained within Chapter 36A.2 of the Zoning Regulations. Staff has reviewed the proposed project against the criteria within this Chapter and found the following that apply:
Environmental Quality Criteria
Standards for emission of air pollutants must be met, for protection of crops, the natural environment, and public health.
The quarry’s processing equipment is operated under separate, existing permits from the Bay Area Air Quality Management District. There is no change proposed in the number or type of processing equipment at the quarry. There will be some dust generated during the grading activities. However, there is a lack of sensitive receptors in the general project vicinity, and agriculture is not practiced within the confines of Nuff Canyon. This expansion project has been conditioned to require the applicant to obtain (if necessary) and comply with all permitting requirements of the Bay Area Air Quality Management District.
Developments resulting in long term noise levels that may have a substantial detrimental effect on resources or the quality of the environment shall be prohibited.
The current mining and processing activities at the project site generate a certain noise level which will not increase with the opening of the expansion area. There will be no change in the level noise generated by this project. Again, there are no sensitive receptors in the immediate project area.
Site Design Criteria
Wherever possible, vegetation removed during construction shall be replaced. Vegetation for the stabilization of graded areas or for replacement of existing vegetation shall be selected and located to be compatible with surrounding vegetation, and should recognize climatic, soil and ecological characteristics of the region.
The applicant has submitted a revegetation plan (See Attachment C, Page 59) as part of their reclamation plan for the expansion area. This plan calls for revegetating the finished slopes and adjacent areas in one of four plant communities: grassland, riparian, coastal scrub, and evergreen. Each of these plant communities are comprised of native plant species or species that are already common to the project site.
Water Resources Criteria
Solid and liquid waste discharge and disposal shall not be permitted to contaminate water resources or otherwise adversely affect a marine, aquatic or riparian environment. All discharges that might affect a water body shall comply with discharge requirements as established by the Regional Water Quality Control Board.
The applicant has included a drainage plan (See Attachment C, Page 43) as part of their reclamation plan for the expansion area. Benches constructed on the slopes will capture runoff and convey it laterally to a small sediment trap on each bench and then along rock-lined ditches or in pipes to a sediment pond that will be constructed at the bottom of the ridge. The sediment traps and pond will remove sediment from runoff. The sediment pond at the bottom of the ridge will then be tied into the quarry’s existing sediment control system. As previously mentioned, the project is subject to an NPDES permit issued by the Regional Water Quality Control Board. Approval of this proposed expansion will require the applicant to update their Storm Water Pollution Prevention Plan (SWPPP) on file with the Regional Board. Compliance with these Federal Clean Water regulations will also keep the Quarry in compliance with the County’s regulations as well.
Site preparation procedures and construction phasing shall be carefully controlled to reduce erosion and exposure of soils to the maximum extent possible.
As mentioned previously, a condition has been included which requires the implementation of erosion control measures along the periphery of the expansion area to prevent the introduction of eroded material into adjacent riparian habitat areas. The drainage plan discussed above will capture sediment-laden runoff before it enters the Nuff Creek drainage system. The ponds allow sediment to drop out of the water, where it is regularly removed to maintain capacity in the ponds.
4.
Compliance with County Surface Mining and Reclamation Ordinance
Under the provisions of Section 7703.3 of the County Code, the following findings for Reclamation Plans (and amendments) shall be required:
a.
That the Reclamation Plan complies with SMARA Section 2772 and Section 2773, and any other applicable provisions.
Section 2772 outlines the application requirements for a reclamation plan. The applicant’s plan contains this required information, including:
(1)
A map that includes the boundaries and topographic details of the lands, a description of the general geology of the area, a detailed description of the geology of the area in which surface mining is to be conducted, the location of all streams, roads, and utility facilities within, or adjacent to, the lands, the location of all proposed access roads to be constructed in conducting the surface mining operation.
(2)
A description of the manner in which reclamation, adequate for the proposed use or potential uses will be accomplished.
Section 2773 requires financial assurances of each surface mining operation to ensure reclamation is performed in accordance with the surface mining operation's approved reclamation plan. In order to comply with this Section, the applicant has provided an estimate of the cost to reclaim the expansion area. Staff has reviewed this estimate and believes it to be realistic. The applicant will need to incorporate this estimate into the overall quarry reclamation estimate. In addition to the County’s review of this estimate, the State Office of Mine Reclamation must also approve the estimate total. Once both agencies have approved the estimate, then the applicant must revise their existing bond to reflect the new amount. The Planning Commission has included a condition of approval that reflects this requirement.
b.
That the Reclamation Plan complies with applicable requirements of State Regulations (CCR Sections 3500-3505, and Sections 3700-3713).
Section 3500 outlines the purpose of this subchapter, which is to establish state policy for the reclamation of mined lands and the conduct of surface mining operations. This section is essentially a preamble and has no operative policies.
Section 3501 provides definitions of various mining terms.
Section 3502 outlines the required elements of reclamation plans. This mirrors Section 2772 as discussed above. This section also discusses when an existing reclamation plan must be amended. Specifically, should an expansion of an operation into an area not covered by an approved reclamation plan be determined by the lead agency to be a substantial deviation, an amended reclamation plan shall be prepared that ensures adequate reclamation for the surface mining operation. The applicant has submitted an amended reclamation plan, which is the subject of this analysis. The amended reclamation plan is included as Attachment C.
Section 3503 addresses surface mining and reclamation practice, including erosion and water quality control, disposal of overburden and the revegetation of the project site. Erosion and water quality control measures were discussed previously, as was revegetation of the project site. Due to the geologic conditions of the project site, there is little overburden to be disposed.
Section 3504 outlines the Lead Agencies requirements for the administration of surface mining permits and reclamation plans. These requirements include annual inspections of all quarries and review of their financial assurances. The existing permit for the quarry has conditions on it that require an annual inspection and review of the financial assurances. Those conditions will continue to apply with this amendment.
Section 3505 discusses exceptions to the requirements of the Surface Mining and Reclamation Act. This project does not qualify for one of these exceptions.
Section 3700 is the preamble for Article 9 of the Surface Mining and Reclamation Act and discusses the applicability of the reclamation standards contained within that section.
Section 3701 provides definitions of various reclamation terms.
The remaining sections identified above (Sections 3702 – 3713) address performance standards for Wildlife Habitat; Slope Stability, and Recontouring; Revegetation; Drainage, Erosion Control; Building, Structure, and Equipment Removal; Stream Protection; Topsoil Salvage, Maintenance, and Redistribution. These issues have been discussed previously, under the General Plan and Local Coastal Program compliance.
c.
That the Reclamation Plan and potential use of reclaimed land pursuant to the plan are consistent with this Chapter and the County’s General Plan and any applicable resource plan or element.
The applicant is proposing open space and agriculture as end uses for the quarry site. These are preferred uses within the General Open Space category of the General Plan.
d.
That the Reclamation Plan has been reviewed pursuant to CEQA and the County’s environmental review guidelines, and all significant adverse impacts from reclamation of the surface mining operations are mitigated to the maximum extent feasible.
A Mitigated Negative Declaration was prepared for this project. Per the requirements of the CEQA Guidelines, this document was distributed through the State Clearinghouse to applicable State agencies including the Office of Mine Reclamation. The Planning Commission has included mitigation measures to offset the potential impacts of this Reclamation Plan amendment to the environment. The existing conditions of approval (formulated under previous environmental reviews) remain in effect and are included as conditions of approval for this amendment as well.
e.
That the land and/or resources such as water bodies to be reclaimed will be restored to a condition that is compatible with, and blends in with, the surrounding natural environment, topography, and other resources, or that suitable off-site development will compensate for related disturbance to resource values.
At the completion of mining the benched slopes in both the current mining area and in the expansion area will be revegetated with native groundcover and shrubs. Clusters of trees will be planted along and adjacent to the drainage channels. In the current work area, Nuff Creek will be restored as an open drainage feature and native riparian vegetation will be planted along the margins. The canyon floor, which is already disturbed in the current work area, will be re-soiled and planted with an erosion control seed mix. This area will be suitable for agriculture, upon completion of the reclamation measures.
f.
That the Reclamation Plan will restore the mined lands to a usable condition which is readily adaptable for alternative land uses consistent with the General Plan and applicable resource plan.
As discussed above, the benched slopes of the mined areas will be revegetated with native plants. Once restored, these areas will comply with the General Open Space designation of the County General Plan. It is intended to restore the canyon floor to a condition that is suitable for agricultural use. Agriculture is considered a compatible use in general open space lands, according to Policy 9.42 of the General Plan.
D.
ENVIRONMENTAL REVIEW
An Initial Study was completed and a Mitigated Negative Declaration issued in conformance with CEQA guidelines. The public review period for this document was July 14, 2007 through August 13, 2007.
FISCAL IMPACT
If the project is approved and constructed, additional property taxes will be assessed.
ATTACHMENTS
A.
Recommended findings and conditions of approval.
B.
Appellant’s letter of appeal.
C.
Location Map
D.
Initial Study and Mitigated Negative Declaration
E.
Biological Resources Report (June 2007)
F.
Mining and Reclamation Plan (October 2006)