By JIM JOHNSON Herald Staff Writer, 02/12/2014
Excerpt Highlights:
After a five-hour hearing, the Marina City Council decided late Wednesday to allow California American Water to drill water sampling bore holes as part of its proposed desalination project.
By a 3-1 vote, the council overturned last week's city Planning Commission decision rejecting Cal Am's bid to drill the bore holes without going through a potentially lengthy process to secure a coastal development permit.
The two bore holes will be drilled this week, according to Cal Am director of engineering Rich Svindland, and the water quality will be tested as part of a required hydrogeological study for the desal project's environmental review.
Led by Mayor Bruce Delgado, the council majority agreed with city staff that the bore holes represented surface mining under city code and wouldn't need a coastal permit. The holes would be drilled on the Cemex site in north Marina.
Councilman Frank O'Connell cast the lone dissenting vote, and councilwoman Gail Morton was absent.
ABSTRACT: The Marina City Council is scheduled to conduct a Special Meeting on Wednesday, February 12, 2014 to “Consider an appeal of the decision of the Planning Commission declining to make an interpretation of Marina Municipal Code (MMC) Section 17.41.260, Surface Mining and Reclamation Standards, pursuant to a request by City Staff in accordance with MMC Section 17.56.020. Specifically, the City Council is asked to determine whether the two proposed temporary exploratory boreholes proposed by California American Water (“Cal Am”) at the CEMEX mining operation are within CEMEX’s “surface mining operation” and therefore within the scope of the existing CEMEX entitlements.” The Agenda Packet is embedded, including Attachments: Proposed Resolution, Exhibit “A” Marina Municipal Code Section 17.41.260, Exhibit “B” Map of Proposed Boreholes, Exhibit “C” Correspondence, Exhibit “D” Appeal and Exhibit “E” Reclamation Plan. Prepared by M. Katherine Jenson, City of Marina CEQA/Land Use Counsel, Rutan & Tucker, LLP, the report states: “Staff believes that the proposed exploratory borings to pump out water to determine mineral content fall under the definition of “surface mining operations” and falls well within the scope of CEMEX’s entitled operations CEMEX is currently entitled to withdraw up to 500 afy of groundwater for its operation. Pursuant to the Reclamation Plan, daily usage of water is over 500,000 gallons. Thus, water extraction is a fundamental part of CEMEX’s operation. The purpose of pumping the water is to “determine the type, extent or quality of minerals present” in each respective test sample. This places this activity within the statutory definition of “prospecting and exploratory activities” and thus, it would be considered to be an entitled “surface mining operations” under CEMEX’s entitlements.As mentioned above, the determination of the scope the CEMEX entitlements will inform the City’s process for examining the exploratory test boreholes. Staff interprets the actions to fall under the activities defined in MMC Section 17.41.260 and within the scope of current CEMEX entitlements. However, the request was directed to the Planning Commission (now to City Council on appeal) for the official interpretation.”
And “At the Planning Commission meeting, there was some discussion and some confusion regarding e-mails and communications from Mr. Stephen Testa, the Executive Officer of the State Mining and Geology Board. Within EXHIBIT “C” is the most current communication from Mr. Testa dated February 6, 2014, at 5:18 pm. Therein he clarifies that the permitting under the City’s zoning ordinances is wholly a matter of city concern. Further, he notes that provided that the proposed activity does not conflict with Reclamation Plan (EXHIBIT “E”), the proposed water sampling would not involve the State Mining and Geology Board.” However, correspondence from attorney Molly Erickson to Mayor Delgado, dated February 5, 2014, states: This Office represents Ag Land Trust, which presents significant new information about the "interpretation" that Cal Am, the CPUC, and your legal counsel are pressuring Marina to adopt. At the January 23 planning commission meeting, Ag Land Trust argued that the "interpretation" violates the state's Water Code and surface mining act.
Today the Executive Officer of the State Mining and Geology Board confirmed that "extraction of groundwater is not deemed a surface mining operation under the Surface Mining and Reclamation Act (SMARA)."
Background: Yesterday, the City of Marina released the staff report for the February 6 planning commission agenda item: a request by Marina planning staff and Marina's outside land use counsel for an interpretation "that the extraction of water to determine its mineral content is a surface mining operation." I forwarded the staff report to the State Mining and Geology Board for its review.
Determination: Today the Board's Executive Officer, Stephen M. Testa, stated:
Based on what you provided me, extraction of groundwater is not deemed a surface mining operation under the Surface Mining and Reclamation Act (SMARA). The City would benefit to consult the statutes and regulations within the state's Water Code.
In other words, the "interpretation" would conflict with California's Surface Mining and Reclamation Act and the California Water Code
Bruce Carlos Delgado, Mayor
Frank O'Connell - Mayor Pro Tem
Gail Morton
Nancy Amadeo
David W. Brown
Wednesday, February 12, 2014 5:30 P.M. Open Session SPECIAL MEETING CITY COUNCIL, AIRPORT COMMISSION, MARINA ABRAMS B NON-PROFIT CORPORATION, AND SUCCESSOR AGENCY OF THE FORMER MARINA REDEVELOPMENT AGENCY |
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