HomeMy WebLinkAbout20050771.tiff HEARING CERTIFICATION
DOCKET NO. 2005-20
RE: SITE SPECIFIC DEVELOPMENT PLAN AND USE BY SPECIAL REVIEW PERMIT#1350
FOR A MINERAL RESOURCE DEVELOPMENT FACILITY, INCLUDING SAND AND
GRAVEL MINING, IN THE A (AGRICULTURAL) ZONE DISTRICT - AGGREGATE
INDUSTRIES -WCR, INC.
A public hearing was conducted on March 16, 2005, at 10:00 a.m., with the following present:
Commissioner William H. Jerke, Chair
Commissioner M. J. Geile, Pro-Tem - EXCUSED
Commissioner David E. Long
Commissioner Robert D. Masden
Commissioner Glenn Vaad
Also present:
Acting Clerk to the Board, Esther Gesick
Assistant County Attorney, Lee Morrison
Planning Department representative, Kim Ogle
Health Department representative, Char Davis
Public Works representative, Donald Carroll
The following business was transacted:
I hereby certify that pursuant to a notice dated February 25,2005,and duly published March 2,2005,
in the Fort Lupton Press, a public hearing was conducted to consider the request of Aggregate
Industries - WCR, Inc., for a Site Specific Development Plan and Use by Special Review
Permit#1350 fora Mineral Resource Development Facility,including Sand and Gravel Mining,in the
A (Agricultural) Zone District. Lee Morrison, Assistant County Attorney, made this a matter of
record. Chair Jerke advised the applicant's representative, Mike Refer, that he has the option of
continuing this matter to a date when the full Board will be present. However, if he decides to
proceed today, it will require three affirmative votes,or in the case of a tie vote,Commissioner Geile
will listen to the record and make the determining vote. Mr. Refer indicated he would like to proceed
today.
Kim Ogle, Department of Planning Services,presented a brief summary of the proposal and entered
the favorable recommendation of the Planning Commission into the record as written. He gave a
brief description of the location of the site,which consists of irrigated and non-irrigated river bottom
and pasture, and stated the majority of the site is in the 100-year floodplain. He stated
improvements on the site include a tree nursery,and he gave a brief description of the surrounding
land uses. He stated the total area is 421 acres,and 245 acres are proposed to be mined resulting
in six large water storage reservoirs for the City of Westminster. Mr. Ogle stated the applicant
recently discovered an eagle's nest on the site,and they are working with the appropriate agencies
to determine how to address the situation. He stated this will be a dry pit operation,with a mining
life of eight to twelve years, and a maximum of 13 employees working two shifts. He stated the
mined material will be transported to the site across the river for processing and then hauled from
that site(Amended Use by Special Review Permit#905). He further stated the site will be accessed
from Weld County Roads 23.5 and 22.75, and the applicant will use the existing haul routes
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approved for AmUSR-905. Mr.Ogle stated 19 referral agencies reviewed this proposal, 12 provided
comments which have been addressed in the Conditions of Approval and Development Standards,
and the remaining agencies did not respond. He stated staff received two letters from surrounding
property owners expressing concern regarding noise,dust,visual impacts,loss of wildlife habitat,
as well as two letters regarding the Addendum requesting a one-month continuance. In response
to Commissioner Masden,Mr.Ogle stated Condition#2.1 was completed on March 14,2005,when
the Board approved the applicant's request to vacate Use by Special Review Permit#727 for an old
dry mining operation.
Char Davis, Department of Public Health and Environment, stated this site is for mining only,
therefore, it will not be required to have a septic system because staff is allowing the use of bottled
water and Port-A-Potties for up to six months at each mining site.
Donald Carroll, Department of Public Works,stated this site is for mining only and the material will
be transported to the AmUSR-905 site by conveyor. He stated the access on the west is from Weld
County Road 23.5,and processed material will be transported from the existing site using the haul
route on Weld County Road 6 to Highway 85, with a majority of the traffic going south towards
Denver. He stated there is an existing Improvements Agreement,there will be slurry walls around
some of the reservoirs, and he requested clarification on the amount of employees. Chair Jerke
stated he would have concerns if Weld County Road 23.5 were proposed as a haul route because
it would need to be paved; however, because the processed material will be hauled from the
neighboring site on a different route, and there will be a minimal amount of employees using the
road, he no longer has a concern.
Connie Davis,represented the applicant and stated they do not anticipate more than four Aggregate
employees at the proposed site on a regular basis; however, there may be occasions when the
mining process requires additional equipment, which may result in up to seven employees, for a
total of 14, if both shifts are counted. She explained the material will be conveyed to the
AmUSR-905 site,which is anticipated to be depleted by April. She stated they began this process
in 2001, and presented the application to the Planning Commission on October 16, 2001. She
stated issues related to the Corps of Engineers 404 Permit were a major concern based on referral
comments from the U.S. Division of Fish and Wildlife and the Environmental Protection Agency,
therefore, they requested an indefinite continuance to address those concerns. She stated they
started the preliminary work for the 404 Permit in 2000, and she reviewed the various studies
required and what assessments were involved. Ms. Davis stated they were required to do
groundwater monitoring wells that were measured weekly and completed in 2001, and they later
submitted the 404 Permit Application to the Corps of Engineers in March 2001, and she reviewed
their primary issues of concern. She stated in January 2002, it was determined the impacts were
still not acceptable,therefore,the applicant submitted a revised Conceptual Mitigation Plan showing
the phasing in of replacement wetlands. In January 2003,the Corps of Engineers determined the
latest revisions were not acceptable and they threatened to elevate approval of the permit to
Washington D.C. Following discussion with the Corp of Engineers and various agencies,the Corp
drafted a new permit with special conditions, which was sent to the Environmental Protection
Agency and U.S. Fish and Wildlife Service. She stated in an effort to address lingering concerns
from various agencies, the Corps of Engineers incorporated additional special conditions and
requested the applicant comment on the draft permit. Ms. Davis stated in February 2004,the South
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Platte River Corridor Study was completed, and in March the applicant submitted comments
concerning the draft permit. They were advised that as a result of the depletions study and the
off-site potential downstream effects to endangered species in Nebraska from depletions,a Formal
Section 7 Consultation Process was triggered with the U.S. Fish and Wildlife Services. As a result,
the applicant was required to perform a biological assessment, which was submitted to the Corp
of Engineers in the Summer of 2004. She stated a cultural survey was also required to comply with
the National Historic Preservation Act,which showed no impact. In July 2004,the Corp of Engineers
incorporated the applicant's comments into the fourth draft of the 404 Permit. Ms. Davis stated on
February 4, 2005, the Corp of Engineers finished its decision and requested the final biological
opinion from the U.S. Fish and Wildlife Service. It was ready for signatures and submittal on
February 18,2005; however,on February 17,2005 they received notification of an eagles nest on
the site. She stated they notified the Colorado Division of Wildlife and they withheld the biological
observation. Since that time have they have conducted site inspections, researched eagle
migration,nesting behavior,and recommended buffer zones around a nest. Ms. Davis stated they
re-evaluated the phasing of the mining and wetland mitigation to avoid eagle impacts. Last week
it was agreed to incorporate the revised phasing and buffer zones into the Biological Assessment,
which will be addressed in the 404 Special Permit. She stated they anticipate issuance of the 404
Special Permit within 30 to 60 days,and during that time the applicant could proceed with activities
outside the agreed buffer zone. She stated the final 404 Permit will result in a 25-percent reduction
in aggregate recovery, and a 37-percent reduction in water storage. The wetland impacts have
been reduced by 70 percent, there will be 63 acres of wetlands left in tact, and the 28.6 acres of
disturbed wetlands will be left in equal or better condition,with 6.6 additional acres of wetlands being
created. Ms. Davis reviewed the cumulative effects of mining along the South Platte River,including
the changes to stream channel, quantity, vegetation,wetlands, and wildlife habitat. She stated it
was determined that most of the impacts were created by prior agricultural uses,and this proposal
will result in minor changes and will enhance and broaden the wildlife corridor and protect the
corridor from further development. Ms. Davis stated there was also some concern regarding the
groundwater impacts. She stated Aggregate Industries installed nine monitoring wells and took
monthly measurements for three years. She stated they will continue to monitor the wells through
the life of the mine,the information has been submitted to the Division of Minerals and Geology,and
the information has been incorporated into the State Permit. She stated the Wattenberg site has
a well,and the applicant has agreed to also monitor that well,in addition to the monitoring required
by the 404 Permit. She further stated in August 2003, staff agreed to allow an addendum to the
application and encouraged the applicant to obtain written verification stating the County's concerns
were addressed. Ms. Davis stated they submitted the Addendum in December2004, addressing
the concerns of referral agencies, as well as the outstanding issues expressed by the Planning
Commission. In response to Commissioner Vaad, Bill Schenderlein,Applegate Group, indicated
the location of the eagles nest east of Phase 1, within the Lupton Slough, and south of property
owner identification Number 8. Ms. Davis indicated the location of the eagle's nest and the
one-quarter-mile buffer, which includes the western reservoir and some property on the east, as
shown on Exhibit K. She stated they will continue to monitor the nest, and there will be no
disturbance in the area between November 15th and January 31st of each year.
Mr.Schenderlein indicated the location of the site,Lupton Slough,and seepage ditch. He stated the
property is zoned Agricultural; however, it is not classified as prime because a majority of the site
is primarily wetlands. He reviewed the adjacent land uses, and stated 245 acres of the 421-acre
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property will be mined, with the remaining area consisting of setbacks, utilities, right-of-way, and
undisturbed wetlands. He stated there will be six mining cells done in three phases to keep
disturbance to a minimum during the lengthy process, reclamation will be done concurrently, and
he displayed the original 2001 extraction plan in comparison to the 2004 plan. Responding to
Commissioner Vaad, Mr.Schenderlein stated in an effort to maintain groundwater flow,two of the
cells will be backfilled to allow further flow, which is addressed in the 404 Permit. In response to
Commissioner Masden, Mr. Schenderlein stated the Town of Wattenberg has a community well,
there are monitoring wells in the area,and maintaining the slough should maintain well levels and
minimize any mounding and shadow effect. He stated if the Wattenberg well is impacted during
mining, they will be dewatering from cells that do not have slurry walls into the Lupton Slough to
recharge the area to the north. During and after mining they have discussed french drains around
the slurry walls to convey water to the down gradient sides for recharge. He stated they have not
engineered the french drains because they want to continue monitoring the wells to see if it is
needed. Mr.Schenderlein displayed a typical mining section and the reclamation plan. In response
to Chair Jerke, Mr. Schenderlein stated this site will result in 3,800 acres of water storage for the
City of Westminster. He displayed a typical cross section of the Huett Seepage Ditch and how it
will be relocated and designed. He also reviewed the 2001 reclamation plan versus the current
proposal. (Switched to Tape#2005-17.)
In response to Commissioner Vaad, Jamie Gaborian, Aggregate Industries Environmental
Specialist,deferred to Mike Savage. Mike Savage of Savage and Savage,stated when eagles are
nesting it appears they are more sensitive to people walking around and are less concerned with
vehicles or bicycles; however,the levels of tolerance are specific to individual birds and pairs. He
stated this pair does not appear to be too concerned since they located near the Wattenberg site
and in an isolated tree in a flat area. He stated the Division of Wildlife requested the applicant
restrict people within the one-quarter-mile buffer zone.
Carl Eiberger,surrounding property owner,stated he is also speaking on behalf of the Baurers who
submitted a written request for a continuance. Mr. Eiberger stated there has been a lot of
discussion with Mr. Refer regarding noise,dust,quality of living, and a fence line between the two
properties. He stated although they were hoping to have the issue resolved prior to this hearing,
they are still working with the applicant. He further stated he purchased his property in December
1994, and in response to Chair Jerke, Mr. Eiberger stated he owns 180 acres. Responding to
Commissioner Vaad, Mr.Ogle stated Mr. Eiberger's property is in the floodplain. Mr.Eiberger stated
the Corps of Engineers did construct a dike and the area to the west was flooded in 1965. He stated
they use their property for the tree farm, which was recently reclaimed since that use is ceasing.
Responding further to Chair Jerke,Mr. Eiberger stated the road conditions have improved,although
there are kids who race along the road and there is a lot of debris and trash dumped by people.
There being no further comments, Chair Jerke closed public testimony.
Mr. Refer stated Aggregate Industries has agreed to relocate the fence to the appropriate location
along the east/west property line once the tree farm is gone and no longer using the lane. He stated
they have agreed to a combination of fencing, trees and berms, and they will work with the
neighbors to complete the work rather than just paying them a flat amount. In response to
Commissioner Vaad, Mr. Refer stated the hinged fence is addressed in the County's floodway
permit process,although they prefer earthen berms. Responding to Chair Jerke, Mr. Refer stated
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he and the applicant have reviewed and concur with the Conditions of Approval and Development
Standards. Mr. Ogle requested the addition of a Condition prior to recording the plat to state,"The
plat shall be amended to delineate the location of the eagle nest, including the one-quarter-mile
buffer area. He also requested the addition of Condition#4.C to state,"Evidence of a French drain,
including text analysis,design,and engineering,submitted to the Department of Planning Services
for review and approval, prior to operation of the French drain." He also requested Condition#2.1
be deleted since it has been completed. Responding to Commissioner Vaad, Mr.Morrison stated
there is an overlap in the regulations regarding the monitoring of the eagle's nest. If not included in
the Board's Resolution,the applicant will still be required to address the matter. ChairJerke stated
the location has been identified in the record. Mr.Morrison stated future review starts with the plat,
and staff is requesting the plat show the location of the eagle nest and buffer area; they have not
proposed regulatory language. Commissioner Vaad expressed concern with including the
information on the plat,which may be interpreted as the County taking responsibility for monitoring
the matter. Mr. Refer stated the U.S. Fish and Wildlife Service intends to monitor the eagles
because it is uncertain whether they will continue using this site,and the applicant intends to respect
the one-quarter-mile radius until a determination is made. Mr. Morrison stated the applicant's
testimony indicates this could be a temporary location and it may be better to leave it off the plat.
Regarding Condition#4.C, Mr. Refer stated the applicant cannot do an accurate design until the
mining cells are in place and the monitoring wells indicate a French drain is required,at which time
they will be designed accordingly. He further stated the State Engineers Office,Division of Minerals
and Geology, and the Wattenberg Engineer have signed off on the plan to address the issue. He
stated they will submit the Drainage Plan to be added to the file if it is required. Commissioner
Masden stated that satisfies his concern. Mr.Ogle stated Condition#2.1 can be deleted since it has
been completed,and he clarified the applicant has indicated there will be seven employees on the
site at any one time doing shift work.
Commissioner Masden moved to approve the request of Aggregate Industries-WCR, Inc., for a
Site Specific Development Plan and Use by Special Review Permit#1350 for a Mineral Resource
Development Facility,including Sand and Gravel Mining,in the A(Agricultural)Zone District,based
on the recommendations of the Planning staff and the Planning Commission,with the Conditions
of Approval and Development Standards as entered into the record. His motion also included
deleting Condition of Approval #2.1. The motion was seconded by Commissioner Long , and it
carried unanimously. There being no further discussion,the hearing was completed at 12:00 p.m.
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This Certification was approved on the 21st day of March 2005.
APPROVED:
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
William H. Jerke it
1861 lerk to the Board
EXCUSED
M. J. ile, Pro-Tem
® Q
�...n•�uty Clerk to the Board CMJ� € of
Da Long
TAPE#2005-16 and #2005-17 iV0- / —
Robee 17
DOCKET#2005-20
Glenn Vaad
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EXHIBIT INVENTORY CONTROL SHEET
Case USR#1350 -AGGREGATE INDUSTRIES -WCR, INC.
Exhibit Submitted By Exhibit Description
A. Planning Staff Inventory of Items Submitted
B. Planning Commission Resolution of Recommendation
C. Planning Commission Summary of Hearing (Minutes 10/16/2001,
01/04/2005, 02/15/2005)
D. Clerk to the Board Notice of Hearing
E. Planning Staff Referral from West Adams Conservation,
received 02/23/2005
F. Planning Staff Request from Westminster to vacate
USR#737, dated 02/28/2005
G. Jonathan Baurer Letter re: property line, 03/09/2005
H. Francisco Rodriguez Transcript of telephone inquiry and
testimony, 03/11/2005
Jonathan Baurer E-mail requesting continuance, 03/14/2005
J. Planning Staff Photo go sign posting
K. Applicant Aerial Photo depicting 1/4 mile radius and
eagle's nest location
L. Applicant Connie Davis Presentation summary
M.
N.
O.
P.
Q.
R.
S.
T.
ATTENDANCE RECORD
HEARINGS ARE AS FOLLOWS ON THIS 16TH DAY OF MARCH, 2005:
DOCKET#2005-18 -AURORA ORGANIC DAIRY
DOCKET#2005-20 -AGGREGATE INDUSTRIES -WCR, INC.
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