But if the first meeting did violate the Brown Act, this one may have as well because the Board of Supervisors really was not taking in new information and opening up a true public process, instead it was rubber stamping the results of the previous meeting.
He further argued that this was not an easement agreement and finally he argued that since this is not a project, there are no water transfers or habitat projects, therefore there is no meaningful review of concrete projects that are ready for environmental review, thus the project is exempt under CEQA.
Responding to a question from Supervisor Provenza, Mr. Pogledich also acknowledged there was no link between this agreement and the Davis-Woodland Joint Powers Water agreement.
Senator Lois Wolk came to the chambers speaking on behalf of her colleague in the Assembly, Mariko Yamada – both of them former Supervisors. She pointed out that this is the first time she came to the county with an objection and that she did not like having to do so, as she believes this is not her place.
“A week or two ago, we did try to work on the staff level to share our substantive concerns but we were told that there really was no interest in discussing the substance of our concerns, that in fact this was a formal proceeding to deal with the Brown Act issue,” she told the board.
She focused on the four to six thousand acres of easement. She said they have worked hard to strengthen the role of local land use agencies on the process. The process has been to strengthen to the point where, if cooperation does not occur or it is not given proper weight, then the county or another local agency would have cause to contest an action or even litigate if they chose to.
She said that when she first saw the agreement on December 16, 2010, “I was truly surprised that this agreement conceded a total of six thousand acres of habitat easement to the new owner to dispose of with only ‘the right to comment’ and you exempted it from the moratorium and future ordinance.”
She continued, “You were willing to do so on the promise that the developer would stand in partnership with you in gaining meaningful participation in the BDCP (Bay Delta Conservation Plan).”
“As I read the agreement and I read it that night, I think the partnership language remains weak,” she said.
“I was further surprised to see in the agreement the further concession that would require most of the land to be restored to seasonal flood plain habitat. In doing so, the county is essentially conceding to an elimination of agriculture in that area and conceding to actions that will fundamentally change the way the Yolo Basin Wildlife Area 16,000 acres has been operated.”
Senator Wolk would present five ways by which the county could strengthen their hand and the agreement. The Board did not even mention any of these during their discussion.
Former Supervisor Helen Thomson, who had been one of the principles who made the arrangement, clearly disagreed with her successor to the state legislature and her ally. She argued that this agreement was a balance of issues.
Overall she sees it as supportive of agriculture as it caps the transfer of water to 80,000 acre/ feet until 2034. Along the same lines, it supports keeping water in the county and protects ground water.
She argued that this was not a hastily reached agreement, that she spent a great deal of time on this in subcommittee, and that she along with Supervisor Mike McGowan had spent a lot of time bringing this to the board itself, discussing what happened in the subcommittee meetings and then getting direction from the board. She believes that that direction shaped the agreement, not just the subcommittee.
She thinks this is a management plan for the resources of the ranch and public access. Former Supervisor Thomson sees this as only an open door, not the final answer on what happens with Conaway Ranch.
The environmental community is divided on this issue. The Yolo Basin Foundation, for instance, expressed concerns about setting aside the area without considering long term impacts on wildlife area and also the downstream impacts must be understood first.
On the other hand, Bob Schneider, from the non-profit organization Tuleyome, has been consistently supportive of this agreement which Tuleyome argues would result in, “A reduction in the unsustainable mining of groundwater resources that originated in Pleistocene rainfall, and a shift from dependence on local wells that experience ever-increasing water-quality and health concerns to a surface-water supply that will help the cities comply with ever-more restrictive water-quality objectives for-effluent-disposal-to the-Sacramento River-and the Delta.”
Furthermore, they argue that the county benefits from “Water rights with early priority dates that secure our citizens’ water supply even as demands on the Sacramento River increase.”
Finally, they argue that the county gains “commitments from the Conaway Ranch landowners about farming and habitat restoration or enhancement that can serve as a beginning to resolving questions about the conservation use of the Yolo Bypass.”
“Statements about the BDCP over the past half-year by various Yolo County officials have focused almost entirely on protecting existing land uses and related benefits to local governments,” they continue. “As conservationists, however, we find among the Delta issues many opportunities for restoring historical ecological conditions and beneficial uses of the public’s waters that are exciting and worthy of serious consideration.”
“The Conaway agreements include commitments by all parties to maintaining agricultural uses of the Conaway lands, as well as to substantial habitat restoration within Ranch lands (the details of any restoration are not established in the agreements). Commitments to study other conservation options are included, as well. We believe that these commitments are a positive step toward a recognition that the Yolo County lands will inevitably contribute to the BDCP and other issues of statewide conservation concern,” they conclude.
Supervisors Duane Chamberlain and Jim Provenza, who voted against the first agreement, remained steadfast against it this time as well.
Jim Provenza presented a PowerPoint in which he illustrated a Board Letter to the California Natural Resources Agency.
He argued that flood protection afforded by the Yolo Bypass must be maintained.
“The County cannot accept changes in the Yolo Bypass that increase the level of flood risk to local properties,” Supervisor Provenza quoted from the letter. “The design and operation of the Conservation Measure must not have an adverse effect on the flood protection function of the Bypass.”
Also, agriculture in the Yolo Bypass must be preserved. Mr. Provenza argued that the rice alone generates $50 million in production to the economy.
“Agricultural activities in the Bypass are a significant contributor to the County’s agricultural economy, the operation of the Yolo Bypass Wildlife Area, and the flood protection afforded by the Bypass,” he quoted. “The Conservation Measure must include appropriate design and operational criteria to avoid jeopardizing agriculture – particularly the cultivation of rice – in the Yolo Bypass.”
Moreover the Wildlife area must be protected.
“The habitat, recreational, and educational opportunities afforded by the Wildlife Area make it an invaluable asset to Yolo County and the surrounding region,” Supervisor Provenza quoted from the letter. “The Conservation Measure should not jeopardize the Wildlife Area and, if possible, it should be enhanced and preserved in perpetuity as part of the Bay Delta Conservation Plan (‘BDCP’).”
Furthermore, “All appropriate steps must be taken to identify and fully mitigate local economic impacts of the Conservation Measure, including but not limited to, its effects on County revenues and the agricultural industry.”
Supervisor Duane Chamberlain also noted that the county was essentially abandoning this land as an agricultural area, and along those lines warned that the county risked losing tax revenue.
Supervisor Chamberlain warned that plans for construction would interfere with the bypass’s main function, which is flood control capacity, and cause the water to back up into the Sacramento River, actually causing serious flooding.
“When you slow that water down,” he warned, “it piles up and floods. That’s one of the problems I saw immediately in this, you are putting a plug in the bypass.”
“The Yolo bypass is designed mainly for one thing, flood control, that’s got to be the number one priority,” he added. “If you leave in rice like it is, the water flows, it’s great habitat the way it is.”
“There is no surplus water in the summer if you’re going to farm Conaway Ranch,” Supervisor Chamberlain said and added, “That’s another thing that bothers me is [sic] that you’re selling out Conaway Ranch.”
He argued by taking three or four acres of rice out that will cost the county three or four million dollars a year.
“You’re talking about we’re going to get a couple of million dollars strung out over a couple of years, that’s nothing,” he added. “This is one of the worst agreements I have ever seen the county get involved in.”
Supervisor Jim Provenza said about this agreement, “On balance I don’t see us getting much, where it does, the language is very weak.”
He added, “What we give up here is land use authority that we are exercising against anybody else. Everyone else has to bring forward a project first, we are sitting here blindfolded not knowing what’s coming before us, saying go ahead, do what you want, we waive our rights.”
He called it a “capitulation” and added “it weakens us and sets a bad precedent for rolling over when somebody with a lot of money wants to do a project.”
I want to offer a few brief comments.
First, I am stunned, and this time sincerely, that Senator Wolk, who really is the expert in our region on the issue of water and the delta, was just completely rebuffed and ignored by her former colleagues and allies.
Second, if there was a Brown Act violation before, the language of Supervisor Matt Rexroad in the newspaper and the statement that Lois Wolk gave about this being about the Brown Act rather than substance might put the county back into a violation of the Brown Act. If they saw this as an opportunity to simply rubber stamp the agreement that came out of the previous meeting, then it drifts perilously close to a very insincere and closed process.
Under the Brown Act, the idea of open process restricts governmental bodies from predetermining the outcome. It’s a tough case to make legally, but there may be enough here in this case to at least pursue.
Third, there was an interesting exchange between Jim Provenza and Don Saylor. Jim Provenza asked some questions of Chad Roberts on habitat. While he was doing so, Supervisor Saylor interrupted by suggesting this was inappropriate.
In fact, the Board of Supervisors frequently asks questions of members of the public, particularly when they have expertise. Indeed, the council which Don Saylor was on previously at times does this, as well.
Supervisor Rexroad ruled that Mr. Provenza was in bounds and he proceeded. This is an interesting sign that business for Don Saylor in his new home will be a bit different from his days on the council when he could count on the majority to back him whenever he chose to flex his muscles.
Overall, this is a disappointing agreement. I agree with Jim Provenza, the county did not get that much. I understand the county feels it did not give away that much either, but it seems the signing off on the agreement had some meaning and they could have at least followed Senator Wolk’s rather modest recommendations.
—David M. Greenwald reporting