The Planning Commission held a public hearing on December 14, 2017, heard public testimony, extensively debated the issues related to the application, and approved the Use Permit by a 5-1-0-1 vote (5 Aye, 1 No, 0 abstain, 1 absent). On December 20, 2017, the Yocha Dehe Wintun Nation (the Tribe) filed a timely appeal of the decision to the Board of Supervisors (see Attachment A).
As per County Code Section 8-2.225, a timely filing of a notice of appeal nullifies the decision of the Planning Commission, whose decision shall serve as a recommendation to the Board.
Staff has carefully reviewed the issues raised in the appeal and has determined that the legal issues identified in the appeal do not warrant denial of the permit. Almost all of the issues that the Tribe has raised in their appeal letter were also addressed in a previous November 29, 2017 letter to the Planning Commission (Attachment E). The Commission discussed all of these issues and voted to approve the Use Permit. As a policy matter, staff recommends that the Board adopt the Planning Commission's decision to approve the project.
BACKGROUND
For a thorough project description and project discussion, see the environmental review document (Initial Study/Negative Declaration, Attachment G) and the October 12, 2017 Planning Commission staff report (Attachment F).
The project is a request for a Use Permit to construct three 60-meter (197 feet) tall temporary meteorological wind towers (“met towers”). The applicant is Terra-Gen Development Company, LLC, a subsidiary of Terra-Gen, a renewable energy company.
The three proposed met towers will collect wind speed data that can be used with other regional data to characterize the long-term wind resource in the area. The data collected will be used to assess the economic viability of a future utility scale wind energy generation project. The towers are temporary and would be decommissioned and removed from the project sites within three years from the date of approval, unless the Use Permit is extended.
Each met tower would be a 60-Meter XHD NRG TalltowersTM with 3-foot by 3-foot base plates, and 24 guy wires. Guy wires, with industry-recognized bird deterring reflectors, would extend up to 30 meters from the base of the Met towers at 90-degree angles and be oriented to create an “X” pattern when viewed from overhead. Each guy wire will be attached to a temporary anchor that meets the design standards of the met tower manufacturer, based on the underlying soil conditions.
Cup anemometers and wind direction vanes would be attached to the met tower at various heights to measure wind speed and direction. Each of the met towers will be powered by a small solar cell, and battery. The met towers will be unmanned, and aside from the tower and affixed apparatuses, no other equipment is proposed.
The three proposed met towers will be located in the Capay Hills, east of State Route 16 and west of County Road 85, within an approximately 10 mile-long area (see Attachment B).
Tower #1 is sited at approximately the 1,457-foot elevation in the southeast portion of a 390-acre parcel (APN: 061-150-002, owned by the Hammerness family) that is zoned Agricultural Extensive (A-X). The site is accessed via County Road 15B from the east and unnamed dirt roads. The site is approximately three miles northeast of Brooks.
Tower #2 is proposed at approximately the 1,774-foot elevation in the western portion of a 157-acre parcel (APN: 059-180-007, owned by Hayes Trust, Findley & Hickey) that is zoned Agricultural Extensive (A-X). The site is accessed via County Road 57 near Guinda from the east and unnamed dirt roads. The site is approximately two and one-half miles east of Guinda.
Tower #3 is at approximately the 1,778-foot elevation in the southeast portion of a 310-acre parcel (APN: 059-090-009, owned by Bremer) that is zoned Agricultural Extensive (A-X). The site is accessed via County Road 57 near Guinda from the east and unnamed dirt roads. The site is approximately three miles east of Rumsey.
ANALYSIS
Consistency with General Plan Policies and Zoning Regulations
The proposed project is consistent with policies in the Yolo County 2030 Countywide General Plan and Climate Action Plan that encourage expanded capacity and reliance on renewable energy resources in order to promote greenhouse gas emission reductions and reduce the potentially adverse effects of climate change. Though the met towers themselves are not a renewable energy source, the project is necessary to determine the feasibility of installing a large scale renewable energy (wind) project.
Under Yolo County Code Section 8-2.1103, met towers are allowed in any of the zone districts where commercial wind turbines are permitted, provided a Use Permit is first obtained. Yolo County Code Section 8-2.1103(c) applies specific development standards to proposed wind energy systems. Many of the specific development standards contained in Section 8-2.1103 are not applied to applications for met towers, since many of the standards are only relevant to wind turbines, not met towers. The application and conditions of approval for the three met towers meet all of the relevant zoning regulations and development standards for wind energy systems (see detailed discussion in Findings, Attachment D).
Public Review
The Initial Study/Mitigated Negative Declaration was circulated for public review from October 27, 2017 to November 29, 2017. As of the date of the Planning Commission hearing (December 14, 2017) a total of eleven comments have been received (included in Attachment F). The Capay Valley Citizens Advisory Committee discussed the application at their meeting on December 6, 2017.
The Yocha Dehe Wintun Nation (the Tribe) requested a formal consultation on the project as set forth under State law. The consultation with County planning staff, the applicant and members of his consultant team, and the Tribe’s cultural resources staff occurred on November 15, 2017.
Responses to Yocha Dehe Appeal Letter of December 19, 2017
The Tribe filed a timely appeal (Att. A). The appeal raises the following specific issues, each of which has been responded to by staff.
Comment from Yocha Dehe Appeal:
1. Scope of Project and Relationship to Future Projects.
First and perhaps most fundamentally, the Tribe opposes the construction of the towers without the kind of comprehensive environmental review that CEQA requires. There is little doubt that the manner by which the Commission has now voted to proceed- by granting a construction permit for the three meteorological data towers without a fuller environmental review of an admittedly related future wind energy project - violates basic principles of California environmental law. While the Initial Study/Mitigated Negative Declaration states the data towers are temporary, to be removed within three to four years, there is no question that these towers are related to a larger wind energy project that is not only reasonably foreseeable, but explicitly anticipated…
Despite CEQA' s clear direction, the IS/MND fails to address the full environmental impact of utility-scale wind energy development. Among other things, it ignores the potential consequences of siting utility-scale energy projects in this scenic, environmentally-sensitive area of Yolo County; the potential consequences of creating the infrastructure (roads, switching stations, etc.) necessary for energy development; and the potential consequences of the Colusa-Sutter Transmission Line Project, construction of which would presumably be required in connection with full build-out.
These omissions are not cured by the County's willingness to conduct additional environmental review at some point in the future. The IS/MND provides no reason to believe that many – if not most - of the impacts of utility-scale energy development cannot be evaluated today. At minimum, the County should provide a programmatic analysis of the impacts of opening the Project area to development so that stakeholders can have reasonable notice and a meaningful opportunity to comment and be heard, before the development process proceeds.
Staff response:
Staff disagrees that the “the manner by which the Commission has now voted to proceed- by granting a construction permit for the three meteorological data towers without a fuller environmental review of an admittedly related future wind energy project - violates basic principles of California environmental law.” The appellants claim that “Despite CEQA' s clear direction, the IS/MND fails to address the full environmental impact of utility-scale wind energy development” is not supported by court decisions clarifying the California Environmental Quality Act (CEQA).
The “Project Description” discussion of the Initial Study/Mitigated Negative Declaration (IS/MND) on page 7 clearly describes the relationship of the application to construct three met towers with any future project to construct a utility-scale wind energy project:
Following analysis of data from the Met towers, an application for a Use Permit for a large utility-scale wind project could be submitted by Terra-Gen to the Yolo County Community Services Department. If and when an application for a future project is deemed “complete” by Planning and Public Works Department, the County will initiate a separate CEQA analysis for that project, which will probably require a full Environmental Impact Report.
Neither the adoption of this IS/ND nor any approval of the project studied herein represents a commitment by the County or the applicant to later carry out or approve a future wind energy project, the viability of which is dependent upon (among other things) the nature of the data that will be generated by the Met towers studied herein. In no way does approval of the current testing project authorize or entitle the applicants to proceed with any future project. Nor does this IS/ND, its potential adoption, or the approval of the Met towers project foreclose alternatives, including the “no project” alternative where applicable, or mitigation measures that would be part of the CEQA review of any such wind energy project.
For all of these reasons, environmental review of a future wind energy project that might later follow the Met towers project—depending on various factors—is premature and not required by CEQA.
No provisions of the CEQA statutes or Guidelines require a lead agency to analyze unknown impacts of a potential future project when the most basic details of the potential project are uncertain or not reasonably foreseeable. See Berkeley Keep Jets Over the Bay Comm. v. Bd. of Port Comms., 91 Cal. App. 4th 1344, 1362 (2001); see also Kostka & Zischke, Practice Under the California Environmental Quality Act § 12.10 (2016) (“[U]ncertain future activities not currently proposed for approval and that are not reasonably foreseeable consequences of the project that is proposed for approval need not be included in the description of analyzed….”). An EIR is not required for a project that "is merely contemplated or a gleam in a planner's eye." Laurel Heights Improvement Assn. v. Regents of Univ. of California, 47 Cal. 3d 376, 398 (1988).
Approval of the project for exploratory purposes does not authorize additional expansion, and the applicant for the three met towers has not submitted an application for any wind energy project in Yolo County. It is not possible, feasible, or legally required to conduct an environmental analysis of the potential impacts associated with a future wind energy project when it is not known whether such a project will take place and the locations of the individual turbines are not known. Such analysis would be highly speculative. Indeed, past experience with met towers in the County, such as in the Dunnigan Hills, has shown that some such towers do not result in any further development.
2. Environmental Concerns
Comment:
A. Avian impacts.
The Project poses the potential for significant harm to wildlife, and birds in particular. While the Tribe is pleased the towers would include guy wires with bird-deterring reflectors, there is no explanation as to how these reflectors will deter and mitigate bird strikes. The Initial Study also fails to address the relationship between the purported deterrence created by the reflectors and the loss of important habitat. If, for example, the reflectors are truly effective in deterring birds, then important foraging and nesting habitat will be lost to species such as Swainson' s Hawk and Golden Eagle. The County staff report, presented to the Commission on December 14th, dismissed the risk of lost habitat to the fact that the towers will involve relatively "minimal ground disturbance." But the extent of ground disturbance is irrelevant to the lost habitat if the birds are to be deterred by the reflectors, as staff has found. In effect, the County staff report fails to address the omission raised by the Tribe, and then presents a disconnected, result-driven analysis. This is no small issue: (i) the species impacted (including, without limitation, Bank Swallow, Swainson's Hawk, Golden Eagle, and Burrowing Owl) are among the most sensitive and protected in the County and (ii) in additional to their biological sensitivity, they have significant cultural importance to the Tribe.
Staff response:
Bird flight diverters (BFDs) have been widely proposed, adopted, and deployed as a means to avoid or reduce avian collisions with guy wires, transmission and distribution lines, and other anthropogenic structures. They are based on the central idea that by increasing the visibility of the structure supporting the BFD, collisions with that structure will be reduced.
The applicant has submitted two technical reports into the record that address this issue: Avian Power Line Interaction Committee (APLIC), Reducing Avian Collisions with Power Lines: The State of the Art in 2012, 2012.; and California Energy Commission, Testing the Effectiveness of an Avian Flight Diverter for Reducing Avian Collisions with Distribution Power Lines in the Sacramento Valley, California, 2008. The lengthy reports may be accessed at http://www.yolocounty.org/community-services/planning-public-works/planning-division/current-projects.
As cited by the APLIC report, birds can exhibit avoidance of power lines, provided that they can see them early enough. Experimental data are not uniform across BFD type or material, but generally reductions in collisions can be expected. Biologists for the applicant disagree that deploying BFDs can or will cause a reduction in availability of various habitats. Conversely, numerous studies and field observation confirm the use of transmission structures – including wires themselves – as roosts and hunting perches, allowing raptors including Swainson’s hawks and golden eagles to make use of adjacent high-value foraging habitat.
Comment:
B. Fire Hazard.
The IS/MND assumes that the temporary towers will not pose a significant risk of wildfire dangers. As you know, this area is at a great risk of wildfire. At minimum, the IS/MND should require effective measures to minimize the risk of wildfire.
Staff response.
Staff agrees with the concerns about fire risks. A Condition of Approval for the project includes the following requirements, adapted from Section 8-2.1102(i)(11), which are conditions required of large wind energy systems:
Service vehicles assigned to regular maintenance or construction at the met tower sites shall be equipped with a portable fire extinguisher of a 4A40 BC rating, and all motor driven equipment shall be equipped with approved spark arrestors.
Comment:
C. Biological Resources.
The Project area contains a substantial number of sensitive biological resources. Towers 1 and 2 are located less than a quarter of a mile from California Tiger Salamander breeding habitat; Burrowing Owls have been observed at the site of Tower 2; and protective raptor species may use all three tower sites for foraging. The IS/MND fails to adequately address these issues. The document contains no specific analysis or mitigation addressing overland access routes. Mitigation Measure Bio-1 does not provide any specific buffer zones for species that may be affected, even for species (such as Burrowing Owl) which are known to exist at the Project sites.
Staff response:
Staff does not agree that the IS/MND “fails to adequately address” issues related to California Tiger Salamander breeding habitat, Burrowing Owls, overland access routes, and specific buffer zones for species that may be affected.
Regarding potential impacts to California Tiger Salamander (CTS), the biological study summarized on pages 28 to 37 in the IS/MND concludes:
Each proposed Met Tower location is within one or more stock ponds within 0.25 miles. During certain times of year and during rainy/wet conditions, CTS may be found travelling to and from their upland and breeding habitat and have the potential to be crushed by vehicles. During ground disturbing work, CTS have the potential to be impacted while in their underground burrows.
Assuming CTS is present within the stock ponds, a qualified biological monitor should be present during work in potential upland/aestivation areas during work including any ground disturbing work.
Mitigation Measure BIO-4 requires that “Each Met Tower site shall be monitored to ensure that the placement of the Met Tower and its guy wires avoids any existing small mammal burrows in order to avoid impacts to CTS. At each proposed Met Tower Site, a qualified biological monitor shall be present during installation and no ground disturbance shall take place where small mammal burrows occur including areas directly adjacent to small mammal burrows.”
Regarding buffers and potential impacts to “special status bird species, nesting raptors, and other migratory birds protected under the MBTA,” which includes Burrowing Owls, Mitigation Measure BIO-1 requires that a pre-construction nesting bird survey be conducted if installation is to occur during nesting season (approximately February 15 through August 31).
Furthermore, if surveys indicate that migratory bird nests are found in any areas that would be directly affected by construction activities, a no-disturbance buffer shall be established around the site to avoid disturbance or destruction of the nest site until after the breeding season or after a wildlife biologist determines that the young have fledged (typically late June to mid-July). The extent of the buffer will be determined by a qualified wildlife biologist, and the input of CDFW and/or USFWS will depend on the status of the species, the noise or construction disturbance, line of sight between the nest and the disturbance, ambient levels of noise and other disturbances, and other topographical or artificial barriers. These factors should be analyzed to make an appropriate decision on buffer distances.
Regarding potential impacts related to overland access routes, the analysis notes the following on page 33: ”Access to each site during construction will be on established roads; however, the final approach to each of the Met Tower sites will be through upland annual grassland. Non-native annual grasslands would be trampled during the installation process; however, these temporary impacts would not result in the loss or reduction of function of this community. Therefore, impacts on non-native annual grasslands would be less than significant.”
Comment:
D. Cultural Resources.
In addition to the above, the towers present serious impacts to irreplaceable and sacred cultural resources that Yocha Dehe is duty-bound to protect. If approved, one of the three towers will be sited directly next to the Tribe's original village of Yochadihi. The Initial Study identified a significant cultural resource at one site, and there is reason to believe additional resources will be found at the other tower sites, staging areas and overland routes. Notably, when bedrock mortar is located near an area, this area was a village. The area is also rich with blue oaks, which provided sustenance to the Native people who lived there. This supports the high likelihood of finding more cultural resources. All of the areas to be impacted must be precisely specified and fully evaluated before moving forward. The Tribe and County have engaged in consultation to protect cultural resources, and that consultation is ongoing. But the siting of the towers remains seriously problematic from a cultural resource perspective.
Staff response:
A thorough cultural resources survey was conducted of the three sites (Stantec, 2017) which was summarized in the IS/MND. The full report has been posted on the County Web site since October 27, 2017. The IS/MND describes the resource that was discovered at the second site and includes the following recommendation, which has been included as a project Condition of Approval:
A single bedrock milling feature, a shallow cup mortar, was identified in the area of MET Tower Location 2, along the north-south access road in the southwestern quadrant of the work area. This feature has been recorded and reported using the appropriate Department of Parks and Recreation (DPR) forms. No associated artifacts, cultural deposits, or changes in soil color or texture that may indicate buried cultural deposits have been identified in the vicinity of this feature. However, surface visibility across the site was generally low…
It is recommended a qualified archaeologist flag site KF-S-1, and the area shall be avoided by all construction work and staging equipment.
This discovery and proposed further on-site investigations were discussed at the formal consultation between the Tribe, the County, and the applicant held on November 15, 2018.
Comment:
3. Siting and Development Standards
The concerns identified above are not abstract. Relevant County ordinances (including Yolo County Code section 8-2.1103(c)) memorialize a policy of preventing meteorological towers and large wind projects from being sited on property that (a) is subject to Williamson Act restrictions; (b) contains historic or cultural sites; or (c) is visible from within a scenic corridor. The proposed Project area appears to meet all three criteria. All phases of the Project are therefore contrary to established County policy. Consistent with that policy, we urge you to reconsider your Notice of Availability and Notice of Intent and request that you deny the proposed use permit for the Project.
Staff response:
Staff disagrees that the three proposed met towers are “contrary to established County policy.” The provisions of the County Code do not support the propositions for which they are cited, or are taken out of context.
Yolo County Code Section 8-2.1103(c) applies specific development standards to proposed wind energy systems. The section also contains a few regulations that apply to met towers. Many of the specific development standards contained in Section 8-2.1103 are not applied to applications for met towers, since many of the standards are only relevant to wind turbines, not met towers.
Section 8-2.1103(c)(2) states that “Small and large wind energy systems, and meteorological towers, may not be allowed or permitted in locations…where otherwise prohibited by any of the following:
(i) Sites listed in the National Register of Historic Places or the California Register of Historical Resources pursuant to Section 5024.1 of the Public Resources Code…
(v) The terms of a contract entered into pursuant to the Williamson Act, Chapter 7 (commencing with Section 51200) of Division 1 of Title 5 of the Government Code.
Section 8-2.1103(c)(2)(v) prohibits the location of met towers on properties under Williamson Act contract where the terms of the contract explicitly prohibit met towers or wind energy systems. The three properties where the met towers are proposed are under contract, however the terms of the contracts do not preclude construction wind energy projects such as of met towers or wind turbines. Accordingly, a use permit is authorized if the Planning Commission finds that the proposed use is compatible under Government Code 51238.1.
Additionally, none of the three locations proposed for the met towers are listed on either the National Register of Historic Places or the California Register of Historical Resources.
Finally, Section 8-2.1103(h)(12) does contain the following requirement:
Wind energy systems shall not be located where they would substantially obstruct views of adjacent property owners and shall be placed or constructed below any major ridgeline visible from any designated scenic corridor listed by the state or in the Open Space Element of the Countywide General Plan, unless they are designed to blend in with the surrounding environment in such a manner that they would not have a significant visual impact, as determined by the Zoning Administrator or Planning Commission.
Met towers are not technically wind energy systems. However, the parcels proposed for the three met towers meet the above development standards. The sites are located near the flat ridgeline of the Capay Hills but are not located on any major ridgeline visible from any designated scenic corridor. State Route 16 through the Capay Valley is a designated scenic corridor.
Comment:
D. Dismissive, Result-Driven Responsive Document
The Tribe is also concerned about the approach in the County staff report to address the Tribe's comments, revealing a disturbing commitment to a particular outcome, one favoring the applicant. As an example, there can be no doubt that the construction of metal towers on the Capay Valley hilltops will bring blight to hillside vistas. County staff minimized this concern in its report, stating the towers "could be visible" from various vantage points within the Valley. But the effect on the hillside view shed is not a mere potential - it is a certainty. To be sure, towers built on the flat ridge top of the Capay Hills, at elevations of 1,457 to 1,778 feet, absolutely would be visible to persons in the valley below. In their report, County staff disregards these concerns as merely subjective -but in this case, beauty is not in the eye of the beholder. By any measure, the existence of metal towers on Capay Valley hilltops will mar stunningly magnificent hillside vistas.
Staff response:
As noted in the Planning Commission staff report (Attachment F), staff recognizes that aesthetic perceptions are subjective and the aesthetic impacts associated with the project may be perceived differently by various individuals. The environmental analysis in the IS/MND determined that none of the three met towers would have a significant effect on a scenic vista.
The three proposed towers are located within an approximately 10-mile stretch of the Capay Hills area, east of the unincorporated small towns of Rumsey, Guinda, and Brooks. The three towers are located at elevations ranging from 1,457 to 1,778 feet along the relatively flat top ridge of the Capay Hills in sparsely populated areas. The closest rural residences to each of the three tower sites are located at least two to three miles away. The rolling hills in the vicinity of each tower provide some screening potential of the individual towers. However, the proposed towers could be visible from various agricultural and open space vantage points, as well by passing motorists on portions of State Highway 16, and on some county roads. The met towers, however, are extremely slender in appearance (Attachment B) and would not constitute a significant visual impact on any scenic vista.
Comment:
E. Insufficient Public Process and Involvement.
Finally, the Tribe is concerned with the lack of real public participation in the process. We understand County staff had all of one, unofficial meeting with members of a local citizens committee about this Project. While the committee apparently lacked a quorum to take action, this committee does not represent the stakeholders throughout the Valley in any event. A project of this magnitude - one that will hurt wildlife, bring blight to a beautiful valley, create risks of fire, and damage cultural resources - deserves more than a single meeting with a single group of people. We have to ask why there is this rush to judgment, on a project of this magnitude.
Staff response:
The public participation process for this Use Permit application is the same process that is employed by County staff for all similar applications. The Notice of Intent and the Initial Study/Mitigated Negative Declaration was completed and was sent out by e-mail to a large number of organizations and interested individuals, including the Tribe, on around October 27, 2017. The IS/MND has been posted on the Yolo County Planning Division Web page since that date. The IS/MND was sent to the State Clearinghouse for review and comment by State agencies. The IS/MND was subject to a 30-day public review period that ended on November 29, 2017, although comments on the document and the project were accepted up until the approval by the Planning Commission on December 14, 2017, as is the usual County practice.
On November 27, 2017, a notice was sent out by e-mail to the organizations and interested individuals that previously received the IS/MND notifying them of the upcoming hearing at the Planning Commission as well as the meeting at the Capay Valley Citizens Advisory Committee. The notice was also mailed to all neighboring property owners, as required by State law.
The Capay Valley committee met on December 6, 2017 to discuss the project and consider a recommendation to the Planning Commission. The applicant and County staff attended that meeting, along with approximately 20 other individuals. Unfortunately, there was not a quorum of committee members, so no formal recommendation was made to the Commission, although two individual members sent e-mails expressing their view of the project (Attachment E).
Regarding the criticism that the Capay Valley Citizens Advisory Committee “does not represent the stakeholders throughout the Valley,” the advisory committee members are appointed by the supervisor representing the district, upon receiving applications from interested residents. Anyone is free to apply for a membership on the committee at any time. |