Supervisors To Rescind December 17 Water Vote Amid Brown Act Concerns

They will then consider the issue again, take public input and finally vote on whether to determine that the agreements are exempt from CEQA (California Environmental Quality Act) and to authorize the Chair of the Board of Supervisors to execute the agreements.

Board Chair Matt Rexroad told the Vanguard that they believe they did it right, but are taking this action to be sure.

The Staff Report agrees, “This office is confident that all legal requirements—and in particular, all Brown Act requirements—were met for purposes of the actions taken on December 17. Nonetheless, to help resolve the ongoing controversy, we recommend that the Board of Supervisors take the actions described above and, in effect, consider the attached Agreement as if the December 17 hearing had never taken place.”

Supervisor Jim Provenza first raised the issue back on December 22, 2010. 

Supervisor Provenza told the Enterprise that he had received notice of the meeting at 4:52 p.m. Thursday, which the Enterprise reported was “the same time the county e-mailed The Davis Enterprise an agenda. Friday’s meeting started 20 1/2 hours later, at 1:30 p.m.”

Mr. Provenza told the Enterprise, “he’s just looking into that at this point,” because he’s not sure if a Brown Act violation occurred. According to the article, “The board met three days before the special meeting, on Tuesday, Dec. 14, and recessed that meeting until Friday.  But, Provenza said, the docket did not call the board to take a vote on Tuesday, which means carrying over the meeting doesn’t pass legal muster.”

A group calling themselves Citizens Alliance for Regional Environmental Sustainability (CARES), which is apparently a new grassroots organization formed to oppose the Tsakopoulos-County water agreements, hired local environmental attorney Don Mooney who wrote a letter alleging that “the notice for the December 17, 2010, Special Meeting violated the requirements of the Brown Act, Government Code, section 54956.”

According to Mr. Mooney, “The Brown Act mandates written notice must be sent to each member of the legislative body (unless waived in writing by that member) and to each local newspaper of general circulation, and radio or television station that has requested such notice in writing. (Gov’t Code, § 54956.) This notice must be delivered by personal delivery or any other means that ensures receipt, at least 24 hours before the time of the meeting.”

The County failed to provide the mandated 24 hours of notice to Board members or the media, the group charges, citing the December 22, 2010 article in the Davis Enterprise where Supervisor Jim Provenza charged that he had not received notice of the meeting until roughly 4:52 pm on Thursday, about 20 and a half hours prior to the meeting.

Mr. Mooney’s letter becomes key in this dispute, because County Counsel Robyn Drivon said, ” Provenza had raised an issue and absent an external prompting, which Mooney’s letter now is, there wasn’t a reason to do anything about it than simply review it.”

So now, erring on the side of caution, the board is rescinding their action and reconsidering it.

According to the staff report, “the attached Agreement creates a framework that enhances protection of the agricultural, habitat, and water resources of Conaway Ranch. It also supports meaningful County participation in matters that could affect such resources, including the Bay Delta Conservation Plan (‘BDCP’).”

They continue, “In particular, the Agreement is intended to strengthen the County’s ability to participate in developing the terms of certain conservation easements that Tri-City proposes to sell to the State of California, as well as the later formulation and environmental review of any habitat projects that may proceed within the easement areas. While the easement sales and later habitat projects are speculative and may not come about, the Agreement provides the County with a defined role in the event such activities eventually move forward.”

Furthermore, the agreement is identical to the December 17 version except for one minor change.  The first section describes two transactions. 

“The first transaction is a proposal that—if formally developed, studied, and approved by appropriate authorities—would entail the transfer of surface water to Metropolitan Water District or one or more other out-of-county purchasers,” the staff report reads, adding, “It is speculative and, importantly, its approval is entirely beyond the County’s regulatory authority.”

“The second transaction concerns surface water deliveries to the Cities of Davis and Woodland. It involves the Conaway Preservation Group (“CPG”), Reclamation District 2035, and the Woodland-Davis Clean Water Agency (“Agency”),” the staff report reads.  “The Cities extensively studied these deliveries and a range of other activities in a certified Environmental Impact Report. Those entities approved agreements concerning such deliveries in late December 2010.”

The county adds, “As with an out-of-county transfer of surface water, the County has no legal authority over the sale of surface water to the Agency and the Cities and it is not a party to related agreements between those entities.”

The second portion of the agreement relates to the proposal to sell habitat conservation easements. 

The county writes, “Tri-City would like to sell easements covering (a) up to 4,000 acres for potential conversion to seasonal floodplain habitat, and (b) up to an additional 2,000 acres for preservation of giant garter snake and Swainson’s hawk foraging habitat. The State of California is the anticipated buyer of such easements, likely in connection with ongoing efforts—primarily, the BDCP [Bay Delta Conservation Plan]—to develop a conceptual approach to seasonal floodplain habitat restoration within the Yolo Bypass.”

Supervisor Provenza and others have expressed concern with the selling of these conservation easements, arguing that the county just gave up their bargaining chip in any hopes of influencing the design of the Bay Delta Conservation plan.

“We are signing off on our most powerful tool,” Supervisor Provenza said following the December vote. “The water contractors are scared to death we have the moratorium. They don’t know what’s going to happen in court.”

But it is the process issue that is key here.  Jim Provenza argued that we must ensure that the public is aware of the issues that are being considered and is notified with enough time to give them a chance to participate.  In this case, he argues, the county failed to do so.

However, his former colleague, Helen Thompson,  disagreed with his assessment and took exception to Mr. Provenza’s criticisms calling Jim Provenza’s accusation “a crock” and saying it was “very irritating.”

“Thomson said she has never presided over an illegal meeting, and she certainly didn’t do so during the last one of her 36-year political career, which ends Friday,” the Enterprise reported.

According to the Enterprise, ” ‘Recessing from a regular meeting to a special meeting three days later complies with the Brown Act,’ Thomson said. ‘Moreover, reporters from local and regional newspapers were present at the meeting, and they knew what was going on,’ she said.”

County Counsel Robyn Drivon argued that the board had met the state’s legal standard, “I would not have allowed a meeting to go forward if I didn’t think the Brown Act had been embraced and complied with.”

The question people will be asking is whether this makes a difference.  While right now it is still a done deal with Don Saylor’s vote in favor of the agreement, replacing Helen Thomson’s vote, that is really not the point.

The complaint here is that the deal was rushed through without enough consideration or time for scrutiny.  Now, as the hearing will take place in a week and a half from now, nearly a month and a half from the initial vote, there will be ample time for adequate review of the proposal.

If Jim Provenza cannot come up with a better reason for opposing the deal, then it will pass 3-2 again with Don Saylor’s vote replacing that of Helen Thomson. 

However, at least the public and the Board of Supervisors will have had ample time to research the agreements and make their best case.  That is the way the process is supposed to work.

We are not in democracy guaranteed an outcome, only a fair process.  We will now get a fair process.  Perhaps something is amiss in the agreement, in which case the deal would be changed.

Or perhaps everything is as we thought it was, in which case, it is a matter of policy differences and the majority passes the agreement with another 3-2.  At least now we get a fair process.

Some will suggest this is a way for the county to correct an error without admitting to blame.  So be it.  At least there will be no doubt anymore that proper processes were followed.

—David M. Greenwald reporting