Initial plan approved, now the work begins to finalize the details
It’s been more than a decade since discussions began about what would happen to wastewater if the Lytton Tribe were to have their lands west of town put into federal trust. At its May 20 meeting, the Windsor Town Council voted unanimously to move forward to the next step, creating an agreement to have the wastewater treated in the town’s facility.
The issue has always been contentious, and while some of that spilled over into this meeting, the public sentiment this time flowed in favor of the plan.
The basic issue, as mentioned multiple times throughout the presentation and discussion, is that since the Lyttons are a sovereign nation, the town has virtually no say in what occurs on their land. Therefore, if the town and tribes cannot come to an agreement, the tribe is within their rights to construct their own facility at a location of their choosing, which was reported as immediately adjacent to the backside of the Deer Creek neighborhood.
The history of the project
The conversation started with a presentation from town manager Ken MacNab, on the history of the relationship between the town and the tribe, some details of the plan, including the financial outcomes, and what next steps would be.
According to MacNab’s report, on December 20, 2019 U.S. Senate Bill S.1790 was signed into law by President Donald J. Trump, taking 511 acres of land located west of the town into trust as part of the reservation of the Lytton Rancheria of California. One of the big concessions in the trust agreement is that it prohibits gaming on any tribe lands in Sonoma County, in perpetuity.
Following that bill passage, the tribe now has the sovereign right to use and develop the land taken into trust at its sole discretion, meaning “the town has no legal authority to exercise jurisdiction over, deliberate on, approve, disapprove or otherwise exercise judgment regarding the trust lands.”
MacNab said that in late January, the tribe initiated discussions about the possibility of allowing connection to the town’s wastewater system. Those discussions were held in consultation with the town manager, town attorney, public works and community development staff.
Water treatment options
The agreement being offered is for the approximately 177 acres of land will be developed with residential, community and government uses (35% of trust lands). The project will be constructed in two phases. Phase I is currently under construction and consists of 147 residential units, an 18,809 square foot community center, a 2,500 square foot roundhouse and a 2,707 square foot retreat house.
Phase II, which has no dates yet, includes 214 residential units and 60,000 square feet of community and government buildings. Even though portions of this phase fall within the town’s urban growth boundary, the town will still have no jurisdiction over it.
A final environmental assessment (EA) prepared in accordance with the requirements of the National Environmental Policy Act (NEPA), was released in May 2011. It includes an analysis of on-site and off-site wastewater treatment options for tribe lands.
The on-site option involves construction of wastewater treatment and disposal systems on their land. The tribe has indicated the wastewater treatment facility would be constructed north of Windsor River Road and west of the residential neighborhoods between Starr Road and the edge of town. The off-site option involves connection to the town’s wastewater system.
The concerns about the on-site facility delineated in the EA included “potential adverse impacts on drinking water quality resulting from the discharge into a drainage that ultimately flows to the gravel pits that are adjacent to the town’s Russian River Well Field. There are also concerns about impacts on the Mark West Creek/Laguna De Santa Rosa watershed resulting from the discharge into an unnamed tributary located along the eastern boundary of the project site, which flows into Windsor Creek south of the project site that connects to Mark West Creek and ultimately the Russian River.”
Other potential benefits include “avoiding potentially objectionable odors resulting from the treatment, storage and/or disposal of wastewater that could impact residential neighborhoods within town limits with prevailing westerly winds blowing odors across the town, avoiding spray of treated effluent in close proximity to residential neighborhoods and ensuring opportunities for beneficial re-use of treated wastewater, something the town currently does with its wastewater.
An analysis of the conditions and capacity of the existing wastewater system was conducted and it was determined that the town’s wastewater treatment plant has adequate capacity to serve anticipated near-term development in town plus Phase I of development on tribal lands. However, several improvements to the existing aeration basin system will be needed to provide adequate capacity for development of Phase II.
Those improvements are provided for in a $20 million “connection fee” to be paid by tribe to the town. The actually cost for these improvements is slated to cost $3.5 million, and the town will be free to utilize the remainder for a civic project of their choosing, such as a pool or recreation center. The costs of connecting each structure and the pipe work and infrastructure within the tribal lands will be paid for by the tribe separately.
This however, is far from the final step. This vote is to approve and agree to move to the next step, which is a drafting of Joint Exercise of Powers agreement (JEPA). The JEPA will outline the technical nuts and bolts of wastewater service to the tribe, including capacity of wastewater service to be provided; standards for construction of wastewater infrastructure, inspection, operation, and maintenance of wastewater infrastructure; use and access to reclaimed water; ownership of and access to wastewater infrastructure; wastewater service charges; and administrative provisions.
According the current agreement, the $20 million connection fee is contingent on reaching mutually agreeable terms and ultimate execution of JEPA.
“It is staff’s position that this is a great deal for the town, it is the environmentally superior option, and it avoids a sewer treatment plant on edge of town. We do not see a downside,” MacNab said.
Previous conversations about this issue have featured invective language against the tribe, characterized throughout the meeting with phrases like “quite offensive,” “embarrassing,” “hurtful” and “nasty.”
This time around, the arguments against the issue focused around a perceived lack of transparency from the council and concerns over the legality of the action and whether it needed to be approved by a vote of the people. Out of 11 public comments, four were against the council approving this agreement.
This issue of the need for a “vote of the people” to extend services beyond the town UGB proved to be the most contentious and complicated portion of the evening. MacNab tried to head things off by explaining that the circumstances had changed in such a way as to make such a vote no longer necessary, putting the decision directly in the lap of the council.
The Policy LU-7.10 in the Land Use and Community Design Element of the Town of Windsor 2040 General Plan provides the authority for the town council to approve the extension of town services outside the UGB, subject to specific findings.
It’s those specific findings that are the crux of the issue, and the town staff’s position is that “the required findings for approval to extend services outside UGB can be met in this instance.”
“I’m for the tribe, but I think I have issue with the process with this council. For five years you’ve been assuring people that this requires a vote of the people. Now with three days notice, you want to vote to approve this,” said Betsy Mallace, voicing the common opinion among the naysayers.
“The town’s position in the past is that the extension of services requires a vote, but the position of the town is changing. We’ve spent a lot of time talking to town attorneys (past and present) discussing what happened 20 years ago,” said MacNab. “The idea of a vote came as a result of discussions 10 years ago plus. There was a lot of concern then that gaming would be allowed or proposed on the site, and as a result town began contemplating altering the UGB for protection from gaming. Because the UGB was approved by a vote, any amendments or changes can only be done by a vote of the people. As we now know, there will be no gaming, so there is no need to amend the ballot measure with language to prevent it.
“Fast forward to today,” he continued. “We know much more about what is happening on the trust land. They have sovereign control, they know which lands they own and what development intentions they have and they have an agreement memorializing them. These are all important, because it gives certainty. It is the opinion of the town attorney that the necessary findings for approval are in current met as required in the UGB language.”
Specifically, the “town attorney and town staff have determined that the request from the tribe — a sovereign government not subject to local land use controls or regulations and who has the authority to proceed with construction regardless of the town’s decision – is an ‘exceptional and unique circumstance’ could never be used as a basis for providing services to other private sector development projects outside the UGB.”
There are six findings to grant the council authority to provide service outside the UGB, and all of them must exist in order for that authority to occur.
“I know exactly what I said and when we said that there would need to be a vote of the people or possibly be because we didn’t believe, at any point in the last 12 years, that those findings could be found. I know that because I wrote them. (People) heard the first half, not the last half,” said Councilmember Debora Fudge. “Up until Dec. 20, those findings could not all be made, but once the land went into trust that was the final finding that could be made.
“Things have changed,” she continued. “(To provide services outside the) UGB have to meet all six findings ... in 24 years no one has met them until now. We’ve never been able to make this decision and I think we won’t ever make it again. This has been vetted. There are no violations in Measure H. It’s a very, very strict finding, and we wanted to make sure that finding was made legally. We’ve check with four different attorneys in the last week ... all from different areas of law. Yes, we did say it would take a probable vote of the people, because we didn’t think the findings would be met. We said for five years they couldn’t make the findings and then things changed in December. I can understand, having said that, how the public would feel about it not going to a vote. Because I do get it. They aren’t lying, that’s what was said, but we aren’t either, the situation has changed.”
Another issue voiced by those against the plan included a misconception that the tribe’s wastewater rates would be frozen at 2020 rates, while town citizens would continue to have increases. However, that turned out to be a misunderstanding of standard construction language that freezes construction fees at the levels at the time of construction, since projects can take years and rates can change in the meantime.
“It’s two different rates,” said MacNab. “One is the connection fee rate, it is proposed as a one-time fee for all 161 units. Then there are the monthly rates, and there is no locking in of those rates at 2020 rates. The monthly rates are not proposed to be locked in as part of this agreement and the rates will be the same as town rates.”
There was also concern that the plan violated Measure H tenets, including the requirement that parcels be contiguous to town boundaries or the UGB. Some of the parcels are contiguous and even though there are different parcel numbers, because of the sovereign nation status, it is considered contiguous under Measure H.
That concern was raised in part by Mary Ann Bainbridge Krause, who also expressed that they violated the provision protecting habitat and migration patterns by the removal of oak trees from the property. However, it was again pointed out that as a sovereign nation, they are not bound by the same laws and requirements.
Those in favor of the proposal highlighted the benefit to the town, the importance of being a good neighbor and the environmental impacts of them building their own facility. Several members of the Deer Creek neighborhood who would have the on-site plant directly on their back door pled for the council to approve the off-site plan.
Prior to the meeting, several people from the Vintana neighborhood had emailed with concerns about the piping being routed through their neighborhood, however MacNab informed the attendees that that was not the case.
“There are two options for connection to existing town sewer lines,” said MacNab. “One would be for Windsor River Road, the other option is connecting to the existing line on Starr Road. There is no proposed major sewer line construction in Vintana. A ‘pinch point’ has been identified near there, but it’s not significant enough to warrant work. There is no planned major sewer line construction in Vintana as part of this proposal.”
Councilmember Sam Salmon was interested in the possibility of pushing the vote back a week given the complaints about transparency, and Vice Mayor Esther Lemus agreed, citing the desire for additional education.
However, since both of them stated they planned to vote in favor of the proposal regardless, it was decided that there was no point in waiting a week, plus there may be the potential for a Brown Act violation if the board had decided together on a vote before the meeting was noticed.
MacNab also pointed out this agreement being voted on was not the end of discussions or negotiations, but only the beginning. The process of drafting the JEPA would allow for community input, MacNab stated, as well as give the council to consider other input.
Ultimately the vote would be unanimous in favor of the agreement to draft the JEPA.
“We need to vote, so we might as well vote tonight,” Fudge said. “In normal situations, you get public comment and go back and change plans based on comments and rewrite resolutions. But we can’t change these plans; it’s a deal or no deal. All of the elements are in place; they will walk if we try to change it. They don’t have to do this. They don’t have to talk to us. I understand it looks sudden but it has been going on for 12 years. (The tribe has been) very generous, and whoever said they are giving us another chance, they are. This is our chance to welcome them into our community. They were very hurt by things said about them in previous meetings and we didn’t hear from them for a long time after those comments were made. We enveloped them in our general plan; we want them to be a part of this community. It’s time.”
“Some members of our community have not been kind in the past,” said Lemus. “Some of the commentary was quite offensive. I want to leave that in the past and start a new beginning. I believe this is the environmentally superior option, it is legally sound, and what we don’t want to do is not move forward, have those impacts, and then it’s too late. I would also like to publically acknowledge the Lytton Tribe, our neighbors.”
“I appreciate what the tribe wants to do, and I think we need to move forward. It is the superior option, we’ve done our homework and we need to vote and move forward and let them get this in place and have them know we’re behind them and that we appreciate them,” said Councilmember Bruce Okrepkie.
“This has had a long and contentious history, since well before I was on council,” said Mayor Dominic Foppoli. “It’s time to move forward. It’s not a huge secret that (U.S Representative Jared) Huffman and I haven’t always agreed on this topic, but we now are in agreement. Going forward with this is the best thing for the town; the alternative is terrible for the town and this is wonderful for the town.”