The CA State Lands Commission will vote  Thursday, October 13, 1 pm at the Sheraton San Diego on a 40 years lease for the construction and operation of industrial wind turbines on a school lands parcel it administers in the McCain Valley, east of San Diego.  This project is one of a larger project on federal lands – Tule Wind Farm – that will lead to injury and deaths for the many eagles that live in the area.

Tell the CA State Lands Commission to vote no on this project or at least stay voting until and unless USFWS granted an eagle take permit and litigation over the project is resolved.  Email comments on Agenda Item 63 to CSLC.Commissionmeetings@slc.ca.gov

October 16 Staff Report recommending approval despite “significant and unavoidable” impacts on eagles can be found here.

POC’s letter to the Commission can be found here and is reproduced below.

October 10, 2016

SENT VIA EMAIL TO CSLC.COMMISSIONMEETINGS@SLC.CA.GOV and JIM.PORTER@SLC.CA.GOV

Dear Commissioners:

The Protect Our Communities Foundation (POC) hereby submits this public comment to the State Lands Commission (the “Commission” or “SLC”) on the issuance of a General Lease – Industrial Use to Pacific Wind Development, LLC, beginning October 13, 2016, for a term of 40 years, for the construction, operation, maintenance, and decommissioning of a wind energy facility consisting of seven wind turbines of up to 3.0 megawatts each on State-owned school lands in the McCain Valley, east of San Diego (the “project”), item 63 on its October 13, 2016 agenda.

While POC believes that the ultimate approval of this project would be devastating to the area’s eagles and thus should never be approved, at this time POC requests that the Commission defer voting on this matter until USFWS analyzes the impacts on eagles and makes a determination on whether or not to issue the developer an eagle take permit under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668c) and until ongoing litigation challenging the federal approvals of this project is resolved (see POC v. Jewel, United States District Court SDCA Case No. Case No. 3:14-cv-02261-JLS-JMA).

The Protect Our Communities Foundation (POC) is a San Diego based 501(c)(3) nonprofit dedicated to protecting wild and rural communities and the people, plants, and animals that inhabit them from destructive, industrial energy infrastructure development.  POC advocates on behalf of Southern California utility ratepayers against fossil fueled energy development and in support of the transition to sustainable energy systems. POC has appeared before state and federal agencies and in the California courts for the past decade representing the unique perspective of small and medium-sized communities throughout Southern California.  POC has long advocated the protection of eagles and other birds from certain death in the wind turbines of the Tule Wind Farm, of which this project is part.

 

  1. The public’s right to meaningfully participate in the public process has been frustrated

It is extremely unfortunate, after considering this project for 9 years, that the Staff Report was issued just 8 days before the Commission meeting and just 3 business days prior to the public comment due date of October 10.  Such a short time has deprived the public its right to meaningfully provide public comment on this project.  For this reason alone, POC requests that the vote on this project be set for a future meeting so that the POC and other interested parties may exercise their right to provide meaningful public comment.

The Bagley-Keene Opening Meeting Act requires that agendas of meetings for state bodies be made available to the public at least 10 days prior to a regularly scheduled meeting.  Here, the agenda was published 10 days prior but it included a link to the Staff Report that did not work and the Staff Report was not otherwise available.  When that link was make live two days later, the agenda was effectively amended thus violating the 10 day requirement which is intended to put the public on notice as to what will transpire at a public meeting.

Furthermore, the Act certainly does not prevent the issuance of Staff Reports earlier than 10 days and the Commission’s duty to protect the public’s right to participate in government decision-making calls for Staff Reports, especially on complex and controversial matters that have been under review for years, be made available much earlier.  Despite repeated attempts to gain information from Commission Staff regarding this project, POC has only had a few days to review the Staff Report–– the only meaningful document provided to POC and the public since the project application in 2007.

 

  1. The Commission should stay consideration of the project until litigation of this highly controversial project is resolved

The Bureau of Indian Affairs’ approval of Tule Wind and granting of a lease similar to that at issue here is currently subject to litigation by Protect Our Communities and other plaintiffs with a hearing date in U.S. District Court February 17, 2017. Action by the Commission now would be premature. A Motion for Summary Judgment is pending wherein POC has argued that the BIA portion of the Tule Wind project required its own Environmental review under the National Environmental Policy Act because the BIA approved activities that are directly at odds with the Bureau of Land Management’s approval of the project.

Further, the Court will hear whether the BIA was obligated to prepare supplemental NEPA review to analyze significant information that has surfaced since the EIS was completed in 2011, including substantial changes in the project’s design.  By relying only on the BLM’s environmental reports, the BIA violated NEPA’s public disclosure and public participation requirements. The issue of whether BIA is required to prepare an EIS under NEPA or whether BIA can rely on supplemental information provided to it by the BLM without a proper vetting under NEPA is currently before the District Court.  On September 9, 2016, POC asked the District Court to set aside BIA’s lease for the proposed project based upon flaws with the EIS that was prepared in the same document as the EIR upon which Staff Report’s recommendations purport to rely.  Given that the developer has not even yet applied for required eagle take permit and is thus far off from being able to begin construction, deferring decision on this matter while litigation is resolved will not unduly prejudice applicant and will assure that Commission does not committee to a contract that is the applicant is later unable to perform.

 

  1. The Staff Report Is Premised Upon The Mistake Of Fact That There Is An Eagle Take Permit Application Presently Under Review By USFWS

Even given the short time for review, it is abundantly clear that the Staff Report in inaccurate as to the relevant facts of this project and inadequate as the only staff report upon which the Commission will base its decision.  POC and other environmental protection advocates primarily oppose this project because of the death and injury (“take”) that the turbines will cause to the many eagle families that live and breed in the project area and the Commission’s failure of due process.  By omission and wrongful assertion of fact, the Staff Report wrongly describes the project background, current status, and relevant law in regards to eagle take due to collision with wind turbines.

The Staff Report acknowledges that eagle take is at issue in this project application: “As stated above, although the likelihood of golden eagle take over the school lands parcel is low, the potential exists. Moreover, because golden eagles are protected under State and federal law, potential impacts are significant. Accordingly, the Findings in Exhibit E identify impacts to golden eagles as significant and unavoidable.” (SLC, Oct 13, 2016 Item 63 Staff Report at p. 7 hereinafter “Staff Report”.)

To this end, the lease will apparently include a specific lease provision that “Applicant acknowledges that unauthorized take of golden eagles is prohibited, and that it assumes full liability for any take that may occur prior to issuance of a take permit by the U.S. Fish and Wildlife Service, including enforcement action by the U.S. Department of Justice.”  (Staff Report at p. 1.)

Yet, paradoxically, the Staff Report concludes, “This activity involves lands identified as possessing significant environmental values pursuant to Public Resources Code section 6370 et seq., but such activity would not affect those significant lands.” (Staff Report at p. 16.)  This conclusion is not supported by the acknowledged fact that there will be “significant and unavoidable” impacts to golden eagles and their habitat.  As defined in section 6370, this will certainly impact land identified as possessing significant environmental value – that which is home to multiple breeding pairs of eagles.

The only support offered for this conclusion is based upon a wrongful assertion of facts regarding the project history and present status and an argument based upon Staff’s  unreasonable piecemeal analysis of the project impacts.

The Staff Report is totally silent to the actual history of this project whereby the USFWS rejected the project developer’s application for an eagle take permit for the Tule Wind Project based upon a “programmatic eagle take permit application under the Bald and Golden Eagle Protection Act (Eagle Act) for Phase II of the Tule Wind Project, LLC that [USFWS] received from you on March 14, 2014.  Your submission included a draft Eagle Conservation Plan (ECP) as the foundation of the application.” (Exhibit A.)  Since that time, as confirmed by email last week by USFWS Deputy Chief of Migratory Birds Amedee Brickey and Eagle Permit Coordinator Heather Beeler, USFWS has not received another permit application under the Eagle Act for Tule II, including the school lands at issue here.

The Staff Report’s assertion that USFWS is presently evaluating an Eagle Take Permit is untrue.  The Staff Report asserts: “The USFWS staff is evaluating this estimate as part of processing the Applicant’s eagle conservation plan (ECP) and eagle take permit application.” (Staff Report at p. 6.)  As the documented facts show, USFWS already evaluated the applicant’s ECP plan and take permit and rejected them three years ago.  (Exhibit A.)  Since then, and up until today, USFWS has not approved a take permit for this project and is not presently evaluating one.

 

  1. The Staff Report Analysis is not Informed by USFWS analysis and suffers from unreasonable piece-mealing of its analysis of impacts to eagles

The staff has piece-mealed its analysis – attempting to engage in review of this project in a vacuum that is unreasonable and contrary to the state and federal laws to protect the environment and eagles.   The Staff Report claims, “Whereas the CPUC, as lead agency, must review the entire Tule Wind Project, the Commission, as a responsible agency, is limited to reviewing the portion located within the Commission’s jurisdiction.” (Staff Report at p. 4.)

Staff claims to have “extrapolated” its own estimates of harm to eagles on the school lands and thus concluded “Because the seven wind turbines on school lands are more than four miles from the identified nest,  Commission staff believes it is unlikely they would lead to the loss of breeding territories and associated mortality of nesting adults and their fledglings.” (Staff Report at p. 6)

By limiting its review to this project with blinders on to the cumulative impacts of not just other projects but its own project of the Tule Wind Farm, Staff has impermissibly piece-mealed its review and it thus fails as persuasive.   Staff’s analysis is based on just analyzing flight paths on the school lands under current conditions and does not account the cumulative impacts of turbines from the rest of the very same project – Tule Wind Farm.  As USFWS explained, there is only one project as issue here and only one project which the Commission’s approval should reviewed against:

“Due to the close proximity of the turbines in the valley and along the ridge, all the proposed turbines associated with this project should be analyzed and considered together as a single project. . . We characterize the entire Tule Wind Project as a Category I – High Risk Project because it poses a high risk to eagles and the potential to avoid or mitigate impacts is low (see our ECP Guidance). We recommend that when you apply for an Eagle Act permit, you consider a different turbine siting design for the proposed turbines on the ridgeline or moving the project

to another location to minimize and avoid eagle take at the Tule Wind Project.) (Exhibit A.)

With hazards in most all directions, the eagle foraging, breeding, and nesting behavior will change and it could very well lead to greatly increased eagle flight paths through the school lands.

The Staff Report claims that “The USFWS staff is evaluating this estimate as part of processing the Applicant’s eagle conservation plan (ECP) and eagle take permit application.” (Staff Report at p. 6.)  This cannot be true as the only analysis that USFWS has conducted resulted in denial of permit for this project.  There is no current analysis being undertaken because a permit has not been applied for.  The Commission should wait for USFWS to actually conduct analysis and make a determination of the permit.

POC requests that the Commission defer its decision until, at the very least, after an application is granted by the USFWS for an eagle take permit.

 

  1. Approval of this lease would be in violation of the Commission’s Policy’s on Environmentally Responsible Development

The Staff has rightly concluded that “impacts to golden eagles as significant and unavoidable.”  The approval of a project that will result in adverse impacts to an imperiled scientifically and culturally critical species protected by its own Act of Congress is not the environmentally responsible development called for by Commission policy.  In the Commission’s 2008 Resolution Supporting The Environmentally Responsible Development Of School Lands Under The Commission’s Jurisdiction For Renewable Energy Related Projects, the Commission calls for the protection of land that would be harmed by this project:

WHEREAS, the Commission insists that any development of any lands within its jurisdiction is done with assurances that the State’s unique and sensitive environment will be protected; now, therefore be it

RESOLVED BY THE CALIFORNIA STATE LANDS COMMISSION that it supports the environmentally responsible development of school lands under the Commission’s jurisdiction for renewable energy related projects;

Similarly, approval of this project would be in violation of the Commission’s Strategic Plan.  As explained in the Staff Report, “Specifically, the proposed lease is consistent with Key Action 2.1.2 to promote renewable energy and environmentally responsible resource and energy development projects” (Staff Report at p.16.)  A project that will have “significant and unavoidable” impacts on a protected species for which USFWS has only denied the necessary eagle take permit is not environmentally responsible development.

 

  1. The Staff Report Inflates the Benefits and Downplays the Risks of this Project

The Staff Report claim that “the lease would substantially increase revenue generated for the California State Teachers’ Retirement System” is an exaggeration.  The Staff Report states, “The proposed lease would, at a minimum, provide $135,500 per year in additional revenue. Because the total gross revenue from all surface uses of school lands was $339,950 in Fiscal Year 2014-2015, the lease would substantially increase revenue generated for the California State Teachers’ Retirement System.” (Staff Report at p. 15).

In contrast to the Staff Report’s assertions that this one project would substantially increase revenue for the CALster, this lease would represent only small fraction of the total gross revenue for 2014-2015 of $7,831,577.35.  (Annual Staff Report on the Management of State School Lands Fiscal Year 2014-15 at p. 33.)

At the same time, long term viability of this project is uncertain.  This project is lacking an eagle take permit and even if the developer, at some uncertain point in the future, applies for and is  granted an eagle take permit, pursuant to regulations, as updated this year, USFWS could only issue a 5 years.  Yet the Commission has before it a 40 year lease.  It is highly likely, once there is documented evidence as to the level of take that will occur with the construction and operation of the turbines in occupied eagle breeding territory that USFWS will grant future permits.

POC recommends that the Commission delay consideration of this matter until all such necessary permits are granted and, if justified, grant a 5 year lease to be renewed should a new eagle take permit to be granted.

 

Conclusion

For the above reasons, POC requests that the Commission withdraw Item 63 from the October 13, 2016 agenda, reissue a corrected staff report after an eagle permit has been granted, consult with USFWS, and provide ample opportunity for public comment. To do otherwise will be to the detriment of the citizens of California, including the interests of teachers that the Commission is expected to protect.

Thank you,

April Rose Sommer

POC Executive Director