Sixth District Upholds EIR and Cancellation of Williamson Act Contracts for Solar Farm Project

In Save Panoche Valley et al. v. San Benito County (2013) __Cal.App.4th__ (Case No. H037599), the organizations Save Panoche Valley, Santa Clara Valley Audubon Society, and Sierra Club (collectively Save Panoche Valley) challenged the County of San Benito’s certification of an EIR prepared for a proposed solar power project. The Sixth District Court of Appeal affirmed the trial court’s decision denying the petition and upholding the EIR.

Facts and Procedural Background

In 2009, PV2 Energy LLC (applicant) proposed to build a 420-megawatt photovoltaic Panoche Valley Solar Farm Project (the Project) in San Benito County on 4,885 acres of land primarily used for cattle grazing. The surrounding area is also mostly used for cattle grazing, though some land supports other limited agricultural uses. The proposed project site included land held under Williamson Act contracts. The applicant requested that the County make a finding that the project was compatible with the Williamson Act, but the County denied this request. Subsequently, the applicant requested cancellation of Williamson Act contracts on approximately 6,953 acres of land, of which approximately 4,563 were within the boundaries of the proposed project.

The County prepared a Draft EIR and circulated it for public review and comment in June 2010. The DEIR concluded that the project would result in significant and unavoidable visual impacts. The DEIR also identified potential biological impacts on populations of blunt-nosed leopard lizards, giant kangaroo rats, and San Joaquin kit foxes. The DEIR analyzed several alternatives to the proposed project, including a reduced density alternative and an alternative project site.

During the public comment period on the Draft EIR, the California Department of Fish and Wildlife (formerly Fish and Game), submitted comments recommending measures to avoid unlawful take of special species of concern, including the blunt-nosed lizard. A Final EIR was released in September 2010 which included a revised project alternative. This alternative included a conservation easement on the project site, which reduced the project size and density. Under this proposal, the project would generate approximately 399 megawatts of power. The Final EIR concluded that this revised alternative would meet most of the project objectives and eliminate five of the previously significant and unavoidable impacts on biological and visual resources.

Following release of the Final EIR, the County held a public hearing at which it certified the EIR, adopted CEQA findings, and approved the request to cancel Williamson Act contracts. Save Panoche Valley filed suit, but the trial court denied the petition for writ of mandate, and the petitioners appealed.

The Williamson Act Claims

On appeal, Save Panoche Valley argued the County erred when it cancelled the Williamson Act contracts on land within the proposed project’s boundaries. They argued the record failed to support the County’s findings that “other public concerns substantially outweigh the objectives of the Williamson Act,” and that the cancellations were made in error because land suitable for a large-scale solar facility was available which was not held under contract

Government Code sections 51200 et seq. describe the procedures for cancelling a Williamson Act contract. An city or county can only approve a cancellation if it makes certain findings. The findings must conclude either that cancellation is consistent with the Williamson Act, or that cancellation is in the public interest. In this case, the County Board found that “other public concerns” substantially outweighed the objectives of the Williamson Act.

The appellate court found support in the record for the Board’s finding. California has a well-established interest in promoting the development of renewable energy sources, apparent in legislation such as AB 32, the California Global Warming Solutions Act of 2006, and the Renewables Portfolio Standard. The record indicated that the solar project would help further the state’s progress towards achieving its renewably energy goals. Further, agriculture would continue in limited amounts on land within and adjacent to the project site encumbered by conservation easements requiring cattle grazing. The court determined this substantial evidence supported the Board’s findings, despite evidence in the record that Save Panoche Valley pointed to that supported the denial of the Williamson Act cancellations. It was the duty of the Board to weigh the pros and cons of cancelling the contracts, and not the court’s.

The appellate court also rejected Save Panoche Valley’s argument that proximate, non-contracted alternative land was available for a solar project. Under the Williamson Act, “proximate” has been construed as meaning “close enough to the restricted parcel to serve as a practical alternative for the proposed use.” The record demonstrated that the suggested alternative land was located approximately 60 miles away, in two different counties, and also included land encumbered by Williamson Act contracts. Further, portions of the land were held by water districts that the applicants had previously approached regarding a solar project but with whom the applicant had been unable to reach a deal. The court found that these and other factors provided substantial evidence supporting the Board’s determination that no proximate, non-contracted land was available for use as an alternative project site.

The CEQA Claims

In addition to their Williamson Act claims, Save Panoche Valley also challenged both the adequacy of the EIR under CEQA and the evidence supporting the Board’s various CEQA findings.

First, Save Panoche Valley argued the Board violated CEQA because it approved a project for which a feasible alternative was available. To support this argument, appellants pointed to the same alternative site they believed made the Williamson Act cancellations improper. But the Board cited several reasons for determining that the suggested alternative site was infeasible for the proposed solar project, including timing, financing, regulatory, and jurisdictional issues. These various factors provided substantial evidence in support of the Board’s rejection of the alternative site.

Second, appellants challenged the project EIR’s analysis and mitigation of biological impacts. They argued that the EIR failed to include adequate biological surveys regarding the blunt-nosed leopard lizard. But the court determined additional surveys were not necessary merely because they might be helpful. The Final EIR responded to comments from the California DFW and established a protocol for surveys to occur prior to construction. This was sufficient.

Third, Save Panoche Valley raised various challenges to mitigation measures adopted in the EIR to address biological impacts. Appellants argued that the EIR improperly deferred mitigation of impacts to the blunt-nosed leopard lizard. But the court determined the mitigation measures were not impermissibly loose or open-ended. For example, upon completion of the lizard survey, a minimum buffer of 22 acres would be set aside for each lizard. The measures did not simply call for adopting recommendations of the consultants conducting surveys. Instead, the measures provided for specific actions to be taken upon the discovery of a certain species. This particularity was sufficient to avoid improper deferral of mitigation.

The court also determined that substantial evidence supported the Board’s findings that mitigation measures would significantly reduce other biological impacts, such as potential impacts to San Joaquin kit foxes and the giant kangaroo rat. Further, substantial evidence supported the Board’s conclusion that certain mitigation lands were suitable for conservation. Finally, substantial evidence supported the Board’s selection of various ratios for mitigating certain habitat and land, such as mitigation of giant kangaroo rat habitat at a 3-to-1 ratio.

Lastly, the appellants challenged the EIR’s agricultural impact analysis. The project would convert some prime agricultural land, but mitigation measures were adopted which included the protection of land in and around the project site and the creation of agricultural conservation easements. Save Panoche Valley argued these mitigation measures failed to “minimize, rectify, reduce, and eliminate [agricultural] impacts,” because the measures did not ensure the creation of additional agricultural lands. But the court determined this was not the proper standard for “mitigation” as defined by CEQA Guidelines section 15370. Mitigation can be achieved by: (1) avoiding the impact altogether; (2) minimizing impacts by limiting the scope of the project; (3) rectifying the impact by rehabilitating or restoring the impacted environment; (4) reducing or eliminating the impact over time through preservation and maintenance operations during the life of the project; and (5) compensating for the impact by replacing or providing substitute resources or lands.

Ultimately, the court determined that the record supported conclusions reached in the EIR and the CEQA findings made by the Board, including findings made in its statement of overriding considerations.  Thus, the court of appeal affirmed the trial court’s judgment upholding certification of the EIR and project approval.