Tag: EIR

Fifth District Court of Appeal Upholds EIR for Wind Farm in Kern County

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The court held that the EIR’s mitigation measure for aircraft safety impacts, requiring that wind turbines be reviewed by the Federal Aviation Administration before issuance of building permits, was feasible and enforceable. The court also held that substantial evidence supported the EIR’s conclusion that the mitigation measure would be effective to mitigate impacts on aviation safety. Citizens Opposing a Dangerous Environment v. County of Kern (June 30, 2014, Case No. F067567) was certified for partial publication on July 25.

The case arose from the County of Kern’s approval of a conditional use permit for the operation of a wind farm in the Tehachapi Wind Resource Area. The county approved the CUP for the construction of wind turbines, up to 500 feet tall, after preparing an EIR. The EIR determined that the wind turbines might pose significant safety hazards to aircraft and gliders using a nearby private airport. The county, therefore, adopted a mitigation measure requiring the project applicants to obtain a “Determination of No Hazard to Air Navigation” from the Federal Aviation Administration (FAA) for each wind turbine prior to issuance of building permits. Citizens Opposing a Dangerous Environment (CODE) filed a petition challenging the EIR on various grounds. The trial court denied the petition and CODE appealed.

CODE’s principal challenge on appeal was to the validity of the aircraft safety mitigation measure. CODE argued that the EIR failed to describe an adequate mitigation measure as a matter of law because the measure would not avoid or minimize significant impacts to aviation safety. The court disagreed, noting the mitigation measure’s requirement that the applicant obtain FAA certification for each wind turbine prior to construction. The court then pointed to other CEQA cases holding that mitigation measures requiring compliance with existing regulatory schemes are common and reasonable. And since federal law occupies the entire field of aviation safety, the court found it reasonable to expect compliance with FAA regulations by the applicants.

CODE also argued the aircraft safety mitigation measure was infeasible because the FAA could not legally block the project through enforcement of its “hazard/no-hazard” determinations. But the court noted the evidence suggested the hazard/no-hazard determinations can have a substantial practical impact on projects, even if the FAA did not directly have the power to halt the project. In any event, the mitigation measure made issuance of building permits for each wind turbine contingent on FAA approval. So while the FAA could not directly halt construction of the project, the county, through its police power, could. Therefore, the court determined the mitigation measure adopted to protect aircraft safety was feasible and enforceable, and the EIR’s conclusion that the mitigation measure would be effective was supported by substantial evidence.

The court also rejected CODE’s claims that the EIR should be set aside because the county failed to respond to late comments and that the county was required to adopt either CODE’s proffered mitigation measure or the EIR’s “environmentally superior alternative.”

Trial Court Rejects Challenge to EIR for Cadiz Valley Groundwater Recovery Project in San Bernardino County, Appeal Likely to Follow

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On May 1, 2014, the Orange County Superior Court ruled against petitioners in six related cases and upheld the EIR for the Cadiz Valley Water Conservation, Recovery, and Storage Project.  The court noted its concern over the designation of Santa Margarita Water District as the lead agency for the project under CEQA.  But it concluded that even if the County of San Bernardino would have been a more appropriate lead agency, these concerns did not provide sufficient grounds for the granting of any of the writs sought by petitioners Delaware Tetra and Center for Biological Diversity.

Cadiz, Inc., is a private corporation that owns approximately 34,000 acres in the Mojave Desert portion of eastern San Bernardino County.  A vast groundwater basin capable of holding an estimated 17-34 million acre feet (MAF) underlies the Cadiz property.  The groundwater recovery project would allow Cadiz to sell up to 2 MAF of water that would otherwise become saline and evaporate over the next 100 years.  The project involves pumping and delivering to water providers like the Santa Margarita Water District a total of 50,000 AF a year for 50 years. The participating water districts and water providers could also send their surplus surface water supplies to the Cadiz Valley Project to recharge the groundwater and store it until the water is needed in subsequent years.

Currently, six entities have signed purchase or option agreements with Cadiz: 1) Santa Margarita Water District, 2) Three Valleys Municipal Water District, 3) Suburban Water Systems, 4) Golden State Water Company, 5) Jurupa Community Services, and 6) California Water Service Company.  These entities will receive 80% of the project’s water supplies, while 20% is reserved for future use by water agencies in San Bernardino County.

The project drew CEQA challenges from both the private sector and environmental groups.  Petitioner Delaware Tetra Technologies owns a salt mining operation in the Cadiz and Fenner Valleys of San Bernardino County. The groundwater recovery project threatens the continued operation of the salt mine because it will reduce the flow of saline water that creates salt when it evaporates.

In other suits, petitioners Center for Biological Diversity (CBD) and other conservation groups asserted several CEQA claims, including concern over the potential environmental impacts on nearby springs in wilderness areas and the Mojave National Preserve.   They argue that the project would be growth-inducing because the Santa Margarita Water District will send the groundwater it purchases to support development in Orange County.  The Orange County Superior Court’s Ruling did not specify its rationale for rejecting petitioners’ CEQA arguments.  Instead, the court directed respondents Santa Margarita Water District and the County of San Bernardino to prepare proposed findings as to each petition reflecting that the court adopted the respondents’ arguments but noting that the court had some concerns regarding the lead agency designation.  Counsel for CBD has indicated that it will appeal the decision.

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