Law Of?ces of

St c. lit . .
?251:2, Kris: er Stephan C. Volker "?54 0?
Stephanie L. Clarke 436 - 14?? Street, Suite 1300

Daniel P. Garrett-Steinman - -

Jamey MB mks, Oakland, Califorma 94612

M. Benjamin Elchenberg Tel: (510) 496-0600 Fax: (510) 496-1366

svolker@volkerlaw.com

January 13, 2015

Via Electronic Mail
email: 

Ms. Patricia Valenzuela

Planner IV

imperial County Flaming and Development
Services Department

80] Main Street

El Centro, CA 92243

Re: Comments of Backcountry Against Dumps, Donna Tisdale, Carolyn Allen,
Danny Robinson, William Robinson, Joseph Tagg and Michael Abatti on the
Final Environment Impact Report for the Iris Cluster Solar Farm Project,
SCH No. 2014041091

Backcountry Against Dumps, Donna Tisdale, Carolyn Allen, Danny Robinson, William
Robinsoa, Joseph Tagg and Michael Abatti (collectively, ?Backcountry?) submit the following
comments on Imperial County?s (?County?s?) January 2015 Final Environmental Impact Report
for the his Cluster Solar Farm Project (?Iris Cluster Solar" or the ?Project?). These
comments build on Backcountry?s November 19, 2014 Draft Environmental Impact Report
comments. Backcountry?s DEIR comments can be found i with Imperial County's
(?County?s?) response at FEIR to 111-257.

Backcountry urges the Planning Commission to disapprove the Iris Cluster Solar Project
because the Project violates the County General Plan, and its FEIR violates the California
Environmental Quality Act Public Resources Code section 21000 et seq.

The Project would involve the construction and operation of four utility-scale
photovoltaic solar electrical generation facilities - the 364.27-acre Ferrell Solar Farm
(CUP 13?0054), the 396.2-acre Rockwood Solar Farm (CUP 13-0057), the 501 .88-acre Iris Solar
Farm (CUP 13-0055) and the 138.4-acre Lyons Solar Farm (CUP [3-0056). Each of the projects
would require its own inverter modules and pad-mounted transformers. FEIR 3-8. The Project
would also require an unspeci?ed number of buildings, auxiliary facilities, and
substations. Id. ?Each building would include its own emergency power, ?re suppression,
potable water system and septic system.? Id. Combined, the four projects would generate as
much as 360 megawatts of electricity. Id.

 

Ms. Patricia Valenzuela
January 13, 2015
Page 2

The Project would be located on and displace more than 1.400 acres of, according to local
farmers, some ofthe best and most productive agricultural land in Imperial County, including
662.15 acres that are protected by Williamson Act contracts and substantial acreage of California
Department of Conservation-designated Prime Farmland and Farmland of Statewide Importance.
EIR 3-1, 3-26. This premier farmland is currently used for agricultural production, and is truly
irreplaceable. Id. The food and ?ber it produces year in and year out for Americans throughout
our country are of inestimable value to present and future generations. Yet the Project would
preclude cultivation of the land throughout its operational lifetime, and possibly permanently.
FEIR 4.2-12 (?there would be a 40-year period where existing agricultural uses within the project
study areas would no longer be possible . . . [and] it is possible that project-related activities 
soil disturbance) and subsequent restoration of the site could result in a net reduction in Prime
Farmland or Farmland of Statewide Importance?). Furthermore, the Project would likely cause
signi?cant additional impacts to agriculture and the agricultural economy countywide by
reducing demand for agriculture-serving businesses and interfering with one of the only airports
servicing agricultural spraying operations in the County.

Backcountry opposes this Project as an unnecessary industrialization of highly productive
farmland. Not only would the Project have signi?cant environmental, agricultural and economic
impacts, the proposed industrial-scale electrical generation and transmission uses are forbidden
by the Imperial County General Plan (and hence the Planning and Zoning Law, Government
Code section 65000 et seq.). In ?lrther expression of these major concerns and others,
Backcountry offers the following comments to assist the County in analyzing the Project and its
FEIR.

I. THE PROPOSED SOLAR ENERGY GENERATION AND TRANSMISSION
USES ARE FORBIDDEN BY THE IMPERIAL COUNTY GENERAL PLAN
LAND USE ELEMENT.

As demonstrated in Backcountry?s DEIR comments, the Project is inconsistent with the
County General Plan, and thus its approval would violate the Flaming and Zoning Law.
Neighborhood Action Group v. County of Calaveras (?Neighborhood?) (1984) 156 Cal.App.3d
1 176, 1184 permit action taken without compliance with the hierarchy of land use laws is
ultra vr?res as to any defect implicated by the uses sought by the Endangered Habitats
League, Inc. v. County of Orange (?Endangered Habitats League") (2005) I31 Cal.App.4th 777,
782 project is inconsistent if it con?icts with a general plan policy that is fundamental,

While the FEIR attempts to distinguish Neighborhood on factual grounds, it does not contest
the validity of its primary legal holding and the established law in California - that land use
permits must comply with the applicable zoning ordinance, and that both must comply with the
applicable general plan. FEIR Endangered Habitats League, I31 Cal.App.4th at 782;
FUTURE, 62 Cal.App.4th at 1342.

(Cori 

 

 

Ms. Patricia Valenzuela
January 13, 2015
Page 3

mandatory, and clear?); FUTURE v. Board of Supervisors UT (1998) 62 Cal.App.4th
1332, 1342 (invalidating county?s project approvals because the project was ?inconsisten[t] with
?mdamental, mandatory and Speci?c land use policy"). The responses to
Backcountry?s comments fail to rebut Backcountty?s showing.

The Imperial County General Plan?s Land Use Element speci?cally forbids the proposed
solar uses on lands designated by the Plan as ?Agriculture,? which includes the entirety of all
Project sites. FEIR 4.10-2 (Figure 4.10-2 shows that all Project sites are designated in the
General Plan as ?Agriculture"). The Land Use Element directs that lands designated as
?Agriculture? may not be developed with uses that do not preserve and protect agricultural
production and related activities. Imperial County General Plan, Land Use Element (Revised
2008), page 48.

The Land Use Element mandates that

w] here the Agriculture] designation is applied, agriculture shall be promoted
as the principal and dominant use to which all other uses shall be subordinate.
Where questions of land use compatibility arise, the burden of proof shall be on
the non-agricultural use to clearly demonstrate that an existing or proposed use
does not con?ict with agricultural operations and will not result in the premature
elimination of such agricultural operations. No use should be permitted that
would have a significant adverse re?ect on agricultural production, including food
and ?ber production, horticulture, ?oraculture, or animal husbandry. . . .

Imperial County General Plan, Land Use Element (Revised 2008), page 48 (emphasis added).

Here, it is undisputed that the proposed industrial-scale solar facility uses would
terminate and prevent all agricultural use on the subject lands for at least the Project?s operational
lifetime of up to 40 years, and even longer if the County approves new or continued non-
agricultural uses on the Project sites after the proposed CUPS expire. FEIR 4.10-11 (?The
projects would convert the sites ?'om agricultural land to a solar energy facility? 3-11 (Ferrell
Solar Farm ?parcels would be leased to the project applicant for up to 40 years, which is the
anticipated duration of the project?), 3-14 (stating that the anticipated duration of Rockwood
Solar Farm, Iris Solar Farm and Lyons Solar Farm would also be ?up to 40 years"), 42-18
(?Agricultural productivity of the project study areas could be reduced as a result of the projects,
even a?er ?nal restoration of individual site components? (emphasis added?; FEIR 111-255
(Project would cause ?loss of 1,400 acres of farmland," which is a slight reduction from the
original 1,422-acre Project size). Because the proposed solar energy generation and transmission
uses would eliminate the potential for fanning on the Project sites, not to mention impede
agricultural operations on surrounding lands, the Project is speci?cally forbidden by the General
Plan.

 

(to it?

Ms. Patricia Valenzuela
January 13, 2015
Page 4

The FEIR makes multiple attempted excuses for allowing the Project despite the Land
Use Element?s prohibition on its proposed conversion of productive farmland to industrial-scale
electrical generation and transmission facilities. All fail.

For example, the FEIR asserts that the ?project-related impact" of ?terminat[ing] and
prevent[ing] agricultural uses on the project sites? would ?be reduced to a less than significant
level" through mitigation measures. FEIR But the potential alleged post-Project
restoration of the land to agricultural quality and uses does not change the fact that agricultural
uses will be terminated and prevented on the Project sites for up to 40 years under the currently
proposed CUPS. As the Department of Conservation itself has determined, and reiterated in its
July 16, 2010 letter to Imperial County Flaming and Development Services, the ?loss of
agricultural land (even temporary) represents a reduction in the State's agricultural land
resources." FEIR This long-temi loss of productive agricultural use plainly violates the
General Plan?s prohibition.

The FEIR also wrongly claims that the Land Use Element ?does not [actually] restrict or
otherwise forbid other [than agricultural] uses." FEIR Ill-249. This assertion is completely
refuted by the Land Element?s plain language. The Land Use Element states that use
should be permitted that would have a signi?cant adverse re?ect on agricultural production."
Imperial County General Plan, Land Use Element (Revised 2008). page 48 (emphasis added). It
also provides that ?[w]here questions of land use compatibility arise, the burden of proof shall be
on the non-agricultural use to clearly demonstrate that an existing or preposed use does not
con?ict with agricultural operations and will not result in the premature elimination of such
agricultural operations.? Id. In other words, the Land Use Element prohibits the County from
approving non-agricultural uses on designated ?Agriculture? land unless the project proponent
can prove that the use would not interfere with agricultural operations.

The EIR also mistakenly asserts that ?conversion of agricultural uses is allowed? by the
Land Use Element ?in cases ?where a clear long term economic bene?t to the County can be
demonstrated through the planning and environmental review process.? (citation
omitted, but quoting Land Use Element (Revised 2008), page 43). This false claim is likewise
refuted by the Land Use Element. The Land Use Element provision the FEIR cites does not even
pertain to what uses are allowed on land designated ?Agriculture." Rather, it relates to whether
and how the General Plan can be amended to remove land from the ?Agriculture category."
Imperial County General Plan, Land Use Element (Revised 2008), page 48. There is no General
Plan amendment proposed here.

The EIR makes other demonstrably false claims. It asserts that other elements of the
General Plan, including the Agricultural Element, ?Speci?cally allow[] non-agricultural
development on land within the Agricultural Category." FEIR But the FEIR provides no
citation to any such language in the General Plan. Why? Because there is no such language.
Moreover, even if the General Plan were amended in the future to purportedly allow uses on

 

(cosh

Ms. Patricia Valenzuela
January 13, 2015
Page 5

designated agricultural land that con?ict with the Land Use Element's strict textual land use
standards, the General Plan would be internally inconsistent and therefore invalid. Government
Code 65300.5 (?the Legislature intends that the general plan and elements and parts thereof
comprise an integrated, internally consistent and compatible statement of policies for the
adopting agency"); Concerned Citizens of Calaveras County v. Board ofSnpervisors (1985) 166
Cal.App.3d 90, 97 general plan must be reasonably consistent and integrated on its face?);
Sierra Club v. Kern County (1981) 126 Cal.App.3d 698, 704 (?Since the general plan was
internally inconsistent, the zoning ordinance under review . . . could not be consistent with such
plan and was invalid when passed").

Likewise, to the extent the ??County?s Zoning Ordinance?? which by law is subordinate
to the General Plan purports to permit the proposed industrial uses ??in the A-2, A-Z-R, and A-
3 zones; [sic] subject to approval of a it is also inconsistent with the Land Use Element?s
textual land use standards and therefore invalid. FEIR (quoting DEIR 
Government Code 65860(a) (?County or city zoning ordinances shall be consistent with the
general plan of the county or city," and to be ?consistent,? the ?various land uses authorized by
the ordinance [must be] compatible with the objectives, policies, general land uses, and programs
speci?ed in the plan?); Neighborhood, 156 Cal.App.3d at 1184-

Nor, contrary to the intimations, does it matter whether, as the FEIR asserts, that
?solar energy [is] consistent with the County?s overall goals and energy policies.? FEIR 
(emphasis added). The question here is whether the Project complies with the Land Use
Element?s strict and mandatory use standards for designated ?Agriculture" land. While the
County may have discretion to interpret the ?General Plan goals and policies for preserving
agricultural land [that] are not in?exible,? and balance those with ?General Plan goals and
objectives of economic growth and regional vision," the Land Use Element?s strict protections
forbidding develoPment of designated agricultural land are not the commonly ?amorphous"
general plan policies that ?afford[] of?cials" such FEIR (?rst two quotes);
FUTURE, 62 Cal.App.4th at 1341 (last three quotes).

Because, as described in Backcountry?s DEIR comments and below, the Iris Cluster Solar
Project is ?inconsisten[t] with the ?tndamental, mandatory and specific land use policy" set forth
in the above quoted ?Agriculture" designation, its approval would violate the General Plan and
be ultra vires. FUTURE, 62 Cal.App.4th at 1342 (emphasis added); Endangered Habitats
League, 131 Cal.App.4th at 732. Indeed, the FEIR itself recognizes that the Project cannot be
approved unless the Project proponent ?demonstrate[s]? and the Board ?nds that [the
Project] ?does not con?ict with agricultural operations and will not result in the premature
elimination of such agricultural operations' and (2) it meets the requirement that ?no use should
be permitted which would have a signi?cant adverse effect on agricultural production.?? FEIR
(quoting Land Use Element (Revised 2008), page 48). And based on the facts on the
ground, the Board cannot make that ?nding. As the BER admits, the proposed industrial-scale
solar facility uses would terminate and prevent all agricultural use on the subject lands for at least

 

([0le

Ms. Patricia Valenzuela
January 13, 2015
Page 6

the Project?s operational lifetime of up to 40 years. DEIR 1, 3-11, 3-14, 42-18
(?Agricultural productivity of the project study areas could be reduced as a result of the projects,
even a?er ?nal restoration of individual site components" (emphasis added?; EIR 111-255.

The FEIR erroneously claims that ?with mitigation measures proposed in other resource
sections (cg. air quality, noise, etc.) project-related activities would not adversely affect adjacent
agricultural operations," that ?the projects would not develop infrastructure that would attract or
encourage new development of adjacent farmlands," and that the Project's off-site impacts would
be ?rrther mitigated because ?the provisions of the Imperial County Right-to-Farm Ordinance
(No. 1031). . . would continue to be enforced." FEIR The assertion is refuted
by the record.

First, the FEIR is wrong to imply that continued enforcement of the County's Right-to-
Fann Ordinance1 would reduce the Project's impacts on adjacent farmland. The primary effect
of the Right-to-F arm Ordinance is to protect agricultural operators from nuisance claims against
them, not to protect them from nuisances created on adjacent parcels that interfere with their
operations. Exhibit 1 at 3-1 to 3-2.

Second, the FEIR erroneously dismisses the Project?s impacts to aerial spraying
operations on adjacent farmland. It asserts that the ?potential restriction . . . over spraying would
be no different than being surrounded by organic farms." FEIR But that does not mean
there is no impact, just that the impacts might be similar in the two circumstances. Furthermore,
the EIR fails to recognize an essential difference between adjacent organic farmland, on the one
hand, and adjacent industrial-scale electrical generation and transmission facilities, on the other.
In contrast to farmland, the Project - like most industrial-scale solar energy projects requires
tall and electri?ed structures that cause severe glare and are extremely hazardous to low-flying
planes. FEIR 4.8-18 to 4.8-19 (stating that there are or will soon be many tall structures in the
Project area associated with other ?nearby solar farms?).

The FEIR fails to demonstrate that those structures present an insigni?cant risk to low-
?ying planes and their pilots. It claims that there would be no signi?cant impact because ?aerial
application Operations would be discontinued over the project sites and lessened in the project
vicinity,? but that does not reduce the dif?culty and hazard to the crop dusters who will continue
to spray adjacent agricultural land. EIR . Furthermore, it is inapposite that the Airport
Land Use Commission determined that the Project ?is consistent with the Airport Land Use
Compatibility Plan Id. Not only does the ALUCP not include the private Johnson
Brothers airstrip from which Frontier Agricultural Services operates, the Commission does not
even have jurisdiction over non-?public use Public Utilities Code 21670(a)(l)
(quote); ALUCP (Amended 1996) at 1-1 to 1-2.

1 Imperial County Right to Farm Ordinance No. 1031 (from Division 2, Title 6 of the Codi?ed
Ordinances of the County of Imperial), attached hereto as Exhibit l.

 



Ms. Patricia Valenzuela
January 13, 2015
Page 7

Third, while the FEIR concludes that the ?projects would not develop infrastructure that
would attract or encourage new development of adjacent farmlands,? it ignores the fact that the
continued expansion of solar electrical generation and transmission facilities in the Project area
greatly decreases the desirability and increases the dif?culty of farming in the area. EIR 
250. That is why local farmers like Joe Tagg, Danny Robinson and Michael Abatti oppose the
Project. The more crowded with industrial-scale energy projects an area becomes, the more
likely the adjacent fanners will be forced to stop farming and either sell or stop leasing their land.
This trend has been made worse by the County?s apparent decision to direct solar development to
the Project?s environs, just west of Calexico.

Fourth, the FEIR asserts that rather than reduce employment, income, and County
revenue, the Project would have ?an overall economic, employment and ?scal bene?t as
compared to the existing agricultural use of the project sites," based on an Economic Impact
Analysis the Project provided as Appendix to the DEIR. Ill-251. But the F513 fails to
respond to the failures and limitations of the Analysis that Backcountry identi?ed in its DEIR
comments. For example, the Analysis fails to account for the likely (and commonsense) result
that as the utility scale electrical generation and transmission projects convert more and more
agricultural land to non-agriculttual uses, more and more agriculture-serving businesses will be
forced to close. And as the number of agriculture-serving businesses in the County declines,
more and more farmers will ?nd it uneconomical or impractical to keep farming, and will be
impelled to sell, lease or use their lands for non?agriculture purposes.

Fifth, as the DEIR admits, if not properly grounded the Project could cause ground
?potential rise,? and associated ?hazardous voltage, many hundreds of yards away from the
grounding electrode location,? including on the land farmed by Mr. Tagg. DEIR 3-21. The FEIR
responds that ?[w]ith the implementation of standard engineering practices as part of the
grounding installation, this impact is considered less than signi?cant.? FEIR But the
fails to Specify any of the ?standard engineering practices" it asserts will be used. It
provides no evidence supporting its claim of minimal impacts.

In sum, the responses to Backcountry?s comments fail to refute Backcountry?s
showing that the Project is forbidden by the General Plan.

11. THE PROPOSED SOLAR ENERGY GENERATION AND TRANSMISSION
USES ON THE IRIS SOLAR FARM SITE ARE FORBIDDEN BY THE
IMPERIAL COUNTY GENERAL PLAN AGRICULTURAL ELEMENT.

Objective 2.1 of the County General Plan Agricultural Element mandates that the County
?not allow the placement of new non-agricultural land uses such that agricultural ?elds or parcels
become isolated or more difficult to economically and conveniently farm.? Imperial County
General Plan, Agricultural Element (Revised 1996), page 30 (emphasis added); FEIR 4.2-7
(same).

 

(can

Ms. Patricia Valenzuela
January 13, 2015
Page 8

As Backcountry discussed in its DEIR comments, because Mr. Tagg farms the 320 acres
that border the Iris Solar Farm site to the south, if the Iris Solar Farm is constructed, it would
completely isolate Mr. Tagg?s farming operation. The land he farms would be surrounded on all

four sides by industrial-scale solar energy generation projects. And as a result, it would be much
?more dif?cult [for Mr. Tag] to economically and conveniently farm? for the many reasons
discussed above and in Backcountry's DEIR comments. Imperial County General Plan,
Agricultural Element (Revised 1996), page 30. Thus, approval of the his Solar Farm would
violate the General Plan Agricultural Element.

The FEIR responds that, for the same reasons discussed above in Section I, there is ?no
basis as to why agricultural usage on adjacent properties would become infeasible.? FEIR 
252. The FELR is wrong for two reasons.

First, the FEIR mistakes the applicable standard. The Agricultural Element?s prohibition
on non-agricultural uses does not apply only where adjacent agricultural operations become
iryf?easible. Instead, it prohibits ?the placement of new non-agricultural land uses such that
agricultural ?elds or parcels become isolated or more difficult to economically and conveniently
farm.? Imperial County General Plan, Agricultural Element (Revised 1996), page 30 (emphasis
added). That is exactly the impact here.

Second, the FEIR is wrong that the Project would not violate the Agricultural Element. It
is undisputed that approval and construction of the Iris Solar Farm would ?isolate? Mr. Tagg?s
land by surrounding it on all four sides with industrial-scale solar energy projects, which is
suf?cient evidence by itself that the Project would violate the Agricultural Element.
Furthermore, for the reasons discussed in Section I, the FEIR is wrong that the Project would not
make farming on adjacent lands like Mr. Tagg?s ?more dif?cult.?

THE PROPOSED PROJECT VIOLATES THE WILLIAMSON ACT.

The proposed cancellation of the Williamson Act contracts on 662.15 acres ofhigh-
quality farmland is neither ?consistent with the purposes of [the Act]? nor ?in the public
interest.? Government Code 51282(a)( 1 H2) (quote); FEIR (acreage of lands for which
Project would require cancellation of Williamson Act contracts reduced to 662.15 acres from the
683.9 acres estimated in the DEIR). The FEIR asserts that the cancellation would be consistent
with the Williamson Act because the Project is consistent with the County?s General Plan. FEIR
HI-252. But as discussed above in Sections 1 and II, the Project is inconsistent with both the
Land Use Element and the Agricultural Element of the General Plan, and thus inconsistent with
the purposes of the Williamson Act. Government Code 51282(b)(3).

 

 

(roam

Ms. Patricia Valenzuela
January 13, 2015
Page 9

IV. THE EIR MUST CONTAIN A COMPLETE AND ACCURATE PROJECT
DESCRIPTION, AND A ROBUST ANALYSIS OF PROJECT ALTERNATIVES
AND IMPACTS.

Despite the fact that the proposed Project?s industrial-scale electrical generation and
transmission uses are prohibited by the County General Plan, the County has developed an FEIR
in preparation for considering the Project for approval. While Backcountry maintains that the
County may not approve the Project under the current General Plan, it nonetheless offers the
following comments on the FEIR and any subsequent environmental review of the Project.

A. The FEIR Fails to Provide a Complete and Accurate Project Description.

A CEQA project is ?the whole of an action, which has the potential for resulting in either
a direct physical change in the environment or a reasonably foreseeable indirect physical change
in the environment." CEQA Guidelines ?15378. ?The term ?project? refers to the activity which
is being approved and which may be subject to several discretionary approvals by governmental
agencies. The term ?project? does not mean each separate governmental approval.? CEQA
Guidelines 15378 The County describes each of the four Conditional Use Permit 
application sites as a separate project, but under CEQA, ?project? encompasses all related actions
and approvals, including the four CUP sites and the associated transmission line. FEIR 111-253.

?An accurate, stable and finite project description is the sine qua non of an informative
and legally suf?cient County oflnyo v. it): of Las AngeIes (1977) 71 Cal.App.3d 185,
193. The FEIR does not satisfy this essential CEQA requirement because it fails to accurately
describe the Project?s characteristics, as required by CEQA Guidelines section 15124.

The County claims that each of the four sites addressed in the EIR ?could potentially be
developed with differing technologies based on market conditions at the time of construction."
FEIR [11?253. Yet the impacts of concentrated photovoltaic and photovoltaic 
systems differ, as do the impacts of tracker mounted and ?xed tilt systems. Further the FEIR
fails to specify whether the Project includes four operations and maintenance buildings, as it
states vaguely that ?there may be cases? when operations and maintenance buildings could be
shared between locations. See EIR FEIR 3-9. Thus, the Project description is
not ?accurate, stable [or] ?nite."

The County also claims that the Project ?objective of providing up to 360 MW of power
re?ects the County?s mission to meet its statutory and regulatory goal[s]" of greenhouse gas
reduction, and renewable power generation. EIR But the FEIR does not explain
whether would use the electricity generated by this Project, or why the Project is
necessary to meet California?s renewable energy goals. Id. This is insuf?cient for informed
decisionmaking.

 

 

Ms. Patricia Valenzuela
January 13, 2015
Page 10

B. The FEIR Fails to Adequately Analyze a Reasonable Range of Alternatives.

To comply with CEQA, agencies must consider a ?reasonable range" of altematives.
CEQA Guidelines Village Laguna ofLagrma Beach, Inc. v. Board of Super-Visors
(?Village Lagima?) (1982) 134 Cal.App.3d 1022, 1028. An agency may not approve a Project
where there are ?feasible alternatives . . . available which would substantially lessen the
signi?cant environmental effects" of that Project. Public Resources Code 21002. Thus, a
reasonable range of alternatives would include alternatives that lessen these signi?cant effects.

The County claims that its discussion of the No Project alternative satis?es any need to
study a non-solar alternative. However, as the County is aware, the No Project
alternative would not satisfy the Project objectives, whereas a non-solar energy generation
alternative has the potential to do so. Thus County?s omission of such study improperly curtailed
its alternatives discussion. CEQA Guidelines Village Lag-(ma, 134 Cal.App.3d at
1028.

In addition, the County continues to downplay the signi?cant environmental advantages
of Alternative 6, the distributed generation alternative. The County states that it has not rejected
Alternative 6 (FEIR but the County?s presentation of this alternative continues to ignore
the realities of distributed generation. FEIR [11-254 to 111-255. As the County admits, the
distributed generation alternative would be built ?within existing developed areas, typically on
the rooftops of commercial and industrial facilities." FEIR 0.1-28 (emphasis added), see also
8-20. Thus, the potential impacts of this alternative would occur within a previously
developed area, thereby reducing or avoiding most harmful effects. Yet the County claims that
distributed generation would required ?interconnecting utility infrastructure . . . that could result
in similar impacts to burrowing owl and local water crossings.? FEIR 111-2 55.

This claim is ?at wrong. It ignores the principal attribute and purpose of distributed
generation, which is to generate power close to demand, using the existing in?astrucmre to do
so.3 Based on this false premise, the County wrongly claims that Alternative 6 ?would result in
greater impacts related to aesthetics, air quality, biological resources, cultural resources, land use
and planning, noise, and utilities.? FEIR 8-21. While the County claims that Alternative 6
?would take many, many years? to implement, the same is true for all forms of renewable energy.
Alternative 6 is environmentally and economically preferable to remote, utility-scale renewable

3 Backcountry?s DEIR comments made clear these advantages. See e.g. FEIR (former
California Public Utilities Commission Commissioner John Bohn states ?[u]nlike
other generation sources, [distributed generation] projects can get built quickly and without the
need for expensive new transmission lines. And . . . these projects are extremely benign from an
environmental standpoint, with neither land use, water, or air emission impacts?) CPUC, 
Approves Edison Solar Roof Program,? Press Release, June 18, 2009, available at:
releasel I O2580.htm.

 

 

Ms. Patricia Valenzuela
January 13, 2015
Page 11

energy generation facilities like the Iris Cluster Solar Project. The County?s unsupported claims
denigrating Alternative 6 prevent the public and decisionmalcers from understanding its bene?ts
in relation to the Project, in violation of CEQA. Public Resources Code ?21002; CEQA
Guidelines Village Laguno, 134 Cal.App.3d at 1028; Vineyard Citizens for
Responsible Growth, Inc. v. City ofRancho Cardova (?Vineyard") {2007) 40 Cal.4th 412, 428;
Berkeley Keep Jets Over the Boy v. Board of Port Commissioners (?Berkeley Keep Jets?) (2001)
91 Ca1.App.4th 1344, 1355-1356.

C. The FEIR Must Analyze the Project?s Signi?cant Agricultural Impacts.

As discussed above, the Project would have a signi?cant impact on agricultural
production by terminating and preventing all agricultural use of the subject lands for up to 40
years, and potentially inde?nitely. ELR 3-11, 3-14, 42-12, 4.10-12, Yet the FEIR
ignores or mistakenly dismisses many of these impacts, and the County?s response to comments
fails to remedy these inadequacies. FEIR 111-255. The FEIR ignores the General Plan Land Use
Element?s use standards prohibiting the proposed utility-scale electrical generation and
transmission uses on lands designated as ?Agriculture.? FEIR 4.10-11. It also
erroneously concludes that the Project is consistent with Objective of the General Plan
Agricultural Element. FEIR 4.2-7. These errors and omissions violate CEQA, which requires a
thorough General Plan consistency analysis. Where, as here, general plan requirements are
adopted to protect environmental quality, departure from those general plan standards constitutes
evidence of a signi?cant environmental impact. Govemor?s Of?ce of Planning and Research,
CEQA Technical Advice Series, ?Thresholds of Significance: Criteria for Defining
Environmental Signi?cance,? September 1994.

All of the County?s purported excuses for this inconsistency fail. FEIR to 111-250,
For example, the ?project-related impact? of ?tenninat[ing] and prevent[ing] agricultural
uses on the project sites" would not ?be reduced to a less than signi?cant level? through
mitigation measures. FEIR 111-114 (Department of Conservation statement that ?loss of
agricultural land (even temporary) represents a reduction in the State?s agricultural land
resources? (emphasis added?. The FEIR also wrongly claims that the Land Use Element ?does
not [actually] restrict or otherwise forbid other [than agricultural] uses.? FEIR D1-249. To the
contrary, the Land Use Element states that "[njo use should be permitted that would have a
signi?cant adverse e?ect on agricultural production.? Imperial County General Plan, Land Use
Element (Revised 2008), page 48 (emphasis added). Similarly, the FEIR mistakenly asserts that
?conversion of agricultural uses is allowed? by the Land Use Element ?in cases ?where a clear
long term economic bene?t to the County can be demonstrated through the planning and
environmental review process.m FEIR [El-249 (citation omitted, but quoting Land Use Element
(Revised 2008), page 48). The quoted language only applies to amendments to the General Plan.
No such amendment is involved here. The failure to adequately disclose the Project?s
inconsistency with the County General Plan violates CEQA. The Pocket Protectors v. City of
Sacramento (2004) 124 Cal.App.4th 903, 930.

 

(folds

 

Ms. Patricia Valenzuela
January 13, 2015
Page 12

Furthermore, the EIR relies on ?agricultural restoration plans prepared for each of the
project sites" to support its erroneous conclusion that the ?net reduction in [Prime arrnland and
Farmland of Statewide Importance] within the project study areas would be? reduced ?to a less
than signi?cant" impact. FEIR 4.2-13. But the County manor guarantee this condition will ever
be met. Indeed, the County cannot prohibit conditional use permit applications for additional
solar projects, thus cvisccrating the proposed restoration plan requirement. The County?s
assertion that it is not required to analyze these impacts because any future action will be subject
to CEQA is inconsistent with the County's description of the Project as the ?40-year CUP
followed by post-project restoration." FEIR The County?s bare assumption that the
Project site will be restored without any supporting facts undermines demand for
iry'armed decisionmaking based on facts. Guidelines 15384 (substantial evidence does not
include ?speculation" devoid of factual support).

The FEIR also fails to analyze the many ways in which the Project would impede
agricultural operations on farmland surrounding the Project sites, such as those discussed above.
Instead, the FEIR erroneously concludes that ?the operation of the solar generating facilities is
not expected to inhibit or adversely affect adjacent agricultural operations through the placement
of sensitive lands uses, generation of excessive dust or shading, or place [sic] additional
development pressures on adjacent areas.? FEIR 4.2-16 (quote), to 4.2-18. Among the
many serious impacts is an increase in temperature and a reduction in humidity, which will
necessitate additional irrigation while likely reducing efficiency and crop productivity.
Furthermore, the Project will impede crop dusting on surrounding farmland, particularly where
other existing or planned electrical generation facilities abut the land on other sides. The FEIR
concludes that the ?projects would not develop infrastructure that would attract or encourage new
development of adjacent farmlands," but ignores the fact that the continued expansion of solar
electrical generation and transmission facilities in the Project area greatly decrease the
desirability and increase the dif?culty of farming in the area. EIR 111-250. The more crowded
with industrial-scale energy projects an area becomes, the more likely the adjacent farmers will
be forced to stop farming and either sell or stop leasing their land.

Similarly, the analysis of the Project?s impacts countywide due to the
cumulatively signi?cant conversion of fertile farmland to non-agricultural uses fails to consider
the possibility that the land will not be restored to agricultural use after 40 years, as well as the
well-documented impact that this conversion has on surrounding farm ing businesses. FEIR 
255. As these utility-scale energy projects convert more and more agricultural land to non-
agricultural uses, more and more agriculture-serving businesses will be forced to close, due to
both declining revenues and logistical problems. And as the quantity and quality of agriculture-
serving businesses decrease in the County, more and more farmers will ?nd it uneconomical or
impractical to keep farming and be forced to sell, lease or use their lands for non-agriculture
purposes. The FEIR violates CEQA by ignoring this ?spiral of death" leading to ever more
farmland conversion to industrial uses.

 

tum

Ms. Patricia Valenzuela
January 13, 2015
Page 13

The FEIR also fails to remedy the DEIR's inadequate analysis of the Project?s impacts to
agricultural spraying operations. FEIR [11-251. The Project like most industrial-scale solar
energy projects - requires tall and electri?ed structures and solar panels that produce glint and
glare that are extremely hazardous to low-?ying planes. FEIR 4.8-18 to 4.8-19. The FEIR fails
to demonstrate that those structures present an insigni?cant risk to low-?ying planes and their
pilots. It claims that there would be no signi?cant impact because ?aerial application operations
would be discontinued over the project sites and lessened in the project vicinity,? but that does
not reduce the dif?culty and hazard to the crop dusters who will continue to spray adjacent
agricultural land. FEIR Therefore, the FEIR lacks the requisite "substantial evidence" to
support its conclusion that the Project would not produce glare4 or other hazards to planes and
pilots. Viriqzard, 40 Cal.4th at 426; Laure! Heights Improvement Association v. Ragents of the
ofCaIifomr?o (1988) 47 Cal.3d 376, 409 n. 12.

Lastly, the FEIR's conclusion that the conversion of 662.15 acres of high-quality
farmland under Williamson Act Contract presents no signi?cant impact because the ?Williamson
Act Cancellation process [will be completed] in accordance with Government Code Section
51232(a)? and because the applicant will restore the Project sites to agricultural use after the
conditional use permits expire is not supported by the facts. 42-16, 111-252. As discussed
above, the proposed cancellation of the Williamson Act contracts is not ?consistent with the
applicable provisions of the . . . county general plan.? Government Code 51282(b)(3). As a
result, and because the bene?ts of cancellation do not ?outweigh the objectives of [the
Williamson Act]," any Williamson Act contract cancellation as part of the Project would violate
the Act and constitute a signi?cant impact under CEQA. Id. 51232(c).

D. The FEIR Must Analyze the Project?s Impacts on the Greater Sandhill
Crane, the Burrowing Owl and Other Listed, Rare and Important Species.

The County?s attempt to minimize Backcountry?s concerns about the Project?s impacts on
biological resources also fails. FEIR The County simply repeats the exact information
from the DEIR that Backcountry objected to in its DEIR comments. FEIR 111-100 to 
However, the County?s restatement of the exact same information does not remedy the
inadequacies contained therein; rather, it highlights those failuress

Glint and glare from a utility-scale solare energy generation facility in southern Imperial County
may have caused or contributed to the June 4, 2014 military jet crash in the City of Imperial,
which severely damaged at least three homes and hospitalized the pilot. Infoscapecom, June 9,
2014, ?Did the Glint of a Few Million Solar Panels Cause a Military Jet to Crash in Cali fomia?,?
FEIR to 

5 The response to comments also fails as a clear and intelligible document with regard to
biological resources. FEIR 111-25 6. For example, the response repeatedly conflates the terms
?assertion" and ?ascertain? which have very different meanings con?ning the reader about
the County?s position. Id.

 

 

(In?ll)

Ms. Patricia Valenzuela
January 13, 2015
Page 14

The County claims that Backcountry's objections are unfounded and instead, erroneously
asserts that Backcountry ?provides no supporting basis? for its concerns. FEIR Wrong.
It is the County, not Backcountly, that fails to support its conclusions. Id. The FEIR provides a
single paragraph recounting the burrowing owls observed in the area in response to six
paragraphs identifying numerous de?ciencies in the biological surveys and the discussion of
impacts to the burrowing owl and other species. FEIR to Yet the County
completely ignores those other species in its response. FEIR [11-256. This mere restatement of
the occupied burrows identi?ed during inadequate surveys does nothing to address, let alone
remedy, Backcountry's concerns. Id.

Furthermore, the FEIR ignores all of the factual and legal citations supporting
Backcountry?s position. Id. Backcountry provided citations to CEQA, its Guidelines, and
supporting case law, as well as the California Department of Fish and Wildlife Staff Report on
Burrowing Owl Mitigation. FEIR to 111-101 to Furthermore,
Backcountry included at least seventeen citations to the DEIR itself, identifying those failures
that violated EQA. FEIR to 111-101. The County does not address these citations or
remedy those failures. Instead, it falsely claims that Backcountry?s concerns are unsupported.

The same is true for the County?s response to Backcountry?s concerns regarding 
mitigation measures intended to protect biological resources, and the potential for solar panel
glare and glint to create a pseudo?lake effect to the detriment of avian species. FEIR 111-101 to
111?256, to Again, the County erroneously claims that Backcountry does not
provide support for its concerns, and again it is the County, not Backcountry, that fails to provide
citations. The County?s one paragraph reiteration of the FEIR's failures in response to three
paragraphs of comments, factual support, and legal citations does not even acknowledge, much
less rectify, those de?ciencies. Rather, the inadequacies remain and are ?uther
addressed below.

The Project would have potentially signi?cant impacts to numerous species, including the
greater sandhill crane and burrowing owl. FEIR 4.4-6 to 4.4?10, to 4.4-18. According to
the FEIR, ?the greater sandhill crane is state listed as threatened and is also on the [Migratory
Bird Treaty Act] list of sensitive birds.? FEIR 4.4-7. Yet despite this admission of potentially
signi?cant impacts to the crane, the FEIR completely fails to analyze the Project?s impacts on the
species. FEIR 4.4-12 to 4.4-18, to 111-42, Furthermore, the construction impact to
?burrowing owl foraging habitat is considered a significant impact,? as are the indirect
construction impacts. FEIR 4.4-1 3. Operational impacts would also ?be considered a signi?cant
impact and mitigation would be required.? Id. But as discussed below, the analysis of
these threats is also inadequate. Guidelines ?15144; Vineyard, 40 Cal.4th at 428; Berkeley Keep
Jets, 91 Cal.App.4th at 1355-1356.

 

(crib

Ms. Patricia Valenzuela
January 13, 2015
Page 15

The burrowing owl surveys completed were inadequate, making any analysis based on
those surveys inadequate as well. CDFW sets forth speci?c guidelines for timing of burrowing
owl surveys, yet the County failed to follow those procedures. FEIR to FEIR
Appendix E, Biological Resources Evaluation Technical Report, p. 10. The FEIR fails to even
mention, let alone address, these inadequacies. FEIR Ill-41 to [11-42. Without adequate
surveys of the Project area the public and decisionmakers cannot accurately determine the
impacts of the Project on burrowing owls and their habitat, in violation of CEQA. CEQA
Guidelines ?15144; Vineyard, 40 Cal.4th at 428; Berkeley Keep Jets, 91 Cal.App.4th at 1355-
1356.

An EIR must avoid potentially signi?cant impacts where it is feasible to do so. Public
Resources Code? 21002; Guidelines 15121, 15125, 15126, 15126.4. But despite
con?rmation that the Project area is occupied by ?15 adult burrowing owls and one juvenile
burrowing owl,? as well as ?eight occupied burrows and six active burrows,? and construction
and operation would both result in a signi?cant impact to the species, the FEIR incorrectly
assumes that with limited mitigation this impact would be less than significant. FEIR 3.
This assumption does not follow from the facts for three reasons. First, such signi?cant impacts
to the burrowing owl direct mortality, entrapment or injury in crushed burrows, and loss of
burrows or other habitat- cannot be mitigated by avoiding burrows or evicting the owls from
their burrows through a one-way door. FEIR 4.4-13, 4.4-15 to 4.4-16. Second, a buffer of 160
feet would not be suf?cient to protect the burrowing owl, as the owls use areas within such a
buffer. FEIR 4.4-15 to 4.4-16. Third, where avoidance fails, this protected species would be
forced to leave its burrow yet the FEIR fails to analyze what effect this ?mitigation? would have
on the species. FEIR 4.4-16.

The FEIR also fails to address the dangerous ?lake" effect that the Project?s re?ective
solar panels may create, and its impacts on avian species. The ?pseudo-lake effect? occurs when
glare, glint, and re?ection from the PV solar panels appears as a large body of water to birds
flying above the facility, which can in turn entice them to dive downwards and collide with the
solar panels. FEIR to Solar projects' reflective panels often attract migratory
birds searching for water. This ?pseudo-lake effect? is suspected to be one of the main causes of
migratory bird trauma and death at the PV facility Desert Sunlight. FEIR to [11-247. Yet
here, the FEIR downplays this documented potential for glint, claiming that the panels will have
a low re?ectivity, and that the deferred formulation of an Avian and Bat Protection Plan will
eliminate this impact. FEIR 4.1-29 to 4.1-30, [[1?256. The County provides no support for this
claim and fails to describe this deferred mitigation, let alone show how it will accomplish this
goal. 1d.

The failure to provide adequate studies to understand the Project?s impacts on
critical environmental resources violates informational purpose and prevents the public
and decisionmakers from fully considering the impacts of the Project. CEQA Guidelines 
15144; Vineyard, 40 Cal.4th at 428; Berkeley Keep Jets, 91 Cal.App.4th at 1355-1356.

 

(Carib

Ms. Patricia Valenzuela
January 13, 2015
Page 16

E. The FEIR Must Analyze the Project?s Stray Voltage and Ground Potential
Rise Impacts.

The County?s FEIR fails to address the de?cient discussion of stray voltage and
ground potential rise impacts. FEIR 3-21, Despite the County?s admission that
signi?cant stray voltage impacts could occur, the FEIR continues to conclude without any
details or evidence - that a ?grounding system would be installed to permit dissipation of ground
fault currents and minimize ground potential rise." EIR 3-21. The County's response to
comments merely reiterates the de?cient statements of the DEIR, but fail to provide any
additional analysis or support. FEIR [11-256. The County?s bare conclusion is
insuf?cient to infortn the public and decisionmakers about the Project?s potential impact, or
whether the grounding system can suf?ciently render the potential impact less than signi?cant.
Laurel Heights Imp. Ass ?11 v. Regents of University of California (?Laurel Heights") (1988) 47
Cal.3d 376, 405-406; Kings County Farm Bureau v. City of Hartford (1990) 221 Cal.App.3d 692,
736.

F. The FEIR Must Analyze the Project?s Direct, Indirect and Embedded
Greenhouse Gas Emissions.

The greenhouse gas discussion has at least four distinct de?ciencies. First, the
FEIR fails to account for signi?cant sources of greenhouse gas emissions associated with the
Project. Second, the FEIR fails to respond to Backcounny?s comments on this issue. Third, the
FEIR improperly presumes that any impact is insigni?cant because the Project contributes to the
Renewables Portfolio Standard Fourth, the FEIR improperly identi?es and relies upon
measures that will not mitigate the Project?s greenhouse gas impacts, as discussed below.

First, the fails to remedy the omission of critical information regarding the
Project's greenhouse gas emission impacts. The County does not account for any emissions from
panel or supporting structure production. See FEIR FEIR 111-256 to 111-257.
Thus, these emissions are excluded from the 1,439 tonnes of carbon dioxide equivalent 
per year that the County claims will be generated during Project construction. FEIR 4.7-9.
Because the FEIR ignores the Project?s additional greenhouse gas emissions, the County?s claim
that the Project?s emissions are less than the selected threshold of signi?cance lacks support.

The County likewise fails to account for any carbon sequestration that will be lost when
converting agricultural uses to industrial solar uses. See FEIR FEIR to 111-257.
This omission is an additional factor that undermines the conclusion that the Project?s
greenhouse gas emission impacts would be less than signi?cant.

Second, the FEIR does not respond to Backcountry?s concerns regarding the County?s
omissions of this data. FEIR [?-256 to The County does not attempt to discuss
embedded greenhouse gas emissions or carbon sequestration. The County's response to
Backcountry?s comments completely ignores the point that these impacts could be signi?cant.

 

 

l0

Ms. Patricia Valenzuela
January 13, 2015
Page 17

Id. The County?s failure to provide ?good faith, reasoned analysis? and respond to
Backcountry?s concerns in detail violates CEQA. See Pub. Res. Code 21091(d)(2)(B); CEQA
Guidelines 15088.

Third, the County asserts that the Project ?is presumed to have less than signi?cant
[greenhouse gas} impacts? because it will be generating solar energy as part of the state?s RPS.
EIR IH-256 to Ill-257. Because of this presumption, the County claims that ?no further
quanti?cation is warranted." FEIR CEQA, however, requires that the County
independently evaluate the Project?s impacts, instead of presuming a lack of impact due to the
Project?s compliance with a separate program. Californians for Alternatives to Toxic: v.
Department of and and Agriculture (2005) 136 Cal.App.4th 1, 16-17.

Finally, the FETR relies upon ?Mitigation Measures 43?15. and 4.3- lb outlined in Chapter
4.3, Air Quality of this to ?further reduc[e greenhouse gas] emissions.? FEIR 4.7-10, 4.7-
11. Yet the PEER contains no such mitigation measures. Were the County referring instead to
Mitigation Measures 4.3-2a and 43?213, however, its reliance upon them would be misplaced.
These measures are designed to address speci?c criteria pollutants, and fugitive dust, and do
nothing to reduce greenhouse gas emissions such as carbon dioxide. FEIR 43-18 to 4.3-19;
FEIR to 11-2.

V. CONCLUSION

The Project?s industrial use of lands designated ?Agriculture" is speci?cally forbidden by
the County General Plan. Therefore the County may not approve the Project. Despite this the
County has developed an FEIR for the Project. While Baekcounn'y maintains that the County
may not approve the Project under the current General Plan, it nonetheless provides the foregoing
comments on the Project?s so that these inadequacies can be remedied prior to any

potential Project approvalolker
Attorney for Backcountry Against Dumps, Donna
Tisdale, Carolyn Allen, Danny Robinson, William
Robinson, Joseph Tagg and Michael Abatti
SCV:taf

(term