• Steve Brown

Newberry CSD sues over Daggett project approval

The San Bernardino County Board of Supervisors unanimously approved the Daggett Solar Power Project on December 10, 2019, over the objections of local residents who will be impacted.
The San Bernardino County Board of Supervisors unanimously approved the Daggett Solar Power Project on December 10, 2019, over the objections of local residents who will be impacted.

When the San Bernardino County Board of Supervisors, including now removed supervisor, Dawn Rowe, voted unanimously to approve the Daggett Solar Power Project, they did so over the strenuous objections of local residents who stand to be impacted by the project. They also did so while apparently ignoring county code and state law.

Now, the Newberry Community Services District is taking them to court after two of the CSD's own board of directors, Victoria Paulsen and Jack Unger, were roundly ignored by county supervisors as they dismissed the CSD's appeal to the project's approval.

Ted Stimpfel of the Newberry Springs Community Alliance commended the CSD's court filings, and noted on the Alliance's website that as a rural desert community, Newberry Springs is often at a disadvantage when it comes to county decision-making.

"Newberry Springs has a disability by having been economically and socially marginalized and excluded from support by the county's lack of attention.

"Newberry Springs' historical river water has been stolen by up-river development and the community is continuing to be used as a dumping grounds for various undesirable elements, including solar power development which the county is discriminately forcing upon Newberry Springs and not upon the county's urban areas where the power is served.

"Disadvantaged rural areas like Newberry Springs deserve equal attention, protection, services, and the opportunities that are given the more populated urban areas.

"There are laws that can protect Newberry Springs from adverse development and dumping.  With a highly corrupt county government, it is up to the citizens to enforce those laws.

"The Newberry CSD is beginning to recognize those responsibilities.  Congratulations to it !"

Read the full story HERE.

The CSD's lawsuit claims that the Daggett Solar project "will result in massive amounts of sand polluting the air and causing health risks in a disadvantaged community; it will contaminate the area's primary source of drinking water; it will generate significant, permanent, and omnipresent noise pollution; and it will produce significant visual and aesthetic impairments. Yet none of these concerns have been thus far adequately or properly addressed."

The lawsuit also notes that in approving the project, the county violated CEQA, the California Environmental Quality Act, the county's General Plan, and the San Bernardino County Development Code, among other laws. The Board of Supervisors were made aware of these violations of laws prior to their approval of the project, but chose to not seek any further information on the violations, nor on remedies to the violations. In plain speech, it appears the Board of Supervisors believe they do not need to follow laws in their decision making.

The fact an attorney could present the Board of Supervisors with a list of likely violations of CEQA and other laws and be ignored reveals the extent to which public input plays little to no role in their decision making, despite most members of the public commenting are taxpayers and constituents from San Bernardino County. This adds to a flawed Environmental Impact Report process where, in this case, the County summarily dismissed any and all concerns raised, often claiming inadequate evidence was presented to substantiate the concern while offering no evidence to substantiate the assertion the claim had no validity. Add to that a

The Newberry CSD is joined by Friends of Newberry Springs as petitioner and plaintiff in the lawsuit. The County, Board of Supervisors, Land Use Services Department, and others are listed as defendants and respondents, while the Daggett Solar Power Facility 1, LLC is listed as a real party in interest.

The lawsuit notes CEQA "disallows approval of a project that fails to comply with other laws," and then explains how the approval of the Daggett project violates other laws, including the San Bernardino County Development Code (Chapter 84.29 Renewable Energy Generation Facilities). The Development Code requires that prior to the County approving a commercial solar energy facility, it must be either sufficiently separated from existing communities and existing or developing rural residential areas so as to avoid adverse effects, or of a sufficiently small size with adequate setbacks and low profile, screen from public view, so as to not adversely affect the desirability and future development of communities, neighborhoods, and rural residential use.

The Daggett project, as approved by the Board of Supervisors, clearly violates the Development Code under those requirements, but there are additional requirements that are also violated, pertaining to visual impacts, natural features, habitat and wildlife linkages, impacts to wildlands, and the feasibility of financing future infrastructure development in the area.

An additional blatant violation of the Development Code is the requirement for maintaining and promoting native vegetation. The Daggett project will destroy more than 70 creosote circles that are up to 4,200 years old. Though that information was provided in advance to the Board of Supervisors by Mojave Watch and others, it was ignored during the approval process, along with all scientific input. It also could negatively impact nearby wildlife areas, including Afton Canyon's Area of Critical Environmental Concern. Those potential impacts were also ignored during the proceedings.

The Development Code addressed projects sited within two miles of the boundaries of any active military base and requires that projects will not substantially impair the mission of the facility. In the case of the Daggett project, the project will surround the Barstow-Daggett Airport on three sides. Nearby Fort Irwin uses the airport for its rotary and fixed-wing aircraft and Army aviation personnel noted to Mojave Watch that they were concerned flight and maintenance operations could be negatively impacted by the project in a number of ways ranging from heat island effect to increased blowing dust and sand, as well as glint and glare. In the County's EIR response to concerns about the heat island effect, the sole study on the effect that included an actual desert facility (published in 2016), was omitted.

The lawsuit includes numerous violations of the San Bernardino County General Plan that were incurred by approval of the project in its present form, and violations of the Land Use Element of that plan on topics ranging from air quality (there are no air quality monitors in place currently or planned for the site to measure the project's impact), protection for rural communities, and airport operations.

The lawsuit's causes of action include the claim that the County violated CEQA by certifying a Final EIR that fails to adequately analyze and mitigate for the Project's numerous environmental impacts; the County's failure to substantially support factual findings and overriding considerations as required under CEQA; violations of the Subdivision Map Act; the failure of the County to comply with the goals and policies of state planning and zoning law and the County's own General Plan; and, violations of San Bernardino County Development Code pertaining to the siting of Renewable Energy Generation Facilities.

The lawsuit seeks a writ of mandate commanding the County to vacate and withdraw the certification of the EIR and project approval, and to require compliance with all laws and codes. It asks for a temporary stay and injunctions to prevent the project from going forward until compliance with all applicable laws and codes are met, and a declaratory judgment that the County violated its duty pursuant to the state and county laws and codes.

With so many of the violations committed by Land Use Services and the Board of Supervisors being obvious, Mojave Watch will be following this case closely to investigate whether the fate of rural county residents, and the rule of law, have any value, or whether county government can, at will, ignore state and county laws to further any agenda they deem fit.

Read the court documents HERE.

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