BILL ANALYSIS AB 45 SENATE COMMITTEE ON ENVIRONMENTAL QUALITY Senator S. Joseph Simitian, Chairman 2009-2010 Regular Session BILL NO: AB 45 AUTHOR: Blakeslee AMENDED: June 23, 2009 FISCAL: Yes HEARING DATE: July 6, 2009 URGENCY: No CONSULTANT: Randy Pestor SUBJECT : WIND ENERGY SYSTEMS SUMMARY : Existing law : 1) Under the California Constitution, authorizes a city or county to "make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general law." 2) Under Planning and Zoning Law, requires cities and counties to adopt a general plan that includes seven mandated elements (land use, circulation, housing, conservation, open space, noise, safety), and creates special requirements for housing elements. It also requires cities and counties to adopt zoning ordinances regulating, for example, the use of buildings, structures, and land. 3) Under the California Environmental Quality Act (CEQA), requires lead agencies with the principal responsibility for carrying out or approving a proposed discretionary project to prepare a negative declaration, mitigated declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA guidelines). 4) Under the Permit Streamlining Act (PSA), requires a lead agency for a development project to approve or disapprove a project within specified time periods (for example, 180 days from the date the lead agency certifies an EIR (except 90 days for a very low or low income housing project under certain conditions), 60 days from the date of adopting a AB 45 Page 2 negative declaration or determining that a project is exempt from CEQA). This bill , under Planning and Zoning Law, enacts wind energy siting requirements that: 1) Authorize a local agency to establish a process for issuing conditional use permits for small wind energy systems that must be subject to: a) review within Permit Streamlining Act timelines, b) fees in accordance with certain provisions of the Mitigation Fee Act, and c) approval through a ministerial permit if an application for a system is submitted between July 1, 2010, and the date of the local agency's adoption of an ordinance meeting certain requirements (#2 below). Ordinances adopted prior to July 1, 2010, are exempt from the requirements of this bill. 2) Authorize a local agency to provide for installation of small wind energy systems outside an urbanized area subject to conditions relating to notice, tower height, setback, view protection, aesthetics, aviation, and design safety requirements. The ordinance cannot require conditions on notice, tower height, setback, noise levels, visual effects, turban approval, tower drawings, and engineering analysis, or line drawings that are more restrictive than specified conditions (e.g., 80 feet tower height on 1 to 5 acre parcel and 100 feet on parcels over 5 acres, setbacks not farther from property line than system height, 60 decibels noise level limit or maximum noise level in general plan, not substantially obstruct views, certain aviation requirements, signage, certain locations). 3) Authorize a local agency to provide newspaper notice "due to circumstances specific to the proposed installation" and authorize a condition that a small wind energy system must be removed if it remains inoperable for 12 consecutive months. 4) Requires the State Energy Resources Conservation and Development Commission (CEC) to submit certain information to the Assembly and Senate Local Government committees by January 1, 2016, regarding: a) number of ordinances adopted on or after July 1, 2010, by local agencies; b) number of applications received and approved during that AB 45 Page 3 period; c) tower heights, system heights, parcel sizes, and generating capacities approved during that period; and d) CEC recommendations for continuation, modification, or termination of the requirements in this bill. 5) Provides definitions for certain terms and contains related legislative intent. 6) Sunsets January 1, 2017. COMMENTS : 1) Purpose of Bill . According to the author, "Small wind turbines are an excellent customer-scale renewable energy technology that can reduce greenhouse gas and criteria pollutant emissions, reduce peak electricity demand, and save customers money on their monthly utility bills. As California continues to advance its renewable energy goals, it is imperative that state policies not only support the market penetration and viability of promising technologies, but that they also support local agencies in the permitting and installation of renewable energy systems." The author notes that AB 1207 (Longville) Chapter 562, Statutes of 2001, set requirements for local government approval of small wind energy systems. AB 1207 became inoperative July 1, 2005, and sunset January 1, 2006. According to the author, "Since then, counties have had to adopt their own permitting regulations. Some counties have implemented ordinances similar to AB 1207, some have adopted regulations that are more restrictive and more expensive, while others no longer have an ordinance for small wind systems." 2) Brief background on CEQA . CEQA provides a process for evaluating the environmental effects of a project, and includes statutory exemptions, as well as categorical exemptions in the CEQA guidelines. If a project is not exempt from CEQA, an initial study is prepared to determine whether a project may have a significant effect on the environment. If the initial study shows that there would not be a significant effect on the environment, the lead agency must prepare a negative declaration. If the initial study shows that the project may have a significant effect AB 45 Page 4 on the environment, the lead agency must prepare an EIR. Generally, an EIR must accurately describe the proposed project, identify and analyze each significant environmental impact expected to result from the proposed project, identify mitigation measures to reduce those impacts to the extent feasible, and evaluate a range of reasonable alternatives to the proposed project. Prior to approving any project that has received environmental review, an agency must make certain findings. If mitigation measures are required or incorporated into a project, the agency must adopt a reporting or monitoring program to ensure compliance with those measures. If a mitigation measure would cause one or more significant effects in addition to those that would be caused by the proposed project, the effects of the mitigation measure must be discussed but in less detail than the significant effects of the proposed project. 3) A source for bill . AB 45 sets various limitations that can be placed on conditions, and is based on a March 2009 report by the California Wind Energy Collaborative ("Small wind permitting challenges - findings from a survey of small wind installers"). According to the report "Inconsistency in the regulations and time to process can be partially addressed by developing a model ordinance that counties can refer to as they develop or change their ordinances. These issues and others can be fully addressed by adopting a statewide standard. Statewide standards should streamline the process solving many of the other issues and reduce some of the fees." Should state law be changed based on a survey relying on only nine companies that installed 64 small wind energy systems in 2008? If so, would it be more appropriate for a state agency to develop a model ordinance, and provide an opportunity for a local government to adopt a model ordinance? 4) Potential for conflicts that cannot be resolved by local governments . Because AB 45 prevents conditions that are more restrictive than those specified under the bill if a local government does not currently have a small wind AB 45 Page 5 energy system ordinance, there may be circumstances where local governments will be unable to avoid conflicts. For example, AB 45 requires approval of 80 foot wind system towers on parcels of 1 to 5 acres - and taller towers on larger parcels. In a typical downtown like Sacramento, one city block represents 2.35 acres. Therefore, the height of a tower under AB 45 would be about the height of a 7 or 8 floor building on a parcel size less than city block. Under AB 45, noise cannot exceed 60 decibels or the general plan maximum noise level for the zoning classification - which is equivalent to conversation or a dishwasher, while moderate rainfall is 50 decibels and busy traffic or a vacuum cleaner is about 70 decibels. Also, the maximum allowed noise level for a zoning classification may not be something one prefers to experience on an ongoing basis. 5) Need to ensure compliance with CEQA for small wind energy systems . AB 45 seeks to limit application of CEQA by: a) requiring approval through a ministerial permit if an application for a wind energy system is submitted between July 1, 2010, and the date of the local agency's adoption of an ordinance meeting the bill's requirements; and b) prohibiting small wind energy system ordinances from requiring conditions that are more restrictive than the bill's conditions. Although AB 45 exempts ordinances adopted prior to July 1, 2010, from the limitations in this bill, six months is unlikely to provide sufficient time for a local government to adopt an ordinance and comply with CEQA for that ordinance. To ensure compliance with CEQA for small wind energy systems, amendments are needed to: a) provide the necessary time for local governments to adopt ordinances, and to comply with CEQA for those ordinances, in order to be exempt from the bill's requirements (i.e., January 1, 2011, rather than July 1, 2010); b) clarify the status of permits submitted between that date and the adoption of an ordinance required under this bill's restrictions (e.g., something other than "ministerial", requirements that apply to those permits); c) clarify those matters that are not subject to conditions AB 45 Page 6 as described under 65896(b); d) clarify that the size of a sign attached to a system may be as approved by the local agency but the sign must be within 10 feet of the ground; e) clarify that this bill is not a limitation on mitigation requirements or compliance with other provisions of law; and f) include various technical and clarifying amendments. There are also concerns about allowing 80 foot tower heights on parcels of 1 to 5 acres. SOURCE : Assemblymember Blakeslee SUPPORT : None on file OPPOSITION : None on file