BILL NUMBER: SBX8 34 CHAPTERED
BILL TEXT
CHAPTER 9
FILED WITH SECRETARY OF STATE MARCH 22, 2010
APPROVED BY GOVERNOR MARCH 22, 2010
PASSED THE SENATE MARCH 11, 2010
PASSED THE ASSEMBLY MARCH 11, 2010
AMENDED IN ASSEMBLY MARCH 11, 2010
AMENDED IN ASSEMBLY MARCH 8, 2010
AMENDED IN ASSEMBLY MARCH 1, 2010
AMENDED IN SENATE FEBRUARY 18, 2010
AMENDED IN SENATE FEBRUARY 17, 2010
INTRODUCED BY Senator Padilla
(Principal coauthor: Assembly Member Blumenfield)
(Coauthors: Assembly Members Salas and Skinner)
FEBRUARY 5, 2010
An act to add Sections 2069, 2099, and 2099.5 to the Fish and Game
Code, to amend Section 11430.70 of the Government Code, and to add
Section 25524 to the Public Resources Code, relating to energy,
making an appropriation therefor, and declaring the urgency thereof,
to take effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 34, Padilla. Energy: solar thermal and photovoltaic
powerplants: siting: California Endangered Species Act: mitigation
measures.
(1) Existing law vests exclusive power to certify a thermal
powerplant with the State Energy Resources Conservation and
Development Commission (Energy Commission). Existing law requires a
person to obtain a certification from the commission prior to
commencing the construction of a thermal powerplant, as defined.
This bill would require the Energy Commission to establish a
process for certain applicants for certification of a solar thermal
powerplant that allows the applicant to elect to pay additional fees
to be used by the Energy Commission to contract with 3rd parties to
assist Energy Commission staff in performing the analysis otherwise
performed by staff in determining whether or not to issue a
certification. The Energy Commission would retain discretion as to
when this option will be offered to qualified applicants.
(2) The California Endangered Species Act (CESA) requires the Fish
and Game Commission to establish a list of endangered species and a
list of threatened species and requires the Department of Fish and
Game to recommend, and the commission to adopt, criteria for
determining if a species is endangered or threatened. CESA states
that state agencies should not approve projects, as defined, that
would jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of habitat essential to the continued existence of the
species if there are reasonable and prudent alternatives available
consistent with conserving the species or its habitat that would
prevent jeopardy. CESA further declares that in the event specific
economic, social, or other conditions make infeasible these
alternatives, individual projects may be approved if appropriate
mitigation and enhancement measures are provided. CESA authorizes the
department to authorize the take of threatened species, endangered
species, or candidate species by permit if the take is incidental to
an otherwise lawful activity, the impacts of the authorized take are
minimized and fully mitigated, the permit is consistent with
specified regulations, and the applicant ensures adequate funding to
implement the minimization of mitigation measures and monitors
compliance with, and effectiveness of, those measures.
This bill would authorize the department, in consultation with the
Energy Commission and, to the extent practicable, the United States
Fish and Wildlife Service and United States Bureau of Land
Management, to design and implement actions to protect, restore, or
enhance the habitat of plants and wildlife that can be used to fully
mitigate the impacts of the take of endangered, threatened, or
candidate species (mitigation actions) resulting from certain solar
thermal and photovoltaic powerplants in the planning area of the
Desert Renewable Energy Conservation Plan, as defined. The bill would
establish the Renewable Energy Resources Development Fee Trust Fund
as a continuously appropriated fund in the State Treasury to serve,
and be managed, as an optional, voluntary method for developers or
owners of eligible projects, as defined, to deposit fees sufficient
to complete mitigation actions established by the department and
thereby meet their requirements pursuant to CESA or the certification
authority of the Energy Commission. The bill would loan $10,000,000
from the Renewable Resources Trust Fund to the fund, to be repaid no
later than December 31, 2012, to be used by the department to
purchase mitigation lands or conservation easements and to cover
related restoration, monitoring, and transaction costs incurred in
advance of the receipt of fees and to cover the department's
administrative costs for the program.
The bill would require the department to collect, and require the
owner or developer of an eligible project to pay, a one-time permit
application fee of $75,000. The bill would require that fees
collected by the department be deposited in the Fish and Game
Preservation Fund. The bill would require the department to utilize
the permit application fee to pay for all or a portion of the
department's cost of processing incidental take permit applications
pursuant to CESA and would appropriate $1,650,000 from the fund for
those purposes. If the permit application fee is insufficient to
complete permitting work due to the complexity of a project or
timeline delays, the bill would authorize the department to collect
an additional fee from the owner or developer to pay for its actual
costs, not to exceed an additional $75,000.
(3) Existing law, the Administrative Procedure Act, provides for
the conduct of administrative adjudication proceedings of state
agencies. Existing law generally prohibits during a pending
proceeding, communication, regarding any issue in the proceeding,
with the presiding officer from an employee or representative of the
agency without notice and opportunity for all parties to participate,
except as specified.
This bill would except from this general prohibition specified
communications relating to determinations of applications for site
certification that are before the Energy Commission and are made by
employees of another state agency for the purpose of enabling the
presiding officer to effectively manage the proceeding.
(4) Existing law generally requires the Department of Personnel
Administration to establish and adjust salary ranges for each class
of position in the state civil service subject to any constitutional
merit limits. Existing law requires the salary range to be based on
the principle that like salaries shall be paid for comparable duties
and responsibilities. Existing law prohibits the department from
making any adjustments that require expenditures in excess of
existing appropriations that may be used for salary increase
purposes.
This bill, until January 1, 2011, would approve the recruitment
and retention differentials of the Department of Personnel
Administration for specified employees in State Bargaining Units 1
and 10 employed by the Energy Commission covered by the October 29,
2009, letter from the Director of the Department of Personnel
Administration to the Chairperson of the Joint Legislative Budget
Committee.
The bill would specify that those differentials that require the
expenditure of funds would not take effect unless funds for these
provisions are specifically appropriated by the Legislature or
already exist within available appropriations. The bill would
authorize either party to reopen negotiations on all or part of the
addendum if the Legislature does not approve or fully fund any
addendum included in this measure.
(5) The California Constitution authorizes the Governor to declare
a fiscal emergency and to call the Legislature into special session
for that purpose. The Governor issued a proclamation declaring a
fiscal emergency, and calling a special session for this purpose, on
January 8, 2010.
This bill would state that it addresses the fiscal emergency
declared by the Governor by proclamation issued on January 8, 2010,
pursuant to the California Constitution.
(6) This bill would declare that it is to take effect immediately
as an urgency statute.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2069 is added to the Fish and Game Code, to
read:
2069. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Desert Renewable Energy Conservation Plan" means the
completed conservation plan in the Mojave and Colorado Desert regions
adopted pursuant to the Natural Community Conservation Planning Act
(Chapter 10 (commencing with Section 2800)), and covers the
geographical area described in Section 4 of, and depicted in Exhibit
A to, the "Draft Planning Agreement by and among California
Department of Fish and Game, California Energy Commission, United
States Bureau of Land Management, and United States Fish and Wildlife
Service for the Desert Renewable Energy Conservation Plan," document
REAT-1000-2009-034, dated October 2009.
(2) "Energy Commission" means the State Energy Resources
Conservation and Development Commission.
(b) The department, in consultation with the Energy Commission
and, to the extent practicable, the United States Fish and Wildlife
Service and the United States Bureau of Land Management, may design
and implement actions, including the purchase of land and
conservation easements, to protect, restore, or enhance the habitat
of plants and wildlife that can be used to fully mitigate the impacts
of the take of endangered species, threatened species, or candidate
species, for purposes of paragraph (2) of subdivision (b) of Section
2081 and Chapter 6 (commencing with Section 25500) of Division 15 of
the Public Resources Code, resulting from solar thermal and
photovoltaic powerplants in the Desert Renewable Energy Conservation
Plan planning area that meet each of the following requirements:
(1) Either the Energy Commission determines that the application
for certification was complete by February 1, 2010, or the local
government in which the project is located has determined the project
permit application is complete or has issued a notice of preparation
of an environmental impact statement pursuant to Division 13
(commencing with Section 21000) of the Public Resources Code by
February 1, 2010.
(2) The developer or owner of the proposed powerplant or
generation facility has applied for, and would qualify for, funding
under the federal American Recovery and Reinvestment Act of 2009
(Public Law 111-5). For purposes of this subparagraph, "funding"
means a loan guarantee made pursuant to Section 406 of the act (42
U.S.C. Sec. 16516) or a grant for specified energy property in lieu
of a tax credit provided pursuant to Section 1603 of Division B of
the act, which division is titled the American Recovery and
Reinvestment Tax Act of 2009.
(c) A mitigation action may only be used for the mitigation
purposes described in subdivision (b) if it meets one of the
following conditions:
(1) The department has implemented the mitigation action and
determined that the action has resulted in the protection,
restoration, or enhancement of the habitat of one or more species
that are proposed to be covered by the Desert Renewable Energy
Conservation Plan, and that are located in the planning area, and,
based upon that determination, can be used, for purposes of paragraph
(2) of subdivision (b) of Section 2081, to fully mitigate the
impacts of the take of the species from one or more projects
identified in subdivision (b).
(2) The mitigation action is included in an interim mitigation
strategy for projects identified in subdivision (b). An interim
mitigation strategy pursuant to this paragraph shall be developed by
the department, in consultation with the Energy Commission and, to
the extent practicable, the United States Fish and Wildlife Service
and the United States Bureau of Land Management, and shall include
all of the following:
(A) A description of specific mitigation areas and specific
actions on public or private land within the Desert Renewable Energy
Conservation Plan planning area that are to be implemented, including
a focus on habitat preservation, while also including enhancement or
restoration actions that will do all of the following:
(i) Contribute to the conservation of each candidate species,
threatened species, or endangered species for which a permit is
issued.
(ii) Adopt a regional planning perspective that provides a
foundation for, or that will complement, any conservation strategy to
be developed for the Desert Renewable Energy Conservation Plan.
(iii) Implement mitigation actions within a reasonable period of
time relative to the impact to the affected candidate species,
threatened species, or endangered species, including, where feasible,
advance mitigation. For purposes of this clause, "advance mitigation"
means mitigation implemented before, and in anticipation of, future
impacts to natural resources.
(iv) Include a description of the species that would be benefited
by each mitigation action and how it would be benefited.
(B) A cost estimate for each action, whether on public or private
land, using total cost accounting, including, as applicable, land
acquisition costs, conservation easement costs, monitoring costs,
transaction costs, restoration costs, the amount of a nonwasting
endowment account for land management or easement stewardship costs
by the department or other management entity, and administrative
costs.
(d) The interim mitigation strategy shall be based on best
available science and shall be reviewed by the Desert Renewable
Energy Conservation Plan independent science advisors. The department
shall seek and consider comments from the Desert Renewable Energy
Conservation Plan independent science advisors in the design and
location of each mitigation action implemented pursuant to this
section. If the department elects to not incorporate comments of the
independent science advisors into mitigation actions, the department
shall explain the reasons for that decision in writing.
(e) The interim mitigation strategy shall be completed by the
department no later than 60 days following the operative date of the
act adding this section.
(f) (1) Nothing in this section shall modify the requirements of
Section 2081, including the requirement to, where feasible, avoid and
minimize impacts, the requirements of Division 13 (commencing with
Section 21000) of, or the requirements of Chapter 6 (commencing with
Section 25500) of Division 15 of, the Public Resources Code, or
affect the existing authority of the department to authorize
mitigation actions to comply with this chapter.
(2) With respect to the Energy Commission, in the case of an
applicant seeking certification for a solar thermal power plant
pursuant to Chapter 6 (commencing with Section 25500) of Division 15
of the Public Resources Code, or a lead agency, as defined in Section
21067 of the Public Resources Code, in the case of an applicant
seeking approval of a photovoltaic powerplant, the sole effect of a
mitigation action described in subdivision (c), and paid for through
the deposit of fees as described in Section 2099, is to relieve an
applicant of the obligation to directly take actions which are taken
instead by the department or its contractor or designee pursuant to
subdivision (b) to meet the applicant's obligations with respect to
the powerplant's impacts to species and habitat. The mitigation
action and deposit of fees shall not relieve the applicant of any
other obligation, or the Energy Commission or the lead agency of any
of its existing requirements of Division 13 (commencing with Section
21000) of, or the requirements of Chapter 6 (commencing with Section
25500) of Division 15 of, the Public Resources Code to analyze,
avoid, minimize, or mitigate impacts to species and habitat, or make
the findings required by those statutes.
(g) The mitigation actions implemented pursuant to this section
shall be incorporated into the Desert Renewable Energy Conservation
Plan upon the finalization of the plan, to the extent the mitigation
actions are consistent with the plan's conservation strategy.
SEC. 2. Section 2099 is added to the Fish and Game Code, to read:
2099. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Eligible project" means a solar thermal powerplant or
photovoltaic powerplant meeting the requirements of paragraphs (1)
and (2) of subdivision (b) of Section 2069.
(2) "Energy Commission" means the State Energy Resources
Conservation and Development Commission.
(b) (1) The Renewable Energy Resources Development Fee Trust Fund
is hereby established in the State Treasury. The department shall
collect a fee from the owner or developer of an eligible project that
elects to use mitigation actions developed and approved by the
department pursuant to Section 2069, and all moneys received for
purposes of mitigation actions pursuant to Section 2069 shall be
deposited in the fund and shall be held in trust and be expended
solely for the purposes of, and in conformity with, that section,
applicable permit or certification requirements for eligible
projects, and any contractual agreement between the Energy Commission
or department and the owner or developer of an eligible project. The
department may contract with, or award grants to, third parties to
implement mitigation actions in conformity with Section 2069 and this
section.
(2) Upon direction by the department, the Controller shall create
any accounts or subaccounts within the fund that the department
determines are necessary or convenient to facilitate management of
the fund.
(3) The fund shall serve, and be managed, as an optional,
voluntary method for developers or owners of eligible projects to
deposit fees to complete mitigation actions meeting the conditions of
subdivision (c) of Section 2069 and for the purpose of meeting the
requirements of this chapter or the requirements of Chapter 6
(commencing with Section 25500) of Division 15 of the Public
Resources Code. Notwithstanding Section 13340 of the Government Code,
the money in the fund is hereby continuously appropriated to the
department, without regard to fiscal years, for the purposes
enumerated in this section and Section 2069. An expenditure shall not
be made from the fund except as authorized by the department.
(4) The sum of ten million dollars ($10,000,000) is hereby
transferred, as a loan, from the Renewable Resource Trust Fund to the
fund. This loan shall be repaid from the fund to the Renewable
Resource Trust Fund no later than December 31, 2012. The department
shall use these funds, pursuant to paragraph (1) of subdivision (c)
of Section 2069, to purchase mitigation lands or conservation
easements, and to cover related restoration, monitoring, and
transaction costs incurred in advance of the receipt of fees pursuant
to paragraph (5) and to cover the department's administrative costs
for the program.
(5) A developer or owner of an eligible project that elects to use
mitigation actions developed and authorized by the department
pursuant to Section 2069 shall remit fees to the department for
deposit into the fund for those mitigation actions in an amount that
reflects the determination by the Energy Commission, with respect to
a solar thermal powerplant, or the department, with respect to a
solar photovoltaic powerplant, of the costs attributable to the
mitigation actions that meet the standards of this chapter. The
amount of fees to be paid by a developer or owner of an eligible
project to meet the standards of this chapter shall be calculated on
a per acre basis, using total cost accounting, and shall include, as
applicable, land acquisition or conservation easement costs,
monitoring costs, restoration costs, transaction costs, the amount of
a nonwasting endowment account for land management or easement
stewardship costs by the department or other management entity, and
administrative costs and funds sufficient to repay any expenditure of
state funds made pursuant to paragraph (4). To ensure the funds
deposited pursuant to this section are sufficient to meet the
standards of this chapter, the project developer or owner, in
addition to payment of those funds, shall provide security, in a form
and amount, not to exceed 5 percent of the amount of the funds,
excluding any portion of the funds to be used for a nonwasting
endowment, to be determined by the Energy Commission, with respect to
a solar thermal powerplant, or to be determined by the department,
with respect to a solar photovoltaic powerplant.
(c) The department shall monitor the implementation of the
mitigation actions and the progress of the construction of the
eligible projects. The department shall report all deposits, and the
source of those deposits, on its Internet Web site. The department
shall also report all expenditures from the fund on its Internet Web
site and identify the mitigation activities or programs that each
expenditure funded and its relationship to the permitted project. The
Energy Commission, with respect to a solar thermal powerplant, and
the department, with respect to a solar photovoltaic powerplant,
shall ensure that moneys paid pursuant to this section are used only
for purposes of satisfying the standards of paragraph (2) of
subdivision (b) of Section 2081. Where moneys are used to fund
mitigation actions, including the acquisition of lands or
conservation easements, or the restoration of lands, that use shall
be in addition to, and not duplicative of, mitigation obtained
through any other means.
(d) The department and the Energy Commission shall not allow any
use of the interim mitigation strategy subsequent to a determination
by the department that the time and extent of mitigation actions are
not being implemented in rough proportion to the impacts of those
projects. The department shall reinstitute the use of the interim
mitigation strategy when the department determines the rough
proportionality between mitigation actions and impacts of eligible
projects has been reestablished by the completion of additional
mitigation actions.
SEC. 3. Section 2099.5 is added to the Fish and Game Code, to
read:
2099.5. (a) The department shall collect a permit application fee
from the owner or developer of an eligible project, as defined in
Section 2099, to support its permitting of eligible projects pursuant
to this chapter. The owner or developer of a proposed eligible
project shall pay a one-time permit application fee of seventy-five
thousand dollars ($75,000) to the department.
(b) The department shall collect the permit application fee, at
the time the owner or developer submits its permit application or,
for eligible projects for which an application has already been
submitted, within 30 days of the operative date of this section. The
department shall utilize the permit application fee to pay for all or
a portion of the department's cost of processing incidental take
permit applications pursuant to subdivision (b) of Section 2081 and
Section 2080.1. If the permit application fee is insufficient to
complete permitting work due to the complexity of a project or
timeline delays, the department may collect an additional fee from
the owner or developer to pay for its actual costs, not to exceed an
additional seventy-five thousand dollars ($75,000).
(c) For an eligible project seeking site certification, pursuant
to Chapter 6 (commencing with Section 25500) of Division 1 of the
Public Resources Code, by the Energy Commission, as defined in
Section 2099, the owner or developer shall pay the permit application
fee directly to the department. The permit application fee paid to
the department shall fund the department's participation in the
Energy Commission's site certification process as the state's trustee
for natural resources. The permit application fee shall be in
addition to any application fees collected directly by the Energy
Commission. The permit application fee shall be due and payable
within 30 days of the operative date of this section.
(d) Permit application fees paid pursuant to this chapter shall be
deposited in the Fish and Game Preservation Fund and shall be
eligible for expenditure by the department pursuant to subdivision
(b) of Section 2081 and Section 2080.1.
(e) The sum of one million six hundred fifty thousand dollars
($1,650,000) is hereby appropriated to the department from the Fish
and Game Preservation Fund for the purposes of this section. These
funds shall be available for expenditure through June 30, 2011.
(f) If an owner or developer withdraws a project within 30 days
after paying the permit application fee, the department shall refund
any unused portion of the fee to the owner or developer.
SEC. 4. Section 11430.70 of the Government Code is amended to
read:
11430.70. (a) Subject to subdivisions (b) and (c), the provisions
of this article governing ex parte communications to the presiding
officer also govern ex parte communications in an adjudicative
proceeding to the agency head or other person or body to which the
power to hear or decide in the proceeding is delegated.
(b) An ex parte communication to the agency head or other person
or body to which the power to hear or decide in the proceeding is
delegated is permissible in an individualized ratemaking proceeding
if the content of the communication is disclosed on the record and
all parties are given an opportunity to address it in the manner
provided in Section 11430.50.
(c) An ex parte communication to the agency head or other person
or body to which the power to hear or decide in the proceeding is
delegated is permissible in an individualized determination of an
application for site certification pursuant to Chapter 6 (commencing
with Section 25500) of Division 15 of the Public Resources Code, that
is before the State Energy Resources Conservation and Development
Commission, if the communication is made by an employee of another
state agency and is made for the purpose of enabling the presiding
officer to effectively manage the proceeding.
SEC. 5. Section 25524 is added to the Public Resources Code, to
read:
25524. (a) "Qualified applicant" means an applicant for
certification of a solar thermal powerplant that meets each of the
following requirements:
(1) The commission has determined that the application for
certification was completed by February 1, 2010.
(2) The solar thermal powerplant is proposed to be constructed in
the planning area for the Desert Renewable Energy Conservation Plan,
as defined in Section 2069 of the Fish and Game Code.
(3) The developer or owner of the proposed solar thermal
powerplant has applied for, and would qualify for funding under the
federal American Recovery and Reinvestment Act of 2009 (Public Law
111-5). For purposes of this paragraph, "funding" includes a loan
guarantee made pursuant to Section 406 of the act (42 U.S.C. Sec.
16516) or a grant for specified energy property in lieu of a tax
credit provided pursuant to Section 1603 of Division B of the act,
which division is titled the American Recovery and Reinvestment Tax
Act of 2009.
(b) The commission shall establish a process to allow a qualified
applicant to elect to pay additional fees to be used by the
commission to contract with a third party, or more than one third
party, to assist commission staff in performing the analysis
otherwise performed by commission staff in determining whether or not
to issue a certification. The commission shall retain discretion as
to when this option will be offered to a qualified applicant.
(c) The amount of the fees charged by the commission pursuant to
this section shall be conditioned upon the qualified applicant
agreeing to that amount and electing to proceed with the retention of
the third party or parties pursuant to subdivision (b).
(d) All fees paid by a qualified applicant shall be used
exclusively for analysis of that applicant's application for
certification.
SEC. 6. (a) The Legislature finds and declares that the purpose of
this section is to approve recruitment and retention differentials
for specified employees in State Bargaining Units 1 and 10 that
require the expenditure of funds, consistent with the state employer'
s memoranda of understanding with those bargaining units and the
Joint Legislative Budget Committee's determination that those
differentials require legislative approval.
(b) The recruitment and retention differentials specified in
subdivision (c) that are consistent with the memoranda of
understanding with State Bargaining Units 1 and 10 that require the
expenditure of funds are hereby approved for the purposes of Section
3517.63 of the Government Code.
(c) The recruitment and retention differentials for certain
members of State Bargaining Units 1 and 10 employed at the State
Energy Resources Conservation and Development Commission that were
described in the attachment to the letter, dated October 29, 2009,
from the Director of the Department of Personnel Administration to
the Chairperson of the Joint Legislative Budget Committee shall be
approved.
(d) The recruitment and retention differentials approved by
subdivisions (b) and (c) and that require the expenditure of funds
shall not take effect unless funds for these provisions are
specifically appropriated by the Legislature or already exist within
available appropriations. If the Legislature does not approve or
fully fund any addendum included in this section, either party may
reopen negotiations on all or part of the addendum.
(e) This section shall remain in effect only until January 1,
2011, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2011, deletes or extends
that date.
SEC. 7. This act addresses the fiscal emergency declared by the
Governor by proclamation on January 8, 2010, pursuant to subdivision
(f) of Section 10 of Article IV of the California Constitution.
SEC. 8. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to enable certain solar powerplant owners and developers
to remain eligible for funding pursuant to the federal American
Recovery and Reinvestment Act of 2009, it is necessary that this act
take effect immediately.