BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: SB 281 HEARING DATE: April 28, 2009
AUTHOR: Runner URGENCY: No
VERSION: As Introduced CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Endangered species: incidental take.
BACKGROUND AND EXISTING LAW
1. The California Endangered Species Act (CESA) authorizes the
California Department of Fish and Game (DFG) to issue permits
under specified conditions that may result in harm to species
that are listed as threatened, endangered, or candidate. In
such situations, the project proponent is required to undertake
mitigation for the harm caused to the species.
Specifically, Section 2081 of the Fish and Game Code provides
that the take of these rare species may be approved by the DFG
if:
1. The take is incidental to an otherwise lawful activity.
2. The impacts of the take shall be minimized and fully
mitigated. DFG is required to limit the mitigation
obligation to actions that are "roughly proportional" to
the impacts on the species.
3. DFG is also required to develop mitigation measures that
maintain the applicant's objectives to the greatest extent
possible.
4. The mitigation measures must be capable of successful
implementation.
5. Permits may not be issued if they would jeopardize the
continued existence of a species, which is a biological
determination that must be based on the condition of the
species, threats to the species, and other reasonably
available scientific information.
2. Governor Schwarzenegger, in Executive Order S-15-08, directed
that 33 percent of the state's electricity come from renewable
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energy sources by 2020. He formed a "Renewable Energy Action
Team" and directed this entity to develop a Desert Renewable
Energy Conservation Plan for the Mohave and Colorado Desert
regions. This plan is essentially a large-scale Natural
Community Conservation Plan for the affected regions that could
be finished by the end of 2010, if all goes well. The Executive
Order also directed DFG to establish a new division for
permitting renewable energy facilities and directed DFG and the
California Energy Commission to establish "one-stop shopping"
for permitting renewable energy power facilities.
3. The U.S. Bureau of Reclamation issued its West Mojave Plan
(WMP) in 2006. It covers 9 million acres of land in the Mojave
Desert, and is intended to protect over 100 species. The WMP
focuses on using an adaptive management approach to protect the
desert tortoise and the Mojave ground squirrel, two of the major
species covered by the plan. The plan streamlines the incidental
take permitting process under federal and state law for listed
species and allows development, resource extraction, and
recreation on disturbed lands within the planning area.
PROPOSED LAW
This bill would create a new mitigation provision in CESA for
renewable energy projects that are permitted after 1/1/08 but
prior to the adoption of the final Desert Renewable Energy
Conservation Plan (DRECP) required in the Executive Order. The
mitigation standard would require compliance with the federal
Bureau of Land Management 2006 Record of Decision, West Mojave
Plan, Amendment to the California Desert Conservation Area Plan.
This document, according to the author, establishes differing
mitigation ratios based on the acreage of the project. For
example, depending on the condition of the habitat, mitigation
ratios could range from .5 acres/acre of the project up to 3
acres of mitigation for each acre occupied by the project. Some
of the proposed larger solar arrays would occupy many hundreds
of acres and the purchase of the mitigation lands is obviously a
key financing component of the proposed new plants.
This proposed new section would sunset when the plan required by
the Executive Order is final and certified.
ARGUMENTS IN SUPPORT
According to the author, this bill is intended to allow solar
energy projects already in the permitting pipeline to continue
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while various agencies are developing the DRECP. The author
notes that mitigation ratios of 3 acres for each acre of the
project have been imposed on occasion. He considers this ratio
too high on lands that are disturbed or already planned or zoned
for development.
The author is also concerned that higher mitigation ratios are
expensive. This bill, he notes, provides certainty with a
mandated mitigation ratio.
As one example, the author points to a solar-natural gas power
plant in Victorville. The solar array would occupy 250 acres,
and the natural gas part of the plant would occupy 25 acres. The
City has purchased 300 acres of land for $7 million for the
project.
The California Energy Commission permit required 3:1 mitigation,
according to the author, which would have required the city to
purchase another 1000 acres, and provide funding for the habitat
benefits of the listed species, in this case, the desert
tortoise, the Mohave ground squirrel, and the burrowing owl.
According to the author, a survey discovered 3 desert tortoises
and no ground squirrels on the site. The city asked for a 1:1
mitigation ratio for mitigation lands, but was denied.
ARGUMENTS IN OPPOSITION
Defenders of Wildlife state that the bill undermines the "fully
mitigate" standard of state law, applies a federal conservation
standard that has not been analyzed as to its sufficiency under
state law, applies across vast reaches of the desert including
lands not included in the federal West Mojave Plan that the bill
uses as a template for its recommended mitigation ratio, and
would undermine an incomplete Desert Renewable Energy
Conservation Plan that DFG and the CEC are developing. This
group points out that bill could end up shifting mitigation
responsibilities for one project to another. Its letter was
joined by Audubon California.
COMMENTS
1. Staff suggests that the Committee should consider whether
this bill would undermine the "full mitigation" requirement of
CESA in the context of providing renewable energy. Currently, as
set forth above, all projects must fully mitigate impacts on
species. This determination relies on the best available
scientific information that is available to DFG and is a
fundamental requirement of state law. Sec. 2081 was carefully
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negotiated in 1997 and was enacted with the support of
developers and other landowners, and modest support in the
environmental community. It was considered for the first time
by the California Supreme Court and the "full mitigation"
standard was described by that court in language that recognized
completely the trade-offs that were considered in Sec. 2081.
Environmental Information Protection Center v. California
Department of Forestry. This bill, perhaps unintentionally,
would require re-opening Sec. 2081 at least in the context of
renewable energy development.
2. In the "Preliminary Staff Assessment" for a desert solar
facility in the Ivanpah Valley, the applicant proposed a 1:1
mitigation ratio. The referenced Energy Commission document
noted that such a mitigation ratio may be appropriate on federal
lands within the Northern and Eastern Mojave Planning Area that
are not designated as Desert Wildlife Management Areas. However,
the document noted that such a ratio would not likely meet the
mitigation requirements of the California Environmental Quality
Act which requires an applicant to avoid or mitigate to a level
of insignificance all direct, indirect, and cumulative impacts
of biological resources. Most important for the consideration of
this bill, however, is the conclusion that the proposed 1:1
mitigation ratio "fails to meet the state's full mitigation
standard?"
3. Various mitigation standards are in place for desert
tortoises and Mojave ground squirrels in the West Mojave Plan
Habitat Conservation Plan and the California Desert Conservation
Area Plan. These ratios depend on the land's conservation values
and how the land is classified in the various desert
conservation habitat plans. According to the petition to list as
the Mohave ground squirrel as an endangered species, mitigation
ratios of 3:1 and 5:1 have been required by federal agencies.
The lowest required ratio was 2.3:1 for the private sector
Hyundai Habitat Conservation Plan, according to materials
submitted by the petitioners.
4. In addition to the ongoing work by various state and federal
agencies to expedite the Governor's Executive Order, Senator
Diane Feinstein has announced her intention to develop a new
Desert National Monument that would, if adopted, permanently
conserve the designated acreage and preclude development. At the
same time, an ongoing effort to identify acreages that would be
acceptable for renewable energy development is underway.
5. Staff had a series of productive conversations with the
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sponsors of this bill and the author's staff. Ultimately,
however, we were not able to reach agreement on the CESA
provisions, especially in light of the unfinished activities of
the state regulatory agencies to implement the Executive Order
and the implications of Senator Feinstein's proposal for a new
federal monument. The author has generously agreed to present
his bill to the Committee with the intention of making it a
two-year effort in the hope that some resolution can occur in
the ensuing months.
Staff recommendation: The author's request is completely
reasonable.
SUPPORT
None Received
OPPOSITION
Audubon California
Defenders of Wildlife
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