BILL NUMBER: ABX1 13 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 1, 2011
AMENDED IN SENATE APRIL 26, 2011
AMENDED IN ASSEMBLY MARCH 1, 2011
INTRODUCED BY Assembly Members V. Manuel Pérez, Bradford, and
Skinner
( Principal coauthor: Senator
Rubio )
(Coauthor: Assembly Member John A. Pérez)
FEBRUARY 7, 2011
An act to amend Sections 2069 and 2099 of, and to add
Sections Section 2099.10 and 2840
to, the Fish and Game Code, and to amend Section 25524 of,
and to add Section 25619 to, the Public Resources Code, relating to
renewable energy resources, and making an
appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 13, as amended, V. Manuel Pérez. Energy: renewable resources:
endangered species: environmental impact reports.
(1) 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 authorizes
the department to authorize the take of threatened species,
endangered species, or candidate species by permit if certain
requirements are met. CESA authorizes the department, in consultation
with the State Energy Resources Conservation and Development
Commission (Energy Commission) and, to the extent practicable, the
United States Fish and Wildlife Service and the 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.
This bill additionally would authorize the department to design
and implement these mitigation actions for proposed wind and
geothermal powerplants in the planning area subject to the Desert
Renewable Energy Conservation Plan.
(2) Existing law requires the department to collect, and requires
the owner or developer of an eligible project to pay, a one-time
permit application fee of $75,000 to the department for deposit into
the Fish and Game Preservation Fund. Existing law requires 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.
This bill would additionally require the department to collect,
and an owner or developer of an eligible project to pay, a
one-time permit application fee of either $25,000,
$50,000 , or $75,000, as specified, to the
department for deposit into the Fish and Game Preservation Fund, to
pay for all or a portion of the department's cost of processing
incidental take permit applications. The bill would define "eligible
project" to mean an eligible renewable energy resource, as defined in
the California Renewables Portfolio Standard Program. If the permit
application fee is determined by the department to be
insufficient to complete permitting work due to the complexity of a
project or timeline delays , the bill would
authorize require the department to
collect an additional fee from the owner or developer to pay for its
actual estimated costs, not to exceed
an additional $200,000. The bill would limit the fee
collected by the department, if the department's cost of processing
an incidental take permit application is limited to activities
relating to a consistency determination, to an amount that does not
exceed the anticipated full costs to the department for those
activities. The bill would require the department and
the Energy Commission to enter into a cost-sharing agr
eement, as specified, governing all eligible projects, as defined,
that are subject to the commission's certification requirements. The
bill would appropriate $6,000,000 from the Fish and Game Preservation
Fund, thereby making an appropriation. The bill would require, of
the funds appropriated, that 10% be allocated only after the
department submits to the Joint Legislative Budget Committee, by
February 1, 2012, certain information related to fee collection,
expenditure, and workload, for the first 6 months of the fiscal year.
The bill would prohibit the release of that allocation for
expenditure until March 1, 2012.
Existing law establishes 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
definition of eligible projects, for purposes of these provisions and
fees, is limited to certain solar thermal powerplants and
photovoltaic powerplants proposed to be constructed in the planning
area subject to the Desert Renewable Energy Conservation Plan.
This bill would expand the definition of eligible projects to
include wind and geothermal powerplants proposed to be constructed in
the planning area subject to the Desert Renewable Energy
Conservation Plan. By expanding the purposes for which moneys in this
continuously appropriated fund may be used, this bill would make an
appropriation.
(3) The Natural Community Conservation Planning Act authorizes the
Department of Fish and Game to enter into agreements with any person
or public entity for the purpose of preparing a natural community
conservation plan, in cooperation with a local agency that has land
use permit authority over the activities proposed to be addressed in
the plan, to provide comprehensive management and conservation of
multiple wildlife species.
This bill would require the department to enter into one or more
planning agreements with appropriate plan participants, including,
but not limited to, the Energy Commission, one or more counties
within the San Joaquin Valley, as defined, and other persons or
public entities for the purpose of preparing one or more natural
community conservation plans, if certain conditions are met with
regard to the plan and the parties to the planning agreement.
(4)
(3) The Warren-Alquist State Energy Resources
Conservation and Development Act establishes the State Energy
Resources Conservation and Development Commission (Energy
Commission), and requires it to certify sufficient sites and related
facilities that are required to provide a supply of electricity
sufficient to accommodate projected demand for power statewide. The
act grants the Energy Commission the exclusive authority to certify
any stationary or floating electrical generating facility using any
source of thermal energy, with a generating capacity of 50 megawatts
or more, and any facilities appurtenant thereto.
Existing law requires the Energy Commission to establish a process
for certain applicants for certification of a solar thermal
powerplant that is proposed to be constructed in the planning area
subject to the Desert Renewable Energy Conservation Plan, as defined,
that allows the applicant to elect to pay additional fees to be used
by the Energy Commission to contract with 3rd parties to assist the
Energy Commission staff in performing the analysis otherwise
performed by staff in determining whether or not to issue a
certification.
This bill would expand this process to include any applicant for
certification of an eligible renewable energy resource.
The bill would require the Energy Commission , upon
appropriation by the Legislature, to provide $7,000,000 in
grants to qualified counties for the development or revision of rules
and policies, including, but not limited to, general plan elements,
zoning ordinances, and a natural community conservation plan as a
plan participant, to facilitate the development of eligible renewable
energy resources, and their associated electric transmission
facilities, on disturbed lands, as defined, and the processing of
permits for eligible renewable energy resources. The bill would
require a general plan element or zoning ordinance that is adopted or
revised pursuant to a grant to be completed within 2 years of
receipt of the grant and be consistent with the conservation
strategies of any natural community conservation plan, if one has
been approved or is under development. The bill would prohibit the
commission from awarding a grant to a county that is not a "plan
participant," as defined, in the Desert Renewable Energy Conservation
Plan. The bill would require the Energy Commission, in its initial
round of grant funding, to establish a preference for a grant to a
qualified county in an amount that is adequate to develop a renewable
energy element in its general plan that will facilitate the
development and siting of eligible renewable energy resources
that utilize multiple renewable energy technologies, and to
also establish a preference for a grant for those counties that have
experience in geothermal energy development and have adopted a
geothermal element, as defined, to its general plan.
(5)
(4) This bill would provide that it
Section 3 of this bill would be operative only if SB
2 16 of the 2011-12 First
Extraordinary Regular Session is enacted and
becomes effective on or before January 1, 2012. This bill would
require Section 3 of this bill to be operative on the effective date
of this act or on the effective date of SB 16, whichever is later.
(6)
(5) The California Constitution authorizes the Governor
to declare a fiscal emergency and to call the Legislature into
special session for that purpose. Governor Schwarzenegger issued a
proclamation declaring a fiscal emergency, and calling a special
session for this purpose, on December 6, 2010. Governor Brown issued
a proclamation on January 20, 2011, declaring and reaffirming that a
fiscal emergency exists and stating that his proclamation supersedes
the earlier proclamation for purposes of that constitutional
provision.
This bill would state that it addresses the fiscal emergency
declared and reaffirmed by the Governor by proclamation issued on
January 20, 2011, pursuant to the California Constitution.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2069 of the Fish and Game Code is amended 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 the Draft Planning Agreement, as
amended , by, and among, the 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.
(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,
photovoltaic, wind, and geothermal powerplants in the Desert
Renewable Energy Conservation Plan planning area that meet either of
the following requirements:
(1) Either the Energy Commission determines that the application
for certification is complete by December 31, 2011, or the
local government in which the project is located lead
agency for purposes of the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code) has determined the project permit application is complete
or has issued a notice of preparation of an environmental impact
report pursuant to Division 13 (commencing with Section
21000) of the Public Resources Code by December 31, 2011.
(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 paragraph, "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 for the
impacts of the take of those species from one or more projects that
meet the requirement of subdivision (b).
(2) The mitigation action is included in an interim mitigation
strategy for projects that meet the requirement of 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 perpetual 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 advisers. The department
shall seek and consider comments from the Desert Renewable Energy
Conservation Plan independent science advisers 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 advisers 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) This section does not modify the requirements of Section
2081, including the requirement to avoid and minimize impacts, where
feasible, or the requirements of Division 13 (commencing with Section
21000) of, or 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 or geothermal
powerplant 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 renewable energy powerplant not
subject to the Energy Commission's jurisdiction, 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 that are taken
instead by the department or its contractor or designee pursuant to
subdivision (b) to meet the applicant's obligations with respect to
mitigating 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 of the Fish and Game Code is amended to read:
2099. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Eligible project" means a solar thermal powerplant,
photovoltaic powerplant, wind powerplant, or geothermal powerplant
meeting the requirements of paragraph (1) or (2) of subdivision (b)
of Section 2069 or meeting the definition of a "covered activity" in
the final Desert Renewable Energy Conservation Plan, as approved by
the department.
(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 by funding mitigation actions implemented by the
department or third parties in a contractual relationship with the
department. 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 or geothermal powerplant subject to its jurisdiction,
or the department, with respect to a renewable energy powerplant not
subject to the Energy Commission's jurisdiction, 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 perpetual
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 perpetual endowment, to be determined
by the Energy Commission, with respect to a solar thermal or
geothermal powerplant subject to its jurisdiction, or to be
determined by the department, with respect to a renewable energy
powerplant not subject to the Energy Commission's jurisdiction.
(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 or geothermal
powerplant subject to its jurisdiction, and the department, with
respect to a renewable energy powerplant not subject to the Energy
Commission's jurisdiction, 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 2099.10 is added to the Fish and Game Code, to
read:
2099.10. (a) The department, pursuant to subdivisions (b) and
(c), shall collect a permit application fee from the owner or
developer of an eligible project to support the permitting or
certification of eligible projects pursuant to this chapter. Except
as provided in paragraph (2) of subdivision (b), the owner or
developer of a proposed eligible project shall pay a on-time permit
application fee of fifty thousand dollars ($50,000) to the
department. For purposes of this section, an "eligible project" means
an eligible renewable energy resource as defined in the California
Renewables Portfolio Standard Program (Article 16 (commencing with
Section 399.11) of Chapter 2.3 of Part 1 of Division 1 of the Public
Utilities Code).
(b) (1) The department shall collect the permit application fee
at the time the owner or developer submits its permit application.
For eligible projects for which an application was submitted before
January 1, 2012, but which application has not yet been deemed
complete, the department shall not deem the application complete
until it has collected the permit application fee. The department
2099.10. (a) (1) The Legislature finds and
declares that it is in the interest of the state that incidental take
permit applications submitted by renewable energy developers be
processed by the department in a timely, efficient, and thorough
manner and the department be funded adequately to review and process
the applications. It is further the intent of the Legislature that
the department work in a transparent and consultative manner with
renewable energy developers who apply for incidental take permits,
including as described in this section and Section 2099.20.
(2) For purposes of this section and Section 2099.20, the
following terms have the following meanings:
(A) "Eligible project" means an eligible renewable energy
resource, as defined in the California Renewables Portfolio Standard
Program (Article 16 (commencing with Section 399.11) of Chapter 2.3
of Part 1 of Division 1 of the Public Utilities Code).
(B) "Energy Commission" means the State Energy Resources
Conservation and Development Commission.
(b) The department shall collect the following permit application
fee from the owner or developer of an eligible project that is not
subject to the Energy Commission's certification requirements to
support the permitting of eligible projects pursuant to this chapter:
(1) Twenty-five thousand dollars ($25,000) for projects,
regardless of size, that are subject only to Section 2080.1.
(2) Twenty-five thousand dollars ($25,000) for projects that are
less than 50 megawatts.
(3) Fifty thousand dollars ($50,000) for projects that are not
less than 50 megawatts and not more than 250 megawatts.
(4) Seventy-five thousand dollars ($75,000) for projects that are
more than 250 megawatts.
(c) (1) For applications submitted to the department on or after
the effective date of this act, the department shall collect the
permit application fee at the time the owner or developer submits its
permit application. For applications submitted after June 30, 2011,
but before the effective date of the act, the department shall
collect the permit application fee upon the effective date of the act
and shall not deem the application complete until it has collected
the permit application fee. Permit applications submitted prior to
June 30, 2011, or deemed complete prior to the effective date of the
act shall not be subject to fees established pursuant to this
section.
(2) The department shall utilize
the permit application fee only 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
(d) (1) If
the permit application fee is paid pursuant
to subdivision (b) is determined by the department to be
insufficient to complete permitting work due to the complexity of a
project or timeline delays , the department
may shall collect an additional fee
from the owner or developer to pay for its actual costs, not
to exceed an additional two hundred thousand dollars ($200,000).
This additional fee shall be collected before a final decision on the
project by the department or the Energy Commission.
(2) Notwithstanding subdivision (a), if the department's cost of
processing an incidental take permit application is limited to
activities pursuant to Section 2080.1, the department shall collect a
fee from the owner or developer of an eligible project in an amount
that does not exceed the anticipated full costs to the department for
those activities.
(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, 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 by the Energy Commission. The permit application fee
shall be due and payable within 30 days of the operative date of this
section. As used in this subdivision, "Energy Commission" has the
same meaning as defined in Section 2099.
(d) The permit
application fees paid pursuant to this section shall be annually
reviewed and adjustments recommended to the estimated
costs. Upon its determination, the department shall notify the
applicant of the reasons why an additional fee is necessary and the
estimated amount of the additional fee.
(2) The additional fee shall not exceed an amount that, when
added to the fee paid pursuant to subdivision (b), equals two hundred
thousand dollars ($200,000). The department shall collect the
additional fee before a final decision on the application by the
department.
(e) (1) It is the intent of the Legislature that the department
participate in the Energy Commission's site certification process for
eligible projects as the state's trustee for natural resources.
(2) The department and the Energy Commission shall enter into a
cost-sharing agreement governing all eligible projects that are
subject to the Energy Commission's certification requirements. The
agreement shall ensure that all or a portion of the department's
costs of participating in the Energy Commission's site certification
process for eligible projects for the purpose of advising the Energy
Commission with regard to the Energy Commission's issuance of
incidental take authorization, pursuant to Section 2080.1 and
subdivision (b) of Section 2081, shall be paid to the department by
the Energy Commission from the fees received by the Energy Commission
pursuant to subdivision (a) of Section 25806 of the Public Resources
Code.
(3) Funds identified by the Energy Commission for transfer to the
department pursuant to the cost-sharing agreement required in
paragraph (2) are exempt from the requirements of subdivision (d) of
Section 25806 of the Public Resources Code.
(f) The department shall annually
review the permit application fees paid pursuant to subdivisions (b)
and (d) and shall recommend adjustments to the Legislature in
an amount necessary to pay the full costs of processing the project's
incidental take permit. The fees paid to the department pursuant to
this section 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)
(g) 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.
(h) (1) For purposes of this section, the Legislature hereby
appropriates six million dollars ($6,000,000) from the Fish and Game
Preservation Fund.
(2) Of the funds appropriated pursuant to this subdivision, 10
percent shall be allocated only after the department submits to the
Joint Legislative Budget Committee, by February 1, 2012, information
related to fee collection, expenditure and workload, including, as
feasible, the information required in paragraph (1) of subdivision
(e) of Section 2099.20, for the first six months of the fiscal year.
That allocation shall not be released for expenditure, until March 1,
2012.
SEC. 4. Section 2840 is added to the Fish and
Game Code, to read:
2840. (a) Consistent with this chapter and to the extent
practicable, the department shall enter into one or more planning
agreements with appropriate plan participants, including, but not
limited to, the State Energy Resources Conservation and Development
Commission (Energy Commission), one or more counties within the San
Joaquin Valley, and other persons or public entities for the purpose
of preparing one or more natural community conservation plans, if all
of the following conditions are met:
(1) The plan meets all the requirements of this chapter and
appropriate financial assurances for adequate funding for those
plans, as required by this chapter, are provided to the department.
(2) The parties to the planning agreement include both of the
following:
(A) One or more local agencies with land use permit authority
sufficient to allow for comprehensive management and conservation of
multiple wildlife species.
(B) One or more parties that are renewable energy developers
proposing to construct, in total, at least 2,000 megawatts of
eligible renewable energy resources, as defined in the California
Renewables Portfolio Standard Program (Article 16 (commencing with
Section 399.11) of Chapter 2.3 of Part 1 of Division 1 of the Public
Utilities Code).
(b) "San Joaquin Valley," for purposes of this section, means
lands within the Counties of Fresno, Kern, Kings, Madera, Merced, San
Joaquin, Stanislaus, and Tulare, as determined by each county in
consultation with the department.
SEC. 5. SEC. 4. Section 25524 of the
Public Resources Code is amended to read:
25524. (a) "Qualified applicant" for purposes of this section
means an applicant for certification of
an eligible renewable energy resource, as defined in the
California Renewables Portfolio Standard Program (Article 16
(commencing with Section
399.11) of Chapter 2.3 of Part 1 of Division 1 of the Public
Utilities Code).
(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. SEC. 5. Section 25619 is
added to the Public Resources Code, to read:
25619. (a) For purposes of this section, the following
definitions shall apply:
(1) "Agricultural activities" has the same meaning as defined in
subdivision (e) of Section 3482.5 of the Civil Code except for
livestock production, notwithstanding the periodic use of the land
for the production and utilization of forage.
(1)
(2) "Disturbed lands" means lands that have been
mechanically disturbed, including lands that have been converted from
native vegetation through plowing, bulldozing, or other mechanical
means in support of activities that change the land cover, including,
but not limited to, agriculture, mining, and clearance for
development purposes. These lands, based on appropriate biological
surveys, may also have diminished value as habitat for mitigation
purposes for endangered, threatened, candidate, and other sensitive
species. Agricultural land shall not qualify for disturbed lands
unless it also qualifies as marginally productive or physically
impaired, pursuant to paragraphs (3) and (4).
(3) "Marginally productive" means parcels consisting predominantly
of soil with significantly reduced agricultural productivity due to
chemical or physical limitations. A parcel of land may be designated
as marginally productive pursuant to this paragraph if both of the
following apply:
(A) The parcel was not irrigated for agricultural activities
during the prior six years.
(B) Use of the parcel is significantly limited for agricultural
activities due to its topography, drainage, flooding, adverse soil
conditions, or other physical reasons.
(4) "Physically impaired land" means land with severely adverse
soil conditions that are detrimental to continued agricultural
cultivation and production. Severely adverse soil conditions may
include, but are not limited to, contamination by salts or selenium,
or other naturally occurring contaminants. The Secretary of Food and
Agriculture may consult with the Secretary of the Natural Resources
Agency and consider information from the agricultural commissioner in
the county where the land is located.
(2)
(5) "Qualified counties" means the Counties of Fresno,
Imperial, Inyo, Kern, Kings, Los Angeles, Madera, Merced, Riverside,
San Bernardino, San Diego, San Joaquin, Stanislaus, and Tulare.
(b) The commission shall provide , upon appropriation by
the Legislature, up to seven million dollars ($7,000,000)
in grants to qualified counties for the development or revision of
rules and policies, including, but not limited to, general plan
elements, zoning ordinances, and a natural community conservation
plan as a plan participant, that facilitate the development of
eligible renewable energy resources, and their associated electric
transmission facilities, on disturbed lands and the processing of
permits for eligible renewable energy resources. The commission may
allocate not more than 1 percent of appropriated funds to provide
training to county planning staff to facilitate the siting and
permitting of eligible renewable energy resources. A
general plan element or zoning ordinance that is adopted or revised
pursuant to this section shall be completed within two years of
receipt of the grant and shall be consistent with the conservation
strategies of any natural community conservation plan if one has been
approved, or is under development, pursuant to the Natural Community
Conservation Planning Act (Chapter 10 (commencing with Section 2800)
of Division 3 of the Fish and Game Code). For counties within the
Desert Renewable Energy Conservation Plan planning area, the
commission shall not award a grant to a county that is not a "plan
participant," as defined by paragraph (1) of subdivision (j) of
Section 2805 of the Fish and Game Code, in the Desert Renewable
Energy Conservation Plan.
(c) In its initial round of grant funding, the commission shall
establish a preference for a grant to a qualified county in an amount
that is adequate to develop a renewable energy element in its
general plan that will facilitate the development and siting of
eligible renewable energy resources that utilize multiple
renewable energy technologies. The commission shall also establish a
preference for a grant for those counties that have experience in
geothermal energy development and have adopted a geothermal element,
as defined in Section 25133, to its general plan.
(d) The commission shall only implement this section upon
receiving a specific appropriation for the purposes of this section
by the Legislature from the Renewable Resources Trust Fund or other
funds from the Energy Resources Program Account.
SEC. 7. This bill shall become operative only
if Senate Bill 2 of the 2011-12 First Extraordinary Session is
enacted and becomes effective on or before January 1, 2012.
SEC. 6. Section 3 of this bill shall become
operative only if Senate Bill 16 of the 2011-12 Regular Session is
enacted and takes effect on or before January 1, 2012. Section 3 of
this bill shall become operative on the effective date of this act or
on the effective date of Senate Bill 16 of the 2011-12 Regular
Session, whichever is later.
SEC. 8. SEC. 7. This act addresses
the fiscal emergency declared and reaffirmed by the Governor by
proclamation on January 20, 2011, pursuant to subdivision (f) of
Section 10 of Article IV of the California Constitution.