BILL NUMBER: AB 284 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Nestande
(Principal coauthor: Senator Emmerson)
FEBRUARY 8, 2011
An act to amend Section 2069 of, and to add Section 2836 to, the
Fish and Game Code, relating to the Natural Community Conservation
Planning Act.
LEGISLATIVE COUNSEL'S DIGEST
AB 284, as introduced, Nestande. Desert Renewable Energy
Conservation Plan: Coachella Valley: exclusion.
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. The California Endangered Species Act
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 resulting
from certain solar thermal and photovoltaic powerplants in the
planning area of the Desert Renewable Energy Conservation Plan, a
natural community conservation plan in the Mojave and Colorado Desert
regions.
This bill would exclude any area covered by the Coachella Valley
Multiple Species Habitat Conservation Plan from the Desert Renewable
Energy Conservation Plan.
Vote: majority. Appropriation: no. 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) (A) "Desert Renewable Energy
Conservation Plan" means , except as provided in subparagraph
(B), 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.
(B) "Desert Renewable Energy Conservation Plan" does not include
any area covered by the Coachella Valley Multiple Species Habitat
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 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
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 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 This section
shall not 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 2836 is added to the Fish and Game Code, to read:
2836. The Desert Renewable Energy Conservation Plan, as defined
in Section 2069, shall not include any area covered by the Coachella
Valley Multiple Species Habitat Conservation Plan.