BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: SB 16 HEARING DATE: March 22, 2011
AUTHOR: Rubio URGENCY: Yes
VERSION: February 15, 2011 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Renewable energy: Department of Fish and Game:
expedited permitting.
BACKGROUND AND EXISTING LAW
Note--SB 16 is presented in mock-up form for purposes of this
hearing.
1.The California Department of Fish and Game (DFG) has the
responsibility to administer the California Endangered Species
Act (CESA), among other duties. This law authorizes, in
specified circumstances, DFG to issue "incidental take" permits
to enable a development project to harm one or more protected
species or their habitat. In the absence of such a permit, CESA
prohibits the take of any endangered or threatened species. DFG
may issue an incidental take permit authorizing the take of
endangered or threatened species if certain conditions are met,
including that the take is incidental to an otherwise lawful
activity, and the impacts of the authorized take are minimized
and fully mitigated. CESA requires applicants to ensure adequate
funding to implement mitigation and monitoring measures.
2.The incidental take of listed species is also authorized
pursuant to the Natural Community Conservation Planning Act,
generally a voluntary, large-scale plan that allocates lands
both for development projects and conservation reserves.
3.In the context of renewable energy developments mainly in the
southern California desert regions, DFG is one of several state
and federal agencies that are collaborating on siting desert
renewable facilities on both private and public lands and
requiring mitigation for these projects when necessary to offset
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impacts on protected species. This effort is part of a
multi-species habitat plan called the California Desert
Renewable Energy Conservation Program (DRECP).
4.Last year, in SB 34 8X (Padilla), the Legislature passed and
the Governor signed into law several amendments to CESA that
were intended to expedite the regulatory approval of solar
thermal and photovoltaic energy projects in parts of the
southern California desert within the DRECP planning area. The
DRECP effort will identify the best sites for renewable
projects and the best lands that should be reserved for
mitigation. Among other provisions, that new statute provides
for the in lieu payment of funds that would allow DFG to
purchase mitigation lands in advance for eligible renewable
energy projects in the desert that were to receive funds from
the federal government's stimulus (ARRA) funds. That new law
also created a $75,000 fee that developers would pay to DFG to
cover its costs in reviewing the endangered species
implications of these projects.
5.The California Energy Commission (CEC) is required to license
thermal power plants over 50 megawatts and the plant's related
facilities including fuel supply lines, water pipelines, and
transmission lines that tie the facility to the grid. The CEC
has authority to administer CESA for specified projects.
6.According to the California Code of Regulations, DFG must
complete an initial review of an incidental take permit
application within 30 days to determine that the application is
complete. If the application is not complete, the applicant
then has 30 days to re-submit a complete application.
7.Most often, DFG is a responsible agency under CEQA for a
project for which a local government or other entity is the
lead agency. In these cases, DFG is required to approve or deny
a permit application with 90 days of when the lead agency
approved the project or within 90 days of when the application
was accepted as complete by DFG. In more complex cases, the
department may notify the applicant that the time limit may be
extended an additional 60 days.
8.In circumstances in which DFG is the lead agency, regulations
require the department to approve or deny a permit within 120
days after a completed application is submitted. The
regulations allow a 60 day extension for complex cases.
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PROPOSED LAW
1.In findings, the bill declares the importance of the Renewable
Portfolio Standard (RPS) program and of the scientific
evaluation of project effects on species by DFG. The findings
also note that existing timelines allow for applications to be
routinely amended or resubmitted, thereby delaying decisions on
whether a permit should or should not be granted. The author,
relying on information provided by DFG, is concerned that the
sheer number of proposed renewable projects in the desert region
of the state and in the southern San Joaquin Valley could
literally overwhelm DFG's ability to process applications and to
meet a reasonable deadline for approving or rejecting
applications. Perhaps as many as 320 projects will be considered
in the upcoming two year period, according to DFG. Unnecessary
delays in approving these projects would have adverse economic
consequences in the region.
2.SB 16 would impose a requirement that DFG notify applicants when
an application for an incidental take permit is complete. The
bill requires that notification within 10 days.
3.The bill would also impose a requirement that DFG approve or
reject an incidental take application within 90 days after the
application is complete, if the permit involves only the state
endangered species act.
4.The bill would impose a requirement that DFG approve or reject
an incidental take application within 150 days after the
application is complete where the permit involves species listed
pursuant to both the state and federal endangered species act.
This provision would mirror the same applicable timeline that
is in federal regulations.
5.The bill would extend the $75,000 developer fee provision that
applies to certain renewable projects to all RPS projects,
except for projects for which a consistency determination may be
issued by DFG which takes much less agency time to approve. For
complex projects, additional fees could be required to pay for
the department's actual costs, but could not exceed an
additional $75,000.
6.For projects that are eligible for a consistency determination
pursuant to Sec. 2080.1 of the Fish and Game Code, the fee would
not be $75,000 but instead would be the department's actual
costs of reviewing the application, an amount that would be
considerably lower.
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7.The department would be required to produce a full accounting of
its expenditures of fee revenues for all of the factors listed
in the bill.
ARGUMENTS IN SUPPORT
The author's intention is twofold: He wants to impose a set of
deadlines on the Department of Fish and Game for considering
applications for renewable energy projects that are a part of
the state's renewable portfolio standard program. He also wants
to ensure that the department has adequate resources to review
the biological effects of these proposed projects within those
deadlines. The bill is intended to help implement the California
renewable energy portfolio standard in SB 2X (Simitian), an
effort to obtain 33 percent of California's total energy from
renewable energy sources by 2020 and to recognize the economic
importance of these projects in the southern San Joaquin valley
and other parts of the state
ARGUMENTS IN OPPOSITION
None received.
COMMENTS
The mockup is the work product of considerable discussion
involving several parties.
The fee language is the same as that contained in ABX1 13(V.
Manuel Perez). If both bills are adopted, this identical
language would avoid a chaptering out problem for both bills.
The author has indicated he may want to consider additional
items for this bill as it moves forward and he plans discussions
with renewable energy and environmental advocates. The Committee
should be kept apprised of those discussions and the author has
agreed to that request, which may also include a request to
re-hear the bill at a later time.
SUPPORT
None received
OPPOSITION
None Received
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