BILL ANALYSIS 1
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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: AB 960 HEARING DATE: June 22, 2010
AUTHOR: M. Perez URGENCY: No
VERSION: June 3, 2010 CONSULTANT: Bill Craven
DUAL REFERRAL: Energy, Utilities, & CommunicationFISCAL: Yes
SUBJECT: Renewable energy resources: powerplant siting:
California Endangered Species Act: mitigation measures.
BACKGROUND AND EXISTING LAW
1. The California Endangered Species Act (CESA) prohibits the
take of any endangered or threatened species unless the take is
authorized pursuant to a permit or other
authorization by the Department Fish and Game (DFG). 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 measures, including for
monitoring.
2. Under the Natural Community Conservation Planning Act
(NCCPA), DFG may authorize by permit the taking of any covered
species whose conservation and management is provided for in a
natural community conservation plan (NCCP) approved by DFG.
3. In the Eighth Special Session that adjourned in March, 2010,
one of the measures that was passed by the Legislature and
signed by the governor was SBX8 34 (Padilla). That bill allowed
eligible project developers to pay in-lieu fees as a component
of a regional advance mitigation program along with other
requirements for complying with CESA. Those fees would be used
by the Department of Fish and Game (DFG) to acquire and restore
habitat lands for endangered species impacted by the projects.
4. SBX8 34 was limited to approximately 19 photovoltaic and
solar thermal projects in which the applications for those
projects met specified criteria.
5. All of the projects covered by the Padilla legislation are
located within the planning area of the Desert Renewable Energy
Conservation Plan (DRECP), a regional habitat conservation plan
and NCCP being developed jointly by DFG, California Energy
Commission (CEC), Bureau of Land Management, and the US Fish and
Wildlife Service in the Mojave and Colorado desert regions of
the state.
6. SBX8 34 also limited eligible projects to those for which
both a completed application was received by February 1, 2010,
and for which the developer or owner applied for and qualified
for federal American Recovery and Reinvestment Act (ARRA)
funding.
7. SBX8 34 also imposed fees on applicants of $75,000 and
appropriated $1.7 million to DFG for its work in reviewing
siting applications submitted to the CEC for these approximately
19 projects.
8. The Renewable Energy Resources Development Fee Trust Fund
(RERDF) was created for deposit of fees received for purposes of
mitigation actions, and provided that the Fund shall serve as an
optional voluntary method for eligible projects to comply with
mitigation requirements.
9. SBX8 34 also transferred ten million dollars as a loan from
the Renewable Resource Trust Fund to the ERDF, and authorized
DFG to use the loan monies to purchase mitigation lands or
conservation easement and for related costs in advance of
receipt of fees from project developers.
10. SBX8 34 provided that the amount of the fees to be paid by
the project developers that elect to deposit fees to meet
mitigation requirements shall be calculated on a per acre basis
and shall include land acquisition or conservation easement
costs, restorations costs, monitoring costs, transaction costs,
the amount for a non-wasting endowment account, administrative
costs, and funds sufficient to repay the $10 million loan.
PROPOSED LAW
This bill would expand the eligible projects that could use the
regional advance mitigation program established in SBX8 34 to
include wind powerplants and geothermal powerplants.
The bill would not require that the application deadlines in
SBX8 34 to apply to these newly eligible projects, nor would it
require that these newly eligible projects obtain ARRA funding.
The bill would maintain the substantive provisions of the SBX8
34 with regard to provisions of the advance mitigation program
of CESA.
The bill would propose to use the prior funding arrangements and
appropriations to DFG that were originally intended to apply to
a smaller universe of projects. In other words, no new funding
for advance mitigation or the administrative review of these
projects is proposed in AB 960 for either DFG or the Energy
Commission, although it is not clear what these departments
actual expenditures will be.
ARGUMENTS IN SUPPORT
The author is strongly committed to the development of renewable
energy, green jobs, and clean technology in his district, parts
of which have unemployment rates of 30% or more. He views this
bill as an integral part of improving the economic condition of
his constituents. This bill is associated with the Assembly
leadership's green jobs package.
ARGUMENTS IN OPPOSITION
None received
COMMENTS
1. At the time the SBX8 34 was being researched, negotiated, and
written, a deliberate decision was made to limit its application
to solar thermal and photovoltaic renewable projects that were
applying for ARRA funds. A second consideration, of equal
import, was the recognition of the experimental and untried
nature of the advanced mitigation concept under CESA. Up until
the passage of SBX8 34, CESA required project applicants to
fully mitigate the impacts of their projects on a
project-specific basis. This new wrinkle in CESA is only three
months old. Several stakeholders who are involved in the
renewable energy siting process in the desert are concerned that
this approach not be expanded until there is a clear
demonstration that it is working effectively.
2. The bill required DFG to prepare an interim mitigation
strategy that was due 60 days after the effective date of this
act. The act became effective on March 22, 2010. Thus, the
interim mitigation strategy would have been due on or about May
22, but it has not yet been released to the public. Some
stakeholders are unhappy about the delay. DFG has indicated to
the Committee that a draft may be ready for circulation in about
two weeks. The draft has not been reviewed or approved by
federal agencies and DFG obviously has no control over how long
the federal process will take.
3. Additionally, several observers have informally noted that
both DFG and the CEC have workload management issues with the
renewable energy projects currently in the pipeline, especially
those that may receive ARRA funding and those that are eligible
for the advance mitigation program of the Padilla bill. These
problems are exacerbated by an ongoing hiring freeze and
furlough days.
4. Finally, there is no certainty that the funding provided to
DFG that was intended to fund the advance mitigation of the ARRA
projects would be adequate to fund an expanded suite of
projects.
PROCESS ISSUES.
The author is aware of the concerns reflected in these comments
and has requested an opportunity to continue working on them
with the administration, administrative agencies, and
stakeholders.
As the Committee is aware, this bill was amended into its
current form (from another topic) on June 3. This is the first
policy committee for the bill. The bill is double-referred to
Senate Energy and Utilities, as well as to Appropriations.
The author has agreed that he will not move the bill forward if
and when it becomes clear that the bill will not be successfully
negotiated.
The Committee may wish to consider whether the author's
agreement either to stop the bill at some future point if the
above matters are not resolved provide adequate assurances that
would allow the bill to move forward in its current form.
As another option, the Committee could allow the bill to move
forward with an understanding that the bill will come back to
the Committee if the issues are not resolved or if future
proposed amendments need further review.
SUPPORT
Clean Power Campaign
enXco Development Corporation
Solar Millennium
OPPOSITION
None Received