BILL ANALYSIS �
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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: ABX1 13 HEARING DATE: April 12, 2011
AUTHOR: V. Manuel Perez URGENCY: No
VERSION: As proposed to be amended CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Energy: renewable resources: endangered species:
environmental impact reports.
BACKGROUND AND EXISTING LAW
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
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when necessary to offset 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.
PROPOSED LAW
This bill makes several changes, both major and technical, to
existing law. Most significant are the proposed changes to the
fee structure that would apply to applicants seeking incidental
take permits for renewable energy projects in the DRECP.
1. This bill extends certain provisions of the SB 34 8X from
2010 to 2011. It also deletes the requirement that the renewable
energy project application was completed by the end of 2011 and
is eligible for ARRA (federal stimulus) funding and instead
requires that only one of those conditions is met.
2. The bill would update the agreed-upon geographic boundaries
of the Desert Renewable Energy Conservation Plan as amended in
agreements between state and federal agencies.
3. The bill would expand the authorized fee ($75,000) that DFG
collects from projects in the DRECP to all projects that are a
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part of the state's renewable portfolio standard program and
would make other changes in the fee structure, as follows:
a. The bill would reduce the fees paid to the department for its
actual costs when the department will issue a consistency
determination (that authorize take for protected species) that
it makes with respect to take authorizations made by federal
wildlife agencies.
b. The bill would reduce the minimum fee paid to the department
for incidental take permits from $75,000 to $50,000. It would
cap any additional increase in fees for complex projects at
$200,000.
c. The author intends to eliminate fees for incidental take
permits for projects for which the Energy Commission is the lead
agency. (See Comment 2.) This change will be reflected in Sec.
2099.10(d) in the next version of the bill.
4. For the advance mitigation program created in SB 34 8X, this
bill would expand the eligible projects to include wind and
geothermal projects.
5. The bill requires DFG to initiate, consistent with the
provisions of the existing Natural Communities Conservation
Planning Act, possible NCCPs in the San Joaquin valley as a
response to the likelihood of intense renewable energy
development in that region.
6. The bill would establish a $7 million fund, subject to
appropriation by the Legislatur, for renewable energy planning
grants to local jurisdictions.
7. The bill would also make a series of technical corrections
that have been identified as SB 34 X8 is implemented by the DFG
and the California Energy Commission that clarify the different
responsibilities of these two entities.
ARGUMENTS IN SUPPORT
Virtually all of the supporters listed below mentioned that the
expansion of the existing law to cover additional technologies,
the provision for local planning grants, and the anticipation
that the renewable energy development in the desert will help
alleviate high unemployment rates are what caused them to
support this bill.
ARGUMENTS IN OPPOSITION
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None received
COMMENTS
1. In discussions with the author and the Assembly leadership
staff, industry representatives, and conservation groups with
expertise in desert renewable energy siting issues, a series of
issues have been discussed that resulted in the recommended
amendments discussed below and that are in the mock-up. These
amendments generally revamp the fee structure so that the
minimum fee is reduced and the potential ceiling for more
complicated projects is increased and fees to the Energy
Commission are deleted in response to the new $750,000 for
projects that was adopted last year.
2. Specifically, the minimum fee for all RPS projects would be
decreased to $50,000 in recognition of the fact that a number of
smaller projects will take less department time to review and
permit. On the other hand, a number of larger projects have had
review costs exceed what is paid to the department. DFG reports
that some projects have cost more than $150,000. Under the
proposed amendment, DFG would be able to increase the fee based
on the complexity of the project up to a maximum additional fee
of $200,000.
In contrast, Energy Commission application fees for projects
within its jurisdiction that also involve endangered species
permitting are $750,000. This bill would eliminate any
additional fees charged by the Energy Commission for incidental
take permits and DFG's costs for such projects would be paid by
the Energy Commission through an existing inter-agency
agreement. The mock up does not reflect this change since it has
not yet been drafted but this summary accurately reflects the
author's intention.
The Committee should be aware that some industry representatives
are interested in a $25,000 base fee (instead of the proposed
$25,000 reduction to $50,000) and are probably opposed to the
higher optional maximum fee. Existing law does not establish a
cap for more complex projects.
DFG would collect the appropriate fee for new projects and for
other projects that are pending but not yet deemed complete.
For project applications that are deemed complete, the old fee
structure would apply.
The fee would be paid by the applicant prior to a final approval
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of the project. Apparently there are some project applicants who
have not paid their fee even though the project has been
approved.
3. The provision for a possible NCCP in the San Joaquin valley
currently states that one or more renewable energy developers
proposing to construct 2,000 megawatts of energy would be a
party to the planning agreement. It seems that if only one
renewable energy project developer were involved, the NCCP would
be created to accommodate a single project, which is not really
the purpose of an NCCP. A single project could either get a
project specific permit or participate in an NCCP in which
multiple developers of multiple projects are engaged. The
proposed amendment would require two or more such parties.
4. The proposed amendments would alter the grants program to
local governments by allowing a grant to be used for processing
renewable energy projects and would allow one percent of the
funds to be used to train county planning staff about siting and
permitting of renewable energy projects. The amendment would
also require an adopted renewable energy general plan element or
zoning ordinance to be consistent with an NCCP. This amendment
would also limit grants to counties within the DRECP area to
those counties who have signed on to the planning agreement.
There is also a new provision to give preference to counties
that have developed a geothermal element in their general plans.
That preference would apply to Imperial County, and perhaps also
to Sonoma County, staff is informed.
5. The amendments would also allow certain "covered activities"
within the DRECP-not just renewable power projects but related
infrastructure projects such as substations--to be eligible for
the advance mitigation program created in SB 34 X8.
6. Assuming the bill moves forward, the author is aware that the
Appropriations Committee may take a hard look at the planning
grants provision of the bill as it is proposed for amendment in
this analysis. The preference for counties with geothermal
elements in their general plans could be viewed as creating a
transparent district-oriented preference.
Similarly, the Appropriations Committee may be concerned about a
mandate to DFG to develop an NCCP. The normal process would be
for interested parties to approach DFG rather than for DFG to
approach the counties or the renewable energy developers.
SUPPORT
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Geothermal Energy Association
Independent Energy Producers
Noble and Company
Brawley Inn
Suneco Energy
Global ReEnergy
Natural Resources Defense Council
Imperial Valley College
OPPOSITION
None Received
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