BILL NUMBER: SB 16 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 29, 2011
AMENDED IN SENATE FEBRUARY 15, 2011
INTRODUCED BY Senator Rubio
DECEMBER 6, 2010
An act to add Sections 2069.5 and 2099.7 to the Fish and Game
Code, relating to energy, and declaring the urgency thereof, to take
effect immediately.
LEGISLATIVE COUNSEL'S DIGEST
SB 16, as amended, Rubio. Renewable energy: Department of Fish and
Game: expedited permitting.
(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 resulting from certain solar thermal
and photovoltaic powerplants in the planning area of the Desert
Renewable Energy Conservation Plan.
Existing law requires the department to collect, and requires the
owner or developer of certain solar thermal powerplants or
photovoltaic powerplants to pay, a one-time permit application fee of
$75,000. 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 require the department to collect a permit
application fee of $75,000 from the owner or developer of an eligible
renewable energy project to support the department's permitting and
review of the project, as provided. The bill would require
the Energy Commission to provide $75,000 to the department from
revenues created from application fees received by the commission for
each permit application for a project funded under the American
Recovery and Reinvestment Act of 2009 for which the commission has
entered into an agreement with the department for the review of the
impacts of the project on fish and wildlife.
The bill would require the department to notify
provide written notification to an applicant for an
incidental take permit for an eligible renewable energy project
when within 10 days after the department has
determined that the application is complete, and require the
department to approve or reject an incidental take permit application
for an eligible renewable energy project in 90 days or less ,
or within 150 days for certain projects . The bill,
until January 1, 2015, would authorize the department to enter into a
contract with a private entity for the review necessary to issue an
incidental take permit for an eligible project, as provided.
The bill would require the department to provide an
accounting to the Legislature on incidental take permit applications
for eligible renewable energy projects, and to report to the
Legislature on the extent to which it arranges for entities other
than itself to provide all or part of the environmental review of
eligible renewable energy projects.
(2) This bill would declare that it is to take effect immediately
as an urgency statute.
Vote: 2/3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) It is important to facilitate the permitting of renewable
energy projects that are eligible renewable energy resources under
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), including expediting
the scientific evaluation by the Department of Fish and Game of the
wildlife impacts of those projects with special attention to the
impacts on threatened and endangered species.
(b) In imposing statutory deadlines on the review of these
projects, it is important not only for the department to respond more
efficiently, but also important for project proponents to submit
accurate information from which the department can commence a
complete review without being required to obtain further information
in a piecemeal manner.
(c) Existing law provides a timeline of 30 days for the department
to determine whether an application for an incidental take permit is
complete and 120 days to approve or reject the application. In
practice, if an application is considered incomplete, applications
are routinely amended or resubmitted and therefore there is no
incentive for applicants to submit a timely, complete application.
(d)
(c) It is reasonable to expect the department to
expedite its decisionmaking in order to help achieve the renewable
energy goals of the state and create jobs.
(e)
(d) The Legislature expects that the department may be
inundated with more than 150 300
applications for renewable energy projects in this calendar year
because of the increasing interest in renewable energy projects and
because of the investment and tax provisions contained in state and
federal law. It is important to give each of those applications fair
consideration by the department and absent the provisions of this act
the department will simply be unable to adequately review these
applications.
(e) It is the intent of the Legislature to monitor closely the
performance of the department in implementing this act. It is further
the intent of the Legislature that the department use, upon
appropriation by the Legislature, a small portion of the fees
submitted to it by renewable energy applicants to provide the
Legislature with an accounting of the department's review and
decisionmaking process for these permit applications, to evaluate
whether the process has been carried out as efficiently and as
effectively as possible and in furtherance of the department's
statutory responsibilities.
(f) It is further the intent of the Legislature to reevaluate the
performance of the department in two years, and, if necessary, to
consider whether there is a need to enact legislation that would
provide incentives for timely permit decisions by requiring the
department to refund a portion of permit fees in the event that the
department failed to meet permit decisionmaking deadlines.
SEC. 2. Section 2069.5 is added to the Fish and Game Code, to
read:
2069.5. (a) The 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 Divis ion 1 of the Public Utilities Code).
(b) The department shall
notify provide written notification to an
applicant for an incidental take permit for an eligible project
when within 10 days after the department has
determined that the application is complete.
(b)
(c) The department shall approve or reject an
incidental take permit application for an eligible project in 90 days
or less from the date the application was deemed complete ,
except for projects that the department determines are
eligible to obtain an incidental take permit pursuant to Section
2080.1, in which case the department shall approve or reject an
incidental take permit application for these projects within 150 days
after the application was deemed complete .
(c) To the extent permitted by state law, the department, until
January 1, 2015, may enter into a contract with a private entity for
the review necessary to issue an incidental take permit for an
eligible project, if the number of applications for an incidental
take permit exceeds 40 at any one time. A review undertaken by a
private entity pursuant to this subdivision shall be approved by the
director. Nothing in this subdivision expressly or impliedly reduces
the authority of the department to review applications for incidental
take permits. The department shall report quarterly to the
appropriate policy and appropriation committees of the Legislature on
expenditures made pursuant to this subdivision.
(d) For purposes of this section, an "eligible project" means an
eligible renewable energy resource, as defined in the California
Renewables Portfolio Standard (Article 16 (commencing with Section
399.11) of Chapter 2.3 of Part 1 of Division 1 of the Public
Utilities Code).
(d) (1) By January 1, 2014, the department shall provide an
accounting to the Legislature on incidental take permit applications
for eligible projects. This accounting shall include, but shall not
be limited to, all of the following:
(A) The number of applications that have been received.
(B) The number of applications that have been approved, rejected,
or withdrawn.
(C) The type and nature of the incidental take permits sought,
including, but not limited to, the number of acres in each permit,
the location of the project, the list of endangered or threatened
species and whether the species were state or federally listed, the
land ownership, the other permits involved in the project during the
permit review period and which agencies were involved, and any
relevant special resource issues.
(D) The time that elapsed between when a permit was deemed
complete and when it was approved, if the permit was approved.
(E) The staff time spent on each permit.
(F) Other information determined by the department to be relevant
in assessing whether the permit approval process, including the
deadlines prescribed by this section, provide for an efficient review
process in furtherance of the department's statutory obligations.
(2) By January 1, 2012, and annually thereafter for two years
until 2014, the department shall report to the Legislature on the
extent to which it arranges for entities other than itself to provide
all or part of the environmental review of eligible projects. The
2014 report may be combined with the report described in paragraph
(1).
(3) A report to be submitted pursuant to this subdivision shall be
submitted in compliance with Section 9795 of the Government Code.
(4) Pursuant to Section 10231.5 of the Government Code, this
subdivision is inoperative on January 1, 2016.
SEC. 3. Section 2099.7 is added to the Fish and Game Code, to
read:
2099.7. (a) (1) The department shall collect a permit application
fee from the owner or developer of an eligible project to support
the department's permitting and review of the eligible project. The
owner or developer of a proposed eligible project shall pay a
one-time permit application fee of seventy-five thousand dollars
($75,000) to the department that shall be applied to the department's
services in reviewing that application. The fee shall be assessed
for all applications filed with the department on and after January
1, 2011.
(2) If the application described in paragraph (1) is incomplete,
the applicant may remedy any specific deficiencies identified by the
department and for each separate reapplication it shall submit an
additional application fee of ____ ($____).
(3) For purposes of this subdivision, an "eligible project" means
an eligible renewable energy resource, as defined in the California
Renewables Portfolio Standard (Article 16 (commencing with Section
399.11) of Chapter 2.3 of Part 1 of Division 1 of the Public
Utilities Code).
(b) The State Energy Resources Conservation and Development
Commission shall provide seventy-five thousand dollars ($75,000) to
the department from revenues created from application fees received
by the commission for each permit application for a project funded
under the American Recovery and Reinvestment Act of 2009 (Public Law
111-5) for which the commission has entered into an agreement with
the department for the review of the impacts of the project on fish
and wildlife.
2099.7. (a) 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) The department shall collect a permit application fee from the
owner or developer of an eligible project to support its permitting
and review of eligible projects pursuant to this chapter. Except as
provided in subdivision (d), the owner or developer of a proposed
eligible project shall pay a one-time permit application fee of
seventy-five thousand dollars ($75,000) to the department.
(c) The department shall collect the permit application fee, at
the time the owner or developer submits its permit application or,
for eligible projects for which an application has already been
submitted, on or before January 30, 2012. The department shall
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 subdivision (b) of Section 2081 and Section 2080.1. If
the permit application fee is insufficient to complete permitting
work due to the complexity of a project or timeline delays, the
department may collect an additional fee from the owner or developer
to pay for its actual costs, not to exceed an additional seventy-five
thousand dollars ($75,000).
(d) Notwithstanding subdivisions (b) and (c), 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.
(e) The fees shall be deposited in the Fish and Game Preservation
Fund, and shall be eligible for expenditure by the department, upon
appropriation by the Legislature.
SEC. 4. This act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into immediate
effect. The facts constituting the necessity are:
In order to expedite permitting of needed renewable energy
projects as soon as possible, it is necessary for this act to take
effect immediately.