SB 226 exempts rooftop solar from CEQA review; SB 267 exempts photovoltaic and wind projects from having to prepare water supply assessments

SB 226 (Simitian) offers a package of amendments to existing law, three of which are related to renewable energy. The first of these creates a statutory exemption from CEQA for rooftop and parking lot solar installations under 500 square feet.⁷ However, since these structures are arguably already categorically exempt under CEQA (as either additions to existing structures,⁸ construction of small structures,⁹ or accessory structures,¹⁰ depending on the nature of the installation), this is likely to benefit only a small set of projects relative to existing law. Under the existing categorical exemptions, projects would lose the use of an exemption if they fell within any of the enumerated exceptions (that is, if the project is located in a sensitive environment, has a cumulative impact or significant effect, harms scenic resources within a scenic highway, causes substantial adverse impacts to historical resources, or is a hazardous waste facility¹¹). Under the new statutory exemption, photovoltaic or wind projects qualifying for the statutory exemption under SB 226 would only be ineligible for the exemption if they fall within one of the statutory exceptions, which SB 226 lists as impacting waterways, wetlands, or endangered species that would trigger requirements for permits under the Clean Water Act, Porter Cologne Act, either federal or California Endangered Species Acts, or a streambed alteration permit.¹² Thus, the narrower list of exceptions could help a small subset of these renewable installations, such as those on historic buildings, along scenic highways or on hazardous waste facilities.

Another component of SB 226 is a new paragraph of CEQA, which provides that a project’s greenhouse gas emissions alone may not disqualify it for categorical exemption if the project is consistent with a local, regional or statewide greenhouse gas emissions plan.¹³ This provision likely has limited effect on renewable projects, which to date, have been able to show that they reduce greenhouse gas emissions over the life of the project, as they generally replace older, more polluting power plants. Finally, a third component of SB 226 offers real benefits to projects that have already been through the California Energy Commission environmental review process, but then change their technology to photovoltaic – a technology over which the California Energy Commission normally has no siting jurisdiction. For these projects, SB 226 clarifies that the Energy Commission may retain jurisdiction.¹⁴ While this would apply only to a handful of projects directly, it eliminates a huge permitting uncertainty for those projects and may suggest that the legislature has some appetite to allow utility scale photovoltaic plants to use the same “one-stop shop” Energy Commission permitting available to solar thermal power plant proponents.

SB 267 (Rubio) provides an exemption from renewable projects subject to CEQA that might otherwise be interpreted to require the preparation of a water supply assessment. The bill eliminates an uncertainty raised by Center for Biological Diversity v. County of San Bernardino (2010) 185 Cal.App.4th 866, a case which held that outdoor industrial facilities occupying more than 40 acres of land meet the California Water Code definition of a project requiring preparation of a water supply assessment, even where water use was negligible.¹⁵ To counter that case, SB 267 clarifies that solar photovoltaic and wind energy projects are exempt from the requirement, provided they demand no more than 75 acre-feet of water per year.¹⁶