A trio of bills – AB X1 13 (Perez), SB 16 (Rubio) and SB 618 (Wolk) – work together to simplify required mitigation and to expedite endangered species review for certain RPS-eligible renewable energy projects. Generally, under CESA, the Department of Fish and Game (DFG) may authorize projects that will “take” threatened, endangered or candidate species, but only after the project has “fully mitigated” its impacts to the potentially-affected species. Mitigation often requires purchase of large swaths of habitat in fee or by conservation easement, and such transaction costs can be exorbitant and result in dispersed and uncoordinated preservation. Last year, California adopted a limited fix that allowed a small number of large-scale solar thermal and photovoltaic projects in the planning area of California’s Desert Renewable Energy Conservation Plan (DRECP) that qualified for stimulus funding to mitigate by paying in lieu fees to DFG.17 AB X1 13 expands this option to apply to wind and geothermal power plants within the DRECP planning area; the program is no longer limited to projects seeking stimulus funding.18 Any developer who chooses this approach would pay a fee, proportional to the impact caused by the project, into a fund that is used to support the mitigation actions developed by DFG.19 Additionally, the bill standardizes permit processing fees charged by DFG for incidental take permits, based on project size and authorizes the California Energy Commission to provide up to $7 million in grants to the eight San Joaquin Valley counties to update policies such as general plans, zoning ordinances, or natural community conservation plans to encourage renewable energy development.20
As a companion bill to AB X1-13, SB 16 provides for procedures for DFG to assist developers of RPS-eligible projects to submit timely and complete applications for incidental take permits.21 (Note: SB 16 applies to all RPS-eligible projects, rather than the limited set covered under AB X1 13.) The bill requires that DFG respond to applications within 45 days, and if the application is incomplete, DFG is required to identify the specific missing information and notify the applicant. Once the application is complete, DFG must render a determination on complete applications within 60 days.22
Finally, SB 618 provides a path for a formerly vexing problem in California: how to obtain coverage for a project that may take a California “fully protected species.”23 SB 618 expands the scope of the Natural Community Conservation Planning Act to allow the issuance of a take permit for fully protected species through a Natural Community Conservation Plan (NCCP). Although this provision does not expressly grant benefits to renewable energy projects, the expanded take permit authority comes at an important time, because the DCREP, which is an NCCP, is currently under development and would be able to incorporate take authorization for fully protected species for the renewable projects covered under that plan.