Bill Text: CA AB3238 | 2023-2024 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

---

Bill Title: California Environmental Quality Act: electrical infrastructure projects.

Spectrum: Slight Partisan Bill (Democrat 9-4)

Status: (Engrossed) 2024-08-15 - In committee: Held under submission. [AB3238 Detail]

Download: California-2023-AB3238-Amended.html

---

Amended  IN  Assembly  April 17, 2024

Amended  IN  Assembly  April 08, 2024

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill

No. 3238

---

Introduced by Assembly Member Garcia
(Coauthors: Assembly Members Alvarez, Calderon, Juan Carrillo, Flora, Gipson, Mathis, Jim Patterson, Rodriguez, Weber, and Wood) Wallis, Weber, Wood, and Zbur)

February 16, 2024

---

An act to amend Sections 2080.1 and 2820 of, and to repeal and add Section 2826 of, Section 2820 of the Fish and Game Code, to add and repeal Section 21080.60 of the Public Resources Code, and to add and repeal Chapter 8.5 (commencing with Section 2845) of Part 2 of Division 1 of the Public Utilities Code, relating to public resources.

LEGISLATIVE COUNSEL'S DIGEST

AB 3238, as amended, Garcia. Electrical infrastructure projects: endangered species: natural community conservation plans.

(1)The California Endangered Species Act (CESA), except as authorized by the Director of Fish and Wildlife, generally prohibits the take of a species determined to be an endangered, threatened, or candidate species under the act. The CESA provides that no further authorization or approval from the director is necessary for a person who obtained an incidental take statement or an incidental take permit under the federal Endangered Species Act if the person provides to the director a copy of the incidental take statement or incidental take permit and the director determines that the incidental take statement or incidental take permit is consistent with the requirements of the act.

This bill would, for an electrical infrastructure project, as defined, require the director to publish a determination authorizing the incidental take of a species under the same terms and condition provided under federal law if the public utility undertaking the project has obtained an incidental take statement or incidental take permit under the federal act.

(2)

(1) The Natural Community Conservation Planning Act authorizes the Department of Fish and Wildlife to enter into agreements with any person or public entity for the purpose of preparing a natural community conservation plan to provide comprehensive management and conservation of multiple wildlife species, including those species listed as endangered or threatened under the CESA. California Endangered Species Act (CESA). The CESA requires the department, before approving the plan, to make specific findings and requires an approved plan to include an implementation agreement that contains, among other things, provisions specifying procedures for the amendment of the plan and the implementation agreement.

This bill would require the department, when considering a request to amend an approved natural community conservation plan, to limit its review to any species listed under CESA that were not previously considered in the approved plan and any new activities that would result in new or more substantial impacts to covered species than previously identified in the approved plan. The bill would also require the department, when considering the request, to establish a rebuttable presumption that the mitigation and conservation measures provided in the previously approved plan have been or are being successfully implemented, and to only impose new mitigation and conservation measures that are necessary to address potential impacts to any newly listed species under CESA or any new or more substantial impacts to covered species under the plan.

(3)

(2) The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The CEQA exempts certain projects from its requirements, including actions necessary to prevent or mitigate an emergency.

This bill would exempt from the CEQA the approval of an amendment to a natural community conservation plan that adds additional conservation measures, and amended permits or authorizations associated with the amendment.

This bill would, until January 1, 2035, exempt from CEQA projects for the expansion of an existing public right-of-way across state-owned land to accommodate the construction, expansion, modification, or update of electrical infrastructure, as defined. By requiring a lead agency to determine the applicability of those exemptions to a project, the bill would impose a state-mandated local program.

(4)

(3) Existing law prohibits an electrical corporation from beginning the construction of a line, plant, or system, or extensions of those facilities without first having to obtain from the Public Utilities Commission a certificate that the present or future convenience and necessity require or will require the construction. Existing law specifies that the certificate is not required for the extension, expansion, upgrade, or other modification of existing electrical transmission facilities.

This bill would vest the commission with the exclusive power to approve and site necessary electrical infrastructure projects, as defined. The bill would, except as provided, specify that the approval and siting by the commission of a necessary electrical infrastructure project is in lieu of any approval, concurrence permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by the federal law, for the use of the site and related facilities. The bill would include findings that these changes address a matter of statewide concern rather than a municipal affair and, therefore, apply to all cities, including charter cities.

The bill would, for electrical infrastructure projects, designate the commission as the lead agency for purposes of the CEQA, would require the commission to prescribe procedures for the preparation of the appropriate environmental review document for those projects, and would specify the manner in which the environmental review for those projects is to be conducted.

The bill would repeal these provisions on January 1, 2035.

(5)

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

---

Bill Text

The people of the State of California do enact as follows:

SECTION 1.Section 2080.1 of the Fish and Game Code is amended to read:

2080.1.

(a)Notwithstanding any other provision of this chapter, or Chapter 10 (commencing with Section 1900) or Chapter 11 (commencing with Section 1925) of Division 2, but subject to subdivision (c), if a person obtains from the United States Secretary of the Interior or the United States Secretary of Commerce an incidental take statement pursuant to Section 7 of the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1536) or an incidental take permit pursuant to Section 10 of that federal act (16 U.S.C. Sec. 1539) that authorizes the taking of an endangered species or a threatened species that is listed pursuant to Section 4 of that federal act (16 U.S.C. Sec. 1533) and that is an endangered species, threatened species, or a candidate species pursuant to this chapter, no further authorization or approval is necessary under this chapter for that person to take that endangered species, threatened species, or candidate species identified in, and in accordance with, the incidental take statement or incidental take permit, if that person does all of the following:

(1)Notifies the director in writing that the person has received an incidental take statement or an incidental take permit issued pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).

(2)Includes in the notice to the director a copy of the incidental take statement or incidental take permit.

(3)Includes with the notice payment of the permit application fee required pursuant to Section 2081.2.

(b)Upon receipt of the notice specified in paragraph (1) of subdivision (a), the director shall immediately have published in the General Public Interest section of the California Regulatory Notice Register the receipt of that notice.

(c)(1)Within 30 days after the director has received the notice described in subdivision (a) that an incidental take statement or an incidental take permit has been issued pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the director shall determine whether the incidental take statement or incidental take permit is consistent with this chapter. If the director determines within that 30-day period, based on substantial evidence, that the incidental take statement or incidental take permit is not consistent with this chapter, then the taking of that species may only be authorized pursuant to this chapter.

(2)Notwithstanding paragraph (1) or any other law, for an electrical infrastructure project, if a public utility, as defined in Section 216 of the Public Utilities Code, has obtained from the United States Secretary of the Interior or the United States Secretary of Commerce an incidental take statement or incidental take permit under the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the director shall publish a determination authorizing the incidental take of the species listed as endangered, threatened, or a candidate species under the same terms and conditions as provided under federal law within 30 days after the director has received the notice described in subdivision (a).

(3)For purposes of this subdivision, “electrical infrastructure project” means a project for the construction and operation of an electrical transmission line and associated infrastructure, including substations and ancillary facilities.

(d)The director shall immediately publish the determination pursuant to subdivision (c) in the General Public Interest section of the California Regulatory Notice Register.

(e)Unless deleted or extended by a later enacted statute that is chaptered before the date this section is repealed, this section shall remain in effect only until, and is repealed on, the effective date of an amendment to Section 7 or Section 10 of the federal Endangered Species Act of 1973 (16 U.S.C. Secs. 1536 and 1539) that alters the requirements for issuing an incidental take statement or an incidental take permit, as applicable.

SEC. 2.SECTION 1.

 Section 2820 of the Fish and Game Code is amended to read:

2820.

 (a) The department shall approve a natural community conservation plan for implementation after making all of the following findings, based on substantial evidence in the record:

(1) The plan has been developed consistent with the process identified in the planning agreement entered into pursuant to Section 2810.

(2) The plan integrates adaptive management strategies that are periodically evaluated and modified based on the information from the monitoring program and other sources, which will assist in providing for the conservation of covered species and ecosystems within the plan area.

(3) The plan provides for the protection of habitat, natural communities, and species diversity on a landscape or ecosystem level through the creation and long-term management of habitat reserves or other measures that provide equivalent conservation of covered species appropriate for land, aquatic, and marine habitats within the plan area.

(4) The development of reserve systems and conservation measures in the plan area provides, as needed for the conservation of species, all of the following:

(A) Conserving, restoring, and managing representative natural and seminatural landscapes to maintain the ecological integrity of large habitat blocks, ecosystem function, and biological diversity.

(B) Establishing one or more reserves or other measures that provide equivalent conservation of covered species within the plan area and linkages between them and adjacent habitat areas outside of the plan area.

(C) Protecting and maintaining habitat areas that are large enough to support sustainable populations of covered species.

(D) Incorporating a range of environmental gradients (such as slope, elevation, aspect, and coastal or inland characteristics) and high habitat diversity to provide for shifting species distributions due to changed circumstances.

(E) Sustaining the effective movement and interchange of organisms between habitat areas in a manner that maintains the ecological integrity of the habitat areas within the plan area.

(5) The plan identifies activities, and any restrictions on those activities, allowed within reserve areas that are compatible with the conservation of species, habitats, natural communities, and their associated ecological functions.

(6) The plan contains specific conservation measures that meet the biological needs of covered species and that are based on the best available scientific information regarding the status of covered species and the impacts of permitted activities on those species.

(7) The plan contains a monitoring program.

(8) The plan contains an adaptive management program.

(9) The plan includes the estimated timeframe and process by which the reserves or other conservation measures are to be implemented, including obligations of landowners and plan signatories and consequences of the failure to acquire lands in a timely manner.

(10) The plan ensures adequate funding to carry out the conservation actions identified in the plan.

(b) A natural community conservation plan approved pursuant to this section shall include an implementation agreement that contains all of the following:

(1) Provisions defining species coverage, including any conditions of coverage.

(2) Provisions for establishing the long-term protection of any habitat reserve or other measures that provide equivalent conservation of covered species.

(3) Specific terms and conditions that, if violated, would result in the suspension or revocation of the permit, in whole or in part. The department shall include a provision requiring notification to the plan participant of a specified period of time to cure any default before suspension or revocation of the permit in whole or in part. These terms and conditions shall address, but are not limited to, provisions specifying the actions the department shall take under all of the following circumstances:

(A) If the plan participant fails to provide adequate funding.

(B) If the plan participant fails to maintain the rough proportionality between impacts on habitat or covered species and conservation measures.

(C) If the plan participant adopts, amends, or approves any plan or project without the concurrence of the wildlife agencies that is inconsistent with the objectives and requirements of the approved plan.

(D) If the level of take exceeds that authorized by the permit.

(4) Provisions specifying procedures for amendment of the plan and the implementation agreement.

(5) Provisions ensuring implementation of the monitoring program and adaptive management program.

(6) Provisions for oversight of plan implementation for purposes of assessing mitigation performance, funding, and habitat protection measures.

(7) Provisions for periodic reporting to the wildlife agencies and the public for purposes of information and evaluation of plan progress.

(8) Mechanisms to ensure adequate funding to carry out the conservation actions identified in the plan.

(9) Provisions to ensure that implementation of mitigation and conservation measures on a plan basis is roughly proportional in time and extent to the impact on habitat or covered species authorized under the plan. These provisions shall identify the conservation measures, including assembly of reserves where appropriate and implementation of monitoring and management activities, that will be maintained or carried out in rough proportion to the impact on habitat or covered species and the measurements that will be used to determine if this is occurring.

(c) If a plan participant does not maintain the proportionality between take and conservation measures specified in the implementation agreement and does not either cure the default within 45 days or enter into an agreement with the department within 45 days to expeditiously cure the default, the department shall suspend or revoke the permit, in whole or in part.

(d) Any data and reports associated with the monitoring program required by this section shall be available for public review. The entity managing the plan shall also conduct public workshops on an annual basis to provide information and evaluate progress toward attaining the conservation objectives of the plan.

(e) To the extent provided pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code and any guidelines adopted pursuant to that division, if the impacts on one or more covered species and its habitat are analyzed and mitigated pursuant to a program environmental impact report for a plan adopted pursuant to this chapter, a plan participant that is a lead agency or a responsible agency under that division shall incorporate in the review of any subsequent project in the plan area the feasible mitigation measures and alternatives related to the biological impacts on covered species and their habitat developed in the program environmental impact report.

(f) The department may provide assurances for plan participants commensurate with long-term conservation assurances and associated implementation measures pursuant to the approved plan.

(1) When providing assurances pursuant to this subdivision, the department’s determination of the level of assurances and the time limits specified in the implementation agreement for assurances may be based on localized conditions and shall consider all of the following:

(A) The level of knowledge of the status of the covered species and natural communities.

(B) The adequacy of analysis of the impact of take on covered species.

(C) The use of the best available science to make assessments about the impacts of take, the reliability of mitigation strategies, and the appropriateness of monitoring techniques.

(D) The appropriateness of the size and duration of the plan with respect to quality and amount of data.

(E) The sufficiency of mechanisms for long-term funding of all components of the plan and contingencies.

(F) The degree of coordination and accessibility of centralized data for analysis and evaluation of the effectiveness of the plan.

(G) The degree to which a thorough range of foreseeable circumstances are considered and provided for under the adaptive management program.

(H) The size and duration of the plan.

(2) If there are unforeseen circumstances, additional land, water, or financial compensation or additional restrictions on the use of land, water, or other natural resources shall not be required without the consent of plan participants for a period of time specified in the implementation agreement, unless the department determines that the plan is not being implemented consistent with the substantive terms of the implementation agreement.

(g) (1) When considering a request to amend an approved natural community conservation plan, the department shall limit its review to both of the following:

(A) Any new species listed pursuant to Article 2 (commencing with Section 2070) of Chapter 1.5 that were not previously considered in the approved plan.

(B) Any new activities that would result in new or more substantial impacts to covered species than previously identified in the approved plan.

(2) When considering a request described in paragraph (1), the department shall establish a rebuttable presumption that the mitigation and conservation measures provided in the approved plan have been or are being successfully implemented, and shall only impose new mitigation and conservation measures that are necessary to address potential impacts to species identified pursuant to subparagraph (A) of paragraph (1) or any new or more substantial impacts to covered species identified pursuant to subparagraph (B) of paragraph (1).

SEC. 3.Section 2826 of the Fish and Game Code is repealed.

SEC. 4.Section 2826 is added to the Fish and Game Code, to read:

2826.

(a)For purposes of this section, “additional conservation measures” shall mean any provisions, actions, operational protocols, or requirements that enhance or supplement the existing conservation measures specified in a natural community conservation plan that is being amended.

(b)Division 13 (commencing with Section 21000) of the Public Resources Code does not apply to the approval of an amendment to a natural community conservation plan that adds additional conservation measures, and amended permits or authorizations associated with the amendment.

SEC. 5.SEC. 2.

 Section 21080.60 is added to the Public Resources Code, to read:

21080.60.

 (a) This division does not apply to the expansion of an existing right-of-way across a state-owned land to accommodate the construction, expansion, modification, or update of an electrical infrastructure project, as defined in Section 2845 of the Public Utilities Code.

(b) This section shall remain in effect only until January 1, 2035, and as of that date is repealed.

SEC. 6.SEC. 3.

 Chapter 8.5 (commencing with Section 2845) is added to Part 2 of Division 1 of the Public Utilities Code, to read:

CHAPTER  8.5. Electrical Infrastructure Projects

Article  1. Definitions

2845.

 For purposes of this chapter, the following definitions apply:

(a) “Applicant” means the entity proposing an electrical infrastructure project.

(b) “California Environmental Quality Act” or “CEQA” means Division 13 (commencing with Section 21000) of the Public Resources Code and guidelines adopted pursuant to that division.

(c) “Electrical infrastructure project” or “project” means a project for the construction and operation of an electrical transmission line and associated infrastructure, including substations and ancillary facilities.

(d) “Resources agency” means the State Lands Commission, the San Francisco Bay Conservation and Development Commission, the Department of Fish and Wildlife, the California Coastal Commission, or any local authorities delegated authority under the California Coastal Act (Division 20 (commencing with Section 30000) of the Public Resources Code), or the State Water Resources Control Board or the applicable regional water quality control boards.

Article  2. General Provisions

2845.10.

 (a) For an electrical infrastructure project, the commission is the lead agency for purposes of compliance with CEQA.

(b) The commission shall prescribe procedures for the preparation by the applicant of an environmental impact report, negative declaration, mitigation negative declaration, addendum, or analysis of the applicability of an exemption from CEQA, under the supervision of the commission. The commission may provide the applicant with appropriate guidance and assist in its preparation. The commission shall independently evaluate the appropriateness of the environmental document prepared and shall take responsibility for the contents.

(c) (1) In lieu of an initial study prepared pursuant to subdivision (c) of Section 21080 of the Public Resources Code, or a proponent’s environmental assessment, an applicant may elect to prepare and submit with its application an administrative draft of an environmental impact report, mitigated negative declaration, negative declaration, addendum, or draft analysis of the applicability of an exemption from CEQA.

(2) In using its independent judgment to determine whether a project is exempt from CEQA and, if not, whether the project may have a significant impact necessitating the preparation of an environmental impact report, the commission shall use the document submitted pursuant to paragraph (1).

(d) In reviewing an electrical infrastructure project pursuant to CEQA, a resource agency shall only consider an environmental effect of the project that occurs within the resources agency’s jurisdiction and is subject to the resources agency’s discretionary approval related to the project.

2845.11.

 An application for an electrical infrastructure project shall be in a form prescribed by the commission and shall be supported by information as the commission may require to support the preparation of an environmental impact report, mitigated negative declaration, negative declaration, or addendum, pursuant to CEQA, or analysis of the applicability of an exemption from CEQA and authorization of the electrical infrastructure project pursuant to this chapter.

2845.12.

 (a) (1) For an electrical infrastructure project located in the geographic jurisdiction of the San Francisco Bay Conservation and Development Commission, the commission shall consult with the San Francisco Bay Conservation and Development Commission to coordinate the processing and sequencing of the applications to expedite the permitting process.

(2) In the Suisun Marsh Secondary Management Area and the portions of the Primary Management Area with a local protection program, the San Francisco Bay Conservation and Development Commission shall assume permitting authority for processing and issuing marsh development permits using the local protection programs as guidance.

(b) The San Francisco Bay Conservation and Development Commission, the State Water Resources Control Board, or the applicable regional water quality control board, as applicable, shall take final action on the electrical infrastructure project within 90 days of the commission’s approval of the electrical infrastructure project, if the applicant has filed a complete, final application for a permit or waste discharge requirement, as applicable, with those agencies before the approval by the commission.

2845.13.

 (a) No later than 270 days after the commission determines that an application for an electrical infrastructure project is complete, or as soon as practicable thereafter, the commission shall determine whether to certify the environmental report, adopt a negative declaration, mitigated negative declaration, or an addendum, or determine that the project is exempt from CEQA, and approve the project.

(b) The time period specified in subdivision (a) may be extended if any of the following occurs:

(1) The commission is required to recirculate the environmental impact report pursuant to Section 15088.5 of Title 14 of the California Code of Regulations.

(2) Substantial changes are proposed in the project that may involve new significant environmental effects or a substantial increase in the severity of previously identified significant effects.

(3) Substantial changes occur with respect to the circumstances under which the project is undertaken that may involve new significant environmental effects or a substantial increase in the severity of previously identified significant effects.

(4) New information of substantial importance, that was not known and could not have been known with the exercise of reasonable diligence before the commission publishes the notice of availability, is submitted that may require additional analysis and consideration.

(5) The commission, in consultation with the Department of Fish and Wildlife or the State Water Resources Control Board, if applicable, determines that additional time is necessary to obtain information and conduct surveys, including due to seasonal constraints.

2845.14.

 For electrical infrastructure projects that have been approved by the Independent System Operator in a transmission plan prepared pursuant to the Independent System Operator’s Federal Energy Regulatory Commission tariff, all of the following apply:

(a) The statement of objectives sought by the project, including the underlying purpose and project benefits, required by CEQA, including Section 15124 of Title 14 of the California Code of Regulations, shall be those identified by the Independent System Operator’s approved transmission plan.

(b) In addition to a no-project alternative, the range of reasonable alternatives considered as required by Section 21081 of the Public Resources Code and Section 15124 of Title 14 of the California Code of Regulations shall be alternative routes or locations for the construction of the project approved in the relevant Independent System Operator’s approved transmission plan.

(c) Any statement of overriding considerations required by Section 15093 of Title 14 of the California Code of Regulations shall be those identified by the Independent System Operator’s approved transmission plan prepared pursuant to the Independent System Operator’s Federal Energy Regulatory Commission tariff. For purposes of Section 21081 of the Public Resources Code, a rebuttable presumption that there is an overriding economic, legal, social, technological, or other benefit of the project that outweighs the significant effect on the environment is established if the project has been identified an approved by the Independent System Operator in a transmission plan.

2845.15.

 Section 1002.3 and subparagraph (D) of paragraph (2) of subdivision (a) of Section 1005.1 do not apply to any application filed pursuant to Section 1001 or for any other approval of the electrical infrastructure project.

Article  3. Necessary Electrical Infrastructure Projects

2846.

 For purposes of this article, “necessary electrical infrastructure project” means an electrical infrastructure project that meets either of the following:

(a) The project has been approved by the Independent System Operator in a transmission plan prepared pursuant to the Independent System Operator’s Federal Energy Regulatory Commission tariff.

(b) The project is necessary to serve either of the following:

(1) An actual or forecasted electrical demand increase associated with transportation electrification or building electrification.

(2) A distributed energy project, energy storage project, or renewable generation source, where the electrical line facilities or substation would support the interconnection of the project or source to the electrical grid.

2846.1.

 (a) (1) (A) Except as provided in paragraph (2), the commission shall have the exclusive power to approve and site a necessary electrical infrastructure project.

(B) The approval and siting pursuant to this section shall be in lieu of any approval, concurrence, permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by federal law, for the use of the site and related facilities, and shall supersede any applicable statute, ordinance, or regulation of any state, local, or regional agency, or federal agency to the extent permitted by federal law.

(2) Paragraph (1) does not apply to the authority of the State Lands Commission to require leases and receive lease revenues, if applicable, or the San Francisco Bay Conservation and Development Commission, the State Water Resources Control Board, or the applicable regional water quality control boards.

(b) The Legislature finds and declares that this section addresses a matter of statewide concern rather than a municipal affair as that term is used in Section 5 of Article XI of the California Constitution. Therefore, this section applies to all cities, including charter cities.

Article  4. Repeal

2847.

 This chapter shall remain in effect only until January 1, 2035, and as of that date is repealed.

SEC. 7.SEC. 4.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.