NEPA, CEQA and the Renewable Energy Boom Implications for Joint Compliance Defenders of Wildlife

title here text here Overview Comparison of relevant NEPA and CEQA requirements. Discussion of issues with joint compliance Two case studies: Ivanpah Solar Thermal Generating System and Calico Energy Solar Farm.

Defenders of Wildlife title here text here Differences Between NEPA and CEQA NEPACEQA Environmental ImpactsAgency decisions must be founded on a reasoned evaluation of the relevant factors. *Procedural requirement only. Direct and indirect significant effects of the project on the environment must be clearly identified and described, giving consideration to both the short-term and long-term effects. *Agency must respond pursuant to CEQA Guidelines, section 15002(h). MitigationAgencies must include a discussion of the means to mitigate adverse environmental impacts of projects. 40 C.F.R. § (h). Agencies must adopt feasible mitigation measures (or feasible alternatives) in order to substantially lessen or avoid significant impacts. AlternativesEIS must devote substantial treatment to each alternative and rigorously evaluate all reasonable alternatives, including the proposed action, in a comparative form. Alternatives must be discussed in “meaningful detail”.

Defenders of Wildlife title here text here Differences Between NEPA and CEQA (Cont’d) Procedural Requirements  Generally no public review needed for FONSI.  Public review requirement for Negative Declaration. Public Comment45 days is required for a draft EIS. BLM has allowed 90 days for renewable projects on public land. 45 days is required for a draft EIR published by a state agency. Interagency ConsultationThe EIS should be drafted in conjunction with other agency permitting procedures. The EIR should be drafted in conjunction with other agency permitting procedures.

Defenders of Wildlife title here text here NEPA and CEQA Joint Compliance The environmental document will satisfy the requirements of both NEPA and CEQA. State and federal agencies jointly draft and release a DEIR/DEIS, follow the requisite procedural requirements, and ultimately release an FEIR/FEIS.

Defenders of Wildlife title here text here Problems with Joint Compliance NEPA and CEQA have differing procedural timelines – public comment, interagency consultation, etc… NEPA and CEQA have differing substantive requirements – alternatives, mitigation, etc… NEPA and CEQA differ in definition of scope of environmental impacts. Removal, translocation or relocation of listed species requires approval of wildlife agency (usually only USFWS).

Defenders of Wildlife title here text here Renewable Energy Projects in California Executive Order S Retail sellers of electricity shall serve 33 percent of their load with renewable energy by Over 50 ARRA-eligible “fast-track” projects are proposed in California, ranging from a few hundred acres to 10,000 acres. Around 200 total renewable projects are proposed in California.

Defenders of Wildlife title here text here State Jurisdiction California Energy Commission (“CEC”) has siting authority for solar thermal and geothermal power plants over 50 MW. CEC site certification process is a certified regulatory program. The Staff Assessment is a functional equivalent of an Environmental Impact Report.

Defenders of Wildlife title here text here Federal Jurisdiction BLM must issue a right- of-way and a site specific amendment to the California Desert Conservation Plan. These actions trigger NEPA and ESA requirements.

Defenders of Wildlife title here text here NEPA, CEQA and Wildlife Projects on BLM land trigger section 7 of the Endangered Species Act. BLM as lead agency under NEPA must analyze significant impacts to wildlife. CEC has interpreted its organic law, the Warren-Alquist Act, as allowing the agency to supercede the California Department of Fish and Game’s incidental take authority. Therefore, the CEC issues its site certification “in lieu” of a state incidental take permit. CEC as lead agency under CEQA must also mitigate impacts to non-listed, special status species.

Defenders of Wildlife title here text here Examples of Affected Species Migratory birds – Golden eagle, burrowing owl. Reptiles – desert tortoise, flat-tailed horned lizard. Rare plants – White-margined beard tongue, Mojave milkweed, Rusby’s desert mallow. Mammals – American badger, Nelson’s bighorn sheep, desert kit fox, giant kangaroo rat.

Defenders of Wildlife title here text here Desert Tortoise State and Federally listed threatened. Declining throughout its range due to the cumulative load of human caused and disease- related mortality accompanied by habitat destruction, degradation, and fragmentation. Predation also a major issue. Many CA population are genetically distinct. Ivanpah population found at high altitude.

Defenders of Wildlife title here text here Ivanpah and Calico solar thermal projects

Defenders of Wildlife title here text here First in Line: Ivanpah Solar Thermal Proposal Demonstrates New Challenges 800 MW gas-fired power plant can be sited on acres. 400 MW Ivanpah plant is proposed to be sited on approximately 4,000 acres. Alternatives analysis limited to “project” and “no-project”. BLM later issued a supplemental EIS to fully analyze two separate site reconfiguration alternatives. Nested, in-lieu fee mitigation program is untested.

Defenders of Wildlife title here text here Calico Solar Thermal Proposal: an “Amicable Divorce” CEC and BLM staff had begun drafting a SA/DEIS. After time constraints made the joint document impossible, they separated. Possible issues: scope of alternatives, public comment period, mitigation, interagency consultation.

Defenders of Wildlife title here text here When do we get our new habitat? (or, the problem with in-lieu mitigation) In-lieu mitigation – applicant pays into a fund, which is later used for habitat acquisition, habitat enhancement or management actions. When are the lands acquired? Where are they located? What are the habitat enhancement actions? Desert Renewable Energy Conservation Plan and interim measures. –Identify geographic areas designated for renewable energy project development. –Identify areas for conservation and declining species management. Interim “interim” measures?

Defenders of Wildlife title here text here Desert Tortoise Translocation All desert tortoises must be translocated from the site in Spring or Fall. Desert tortoise translocations are risky: disease, predation, and lack of forage. Ft. Irwin translocation – 252 of 600 tortoises translocated in 2008 died. Additional translocation of 1,000 tortoises on hold.

Defenders of Wildlife title here text here What about Programmatic Review? BLM and DOE are developing a Solar Energy Development PEIS. Assess environmental impacts associated with the development and implementation of agency-specific programs that would facilitate environmentally responsible utility-scale solar energy development in AZ, CA, CO, NM, NV and UT. PEIS will identify impacts, mitigation and two alternatives. Agency-specific actions can tier from it. Also see the Desert Renewable Energy Conservation Plan.