New State Laws to Facilitate Infrastructure Project Development

Two laws enacted in 2023 as part of Governor Gavin Newsom’s infrastructure streamlining package are intended to facilitate development of certain energy, water resources, transportation, semiconductor manufacturing, and other infrastructure projects. SB 147 allows the California Department of Fish and Wildlife (CDFW) to issue permits authorizing the incidental take of “fully protected species” for qualifying projects, while SB 149 requires expedited resolution of California Environmental Quality Act (CEQA) lawsuits for qualifying projects.

SENATE BILL 147: INCIDENTAL TAKE PERMITS FOR FULLY PROTECTED SPECIES

Background

State law prohibits the take (defined as actual or attempted hunting, pursuing, catching, capturing, or killing) of roughly three dozen species that are designated as fully protected. While CDFW can issue permits authorizing incidental take of endangered, threatened, and candidate species under the California Endangered Species Act (CESA), CDFW does not have similar authority to permit the incidental take of fully protected species. With some limited exceptions, the incidental take of fully protected species cannot be permitted unless pursuant to a natural community conservation plan.

SB 147 authorizes CDFW to issue permits for the incidental take of fully protected species in connection with specified water resources, transportation, and renewable energy projects.

Eligible Infrastructure Projects

The following infrastructure projects are eligible for incidental take permits for fully protected species:

• • Maintenance, repair, or improvement projects to the State Water Project, including existing infrastructure, undertaken by the Department of Water Resources
  • Maintenance, repair, or improvement projects to critical regional or local water agency infrastructure
  • Transportation projects, including associated habitat connectivity and wildlife crossing projects, that do not increase street or highway capacity for automobiles or trucks and are undertaken by a public agency
  • Wind and solar photovoltaic energy projects, appurtenant infrastructure improvements, and associated electric transmission projects

Through-delta water conveyances in the Sacramento- San Joaquin Delta and ocean desalination projects are not eligible.

Permit Requirements

Incidental take permits for fully protected species must meet the same requirements as incidental take permits for endangered, threatened, or candidate species under the CESA:

• • The take is incidental to otherwise lawful activity
  • Impacts of the authorized take are minimized and fully mitigated, with measures roughly proportional in extent to the impact of the authorized taking on the species
  • The applicant ensures adequate funding to implement minimization/mitigation measures and to monitor compliance with and effectiveness of those measures
  • Issuance of the permit will not jeopardize the continued existence of the species

Further, SB 147 imposes the following additional requirements on incidental take permits for fully protected species:

• • Incorporation of all further measures that are necessary to bring the species to the point at which the CESA’s protections are not necessary and, if the species is not listed under the CESA, to maintain or enhance the condition of the species so that listing under the CESA will not become necessary
  • Take of the species is avoided to the maximum extent possible
  • Implementation of a monitoring program and adaptive management plan for monitoring the effectiveness of and amending, as necessary, the measures to minimize and fully mitigate the impacts of the authorized take

Expiration

CDFW’s authority to issue incidental take permits for fully protected species for qualifying projects will expire on December 31, 2033. Any permits issued before that date will remain in effect.

Change in Status of Three Species

In addition to creating this new permitting regime, SB 147 removed the American peregrine falcon, brown pelican, and thicktail chub from the lists of fully protected species. With those status changes, there are now 34 fully protected species under state law.

SENATE BILL 149: STREAMLINING CEQA LAWSUITS

Background

SB 149 authorizes judicial streamlining of CEQA litigation for certain governor-certified infrastructure projects. Its aim is to encourage and streamline projects critical for combatting climate change while maintaining CEQA’s environmental and public engagement benefits.

Eligible Infrastructure Projects

The following infrastructure projects are eligible for certification and judicial streamlining:

• • Energy infrastructure projects as specified, including solar, wind, geothermal, and other specified renewable energy projects; certain energy storage systems; specified projects for manufacturing energy storage, solar photovoltaic, or wind energy systems and components, and products that are integral to those systems; and electric transmission facilities (but not including any projects that use hydrogen as a fuel)

• • Semiconductor or microelectronic projects, meaning projects that meet the requirements related to investment in new or expanded facilities and are awarded funds under the federal CHIPS Act
  • Transportation-related projects that advance and do not conflict with specified goals in the state’s Climate Action Plan for Transportation Infrastructure
  • Water-related projects as specified, including projects that implement a groundwater sustainability plan; certain water storage projects; recycled water development projects; projects to remove contaminants and salt (but not including seawater desalination) and associated treatment, storage, conveyance, and distribution facilities; and projects exclusively for canal or other conveyance maintenance and repair (but not including through-Delta conveyance facilities of the Sacramento-San Joaquin Delta)

Requirements for Streamlining

To receive streamlining benefits, projects must meet specified labor requirements, which, depending on the type of project, include treatment of the project as a public work or payment of prevailing wages, using apprentices, and/or using a skilled and trained workforce. Additionally, the project must meet stringent greenhouse gas mitigation requirements (these requirements vary depending on the type of project) and avoid, minimize, and mitigate significant environmental impacts in any “disadvantaged community” (as defined in the law). Further, a private applicant must agree to pay the lead agency’s administrative record preparation costs and all court costs if litigation is filed.

Project sponsors must apply to the governor for certification of a project. The governor’s certification decision is not subject to judicial review, but the decision must be submitted to the Joint Legislative Budget Committee for concurrence or nonconcurrence. If the committee fails to act within 30 days, the project is deemed certified.

The lead agency must prepare the administrative record concurrently with the administrative process and meet specified public disclosure requirements, including making all administrative record documents publicly available on a website within specified short deadlines. The lead agency must certify the administrative record within five days of its approval of the project.

Judicial Streamlining

Any lawsuit challenging the environmental impact report or the granting of any approvals for a certified infrastructure project must be resolved, to the extent feasible, within 270 days of the filing of the administrative record (this includes trial, appellate, and Supreme Court proceedings).

Expiration

Lead agencies have until January 1, 2033, to approve certified infrastructure projects. SB 149 remains in effect until January 1, 2034.