A Step Toward Expediting California Clean Energy Permits

On Sept. 23, 2014, the California Energy Commission, California Department of Fish and Wildlife, U.S. Bureau of Land Management, and U.S. Fish and Wildlife Service released the Draft Environmental Impact Report/Environmental Impact Statement for the Desert Renewable Energy Conservation Plan (DRECP). The DRECP would create a framework to streamline permitting for up to 20,000 megawatts of renewable energy projects on more than 22 million acres in the California Mojave and Colorado/Sonoran desert region.

The DRECP will be of particular interest to renewable energy project developers and lenders. The DRECP seeks to provide more efficient regulatory assurances under various environmental laws, including the federal and state Endangered Species Acts. The DRECP provides for the streamlined review of renewable energy facility development over the next 25 years, identifying a planning goal of 20,000 megawatts of new renewable energy by 2040. Renewable energy development activities covered by the DRECP will include solar, wind and geothermal projects, as well as transmission facilities that service renewable energy projects.

Originally Published in Law360 – October 2, 2014.

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A Step Toward Expediting California Clean Energy Permits

Jennifer Roy Marc Campopiano Joshua Bledsoe
Latham & Watkins LLP Latham & Watkins LLP Latham & Watkins LLP

Law360, New York (October 02, 2014, 12:16 PM ET) — On Sept. 23, 2014, the California Energy Commission,
California Department of Fish and Wildlife, U.S. Bureau of Land Management, and U.S. Fish and Wildlife
Service released the Draft Environmental Impact Report/Environmental Impact Statement for the Desert
Renewable Energy Conservation Plan (DRECP). The DRECP would create a framework to streamline permitting for
up to 20,000 megawatts of renewable energy projects on more than 22 million acres in the California Mojave and
Colorado/Sonoran desert region.

The DRECP will be of particular interest to renewable energy project developers and lenders. The DRECP seeks to
provide more efficient regulatory assurances under various environmental laws, including the federal and state
Endangered Species Acts. The DRECP provides for the streamlined review of renewable energy facility
development over the next 25 years, identifying a planning goal of 20,000 megawatts of new renewable energy by
2040. Renewable energy development activities covered by the DRECP will include solar, wind and geothermal
projects, as well as transmission facilities that service renewable energy projects.

The DRECP, which has been in development since early 2009, recommends locations for siting renewable energy
projects and conserving desert habitat. The DRECP consists of four major components:

(1) a federal BLM Land Use Plan Amendment, covering 10 million acres of BLM-administered lands;

(2) a General Conservation Plan, developed by FWS, covering nearly 5.5 million acres of nonfederal lands, which
would provide a programmatic framework to streamline the incidental take permitting process under the federal
Endangered Species Act;

(3) a Conceptual Plan-Wide Natural Community Conservation Plan, to be approved by CDFW, which would
encompass the entire DRECP plan area and would describe a regional strategy for the protection of plants,
animals and desert habitat to simplify compliance with the California Endangered Species Act; and

(4) Programmatic environmental review under the California Environmental Quality Act and the National
Environmental Policy Act.

The DRECP is expected to change the way that renewable energy projects in the California desert are approved.
However, it is important to note that the DRECP does not supplant existing permitting processes.

To facilitate streamlining, the DRECP proposes a process where applicants may submit a “project proposal” to the
DRECP Coordination Group for an early review for consistency with DRECP requirements. Upon completion of
review by the Coordination Group, the project applicant would prepare and submit an application to the agency
or agencies responsible for issuing the permit or authorization. A project that has been approved by the
Coordination Group will be eligible for expedited review from DRECP participating agencies (BLM, FWS, CDFW,
CEC, and the California State Lands Commission) under their incidental take permits, as applicable.

The DRECP intends that most projects would be approved within one year following the determination by the
approving agency that the application is complete, including the preparation of project-level review under CEQA
and NEPA. Projects would, however, be required to comply with DRECP avoidance, minimization and mitigation
requirements, and would be required to pay for compensatory mitigation determined on a project-by-project
basis.

The EIR/EIS for the DRECP would be “programmatic” EIR/EIS, to be followed by targeted, project-specific
environmental review that can rely upon the analysis and mitigation strategies developed by the programmatic
EIR/EIS. The document analyzes the potential environmental, economic and social effects of the DRECP and
evaluates four “action alternatives” to the proposed DRECP, which are intended to illustrate the trade-offs
between development focused in different parts of the desert, and to show the differences among various
conservation strategies.

The draft EIR/EIS for the DRECP is currently available for public review and comment. All comments must be
submitted by Friday, Jan. 9, 2015. In addition, the CEC, BLM, FWS, and CDFW will hold a variety of informational
and formal public meetings in and around the plan area, as well as in Sacramento.

If approved, the DRECP should help streamline permitting for renewable energy generation projects and
transmission projects in the Colorado and Mojave desert areas of California, but it would not be a panacea.
Additional state and federal efforts may be needed to further expedite siting and permitting for renewable
projects. Various interests groups may oppose or seek to materially alter the DRECP, including via judicial
challenge, which could lead to further delays or uncertainty.

—By Jennifer K. Roy, Marc T. Campopiano and Joshua T. Bledsoe, Latham & Watkins LLP

Jennifer Roy is an associate in Latham & Watkins’ San Diego office. Marc Campopiano is an associate and Joshua
Bledsoe is counsel in the firm’s Orange County office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or
Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is
not intended to be and should not be taken as legal advice.
All Content © 2003-2014, Portfolio Media, Inc.

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