Senate Bill 226, recently signed by California Governor Jerry Brown, comprises an assortment of measures intended to expedite sustainable solar and infill development and promote jobs in the construction industry, primarily through revisions to the California Environmental Quality Act (CEQA).

Solar Energy System Installation on Roofs and Parking Lots. SB 226 creates a statutory exemption from CEQA for installation of a solar energy system on the roof of an existing building or at an existing parking lot, if:

• Any necessary “associated equipment” (which cannot include a substation) is onsite or adjacent to the parcel; occupies no more than 500 square feet; does not require an individual Clean Water Act, Porter-Cologne Act, or federal or state Endangered Species Act permit or a streambed alteration agreement; and is not on a site containing plants protected by the Native Plant Protection Act; and

   

• In the case of a parking lot, the parking lot has been used as such for at least two years prior to the application, and no protected trees or native trees over 25 years old would be removed.

Effect of Project Greenhouse Gas Emissions on Applicability of CEQA Categorical Exemptions. In addition to statutory exemptions from CEQA, which are absolute, CEQA provides for “categorical” exemptions, which apply only to types of projects that are unlikely to cause significant environmental impacts. SB 226 provides that a project that otherwise qualifies for a categorical exemption does not lose that exemption by virtue of its greenhouse gas emissions, if the project “complies with all applicable regulations or requirements adopted to implement statewide, regional, or local plans consistent with” CEQA Guidelines section 15183.5. Section 15183.5, adopted in 2010, allows public agencies to analyze and mitigate significant greenhouse gas emissions in a plan for the reduction of greenhouse gas emissions or similar document.

Limited CEQA Review for Certain Infill Projects. SB 226 requires the Secretary of the Resources Agency to adopt and certify, by July 1, 2012, statewide guidelines for infill projects. An infill project will be eligible for streamlined CEQA review if it both satisfies these new guidelines and: 1) is consistent with a sustainable communities strategy or an alternative planning strategy; 2) is a “small walkable community project”; or 3) where no sustainable communities strategy or alternative planning strategy has been adopted, is a project with residential density of at least 20 units per acre or a floor area ratio of at least 0.75.

An “infill project” for the purposes of this provision consists of any one, or a combination, of the following uses: residential; retail or commercial (where no more than one-half of the project area is used for parking); transit station; school; and public office building. In addition, an “infill site” must be located on a previously developed site in an urban area, or on a vacant site with at least 75% of its perimeter located adjacent to parcels developed with qualified urban uses.

The CEQA streamlining provided for qualifying infill projects is detailed. If an environmental impact report (EIR) was prepared for a planning level decision of the city or county where the project is located, then CEQA applies only to project-specific impacts that either were not addressed, or would be more significant than described, in the prior EIR. Such impacts do not include impacts that would be substantially mitigated by uniformly applicable development standards adopted by the city, county or lead agency. If the infill project would result in project- or site-specific impacts, or new or more significant impacts than those addressed in the prior EIR, and if a mitigated negative declaration or a sustainable communities environmental assessment could not be otherwise adopted, the new EIR for the infill project shall be limited. In such a case the EIR need not consider alternative locations, densities and building intensities to the project or growth-inducing impacts of the project.

Conversion of Certain Solar Thermal Power Plants to Photovoltaic Technology. SB 226 also amends the Warren-Alquist Act, which governs the power plant siting authority of the California Energy Commission. The Energy Commission has exclusive jurisdiction over all state, regional and local approvals required for large thermal power plants, but not for power plants that use photovoltaic technology. SB 226 allows owners of certain commission-approved solar thermal power plants to return to the commission, without filing a new application, for permission to convert all or portions of their projects to photovoltaic technology and to remain under the commission’s exclusive jurisdiction. Among other requirements, the commission must prepare supplemental environmental review documentation and incorporate all feasible mitigation measures identified by the Department of Fish and Game and the State Water Resources Control Board. 

© 2011 Perkins Coie LLP