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SB-413 Electricity: offshore wind generation facilities: site certification.(2021-2022)

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Date Published: 02/12/2021 09:00 PM
SB413:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 413


Introduced by Senator McGuire
(Coauthor: Senator Laird)

February 12, 2021


An act to add Section 25711.3 to, and to add Chapter 6.3 (commencing with Section 25545) to Division 15 of, the Public Resources Code, relating to electricity.


LEGISLATIVE COUNSEL'S DIGEST


SB 413, as introduced, McGuire. Electricity: offshore wind generation facilities: site certification.
The existing Warren-Alquist State Energy Resources Conservation and Development Act establishes the State Energy Resources Conservation and Development Commission (Energy Commission) and grants the Energy Commission the exclusive authority to certify any stationary or floating electrical generating facility using any source of thermal energy, with a generating capacity of 50 megawatts or more, and any facilities appurtenant thereto.
This bill would require the Energy Commission, in consultation with the Offshore Wind Project Certification, Fisheries, Community, and Indigenous Peoples Advisory Committee, which the bill would create, to establish a process for the certification of offshore wind generation facilities that is analogous to the existing requirements for certification of thermal powerplants, but applicable to offshore wind generation facilities, and would make the Energy Commission the exclusive authority for the certification of offshore wind generation facilities. The bill would require an applicant for certification of an offshore wind generation facility to certify specified matter. The bill would state the intent of the Legislature to amend the bill to provide sufficient direction and authority to the commission to: (1) evaluate, assess, and mitigate, to the extent feasible, any adverse impacts on indigenous peoples, fishing, and local communities adversely affected by the permitting, development, and operation of offshore wind generation projects, (2) recover the costs of mitigation from the applicants for certification of offshore wind generation facilities, (3) impose assessments on offshore wind generation facilities in order to ensure full economic and environmental compensation for any adverse effects offshore wind generation projects may have on indigenous peoples, fishing, and local communities, and (4) provide mechanisms whereby any assessments be adopted in a duly noticed public hearing, be deposited in publicly audited accounts, and be disbursed annually in an open and public process.
The California Constitution establishes the Public Utilities Commission (PUC), with jurisdiction and certain authority over all public utilities, subject to control by the Legislature. Existing decisions of the PUC institute an Electric Program Investment Charge (EPIC) to fund renewable energy and research, development, and demonstration programs. Existing law creates in the State Treasury the Electric Program Investment Charge Fund to be administered by the Energy Commission and requires the PUC to forward to the Energy Commission at least quarterly moneys for those EPIC programs the PUC has determined should be administered by the Energy Commission for deposit in the fund.
This bill would, upon appropriation by the Legislature from the fund, require the Energy Commission to establish a program for the research of the effects of offshore wind generation development on fisheries, Native American populations, and small local governments in those regions of the state where development of offshore wind generation projects are proposed along the coast of California.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Chapter 6.3 (commencing with Section 25545) is added to Division 15 of the Public Resources Code, to read:
CHAPTER  6.3. Offshore Wind Development, Fisheries, and Community Protection

25545.
 (a) This chapter shall be known, and may be cited, as the California Offshore Wind, Clean Energy, Communities, and Fisheries Protection Act of 2021.
(b) The Legislature finds and declares that, as part of California’s efforts to achieve providing 100 percent of retail sales of electricity to California end-use customers from eligible renewable energy resources and resources that emit no greenhouse gases when generating electricity, as provided under the 100 Percent Clean Energy Act of 2018 (Chapter 312 of the Statutes of 2018), it is appropriate to establish a “one-stop shop” permit option at the commission for the development of offshore wind generation resources located adjacent to the state.
(c) While desirable from the standpoint of helping to achieve the state’s clean energy and climate requirements, offshore wind generating facilities can have significant adverse impacts on fishing resources, onshore communities, and indigenous peoples.
(d) The purpose of this chapter is to establish a process for comprehensive offshore wind generation development permitting, mitigation, and protection of affected coastal communities, fisheries, and indigenous peoples.

25546.
 (a) Except as otherwise provided in this section, the commission shall establish a process for the certification of offshore wind generation facilities that is analogous to the requirements of Chapter 6 (commencing with Section 25500), except that it is applicable to offshore wind generation facilities. The commission shall consult the committee created pursuant to Section 25549 when establishing the process.
(b) The commission shall have the exclusive power to certify all sites and related facilities for offshore wind generation within the jurisdiction of the state, whether a new site and related facility or a change or addition to an existing facility. The issuance of a certificate by the commission shall be in lieu of any permit, certificate, or similar document required by any state, local, or regional agency, or federal agency to the extent permitted by federal law, for such 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. The construction of any facility or modification of any existing facility shall not be commenced without first obtaining certification for any such site and related facility by the commission, as prescribed in this chapter.
(c) To the extent not otherwise provided by law, a Native American nation, local government, or fisherman in a region affected by offshore wind generation development shall, on application, be made a formal party with standing in any proceeding for the siting of an offshore wind generation facility.
(d) The process for certification of an offshore wind generation facility shall require the applicant for certification to do all the following:
(1) Certify to the commission that either of the following is true:
(A) The entirety of the development is a public work for purposes of Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code.
(B) The development is not in its entirety a public work for which prevailing wages must be paid under Chapter 1 (commencing with Section 1720) of Part 7 of Division 2 of the Labor Code, but all construction workers employed on construction of the development will be paid at least the general prevailing rate of per diem wages for the type of work and geographic area, as determined by the Director of Industrial Relations pursuant to Sections 1773 and 1773.9 of the Labor Code, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate. If the development is subject to this subparagraph, for those portions of the development that are not a public work, all of the following apply:
(i) The applicant for certification shall ensure that the prevailing wage requirement is included in all contracts for the performance of all construction work.
(ii) All contractors and subcontractors shall pay to all construction workers employed in the execution of the work at least the general prevailing rate of per diem wages, except that apprentices registered in programs approved by the Chief of the Division of Apprenticeship Standards may be paid at least the applicable apprentice prevailing rate.
(iii) Except as provided in clause (v), all contractors and subcontractors shall maintain and verify payroll records pursuant to Section 1776 of the Labor Code and make those records available for inspection and copying as provided therein.
(iv) Except as provided in clause (v), the obligation of the contractors and subcontractors to pay prevailing wages may be enforced by the Labor Commissioner through the issuance of a civil wage and penalty assessment pursuant to Section 1741 of the Labor Code, which may be reviewed pursuant to Section 1742 of the Labor Code, within 18 months after the completion of the development, or by an underpaid worker through an administrative complaint or civil action, or by a joint labor-management committee though a civil action pursuant to Section 1771.2 of the Labor Code. If a civil wage and penalty assessment is issued, the contractor, subcontractor, and surety on a bond or bonds issued to secure the payment of wages covered by the assessment shall be liable for liquidated damages pursuant to Section 1742.1 of the Labor Code.
(v) Clauses (iii) and (iv) do not apply if all contractors and subcontractors performing work on the development are subject to a project labor agreement that requires the payment of prevailing wages to all construction workers employed in the execution of the development and provides for enforcement of that obligation through an arbitration procedure. For purposes of this clause, “project labor agreement” has the same meaning as set forth in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.
(vi) Notwithstanding subdivision (c) of Section 1773.1 of the Labor Code, the requirement that employer payments not reduce the obligation to pay the hourly straight time or overtime wages found to be prevailing does not apply if otherwise provided in a bona fide collective bargaining agreement covering the worker. The requirement to pay at least the general prevailing rate of per diem wages does not preclude use of an alternative workweek schedule adopted pursuant to Section 511 or 514 of the Labor Code.
(2) (A) Certify to the commission that a skilled and trained workforce will be used to perform all construction work on the development. For purposes of this paragraph, “skilled and trained workforce” has the same meaning as provided in Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code.
(B) If the applicant for certification has certified that a skilled and trained workforce will be used to construct all work on the development and the application is approved, the following apply:
(i) The applicant for certification shall require in all contracts for the performance of work that every contractor and subcontractor at every tier will individually use a skilled and trained workforce to construct the development.
(ii) Every contractor and subcontractor shall use a skilled and trained workforce to construct the development.
(iii) Except as provided in clause (iv), the applicant for certification shall provide to the commission, on a monthly basis while the development or contract is being performed, a report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code. A monthly report provided to the local government pursuant to this clause shall be a public record pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1) and shall be open to public inspection. An applicant for certification that fails to provide a monthly report demonstrating compliance with Chapter 2.9 (commencing with Section 2600) of Part 1 of Division 2 of the Public Contract Code shall be subject to a civil penalty of ten thousand dollars ($10,000) per month for each month for which the report has not been provided. Any contractor or subcontractor that fails to use a skilled and trained workforce shall be subject to a civil penalty of two hundred dollars ($200) per day for each worker employed in contravention of the skilled and trained workforce requirement. Penalties may be assessed by the Labor Commissioner within 18 months of completion of the development using the same procedures for issuance of civil wage and penalty assessments pursuant to Section 1741 of the Labor Code, and may be reviewed pursuant to the same procedures in Section 1742 of the Labor Code. Penalties shall be paid to the State Public Works Enforcement Fund.
(iv) Clause (iii) does not apply if all contractors and subcontractors performing work on the development are subject to a project labor agreement that requires compliance with the skilled and trained workforce requirement and provides for enforcement of that obligation through an arbitration procedure. For purposes of this clause, “project labor agreement” has the same meaning as set forth in paragraph (1) of subdivision (b) of Section 2500 of the Public Contract Code.

25548.
 It is the intent of the Legislature to amend this section to provide sufficient direction and authority to the commission to accomplish all of the following:
(a) To evaluate, assess, and mitigate, to the extent feasible, any adverse impacts on indigenous peoples, fishing, and local communities adversely affected by the permitting, development, and operation of offshore wind generation projects.
(b) To recover the mitigation costs from the applicants for certification of an offshore wind generation facilities that participates in the offshore wind generation project.
(c) To impose assessments on the owners or operators of offshore wind generation facilities in order to ensure full economic and environmental compensation for any adverse effects offshore wind generation projects may have on indigenous peoples, fishing, and local communities.
(d) To provide mechanisms whereby any assessment will be adopted in a duly noticed public hearing, be deposited in publicly audited accounts, and be disbursed annually in an open and public process.

25549.
 (a) There is hereby created the Offshore Wind Project Certification, Fisheries, Community, and Indigenous Peoples Advisory Committee.
(b) The committee shall have five members, three of whom shall be appointed by the Governor and subject to confirmation by the Senate, and one each shall be appointed by the Senate Committee on Rules and the Speaker of the Assembly. The Governor’s appointees shall consist of one representative each of the fishing industry, indigenous peoples’ community, and local coastal community. The appointees of the Senate Committee on Rules and Speaker of the Assembly shall be public members. A member of the committee shall not have a financial interest in any offshore wind generation project.
(c) The committee shall advise the commission on all matters relating to offshore wind generation development, including the commission’s assessment of adverse impacts and providing recommendations for certification of offshore wind generation facilities after the commission’s evaluation and assessment of impacts pursuant to Section 25548.

SEC. 2.

 Section 25711.3 is added to the Public Resources Code, to read:

25711.3.
 Upon appropriation by the Legislature from the fund, the commission shall establish a program for the research of the effects of offshore wind generation development on fisheries, Native American populations, and small local governments in those regions of the state where development of offshore wind generation projects are proposed along the coast of California.