[Congressional Record Volume 155, Number 197 (Monday, December 21, 2009)]
[Senate]
[Pages S13699-S13703]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mrs. FEINSTEIN:
  S. 2921. A bill to provide for the conservation, enhanced recreation 
opportunities, and development of renewable energy in the California 
Desert Conservation Area, to require the Secretary of the Interior to 
designate certain offices to serve as Renewable Energy Coordination 
Offices for coordination of Federal permits for renewable energy 
projects and transmission lines to integrate renewable energy 
development, and for other purposes; to the Committee on Energy and 
Natural Resources.
  Mrs. FEINSTEIN. Mr. President, I rise today to introduce the 
California Desert Protection Act of 2010.
  I strongly believe that conservation, renewable energy development, 
and recreation can and must coexist in the California Desert--and this 
legislation strikes a carefully conceived balance between these 
sometimes competing concerns.
  The key provisions of this bill would designate two new national 
monuments--the Mojave Trails and the Sand to Snow National Monuments.
  It would add adjacent lands to the Joshua Tree and Death Valley 
National Parks and the Mojave National Preserve; designate 5 new BLM 
wilderness areas and protect 4 important waterways, such as the 
Amargosa River and Deep Creek, as Wild and Scenic Rivers; improve the 
process to permit large-scale wind and solar development on suitable 
public and private lands in the California desert; and enhance 
recreational opportunities in the desert, while ensuring that the 
training needs of the military are met.
  This bill is the product of painstaking discussions with key 
stakeholders--including environmental groups, local and State 
government, off-highway recreation enthusiasts, hunters, cattle 
ranchers, mining interests, the Department of Defense, wind and solar 
energy companies, California's public utility companies, and many 
others. I am grateful for all of their efforts.
  The bill is divided into two titles.
  The first title primarily covers conservation, recreation, and other 
purposes.
  The second title of the bill covers renewable energy development on 
suitable lands.
  Taken together, this bill will shape the future of the Southern 
California Desert, and I believe it can serve as a model for future 
efforts to balance renewable energy development and conservation.
  As of today, this bill has been endorsed by: the California 
Wilderness Coalition; the Wildlands Conservancy; the Wilderness 
Society; the National Parks Conservation Association; Friends of the 
River; Cogentrix Energy; Edison International, parent company of 
Southern California Edison; Friends of Big Morongo Canyon Preserve; 
Friends of the Desert Mountains; Mojave Desert Land Trust; Desert 
Protective Council; Amargosa Conservancy; Death Valley Conservancy; the 
Cities of Barstow, Desert Hot Springs, Hesperia, Indio, Palm Springs, 
San Bernardino and Yucaipa; Riverside County Supervisor Marion Ashley; 
San Bernardino County Supervisor Neil Derry; Imperial County Supervisor 
Wally Leimgruber; Coachella Valley Association of Governments; 
SummerTree Institute; and Route 66 Preservation Foundation.
  The California Desert Protection Act, which was enacted in 1994, was 
a sweeping piece of legislation aimed at

[[Page S13700]]

conserving some of the most beautiful and ecologically significant 
lands in my home State.
  The law created Death Valley National Park, Joshua Tree National Park 
and the Mojave National Preserve, as well as 69 desert wilderness areas 
managed by the Bureau of Land Management, BLM.
  Collectively, it protected over 7 million acres of desert lands, 
making it the largest land conservation bill in the lower 48 States in 
U.S. history.
  To this day, it remains one of my proudest accomplishments since 
joining this body.
  Much has changed since the passage of the California Desert 
Protection Act. Many of the impediments that prevented conservation of 
other pristine desert lands in the area no longer exist.
  Department of Defense concerns with designating some wilderness areas 
near Fort Irwin have been resolved.
  Many mining areas inside national parks and potential wilderness have 
closed.
  Grazing allotments on both BLM and National Park Service land have 
been retired by willing sellers.
  Hundreds of thousands of acres of privately owned land has been 
donated to or acquired by the Federal Government.
  Yet even as these issues were resolved, new challenges have emerged. 
There are now competing demands over how best to manage hundreds of 
thousands of acres of public lands in the desert.
  Some believe the lands should be used for large-scale solar and wind 
facilities and transmission lines. Others would like to conserve 
critical habitat for threatened and endangered species.
  Some would like more acreage available for grazing or for off-road 
recreation.
  Finally, some would like to see additional lands made available for 
military training and base expansion.
  Earlier this year, I learned that BLM had accepted applications to 
build vast solar and wind energy projects on former railroad lands 
previously owned by the Catellus Corporation. These lands had been 
donated to the Federal Government or acquired with taxpayer funds for 
conservation.
  I believe the development of these new cleaner energy sources is 
vital to addressing climate change, yet we must be careful about 
selecting where these facilities are located. The current process 
doesn't work because it allows energy firms to propose the sites for 
renewable energy development, including land donated or acquired 
specifically for conservation.
  Approximately $45 million of private donations--including a $5 
million land discount from Catellus Corporation--and $18 million in 
Federal Land and Water Conservation grants was spent to purchase these 
lands, with the intent of conserving them in perpetuity.
  As the sponsor of the legislative provisions that helped secure the 
deal to acquire the roughly 600,000 acres of former private land, I 
found the BLM's actions unacceptable.
  We have an obligation to honor our commitment to conserve these 
lands--and I believe we can still accomplish that goal while also 
fulfilling California's commitment to develop a clean energy portfolio.
  That is the purpose of this legislation.
  The first title of the legislation is geared towards the goal of 
conserving the Desert's sensitive ecosystem.
  First, this bill will ensure that hundreds of thousands of acres of 
land donated to the federal government for conservation will be 
protected by creating the Mojave Trails National Monument. This new 
monument would cover approximately 941,000 acres of Federal land, which 
includes approximately 266,000 acres of the former Catellus-owned 
railroad lands along historic Route 66. I visited the area earlier this 
year and was amazed by the beauty of the massive valleys, pristine dry 
lakes, and rugged mountains.
  In addition to its iconic sweeping desert vistas and majestic 
mountain ranges, this area of the Eastern Mojave also contains critical 
wildlife corridors linking Joshua Tree National Park and the Mojave 
National Preserve. It also encompasses hundreds of thousands of acres 
designated as areas of critical environmental concern, critical habitat 
for the threatened desert tortoise, and ancient lava bed flows and 
craters. It is surrounded by more than a dozen BLM wilderness areas.
  The BLM would be given the authority to both conserve the monument 
lands, and also to maintain existing recreational uses, including 
hunting, vehicular travel on open roads and trails, camping, horseback 
riding and rockhounding.
  The bill also creates an advisory committee to help develop and 
oversee the implementation of the monument management plan. It would be 
comprised of representatives from local, State and Federal Government, 
conservation and recreation groups, and local Native American tribes.
  Before I go on to the other conservation provisions in the bill, I 
would like to address one important issue--and that is what should be 
done about some of the proposed renewable energy development projects 
proposed for lands included in this monument.
  Although it is true that the monument will prevent further 
consideration of some applications to develop solar and wind energy 
projects on former Catellus lands or adjoining lands in the monument, 
it is important to note that of the proposals in question, not a single 
one has been granted a permit nor is a single one under review at the 
California Energy Commission or under formal NEPA, National 
Environmental Policy Act, review at BLM.
  To ensure that creation of the monument does not unnecessarily harm 
the firms that worked in good faith and invested substantial time and 
resources to produce renewable energy in California, the legislation 
will offer these companies an opportunity to relocate their projects to 
federal renewable energy zones currently being developed by the 
Department of the Interior.
  Additionally, the monument would not prevent the construction or 
expansion of necessary transmission lines critical to linking renewable 
energy generation facilities with the electricity grid.
  Second, the bill would establish the ``Sand to Snow National 
Monument,'' encompassing 134,000 acres of land from the desert floor in 
the Coachella Valley up to the top of Mount San Gorgonio, the highest 
peak in Southern California.
  The boundaries of this second, smaller new monument would include two 
Areas of Critical Environmental Concern: Big Morongo Canyon and 
Whitewater Canyon, the BLM and U.S. Forest Service San Gorgonio 
Wilderness, the Wildlands Conservancy's Pipe's Canyon and Mission Creek 
Preserves, and additional public and private conservation lands, 
including two wildlife movement corridor areas connecting the 
Peninsular Ranges with the Transverse Ranges.
  This area is truly remarkable, and would arguably be the most 
environmentally diverse national monument in the country. It serves as 
the intersection of three converging ecological systems--the Mojave 
Desert, the Colorado Desert, and the San Bernardino mountains--and is 
one of the most important wildlife corridors in Southern California.
  This monument designation would protect 23.6 miles of the Pacific 
Crest Trail and the habitat for approximately 240 species of migrating 
and breeding birds, the second highest density of nesting birds in the 
U.S. It also serves as a home and a crucial migration corridor for 
animals traveling between Joshua Tree National Park, the oasis at Big 
Morongo, and the higher elevations of the San Bernardino Mountains.
  I would like to make one additional point, and that is that despite 
its ecological significance, this area is not particularly well-known--
largely because it is managed by a number of distinct entities, 
including the BLM, Forest Service, National Park Service and private 
preserves and conservation agencies. So, the monument designation would 
help to attract more attention to one of California's natural gems.
  Third, the bill establishes new wilderness and allows more 
appropriate use of lands currently designated as Wilderness Study 
Areas.
  The 1994 California Desert Protection Act extended wilderness 
protection to many areas in the desert, yet several areas near Fort 
Irwin were designated as wilderness study areas in order to allow the 
base to expand.

[[Page S13701]]

  Now that Fort Irwin's expansion is complete, it is time to consider 
these areas for permanent wilderness designation.
  The bill protects approximately 250,000 acres of BLM land as 
wilderness in five areas. These areas contain some of the most pristine 
and rugged landscapes in the California desert.
  Beyond Fort Irwin, the bill also expands wilderness areas in Death 
Valley National Park, 90,000 acres, and the San Bernardino National 
Forest, 4,300 acres, inside the Sand to Snow National Monument created 
by this bill.
  The bill also releases 126,000 acres of land from their existing 
wilderness study area designation in response to requests from local 
government and recreation users. This will allow the land to be made 
available for other purposes, including recreational off-highway 
vehicle use on designated routes.
  Fourth, this bill would create the Vinagre Wash Special Management 
Area.
  The agreed-upon designation for this area in Imperial County, near 
the Colorado River, was reached after careful discussion with key 
stakeholders.
  Although the land possesses some wilderness characteristics, there 
are also competing interests. The Navy Seals currently use some of this 
area for occasional training. Additionally, many local residents enjoy 
touring the rolling hills in the area by jeep.
  Through the combined efforts of conservation groups, local residents 
and county government, and the Department of Defense, a compromise 
conservation designation was developed.
  For the land known as the Vinagre Wash, the bill will create a 
``special management area'' covering 76,000 acres, including 12,000 
acres of former railroad lands donated to the Federal Government.
  Of these, 49,000 acres are designated as potential wilderness and 
only become permanent wilderness if and when the Department of Defense 
determines these lands are no longer needed for Navy Seal training.
  This designation will permit the area to continue to be accessed by 
vehicles and be used for camping, hiking, mountain biking, sightseeing, 
and off-highway vehicle use on designated routes and protect tribal 
cultural assets in the area.
  Fifth, the bill adds to or designates four new Wild and Scenic 
Rivers, totaling 76 miles in length. This designation will ensure they 
remain clean and free-flowing and that their immediate environments are 
preserved. These beautiful waterways are Deep Creek and the Whitewater 
River in and near the San Bernardino National Forest, as well as the 
Amargosa River and Surprise Canyon Creek near Death Valley National 
Park.
  Sixth, the bill includes adds approximately 74,000 acres of adjacent 
lands to the three National Parks established by the 1994 California 
Desert Protection Act.
  The bill adds 41,000 acres in Death Valley National Park. This 
includes former mining areas where the claims have been retired and a 
narrow strip of BLM land between National Park and Defense Department 
boundaries that has made BLM management difficult.
  The bill adds 30,000 acres in the Mojave National Preserve. This land 
was not included in the original Monument because of the former Viceroy 
gold mine. However, the mining operations ceased several years ago, and 
the reclamation process is nearly complete. Additionally, a 2007 
analysis by the Interior Department recommended that this area would be 
suitable to add to the Preserve.
  The bill adds 2,900 acres in Joshua Tree National Park. This includes 
multiple small parcels of BLM land identified for disposal on its 
periphery. Transferring this land to the Park Service would help 
protect Joshua Tree by preserving these undeveloped areas that border 
residential communities.
  Seventh, the bill designates new lands as Off-Highway Vehicle 
Recreation Areas.
  One of the key goals I have strived for in this bill is to find 
balance to ensure that the many different needs and uses in the desert 
are accommodated with the least possible conflict. Some of the most 
frequent visitors to the desert are the off-highway recreation 
enthusiasts.
  In California alone, there are over 1 million registered off-highway 
vehicles, many of which can be found exploring thousands of miles of 
desert trails or BLM designated open areas.
  However, in order to meet military training needs, the Marine Corps 
is studying the potential expansion of Marine Corps Air Ground Combat 
Center at Twentynine Palms into Johnson Valley, the largest OHV area in 
the country. I strongly support providing our troops with the best 
possible training, but if the Marines need to expand the base into 
Johnson Valley, this could have potentially resulted in the loss of 
tens of thousands of acres of OHV recreation lands.
  But over the past year I met with Major General Eugene Payne, 
Assistant Deputy Commandant for Installations and Logistics, and 
Brigadier General Melvin Spiese, Commanding General, Training and 
Education Command, to discuss this issue, and I am very grateful for 
their efforts to consider base expansion options that would preserve 
much of Johnson Valley for recreation.
  As the result of those meetings, the Marine Corps has committed to 
studying an alternative that would allow for a portion of Johnson 
Valley to be used exclusively for military training, a portion 
exclusively for continued OHV recreation and a third area for joint 
use. While the environmental review process must first be completed, I 
am hopeful that this option will prevail for the benefit of the Marines 
and recreational users of Johnson Valley.
  The lesson learned from Johnson Valley is that, despite the vast size 
of the California desert, there are relatively few areas dedicated to 
OHV recreation, and even those areas face increasing competition from 
other types of uses. These areas are important not only to the hundreds 
of thousands visitors who enjoy them, but also to the local economy 
that depends on their tourist dollars. Additionally, by protecting 
these areas, we also protect conservation areas by providing 
appropriate places for OHV recreation.
  So, this bill will designate five existing OHV areas in the Mojave 
desert as permanent OHV areas, providing off- highway groups some 
certainty that these uses will be protected as much as conservation 
areas. Collectively, these areas could be as much as 314,000 acres, 
depending on what, if any, of Johnson Valley is ultimately needed by 
the Marines.
  This section of the bill also requires the Secretary of the Interior 
to conduct a study to determine what, if any, lands adjacent to these 
recreation areas would be suitable for addition. This will help make up 
for some of the lost acres in Johnson Valley should the Marines decide 
to expand there.
  Finally, this title of the bill includes other key provisions that 
address various challenges and opportunities in the California desert, 
including: state land exchanges.
  There are currently about 370,000 acres of state lands spread across 
the California desert in isolated 640 acre parcels. Because many of 
these acres are inside national parks, wilderness, the proposed 
monuments or conservation areas, they are largely unusable. The bill 
seeks to remedy that problem by requiring the Department of the 
Interior to develop and implement a plan with the state to complete the 
exchange of these lands for other BLM or GSA owned property in the next 
ten years. These land exchanges will help consolidate the state lands 
into larger, more usable areas that could potentially provide the state 
with viable sites for renewable energy development, off- highway 
vehicle recreation or other commercial purposes.
  The bill ensures the right of the Department of Defense to conduct 
low-level overflights over wilderness, national parks and national 
monuments.
  The bill requires the Department of the Interior to study the impact 
of climate change on California desert species migration, incorporate 
the study's results and recommendations into land use management plans, 
and consider the study's findings when making decisions granting rights 
of way for projects on public lands.
  The bill requires the Secretary to ensure access for tribal cultural 
activities within national parks, monuments, wilderness and other areas 
designated within the bill. It also requires the Secretary to develop a 
cultural resources management plan to protect a sacred tribal trail 
along the Colorado

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River between southern Nevada and the California-Baja border.
  In order to ensure that donated and acquired Catellus lands outside 
the Mojave Trails National Monument are maintained for conservation, 
the bill prohibits their use for development, mining, off-highway 
vehicle use, except designated routes, grazing, military training and 
other surface disturbing activities. The Secretary of the Interior is 
authorized to make limited exceptions in cases where it is deemed in 
the public interest, but comparable lands would have to be purchased 
and donated to the Federal Government as mitigation for lost acreage.
  So, all of these provisions, when taken together, would serve to 
complement the lasting conservation established by the California 
Desert Protection Act--while ensuring that other important local uses 
are maintained in appropriate areas.
  The Mojave Desert is a spectacular national treasure worthy of 
protection, but it is also a unique national solar resource.
  The Mojave has more than 350 sunny days per year; has large flat 
valleys and mesas; is close to major transmission lines and millions of 
electricity consumers in Southern California; and lies above 4,000 feet 
in elevation, where the sun is strongest.
  There is no question that we need to harness the desert's plentiful 
solar energy--but in order to do that, we need to cut through a 
bureaucratic backlog of stalled permits, and ensure that development 
occurs on the most appropriate lands.
  That is exactly what the second title of this legislation is intended 
to do.
  For too many years the promise of utilizing desert lands to produce 
clean, renewable solar power was out of reach. The up-front technology 
costs were too expensive, while coal was deemed to be cheap and 
plentiful.
  But the economics of solar power began to shift in the right 
direction in 2005, when Congress established a 30 percent investment 
tax credit for solar power facilities, a provision I championed. I was 
proud to work with Senator Snowe and other members of the Senate 
Finance Committee to extend this tax credit through 2016 during the 
last Congress.
  On December 17, I introduced new legislation with Senator Merkley to 
make sure solar companies can fully realize the benefits of these tax 
incentives.
  The other chief roadblock to developing solar in the desert has been 
the broken permitting process.
  The Federal Government has failed to focus wind and solar development 
on appropriate lands where it can be readily permitted.
  There are currently more than 110 applications to develop more than 
42,000 megawatts of renewable energy capacity on BLM land in the 
California desert.
  Until very recently, nothing was done to evaluate these development 
proposals.
  All but a few proposals have not even begun the formal environmental 
review process required by the National Environmental Policy Act, NEPA. 
The BLM has been slow to direct development towards disturbed lands or 
to discourage proposals on lands acquired for the purpose of 
conservation.
  Wind developers have had to wait more than three years to receive 
permission to measure the wind above public lands.
  The Fish and Wildlife Service has told renewable energy developers 
seeking to use disturbed private lands that they would need to develop 
complex habitat conservation plans for their projects, a process 
expected to take nine years.
  Contrast that with the recent announcement from Interior Secretary 
Ken Salazar, who has pledged that the BLM will complete permitting of 
10 ``fast track'' solar projects on public lands by December 2010.
  So, the good news is that this administration has taken steps in the 
right direction to encourage this important shift to renewable energy.
  But it is critical, nonetheless, that this legislation is enacted in 
order to codify and build upon these improvements to the permitting 
process and help establish the transmission lines needed to carry 
cleaner energy from the desert to consumers.
  Key provisions of the bill: first, the bill will require BLM to put 
personnel in place focused exclusively on renewable energy development 
in the desert, make the staff accountable to Congress, and provide a 
reliable stream of funding to expedite the review of applications.
  The BLM began establishing renewable energy permitting offices 
earlier this year, but this legislation would codify this new 
administrative policy, establish that the offices have a clear 
Congressional mandate, and ensure that they will focus specifically on 
renewable energy development in each state with significant wind and 
solar resources on public land.
  These offices would be funded from the existing BLM permit 
improvement fund--a fund which is currently only available to supervise 
the permitting for oil and natural gas development.
  It makes sense that this fund should go towards providing cleaner 
energy sources as well.
  Second, the bill would help cut through the backlog of pending 
renewable development applications with a ``use it or lose it'' 
approach.
  This would replace the ``first come-first serve'' approach the BLM 
currently employs.
  The legislation would establish strict deadlines for developers to 
conduct necessary biological and cultural studies, ensure connection to 
the grid, and develop a plan for water. This would ensure that serious 
development proposals are moved to the front of the line--and help put 
an end to unfettered speculation on desert lands.
  Third, this legislation will expedite the application process for 
solar development on private lands.
  When I toured the desert last spring, I asked developers why they 
wanted to develop pristine public lands, instead of using private 
lands.
  The answer shocked me: they told me it was easier to permit a project 
on pristine public land than on private lands.
  We need to ensure that it takes no longer to review an application to 
develop private lands than it does to develop public lands--without 
infringing upon important environmental regulations.
  So, the bill would establish a pilot mitigation bank program--a new 
idea based on successful desert protection efforts in Nevada, wolf 
protection efforts in New Mexico, and Coral Reef protection efforts in 
the Caribbean.
  The mitigation bank program would be a win-win, both accelerating 
permitting and coordinating endangered species protection efforts.
  Developers seeking to utilize private lands would be able to 
contribute to a mitigation fund, instead of negotiating the terms of 
endangered species mitigation, which the Fish and Wildlife Service 
recently predicted would take nine years.
  The interest from the funds contributed by developers would be used 
to better manage endangered species habitat in specific mitigation 
zones of federal land that would be permanently set aside for species 
protection.
  The principal in this fund would be used to purchase new pristine 
habitat when it became available.
  This Mitigation bank program would be run by BLM, and the Fish and 
Wildlife Service would consult with the BLM on renewable energy project 
review, just as they do now for renewable energy proposals on public 
land.
  This would help level the playing field between public and private 
lands, and it could cut down the time it takes to permit projects for 
private lands considerably.
  Fourth, the legislation would require the BLM, the Forest Service, 
and the military to complete Environmental Impact Statements to develop 
renewable energy on the lands they oversee.
  This has two benefits.
  First, it ensures that Federal land managers will proactively plan 
the use of public lands--instead of allowing private industry to make 
these de facto decisions.
  Federal land managers will be required to identify renewable energy 
development areas where development is in the public interest through 
the programmatic EIS process. This will help avoid the sort of site-
specific environmental conflicts that can delay projects for years.
  The second benefit of this provision is that it will result in a 
formal evaluation of whether public land currently managed by the 
military will also be

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considered for solar development, instead of concentrating this 
development only on BLM land. There are currently approximately 3 
million acres of California desert that are managed by the military, 
and much of this land could be developed for renewable energy 
consistent with the military mission.
  By requiring the military to evaluate the impacts of a program to 
develop its solar resource, the legislation ensures that all available 
public lands are properly considered for renewable energy development 
in California.
  Fifth, this legislation expedites the permitting of temporary 
meteorological measurement devices.
  In California, it sometimes takes a wind developer three years to get 
a permit simply to measure wind speed. Such barriers to research are 
unnecessary and unwise, and this legislation assures that this type of 
research qualifies for existing categorical exclusions from complex 
environmental reviews.
  Sixth, the legislation would provide grants and loan guarantees to 
innovative electricity transmission technologies that will reduce the 
need to build massive, visually and environmentally disruptive 
transmission lines in the desert.
  Finally, the legislation would return 25 percent of the revenue 
generated by new renewable energy projects to the State, and 25 percent 
to local county governments. This would ensure that these entities have 
the resources to support permitting, public lands protection, and local 
conservation efforts.
  Bottom line: The permitting process is broken. It is not facilitating 
solar and wind development where it belongs. This legislation intends 
to fix that.
  It may surprise my colleagues that I am introducing such 
comprehensive legislation to ensure the protection of California's 
desert heritage, the development of our renewable resources, and the 
continued enjoyment of desert recreation.
  After all, I am not from the desert. I have lived in or near San 
Francisco for most of my life.
  But over the years I have come to truly appreciate California's 
sweeping desert landscapes.
  I remember my first visits to the desert years ago. It was treated 
like a waste dump. It was full of abandoned cars. Old appliances 
littered the landscape.
  But we have worked very hard to clean it up.
  We have worked to make sure that the vast vistas and pristine desert 
habitat are respected by humanity, and that we give to our children a 
healthier, more beautiful desert than we inherited.
  But if we are to remain successful in the long run, we must not only 
protect the desert land itself, we must also protect the broader 
environment from the ravages of climate change, and we must offer 
economic opportunity to those who live in these areas.
  That is the purpose of this legislation. There are many places in the 
California desert where development and employment are essential and 
appropriate.
  But there are also places that future generations will thank us for 
setting aside.
  I have worked painstakingly with stakeholders to ensure that this 
legislation balances sometimes competing needs.
  This bill, if enacted, will have a positive and enduring impact on 
the landscape of the Southern California desert, and I hope it will 
stand as a model for how to balance renewable energy development and 
conservation.

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