BILL NUMBER: AB 1321 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 2, 2009
INTRODUCED BY Assembly Member Eng
FEBRUARY 27, 2009
An act to amend Section 75125 of add
Division 13.6 (commencing with Section 21200) to the Public
Resources Code, relating to the environment.
LEGISLATIVE COUNSEL'S DIGEST
AB 1321, as amended, Eng. Environment: Strategic Growth
Council. The Advance Infrastructure Mitigation Program
Act. :
(1) The California Environmental Quality Act (CEQA) requires a
lead agency to prepare, or cause to be prepared, and certify the
completion of, an environmental impact report on a project, as
defined, that it proposes to carry out or approve that may have a
significant effect on the environment, as defined, or to adopt a
negative declaration if it finds that the project will not have that
effect.
This bill would enact the Advance Infrastructure Mitigation
Program Act, which would establish the Advance Infrastructure
Mitigation Program, including defining terms for that purpose. The
bill would authorize the Natural Resources Agency to administer and
implement the program by taking specified actions. Those actions
would include preparing, approving, and implementing regional advance
mitigation plans, the contents of which the bill would specify, for
planned infrastructure projects, as defined, identified by an
infrastructure planning agency, as defined. The bill would specify
that the purpose of a regional advance mitigation plan is to provide
effective mitigation and conservation of natural resources and
natural processes on a landscape, regional, or statewide scale, to
expedite the environmental review of planned infrastructure projects,
and to facilitate the implementation of measures to mitigate the
impacts of those projects by identifying and implementing mitigation
measures in advance of project approval. The bill also would
authorize the agency to acquire, restore, manage, monitor, and
preserve lands, or fund those actions, in accordance with an approved
regional advance mitigation plan or as otherwise specified, and to
establish or fund the establishment of mitigation banks and
conservation banks and purchase credits at those types of banks as
specified. The bill would authorize the agency to take other
specified actions with respect to mitigation credits or values
created or acquired under the program.
The bill would authorize an infrastructure planning agency to
identify planned infrastructure projects for the purposes of
including the projects in a regional advance mitigation plan or for
other advance mitigation under the program, and would authorize the
agency to enter a memorandum of understanding or other agreement with
an infrastructure planning agency for specified purposes of the
program.
The bill would establish the Advance Infrastructure Mitigation
Fund in the State Treasury. Upon appropriation by the Legislature,
the bill would require moneys in the fund to be used by the agency to
administer and implement the program.
The bill would specify that the program is intended to improve the
efficiency and efficacy of mitigation only and is not intended to
supplant the requirements of CEQA or any other environmental law.
The Safe Drinking Water, Water Quality and Supply, Flood Control,
River and Coastal Protection Bond Act of 2006, an initiative statute
approved by the voters at the November 7, 2006, statewide general
election makes about $5.4 billion in bond funds available for safe
drinking water, water quality and supply, flood control, natural
resource protection, and park improvements.
Existing law establishes the Strategic Growth Council and
appropriates $500,000 from the funding provided by the initiative to
the Natural Resources Agency to support the council and its
activities. Existing law requires the council to take certain actions
with regard to coordinating programs of member state agencies to
improve air and water quality, improve natural resource protection,
increase the availability of affordable housing, improve
transportation, meet the goals of the California Global Warming
Solutions Act of 2006, encourage sustainable land use planning, and
revitalize urban and community centers in a sustainable manner.
This bill would also require the council to develop strategies
that would allow for streamlined and effective mitigation of
infrastructure projects.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Division 13.6 (commencing with Section
21200) is added to the Public Resources Code ,
to read:
DIVISION 13.6. Advance Infrastructure Mitigation Program Act
CHAPTER 1. GENERAL
21200. This division shall be known, and may be cited, as the
Advance Infrastructure Mitigation Program Act.
21201. (a) The purpose of this division is to improve the success
and effectiveness of actions implemented to mitigate the natural
resource impacts of future infrastructure projects by establishing
the means to implement those actions well before the infrastructure
projects are constructed. The advance identification and
implementation of mitigation actions also will streamline the
delivery of infrastructure projects by anticipating mitigation
requirements for planned infrastructure projects and avoiding or
reducing delays associated with environmental permitting. By
identifying regional or statewide conservation priorities and by
anticipating the impacts of planned infrastructure projects on a
regional or statewide basis, mitigation actions can be designed to
protect and restore California's most valuable natural resources and
also facilitate environmental compliance for planned infrastructure
projects on a regional scale.
(b) This division is not intended to create a new environmental
permitting or regulatory program or to modify existing environmental
laws or regulations, nor is it intended to address all mitigation
that may be required for planned infrastructure projects. Instead, it
is intended to provide a way in which to anticipate and fulfill the
requirements of existing state and federal environmental laws that
protect fish, wildlife, plant species, and other natural resources
more efficiently and effectively.
21202. The Legislature finds and declares all of the following:
(a) The minimization and mitigation of environmental impacts is
ordinarily handled on a project-by-project basis, usually at the end
of a project's timeline and without guidance regarding regional or
statewide conservation priorities.
(b) The cost of critical transportation, flood control, and other
infrastructure projects often escalates because of permitting delays
that occur when appropriate conservation and mitigation measures
cannot easily be identified and because the cost of these measures
often increases between the time a project is planned and funded and
the time mitigation is implemented.
(c) Addressing biological conservation and mitigation needs early
in a project's timeline, during project design and development, can
reduce costs and allow natural resources conservation to be
integrated with project siting and design.
(d) When the Department of Transportation, the Department of Water
Resources, and other public agencies are able to anticipate the
mitigation needs for planned infrastructure projects, they can meet
those needs in a more timely and cost-effective way, by using
long-range regional advance mitigation planning.
(e) Working with state and federal resource protection agencies,
the Department of Transportation, the Department of Water Resources,
and other public agencies could identify, conserve, and, where
appropriate, restore lands for mitigation of numerous projects early
in the projects' timelines, thereby allowing public funds to stretch
further by acquiring habitat at a lower cost and avoiding
environmental permitting delays.
(f) Regional advance mitigation planning can provide an effective
means of facilitating delivery of state and federal economic stimulus
funding to infrastructure projects while ensuring more effective
natural resource and wildlife conservation.
(g) Regional advance mitigation planning is needed to direct
mitigation funding for transportation, flood control, and energy
projects to agreed upon conservation priorities and to the creation
of habitat reserves and recreation areas that enhance the
sustainability of human and natural systems by protecting or
restoring connectivity of natural communities and the delivery of
ecosystem services.
(h) Regional advance mitigation planning can facilitate the
implementation of climate change adaptation strategies both for
ecosystems and California's economy.
(i) Regional advance mitigation planning can enable the state to
protect, restore, and recover its natural capital as it strengthens
and improves its infrastructure.
21203. The Legislature intends to do all of the following by
enacting this division:
(a) Facilitate delivery of infrastructure projects while ensuring
more effective natural resource and wildlife conservation.
(b) Develop effective strategies to improve the state's ability to
meet mounting demands for transportation, flood control, and energy
services, and to maximize conservation and other public benefits.
(c) Achieve conservation objectives of statewide and regional
importance by coordinating local, state, and federal funded natural
resource conservation efforts with mitigation actions required for
impacts from public infrastructure projects.
(d) Create administrative, governance, and financial incentives
and mechanisms necessary to ensure that measures required to minimize
or mitigate impacts from infrastructure projects will serve to
achieve regional or statewide natural resource conservation
objectives.
CHAPTER 2. DEFINITIONS
21204. For the purposes of this division, the following terms
have the following meanings:
(a) "Acquire" and "acquisition" mean, with respect to land,
acquisition of fee title or purchase of a conservation easement, that
protects conservation and mitigation values on the land in
perpetuity.
(b) "Agency" means the Natural Resources Agency.
(c) "Infrastructure planning agency" means the Department of
Transportation, the Department of Water Resources, a metropolitan
planning organization, a regional transportation planning agency, or
other public agency that implements infrastructure projects.
(d) "Infrastructure project" means the construction, repair, or
modification of a transportation, flood control, energy, or water
facility.
(e) "Planned infrastructure project" means a project that the
Department of Transportation, the Department of Water Resources, or
other public agency has concluded is reasonably likely to be
constructed within 20 years and that has been identified to the
agency for purposes of this division. A planned infrastructure
project may include, but is not limited to, projects that have been
proposed for approval or approved.
(f) "Program" means the Advance Infrastructure Mitigation Program
implemented pursuant to this division.
(g) "Regional advance mitigation plan" means a regional or
statewide plan developed in accordance with this division that
estimates the potential future compensatory mitigation requirements
for one or more planned infrastructure projects and identifies
mitigation projects, sites, or credits that would fulfill some or all
of those requirements.
(h) "Regulatory agency" means a state and federal natural resource
protection agency with regulatory authority over planned
infrastructure projects. A regulatory agency includes, but is not
limited to, the Department of Fish and Game, California regional
water quality control boards, the United States Fish and Wildlife
Service, the National Marine Fisheries Service, the United States
Environmental Protection Agency, and the United States Army Corps of
Engineers.
CHAPTER 3. ADVANCE INFRASTRUCTURE MITIGATION PROGRAM
21205. This division establishes the Advance Infrastructure
Mitigation Program to fulfill the purposes of this division. The
agency may do any of the following to administer and implement the
program:
(a) Prepare, approve, and implement regional advance mitigation
plans for one or more planned infrastructure projects identified
pursuant to Section 21207. The purpose of a regional advance
mitigation plan is to provide effective mitigation and conservation
of natural resources and natural processes on a landscape, regional,
or statewide scale, to expedite the environmental review of planned
infrastructure projects, and to facilitate the implementation of
measures to mitigate the impacts of those projects by identifying and
implementing mitigation measures in advance of project approval.
(b) Acquire, restore, manage, monitor, and preserve lands, or fund
the acquisition, restoration, management, monitoring, and
preservation of lands, in accordance with a regional advance
mitigation plan approved by the agency pursuant to this division.
(c) Acquire, restore, manage, monitor, and preserve lands, or fund
the acquisition, restoration, management, monitoring, and
preservation of lands, outside of an approved regional advance
mitigation plan if the agency determines that those actions would
conserve or create biological values that are appropriate to mitigate
the estimated impacts of one or more planned infrastructure projects
identified pursuant to Section 21207.
(d) Establish mitigation banks or conservation banks, or fund the
establishment of mitigation banks or conservation banks, in
accordance with applicable state and federal standards. The agency
also may purchase credits at mitigation banks and conservation banks
if the agency determines that the credits provide biologically
appropriate mitigation for one or more planned infrastructure
projects identified pursuant to Section 21207.
(e) Establish the type and quantity of mitigation credits or
values created under the program by obtaining the approval of those
credits or values from relevant regulatory agencies. This division is
not intended to supplant or abrogate the authority of a regulatory
agency to determine mitigation requirements under state or federal
environmental laws or to determine the type or quantity of mitigation
credits or values that may be used to fulfill those requirements.
(f) Use, or allow infrastructure planning agencies to use,
mitigation credits or values created or acquired under the program to
fulfill the mitigation requirements of planned infrastructure
projects if the infrastructure planning agency reimburses the program
for all costs of creating the mitigation credits or values, as
determined by the agency.
21206. A regional advance mitigation plan shall do all of the
following:
(a) Use geographic information system analysis, field surveys, and
principles of conservation planning to estimate the nature and
extent of mitigation requirements of identified planned
infrastructure projects on a regional or statewide basis.
(b) Propose measures to avoid or minimize the adverse
environmental impacts of planned infrastructure projects, including,
where appropriate, the identification of project alignments and
design features that would avoid or minimize those impacts.
(c) Anticipate and provide for compensatory mitigation for planned
infrastructure projects' impacts on natural resources and natural
processes by identifying needed mitigation and, to the extent
practicable, identifying suitable mitigation lands.
(d) Identify and provide for the preservation of wildlife movement
corridors and habitat connectivity to avoid ecological fragmentation
and to enable ecosystem adaptation to climate change.
(e) Consider impacts on water quality and riparian habitat, rare
plant species, sensitive species, and declining natural communities
including oak woodlands, vernal pools, native grasslands, and
serpentine habitat.
(f) Identify the amount of greenhouse gas reductions estimated to
be achieved through the regional advance mitigation plan.
(g) Provide for endowments to manage and monitor acquired or
protected lands, as necessary.
(h) Where available and biologically appropriate, provide for the
purchase of mitigation credits at mitigation banks or conservation
banks or for the payment of mitigation fees within established
mitigation programs.
(i) Analyze the cost effectiveness of available mitigation
alternatives both in terms of environmental benefits and improved
project delivery and certainty.
(j) Include measurable performance objectives and a monitoring and
evaluation program.
21207. (a) An infrastructure planning agency may identify planned
infrastructure projects for the purpose of including those projects
in a regional advance mitigation plan or for other advance mitigation
under the program. The infrastructure planning agency shall provide
an analysis and estimate of the projects' direct, indirect, and
cumulative impacts. The analysis and estimate shall include all
available relevant information regarding those impacts and the
analysis shall be at a level of detail commensurate with the
available relevant information. Detailed analysis shall not be
required where relevant detailed information about the projects'
impacts is not available.
(b) The agency may enter a memorandum of understanding or other
agreement with an infrastructure planning agency to do all of the
following:
(1) Specify terms consistent with this division under which the
program will provide advance mitigation for the identified planned
infrastructure projects.
(2) Establish guidelines for communication and sharing of relevant
information necessary to optimize coordination and collaboration
between the agency and the infrastructure planning agency.
(3) Establish guidelines for strategically locating mitigation and
conservation sites to maximize the biological benefit and
conservation value to target species, habitats, and aquatic
resources.
21208. The Advance Infrastructure Mitigation Fund is established
in the State Treasury. Upon appropriation by the Legislature, all
moneys in the fund shall be used by the agency to administer and
implement the program. All moneys provided by infrastructure planning
agencies to reimburse program expenditures pursuant to subdivision
(f) of Section 21205 shall be deposited in the fund.
21209. The program is intended to improve the efficiency and
efficacy of mitigation only and is not intended to supplant the
requirements of the California Environmental Quality Act (Division 13
(commencing with Section 21000)) or any other environmental law. The
identification of planned infrastructure projects and the
identification of mitigation projects or measures for planned
infrastructure projects under this division does not imply or require
approval of those projects for purposes of the California
Environmental Quality Act (Division 13 (commencing with Section
21000)).
SECTION 1. Section 75125 of the Public
Resources Code is amended to read:
75125. The council shall do all of the following:
(a) Identify and review activities and funding programs of member
state agencies that may be coordinated to improve air and water
quality, improve natural resource protection, increase the
availability of affordable housing, improve transportation, meet the
goals of the California Global Warming Solutions Act of 2006
(Division 25.5 (commencing with Section 38500) of the Health and
Safety Code), encourage sustainable land use planning, develop
strategies that would allow for streamlined and effective mitigation
of infrastructure projects, and revitalize urban and community
centers in a sustainable manner. At a minimum, the council shall
review and comment on the five-year infrastructure plan developed
pursuant to Article 2 (commencing with Section 13100) of Chapter 2 of
Part 3 of Division 3 of the Government Code and the State
Environmental Goals and Policy Report developed pursuant to Section
65041 of the Government Code.
(b) Recommend policies and investment strategies and priorities to
the Governor, the Legislature, and to appropriate state agencies to
encourage the development of sustainable communities, such as those
communities that promote equity, strengthen the economy, protect the
environment, and promote public health and safety, and is consistent
with subdivisions (a) and (c) of Section 75065.
(c) Provide, fund, and distribute data and information to local
governments and regional agencies that will assist in developing and
planning sustainable communities.
(d) Manage and award grants and loans to support the planning and
development of sustainable communities, pursuant to Sections 75127,
75128, and 75129. To implement this subdivision, the council may do
all of the following:
(1) Develop guidelines for awarding financial assistance,
including criteria for eligibility and additional consideration.
(2) Develop criteria for determining the amount of financial
assistance to be awarded. The council shall award a revolving loan to
an applicant for a planning project, unless the council determines
that the applicant lacks the fiscal capacity to carry out the project
without a grant. The council may establish criteria that would allow
the applicant to illustrate an ongoing commitment of financial
resources to ensure the completion of the proposed plan or project.
(3) Provide for payments of interest on loans made pursuant to
this article. The rate of interest shall not exceed the rate earned
by the Pooled Money Investment Board.
(4) Provide for the time period for repaying a loan made pursuant
to this article.
(5) Provide for the recovery of funds from an applicant that fails
to complete the project for which financial assistance was awarded.
The council shall direct the State Controller to recover funds by any
available means.
(6) Provide technical assistance for application preparation.
(7) Designate a state agency or department to administer technical
and financial assistance programs for the disbursing of grants and
loans to support the planning and development of sustainable
communities, pursuant to Sections 75127, 75128, and 75129.
(e) No later than July 1, 2010, and every year thereafter, provide
a report to the Legislature that shall include, but is not limited
to, all of the following:
(1) A list of applicants for financial assistance.
(2) Identification of which applications were approved.
(3) The amounts awarded for each approved application.
(4) The remaining balance of available funds.
(5) A report on the proposed or ongoing management of each funded
project.
(6) Any additional minimum requirements and priorities for a
project or plan proposed in a grant or loan application developed and
adopted by the council pursuant to subdivision (c) of Section 75216.