BILL ANALYSIS AB 1321 Page 1 Date of Hearing: April 27, 2009 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Nancy Skinner, Chair AB 1321 (Eng) - As Amended: April 2, 2009 SUBJECT : Mitigation of infrastructure project impacts SUMMARY : Authorize the Natural Resources Agency (NRA) to develop a program to mitigate the impacts of infrastructure projects proposed by a public agency on a regional or statewide scale in advance of project approval. EXISTING LAW : 1)Pursuant to the California Environmental Quality Act (CEQA), requires a public agency to prepare an environmental impact report (EIR) for a project that may have a significant impact on the environment. An EIR must identify mitigation measures proposed to minimize significant impacts on the environment and include a monitoring program to ensure compliance with these measures. 2)Pursuant to the Sacramento-San Joaquin Valley Wetlands Mitigation Bank Act of 1993, requires the Department of Fish and Game (DFG) to establish standards and criteria to qualify mitigation banks within the Sacramento-San Joaquin Valley and evaluate of wetland habitat acreage and values created at the bank sites. The criteria must, at a minimum, require the newly created wetlands to provide the hydrologic, vegetative, and wildlife characteristics, including the food web components, of a naturally occurring wetland system that is equal to the site being mitigated. THIS BILL : 1)Defines "infrastructure planning agency" to mean the Department of Transportation (Caltrans), the Department of Water Resources (DWR), a metropolitan planning organization, a regional transportation planning agency, or other public agency that implements infrastructure projects. 2)Defines "infrastructure project" to mean the construction, repair, or modification of a transportation, flood control, energy, or water facility. AB 1321 Page 2 3)Defines "planned infrastructure project" to mean a project that Caltrans, DWR or other public agency has concluded is reasonably likely to be constructed within 20 years, and may include projects that have been proposed for approval or approved. 4)Defines "regional advance mitigation plan" (RAMP) to mean a regional or statewide plan 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. A RAMP must propose measures to avoid or minimize impacts, anticipate and mitigate these impacts, estimate greenhouse gas emissions reductions, provide an endowment to manage or monitor lands acquired or protected, provide for the purchase of credits at mitigation banks or payment of mitigation fees, analyze the cost-effectiveness of mitigation alternatives, and measure and evaluate performance. 5)Establishes the Advance Infrastructure Mitigation Program (Program) and authorizes NRA to: a) Prepare, approve, and implement RAMPs for one or more planned infrastructure projects. b) Acquire, restore, manage, monitor, and preserve lands, or fund the acquisition, restoration, management, monitoring, and preservation of lands, in accordance with a RAMP or irrespective of under specified conditions. c) Establish or fund the creation of mitigation banks or conservation banks; the agency also may purchase credits at these banks. d) 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. 6)Authorizes an infrastructure planning agency to identify projects for the purpose of including them in a Mitigation Plan; the agency must analyze project impacts at a level of detail commensurate with available information. AB 1321 Page 3 7)Creates an Advance Infrastructure Mitigation Fund in the State Treasury. 8)Provides 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 identification of planned infrastructure projects and the identification of mitigation projects does not imply or require approval of those projects under CEQA. COMMENTS : According to the author's office: Proactive regional advance mitigation planning will allow state and federal agencies to anticipate the environmental impacts of several planned infrastructure projects at once, and to identify regional mitigation opportunities that will satisfy anticipated mitigation requirements before the projects are in the final stages of environmental review, when the need to identify specific mitigation measures can delay project approvals. Working together, natural resource and infrastructure agencies can identify appropriate mitigation early in the projects' timelines, avoiding permitting and regulatory delays and allowing public mitigation dollars to stretch further by securing and conserving valuable natural resources on a more economically efficient scale and before related real estate values escalate. 1)RAMP Working Group. The theory behind advanced mitigation goes like this: instead of mitigating project impacts on a case-by-case, isolated basis after project implementation, why not estimate and combine impacts from multiple projects in a similar region or watershed prior to implementation, aggregate those impacts, then mitigate by restoring or acquiring larger or more cohesive habitat consistent with the state or federal conservation priorities. According to the author, the benefits include a capacity to: conserve larger areas of higher quality habitat; leverage other conservation efforts, streamline project approval and reduce delays; ensure greater regulatory and fiscal certainty for a public agency; and potentially, lower mitigation impact ratios (more mitigation acres than impacted acres is sometimes required to account for lower quality habitat or the temporal loss of AB 1321 Page 4 habitat between the time of impact and mitigation) because habitat is already protected or temporal impacts are minimized. Since the spring of 2008, a working group of state and federal agencies, including Caltrans, DWR, DFG, Parks and Recreation, U.S. EPA, Army Corps of Engineers, U.S. Fish and Wildlife Service, and the Nature Conservancy, the sponsor of this bill, have been exploring the potential for implementing regional advance mitigation in California. Though not endorsed by these agencies, this bill seeks to further advance the concept of RAMP to giving NRA express authorization to prepare and implement RAMPs. A pilot program in the Central Valley will begin this fall in order to assess whether certain DWR and Caltrans projects share similar impacts that can be mitigated in advance on a regional basis. North Carolina, Georgia and Florida have all implemented variations on this concept but North Carolina's experience is hailed as the most successful; reportedly 90% of the North Carolina Department of Transportation's wetlands mitigation needs have been fulfilled through its RAMP and no projects have been delayed due to mitigation issues since the start of the program. 2)State already has advance mitigation tools in its toolbox As part of the Program, this bill authorizes NRA to establish, fund the creation of, or purchase credits from a mitigation or conservation (e.g., for protected species) bank-one of several advance mitigation approaches contemplated by this bill. Mitigation or conservation banking, in existence for well over a decade, is a market mechanism where a permittee can purchase credits, the value of which is based on habitat function or acreage, in an existing for-profit or non-profit conservation project. This approach transfers the responsibility and legally liability for the success of a project to the bank's sponsor or owner, an attractive feature for developers. Mitigation banking is generally preferred by regulators and developers since it is the most reliable form of compensatory mitigation, is easier to monitor and manage, transfers liability to the banker, and provides more regulatory certainty. CDF has approved roughly 38 public and private mitigation and conservation banks in the state. Credits can be purchased for impacts to wetlands, vernal pools, burrowing owls, Giant Garter AB 1321 Page 5 Snakes, Swainson's Hawk, Red-legged Frogs, and San Joaquin Kit Fox, for example. Caltrans is a bank developer (67 acre wetland bank in Sacramento County) and purchaser of credits from private banks. Another advance mitigation tool is the state's Natural Communites Conservation Planning Act, the goal of which is to conserve natural communities at the region or ecosystem scale while accommodating compatible land use. According to DFG, a NCCP "seeks to anticipate and prevent the controversies and gridlock caused by species' listings by focusing on the long-term stability of wildlife and plant communities and including key interests in the process." 3)Concerns with the bill a) This bill authorizes NRA to prepare RAMPs for a project that Caltrans, DWR, or other public agency concludes is reasonably likely to be constructed within 20 years. NRA is also authorized to acquire, restore, and manage lands, establish mitigation or conservation banks, fund the creation of banks, or buy credits at a bank, all which it currently can do under existing law. b) Anticipating or accurately assessing the impacts of a project (yet to be approved) with sufficient confidence in order to mitigate these impacts in advance is challenging. It is even more challenging without an adequate project description, which can change throughout project design and review process, or without the benefit of biological field surveys, for example. Of course, a RAMP won't be appropriate for all projects or agencies. It's possible that the impacts of levee or highway widening can be predicted with more than 50% confidence. c) This bill makes clear that RAMP is not intended to supplant CEQA or other laws nor does it imply or require approval of a project under CEQA. However, an infrastructure agency will obviously need sufficient certainty that a project will obtain CEQA or other regulatory compliance before investing scarce public resources into a mitigation project. Would CEQA, endangered species, or other laws provide sufficient flexibility to accommodate advance mitigation? What if advance mitigation does not adequately compensate for AB 1321 Page 6 losses that turn out to be greater or more significant? d) The bill defines an infrastructure project as one that is reasonably likely to be constructed within 20 years. Projects with such a long lead time may ultimately not be necessary or materialize; moreover, how can an agency be certain that impacts identified now will remain impacts 20 years from now, especially given species migration, sea-level rise or habitat degradation due to climate change; thus, the state may be investing scarce mitigation or bond resources without the certainty the mitigation will be necessary. The author has indicated that a 2-5 project lead time is probably more realistic. e) This bill only authorizes NRA to create a mitigation bank, something the state is already doing, but should it expand its current role in creating mitigation banks, given the liabilities it would assume for the success or failure of a bank? Could the state effectively compete with private banks? f) Would advance mitigation relieve put less pressure on agencies to avoid impacts? This bill, however, does not change existing requirements to avoid or minimize impacts when feasible. 4)Suggested amendments This bill only refers to the acquisition, restoration, and preservation of lands. The author and committee may wish to consider adding water, aquatic resources and fisheries. Page 9, lines 29-34 should be amended to read: 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)) or any other environmental law . AB 1321 Page 7 REGISTERED SUPPORT / OPPOSITION : Support Audubon California California Council of Land Trusts California League of Conservation Voters Nature Conservancy 1 individual Opposition None on file Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092