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.
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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.
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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
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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
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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
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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 .
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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