BILL ANALYSIS Ó
AB 2509
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2509 (Nielsen)
As Amended June 28, 2012
Majority vote
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|ASSEMBLY: |75-0 |(May 17, 2012) |SENATE: |36-0 |(July 5, 2012) |
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Original Committee Reference: NAT. RES.
SUMMARY : Exempts activities related to the immediate
restoration of lands affected by a natural disaster or flood
from the Surface Mining and Reclamation Act (SMARA) without
being subject to existing regulatory restrictions on the amount
of mineral materials that can be exported for commercial
purposes.
The Senate amendments :
1)Delete the Assembly amendments.
2)Exempt the following activities from SMARA without being
subject to existing regulatory restrictions on the amount of
mineral materials that can be exported for commercial
purposes:
a) The immediate excavation or grading of lands affected by
a natural disaster for the purpose of restoring those lands
to their prior condition; and,
b) The immediate removal of material deposited by a flood
onto lands being farmed for the purpose of restoring those
lands to their prior condition.
EXISTING LAW :
1)Creates SMARA, which prohibits a person from conducting
surface mining operations unless the lead agency for the
operation issues a surface mining permit and approves a
reclamation plan and financial assurances for reclamation.
Depending on the circumstances, a lead agency can be a city,
county, the San Francisco Bay Conservation and Development
Commission, or the State Mining and Geology Board (Board)
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within the Department of Conservation (Department).
2)Exempts, pursuant to Public Resources Code (PRC) Section 2714,
several surface mining activities from the requirements of
SMARA, including:
a) Excavations or grading conducted for farming or the
immediate excavation or grading of lands affected by a
flood or natural disaster for the purpose of restoring
those lands to their prior condition (Farming and Flood
Exemption); and,
b) Prospecting for, or the extraction of, minerals for
commercial purposes where the removal of overburden or
mineral product totals less than 1,000 cubic yards in any
one location, and the total surface area disturbed is less
than one acre (1,000 Cubic Yards Exemption).
3)Prohibits, pursuant to California Code of Regulations (CCR)
Section 3505 of Title 14, the Farming and Flood Exemption from
applying to the excavation, grading, or transportation of
mineral materials, including overburden that is wholly
integral and necessary to the conduct of agricultural
activities if the exportation of mineral materials, including
overburden, from the property is in excess of 1,000 cubic
yards for commercial purposes.
AS PASSED BY THE ASSEMBLY , this bill:
1)Allowed a person to utilize the Farming and Flood Exemption
regardless of the amount of mineral materials exported for
commercial purposes.
2)Allowed a person utilizing the Farming and Flood Exemption to
sell the mineral materials to the extent that the proceeds
offset the costs of excavating, grading, and exporting.
3)Required a person utilizing the Farming and Flood Exemption to
maintain all records regarding the sale of overburden or
mineral product for at least five years and make the records
available to any public agency upon request.
4)Required a person utilizing the Farming and Flood Exemption to
perform restoration activities within a reasonable time,
considering the circumstances, after the flood or natural
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disaster has occurred.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS : According to the author's office, this bill will
"correct a regulation that is stopping farmers and ranchers from
removing and selling soil from their fields that have been
deposited by floods."
The Legislature in adopting SMARA intended to create and
maintain an effective surface mining and reclamation policy to
prevent or minimize adverse environmental effects, reclaim mined
lands to a usable condition that is adaptable to alternative
uses, and encourage the production and conservation of minerals
while giving consideration to values relating to recreation,
watershed, wildlife, range and forage, and aesthetic enjoyment.
PRC Section 2714 lists several exemptions to SMARA, most of
which involve infrequent, minor, or incidental surface
disturbances. Two of these exemptions are the Farming and Flood
Exemption and the 1,000 Cubic Yards Exemption, which PRC Section
2714 appears to treat as separate and distinct from each other.
The Board's regulations (through CCR Section 3505), however,
essentially restricts parts of the Farming and Flood Exemption
by the 1,000 Cubic Yards Exemption. This regulation does not
seem to be consistent with California rulemaking law, which
requires regulations to be in harmony with, and not in conflict
or contradictory to, existing law.
The author cites a recent case, the Goose Farm North Project, in
which a property owner applied for a one-time SMARA exemption
from the Board to remove silt, sand, and debris derived from
over flow and flooding from a nearby river. The property owner
proposed to grade the land so it would be level and suitable for
agricultural purposes. The project was anticipated to exceed
the extraction of 1,000 cubic yards of material for commercial
purposes. According to the sponsor, without an exemption, it
would have been too costly for the property owner to comply with
SMARA, which requires a reclamation plan and financial
assurances.
The Goose Farm North Project case seemed to fit perfectly within
the Farming and Flood Exemption-the grading would be conducted
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for farming as well as to restore lands that had been flooded.
The Board's Executive Officer's Report for this case, however,
made no reference to the Farming and Flood Exemption (presumably
because of CCR Section 3505). Instead, the Board analyzed the
case under a more complicated exemption.
The Senate amendments create a new subdivision in PRC Section
2714 for activities related to the immediate restoration of
lands affected by a natural disaster or flood. The new
subdivision places these activities out of the reach of CCR
Section 3505's restrictions. As such, these amendments should
make it less difficult for a restoration project, such as the
Goose Farm North Project, to receive a SMARA exemption.
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
FN: 0004437