BILL ANALYSIS Ó
SB 455
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Date of Hearing: July 2, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 455 (Pavley) - As Amended: June 11, 2012
SENATE VOTE : 21-3
SUBJECT : Forestry: timberlands: conversion mitigation
SUMMARY : Requires all mitigation associated with timberland
conversion projects, including greenhouse gas (GHG) mitigation,
to be on lands that secure the mitigation with a permanent
conservation easement and include, at a minimum, the
reforestation of a previously forested area.
EXISTING LAW :
1)Pursuant to the California Global Warming Solutions Act (AB
32), requires California Air Resources Board (ARB) to adopt a
statewide GHG emissions limit equivalent to 1990 levels by
2020 and adopt regulations to achieve maximum technologically
feasible and cost-effective GHG emission reductions. ARB's
regulations are, among other things, required to ensure that
the GHG emission reductions achieved are real, permanent,
quantifiable, verifiable, and enforceable.
2)Pursuant to the California Environmental Quality Act (CEQA),
requires a lead agency with the principal responsibility for
carrying out or approving a proposed discretionary project to
evaluate the environmental effects of its action and prepare a
negative declaration, mitigated negative declaration, or
environmental impact report (EIR). If an initial study shows
that the project may have a significant effect on the
environment, the lead agency must prepare an EIR. A lead
agency must base its determination of significant effects on
substantial evidence. The state is required to prepare, adopt
and periodically update guidelines for the mitigation of GHG
emissions as required by CEQA.
3)Pursuant to the CEQA Guidelines, requires a lead agency to
consider feasible means, supported by substantial evidence and
subject to monitoring or reporting, of mitigating the
significant effects of GHG emissions. Measures to mitigate the
significant effects of GHG emissions may include, among
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others, (1) measures in an existing plan or mitigation program
for the reduction of emissions that are required as part of
the lead agency's decision; (2) reductions in emissions
resulting from a project through implementation of project
features, project design, or other measures; (3) off-site
measures, including offsets that are not otherwise required,
to mitigate a project's emissions; (4) measures that sequester
GHG; and (5) in the case of the adoption of a plan, such as a
general plan, long range development plan, or plans for the
reduction of GHG, mitigation may include the identification of
specific measures that may be implemented on a
project-by-project basis. Mitigation may also include the
incorporation of specific measures or policies found in an
adopted ordinance or regulation that reduces the cumulative
effect of emissions.
4)Pursuant to CEQA, authorizes a timber harvest plan or other
plan required under the Z'berg-Nejedly Forest Practice Act
(FPA) to be submitted in lieu of an EIR if the Secretary of
the Natural Resources Agency finds that the plan is in
compliance with standards in CEQA. The Secretary of the
Natural Resources Agency (NRA) has made such findings.
5)Pursuant to the FPA:
a) Requires any person who intends to convert timberlands
to another use to file an application for conversion with
the Board of Forestry and Fire Protection (Board). If the
timberland conversion is proposed in a timberland
production zone, the application must provide specific
information regarding proposed alternate use. The Board is
required to approve the application for conversion only if
it finds that (1) the conversion would be in the public
interest; (2) the conversion would not have a substantial
and unmitigated adverse effect upon the continued
timber-growing use or open-space use of other surrounding
lands zoned as timber production; and (3) the soils,
slopes, and watershed conditions would be suitable for the
uses proposed if the conversion were approved. The
existence of an opportunity for an alternative use of the
land or the uneconomic character of the existing use shall
not alone be sufficient reason for conditionally approving
an application for conversion.
b) Requires an applicant for timberland conversion to
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submit an affidavit with his/her application for conversion
stating that he/she has a present bona fide intent to
convert the land to a use other than timber growing. If
the Board finds the applicant does have a bona fide
intention to convert the land, it shall approve the
application authorizing the applicant to cut and remove any
and all trees, provided that he/she otherwise complies with
the state's FPA.
c) Authorizes the Board to exempt a person from the FPA's
requirements whose activities are limited to the one-time
timberland conversion of less than three acres. A person
may not receive more than one exemption in a five-year
period. The Board must determine that the exemption is
consistent with the FPA.
THIS BILL :
1)Prohibits the approval of an application for conversion of
timberlands of three or more acres unless the Department of
Forestry and Fire Protection (CAL FIRE) finds all of the
following:
a) In consultation with the Department of Fish and Game,
all of the environmental impacts of the conversion,
including impacts on wildlife, habitat values, and forest
type are fully mitigated.
b) The mitigation occurs on California timberlands and
complies with the state's GHG reduction principles, which
generally require that (1) GHG reductions achieved are
real, permanent, quantifiable, verifiable, and enforceable
by ARB and (2) the reduction is in addition to any GHG
reduction otherwise required by law or regulation, and any
other GHG reduction that otherwise would occur.
c) The mitigation includes the loss of carbon in
above-ground and below-ground biomass and the loss of
future ongoing carbon sequestration. The mitigation shall
be consistent with the GHG methodologies approved by ARB.
d) The mitigation will be implemented within one year of
the conversion as specified in paragraph "3" below.
2)Requires all mitigation associated with conversion projects to
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be on lands that secure the mitigation with a permanent
conservation easement and include the reforestation of a
previously forested area at a minimum acreage ratio of 1:1.
The lands on which this mitigation occurs shall not have been
in forest cover for at least 10 years. To the extent the
reforestation activity does not fully mitigate the impacts of
the conversion project, the applicant shall undertake one or a
combination of the following actions:
a) Avoid the loss of carbon in above-ground and
below-ground biomass by preserving timberland at risk of
conversion.
b) Manage timberlands to sequester additional carbon in
above-ground and below-ground forest biomass.
3)Requires the mitigation to be implemented within one year of
the conversion to nonforest use and in either of the following
ways:
a) The permit applicant may undertake the mitigation
directly, if the department finds that the mitigation will
comply with this section.
b) The permit applicant may undertake the mitigation
through contracts or other agreements with the state, or if
the department finds that the mitigation will comply with
this section, with third parties that have expertise in
managing timberlands, including local conservation corps,
nonprofit organizations, or private landowners.
4)Creates the Timberland Conversion Services Fund (Fund) in the
State Treasury, to be administered by the NRA. All moneys
received by the agency pursuant to a mitigation agreement
authorized by this bill (see subparagraph "b" of paragraph "3"
above) shall be deposited in the Fund and expended to mitigate
the timberland conversion that is the subject of that
agreement.
5)Exempts conversions that comply with the "less than three
acres" exemption (see subparagraph "c" of paragraph "5" of
"EXISTING LAW").
6)Authorizes CAL FIRE to exempt from the provisions of this bill
a county that adopts a timberland conversion and mitigation
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ordinance that it finds meets or exceeds the mitigation
requirements of this section.
7)Requires CAL FIRE to develop guidelines to assist in
compliance with this section. Any guidelines shall be
developed in consultation with and approved by ARB and shall
be consistent with ARB's GHG accounting method. ARB and CAL
FIRE may seek reimbursement of their costs from any
appropriate source including the Fund.
8)Establishes that the requirements imposed by this bill for the
approval of a timberland conversion permit are in addition to
any other requirements established by law or regulation.
9)Authorizes Cal Fire to collect a fee for permits applicable to
the conversion of timberlands of three or more acres to pay
for administrative costs.
FISCAL EFFECT : Unknown. This bill is substantially different
than the version that was analyzed by the Senate Appropriations
Committee.
COMMENTS :
1)Purpose of the Bill. California's forests provide a
significant climate service to the state, sequestering over 5
million metric tons of carbon pollution annually. There has
been, however, increasing pressure for private timberland
owners to find economically attractive uses for their
property. Timber management has become less profitable for a
number of reasons and landowners often see increasing
opportunities to develop rural subdivisions or establish
vineyards. As timberlands are converted to other uses, much
of the carbon stored in these forests is emitted to the
atmosphere and the ongoing carbon sequestration benefits, as
well as many other benefits (e.g. water quality protection,
habitat, timber resources) are diminished, if not entirely
lost. From 1997 to 2012, 14,654 acres of timberlands in the
state were converted to alternate uses. Nevada, Placer,
Plumas, Siskiyou, and Mendocino Counties have been affected
the most, with 2,564, 2,309, 2,274, 1644, and 1,013 acres
converted, respectively.
According to the author, "there is no explicit provision in
the CEQA guidelines for mitigation of carbon emissions or lost
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carbon sequestration potential from conversions of timberland
to non-timberland uses?This bill would clarify that the
conversion of projects larger than 3 acres must mitigate all
of its impacts."
Additionally, according to the cosponsors (The Nature
Conservancy and The Pacific Forest Trust), this bill "provides
an incentive to timberland owners to mitigate the impacts of
conversion that does occur by creating a funding stream to pay
landowners to provide mitigation through activities such as
reforestation, changes in management and conservation. These
complementary actions will help California maintain its
valuable timberland, their public benefits and the jobs that
depend on these resources."
2)GHG Mitigation under CEQA. Generally under CEQA, an EIR must
accurately describe the proposed project, identify and analyze
each significant environmental impact expected to result from
the proposed project, identify mitigation measures to reduce
those impacts to the extent feasible, and evaluate a range of
reasonable alternatives to the proposed project. Prior to
approving any project that has received environmental review,
an agency must make certain findings. If mitigation measures
are required or incorporated into a project, the agency must
adopt a reporting or monitoring program to ensure compliance
with those measures.
In December 2009, as directed by SB 97 (Dutton), Chapter 185,
Statutes of 2007, the NRA adopted amendments to the CEQA
Guidelines for GHG. Section 15064.4 of the CEQA Guidelines
now provide guidance to lead agencies for determining
significant effects of GHG emissions, but stop short of
articulating a clear quantitative standard. As is common with
CEQA, lead agencies have discretion, bounded by the basic
requirement that a lead agency must base its determination of
significant effects on substantial evidence relevant to the
project in question.
3)Timberland Conversion Process . According to a recent CAL FIRE
white paper on timberland conversion, when a California
timberland owner makes the decision to convert his/her
timberland to other non-timber growing uses, or wishes to
change the zoning of his/her land from Timberland Production
Zone to another zoning class to allow for an alternate use,
he/she is required to submit an Application for Timberland
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Conversion Permit to CAL FIRE, unless otherwise exempt. CAL
FIRE has the responsibility, as delegated by the Board, for
the approval of Timberland Conversion Permits (TCP). A TCP,
among other things, exempts the timberland owner from the
timber stocking requirements of the forest practice rules
(FPR).
CAL FIRE's approval of a TCP for the purpose of converting
timberland is a "project" subject to CEQA and is not covered
by the functional equivalency of the FPR or THP process.
Therefore, timberland owners and their consultants are
required to prepare the necessary environmental documents for
review and action by CAL FIRE as the CEQA lead agency. In the
event that a conversion project involves local government
acting as the CEQA lead agency, CAL FIRE may approve the TCP
and THP by tiering to the lead agency's final CEQA document.
4)Suggested Amendments. The author and committee may wish to
make a cleanup amendment that fixes a typo on line 24, page 6
of the bill. This amendment will delete "(a)" and replace it
with "(2)."
5)Similar Legislation. SB 466 (Steinberg, 2007), which was held
in the Senate Appropriations Committee, was introduced to
impose, among other things, a menu of mitigation options on
forestland conversions with the mitigation lands being managed
pursuant to the Forestry Protocols of the Climate Action
Registry.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
Nature Conservancy
Pacific Forest Trust
Opposition
California Licensed Foresters Association
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092
SB 455
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