BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: AB 691 HEARING DATE: June 25, 2013
AUTHOR: Muratsuchi URGENCY: No
VERSION: April 22, 2013 CONSULTANT: Katharine Moore
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: State lands: granted trust lands: sea level rise.
BACKGROUND AND EXISTING LAW
The California State Lands Commission (commission) was created
by the Legislature in 1938 as an independent body composed of
three members - the Lieutenant Governor, State Controller and
the Director of Finance. Among other duties, the commission is
responsible for managing over 4 million acres of sovereign land
acquired by California at statehood. These sovereign lands
include the beds of navigable rivers, lakes and streams, and
tide and submerged lands. These lands are subject to the common
law public trust doctrine which protects the public's right to
use California's waterways for commerce, navigation, fishing,
boating, natural habitat protection, and other water-oriented
activities.
Public trust lands are held in trust by the state for the
benefit of the people of California. Periodically, however, the
Legislature transfers sovereign lands to local government
entities for management purposes subject to certain terms and
conditions, including the public trust. The state retains
oversight authority over public trust lands granted to local
governments. Currently, there are 85 grants to local
governments (grantees). The grantee is a trustee to the lands
and the revenues generated from these lands are held in trust
and may only be used for purposes consistent with the public
trust. Examples of granted lands include the Ports of San
Francisco, Oakland, and San Diego.
According to the National Research Council, the sea level off
most of the state's coast is expected to rise approximately 1.4
meters by 2100, an amount slightly higher than projected for
global sea levels. This sea level rise will likely increase
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damage in the state's coastal areas from storm surges and high
waves. This is an issue that has serious implications for
public trust lands held by local trustees. For example, in
California's coastal areas approximately one-half million people
(based upon the 2009 population) and $100 billion of property
would be at risk at the end of the century from the estimated
impact of a 100 year storm coupled with the anticipated sea
level rise.
In 2009, the commission sent 104 surveys regarding sea level
rise to all of its grantees and lessees of major facilities
along the coast and San Francisco Bay. Of the 104 surveys sent,
40 were completed and returned. The responses indicated that
most trustees have not yet begun to comprehensively consider the
impacts of sea level rise. A similar survey was conducted in
2010 and yielded similar results.
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PROPOSED LAW
This bill would require that addressing sea level rise is among
the management priorities for local trustees of granted lands.
Specifically, this bill would:
Require a local trustee, where average granted land
revenues are greater than $250,000 annually for a specified
period, to prepare and submit an assessment to the
commission on how the local trustee proposes to address sea
level rise by January 1, 2019.
Permit, but not require, a local trustee whose revenues
are less than $250,000 annually, to prepare and submit the
assessment.
Allow a local trustee to submit an existing assessment.
Allow the commission to exempt a local trustee from
providing the assessment if specified conditions are met
including that insufficient funds are available to pay for
the assessment, and the costs of the assessment outweigh
its benefits.
Specify sources of information for and the content of
the assessment, including, for example, the estimated
economic impact of sea level rise on the granted lands and
maps showing the impact of future sea level rise on granted
lands.
Specify assessment submission requirements, including
that it be publicly available on the commission's Internet
web-site.
Not require that the local trustee take any specified
action on sea level rise.
ARGUMENTS IN SUPPORT
According to the author, this bill "would ensure that a local
trustee takes reasonable steps to protect public trust lands
from sea level rise. [?] AB 691 begins the process of taking
reasonable and wise steps to preventing Californians from losing
these important public assets."
"This bill places the responsibility in the hands of the local
trustee because they are the ones best equipped to assess sea
level rise."
The Sierra Club California states "requiring local trustees to
address the impacts of impending changes such as sea level rise
ensures that economic and natural communities in the potentially
affected areas are prepared. The requirement also elevates
public attention to climate change's serious consequences.
Providing public access to the documents creates a transparency
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which holds the local trustees accountable."
ARGUMENTS IN OPPOSITION
In a joint letter, the California State Association of Counties
and the League of California Cities stated that "we're already
planning for sea level rise" and that AB 691 represented
"another mandate for local government." The two opponents raise
concerns about the uncertainty of which grantees would be
affected by the bill and the potential duplication of existing
requirements to address sea level rise in existing local
planning processes. Both express a wish to continue working
with the author's office.
COMMENTS
This bill is a work-in-progress . Negotiations are underway
between the author's office and stakeholders regarding the
concerns raised by the opponents. The committee may wish to
direct committee staff to participate in these negotiations.
Which costs? Public trust lands are managed to maintain their
public trust value which includes, as noted above,
water-oriented activities, recreation and natural habitat
protection, among others. The committee may wish to clarify
that when the commission is evaluating whether to exempt a
trustee from providing an assessment of sea level rise that the
economic benefits of the ecological values of the granted public
trust lands' natural resources be considered in the cost-benefit
analysis (Amendment 1).
Breach of trust responsibilities ? A local trustee's failure to
plan for seal level rise may be considered a breach of its trust
responsibilities since the trustee has a fiduciary duty to the
people of California to take reasonable steps under the
circumstances to take and keep control of and to preserve the
trust property (see Public Resources Code §6009.1). Requiring
the local trustee to perform the sea level rise assessment
required by this bill should assist in meeting the trustee's
obligations.
CEQA? The assessment project required by this bill appears to
fall under the feasibility or planning studies exemption in the
California Environmental Quality Act and, thus, no environmental
impact report or negative declaration is required.
State planning for climate change . Many state entities
including the Natural Resources Agency, the Governor's Office of
Planning and Research, the Strategic Growth Council, the Ocean
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Protection Council, the San Francisco Bay Conservation and
Development Commission, the California Coastal Commission and
the commission have supported efforts to develop tools, increase
accessibility to existing state data and provide additional data
and tools to help local, regional, and state agencies make
informed decisions about sea level rise.
Related legislation
AB 752 (Brownley, 2011) would have required local trustees to
perform an assessment of sea level rise on granted lands (held
in Senate Natural Resources and Water Committee)
SUGGESTED AMENDMENTS
AMENDMENT 1
Page 6, insert after the period in line 24:
"In making this determination, the economic benefits of all
ecological services provided by the existing natural
resources in the local trustee's granted public trust lands
shall be considered."
SUPPORT
State Lands Commission (co-sponsor)
John Chiang, California State Controller (co-sponsor)
Sierra Club California
California Coastkeeper Alliance
Coastal Environmental Rights Foundation
OPPOSITION
League of California Cities (unless amended)
California State Association of Counties (unless amended)
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