Amended in Assembly March 11, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 823

Introduced by Assembly Member Eggman

February 21, 2013

An act to add begin delete Section 21095.5 end delete begin insert Sections 21095.5, 21095.6, and 21095.7 end insert to the Public Resources Code, relating to the environment.

LEGISLATIVE COUNSEL’S DIGEST

AB 823, as amended, Eggman. Environment: begin delete agricultural land: mitigation. end delete begin insert California Farmland Protection Act. end insert

(1) The California Environmental Quality Act (CEQA) requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. CEQA also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment.

This bill would begin delete require a lead agency, for a project that converts agricultural lands for nonagricultural uses, to require mitigation measures consisting, at a minimum, of providing replacement acreage through specified mechanisms to ensure the availability of agricultural production capacity. Because a lead agency would be required to provide a higher level of service by requiring the specified mitigation measure, the bill would impose a state-mandated local program end delete begin insert enact the California Farmland Protection Act, which would require that an applicant for a project, as defined, that involves the conversion of agricultural land to a permanent or long-term nonagricultural use, including a residential, commercial, civic, industrial, infrastructure, or other similar use, at a minimum, mitigate the identified environmental impacts associated with the conversion of those lands through the permanent protection and conservation of land suitable for agricultural uses, and would require that an adopted mitigation measure providing for the protection of agricultural land meet specified requirements. The act would require that any lands identified and proposed for conservation and protection meet specified criteria. The act would provide that a project is deemed to have fully mitigated all identified significant project-level and cumulative impacts on agricultural resources and no further mitigation is required if specified conditions are met. The act would require the Office of Planning and Research, no later than December 31, 2014, to promulgate regulations covering projects subject to the act. By imposing new duties on a lead agency with regard to the review and approval of the mitigation measures required by the act, the bill would impose a state-mandated local program end insert .

(2)  The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

begin delete

SECTION 1.  

(a) The Legislature finds and declares that
California agriculture is a $43,000,000,000 per year industry, one
of the state’s largest and most significant industries. California
agriculture supplies 90 percent of the nation’s nuts and wine grapes,
more than one-half of the country’s fruits and vegetables and is
the leading producer of dairy products.

(b) It is the intent of the Legislature to enhance the long-term
viability of California agriculture by clarifying farmland mitigation
requirements under the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public
Resources Code.

end delete

begin delete

SEC. 2.  

Section 21095.5 is added to the Public Resources Code,
to read:

21095.5.  

For a project that converts agricultural lands for
nonagricultural uses, the lead agency shall require mitigation
measures consisting, at a minimum, of providing replacement
acreage through a grant, in perpetuity, of an agricultural or
farmland conservation easement, a deed restriction, or other
conservation mechanism on the replacement acreage to ensure the
availability of agricultural production capacity by limiting
nonagricultural development that is inconsistent with agricultural
uses and related activities for the benefit of a qualified entity.

end delete

begin insert

begin insert SECTION 1. end insert   

end insert begin insert

This act shall be known, and may be cited, as the
California Farmland Protection Act.

end insert

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 21095.5 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

begin insert

begin insert 21095.5. end insert   

(a) The Legislature finds and declares all of the
following:

(1) California is the nation’s leader in food production and
contributes significantly to both national and global food security.

(2) California agricultural production depends on soil, water,
and climate conditions found in one of only five Mediterranean
growing regions on Earth.

(3) Dependent on land and natural resources, California
agriculture is uniquely vulnerable to global warming. Global
warming poses a serious threat to California agriculture with
rising temperatures, constrained water resources, increases in
extreme weather events, reduced winter chilling hours, and rising
sea levels.

(4) California agriculture is also uniquely positioned to provide
climate benefits by reducing greenhouse gas emissions. Research
funded by the State Energy Resources Conservation and
Development Commission’s Public Interest Energy Research
program found that an acre of irrigated cropland emits 70 times
fewer greenhouse gas emissions than an acre of urban land.

(5) California’s growing population places additional demands
on both our food supply and on the development of agricultural
land for nonagricultural purposes. An average of approximately
30,000 acres of California agricultural land is permanently
converted to nonagricultural uses every year.

(6) The preservation of a maximum amount of the limited supply
of agricultural land is necessary for conservation of the state’s
natural resources, the maintenance of the agricultural economy
of the state, and the assurance of an adequate, healthy, and
nutritious food supply for the residents of this state and nation.

(7) California’s statewide land use planning priorities include
the goal of protecting, preserving, and enhancing the state’s most
valuable natural resources, including working landscapes such
as farm, range, and forest lands as described in Section 65041.1
of the Government Code.

(8) Through the California Land Conservation Act of 1965
(Article 1 (commencing with Section 51200) of Chapter 7 of Part
1 of Division 1 of Title 5 of the Government Code), California has
provided legal and financial incentives for farmers and ranchers
to keep land in agricultural production, thereby discouraging the
premature and unnecessary conversion of agricultural land to
urban uses and discouraging discontiguous urban development
patterns that unnecessarily increase the costs of community
services.

(9) Since 1998, California has invested in the protection of
agricultural lands near urban areas through the California
Farmland Conservancy Program Act (Division 10.2 (commencing
with Section 10200)) recognizing that conservation of these lands
is necessary due to increasing development pressures and the
effects of urbanization on farmland close to cities.

(10) This division requires the analysis and adoption of feasible
mitigation for projects with significant effects on agricultural
resources.

(11) Local entities play a vital role in regulating the use of land
under their jurisdiction, including the conservation of agricultural
lands through appropriate zoning and planning activities, as well
as determinations of the potential environmental impacts of
proposed land use changes.

(12) Despite the analysis and mitigation requirements of this
division with respect to projects that result in agricultural land
conversion, lead agencies do not consistently require feasible
mitigation for agricultural land conversion impacts.

(13) The conversion of agricultural land, as defined in Section
56016 of the Government Code, to nonagricultural uses without
appropriate mitigation negatively affects California’s economic
development, natural resources, social and economic equity, and
environmental quality.

(b) It is the intent of the Legislature to adopt minimum statewide
mitigation standards for projects that result in the conversion of
agricultural land to nonagricultural uses including residential,
commercial, civic, industrial, subdivision, infrastructure, or similar
land development projects. The conversion of agricultural land to
nonagricultural uses is an issue of statewide concern. It is therefore
the policy of the state that each lead agency comply with the
requirements of this section when approving projects that convert
agricultural lands to nonagricultural uses.

end insert

begin insert

begin insert SEC. 3. end insert   

end insert

begin insert Section 21095.6 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

begin insert

begin insert 21095.6. end insert   

(a) For purposes of this section, Sections 21095.6,
and Section 21095.7 a “qualified entity” means a land trust, city,
county, nonprofit organization, resource conservation district,
special district, or regional park or open-space district or regional
park or open-space authority that has the conservation of farmland
among its stated purposes.

(b) An applicant for a project, as defined in Section 21065, that
involves the conversion of agricultural land to a permanent or
long-term nonagricultural use, including residential, commercial,
civic, industrial, infrastructure, or other similar land development
projects shall, at a minimum, mitigate the identified environmental
impacts associated with the conversion of those lands through the
permanent protection and conservation of land suitable for
agricultural uses.

(c) An adopted mitigation measure that provides for the
protection of agricultural land shall require at least one of the
following:

(1) A grant in perpetuity to a qualified entity of an agricultural
conservation easement that limits development that is inconsistent
with agricultural uses and related activities to ensure the protection
and stewardship of the agricultural productive capacity of the
mitigation land.

(2) The project applicant to pay, or cause to be paid, a fee to
the lead agency sufficient to acquire a perpetual agricultural
conservation easement that meets all the requirements of this
section. The lead agency may secure an easement through a
payment to a qualified entity or to the Department of Conservation
for the California Farmland Conservancy Program through a
deposit to either the California Farmland Conservancy Program
Fund, created pursuant to Section 10230, or the Farm, Ranch,
and Watershed Account, created pursuant to paragraph (2) of
subdivision (c) of Section 10252.5, for the purposes of acquiring
a perpetual agricultural conservation easement that meets all the
requirements of this section.

(3) The project applicant to enter into a fee agreement with a
qualified entity to acquire an agricultural conservation easement
that meets all the requirements of this section.

(d) Any fees paid by a project applicant pursuant to paragraph
(2) or (3) of subdivision (c) to comply with this section shall include
the purchase price of an agricultural conservation easement, all
transaction costs, and funding for a reasonable endowment for
the purpose of monitoring, administering, legal defense, and all
other services provided by the qualified entity to acquire, manage,
and monitor the easement in perpetuity.

(e) Any lands identified and proposed for conservation and
protection pursuant to subdivision (c) shall, at a minimum, meet
all of the following criteria:

(1) The mitigation acreage of conserved lands is at least equal
to the acreage of the agricultural land converted to nonagricultural
uses.

(2) The soil quality of the conserved agricultural land is
comparable to, or better than, the land that is converted to a
nonagricultural use.

(3) The conserved agricultural land has an adequate water
supply for the purposes of producing irrigated crops, watering of
livestock, or other agricultural purposes for which the conserved
agricultural land is suited.

(4) The conserved agricultural land is located as close to the
project site as the lead agency determines is feasible or is part of
an area designed as a priority agricultural mitigation or protection
area in an adopted general plan, regional advance mitigation
plan, greenprint, sustainable communities strategy prepared
pursuant to the Sustainable Communities and Climate Protection
Act of 2008 (Chapter 728 of the Statutes of 2008), or other local
or statewide plan that promotes agricultural land protection.

(5) The conserved agricultural land has not been previously
encumbered by another conservation easement that restricts the
landowner’s development rights.

(6) The environmental document and other relevant project
approval documents specify that the mitigation land shall be
protected through a legal agreement meeting the requirements of
paragraph (1) of subdivision (c) prior to commencement of any
construction activity. This requirement does not apply to mitigation
measures meeting the requirements of either paragraph (2) or (3)
of subdivision (c).

(f) The appropriate fee for purchase of suitable mitigation lands
under paragraph (2) or (3) of subdivision (c) shall be based on an
approved nexus study or an appraisal by an independent real estate
appraiser that indicates the fee value necessary to purchase
suitable mitigation lands meeting the standards of this subdivision.

(g) Compliance with an existing adopted mitigation ordinance
for the conversion of agricultural land that meets the minimum
standards in paragraphs (2), (3), (4), and (5) of subdivision (e)
shall be deemed to satisfy the requirements of this section. To the
extent that these locally adopted requirements exceed the minimum
standards set forth in this section, this subdivision does not
supersede those requirements.

(h) Compliance with the minimum mitigation standards set forth
in this section does not constitute compliance with the “full
mitigation” provisions set forth in paragraph (1) of subdivision
(a) of Section 21095.7.

end insert

begin insert

begin insert SEC. 4. end insert   

end insert

begin insert Section 21095.7 is added to the end insert begin insert Public Resources Code end insert begin insert ,
to read: end insert

begin insert

begin insert 21095.7. end insert   

(a) (1) A project is deemed to have fully mitigated
all identified significant project-level and cumulative impacts on
agricultural resources and no further mitigation shall be required
for those impacts if one of the following conditions is met:

(A) The mitigation ratio of conserved land to converted land is
two acres for every one acre of converted land.

(B) For a project located within an existing city’s jurisdictional
limits, the mitigation acreage of conserved lands is at least equal
to the acreage of the agricultural land converted to nonagricultural
uses, and meets at least one of the following criteria:

(i) The project is a residential housing project that has a density
of at least two times the statewide average of persons-per-acre
(PPA) development ratios.

(ii) The project is a commercial development with a minimum
of at least two times the statewide floor-to-area ratio (FAR).

(iii) The project is a mixed-use development that meets the PPA
and FAR formulas in subparagraphs (A) and (B).

(2) In order to rely on this section, the lead agency must make
findings supported by substantial evidence in the record
demonstrating that each applicable factor is satisfied.

(b) The Office of Planning and Research shall promulgate
regulations consistent with the findings and declarations set forth
in Section 21095.5 and the requirements of this section with regard
to the identification of additional categories of mitigation that fully
mitigate project-level and cumulative impacts of projects that
convert agricultural land. Those regulations shall be promulgated
by December 31, 2014. The categories of mitigation described by
the Office of Planning and Research in those regulations shall do
all of the following:

(1) Meet the minimum mitigation standards described in
subdivision (c) of Section 21095.6.

(2) Address one or more of the findings in Section 21095.5.

(3) Reasonably mitigate both project-level and cumulative-level
impacts associated with a project’s conversion of agricultural
land. In this regard, the location and quality of agricultural land
to be protected may be relevant.

end insert

begin delete SEC. 3. end delete
begin insert SEC. 5. end insert   

 No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
a local agency or school district has the authority to levy service
charges, fees, or assessments sufficient to pay for the program or
level of service mandated by this act, within the meaning of Section
17556 of the Government Code.