California Legislature—2015–16 Regular Session

Assembly Bill No. 1833

Introduced by Assembly Member Linder

February 9, 2016

An act to amend Section 820.1 of, and to add Article 2.5 (commencing with Section 800) to Chapter 4 of Division 1 of, the Streets and Highways Code, relating to transportation.

LEGISLATIVE COUNSEL’S DIGEST

AB 1833, as introduced, Linder. Transportation projects: environmental mitigation.

(1) The California Environmental Quality Act (CEQA) requires a lead agency to prepare, or cause to be prepared, and certify the completion of an environmental impact report on a project, as defined, that it proposes to carry out or approve that may have a significant effect on the environment, as defined, or to adopt a negative declaration if it finds that the project will not have that effect, subject to certain exceptions.

The bill would create the Advanced Mitigation Program in the Department of Transportation to implement environmental mitigation measures in advance of future transportation projects.

(2) Existing federal law requires the United States Secretary of Transportation to carry out a surface transportation project delivery program, under which the participating states assume certain responsibilities for environmental review and clearance of transportation projects that would otherwise be the responsibility of the federal government. Existing law, until January 1, 2017, provides that the State of California consents to the jurisdiction of the federal courts with regard to the compliance, discharge, or enforcement of the responsibilities the Department of Transportation assumed as a participant in this program.

This bill would delete the January 1, 2017, repeal date and thereby extend these provisions indefinitely.

(3) Existing federal law requires the United States Secretary of Transportation to select, from states already approved to assume the above-referenced federal responsibilities for environmental review and clearance of transportation projects, a maximum of 5 states to participate in a program under which states may conduct environmental reviews and make approvals for projects under state environmental laws and regulations rather than under the National Environmental Policy Act of 1969, subject to certain conditions, including the consent of participating states to the jurisdiction of the federal courts in these matters.

This bill would extend the consent of the State of California to the jurisdiction of the federal courts with regard to the compliance, discharge, or enforcement of the responsibilities the Department of Transportation may assume as a participant in this program.

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

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

SECTION 1.  

Article 2.5 (commencing with Section 800) is
added to Chapter 4 of Division 1 of the Streets and Highways
Code, to read:

 

Article 2.5.  Advanced Mitigation Program

 

800.  

(a) The Advanced Mitigation Program is hereby created
in the department to accelerate project delivery and improve
environmental outcomes of environmental mitigation for
transportation infrastructure projects.

(b) For the purposes of this article, “advanced mitigation” means
mitigation implemented before, and in anticipation of,
environmental effects of future transportation projects. This
program may utilize mitigation instruments including, but not
limited to, mitigation banks, in lieu of fee programs, and
conservation easements as defined in Section 815.1 of the Civil
Code.

(c) The department shall track all implemented advanced
mitigation projects to use as credits for environmental mitigation
for state-sponsored transportation projects.

(d) The department may use advanced mitigation credits to
fulfill mitigation requirements of any environmental law for a
transportation project eligible for the State Transportation
Improvement Program or the State Highway Operation and
Protection Program.

(e) No later than February 1, 2017, the department shall establish
an interagency transportation advanced mitigation steering
committee consisting of the department and appropriate state and
federal agencies to support the Advanced Mitigation Program so
that advanced mitigation can be used as required mitigation for
future transportation projects and provide improved environmental
outcomes. The committee shall advise the department of
opportunities to carry out advanced mitigation projects, provide
the best available science, and actively participate in mitigation
instrument reviews and approvals. The committee shall seek to
develop streamlining opportunities, including those related to
landscape scale mitigation planning, and alignment of federal and
state regulations and procedures related to mitigation requirements
and implementation. The committee shall also provide input on
crediting, using, and tracking of advanced mitigation investments.

SEC. 2.  

Section 820.1 of the Streets and Highways Code is
amended to read:

820.1.  

(a) The State of California consents to the jurisdiction
of the federal courts with regard to the compliance, discharge, or
enforcement of the responsibilities assumed by the department
pursuant to Section 326 of, begin delete and end delete subsection (a) of Section 327 of,
begin insert and Section 330 of, end insert Title 23 of the United States Code.

(b) In any action brought pursuant to the federal laws described
in subdivision (a), no immunity from suit may be asserted by the
department pursuant to the Eleventh Amendment to the United
States Constitution, and any immunity is hereby waived.

(c) The department shall not delegate any of its responsibilities
assumed pursuant to the federal laws described in subdivision (a)
to any political subdivision of the state or its instrumentalities.

(d) The department shall, no later than January 1, 2016, submit
a report to the Legislature that includes the begin delete following: end delete begin insert following
with respect to responsibilities assumed by the department pursuant
to Section 326 of, and subsection (a) of Section 327 of, Title 23 of
the United States Code: end insert

(1) A comparative analysis of the environmental review process
under the National Environmental Policy Act (Chapter 55
(commencing with Section 4321) of Title 42 of the United States
Code) for the 30 projects, excluding those projects categorically
excluded from environmental review, undertaken immediately
preceding the enactment of this section that involved the Federal
Highway Administration and the environmental review process
for all projects, excluding those projects categorically excluded
from environmental review, undertaken following the enactment
of this section that did not involve the Federal Highway
Administration. This analysis shall include department- and local
agency-sponsored projects, and shall address the following:

(A) For each project included in the analysis, the environmental
review process under the National Environmental Policy Act,
including which state and federal agencies reviewed the
environmental documents and the amount of time the documents
were reviewed by each agency, shall be described.

(B) The points in the environmental review process under the
National Environmental Policy Act when project delays occurred
and the nature of the delays.

(C) The time saved in the environmental review process for
projects undertaken following the enactment of this section in
comparison to the review process for projects undertaken prior to
the enactment of this section, and the points in the review process
when time was saved.

(D) The circumstances when the Federal Highway
Administration hindered and facilitated project delivery.

(2) All financial costs incurred by the department to assume the
responsibilities pursuant to Section 326 of, and subsection (a) of
Section 327 of, Title 23 of the United States Code, including, but
not limited to, the following:

(A) Personnel to conduct and review environmental documents
and to manage litigation.

(B) Administrative costs.

(C) Litigation.

(3) An explanation of all litigation initiated against the
department for the responsibilities assumed pursuant to Section
326 of, subsection (a) of Section 327 of, Title 23 of the United
States Code.

(4) A comparison of all costs and benefits of assuming these
responsibilities.

(5) An assessment of overall project delivery time from the time
environmental studies begin to the time the project is ready to
advertise for construction, including the time required for each
project phase and distinguishing between different types of
environmental documents and between projects on the state
highway system and local assistance projects. The department may
also include other variables that it determines may be useful in the
assessment.

begin delete

(e) (1) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2017, deletes or extends that date.

end delete begin delete

(2) The state shall remain liable for any decisions made, or
responsibilities assumed and exercised, prior to the repeal of this
section under this subdivision, pursuant to applicable federal
statutes of limitation for filing citizens’ suits in federal court.

end delete begin delete

(f)

end delete

begin insert (e) end insert  Nothing in this section affects the obligation of the
department to comply with state and federal law.