BILL NUMBER: AB 1833 INTRODUCED
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:
(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
(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
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,
and subsection (a) of
Section 327 of, and Section 330 of, Title 23 of the United
(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 following:
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:
(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
(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
(B) Administrative costs.
(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
(4) A comparison of all costs and benefits of assuming these
(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.
(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
(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.
(e) Nothing in this section affects the obligation of
the department to comply with state and federal law.