BILL ANALYSIS Ó AB 1833 Page 1 Date of Hearing: April 18, 2016 ASSEMBLY COMMITTEE ON NATURAL RESOURCES Das Williams, Chair AB 1833 (Linder) - As Amended March 16, 2016 SUBJECT: Transportation projects: environmental mitigation SUMMARY: Creates the Advanced Mitigation Program (AMP) in the Department of Transportation (Caltrans) to implement environmental mitigation measures in advance of future transportation projects. EXISTING LAW: 1)The California Environmental Quality Act (CEQA) requires lead agencies with the principal responsibility for carrying out or approving a proposed project to prepare a negative declaration, mitigated negative declaration, or environmental impact report (EIR) for this action, unless the project is exempt from CEQA (CEQA includes various statutory exemptions, as well as categorical exemptions in the CEQA Guidelines). 2)Pursuant to CEQA, the National Environmental Policy Act, and numerous other state and federal laws, requires mitigation for unavoidable impacts to certain resources as a result of project construction. THIS BILL: AB 1833 Page 2 1)Creates AMP in Caltrans to accelerate project delivery and improve environmental outcomes of environmental mitigation for transportation infrastructure projects. 2)Defines "advanced mitigation" as mitigation implemented before, and in anticipation of, environmental effects of future transportation projects. Authorizes mitigation instruments including, but not limited to, mitigation banks, in lieu of fee programs, and conservation easements. 3)Requires Caltrans to track all implemented advanced mitigation projects to use as credits for environmental mitigation for state-sponsored transportation projects. 4)Authorizes Caltrans to 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. 5)Requires Caltrans, no later than February 1, 2017, to AB 1833 Page 3 establish an interagency transportation advanced mitigation steering committee consisting of appropriate state and federal agencies to support AMP so that advanced mitigation can be used as required mitigation for future transportation projects and provide improved environmental outcomes. Requires the committee to: a) Advise Caltrans of opportunities to carry out advanced mitigation projects, provide the best available science, and actively participate in mitigation instrument reviews and approvals. b) 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. c) Provide input on crediting, using, and tracking of advanced mitigation investments. FISCAL EFFECT: Unknown COMMENTS: AB 1833 Page 4 1)Background. CEQA provides a process for evaluating the environmental effects of applicable projects undertaken or approved by public agencies. If a project is not exempt from CEQA, an initial study is prepared to determine whether the project may have a significant effect on the environment. If the initial study shows that there would not be a significant effect on the environment, the lead agency must prepare a negative declaration. If the initial study shows that the project may have a significant effect on the environment, the lead agency must prepare an EIR. Generally, 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. 2)Author's statement: California infrastructure is reaching a critical mass. Last AB 1833 Page 5 year, Governor Brown identified $66 billion in deferred maintenance. In 2011 the CTC identified a $200 billion shortfall in funding for projects. These numbers are, as the Governor said, "staggering." On top of all this, Proposition 1B funds have been exhausted, leaving a massive funding gap. Understandably the Legislature has been debating funding proposals to try and address these deficits, with little progress to show. While these talks continue the legislature must press forward on other solutions. In recent years, California has embraced new procurement methods such as Design-Build and CM/GC reducing costs and delivery times. Yet the largest contributor to time delays has barely been touched, environmental review and mitigation. While regions around the state have been at the forefront of mitigating environmental impacts the state as a whole has been slow to adopt these policies. Orange and Riverside County have both been early in adoption of advanced mitigation. Both were able to realize significant savings by estimating the impacts from one or many transportation projects before or during the planning phase, instead of waiting till relatively late in the process. Other states and localities have begun implementing advanced mitigations for its potential benefits of reducing project delays and costs, and improving mitigation quality to align with AB 1833 Page 6 statewide and regional conservation priorities. States like Michigan have estimated cost savings of $70,000 per acre and Washington has estimated between 30% - 80% in cost savings over traditional wetland mitigation. According to a study conducted by UC Davis, if national figures for advanced mitigation are applied, California should expect a reduction of the length of the project by 10% per project and significant cost savings. Given cost savings from projects conducted by other states and localities, California should also expect significant cost savings from advanced mitigation. 3)This bill doesn't address the main obstacle to advanced mitigation - funding. For large infrastructure development entities, like Caltrans, whose activities can result in a broad range of impacts from small, temporary disturbances associated with maintenance activities to large multi-acre impacts associated with building bridges or highway alignments, developing multiple small mitigation sites can be costly, time consuming, and result in fragmented habitats. To address these issues, both state and regional entities have utilized advanced mitigation as a way to provide high quality replacement habitat, achieve economies of scale in its development, and reduce project delivered delays. For the most part, Caltrans has greater experience developing smaller-scale advanced mitigation sites in comparison to regionally-led efforts where large-scale mitigation, some exceeding 500 acres, is more the norm. AB 1833 Page 7 One of the reasons Caltrans more frequently performs smaller-scale advanced mitigation is that it must rely, almost exclusively, on funds from individual project budgets. Since project funds are not available far enough in advance, it is not possible for them to complete the costly and time consuming steps needed to complete advanced mitigation before the project goes to construction and mitigation credits are needed. Regionally-based advanced mitigation efforts, on the other hand, are distinguished by their large scale, both in terms of land area and financial commitment. Advanced mitigation efforts undertaken by regional entities in California are typically funded by local developer fees, bonds, grants and, sometimes, sales taxes. They also result in the protection of large land areas, sometimes up to 500 acres. Additionally, it can take regional entities decades to complete the mitigation site and make it ready for use as project mitigation. Also, costs to complete advanced mitigation can range from tens of millions to billions of dollars. This bill is identical to the advanced mitigation proposal in the Governor's proposed transportation funding package, except that this bill left out the commitment of $30 million annually to support the program. AB 1833 Page 8 4)What does the bill really do? It's not clear that this bill is necessary to authorize advanced mitigation, which can be undertaken under CEQA and other environmental laws that require mitigation using the standards and procedures in those laws. However, the bill's value may lie in requiring Caltrans to coordinate with other agencies in planning for the use of advanced mitigation for future transportation projects. To clarify that this bill does not change mitigation standards under CEQA and other laws, the author and the committee may wish to consider adding the following provision: (f) Nothing in this article replaces or alters mitigation requirements of any other law. Any mitigation undertaken pursuant to this article shall meet or exceed all applicable requirements of the California Environmental Quality Act, the California Endangered Species Act, or other applicable law. 5)Double referral. This bill passed the Assembly Transportation Committee by a vote of 15-0 on April 4, 2016. REGISTERED SUPPORT / OPPOSITION: Support Associated General Contractors California Transportation Commission AB 1833 Page 9 Opposition California League of Conservation Voters Sierra Club California Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916) 319-2092