BILL ANALYSIS Ó
AB 1833
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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:
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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
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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:
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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
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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
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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.
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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.
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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
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Opposition
California League of Conservation Voters
Sierra Club California
Analysis Prepared by:Lawrence Lingbloom / NAT. RES. / (916)
319-2092