BILL ANALYSIS                                                                                                                                                                                                    



                                                                    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