BILL NUMBER: AB 2655 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 8, 2010
INTRODUCED BY Assembly Member Eng
FEBRUARY 19, 2010
An act to add Division 13.6 (commencing with Section 21200)
to the Public Resources Code, relating to natural resources.
LEGISLATIVE COUNSEL'S DIGEST
AB 2655, as amended, Eng. Natural resources: mitigation.
Advance Infrastructure Mitigation Program Act.
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.
This bill would enact the Advance Infrastructure Mitigation
Program Act, which would establish the Advance Infrastructure
Mitigation Program, including defining terms for that purpose. The
bill would authorize the Natural Resources Agency to administer and
implement the program by taking certain actions. Those actions would
include preparing, approving, and implementing regional advance
mitigation plans, the contents of which the bill would specify, for
planned infrastructure projects, as defined, identified by an
infrastructure planning agency, as defined. The bill would specify
that the purpose of a regional advance mitigation plan is to provide
effective mitigation and conservation of natural resources and
natural processes on a landscape, regional, or statewide scale, to
expedite the environmental review of planned infrastructure projects,
and to facilitate the implementation of measures to mitigate the
impacts of those projects by identifying and implementing mitigation
measures in advance of project approval. The bill also would
authorize the agency to acquire, restore, manage, monitor, and
preserve lands, waterways, aquatic resources, or fisheries, or fund
those actions, in accordance with an approved regional advance
mitigation plan or as otherwise specified, and to establish or fund
the establishment of mitigation banks and conservation banks and
purchase credits at those types of banks. The bill would authorize
the agency to take other actions with respect to mitigation credits
or values created or acquired under the program.
The bill would authorize an infrastructure planning agency to
identify planned infrastructure projects for the purpose of including
the projects in a regional advance mitigation plan or for other
advance mitigation under the program, and would authorize the agency
to enter a memorandum of understanding or other agreement with an
infrastructure planning agency for specified purposes of the program.
The bill would establish the Advance Infrastructure Mitigation
Fund in the State Treasury. Upon appropriation by the Legislature,
the bill would require moneys in the fund to be used by the agency to
administer and implement the program.
The bill would specify that the program is intended to improve the
efficiency and efficacy of mitigation only and is not intended to
supplant the requirements of CEQA or any other environmental law.
Existing law declares that resource conservation is of fundamental
importance to the prosperity and welfare of the people of the state.
Existing law states that it is the policy of the state to adopt
conservation practices to save the basic resources of soil, water,
and air from unreasonable and economically preventable waste and
destruction.
This bill would state the intent of the Legislature to enact
legislation that would improve the delivery of natural resource
mitigation by identifying regional or statewide conservation
priorities and by anticipating the impact of planned infrastructure
projects, in order to protect and restore California's most valuable
natural resources.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Division 13.6 (commencing with Section
21200) is added to the Public Resources Code ,
to read:
DIVISION 13.6. Advance Infrastructure Mitigation Program Act
CHAPTER 1. GENERAL
21200. This division shall be known, and may be cited, as the
Advance Infrastructure Mitigation Program Act.
21201. (a) The purpose of this division is to improve the success
and effectiveness of actions implemented to mitigate the natural
resource impacts of future infrastructure projects by establishing
the means to implement those actions well before the infrastructure
projects are constructed. The advance identification and
implementation of mitigation actions also will streamline the
delivery of infrastructure projects by anticipating mitigation
requirements for planned infrastructure projects and avoiding or
reducing delays associated with environmental permitting. By
identifying regional or statewide conservation priorities and by
anticipating the impacts of planned infrastructure projects on a
regional or statewide basis, mitigation actions can be designed to
protect and restore California's most valuable natural resources and
also facilitate environmental compliance for planned infrastructure
projects on a regional scale.
(b) This division is not intended to create a new environmental
permitting or regulatory program or to modify existing environmental
laws or regulations, nor is it intended to address all mitigation
that may be required for planned infrastructure projects. Instead, it
is intended to provide a way in which to anticipate and fulfill the
requirements of existing state and federal environmental laws that
protect fish, wildlife, plant species, and other natural resources
more efficiently and effectively.
21202. The Legislature finds and declares all of the following:
(a) The minimization and mitigation of environmental impacts is
ordinarily handled on a project-by-project basis, usually at the end
of a project's timeline and without guidance regarding regional or
statewide conservation priorities.
(b) The cost of critical transportation, flood control, renewable
energy, and other infrastructure projects often escalates because of
permitting delays that occur when appropriate conservation and
mitigation measures cannot easily be identified and because the cost
of these measures often increases between the time a project is
planned and funded and the time mitigation is implemented.
(c) Addressing biological conservation and mitigation needs early
in a project's timeline, during project design and development, can
reduce costs and allow natural resources conservation to be
integrated with project siting and design.
(d) When the Department of Transportation, the Department of Water
Resources, the State Energy Resources Conservation and Development
Commission, the High-Speed Rail Authority, metropolitan planning
organizations, regional transportation planning authorities,
counties, and other public agencies are able to anticipate the
mitigation needs for planned infrastructure projects, they can meet
those needs in a more timely and cost-effective way, by using
long-range regional advance mitigation planning.
(e) Working with state and federal resource protection agencies,
the Department of Transportation, the Department of Water Resources,
the State Energy Resources Conservation and Development Commission,
the High-Speed Rail Authority, metropolitan planning organizations,
regional transportation planning authorities, counties, and other
public agencies could identify, conserve, and, where appropriate,
restore lands for mitigation of numerous projects early in the
projects' timelines, thereby allowing public funds to stretch further
by acquiring habitat at a lower cost and avoiding environmental
permitting delays.
(f) Regional advance mitigation planning can provide an effective
means of facilitating delivery of state and federal economic stimulus
funding to infrastructure projects while ensuring more effective
natural resource and wildlife conservation.
(g) Regional advance mitigation planning is needed to direct
mitigation funding for transportation, flood control, renewable
energy, and other infrastructure projects to agreed-upon conservation
priorities and to the creation of habitat reserves and recreation
areas that enhance the sustainability of human and natural systems by
protecting or restoring connectivity of natural communities and the
delivery of ecosystem services.
(h) Regional advance mitigation planning can facilitate the
implementation of climate change adaptation strategies both for
ecosystems and California's economy.
(i) Regional advance mitigation planning can enable the state to
protect, restore, and recover its natural capital as it strengthens
and improves its infrastructure.
21203. The Legislature intends to do all of the following by
enacting this division:
(a) Facilitate delivery of infrastructure projects while ensuring
more effective natural resource and wildlife conservation.
(b) Develop effective strategies to improve the state's ability to
meet mounting demands for transportation, flood control, and energy
services, and to maximize conservation and other public benefits.
(c) Achieve conservation objectives of statewide and regional
importance by coordinating local, state, and federally funded natural
resource conservation efforts with mitigation actions required for
impacts from infrastructure projects.
(d) Create administrative, governance, and financial incentives
and mechanisms necessary to ensure that measures required to minimize
or mitigate impacts from infrastructure projects will serve to
achieve regional or statewide natural resource conservation
objectives.
CHAPTER 2. DEFINITIONS
21204. For purposes of this division, the following terms have
the following meanings:
(a) "Acquire" and "acquisition" mean, with respect to land or a
waterway, acquisition of fee title or purchase of a conservation
easement, that protects conservation and mitigation values on the
land or waterway in perpetuity.
(b) "Agency" means the Natural Resources Agency.
(c) "Infrastructure planning agency" means the Department of
Transportation, the Department of Water Resources, a metropolitan
planning organization, a regional transportation planning agency, the
State Energy Resources Conservation and Development Commission, the
High-Speed Rail Authority, a county, or other public agency that
implements infrastructure projects.
(d) "Infrastructure project" means the construction, repair, or
modification of a transportation, flood control, energy, or water
facility, or the construction of infrastructure that addresses
unavoidable impacts of climate change.
(e) "Planned infrastructure project" means a project that the
Department of Transportation, the Department of Water Resources, or
other public agency has concluded is reasonably likely to be
constructed within 20 years and that has been identified to the
agency for purposes of this division. A planned infrastructure
project may include, but is not limited to, projects that have been
proposed for approval or approved.
(f) "Program" means the Advance Infrastructure Mitigation Program
implemented pursuant to this division.
(g) "Regional advance mitigation plan" means a regional or
statewide plan developed in accordance with this division that
estimates the potential future compensatory mitigation requirements
for one or more planned infrastructure projects and identifies
mitigation projects, sites, or credits that would fulfill some or all
of those requirements.
(h) "Regulatory agency" means a state or federal natural resource
protection agency with regulatory authority over planned
infrastructure projects. A regulatory agency includes, but is not
limited to, the Department of Fish and Game, California regional
water quality control boards, the United States Fish and Wildlife
Service, the National Marine Fisheries Service, the United States
Environmental Protection Agency, and the United States Army Corps of
Engineers.
CHAPTER 3. ADVANCE INFRASTRUCTURE MITIGATION PROGRAM
21205. This division establishes the Advance Infrastructure
Mitigation Program to fulfill the purposes of this division. The
agency may do any of the following to administer and implement the
program:
(a) Prepare, approve, and implement regional advance mitigation
plans for one or more planned infrastructure projects identified
pursuant to Section 21207. The purpose of a regional advance
mitigation plan is to provide effective mitigation and conservation
of natural resources and natural processes on a landscape, regional,
or statewide scale, to expedite the environmental review of planned
infrastructure projects, and to facilitate the implementation of
measures to mitigate the impacts of those projects by identifying and
implementing mitigation measures in advance of project approval.
(b) Acquire, restore, manage, monitor, and preserve lands,
waterways, aquatic resources, or fisheries, or fund the acquisition,
restoration, management, monitoring, and preservation of lands,
waterways, aquatic resources, or fisheries, in accordance with a
regional advance mitigation plan approved by the agency pursuant to
this division.
(c) Acquire, restore, manage, monitor, and preserve lands,
waterways, aquatic resources, or fisheries, or fund the acquisition,
restoration, management, monitoring, and preservation of lands,
waterways, aquatic resources, or fisheries, outside of an approved
regional advance mitigation plan if the agency determines that those
actions would conserve or create biological values that are
appropriate to mitigate the estimated impacts of one or more planned
infrastructure projects identified pursuant to Section 21207.
(d) Establish mitigation banks or conservation banks, or fund the
establishment of mitigation banks or conservation banks, in
accordance with applicable state and federal standards. The agency
also may purchase credits at mitigation banks and conservation banks
if the agency determines that the credits provide biologically
appropriate mitigation for one or more planned infrastructure
projects identified pursuant to Section 21207.
(e) Establish the type and quantity of mitigation credits or
values created under the program by obtaining the approval of those
credits or values from relevant regulatory agencies. This division is
not intended to supplant or abrogate the authority of a regulatory
agency to determine mitigation requirements under state or federal
environmental laws or to determine the type or quantity of mitigation
credits or values that may be used to fulfill those requirements.
(f) Use, or allow infrastructure planning agencies to use,
mitigation credits or values created or acquired under the program to
fulfill the mitigation requirements of planned infrastructure
projects if the infrastructure planning agency reimburses the program
for all costs of creating the mitigation credits or values, as
determined by the agency.
(g) Assist regional and local agencies to develop regional advance
mitigation plans for one or more planned infrastructure projects
identified pursuant to Section 21207.
21206. A regional advance mitigation plan shall do all of the
following:
(a) Use geographic information system analysis, field surveys,
principles of conservation planning, and other appropriate
methodologies to estimate the nature and extent of mitigation
requirements of identified planned infrastructure projects on a
regional or statewide basis.
(b) Propose measures to avoid or minimize the adverse
environmental impacts of planned infrastructure projects, including,
where appropriate, the identification of project alignments and
design features that would avoid or minimize those impacts.
(c) Anticipate and provide for compensatory mitigation for planned
infrastructure projects' impacts on natural resources and natural
processes by identifying needed mitigation and, to the extent
practicable, identifying suitable mitigation lands or waterways.
(d) Identify and provide for the preservation of wildlife movement
corridors and habitat connectivity to avoid ecological fragmentation
and to enable ecosystem adaptation to climate change.
(e) Consider the full range of impacts on natural resources,
including, but not limited to, impacts on water quality and riparian
habitat, rare plant species, sensitive species, fisheries, and
declining natural communities including oak woodlands, vernal pools,
native grasslands, and serpentine habitat.
(f) Take into consideration, where applicable, any local, state,
and regional conservation priorities as may be described in existing
conservation plans, including, but not limited to, the state wildlife
action plan, habitat conservation plans, natural community
conservation plans, climate change adaptation plans, and species
recovery plans.
(g) Identify and quantify the net reduction in greenhouse gas
emissions and changes to sequestration potential achieved through
implementation of the plan.
(h) Provide for endowments to manage and monitor acquired or
protected lands, waterways, or fisheries, as necessary.
(i) Where available and biologically appropriate, provide for the
purchase of mitigation credits at mitigation banks or conservation
banks or for the payment of mitigation fees within established
mitigation programs.
(j) Analyze the cost-effectiveness of available mitigation
alternatives both in terms of environmental benefits and improved
project delivery and certainty.
(k) Include measurable performance objectives and a monitoring and
evaluation program.
21207. (a) An infrastructure planning agency may identify planned
infrastructure projects for the purpose of including those projects
in a regional advance mitigation plan or for other advance mitigation
under the program. The infrastructure planning agency shall provide
an analysis and estimate of the projects' direct, indirect, and
cumulative impacts. The analysis and estimate shall include all
available relevant information regarding those impacts and the
analysis shall be at a level of detail commensurate with the
available relevant information. Detailed analysis shall not be
required where relevant detailed information about the projects'
impacts is not available.
(b) The agency may enter a memorandum of understanding or other
agreement with an infrastructure planning agency to do all of the
following:
(1) Specify terms consistent with this division under which the
program will provide advance mitigation for the identified planned
infrastructure projects.
(2) Establish guidelines for communication and sharing of relevant
information necessary to optimize coordination and collaboration
between the agency and the infrastructure planning agency.
(3) Establish guidelines for strategically locating mitigation and
conservation sites to maximize the biological benefit and
conservation value to target species, habitats, and aquatic
resources.
21208. The Advance Infrastructure Mitigation Fund is established
in the State Treasury. Notwithstanding any other law, the moneys in
the fund shall be available for appropriation by the Legislature only
to the agency for the administration and implementation of the
program, and shall not be subject to appropriation, reversion, or
transfer for any other purpose. All moneys provided by infrastructure
planning agencies to reimburse program expenditures pursuant to
subdivision (f) of Section 21205 or in advance of anticipated
mitigation actions shall be deposited in the fund.
21209. The program is intended to improve the efficiency and
efficacy of mitigation only and is not intended to supplant the
requirements of the California Environmental Quality Act (Division 13
(commencing with Section 21000)) or any other environmental law. The
identification of planned infrastructure projects and the
identification of mitigation projects or measures for planned
infrastructure projects under this division does not imply or require
approval of those projects for purposes of the California
Environmental Quality Act (Division 13 (commencing with Section
21000)) or any other environmental law.
SECTION 1. It is the intent of the Legislature
to enact legislation that would improve the delivery of natural
resource mitigation by identifying regional or statewide conservation
priorities and by anticipating the impact of planned infrastructure
projects, in order to protect and restore California's most valuable
natural resources.