BILL ANALYSIS
AB 2655
Page 1
Date of Hearing: April 19, 2010
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2655 (Eng) - As Amended: April 8, 2010
SUBJECT : Natural resources: Advance Infrastructure Mitigation
Program Act.
SUMMARY : Authorizes the Natural Resources Agency (NRA) to
develop a program to mitigate the impacts of infrastructure
projects proposed by a public agency on a regional or statewide
scale in advance of project approval.
EXISTING LAW :
1)Pursuant to the California Environmental Quality Act (CEQA),
requires a public agency to prepare an environmental impact
report (EIR) for a project that may have a significant impact
on the environment. An EIR must identify mitigation measures
proposed to minimize significant impacts on the environment
and include a monitoring program to ensure compliance with
these measures.
2)Pursuant to the Sacramento-San Joaquin Valley Wetlands
Mitigation Bank Act of 1993, requires the Department of Fish
and Game (DFG) to establish standards and criteria to qualify
mitigation banks within the Sacramento-San Joaquin Valley and
evaluate of wetland habitat acreage and values created at the
bank sites. The criteria must, at a minimum, require the
newly created wetlands to provide the hydrologic, vegetative,
and wildlife characteristics, including the food web
components, of a naturally occurring wetland system that is
equal to the site being mitigated.
THIS BILL :
1)Defines "infrastructure planning agency" to mean the
Department of Transportation (Caltrans), the Department of
Water Resources (DWR), California Energy Commission,
High-Speed Rail Authority, a county, a metropolitan planning
organization, a regional transportation planning agency, or
other public agency that implements infrastructure projects.
2)Defines "infrastructure project" to mean the construction,
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repair, or modification of a transportation, flood control,
energy, or water facility, or the construction of
infrastructure that addresses unavoidable impacts of climate
change.
3)Defines "planned infrastructure project" to mean a project
that Caltrans, DWR or other public agency has concluded is
reasonably likely to be constructed within 20 years, and may
include projects that have been proposed for approval or
approved.
4)Defines "regional advance mitigation plan" (RAMP) to mean a
regional or statewide plan 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. A RAMP must propose measures to avoid or
minimize impacts, anticipate and mitigate these impacts,
estimate greenhouse gas emissions reductions, provide an
endowment to manage or monitor lands acquired or protected,
provide for the purchase of credits at mitigation banks or
payment of mitigation fees, analyze the cost-effectiveness of
mitigation alternatives, and measure and evaluate performance.
5)Establishes the Advance Infrastructure Mitigation Program
(Program) and authorizes NRA to:
a) Prepare, approve, and implement RAMPs for one or more
planned infrastructure projects.
b) Acquire, restore, manage, monitor, and preserve lands,
waterways, aquatic resources, or fisheries, or fund the
foregoing, in accordance with a RAMP or outside a RAMP
under certain conditions.
c) Establish or fund the creation of mitigation banks or
conservation banks; the agency also may purchase credits at
these banks.
d) 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.
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e) Assist regional and local agencies to develop RAMPs.
6)Requires a RAMP to do all of the following:
a) Use specific methodologies to estimate the nature and
extent of mitigation requirements.
b) Propose measures to avoid or minimize impacts of
programs.
c) Anticipate and provide compensatory mitigation by
identifying impacts and needed mitigation or suitable
mitigation lands or waterways.
d) Take into consideration any regional conservation
priorities as described in various conservation plans.
e) Quantify net reduction in greenhouse gas emissions and
changes in sequestration potential achieved through a RAMP.
f) Provide for endowments, purchase of mitigation credits,
or payment of mitigation fees.
g) Analyze cost-effectiveness of mitigation alternatives
and include performance objectives and a monitoring and
evaluation plan.
7)Authorizes an infrastructure planning agency to identify
projects for a RAMP; the agency must analyze project impacts
at a level of detail commensurate with available information.
8)Creates an Advance Infrastructure Mitigation Fund in the State
Treasury.
9)Provides 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. The identification of planned
infrastructure projects and the identification of mitigation
projects does not imply or require approval of those projects
under CEQA.
COMMENTS : According to the author's office:
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Inefficiencies in the environmental review of proposed
infrastructure projects often result in a worst-case
scenario for both the project and the environment: stalled
implementation of job-creating construction projects, and
mitigation projects of sub-optimal ecosystem value. Unless
improved significantly, environmental mitigation planning
associated with the anticipated expenditure of over $42
billion of recent infrastructure bonds will be woefully
inadequate to meet the needs of our impacted ecosystems.
Status-quo project-by-project mitigation, at this scale,
threatens to result in piece-meal, un-connected and
ecologically inefficient habitat protections.
Additionally, status-quo mitigation planning will continue
to result in unnecessarily stalled environmental review
processes and project implementation.
The author's office did not submit evidence to support these
claims but it did cite select instances where it believes the
bill would have either expedited certain transportation
projects or facilitated more coordinated, larger-scale
mitigation opportunities.
1)Working group investigating feasibility of RAMP : The theory
behind advanced mitigation goes like this: instead of
mitigating project impacts on a case-by-case, isolated basis
after project implementation, why not estimate and combine
impacts from multiple projects in a similar region or
watershed prior to implementation, "aggregate" those impacts,
then mitigate them by restoring or acquiring larger or more
cohesive habitat consistent with state or federal conservation
priorities. According to the author, the benefits include:
conservation of larger areas of higher quality habitat;
leveraging other conservation efforts, streamlining project
approval and reduce delays; lower mitigation costs; decreased
temporal impacts and thus lower mitigation impact ratios (more
mitigation acres than those impacted are sometimes required to
account for lower quality habitat or the temporal loss of
habitat between the time of impact and mitigation); and
improved collaboration.
Since the spring of 2008, a working group of state and federal
agencies, including Caltrans, DWR, DFG, Parks and Recreation,
U.S. EPA, Army Corps of Engineers, U.S. Fish and Wildlife
Service, and the Nature Conservancy, the sponsor of this bill,
have been exploring the potential for implementing regional
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advance mitigation in California. Though not endorsed by
these agencies, this bill seeks to further advance the concept
of RAMP by giving NRA express authorization to prepare and
implement RAMPs. An on-going pilot program in the Central
Valley has been assessing whether 10-12 DWR and Caltrans
projects share similar impacts that can be mitigated in
advance on a regional basis.
North Carolina, Georgia and Florida have all implemented
variations on this concept but North Carolina's experience is
hailed as the most successful; reportedly 90% of the North
Carolina Department of Transportation's wetlands mitigation
needs have been fulfilled through its RAMP and no projects
have been delayed due to mitigation issues since the start of
the program.
2)State already has some advance mitigation tools in its
toolbox : As part of the Program, this bill authorizes NRA to
establish, fund the creation of, or purchase credits from a
mitigation or conservation (e.g., for protected species)
bank-one of several advance mitigation approaches contemplated
by this bill. Mitigation or conservation banking, in
existence for well over a decade, is a market mechanism where
a permittee can purchase credits, the value of which is based
on habitat function or acreage, in an existing for-profit or
non-profit conservation project. This approach transfers the
responsibility and legally liability for the success of a
project to the bank's sponsor or owner, an attractive and
often necessary feature for developers.
Mitigation banking is generally preferred by regulators and
developers since it is the most reliable form of compensatory
mitigation, is easier to monitor and manage, transfers
liability to the banker, and provides more regulatory
certainty. DFG has approved roughly 38 public and private
mitigation and conservation banks in the state. Credits can
be purchased for impacts to wetlands, vernal pools, burrowing
owls, Giant Garter Snakes, Swainson's Hawk, Red-legged Frogs,
and San Joaquin Kit Fox, for example. Caltrans is currently a
wetland bank developer (67 acre wetland bank in Sacramento
County) and purchaser of credits from private banks.
3)Desert Renewable Energy Conservation Plan (DRECP) : A recent
example of advanced mitigation (though it has yet to be
implemented) is the DRECP. The Governor's Executive Order
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S-14-08 called for the devleopment of the DRECP pursuant to
the Natural Communites Conservation Planning Act, the goal of
which is to conserve natural communities at the region or
ecosystem scale while accommodating compatible land uses. The
DRECP, covering the Mojave and Colorado Desert regions, will
identify areas suitable for both solar energy projects (19 in
total) and species conservation and recovery while granting
"take" authority for impacts to protected species that may
occur over the life of a project. This on-going collaborative
process between developers and state and federal agencies is
an unprecedented effort to faciliate the development of these
projects by the end of this year in order to meet federal
stimulus funding deadlines. The passage of SB8X 34 (Padilla)
will further expedite this process by permitting a developer
to voluntarily pay in-lieu mitigation fees in advance of
project impacts to fund mitigation actions to be carried out
by DFG.
4)Challenges of advanced mitigation:
a) Anticipating or accurately assessing the impacts of a
project (yet to be approved) with sufficient confidence in
order to mitigate these impacts in advance is challenging.
It is even more challenging without an adequate project
description, which can change throughout project design and
review process, or without the benefit of biological field
surveys, for example. Of course, a RAMP won't be
appropriate for all projects or agencies. It's possible
that the impacts of levee or highway widening can be
predicted with more than 50% confidence. However, the
strictures of transportation financing will have to be
changed to accommodate a RAMP.
b) This bill makes clear that RAMP is not intended to
supplant CEQA or other laws nor does it imply or require
approval of a project under CEQA. However, an
infrastructure agency will likely need sufficient certainty
that a project will obtain CEQA or other regulatory
compliance before investing scarce public resources into a
mitigation project. Would CEQA, endangered species, or
other laws provide sufficient flexibility to accommodate
advance mitigation? What if advance mitigation does not
adequately compensate for losses that turn out to be
greater or more significant?
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c) The bill defines an infrastructure project as one that
is reasonably likely to be constructed within 20 years.
Projects with such a long lead time may ultimately not be
necessary or materialize; moreover, how can an agency be
certain that impacts identified now will remain impacts 20
years from now, especially given species migration,
sea-level rise or habitat degradation due to climate
change; thus, the state may be investing scarce mitigation
or bond resources without the certainty the mitigation will
be necessary. The author has indicated that a 2-5 year
lead time is probably more realistic.
d) This bill only authorizes NRA to create a mitigation
bank, something the state is already doing, but should it
expand its current role in creating mitigation banks and
other mitigation projects, given the liabilities it would
assume for the success or failure of a bank? Could the
state effectively compete with private banks?
5)Suggested amendments :
a) The bill does not require NRA to subject a RAMP to
public review or comment. Given its implications and
potential import, the committee and author may wish to
consider whether NRA should publish a RAMP on its on its
Internet Web site for public review and comment 45 days
prior to the adoption by the NRA and relevant
infrastructure planning agency.
b) The bill requires an infrastructure agency to pay all
costs of creating a mitigation credit or value if used to
fulfill a mitigation requirement. However, it is unclear
as to what these costs actually entail. SB8X 34 included
language that would be appropriate in this regard. The
committee and author may wish to consider whether the
following should be added to page 8, line 3 of the bill:
"Those costs shall be calculated using total cost
accounting, and shall include, as applicable, land
acquisition or conservation easement costs, monitoring
costs, restoration costs, transaction costs, the amount of
a nonwasting endowment account for land management or
easement stewardship costs by the management entity,
administrative costs and contingency costs."
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c) On page 9, lines 1-3 should be amended to read:
Identify and quantify the net reduction change in
greenhouse gas emissions and changes to sequestration
potential achieved through implementation of the plan.
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REGISTERED SUPPORT / OPPOSITION :
Support
Audubon California
Big Sur Land Trust
James H. Thorne, PhD, Dept Environmental Science and Policy, UCD
The Nature Conservancy
Tulare Basin Wildlife Partners
Opposition
None on file
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092