BILL ANALYSIS �
AB 752
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Date of Hearing: March 21, 2011
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 752 (Brownley) - As Introduced: February 17, 2011
SUBJECT : Tidelands and submerged lands: sea level action plan
SUMMARY : Requires a trustee of granted public trust lands to
prepare a sea level rise action plan to protect important
economic infrastructure and environmental habitat from the
effects of projected sea level rise.
EXISTING LAW:
1)Protects, pursuant to the common law doctrine of the Public
Trust (Public Trust Doctrine), the public's right to use
California's waterways for commerce, navigation, fishing,
boating, natural habitat protection, and other water oriented
activities. The Public Trust Doctrine provides that filled
and unfilled tide and submerged lands and the beds of lakes,
streams, and other navigable waterways (public trust lands)
are to be held in trust by the state for the benefit of the
people of California.
2)Establishes that the State Lands Commission (SLC) is the
steward and manager of the state's public trust lands. SLC
has direct administrative control over the state's public
trust lands and oversight authority over public trust lands
granted by the Legislature to local governments.
3)Grants, in trust, state public trust lands to over 80 local
public agencies (local trustees) to be managed for the benefit
of all the people of the state and pursuant to the Public
Trust Doctrine and terms of the applicable granting statutes.
4)Provides, under private trust law, that the trustee has a duty
to take reasonable steps under the circumstances to take and
keep control of and to preserve the trust property.
5)Authorizes, through Executive Order S-13-08, several reviews,
studies, and reports, including the Sea Level Rise Assessment
Report, the Climate Adaptation Strategy, and a report to
assess vulnerability of transportation systems to sea level
rise.
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THIS BILL:
1)Requires a local trustee of granted public trust lands to
prepare a sea level action plan (Plan) by July 1, 2013
2)Requires the trustee to prepare the Plan in consideration of
the 2009 California Climate Adaptation Strategy prepared by
the Natural Resources Agency, the Report on Sea Level Rise
Preparedness prepared by the State Lands Commission, and the
Sea Level Rise Assessment Report prepared by the National
Academy of Science if the report becomes available before the
Plan is due.
3)Requires the Plan to include all of the following:
a) An assessment of the impact of sea level rise on granted
public trust lands.
b) Maps showing the areas that may be affected by sea level
rise in the years 2050 and 2100.
c) An estimate of the financial cost of the impact of sea
level rise on granted public trust lands.
d) Strategies to prevent or mitigate damage to existing
development and infrastructure, and to protect and enhance
undeveloped, vulnerable shoreline areas containing critical
habitat and opportunities for habitat creation.
e) Design standards that would avoid or mitigate impacts to
new development and infrastructure.
f) Implementation measures and timetables.
4)Allows SLC to exempt a local trustee of granted public trust
lands from preparing a Plan, or allow a trustee to submit a
modified Plan, if the trustee's lands are not subject to sea
level rise or if the cost to provide the Plan substantially
outweighs the benefit the Plan would have in preventing the
harms associated with sea level rise.
5)Requires SLC to exempt a local trustee of granted public trust
lands from preparing a Plan, or grant a deadline extension, if
the revenues derived from its granted public trust lands or
funding made available from third party sources, such as the
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Ocean Protection Council, are not sufficient to pay for the
cost of developing the plan.
FISCAL EFFECT : Unknown
COMMENTS :
For over 100 years, the Legislature has granted public trust
lands to local trustees so they can be managed locally for the
benefit of the people of California. There are over 80 trustees
in the state, including the ports of Los Angeles, Long Beach,
San Diego, San Francisco, Oakland, Richmond, Benicia, and
Eureka. While these trust lands are managed locally, SLC has
oversight authority to ensure those local trustees are complying
with the Public Trust Doctrine and the applicable granting
statutes.
Sea level rise is an issue that has far reaching consequences
for public trust lands held by local trustees. Sea level rise
threatens coastal communities and infrastructure, including
transportation facilities, electric utility systems and power
plants, storm water systems and wastewater treatment plants and
outfalls, vast areas of wetlands, and many other human and
natural systems.
On August 10, 2009, as part of its oversight responsibilities,
SLC sent out 104 surveys regarding sea level rise to all of its
grantees and lessees of major facilities along the coast and San
Francisco Bay. The survey included questions related to
identifying existing facilities and the life expectancy of these
facilities; whether the respondent has considered the effect of
sea level rise on its facilities; how its facilities would be
impacted by a sea level rise of 16" and 55" (projected increases
in sea level by the years 2050 and 2100); what actions the
respondents were considering to address sea level rise,
including an estimate of cost; and whether the respondents were
considering adaptation strategies to mitigate for sea level
rise. Of the104 surveys sent out, only 40 responses were
received. A majority of these responses provided information
indicating that trustees have not yet begun to comprehensively
consider the impacts of sea level rise.
A local trustee's failure to plan for sea level rise may be
considered a breach of its trust responsibilities. The courts
frequently cite by analogy private trust law in connection with
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certain problems arising under such circumstances as in the
public trust. Coronado v. San Diego Unified Port Dist. (1964)
227 Cal. App. 2d 455, 473. Under California private trust law,
"the trustee has a duty to take reasonable steps under the
circumstances to take and keep control of and to preserve the
trust property." Cal. Prob. Code � 16002. By analogy, a local
trustee of granted public trust lands has the same duty to take
reasonable steps under the circumstances to take and keep
control of and to preserve the trust property.
The purpose of this bill is to ensure that a local trustee takes
reasonable steps to protect granted public trust lands from sea
level rise. The local trustee is in the best position to
conduct this planning because it has the administrative control
over its granted trust land and, in most cases, generates
revenues off of the land, which must be used for purposes such
as managing and preserving the trust assets. A local trustee
would be exempt from the bill's requirements if it does not have
sufficient public trust funds to pay for the cost of the Plan.
Suggested Amendments : Airports on granted public trust lands
must comply with Federal Aviation Administration's regulations
regarding wildlife management to prevent, for example, bird
strikes by aircraft. The author may consider amendments that
ensure a sea level action plan does not conflict with these
Federal Aviation Administration's regulations.
REGISTERED SUPPORT / OPPOSITION :
Support
John Chiang, State Controller (sponsor)
California Coastkeeper Alliance
Endangered Habitats League
San Francisco Baykeeper
Save the Bay
State Lands Commission
Opposition
American Council of Engineering Companies of California
Automotive Aftermarket Industry Association
California Automotive Wholesalers' Association
California Chamber of Commerce
California Business Properties Association
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California League of Food Processors
California Manufacturers & Technology Association
California State Association of Counties
Western States Petroleum Association
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092