BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 752 HEARING DATE: June 28, 2011
AUTHOR: Brownley URGENCY: No
VERSION: May 27, 2011 CONSULTANT: Marie Liu
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Tidelands and submerged lands: sea level action plan.
BACKGROUND AND EXISTING LAW
The State Lands Commission (Commission) is charged with managing
and protecting the state's tide and submerged lands for the
public trust. With legislative approval, the Commission may
grant state tidelands to local governments for their use and
maintenance. The Legislature has transferred certain sovereign
lands in trust to over 80 public entities including cities,
counties, and harbor districts. Examples of these "granted"
lands include the ports of Los Angeles, Long Beach, San Diego,
San Francisco, Oakland, Richmond, Benicia, and Eureka. The
Commission has oversight responsibilities over the trustees to
ensure compliance with the grant terms, California law, and the
Public Trust Doctrine.
PROPOSED LAW
This bill would require a local trustee of granted public trust
lands to prepare a sea level action plan (plan), by July 1,
2013, if the local trustee receives more than $250,000 in gross
revenues from the granted trust lands. The plans would do the
following:
Use information from the: (1) 2009 California Climate
Adaptation Strategy prepared by the Natural Resources Agency,
(2) Report on Sea Level Rise Preparedness prepared by the
Commission, (3) Sea Level Rise Assessment Report prepared by
the National Academy of Sciences, if available, (4) resolution
of the California Ocean Protection Council on Sea-Level Rise,
and the (5) State of California Sea-Level Rise Interim
Guidance Document.
Assess sea level rise (SLR) impacts on the granted lands.
Generate maps indicating the areas affected by predicted SLR
in the years 2050 and 2100.
Estimate the fiscal costs of SLR on granted lands, including
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repair costs, costs of lost uses, and anticipated mitigation
costs.
Establish strategies to prevent or mitigate damage to existing
development and infrastructure and to protect and enhance
undeveloped shorelines. Grantees must consider using
non-engineered measures to accomplish these strategies where
feasible.
Establish design standards that would avoid impacts to new
development and infrastructure.
Establish implementation measures and timetables.
The Commission would be required to exempt a trustee from the
requirement to develop a sea level plan or allow the trustee to
submit a modified plan if: (1) none of the trustee's granted
lands are subject to SLR by 2100, (2) the cost of preparing the
plan substantially outweighs the economic and environmental
benefits that the plan would identify with respect to SLR on
their granted lands, and (3) revenues derived from the granted
tidelands and outside funding are insufficient to pay for the
cost of developing the plan. Any local trustee subject to this
bill would explicitly not be required to implement the SLR plan.
The bill also makes a number of findings regarding
responsibilities of trustees of granted lands, the trustee's
fiduciary duties to the control and preservation of the granted
lands, and the impacts of climate change and SLR to the state
and port activities.
ARGUMENTS IN SUPPORT
State Controller John Chiang, the sponsor of this bill, states,
"�This] measure will improve the State's overall understanding
of sea level rise readiness and yield valuable input from local
granted lands stakeholders on how the State, as a whole, should
address this pressing climate issue. Specifically, the bill
would require all trustees to estimate the cost, prepare maps,
identify strategies, and provide timelines to implement sea
level rise action plans. The risks of sea level rise must be
assessed as soon as possible. With projected increases of 16" in
2050 and 55" by 2100, it won't be long before sea level rise
will threaten entire communities. Furthermore, inaction puts the
State and nation at grave economic risk. California's coast is
crucial to the state and national economy, producing more than a
half million jobs in California and two million jobs nationally.
Port activities in California generate an estimated $7 billion
annually in state and local tax revenues."
ARGUMENTS IN OPPOSITION
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The Delta Counties Coalition, states in opposition, "While the
�Delta Counties Coalition] certainly supports consideration of
the potential for sea level rise in local planning, this
measure?does not provide any source of funding for local land
use agencies to comply with this measure."
The California State Association of Counties, states in
opposition to a previous version of the bill, "Although the bill
includes language that would exempt a local trustee from this
requirement if the revenues derived from its granted public
trust lands are not sufficient, we remain concerned about the
State Lands Commission's ability to determine if a local entity
has the fiscal wherewithal to develop a plan."
COMMENTS
Development vs. Implementation of the Plan : This bill would
require local trustees to create the plan but explicitly not
require the trustee to implement that plan. The author contends
that there is value to these plans, even if not implemented, so
the state can evaluate whether all state lands are planned to be
protected in a consistent manner.
Why this bill is not tagged an unfunded local mandate. The bill
makes numerous findings regarding the local trustee's fiduciary
responsibility to take reasonable steps to manage and preserve
the trust property. The bill states that evaluation of sea level
rise impacts on granted lands is directly related to the
management of the trust property. Thus, the bill finds that it
is appropriate for the trustee to use any revenues received from
the trust lands and trust assets to prepare the plan. The
Committee should note that this bill only requires the local
trustee to create a plan for the granted lands, not all land
within the local trustee's jurisdiction. Opponents argue that
revenues from the trust lands are already being utilized to
protect the public trust on the granted lands, however, the bill
does provide a "hardship provision" that allows the commission
to exempt or modify a local trustee's requirements should the
trustee have insufficient funds. Furthermore, local trustees who
receive no or little revenues (up to $250,000) from the trust
lands would be automatically exempt from the requirement to
prepare the plan. According to a chart provided to the Committee
from the author's office, a substantial number of local trustees
will be exempt from this bill because of the $250,000 threshold.
Reports referenced in the bill for sea level rise information:
Report on Sea Level Rise Preparedness: This report, released by
the Commission in December 2009, summarized the efforts of state
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agencies, federal agencies, and other coastal states to address
SLR. The report also contained the results of a survey to the
state's major lessees and grantees to assess the extent which
they have considered the potential impacts of SLR on facilities
on granted lands. The survey revealed that, "the majority of
survey respondents have not yet begun to comprehensively
consider the impacts of sea level rise." The report also made 16
recommendations for the Commission's consideration including
several which are consistent with this bill, specifically:
Require all new coastal development projects SLR level rises
of 16" and 55", depending on the life of the project.
Adopt engineering design standards that would require major
facilities to withstand a defined storm event, such as a
100-year storm, taking into account SLR.
Evaluate structures subject to the ocean environment (wharves,
docks, levees, piers, etc.) for structural integrity and
potential hazards as sea level rises.
California Climate Adaptation Strategy: In December 2009, the
Resources Agency released the California Climate Adaptation
Strategy (CAS), pursuant to Executive Order S-13-2008, which
directed the Resources Agency to identify how state agencies can
respond to rising temperatures, changing precipitation patterns,
SLR, and extreme natural events. The report noted that climate
change is already affecting California with increased average
temperatures, more extreme hot days, fewer cold nights, shifts
in the water cycle, and the lengthening of the growing season.
The report stated that not addressing these changes could cause
significant economic damages to the state in the trillions of
dollars; thus, the state must address climate change challenges
with both climate adaptation and mitigation.
Resolution of the California Ocean Protection Council on
Sea-Level Rise: This resolution recommends that vulnerabilities
be assessed over a range of SLR projects, including analysis of
the highest SLR values presented in the current state guidance
document and not solely use of the lower range of projections.
The resolution also recommends avoiding making decisions based
on SLR projections that would result in high risk and for state
agencies and entities implementing projects on state lands or
funded by the state to coordinate and use the same SLR
projections when working on the same project or program.
State of California Sea-Level Rise Interim Guidance Document:
This document establishes the guidelines on how state agencies
are to address SLR. Asking local trustees to follow the same
guidelines can help assure some statewide consistency in plans.
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This document also recommends that agencies consider extreme
events and changing shorelines and provides a framework for
considering adaptive capacity, consequences, and risk. An update
of this guidance document is expected to be completed in early
2012.
Sea Level Rise Assessment Report prepared by the National
Academy of Sciences: This document is informing the update of
the Sea-Level Rise Interim Guidance Documents.
What is the projected SLR in 2050 and 2100? There is a range of
predictions on SLR that California may see in the future,
including in the documents cited by this bill. Additionally, the
extent of SLR is still being studied, and projections are likely
to be modified with this additional information. While this bill
does not explicitly specify the increases that the trustees
should plan to, the bill does state that the plan should be
developed using specific sources that the state is using for its
own planning. Also, according to the author, the intention is
for the plans to consider a range of SLR values. The committee
may find that it is valuable for all trustees to plan to similar
ranges of SLR projections to create uniformity in plans.
Previous related legislation: Last year, this committee passed a
very similar proposal, AB 2698 (Brownley) that was ultimately
held on suspense by the Senate Appropriations Committee. The
most notable difference between this measure and AB 2598 is the
automatic exemption from the requirements to create a plan if a
local trustee receives less than $250,000 in revenues from the
trust lands.
SUPPORT
Audubon
California Coastal Protection Network
California Coastkeeper Alliance
California State Lands Commission
City and County of San Francisco
Clean Water Action
Coastal Environmental Rights Foundation
Defenders of Wildlife
Endangered Habitats League
John Chiang, California State Controller (sponsor)
Natural Resources Defense Council
Ocean Conservancy
Planning and Conservation League
San Diego Coastkeeper
San Francisco Baykeeper
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Save the Bay
Save the Bay
Sierra Club California
Surfrider Foundation
The Nature Conservancy
Union of Concerned Scientists
OPPOSITION
*All opposition letters were received regarding a previous
version of the bill, except as noted*
American Council of Engineering Companies of California
Automotive Aftermarket Industry Association
California Automotive Wholesales' Association
California Business Properties Association
California Chamber of Commerce
California League of Food Processors
California Manufactures & Technology Association
California State Association of Counties
Delta Counties Coalition
League of California Cities - current version of bill
Monterey County Board of Supervisors
Regional Council of Rural Counties
Western States Petroleum Association
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