BILL ANALYSIS �
AB 2211
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Date of Hearing: May 7, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2211 (Jones) - As Introduced: February 24, 2012
SUBJECT : Coastal resources: California Coastal Act of 1976:
goals and legislative findings and declarations
SUMMARY : Requires that when there is a conflict between the
California Coastal Act's (Coastal Act) coastal resources
planning and management policies, those conflicts be resolved in
a manner that balances the protection of significant coastal
resources with the economic and social benefits provided by a
proposed coastal development project to the community at large.
EXISTING LAW : Pursuant to the Coastal Act:
1)Creates the California Coastal Commission (Commission), which
makes permit decisions regarding development in the coastal
zone and reviews local coastal programs prepared by local
governments and submitted for Commission approval. The
Commission also reviews federal activities that affect the
coastal zone.
2)Defines the "coastal zone" as the land and water area of the
State of California from the Oregon border to the border of
the Republic of Mexico, extending seaward to the state's outer
limit of jurisdiction, including all offshore islands, and
extending inland generally 1,000 yards from the mean high tide
line of the sea. In significant coastal estuarine, habitat,
and recreational areas the coastal zone extends inland to the
first major ridgeline paralleling the sea or five miles from
the mean high tide line of the sea, whichever is less, and in
developed urban areas the zone generally extends inland less
than 1,000 yards. The coastal zone does not include the area
of jurisdiction of the San Francisco Bay Conservation and
Development Commission nor any area contiguous thereto,
including any river, stream, tributary, creek, or flood
control or drainage channel flowing into such area.
3)Finds a declares that the basic goals of the state for the
coastal zone are to:
a) Protect, maintain, and, where feasible, enhance and
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restore the overall quality of the coastal zone environment
and its natural and artificial resources.
b) Assure orderly, balanced utilization and conservation of
coastal zone resources taking into account the social and
economic needs of the people of the state.
c) Maximize public access to and along the coast and
maximize public recreational opportunities in the coastal
zone consistent with sound resources conservation
principles and constitutionally protected rights of private
property owners.
d) Assure priority for coastal-dependent and
coastal-related development over other development on the
coast.
e) Encourage state and local initiatives and cooperation in
preparing procedures to implement coordinated planning and
development for mutually beneficial uses, including
educational uses, in the coastal zone.
4)Requires that when there is a conflict between the Coastal
Act's coastal resources planning and management policies,
which include specific policies related to public access,
recreation, marine environment, land resources, and
residential, commercial, and industrial development, the
Commission must resolve those conflicts in a manner that on
balance is the most protective of significant coastal
resource.
THIS BILL : Requires that when there is a conflict between the
Coastal Act's coastal resources planning and management
policies, those conflicts be resolved in a manner that balances
the protection of significant coastal resources with the
economic and social benefits provided by a proposed coastal
development project to the community at large, which includes,
but is not limited to, the economic prosperity of the region.
"Social and economic needs" include both the infrastructure and
development that are needed to support the continued economic
and population growth of the state.
FISCAL EFFECT : Unknown
COMMENTS :
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1)Purpose of the Bill. According to the author:
One of the goals of the Coastal Commission in carrying
out its mission is to take 'into account the social and
economic needs of the people of the state.' Despite this
requirement, the Coastal Commission frequently neglects
to consider infrastructure and development demands that
communities and regions face; in fact, the Coastal Act
states that in instances of conflict, that the Commission
resolves them 'in a manner which on balance is the most
protective of significant coastal resources.'
The consequences of this narrow policy have given the
Coastal Commission wide authority to reject the most
reasonable permits for infrastructure requirements.
Without a clarifying statement in the law to articulate
'social and economic' needs in a more enforceable and
clear manner, the Coastal Commission lacks a sufficient
boundary of operation."
2)Background. The Coastal Act requires that when there is a
conflict between its coastal resources planning and management
policies, which includes specific policies related to public
access, recreation, marine environment, land resources, and
residential, commercial, and industrial development, the
Commission must resolve those conflicts in a manner that on
balance is the most protective of significant coastal resource.
This is commonly referred to as "the balancing provision" or
"conflict resolution procedures."
According to the Court of Appeal in Bolsa Chica Land Trust v.
Superior Court (1999) 71 Cal. App. 4th 493, for a conflict to
exist there must be a policy of interest of the Coastal Act that
directly conflicts with the application of another policy or
interest of the Coastal Act. In other words, there must be
evidence that a failure to protect a specific policy or interest
of the Coastal Act is a prerequisite to fulfillment of or
compliance with another policy or interest of the Act. The
Commission has interpreted this to mean that in order for a
conflict to exist, the benefits of a project that are to be
balanced against its impacts "must be inherent in the essential
nature of the project." Unless this kind of conflict can be
found, where the benefits and impacts are both inherent in the
"essential nature" of the project, there is no conflict within
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the meaning of the balancing provision.
For example, there would be a conflict under the Coastal Act if
a coastal zone development proposal sought to remove some
agricultural acreage from grazing in order to fence cattle out
of a wetland. The Coastal Act includes policies to protect
water quality, wetlands, and environmentally sensitive habitat
areas. The Act also calls for the protection of agricultural
lands. In this example, the proposal cannot protect the
wetlands habitat without negatively affecting grazing on
agricultural lands. This conflict would allow the Commission to
employ the balancing provision and approve the project because
on balance the project is the most protective of significant
coastal resources.
Most recently, the Commission has utilized the balancing
provision to approve improvements to public transit lines
between San Diego and Los Angeles that involved some minor
impacts to habitat. Viewed in isolation these impacts would have
precluded approval of the tracking improvements. But when
balanced against the project's significant improvements to
public transit and public access, which are also Coastal Act
policies, and combined with mitigation measures for habitat
impacts, the Commission was able to make findings for approval.
Similarly, the Commission recently approved a large lower-cost
visitor-serving campground in Marin County (a Coastal Act
priority use), notwithstanding certain impacts to wetlands and
sensitive habitats).
3)Does the Commission neglect to consider infrastructure and
development demands? The author asserts that the Commission has
"wide authority to reject the most reasonable permits for
infrastructure requirements" and cites three examples that
"demonstrate a disregard for social and economic impacts," which
include permitting problems with a hotel on the Monterey
Peninsula, emergency repairs at Ocean Beach, and
flood-prevention work in San Diego (the Commission has not yet
made a decision on the San Diego project).
The author, however, does not provide the reasons for the
permitting problems associate with these three examples.
Furthermore, the author fails to acknowledge the overwhelming
number of important infrastructure projects approved by the
Commission. Examples, just to name a few, include approval for
(1) the construction of San Onofre Nuclear Power Facility, (2)
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the 1,200 foot long seawall for the City of Santa Cruz at
Pleasure Point to protect eroding bluffs, (3) the expanded dry
cask storage for spent fuel rods and seismic simulator facility
for Diablo Canyon Nuclear Power Facility, (4) the Los Osos
sewage treatment facility, (5) the double-tracking of rail road
tracks in San Diego and Orange Counties, (6) multiple
improvements to Highway 5 in San Diego and Orange Counties,
including additions of high-occupancy vehicle lanes, and the
I-5/56 Interchange, (7) multiple fiber-optic cables along the
ocean floor with associated onshore facilities, (8) major
improvements to Terminal 2 at the San Diego International
Airport, (9) the Port Master Plans for the ports of Los Angeles,
Long Beach, and San Diego, and (10) runway extensions at Los
Angeles International Airport.
Additionally, according to Commission staff, none of the three
examples cited by the author created a conflict within the
meaning of the balancing provision. If there is no conflict,
the balancing provision is not triggered and the bill has no
consequence. Therefore, one could argue that this bill does not
address the problems identified by the author.
REGISTERED SUPPORT / OPPOSITION :
Support
American Council of Engineering Companies
California Coastal Commission
Sierra Club California
Opposition
Ocean Conservancy
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092