BILL ANALYSIS �
AB 2509
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Date of Hearing: April 16, 2012
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
AB 2509 (Nielsen) - As Amended: April 9, 2012
SUBJECT : Surface mining and reclamation plans: exempted
activities
SUMMARY : Requires that to qualify for the Surface Mining and
Reclamation Act (SMARA) exemption regarding restoration of lands
affected by a flood or natural disaster, excavation or grading
must occur within 20 years of when the lands were affected.
EXISTING LAW :
1)Creates SMARA, which prohibits a person from conducting
surface mining operations unless the lead agency for the
operation issues a surface mining permit and approves a
reclamation plan and financial assurances for reclamation.
Depending on the circumstances, a lead agency can be a city,
county, the San Francisco Bay Conservation and Development
Commission, or the State Mining and Geology Board (Board)
within the Department of Conservation (Department).
2)Exempts several surface mining activities from the
requirements of SMARA, including:
a) Excavations or grading conducted for farming or the
immediate excavation or grading of lands affected by a
flood or natural disaster for the purpose of restoring
those lands to their prior condition.
b) Prospecting for, or the extraction of, minerals for
commercial purposes where the removal of overburden or
mineral product totals less than 1,000 cubic yards in any
one location, and the total surface area disturbed is less
than one acre.
THIS BILL requires that to qualify for the SMARA exemption
regarding restoration of lands affected by a flood or natural
disaster, excavation or grading must occur within 20 years of
when the lands were affected.
FISCAL EFFECT : Unknown
AB 2509
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COMMENTS :
1)Purpose of the bill. According to the author's office, this
bill will "correct a regulation that is stopping farmers and
ranchers from removing and selling soil from their fields that
have been deposited by floods."
2)Conflict between SMARA law and regulation. The Legislature in
adopting SMARA intended to create and maintain an effective
surface mining and reclamation policy to prevent or minimize
adverse environmental effects, reclaim mined lands to a usable
condition that is adaptable to alternative uses, and encourage
the production and conservation of minerals while giving
consideration to values relating to recreation, watershed,
wildlife, range and forage, and aesthetic enjoyment.
Section 2714 of the Public Resources Code (Section 2714) list
several exemptions to SMARA, most of which involve infrequent,
minor, or incidental surface disturbances. One of these
exemptions is for "excavations or grading conducted for
farming or the immediate excavation or grading of lands
affected by a flood or natural disaster for the purpose of
restoring those lands to their prior condition" (the farming
and flood exemption). Another exemption is for "the
extraction of minerals for commercial purposes where the
removal of overburden or mineral product totals less than
1,000 cubic yards in any one location, and the total surface
area disturbed is less than one acre" (the 1,000 cubic yards
exemption). On its face, Section 2714 treats the farming and
flood exemption and the 1,000 cubic yards exemption as
separate and distinct from each other. As such, a property
owner should be able to qualify for the farming and flood
exemption to restore his/her property even if he/she sells
more than 1,000 cubic yards of the incidentally produced
overburden or mineral product.
The Board's regulations, however, do not treat these two
exemptions as separate and distinct. Specifically, Section
3505 of Title 14 of the California Code of Regulations
(Section 3505) restricts the farming and flood exemption to
activities that involve less than 1,000 cubic yards of mineral
materials that are exported for commercial purposes. This
limits the farming and flood exemption to activities that
would already qualify under the 1,000 cubic yards exemption
and, therefore, renders the farming and flood exemption
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superfluous. This treatment of the farming and flood
exemption runs counter to the canons of statutory
construction, which encourages an interpretation that best
serves to harmonize the statute internally.
The author cites a case, the Goose Farm North Project, in
which a property owner applied for a one-time SMARA exemption
from the Board to remove silt, sand, and debris derived from
over flow and flooding from a nearby river. The property
owner proposed to grade the land so it would be level and
suitable for agricultural purposes. The project was
anticipated to exceed the extraction of 1,000 cubic yards of
material for commercial purposes. According to the sponsor,
without an exemption, it would have been too costly for the
property owner to comply with SMARA, which requires a
reclamation plan and financial assurances.
The Goose Farm North Project case seems to fit perfectly
within the farming and flood exemption in Section 2714-the
grading would be conducted for farming as well as to restore
lands that had been flooded. The Board's Executive Officer's
Report for this case, however, made no reference to the
farming and flood exemption. Instead it explained how the
project did not fit within the 1,000 cubic yards exemption.
The report then analyzed the case under a separate exemption
for "other surface mining operations that the Board?
determines to be of an infrequent nature and which involve
only minor surface disturbances." Under this exemption, the
Board authorized the activities proposed by the property
owner. The sponsor of the bill argues that the process
associated with the exemption used in the Goose Farm North
Project case is more costly and time consuming than if the
farming and flood exemption was utilized and applied
appropriately.
3)Suggested Amendments. The intent of this bill, according to
the author and sponsor, is to allow a person to utilize the
farming and flood exemption without having to also meet the
requirements of Section 3505. The bill, however, does not
affect Section 3505 either directly or indirectly. Instead,
the bill allows a person to utilize the farming and flood
exemption within 20 years of when the lands were flooded.
This does not resolve the problem caused by Section 3505.
The author and committee may wish to consider amendments that
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expressly state that a person may utilize the farming and
flood exemption regardless of the amount of mineral materials
exported for commercial purposes unless such activities create
more than minor surface disturbances. To ensure that this
exemption will be used legitimately for farming or for land
restoration after a flood, and not for unrelated purposes, the
author and committee may also wish to consider amendments that
(a) only allow a person to sell the mineral materials to the
extent that the proceeds offset the costs of excavating,
grading, and exporting, (b) allow a person to perform
restoration activities within a reasonable time, considering
the circumstances, after the flood or natural disaster has
occurred, and (c) require a person to notify the Board prior
to utilizing this exemption.
REGISTERED SUPPORT / OPPOSITION :
Support
Sutter County Board of Supervisors
Opposition
None on file
Analysis Prepared by : Mario DeBernardo / NAT. RES. / (916)
319-2092