Bill Text: CA AB2267 | 2011-2012 | Regular Session | Amended
Bill Title: Marine resources and preservation.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Engrossed - Dead) 2012-08-16 - In committee: Held under submission. [AB2267 Detail]
Download: California-2011-AB2267-Amended.html
BILL NUMBER: AB 2267 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 26, 2012
INTRODUCED BY Assembly Member Hall
FEBRUARY 24, 2012
An act to amend Sections 6602, 6612, 6613, 6616, and 6618 of the
Fish and Game Code, relating to marine resources.
LEGISLATIVE COUNSEL'S DIGEST
AB 2267, as amended, Hall. Marine resources and preservation.
(1) The
The California Marine Resources Legacy Act establishes
a program, administered by the Department of Fish and Game, to allow
partial removal of offshore oil structures. The act authorizes the
department to conditionally approve the partial removal of offshore
oil structures, if specified criteria are satisfied, including a
finding that the alternative of partial removal provides a net
environmental benefit and substantial cost savings compared to the
alternative of full removal of these structures. The act
requires the first person to file an application on and after January
1, 2011, to partially remove an offshore oil structure to pay, in
addition to other specified costs, the startup costs incurred by the
department or the State Lands Commission to implement the act,
including the costs to develop and adopt regulations. The
act requires the payment of startup costs to be reimbursed by the
department, as specified. The act requires the Ocean Protection
Council, for purposes of determining whether partial removal
provides a net environmental benefit, to establish specified
criteria, to consult with the department, the California Coastal
Commission, the State Lands Commission, the California Ocean Science
Trust, and other responsible agencies as to those criteria, and
requires certification that partial removal complies with the
California Environmental Quality Act, among other things. The act
requires the State Lands Commission to determine the cost savings of
partial removal, and requires the applicant, upon conditional
approval for conversion, to apportion a percentage of the
cost-savings funds in accordance with a prescribed schedule to
specified entities and funds. The act defines "cost savings" to mean
the difference between the estimated cost to the applicant of
complete removal of an oil platform, as required by state and federal
leases, and the estimated costs to the applicant of partial removal
of the oil platform pursuant to the act, and specifically provides
for the inclusion of certain costs in cost savings.
This bill would specifically include certain additional costs in
"cost savings" calculations for purposes of these provisions ,
as specified .
The bill would specify additional costs in "cost savings"
calculations to be used for applications submitted on or before
January 1, 2017, and would no longer require the payment of startup
costs to be reimbursed by the department for those applications, as
specified.
The bill would require the council, in determining whether partial
removal of the structure would provide a net benefit to the marine
environment compared to full removal of the structure, to take
certain adverse impacts to air quality into account and to
consult with the State Air Resources Board, among other entities
.
(2) The act criteria that are required to be satisfied for the
department to grant conditional approval of an application for
partial removal of an offshore oil structure include a requirement
that the department has entered into an indemnification agreement
with the applicant that indemnifies the state and the department, to
the extent permitted by law, against any and all liability that may
result, including, but not limited to, active negligence, and
including defending the state and the department against any claims
against the state for any actions the state undertakes pursuant to
the act.
This bill would exclude intentional misconduct and active
negligence from that indemnification agreement. The bill would also
provide that the provision in the agreement that requires defending
the state and the department against any claims against the state for
any actions the state undertakes pursuant to the act would apply
except to the extent that the department fails to carry out the
actions required by, or alters the structure or its use in a manner
inconsistent with, a management plan under the act.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6602 of the Fish and Game Code is amended to
read:
6602. For purposes of this chapter, the following terms have the
following meanings:
(a) "Applicant" means the owner or operator of an offshore oil
structure in state or federal waters or another party responsible for
decommissioning an offshore oil structure in state or federal waters
who applies pursuant to this chapter to carry out partial removal of
the structure.
(b) "Commission" means the State Lands Commission.
(c) "Conservancy" means the State Coastal Conservancy.
(d) "Cost savings" means the difference between the estimated cost
to the applicant of complete removal of an oil platform as required
by state and federal leases and the estimated costs to the applicant
of partial removal of the oil platform , including all costs
to the applicant of participation in the program pursuant
to this chapter , including all costs to the applicant of
participation in either program .
(e) "Council" means the Ocean Protection Council.
(f) "Endowment" means the California Endowment for Marine
Preservation established in Division 37 (commencing with Section
71500) of the Public Resources Code.
(g) "Exclusive economic zone (EEZ)" means the zone as measured
from the mean high tide line seaward to 200 nautical miles, as set
forth in Presidential Proclamation 5030 of March 10, 1983, in which
the United States proclaimed jurisdiction over the resources of the
ocean within 200 miles of the coastline.
(h) "National Fishing Enhancement Act of 1984" means Title II of
Public Law 98-623.
(i) "Offshore oil structure" means platforms, piers, and
artificial islands located seaward of mean lower low water, used for
oil and gas exploration, development, production, processing, or
storage.
(j) "Oil" means any kind of petroleum, liquid hydrocarbons,
natural gas, or petroleum products or any fraction or residues
therefrom.
(k) "Open coastal marine resources" means those marine resources
that use open coastal waters as their habitat.
(l) "Open coastal waters" means the area composed of the submerged
lands of the state that are below the mean lower low water,
extending seaward to the boundaries of the exclusive economic zone.
(m) "Partial removal" means an alternative to full removal of an
offshore oil structure, in compliance with all requirements of this
chapter.
(n) "State waters" means waters within the seaward boundary of the
state as identified in Section 2 of Article III of the California
Constitution.
SEC. 2. Section 6612 of the Fish and Game Code is amended to read:
6612. (a) Upon receipt of an application to partially remove an
offshore oil structure pursuant to this chapter, the department shall
determine whether the application is complete and includes all
information needed by the department.
(b) (1) Upon a determination that the application is complete, the
applicant shall provide surety bonds executed by an admitted surety
insurer, irrevocable letters of credit, trust funds, or other forms
of financial assurances, determined by the department to be available
and adequate, to ensure that the applicant will provide sufficient
funds to the department, council, commission, and conservancy to
carry out all required activities pursuant to this article, including
all of the following:
(A) Environmental review of the proposed project pursuant to
Section 6604.
(B) A determination of net environmental benefit pursuant to
Section 6613.
(C) A determination of cost savings pursuant to Section 6614.
(D) Preparation of a management plan for the structure pursuant to
Section 6615.
(E) Implementation of the management plan and ongoing maintenance
of the structure after the department takes title pursuant to Section
6620.
(F) Development of an advisory spending plan pursuant to Section
6621.
(G) Other activities undertaken to meet the requirements of this
article, including the costs of reviewing applications for
completeness, and reviewing, approving, and permitting the proposed
project, which includes the costs of determining whether the project
meets the requirements of all applicable laws and regulations and the
costs of environmental assessment and review.
(2) The department shall consult with the council, commission, and
conservancy in determining appropriate funding for activities to be
carried out by those agencies.
(3) The funds provided pursuant to paragraph (1) of this
subdivision and subdivision (c) shall not be
included considered in the calculation
of cost savings pursuant to Section 6614 and
or the apportionment of cost savings pursuant to Section 6618.
(c) The first person to file an application on and after January
1, 2011, to partially remove an offshore oil structure pursuant to
this chapter, shall pay, in addition to all costs identified under
subdivision (b), the startup costs incurred by the department or the
commission to implement this chapter, including the costs to develop
and adopt regulations pursuant to this chapter. The funds
paid by the first applicant pursuant to this subdivision shall be
included in the calculation of the first applicant's cost savings
pursuant to Section 6614. This payment of startup costs
shall be reimbursed by the department as provided in paragraph (3) of
subdivision (c) of Section 6618.
(d) As soon as feasible after reaching the agreement pursuant to
subdivision (b), the lead agency shall begin the environmental review
of the proposed project as required pursuant to Section 6604.
(e) For applications submitted on or before January 1, 2017, the
provisions of subdivisions (a) through (d) shall apply, except as
follows:
(1) The funds provided pursuant to paragraph (1) of subdivision
(b) and subdivision (c) shall be included in the calculation of cost
savings pursuant to Section 6614 and the apportionment of cost
savings pursuant to Section 6618.
(2) The funds paid by the first person to file an application, as
specified in subdivision (c), shall be included in the calculation of
the first applicant's cost savings pursuant to Section 6614.
Notwithstanding paragraph (3) of subdivision (c) of Section 6618, the
payment of startup costs shall not be reimbursed by the department.
SEC. 3. Section 6613 of the Fish and Game Code is amended to read:
6613. (a) The council shall determine whether the partial removal
of an offshore oil structure pursuant to this chapter provides a net
benefit to the marine environment compared to the full removal of
the structure.
(b) As a necessary prerequisite to determining net environmental
benefit as required in subdivision (a), the council shall, upon
receipt of its initial application from the department pursuant to
Section 6610, establish appropriate criteria for evaluating the net
environmental benefit of full removal and partial removal of offshore
oil structures.
(1) The criteria shall include, but are not limited to, the depth
of the partially removed structure in relation to its value as
habitat and the location of the structure, including its proximity to
other reefs, both natural and artificial.
(2) The criteria shall not include any consideration of the funds
to be generated by the partial removal of the structure.
(3) In determining the criteria, the council shall consult with
appropriate entities, including, but not limited to, the department,
the commission, the State Air Resources Board, the
California Coastal Commission, and the California Ocean Science
Trust.
(4) The council shall establish the criteria in time to use them
in making its initial determination of net environmental benefit
pursuant to this section.
(c) Upon certification of environmental documents pursuant to the
California Environmental Quality Act, the council shall, based on the
criteria developed pursuant to subdivision (b) and other relevant
information, determine whether partial removal of the structure would
provide a net benefit to the marine environment compared to full
removal of the structure. In making the determination, the council
shall, at a minimum, take into account the following:
(1) The contribution of the proposed structure to protection and
productivity of fish and other marine life.
(2) Any adverse impacts to biological resources, water quality, or
air quality, or any other marine environmental impacts, from the
full removal of the facility that would be avoided by partial removal
as proposed in the application.
(3) Any adverse impacts to biological resources, water quality, or
air quality, or any other marine environmental impacts, from partial
removal of the structure as proposed in the application.
(4) Any benefits to the marine environment that would result from
the full removal of the structure or from partial removal as proposed
in the application.
(5) Any identified management requirements and restrictions of the
partially removed structure, including, but not limited to,
restrictions on fishing or other activities at the site.
(d) Benefits resulting from the contribution of cost savings to
the endowment shall not be considered in the determination of net
environmental benefit.
(e) The council may contract or enter into a memorandum of
understanding with any other appropriate governmental or
nongovernmental entity to assist in its determination of net
environmental benefit.
(f) The determination made pursuant to this section and submitted
to the department by the council shall constitute the final
determination and shall not be revised except by the council.
(g) The council shall take all feasible steps to complete its
determination in a timely manner that accommodates the department's
schedule for consideration of the application.
SEC. 4. Section 6616 of the Fish and Game Code is amended to read:
6616. The department may grant conditional approval of an
application for partial removal of an offshore oil structure only if
all of the following criteria are satisfied:
(a) The partial removal of the offshore oil structure and the
planning, development, maintenance, and operation of the structure
would be consistent with all applicable state, federal, and
international laws, including, but not limited to, all of the
following:
(1) The federal Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. Sec. 1801 et seq.).
(2) The federal National Fishing Enhancement Act of 1984 (33
U.S.C. Sec. 2101 et seq.).
(3) The federal Coastal Zone Management Act (16 U.S.C. Sec. 1451
et seq.).
(4) The California Coastal Management Program.
(5) The Marine Life Management Act (Part 1.7 (commencing with
Section 7050)).
(6) The Marine Life Protection Act (Chapter 10.5 (commencing with
Section 2850) of Division 3).
(7) State and federal water quality laws.
(8) Navigational safety laws.
(b) The partial removal of the offshore oil structure provides a
net benefit to the marine environment compared to full removal of the
structure, as determined pursuant to Section 6613.
(c) The cost savings that would result from the conversion of the
offshore oil platform or production facility have been determined
pursuant to Section 6614.
(d) The applicant has provided sufficient funds consistent with
subdivision (b) of Section 6612.
(e) The department and the applicant have entered into a
contractual agreement whereby the applicant will provide sufficient
funds for overall management of the structure by the department,
including, but not limited to, ongoing management, operations,
maintenance, monitoring, and enforcement as these relate to the
structure.
(f) The department has entered into an indemnification agreement
with the applicant that indemnifies the state and the department, to
the extent permitted by law, against any and all liability that may
result, excluding intentional misconduct and
including, but not limited to, active negligence, and including
defending the state and the department against any claims against
the state for any actions the state undertakes pursuant to this
article , except to the extent that the department fails to
carry out the actions required by, or alters the structure or its use
in a manner inconsistent with, the management plan prepared pursuant
to Section 6615 . The agreement may be in the form of an
insurance policy, cash settlement, or other mechanism as determined
by the department. In adopting indemnification requirements for the
agreement, the department shall ensure that the state can defend
itself against any liability claims against the state for any actions
the state undertakes pursuant to this article and pay any resulting
judgments. The department shall consult with and, as necessary, use
the resources of the office of the Attorney General in preparing and
entering into the indemnification agreement. The cost to the
applicant of providing indemnification by agreement, insurance
policy, cash settlement, or other mechanism shall be included in the
calculation of cost savings pursuant to Section 6614 only for
applications submitted on or before January 1, 2017 .
(g) The applicant has applied for and received all required
permits, leases, and approvals issued by any governmental agency,
including, but not limited to, a lease issued by the commission if
the proposed project involves state tidelands and submerged lands.
For structures located in federal waters, all of the following
requirements shall be met:
(1) The department and the owner or operator of the structure
reach an agreement providing for the department to take title to the
platform or facility as provided in Section 6620.
(2) The department acquires the permit issued by the United States
Army Corps of Engineers.
(3) The partial removal of the structure is approved by the Bureau
of Ocean Energy Management, Regulation and Enforcement of the United
States Department of the Interior.
SEC. 5. Section 6618 of the Fish and Game Code is amended to read:
6618. (a) The cost savings from the partial removal of an
offshore oil structure, as determined pursuant to Section 6614, shall
be apportioned and transmitted as described in this section.
(b) Upon receipt of conditional approval pursuant to Section 6617,
the applicant shall apportion and directly transmit a portion of the
total amount of the cost savings to the entities in subdivision (c)
as follows:
(1) Fifty-five percent, if the application was submitted before
January 1, 2017.
(2) Sixty-five percent, if the application was submitted on or
after January 1, 2017, and before January 1, 2023.
(3) Eighty percent, if the application was submitted on or after
January 1, 2023.
(c) Of the total amount of the cost savings to be transmitted
pursuant to subdivision (b), the applicant shall directly transmit
the following amounts to the following entities:
(1) Eighty-five percent shall be deposited into the California
Endowment for Marine Preservation established pursuant to Division 37
(commencing with Section 71500) of the Public Resources Code.
(2) Ten percent shall be deposited into the General Fund.
(3) Two percent shall be deposited into the Fish and Game
Preservation Fund for expenditure, upon appropriation by the
Legislature, by the department to pay any costs imposed by this
chapter that are not otherwise provided for pursuant to subdivision
(b) of Section 6612 and subdivision (e) of Section 6616. Any moneys
remaining in the Fish and Game Preservation Fund, after providing for
these costs, shall be used, upon appropriation by the Legislature,
first to reimburse the payment of the startup costs described in
subdivision (c) of Section 6612, and thereafter to conserve, protect,
restore, and enhance the coastal and marine resources of the state
consistent with the mission of the department.
(4) Two percent shall be deposited into the Coastal Act Services
Fund, established pursuant to Section 30620.1 of the Public Resources
Code, and shall be allocated to support state agency work involving
research, planning, and regulatory review associated with the
application and enforcement of coastal management policies in state
and federal waters pursuant to state and federal quasi-judicial
authority over offshore oil and gas development.
(5) One percent shall be deposited with the board of supervisors
of the county immediately adjacent to the location of the facility
prior to its decommissioning. The amount paid to the county shall be
managed pursuant to paragraph (1) of subdivision (d) of Section 6817
of the Public Resources Code.
