May 31, 2023
The Honorable Laura Friedman, Chair
Assembly Transportation Committee
1020 N Street Room 112
Sacramento, California 95814
Re: Administration’s “Direct Contracting Public-Private Partnership Authority I-15 Wildlife Crossings” Trailer Bill – Significant Concerns and Request for Amendments
Dear Chair Friedman:
We write regarding the Administration’s Direct Contracting Public-Private Partnership Authority I-15 Wildlife Crossings Trailer Bill (“Wildlife Crossings Trailer Bill”). Our organizations are among the many that have been advocating for the proposed Brightline West High Speed Rail project to include three wildlife crossings as part of its design to mitigate the permanent and complete blockage of critical wildlife movement areas. We thank you for your leadership in also calling for these wildlife crossing mitigations.
The Wildlife Crossings Trailer Bill requires amendments to include essential provisions that are missing and address concerns with current text. We note that stakeholders working very closely on this matter were not aware of this proposed legislation or the purported need for it until it was introduced, and since then, we have not received any briefing from the Administration. Before commenting on the specifics of the Wildlife Crossings Trailer Bill, we would like to share recent history and context to better explain why we are here.
RECENT HISTORY AND CONTEXT
WHAT IS THE PROBLEM AND SOLUTION? WHO IS THE RESPONSIBLE PARTY AND REGULATORY AGENCY?
As has been explained by state and federal agencies and their scientific experts, state and federal elected officials and a diverse NGO community, the proposed Brightline West High-Speed Rail Project’s (HSR Project) concrete barrier walls would permanently and completely block critical California wildlife movement areas. Unlike highways and other infrastructure throughout California and the nation that create challenges for wildlife movement, the HSR Project’s unique design feature of twin concrete barrier walls would eliminate wildlife movement across nearly 150 miles of I-15 in the California desert. This would have devastating impacts to the world-class wildlife resources found in our California desert, such as bighorn sheep and mountain lion that travel long distances in search of food, water, habitat and mates. These impacts are further magnified considering the increasing impacts of climate change and drought that will drive wildlife to travel further to sustain populations. It is also important to understand that desert wildlife such as the bighorn sheep are of tremendous cultural significance to the San Manuel Band of Mission Indians and many other desert Native peoples.
These agencies, experts, elected officials and organizations have all concluded that it is necessary for the HSR Project to include three wildlife crossings as mitigation measures. Wildlife crossings preserve the movement of wildlife and provide for genetic diversity, connecting populations and allowing individuals to move between habitats, which will be increasingly essential in the face of climate change.
The party responsible for proposing this new, extensive environmental impact to wildlife movement is Brightline, a Miami-based corporation. Brightline is proposing the more than $12 billion HSR Project, requesting hundreds of millions in tax-exempt private activity bonds from California, requesting $3.75 billion in subsidies from the Federal government, and expecting to have an annual operating profit of nearly $1 billion.1 6/11/2020 Forbes article on Brightline: https://www.forbes.com/sites/alanohnsman/2020/06/11/inside-a-wall- street-tycoons-plan-to-get-americans-off-the-highway—and-on-his-trains/?sh=182631b87a04 and https://www.youtube.com/watch?v=Cc6_3uNXcqc
The government agency responsible for establishing mitigation measures is the Federal Railroad Administration (FRA), which has permitting oversight over the HSR Project. FRA is currently updating its National Environmental Policy Act (NEPA) environmental review document and has stated its “NEPA re-evaluation includes a review of design, regulatory, and the associated potential environmental impacts and associated mitigation. The NEPA re-evaluation also includes revisions to the project’s mitigation measures. In updating the re-evaluation, FRA would consider new information provided by the State of California (e.g. CDFW, Caltrans, etc.) and federal partners (e.g. NPS, BLM, etc.) regarding effects to wildlife and wildlife movement and currently proposed mitigation measures for wildlife and wildlife movement.” State and Federal agencies have since provided FRA with new information highlighting that the currently proposed mitigation measures are insufficient and that revisions are needed, specifically the addition of three wildlife crossings. FRA is currently reviewing this matter and has yet to issue its updated NEPA re-evaluation.
ALL STAKEHOLDERS URGING FRA TO FIX THIS PROBLEM
With the problem, solution and process clearly defined, all stakeholders have called on FRA for swift action to protect the fragile California desert ecosystem and finalize the NEPA environmental review document to include the three wildlife crossings as mitigation measures. Letters have been submitted by U.S. Senators Dianne Feinstein and Alex Padilla, Assembly Natural Resources Committee Chair Luz Rivas and Transportation Committee Chair Laura Friedman, the California Department of Fish and Wildlife, leading desert bighorn sheep researchers, the San Manuel Band of Mission Band of Indians, and more than 30 of California’s leading conservation and hunting organizations – all urging FRA to act.2See letters here: https://drive.google.com/file/d/1iWAs5dpDrwQBOkII42mgYL9Xp4XVlZHv/view
BRIGHTLINE’S COUNTER PROPOSAL AND ITS DEFICIENCIES
Brightline has asked FRA to not include the three wildlife crossings as HSR Project mitigations. Instead, in February 2023, Brightline announced an agreement (“Brightline/Caltrans/CDFW Agreement”) with Caltrans and the California Department of Fish and Wildlife regarding the wildlife crossings. Though the press release stated this was an agreement “to build” the wildlife crossings, the text of the document signed by the parties states this is simply an agreement by the parties to “memorialize their commitment” to design and build these wildlife crossings. The Brightline/Caltrans/CDFW Agreement significantly benefits Brightline by shifting up to 75%-100% of the non-design costs (e.g. construction, permitting, operations and maintenance), estimated to be roughly $100 million, from the company to the State of California.
Presently, there is no legally binding agreement by Brightline, or the State of California, that guarantees the construction of three wildlife crossings. Meanwhile, Brightline is advancing its HSR Project, including requesting $3.75 billion in federal subsidies, of which it proposes to allocate not one dollar towards these wildlife crossings.
Despite leadership of Caltrans, California Department of Fish and Wildlife and Brightline repeatedly telling NGO stakeholders and federal and state elected officials that the Brightline/Caltrans/CDFW Agreement will ensure wildlife crossings will be constructed alongside or prior to construction of the HSR Project, the Administration’s “Fact Sheet” for the Wildlife Crossings Trailer Bill highlights lack of “sufficient statutory authority” and concerns that “the Brightline West and wildlife crossings projects are likely to conflict, creating delays for both projects, claims, and increases costs.”
AMENDMENTS REQUESTED
MAKE GOALS OF BRIGHTLINE/CALTRANS/CDFW AGREEMENT LEGALLY BINDING AND ENFORCEABLE
The Legislature should ensure the Wildlife Crossings Trailer Bill includes language that makes the intended goals of the Brightline/Caltrans/CDFW Agreement legally binding and enforceable. This is the most important issue to address.
The amendment should be structured to hold all parties accountable, so that the three wildlife crossings are constructed alongside or prior to the construction of the HSR Project. This would be achieved by directing Caltrans and the California Department of Fish and Wildlife to complete their responsibilities by certain dates and/or milestones. To hold Brightline accountable, the amendment should condition certain Caltrans approvals – which Brightline would need prior to construction – on the timely completion of responsibilities.
EXPAND FINDINGS TO HOLISTICALLY EXPLAIN PURPOSE
The findings are currently too narrow and should be expanded to include factual information explaining the need for these crossings, including that wildlife can and do currently cross the I-15, that the HSR Project will introduce a new impact that would permanently block at-grade crossings of I-15, and that this impact must be mitigated through the construction of wildlife overcrossings.
QUESTIONS & ADDITIONAL CONCERNS
As the Administration has not explained this bill to stakeholders, several questions remain unanswered. For example, in Section 2:
- Regarding 143.2.(a)(1)(A) and (B): This language, presenting options, suggests that the Administration does not know which pathway it will take and what factors will play into the decision-making. Considering that the Brightline/Caltrans/CDFW Agreement states that the “parties will endeavor to confirm funding, obtain all necessary entitlements and permits, and begin construction by the end of Q3 2023,” and we are nearing the end of Q2, it is worrisome that the pathway for working together is not known. (A) suggests Brightline will assist Caltrans on undefined implementation aspects of the wildlife crossings and (B) suggests Caltrans essentially will turn all facets of the wildlife crossings over to Brightline. Those are two very different scenarios. For example, (A) could mean that Caltrans builds the crossings at its own schedule, whereas (B) allows Brightline to have more control over the schedule and subject to the schedule of a $12 billion HSR Project that has been seeking financing and permitting for more than 20 years.
- Regarding 143.2(c)(1): The Administration uses the terms “quantifiable environmental benefits” and “best interest of the state” as criteria, but they are undefined. What metrics would Caltrans use to determine if the criteria are met
- Regarding 143.2(c)(3): including (A)-(I): How do these provisions compare to provisions that Caltrans currently uses when contracting with public agencies
- Regarding 143.2(c)(3)(B): This provision could allow state and/or federal public funds to be disbursed to Brightline for design work, but the Brightline/Caltrans/CDFW Agreement notes that Brightline is responsible for funding the design work. In response to criticisms that Brightline is not contributing direct funding towards construction, Brightline claims that its significant financial contribution is in-kind in the form of design work. This provision should be amended to ensure public funds are not used to cover costs and activities that Brightline is supposed to cover.
- Regarding 143.2(d): The Administration, through the Brightline/Caltrans/CDFW Agreement, claims it knows where monetary contributions are coming from, specifically state and possibly federal sources, and where in-kind contributions are coming from, specifically Brightline. The “including but not limited to” language expands the funding sources and is unnecessary.
- Regarding 143.2(d)(2): This provision includes language that would authorize philanthropic funds to be used towards this effort, which is completely inappropriate for this specific issue, and unnecessary for the reason stated in the prior bullet. Philanthropy has no place in this effort where a project proponent (Brightline) is creating this new significant impact, yet is not providing monetary contributions (e.g. Brightline is requesting $3.75 billion in federal subsidies, of which it proposes to use not one dollar for these wildlife crossings). California has limited public funds and a very long list of wildlife crossing priorities across the state that, unlike this situation, do not have a responsible party proposing the impacts right before our eyes. Philanthropy should be used for those priorities.
- Regarding 143.2(e): This timeframe for entering into a contracting agreement raises a red flag. The Brightline/Caltrans/CDFW Agreement outlines a goal to start construction of the wildlife crossings by the end of Q3 2023 (Sept 30, 2023), yet this proposed legislation allows an agreement to be entered into up untill January 1, 2025, suggesting that construction may not occur until Q1 2025. If there is such an emergency here that the Administration is proposing a Trailer Bill, and since the Administration is telling stakeholders that it plans to have shovels in the ground on the wildlife crossings by the end of Q3 2023, then any contracting agreement needs to be entered into by Q3 2023 so the proposed schedule stays on track.
Thank you for your consideration.
Sincerely,
| Eric Hanson, Co-Chair & Policy Lead, California Chapter Backcountry Hunters & Anglers Kevin Emmerich, Founder Basin and Range Watch Aimee J. Byard, Associate Director/Biologist Bighorn Institute Fred Harpster, President Black Brant Group Colin Barrows, Cofounder CactusToCloud Institute Chriss Bowles, President California Bowmen Hunters/State Archery Association Don Martin, President California Chapter of the Wild Sheep Foundation Rick Travis, Legislative Director California Rifle & Pistol Association Linda Castro, Assistant Policy Director California Wilderness Coalition Neal Desai, Senior Program Director National Parks Conservation Association Bob Przeklasa, Ph.D., Executive Director Native American Land Conservancy Gary F. Brennan, President San Diego County Wildlife Federation John D. Wehausen, Ph.D., President Sierra Nevada Bighorn Sheep Foundation Frazier Haney, Executive Director The Wildlands Conservancy Steve Miller, President Tulare Basin Wetlands Association | Ileene Anderson, Public Lands Deserts Director Center for Biological Diversity Mike Murray, Chair Coalition to Protect America’s National Parks Sendy Hernández Orellana Barrows, Conservation Program Manager Council of Mexican Federations in North America Pamela Flick, California Program Director Defenders of Wildlife Ed LaRue, Conservation Chair Desert Tortoise Council Jazzari Taylor, MPA Policy Advocate Latino Outdoors Chris Clarke, Board President Mojave National Preserve Conservancy Steve Bardwell, President Morongo Basin Conservation Association Brent Lyles, Executive Director Mountain Lion Foundation |