Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2087

Introduced by Assembly Member Levine

February 17, 2016

An act to add Article 4 (commencing with Section 2090) to Chapter 1.5 of Division 3 of the Fish and Game Code, relating to fish and wildlife.

LEGISLATIVE COUNSEL’S DIGEST

AB 2087, as amended, Levine. Regional conservation frameworks.

Existing law establishes the Department of Fish and Wildlife in the Natural Resources Agency. Under existing law, the department has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable populations of those species. begin insert The California Endangered Species Act end insert begin insert prohibits the taking of an endangered, threatened, or candidate species, except as specified. Under the act, the department may authorize the take of listed species if the take is incidental to an otherwise lawful activity and the impacts are minimized and fully mitigated. end insert

begin insert

This bill would authorize the department, or any other public agency, to propose a regional conservation framework that would be required to contain specified information, including a regional conservation assessment. The bill would authorize the department to approve a regional conservation framework, or approve the framework with amendments, for a period of up to 5 years after certain public meetings and a public comment period regarding the proposed framework have been held and after it finds that the framework meets certain requirements. The bill would authorize a conservation action, as defined, and a habitat enhancement, as defined, implemented in accordance with an approved framework to be used to fulfill, in whole or in part, compensatory mitigation requirements set forth in an incidental take permit issued by the department pursuant to the California Endangered Species Act or compensatory mitigation requirements established by any state or local agency pursuant to the California Environmental Quality Act or any regulatory program within the agency’s jurisdiction, as prescribed. The bill would also authorize a conservation action or habitat enhancement implemented in accordance with an approved framework to be used to create mitigation credits under a written mitigation credit agreement between the department and the person or entity.

end insert begin delete

This bill would authorize the department to prepare or approve, and to adopt and amend, a regional conservation framework that identifies wildlife and habitat conservation needs, guides investments in conservation, infrastructure planning, and compensatory mitigation for impacts to natural resources, and informs infrastructure planning, land use planning, and the design and implementation of public and private projects that affect the condition of species and resources under the jurisdiction of the department. The bill would authorize a conservation action implemented in accordance with an approved regional conservation framework, to be used to fulfill, in whole or in part, compensatory mitigation requirements for impacts to covered species, habitat, and other natural resources, as provided.

end delete

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.  

Article 4 (commencing with Section 2090) is
added to Chapter 1.5 of Division 3 of the Fish and Game Code, to
read:

 

Article 4.  Regional Conservation Frameworks

 

2090.  

begin insert (a) end insert begin insert   end insert The Legislature finds and declares that there is a
need to identify wildlife and habitat conservation needs at a
regional scale, including actions needed to address the impacts of
climate change and other wildlife stressors, in order to guide
investments in conservation, infrastructure planning, begin insert sustainable
communities strategies, end insert and compensatory mitigation for impacts
to natural resources, including impacts to threatened and
endangered species, other sensitive species, natural communities,
ecological processes, and wildlife corridors.

begin insert

(b) The purpose of this article is to promote the conservation
of natural resources, including biodiversity and ecological
processes, in order to maintain the continued viability of biological
communities and to enhance their resiliency to climate change
and other threats. In order to further this goal, it is the policy of
the state to conserve biological and other natural resources and
to identify natural resource conservation needs, including actions
needed to promote resiliency to the impacts of climate change and
other wildlife and fisheries stressors.

end insert begin insert

(c) In enacting this article, it is the intent of the Legislature to
promote conservation planning that identifies wildlife, fishery,
and habitat conservation needs, including actions needed to
promote the resiliency to the impacts of climate change and other
wildlife stressors, in order to guide investments in conservation,
infrastructure and land use planning, and compensatory mitigation
for impacts to natural resources, including impacts to threatened
and endangered species, other sensitive species, natural
communities, ecological processes, and connectivity.

end insert

begin insert

begin insert 2091. end insert   

For purposes of this article:

(a) “Areas of Conservation Emphasis” means the biodiversity
analysis completed by the department in 2010, or the latest update
of that analysis.

(b) “California Essential Habitat Connectivity Project” means
the final report prepared jointly by the department and the
Department of Transportation in February 2010.

(c) “Conservation action” means the permanent protection of
habitat, and restoration and management actions on permanently
protected habitat that help to offset the impacts of threats to
covered species and help to achieve biological goals and objectives
for those covered species. A conservation action may include, but
is not limited to, a conservation action implemented as part of a
natural community conservation plan approved by the department
pursuant to Chapter 10 (commencing with Section 2800) of
Division 3, purchase of credits from a conservation or mitigation
bank approved by the department pursuant to Chapter 7.9
(commencing with Section 1797) of Division 2, or purchase of
credits from an in-lieu fee program approved by the department.

(d) “Covered species” means those species within the covered
area that are both of the following:

(1) Endangered, threatened, or candidate species pursuant to
this chapter or other sensitive species.

(2) Analyzed within and protected by conservation actions set
forth within the framework.

(e) “Habitat enhancement” means an action to improve the
quality of wildlife habitat, or to address risks or stressors to
wildlife, that does not involve land acquisition or the permanent
protection of habitat, such as improving in-stream flows to benefit
fish species, enhancing habitat connectivity, or invasive species
control or eradication. A habitat enhancement may include, but
is not limited to, a habitat enhancement implemented as part of a
natural community conservation plan approved by the department
pursuant to Chapter 10 (commencing with Section 2800) of
Division 3, purchase of credits from a conservation or mitigation
bank approved by the department pursuant to Chapter 7.9
(commencing with Section 1797) of Division 2, or purchase of
credits from an in-lieu fee program approved by the department.

(f) “Hydrologic Unit Code Watershed” means a watershed as
described and delineated by the United States Geological Survey.

(g) “Permanently protect” means doing both of the following:

(1) Recording a conservation easement, in a form approved in
advance in writing by the department, or establishing perpetual
protection of land in a manner substantially similar to a
conservation easement and approved in advance in writing by the
department, that prevents development, prohibits inconsistent uses,
and ensures that habitat for covered species is maintained.

(2) Providing secure, perpetual funding for management of the
land.

(h) “Pressure” means an anthropogenic or natural driver that
could significantly change ecological conditions. Pressures may
be positive or negative depending on intensity, timing, and
duration.

(i) “Sensitive species” means any special status species
identified by a state or federal agency, and any species for which
the department has determined that listing as endangered,
threatened, or a candidate is reasonably foreseeable within the
term of the framework.

(j) “Stress” and “stressor” mean a degraded ecological
condition resulting directly or indirectly from negative impacts of
pressures, for example, habitat fragmentation.

(k) “USDA Ecological Subsection” means a subsection as
described and delineated by the United States Department of
Agriculture, the Forest Service and the Natural Resource
Conservation Service.

end insert begin insert

begin insert 2092. end insert   

(a) The department may approve a regional conservation
framework pursuant to this article. A regional conservation
framework may be proposed by the department or any other public
agency.

(b) The purpose of a regional conservation framework shall be
to guide one or more of the following in ways that will enhance
the long-term viability of native species, habitat, and other natural
resources:

(1) Identification of wildlife and habitat conservation needs,
including actions needed to address the impacts of climate change
and other wildlife stressors.

(2) Investments in natural resource conservation.

(3) Infrastructure planning.

(4) Identification of conservation priorities for land use
planning.

(5) Identification of priority locations for compensatory
mitigation for impacts to species and natural resources.

(c) A regional conservation framework shall include all of the
following:

(1) An explanation of the conservation purpose of and need for
the framework.

(2) The geographic area of the framework and rationale for the
selection of the area.

(3) The focal species included in, and their current known or
estimated status within, the framework.

(4) Other important species, habitat, and other natural and
seminatural resource conservation elements within the framework
area, and an explanation of the criteria, data, and methods used
to identify those important conservation elements.

(5) A summary of historic, current, and projected future
stressors and pressures in the framework area on the focal species,
habitat, and other natural resources.

(6) Conservation goals and measurable objectives for the
important conservation elements identified in the framework that
address or respond to the identified stressors and pressures.

(7) Conservation actions, including a description of the general
amounts and types of habitat that, if restored or enhanced and
permanently protected, could achieve the conservation goals and
objectives.

(8) A description of how the conservation actions and habitat
enhancements were prioritized and selected in relation to the
conservation goals and objectives.

(9) An explanation of how the framework is consistent with or
complements any natural community conservation plan, habitat
conservation plan, recovery plan, and other conservation or
recovery plan that overlaps with the framework area.

(10) A description of how the framework’s conservation goals
and objectives provide for adaptation opportunities against the
effects of climate change for species covered by the framework.

(11) Incorporation and reliance on, and citation of, the best
available scientific information, and a brief analysis of gaps in
relevant scientific information.

(12) A regional conservation assessment that provides context
at an ecoregional or subecoregional scale for the development of
the framework. If a regional conservation assessment has already
been prepared, the regional conservation framework may
incorporate the assessment by reference, and shall update or
supplement the assessment as necessary for the framework. A
regional conservation assessment shall do all of the following:

(A) Identify and summarize relevant regional pressures,
stressors, and conservation priorities, including priority
conservation areas and habitat connectivity values, included in
all of the following:

(i) Conservation plans, such as the State Wildlife Action Plan
and natural community conservation plans.

(ii) Analyses designed to identify areas of high biological
diversity, such as the Areas of Conservation Emphasis.

(iii) Analyses designed to identify areas of high value for habitat
connectivity, such as the California Essential Habitat Connectivity
Project.

(B) Identify the best available scientific information and
analyses, including geospatial information regarding the
distribution of species and natural communities.

(C) Use spatial analysis to identify ecological relationships
between existing protected areas and priority conservation areas.

(D) Enable and promote consistency among regional
conservation assessments throughout California by using standard
or prevalent vegetation classifications and standard ecological
subdivision classifications for terrestrial and aquatic data.

(E) Be consistent with approved natural community conservation
plans, regional habitat conservation plans, and recovery plans
within the ecoregion or subecoregion included in the assessment.

(F) Briefly assess the climate change vulnerability of identified
priority conservation areas.

(G) Compile input and summary priority data in a consistent
format that could be uploaded for interactive use in a Web portal
and would allow stakeholders to generate queries of conservation
values in subregions within the region.

end insert begin insert

begin insert 2093. end insert   

(a) The department may prepare or approve a regional
conservation framework, or approve the framework with
amendments, for a period of up to five years after finding that the
framework meets the requirements of Section 2092.

(b) The level of detail necessary for each regional conservation
framework shall be at the discretion of the department and shall
be assessed independently for each framework, taking into account
the requirements of Section 2092 and the intended uses and scope
of the framework. It is the intent of this article to establish general
guidelines and requirements that allow sufficient flexibility to
develop each regional conservation framework based on the best
available information regarding the framework area.

(c) (1) Prior to submitting a draft regional conservation
framework to the department for approval, a public agency
proposing a framework shall hold at least two public meetings to
allow interested persons and entities to receive information about
the draft framework and to have an adequate opportunity to
provide written and oral comments. At least one of the public
meetings shall be held at a location within the framework area.

(2) Within 30 days of deeming a draft regional conservation
framework complete, the department shall make the draft
framework available to the public on its Internet Web site for
review and comment for a period of at least 30 days.

(d) The department shall make all approved regional
conservation frameworks, including all updates to scientific
information and analyses used in a regional conservation
framework, available on its Internet Web site.

end insert begin insert

begin insert 2094. end insert   

(a) A conservation action or habitat enhancement that
measurably advances the conservation objectives of an approved
regional conservation framework may be used to fulfill, in whole
or in part, compensatory mitigation requirements for impacts to
species, habitat, and other natural resources, as provided in this
section. To be used for compensatory mitigation, a conservation
action or habitat enhancement shall be implemented in advance
of the impacts.

(b) For a conservation action or habitat enhancement identified
in a regional conservation framework to be used for compensatory
mitigation purposes pursuant to this section, the regional
conservation framework shall include, in addition to the
requirements of Section 2092, all of the following:

(1) An adaptive management and monitoring strategy for
conserved habitat and other conserved natural resources.

(2) A process for updating the scientific information used in the
framework, and for evaluating the effectiveness of conservation
actions and habitat enhancements identified in the framework
offsetting identified threats to focal species and to achieve the
framework’s biological goals and objectives, at least once every
five years.

(3) Identification of a public or private entity that will be
responsible for the periodic evaluation and for updating the
framework periodically to incorporate the best available scientific
information and analyses.

(c) A conservation action or habitat enhancement implemented
in accordance with an approved regional conservation framework
may be used for the following:

(1) To fulfill, in whole or in part, compensatory mitigation
requirements set forth in a permit issued pursuant to subdivision
(b) of Section 2081 if the department determines that the
conservation action or habitat enhancement meets the requirements
of Section 2081.

(2) To fulfill, in whole or in part, compensatory mitigation
requirements established by any state or local agency pursuant to
the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code)
or any regulatory program within the state or local agency’s
jurisdiction, if the agency determines that the conservation action
or habitat enhancement meets California Environmental Quality
Act requirements for mitigation for the potential environmental
impacts of a proposed project, as identified in an environmental
impact report or a mitigated negative declaration prepared for
the project.

(d) The department shall ensure the long-term durability of a
habitat enhancement. If a habitat enhancement is used to provide
compensatory mitigation, the habitat enhancement shall remain
in effect for at least as long as the impact that is being mitigated.

(e) A conservation action or habitat enhancement implemented
in accordance with an approved regional conservation framework
may be used to create mitigation credits under a written mitigation
credit agreement between the department and the person or entity,
including a state or local agency, that implements the conservation
action or habitat enhancement. The mitigation credit agreement
shall establish the type and number of mitigation credits created
by the conservation action or habitat enhancement and the terms
and conditions under which the mitigation credits may be used.
The person or entity may create and use, or sell or otherwise
transfer, the mitigation credits to offset environmental impacts,
upon department approval that the credits have been created in
accordance with the agreement. To enter into a mitigation credit
agreement with the department, a person or entity shall submit
the following to the department for its review, revision, and
approval:

(1) The person or entity’s contact information.

(2) A description of the proposed conservation action or habitat
enhancement.

(3) A location map, address, and size of the site where the
proposed conservation action or habitat enhancement will be
implemented.

(4) Color aerial and ground-level photographs that reflect
current conditions on the site and surrounding properties.

(5) A draft of the proposed mitigation credit agreement that
includes an explanation of how the proposed conservation action
or habitat enhancement will be implemented and how the proposed
mitigation credits will be created and used, including all of the
following:

(A) The proposed type and quantity of mitigation credits and
the supporting rationale.

(B) A proposed service area defined by a USDA Ecological
Subsection or Hydrologic Unit Code Watershed unit.

(C) An explanation of how the proposed conservation action or
habitat enhancement is consistent with the regional conservation
framework, including how the action will help to achieve the
framework’s biological goals and objectives.

(D) Metrics or indicators by which the proposed conservation
action or habitat enhancement’s contribution to achieving the
framework’s conservation goals and objectives can feasibly be
measured with existing technology.

(E) The proposed landownership of the site of the conservation
action or habitat enhancement.

(F) How the site of the conservation action will be permanently
protected and managed in perpetuity, including, if applicable, a
draft conservation easement.

(G) How the implementation of the conservation action or
habitat enhancement, including long-term protection and
management of the site, will be funded.

(H) A draft of the long-term management plan for the site.

(I) A draft long-term monitoring and adaptive management plan
for the site.

(J) Drafts of habitat restoration plans and performance criteria,
if applicable.

(K) An explanation of how the proposed mitigation credits will
be accounted for, including the specific methods proposed for
reporting and maintaining records of credit creation, release, and
use, sale or transfer.

(6) Other information, analysis, and legal or financial
assurances of implementation as the department deems necessary
or appropriate.

(f) Nothing in this article is intended to limit or impose
additional conditions on the creation or sale of mitigation credits
by a conservation bank or mitigation bank approved by the
department pursuant to Chapter 7.9 (commencing with Section
1797) of Division 2.

(g) The creation of mitigation credits pursuant to this section
from a conservation action or habitat enhancement implemented
within the plan area of an approved natural community
conservation plan shall not duplicate or replace mitigation
requirements set forth in the natural community conservation plan
and shall require the advance written approval of the plan’s
implementing entity.

(h) The approval of a regional conservation framework pursuant
to this article does not authorize any project or project impacts,
nor does it create any presumption or guarantee that a proposed
project will be approved or permitted or that a proposed impact
will be authorized by any state or local agency.

end insert begin delete

2091.  

The department may prepare or approve, and may adopt
and amend, regional conservation frameworks to do all of the
following:

(a) Identify wildlife and habitat conservation needs, including
actions needed to address the impacts of climate change and other
wildlife stressors.

(b) Guide investments in conservation, infrastructure planning,
and compensatory mitigation for impacts to natural resources,
including impacts to threatened and endangered species, other
sensitive species, natural communities, ecological processes, and
wildlife corridors.

(c) Inform infrastructure planning, land use planning, and the
design and implementation of public and private projects that affect
the condition of species and resources under the jurisdiction of the
department.

2092.  

A regional conservation framework shall include both
of the following:

(a) A regional assessment that establishes conservation priorities
at a regional scale based on habitat, ecological processes, and
connectivity values.

(b) One or more implementation plans that establish
conservation goals and objectives based on a regional assessment
and identify implementation strategies to achieve some or all of
the goals and objectives. The purpose of an implementation plan
is to guide investments in conservation, infrastructure planning,
and compensatory mitigation for impacts to natural resources. An
implementation plan may cover some or all of the area included
in a regional assessment.

2093.  

(a) A conservation action implemented in accordance
with an approved regional conservation framework may be used
to fulfill, in whole or in part, compensatory mitigation requirements
for impacts to covered species and habitat, and other natural
resources, as provided in subdivision (b). To be used for
compensatory mitigation, the conservation action shall be
implemented in advance of the impacts.

(b) (1) A conservation action may be used to fulfill, in whole
or in part, compensatory mitigation requirements set forth in a
permit issued pursuant to subdivision (b) of Section 2081 if the
department determines that the conservation action provides
suitable mitigation for the impacts of taking authorized under the
permit.

(2)  A conservation action may be used to fulfill, in whole or
in part, compensatory mitigation requirements established by any
state or local agency pursuant to the California Environmental
Quality Act (Division 13 (commencing with Section 21000) of
the Public Resources Code), if the agency determines that the
conservation action provides suitable mitigation for the potential
environmental impacts of a proposed project, as identified in an
environmental impact report or a mitigated negative declaration
prepared for the project.

end delete