Amended in Senate August 1, 2016

Amended in Senate June 22, 2016

Amended in Assembly May 31, 2016

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 Chapter 9 (commencing with Section 1850) to Division 2 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. The California Endangered Species Act 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. Existing law prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing certain material where it may pass into any river, stream, or lake, without first notifying the department of that activity, and entering into a lake or streambed alteration agreement if required by the department to protect fish and wildlife resources.

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 an initial period of up to 10 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, that measurably advance the conservation objectives of an approved framework and that meet other specified requirements, to be used to create mitigation credits that may be used, within the framework area, to compensate for take or other adverse impacts of activities authorized pursuant to the California Endangered Species Act, to reduce adverse impacts to fish or wildlife resources, or both, from activities authorized pursuant to a lake or streambed alteration agreement to less than substantial, or to mitigate significant effects on the environment pursuant to the California Environmental Quality Act. To create these mitigation credits, the bill would require a person or entity to enter into a mitigation credit agreement with the department that meets specified requirements. The bill would prohibit the release of mitigation credits for use, sale, or transfer under a mitigation credit agreement unless the department approves the release in accordance with certain requirements. The bill would authorize the department to collect fees from a person or entity that proposes to enter into a mitigation credit agreement, and from a public agency that proposes a framework, to pay for all or a portion of the department’s costs relating to the mitigation credit agreement or proposed framework. The bill would authorize the department to adopt guidelines and criteria to aid in the implementation of the mitigation credit provisions and would exempt the adoption of these guidelines and criteria from the Administrative Procedure 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.  

Chapter 9 (commencing with Section 1850) is
added to Division 2 of the Fish and Game Code, to read:

 

Chapter  9. Regional Conservation Frameworks

 

1850.  

(a) The Legislature finds and declares that it would be
beneficial to identify species and habitat conservation initiatives
at a regional scale, including actions needed to address the impacts
of climate change and other wildlife stressors, in order to guide
voluntary investments in conservation, infrastructure planning,
sustainable communities strategies, and compensatory mitigation
for impacts to ecological resources, including impacts to threatened
and endangered species, other sensitive species, natural
communities, ecological processes, and wildlife corridors.

(b) The purpose of this chapter is to promote the voluntary
conservation of natural resources, including biodiversity and
ecological processes, and to enhance resiliency to climate change
and other threats. In order to further this goal, it is the policy of
the state to encourage voluntary mechanisms to conserve biological
and other ecological resources and to identify conservation actions,
including actions needed to promote resiliency to the impacts of
climate change and other stressors to species and habitat.

(c) It is further the policy of the state to encourage voluntary
mechanisms to identify and implement advance mitigation actions
that do the following:

(1) Can be used to compensate for project impacts, including,
but not limited to, infrastructure and renewable energy projects,
more efficiently.

(2) Are effective ecologically.

(3) Will help to conserve regionally important biological and
other ecological resources.

(d) In enacting this chapter, it is the intent of the Legislature to
promote conservation planning that identifies species and habitat
conservation needs, including actions needed to promote resiliency
to the impacts of climate change and other stressors. It is further
the intent of the Legislature to create nonregulatory mechanisms
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.

(e) In enacting this chapter, it is not the intent of the Legislature
to prescribe or prohibit land uses, establish land use designations,
or to affect the land use authority of any public agency.

1851.  

For purposes of this chapter:

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

(b) “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 focal
species and help to achieve biological goals and objectives for
those focal species.

(c) “Conservation easement” means a perpetual conservation
easement that complies with Chapter 4 (commencing with Section
815) of Title 2 of Part 2 of Division 2 of the Civil Code.

(d) “Focal species” means native species within a regional
conservation framework area that are analyzed in the framework
and will benefit from conservation actions set forth in the
framework.

(e) “Habitat enhancement” means an action to improve the
quality of wildlife habitat, or to address risks or stressors to
wildlife, that has long-term durability but 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. If a habitat
enhancement is used to create one or more mitigation credits
pursuant to this chapter, long-term durability means that the habitat
enhancement will remain in effect for at least as long as the impact
that is being mitigated.

(f) “Performance-based milestones” means specifically identified
steps in the implementation of a conservation action or habitat
enhancement, such as site protection, initiating implementation,
completing implementation, or achieving performance standards.

(g) “Performance standards” means observable or measurable
physical or biological attributes that are used to determine if a
conservation action or habitat enhancement has met its objectives.

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

(1) Recording a conservation easement, in a form approved in
advance in writing by the department, that prevents development,
prohibits inconsistent uses, and ensures that habitat for focal species
is maintained.

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

(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.

1852.  

(a) The department may approve a regional conservation
framework pursuant to this chapter. 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 inform actions that would advance the conservation of focal
species, habitat, and other natural resources and to provide
voluntary guidance for one or more of the following:

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

(2) Investments in ecological 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) Important habitat, and other natural and seminatural resource
conservation elements within the framework area, including, but
not limited to, habitat connectivity and existing protected areas,
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 focal
species and 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, federal
habitat conservation plan, state or federal recovery plan, or other
approved conservation strategy 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 the framework’s focal species.

(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.

(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) Use standard or prevalent vegetation classifications and
standard ecoregional classifications for terrestrial and aquatic data
to enable and promote consistency among regional conservation
assessments throughout California.

(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) 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 an Internet
Web portal and that would allow stakeholders to generate queries
of conservation values within the region.

1853.  

(a) The department may prepare or approve a regional
conservation framework, or approve the framework with
amendments, for an initial period of up to 10 years after finding
that the framework meets the requirements of Section 1852. The
department may extend the duration of an approved regional
conservation framework for additional periods of up to 10 years
after finding that the framework continues to meet the requirements
of Section 1852.

(b) It is the intent of this chapter 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 proposed draft framework early in the process of preparing it
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. If preparation of a regional
conservation framework was initiated before January 1, 2017, the
public meetings required under this section may be held after
January 1, 2017, if they are held at least 30 days before the
framework is submitted to the department for approval.

(2) At least 30 days before holding public meetings to distribute
information about the development of a draft regional conservation
framework, a public agency proposing a framework shall provide
notice of the regional conservation framework public meetings as
follows:

(A) On the public agency’s Internet Web site and any relevant
LISTSERV.

(B) To each county or city within or adjacent to the regional
conservation framework area.

(C) To each public agency, organization, or individual who has
filed a written request for the notice.

(3) At least 60 days before submitting a draft regional
conservation framework to the department for approval, the public
agency proposing the framework shall notify the board of
supervisors in each county within the geographical scope of the
framework and provide the board of supervisors with an
opportunity to submit written comments.

(4) After a draft regional conservation framework is submitted
to the department for approval, the department shall have 30 days
within which to deem the draft regional conservation framework
complete or to explain to the public agency submitting the
framework what is needed to complete the framework. 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.

(e) The department shall require the use of consistent metrics
that incorporate both the area and quality of habitat and other
natural resources in relation to a regional conservation framework’s
conservation objectives to measure the net change resulting from
the implementation of conservation actions and habitat
enhancements.

1854.  

(a) Regional conservation frameworks shall not affect
the authority or discretion of any public agency, except as
specifically provided in this chapter. Nothing in this chapter
increases or decreases the authority or jurisdiction of the
department regarding any land use, species, habitat, area, resource,
plan, process, or corridor.

(b) The approval or existence of a regional conservation
framework or mitigation credit agreement pursuant to this chapter
does not do any of the following:

(1) Modify in any way the standards for issuance of incidental
permits or concurrence determinations pursuant to Section 2081
or 2080.1, issuance of take authorizations pursuant to Section 2835,
or the issuance of lake or streambed alteration agreements pursuant
to Section 1602.

(2) Establish a presumption under the California Environmental
Quality Act (Division 13 (commencing with Section 21000) of
the Public Resources Code) that the regional conservation
framework provides substantial evidence in connection with any
determination of whether a proposed project may or may not result
in significant environmental effects and does not in any way limit
a lead agency’s or responsible agency’s discretion to determine,
based on project-specific information, whether a proposed project
may or may not result in significant environmental effects.

(3) Prohibit or authorize any project or project impacts.

(4) Create a presumption or guarantee that any proposed project
will be approved or permitted, or that any proposed impact will
be authorized, by any state or local agency.

(5) Create a presumption that any proposed project will be
disapproved or prohibited, or that any proposed impact will be
prohibited, by any state or local agency.

(6) Alter or affect, or create additional requirements for, the
general plan of the city, county, or city and county, in which it is
located.

begin delete

(7) Have a binding or mandatory regulatory effect on private
landowners or project proponents.

end delete

1855.  

(a) A conservation action or habitat enhancement that
measurably advances the conservation objectives of an approved
regional conservation framework may be used to create mitigation
credits that can be used to compensate for impacts to species,
habitat, and other natural resources, as provided in this section.
To be used to create these mitigation credits, a conservation action
or habitat enhancement shall be implemented successfully in
advance of the impacts. The requirements of this section apply
only to the generation of mitigation credits under mitigation credit
agreements pursuant to this section.

(b) For a conservation action or habitat enhancement identified
in a regional conservation framework to be used to create
mitigation credits pursuant to this section, the regional conservation
framework shall include, in addition to the requirements of Section
1852, 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 tracking the progress of, and evaluating the
effectiveness of, conservation actions and habitat enhancements
identified in the framework in offsetting identified threats to focal
species and in achieving 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 at least once every five years to incorporate the best
available scientific information and analyses.

(c) A mitigation credit created in accordance with an approved
regional conservation framework may be used for the following:

(1) To compensate for take or other adverse impacts of activities
authorized pursuant to Chapter 1.5 (commencing with Section
2050) of Division 3 within the regional conservation framework
area.

(2) To reduce adverse impacts to fish or wildlife resources, or
both, from activities authorized pursuant to Chapter 6 (commencing
with Section 1600) within the regional conservation framework
area to less than substantial.

(3) To mitigate significant effects on the environment within
the regional conservation framework area pursuant to the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code) and Guidelines for
Implementation of the California Environmental Quality Act
(Chapter 3 (commencing with Section 15000) of Division 6 of
Title 14 of the California Code of Regulations).

(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) To create mitigation credits pursuant to this section, a person
or entity, including a state or local agency, shall enter into a
mitigation credit agreement with the department. 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, sell, or
otherwise transfer the mitigation credits 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 a draft mitigation credit agreement
to the department for its review, revision, and approval. The
department may enter into a mitigation credit agreement if it
determines that the mitigation credit agreement does all of the
following:

(1) Provides contact information for, and establishes the
qualifications of, the person or entity entering into the agreement,
the entity that will manage the site of the conservation action or
habitat enhancement, and any contractors or consultants.

(2) Fully describes the proposed conservation actions or habitat
enhancements.

(3) Identifies the location of the conservation actions or habitat
enhancements, including a location map, address, and size of the
site where the proposed conservation action or habitat enhancement
will be implemented.

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

(5) Explains how the mitigation credits will be created,
including, but not limited to, information regarding proposed
ownership arrangements, long-term management strategy, and any
phases of implementation.

(6) Includes a natural resources evaluation that documents biotic
and abiotic baseline conditions, including past, current, and
adjacent land uses, vegetation types, species information,
topography, hydrology, and soil types.

(7) Identifies public lands and permanently protected lands in
the vicinity of the conservation actions or habitat enhancements.

(8) Fully describes the proposed type and quantity of mitigation
credits and the supporting rationale.

(9) Explains how the proposed conservation actions or habitat
enhancements will measurably advance conservation objectives
of the regional conservation framework that have not yet been
achieved.

(10) Identifies 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. The net ecological
gain from the implementation of conservation actions and habitat
enhancements shall be reported using consistent metrics that
measure the increment of gain in the area and quality of habitat or
other natural resource values compared to baseline conditions, and
measures the increment of gain in relation to the regional
conservation framework’s conservation objectives.

(11) Describes the proposed landownership of the site or sites
of the conservation actions or habitat enhancements.

(12) Includes a template conservation easement for the sites of
any conservation action and an explanation of how the long-term
durability of the sites of any habitat enhancements will be ensured.

(13) Ensures that the implementation of the conservation action
or habitat enhancement, including long-term protection and
management of the site, will be funded in accordance with Chapter
4.6 (commencing with Section 65965) of Division 1 of Title 7 of
the Government Code.

(14) Includes a template monitoring and long-term adaptative
management plan.

(15) Explains the terms and conditions under which the proposed
mitigation credits may be sold or otherwise transferred and how
the proposed mitigation credits will be accounted for, including
the specific methods proposed for reporting and maintaining a
record of credit creation, release, and use, sale, or transfer.

(16) Includes enforcement provisions.

(17) Ensures that, for each site on which the conservation actions
or habitat enhancements will be implemented, the following shall
be prepared and submitted to the department for review for
adequacy and approval prior to implementation:

(A) Site-specific conservation objectives of the conservation
actions or habitat enhancements and how they reflect a measurable
advancement of the conservation objectives of the regional
conservation framework.

(B) Preliminary natural resources surveys that document biotic
and abiotic baseline conditions, including past, current, and
adjacent land uses, vegetation types, species information,
topography, hydrology, and soil types.

(C) For conservation actions, the conservation easement that
will be used to permanently protect the site, and for habitat
enhancements, the instrument that will be used to ensure their
long-term durability.

(D) A management plan that includes the short-term and
long-term management actions necessary to ensure that the
conservation actions or habitat enhancements achieve their
site-specific conservation objectives.

(E) If mitigation credits are proposed to be created from habitat
enhancements or conservation actions that include restoration of
ecological resources, detailed plans, including as-built designs and
ecological performance standards.

(F) A property analysis record or other comparable economic
analysis of the funding necessary to support site-specific
maintenance activities, such as monitoring and reporting, in
perpetuity.

(G) The sources for, and the terms under which, the endowment
for long-term protection, management, and enforcement will be
funded.

(H) A current preliminary report covering the site of the
conservation actions or habitat enhancements that identifies the
owner of the fee simple title and shows all liens, easements, and
other encumbrances and depicts all relevant property lines,
easements, dedications, and other features.

(I) A declaration of whether or not the proposed site has been
or is being used as mitigation, is designated or dedicated for park
or open space use, or designated for purposes that may be
inconsistent with habitat preservation.

(J) Details of any public funding received for acquisition or
restoration of, or other purposes related to, the proposed site.

(K) A phase I environmental site assessment of the site dated
not more than six months prior to the date of submission to the
department. This assessment shall be performed in accordance
with the ASTM International Standard E1527-05 “Standard
Practice for Environmental Site Assessments: Phase I
Environmental Site Assessment Process” or any successive ASTM
International standard active at the time of the assessment.

(18) Includes a proposed credit ledger and credit release
schedule that meets the requirements of subdivision (f).

(19) Includes any other information, analysis, and legal or
financial assurances of implementation as the department deems
necessary or appropriate.

(f) (1) The release of mitigation credits for use, sale, or transfer
under a mitigation credit agreement shall require the department’s
approval in accordance with this subdivision.

(2) The release of mitigation credits shall be tied to
performance-based milestones and achievement of ecological
performance standards. The credit release schedule for each
mitigation credit agreement shall reserve a substantial share of the
total credits for release after those ecological performance standards
are fully achieved.

(3) The terms of the credit release schedule shall be specified
in the mitigation credit agreement. When conservation actions and
habitat enhancements are implemented and meet the
performance-based milestones specified in the credit release
schedule, credits shall be created in accordance with the credit
release schedule. If a conservation action or habitat enhancement
does not meet those performance-based milestones, the department
may suspend the release of credits, reduce the number of credits,
or otherwise modify the credit release schedule accordingly.

(4) In order for mitigation credits to be released, the person or
entity that has entered into a mitigation credit agreement shall
demonstrate to the department that the appropriate
performance-based milestones for credit release have been met.
The department shall determine whether the milestones have been
met and the credits may be released.

(g) Nothing in this chapter 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).

(h) 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. Mitigation credits created pursuant to this
section may be used for covered activities under an approved
natural community conservation plan only in accordance with the
requirements of the plan.

begin insert

(i) The department shall make project mitigation credit and
release information publicly available on the department’s Internet
Web site.

end insert

1856.  

The department may collect fees from a person or entity
that proposes to enter into a mitigation credit agreement, and from
a public agency that proposes a regional conservation framework,
to pay for all or a portion of the department’s costs relating to the
mitigation credit agreement or proposed framework.

1857.  

The department may adopt guidelines and criteria to aid
in the implementation of Section 1855. Chapter 3.5 (commencing
with Section 11340) of Part 1 of Division 3 of Title 2 of the
Government Code does not apply to the development, adoption,
or amendment of guidelines or criteria pursuant to this section.
These guidelines and criteria shall be posted on the department’s
Internet Web site.