Amended in Senate August 16, 2016

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 begin delete framework that would be required end delete begin insert framework, in consultation with applicable local agencies that have land use authority, for the purpose of informing conservation actions and habitat enhancement actions that would advance the conservation of focal species and providing voluntary guidance for various activities. The bill would require the framework end insert to contain specified begin delete information, including end delete begin insert information and would authorize the framework to include end insert a regional conservation begin delete assessment. end delete begin insert assessment proposed by the department or any other public agency and approved by the department. end insert 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 begin delete certain public meetings end delete begin insert a public meeting end insert 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 begin delete action, as defined, end delete begin insert action end insert and a habitat begin delete enhancement, as defined, end delete begin insert enhancement action end insert that measurably advance the conservation objectives of an approved framework and that meet other specified begin delete requirements, end delete begin insert requirements end insert to be used to create mitigation begin delete credits that may end delete begin insert credits. The bill would authorize these mitigation credits to end insert be begin delete used, within the framework area, end delete begin insert used to fulfill compensatory mitigation requirements established under any state or federal environmental law, as determined by the applicable local, state, or federal regulatory agency, including compensatory mitigation requirements end insert 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 begin delete agreement or end delete begin insert agreement, end insert proposed begin delete framework. end delete begin insert framework, or proposed regional conservation assessment. end insert The bill would authorize the department to adopt guidelines and criteria to aid in the implementation of begin delete the mitigation credit end delete begin insert these end insert provisions and would exempt the adoption of these guidelines and criteria from the Administrative Procedure Act. begin insert The bill would require the department to submit a report regarding the implementation of these provisions to the Legislature on or before January 1, 2020. The bill would prohibit the department from approving a regional conservation framework or regional conservation assessment on or after January 1, 2020, and from entering into a mitigation credit agreement on or after January 1, 2020. end insert

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.

begin insert

(b) “Compensatory mitigation” means actions taken to fulfill,
in whole or in part, mitigation requirements under state or federal
law or a court mandate.

end insert begin delete

(b)

end delete

begin insert (c) end insert  “Conservation action” means begin delete 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 end delete begin insert an action to preserve or to restore ecological
resources, including habitat, natural communities, ecological
processes, and wildlife corridors, to protect those resources
permanently, and to provide for their perpetual management, so
as to end insert help to achieve begin insert one or more end insert biological goals and objectives
for begin delete those end delete begin insert one or more end insert focal species. begin insert Conservation actions may
include, but are not limited to, actions to offset impacts to focal
species. end insert

begin delete

(c)

end delete

begin insert (d) end insert  “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.

begin delete

(d)

end delete

begin insert (e) end insert  “Focal species” means begin delete native end delete begin insert sensitive end insert species within a
regional conservation framework area that are analyzed in the
framework and will benefit from conservation actions begin insert and habitat
enhancement actions end insert set forth in the framework.

begin delete

(e)

end delete

begin insert (f) end insert  “Habitat begin delete enhancement” end delete begin insert enhancement action” end insert 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. begin delete 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. end delete

begin delete

(f)

end delete

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

begin delete

(g)

end delete

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

begin delete

(h)

end delete

begin insert (i) end insert  “Permanently protect” means doing both of the following:

(1) Recording a conservation easement, in a form approved in
advance in writing by the department, begin insert or establishing perpetual
protection of land in a manner substantially similar to a
conservation easement and approved in advance in writing by the
department, end insert 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 begin insert legal end insert enforcement.

begin insert

(j) “Regional conservation assessment” means information and
analyses that document the important species, ecosystems,
ecosystem processes, protected areas, and linkages within an
ecoregion to provide the appropriate context for prioritized
conservation strategies and actions. Those assessments include
information critical to the identification of areas with greatest
probability for long-term ecosystem conservation success
incorporating cobenefits of ecosystem services, such as carbon,
water, and agricultural lands. A regional conservation assessment
may be used to provide context at an ecoregional or subecoregional
scale to assist with the development of a regional conservation
framework.

end insert begin insert

(k) “Regional conservation framework” means information and
analyses prepared pursuant to this chapter to inform conservation
actions and habitat enhancement actions that would advance the
conservation of focal species, habitat, and other natural resources
and to provide voluntary guidance for the identification of wildlife
and habitat conservation priorities, investments in ecological
resource conservation, infrastructure planning, identification of
conservation priorities for land use planning, or identification of
priority locations for compensatory mitigation for impacts to
species and natural resources. Regional conservation frameworks
are voluntary and do not create, modify, or impose regulatory
requirements or standards, prescribe or prohibit land uses,
establish land use designations, or affect the land use authority of
any public agency. The preparation and use of regional
conservation frameworks for this guidance is voluntary.

end insert begin insert

(l) “Regional level” means the geographic scale of relevant
ecologically defined units such as ecoregions.

end insert begin delete

(i)

end delete

begin insert (m) end insert  “Sensitive species” means any special status species
identified by a state or federal begin delete 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. end delete begin insert agency. end insert

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

begin delete agency. end delete begin insert agency, in consultation with local agencies that have land
use authority within the geographic scope of the regional
conservation framework. end insert

(b) The purpose of a regional conservation framework shall be
to inform begin insert conservation actions and habitat enhancement end insert actions
that would advance the conservation of focal species, begin delete habitat, and
other natural resources end delete begin insert including the ecological processes, natural
communities, and habitat connectivity upon which those focal
species depend, end insert 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 begin delete ecological end delete resource conservation.

(3) Infrastructure planning.

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

(5) Identification of priority begin delete locations end delete begin insert areas end insert 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 begin delete area. end delete begin insert area, together with a description of the
surrounding ecoregions and any adjacent protected habitat areas
or linkages that provide relevant context for the development of
the framework. end insert

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

(4) Important begin delete habitat, and other natural and seminatural end delete resource
conservation elements within the framework area, including, but
not limited to, begin insert important ecological resources and processes,
natural communities, habitat, end insert habitat begin delete connectivity end delete begin insert connectivity, end insert
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 begin delete resources. end delete begin insert resources, as identified in the best
available scientific information, including, but not limited to, the
State Wildlife Action Plan. end insert

begin insert

(6) Major water, transportation and transmission infrastructure
facilities, urban development areas, and county and city general
plan designations in the framework area.

end insert begin delete

(6)

end delete

begin insert (7) end insert  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

begin delete pressures. end delete begin insert pressures on focal species. end insert

begin delete

(7)

end delete

begin insert (8) end insert  Conservation actions, including a description of the general
amounts and types of habitat that, if begin insert preserved or end insert restored begin delete or
enhanced end delete and permanently protected, could achieve the
conservation goals and begin delete objectives. end delete begin insert objectives, and a description
of how the conservation actions and habitat enhancement actions
were prioritized and selected in relation to the conservation goals
and objectives. end insert

begin delete

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

end delete

(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.

begin insert

(10) A summary of mitigation banks and conservation banks
approved by the department or the United States Fish and Wildlife
Service that are located within the framework area or whose
service area overlaps with the framework area.

end insert begin delete

(10)

end delete

begin insert (11) end insert  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.

begin delete

(11)

end delete

begin insert (12) end insert  Incorporation and reliance on, and citation of, the best
available scientific begin delete information, and a brief analysis end delete begin insert information
regarding the framework area and the surrounding ecoregion,
including a brief description end insert of gaps in relevant scientific

begin delete information. end delete begin insert information, and use of standard or prevalent
vegetation classifications and standard ecoregional classifications
for terrestrial and aquatic data to enable and promote consistency
among regional conservation frameworks throughout California. end insert

begin delete

(12) A regional conservation assessment that provides context
at an ecoregional or subecoregional scale for the development of
the framework. If

end delete

begin insert

begin insert 1853. end insert   

end insert begin insert

(a) The department may approve a regional conservation
assessment pursuant to this chapter. A regional conservation
assessment may be proposed by the department or any other public
agency. However, a regional conservation assessment is not
required for department approval of a regional conservation
framework.

end insert

begin insert (b) end insert begin insert   end insert begin insert If end insert a regional conservation assessment begin delete has already been
prepared, the end delete begin insert that encompasses the area of a proposed end insert regional
conservation framework begin delete may incorporate the assessment by
reference, and shall update or supplement the assessment as
necessary for the framework. A end delete begin insert has already been approved by the
department, the framework shall explain how it has incorporated
the assessment information and analysis. end insert

begin insert (c) end insert begin insert   end insert begin insert A end insert regional conservation assessment shall do all of the
following:

begin delete

(A)

end delete

begin insert (1) end insert  Identify and summarize relevant regional begin delete pressures, end delete
begin insert pressures and end insert stressors, begin insert including climate change vulnerability, end insert
and conservation priorities, including priority conservation areas
and habitat connectivity values, included in all of the following:

begin delete

(i)

end delete

begin insert (A) end insert  Conservation plans, such as the State Wildlife Action Plan
and begin insert approved end insert natural community conservation plans.

begin delete

(ii)

end delete

begin insert (B) end insert  Analyses designed to identify areas of high biological
diversity, such as the Areas of Conservation Emphasis.

begin delete

(iii)

end delete

begin insert (C) end insert  Analyses designed to identify areas of high value for habitat
connectivity.

begin delete

(B)

end delete

begin insert (2) end insert  Identify the best available scientific information and
analyses, including geospatial information regarding the
distribution of species and natural communities.

begin delete

(C)

end delete

begin insert (3) end insert  Use spatial analysis to identify ecological relationships
between existing protected areas and priority conservation areas.

begin delete

(D)

end delete

begin insert (4) end insert  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.

begin delete

(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.

end delete begin delete

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

end delete begin delete

(G)

end delete

begin insert (5) end insert  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 begin delete region. end delete begin insert framework area. end insert

begin insert

(d) (1) A draft regional conservation assessment may be
submitted to the department with a draft regional conservation
framework or separately.

end insert begin insert

(2) If submitted with a draft regional conservation framework,
the draft regional conservation assessment shall be included in
the review process set forth in subdivision (c) of Section 1854.

end insert begin insert

(3) If submitted separately, the department shall have 30 days
within which to deem the draft regional conservation assessment
complete or to explain in writing to the public agency submitting
the assessment what is needed to complete the assessment. Within
30 days of deeming a draft regional conservation assessment
complete, the department shall make the draft assessment available
to the public on its Internet Web site for review and comment for
a period of at least 30 days, following which the department may
approve the assessment, approve it with amendments, or
disapprove it.

end insert

begin delete 1853. end delete

begin insert 1854. end insert   

(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 begin delete general guidelines
and end delete requirements that begin delete allow end delete begin insert provide end insert sufficient flexibility to develop
each regional conservation framework based on the best available
information regarding the framework area.

(c) (1)  begin delete Prior to submitting a draft regional conservation
framework to the department for approval, a end delete begin insert 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
in writing 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. end insert

begin insert (2) end insert begin insert   end insert begin insert A end insert public agency proposing a framework shall hold begin delete at least
two end delete begin insert a end insert public begin delete meetings end delete begin insert meeting end insert to allow interested persons and
entities to receive information about the begin delete proposed end delete draft begin insert regional
conservation end insert framework early in the process of preparing it and
to have an adequate opportunity to provide written and oral
comments. begin delete At least one of the end delete begin insert The end insert public begin delete meetings end delete begin insert meeting end insert shall
be held at a location within begin insert or near end insert the framework area. If
preparation of a regional conservation framework was initiated
before January 1, 2017, begin delete the public meetings end delete begin insert and a public meeting
regarding the framework that is consistent with the requirements
of this section was held before January 1, 2017, an additional
public meeting shall not be required. If preparation of a regional
conservation framework was initiated before January 1, 2017, and
a public meeting regarding the framework was not held before
January 1, 2017, the public meeting end insert required under this section
may be held after January 1, 2017, if begin delete they are end delete begin insert it is end insert held at least 30
days before the framework is submitted to the department for
approval.

begin delete

(2)

end delete

begin insert (3) end insert  At least 30 days before holding begin insert a end insert public begin delete meetings end delete begin insert meeting end insert
to distribute information about the development of a draft regional
conservation framework, a public agency proposing a framework
shall provide notice of begin delete the end delete begin insert a end insert regional conservation framework
public begin delete meetings end delete begin insert meeting end insert 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.

begin delete

(3)

end delete

begin insert (4) end insert  At least 60 days before submitting a begin delete draft end delete begin insert final end insert regional
conservation framework to the department for approval, the public
agency proposing the framework shall notify the board of
supervisors begin insert and the city councils end insert in each county within the
geographical scope of the framework and provide the board of
supervisors begin insert and the city councils end insert with an opportunity to submit
written begin delete comments. end delete begin insert comments for a period of at least 30 days. end insert

begin delete

(4)

end delete

begin insert (5) end insert  After a begin delete draft end delete begin insert final end insert regional conservation framework is
submitted to the department for approval, the department shall
have 30 days within which to begin delete deem end delete begin insert approve end insert the begin delete draft end delete begin insert final end insert regional
conservation framework begin delete complete end delete or to explain begin insert in writing end insert to the
public agency submitting the framework what is needed to

begin delete 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. end delete

begin insert approve the framework. end insert

(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

begin delete enhancements. end delete begin insert enhancement actions. end insert

begin delete 1854. end delete

begin insert 1855. end insert   

(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 insert

(c) Nothing in this chapter shall require a project proponent
seeking to provide compensatory mitigation pursuant to Section
1602, 2080.1, 2081, or 2835 or the California Environmental
Quality Act (Division 13 (commencing with Section 21000) of the
Public Resources Code) to undertake conservation actions or
habitat enhancement actions identified in a regional conservation
framework; implement, contribute to, fund, or otherwise comply
with the actions described in a regional conservation framework;
require or otherwise compel a project proponent to enter into a
mitigation credit agreement; or use or purchase mitigation credits
established pursuant to this chapter to satisfy the compensatory
mitigation requirements.

end insert

begin delete 1855. end delete

begin insert 1856. end insert   

(a) A conservation action or habitat enhancement begin insert action end insert
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
begin insert focal species and other end insert species, habitat, and other natural resources,
as provided in this section. begin delete To be used to create these mitigation
credits, a conservation action or habitat enhancement shall be
implemented successfully in advance of the impacts. end delete The
requirements of this section apply only to the begin delete generation end delete begin insert creation end insert
of mitigation credits under mitigation credit agreements pursuant
to this begin delete section. end delete begin insert section and do not establish requirements for other
forms of compensatory mitigation. end insert

(b) For a conservation action or habitat enhancement begin insert action end insert
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 begin delete enhancements end delete
begin insert enhancement actions end insert 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 begin delete five years. end delete begin insert 10
years, until all mitigation credits are used. end insert

(3) Identification of a public or private entity that will be
responsible for the begin delete periodic evaluation and for updating the
framework at least once every five years to incorporate the best
available scientific information and analyses. end delete begin insert updates and
evaluation required pursuant to paragraph (2). end insert

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

begin insert this section may be used to fulfill, in whole or in part, compensatory
mitigation requirements established under any state or federal
environmental law, as determined by the applicable local, state,
or federal regulatory agency, including, but not limited to, the
following: end insert

(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 begin delete enhancement. end delete begin insert enhancement action. end insert If a habitat enhancement
begin insert action end insert is used to begin delete provide compensatory mitigation, end delete begin insert create one or
more mitigation credits pursuant to this section, end insert the habitat
enhancement begin insert action end insert shall remain in effect begin delete for end delete at least begin delete as long as
the impact that is being mitigated. end delete begin insert until the site of the
environmental impact is returned to preimpact ecological
conditions. end insert

(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
begin insert action end insert and the terms and conditions under which the mitigation
credits may be used. begin insert Mitigation credits shall not be created on a
site that has already been permanently protected and has been
used, or is currently in use, to fulfill compensatory mitigation
requirements for one or more projects. end insert 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 begin delete enhancement, end delete begin insert enhancement action, end insert and any contractors or
consultants.

(2) Fully describes the proposed conservation actions or habitat

begin delete enhancements. end delete begin insert enhancement actions and explains how, and to
what extent, they will measurably advance conservation objectives
of the regional conservation framework that have not yet been
achieved. end insert

(3) Identifies the location of the conservation actions or habitat
begin delete enhancements, end delete begin insert enhancement actions, end insert including a location map,
address, and size of the site where the proposed conservation action
or habitat enhancement begin insert action end insert 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.

begin insert

(6) Identifies mitigation banks and conservation banks approved
by the department as a mitigation alternative and explains how
available mitigation credits at those banks will be purchased or
used in combination with the mitigation credits created under the
mitigation credit agreement or, if those available mitigation credits
will not be purchased or used, why they will not be purchased or
used.

end insert begin delete

(6)

end delete

begin insert (7) end insert  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.

begin delete

(7)

end delete

begin insert (8) end insert  Identifies public lands and permanently protected lands in
the vicinity of the conservation actions or habitat begin delete enhancements. end delete

begin insert enhancement actions. end insert

begin delete

(8)

end delete

begin insert (9) end insert  Fully describes the proposed type and quantity of mitigation
credits and the supporting rationale.

begin delete

(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.

end delete

(10) Identifies metrics or indicators by which the proposed
conservation action or habitat begin delete enhancement’s end delete begin insert enhancement action’s end insert
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 begin delete enhancements end delete begin insert enhancement actions that include habitat
restoration end insert 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 begin delete conditions, end delete begin insert conditions
described in the regional conservation framework, end insert 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 begin delete enhancements. end delete begin insert enhancement
actions. end insert

(12) Includes a template conservation begin delete easement end delete begin insert easement, or
other instrument providing for perpetual protection of land in a
manner substantially similar to a conservation easement approved
in advance in writing by the department, end insert for the sites of any
conservation action and an explanation of how the long-term
durability of the sites of any habitat begin delete enhancements end delete begin insert enhancement
actions end insert will be ensured.

(13) Ensures that the implementation of the conservation action
or habitat begin delete enhancement, including end delete begin insert enhancement action will be
adequately funded and that end insert long-term protection and management
of the begin delete site, end delete begin insert site end insert will be funded in accordance with Chapter 4.6
(commencing with Section 65965) of Division 1 of Title 7 of the
Government begin delete Code. end delete begin insert Code or, if a state agency proposed to enter
into a mitigation credit agreement, other comparable funding
mechanism approved by the department. end insert

(14) Includes a template monitoring and long-term begin delete adaptative end delete
begin insert adaptive end insert 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 begin delete enhancements end delete begin insert enhancement actions end insert 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 begin delete enhancements end delete begin insert enhancement actions end insert and how
they reflect a measurable advancement of the conservation
objectives of the regional conservation framework.

(B) Preliminary natural resources surveys begin insert by a qualified biologist end insert
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 begin delete easement end delete
begin insert easement, or other instrument providing for perpetual protection
of land in a manner substantially similar to a conservation
easement approved in advance in writing by the department, end insert that
will be used to permanently protect the site, and for habitat
begin delete enhancements, end delete begin insert enhancement actions, end insert 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 begin delete enhancements end delete begin insert enhancement actions end insert
achieve their site-specific conservation objectives.

(E) If mitigation credits are proposed to be created from habitat
begin delete enhancements end delete begin insert enhancement actions end insert 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 begin delete endowment end delete
begin insert endowment, or for state agencies other comparable funding
mechanism approved by the department, end insert for long-term protection,
management, and enforcement will be funded.

(H) A current preliminary report covering the site of the
conservation actions or habitat begin delete enhancements end delete begin insert enhancement actions end insert
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. begin insert Copies
of documentation of any encumbrances that may conflict with the
conservation objectives of the proposed conservation actions or
habitat enhancement actions shall be included with the preliminary
title report. end insert

(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 begin delete open space end delete begin insert open-space end insert 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).

begin delete

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

end delete

(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. begin insert Performance-based milestones may include,
but are not be limited to, the following: end insert

begin insert

(A) Recording a conservation easement or establishing perpetual
protection in a manner substantially similar to a conservation
easement and approved in advance in writing by the department
on the site of a conservation action, or putting into place measures
that ensure the long-term durability of a habitat enhancement
action in accordance with subdivision (d).

end insert begin insert

(B) Completing construction of a habitat restoration action.

end insert begin insert

(C) Achieving temporal ecological performance standards for
habitat restoration, such as standards established for one year,
three years, or five years following the initiation of habitat
restoration.

end insert begin insert

(D) Fully achieving ecological performance standards.

end insert

(3) The terms of the credit release schedule shall be specified
in the mitigation credit agreement. When conservation actions and
habitat begin delete enhancements end delete begin insert enhancement actions end insert 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 begin insert action end insert does not meet begin delete those end delete 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.

begin insert

(g) (1) Mitigation credit agreements may be used to establish
the terms and conditions under which mitigation credits can be
created by projects that improve wildlife habitat, or that address
stressors to wildlife, to an extent that quantifiably exceeds
compensatory mitigation requirements established by the
department for those projects pursuant to Chapter 6 (commencing
with Section 1600) or Chapter 1.5 (commencing with Section 2050)
of Division 3. Those projects may include, but are not limited to,
the construction of setback levees that result in the creation of
more floodplain or riparian habitat than is required to compensate
for construction impacts or the construction of transportation
facility improvements that remove barriers to fish or wildlife
movement and thereby improve the quality of habitat or address
stressors to wildlife to a greater extent than is required to
compensate for construction impacts. For those projects, the
project proponent may submit a draft mitigation credit agreement
that proposes the terms and conditions under which mitigation
credits may be created and used by or in conjunction with those
projects to the department for its review, revision, and approval.
The submission may occur concurrently with, or after, an
application submitted pursuant to Chapter 1.5 (commencing with
Section 2050) of Division 3 or a notice submitted pursuant to
Chapter 6 (commencing with Section 1600) or may occur after the
application or notice is submitted. Where a draft mitigation
agreement is submitted concurrently with the application or notice,
the department shall review the draft mitigation credit agreement
concurrently with its review of the application or notice and shall,
to the maximum extent practicable, complete its review of both the
notice or application and the draft agreement concurrently.

end insert begin insert

(2) Mitigation credit agreements submitted to the department
pursuant to this subdivision may comply with the requirements of
subdivision (f) with a credit release schedule related to
construction of the project that will improve wildlife habitat, or
will address stressors to wildlife, to an extent that exceeds
compensatory mitigation requirements quantifiably. For those
projects, construction of the project may be a performance-based
milestone required by paragraph (2) of subdivision (f).

end insert begin delete

(g)

end delete

begin insert (h) end insert  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).

begin delete

(h)

end delete

begin insert (i) end insert  The creation of mitigation credits pursuant to this section
from a conservation action or habitat enhancement begin insert action end insert
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 delete

(i)

end delete

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

begin delete 1856. end delete

begin insert 1857. end insert   

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 begin delete framework, end delete
begin insert framework or a regional conservation assessment, end insert to pay for all
or a portion of the department’s costs relating to the mitigation
credit begin delete agreement or end delete begin insert agreement, end insert proposed begin delete framework. end delete begin insert framework,
or proposed assessment. end insert

begin delete 1857. end delete

begin insert 1858. end insert   

The department may adopt guidelines and criteria to aid
in the implementation of begin delete Section 1855. end delete begin insert this chapter. end insert 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.

begin insert

begin insert 1859. end insert   

(a) The department shall submit a report to the
Legislature on or before January 1, 2020, regarding the
implementation of this chapter.

(b) The report required to be submitted pursuant to subdivision
(a) shall be submitted in compliance with Section 9795 of the
Government Code.

end insert begin insert

begin insert 1860. end insert   

The department shall not approve a regional
conservation framework or regional conservation assessment
pursuant to this chapter on or after January 1, 2020, and shall not
enter into a mitigation credit agreement pursuant to this chapter
on or after January 1, 2020.

end insert

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CORRECTIONS:

Heading--Last amended date.

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