BILL NUMBER: AB 2087 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 19, 2016
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
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. investment strategies.
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,
investment strategy, to be developed in
consultation with applicable local agencies that have land use
authority, for the purpose of informing science-based
conservation actions and habitat enhancement actions that would
advance the conservation of focal species and providing voluntary
nonbinding guidance for various activities. The bill would
require the framework strategy to
contain specified information and would authorize the
framework strategy to include a regional
conservation assessment proposed by the department or any other
public agency and approved by the department. The bill would
authorize the department to approve a regional conservation
framework, or approve the framework with amendments,
investment strategy or amended strategy for an initial period
of up to 10 years after a public meeting and a public comment period
regarding the proposed framework strategy or
amended strategy have been held and after it finds that the
framework strategy meets certain
requirements. The bill would authorize a conservation action and a
habitat enhancement action that measurably advance the conservation
objectives of an approved framework strategy
and that meet other specified requirements to be used to create
mitigation credits. The bill would authorize these mitigation
credits to be 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 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 require the department to collect fees
or other compensation from a person or entity that
proposes to enter into a mitigation credit agreement, and from a
public agency that proposes a framework,
strategy or a regional conservation assessment, to pay for all
or a portion of the department's costs relating to the mitigation
credit agreement, proposed framework,
strategy, or proposed regional conservation assessment.
The bill would authorize the department to partner with the
California Infrastructure and Economic Development Bank to finance
the development of advance mitigation credits if needed. The
bill would authorize the department to adopt guidelines and criteria
to aid in the implementation of these provisions and would exempt the
adoption of these guidelines and criteria from the Administrative
Procedure Act. 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 more than 15 regional conservation
investment strategies before January 1, 2020, and would prohibit the
department from approving a regional conservation
framework investment strategy or regional
conservation assessment on or after January 1, 2020, and from
entering into a mitigation credit agreement on or after January 1,
2020.
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. The purpose of Chapter 9 (commencing
with Section 1850) of Division 2 of the Fish and Game Code is to
create a pilot regional conservation investment strategy program
through January 1, 2020, to identify and prioritize regional
conservation through an open public process and using a science-based
approach while also encouraging investments in conservation through
advance mitigation.
SECTION 1. SEC. 2. Chapter 9
(commencing with Section 1850) is added to Division 2 of the Fish and
Game Code, to read:
CHAPTER 9. REGIONAL CONSERVATION FRAMEWORKS
ADVANCE MITIGATION AND REGIONAL CONSERVATION INVESTMENT
STRATEGIES
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, infrastructure, 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 science-based 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,
infrastructure, 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,
to regulate the use of land, establish land use
designations, or to affect affect, limit, or
restrict the land use authority of any public agency.
(f) Further, in enacting this chapter, it is not the intent of the
Legislature that an approved regional conservation investment
strategy would be binding on independent public agency action within
the strategy's geographic scope.
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) "Compensatory mitigation" means actions taken to fulfill, in
whole or in part, mitigation requirements under state or federal law
or a court mandate.
(c) "Conservation action" means 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 help to achieve one or more biological goals and objectives
for one or more focal species. Conservation actions may include, but
are not limited to, actions to offset impacts to focal species.
(d) "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.
(e) "Focal species" means sensitive species within a regional
conservation framework investment strategy
area that are analyzed in the framework
strategy and will benefit from conservation actions and
habitat enhancement actions set forth in the framework.
strategy.
(f) "Habitat enhancement action" 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.
(g) "Performance-based milestones" means specifically identified
steps in the implementation of a conservation action or habitat
enhancement action, such as site protection, initiating
implementation, completing implementation, or achieving performance
standards.
(h) "Performance standards" means observable or measurable
physical or biological attributes that are used to determine if a
conservation action or habitat enhancement action has met its
objectives.
(i) "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 consistent with draft or
approved natural community conservation plans within the area of the
applicable regional conservation investment strategy and
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 legal enforcement.
(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.
investment strategy.
(k) "Regional conservation framework"
investment strategy" 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
nonbinding 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, priorities, or identification of
priority locations for compensatory mitigation for impacts to species
and natural resources. Regional conservation frameworks
investment strategies are intended to provide
scientific information for the consideration of public agencies and
are voluntary and do not create, modify, or impose regulatory
requirements or standards, prescribe or prohibit land uses,
regulate the use of land, establish land use
designations, or affect the land use authority of any public agency.
The preparation and use of regional conservation frameworks
investment strategies for this guidance is
voluntary.
(l) "Regional level" means the geographic scale of relevant
ecologically defined units such as ecoregions.
(m) "Sensitive species" means any special status species
identified by a state or federal agency.
1852. (a) The department may approve a regional conservation
framework investment strategy pursuant
to this chapter. A regional conservation framework
investment strategy may be proposed by the department or
any other public agency, and shall be developed in
consultation with local agencies that have land use authority within
the geographic scope area of the
regional conservation framework. investment
strategy.
(b) The purpose of a regional conservation framework
investment strategy shall be to inform
science-based conservation actions and habitat enhancement
actions that would advance the conservation of focal species,
including the ecological processes, natural communities, and habitat
connectivity upon which those focal species depend, and to provide
nonbinding 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 resource conservation.
(3) Infrastructure planning.
(4) Identification of conservation priorities for land use
planning.
(3) Infrastructure.
(5)
(4) Identification of priority areas for compensatory
mitigation for impacts to species and natural resources.
(c) A regional conservation framework
investment strategy shall include all of the following:
(1) An explanation of the conservation purpose of and need for the
framework. strategy.
(2) The geographic area of the framework
strategy and rationale for the selection of the 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. strategy.
(3) The focal species included in, and their current known or
estimated status within, the framework.
strategy.
(4) Important resource conservation elements within the
framework strategy area, including, but not
limited to, important ecological resources and processes, natural
communities, habitat, 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 strategy
area, including climate change vulnerability, on the focal
species, habitat, and other natural resources, as identified in the
best available scientific information, including, but not limited to,
the State Wildlife Action Plan.
(6) Major water, transportation and transmission infrastructure
facilities, urban development areas, and county and city
city, county, and city and county general plan
designations in the framework strategy
area.
(7) Conservation goals and measurable objectives for the focal
species and important conservation elements identified in the
framework strategy that address or
respond to the identified stressors and pressures on focal species.
(8) Conservation actions, including a description of the general
amounts and types of habitat that, if preserved or restored and
permanently protected, could achieve the conservation goals and
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.
(9) An explanation of how the framework
Provisions ensuring that the strategy is consistent with
or and complements any draft or
approved natural community conservation plan,
plan or federal habitat conservation
plan, state or federal recovery plan, or other approved conservation
strategy plan that overlaps with the
framework strategy area.
(10) An explanation of whether and to what extent the strategy is
consistent with any previously approved strategy or amended strategy,
state or federal recovery plan, or other state or federal approved
conservation strategy that overlaps with the strategy area.
(10)
(11) 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
strategy area or whose service area overlaps
with the framework strategy area.
(11)
(12) A description of how the framework's
strategy's conservation goals and objectives
provide for adaptation opportunities against the effects of climate
change for the framework's strategy's
focal species.
(12)
(13) Incorporation and reliance on, and citation of,
the best available scientific information regarding the
framework strategy area and the surrounding
ecoregion, including a brief description of gaps in relevant
scientific 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 investment
strategies throughout California.
(d) A regional conservation investment strategy shall 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 regional conservation
values within the strategy area.
(e) In addition to considering the potential to advance the
conservation of focal species, regional conservation investment
strategies shall consider all of the following:
(1) The conservation benefits of preserving working lands for
agricultural uses.
(2) Reasonably foreseeable development of infrastructure
facilities.
(3) Reasonably foreseeable projects in the strategy area,
including, but not limited to, affordable housing.
(4) Reasonably foreseeable development for the production of
renewable energy.
1853. (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. investment strategy.
(b) If a regional conservation assessment that encompasses the
area of a proposed regional conservation framework
investment strategy has already been approved by the
department, the framework strategy
shall explain how and to what extent it has incorporated
the assessment information and analysis.
(c) A regional conservation assessment shall do all of the
following:
(1) Identify and summarize relevant regional pressures and
stressors, including climate change vulnerability, and conservation
priorities, including priority conservation areas and habitat
connectivity values, included in all of the following:
(A) Conservation plans, such as the State Wildlife Action Plan and
approved natural community conservation plans.
(B) Analyses designed to identify areas of high biological
diversity, such as the Areas of Conservation Emphasis.
(C) Analyses designed to identify areas of high value for habitat
connectivity.
(2) Identify the best available scientific information and
analyses, including geospatial information regarding the distribution
of species and natural communities.
(3) Use spatial analysis to identify ecological relationships
between existing protected areas and priority conservation areas.
(4) 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.
(5) 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
regional conservation values within the framework
strategy area.
(6) Be consistent with draft and approved natural community
conservation plans and regional habitat conservation plans, and
approved recovery plans within the ecoregion or subecoregion included
in the assessment.
(d) (1) A draft regional conservation assessment may be submitted
to the department with a draft regional conservation
framework investment strategy or separately.
(2) If submitted with a draft regional conservation
framework, investment strategy, the draft
regional conservation assessment shall be included in the review
process set forth in subdivision (c) of Section 1854.
(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.
1854. (a) The department may prepare or approve a regional
conservation framework, investment strategy,
or approve the framework with amendments,
an amended strategy, for an initial period of up to 10
years after finding that the framework
strategy meets the requirements of Section 1852. The department
may extend the duration of an approved or amended
regional conservation framework investment
strategy for additional periods of up to 10 years after
updating the strategy for new scientific information and
finding that the framework strategy
continues to meet the requirements of Section 1852. For purposes
of this section, an amended strategy means a complete regional
conservation investment strategy prepared by a public agency to amend
substantially and to replace an approved strategy submitted by the
public agency.
(b) It is the intent of this chapter to establish requirements
that provide sufficient flexibility to develop each regional
conservation framework investment strategy
based on the best available information regarding the
framework strategy area.
(c) (1) A public agency shall publish notice of its intent to
create a regional conservation investment strategy. This notice shall
be filed with the Governor's Office of Planning and Research and the
county clerk of each county in which the regional conservation
investment strategy is found in part or in whole. If preparation of a
regional conservation investment strategy was initiated before
January 1, 2017, this notice shall not be required.
(c) (1)
(2) After a draft regional conservation
framework investment strategy or an amendment to a
strategy is submitted to the department for approval, the
department shall have 30 days within which to deem the draft regional
conservation framework investment strategy
or an amended strategy complete or to explain in writing to the
public agency submitting the framework
strategy or amended strategy what is needed to complete the
framework. strategy or amended strategy.
Within 30 days of deeming a draft regional conservation
framework investment strategy or amended
strategy complete, the department shall make the draft
framework strategy or amended strategy
available to the public on its Internet Web site for review and
comment for a period of at least 30 days.
days and shall notify any public agency, organization, or individual
who has filed a written request to the department for notices
regarding draft regional conservation strategies.
(2)
(3) A public agency proposing a framework
strategy or amended strategy shall hold a public
meeting to allow interested persons and entities to receive
information about the draft regional conservation framework
investment strategy or amended strategy early in
the process of preparing it and to have an adequate opportunity to
provide written and oral comments. The public meeting shall be held
at a location within or near the framework
strategy area. If preparation of a regional conservation
framework investment strategy was
initiated before January 1, 2017, and a public meeting regarding the
framework strategy or amended strategy
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 investment strategy was initiated
before January 1, 2017, and a public meeting regarding the
framework strategy was not held before January
1, 2017, the public meeting required under this section may be held
after January 1, 2017, if it is held at least 30 days before the
framework strategy is submitted to the
department for approval.
(3)
(4) At least 30 days before holding a public meeting to
distribute information about the development of a draft regional
conservation framework, investment strategy
or amended strategy, a public agency proposing a
framework strategy shall provide notice of a
regional conservation framework investment
strategy or amended strategy public meeting as follows:
(A) On the public agency's Internet Web site and any relevant
LISTSERV.
(B) To each county or city city, county,
and city and county within or adjacent to the regional
conservation framework investment strategy
area.
(C) To each public agency, organization, or individual who has
filed a written request for the notice.
notice, including any agency, organization, or individual who has
filed a written request to the department for notices of all regional
conservation investment strategy public meetings.
(4)
(5) At least 60 days before submitting a final regional
conservation framework investment strategy or
amended strategy to the department for approval, the public
agency proposing the framework investment
strategy or amended strategy shall notify the board of
supervisors and the city councils in each county within the
geographical scope of the framework strategy
and provide the board of supervisors and the city councils with
an opportunity to submit written comments for a period of at least
30 days.
(5)
(6) After a final regional conservation
framework investment strategy or amended strategy
is submitted to the department for approval, the department
shall have 30 days within which to approve the final regional
conservation framework investment strategy or
amended strategy or to explain in writing to the public agency
submitting the framework strategy or amended
strategy what is needed to approve the framework.
strategy or amended strategy.
(d) The department shall make all approved regional conservation
frameworks, investment strategies,
including all updates to scientific information and analyses used in
a regional conservation framework, investment
strategy and any amendments to the strategy 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 investment strategy's conservation
objectives to measure the net change resulting from the
implementation of conservation actions and habitat enhancement
actions.
1855. (a) Regional conservation frameworks
investment strategies shall not affect the authority or
discretion of any public agency, except as specifically
provided in this chapter. agency and shall not be
binding upon public agencies other than parties to a mitigation
credit agreement. 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. Regional conservation investment strategies are
intended to provide scientific information for the consideration of
public agencies. Nothing in this chapter requires any public agency,
other than a public agency that is party to a mitigation credit
agreement, to adopt, implement, or otherwise adhere to a regional
conservation investment strategy or a regional conservation
assessment.
(b) The approval or existence of a regional conservation
framework investment strategy 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
take permits or concurrence
consistency 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. 1602, or any other
provision of this code or regulations adopted pursuant to
this code.
(2) Establish a presumption Require a lead
agency or responsible agency to determine that there is substantial
evidence 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 or 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.
(7) Constitute any of the following, for the purposes of the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code):
(A) A plan, policy, or regulation adopted for the purpose of
avoiding or mitigating an environmental effect.
(B) A local policy or ordinance protecting biological resources.
(C) An adopted local, regional, or state habitat conservation
plan.
(c) The department shall not reject biologically appropriate and
adequate compensatory mitigation proposed by a project proponent on
the basis that the compensatory mitigation is not a conservation
action or habitat enhancement identified in a regional conservation
investment strategy.
(c)
(d) 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; investment strategy; implement,
contribute to, fund, or otherwise comply with the actions described
in a regional conservation framework;
investment strategy; 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. Nothing in
this section shall prevent an applicant from proposing mitigation
consistent with one or more strategies identified pursuant to this
chapter.
(e) Mitigation credits provided by this chapter shall not be
utililized to fund or offset the costs of the design, construction,
or mitigation of new Delta conveyance facilities.
1856. (a) A conservation action or habitat enhancement action
that measurably advances the conservation objectives of an approved
regional conservation framework investment
strategy may be used to create mitigation credits that can be
used to compensate for impacts to focal species and other species,
habitat, and other natural resources, as provided in this section.
The requirements of this section apply only to the creation of
mitigation credits under mitigation credit agreements pursuant to
this section and do not establish requirements for other forms of
compensatory mitigation.
(b) For a conservation action or habitat enhancement action
identified in a regional conservation framework
investment strategy to be used to create mitigation
credits pursuant to this section, the regional conservation
framework investment strategy 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, strategy, and for tracking
the progress of, and evaluating the effectiveness of, conservation
actions and habitat enhancement actions identified in the
framework strategy, in offsetting identified
threats to focal species and in achieving the framework's
strategy's biological goals and objectives, at
least once every 10 years, until all mitigation credits are used.
(3) Identification of a public or private entity that will be
responsible for the updates and evaluation required pursuant to
paragraph (2).
(c) A mitigation credit created in accordance with 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:
(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
investment strategy 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 investment strategy area to less than
substantial.
(3) To mitigate significant effects on the environment within the
regional conservation framework investment
strategy 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 action. If a habitat enhancement action is used
to create one or more mitigation credits pursuant to this section,
the habitat enhancement action shall remain in effect at least until
the site of the environmental impact is returned to preimpact
ecological conditions.
(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 identify
the type and number of mitigation credits proposed to be
created by the conservation action or habitat
enhancement action and the terms and conditions under which
the mitigation credits may be used. 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. 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 action, and any contractors or consultants.
(2) Fully describes the proposed conservation actions or habitat
enhancement actions and explains how, and to what extent, they will
measurably advance conservation objectives of the regional
conservation framework investment strategy
that have not yet been achieved.
(3) Identifies the location of the conservation actions or habitat
enhancement actions, including a location map, address, and size of
the site where the proposed conservation action or habitat
enhancement action 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) 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.
(7) 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.
(8) Identifies public lands and permanently protected lands in the
vicinity of the conservation actions or habitat enhancement actions.
(9) Fully describes the proposed type and quantity of mitigation
credits and the supporting rationale. Mitigation credits created
pursuant to this section shall directly correlate to the focal
species and other species, habitat, and other natural resources
protected by the conservation actions or habitat enhancement actions.
(10) Identifies metrics or indicators by which the proposed
conservation action or habitat enhancement action's contribution to
achieving the framework's strategy's
conservation goals and objectives can feasibly be measured with
existing technology. The net ecological gain from the implementation
of conservation actions and habitat enhancement actions that include
habitat restoration 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
described in the regional conservation framework,
investment strategy, and measures the increment of gain in
relation to the regional conservation framework's
investment strategy's conservation objectives.
(11) Describes the proposed landownership of the site or sites of
the conservation actions or habitat enhancement actions.
(12) Includes a template conservation 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, consistent with
approved natural community conservation plans within the area of the
applicable regional conservation investment strategy, for the
sites of any conservation action and an explanation of how the
long-term durability of the sites of any habitat enhancement actions
will be ensured.
(13) Ensures that the implementation of the conservation action or
habitat enhancement action will be adequately funded and that
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 or, if a state agency
proposed to enter into a mitigation credit agreement, other
comparable funding mechanism approved by the department.
department in accordance with an adopted statewide
policy regarding funding for long-term management and operations of
mitigation sites.
(14) Includes a template monitoring and long-term adaptive
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 enhancement actions will be implemented, the
following information consistent with, pursuant to
this chapter, the information required for a mitigation
bank in paragraph (2) of subdivision (b) of Section 1798 and
subparagraphs (B) to (H), inclusive, of paragraph (2) of subdivision
(a) of Section 1798.5 shall be prepared and submitted to the
department for review for adequacy and approval prior to
implementation: implementation.
(A) Site-specific conservation objectives of the conservation
actions or habitat enhancement actions and how they reflect a
measurable advancement of the conservation objectives of the regional
conservation framework.
(B) Preliminary natural resources surveys by a qualified biologist
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, 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, that will be used to permanently
protect the site, and for habitat enhancement actions, 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 enhancement actions achieve their site-specific
conservation objectives.
(E) If mitigation credits are proposed to be created from habitat
enhancement actions 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, or
for state agencies other comparable funding mechanism approved by the
department, for long-term protection, management, and enforcement
will be funded.
(H) A current preliminary report covering the site of the
conservation actions or habitat enhancement actions 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. 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.
(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).
(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. Performance-based milestones
may shall include, but are not be limited to,
the following:
(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 consistent with approved natural community
conservation plans within the area of the applicable regional
conservation investment strategy 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).
(B) Completing construction of a habitat restoration action.
(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.
(D) Fully achieving ecological performance standards.
(3) The terms of the credit release schedule shall be specified in
the mitigation credit agreement. When conservation actions and
habitat enhancement actions 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
action does not meet 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) (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.
(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).
(h) 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).
(i) The creation of mitigation credits pursuant to this section
from a conservation action or habitat enhancement action 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.
Individuals and entities eligible for coverage as a participating
special entity under an approved natural
community conservation plan may use mitigation credits created
pursuant to this section only if the plan's implementing entity
declines to extend coverage to the covered activity proposed by the
eligible individual or entity.
(j) The department shall make project mitigation credit and
release information publicly available on the department's Internet
Web site.
1857. The department may shall
collect fees or other compensation 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 investment strategy or a regional
conservation assessment, to pay for all or a portion of the
department's costs relating to the mitigation credit agreement,
proposed framework, strategy, or
proposed assessment.
1858. The department may adopt guidelines and criteria to aid in
the implementation of this chapter. 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.
1859. (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.
1860. The department may partner with California Infrastructure
and Economic Development Bank to finance the development of advance
mitigation credits if needed.
1861. Nothing in this chapter supersedes, limits, or otherwise
modifies the Sacramento-San Joaquin Delta Reform Act of 2009
(Division 35 (commencing with Section 85000) of the Water Code) or
Division 22.3 (commencing with Section 32300) of the Public Resources
Code.
1860. 1862. The department
shall approve no more than 15 regional conservation investment
strategies before January 1, 2020. The department shall not
approve a regional conservation framework
investment strategy 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.