Amended in Senate August 31, 2016

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

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 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 investment strategy, to be developed in consultation with applicable local agencies that have land use authority, for the purpose of informing science-based begin insert nonbinding and voluntary end insert conservation actions and habitat enhancement actions that would advance the conservation of focal species and providing voluntary nonbinding guidance for various activities. begin insert The bill would authorize the department to approve a regional conservation investment strategy only if one or more state agencies request approval of the strategy through a letter sent to the Director of Fish and Wildlife, as prescribed. end insert The bill would require the strategy to contain specified information and would authorize the 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 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 strategy or amended strategy have been held and after it finds that the 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 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 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 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 strategy, or proposed regional conservation assessment. begin delete 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. end delete 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 begin delete 15 end delete begin insert 8 end insert regional conservation investment strategies before January 1, 2020, and would prohibit the department from approving a regional conservation 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 begin delete and prioritize regional conservation end delete
begin insert regional conservation and conservation investments, and aid the
development of critical infrastructure end insert through an open public
process and using a science-based approach while also encouraging
investments in conservation through advance mitigation.

SEC. 2.  

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

 

Chapter  9. 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 begin delete needed end delete to address the impacts
of climate change and other wildlife stressors, in order to guide
voluntary investments in conservation, begin delete infrastructure, sustainable
communities strategies, end delete 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 begin delete needed end delete 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 begin insert all of end insert 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 begin delete conservation that identifies species and
habitat conservation needs, end delete begin insert conservation, end insert including actions begin delete needed end delete
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 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 regulate the use of land, establish land use designations, or to
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:

begin insert

(a) “Administrative draft natural community conservation plan”
means a substantially complete draft of a natural community
conservation plan that is released after January 1, 2016, to the
general public, plan participants, and the department.

end insert begin delete

(a)

end delete

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

begin delete

(b)

end delete

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

begin delete

(c)

end delete

begin insert (d) end insert  “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.

begin delete

(d)

end delete

begin insert (e) 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

(e)

end delete

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

begin delete

(f)

end delete

begin insert (g) end insert  “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.

begin delete

(g)

end delete

begin insert (h) end insert  “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.

begin delete

(h)

end delete

begin insert (i) end insert  “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.

begin delete

(i)

end delete

begin insert (j) 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, or establishing perpetual
protection of land in a manner 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.

begin delete

(j)

end delete

begin insert (k) end insert  “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 begin delete prioritized end delete
begin insert nonbinding, voluntary end insert conservation strategies and actions. Those
assessments include information begin delete critical to end delete begin insert for end insert 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 investment strategy. begin insert A regional
conservation assessment is nonbinding, voluntary, and does not
create, modify, or impose regulatory requirements or standards,
regulate the use of land, establish land use designations, or affect
the land use authority of, or the exercise of discretion by, any
public agency. The preparation and use of a regional conservation
assessment is voluntary. end insert

begin delete

(k)

end delete

begin insert (l) end insert  “Regional conservation investment strategy” means
information and analyses prepared pursuant to this chapter to
inform begin insert nonbinding and voluntary end insert 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, begin delete identification of conservation priorities, end delete or
identification of begin delete priority end delete locations for compensatory mitigation for
impacts to species and natural resources. Regional conservation
investment strategies are intended to provide scientific information
for the consideration of public begin delete agencies and are voluntary end delete begin insert agencies,
are voluntary, end insert and do not create, modify, or impose regulatory
requirements or standards, regulate the use of land, establish land
use designations, or affect the land use authority of begin insert or exercise of
discretion by, end insert any public agency. The preparation and use of
regional conservation investment strategies for this guidance is
voluntary.

begin delete

(l)

end delete

begin insert (m) end insert  “Regional level” means the geographic scale of relevant
ecologically defined units such as ecoregions.

begin delete

(m)

end delete

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

1852.  

(a) The department may approve a regional conservation
investment strategy pursuant to this chapter. A regional
conservation 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 area of the regional conservation investment
strategy. begin insert The department may only approve a regional conservation
investment strategy if one or more state agencies request approval
of the regional conservation investment strategy through a letter
sent to the director end insert begin insert indicating that the proposed regional
conservation investment strategy would contribute to meeting both
of the following state goals: end insert

begin insert

(1) Conservation.

end insert begin insert

(2) Public infrastructure or forest management.

end insert

(b) The purpose of a regional conservation investment strategy
shall be to inform science-based begin insert nonbinding and voluntary end insert
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 begin delete needed end delete to address the impacts of climate change
and other wildlife stressors.

(2) Investments in resource conservation.

(3) Infrastructure.

(4) Identification of begin delete priority end delete areas for compensatory mitigation
for impacts to species and natural resources.

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

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

(2) The geographic area of the 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 strategy.

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

(4) Important resource conservation elements within the 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 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)  begin delete Major end delete begin insert Consideration of major end insert water, transportation and
transmission infrastructure facilities, urban development areas,
and city, county, and city and county general plan designations
begin insert that accounts for reasonably foreseeable development of major
infrastructure facilities, including, but not limited to, renewable
energy and housing end insert in the strategy area.

begin insert

(7) Provisions ensuring that the strategy will be in compliance
with all applicable state and local requirements and does not
preempt the authority of local agencies to implement infrastructure
and urban development in local general plans.

end insert begin delete

(7)

end delete

begin insert (8) end insert  Conservation goals and measurable objectives for the focal
species and important conservation elements identified in the
strategy that address or respond to the identified stressors and
pressures on focal species.

begin delete

(8)

end delete

begin insert (9) end insert  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.

begin delete

(9)

end delete

begin insert (10) end insert  Provisions ensuring that the strategy is consistent with and
complements any begin delete draft or end delete begin insert administrative draft natural community
conservation plan, end insert approved natural community conservation begin delete plan end delete
begin insert plan, end insert or federal habitat conservation plan that overlaps with the
strategy area.

begin delete

(10)

end delete

begin insert (11) end insert  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.

begin delete

(11)

end delete

begin insert (12) end insert  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 strategy area or whose service
area overlaps with the strategy area.

begin delete

(12)

end delete

begin insert (13) end insert  A description of how the strategy’s conservation goals and
objectives provide for adaptation opportunities against the effects
of climate change for the strategy’s focal species.

begin delete

(13)

end delete

begin insert (14) end insert  Incorporation and reliance on, and citation of, the best
available scientific information regarding the 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 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, begin delete affordable end delete housing.

(4) Reasonably foreseeable development for the production of
renewable energy.

begin insert

(5) Draft natural community conservation plans within the area
of the applicable regional conservation investment strategy.

end insert

1853.  

(a) The department may approve a regional conservation
assessment begin insert only for the purposes of a regional conservation
investment strategy end insert 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 investment strategy.

(b) If a regional conservation assessment that encompasses the
area of a proposed regional conservation investment strategy has
already been approved by the department, the 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 begin delete vulnerability, and conservation
priorities, including priority end delete begin insert vulnerability, end insert 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 begin delete of high value end delete 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 begin delete priority end delete 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 begin delete priority end delete 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.

(6) Be consistent with begin delete draft and end delete begin insert administrative draft natural
community conservation plans, end insert approved natural community
conservation begin delete plans end delete begin insert plans, end insert and regional habitat conservation plans,
and approved recovery plans within the ecoregion or subecoregion
included in the assessment.

begin insert

(7) Consider existing major water, transportation, and
transmission infrastructure facilities in the assessment area and
account for reasonably foreseeable development of major
infrastructure facilities, including, but not limited to, renewable
energy and housing.

end insert begin insert

(8) Include provisions ensuring that the strategy will be in
compliance with all applicable state and local requirements and
does not preempt the authority of local agencies to implement
infrastructure and urban development in local general plans.

end insert begin insert

(9) Include provisions ensuring that the assessment is consistent
with and complements any approved natural community
conservation plan or regional federal habitat conservation plan
that overlaps with the assessment area.

end insert begin insert

(10) Include an explanation of whether, and to what extent, the
assessment is consistent with any previously approved assessment
or amended assessment, state or federal recovery plan, or other
state or federal approved conservation strategy that overlaps with
the assessment area.

end insert begin delete

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

(2) If submitted with a draft regional conservation 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.

end delete

1854.  

(a) The department may prepare or approve a regional
conservation investment strategy, or approve an amended strategy,
for an initial period of up to 10 years after finding that the strategy
meets the requirements of Section 1852. The department may
extend the duration of an approved or amended regional
conservation investment strategy for additional periods of up to
10 years after updating the strategy for new scientific information
and finding that the 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
investment strategy based on the best available information
regarding the 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.

(2) After a draft regional conservation 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 investment strategy or an amended
strategy complete or to explain in writing to the public agency
submitting the strategy or amended strategy what is needed to
complete the strategy or amended strategy. Within 30 days of
deeming a draft regional conservation investment strategy or
amended strategy complete, the department shall make the draft
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
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.

(3)  begin insert (A) end insert begin insert   end insert A public agency proposing a strategy or amended
strategy shall hold a public meeting to allow interested persons
and entities to receive information about the draft regional
conservation 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 strategy area. begin delete If end delete

begin insert

(B) In a draft regional conservation investment strategy or
amended strategy submitted to the department for approval, the
public agency shall include responses to written public comments
submitted during the public comment period.

end insert

begin insert (C) end insert begin insert   end insert begin insert If end insert preparation of a regional conservation investment strategy
was initiated before January 1, 2017, and a public meeting
regarding the 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. begin delete If end delete

begin insert (D) end insert begin insert   end insert begin insert If end insert preparation of a regional conservation investment strategy
was initiated before January 1, 2017, and a public meeting
regarding the 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 strategy is
submitted to the department for approval.

(4) At least 30 days before holding a public meeting to distribute
information about the development of a draft regional conservation
investment strategy or amended strategy, a public agency proposing
a strategy shall provide notice of a regional conservation
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 city, county, and city and county within or adjacent
to the regional conservation investment strategy area.

begin insert

(C) To the implementing entity for each natural community
conservation plan or federal regional habitat conservation plan
that overlaps with the strategy area.

end insert begin delete

(C)

end delete

begin insert (D) end insert  To each public agency, organization, or individual who has
filed a written request for the 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.

(5) At least 60 days before submitting a final regional
conservation investment strategy or amended strategy to the
department for approval, the public agency proposing the
investment strategy or amended strategy shall notify the board of
supervisors and the city councils in each county within the
geographical scope of the 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.

(6) After a final regional conservation 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 investment strategy or amended strategy or
to explain in writing to the public agency submitting the strategy
or amended strategy what is needed to approve the strategy or
amended strategy.

(d) The department shall make all approved regional
conservation investment strategies, including all updates to
scientific information and analyses used in a regional conservation
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 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 investment strategies shall
not affect the authority or discretion of any public 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 begin insert or any other provision of law end insert
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
investment begin delete strategy or end delete begin insert strategy, end insert mitigation credit begin delete agreement end delete
begin insert agreement, or credit end insert 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 consistency determinations pursuant to Section
2081 or 2080.1, issuance of take authorizations pursuant to Section
2835, the issuance of lake or streambed alteration agreements
pursuant to Section 1602, or any other provision of this code or
regulations adopted pursuant to this code.

(2)  begin delete Require a lead agency or responsible agency to determine
that there is substantial evidence end delete begin insert Modify in any way the standards end insert
under the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources begin delete Code) end delete
begin insert Code), or in any way limit a lead agency’s or responsible agency’s
discretion, end insert in connection with any determination of whether a
proposed project may or may not result in significant environmental
effects or in any way begin delete limit a lead agency’s or responsible agency’s
discretion to determine, based on project-specific information, end delete
begin insert establish a presumption in connection with any determination of end insert
whether a proposed project may or may not result in significant
environmental begin delete effects. end delete begin insert effects or whether a proposed project’s
impacts would be mitigated. end insert

(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.

begin delete

(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.

end delete begin delete

(d)

end delete

begin insert (c) end insert  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
investment strategy; implement, contribute to, fund, or otherwise
comply with the actions described in a regional conservation
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 begin delete an applicant end delete begin insert a project proponent end insert from
proposing mitigation consistent with one or more strategies
begin delete identified end delete begin insert approved end insert pursuant to this chapter.

begin delete

(e)

end delete

begin insert (d) end insert  Mitigation credits provided by this chapter shall not be
begin delete utililized end delete begin insert utilized end insert to fund or offset the costs of the design,
construction, or mitigation of new Delta begin insert water end insert conveyance
facilities.

begin insert

(e) 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.

end insert

1856.  

(a) A conservation action or habitat enhancement action
that measurably advances the conservation objectives of an
approved regional conservation 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 investment strategy to be used
to create mitigation credits pursuant to this section, the regional
conservation 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
strategy, and for tracking the progress of, and evaluating the
effectiveness of, conservation actions and habitat enhancement
actions identified in the strategy, in offsetting identified threats to
focal species and in achieving the 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 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 investment
strategy area to less than substantial.

(3) To mitigate significant effects on the environment within
the regional conservation 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 identify the type and number of mitigation
credits proposed to be created 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. begin delete To end delete

begin insert (f) end insert begin insert   end insert begin insert To end insert 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 begin delete approval. end delete
begin insert approval or disapproval. Within five days of deeming a draft
agreement complete, the department shall publish notice of the
availability of the draft agreement by filing its notice with the
Governor’s Office of Planning and Research and the city and
county clerks of each county in which the agreement is applicable
in part or in whole and shall make the draft agreement available
to the public on its Internet Web site, and to any public agency,
organization, or individual who has filed a written request to the
department for notices regarding agreements, for review and
comment for a period of at least 45 days, following which the
department shall respond to written comments submitted during
the public comment period and may approve the agreement,
approve it with revisions, or disapprove it. end insert 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 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 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 investment strategy, and measures the increment of
gain in relation to the regional conservation 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
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 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, 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.

(18) Includes a proposed credit ledger and credit release
schedule that meets the requirements of subdivision begin delete (f). end delete begin insert (g). end insert

begin delete

(f)

end delete

begin insert (g) end insert  (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 shall include,
but are not be limited to, the following:

(A) Recording a conservation easement 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.

begin delete

(g)

end delete

begin insert (h) end insert  (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 begin delete (f) end delete begin insert (g) end insert 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 begin delete (f). end delete begin insert (g). end insert

begin delete

(h)

end delete

begin insert (i) 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

(i)

end delete

begin insert (j) end insert  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.

begin delete

(j)

end delete

begin insert (k) end insert  The department shall make project mitigation credit and
release begin delete information end delete begin insert information, including the demonstration
submitted pursuant to paragraph (4) of subdivision (g), end insert publicly
available on the department’s Internet Web site.

1857.  

The department 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 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 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.

begin delete

1860.  

The department may partner with California
Infrastructure and Economic Development Bank to finance the
development of advance mitigation credits if needed.

end delete

begin delete 1861. end delete

begin insert 1860. end insert   

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.

begin delete 1862. end delete

begin insert 1861. end insert   

The department shall approve no more than begin delete 15 end delete begin insert 8 end insert regional
conservation investment strategies before January 1, 2020. The
department shall not approve a regional conservation 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.