BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
                             Senator Fran Pavley, Chair
                                2015 - 2016  Regular 

          Bill No:            AB 2087         Hearing Date:    June 28,  
          2016
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          |Author:    |Levine                 |           |                 |
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          |Version:   |June 22, 2016    Amended                             |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|William Craven                                       |
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                     Subject:  Regional conservation frameworks

          BACKGROUND AND EXISTING LAW
             1)   Establishes the Department of Fish and Wildlife (DFW) in  
               the Natural Resources Agency. The DFW has jurisdiction over  
               the conservation, protection, and management of fish and  
               wildlife, native plants, and habitat necessary for  
               biologically sustainable populations of those species. 
             2)   Under the state Endangered Species Act, prohibits the  
               taking of an endangered or threatened species, except as  
               specified. The DFW may permit the take of listed species if  
               the take is incidental to an otherwise lawful activity and  
               the impacts are minimized and fully mitigated. 
             3)   Establishes that it is the policy of the State to  
               conserve, protect, restore and enhance natural communities.  
               State law further declares that it is the policy of the  
               state to encourage, wherever feasible and practicable,  
               voluntary steps to protect the functioning of wildlife  
               corridors through various means. 
             4)   Recognizes the need for broad-based planning to provide  
               for effective protection and conservation of the state's  
               wildlife heritage while continuing to allow for appropriate  
               development and growth. State law also authorizes the  
               development of Natural Community Conservation Plans (NCCP)  
               to provide comprehensive management and conservation of  
               wildlife, pursuant to specified requirements. 
             5)   To demonstrate the approach that is represented by this  
               bill, three pilot projects are underway. Each demonstrates  
               a different application of the Regional Conservation  







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               Framework (RCF) proposed in this legislation. However, in  
               the absence of a statutory change, the concepts of advance  
               mitigation and regional conservation frameworks would not  
               be available. 
               a)     In Yolo County, a pilot RCF will serve as a  
                 complement to the Yolo County habitat plans, and, if  
                 approved, will have a steering committee that includes  
                 the California Natural Resources Agency and Yolo County  
                 representatives. It is designed to assist a multi-agency  
                 flood control and habitat restoration effort in the Yolo  
                 Bypass. 
               b)     In Antelope Valley, a pilot RCF would build on the  
                 work of the Desert Renewable Energy Conservation Plan to  
                 facilitate siting and advance mitigation for renewable  
                 energy facilities. This pilot has been convened by the  
                 Desert and Mountains Conservation Authority. 
               c)     In the Bay Area, a nine-county Regional Conservation  
                 Assessment and two RCFs were begun earlier this year,  
                 building on a commitment from the Metropolitan  
                 Transportation Commission and the State Coastal  
                 Conservancy to work with local agencies and nonprofits as  
                 well as CalTrans to facilitate possible advance  
                 mitigation for transportation projects. 


           PROPOSED LAW
          This bill authorizes the Department of Fish and Wildlife to  
          approve RCFs to guide conservation of natural resources and  
          infrastructure planning. Specifically, this bill: 

             1)   States legislative findings and declarations regarding  
               the benefits of identifying habitat conservation  
               initiatives on a regional scale, including actions to  
               address climate change, protect wildlife corridors, and  
               guide voluntary investments in conservation,  
               infrastructure, sustainable community strategies, and  
               compensatory mitigation for impacts to species. The bill  
               contains additional findings that state that the purpose of  
               this bill is to promote conservation of natural resources,  
               biodiversity and ecological processes, and to identify  
               conservation actions that promote resiliency to the impacts  
               of climate change and other stressors. The bill contains  
               additional findings regarding the importance of voluntary,  
               non-regulatory approaches to regional conservation that  








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               have no effect on local land-use decisions. 

             2)   Authorizes the DFW to approve a RCF proposed by DFW or  
               any other public agency and specifies that the purpose of a  
               RCF is to provide voluntary guidance for one or more of the  
               following, as specified: 

               a)      Identification of wildlife and habitat conservation  
                 priorities, including actions to address impacts of  
                 climate change and other stressors; 
               b)      Investments in natural resource conservation; 
               c)      Infrastructure planning; 
               d)      Identification of conservation priorities for land  
                 use planning; 
               e)     Identification of priority locations for  
                 compensatory mitigation. 

             1)   Identifies the elements that must be included in an RCF  
               to be approved by DFW and requires the RCF to include a  
               regional conservation assessment that provides context at  
               an ecoregional scale for development of the RCF, as  
               specified.  If an assessment has already been prepared it  
               can be incorporated by reference if it meets specified  
               criteria, including the use of standardized information so  
               that RCFs use a consistent approach.  The bill requires the  
               RCF to include best available scientific information and  
               for the information to be displayed on the internet in a  
               way that allows the public to have interactive use. A RCF  
               would be valid for 10 years, and the department could  
               extend the RCF for additional 10 year periods. 

             2)   Requires a public agency preparing a RCF, prior to  
               submitting the RCF to DFW, to publicly notice and hold at  
               least two public meetings, at least one of which must be in  
               the RCF area, to allow interested persons to receive  
               information early in the preparation process and to have an  
               opportunity to provide written and oral comments. Other  
               provisions dealing with public notice and public meetings  
               are also in the bill. The bill requires that the board of  
               supervisors in each county within the geographical scope of  
               the RCF be notified and given an opportunity to comment at  
               least 60 days prior to submittal of the proposed RCF to  
               DFW. The bill also requires DFW to make all RCFs available  
               to the public on its Internet Web site for public review  








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               and comment for at least 30 days, and to make all approved  
               RCFs and any updates available on its Internet Web site.  
               DFW has 30 days to consider whether a draft RCF is  
               complete, and if not, it must explain to the public agency  
               submitting the draft what is needed to complete the RCF. 

             3)   Adds a series of statutory statements that the RCF does  
               not increase or decrease the authority of DFW, modify the  
               standards for issuing take permits, establish any  
               presumptions under CEQA, prohibit or authorize any project  
               or impacts from any project, or affect any local land use  
               decision-making. 

             4)   Authorizes conservation actions or habitat enhancements  
               that measurably advance the conservation objectives of an  
               approved RCF to be used to create mitigation credits that  
               can be used to compensate for impacts to species, habitat,  
               or other natural resources, if the conservation action or  
               habitat enhancement is implemented successfully in advance  
               of the impacts. In order to be used to create mitigation  
               credits, a RCF must include an adaptive management and  
               monitoring strategy, a process for updating scientific  
               information and evaluating the effectiveness of identified  
               conservation actions and habitat enhancements at least  
               every ten years, and identification of an entity who will  
               be responsible for those updates and evaluations. 

             5)   The same extensive conservation criteria that are  
               required for mitigation banks would be required for  
               mitigation credits issued pursuant to this bill. These  
               include maps, a natural resources evaluation, a  
               conservation easement to permanently protect the site, a  
               description of how habitat values will be improved, the  
               metrics that will be used to measure how the goals are to  
               be achieved, a description of the net ecological gain  
               compared to baseline conditions, a long-term endowment, and  
               provisions for enforcement of the terms of the mitigation  
               credit transaction. 

             6)   Mitigation credits will not be released without the  
               approval of the department, and all such releases must be  
               tied to performance-based milestones and achievement of  
               ecological performance standards. 









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             7)   Specifies that a mitigation credit created in accordance  
               with an approved RCF may be used to: a) compensate for take  
               or other adverse impacts of activities authorized pursuant  
               to the California Endangered Species Act (CESA) within the  
               RCF area, b) reduce adverse impacts to fish and wildlife  
               from authorized streambed alteration activities within the  
               RCF area to less than substantial, and c) mitigate  
               significant effects on the environment within the RCF area  
               pursuant to CEQA. 

             8)    Requires that in order to create mitigation credits  
               under this bill a mitigation credit agreement shall be  
               required with DFW. The agreement shall establish the type  
               and number of mitigation credits created and the terms and  
               conditions under which the credits may be used. Specifies  
               the information in detail that must be submitted to DFW to  
               enter into a mitigation credit agreement. 

             9)    Clarifies that nothing in this bill is intended to  
               limit or impose additional conditions on the creation or  
               sale of mitigation credits by a conservation bank or  
               mitigation bank approved under existing law. Clarifies that  
               creation of mitigation credits under an RCF shall not  
               duplicate or replace mitigation requirements set forth in a  
               natural community conservation plan. 

             10)   Authorizes the DFW to collect fees from an entity that  
               proposes to enter into a mitigation credit agreement or  
               that proposes a RCF, to pay for all or a portion of DFW's  
               costs.  

          ARGUMENTS IN SUPPORT
          According to the author, AB 2087 establishes a new conservation  
          planning tool that will identify wildlife and habitat  
          conservation needs and priorities in a region, help guide  
          infrastructure planning and development, and improve the  
          effectiveness of public expenditures for wildlife conservation.  
          This process will also help to identify potential advance  
          mitigation solutions for large-scale public infrastructure  
          projects. RCFs will identify wildlife, fisheries, and habitat  
          conservation needs, including actions to address climate change  
          and other stressors in order to guide public investments in  
          conservation, infrastructure planning, compensatory mitigation  
          for threatened and endangered species, and wildlife and  








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          fisheries recovery strategies. 

          The author also stresses the importance of allowing conservation  
          actions to be implemented in accordance with an approved RCF,  
          and in advance of project impacts, to be used to obtain  
          mitigation credits to fulfill, in whole or in part, mitigation  
          requirements for a project, if the permitting agency determines  
          that the conservation action provides suitable mitigation and  
          complies with other provisions of state law. 

          Other supporters welcome the new planning tool not only to map  
          natural resources across the region, but also to identify  
          actions that will promote regional conservation. Many supporters  
          also welcome the ability to undertake advance mitigation for  
          projects although that is not a requirement of the bill which  
          remains a voluntary, non-regulatory tool. 

          Most supporters pointed to the fact that the bill could help  
          guide development away from sensitive habitat while also  
          adopting a more comprehensive approach to mitigation. 

          Defenders of Wildlife is in support and seeks two amendments:  
          (1) a definition of "conservation" and (2) deletion of a  
          redundant clause in section 1854(b)(7). 

          ARGUMENTS IN OPPOSITION
          The California Building Industry Association is concerned that  
          the bill could undermine NCCP, Habitat Conservation Plan (HCP),  
          and mitigation banking provisions. It is not clear if the recent  
          amendments address its concern. 

          Sierra Club California opposes the new conservation program of  
          RCFs, and instead would support strengthening existing  
          conservation programs including NCCPs and mitigation banks. It  
          believes RCFs would be weaker than NCCPs and it also believes  
          that reliance on mitigation is misplaced because developers  
          should first try to avoid impacts. It would prefer a public  
          process regarding the appropriateness of mitigation credits for  
          a given project. 

          Although not in formal opposition, the California Farm Bureau is  
          concerned about impacts of the bill on private landowners. 

          The Large Scale Solar Association seeks amendments to identify  








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          lands that are acceptable for renewable energy projects and the  
          mitigation lands for those projects. 

          COMMENTS
             1.   This bill has been discussed extensively by the parties,  
               including the opposition, and staff is recommending only  
               two amendments. 
               a)     The mitigation credit and release information should  
                 be public information and displayed on the department's  
                 website. Staff will work with the author on that  
                 language. Amendment 1. 
               b)     The recent amendments to Section 1850 clearly  
                 establish legislative intent that RCFs neither authorize  
                 nor prohibit any land uses, establish any land use  
                 designations, or affect the land use authority of any  
                 public agency.  Similarly, in operational language in  
                 section 1854, there is a new amendment that describes in  
                 detail all the things that RCFs and mitigation credit  
                 agreements do not affect. This includes standards for  
                 permits under CESA, any affect whatsoever on CEQA or the  
                 discretion of a lead agency, whether a project should be  
                 approved or not, whether a presumption regarding a  
                 project is or is not created, and any changes to a local  
                 general plan. The original language in the bill that  
                 there is no binding or mandatory regulatory effect on  
                 private landowners or project proponents seems redundant  
                 given this new much more extensive and precise amendment  
                 and the Committee may wish to delete it. Amendment 2. 

          SUGGESTED AMENDMENTS 
          AMENDMENT 1
               Include language requiring the public display of all  
               projects' mitigation credit and release information on the  
               website of the Department of Fish and Wildlife. 

          AMENDMENT 2
               Delete Section 1854 (b) (7). 

               
          SUPPORT
          Audubon California
          Big Sur Land Trust
          Bolsa Chica Land Trust 
          California Chapter, American Planning Association








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          California Council of Land Trusts
          California Trout
          Defenders of Wildlife (if amended) 
          East Bay Regional Park District
          Hills for Everyone
          Laguna Greenbelt, Inc.
          Land Trust of Santa Cruz County
          Marin Agricultural Land Trust
          Mojave Desert Land Trust
          Open Space Authority of Santa Clara Valley
          Pacific Forest Trust 

          Pathways for Wildlife
          Placer Land Trust 
          Planning and Conservation League
          Sierra Business Council 
          Sierra Foothill Conservancy
          Sonoma County Agricultural Preservation and Open Space District
          The Nature Conservancy
          Transition Habitat Conservancy
          Transportation Agency for Monterey County
          Truckee Donner Land Trust


          OPPOSITION
          California Building Industry Association
          Large Scale Solar Association
          Sierra Club California
                                      -- END --