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
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