BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2087|
          |Office of Senate Floor Analyses   |                              |
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                                   THIRD READING 


          Bill No:  AB 2087
          Author:   Levine (D) 
          Amended:  8/16/16 in Senate
          Vote:     21 

           SENATE NATURAL RES. & WATER COMMITTEE:  6-2, 6/28/16
           AYES:  Pavley, Allen, Hertzberg, Hueso, Jackson, Monning
           NOES:  Stone, Vidak
           NO VOTE RECORDED:  Wolk

           SENATE APPROPRIATIONS COMMITTEE:  5-2, 8/11/16
           AYES:  Lara, Beall, Hill, McGuire, Mendoza
           NOES:  Bates, Nielsen

           ASSEMBLY FLOOR:  52-20, 6/2/16 - See last page for vote

           SUBJECT:   Regional conservation frameworks


          SOURCE:    Author


          DIGEST:  This bill authorizes the Department of Fish and  
          Wildlife to approve regional conservation frameworks" (RCF)  
          which would create a new approach for conservation of natural  
          resources and infrastructure planning and provide for advance  
          mitigation under specified conditions. 




          ANALYSIS:









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          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) Prohibits, under the state Endangered Species Act (CESA),  
             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. 


          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  







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             in conservation, infrastructure, sustainable community  
             strategies, and compensatory mitigation for impacts to  
             species. This 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. This bill  
             contains additional findings regarding the importance of  
             voluntary, non-regulatory approaches to regional conservation  
             that have no effect on local land-use decisions. 


           2) Includes a definition of "compensatory mitigation" as an  
             action to preserve or restore ecological resources permanent  
             and to provide their perpetual management in order to achieve  
             one or more biological goals. Also defines "permanently  
             protect" to mean recording a conservation easement or  
             establishing an alternative means to permanently protect  
             conservation lands similar to a conservation easement in a  
             format approved in advance by DFW. 


           3) Establishes "regional conservation assessments" that  
             describe on an ecosystem basis important scientific  
             information that is critical to the identification of areas  
             with the greatest probability for long-term conservation  
             success incorporation specified ecosystem services. Such  
             assessments may be used to assist with the development of  
             regional conservation frameworks. 


           4) Defines "RCFs" as the information and analyses that would  
             advance, on a voluntary basis, the conservation of focal  
             species and habitat and that complies with the other  
             provisions of this chapter. 


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


              a)    Identification of wildlife and habitat conservation  







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                priorities, including actions to address impacts of  
                climate change and other stressors; 


              b)    Investments in natural resource conservation; 


              c)    Infrastructure planning including the identification  
                of major water, transportation, and transmission  
                infrastructure facilities as well as urban development  
                areas, and county and city general plan designations; 


              d)    Identification of conservation priorities for land use  
                planning; 


              e)    Identification of priority locations for compensatory  
                mitigation; and


              f)    A summary of available mitigation banks within the  
                framework area. 


           1) Authorizes but does not require the department to prepare a  
             regional conservation assessment that identifies relevant  
             regional pressures such as climate change vulnerabilities,  
             existing conservation plans (including the Wildlife Action  
             Plan), and approved NCCPs. 


           2) 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.  This 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. An RCF would be  
             valid for 10 years, and the department could extend the RCF  







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             for additional 10-year periods. 





           3) Requires a public agency preparing a RCF, prior to  
             submitting the RCF to DFW, to post the proposed draft RCF on  
             the DFW Web site and to publicly notice and hold a public  
             hearing  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. This 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. This bill also  
             requires DFW to make all RCFs available to the public on its  
             Internet Web site for public review 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. 


           4) 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 the California Environmental Quality Act  
             (CEQA), prohibit or authorize any project or impacts from any  
             project, or affect any local land use decision-making. In  
             particular, the bill is clear that and RCF does not require a  
             project proponent who seeks to provide compensatory  
             mitigation to undertake conservation actions identified in an  
             RCF or to compel the use of any mitigation credit agreement  
             to satisfy compensatory mitigation requirements. 


           5) 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  







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             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. 


           6) Requires the same extensive conservation criteria that are  
             required for mitigation banks 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. The bill requires that conservation  
             actions pursuant to an RCF are adequately funded and also  
             requires approved mitigation banks be identified as a  
             mitigation alternative. 


           7) Prohibits the release of mitigation credits without the  
             approval of the department, and all such releases must be  
             tied to performance-based milestones and achievement of  
             ecological performance standards. Performance standards may  
             include conservation easements or an approved alternative to  
             a conservation easement, completion of construction of a  
             habitat restoration action, achieving ecological performance  
             standards potentially for one, three, or five years following  
             the initiation of habitat restoration, or fully achieving  
             ecological performance standards. 


           8) 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  







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             effects on the environment within the RCF area pursuant to  
             CEQA, including projects related to setback levees,  
             transportation facilities that remove barriers to fish or  
             wildlife movement, among others. 


           9) 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. 


           10)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. 


           11)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.  


          Background


          To demonstrate the approach that is represented by this bill,  
          three pilot projects are underway. Each demonstrates a different  
          application of the RCF proposed in this bill. However, in the  
          absence of a statutory change, the concepts of advance  
          mitigation and regional conservation frameworks would not be  
          available. 




           1) In Yolo County, a pilot RCF will serve as a complement to  
             the Yolo County habitat plans, and, if approved, will have a  







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             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. 




           2) 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. 


           3) 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 the California  
             Department of Transportation to facilitate possible advance  
             mitigation for transportation projects. 




          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No




          According to the Senate Appropriations Committee, approximately  
          $675,000 in year one, and $987,000 annually (special fund) to  
          develop RCF guidelines and administer the program, some or all  
          of which may be recovered through fees. Unknown, potentially  
          significant savings to state agencies using the RCF framework  
          for conservation efforts, infrastructure planning, or  
          mitigation.




          SUPPORT:   (Verified8/15/16)







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          American Planning Association
          American Planning Association, California Chapter
          Audubon California
          Big Sur Land Trust
          Bolsa Chica Land Trust 
          California Council of Land Trusts
          California Trout
          Defenders of Wildlife  
          East Bay Regional Park District
          Environmental Defense Fund 
          Hills for Everyone
          Laguna Greenbelt, Inc.
          Land Trust of Santa Cruz County
          Local Government Commission
          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:   (Verified8/15/16)


          California Building Industry Association
          Large Scale Solar Association
          Sierra Club California 

          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  







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          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 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. 


          ARGUMENTS IN OPPOSITION:   The California Building Industry  
          Association is concerned that the bill could undermine NCCP,  
          Habitat Conservation Plan, and mitigation banking provisions and  
          it questions the bill's disclaimers that it would not affect  
          land use or CEQA. It is not clear if the recent amendments  
          address its concerns. The Large Scale Solar Association wants  
          more protections for renewable (solar) energy sites. 

          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  







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          a given project. 

          ASSEMBLY FLOOR:  52-20, 6/2/16
          AYES:  Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown,  
            Burke, Calderon, Campos, Chau, Chiu, Chu, Cooley, Dababneh,  
            Daly, Dodd, Eggman, Cristina Garcia, Eduardo Garcia, Gatto,  
            Gipson, Gomez, Gonzalez, Gordon, Gray, Hadley, Roger  
            Hernández, Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low,  
            Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell,  
            Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,  
            Thurmond, Ting, Weber, Williams, Wood, Rendon
          NOES:  Achadjian, Travis Allen, Baker, Brough, Chang, Chávez,  
            Dahle, Grove, Harper, Jones, Kim, Lackey, Mathis, Mayes,  
            Melendez, Obernolte, Patterson, Wagner, Waldron, Wilk
          NO VOTE RECORDED:  Bigelow, Cooper, Frazier, Beth Gaines,  
            Gallagher, Linder, Olsen, Steinorth

          Prepared by:William Craven / N.R. & W. / (916) 651-4116
          8/16/16 17:52:56


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