BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 2087|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
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:
AB 2087
Page 2
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
AB 2087
Page 3
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
AB 2087
Page 4
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
AB 2087
Page 5
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
AB 2087
Page 6
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
AB 2087
Page 7
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
AB 2087
Page 8
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)
AB 2087
Page 9
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
AB 2087
Page 10
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
AB 2087
Page 11
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
**** END ****