BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2087|
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THIRD READING
Bill No: AB 2087
Author: Levine (D)
Amended: 8/19/16 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 investment strategies
SOURCE: Author
DIGEST: This bill establishes a pilot project for a regional
conservation investment strategy (RCIS) program that would
identify and prioritize regional conservation through a
science-based public process while also encouraging investments
in conservation through advance mitigation. No more than 15
regional strategies could be approved prior to 1/1/20 and the
program sunsets on that same date.
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Senate Floor Amendments of 8/19/16 respond to numerous
stakeholder meetings and are intended to reshape many provisions
to focus on the voluntary and non-regulatory nature of its
provisions, to ensure that other laws (such as the California
Environmental Quality Act (CEQA) are neither strengthened nor
weakened by this bill, to improve communications with affected
local jurisdictions, to beef up public participation, and
perhaps to reduce opposition especially from Delta counties who
were suspicious that the bill would somehow boost a new Delta
water conveyance system.
ANALYSIS:
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, 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.
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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
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 have no effect on local land-use decisions. It also has
a finding declaring legislative intent that the an approved
RCIS is not binding on an independent public agency action
within the geographic scope of the RCIS.
2) Contains many definitions to terms such as "areas of
conservation emphasis," compensatory mitigation,"
"conservation action," "focal species," and others.
3) Defines an RCIS as the information and analysis prepared
pursuant to this bill that provides nonbinding, voluntary
guidance for the identification of wildlife and habitat
conservation priorities. An RCIS is voluntary and does not
create, modify, or impose regulatory requirements or
standards, regulate land use, establish land use
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designations, or affect the land use authority of any public
agency. The preparation and use of RCISs is also voluntary.
4) Authorizes the DFW to approve an RCIS proposed by DFW or any
other public agency, developed in consultation with local
agencies with land use authority, and specifies that the
purpose of an RCIS is to provide voluntary, nonbinding
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;
d) Identification of priority locations for compensatory
mitigation.
5) Identifies the elements that must be included in an RCIS to
be approved by DFW that provides context at an ecoregional
scale for development of the RCIS, as specified. Generally,
the RCIS must identify focal species, important resource
conservation elements within the region, historic, current
and projected future stressors, major water, transportation,
and transmission infrastructure facilities, conservation
actions that would achieve the conservation goals of the
RCIS, demonstrated consistency with existing or draft natural
community conservation plans (NCCPs), among others.
6) Requires the RCIS to also identify mitigation banks within
the RCIS boundaries, account for climate change on the focal
species and conservation goals of the RCIS, rely on the best
available scientific information, be prepared in way that can
be uploaded and searched through interactive use on the
internet, incorporate considerations of preserving working
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lands, reasonably foreseeable development of infrastructure,
affordable housing, and renewable energy projects.
7) Authorizes, but does not require, a separate regional
conservation assessment that covers an even larger ecosystem
than an RCIF that contains many of the same topics in an
RCIF. The bill contains provisions for the two documents to
be submitted together or separately, and an regional
conservation assessment is not a precondition for an RCIS. An
RCIS would be valid for 10 years, and the department could
extend the RCIS for additional 10 year periods after updating
the strategy for new scientific information,
8) Requires a public agency preparing a RCIS, prior to
submitting the draft RCIS to DFW, to publicly notice and hold
a public meeting. Information on the draft RCIS must be
posted on the internet, shared with each local government,
and provided to every entity and individual who has requested
notices for all RCIS public meetings.
9) Requires, within 60 days of submitting a final RCIS, that
the board of supervisors and city councils in each county
within the geographical scope of the RCIS be notified and
given a 30-day opportunity to comment.
10)Provides DFW 30 days to consider whether a draft RCIS is
complete, and if not, it must explain to the public agency
submitting the draft what is needed to complete the RCIS.
11)Requires DFW to make all RCISs and any updates available to
the public on its Internet Web site for public review and
comment for at least 30 days, and to make all approved RCISs
and any updates available on its Internet Web site.
12)Adds a series of statutory statements that the RCIS does not
increase or decrease the authority of DFW, modify the
standards for issuing take permits, streambed alternation
agreements, or other provisions of the the Fish and Game
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Code.
13)Adds a provision that the bill does not require a lead
agency or responsible agency to determine that there is
substantial evidence under CEQA in connection with any
determination whether a proposed project may or may not
result in significant environmental effects or in any way
limit a lead agency's or responsible agency's discretion to
determine whether a proposed project may or may not result in
significant environmental effects.
14)Adds a provision that the bill does not prohibit or
authorize ay project or project impacts, create a presumption
that any proposed project will be authorized or prohibited,
alter any local general plan, constitute a plan, policy or
ordinance under CEQA, or constitute a local policy or
ordinance.
15)Adds a provision that 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 an RCIS.
16)Adds a provision that project proponent seeking to provide
compensatory mitigation is not required to mitigate with
conservation actions that are identified in an RCIS. A
project proponent may voluntary propose to do so.
17)Prohibits mitigation credits authorized by this bill to fund
or offset the costs of the design, construction, or
mitigation of new Delta conveyance facilities.
18)Authorizes conservation actions or habitat enhancements that
measurably advance the conservation objectives of an approved
RCIS 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
RCIS 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. The adequacy of mitigation
credit is determined by the applicable local, state, or
federal regulatory agency.
19)Authorizes mitigation credits to be used to compensate for
take of endangered species, to reduce adverse impacts to fish
or wildlife resources, or to mitigate other environmental
effects pursuant to CEQA.
20)Requires DFW to ensure the long-term durability of a habitat
enhancement action, including mitigation credits, which shall
remain in effect at least until the site of the environmental
impact is returned to preimpact ecological conditions.
21)Provides the procedural provisions to create mitigation
credits and the application criteria for mitigation credits.
Many of 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, consistency with
any NCCPs, 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 funding
mechanism, and provisions for enforcement of the terms of the
mitigation credit transaction.
22)Prohibits the release of credits 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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23)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 RCIS shall not duplicate or
replace mitigation requirements set forth in a natural
community conservation plan.
24)Authorizes the DFW to collect fees from an entity that
proposes to enter into a mitigation credit agreement or that
proposes a RCIS, to pay for all or a portion of DFW's costs.
25)Requires a report to the Legislature by the Department
regarding the implementation of this bill on or before
1/1/20.
26)Allows DFW to partner with the California Infrastructure and
Economic Development Bank to finance the development of
advance mitigation credits if needed.
27)States that this bill does not affect the Sacramento-San
Joaquin Delta Reform Act of 2009.
28)Prohibits DFW from approving more than 15 RCIS before 1/1/20
and entering into mitigation credit agreements on or after
that same date.
29)Contains other technical amendments.
Background
To demonstrate the approach that is represented by this bill,
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three pilot projects are underway. Each demonstrates a different
application of the conservation strategy proposed in this bill.
However, in the absence of a statutory change, the concepts of
advance mitigation and RCIS would not be available.
In Yolo County, a pilot regional conservation framework 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.
In Antelope Valley, a regional conservation plan 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.
In the Bay Area, a nine-county Regional Conservation
Assessment and two regional conservation planning efforts 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 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 guidelines and administer the program, some or all of
which may be recovered through fees plus unknown, potentially
significant savings to state agencies using the framework for
conservation efforts, infrastructure planning, or mitigation.
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SUPPORT: (Verified 8/22/16)
Audubon California
Big Sur Land Trust
Bolsa Chica Land Trust
California Trout
Defenders of Wildlife
East Bay Regional Park District
Greenbelt Alliance
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: (Verified8/22/16)
California Apartment Association
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Construction Industry Materials Association
San Diego Regional Chamber
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
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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. RCISs 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 RCIS,
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.
It, along with a coalition, objects to what it calls the
possibility that DFW could unilaterally adopt plans that call
for conservation of vast tracks of public and private land even
if these lands are already in general plans and zoned for
development. The coalition believes the state has comprehensive
conservation and mitigation banking statutes, and that this bill
prioritizes conservation over housing, agriculture,
manufacturing, and transportation.
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Large Scale Solar Association argues the bill provides
"unprecedented" new authority to create RCISs and has inadequate
criteria for what lands warrant conservation so that the bill
could adversely affect renewable energy siting or other
important infrastructure. It questions the adequacy of the
scientific thresholds, the public process, and wants the bill
limited to public projects, not those advocated by the private
sector.
Sierra Club California opposed the previous version of the bill,
and instead would support strengthening existing conservation
programs including NCCPs and mitigation banks. It believes the
bill is 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. It is
not clear if the Sierra Club is an active opponent.
Although not in formal opposition, the California Farm Bureau
has expressed concerns about impacts of the bill on private
landowners.
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
8/22/16 22:41:45
**** END ****
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