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:  8/31/16 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 eight  
          regional strategies could be approved prior to January 1, 2020,  
          and the program sunsets on that same date. 












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          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. 


           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: 









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           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. Defines  
             "regional conservation assessment" as non-binding and  
             voluntary. 


           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  
             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 in  
             writing by 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: 









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              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  
             lands, reasonably foreseeable development of infrastructure,  
             affordable housing, and renewable energy projects and NCCPs. 


           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.  Such assessments are limited to the purpose of a RCIS.  
             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  







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             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 Fish and Game Code. 


           13)Adds a provision that the bill does not modify the standards  
             for CEQA or limit a lead or responsible agency's discretion  
             under CEQA. 


           14)Adds a provision that the bill does not prohibit or  
             authorize any project or project impacts, create a  
             presumption that any proposed project will be authorized or  







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             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  
             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. 







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           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.  


           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.   










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           25)Requires a report to the Legislature by the Department  
             regarding the implementation of this bill on or before  
             January 1, 2020. 


           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 eight RCIS before  
             January 1, 2020, 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,  
          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  







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            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.


          SUPPORT:   (Verified 8/22/16)


          American Farmland Trust
          Audubon California 
          Big Sur Land Trust
          Bolsa Chica Land Trust
          California Trout
          Defenders of Wildlife
          East Bay Regional Park District
          Endangered Habitat League 
          Greenbelt Alliance
          Hills for Everyone
          Laguna Greenbelt, Inc.
          Land Trust of Santa Cruz County
          Local Government Commission







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          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)


          Falling Springs
          National Mitigation Banking Association
          Land Veritas
          McCollum Associates
          Ecosystem Investment Partners
          Sierra Club California 
          VCS Environmental Lucky Day Ranch Partnership
          Wetland Resources LLC

          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. 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,  







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          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 major business coalition has  
          removed its opposition as has Westerveldt Ecological Services, a  
          mitigation banking firm. Sierra Club California is concerned  
          that the mitigation credits lack oversight and enforcement. A  
          coalition of other mitigation banks remains in opposition based  
          on an assertion that the bill provides less rigorous standards  
          that are required for mitigation banks, a point which was  
          addressed in a recent amendment. (See Item #24, page 6 of this  
          analysis.) 


          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








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          Prepared by:William Craven / N.R. & W. / (916) 651-4116
          8/31/16 19:23:25


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