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: 8/31/16 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. AB 2087 Page 2 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: AB 2087 Page 3 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: AB 2087 Page 4 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 AB 2087 Page 5 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 AB 2087 Page 6 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. AB 2087 Page 7 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. AB 2087 Page 8 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 AB 2087 Page 9 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 AB 2087 Page 10 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, AB 2087 Page 11 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 AB 2087 Page 12 Prepared by:William Craven / N.R. & W. / (916) 651-4116 8/31/16 19:23:25 **** END ****