BILL ANALYSIS Ó AB 2087 Page 1 (Without Reference to File) CONCURRENCE IN SENATE AMENDMENTS AB 2087 (Levine) As Amended August 31, 2016 Majority vote -------------------------------------------------------------------- |ASSEMBLY: |52-20 |(June 2, 2016) |SENATE: | |(August 31, | | | | | |25-12 |2016) | | | | | | | | | | | | | | | -------------------------------------------------------------------- Original Committee Reference: W., P., & W. SUMMARY: Authorizes the Department of Fish and Wildlife (DFW) to approve regional conservation investment strategies (RCIS) to identify and provide voluntary guidance for regional conservation, and to encourage investments in conservation through advance mitigation. The Senate amendments: 1)State that the purpose of this bill is to create a pilot program to identify and prioritize science-based regional AB 2087 Page 2 conservation while also encouraging conservation investments through advance mitigation. Clarify that the purpose of an RCIS is to provide non-binding voluntary guidance on conservation priorities. 2)Rename the Regional Conservation Frameworks this bill would authorize as RCIS. 3)Add a three year sunset date, prohibiting the DFW from approving an RCIS or regional conservation assessment on or after January 1, 2020, and limiting the number of RCIS approved by the DFW within that time frame to no more than eight. 4)Add, delete and clarify definitions. 5)Clarify that it is not the intent of the Legislature with this bill to regulate land use, or to limit or restrict the land use authority of any public agency. Further state that it is not the intent of the Legislature that an approved RCIS be binding on independent agency action within the geographic scope of the RCIS. State that RCIS are nonbinding and voluntary and do not affect the authority or discretion of local land use agencies. 6)Clarify program provisions, specifically what is to be included in and considered in developing an RCIS. Among other things, require that the RCIS process, in addition to considering the potential for conservation of focal species, also consider: a) The conservation benefits of preserving working lands for agricultural uses. b) Reasonably forseeable infrastructure facility AB 2087 Page 3 development. c) Reasonably forseeable projects in the area, including housing. d) Reasonably forseeable development for the production of renewable energy. 7)Add additional public notice, public meeting, and public comment opportunity requirements. Require a public agency to publish notice of its intent to create an RCIS, to file that notice with the Governor's Office of Planning and Research and the county clerk of each county in the RCIS area, and to notify anyone who has filed a written request with the DFW for notices regarding draft RCISs, and any implementing entities for any Natural Community Conservation Plans (NCCPs) in the RCIS area. Also require that those entities be notified at least 30 days before a public meeting is held on the RCIS. Require a public agency proposing an RCIS to include responses to public comments in their submittal to the DFW. 8)Require consultation with local agencies that have land use authority within the geographic area in developing an RCIS. 9)Add additional criteria that must be met for a conservation action or habitat enhancement identified in an RCIS to be used to create mitigation credits. Expand upon and clarifies the conditions that must be met for the DFW to approve a mitigation credit agreement. Among other things, require the DFW to ensure the long-term durability of habitat enhancements, and requires a mitigation credit agreement to meet standards consistent with those required for approval of a mitigation bank under existing law, as specified. 10)Require an RCIS to be consistent with any applicable administrative draft or approved NCCP within an RCIS area, and AB 2087 Page 4 to explain how the RCIS is consistent with any other previously approved conservation strategies or recovery plans that overlap with the RCIS area. 11)Add information on climate change vulnerability to the information that is included in an RCIS. 12)Clarify that an RCIS does not modify the requirements for other Fish and Game Code sections or regulations, and does not constitute a plan, policy or regulation for purposes of the California Environmental Quality Act (CEQA). Further clarify that an RCIS does not modify the standards for CEQA, or otherwise limit a lead agency's discretion to determine whether a project may or may not result in significant environmental effects. 13)Prohibit mitigation credits authorized under this bill from being used to fund or offset the costs of design, construction, or mitigation of new Delta conveyance. Clarify that this bill does not modify or limit the Delta Reform Act. 14)Clarify that RCISs are voluntary and non-binding on public agencies other than the parties to a mitigation credit agreement, are intended to provide scientific information for consideration by public agencies, and do not require other public agencies to adopt, implement or otherwise adhere to an RCIS. 15)Add a requirement for the DFW to provide public notice and an opportunity to comment on proposed mitigation credit agreements. 16)Authorize the DFW to adopt guidelines to aid in implementation and require the DFW to collect fees or other compensation from an entity that proposes to enter into a mitigation credit agreement to cover costs. AB 2087 Page 5 17)Make other technical and clarifying changes. EXISTING LAW: 1)Establishes the 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)Under the California Endangered Species Act (CESA), prohibits 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. 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. Authorizes the development of NCCPs to provide AB 2087 Page 6 comprehensive management and conservation of wildlife, pursuant to specified requirements. FISCAL EFFECT: According to the Senate Appropriations Committee: 1)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. 2)Unknown, potentially significant savings to state agencies using the RCIS process for conservation efforts, infrastructure planning, or mitigation. COMMENTS: This bill authorizes a new voluntary conservation tool known as a RCIS to identify wildlife habitat conservation needs in a region, help guide infrastructure planning and development, improve the effectiveness of public expenditures for conservation, and identify potential advance mitigation solutions for public infrastructure projects. An RCIS could be proposed by a public agency, in consultation with local agencies, and submitted to the DFW for review and approval. A conservation action that measurably advances the conservation objectives of an approved RCIS, and meets other specified requirements, could be used to create advance mitigation credits through a mitigation credit agreement approved by the DFW. The Senate amendments narrow this bill to a three year pilot program. The DFW would be authorized to approve RCISs only until January 1, 2020, and the number of RCISs approved during those three years would be limited to no more than eight. The Senate amendments also clarify the voluntary, non-binding and non-regulatory nature of this bill. The Senate floor analysis notes that in order to demonstrate the approach that is represented by this bill, there are three pilot AB 2087 Page 7 projects currently underway in Yolo County, Antelope Valley, and the Bay Area. Each demonstrates a different application of the conservation strategy proposed in this legislation. However, in the absence of a statutory change, the concept of advance mitigation credit based on an RCIS would not be available. Supporters of this bill emphasize this bill will provide an efficient approach for regional conservation planning that identifies needs and priorities for wildlife and habitat conservation, improves the effectiveness of public investments in wildlife conservation, and assists in guiding infrastructure projects and identifying suitable areas for advance mitigation investments for those projects. They emphasize this bill accomplishes the twin goals of improved conservation outcomes and improved infrastructure development. Some supporters also believe this new tool will help guide development away from the most sensitive habitat while providing a more comprehensive and efficient approach to mitigation. Most of the opposition was removed with the final amendments adopted in the Senate. Some entities who manage mitigation banks had concerns with a prior version, specifically with the advance mitigation credit provisions, and would like to see advance mitigation options limited to for-profit mitigation banks approved under existing statutory processes. This bill as amended requires mitigation credit agreements authorized under this bill to meet the same standards as mitigation banks. One opponent to an earlier version of this bill also raised concerns regarding NCCPs, public review of mitigation credit agreements, and the science requirements for RCIS. The amendments taken in the Senate require that the RCIS be consistent with any NCCP that overlaps with the RCIS area, add a requirement for public notice, review and comment on mitigation credit agreements, and require that the RCIS be science-based. Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0005039 AB 2087 Page 8