Bill Text: CA AB2087 | 2015-2016 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Regional conservation investment strategies.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2016-09-22 - Chaptered by Secretary of State - Chapter 455, Statutes of 2016. [AB2087 Detail]

Download: California-2015-AB2087-Amended.html

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BILL NUMBER: AB 2087	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 1, 2016
	AMENDED IN SENATE  JUNE 22, 2016
	AMENDED IN ASSEMBLY  MAY 31, 2016
	AMENDED IN ASSEMBLY  APRIL 5, 2016

INTRODUCED BY   Assembly Member Levine

                        FEBRUARY 17, 2016

   An act to add Chapter 9 (commencing with Section 1850) to Division
2 of the Fish and Game Code, relating to fish and wildlife.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2087, as amended, Levine. Regional conservation frameworks.
   Existing law establishes the Department of Fish and Wildlife in
the Natural Resources Agency. Under existing law, the department has
jurisdiction over the conservation, protection, and management of
fish, wildlife, native plants, and habitat necessary for biologically
sustainable populations of those species. The California Endangered
Species Act prohibits the taking of an endangered, threatened, or
candidate species, except as specified. Under the act, the department
may authorize the take of listed species if the take is incidental
to an otherwise lawful activity and the impacts are minimized and
fully mitigated. Existing law prohibits an entity from substantially
diverting or obstructing the natural flow of, or substantially
changing or using any material from the bed, channel, or bank of, any
river, stream, or lake, or from depositing certain material where it
may pass into any river, stream, or lake, without first notifying
the department of that activity, and entering into a lake or
streambed alteration agreement if required by the department to
protect fish and wildlife resources.
   This bill would authorize the department, or any other public
agency, to propose a regional conservation framework that would be
required to contain specified information, including a regional
conservation assessment. The bill would authorize the department to
approve a regional conservation framework, or approve the framework
with amendments, for an initial period of up to 10 years after
certain public meetings and a public comment period regarding the
proposed framework have been held and after it finds that the
framework meets certain requirements. The bill would authorize a
conservation action, as defined, and a habitat enhancement, as
defined, that measurably advance the conservation objectives of an
approved framework and that meet other specified requirements, to be
used to create mitigation credits that may be used, within the
framework area, to compensate for take or other adverse impacts of
activities authorized pursuant to the California Endangered Species
Act, to reduce adverse impacts to fish or wildlife resources, or
both, from activities authorized pursuant to a lake or streambed
alteration agreement to less than substantial, or to mitigate
significant effects on the environment pursuant to the California
Environmental Quality Act. To create these mitigation credits, the
bill would require a person or entity to enter into a mitigation
credit agreement with the department that meets specified
requirements. The bill would prohibit the release of mitigation
credits for use, sale, or transfer under a mitigation credit
agreement unless the department approves the release in accordance
with certain requirements. The bill would authorize the department to
collect fees from a person or entity that proposes to enter into a
mitigation credit agreement, and from a public agency that proposes a
framework, to pay for all or a portion of the department's costs
relating to the mitigation credit agreement or proposed framework.
The bill would authorize the department to adopt guidelines and
criteria to aid in the implementation of the mitigation credit
provisions and would exempt the adoption of these guidelines and
criteria from the Administrative Procedure Act.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Chapter 9 (commencing with Section 1850) is added to
Division 2 of the Fish and Game Code, to read:
      CHAPTER 9.  REGIONAL CONSERVATION FRAMEWORKS


   1850.  (a) The Legislature finds and declares that it would be
beneficial to identify species and habitat conservation initiatives
at a regional scale, including actions needed to address the impacts
of climate change and other wildlife stressors, in order to guide
voluntary investments in conservation, infrastructure planning,
sustainable communities strategies, and compensatory mitigation for
impacts to ecological resources, including impacts to threatened and
endangered species, other sensitive species, natural communities,
ecological processes, and wildlife corridors.
   (b) The purpose of this chapter is to promote the voluntary
conservation of natural resources, including biodiversity and
ecological processes, and to enhance resiliency to climate change and
other threats. In order to further this goal, it is the policy of
the state to encourage voluntary mechanisms to conserve biological
and other ecological resources and to identify conservation actions,
including actions needed to promote resiliency to the impacts of
climate change and other stressors to species and habitat.
   (c) It is further the policy of the state to encourage voluntary
mechanisms to identify and implement advance mitigation actions that
do the following:
   (1) Can be used to compensate for project impacts, including, but
not limited to, infrastructure and renewable energy projects, more
efficiently.
   (2) Are effective ecologically.
   (3) Will help to conserve regionally important biological and
other ecological resources.
   (d) In enacting this chapter, it is the intent of the Legislature
to promote conservation planning that identifies species and habitat
conservation needs, including actions needed to promote resiliency to
the impacts of climate change and other stressors. It is further the
intent of the Legislature to create nonregulatory mechanisms to
guide investments in conservation, infrastructure and land use
planning, and compensatory mitigation for impacts to natural
resources, including impacts to threatened and endangered species,
other sensitive species, natural communities, ecological processes,
and connectivity.
   (e) In enacting this chapter, it is not the intent of the
Legislature to prescribe or prohibit land uses, establish land use
designations, or to affect the land use authority of any public
agency.
   1851.  For purposes of this chapter:
   (a) "Areas of Conservation Emphasis" means the biodiversity
analysis completed by the department in 2010, or the latest update of
that analysis.
   (b) "Conservation action" means the permanent protection of
habitat, and restoration and management actions on permanently
protected habitat that help to offset the impacts of threats to focal
species and help to achieve biological goals and objectives for
those focal species.
   (c) "Conservation easement" means a perpetual conservation
easement that complies with Chapter 4 (commencing with Section 815)
of Title 2 of Part 2 of Division 2 of the Civil Code.
   (d) "Focal species" means native species within a regional
conservation framework area that are analyzed in the framework and
will benefit from conservation actions set forth in the framework.
   (e) "Habitat enhancement" means an action to improve the quality
of wildlife habitat, or to address risks or stressors to wildlife,
that has long-term durability but does not involve land acquisition
or the permanent protection of habitat, such as improving in-stream
flows to benefit fish species, enhancing habitat connectivity, or
invasive species control or eradication. If a habitat enhancement is
used to create one or more mitigation credits pursuant to this
chapter, long-term durability means that the habitat enhancement will
remain in effect for at least as long as the impact that is being
mitigated.
   (f) "Performance-based milestones" means specifically identified
steps in the implementation of a conservation action or habitat
enhancement, such as site protection, initiating implementation,
completing implementation, or achieving performance standards.
   (g) "Performance standards" means observable or measurable
physical or biological attributes that are used to determine if a
conservation action or habitat enhancement has met its objectives.
   (h) "Permanently protect" means doing both of the following:
   (1) Recording a conservation easement, in a form approved in
advance in writing by the department, that prevents development,
prohibits inconsistent uses, and ensures that habitat for focal
species is maintained.
   (2) Providing secure, perpetual funding for management of the
land, monitoring, and enforcement.
   (i) "Sensitive species" means any special status species
identified by a state or federal agency, and any species for which
the department has determined that listing as endangered, threatened,
or a candidate is reasonably foreseeable within the term of the
framework.
   1852.  (a) The department may approve a regional conservation
framework pursuant to this chapter. A regional conservation framework
may be proposed by the department or any other public agency.
   (b) The purpose of a regional conservation framework shall be to
inform actions that would advance the conservation of focal species,
habitat, and other natural resources and to provide voluntary
guidance for one or more of the following:
   (1) Identification of wildlife and habitat conservation
priorities, including actions needed to address the impacts of
climate change and other wildlife stressors.
   (2) Investments in ecological resource conservation.
   (3) Infrastructure planning.
   (4) Identification of conservation priorities for land use
planning.
   (5) Identification of priority locations for compensatory
mitigation for impacts to species and natural resources.
   (c) A regional conservation framework shall include all of the
following:
   (1) An explanation of the conservation purpose of and need for the
framework.
   (2) The geographic area of the framework and rationale for the
selection of the area.
   (3) The focal species included in, and their current known or
estimated status within, the framework.
   (4) Important habitat, and other natural and seminatural resource
conservation elements within the framework area, including, but not
limited to, habitat connectivity and existing protected areas, and an
explanation of the criteria, data, and methods used to identify
those important conservation elements.
   (5) A summary of historic, current, and projected future stressors
and pressures in the framework area on the focal species, habitat,
and other natural resources.
   (6) Conservation goals and measurable objectives for the focal
species and important conservation elements identified in the
framework that address or respond to the identified stressors and
pressures.
   (7) Conservation actions, including a description of the general
amounts and types of habitat that, if restored or enhanced and
permanently protected, could achieve the conservation goals and
objectives.
   (8) A description of how the conservation actions and habitat
enhancements were prioritized and selected in relation to the
conservation goals and objectives.
   (9) An explanation of how the framework is consistent with or
complements any natural community conservation plan, federal habitat
conservation plan, state or federal recovery plan, or other approved
conservation strategy that overlaps with the framework area.
   (10) A description of how the framework's conservation goals and
objectives provide for adaptation opportunities against the effects
of climate change for the framework's focal species.
   (11) Incorporation and reliance on, and citation of, the best
available scientific information, and a brief analysis of gaps in
relevant scientific information.
   (12) A regional conservation assessment that provides context at
an ecoregional or subecoregional scale for the development of the
framework. If a regional conservation assessment has already been
prepared, the regional conservation framework may incorporate the
assessment by reference, and shall update or supplement the
assessment as necessary for the framework. A regional conservation
assessment shall do all of the following:
   (A) Identify and summarize relevant regional pressures, stressors,
and conservation priorities, including priority conservation areas
and habitat connectivity values, included in all of the following:
   (i) Conservation plans, such as the State Wildlife Action Plan and
natural community conservation plans.
   (ii) Analyses designed to identify areas of high biological
diversity, such as the Areas of Conservation Emphasis.
   (iii) Analyses designed to identify areas of high value for
habitat connectivity.
   (B) Identify the best available scientific information and
analyses, including geospatial information regarding the distribution
of species and natural communities.
   (C) Use spatial analysis to identify ecological relationships
between existing protected areas and priority conservation areas.
   (D) Use standard or prevalent vegetation classifications and
standard ecoregional classifications for terrestrial and aquatic data
to enable and promote consistency among regional conservation
assessments throughout California.
   (E) Be consistent with approved natural community conservation
plans, regional habitat conservation plans, and recovery plans within
the ecoregion or subecoregion included in the assessment.
   (F) Assess the climate change vulnerability of identified priority
conservation areas.
   (G) Compile input and summary priority data in a consistent format
that could be uploaded for interactive use in an Internet Web portal
and that would allow stakeholders to generate queries of
conservation values within the region.
   1853.  (a) The department may prepare or approve a regional
conservation framework, or approve the framework with amendments, for
an initial period of up to 10 years after finding that the framework
meets the requirements of Section 1852. The department may extend
the duration of an approved regional conservation framework for
additional periods of up to 10 years after finding that the framework
continues to meet the requirements of Section 1852.
   (b) It is the intent of this chapter to establish general
guidelines and requirements that allow sufficient flexibility to
develop each regional conservation framework based on the best
available information regarding the framework area.
   (c) (1) Prior to submitting a draft regional conservation
framework to the department for approval, a public agency proposing a
framework shall hold at least two public meetings to allow
interested persons and entities to receive information about the
proposed draft framework early in the process of preparing it and to
have an adequate opportunity to provide written and oral comments. At
least one of the public meetings shall be held at a location within
the framework area. If preparation of a regional conservation
framework was initiated before January 1, 2017, the public meetings
required under this section may be held after January 1, 2017, if
they are held at least 30 days before the framework is submitted to
the department for approval.
   (2) At least 30 days before holding public meetings to distribute
information about the development of a draft regional conservation
framework, a public agency proposing a framework shall provide notice
of the regional conservation framework public meetings as follows:
   (A) On the public agency's Internet Web site and any relevant
LISTSERV.
   (B) To each county or city within or adjacent to the regional
conservation framework area.
   (C) To each public agency, organization, or individual who has
filed a written request for the notice.
   (3) At least 60 days before submitting a draft regional
conservation framework to the department for approval, the public
agency proposing the framework shall notify the board of supervisors
in each county within the geographical scope of the framework and
provide the board of supervisors with an opportunity to submit
written comments.
   (4) After a draft regional conservation framework is submitted to
the department for approval, the department shall have 30 days within
which to deem the draft regional conservation framework complete or
to explain to the public agency submitting the framework what is
needed to complete the framework. Within 30 days of deeming a draft
regional conservation framework complete, the department shall make
the draft framework available to the public on its Internet Web site
for review and comment for a period of at least 30 days.
   (d) The department shall make all approved regional conservation
frameworks, including all updates to scientific information and
analyses used in a regional conservation framework, available on its
Internet Web site.
   (e) The department shall require the use of consistent metrics
that incorporate both the area and quality of habitat and other
natural resources in relation to a regional conservation framework's
conservation objectives to measure the net change resulting from the
implementation of conservation actions and habitat enhancements.
   1854.  (a) Regional conservation frameworks shall not affect the
authority or discretion of any public agency, except as specifically
provided in this chapter. Nothing in this chapter increases or
decreases the authority or jurisdiction of the department regarding
any land use, species, habitat, area, resource, plan, process, or
corridor.
   (b) The approval or existence of a regional conservation framework
or mitigation credit agreement pursuant to this chapter does not do
any of the following:
   (1) Modify in any way the standards for issuance of incidental
permits or concurrence determinations pursuant to Section 2081 or
2080.1, issuance of take authorizations pursuant to Section 2835, or
the issuance of lake or streambed alteration agreements pursuant to
Section 1602.
   (2) Establish a presumption under the California Environmental
Quality Act (Division 13 (commencing with Section 21000) of the
Public Resources Code) that the regional conservation framework
provides substantial evidence in connection with any determination of
whether a proposed project may or may not result in significant
environmental effects and does not in any way limit a lead agency's
or responsible agency's discretion to determine, based on
project-specific information, whether a proposed project may or may
not result in significant environmental effects.
   (3) Prohibit or authorize any project or project impacts.
   (4) Create a presumption or guarantee that any proposed project
will be approved or permitted, or that any proposed impact will be
authorized, by any state or local agency.
   (5) Create a presumption that any proposed project will be
disapproved or prohibited, or that any proposed impact will be
prohibited, by any state or local agency.
   (6) Alter or affect, or create additional requirements for, the
general plan of the city, county, or city and county, in which it is
located. 
   (7) Have a binding or mandatory regulatory effect on private
landowners or project proponents. 
   1855.  (a) A conservation action or habitat enhancement that
measurably advances the conservation objectives of an approved
regional conservation framework may be used to create mitigation
credits that can be used to compensate for impacts to species,
habitat, and other natural resources, as provided in this section. To
be used to create these mitigation credits, a conservation action or
habitat enhancement shall be implemented successfully in advance of
the impacts. The requirements of this section apply only to the
generation of mitigation credits under mitigation credit agreements
pursuant to this section.
   (b) For a conservation action or habitat enhancement identified in
a regional conservation framework to be used to create mitigation
credits pursuant to this section, the regional conservation framework
shall include, in addition to the requirements of Section 1852, all
of the following:
   (1) An adaptive management and monitoring strategy for conserved
habitat and other conserved natural resources.
   (2) A process for updating the scientific information used in the
framework, and for tracking the progress of, and evaluating the
effectiveness of, conservation actions and habitat enhancements
identified in the framework in offsetting identified threats to focal
species and in achieving the framework's biological goals and
objectives, at least once every five years.
   (3) Identification of a public or private entity that will be
responsible for the periodic evaluation and for updating the
framework at least once every five years to incorporate the best
available scientific information and analyses.
   (c) A mitigation credit created in accordance with an approved
regional conservation framework may be used for the following:
   (1) To compensate for take or other adverse impacts of activities
authorized pursuant to Chapter 1.5 (commencing with Section 2050) of
Division 3 within the regional conservation framework area.
   (2) To reduce adverse impacts to fish or wildlife resources, or
both, from activities authorized pursuant to Chapter 6 (commencing
with Section 1600) within the regional conservation framework area to
less than substantial.
   (3) To mitigate significant effects on the environment within the
regional conservation framework area pursuant to the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code) and Guidelines for
Implementation of the California Environmental Quality Act (Chapter 3
(commencing with Section 15000) of Division 6 of Title 14 of the
California Code of Regulations).
   (d) The department shall ensure the long-term durability of a
habitat enhancement. If a habitat enhancement is used to provide
compensatory mitigation, the habitat enhancement shall remain in
effect for at least as long as the impact that is being mitigated.
   (e) To create mitigation credits pursuant to this section, a
person or entity, including a state or local agency, shall enter into
a mitigation credit agreement with the department. The mitigation
credit agreement shall establish the type and number of mitigation
credits created by the conservation action or habitat enhancement and
the terms and conditions under which the mitigation credits may be
used. The person or entity may create and use, sell, or otherwise
transfer the mitigation credits upon department approval that the
credits have been created in accordance with the agreement. To enter
into a mitigation credit agreement with the department, a person or
entity shall submit a draft mitigation credit agreement to the
department for its review, revision, and approval. The department may
enter into a mitigation credit agreement if it determines that the
mitigation credit agreement does all of the following:
   (1) Provides contact information for, and establishes the
qualifications of, the person or entity entering into the agreement,
the entity that will manage the site of the conservation action or
habitat enhancement, and any contractors or consultants.
   (2) Fully describes the proposed conservation actions or habitat
enhancements.
   (3) Identifies the location of the conservation actions or habitat
enhancements, including a location map, address, and size of the
site where the proposed conservation action or habitat enhancement
will be implemented.
   (4) Provides color aerial and ground-level photographs that
reflect current conditions on the site and surrounding properties.
   (5) Explains how the mitigation credits will be created,
including, but not limited to, information regarding proposed
ownership arrangements, long-term management strategy, and any phases
of implementation.
   (6) Includes a natural resources evaluation that documents biotic
and abiotic baseline conditions, including past, current, and
adjacent land uses, vegetation types, species information,
topography, hydrology, and soil types.
   (7) Identifies public lands and permanently protected lands in the
vicinity of the conservation actions or habitat enhancements.
    (8) Fully describes the proposed type and quantity of mitigation
credits and the supporting rationale.
   (9) Explains how the proposed conservation actions or habitat
enhancements will measurably advance conservation objectives of the
regional conservation framework that have not yet been achieved.
   (10) Identifies metrics or indicators by which the proposed
conservation action or habitat enhancement's contribution to
achieving the framework's conservation goals and objectives can
feasibly be measured with existing technology. The net ecological
gain from the implementation of conservation actions and habitat
enhancements shall be reported using consistent metrics that measure
the increment of gain in the area and quality of habitat or other
natural resource values compared to baseline conditions, and measures
the increment of gain in relation to the regional conservation
framework's conservation objectives.
   (11) Describes the proposed landownership of the site or sites of
the conservation actions or habitat enhancements.
   (12) Includes a template conservation easement for the sites of
any conservation action and an explanation of how the long-term
durability of the sites of any habitat enhancements will be ensured.
   (13) Ensures that the implementation of the conservation action or
habitat enhancement, including long-term protection and management
of the site, will be funded in accordance with Chapter 4.6
(commencing with Section 65965) of Division 1 of Title 7 of the
Government Code.
   (14) Includes a template monitoring and long-term adaptative
management plan.
   (15) Explains the terms and conditions under which the proposed
mitigation credits may be sold or otherwise transferred and how the
proposed mitigation credits will be accounted for, including the
specific methods proposed for reporting and maintaining a record of
credit creation, release, and use, sale, or transfer.
   (16) Includes enforcement provisions.
   (17) Ensures that, for each site on which the conservation actions
or habitat enhancements will be implemented, the following shall be
prepared and submitted to the department for review for adequacy and
approval prior to implementation:
   (A) Site-specific conservation objectives of the conservation
actions or habitat enhancements and how they reflect a measurable
advancement of the conservation objectives of the regional
conservation framework.
   (B) Preliminary natural resources surveys that document biotic and
abiotic baseline conditions, including past, current, and adjacent
land uses, vegetation types, species information, topography,
hydrology, and soil types.
   (C) For conservation actions, the conservation easement that will
be used to permanently protect the site, and for habitat
enhancements, the instrument that will be used to ensure their
long-term durability.
   (D) A management plan that includes the short-term and long-term
management actions necessary to ensure that the conservation actions
or habitat enhancements achieve their site-specific conservation
objectives.
   (E) If mitigation credits are proposed to be created from habitat
enhancements or conservation actions that include restoration of
ecological resources, detailed plans, including as-built designs and
ecological performance standards.
   (F) A property analysis record or other comparable economic
analysis of the funding necessary to support site-specific
maintenance activities, such as monitoring and reporting, in
perpetuity.
   (G) The sources for, and the terms under which, the endowment for
long-term protection, management, and enforcement will be funded.
   (H) A current preliminary report covering the site of the
conservation actions or habitat enhancements that identifies the
owner of the fee simple title and shows all liens, easements, and
other encumbrances and depicts all relevant property lines,
easements, dedications, and other features.
   (I) A declaration of whether or not the proposed site has been or
is being used as mitigation, is designated or dedicated for park or
open space use, or designated for purposes that may be inconsistent
with habitat preservation.
   (J) Details of any public funding received for acquisition or
restoration of, or other purposes related to, the proposed site.
   (K) A phase I environmental site assessment of the site dated not
more than six months prior to the date of submission to the
department. This assessment shall be performed in accordance with the
ASTM International Standard E1527-05 "Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process" or any successive ASTM International standard active at the
time of the assessment.
   (18) Includes a proposed credit ledger and credit release schedule
that meets the requirements of subdivision (f).
    (19) Includes any other information, analysis, and legal or
financial assurances of implementation as the department deems
necessary or appropriate.
   (f) (1) The release of mitigation credits for use, sale, or
transfer under a mitigation credit agreement shall require the
department's approval in accordance with this subdivision.
   (2) The release of mitigation credits shall be tied to
performance-based milestones and achievement of ecological
performance standards. The credit release schedule for each
mitigation credit agreement shall reserve a substantial share of the
total credits for release after those ecological performance
standards are fully achieved.
   (3) The terms of the credit release schedule shall be specified in
the mitigation credit agreement. When conservation actions and
habitat enhancements are implemented and meet the performance-based
milestones specified in the credit release schedule, credits shall be
created in accordance with the credit release schedule. If a
conservation action or habitat enhancement does not meet those
performance-based milestones, the department may suspend the release
of credits, reduce the number of credits, or otherwise modify the
credit release schedule accordingly.
   (4) In order for mitigation credits to be released, the person or
entity that has entered into a mitigation credit agreement shall
demonstrate to the department that the appropriate performance-based
milestones for credit release have been met. The department shall
determine whether the
milestones have been met and the credits may be released.
   (g) Nothing in this chapter is intended to limit or impose
additional conditions on the creation or sale of mitigation credits
by a conservation bank or mitigation bank approved by the department
pursuant to Chapter 7.9 (commencing with Section 1797).
   (h) The creation of mitigation credits pursuant to this section
from a conservation action or habitat enhancement implemented within
the plan area of an approved natural community conservation plan
shall not duplicate or replace mitigation requirements set forth in
the natural community conservation plan and shall require the advance
written approval of the plan's implementing entity. Mitigation
credits created pursuant to this section may be used for covered
activities under an approved natural community conservation plan only
in accordance with the requirements of the plan. 
   (i) The department shall make project mitigation credit and
release information publicly available on the department's Internet
Web site. 
   1856.  The department may collect fees from a person or entity
that proposes to enter into a mitigation credit agreement, and from a
public agency that proposes a regional conservation framework, to
pay for all or a portion of the department's costs relating to the
mitigation credit agreement or proposed framework.
   1857.  The department may adopt guidelines and criteria to aid in
the implementation of Section 1855. Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code does not apply to the development, adoption, or amendment of
guidelines or criteria pursuant to this section. These guidelines and
criteria shall be posted on the department's Internet Web site.