Bill Text: CA AB2087 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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
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
BILL NUMBER: AB 2087 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 16, 2016
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 framework, in consultation with
applicable local agencies that have land use authority, for the
purpose of informing conservation actions and habitat enh
ancement actions that would advance the conservation of focal species
and providing voluntary guidance for various activities. The bill
would require the framework to contain specified
information, including information and would authorize
the framework to include a regional conservation
assessment. assessment proposed by the department or
any other public agency and approved by the department. 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 a public meeting 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,
action and a habitat enhancement, as defined,
enhancement action that measurably advance the
conservation objectives of an approved framework and that meet other
specified requirements, requirements to
be used to create mitigation credits that may
credits. The bill would authorize these mitigation credits to
be used, within the framework area,
used to fulfill compensatory mitigation requirements established
under any state or federal environmental law, as determined by the
applicable local, state, or federal regulatory agency, including
compensatory mitigation requirements 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
agreement, proposed framework.
framework, or proposed regional conservation assessment.
The bill would authorize the department to adopt guidelines and
criteria to aid in the implementation of the mitigation
credit these provisions and would exempt the
adoption of these guidelines and criteria from the Administrative
Procedure Act. The bill would require the department to submit a
report regarding the implementation of these provisions to the
Legislature on or before January 1, 2020. The bill would prohibit the
department from approving a regional conservation framework or
regional conservation assessment on or after January 1, 2020, and
from entering into a mitigation credit agreement on or after January
1, 2020.
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) "Compensatory mitigation" means actions taken to fulfill, in
whole or in part, mitigation requirements under state or federal law
or a court mandate.
(b)
(c) "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 an action to preserve or
to restore ecological resources, including habitat, natural
communities, ecological processes, and wildlife corridors, to protect
those resources permanently, and to provide for their perpetual
management, so as to help to achieve one or more
biological goals and objectives for those one
or more focal species. Conservation actions may include,
but are not limited to, actions to offset impacts to focal species.
(c)
(d) "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)
(e) "Focal species" means native
sensitive species within a regional conservation framework
area that are analyzed in the framework and will benefit from
conservation actions and habitat enhancement actions set
forth in the framework.
(e)
(f) "Habitat enhancement"
enhancement action" 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)
(g) "Performance-based milestones" means specifically
identified steps in the implementation of a conservation action or
habitat enhancement, enhancement action,
such as site protection, initiating implementation, completing
implementation, or achieving performance standards.
(g)
(h) "Performance standards" means observable or
measurable physical or biological attributes that are used to
determine if a conservation action or habitat enhancement action
has met its objectives.
(h)
(i) "Permanently protect" means doing both of the
following:
(1) Recording a conservation easement, in a form approved in
advance in writing by the department, or establishing perpetual
protection of la nd in a manner substantially similar to a
conservation easement and 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 legal enforcement.
(j) "Regional conservation assessment" means information and
analyses that document the important species, ecosystems, ecosystem
processes, protected areas, and linkages within an ecoregion to
provide the appropriate context for prioritized conservation
strategies and actions. Those assessments include information
critical to the identification of areas with greatest probability for
long-term ecosystem conservation success incorporating cobenefits of
ecosystem services, such as carbon, water, and agricultural lands. A
regional conservation assessment may be used to provide context at
an ecoregional or subecoregional scale to assist with the development
of a regional conservation framework.
(k) "Regional conservation framework" means information and
analyses prepared pursuant to this chapter to inform conservation
actions and habitat enhancement actions that would advance the
conservation of focal species, habitat, and other natural resources
and to provide voluntary guidance for the identification of wildlife
and habitat conservation priorities, investments in ecological
resource conservation, infrastructure planning, identification of
conservation priorities for land use planning, or identification of
priority locations for compensatory mitigation for impacts to species
and natural resources. Regional conservation frameworks are
voluntary and do not create, modify, or impose regulatory
requirements or standards, prescribe or prohibit land uses, establish
land use designations, or affect the land use authority of any
public agency. The preparation and use of regional conservation
frameworks for this guidance is voluntary.
(l) "Regional level" means the geographic scale of relevant
ecologically defined units such as ecoregions.
(i)
(m) "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. agency.
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. agency, in consultation with local agencies
that have land use authority within the geographic scope of the
regional conservation framework.
(b) The purpose of a regional conservation framework shall be to
inform conservation actions and habitat enhancement
actions that would advance the conservation of focal species,
habitat, and other natural resources
including the ecological processes, natural communities, and habitat
connectivity upon which those focal species depend, 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
areas 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. area, together with a
description of the surrounding ecoregions and any adjacent protected
habitat areas or linkages that provide relevant context for the
development of the framework.
(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, important ecological resources
and processes, natural communities, habitat, habitat
connectivity 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. resources, as
identified in the best available scientific information, including,
but not limited to, the State Wildlife Action Plan.
(6) Major water, transportation and transmission infrastructure
facilities, urban development areas, and county and city general plan
designations in the framework area.
(6)
(7) 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. pressures on focal species.
(7)
(8) Conservation actions, including a description of
the general amounts and types of habitat that, if preserved or
restored or enhanced and permanently
protected, could achieve the conservation goals and
objectives. objectives, and a description of how the
conservation actions and habitat enhancement actions were prioritized
and selected in relation to 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 summary of mitigation banks and conservation banks approved
by the department or the United States Fish and Wildlife Service
that are located within the framework area or whose service area
overlaps with the framework area.
(10)
(11) 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)
(12) Incorporation and reliance on, and citation of,
the best available scientific information, and a brief
analysis information regarding the framework area and
the surrounding ecoregion, including a brief description of
gaps in relevant scientific information.
information, and use of standard or prevalent vegetation
classifications and standard ecoregional classifications for
terrestrial and aquatic data to enable and promote consistency among
regional conservation frameworks throughout California.
(12) A regional conservation assessment that provides context at
an ecoregional or subecoregional scale for the development of the
framework. If
1853. (a) The department may approve a regional
conservation assessment pursuant to this chapter. A regional
conservation assessment may be proposed by the department or any
other public agency. However, a regional conservation assessment is
not required for department approval of a regional conservation
framework.
(b) If a regional conservation
assessment has already been prepared, the
that encompasses the area of a proposed regional conservation
framework may incorporate the assessment by reference, and
shall update or supplement the assessment as necessary for the
framework. A has already been approved by the
department, the framework shall explain how it has incorporated the
assessment information and analysis.
(c) A regional conservation
assessment shall do all of the following:
(A)
(1) Identify and summarize relevant regional
pressures, pressures and stressors,
including climate change vulnerability, and conservation
priorities, including priority conservation areas and habitat
connectivity values, included in all of the following:
(i)
(A) Conservation plans, such as the State Wildlife
Action Plan and approved natural community conservation
plans.
(ii)
(B) Analyses designed to identify areas of high
biological diversity, such as the Areas of Conservation Emphasis.
(iii)
(C) Analyses designed to identify areas of high value
for habitat connectivity.
(B)
(2) Identify the best available scientific information
and analyses, including geospatial information regarding the
distribution of species and natural communities.
(C)
(3) Use spatial analysis to identify ecological
relationships between existing protected areas and priority
conservation areas.
(D)
(4) 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)
(5) 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.
framework area.
(d) (1) A draft regional conservation assessment may be submitted
to the department with a draft regional conservation framework or
separately.
(2) If submitted with a draft regional conservation framework, the
draft regional conservation assessment shall be included in the
review process set forth in subdivision (c) of Section 1854.
(3) If submitted separately, the department shall have 30 days
within which to deem the draft regional conservation assessment
complete or to explain in writing to the public agency submitting the
assessment what is needed to complete the assessment. Within 30 days
of deeming a draft regional conservation assessment complete, the
department shall make the draft assessment available to the public on
its Internet Web site for review and comment for a period of at
least 30 days, following which the department may approve the
assessment, approve it with amendments, or disapprove it.
1853. 1854. (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
provide 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 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 in
writing 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.
(2) A public agency proposing a
framework shall hold at least two a
public meetings meeting to allow
interested persons and entities to receive information about the
proposed draft regional conservation
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 The public meetings
meeting shall be held at a location within
or near the framework area. If preparation of a regional
conservation framework was initiated before January 1, 2017,
the public meetings and a public meeting regarding
the framework that is consistent with the requirements of this
section was held before January 1, 2017, an additional public meeting
shall not be required. If preparation of a regional conservation
framework was initiated before January 1, 2017, and a public meeting
regarding the framework was not held before January 1, 2017, the
public mee ting required under this section may be
held after January 1, 2017, if they are it is
held at least 30 days before the framework is submitted to the
department for approval.
(2)
(3) At least 30 days before holding a public
meetings meeting to distribute
information about the development of a draft regional conservation
framework, a public agency proposing a framework shall provide notice
of the a regional conservation
framework public meetings meeting 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)
(4) At least 60 days before submitting a draft
final regional conservation framework to the
department for approval, the public agency proposing the framework
shall notify the board of supervisors and the city councils
in each county within the geographical scope of the framework
and provide the board of supervisors and the city councils
with an opportunity to submit written comments.
comments for a period of at least 30 days.
(4)
(5) After a draft final
regional conservation framework is submitted to the department for
approval, the department shall have 30 days within which to
deem approve the draft
final regional conservation framework complete
or to explain in writing 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. approve the
framework.
(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. enhancement actions.
1854. 1855. (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.
(c) Nothing in this chapter shall require a project proponent
seeking to provide compensatory mitigation pursuant to Section 1602,
2080.1, 2081, or 2835 or the California Environmental Quality Act
(Division 13 (commencing with Section 21000) of the Public Resources
Code) to undertake conservation actions or habitat enhancement
actions identified in a regional conservation framework; implement,
contribute to, fund, or otherwise comply with the actions described
in a regional conservation framework; require or otherwise compel a
project proponent to enter into a mitigation credit agreement; or use
or purchase mitigation credits established pursuant to this chapter
to satisfy the compensatory mitigation requirements.
1855. 1856. (a) A conservation
action or habitat enhancement action 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 focal species and other
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
creation of mitigation credits under mitigation credit
agreements pursuant to this section. section
and do not establish requirements for other forms of compensatory
mitigation.
(b) For a conservation action or habitat enhancement action
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 enhancement actions 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. 10 years, until
all mitigation credits are used.
(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. updates and evaluation
required pursuant to paragraph (2).
(c) A mitigation credit created in accordance with an
approved regional conservation framework may be used for the
following: this section may be used to fulfill, in
whole or in part, compensatory mitigation requirements established
under any state or federal environmental law, as determined by the
applicable local, state, or federal regulatory agency, including, but
not limited to, 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. enhancement action.
If a habitat enhancement action is used to
provide compensatory mitigation, create one or more
mitigation credits pursuant to this section, the habitat
enhancement action shall remain in effect for
at least as long as the impact that is being
mitigated. until the site of the environmental impact
is returned to preimpact ecological conditions.
(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
action and the terms and conditions under which the
mitigation credits may be used. Mitigation credits shall not be
created on a site that has already been permanently protected and has
been used, or is currently in use, to fulfill compensatory
mitigation requirements for one or more projects. 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, enhancement action,
and any contractors or consultants.
(2) Fully describes the proposed conservation actions or habitat
enhancements. enhancement actions and
explains how, and to what extent, they will measurably advance
conservation objectives of the regional conservation framework that
have not yet been achieved.
(3) Identifies the location of the conservation actions or habitat
enhancements, enhancement actions,
including a location map, address, and size of the site where the
proposed conservation action or habitat enhancement action
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) Identifies mitigation banks and conservation banks approved by
the department as a mitigation alternative and explains how
available mitigation credits at those banks will be purchased or used
in combination with the mitigation credits created under the
mitigation credit agreement or, if those available mitigation credits
will not be purchased or used, why they will not be purchased or
used.
(6)
(7) 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)
(8) Identifies public lands and permanently protected
lands in the vicinity of the conservation actions or habitat
enhancements. enhancement actions.
(8)
(9) 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
enhancement action'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
enhancement actions that include habitat restoration 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,
conditions described in the regional conservation framework,
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.
enhancement actions.
(12) Includes a template conservation easement
easement, or other instrument providing for perpetual protection
of land in a manner substantially similar to a conservation easement
approved in advance in writing by the department, for the
sites of any conservation action and an explanation of how the
long-term durability of the sites of any habitat
enhancements enhancement actions will be
ensured.
(13) Ensures that the implementation of the conservation action or
habitat enhancement, including enhancement
action will be adequately funded and that long-term protection
and management of the site, site will
be funded in accordance with Chapter 4.6 (commencing with Section
65965) of Division 1 of Title 7 of the Government Code.
Code or, if a state agency proposed to enter into a
mitigation credit agreement, other comparable funding mechanism
approved by the department.
(14) Includes a template monitoring and long-term
adaptative adaptive 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 enhancement actions
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 enhancement
actions and how they reflect a measurable advancement of the
conservation objectives of the regional conservation framework.
(B) Preliminary natural resources surveys by a qualified
biologist 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
easement, or other instrument providing for perpetual
protection of land in a manner substantially similar to a
conservation easement approved in advance in writing by the
department, that will be used to permanently protect the site,
and for habitat enhancements, enhancement
actions, 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 enhancement actions
achieve their site-specific conservation objectives.
(E) If mitigation credits are proposed to be created from habitat
enhancements enhancement actions 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 endowment, or for state agencies other
comparable funding mechanism approved by the department, 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
enhancement actions 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. Copies of documentation of any encumbrances that
may conflict with the conservation objectives of the proposed
conservation actions or habitat enhancement actions shall be included
with the preliminary title report.
(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 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. Performance-based milestones may
include, but are not be limited to, the following:
(A) Recording a conservation easement or establishing perpetual
protection in a manner substantially similar to a conservation
easement and approved in advance in writing by the department on the
site of a conservation action, or putting into place measures that
ensure the long-term durability of a habitat enhancement action in
accordance with subdivision (d).
(B) Completing construction of a habitat restoration action.
(C) Achieving temporal ecological performance standards for
habitat restoration, such as standards established for one year,
three years, or five years following the initiation of habitat
restoration.
(D) Fully achieving ecological performance standards.
(3) The terms of the credit release schedule shall be specified in
the mitigation credit agreement. When conservation actions and
habitat enhancements enhancement actions
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 action 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) (1) Mitigation credit agreements may be used to establish the
terms and conditions under which mitigation credits can be created by
projects that improve wildlife habitat, or that address stressors to
wildlife, to an extent that quantifiably exceeds compensatory
mitigation requirements established by the department for those
projects pursuant to Chapter 6 (commencing with Section 1600) or
Chapter 1.5 (commencing with Section 2050) of Division 3. Those
projects may include, but are not limited to, the construction of
setback levees that result in the creation of more floodplain or
riparian habitat than is required to compensate for construction
impacts or the construction of transportation facility improvements
that remove barriers to fish or wildlife movement and thereby improve
the quality of habitat or address stressors to wildlife to a greater
extent than is required to compensate for construction impacts. For
those projects, the project proponent may submit a draft mitigation
credit agreement that proposes the terms and conditions under which
mitigation credits may be created and used by or in conjunction with
those projects to the department for its review, revision, and
approval. The submission may occur concurrently with, or after, an
application submitted pursuant to Chapter 1.5 (commencing with
Section 2050) of Division 3 or a notice submitted pursuant to Chapter
6 (commencing with Section 1600) or may occur after the application
or notice is submitted. Where a draft mitigation agreement is
submitted concurrently with the application or notice, the department
shall review the draft mitigation credit agreement concurrently with
its review of the application or notice and shall, to the maximum
extent practicable, complete its review of both the notice or
application and the draft agreement concurrently.
(2) Mitigation credit agreements submitted to the department
pursuant to this subdivision may comply with the requirements of
subdivision (f) with a credit release schedule related to
construction of the project that will improve wildlife habitat, or
will address stressors to wildlife, to an extent that exceeds
compensatory mitigation requirements quantifiably. For those
projects, construction of the project may be a performance-based
milestone required by paragraph (2) of subdivision (f).
(g)
(h) 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)
(i) The creation of mitigation credits pursuant to this
section from a conservation action or habitat enhancement
action 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)
(j) The department shall make project mitigation credit
and release information publicly available on the department's
Internet Web site.
1856. 1857. 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, framework
or a regional conservation assessment, to pay for all or a
portion of the department's costs relating to the mitigation credit
agreement or agreement, proposed
framework. framework, or proposed assessment.
1857. 1858. The department may
adopt guidelines and criteria to aid in the implementation of
Section 1855. this chapter. 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.
1859. (a) The department shall submit a report to the Legislature
on or before January 1, 2020, regarding the implementation of this
chapter.
(b) The report required to be submitted pursuant to subdivision
(a) shall be submitted in compliance with Section 9795 of the
Government Code.
1860. The department shall not approve a regional conservation
framework or regional conservation assessment pursuant to this
chapter on or after January 1, 2020, and shall not enter into a
mitigation credit agreement pursuant to this chapter on or after
January 1, 2020.
____ CORRECTIONS Heading--Last amended date.
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