Bill Text: CA AB2805 | 2021-2022 | Regular Session | Chaptered

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Bill Title: Department of Fish and Wildlife: advance mitigation and regional conservation investment strategies.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2022-09-22 - Chaptered by Secretary of State - Chapter 463, Statutes of 2022. [AB2805 Detail]

Download: California-2021-AB2805-Chaptered.html

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Assembly Bill No. 2805

CHAPTER 463

An act to amend Sections 1851, 1852, 1853, 1854, 1856, 1857, and 1858 of, and to repeal Sections 1859 and 1861 of, the Fish and Game Code, and to amend Section 800.6 of the Streets and Highways Code, relating to advance mitigation and regional conservation investment strategies.

[ Approved by Governor  September 22, 2022. Filed with Secretary of State  September 22, 2022. ]

LEGISLATIVE COUNSEL'S DIGEST

AB 2805, Bauer-Kahan. Department of Fish and Wildlife: advance mitigation and regional conservation investment strategies.

(1) 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. Existing law authorizes the department, or any other public agency, to propose a regional conservation investment strategy, to be developed in consultation with applicable local agencies that have land use authority, for the purpose of informing science-based nonbinding and voluntary conservation actions and habitat enhancement actions that would advance the conservation of focal species and provide voluntary nonbinding guidance for various activities. Existing law authorizes the department to approve a regional conservation investment strategy only if one or more state agencies request approval of the strategy through a letter sent to the Director of Fish and Wildlife, as prescribed. Existing law requires the strategy to contain specified information and authorizes inclusion of a regional conservation assessment proposed by the department or any other public agency, and approved by the department, in the strategy. Existing law authorizes the department to approve a regional conservation investment strategy or amended strategy for an initial period of up to 10 years after a public meeting and a public comment period regarding the proposed strategy or amended strategy have been held and after it finds that the strategy meets certain requirements.

This bill would additionally authorize a federally recognized tribe to propose a regional conservation investment strategy, as provided. The bill would eliminate a restriction on the department that authorizes the department to approve a regional conservation investment strategy only if one or more state agencies request approval through a letter sent to the Director of Fish and Wildlife and a requirement that a regional conservation investment strategy include an explanation of the extent that the strategy is consistent with any previously approved or amended strategy. The bill would require a regional conservation assessment to, among other things, be consistent with and complement any regional federal habitat conservation plan that overlaps with the ecoregion or subecoregion included in the assessment. The bill would make various changes to provisions requiring the department or public agency, as specified, to provide notice, hold public meetings, and provide for, receive, and respond to public comment during the public comment period before approving a regional conservation investment strategy or amended strategy.

(2) Existing law authorizes a conservation action or a habitat enhancement action that measurably advances the conservation objectives of an approved strategy and that meets other specified requirements to be used to create mitigation credits. Existing law authorizes these mitigation credits to be 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, as provided. To create these mitigation credits, existing law requires a person or entity to enter into a mitigation credit agreement with the department that meets specified requirements. Existing law prohibits 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. Existing law authorizes the department to adopt guidelines and criteria to aid in the implementation of these provisions. Existing law requires the department to submit a report regarding the implementation of these provisions to the Legislature on or before January 1, 2020. Existing law prohibits the department from approving more than 8 regional conservation investment strategies.

This bill would require a regional conservation investment strategy, in order to create a mitigation credit, to include an outline for adaptive management and monitoring of conserved habitat and a process to track and evaluate conservation actions and habitat enhancement actions of the strategy, as specified. The bill would authorize the department to approve a combination of mitigation credit agreements with other instruments or agreements for the purpose of creating mitigation credits, as provided. The bill would make various changes to provisions requiring the department to provide public notice before approving mitigation credit agreements. The bill would also authorize the use, sale, or transfer of mitigation credits established under a mitigation agreement approved by the department, regardless of the duration or expiration of the regional conservation strategy that established those credits. The bill would eliminate the prohibitions on the duplication or replacement of mitigation requirements set forth in an approved natural community conservation plan and on the department approving more than 8 regional conservation investment strategies.

(3) Existing law requires the department to collect fees or other compensation from a person or entity that proposes to enter into a mitigation credit agreement, and from a public agency that proposes a regional conservation strategy or regional conservation assessment, to pay for all or a portion of the department’s costs relating to the mitigation credit agreement, proposed strategy, or proposed assessment.

This bill would establish the Fish and Wildlife Regional Conservation Investment Strategy Program Fund in the state treasury. The bill would authorize the department to collect fees or other compensation from a federally recognized tribe, in addition to a public agency, that proposes a regional conservation strategy or assessment, as provided, and would direct the department to deposit these and the mitigation credit agreement fees into the fund.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1851 of the Fish and Game Code is amended to read:

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.

(c) “Conservation action” means 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 one or more focal species. Conservation actions may include, but are not limited to, actions to offset impacts to focal species.

(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.

(e) “Draft natural community conservation plan” means a substantially complete draft of a natural community conservation plan that is released after January 1, 2016, to the general public, plan participants, and the department.

(f) “Focal species” means sensitive species within a regional conservation investment strategy area that are analyzed in the strategy and will benefit from conservation actions and habitat enhancement actions set forth in the strategy.

(g) “Habitat 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.

(h) “Performance-based milestones” means specifically identified steps in the implementation of a conservation action or habitat enhancement action, such as site protection, initiating implementation, completing implementation, or achieving performance standards.

(i) “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.

(j) “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 land in a manner consistent with draft or approved natural community conservation plans within the area of the applicable regional conservation investment strategy 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 and defense.

(k) “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 nonbinding, voluntary conservation strategies and actions. Those assessments include information for 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 investment strategy. A regional conservation assessment is nonbinding, voluntary, and does not create, modify, or impose regulatory requirements or standards, regulate the use of land, establish land use designations, or affect the land use authority of, or the exercise of discretion by, any public agency. The preparation and use of a regional conservation assessment is voluntary.

(l) “Regional conservation investment strategy” means information and analyses prepared pursuant to this chapter to inform nonbinding and voluntary conservation actions and habitat enhancement actions that would advance the conservation of focal species, habitat, and other natural resources and to provide nonbinding voluntary guidance for the identification of wildlife and habitat conservation priorities, investments in ecological resource conservation, or identification of locations for compensatory mitigation for impacts to species and natural resources. Regional conservation investment strategies are intended to provide scientific information for the consideration of public agencies, are voluntary, and do not create, modify, or impose regulatory requirements or standards, regulate the use of land, establish land use designations, or affect the land use authority of or exercise of discretion by, any public agency. The preparation and use of regional conservation investment strategies for this guidance is voluntary.

(m) “Regional level” means the geographic scale of relevant ecologically defined units such as ecoregions.

(n) “Sensitive species” means any special status species identified by a state or federal agency.

SEC. 2.

 Section 1852 of the Fish and Game Code is amended to read:

1852.

 (a) The department may approve a regional conservation investment strategy pursuant to this chapter. A regional conservation investment strategy may be proposed by the department or any other public agency or federally recognized tribe and shall be developed after consulting with local agencies that have land use authority within the geographic area of the regional conservation investment strategy.

(b) The purpose of a regional conservation investment strategy shall be to inform science-based nonbinding and voluntary conservation actions and habitat enhancement actions that would advance the conservation of focal species, including the ecological processes, natural communities, and habitat connectivity upon which those focal species depend, and to provide nonbinding voluntary guidance for one or more of the following:

(1) Identification of wildlife and habitat conservation priorities, including actions to address the impacts of climate change and other wildlife stressors.

(2) Investments in resource conservation.

(3) Infrastructure.

(4) Identification of areas for compensatory mitigation for impacts to species and natural resources.

(c) A regional conservation investment strategy shall include all of the following:

(1) An explanation of the conservation purpose of and need for the strategy.

(2) The geographic area of the strategy and rationale for the selection of the area, together with a description of the surrounding ecoregions and any adjacent protected habitat areas and linkages that provide relevant context for the development of the strategy.

(3) The focal species included in, and their current known or estimated status within, the strategy area.

(4) Important resource conservation elements within the strategy area, including, but not limited to, important ecological resources and processes, natural communities, habitat, 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 strategy area, including climate change vulnerability, on the focal species, habitat, and other natural resources, as identified in the best available scientific information, including, but not limited to, the State Wildlife Action Plan.

(6) Consideration of major water, transportation and transmission infrastructure facilities, urban development areas, and city, county, and city and county general plan designations that accounts for reasonably foreseeable development of major infrastructure facilities, including, but not limited to, renewable energy and housing in the strategy area.

(7) A statement explaining how the strategy will be in compliance with all applicable laws and does not preempt the authority of state or local agencies, to implement infrastructure and urban development in local general plans.

(8) Conservation goals and measurable objectives for the focal species and important conservation elements identified in the strategy that address or respond to the identified stressors and pressures on focal species.

(9) Conservation actions, including a description of the general amounts and types of habitat that, if preserved or restored and permanently protected, could achieve the conservation goals and 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.

(10) Provisions ensuring that the strategy is consistent with and complements any draft natural community conservation plan, approved natural community conservation plan, or federal habitat conservation plan that overlaps with the strategy area.

(11) An explanation of whether and to what extent the strategy is consistent with any previously approved state or federal recovery plan, or other state or federal approved conservation strategy that overlaps with the strategy area.

(12) 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 strategy area or whose service area overlaps with the strategy area.

(13) A description of how the strategy’s conservation goals and objectives provide for adaptation opportunities against the effects of climate change for the strategy’s focal species.

(14) Incorporation and reliance on, and citation of, the best available scientific information regarding the strategy area and the surrounding ecoregion, including a brief description of gaps in relevant scientific 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 investment strategies throughout California.

(d) A regional conservation investment strategy shall compile input and summary priority data in a consistent format that could be uploaded for interactive use in an internet website and that would allow stakeholders to generate queries of regional conservation values within the strategy area.

(e) In addition to considering the potential to advance the conservation of focal species, regional conservation investment strategies shall consider all of the following:

(1) The conservation benefits of preserving working lands for agricultural uses.

(2) Reasonably foreseeable development of infrastructure facilities.

(3) Reasonably foreseeable projects in the strategy area, including, but not limited to, housing.

(4) Reasonably foreseeable development for the production of renewable energy.

(5) Draft or approved natural community conservation plans within the area of the applicable regional conservation investment strategy.

SEC. 3.

 Section 1853 of the Fish and Game Code is amended to read:

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. A regional conservation assessment is not required for department approval of a regional conservation investment strategy.

(b) If a regional conservation assessment that encompasses the area of a proposed regional conservation investment strategy has already been approved by the department, the strategy shall explain how and to what extent it has incorporated the assessment information and analysis.

(c) A regional conservation assessment shall do all of the following:

(1) Identify and summarize relevant regional pressures and stressors, including climate change vulnerability, conservation areas and habitat connectivity values, included in all of the following:

(A) Conservation plans, such as the State Wildlife Action Plan and approved natural community conservation plans.

(B) Analyses designed to identify areas of high biological diversity, such as the Areas of Conservation Emphasis.

(C) Analyses designed to identify areas for habitat connectivity.

(2) Identify the best available scientific information and analyses, including geospatial information regarding the distribution of species and natural communities.

(3) Use spatial analysis to identify ecological relationships between existing protected areas and conservation areas.

(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.

(5) Compile input and summary data in a consistent format that could be uploaded for interactive use in an internet website and that would allow stakeholders to generate queries of regional conservation values within the strategy area.

(6) Be consistent with and complement any draft natural community conservation plans, approved natural community conservation plans, regional federal habitat conservation plans, and approved recovery plans that overlap with the ecoregion or subecoregion included in the assessment.

(7) Consider existing major water, transportation, and transmission infrastructure facilities in the assessment area and account for reasonably foreseeable development of major infrastructure facilities, including, but not limited to, renewable energy and housing.

(8) Include a statement explaining how the assessment will be in compliance with all applicable laws and does not preempt the authority of state or local agencies, to implement infrastructure and urban development in local general plans.

(9) Include an explanation of whether, and to what extent, the assessment is consistent with any previously approved assessment or amended assessment, state or federal recovery plan, or other state or federal approved conservation strategy that overlaps with the assessment area.

SEC. 4.

 Section 1854 of the Fish and Game Code is amended to read:

1854.

 (a) The department may prepare or approve a regional conservation investment strategy, or approve an amended strategy, for an initial period of up to 10 years after finding that the strategy meets the requirements of Section 1852. The department may extend the duration of an approved or amended regional conservation investment strategy for additional periods of up to 10 years after finding that the strategy continues to meet the requirements of Section 1852. For purposes of this section, an amended strategy means a complete regional conservation investment strategy submitted by a public agency or federally recognized tribe to amend substantially and to replace an approved strategy submitted by the public agency or federally recognized tribe.

(b) It is the intent of this chapter to establish requirements that provide sufficient flexibility to develop each regional conservation investment strategy based on the best available information regarding the strategy area.

(c) (1) A public agency or federally recognized tribe shall publish notice of its intent to create a regional conservation investment strategy. This notice shall be filed with the Governor’s Office of Planning and Research and the county clerk of each county that the regional conservation investment strategy is found in part or in whole. If preparation of a regional conservation investment strategy was initiated before January 1, 2017, this notice shall not be required.

(2) (A) A public agency or federally recognized tribe proposing a strategy or amended strategy shall hold a public meeting to allow interested persons and entities to receive information about the draft regional conservation investment strategy or amended strategy early in the process of preparing it and to have an adequate opportunity to provide comments. The public meeting shall be held at a location within or near the strategy area.

(B) In a draft regional conservation investment strategy or amended strategy submitted to the department for approval, the public agency or federally recognized tribe shall include copies of written public comments submitted to the public agency or federally recognized tribe at the public meeting and responses to those written comments.

(C) If preparation of a regional conservation investment strategy was initiated before January 1, 2017, and a public meeting regarding the strategy or amended strategy that is consistent with the requirements of this section was held before January 1, 2017, an additional public meeting shall not be required.

(D) If preparation of a regional conservation investment strategy was initiated before January 1, 2017, and a public meeting regarding the strategy was not held before January 1, 2017, the public meeting required under this section may be held after January 1, 2017, if it is held at least 30 days before the strategy is submitted to the department for approval.

(3) At least 30 days before holding a public meeting to distribute information about the development of a draft regional conservation investment strategy or amended strategy, a public agency or federally recognized tribe proposing a strategy shall provide notice of a regional conservation investment strategy or amended strategy public meeting as follows:

(A) On the public agency’s or federally recognized tribe’s internet website and any relevant LISTSERV.

(B) To each city, county, and city and county within or adjacent to the regional conservation investment strategy area.

(C) To the implementing entity for each natural community conservation plan or federal regional habitat conservation plan that overlaps with the strategy area.

(D) To each public agency, organization, or individual who has filed a written request for the notice, including any agency, organization, or individual who has filed a written request to the department for notices of all regional conservation investment strategy public meetings.

(4) After a draft regional conservation investment strategy or an amendment to a strategy is submitted to the department for approval, the department shall have 30 days to deem the draft regional conservation investment strategy or an amended strategy complete or to explain in writing to the public agency or federally recognized tribe submitting the strategy or amended strategy what is needed to complete the strategy or amended strategy. Within 30 days of deeming a draft regional conservation investment strategy or amended strategy complete, the department shall make the draft strategy or amended strategy available to the public on its internet website for review and comment for a period of at least 60 days and shall notify any public agency, organization, or individual who has filed a written request to the department for notices regarding draft regional conservation strategies. In a final regional conservation investment strategy or amended strategy submitted to the department for approval, the public agency or federally recognized tribe shall include responses to all written public comments submitted during the public comment period.

(5) Within 30 days of the department deeming that the draft regional conservation investment strategy or amended strategy is complete, concurrent with public review of the draft strategy, the public agency or federally recognized tribe proposing the investment strategy or amended strategy shall notify the board of supervisors and the city councils in each county within the geographical scope of the strategy and provide the board of supervisors and the city councils with an opportunity to submit written comments for a period of at least 60 days. In a final regional conservation investment strategy or amended strategy submitted to the department for approval, the public agency or federally recognized tribe shall include responses to all comments submitted to the public agency or federally recognized tribe during the comment period.

(6) After a final regional conservation investment strategy or amended strategy is submitted to the department for approval, the department shall have 60 days to approve the final regional conservation investment strategy or amended strategy or to explain in writing to the public agency or federally recognized tribe submitting the strategy or amended strategy what is needed to approve the strategy or amended strategy.

(d) The department shall make all approved regional conservation investment strategies, including all updates to scientific information and analyses used in a regional conservation investment strategy and any amendments to the strategy available on its internet website.

(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 investment strategy’s conservation objectives to measure the net change resulting from the implementation of conservation actions and habitat enhancement actions.

SEC. 5.

 Section 1856 of the Fish and Game Code is amended to read:

1856.

 (a) A conservation action or habitat enhancement action that measurably advances the conservation objectives of an approved regional conservation investment strategy 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. The requirements of this section apply only to the creation of mitigation credits under mitigation credit agreements pursuant to this 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 investment strategy to be used to create mitigation credits pursuant to this section, the regional conservation investment strategy shall include, in addition to the requirements of Section 1852, all of the following:

(1) An outline for adaptive management and monitoring of conserved habitat and other conserved natural resources, consistent with the goals and objectives of the regional conservation investment strategy. The outline shall guide the preparation of, and consistency among, monitoring and long-term adaptive management plans required pursuant to paragraph (14) of subdivision (g).

(2) (A) A process for persons and entities entering into mitigation credit agreements approved pursuant to the regional conservation investment strategy to provide information to the public agency or federally recognized tribe that proposed the regional conservation investment strategy to allow the public agency or federally recognized tribe to track the progress of, and evaluate the effectiveness of, conservation actions and habitat enhancement actions identified in the strategy in offsetting identified threats to focal species and achieving the strategy’s biological goals and objectives.

(B) The tracking and evaluation required pursuant to subparagraph (A) shall begin upon the creation of the first mitigation credit under a mitigation credit agreement approved pursuant to the regional conservation investment strategy. The evaluation required pursuant to subparagraph (A) shall be submitted to, and shall be considered by, the department before the department may extend the duration of an approved or amended regional conservation investment strategy pursuant to Section 1854. The evaluation may occur, and may be submitted to the department, no earlier than one year before the expiration of the regional conservation investment strategy. Tracking and evaluation shall be based on relevant, current, best available information and analyses, including, but not limited to, information reported under monitoring and long-term adaptive management plans required pursuant to paragraph (14) of subdivision (g).

(3) Identification of a public or private entity that will be responsible for the evaluation required pursuant to paragraph (2).

(c) If a person or public or private entity intends to create mitigation credits on multiple future sites over time, the person or entity may develop and submit an advance mitigation framework to the department for approval in a draft mitigation credit agreement pursuant to subdivision (g). Alternatively, the person or entity may submit an advance mitigation framework to the department for approval before submitting a draft mitigation credit agreement to the department and, if the advance mitigation framework is approved, may include it in a draft mitigation credit agreement. An advance mitigation framework shall include all of the following:

(1) A process and the terms and conditions on which the department will base its review and approval of mitigation credits on future sites.

(2) A description of the conservation actions or habitat enhancement actions that are consistent with, and will measurably advance the conservation objectives of, an approved regional conservation investment strategy, and will be used to create mitigation credits.

(3) A prioritization strategy for selecting future sites to implement the conservation actions or habitat enhancement actions described in the framework.

(d) (1) A mitigation credit created in accordance with 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.

(2) With the approval of the department, mitigation credit agreements may be combined with other instruments or agreements for the purpose of creating mitigation credits that may be used to fulfill, in whole or in part, compensatory mitigation requirements established in permits issued by one or more local, state, or federal regulatory agencies, as well as permits issued by the department.

(3) Mitigation credits approved by the department in accordance with this section may be used for, but are not limited to, the following:

(A) To compensate for take or other adverse impacts of activities authorized pursuant to Chapter 1.5 (commencing with Section 2050) of Division 3 within an approved regional conservation investment strategy area.

(B) To reduce adverse impacts to fish or wildlife resources, or both, from activities authorized pursuant to Chapter 6 (commencing with Section 1600) within an approved regional conservation investment strategy area to less than substantial.

(C) To mitigate significant effects on the environment within an approved regional conservation investment strategy 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).

(e) The department shall ensure the long-term durability of a habitat enhancement action. If a habitat enhancement action is used to create one or more mitigation credits pursuant to this section, the habitat enhancement action shall remain in effect at least until the site of the environmental impact is returned to preimpact ecological conditions.

(f) To create mitigation credits pursuant to this section, a person, or public or private entity, shall enter into a mitigation credit agreement with the department. The mitigation credit agreement shall identify the type and number of mitigation credits proposed to be created 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 permanent impacts 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.

(g) 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 or disapproval. Within 30 days of deeming a draft agreement complete, the department shall publish notice of the availability of the draft agreement by filing its notice with the Governor’s Office of Planning and Research and the city and county clerks of each county in which the agreement is applicable in part or in whole and shall make the draft agreement available to the public on its internet website, and to any public agency, organization, or individual who has filed a written request to the department for notices regarding agreements, for review and comment for a period of at least 60 days, following which the person or entity submitting the draft mitigation credit agreement proposal shall respond to written comments submitted during the public comment period, and the department may approve the agreement, approve it with revisions, or disapprove it. 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 action, and any contractors or consultants.

(2) Fully describes the proposed conservation actions or habitat enhancement actions and explains how, and to what extent, they will measurably advance conservation objectives of the regional conservation investment strategy that have not yet been achieved.

(3) Identifies the location of the conservation actions or habitat 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.

(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.

(8) Identifies public lands and permanently protected lands in the vicinity of the conservation actions or habitat enhancement actions.

(9) Fully describes the proposed type and quantity of mitigation credits and the supporting rationale. Mitigation credits created pursuant to this section shall directly correlate to the focal species and other species, habitat, and other natural resources protected by the conservation actions or habitat enhancement actions.

(10) Identifies metrics or indicators by which the proposed conservation action or habitat enhancement action’s contribution to achieving the strategy’s conservation goals and objectives can feasibly be measured with existing technology. The net ecological gain from the implementation of conservation actions and habitat 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 described in the regional conservation investment strategy, and measures the increment of gain in relation to the regional conservation investment strategy’s conservation objectives.

(11) Describes the proposed landownership of the site or sites of the conservation actions or habitat enhancement actions.

(12) Includes a template conservation easement, or other instrument providing for perpetual protection of land in a manner consistent with approved natural community conservation plans within the area of the applicable regional conservation investment strategy, for the sites of any conservation action and an explanation of how the long-term durability of the sites of any habitat enhancement actions will be ensured.

(13) Ensures that the implementation of the conservation actions or habitat enhancement actions will be adequately funded and that long-term protection and management of the sites will be funded in accordance with Chapter 4.6 (commencing with Section 65965) of Division 1 of Title 7 of the Government Code or, if a state agency proposed to enter into a mitigation credit agreement, another comparable funding mechanism approved by the department in accordance with an adopted statewide policy regarding funding for long-term management and operations of mitigation sites.

(14) Includes a template monitoring and long-term 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 enhancement actions will be implemented, information consistent with, pursuant to this chapter, the information required for a mitigation bank in paragraph (2) of subdivision (b) of Section 1798 and subparagraphs (B) to (H), inclusive, of paragraph (2) of subdivision (a) of Section 1798.5 shall be prepared and submitted to the department for review for adequacy and approval prior to implementation.

(18) Includes a proposed credit ledger and credit release schedule that meets the requirements of subdivision (h).

(h) (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. Once the department has approved the release of a mitigation credit, it may be used, sold, or transferred in accordance with the mitigation credit agreement regardless of the duration or expiration of the regional conservation investment strategy or strategies on which the mitigation credit agreement relied.

(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 shall include, but are not limited to, the following:

(A) Permanently protecting 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 (e).

(B) Completing construction of any proposed habitat restoration actions.

(C) Achieving temporal ecological performance standards for any proposed habitat restoration actions, 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 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 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.

(i) (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 (h) 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 (h).

(j) 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).

(k) 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 require the advance written approval of the plan’s implementing entity. This advance written approval may be provided in a letter from the implementing entity to the person or entity seeking a mitigation credit agreement with the department, or in any other form approved by the department.

(l) The department shall make project mitigation credit and release information, including the demonstration submitted pursuant to paragraph (4) of subdivision (h), publicly available on the department’s internet website.

SEC. 6.

 Section 1857 of the Fish and Game Code is amended to read:

1857.

 (a)  The Fish and Wildlife Regional Conservation Investment Strategy Program Fund is hereby established in the State Treasury.

(b) The department shall collect fees or other compensation from a person or entity that proposes to enter into a mitigation credit agreement, and from a public agency or federally recognized tribe that proposes a regional conservation investment strategy or a regional conservation assessment, to pay for all or a portion of the department’s costs relating to the mitigation credit agreement, proposed strategy, or proposed assessment. Fees received pursuant to this subdivision shall be deposited in the Fish and Wildlife Regional Conservation Investment Strategy Program Fund.

SEC. 7.

 Section 1858 of the Fish and Game Code is amended to read:

1858.

 (a) The department may adopt guidelines and criteria to aid in the implementation of 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. The department may post a draft of any proposed guidelines or guidelines amendment on its internet website for public review and comment. Adopted guidelines and criteria shall be posted on the department’s internet website.

(b) (1) The department shall provide an opportunity for review and comment on the draft guidelines or guidelines amendment for a reasonable period based on the complexity of the draft guidelines or guidelines amendment, but not less than 30 days. Review and comment shall not be required for annual updates to the fee schedule.

(2) The department shall give notice of the availability of the draft guidelines or guidelines amendment for review and comment to each of the following:

(A) A public agency or federally recognized tribe that has published notice of its intent to create a regional conservation investment strategy.

(B) A person or entity that has submitted a mitigation credit agreement.

(C) A public agency, organization, or individual who has filed a written request to the department for notices regarding draft guidelines.

SEC. 8.

 Section 1859 of the Fish and Game Code is repealed.

SEC. 9.

 Section 1861 of the Fish and Game Code is repealed.

SEC. 10.

 Section 800.6 of the Streets and Highways Code is amended to read:

800.6.

 (a) The funds in the Advance Mitigation Account created in Section 800.7 shall be used only to do the following:

(1) Purchase, or fund the purchase of, credits from mitigation banks, conservation banks, or in-lieu fee programs approved by one or more regulatory agencies. The department may also establish mitigation banks, conservation banks, or in-lieu fee programs, or fund the establishment of mitigation banks, conservation banks, or in-lieu fee programs, in accordance with applicable state and federal standards, if the department determines that those banks or in-lieu fee programs would provide appropriate mitigation of the anticipated potential impacts of planned transportation improvements identified pursuant to Section 800.8.

(2) Pay, or fund the payment of, mitigation fees or other costs or payments associated with coverage for the department’s or other transportation agency’s projects under natural community conservation plans approved pursuant to Chapter 10 (commencing with Section 2800) of Division 3 of the Fish and Game Code, or habitat conservation plans approved in accordance with the federal Endangered Species Act. The department shall, upon commencement of a regional conservation investment strategy pursuant to paragraph (3), provide written notification thereof to the executive administrative officer of any administrative draft natural community conservation plan, approved natural community conservation plan, or approved regional federal habitat conservation plan that overlaps the proposed area of the regional conservation investment strategy.

(3) Prepare, or fund the preparation of, regional conservation assessments and regional conservation investment strategies. Where a regional conservation investment strategy has been approved by the Department of Fish and Wildlife, the department may do either of the following:

(A) Enter into, or fund the preparation of, mitigation credit agreements with the Department of Fish and Wildlife; purchase credits from an established mitigation credit agreement; or implement, or fund the implementation of, conservation actions and habitat enhancement actions as needed to generate mitigation credits pursuant to those mitigation credit agreements.

(B) Acquire, restore, manage, monitor, enhance, and preserve lands, waterways, aquatic resources, or fisheries, or fund the acquisition, restoration, management, monitoring, enhancement, and preservation of lands, waterways, aquatic resources, or fisheries that would measurably advance a conservation objective in the regional conservation investment strategy if the department concludes that the action or actions could conserve or create environmental values that are appropriate to mitigate the anticipated potential impacts of planned transportation improvements.

(4) Where the advance mitigation mechanisms in paragraphs (1) to (3), inclusive, are not practicable, the department may implement advance mitigation, or fund the implementation of advance mitigation, in accordance with a programmatic mitigation plan pursuant to Section 800.9. No more than 25 percent of the funds in the Advance Mitigation Account may be allocated for this purpose over a four-year period.

(b) The department may use, or allow other transportation agencies to use, mitigation credits or values generated or obtained under the program to fulfill the mitigation requirements of planned transportation improvements if the applicable transportation agency reimburses the program for all costs of purchasing or creating the mitigation credits or values, as determined by the department. Those costs shall be calculated using total cost accounting and shall include, as applicable, land acquisition or conservation easement costs, monitoring and enforcement costs, restoration costs, transaction costs, administrative costs, contingency costs, and land management, monitoring, and protection costs.

(c) The department shall track all implemented advance mitigation projects to use as credits for environmental mitigation.

(d) Projects or plans prepared pursuant to this section that overlap with any approved natural community conservation plan or approved regional federal habitat conservation plan, shall be consistent with that plan and shall include an explanation of whether and to what extent they are consistent with any overlapping state or federal recovery plan, or other state-approved or federal-approved conservation strategy.

(e) 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. Individuals and entities eligible for coverage as a participating special entity under an approved natural community conservation plan may use mitigation credits created pursuant to this section only if the plan’s implementing entity declines to extend coverage to the covered activity proposed by the eligible individual or entity.

(f) By July 1, 2019, and biennially thereafter, the department, pursuant to Section 9795 of the Government Code, and notwithstanding Section 10231.5 of the Government Code, shall submit to the Legislature a report that describes to what extent the Advance Mitigation Program has accelerated the delivery of transportation projects. At a minimum, the report shall include the following:

(1) An accounting of the Advance Mitigation Account funds.

(2) Identification of expected state and federal resource and regulatory agency mitigation requirements for transportation projects utilizing the Advance Mitigation Program.

(3) A discussion of the extent that those requirements are satisfied using advance mitigation credits.

(4) The use of funds to prepare, or to fund the preparation of, regional conservation assessments and regional conservation investment strategies.

(5) Recommendations for maximizing the ability of the Advance Mitigation Program to satisfy state and federal mitigation requirements.

(g) By July 1, 2018, or one year after the initial Advance Mitigation Program investments have begun, whichever is earlier, and biennially thereafter, the Department of Fish and Wildlife shall, pursuant to Section 9795 of the Government Code, and notwithstanding Section 10231.5 of the Government Code, submit a report to the Legislature that describes the extent to which the Advance Mitigation Program has improved the quality and effectiveness of habitat mitigation provided by the department for transportation projects and makes related recommendations on how to maximize these attributes. The report shall also include recommendations on how to maximize the quality and effectiveness of habitat mitigation developed pursuant to the Advance Mitigation Program.

(h) Nothing in this article shall be construed to impose any restrictions or requirements on the department for activities that do not involve the utilization of Advance Mitigation Account funds. Nothing in this article shall be construed to require the department to use the Advance Mitigation Program.

(i) Prior to making any expenditure from the Advance Mitigation Account, the Director of Transportation shall make a determination and justification that the proposed expenditure is likely to accelerate project delivery of specific projects.