California Assembly Bill AB2087 Amended / Bill

 BILL NUMBER: AB 2087AMENDED BILL TEXT AMENDED IN ASSEMBLY MAY 31, 2016 AMENDED IN ASSEMBLY APRIL 5, 2016 INTRODUCED BY Assembly Member Levine FEBRUARY 17, 2016 An act to add  Article 4   Chapter 9  (commencing with  Section 2090) to Chapter 1.5 of   Section 1850) to  Division  3   2  of the Fish and Game Code, relating to fish and wildlife. LEGISLATIVE COUNSEL'S DIGEST AB 2087, as amended, Levine. Regional conservation frameworks. Existing law establishes the Department of Fish and Wildlife in the Natural Resources Agency. Under existing law, the department has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable populations of those species. The California Endangered Species Act prohibits the taking of an endangered, threatened, or candidate species, except as specified. Under the act, the department may authorize the take of listed species if the take is incidental to an otherwise lawful activity and the impacts are minimized and fully mitigated.  Existing law prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river,   stream, or lake, or from depositing certain material where it may pass into any river, stream, or lake, without first notifying the department of that activity, and entering into a lake or streambed alteration agreement if required by the department to protect fish and wildlife resources.  This bill would authorize the department, or any other public agency, to propose a regional conservation framework that would be required to contain specified information, including a regional conservation assessment. The bill would authorize the department to approve a regional conservation framework, or approve the framework with amendments, for a period of up to 5 years after certain public meetings and a public comment period regarding the proposed framework have been held and after it finds that the framework meets certain requirements. The bill would authorize a conservation action, as defined, and a habitat enhancement, as defined,  implemented in accordance with   that measurably advance   the conservation objectives of  an approved framework  and that meet   other specified requirements,  to be used to  fulfill, in whole or in part, compensatory mitigation requirements set forth in an incidental take permit issued by the department   create mitigation credits that may be used, within the framework area, to compensate for take or other adverse impacts of activities authorized  pursuant to the California Endangered Species  Act or compensatory mitigation requirements established by any state or local agency   Act, to reduce adverse impacts to fish and wildlife resources 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 or any regulatory program within the agency's jurisdiction, as prescribed. The   Act. To create these mitigation credits, the  bill would also authorize a conservation action or habitat enhancement implemented in accordance with an approved framework to be used to create mitigation credits under a written mitigation credit agreement between the department and the person or entity.   require a person or entity to enter into a mitigation credit agreement with the department that meets specified requirements. The bill would authorize the department to collect fees from a person or entity that proposes to enter into a mitigation credit agreement, and from a public agency that proposes a framework, to pay for all or a portion of the department's costs relating to the mitigation credit agreement or proposed framework.  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.   Article 4 (commencing with Section 2090) is added to Chapter 1.5 of Division 3 of the Fish and Game Code, to read: Article 4. Regional Conservation Frameworks   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   2090.   1850.  (a) The Legislature finds and declares that  there is a need   it would be beneficial  to identify wildlife and habitat conservation  needs   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 natural resources, including impacts to threatened and endangered species, other sensitive species, natural communities, ecological processes, and wildlife corridors. (b) The purpose of this  article   chapter  is to promote the  voluntary  conservation of natural resources, including biodiversity and ecological processes, in order to maintain the continued viability of biological communities and to enhance their 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 natural resources and to identify natural resource conservation  needs,   actions,  including actions needed to promote resiliency to the impacts of climate change and other wildlife and fisheries stressors. (c) In enacting this  article,   chapter,  it is the intent of the Legislature to promote conservation planning that identifies wildlife, fishery, and habitat conservation needs, including actions needed to promote the resiliency to the impacts of climate change and other wildlife stressors, in order to guide  voluntary  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.  2091.   1851.  For purposes of this  article:   chapter:  (a) "Areas of Conservation Emphasis" means the biodiversity analysis completed by the department in 2010, or the latest update of that analysis.  (b) "California Essential Habitat Connectivity Project" means the final report prepared jointly by the department and the Department of Transportation in February 2010.   (c)   (   b)  "Conservation action" means the permanent protection of habitat, and restoration and management actions on permanently protected habitat that help to offset the impacts of threats to  covered   focal  species and help to achieve biological goals and objectives for those  covered   focal  species.  A conservation action may include, but is not limited to, a conservation action implemented as part of a natural community conservation plan approved by the department pursuant to Chapter 10 (commencing with Section 2800) of Division 3, purchase of credits from a conservation or mitigation bank approved by the department pursuant to Chapter 7.9 (commencing with Section 1797) of Division 2, or purchase of credits from an in-lieu fee program approved by the department.   (d) "Covered   (   c)     "Focal  species" means those species within the  covered   framework  area that are both of the following: (1) Endangered, threatened, or candidate species pursuant to  this chapter   Cha   pter 1.5 (commencing with Section 2050) of Division 3  or other sensitive species. (2) Analyzed within and protected by conservation actions set forth within the framework.  (e)   (   d)  "Habitat enhancement" means an action to improve the quality of wildlife habitat, or to address risks or stressors to wildlife, that  has long-term   durability but  does not involve land acquisition or the permanent protection of habitat, such as improving in-stream flows to benefit fish species, enhancing habitat connectivity, or invasive species control or eradication.  A habitat enhancement may include, but is not limited to, a habitat enhancement implemented as part of a natural community conservation plan approved by the department pursuant to Chapter 10 (commencing with Section 2800) of Division 3, purchase of credits from a conservation or mitigation bank approved by the department pursuant to Chapter 7.9 (commencing with Section 1797) of Division 2, or purchase of credits from an in-lieu fee program approved by the department.  If a habitat enhancement is used to create   a mitigation credit   , "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)   (   e)  "Hydrologic Unit Code Watershed" means a watershed as described and delineated by the United States Geological Survey.  (g)   (   f)  "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 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  covered   focal  species is maintained. (2) Providing secure, perpetual funding for management of the land.  (h)   (   g)  "Pressure" means an anthropogenic or natural driver that could significantly change ecological conditions. Pressures may be positive or negative depending on intensity, timing, and duration.  (i)   (   h)  "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.  (j)   (   i)  "Stress" and "stressor" mean a degraded ecological condition resulting directly or indirectly from negative impacts of pressures, for example, habitat fragmentation.  (k)   (   j)  "USDA Ecological Subsection" means a subsection as described and delineated by the United States Department of Agriculture, the Forest Service and the Natural Resource Conservation Service. 2092.   1852.  (a) The department may approve a regional conservation framework pursuant to this  article.   chapter.  A regional conservation framework may be proposed by the department or any other public agency. (b) The purpose of a regional conservation framework shall be to  guide   provide voluntary guidance for  one or more of the following in ways that will enhance the long-term viability of native species, habitat, and other natural resources: (1) Identification of wildlife and habitat conservation  needs,   priorities,  including actions needed to address the impacts of climate change and other wildlife stressors. (2) Investments in natural resource conservation. (3) Infrastructure planning. (4) Identification of conservation priorities for land use planning. (5) Identification of priority locations for compensatory mitigation for impacts to species and natural resources. (c) A regional conservation framework shall include all of the following: (1) An explanation of the conservation purpose of and need for the framework. (2) The geographic area of the framework and rationale for the selection of the area. (3) The focal species included in, and their current known or estimated status within, the framework. (4) Other important species, habitat, and other natural and seminatural resource conservation elements within the framework area, and an explanation of the criteria, data, and methods used to identify those important conservation elements. (5) A summary of historic, current, and projected future stressors and pressures in the framework area on the focal species, habitat, and other natural resources. (6) Conservation goals and measurable objectives for the important conservation elements identified in the framework that address or respond to the identified stressors and pressures. (7) Conservation actions, including a description of the general amounts and types of habitat that, if restored or enhanced and permanently protected, could achieve the conservation goals and objectives. (8) A description of how the conservation actions and habitat enhancements were prioritized and selected in relation to the conservation goals and objectives. (9) An explanation of how the framework is consistent with or complements any natural community conservation plan, habitat conservation plan, recovery plan, and other conservation or recovery plan that overlaps with the framework area. (10) A description of how the framework's conservation goals and objectives provide for adaptation opportunities against the effects of climate change for species covered by the framework. (11) Incorporation and reliance on, and citation of, the best available scientific information, and a brief analysis of gaps in relevant scientific information. (12) A regional conservation assessment that provides context at an ecoregional or subecoregional scale for the development of the framework. If a regional conservation assessment has already been prepared, the regional conservation framework may incorporate the assessment by reference, and shall update or supplement the assessment as necessary for the framework. A regional conservation assessment shall do all of the following: (A) Identify and summarize relevant regional pressures, stressors, and conservation priorities, including priority conservation areas and habitat connectivity values, included in all of the following: (i) Conservation plans, such as the State Wildlife Action Plan and natural community conservation plans. (ii) Analyses designed to identify areas of high biological diversity, such as the Areas of Conservation Emphasis. (iii) Analyses designed to identify areas of high value for habitat  connectivity, such as the California Essential Habitat Connectivity Project.   connectivity.  (B) Identify the best available scientific information and analyses, including geospatial information regarding the distribution of species and natural communities. (C) Use spatial analysis to identify ecological relationships between existing protected areas and priority conservation areas. (D) Enable and promote consistency among regional conservation assessments throughout California by using standard or prevalent vegetation classifications and standard ecological subdivision classifications for terrestrial and aquatic data. (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) Briefly assess the climate change vulnerability of identified priority conservation areas. (G) Compile input and summary priority data in a consistent format that could be uploaded for interactive use in  a   an Internet  Web portal and would allow stakeholders to generate queries of conservation values in subregions within the region.  2093.   1853.  (a) The department may prepare or approve a regional conservation framework, or approve the framework with amendments, for a period of up to five years after finding that the framework meets the requirements of Section  2092.   1852.  (b) The level of detail necessary for each regional conservation framework shall be at the discretion of the department and shall be assessed independently for each framework, taking into account the requirements of Section  2092   1852  and the intended uses and scope of the framework. It is the intent of this  article   chapter  to establish general guidelines and requirements that allow sufficient flexibility to develop each regional conservation framework based on the best available information regarding the framework area. (c) (1) Prior to submitting a draft regional conservation framework to the department for approval, a public agency proposing a framework shall hold at least two public meetings to allow interested persons and entities to receive information about the  proposed  draft framework  early in the process of preparing it  and to have an adequate opportunity to provide written and oral comments. At least one of the public meetings shall be held at a location within the framework area.  A public agency shall provide public notice of the me   etings that shall include, at a minimum, notice to the county clerk of each county within the geographical scope of the framework, with a request to post the notice in the office of the county clerk, and publication in   at least one newspaper of general circulation.   (2) At least 60 days before submitting a draft regional conservation framework to the department for approval, the public agency proposing the framework shall notify the board of supervisors in each county within the geographical scope of the framework and provide the board of supervisors with an opportunity to submit written comments.   (2)   (   3)  Within 30 days of deeming a draft regional conservation framework complete, the department shall make the draft framework available to the public on its Internet Web site for review and comment for a period of at least 30 days. (d) The department shall make all approved regional conservation frameworks, including all updates to scientific information and analyses used in a regional conservation framework, available on its Internet Web site.  1854. (a) Regional conservation frameworks and mitigation agreements shall not affect the authority or discretion of any public agency, except as specifically provided in this chapter. Nothing in this chapter increases the authority or jurisdiction of the department to regulate 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) Establish a presumption under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) that any project's impacts are, or are not, potentially significant. (2) Prohibit or authorize any project or project impacts. (3) 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. (4) 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. (5) Alter or affect, or create additional requirements for, the general plan of the city, county, or city and county, in which it is located. (6) Have a binding or mandatory regulatory effect on private landowners or project proponents.   2094.   1855.  (a) A conservation action or habitat enhancement that measurably advances the conservation objectives of an approved regional conservation framework may be used to  fulfill, in whole or in part, compensatory mitigation requirements   create mitigation credits that can be used to compensate  for impacts to species, habitat, and other natural resources, as provided in this section. To be used  for compensatory mitigation,   to create mitigation credits,  a conservation action or habitat enhancement shall be implemented in advance of the impacts. (b) For a conservation action or habitat enhancement identified in a regional conservation framework to be used  for compensatory mitigation purposes   to create mitigation credits  pursuant to this section, the regional conservation framework shall include, in addition to the requirements of Section  2092,   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 evaluating the effectiveness of conservation actions and habitat enhancements identified in the framework offsetting identified threats to focal species and to achieve the framework's biological goals and objectives, at least once every five years. (3) Identification of a public or private entity that will be responsible for the periodic evaluation and for updating the framework periodically to incorporate the best available scientific information and analyses. (c) A  conservation action or habitat enhancement implemented   mitigation credit created  in accordance with an approved regional conservation framework may be used for the following:  (1) To fulfill, in whole or in part, compensatory mitigation requirements set forth in a permit issued pursuant to subdivision (b) of Section 2081 if the department determines that the conservation action or habitat enhancement meets the requirements of Section 2081.   (2) To fulfill, in whole or in part, compensatory mitigation requirements established by any state or local agency pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) or any regulatory program within the state or local agency's jurisdiction, if the agency determines that the conservation action or habitat enhancement meets California Environmental Quality Act requirements for mitigation for the potential environmental impacts of a proposed project, as identified in an environmental impact report or a mitigated negative declaration prepared for the project.   (d) The department shall ensure the long-term durability of a habitat enhancement. If a habitat enhancement is used to provide compensatory mitigation, the habitat enhancement shall remain in effect for at least as long as the impact that is being mitigated.   (e) A conservation action or habitat enhancement implemented in accordance with an approved regional conservation framework may be used to create mitigation credits under a written mitigation credit agreement between the department and the person or entity, including a state or local agency, that implements the conservation action or habitat enhancement.   (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 and wildlife resources 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)     To create mitigation credits pursuant to this section, a person or entity, including a state or local agency, shall enter into a mitigation credit agreement with the department.  The mitigation credit agreement shall establish the type and number of mitigation credits created by the conservation action or habitat enhancement and the terms and conditions under which the mitigation credits may be used. The person or entity may create and use,  or sell   sell,  or otherwise  transfer,   transfer  the mitigation  credits to offset environmental impacts,   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  the following   a draft mitigation credit agreement  to the department for its review, revision, and  approval:   approval. The department may enter into a mitigation credit agreement if it determines that the mitigation credit agreement provides all of the following:  (1) The person or entity's contact information. (2) A description of the proposed conservation action or habitat enhancement. (3) A location map, address, and size of the site where the proposed conservation action or habitat enhancement will be implemented. (4) Color aerial and ground-level photographs that reflect current conditions on the site and surrounding properties. (5) A draft of the proposed mitigation credit agreement that includes an explanation of how the proposed conservation action or habitat enhancement will be implemented and how the proposed mitigation credits will be created and used, including all of the following: (A) The proposed type and quantity of mitigation credits and the supporting rationale. (B) A proposed service area defined by a USDA Ecological Subsection or Hydrologic Unit Code Watershed unit. (C) An explanation of how the proposed conservation action or habitat enhancement is consistent with the regional conservation framework, including how the action will help to achieve the framework's biological goals and objectives. (D) Metrics or indicators by which the proposed conservation action or habitat enhancement's contribution to achieving the framework's conservation goals and objectives can feasibly be measured with existing technology. (E) The proposed landownership of the site of the conservation action or habitat enhancement. (F) How the site of the conservation action will be permanently protected and managed in perpetuity, including, if applicable, a draft conservation easement. (G) How the implementation of the conservation action or habitat enhancement, including long-term protection and management of the site, will be funded. (H) A draft of the long-term management plan for the site. (I) A draft long-term monitoring and adaptive management plan for the site. (J) Drafts of habitat restoration plans and performance criteria, if applicable. (K) An explanation of how the proposed mitigation credits will be accounted for, including the specific methods proposed for reporting and maintaining records of credit creation, release, and use,  sale   sale,  or transfer. (6) Other information, analysis, and legal or financial assurances of implementation as the department deems necessary or appropriate.  (f)   (e)  Nothing in this  article   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) of Division 2.   1797).   (g)   (f)  The creation of mitigation credits pursuant to this section from a conservation action or habitat enhancement implemented within the plan area of an approved natural community conservation plan shall not duplicate or replace mitigation requirements set forth in the natural community conservation plan and shall require the advance written approval of the plan's implementing entity.  (h) The approval of a regional conservation framework pursuant to this article does not authorize any project or project impacts, nor does it create any presumption or guarantee that a proposed project will be approved or permitted or that a proposed impact will be authorized by any state or local agency.   1856. The department may collect fees from a person or entity that proposes to enter into a mitigation credit agreement, and from a public agency that proposes a regional conservation framework, to pay for all or a portion of the department's costs relating to the mitigation credit agreement or proposed framework.