California Assembly Bill AB2087 Amended / Bill

 BILL NUMBER: AB 2087AMENDED 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. ____