Article 3. Wetlands Mitigation Banks of California Fish And Game Code >> Division 2. >> Chapter 7.8. >> Article 3.
(a) The department, in cooperation with those agencies
specified in Section 1786, shall adopt regulations that establish
standards and criteria for the bank site qualification process, for
the evaluation of wetland habitat acreage and values created at the
bank sites, and for the operation and evaluation of bank sites, and
any other regulations that are necessary to implement this chapter.
These criteria shall require, at a minimum, that the newly created
wetland provide the hydrologic, vegetative, and wildlife
characteristics, including the food web components, of a naturally
occurring wetland system that is equal to the site being mitigated.
(b) With respect to bank site standards and operator
qualifications, the department shall consider, at a minimum, all of
the following criteria:
(1) A requirement that the bank site have a reliable, adequate,
and available water supply necessary to provide wetland values. For
wetlands dependent only on rainfall, rainfall satisfies this
(2) The relative ease or difficulty of converting uplands into
wetlands at the bank site.
(3) The anticipated maintenance necessary to sustain the recreated
and created wetlands at the bank site.
(4) The proximity of the bank site to other established preserves
or natural features historically associated with abundant wildlife
(5) The proximity of the bank site to urban or populated areas
that could reduce the bank site's long-term biological values.
(6) The demonstrated ability of the bank site operator to create,
administer, maintain, and protect the bank site in perpetuity in its
enhanced state, including financial, technical, and management
(7) The relative abundance or scarcity of the wetland type to be
created at the bank site.
(c) A bank site or mitigation bank site may include any lands on
which rice is grown as long as those lands are managed as ricelands
with the required enhanced wetland values if they otherwise qualify
under this chapter and either of the following conditions exist:
(1) The lands are lands on which rice was grown after January 1,
1996. For purposes of this paragraph, to qualify as new wetland
values, rice shall not have been grown on the lands for 10 years
before the application is submitted pursuant to Section 1785.
(2) The lands are lands on which rice was grown before January 1,
1996. These lands shall qualify only if there is an increase in
wetland habitat value that is equal to the site being mitigated. For
purposes of this paragraph, a wetland value shall only be provided
for lands on which rice was grown that are proposed for wetlands
mitigation for the period when that land is flooded between the
harvesting of rice and the planting of the next crop. This paragraph
shall apply only to lands that were not flooded after harvest between
January 1, 1982, and January 1, 1992.
(d) Any mitigation site established pursuant to subdivision (c)
may be replaced by a new site of an equal wetland value.
(e) This section shall not be construed to permit waters used to
flood rice fields in order to create wetlands mitigation to be
credited as beneficial to wildlife under federal law.
If any person desires to establish a wetlands mitigation bank
site under this chapter, the person shall apply to the department
for a determination that the bank site and the operator qualify under
the criteria established by the department pursuant to this chapter.
The determination that a bank site qualifies under this chapter is a
project for purposes of Section 21065 of the Public Resources Code.
(a) Before any wetlands are created on the bank site
qualified pursuant to Section 1785, the department shall coordinate
and shall be a signatory to a memorandum of understanding with the
operator. The United States Environmental Protection Agency, the
United States Army Corps of Engineers, the Fish and Wildlife Service
of the United States Department of the Interior, the Central Valley
Regional Water Quality Control Board, and the State Department of
Health Services or its designee, or any of them, may be signatories
by indicating to the department their interest in participating
within 90 days of being notified by the department of the department'
s intent to initiate the procedures described in this section. Any
county located in whole or in part in the Sacramento-San Joaquin
Valley may, by ordinance, require that it be a signatory to any
memorandum of understanding for a bank site to be established within
(b) The memorandum of understanding shall include, but is not
limited to, all of the following items:
(1) Identification of the mitigation bank site, including the
legal property description, acreage, types, and location of existing
wetlands within the boundaries of the bank site.
(2) An agreement, by each of the governmental agencies in
subdivision (a), that all new, successfully created wetland acreage
shall qualify to be credited against the approved removal or fill of
wetlands located in the qualifying urban area and within 40 miles of
the bank site and is consistent with the procedures set out in this
(3) An agreement by the operator to do both of the following:
(A) Maintain all wetland habitat within the bank in optimum
condition in perpetuity, barring an unforeseen natural catastrophe
that precludes the viability of wetlands.
(B) Establish a trust or bond in favor of the department that
provides sufficient funds to ensure administration, protection,
operation, and maintenance in perpetuity of the wetland habitat
acreage and values at the mitigation bank site if the operator
defaults in performing the duties required pursuant to subparagraph
(4) In the case of privately owned bank sites, identification of
the circumstances that would constitute a major breach of the
agreement and that would result in either the replacement of the
operator, or the passing of title from the owner to the state, or
both, including identification of procedures for adequate notice and
opportunity for the operator to be heard and to correct any breach.
(a) If the bank site owner is a public entity, that entity
shall pay annually to the county in which the property is located an
amount equal to the county taxes levied on the property at the time
title to the bank site is transferred to that entity. The public
entity shall also pay the assessments levied upon the property by any
irrigation, drainage, or reclamation district.
(b) Payments under this section shall be made on or before
December 10 of each year, except for newly acquired bank sites, for
which payments shall be made pursuant to subdivision (c).
(c) Payments for newly acquired bank sites shall be made within
one year of the date title to the property was transferred to the
state, prorated for the balance of the year from the date title was
transferred to the 30th day of June following the date title was
transferred, and, thereafter, payments shall be made on or before
December 10 of each year.