Chapter 7.9. Conservation Bank And Mitigation Bank Applications And Fees of California Fish And Game Code >> Division 2. >> Chapter 7.9.
The Legislature finds and declares as follows:
(a) Mitigation banks and conservation banks provide for the
conservation of important habitats and habitat linkages, take
advantage of economies of scale that are often not available to
individualized mitigation projects, and simplify the state regulatory
compliance process while achieving conservation goals.
(b) The department authorizes the establishment of private and
public conservation and mitigation banks that can provide viable
consolidated mitigation for adverse impacts caused by projects. Banks
sell habitat or species credits to project proponents having
mitigation responsibilities that require compensation for impacts to
wetlands, threatened or endangered species, and other sensitive
resources. The state policy on conservation banks was established in
1995 by the Natural Resources Agency and the California Environmental
Protection Agency.
(c) In 2011, the department and other state and federal agencies,
including the United States Fish and Wildlife Service, the National
Marine Fisheries Service, the United States Army Corps of Engineers,
and the United States Environmental Protection Agency, renewed a
memorandum of understanding for the purpose of jointly establishing a
framework for developing and using combined or coordinated
approaches to mitigation and conservation banking in the state. The
memorandum of understanding includes provisions for the development
and continuous improvement of standardized banking program documents
and guidance. Existing standardized documents identified in the
memorandum of understanding include bank enabling instruments,
conservation easements, long-term management plans, and bank proposal
review checklists, among others.
(d) The department has properly excluded from being eligible as
mitigation and conservation banks those lands that are not suitable
to become banks, for reasons that include that the lands do not
support significant biological resources or are not biologically
viable, are subject to potentially inconsistent uses, encumbrances,
or requirements, or would not meet requirements of permits or
authorizations that require mitigation.
(e) Greater transparency is desired to ensure that mitigation
requirements of regulatory programs, permits, and authorizations are
fully met when employing conservation and mitigation banks, and that
the monitoring of banks to ensure long-term conservation of species
and habitats is scientifically valid.
(f) The private and public mitigation and conservation banks and
the private and public entities to which bank credits are sold should
fully fund the administrative and regulatory costs of the department
in providing banking program services, administration and oversight.
(g) The department has found that the establishment and use of
conservation and mitigation banks may result in added ecological
benefits and reduced administrative costs over the more traditional
forms of smaller, single-purpose mitigation projects.
(h) It is the intent of the Legislature that banking and all other
forms of mitigation for wildlife species comply with regulatory
requirements, are based on the best available scientific information,
can be implemented successfully, and have adequate funding to
achieve mitigation measures and be monitored for compliance and
effectiveness. The Legislature recognizes that mitigation and
conservation banking is important to the state because banks provide
regulatory efficiencies, environmental benefits, and economic
advantages. Properly developed and monitored banks have demonstrated
their value and efficacy and are important tools in mitigating
impacts to resources and in conserving a wide range of habitat lands.
For the purposes of this chapter, the following terms shall
have the following meanings:
(a) "Bank" means a conservation bank, mitigation bank, or
conservation and mitigation bank.
(b) "Bank enabling instrument" means a written agreement with the
department regarding the establishment, use, operation, and
maintenance of the bank.
(c) "Bank sponsor" means the person or entity responsible for
establishing and operating a bank.
(d) "Conservation bank" means a publicly or privately owned and
operated site that is to be conserved and managed in accordance with
a written agreement with the department that includes provisions for
the issuance of credits, on which important habitat, including
habitat for threatened, endangered, or other special status species,
exists, has been, or will be created to do any of the following:
(1) Compensate for take or other adverse impacts of activities
authorized pursuant to Chapter 1.5 (commencing with Section 2050) of
Division 3.
(2) Reduce adverse impacts to fish or wildlife resources from
activities, authorized pursuant to Chapter 6 (commencing with Section
1600) of Division 2, to less than substantial.
(3) Mitigate significant effects on the environment 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).
(4) Establish mitigation in advance of any impacts or effects.
(5) To the extent feasible and practicable, protect habitat
connectivity for fish and wildlife resources for purposes of this
section.
(e) "Conservation easement" means a perpetual conservation
easement, as defined by Section 815.1 of the Civil Code, covering the
real property that comprises the bank site.
(f) "Mitigation bank" means either of the following:
(1) A bank site or mitigation bank site as defined by Section
1777.2.
(2) Any publicly or privately owned and operated site, other than
those defined by Section 1777.2, on which wetlands exist, have been,
or will be created, and that is to be conserved and managed in
accordance with a written agreement with the department for any of
the purposes described in paragraphs (1) to (4), inclusive, of
subdivision (d).
(g) "Person" has the meaning set forth in subdivision (b) of
Section 711.2.
(h) "Prospectus" means a written summary of the proposed bank
containing a sufficient level of detail to support informed
department review and comment.
(a) (1) Any person interested in establishing any bank with
the department may elect to submit an optional draft prospectus for
review by the department. Any draft prospectus shall be accompanied
by a draft prospectus review fee of one thousand five hundred dollars
($1,500) to fund the reasonable cost of the department's review
services. The draft prospectus review, while optional, is intended to
identify potential issues early so that the potential bank sponsor
may attempt to address those issues prior to initiating the formal
review process. The draft prospectus is a brief proposal submitted
when scoping the concept of a bank, contemplating pursuing a bank
idea, or for those new to the banking process.
(2) No later than 30 calendar days after the department receives a
draft prospectus and review fee, the department shall make an
initial evaluation of the proposed concept and notify the person who
submitted the draft prospectus of potential issues identified by the
department.
(b) (1) Any person seeking to establish a bank with the department
shall submit a bank prospectus to the department together with a
prospectus review fee of ten thousand dollars ($10,000) to fund the
reasonable cost of the department's review services. If a draft
prospectus and the review fee have been submitted pursuant to
subdivision (a), then the review fee for the bank prospectus shall be
eight thousand five hundred dollars ($8,500) so as not to exceed a
total fee of ten thousand dollars ($10,000).
(2) The bank prospectus shall contain at least all of the
following information:
(A) The proposed bank name.
(B) Contact information, including, but not limited to, the bank
sponsor, property owner, and any consultants.
(C) A general location map, address, and the size of the proposed
bank in acres.
(D) A 7.5-minute United States Geological Survey map showing
proposed boundaries of the bank.
(E) Color aerial photographs that reflect current conditions on
the site of the proposed bank and surrounding properties.
(F) Description of how the bank will be established and operated,
including, but not limited to, proposed ownership arrangements,
long-term management strategy, and any phases.
(G) Qualifications of bank sponsor.
(H) Preliminary natural resources surveys that document biotic and
abiotic baseline conditions, including past, current, and adjacent
land uses, vegetation types, species information, topography,
hydrology, and soil types.
(I) Map of proposed bank service areas.
(J) Map depicting other conserved lands in the vicinity of the
proposed bank.
(K) Description of bank objectives that includes how the proposed
bank would contribute to connectivity and ecosystem function.
(L) A current preliminary report covering the site of the proposed
bank 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.
(M) A declaration of whether or not the proposed bank site has
been or is being used as mitigation, is designated or dedicated for
park or open space use, or designated for purposes that may be
inconsistent with habitat preservation.
(N) Details of any public funding received for acquisition or
restoration of, or other purposes related to, the proposed bank site.
(c) No later than 30 calendar days after the department receives a
bank prospectus and the prospectus review fee, the department shall
determine whether or not the prospectus is complete and provide
written notice of its determination to the person who submitted the
prospectus. If a prospectus is not complete, it may be made complete
and resubmitted.
(d) If the department determines that the prospectus is complete,
then within 90 calendar days of that determination, the department
shall determine whether or not the prospectus is acceptable and
notify the person who submitted the prospectus of the determination.
The department may request clarifying information during the
prospectus review process.
(e) (1) If the department determines that a bank prospectus is
acceptable then a bank agreement package may be submitted in
accordance with Section 1798.5.
(2) If the department determines that a bank prospectus is not
acceptable the department shall state the reasons for the
determination. The prospectus may be resubmitted in accordance with
subdivision (a) if further consideration is desired. Any resubmittal
must be accompanied by payment of a new prospectus review fee.
(f) The department may adopt and amend guidelines and criteria for
the purposes of this section pursuant to subdivision (b) of Section
1799.1.
(a) (1) If the department determines that a bank prospectus
is acceptable pursuant to Section 1798, the person seeking to
establish the bank may submit a bank agreement package to the
department. Pursuant to subdivision (b) of Section 1799.1, the
department may adopt and amend guidelines and criteria for the bank
agreement package, including, but not limited to, recommended
standard forms for bank enabling instruments or long-term management
plan and conservation easements.
(2) The bank agreement package shall be consistent with the
prospectus and contain at least all of the following information:
(A) The draft bank enabling instrument and all exhibits.
(B) Drafts of the interim management plan, long-term management
plan, bank closure plan, and, if applicable, a development or
construction plan for the bank.
(C) A draft conservation easement, or if potential state ownership
is contemplated by the department, a draft grant deed.
(D) A map and written description of the proposed bank service
area.
(E) A proposed credit ledger and credit release schedule for the
bank.
(F) A property analysis record or other comparable economic
analysis of the funding necessary to support bank maintenance
activities, such as monitoring and reporting, in perpetuity.
(G) Estimates of financial assurances and proposed forms of
security. Proposed forms of security may be either cash or a letter
of credit.
(H) A phase I environmental site assessment of the site of the
proposed bank dated not more than six months prior to the date the
bank agreement package is submitted to the department. This
assessment shall be performed in accordance with the American Society
of Testing and Materials Standard E1527-05 "Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process" or any successive ASTM standard active at the time of the
assessment.
(b) The department shall collect a fee of twenty-five thousand
dollars ($25,000) per bank agreement package to fund the cost of the
department's review services. The fee shall be collected at the time
the bank agreement package is submitted to the department.
(c) Within 30 calendar days following the department's receipt of
a bank agreement package and fee pursuant to subdivision (a), the
department shall determine whether or not the package is complete and
give written notice of the determination to the person who submitted
the package.
(1) If the department determines that the bank agreement package
is not complete, it may be made complete and resubmitted.
(2) If the department determines that the bank agreement package
is complete, within 90 calendar days of that determination, the
department shall determine whether or not it is acceptable and notify
the person who submitted the package of the determination. If the
department determines that the bank agreement package is not
acceptable, the department shall state the reasons.
(d) The department may request clarifying information during the
bank agreement review process.
(e) If the department needs supplemental information during its
review of the bank agreement package in order to fully evaluate the
proposed bank, the regional manager or departmental equivalent, or a
higher level department employee, shall provide the person seeking to
establish the bank a written request for the needed information.
Upon the department's receipt of the requested information, a new
90-day period shall begin during which the department shall determine
acceptability pursuant to paragraph (2) of subdivision (c). If the
department does not receive the requested information within 60
calendar days of the department's request, the bank agreement package
will be deemed unacceptable.
(f) If the person seeking to establish the bank proposes changes
to the bank agreement package that have not been solicited by the
department during its 90-day review period, including, but not
limited to, parties, number or type of credits, bank size, number or
type of species, credit release schedule, service area, design
change, or other changes as identified by the department as
necessitating additional review time, the department, acting through
the regional manager or department equivalent, or a higher level
department employee, shall assess a one-time fee of ten thousand
dollars ($10,000) to cover the reasonable cost of the department's
services in reviewing the changes. A new 90-day review period shall
begin upon the department's receipt of the proposed changes and the
associated review fee, during which it will determine acceptability
pursuant to paragraph (2) of subdivision (c).
(g) If the department determines that 90 days is insufficient time
to complete its review of the bank agreement package for reasons
including, but not limited to, the size, location, or complexity of
the bank, that the package includes a development or construction
plan, complexity of the bank agreement package, or substantial
variations from recommended standard forms, the department may extend
the 90-day period for reviewing the bank agreement package by an
additional 60 calendar days.
(h) If the department determines that a bank agreement package is
not acceptable, the package may be resubmitted in accordance with
subdivision (a) if further consideration is desired. Any resubmittal
shall be accompanied by payment of a new bank agreement package
review fee.
(a) Any person seeking to amend any bank shall submit to
the department a complete bank amendment package containing each of
the original bank agreement package documents, including any prior
amendments, as well as any documents proposed to be amended or that
would be affected by the proposed amendment. The department may adopt
and amend guidelines and criteria for the bank amendment package
pursuant to subdivision (b) of Section 1799.1.
(b) (1) Within 30 calendar days following its receipt of a draft
bank amendment package and any fee required by subdivision (c), the
department shall determine whether or not the package is complete and
give written notice of that determination to the person who
submitted the package.
(2) If the department determines that the bank amendment package
is complete, then within 90 calendar days of that determination, the
department shall determine whether or not the package is acceptable
and notify the person who submitted the package of that
determination. If the bank amendment package is determined not to be
acceptable, the determination shall state the reasons. The department
may request clarifying information during the bank amendment review
process. The department may extend the 90-day period for reviewing
the bank amendment package by an additional 60 days if the department
determines that 90 days is insufficient time to complete its review
of a bank amendment package for reasons that may include, but are not
limited to, the size, location, or complexity of the bank or bank
amendment documents, that the package includes a development plan, or
that there are substantial variations from recommended standard
forms.
(c) (1) The department shall collect a fee of either seven
thousand five hundred dollars ($7,500) or twenty-five thousand
dollars ($25,000) per bank amendment package to fund the reasonable
cost of the department's review services. The fee of seven thousand
five hundred dollars ($7,500) is intended to cover the reasonable
cost of the department's services in reviewing simple amendments,
such as a change in bank name, ownership change, address change, or
proposed decrease in the number of credits proposed. The fee of
twenty-five thousand dollars ($25,000) is intended to cover the
reasonable cost of the department's services in reviewing all other
amendments, including, but not limited to, requests for increase
change in service area, or increase in the number of credits. A
regional manager or department equivalent, or a higher level
department representative employee, shall determine which of the two
fees is appropriate and shall provide notification of that
determination to the person who submitted the request for bank
amendment package pursuant to paragraph (3).
(2) An initial fee of seven thousand five hundred dollars ($7,500)
shall be submitted to the department with the bank amendment
package.
(3) Within 30 calendar days following the department's receipt of
a bank amendment package and the initial fee, pursuant to paragraph
(2), the department shall determine whether or not the package is
complete and give written notice of the determination to the person
who submitted it and, if applicable, notice pursuant to paragraph (1)
that the person shall remit an additional fee of seventeen thousand
five hundred dollars ($17,500). If noticed by the department, the
additional fee of seventeen thousand five hundred dollars ($17,500)
shall be submitted to the department within 30 days of the notice. If
the additional fee is not received by this date, the review
timelines in this section shall be suspended until the fee is
received by the department.
(4) If the department determines that the bank amendment package
is not complete, the package may be made complete and resubmitted. If
the department determines that the bank amendment package is
complete, then within 90 calendar days of that determination and the
receipt of the additional fee pursuant to paragraph (3), if
applicable, the department shall determine whether or not the bank
amendment package is acceptable and notify the person who submitted
the package of the determination.
(d) (1) If the department determines that the bank amendment
package is not acceptable the determination shall state the reasons.
(2) The department may request clarifying information during the
bank amendment review process.
(e) If the department needs supplemental information during its
review of the bank amendment package in order to fully evaluate the
proposed amendment, the regional manager or department equivalent, or
a higher level department employee, shall provide the person seeking
to amend the bank, in writing, a written request for the needed
information. Upon the department's receipt of the requested
information, a new 90-day period shall begin during which the
department will determine acceptability pursuant to paragraph (4) of
subdivision (c). If the department does not receive the requested
information within 60 calendar days of the department's request, the
bank amendment package shall be deemed unacceptable.
(f) If the person seeking to amend the bank proposes changes to
the bank amendment package that have not been solicited by the
department during its the department's 90-day review period,
including, but not limited to, parties, number or type of credits,
bank size, number or type of species, credit release schedule,
service area, design change, or other changes as identified by the
department to require additional review time, the department, acting
through the regional manager or department equivalent, or a higher
level department employee, shall assess a one-time fee of ten
thousand dollars ($10,000) to cover the reasonable cost of the
department's services in reviewing the changes. A new 90-day review
period shall begin upon receipt of the proposed changes and the fee,
during which the department shall determine acceptability pursuant to
paragraph (4) of subdivision (c).
(g) If the department determines that 90 days is insufficient time
to complete its review of the bank amendment package for reasons,
including, but not limited to, the size, location, or complexity of
the bank or bank amendment package, that the package includes a
development or construction plan, or substantial variations from
recommended standard forms, the department may extend the 90-day
period for reviewing the bank amendment package by an additional 60
calendar days.
(h) If the department determines that a bank amendment package is
not acceptable, then the package may be resubmitted in accordance
with subdivision (a) if further consideration is desired. Any
resubmittal shall be accompanied by payment of all applicable bank
amendment package review fees.
A bank prospectus, agreement, or amendment package
submitted to the department, but not approved as of January 1, 2013,
shall be reviewed for completeness or acceptability in accordance
with the timelines provided by this chapter and only after the
department has collected all appropriate fees pursuant to this
chapter.
(a) Until the department has approved a bank, in writing,
and, if applicable, a conservation easement has been recorded on the
site, no bank shall be operative, vested, or final, nor bank credits
issued. No amendment to an approved bank shall be effective without
the written approval of the department.
(b) Following approval of a final bank agreement package and
establishment of a bank, the department shall conduct compliance
review activities as provided in the approved bank enabling
instrument.
(c) (1) The department shall establish and maintain a database
that allows bank sponsors to accurately update and add information
about mitigation and conservation banks. This data shall be available
on the department's Internet Web site or accessible by a link from
the department's Internet Web site. The available information shall
include, but is not limited to, the total number of each type of bank
credit, the types of credits sold or obligated, the number of
credits sold or obligated, the number of credits applied, the balance
of each type of credit remaining, the status of the species and
habitat at the bank, links to the bank's long-term management plans,
and links to the complete annual monitoring reports required by
departmental policy.
(2) Information contained in the database created pursuant to
former Chapter 9 (commencing with Section 1850) on January 1, 2011,
shall be incorporated into the database established pursuant to
paragraph (1).
(d) By January 1, 2014, and annually thereafter, the department
shall provide a report to the Legislature. The report shall include
the following information based on data from the previous calendar
year:
(1) Number of new bank applications, prospectuses, bank agreement
packages, and amendments received.
(2) Number of bank applications approved, rejected because not
complete, rejected because not acceptable, and withdrawn.
(3) Name of new or existing bank, geographic location, number of
acres, number of credits approved for each habitat type or species,
and number of credits sold.
(4) An accounting of fees collected pursuant to this chapter.
(5) A statement of whether or not the timelines for bank review in
this chapter were met.
(6) Other information determined by the department to be relevant
in assessing the effectiveness of the department's mitigation and
conservation banking program.
(e) (1) The department shall collect fees to pay for all or a
portion of the department's bank implementation and compliance costs.
(2) The department shall collect a total payment of sixty thousand
($60,000) per bank, apportioned by an amount that equals the ratio
of the number of credits released to the total number of credits in
the bank, and shall be identified in the bank enabling instrument.
Payments shall be due following each credit release no later than the
due date for the submission of the bank's annual report. The
payments shall be submitted following each credit release and no
later than the time of the submission of the bank's annual report.
The department may require the bank to cease selling credits and may
stop credit releases until these fees are paid in full. The
department shall assess a penalty of 10 percent of the amount of fees
due if there is a failure to remit the amount payable when due.
(a) The department shall annually adjust the fees in this
chapter pursuant to Section 713.
(b) Moneys received pursuant to this chapter shall be deposited in
a separate dedicated account within the Fish and Game Preservation
Fund and expended for the purposes of this chapter.
(c) The department shall adopt and amend guidelines and criteria
to implement this chapter. The department shall develop these
guidelines and criteria in coordination with interested parties,
including, but not limited to, bank sponsors, conservation
organizations, and federal and state bank approving agencies. The
guidelines shall incorporate all relevant documents and program
guidance, including, but not limited to, the 2011 Memorandum of
Understanding approved by the United States Fish and Wildlife
Service, the United States Army Corps of Engineers, and the United
States Environmental Protection Agency, for the purpose of jointly
establishing a framework for developing and using combined or
coordinated approaches to mitigation and conservation banking in
California. Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code shall not apply to the
development, adoption, or amendment, of guidelines or criteria
pursuant to this section. The guidelines and criteria shall be posted
on the department's Internet Web site.
(d) The costs of a conservation and mitigation banking program,
including, but not limited to, costs incurred by the department
during its guideline adoption and review, approval, establishment,
monitoring, and oversight of banks, shall be reimbursed from revenues
of conservation and mitigation bank application fees imposed
pursuant to Sections 1798.5, 1798.6, and 1799.