Top Kudos and Concerns about CA’s Resource Conservation Investment Strategies Program
At EPIC, we are interested in policies that deliver spectacular improvements in the speed of environmental progress. Done right, state regulations and policies that incentivize environmental credits from restoration can support the scaling and timely delivery of high-quality, equitable restoration outcomes. For example, North Carolina’s Division of Mitigation Services in lieu fee (ILF) program aggregates funding from permittees who need to offset their impacts to wetlands, streams, or water quality where an existing supply of credits does not exist. This decades-strong program has restored and/or protected over 4 million feet of stream and 29,000 acres of wetlands, and provided over $398 million in contracting for full delivery of restoration outcomes (see additional detail on the program in our recent report Purchasing Environmental Progress).
California’s Department of Fish and Wildlife (CDFW) has proposed changes to their program called the Resource Conservation Investment Strategies Program.
The non-regulatory Program promotes regional planning including identifying areas of greatest conservation value, and creates a pathway to developing mitigation credits aligned with regional priorities that can be used to mitigate impacts under state laws (CEQA, the California ESA, and the Lake and Streambed Alteration Program).
Additional detail about the program is provided at the bottom of the post - scroll down.
EPIC’s Top Kudos and Concerns about California’s Resource Conservation Investment Strategies Program (Program)
In response to CDFW’s request for comments on changes to the Program, EPIC compiled a list of kudos and concerns about the Program:
We think creating compensatory mitigation credits on public lands is a bad idea because it’s difficult to prove additionality, durability, and financial assurance of the mitigation (see our comments on the species banking ANPR for more detail). We appreciate that the Program attempts to address these concerns:
“If an MCA is on public lands or lands that are already protected or enhanced in some way, the number and types of credits will be based on the additional, clear and quantifiable, improvement or positive change gained through the implementation of the conservation and/or habitat enhancement actions on those lands.”
We hope these requirements are upheld. We would ask for CDFW to require an explanation for why mitigation on public lands is allowed if other in-advance mitigation is available.
The statement that “the full cost of the [compensatory mitigation on public lands] must be accounted for” should be required text in all compensatory mitigation policies! We would ask one additional aspect regarding “full costs”: that land costs are incorporated in credit price regardless of land ownership type when mitigation is for impacts on private lands. For example, this Pierce County (WA) wetland ILF provides a detailed breakout of their credit pricing calculations that includes land price as well as other costs. If land costs are not incorporated, as could be the case with MCA developed on public lands, mitigation prices will be artificially cheap because past taxpayer investments in owning and managing the land basically subsidize the credits.
The Program supports a preference for using existing in-advance mitigation. The Program requires an MCA to include consideration of established mitigation banks and if available in-advance credits are not being used: “the Credit Receipt shall include a section for each entity purchasing MCA credits to outline why they are not purchasing from an established bank with the same credits available.” We also think the guidance should create some kind of grandfather clause to immediately allow existing mitigation bank credits to be used for an RCIS, without requiring a formal amendment to the banking instrument.
Conversely, the text in the guidance erodes the catalyst for creating in-advance mitigation: “The use of MCA credits to mitigate for project-specific impacts will be at the discretion of the regulatory agency requiring the mitigation. They will determine the appropriateness of MCA credits to fulfill the mitigation obligations required in their permits.” An entity could invest in restoration but have no guarantee that their credits would be used. The text could note that appropriate existing in-advance credits &/or approved MCA credits will be considered the preferred mitigation method, and if another method is chosen, the agency will provide a justification for deviation from the preference.
Lack of target timelines and resources for MCA approval. Although the fee schedule associated with MCA indicates steps in the MCA approval process, we could find no mention of deadlines or target timelines for steps in the approval process. CDFW has already documented their delays in approvals of conservation banks, for which the agency has target timeframes and fees intended to provide sufficient resources. Imagine the delays in an approval process without target deadlines! Approval processes need some form of accountability, and target timeframes and transparency to the public are good ways to create this (see Virginia’s Permitting Evaluation and Enhancement Program [PEEP] for an example).
We applaud consideration of potential new credit types such as habitat connectivity, provided they are held to the same level of well-defined performance standards as federal wetland and species banks. Our observation is that agencies lack a process for approving new compensatory mitigation methods and decisions drag on for years. We would suggest making mention of a skeletal outline for how a new credit methodology would be approved by CDFW.
Increasing opportunities for tribal participation. EPIC has a body of work advocating for greater opportunities for tribes to participate in elements of compensatory mitigation (Promoting Tribal Roles in Providing Compensatory Mitigation Offsets, Tribal Compensatory Mitigation). The Program specifically authorizes tribes to propose an RCIS. This is a great example of amending policy to allow greater participation in conservation. The Program also notes that any person or entity can propose and create mitigation (/an MCA), which we applaud for upholding the principle of equivalent standards. We would recommend adding “tribe” to this statement: “To create mitigation credits, any person or entity, including a tribe, state, or local public agency, shall enter into an MCA with CDFW as the MCA sponsor.”
Why can’t MCA credits be approved as a joint credit within an existing approval process (e.g., for state or federal species or wetland mitigation banks)? Creating separate processes could create confusion and wasteful duplication of efforts.
There are many uncertainties in the guidance: Will the agencies actually approve a mitigation credit agreement in a timely manner?, Will agencies allow existing mitigation credits to be used?, If credits are created will the agencies require use of them? Adjustments made now could preclude messy implementation later.
Background on California’s Regional Conservation Investment Strategies Program
Unless otherwise indicated, information is from CDFW’s Regional Conservation Investment Strategies webpage
The ‘Program’
The Regional Conservation Investment Strategy pilot program (‘Program’) refers to the overarching “voluntary, non-regulatory regional planning process intended to result in higher-quality conservation outcomes… The Program consists of three components: regional conservation assessments (RCAs), regional conservation investment strategies (RCISs), and mitigation credit agreements (MCAs).”
RCISs
Regional Conservation Investment Strategies (RCISs) are “a voluntary, non-regulatory, and non-binding conservation assessment that… establishes biological goals and objectives at the species level and describes conservation actions and habitat enhancement actions that, if implemented, will contribute to those goals and objectives…”
MCAs
Mitigation Credit Agreements (MCAs) can be developed within an approved RCIS and are a way to create credits “that may be used as compensatory mitigation for impacts under the California Environmental Quality Act, the California Endangered Species Act, and the Lake and Streambed Alteration Program.”
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