Code Section Group

Fish and Game Code - FGC

DIVISION 2. DEPARTMENT OF FISH AND WILDLIFE [700 - 1950]

  ( Heading of Division 2 amended by Stats. 2015, Ch. 154, Sec. 21. )

CHAPTER 7.8. Sacramento-San Joaquin Valley Wetlands Mitigation Bank Act of 1993 [1775 - 1796]

  ( Chapter 7.8 added by Stats. 1993, Ch. 1254, Sec. 1. )

ARTICLE 3. Wetlands Mitigation Banks [295 - 300.4]
  ( Article 3 added by Stats. 1993, Ch. 1254, Sec. 1. )

1784.
  

(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 requirement.

(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 values.

(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 ability.

(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.

(Amended by Stats. 1996, Ch. 37, Sec. 1. Effective January 1, 1997.)

1785.
  

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.

(Added by Stats. 1993, Ch. 1254, Sec. 1. Effective January 1, 1994.)

1786.
  

(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 its boundary.

(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 chapter.

(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 (A).

(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.

(Added by Stats. 1993, Ch. 1254, Sec. 1. Effective January 1, 1994.)

1787.
  

(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.

(Added by Stats. 1993, Ch. 1254, Sec. 1. Effective January 1, 1994.)

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