2009 California Fish and Game Code - Section 2800-2835 :: Chapter 10. Natural Community Conservation Planning Act

2800.  This chapter shall be known, and may be cited, as the Natural
Community Conservation Planning Act.

2801.  The Legislature finds and declares all of the following:
   (a) The continuing population growth in California will result in
increasing demands for dwindling natural resources and result in the
continuing decline of the state's wildlife.
   (b) There is a need for broad-based planning to provide for
effective protection and conservation of the state's wildlife
heritage while continuing to allow appropriate development and
growth.
   (c) Natural community conservation planning is an effective tool
in protecting California's natural diversity while reducing conflicts
between protection of the state's wildlife heritage and reasonable
use of natural resources for economic development.
   (d) Natural community conservation planning promotes coordination
and cooperation among public agencies, landowners, and other private
interests, provides a mechanism by which landowners and development
proponents can effectively address cumulative impact concerns,
promotes conservation of unfragmented habitat areas, promotes
multispecies and multihabitat management and conservation, provides
one option for identifying and ensuring appropriate mitigation that
is roughly proportional to impacts on fish and wildlife, and promotes
the conservation of broad-based natural communities and species
diversity.
   (e) Natural community conservation planning can provide for
efficient use and protection of natural and economic resources while
promoting greater sensitivity to important elements of the state's
critical natural diversity.
   (f) Natural community conservation planning is a voluntary and
effective planning process that can facilitate early coordination to
protect the interests of the state, the federal government, and local
public agencies, landowners, and other private parties.
   (g) Natural community conservation planning is a mechanism that
can provide an early planning framework for proposed development
projects within the planning area in order to avoid, minimize, and
compensate for project impacts to wildlife.
   (h) Natural community conservation planning is consistent with,
and will support, the fish and wildlife management activities of the
department in its role as the trustee for fish and wildlife within
the state.
   (i) The purpose of natural community conservation planning is to
sustain and restore those species and their habitat identified by the
department that are necessary to maintain the continued viability of
those biological communities impacted by human changes to the
landscape.
   (j) Natural community conservation planning is a cooperative
process that often involves local, state, and federal agencies and
the public, including landowners within the plan area. The process
should encourage the active participation and support of landowners
and others in the conservation and stewardship of natural resources
in the plan area during plan development using appropriate measures,
including incentives.

2802.  The Legislature further finds and declares that it is the
policy of the state to conserve, protect, restore, and enhance
natural communities. It is the intent of the Legislature to acquire a
fee or less than fee interest in lands consistent with approved
natural community conservation plans and to provide assistance with
the implementation of those plans.

2805.  The definitions in this section govern the construction of
this chapter:
   (a) "Adaptive management" means to use the results of new
information gathered through the monitoring program of the plan and
from other sources to adjust management strategies and practices to
assist in providing for the conservation of covered species.
   (b) "Candidate species" has the same meaning as defined in Section
2068.
   (c) "Changed circumstances" are reasonably foreseeable
circumstances that could affect a covered species or geographic area
covered by the plan.
   (d) "Conserve," "conserving," and "conservation" mean to use, and
the use of, methods and procedures within the plan area that are
necessary to bring any covered species to the point at which the
measures provided pursuant to Chapter 1.5 (commencing with Section
2050) are not necessary, and for covered species that are not listed
pursuant to Chapter 1.5 (commencing with Section 2050), to maintain
or enhance the condition of a species so that listing pursuant to
Chapter 1.5 (commencing with Section 2050) will not become necessary.
   (e) "Covered species" means those species, both listed pursuant to
Chapter 1.5 (commencing with Section 2050) and nonlisted, conserved
and managed under an approved natural community conservation plan and
that may be authorized for take.
   (f) "Department assurance" means the department's commitment
pursuant to subdivision (f) of Section 2820.
   (g) "Monitoring program" means a program within an approved
natural community conservation plan that provides periodic
evaluations of monitoring results to assess the adequacy of the
mitigation and conservation strategies or activities and to provide
information to direct the adaptive management program. The monitoring
program shall, to the extent practicable, also be used to meet the
monitoring requirements of Section 21081.6 of the Public Resources
Code. A monitoring program includes all of the following:
   (1) Surveys to determine the status of biological resources
addressed by the plan, including covered species.
   (2) Periodic accountings and assessment of authorized take.
   (3) Progress reports on all of the following matters:
   (A) Establishment of habitat reserves or other measures that
provide equivalent conservation of covered species and providing
funding where applicable.
   (B) Compliance with the plan and the implementation agreement by
the wildlife agencies, local governments, and landowners who have
responsibilities under the plan.
   (C) Measurements to determine if mitigation and conservation
measures are being implemented roughly proportional in time and
extent to the impact on habitat or covered species authorized under
the plan.
   (D) Evaluation of the effectiveness of the plan in meeting the
conservation objectives of the plan.
   (E) Maps of land use changes in the plan area that may affect
habitat values or covered species.
   (4) A schedule for conducting monitoring activities.
   (h) "Natural community conservation plan" or "plan" means the plan
prepared pursuant to a planning agreement entered into in accordance
with Section 2810. The plan shall identify and provide for those
measures necessary to conserve and manage natural biological
diversity within the plan area while allowing compatible and
appropriate economic development, growth, and other human uses.
   (i) "Person" has the same meaning as defined in Section 711.2.
   (j) (1) "Plan participant," prior to approval of a natural
community conservation plan and execution of an implementation
agreement, means a signatory to the planning agreement.
   (2) Upon approval of a natural community conservation plan and
execution of an implementation agreement, "plan participant" means
the permittees and any local agency that is a signatory to the
implementing agreement.
   (k) "Unforeseen circumstances" means changes affecting one or more
species, habitat, natural community, or the geographic area covered
by a conservation plan that could not reasonably have been
anticipated at the time of plan development, and that result in a
substantial adverse change in the status of one or more covered
species.
   (l) "Wildlife" has the same meaning as defined in Section 711.2.
   (m) "Wildlife agencies" means the department and one or both of
the following:
   (1) United States Fish and Wildlife Service.
   (2) National Marine Fisheries Service.

2809.  Any person, or any local, state, or federal agency,
independently, or in cooperation with other persons, may undertake
natural community conservation planning.

2810.  (a) The department may enter into an agreement with any
person or public entity for the purpose of preparing a natural
community conservation plan, in cooperation with a local agency that
has land use permit authority over the activities proposed to be
addressed in the plan, to provide comprehensive management and
conservation of multiple wildlife species, including, but not limited
to, those species listed pursuant to Article 2 (commencing with
Section 2070) of Chapter 1.5. The agreement shall include a provision
specifying the amount of compensation, if any, payable to the
department pursuant to Section 2829.
   (b) The agreement shall meet all of the following conditions:
   (1) The agreement shall be binding upon the department, other
participating federal, state, and local agencies, and participating
private landowners.
   (2) The agreement shall define the geographic scope of the
conservation planning area.
   (3) The agreement shall identify a preliminary list of those
natural communities, and the endangered, threatened, candidate, or
other species known, or reasonably expected to be found, in those
communities, that are intended to be the initial focus of the plan.
   (4) The agreement shall identify preliminary conservation
objectives for the planning area.
   (5) The agreement shall establish a process for the inclusion of
independent scientific input to assist the department and plan
participants, and to do all of the following:
   (A) Recommend scientifically sound conservation strategies for
species and natural communities proposed to be covered by the plan.
   (B) Recommend a set of reserve design principles that addresses
the needs of species, landscapes, ecosystems, and ecological
processes in the planning area proposed to be addressed by the plan.
   (C) Recommend management principles and conservation goals that
can be used in developing a framework for the monitoring and adaptive
management component of the plan.
   (D) Identify data gaps and uncertainties so that risk factors can
be evaluated.
   (6) The agreement shall require coordination with federal wildlife
agencies with respect to the federal Endangered Species Act (16
U.S.C. Sec. 1531 et seq.).
   (7) The agreement shall encourage concurrent planning for wetlands
and waters of the United States.
   (8) The agreement shall establish an interim process during plan
development for project review wherein discretionary projects within
the plan area subject to Division 13 (commencing with Section 21000)
of the Public Resources Code that potentially conflict with the
preliminary conservation objectives in the planning agreement are
reviewed by the department prior to, or as soon as possible after the
project application is deemed complete pursuant to Section 65943 of
the Government Code and the department recommends mitigation measures
or project alternatives that would help achieve the preliminary
conservation objectives. As part of this process, information
developed pursuant to paragraph (5) of subdivision (b) of Section
2810 shall be taken into consideration by the department and plan
participants. Any take of candidate, threatened, or endangered
species that occurs during this interim period shall be included in
the analysis of take to be authorized under an approved plan. Nothing
in this paragraph is intended to authorize take of candidate,
protected, or endangered species.
   (9) The agreement shall establish a process for public
participation throughout the plan development and review pursuant to
Section 2815.
   (c) The approval of the planning agreement is not a project
pursuant to Division 13 (commencing with Section 21000) of the Public
Resources Code.
   (d) Prior to department approval of the planning agreement, the
public shall have 21 calendar days to review and comment on the
proposed planning agreement.

2815.  The department shall establish, in cooperation with the
parties to the planning agreement, a process for public participation
throughout plan development and review to ensure that interested
persons, including landowners, have an adequate opportunity to
provide input to lead agencies, state and federal wildlife agencies,
and others involved in preparing the plan. The public participation
objectives of this section may be achieved through public working
groups or advisory committees, established early in the process. This
process shall include all of the following:
   (a) A requirement that draft documents associated with a natural
community conservation plan that are being considered for adoption by
the plan lead agency shall be available for public review and
comment for at least 60 days prior to the adoption of that draft
document. Preliminary public review documents shall be made available
by the plan lead agency at least 10 working days prior to any public
hearing addressing these documents. The review period specified in
this subdivision may run concurrently with the review period provided
for any document required by the California Environmental Quality
Act (Division 13 (commencing with Section 21000) of the Public
Resources Code) that is associated with the natural community
conservation plan. This subdivision shall not be construed to limit
the discretion of a public agency to revise any draft documents at a
public hearing.
   (b) A requirement to make available in a reasonable and timely
manner all draft plans, memoranda of understanding, maps,
conservation guidelines, species coverage lists, and other planning
documents associated with a natural community conservation plan that
are subject to public review.
   (c) A requirement that all public hearings held during plan
preparation or review for approval are complementary to, or
integrated with, those hearings otherwise provided by law.
   (d) An outreach program to provide access to information for
persons interested in the plan, including landowners, with an
emphasis on obtaining input from a balanced variety of affected
public and private interests, including state and local governments,
county agricultural commissioners, agricultural organizations,
landowners, conservation organizations, and the general public.

2820.  (a) The department shall approve a natural community
conservation plan for implementation after making the following
findings, based upon substantial evidence in the record:
   (1) The plan has been developed consistent with the process
identified in the planning agreement entered into pursuant to Section
2810.
   (2) The plan integrates adaptive management strategies that are
periodically evaluated and modified based on the information from the
monitoring program and other sources, which will assist in providing
for the conservation of covered species and ecosystems within the
plan area.
   (3) The plan provides for the protection of habitat, natural
communities, and species diversity on a landscape or ecosystem level
through the creation and long-term management of habitat reserves or
other measures that provide equivalent conservation of covered
species appropriate for land, aquatic, and marine habitats within the
plan area.
   (4) The development of reserve systems and conservation measures
in the plan area provides, as needed for the conservation of species,
all of the following:
   (A) Conserving, restoring, and managing representative natural and
seminatural landscapes to maintain the ecological integrity of large
habitat blocks, ecosystem function, and biological diversity.
   (B) Establishing one or more reserves or other measures that
provide equivalent conservation of covered species within the plan
area and linkages between them and adjacent habitat areas outside of
the plan area.
   (C) Protecting and maintaining habitat areas that are large enough
to support sustainable populations of covered species.
   (D) Incorporating a range of environmental gradients (such as
slope, elevation, aspect, and coastal or inland characteristics) and
high habitat diversity to provide for shifting species distributions
due to changed circumstances.
   (E) Sustaining the effective movement and interchange of organisms
between habitat areas in a manner that maintains the ecological
integrity of the habitat areas within the plan area.
   (5) The plan identifies activities, and any restrictions on those
activities, allowed within reserve areas that are compatible with the
conservation of species, habitats, natural communities, and their
associated ecological functions.
   (6) The plan contains specific conservation measures that meet the
biological needs of covered species and that are based upon the best
available scientific information regarding the status of covered
species and the impacts of permitted activities on those species.
   (7) The plan contains a monitoring program.
   (8) The plan contains an adaptive management program.
   (9) The plan includes the estimated timeframe and process by which
the reserves or other conservation measures are to be implemented,
including obligations of landowners and plan signatories and
consequences of the failure to acquire lands in a timely manner.
   (10) The plan contains provisions that ensure adequate funding to
carry out the conservation actions identified in the plan.
   (b) A natural community conservation plan approved pursuant to
this section shall include an implementation agreement that contains
all of the following:
   (1) Provisions defining species coverage, including any conditions
of coverage.
   (2) Provisions for establishing the long-term protection of any
habitat reserve or other measures that provide equivalent
conservation of covered species.
   (3) Specific terms and conditions, which, if violated, would
result in the suspension or revocation of the permit, in whole or in
part. The department shall include a provision requiring notification
to the plan participant of a specified period of time to cure any
default prior to suspension or revocation of the permit in whole or
in part. These terms and conditions shall address, but are not
limited to, provisions specifying the actions the department shall
take under all of the following circumstances:
   (A) If the plan participant fails to provide adequate funding.
   (B) If the plan participant fails to maintain the rough
proportionality between impacts on habitat or covered species and
conservation measures.
   (C) If the plan participant adopts, amends, or approves any plan
or project without the concurrence of the wildlife agencies that is
inconsistent with the objectives and requirements of the approved
plan.
   (D) If the level of take exceeds that authorized by the permit.
   (4) Provisions specifying procedures for amendment of the plan and
the implementation agreement.
   (5) Provisions ensuring implementation of the monitoring program
and adaptive management program.
   (6) Provisions for oversight of plan implementation for purposes
of assessing mitigation performance, funding, and habitat protection
measures.
   (7) Provisions for periodic reporting to the wildlife agencies and
the public for purposes of information and evaluation of plan
progress.
   (8) Mechanisms to ensure adequate funding to carry out the
conservation actions identified in the plan.
   (9) Provisions to ensure that implementation of mitigation and
conservation measures on a plan basis is roughly proportional in time
and extent to the impact on habitat or covered species authorized
under the plan. These provisions shall identify the conservation
measures, including assembly of reserves where appropriate and
implementation of monitoring and management activities, that will be
maintained or carried out in rough proportion to the impact on
habitat or covered species and the measurements that will be used to
determine if this is occurring.
   (c) If a plan participant does not maintain the proportionality
between take and conservation measures specified in the
implementation agreement and does not either cure the default within
45 days or enter into an agreement with the department within 45 days
to expeditiously cure the default, the department shall suspend or
revoke the permit, in whole or in part.
   (d) Any data and reports associated with the monitoring program
required by this section shall be available for public review. The
entity managing the plan shall also conduct public workshops on an
annual basis to provide information and evaluate progress toward
attaining the conservation objectives of the plan.
   (e) To the extent provided pursuant to Division 13 (commencing
with Section 21000) of the Public Resources Code and any guidelines
adopted pursuant thereto, if the impacts on one or more covered
species and its habitat are analyzed and mitigated pursuant to a
program environmental impact report for a plan adopted pursuant to
this chapter, a plan participant that is a lead agency or a
responsible agency under that division shall incorporate in the
review of any subsequent project in the plan area the feasible
mitigation measures and alternatives related to the biological
impacts on covered species and their habitat developed in the program
environmental impact report.
   (f) The department may provide assurances for plan participants
commensurate with long-term conservation assurances and associated
implementation measures pursuant to the approved plan.
   (1) When providing assurances pursuant to this subdivision, the
department's determination of the level of assurances and the time
limits specified in the implementation agreement for assurances may
be based on localized conditions and shall consider all of the
following:
   (A) The level of knowledge of the status of the covered species
and natural communities.
   (B) The adequacy of analysis of the impact of take on covered
species.
   (C) The use of the best available science to make assessments
about the impacts of take, the reliability of mitigation strategies,
and the appropriateness of monitoring techniques.
   (D) The appropriateness of the size and duration of the plan with
respect to quality and amount of data.
   (E) The sufficiency of mechanisms for long-term funding of all
components of the plan and contingencies.
   (F) The degree of coordination and accessibility of centralized
data for analysis and evaluation of the effectiveness of the plan.
   (G) The degree to which a thorough range of foreseeable
circumstances are considered and provided for under the adaptive
management program.
   (H) The size and duration of the plan.
   (2) If there are unforeseen circumstances, additional land, water,
or financial compensation or additional restrictions on the use of
land, water, or other natural resources shall not be required without
the consent of plan participants for a period of time specified in
the implementation agreement, unless the department determines that
the plan is not being implemented consistent with the substantive
terms of the implementation agreement.

2821.  Concurrent with the approval by the department of a final
natural community conservation plan, the department shall do both of
the following:
   (a) Establish a list of species that are authorized for take
pursuant to Section 2835 and the department shall make specific
findings to support coverage pursuant to Section 2820. For purposes
of determining whether a species should receive coverage under a
plan, the department shall use, in addition to the standards required
for the adoption of a plan, one or more of the following criteria:
   (1) Coverage is warranted based upon regional or landscape level
consideration, such as healthy population levels, widespread
distribution throughout the plan area, and life history
characteristics that respond to habitat-scale conservation and
management actions.
   (2) Coverage is warranted based on regional or landscape level
considerations with site specific conservation and management
requirements that are clearly identified in the plan for species that
are generally well-distributed, but that have core habitats that
must be conserved.
   (3) Coverage is warranted based upon site specific considerations
and the identification of specific conservation and management
conditions for species within a narrowly defined habitat or limited
geographic area within the plan area.
   (b) Find that the mitigation measures specified in the plan and
imposed by the plan participants are consistent with subdivision (d)
of Section 2801.

2822.  The department may seek injunctive relief against any plan
participant, person, or entity to enforce this chapter.

2823.  The department shall suspend or revoke any permit, in whole
or in part, issued for the take of a species subject to Section 2835
if the continued take of the species would result in jeopardizing the
continued existence of the species.

2825.  The department may adopt regulations for the development and
implementation of natural community conservation plans consistent
with this chapter.

2826.  Nothing in this chapter exempts a project proposed in a
natural community conservation planning area from Division 13
(commencing with Section 21000) of the Public Resources Code or
otherwise alters or affects the applicability of that division.

2827.  To the extent practicable, implementation of natural
community conservation plans shall use the services of either the
California Conservation Corps or local community conservation corps.

2828.  Nothing in this chapter prohibits a local government from
exercising any power or authority granted to it pursuant to state law
to acquire land or water to implement a plan.

2829.  (a) The department may be compensated for the actual costs
incurred in participating in the preparation and implementation of
natural community conservation plans. These costs may include
consultation with other parties to agreements authorized by Section
2810, providing and compiling wildlife and wildlife habitat data,
reviewing and approving the final plan, monitoring implementation of
the plan, and other activities necessary to the preparation and
implementation of a plan.
   (b) The department may be compensated for those expenses
identified in subdivision (a) according to a schedule in the
agreement authorized by Section 2810.

2830.  Nothing in this chapter prohibits the taking or the
incidental take of any identified species if the taking is authorized
by the department pursuant to any of the following:
   (a) A natural community conservation plan or amended plan approved
by the department prior to January 1, 2002. Any permits, plans,
implementation agreements, and amendments to those permits, plans, or
implementation agreements described in this section are deemed to be
in full force and effect as of the date approved or entered into by
the parties insofar as they authorize the take of identified species
pursuant to an approved natural community conservation plan and shall
be governed solely by former Chapter 10 (commencing with Section
2800) as it read on December 31, 2001.
   (b) Any natural community conservation plan, or subarea plan,
approved, or amended on or after January 1, 2002, for which a
planning or enrollment agreement meets any of the following criteria,
which shall be solely governed in accordance with former Chapter 10
(commencing with Section 2800) as it read on December 31, 2001:
   (1) The natural community conservation plan was entered into
between the department and plan participants prior to January 1,
2001, and is carried out pursuant to Rule 4(d) for the California
Gnatcatcher (Federal Register Volume 58, December 10, 1993),
including the southern subregion of Orange County.
   (2) The natural community conservation plan was prepared pursuant
to the planning agreement for the San Diego Multiple Species
Conservation Plan.
   (3) The natural community conservation plan was prepared pursuant
to the planning agreement for the San Diego Multiple Habitat
Conservation Plan.
   (c) Any programmatic natural community conservation plan approved
by the department on or before January 1, 2002.
   (d) Any natural community conservation plan developed pursuant to
a planning or enrollment agreement executed on or before January 1,
2001, and for which the department finds that the plan has been
developed using a public participation and scientific analysis
process substantially in conformance with the intent of paragraph (5)
of subdivision (b) of Section 2810 and Section 2815.
   (e) Any natural community conservation plan developed pursuant to
a planning agreement executed on or before January 1, 2002, and which
the department finds is in substantial compliance with Section 2820.
   (f) (1) Any natural community conservation plan or subarea plan
initiated on or before January 1, 2000, or amendments thereto, by
Sweetwater Authority, Helix Water District, Padre Dam Municipal Water
District, Santa Fe Irrigation District, or the San Diego County
Water Authority, which the department determines is consistent with
the approved San Diego Multiple Habitat Conservation Program or the
San Diego Multiple Species Conservation Program, is exempt from
Section 2810, and paragraph (1) of subdivision (a) of Section 2820,
except as provided in paragraph (2), if the department finds that the
plan has been developed and is otherwise in conformance with this
chapter.
   (2) The public water agencies identified in this subdivision and
the department shall include independent scientific input as
described in subparagraphs (A) to (D), inclusive, of paragraph (5) of
subdivision (b) of Section 2810 into the proposed plans in a manner
that focuses on the covered species that are proposed for take
authorization and that are not otherwise covered in the San Diego
Multiple Species Conservation Program or the San Diego Multiple
Habitat Conservation Program.
   The scientific input required by this paragraph shall be based on
the best and most current scientific data generally available, and
shall assure that documentation for coverage of all species is equal
or greater than the San Diego Multiple Habitat Conservation Program.

2831.  (a) Notwithstanding any other provision of law, lands
designated as of January 1, 2008, as open-space lands in a document
entitled "Declaration of the Dedication of Land" approved by a
resolution of the San Diego City Council in the same manner in which
the city council processes approval of dedicated open space,
reserving to the city council the authority to grant easements for
utility purposes in, under, and across dedicated property, if those
easements and facilities to be located thereon do not significantly
interfere with the park and recreational use of the property, and
filed with the Office of the City Clerk for the City of San Diego,
and, if required, at the Office of the County of San Diego
Recorder/Clerk, are dedicated land under the City Charter of the City
of San Diego.
   (b) Upon filing of that document in accordance with subdivision
(a), the Office of the City Clerk for the City of San Diego, and, if
applicable, the County of San Diego Recorder/Clerk, shall make the
document available for inspection by the public upon request.

2835.  At the time of plan approval, the department may authorize by
permit the taking of any covered species whose conservation and
management is provided for in a natural community conservation plan
approved by the department.