Conservation Banks

Chapter 7.9 of Division 2 of the Fish and Game Code deals with the conservation bank and mitigation bank applications and fees under the jurisdiction of the California Department of Fish and Wildlife.

Section 1797 contains eight legislative findings and declarations.

Section 1797.5 contains the following definitions: “bank,” “bank enabling instrument,” “bank sponsor,” “conservation bank,” “conservation easement,” “mitigation bank,” “person,” and “prospectus.”

Section 1798 provides that 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 must be accompanied by a draft prospectus review fee of $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.

No later than 30 calendar days after the department receives a draft prospectus and review fee, the department is required to make an initial evaluation of the proposed concept and notify the person who submitted the draft prospectus of potential issues identified by the department.

Any person seeking to establish a bank with the department is required to submit a bank prospectus to the department together with a prospectus review fee of 10,000 to fund the reasonable cost of the department’s review services. If a draft prospectus and the review fee have been submitted, then the review fee for the bank prospectus is $8,500.

The bank prospectus is required to contain at least fourteen specified items of information. No later than 30 calendar days after the department receives a bank prospectus and the prospectus review fee, the department is required to determine whether or not the prospectus is complete and provide written notice of its determination to the person who submitted the prospectus.

If the department determines that a bank prospectus is acceptable then a bank agreement package may be submitted. If the department determines that a bank prospectus is not acceptable the department must state the reasons for the determination. The prospectus may be resubmitted if further consideration is desired. Any resubmittal must be accompanied by payment of a new review fee.

Section 1798.5 states that, if the department determines that a bank prospectus is acceptable, the person seeking to establish the bank may submit a bank agreement package to the department. The department may adopt and amend guidelines and criteria for the bank agreement package, including recommended standard forms for bank enabling instruments or long-term management plan and conservation easements.

The bank agreement package must be consistent with the prospectus and contain at least all of the eight specified items of information. The department is required to collect a fee of $25,000 per bank agreement package to fund the cost of the department’s review services. The fee is to be collected at the time the bank agreement package is submitted to the department.

Within 30 calendar days following the department’s receipt of a bank agreement package and fee, the department is required to determine whether or not the package is complete and give written notice of the determination to the person who submitted the package. If the department determines that the bank agreement package is not complete, it may be made complete and resubmitted.

If the department determines that the bank agreement package is complete, within 90 calendar days of that determination, the department must 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 must state the reasons. The department may request clarifying information during the bank agreement review process.

Section 1798.6 requires any person seeking to amend any bank to 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.

Within 30 calendar days following its receipt of a draft bank amendment package and any fee, the department must determine whether or not the package is complete and give written notice of that determination to the person who submitted the package. If the department determines that the bank amendment package is complete, then within 90 calendar days of that determination, the department has to determine whether or not the package is acceptable and notify the person who submitted the package of that determination.

The department is required to collect a fee of either $7,500 or $25,000 per bank amendment package to fund the reasonable cost of the department’s review services. 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 not acceptable the determination must state the reasons.

Section 1799 prohibits any bank, until the department has approved a bank in writing, from operating, vesting, or finalizing, or issuing bank credits. No amendment to an approved bank is effective without the written approval of the department. Following approval of a final bank agreement package and establishment of a bank, the department is required to conduct compliance review activities as provided in the approved bank enabling instrument.

The department is required to establish and maintain a database that allows bank sponsors to accurately update and add information about mitigation and conservation banks. This data is available on the department’s Internet Web site or accessible by a link from the department’s Internet Web site.

The available information must include 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.

Section 1799.1 requires the department to annually adjust the fees in this chapter. Moneys received pursuant to this chapter are to be deposited in a separate dedicated account within the Fish and Game Preservation Fund and expended for the purposes of this chapter. The department was required to adopt and amend guidelines and criteria to implement this chapter.

The costs of a conservation and mitigation banking program, including costs incurred by the department during its guideline adoption and review, approval, establishment, monitoring, and oversight of banks, must be reimbursed from revenues of conservation and mitigation bank application fees.