Mitigation Transactions Rebecca Payne Gregoria Ponce

Authorities under which we can mitigate What we can pay for Who we can enter into an agreement with Methods for entering into agreements Who to contact

Laws Requiring Mitigation California Environmental Quality Act (CEQA) Federal Endangered Species Act (FESA) California Endangered Species Act (CESA) Clean Water Act (CWA) §401 and 404 Porter-Cologne Act California Fish and Game Code §1600 et al. Coastal Zone Management Act (CZMA) Magnuson-Stevens Fishery Conservation Act of 1976, as amended McAteer-Petris Act (SF Bay only)

Example Permit Conditions

Credit Purchases Must be from an approved bank Use RIBITS to find options for banks approved by federal agencies Banks approved only by CDFW may not be listed on RIBITS. All banks approved by CDFW are listed on their website: nning/Banking/Approved-Banks

How to Purchase a Mitigation Credit NOT a property right MUST go through the contract process IF there is only one bank or ILF with the credits you need… Use the Special Category NCB IF you have more than one bank or ILF available to you, you must BID

Special Category NCB What is it? When can you use it? How can you use it?

How To Get Started Submittal documents needed: – ADM 0360 Contract Service Request and Scope of Work – Signed permit describing mitigation requirements – Map of the project location – Contract manager training certificate (online) – Copy of the approved NCB #380 (if applicable) – Print out of RIBITS showing only one bank has available credits – Conflict of Interest Form (over $100,000) – Acquisition Exemption Request Form (over $250,000) Submit to: Resources available at:

The Contracting Process Timeframes for contract process – Mitigation Work/Credits- going out to bid Approximately 120 calendar days for contract execution – Mitigation Credits- through NCB #380 Approximately 90 calendar days for contract execution

Other Credit Purchases If you have more than one credit option Work with your Contract Services group and DPAC Follow standard contracting procedures: Allow ~ 6 months

The OTHER Option Some banks and ILFs are owned and managed by a local government entity (County, RCD, etc). – These purchases can be completed through a co- operative agreement.

Permittee Responsible Mitigation Agreements Land – Fee/Title – Conservation Easements/Deed Restrictions Planning – Mitigation plan, design, success criteria (MUST match permit/document) Improvements – Grading, planting, fencing Management – In Perpetuity Endowment – Cost Analysis/PAR

Authorities Streets and Highways Code §114 and 130 – Agreements with other government entities Government Code § – Agreements with non-profits, for-profits, community foundations, government entities and congressionally chartered organizations Civil Code §815 – Conservation Easements

Caltrans Transfer Processes Cooperative agreements – ONLY with a governmental entity City, County, State, Joint Powers Authority, Special District, Rural Conservation District (RCD), etc. Real Estate Transactions – ONLY when there is a transfer of a real property right Fee/title, Conservation Easement, etc. Service Agreement (Contracts) – Anything else – DPAC

Mitigation Cooperative Agreements – Guidance Caltrans enters into mitigation cooperative agreements with public entities when exchanging effort, funding or materials associated with implementing environmental commitments. The Office of Environmental Management provides guidance at mitigation-cooperative- agreements explaining the basics, templates, development, and submittal process. mitigation-cooperative- agreements

Mitigation Cooperative Agreements- Anatomy Body – Introduction, recitals, responsibilities, scope, cost, schedule, general conditions, signatures Specific to working only with public entities Scope of work is effort or funding based Excludes land transfers or conditional easements – these are addressed under separate process

Mitigation Cooperative Agreements- Do’s Do enter the agreement into the Cooperative Agrmt database Do follow the current standard templates, as applicable Do cite and include the authorizing documentation (permits, ED, BO, etc) Do cite/point to the scope of work (HMMP, quantitative list) Do include cost and funding source Do include figures and maps Peer Review Don’ts Don’t use a dated or previously used agreement to write a new agreement.

Real Estate Mitigation Agreements MUST be in conjunction with a property transaction (transfer of land or property rights) Complete with ROW Meets permit condition References activities and costs from MMP Templates under construction Templates under construction

The Contracting Process Use when working with a non-profit WITHOUT a property transaction Develop your Scope of Work Timeframes – Minimum of 10 days for bids – 120 days for contract execution Bid/NCB – Bidsync ( Forms – ADM 360, STD 213

GC § SB 1094 clarified that if any state or public local agency, in the development of its own project, is required to protect property to mitigate an adverse impact upon natural resources, the agency may take any action that it deems necessary in order to meet its mitigation obligations, including, but not limited to, the following:

1.Convey the interest to a special district (including resource conservation district, regional park district, or regional open- space district) or to a nonprofit organization that meets certain requirements;

2.Provide funds to a nonprofit organization, a special district, a person, or other entity to acquire land in-fee or easements that satisfy the Department's mitigation obligations, subject to certain requirements; and

Convey endowments to nonprofits, governmental entities, or special districts for the long-term maintenance and management of mitigation sites within certain constraints.

Transfer the interest or funds to meet, obligation to restore and enhance property, to a governmental entity, special district, or nonprofit organization that meets the laws requirements.

Purchasing Mitigation Land Contact ROW early to identify mitigation needs and encumber ROW funds for land purchase ROW must have adequate time to: 1.Estimate cost to include in the ROW data sheet & encumber funds 2.Prepare maps and legal description 3.Value property and complete appraisal 4.Negotiate acquisition for property purchase 5.Clear title issues and record deeds A minimum of 24 months is recommended to complete ROW tasks BUT it is not a guarantee! The EARLIER you involve ROW the more successful your outcome.

Conservation Easements Civil Code §815 – Restriction binding on current and future owners – “To retain land in its natural, scenic, historical, agricultural, forested, or open-space condition.” – Perpetual in duration – Real property interest – Characteristics of each easement are specific to that case

Conservation Easement Holders Non-Profit organizations qualified under §501(c)(3) of the Internal Revenue Code – primary purpose is the preservation, protection, or enhancement of land in its natural, scenic, historical, agricultural, forested, or open-space condition or use. Governmental Entities California Native American tribe*

Conservation Easement Holder Responsibilities Conservation Easement Holder: Ensure Compliance with Management Plan Monitoring and Reporting Enforcement Endowment Account Management (Potentially) Conservation Easement Costs: Baseline Land Conditions Assessment Annual Easement Monitoring Pre-endowment (Interim Management) Funds

Conservation Easements for Mitigation MUST meet the needs of the permit and resource Restrict uses according to the mitigation plan AND Allow for uses that are specified in the mitigation plan- grazing, fencing, herbicide use, etc. Incorporate by reference any mitigation plan and endowment transfer agreement

Things to Remember Multiple parties may be involved in land transfer and mitigation – External (Regulatory Agencies, Land Manager, CE Holder) – Internal (PDT Members) Identify the timing for recording the Conservation Easement Don’t enter into a binding agreement until all parties have reviewed and agreed upon the conditions of the easement, management plan, and funding agreement

Legal Review

Questions? Cost Estimating Tool: –

Who to Contact Rebecca Payne Senior Wetland and Mitigation Specialist Division of Environmental Analysis Mark Rowan Senior Right of Way Agent Division of Right of Way and Land Surveys Gregoria Ponce Senior Environmental Planner Division of Environmental Analysis Phillip Rodriguez Office Chief, Non- IT Acquisitions Division of Procurements and Contracts