On October 2, 2015, the Bureau of Land Management (“BLM”) and the California Department of Fish and Wildlife (“CDFW”) entered into a 12-page “agree[ment] to work with each other to conserve biological and natural resources on federal public lands administered by the BLM within California.” (10/2/15 Agreement By And Between The United States Bureau Of Land Management And The California Department Of Fish And Wildlife (“Agreement”), at p. 1.) The Agreement states it was developed “for the purpose of memorializing and making specific [the agencies’] cooperation and coordination to protect and conserve fish, wildlife, plants and their habitat within California” and that it “supplements” an earlier, November 27, 2012 MOU between BLM and CDFW. (Ibid.)
In recognition of the agencies’ authority and responsibilities under various federal and state laws concerning natural resources (including CEQA), the Agreement states in part regarding CDFW compensatory mitigation requirements: “Although compensatory mitigation is usually completed on private land, CDFW is committed to ensuring that permittees seeking to satisfy compensatory mitigation requirements identify and protect the highest quality habitat available, regardless of whether that occurs on private or public lands. In designing appropriate mitigation for any given project, CDFW also seeks to locate mitigation where it will best offset the specific types of adverse effects from the project, whether that is on public or private land.” (Agreement, § C.2, at p. 2.) The Agreement further recites that both agencies “recognize that many BLM Conservation Lands include critically important habitat for CESA-listed species, fully protected species, and other species of special concern in California.” (Id., § C.3, p. 2.)
The Agreement goes on to describe the benefits to both agencies of “[u]sing BLM Conservation Lands to contribute toward satisfaction of compensatory mitigation requirements for projects permitted by CDFW” (id., § C.4, pp. 2-4 [also describing various types of compensatory mitigation actions, available land use authorizations for such mitigation, and available cooperative agreements]), and procedures for coordination between the agencies with respect to implementing state-recognized compensatory mitigation on BLM Conservation Lands. (Id., at § C.5, pp. 4-5.)
With over 15 million acres of California land under federal ownership within BLM jurisdiction, and at least several million acres of those falling within the category of BLM Conservation Lands, successful implementation of the Agreement should substantially expand the number of potential sites where compensatory mitigation may occur to satisfy CDFW requirements for state projects. While this would be an obvious benefit to private or public project proponents searching for appropriate sites to mitigate their projects’ biological and natural resources impacts, it is encouraging that the agencies recognize that they will reciprocally benefit as well. As stated in the Agreement’s Section C.4, “[u]sing BLM Conservation Lands to contribute toward satisfaction of compensatory mitigation requirements for projects permitted by CDFW benefits: (1) CDFW by facilitating its permitting process; (2) BLM by providing funding and staffing for restoration and enhancement work on BLM Conservation Lands; and (3) both agencies by helping fulfill their mutual goal of protecting and conserving fish, wildlife, plants and their habitat within California.”
Official federal-state recognition of the desirability of further restoration and enhancement of California habitats already subject to some degree of conservation protection is a positive and refreshing development. But stakeholders in the land use and development process can attest that such has not always been the case in a state rife with anti-development forces out to scuttle projects by any available means – including making required mitigation practically unavailable, prohibitively expensive, or even legally infeasible. As readers may recall, just a few years ago state legislation was proposed – thankfully, unsuccessfully – which would actually have provided that: “A property that has been previously protected for conservation purposes, including the placement of a conservation easement on the property, may not be used for mitigation purposes.” (See “CEQA Mitigation On Conservation Easements Lands: How A Plea To Legislators Killed A Threat To Farmers’ Property Rights (For Now)”, by Arthur F. Coon, posted October 7, 2011.)
As always, those interested in sustainable development, the protection of property rights, and the successful conservation and protection of species and resources of concern should remain vigilant. But the CDFW / BLM Agreement seems to be a step in the right direction.
Questions? Please contact Arthur F. Coon of Miller Starr Regalia. Miller Starr Regalia has had a well-established reputation as a leading real estate law firm for more than fifty years. For nearly all that time, the firm also has written Miller & Starr, California Real Estate 4d, a 12-volume treatise on California real estate law. “The Book” is the most widely used and judicially recognized real estate treatise in California and is cited by practicing attorneys and courts throughout the state. The firm has expertise in all real property matters, including full-service litigation and dispute resolution services, transactions, acquisitions, dispositions, leasing, financing, common interest development, construction, management, eminent domain and inverse condemnation, title insurance, environmental law and land use. For more information, visit www.msrlegal.com.