Conservation and Mitigation Banking

Bank Agreement Checklist

A Bank Agreement is the legal agreement between the bank owner and the California Department of Fish and Game (and the U.S. Fish and Wildlife Service (USFWS) as appropriate) that details the conditions and criteria under which a conservation bank will be established and operate. The following list of issues must be addressed within a Bank Agreement in which the Department of Fish and Game (Department) is a party. Some of these items are information to be supplied by the bank owner, while other issues are negotiated and all parties must agree to them. Because each conservation/mitigation bank is unique, additional items not listed here may be requested for inclusion in the Bank Agreement by one or more of the parties. To assist interested parties with developing a new conservation or mitigation bank, the Department has created a Bank Development Matrix to give additional guidance on how to meet many of the bank agreement criteria listed below.

1. Accurate current map of bank property on a minimum 7 ½ min. U.S.G.S. Quad map, or finer scale if possible. Aerial photo of bank and surrounding properties should be provided if possible.
2. Description of the biological resources on the bank property.
3. Name of the bank. If bank ownership is granted to the Department, the name of the bank will be in accordance with State Fish and Game Commission policy.
4. Name of the person/organization to hold fee title to the bank property.
5. Name of the person/organization who will have management responsibility for the bank. This entity must have demonstrated experience in natural lands management and adequate liability insurance.
6. Name of the person or entity who will hold a conservation easement on the property. For lands remaining in private hands, this will typically be the Department, the USFWS within federal refuge planning areas, or a qualified non-profit land trust. For lands given in fee title to the Department or USFWS, no easement is necessary. The Bank Agreement will include a final draft conservation easement ready to be signed, if land is not given in fee title to the Department or USFWS. No mitigation credit can be sold until the easement is recorded, unless designated otherwise.
7. Preliminary title report indicating any easements or other encumbrances on the property. This information will be supplied early in the bank evaluation and development process to assure that conservation banking is compatible with other current or planned activities on the property.
8. Number and kind of mitigation credits to be made available at the bank. Final credit numbers, and any constraints on types of credits to be sold, will be determined by the Department.
9. Description and map of the service area of the bank.
10. Description and delineation of each bank phase, if more than one phase is proposed. The description will include phase boundaries, and the number of mitigation credits associated with each phase.
11. Results of an archeological records search to identify known cultural resource sites on the property. If facilities (e.g., fencing, structures, etc.) are planned for the bank property, on-site reconnaissance for archeological resources may be required.
12. Results of an Environmental Site Assessment Phase 1 Hazardous Materials Survey for the entire bank property. If the Department assumes ownership of the bank property, all hazardous wastes will be removed and the site certified clean prior to close of escrow and title transfer.
13. A review of mineral and water rights associated with the property. The Department may not support a bank on property that does not include mineral and water rights. Habitat values must be maintained in perpetuity.    Identification of any potential prescriptive rights claims on the property (e.g., road access, etc.). Because the State does not recognize prescriptive rights claims, all such claims must be settled prior to close of escrow and title transfer if the Department takes ownership of the bank property. If the settlement of prescriptive rights claims reduces the biological values of the bank, the mitigation value of the bank will be reduced correspondingly.
14. A management plan, including a funding mechanism, must accompany the Bank Agreement. The management plan will be used to determine the endowment necessary to carry out appropriate management of the bank in perpetuity. If access control measures are not initiated by the property owner prior to bank establishment, the management plan will discuss the need to control public access to the property (e.g., fencing, gates, etc.). Sufficient management funds to initiate needed access control activities at the time of bank start-up will be included.
    The conservation bank management plan should at a minimum discuss the following issues (as outlined in the Department’s Guidelines for the Preparation of Land Management Plans):
15. Property description, including geographical setting, adjacent land uses, location relative to regional open space plans, geology, and cultural or historic features on-site.
16. Description of biological resources on-site, including vegetation map and sensitive species locations and status.
17. Management needs of the property, including control of public access, restoration or enhancement of habitats, monitoring of resources, maintenance of facilities, public uses, start-up funding necessary, budget needs and necessary endowment funds to sustain the budget, and yearly reporting to the Department of Fish and Game. If special management requirements are necessary to maintain the biological values on the property, these should also be discussed in detail. The bank manager is responsible for fulfilling the obligations of the management plan. Therefore, it is important to accurately estimate budget needs up-front.
18. The Bank Agreement must include an agreement by the current owner of the bank property to accurately delineate and mark in the field all boundaries (property corners) of the bank property, including any bank phases, before the first bank mitigation credit is sold, fee title transferred, or conservation easement granted.
19. Trash, structures, or other items on-site that would reduce the long-term biological value or health/safety of the site will be removed before the first mitigation credit is sold, unless agreed to otherwise by the Department.
20. For conservation bank lands that the Department accepts in fee title, it reserves the right to designate the lands pursuant to Department Policy and to facilitate law enforcement activities on the property.