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HomeMy WebLinkAboutMINUTES - 10271998 - D6 TO: BOARD OF SUPERVISORS 1 C.Onr FROM: DENNIS M. BARRY, AICD � '~' Costa COMMUNITY DEVELOPMENT DIRECTOR County DATE: OCTOBER 27, 1998 SUBJECT: PRESENTATION BY THE U.S. FISH AND WILDLIFE'' SERVICE AND THE CALIFORNIA DEPARTMENT OF FISH AND GAME ON THE PURPOSE AND NEED FOR DEVELOPING A HABITAT CONSERVATION PLAN AND/OR NATURAL COMMUNITIES CONSERVATION PLAN IN EASTERN CONTRA COSTA COUNTY SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1. HEAR presentation by the U.S. Fish and Wildlife Service and the California Department of Fish and Game on the purpose and need for developing a Habitat Conservation Plan ("HCP") and/or a Natural Communities Conservation Flan ("NCCP") in eastern Contra Costa County. 2. ACCEPT background report on the NCP/NCCP issue jointly prepared by the Community Development Department and staff' from other local public agencies in eastern Contra Costa County. 3. CONSIDER directirig the Community Development Director to: a) continue to collect information on, and analyze the advantages and disadvantages of, developing a HCP/NCCP; b) scope the basic tasks involvedin developing a HCP/NCCP for the purpose of framing a later decision by the Board as to participation in any process to develop such a plan; c) identify potential outside funding sources for staff and consultant costs related to developing such a plan. CONTINUED ON ATTACHMENT: _Y�__YES SIGNATURE RECO OF COUNTY ADMINISTRATOR RECOMMENDATION OF 80 RD C}MMITTEE - _APPROVE OTHER. SIGNATURE(S): 4�kaZ26 A6� yzaz= ACTION OF BOARD ON October 27, 1998 APPROVED AS RECOMMENDED �-_ OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS (ABSENT -- ) AND CORRECT COPY OF AN ACTION TAKEN AYES:_ __ NOES: AND ENTERED ON THE MINUTES OF THE ABSENT: ABSTAIN: BOARD OF SUPERVISORS ON THE BATE - SHOWN. Contact: John Kopchik, CDD (925-335-1227) ATTESTED October 27, 1998 cc: Community Development'Department {CDD} PHIL BATCHELOR, CLERK OF County Administrator THE BOARD OF SUPERVISORS County Counsel AN COUNTY ADMI`NISTIATOR Public Works Director (Avalon, 5hiu, T'unison) Agricultural Commissioner M BY-�g J Le DEPUTY J:1Jkopcclhhcpoct98.bo Report on HCP/NCCP's October 27, 1998 Page 2 FISCAL IMPACT Performance of tasks under Recommendation 3, above, by the Community Development Department could have a cost of approximately$2,000 to $5,000, but has some relation to existing staff work on the East County Biodiversity Project. Actual development of an HCP/NCCP would require substantial staff time and identification of a source of funding. BACKGROUN'DiREASONS FOR RECOMMENDATIONS This presentation and staff report are an outcome of a March 18, 1998 letter from the U.S. Fish and Wildlife Service and the California Department of Fish and Game to the Board of Supervisors and elected officials at other local government agencies. On April 21, 1998, the Board of Supervisors referred this letter to the Community Development Director for appropriate action. Complete background information on this item is contained in the attached "HCP/NCCP Staff Report"jointly prepared by the Community Development Department and staff from the cities of Antioch, Brentwood, Clayton, and Pittsburg, the East Bay Regional Park District, and the Contra Costa Water District. As the Board of Supervisors has recently initiated major efforts related to addressing the impacts of growth, to reviewing the Urban Limit Line and the General Plan, and to identifying options for funding acquisition of land or easements for open space, discussion of the HCP/NCCP issue would seem timely. If further consideration of the HCP/NCCP matter is directed, this consideration should evaluate opportunities for integrating the HCP/NCCP with other broad policy initiatives. The HGP/NCCP proposal should not be seen as an alternative to such initiatives since: a) it is intended only to provide state/federal permits and to establish 'a program for mitigating some environmental impacts; b)it is not intended to directly address other significant issues such as traffic and air quality; and c) would not directly regulate land use. JAjkopc\hcpoct98.no H(:P/NCCP Sla f Report September 30, 1998 Report preparedlointly by staff at Contra Costa County(CCC}, the cities of Antioch,Brentwood, Clayton and Pittsburg, the East Bay Regional Park District(EBRPD)and the Contra Costa Water.District(CMD). Finalized for presentation to the Contra Costa County.Board of Supervisors by staff at CCC: Introduction On March 18, 1998,the U.S. Fish and Wildlife Service(USFWS)and the California Department of Fish and Game (CDFG) sent a letter to land use planning agencies and special districts in the east Contra Costa County area recommending the development of a regional Habitat Conservation Plan (HCP)and Natural Communities Conservation Plan(NCCP) (letter is attached). Staff at USFWS and CDFG have agreed to follow up on this letter by making presentations to its recipients,namely, the Contra Costa County Board of Supervisors,the City Councils of Antioch,Brentwood,Clayton, and Pittsburg,and the Board of Directors of the Contra Costa Water District(CCWD) and the East Bay Regional Park District(EBRPD). This report was jointly prepared by local agency staff as a preliminary discussion of this issue to accompany the presentations. The following subjects are discussed: 1. What is a HCP or NCCP? 2. Background on the proposal for developing a HCP/NCCP in East County 3. Current process for complying with the endangered species acts 4. Haw HCP's/NCCP's modify the process for endangered species compliance 5. Options for broadening plan to incorporate other permits and policy'goals 6. Process for developing an HCP/NCCP 7. Preliminary analysis 1. What is a regional HCP or NCCP? HCP's and NCCP's are vehicles for obtaining a permit for the incidental take of endangered species. HCP's are authorized under federal law and relate to species and restrictions covered by the Federal Endangered Species Act(FESA). NCCP's relate to the California Endangered Species Act(CESA) and the species and regulations covered by it. The term "Incidental Take Permit" or "ITP" is sometimes used to describe such plans.The first HCP in the U.S.was completed in 1982 to protect endangered species and permit development on San Bruno Mountain in San Francisca. Since then, thousands of individual landowners or developers have completed relatively small-scale HCP's to receive endangered species permits for projects on their land. Many such HCP's are in progress for individual projects in the East Bay, and many local developments, including Dougherty 'Talley, have prepared very similar plans under a different section(section 7)of FESA which applies when a project has a federal connection, either for funding or permits. The concept of developing a regional HCPINCCP which covers a multitude of landowners was first tested in the early 1990's in southern California. The intended purpose of these initiatives was to 1 improve the process for complying with endangered species regulations by: 1)';providing a permit and improved regulatory certainty to the entire region rather than one landowner at a time; and 2) developing a coordinated, efficient system for permanently protecting endangered species habitat at a scale better suited for biological conservation. In efforts such as these, local government(s) develop and approve the plan,typically via an extensive public process. An implementing authority set up by the local governments(s)holds the ITP and carries out associated requirements, such as the acquisition of habitat. Governor Wilson signed the Natural Communities Conservation Act in 1991 to,enable preparation of NCCP's and provide an approximate state equivalent to the federal HCP. Both the Clinton and Wilson administrations have advocated regional HCP'sINCCP's as more proactive, effective, and efficient means for reconciling development and species protection. Approximately 20 such regional plans-most still labeled only as HCP's-are approved or are being prepared in California, including completed plans in Orange County and the City of Bakersfield,and plans nearing completion in San Joaquin, Yolo, and Sacramento Counties. 2. East County Background The USFWS and CDFG initiated discussion of the purpose and need for developing a HCP for East County in 1997, requesting meetings with staff from local government and special districts. Both regulatory agencies expressed concern over the loss of habitat in East County for such species as the San Joaquin Kit Fox,Alameda Whipsnake,California Red-Legged Frog, and Bald Eagle,and urged preparation of a conservation plan to better protect these and other listed species and streamline endangered species permitting. The USFWS also discussed the biological opinion provided during approval of the CCWD Los Vaqueros Project which limits CCWD water diversions to 148,000 acre feet per year(afly),and prevents CCWD from using their full entitlement of 195,000 affy under the Central Valley Project (CVP) contract with the U.S. Bureau of Reclamation. To remove the limitation, USFWS is requiring that a plan be developed to effectively mitigate for impacts to terrestrial endangered species associated with growth in the CCWD service area. USFWS has also encouraged the State Route 4 Bypass Authority to participate in an East County HCP to mitigate for direct and growth related impacts associated with its projects. Staff from local jurisdictions asked for further details on why East County was emphasized, on why local governments should consider embarking on such a potentially time-consuming effort, what science existed regarding endangered species in the area,and what the state and federal governments could offer in terms of assistance,particularly financial assistance. Local staff also requested that the USFWS and CDFG send a joint letter to local elected officials explaining their recommendation regarding development of an HCP/NCCP. Since the letter was transmitted in March, local agency staff has participated in several other meetings on this topic to learn more about what is involved in developing a plan, to explore the advantages and disadvantages from a local perspective,and to discuss presentations by the USFWS and CDFG before local Boards and Councils. The dialogue was expanded to include representatives from wetlands regulatory agencies, such as the U.S. Environmental Protection Agency(EPA), the U.S. Army Corps of Engineers (COE), and the California Regional Water Quality Control Board 2 (RWQCB), to discuss opportunities for streamlining wetlands permitting within the HCP/NCCP program. Concurrently, a committee of landowners, developers, conservation groups, community organizations,agriculturalists, and government agency staff known as the East County Biodiversity Working Group Task Force,has been reviewing data and analysis regarding biological resources and land use in eastern Contra Costa and Alameda Counties. The collected data could be useful in the preparation of an HCP/NCCP. The Task Force is also seeking to recommend methods for improving the process of conserving biological resources. The HCP concept has been discussed at some length by the Task Force, and presentations have been made to the group, including a principal consultant in the San Joaquin County HCP. Discussions of the advantages and disadvantages of HCP/NCCP's continue, and the Task Force has not yet reached consensus on the issue. A report from the Task Force is expected later this year, and will include discussion both of resource data and policy or process recommendations. 3. Current Process for Complying with Endangered Species Acts Public agencies, developers, and other project sponsors currently address endangered species regulations individually on a project-by-project basis. Potential impacts to endangered species are considered and potentially mitigated within the California Environmental Quality Act (CEQA) process,but in many cases must also be addressed through individual consultation with the USFWS and CDFG. Regardless of regulatory venue, endangered species compliance typically requires: a) thorough field surveys of the site at appropriate times for endangered species; b) negotiations on mitigation, site design, and construction practices; and c) identification and procurement of any needed off-site mitigation and/or dedication of on- site mitigation(e.g., open space easements) The above compliance is performed individually by the landowrier/developer and the USFWS and CDFG in order to obtain an individual take permit(TTP)pursuant to CESA section 2081 and FESA section 10 when a non-federal action (i.e., project or activity) may jeopardize or impact a listed species, or its habitat. 1n Contra Costa County, the TTP is more often issuedunder section 7 of FESA which applies when a project has federal funding or requires federal permits, such as for wetlands. The local land use agency is usually not involved,but does separately negotiate mitigation under CEQA. The amount of time and funding dedicated to each of the above three tasks'varies, sometimes dramatically, from one project to another. Some project proponents in East County have incurred significant expense in this process. All project proponents must contend with some uncertainty regarding how long endangered species compliance will take,how much mitigation will be required, and what will happen in the future if unforeseen circumstances arise that affect a protected species before an TTP issued. In addition to endangered species requirements, CEQA (and NEPA if a federal project), and any 3 resource protection measures adopted by the local land use planning agency,project proponents must also comply with a number of other environmental regulations. For example, actions that could affect wetlands must have a thorough site survey and formal wetland delineation sanctioned by an appropriate regulatory agency. Such projects must also receive permits from the U.S. Army Corps of Engineers(CUE), and the Regional Water Quality Control Board(RWQCB). Depending on the project,the U.S. Environmental Protection Agency(EPA),USFWS, and CDFG might be involved in processing the wetlands permit from the CUE. A permit may also be needed from the Bay Conservation And Development Commission and others if the project is located on the shoreline. Projects affecting streams require a stream bed alteration agreement with CDFG and may also be subject to wetland regulations. Construction activities require a separate permit'from the RWQCB to control water quality impacts. Projects might also face local and other restrictions on impacts to prime agricultural lands. 4. How Regional HCPINCCP's Modify the Process for Endangered Species Compliance Regional HCP/NCCP's establish a coordinated process for permitting and mitigating the incidental take of endangered species which can take the place of the current, project-by-project approach. Rather than individually surveying, negotiating, and securing mitigation, project proponents typically receive an ITP by simply paying a fee,though some HCPINCCP's may contain alternative or additional permit conditions. The fees are collected by an implementation authority designated during development of the HCP/NCCP,often a Joint Powers Authority composed of representatives of local agencies. The implementation authority then uses the fee money, as well as grants and any other funding sources established in the plan, to purchase habitat lands or easements from willing sellers. Collected funds are also used for monitoring and any habitat enhancement or management actions. HCPINCCP's are intended to benefit developers by improving regulatory certainty,by obviating the need for surveys and mitigation negotiations, and by providing a coordinated, more cost effective system for acquiring mitigation. HCPtNCCP's are also intended to benefit species by replacing the current project-by-project mitigation with a coordinated system more suitable for protecting connected blocks of habitat in a biologically sound manner. Larger and connected blocks of conserved lands will increase the potential to benefit and preserve multiple species. Some other necessary or optional components of HCP/NCCP's include the following: 'In!2 surprises"• HCP's and NCCP's generally guarantee that fees and conditions of the incidental take permit will not deviate from the fees and conditions agreed upon in the HCPlNCCP, as long as the program operates as originally planned. This "no surprises" policy will remain effective even when the regulatory status of covered species change. For this reason, many plans extend coverage to species which are not currently listed as endangered or threatened,but have some potential for being listed(i.e., current candidates for listing, etc.). habitat - ur viaconservationem nt r e titlefromw'l l r : Many HCP/NCCP's use a combination of conservation easement and fee title acquisitions to 4 protect habitat. Under a conservation easement, the landowner receives compensation for on-going land stewardship in exchange for agreeing not to develop the lands. vQ_1ungaa participation: Many HCP/NCCP's provide project proponents with the option of not participating in the HCP and instead addressing endangered species on their own as occurred previously. However, since mitigation fees are calculated based on assumed levels of participation, it is important that the plan be financially attractiveto ensure that the participation rate matches expectations. hold harp? U provisions: Plans can include hold harmless provisions which provide assurances to those landowners adjacent to acquired preserves. financinz alamadves. Habitat mitigation can be financed with a combination of funding mechanisms,including flat,per-acre development fees, development fees which depend on the quality of habitat to be developed,grants from private,state, and federal sources, local bond or tax revenues,and other public or private funding sources. In most cases,plans are structured to be "pay as you go," meaning that habitat acquisition requirements are not determined up front,but rather keep pace with development. cont -ugd$ ng,: Mitigation lands that are purchased or placed under easement would usually continue to be grazed. Some limitations on grazing intensity and grazing near water bodies may be imposed on lards acquired or placed under easement. In HCPNCCP's where prime agricultural lands are purchased for habitat value(e.g.,in Yolo County),current agricultural activities are expected to continue. ma„bead ys roe s-ba ed glans Many of the first regional. plans developed in southern California were map-based, meaning that areas of development and areas of habitat protection and acquisition were explicitly mapped. More recent plans in the Central Valley have been referred to as process-based plans which do not map development or preserve areas, but simply establish a process for collecting mitigation fees, issuing permits, and purchasing mitigation lands. Both map and process-based plans can be related to general plans in order to assist with calculating fee amounts,while process-based plans may contain narrative descriptions of the habitats to be purchased. A hybrid of these two approaches has also been used which maps relative resource values and assigns lands mitigation credits based on this map. Lands with high resource values pay a relatively higher per acre fee to develop,but also receive relatively higher per acre mitigation compensation. 5. Options for Broadening Plan to Incorporate Other Permits and Policy Goals RCP's and NCCP's only provide incidental take permits for endangered species, but can be expanded to include permits for other natural resources such as wetlands. Some plans in southern California did not originally incorporate wetlands and other permits, and participants became frustrated that the process did not provide complete permit streamlining. Incorporating wetlands permits from the COB and the RWQCB primarily requires the complete involvement of these and other wetlands agencies,such as the BPA, in the planning process. Integrating wetlands permitting 5 and endangered species can be accomplished as the regulations are generally',either unrelated or complimentary. A potential difficulty relates to the emphasis on avoiding impacts in wetlands regulations,while endangered species regulations tend to promote mitigation of impacts - although there are some species,particularly plants, that may require full habitat preservation and may not be able to be mitigated. Options for streamlining CEQA compliance and for integrating other types of permits are possible and could be further examined. Since HCP's and NCCP's essentially involve a coordinated system for mitigating impacts, they can be integrated with or adapted to other policy initiatives. For instance, the funding and acquisition components of such a plan could also be used to purchase and protect open space and productive agricultural lands. Likewise, beyond sharing a financial mechanism, accomplishing open space protection and, perhaps to a lesser extent, protection of prime agriculture is compatible with the habitat protection needs under an HCP/NCCP. San Joaquin County's pending plan is titled "San Joaquin County Multi-Species Habitat Conservation and Open Space Plan"and;allows for both the purchase of land for habitat and open space values. In Yolo County's plan, all mitigation lands to be purchased are cultivated agriculture and protecting such activities is a central goal of the plan. 6. Process for developing the HCP/NCCP The following is a preliminary list of the steps that could be undertaken to prepare an HCP/NCCP should the local agencies in the East County elect to do so. • Determ,�ine the, oaraphic scone: The staff discussions with resource agencies to date have largely envisioned an East County Plan,dictated by the general physical separation from central Contra.Costa County by the Willow Pass ridge extending southeast toward the Kellogg Creek watershed, but also including the Marsh Creek Road and Morgan Territory Road areas. However,plan boundaries are flexible and can be expanded or narrowed by local agencies that participate in preparing the plan. • Develop a Memorandurn of er ingjWQjZ amonglocal en ' : The proposed MOU should cover participation, funding and management of the HCP/NCCP development process. Typically, the management structure would include a representative from each participating agency. This local agreement should formalize the membership, identify the Lead Agency and assign responsibilities for each agency, identify the boundaries of the plan area, the financing sources and amounts to develop the plan, establish the public process to oversee or advise in the development of the HCP/NCCP, and determine the policy,permitting goals and scope for the plan. • Develop r d m of A re with the-resource agencieg• A MOA is recommended to establish the relationship between the local agencies and resources agencies. An important purpose would be to establish how listed species and habitat will be addressed during the interim until an HCP/NCCP is adopted and implemented. Other essential elements would include identifying the planning area, the local participating agencies, the target species to be addressed, the Federal and State permits to be addressed (e.g., FESA Section 10 (a), affected Federal and State land ownerships,other HCP or multi-species protection plans existing 6 or being undertaken in the area(e.g.,private party plans), and the anticipated schedule for plan preparation,public review and agency review and adoption. • Select a consultant: A consultant having biological resources expertise and familiarity with developing an HCPiNCCP should be considered. The details of consultant selection, management, financing and staff coordination may be addressed in the local MOU. • Establish a Emblict v lve P • HCPINCCP programs typically involve substantial public outreach and a formalized public involvement process involving all interested parties to help guide and refine plan development. The MOU should define the structure and process for implementing public outreach and involvement. • 12gfi= goglg and gstablishr r thg HQEY—CCP: In accordance with the general description of permit and mitigation provided in section 4(How Regional HCP/NCCP's Modify the Process for Endangered Species Compliance), decisions would need to made on the following matters early in the process: (1) selecting the species to covered in the permit and identifying natural communities (habitat, vegetation types), (2) establishing a process for the identification of target species for each community,(3)identifying viable mitigation techniques (land or easement purchase)relating to land use and economic considerations of the area, and (4)determining the overall goals for species protection and recovery,if necessary. Consideration would be given to the appropriateness of a map or policy based HCPfNCCP in achieving the overall species protection,economic and open space goals 7. Preliminary Analysis Development of an HCPINCCP for the East County area could increase local control of land use decisions by locking in USFWS and CDFG permit approvals up front--replacing project- by-project permitting under state and federal agencies with a locally-administered conservation and permitting program. Additional potential benefits of a regional process include: • raising money to acquire land or easements by lowering permitting and mitigation costs to developers • improved certainty, permit streamlining, and "no surprises" for landowners and developers affected by endangered species regulations • improved protection for biological resources by incorporating regional-level analysis and mitigation to protect ecological processes rather than only declining species • purchase of community open space from willing sellers • removal of obstacles for using federal funds for transportation and other regional projects • potential for lowering local agency costs over the long term • improved regional or sub-regional interagency coordination • offers a mechanism for rewarding landowners for on-going resource stewardship • would allow the CCWD to fully utilize its Central Valley Project water supply contract • federal and state funding sources may be available for plan preparation,thereby further reducing individual landowner or developer costs. The USFWS has indicated they will 7 provide a listing of and support for potential fining sources for planning purposes. One such funding source may be the Environmental Protection Agency(EPA), Disadvantages and risks associated with preparing a regional HCP/NCCP could include: • some initial planning costs may shift from individual landowners to participating agencies • political uncertainty, including the possibility that some agencies may not participate, could remove themselves from the process at critical times, or could change their positions on components of the plan • landowner concerns and skepticism • conservation organization concerns and skepticism • significant time and effort involved in preparing such plans • as with all complex planning efforts involving multiple independent bodies,the potential exists for the planning process to fail to accomplish all intended goals • litigation risks Attachment: USFWS/CDFG joint letter dated March 18, 1998 JK/DP 9/30/98 j:Ujkopclhcpoct98.rep 8 US Fish&Wildlife Service CA Dept.of Fish&Game Sacramento Fish and Wildlife Office ` r P.0.Box 47 3310 El Camino Avenue,Suite 130 Yountville,California 94599 Sacramento,California 95821 d (916)979-2710 FAX(916)979-2723 lip 1-1-98»TA-0850 RECEIVED March 18, 1998 Mr. Jim Rogers Director,Board of Supervisors A P R 0 2 1998 Clerk of Board of Supervisors CLERK BOARD OF SUPERVISOR 651 Pine Street CONTRA COSTA CO. Martinez, California 94553 Subject: Purpose and Need for a Habitat Conservation Plan in East Contra Costa County, California Dear Mr. Rogers: On September 16, 1997,representatives of the U.S. Fish and Wildlife Service(Service)and the California Department of Fish and Game(Department)met with representatives from East Contra Costa County(County)local governments and special districts at Contra Costa"Water District's (CCWD)office. A number of questions were raised at that meeting regarding development of a Regional Multi-species Habitat Conservation Plan(HCP)and a State- authorized Natural Community Conservation Plan(NCCP). The primary questions posed, from agency staff*centered on the purpose and need for undertaking an HCP/NCCP. It is our intent, through this letter,to further communicate our perspective on the regulatory advantages to the County of preparing an HCP/NCCP,the mutual benefits gained by protecting',the County's sensitive and unique environmental resources,and reasons why we encourage the County and/or Cities to develop a HCP/NCCP in close cooperation with the Service and the Department. The Service and the Department are sending copies of this letter to policy makers and staff`at a number of agencies,as indicated in the attached list of recipients. Endang=d SqSgies in FastSsntra Costa County: The diverse habitat types, found in East Contra Costa County,provide habitat for numerous state and federally listed species. The federally threatened Alameda whipsnake (Masticophis lateralis euryxanthus)may be found in the hillside chaparral. The federally threatened vernal pool fairy shrimp(Branchinecta lynchi)may be found in vernal pools associated with grasslands. The California tiger salamander (Ambystoma cal forniense),a Federal candidate and State threatened species,may also be found in vernal pools or stockponds during the winter months,and in the associated grasslands during the remainder of the year. These grasslands are also utilized by the federally endangered San Joaquin kit fox (Vulpes macrotis mutica). Riparian areas,wetlands, Mr. Jim Rogers 2 and stockponds may also support the federally threatened and State species of concern California. red4egged frog(Rana aurora draoonio. These and other listed species have been seriously impacted by past development in the County. In addition,the Service is aware of numerous current projects not in compliance with the Endangered Species Act of 1973,as amended(Act), and have unauthorized "take",as defined below,of listed species: Section 9 and the implementing regulations in section 4(d)of the Act,prohibit the"tape" of any, fish or wildlife species federally listed as endangered or threatened,unless specifically authorized by the Service(or National Marine Fisheries Service for anadromous fish and marine marnmals). As defined in the Act,take means" . . . to harass,harm,pursue,hunt,shoot,wound,bill,trap, capture,or collect,or attempt to engage in any such conduct." "Harm" has been further defined to include habitat destruction,when it kills or injures a listed species by interfering with essential behavioral patterns such as breeding,foraging,or resting. 'fake, incidental to an otherwise lawful activity(referred to as"incidental take"),may be authorized by one of two procedures: If a Federal agency is involved with permitting,funding, or carrying out of the project, then initiation of formal consultation between that agency and the Service,pursuant to . section 7 of the Act, is required if it is determined the proposed project may affect a federally listed species. Such consultation results in a biological opinion addressing the anticipated effects of the project to the listed species and may authorize a limited level of incidental take. Non-Federal entities,engaging in otherwise lawful activities that may result in "take" of listed species,should obtain an"incidental take permit" pursuant to section I0(a)(1)(B)of the Act. To obtain an incidental take permit,the permit applicant must develop an HCP and submit it to the Service. The HCP must specify(among other things)the impacts likely to result from the taking, and measures the permit applicant will implement to minimize and mitigate such impacts. An HCP may also include conservation measures for federally proposed and candidate species. State listed species,and other species not listed under the Act at the time an HCP is developed or a permit application is submitted may also be included. Including unlisted species in an HCP can benefit the permittee, through coverage of such species under the permit, thereby ensuring the;terms of the HCP will not change over time with subsequent listings. In the past,most HCPs were completed for single landowners and relatively small areas. However,multi-species HCPs completed by local governments and covering thousands or even millions of acres are becoming more common. For example, such regional HCPs are underway or complete in San Joaquin, Sacramerfto,and Yolo counties. Mr.Jim Rogers 3 The California Endangered Species Act(CESA)prohibits tape of listed threatened and endangered species and candidate species,formally proposed for listing by the California Fish and Game Commission. CISSA was recently amended and is similar to the Act. The Department can authorize incidental take of listed species with appropriate measures to assure impacts are fully mitigated. The Department is currently drafting regulations to implement requirements of the amended.CESA. Separate authority is granted to the Department to authorize take through the NCCP. The NCCP approaches permitting from a large scale habitat and multi-species conservation perspective. An NCCP is similar to a multi-species HCP in that it can provide coverage for both listed and non-listed species that may be listed in the future. This coverage is accomplished in the context of an implementable plan,assuring the conservation of the covered species:and their habitat within the coverage area. The NCCP provides a mechanism for the State to provide consistency in mitigation requirements and to streamline permitting for projects consistent with the NCCP. Development of the NCCP would occur concurrently with the HCP and requirements would be similar to those required for compliance with the Act. Initial information feasibly used in the formulation of an NCCP for the area in question, has been developed through the East County Biodiversity Study. Additionally, a possible stakeholder group,which could provide valuable input into development of an HCP/NCCP, has been assembled through the East County Biodiversity Study working group. Regional HCPs/NCCPs establish a coordinated process for permitting and mitigating the incidental take of endangered species. Developers seeking coverage under the HCPCNCCP typically pay a mitigation fee and receive an incidental take authorization or permit for their project, consistent with the terms of the HCP/NCCP. Developers are then typically relieved of the expense of endangered species surveys and of individually securing mitigation. Funds collected via these fees,sometimes augmented with other funding sources,are pooled and used to purchase habitat from willing sellers. Such coordinated mitigation generally benefits species far more than project by project mitigation since it increases flexibility and enables purchase of connected and biologically rich blocks of habitat. Many plans purchase habitat with a combination of conservation easements and fee title transactions. Property owners who sell conservation easements are typically able to continue ranching or farming their land as before. Advantages Qf Ugional HCPs NC Currently,landowners may individually develop HCPs for federally listed species on their property. Likewise, CESA allows for incidental take on a `project-by-project" basis through issuance of a 2481 permit. While permitting requirements are generally consistent for the same species,requirements may vary for different species. Therefore,when an applicant must mitigate for more than one species, different requirements for each species can make it difficult to develop appropriate and cost-effective mitigation. The process of obtaining individual State and Federal permits can be time consuming due to the sheer number of individuai projects received by agencies and staffing limitations of the agencies involved. In addition, new State regulations Mr. Jim Rogers 4 require the Department to comply with the California Environmental Quality Act prior to issuing 2081 permits,possibly adding further delays resulting from the public review time. The development of regional HCP and/or NCCP will alleviate these problems, and provide certainty for landowners and developers in planning and regulatory expectations. Another important catalyst for development of an HCP/NCCP results from development of the CCWD's Los Vaqueros Reservoir Project(Los Vaqueros). In 1993,through the regulatory mechanism of section 7 of the Act,CCWD was designated the non-Federal representative for the U.S.Bureau of Reclamation,to act on their behalf in addressing endangered species issues for Los Vaqueros.The Service issued five biological opinions(Ref.Nos. 1-1-92-F-48; 1-1-93-F-35; 1-1-95-F-117; 1-1-96-F-110;and 1-96-F-151)addressing the impacts of 'Los Vaqueros on federally listed species. In the delta smelt opinion(1-1-93-F-35),the Service authorized incidental take of delta smelt based on an annual maximum water delivery of 148,040 acre feet by CCWD to its customers. The Service understands CCWD is approaching this maximum delivery amount. CCWD will require incidental take coverage from the Service to exceed this amount. To obtain incidental take coverage for additional water deliveries over 148,000 acre feet, CCWD,through the U.S. Bureau of Reclamation, must reinitiate consultation with the Service to address impacts on listed species. Future consultation on additional water deliveries must address direct,indirect and cumulative(i.e.,growth inducing) impacts of the project. This means the U.S. Bureau of Reclamation must consider direct impacts to aquatic species such as delta smelt,and also address impacts on listed upland species(i.e., San Joaquin kit fox), from increased urban development resulting from increased water deliveries. Therefore,CCWD cannot proceed to deliver additional water to their customers until measures to minimize and mitigate the impacts on listed aquatic and upland species have been developed and evaluated through section 7 consultation process. The section 7 process would be greatly facilitated if CCWD and local agencies within CCWD's service area obtained a section 10(a)(1)(B)permit through development of an HCP and NCCP process for Federal and state listed species. This would allow greater input from local agencies and affected stakeholders in developing a plan to address species, and the section 7 consultation could adopt the approved HCP/NCCP. As stated previously,the cost and procedural requirements of individual applicants far exceed what could otherwise be accomplished through a regional HCP/NCCP planning effort. In addition,increasing the planning area to include many landowners activities,under auspices of permit holders that are local government agencies, can spread the cost and allow for equitable and shared responsibility in meeting legal requirements under CESA and the Act. There are many benefits of such a region and multi-species HCP/NCCP to the County and its residents. A regional HCP/NCCP would: (1)maximize flexibility and increase options in developing mitigation programs;(2)reduce uncoordinated decision making which may result in incremental habitat loss for both listed and non-listed species;(3)reduce the economic and logistic burden of environmental compliance on individual landowners and streamline the responsibilities of local jurisdictions;(4)reward interested private landowners economically for resources on their property; (5)decrease permitting agencies' project review time and facilitate timely progression of projects; (6)bring a broad range of activities under the permit's legal protection; (7)allow Mr. Jim Rogers 5 input into the process by affected stakeholders; and(8)help maintain a quality environment for the benefit of the County's residents by setting aside.areas for open space and other recreational uses. Two of the largest benefits a regional HCPINCCP offers local jurisdictions are early identification of significant resource issues,and regulatory certainty and predictability in planning for future urban growth and development. Paten al exte;s: The geographic scope and species to be covered under an HCP/NCCP are flexible and, ultimately,are primarily the decisions of the permit applicant. The Service and the Department encourage local govenunents to undertake regional and multi species HCPs/NCCPs because of their effectiveness in guiding long-term planning for species conservation and reducing unforeseen resource conflicts. Funding for developing an HCP/NCCP can potentially be obtained through several sources. Such funds are often generated by local interests. However,the Service is aware of another regional planning effort that applied for, and received fluids from,the National Fish and Wildlife Foundation with assistance from a Iocal transportation agency and local jurisdictions. Although monies from CALFED(Category 3 funding)cannot be used for the HCP/NCCP development process,these monies could potentially be requested for acquisition of mitigation lands. Although no guarantees of obtaining these funds can be made, the Service and the Department would willingly provide letters of support. Section 6 of the Act allows for monies to be distributed,in coordination with the Service and the Department, to supplement funding of approved HCPs/NCCPS, if those efforts contribute to recovery of listed species. The draft Recovery Pian for Upland Species of the San.Joaquin Valley, California(1997)identifies portions of eastern Contra Costa County as a target area for protection of habitat for the San Joaquin kit fox. In addition,East Contra Costa County is important to recovery of the California red legged frog because it is located within the Central Valley Hydrographic Basin recovery unit, as described in the final rule(61 FR 25813 ). If the HCP/NCCP contributes to recovery of the San Joaquin kit fox,California red-legged frog or other federally listed species,applications for funds as described in section 6 of the Act could be submitted. We appreciate the cities',County's and CCWD's desire to know more about the HCP/NCCP process and acknowledge that Contra Costa County already undertaken significant strides in endangered species conservation. The on-going East Alameda/Contra Costa Biodiversity Study has proven to be a useful and effective forum for developing partnerships and shared interests between stakeholders. It has also generated a wealth of biological data which would greatly facilitate the development of an HCP/NCCP. We are fully committed to assisting County governments with the HCP/NCCP process. Our role in this process would be to provide advice and recommendations ori technical biological issues and regulatory requirements and standards,to serve as a member of the planning committee,to help facilitate agreement between stakeholders and,ultimately,to issue the appropriate permits. Mr. Jim Rogers 6 Initial decisions related to cast of development and implementation,size of the planning area, and species to be covered.,are extremely important and should be the focus of any subsequent meetings. We would also like to extend an offer to present an informational workshop on'the HCPINCCP process for various Board and Council members during the spring of 1998. We look forward to f irther discussions and the opportunity to present the workshop to you. Should you have questions regarding this letter or desire fairther assistance,please contact Ms. Cay Coude of the Service's Endangered Species Division at(916) 979-2725 or Carl 'Wilcox of the Department's Ecological Services at(707)944.5525. Sincerely, W ne S. White Brian winter Field Supervisor Regional Manager cc: Contra Costa County, Martinez,CA(Mr. Dennis Barry,Ms. Roberta Goulart, Mr. Val A 1 e x e f f and Mr.John Kopchick) ,C,: : C C)5