HomeMy WebLinkAboutMINUTES - 04211998 - C55 C.55
THE BOARD OF SUPERVISORS OF
CONTRA COSTA COUNTY, CALIFORNIA'
Adapted this Order on April 21, 1998 by the following vote:
AYES: Supervisors Uilkema, Gerber, DeSaulnier, Canciamilla and Rogers
NOES: None
ABSENT: None
ABSTAIN: None
SUBJECT: Correspondence
C.55 LETTER., dated March 18, 1998, from Wayne S. White, Field Supervisor, and Brian
Hunter, Regional Manager, US Fish and Wildlife Service, Sacramento Fish and Wildlife
Office, 3310 El Camino Avenue, Suite 130, Sacramento, CA 95 82 1, offering assistant to
the County and requesting the opportunity to present a workshop regarding the purpose
and need for a Habitat Conservation Plan in East Contra Costa County.'
*****REFER.R.ED TO COMMUNITY DEVELOPMENT DIRECTOR
IT IS BY THE BOARD ORDERED that the above recommendations as noted(*****) are
APPROVED.
I HEREBY CERTIFY THAT THIS IS A TRUE AND
CORRECT COPY OF AN AC'T'ION TAKEN AND
ENTERED ON THE MINUTES OF THE BOARD OF
SUPERVISORS ON THE DATE{SHOW/N.
ATTESTED4 ! !
Phil Ba elor,Clark of the Board of
Supervisors and County Administrator
By t. , � ,Deputy
c.c.Correspondents (I)
Community Development Director
"wA US Fish&Wildlife Service CA Dept.of Fish&Game
Sacrarmento Fish and Wildlife Office P.0.Box 47
3314 El Camino Avenue,Suite 130 Yountville,California 94599
Sacramento,California 95821
(916)979.2710
FAX(916)979-2723
1-1-98-TA-0850
RECEIVEDMarch 18, 1998
Mr.Jim Rogers APR
Director,Board of Supervisors 199$
Clerk of Board of Supervisors CLERK BOARD Or;syj FRv1soAs
651 Pine Street CONTRA COSTAE 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. 1t 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.
FndanQ=d Sp=ies in East Cg=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 wh psnake(Masticophis lateralis
euryxanthus)may be found in the hillside chaparral. The federally threatened vernal pool fairy
shrimp(Branchnecta lynchi)may be found in vernal pools associated with grasslands. The
California tiger salamander (Ambystoma californiense), 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 rnacrotis muttea). Riparian areas,wetlands,
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and stockponds may also support the federally threatened and State species of concern California
red-legged frog(Rana aurora draytonii). 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:
Endangered S=ies Regulations and Ate ative Me=For Com lince:
Section 9 and the implementing regulations in section 4(d)of the Act,prohibit the "take" 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 mammals).
As defined in the Act,take means" . . .to harass,harm,pursue,hunt, shoot,wound,kill,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 10(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 taping,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 ether 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. j
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, Sacramento, and Yolo counties.
Mr. Jim Rogers 3
The California Endangered Species Act(CESA)prohibits take of listed threatened and
endangered species and candidate species,formally proposed for listing by the California Fish
and Game Commission. CESA 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 passible stakeholder
group,which could provide valuable input into development of an HCP/NCCP,has been
assembled through the East County Biodiversity Study working group.
How Re2ional HCPG/N CPs Work:
Regional HCPs/NCCPs establish a coordinated process for permitting and mitigating the
incidental take of endangered species. Developers seeking coverage under the HCP/NCCP
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.
Ad n Age#&giorW _H_CPIZNLCPs.
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 2081 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 individual projects received
by agencies and staffing limitations of the agencies involved. In addition, new State regulations
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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 a 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
incidentaltake of delta smelt based on an annual maximum water delivery of 148,000 acre feet
by CCWD to its customers. The Service understands CCWD is approaching this maximum
delivery amount. CCWD will require incidental tape 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 HCPINCCP.
As stated previously,the cost and procedural requirements of individual applicants far exceed
what could otherwise be accomplished through a regional HCPINCCP 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.HCPtNCCP would. (1)maximize flexibility and increase options in developing
mitigation programs;(2)reduce uncoordinated decision making which may result in incremental
habitat lass 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
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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 HCP/NCCP offers local jurisdictions are early
identification of significant resource issues,and regulatory certainty and predictability in
planning for future urban;growth and development.
P4#2a1cit Sin
The geographic scope and skies 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 governments 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 funds from,the National Fish and Wildlife
Foundation with assistance from a local 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 Planfor Nyland Species of the fan 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 describedin 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 CC D's desire to knew 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 rale
in this process would be to provide advice and recommendations on 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 b
Initial decisions related to cost 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
HCP/NCCP process for various Board and Council members during the spring of 1998.
We look forward to further discussi