HomeMy WebLinkAboutMINUTES - 06062000 - D4 Contra
BOARD OF SUPERVISORS Costa
T°' ° County
FROM: DENNIS M. BARRY, AICD
COMMUNITY DEVELOPMENT DIRECTOR
DATE: June 0, 2000
SUBJECT: Report on Proposed Development of a Habitat Conservation Plan for Eastern
Contra Costa County
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATION
1) AUTHORIZE the County Administrator, or his designee, to execute an agreement with
the Cities of Antioch, Brentwood, Clayton, and Pittsburg, the Contra Costa Water District,
and the East Bay Regional Park District for the preparation of a Draft Habitat
Conservation Plan (HCP) for eastern Contra Costa County;
2) ACKNOWLEDGE correspondence received from the Contra Costa Council, Save Mount
Diablo/Greenbelt Alliance, and the Contra Costa County Citizens Land Alliance on this
subject, and
a) DETERMINE that the principles and comments on developing an HCP provided by
these organizations generally define appropriate guidelines for preparation of an
HCP, and RECOGNIZE that inconsistencies will need to be addressed during the
planning process, or
b) ENDORSE the integrated set of participation principles in Attachment A which were
compiled by staff;
3) SET a deadline of three years for completion of the HCP, and DIRECT the Community
Development Director to provide the Board with a progress report on HCP development
at a minimum of six month intervals, or more often as requested.
CONTINUED ON ATTACHMENT: X YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMM ITT E
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON June 6 . 2000 APPROVED AS RECOMMENDED OTHER xx
SEE THE ATTACHED ADDENDUM FOR BOARD ACTION
AND VOTE
VOTE F SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
_ UNANI US (ABSENT AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE
ABSENT: ABSTAIN- BOARD OF SUPERVISORS ON THE DATE
SHOWN.
Contact: John Kop 25) 335-1227 ATTESTED June 6 , 2000
cc: Communitvelop nt Department (CDD) PHIL BATCHELOR, CLERK OF
County ministrator BOARD OF SUPERVISORS
Cou Counsel AND COUNTY ADMINISTRATOR
P is Works
gricultural Commissioner
S:\Conserv\John\hcpjan00.bo.doc BY -,t , DEPUTY
Report on Habitat Conservation Plan
June 6, 2000
Page 2
FISCAL IMPACT
The proposed interagency agreement would impose no direct costs on the County. The
costs of preparing the Habitat Conservation Plan (HCP), including County staff costs to
manage the Habitat Conservation Plan Association (HCFA) and the HCP project, would
be paid by other organizations and with grants. However, by participating in the effort, the
County would accept a portion of the HCPA's liability. The County would also incur some
indirect staff costs related to tasks other than managing the HCPA, such as representing
County interests at meetings.
If an HCP were eventually to be completed and approved by the County and other
agencies, implementation would also carry costs, including the costs of land acquisition,
management, and administration. A key task in developing an HCP is to identify these
costs and establish a mechanism for funding them. Because HCPs tend to have a long
duration and because they can aggregate mitigation funds from many developments (not
to mention public funding sources), the overall cost to implement can be high. For
instance, the economic analysis for the nearly complete San Joaquin County HCP
estimates that the total cost of implementing that very large plan over 50 years is $263
million. The approach San Joaquin County is proposing to fund these costs is to collect
fees on new development ($1500 per acre for most types of land), to collect fees from
other activities which impact resources and need permits (such as mining), and to obtain
public funds for the remainder (about one-third) through grants and potential local bond
measures.
It is impossible to estimate the cost of implementing an HCP for eastern Contra Costa
County before any pian is drafted. However, the cost would be substantially less than the
cost of the San Joaquin plan as the latter covers the entire 900,000 acre county, would
provide a permit for 100,000 acres of new development, and would acquire and manage
100,000 acres of land. For comparison, the planning area for the proposed East County
HCP is 185,000 acres, the approximate area of existing urbanization in east county is
50,000 acres, and about 5,000 acres is proposed for new development within existing city
boundaries (the cities also envision growth outside their current boundaries, but gauging
speculated growth far in to the future is difficult—see below). It is also impossible at this
time to estimate how much money would be spent on permits and mitigation on a project
by project basis over 50 years if no HCP were developed. The San Joaquin County
economic analysis concluded that the programmatic approach to permits was more cost-
effective for all parties.
BACKGROUND/REASONS FOR RECOMMENDATIONS
On January 25, the Board of Supervisors heard a report on the HCP and the proposed
interagency agreement to cooperatively develop an HCP for eastern Contra Costa County
(a regional HCP is a tool for receiving endangered species permits and possibly other
permits over a broad area by establishing conservation measures, including coordinated
purchase of habitat as mitigation for impacts). At that time, the Board declared its intent
to participate in the development of an HCP and directed staff to do the following before
bringing the issue back to the Board for a final decision: 1)work with the cities and other
local agencies to determine their interest in and support for the concept; 2) conduct
additional outreach to the various stakeholder groups; 3) estimate the amount of future
growth in the area to assess whether there was enough new development potential to
justify preparation of a regional conservation plan. This report documents the staff work
on the above three items.
Additional background on the HCP proposal and on the advantages and disadvantages
of HCPs in general can be found in the attached staff reports from the January 25, 2000
and December 7, 1999 Board meetings. Since the most recent meeting, County Counsel
has reviewed and approved the HCPA Agreement as to form with only minor revisions (a
copy of the final version of that proposed agreement is also attached). The summary of
Report on Habitat Conservation Plan
June 6, 2000
Page 3
the Agreement contained in the December 7 staff report remains accurate. However, staff
have received notice from the U.S. EPA that our application for grant funds for
development of the HCP was successful. EPA has agreed to award $75,000 to the effort,
increasing the amount of committed funding to $510,000(including $325,000 from Contra
Costa Water District, $100,000 from the State Route 4 Bypass Authority as a permit
condition, and $10,000 from the City of Clayton)'. The County may decline the grant if the
Board chooses not to participate in the HCP or it may ask EPA to award the funds to other
local agencies that do decide to participate.
Actions of Cities and Other Local Agencies on HCP Proposal: Consistent with the
action of the Board of Supervisors of January 25, 2000, the HCP proposal was presented
to the city councils and boards of directors for the six other agencies which would be
involved in developing the HCP for eastern Contra Costa County. The Cities of Antioch
(May 23), Brentwood (March 28), and Clayton (April 18), the Contra Costa Water District
(April 5), and the East Bay Regional Park District (May 16) approved the HCPA Agreement
and agreed to participate in developing an HCP. As a part of its action, Antioch approved
a modified version of the 18 participation principles recommended by the Contra Costa
Council and took the position that, should grant applications not be successful in securing
the additional funding needed to complete the HCP, that the Contra Costa Water District
should cover the shortfall. The City of Pittsburg considered the issue on April 3 and voted
to delay taking action on the proposal until after the City of Antioch and the County had
acted, viewing those agencies as having a greater stake in the issue.
Additional Stakeholder Outreach: As directed, County staff conducted additional
outreach to individuals and groups with an interest in the HCP proposal. A summary of
this outreach is presented below. In most cases, other local agency staff were also
involved, including the March 8 meeting with two Contra Costa Council task forces which
County staff were unable to attend.
• Local agency staff made a presentation to the Land Use and Transportation Task
Forces of the Contra Costa Council on March 8 of this year. Staff also presented and
responded to questions at the April 21 Contra Costa Council Board of Directors meeting
where the Council's position on the HCP was adopted. Another presentation was made
to the Contra Costa Council's Water Task Force on May 16.
• Local agency staff met with the Contra Costa County Citizens Land Alliance Board of
Directors on April 13 to discuss the HCP and answer questions.
• Local agency staff met with representatives of several conservation organizations,
including Save Mount Diablo, the Sierra Club, and the Nature Conservancy, on May 8
to discuss the HCP and answer questions.
• Local agency staff invited Mike Spear, Manager of California/Nevada Operations for the
U.S. Fish and Wildlife Service to a meeting with a range of stakeholders on May 3.
Stakeholder organizations represented at that meeting included the Contra Costa
Council, the Home Builders Association, the California Alliance for Jobs, the Greenbelt
Alliance, Save Mount Diablo, and the Citizens Land Alliance.
• Local agency staff met with representatives of the Plumbers and Steamfitters Local 159
and the Central Labor Council on May 24 to discuss the HCP and answer questions.
• In addition to the above, it should also be mentioned that a committee of landowners,
conservationists, developers, community organizations and government agencies
(including County staff) called the East County Task Force convened monthly meetings
1 We estimate the cost of developing the plan to be $650,000 plus a 10% contingency for a total cast
estimate of$715,000. CCWD would pay half of the contingency. The HCPA Agreement contemplates
raising the remainder of the cost estimate ($140,000 plus $32,5000 for the contingency)through grants
from the public and private sector.
Report on Habitat Conservation Plan
June 6, 2900
Page 4
from April of 1997 to May of 1999 to discuss biological resource conservation issues
(the Biodiversity project). Many of the topics discussed and recommendations made
concerned endangered species permitting and conservation planning.
• Beyond the larger meetings described above, substantial additional contact has
occurred between staff and individuals representing a broad range of interests and
points of view to explain the HCP proposal and answer questions.
Comments Received From Stakeholder Groups on the Need For Establishing
Principles to Guide Participation in the HCP Effort: Several of the stakeholder groups
have submitted written comments on the HCP proposal (please see attached letters from
the Contra Costa Council, Save Mount Diablo/Greenbelt Alliance, and the Contra Costa
County Citizens Land Alliance). The letters from the Council and the conservation
organizations recommend that participating agencies incorporate some principles of
participation into the decision on initiating the HCP process. By doing so, the Board and
other agencies could, in effect, set parameters or guidelines on the development of the
HCP. In the view of staff, establishing such principles would be a positive addition to any
action to move forward on the HCP by focusing the planning effort and recognizing at the
outset the important role stakeholders will play in any HCP process.
Should the Board elect to incorporate these principles in its action on the HCP, two
alternative mechanisms are proposed. The first option would simply recognize that the
principles and comments received are not entirely compatible and indicate that such
differences need to be addressed during the planning process. The second option would
incorporate an integrated set of participation principles prepared by staff and included in
Attachment A. Of course, the Board may also edit the staff document or selectively
endorse the original recommendations of the stakeholder groups.
The integrated set of principles presented in Attachment A were based on the principles
conveyed by the stakeholder organizations, but were modified by staff to remove obvious
contradictions. The Contra Costa Council's principles were discussed in detail at a May
3 meeting with USFWS management attended by a variety of interest groups. The
discussion there inspired most of the modifications reflected in the integrated list.
However, County staff did apply judgement in exactly how the lists were integrated, so the
combined principles are appropriately described as a staff document. Staff also made an
attempt to address comments made by the Citizens Land Alliance in the principles and
included an additional principle not mentioned elsewhere related to permitting of public
infrastructure projects.
The primary inconsistency among the specific recommendations received relates to how
implementation of the HCP (habitat acquisition and management, etc.) should be funded.
The Contra Costa Council's letter favors public funding. The letter from the conservation
groups favors developer funding. Full reconciliation of those views may be premature
since a plan has yet to be drafted and the ultimate content of the plan may influence the
funding strategy. Pians that are primarily intended to provide permits and coordinate
mitigation for private developers are usually funded mainly by fees on development. Plans
that also provide permits for public agencies or that attempt to address broader goals, such
as provision of open space to the public, generally also include a public funding component
(e.g., about one third of the funding for the San Joaquin County HCP is proposed to come
from public funding sources). The flexibility in how HCPs are funded allows an opportunity
which does not readily exist now for more fairly distributing the costs of habitat protection,
but defining and reaching agreement on such an allocation system would be a key task in
development of the HCP.
Identifying specific landowner comments: The correspondence received from the
Contra Costa County Citizens Land Alliance was submitted several months ago and was
not framed according to principles of participation as was the case with subsequent letters
from other groups. Likewise, the CLA letter presents a series of comments on the proposal
and expresses an interest in providing input should the proposal move forward, but it does
Deport on Habitat Conservation Plan
June 6, 2000
Page 5
not specifically support the proposal nor indicate which features would make the plan
supportable. Nonetheless, should the HCP proposal move forward, it is important that
landowner concerns be incorporated in the process.
To this end, we have attempted to incorporate landowner concerns into the principles in
Attachment A. In addition to concerns described in the CLA letter, we also attempted to
address comments received during meetings with the CLA Board and staff. These
additional comments included the following:
• wetlands permits should be included in any HCP;
• landowners with property near lands acquired through the HCP should be protected
from the possibility of increased regulation due to their new proximity to managed
habitat lands (concern was also expressed that San Joaquin County's efforts to provide
such assurances may have been hampered by language in the federal Endangered
Species Act);
• landowners should be protected from the possibility that land or easement acquisitions
through the HCP could physically isolate their land from utilities and infrastructure and
trigger additional policy hurdles in future requests for land use changes and permits.
Many of the issues raised by the CLA in their letter and in meetings were also raised in the
letter from the Contra Costa Council. Also, as with the comments received from other
groups, some issues raised by the CLA are difficult or impossible to resolve or respond to
at the outset of the planning process.
Estimating future growth in eastern Contra Costa County: As explained previously,
the Board directed staff to provide estimates to assess whether there was enough new
development potential to justify preparation of a regional conservation plan. To this end,
we surveyed staff from each involved city, and requested they provide a generalized
accounting of un-built, proposed or potential projects that had been approved by that city
or were under some form of review by that city. City staff were also asked to include only
those projects which had some potential for receiving endangered species and other
environmental permits through the HCP. Projects under construction now or
redevelopment/in-fill projects with no impact to natural resources on-site were excluded.
Interpreting such estimates is extremely difficult since it is impossible to know if a potential
project will ever actually be approved, if annexation will occur, etc. Likewise, the
contemplated changes to the Urban Limit Line add additional uncertainty. Finally, HCPs
typically have a 35 to 50 year term, much longer than the General Plans of cities and the
County, so forecasting growth over the likely life of an HCP is problematic.
To reflect the above uncertainties, we have separately tabulated various categories of
potential future growth, beginning with proposed and approved growth within city limits:
Antioch (2 projects) 2900 acres 3300 to 6600 units + non-residential
Brentwood (5 projects) 1700 acres 3800 units + non-residential
Clayton (1 project) 50 acres 50 units + non-residential
Pittsburg (2 projects) 300 acres 1200 units + non-residential
Total in cities: X5000 acres X8300-11,400 units{+non-residential)
Proposed or potential projects outside of city limits but under some form of review by a city
are tabulated below:
2 All such potential developments are currently under the County's land use authority and are designated
for agricultural or other non-urban uses, so data on acreage and units should be viewed as estimates of
potential future growth that may be desired or contemplated by cities but cannot be formally considered by
them without action by a separate government agency. Such admittedly uncertain estimates are included
in this report because: a)they help answer the question on potential future desire for permits under an
HCP; and b) because the long duration of HCPs justifies a less refined approach in estimating potential
future growth.
Report on Habitat Conservation Plan
June 6, 2000
Page 6
Antioch (4 projects) 1900 acres 1900 +? units + non-residential
Brentwood (2 projects) 820 acres 1640 units + non-residential
Clayton (1 project) 425 acres 240 units + non-residential
Pittsburg (3 projects) 400 acres 650 units + non-residential
Total for cities —_3500 acres _-4400 +? units + non-residential
outside city limits:
Finally, un-built, approved projects in the County or proposed projects under current review
by the County:
County(Cowe113) 4300 acres 5200 units plus non-residential
Total County: X4300 acres x5200 + non-residential
If the HCP were to cover the northern and shoreline areas of east county, additional un-
built projects in the County's jurisdiction would also be candidates for receiving permits
through the HCP. Such projects are not listed because the HCP might not attempt to
provide permits for such areas and because the projects in question may be built before
any HCP is completed. Likewise, projects in Oakley are not listed because Oakley has yet
to consider participation in the effort.
In addition to private development , an HCP might also provide permits and regulatory
assurance for public infrastructure projects needed to accommodate existing, approved,
and planned residential development. Examples of public infrastructure projects that could
potentially receive permits and assurances include: the State Route 4 Bypass, other
regional and city arterial roadways, Contra Water District's Multipurpose Pipeline and
federal water supply contract, the Brentwood wastewater treatment plant expansion, the
Randall Bold Water Treatment Plant expansion, and flood control projects throughout east
County and on East Antioch Creek in particular.
To conclude, staff believe that, though growth potential in eastern Contra Costa County is
unlikely to approach the scale seen in some neighboring counties that are preparing HCPs,
future urban growth and public infrastructure needs in the area over the next 35 to 50 years
are large enough and spread among enough different jurisdictions to justify pursuing
coordinated regional permitting via an HCP.
Attachments:
• Attachment A, "Principles for Participation: East Contra Costa County Regional Habitat
Conservation Plan", compiled by staff from stakeholder group comments
• Correspondence received from the Contra Costa Council, Save Mount Diablo/Greenbelt
Alliance, and the Contra Costa County Citizens Land Alliance
• Final version of the HCPA Agreement
• January 25, 2000 Board Carder
• December 7, 1999 Board Order
• September 30, 1998 multi-agency Staff Report explaining the HCP concept
• Chart comparing features of other HCPs in Northern and Central California
S:\Conserv\John\hcpjun00.bo.doc
3 The acreage and units figures provided reflect a pending application before the County but appear
speculative given recent newspaper reports regarding the property.
Attachment A
PRINCIPLES OF PARTICIPATION:
EAST CONTRA COSTA COUNTY REGIONAL HABITAT
CONSERVATION PLAN
Compiled for the June 6,2000 meeting of the Contra Costa County Board of Supervisors by Community Development
Department staff based on comments received from the Contra Costa Council,Save Mount DiablolGreenbelt Alliance,
and the CCC Citizens Land Alliance. Please see staff report far details.
1. The U.S. Fish and Wildlife Service(USFWS) and the California Department of Fish and
Game (CDFG) should allow development consistent with local plans to proceed as before
(in accordance with existing permitting requirements) until any HCP is implemented.
2. The plan must be based on respectable and credible biological information on the
presence of endangered species and on sound scientific analyses, i.e. the need exists and
the program will produce the intended result. A scientific advisory committee should be
created and there should be independent peer review by scientists specializing in
conservation biology.
3. USFWS and CDFG must agree in advance not to unreasonably withhold approval of the
HCP nor insist on modification after all parties have agreed to the process and local
agencies have approved the resultant HCP.
4. USFWS, CDFG and the plan sponsors should agree to hold periodic reviews during the
development of the plan to avoid any major disagreements later.
5. The Incidental Take Permit must be totally consistent with the approved HCP.
6. Any HCP must have a"no surprises" clause consistent with the current federal policy.
Should the no surprises clause be invalidated by court action, the HCP implementing
agreement should be terminable by local agencies.
7. Consistent with the "no surprises" policy which precludes changes to the terms of permits
based on future biological conditions, the plan should not impose costs of any contingent
mitigation on private property owners. However,the plan may include inflation
corrections in the mitigation fee, different fees for different specific impacts, and
assurances that funding keeps pace with habitat protection benchmarks established in the
HCP conservation strategy.
8. The plan should not include any provision for the use of eminent domain.
9. Habitat areas acquired through the plan must be within Contra Costa County.
Expenditure of funds collected to protect habitat should be guided primarily by biological
considerations. Economic development opportunities and public open space value should
be secondary considerations in spending habitat protection funds.
10. Properties bordering lands to be used as mitigation must be protected from any impacts
caused by the mitigation program..
11. Participation in the planning process by any property owner does not constitute
agreement that use of the property produces any impact on endangered species.
12. Opportunities for site-by-site planning and permitting by individual property owners
should be continued
13. The plan must be economically feasible to implement and the total cost of
implementation of the plan, including soft costs, land acquisition,maintenance and
monitoring must be known prior to adoption.
14. The plan should provide for the issuance of a programmatic 404 permit and identify any
required wetlands mitigation. Alternatively, the HCP must be accepted as tacit approval
by USFWS of any 404 permit application to the U.S. Army Corps of Engineers within
the affected area and consistent with the HCP.
15. There must be a committee of stakeholders established in advance of the planning
process which includes landowner representatives, environmental organizations, and
other interested parties. A similar committee should be established for implementation of
any approved HCP.
16. Funding of the HCP proposed for East Contra Costa County should be as broadly based
as is justified by the purpose and content of the plan when written. Cost allocations
should be guided by regulatory obligations, cumulative responsibility for impact, and by
who benefits from non-regulatory components of the plan. Developer fees for permits
and public funds,possibly including water rates and/or bond funds, should be included.
17. The HCP's conservation strategy should provide full recognition of past and future public
and private habitat and open space acquisition and other mitigation efforts. Existing
public lands should not be considered for future species mitigation, since many of these
we-42221
Attachment A
areas were acquired for other purposes. Certainly such areas can be considered for
limited species enhancement projects,but the focus should be on preservation of habitat
not already protected or publicly managed. Mitigation should result in expansions and
enhancements of preserved habitat rather than restrictions on use of existing public lands.
18. There should be federal participation in HCP funding since this effort is a pass-through of
obligations imposed by USFWS on other federal agencies under Section 7 of the
Endangered Species Act.
19. The plan should rely on avoidance as the primary means for addressing irreplaceable
resources such as creeks, wetlands, and endangered native plant communities.
20. The HCP should not lock in permanent uses before conservation easements or fee title
land interests are purchased.
21. USFWS and CDFG should allow public infrastructure projects, such as those for roads,
highways,water delivery, sanitation, storm drainage, and flood control to proceed in
accordance with existing permit requirements in an expeditious and timely manner before
an HCP is implemented.
Key to how the above principles were compiled:
1)Based on CC Council#1,• clarifications added
2) Combines CC Council#2, CC Council introductory sentence, and SMDIGreenbelt#2
3)Based on CC Council#3
4)Based on CC Council#4
5)Based on CC Council#5
6)Based on CC Council #6
7) Combines CC Council#7 and SMDIGreenbelt #6
8)Based on CC Council#8
9) Combines CC Council#9 and SMDIGreenbelt#3
10)Based on CC Council#10, but also attempts to address specific comments of CLA
11)Based on CC Council#11
12)Based on CC Council#12, but language adopted from Last County Task Force Report
13)Based on CC Council#13
14)Based on CC Council#14, but also attempts to address specific comments of CLA
15) Combines CC Council#15 and SMDIGreenbelt #8
16) Combines CC Council#16 and SMDIGreenbelt#5
17) Combines CC Council#17 and SMDIGreenbelt#4
18)Based on CC Council#18
19)Based on SMDIGreenbelt#1
20)Attempts to address specific comments of CLA
21)Developed by staff
we-42221
ADDENDUM TO ITEM DA
.dune 6, 2000 Agenda
On this date, the Board of Supervisors considered the report on the proposed
development of a Habitat Conservation Plan for Eastern Contra Costa County.
Present were Dennis Barry,Director, Community Development Department and Silvano
Marchesi, Chief Assistant County Counsel. John Kopchik, Community Development
Department,presented the staff report and recommendations.
The Board discussed the matter.
Public comment was opened, and the following people appeared to speak:
Ken Sanchez,U.S. Fish and Wildlife Services, 2800 Cottage Way, Rm W 2605,
Sacramento;
Jim Jakel, Contra Costa Council, 877 Ygnacio Valley Road., #202, Walnut Creek;
Mike Vukelich, P.O. Box 20060, El Sobrante;
Sarah Mora, Farm Bureau, 5554 Clayton Road, Concord;
Ron Rives, Seeno Construction, 4021 Port Chicago Highway, Concord;
Marguerite Kauble, 725 Kendall, Crockett;
Jim Gwerder, CCC Citizens Land Alliance, P.O. Box 53, Byron;
Henry Alker, Southport Land and Commercial Co., 155 Montgomery Street, #52,
San Francisco;
Brad Olson, East Bay Regional Park District, 2950 Peralta Oaks Court, Oakland;
Dennis McCormac, Contra Costa Water,P.O. Box H2O, Concord;
Seth Adams, Save Mount Diablo, 1196 Boulevard Way, #10, Walnut Creek.
Following the speakers,the Board continued their discussion.
Supervisor Canciamilla moved that the Board decline to participate financially or with
staff support in the development or preparation of a Habitat Conservation Plan for
Eastern Contra Costa County. Supervisor DeSaulnier seconded the motion.
The Board continued to discuss the issues.
Supervisor Gerber offered a substitute motion. She suggested tabling the action until
after the Board considered and made a decision on the proposed Urban Limit Line
change. Supervisor DeSaulnier stated he was in agreement with the motion, and
suggested amending it to continue the matter for 7 months. There was no second to the
motion.
Supervisor Canciamilla advised that he did not object to tabling the matter. He stated that
if there was going to be an amendment, he would offer an alternative motion. He moved
that the Board decline to participate in the Habitat Conservation Plan at this time; and
that the Board table the matter for further discussion for a period of one year, that would
allow time for newly elected officials to become acquainted with the matter.
Supervisor Gerber stated she was concerned about the extended period of time.
Supervisor Gioia seconded the motion.
The vote was as follows:
AYES: SUPERVISORS GIOIA,UILKEMA,DeSAULNIER and CANCIAMILLA
NOES: NONE
ABSENT. NONE
ABSTAIN: SUPERVISOR GERBER
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APR 2 6 2000
CLU7,f ngot£o r;
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April 24, 2000
Donne Gerber
Chair, Contra Costa County Board of Supervisors
651 Pine Street
President No. Wing, 0 Floor
Gary W.Craft,AICP
Craft Consulting Group
Immediate Past President Dear Supervisor Gerber,
Bill Gray
Witham R.Gray&Company
President deet Enclosed with this letter is a copy of the Contra Costa Council's
Hon waiter
direcfor.P„nhc Affairs recently adopted policy position with respect to Habitat
Pacific Gas a Electric Co Conservation Plans (HCP). In the coming weeks you are slated
Vies President
Task Forces to consider entering into a participation agreement with other
Vicky Do Young
Office Property Agent agencies to pursue the preparation of an NCP. We strongly urge
Grubb a Ellis you to consider each of the 18 elements of our policy position
Vies President
Force
Task Forces before agreeing to be a participant.
Hermann Weim
Principal
ICL Consulting Our policy position was developed after many hours of meetings
Vice President
Finance between several of our different Task Forces and following
Rick Wiselengthy discussion by our Board of Directors. We feel without the
gr
Regianal President a/
Contra Costa franking Center incorporation of these principles an NCP will not be an effective
Vice President planning tool for the community.
Events
Kit Niemeyer
External Affairs Leader
Kaiser Permanente Should you have any questions or concerns regarding this policy
Vita President statement or would like further information, please don't hesitate
Communications
Tomi Van do Brooks to contact me.
Principe,
VdB Communications
Executive Director cerely,
Jim Jokei
Jim Jakel
Executive Director
Contra Costa Council
cc: Supervisors Uilkema, DeSaulnier, Gioia, Canciamilla;
CCWD; East Bay Regional Park District; City of Antioch and
Pittsburg.
877 Ygnado Valley Road, Suite 202,Walnut Creek, CA 94596 925. 944-8975 925.944-8999 fax email wouncilapacbell.net Website:cccouncil.org
CONTRA COSTA COUNCIL POSITION
EAST CONTRA COSTA COUNTY REGIONAL HABITAT
CONSERVATION PLAN
Introduction
• There is considerable concern over the justification for this massive mitigation program.
The only purpose and legitimate basis for an HCP is the presence of multiple listed
species within an area in which future development is expected to occur.
• In a recent federal court case,the court found explicitly that USFWS must establish the
existence of endangered species on land before restricting habitat modification, and it
cannot shift the burden ofproof to that of the landowner proving absence of the species
(Arizona Cattle Growers' Assn. v. U.S. Fish& Wildlife Service, 1998,U.S. District
Court).
• More recently, in Defenders of Wildlife v. Bernal, 00 C.D.O.S. 1477 (9a' Cir. Feb.29,
2000),the Ninth Circuit Court of Appeal ruled that"the designation of critical habitat has
no effect on non-Federal actions taken on private land even if the private land is within
the mapped boundary of designated critical habitat." This counters the practice of
USFWS to declare areas in which there is no evidence of presence of endangered species
as critical habitat in order to gain jurisdiction.
• The species for which evidence of presence exists in East Contra Costa County do not
require a program of this magnitude. No certain evidence of species which would require
such a broad program has been produced. In the absence of such evidence, the program
is much more an HCP for the sake of an HCP instead of positive protection for any
endangered species.
• It is of further concern that instead of producing this evidence,intimidation and threats of
holding up important public projects have been used. The net effect of the proposal is
that not only must the citizens of Contra Costa County fulfill and pay for its,growth
management program,they would also have to pay for the HCP as a condition of being
allowed to implement growth management.
Position
Under proper conditions, an HCP may be an effective method of dealing with the presence of
multiple endangered species. Any HCP must be justified by clear evidence of such presence and
should include the following principles:
1. Development consistent with local General Plans should be allowed to proceed as before
until any HCP is implemented.
2. The plan must be based on respectable biological surveys and sound scientific analyses,
i.e. the need exists and the program will produce the intended result.
r
3. USFWS must agree in advance not to unreasonably withhold approval of the HCl'' nor
insist on modification after all parties have agreed to the process and local agencies have
approved the resultant HCP.
4. USFWS and the plan sponsors should agree to hold periodic reviews during the
development of the plan to avoid any major disagreements later.
5. The Incidental Take Permit must be totally consistent with the approved HCP.
6. Any HCP must have a"no surprises"clause, meaning that any new listings in the future
are covered by the plan and no further mitigation at all can be imposed. Should the no
surprises clause be invalidated by court action,the HCP should be terminated.
7. The plan should not impose costs of any contingent mitigation on private property
owners.
8. The plan should not include any provision for the use of eminent domain.
9. Priority for habitat areas established by the plan should be given to property outside the
urban limit line.
10. Properties bordering lands to be used as mitigation must be protected from any impacts
caused by the mitigation program.
11. Participation in the plan by any property owner does not constitute agreement that use of
the property produces any impact on endangered species.
12. Public agencies and private property owners should have a right to opt out of the
HCP.
13. The plan must be economically feasible to implement and the total cost of
implementation of the plan, including soft costs, land acquisition, maintenance and
monitoring must be known prior to adoption.
14. The plan should provide for the issuance of a programmatic 444 permit and identify any
required wetlands mitigation. At the very least,the HCP must be accepted as tacit
approval by USFWS for any 404 permit application to the U.S. Army Corps of Engineers
within the affected area.
15. There must be an implementation oversight committee established in advance for the
HCP which includes local elected officials and landowner representatives.
16. The most appropriate funding of a broad program such as that proposed for East Contra
Costa County would be a public bond measure for the acquisition of open space of which
the HCP could be a part.
17. Any HCP should provide full recognition and credit for past and future public and private
habitat and open space acquisition and other mitigation efforts.
18. There should be Federal participation in the funding since it is the provision of Federal
monies for infrastructure which allows USFWS to impose this requirement on local
public projects. In effect,this becomes an additional project cost.
,Recommence
The Contra Costa Council recommends that the jurisdictions of Contra Costa County participate
in the East Contra Costa County Regional Habitat Conservation flan if the above 18 principles
are included in the Participation Agreement.
4/21100
Ov Z2
0j�1,310/2000 16:19 9259473603 SAVE MT DIABLO PAGE 01
S a V �
Attn.. John Kopchik
SAID Headquarters Board of Supervisors
1196 Boulevard Way Centra Costa County
Suite to 651 Pirie Street
Walnut Creek,{;A 94595
4th Floor, forth 'Wing
SMD Mailing.Address Martinez, CA 94553-0095
P.O.Brix 5376
Walnut Creek,CA 94596 May 30,2000
Telephone;
(925)947-3535 Members, board of Supervisors.-
Fax;
(925)947-3603
email, Save Mount Diablo and Greenbelt Alliance jointly support preparation of an
savemtdiabOaol,rom East County Habitat Conservation flan ("HCP" or "Plan"), and creation of a
President development mitigation fund for land acquisition and preservation, in order
Malcolm Sproul to preserve endangered species and their habitat on a regional basis.
Vice President,hounder
Art Bonwell
Secretary 'There is great value in supporting a regional mitigation scenario, with, buy-in
Amara Koss,LD. by various stakeholders, to ensure that the federal and state Endangered
Nigel Og lie,CFA Species Acts are uniformly enforced while also providing a funding stream for
preservation of endangered species habitat.
F,xectadve Board
Mary L,Bowerman,Ph.D.
FounderWhile developer and infrastructural improvement fees should fund the
Marty 8rcen majority of this mitigation, there are also public funds specifically earmarked
Paul Chorsser for .federal Habitat Conservation flans and for state Natural Community
Don de Fremery,Ph,D,
Karen Hunt,CPA Conservation flans. Without such plans in our area, we cannot compete for
Stephenak'seph these funds.
Bob Marx
Steven Mehtman,LD,
Bots Nunn While creation of HCPs and NCCPs can provide permit streamlining for
Alyn Prager projects, they do not substitute or negate requirements for CEQA review of
Dave Sargent and public involvement in individual project approvals. It is important that
Executive Director good regional land use planning and careful environmental analysis be
GcrTy Keenan continued.
We urge. the Board of Supervisors and Plan proponents to adhere to the
following general principles during Plan preparation.
Envitoninental Pri
1) The Habitat Conservation Flan should rely on avoidance as the primary
means for addressing irreplaceable resources such as creeks, wetlands and
endangered native plant communities.
/V
05/30/2000 16:19 9259473603 SAVE MT DIABLO PAGE 02
2) Flan Preparation should be based on the best currently available biological information.
During the early stages of the design of the Plan a scientific advisory committee should be
created and there should be independent peer review by scientists specializing in
conservation biology.
3) ,All mitigation must take place locally, within Contra Costa County and within the Plan
boundaries and should be guided by goad conservation biology. in addition, preservation
projects along either side of the Urban Limit Line and ones adjacent to or in close
proximity to existing publicly managed lands should be given higher priority, ars should
those projects which would aid in the creation of wildlife corridors between existing public
lands.
4) Existing public lands should not be considered for future species mitigation, since many
of these areas were acquired for other purposes, Certainly such areas can be considered for
limited species enhancement projects, but the focus should be on preservation of habitat
not already protected or publicly managed. In other words, mitigation should result in
expansions and enhancements of preserved habitat rather than restrictions on use of
existing public lands.
5) Fees tied to development or infrastructural improvement (such as water rate
incremental funding) should be the major source of mitigation funding, although public
funds specifically dedicated to HCI'/NCCP projects can be added to the mix.
6) Mitigation fee schedules should include escalation clauses over the life of the flan, to
match pace with land values, should be tied in part to specific impacts, and should be
limed with acreage/species preservation benchmarks to insure that mitigation efforts and
ratios do not fail behind proposed impacts.
7) Private property owners should not be subjected to mitigation costs unless development
or infrastructural improvement is proposed.
S) The process far preparation, implementation and oversight of a Plan should include
representation and involvement by tonal environmental organizations.
Creation of an HCP is an important tool, but it doesn't substitute for good regional land use
planning and careful environmental analysis. We support preparation of a Pian and
would like to be included in its development.
Sincerely,
Seth Adams Evelyn Stivers
Director of Land programs East Bay field Representative
Save Mount Diablo Greenbelt Alliance
141,
Oel
Contra CoSta County
CITIZENS LAND ALLIANCE
Dost Office Box 563+Byron,CA 94514.(925)834-6004•
t'scKtdrnt l°mnk Pareira*Vice President Mika Prikr'lich*!lacMAry,tantelA G'emrder*Treasurev fiflchadGTncor
Directors Alike Ambrafna,Tani Branrlrie,Tfrre 8sredld ill,Bab C'hnpntnn,610re Ctngnllli,
Bob Pal Pert*,Bngana llnrrisary Bob Pogenkerp,NO sclaltfm Tany$atrcn
March 1,2000
RE
, RA COSTA
,ONSERYATION PLAN I LWT
To the Honorable Board of Supervisors,
This letter is meant to clarify and augment Contra Costa County Citizens
Land Alliance comments made at the January 2Sti', 2000 Board of Supervisors
meeting.
As you know, Contra Costa County Citizens Land Alliance is it grass-roots
property-rights group,and we have been around for about 13 years now.
Our membership consists largely of property owners whose land is
constantly the subject of some open space or preservation plan. We have to be
constantly on the alert as to how these proposals could affect our primary asset, the
same way that many people watch for financial indicators related to their stocks,
bands,and bank accounts.
There are some big differences tIzough. One difference is that one never
hears a proposal to preserve open space or endangered species by taxing people's
bank accounts or retirement accounts. Can the other hand,we see constant barrages
on our land values in the form of unfunded open space proposals and studies,
Another difference is that-if our asset in danger of losing value,we have more
to consider than `'buy low-sell high". We have issues like tradition, multi-
generational ownership, love for the land and what we do, and our belief in the
principles upon which this great country was founded.
11CP IN NIRA 7N March 1, 2000
Contra Costa County Citizens fund Alliance fine always said,"If you want It,
buy it". We stand ready to participate In any process that will ensure fair treatment
of our members for their good care of the land.
On the outer ,hand, Contra Costa Citizens Land Alliance Is categorically
against anything that would loch In, permanent uses before conservation easements
are solid, that would artillcially limit the areal estate market, or that would allow for
or encourage the wholesale purchase of huge tracts of land by the government.
In addition, we believe that If an HCl' does come about, then the faint
Powers Authority should be the read agency, The County should ultimately be n
part of the process, as the County General Plan might need modification as a result.
There should be a separation of authority between an HCl? and the General flan,
but they obviously would need to be consistent with each other.
This kt+CP proposal seems to be driven by requirements placed on Contra
Costa Water DistrIC4 rather than coming from private landowners and developers
looking for a better way to steal with the Endangered Species Act. We still hold out
trope for a revised Endangered Species Act, In the meantime, we will continue to
Meal with It, and add our Input to an HCI'process IF It goes forward.
We are, however very concerned: about the prospect of another layer of
bureaucratic red tape. We feel that the time and resources that would be necessary
for this proposed ef'f'ort would be better directed toward more pressing Issues.
Thank you for your time and attention,
4��WA 16
gr
FRANK PEREIRA,JPXESt.UFNT
CONM COSTA COUNTY
CITIZENS UNA ALLIANCE
2
East Contra Costa County Habitat Conservation Plan Association (HCPA)
Agreement for the Preparation of a Habitat Conservation Plan/Natural
Communities Conservation Plan and Providing for Public Agency Cost Sharing
This Agreement is entered into this day of _ , 2000 by and among the Cities of
Antioch,Brentwood, Clayton, and Pittsburg, Contra Costa County,the Contra Costa Water
District, and the East Bay Regional Park District. These seven agencies are collectively
referred to as the"member agencies."
PURPOSE:
The purpose of this Agreement is to establish the East Contra Costa County Habitat
Conservation Plan Association("HCPA"), pursuant to the Joint Exercise of Powers Law,
Government Code sections 6500 through 6599.1 ("the Law"), to manage and fund the
development of a Habitat Conservation Plan(HCP),Natural Communities Conservation Plan
(NCCP),and/or similar plan for protecting natural resources and securing regulatory permits
in East Contra.Costa County. A separate agreement shall be necessary to describe the terms
for implementing any plan developed by the HCPA and approved by member agencies.
SUMMARY OF ACRONYMS AND ABBREVIATIONS:
Acronyms and abbreviations used in this Agreement are defined in the text when first used.
For clarity, a list of acronyms and explanations is also provided below.
CDFG: California Department of Fish and Game
CEQA: California Environmental Quality Act
CESA: California Endangered Species Act
EGC: Executive Governing Committee (committee of elected officials which
oversees the HCPA)
FESA: Federal Endangered Species Act
HCP: Habitat Conservation Plan(relates to FESA)
HCPA: East Contra Costa County Habitat Conservation Plan Association
NCCP: Natural Communities Conservation Plan(relates to CESA)
NEPA: National Environmental Policy Act
RWQC,B: California Regional Water Quality Control Board
USACE: United States Army Corps of Engineers
USEPA: United States Environmental Protection Agency
USFWS: United States Fish and Wildlife Service
Law: Government Code§6500-6599.1, unless otherwise specified
RECITALS:
A. The member cities and County are managing growth within their jurisdictions
according to their respective General Plans and policies, and by this agreement wish
to cooperate in the development of an HCP/NCCP and/or similar Plan for protecting
1
, -4-, /1 lei
natural resources and securing regulatory permits in East Contra Costa County.
B. Some future growth and some infrastructure maintenance activities within the
jurisdictions and potential future annexation areas of member agencies may have the
potential to adversely affect endangered species and their habitat, and could result in
unauthorized harm or"take" of endangered species which is prohibited under the
California Endangered Species Act (CESA) [Fish and Game Code §2050 et seq.;
"take"is defined in Fish and Game Code section 86] and Federal Endangered Species
Acts(FESA) [16 U.S.C.§1531 et seq.;"take"is defined in section 3(19) [16 U.S.C.
§1532(19)] of FESA].
C. The California and Federal Endangered Species Acts provide mechanisms to allow
for the lawful "take"of endangered species under specified circumstances when it
is incidental to otherwise lawful activities. The mechanism for receiving an
incidental take permit under section 10 of the Federal Endangered Species Act is
known as a Habitat Conservation Plan(HCP). An equivalent mechanism under state
law for non-agricultural activities is a Natural Communities Conservation Plan
(NCCP)which may be prepared pursuant to the Natural Communities Conservation
Planning Act [Fish and Game Code§2800 et seq.]. However, it is also possible to
receive an incidental take permit under CESA without preparing an NCCP by
submitting an application for a regional permit under the provisions of section 2081
of CESA,though the planning requirements of the two approaches are likely to be
very similar[Fish and Game Code§2081 et seq.]. HCPs for upland species and most
fish are submitted to the United States Fish and Wildlife Service (USFWS) for
approval and incidental take permit issuance under FESA. NCCPs and section 2081
permit applications are submitted to the California Department of Fish and Game
(CDFG) for approval. HCPs and NCCPs are implemented via an Implementation
Agreement describing how funds will be managed and spent and which entity or
entities will be responsible for implementing various aspects of the HCP/NCCP.
D. Cities, counties, and other local government agencies may, with the approval of
regulatory agencies with jurisdiction, develop a regional HCP/NCCP to provide an
incidental take permit for multiple species over a relatively large area. Such plans
typically extend permit coverage to individual projects in exchange for a defined
mitigation fee or some other conservation action. Mitigation fee funds are pooled
and used to protect habitat.
E. Regional HCPs/NCCPs and other similar natural resource protection and permitting
plans allow local jurisdictions to identify significant resource issues in advance,
streamline permitting for projects, improve interagency coordination, and provide
regulatory certainty and predictability in planning for future urban growth and
development.
F. Regional HCPs/NCCPs make possible improved protection of biological resources
by incorporating regional-level analysis and mitigation to protect ecological
processes, an approach to conservation which may be more effective than the more
2
common practice of separately addressing single species in small areas. Mitigation
actions maybe coordinated to achieve multiple objectives, such as: improving habitat
connectivity; providing the local community with valuable open space; protecting
important agricultural resources; and maximizing the use of limited funds.
G. Other environmental regulations and regulatory agencies may be included in the
regional conservation planning process to receive additional regional permits.
Regulations related to wetlands impacts are among those which can be addressed
concurrently with endangered species concerns. Agencies involved in regulating
wetlands in the East Contra Costa County area include,USFWS, CDFG,the United
States Army Corps of Engineers (USACE), the United States Environmental
Protection Agency(USEPA),the California Regional Water Quality Control Board
(RWQCB), and the Bay Conservation and Development Commission(BCDC).
H. The Contra Costa Water District will be prevented from using its full contractual
allotment of federal water from the Sacramento-San Joaquin Delta unless it can
address service area impacts to upland endangered species by means such as a
HCP/NCCP.
1. The East Bay Regional Park District owns substantial areas of open space and habitat
in the East Contra Costa County area and has an interest in coordinated planning for
open space,parks, and wildlife habitat.
J. The State Route 4 Bypass Authority is required to mitigate impacts to endangered
species associated with construction of its Segment 2, Phase 1 Project, as well as
subsequent segments and phases of the Bypass. USAGE, in consultation with
USFWS, has issued a permit which requires the Bypass Authority to provide hands
to support the preparation of an HCP/NCCP for east Contra Costa County. The
Bypass Authority receives the major part of its funding from the East Contra Costa
Regional Fee and Financing Authority. East Contra Costa Regional Fee and
Financing Authority funds are generated by developer fees in the cities of Antioch,
Brentwood, Oakley, and Pittsburg and in unincorporated areas of eastern Contra
Costa County.
K. The member agencies acknowledge that the recently incorporated City of Oakley,
once it has an opportunity to consider this matter, may have an interest in
participating in the development of an HCP/NCCP. In general,the member agencies
anticipate no objection to including the City of Oakley in the HCPA,'should such
inclusion be proposed.
AGREEMENT
NOW, THEREFORE, the member agencies agree to the following terms and provisions:
1. Recitals. The recitals contained herein are an integral part of this Agreement.
3
2. Association Farmed. The member agencies hereby form the East Contra Costa
County Habitat Conservation Plan Association(HCPA). As provided in the Law,the
HCPA shall be a public entity separate from the member agencies. The debts,
liabilities and obligations of the HCPA shall not constitute debts, liabilities or
obligations of the member agencies except as specifically provided herein.
Pursuant to section 6509 of the Law,the powers of the HCPA under this Agreement
shall be exercised in the manner provided by law and, except as expressly set forth
in this Agreement, shall be subject to the restrictions on such powers applicable to
the County of Contra Costa. Notwithstanding the foregoing,the HCPA shall have
any additional powers conferred under the Law, insofar as such additional powers
may be necessary to accomplish the purposes set forth in paragraph 3 hereof, and
shall continue to exercise the powers herein conferred upon it until the termination
of this Agreement.
Within 30 days after the effective date of this Agreement or any amendment hereto,
the HCPA will cause a notice of this Agreement to be prepared and filed with the
office of the Secretary of State of the State of California as required in section 6503.5
of the Law.
3. HCPA Objective. The objective of the HCPA is to manage and fund the
development of a Habitat Conservation Plan (HCP)/Natural Communities
Conservation Plan (NCCP) for submission to the governing boards of member
agencies and ultimately to the U.S. Fish and Wildlife Service (USFWS) and the
California Department of Fish and(lame(CDFG). Once approved by the USFWS
and the CDFG,the HCP/NCCP will establish a funding mechanism to preserve and
enhance native habitats which support endangered and sensitive species,while also
providing local land use planning agencies with a regional incidental take permit
under the Federal Endangered Species Act(FESA) and the California Endangered
Species Act (CESA). The HCPA will also consider including additional
environmental regulations in the planning process to enable streamlined permitting
and review not only for endangered species regulations,but possibly also for various
wetlands regulations, the California Environmental Quality Act, and other laws
related to natural resource protection.
4. Planning Area. The HCPA planning area will generally include the area of east
Contra Costa County shown on Exhibit A. This shall be the jurisdiction of the
HCPA for purposes of its Conflict of Interest Code. The boundaries of the planning
area are generally defined by the Alameda-Contra Costa county line, the western
edges of the watersheds for Kellogg, Marsh,Kirker, and other east-flowing creeks,
Suisun Bay,the San Joaquin River, and the course of the most western Delta sloughs
between Oakley and the Alameda-Contra Costa County line near Clifton Court
Forebay . The planning area boundary lies west of the Marsh Creep and Kirker
Creels watersheds in the vicinity of the City of Clayton, following a section line to
include the eastern portions of that city. The planning area boundary also departs
very slightly from the watershed line in the vicinity of the Concord Naval Weapons
4
station to avoid small areas of the City of Concord,which lie on the east side of the
ridge. The approximate size of the HCPA planning area is 185,000 acres.
The HCPA shall consider expanding the HCPA planning area in the future to include
all or portions of the sphere of influence of the City of Clayton, should during
development of the HCP/NCCP the City of Clayton make such request of the HCPA.
The HCPA shall also consider developing the HCP/NCCP to accept mitigation fee
funds from areas outside of the HCPA Planning Area and not covered by the permits
to be issued in conjunction with the HCPNCCP.
Should any member agency with land use planning authority withdraw from
participation in the HCPA,the planning area boundary shall be modified to exclude
areas over which the withdrawing agency has exclusive land use planning authority.
Areas subject to cooperative land use planning by more than one agency, such as
areas outside a city limits but within a city sphere of influence, shall remain within
the HCPA planning area unless all agencies with land use planning jurisdiction in
that area withdraw from the HCPA.
Development of an HCP/NCCP can be greatly simplified if habitats which border
channels of the Sacramento-San Joaquin Delta (Delta) are not included in the
permitting process. Permitting for impacts to such shoreline habitats would require
consideration of the complicated endangered species and habitat issues in the Delta.
Member agencies therefore anticipate excluding Delta habitats from the permitting
process.
5. Decision-making. An Executive Governing Committee(EGC)comprised of elected
representatives from each member agency shall provide oversight of and direction
to the HCPA. Each member agency will have one elected representative and one
elected alternate from their governing board or council on the EGC. The EGC will
elect a Chair and Vice-Chair. All decisions will be made according to the voting
procedures set forth in paragraph 6, except as otherwise specified in this paragraph
or in paragraphs 15, 18,or 20. The EGC may act directly or through a subcommittee
established by a majority vote. The meetings of the EGC shall be open to the public,
noticed,and conducted in accordance with the Brown Act,Government Code section
54950 et seq. The EGC shall appoint a secretary,who shall cause a written record
of all meetings to be kept and shall, as soon as possible after each meeting, cause a
copy of the written record to be forwarded to each member agency for distribution
to its representatives.
Staff representatives from each member agency shall coordinate and manage the
HCPA planning process under the direction of the EGC. The Contra Costa County
Community Development Department shall take the lead role in this regard and shall
serve as the Coordinating Agency for the HCPA. The EGC shall receive advice on
the planning process from one or more advisory committees formed under a Public
Outreach and Involvement Program.
5
d d ;
6. Voting Procedures. When necessary, a vote shall be taken according to the
provisions of this paragraph. A majority of the voting member-representatives on the
EGC shall constitute a quorum for the transaction of business, except that less than
a quorum may adjourn meetings from time to time. A majority vote of quorum of
voting member-representatives on the EGC is required to render a decision when
votes are taken. All voting shall be conducted in public, except where otherwise
authorized by law. All other voting procedures may be formulated in the
Administrative Procedures adopted by the EGC (see subparagraph 7k).
The member agencies' representatives on the ECG with land use planning authority,
i.e., the Cities of Antioch, Brentwood, Clayton, and Pittsburg and Contra Costa
County, shall have decision-making authority and one vote each on all matters to be
resolved by the HCFA. The Contra Costa Water District shall have decision-making
authority and its elected representative shall have one vote on administrative matters,
but shall not have decision-making authority or a vote on land use policy matters.
Administrative matters on which the Contra Costa Water District may vote include,
but are not limited to,the selection of consultants, the expenditure of HCFA funds,
the management of HCFA liability, and the management of the Public Outreach and
Involvement Process described in paragraph 11. The Contra Costa Water District
may also vote on matters directly related to its operations, authority, and legal
responsibilities, including matters that could impact its Central Valley Project
contract. band use policy matters on which the Contra Costa Water District may not
vote include, but are not limited to, the designation of impact fees, mitigation
measures, habitat acquisition areas, and permit coverage areas. Should a dispute
arise as to whether the Contra Costa Water District may vote on a matter before the
HCPA, the EGC members representing agencies with land use planning authority
shall resolve the dispute by a vote, a simple majority being necessary to prevent a
vote by the Contra Costa Water District. The East Bay Regional Park District shall
be able to provide input on all decisions,but shall have no decision-making authority
or voting ability. The State Route 4 Bypass Authority shall have no decision-making
role in the HCPA.
The member agencies acknowledge that the recently incorporated City of Oakley,
once it has an opportunity to consider this matter, may have an interest in
participating in the development of an HCP/NCCP. In general,the member agencies
anticipate no objection to including the City of Oakley in the HCPA, should such
inclusion be proposed. If the City of Oakley were to join the HCPA, member
agencies anticipate that it would have decision-making and voting ability equivalent
to that of the other land use planning agencies.
7. Duties of the Executive Governing Committee. The duties of the EGC shall include
the following:
a) The EGC shall govern and operate the HCPA.
b) The EGC shall provide policy direction in the preparation of the East Contra
Costa County HCP/NCCP and related documents.
c) The EGC shall approve a budget for developing the HCP/NCCP submitted
6
4o
by member agency staff, and shall ratify all checks, warrants, and related
documents used in the expenditure of HCFA funds since the previous
meeting.
d) The EGC shall approve the retention of agents and consultants,and execution
of any agreements and contracts with regulatory agencies and other outside
parties necessary to develop the HCP/NCCP.
e) The ECIC shall oversee compliance with the California Environmental
Quality Act(CEQA), the National Environmental Policy Act (NEPA), and
other laws applicable to the development of an HCP/NCCP. EGC oversight
of compliance with CEQA shall include oversight of the HCPA as the lead
agency under CEQA for the development of the HCP/NCCP.
f) The EGC shall consider approval of the HCP/NCCP, the Implementation
Agreement for the completed HCP/NCCP,and related documents before such
documents are submitted to the individual member agencies with land use
planning authority for final approval.
g) In the event that one or more individual land use planning agencies does not
approve the final HCP,the EGC shall determine whether to modify the HCP
and make a second attempt at approval by all land use planning agencies, or
to modify the HCP so that it applies only to the land use planning agencies
which approved it originally.
h) The EGC shall adopt a conflict of interest code for the HCPA.
i) The EGC shall perform other decision-making functions for the HCPA as
provided by this Agreement or as are necessary for developing an
HCP/NCCP.
j) The EGC shall meet approximately every three months.
k) The EGC may adopt bylaws, rules for conduct of the meetings, and other
administrative procedures as needed. The administrative procedures of a
member agency may be adopted for the HCPA by the EGC.
1) The EGC shall manage any claims and litigation brought against the HCPA
or its member agencies.
8. Coordinating Agency. The Contra Costa County Community Development
Department shall serve as the Coordinating Agency for the HCPA. The Coordinating
Agency shall assist the ECC and the other member agency staff by supervising and
coordinating the daily operations of the HCPA. The HCPA shall reimburse
reasonable costs incurred by the Contra Costa County Community Development
Department in serving as the Coordinating Agency, including costs associated with
the services of other Contra Costa County departments and other outside agents that
assist the Contra Costa County Community Development as it performs these duties.
The Contra Costa County Community Development Department shall not request nor
receive reimbursement for other costs associated with participation in the HCPA,
such as costs to represent the interests of Contra Costa County at meetings. Specific
duties of the Coordinating Agency shall include:
a) Noticing meetings;
b) Preparing or supervising the preparation of meeting materials;
C) Serving as a point of contact for the public;
7
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d) Serving as a point of contact for federal, state, and regional regulatory
agencies and coordinating interaction with these agencies;
e) Supervising the daily operations of consultants;
f) Approving consultant invoices for payment within 60 days after receipt of a
complete invoice and forwarding such invoices to the EGC for subsequent
ratification;
g) Coordinating the implementation of the Public Outreach and Involvement
Program•,
h) Submitting itemized invoices to member agency staff`documenting the costs
incurred in performing the duties of Coordinating Agency.
9. Duties of member agency staff. Staff representatives of member agencies,with staff
of the Coordinating Agency taking the lead role, shall have primary administrative
responsibility for the implementation of this Agreement. Specific duties of member
agency staff shall include the following:
a) Serve as the staff of the EGC except as provided otherwise in this Agreement;
b) Negotiate a Memorandum of Agreement with the federal and State resource
agencies responsible for endangered species regulation for final approval by
the ECC;
c) Prepare a Request for Proposals for preparation of the HCP/NCCP and any
other related documents for final approval by the EGC, solicit proposals,
review proposals,recommend a consultant and negotiate an agreement with
the selected consultant for final approval by the EGC;
d) Prepare and update a budget for developing the HCP/NCCP and any other
related documents for approval by the EGC,manage the consultant contract,
monitor progress towards the HCPA objective and compliance with any
deadlines, apply for and receive grants as authorized by the EGC, review
invoices submitted by the Coordinating Agency and the Treasurer and
Controller and recommend EGC ratification of such invoices to assure
payment within 60 days after receipt of a complete invoice,provide direction
to consultants, and present the draft HCP/NCCP document to the EGC for
initiation of the approval process.
e) Develop and implement a public outreach and involvement program with
oversight from the:EGC and nominate participants in any standing advisory
committees for approval by the EGC.
f) Develop the Implementation Agreement for the completed HCP/NCCP for
approval by the EGC.
g) Provide periodic updates on the development of the HCP/NCCP to the
governing boards and councils of member agencies, as directed by the EGC.
h) Prepare a proposed Conflict of Interest Code for adoption by the EGC.
10. HCPA Treasurer and Controller. The Director of the Contra Costa County
Community Development Department shall serve as the Treasurer and Controller for
the HCPA and, as such,shall have the powers, duties, and responsibilities specified
in section 6505.5 of the Law. The HCPA Treasurer and Controller shall appoint such
other officers and employees as it may deem necessary to perform said powers,
8
duties, and responsibilities, subject to the approval of the EGC based on a '
recommendation by the member agency staff, and may retain independent counsel,
consultants and accountants. Each public officer or person who has charge of,
handles,or has access to any property of the HCPA, shall file an official bond in the
amount of$25,000 as required by section 6505.1 of the Law;provided that such bond
shall not be required if the HCPA does not possess or own property or funds with an
aggregate value of greater than$500.00. The HCPA Treasurer and Controller shall
be the depository of and have custody of all funds collected under this Agreement.
The HCPA Treasurer and Controller shall deposit all funds collected under this
Agreement with the Treasurer of Contra Costa County. The HCPA shall reimburse
administrative costs incurred by the Contra Costa County Community Development
Department in serving as the HCFA Treasurer and Controller, including costs
associated with the services of other Contra Costa County departments,including the
County Auditor, and other outside agents that assist the Contra Costa County
Community Development as it performs these duties. The HCPA Treasurer and
Controller, with the assistance of the County Auditor and Treasurer, as deemed
necessary by the HCPA Treasurer and Controller, shall:
a) Receive contributions from members agencies,and grants,contributions, and
donations of property,funds,services and other forms of assistance from any
source, and provide receipts in exchange therefor,and be responsible for the
safekeeping and proper disbursement thereof.
b) Establish and maintain such funds and accounts as may be required by good
accounting practices, and provide a report in writing on a quarterly basis to
the EGC, and the member agencies,which report shall describe the amount
of money held by the Treasurer and Controller,the amount of receipts since
the last such report, and the amount paid out since the last such report;
c) Provide strict accountability of all funds received and disbursed by the
HCPA, as required by Government Code section 6505, and keep the books
and records of the HCFA open to inspection at all reasonable times by
member agencies and their representatives;
d) Pay,by check signed by not less than two individuals with signatory authority
approved by the EGC, all obligations of the HCPA when due and as
recommended for payment by member agency staff,including the costs of the
audit required by subparagraph f, including retention or employment of
certified public accountants or public accountants;
e) Invest,pursuant to section 6505.5 of the Law, any money that is not required
for the immediate necessities of the HCPA, in any instrument, declared by
state law,including but not limited to Goverm-hent Code section 53601,to be
permissible as an investment for any local public agency in the State of
California, and as the Treasurer and Controller determines is advisable in
accordance with established policies and procedures, or deposited in such
bank or banks as the EGC may designate for that purpose,with all interest to
be credited in proportion to the contributions described in paragraph 14;
f) Make, or if required by section 6505.6 of the Law, contract with a certified
public accountant or public accountant to make, an annual audit of the
9
accounts and records of the HCFA as required by section 6505 of the Law
every year during the term of this Agreement,which audit shall be conducted
in accordance with generally accepted auditing standards and with the
minimum requirements prescribed by the State Controller for special districts
under Government Code section 26909 of the State of California, and, if
required by sections 6505.6 of the Law,provide a report on said audit to the
member agencies, which shall be filed as public records with each of the
member agencies,including the County Auditor/Controller of the County of
Contra Costa within 12 months of the end of the fiscal year or years under
examination. Unless and until changed by the EGC, the fiscal year of the
HCPA shall be the period from July 1 each year to and including the
following June 30, except for the first fiscal year which shall begin on the
date this Agreement becomes effective and continue through the following
June 30.
g) Submit itemized invoices to member agency staff documenting the costs
incurred in performing the duties of HCPA Treasurer and Controller.
11. Public Outreach and Involvement Program. The HCPA shall conduct a Public
Outreach and Involvement Program to provide a structured process for disseminating
information and collecting input on the development of the HCP/NCCP. The Public
Outreach and Involvement Program shall include public workshops/hearings and one
or more standing advisory committees with clearly defined membership and
operating procedures. Member agency staff shall propose members of the advisory
committees and the EGC shall approve members and operating procedures. The
advisory committees to be formed by the HCPA may include a Policy Advisory
Croup, a Technical Advisory Group, and a Financial Advisory Group. Advisory
groups formed by the HCFA shall provide recommendations to the EGC and to
member agency staff on topics related to development of the HCP/NCCP. Member
agency staff and the Coordinating Agency shall support and manage the advisory
group process to assure that it is effective,responsive, and efficient.
12. Anticipated Schedule.The HCPA will comply with the following schedule(as it may
be revised in writing by member agencies)to develop the HCP/NCCP:
Fall 2000 Hire consultant and initiate Public Outreach and Involvement
Program.
Spring 2001 Prepare the Administrative Draft HCP/NCCP.
Fall 2001 Circulate the Draft HCP/NCCP and Draft CEQA documents.
Winter 2001 Land use planning agencies consider adopting Final HCP/NCCP,
approving the Implementation Agreement,and completing the CEQA
process.
Fall 2002 Regulatory agencies approve final HCP/NCCP and Implementation
Agreement, complete National Environmental Policy Act (NEPA)
process, and issue regional incidental take permit and/or other
regional permits.
10
Y - r ;'
13.
Cost to Prepare the HCP/NCCP. The estimated cost to prepare the East Contra Costa
-
County HCPINCCP is$650,000. This estimated cost, and an additional ten percent
reserve fund of$65,000 for contingencies, shall be divided among the member
agencies and other funding sources according to the cost allocations set forth in
paragraph 14 of this Agreement. The cost estimate includes the anticipated costs for
consultants, for the Coordinating Agency and the Treasurer and Controller, and for
compliance with CEQA and NEPA. The costs of including wetlands permitting in
the planning process will need to be determined by the HCFA and considered if and
when the HCPA approves such work. To the extent that planning for wetlands
permits can be compatible with planning for endangered species,including wetlands
permits should have a minor cost. Except for the anticipated costs of the
Coordinating Agency and the Treasurer and Controller, as defined under paragraphs
8 and 10 of this Agreement, the cost estimate provided in this paragraph does not
include the member agency staff time that will be necessary to attend meetings and
otherwise assist with the development of the HCP/NCCP. Such staff costs shall be
considered in-kind contributions and not funded through this Agreement.
14. Allocation of Costs. The chart below shows how the estimated costs to develop the
HCPfNCCP will be allocated, lists the funding contributions required of member
agencies and expected from other sources, and identifies the amount of additional
funds needed. In addition to the estimated project cost of$650,000,the HCPA shall
also secure funding for a ten percent contingency reserve of$65,000. CCWD shall
contribute one-half or $32,500 of the contingency reserve, in addition to its
contributions described in the chart below.
Funding Source Funding Amount Percentage
of Estimated Project
Cost
City of Clayton $10,000 1.5%
CCWD $325,000 50%
State Route 4 Bypass $100,000 15.4%
Authority*
Committed Project Funds $435,000 67%
Additional Project Funds Needed $215,000 33%
From Other Sources
Estimated Project Cost $650,000 100%
* The funding contribution of the State Route 4 Bypass Authority shall be made on behalf of the Cities
of Antioch,Brentwood,and Pittsburg and Contra Costa County.
1t
15. Payment of Costs_. Contributing member agencies shall deposit the amount specified
in the preceding paragraph with the HCFA, Treasurer and Controller. One-half of
each member agency's deposit is due upon its execution of this Agreement. The
remaining one-half of the deposit will be due on July 1,2001. Contributions to the
contingency reserve shall be due from CCWD upon notice from the Treasurer and
Controller that project funds are depleted and HCFA costs remain. The funding
contributions of the State Route 4 Bypass Authority shall be provided on behalf of
Contra Costa County and the Cities of Antioch, Brentwood, and Pittsburg. The
amount of funding being paid by the State Route 4 Bypass Authority shall not change
if one or more agencies on whose behalf the funds are contributed withdraws from
the HCPA. Should the City of Oakley join the HCPA,member agencies anticipate
that no additional funding contribution would be required as a portion of the funds
already committed to HCPA by the State Route 4 Bypass Authority would be
considered as the contribution of the City of Oakley. Subject to the provisions of
paragraph 18,member agency funding contributions in excess of those described in
paragraph 14 shall require an amendment to this Agreement. Funds remaining after
termination of this Agreement shall be refunded in proportion to the amount
contributed by each member agency within six months of the termination date.
16. Outside Funding Sources. The HCPA intends to raise additional funds by seeking
grants and other contributions from public and private sources. The amount of
additional funds needed to pay the estimated project cost of$550,000 is $215,000,
but$32,500 more is needed to fund one-half of the contingency reserve. The HCPA
shall attempt to obtain additional funds in excess of this amount to provide a reserve
and potentially reduce member agency's costs. There are a number of potential
outside funding sources to support the development of the HCP/NCCP,including the
following primary examples:
a) Federal funds for conservation planning which are passed through to state
government and the CDFG for disbursement in accordance with section 6 of
FESA.
b) Conservation planning funds which may be appropriated by the California
Legislature to support development ofNCCPs.
C) Grant programs administered by USEPA, including the State, Local,Tribal
Wetlands Grant Program which supports planning for wetlands conservation.
d) Grants from the National Fish and Wildlife Foundation and many other
private organizations.
Outside funding sources may be pursued after local governments have reached
agreement to develop an HCPJNCCP, and perhaps after work on the project has
commenced. Including wetlands permitting in the planning process would expand
the range of available funding sources.
12
17. Strategy or addressing f aiding shortfalls. The ECC shall determine whether or not
to initiate development of the HCP/NCCP prior to the procurement of the outside
funds needed to pay the estimated project cost of$650,000. If the ECC does elect
to begin the planning process before all needed funds are raised, the ECC shall
develop a strategy for reducing the scope of the HCP/NCCP project in the event that
outside funds are not secured. The purpose of the contingency strategy will be to
define options for producing a useful product with less than the estimated full
funding. The HCPA shall not enter into binding agreements or contracts requiring
payment of funds in excess of HCPA assets at the time the agreement or contract is
being considered.
18. Liability,contribution, and indemnity.Under section 895.2 of the Government Code,
each of the member agencies are jointly and severally liable upon any liability which
is imposed upon the HCPA or upon any of the entities for injury caused by negligent
or wrongful act or omission occurring in the performance of this Agreement.
Pursuant to sections 895.4 and 895.6 of the Government Code, each member agency
(except the East Bay Regional Parr District and the City of Clayton which shall have
no liability, except for liability that arises from the gross willful misconduct of its
own Directors officers, employees and agents) agrees to bear one-fifth of such
liability. Each member agency except the East Bay Regional Park District and the
City of Clayton shall be entitled to receive contribution from and required to
contribute to the other member agencies to the extent described above. No member
agency shall be responsible for any liability in excess of the portions described above
except as follows: the Cities of Antioch,Brentwood, Clayton, and Pittsburg, Contra
Costa County, Contra Costa Water District, and the East Bay Regional Park District
shall defend,indemnify,save,and hold harmless the HCPA and every other member
agency against such liability to the extent that it arises from the gross willful
misconduct of its own Directors, officers, employees and agents. The cost of
defending against such liability, including reasonable attorneys fees, shall be
allocated in accordance with the cost allocations described in this paragraph.
19. Cooperation. All the member agencies agree that the execution of this Agreement
and their respective monetary contributions are an expression of intent to cooperate
in the preparation and completion of an HCPINCCP and each agrees not to
unreasonably withhold its consent to the implementation and accomplishment of the
overall purpose for which this Agreement is made. However,signing this Agreement
does not bind any agency to sign future related agreements including an agreement
to implement the HCPINCCP.
20. Termination. This Agreement shall terminate when the HCP/NCCP is approved by
the U.S.Fish and Wildlife Service,the California Department offish and Game, and
every other regulatory agency that needs to approve it, and all amounts owing under
this Agreement have been paid, including payment of refunds as described in
paragraph 15. Said paragraph 15, to that extent, and paragraphs 18, 24, 30 and 32
13
shall survive the termination of the Agreement. Before the HCP/NCCP is approved,
a separate Implementation Agreement shall describe the implementation of the
HCP/NCCP and any future cooperation among member agencies. Member agencies
may withdraw from participation by vote of their governing board or council and
upon 30 days written notice to other member agencies. Payments on deposit will
remain in the HCPA account,however no additional payments will be required of the
withdrawing agency, except for payments required under paragraph 18 and resulting
from liability incurred while the withdrawing agency was still party to this
Agreement. The withdrawing agency will be eligible for refunds only as specified
in paragraph 15 and upon regulatory approval of the HCP/NCCP and consequent
termination of this Agreement.
21. Amendment. This Agreement may be amended only by a written agreement approved
by a unanimous vote by the member agencies.
22. Effective Date. This Agreement shall become effective upon approval by all
contributing agencies, or on June 30, 2000, if at least four member agencies have
approved the Agreement,whichever is earlier.
23. Execution. This Agreement may be executed in several counterparts, each of which
shall constitute one and the same instrument and shall become binding on the parties
when at least one copy hereof shall have been signed by all parties hereto. In
approving this Agreement, it shall not be necessary to produce or account for more
than one such counterpart.
24. Dispute Resolution. The parties shall first submit any dispute concerning their
obligations or duties under this Agreement to mediation to be conducted by a
mutually acceptable professional mediator. In the event that the parties are unable
to resolve any such dispute in the mediation process, the parties may then proceed
with such remedies in law or equity that they may have. Each party shall bear its
own legal fees and costs throughout the process except as is otherwise specified in
paragraph 18.
25. Notices. Notices authorized or required to be given pursuant to this Agreement shall
be in writing and shall be mailed, faxed or delivered during regular business hours
to the addresses specified below adjacent to the signatures.
26. Headings. All headings contained herein are for convenience of references only and
are not intended to define or limit the scope of any provision of this Agreement.
27. Severance. Should any part,term or provision of this Agreement be determined by
the courts to be illegal or in conflict with any law of the State of California, or
otherwise be rendered unenforceable or ineffectual, the validity of the remaining
parts,terms or provisions hereof shall not be affected thereby.
14
28. No Third Party Benefits. It is not intended that any person or entity occupy the
position of intended third-party beneficiaries of the obligations assumed by any party
under this agreement.
29. Entire Agreement. This Agreement contains the entire understanding of the HCPA
and the member agencies relative to the subject matter of this Agreement and
supersedes all prior and contemporaneous understandings or agreements.
30. Waiver of Personal Liability. No Commissioner, Supervisor, Councilmernber,
Director, officer, employee, agent or consultant of any of the member agencies is
individually or personally liable for any claims, losses, damages, costs, injury, or
liability of any kind, nature and description arising from actions of any of the
member agencies under this agreement.
31. Successors and Assigns. This agreement is binding upon and inures to the benefit
of the successors to the member agencies. None of the member agencies may assign
any right or obligation hereunder without the express written consent of all of the
others.
32. California Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of California. The venue for any legal action pertaining to
this Agreement shall be Contra Costa County, California.
33.Representation by_Counsel. The member agencies hereto each acknowledge that they
have been represented in the negotiations for, and in the preparation of this
Agreement by counsel of their own choosing;that they have read this Agreement or
have had it read to them by their counsel; and that they are fully aware of and
understand its contents and its legal effect. Accordingly, this Agreement shall not
be construed against any party, and the usual rule of construction that an Agreement
is construed against the party which drafted it shall not apply.
34. Responsibility of ,Member Agencies for Staff Compensation. Participants in the
ECIC and the Public Outreach and Involvement Program, employees of member
agencies,including employees of the Contra Costa County Community Development
Department serving as the Treasurer, Controller, or Coordinating Agency for the
HCPA, shall not receive any compensation from the HCPA for serving as such,but
each shall be entitled to payment of salary earned, and reimbursement of any
expenses actually incurred, in connection with serving as such from his or her
respective employing member agency to the extent determined by such member
agency on whose behalf they are participating. All such amounts shall be paid by
such member agency, and the HCPA shall not be responsible for payment of such
salary and expenses, except as expressly set forth in this Agreement, and except for
payments described in paragraphs 8 and 10 to the Contra Costa County Community
15
Development Department to reimburse the salary and expenses of its employees in
their capacity as Coordinating Agency and Treasurer and Controller.
City of Antioch By:
P.O. Box 130 City Manager
Antioch, CA 94509
Fax (325) 779-7003
City of Brentwood By:
708 Third Street City Manager
Brentwood, CA 94513
Fax (925) 634-6930
City of Clayton By:
6000 Heritage Trail City Manager
Clayton, CA 94517
Fax(925) 672-4917
City of Pittsburg By:
P.O. Box 1518 City Manager
Pittsburg, CA 94565
Fax(925)439-0527
Contra Costa County By:
651 Pine Street County Administrator
No. Wing,4"'Floor
Martinez, CA 94553-1229
Fax (925) 335-1299
Contra Costa Water District By:
P.O. Box H2O General Manager
Concord, CA 94524-2099
Fax (925) 688-8303
East Bay Regional Park District By:
2950 Peralta Oaks Court General Manager
P.O. Box 5381
Oakland, CA 94605-0381
Fax (510) 569-1417
otnc/rlr/Jx
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Contra
Costa
TO: BOARD OF SUPERVISORS Court
FROM: DENNIS M. BARRY, AICD
COMMUNITY DEVELOPMENT DIRECTOR
DATE: January 25, 2000
SUBJECT: Report on Proposed East Contra Costa County Habitat Conservation Pian
SPECIFIC REQUEST(S) OR RECOMMENDATIONS) & BACKGROUND AND JUSTIFICATION
RECOMMENDATION
DECLARE the intent of the Beard relative to participating in the development of a Habitat
Conservation Plan for Eastern Contra Costa County, and, should the Board declare an
intention to participate, CONSIDER directing the Community Development Director and
County Counsel to finalize the Draft Joint Powers Agreement on this matter for subsequent
adoption.
FISCAL IMPACT
The Draft Dint Powers Agreement would impose no direct costs on the County. The costs
of preparing the Habitat Conservation Plan (HCP), including County staff costs to manage
the JPA and the HCP project, would be paid by other organizations and with grants.
However, by participating in the effort, the County would accept a portion of the JPA`s
liability. The County would also incur some indirect staff costs related to tasks other than
managing the JPA, such as representing County interests at meetings.
BACKGROUND/REASONS FOR RECOMMENDATIONS
On March 18, 1098, the U.S. Fish and Wildlife Service (USFWS) and the California
Department of Fish and Game (CDFG) sent a letter to the County and other local
government agencies urging that a regional Habitat Conservation Plan (HCP) be
CONTINUED ON ATTACHMENT: X YES SIGNATURE
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COM TTEE
APPROVE OTHER
SIGNATURE(S).-
ACTION
IGNATURE(S):ACTION OF BOARD ON nary �� 2cno APPRC?VED AS RECOMMENDED OTHER
SEE THE ATTACHED ADDENDUM FOR BOARD ACTION
AND VOTE
t
VOTtIOF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
_ UNANI US {ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE
ABSENT: ABSTAI . BOARD OF SUPERVISORS ON THE DATE
SHOWN.
Contact: John Ko p i 925) 335-1227 ATTESTED —.—Ja_ uary 252000
cc: Communit evelop ent Department (CDD) PHIL BATCHELOR, CLERK OF
County ministrator BOARD OF SUPERVISORS
Cou Counsel AND COUNTY ADMINISTRATOR
P is Works
gricultural Commissioner
S:\Conserv%John\hcpjan00.bo.doc B , DEPUTY
Report on Habitat Conservation Plan
January 25, 2000
Page 2
developed for Eastern Contra Costa County (attached). A regional HCP is a tool for
receiving endangered species permits and possibly other permits over a broad area by
establishing conservation measures, including a coordinated mechanism for purchasing
habitat as a means for mitigating impacts.
In October of 1998, the Board received a report from staff and heard a presentation from
representatives of USFWS and CDFG. At that time, staff was authorized to conduct
additional work on the proposal to frame a later decision by the Board on whether to
participate in the development of such a plan. A copy of the October 1998 Board action,
including the multi-agency staff report with background information on Habitat
Conservation Plans, is attached.
On December 7, 1999, staff reported to the Board again on this issue, providing a status
report on the exploratory work which had occurred over the past year. Staff presented a
draft agreement for the formation of Joint Powers Authority (JPA) which had been
cooperatively developed with staff from the Cities of Antioch, Brentwood, Clayton, and
Pittsburg, the Contra Costa Water District (CCWD), and the East Bay Regional Park
District (EBRPD). Staff also requested authorization to submit a grant application to the
U.S. Environmental Protection Agency. The Board accepted the staff report, authorized
the grant application, and scheduled a decision on participation in the HCP effort for
January 25, 2000. A copy of the December 7, 1999 Board action, including the draft JPA
Agreement, a draft map of the proposed HCP Planning Area, and chart summarizing key
features of other HCP efforts, is attached.
Staff submitted a grant application to the U.S. EPA State, Local, Tribal Wetlands grant
program on December 8, 1999, requesting $125,000 to support development of an HCP
in Eastern Contra Costa County. The U.S. EPA expects to publish its funding decisions
for this grant program in March 2000. If the grant application were successful and the
County elected not to participate in the HCP program, the funds could be returned or,
possibly, passed on to other government agencies that do choose to go forward with some
version of the project.
The purpose of this report is to frame a decision by the Board on declaring its intent relative
to developing an HCP for Eastern Contra Costa County. Background information on HCPs
and the Draft JPA Agreement are contained in the attached past reports to the Board. This
report does not repeat earlier content. However, a brief overview of key policy
considerations is provided below for additional context.
Discussion and Analysis: Please find below a summary of some policy considerations
relevant to a decision on County participation in developing a Habitat Conservation Plan
for Eastern Contra Costa County:
Regional Cooperation: Preparation of an HCP might be a potential vehicle for fostering
more cooperation and consistency between the County, cities, and special districts on
issues such as growth, land use, and environmental protection. Hope has also been
expressed that a cooperative arrangement on habitat issues could lead to broader
cooperation in other areas, such as regional planning, economic development, and
public finance. However, there is also some risk that the HCP process will not succeed
in bringing participating agencies closer together in areas of past disagreement,
complicating the ultimate utility of a completed plan.
Stakeholder Concern: HCPs tend to be controversial and may be opposed by a variety
of interests. Some conservation advocates are concerned that HCPs undermine the
Endangered Species Acts by providing permits for development of endangered species
habitat. Some landowners have opposed HCPs because they see such plans as
extensions of endangered species regulations and are concerned that habitat studies
and maps threaten their property rights. Some developers are concerned that HCPs
increase the cost of development. Of course, the arguments made by those concerned
Report on Habitat Conservation Plan
January 25, 2000
Page 3
are more complicated than the above summaries may imply. Likewise, the same
interests that sometimes oppose HCPs also sometimes support them. The point is,
building broad community support around an HCP can be challenging.
Permit Streamlining and Improved Environmental Protection: A main attraction of
preparing HCPs is the potential for streamlining environmental permitting while also
more effectively protecting resources. HCPs are intended to provide developers and
other permitees with a more certain, less time-consuming alternative to project-by-
project compliance with regulations. Plans are typically voluntary, meaning that
developers can participate in the HCP or choose the current permitting process. At the
same time, HCPs present potential environmental benefits such as a regional
perspective on conserving habitat and wildlife corridors. HCPs can also redirect money
away from the process of negotiating permits and mitigation and toward the direct
acquisition and management of land. However, an HCP must work as intended for
these benefits to be realized, and the track record for these plans is not long.
Growth Inducement: It is possible for HCPs to have growth-inducing impacts. By
defining a permit coverage area and by simplifying and accelerating the permitting
process, one could argue that HCPs have the potential to foster increased growth. If
the permit coverage area was very limited and the cost of mitigating through the HCP
was high, the plan could also have the opposite effect.
Infrastructure Needs: Regulatory agencies such as the U.S. Fish and Wildlife Service
have expressed the view that development of an HCP would speed the permitting
process for increased CCWD water diversions and East County transportation projects.
Slow and Difficult Planning Process: Some HCPs have taken as long as eight or more
years to complete. Since HCPs are no longer a novel policy initiative, the maximum
time spent to develop one should not be as long as it once was. However, depending
upon one's perspective on how much growth potential exists in East County, it could
be argued that developing a plan is not worth the effort if the process cannot be
completed quickly.
Attachments:
• December 1999 Board Order
• Draft HCP JPA Agreement
• October 1998 Board order and attached multi-agency Staff Report explaining the HCP
concept
• March 1998 letter from USFWS and CDFG urging development of an HCP in East
County
• Chart comparing features of other HCPs in Northern and Central California
S.\Conserv\John\hcpjan00.bo.doc
ADDENDUM TO ITEM D. 8
January 25, 2000 Agenda
On this date, the Board of Supervisors considered the report on the proposed East Contra Costa
County Habitat Conservation Plan(HCP), and the Draft Joint Powers Agreement(See the attached
Board Order).
John Kopchik, Community Development Department,presented the staff report and
recommendations. Dennis Barry,Director of the Community Development Department wap also
present.
The public hearing was opened;and the following people offered comments:
Gehn Farlow, 2525 Morgan Territory Road, Clayton;
Dennis McCormac, Contra Costa Water District,P.Q. Box H20,
Concord;
Ken Sanchez,Fish and Wildlife Service, 2$40 Cottage Way, #2605,
Sacramento;
Nick Papadakos,P.O. Box 96,Byron;
Frank Pereira, Citizen Land Alliance, 6044 Alhambra Valley Road,
Martinez;
Henry Alker, Southport Land Commercial Co., San Francisco;
Sam Stewart,P.O. Box 19, Clayton;
Seth Adams, Save Mount Diablo, 1196 Boulevard Way#10, Walnut Creek.
Those desiring to speak having been heard,the Board discussed the issues.
Supervisor Canciamilla stated that he remained unconvinced that the ultimate goal of this Plan
would be to protect habitat, and that it would not in effect create more opportunities for
development. He moved that the Board decline the request to participate in the Joint Powers
Agreement. The motion failed for lack of a second.
The Board continued their discussion, including questioning what effect the participation or non-
participation of concerned cities would have on this issue.
In response to a question from Supervisor DeSaulnier,Mr. Barry advised he was concerned that
this County is not like others where HCPs have been a valuable tool because of the density of
development and the amount of development on the books for approval. He stated that it was a
useful tool in the right circumstances and he is not convinced that this was the right circumstance
given the evidence that he has seen. He also expressed concern that since this was a voluntary
program, it was not certain what kind of participation could be anticipated in the process.
Both Supervisors Gerber and Gioia suggested that to go forward with the process with the area
stakeholders would give the County the opportunity to ascertain whether there was interest or
not, and then whether to recommend to go forward with the proposed HCP.
Supervisor Gioia stated that if this process did not go forward, it could not be certain that another
mechanism exists to move people along. The goals that are being sought through the HCP need
to occur, they are positive goals, and perhaps some property owners do not desire dialogue on
these issues where there is a need,this is the appropriate level for leadership to begin. He moved
that the Board declare its intent to participate in the development of an HCP for Eastern Contra
Costa County; and direct the appropriate County staff to bring this Plan to East County cities,
and report back to the Board on those discussions; to work with the stakeholders to understand
their concerns; and report back to the Board in four months; then the Board can make their final
determination about their participation.
Supervisor DeSaulnier seconded the motion.
Following further discussion, Supervisor DeSaulnier suggested amending the motion to include:
Within 90 days staff reports to the Board, and endeavors to get support from as many
1
jurisdictions as possible;that staff more fully identify the number of units that may be affected
by this Plan in both incorporated and unincorporated cities.
Supervisor Gioia agreed with Supervisor DeSaulnier's amendments. He suggested further
amending the motion to include that during the next 90 days, staff work with the various
stakeholders from the environmental perspective and the property owners to understand their
goals in this process.
Supervisor Gerber called for the vote, and the vote was as follows:
AYES: SUPERVISORS GIOIA,DeSAULNIER and GERBER
NOES: SUPERVISOR CANCIAMILLA
ABSENT: SUPERVISOR UILKEMA
ABSTAIN: NONE
The Board took the following action:
DECLARED the Board's INTENT to participate in the development of a Habitat Conservation
Plan(HCP) for Eastern Contra Costa County; DIRECTED that the Community Development
Department (CDD) staff consult with the affected cities and jurisdictions to identify support;
DIRECTED staff to estimate the number of units that may be affected by the Plan; and further
DIRECTED that staff bring a report on this matter back to the Board in 90 days for their
consideration,
2
,. C0ntro
' Costo
TO: BOARD OF SUPERVISORS County
FROM: DENNIS M. BARRY, AICP
COMMUNITY DEVELOPMENT DIRECTOR
DATE: December 7, 1 999
SUBJECT: Status Report on Proposed East Contra Costa County Habitat Conservation
Plan
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATIO
RECOMMENDATION
ACCEPT status report from the Community Development Director on a proposed East
Contra Costa County Habitat Conservation Plan ("HCP"). AUTHORIZE the Community
Development Director or his designee to submit one or possibly twq funding applications
to potential granting organizations in order to better define funding'opportunities for this
proposal. SCHEDULE a Board decision on County participation in this effort for the spring
of 2000 following consideration of potential changes to the Urban Limit Line.
FISCAL IMPACT
Some staff time will be required to perform the above-recommended tasks related to better
defining the HCP proposal. Successful requests for grant funding would augment the pool
of potential funding for the HCP, but would not obligate the County to participate. If, at a
later date, the County elected not to participate, grant funds could be returned or passed
on to other government entities that choose to go forward with some version of the project.
CONTINUED ON ATTACHMENT: X .YES SIGNATURE
'T' __0__JtUa4
RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD
COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ONAPPROVED AS RECOMMENDED OTHER !
The following persons presented testimony:
Carl Wilcox, California Department of Fish & Came;
Sheila Larsen, U.S. Fish and Wildlife Service, 3310 El Camino Ave W-206, Sacramento;
Jim Cwerder,,,11847 W. Valpico Road, Tracy,
IT IS BY THE BOARD ORDERED THAT the status report from the Community Development Director on the
proposed East Contra Costa County Habitat Conservation Plan is ACCEPTED; and January 25, 2000, at 1:00 p.m., is
SCHEDULED for a Board decision on County participation.
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 DATE
SHOWN,
Contact: John Kopchik (925) 335-1227 ATTESTED L > -►
cc: Community Development Department (CDD) PHIL BATCHELOR, ,CLERK OF
County Administrator BOARD OF SUPERVISORS
County Counsel AND COUNTY ADMINISTRATOR
Public Works
Agricultural Commissioner r
SAConserv\Johnihcpdec99.bo,doc BY DEPUTY
r
Report on Habitat Conservation Plan
December 7, 1999
Page
BACKGROUND/REASONS FOR RECOMMENDATIONS
On March 18, 1998, the U.S. Fish and Wildlife Service (USFWS) and the California
Department of Fish and Came (CDFG) sent a letter to the County and other local
government agencies urging that a regional Habitat Conservation Plan (HCP) be
developed for Eastern Contra Costa County (attached). A regional HCP is a tool for
receiving endangered species permits and possibly other permits over a broad area by
establishing conservation measures, including a coordinated mechanism for purchasing
habitat as a means for mitigating impacts. The plan and the associated permits would be
based on a regional analysis of habitat and economics, baseline information intended to
help agencies avoid impacts, effectively mitigate those impacts which can't be avoided,
and fairly distribute the costs of conservation. The USFWS has also made clear that
developing a regional HCP may reduce permitting obstacles to full use of Contra Costa
Water District water rights and to transportation measures like the State Route 4 Bypass.
A multi-agency staff report presented to the Board last year is attached to this report for
further background on the HCP concept.
In October of 1998, the Board received a report from staff and heard a presentation from
representatives of the U.S. Fish and Wildlife Service and the California Department of Fish
and Game. At that time, staff was authorized to conduct additional work on the proposal
to frame a later decision by the Board on whether to participate in the development of such
a plan.
Since then, staff has met periodically with other involved local and regulatory agencies to
discuss the matter, further explore the advantages and disadvantages of such planning,
and draft a suggested agreement for cooperatively developing f an HCP should such action
be authorized. The current draft of the agreement, which is provided as an attachment,
calls for the formation of a Joint Powers Authority to fund and manage development of an
HCP. Due its regional jurisdiction and land use planning authority, the Draft JPA
Agreement would assign the County a leadership role.
The purpose of this report is to provide an update on the HCP proposal, suggest a
schedule for considering County participation, describe potential grant opportunities, and
summarize key aspects of the Draft HCP JPA Agreement.
Scheduling a decision on participation: Though the Draft JPA Agreement and other
supporting materials could be readied soon for a Board decision, staff recommends that
such a decision on participating in the HCP be postponed until after the Board resolves
proposed changes to the Urban Limit Line (ULL), in the East County area. Board
consideration of ULL changes is expected to occur in the spring of 2000.
Both the ULL changes and the proposed HCP relate to the issue of growth, albeit in
different ways. The ULL is a limitation on growth while the HCP would be intended to deal
with some problems associated with growth (i.e., habitat loss, environmental permitting
issues, ineffective mitigation). Nonetheless, any HCP that is developed would need to
consider planned or potential future growth. The location of the ULL could influence the
content of a future HCP and inform the Board's decision on participation In the HCP effort.
Grant opportunities: As explained in greater detail below, the Draft HCP JPA Agreement
would directly raise $435,000 for preparation of the HCP from sources other than the
County. However, we estimate that more than $200,000 in additional, outside funds will
be necessary to complete the HCP. The Draft HCP JPA Agreement calls for raising such
funds through grants from the public or private sector.
Local agency staff identified two potentially suitable grant programs with application
deadlines this fall: the EPA State, Local, Tribal Wetlands Grant Program and the National
ell
Report on Habitat Conservation Plan
December 7, 1999
Page 3
Fish and Wildlife Foundation (a private organization that works closely with federal
agencies like the U.S. Fish and Wildlife Service). County staff submitted a brief pre-
proposal to the EPA program for$175,000, and recently received a response inviting a full
proposal (though we were advised to request slightly less funding). We have also
submitted a pre-proposal to the National Fish and Wildlife Foundation for $72, 500. A
response to the latter pre-proposal is forthcoming. The Board is being asked for
authorization to submit full proposals to the EPA and, if they accept our pre-proposal, to
the National Fish and Wildlife Foundation.
Pursuing grant funds at this time will help to clarify the financial situation of the HCP by
next spring when the Board is considering the question of County participation. If our grant
applications were favorably received, the HCP effort would have all or nearly all the funds
we estimate to be necessary. However, other non-County funding options do exist as well.
Success with grant funding would not obligate the County to participate in the planning
effort. If, when considering the matter next spring, the County elected not to participate,
grant funds could be returned or passed on to other government entitlesrthat choose to go
forward with some version of the project.
Summary of current draft of HCP Agreement: The draft agreement provides for the
formation of a Joint Powers Authority (JPA) which would include the County, the Cities of
Antioch, Brentwood, Clayton, and Pittsburg, the Contra Costa Water District (CCWD), and
the East Bay Regional Park District (EBRPD). The agreement anticipates the potential for
the City of Oakley to also join the JPA, though, since that City only incorporated a few
months ago, Oakley staff was not present when the Agreement was originally drafted.
The duties of the JPA would be to prepare a draft Habitat Conservation Plan for submittal
to the governing boards and councils of member agencies (each member agency would
then make an independent decision on approving the plan and submitting it as a permit
application to the regulatory agencies). The JPA would also oversee compliance with the
California Environmental Quality Act (CEQA) and the National Environmental Policy Act
(NEPA), and would serve as the lead agency for CEQA purposes. The draft agreement
calls for the JPA to provide regular updates on development of the HCP to the governing
boards and councils of member agencies.
The JPA would be governed by a committee of elected officials. Each member agency
would designate one representative and one alternate from their governing Board or
Council to participate on this committee. Representatives from land use planning
agencies, i.e. the County and the cities, would have one vote on all matters under
consideration by the JPA. The representative from the Contra Costa Water District would
have one vote on all administrative matters, but no vote on land use matters. The
agreement sets out the types of decisions which could be considered administrative and
the types which could be considered as land use matters, and provides that, should any
uncertainty exist regarding the ability of CCWD to vote on an item, the land use planning
agencies would resolve this question with a vote. The EBRPD would have input on
decisions but no vote.
Staff from JPA member agencies would manage the operations of the JPA and implement
the actions authorized by the committee of elected officials. The County's Community
Development Department would take the lead staff role and would be designated as the
"Coordinating Agency." The draft agreement provides that costs incurred by the
Community Development Department in its capacity as "Coordinating Agency" would be
reimbursed by the JPA (roughly estimated at about $50,000 per year). The draft
Agreement also calls for the JPA to initiate and manage a public outreach and involvement
program which would include at least one standing advisory committee of affected
community interests and the conduction of broader public workshops as necessary.
Report on Habitat Conservation Plan
December 7, 1899
Page 4
The estimated cost to develop the HCP, including consultant costs and Coordinating
Agency costs, is approximately $650,000 plus a 10% contingency reserve. Of this total,
the draft agreement would directly raise $435,000 as follows: $625,000 from Contra Costa
Water District, $100,000 from the State Route 4 Bypass Authority, and $10,000 from the
City of Clayton. The contribution from the State Route 4 Bypass Authority is required as
permit condition for implementation of the first phase of the Bypass Project, and, for
purposes of the draft JPA agreement, is considered to represent the contribution of the
County and the Cities of Antioch, Brentwood, and Pittsburg (and Oakley, should it join the
JPA). Contra Costa Water District would pay half of$65,000 contingency reserve, should
this be necessary. The remaining $215,000 (plus the other half of the contingency
reserve) would be raised via grants from the public and private sector. Though a number
of potential grant sources exist and the JPA is likely to be in a good position to apply for
and receive such grants, the JPA would be required to develop a contingency strategy for
developing a useful plan with less than full funding. The decision on whether to implement
the planning process before all needed grant funds are in hand would be made by the JPA.
Final legal review of this Draft Agreement by County Counsel has not yet been conducted.
Such review would occur before the Board makes a decision on participation. Comments
from the Board on the Draft Agreement are welcome.
Information on Other HCP Efforts: To better define the HCP proposal, staff has
contacted other agencies in Northern and Central California that have completed, or are
in the process of completing, an HCP for their region. The driving forces behind these
efforts appear to be increased scrutiny from USFWS combined with the desire for a
coordinated approach to conservation that provides long term assurances and local
control. Based on discussions with these agencies, we have prepared a chart comparing
some key features of these plans, such as costs, public process, mitigation strategies, etc.
We will continue to update and add information to this chart between now and the next
time the Board discusses this matter.
Next Steps: Should the Board approve the above recommendations, staff will submit
funding applications and prepare a staff report for a spring 2000 decision by the Board on
participation in the HCP effort. The staff report will include a revised Draft JPA Agreement,
Staff will continue to meet occasionally with staff at other interested agencies to finalize
details of the HCP proposal,
Because of its proposed leadership role, staff from the involved local agencies believe that
the County should be the first*local agency to make a formal decision on participating in
the HCP effort. The Contra Costa Water District, because of its important financial role in
the proposed JPA, will likely consider the matter next. The Cities of Antioch, Brentwood,
Clayton, Oakley; and Pittsburg and the Bast Bay Regional Park District will follow Centra
Costa Water District.
Attachments:
• October 1998 Board Order and attached multi-agency Staff Report explaining the HCP
concept
• March 9996 letter from USFWS and CDFG urging development of an HCP in East
County
• Draft HCP JPA Agreement
• Chart comparing features of other HCPs in Northern and Central California
S:\Conserv\John\hcpdec99.bo.doc
HCENCCE Staff port
September 30, 1998
Report prepared Jointly 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(CCWD). Finalized
for presentation to the Contra Costa County Board of Supervisors by staff at CCC.
Introduction
On March 18, 1998, the I.I.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. How 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.
RCP'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 pen-nit development on San Bruno Mountain in San Francisco. Since then,
thousands of individual landowners or developers have completed relatively small-scale RCP'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 Valley,
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.
J
The concept of developing a regional HCP/NCCP 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
r
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
ofNCCP's and provide an approximate state equivalent to the federal HCP. Both the Clinton and
"Wilson administrations have advocated regional HCP's/NCCP'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 grange County and the City of Bakersfield, and plans nearing completion in San
Joaquin, Y'olo, and Sacramento Counties.
2. East County Background.
The USFWS and CDFG initiated discussion of the purpose and need for developing a HCP for Bast
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(af/y), and prevents CCWD from using their full entitlement of 195,000 af/y 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
laud 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 ofHCP/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 landowner/developer and the USFWS and
CDFG in order to obtain an individual take permit(ITP)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. In Contra Costa County, the ITP is more often issued under 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 ITP 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 (COB), 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 COE. 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 HCP/NCCP'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 HCP/NCCP'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.
HCP/NCCP'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. HCP/NCCP'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:
itnosu=r ses'", 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
HCP/NCCP, 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 gurchased v r 1 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.
volunt a. rt'cci a. tion.' Many HCPINCCP'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 attractive to ensure that the
participation rate matches expectations.
hold harmLfu grovi ions: Plans can include hold harmless provisions which provide assurances
to those landowners adjacent to acquired preserves.
„ n n .ing a ternatives:_ 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. pf
continued air zine 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 lands acquired or placed under easement. In HCPINCCP's where prime
agricultural lands are purchased for habitat value(e.g., in Yolo County), current agricultural
activities are expected to continue.
man-based vs. process-basedIp ans: 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 Walley
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
HCP'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 COE and the R.WQCB primarily requires the complete involvement of these and
other wetlands agencies, such as the EPA, in the planning process. Integrating wetlands permitting
5
el
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.
• Det inethe geographic gco, 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.
• Develgp a Memorandiim Qf L7nder2tandinia (MOLD among local agencigs, The proposed MO'U
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.
• with • 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
ex' ; ,od
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.
* lglect a.consultant. A consultant having biological resources expertise and familiarity with
developing an HCP/NCCP should be considered. The details of consultant selection,
management, financing and staff coordination may be addressed in the local MOU.
* Establigh a B!jblic Qu=acUnvglyement_Er_ogr=: HCP/NCCP 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.
* Define goala gnd establish par eters for_ HC"P/NQCP; 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 migation 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 HCP/NCCP in achieving the
overall species protection, economic and open space goals
7. Preliminary Analysis
Development of an HCP/NCCP for the East County area could increase local control of land
use decisions by locking in USFWS and CDFO 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 funding sources for planning purposes. One
such funding source may be the Environmental Protection Agency(EPA).
Disadvantages and risks associated with preparing a regional HCP/N'CCP 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
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