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HomeMy WebLinkAboutMINUTES - 07172001 - D.4 FEAL L+ Contra Costa TO: BOARD OF SUPERVISORS County I;VUN'�� FROM: DENNIS M. BARRY, AICP COMMUNITY DEVELOPMENT DIRECTOR DATE: July 17, 2001 SUBJECT: Report on Reconsideration of County Participation in the Development of a Habitat Conservation Plan for Eastern Contra Costa County SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION 1) CONSIDER AUTHORIZING the County Administrator, or his designee, to execute an agreement with the Cities of Antioch, Brentwood, Clayton, Oakley, 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) DECLARE support for the nineteen Principles of Participation contained. in Attachment 1 to this report which have been approved by the five cities participating i -development of the HCP (these principles were based on those originally submitted by the Contra Costa Council on April 24, 2000), or DECLARE support for the modified set of Principles of� Participation contained in Attachment A to the June 6, 2000 Board Order which were compiled by staff to'integrate the comments of Save Mount Diablo/Greenbelt Alliance a d the Contra Costa County Citizens Land Alliance with the Principles prepared by the ontra Costa Council; 3) APPOINT two members of the Board of Supervisors to the Executive Governing Committee of the Joint Powers Authority established to oversee development of the HCP, one as a Committee Member and one as an Alternate Committee Member. 4) DIRECT the Community Development Director, or his designee, to provide the Board with a progress report on HCP development at a minimum o six month intervals. CONTINUED ON ATTACHMENT: X YES SIGNATURE /vl RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMIT EE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON Jii13T17, 2n111 APPROVED AS RECOMMENDED , OTHER x SEE ADDENDUM FOR BOARD ACTION VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE UNANIMOUS (ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN AYES:? �NOES: -;4C- AND ENTERED ON THE MINUTES OF THE ABSENT: rr�ne_ ABSTAIN: none, BOARD OF SUPERVISORS ON THE DATE SHOWN. f Contact: John Kopchik (925) 335-1227 ATTESTED Q cc: Community Development Department (CDD) Jo:m SFieeten " "` CLERK OF County Administrator BOARD OF SUPERVISORS County Counsel AND COUNTY ADMINISTRATOR Public Works Agricultural Commissioner WAPersonal\John main\hcpboju1y01.doc BY , DEPUTY Aff� Report on Reconsideration of Participation in East County Habitat Conservation Plan July 17, 2001 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 coordinate the Habitat Conservation Plan Association (HCPA)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 coordinating the HCPA, such as representing County interests.at meetings. Future Fiscal Considerations: 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 initial economic analysis for the San Joaquin County HCP estimated that the total cost of implementing that very large plan over 50 years would be $263 million. The approach San Joaquin County will use 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 plan 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). 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 HCP's programmatic approach to permits was more cost- effective for all parties. BACKGROUND/REASONS FOR RECOMMENDATIONS The Board of Supervisors has considered the proposal to develop an East County HCP for several years (the complete legislative history of this matter, together with the supporting background information, is attached). Most recently, on June 6, 2000, the Board declined to participate in the East County HCP. At the same time, the Board scheduled a reconsideration of the matter 1 year later after the new Supervisor from District V had taken office. This report presents updated information for that reconsideration. What has changed since June of 2000? The proposal for developing an East County HCP is largely unchanged since June of 2000 and the background information provided previously remains valid. The text of the Joint Powers Agreement (referred to as the HCPA Agreement) has not changed, though the agencies that approved the Agreement previously are planning two modest updates, one to reflect the City of Oakley's participation and a second to reflect that the Contra Costa Water District would act as the Treasurer/Controller(see below for additional explanation). Provided below is a summary of key developments on the East County HCP since June of 2000: • The City of Oakley agreed to participate in the East County HCP and approved the WL £ tiGA j, Contra Costa TO: BOARD OF SUPERVISORS Count FROM: DENNIS M. BARRY, AICP COMMUNITY DEVELOPMENT DIRECTOR DATE: July 17, 2001 SUBJECT: Report on Reconsideration of County Participation in the Development of a Habitat Conservation Plan for Eastern Contra Costa County SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION 1) CONSIDER AUTHORIZING the County Administrator, or his designee, to execute an 1� agreement with the Cities of Antioch, Brentwood, Clayton, Oakley, 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) CLARE support for the nineteen P 'nciples of Participation c ained in Atta ent 1 t this rep which ve een a rove by the ' e 'ties icipat g in d elopment of t e H (th se Inciple re based n ose originally submitt y the Contra Cost ouncil o pril 24, 2000), or DECLARE support for the modified set of Principles of Participation contained in Attachment A to the June 6, 2000 Board Order which were compiled by staff to integrate the comments of Save Mount Diablo/Greenbelt Alliance and the Contra Costa County Citizens Land Alliance with the Principles prepared by the Contra Costa Council; 3) APPOINT two members of the Board of Supervisors to the Executive Governing Committee of the Joint Powers Authority established to oversee development of the HCP, one as a Committee Member and one as an Alternate.Committee Member. 4) DIRECT the Community Development Director, or his designee, to provide the Board with a progress report on HCP development at a minimum o six month intervals. CONTINUED ON ATTACHMENT: X YES SIGNATURE kt L=' RECOMMENDATION OF COUNTY ADMINISTRATOR __RECOMMENDATION OF BOARD COMMIT EE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE 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 cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF County Administrator BOARD OF SUPERVISORS County Counsel AND COUNTY ADMINISTRATOR Public Works Agricultural Commissioner WAPersonalWohn main\hcpboju1y01.doc BY DEPUTY Report on Reconsideration of Participation in East County Habitat Conservation Plan July-'!7, 200.1 Page 3 HCPA Agreement. The agencies that approved the HCPA agreement previously include the Cities of Brentwood, Clayton and Pittsburg, the Contra Costa Water District ("CCWD"), and the East Bay Regional Park District. The City of Antioch approved the Agreement as well, but conditioned its participation on two things: First, Antioch requested that other agencies adopt the Principles of Participation (Antioch adopted the nineteen principles in Attachment 1 to this report which were based on those principles originally submitted by the Contra Costa Council on April 24, 2000). Each of the involved cities has now adopted those Principles. Second, Antioch requested assurances that they would not be required to fund development of the HCP. Antioch's concerns on financial assurances have not been resolved. • The Executive Governing Committee ("EGC") of the HCPA met twice in the Spring of 2001 to initiate the process for preparing the East County HCP. The EGC selected Frank Quesada, Mayor of the City of Pittsburg, as Chair and Jeff Huffaker, Councilmember of the City of Oakley, as Vice-Chair. Since the County was not party to the Agreement, the Executive Governing Committee designated the Contra Costa Water District ("CCWD") to act as the HCPA Treasurer and Controller. HCPA member agencies remain interested in the County joining the HCPA as the Coordinating Agency, as provided in the HCPA Agreement. • HCPA member agencies circulated a Request for Proposals from consultants qualified to prepare the East County HCP. Three bids were.received. • The Executive Governing Committee is scheduled to meet again on July 30 to select a consultant and to begin to define and initiate the public outreach and involvement process. Update on funding to develop the draft HCP: Committed funds to develop the HCP remain as described in the HCPA agreement, but have been augmented by an EPA grant. Below is a summary of committed funds: CCWD: $325,000 State Route 4 Bypass Authority: $100,000 City of Clayton: $10,000 EPA Grant: $75,000 CCWD's commitment to reserve fund: $32,500 Total Committed Funds: $542,500 Local agencies that comprise the HCPA are currently pursuing two additional funding sources. One of these is a $200,000 grant from the U.S. Fish and Wildlife Service. The second is a request to USFWS to redirect$20,000 of CCWD funds away from generation of the 2001 annual update of the map of species in the CCWD service area and toward development of the HCP. Likewise,the HCPA agencies anticipate including a grant-writing component to the HCP consultant contract. The HCPA agreement estimates the costs of completing the HCP at $650,000, including consultant costs and County staff costs to coordinate the HCPA. That estimate was based on the cost of similar plans in Northern California, but did not reflect the costs of wetlands permitting (see page 11, paragraph 13 of the HCPA Agreement). HCPA agencies are targeting their fund raising efforts above$650,000 to include wetlands permitting, to cover uncertainties in the cost estimate, and to prepare for contingencies. Principles of Participation: In the view of staff, there is merit in identifying a list of participation principles prior to joining the East County HCP process. The Contra Costa Council originally suggested this concept and also provided a recommended list of 18 principles. A modified version of these principles, with one added regarding public infrastructure projects to total 19 in all, have been adopted by each of the participating cities. Should the Board elect to participate in the East County HCPA, we have provided two Report on Reconsideration of Participation in East County Habitat Conservation Plan July 17, 2001 Page 4 options concerning participation principles. The first is to declare support for the 19 principles in Attachment 1 to this report. If this approach were taken, the County's action would exactly match that taken by the cities. The second option is to declare support for the 21 principles in Attachment A to the June 6, 2000 staff report which were developed by staff last year by attempting to integrate the 18 principles suggested by the Contra Costa Council with the comments of Save Mount Diablo/Greenbelt Alliance and the Contra Costa County Citizens Land Alliance (the June 6, 2000 staff report contains a more detailed explanation of how the set of 21 principles were created). Attachment 2 to this report contains a table comparing the content of the two sets of principles. 9 principles are identical in the two sets and are omitted from the table. Many of the other principles are virtually identical, differing only because they were edited by different agency staff at different times. For instance, principles 3 and 4 are identical in both versions except that the set prepared by County staff refers to the California Department of Fish and Game ("CDFG") in addition to the U.S. Fish and Wildlife Service ("USFWS"). Principles that differ to any significant degree are marked with an asterisk. As an alternative to approving either set of principles, the Board is also free to make edits, to take some other action to identify its expectations and provide assurances to stakeholders, or ignore the matter altogether. Summary of the Advantages and Disadvantages of the proposed East County HCP: Provided below is a very brief review of the advantages and disadvantages of the East County HCP and the County's participation in it. A more thorough analysis is provided in past staff reports. Advantages and opportunities: • increased local control of land use decisions by locking in U.S. Fish and Wildlife Service ("USFWS") and California Department of Fish and Game ("CDFG") permit approvals up front--replacing project-by-project permitting under state and federal agencies with a locally-administered conservation and permitting program . • redirect money away from the process of permitting and toward the protection of resources (i.e., rather than spending limited funds to incrementAy survey, negotiate, and argue impacts and mitigation, funds can be directed toward actual conservation of the regulated resource) • improved certainty, permit streamlining, and "no surprises" for landowners and developers affected by endangered species regulations and interested in participating in the HCP (implementation of the HCP would voluntary—project proponents could choose to receive permits through the HCP or could comply with regulations on their own) • improved protection for biological resources by helping to assure that habitat acquisition and management are coordinated and guided by ecological principles • removal of obstacles to implementing public infrastructure projects, including CCWD's full use of its Central Valley Project water contract and major regional transportation projects • improved regional or sub-regional coordination • offers a mechanism for rewarding willing landowners for on-going resource stewardship (i.e., funding for acquisition of conservation easements) Disadvantages and risks: • some initial costs of complying with the Endangered Species Act and other regulations 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 Report on Reconsideration of Participation in East County Habitat Conservation Plan July 17, 2001 Page 5 change their positions on components of the plan • landowner concerns and skepticism, particularly over issues related to property rights, property values, and endangered species regulations • conservation organization concerns and skepticism, particularly over growth inducement and the impact to species of offering developers "no surprises" • developer concerns and skepticism, particularly with the HCP raising the bar on mitigation and/or restricting growth • significant time, effort, and money involved in preparing such plans • as the HCP proposal deals with a controversial subject and would involve multiple independent bodies, there is a legitimate risk that the process could fail to achieve some, or, in the worst case, all of its goals • litigation risks, including the risk that parties unhappy with the final HCP could sue to attempt to block implementation Attachments: • Attachment 1, Cover memo (dated March 29, 2001) and Principles for Participation approved by cities participating in developing the East County HCP • Attachment 2, A table entitled, "Comparison of Two Sets of Principles of Participation" • Attachment 3, February 6, 2001 letter from the Contra Costa Transportation Authority • Past Board Orders and staff reports related to the East County HCP W:\Personal\John main\hcpbojuly0l.doc ADDENDUM D.4 July 17, 2001 On this date, the Board of Supervisors considered County participation in the development of a Habitat Conservation Plan for Eastern Contra Costa County. John Kopchik, Community Development Department, presented the staff report and recommendations. The Board asked various questions regarding the impacts to the County should the decision be to participate or not participate and financial responsibilities. The Chair invited the public to comment. The following persons presented testimony: Nick Papadakos, Byron Municipal Advisory Committee, P.O. Box 96, Byron; Eric Hasseltine, 3182 Old Tunnel Road, Suite E, Lafayette; Guy Bjerke, Home Builders Association, P.O. Box 5160, San Ramon; Carl Wilcox, California Fish& Game, P.O. Box 47, Yountville; Jim Gwerder, Contra Costa County, Citizens Land Alliance, P.O. Box 553, Byron; Dennis McCormac, East County Habitat Conservation Plan Association/Contra Costa Water District, P.O. Box 1120 Concord; Frank Pereira, Citizens Land Alliance, 6040 Alhambra Valley Road, Martinez; Tom Brumleve, Contra cost Farm Bureau, 1512 N. Gate Road, Walnut Creek. The following did not wish to speak, but left written comments: Amber Pflager, Executive Director, Contra Costa Farm Bureau;5554 Clayton Road, Concord. Following further discussion, the Board took the following actions: AUTHORIZED the County Administrator, or designee,to execute an agreement with the Cities of Antioch, Brentwood, Clayton, Oakley, 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; DECLARED support for the modified set of Principles of Participation(as compiled by staff with the integrated comments of Save Mount Diablo/Greenbelt Alliance and the Contra Costa County Citizens Land Alliance with the Principles prepared by the Contra Costa Council); APPOINTED Supervisors Gerber and Glover to the Executive Governing Committee of the Joint Powers Authority established to oversee development of the HCP, Committee Member/Alternate status to be determined; DIRECTED the Community Development Director or designee provide the Board with a progress report on HCP development at a minimum of six month intervals; and DECLARED that the authorization to execute the aforesaid agreement for the preparation of a Draft HCP is contingent upon the Board's representatives to the Executive Governing Committee being allowed participation in selecting a consultant to prepare the East County HCP. (AYES: I,III,IV,V;NOES:11;ABSENT:None;ABSTAIN:None) ATTACHMENT 1 EAST CONTRA COS'T'A COUNTY HABITAT CONSERVTION PLAN ASSOCIATION Staff Report DA'T'E: March 29, 2001 TO: Executive Governing Committee FROM: Agcncy Staff Adr, SUBJEC'T': Adoption of Principles of Participation IN'T'RODUCTION Turing the ;approval process for the East Contra Costa County Habitat Conservation Plan Associalion (HCPA) Agreement several stakeholders groups submitted comments on the In opo,ed Agreement. The Contra Costa Council comments and issues were developed into a set of C'rinciples of Participation (Principles) for the HCP development(Exhibit A) Letters from the conga Costa Council, Save Mt.Diablo/Greenbelt Alliance and the Contra Costa County Citizens Land Alliance have recommended approval of marry of the Principles. Ri;C:OMMIEW)ATION Approve the Principles of Participation. DISCUSSION On May 3, 2000, the USFWS management staff reviewed the proposed Principles. Representatives froin the various stakeholder groups were in attendance. Agency staff made minor modifications to the Principles to remove obvious contradictions. The primary inconsistency among the recommendations relates to how implementation of habitat conservation and management should be funded. The Contra Costa Council favors public funding. Conservation Groups favor developer funding. Resolution of funding may be premature as the MCP has yet to be drafted and the ultimate content of the plan may influence the funding strategy. Antioch and Pittsburg have approved the Principals. Brentwood has not reviewed tl;w-.Principles. Oakley (lid not consider the Principles during their approval process. Agency staff is recommending approval of the Principles by the Executive Governing Committee. This approval process would allow for review and approval by all members of the EGC. The Principles would be positive guidelines to move the HCP forward by focusing the planning effort and recognizing at tlic outset the important role stakeholders will play in the HCP development process. The Principles are considerccl related to land use issues; therefore, Contra Costa Water District approval is not required. Dmctrlr Exhibit A: Principles Of Participation ATTACHMENT 1 PRINCIPLES OF PARTICIPATION EAST CONTRA. COSTA. COUNTY REGIONAL HABITAT CONSERVATION PLAN 1. Development consistent with local plans should be allowed to proceed as bet-ore, in accordance with existing permitting requirements, until any HCP is implemented_ 2. The plan trust be based on respectable biological surveys and sound scientific analyses, i.e. the need exists and the program will produce the intended result. 3. USFWS 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 die resultant HCP. 4. USFWS and the plan sponsors shall agree to hold periodic reviews during the development of the plan to avoid any major disagreements later. 5. 'nig Incidental Take Permit must be totally consistent with the approved HCP. G. 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, the plan should not impose costs of any contingent mitigation on private property owners. S. 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 tic 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. "I7tere must be a cornmirtee of stakeholders established in advance of the planning process which includes local elected officials, landowner representatives, and environmental interests. 16. Funding of the HCP proposed for East Contra County should be as broadly based as practicable, possibly including a public bond measure for the acquisition and maintenance of open space/habitat lands. 17.. The HCP's conservation strategy should provide full recognition of past and future public and private habitat and open space acquisition and ocher mitigation efforts. 18. There should be federal participation in MCP funding since this effort is a pass-through of obligations imposed by USFWS on other federal agencies under Scction 7 of ESA. ATTACHMENT 1 19. Public infrastructure projects,such as those for roads, highways (such as Hwy 4 improvements and the Hwy 4 Bypass), storm drainage(such as East Antioch Creek), sewer, water, shall be allowed to proceed in accordance with existing permit requirements in an expeditious and timely manner before an HCP is implemented. l i i O 0 N U 7 � t3 o TS O N d O G 0- 0. 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O0 n ° p'° @ , o N Comc' a� o s N 'c °c' E a N mac@• a c� •w � p.. 3 a o O-d Nab ' co 0 4ce) At . <r UA N 7 � Z ATFACHMENT 3 CONTRA COSTA TRANSPORTATION AUTHORITY rONVtsstt)NERs: February 6,2001 Mirth:Creenbonl I Ion.Gayle Uilkema,Chairperson Chair Board of Supervisors Contra Costa County 1rmaArMerson 651 Pine StrCct • Vrm•1;hair Martinez,CA 94553 C1tar(rc Atu:luts RE. Participation in the Fast County Habitat Conservation Plan Marla Akgda trs,01 DonafdP.ricifas Dear ChairpUilkeina: Donna Gerber In recent discussions with representatives of die U-S.Fish &Wildlife Service, the desirability of Fedorn►Grover advancing (tic Habitat Conservation flan(IICP)for eastern Contra Costa County was discussed. We believe it is in the best interests of all affected governmental agencies to participate in Walt/ Gorrres preparation of the HCP,and would encourage the County to join in this effort when you reconsider Julie Piemn, it later this year. 7eny se9Lrberg Hopefully,through the HCI'process a consensus will emerge regarding how to protect endangered Don Tatzin species habitat. If such an agreement were to be reached, it would allow transportation improvement projects to move forward which otherwise would be subject to individual scrutiny on a.piccenleal basis. In theory,preparation of an I•iCP,and resulting agreements for protection of Robert K McCleary habitat,could speed completion of the Route 4 Bypass and avoid delays that might otherwise Executive Director occur for our Route 4,east projects. Absent such an agreement to move forward with the HOP planning process,we anticipate that the Service may challenge those projects as indirectly threatening endangered species' habitat by accommodating growth, and require us to address growth inducement as part of the individual biological opinions prepared for each project. Preparation of an HCP in a timely matlner could obviate the need for extensive analysis of this complex issue on the part of the Service and our consultant~, and thereby facilitate our timely project delivery. Therefore,I have been authorized by the Authority's Administrative and Projects Committee to encourage the County to participate in the development of the IICP. If yoy have any questions, 10case call me. Sincerely, 3340 Tical Foutl vard c Suite too - Robclt F'<. Mc ry watnui Creek CA 9459fr7964 cc, Authority members Phil Batchelor,County Administrator P1(ONE: Lowell Tunison Public Works 91593113370 � Dennis McCormac,CCWD IAX. Wayne S. White,1'&WI, 92."313-3993 trt(pliSvwrw,crta.nct OM4y Docamaxts\Projeecs\200111iCP,OCCa,reb S.doe 1 B F_•AL - Contra _�..�_,- TO: BOARD OF SUPERVISORS Costa - o County nasTq hiinC� J / FROM: DENNIS M. BARRY, AICP COMMUNITY DEVELOPMENT DIRECTOR DATE: June 6, 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 VOT\FSUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE UUS (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 ik 25) 335-1227 ATTESTED June 6 , 2000 cc: Community evelop 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\hcpjanOO.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 (HCPA) 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 plan 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 cost 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, 2000 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. Plans 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 Report 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: 5000 acres 8300-11,400 units(+non-residential) Proposed or potential projects outside of city limits but under some form of review by a city are tabulated below2: 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(Cowel13) 4300 acres 5200 units plus non-residential Total County: 4300 acres 5200 + 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 HGP 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 Order • 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 PARTICIPA'T'ION: 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 Diablo/Greenbelt Alliance, and the CCC Citizens Land Alliance. Please see staff report for 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 Pen-nit 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 finds. 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 finds, 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, andSAID/Greenbelt #2 3) Based on CC Council #3 4) Based on CC Council #4 S) Based on CC Council #S 6) Based on CC Council #6 7) Combines CC Council #7 and SMD/Greenbelt #6 8) Based on CC Council #8 9) Combines CC Council #9 and SIvID/Greenbelt #3 10)Based on CC Council #10, but also attempts to address specific comments of CLA 11) Based of CC Council #11 12)Based on CC Council #12, but language adopted from East 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 1 S) Combines CC Council #15 and SMD/Greenbelt #8 16) Combines CC Council #16 and SMD/Greenbelt #S 17) Combines CC Council #17 and SMD/Greenbelt #4 18) Based on CC Council #18 19)Based on SMD/Greenbelt #1 20)Attempts to address specific comments of CLA 21)Developed by staff we-42221 ADDENDUM TO ITEM DA June 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 Constriction, 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 Part: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 k k k k L i APR 2 6 2000 ,t. B �, i 10• 34 �-- (iF J `1Z t� CLE,7,i[077 ;' C,2g 0 t110411M April 24, 2000 Donna Gerber Chair, Contra Costa County Board of Supervisors 651 Pine Street No. Wing, 4th Gary W. Crett,AICP Floor Gary Craft Consulting Group Immediate Pest President Dear Supervisor Gerber, Bill,Gray tam R.Gray B Company President Elect Enclosed with this letter is a copy of the Contra Costa Council's Ron Wetter Director.P.bhc Affairs recently adopted policy position with respect to Habitat Pacific Gas B Electric Co Conservation Plans (HCP). In the coming weeks you are slated Vice President Task Forces to consider entering into a participation agreement with other Vicky De Young Office Properly Agent agencies to pursue the preparation of an HCP. We strongly urge Grubb 8 Ellis you to consider each of the 18 elements of our policy position Vice President Task Forces before agreeing to be a participant. Hermann Welm Principal ICL Consulnng Our policy position was developed after many hours of meetings Vice President Finance between several of our different Task Forces and following Rick Wise Regional President lengthy discussion by our Board of Directors. We feel without the Contra Costa Banking Cer.ler incorporation of these principles an HCP 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 Vice President statement or would like further information, please don't hesitate Communications to contact me. Toml Van de Brooke Pnnc,par 'JdB Communications Executive Director S. cerely, Jim Jakel 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 Ygnacio Valley Road, Suite 202,Walnut Creek, CA 94596 925. 944-8975 925. 944-8989 fax email ccouncil@pacbell,net website:cccouncil.org C. C./ 3 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 of proof 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 (9h 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 erect 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. 3. USFWS 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 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 impadt 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 404 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. Recommendation The Contra Costa Council recommends that the jurisdictions of Contra Costa County participate in the East Contra Costa County Regional Habitat Conservation Plan if the above 18 principles are included in the Participation Agreement. 4/21/00 05/30/2000 16: 19 925941 r 3603 SAVE NIT DIAELS PAGE 01 v E' i • Attn.: John Kopchik SMD Headquarters Board of Supervisors 1 196 Boulevard Way Contra Costa County Suite 10 651 Pine Street Walnut Creek,LA 44595 4th Floor, North Wing SMD Malling.Address Martinez, CA 94553-0095 P.O.Box 5376 Walnut Crcck,CA 94596 May 30, 2000 Telephoner (925)947-3535 Members, Board of Supervisors- Fax; (95)947-3603 email. Save Mount Diablo and Greenbelt Alliance jointly support preparation of an save,nidiab@aol,com Fast County Habitat Conservation Plan CHOP" 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, Founder Art Bonwcll Secretary There is great value in supporting a regional mitigation scenario, with buy-in Amara Koss,I.D. by various stakeholders, to ensure that the federal and state Endangered Treasurer Nigel Ogilvie,CFA Species Acts are uniformly enforced while also providing a funding stream for FrecutYve Board preservation of endangered species habitat. Mary L, BowcrmEin,Ph.D. FounderWhile developer and infrastructural improvement fees should fund the Marty Brcen majority of this mitigation, there are also public funds specifically earmarked Paul choissrs .for federal Habitat Conservation Plaits and for state Natural Community Don de Fremery,Ph.D. Karen Hunt,CTIA Conservation flans, Without such plans in our area, we cannot compete for Stephen Joseph these funds. Bob Marx Steven Mehlman,J.U. Bob Nunn While creation of HCPs and NCCPs can provide permit streamlining for A118n Prager projects, they do not substitute or negate requirern.ents .for CEQA review of °a"`Sargent and public involvement in individual project approvals. It is important that Executive Director good regional Band use planning and careful environmental analysis be Gcrry Kccnin continued. We urge the Board of Supervisors and Flan proponents to adhere to the following general principles during Plan preparation. Environmental Princilea 1) The Habitat Conservation Plan should rely on avoidance as the primary means for addressing irreplaceable resources such as creeks, wetlands and endangered native plant communities, 05/'30/2000 16:19 9259473603 SAVE MT DIABLO PAGE 02 2) Plan 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 good 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, as 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 inajor source of mitigation funding, although public funds specifically dedicated to HCP/NCCP projects can be added to the mix. b) Mitigation fee schedules should include escalation clauses over the life of the Platt to match pace with land values, should be tied in part to specific impacts, and should be linked with acreage/species preservation benchmarks to insure that mitigation efforts and ratios do not fall behind proposed impacts. 7) Private property owners should not be subjected to mitigation costs unless development or infrastructural improvement is proposed. 8) The process for preparation, implementation and oversight of a Plan should include representation and involvement by local 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 Plan 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 PEAR- 11-00 WED a 00 PINI SOUZA REALTY DEG, FAX 1,10, 209 832 8355 P, 2 Contra Costa County CITIZENS LAND ALLIANCE Post Office Box 553 •Byron,CA 94514 • (925)634-5004• President Frai,k Porclra*Vice Preddent hflke Vrrkellelr*RceratirydonraA.GrrcP4er*Tran.+urrr A11rhnel GlrrcrJ, Directors Aflka Aurbroslrro,Tenn Brunrlere,Tirro Bacchini,Bob Chalrnion,Enrico Chrquini, Bub Aaf Porlo,Eugene 11arrfson,Bob Pagenkopp,Pair!Sdablca,Touy Sourl March 112000 RF:1125100 BOARD OF ST PERVISORS HFA IQ�NG REGARDING HABITAT CONSERVATION PLAN IN EA5 `T CONTRA COSTA COUNTY 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 25`i', 2000 Board of Supervisors meeting. As you Know, Contra Costa County Citizens [,and Alliance is a 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 oil the alert as to how these proposnIs could affect our, primary asset, file same way that a>fitany people watch for financial indicators related to their stocks, bonds, and bank accounts. There are some big differences though. One difference is that one never hears a proposal to preserve open space or endangered species by taking people's bank accounts or retirement accounts. Ort 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, ive have more to consider than "buy low-sell high". We have issues lllte 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. PAP,- 1-00 WED 4:01 PM SOUZA REALTY & DEV, FAX NO. 209 832 8355 P. 3 ti IICP IN EA$: C(l TRA COST COUNTY Nlarch 1, 2000 Contra Costa County Citizens Land Alliance has 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 other hand, Contra Costa Citizens land Alliance is categorically against anything that would lock in permanent uses before conservation easements are sold, that would artlticially limit (lie real estate market, or that «ould allow for or encourage the wholesale purchase of huge tracts of land by the government. In addition, we believe that if an HCP does come about, then the Joint Powers Authority should be the lead agency. The County should ultimately be a part of the procoss, as (lie County General Plan might need modification as a result. There should be it separation of authority between an HCP and (lie General Plan, but they obviously would need to be consistent with each other. This HCP proposal seems to be driven by requirements placed on Contra Costa Water District, rather than coming from private landowners and developers looking for a better way to deal with the Endangered Species Act. We still hold out !tope for a revised Endangered Species Act. In the meantime, we will continue to deal with it, and add our input to an HCP 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 effort would be better directed toward more pressing issues. Thank you for your time and attention. • FRANK FEREIRA,PRESIDENT CONTRA COSTA COUNTY CITIZENS LAND Af,,L 1A NCE 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 RWQCB: 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 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 luiown 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 incidentai 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 may be 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. I. 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 constriction of its Segment 2, Phase 1 Project, as well as subsequent segments and phases of the Bypass. USACE, in consultation with USFWS, has issued a permit which requires the Bypass Authority to provide funds 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 fiends 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. hi 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 teens and provisions: 1. Recitals. The recitals contained herein are an integral part of this Agreement. 3 2. Association Formed. 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 Game (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 Creek and Kirker Creek 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 fiom areas outside of the HCPA P1amling Area and not covered by the permits to be issued in conjunction with the HCP/NCCP. 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 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 a 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 HCPA. 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 HCPA funds, the management of HCPA 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. Land 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 by member agency staff, and shall ratify all checks, warrants, and related documents used in the expenditure of HCPA 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 EGC 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 EGC 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 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 EGC; 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 HCPA 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 HCPA 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 Government 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 HCPA 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 I-ICPA may include a Policy Advisory Group, a Technical Advisory Group, and a Financial Advisory Group. Advisory groups formed by the HCPA 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 13. Cost to Prepare the HCP/NCCP. The estimated cost to prepare the East Contra Costa County HCP/NCCP 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 HCPA 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 HCP/NCCP 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. 11 15. Payment of Costs. Contributing member agencies shall deposit the amount specified in the preceding paragraph with the HCPA 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 HCPA 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 firnds by seeking grants and other contributions from public and private sources. The amount of additional funds needed to pay the estimated project cost of$650,000 is $215,000, but $32,500 more is needed to fiend 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 goveniment 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 of NCCPs. 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 HCP/NCCP, 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 for addressing funding shortfalls. The EGC 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 EGC does elect to begin the planning process before all needed funds are raised, the EGC 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 indemiuty. 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 perfonnance of this Agreement. Pursuant to sections 895.4 and 895.6 of the Government Code, each member agency (except the East Bay Regional Park 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 HCFA 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 HCP/NCCP 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 HCP/NCCP. 20. Termination. This Agreement shall terminate when the HCP/NCCP is approved by the U.S. Fish and Wildlife Service, the California Department of Fish and Game, and every other regulatory 4gency 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, Councilmember, 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 EGC 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 detennined 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 (925) 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 Dmc/rlr/JK S ACONSERW OHNWPAG REEN00 16 f.' / I u - . _....: _ :•;.._ . : . .:.: 1. 1 : m ....:.... ... s � G /- 7"• i L f l ' F l ,t nLLIN, � .. PlTill Lj CII ARD co .^"`� -'_�.*'tja"-�— - I) '�— --'-�r - - - ,,f -- - - 1 1);�•.'l` .rte' +�--- p .rJI\. `'ILr+" --rrr=�!^_1 .r+�i Z--...^f�•�.' ^���yy�`- r., i �•i-•_�._i/ �1•• •'\I Ci \.:.. •. ° c: 1 I 'r ff3 E O. KA . rte,...•.- '�` ` 4..` � w� � .'� c � ��� � V F; 4 ,' ori 4`4ti•4 �� -.. \ f. m C N rL ca m 0,. W Q + C ' li. `:�`:..:/'+-: '� .tit:{• � ,•-• `,` i.. J. •+ `� Q co WO 4 --• �ti \" 1 •:% -_.rte}::.i,'. _%1,1 1 •� W = a. a../ .V•:1 7 % '� i 14_.:4 , t - •\ =—.�•� tel•,' —'4 r4. ':4--.�'� �':� _:4.,' _ ,�v:::•�..:ne,.hn...v..tl^.C�i�r:•.:•.rt.t�:x:rn.cn-na:m-u.:....�,,..:.,..,.— ' Y E A.. G Contra TO: BOARD OF SUPERVISORS :4 Costa County FROM: DENNIS M. BARRY, AICP 00 MAR - I PH 4: 54 COMMUNITY DEVELOPMENT DIRECTOR . . . DATE: January 25, 2000 SUBJECT: Report on Proposed East Contra Costa County Habitat Conservation Plan SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATION DECLARE the intent of the Board 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 oil nt 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, 1998, 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 I"l RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COM TTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON January 2 5 , 2000 APPROVED AS RECOMMENDED _ OTHER _xx SEE THE ATTACHED ADDENDUM FOR BOARD ACTION AND VOTE VOT 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: ABSTAI BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: John Ko p i 925) 335-1227 ATTESTED January 25 . 2000 cc: Community evelop ent Department (CDD) PHIL BATCHELOR, CLERK OF County ministrator BOARD OF SUPERVISORS Coun Counsel AND COUNTY ADMINISTRATOR P is Works gricultural Commissioner S:\Conserv\John\hcpjan00.bo.doc B DEPUTY I 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 onto 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.O. Box H2O, Concord; Ken Sanchez, Fish and Wildlife Service, 2800 Cottage Way, #2605, Sacramento; Nick Papadakos, P.O. Box 96, Byron; Frank Pereira, Citizen Land Alliance, 6040 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 . L),2. Contra r Costa TO: BOARD OF SUPERVISORS County FROM: DENNIS M. BARRY, AICP COMMUNITY DEVELOPMENT DIRECTOR DATE: December 7, 1999 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 two,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 RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE APPROVE OTHER SIGNATURE(S): ACTION OF BOARD ON . ,O e f y 99 APPROVED AS RECOMMENDED _X OTHER --T The following persons presented testimony: Carl Wilcox, California Department of Fish & Game; Sheila Larsen, U.S. Fish and Wildlife Service, 3310 EI Camino Ave W-206, Sacramento; Jim Gwerder,,,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 cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK'OF County Administrator BOARD OF SUPERVISORS County Counsel AND COUNTY ADMINISTRATOR Public Works Agricultural Commissioner 5:\,—onserv�Johnlhcpdec99.bo.doc BY , DEPUTY Report on Habitat Conservation Plan December 7, 1999 Page 2 BACKGROUND/REASONS FOR RECOMMENDATIONS On March 18, 1998, the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG) sent a letter to 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. r 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 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 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 entitiestthat 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, 1999 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: $325,000 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. r 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 East Bay Regional Park District will follow Contra Costa Water District. 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Ef3, 69 0•C'- to C 3 t .N O oo r C c � L rn N U , ,r 0 Yo Yo o Rf d O` O v in �p Q. o ' a es� U L O O. _ 0 a X a � YY � > E o a o x x a0 0 - Lo L- O v + co a 2 2a a @ U 6 ocs Q� .-+ ca a �r (n U o `0 0 o Y co m o Ui c a LL t2 0 E e? o o Y Y 0v a) 0 a� C o y w o o LO Ln c@ E o o �Ix� (� O O O 7 O N Ln �t Y N O W O N O O M fK tH to Q U U O > (D o 0 (7a L) ,= -a U .E- Do = U U x � Y Do w ) m m 0_ U o v� L O Y U c UO o X0 0 0 0°' .0 ;O d } @'6 X X f?,O C i ClU Y O O O E 7 0 V a 0. C U (OD O f9 (o L CL c LO = I cn oMy CL O Q U C O fn w-� •) LLv6N9 W OG1 w •C o U c o x oCL o v co m 0 Loo Ln m `. O } C v EOf3 EOR N ti O OO O W, O LL ~ 0 In O O .SCm0 UO C OO O Q ¢h EL f0 0 �+ •O U w 0 N y y LO :° d ca �' y ci O •7 N V y V V o 0 7 t u A` Qa c m rn 0 0 y o = X 3 0 c tm W d V y O v C C o 'a m 0. w 0 ao w a. v o a V _ p d U U E Y O x a�QZ UOu)F- L* TO: BOARD OF SUPERVISORS `� • •••- •F Contra -_ FROM: DENNIS M. BARRY, AICP Costa COMMUNITY DEVELOPMENT DIRECTOR y'4o County �o•. J ,Tri coiiK`� DATE: OCTOBER 27, 1998 SUBJECT: PRESENTATION BY THE U.S. FISH AND WILDLIFE SERVICE AND THE CALIFORNIA DEPARTMENT OF FISH AND GAME ON THE PURPOSE AND NEED FOR DEVELOPING A HABITAT CONSERVATION PLAN AND/OR NATURAL COMMUNITIES CONSERVATION PLAN IN EASTERN CONTRA COSTA COUNTY SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION RECOMMENDATIONS 1 . HEAR presentation by the U.S. Fish and Wildlife Service and the California Department of Fish and Game on the purpose and need for developing a Habitat Conservation Plan ("HCP") and/or a Natural Communities Conservation Plan ("NCCP") in eastern Contra Costa County. 2. ACCEPT background report on the HGP/NCCP issue jointly prepared by the Community Development Department and staff from other local public agencies in eastern Contra Costa County. 3. CONSIDER directing the Community Development Director to: a) continue to collect information on, and analyze the advantages and disadvantages of, developing a HCP/NCCP; b) scope the basic tasks involved in developing a HCP/NCCP for the purpose of framing a later decision by the Board as to participation in any process to develop such a plan; c) identify potential outside funding sources for staff and consultant costs related to developing such a plan. CONTINUED ON ATTACHMENT: X YES SIGNATURE r`� - _�0 RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOARD OMMITTEE APPROVE OTHER SIGNATURE(S): Q�/o� Ze. Z�� L46zi�� ACTION OF BOARD ON October. 27, 1998 APPROVED AS RECOMMENDED X OTHER VOTE OF SUPERVISORS I HEREBY CERTIFY THAT THIS IS A TRUE X UNANIMOUS (ABSENT - - - - ) AND CORRECT COPY OF AN ACTION TAKEN AYES: NOES: AND ENTERED ON THE MINUTES OF THE ABSENT: ABSTAIN: BOARD OF SUPERVISORS ON THE DATE SHOWN. Contact: John Kopchik, CDD (925-335-1227) ATTESTED October 27, 1998 cc: Community Development Department (CDD) PHIL BATCHELOR, CLERK OF County Administrator THE BOARD OF SUPERVISORS County Counsel AN COUNTY ADMINISTRATOR Public Works Director (Avalon, shiu, Tunison) Agricultural Commissioner BY , DEPUTY j:/jkopc/h cpoct98.bo0 Report on HCP/NCCP's October 27, 1998 Page 2 FISCAL IMPACT Performance of tasks under Recommendation 3, above, by the Community Development Department could have a cost of approximately $2,000 to $5,000, but has some relation to existing staff work on the East County Biodiversity Project. Actual development of an HCP/NCCP would require substantial staff time and identification of a source of funding. BACKGROUND/REASONS FOR RECOMMENDATIONS This presentation and staff report are an outcome of a March 18, 1998 letter from the U.S. Fish and Wildlife Service and the California Department of Fish and Game to the Board of Supervisors and elected officials at other local government agencies. On April 21, 1998, the Board of Supervisors referred this letter to the Community Development Director for appropriate action. Complete background information on this item is contained in the attached "HCP/NCCP Staff Report" jointly prepared by the Community Development Department and staff from the cities of Antioch, Brentwood, Clayton, and Pittsburg, the East Bay Regional Park District, and the Contra Costa Water District. As the Board of Supervisors has recently initiated major efforts related to addressing the impacts of growth, to reviewing the Urban Limit Line and the General Plan, and to identifying options for funding acquisition of land or easements for open space, discussion of the HCP/NCCP issue would seem timely. If further consideration of the HCP/NCCP matter is directed, this consideration should evaluate opportunities for integrating the HCP/NCCP with other broad policy initiatives. The HCP/NCCP proposal should not be seen as an alternative to such initiatives since: a) it is intended only to provide state/federal permits and to establish a program for mitigating some environmental impacts; b) it is not intended to directly address other significant issues such as traffic and air quality; and c) would not directly regulate land use. J:\jkopc\hcpoct98.bo HCP/NCCP Staff Report 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 U.S. Fish and Wildlife Service(USFWS) and the California Department of Fish and Game (CDFG) sent a letter to land use planning agencies and special districts in the east Contra Costa County area recommending the development of a regional Habitat Conservation Plan (HCP) and Natural Communities Conservation Plan (NCCP) (letter is attached). Staff at USFWS and CDFG have agreed to follow up on this letter by making presentations to its recipients, naively, the Contra Costa Colulty 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? RCP's and NCCP's are vehicles for obtaining a permit for the incidental take of endangered species. HCP's are authorized under federal law and relate to species and restrictions covered by the Federal Endangered Species Act (FESA). NCCP's relate to the California Endangered Species Act (CESA) and the species and regulations covered by it. The term "Incidental Take Permit" or "ITP" is sometimes used to describe such plans. The first HCP in the U.S. was completed in 1982 to protect endangered species and permit development on San Bruno Mountain in San Francisco. Since then, thousands of individual landowners or developers have completed relatively small-scale RCP's to receive endangered species pen-nits 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. 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 improve the process for complying with endangered species regulations by: 1) providing a permit and improved regulatory certainty to the entire region rather than one landowner at a time; and 2) developing a coordinated, efficient system for permanently protecting endangered species habitat at a scale better suited for biological conservation. In efforts such as these, local government(s) develop and approve the plan,typically via an extensive public process. An implementing authority set up by the local governments(s)holds the ITP and carries out associated requirements,such as the acquisition of habitat. Governor Wilson signed the Natural Communities Conservation Act in 1991 to enable preparation of NCCP's and provide an approximate state equivalent to the federal HCP. Both the Clinton and Wilson administrations have advocated regional HCP'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 RCP's - are approved or are being prepared in California, including completed plans in Orange County and the City of Bakersfield, and plans nearing completion in San Joaquin, Yolo, and Sacramento Counties. 2. East County Background The USFWS and CDFG initiated discussion of the purpose and need for developing a HCP for East County in 1997, requesting meetings with staff from local government and special districts. Both regulatory agencies expressed concern over the loss of habitat in East County for such species as the San Joaquin Kit Fox,Alameda Whipsnake, California Red-Legged Frog, and Bald Eagle, and urged preparation of a conservation plan to better protect these and other listed species and streamline endangered species permitting. The USFWS also discussed the biological opinion provided during approval of the CCWD Los Vaqueros Project which limits CCWD water diversions to 148,000 acre feet per year(af/y), and prevents CCWD from using their full entitlement of 195,000 of/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 govenunent agency staff known as the East County Biodiversity Working Group Task Force,has been reviewing data and analysis regarding biological resources and land use in eastern Contra Costa and Alameda Counties. The collected data could be useful in the preparation of an HCP/NCCP. The Task Force is also seeking to recommend methods for improving the process of conserving biological resources. The HCP concept has been discussed at some length by the Task Force, and presentations have been made to the group, including a principal consultant in the San Joaquin County HCP. Discussions of the advantages and disadvantages of HCP/NCCP's continue, and the Task Force has not yet reached consensus on the issue. A report from the Task Force is expected later this year, and will include discussion both of resource data and policy or process recommendations. 3. Current Process for Complying with Endangered Species Acts Public agencies, developers, and other project sponsors currently address endangered species regulations individually on a project-by-project basis. Potential impacts to endangered species are considered and potentially mitigated within the California Environmental Quality Act (CEQA) process,but in many cases must also be addressed through individual consultation with the USFWS and CDFG. Regardless of regulatory venue, endangered species compliance typically requires: a) thorough field surveys of the site at appropriate times for endangered species; b) negotiations on mitigation, site design, and construction practices; and c) identification and procurement of any needed off-site mitigation and/or dedication of on- site mitigation (e.g., open space easements) The above compliance is performed individually by the 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 pen-nits from the U.S. Army Corps of Engineers (COE), and the Regional Water Quality Control Board (RWQCB). Depending on the project, the U.S. Enviroiunental 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 pen-nit 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 pen-nit 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: "no surprises": HCP's and NCCP's generally guarantee that fees and conditions of the incidental take permit will not deviate from the fees and conditions agreed upon in the 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 «,Bich are not currently listed as endangered or threatened, but have some potential for being listed (i.e., current candidates for listing, etc.). habitat Purchased via conservation easements or fee title from tivillir:g sellers: 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. voluntya participation: Many HCP/NCCP's provide project proponents with the option of not participating in the HCP and instead addressing endangered species on their own as occurred previously. However, since mitigation fees are calculated based on assumed levels of participation, it is important that the plan be financially attractive to ensure that the participation rate matches expectations. bold harmless provisions: Plans can include hold harmless provisions which provide assurances to those landowners adjacent to acquired preserves. financing alternatives: Habitat mitigation can be financed with a combination of fiinding 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, continued grazing 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 HCP/NCCP's where prime agricultural lands are purchased for habitat value(e.g., in Yolo County), current agricultural activities are expected to continue. map-based vs. Process-based plans: Many of the first regional plans developed in southern California were map-based, meaning that areas of development and areas of habitat protection and acquisition were explicitly mapped. More recent plans in the Central Valley have been referred to as process-based plans which do not map development or preserve areas, but simply establish a process for collecting mitigation fees, issuing pen-nits, 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 pen-nit streamlining. Incorporating wetlands permits from the COE and the RWQCB primarily requires the complete involvement of these and other wetlands agencies, such as the EPA, in the planning process. Integrating wetlands permitting 5 and endangered species can be accomplished as the regulations are generally either unrelated or complimentary. A potential difficulty relates to the emphasis on avoiding impacts in wetlands regulations, while endangered species regulations tend to promote mitigation of impacts - although there are some species,particularly plants, that may require full habitat preservation and may not be able to be mitigated. Options for streamlining CEQA compliance and for integrating other types of pen-nits are possible and could be further examined. Since RCP'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. • Determine the ,cographic scope: The staff discussions with resource agencies to date have largely envisioned an East County Plan, dictated by the general physical separation from central Contra Costa County by the Willow Pass ridge extending southeast toward the Kellogg Creek watershed, but also including the Marsh Creek Road and Morgan Territory Road areas. However,plan boundaries are flexible and can be expanded or narrowed by local agencies that participate in preparing the plan. • Develop a Memorandum of Understanding_(MOUI amon local agencies: The proposed MOU should cover participation, funding and management of the HCP/NCCP development process. Typically, the management structure would include a representative from each participating agency. This local agreement should formalize the membership, identify the Lead Agency and assign responsibilities for each agency, identify the boundaries of the plan area, the financing sources and amounts to develop the plan, establish the public process to oversee or advise in the development of the HCP/NCCP, and determine the policy, permitting goals and scope for the plan. • Develop a Memorandum of Agreement (MOA) with the resource agencies: A MOA is recommended to establish the relationship between the local agencies and resources agencies. An important purpose would be to establish how listed species and habitat will be addressed during the interim until an HCP/NCCP is adopted and implemented. Other essential elements would include identifying the planning area, the local participating agencies, the target species to be addressed, the Federal and State permits to be addressed (e.g., FESA Section 10 (a), affected Federal and State land ownerships,other HCP or multi-species protection plans existing 6 or being undertaken in the area(e.g., private party plans), and the anticipated schedule for plan preparation, public review and agency review and adoption. • Select a consultant: A consultant having biological resources expertise and familiarity with developing an HCP/NCCP should be considered. The details of consultant selection, management, financing and staff coordination may be addressed in the local MOU. • Establish a Public Outreach/Involvement Pro r am: 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 goals and establish parameters for the HCP/NCCP: In accordance with the general description of permit and mitigation provided in section 4(How Regional HCP/NCCP's Modify the Process for Endangered Species Compliance), decisions would need to made on the following matters early in the process: (1) selecting the species to covered in the permit and identifying natural communities (habitat, vegetation types), (2) establishing a process for the identification of target species for each community, (3) identifying viable mitigation techniques (land or easement purchase) relating to land use and economic considerations of the area, and (4)determining the overall goals for species protection and recovery, if necessary. Consideration would be given to the appropriateness of a map or policy based 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 CDFG permit approvals up front--replacing project- by-project permitting under state and federal agencies with a locally-administered conservation and permitting program. Additional potential benefits of a regional process include: • raising money to acquire land or easements by lowering permitting and mitigation costs to developers • improved certainty, permit streamlining, and "no surprises" for landowners and developers affected by endangered species regulations • improved protection for biological resources by incorporating regional-level analysis and mitigation to protect ecological processes rather than only declining species • purchase of community open space from willing sellers • removal of obstacles for using federal funds for transportation and other regional projects • potential for lowering local agency costs over the long term • improved regional or sub-regional interagency coordination • offers a mechanism for rewarding landowners for on-going resource stewardship • would allow the CCWD to frilly 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/NCCP could include: • some initial planning costs may shift from individual landowners to participating agencies • political uncertainty, including the possibility that some agencies may not participate, could remove themselves from the process at critical times, or could change their positions on components of the plan • landowner concerns and skepticism • conservation organization concerns and skepticism • significant time and effort involved in preparing such plans • as with all complex planning efforts involving multiple independent bodies, the potential exists for the planning process to fail to accomplish all intended goals • litigation risks Attachment: USFWS/CDFG joint letter dated March 18, 1998 JK/DP 9/30/98 j:\\jkopc\hcpoct98.rep 8 UIL 'W4XXY= US Fish&Wildlife Service CA Dept.of Fish&Game Sacrarmento Fish and Wildlife Office ` P. O.Box 47 3310 El Camino Avenue,Suite 130 Yountville,California 94599 Sacramento,California 95821 (916)979-2710 FAX(916)979-2723 1-1-98-TA-0850 RECEIVED March 18, 1998 Mr. Jim Rogers Director, Board of Supervisors APR 0 2 1998 Clerk of Board of Supervisors CLERK BOARD OF SUPERVISORS - 651 Pine Street CONTRA COSTA CO. Martinez, California 94553 Subject: Purpose and Need for a Habitat Conservation Plan in East Contra Costa County, California Dear Mr. Rogers: On September 16, 1997, representatives of the U.S. Fish and Wildlife Service (Service) and the California Department of Fish and Game (Department) met with representatives from East Contra Costa County (County) local governments and special districts at Contra Costa Water District's (CCWD) office. A number of questions were raised at that meeting regarding development of a Regional Multi-species Habitat Conservation Plan (HCP) and a State- authorized Natural Community Conservation Plan (NCCP). The primary questions posed, from agency staff, centered on the purpose and need for undertaking an HCP/NCCP. It is our intent, through this letter, to further communicate our perspective on the regulatory advantages to the County of preparing an HCP/NCCP, the mutual benefits gained by protecting the County's sensitive and unique environmental resources, and reasons why we encourage the County and/or Cities to develop a HCP/NCCP in close cooperation with the Service and the Department. The Service and the Department are sending copies of this letter to policy makers and staff at a number of agencies, as indicated in the attached list of recipients. Endangered Species in East Contra Costa County: The diverse habitat types, found in East Contra Costa County, provide habitat for numerous state and federally listed species. The federally threatened Alameda whipsnake (Mastidophis lateralis euryxanthus) may be found in the hillside chaparral. The federally threatened vernal pool fairy shrimp (Branchinecia lynchi) may be found in vernal pools associated with grasslands. The California tiger salamander (Ambystoma californiense), a Federal candidate and State threatened species,may also be found in vernal pools or stockponds during the winter months, and in the associated grasslands during the remainder of the year. These grasslands are also utilized by the federally endangered San Joaquin kit fox (Vulpes macrotis mutica). Riparian areas, wetlands, Mr. Jim Rogers 2 and stockponds may also support the federally threatened and State species of concern California red-legged frog(Rana aurora draytonii). These and other listed species have been seriously impacted by past development in the County. In addition, the Service is aware of numerous current projects not in compliance with the Endangered Species Act of 1973, as amended (Act), and have unauthorized "take", as defined below,of listed species: Endangered SWcies Regulations and Alternative Means For Compliance: Section 9 and the implementing regulations in section 4(d) of the Act, prohibit the "take" of any. fish or wildlife species federally listed as endangered or threatened, unless specifically authorized by the Service (or National Marine Fisheries Service for anadromous fish and marine mammals). As defined in the Act, take means " . . . to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct." "Harm" has been further defined to include habitat destruction, when it kills or injures a listed species by interfering with essential behavioral patterns such as breeding, foraging, or resting. Take, incidental to an otherwise lawful activity (referred to as "incidental take"), may be authorized by one of tuwo procedures: If a Federal agency is involved with permitting, funding, or carrying out of the project, then initiation of formal consultation between that agency and the Service, pursuant to . section 7 of the Act, is required if it is determined the proposed project may affect a federally listed species. Such consultation results in a biological opinion addressing the anticipated effects of the project to the listed species and may authorize a limited level of incidental take. Non-Federal entities, engaging in otherwise lawful activities that may result in "take" of listed species, should obtain an "incidental take permit" pursuant to section 10(a)(1)(B) of the Act. To obtain an incidental take permit, the per-nit applicant must develop an HCP and submit it to the Service. The HCP must specify (among other things) the impacts likely to result from the taking, and measures the permit applicant will implement to minimize and mitigate such impacts. An HCP may also include conservation measures for federally proposed and candidate species. State listed species, and other species not listed under the Act at the time an HCP is developed or a permit application is submitted may also be included. Including unlisted species in an HCP can benefit the permittee, through coverage of such species under the permit, thereby ensuring the terms of the HCP will not change over time with subsequent listings. In the past, most HCPs were completed for single landowners and relatively small areas. However, multi-species HCPs completed by local governments and covering thousands or even millions of acres are becoming more common. For example, such regional HCPs are underway or complete in San Joaquin, Sacramento, and Yolo counties. Mr. Jim Rogers 3 The California Endangered Species Act (CESA) prohibits take of listed threatened and endangered species and candidate species, formally proposed for listing by the California Fish and Game Commission. CESA was recently amended and is similar to the Act. The Department can authorize incidental take of listed species with appropriate measures to assure impacts are fully mitigated. The Department is currently drafting regulations to implement requirements of the amended CESA. Separate authority is granted to the Department to authorize take through the NCCP. The NCCP approaches permitting from a large scale habitat and multi-species conservation perspective. An NCCP is similar to a multi-species HCP in that it can provide coverage for both listed and non-listed species that may be listed in the future. This coverage is accomplished in the context of an implementable plan, assuring the conservation of the covered species:and their habitat within the coverage area. The NCCP provides a mechanism for the State to provide consistency in mitigation requirements and to streamline permitting for projects consistent with the NCCP. Development of the NCCP would occur concurrently with the HCP and requirements would be similar to those required for compliance with the Act. Initial information feasibly used in the formulation of an NCCP for the area in question, has been developed through the East County Biodiversity Study. Additionally, a possible stakeholder group, which could provide valuable input into development of an HCP/NCCP, has been assembled through the East County Biodiversity Study working group. How Regional HCPs/NCCPs Work: Regional HCPs/NCCPs establish a coordinated process for permitting and mitigating the incidental take of endangered species. Developers seeking coverage under the HCP/NCCP typically pay a mitigation fee and receive an incidental take authorization or permit for their project, consistent with the terms of the HCP/NCCP. Developers are then typically relieved of the expense of endangered species surveys and of individually securing mitigation. Funds collected via these fees, sometimes augmented with other funding sources, are pooled and used to purchase habitat from willing sellers. Such coordinated mitigation generally benefits species far more than project by project mitigation since it increases flexibility and enables purchase of connected and biologically rich blocks of habitat. Many plans purchase habitat with a combination of conservation easements and fee title transactions. Property owners who sell conservation easements are typically able to continue ranching or farming their land as before. Advantages of Regional HCPs/NCCPs: Currently, landowners may individually develop HCPs for federally listed species on their property. Likewise, CESA allows for incidental take on a"project-by-project"basis through issuance of a 2081 permit. While permitting requirements are generally consistent for the same species, requirements may vary for different species. Therefore, when an applicant must mitigate for more than one species, different requirements for each species can make it difficult to develop appropriate and cost-effective mitigation. The process of obtaining individual State and Federal permits can be time consuming due to the sheer number of individual projects received by agencies and staffing limitations of the agencies involved. In addition, new State regulations Mr. Jim Rogers 4 require the Department to comply with the California Environmental Quality Act prior to issuing 2081 permits,possibly adding further delays resulting from the public review time. The development of a regional HCP and/or NCCP will alleviate these problems, and provide certainty for landowners and developers in planning and regulatory expectations. Another important catalyst for development of an HCP/NCCP results from development of the CCWD's Los Vaqueros Reservoir Project (Los Vaqueros). In 1993, through the regulatory mechanism of section 7 of the Act, CCWD was designated the non-Federal representative for the U.S. Bureau of Reclamation,to act on their behalf in addressing endangered species issues for Los Vaqueros. The Service issued five biological opinions (Ref. Nos. 1-1-92-F-48; 1-1-93-F-35; 1-1-95-F-117; 1-1-96-F-110; and 1-96-F-151) addressing the impacts of 'Los Vaqueros on federally listed species. In the delta smelt opinion(1-1-93-F-35), the Service authorized incidental take of delta smelt based on an annual maximum water delivery of 148,000 acre feet by CCWD to its customers. The Service understands CCWD is approaching this maximum delivery amount. CCWD will require incidental take coverage from the Service to exceed this amount. To obtain incidental take coverage for additional water deliveries over 148,000 acre feet, CCWD, through the U.S. Bureau of Reclamation, must reinitiate consultation with the Service to address impacts on listed species. Future consultation on additional water deliveries must address direct, indirect and cumulative (i.e., growth inducing) impacts of the project. This means the U.S. Bureau of Reclamation must consider direct impacts to aquatic species such as delta smelt, and also address impacts on listed upland species (i.e., San Joaquin kit fox), from increased urban development resulting from increased water deliveries. Therefore, CCWD cannot proceed to deliver additional water to their customers until measures to minimize and mitigate the impacts on listed aquatic and upland species have been developed and evaluated through section 7 consultation process. The section 7 process would be greatly facilitated if CCWD and local agencies within CCWD's service area obtained a section 10(a)(1)(B) permit through development of an HCP and NCCP process for Federal and state listed species. This would allow greater input from local agencies and affected stakeholders in developing a plan to . address species, and the section 7 consultation could adopt the approved HCP/NCCP. As stated previously,the cost and procedural requirements of individual applicants far exceed what could otherwise be accomplished through a regional HCP/NCCP planning effort. In addition, increasing the planning area to include many landowners activities, under auspices of permit holders that are local goverrunent agencies, can spread the cost and allow for equitable and shared responsibility in meeting legal requirements under CESA and the Act. There are many benefits of such a region and multi-species HCP/NCCP to the County and its residents. A regional HCP/NCCP would. (1) maximize flexibility and increase options in developing mitigation programs; (2) reduce uncoordinated decision making which may result in incremental habitat loss for both listed and non-listed species; (3) reduce the economic and logistic burden of environmental compliance on individual landowners and streamline the responsibilities of local jurisdictions; (4) reward interested private landowners economically for resources on their property; (5)decrease permitting agencies' project review time and facilitate timely progression of projects; (6) bring a broad range of activities under the permit's legal protection; (7) allow Mr. Jun Rogers 5 input into the process by affected stakeholders; and (8) help maintain a quality environment for the benefit of the County's residents by setting aside areas for open space and other recreational uses. Two of the largest benefits a regional HCP/NCCP offers local jurisdictions are early identification of significant resource issues, and regulatory certainty and predictability in planning for future urban growth and development. Potential Next Steps: The geographic scope and species to be covered under an HCP/NCCP are flexible and, ultimately, are primarily the decisions of the permit applicant. The Service and the Department encourage local governments to undertake regional and multi-species HCPs/NCCPs because of their effectiveness in guiding long-term planning for species conservation and reducing unforeseen resource conflicts. Funding for developing an HCP/NCCP can potentially be obtained through several sources. Such funds are often generated by local interests. However, the Service is aware of another regional planning effort that applied for, and received funds from, the National Fish and Wildlife Foundation with assistance from a local transportation agency and local jurisdictions. Although monies from CALFED (Category 3 funding) cannot be used for the HCP/NCCP development process, these monies could potentially be requested for acquisition of mitigation lands. Although no guarantees of obtaining these funds can be made, the Service and the Department would willingly provide letters of support. Section 6 of the Act allows for monies to be distributed, in coordination with the Service and the Department, to supplement funding of approved HCPs/NCCPS, if those efforts contribute to recovery of listed species. The draft Recovery Plan for Upland Species of the San Joaquin Valley, California (1997) identifies portions of eastern Contra Costa County as a target area for protection of habitat for the San Joaquin kit fox. In addition, East Contra Costa County is important to recovery of the California red-legged frog because it is located within the Central Valley Hydrographic Basin recovery unit, as described in the final rule (61 FR 25813 ). If the HCP/NCCP contributes to recovery of the San Joaquin kit fox, California red-legged frog or other federally listed species, applications for funds as described in section 6 of the Act could be submitted. We appreciate the cities', County's and CCWD's desire to know more about the HCP/NCCP process and acknowledge that Contra Costa County already undertaken significant strides in endangered species conservation. The on-going East Alazneda/Contra Costa Biodiversity Study has proven to be a useful and effective forum for developing partnerships and shared interests between stakeholders. It has also generated a wealth of biological data which would greatly facilitate the development of an HCP/NCCP. We are fully committed to assisting County governments with the HCP/NCCP process. Our role in this process would be to provide advice and recommendations on technical biological issues and regulatory requirements and standards, to serve as a member of the planning committee, to help facilitate agreement between stakeholders and, ultimately, to issue the appropriate permits. Mr. Jim Rogers 6 Initial decisions related to cost of development and implementation, size of the planning area, and species to be covered, are extremely important and should be the focus of any subsequent meetings. We would also like to extend an offer to present an informational workshop on•the HCP/NCCP process for various Board and Council members during the spring of 1998. We look forward to further discussions and the opportunity to present the workshop to you. Should you have questions regarding this letter or desire further assistance, please contact Ms. Cay Goude of the Service's Endangered Species Division at(916) 979-2725 or Carl Wilcox of the Department's Ecological Services at (707) 944-5525. Sincerely, • Bayne S. White Brian Hunter Field Supervisor Regional Manager cc: Contra Costa County, Martinez, CA (Mr. Dennis Barry, Ms. Roberta Goulart, Mr . Val A 1 e x e f f and Mr. John Kopchick) Ij .� ^ CONTRA COSTA COUNTY FARM BUREAU Affiliated with the TELEPHONE(925)672-5115 CALIFORNIA FARM BUREAU FEDERATION FAX(925)672-8382 and the 5554 CLAYTON ROAD AMERICAN FARM BUREAU FEDERATION CONCORD,CALIFRNIA 7 Tuesday, July 17, 2001 U L 1 7 ZUU1 Dear Board of Supervisors: LJ --. iA 60. The Contra Costa County Farm Bureau is opposed to the Habitat Conservation Plan, until further . information is provided and reviewed. Farm Bureau would like to know how the plan is going to affect the agriculture industry in Contra Costa County. Our position is that the plan be reviewed by the county's Agriculture Advisory Task Force to determine the direct affects it will have on landowners. Farm Bureau policy on HCP's is the following: Habitat conservation plans should be voluntary, incentive-based measures. Private property must not be considered for inclusion in an HCP reserve area without: prior written notice to each affected property owner; and written permission from the landowners. Biological surveys should not be conducted on private lands without written permission of the landowner. HCP preserves must be self-contained with no exterior buffers with indemnification provisions for adjacent landowners if listed species migrate onto their properties. Government agencies must meet strict deadlines in the development of recovery plans, HCP's and the designation of critical habitat. Throughout this process, affected farmers and ranchers should be consulted. If additional species are listed or an HCP fails, the participants should not be subject to additional requirements. When government lands are used for HCP purposes,the goals of the HCP must be consistent with traditional multiple use activities. The development and implementation of HCP's must not interfere with the protection of private property, public health or safety. We urge the Board of Supervisors to postpone voting on this plan until it can be reviewed further by the Agriculture Advisory Task Force and the Farm Bureau.Board of Directors. Sincerely, a<. JaI ew4kti Presnt ntra Costa County Farm Bureau REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. G� ) ) // c Name: C 1�- 69 Phone:C7�`-�/ 6 /?6 71 f�f^ -7 Address: d 9 City: ! ,L I I am speaking for myself or organization: 13 y lZo�r/ rn C (name of organization) CHECK ONE: I wish to speak on Agenda Item # Date: 7 _0 My comments will be: general for against I wish to speak on the subject of __7y I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation' if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. 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Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: �� 1 w ti l C�x Phone: -707'4q q -SEZS Address: y , ©���� l City: l&u/AJ I am speaking for myself or organization: U. V�t5l �-&ff e (name of organization) CHECK ONE: L/ I wish to speak on Agenda Item # Date: 7//7/0) My comments will be: general for _� against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: II/►'l �-w�r���L f�� Phone: qts-�37 ' sba� Address: P� '80x City: BY I am speaking for myself or organization: C (name of organization) CHECK ONE: n I wish to speak on Agenda Item # A Y Date: 7' 17 --1:1 � My comments will be: general for against I wish to speak on the subject of �(C P I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered.. 2. You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) (� Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: Phone: Address: o BUX //2c, City: Co,.,c&o,210 I am speaking for myself or organization: �.��� fcsr,:.., fP /45.1'aC� (name of organization) CHECK ONE: I wish to speak on Agenda Item # �y Date: Uf My comments will be: general against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board. to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3 . Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . KZWUZ5T TO BFEAK FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum bKQ address' the Board. Name: &e ✓� [ Phone: 9Z�= ZZd'��lZL Address iGe!5) /J/X61city:���'I�// I am speaking for myself or organization: L A �9ll•4"'vice (name of organization) CHECK ONE: I wish to speak on Agenda Item # a—+— Date: My comments will be: general for against I wish to speak on -the- subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone. at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. Name: 770�;7 Phone: P-5 7 Address: AS/a /Il 6, �c�� city: v�I-XIW7t- CreeK Addr y I am speaking for myself or organization: C-C. Ia."m I u-edk, (name of organization) CHECK ONE: I wish to speak on Agenda Item # ----� Date: 7A 17-al My comments will be: general for - against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak. into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4 . 1 Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) . REQUEST TO SPEAR FORM D (THREE (3) MINUTE LIMIT) Complete this form and place it in the box near the speakers' rostrum before addressing the Board. eX oA%� Otfekkzr- C� t Name: NTWPhone: - vr► icJ Address: City: caea-�k I am speaking for myself or organization: (name of organization) CHECK ONE: I wish to speak on Agenda Item # Date: . Jam . My comments will be: general for against I wish to speak on the subject of I do not wish to speak but leave these comments for the Board to consider: SPEAKERS 1 1. Deposit the "Request to Speak" form (on the reverse side) in the box next to the speaker's microphone before your agenda item is to be considered. 2 . You will be called on to make your presentation. Please speak into the microphone at the podium. 3. Begin by stating your name and address and whether you are speaking for yourself or as the representative of an organization. 4. Give the Clerk a copy of your presentation or support documentation if available before speaking. 5. Limit your presentation to three minutes. Avoid repeating comments made by previous speakers. (The Chair may limit length of presentations so all persons may be heard) .