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Stephens' Kangaroo Rat Habitat Conservation Plan

 

Appendix B

Overview of Federal and State Wildlife and Habitat Conservation Laws

  1. Wildlife and Habitat
    1. Federal Endangered Species Act
      1. Section 4
      2. Section 9
      3. Section 10(a)
      4. Section 7
      5. Section 6
      6. Proposed Special Rule for the Coastal California Gnatcatcher
    2. Migratory Bird Treaty Act
    3. Pish and Wildlife Coordination Act
    4. Section 404 of the Clean Water Act
  2. California Wildlife and Habitat Conservation Laws
    1. California Endangered Species Act
      1. Sections 2070-2079
      2. Section 2080
      3. Sections 2081 and 2053
      4. Sections 2090-2097
    2. Native Plant Protection Act
    3. Natural Community Conservation Planning Act
      1. Purpose and Focus
      2. Subregional NCCPs and Ongoing Multi-Species Plans
      3. Draft Conservation Guidelines and Interim Strategy
    4. Streambed Alteration Laws
  3. Federal and State Environmental Documentation Requirements
    1. National Environmental Policy Act
    2. California Environmental Quality Act

This appendix presents an overview of the full range of federal and state laws that pertain to wildfire and habitat conservation in Riverside County and elsewhere. These laws are organized under three headings:

  • Federal wildlife and habitat conservation laws,
  • California wildlife and habitat conservation laws, and
  • Federal and state environmental documentation requirements.

A. Wildlife and Habitat Conservation Laws

Federal wildlife and habitat conservation laws include the federal Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), Fish and Wildlife Coordination Act, and Section 404 of the Clean Water Act.

1. Federal Endangered Species Act

Five sections of the federal ESA are relevant to the preparation, approval, and implementation of plans to conserve wildlife habitat and protect individual species. These are:

  • Section 4, which covers the listing process, designation of critical habitat, issuance of special rules for the protection of threatened species, and preparation of recovery plans;
  • Section 9, which prohibits the import, export, take, possession, transport, receipt, or sale of listed species;
  • Section 10(a), which authorizes the U.S. Fish and Wildlife Service (USFWS) to issue permits for incidental take of listed species and to approve HCP's for listed unlisted species;
  • Section 7, which includes provisions for the authorization of incidental take resulting from federal actions; and
  • Section 6, which authorizes cooperative agreements between USFWS and states and includes provisions for the conservation of federally listed plants.
a. Section 4

Section 4 of the federal ESA stipulates that a species may be determined to be endangered or threatened based on any one of five factors:

  1. Present or threatened destruction, modification, or curtailment of its habitat or range;
  2. Over utilization for commercial, recreational, scientific, or educational purposes;
  3. Disease or predation;
  4. The inadequacy of existing regulatory mechanisms; and
  5. Other natural or manmade factors affecting its continued existence.

Section 4 further stipulates the steps by which species may be proposed for listing and the time frame in which decisions must be made. It also provides that critical habitat for the species may be designated concurrently with the decision to list the species, and that a plan for the conservation and survival of the species (recovery plan) be prepared by USFWS. Section 4 also provides for the issuance of special regulations for the protection of federally-listed threatened species in any State that has entered into a cooperative agreement with USFWS pursuant to Section 6 of the ESA.

b. Section 9

Section 9 of the federal ESA prohibits the taking of species listed by USFWS as threatened or endangered. As defined in the ESA, "taking" means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or to attempt to engage in such conduct." "Harass" and "harm" are further defined in federal regulations and case law as follows:

"Harass" means an intentional or negligent act or omission which creates the likelihood of injuring wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding or sheltering" (50 CFR 17.3).

"Harm" means an act which actually kills or injures wildlife. Such acts may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering" (50 CFR 17.3).

With respect to endangered plants, the ESA makes it unlawful to:

  1. Remove and reduce to possession any such species from areas under federal jurisdiction;
  2. Maliciously damage or destroy any such species on such areas; or
  3. Remove, cut, dig up, or damage or destroy any such species on any other area in knowing violation of any law or regulation in any state or in the course of any violation of a state criminal trespass law.

ESA protection for threatened plants is substantially the same as that given to endangered plants, except that the seeds of threatened plants may be cultivated.

c. Section 10(a)

In recognition that take cannot always be avoided. Section 10(a) of the ESA includes provisions for takings that are incidental to, but not the purpose of, otherwise lawful activities. Similar provisions also are found in Section 7 for actions by federal agencies.

Under Section 10(a)(1)(B), USFWS (via powers delegated by the Secretary of the Interior) is authorized to approve "incidental take" permits provided that the applicant has met certain conditions. As described in the Code of Federal Regulations (CFR) and draft conservation planning guidelines prepared by USFWS, the application for such permits must be submitted on a specific form and must be accompanied by an HCP that contains the following information:

  1. The impact that will likely result from the proposed taking of the species;
  2. Steps the applicant will take to monitor, minimize, and mitigate such impacts;
  3. The level and source of funding available to implement such steps;
  4. Procedures that will be used to deal with unforeseen circumstances;
  5. The names of the responsible party or parties;
  6. Alternatives to the taking and the reasons why they were not pursued; and
  7. Other measures that may be required by USFWS as necessary or appropriate.

The application is submitted to the Regional Director of USFWS who, after a public comment period, must issue the permit if it is found that:

  1. The taking will be incidental to an otherwise lawful activity;
  2. The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of the taking;
  3. The applicant will ensure that adequate funding for the conservation plan and procedures to deal with unforeseen circumstances will be provided;
  4. The taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild;
  5. The applicant will ensure that other measures (if any) that USFWS may require as being necessary or appropriate will be met; and
  6. USFWS is assured that the conservation plan will be implemented (USFWS's practice has been to require an "implementing agreement" signed by the permittee and USFWS in which the actions identified in the HCP are presented in the form of a legal contract.)

Prior to making the decision, USFWS must conduct an internal consultation in accordance with Section 7 of the ESA. USFWS also must comply with the environmental review requirements of the National Environmental Policy Act (NEPA), which require that the potential effects of a major action be analyzed in a written statement.

Although phrased in terms of criteria for issuance of incidental take permits. Section 10(a)(1)(B) also was intended by Congress to authorize USFWS's approval of HCP's for unlisted as well as listed species. Moreover, if the HCP treats unlisted species as if it were already listed, additional mitigation would not be required within the area covered by the HCP upon the listing of that species. As stated by the House Conference Committee when Section 10(a)(1)(B) was added to the ESA in 1982:

The committee intends that the Secretary [of the Interior] may utilize this provision to approve conservation plans which provide long-term commitments regarding the conservation of listed as well as unlisted species and long-term assurances to the proponent of the conservation plan that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in accordance with the terms of the plan. In the event that an unlisted species addressed in an approved conservation plan is subsequently listed pursuant to the Act, no further mitigation requirements should be imposed if the conservation plan addressed the conservation of the species and its habitat as if the species were listed pursuant to the Act. (House of Representatives Conference Report No. 97-835, 97th Congress, 2d Session, p. 30).

d. Section 7

Section 7 of the ESA requires all federal agencies to consult with USFWS on actions involving listed species and requires USFWS to conduct internal consultations regarding the effects of its own actions on such species. It also requires USFWS to use its program to further the objectives of the ESA. A Section 7 consultation begins with a biological assessment that examines the potential effects of the action on the species in question and concludes with a written statement by USFWS staling whether the action would jeopardize a listed or proposed species or adversely affect critical habitat. If USFWS finds that the species would not be jeopardized, the written statement includes authorization for incidental take.

e. Section 6

Section 6 of the ESA authorizes USFWS to enter into cooperative agreement with States, and Section 6(c)(2) deals explicitly with conservation programs for listed plants. As stated in the ESA:

In order for a State program to be deemed an adequate and active program ... the Secretary must find, and annually thereafter reconfirm such finding, that under the State program

  1. (A) Authority resides in the State agency to conserve resident species of plants determined by the State agency or the Secretary to be endangered or threatened;
  2. (B) the State agency has established acceptable conservation programs, consistent with the purposes and policies of this IESAI, for all resident species of plants in the State which are deemed by the Secretary to be endangered or threatened, and has furnished a copy of such plan and program, together with all pertinent details, information, and date requested to the Secretary;
  3. (C) the State agency is authorized to conduct investigations to determine the status and requirements for survival of resident species of plants; and
  4. (D) provision is made for public participation in designating resident species of plants as endangered or threatened...

Such a program has been authorized in California based on the state ESA, the Native Plant Protection Act, and California Native Desert Plants Act.

f. Proposed Special Rule for the Coastal California Gnatcatcher

The proposed special rule for the gnatcatcher was published in the Federal Register on March 30, 1993, and reads in its entirety as follows:

  1. (1) Except as noted in paragraphs (b)(2) and (3) of this section, all prohibitions of ยง17.31 (a) and (b) shall apply to the coastal California gnatcatcher.
  2. (2) Incidental take of the coastal California gnatcatcher is permitted if the take results from activities conducted in accordance with a Natural Community Conservation Plan for the protection of coastal sage scrub habitat, provided that:
    1. (i) The Natural Community Conservation Plan has been prepared, approved, and implemented pursuant to California Fish and Game Code sections 2800-2840; and
    2. (ii) The Fish and Wildlife service has issued written concurrence that the Natural Community Conservation Plan also meets the standards set forth in 50 CFR 17.32(b)(2). The Service shall issue its concurrence pursuant to the provisions of the Memorandum of Understanding dated December 4, 1991, between the California Department of Fish and Game and the Service regarding coastal sage scrub natural community conservation planning in southern California.
  3. (3) During the period that a Natural Community Conservation Plan referred to in paragraph (b)(2) of this section is being prepared, incidental take of the coastal California gnatcatcher is permitted if the take results from activities conducted pursuant to guidelines prepared by the Scientific Review Panel for this program and adopted by the California Department of Fish and game pursuant to California Fish and Game Code section 2825, provided that:
    1. (i) The take occurs in an area within a local governmental jurisdiction that is enrolled in the natural community conservation planning process;
    2. (ii) The Fish and Wildlife Service has issued written concurrence that the guidelines meet the standards set forth in 50 CFR 17.32(b)(2). The Service shall issue its concurrence pursuant to the provisions of the Memorandum of Understanding dated December 4, 1991, between the California Department of Fish and Game and the Service regarding coastal sage scrub natural community conservation planning in southern California; and
    3. (iii) The total loss of coastal sage scrub habitat resulting from activities covered by this paragraph does not exceed the restrictions defined by the Scientific Review Panel/California Department of Fish and Game guidelines.
  4. (4) If the Fish and Wildlife Service has concurred in the guidelines referred to in paragraph (b)(3) of this section, the Service shall review the guidelines every six months to determine whether they continue to meet the standards set forth in 50 CFR 17.32(b)(2). If the Service determines the guidelines no longer meet those standards, the Service shall consult with the California Department of Fish and Game pursuant to the Memorandum of Understanding dated December 4, 1991, to seek appropriate modification of the guidelines, and shall revoke its concurrence under paragraph (b)(3) of this section if appropriate modification of the guidelines does not occur.
2. Migratory Bird Treaty Act

The MBTA makes it unlawful to pursue, hunt, capture, kill, or possess or attempt to do the same to any migratory bird or part, nest, or egg of such bird listed in wildlife protection treaties between the United States and Great Britain, United Mexican States, Japan, and the Union of Soviet States. As with the federal ESA, the act also authorizes the Secretary of the Interior to issue permits for take. The procedures for securing such permits are found in Title 50 of the CFR, together with a list of the migratory birds covered by the act.

3. Fish and Wildlife Coordination Act

The Fish and Wildlife Coordination Act authorizes the Secretary of the Interior to:

  1. 1. Provide assistance to and cooperate with federal, state, and public or private agencies and organizations:
    1. (a) in the development, protection, rearing, and stocking of all species of wildlife, resources thereof, and their habitat,
    2. (b) in controlling losses of the same from disease or other causes,
    3. (c) in minimizing damages from overabundant species,
    4. (d) in providing public shooting and fishing areas, including easements across public lands for access thereto, and
    5. (e) in carrying out other measures necessary to effectuate the purposes of said sections;
  2. 2. Make surveys and investigations of the wildlife of the public domain, including lands and waters or interests therein acquired or controlled by any agency of the United States; and
  3. 3. Accept donations of land and contributions of funds in furtherance of the purposes of said sections.

The Act's stated purpose is to:

  1. 1. Recognize the contribution of the wildlife resources to the nation, the increasing public interest and significance thereof due to the expansion of the national economy and other factors; and
  2. 2. Provide that wildlife conservation receive equal consideration and be coordinated with other features of water-resource development programs.

Specifically, the Act requires that, except for water impoundment projects less than 10 acres in size and federal projects on federal lands, all federal agencies must consult with USFWS and the head of the state wildlife agency with jurisdiction over the project area with a view to preventing loss of and damage to and providing for the development and improvement of wildlife resources. The reports and recommendations from such consultations must be included in any documents prepared as part of the approval process for the project and must be considered prior to approval being given. The Act further authorizes federal agencies responsible for the construction or operation of water-control facilities to modify or add to the structures and operations of such facilities and acquire lands in order to accommodate the wildlife conservation measures.

4. Section 404 of the Clean Water Act

Section 404 of the Clean Water Act, which is administered by the U.S. Army Corps of Engineers (COE), regulates the discharge of dredged and/or fill material into the waters of the United States. The term "waters of the United States" generally defines COE's jurisdiction and is defined at 33 CFR Part 328 as:

  1. 1. All navigable waters (including waters subject to the ebb and flow of the tide),
  2. 2. All interstate waters and wetlands,
  3. 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce,
  4. 4. All impoundments of waters mentioned above,
  5. 5. All tributaries to waters mentioned above,
  6. 6. The territorial seas, and
  7. 7. All wetlands adjacent to waters mentioned above.

Wetlands are further defined at 33 CFR 328.3(b) as:

Those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support ... a prevalence of vegetation typically adapted for life in saturated soil conditions.

The vegetation, soils, and hydrology of a wetland is further characterized in the manual used by COE as normally meeting the following three criteria:

More than 50 percent of the dominant plant species at the site must be typical of wetlands (i.e., rated as facultative or wetter in the National List of Plant Species that Occur in Wetlands);

Soils must exhibit physical and/or chemical characteristics indicative of permanent or periodic saturation (e.g., a gleyed color, or mottled with a matrix of low chroma indicating a relatively consistent fluctuation between aerobic and anaerobic conditions); and

Hydrologic characteristics must indicate that the ground is saturated to within 12 inches of the surface for at least five percent of the growing season during a normal rainfall year.

Certain activities in wetlands or waters of the United States are automatically authorized by COE or granted a nationwide permit, provided they meet specific conditions. All impacts of 10 acres or more and aggregate wetland impacts greater than 1 acre require an individual permit. The permitting process entails consultation with federal agencies, public notice, and preparation of a project alternatives analysis in accordance with guidelines issued by the U.S. Environmental Protection Agency (EPA). EPA's guidelines are used as the primary environmental criteria for evaluating the necessity of the proposed activity and for determining the least damaging feasible alternative appropriate mitigation for unavoidable impacts. In accordance with the provisions of Section 404, Fish and Wildlife Coordination Act, and, if federally listed species are present, under Section 7 of the ESA COE also is required to consult with USFWS prior to acting on a permit.

B. California Wildlife and Habitat Conservation Laws

State wildlife and habitat conservation laws include the California ESA, Native Plant Protection Act, NCCP Act, and streambed alteration laws.

1. California Endangered Species Act

The California ESA is part of the Fish and Game Code. Key sections include:

  • Sections 2070-2079, which cover the state listing process;
  • Section 2080, which prohibits the taking, importation, or sale of state listed species;
  • Sections 2081 and 2053, which authorize California Department of Fish and Game (CDFG) to allow take that is for scientific, educational, or management purposes through memoranda of understanding (MOD'S) and specify state policy regarding projects with impacts to listed species; and
  • Sections 2090-2097, which cover the state consultation process.
a. Sections 2070-2079

Sections 2070-2079 of the California ESA specify the process by which species are proposed for listing as threatened or endangered or as candidates for such listing. Unlike the federal law, however, the state law does not specify factors that could trigger a listing. Instead, state law requires the CDFG to recommend and the Fish and Game Commission to adopt criteria for determining a species' status.

b. Section 2080

Similar to Section 9 of the federal ESA, Section 2080 of the state law prohibits the import, export, take, possession, purchase, or sale of listed species unless explicitly authorized by other provisions of the law. However, the state restrictions on take differ from those under federal law in two key ways:

  1. 1. Take is defined simply as "to hunt, pursue, capture, or kill or attempt the same;" the terms "harm" or "harass" are not used; and
  2. 2. Take of species designated as candidates for state listing is prohibited for the one-year period during which the final listing decision is made (federal law does not prohibit the taking of species proposed for federal listing).
c. Sections 2081 and 2053

Section 2081 authorizes CDFG to enter into memoranda of understanding (MOD'S) with "individuals, public agencies, universities, zoological gardens, and scientific or educational institutions, to import, export, take or possess species for scientific, educational or management purposes." In general, a 2081 MOD is similar to an implementing agreement for a 10(a) permit in that it is a legal contract with CDFG regarding implementation of conservation and mitigation measures. A "management agreement" typically is prepared in which the parties seeking the authorization for take provide CDPG with the same information required for consultation under Sections 2090-2097 (see below). The state ESA, however, does not specify the contents of or approval criteria for such agreements other than the requirement that the agreements can be approved only if they comply with Section 2053.

Section 2053 stipulates that:

"...it is the policy of the state that state agencies should not approve projects as proposed which would jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat essential to the continued existence of those species, if there are reasonable and prudent alternatives available consistent with conserving the species or its habitats which would prevent jeopardy."

Furthermore, it is the policy of the state and the intent of the Legislature that reasonable and prudent alternatives shall be developed by the Department (CDFG), together with the project proponent, and the state lead agency, consistent with conserving the species, while at the same time maintaining the project purpose to the greatest extent possible.

If the species also is federally listed, CDFG's practice has been to accept an HCP prepared for a federal 10(a) permit as the basis for the MOD if it contains information that is sufficient for purposes of Section 2081 and 2053. Following review by both CDFG and the State Legal Advisors Office, the MOU is signed by the Director of CDFG.

d. Sections 2090-2097

Sections 2090-2097 of the state ESA require state lead agencies to consult with CDFG on projects with potential impacts on state-listed species and incorporate by reference Section 21104.2 of CEQA. (CEQA requires state lead agencies to consult with and obtain written findings from CDFG when preparing an environmental impact report [EIR] for a project that affects a state listed species.) These sections also require CDFG to coordinate consultations with USFWS for actions involving federally as well as state listed species, and whenever possible, to adopt the federal biological opinion as its findings in such consultations.

To make its written findings on projects involving listed species, CDFG requires that the following information be presented:

  1. 1. A full description of the project area and project impact area, including maps.
  2. 2. Known and potential distribution of endangered and threatened species in the project area and project impact area, based on recent field surveys conducted in compliance with CDFG guidelines.
  3. 3. Additional information on the species' distribution and habitat, based upon literature, scientific data review, and discussions with experts.
  4. 4. Analysis of possible effects of the proposed project on listed species, including cumulative effects.
  5. 5. Analysis of alternatives designed to reduce or eliminate impacts to endangered and threatened species.

A specific format for the data is not stipulated, but the information must be presented clearly. CDFG then applies the following questions to the project:

  1. 1. Would a viable or recoverable population be eliminated, or would a significant proportion of a population be adversely affected by the project or the project's effects?
  2. 2. Would the range of the species be significantly diminished by the project?
  3. 3. Would habitat used by the species be reduced in quantity or quality by either the immediate or future effects of the project?
  4. 4. Would a species' access to its habitat be reduced or rendered more hazardous as a result of the project?
  5. 5. Would the project adversely affect current or future efforts at providing protection for the species?
  6. 6. Would plans for recovery or eventual delisting of the threatened or endangered species be adversely affected by the project?
  7. 7. Would the project interfere with reproductive or other behavior of the endangered or threatened species?
  8. 8. Would the project cause extinction of the species?

To support a no jeopardy finding, the answers to all of the questions must be no. A yes answer to any of the questions is considered the basis for an initial assumption that a threatened or endangered species would bejeopardized. Final determination of whether or not jeopardy would occur is based on the degree to which the project would increase the risk of extinction, limit options for immediate protection, or decrease the likelihood of future recovery.

2. Native Plant Protection Act

The Native Plant Protection Act includes measures to preserve, protect, and enhance rare and endangered native plants. The definitions of "rare" and "endangered" in the plant act differ from those in the state ESA, but the list of protected native plants encompasses ESA candidate, threatened, and endangered species. The plant act also includes its own restrictions on take, staling that "[n]o person shall import into this state, or take, possess, or sell within this state" any rare or endangered native plant, except as provided in the act. The exception is where a land owner has been notified of the presence of a protected plant by CDFG and is required to notify CDFG at least 10 days in advance of changing land uses to allow CDFG an opportunity to salvage the plants. Salvaging typically is planned and authorized in connection with consultations triggered by Sections 2090-2097 of the state ESA and Section 21 104.2 of CEQA.

3. Natural Community Conservation Planning Act

The NCCP Act was approved in 1991 and added to the California Fish and Game Code as Sections 2800-2840. In general, the Act authorizes the preparation and approval of conservation plans for communities of plants and wildlife, with Section 2835 explicitly providing for the authorization of take of listed species covered by such plans. Currently, the NCCP program is focused on the coastal sage scrub community in southern California, which includes a broad range of sensitive plant and wildlife species.

a. Purpose and Focus

The primary purpose of NCCP program is to preserve local and regional biological diversity, reconcile urban development and wildlife needs, and meet the objectives of the state and federal ESA's by conserving habitat before species are on the brink of extinction. As stated in the planning and conservation guidelines prepared by CDFG and the Scientific Review Panel (SRP) appointed as technical advisors, the NCCP process is designed to:

  • Promote coordination and cooperation among public agencies, landowners, and other private interests;
  • Provide a mechanism whereby landowners and development proponents can effectively participate in the resource conservation process;
  • Provide a regional planning focus which can effectively address cumulative impact concerns, minimize habitat fragmentation, and promote multiple species management and conservation;
  • Provide an option for identifying and ensuring appropriate mitigation for impacts on fish and wildlife;
  • Promote the conservation of broad-based natural communities and species diversity; and
  • Provide for efficient use and 'protection of natural and economic resources while promoting greater public awareness of important elements of the state's critical resources.

As also stated in the guidelines, the NCCP's are intended to:

  1. 1. Protect sufficient coastal sage scrub habitat to ensure the long-term survival of designated "target" species associated with the habitat;
  2. 2. Be based on biological data on the distribution, abundance, and habitat requirements of the designated target species;
  3. 3. Include habitat enhancement and protection measures for small as well as large parcels of lands; and
  4. 4. Satisfy the requirements of the federal and state ESA's for any listed species.

The "target" species recommended by the SRP include but are not limited to: the coastal California gnatcatcher, the cactus wren, and the orange-throated whiptail. The SRP also has identified other sensitive species associated with coastal sage scrub habitat and has prepared biological field survey guidelines for use in the planning process.

b. Subregional NCCP's and Ongoing Multi-Species Plans

Conservation planning under the NCCP program will be conducted in a series of ten to twenty subregions through a process that is designed to:

  1. 1. Encourage maximum cooperation between landowners, local governments, and conservation interests; and
  2. 2. Encourage local government participation by allowing local governments to adapt the NCCP process to their existing administrative processes relating to plan preparation, public participation, public hearing, and environmental review.

In general, the subregional planning process entails six steps:

  1. 1. Enrollment of local governments and landowners in the NCCP program;
  2. 2. Designation of NCCP subregional boundaries by local governments and landowners who have enrolled in the NCCP program, with each subregion of sufficient size and diversity to me meet the guidelines set by the SRP and CDFG;
  3. 3. Establishment of a coordinated process for the preparation, review, and approval of each subregional NCCP, with the process specified in a planning agreement signed by the participating local agencies, landowners, CDFG, and USFWS;
  4. 4. Formulation of the conservation plan through a public planning process, with opportunities for public participation that equal or exceed those provided by existing ordinances, public notice and hearing requirements, and related laws;
  5. 5. Preparation and approval of an implementing agreement that specifies all terms and conditions of activities under the NCCP plan; and
  6. 6. Preparation of appropriate CEQA and NEPA documentation for the actions to be taken on the plan, with the lead agency responsibilities and type of documentation identified in the planning agreement.

The guidelines do not specify a format for individual plans but require that the following components be included:

  1. 1 . Maps and text that clearly present:
    1. (a) The boundaries and extent of the area included in the subregional NCCP;
    2. (b) Existing coastal sage scrub habitat within the subregion;
    3. (c) The distribution of target species populations within the subregion and the presence of other sensitive species;
    4. (d) Quantitative and qualitative assessments of the coastal sage scrub habitat required by the designated target species;
    5. (e) Proposed land uses or other activities that would affect coastal sage scrub habitat.
  2. 2. A habitat conservation and management component that includes:
    1. (a) A range of habitat protection and management options that have been evaluated for their effectiveness;
    2. (b) Criteria for habitat conservation and mitigation that treat all of the target species as listed species;
    3. (c) Policies for habitat protection and management, including short-term and long-term actions to mitigate identified impacts;
    4. (d) Evaluations of potential alternatives to planned development or other activities that would result in incidental take of target species; and
    5. (e) A recommended habitat conservation plan.
  3. 3. An implementation component that includes:
    1. (a) A phasing program designed to assure the long-term protection of habitat and open space corridors over time;
    2. (b) Funding measures;
    3. (c) A mitigation monitoring program that satisfies CEQA requirements and is adequate to measure the effectiveness of plan implementation; and
    4. (d) Procedures to address the effects of unforeseen circumstances.

The guidelines also provide for the recognition of pre-existing conservation planning efforts as NCCP equivalents if the following conditions are met:

  1. 1. The planning effort was funded and underway at the time that the NCCP Act became effective (January 1, 1992), as documented by a memorandum of understanding, an agreement, a statutory exemption, or other formal process.
  2. 2. The plan protects coastal sage scrub habitat and/or contains an mitigation agreement approved by CDFG pursuant to a prior planning effort, and the plan substantially achieves the objectives of the NCCP Act, meaning that the plan provides assurance that coastal sage scrub habitat and named species will be protected to a degree substantially equivalent to an NCCP prepared under the guidelines.
  3. 3. CDFG approves the plan, and the plan meets Section 2081 requirements for named species of concern.
  4. 4. USFWS approves the plan, and the plan meets Section 10(a) requirements for named species of concern.

Such efforts are called "on-going multi-species plans" in the process guidelines and may differ from NCCP's in one or more of the following ways:

  1. 1. The plan covers species and habitats in addition to those in the coastal sage scrub community.
  2. 2. The boundaries of the planning area are different from those for NCCP subregions (but have been previously approved by CDFG and do not significantly impair long-term opportunities for conserving coastal sage scrub region-wide).
  3. 3. Survey methodologies differ from SRP recommended guidelines but have been approved by CDFG.
  4. 4. Timing requirements differ from the target NCCP milestone.
c. Draft Conservation Guidelines and Interim Strategy

Following publication by USFWS of the proposed Special Rule for the California gnatcatcher (see above), the SRP issued draft recommendations for an interim NCCP conservation strategy. In general, the strategy is to minimize short-term loss of coastal sage scrub habitat until a long-term enhancement and conservation program is formulated. Under this strategy, interim loss would be limited to 5 percent of the coastal sage scrub habitat in any subregion. Implementation of the strategy would occur in the following sequence:

  1. 1. In each subregion where an NCCP would be prepared, a planning body would be established according to the approved NCCP process guidelines;
  2. 2. Working in consultation with USFWS and CDFG, the subregional planning body would define the boundaries of the area to be included in the subregional NCCP;
  3. 3. An inventory of coastal sage scrub habitat and species would be completed for the subregion;
  4. 4. All natural lands within the subregion would be evaluated for their long-term conservation based on the method described below;
  5. 5. The amount of coastal sage scrub within the subregion would be calculated, verified by USFWS and CDFG, and used to compute the allowable 5 percent interim loss;
  6. 6. A central clearing house for data on habitat loss would be established within the subregion, and that entity would advise the local land use jurisdictions, USFWS and CDFG regarding actual and anticipated impacts to coastal sage scrub within the subregion;
  7. 7. Interim mitigation requirements would be established for all development of coastal sage scrub habitat, either through a subregional NCCP planning agreement or other written document requiring the concurrence of USFWS and CDFG;
  8. 8. The subregional planning body would work to identify and fill data needs for long-term planning, using SRP conservation guidelines in the process; and
  9. 9. The subregional NCCPs would then be completed according to the approved process guidelines.

Regarding the evaluation of the long-term conservation value of specific lands, the SRP recommends that all lands with natural habitats be included in the analysis, including forestlands, brushlands, native and non-native grasslands, non-irrigated grazed land, and vacant or disturbed natural land. Lands subject to intensive agriculture and urban uses would be excluded. Coastal sage scrub would be identified based on the presence of primary or secondary cover characteristics as defined by the SRP. The effective size of coastal sage scrub patches would then be determined by assays of relatively continuous natural habitat and relatively dense clusters of coastal sage scrub within a one or two mile diameter circle. Proximity to other habitat patches would be measured as a direct, straight-line distance, with the appropriate scale determined for each subregion. Landscape linkages also would be determined by drawing geometric corridors that connect each higher value area to the closest two or three other higher value areas. The presence of species also would be taken into account, with higher value assigned to areas that support significant populations of target species, highly endemic species, or rare sub-habitat types.

In this way, areas within an NCCP subregion would be determined to have higher, intermediate, or lower potential value for long-term conservation. Development would be constrained to the maximum degree practicable on the higher value area until the NCCP is completed; development in intermediate areas would be evaluated on a caseby-case basis; and development on lower potential areas would be allowed with appropriate mitigation.

4. Streambed Alteration Laws

Sections 1600-1603 of the California Pish and Game Code regulate all diversions, obstructions, or changes to the natural flow or bed, channel, or bank of any river, stream, or lake in California that supports fish or wildlife. "Stream" is defined in CDFG regulations as:

A body of water that flows at least periodically or intermittently through a bed or channel having banks and supports fish or other aquatic life. This includes watercourses having surface or subsurface flow that supports or has supported riparian vegetation.

CDFG jurisdiction within altered or artificial waterways is based on the value of those waterways to fish and wildlife and generally mirrors that of COE under Section 404 of the federal Clean Water Act.

Under state law, CDFG must be contacted for a streambed alteration agreement for any project that may impact a streambed or wetland. CDFG has maintained a "no net loss" policy regarding potential impact and has required recreation of wetlands on at least an acre-for-acre basis. Replacement ratios typically are higher than one-for-one in order to offset the immediate loss, replacement time, and inherent failures in mitigation attempts. Public agency projects are addressed under Section 1601 of the Code; private sector projects are addressed under Section 1603.

C. Federal and State Environmental Documentation Requirements

Both federal and state laws regarding the documentation and analysis of environmental impacts pertain to habitat conservation and species protection planning.

1. National Environmental Policy Act

The National Environmental Policy Act (NEPA) requires federal agencies to evaluate the effects of their proposed actions on the human environment in a written statement that addresses:

  1. 1. The environmental impact(s) of the proposed action;
  2. 2. Any adverse environmental effects that cannot be avoided should the proposed action be implemented;
  3. 3. Alternatives to the proposed action;
  4. 4. The relationship between short-term uses of the human environment versus the maintenance and enhancement of long-term productivity; and
  5. 5. Any irreversible and irretrievable commitments of resources that would be involved if the proposed action is implemented.

Compliance with NEPA generally begins with an internal "scoping" process. If a preliminary review indicates that the proposed action has no or minimal environmental impacts, then a "categorical exclusion" may be determined and no further environmental documentation is required. If the review indicates that the proposed action may have significant effects, then an environmental assessment (EA) or an environmental impact statement (EIS) must be prepared. An EA is prepared when the preliminary review indicates that the proposed action is not likely to have significant impacts; an EIS is prepared when the expected impacts are significant.

2. California Environmental Quality Act

Similar to NEPA, the California Environmental Quality Act (CEQA) requires state agencies empowered to make discretionary decisions to evaluate the environmental effects of a proposed project before rendering a decision. The evaluation begins with an initial study that includes:

  1. 1. A description of the project, including the location of the project;
  2. 2. An identification of the environmental setting;
  3. 3. An identification of environmental effects by use of a checklist, matrix, or other method;
  4. 4. A discussion of ways to mitigate the significant effects identified, if any;
  5. 5. An examination of whether the project would be consistent with existing zoning, plans, and other applicable land use controls; and
  6. 6. The name of the person or persons who prepared or participated in the Initial Study.

If one or more significant impacts are identified, a detailed environmental impact report (EIR) must be prepared. If no significant impacts are determined or if all of the significant impacts can be mitigated, a negative declaration is prepared. CEQA also requires that a negative declaration or draft EIR be prepared if a project has statewide, regional, or area wide significance and defines projects that would substantially affect sensitive habitats as projects of area wide significance.

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