HomeMy WebLinkAbout2003-06-17; City Council; Resolution 2003-1561
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RESOLUTION NO. 2003-156
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA APPROVING REVISIONS TO THE
IMPLEMENTING AGREEMENT (IA) FOR THE CARLSBAD
HABITAT MANAGEMENT PLAN TO UPDATE THE AGREEMENT
AND TO AUTHORIZE THE MAYOR TO SIGN THE AGREEMENT
WHEN IT IS FINALIZED WITH THE U. S. FISH AND WILDLIFE
SERVICE AND THE CALIFORNIA DEPARTMENT OF FISH AND
WHEREAS, an Implementing Agreement (IA) is necessary to administer the
agreements made between the City of Carlsbad and the Wildlife Agencies (USFWS and CDFG)
regarding the Carlsbad Habitat Management Plan (HMP) and the lO(a) Take Permit that will be
issued to the City; and
WHEREAS, the IA provides assurances to the City that projects can be permitted
and constructed consistent with the HMP and it provides assurances to the Wildlife Agencies
that the protections for species and habitat contained in the HMP will be carried out in
conjunction with such projects; and
WHEREAS, on September 21, 1999, the City Council previously reviewed a draft
of the Implementing Agreement; and
WHEREAS, it is now necessary to revise the previous draft with certain text
changes reflecting the most recent consultations with Wildlife Agencies staff; and
WHEREAS, on June 17, 2003 the City Council reviewed the revisions and found
them to be appropriate.
NOW, THEREFORE, the City Council of the City of Carlsbad, does hereby
resolve as follows:
1.
2. The revisions to the Implementing Agreement (IA) as contained in
The above recitations are true and correct.
Attachment “C are approved.
3. Staff is directed to submit the revised IA to the Wildlife Agencies and is
authorized to make any additional non-substantive revisions requested by the Agencies.
4. The Mayor is authorized to sign the final version of the IA once the Carlsbad Habitat Management Plan has been approved by the Wildlife Agencies.
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PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Carlsbad on the 17th day of June, 2003, by the following vote, to wit:
AYES: Council Members Lewis, Finnila, Kulchin, Hall, Packard
NOES: None
ABSENT: None
ATTEST:
(SEAL)
Resolution No. 2003-156 -2- J5
Attachment "C
"JUNE 9,2000 USFWS DRAFT"
UPDATED APRIL. 2003
IMPLEMENTING AGREEMENT
by and among
THE CITY OF CARLSBAD, THE CALIFORNIA DEPARTMENT OF FISH AND GAME,
and the
U.S. FISH AND WILDLIFE SERVICE
TO ESTABLISH THE HABITAT MANAGEMENT PLAN FOR THE CONSERVATION OF
THREATENED, ENDANGERED AND OTHER
SPECIES IN THE CITY OF CARLSBAD, CALIFORNIA
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2.0
3.0
4.0
5.0
6.0
7.0
8.0
9.0
10.0
11.0
TABLE OF CONTENTS
RECITALS .............................................................................................................. 1
PURPOSE ................................................................................................................ 3
DEFINITIONS ......................................................................................................... 4
HABITAT CONSERVATION PLAN/NCCP PLAN ............................................. 7
INCORPORATION OF HMP ................................................................................. 8
LEGAL AUTHORITY OF THE USFWS ............................................................... 8
LEGAL AUTHORITY OF THE CDFG .................................................................. 9
SATISFACTION OF LEGAL REQUIREMENTS ................................................. 9
COOPERATIVE EFFORT ...................................................................................... 9
TERM ...................................................................................................................... 9
MUTUAL ASSURANCES ................................................................................... 10
11.1 Compliance with Applicable Laws ............................................................ 10
11.2
“No Surprises” Assurances of USFWS 11.3 3
Conservation of HMP Species ................................................................... 10
... ..
and CDFG .............................................................................................................. 12
.. 11.4
ListinP of species that are not HMP Covered Species ........................................... 14
1 1.5 Future Listings ............. ............................................................................ 14
A . Consideration of the HMP and Similar Plan ........................................ 14
B . HMP Covered Species ......................................................................... 14
C . Non-HMP Species ................................................................................ 15
Other Regulatory Permitting ...................................................................... 16 .. 11.6
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12.0
A .
B .
C .
D .
E .
F .
Other Permits ................................................................................. 16
Section 7 Consultations .................................................................. 16
Consultations by CDFG ................................................................. 16
Migratory Bird Treaty Act ............................................................. 17
Fully Protected Birds ..................................................................... 17
Future Environmental Documentation ........................................... 17
1 1.7
1 1.8
1 1.9
1 1.10
Special Rules Under Section 4(d) .............................................................. 18
Mitigation Bank ......................................................................................... 18
Growth Inducing Impacts .......................................................................... 18
Critical Habitat ........................................................................................... 18
11.11
1 1.12
Duty to Enforce .......................................................................................... 18
Severability from MHCP ........................................................................... 19
OBLIGATIONS OF CARLSBAD ........................................................................ 19
12.1 Preserve System ......................................................................................... 19
Existing Hardline Areas .................................... : .......... : ................. 20
Proposed Hardline Areas ............................................................... 20
Standards Areas ............................................................................. 20
Project Mitigation Measures ...................................................................... 21
Regulatory Implementation Measures ....................................................... 21
A .
B .
C .
12.2
12.3
12.4 Additional Implementation Measures ........................................................ 21
A . Record Keeping ............................................................................. 21
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B .
C .
Annual Review ............................................................................... 22
Preserve Management and Monitoring Plan .................................. 22
Participation in Regional Conservation Efforts ......................................... 22
Cooperative Regional Implementation ...................................................... 22
12.5
12.6
MONITORING AND REPORTING ..................................................................... 23
13.1
13.0
Planned Periodic Reports ........................................................................... 23
13.2 Other reports .............................................................................................. 23
Certification of Reports .............................................................................. 23 13.3
13.4 Monitoring by USFWS and CDFG ............................................................ 23
M.!? cI.J9wcz5c-
1Al P 1 ..I ”
1H.O ADAPTIVE MANAGEMENT .............................................................................. 24
ls.1 Reductions in mitigation ............................................................................ 24
154.2 No increase in take ..................................................................................... 24
165.0 FUNDING .............................................................................................................. 24
165 . 1 MHCP Core Area Participation ................................................................. 24
165.2 Preserve Management PI an ........................................................................ 24
165.3 Management of the Habitat at the Lake Calavera City Mitigation Bank .. 24
165.4 Program Administration ............................................................................. 25
165.5 Habitat In-Lieu Mitigation Fee .................................................................. 25
165.6 Limits on Funding ...................................................................................... 25
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136.0 OBLIGATIONS OF USFWS AND CDFG ........................................................... 25
136.1 Obligations of USFWS .............................................................................. 25
136_.2 Obligations of CDFG ................................................................................. 25
182.0 ENVIRONMENTAL REVIEW ............................................................................ 26
182.1 Federal Law -NEPA .................................................................................. 26
182.2 State Law .CEQA ..................................................................................... 26
198.0 ISSUANCE OF THE PERMIT ............................................................................. 26
198.1 Findings -USFWS ..................................................................................... 26
A . Incidental Take ................ : .............................................................. 26
.. B . Minimize and Mitigate ................................................................... 26
C . Adequate Funding .......................................................................... 26
D . No Jeopardy ................................................................................... 26
E . Other Measures .............................................................................. 26
198.2 Issuance of Take Authorization -USFWS ................................................. 26
198.3 Findings -CDFG ........................................................................................ 27
198.4 Issuance of Take Authorizations -CDFG .................................................. 27
198.5 Findings -Section 4(d) Special Rule .......................................................... 27
NB.0 REMEDIES AND ENFORCEMENT ................................................................... 27
MB.1 Remedies In General .................................................................................. 27
A . No Monetary Damages ........................................................................ 27
B . Injunctive and Temporary Relief ......................................................... 28
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2M.O TH3Z PERMIT REMEDIES ................................................................................... 28
240.1 A . The CESA/NCCP Authorization ................................................... 28
B . lO(a) Permit ................................................................................... 29
221.0 TERMINATION .................................................................................................... 30
232.0 PLAN AMENDMENT .......................................................................................... 31
232.1 Minor Amendments ................................................................................... 31
232.2 Major Amendments ................................................................................... 31
232.3 Standards Areas ......................................................................................... 32
232.4 City Projects ............................................................................................... 32
243.0 FORCE MAJEURE ............................................................................................... 32
254.0 MISCELLANEOUS PROVISIONS ...................................................................... 33
254.1 No Partnership ........................................................................................... 33
254.2 Successors and Assigns .............................................................................. 33
254.3 Notice ......................................................................................................... 33
254.4 Entire Agreement ....................................................................................... 33
254.5 Elected Officials Not to Benefit ................................................................. 33
2g.6 Availability of Funds ................................................................................. 33
254.7 Duplicate Originals .................................................................................... 34
2g.8 Governing Law .......................................................................................... 34
254.9 Reference to Regulations ........................................................................... 34
254.10 Applicable Laws ........................................................................................ 34
254 . 1 1 No Third Party Beneficiaries ..................................................................... 34
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1.0 RECITALS
This Implementing Agreement ("Agreement"), made and entered into as of , 20083 (the "Effective Date") by and among The City of Carlsbad, California
("Carlsbad"), the California Department of Fish and Game, a subdivision of the California
Resources Agency ("CDFG"), and the U.S. Fish and Wildlife Service, an agency of the United
States Department of the Interior (YJSFWS"), hereinafter collectively called the "Parties,"
defines the Parties' roles and responsibilities and provides a common understanding of actions
that will be undertaken to minimize and mitigate the effects on the species covered under the HMP and their habitats in future land development in Carlsbad.
Based upon the recitals, definitions, mutual covenants and obligations, and other
provisions set forth below, and other valuable consideration, the Parties agree as follows:
1.1 Carlsbad's interest in preserving sensitive habitat dates back to its adoption
of an Open Space and Conservation Element of its General Plan in the mid-1970's. Carlsbad
appointed a Citizens Committee to review Carlsbad' s Open Space Plan in the late 1980's, and a
primary recommendation of the Committee was to make the protection of wildlife habitats and
sensitive species an open space priority.
1.2 In November, 1990 the Carlsbad City Council authorized the first
technical studies for a habitat conservation component for the Open Space and Conservation
Element of Carlsbad' s General Plan.
1.3 The State of California adopted the Natural Community Conservation
Planning Act ("NCCP Act") in 1991. Carlsbad signed a Memorandum of Agreement with CDFG
and USFWS in 1991, and an NCCP Agreement with CDFG in 1992. In these, Carlsbad
expressed its intent to prepare and implement a Habitat Management Plan ('IHMP'').
1.4 In 1993, the USFWS listed the coastal California gnatcatcher as a
threatened species under the Endangered Species Act, 16 U.S.C. $9 1531 et seq., as amended
("ESA"), and adopted a Section 4(d) Special Rule. The gnatcatcher resides in portions of
Carlsbad.
1.5 Carlsbad has developed the HMP to meet the requirements of the ESA, the
California Endangered Species Act and the NCCP Act. Consistent with the NCCP Act, the HMP
is a broad-based habitat planning effort intended to provide for effective protection and
conservation of wildlife and plant species while continuing to allow compatible development in
accordance with Carlsbad's Growth Management Plan ("GMP"). Such planning is intended to be
an effective tool to protect Carlsbad's and the region's biodiversity while reducing conflicts
between protection of wildlife and plants and the reasonable use of land for economic
development. The HMP has been developed through a cooperative effort involving the public
through the USFWS, CDFG, local government agencies, property owners, development
interests, and environmental groups.
1.6 The HMP describes a cooperative federal, state and local program of
conservation for 47 species of plants and animals. The HMP is a product of numerous studies
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and lengthy negotiations by the Parties and other interested persons/entities, and represents
coordination of private and public development and conservation interests with federal, state and
local governments.
1.7 One of the goals of the HMP is to conserve biodiversity, including
federally listed species, in the HMP Area and to achieve certainty in the land development
process for both private and public sector land development projects.
1.8 The HMP is a comprehensive, long-term habitat conservation plan for
species covered by the HMP. It addresses the needs of 47 species through the preservation of
natural vegetation communities in a configuration that contributes to their long-term survival.
The HMP also addresses the potential impacts of urban growth, natural habitat loss and species
endangerment and creates a plan to minimize and mitigate for the potential loss of HMP Species
and their habitat resulting from the direct and indirect impacts of future development of both
private and public lands within Carlsbad.
1.9 The HMP as implemented through this Agreement establishes the
conditions under which Carlsbad, for the benefit of itself and of public and private landowners
and other land development project proponents within its boundaries, will receive from the
USFWS and the CDFG certain long-term Take Authorizations (and an acknowledgment that the
HMP satisfies the conditions established in the Section 4(d) Special Rule for the coastal
California gnatcatcher) for HMP species covered by the HMP which is incidental to land
development and other lawful land uses authorized by Carlsbad except as provided in Section
1 1.6.E. of this Agreement.
1.10 The Take Authorizations will authorize the Incidental Take of all HMP
wildlife in accordance with the HMP including those which are not presently listed as threatened,
endangered or candidate species under the ESA or CESA, except as provided in Section 11.6.E
of this Agreement. Conserving unlisted HMP Species (the "taking" of which is not unlawfbl
under the ESA) the same as listed HMP covered Species (the taking of which is unlawful in the
absence of a Take Authorization) equally in the HMP and this Agreement may prevent such
species from ever being in danger of becoming extinct and will provide certainty regarding how
the subsequent listing of such species under the ESA and CESA will affect permitting and
mitigation requirements for future land development within Carlsbad. The HMP will conserve
several plant species, the take of which is not prohibited under the ESA. In recognition of the
conservation provided in the HMP for these plant species, the species will receive the benefit of
the Service's "no surprises" rule.
1.11 Implementation of the HMP will allow Carlsbad to maintain development
flexibility by proactively planning a local preserve system which can meet future development
project mitigation needs.
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1.12 Preservation of natural vegetation communities and wildlife will
significantly enhance the quality of life in Carlsbad and set aside lands for the fiture use and
enjoyment of the citizens of Carlsbad, the state and the nation.
1.13 Carlsbad has submitted the lO(a)(l)(B) permit and HMP to the USFWS
and CDFG in support of, respectively, an application for a Section 10(a) Permit and a
CESNNCCP Authorization. The CDFG has approved the HMP, and the USFWS has issued
written concurrence that the HMP meets the statutory criteria for issuance of a Section lO(a)
Permit.
1.14 The HMP is also a component of the North County Multiple Habitat
Conservation Plan (MHCP) approved by the San Diego Association of Governments on March
28, 2003. The MHCP is a cooperative effort of seven cities to contribute collectively to the
conservation of sensitive plant and animal species and their habitat on a subregional basis in
northwestern San Diego County. The seven cities will implement their respective portions of the
MHCP plan through citywide “subarea” plans. The HMP is one of the subarea plans and was
included in the approved MHCP and the ioint EWEIS which addressed the environmental
effects associated with implementation of the Plan.
1.15 The HMP was reviewed by the California Coastal Commission on June . 2003 for consistency with the California Coastal Act and Coastal Management Promam
pursuant to the request for Consistency Review granted by the federal Office of Ocean and
Coastal Resource Management (OCRM) in Auprust. 2000. The Coastal Commission has
determined that based on the conservation standards contained in the HMP and the additional
standards for coastal properties contained in Addendum #2 to the HMP, the HMP is consistent
with the California Coastal Act and Coastal Management Program.
1.146 The parties acknowledge that they have met and conferred in good faith
regarding Carlsbad’ s proposed Golf Course and the Golf Course is depicted as a proposed
Hardline Area in Figure 8 revised. shown in Addendum #2 of the HMP. Approval of the HMP
and this Implementing Agreement will allow Carlsbad to obtain the Take Authorizations
necessary to allow construction. of the Golf Course.
2.0 PURPOSE
The purposes of this Agreement are:
2.1 To ensure implementation of the HMP;
2.2 To describe remedies and recourse should any Party fail to perform its
obligations, responsibilities, and tasks as set forth in this Agreement; and,
2.3 To provide assurances to Carlsbad that as long as the terms of the HMP
and the Permits issued pursuant to the KMP and this Agreement are fully and faithfully
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performed, no additional compensation for the incidental take of HMP covered species will be
required except as provided for in this Agreement or required by law.
3 .O DEFINITIONS
The following terms as used in this Agreement shall have the meanings set forth
below:
3.1 The term "Agreement" means this Agreement.
3.2. The term "CDFG" means the California Department of Fish and Game, a
subdivision of the California Resources Agency.
3.3 The term "CEQA" means the California Environmental Quality Act (Cal.
Public Resources Code $9 21000 et seq.), including all regulations promulgated pursuant to that
Act.
3.4 The term "CESA" means the California Endangered Species Act
(California Fish and Game Code $0 2050 et seq.), including all regulations promulgated pursuant
to that Act.
3.5 The term "CESA/NCCP Authorization" means the authorization issued in
accordance with this agreement by CDFG under the NCCP Act, California Fish and Game Code
and Game Commission under the NCCP Act, to permit the Take of an HMP Covered Species
including such species that are listed under CESA as threatened or endangered, or of a species which is a candidate for such a listing, or that are candidates for such a listing.
3.6 The term "Changed Circumstances" means changes in circumstances
affecting a species or geographic area covered by the HMP that can reasonably be anticipated by
the Parties and that can be planned for as part of the HMP. Changed Circumstances are identified
at Section G of the HMP.
3.7 The term "Core" means a component of the preserve system established
under the HMP, consisting of large blocks of conserved habitat capable of sustaining HMP
Species in perpetuity.
3.8 The term "Conserved Habitat Areas" means the Existing Hardline Areas,
Proposed Hardline Areas, Standards Areas, Conserved Parcels in the MHCP Core Areas and
Special Resource Areas as depicted on Figures 4, 5, 6, 27 and discussed in Sections D(2)(1),
D(3)(A), and D(3)(B) and Addendum #2 of the HMP and conserved as described under the
HMP.
3.9 The term "Covered Activities" means land development activities
undertaken by Carlsbad or by third parties who obtain development permits from Carlsbad
consistent with the Carlsbad General Plan and Growth Management Plan as amended to be
consistent with the HMP and the HMP Preserve Management as described in Section G and
management activities on Conserved Habitat Acres.
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3.10 The term "Covered Lands" means the lands upon which the Take
Authorizations authorize incidental take of HMP Covered Species and the lands to which the
HMP's conservation and mitigation measures apply. These lands are identified on Figure 1 in the
HMP.
3.11 The term "ESA" means the federal Endangered Species Act (16 U.S.C.$$
153 1 et seq.), including all regulations promulgated pursuant to that Act.
3.12 The term "Existing Hardline Areas" means areas which were conserved
and committed to habitat conservation prior to the Effective Date as a result of existing open
space regulations, past development approvals or other actions these areas are depicted on Figure
5 of the HMP.
3.13 The term "Focused Planning Area Map" means the map included as
Figure 4 of the HMP which depicts the lands of high biological value that will be considered for
conservation or development as part of the HMP.
3.14 "Habitat Conservation Plan" and "HCP" mean the Habitat Management Plan (I'HMP'') prepared by Carlsbad pursuant to Section lO(a)(2)(A) of the ESA, (16 U.S.C. 0 1539(a)(2)(A~, dated December, 1999 with Addendum #2 dated December 16,2002.
3.15 The term "HMP" means the Carlsbad Habitat Management Plan.
3.16 The term "HMP Core" means an area within the Focus Planning Area Map
which consists of blocks of habitat that are sufficiently large to reliably support breeding
populations of species, or that are large and intact enough to form ecologically hctional areas
for preserve design as shown in Figure 4 of the HMP .
3.17 The term "HMP Covered Species" means those species listed in Table 2 of
the HMP, each of which the HMP addresses in a manner sufficient to meet all of the criteria for
issuing an incidental take permit under the ESA, CESA and NCCP Act.
3.18 The term "Incidental Take" means the taking of an HMP species
incidental to and not the purpose of carrying out otherwise lawful activities.
3.19 The term "Linkage" means a component of the preserve system
established under the HMP, consisting of conserved habitat that provides connectivity between
Cores and to natural communities within the region.
3.20 "Local Facilities Management Zone" ("LFMZ") means those 25 areas
defined in the City's Growth Management Program for planning purposes.
3.21 The term "MBTA" means the federal Migratory Bird Treaty Act (16
U.S.C. $9 701 et seq.), including all regulations promulgated pursuant to that Act.
3.22 The term "MHCP" means the Multiple Habitat Conservation Plan,
comprehensive subregional plan, adopted in March, 2003. which addresses multiple species
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habitat needs and the preservation of native vegetation in a 175 sauare mile area in northwestern
San Diego County, California.
3.223 The term "NCCP Act" means the California Natural Community
Conservation Planning Act of 1991, enacted by Chapter 765 of the California statutes of 1991
(A.B. 2172) (codified in part at California Fish and Game Code $0 2800, et seq.), including all
regulations promulgated pursuant to that Act.
3.2% The term "NCCP Plan" means a plan developed in accordance with the
NCCP Act which provides comprehensive management and conservation of multiple wildlife
and plant species, and which identifies and provides for the regional or area-wide protection and
perpetuation of natural wildlife diversity while allowing compatible and appropriate
development and growth.
3.25 "No Smrises Rule" means the rule Dromulgated by USFWS and currently
codified at 50 C.F.R 17.3, 1722(b)(5) and 17.32(b)(5) that extends certain assurances reparding
future mitigation obligations to permittees obtaining incidental take permits under Section 1 O(a)
of the Federal ESA.
3.246 The term "Operating Conservation Program" means the conservation and
management measures provided under the HMP and/or this Agreement to minimize, mitigate
and monitor the impacts of Take of the HMP species as described in Sections C, D, E, F, and
Appendix C of the HMP and including those measures described in Section G of the HMP to
respond to Changed Circumstances. The Operating Conservation Program also includes
Carlsbad's regulatory commitments set forth at Section 12 of this Agreement and reporting
obligations under the Take Authorizations.
3.252 The terms "Party" and "Parties" mean the signatories to this Agreement,
namely the United States Fish and Wildlife Service, the California Department of Fish and
Game, and Carlsbad.
3.268 The term "Proposed Hardline Area" means a property whose conservation
and development areas have been planned as part of the HMP, as discussed in Section D(3)(b)
and as depicted in Figure 6 and Addendum #2 of the HMP.
3.239 The term "Public Lands" means property owned by Carlsbad, as depicted in Figure 3 1 and as illustrated in Figures 3 and 4 of the HMP .
3.2825!. The term "Section 4( d) Special Rule" means the regulation concerning
the coastal California gnatcatcher, published by the USFWS on December 10, 1993 (58 Federal
Register 65088) and codified at 50 C.F .R. 0 17.41 (b), which defines the conditions under which
the Incidental Take of the coastal California gnatcatcher in the course of certain land use
activities is lawful.
3.B3J The term "Section 1O(a) Permit" means the permit issued by the USFWS
to Carlsbad under section lO(a)(l)(B) of
Incidental Take of HMP Covered Species.
the ESA (16 U.S.C. §-1539(a)(l)(B)) to allow the
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3.302 The term "Special Resource Area" or "SRA" means a component of the Focus Planning Areas consisting of conserved habitat outside of HMP Cores and Linkages as described in Section D(2)(I) of the HMP.
3.343 The term "Standards" means special land use regulations to be adopted by
Carlsbad to implement the HMP, as described in Sections D and E of the HMP.
3.3% The term "Standards Areas" means lands designated and depicted in
Figure 26 of the HMP which must be designed, permitted and developed in accordance with the
Standards stated in Section D of the HMP.
3.335 The terms "Take" and "Taking" shall have the meanings provided by the ESA and the California Fish and Game Code and shall apply to both listed and unlisted HMP
Covered Species.
3.346 The term "Take Authorization" means the Section 1O(a) Permit, the CESA
208 1 Permit, and/or the CESA/NCCP Authorization.
3.351 The term "Unforeseen Circumstances" means changes in circumstances
affecting the Plan Species or the Permit Area that could not reasonably have been anticipated by Carlsbad, CDFG or USFWS as of the Effective Date, and that result in a substantial and adverse change in the status of a HMP Covered Species.
3.368 "USFWS" means the United States Fish and Wildlife Service, an agency
of the United States Department of the Interior.
3.39 "Wetlands" means generally those areas that are inundated or saturated by
surface or mound water at a fiequency or duration sufficient to support a prevalence of
vegetation twicallv adapted for life in saturated soil conditions. For purposes of the Carlsbad
HMP, wetlands are those lands which contain one or more of the naturally occurring wetland
communities listed in Appendix A of the HMP and further described in Section D.7-6
(Addendum #2) for the Coastal Zone. Wetlands also include areas lacking wetland communities
due to non-permitted filling of previously existing wetlands.
4.0 HABITAT CONSERVATION PLANNCCP PLAN
Pursuant to Section lO(a)(2)(A) of the ESA (16 U.S.C. 0 1539(a)(2)(A)), Carlsbad
has prepared a Habitat Conservation Plan known as the "Habitat Management Plan" or "HMP."
The HMP qualifies as an NCCP Plan under the NCCP Act. The HMP proposes a program of
conservation for the HMP Species and protection of their habitat in perpetuity through land use
regulation, acquisition and management. Carlsbad has submitted the HMP to the USFWS and the
CDFG, and Carlsbad has requested that the USFWS issue a Section lO(a) Permit and that the
CDFG issue a 208 1 Permit and CESA/NCCP Authorization, each of which actions will allow the
Incidental Take within the HMP Area of those HMP Covered Species determined by USFWS
and CDFG to be adequately conserved by the HMP in accordance with this Agreement. The
HMP proposes a mitigation program for the HMP Covered Species and their habitats. Carlsbad
has also requested that the USFWS acknowledge that the HMP satisfies the conditions under the
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Section 4(d) Special Rule to allow the Incidental Take of the coastal California gnatcatcher
within HMP Area.
5.0 INCORPORATION OF HMP
The HMP and each of its provisions are intended to be and by this reference are
incorporated herein. In the event of any direct contradiction between the terms of this Agreement
and the HCP, the terms of this agreement will control. In all other cases, the terms of this
Agreement and the terms of the HCP will be interpreted to be supplementary to each other. The
HMP and this Agreement are intended to be harmonious and a complete expression of the
agreement between the Parties, and thereby supersede all other HMP-related drafts, position
papers, working documents and other documents.
6.0 LEGAL AUTHORITY OF THE USFWS
The USFWS enters into this Agreement pursuant to the ESA and the Fish and
Wildlife Act of 1956 (16 U.S.C. $0 742(f) et seq.). Section lO(a)(l)@) of the ESA, 16 U.S.C. $
1539(a)(l)(B), expressly authorizes the USFWS to issue a Section lO(a) Permit to allow the
Incidental Take of species listed as threatened or endangered under the ESA. The legislative
history of Section lO(a)( 1)(B) clearly indicates that Congress also contemplated that the USFWS
would approve Habitat Conservation Plans that protect unlisted species as if they were listed
under the ESA, and that in doing so the USFWS would provide Section lO(a)(l)(B) assurances
for such unlisted species. The relevant excerpt from such legislative history states as follows:
The Committee intends that the Secretary [of the Interior] may
utilize this provision [on habitat conservation plans] 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 Wher 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 hrther 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. It is also
recognized that circumstances and information may change over
time and that the original plan might need to be revised. To address
this situation the Committee expects that any plan approved for a
long-term permit will contain a procedure by which the parties will
deal with unforeseen circumstances.
H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 30-31 (1982) (Conference Report on 1982
Amendments to the ESA). The USFWS routinely approves Habitat Conservation Plans that
address both listed and unlisted species.
8
7.0 LEGAL AUTHORITY OF THE CDFG
The CDFG enters into this Agreement pursuant to its authority under the CESA
and the NCCP Act. CDFG may authorize the take of HMP Covered Species, including species
listed under CESA, pursuant to Fish and Game Code section 2081 and/or 2835 if the HMP
provides for the conservation and management of those species. In addition, under Fish and
Game Code section 2830, the California Fish and Game Commission may authorize the take of
any HMP Covered Species that may become listed as candidate species under CESA.
8.0 SATISFACTION OF LEGAL REQUIREMENTS
In order to fulfill the legal requirements that will allow the USFWS to issue the
Section lO(a) Permit, an HCP must provide measures that are intended to ensure that any Take
will be incidental; that the impacts of such Incidental Take will, to the maximum extent
practicable, be minimized and mitigated; that procedures to deal with Changed Circumstances
and Unforeseen Circumstances are provided; that adequate funding to implement the HCP will
be provided; and that the Incidental Take will not appreciably reduce the likelihood of the
survival and recovery of the HMP Covered Species in the wild. The USFWS finds that the HMP
as implemented pursuant to this Agreement does provide such measures, and does satisfy the
legal requirements necessary for the USFWS to issue a Section lO(a) Permit authorizing the
Incidental Take of HMP Covered Species, and to provide the regulatory assurances contained in
USFWS's No Surprises rule at 50 C.F.R. section 17.22@)(5) and 17.32(b)(5). Likewise, the
CDFG finds that the HMP as implemented pursuant to this Agreement satisfies the standard in
Fish and Game Code section 2835 that an NCCP Plan provide for the conservation and
management of the species, and is eligible for the specific assurances contained in this
Agreement.
9.0 COOPERATIVE EFFORT
In order that each of the legal requirements as set forth in Paragraph 8.0 hereof are
fulfilled, each of the Parties to this Agreement must perform certain specific tasks as set forth in
the HMP. The HMP thus describes a cooperative program by Federal, State and local agencies to
conserve HMP Covered Species.
10.0 TERM
10.1 This Agreement, and the HMP, will become effective with respect to
USFWS on the date USFWS issues the Section lO(a)(I)(B) permit and with respect to CDFG on
the date CDFG issues the NCCP take authorization. This Agreement, the HMP, and the Take
Authorizations will remain in effect for a period of 50 years from the issuance of the original
Take Authorizations, except as otherwise provided in this Agreement or in section G of the HMP
10.2 Upon agreement of the Parties and compliance with all applicable laws,
the Take Authorizations may be extended beyond their initial term under regulations of USFWS
and CDFG in force on the date of such extension. If Carlsbad desires to extend the permit, it will
9
so notify the USFWS and CDFG at least 180 days before the then-current term is scheduled to
expire. Extension of the permit constitutes an extension of the HCP and this Agreement for the
same amount of time, subject to any modifications the USFWS and/or CDFG may require at the
time of extension.
10.3 Notwithstanding the Stated Term indicated above, the Parties agree and
recognize that once the HMP Covered Species have been incidentally taken and their habitat
modified pursuant to the HMP, such take and habitat modification will be permanent. It is
therefore the intention of the Parties that the provisions of the HMP and of this Agreement
regarding the preservation and maintenance of habitat provided for under this Agreement shall
likewise, to the extent permitted by law, be permanent and extend beyond the terms of this
Agreement.
11 .O MUTUAL ASSURANCES
11.1 Compliance with Applicable Laws. Compliance with the terms of this
Agreement, the HMP, and the Take Authorizations and compliance with all applicable land use
regulation, mitigation, compensation and habitat management obligations contained in this
Agreement and/or imposed by Carlsbad on its own land development projects and the
proponents of land development projects within the HMP Area in accordance with the HMP, this
Agreement, the Take Authorizations, and governing federal and state laws and regulations,
including 50 C.F .R. Parts 13 and 17 and 14 C.C.R. sections 783.0-783.8, constitute compliance
with the Incidental Take and related provisions of the ESA, the CESA, the NCCP Act, and the
California Native Plant Protection Act ("NPPA") (California-Fish and Game Code 5 1900, et
seq.).
11.2 Conservation of HMP Covered Species. Implementation of the HMP and
this Agreement is intended to, and based on the best available scientific information about the
HMP Covered Species and the biological analyses performed by USFWS and CDFG of the HMP
Covered Species, will adequately provide for the conservation and protection of the HMP
Covered Species and their habitats in the HMP Area in perpetuity sufficient to enable the
USFWS and CDFG to authorize take of the HMP Covered Species in the manner described in
the HMP and set forth in the Take Authorizations.
'
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regarding the situation,
the situation, provide
present
1 1.3 ‘No Surprises’ Assurances of USFWS and CDFG
A. Unforeseen Circumstances. As provided in 50 C.F.R. 17.3. the term
“Unforeseen Circumstances” shall mean changes in circumstances affecting a species or
geographic area covered by the HMP that could not reasonably have been anticipated by the plan
developers, USFWS. and CDFG at the time of the Plan’s negotiation and development, and that
results in a substantial and adverse change in the status of a Covered Species.
(1, “No Surprises” Assurances. Pursuant to the No Sumrises Rule at
50 C.F.R. Sections 17.3, 17.22&)(5) and 17.32.(b)(5), and provided that Carlsbad is properly
implementing - the HMP, USFWS shall not rewire Carlsbad to provide additional land, water or
other natural resources, or financial compensation or additional restrictions on the use of land,
water. or other natural resources beyond the level provided for under the HMP. this Ameement
and the Section lO(a)(l)(B) Permit with respect to Covered Activities without the consent of
Carlsbad. Adaptive Management modifications and ulan responses to Changed Circumstances
are provided for under the HMP and therefore are not subject to the restrictions on additional
mitigation contained in the No Surprises Rule. If USFWS makes a finding of unforeseen
circumstances, durinp the period necessarv to determine the nature and location of additional or
modified mitigation, Carlsbad will avoid contributing to appreciably reducing the likelihood of
the survival and recovery of the affected species and will exercise its enforcement authorities as
provided by law as to third persons under Carlsbad’s iurisdiction and control that are carrving
out Covered Activities, to avoid such third persons contributing to appreciably reducing the
likelihood of the survival and recovery.of the affected species.
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(2) CDFG Assurances. Except as otherwise provided in this
subsection or required by law, CDFG shall not require Carlsbad to provide. without its consent,
additional land. water or financial compensation, or additional restrictions on the use of land,
water, or other natural resources, for the purpose of conserving Covered Species with respect to
Covered Activities in the event of Unforeseen Circumstances, provided Carlsbad is properly
implementing this Agreement and the HMP. The provisions of this Agreement and the HMP
that address adaptive management and the Changed Circumstances, including changes to the
legal status of fully protected species and non-covered species, are not Unforeseen
Circumstances and therefore are not subiect to these assurances.
(3) Unforeseen Circumstances Finding. In the event that USFWS,
CDFG or Carlsbad believes that Unforeseen Circumstances may exist in accordance with the
“No Surprises” rule, it shall immediately notify the other Parties. Within 30 davs of such notice,
if USFWS believes an Unforeseen Circumstance exists. it shall provide written notice of its
proposed finding of Unforeseen Circumstances to the other Parties. USFWS shall clearly
document the basis for the proposed finding regarding the existence of Unforeseen
Circumstances pursuant to the requirements of 50 CFR 0 17.22(b)(5)(iii)(C) and
17.32(b)(Wiii)(C). Within fifteen (15) davs of receiving such notice. the CITY, USFWS and
CDFG shall meet or confer to consider the facts cited in the notice and potential changes to the
HMP or management and operation of the Preserve lands. Pursuant to 50 C.F.R
17.22@)(5)(iiiMC) and 50 C.F.R. 17.32(b)(5)(iii)(C) USFWS shall make an Unforeseen
Circumstances findinp based on the best scientific evidence available, after considering any
responses submitted bv Carlsbad pursuant to this section, and USFWS and/or CDFG shall have
the burden of demonstratinp that Unforeseen Circumstances exist.
(4) Effect of Unforeseen Circumstances Finding. Pursuant to 50
C.F.R. 17.22@)(5) and 17.32(b)(5). in the event that USFWS makes a finding of Unforeseen
Circumstances and additional conservation and mitipation measures are deemed necessw to
respond to such Unforeseen Circumstances. USFWS may require Additional Conservation
Measures from Carlsbad where the HMP is being properly implemented. but only if such
measures are limited to modifications within the Preserve lands while maintaining the original
terms of the HMP to the maximum extent possible. Additional conservation and mitigation
measures shall not involve the commitment of additional land, water or financial compensation
or additional restrictions on the use of land, water or other natural resources without the consent
of Carlsbad.
B. Changed Circumstances.
(1) Changed Circumstances Defined. As provided in 50 C.F.R. 17.3,
the term “Chanped - Circumstances, means changes in circumstances affecting a species or the
geographic area covered by the HMP that can reasonablv be anticipated by Carlsbad, USFWS,
and CDFG and that can be Dlanned for in the HMP (e.g. the listing of a new non-covered species,
or a fire or other natural catastrophic event in areas prone to such events). Changed
circumstances and planned responses to those circumstances are described in Section G. of the
HMP.
.
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J2) Carlsbad - Initiated Response to Changed Circumstances.
Carlsbad will immediately notify USFWS and CDFG upon learning that any of the Changed
Circumstances listed in Section G of the HMP has occurred. and shall provide written notice
within seven (7) days. Within 30 days, Carlsbad shall modify its activities and shall require
affected third persons under its direct control to modify their activities, as appropriate to the
extent necessary to minimize and mitigate the effects of the Changed Circumstances. Carlsbad
shall report to USFWS and CDFG on its actions. Such modifications will be initiated without
awaiting notice from USFWS or CDFG. Such modifications are provided for in the HMP and do
not constitute Unforeseen Circumstances or require amendment of the Section 1 O(aM 1 )(B)
Permit, NCCP Authorization. or the HMP.
J3) USFWS-Initiated or CDFG-Initiated ResDonse to Changed
Circumstances. If USFWS or CDFG determines that Changed Circumstances have occurred and
that Carlsbad has not responded, the USFWS or CDFG will so notify Carlsbad and, as
appropriate, direct Carlsbad to make the required changes. Within thirty (30) days after
receiving such notice, Carlsbad, will make the required changes and report to USFWS and
CDFG on its action. Such changes are provided for in the HMP, and do not constitute
Unforeseen Circumstances or require amendment of the Section 1 O(a)(l )(B) Permit, NCCP
Authorization, or the HMP. The USFWS may extend the period of time in which to implement
Carlsbad’s planned responses upon Carlsbad’s showing of good cause, which extension will not
be unreasonably withheld.
11.4 Listing of species that are not HMP Covered Species. In the event that a
sDecies which is not an HMP Covered Species that may be affected by covered activities
becomes listed under the ESA, the USFWS will work with Carlsbad to identify measures, if any,
necessary to avoid take of, ieopardy to, or adverse modification of the critical habitat of. the
species as a result of covered activities. Carlsbad will implement these measures until the Take
Authorizations are amended to include such species, or until the USFWS notifies Carlsbad that
such measures are no longer needed to avoid ieopardy to, take of, or adverse modification of the
critical habitat of, the non-covered species.
1 1.5 Future Listings.
A. Consideration of the HMP and Similar Plans. To the extent required and
permitted by the ESA, the CESA and the NCCP Act, the USFWS and CDFG shall take into
account the species and habitat conservation provided under the HMP and this Agreement, and
the species and habitat conservation provided through all other existing conservation efforts
(including, but not limited to, other plans approved under the ESA, CESA, or NCCP Act, and
any relevant Conservation Agreements), as well as all information and data developed in the
course of these efforts which is made available to them, in any future determinations, and, with
respect to the CDFG, in any future recommendations fkom the CDFG to the California Fish and
Game Commission, concerning the potential listing as threatened or endangered of any HMP
Covered Species which is not so listed as of the Effective Date.
B. HMP Covered Species. If a HMP Covered Species is not listed as
threatened or endangered under the ESA as of the Effective Date, and becomes so listed during
the term of this Agreement, then the Section 10(a) Permit shall become effective with respect to
14
35
such species concurrent with its listing as threatened or endangered. If a HMP Covered Species
is not listed as threatened or endangered under the CESA as of the Effective Date, and becomes
so listed during the term of this Agreement or becomes accepted by the California Fish and
Game Commission as a candidate for such listing, then the CESA 2081 Permit and CESN/NCCP
Authorization shall become effective with respect to such species concurrent with its listing as
threatened or endangered or its acceptance by the California Fish and Game Commission as a
candidate for such listing.
C. Non-HMP Species. If a species which is not an HMP Covered Species is
subsequently proposed for listing as threatened or endangered under the ESA or CESA or is
accepted by the California Fish and Game Commission as a candidate for listing after the
Effective Date, and it is determined by the USFWS or CDFG based on reliable scientific
evidence that such species occupies the HMP Area, the USFWS or CDFG shall agree to so
notify Carlsbad. If Carlsbad provides written notification to USFWS and CDFG of its intent to
add the species to the Take Authorizations, then the parties will use reasonable efforts to: (1)
identify the conservation measures, if any, which are necessary to adequately protect the species,
and (2) determine whether such conservation measures are beyond those prescribed by the HMP.
Although such conservation measures may be identified after such species is proposed for listing,
Carlsbad may choose not to approve and implement such measures until the species is added to
the permit with the exception of those measures identified pursuant to Section 443 11.4 of this
Agreement. Upon application by Carlsbad meeting the requirements of the ESA, CESA and
NCCP Act, and following compliance with applicable procedures under those Acts, Incidental
Take of such species shall be authorized.
1. Adequate Conservation Measures Already in HMP. If the
conservation measures already contained in the HMP are adequate to hlfill the conservation
measures identified pursuant to subsection C above, as determined by USFWS and CDFG, then
upon application by Carlsbad for Take Authorization for such species and following satisfaction
of applicable review procedures as required by the ESA, CESA and NCCP Act, the Parties will
amend the HMP and this Agreement to add such species to the HMP Covered Species and Take
Authorizations, effective for the remaining term of the Take Authorization.
2. Inadequate Conservation Measures in the HMP.
a. Additional Conservation Measure Priorities. If the
conservation measures already contained in the HMP do not adequately fulfill the conservation
measures identified pursuant to subsection C above, then upon written request by Carlsbad, the
USFWS and CDFG will work with Carlsbad to identify the additional conservation measures
necessary to add such species to the HMP consistent with section E.3 of the HMP and the Take
Authorizations. Such additional conservation measures are not subject to or limited by the No
Surprises regulatory assurances. In developing a set of additional conservation measures, the
Parties will look to whether habitat management practices and enhancement opportunities within
the HMP Conserved Habitat Areas using existing management resources, provided the
redirection of such resources does not adversely affect any HMP Covered Species.
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b. Develouina Additional Conservation Measures. If the foregoing
options are not adequate to fulfill the conservation measures identified pursuant to subsection C
above, then the USFWS and CDFG will determine, consistent with the ESA, CESA and the
NCCP Act, those additional conservation measures necessary to add such species to the list of
HMP Covered Species, including measures beyond those required by the HMP. Among equally
effective conservation measures, preference will be given by the USFWS and CDFG to
conservation measures that do not require additional dedications of land. Although the additional
conservation measures necessary to add such species to the list of HMP Covered Species may be
identified at or after the species is proposed for listing subject to Section 444 11.4 of this
Agreement, Carlsbad will not be required to approve or implement these additional conservation
measures until such time as the species is added to Take Authorizations.
C. Application for Take Authorization. Carlsbad makes no
representation or commitment to pursue a Take Authorization for such non-HMP species, and in
the absence of any such Take Authorization, Carlsbad will comply with the Changed
Circumstances provisions of the HMP. The Take of such species will be governed by applicable
state and federal law.
11.6 Other Renulatow Permitting;.
A. Other Permits. Impacts to wetlands and wetland-dependent HMP Covered
Species shall be fully mitigated based on ratios determined as part of these separate permit
processes. The Parties acknowledge that proponents of land development projects in the HMP
Area may be subject to permit requirements of agencies not parties to this Agreement, and to
separate permit requirements which may be recommended or imposed by the USFWS or the
CDFG, such as under California Fish and Game Code sections 1601 and 1603 or Clean Water
Act Sections 404 and 401. With regard to impacts to jurisdictional waters of the United States,
impacts to wetlands shall be hlly mitigated based on ratios determined as part of the separate
404 and 401 federal permit processes. In addition, Carlsbad shall apply through the project
review and approval process avoidance standards and mitigation ratios sufficient to ensure no net
loss of wetland functions and values consistent with Section D.6 of the HMP.
B. Section 7 Consultations. To the maximum lawhl extent consistent with 50
CFR Part 402, in any consultation under Section 7 of the ESA involving Carlsbad and/or an
existing Third Party Beneficiary with regard to an HMP covered species, the USFWS shall
ensure that the biological opinion issued in connection with the proposed project which is the
subject of the consultation is consistent with the biological opinion issued in connection with the
HMP, provided that the proposed project is consistent with the HMP.
C. Consultations by CDFG. Due to the comprehensive nature of the HMP, to
the maximum lawful extent for projects and/or project impacts subject to the HMP, CDFG shall
not recommend or otherwise seek to impose through consultation with other public agencies any
mitigation, compensation or habitat enhancement requirements regarding the Take of HMP
Covered Species other than the requirements prescribed in and pursuant to the HMP and this
Agreement.
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D. Migratory Bird Treaty Act. The Section lO(a) Permit issued pursuant to
this Agreement also constitutes a Special Purpose Permit under 50 C.F .R. 0 21.27 for the Take
of those HMP Species which are listed as threatened or endangered under the ESA and which are
also protected by the Migratory Bird Treaty Act. The Take of such species in conjunction with
any public or private land development project authorized and approved by Carlsbad in
accordance with the HMP, this Agreement and the Take Authorizations will not be in violation
of the MBTA. Such Special Purpose Permit shall be valid for a period of three years fiom the
Effective Date, provided the Section 10(a) Permit remains in effect for such period. Such Special
Purpose Permit shall be renewed, provided that Carlsbad continues to fulfill its obligations under
the HMP, this Agreement and the Take Authorizations. Each such renewal shall be valid for the
maximum period of time allowed by 50 C.F.R. 5 21.27 or its successor at the time of renewal.
E. Fully Protected Birds. Although four fully protected birds (the American
peregrine falcon, California brown pelican, California least tern and light-footed clapper rail) are
included as HMP Covered Species, take of these species is prohibited by Fish and Game Code
section 35 11 and therefore cannot be authorized pursuant to Fish and Game Code section 2835.
CDFG acknowledges and agrees that if the measures set forth in the HMP, this Agreement, and
the Take Authorizations are fully complied with, the HMP Activities are not likely to result in
take (as defined in the California Fish and Game Code) of these species. In addition, CDFG has
found that impacts to the habitats of these species will be conserved and managed if the HMP,
this Agreement and the Take Authorizations are fully complied with. If CDFG discovers that the
conservation measures in the HMP are not adequate to prevent Take of one of the fully protected
species, CDFG shall notify Carlsbad in writing of such discovery and propose new, additional or
different conservation measures that is believes are necessary to avoid Take of these species to
comply with Fish and Game Code section 3511. Carlsbad shall implement such measures
proposed by CDFG or such other measures agreed to by the Parties as adequate to avoid
violation of this code section.
.
If at any time there is a change in state law such that the CDFG may issue a
CESA/NCCP Authorization or other permit allowing the Take of any species subject to
California Fish and Game Code sections 35 11, Carlsbad may apply for an amendment of the
CESA'NCCP Authorization for such species. In processing any such application for a permit
amendment or a new amendment, CDFG shall recognize Take avoidance and mitigation
measures already provided in the HMP and shall issue the amended authorization under the same
terms and conditions as the existing CESA/NCCP Authorization, to the extent permitted by law.
CDFG is similarly unable to authorize the take of two other species identified in
the HMP as species that may be added to the covered species list in the future: the golden eagle,
which is a fully protected bird under Fish and Game Code section 35 11, and the mountain lion,
which is protected under Fish and Game Code section 4700.
F. Future Environmental Documentation. In issuing any permits or other
approvals pertaining to land development activities within Carlsbad that affect HMP Covered
Species, and absent a finding of Unforeseen Circumstances under Section 11 of this Agreement,
and subject to the requirements of the National Environmental Policy Act ("NEPA"), the
USFWS shall rely on and shall utilize the NEPA document prepared in conjunction with the
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HMP as the NEPA environmental document for such permits and approvals and for any other
approval process subject to its jurisdiction or involvement with regard to potential impacts on
HMP Species. CDFG shall rely on and shall utilize the California Environmental Quality Act
("CEQA ") documents prepared in conjunction with the HMP and as appropriate CEQA
documentation for any future approvals regarding potential impacts to HMP Species related to
land development approvals within the HMP Area. .
1 1.7 Special Rules Under Section 4(d) In the event that the USFWS
promulgates a new special rule for a HMP Covered Species pursuant to Section 4(d) of the ESA
(16 U.S.C. I $ 1533(d), as implemented by 50 C.F.R. $ 17.31(c)), the USFWS shall consider the
HMP in developing the special rule, and shall ensure that the special rule will not affect the
validity or alter the terms of any Take Authorization for HMP Covered Species.
11.8 Mitigation Bank. As described in Section D.3.B of the HMP, the
HMP establishes a mitigation bank for City Capital Improvement projects (Appendix B) in
Carlsbad using Carlsbad's Lake Calavera property. The bank consists of 266.1 total acres. These
mitigation bank credits will be available to mitigate public projects undertaken by Carlsbad upon
completion of a Mitigation Bank Agreement. The parties shall enter into a mitigation bank
agreement consistent with State mitigation banking policy. As of the Effective Date, the
mitigation bank contains total credits of 206.55 acres which can be used to mitigate city projects
on an acre for acre basis for all impacts to HMP species and their habitats except impacts to
coastal sage scrub occupied by the gnatcatcher, southern maritime chaparral, maritime succulent
scrub and wetlands. Carlsbad shall ensure conservation of the Calavera property by granting a
conservation easement to CDFG or an acceptable third party.
11.9 Growth Inducing Impacts. Neither Carlsbad, nor any proponent of a
land development project approved by Carlsbad pursuant to the HMP, shall be required to
provide any additional mitigation beyond that required under the HMP for any growth inducing
impacts on the Covered Lands area that such project may have on a HMP Covered Species.
11.10 Critical Habitat. The USFWS agrees that it will consider the HMP in
its preparation of any proposed designation of critical habitat concerning any HMP Species, and
further agrees that consistent with 50 C.F .R. $ 424.12, the HMP incorporates special
management actions necessary to manage the HMP Species in a manner that will provide for the
conservation of the HMP species. Except as otherwise provided in this Agreement, and
consistent with the assurances provided under Section 11 of this Agreement, USFWS agrees that
if critical habitat is designated for any HMP Covered Species, and if Carlsbad is properly
implementing the HMP, then the USFWS shall not require through the ESA Section 7 (16 U.S.C.
$ 1536) consultation process that Carlsbad or the proponent of any land development project
approved by Carlsbad pursuant to the HMP commit additional land, additional land restrictions,
or additional financial compensation beyond that provided for under the HMP and pursuant to
this Agreement.
11.1 1 Duty to Enforce. Carlsbad agrees to take all actions within its
authority to enforce the terms of the Take Authorizations, the HMP, and this Agreement as to
itself and to all persons or entities subject to the requirements established by this Agreement,
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specifically including the development of permitting and approval requirements set forth in
Section 12 of this agreement. Furthermore, consistent with this Agreement Carlsbad shall
exercise the full extent of its legal authority to ensure that its local share of lands identified for
preservation under the HMP is conserved in perpetuity. Notwithstanding the term of this
Agreement, if at any time following the end of the term of this Agreement Carlsbad proposes to
exercise its discretionary authority to modify the regulatory protections or legal encumbrances
provided for such lands under the HMP, the proposed modifications shall be consistent with
Carlsbad's obligation to conserve such lands in perpetuity and must be accomplished through a
public process in which the public, the USFWS and CDFG receive advance notice and the
opportunity to comment, and must be consistent with the HMP such that there is no net loss of
habitat value or acreage for the HMP Covered Species. Carlsbad must promptly notify USFWS
and CDFG or their respective successor agencies of such proposed modifications in advance, and
explain how they achieve such consistency.
1 1.12 Severability from MHCP. As a result of the conservation measures
contained in the HMP which are not dependent on any regional or subarea plans or regional
funding, and because of Carlsbad's contribution to the MHCP Core area as described in Section
D.5 of the HMP, the Take Authorizations issued to Carlsbad pursuant to the HMP and this
Agreement are independent of
and severable from
other subarea plans and take authorizations which will be issued to other cities participating in
the MHCP.
...
12.0 OBLIGATIONS OF CARLSBAD
Carlsbad will fully and faithfully perfom all obligations assigned to it under this Agreement, the
HMP, and the Take Authorizations.
12.1 Preserve System. As of the Effective Date, there are approximately
8,758 acres of HMP Covered Species habitat remaining in the HMP Area. In order to obtain and
maintain its Take Authorizations, Carlsbad agrees to comply with and implement the HMP and
this Agreement. Specifically, as provided in the HMP, Carlsbad shall ensure the establishment
and management in perpetuity of a 6,757-acre preserve system, consisting of Existing Hardline
Areas, Proposed Hardline Areas, Standards Areas, Special Resource areas and the covered
parcels in the MHCP core area. Carlsbad agrees to adopt and implement those amendments to
the General Plan, Open Space Ordinance and Municipal Code described at Section 12.1 A and B
and 12.3 of this Agreement to fully implement the HMP. Carlsbad shall notify USFWS and
CDFG in writing and provide an opportunity to comment on any proposed changes or
amendments to the General Plan, Open Space Ordinance or Municipal Code 'that would affect
implementation of the HMP as amended pursuant to Section 12.3 of this Agreement. Carlsbad
shall prepare an analysis of the effect of the proposed change or Amendment on the HMP on
Carlsbad's ability to implement and achieve the conservation goals of the HMP. Carlsbad
acknowledges that any change or amendment to the General Plan, Open Space Ordinance or
Municipal Code that would adversely affect Carlsbad's ability to implement the HMP or achieve
19
the conservation goals of the HMP would be grounds for a reevaluation of Carlsbad’s Take
Authorizations under Section 20 of this Agreement.
A. Existing Hardline Areas. Existing Hardline Areas are areas which
were conserved and committed to habitat conservation prior to the Effective Date as a result of
existing open space regulations, past development approvals, existing incidental take permits and
associated agreements, or other actions. These areas, which total approximately 4,459 acres, are
described in Section D.3.A and depicted in Figure 5 of the HMP. Most of these areas are already
designated as open space and are subject to open space easements. Existing Hardline Areas will
continue to be preserved in perpetuity, and Carlsbad will amend its General Plan within 2
months of the Effective Date to designate them as biological open space if they are not already
so designated. Once designated as open space, the provisions of the Open Space and
Conservation Element of the General Plan shall apply which prohibits the removal of an open
space designation on areas so previously designated.
B. Proposed Hardline Areas.
1. Concept. Proposed Hardline Areas are areas where conservation and
development have been planned as part of the HMP in connection with specific public and
private projects. Upon approval by USFWS and CDFG of the HMP and execution of this
Agreement, Proposed Hardline Areas will obtain the same permanent conservation status as
Existing Hardline Areas through amendment of the Carlsbad General Plan to designate them as
Open Space. Appropriate open space and/or conservation easements shall also be placed on these
areas, Once designated as open space, the provisions of the Open Space and Conservation
Element of the General Plan shall apply which prohibits the removal of an open space
designation on areas so previously designated.
2. Specific Areas. The specific Proposed Hardline Areas consist of:
Carlsbad Municipal Golf Course, Carlsbad Police Training Range Project, Lake Calavera,
Veteran’s Memorial Park, Hub Park, the Zone 19 park, Manzanita Properties, Hub Park/SDG&E
south shore properties, Bressi Ranch, Carlsbad Oaks North Business Park, Holly Springs, Kelly
Ranch, South Coast, the Raceway Property, Hieatt, Fox-Miller, Calavera Heights, the Shelley
property, and the Kevane property. Carlsbad’s Lake Calavera property will be a public project
mitigation bank. These Proposed Hardline Areas, which total approximately 1,437 acres of
conserved habitat, are described in Section D.3.B of the HMP. Additional Hardline areas are
contained in Addendum #2 to the HMP.
C. Standards Areas. For some key properties which are not included in
either Existing Hardline Areas or Proposed Hardline Areas, the HMP specifies conservation
goals and standards which will apply to hture development proposals. Such goals and standards
are described in Section D.3.C of the HMP, and are organized according to individual Local
Facilities Management Zones and will be incorporated into the Carlsbad Municipal Code as
provided in Section 12.1 of this Agreement. Carlsbad will apply the standards specified in the
HMP at Section D(3)(C) of the Plan at the time of application for development entitlements, as
described in the HMP.
1
20
12.2 Project Mitigation Measures. In addition to assembling the preserve
system as described above, Carlsbad will enforce on all fbture land development projects in the
HMP Area additional measures to avoid, minimize, and mitigate impacts to HMP Covered
Species. Such measures are described in Table 9 and Appendix C of the HMP with mitigation
requirements specified in Table 11 of the HMP.
12.3 Regulatory Implementation Measures. Upon approval of the HMP and
execution by the Parties of this Agreement, Carlsbad will use its land-use authority to fully
implement the HMP as follows:
A. Immediately upon approval of the HMP and execution by the Parties of
this Agreement, Carlsbad will adopt an urgency ordinance pursuant to Government Code 4
65858 to require compliance with the HMP while permanent regulatory measures are drafted and
approved. No take shall be allowed under the Take Authorization until the urgency ordinance is
enacted.
B. Carlsbad will amend the Open Space and Conservation Element of its
General Plan to incorporate the HMP by reference within 12 months of the Effective Date.
C. Carlsbad will amend its Open Space Ordinance (Carlsbad Municipal Code
undevelopable open space lands preserved exclusively for conservation purposes consistent with
the HMP.
Carlsbad will amend its Municipal Code to add a new section to require
lands located within the Standards Areas to comply with the specific conservation standards
contained in Section D of the HMP within =months of the Effective Date.
9 21.53.230) to add Conserved Habitat Areas h as
D.
E. Carlsbad will amend its General Plan to make the conservation of habitat
as identified in the HMP a priority use for the 15% of otherwise developable land which the
GMP already requires be set aside for open space purposes.
F. Wetlands Protection Program. For Wetlands. impacts will be avoided to
the maximum extent practicable as set forth in Section D.6 of the HMP and in Sections D.7-6
and D.7-7 (Addendum #2 fdr the Coastal Zone.) Impacts that cannot be avoided shall be
minimized and mitigated in accordance with the wetland mitigation ratios set forth on Table 11
of the HMP. Mitigation consistent with the HMP will be identified through environmental
review documents prepared pursuant to CEOA and associated mitigation monitoring and
reporting programs. and required by the Citv as legally enforceable conditions of approval.
12.4 Additional Implementation Measures.
A. RecordKeePing. So long as this Agreement and the Take
Authorizations remain in effect, Carlsbad will continually account, by project and cumulatively,
for the amount and location of habitat acreage (by habitat type) lost and preserved within the
HMP Area, including acres conserved and acres committed to land development and incidental
take of HMP Covered Species. Habitat conservation under the HMP must proceed concurrently
21
with development. Carlsbad will also maintain its database of biological resources, updating it
periodically (at least once a year) and providing USFWS and CDFG with such updated
information at least once a year or more frequently, at USFWS's and CDFGs request.
B. Annual Review. The Parties will meet annually to monitor HMP
implementation, discuss pertinent issues, and coordinate activities relating to overall preserve
system monitoring, maintenance and planning.
C. Preserve Management and Monitoring Plan. As described in Section E.
5.B of the HMP, the City will prepare a Preserve Management and Monitoring Plan which will
address in detail the implementation of the preserve management and monitoring
recommendations identified in Section F of the HMP. The Plan shall be completed within one
year of the Effective Date. The plan shall be submitted to the USFWS and CDFG for review and
concurrence that the plan conforms to the HMP's conservation objectives. Promptly thereafter,
Carlsbad shall implement the plan, or if the entire plan does not receive concurrence, those
portions of the plan concurred in by USFWS and CDFG. The plan shall also include detailed
funding sources for Dreserve management including, but not limited to, Citv findinn of Citv-
owned land, developer endowments for private lands and existing finding mechanisms as
described in Section E of the HMP.
1. Carlsbad-initiated adaptive management. Carlsbad will implement
the adaptive management provisions in Section F and Appendix C of the HMP, when changes in
management practices are necessary to achieve the HMP's biological objectives, or to respond to
monitoring results or new scientific information. Carlsbad will make such changes without
awaiting notice from the USFWS or CDFG, and will report to the Service or CDFG on any
actions taken pursuant to this section.
2. USFWS or CDFG initiated adaptive management. If USFWS or
CDFG determines that one or more of the adaptive management provisions in the HMP are
required and that Carlsbad has not changed its management practices in accordan.ce with Section .
F and Appendix C of the HMP, USFWS or CDFG will so notify Carlsbad and will direct
Carlsbad to make the required changes. Within 30 days after receiving such notice, Carlsbad will
make the required changes and report to the USFWS and CDFG on its actions. Such changes are
provided for in the HMP.
12.5 Participation in Regional Conservation Efforts. Biological analyses
associated with the preparation of the North County Subregional Multiple Species Habitat
Conservation Plan (MHCP) have determined that a large (approximately 500 acre) biological
core area primarily for gnatcatcher habitat is needed in the southern, central portion of the
MHCP including the unincorporated area to the southeast of Carlsbad. In complete satisfaction
of its participation obligations concerning the MHCP core area Carlsbad will effectuate the
conservation and conveyance of 307.6 acres of land generally within the MHCP core area as
described in Sections D.5 and E.6.A of the HMP.
12.6 CooDerative Regional Implementation. Carlsbad will particbate in the
MHCP Elected Officials Committee which will be formed to coordinate subarea plan policies,
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subregional managinn and monitoring of preserve lands and regional funding. The Committee
will be formed once two or more MHCP cities have entered into implementing ameements with
USFWS.
13.0 MONITORING AND REPORTING
13.1 Planned Periodic Reuorts. As described in the HMP and in section 12.4 of
this agreement, Carlsbad will submit periodic reports describing its activities and results of the
preserve management and monitoring program provided for in the HMP .
13.2 Other reuorts. Carlsbad will provide, within 30 days of being requested by
the USFWS or CDFG, any additional information in its possession or control related to
implementation of the HMP that is requested by USFWS or CDFG for the purpose of assessing
whether the terms and conditions of the Take Authorizations and the HMP, including the HMP's
preserve management and monitoring plan to be developed in one year, are being fully
implemented.
13.3 Certification of Rmorts. All reports will include the following
certification fkom a responsible City official who supervised or directed preparation of the report:
I certify that, to the best of my knowledge, after appropriate
inquiries of all relevant persons involved in the preparation of this
report, the information submitted is true, accurate, and complete.
13.4 MonitorinP by USFWS and CDFG. The USFWS or CDFG may conduct
inspection and monitoring in connection with the permit in accordance with their regulations.
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1H.O ADAPTIVE MANAGEMENT
1%. 1 Reductions in mitigation. Carlsbad will not implement adaptive
management changes that may result in less mitigation than provided for the HMP Covered
Species under the original terms of the HMP, unless USFWS and CDFG first provide written
approval. Carlsbad may propose any such adaptive management changes by notice to USFWS
and CDFG, specifying the adaptive management modifications proposed, the basis for them,
including supporting data, and the anticipated effects on HMP Covered Species, and other
environmental impacts. Within 120 days of receiving such a notice, USFWS and CDFG will
either approve the proposed adaptive management changes, approve them as modified by the
USFWS and CDFG, or notify Carlsbad that the proposed changes constitute permit amendments
that must be reviewed under Section 232.2 of this Agreement.
153.2 No increase in take. This section does not authorize any modifications that
would result in an increase in the amount and nature of take, or increase the impacts of take, of
HMP Covered Species beyond that analyzed under the original HMP and any amendments
thereto. Any such modification must be reviewed as a permit amendment under Section 232.2 of
this agreement.
165.0 FUNDING
Carlsbad warrants that it has, and will, expend such hds as may be necessary to
fidfill its obligations under the HMP, including permanent management of the covered Habitat
Areas. Carlsbad will notify USFWS and CDFG of a material change in its ability to meet those
obligations. Funding associated with implementation of the HMP will be assured as follows:
165.1 MHCP Core Area Participation. As described in Section E.6.A of the
HMP, Carlsbad will effectuate the conservation and conveyance of 307.6 acres of land in the
MHCP core area. Funding for this land acquisition will be provided from the sources described
in Section E.6.A. of the HMP.
162.2 Preserve ManaPement Plan. Carlsbad will prepare a Preserve
Management Plan, described in Section 12.4C, above. The estimated total cost for Plan
preparation is $100,00&2 -h Cc
165.3. Management of the Habitat at the Lake Calavera Citv Mitigation Bank.
Carlsbad's cost for management of public lands at Lake Calavera is estimated to cost
24
approximately $18,750 per year in 1999 dollars and will be adjusted annually in the future for
inflation. Notwithstanding this estimate, Carlsbad will fimd management of the Lake Calavera
Mitigation Bank consistent with Section F of the HMP in perpetuity. This cost will be paid for
using city funds. Funding of the management of existing Hardline Habitat Conservation areas
will be provided as described in existing conditions of project approvals.
165.4 Prorrram Administration. Carlsbad's administration of the HMP is
estimated to cost approximately $50,000 per year in 1999 dollars and will be adjusted as
necessary for inflation and as otherwise necessary to properly implement the HMP. This cost
will be paid for using city funds or funds raised by a Habitat In-Lieu Mitigation Fee, described
below.
165.5 Habitat In-Lieu Mitigation Fee. To offset its costs in preparing and
implementing the HMP, and to provide fhding for the conveyance and management of land in
the MHCP core area, Carlsbad will establish a Habitat In-Lieu Mitigation Fee consistent with
Section E.6 of the HMP. If for any reason Carlsbad is unable to enact such a Habitat In-Lieu
Mitigation Fee, or such fee cannot be enforced, or fhds collected under the fee are insufficient
to provide fbnding for the conveyance and management of land in the MHCP core area, Carlsbad
shall remain obligated to ensure that the HMP is fully funded, including permanent management
of the Conserved Habitat Areas.
165.6 Limits on Funding. Carlsbad is not required to make any public
acquisition of privately owned habitat lands within Carlsbad beyond the acquisitions identified in
Section D.5 of the HMP provided that all publicly funded projects must be mitigated in
accordance with Table 11 and Section E of the HMP, unless Carlsbad chooses to acquire land or
mitigation credits to provide additional mitigation for public facility projects.
176.0 OBLIGATIONS OF USFWS AND CDFG
136.1 Obligations of USFWS. Upon execution-of this Agreement by all parties
and satisfaction of all other applicable legal requirements, USFWS will issue Carlsbad a permit
under Section lO(a)(l)(B) of the ESA, authorizing incidental take by Carlsbad of the HMP
Covered Species resulting from covered activities on the covered lands. The USFWS shall
include in its annual budget request sufficient funds to fulfill its obligations under the HMP, this
Agreement and the Section 1 O(a) permit.
lXj.2 Obligations of CDFG. Upon execution of this Agreement by all parties
satisfaction of all other applicable legal requirements, CDFG will issue Carlsbad a CESA 2081
Permit and a CESAMCCP Authorization incidental take by Carlsbad of HMP Covered Species
resulting from covered activities on the covered lands. The CDFG shall include in its annual
budget request sufficient funds to fulfill its obligations under the HMP, this Agreement, the
CESA 2081 Permit and CESAMCCP Authorization. In consultation with USFWS, CDFG shall
prepare and implement a management plan for those portions of conservation habitat areas under
its jurisdiction and control. The management plan shall be consistent with Section F of the HMP.
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187.0 ENVIRONMENTAL REVIEW
182.1 Federal Law - NEPA. Issuance of a Section lO(a) Permit to Carlsbad by
USFWS is an action subject to the National Environmental Policy Act ("NEPA"). USFWS is a
lead agency under NEPA. An Environmental Assessment has been prepared pursuant to NEPA,
the HMP has been evaluated uursuant to NEPA as a Subarea Plan under the MHCP Subregional
Plan Final EIEUEIS (March, 2003) and an Addendum to the EIEUEIS was Dreuared for final
revisions to the HMP.
187.2 State Law - CEOA. Implementation of the HMP is an action subject to
CEQA. Carlsbad is a lead agency for the project and has prepared an Environmental Checklist
and Mitigated Negative Declaration in accordance with CEQA requirements. In addition. the
HMP was evaluated pursuant to CEOA as a Subarea Plan under the MHCP Subregional Plan
Final EREIS (March 2003). CDFG is a responsible agency for purposes of approving the HMP
under CESA and the NCCP Act.
198.0 ISSUANCE OF THE PERMIT
198.1 Findinns - USFWS. Following opportunity for and consideration of public
comments received regarding the HMP, the USFWS has found that:
A. Incidental Take. Any permitted taking of the HMP Covered
Species pursuant to the HMP and the Section 1O(a) Permit will be incidental to the carrying out
of otherwise lawfbl activities.
B. Minimize and Mitigate. The HMP and this Agreement will, to the
maximum extent practicable, minimize and mitigate the impacts of such incidental taking.
C. Adequate Fundinn. The 'fbnding sources identified and provided
for herein will ensure that adequate funding for the HMP will be provided.
D. No Jeopardy. Any permitted taking of HMP Covered Species
pursuant to the HMP will not appreciably reduce the likelihood of the survival and recovery of
the HMP Covered Species in the wild.
E. Other Measures. Other measures set forth in the HMP and required
by the USFWS as being necessary and appropriate for the purposes of the HMP (including those
measures described in Section G of the I-IMP to respond to Changed Circumstances and
measures determined by the Parties to be necessary to deal with Unforeseen Circumstances) will
be fulfilled.
198.2 Issuance of Take Authorization - USFWS. USFWS has issued such
findings in support of the granting of the Section lO(a) Permit authorizing the incidental take of
the HMP Covered Species. Such Section 1O(a) Permit shall be issued on the Effective Date, and
this Agreement shall become effective and binding on the Parties on the date the Section 1O(a)
Permit is issued.
26
198.3 Findings - CDFG. The CDFG has found, following opportunity for public
comment, that the HMP and this Agreement (1) adequately provide for the conservation and
management of the HMP Covered Species and their habitat within the HMP Area, (2) satisfy all
legal requirements under both CESA and the NCCP Act necessary for the CDFG to issue a
CESA 2081 Permit and CESA/NCCP Authorization for the HMP Covered Species, and (3) are
consistent with the NCCP Process and Conservation Guidelines. The CDFG has found that the HMP meets the requirements of the NCCP Act for an NCCP Plan, and has approved the HMP as
an NCCP Plan. For CEQA purposes, the CDFG has found further that the HMP and this
Agreement provide adequately for the mitigation of potential "significant effects on the
environment" (as defined in California Public Resources Code 0 21068) which may result to
HMP Covered Species and their habitat from the land development activities in the HMP Area.
.
198.4 Issuance of Take Authorizations - CDFG. Concurrent with the Effective
Date, the CDFG will issue its approval of the HMP and CESA 2081 Permit and CESA/NCCP
Authorization which authorizes the Incidental Take of HMP Covered Species in the HMP Area,
subject to the terms of the €IMP and this Agreement.
196.5 Findings -Section 4(d) Special Rule. The USFWS has found that the HMP
meets the standards set forth in 50 C.F .R. 0 17 .32(b)(2) and is consistent with and satisfies the
conditions under the Section 4(d) Special Rule, and therefore the Incidental Take of the coastal
California gnatcatcher within the HMP Area is lawful except as otherwise provided in this
Agreement.
20B.O REMEDIES AND ENFORCEMENT
?0B. 1 Remedies In General. Except as set forth below, each Party shall
have all remedies otherwise available to enforce the terms of this Agreement, the Permit, and the
HMP.
.
A. No Monetw Damages. No Party shall be liable in damages to any other
Party or other person for any breach of this Agreement, any performance or failure to perform a
mandatory or discretionary obligation imposed by this Agreement, or any other cause of action
arising from this Agreement. '
1. Land Owner Liability. All Parties shall retain whatever liability
they possess as an owner of interests in land and for its present and future acts or failure to act
without the existence of this agreement.
2. Resuonsibilitv of the United States. Nothing contained in this
Agreement is intended to limit the authority of the United States government to seek civil or
criminal penalties or otherwise fulfill its enforcement responsibilities under the ESA.
3. Responsibilitv of the State of California. Nothing contained in this
Agreement is intended to limit the authority of the State of California to seek civil or criminal
27 48
B. Iniunctive and Temporarv Relief. The Parties acknowledge that the HMP
Covered Species are unique and that their loss as species would be irreparable and therefore
injunctive and temporary relief may be appropriate in certain instances involving a breach of this
Agreement.
249.0 PERMIT REMEDIES
249.1 - A. The CESA/NCCP Authorization.
1. Suspension.
a. Authorization Suspension. In the event of any material
violation of the CESNNCCP Authorizations or material breach of this Agreement, by Carlsbad
the CDFG may suspend the CESNNCCP Authorizations whole or in part; provided, however,
that it may not suspend the CESNNCCP Authorization without first (1) requesting that Carlsbad
take appropriate remedial actions, and (2) providing Carlsbad with written notice of the facts or
conduct which may warrant the suspension and an adequate and reasonable opportunity for
Carlsbad to demonstrate why suspension is not warranted or to take steps necessary to cure the
violation or breach.
b. Reinstatement of Suspended Authorization. In the event the
CDFG suspends the CESNNCCP Authorization in whole or in part, as soon as possible but no
later than ten (10) days after such suspension, the CDFG shall confer with Carlsbad concerning
how the violation or breach that led to the suspension can be remedied. At the conclusion of any
such conference, the CDFG shall identify reasonable specific actions necessary to effectively
redress the violation or breach. In making this determination the CDFG shall consider the
requirements of the CESA and/or NCCP Act, regulations issues hereunder, the conservation
needs of the Covered Species, the terms of the CESA/NCCP Authorization and of this
Agreement and any comments or recommendations received during the meet confer process. As
soon as possible, but no later than thirty (30) days after the conference, the CDFG shall send
Carlsbad written notice of the reasonable actions necessary to effectively redress the violation or
breach. Upon full or substantial performance of such necessary actions, the CDFG shall
immediately reinstate the CESA/NCCP Authorization. It is the intent of the Parties that in the
event of any suspension of the CESA/NCCP Authorization all parties shall act expeditiously and
cooperatively to reinstate the CESA/NCCP Authorization.
'
2. Authorization Revocation or Termination.
a. The CDFG may only revoke or terminate the CESA/NCCP
Authorization for a partial violation of the CESA/NCCP Authorization or material breach of this
Agreement by the Carlsbad, and only if the CDFG determines in writing that (a) such violation
or breach cannot be effectively redressed by other remedies or enforcement action, or (b)
revocation or termination is required to avoid jeopardizing the continued existence of an HMP
Covered species and to fulfill a legal obligation of the CDFG under the CESA and/or NCCP Act.
28 4?
b. The CDFG agrees that it will not revoke or terminate the
CESA/NCCP Authorization without first (a) requesting that Carlsbad take appropriate remedial
action, and (b) providing Carlsbad with notice in writing of the facts or conduct which warrant
the revocation or termination and a reasonable opportunity but not less than sixty (60) days) to
demonstrate or achieve compliance with the CESA, the NCCP Act, the CESA/NCCP
Authorization and this Agreement.
B. Section 1O(a) Permit.
1. Suspension
a. USFWS may suspend or revoke the Section lO(a) Permit
for cause in accordance with the laws and regulations in force at the time of such suspension or
revocation. Such suspension or revocation may apply to the entire permit, or only to specified
HMP Covered Species, covered lands or covered activities. In the event of suspension or
revocation, Carlsbad's obligations under this agreement and the HMP will continue until the
USFWS determines that all take of HMP species that occurred under the permit has been fully
mitigated in accordance with the HMP. Except where the USFWS determines that emergency
action is necessary to protect HMP Species, it will not suspend the Section 1O(a) Permit without
first:
1. Requesting Carlsbad to take appropriate remedial,
enforcement, or management actions; and
2. Providing Carlsbad notice in writing of the facts or
conduct which may warrant the suspension and a reasonable opportunity for Carlsbad to
demonstrate or achieve compliance with the Section 1O(a) Permit or this Agreement.
b. Reinstatement Following Suspension. In the event the
Section lO(a) Permit is suspended, in whole or in part, as soon as possible, but no later than ten
(10) working days after any suspension, the USFWS shall consult with Carlsbad concerning
actions to be taken to effectively redress the violation that necessitated the suspension. At the
conclusion of such consultation, the USFWS shall make a determination of the actions necessary
to effectively redress the violation. In making this determination the USFWS shall consider the
requirements of the ESA, regulations issued hereunder, the conservation needs of the HMP
Covered Species, the terms of the Section 1O(a) Permit and of this Agreement, and any
comments or recommendations received during the consultations. As soon as possible, but not
later than thirty (30) days after the conclusion of the consultations, the USFWS shall transmit to
Carlsbad written notice of the actions necessary to effectively redress the violation. Upon full
performance of the necessary actions specified by the USFWS in its written notice, the USFWS
shall immediately reinstate the Section 10(a) Permit or the suspended portion thereof. It is the
intent of the Parties that in the event of any total or partial suspension of the Section lO(a) Permit
all Parties shall act expeditiously to cooperate to resolve the suspension.
2. 1 O(a) Revocation. Consistent with 50 C.F.R. sections 13.27-13.29,
17.22(b)(8) and 17.32(b)(8), the USFWS will revoke the Section lO(a) permit, in whole or in
29
part, only (a) for a violation of the Section lO(a) permit by Carlsbad where Carlsbad fails to cure
the violation after receiving actual notice of it from USFWS and a reasonable opportunity (but
not less than sixty (60) days) to cure it, or the USFWS determines in writing that such violation
cannot be effectively redressed by other remedies or enforcement action; or (b) where revocation
of the permit, in whole or in part, is necessary to avoid the likelihood of jeopardy to an HMP
Covered Species.
3. In the event of suspension or revocation of the Section lO(a)
permit, Carlsbad will remain obligated to fulfill its mitigation, enforcement and management
obligations and its other HMP obligations in accordance with this Agreement and the HMP until
USFWS determines that all take of HMP Covered Species that occurred under the permit has
been fully mitigated in accordance with the HMP. For purposes of this paragraph, unlisted HMP
species will be treated as though they were listed species in determining the amount of take and
the mitigation required.
221.0 TERMINATION
221.1 Upon 90 days written notice to USFWS and CDFG, Carlsbad may
unilaterally withdraw from this Agreement provided:
A. Carlsbad has complied with all mitigation obligations incurred under the
Take Authorizations in full compliance with the HMP and this Agreement up to the date of
withdrawal, and Carlsbad provides written evidence of such compliance to USFWS and CDFG;
and
B. Carlsbad shall remain obligated to carry out all of its long term
management and monitoring obligations assumed under the HMP and this Agreement with
respect to habitat conserved, or required to be conserved, under the HMP prior to Carlsbad s
withdrawal from the Agreement.
221.2 Carlsbad’s withdrawal fiom this Agreement will result in termination of
the Take Authorizations as to all projects or activities not yet approved by Carlsbad and not yet
mitigated for at the time of withdrawal.
221.3 Carlsbad’s withdrawal fiom this Agreement shall not affect the obligations
of Carlsbad with respect to mitigation lands or other lands owned or controlled by Carlsbad and
conserved or required to be conserved, under the HMP.
221.4 Any Incidental Take associated with land development projects approved
by Carlsbad for which mitigation has been assured as provided in Section D of the HMP shall
continue to be authorized under the terms of the Take Authorizations provided Carlsbad
continues to carry out its obligations under this Agreement with respect to such Take as provided
in Section 24Q.B.3 and this Section 221 of this Agreement.
221.5 Carlsbad’s withdrawal from this Agreement shall not affect the obligations
of the Parties with respect to mitigation lands or other lands owned or controlled by Carlsbad and
30
5--/
conserved or required to be conserved, under the HMP, provided that Carlsbad shall be entitled
to full credit against all public projects intended to be benefited by such mitigation lands,
232.0 PLAN AMENDMENTS
232.1 Minor Amendments. Any party may propose minor amendments to the
HMP or this Agreement pursuant to Section E-3 of the HMP by providing notice to all other
parties. Such notice shall include a statement of their reason for the proposed amendment and an
analysis of its environmental effects, including its effects on operations under the HMP and on
the HMP species. With the exception of equivalency findings which are addressed separately in
paragraph (4) of this section, proposed modifications will become effective upon all other parties
written approvals. If, for any reason, a receiving party objects to a proposed minor amendment, it
must be processed as a major amendment of the permit in accordance with this section. The
USFWS and CDFG will not propose or approve minor amendments to the HMP or this
Agreement if the USFWS and CDFG determine that such amendments would result in
operations under the HMP that are significantly different from those analyzed in connection with
the original HMP, adverse effects on the environment that are new or significantly different from
those analyzed in connection with the original HMP, or additional take not analyzed in
connection with the original HMP. Minor amendments to the HMP and this Agreement
processed pursuant to this subsection may include but are not limited to the following:
(1) corrections of typographic, grammatical, and similar editing errors
that do not change the intended meaning;
(2) correction of any maps or exhibits to correct errors in mapping or
to reflect previously approved changes in the Take Authorizations or HMP;
. (3) minor changes to survey, monitoring or reporting protocols;
(4) Equivalency findings as described in Section E.3 of the HMP,
which are minor changes to HMP maps to show actual, precise boundaries of conserved habitat,
and which do not reduce the acreage or quality of the habitat. Carlsbad will provide written
notice of the Equivalency Findings to USFWS and CDFG, and unless USFWS and CDFG object
within 30 days after notification, the change will be considered approved. If objections are
raised, the City will meet the agencies to resolve the issue; and written approval of the resulting
change will be required;
232.2 Maior Amendments. The Take Authorizations may be amended in
accordance with all legal requirements, including but not limited to ESA, CESA, NEPA and
CEQA, and the USFWS and CDFG's permit regulations. Removal of lands from conserved
areas, or reconfiguration of Hardline Areas resulting in a decrease of acreage or quality of
habitat, shall constitute a Major Amendment. Once the subregional MHCP is completed and/or
as additional biological analysis and information becomes available, additions to the HMP
Covered Species list contained in Table 2 of the HMP shall also require a Major Amendment to
the Plan. Major Amendments shall require environmental review and will be subject to the
amendment process described in Section E.3(D) of the HMP.
31
232.3 Standards Areas. The habitat conservation planning for any properties
located in the Standards Areas and the conversion of such properties to Proposed Hardline Areas,
shall be processed through a Consistency Finding as described in Section E.3.B of the HMP.
232.4 City Proiects. Certain Carlsbad projects are covered by Proposed
Hardlines, and are automatically permitted under the Take Authorizations as of the Effective
Date provided all conservation-associated mitigation is assured. All other Carlsbad projects shall
be considered and processed through Consistency Findings as described in Section E.3.B of the
HMP.
243.0 FORCE MAJEURE
243.1 In the event that Carlsbad is wholly or partially prevented from
performing obligations under this Agreement because of unforeseeable causes beyond the
reasonable control of and without the fault or negligence of Carlsbad ("force majeure"),
including but not limited to acts of God, labor disputes, sudden actions of the elements, actions
of federal or state agencies or other local jurisdictions, Carlsbad shall be excused from whatever
performance is affected by such unforeseeable causes to the extent so affected, and such failure
to perform shall not be considered a material violation or breach, provided that nothing in this
Section shall be deemed to authorize any Party to violate ESA or CESA or to excuse the
performance by Carlsbad of any obligation necessary to avoid the likelihood of jeopardy to an
HMP Covered Species, and provided further that:
A. The suspension of performance is of no greater scope and no longer
duration than is required by the force majeure;
B. Within two weeks after the occurrence of the force majeure Carlsbad gives
the USFWS and CDFG written notice describing the particulars of the occurrence;
C. Carlsbad uses its best efforts to remedy its inability to perform (however,
this paragraph shall not require the settlement of any strike, walk-out, lock-out or other labor
dispute on terms which in the sole judgment of Carlsbad are contrary to its interest); and
D. When Carlsbad is able to resume performance of its obligations, Carlsbad
shall give USFWS and CDFG written notice to that effect.
243.2 Changed Circumstances Not Subject to Force Majeure Section. Events or
causes identified as Changed Circumstances in the HMP are not considered unforeseeable events
or Acts of God within the meaning of this Section 203 and Carlsbad shall be responsible for
implementing the responses to Changed Circumstances provided for in the HMP in accordance
with Section 44 11 of this Agreement.
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254.0 MISCELLANEOUS PROVISIONS.
254.1 No Partnership. Except as otherwise expressly set forth herein, neither this
Agreement nor the HMP shall make or be deemed to make any Party to this Agreement the agent
for or the partner of any other Party.
254.2 Successors and Assigns. This Agreement and each of its covenants and
conditions shall be binding on and shall inure to the benefit of the Parties and their respective
successors and assigns. Assignment or other transfer of the Permit shall be governed by
USFWS's and CDFG's applicable regulations. Carlsbad may only assign its rights and
obligations under this Agreement with the approval of the USFWS and CDFG, which approval
shall not be unreasonably withheld.
2s.3 Notice. Any notice permitted or required by this Agreement shall be
delivered personally to the persons set forth below or shall be deemed given five (5) days after
deposit in the United States mail, certified and postage prepaid, return receipt requested, and
addressed as follows or at such other address as any Party may from time to time specifj. to the
other Parties in writing. Notices may be delivered by facsimile or other electronic means,
provided that they are also delivered personally or by certified mail. Notices shall be transmitted
so that they are received within the specified deadlines.
City:
CDFG:
USFWS:
254.4 Entire Ameement. This Agreement, together with the HMP and the Take
Authorizations, constitutes the entire agreement among the Parties. It supersedes any and all
other agreements, either oral or in writing, among the Parties with respect to the subject matter
hereof and contains all of the covenants and agreements among them with respect to said
matters, and each Party acknowledges that no representation, inducement, promise or agreement,
oral or otherwise, has been made by any other Party or anyone acting on behalf of any other
Party that is not embodied herein.
2H.5 Elected Oficials Not to Benefit. No member of or delegate to Congress
shall be entitled to any share or part of this Agreement, or to any benefit that may arise from it.
254.6 Availabilitv of Funds. Implementation of this Agreement and the HMP
and the assurances provided therein, by the USFWS is subject to the requirements of the Anti-
Deficiency Act and the availability of appropriated funds. Nothing in this Agreement will be
construed by the Parties to require the obligation, appropriation, or expenditure of any money
from the U.S. Treasury. The Parties acknowledge that the USFWS will not be required under this
Agreement to expend any Federal agency's appropriated funds unless and until an authorized
official of that agency affirmatively acts to commit to such expenditures as evidenced in writing.
Implementation of this Agreement and the HMP and the assurances provided therein, by CDFG
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is subject to the availability of appropriated funds. Nothing in this agreement will be construed
by the Parties to require the obligation, appropriation, or expenditure of any money form the
Treasury of the State of California. The Parties acknowledge that CDFG will not be required
under this agreement to expend any State of California agency’s appropriated funds unless and
until an authorized officer of that agency affirmatively acts to commit to such expenditures as
evidenced in writing.
2g.7 Dudicate Originals. This Agreement may be executed in any number of
duplicate originals. A complete original of this Agreement shall be maintained in the official
records of each of the Parties hereto.
254.8 Governing Law. The terms of this Agreement shall be governed by and
construed consistent with the statutory and regulatory authority of USFWS under ESA, its
implementing regulations and other applicable laws and of CDFG under CESA, the NCCP Act
and other applicable state laws and regulations. In particular nothing in this Agreement is
intended to limit the authority of the USFWS to seek penalties or otherwise hlfill its
responsibilities under the ESA or CDFG under CESA or other applicable law. Moreover, nothing
in this Agreement is intended to limit or diminish the legal obligations and responsibilities of the
USFWS as an agency of the Federal government or of CDFG as an agency of the State of
California.
254.9 Reference to Rerrulations. Any reference in this Agreement, the HMP, or
the Permit to any regulation or rule of USFWS shall be deemed to be a reference to such
regulation or rule in existence at the time the action is taken. Any reference in this Agreement,
the HMP, or the State permit to any regulation or rule of CDFG shall be deemed to be in
reference to such regulation or rule in existence at the time the action is taken.
253.10 Amlicable Laws. All activities undertaken pursuant to this Agreement,
the HCP, or the Permit must be in compliance with all applicable State and Federal laws and
regulations.
254.1 1 No Third Partv Beneficiaries. Without limiting the applicability of rights
granted to the public pursuant to the ESA, CESA or other federal or state law, this agreement
shall not create any right or interest in the public, or any member thereof, as a third-party
beneficiary hereof, nor shall it authorize anyone not a party to this agreement to maintain a suit at
law or equity pursuant to the provisions of this agreement. The duties, obligations, and
responsibilities of the parties to this agreement with respect to third parties shall remain as
imposed under existing law.
.
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IN WITNESS WHEREOF, THE PARTIES have executed this Implementing
Agreement to be in effect as of the Effective Date.
Date: ,20003.
Date: ,20003.
CARLSBAD
BY City Manager
California Department of Fish and Game
Date: ,20003. California&Jevada Operations Office
United States Fish and Wildlife Service
BY Deputy Manager
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