HomeMy WebLinkAbout2004-11-09; City Council; Resolution 2004-3641
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RESOLUTION NO. 2004-364
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE MAYOR TO
SIGN THE IMPLEMENTING AGREEMENT FOR THE HABITAT
MANAGEMENT PLAN.
WHEREAS, the City of Carlsbad has prepared a plan known as the Habitat
Management Plan (HMP) whose purpose is to provide for both the conservation of wildlife and
the orderly development of urban uses consistent with the General Plan; and
WHEREAS, the City is seeking Incidental Take Permits from the US. Fish and
Wildlife Service and California Department of Fish and Game, based on the conservation
measures stated in the HMP; and
WHEREAS, an essential component of the Incidental Take Permit is execution of
an Implementing Agreement between the parties to provide mutual assurances that the plan will
be carried out; and
WHEREAS, on June 17, 2003, the City Council previously reviewed a draft of the
Implementing Agreement; and
WHEREAS, final draft of the Agreement is now ready for execution by all parties
and is attached hereto.
NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City
of Carlsbad, California, as follows:
1.
2.
That the above recitations are true and correct.
The Implementing Agreement as contained in Attachment A to this resolution is
approved, and the Mayor is authorized to sign the agreement.
The Planning Director is authorized to accept the IO-A Take Permit with
conditions only consistent with the Endangered Species Act, the Habitat Management Plan, the
Subarea Plan of the North San Diego County Multiple Habitat Conservation Plan and the
Implementing Agreement and no others.
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4. Staff is directed to immediately begin implementation of the HMP as described in
the Implementing Agreement
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad City
Council held on the 9th day Of November , 2004, by the following vote,
to wit:
AYES: Council Members Lewis, Finnila, Hall and Packard.
NOES: None
ABSENT: Council Member Kulchin.
ABSTAIN None
ATTEST:
(SEAL)
-2-
IMPLEMENTING AGREEMENT
by and among
THE CITY OF CARLSBAD, THE CALIFORNIA DEPARTMENT OF HSH 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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TABLE OF CONTENTS
RECITALS .............................................................................................................. 1
PURPOSE ............................................................................................................... 3
DEFINITIONS ........................................................................................................ 4
HABITAT CONSERVATION PLANNCCP PLAN ............................................. 8
INCORPORATION OF HMP ................................................................................ 8
LEGAL AUTHORITY OF THE USFWS .............................................................. 8
LEGAL AUTHORITY OF THE CDFG ................................................................. 9
COOPERATIVE EFFORT ..................................................................................... 9
TERM ...................................................................................................................... 9
MUTUAL ASSURANCES ................................................................................... 10
10.1
10.2
10. 3
Compliance with Applicable Laws ........................................................... 10
Conservation of HMP Covered Species .................................................... 10
Assurances of USFWS and CDFG ........................................................... 10
A . Unforeseen Circumstances .................................................................. 10
B . Changed Circumstances ...................................................................... 12
C . Judicial Limitation ........................................................... 13
Future Listings .......................................................................................... 13
A . Consideration of the HMP, MHCP and Similar Plan .......................... 13
10 . 4
B . Non-HMP Covered Species ................................................................. 14
Other Regulatory Permitting ..................................................................... 15 10 . 5
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A . Other Permits ................................................................................. 15
B . Section 7 Consultations ................................................................. 15
C . Consultations by CDFG ................................................................ 15
D . Migratory Bird Treaty Act ............................................................ 15
E . State Fully Protected Species ........................................................ 16
F . Future Environmental Documentation .......................................... 16
10 . 6 Special Rules Under Section. 4(d) ............................................................. 17
10 . 7 Mitigation Bank ......................................................................................... 17
10 . 8 Growth Inducing Impacts .......................................................................... 17
10 . 9 Critical Habitat .......................................................................................... 17
10.10 Duty to Enforce ......................................................................................... 18
10.11 Severability from MHCP .......................................................................... 18
1 1 . 0 OBLIGATIONS OF CARLSBAD ............................................................................ 18
11.1
11.2
11.3
11.4
11.5
11.6
Preserve System ........................................................................................ 18
A . Existing Hardline Areas ................................................................ 19
B . Proposed Hardline Areas ............................................................... 19
C . Standards Areas ............................................................................. 19
Project Mitigation Measures ..................................................................... 20
Regulatory Implementation Measures ...................................................... 20
Additional Implementation Measures ....................................................... 20
Participation in Regional Conservation Efforts ........................................ 21
Cooperative Regional Implementation ...................................................... 21
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12.0 MONITORING AND REPORTING ........................................................................ 21
12.1 Record Keeping ......................................................................................... 21
12.2 Annual Reporting and Meeting ................................................................. 21
12.3 Preserve Management and Monitoring Plan ............................................. 22
12.4 Other Reports ............................................................................................ 22
Certification of Reports ............................................................................. 22
Monitoring by USFWS and CDFG ........................................................... 22
12.5
12.6
13 . 0 ADAPTIVE MANAGEMENT ................................................................................. 22
Reductions in mitigation ........................................................................... 22
No increase in take .................................................................................... 23
14.0 FUNDING ................................................................................................................. 23
13.1
13.2
14.1
14.2
14.3
MHCP Core Area Participation ................................................................. 23
Preserve Management and Monitoring Plan ............................................. 23
Management of the Habitat at the Lake Calavera City Mitigation Bank
and other City-Owned Public Lands ........................................................ 23
Management of Private Lands in the Habitat Preserve ............................. 23
Management of Existing Habitat Preserve Areas ..................................... 24
14.6 Program Administration ............................................................................ 24
Habitat In-Lieu Mitigation Fee ................................................................. 24
Limits on Funding ..................................................................................... 24
14.4
14.5
14.7
14.8
15.0 OBLIGATIONS OF USFWS AND CDFG .............................................................. 24
Obligations of USFWS .............................................................................. 24 15.1
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15.2 Obligations of CDFG ................................................................................ 25
16.0 ENVIRONMENTAL REVlEW ................................................................................ 25
16.1
16.2
Federal Law -NEPA ................................................................................. 25
State Law -CEQA ..................................................................................... 25
i7.0 REMEDIES AND ENFORCEMENT ....................................................................... 25
Remedies in General ................................................................................. 25 17.1
A . No Monetary Damages ........................................................................ 25
B Injunctive and Temporary Relief 26 . ........................................................
18.0 PERMIT REMEDIES ............................................................................................... 26
The NCCP Permit ...................................................................................... 26 18.1
18.2 1O(a) Permit ............................................................................................... 27
19.0 TERMINATION ....................................................................................................... 28
20.0 PLAN AMENDMENTS ........................................................................................... 29
20.1 Minor Amendments ................................................................................... 29
20.2 Major Amendments ................................................................................... 29
20.3 Standards Areas ......................................................................................... 30
20.4 City Projects .............................................................................................. 30
......................................................................... 2 1 . 0 MISCELLANEOUS PROVISIONS 30
21.1 No Partnership ........................................................................................... 30
21.2 Successors and Assigns ............................................................................. 30
21.3 Notice ........................................................................................................ 30
21.4 Entire Agreement ...................................................................................... 30
Elected Officials Not to Benefit? ............................................................... 31 21.5
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21.6
21.7
21.8
21.9
21.10
21.11
21.12
21.13
Availability of Funds ................................................................................. 31
Duplicate Originals ................................................................................... 31
Governing Law ........................................................................................... 31
Reference to Regulations .......................................................................... 31
Applicable Laws ........................................................................................ 31
No Third Party Beneficiaries ...................................................................... 31
Attorneys’ Fees ......................................................................................... 32
Due Authorization ..................................................................................... 33
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EXHIBITS
EXHIBIT A - Species Proposed for Coverage under the Carlsbad Subarea Plan
EXHIBIT B - Response to Changed Circumstances
EXHIBIT C - Urgency Ordinance
EXHIBIT D - Methodology for Determining Habitat In-Lieu Mitigation Fee
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1.0 RECITALS
f-- This Implementing Agreement ("Agreement"), made and entered into as of , 2004 (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 provide for the conservation and management of the species covered
under the HMP and minimize and mitigate the effects on the species and their habitats in future
land development and habitat management 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 198O'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 first 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 Enrollment Agreement with CDFG in 1992. In these,
Carlsbad expressed its intent to prepare and implement a Habitat Management Plan ("HMP").
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
(I'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 and
the NCCP Act. Consistent with the NCCP Act, the HMP is a broad-based habitat planning effort
intended to provide for effective conservation and management of wildlife and targeted natural
communities 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 43 species of plants and animals, as listed in Exhibit A. The HMP is a product
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of numerous studies and lengthy negotiations by the Parties and other interested persondentities,
and represents coordination of private and public development and conservation interests with
federal, state and local governments.
1.7 Goals of the HMP are to conserve biodiversity in the HMP Area,
including federally listed species, 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 plan for the conservation and
management of natural biological diversity. It addresses the needs of 43 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, habitat management, and species endangerment and creates a plan to minimize and mitigate
for the potential loss of HMP Covered 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 Authorization / Permit (and an acknowledgment
that the HMP satisfies the conditions established in the Section 4(d) Special Rule for the coastal
California gnatcatcher) for HMP Covered Species covered by the HMP which is incidental to
land development and other lawful land uses authorized by Carlsbad except as provided in
Section 10.5.E. of this Agreement.
1.10 The Take Authorization / Permit will authorize the Incidental Take of all
HMP Covered Species 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 10.5E of this Agreement. Conserving unlisted HMP Covered Species (the
"taking" of which is not unlawful under the ESA) the same as listed HMP Covered Species (the
talung of which is unlawful in the absence of a Take Authorization / Permit) 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 City
of Carlsbad will receive the benefit of the USFWS's "no surprises" rule.
1.1 1 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 future 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 lO(a) Permit and an NCCP
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 joint 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
12, 2003 for consistency with the California Coastal Act and Coastal Management Program
pursuant to’the request for Consistency Review granted by the federal Office of Ocean and
Coastal Resource Management (OCRM) in August, 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.
1.16 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 Authorization / Permit
necessary to allow construction of projects, including but not limited to 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 HMP and this Agreement are fully and faithfully
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.
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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 Implementing 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 $6 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 $5 2050 et seq.), including all regulations promulgated pursuant
to that Act.
3.5 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
in Section 10.3 of this Agreement.
3.6 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
Covered Species in perpetuity.
3.7 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.
3.8 The term "Covered Activities" means land development and habitat
management 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.
3.9 The term "Covered Lands" means the lands upon which the Take
Authorization / Permit 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 HMF'.
3.10 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.
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3.11 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.
3.12 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.
3.13 "Habitat Conservation Plan" and "HCPI mean the Habitat Management
Plan ("HMP") prepared by Carlsbad pursuant to Section 10(a)(2)(A) of the ESA, (16 U.S.C. 6
1539(a)(2)(A, dated December, 1999 with Addendum #1 dated December, 1999 and Addendum
#2 dated June, 2003).
3.14 The term "HMP" means the Carlsbad Habitat Management Plan and
Addendum #I and 2.
3.15 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 functional areas
for preserve design as shown in Figure 4 of the HMP .
3.16 The term "HMP Covered Species" means those species identified in lists
1, 2, and 3 Exhibit "A" to this agreement. The HMP addresses the species identified in list 1 in a
manner sufficient to meet all of the criteria for issuing an incidental take permit under the ESA
and NCCP Act.
Take authorization for the species on list 2 and 3 is contingent on other MHCP Subarea Plans
being permitted andor funding for management of conserved areas.
3.17 The term "Incidental Take" means the talung of an HMP Covered Species
incidental to and not the purpose of carrying out otherwise lawful activities.
3.18 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.
3.19 "Local Facilities Management Zone" ("LFltlz") means those 25 areas
defined in Carlsbad's Growth Management Program for planning purposes.
3.20 The term "MBTA" means the federal Migratory Bird Treaty Act (16
U.S.C. $6 701 et seq.), including all regulations promulgated pursuant to that Act.
3.21 The term "MHCP" means the Multiple Habitat Conservation Plan, a
comprehensive subregional plan, adopted in March, 2003, which addresses multiple species'
habitat needs and the preservation of native vegetation in a 175 square mile area in northwestern
San Diego County, California.
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3.22 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.), and all of its
amendments, and including all regulations promulgated pursuant to that Act.
The term "NCCP Permit" means the authorization issued in accordance
with this agreement by CDFG under the NCCP Act, California Fish and Game Code, 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 non-
listed species.
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3.24 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 The term "NPPA" means the Native Plant Protection Act (Cal. Public
Resources Code $9 1900 et seq.), including all regulations promulgated pursuant to that Act.
3.26 "No Surprises Rule" means the rule promulgated by USFWS and currently
codified at 50 C.F.R 17.3, 1722(b)(5) and 17.32(b)(5) that extends certain assurances regarding
future mitigation obligations to permittees obtaining incidental take permits under Section 10(a)
of the Federal ESA.
3.27 The term "Operating Conservation Program" means the conservation and
management measures provided under the HMP andor this Agreement to minimize, mitigate
and monitor the impacts of Take of the HMP Covered Species as described in Sections C, D, E,
F, and Appendix C of the HMP and including those measures described in Exhibit B to the IA
and 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 Authorization / Permit.
3.28 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.
3.29 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.
3.30 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.
3.31 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. $ 17.41 (b), which defines the conditions under which
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the Incidental Take of the coastal California gnatcatcher in the course of certain land use
activities is lawful.
3.32 The term "Section lO(a) Permit" means the permit issued by the USFWS to
Carlsbad under section lO(a)(l)(B) of the ESA (16 U.S.C. 0 1539(a)(l)(B)) to allow the Incidental
Take of HMP Covered Species.
3.33 The term "Special Resource Area" or Y3RA" 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.
3.34 The term "Standards" means special land use regulations to be adopted by
Carlsbad to implement the HMP, as described in Sections D and E.
3.35 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.
3.36 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. Sections 7(b)(4) and 7(0)(2) of the ESA generally do not apply to listed plant
species. However, protection of listed plants is provided to the extent that the ESA prohibits the
removal and reduction to possession of Federally listed endangered plants or the malicious
damage of such plants on areas under Federal jurisdiction, or the destruction of endangered
plants on non-Federal areas in violation of State Law or regulation or in the course of any
violation of a State criminal trespass law.
3.37 The term "Take Authorization / Permit" means the Section 1O(a) Permit,
andor the NCCP Permit.
3.38 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 as described in Section 10.3 of this agreement.
3.39 "USFWS" means the United States Fish and Wildlife Service, an agency
of the United States Department of the Interior.
3.40 "Wetlands" means generally those areas that are inundated or saturated by
surface or ground water at a frequency or duration sufficient to support a prevalence of
vegetation typically 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.
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4.0 HABITAT CONSERVATION PLAN/NCCP PLAN
Pursuant to Section lO(a)(Z)(A) of the ESA (16 U.S.C. 0 1539(a)(Z)(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 Covered 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 10(a)
Permit and that the CDFG issue an NCCP Permit, 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 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. $9 742(f) et seq.). Section lO(a)(l)(B) of the ESA, 16 U.S.C. 8
1539(a)(l)(B), expressly authorizes the USFWS to issue a Section 1O(a) Permit to allow the
Incidental Take of species listed as threatened or endangered under the ESA. The legislative
history of Section 10(a)( l)(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 further mitigation
requirements will only be imposed in accordance with the terms of
the plan. In the event that an unlisted species addressed in an
approved conservation plan is subsequently listed pursuant to the
Act, no further mitigation requirements should be imposed if the
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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.
7.0 LEGAL AUTHORITY OF THE CDFG
The CDFG enters into this Agreement pursuant to its authority under the NCCP
Act. CDFG may authorize the take of HMP Covered Species, including species listed under
CESA, pursuant to Fish and Game Code section 2835 if the €3MP provides for the conservation
and management of those species.
8.0 COOPERATIVE EFFORT
In order that each of the legal requirements of this Agreement 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.
9.0 TERM
9.1 This Agreement, and the HMP, will become effective with respect to
USFWS on the date USFWS issues the Section 10(a)(I)(B) permit and with respect to CDFG on
the date CDFG issues the NCCP Permit. This Agreement, the HMP, and the Take Authorization
/ Permit will remain in effect for a period of 50 years from the issuance of the original Take
Authorization / Permit , except as otherwise provided in this Agreement or in section G of the
HMP.
9.2 Upon agreement of the Parties and compliance with all applicable laws,
the Take Authorization / Permit 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 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 HMP and this
Agreement for the same amount of time, subject to any modifications the USFWS andor CDFG
may require at the time of extension.
9.3 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
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therefore the intention of the Parties that the provisions of the HMP and of this Agreement
regarding the preservation and management 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.
10.0 MUTUAL ASSURANCES
10.1 Compliance with Applicable Laws. Compliance with the terms of this
Agreement, the HMP, and the Take Authorization / Permit 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 Authorization / Permit, 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 NCCP Act, and the
California Native Plant Protection Act (WPPA”) (California Fish and Game Code 0 1900, et
seq.).
10.2 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
“IF) 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 Authorization / Permit. The list of HMP Covered Species is
attached to this agreement as Exhibit “A.”
10.3 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 Surprises Rule at
50 C.F.R. Sections 17.3, 17.22(b)(5) and 17.32.(b)(5), and provided that Carlsbad is properly
implementing the HMP, USFWS shall not require 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 Agreement
and the Section lO(a)(l)(B) Permit with respect to Covered Activities without the consent of
Carlsbad. Adaptive Management modifications and plan 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, during the period necessary 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
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provided by law as to third persons under Carlsbad’s jurisdiction and control that are carrying
out Covered Activities, to avoid such third persons contributing to appreciably reducing the
likelihood of the survival and recovery of the affected species.
(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 HMP 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 subject to these assurances.
(3) Unforeseen Circumstances Finding. In the event that USFWS,
CDFG or Carlsbad believes that Unforeseen Circumstances may exist, it shall immediately
notify the other Parties. Within 30 days 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)(5)(iii)(C). Within fifteen (15) days of receiving such
notice, Carlsbad, 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(b)(5)(iii)(C) and 50 C.F.R. 17.32(b)(5)(iii)(C) USFWS shall make an
Unforeseen Circumstances finding based on the best scientific evidence available, after
considering any responses submitted by Carlsbad pursuant to this section, and USFWS and/or
CDFG shall have the burden of demonstrating that Unforeseen Circumstances exist.
(4) Effect of Unforeseen Circumstances Finding. Pursuant to 50
C.F.R. 17.22(b)(5) and 17.32(b)(5), in the event that USFWS makes a finding of Unforeseen
Circumstances and additional conservation and mitigation measures are deemed necessary 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.
(5) Interim Obligations Upon a Finding of Unforeseen Circumstances.
If USFWS makes a finding of Unforeseen Circumstances, during the period necessary to
determine the nature and extent of additional measures required and available, if any, to address
the unforeseen circumstances, Carlsbad will avoid 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 jurisdiction and control that are carrying
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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B. Changed Circumstances.
(1) Changed Circumstances Defined. As provided in 50 C.F.R. 17.3,
the term “Changed Circumstances, means changes in circumstances affecting a species or the
geographic area covered by the HMP that can reasonably be anticipated by Carlsbad, USFWS,
and CDFG and that can be planned for through the HMP and the Preserve Management and
Monitoring Plan presently being prepared pursuant to Section 12.3 of this Agreement and
Exhibit B to this Agreement.’ The major examples of changed circumstances, which impact or
threaten the protected species and their habitats include fire, flooding, drought and invasive
plants and pests.
(2) Carlsbad - Initiated Response to Changed Circumstances.
Carlsbad will immediately notify USFWS and CDFG upon learning that any of the Changed
Circumstances listed above and in the required Preserve Management and Monitoring Plan 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. Changed Circumstances and planned responses to those circumstances
are described in Exhibit “B” to this agreement. In addition, the identification of other measures
to respond to Changed Circumstances may be provided for in the Preserve Management and
Monitoring Plan presently being prepared as required by Section 12.3of this agreement, which
will then be incorporated into the HMP by reference.’ 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 Exhibit “B” to this agreement
and do not constitute Unforeseen Circumstances or require amendment of the Section
lO(a)(l)(B) Permit, NCCP Permit, or the HMP.
(3) USFWS-Initiated or CDFG-Initiated Response 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 Exhibit “B” to this
agreement, and do not constitute Unforeseen Circumstances or require amendment of the Section
10(a)(l)(B) Permit, NCCP Permit, or the HMP. The USFWS or CDFG may extend the period of
time in which to implement Carlsbad’s planned responses upon Carlsbad’s showing of good
cause as determined by the Wildlife Agencies, which extension will not be unreasonably
withheld.
The Preserve Management and Monitoring Plan is different from the Mitigation Monitoring and Reporting
Program (MMRP) that is associated with the NCCP permit. The MMRF’ will be finalized prior to approval of the
NCCP permit and singing of the IA.
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C. Judicial Limitation.
On June 10, 2004, the court in Spirit of the Sage Council v. Norton, Civil Action
No. 98-1873 (D.D.C.) ordered that, until the Service completes a rulemaking on revocation
standards for incidental take permits, the Service may not approve new incidental take permits or
related documents containing No Surprises assurances. The order specifically allows for the Service to issue incidental take permits that do not contain No Surprises assurances. Therefore,
the "NO Surprises" assurances contained in Sections 1.10, 2.3, 3.26, 10.3.A.( l), 10.3.A(4),
10.3.C, 10.4.2.a, and 18.2.2 of the IA, sections 5.1.1 and 5.2.4 of the MHCP, and section G of
the HMP (with Addendum 1) are currently unenforceable and ineffective with respect to this
Permit. The remainder of the Permit, the IA, and the HCP shall remain in full force and effect to
the maximum extent permitted by law. In addition, in the event that any future judicial decision
or determination holds that the "No Surprises" assurances rule (or similar successive rule) is
vacated, held unenforceable or enjoined for any reason or to any extent, Sections 1.10, 2.3, 3.26,
10.3.A.(1), 10.3.A(4), 10.3.C, 10.4.2.a, and 18.2.2 of the IA, sections 5.1.1 and 5.2.4 of the
MHCP, and section G of the HMP (with Addendum 1) shall be enforceable only to the degree
allowed by any such decision or determination; provided that the remainder of the Permit, the
IA, and the HCP shall remain in full force and effect to the maximum extent permitted by law.
In the event that the "No Surprises" assurances rule is vacated, held unenforceable or enjoined by
a judicial decision or determination, including the June 10, 2004, order described above, but is
later reinstated or otherwise authorized, the assurances provided under the revised rule shall
automatically apply to the HCP, IA, and Permit in place of Sections 1.10, 2.3, 3.26, 10.3.A.(1),
10.3.A(4), 10.3.C, 10.4.2.a, and 18.2.2 of the IA, sections 5.1.1 and 5.2.4 of the MHCP, and
section G of the HMP (with Addendum 1). If, in response to any judicial decision or
determination, the "No Surprises" assurances rule is revised, Sections 1.10, 2.3, 3.26, 10.3.A.( l),
10.3.A(4), 10.3.C, 10.4.2.a, and 18.2.2 of the IA, sections 5.1.1 and 5.2.4 of the MHCP, and
section G of the HMP (with Addendum 1) shall be automatically amended in a manner
consistent with the revised rule so as to afford the maximum protection to the Permittees
consistent with the revised rule. Pursuant to the June 10, 2004, order in Spirit of the Sage
Council v. Norton, Civil Action No. 98-1873 (D.D.C.) until the Service adopts new revocation
rules specifically applicable to incidental take permits, all incidental take permits issued by the
Service shall be subject to the general revocation standard in 50 C.F.R. 8 13.28(a)(5). Additionally, notwithstanding anything to the contrary in the IA and the HCP, the Service retains
statutory authority, under both sections 7 and 10 of the ESA, to revoke incidental take permits
that are found likely to jeopardize the continued existence of a listed species.
10.4 Future Listings.
A. Consideration of the HMP, MHCP and Similar Plans. To the extent
required and permitted by the ESA, and the NCCP Act, the USFWS and CDFG shall take into
account the species and habitat conservation provided under the HMP, MHCP 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 from 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.
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B. Non-HMP Covered 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 Authorization / Permit, then the parties will: (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 and
MHCP. 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 10.4 of
this Agreement. Upon application by Carlsbad meeting the requirements of the ESA and NCCP
Act, and following compliance with applicable procedures under those Acts, Incidental Take of
such species shall be authorized, provided the legal standards for such authorization have been
met.
1. Adequate Conservation Measures Already in HMP and MHCP. If
the conservation measures already contained in the HMP and MHCP are adequate to fulfill the
conservation measures identified pursuant to subsection B above, as determined by USFWS and
CDFG, then upon application by Carlsbad for Take Authorization / Permit for such species and
following satisfaction of applicable review and approval procedures as required by the ESA and
NCCP Act, the Parties will amend the HMP and this Agreement to add such species to the HMP
Covered Species and be issued Take AuthorizationPermit, effective for the remaining term of
the Take Authorization / Permit.
2. Inadequate Conservation Measures in the HMP.
a. Additional Conservation Measure Priorities. If the
conservation measures already contained in the HMP and MHCP do not adequately fulfill the
conservation measures identified pursuant to subsection B above, then upon written request by
Carlsbad, the USFWS and CDFG will work with Carlsbad to identify and implement the
additional conservation measures necessary to add such species to the HMP consistent with
section E.3 of the HMP and the Take Authorization / Permit. Such additional conservation
measures are not subject to or limited by the No Surprises regulatory or CDFG assurances. In
developing a set of additional conservation measures, the Parties will look to 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.
b. Developina Additional Conservation Measures. If the foregoing
options are not adequate to fulfill the conservation measures identified pursuant to subsection A
above, then the USFWS and CDFG will determine, consistent with the ESA 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 10.4 of this Agreement, Carlsbad
will not be required to approve or implement these additional conservation measures until such
time as the species is listed and Take Authorization / Permit is obtained.
C. Application for Take Authorization / Permit. Carlsbad makes no
representation or commitment to pursue a Take Authorization / Permit for such non-HMP
Covered Species, and in the absence of any such Take Authorization / Permit, 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.
10. 5 Other Regulatory Permitting.
A. Other Permits. Impacts to wetlands and wetland-dependent HMP Covered
Species shall be fully mitigated based on ratios determined as part of 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 party 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 fully 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 and the CDFG “No Net Loss” of
wetlands policy.
B. Section 7 Consultations. To the maximum lawful extent consistent with 50
CFR Part 402, in any consultation under Section 7 of the ESA with regard to an HMP Covered
Species, the rights and obligations of Carlsbad under the HMP and this agreement will be
considered in any consultation. 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 bv CDFG. Due to the comprehensive nature of the HMP, to
the maximum lawful extent for projects andor 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.
D. Mipratorv Bird Treaty Act. The Section 10(a) Permit issued pursuant to
this Agreement also constitutes a Special Purpose Permit under 50 C.F .R. 9 21.27 for the Take
of those HMP Covered 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
15
conjunction with any public or private land development project authorized and approved by
Carlsbad in accordance with the HMP, this Agreement and the Take Authorization / Permit will
not be in violation of the MBTA. Such Special Purpose Permit shall be valid for a period of three
years from the Effective Date, provided the Section lO(a) Permit remains in effect for such
period. Such Special Purpose Permit shall be renewed upon written request to USFWS, provided
that Carlsbad continues to fulfill its obligations under the HMP, this Agreement and the Take
Authorization / Permit. Each such renewal shall be valid for the maximum period of time
allowed by 50 C.F.R. 0 21.27 or its successor at the time of renewal.
E. State Fullv Protected Species. Although fully protected species are
included in the list of Covered Species, Take of these species is not authorized in the NCCP
Permit and is prohibited except in limited circumstances by the California Fish and Game Code.
The following species in the HMP are fully protected under the California Fish and Game Code:
1) California brown pelican; 2) American peregnne falcon; 3) Light-footed clapper rail; and 4)
California least tern. CDFG acknowledges and agrees that if the measures set forth in the HMP
are fully complied with, the Covered Activities are not likely to result in Take of these species.
If CDFG determines that such measures 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 it believes are necessary to avoid Take of
these species. Carlsbad shall implement the measures proposed by CDFG or other measures
agreed to by the Parties as adequate to avoid Take of fully protected species.
If at any time there is a change in state law such that CDFG ma issue a
Section 2081(b) Permit, other permit, or authorization allowing the Incidental Take of any
species subject to California Fish and Game Code, sections 3511, 4700, 4800, 5050 or 5515,
Carlsbad may apply for an amendment of the HMP and NCCP Permit or for a new permit for
such species. In processing any such application CDFG shall give good faith consideration to
Take avoidance and mitigation measures already provided in the HMP and shall issue the
amendment or Permit under the same terms and conditions as the existing NCCP Permit, to the
extent permitted by law.
K
F. Future Environmental Documentation. In issuing any permits or other
approvals pertaining to Covered Activities within Carlsbad that affect HMP Covered Species,
and absent a finding of Unforeseen Circumstances under Section 10.3 of this Agreement, and
subject to the requirements of NEPA, the USFWS shall rely on and shall utilize the NEPA
document prepared in conjunction with the MHCP and HMP as the NEPA environmental
document for such permits and approvals. The parties understand and intend that the EIR / EIS
prepared in conjunction with the MHCP will operate as a “program” EIS and EIR to the extent
such use is consistent with applicable provisions of the NEPA and CEQA, including the Council
on Environmental Quality’s NEPA regulations (40 C.F.R. $1500 et seq.) and the CEQA
Guidelines (14 C.C.R. $15000 et seq.) To the maximum extent possible under CEQA, CDFG
shall rely on and shall utilize the EIR / EIS prepared in conjunction with the MHCP Subregional
Plan and the HMP as appropriate CEQA documentation for any future approvals regarding
potential impacts to HMP Covered Species related to land development and habitat management
within the Subarea. Subsequent activities will be examined in light of the program EIR / EIS to
determine whether additional environmental documentation is required under NEPA or CEQA.
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10.6 Special Rules Under Section 4(dl 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. 6 17.31(c)), the USFWS shall consider the
HMP in developing the special rule, so that the special rule will not affect the validity or alter the
terms of any Take Authorization / Permit for HMP Covered Species.
10. 7 Mitigation Bank. As described in Section D.3.B of the HMP, the
HMP proposes a mitigation bank for City Capital Improvement projects (Appendix B) in
Carlsbad using Carlsbad’s Lake Calavera property. The bank consists of 206.1 total acres. The
mitigation bank will be available to mitigate public projects undertaken by Carlsbad upon
completion of a Bank Agreement. Carlsbad will work with the USFWS and CDFG to finalize a
Bank Agreement, which is consistent with the new FWS guidance on conservation banks, signed
by the Director on May 2, 2003, titled “Guidance for the Establishment, Use, and Operation of
Conservation Banks”, and which is consistent with the State of California Official Policy on
Conservation Banks, adopted April 1995, and all policies and practices for approving
mitigatiodconservation banks established by CDFG. The Bank Agreement will identify the total
number of credits existing in the bank which can be used to mitigate city projects on an acre for
acre basis for all impacts to HMP Covered Species and their habitats except impacts to coastal
sage scrub occupied by the gnatcatcher, southern maritime chaparral, maritime succulent scrub
and wetlands. When a Bank Agreement is approved, Carlsbad shall ensure conservation of the
Lake Calavera property by granting a conservation easement to CDFG or an acceptable third
party.
10. 8 Growth Inducing Impacts. Because the MHCP Subregional Plan as
implemented through the HMP is designed to mitigate for the direct, indirect and cumulative
impacts of development within the MHCP Subregional Plan Area, including within the Subarea,
neither Carlsbad, nor any proponent of a land development project approved by Carlsbad
pursuant to the HMF’, shall be required to provide any additional mitigation beyond that required
under the HMP for any growth inducing impacts that such project may have on an HMP Covered
Species.
10. 9 Critical Habitat. The USFWS agrees that it will consider the HMP in
its preparation of any proposed designation of critical habitat concerning any HMP Covered
Species, and further agrees that consistent with 50 C.F.R. 0 424.12, the HMP incorporates
special management actions necessary to manage the HMP Covered Species and their habitats in
a manner that will provide for the conservation of the HMP Covered Species. Except as
otherwise provided in this Agreement, and consistent with the assurances provided under Section
10 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. 0 1536) consultation process that Carlsbad or the
proponent of any land development project approved by Carlsbad commit additional land,
additional land restrictions, or additional financial compensation beyond that provided for under
the HMP and pursuant to this Agreement.
Recent revisions to the Fish and Game Code provisions related to fully protected species allow CDFG to authorize
take for scientific purposes, including efforts to recover fully protected species. However, currently CDFG does not
have statutory authority to authorize “incidental take” of fully protected species.
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10.10 Duty toEnforce. Carlsbad agrees to take all actions within its
authority to enforce the terms of the Take Authorization / Permit, the HMP, and this Agreement
as to itself and to all persons or entities subject to the requirements established by this
Agreement, specifically including the development of permitting and approval requirements set
forth in Section 11 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.
10.1 1 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 Authorization / Permit for the list 1 species in Appendix A issued to
Carlsbad pursuant to the HMP and this Agreement are independent of and severable from other
subarea plans and Take Authorizations / Permits which will be issued to other cities participating
in the MHCP. However, Carlsbad’s NCCP Permit and 6 lO(a)(l)(B) Permit take authorization
for the Covered Species in list 2 and 3 in Appendix A depends on other MHCP subarea plans
being permitted and/or funding for the management of conserved areas. Such take authorization
will not become effective until these conditions are met.
1 1 .O OBLIGATIONS OF CARLSBAD
Carlsbad will fully and faithfully perform all obligations assigned to it under this
Agreement, the HMP, the MHCP, and the Take Authorization / Permit.
11.1 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 Authorization / Permit, 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 11.1 A and B and 11.3 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 11.3 of this
Agreement. Carlsbad shall prepare an analysis of the effect of the proposed change or
18 ‘2 9
Amendment on the HMP on Carlsbads 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 Carlsbads ability to implement
the HMP or achieve the conservation goals of the HMP would be grounds for a reevaluation of
Carlsbad's Take Authorization / Permit under Section 18 of this Agreement.
A. Existinn 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 12
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, Lake Calavera, Veteran's Memorial 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, and the Shelley 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 (the Summit property, the Mandana property, Aura Circle, the Roesch property,
and Promenade) 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 future 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
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provided in Section 11.1 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.
11.2 Project Mitigation Measures. In addition to assembling the preserve
system as described above, Carlsbad will enforce on all future 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.
11.3 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 0
65858 to require compliance with the HMP while permanent regulatory measures are drafted and
approved. The urgency ordinance is attached to this agreement as Exhibit “C”. No take shall be
allowed under the Take Authorization / Permit 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 0 21.53.230) to add Conserved Habitat Areas as undevelopable open space lands preserved
exclusively and in perpetuity for conservation purposes consistent with the HMP.
D. 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 12 months of the Effective Date.
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 for 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 CEQA and associated mitigation monitoring and
reporting programs, and required by Carlsbad as legally enforceable conditions of approval.
11.4 Additional Implementation Measures. As a Subarea Plan of the North San
Diego County Multiple Habitat Conservation Plan (MHCP), the HMP incorporates by reference
the conservation measures included in Volumes I, 11, and I11 of the MHCP. With respect to
20 3i
covered habitats and species, the City shall implement the applicable conservation measures in
approval of development projects and management of the preserve system.
11.5 Participation in Regional Conservation Efforts. Biological analyses
associated with the preparation of the 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 to a qualified conservation management entity 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.
1 1.6 Coouerative Regional Implementation. Carlsbad will participate in the
MHCP Elected Officials Committee which will be formed to coordinate subarea plan policies,
subregional managing and monitoring of preserve lands and regional fundmg. The Committee
will be formed once two or more MHCP cities have entered into implementing agreements with
USFWS and CDFG.
12.0 MONITORING AND REPORTING
12.1 Record Keeping. So long as this Agreement and the Take Authorization /
Permit 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 and in
rough step 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 CDFG's request.
The accounting system known as "Habitrak" will be used for this record keeping.
12.2 Annual Reporting and Meeting. The Parties will meet annually to monitor
HMP implementation, discuss pertinent issues, and coordinate activities relating to overall
preserve system monitoring, maintenance and planning. This meeting will be open to the public.
Prior to the meeting, Carlsbad shall prepare a report addressing the above terms and submit it to
the USFWS and CDFG. The report shall be submitted not later than December lSf of each year.
The Preserve Management and Monitoring Plan is different from the Mitigation Monitoring and Reporting
Program (MMRP) that is associated with the NCCP permit. The MMRP will be finalized prior to approval of the
NCCP permit and signing of the IA.
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12.3 Preserve Management and Monitoring; Plan. As described in Section E.
5.B of the HMF', Carlsbad is preparing a Preserve Management and Monitoring Plan which will
address in detail the implementation of the rreserve management and monitoring
recommendations identified in Section F of the HMP . The Plan shall be completed within one
year of the Effective Date of this Agreement. 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. Funding sources
for preserve management are identified in Section 14 of the Agreement.
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 USFWS 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 accordance 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.
12.4 Other Reports. Carlsbad will provide, within 30 days of being requested
by the USFWS or CDFG, any addtional information in its possession or control related to
implementation of the HMF' that is requested by USFWS or CDFG for the purpose of assessing
whether the terms and conditions of the Take Authorization / Permit and the HMP, including the
HMP's Preserve Management and Monitoring Plan to be developed within one year, are being
fully implemented.
12.5 Certification of Reports. All reports will include the following
certification from a responsible Carlsbad 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.
12.6 Monitoring bv USFWS and CDFG. The USFWS or CDFG may conduct
inspection and monitoring in connection with the permit in accordance with their regulations.
13.0 ADAPTIVE MANAGEMENT
13.1 Reductions in mitigation. Carlsbad will not implement adaptive
management changes that may result in less mitigation than provided for the HMP Covered
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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 20.2 of this Agreement.
13.2 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 20.2 of
this agreement.
14.0 FUNDING
Carlsbad warrants that it has, and will, expend such funds as may be necessary to
fulfill 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:
14.1 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 and perpetual management will be provided
from the following sources: the Villages of La Costa project, as a requirement of the Fieldstone
HCP, required offsite mitigation for Carlsbad's Municipal Golf Course, previously purchased
mitigation for several approved land development projects and the adopted Habitat In-Lieu
Mitigation fee as described in Section E.6 of the HMP.
14.2 Preserve Management and Monitoring Plan. Carlsbad is preparing a
Preserve Management and Monitoring Plan, described in Section 12.3, above. The City Council
has already-funded the preparation of the Plan. The cost is $100,000.
14.3 ManaPement of the Habitat at the Lake Calavera Mitigation Bank and
other City-owned public lands. Carlsbad's cost for management of public lands at Lake Calavera
and other City-owned public lands in the preserve system (approximately 604 acres) is estimated
to cost approximately $181,200 per year in 2004 dollars; this will be adjusted as necessary for
inflation. Carlsbad will fund management of the Lake Calavera Mitigation Bank and other City
habitat lands consistent with Section F of the HMP in perpetuity. This cost will be paid for using
city funds.
14.4 Management of Private Lands in the Habitat Preserve. Carlsbad has
conditioned all private development projects to fully fund the perpetual management of
preserved habitat land located within the projects. All projects approved since the HMP was first
drafted have been required to fund endowments for ongoing management and, for all large
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3f
parcels of habitat, to contract with a conservation entity to perform ongoing management,
maintenance and monitoring in perpetuity.
14.5 Management of Existing Habitat Preserve Areas. At this time, there are
several other entities that own lands that have already been preserved for their habitat value,
including the State of California and Homeowners Associations. Some of these entities have
already funded management activities and others have yet to participate. The Preserve
Management and Monitoring Plan presently being prepared by Carlsbad will identify the level of
management funding for these existing lands and potential fundmg sources if there are any gaps.
In order to receive take authorization for two species on list 2 and all species on list 3, Carlsbad
will provide funding adequate for management and monitoring of these unfunded lands to make
up any funding gaps in the interim period until a regional funding source is established which
covers these costs.
14.6 Program Administration. Carlsbad’s administration of the HMP is
estimated to cost approximately $79,750 per year in 2004 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, which will either be in the form of an endowment or similar
mechanism. The City has also incorporated a 10 percent contingency fund in their PAR analysis
to fund changed circumstances as necessary.
14.7 Habitat In-Lieu Mitination Fee. To provide funding for the conveyance
and management of land in the MHCP Core area, Carlsbad has adopted a Habitat In-Lieu
Mitigation Fee consistent with Section E.6 of the HMP. The methodology used in determining
the fee is attached to this agreement as Exhibit “D.” The In-Lieu Fee will be adjusted upon the
effective date of this agreement and will be adjusted in the future, if necessary, based on the
methodology in the attachment.
14.8 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 or to purchase
additional open space land as authorized by local proposition C, approved in November, 2002.
15.0 OBLIGATIONS OF USFWS AND CDFG
15.1 Oblipations 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. USFWS shall provide
staff to serve on appropriate committees and shall ensure the availability of staff for discussions
and meetings with the other Parties, to the extent consistent with its legal authorities. In the
event that USFWS is unable to meet any of its obligations, USFWS will meet and confer with
the other Parties to this Agreement.
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*,) f 2’
15.2 Obligations of CDFG. Upon execution of this Agreement by all parties
and satisfaction of all other applicable legal requirements, CDFG will issue Carlsbad an NCCP
Permit for take by Carlsbad of HMP Covered Species resulting from covered activities on the
covered lands. CDFG shall provide staff to serve on appropriate committees and shall ensure the
availability of staff for discussions and meetings with the other Parties. To the extent consistent
with its legal authorities, CDFG shall cooperate with the Permittee in obtaining additional
funding from various sources. Subject to available funding, in consultation with USFWS, CDFG
shall prepare and implement a management plan for those portions of habitat areas under its
jurisdiction and control. The management plan shall be consistent with Section F of the HMP. In
the event that CDFG is unable to meet any of its obligations, CDFG will meet and confer with
the other Parties to this Agreement.
16.0 ENVIRONMENTAL REVIEW
16.1 Federal Law - NEPA. Issuance of a Section lO(a) Permit to Carlsbad by
USFWS is an action subject to NEPA. USFWS is a lead agency under NEPA. An Environmental
Assessment has been prepared pursuant to NEPA; in addition, the HMP has been'evaluated
pursuant to NEPA as a Subarea Plan under the MHCP Subregional Plan Final EIEUEIS (March,
2003).
16.2 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 CEQA as a Subarea Plan under the MHCP Subregional Plan
Final EIR/EIS (March 2003) and an Addendum was prepared for final revisions to the HMP.
CDFG is a responsible agency for purposes of approving the HMP under the NCCP Act.
17.0 REMEDIES AND ENFORCEMENT
17.1 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 Monetary 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 Liabilitv. 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. Responsibility 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.
25
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
penalties or otherwise fulfill its enforcement responsibilities under CESA, the NCCP Act, the
NPPA, or other provisions of the California Fish and Game Code.
B. Iniunctive and Temporary 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.
18.0 PERMIT REMEDIES
18.1 The NCCP Permit.
1. Suspension.
a. Permit Suspension. In the event of any material violation of
the NCCP Permit or material breach of this Agreement by Carlsbad, as determined by CDFG,
the CDFG may suspend the NCCP Permit in whole or in part; provided, however, that it may not
suspend the NCCP Permit 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 Permit. In the event the CDFG
suspends the NCCP Permit 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 NCCP
Act, regulations issued there under, the conservation needs of the Covered Species, the terms of
the NCCP Permit 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 NCCP Permit. It is the intent of the
Parties that in the event of any suspension of the NCCP Permit all parties shall act expeditiously
and cooperatively to reinstate the NCCP Permit.
2. Permit Revocation or Termination.
a. The CDFG may only revoke or terminate the NCCP Permit
for a violation of the NCCP Permit or material breach of this Agreement by 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
26
jeopardizing the continued existence of an HMP Covered species and/or to fulfill a legal
obligation of the CDFG under the NCCP Act.
b. The CDFG agrees that it will not revoke or terminate the
NCCP Permit 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 NCCP Act, the NCCP Permit and this Agreement.
18.2 Section 10(a) Permit.
1. Suspension
a. Consistent with 50 C.F.R section 13.27, USFWS may
suspend the Section 10(a) Permit for cause in accordance with the laws and regulations in force
at the time of such suspension. Such suspension may apply to the entire permit, or only to
specified HMP Covered Species, covered lands or covered activities. In the event of suspension,
Carlsbad's obligations under this agreement and the HMP will continue until the USFWS
determines that all take of HMP Covered 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 Covered Species, it will not suspend the Section lO(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 10(a) Permit or this Agreement.
b. Reinstatement Following Suspension. In the event the
Section 10(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 10(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 10(a) Permit
all Parties shall act expeditiously to cooperate to resolve the suspension.
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2. 1O(a) Revocation. Consistent with 50 CFR Section 13.28, the
Service may revoke the section 10(a) permit, in whole or in part, for cause in accordance with
the laws and regulations in force at the time of the revocation. The Service may revoke the
permit based on a determination that the continuation of the permitted activity would be likely to
jeopardize the continued existence of the covered species.
3. In the event of suspension or revocation of the Section 1O(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
Covered Species will be treated as though they were listed species in determining the amount of
take and the mitigation required.
19.0 TERMINATION
19.1 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 Authorization / Permit 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.
19.2 Carlsbad's withdrawal from this Agreement will result in termination of
the Take Authorization / Permit as to all projects or activities not yet approved by Carlsbad and
not yet mitigated for at the time of withdrawal.
19.3 Carlsbad's withdrawal from 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.
19.4 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 Authorization / Permit provided Carlsbad
continues to carry out its obligations under this Agreement with respect to such Take as provided
in Section 18.2.3 and this Section 19 of this Agreement.
19.5 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
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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.
20.0 PLAN AMENDMENTS
20.1 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 Covered 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 Authorization / Permit 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 boundanes 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, Carlsbad will meet with the agencies to resolve the issue; and written approval of the
resulting change will be required;
20.2 Maior Amendments, The Take Authorization / Permit may be amended in
accordance with all legal requirements, including but not limited to ESA, NEPA, the NCCP Act
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. As additional biological analysis and information
becomes available, additions to the HMP Covered Species list contained in Exhibit “A” of this
Agreement 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@)
of the HMP.
29
20.3 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.
20.4 Citv Proiects. Certain Carlsbad projects are covered by Proposed
Hardlines, and are automatically permitted under the Take Authorization / Permit 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.
2 1 .O MISCELLANEOUS PROVISIONS.
21.1 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.
21.2 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.
21.3 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 specify 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: City Manager
CDFG: South Coast Regional Manager
USFWS: Field Supervisor
21.4 Entire Agreement. This Agreement, together with the HMP, MHCP, and
the Take Authorization / Permit, 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.
30 4 I
21.5 Elected Officials 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.
21.6 Availability 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
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.
21.7 DuDlicate 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.
21.8 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 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 fulfill its responsibilities under the
ESA or CDFG under the NCCP Act 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.
21.9 Reference to Regulations. 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.
21.10 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.
21.1 1 No Third Party Beneficiaries. Without limiting the applicability of rights
granted to the public pursuant to the ESA, the NCCP Act 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
31
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.
21.12 Attorneys’ Fees. If any action at law or equity, including any actions for
declaratory relief, is brought to enforce or interpret the provisions of this Agreement, each Party
to the litigation shall bear its own attorneys’ fees, costs and expenses.
32 45
21.13 Due Authorization. Each Party warrants that the signatory is authorized to
execute this Agreement on behalf of that Party.
IN WITNESS WHEREOF, THE PARTES have executed this Implementing
Agreement to be in effect as of the Effective Date.
Date: ,2004.
Date: ,2004. California Department of Fish and Game .......... ......... ......... ......... ......... .........
......... ......... ......... ......... BY
Title: Acting Deputy Director Habitat ......... Conservation Division
Califomia/Nevada Operations Office
United States Fish and Wildlife Service
Date: ,2004.
........... .......... ........... .......... ........... ..........
BY
Deputy Manager
33
EXHIBIT A
Scientific Name
List 1: Species Proposed for Coverage under the Carlsbad Subarea Plan ,
Common Name Status MHCP Subregional Plan Vol. I1 Page Ref.
Chorizanthe orcuttiana
Dudleya blochmaniae SSR. blochmaniae
Plants I
Orcutt’s spineflower FE/CE/NE 4-56
Blochman’s dudleva FSC 4-74
Hazardia orcuttii
Quercus dumosa
I Euphorbia misera I cliff spurge I None I 4-101 1
~ ~ ~
Orcutt’s hazardia FSC/CT/NE 4-111
Nuttall’s scrub oak FSC 4-159
Panoquina errans
Euphyes vestris harbisoni
Salt marsh skipper FSC/OW 4-202
Harbison’s Dun Skipper FSC/NE 4-196
I Birds I
Plegadis chihi
Accipiter cooperii
I Pelecanus occidentalis californicus I California brown pelican I FE/cE/Fp/ow I 4-25 1 1
~ ~~ ~~
White-faced ibis FSCISSUOW 4-256
Cooper’s hawk ssc 4-264
Pandion haliaetus
Falco peregrinus anatum
Rallus longirostris levipes
Charadrius alexandrinus nivosus
Sterna elegans
Osprey ssc/ow 4-269
American peregrine falcon CE/Fp 4-280
Light-footed clapper rail FE/CEmIOW 4-285
Western snowy plover Fr/ssc/ow 4-291
4-299 Elegant tern FSCIS SCIO w
I Sterna antillarum browni I California least tern Imcm I 4-304 I
Vireo bellii pusillus
Polioprifa californica californica
Icteria virens
I Empidonax traillii extimus I Southwestern willow flycatcher I FE./CWOW I 4-314 I
Least Bell’s vireo FE/cE/ow 4-321
Coastal California gnatcatcher FUSSC 4-333
Yellow-breasted chat ssc/ow 4-360
Ainiophila rufceps canescens
Passerculus sandwichensis beldingi
California rufous-crowned FSC/SSC 4-366 sparrow
Belding’s savannah sparrow FSC/CWO W 4-37 1
Passerculus sanwichensis rostratus
1 See the “Key to Legal and Management Status” that follows List 3.
Large-billed savannah sparrow FSCISSCIOW 4-377
Cnemidophorus hyperythrus beldingi Orange-throated whiptail ssc 4-245
Scientific Name Common Name
Plants
MHCP Subregional
Plan Vol. I1 Page Ref. Status
Acanthoniintha ilicifolia
Anibrosia pumila
Ceanothus verrucosus
~ Dudleya viscida I Sticky dudleya
San Diego thornmint
San Diegoambrosia
Wart-stemmed ceanothus *
-
Ferocactus viridescens
Quercus engelmannii
FSC I 4-89 I
~~
San Diego barrel cactus
Engelmann oak
~
FSC 4-106
None 4-165
1
2
See the “Key to Legal and Management Status” that follows List 3.
Coverage for this species is also contingent on funding for management of conserved areas.
.
Scientific Name Common Name status MHCP Subregional Plan Vol. I1 Page
Ref.
Arctostaphylos glandulosa ssp.
crassifolia
Baccharis vanessae
Brodiaea jlifolia
$omyo~tapiiylis diversifolia ssp iveri o ia I Corethrogynefilaginifolia var. linifolia I Del Mar sand aster
Del Mar manzanita
Encinitas baccharis
Thread-leaved brodiaea
Summer holly
Eryngium aristulatum var. parishii
Iva Hayesiana
San Diego button-celery
San Diego marsh elder
~~
Navarretia fossalis I Spreading navarretia
Myosurus minimus ssp. Apus
I orcuttia caiifornica I California Orcutt mass
Little mousetail ’
Pinus torreyana ssp. torreyana
FT/CE/NE 4-37
4-63 FSC
Torrey pine
~~~
FSCM 4-68
FE/cE/NE/ow 4-94
4-116 FSC
FSCNYOW 4-133
mmow 4-140
WCEMEIOW I 4-147
FSC 4-154
I Invertebrates
Streptocephalus woottoni I Riverside fairy shrimp IFEMEIOW I 4-178 I
I Branchinecta sandiegonensis I SanDiegofairyshrimp I -OW I 4-184 I
1
3
4
Key to Legal and Management Status of Species in Lists 1 - 3
See the “Key to Legal and Management Status”be1ow.
Coverage for this species is also contingent on the City of Carlsbad receiving legal control over the protection,
management, and monitoring of the vernal pools adjacent to the Poinsettia Train Station in Carlsbad.
Coverage for this species is also contingent on other MHCP subarea plans being permitted.
FE Federally Endangered
FT Federally Threatened BEPA Bald Eagle Protection Act
FSC
CE State Endangered
CT State Threatened SPM State Special Protected Mammal
FP State Fully Protected species ssc State Species of Special Concern
RGS State Regulated Game Species None No Federal, State, or City status OW
NE
Federal Species of Concern (former Category 2 Candidate)
Obligate Wetland Species in the MHCP Narrow Endemic Species in the MHCP (Narrow Endemic standards apply to all proposed hardline, standards
areas, etc. as described in section 3.7 of MHCP Volume 1
4 -?
EXHIBIT B
DESCRIPTION OF HOW THE CITY OF CARLSBAD
WILL RESPOND TO CHANGED CIRCUMSTANCES
Changed circumstances are defined by regulation as “changes in circumstances affecting a
species or geographic area covered by a conservation plan that can reasonably be anticipated by
plan developers and the USFWS and that can be planned for.” Changed Circumstances to be
addressed by the Carlsbad Habitat Management Plan (€-IMP) as described in this Implementing
Agreement (IA) include the following:
1. Fire, occurring in the same location as a previous fire no sooner than three years
following nor longer than ten years subsequent to an initial fire, and damaging up to 5
acres of Preserve habitat.
Flood events occurring within the Preserve Floodplains associated with the Encinitas, San
Marcos, Agua Hedionda, Encinas and Buena Vista Creeks and their associated
tributaries, at less than 50-year levels, as determined by the Carlsbad Department of
Public Works.
Climatic drought up to three years in length, as declared by the California State
Department of Water Resources and/or the San Diego County Water Authority.
An increase of invasive species within the Preserve to the extent that, as determined by
the City in consultation with the Wildlife Agencies, such increase is of sufficient
magnitude to significantly, adversely affect any Covered Species.
Disease, including West Nile Virus.
2.
3.
4.
5.
6. Listing of Non-Covered Species.
The USFWS and the City agree that the Changed Circumstances defined by this Exhibit to the
Implementing Agreement represent all Changed Circumstances to be addressed by Carlsbad.
These Changed Circumstances provisions reflect changes in circumstances that can reasonably
be anticipated to occur to Covered Species or within dedicated Preserve areas. These Changed
Circumstances provisions are not intended to cover the same or similar circumstances outside
City jurisdiction nor if they occur within the Carlsbad HMP but outside of the Preserve and
where the City has no legal authority to carry out the Planned Responses, nor if they occur within
the proposed hard-line Conservation Areas depicted on Figure 6 of the HMP but before the land
is lawfully dedicated or conveyed to the Preserve.
Except for the future Listing of a non covered species, each of the defined Changed
Circumstances includes an assessment of risk, a description of preventative measures, and a
summary of Planned Responses (measures to be undertaken in the case of Changed
Circumstances). Preventative measures are those measures that are or will be undertaken by the
City to reduce the potential for occurrence of the Changed Circumstances, and/or that reduce the
potential for damage to the Preserve resulting from a Changed Circumstance event. Planned
Responses are the specific responses that will be undertaken in the event of a Changed
Circumstance. Planned Responses will not include any actions beyond those expressly identified
in this Exhibit, nor for any event not specifically identified as a Changed Circumstance. Planned
Responses will be implemented to the extent that it is possible to do so and remain consistent
with the primary goal to prevent harm to the public health, safety and welfare. Planned
Responses will be implemented by using the funding sources described in Section 14 of the IA
1
for each of the Changed Circumstances, and only to the extent provided by the identified funding
sources.
1. Repetitive Fire
For the purpose of defining Changed Circumstance, Repetitive Fire is defined as fire, occurring
in the same location as a previous fire no sooner than three years following nor longer than ten
years subsequent to an initial fire, and damaging up to 5 acres of Preserve habitat.
1.1 Risk Assessment
Because fire is a natural feature within the chaparral and coastal sage scrub vegetation
communities, under normal circumstances natural re-growth of habitat is expected. However,
the Wildlife Agencies have indicated that certain Repetitive Fires within the same location of the
Carlsbad Preserve may adversely affect the Covered Species conserved by the HMP as a result
of habitat type conversion from existing habitat(s) to invasive or non-native weeds.
USFWS has indicated that if the habitat types prevalent in this Preserve, including coastal sage
scrub, maritime succulent scrub and riparian habitat, bum within the same footprint within ten
years of the original burn, the fires can adversely hamper natural re-growth and interrupt the
ability of the habitat to rejuvenate. After twenty years, habitat types prevalent in the Preserve are
expected to be fully re-established and capable of natural regeneration. A “Repetitive Fire” (a
fire anticipated to occur and to create the potential for type conversion) is therefore considered a
fire incident which occurs in the same location as a previous fire incident (initial fire) no more
than ten years subsequent to the initial fire.
In addition, Carlsbad Fire Department (CFD) officials note that vegetation that has been burned
requires approximately five years to grow before becoming a potentially hazardous fuel load. It
is therefore not anticipated that Repetitive Fire, if it were to occur, would occur in the same
location for at least three-to-five years subsequent to an initial fire. For the purpose of defining
Changed Circumstances, the City has determined that a Repetitive Fire occurring within the first
three years subsequent to an initial fire is therefore not reasonably anticipated.
The Carlsbad Fire Department has responded to 80 incidents involving fire in brush or wildland
areas within the City.
1999 54 fires Acres burned 16.3 Average 0.3
2000 18 fires Acres burned 26.7 Average 1.5
200 1 4 fires Acres burned 6.1 Average 1.5
2002 3 fires Acres burned 1.2 Average 0.4
2003 1 fire Acres burned 0.5 Average 0.5
As the City has developed much of the wildland interface, the number of fires has been
dramatically reduced as reflected in these statistics.
2
As Carlsbad experiences higher humidity than inland cities, fog and cooler temperatures, the
moisture content tends to be higher and temperatures less severe. Higher moisture content and
cooler temperatures make large fire incidents greater than 5 acres, rare. In addition, Carlsbad is
flanked on all sides by urban development and has built out much of the open space replacing
such with commercial and residential development thus also reducing the likelihood of a fire
occurring greater than 5 acres in size. Thus, the scope of fire incidents within the Preserve is
expected to be much smaller than that of wildland fires in less urban situations.
Because implementation of the HMP will result in larger areas of undeveloped, protected habitat
than previously existed within City boundaries, the Carlsbad Fire Chief assessed the potential
that future repetitive fire incidents may burn areas greater than five acres before containment,
during the life of the permit.
All of the Management Units are primarily surrounded by and often times broken up by urban,
residential, and commercial development, limiting the ability of fire to easily spread from area to
area. The Calavera, PoinsettidAviara and Villages of La Costa Management Units will be the
largest contiguous areas of habitat within the City. The Villages of La Costa unit is adjacent to
County Preserve land to the east and is the area most vulnerable to fire originating from outside
the City with the potential to bum a large area.
Cores 4 and 8 include Agua Hedionda and Batiquitos Lagoons respectively and associated
riparian habitats. Moist marsh and riparian vegetation does not represent high-risk fire fuel loads
and, in fact, will serve to hinder fire activity in these areas.
Based on review of available data, knowledge of existing fire fuel loads, fire suppression
experience and anecdotal information, the Carlsbad Fire Chief has determined that fire damage
from Repetitive Fire within the Preserve up to 5 acres is foreseeable during the life of the permit.
Damage greater than 5 acres due to Repetitive Fire is not foreseeable and would be considered an
Unforeseen Circumstance.
1.2 Preventative Measures
Preventative measures to reduce the likelihood of, or harm from a single fire in the Preserve are
included in the adaptive management provisions as specified in the draft Open Space
Management Plan and will be more specifically identified in the Fire Management Plans for each
Management Unit.
Proximity of Fire Services to Preserve Areas
The Carlsbad Preserve is primarily an urban Preserve that is almost entirely surrounded by urban
uses. Although the presence of urban uses may increase the potential for fire incidents, it greatly
decreases the potential for large, non-contained fires due to the proximate location of buildings.
Additionally, urbanization causes fire department responders to be located closer to the Preserve
areas facilitating a rapid response. Rapid response leads to fewer acres burned. The average
response time to fire incidents within the City is approximately five minutes.
3
Brush Abatement Program
In order to further reduce the risk of fire, the City has instituted a weed abatement urban-
wildland-interface management program. This program focuses predominately on areas
interfacing urban and open space Preserve lands. Through this Preserve urban-wildland-
interface fire risk management program, interface areas are inspected annually for fire load and
fire risk. Areas determined to be at risk for the spread of fire from open space to structures are
ordered abated. Using this program, the City is able to annually implement its urban-wildland-
interface management program as it relates to proximity to structures to reduce fire risk in the
areas between development and the Preserve.
Fire Management Plan
The City will update its Fire Management Plans (Section 3.1.4 of the Open Space Management
Plan) to identify the procedures the City will implement both prior to and during any single fire
in the Preserve. The Fire Management Plans will provide that the City will coordinate an
emergency notification and response system that will strive to protect the Covered Species and
the Preserve, to the extent that it is possible to do so and remain consistent with the primary goal
of containing and extinguishing the fire to prevent harm to the public health, safety and welfare.
The Fire Management Plans will provide for a triage system that includes notification of the
Wildlife Agencies as soon as feasible after the onset of the fire. The Fire Management Plans will
also provide for restricted public access to portions of the Preserve in times of severe drought, or
whenever the Fire Department determines that a fire hazard may be high.
1.3 Planned Responses to Repetitive Fires
Upon the occurrence of a Repetitive Fire Changed Circumstance as defined by this Exhibit, the
City will notify the Wildlife Agencies pursuant to the protocol which will be established by the
City’s Fire Management Plans. Within 30 days of the Repetitive Fire incident? the City will
assess the damage cause by the Repetitive Fire within the Preserve. Depending upon the extent
and severity of the fire damage, and as determined by the City, with concurrence of the Wildlife
Agencies, the City will take the following action:
Develop and implement a monitoring program to monitor natural re-growth within the
damaged area for a period of up to 2 years. The monitoring program will provide for site
visits on a regular basis, as determined by the City and the Wildlife Agencies to be
appropriate to the scope and severity of the burn. Management of the burned area will
emphasize removal of weeds and preventing infestation by invasive species. Should
monitoring observations indicate that invasive species control efforts have not been
effective and there is an unacceptable level of invasion by exotic species ador increased
potential for type conversion, the Preserve management program in effect at the time will
be modified to eliminate the infestation and reduce the potential for such invasion and/or
type conversion.
4
2. Flood
For the purpose of defining Changed Circumstance, Flood is defined as natural rain runoff events
occurring within and causing damage to Preserve floodplains associated with the City’s four
watersheds, Batiquitos, Agua Hedionda, Encinas and Buena Vista, and their associated creeks
and tributaries, at less than 50-year levels, as determined by the Carlsbad City Engineer.
Damage to the Preserve due to Flood at greater than a 50-year level is defined as Unforeseen.
2.1 Risk Assessment
The Federal Emergency Management Agency (FEMA) provides local jurisdictions with mapping
that defines the areas that may be affected, or inundated, by flood. FEMA typically addresses
the 100-year flood event and its consequences for people and structures. A 100-year flood, as
defined by FEMA, produces a magnitude of inundation that has a one percent chance of
occurring in any given year. A 50-year event is not specifically addressed by FEMA but is often
referred to by hydrologists as an intermediary scale of event. The 50-year storm has a 2%
chance of occurring in any given year. Both the 100 year and 50 year events are capable of
causing significant damage to property through inundation, erosion, and mud flows. However,
flooding is a natural event and is not anticipated to cause damage sufficiently severe to prevent
natural regeneration of existing habitats within the Preserve.
Information on flooding potentials is available from several sources. FEMA maps on file with
the City of Carlsbad Engineering Department identify the 100-year flood zones located within
the Preserve. Areas that would be subject to flooding in a 50-year event are not mapped by
FEMA but can be generally inferred. These areas primarily follow the creeks which form the
watersheds named above, and are essentially confined to natural drainage channels and riparian
areas, where water has historically been known to occur.
Information is also available from the County of San Diego’s Hydrology Manual dated June
2003, which examines flooding potentials on a regional basis. The City of Carlsbad has a Flood
Plain Ordinance (Chapter 21.110 of the Municipal Code), which outlines the requirements for
development within floodplains.
With the exception of Encinas Creek, the watersheds within Carlsbad terminate in coastal
lagoons or estuaries which are themselves part of the preserve. The City’s three lagoons - Buena
Vista, Agua Hedionda, and Batiquitos - have direct connections with the Pacific Ocean.
Batiquitos and Agua Hedionda Lagoons have permanent openings to the ocean and are therefore
primarily saltwater ecosystems. Buena Vista Lagoon has a weir near its mouth, which regulates
water level and produces a primarily freshwater ecosystem. Encinas Creek flows directly to the
ocean.
These lagoons have significant capacity for receiving floodwaters and transferring them to the
ocean without impacts to the lagoon ecosystems. This analysis will therefore look at possible
effects upstream from the lagoons. The upstream conditions of the four watersheds differ in
several respects, and each is discussed below.
5
Buena Vista Watershed - Buena Vista Creek is the primary drainage within this basin. It
originates in Vista and flows through highly urbanized and disturbed areas before entering
Carlsbad. Within Carlsbad it flows through a longstanding rock and gravel processing facility,
passing into a largely undeveloped floodplain valley with a well-developed willow riparian
corridor. The creek again enters an urbanized zone before entering the Buena Vista Lagoon.
The creek receives some runoff from adjacent Highway 78. Portions of the creek are lined or
channelized. Major bridge structures exist at El Camino Real, 1-5, Carlsbad Boulevard, and the
railroad trestle. Culverts exist at other road crossings. Although the topography of the creek
valley is relatively gentle, the creek does develop significant flows quantities and velocities
during storm events.
Agua Hedionda Watershed - The sources of this basin are Calavera Creek and Agua Hedionda
Creek. Calavera Creek originates in Oceanside and enters Carlsbad at Lake Calavera, a man-
made reservoir. From the lake, the creek descends steeply to currently agricultural land before
entering Agua Hedionda Lagoon. None of Calavera Creek is presently lined or channelized.
Agua Hedionda Creek originates in Vista and enters Carlsbad at the Dawson-Los Monos
Reserve. There is one tributary known as Little Encinas Creek. The creeks descend steeply
through agricultural land until they reach El Camino Real where they merge and enter the
lagoon. The portion of Agua Hedionda Creek passing through Rancho Carlsbad is channelized
and a portion of Little Encinas Creek is riprap lined. Major bridge structures are at 1-5, the
railroad trestle, and Carlsbad Boulevard. Culverts exist at other road crossings. Flood quantities
and velocities can be high.
Encina Watershed - This is the smallest basin, originating in Carlsbad near El Camino Real and
Palomar Airport Road. Nearly the entire length is urbanized, although some portions support
small stands of native riparian vegetation. Portions are channelized. There is significant
infestation of Pampas Grass at the western end. Flood quantities and velocities are relatively
low. There are no major bridges. The creek outlets to the Ocean through a small bridge on
Carlsbad Boulevard.
Batiquitos Watershed - San Marcos Creek and Encinitas Creek are the major flows into
Batiquitos Lagoon. The watershed of San Marcos Creek is large and originates well outside of
Carlsbad. For current purposes we will begin at Lake San Marcos. The creek flows through a
very steep, rock walled canyon. Quantities and velocities can be very high. At the bottom of the
canyon the creek passes through the La Costa Golf Course before entering the lagoon. Major
bridge structures exist at Rancho Santa Fe Road and at El Camino Real. Encinitas Creek
originates in the southeastern corner of Carlsbad. It flows through partially developed areas of
both Carlsbad and Encinitas. A well-developed willow riparian corridor exists in the Green
Valley area, just before the creek enters the lagoon. There are no major bridge structures.
Quantities and velocities are moderate.
For purposes of new development, City land use policies require construction of lined channels,
storm drains, detention basins, and other improvements to accommodate floods up to and
including a magnitude of 100-year, and require that drainage facilities manage flows into
tributary streams to approximate natural flows. This is intended to enable floodplains to function
in their natural capacity, permitting unobstructed flows through natural riparian courses during
6
5-3
flood events. However, the actual behavior of floods in natural stream courses is difficult to
predict or control. Vegetated streams that are not lined or armored may respond to flood waters
very differently from urbanized storm drain facilities, particularly in very large storm events.
Thus, for purposes of habitat conservation planning, the 50-year event is used as the definition of
Changed Circumstance because it is the magnitude of event that can be reasonably anticipated
and planned for.
2.2 Preventative Measures
Preventative measures to reduce the likelihood of or harm from flooding in the Preserve are
included in the adaptive management provisions as specified in Section 1.1 of the Open Space
Management Plan. City land use policies ensure that public and private improvements
accommodate flood events that approximate the rate, magnitude and duration of natural flood
flows.
All development projects approved by the City will also include implementation of Best
Management Practices for storm water and surface runoff pursuant to the standards promulgated
by the California Regional Water Quality Control Board (RWQCB). For all discretionary
projects approved by the City, the City will include mitigation measures or other conditions, as
appropriate, to reduce the likelihood that a flood would adversely impact Covered Species and
the Preserve. As a co-permittee of the RWQCB National Pollution Discharge Elimination
System (NPDES) Permit, the City is required to adopt a Standard Urban Storm Water Mitigation
Plan (SUSMP). The large majority of new development projects and significant redevelopment
projects must meet SUSMP requirements to reduce pollution and runoff flows. The City’s
SUSMP will include a list of recommended source control and structural treatment Best
Management Practices (BMPs).
2.3 Planned Responses for Flood
Upon the occurrence of a Changed Circumstance Flood as defined by this Exhibit, the City will
notify the Wildlife Agencies pursuant to the protocol established by the City’s Open Space
Management Plan. Within 30 days of the Flood incident, the City will assess the damage caused
by the Flood within the affected drainages to determine, with concurrence of the Wildlife
Agencies, if a monitoring program is required. Damage would typically be expected to consist
of erosion to the main channel or bank, possibly with loss of riparian vegetation.
Should the extent and severity of the Flood damage indicate a need for monitoring, the City will
develop and implement a monitoring program for a period of up to two years, to monitor natural
re-growth within the damaged area. The monitoring program will provide for site visits on a
regular basis, as determined by the City and the Wildlife Agencies to be appropriate to the scope
and severity of the Flood damage.
At any time during the monitoring program, should monitoring observations indicate that
allowing habitat to re-grow without interference is resulting in increased opportunity for invasion
by exotic species and/or increased potential for type conversion, as determined by the City, the
Preserve management program, in effect at the time, will be modified to reduce the potential for
7 54
such invasion and/or type conversion, consistent with the Open Space Management Plan and the
terms of the IA. One or more of the following management activities will be incorporated into
the modified management program, as appropriate for the circumstance:
e Bank stabilization
e
e
Removal of sediment and/or debris; and/or
Controlling non-native weeds and other invasive species through approved techniques.
3. Drought
For the purpose of defining Changed Circumstance, Drought is defined as climatic drought for
three consecutive years in length, as formally declared by the California State Department of
Water Resources and/or the San Diego County Water Authority (CWA).
3.1 Risk Assessment
Drought is a cyclical weather phenomenon that is beyond human control. Drought is not
uncommon in Southern California, and it is a phenomenon to which local natural habitats and
species have of necessity adapted over time. Drought occurs slowly over a multi-year period,
differing from the catastrophic events of fire and flood, which occur rapidly and afford little time
for preparing for disaster response. Drought conditions may adversely affect the Covered
Species and the conserved vegetation communities, if the species and/or habitats are unable to
adapt to the changing conditions.
The potential for drought to impact the Preserve increases with the length of a drought. As
Preserve species and habitats begin to react to a prolonged reduction in rainfall, carry-over
supplies in reservoirs are depleted and water levels in groundwater basins also decline, making
imported water resources less available for non-potable uses. Both San Diego County and the
City rely heavily on imported water. However, according to the California Department of Water
Resources (DWR) in their document “Droughts in California,” droughts exceeding three years
are rare in Northern California, the area of California that is the source of much of the State’s
developed water supply and of imported water for Southern California. A drought period of over
three years in length, which restricts availability of water for Preserve purposes, is therefore not
foreseeable, and would be considered an Unforeseen Circumstance.
3.2 Preventative Measures
The HMP does not contain measures to prevent climatic drought because drought is not
preventable by human intervention.
The City of Carlsbad is served by the Carlsbad Municipal Water District (CMWD), which is a
member of, and purchases imported water from, the San Diego CWA. In order to reduce
reliance upon imported water, CMWD is developing a recycled water plant adjacent to the
Encina Wastewater Treatment Plant. Recycled water distribution lines are planned for
construction throughout the City, including areas adjacent to the Preserve in all Management
Units. Recycled water is used for non-potable water requirements such as landscape and park
8 55--
maintenance. In the event of drought, recycled water would be used to supply any supplemental
water for Preserve maintenance, greatly reducing the risk of impact from drought on Preserve
species and habitats.
To prepare for a potential diminished water supply, the City will assess its use of recycled water
Citywide, and will consider directing recycled water to Preserve areas undergoing active
restoration where water is needed, and where it is possible to do so. It is acknowledged that it
may not be feasible to use recycled water for active restoration areas in times of drought or
diminished water supply. However, to the extent that it is able, the City will work with
responsible water agencies to determine whether adequate recycled water supplies would be
available to serve restoration areas in the Preserve.
3.3 Planned Responses to Drought
Upon the occurrence of a drought Changed Circumstance as defined in this exhibit, the City and
the Wildlife Agencies will assess the condition of the Preserve to determine, if a monitoring
program is required for all or portions of the preserve.
Based upon the extent and severity of the Drought, the Wildlife Agencies will develop and
implement an assessment of the condition of the Preserve to determine whether target species are
being affected or whether there is the potential for damage to the Preserve. Based on the results
of the assessment, the Wildlife Agencies will implement a monitoring program to monitor
natural re-growth within the damaged area for a period of up to two years. The monitoring
program will provide for site visits on a regular basis, as determined by the City and the Wildlife
Agencies to be appropriate to the drought situation.
At any time during the monitoring program, should monitoring observations indicate that
allowing habitat to re-grow without interference is resulting in increased opportunity for invasion
by exotic species andor increased potential for type conversion, as determined by the City in
consultation with the Wildlife Agencies, the Preserve management program in effect at the time
will be modified to reduce the potential for such invasion andor type conversion, consistent with
the terms of the IA. One or more of the following management activities will be incorporated
into the modified management program, as appropriate for the circumstance:
(i) (ii) Controlling non-native weeds and other invasive species through approved
Providing temporary irrigation to strategic areas of the Preserve; and/or
techniques.
4. Invasion of Exotic Species
For the purpose of defining Change Circumstance, invasion of exotic species is defined as an
increase of invasive species within the Preserve to the extent that, as determined by the City in
consultation with the Wildlife Agencies, such increase is of sufficient magnitude to significantly,
adversely affect any Covered Species. For the purpose of implementing the actions specified by
this Exhibit, species to be considered potentially invasive are those included in Section 3.1.5 of
the Open Space Management Plan.
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4.1 Risk Assessment
Although invasive, exotic, or pest species of plants and/or animals may currently be present
within the Preserve, an unexpected andor sudden increase in certain invasive species may create
the potential for impacts to one or more of the Covered Species within the Preserve.
Opportunities for increases in invasive species could occur as urban development expands in
areas surrounding the Preserve. The occurrence of a catastrophic event, including Changed
Circumstances defined above, may precipitate sudden increases of invasive species. Planned
Resources to the Changed Circumstances, however, include measures to reduce the opportunity
for invasion by exotic species.
4.2 Preventative Measures
Establishment of the Preserve and the management actions that will be undertaken as part of the
implementation of the HMP will reduce the probability of sudden increases in invasive species.
Section 3.1.5 of the Open Space Management Plan contains measures specifically designed to
prevent invasive species from threatening the Preserve. These measures include restrictions on
the use of invasive plant species in landscape palettes, visitorhesident invasive species education,
and working with adjacent properties to prevent runoff into the Preserve. Through
implementation of the Open Space Management Plan and Area Specific Management Directives
associated with the HMP, invasive species will, under normal circumstances, be discovered prior
to becoming a threat to Covered Species. When invasive’ species are discovered, the Preserve
management program is designed to be tailored to reduce and/or eliminate such species.
4.3 Planned Responses
If, as determined by the City in consultation with the Wildlife Agencies, an increase in invasive
species has occurred within the Preserve at a magnitude sufficient to present a significant adverse
affect to any Covered Species, the City will notify the Wildlife Agencies pursuant to the protocol
established by the City’s Open Space Management Plan described in Section 3.1.5. If the influx
of invasive species involves a species included on the CalEPPC “List A” or the NBII list
(Appendix N), within 30 days of such notice to the Wildlife Agencies the City will assess and
implement changes to the adaptive management program in effect at that time, that may be
necessary to control the invasive species. If the influx of invasive species involved a species
listed on the CalEPPC “Red Alert” list (Appendix N), the City will also notify other relevant
agencies as recommended by CalEPPC. Within 30 days of obtaining responses from the
agencies contacted, the recommendations of the agencies will be used by the City with
concurrence of the Wildlife Agencies to determine appropriate modifications to be made to the
adaptive management program in effect at that time.
Modification of the adaptive management program to address an invasive species Changed
Circumstance will include implementation of a monitoring program of up to two years, as
determined by the City. The monitoring program will provide for site visits on a regular basis, as
determined by the City and the Wildlife Agencies to be appropriate to the type, scope and
location of the exotic species infestation.
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5. Disease -West Nile Virus
West Nile Virus (WNV) is a mosquito-borne disease that infects both wild and domesticated bird
species, livestock, humans, and various other species. The disease can be fatal. WNV was first
detected in the United States in the State of New York in 1999. The illness has spread from East
to West across the United States by birds and mosquitoes. WNV was first detected in California
in Imperial County on August 20, 2003. In 2003, the virus has since been discovered in dead
birds collected from Los Angeles County, Riverside County, Imperial County, Orange County,
and San Diego County. WNV has shown positive in one horse and 5 dead birds in San Diego
County in 2003. In 2004, additional WNV positive birds and positive sentinel chicken flocks
have been found, including dead infected birds in Carlsbad.
WNV is a region-wide issue, not restricted to Carlsbad. It is addressed here as a Changed
Circumstance because we are aware that there are infected birds in Carlsbad and throughout the
region. It is not possible at this time to define with any precision a threshold between Changed
Circumstances due to WNV and Unforeseen Circumstances. The following discussion is offered
to describe what we currently understand about the disease and efforts to respond to it.
5.1 Risk Assessment
Thus far WNV has not killed large numbers of wild birds, but the overall extent of the infection
in wildlife is not well understood. There is the potential for the disease to become a significant
mortality factor to certain bird species. On the other hand, because the disease is a threat to
human health, current prevention activities (as outlined below) are likely to reduce the threat to
both humans and wildlife. Because public health officials use bird deaths to gauge the
effectiveness of their WNV prevention programs, any significant increase in bird deaths is likely
to produce public concern, leading to intensified efforts to halt spread of the disease.
5.2 Preventive Measures
Mosquito control is probably the single most important and effective element in inhibiting spread
of WNV to all species. In San Diego County, mosquito abatement is carried out by the Vector
Control Program of the County Department of Environmental Health. Concern about WNV and
other mosquito-borne diseases has led Vector Control to expand its efforts to control mosquito
populations. These activities have included aerial spraying/application of mosquito larvicide
(Bacillus sphaericus (Bs) and Bacillus thuringiensis israelensis (Bti)) of large bodies of fresh
w'ater, spot spraying or hand broadcasting of bascillus (Bs and Bti) of smaller waterbodies,
distribution of fish that eat mosquito larvae to property owners with ponds, and public education
to encourage abatement of miscellaneous sources of standing water. These preventive measures
have been largely effective as evidenced by the relatively low death rate from the disease.
A secondary preventive measure is the heightened public awareness of the fact that the disease
can be fatal to birds. County Vector Control and other agencies have carried out an extensive
educational campaign to inform the public that dead birds should be reported to them. Tests are
performed on dead birds to determine whether the bird was infected with WNV. Although this
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level of monitoring of bird deaths is far from complete, it provides the best information available
about the extent and virulence of the disease in wild bird populations.
5.3 Planned Responses to WNV
Any indications of increase in human or animal mortality due to WNV would be treated as a
very serious public health concern and would receive a high level of response. Mosquito
abatement activities by County Vector Control would be intensified, as well as public
information activities directed toward elimination of standing water and reporting of dead birds.
Any chemical response to WNV other than application of Bacillus (Bs and Bti) larvicide would
need consultation and approval by the Wildlife Agencies prior to such application to ensure
impacts to other species covered by the MHCP would not be adversely affected beyond that
currently an a1 yzed.
Because of the potential risk to human health, normal budgetary limitations would not be
allowed to constrain efforts to halt the disease. These activities will benefit bird species and well
as people, so that it is not necessary to have programs directed solely toward addressing the
disease in wildlife. In addition, planned responses to the disease are carried out on a regional
basis. Carlsbad would not be alone in attempting to respond to a major outbreak.
6. Future Listings of Non-Covered Species
The City recognizes, as noted in the USFWS discussion of its “Habitat Conservation Plan
Assurances (‘No Surprise’) Rule,” (63 F.R. 8859; February 23, 1998), that the future listing of a
species whose conservation was not provided for in the MHCP to a level sufficient to include the
species as a Carlsbad Covered Species can be viewed as a Changed Circumstance. In the event
that a species, which is not a Covered Species pursuant to this Plan and associated Take
Authority is listed by USFWS subsequent to the issuance of Take Authority pursuant to the
HMP, such listing will be considered a Changed Circumstance.
In the event of a non-covered species, the City and Wildlife Agencies will jointly identify
measures that the City will follow to avoid take, jeopardy and/or adverse modification of any
designated Critical Habitat within the Subarea, until and unless the City’s permit is amended to
include coverage for the newly-listed species as a Carlsbad Covered Species or the Wildlife
Agencies notify the City that such measures are no longer required to avoid jeopardy, take or
adverse modification of designated Critical Habitat of the newly-listed species. Among other
measures, the City will require that prior to the City’s issuance of any permit for land
development, clearing and/or grubbing, applicants must obtain Take Authority for any listed,
non-covered species through appropriate federal and/or state permit processes.
Changed Circumstances Not Provided for in the HMP
Pursuant to the “No Surprises” rule at 50 C.F.R. 17.22(b)(5)(ii), the USFWS may not require (1)
any conservation or mitigation measures in addition to those provided for under Sections 5.8.1 -
5.8.4 in response to a Changed Circumstance; or (2) additional conservation or mitigation
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measures for any Changed Circumstance that is not identified in Sections 5.8.1 - 5.8.4 without
the consent of the City, provided the City is properly implementing the HMP.
As recognized in the “No Surprises” rule at 50 C.F.R. 17.22(b)(6) and 17.32(b)(6), the USFWS,
any Federal, State or local agency, or a private entity may take additional actions at their own
expense to protect or conserve a species covered under the HMP.
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Exhibit C
ORDINANCE NO.
AN INTERIM ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, ADOPTED AS AN
URGENCY MEASURE ESTABLISHING TEMPORARY LAND
USE CONTROLS TO PROTECT SENSITIVE BIOLOGICAL
RESOURCES IN CONFORMANCE WITH THE RECENTLY
APPROVED HABITAT MANAGEMENT PLAN PENDING
PREPARATION AND CONSIDERATION OF ANY NECESSARY
AMENDMENTS TO ORDINANCES, CODES AND POLICIES.
WHEREAS, the City Council of the City of Carlsbad, California, has adopted the
Carlsbad Habitat Management Plan (HMP) which is a comprehensive plan for the conservation
and management of natural habitats in order to preserve the wildlife and the other biological
resources that occupy these areas; and
WHEREAS, the Carlsbad HMP has now been approved by the U.S. Fish and
Wildlife Service (USFWS) and the California Department of Fish and Game (CDF&G) pursuant
to the Federal Endangered Species Act and the California Natural Community Planning (NCCP)
Act and the City has been issued an AuthorizatiordPermit for the Incidental Take of HMP wildlife
in accordance with the HMP; and
WHEREAS, the City has entered into an Implementing Agreement with USFWS
and CDFG to fully implement and commence performing the terms and obligations of the HMP;
and
WHEREAS, the City intends to immediately require all private and public
development projects to fully comply with the HMP while any follow-up amendments to existing
city regulatory documents are made; and
WHEREAS, the City intends to make all necessary amendments to existing land
use ordinances, codes and policies to fully incorporate the standards, conditions, and
requirements of the HMP and Implementing Agreement; and
WHEREAS, these amendments may include revisions to the city’s General Plan,
Zoning Ordinance, and other sections of the Municipal Code; and
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WHEREAS, the California Coastal Commission has approved an amendment to
the certified Local Coastal Program (LCP) to incorporate the HMP, and all biological resource
protection provisions of the LCP are in full force and effect within the Coastal Zone; and
WHEREAS, California Governmental Code Section 65858 allows a city, without
following the procedures otherwise required prior to the adoption of a zoning ordinance to adopt
as an urgency measure an interim ordinance prohibiting any uses which may be in conflict with
contemplated General Plan and Zoning amendments which the city intends to study and
consider; and,
WHEREAS, the City Council believes that in order to preserve the health, safety
and general welfare of its citizens and to immediately commence implementation of the HMP, it
is necessary to adopt an Interim Ordinance as an Urgency Measure under the provisions of
Government Code Section 65858.
NOW, THEREFORE, the City Council of the City of Carlsbad, California, does
ordain as follows:
SECTION 1 : That the above recitals are true and correct.
SECTION 2: That during the time to study, consider and approve any follow-up
actions necessary to fully incorporate and implement the Carlsbad Habitat Management Plan,
all standards, requirements, terms and obligations of the Plan shall be in full force and effect.
SECTION 3: That no application for any land use or development entitlement,
including but not limited to a Master Plan, Specific Plan, Tentative Subdivision Map, Site
Development Plan or Conditional Use Permit shall be approved unless it fully complies and is
consistent with the Carlsbad Habitat Management Plan.
SECTION 4: That if there are any inconsistencies between the HMP and any
existing Zoning Ordinance standard, requirement or provision, the HMP shall take precedence.
SECTION 5: That within the Coastal Zone, the LCP contains special standards
and requirements. In the event of any inconsistency between the LCP and any other existing
land use regulation, the LCP shall take precedence.
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SECTION 6: That removal of any habitat, including but not limited to coastal
sage scrub, chaparral, grassland, and wetlands, is prohibited unless authorized by the City
pursuant to the HMP and this ordinance.
SECTION 7: That the City Council directs the Planning Department to
immediately commence the processing of any necessary amendments to the General Plan, the
Zoning Ordinance, the Municipal Code and any other documents containing standards,
regulations or policies to incorporate and fully implement the HMP.
SECTION 8: Following the adoption of this ordinance, the City Council shall
hold a public hearing within 45 days to consider extending this ordinance for up to 10 (ten)
months and 15 (fifteen) days pursuant to Government Code Section 65858(a). The City Clerk is
directed to notice the hearings as required by Government Code Section 65090.
DECLARATION OF URGENCY: This ordinance is hereby declared to be an
emergency ordinance adopted as an urgency measure to protect the public health, safety and
welfare and shall take effect immediately upon its adoption. The facts constituting the
emergency are those set forth above. Ten days prior to the expiration or any extension, the
staff shall provide the City Council with a report describing the measures taken to alleviate the
condition which led to the adoption of this ordinance.
EFFECTIVE: This urgency ordinance shall be effective immediately upon
passage and shall remain in force and effect as described in Section 8 above or until the City
Council has received, considered and approved any land use regulatory documents necessary
to fully incorporate and implement the Carlsbad Habitat Management Plan whichever occurs
first.
SEVERABILITY: If any section, subsection, sentence, clause, phrase or part of
this urgency ordinance is for any reason held to be invalid or unconstitutional by the final
decision of any court of competent jurisdiction, such decision shall not affect the validity of the
remaining parts of this urgency ordinance. The City Council hereby declares that it would have
adopted this urgency ordinance and each section, subsection, sentence, clause, phrase or part
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thereof irrespective of the fact that any one or more of the sections, subsections, sentences,
clauses, phrases or parts are declared invalid or unconstitutional.
Furthermore, if the entire Ordinance or its application is deemed invalid by a
court of competent jurisdiction, any repeal of the Carlsbad Municipal Code by this Ordinance will
be rendered void and cause such Carlsbad Municipal Code provision to remain in full force and
effect for all purposes.
INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Carlsbad
, 2004, by the following vote, City Council on the
to wit:
day of
AYES:
NOES:
ABSENT:
ABSTAl N :
CLAUDE A. LEWIS, Mayor
ATTEST:
LORRAINE M. WOOD, City Clerk
(SEAL)
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Exhibit D
Group D Habitat
Group E Habitat
Group F Habitat
Fee Calculation Method
$7,897 per acre
$3,949 per acre
$790 per acre
In calculating mitigation fees, acres of habitat impact are converted to proportionate units, using the mitigation ratios specified in the HMP or, in the case of Group F habitat, using the implicit mitigation ratio discussed above. Thus, one acre of impact to Group D, E and F habitats represents, respectively, 1.0,
0.5, and 0.1 units for calculating mitigation fees. Habitats which may be impacted under the HMP and subject to fees represent a total of 543.7 units, of which Group D, E and F habitats represent 26.67%,
43.59%, and 29.74% (Exhibit 4). Total funding requirement of $4,293,130 is allocated to these habitat groups according to these proportions, then divided by the estimated acres of impact, yielding mitigation fee per acre by habitat group (rounded to the next whole dollar). The fee is applied to acres of impact, without regard to the amount of habitat conserved on-site. Use of mitigation ratios establishes a direct relationship between the fees and acres of impact to habitat.
Recommended Fee Schedule
HMP Mitigation Fee Study Report, 2000, excerpt
Carlsbad HMP
Exhibit 1. MITIGATION RATIOS FOR IMPACTS TO HABITATS
Habitat Group and Type
Coastal salt marsh, alkali marsh, freshwater marsh, estuarine, salt panhudflats, riparian forest, riparian woodland, riparian scrub, vernal pools, disturbed wetlands, flood channel, fresh water, Engelmann oak woodland, coast live oak woodland [l] Beach, southern coastal bluff scrub, maritime
succulent scrub, southern maritime chaparral, native grass
Unoccupied coastal sage scrub, coastal sagekhaparral mix, chaparral (excluding southern
maritime chaparral)
Disturbed lands, eucalyptus, agricultural lands
A.
B.
C. Gnatcatcher-occupied coastal sage scrub
D.
E. Annual (non-native) grassland
F.
Mitigation Ratio/Requirement by
Type of Impacted Habitat
No net loss goal (mitigation ratio varies by
type of replacement habitat)
3:l [2]
2:l [3]
1:l [4]
0.5:l [4]
Mitigation Fee [4]
HMP Mitigation Fee Study Report, 2000, excerpt