HomeMy WebLinkAboutCalifornia Department of Fish and Game; 2009-04-22; 1600-2008-0365-R5CALIFORNIA DEPARTMENT OF FISH AND GAME
South Coast Region
4949 Viewridge Avenue
San Diego, CA 92123
Notification #1600-2008-0365-R5
AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION
THIS AGREEMENT, entered into between the California Department of Fish and Game,
hereinafter called the Department, and the City of Carlsbad (Point of Contact: Eva Plajzer),
1635 Faraday Avenue, Carlsbad CA 92008 (760) 479-4292, hereinafter called the Applicant, is
as follows.
WHEREAS, pursuant to Section 1602 of the California Fish and Game Code, the Applicant, on
the 22" day of April, 2009, notified the Department that they intend to divert or obstruct the
natural flow of, or change the bed, channel, or bank of, or use material from two unnamed
drainages tributary to Agua Hedionda Lagoon to the Pacific Ocean (USGS Map: San Luis Rey;
Township 12 South. Range 4 West).
WHEREAS, the Department, based on information received by the Applicant, has determined
that such operations may substantially adversely affect those existing fish and wildlife resources
within the unnamed streambeds tributary to, the project site, and the vicinity of the project site,
specifically identified as follows: Amphibians: western spadefoot (Spea hammondi) Reptiles:
orange-throated whiptail (Cnemidophorus hyperythrus beldingi); Coastal western whiptail
(Cnemidophorus tigris stejnegeri); Coastal rosy boa (Charina trivirgata); Northern red-diamond
rattlesnake (Crotalus ruber ruber); San Diego ringneck snake (Diadonphis punctatus); Western
pond turtle (Actinemys marmorata pallida); Birds: Cooper's hawk (Accipeter cooper;); coastal
California gnatcatcher (Polioptila californica californica); California horned lark (Eremophila
alpestris); white-tailed kite (Elanus leucurus); yellow-breasted chat (Icteria virens); yellow-
rumped warbler (Dendroica petechia brewsteri; Least Bell's Vireo (Vireo bellii pusillus);
Mammals: Dulzura California pocket mouse (Chaetopidus californicus femoralis); California
pocket mouse (Chaetodipus fallax fallax); Mexican long-tongued.bat (Choeronycteris
mexicana); San Diego desert woodrat (Neotoma lepida intermedia); and all other aquatic and
wildlife resources in the area, including the riparian vegetation which provides habitat for such
species in the area.
These resources are further detailed and more particularly described in the reports entitled
"Final Initial Study and Mitigated Negative Declaration: El Camino Real Widening Project,
Tamarack Avenue to Chestnut Avenue," SCH No. 2007101 141, dated December 2008,
prepared by DUDEK, for the City of Carlsbad; Habitat Management Plan for Natural
Communities in the City of Carlsbad (HMP); and the "Biological Resources Technical Report for
the El Camino Real Road Widening, Carlsbad, California" dated September, 2007, prepared by
DUDEK.
THEREFORE, the Department hereby proposes measures to protect fish and wildlife resources
during the Applicant's work. The Applicant hereby agrees to accept and implement the
Streambed Alteration Agreement for El Carnino Real Widening; Tamarack Avenue to Chestnut Avenue
SAA 1600-2008-0365-R5 Page 2 of 8
following measures/conditions as part of the proposed work. The following provisions constitute
the limit of activities agreed to and resolved by this Agreement. The signing of this Agreement
does not imply that the Applicant is precluded from doing other activities subject to Fish and
Game Code Section 1600 et seq. at the site. However, activities not specifically agreed to and
resolved by this Agreement shall be subject to separate notification pursuant to Fish and Game
Code Sections 1600 et seq.
If the Applicant's work changes from that stated in the notification specified above, this
Agreement is no longer valid and a new notification shall be submitted to the Department.
Failure to comply with the provisions of this Agreement and with other pertinent code sections,
including but not limited to Fish and Game Code Sections 5650, 5652, 5901, 5931, 5937, and
5948, may result in prosecution.
Nothing in this Agreement authorizes the Applicant to trespass on any land or property, nor
does it relieve the Applicant of responsibility for compliance with applicable federal, state, or
local laws or ordinances. A consummated Agreement does not constitute the Department's
endorsement of the proposed operation, or assure the Department's concurrence with permits
required from other agencies.
Term and Effective Date
This Agreement becomes effective the date of Department's signature and the
constructionlimpacts portion terminates on February 1, 2015. This Agreement shall remain in
effect until the Department provides written confirmation that the mitigation requirements have
been met. Any amendment shall be by written mutual consent of the Applicant and the
Department, and shall be in compliance with the Department's regulations, policies, and
procedures in effect as of the date of such amendment.
Extension
Pursuant to Section 1600 et seq., the Applicant may request one extension of the Agreement;
the Applicant shall request the extension of this Agreement prior to its termination. The one
extension may be granted for up to five years from the date of termination of the Agreement and
is subject to Departmental approval. The extension request and fees shall be submitted to the
Department's South Coast Region at the above address, ATTN: Streambed Alteration Program
- SAA #1600-2008-0365-R5. If the Applicant fails to request the extension prior to the
Agreement's termination, then the Applicant shall submit a new notification with fees and
required information to the Department. Any constructionlimpacts that occur under an expired
Agreement are a violation of Fish and Game Code 1600 et seq.
Proiect Location
The El Camino Real Widening Project (Project) area is located in the northeastern part of the
City of Carlsbad, California. The project extends approximately 4,600 feet or 0.87 miles from
Tamarack Avenue in the southeast to Chestnut Avenue in the north. The Project lies within the
Habitat Management Plan for Natural Communities in the City of Carlsbad (HMP) plan area.
Streambed Alterat~on Agreement for El Camino Real W~den~ng, Tamarack Avenue to Chestnut Avenue
SAA 1600-2008-0365-R5 Page 3 of 8
Proiect Description
The Applicant proposes to alter the streamllake to widen the section of El Camino Real from
Tamarack Avenue north to Chestnut Avenue to its full width of six travel lanes. The Project will
widen the roadway to a total width of 126 feet including 8-foot wide bike lanes on both sides of
the street, three southbound lanes of 12-foot width each, an 18-foot wide landscaped median
Island, and three northbound lanes of 12-foot width each at the southern and northern ends of
the Project. In the middle section of the roadway, the roadway would transition between the
previously discussed typical section to a modified width of 116 feet including a 6 %foot bike
lane on the west side of the roadway, three southbound lanes of 12 feet width each, a 14-foot-
wide landscaped median island, three northbound lanes of 11 %feet width each, and a five-foot
bike lane on the east side of the roadway. Parkways consisting of 5 %feet of sidewalk and 4 %
feet of native vegetation (including bio-swale) would be provided on each side of the roadway
resulting in a right-of-way width of 116 feet in this reach of the roadway. The Project proposes
to keep the existing vertical profile of the road.
The Project also includes improvements to the intersection of El Camino Real and Chestnut
Avenue; replacement or improvement of storm drains; placement of erosion protection and/or
construction of check dams; construction of 12- to 24-inch-deep brow ditches along the west
side of El Camino Real; installation of lighting at 300-foot intervals along both sides of El
Camino Real; construction of retaining walls; and relocation of an existing bus stop. Existing
overhead power lines along the west side of El Camino Real may be undergrounded.
Impacts
1. The Applicant shall not permanently impact more than 0.07 acre of unnamed tributaries to
Agua Hedionda.
Compensatorv Mitigation
2. Mitigation will be conducted through the purchase of mitigation credits from the North
County Habitat Bank (NCHB) as follows:
a. The Applicant shall mitigate for permanent impacts to 0.03 acre of ephemeral and
intermittent unvegetated stream channels through: a) creationlrestoration of 0.03-acre of
southern willow scrub mixed with freshwater marsh (i.e., 0.03-acre USACE wetland
creationlrestoration credits) and; b) 0.03-acre riparian enhancement (i.e., 0.03-acre
CDFG riparian enhancement credits);
b. The Applicant shall mitigate for permanent impacts to 0.04 acre of southern willow
scrub (including disturbed) through creation/restoration of 0.04-acre southern willow
scrub (i.e., 0.04-acre of wetland CDFG creationlrestoration credits).
3. The Applicant shall mitigate at a minimum 5:l ratio for impacts beyond those authorized in
this Agreement. In the event that additional mitigation is required, the type of mitigation shall
be determined by the Department and may include creation, restoration, or enhancement.
Streambed Alteration Agreement for El Cam~no Real Wlden~ng, Tamarack Avenue to Chestnut Avenue
SAA 1600-2008-0365-R5 Page 4 of 8
Additional Conditions:
General
4. The agreed work includes activities associated with the Project Location and Project
Description that is provided above. Specific work areas and mitigation measures are
described onlin the plans and documents submitted by the Applicant, including the Notification
Package for the El Camino Real Road Widening Project, Storm Water Pollution Prevention
Plan for El Camino Real Widening and the Water Quality Technical Report for El Camino Real
Widening Project, prepared by Bureau Beritas North America, Inc., dated December 9, 2009,
and shall be implemented as proposed unless directed differently by this Agreement.
Development and supporting infrastructure shall be confined to the project footprint.
5. The Applicant shall provide a copy of this Agreement to all contractors, subcontractors, and
the Applicant's project supervisors. Copies of the Agreement shall be readily available at work
sites at all times during periods of active work and must be presented to any Department
personnel, or personnel from another agency, upon demand.
6. A pre-construction meetinglbriefing shall be held involving all the contractors and
subcontractors, concerning the conditions in this Agreement.
7. The Applicant shall notify the Department, in writing, at least five (5) days prior to initiation
of construction (project) activities and at least five (5) days prior to completion of construction
(project) activities. Notification shall be sent to the South Coast Region office at the above
address, Attn: Streambed, SAA#1600-2008-0365-R5.
8. In the event that the project scope, nature, or environmental impact is altered by
subsequent permit conditions by a local, state or federal regulatory authority, the Applicant
shall either submit an Amendment request or re-Notify the Department of any project
modification which conflicts with current conditions or project description.
Resource Protection
9. The Applicant shall not remove vegetation within the stream from February 15 to
September 15 to avoid nesting birds. However, the Applicant may remove vegetation
during this time period if a Department approved biologist conducts a survey for
nesting birds within th~ee days prior to vegetation removal, and ensures no nesting
birds shall be impacted by the vegetation removal activity. If an active nest is found, a
minimum of a 100-foot activity exclusion zone (buffer) will be established and
maintained during the period the nest is active. Applicant may consult with the
Department to discuss a reduced buffer size if species sensitivity and localized
conditions (e.g., width and type of screening vegetation between the nest and the
proposed activity, terrain, existing level of human activity within the buffer and in the
surrounding area) warrant a reduced buffer. If the nest is of a bird species is in the
orders of Falconiformes or Strigiformes, the exclusion zone will be 500 feet. To avoid
a violation of California Fish and Game Code Section 3503.5, the Applicant shall have
a Department approved biologist inspect vegetation prior to removal or modification for
active nesting of species in the orders of Falconiformes and Strigiformes during all
periods these species are documented nesting in southern California. The Applicant
Streambed Alterat~on Agreement for El Camino Real Widening; Tamarack Avenue to Chestnut Avenue
SAA 1600-2008-0365-R5 Page 5 of 8
shall submit the mapped survey results to the Department for review and approval
prior to vegetation removal or modification to ensure full avoidance measures are in
place.
10.Any construction corridor shall be established in such a manner that it avoids
disturbance to woody vegetation to the greatest extent possible. Flagging or stakes
shall be used to establish the construction corridor. Vegetation shall not be removed
or intentionally damaged beyond the construction corridor. Vegetation within this
construction corridor which proves to be an obstruction to normal operations but does
not need to be removed shall be trimmed to near ground level.
11. No equipment shall be operated within the drip line of oaks. Protective fencing shall
be placed around the drip lines of oaks to prevent compaction of the root zone.
12.The Applicant shall use temporary construction fencing to identify the agreed limits
of disturbance within the stream and adjacent habitat, and shall have a Department
approved biologist oversee fence installation.
13. If a stream's low flow channel, bed or banks have been altered, other than those
areas identified as permanent impact, these shall be returned as nearly as possible to
their original configuration and width, without creating future erosion problems.
14. This SAA does not authorize the take of any candidate species or species listed as
threatened or endangered under the California Endangered Species Act ("CESA) (Fish &
Game Code, s2050 et seq.) unless as otherwise specified under the City of Carlsbad's Multiple
Habitat Conservation Plan. If the proposed work could affect any candidate species, or
threatened and endangered species, the Applicant shall contact the Department and shall not
commence the work without the Department's prior approval.
15. Applicant shall implement its Stormwater Management Plan Best Management Practices
(BMPs) during construction.
Equipment and Access
16. Staginglstorage areas for equipment and materials shall be located outside of CDFG
jurisdictional habitat and within the impact areas described in the Project Description, including
the development, roads, and other infrastructure.
17. Any equipment or vehicles driven andlor operated within or adjacent to a stream shall be
checked and maintained daily to prevent leaks.
18. The clean-up of all spills shall begin immediately upon observation of the spill, and
immediately thereafter the Department shall be notified of the spill and any clean-up
procedures recommended by the Department shall be followed by the person or persons
completing the cleanup.
Streambed Alteration Agreement for El Camino Real W~dening, Tamarack Avenue to Chestnut Avenue
SAA 1600-2008-0365-R5 Page 6 of 8
Fill and Spoils
19. Spoil sites shall not be located within a stream, where spoil could be washed back into a
stream, or where it could cover aquatic or riparian vegetation.
20. Fill materials may come from on-site sources or be imported. All fill material shall be free
from contaminates such as trash, debris, or any other material deleterious to aquatic life or
water quality. All fill shall be heavily compacted.
21. No fill may be placed in areas of a streambed that are not included in the footprint of the
project. If any streambed becomes impacted outside the footprint of the project the Applicant
must notify the Department and return the impacted streambed to its naturally occurring
condition. Mitigation and conditions may need to be revised if any impacts occur to streambed
not included in the original footprint of the project.
Structures
22. Storm drain lineslculverts shall be adequately sized to carry peak storm flows for the
drainage to the outfall structure(s). The storm drain lineslculverts and the outfall structure(s)
shall be properly aligned within the stream and otherwise engineered, installed and
maintained, to assure resistance to washout, and to erosion of the stream bed, stream banks
andlor fill. Water velocity shall be dissipated at the outfall, to reduce erosion.
23. Areas with disturbed soils upslope from Department jurisdictional habitat shall be stabilized
to reduce erosion potential. Planting, seeding, and mulching of the disturbed soils is
conditionally acceptable. Where suitable vegetation cannot reasonably be expected to
become established, non-erodible materials shall be used for such stabilization. Any
installation of non-erodible materials not described in the original project description shall be
coordinated with the Department.
Pollution, Litter, and Cleanup
24. No debris, soil, silt, sand, bark, slash, sawdust, rubbish, construction waste, cement or
concrete or washings thereof, asphalt, paint, oil or other petroleum products or any other
substances which could be hazardous to aquatic life, or other organic or earthen material from
any construction, or other associated project related activity shall be allowed to contaminate
the soil andlor enter into or be placed where it may be washed by rainfall or runoff into,
streams or lakes. Any of these materials, placed within or where they may enter a stream or
lake shall be removed immediately upon observation of their presence. When operations are
completed, any excess materials or debris shall be removed from the work area. No rubbish
shall be deposited within 150 feet of the high water mark of any stream.
25. All litter and pollution laws shall be followed. Fully covered trash receptacles with secure
lids (wildlife proof) shall be installed and used in all work areas that may contain food, food
scraps, food wrappers, beverage containers, and other miscellaneous trash.
26. No equipment maintenance shall be done within or near any stream where petroleum
products or other pollutants from the equipment may enter these areas under any flow.
27. Stationary equipment such as motors, pumps, generators, and welders, located within or
adjacent to the stream shall be positioned over drip pans.
Streambed Alteration Agreement for El Camino Real Widening; Tamarack Avenue to Chestnut Avenue
SAA 1600-2008-0365-R5 Page 7 of 8
Administrative
28. The Department reserves the right to suspend or cancel this Agreement under one or
more of, but not limited to, the following circumstances:
a. the Department determines that the information provided by the Applicant in
support of the NotificationIAgreement is incomplete or inaccurate;
b. the Department obtains new information that was not known to it in preparing the
terms and conditions of the Agreement;
c, the project or project activities as described in the notificationlAgreement change;
andlor
d. the conditions affecting fish and wildlife resources change or the Department
determines that project activities will result in a substantial adverse effect on the
environment.
29. Before any suspension or cancellation of the Agreement, the Department will notify the
Applicant in writing of the circumstances which the Department believes warrant suspension or
cancellation. The Applicant will have seven (7) working days from the date of receipt of the
Department's notification to respond in writing to the circumstances described in the
notification. Upon receipt of the Department's notification, the Applicant shall cease all project
activities specified in the notification and shall not reinitiate them until the Department informs
the Applicant in writing that methods andlor measures have been identified, agreed upon, and
shall be implemented to adequately address the reasons for the Department's notification.
30. All provisions of this agreement remain in force throughout the term of this Agreement.
Any provisions of this Agreement may be amended at any time by mutual agreement of the
parties. Any amendments to this Agreement shall be made in a separate writing, signed by the
parties, and attached to this Agreement. Any approved amendments shall become part of this
Agreement.
31. The Applicant agrees that it shall be responsible for any violations of this Agreement,
whether committed by the Applicant or any person acting on behalf of the Applicant, including
its agents, officers, and employees, representatives, or contractors and subcontractors, to
complete the Project Activity authorized by this Agreement. This Agreement does not
constitute the Department's endorsement of the authorized Project Activity.
32. It is understood the Department has entered into this Agreement for purposes of
establishina protective features for fish and wildlife. The decision to proceed with the proiect is
the sole responsibility of the Applicant, and is not required by this ~6eement. It is furthe;
agreed that all liability andlor incurred cost related to or arising from the Applicant's project and
the implementation of the fish and wildlife protective conditions of this Agreement remain the
sole responsibility of the Applicant. The Applicant agrees to hold harmless the State of
California and the Department against any related claim made by any party or parties for
personal injury or any other damages.
33. The Department reserves the right to enter the project site at any time to ensure
compliance with termslconditions of this Agreement.
34. The Department reserves the right to cancel this Agreement, after giving notice to the
Applicant, if the Department determines that the Applicant has breached any of the terms or
conditions of the Agreement.
Streambed Alteration Agreement for El Camno Real Wlden~ng, Tamarack Avenue to Chestnut Avenue
SAA 1600-2008-0365-R5 Page 8 of 8
CONCURRENCE 7-
Claude A. "Bud" Lewis / Mayor
Stephen M. Juarez
Environmental Program Manager
South Coast Region
- .> >
This agreement was prepared by Darren Bradford, Environmental Scientist