HomeMy WebLinkAbout1991-07-23; City Council; 11273; Memorandum Agreement City of Carlsbad United States Fish and Wildlife Service The Fieldstone Company-.
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CIS OF CARLSBAD - AGENW BILL ?< -' -
AB#* TITLE: MEMORANDUM OF AGREEMENT BETWEEN THE DE
CITY OF CARLSBAD, THE UNITED STATES CI'
Cr FISH AND WILDLIFE SERVICE, AND THE
FIELDSTONE COMPANY
MTG. '7-8 3 / ?/
PLN DEPT.
RECOMMENDED ACTION:
That the City Council approve Resolution No. q I -,$ q 1 authorizing the mayor t
Memorandum of Agreement.
ITEM EXPLANATION
The City is in the process of developing a Habitat Management Plan (HMP) whic
policies and mechanisms for the protection of wildlife habitat, especially tl
endangered, threatened, or sensitive species. The HMP is expected to be complete
to early 1992. While the HMP is being developed, it is necessary for normal
continue on a number of private and public projects, some of which will impact
sensitive species. The habitat of greatest concern at this time is Coastal Sage 5
it is home to the California Gnatcatcher and other species which are candidates for
as endangered species.
Because the California Gnatcatcher and various other Coastal Sage Scrub specir
listed, the federal prohibition against impacting the species does not yet apply.
Department's current position on projects that impact Coastal Sage Scrub habit;
considered a significant impact for purposes of environmental review. This genera
if the impact cannot be avoided, it must be mitigated in some way.
The federal Endangered Species Act and related laws and regulations contain
dealing with projects that would impact the habitat of species that are candidate:
a private or public entity wishes to obtain the assistance of the United States Fis
Service (FWS) in reviewing the proposed project and its mitigation, the prescribe
for doing so is to enter into a Memorandum of Agreement (MOA) with FWS. The 1
binding action which outlines the process to be followed by the parties to arrive i
Habitat Conservation Plan (HCP) for the candidate species and their habitat. Tht
of the Pre-listing HCP are as follows:
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It treats candidate species as if they are already listed.
It specifies Interim Activities which may occur in the pre-listing phase.
It specifies that the pre-listing HCP may remain valid following listing of
species, barring unforeseen circumstances which might place the specie
risk.
The City will need to make use of this process in relation to the Rancho Santa I
realignment and widening of the road have been in planning for a number of year5
needed to assure that the road will continue to meet the Growth Management
Standard in the future. The draft Environmental Impact Report has just been relez
review and comment. Because the road project will involve impacts on Coastl
habitat, it would be highly beneficial to involve FWS at this time by means of the I
The draft EIR also identifies impacts related to proposed private grading act
Fieldstone Company. For this reason and the fact that their property is involvc
realignment and proposed mitigation, Fieldstone is a signatory to the MOA.
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PAGE TWO OF AGENDA BILL NO. /I, &? 7 3
Entering into the MOA at this time would be consistent with the City's proactive i
with previous City Council actions related to planning for wildlife habitat. Thi
substantial investment in this planning effort, and it is important that the Cit
maximum benefit from these efforts. The benefits to be gained are primarily ir
formalizing and strengthening the City's already good working relationship with F'
into the MOA will again demonstrate to FWS the City's commitment to habitat pla
working with FWS in a good faith process. In return, the City will be assured tha
for Rancho Santa Fe road will continue to receive expert input from FWS. In addi.
to Coastal Sage Scrub habitat from other municipal projects such as the Lake Calavi
Golf Course and Larwin Park can also be addressed. The mutual objective of the I
MOA will be to plan the mitigation for these interim projects in an environmental17
and coordinated way in compliance with the federal Endangered Species Act.
The drawbacks to the City due to entering into the MOA are few, if any. A perceiv
could be that FWS might utilize the process to require a greater amount of mitigatio
have been required otherwise. This is unlikely because staff has already includ
mitigation in the Rancho Santa Fe EIR that reflects FWS input. As noted above, the
binding. It is essentially an agreement to work together in a coordinated and cooper
in light of federal requirements. Any party can withdraw from the agreement at
notification to the other parties, although it is not expected that the City would wish
from the process. The non-binding provision is a safeguard for all parties in the e
process does not proceed as anticipated.
The MOA and pre-listing HCP will be handled separately from the City's ongoii
develop a comprehensive Habitat Management Plan. Exhibit 3 shows the differen
the two processes and provides a summary of the interim activities process contem
MOA. Although they are separate, it will be necessary for them to be closely coorc
will be assured by having the facilitator and one member of the existing Advisory G
participate in the pre-listing HCP effort.
ENVIRONMENTAL REVIEW
The execution of the MOA is not a project under the California Environmental Qu
requires no environmental review. The Rancho Santa Fe Road project, which is o
be addressed by the MOA, is already being analyzed by a full EIR. Other projects v
addressed by the MOA will require their own environmental review pursuant to the 1
process. If the MOA results in a pre-listing HCP, the HCP will require both stat(
environmental review.
FISCAL IMPACT
There will be no fiscal impact to the City as a result of this action.
EXHIBITS
1.
2. MOA
3.
City Council Resolution No. 7/ -2 q I
Differences between MOA/Pre-listing HCP and City's ongoing habitat plan
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RESOLUTION NO. 91-241
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, C
AUTHORIZING THE MAYOR TO EXECUTE A MEMORANDUM OF 1
BETWEEN THE CITY, THE UNITED STATES FISH AND WILDLIFE SERVIC
FIELDSTONE COMPANY.
WHEREAS, the City Council of the City of Carlsbad wishes to pro!
preservation of habitat for wildlife, especially species that are listed as endangered
or candidates for such listing; and
WHEREAS, the City Council of the City of Carlsbad also wishes to prc
construction of needed public facilities as stated in the Public Facilities Element o
Plan, the Growth Management Program, and other policy documents; and
WHEREAS, the City Council of the City of Carlsbad also wishes to provide fc
private development of privately owned land consistent with the City's various Ian(
and regulations and in light of the need to provide areas for wildlife habitat; and
WHEREAS, the habitat type known as Coastal Sage Scrub is the home to
species that are currently candidates for listing as endangered or threatened b
States Fish and Wildlife Service (FWS); and
WHEREAS, some public and private projects within Carlsbad may impact (
Scrub habitat, and the City wishes to work with FWS in a cooperative effort t 1 1 optimal mitigation measures to be employed with respect to such projects; and
WHEREAS, the Fieldstone Company is one owner of private property that h
to be a participant in the cooperative effort between the City and FWS and to be i
MOA;
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NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of tl
Carlsbad, California, as follows:
1.
2.
That the above recitations are true and correct.
That the memorandum of agreement between the City, FWS, and
Company, which is attached hereto and incorporated by this re
approved.
That the Mayor is authorized to execute the agreement. 3.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council
of Carlsbad, held on the 23rd day of July 119
following vote, to wit:
AYES: Council Members Lewis, Kulchin, Larson, Stanton and Nygl
NOES: None
ABSENT: None
ATTEST:
1
THA JTE@RANZ, City Clerk %EN R.%TZ, Assistant City Clerk
(SEAL)
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6. JULY 15, 15
MEMORANDUM OF AGREEMENT
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- REGARDING CITY OF CARLSBAD COASTAL
SAGE SCRUB HABITAT PROGRAM
THIS MEMORANDUM OF AGREEMENT ("MOA") is entered int
of , 1991, by and among the City of Carl
(IvCityvv) r the United States Fish and Wildlife Service (*lFWSvV),
the Fieldstone Company ( tvFieldstonevv) .
RECITALS
This Memorandum of Agreement is based on the folloi
facts:
WHEREAS, the natural habitat of the Calif01
Gnatcatcher (PolioPtila Californica) (lrGnatcatchervv) is Pac:
Coastal Sage Scrub ("Scrub Habitat") which extends from 1
California, Mexico north to beyond Los Angeles County, Califorr
and also provides habitat for other species of concern ("Species
Concern") ; and
WHEREAS, significant Scrub Habitat exists within
City, some of which is the subject of a number of developm
proposals which could impact the Scrub Habitat and Species
Concern: and
WHEREAS, FWS is a trustee agencies with respect
wildlife and wildlife habitat, includingthe Species of Concern 4
Scrub Habitat; and
WHEREAS, within the scope and constraints of each
their individual statutory mandates and authority, the part:
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'. desire to cooperate in the development of a Habitat Conserv
Plan Program. ("HCP Programtv) which would provide for: (i)
preparationgf a Habitat Conservation Plan (llHCP") for Coastal
Scrub Habitat: and, (ii) the incidental take of Scrub Habits,
the Species of Concern in connection with certain activ:
("Interim Activities") that would take place prior to
completion of the HCP, if the Program is approved by the partit
accordance with the applicable statutes and regulations an
consistent with the long-term conservation of Scrub Habitat anc
Species of Concern; and
WHEREAS, the Rancho Santa Fe Road project, as descr
in the draft Environmental Impact Report No. 91-1, prepared by
City ("Road Project"), is an Interim Activity which the 1
desires to be considered expeditiously and in a timely mannei
order to protect the safety of the public; and
WHEREAS, other Interim Activities which could
considered for inclusion of the HCP Program include: Larwin Pz
the Calavera Municipal Golf Course, and other municipal proje
during the interim period which are necessary to meet the puk
facility requirements of the City's Growth Management Program:
WHEREAS, in connection with Interim Activities inclu
within the HCP Program, it is contemplated that any lltakell of
Gnatcatcher or other Species of Concern will be mitigated by,
example, the acquisition and conservation of additional 8c'
Habitat within and outside of the City; the restoration (
creation of additional Scrub Habitat; the funding of furtl
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studies and research and local implementation plan develoF
and, the reintroduction of Gnatcatchers and other SpeciE
Concern in-areas which they do not currently inhabit; and
- WHEREAS, in connection with any such Interim Activi.
the parties desire to receive assurances that upon approval o
such Interim Activities hereunder by the parties, such activ
will be carried out, together with related conservation measi
in accordance with the terms and conditions of such approvals,
WHEREAS, the City has undertaken the development
Citywide Habitat Management Program (t'HMPft), as part of the Gen
Plan process, which will establish goals, objectives, policies
management guidelines generally for wildlife and various wild
habitats which include all of the major vegetation communi
found within the City of Carlsbad, including, but not limited
Scrub Habitat, and it is anticipated that upon approval of the
Program, the Plan will become part of the Citywide HMP and tl
preparation will be coordinated; and
WHEREAS, it is acknowledged that there may be ot
planning and Conservation efforts which are undertaken with resp
to the Species of Concern and Scrub Habitat within areas adjac
to the City and within the region and that it may be desirable t
the HCP Program be coordinated with such parallel efforts: and
WHEREAS, the parties recognize that the public agenc
which are parties hereto have duties and restrictions unc
applicable laws and regulations which must be observed and can1
be delegated and that nothing herein in intended to abrogate L
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such duties or restrictions.
THEREFORE, it is mutually agreed and understood th4
1. PreDaration and ImDlementation of a HCP Proqran - --
- a. The parties shall use their best effort
cooperate in order to allow the City
Fieldstone to the extent that it incl
Fieldstone Lands) to complete a draft
Program for Scrub Habitat within the
(together with appropriate environme
documents), generally in accordance with
outline in Attachment A hereto, for fo
consideration by the City and FWS in t
respective regulatory capacities; and
b. Complete formal consideration by the City
FWS of any requests for the issuance
permits, the granting of approvals or
execution of any agreements in connection L,
the HCP Program for Scrub Habitat prior
January 1, 1992; and
c. Complete a draft lons-term Scrub Habitat
and related State/Federal joint environmen
impact report/statement for public rev
prior to January 1. 1993.
2. Interim Activities
In order to avoid unnecessary disruption of business l
provide for public health and safety, the city desires that the 1
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Program provides that certain Interim Activities be contemp
and permitted. It is contemplated that said Interim Activitie,
result in -the. "incidental take" of individuals and habitat 03
Species OF Concern, for which appropriate mitigation wil
provided, provided that such '!taket1 is approved by the City anc
under the same standards that would be applicable if such sp~
were listed as ttendangeredft under the Federal and State Endanc
Species Acts ( ltESAstl). The Interim Activities which ma]
considered include, among others:
a. The Rancho Santa Fe Road Project;
b. The 22 acre Larwin Park community park pro
located on Carlsbad Village Drive, east o
Camino Real:
c. The 252 acre Calavera Lake Municipal (
Course project (the "Golf Courset1 project)
the northeast corner of the City;
d. Other municipal projects during this per
which are necessary to meet public facil
requirements of the City's Growth Managen
Plan, as described in the City's Capi
Improvement Program budget;
The Rancho Santa Fe Road Project (the "Road Projec
comprises the restoration and expansion of Rancho Santa Fe RI
through the southern portion of the City with significant impai
on Coastal Sage Scrub Habitat. As an element of this Memorandum
Agreement and the HCP Program, the City and Fieldstone i
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proposing the establishment of a "mitigation pool*@ a portic
which will be used to offset the impacts of this project.
Mitigation-Pool will include a 388 aqre site in the San Pas
Valley together with 423 acres of land within the @'Ranch€
Project site and San Marcos Canyon within the La Costa Ville
The biologists on the Facilitation Team (as defined below'
consultation with the biologists (and representatives) of the C
DFG, FWs, the San Dieguito River Valley Joint Powers Agency (
Dieguito JPA") and Fieldstone will immediately proceed to dev
an approach to include this effort as an element of the S
Habitat HCP: (i) to maximize the value of the Mitigation
through protective, enhancement and management measures: and,
to determine the amount of mitigation credit available
connection with the Road Project. To the extent that
mitigation credit exceeds that necessary for the Road Project,
HCP Program will allocate the credit to the @IRancheros@@,
I9Northwestf' projects within the La Costa Villages Project and
the Larwin Park, the Calavera Lake Municipal Golf Course Projc
and the City Program generally. In addition, other areas may
identified and considered by the City for inclusion in
Mitigation Pool.
e. Consideration of an Interim Grading Ordina
to protect Scrub Habitat while the long-t
HCP is being prepared; and
f. Consideration of an Interim Ordinance
provide for an impact fee relating to the 1(
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of Scrub Habitat while the long-term HCP
being prepared.
-_. The HCP Program, if approved, shall be considere
"prelisting Habitat Conservation Plan" under the Federal ESA
shall be accompanied by an implementation agreement ( "Agreement
This Agreement shall provide assurances to the parties that:
the terms and conditions with respect to Interim Activi'
approved as part of the HCP Program shall be performed and obse:
(including the provision of required mitigation) : and, (ii) :
Species of Concern covered by the HCP Program is subsequei
listed as ltendangeredt8, FWS shall, concurrently with the listin
requested by a party, but subject to certain exceptions
"unforseen circumstances, issue a permit (s) allowing the conti:
"incidental taking" of the species consistent with the approved
Program under Section lO(a) of the Federal ESA. If the specie
listed as lfthreatenedIt under the Federal ESA, the FWS may ins
issue a I9special rulett under Section 4(d) of the ESA consis
with the foregoing. It is acknowledged that prior to the issu
of such permits, as provided above, there is no approval by FWS
any incidental take of the Species of Concern under the Fed
ESAs.
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3. Facilitation Team
The City will establish a Facilitation Team composc
the signatories to this agreement, biological and other necw
consultants, a representative from the HMP Advisory Group, an(
HMP Project Facilitator. The responsibility of the Facilitat
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Team would be the expeditious preparation of a HCP for CS
address the projects and mitigation discussed in this docun
The HCP wcuLd be coordinated with the HMP, and be integrated
that document upon completion.
In addition, as part of the Facilitation Team, the C
in consultation with the FWS may engage biologists and c
consultants and experts.
4. Technical Sumort and Environmental Review
The City, with the assistance of the Facilitation T
and in coordination with the parties shall:
a. Prepare necessary mapping and biological d
and
b. Prepare drafts of any required environmei
documents in connection with the review
approval of the HCP Program. It
anticipated that these documents will
prepared as joint documents under
California Environmental Quality Act ("CEC
and the National Environmental Policy
(gfNEPA1l) and shall be prepared in f
compliance with all applicable laws
regulations. The city shall be the 1
agency for purposes of CEQA and FWS shall
the lead agency for purposes of NEPA. To
extent that the document is a fede
document, it shall be in a form satisfact
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to FWS. In connection with the Road Prc
Interim Activity, the EIR now being pre]
--_ on the State level may be utilized i
"scoping" document for a subsequent fed
environmental document.
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5. Fundinq
The City shall bear the cost of preparing the HCP anc
environmental documents: however, FWS shall bear the cost
participation by their staffs. As part of the mitigation
approvals incidental to the Road Project, it is anticipated
Fieldstone may pay a portion of the City's costs in connection
the preparation of the HCP Program.
6. Coordination with City HMP
The city shall coordinate the activities relating to
HMP with the HCP Program. For this purpose, the City will 1
representatives involved in the HMP process participate in the
Program and its related activities, and shall keep the Cityo
Advisory Committee advised of decisions and activities regarc
the HCP Program.
7. Coordination with Other Related Activities
It is intended that this Memorandum of Agreement
provide a basis to facilitate coordination of the HCP Program w
other parallel planning and conservation activities which may
initiated outside the geographic boundaries of the City.
signatories shall undertake to coordinate, with any such para1
activity, the activities contemplated by this MOA, to the ext
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feasible and prudent.
In this regard, it is acknowledged that the City
enter inta-2 Memorandum of Understanding with DFG which
complement- and be consistent with this MOA in providing
compliance with State law with regard to conservation of 2
Habitat, the Gnatcatcher and other Species of Concern:
Without limiting the generality of the foregoing, j
anticipated that SANDAG may consult with the City with respec
regional impacts and concerns: provide liaison with other 1
agencies addressing similar issues: and, at the request of the
and subject to arrangements regarding the reimbursement of co
provide mapping assistance.
8. Miscellaneous Provisions
a. Termination. While this MOA is intended
provide the basis for cooperative actions,
party may terminate its participation at
time by written notice to the other partie
b, No Amroval/Commitment. It is acknowlec
that FWS and the other public agencies WF
are party to this MOA are authorized to corn
to aspects of a program or plan only afte
formal decision-making process in accorda
with existing laws and regulatio
Accordingly, the participation and stateme
of representatives of the FWS and the ot
public agencies during the process under tl
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MOA are only in an individual advi
capacity and shall not bind or be viewe
the official position of their agencies e,
when provided pursuant to formal action
the respective agency.
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c. Additional Parties. Other parties may
this MOA at a later time, if appropri
These could include DFG, the San I:
Association of Governments, the San Dieq
River Valley Joint Powers Authority, c
cities, the County of San Diego, and poss
others.
d. No Federal Advisory Committee. The objec
of the MOA is to provide a process for
development of a draft HCP Program which
be submitted to the FWS, the City and o
agencies for review, and to provide a b
for undertaking the Interim Activities. I
a scoping process as contemplated by
National Environmental Policy Act and does
provide for or contemplate the establish
of an advisory committee as contemplatec
the Federal Advisory Committee Act.
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Executed by the parties on the dates set forth bel
'I FWS 'I United States Fish and Wil
Service
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By: Marvin Plenert
Regional Director, Region 1
Date :
By:
Jeffrey Opdycke
Field Supervisor Laguna Niguel Field Office
Date :
"CITY" City of Carlsbad
By: &J[& UDE A. LEW , Mayor
Date: & -3--/97/
tlFIELDSTONEil The Fieldstone Company
By :
Date :
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.. EXHIB
--_ INTERIM ACTIVITIES PROCESS - MEMORANDUM OF AGREEMENT
Description:
1) Proqess is activated by MOA between effected part
Not legally binding.
2) Allows projects to go forward while Citywide HMP is k developed.
Identifies potential mitigation for projects allowe proceed.
Mitigation specific to Gnatcatcher Habitat.
3)
4)
Maior Differences Between Interim Activities Process and City
HMP Process:
1) HMP addresses all habitat types, interim pro
2) HMP applies to all future development, interim pro
addresses specific projects.
3) HMP eliminates need for individual, project/proi
mitigation negotiations, interim process involves pro
specific mitigation.
addresses Gnatcatcher.
Major Features of Present Draft MOU:
1)
2)
Major parties are City, Fish and Wildlife and Fieldstc
Proposed mitigation is to establish an offsite land 1 - property would be purchased and used as a mitigat
pool.
Because of location of mitigation, other parties may 1
to eventually be involved.
sets stage for regional perspective.
Specific projects include Rancho Santa Fe Road and ot
city projects.
6) Includes possible funding source for Citywide HMI
development impact fee and mitigation funding.
3)
4)
5)
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ATTACHMENT '@A'@
____ CARLSBAD COASTAL SAGE SCRUB HABITAT - CONSERVATION PLAN PROGRAM
I. Signature of Memorandum of Understanding
11. Further biological study regarding Gnatcatcher Coastal Sage Scrub
111. Complete Proposal for Road Project Interim Acti\i
IV. Comp 1 et e draft HCP Program (includ
Implementation Agreement and environmer documents)
V. Approval of HCP Program (including Road Proj Interim Activity)
VI Complete draft HCP, Implementation Agreement, EIR/EA.
VII. Approval of final EIR/EA and HCP by City, FWS
DFG .
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