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HomeMy WebLinkAbout1993-05-25; City Council; 12246; SUBMISSION OF COMMENT LETTER TO U.S. FISH AND WILDLIFE SERVICE REGARDING PROPOSED SPECIAL RULE FOR THE CALIFORNIA GNATCATCHERAB # )a, %LC b TITLE: SUBMISSION OF COMMENT LETTER TO U.S. FISH AND WILDLIFE SERVICE REGARDING PROPOSED MTG. 5-aw3 DE CI a, M 3 u cd 6 -4 v) (0 M h c 0 2 a, c u M a Q) u $ v) a, G 5 P M a, u u a, 4 a, 5 u 5 (d a M M (d Ti 0 C V a, a, d g .. m cn \ u) cu \ v) z 0 F 2 6 o 0 z 3 1 CIT~F CARLSBAD - AGEN~BILL A+ SPECIAL RULE FOR THE CALIFORNIA GNATCATCH:& DEPT. PLN RECOMMENDED ACTION: It is recommended that the City Council AUTHORIZE the City Manager to send the letter to the U.S. Fish and Wildlife Service On March 25, 1993, the U.S. Fish and Wildlife Service (FWS) listed the coastal ( Gnatcatcher as a threatened species. At the same time, FWS also proposed a Special the gnatcatcher. The Special Rule (Exhibit 1) proposes that impacts to gnatcatchers habitat (“take”) be permitted if part of an approved plan under the state’s Natural Con Conservation Planning (NCCP) Program. More specific regulations and guidelines fc gnatcatchers would then be promulgated by the NCCP Program. A 60 day comment period was provided for the Special Rule. This comment period is to allow individuals and agencies to offer comments or to suggest alternative Comments are being drafted by SANDAG on behalf of the North County Multiplc Conservation Plan (MHCP), of which Carlsbad is a member. SANDAG’S comments M the consensus of the members of the MHCP Advisory Committee and will be formallj by the SANDAG Board of Directors prior to submission to FWS. In addition, staff recc that the City of Carlsbad submit comments to address more specifically some of i concerns. Exhibit 2 is a draft comment letter. The key points in the letter are as follows: b Carlsbad was one of the first public agencies to begin planning proac the California Gnatcatcher and is recognized as a leader in the regior The Special Rule should provide that subarea plans such as Carlsbad Management Plan can be approved prior to completion of the larger su NCCP plans, provided that certain criteria are met to assure consistenc! subregional NCCP Plans. The listing and proposed Special Rule have created a de facto moral projects which would take gnatcatchers or their habitat. The moratoriu even to public projects, such as Palomar Airport Road and Poinsettia P would involve minimal impacts and would provide substantial public The City of Carlsbad recommends that FWS adopt rules or guidelines t provide immediate relief for projects that would involve minimal loss and that meet other criteria. b b b Et is requested that the City Council authorize staff to send the letter as shown in Er as amended by the Council. EXHIBlTS I. 2. Federal Register, dated March 30, 1993 Letter to Jeffrey D. Opdycke, U.S. Fish & Wildlife Service, dated May 18, 1 t " I 0 , ,<- . .. +? I 7, -*- ._ 0. .- __- . Tuesday ' .- I I 1s)arch -, XI, I993 2 ** , Ir 4. .., % - >, ., ._. . ~ . Department of tl Fish end Wildlife senrioe 50CfRPart17 Endangered and Tkeatened W# Plants; Threatened Coastal Caw - Gn;itcmFirpaludpra I sp=w- f 0 0 16758 DEPARTM W OF THE INTERIOR received in response to the Service's with certain land-use actfvities woul proposal to list the atcatcher, detailed be authorized. Under this spedal rul Fish and Wildllfo Se~lca continued existence, the reasons why coastal California gnatcatcher assod 50 CFR Part 17 critical habitat is not being proposed, with land-use activities covered by d and the conservation measures available approved plan repared under the RIN 101S-AB56 to federally listed species. NCCP, provid the Service determi Endangered and Threatened Wlldllfe Section 4(d) of the Act provides that that the approved Ian meets the Allow Take of the Threetoned Coabbl .,threatened sped=, such regulations permit pursuant to 50 CFR 17.32(b)( C8~lfOmitl Gnatcatcher deemed necessary and advisable to Moreover, while the NCB laus am provide for the conservation of the being developed. the specis rule WI AGENCY: Fish and Wildlife Service, species may be issued. lbse permit take of the gnatcatcher result regulations may prohibit any act from activities conducted in ad Interior. AC": hpod S@d rule. prohibited for endangered spdy under wth conservation guideliner &vel< Section sfel. These prohhitiOnS, rn Part, by the Scientific Review Panel SUMMARy: The imp1ementing regulations make it ill9gd for my n subject to established under &e Nm pm for threatened wildlife generally the jurisdiction Of the Fed Stat@ to provided the sdm &termha th incovorate the section ' prohibitions take (indud- hm, harm, pme, guidehes mw the 50 CFR 17.32fi for endangered wi1d1ife' except when a hut, shoot, wound, kill, trap, or collect; standards. me srvim believes tha 'pedal m1e applies. In the C8se Of the Of t0 attempt any Of thSSe). hpOrt Or special rule will provide for habits! coastal Celifornia patcatcher (po'iuptila export, Ship in h'ltWState COmmeIXX h conservation and managemant 8858 ca'jfornjca cWO~'C~)* *e Fish and the course of commercial activity, or sell to the recovery of the gnatatdm b manner consistent with the purpos Wildlife Service (Service) found that the or ofier ford in interstate or fornip Prohibitions for endagered S@m commerce my listed wildlife species. It the A&. Finalization of this special rule ir were generally nmSSilly and advisable is also illegal to possess. sell, deliver, for conservatiori of the s des. This , transport, or ship any such =life that ha bn taken illsally. contingent upon adoption ofthe Certain exceptions apply to agents of the scientific Review Panel's planning Federal Register separate part. However, pursuant to section 4(d) Of the service and State conservation agencies. Widelin- for the Mal * * NCCP program by the California Department of Fish and Game and Endangered S cies Act of 1973. aa The implementing regulations for amended (Actrand the implementing threatened wildlife (50 CFR 17.31) inco service. define the cox-~ditions associated with prohi T itions for endangered wildlife (50 National hdmnmentd pow A~ regulations, the Service proposes to certain land-use activities under which CFR 17.21). except when a special rule take of the coastal California gnatcatcher applies (50 CFR 17.31(c)). In the case of The Fish and Wildlife SeMce H would not be a violation of section 9. , the coastal California gnatcatcher, the comply with the National The Service seeks comments from the Service found that the prohibitions for Environmental Policy Act of 1969 public on this proposed special rule. endangered s es were generally (NEPA) in implementing the prow DATES: Comments from all interested nece'ssary an 8" advisable for of the proposed special rule. hvsl parties must be received by June 1, conservation of the species. However, the NCCP Process Guidelines ado] 1993. pursuant to sedion 4(d) of the Act, as by the California Resources Agenc ADDR~S: Comments and materials amended, and 50 CFR 17.31(C), the the California Department of Fish concerning this proposal should be sent srvh ProposeS to define the Game, a joint State/Federal to the Field Supervisor, U.S. Fish and conditions under which take of the environmental document will be Wildlife *ice, &l&d Field Office. coastal California gnatcatcher resulting prepared for ea& NCB plan. At 1 2730 Laker Avenue West, Carlsbad, from specified land-use activities start of a NCB planning effort, a California 92008. Comments end regulated by state and lccal government planning agreement will establish materiais received will be available for would not violate section 9 of $e Act. extent of Federal involvement am public inspection, by ap intment, The Service *OgniaS *e SWlfi-nt Service obligations under NEPA., appropriate, the NCB lead agenc California through the Natural provide documentation to assist ti efforts undertaken by the State Of Community Conmation planning Ad Service in NEPA compliance. Bot above address. of 1991 (NCB). as well as such and Federal law provide for prep programs as the Multiple Species of a joint StatelFederal envimnme Mr. Jeffrey D. Opdycke, Field Supervisor, at the address listed above Conservation prosram of % mego document. (telephone 619/431-9440). County and the Multispecies Habitat SUPPLEMENTARY WF0RYATK)N: Conservation Planning effort by List of Sub~t~ in 50 CFR Pall 1; Riverside County, to approach systematic evaluation and restoration of Endangered and *atened sp habitat for the benefit of healthy Exports, ~mport~, ReporLing and ecosystems, rather than a species-by- recordkeeping requirements* and encoura e holistic management of listed propcw& R@athm hmulga! gnatcatcher, and other sensitive species. Accordingly, it is hereby prop AS a result, the Service is proposing a amend part 17, subchapter B of c special rule thar would define the I, title 50 of the Code of Federal conditions under which take associated Regulations, as set forth below: Federal Regi~tm f Vd. 58, NO. 59 I Tuesday, March 30, 1993 1 Proposed Rde~ . descriptions of the 7 actors af€ecting its the Service would permit take of the Bx and Plants; Proposed Special Rub To whenever a spedes is listed as a issuance criteria o P an incidental tak finding is published in tg is same orate, for the most part, the during normal business g. ours at the ~ FOR FURTHER INFORMAW COHIACT: Background -I The final rule to list the coastal California gnatcatcher (Polioptih colifornico californica) as threatened, species approach. Such efforts Transportation. published in this same Federal Register current range and status of the gnatcatcher, previous Federal actions on this species, a summary of the comments and recommendations part, presents discussions describing the species, 7 ike the coastal California Federal 4 I VoI. 58, No. 59 f Tuesday, Match a 1993 I F'roposed Rules PART 17+AMENDED) Ih)' 577.11 fnd.ng#.dandtht#t.nd w#dwa tt... vertebratepopw ~lstoricw latknwiwremdm status WnYsted E speder; camnonneme sdenwlcname geredorweamed . . . . Bmos . . . Grwakh~, coestal lWiupfl& Callbma U.S.A. (CA), Mew Entire _..._............... f 496 California arlrfrnnrca . . . . 3. It is proposed to amend 5 17.41 by adding paragraph (b) to read as follows: 5 17.41 Special rules-blrds. planning in southern California. (Copies (iii) The total loss of cc of the Memorandum are available from scrub habitat resulting fh U.S. Fish ad Wildlife Service. 2730 covered by this paragrap] Loker Avenue West, Carlsbad, CA exceed the restrictions dc 92008.) Scientific Review Panel/( (b) Coastal California gnatcatcher (3) During the perid that a Natural Department of Fish and ( (Polio tila californica californica). Community Conservation Plan referred , @delines. (11 E)XCBpt as noted in paragraphs to in paragraph (b)@) of this section is being repared, incidental take of the t4) If the Fish and wilc prohibitions of 5 17.31 (a) and (b) shall coasts California gnatcatcher is has concurred in the guic to in paragraph &)(3) oft (b)(2] and (3) of this section, all apply to the coastal California permitted if the take results from gnatcatcher. activities conducted pursuant to Service shall review the 1 guidelines pre ared by the Scientific every six months to detel California gnatcatcher is permitted if the Review panel kr this program and they continue to meet thc take results from activities conducted in adoptedby the California Department of forth in 50 CFR 17.32(b)( accordance with a Natural Community Fish and-Came pursuant to California Service determines the g Conservation Plan for the protection Of Fish and &me && mion 2825, longer meet these standa coastal sage mb habitat, provided that. provided that: shall consult with the Ca (i) The take Occurs in an area Within Department of Fish and ( Conservation Plan has been prepared, a local governmental jurisdiction that is to the Memorandum of L dated December 4.1991, approved. and implemented pursuant to enrolled in the natural community California Fish and Game Code sections conservation lanning process; appropriate modification 2800-2840; and (ii) The Pis{ and Wildlife %Mce has guidelines, and shall rev (ii) The Fish and Wildlife Service has issued written concurrence that the issued written concurrence that the guidelines meet the standards set forth concurrence under par% Natural Community Conservation Plan in 50 CFR 17.32&)(2). The Service shall this section if appropriat meets the standards set forth in 50 CFX issue its concmnce pursuant to the of the Widelines does nc 17.32&)(2). The Service shall issue its provisions of the Memorandum of Dated: March 19.1993 concurrence pursuant to the provisions Understanding dated December 4,1991, lob F. T-~, of the Memorandum of Understanding between the California Department of Direclor, u.s, Fjs,, ond W,.,d dated December 4.1991. between the Fish and Game and the Service California Department of Fish and Game regarding coastal sage scrub natural * Doc 93-7147 Filed 3-2 and the Service regarding coastal sage community conservation planning in WLWG - 0'- scrub natural community conservation southern California; and ..**a P (2) Incidental take of the coastal [i) The Natural Community ~ May 18, 1993 dlife Service RE: COMME EGARDING PROPOSED SPECIAL RULE FOR GNATCATCHER Dear Mr. Opdycke: of the City of Carlsbad re California Gnatcatcher. behalf of the North County M e Habitat Conservation Prc ess. However, the those contained ir SANDAG letter. ve on the issue of ay to address it. Is apparent declii loss of habitat due initially to and more recent: s is the kc and ecoi development. well be( Carlsbad was one of the first public ag gnatcatcher's range to begin planning in a pro a new and We began our planning effort in June gnatcatcher was still in its first phase of status in advance of the proposal to list it. Since that spent approximately $400,000 on a plan called Management Plan (HMP) which is expected to be comp plan to address the gnatcatcher and its habitat on a sc larger than a single ownership or development project. has included the input of representatives of the Fish and Service, t'ne Department of Fish and Game, and . conservationists at every stage of its development. CarPsbac one of the first public agencies to enroll in the Natural 1200 Carlsbad Village Drive - Carlsbad, California 92008-1 989 - (61 9) 434- e 0 MAY 18, 1993 MR. JEFFREY D. OPDYCKE FIELD SUPERVISOR PAGE 2 ervation Planning (NCCP) Program. In short, has been a pioneer in advocating and practic ing which we all agree is necessary to avoid ich Secretary Babbitt has described. ly proposed, the NCCP Program would divide region into subregions to facilitate planl: subregion would be addressed in the M subarea plans may be a city or an identif nincorporated community. provided the subarea plan me If individual jurisdictions outside, they are likely to be more motivated to under1 such an effort. This would enco involvement as well as recogniz local governments in land use pla (1) The lead agency for the active participant in good standing with process; tion stand coordination of planning with neighboring ju that important regional connectivity OF other opportunities are not lost; conserva (4) The subarea plan is subject to later amendment if the final subregional NCCP Plan calls for con-wa measures, standards or guidelines that differ significanely those included in the adopted subarea plan. 0 0 MAY 18, 1993 MR. JEFFREY D. OPDYCKE FIELD SUPERVISOR PAGE 3 way, subregional plans can crystallize arc one and all of the gional parties agree, there should be a without having to wait for the subregic efforts, we now find would involve relativ public benefits, as the foll (1) A road widening in CarPsbad which would result acres of habitat and would gnatcatchers has been disrupted an considerable added expense. FWS available federal permit process that within the time frame of the project. be successfully complc (2) Construction of a public ithin Carlsbad wl hly disturbed hab tcatchers will Although the listing of the gnatcat implies a somewhat reduced level of concern difficult to accept for projects such as those Our City's inability to proceed with these and si jeopardizes $12 million in public funds and potential jobs. In theory there are the avenues of Section 7 con ulta and Section lO(a) permits, but these avenues are not as ea utilized as they may appear to be. The Section 7 process \ w ul an acceptable option, but the requirement for a federal nexus r it out in many of the situations where it would otherwise be' appropriate. The Section lO(a) process is clearly unsuitable 0 0 MAY 181 1993 MR. JEFFREY D. OPDYCKE FIELD SUPERVISOR PAGE 4 ich would involve minimal impacts to the speci ke use of Section lO(a) for one large priv focus for the address the Ci unreasonable to e t that we should at the same time exp staff time to process lo(a) permits The interim another 60 to 90 days after the F comment period because of the r all of the comments that will irement that FWS approve because : County MHCP has alrc of time will be requ: In addition, the 1c ed to determine ar e can be app: pute the conc ake, the 5% : as proposed raises a multitude of questions. scrub. Thus, patches of habitat less than 5 acres will 4 a 0 MAY 18, 1993 MR. JEFFREY D. OPDYCKE FIELD SUPERVISOR PAGE 5 inventory. These smaller disjunct patches are likely to t candidates for use of the 5% rule, but they will not in the base acreage if not already mapped. n addition, gnatcatchers use a variety of ot our road pro largely chap the 5% rule, exemplified by t reducing habitat t provide this type of benei benefit to be gained from a themselves. The City of Carlsbad Incidental take of the coastal permitted if the Field Supervisor of the the Fish and Wildlife Service issues a let which includes the following findings: biological opii (A) That the take will invo insignificant loss of habitat in Service e (C) That the take will occur within governmental jurisdiction that is an enr active participant in the NCCP Program. 1 e 9 MAY 18, 1993 MRo JEFFREY Do OPDYCKE FIELD SUPERVISOR PAGE 6 adequately mitigated. for minimal impact most appropriate to, an it until as much as six cesses for addressing projects k to a train wreck of cos proportions. of these comments. Sincerely, CITY OF CARLSB RAYMOND Re PATCHETT City Manager arb cc: Congressman Ronald Packard State of California Resources Agency San Diego Association of Governments Alliance for Habitat Conservation Endangered Habitats League '\