HomeMy WebLinkAbout1996-08-06; City Council; 13765; Habitat planning issues information report>
PLANNING ISSUES
This is an informational report. No action is necessary.
ITEM EXPLANATION:
The topic of habitat planning for endangered and threatened species has undergone s
change in recent months. The status of federal and state rules is changing, court deci
affecting the ability of some agencies to continue issuing permits, and the San Diego
picture is rapidly evolving. The purpose of this report is to update the City Council on tt-
status of the habitat planning effort with emphasis on the implications for the City of (
Subsequent reports will be provided with recommendations for specific actions.
The 4(d) Rule and 5% Limitation
When the U.S. Fish and Wildlife Service (FWS) listed the California gnatcatcher as a threai
in March of 1993, it simultaneously proposed a Special Rule to provide an expedite
process for qualifying projects during the interim period prior to completion and appro
plans. The expedited permitting process is known as the 4(d) Permit or Interim Coastal Sal
Permit. An explanation of the 4(d) permit and other permitting mechanisms availak
endangered species act is provided in Exhibit 1.
A key provision of the 4(d) Permit process is a limitation on the total amount of coast
habitat that may be lost during the interim period. The NCCP program has determined
than 5% of the coastal sage scrub existing in the region as of March 1993, and not more t
of gnatcatchers, can be lost without jeopardizing regional planning. Carlsbad’s allocat
determined to be 165.7 acres. Further detail regarding the operation of the 5% limitation
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a The City has already approved 4(d) permits for a number of public and private projects. -
have involved relatively small impacts to coastal sage scrub, with the largest impact beii
The projects are listed in Exhibit 3, and they have drawn a total of 36.40 acres from t
leaving a current balance of 129.30 acres. In the meantime, development activity
increase, and requests from developers to draw from the City’s 5% allocation have increa
are currently pending from a number of projects.
Staff is concerned that the City’s 5% allocation could be exhausted or that the 4(d) permit
be terminated in the near future. One possibility is that the limitation of 11 6 pairs of gnat
be reached soon. The City has received a letter from FWS (Exhibit 4) indicating that I
been taken, and litigation has been filed against FWS by environmental groups cl
continued issuance of permits. It is likely that at some point in the future the expedit
process will terminate due to this factor. Although it is not know when this might
probably occur prior to reaching the limitation on acreage of impacts.
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, Page Two of Agenda I I No. jg! 3 6 5
If the 4(d) process is not terminated for the reason described above, premature depletion
5% allocation of acres is possible due to federal approval of Section 7 permits. Project pro
the option to process their habitat permits directly with the federal agencies through the
10(a) permit mechanisms. The City has no role or authority with respect to these permi
4(d) permit process. However, the Special Rule states that the acreage of impacts due to
10(a) permits must be subtracted from the 5% allocation.
Staff's opinion has always been that the acreage of impacts due to Section 7 or 10(a) perm
be subtracted from the City's 5%. A meeting is being scheduled with FWS officials to dit
related issues. Ultimate resolution of the 5% issue will occur with approval of the Car
Management Plan (HMP). Upon approval of the HMP, the 5% limitation will no lor
Carlsbad, and impacts to coastal sage scrub as well as other habitat types would be go\
provisions of the plan.
Because of the limited amount of coastal sage scrub impact that is available to the Ci
interim period, it will be important to guard against unauthorized impacts. Some unautho
may have already occurred and staff is investigating these. Due to the potential for
impacts to be deducted from the City's 5% allocation, staff will be taking a more
proactive stance regarding any potential violations. As part of this process, letters will I:
owners of the larger parcels containing coastal sage scrub to caution against activities
constitute an unauthorized impact to coastal sage scrub or other habitats.
Status of Regional Habitat Planning
Under the umbrella of NCCP, a regional planning structure has evolved which uses Subr
and Subarea Plans. Subregional Plans are large scale, multi-jurisdictional plans which
broad framework. Subarea Plans are more detailed, single jurisdiction plans that ir
Subregional Plans. Carlsbad's HMP is proposed to be a Subarea Plan.
The Multiple Species Conservation Plan (MSCP) is a Subregional Plan which covers the
San Diego and Poway.
The Multiple Habitat Conservation Plan (MHCP) is the Subregional Plan for the Northwc
of the county, including Carlsbad. Its completion has been delayed for a number of rea
the key issues in the MHCP has been the status of the unincorporated area. Until recent11
the unincorporated area was included in the MSCP and a portion was included in the A
past month, the Board of Supervisors has decided to withdraw all unincorporated land frc
and add it to the MSCP. The result is that the MHCP now includes only the land in sever
cities.
SANDAG is continuing to coordinate preparation of the MHCP, with completion oi
expected in December. In addition to Carlsbad, the cities of Oceanside, San Marcos, a
are actively pursuing Subarea Plans under the MHCP.
portion of the county. It is nearing completion and adoption, including Subarea Plans fo
d a Page Three of Agenda ill No. /?, 76s
Status of the Carlsbad Habitat Management Plan
The last draft of the HMP document was produced in July 1994. Finalization of the docum
delayed due to regional issues, uncertainty regarding the Fieldstone habitat plan, and con(
and DFG regarding the 1994 draft. During the past year these issues have been substanti;
The regional issues have been resolved through progress in the MSCP and actions by the 1
Fieldstone plan was approved in June 1995, addressing the most significant habitat areas
FWS and DFG have provided clarification regarding their concerns with the 1994 draft doc
Staff believes it is time to resume active efforts to complete the HMP and process it
through the federal and state agencies. Because SANDAG intends to complete th
December 1996, the City could proceed with finalization of the HMP concurrently and in
SAN DAG'S work.
Although a great deal of work has already been done on the HMP, recent precedents set
have clarified what will be needed to have a completed Subarea Plan. Staff is presently
items remaining to be done to determine where consultant help will be necessary. One
the drafting of legal agreements which are important to obtaining the assurances based
Outside legal assistance will be required due to the specialized nature of these agreen
staff's analysis of the remaining work is completed, we will return to the City Council wii
the cost and schedule to complete and adopt the HMP. It is expected that this report will
in September.
FISCAL IMPACT:
None.
EXHIBITS:
1. Permitting Mechanisms Available Under the Federal Endangered Species Act
2. Background Regarding the 5% Allocation of Coastal Sage Scrub Acres
3. Itemization of Impacts to City's Coastal Sage Scrub 5% Allocation
4. Undated Letter From U.S. Fish and Wildlife Service
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Permitting Mechanisms Available Under the Endani Species Act (ESA) and Related Federal Laws
The Section 7 Process This section of ESA requires federal agencies to consult with the Fish and Wildli (FWS) when a federal project would have an impact on a listed species. This IT has been extended to include private development projects which have a "feder; The federal nexus may take a number of forms including federal funding or the re for another type of federal permit. To take advantage of this mechanism, the involv agency must request the consultation from FWS.
Section 7 has been used in a number of cases in which the federal nexus is the re to obtain a 404 permit under the Clean Water Act for impacts to wetlands. For ex( project would have impacts to a creek as well as impacts to coastal sage scrub, thi Engineers could request that a Section 7 consultation on the coastal sage scrub ii included in the 404 permit for the creek impacts.
The Section 7 process has benefits for projects by consolidating what would ott- two separate permit processes. Section 7 also contains a provision that mar number of days FWS has to comment on the project after a complete application
that a suitable nexus exists. There have been a few cases in which the Corps of has declined to request a consultation with FWS even though a 404 permit was Projects in Carlsbad that have successfully used Section 7 to address coastal s impacts include the South Carlsbad High School, Arroyo La Costa, Carrillo R( Rancho Verde.
The Section 10(a) Process This section was added as an amendment to ESA in 1983. Prior to this, the] permitting mechanism in ESA for private projects which did not have a federal response to the need for such a mechanism, Congress added Section 10 to ESA for Habitat Conservation Plans (HCPs). Section 1 O(a) operates quite differently frc 7. No federal nexus is required. There are no mandated time limits for processir documentation requirements can be extensive, making the process very e> Approximately 20 HCPs have been successfully completed throughout the nation the Carlsbad/Fieldstone HCP.
Benefits of the HCP process are few beyond the mere obtaining of a permit. The (
the HCP process were a factor in the state's enactment of Natural Cc Conservation Planning which is an attempt to develop a regional approach to t species listed under ESA.
Special Rules Section 4 of ESA deals with species that are listed as threatened rather than em For threatened species FWS believes that there is somewhat less threat of extii there is more flexibility for planning. As a result, Section 4 allows the Secretary 01 adopt Special Rules for these species. The Secretary has broad latitude in creatii Rules, and each Special Rule is typically tailored to the situation that exists for E species or habitat type.
submitted, The primary drawback of Section 7 is the requirement for a federal age
of the process are the considerable time and expense typiclly involved. The dra
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The Special Rule for the California gnatcatcher acknowledged that the primary thi for that species is urban development. Likewise, the primary effect of listing the gr was disruption of the normal development process. The Special Rule for the gr attempted to reconcile conservation of the gnatcatcher with private property righl economic impacts of the listing. It is intended to accomplish this by providing a process that is greatly expedited in comparison with the Section 7 and I O(a) proces
For Carlsbad, the drawback of the Special Rule for the gnatcatcher is that total in limited to 5% of the habitat existing as of March 1993.
National Environmental Policv Act (NEPA NEPA requires that an environmental anklysis be performed for any federal actio likely to have a significant effect on the environment. NEPA documents function 1 like environmental impact reports that the City of Carlsbad regularly process pursi California Environmental Quality Act. A NEPA document is required as part of tht
7. The Special Rule for the gnatcatcher was accompanied by a NEPA docurn specifically stated that NEPA documents would not be required for individual 4( approved under the Special Rule.
of an HCP. NEPA documents are typically not required for permits approved und
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Background Re ardin 5% Allocation of Coastal B# age crub Acres
The general provisions of the federal 4(d) rule are explained in the agenda
limitation operates in San Diego County.
The Special Rule indicated that up to 5% of the gnatcatchers and coastal Si habitat could be lost from the region prior to approval of NCCP plans. The r gnatcatchers that could be taken was projected to be between 66 and a 16 p number of pairs actually taken thus far is unknown to the City, and for this r( discussion will deal only with acres of coastal sage scrub habitat that may be re
The 5% limitation is important for the expedited permit processing that is allou Special Rule. Once the 5% limit is reached, the expedited process would no available. However, the U.S. Fish and Wildlife Service (FWS) could continue t other types of permits. Approval of these other permit types could result i greater than 5% during the interim period. Thus, the 5% limitation is not ar limit on impacts, but rather a limit on the use of the expedited permitting mecha
The wording of the Special Rule states that the 5% limitation applies on a "SUI basis and that a subregional lead or coordinating agency must be designa Diego County as a whole was determined to be a subregion for purposes of c the 5%, and the San Diego Association of Governments (SANDAG) agreed tc the coordinating agency. To facilitate coordination, a Regional Cor Coordination Committee (RCCC) was formed consisting of staff members various jurisdictions in the county and representatives of FWS and the Department of Fish and Game (DFG).
Using information provided by all of the local agencies, SANDAG calculate amount. This was determined to be 11,371.9 acres for the entire region. R considered how to manage the process of drawing from the 5%. representatives argued for allocating portions of the 5% to parts of the subreg on biological criteria. The rationale for this proposal was to prevent one particL the region, such as the coastal strip, from bearing a disproportionate shz impacts during the interim period. Staff members from the cities and the count that this would create operational difficulties because biologically defined b might cross jurisdictional boundaries.
After numerous meetings, it was decided to allocate the 5% to each jurisdict
table showing the breakdown by jurisdiction, and this was approved by RCCC. the process by which Carlsbad received the allocation of 165.7 acres of co: scrub impacts (see attachment A).
The first indication of difficulties with the allocation system occurred in Chula L City of Chula Vista wished to issue a 4(d) permit for a single project which WOI more than that city's 5% allocation. That project was approved, and it is Carlsl understanding that the project site has been graded and is being de Correspondence from FWS and DFG indicate that those agencies did nc issuance of the permit even though it exceeded Chula Vista's allocation. It
purpose of this attachment is to provide further detail regarding how the
FWS
region in proportion to its existing amount of coastal sage scrub. SANDAG pi
e e
how the bookkeeping for this impact was reconciled, and it suggests that FWS
do not consider the 5% allocations to be absolutely binding on individual juri:
However, this point is subject to debate within the region. SANDAG's r information simply shows a negative balance for the City of Chula Vista and indicate a corresponding offset from any other category.
Subsequently, a similar situation arose in El Cajon. In this case, there wa5 action by the County Board of Supervisors to give acres from the allocatic unincorporated area to El Cajon.
The potential for difficulty in Carlsbad became apparent in early 1995 when tt Ranch property owners sought a Section 7 consultation on the coastal si impacts of their project. FWS officials notified City staff that if the coastal sl impacts were approved through the Section 7 process, the acreage of impact MC to be subtracted from the City's 5% allocation. It was unknown whether F\ allow the full impacts requested by Carrillo Ranch or require redesign to reducl City staff monitored the Section 7 consultation but did not actively participate.
Recognizing the possibility that the full acreage of impacts requested by Carr could ultimately be approved by FWS, staff produced an agenda bill in M:
recommending a prioritization system. In response to concerns expressc Building Industry Association (BIA), that agenda bill was not heard. Staff the1 series of discussions with the BIA and other jurisdictions in the region in an find an alternative allocation system. SANDAG coordinated a subcommittee 1 numerous times to examine possible ways to prevent the problem of premature of a jurisdiction's allocation.
One issue that became apparent during these discussions was the fact that 1 decision to allocate the 5% on a jurisdictional basis had never been validated I officials. One way of accomplishing that would have been to have the questior by the SANDAG Board of Directors. However, the majority of staff member5 jurisdictions decided that review of the allocation system by SANDAG's Directors would not be necessary.
Another issue is the lack of clarity regarding how FWS and DFG would r( projects in Chula Vista, Carlsbad, or any city, after that city's 5% allocation is e One possibility is that they would refuse to authorize any further impacts expedited 4(d) process. In this event, the other permitting mechanisms WOL available to projects in those cities, while projects in other jurisdictions would pi still have access to the expedited 4(d) process. In this scenario, it is un subsequent projects approved under other permitting mechanisms would re1 remaining regional 5% allocation.
An alternative reponse by FWS and DFG would be to continue to allow citie 4(d) permits under the expedited process as long as acres remain in the regior this case, application of the 5% limitation to individual jurisdictions would be c removed, and there would be no need to prioritize projects.
A third possible response by FWS and DFG would be to treat Section 7 permits differently from 4(d) permits. This is the alternative advocated by City we are pursuing this with the agencies. At this time, it is not known wt agencies will concur with this interpretation, and discussions are continuing.
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Description of Project
Starting Balance
City and Other Public Agency Projects:
San Dieguito Union High School District for South Carlsbad High
CalTrans for Poinsettia Lane/l-5 Freeway ramps and auxiliary lanes.
School site. Section 7 permit issued, 1993.
Section 7 permit issued, 1995
CMWD - lining and covering of Maerkle Reservoir -
4(d) permit issued, 1995
Cannon Road Reach 1 - 4(d) permit issued, 1995
Hidden Valley Road - Section 7 permit issued 1995
Poinsettia Park - 4(d) permit issued, 1995
Private Development Projects:
Aviara Phase II drainage structure - 1994
Aviara Phase 111 grading - 4(d) permit issued September 1995
La Costa Plaza - PENDiNG
Rancho Verde - Section 7 permit issued 1995
Parkview West - 4(d) permit issued May 1996
Carlsbad Ranch - 4(d) issued May 1996
Total acres authorized to be taken
Remaining acres
Acre
165.7C
1.4E
2.1c
4.30
0.01
2.40
6.32
0.4C
8.68
1.10
1.70
1.10
6.8C
36.4
129.3C
?, @ ' EXHIBIT4
United States kpartnlcnt of the Interior
FISH AND WILI)LI?'E SERVICE
2730 Loker Avenue West
Garbbad, CdifQmia 92008 IV nCP4"M wr,
Dear ItltCE6tCd Parly:
This latter is to advlse you that the Fhh mi Wildlik Swiw ($mice) b contin- to moniror
the bpacts of tile 416) mlb fcrr tlm Cdifowh ptwldirr (jp~wl~wr). Tl& Mq pbt&qQ in
Dacemba 1993, w iesusd i.ii M0ogn;t;on of &e sidcant couwxvatim planning cfv~m
Wd- by &e stale of Cdifoda (state) pursuant tn the State's Natural Community Connmatioa Plmdq Act af 1991 (NCCP), and several onsohg local govsnurusnt muIti-
spwtie8 CtmA0~i@I plaiuIillg &fmcS tht intend 10 apply F&d 'Enwted s@cs Act
smulds to aodvities af%ot& the potcatcher and other scnaitivc apcclcg, Under the sppooial rule, incidental take of pitcatchers dthh subregions nctively cngwcd in mpafi # WCCp
plan is 1101 oonsidaxsd a vivldon of motion 9 of the Endangered Species Act ifae s&ts f'rom aativitios o~duOtc8 in accob~ wllh lhu 19tatu's NCCP pddeiinae. Tho guidalfno~ allow low nfup tn 5 percent of the mining coastal scrub in Ymthem Csliforni~. Tba ServiQo mmts
for lam of habitat prrnnittbd throuph &on 7 or 10 of'thc Endangered $pabes Act, ia dditim
to that parmittcbthmwgh the *(a) Ne, againtrt thetcrtal S pm.
necnusc he ~ssuf~nve Ofh 4(d) ruk constituted a Izcd~rd action, the Strricu JV~R required lo
dFtczmint if& lorn Of 5 pcrccnt ofthc remaining habitat wodd jwpasdias
S&cs conducred thia analyds thfsugh development ofe biological opiniw.
opinion e.dmatsd thnf the low of 3 pnc.mt af the remnining Inbitat equated to 20,290 acres m.d
hu wnihttM rucimm~~ of tao epoofes, Thfs far, dweIlopment permitred under the 4(d) rule,
mtim 7 and sadion 10 proccsaoa hag wlllted in kns of apprclximtteIy 2,400 acre# of caaatal sage scrub in mthern Cdifhmia (lees than 1 percmt of the tad - hbitat)).
The Scrvice is mvaluathg the effccts of the 4(d) nrie hecause thw $3~ the lose of patcatchas lhmugb fssuaace Cvyhabitat loaa psumits (102 pairs') is approaehiq Mo mtigippted limit of1 16
pain (although actutd tdce of Rnalcat&@r$ is less kaue not all pennittod devehpnrent has acW1y occd.). Because we have nut yct rcachcd the limits of either the numbex of birds a
ncranga of hobitot &'tad through Wa Dntciilni pt'occss, develgpmmt my Ggn*w dwiag
reanalysis. In aWtion, onw the Multiple Habitat Conservation m~pgm, or othor tcgiad planuiq cftbrts aro: finalhad takc wiU be govmed by tho% plans and the Ititarlrn take alIowd
urxder thc 4(d) rule will no longer apply k~ thofie gh areas. Our ~V~UB~~OR prooms for the 4(d)
116 pda OfpMtGhm, The Sm~kc dctcniiined tl~t this amouilP bt'lc~ss. would not jmprdh
- - - . -._. de shuuld not affoFt those planning pcev BO%, - - -
<< % "c $ > rhf 37W -.&&.c*.- 5: . ., , *-
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In this evduation of thc 4(d) dc &c Scrvice. will assess tht current information regudisq the
wmt bf'tbcit hsclkt, twtd r3n cwrmf scientifio information; the effwn of daval~opWm\
pdm? sirice the 4(d) de wds irsued, and the he pi mi^ impact8 md 00129Cmticlfi
proposed 4tMn onpfne nih&mat planning tf3ioa1s.
The FMh CUlQ Wlldlitb Swvia rurltdpates hit the r:omull#liuii prbms will Iw cotfiplck within
Ihs nexl60 Bays. Should you have my qud+mS regardine; thia m4tb~, phis8 COnW SherqT
etffm gfthc guatwtb, Thc Eervioc will aq,scat E;xMiig populations et gnabat&ors and the
hlX#, ht4W ~Vr&nhKlI& QX l?lC 8t (61 p)43 I -9440
Siwiely,
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UElil c. KRbtttoh
Field Supvisor