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HomeMy WebLinkAbout2003-06-17; City Council; 17206; Carlsbad Habitat Management Plan.. z 0 F 0 4 J G z 3 0 0 CITY OF CARLSBAD -AGENDA BILL TITLE: CARLSBAD HABITAT MANAGEMENT PLAN (HMP) LCPA 02-10 SUGGESTED MODIFICATIONS / HMP ADDENDUM NO. 2/ IMPLEMENTING AGREEMENT (IA)/ and MHCP EIR ADDENDUM csr” CITY ATTY. CITY MGR a RECOMMENDED ACTION: That the City Council Adopt Resolutions No. 2003-154 2003-155 , 2003-156 , and 2003-157 , APPROVING an amendment to LCPA 02-10 to acknowledge the receipt of and incorporate the California Coastal Commission suggested modifications to LCPA 02-1 0; APPROVING amendments to the HMP Addendum No. 2 to incorporate the LCPA suggested modifications into the HMP; APPROVING revisions to the Implementing Agreement (IA) with the State and Federal Wildlife Agencies to effectuate the HMP; and APPROVING an addendum to the Environmental Impact Report (EIR) for the North County Multiple Habitat Conservation Plan (MHCP) to address the environmental effects of the Coastal Commission suggested modifications and corresponding amendments to the HMP. ITEM EXPLANATION: This item consists of four actions requiring City Council approval, which are as follows: 1. Approval of modifications to the Local Coastal Program Amendment (LCPA 02-10), previously approved by the City Council as required by the California Coastal Commission as part of its approval of the LCPA. Approval of amendments to the Second Addendum to the HMP, previously approved by the City Council, also as required by the Coastal Commission as part of its approval. Approval of revisions to the draft Implementing Agreement for the HMP, with the Wildlife Agencies, which was previously approved by City Council in 1999, but now requires some updating. Approval of the environmental review for the above three actions, which is proposed as an Addendum to the EIR certified for the North County MHCP by SANDAG in March, 2003. 2. 3. 4. The HMP Local Coastal Program Amendment (LCPA 02-10) was approved by the City Council in February 2003. The amendment was subsequently submitted to and reviewed by the California Coastal Commission. The Coastal Commission approved the city’s requested amendment with modifications. In order for the amendment to become effective, the city must accept the modifications, the acceptance must be reported to the Coastal Commission and then the city must incorporate them into the appropriate segments of the Local Coastal Program, as well as other applicable city implementing plans and ordinances. The modifications proposed by the Coastal Commission are contained in Attachment “A” to the City Council Resolution approving the modifications. As mentioned above, the city must also amend any other applicable plans, in this case the HMP, to incorporate the approved modifications. The Council previously adopted Addendum #2 to the HMP, which incorporated the amendments being proposed to the Local Coastal Program. Because the Coastal Commission made modifications, the previous HMP Addendum must now be amended to include the modifications. The revisions to the draft Implementing Agreement (IA) are not being proposed as a result of Coastal Commission action on the HMP. Rather, the revisions add to or amend previous language in order to bring the IA up-to-date based on language contained in several other IA’s for other agencies approved recently. The revised agreement showing the minor revisions with underline or strikeout is PAGE 2 OF AGENDA BILL NO. 17,206 attached to the Council Resolution approving this part of the recommended actions. Finally, incorporating the Coastal Commission modifications into the HMP Addendum and making revisions to the draft IA requires environmental review. Several previous environmental documents have been prepared and certified for the HMP. Most recently, the HMP was addressed as part of the EIR for the North County Multiple Habitat Conservation Plan (MHCP). Because it was the most recent environmental document pertaining to the HMP and the modifications to the HMP Addendum are minor and more protective of coastal resources from an environmental standpoint, an Addendum to the MHCP EIR has been prepared. The Addendum and the findings for preparing an EIR Addendum are included in the City Council Resolution regarding this action. Staff is recommending approval of all four of the actions pertaining to this item as listed and described above. ENVIRONMENTAL: Several previous environmental documents have been prepared and approved for the HMP. Most recently, the HMP was included and addressed as part of the Joint EIWEIS prepared for the North County MHCP. An addendum to this most recent document has now been prepared for the Coastal Commission suggested modifications and corresponding amendments to the HMP. An addendum is recommended because none of the conditions requiring the preparation of a subsequent EIR or Negative Declaration have occurred as described in Section 151 62 of the California Environmental Quality Act and restated in detail in the City Council resolution. FISCAL IMPACT: Approval of the Coastal Commission suggested modifications will not, in and of themselves, have any direct fiscal impacts on the City. As previously reported to Council, approximately $150,000 has been spent on processing the HMP through the Coastal Commission. Prior to the Coastal Commission’s involvement in August 2000, the City had expended approximately $1M over a nine- year period in preparing the HMP. EXHIBITS: 1. City Council Resolution No. 2003-154 (Suggested Modifications to LCPA) 2. 3. City Council Resolution No. 2003-156 (Amend Implementing Agreement) 4. City Council Resolution No. 2003-157 (Addendum to EIR) City Council Resolution No. 2003-155 (Amend Second Addendum to HMP) DEPARTMENT CONTACT: Don Rideout (760) 602-4602, dride@ci.carlsbad.ca.us Michael Holzmiller (760) 602-4601, mholz@ci.carlsbad.ca.us A 1 I ! 1( 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. *Oo3-15* A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A LOCAL COASTAL PROGRAM AMENDMENT, TO ACKNOWLEDGE AND ADOPT THE CALIFORNIA COASTAL COMMISSION SUGGESTED CASE NAME: MODIFICATIONS FOR LCPA 02-1 0. CASE NO.: LCPA 02-1 0 CARLSBAD HABITAT MANAGEMENT PLAN WHEREAS, the Planning Commission did on January 22, 2003 hold a duly noticed public hearing as prescribed by law to consider Local Coastal Program Amendment 02- 10 and adopted Planning Commission Resolution No. 5361 recommending to the City Council that it be approved; and WHEREAS, the City Council did on the 4th day of February, 2003 hold a duly noticed public hearing as prescribed by law to consider an amendment to the Local Coastal Program and acted to approve the amendment; and WHEREAS, the California Coastal Commission did on the 12th day of June, 2003 hold a duly noticed public hearing as prescribed by law to consider an amendment to the Local Coastal Program and acted to certify the amendment with suggested modifications; and WHEREAS, on the 17th day of June, 2003 the Carlsbad City Council formally acknowledged receipt of the Coastal Commission's resolution of certification, including the suggested modifications. The City Council of the City of Carlsbad, California does hereby resolve as follows: 7. That the above recitations are true and correct. 2. That the suggested modifications will meet the requirements of and conform with the policies of Chapter 3 (commencing with Section 30200) of the California Coastal Act to the extent necessary to achieve the basic state goals specified in Section 30001.5 of the Coastal Act. 3. That the suggested modifications to Local Coastal Program Amendment LCPA 02-1 0, are approved as shown in Attachment "A." 4. That staff is directed to initiate all actions required to satisfy and implement the suggested modifications to LCPA 02-1 0 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Carlsb d on the 17th day of June, 2003, by the following vote, to wit: AYES: Council Members Lewis, Finnila, Kulchin, Hall, Packard NOES: None ABSENT: None ATTEST: -2- Resolution No. 2003-154 PASSED AND ADOPTED at a regular meeting of the City Council of the City of 4 Attachment 'A" LCPA 02-1 0 COASTAL COMMISSION SUGGESTED MODIFICATIONS 1. 2. 3. (underlined sections represent language to be added - skhwt-sections represent language to be deleted) The following change should be made to the Mello I LUP segment revisions in the LCP amendment, on page 17: j. If any conflict should arise between these Policies of the LCP and the provisions of the HMP, the LCP shall take precedence. If any conflict should arise between the Dolicies of the certified Mello I LUP and the certified ImDlementation Plan, the policies of the certified Mello I LUP shall take precedence. The following change should be made to the Mello II LUP segment revisions in the LCP amendment, on page 42: i. If any conflict should arise between these Policies of the LCP and the provisions of the HMP, the LCP shall take precedence. If any conflict should arise between the Policies of the certified Mello II LUP and the certified Implementation Plan, the policies of the certified Mello II LUP shall take precedence. The following changes should be made to the Mello II LUP segment revisions in the LCP amendment, beginning on page number 51: - 3-8.1 342 Assessor's Parcel No. 212-120-33 (Hieatt) - No impact to vernal pools. Minimize impact to vernal pool watersheds. 3-8.23434 Assessor's Parcel No. 212-010-3 (Kirgis) - Preserve 75% of property with development clustered immediately adjacent to Kelly Ranch. 3-8.3 3-84 Assessor's Parcel No. 215-070-35 (Fernandez) - Cluster development on disturbed areas to the maximum extent feasible. Maximum 10% impact on CSS and SMC for access purposes. 3-8.43434 Assessor's Parcel No. 215-640-03 (Muroya) - Cluster development on disturbed areas to the maximum extent feasible. Maximum 10% impact on CSS and SMC for access purposes. 1 3-8.5 3-84 Assessor's Parcel No. 212-040-50 (Emerald Point) - Development limited to disturbed and non-native grassland areas. No impacts to native habitat allowed. - 3-8.6 3-844 Assessor's Parcel No. 21 5-020-06 (RWSB) - Development shall be limited to a maximum of 25% of the property, not including Poinsettia Lane construction, and shall be clustered to the maximum extent feasible along M&ed te disturbed portions of the property adjacent to Cassia Lane and the future Poinsettia Lane extension. Impacts to SMC habitat shall be minimized. hmi#ed a66e66. A wildlife corridor linkage oriented aenerallv north-south shall be provided on the eastern half of the propertv and desianed to connect to neiahborinu properties with existina or potential wildlife corridor linkaaes. Impacts to native habitat shall require onsite mithation throuah restoration and/or creation of habitat within the designed corridor linaae, in addition to any other required mithation. - 3-8.7 &f%U Assessor's Parcel No. 21 5-020-07 (Maldonado) - Develoment shall be concentrated alonu the Poinsettia Lane extension and shall be limited to the western half of the DropertY. -No impacts to the coast oak woodland and riparian area except for Poinsettia Lane extension. ~ -. The eastern half of the Dropertv is recommended for offsite mitiaation for other properties in Zone 21: however, at minimum a wildlife corridor linkaae oriented senerally north-south shall be Drovided on the eastern half of the oropertv and designed to connect to neiahborinn DroDerties with existim or potential wildlife corridor linkaaes. The corridor linkaae shall include any onsite coast oak woodland area. .. .. - 3-8.8 3-842 Assessor's Parcel No. 215-050-21 (Namikas) - Development shall be limited to a maximum of 25% of the property, not including Poinsettia Lane construction, and shall be clustered on the western portion of the property. No impacts to coast oak woodland, riparian areas or wetlands except for Poinsettia Lane extension. A wildlife corridor linkaae oriented nenerallv north-south shall be provided on the eastern portion of the ProDertv. include the onsite coast oak woodland area, and be designed to connect to neinhborina properties with existina or potential wildlife corridor linkaqes. Impacts to native habitat shall require onsite mitiaation throuah restoration andlor creation of habitat withln the desianated corridor linkaae, in addition to any other reauired mitiaation. 3-8.9 a-(Ma Assessor's Parcel No. 21 5-050-22 (Sudduth) - Development shall be limited to a maximum of 25% of the property, not including Poinsettia Lane 2 construction, and shall be clustered on the western portion of the property. No impact to coast oak woodland, riparian areas or wetlands except for Poinsettia Lane extension. A wildlife corridor linkaae oriented aenerallv north-south shall be provided on the eastern portion of the property. include the onsite coast oak woodland area. and be desianed to connect to neighborina proDerties with existina or potential wildlife corridor linkanes. Impacts to native habitat shall reauire onsite mitiaation throuah restoration and/or creation of habitat within the desianated corridor linkaqe, in addition to any other required mitiaation. - 3-8.10W Assessor's Parcel No. 215-05044, 45, 46, 47 (Kevane) - Development shall be limited to a maximum of 25% of the property, tx%M&&q and shall be clustered on the western portion of the property. No impacts to coast oak woodland, riparian areas or wetlands shall be allowed 1 ' . A wildlife corridor linkaae oriented generally north-south shall be provided on the eastern Portion of the DroDertv, includinq the coast oak woodland, and be desisned to connect to neiahboring properties with existina or potential wildlife corridor linkaqes. Impacts to native habitat shall require onsite mitiaation throuah restoration andlor creation of habitat within the desianated corridor linkaae, in addition to any other reauired mithation. 3-8.1 1 3-845 Assessor's Parcel No. 21 5-050-1 23 (Reiter) - Development shall be limited to a maximum of 25% of the property, wwt+wh+and shall be clustered on the western portion of the property. No impacts to coast oak woodland, riparian areas or wetlands shall be allowed d. A wildlife corridor linkaae oriented generallv north-south shall be provided on the eastern portion of the DroDettv, includinq the coast oak woodland, and be desianed to connect to neighboring properties with existina or potential wildlife corridor iinkaaes. Impacts to native habitat shall require onsite mitiaation throuah restoration and/or creation of habitat within the desianated corridor linkaae. in addition to anv other reauired mitiaation. 3-8.12 3-843 Assessor's Parcel No. 21 5-050-73 (Levatino) - Maximum 25% development clustered on the southern portion of the property. Buffer widths may be reduced and/or additional irnDacts mav be allowed to the extent necessarv to obtain site access, and/or to accommodate Circulation Road improvements identified in the certified LCP. Policy 3-7(e) on Page 52 of the Mello II LUP revisions shall be revised as follows: 4. e. The area shown as "Veterans Memorial Park Development Area" is designated for public recreational use. It is the intent of this policy that the public park area be developed so as to maximize public access and provide a variety of recreational opportunities. slopes and/or native veaetation shall be limited to Passive recreational facilities, such as recreational trails and picnic areas. Within the proposed development areas, aradina of Ssteep slopes with native veaetation shall be limited ~ to the minimum amount necessary to allow such uses. .. 3 5. Add a new policy to the Mello I LUP segment revisions on Page 19 of LCPA 02- 10 to read as follows: 7-1.1 5 Invasive Plants The use of invasive plant species in the landscarha for develoPments such as those identified in Table 12 of the HMP shall be Prohibited. 6. Add a new policy to the Mello II LUP segment revisions on Page 43 of LCPA 02- 10 to read as follows: 3-1.13 Invasive Plants The use of invasive plant species in the IandscaDins for developments such as those identified in Table 12 of the HMP shall be urohibited. 7. Add a new policy to the Agua Hedionda LUP segment revisions on Page 31 of LCPA 02-10 to read as follows: 3-13-1.14 Invasive Plants The use of invasive plant sDecies in the landscapina for develouments such as those identified in Table 12 of the HMP shall be prohibited. 4 ! 1( 1 1: 1: 14 l! 1( 1: 1t IS 2( 21 21 23 24 25 26 27 28 RESOLUTION NO. 2003-155 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING AN AMENDMENT TO THE SECOND ADDENDUM TO THE CARLSBAD HABITAT MANAGEMENT PLAN TO INCORPORATE MODIFICATIONS REQUIRED BY THE CALIFORNIA COASTAL COMMISSION. CASE NAME: HABITAT MANAGEMENT PLAN CASE NO.: HMP ADDENDUM #2 AMENDMENT WHEREAS, the City Council of the City of Carlsbad, California, on the 4th day of February, 2003 approved a Local Coastal Program Amendment (CLPA 02-10) to apply additional habitat conservation standards in the coastal zone and an Addendum to the Habitat Management Plan (HMP Addendum #2) to incorporate the additional standards into the HMP; and WHEREAS, LCPA 02-1 0 was subsequently approved by the California Coastal Commission with suggested modifications; and WHEREAS, the City Council has approved those suggested modifications; and WHEREAS, it is now necessary to amend HMP Addendum #2 to incorporate the Coastal Commission’s modifications. NOW, THEREFORE, the City Council of the City of Carlsbad, California, does hereby resolve as follows: 1, That the above recitations are true and correct. 2. That the amendments to the Second Addendum (HMP Addendum #2) are approved as shown in Attachment “8”. 3. That staff is directed to amend HMP Addendum #2 and is authorized to make any other necessary minor, non-substantive revisions, and to submit it to the Wildlife Agencies for final approval of the Carisbad Habitat Management Plan along with the proposed implementation Agreement. ... ... ... ... 8 1 i 1 - 4 5 c 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PASSED AND ADOPTED at a regular meeting of the City Council of the City 01 Carlsbad on the 17th day of June, 2003, by the following vote, to wit: AYES: Council Members Lewis, Finnila, Kulchin, Hall, Packard NOES: None ABSENT: Non'e ATTEST: (SEAL) Resolution No. 2003-155 -2- 9 Attachment “f3“ HMP ADDENDUM #2 AMENDMENTS TO ADDENDUM #2 AS REQUIRED BY COASTAL COMMISSION FOR CONSISTENCY WITH LOCAL COASTAL PROGRAM (underlined sections represent language to be added - &rke&sections represent language to be deleted) 1. The following changes should be made to policy 7-14 of the Second Addendum to the HMP, beginning on page 8: The following standards apply to those parcels in Zones 20 and 21 shown on Exhibit A to this Addendum, which are located within the biological core and linkage areas designated in the MHCP. They are in addition to the applicable, general conservation standards contained in 7-1 through 7-1 1 and the HMP. The standards are intended to direct development to existing disturbed areas to the maximum extent feasible, limit impacts to native vegetation, and establish viable core and linkage areas as designated in the HMP. In general, each property shall be allowed to develop at least 25% of the site with appropriate mitigation as specified in 7-8 through 7-1 1. When individual properties area proposed for rezoning or development, detailed biological information will be required to determine whether the proposal is consistent with the HMP, subsection 7 and the standards below, based upon the actual type, location and condition of onsite resources, and the appropriate locations of development and preservation area. One or more wildlife crossinqs under Poinsettia Lane of a sufficient size for larqer species shall be provided if recommended by the wildlife resource aqencies. e. k Assessor’s Parcel No. 212-120-33 (Hieatt) - No impact to vernal pools. Minimize impact to vernal pool watersheds. B. 6. Assessor’s Parcel No. 212-010-3 (Kirgis) - Preserve 75% of property with development clustered immediately adjacent to Kelly Ranch. - C. €L Assessor‘s Parcel No. 215-070-35 (Fernandez) - Cluster development on disturbed areas to the maximum extent feasible. Maximum 10% impact on CSS and SMC for access purposed. - D. & Assessor’s Parcel No. 215-040-03 (Muroya) - Cluster development on disturbed areas to the maximum extent feasible. Maximum 10% impact on CSS and SMC for access purposed. 1 7 7a IT E. C; Assessor’s Parcel No. 212-040-50 (Emerald Point) - Development limited to disturbed non-native grassland areas. No impacts to native habitat allowed. - F. d: Assessor’s Parcel No. 215-020-06 (RWSB) - Development shall be limited to a maximum of 25% of the property, not including Poinsettia Lane construction, and shall be clustered to the maximum extent feasible alonq ltwh&#e disturbed portions of the property adjacent to Cassia kae Road and the future Poinsettia Lane extension. 1 a66efs: A wildlife corridor linkaqe oriented qenerally north-south shall be provided on the eastern portion of the property and desinned to connect to neiqhboring properties with existinq or potential wildlife corridor linkaaes. Impacts to native habitat shall require onsite mitiqation throuqh restoration andlor creation of habitat within the desiqnated corridor linkaqe, in addition to any other required mitiqation. 0 .. - G. id;, Assessor’s Parcel No. 215-020-07 (Maldonado) - Development shall be concentrated alonq the Poinsettia Lane extension and shall be limited to the western half of the property. of fu-tuk4- -No impacts to the coast oak woodland and riparian area except for 3 27. The eastern half Poinsettia Lane extension. 2 of the property is recommended for offsite mitiqation for other properties in Zone 21; however, at minimum, a wildlife corridor linkaqe oriented qenerally north-south shall be provided on the eastern half of the property and desiqned to connect to neiahborinq properties with existinq or potential wildlife corridor linkaqes. The corridor linkaqe shall include any onsite coast oak woodland area. .. .. . - H. L Assessor’s Parcel No. 2150050-21 (Namikas) - Development shall be limited to a maximum of 25% of the property, not including Poinsettia Lane construction, and shall be clustered on the western portion of the property. No impacts to coast oak woodland, riparian areas or wetlands except for Poinsettia Lane extension. A wildlife corridor linkaqe oriented qenerally north-south shall be provided on the eastern portion of the property, includinq the onsite coast oak woodland area, and be desiqned to connect to neighborinq properties with existinq or potential wildlife corridor linkaqes. Impacts to native habitat shall require onsite mitigation throuqh restoration andlor creation of habitat within the desiqnated corridor linkaqe, in addition to any other required mitiqation. - I.* Assessor’s Parcel No. 21 5-050-22 (Sudduth) - Development shall be limited to a maximum of 25% of the property, not including Poinsettia Lane construction, and shall be clustered on the western portion of the property. No impacts to coast oak woodland, riparian areas or wetlands except for Poinsettia Lane extension. A wildlife corridor linkaqe oriented qenerally north-south shall be provided on the eastern portion of the property includinq the onsite coast oak woodland area and be desiqned to connect to neiqhborinq properties with existing or potential wildlife 2 corridor linkaqes. Impacts to native habitat shall require onsite mitiqation throuqh restoration and/or creation of habitat within the designated corridor linkaqe, in addition to any other required mitiqation. - J. PC, Assessor’s Parcel No. 215-050-44, 45, 46, 47 (Kevane) - Development shall be limited to a maximum of 25% of the property, fl GW&WGW+ and shall be clustered on the western portion of the property. No impacts to coast oak woodland, riparian areas or wetlands shall be allowed. exaq4 4 A wildlife corridor linkaqe oriented qenerally north- south shall be provided on the eastern portion of the propertv, includinq the coast oak woodland, and be desiqned to connect to neiqhborina properties with existinq or potential wildlife corridor linkaqes. Impacts to native habitat shall require onsite mitiqation throuqh restoration and/or creation of habitat within the desiqnated corridor linkaqe. in addition to any other required mitiqation. - K. 8: Assessor’s Parcel No. 21 5-050-12 (Reiter) - Development shall be limited to a maximum of 25% of the property, fl ’ , and shall be clustered on the western portion of the property. No impacts to coast oak woodland, riparian areas or wetlands shall be allowed extwskm. A wildlife corridor linkaqe oriented qenerallv north-south shall be provided on the eastern portion of the property, includinq the coast oak woodland, and be desiqned to connect to neiqhborinq properties with existinq or potential wildlife corridor linkaqes. Impacts to native habitat shall require onsite mitiqation throuuh restoration and/or creation of habitat within the desiqnated corridor linkage, in addition to any other required mitiqation. - L. P: Assessor’s Parcel No. 21 5-050-73 (Levantino) - Maximum 25% development clustered on the southern portion of the property. Buffer widths may be reduced and/or additional impacts may be allowed to the extent necessary to obtain site access, and/or to accommodate Circulation Road improvements identified in the certified LCP. 2. New hardline maps shall be added for the following properties: Aura Circle (Figure 36), Roesch Property (Figure 37), Carlsbad Promenade (Figure 38), Redeemer by the Sea (Figure 39), and Thompson-Tabata (Figure 40). 3. Text conditions for the Aura Circle hardline should be added to the second HMP addendum at the end of page IO: For Aura Circle (Fiqure 361, development shall be clustered on the south portion of the property. Gradinq shall be kept entirely off the laruest area of CSS in the north part of the site. Created slopes shall be reveaetated with coastal sage scrub, and existinq disturbed areas of the proiect site that are not identified for development on the hardline map shall be used for onsite mitiqation throuqh restoration/recreation of coastal sane scrub. Post-develoDment habitat area and open space shall be placed into the HMP preserve. 4. Revised hardline preserve maps shall be added for the following properties: HUB Park/SDG&E Property (Figure 17 - revised) and Kelly Ranch (Figure 12 - revised). 3 5. The existing Hardline Preserve map for the Kevane property (Figure 25) shall be removed . 6. Revise Policy 7.13(e) on Page 8 of the Second HMP Addendum as follows: e. The area shown as “Veterans Memorial Park Development Area” is designated for public recreational use. It is the intent of this policy that the public park area be developed so as to maximize public access and provide a variety of recreational opportunities. Development within steep slopes andlor native vegetation shall be limited to passive recreational facilities, such as recreational trails and picnic areas. Within the proposed development areas, qradinq of Ssteep slopes with native veqetation shall be limited to the minimum amount necessary to allow such uses. .. 7. Revise Tables 3, 6, 7 and 8 and Figures 6, 26 and 27 of the 1999 Draft HMP to reflect the changes to proposed habitat impacts and preserve areas, standards properties and hardlined properties. 8. Revise Policy 7-9 on Page 5 of the Second HMP Addendum as follows: h. All mitigations areas, onsite and offsite, shall be secured with a conservation easement in favor of the wildlife agencies. In addition, a preserve management plan shall be prepared for the mitigation areas, to the satisfaction of the City, the wildlife agencies, and the Coastal Commission. Phase I of the preserve manaqement plan shall be incorporated into the Implementation Proqram of the LCP throuqh an LCP amendment within one year of Commission certification of the HMP as part of the certified LCP. Phase 2 of the preserve manaqement plan shall be incorporated into the Implementation Proqram in the same manner within three years of Commission certification of the HMP as part of the certified LCP. The preserve management plan shall ensure adequate funding to protect the preserve as open space and to maintain the biological values of the mitigation areas in perpetuity. Management provisions and funding for mitiqation required to address habitat impacts shall be in place prior to aay the impacts for which the mitiqation is required 4e-kbkA ‘ . At a minimum, monitoring reports shall be required as a condition of development approval after the first and third year of I t-n- .. habitat mitigation efforts. Thc prr rn LYI . 9. Add to the Planning Standards for Zone 8 on page D-65 of the HMP regarding the Callaghan property (Planning Area L of Kelly Ranch) the following wording: Development of the Callaqhan property shall be required to preserve ODen Space as shown on the certified Open Space Map for Planning Area L approved by the California Coastal Commission as part of it’s action on LCP Amendment No. 2 - 99D (Kelly Ranch). 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2003-156 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING REVISIONS TO THE IMPLEMENTING AGREEMENT (IA) FOR THE CARLSBAD HABITAT MANAGEMENT PLAN TO UPDATE THE AGREEMENT AND TO AUTHORIZE THE MAYOR TO SIGN THE AGREEMENT WHEN IT IS FINALIZED WITH THE U. S. FISH AND WILDLIFE SERVICE AND THE CALIFORNIA DEPARTMENT OF FISH AND GAME. WHEREAS, an Implementing Agreement (IA) is necessary to administer the agreements made between the City of Carlsbad and the Wildlife Agencies (USFWS and CDFG) regarding the Carlsbad Habitat Management Plan (HMP) and the lO(a) Take Permit that will be issued to the City; and WHEREAS, the IA provides assurances to the City that projects can be permitted and constructed consistent with the HMP and it provides assurances to the Wildlife Agencies that the protections for species and habitat contained in the HMP will be carried out in . conjunction with such projects; and WHEREAS, on September 21, 1999, the City Council previously reviewed a draft of the Implementing Agreement; and WHEREAS, it is now necessary to revise the previous draft with certain text changes reflecting the most recent consultations with Wildlife Agencies staff; and WHEREAS, on June 17, 2003 the City Council reviewed the revisions and found them to be appropriate. NOW, THEREFORE, the City Council of the City of Carlsbad, does hereby resolve as follows: 1. 2. The revisions to the Implementing Agreement (IA) as contained in The above recitations are true and correct. Attachment “C are approved. 3. Staff is directed to submit the revised IA to the Wildlife Agencies and is authorized to make any additional non-substantive revisions requested by the Agencies. 4. The Mayor is authorized to sign the final version of the IA once the Carlsbad Habitat Management Plan has been approved by the Wildlife Agencies. / -4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C rlsb d PASSED AND ADOPTED at a regular meeting of the City Council of the City of the 17th day of June, 2003, by the following vote, to wit: AYES: Council Members Lewis, Finnila, Kulchin, Hall, Packard NOES: None ABSENT: None ATTEST: (SEAL) Resolution No. 2003-156 -2- Attachment "C" "JUNE 9,2000 USFWS DRAFT" UPDATED APRIL. 2003 IMPLEMENTING AGREEMENT by and among THE CITY OF CARLSBAD, THE CALIFORNIA DEPARTMENT OF FISH AND GAME, and the US. 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 1 . 0 2.0 3.0 4.0 5.0 6.0 7.0 8.0 9.0 10.0 11.0 TABLE OF CONTENTS RECITALS .............................................................................................................. 1 PURPOSE ................................................................................................................ 3 DEFINITIONS ......................................................................................................... 4 HABITAT CONSERVATION PLAN/NCCP PLAN ............................................. 7 INCORPORATION OF HMP ................................................................................. 8 LEGAL AUTHORITY OF THE USFWS ............................................................... 8 LEGAL AUTHORITY OF THE CDFG .................................................................. 9 SATISFACTION OF LEGAL REQUIREMENTS ................................................. 9 COOPERATIVE EFFORT ...................................................................................... 9 TERM ...................................................................................................................... 9 MUTUAL ASSURANCES ................................................................................... 10 1 1.1 1 1.2 11.3 Compliance with Applicable Laws ............................................................ 10 Conservation of HMP Species ................................................................... 10 ... “No Surprises” Assurances of USFWS .. and CDFG .............................................................................................................. 12 11.4 Listing of sDecies that are not HMP Covered Species ........................................... 14 1 1.5 .. Future Listings ............ .i ............................................................................ 14 A . Consideration of the HMP and Similar Plan ........................................ 14 B . HMP Covered Species ......................................................................... 14 C . Non-HMP Species ................................................................................ 15 Other Regulatory Permitting ...................................................................... 16 1 1.6 1 11.7 11.8 11.9 11.10 11.11 11.12 A . B . C . D . E . F . Other Permits ................................................................................. 16 Section 7 Consultations .................................................................. 16 Consultations by CDFG ................................................................. 16 Migratory Bird Treaty Act ............................................................. 17 Fully Protected Birds ..................................................................... 17 Future Environmental Documentation ........................................... 17 Special Rules Under Section 4(d) ............................................................. -18 Mitigation Bank ......................................................................................... 18 Growth Inducing Impacts .......................................................................... 18 Critical Habitat ........................................................................................... 18 Duty to Enforce .......................................................................................... 18 Severability fiom MHCP ........................................................................... 19 12.0 OBLIGATIONS OF CARLSBAD ........................................................................ 19 12.1 12.2 12.3 12.4 Preserve System ......................................................................................... 19 Existing Hardline Areas .................................... : ............................ 20 Proposed Hardline Areas ............................................................... 20 Standards Areas ............................................................................. 20 A . B . C . Project Mitigation Measures ...................................................................... 21 Regulatory Implementation Measures ....................................................... 21 Additional Implementation Measures ........................................................ 21 Record Keeping ............................................................................. 21 A . 2 13.0 B . Annual Review ............................................................................... 22 C . Preserve Management and Monitoring Plan .................................. 22 12.5 Participation in Regional Conservation Efforts ......................................... 22 1 2.6 Cooperative Regional Implementation ...................................................... 22 MONITORING AND REPORTING ..................................................................... 23 13.1 Planned Periodic Reports ........................................................................... 23 13.2 Other reports .............................................................................................. 23 13.3 Certification of Reports .............................................................................. 23 13.4 Monitoring by USFWS and CDFG ............................................................ 23 1s.o 165.0 44.3 L:L .. ADAPTIVE MANAGEMENT .............................................................................. 24 154.1 Reductions in mitigation ............................................................................ 24 154.2 No increase in take ..................................................................................... 24 FUNDING .............................................................................................................. 24 165.1 162.2 165.3 165.4 165.5 165.6 MHCP Core Area Participation ................................................................. 24 Preserve Management Plan ........................................................................ 24 Management of the Habitat at the Lake Calavera City Mitigation Bank .. 24 Program Adrmnistration ............................................................................. 25 Habitat In-Lieu Mitigation Fee .................................................................. 25 Limits on Funding ...................................................................................... 25 .. 3 . i' ' ... 7 i 136.0 182.0 198.0 OBLIGATIONS OF USFWS AND CDFG ........................................................... 25 136.1 Obligations of USFWS .............................................................................. 25 136.2 Obligations of CDFG ................................................................................. 25 ENVIRONMENTAL REVIEW ............................................................................ 26 182.1 Federal Law -NEiPA .................................................................................. 26 182.2 State Law -CEQA ..................................................................................... 26 ISSUANCE OF THE PERMIT ............................................................................. 26 198.1 Findings -USFWS ..................................................................................... 26 Incidental Take ................ : .............................................................. 26 Minimize and Mitigate ................................................................... 26 Adequate Funding .......................................................................... 26 A . B . C . D . E . Other Measures .............................................................................. 26 198.2 Issuance of Take Authorization -USFWS ................................................. 26 198.3 Findings -CDFG ........................................................................................ 27 198.4 Issuance of Take Authorizations -CDFG .................................................. 27 198.5 Findings -Section 4(d) Special Rule .......................................................... 27 No Jeopardy ................................................................................... 26 2QB.O REMEDIES AND ENFORCEMENT ................................................................... 27 ?0u . 1 Remedies In General .................................................................................. 27 A . No Monetary Damages ........................................................................ 27 B . Injunctive and Temporary Relief ......................................................... 28 4 240.0 THE PERMIT REMEDIES ................................................................................... 28 240.1 A . The CESA/NCCP Authorization ................................................... 28 lO(a) Permit ................................................................................... 29 2?1.0 TERMINATION .................................................................................................... 30 232.0 PLAN AMENDMENT .......................................................................................... 31 232.1 Minor Amendments ................................................................................... 31 B . 232.2 Major Amendments ................................................................................... 31 232.3 Standards Areas ......................................................................................... 32 232.4 City Projects ............................................................................................... 32 242.0 FORCE MAJEURE ............................................................................................... 32 254.0 MISCELLANEOUS PROVISIONS ...................................................................... 33 254.1 No Partnership ........................................................................................... 33 254.2 Successors and Assigns .............................................................................. 33 254.3 Notice ......................................................................................................... 33 2H.4 Entire Agreement ....................................................................................... 33 2H.5 Elected Officials Not to Benefit ................................................................. 33 29.6 Availability of Funds ................................................................................. 33 254.7 Duplicate Originals .................................................................................... 34 254.8 Governing Law .......................................................................................... 34 2H.9 Reference to Regulations ........................................................................... 34 254.10 Applicable Laws ........................................................................................ 34 254.1 1 No Third Party Beneficiaries ..................................................................... 34 5 1.0 RECITALS This Implementing Agreement ("Agreement"), made and entered into as of , 20003 (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 ("USFWS'), hereinafter collectively called the "Parties," defines the Parties' roles and responsibilities and provides a common understanding of actions that will be undertaken to minimize and mitigate the effects on the species covered under the HMP and their habitats in future land development 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 1980'~~ 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 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 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. $3 1531 et seq., as amended ("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, the California Endangered Species Act and the NCCP Act. Consistent with the NCCP Act, the HMP is a broad-based habitat planning effort intended to provide for effective protection and conservation of wildlife and plant species 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 regionk 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 47 species of plants and animals. The HMP is a product of numerous studies 1 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 One of the goals of the HMP is to conserve biodiversity, including federally listed species, in the HMP Area 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 habitat conservation plan for species covered by the HMP. It addresses the needs of 47 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 and species endangerment and creates a plan to minimize and mitigate for the potential loss of HMP Species and their habitat resulting from the direct and indirect impacts of fbture 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 Authorizations (and an acknowledgment that the HMP satisfies the conditions established in the Section 4(d) Special Rule for the coastal California gnatcatcher) for HMP species covered by the HMP which is incidental to land development and other lawful land uses authorized by Carlsbad except as provided in Section 11.6.E. of this Agreement. 1.10 The Take Authorizations will authorize the Incidental Take of all HMP wildlife 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 11.6.E of this Agreement. Conserving unlisted HMP Species (the "taking" of which is not unlawful under the ESA) the same as listed HMP covered Species (the taking of which is unlawfbl in the absence of a Take Authorization) 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 species will receive the benefit of the Service'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 fbture development project mitigation needs. 2 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 a CESA/NCCP Authorization. The CDFG has approved the HMP, and the USFWS has issued written concurrence that the HMP meets the statutory criteria for issuance of a Section lO(a) Permit. 1.14 The HMP is also a component of the North Countv 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 , 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. 1.146 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 Authorizations necessary to allow construction. of 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 3 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. 3.0 DEFINITIONS The following terms as used in this Agreement shall have the meanings set forth below: 3.1 The term "Agreement" means this 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 $9 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 $9 2050 et seq.), including all regulations promulgated pursuant to that Act. 3.5 The term "CESAMCCP Authorization" means the authorization issued in accordance with this agreement by CDFG under the NCCP Act, California Fish and Game Code and Game Commission under the NCCP Act, 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 candidates for such a listing. 3.6 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 at Section G of the HMP. 3.7 The term Tore" means a component of the preserve system established under the HMP, consisting of large blocks of conserved habitat capable of sustaining HMP Species in perpetuity. 3.8 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)(I), D(3)(A), and D(3)(B) and Addendum #2 of the HMP and conserved as described under the HMP. 3.9 The term "Covered Activities" means land development 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. 4 3.10 The term "Covered Lands" means the lands upon which the Take Authorizations 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 HMP. 3.1 1 The term "ESA" means the federal Endangered Species Act (16 U.S.C.@j 153 1 et seq.), including all regulations promulgated pursuant to that Act. 3.12 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. 3.13 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. 3.14 "Habitat Conservation Plan" and "HCP" mean the Habitat Management Plan ("HMP") prepared by Carlsbad pursuant to Section lO(a)(2)(A) of the ESA, (16 U.S.C. 0 1539(a)(2)(A~, dated December, 1999 with Addendum #2 dated December 16,2002. 3.15 The term "HMP" means the Carlsbad Habitat Management Plan. 3.16 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 . 3.17 The term "HMP Covered Species'' means those species listed in Table 2 of the HMP, each of which the HMP addresses in a manner sufficient to meet all of the criteria for issuing an incidental take permit under the ESA, CESA and NCCP Act. 3.18 The term "Incidental Take" means the taking of an HMP species incidental to and not the purpose of carrying out otherwise lawful activities. 3.19 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. 3.20 "Local Facilities Management Zone" (I'LFMZI') means those 25 areas defined in the City's Growth Management Program for planning purposes. 3.21 The term "MBTA" means the federal Migratory Bird Treaty Act (16 U.S.C. 55 701 et seq.), including all regulations promulgated pursuant to that Act. 3.22 The term "MHCP" means the Multiple Habitat Conservation Plan, 3 comprehensive subregional dan, adopted in March, 2003. which addresses multiple species 5 habitat needs and the preservation of native vegetation in a 175 square mile area in northwestern San Dieno County. California. 3.223 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 $6 2800, et seq.), including all regulations promulgated pursuant to that Act. 3.2% 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 "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(bM5) that extends certain assurances regarding future mitigation obligations to permittees obtaining incidental take Dermits under Section 10(a) of the Federal ESA. 3.246 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 species as described in Sections C, D, E, F, and Appendix C of the HMP and including those measures described 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 Authorizations. 3.252 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. 3.268 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. 3.279 The term "Public Lands" means property owned by Carlsbad, as depicted in Figure 31 and as illustrated in Figures 3 and 4 of the HMP . 3.2834, 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 the Incidental Take of the coastal California gnatcatcher in the course of certain land use activities is lawfid. 3.292 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. 9 1539(a)(l)(B)) to allow the Incidental Take of HMP Covered Species. 6 3.302 The term "Special Resource Area" or "SRA" 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. 3.3+3 The term "Standards9' means special land use regulations to be adopted by Carlsbad to implement the HMP, as described in Sections D and E of the HMP. 3.324 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. 3.335 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. 3.346 The term "Take Authorization" means the Section 1O(a) Permit, the CESA 208 1 Permit, andor the CESA/NCCP Authorization. 3.357 The term YJnforeseen 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. 3.368 "USFWS" means the United States Fish and Wildlife Service, an agency of the United States Department of the Interior. 3.39 "Wetlands" means generally those areas that are inundated or saturated by surface or ground water at a frequencv 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 naturallv 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. 4.0 HABITAT CONSERVATION PLANNCCP PLAN Pursuant to Section 10(a)(2)(A) of the ESA (16 U.S.C. 5 1539(a)(2)(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 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 a 2081 Permit and CESA/NCCP Authorization, 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 7 Section 4(d) Special Rule to allow the Incidental Take of the coastal California gnatcatcher within HMP Area. 5.0 INCORPORATION OF HMP The Hh4P 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. @j 742(f) et seq.). Section lO(a)(l)(B) of the ESA, 16 U.S.C. 5 1539(a)(l)(B), expressly authorizes the USFWS to issue a Section lO(a) Permit to allow the Incidental Take of species listed as threatened or endangered under the ESA. The legislative history of Section 1 O(a)( 1)(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 hrther mitigation requirements should be imposed if the 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. a 49 7.0 LEGAL AUTHORITY OF THE CDFG The CDFG enters into this Agreement pursuant to its authority under the CESA and the NCCP Act. CDFG may authorize the take of HMP Covered Species, including species listed under CESA, pursuant to Fish and Game Code section 2081 andor 2835 if the HMP provides for the conservation and management of those species. In addition, under Fish and Game Code section 2830, the California Fish and Game Commission may authorize the take of any HMP Covered Species that may become listed as candidate species under CESA. 8.0 SATISFACTION OF LEGAL REOUIREMENTS In order to fulfill the legal requirements that will allow the USFWS to issue the Section lO(a) Permit, an HCP must provide measures that are intended to ensure that any Take will be incidental; that the impacts of such Incidental Take will, to the maximum extent practicable, be minimized and mitigated; that procedures to deal with Changed Circumstances and Unforeseen Circumstances are provided; that adequate funding to implement the HCP will be provided; and that the Incidental Take will not appreciably reduce the likelihood of the survival and recovery of the HMP Covered Species in the wild. The USFWS finds that the HMP as implemented pursuant to this Agreement does provide such measures, and does satisfy the legal requirements necessary for the USFWS to issue a Section 1O(a) Permit authorizing the Incidental Take of HMP Covered Species, and to provide the regulatory assurances contained in USFWS's No Surprises rule at 50 C.F.R. section 17.22(b)(5) and 17.32(b)(5). Likewise, the CDFG finds that the HMP as implemented pursuant to this Agreement satisfies the standard in Fish and Game Code section 2835 that an NCCP Plan provide for the conservation and management of the species, and is eligible for the specific assurances contained in this Agreement. 9.0 COOPERATIVE EFFORT In order that each of the legal requirements as set forth in Paragraph 8.0 hereof 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. 10.0 TERM 10.1 This Agreement, and the HMP, will become effective with respect to USFWS on the date USFWS issues the Section lO(a)(I)(B) permit and with respect to CDFG on the date CDFG issues the NCCP take authorization. This Agreement, the HMP, and the Take Authorizations will remain in effect for a period of 50 years from the issuance of the original Take Authorizations, except as otherwise provided in this Agreement or in section G of the HMP 10.2 Upon agreement of the Parties and compliance with all applicable laws, the Take Authorizations 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 9 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 HCP and this Agreement for the same amount of time, subject to any modifications the USFWS andor CDFG may require at the time of extension. 10.3 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 therefore the intention of the Parties that the provisions of the HMP and of this Agreement regarding the preservation and maintenance 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. 11 .O MUTUAL ASSURANCES 11.1 Compliance with Amlicable Laws. Compliance with the terms of this Agreement, the HMP, and the Take Authorizations 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 Authorizations, 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 CESA, the NCCP Act, and the California Native Plant Protection Act ("NPPA") (California-Fish and Game Code $ 1900, et seq.). 11.2 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 HMP 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 Authorizations. 10 11 \ significant adverse with Carlsbad regarding the situation, the situation, provide present information 1 1.3 ‘No Sumrises’ 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 uroperlv 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 Ameement 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 subiect to the restrictions on additional mitigation contained in the No Surprises Rule. If USFWS makes a finding of unforeseen circumstances. durinp the period necessary to determine the nature and location of additional or modified mitigation, Carlsbad will avoid contributing to appreciablv reducinc. the likelihood of the survival and recovery of the affected species and will exercise its enforcement authorities as provided bv law as to third persons under Carlsbad’s iurisdiction and control that are canying out Covered Activities, to avoid such third persons contributing to appreciably reducinp the likelihood of the survival and recovery.of the affected species. 12 /2) CDFG Assurances. Except as otherwise Drovided in this subsection or required by law. CDFG shall not reauire 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 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 led status of fully protected species and non-covered species. are not Unforeseen Circumstances and therefore are not subiect to these assurances. J3) Unforeseen Circumstances Finding. In the event that USFWS, CDFG or Carlsbad believes that Unforeseen Circumstances may exist in accordance with the “No Surprises” rule, 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 Circwnstances pursuant to the requirements of 50 CFR 5 17.22(b)(5)(iii)(C) and 17.32(b)(5)(iii)(C). Within fifteen (15) days of receiving such notice. the CITY. 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 andor 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&)(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. 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 geomaphic area covered by the HMP that can reasonably be anticipated by Carlsbad, USFWS, and CDFG and that can be planned for in the HMP (ex. the listing of a new non-covered species, or a fire or other natural catastrophic event in areas prone to such events). Changed circumstances and planned responses to those circumstances are described in Section G. of the HMP. 13 J2) Carlsbad - Initiated Response to Changed Circumstances. Carlsbad will immediately notify USFWS and CDFG upon learning that any of the Changed Circumstances listed in Section G of the HMP has occurred. and shall provide written notice within seven (7) days. Within 30 days. Carlsbad shall modify its activities and shall reauire 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. 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 do not constitute Unforeseen Circumstances or require amendment of the Section 1 O(a)(l )(B) Permit, NCCP Authorization, 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 reauired changes. Within thirty (30) days after receiving such notice, Carlsbad. will make the reauired changes and report to USFWS and CDFG on its action. Such changes are provided for in the HMP. and do not constitute Unforeseen Circumstances or require amendment of the Section lO(a)(l)(B) Permit, NCCP Authorization. or the HMP. The USFWS may extend the period of time in which to imtdement Carlsbad’s planned responses upon Carlsbad’s showing of good cause. which extension will not be unreasonably withheld. 11.4 Listing of species that are not HMP Covered Species. In the event that a species which is not an HMP Covered Species that may be affected by covered activities becomes listed under the ESA, the USFWS will work with Carlsbad to identify measures. if any, necessary to avoid take of, ieopardy to, or adverse modification of the critical habitat of. the species as a result of covered activities. Carlsbad will implement these measures until the Take Authorizations are amended to include such species, or until the USFWS notifies Carlsbad that such measures are no longer needed to avoid ieopardv to, take of, or adverse modification of the critical habitat of. the non-covered species. 1 1.5 Future Listings. A. Consideration of the HMP and Similar Plans. To the extent required and permitted by the ESA, the CESA and the NCCP Act, the USFWS and CDFG shall take into account the species and habitat conservation provided under the HMP 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. B. HMP Covered Species. If a an HMP Covered Species is not listed as threatened or endangered under the ESA as of the Effective Date, and becomes so listed during the term of this Agreement, then the Section lO(a) Permit shall become effective with respect to 14 such species concurrent with its listing as threatened or endangered. If a HMP Covered Species is not listed as threatened or endangered under the CESA as of the Effective Date, and becomes so listed during the term of this Agreement or becomes accepted by the California Fish and Game Commission as a candidate for such listing, then the CESA 2081 Permit and CESN/NCCP Authorization shall become effective with respect to such species concurrent with its listing as threatened or endangered or its acceptance by the California Fish and Game Commission as a candidate for such listing. C. Non-HMP 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 Authorizations, then the parties will use reasonable efforts to: (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. 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 4424 11.4 of this Agreement. Upon application by Carlsbad meeting the requirements of the ESA, CESA and NCCP Act, and following compliance with applicable procedures under those Acts, Incidental Take of such species shall be authorized. 1. Adequate Conservation Measures Already in HMP. If the conservation measures already contained in the HMP are adequate to fulfill the conservation measures identified pursuant to subsection C above, as determined by USFWS and CDFG, then upon application by Carlsbad for Take Authorization for such species and following satisfaction of applicable review procedures as required by the ESA, CESA and NCCP Act, the Parties will amend the HMP and this Agreement to add such species to the HMP Covered Species and Take Authorizations, effective for the remaining term of the Take Authorization. 2. Inadequate Conservation Measures in the HMP. a. Additional Conservation Measure Priorities. If the conservation measures already contained in the HMP do not adequately fulfill the conservation measures identified pursuant to subsection C above, then upon written request by Carlsbad, the USFWS and CDFG will work with Carlsbad to identify the additional conservation measures necessary to add such species to the HMP consistent with section E.3 of the HMP and the Take Authorizations. Such additional conservation measures are not subject to or limited by the No Surprises regulatory assurances. In developing a set of additional conservation measures, the Parties will look to whether 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. 15 b. Developina Additional Conservation Measures. If the foregoing options are not adequate to fblfill the conservation measures identified pursuant to subsection C above, then the USFWS and CDFG will determine, consistent with the ESA, CESA 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 4-44 11.4 of this Agreement, Carlsbad will not be required to approve or implement these additional conservation measures until such time as the species is added to Take Authorizations. . C. Amlication for Take Authorization. Carlsbad makes no representation or commitment to pursue a Take Authorization for such non-HMP species, and in the absence of any such Take Authorization, 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. 11.6 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 these 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 parties 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 hctions and values consistent with Section D.6 of the HMP. B. Section 7 Consultations. To the maximum lawful extent consistent with 50 CFR Part 402, in any consultation under Section 7 of the ESA involving Carlsbad andor an existing Third Party Beneficiary with regard to an HMP covered species, 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 by CDFG. Due to the comprehensive nature of the HMP, to the maximum lawful extent for projects and/or 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. 16 D. Migratory Bird Treaty Act. The Section lO(a) Permit issued pursuant to this Agreement also constitutes a Special Purpose Permit under 50 C.F .R. § 21.27 for the Take of those HMP 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 conjunction with any public or private land development project authorized and approved by Carlsbad in accordance with the HMP, this Agreement and the Take Authorizations 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 1O(a) Permit remains in effect for such period. Such Special Purpose Permit shall be renewed, provided that Carlsbad continues to fblfill its obligations. under the HMP, this Agreement and the Take Authorizations. 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. Fullv Protected Birds. Although four fully protected birds (the American peregrine falcon, California brown pelican, California least tern and light-footed clapper rail) are included as HMP Covered Species, take of these species is prohibited by Fish and Game Code section 351 1 and therefore cannot be authorized pursuant to Fish and Game Code section 2835. CDFG acknowledges and agrees that if the measures set forth in the HMP, this Agreement, and the Take Authorizations are fully complied with, the HMP Activities are not likely to result in take (as defined in the California Fish and Game Code) of these species. In addition, CDFG has found that impacts to the habitats of these species will be conserved and managed if the HMP, this Agreement and the T.ake Authorizations are fblly complied with. If CDFG discovers that the conservation measures in the HMP 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 is believes are necessary to avoid Take of these species to comply with Fish and Game Code section 3511. Carlsbad shall implement such measures proposed by CDFG or such other measures agreed to by the Parties as adequate to avoid violation of this code section. . If at any time there is a change in state law such that the CDFG may issue a CESA/NCCP Authorization or other permit allowing the Take of any species subject to California Fish and Game Code sections 35 11, Carlsbad may apply for an amendment of the CESA/NCCP Authorization for such species. In processing any such application for a permit amendment or a new amendment, CDFG shall recognize Take avoidance and mitigation measures already provided in the HMP and shall issue the amended authorization under the same terms and conditions as the existing CESA/NCCP Authorization, to the extent permitted by law. CDFG is similarly unable to authorize the take of two other species identified in the HMP as species that may be added to the covered species list in the future: the golden eagle, which is a fully protected bird under Fish and Game Code section 35 11, and the mountain lion, which is protected under Fish and Game Code section 4700. F. Future Environmental Documentation. In issuing any permits or other approvals pertaining to land development activities within Carlsbad that affect HMP Covered Species, and absent a finding of Unforeseen Circumstances under Section 11 of this Agreement, and subject to the requirements of the National Environmental Policy Act ("NEPA"), the USFWS shall rely on and shall utilize the NEPA document prepared in conjunction with the 17 38 HMP as the NEPA environmental document for such permits and approvals and for any other approval process subject to its jurisdiction or involvement with regard to potential impacts on HMP Species. CDFG shall rely on and shall utilize the California Environmental Quality Act ("CEQA 'I) documents prepared in conjunction with the HMP and as appropriate CEQA documentation for any future approvals regarding potential impacts to HMP Species related to land development approvals within the HMP Area. 11.7 Special Rules Under Section 4(d) 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 5 1533(d), as implemented by 50 C.F.R. 5 17.31(c)), the USFWS shall consider the HMP in developing the special rule, and shall ensure that the special rule will not affect the validity or alter the terms of any Take Authorization for HMP Covered Species. 1 1.8 Mitigation Bank. As described in Section D.3.B of the HMP, the HMP establishes a mitigation bank for City Capital Improvement projects (Appendix B) in Carlsbad using Carlsbad's Lake Calavera property. The bank consists of 266.1 total acres. These mitigation bank credits will be available to mitigate public projects undertaken by Carlsbad upon completion of a Mitigation Bank Agreement. The parties shall enter into a mitigation bank agreement consistent with State mitigation banking policy. As of the Effective Date, the mitigation bank contains total credits of 206.55 acres which can be used to mitigate city projects on an acre for acre basis for all impacts to HMP species and their habitats except impacts to coastal sage scrub occupied by the gnatcatcher, southern maritime chaparral, maritime succulent scrub and wetlands. Carlsbad shall ensure conservation of the Calavera property by granting a conservation easement to CDFG or an acceptable third party. 1 1.9 Growth Inducing Impacts. Neither Carlsbad, nor any proponent of a land development project approved by Carlsbad pursuant to the HMP, shall be required to provide any additional mitigation beyond that required under the HMP for any growth inducing impacts on the Covered Lands area that such project may have on a HMP Covered Species. 1 1.10 Critical Habitat. The USFWS agrees that it will consider the HMP in its preparation of any proposed designation of critical habitat concerning any HMP 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 Species in a manner that will provide for the conservation of the HMP species. Except as otherwise provided in this Agreement, and consistent with the assurances provided under Section 11 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 pursuant to the HMP commit additional land, additional land restrictions, or additional financial compensation beyond that provided for under the HMP and pursuant to this Agreement. 11.1 1 Duty to Enforce. Carlsbad agrees to take all actions within its authority to enforce the terms of the Take Authorizations, the HMP, and this Agreement as to itself and to all persons or entities subject to the requirements established by this Agreement, 18 specifically including the development of permitting and approval requirements set forth in Section 12 of this agreement. Furthermore, consistent with this Agreement Carlsbad shall exercise the fill 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. 1 1.12 Severabilitv 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 Authorizations issued to Carlsbad pursuant to the HMP and this Agreement are independent of ~ ... and severable from other subarea plans and take authorizations which will be issued to other cities Darticipating in the MHCP. 12.0 OBLIGATIONS OF CARLSBAD Carlsbad will fblly and faithfully perform all obligations assigned to it under this Agreement, the HMP, and the Take Authorizations. 12.1 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 Authorizations, 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 12.1 A and B and 12.3 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 12.3 of this Agreement. Carlsbad shall prepare an analysis of the effect of the proposed change or Amendment on the HMP on Carlsbad's 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 Carlsbad's ability to implement the HMP or achieve 19 the conservation goals of the HMF would be grounds for a reevaluation of Carlsbad's Take Authorizations under Section 20 of this Agreement. A. Existing 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. Prouosed Hardline Areas. 1. Concmt. 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 conseriration 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. Suecific Areas. The specific Proposed Hardline Areas consist of: Carlsbad Municipal Golf Course, Carlsbad Police Training Range Project, Lake Calavera, Veteran's Memorial Park, Hub Park, the Zone 19 park, Manzanita Properties, Hub ParWSDG&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, the Shelley property, and the Kevane 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 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 provided in Section 12.1 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. 20 12.2 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. 12.3 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 6 65858 to require compliance with the HMP while permanent regulatory measures are drafted and approved. No take shall be allowed under the Take Authorization 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 2 months of the Effective Date. C. Carlsbad will amend its Open Space Ordinance (Carlsbad Municipal Code undevelopable open space lands preserved exclusively for conservation purposes consistent with the HMP. 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 =months of the Effective Date. $21.53.230) to add Conserved Habitat Areas Sia as D. 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 fdr 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 CEOA and associated mitigation monitorinP and reporting Drograms. and required by the City as legally enforceable conditions of approval. 12.4 Additional Implementation Measures. A. RecordKeePinq. So long as this Agreement and the Take Authorizations remain in effect, Carlsbad will continually account, by project and cumulatively, for the amount and location of habitat acreage (by habitat type) lost and presewed 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 21 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. B. Annual Review. The Parties will meet annually to monitor HMP implementation, discuss pertinent issues, and coordinate activities relating to overall preserve system monitoring, maintenance and planning. C. Preserve Management and Monitoring Plan. As described in Section E. 5.B of the HMP, the City will prepare a Preserve Management and Monitoring Plan which will address in detail the implementation of the preserve management and monitoring recommendations identified in Section F of the HMP. The Plan shall be completed within one year of the Effective Date. The plan shall be submitted to the USFWS and CDFG for review and concurrence that the plan conforms to the "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. The ulan shall also include detailed funding sources for ureserve management including. but not limited to, City hding of Citv- owned land, developer endowments for urivate lands and existing fbnding mechanisms as described in Section E of the HMP. 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 Service 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 accordawe 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. 12.5 Particiuation in Renional Conservation Efforts. Biological analyses associated with the preparation of the North County Subregional Multiple Species Habitat Conservation Plan (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 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. 12.6 Cooperative Regional Implementation. Carlsbad will participate in the MHCP Elected Officials Committee which will be formed to coordinate subarea plan policies, 22 subregional managing and monitorinv of Dreserve lands and regional funding. The Committee will be formed once two or more MHCP cities have entered into implementing agreements with USFWS. 13.0 MONITORING AND REPORTING 13.1 Planned Periodic Rmorts. As described in the HMP and in section 12.4 of this agreement, Carlsbad will submit periodic reports describing its activities and results of the preserve management and monitoring program provided for in the HMP . 13.2 Other reports. Carlsbad will provide, within 30 days of being requested by the USFWS or CDFG, any additional information in its possession or control related to implementation of the HMP that is requested by USFWS or CDFG for the purpose of assessing whether the terms and conditions of the Take Authorizations and the HMP, including the HMP’s preserve management and monitoring plan to be developed in one year, are being fully implemented. 13.3 Certification of ReDorts. All reports will include the following certification from a responsible City 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. 13.4 Monitoring by USFWS and CDFG. The USFWS or CDFG may conduct inspection and monitoring in connection with the permit in accordance with their regulations. 23 1A2 T I ..J Y 154.0 ADAPTIVE MANAGEMENT 1%. 1 Reductions in mitigation. Carlsbad will not implement adaptive management changes that may result in less mitigation than provided for the HMP Covered Species under the original terms of the KMP, 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 232.2 of this Agreement. 19.2 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 232.2 of this agreement. 165.0 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: 163.1 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 will be provided from the sources described in Section E.6.A. of the HMP. 165.2 Preserve Management Plan. Carlsbad will prepare a Preserve Management Plan, described in Section 12.4C, above. The estimated total cost for Plan preparation is $100,00&, E 165.3 Management of the Habitat at the Lake Calavera City Mitigation Bank. Carlsbad's cost for management of public lands at Lake Calavera is estimated to cost 24 approximately $18,750 per year in 1999 dollars and will be adjusted annually in the future for inflation. Notwithstanding this estimate, Carlsbad will fund management of the Lake Calavera Mitigation Bank consistent with Section F of the HMP in perpetuity. This cost will be paid for using city funds. Funding of the management of existing Hardline Habitat Conservation areas will be provided as described in existing conditions of project approvals. 165.4 Promam Administration. Carlsbad's administration of the HMP is estimated to cost approximately $50,000 per year in 1999 dollars and wi11 be adjusted as necessary for inflation and as otherwise necessary to properly implement the HMP. This cost will be paid for using city funds or funds raised by a Habitat In-Lieu Mitigation Fee, described below. 165.5 Habitat In-Lieu Mitination Fee. To offset its costs in preparing and implementing the HMP, and to provide funding for the conveyance and management of land in the MHCP core area, Carlsbad will establish a Habitat In-Lieu Mitigation Fee consistent with Section E.6 of the HMP. If for any reason Carlsbad is unable to enact such a Habitat In-Lieu Mitigation Fee, or such fee cannot be enforced, or funds collected under the fee are insufficient to provide funding for the conveyance and management of land in the MHCP core area, Carlsbad shall remain obligated to ensure that the HMP is fully funded, including permanent management of the Conserved Habitat Areas. 165.6 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 hnded 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. 176.0 OBLIGATIONS OF USFWS AND CDFG 136.1 Obligations 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. The USFWS shall include in its annual budget request sufficient funds to fulfill its obligations under the HMP, this Agreement and the Section 1O(a) permit. 136.2 Obligations of CDFG. Upon execution of this Agreement by all parties satisfaction of all other applicable legal requirements, CDFG will issue Carlsbad a CESA 2081 Permit and a CESNNCCP Authorization incidental take by Carlsbad of HMP Covered Species resulting from covered activities on the covered lands. The CDFG shall include in its annual budget request sufficient funds to fulfill its obligations under the HMP, this Agreement, the CESA 2081 Permit and CESA/NCCP Authorization. In consultation with USFWS, CDFG shall prepare and implement a management plan for those portions of conservation habitat areas under its jurisdiction and control. The management plan shall be consistent with Section F of the HMP. 25 182.0 ENVIRONMENTAL REVIEW 182.1 Federal Law - NEPA. Issuance of a Section lO(a) Permit to Carlsbad by USFWS is an action subject to the National Environmental Policy Act ("NEPA"). USFWS is a lead agency under NEPA. An Environmental Assessment has been prepared pursuant to NEPA, the HMP has been evaluated pursuant to NEPA as a Subarea Plan under the MHCP Subregional Plan Final EMIS (March. 2003) and an Addendum to the EWEIS was prepared for final revisions to the HMP. 182.2 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 CEOA as a Subarea Plan under the MHCP Subregional Plan Final EIR/EIS (March 2003). CDFG is a responsible agency for purposes of approving the HMP under CESA and the NCCP Act. 198.0 ISSUANCE OF THE PERMIT 198.1 Findings - USFWS. Following opportunity for and consideration of public comments received regarding the HMP, the USFWS has found that: A. Incidental Take. Any peqitted taking of the HMP Covered Species pursuant to the HMP and the Section lO(a) Permit will be incidental to the carrying out of otherwise lawful activities. B. Minimize and Mitigate. The HMP and this Agreement will, to the maximum extent practicable, minimize and mitigate the impacts of such incidental taking. C. Adeauate Funding. The 'hnding sources identified and provided for herein will ensure that adequate funding for the HMP will be provided. D. No JeoDardv. Any permitted taking of HMP Covered Species pursuant to the HMP will not appreciably reduce the likelihood of the survival and recovery of the HMP Covered Species in the wild. E. Other Measures. Other measures set forth in the HMP and required by the USFWS as being necessary and appropriate for the purposes of the HMP (including those measures described in Section G of the HMP to respond to Changed Circumstances and measures determined by the Parties to be necessary to deal with Unforeseen Circumstances) will be fulfilled. 198.2 Issuance of Take Authorization - USFWS. USFWS has issued such findings in support of the granting of the Section lO(a) Permit authorizing the incidental take of the HMP Covered Species. Such Section lO(a) Permit shall be issued on the Effective Date, and this Agreement shall become effective and binding on the Parties on the date the Section 10(a) Permit is issued. 26 198.3 Findings - CDFG. The CDFG has found, following opportunity for public comment, that the HMP and this Agreement (1) adequately provide for the conservation and management of the HMP Covered Species and their habitat within the HMP Area, (2) satisfy all legal requirements under both CESA and the NCCP Act necessary for the CDFG to issue a CESA 2081 Permit and CESNNCCP Authorization for the HMP Covered Species, and (3) are consistent with the NCCP Process and Conservation Guidelines. The CDFG has found that the HMP meets the requirements of the NCCP Act for an NCCP Plan, and has approved the HMP as an NCCP Plan. For CEQA purposes, the CDFG has found fiuther that the HMP and this Agreement provide adequately for the mitigation of potential "significant effects on the environment" (as defined in California Public Resources Code 0 21068) which may result to HMP Covered Species and their habitat fiom the land development activities in the HMP Area. 198.4 Issuance of Take Authorizations - CDFG. Concurrent with the Effective Date, the CDFG will issue its approval of the HMP and CESA 2081 Permit and CESA/NCCP Authorization which authorizes the Incidental Take of HMP Covered Species in the HMP Area, subject to the terms of the HMP and this Agreement. 198.5 Findings -Section 4(d) Special Rule. The USFWS has found that the HMP meets the standards set forth in 50 C.F .R. 0 17 .32(b)(2) and is consistent with and satisfies the conditions under the Section 4(d) Special Rule, and therefore the Incidental Take of the coastal California gnatcatcher within the HMP Area is lawfhl except as otherwise provided in this Agreement. BB.0 REMEDIES AND ENFORCEMENT 20u. 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 Liability. 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. 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 27 B. Iniunctive and Temporaw 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. 240.0 PERMIT REMEDIES 249.1- A. The CESA/NCCP Authorization. 1. Suspension. a. Authorization Suspension. In the event of any material violation of the CESA/NCCP Authorizations or material breach of this Agreement by Carlsbad the CDFG may suspend the CESNNCCP Authorizations whole or in part; provided, however, that it may not suspend the CESANCCP Authorization 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 Authorization. In the event the CDFG suspends the CESNNCCP Authorization 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 CESA and/or NCCP Act, regulations issues hereunder, the conservation needs of the Covered Species, the terms of the CESA/NCCP Authorization 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 CESA/NCCP Authorization. It is the intent of the Parties that in the event of any suspension of the CESNNCCP Authorization all parties shall act expeditiously and cooperatively to reinstate the CESNNCCP Authorization. 2. Authorization Revocation or Termination. a. The CDFG may only revoke or terminate the CESNNCCP Authorization for a partial violation of the CESNNCCP Authorization or material breach of this Agreement by the 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 jeopardizing the continued existence of an HMP Covered species and to fulfill a legal obligation of the CDFG under the CESA and/or NCCP Act. 28 b. The CDFG agrees that it will not revoke or terminate the CESA/NCCP Authorization 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 CESA, the NCCP Act, the CESAMCCP Authorization and this Agreement. B. Section lO(a) Permit. 1. Suspension a. USFWS may suspend or revoke the Section 1O(a) Permit for cause in accordance with the laws and regulations in force at the time of such suspension or revocation. Such suspension or revocation may apply to the entire permit, or only to specified HMP Covered Species, covered lands or covered activities. In the event of suspension or revocation, Carlsbad's obligations under this agreement and the HMP will continue until the USFWS determines that all take of HMP 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 Species, it will not suspend the Section 1O(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 lO(a) Permit or this Agreement. b. Reinstatement Following Suspension. In the event the Section lO(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 lO(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 lO(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 1O(a) Permit all Parties shall act expeditiously to cooperate to resolve the suspension. 2. 10(a) Revocation. Consistent with 50 C.F.R. sections 13.27-13.29, 17.22(b)(8) and 17.32(b)(8), the USFWS will revoke the Section lO(a) permit, in whole or in 29 part, only (a) for a violation of the Section 10(a) permit by Carlsbad where Carlsbad fails to cure the violation after receiving actual notice of it from USFWS and a reasonable opportunity (but not less than sixty (60) days) to cure it, or the USFWS determines in writing that such violation cannot be effectively redressed by other remedies or enforcement action; or (b) where revocation of the permit, in whole or in part, is necessary to avoid the likelihood of jeopardy to an HMP 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 species will be treated as though they were listed species in determining the amount of take and the mitigation required. 221.0 TERMINATION 221.1 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 Authorizations in fill 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. 221.2 Carlsbad’s withdrawal from this Agreement will result in termination of the Take Authorizations as to all projects or activities not yet approved by Carlsbad and not yet mitigated for at the time of withdrawal. 221.3 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. 221.4 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 Authorizations provided Carlsbad continues to carry out its obligations under this Agreement with respect to such Take as provided in Section 24Q.B.3 and this Section 221 of this Agreement. 221.5 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 30 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. 232.0 PLAN AMENDMENTS 232.1 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 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 Authorizations 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 boundaries 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, the City will meet the agencies to resolve the issue; and written approval of the resulting change will be required; 232.2 Major Amendments. The Take Authorizations may be amended in accordance with all legal requirements, including but not limited to ESA, CESA, NEPA and CEQA, and the USFWS and CDFGs 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. Once the subregional MHCP is completed andor as additional biological analysis and information becomes available, additions to the HMP Covered Species list contained in Table 2 of the HMP 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(D) of the HMP. 31 232.3 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. 232.4 City Projects. Certain Carlsbad projects are covered by Proposed Hardlines, and are automatically permitted under the Take Authorizations 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. 241.0 FORCE MAJEURE 243.1 In the event that Carlsbad is wholly or partially prevented from performing obligations under this Agreement because of unforeseeable causes beyond the reasonable control of and without the fault or negligence of Carlsbad ("force majeure"), including but not limited to acts of God, labor disputes, sudden actions of the elements, actions of federal or state agencies or other local jurisdictions, Carlsbad shall be excused from whatever performance is affected by such unforeseeable causes to the extent so affected, and such failure to perform shall not be considered a material violation or breach, provided that nothing in this Section shall be deemed to authorize any Party to violate ESA or CESA or to excuse the performance by Carlsbad of any obligation necessary to avoid the likelihood of jeopardy to an HMP Covered Species, and provided hrther that: A. The suspension of performance is of no greater scope and no longer duration than is required by the force majeure; B. Within two weeks after the occurrence of the force majeure Carlsbad gives the USFWS and CDFG written notice describing the particulars of the occurrence; C. Carlsbad uses its best efforts to remedy its inability to perform (however, this paragraph shall not require the settlement of any strike, walk-out, lock-out or other labor dispute on terms which in the sole judgment of Carlsbad are contrary to its interest); and D. When Carlsbad is able to resume performance of its obligations, Carlsbad shall give USFWS and CDFG written notice to that effect. 243.2 Changed Circumstances Not Subject to Force Majeure Section. Events or causes identified as Changed Circumstances in the HMP are not considered unforeseeable events or Acts of God within the meaning of this Section 203 and Carlsbad shall be responsible for implementing the responses to Changed Circumstances provided for in the HMP in accordance with Section 44 11 of this Agreement. 32 254.0 MISCELLANEOUS PROVISIONS. 254.1 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. 254.2 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 CDFGs 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. 254.3 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: CDFG: USFWS: 2H.4 Entire Ameement. This Agreement, together with the HMP and the Take Authorizations, 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. 254.5 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. 254.6 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 hnds. 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 hnds 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 33 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 fbnds unless and until an authorized officer of that agency affirmatively acts to commit to such expenditures as evidenced in writing. 254.7 Duplicate 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. 254.8 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 CESA, 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 CESA 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 Cali fomia. 254.9 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. 254.10 Audicable 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. 254.1 1 No Third Partv Beneficiaries. Without limiting the applicability of rights granted to the public pursuant to the ESA, CESA 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 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. ' 34 IN WITNESS WHEREOF, THE PARTIES have executed this Implementing Agreement to be in effect as of the Effective Date. Date: ,20083. CARLSBAD Date: ,20003. Date: ,20083. 35 BY City Manager California Department of Fish and Game BY Title: CalifomialNevada Operations Office United States Fish and Wildlife Service BY Deputy Manager 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO. 2o03-157 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING AN ADDENDUM TO THE FINAL ENVIRONMENTAL IMPACT REPORT FOR THE NORTH COUNTY MULTIPLE HABITAT CONSERVATION PLAN (MHCP) TO ADDRESS AMENDMENTS TO THE CARLSBAD HABITAT MANAGEMENT PLAN AND ASSOCIATED DOCUMENTS. CASE NAME: CARLSBAD HABITAT MANAGEMENT PLAN WHEREAS, on September 21, 1999, the City Council of the City of Carlsbad, California adopted a Mitigated Negative Declaration for the 1999 draft Habitat Management Plan; and WHEREAS on June 7, 2000, the Planning Commission certified a Final Environmental Impact Report (EIR 97-01) for the Carlsbad Municipal Golf Course and on January 22, 2003, the Planning Commission approved an Addendum to EIR 97-01 to address revisions to the Golf Course design required by the California Coastal Commission; and WHEREAS, on February 4, 2003, the City Council adopted a Negative Declaration for a Local Coastal Program Amendment (LCPA 02-1 0) and the corresponding Second Addendum to the Habitat Management Plan (HMP Addendum #2); and WHEREAS, on March 28, 2003, the SANDAG Board of Directors certified a Final Environmental Impact Report for the North County Multiple Habitat Conservation Plan (MHCP) addressing the environmental impacts of the Carlsbad HMP, which was included as a "subarea plan" in the MHCP, including impacts to housing needs ; and WHEREAS, certain amendments to the LCPA 02-1 0 and the HMP Addendum #2 are now proposed in order to comply with modifications required by the California Coastal Commission; and WHEREAS, the Implementing Agreement for final approval of the HMP has been revised for administration of the HMP as amended with the required modifications; and WHEREAS, the Planning Director has reviewed the modifications being required by the Coastal Commission and has prepared an Addendum to the Final Environmental Impact Report for the MHCP, since there is substantial evidence in light of the whole record that the J> 7 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 modifications will not involve new significant environmental effects or a substantial increase in the severity of previously identified effects; and WHEREAS, on the 17th day of June, 2003, the City Council reviewed the Addendum to the EIR and found it to adequately address the modifications. NOW, THEREFORE BE IT HEREBY RESOLVED by the City Council of the City of Carlsbad, California as follows: 1. That the above recitations are true and correct. 2. That all previous environmental documents prepared for the Carlsbad Habitat Management Plan as stated in the recitals are hereby incorporated by reference. 3. That the Addendum to the Final Environmental Impact Report for the North County Multiple Habitat Conservation Plan as contained in Attachment “D” is hereby approved, based on the following findings: Findinqs: 1 The Addendum has been prepared in accordance with the California Environmental Quality Act, the State EIR Guidelines, and the Environmental Review Procedures of the City of Carlsbad and reflects the independent judgment of the City Council. 2. The Final Environmental Impact Report for the North County MHCP adequately addressed all known environmental effects associated with the HMP. 3. Approval of an Addendum to the MHCP Final EIR is appropriate and in conformance with CEQA in this case because some changes or additions to the HMP are necessary, but none of the conditions described in Section 15162 of CEQA calling for preparation of a subsequent EIR have occurred, in that: A. There are no significant new environmental effects and no substantial increase in the severity of a previously identified significant effect. The amendment to the HMP would result in greater protection of coastal habitat resources and would reduce the severity of previously identified impacts. The revisions to the Implementation Agreement would administer the HMP as amended. B. There has been no substantial change with respect to the circumstances under which the project is being undertaken involving new significant environmental effects or a substantial increase in the severity of previously identified significant effects. C. There is no new information of substantial importance that was not known at the time of preparation and could not have exercise of reasonable diligence showing one or more significant effects not considered in the MHCP EIR, or that significant effects examined in the document will be substantially more severe at the time of preparation of the Final EIR for the MHCP. Resolution No. 2003-157 -2- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. The mitigation measures are not considerably different from those analyzed in the MHCP EIR and there are no mitigation measures previously found not to be feasible that are now found to be feasible which would substantially reduce one or more significant effects of the project. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad on the 17th day of June, 2003, by the following vote, to wit: AYES: Council Members Lewis, Finnila, Kulchin, Hall, Packard NOES: None ABSENT: None fl ATTEST: (SEAL) Resolution No. 2003-157 3-9 -3 - Attachment “D” ADDENDUM TO MHCP FINAL EIR On March 28, 2003, the SANDAG Board of Directors certified a Final Environmental Impact Report for the North County Multiple Habitat Conservation Plan (MHCP). The Carlsbad Habitat Management Plan (HMP) was included in the MHCP as a “subarea” plan and the environmental impacts and mitigating measures associated with the HMP as a subarea plan were addressed in the EIR. Previous environmental documents prepared and certified for the HMP include a Mitigated Negative Declaration for the 1999 Draft HMP, a Negative Declaration for Addendum #2 to the HMP and an EIR and subsequent Addendum for the Carlsbad Municipal Golf Course which is a key component in the hardline preserve boundaries of the HMP and habitat mitigation in the MHCP “Core” gnatcatcher area southeast of the City of Carlsbad. Because the MHCP Final EIR was the most recently approved environmental document relating to the HMP, this Addendum to the MHCP EIR has been prepared. On June 12, 2003, the California Coastal Commission approved the City’s request for a Local Coastal Program Amendment to incorporate habitat conservation standards from the HMP to properties located in the city’s coastal zone. These standards were included in a second addendum to the HMP (HMP Addendum #2). The Coastal Commission’s approval was conditioned on several modifications. HMP Addendum #2 has been amended to include the Coastal Commission’s modifications and is the primary purpose for this EIR Addendum. In addition, the city has updated the 1999 Implementing Agreement (IA) with technical language revisions. The Coastal Commission modifications include adding new wording to clarify applicable conservation standards and to recognize that a number of properties have changed from standards areas to having hardline preserve boundaries mapped on the properties which occurred during the time the HMP was being reviewed by the Commission. As such, none of the modifications will create new environmental effects or reduce any of the mitigation measures from what was addressed as part of the MHCP Final EIR. No changes in circumstances have occurred since the EIR was certified. The new hardline-mapped properties comply with the original standards of the HMP or additional conservation standards as required by Coastal Commission modifications. JUN-17-2003 TUE 02 : 41 PM CITY OF CARLSBAD FAX NO, 760 602 8559 P, 02 JUNE 17,2003 TO: CITY COUNCIL FROM: Planning Director REVISION TO LCPA 02-1 0 0 COASTAL COMMISSION SUGGESTED MODIFICATIONS - A6 17,206, JUNE 17,2003, RESOLUTION NO. 2003-1 54 We have previously provided you with a memo dated June 13, 2003, which is an addendum to Agenda Bill No. 17,206 incorporating the Coastal Commission’s suggested modifications to LCP Amendment 02-10. We also provided a copy of the June 13 memo to Coastal Commission staff for their review. They have requested a revision to the wording that was contained in the June 13 memo regarding invasive plants (see attached email). Shown below is the proposed wording with deletions in strikethrough format and additions underlined. “The use of invasive w~t-native plant species in the landscaping for developments along-- abitat,-presewe -, such as those identified in Table 12 of the HMP, shall be prohibited ,” Staff finds that this change is acceptable and should be substituted for the wording previously included in the June 13 memo. The new wording would be applied to the Mello I, Mello II, and Agua Hedionda Land Use Plans. MlCHAEL J. HOLZMILLER Attachment JUN-17-2003 TUE 02:41 PI CITY OF CARLSBAD FAX NO, 760 602 8559 P, 03 ---___- .... .---- . ,^"-.--- ,. --- -...... --.- _-.. . -_ _.-.._ L -..... I ..... .- -.. -" -..-- Page I 1 En Rideout - revised invasive plants language , ,, , . . ...... ... L _--._.I _.._._.I. ., ..........._ *. ~ ....... -----..-.-..&-A- ? P From: Keri Akers <kakersbcoastal.ca.gov> To: "'Michael Holzmiller' (E-mail)" <MholzQcl.carlsbad.ca.us> Date: 611 7/03 10:16AM Subject: revised invasive plants language Michael and Don, As discussed in our phone conversation thls mornlng, the following revised language is acceptable for modification A.2. on your addendum dated June 13, 2003: "The use of invasive plant species in the landscaping for developments, such as those identified in Table 12 of the HMP, shall be prohibited." Please call or email me if you have any questions. - Kori Keri L. Akers, AlCP Coastal Program Analyst Habitat Conservation Program - South Region California Coastal Commission San Diego Coast District 7575 Metropolitan Dr., Suite 103 San Diego, CA 92108 tel (61 9) 767-2388 fax (61 9) 767-2384 cc: "Don Rideout (E-mail)" <Dride@ci.carlsbad.ca.us> CARLSBAD HABITAT MANAGEMENT PLANLocal Coastal Program Amendment Coastal Commission Action•LCPA received unanimous approval from Coastal Commission on June 12, 2003•Model for integration of Coastal Act, NCCP and ESA Requested Council Actions•Accept suggested modifications from Coastal Commission•Approve amendments to HMP Addendum #2•Approve revisions to implementing agreement•Approve addendum to EIR for MHCP Remaining Steps for Final HMP Approval•Certification of Council acceptance of suggested modifications•Coastal Commission hearing on golf course appeal•Final approval from CA Dept. of Fish & Game•Final approval from US Fish & Wildlife Service–Responses to comments•Signing of implementing agreement and issuance of permits