HomeMy WebLinkAboutCT 00-22; REDEEMER BY THE SEA LUTHERAN; ORDER NO. R9-2002-0014; 2002-02-14Califorma Regional Water Quality Control Board
Vug/ San Diego Regioii
Winston H. Hickox
Secretaryfor
Emimnmental
Protection
Intemet Address: http://www.svwcb.ca.gov/~rwqcb9/
9174 SIcy Paik Court. Suite 100, San Diego, Califonua 92123
Phone (858) 467-2952 • FAX (858) 571 -6972
Gray Davis
Govemor
February 14,2002
Mr. Brian Milich
McMillin Compames
2727 Hoover Ave.
National City, CA 91950
IQ Reply Refer to:
401: OOC-135
SLB
Mr. David Hauser
CityofCarlsbad
1635 Faraday Avenue
Carlsbad, C A 92008-7314
Dear Mr. Milich and Mr. Hauser
RE: ORDER NO. R9-2002-0014, WASTE DISCHARGE REQUIREMENTS AND
SECTION 401 WATER QUALITY CERTIFICATION FOR CALAVERA HILLS II,
LLC AND CITY OF CARLSBAD, CALAVERA HILLS MASTER PLAN PHASE H,
BRIDGE AND THOROUGHFARE DISTRICT NO. 4, AND DETENTION BASINS
Enclosed please find a copy of Order No. R9-2002-0014, which the Regional Board adopted at
their regularly scheduled February 13,2002 meeting.
If you have any questions regarding the above, please contact Ms. Stacey Baczkowski at
(858)637-5594.
Respectfully,
)HNH. ROBERTUS
'Executive Officer
Enclosure: Order No. R9-2002-0014
\
CaUfomia Environmental Protection. Agency
Mr. Milich and Mr. Hauser - 2 - February 14,2002
DISTRIBUTION
Ms. Shannon Bryant
U.S. Army Corps of Engineers
San Diego Field Office
16885 West Bemardo Drive, Suite 300A
San Diego, CA 92127
Ms. Tamara Spear
Califomia Department of Rsh and Game
South Coast Region
4949 Viewridge Avenue
San Diego, CA 92123
Mr. John Martin
U.S. Fish and Wildlife Service
2730 Loker Avenue West
Carlsbad, CA 92008
CaUfomia Environmental Protection Agency
Recycled Paper
CALHTORNIA REGIONAL WATER QUALITY CONTROL BOARD
SANDIEGO REGION
ERRATA SHEET NO. 1
FOR
ORDER NO. R9-2002-0014
WASTE DISCHARGE REQUIREMENTS AND
SECTION 401 WATER QUALITY CERTIFICATION
FOR
CALAVERA HILLS II, LLC AND CITY OF CARLSBAD
CALAVERA HILLS MASTER PLAN PHASE H & BRIDGE AND
THOROUGHFARE DISTRICT NO. 4 & DETENTION BASINS
SANDIEGO COUNTY
The following changes were made at the request of the applicants. Deletions are indicated by
strike-outs and additions are indicated by underlines.
Finding No. 1
MrAlillin CnmpaniGr.Calavera Hills. LLC and the City of Carlsbad (hereinafter discharger)
submitted an application for 401 Water Quality Certification on December 4,2000, and an
Application/Report of Waste Discharge on September 12,2001. The discharger proposes to
construct 781 residential units and associated infrastracture, extend College Boulevard and
Cannon Road, and construct two detention basins within the City of Carlsbad, Califomia.
Finding No. 3
To mitigate for the permanent and temporary fill of 3.77 acres of waters of the United States and
State, the discharger wiU create a total of 44T610J acres of southem willow scrub adjacent to
Calavera and Littie Encinas Creeks.
Finding No. 4
The proposed Habitat Restoration and Monitoring Plan (RECON; Octobor 26,2001January 10,
2002) will adequately compensate for impacts to waters of the U.S. and State associated with the
discharge of fill material.
rr IS HEREBY ORDERED that McMillin CompaniocCalavera Hills. LLC and the City of |
Carlsbad (hereinafter, discharger), in order to meet the provisions contained in Division 7 of the
Califomia Water Code and regulations adopted thereunder, shall comply with the following:
Errata Sheet No. 1 for Order R9-2002-0014
Provision Bl
The discharger shall develop a Final Mitigation and Monitoring Plan for Regional Board
approval, that shall be consistent with the Habitat Restoration and Monitoring Plan (RECON;
Oninbor 26.2001Januarv 10.2002). and shall achieve the following performance standards:
Provision B2
a. Proposed channel designs and earthwork for all mitigation areas, including appropriate cross
sections and plan views;
b. A detailed planting plan, including species lists, plant sizes and numbers, and planting
designs;
c. An irrigation plan;
d. Specific details and plans for all creek sections that will be culverted, bridged, or otherwise
crossed or immediately adjoined by paths, stiiictures, or similar improvements;
e. Signage and barrier designs (as shown in Attachment 1) adequato to prevent intrusion by
golforo, golf carts, and other human intrusion into all creeks and oreek buffer zones;
f. Specific details regarding hydrologic and biogeochemical monitoring, including sample
locations, periodicity, and qualitative and quantitative indicators; and
g. All other information, as appropriate.
Provision B9
The discharger shall provide certification that personnel have been trained on the provisions and
prohibitions of this order as well as the management responsibilities detailed in the Habitat
Restoration and Monitoring Plan (RECON; Octobor 26. 2001Januarv 10.2002).
Provision C8
The maintained portions of dBetention basins BJ and BJB shall not be counted towards
mitigation ciedit for impacts to waters of the U.S. and State, and shall be maintained in
accoidance with the conditions specified in Attachment 1, or in a manner that provides
equivalent protection.
Attachment 1
The following headings were added to tiie table (from left to right): Village or Road Segment;
Post Constinction BMP; BMP Maintenance; Maintenance Responsibility; Anticipated Pollutants:
and Anticipated BMP Efficiency.
The third colunm on Attachment 1 on the Basin BJB row (last page of tiie table) was changed to
".. .and outiet as needed downsti:eam of outiet pipe from CoUege Boulevard."
The last row refers to Basin BJB and was changed to identify Basin BJ.
CALIFORNLi REGIONAL WATER QUALITY CONTROL BOARD
SAN DIEGO REGION
ORDER NO. R9-2002-0014
WASTE DISCHARGE REQUIREMENTS AND
SECTION 401 WATER QUALITY CERTIFICATION
FOR
CALAVERA HILLS H, LLC AND CITY OF CARLSBAD
CALAVERA HILLS MASTER FLAN PHASE H & BRIDGE AND
THOROUGHFARE DISTRICT NO. 4 & DETENTION BASINS
SANDIEGO COUNTY
The Califomia Regional Water Quality Conti-ol Board, San Diego Region (hereinafter Regional
Board) finds that:
1. McMillin Companies and the City of Carlsbad (hereinafter discharger) submitted an
application for 401 Water Quality Certification on December 4,2000, and an
Application/Report of Waste Discharge on September 12,2001. The discharger proposes to
construct 781 residential units and associated infrastructure, extend College Boulevard and
Cannon Road, and constract two detention basins witiiin the City of Carlsbad, Califomia.
2. The project will result in the discharge of waste, defined as the placement of fill material
(e.g., soil, riprap, culverts), into 3.7 acres of waters of the United States, and an additional
0.07 acre of waters of the State, including Calavera Creek, Agua Hedionda Creek, Litfle
Encinas Creek, and unnamed vegetated and unvegetated waters of the U.S. The project's
diiect impacts (in acres) are as follows:
Master Plan
Development Caimon Road College Boidevard
Habitat Type* Perm. Temp. Perm. Temp. Perm. Temp. Total
Alkali Marsh 0.1 0.6 0.07 0.77
Riparian Scrub 0.2 0.03 0.3 0.02 0J5
(fflfe or sws) 2.17 Sycamore Woodland 0.6 0.12 1.3 0.15 2.17
Unvegetated waters 0.2 0.01 0.21
Total 0.3 0.01 1.4 022 1.6 0.17 3.7
* mfs = mule fat scrub; sws = southem willow scrub
To mitigate for the pennanent fill of 3.77 acres of waters of the United States and State, the
discharger will create a total of 11.6 acres of southem willow scrab adjacent to Calavera and
Order R9-2002-0014
Littie Encinas Creeks.
4. The proposed Habitat Restoration and Monitoring Plan (RECON; October 26,2001) will
adequately compensate for impacts to waters ofthe U.S. and State associated with the
discharge of fill material.
5. The project may indirectiy impact beneficial uses of waters of the U.S. and State through the
discharge of urban runoff pollutants (e.g., oil and grease, heavy metals, pathogens, nutrients,
etc.) ft^om the proposed development.
6. The discharger has developed a Summary Storm Water Pollution Prevention Plan (O'Day
Consultants; August 2001) that identifies constraction and post-constraction Best
Management Practices (BMPs). Post-constraction BMPs identified in the plan include:
a. Creation of detention basins that will be used during constraction and will remain in
place as post-constraction BMPs to receive urban ranoff;
b. Grass-lined swales around individual house pads;
c. Routine street sweeping by the City of Carlsbad;
d. Storm drain inlet filters; and
e. Constraction of pollution basins (e.g., treatment wetiand).
More specific BMPs are provided in Attachment 1 to this Order.
7. This Order specifies Waste Discharge Requirements (WDRs) that are necessary to adequately
address impacts to water quality standards resulting from the filling of waters of tiie U.S., to
meet the objectives of the State Wetiands Conservation Policy (Executive Order W-59-93),
and to accommodate and require impropriate changes over implementation of the project and
its constraction.
8. The Comprehensive Water Quality Control Plan for tiie San Diego Basin (9) (Basin Plan)
was adopted by the Regional Board on March 17,1975. Subsequent revisions to the Basin
Plan have also been adopted by this Regional Board and approved by the State Board. The
Basin Plan designates beneficial uses, narrative and numerical water quality objectives, and
prohibitions which are applicable to the discharges regulated under this Order. The project,
as described in this Order, will not result in State Water Quality Standards being exceeded.
9. The discharger has avoided and minimized impacts to waters of the U.S. consistent with the
requirements of the Basin Plan.
10. The City of Carlsbad prepared an Environmental Impact Report (EIR) pursuant to the
Califomia Environmental Quality Act and was certified on January 15,2(X)2. The EIR
identified the following mitigation measures to reduce project impacts to water quality below
a level of significance:
Order R9-2002-0014
a. Comply with State Water Resources Control Board Water Quality Order No. 99-08-
DWQ, the NPDES General Permit for Storm Water Discharges Associated with
Constraction Activity;
b. Comply witii the Municipal Storm Water Pennit (NPDES No. CAS0108758);
c. Comply with the City of Carlsbad procedures;
d. Create desiltation basins where necessaiy to minimize erosion and prevent sediment
transport, until the storm drain system is in place and streets are paved;
e. Landscape all exposed, manufactured slopes per City of Carlsbad erosion control
standards; and
f. Phase grading operations and slope landscaping to reduce the susceptibility of slopes
to erosion; and control sediment production from graded building pads with low
perimeter berms, desiltation basins, jute matting, sandbags, bladed ditches, or other
appropriate methods.
11. The Board has notified tiie U.S. Army Corps of Engineers, U.S. Hsh and Wildlife Service,
Califomia Department of Fish and Game, and interested agencies and persons of its intent to
prescribe WDRs and Section 401 Water Quality Certification for this discharge.
12. The Board, in a public meeting, heard and considered all comments pertaining to the
discharge.
n IS HEREBY ORDERED tiiat McMillin Companies and the City of Carlsbad (hereinafter,
discharger), in order to meet the provisions contained in Division 7 of the Califomia Water Code
and regulations adopted thereunder, shall comply with the following:
A. PROHIBITIONS
1. The discharge of fill material in a manner other than as described in the findings of this Order
is prohibited unless the discharger obtains revised waste discharge requirements that provide
for the proposed change.
2. The discharge of fill material and other waste shall not create a pollution, contanunation or
nuisance, as defined by Section 13050 of the California Water Code
B MITIGATION PROVISIONS
1. The discharger shall develop a Final Mitigation and Monitoring Plan for Regional Board
approval, tiiat shall be consistent with the Habitat Restoration and Monitoring Plan
(RECON; October 26,2001), and shall achieve the following performance standanls:
a. The created and restored areas must posses the three criteria (wetiand hydrology,
hydrophytic vegetation, and hydric soils) necessaiy to be delineated as a Corps
jurisdictional area;
b. All sites must exhibit signs or evidence of wildlife use for two consecutive
monitoring periods;
Order R9-2002-0014
c. All sites must be self-sustaining; and
d. All sites must exhibit evidence of natural recruitment of native wetiand and/or
riparian species.
2. The Final Habitat Restoration and Monitoring Plan shall include, but not be limited to, tiie
following:
a. Proposed channel designs and earthwork for all mitigation areas, including
appropriate cross sections and plan views;
b. A detailed planting plan, including species lists, plant sizes and numbers, and planting
designs;
c. An iirigation plan;
d. Specific details and plans for all creek sections that will be culverted, bridged, or
otiierwise crossed or immediately adjoined by paths, stractures, or similar
improvements;
e. Signage and barrier designs (as shown in Attachment 1) adequate to prevent intrasion
by golfers, golf carts, and other human intrusion into all creeks and creek buffer
zones;
f. Specific details regarding hydrologic and biogeochemical monitoring, including
sample locations, paiodicity, and qualitative and quantitative indicators; and
g. All otiier infonnation, as appropriate.
3. Implementation of mitigation shall provide the following functional gains:
a. Habitat function - Creation of stracturaUy and spatially diverse habitat surrounding
riparian areas will provide nesting and foraging groimds for birds, amphibians, and
other wildlife.
b. Biogeochemical/water quality functions - Expansion of wetiand areas shall increase
areas for natural water quality functions, such as microbial action that removes toxins,
nitrogen, and other nutrients from ranoff.
c. Hydrologic functions - Expansion of wetland areas will allow greater flood flow
attenuation, energy dissipation, and storage during storm events.
4. Not later than 30 days prior to the beginning of grading, the discharger shall submit,
acceptable to the Regional Board, the Final Habitat Restoration and Monitoring Plan.
5. The discharger shall implement the Final Wetiand and Riparian Mitigation and Monitoring
Plan as approved by the Regional Board. The final plan shall be consistent with the draft
plan included as Attachment 2 to this Order.
6. Implementation of the Final Mitigation and Monitoring Plan shall be completed within the
same calendar year as impacts occur, or at least no later than 9 months following the close of
the calendar year in which impacts first occur (e.g., if impacts occur in June 2001,
constraction of mitigation for all impacts must be completed no later than September 2002).
Order R9-20Q2-00I4
7. No later than 30 days prior to tiie beginning of clearing, grabbing, and/or grading, tiie
discharger shall submit, acceptable to the Regional Board, the name(s) and qualification(s) of
the qualified biologist(s) (defined as possessing a college degree in the biological sciences
and at least 5 years restoration experience in southem Califomia) responsible for compliance
with the certification requirements, as discussed in the above provisions.
8. If mitigation areas do not meet their interim and/or ultimate success criteria, as defined in the
draft Habitat restoration and Monitoring Plan, the discharger shall prepare, acceptable to the
Regional Board, remedial measures to be implemented.
9. The discharger shall provide certification that personnel have been trained on the provisions
and prohibitions of this order as well as the management responsibilities detailed in the
Habitat Restoration and Monitoring Plan (RECON; October 26,2001).
10. Not later than 60 days following the completion of the installation of the mitigation areas, the
discharger shall submit, acceptable to the Regional Board, final conservation easements or
deed restrictions for all mitigation and preservation areas.
11. The discharger shall submit an as-built report within 60 days of installation of the proposed
mitigation.
C. SECTION 401 WATER QUALITY CERTIFICATION PROVISIONS
1. Standard conditions applicable to 401 Water (Quality Certification:
a. Every certification action is subject to modification or revocation upon administrative
or judicial review, including review and amendment pursuant to CWC §13330 and 23
CCR §3867.
b. Certification is not intended and shall not be constraed to apply to any activity
involving a hydroelectric facility and requiring a Federal Energy Regulatory
Commission (FERC) license or an amendment to a FERC license unless the pertinent
certification application was filed pursuant to 23 CCR §3855(b) and that application
specifically identified that a FERC license or amendment to a FERC license for a
hydroelectric facility was being sought.
c. Certification is conditioned upon total payment of any fee required pursuant to 23
CCR §3833 and owed by tiie discharger.
2. Any proposed change in constraction that may alter flow pattems and/or change the approved
impact footprint is prohibited without Regional Board approval. Not later than 30 days prior
to the beginning of any proposed change, the discharger shall submit, acceptable to the
Regional Board, detailed plans and specifications shovwng the proposed change in
relationship to the approved project.
Order R9-2002-0014
3. The discharger is prohibited from maintaining (e.g., mowing, praning, etc.) riparian
vegetation within Agua Hedionda Creek for the puiposes of increasing the hydrologic
capacity of the creek or to provide protection to the proposed bridge.
4. All waters of the United States and State that are to be preserved shall be fenced no less than
10 days prior to the start of any clearing and/or grading activities. A qualified biologist shaU
show all preservation areas to all constraction personnel and shall explain the conditions of
this Order and other permits regarding impacts.
5. The discharger shall staff a qualified biologist on site during project constmction to ensure
compliance with the certification requirements. The qualified biologist shall be onsite at least
once a week when grading and/or construction activities occur more than 100 feet from a
waters of the U.S. or State that is to be preserved. When grading and/or construction
activities occur within 100 feet of a waters of the U.S. or State that is to be preserved, the
biologist shall be onsite daily. The biologist shall be given the authority to stop all work
onsite if a violation occurs or has the potential to occur.
6. Not later than 30 days prior to the beginning of grading, the discharger shall submit,
acceptable to the Regional Board, a detailed Hnal Water Quality Plan. This plan shall
include, but not be limited to, identification of pollutants expected to be generated by the
proposed project identification of specific Best Management Practices, their treatment
efficiency with regards to expected pollutants, specific locations, specific maintenance
requirements, and maintenance responsibilities. Implementation of the Final Water Quality
Plan shall occur in conjunction with project initiation.
7. The discharger shall notify the Regional Board in writing at least 15 days prior to actual start
dates for each project component (e.g., clearing, grabbing, grading, installation of
mitigation).
8. Detention basins BJ and BJB shall not be counted towards mitigation credit for impacts to
waters of the U.S. and State, and shall be maintained in accordance with tiie conditions
specified in Attachment 1, or in a manner that provides equivalent protection.
D. STANDARD PROVISIONS
1. The discharger shall notify the Regional Board by telephone within 24 hours whenever an
adverse condition occurs as a result of this discharge. Such a condition includes, but is not
limited to, a violation of tiie conditions of this Order, a significant spill of petroleum products
or toxic chemicals, or damage to control facilities that would cause noncompliance. Pursuant
to CWC §13267(b), a written notification of the adverse condition shall be submitted to the
Board within one week of occurrence. The written notification shall identify the adverse
condition, describe the actions necessary to remedy the condition, and specify a timetable,
subject to the modifications of the Regional Board, for the remedial actions.
Order R9-2002-0014
2. The discharge of any hazardous, designated or non-hazardous waste as defined in Titie 23,
Division 3, Chapter 15 of the Califomia Administrative Code, shall be disposed of in
accordance with applicable state and federal regulations.
3. This Order is not transferable to any person except after notice to the Regional Board. In
accordance witii CWC §13260, the discharger shall file with the Board a report of any
material change or proposed change in the ownership, character, location, or quantity of tiiis
waste discharge. The notice must include a written agreement between the existing and new
discharger containing a specific date for the transfer of this Order's responsibility and
coverage between the current discharger and the new discharger. This agreement shall
include an acknowledgment that the existing discharger is liable for violations up to the
transfer date and that tiie new discharger is liable from the transfer date on. Any proposed
material change in operation shall be reported to the Regional.Board at least 30 days in
advance of the proposed implementation of any change. This shall include, but not be limited
to, all significant new soil disturbances, all proposed expansion of development, or any
change in drainage characteristics at the project site. For the purpose of this Order, this
includes any proposed change in the boundaries of the wetiand/waters of the United States
fill sites, liie Regional Board may require modification or revocation and reissuance of this
Order to change the name of the discharger and incorporate such other requirements as may
be necessary under the Califomia Water Code.
4. The discharger shall maintain a copy of this Order at the project site so as to be available at
all times to site operating personnel and agencies.
5. The discharger shall permit the Board or its authorized representative at all times, upon
presentation of credentials:
a. Entry onto project premises, including all areas on which wetiand fill or wetiand
mitigation is located or in which recoids are kept.
b. Access to copy any records required to be kept under the terms and conditions of this
Order.
c. hispection of any treatment equipment, monitoring equipment, or monitoring method
required by this Ordo-.
d. Sampling of any discharge or surface water covered by this Order.
6. This Order does not authorize commission of any act causing injury to the property of another
or of the public; does not convey any property rights; does not remove liability under federal,
state, or local laws, regulations or rales of other programs and agencies, nor does this Order
authorize the discharge of wastes without appropriate permits from other agencies or
organizations.
7. The Regional Board will consider recission of this Order upon notification of successful
completion of mitigation for all creation, and enhancement projects required or otherwise
permitted now or subsequentiy under this Order, completion of project construction, and the
Regional Board's acceptance of these notifications. Determination of mitigation success will
Order R9-2002-0014
be based on the provisions discussed above.
8. The discharger must comply with all conditions of this Order. Any noncompliance witii this
Order constitutes a violation of tiie Califomia Water Code and is grounds for (a) enforcement
action; (b) tenmnation, revocation and reissuance, or modification of this Order; or (c) denial
of a report of waste discharge in application for new or revised waste discharge requirements.
9. The discharger shall report any noncompliance which may endanger health or the
environment. Any such infonnation shall be provided orally to the Regional Board vwtiiin 24
hours firom the time the discharger becomes aware of the circumstances. A written
submission shall also be provided within five days of the time the discharger becomes aware
ofthe circumstances. The written submission shaU contain a description ofthe
noncompliance and its cause; the period of noncompliance, including exact dates and times,
and if the noncompliance has not been conected; the anticipated time it is expected to
continue; and steps taken or planned to reduce, eliminate, and prevent recurrence of the
noncompliance. The Regional Board, or an autiiorized representative, may waive the written
report on a case-by-case basis if the oral report has been received within 24 houi^.
10. The discharger shall take all reasonable steps to minimize or correct any adverse impact on
the environment resulting ft^om noncompliance with tiiis Order, including such accelerated or
additional monitoring as may be necessary to determine the nature and impact of the
noncompliance.
11. In an enforcement action, it shall not be a defense for the discharger that it would have been
necessary to halt or reduce the permitted activity in order to maintain compliance with this
Order. Upon reduction, loss, or failure of the tijeatinent facility, the discharger shall, to the
extent necessary to maintain compliance witii this Order, control production or all discharges,
or both, until the facility is restored or an altemative method of treatment is provided. This
provision applies for example, when the primary source of power of the treatment facility is
failed, reduced, or lost.
12. This Older may be modified, revoked and reissued, or terminated for cause including, but not
limited to, the following:
a. Violation of any terms or conditions of this Order,
b. Obtaining this Order by misrepresentation or failure to disclose fuUy all relevant facts;
or
c. A change in any condition tiiat requires either a temporary or permanent reduction or
elimination of tiie authorized discharge.
13. The filing of a request by the discharger for the modification, revocation and reissuance, or
termination of this Order, or notification of planned changes or anticipated noncompliance
does not stay any condition of this Order.
Order R9-2002-0014
E. REPORTING AND RECORD KEEPING REQUIREMENTS
1. The discharger shall submit copies of all necessary approvals and/or permits for the project
and mitigation projects from applicable govemment agencies, including, but not limited to,
tiie CalifomiaDepartment of Fish and Game, U.S. Fish and Wildlife Service, and U.S. Array
Corps of Engineers, prior to the start of clearing/grading.
2. The discharger shall retain records of all monitoring information, including all calibration and
maintenance records, copies of all reports required by this Order, and records of all data used
to complete the application for this Order. Records shall be maintauied for a minimum of five
years from the date of the sample, measurement, report, or application. This period may be
extended during the course of any unresolved litigation regarding this discharge or when
requested by the Regional Board.
3. The discharger shall fumish to tiie Regional Board, within a reasonable time, any information
which the Regional Board may request to determine whetiier cause exists for modifying,
revoking and reissuing, or terminating this Order. The discharger shall also fumish to the
Regional Board, upon request, copies of records required to be kept by this Order.
4. Where the discharger becomes aware that it failed to submit any relevant facts in a Report of
Waste Discharge or submitted incorrect information in a Report of Waste Discharge or in any
report to the Regional Board, it shall promptiy submit such facts or infoimation.
5. All applications, reports, or information submitted to the Regional Board shall be signed and
certified as follows:
a. The Report of Waste Discharge shall be signed as follows:
i For a corporation - by a principal executive officer of at least the level of vice-
president.
ii For a partnership or sole proprietorship - by a general partner or the proprietor,
respectively.
iii For a municipality, state, federal or other public agency - by either a principal
executive officer or ranking elected official.
b. All other reports required by this Order and other information required by the
Regional Board shall be signed by a person designated in paragraph (a) of this
provision, or by a duly authorized representative of that person. An individual is a
duly autiiorized representative only if:
i The authorization is made in writing by a person described in paragraph (a) of this
provision; and
ii The authorization specifies either an individual or a position having responsibility
for the overall operation of the regulated facility or activity; and
iii The written authorization is submitted to the Regional Board.
c. Any person signing a document under this Section shall make the following
certification:
Order R9-2002-0014
"I certify under penalty of law that I have personally examined and am familiar
with the infomiation submitted in this document and all attachments and that,
based on my inquiry of those individuals immediately responsible for obtaining
the information, 1 believe that the information is trae, accurate, and complete. I
am aware that there are significant penalties for submitting false infonnation,
including the possibiUty of fine and imprisonment."
6. The discharger shall submit reports required under this Order, or other infonnation required
by the Regional Board, to:
Executive Officer
CaUfomia Regional Water (JuaUty Control Board
San Diego Region
9174 Sky Park Court, Suite 100
San Diego, CaUfomia 92123
F. NOTIFICATIONS
1. This Order does not convey any property rights of any sort or any exclusive privileges. The
requirements prescribed herein do not authorize the commission of any act causing injury to
persons or property, nor protect the discharger from UabiUty under federal, state or local laws,
nor create a vested right for the discharger to continue the waste discharge.
2. These requirements have not been officially reviewed by the United States Environmental
Protection Agency and are not issued pursuant to Section 402 of the Clean Water Act.
3. The provisions of this Order are severable, and if any provision of this Order, or the
appUcation of any provision of this Order to any circumstance, is held invalid, the appUcation
of such provision to other circumstances, and the remainder of this Order, shall not be
affected thereby.
4. The adoption of these waste discharge requirements constitutes certification of water quaUty
certification for the project as described in this Order pursuantto Section 401 of the Clean
Water Act
This Order becomes effective on the date of adoption by the Regional Board
/, John H. Robertus, Executive Officer, do hereby certify ttte foregoing is a fiill, true, and correct
copy ofan Order adopted by the Califomia Regional Water Quality Control Board, San Diego
Region, on February 13, 2002.
rOHNH. ROBERTUS
Executive Officer
10
CALIFORNLV REGIONAL WATER QUALITY CONTROL BOARD
SAN DIEGO REGION
MONITORING AND REPORTING PROGRAM NO.
R9-2002-0014
FOR
CALAVERA HILLS H, LLC AND CITY OF CARLSBAD
CALAVERA HILLS MASTER FLAN PHASE H & BRIDGE AND
THOROUGHFARE DISTRICT NO. 4 & DETENTION BASINS
SAN DIEGO COUNTY
1. Constraction monitoring reports shall be submitted quarterly during all grading activities
associated with the proposed project. Construction monitoring reports shall include, but
not be limited to the following:
a. Names, qualifications, and affiliations of the persons contributing to the report;
b. Summaiy of constraction activities that include general locations, project
component (e.g., school site, mitigation site), approximate acreage;
c. Quantification of impacts to waters of the U.S. authorized under this Order,
d. Dates, times, and names of qualified biologist(s) onsite;
e. Summary of any problems, resolution, and notification that occurred during this
monitoring period; and
f. Photodocumentation, if necessary, of constraction activities.
2. Mitigation monitoring shall occur, at a mimmum, quarterly during the first year following
instaUation of mitigation areas, semi-annuaUy during the second and third years, and
annually until mitigation has been determined to be successful (as defined in the
provisions of this Order, and mitigation success has been agreed to in writing by the
Regional Board and the U.S. Army Corps of Engineers. Monitoring shall begin
immediately after the completion of the first planting period.
3. Mitigation monitoring reports shaU be submitted quarterly during the first year following
instaUation, semi-annually during the second and third years, and annually until
mitigation has been deemed successful. Monitoring reports shall be submitted no later
than 30 days following the end of tiie monitoring period. Monitoring reports shall
include, but not be limited to, the foUowing;
a. Names, quaUfications, and affiUations of the persons contributing to the report;
b. Tables presenting the raw data collected in the field as well as analj^es of tiie
physical and biological data;
Order R9-2002-0014
c. Qualitative and quantitative comparisons of cunent mitigation conditions with
pre-construction conditions and previous mitigation monitoring results;
d. Photodocumentation from estabUshed reference points; and
e. Other items specified in the draft and final Wetiand and Riparian Mitigation and
Monitoring Plan.
Monitoring Reports shaU be submitted to:
Califomia Regional Water QuaUty Conttol Board
San Diego Region
9174 Sky Park Court, Suite 100
San Diego, Ca 92123
Ordered by:j
[ecutive Officer
tta.
United States Department of the Interior
HSH AND WILDLIFE SERVICE
Ecological Services
Carlsbad Field Office
2730'Lokcr Avenue West
Carfsfcad, California 92008
In Reply Refer To: FWS-SDG-1597.6
Colonel Richard G. Thompson
District Engineer
U.S. Army Corps of Engineers
Los Angeles District
P.O. Box 532711
Los Angeles, CA 90053-2325
Attn: Mr. Russ Kaiser
MAR 1 4 2002
Re: Response to Comments on Draft Biological Opinicm for the Calavera Hills Development
Project, Carlsbad, San Diego County, CaUfomia. (U.S. Fish and WildUfe Service File
No. FWS-SDG-1597.4; U.S. Army Corps of Engineers Hie No.200100215^KB)
Dear Colonel CarroU:
The U.S. Rsh and Wildlife Service (Service) issued a draft biological opinion to the U.S. Army
Corps of Engineers (Corps) on Febraaiy 14,2002 for the Calavera Ifills Phase n project in
Carlsbad, San Diego County, California. It is our understanding that the Corps shared the draft
biological opinion with the applicant because we received a letter fiom Brian Milich of McMillin
Land Developmait, on March 5,2002, commenting on the Febraary 14,2002, draft biological
opinion. During a phone conversation with Mr. Russ Kaiser from the Corps on March 5,2002,
he indicated that the Corps would consider the March 5,2002, letter from Mr. Milich to represent
all comments on the draft biological opinion. As a result, the Service revised the draft biological
opinion and a final biological opinion is enclosed with this letter. We have provided a summaiy
of how we responded in the final biological opinion to each of the items presented in Mr.
Milich's letter below.
1. "We recommend that the last sentence of Conservation Measure #3, on page 9, be revised
to eliminate the requirement of deposit of $1.5 million, and replace it with the foHowing
wording: '...funding for acquisition of an additional 51.3 acres of coastal sage scrab off-
site at a location acceptable to the Service and the City of Carlsbad will be provided
through deposit of $1,128,600 (equal to $22,000/acre), into the CaUfomia Gnatcatcher
Conservation Fund, and the establishment of an endowment fiind for maintenance and
management in an amount to be ascertained through a Property Analysis Report
[sic](PAR) by a qualified open space manager,'
Colonel Thompson (FWS-SDG-1597.6) 2
We have revised tiie language in the final biological opinion to reflect the suggested changes by
inserting the following language: "...If the acquisition of this land is not accomplished prior to
issuance of a mass grading permit by the City, funding for acquisition of an additional 51.3 acres
of coastal sage scrab off-site at a location acceptable to tiie Service and the City of Carisbad will
be provided through deposit of $1,128,600 and $394,650.00 into the Califomia Gnatcatcher
Conservation Fund (National Rsh and Wildlife Foundation Account No. 97-166). The
$1,128,600 is to be used for property acquisition and the and the $394,650.00 is to be used for
tiie creation of an endowment fund for maintenance and management of the acquired site (the
$394,650.00 dollar amount may be revised if a Property Analysis Report [sic](PAR) prepared by
a qualified open space manager detennines less money is needed for the endowment)."
2. The second sentence of Conservation Measure #4, on page 9 should be revised as
follows: The biological conservation easements will be granted to a pubUc or private
entity agreed to by the Service and with input from the CDFG to ensure that the
management of the biological resources is implemented.'
We have revised the language in the final biolo^cal opinion to that suggested.
3. "On pa^ 22, we recommend that the third paragraph summarizing gnatcatcher survey
data be revised to include a discussion of recentiy conducted surveys, which could be
accomplished as follows: 'Gnatcatcher surveys have been conducted several times over
the past ten years. Surveys conducted in 1992 and 1995 recorded observations of
gnatcatchers in open space north and south of Village H. And four observations within
Village K. During surveys conducted from November 2,1999 to Januaiy 2,2000, three
gnatcatcher territories were observed on-site and an additional territory was mapped
immediately off-site. Recent protocol surveys (5 total) for the gnatcateher have been
conducted on the CalavCTa Phase II area in Januaiy and late February 2002. During these
surveys a total of six pair of gnatcatehers were observed within the Phase n development
area and adjacent open space areas. The locations of these pairs were; one pair within
Village K open space, one pair on the southem edge of the development area of ViUage
K, one pair in tiie open space east of Village U, one pair within the VUla^ R open space,
and two pair within the development area of Villages W and X.'"
We have revised tiie language in the final biological opinion to that suggested and included the
following additional language: "On March 7,2002, Service personnel observed an additional
gnatcatcher on the southem end of the development area of ViUage U. Spatial relationship
between this observation and mapped survey observations suggest that this observation
represents an additional pair."
4. "On page 23, in the paragraph under the heading "Direct effects," there is a reference to a
gnatcatcher at tiie proposed intersection of College and El Camino Real. TTiis
observation (which apparentiy was of a single male) occurred during the November 1999
to January 2000 surveys. Since that time. College has been constracted from El Camino
Real to a point south of Agua Hedionda Creek in connection with development of a
residential and commercial development project in that area (the Terraces at Sunny
United States Department ofthe Interior
FISH AND WILDLIFE SERVICE
Ecological Services
Carisbad F/sh and WUdUfe Office
2730-^^er Avenue West
Carisbad, Califomia 92008
In Rq>ly Refer To: FWS-SDG-1597.7 ^ftftR 1 4 2002
Colond Richard G. Thompson
Distiict Engineer
U.S. Army Corps of Engineers
Los Angeles Distnct
P.O. Box 532711
Los Angeles, CA 90053-2325
Attn: Mr. Russ Kaiser
Re: Biological Opinion on the Calavera Hills Phase n Housing Developmeat Project, San
Diego County, CaUfonua (FWS Consultation No. 1-6-01-F-1597; Corps File No.
200100215-SKB)
Dear Colonel Thompson:
This document transmits tiie U. S. Fish and Wildlife Sovice's (Service) biological opinion based
on our review oftiie proposed Calavraa HiUs Phase II development project located in Carlsbad,
San Diego County, California, and its ^ects on the California gnatcatoh^ (Polioptila
califorrtica; gnatcatcher), its critical habitat, and tiie least BeU's vireo (Vireo belliipttsillus;
vireo) in accordance with section 7 of tiie Ridangered Species Act (Act) of 1973, as amoided
(16 U.S.C. 1531 et seq.). Critical habitat for tiie vireo has been designated. However, tbis
action does not occur vithin the area designated, tiira^efore, it wiU not be discussed fuithCT. Your
August 3.2001, request for formal consultation was received on August 7,2001, and we
initiated consultaticMi upon recdpt of your request
This biological opinion is based on infonnation provided in the August 21,2000, biological
assessment (Recon, No. 3226B), the Febraary 2001 draft Environmental Impact Report, an April
4, 2001, field investigation conducted by Service staff", and other infonnation available in our
fUes. A complete administrative record of this consultation is on fUe at this office.
CONSULTATION HISTORY
To facUitate compUance with enviromnental regulations, Ogden Environmental and Energy
Senrices prepared a Biological Technical Report addressing a proposed housing development on
tiie Calavera HiMs site, for Lyon Communities, Inc., in September, 1992. A Calavera Heights
California Gnatcatcher Mitigation Pres^ve Management Plan was prepared by Ogden, on March
9,1993. The Service met with representatives of Lyon Communities on April 18,1995, for an
Colonel Richard G. Thompson (FWS-SDG-1597.5) 3
revised project description. The Service continued tiie consultation unintermpted, but changed
the biological opinion in progress to reflect the revised project description.
On February 14,2002, the Seryice issued.a draft biological opinion to tiie Corps for tiie Calavera
Hills Phase II project. It is our understanding tiiat the Corps shared the draft biological opinion
with the applicant because we received a letter from Brian Milich of McMillin Land
Development, on March 5,2002, commenting on the Febraary 14,2002, draft biological opinion.
During a phone conversation witti Mr. Russ Kaiser from tiie Corps on March 5,2002, he
indicated that the Corps would consider the March 5,2002, letter from Mr. Milich to represent
all comments on the draft biological opinion. As a result, the Service revised the draft biological
opinion to address the coinments.
On March 4,2002, the Service was made aware that tiie applicant's contractor cleared native
vegetation from Febraaty 20,2002, to March 1,2002, during tiie gnateateher breeding season, in
order to erect a fence, intended to demarcate tiie boundary between lands that are to be preserved
as biological open space, and lands that are proposed for development to allow constraction
personnel to know where to work and where not to work. Installment of flie fence was nearly
finished when tfie City of Carlsbad learned tiiat native vegetation was being cleared during tiie
gnatcatchear breeding season and issued a stop-work order, halting the fence construction. On
March 7,2002, Service staff met witii tiie City of Carlsbad (Eric Munoz), McWBllin Land
Development (Brian Milich, Don Mitohell, and Skip Haman) and tiieir legal councU (Mark
McGuire) to examine the ar^ where vegetation had been removed for installation of tiie fence.
The entire project perimeter was cleared to an average approximate widtii of 82 inches. The
fence was placed in tiie appropriate location, witii respect to tiie planned boundary between tiie
open space and the development, but tiie swath of vegetation removed to accommodate tiie fence
included areas on the open space side as weU as tiie development side. Approximately half of tiie
vegetation removed was in tiie area proposed for open space. The approximate acreage of
gnatcatcher habitat impacted in tiie open space is estimated to be between 1 to 2 acres. The
installment of such a fence was a condition of tiie draft Biological Opinion. However, no
clearing of vegetation was to occur witiiin tiie areas designated as open space and no clearing was
to occur during tfie gnateateher breeding season. The Service is currently working witii botii tiie
City of Carisbad and the applicant to resolve this issue.
BIOLOGICAL OPINION
DESCRIPTION OF THE PROPOSED ACTION
The City of Carlsbad and Calavera Hills H, LLC are joint applicants seeking autiiorization from
tiie U.S. Army Corps of Engineers to impact wetiands and jurisdictional waters pursuant to
Section 404 in connection witii the development of a residential complex, the extension of two
existing arterial roadways, (College Boulevard and Cannon Road), and constiuction of two
detention basins, located witiiin tiie northeast portion of the City of Carlsbad, San Diego County,
Colonel Richard G. Thompson (FWS-SDG-1597.5)
ENONrrASV
t
0 MILES 2.2 4.4 FIGURE 1
Regional Location ofthe Project
Colonel Richard G. Thompson (FWS-SDG-1597.5)
CAUVERAHIUS MASTER PLAN BOUNDARV
wl| e«taMMHMtnMMH
Figure 2
CALAVERA HllJtS PHA$EJI BRIDdE A THOROUGHFARE DISTRICT NO, 4
ANDlafeTENTlOHBASW PRC^iCT LOCAttDH MAP
Colonel Richard G. Thompson (FWS-SDG-1597.5) 8
College Boulevard through Calavera Hills Phase H (College Reach C - approx. 3,600 ft. in
lengtii) and from Calavera Hills to its proposed intersection witfi Cannon Road (College Reach B
- approx. 1.800 ft. in length), and Cannon Road from tiiis proposed intersection to El Camino
Real (Cannon Reach 3 - approx. 3,600 ft." m length) would be constracted as part of Calavera
Hills Phase n. Constraction of tiiese reaches of roads is proposed to begin in Febraary 2002 and
take approximately one year to complete. Constraction of College Boulevard from tiie
College/Cannon intersection, soutii to El Camino Real (College Reach A - approx. 3,500 ft. in
lengtii) will be constixicted as a second phase, and is; expected to begin in approximately 2004.
Cannon Road east of the College/Cannon intersection some 1,200 feet into tiie CUSD high
school site (Reach 4A) will be tiie last phase of tiie proposed project road development, and is
expected to begin concurrentiy witii consttuction of tiie high school. Constiuction of tiie BTD
wiU impact native vegetation (Table 1).
Botit College Boulevard and Cannon Road are major arterials on tiie City of Carlsbad Circulation
Element As such, tiieir design includes two 12-foot travel lanes in each direction, witii an 18-
foot median separating tiie ttavel directions. Curis-to-curt) widtii is 82-feeL Speed limits on tiie
roadways are expected to be posted at 45 mph.
Table L
Impacts to native vegetation associated with construction of Bridge and Thoroughfare
Roadway Segment Constructed with
Development Phase
Permanent and
Temporary
Wetlands and
Waters Impacts
Coastal Sage
Scrub Impacts
College Reach C Calavera Hills Phase
n
0.0 ac. 5.7 ac.
CoUege Reach B Calavera Hills Phase
n
0.8 ac-3.2 ac.
Cannon Reach 3 CalavCTa HiUs Phase
n
1.6 ac. 0.0 ac.
College Reach A Bv2006 1.0 ac. 1.5 ac.
Cannon Reach 4A High school
development
0.0 ac. 0.0 ac.
TOTAL 3.4 ac 10.4 ac
Detention Basins B.T and B.IB
Ul conjunction with consttuction of College Boulevard, the City of Carlsbad plans to install two
pennanent detention basins for flood conttol puiposes. These basins are needed because
downstteam homeowners in tfie Rancho Carlsbad Mobile Home Park experience flooding during
heavy storai events. The eartfien roadway bed of College Boulevard is designed tt> provide tfie
embankment necessary to impound the floodwaters, and release tfiem gradually, to avoid tfie
downstteam flood damage. As a result, all impacts associated witfi the detention basins are
Colonel Richard G. Thompson (FWS-SDG-1597.5) 10
Tables.
Wetiand Plant Conununity Mitigation (Including temporary impacts)
Plant Community Prqject Impacts Mitigation Ratio Required On-site
Mitigation
Riparian woodland 2.17 ac. 3:1 (temp. 1:1) 6.5 ac.
Riparian scrab 0.55 ac. 3:1 (temp. 1:1) 1.7 ac.
Riparian forest 0.00 ac. 3:1 (temp. 1:1) Oac.
Cismontaine alkali marsh 0.77 ac. 3:1 (temp. 1:1) 2.3 ac.
Wetiand TOTAL 10.5 ac.
Non-wetiand jurisdictional
waters
0.21 ac. 1:1 0.2 ac.
GrandTOTAL 3.7 ac. 10.7 ac.
3. Compensation for impacts to die federally threatened coastal Califomia gnateateher and
removal of 91.2 acres of coastal sage scrab vegetation will be accompUshed through the
on-site avoidance of 873 acres of existing coastal sage scrab and revegetation of 2.4
acres ofthe site with coastal sage scrab. TTiis totals 89.7 acres of on-site coastal sage
scrab conservation. In addition, 35.6 acres of the Carlsbad Nature PresCTve propeity has
been purchased to offset impacts of tfie project (Table 2). TTie applicants wUl preserve an
additional 513 acres of gnatcatohCT-occupied coastal sage scrab off-site, within the
coastal portion of tfie MHCP area, at a location acceptable to the Service. If the
acquisition of this land is not accompUshed prior to issuance of a mass grading permit by
tiie aty, funding for acquisition of an additional 51.3 acres of coastal sage scrab off-site
at a location acceptable to thc Service and the City of Carlsbad wiU be provided throu^
dqiosit of $1,128,600 and $394,650.00 into tfie Califomia Gnateateher Consorvation
Fund (National Fish and Wildlife Foundation Account No. 97-166). The $1,128,600 is to
be used for propeity acquisition and tiie and tiie $394,650.00 is to be used for the creation
of an endowment fimd for maintenance and management of the acquired site (tiie
$394,650.00 dollar amount may bc revised if a Property Analysis Report [sic](PAR)
prepared by a quaUfied open space manager determines less money is needed for the
endowment).
Tabled
CSS Mitigation Activity Acreage
On-site Preservation . 87.3 ac.
On-site revegetation -2.4 ac.
Carlsbad Nature Preserve
Credit
35.6 ac.
Offsite CSS acquisition 51.3 ac.
TOTAL 176.6 ac
12 Colonel Richard G. Thompson (FWS-SDG-1597.5)
11 An employee education program wiU be developed and implemented. The applicant will
submit the contents of the Woricer Environmental Awareness Program and tiie
qualifications of ttie proposed insttuctor(s) to tiie Service prior to initiation of tfie
employee education program. Fortiie life ofthe consttuction project, each employee
(including temporary conttactors and subconttactors) will receive a ttaining/awarcness
program witiiin two weeks of woridng on tfie proposed project They will be advised of
the potential impacts to tiie listed species and tiie potential penalties for taking such
species. Ataniinimuni,tiieprogramwin include tfie following topics: occunence of tfie
listed and sensitive species in tiie areas, tfieir general ecology, sensitivity of tiie species to
human activity, impacts from free-roaming pets (particularly domestic and feral cats),
legal protection afforded tfiese species, penalties for violation of Federal and State laws,
reporting requirements, and project features designed to reduce die impacts to tiiese
species and promote continued successfiil occupation of tfie preserved areas.
12 The applicant wiU designate a field contact representative (FCR) or biological
consttuction monitor who wiU be responsible for overseeing compUance witii protective
measures for tiie Usted species and sensitive areas during consttuction- The FCR will
have tfie autiiority to halt all associated project activities, which raay be in violation of tiie
terms and conditions of this biological c^inioo.
13. A draft monitoring/management plan(s) tfiat addresses botii tiie habitat and tiie species
win be developed and implemented in coordination with tfie Service. The
monitoring/management plan(s) wiU be submitted to tfie Service and tfie Corps for
approval vdtfiin 60 days of tfie date of your 404 pennit and provide a descnption of any
measuies tfie applicant has implemented to avoid and minimize tfie effects of tfie project
and a description oftiie funding mechanism tfiat assures tfiat tfie conservation measures
are fiilly implemented and meet success criteria. Management issues to be addressed m
tfie plan include: biological monitoring for Usted and otfier MHCP-covered species,
fencing as necessaiy to provide adequate protection of conserved on-site habitat from
human encroachment and domestic pets, shielding of any lighting adjacent to tfie
conserved areas to minimize Ughting effects in tiiese areas, resttictions on tiie use of
invasive landscaping plants in areas adjacent to tfie conserved areas, and ttail use and
signs to minimize effects of tiail use on conserved areas, weed removal and trash removal
ftom conserved areas.
14 A wildlife undertTOSsing will be incorporated into the design of College Boulevanl Reach
B to faciUtate movement of large mammalian predators (e.g., coyotes and bobcats)
between habitat to tfie northeast (including Calavera Nattire Preserve) and habitat to tfie
soutiiwest (including Robertson Ranch and Agua Hedionda Lagoon) (Figure 3).
Colonel Richard G. Thompson (FWS-SDG-1597.5) 14
STATUS OF THE SPECIES/CRITICAL HABITAT
Coastal Califomia Gnatcatcher (Polioi>tila califomica califomica)
Listing Status
The Service listed the coastal Califomia gnatcatcher as tiireatened on March 30,1993 (Federal
Register 58: 16742). As part of tfie Federal Usting, tiie Service issued a special rale, pursuant to
section 4(d) of tiie Act defining tiie conditions under which take of tfie gnateateher would not be
a violation of section 9. This special rale recognized ttie State's Natural Community
Conservation Planning (NCCP) Program, and several local governments' ongoing multi-species
conservation planning efforts (e.g., tiie MHCP) tiiat intend to apply Act standaids to activities
affecting tfie gnateateher. An interim process was estabUshed whereby jurisdictions actively
involved in NCCP planning would be allowed to take up to five percent of tfie remaining coastal
sage habitat for projects tiiat were consistent witfi tfie NCCP conservation guideUnes.
Species Description
The coastal California gnateateher is a small (lengtii: 11 centimeters; wei^f 6 grams), long-
tailed member of tiie old-world warble and gnatoatehCT family Sylviidae (American
Omitiiologists' Union 1998). The bird's plumage is dark blue-gray above and grayish-white
below. The tail is mostiy black above and below. The male has a distinctive black cap which is
absent during tiie winter. Botii sexes have a distinctive white eye-ring.
The coastal CaUfomia gnateateher is one of tiuee subspecies of the CaUfomia gnateateher
(Polioptila califomica) (Atwood 1991). Prior to 1989, tfie Califomia gnateateher was classified
as a subspecies of tfie Black-tailed gnateateher (Polioptila melanura). Atwood (1980,1988)
concluded tfiat tfie species was distinct from P. melanura, based on differences in ecology and
behavior. Recent mitochondrial DNA sequencing confirmed tiie species-level recognition oftfie
Califomia gnatcatcher (Zink and Blackwell 1998).
Distribution
Gnatcatehers occur on coastal slopes in soutfiem California, ranging from southern Ventura
soutfiward tfirough Palos Veides Peninsula in Los Angeles County through Orange, Riveiside,
San Bemardino and San Diego Counties into Baja Califomia to El Rosario, Mexico, at about 30
degrees north latitude (Atwood 1991). hi 1990, Atwood reported tiiat ninety-nine percent of all
gnateateher locality records occurred at or below an elevation of 300 meters (m) (984 feet (ft)).
In 1992, Atwood and Bolsihger reported tfiat of 324 sites of recent occurrence, 272 (84 percent)
were located below 250 m (820 ft) in elevation, 315 (97 percent) were below 500 m (1,640 ft),
and 324 (100 percent) were below 750 m (2,460 ft). Since tiiat time, additional data collected at
higher elevations shows tiiat tfiis species may occur as high as 912 m (3.000 ft) and tiiat more
than 99 percent of tiie known gnateateher locations occurred below 770 m (2.500 ft) (U.S. Hsh
and Wildlife Service 2000).
Colonel Richard G. Thompson (FWS-SDG-1597.5) 16
Life History
TTie CaUfomia gnatcatcher is primarily irisectivorous, nonmigratory, and exhibits strong site
tenacity (Atwood 1990). Diet deduced fipm fecal samples resulted in leaf- and plant-hoppers
and spiders predominating the samples. Trae bugs, wasps, bees, and ants were only minor
components of the diet (Burger et al. 1999). Gnateateher adults selected prey to feed tfieir young
that was larger than expected given the distribution of artiiropods available in their environment.
Both adults and young consumed more sessile than active prey items (Burger et al. 1999).
Hie California gnateateher seems to become highly territorial by late Februaiy or early March
each year, as males become more vocal during this time period (Mock et aL 1990). In
southwestem San Diego County the mean breeding season territory size ranged from S to 11 ha
(12 to 27 ac) per pair and non-breeding season territt)ry size ranged from 5 to 17 ha (12 to 42 ac)
per pair (Preston et aL 1998). During the nonbreeding season, gnatcatohras have been observed
to wander in adjacent territories and unoccupied habitat increasing thdr home range size to
approximately 78 percent larger tiian tfieir breeding territory ^heston et aL 1998).
The breeding season of the gnateateher extends from mid-Febraaiy through the end of August,
witfi the peak of nesting activity occurring fiom mid-Mardi tiirou^ mid-May. TIMJ gnateateher's
nest is a small, cup-shaped basket usuaUy found 03 to 1 m (1 to 3 ft) above tfie ground in a smaU
shrab or cacttis. Quteh sizes range between tfiree and five eggs, witii the average being four.
Juvenile birds assodate with their parents fot several weeks (sometimes montiis) after fledging
(Atwood 1990). Nest building be^ns in mid-March with tfie eariiest recorded egg date of March
20 (Mock et aL 1990). Post-breeding dispersal of fledglings occurs between late May and late
NovembCT. Nest predation is the most common cause of nest failure (Grishaver et aL 1998).
Gnatoatohers are persistent nest builders and often attempt multiple broods, which is su^estive
of a hi^ reproductive potential. This is, however, typically offset by high rates of nest predation
and brood parasitism (Atwood 1990). Nest site attendance by male gnatoatehers was determined
to be equal to tfiat of females for tfie first nest attempt and then decline to almost a third of
female nest attendance for later nesting attempts (Sockman 1998).
Gnatoatchere typically Uve for two to three years, although ages of up to five years have been
recorded for some banded birds (Dudek and Assodates 2000). Observations indicate that
gnatcatchers are highly vulnerable to extreme cold, wet weatiier (Mock et aL 1990). Predation
occurs in greater proportion in the upper and lower third of the nest shrab. Predation is lower in
nests with full clutch sizes (Sockman 1997). Potential nest predators are numerous, and include
snakes, raccoons, and corvids (Grishaver et aL 1998). The Califomia gnateateher also is known
to be affected by nest parasitism of the brown-headed cowbird (Molothrus ater). Nest parasitism
apparentiy has resulted in earlier nesting dates of tiie gnateateher which may help compensate for
tfie negative effect of parasitism (Patten and CampbeU 1998). However, tiie gains in nest success
from decreased nest parasitism appear to be negated by increased nest abandonment due to
predation before cowbirds have migrated into an area (Braden et al. 1997).
The natal dispersal, for a nonmigratory bird, such as the gnateatohCT, is an important aspect of the
biology of tiie spedes (Galvin 1998). The mean dispersal distance of gnatoatehers banded in San
Colond Richard G. Thompson (FWS-SDG-1597.5) 18
coastal sage scrab is an increase in wildfires due to anthropogenic ignitions. High fire
frequencies and the lag period associated witti recovery of ttie vegetation may significandy
reduce tfie viability of affected subpopulations (Dudek and Associates 2000). Furthennore, nest-
parasitism by tiie brown-headed cowbird Ctjnitt 1984) and nest predation threaten tiie recovery of
tiie gnatcatcher (Atwood 1980, Unitt 1984).
Least BelPs Vireo (Vireo bellii pusillus)
Listing Status
The least BeU's vireo was federally-Usted as endangered on May 2.1986 (Federal Register 51:
16474) and state listed as endangered in Califomia on October 2,1980. A draft recovery plan
was prepared for tfiis spedes in March 1998 (U.S. Rsh and WildUfe Service 1998).
Species Description
The least BeU's vireo is a small migratory songbird. It is oUve-gray above and pure white on its
undeiparts witfi two duU white wing stripes and dull white to oUve nairow margins on tfie outer
border of its wings and tail. Males and females are identical in pluma^. This vireo is easily
distinguished by its song, a rapid bubbling series of rough notes, increasing in tempo and
intensity toward a rapid cUmax. Phrases of tiie song are altematively slurred upward and
downward. Eggs are on average 17.5 milUmeters (mm) (0.7 inches (in)) long, and duU white,
often with fine brown, black, or reddish-brown dots concentrated on the larger end (Brown
1993).
The least BeU's vireo is in tiie family Vireonidae, and is one of four subspedes of BeU's vireo
(Vireo bellii) that have been recognized. Although all subspedes are similar in behavior and life
history, they are isolated from one another on botii tiie breeding and wintering grounds (Hamilton
1962).
Distribution
The least Bell's vireo formerly was found in valley bottom riparian habitats from Tehama
County. CaUfomia soutiiwaiti locally to northwestem Baja California. Mexico in tfie south, and
as far east as Owens Valley. Deatfi Valley, and along tfie Mojave River (Grinnell and Miller
1944). Except for a few outlying pairs, the subspedes is currentiy restricted to southem
Califomia south oftfie Tehachapi Mountains and northwestem Baja Califomia (Garrett and
Dunn 1981). Least BeU's vireo breeding pairs currentiy occur in Monterey. Sari Benito, Inyo.
San Bemardino, Ventura, Los Angeles, Orange, Riverside, and San Diego Counties. The highest
reported conccnttation is in San Diego County along tiie Santa Mai:garita River (Small 1994).
According to Grinndl and Miller (1944) 1,200 meters (m) (4,000 feet (ft)) is tiie upper limit
where least BeU's vireo occur in coastal southern California.
Colonel Richard G. Thompson (FWS-SDG-1597.5) 20
0 to 20 m (0 to 66 ft) but most feeding is concenttated above the ground surface in the lower
vegetation layers between 0 to 6 m (0 to 20 ft) (Kus and Minor 1987, Salata 1983b). Feeding
behavior largely consists of collecting prey from leaves or in bark crevices while perched or
hovering, and less frequentiy by capturing'prey by aerial pursuit (Salata 1983a, 1983b).
Least BeU's vireo are mainly monogamous, however, some individuals of botii sexes are
sequentially polygamous witfiin the breeding season (Greaves 1987). The male vireo contests
and estabUshes breeding territtmes (Barlow 1962) which range in size from 0.2 to 3.0 ha (0.5 to
7.4 ac) (Gray and Greaves 1984, Collins et al. 1992) witii most averaging between 0.4 and 1.2 ha
(1 and 3 ac) (U.S. Rsh and Wildlife Service 1998). Territories in BeU's vireo are maintained by
threat and physical confrontation eariy in the breeding season, tapering to vocal wamings later in
the season (Bariow 1962).
The breeding season for least BeU's vireo extends from mid-March to mid- OT late-September
(U.S. Hsh and WildUfe Service 1986). A majority of tiie birds arrive firom tiie Mexican
wintering areas by tiie end of March, and depart by end of August (Zeiner et dL 1990). Most
breeding vireos depart the breeding grounds by tiie third week of Septembor, and only very few
ate found wintering in tiie United States (Ganett and Dunn 1981, Salatti 1983b). Nests are
typicaUy suspended in forked branches of nuuiy different riparian spedes witii no clear
preference for any particular species (Nolan 1960, Bariow 1962, Gray and Greaves 1984). Least
BeU's vireo nests are usuaUy placed between 0.9 and 1.5 m (3.0 and 4.9 ft) from tfie ground with
a range between 0.2 and 3.6 m (0.7 and 11.8 ft) (Dudek and Assodates 2000). Females probably
select the nesting sites but both genders participate in nest constraction (Barlow 1%2). Nests
appear to only be used once with new ones constracted for failed or successive broods (Greaves
1987). Between 2 to 5 (typically 3 or 4) eggs are laid shortly after nest consttuction (U.S. Hsh
and WildUfe Service 1998). A typical clutch is incubated by both parents for about 14 days with
tfie young remaimng in tfie nest far anotfier 10-12 days (Pitelka and Koestner 1942, Nolan 1960,
Bariow 1962). Least Bell's vireo may produce two broods of young and occasionaUy up to four
per season, altfiough it is thought tfiat most are capable of successfuUy raising only one brood
(Franzreb 1989).
Banding recoids have documented BeU's vireo tfiat have lived approximatdy seven years,
however, maximum Ufe-span is probably longer (Brown 1993). Over two different time periods,
witfiin tfie same population. Greaves and Gray (1991) found tiiat only a small percentage of tiie
vireos were older than 3 and 4 years (8 percent and 15 percent). Survival rates measured as
average nesting success has been recorded for several large drainages in southem Califomia
(U.S. Rsh and Wildlife Service 1998). The average percentage of nests to successfully produce
fledglings ranges over several study areas from 46 percent (on the Santa Ana River) to a high of
74 percent (on the westem portion of die San Luis Rey River) (U.S. Rsh and Wildlife Service
1998). Beyond one year, survivorship increases averaging approximately 47 percent (U.S. Fish
and Wildlife Service 1998). Predation is common in least Bell's vireo owing in part to tfie close
proximity between nest and ground (Franzreb 1989). Nest predation among least Bell's vireo has
been reported as high as 45 percent in tfie San Luis Rey river to as low as 8 percent on tfie San
Diego River (Salata 1983b).
Cdonel Richard G. Thompson (FWS-SDG-1597.5) 22
further suggested ttiat buffer zones between natural areas and sunounding degraded and
disturbed areas could be used to increase the suitability of some vireo habitat. It appears that
vireos nesting in areas containing a high proportion of degraded habitat have lower productivity
(e.g.. hatching success) ttian ttiose in areas? of high quality riparian woodland (Pike and Hays
1992). Additionally, widespread habitat losses have fragmented most remaining populations into
small, disjunct widely dispersed subpopulations (Franzreb 1989). As much as 90 percent ofthe
original extent of riparian woodland in Califomia has been eliminated, and most of tiie remaining
10 percent is in a degraded condition (Smitii 1977. Dahl 1990). Obertiauer (1990) reported a 61
percent loss of riparian habitat for San Diego County. Habitat fragmentation negatively affects
abundance and distribution of neottopical migratory songbirds, in part by increasing inddenat of
nest predation and parasitism (SmaU and Hunter 1988, Yahner and DeLong 1992). Management
programs aimed at redudng numbers of cowbirds have been considered very successful at
maintaining some local populations (Small 1994).
ENVIRONMENTAL BASELINE
Regulations implementing tiie Act (50 CFR §402.02) define tfie environmental baseUne as tiie
past and present impacts of all Federal, State, or private actions and otiier human activities in tiie
action area. Also included in the environmental baseUne are the antidpated impacts of all
proposed Federal projects in tiie action area that have undergone section 7 consultation, and the
impacts of State and private actions which are contemporaneous vwth the consultation in
progress.
The proposed project area is within tiie planning area for MHCP: a subregional plan that wiU
addiess north coastal San Diego County under the NCCP prograuL Furthennore, tfiis area is
witfiin tfie planning area of tfie City's draft HMP (City of Carlsbad 1994), which is a subarea plan
under the MHCP, The HMP was used as a guideUne in foraiulation of biological resource
conservation measures, core and linkage areas, and open space boundaries associated witii tfiis
and other large development {»ojects in Carlsbad.
Land to tfie north of Calavera Hills Phase H is currentiy covered primarily in residential
development, built as part of Calavera IfiUs Phase L Further to tiie north is tfie dty of Oceanside.
Corridors of native vegetation (ranging in widtii between 550 and 75 feet) extend tfirough tiiis
residential area, connecting with undeveloped land immediately south of state route 78, that
currentiy consist of native and non-native vegetation, occupied by gnatcatehers. Lands to the
west between tfie Pacific Ocean and Calavera Hills are entirely covered in residential
development Immediately to tfie soutfi of Calavera Hills is Robertson Ranch. Robertson Ranch
is currentiy farmed, but tiie eastem portion of tiie ranch is expected to be converted to residential
development witiiin 5 years, and tiie westem portion witiiin 10 years^Briah Milich, Mark
McGuire, pers. comm.). The eastem portion of the project site consists of tiie Calavera Nattire
Preserve: an area set aside to compensate for impacts ofthe Calavera Hills development Native
vegetation, ranging in widtii from about 100 feet to about 500 feet extends about 1.200 feet east
of ttie eastem border of tiie Calavera Nattire Preserve, before it is surrounded by residential
development Ottierwise. lands to the east of the master plan area are covered witfi residential
and commerdal development of various densities, tiiroughout tiie City of Vista.
Cdonel Richard G. Thompson (FWS-SDG-1597.5) 24
The riparian habitat proposed for impact by the BTD is part of a strip of riparian vegetation along
Calavera Creek, approximately 100 feet wide, extending approximately 4,200 feet to the nortfi
from ttie northeast comer of the Rancho Carlsbad Mobile Home Park. This riparian vegetation
consists primarily of an overstory of westem sycamore (Platanus racemosa) witii an understory
of mulefat (Baccharis salicifolia). However, the soutfiem end of tiiis riparian sttip includes a
significant component of willow, which is tiie typical overstory ttee of vireo habitiit This area
including titie willow has more dense vegetation from approximately 2-10 feet above the ground,
than does the sycamore-dominated riparian vegetation to the north. Franzreb (1989) considered
a dense vegetation layer at tiiis level to be tiie most critical stractural component to least Bell's
vireo breeding habitat The proposed intersection of College Boulevard and Cannon Road is
situated witiiin tiie soutti end of tiiis riparian stiip. in tiie area witfi significant willows. Vireo
surveys were conducted according to Service guideUnes between April 27 and July 14,2000.
One pair of vireos. detected at tfie site of the proposed intersection of CoUege Boulevard and
Cannon Road, persisted at tiiat location through tiie breeding season and nested-successfidly. An
additional vireo was detected once, north of tiie territory of tfie paired birds,
EFFECTS OF THE ACTION
Effects of tihie action refer to tiie direct and indirect effects of an action on tfie spedes OT critical
habitat, together witii tiie effects of otiier activities tfiat are intenelated and interdependent with
tfiat action, tiiat wiU be added to the environmental baseUne. Intenelated actimis are tiiose that
are part of a larger action and depend on die larger action for their justification. Interdependent
actions are tiiose tfiat have no independent utiUty apart finom tiie action under consideration.
Indirect effects are those that are caused by tiie proposed action and are later in time, but arc stiU
reasonably certain to occur.
Direct effects
The proposed project will resuU in tiie loss of 91.2 acres of Diegan coastal sagp scrab (80.8 acres
from Phase B. and 10.4 acres witiiin tiie BTD, 36.4 percent of tiie coastal sagp scrab on-site),
29.5 acres of otiier habitat types (27.5 acres of chapanal, and 2.0 acres of non-native grassland)
that may be used by gnatoatehers. and 2.5 acres of potential vireo habitat (1.9 acres of riparian
woodland, and 0.6 acre of riparian scrab). The gnateateher found during surveys conducted in
November 1999 to January 2000 beside El Camino Real, at tiie proposed intersection with
College Boulevard, is likely to have been already impacted by tfie portion of El Camino Real and
College Boulevard tiiat has already been completed for tiie Terraces at Sunny Creek project The
gnatoatehers found in areas that will be cleared for development will be directiy impacted and
may be killed or injured. Because habitat clearing will occur in tiie non-breeding season, no
diiect interraption of reproduction is expected. Gnateatehers found on tiie Phase n site are
mapped in areas tfiat are not proposed for direct impact However, tfie extent of tfidr use areas is
not reflected on tfie map included in ttie Biological Technical Report (Recon 2001), because tiie
map represents gnatcatcher territories as points, rattier tfian polygons. The extent to which the
birds' use areas overiap tfie area proposed for impact is not known. Therefore an unknown
portion oftiiese territories may also be directiy impacted, and tfiis impact may kill tfie
gnatoatehers or cause tfiem to relocate. Gnatcatehers displaced from the Calavera Hills impact
Colonel Richard G. Thompson (FWS-SDG-1597.5) 26
Indirect effects
Another significant effect of C::alavera Hills development on gnatcatcher populations is habitat
fragmentation, which tends to disrapt various ecosystem processes within the remaining habitat
Habitat fragmentation negatively affects abundance and disttibution of songbirds, in part by
increasing incidence of nest predation and parasitism (Whitcomb et al. 1981, Small and Hunter
1988), and by decreasing probability of recolonization of vacant habitat after local extirpation
(Crooks et aly in press). Recolonization of vacant habitat occurs tiirou^ natal dispersal (i.e.,
gnateatehers in their first year, leaving their natal territory to estabUsh territories elsewhere).
Thus, gnatcatehers dispersing fiom areas north of Calavera Ifills may recolonize vacant habitat
south of Calavera HiUs, or vice v«sa. The principle of interaction of local populations of
gnatcatehers through natal dispersal underiies the Service's rationale fOT our definition of the
action area in this biological opinion.
The impact of fragmentation on gnateatehers should be analyzed witii respect to otho- proposed
and existing preserves in Carlsbad. "Core Area 3 Preserve Planning Area" in tiie Draft Habitat
Management Plan fOT die City of Carlsbad, is intended to provide a relatively secure "source"
population of gnateatehers, tfiat may disperse via Links A, B, and C to Core Areas 2,4,5, and
beyond. To an unquantified extent constiuction of the BTD and the residential streets of
Calavera HiUs, and increased auto traffic in the area assodated with the addition of 781 hon^,
vwU increase the risk of traffic-related mortality of wildlife, including gnatcatehers. attempting to
move within Core Area 3 and Links A and B.
Connectivity between habitat reserve areas is essential for long term maintenance of the viability
ofthe wide range of spedes in ttiis biological community, including the gnatcatcher. Movement
corridors between isolated patehes of gnatcatcher habitat (i.c., the remaining patohes of
gnateateher habitat in coastal dties of San Diego County) serve to (1) aUow exchange of genetic
material between separate populations, (2) allow recolonization of habitat patohes from which
gnateatehers have been extirpated, and (3) allow relatively safe travel fOT gnateatehers moving
from one area to another (whettier in natal dispersal or other movements). Nanowii^ of
conidors intended for movement of gnateatehers is thought to reduce the function and value of
those corridors. Nairow corridors are more difficult for a dispersing animal to find. Conidors
that are occupied by conspecifics may be (Ufficult for dispersing gnatoatehers to tiraverse, due to
aggression from occupying gnatcatchera. A narrower corridor is easier for a territorial bird to
defend against inttusion. and tiius more difficuU for a dispersing bird to traverse. Narrow
corridors have a higher edge/area ratio, making the habitat within the conidor more subject to
deleterious edge effects O-e.. human disturbance, noise, house cats, exotic plants, dumping, etc.).
The proposed project site includes a corridor of native habitat identified as Link A in the HMP.
This corridor rans roughly nortti and south, connecting Core Areas 2-and 3, and in a lai^
context connects aU of tiie gnatcatcher habitat witiiin tiie City of Carlsbad south of tiiis point
with the "stepping stone" corridor of gnatcatcher habitat patches extending through Oceanside, to
core populations of gnateatehers on Camp Pendleton. The area west of link A is developed, all
the way to tfie Padfic Ocean, approximately 3 miles (4.8 kilometers), offering no corridors of
native habitat for north-soutfi movement of gnatcatchers. East of Unk A, no significant north-
soutfi corridors of native vegetation remain between link A and the east side of Vista, about 5.5
Colond Richard G. Thompson (FWS-SDG-1597.5) 28
accumulation of ttash and food, attracting predators tfiat may prey on gnatcatchers. Efforts will
be made to keep the consttuction site free of tt^sh or food tiiat may attract predators. The
Calavera Hills development and BTD may also resuU in increased potential for vehicle-related
mortality to gnatcatchers, changes in fire fiequency (e.g., suppression/fud modification), and
invasion of the area by exotic flora and fauna.
Impacts to gnatcatehers affected by project devdopment may affect gnateatehers well outside of
tiie immediate vicinity of tfie project, tfirough competition witii displaced birds, reduced mate
availability, and reduced genetic diversity. The distance from tiie projert at which gnateatehers
outside tfie project footprint may be afferted by effects to gnateatehers within or near tiie projert
footprint depends on tfie dispersal distance (primarily natal dispersal) of gnatcatehers. Mock and
Bolger (1992) observed gnateateha- natal dispersal distances in westem San Diego County of up
to 9 kilometers; however, their data suggests tfiat over 90 percent of gnatt^tohers disperse within
5.5 kilometers of tfieir natal toritory. This is probably a conservative estimate of gnatt^atohOT
dispersal capabihty. because dispersing gnateatehers are more Ukely to escape detection farther
from tiie natal territory. Conversely, birds tiiat disperse shorter distances are more likely to be
observed, resulting in a bias toward observed dispersal distances that are shorter than zwers^.
For puiposes of defining tiie action area, tfie Service estimates tiiat impacts to gnatcatehers in the
area of impart of Calavera IBUs may affect mate availabiUty, temtory availabiUty. and exchange
of genetic material witii gnatcatchers up to 5.5 kilometers from tfie edge of tfie impart area.
The preservation of 87.3 acres of existing coastal sage scrab and revegetation of 2.4 acres witii
coastal sage scrab on-site, tiie preservation of 35.6 acres of coastal sage scrab in tiie adjacent
Calavera Nattire Preserve, and tiie off-site preservation of 513 acres of coastal sage scrab habitat
is expected to increase likelihood of gnateateher population persistence by precluding up to 176.6
acres of potential fiitiire habitat loss. Active management (i.e., control of off-road vehicles,
exotic vegetation removal. ti:ash removal, access control, fire management eto.) of tiiese
preserved areas is expected to reduce indirect impacts exacerbated by surrounding development
and to improve gnateateher habitat quality witiiin tiiese areas, which arc already subject to
deleterious indirect effects. The 125.3 acres of on-site and adjacent areas to be preserved and
actively managed to conserve and improve tiidr function and value as gnateateher habitat all lie
within critical habitat fOT the gnateateher.
CUMULATIVE EFFECTS
Cumulative effects are tiiose impacts of future non-Federal (State, local govemment or private)
activities on endangered or tiireatened species or critical habitat tiiat are reasonably certain to
occur during tiie course of tiie Federal activity subject to consultation. Future Federal actions are
subject to tiie consultation requirements estabUshed in section 7 of ttfe Act, and, therefore, are not
considered cumulative in the proposed project.
We anticipate tfiat a wide range of activities will be determined to affect tiie gnateateher. Such
activities indude, but are not limited to mban development flood control, highway, and utility
projects; as well as conversion OT degradation of habitat resulting from agricultural and grazing
use. The future MHCP Subarea Plan for tfie City is subject to consultation under section 7 of tiie
Colonel Richard G. Thompson (FWS-SDG-1597.5) 30
2. The number of gnatcatchers expected to be affected by the projert is not expected to
have a significant effect on the species' overall numbers, distribution, or reproductive
potential. This number is a smaU proportion of ttie total and regional populations.
3. Impacts to ttie vireo through the direct loss of 2,72 acres of riparian habitat will be
adequately offset through implementation of the conservation nieasures, as described
in the project description:
a. the on-site creation and management of 10.7 acres of southem willow scrab
on Clalavera and Littie Encinas Creeks, as described in the Habitat Restoration
and Monitoring Plan for ttie City of Carlsbad Bridge and Thoroughfare
Disttict No. 4, ttie Calavera Hills Projert, and ttie Detention Basins Project in
Carisbad. California (Recon, January 10.2002).
4. The number of vireos expected to be affected by the projert is not expected to have a
significant effect on the spedes' overall numb^, distribution, OT reproductive
potential. This number is a small proportion of the total and regional populations.
5. The anticipated level of impact wiU not preclude the design and implementation of a
habitat preserve Systran in the City of Carlsbad, and wiU provide for conidora linking
HMP core areas 2 and 3, tiius linking Carlsbad's preserve system to that of
Oceanside.
INCIDENTAL TAKE STATEMENT
Section 9 of tfie Art and Ffederal regulation pursuant to section 4(d) of tiie Act prohibit the take
of endangered and tfireatened species, respectively, witiiout spedal exemption. Take is defined
as to harass, harm, pursue, hunt shoot wound, kiU, tirap, capttire, collect or to attempt to engage
in any such conduct Harm is further defined by tfie Service to include significant habitat
modification or degradation that results in deatfi or injuiy to Usted species by significantly
inqiairing essential behaviw patterns, including breeding, feeding, OT sheltering. Harass is
defined by tiie Service as intentional or negUgent artions tfiat create the UkeUhood of injury to
listed species to such an extent as to significantiy disrapt normal behavior pattems which
include, but are not limited to. breeding, feeding, or sheltering. Incidental take is defined as take
that is incidental to, and not the purpose of, the carrying out of an otiierwise lawful activity.
Under tfie terais of section 7(bK4) and 7(o)(2), taking tiiatis incidental to and not intended as
part of ttie agency action is not considered to be prohibited taking under ttie Act provided ttiat
such taking is in compUance witti ttie terms and conditions of tiiis Inddental Take Statement.
The measures described below are non-discretionary, and must be undertaken by the Corps so
ttiat ttiey become binding conditions of any grant or permit issued to tiie applicant, as
appropriate, for tfie exemption in section 7(o)(2) to apply. The exemption in section 7(oX2) for
inddental take is only granted to the applicant once the Corps issues a final permit for the
project puisuant to section 404 of tiie Clean Water Art. The Corps has a continuing duty to
Colonel Richard G. Thompson (FWS-SDG-1597,5) 32
1 The Corps and tfie project proponent shall implement reasonable and pradent measure
1 through the following terms and conditions:
a. The Service hereby incorporates by reference tiie Conservation Measures 4-13
identified in tiie "Project Description" of this biological opinion into this
Incidental Take Statement as terms and conditions.
b. No clearing or grabbing activity in coastal sage scrab or southem mixed
chapanal shall occur between February 15 to August 31 to avoid impacts to
nesting gnateatehers. A deviation from this schedule to initiate work in
August, prior to August 31,2002. would require coordination witfi, and
approval by, the Service after tfie appUcant has demonsti:aled tiiat all
gnateatehers have completed nesting and all young have fledged and
dispersed.
c. If constiuction wiU occur witfiin 500 feet of occupied gnateateher habitat
(considered by tfie Service to be aU coastal sage scrab and chaparral on-site)
between Febraaiy 15 and August 31, pre-consfruction surveys shaU be
conducted in the adjacent habitat to detwmine the location of tiie nesting
birds. During constiuction, no activity vriU occur witiim 500 fed of active
nests of the gnateateher, unless measures are implemented to minimize the
noise and disturbance to those adjacent birds. These measures shall include
sound walls tiiat ensure that tiie hourly L^, sound levels reaching gnateateher
habitat areas do not exceed tiie 60 dBA tiireshold.
d. Treatment of ranoff fiom tiie projert site, referred to in ConsOTvation Measure
5, shaU be approved by tiie Regional Water Quality Continol Board, as
addressed in Tentative Order No. R9-2002-O014: Waste Discharge
Requirements and Section 401 Water Quality Certification for Calavera Hills
n, LLC and City of Carlsbad Calavera Hills Mastor Plan Phase H and Bridge
and Thoroughfare Disttict No. 4 and Detention Basins, San Diego County.
2. The Corps and the project proponent shall implement reasonable and pradent measure
2 throu^ the following terms and conditions:
a. The Service hereby incorporates by reference tiie Conservation Measures 1-3
identified in tiie "Project Description" ofthis biological opinion into tfiis
Incidental Take Statement as terms and conditions.
b. The project proponent shall ensure that long-term management of ttie on-site
preserved habitat areas will occur through the estabUshment of an endowment
account The amount of the endowment wUl be determined in consultation
witii tiie Service, after preparation of a Property Analysis Record (PAR) to
detemiine management costs and amount of endowment necessary to supply
sufficient management funds. Witfiin tiiree months of tfie acquisition of off-
Colond Richard G. Thompson (FWS-SDG-1597.5) 34
minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to
help implement recovery plans or to develop information.
1. The Service reconimends ttiat riparian habitat creation/restoration described in
conservation measure number 1 be completed prior to project-related loss of willow
scmb, to avoid temporal loss of riparian habitat
In order for the Service to be kept informed of actions minimizing or avoiding adverse efferts or
benefitting listed spedes or their habitats, ttie Service requests notification of the implementation
of any conservation recommendations.
REINTTIATION NOTICE
This concludes fonnal consultation on tiie development of Calavera Ifills Phase II. the BTD, and
Detention Basins, as outiined in tiie request fOT initiation. As provided in 50 CFR §402.16,
reinitiation of formal consultation is required where discretionaiy Federal agency involvement or
control over ttie action has been retained (or is autiiorized by law) and if (1) tiie amount or extent
of incidental take is exceeded; (2) new information reveals effects of ttie agency action that may
affect Ksted species or critical habitat in a manner or to an extent not considered in this opinion;
(3) the agency action is subsequentiy modified in a manner that causes an effect to tiie Usted
spedes or critical habitat not considered in tiiis opinion; or (4) a new spedes is listed OT critical
habitat designated that may be affected by the action. In instances where the amount OT extent of
inddental ttike is exceeded, any operations causing such take must cease pen<fing reinitiation. If
you have any questions or concems about this biological opinion, please contact John Martin of
my staff at (760) 431-9440.
Sincerely,
Nancy Gilbert
Assistant Held Supervisor
Colonel Richard G. Thompson (FWS-SDG-1597.5) 36
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Colonel Richard G. Thompson (FWS-SDG-1597.5) 38
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Nolan, V. 1960. Breeding behavior of the Bdl Vireo in soutfiem Indiana. Condor 62:225-244.
Noss R F 1993. Connectivity as a component of conservation stt^tegy for coastal sage scrab.
In P. F. Broussarti, M. S. Gilpin, D. D. Murphy. R. F. Noss, and J. F. O'leaiy (eds.).
Soutiiem CaUfomia Coastal Sage Scrab Nattiral Communities Conservation Plan:
Sdentific Review Panel Conservation Guiddines and Documentation. Califomia
Department of Rsh and Game, Sacramento, California.
Oberiiauer. T.A. 1990. Areas of vegetation communities in San Diego County. Unpubl. Rep.
County of San Diego. Departtnent of Planning and Land Use. San Diego County.
CaUfomia.
O'Leary J 1990. Califomian coastal sage scrab: general charaderistics and considerations for
biological conservation. Pages 24^1 in: Endangered Plant Communities of Soutiiem
Califomia, A. Schoenhen (ed.). Soutfiem California Botanists Spedal Publication
Number 3.
Patten. M. A. And K.F. CampbeU. 1998. Has brood parasitism selected for earlier nesting in
' tiie Califomia gnateateher? Westem Birds 29:290-298.
Pike J and L. Hays. 1992. The status and management of tfie least Bell's vireo witfiin tfie
Prado Basin. California. 1986-1991. Unpublished report. Califomia State University,
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Pike J L. Hays, and R. Zembal. 2001. The least BeU's vireos and soutiiwestem willow
flycatcheis in Prado Basin of tfie Santa Ana River watershed. California. Orangp County
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Colonel Richaixl G. Thompson (FWS-SDG-1597.5) 40
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* 4
' I
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REPLY TO
ATTENTION OF:
Officeof tiie Chief
Regulatory Branch
DEPARTMENT OF THE ARMY
LOS ANGELES OISTBICT, CORPS OP ENGINEERS
SAN WEGO FIELD OFHCE
16885 WEST BERNARDO mn/E, SUFTE SOOA
SAN OIEGO, CAUFORNIA 92127
May 15,2002
Calavera HiUs E, LLC and
Mr. Brian MilUch
2727Hoover Aventie
National Qty, CA 91950
Qty of Carlsbad
Mr. David Hauser
1635 Faraday Avenue
Carlsbad, CA 92008
Dear Messrs, MUidi and Hauser:
Enclosed you wUl find a signed copy of your Department of the Army Permit (FUe # 2001-
00215-RLK). Please retain fliis copy for your files.
Thank you for partidpating in our regulatory program. If you have any questions, please
contact Mr. RusseU L. Kaiser at (213) 452-3293.
Sincerdy,
Mark F. Sudol, D.Env.
Chief, Regulatory Branch
Endosures
\ . 0.1...
LOS i4NGEL£S DISTRICT
U.S. ARMY CORPS OF ENGINEERS
DEPARTMENT OF THE ARMY PERMIT
Permittee:
Pennit Number.
Issuing Office:
Calavera HiUs U, LLC and
Mr. Brian MilUch
2727 Hoover Avenue
National City, CA 91950
200100215-RLK
Los Angeles District
Qty of Carlsbad
Mr. David Hauser
1635 Faraday Avenue
Carlsbad, C A 92008
Note: The term "you" and its derivatives, as used in tiiis permit, means flie permittee or any
futuie transferee. The term "fliis office" refers to the appropriate district or division office of the
Corps of Engineers having jtuisdiction over flie pennitted activity or the appropriate offidal
acting tmder the authority of the commanding officer.
You are authorized to perform work in accordance with the terms and conditions specified bdow.
Project Location: The proposed project is located in the nortiieast quadrant of the City of
Carlsbad in San Diego County, CaUfomia.
Project Description: The project consists of fliree major components: (1) Constmction of up to
781 residential units as weU as associated infrastmcture, community fadUties and natural open
space within the Calavera HiUs Master Planned Commtmity; (2) Constmction of the extension
of CoUege Boulevard from its existing northern terminus wifliin the Calavera HUls Commimity
to its existing southem terminus just northerly of El Camino Real, as weU as the extension of
Caimon Road from its existing westem termintis at El Camino Real to its pressed intersection
with CoUege Boulevard; and (3) Constmction and operation of two flood control basins (Basins
BJB and BJ) witii a storage capadty of 49 acre-feet and 48 acre-feet, respectivdy. The berms
necessary for the flood control basins are integrated into the culverted roadway crossings
(Figure 1).
Project Authorization: You are autiiorized to discharge fiU in 0.70 acre of waters of the United
States (U5.), induding Calavera Creek, Aqua Hedionda Creek, Litfle Encinas Creek, and other
coimected unnamed tributary waters and/or wetlands to constmct the projert described above.
Of the total impacts on waters of the U.S., 0.64 acre would be permanait and 0.06 acre would be
temporary. Of the permanent impacts, 028 acre would occur on wetland waters and 036
would occur on non-wetland waters of tiie U.S. AU temporary impacts would occur on non-
wetiand waters of the U.S. The foUowing table sets fortti the spedfic activities and inpacts
associated with the proposed activity and Figure 4 identifies the waters of the VS. and flie
impact areas.
1 PROTECT IMPACTS ON WATERS OF T m? II.S.
Project
CjCTn-prmmt
Ripa:
Wood
dan
lanrf
Freshwater Marsh Cismoi
Alkali >
ltane
ilarsh
TO]
Wetlanc
rAL
IWaters
TOTAL
Non-WpHanH Watprs
Perm Temp Perm Temp Perm Temp Perm Temp Perm Ten^
Calaveia Hills
Phase n
0.1 0.1 0.2 0.0
Caimon Rd. 0.08 0.08 0.0 0.0
Pnllege Rraeh A 0.04 0.05 0.09 0.03 0.06
Tnllege Wpacli B 0.0 0.0
0.0 0.0
College / Camion 0.01 0.01 0.13 0.0
Detention
Basin «i
0.0 0.0
Trn-AT. 0.05 0.0 0.05 0.0 0.18 0.0 0.28 0 0.36 0.06
Permit Conditions.
General Conditions:
1. The time limit for completing the authorized activity ends on July 1,2004. If you find that
you need more time to complde the authorized activity, subnut your request for a time extension
to this office fOT consideration at least one month before the above date is reached.
2. You must maintain fhe activity authorized by fhis permit in good condition and in
conformance with fhe terms and conditions of this permit You are not reUeved of this
requirement if you abandon the permitted activity, although you may make a good faith transfer
to a third party in conpliance with General Condition 4 bdow. ^ould you wish to cease to
maintain the autiiorized activity or should you desire to abandon it without a good faith transfer,
you must obtain a modification from tiiis permit from fhis office, which may require restoration of
fhe area.
3. If you discover any previously unknown historic OT archeological remains whUe
accomplishing fhe activity authorized by this permit, you must irmnediatdy notify this office of
what you have foimd. We will initiate fhe Federal and state coordination required to determine if
the remains warrant a recovery effort or if fhe site is eUgible for listing in fhe National Register of
Historic Places.
4. If you seU fhe property associated with fhis permit, you must obtain fhe signature of fhe
new owner in the space provided and forward a copy of the permit to fhis office to vaUdate fhe
transfer of fhis authorization.
5. If a conditioned water quaUty certification has been issued ior your project, you must
comply wifh fhe conditions specified in the certification as special conditions to fhis permit
6. You must aUow representatives from fhis office to inspect fhe authorized activity at any
time deemed necessaiy to ensure that it is being or has been accomplished with flie terms and
conditions of your permit
Special Conditions:
1 Vrp-.rrm<:H~iirtinn Kpguirprtiimta:
1.1 Thirty days prior to flie discharge of fiU in waters of fhe U.S., induding weflands, fhe
Permittee shaU subnut for Corps approval a Pre-Construction Operations (CO) Plan. The Pre-CO
plan shaU indude:
1.1.1 Proposed construction timeline and sequendng.
1.1.2 Pre-constmction surveys defining project boundaries wifh respect to avoidance of
Section 404 Resources (e.g., waters of fhe U,S,, biological and cultural).
1.1.3 Sife plan delineating boimdaries for staging, fueling and storage areas. Slorage areas
shaU indude sites for spoU and borrow materials. Staging, fueUng and storage areas
shaU not be located wititin 100 feet of waters of the U.S.
1.1.4 Measures to be taken to prevent an impermitted discharge(s) of fiU.into Wafers of tiie
U.S. may indude use of sUt nets, hay bales and other Best Management Practices
(outside of Waters of fhe U.S.), induding use of emergency spUl kits.
1.1.5 Photographs documenting site conditions, induding work limits and resource exdusion
areas. Photographs shaU show demarcated (staked/roped) constmction areas, and
exdusion areas, induding waters of fhe U.S., cultural resources, and open space areas.
In addition, the Permittee shaU:
1,1.5.1 Retain a Corps approved biologist to monitor and insped aU on-site activities. The CO
Plan ahaU identify fhe biologist's name, address, phone number, emaU addiess and
experience/credentials. The biologist shaU review, oversee, monitor, and/or inspect:
1.1.5.1.1 Grading and site plans;
1.1.5.1.2 Installation of rope to demarcate constmction work and open space areas;
1.1.5.1.3 AU grading, excavation and ground (and non-ground) disturbance activities in (or
near) Waters of fhe U.S., and
1.1.5.1.4 Compliance of avoidance measures for open space areas.
1.1.5.1.5 FurthermOTe, fhe Corps approved biologist shaU:
1.1.5.1,5.1 Be empowered to halt constmction and contact Corps, Regulatory Projed Manager
if he/she beUeves the terms and conditions of ttie authorization are being violated,
wifh non-compliance reported to fhe Corps within one hour of detection; and
1.15.1.52 Implement and monitor fhe mitigation program.
1.1.5.2 Retain a Corps approved cultural resource specialist to monitor and inspert aU on-site
activities, near CA-SDI-9092, CA-SDI-9093/9094, CA-SDI-9615, CA-SDI-15069, CA-SDI-
5434, SA-SDI-5436, and Temp 5. The CO Plan shaU identify fhe cultural resovurce
spedalisfs name, address, phone number, emaU address and experience/credentials,
lhe cultural resource spedaUst shaU review, oversee, monitor, and/or inspect
1.1.52,1 AU activities, investigations, and reporting requirements for Section 106 Compliance
witii CA-SDI-9092, CA-SDI-9093/9094, CA-SDI-9615, CA-SDI-15069, CA-SDI-5434,
SA-SDI-5436, and Temp 5 sites. No work shaU be performed within a 100-foot
radius of CA-SDI-9092, CA-SDI-9093/9094, CA-SDI-9615, CA-SDI-15069, CA-SDI-
5434, SA-SDI-5436, and Temp 5 except as aUowed in Section 2.4. In addition, tihe
monitor shaU be onsite during aU grovmd disturbance activities.
1.1,5.2.2 Furthermore, fhe Corps approved cultural resource specialist shaU:
1.1.5.2.2.1 Be empowered to halt constmction and contad Corps, Regulatory Project Manager
if he/she beUeves fhe terms and conditions of the authorization are being violated,
wifh non-compUance reported to fhe Corps within one hour of detection; and
1.1.5.2.2.2 Implement and monitor tiie mitigation program, if warranted.
1.2 The Corps may conduct onsite fidd investigations prior to and during constmction
activities to inspect for compliance witih aU conditions Usted herein.
2 MifigaHan Reqwremtnitfi:
2.1 The Permittee shaU comply wifh tihe Biological Opinion (FWS-SDG-1597.4, dated March
14,2002; aU terms and conditions are non-discretionary, pp. 31-33).
2.2 The Permittee shaU post a Performance Bond (or bonds) for 120% of the antid5)ated
costs of tihe mitigation and monitoring associated wifh fhe projed.
2.2.1 The bonding company must appear on the Department of Treasury Circular 570,
Companies Holding Certfficates of Autihority as Acceptable Sureties on Federal Bonds
and Acceptable Reinsuring Companies. FOT a current list of Treasury-authorized
companies, write or caU tiie Surety Bond Branch, Financial Management Services,
Department of flie Treasury, Washington D.C. 20227; (202) 874-6850.
2.2.2 The performance bond(s) shaU be conditioned such that if fhe Permittee defaults on tihe
mitigation requirements stated in fhe special conditions herein, the bonding company
shaU assume aU responsibiUty for tihe mitigation requirements of fliis pemut
22,3 The performance bond(s) shaU be released only upon a detennination by flie Corps that
successful mitigation has been completed.
2.2.4 The Permitiree shaU submit a draft bond wifh an itemized costs Ust for flie nutigation
components relating to fhe initial phase of work (Calavera HUls Phase H, CoUege
Reaches B and C, detention basin BJB and Cannon Reach 3) to flie Corps for approval at
least five days prior to initiating waters/wetlands impact authorized by tiiis pennit A
second bond witii an itemized costs list for the mitigation components relating to fhe
second phase of work (CoUege Reach A and detention basin BJ) shaU be submitted at
least 60 days prior to commencing work on CoUege Reach A or detention basin BJ.
2.2.5 The Permittee shaU submit fhe final bond for tiie amount approved by tihe Corps for fhe
initial phase of work within 30 days of initiating waters/wetlands unpad autiiorized by
tiiis permit In flie event mitigation costs exceed or otherwise deviate from tihe amount
of the performance bond (120% of antidpated cost of mitigation and monitoring)
originaUy posted, tihe Pennittee shaU revise the perfonnance bond to reflect true cost
(based on tihe final Corps-approved mitigation and monitoring plan). The Permittee
shaU submit the final bond for the amount approved by tihe Corps for the second phase
of work at least 15 days prior to commencing work on CoUege Reach A or detention
basin BJ.
2.3 The Permittee shaU abide by fhe terms and conditions of the Mitigation GuideUnes &
Monitoring Requirements outiined in fhe Habitat Restoration and Monitoring Plan for the City
of Carlsbad Bridge & Thoroughfare Distiict No. 4, tiie Calavera Hills Project, and flie Detention
Basins Projed in Carlsbad, CaUfomia, dated April 3, 2002, as approved and revised by flie
Corps, and hereafter referred to as the "Plan" as foUows:
2.3.1 The Permittee shaU finalize fhe Plan within 90 days of issuance of fhis permit The Final
Plan shaU incorporate Corps comments on the draft as weU as fhe final plans and
specifications for each of fhe different mitigation sites.
2.32 The Permitiiee shaU estabUsh and maintain tihe open space conservation areas for projed
riparian mitigation areas associated wifh each of the two phases of impacts. The
Permittee shaU record conservation easements, which shaU run wifh the land, obUgating
the Permittee or their successor or assigns to maintain aU mitigation (creation,
enhancement and preservation) area as natural open space in perpettiity. The Permittee
shaU recdve wriften approval from tiie Corps for the easement language prior to it
being recorded. The Corps-approved conservation easement for fhe area underlying fhe
initial phase of mitigation shaU be submitted to Corps-approved redpient of fhe
easement no later than 90 days firom the date of issuance of fhe permit The form of
conservation easement for fhe area underlying fhe second phase of mitigation shaU be
approved by fhe Corps at least 30 days prior to tiie commencement of work on CoUege
Boulevard Reach A and detention basin BJ. The Corps-approved conservation easemait
for the area underlying fhe second phase of mitigation shaU be submitted to the Corps-
approved redpient of the easement prior to commendng work on CoUege Reach A or
detention basin BJ.
2.3.3 The Permittee shaU create 10.7 acres of vegetated riparian habitat, as presented in fhe
Plan. Of fhis total, 8.1 acres wUl consist of riparian woodland, 1.7 acre wfll consist of
riparian scrub, 0.7 acre of cismontane alkaU marsh, and 0-2 acre of non-wetland waters,
as described in fhe Habitat Restoration and Monitoring Plan for the City of
Carlsbad Bridge & Thorougjifare Distrid No. 4, the Calavera Hills Projed, and
fhe Detention Basins Projed in Carlsbad, Califomia, dated April 3,2002.
2.4 The Permittee shaU temporarily avoid work in areas near potentiaUy eUgible sites for listitng
under tiie National Register of Historic Places (NRHP), induduig CA-SDI-9092, CA-SDI-
9093/9094, CA-SDI-9615, CA-SDI-15069, CA-SDI-5434, SA-SDI-5436, and Temp 5, until fhe
Corps, in coordination wifh tihe State Historic Preservation Office, has complded the Section
106 process and a determination of findings is made. Unttt the process is complete, the
Permittee shall:
2.4.1 Place Exdusionary Fendng, five days prior to initiation of construction, around CA-
SDI-9092, CA-SDI-9093/9094, CA-SDI-9615, CA-SDI-15069, CA-SDI-5434, SA-SDI-5436,
and Temp 5. No work shaU be performed witiiin a 100-foot radius of CA-SDI-9092, CA-
SDI-9093/9094, CA-SDI-9615, CA-SDI-15069, CA-SDI-5434, SA-SDI-5436, and Temp 5.
2.4.2 Perform aU further investigations, studies and mitigation, as directed by fhe Corps, to
ddermine if site(s) is\(are) eUgible for Usting under fhe NRHP. The Permittee shaU
fund aU investigations required by tihe Corps. For reporting purposes, fhe Permittee
shaU prepare a Draft Mitigation Plan, which shaU be submitted for Corps review and
approval. FoUowing completion of the investigations, a Final Report shaU be prepared
by tiie Pennittee and submitted for Corps approval.
2.4.3 Request Corps release of the site(s), upon completian of fhe cultural resource
investigations. Again, no constmction work shaU be condurted witiiin fhe exdusion
area untU the Corps provides a letter indicating site compliance has been completed.
Once tiie findings of the evaluation have been determined, work efforts may be
permitted witii modffications and if only aU appropriate mitigation measures are
undertaken, per 36 CER 800,11.
2.4.4 Not perform any activities which may affect historic properties listed, or eUgible for
listing, in the NRHP is aufliorized, untU fhe District Engineer (DE) has compUed with
fhe provisions of 33 CFR Part 325, Appendbc C. The Pennittee must notify the DE if the
aufliorized activity may affect any historic properties Usted, determined to be eUgible
for Usting, or which tihe Permittee has reason to beUeve may be eUgible for listing on the
NRHP, and shaU not begin fhe activity untU nofified by fhe DE fhat fhe requirements of
fhe National Historic Preservation Act have been satisfied and tiiat fhe activity is
authorized.
2.4.5 Immediately suspend aU work in an area(s) where potential cultural resources are
discovered prior to or during constmction and cannot be avoided. Work wiU not
i^ume until fhe Corps re-authorizes projed construdion, per 36 CFR 800.11.
3 Post CcmstrniHon:
3.1 The Permittee shaU submit a "Post-Constmction Operations Report" to the Corps
within 30 days firom the date constmction is completed. The Post CO Report shaU indude:
3.1.1 A summary of projecf compUance witii fhe measures identffied above (induding
noncompliance and corrective actions taken to achieve compliance); and
3.1.2 As-bvult plans of the Calavera HiUs, Phase II, project development with a discussion of
any variances from fhe authorized Plan.
32 The Permittee shaU be responsible for mitigating any additional impads to waters of tihe
U.S. outside fhe authorized constmction footprints. Additional mitigation shaU be conducted
af a minimum ratio of 5:1, In the event that additional mitigation is required, fhe t3rpe of
mitigation shaU be determined by the Corps and may indude enhancement, restoration,
creation, or preservation.
3.3 The Permittee shaU submit morutoring reporte, per the Mitigation Guidelines and
Monitoring Requirements for fhe Plan (Condition No. 2.3 above) for mitigation efforts
to the Corps for a minimtun of five years and until such a time as the mitigation is
deemed successful by the Corps.
Further Inf ormation:
1. Congressional Authorities, You have been auttiorized to undertake the activity described
above pursuant to:
( ) Section 10 of ttie River and Harijor Act of 1899 (33 U.S.C 403).
(X) Section 404 of fhe Qean Water Art (33 U.S.C. 1344).
( ) Section 103 of fhe Marine Protection, Researdi and Sanctuaries Acf of 1972 (33
U3.C.1413).
2, Limits of fhis autihorization.
2.1 This permit does not obviate the need to obtain other Federal, state, or local authorizations
required by law.
2.2 This permit does not grant any property rights or exdusive privileges.
23 This pennit does not authorize any injury to fhe property or rights of others.
2.4 This pennit does not authorize interference wifh any existing or proposed Federal projed.
3, Limits of Federal Liabihty. In issuing fhis permit the Federal Govenunent does not assume
any UabiUty for fhe foUowing:
3.1 Damage to fhe permitted project or uses tiiereof as a result of other permitted or
unpermitted activities or from natural causes.
3.2 Damages to fhe permitted project or uses thereof as a result of current OT future activities
undertaken by or on bdialf of the United States in fhe pubUc interest
3.3 Damages to persons, property, or to ofher permitted or unpermitted activities or stmctures
caused by fhe activity autihorized by tihis permit
3.4 Design or constmction defidendes associated with fhe pennitted WOTIC
3.5 Damage claims associated with any future modification, suspension, or revocation of this
permit.
4. Reliance on AppUcant's Data. The determination of fhis office tihat issuance of fhis pennit is
not confrary to fhe pubUc interest was made in reliance on fhe information you provided.
5. Reevaluation of Permit Decision. This office rnay reevaluate its decision on this perniit at any
time fhe drcumstances warrant Circumstances fhat could require a reevaluation indude, but are
not Umited to, tihe foUowing:
5.1 You faU to comply wdth tiie trans and conditions of tihis permit
52 The infbrmation provided by you in support of your peimit appUcation proves to have been
false, incomplete, OT inaccurate (See 4 above).
53 Significant new infonnation surfaces which this office did not consider in reaching the
original pubUc interest dedsion.
Such a reevaluation may result in a determination fhaf it is appropriate to use the suspension,
modification, and revocation procedures contained in 33 CFR 325.7 or enforcement procedures
such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures
provide for tiie issuance of an adminisfrative order requiring you to comply wifli fhe terms and
conditions of your permit and for tihe initiation of legal action where appropriate. You wUl be
required to pay fOT any corrective measure ordered by this office, and if you faU to comply with
such directive, this office may in certain situations (such as those specified in 33 CFR 209.170)
accomplish fhe corrective measiues by conttact or olherwise and biU you for fhe cost
6, Extensions, General condition 1 establishes a time limit for fhe completion of fhe activity
autiiorized by tihis pennit Unless there are drcumstances requiring dther a prompt completion
of flie authorized activity or a reevaluation of the pubUc interest decision, the Corps wiU normaUy
give you favorable consideration to a request for an extension of fhis time Umit
Your signature below, as permittee, indicates fhat you accept and agree to conply with the tenns
and conditions of fhis permit
PERMTITEE fS^^ Xt'^fC/CZ/Sf^
PERMITTEE MoS£^ DATE
pepdry eery t^6fA/£:^<-
This permit becomes effective when tihe Federal official, designated to art for fhe Secretary of fhe
Army, has signed bdow.
Mark F. Sudol, D.Eilv. DATE
Chief, Regulatory Brandi
When tiie structures or work authorized by this permit are stiU in existence at fhe time tihe
property is fransferred, tihe terms and conditions of this permit wiU continue to be binding on the
new owner(s) of the property. To vaUdate fhe transfer of this permit and tiie assodated liabiUbLes
associated wiih compliance with its terms and conditions, have tihe transferee sign and date
bdow.
TRANSFEREE DATE
LOS ANGELES DISTRICT
U.S. ARMY CORPS OF ENGINEERS
CERTIFICATION OF COMFLLANCE WITH
DEPARTMENT OF THE ARMY PERMIT
Permit Number 2001-00215-RLK
Name of Permittee: Claavera HiUs H, LLC
Date of Issuance:
Upon completion of flie activity autiiorized by this pennit, sign tiiis certification and retum
it to the foUowing address:
Regulatory Brandi - Los Angeles Distrirt Office
ATTN: CESPLCO-R-2001-00215-RLK
P.O. Box 532711
Los Angdes, CaUfomia 90053-2325
Please note ttiat your pennitted activity is subjert to a compliance inspection by an Army
Corps of Engineers representative. If you fafl to comply with fhis permit you may be subjert to
permit suspension, modification, or revocation.
I hereby certify that tiie work authorized by fhe above referenced pennit has been
completed in accordance with tihe tmns and conditions of said pennit
Signature of Permittee Date
Signature of Permittee Date
10
PROPn^Fn PRaiFCT
.STATP OF CALIFORNIA-THE RESOURCF.'? AGFNCY GRAY DAVIS Governor
DEPARTMENT OF FISH AND GAME
South Coast Region
4949 Viewridge Avenue
San Diego, Calilbmia 92123
(858)467-4201 -
FAX (858) 467-4235 IKki
June 03,2002 POWER
Calavera Hills n, LLC
Attn: Brian Milich
2727 Hoover Avenue
National City, CA 91950
Dear Mr. MUich:
Enclosed is Sfreambed Alteration Agreement R5-2001-0007 that authorizes work onthe
Calavera Ifills n projert unpacting Calavera and Agua Hedionda Creeks in San Di^o County.
This action is authorized under Section 1600 of the Fish and Game Code and has been approved
by the CaUfomia Department of Fish and Game. Pursuant to the requirements of the CaMonaa
Environmental (^ualityyArt/CEQA), the Department filed a Notice of Determination (NOD) on
the projert on ^ /05/oZ - Under CEQA regulations, the projert has a 30-day
statute of Umitations on court challenges of the Department's approval under C^QA.
The Department beUeves that the projert fiiUy meets the requirements of the Fish and
Game Code and CEQA. However, if court chaUenges on the NOD are received during the 30-
day period, th«i an additional review or even modification ofthe projert may be required. If no
comments are received during the 30-day period, then any subsequent comments need not be
responded to. This infonnation is provided to you so that if you choose to undertake the projert
prior to the close ofthe 30-day period, you do so with the knowledge that additional artions may
be required based on the results of any court challenges that are filed during that poiod.
Please contart Tamara Spear at (858) 467-4223 if you have any questions regarding the
Sfreambed Alteration Agreement.
Sincerely,
CF. Ritysbrook
Re^onai Manager
Enclosure
cc: Tamara Spear
CALIFORNIA DEPARTMENT OF FISH AND GAME
4949 Viewridge Avenue
San Dlego, Califomia 92123
Notification R5-2001-0007
AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION
THIS AGREEMENT, entered Into between ttie State of Califomia, Department of Fish and
Game, hereinafter called the Department, and Mr. David Hauser. representing Citv of Carisbad.
1635 Faradav Avenue. Carlsbad. CA 92008-7314 and Mr. Brian Milich. representlno Calavera
Hills H. LLC. 2727 Hoover Avenue. National Citv. CA 91950 State of California, hereinafter
called the Operators, is as follows:
VWEREAS, pursuant to Section 1601 of Califomia Fish and Game Code, ttie Operator on ttie
5!l_day of Januarv. 2001. notified ttie Department ttiat tiiey intend to divert or obstmrt the
natural flow of, or change ttie bed. channel, or bank of, or use material from tiie streambed(s) of,
tiie following waterfs): unnamed tributaries to Calavera and Agua Hedionda Creek. Uttle
Encinas Creek. Calavera Creek and Agua Hedionda Creek, tributaries to Aoua Hedionda
Lagoon. San Diego County, Califomia, Sectionj__Towiship_ Range_.
WHEREAS, tiie Department (represented by Tamara Spear tiirough a site visit on the
15i day of Febmarv. 2001^ has determined tiiat sudi operations may substantially adversely
affed those existing fish and wildlife resources within the streambed of unnamed tributaries to
Calavera and Agua Hedionda Creek. Little Encinas Creek Calavera Creek and Aoua
Hedionda Creek, tributaries to Agua Hedionda Laaoon. spedfically identified as follows:
Birds: Califomia gnatcatcher (PoliopGIa califonriica califomica). least Bell's vireo (VirBo bellii'
pusillus). soutiiwestem willow flvcatcher {Empidonax traillii extimusY Cooper's hawk (Accipiter
coooeri). white-tailed kite (Elanus leucurus). northem harier (Circus cvaneusY sharo-shlnned
hawk (Accipiterstriatus). red-tailed hawk (Buteo fema/cens/s). looaeriiead shrike (Lanius
ludovicianus). Califomia ouail (Callioepla califomica). mouming dove (Zenaida macroura).
Califomia homed lark (Eremophila altjestris actia). coastal cadus wren (Campylorhynchus
bmnneicapillus couesi). Nuttall's woodpecker (Picoides nuttaim. black Phoebe (Savomis
nigricans), scmb iav (Aphelocoma coerulescens). American crow (Corvus brachyrhynchos).
common raven (Con/us corax). Anna's hurnmingbird (Calypte anna). Bewick's wren
(Thn/omanes bewicldi). northem moddngbird (Mimus polvalottos). vellow-mmoed warbler
(Dendroica comnata). spotted towhee (Pipilo maculatus). Califomia towhee fP/p//o crissalis).
yellow-breasted chat (Icteria virens). Bell's sage sparrow (Amohisoiza belli belliL blue grosbeak
(Guiraca caerulea). tri-colored blackbird (Aaelaius tricoloi): Amphibians: Pacific tree frog (Hvla
reailla): Reptiles: San Dieoo homed lizard (Phrynosoma carinatum blainvillei). westem fence
lizard (Sceloporous occidentalis). Belding's orangethroat whiptail (Cnemidophorus hvpervthrus
beldingi), coast patch-nosed snake (Salvadora hexalepis vimultea), red diamond rattiesnake
(Crotalus exsul): Mammals: San Diego desert woodrat (Neotoma lepida intermedia), covote
(Canis latrans). desert cottontail (Svivilagus audubonii). San Diego black-tailed jack rabbit
(Lepus californicus bennettii): Plants: ttiread-leaved brodiaea (Brodiaea mfoiia). Nuttall's scmb
oak (Quercus dumosa). Palmer's orapplinghook (Harpaaonella oalmeri var. palmeri),
souttTwestem spinv msh (Juncus acutus). ashy spike-moss (Setaainella cinerascens). California
adolphia (Adolphia califomica). westem dichondra (Dichondra oca'dentalis): indudino tiie
riparian woodland/scmb. riparian forest freshwater marsh, dsmontane alkali marsh, seasonal
cismontane alkali marsh and surrounding native grassland, coastal sage scmb, chamise
chaparral, southem mixed chaparral, eucalyptus woodland and non-native grassland which
provide habitat for such spedes in the area.
THEREFORE, the Department hereby proposes measures to proted fish and wildlife
resources during the Operator's woric The Operator hereby agrees to accept the follovwng
measures/conditions as part oftiie proposed woric.
Page 1 of 6
STREAMBED ALTERATION AGREEMENT #R5-2001-0007
If the Operator's woric changes from tiiat stated in ttie notification specified above, this
Agreement is no longer vaiid and a new notification shall be submitted to the Department of Fish
and Game. Failure to comply witii the provisions of this Agreement and with other pertinent
code sedions, induding but not limited to Fish and Game Code Sections 5650,5652,5937, and
5948, may result in prosecution.
Nothing in this Agreement authorizes the Operator to trespass on any land or property,
nor does it relieve the Operator of responsibility for compliance witii applicable federal, state, or
local laws or ordinances. A consummated Agreement does not constitute Department of Fish
and Game endorsement of the proposed operation, or assure tiie Department's concurrence
with permits required from otiier agendes.
This Agreement becomes effedive the date of Departinenfs signatajre and terminates Mav 15.
2007 for proied constmdion only. This Agreement shall remain in effed for tiiat time necessarv
to satisfy the terms/conditions of this Agreement
1. The follovdng provisions constitute tiie limit of activities agreed to and resolved by tills
Agreement The signing of this Agreement does not imply that the Operator is preduded from
doing other adivities at the site. However, activities not specificaily agreed to and resolved by
this Agreement shall be subjed to separate notification pursuant to Fish and Game Code
Sections 1600 et seq.
2. The Operator proposes to alter the streambed of unnamed tributaries to Calavera and
Aoua Hedionda Creek. Little Encinas Creek. Calavera Creek and Agua Hedionda Creek,
tributaries to Agua Hedionda Lagoon, to accommodate tiie construction of the Calavera Hills.
II Development Projed and tiie constmction of College Boulevard Reaches A, B and C, Cannon
Road Reach 3, and Detention Basins BJ and BJB. The projert is bounded by the existing
northeriy villages of Calavera Hills on tiie north, and the El Camino Real/College Boulevard
intersection on tiie soutii, within ttie city of Carisbad, San Diego County. The projed impads
2.87 acres of streambed.
3. The agreed woric indudes activities assodated vs^th No. 2 above. The projed area is located
within the sfreambed of unnamed tributaries to Calavera and Agua Hedionda Creek. Little
Encinas Creek. Calavera Creek and Agua Hedionda Creek, tributaries to Agua Hedionda
Lagoon. San Diego County. Specific woric areas and mitigation measures are described on/in
the plans and documents submitted by tiie Operator, including a "Biological Technical Report for
the Calavera Hill Master Plan Phase II. Bridge and Thoroughfare Distrid. and Detention Basin",
prepared by RECON. Environmental Consultants, dated Mav 10.2000: "Final Habitat
Restoration and Monitoring Plan for the Citv of Carisbad Bridge & Thoroughfare Distrid No. 4.
the Caiavera Hills Proied. and the Detention Basins Proied in Carisbad. CA". prepared bv
RECON Environmental Consultants, dated April 3,2002: a "Final EIR for tiie Calavera Hills
Master Plan Phase II, Bridge and Thoroughfare Distrid No. 4. & Detention Basins", prepared bv
RECON Environmental Consultants, dated November 2001: a "Biological Assessment for tiie
Calavera Hills Master Plan Phase II & Bridge and Thoroughfare Distrid no. 4 & Detention Basin
Project Citv of Carisbad. CA'. prepared bv RECON Environmental Consultants, dated August
21. 2000: and shall be implemented as proposed unless direded differentiy by this agreement
4. The Operator shall not impad more than 2.87 acres of jurisdictional streambed comprised of
2.42 acres riparian woodland/scmb, 0.18 acre dsmontane alkali marsh, 0.05 freshwater marsh,
and 0.24 acre unvegetated sf eambed, impacts to riparian woodland/ scmb shall be mitigated
at a 4:1 ratio, dsmontane alkali marsh and freshwater marsh shall be mitigated at a 3:1 ratio and
unvegetated waters at 1:1 for a total mitigation acreage requirement of 10.61 acres (9.68 riparian
woodland/scmb, 0.54 cismontane alkali marsh, 0.15 freshwater marsh and 0,24 unvegetated
streambed). All mitigation shall be in-kind with the exception of unvegetated stieambed. All
mitigation shall occur on-site at two locations. One mitigation area is upstream along Calavera
Creek and tiie other is within detention basin "BJ" along Little Endnas Creek. The Operator has
assured the Department that detention basin "BJ" vyill not require maintenance activities. Note: A
Page 2 of 6
STREAMBED ALTERATION AGREEMENT #R5-2001-0007
20-foot distance out from flie basin inlet will require maintenance to keep obstmctions away from
tiie culvert, but this area is not counted as mitigation. Any impads generated beyond tiiose
described within this agreement shall be mitigated in-kind at a 5:1 ratio.
5. The Operator shall submit a Final Revegetation. Mitigation and Monitoring Plan for the 10.61
acres of wetiand habitat restoration, creation and enhancement areas on-site. The plan shall
include a description of the proposed numbers, container sizes and planting location by spedes.
monitoring activities (locations, techniques, scheduling, etc.), maintenance operations with
emphasis on watering metiiods and schedules; the removal of invasive plant spedes. area
treated, techniques to be used, and schedule and success criteria for conti'olling invasive plants;
and any/all ofher references to revegetation and restoration activities spedfied by ttiis agreemerit
The Operator shall receive Department approval of the pian prior to project
initiation/impacts.
All revegetation (7,7 acres) of mitigation for Phase 1 impads (Calavera Hills development, college
Blvd. Reaches B and C, Cannon Road Readi 3, Detention Basin BJB) shall be installed no later
ttian November 15.2004. All revegetation (3,0 acres) of mitigation for Phase 2 impacts (College
Boulevard Reach A, Detention Basin BJ) shall be installed no laterthan May 15,2007.
6. The Operator shall not remove vegetation within the stream from March 15 to September 1 to
avoid impacts to nesting birds.
7. The Operator shall have a qualified biologist onsite daily during any impacts to vegetation for
the purpose of monitoring and enfordng conditions of this agreement
8. No equipment shall be operated in ponded or flowing areas except for adivities authorized by
this agreement .
9. Disturbance or removal of vegetation shall not exceed the limits approved by the Department.
The disturbed portions of any sfream channel shall be restored. Restoration shall indude the
revegetation of stripped or exposed areas with vegetation native to the area.
10. Installation of bridges, culverts, or other stmdures shall be such tiiat waterflow is not
impaired, except for activity authorized by this agreement Bottoms of temporaty culverts shall be
placed at sfream channel grade; bottoms of pennanent culverts shall be placed at or below
stream channel grade.
11. Preparation shall be made so that mnoff from steep, erodible surfaces will be diverted into
stable areas with littie erosion potential. Frequent water checks shall be placed on dirt roads, cat
tracks, or other work trails to contrd erosion.
12. Water containing mud, silt or otiier pollutants from aggregate washing or otiier activities shall
not be allowed to enter a lake or flowing sfream or placed in iocations that may be subjeded to
high storm flows.
13. Stmctures and associated materials not designed to wittistand high seasonal flows shall be
removed to areas above the high water mark before such flows occur.
14. The perimeter of the woric site shall be adequately flagged to prevent damage to adjacent
riparian habitat.
15. Staging/storage areas for equipment and materials shall be located outside of the stream.
16. The Operator shall comply witii all litter and pollution laws. All contradors, subconti^dors
and employees shall also obey these laws and it shall be tiie responsibility of tiie operator to
ensure compliance.
17. If a sfream's low flow channel, bed or banks have been altered, tiiese shall be retumed as
Page 3 of 6
STREAMBED ALTERATION AGREEMENT #R5-2001-0007
neariy as possible to tiieir original conflguration and width, wtiiout creating future erosion
problems, excepting the2.87 acre of stieambed impads assodated with condition No. 2 above.
18. Access to tiie woric site shall be via existing roads and access ramps.
19. All mitigation planting shall have a minimum of 100% survival tiie flrst year and 80% survival
tiiereafter and/or shall attain 75% cover after 3 years and 90% cover after 5 years for the life of
the project If tiie sun/ival and cover requirements have not been met, ttie Operator is
responsible for replacement planting to achieve these requirements. Replacement plants shall be
monitored with tiie same sur\dval and growtii requirements.
20. All mitigation planting shall be done between Odober 1 and April 30 to take advantage of the
winter rainy season.
21. An annual report shall be submitted to tiie Deparbnent by Januaty 1 (following the first
growing season) of each year for 5 years after planting. This report shall indude the survival,
percent cover, and height of botii free and shmb spedes. The number by spedes of plants
replaced, an overview oftiie revegetation effort, and the method used to assess these
parameters shall also be induded. Photos from designated photo stations shall be induded.
22. A security in ttie fomn of an inrevocable letter of credit for the amount of 120% of ttie
complete on-site restoration shall be submitted to the Department priorto initiation of constmction
adivities. This amount shall be based on a cost estimate which shall be submitted to the
Department for approval vMthin 30 days of signing this Agreement The security shall be
approved by the Department's legal advisors priorto its exec^ition, and shall allow the
Department at its sole discretion to recover funds immediately If the Department detenmines there
has been a default The legal advisors can be contaded at (916)654-3821.
In lieu of the security described above, the Operator may provide written evidence to the
Departinenfs satisfaction that security in the form of a perfonmance bond has been provided to
the U.S. Army Corps of Engineers for tiie same restoration mitigation plan, within 30 day of
signing this agreement
23. A biological conservation easement shall be recorded on the riparian mitigation areas of the
projed to proted flsh and wildlife resources in perpetuity. The easement shall be in favor of the
Center for Lands Management, the Department or the Department's designated agent and shall
be recorded within one year of signing this agreement, or as extended by the Departinent The
form and content of the easement shall be approved by ttie Department's legal advisors prior to
its execution.
24. All terms and conditions under tiie federal Biological Opinion No. 1-6-01-F-1597 and Army
Corps permit No.200100215-SKB shaH be enforceable by the Department under this agreement
24. Spoil sites shall not be located within a sfream, where spoil could be washed back into a
stream/lake, or cover aquatic or riparian vegetation.
25. Raw cement/concrete or washings thereof, asphalt, paint or other coating material, oil or
other petiroleum products, or any otiier substances which could be hazardous to aquatic life,
resulting from projed related adivities. shall be prevented from contaminating Uie soii and/or
entering the waters of tiie state. These materials, placed within or where they may enter a
sfream/lake, by Operator or any party woricing under contrad, or with the permission of the
Operator, shall be renioved Immediately.
26. No debris, soil, siit, sand, baric, slash, sawdust, mbbish, cement or concrete or washings
ttiereof, oil or pefroleum products or ottier organic or earthen material from any consfrudion. or
assodated activity of whatever nature shall be allowed to enter into or placed where it may be
washed by rainfall or mnoff into, waters of tiie State. When operations are completed, any
excess materials or debris shall be removed from tiie woric area. No mbbish shall be deposited
wittiin 150 feet of the high water marie of any sfream or lake.
Page 4 of 6
STREAMBED /U-TEiRATiON AGREEMENT #R5-2001-0007
27. No equipment maintenance shall be done within or near any stream channel where
pefroleum produds or otiier pollutants from the equipment may enter these areas under any
flow,
28. The Operator shall provide a copy ofthis Agreement to all contractors, subcontractors,
and the Operator's project supervisors. Copies of the Agreement shall be readily available
at work sites at all times during periods of active work and must be presented to any
Department personnel, or personnel from another agency upon demand.
29. The Department reserves the right to enter tiie projed site at any time to ensure compliance
with terms/conditions of this Agreement
30. The Operator shall notity the Deparbnent in writing, at least five (5) days prior to initiation
of construction (project) activities and at least five (5) days prior to compietion of
construction (project) activities. Notification shall be sent to tiie Departnnent at 4949 Viewridge
Avenue, San Diego, CA 92123 Atfri: Tamara A. Spear
31. It is understood the Department has entered into this Stieambed Alteration Agreement for
purposes of establishing protedive featijres for fish and wildlife. The dedsion to proceed with the
projed is the sole responsibility of ttie Operator, and is not required by tills agreement It is
further agreed ali liability and/or incurred cost related to or arising out of the Operator's
project and the fish and wildlife protective conditions ofthis agreement, remain the sole
responsibility of the Operator. The Operator agrees to hold harmless tiie State of Califomia
and tiie Department of Fish and Game against any related daim made by any party or parties for
personal injury or any other damages.
32. The Operator shall request an extension of this agreement prior to its termination. Extensions
may be granted for up to 12 months from the date of termination of tiie agreement and are
subjed to Departmental approval. The extension request and fees shall be submitted to the
Department's Region 5 offlce at tiie above address. If tiie Operator fails to request the extension
prior to the agreement's termination, tiien tiie Operator shall submit a new notiflcation with fees
and required infomiation to the Departinent Any adivities conduded under an expired
agreement are a violation of Fish and Game Code Sedion 1600 et seq.
33. The Department reserves tiie right to suspend or cancel this Agreement for other reasons,
including but not limited to tiie foilowing:
a. The Department detenmines that the infomiation provided by tiie Operator in support of the
Notification/Agreement is incomplete or inaccurate;
b. The Department obtains new infonnation tiiat was not known to "it in preparing the terms and
conditions of tiie Agreement;
c. The projed or projed adivities as described in the Notification/Agreement have changed;
d. The conditions affecting fish and wildlife resources change orthe Deparbnent determines that
projed adivities will result in a substantial adverse effed on the environment
34. Before any suspension or cancellation of the Agreement, the Department will notity the
Operator in writing of the circumstances which the Departinent believes wanant suspension or
cancellation. The Operator will have seven (7) woricing days from tiie date of receipt of this
notification to respond in writing to tiie circumstances described in tiie Departinenfs notification.
During ttie seven (7) day response period, ttie Operator shall immediately cease any projed
adivities which tiie Department specified in its notification. The Operator shall not continue the
spedfied adivities until that time when the Department notifies tiie Operator in writing that
adequate methods and/or measures have been identifled and agreed upon to mitigate or
eliminate tiie significant adverse effed.
Page 5 of 6
CONCURRENCE
(City of Carisbad)
STREAMBED ALTERATION AGREEMENT #R5-2001-0007
Califomia Dept of Fish and Game
(signature)
Mr. David Hauser
OIL.
Tdate)
(titte)
fCalavera Hillsll^LC),
(signature)
Mr. Brian Milich
(titie)
(signatme) (d^te)'
CF. Ravsbrook. Regional Manager
(titie)
Page 6 of 6