The URL can be used to link to this page

Home My WebLink AboutFish and WildlifeDocuSign Envelope ID: E5888501-7086-4529-9084-12EDBAB46913 U.S. FISH AND WILDLIFE SERVICE Carlsbad Fish and Wildlife Office 2177 Salk Avenue, Suite 250 Carlsbad, California 92008 In Reply Refer to: FWS/CDFW-23-0072195 _ CEQA-SD CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE South Coast Region 3883 Ruffin Road San Diego, California 92123 April 27, 2023 Sent Electronically Dai Hoang Development Services Department City of Chula Vista 276 Fourth Avenue Building C Chula Vista, California 91910 dhoang@chulavistaca.gov Subject: Nirvana Business Park Draft Mitigated Negative Declaration Dear Dai Hoang: The U.S. Fish and Wildlife Service (Service) and California Department of Fish and Wildlife (Department), collectively referred to as the Wildlife Agencies, have reviewed the draft Mitigated Negative Declaration (MND) and associated documents for the proposed Nirvana Business Park (Project) received on March 29, 2023. The Project details referenced here are based on information provided in those documents and through prior meetings and correspondence between the Wildlife Agencies, City of Chula Vista (City), and representatives of VWP-OP Nirvana Owner, Limited Liability Corporation (Project proponent), from June 2022 to present. The primary concern and mandate of the Service is the protection of fish and wildlife resources and their habitats. The Service has legal responsibility for the welfare of migratory birds, anadromous fish, and threatened and endangered animals and plants occurring in the United States. The Service is also responsible for administering the Federal Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq.), including habitat conservation plans (HCP) developed under section IO(a)(l)(B) of the Act. The Department is a Trustee Agency with jurisdiction over natural resources affected by the project [California Environmental Quality Act (CEQA) Guidelines§ 15386] and is a Responsible Agency under CEQA Guidelines Section 15381 over those aspects of the proposed project that come under the purview of the California Endangered Species Act (CESA; Fish and Game Code §2050 et seq.) and Fish and Game Code Section 1600 et seq. The Department also administers the Natural Community Conservation Planning (NCCP) Program, a California regional habitat conservation planning program. The City participates in the NCCP and HCP programs by implementing the approved Chula Vista Multiple Species Conservation Program (MSCP) Subarea Plan (SAP). Letter 3 L3-1 DocuSign Envelope ID: E58BB501-70B6-4529-9084-12EDBAB46913 Dai Hoang (FWS/CDFW-23-0072195_CEQA-SD) 2 The 13.31-acre Project site is in the City of Chula Vista, bordered by Main Street just north of the Otay River Valley, with future public-right-of-way access via Nirvana Avenue. The Project will develop the entire site, which is designated as Development Areas outside the Covered Projects in the Chula Vista SAP. According to the Biological Technical Report (BTR), an additional 1.13 acres surrounding the Project site will be impacted by off-site grading for driveway access and creation of a retaining wall for slope stabilization. This includes two small off-site areas totaling 0.15 acre that will undergo riprap modifications to address anticipated increases in runoff velocities. These two small areas are just south of Main Street and along the Otay River border and are designated as 100 Percent Conservation Area in the Chula Vista SAP. In total, 14.44 acres will be impacted by the Project. The proposed Project is subject to the Habitat Loss Incidental Take Ordinance (HLIT) because the impacts are greater than 1 acre and there are impacts to sensitive biological resources. The HLIT requires specific biological studies and both habitat-based and species-specific mitigation to offset impacts to sensitive resources addressed in the Chula Vista SAP. There are also offsite impacts in l 00 Percent Conservation Areas in the Chula Vista SAP. The Project will directly impact maritime succulent scrub (MSS), which is undisturbed upland habitat that is classified as Tier I vegetation in the Chula Vista SAP. The Project will also directly impact two unvegetated streams onsite, as well as offsite non-wetland riparian habitat within the Otay Ranch Preserve (Preserve). The impacts to these areas include tamarisk scrub, which is designated as Disturbed Wetland habitat in the Chula Vista SAP. According to the BTR, the Project will directly impact 13.53 acres of MSS, 0.09 acre of unvegetated stream, and 0.37 acre of tamarisk scrub. The Project will also impact all 500 individual San Diego ambrosia [Ambrosia pumila; federally Threatened; California Rare Plant Rank (CRPR) 1 B. l] onsite. The BTR outlines Chula Vista SAP requirements for Equivalency Findings for Narrow Endemic Species to address the proposed impacts to San Diego ambrosia. The City has proposed a Biologically Superior Option to onsite preservation to offset the impacts to San Diego ambrosia. Further, purchase of credits at an established and approved mitigation bank is proposed to offset the Project impacts to wetlands. Per the BTR, the Project site contains other rare plant species including singlewhorl burrobrush [Ambrosia monogyra (CRPR 2B.2)], California adolphia [Adolphia californica (CRPR 2B.l )], San Diego barrel cactus [Ferocactus viridescens (CRPR 2B.1); MSCP Covered species], ashy spike-moss [Selaginella cinerascens (CRPR 4.1)], and San Diego County viguiera [Viguiera laciniata (CRPR 4.3)]. The following special-status wildlife species were also observed on the Project site: wrentit (Chamaeafasciata; Federal Bird of Conservation Concern), Cooper's hawk (Accipiter cooperii; Federal Bird of Conservation Concern; California Watch List; MSCP Covered Species), and least Bell's vireo (Vireo bellii pusillus; federally Endangered; CESA Endangered; MSCP Covered Species). Through pre-CEQA consultation, the Wildlife Agencies have concurred on appropriate mitigation for the Project, which includes a combination of restoration, enhancement, and funding for the City's Preserve. The Nirvana Conceptual Mitigation Plan (CMP), received via email on September 16, 2022, identifies three restoration sites to provide compensatory mitigation at a minimum of 1: 1 ratio for MSS, and 2: 1 ratio for San Diego ambrosia as L3-1cont. L3-2 L3-3 L3-4 DocuSign Envelope ID: E58B8501-70B6-4529-9084-12EDBAB46913 Dai Hoang (FWS/CDFW-23-0072195_CEQA-SD) 3 referenced in section 5.4.2 of the BTR. These sites consist of a mix of non-native grassland or heavily disturbed scrub that have been identified for restoration within the Otay Ranch Preserve near Salt Creek. These sites are currently managed by the Otay Ranch Preserve Owner Manager. The Wildlife Agencies offer the following comments and recommendations to assist the City in avoiding, minimizing, and adequately mitigating Project-related impacts to biological resources and to ensure the Project is consistent with the Chula Vista SAP. 1.The Wildlife Agencies have reviewed, commented, and concurred on the Nirvana Conceptual Mitigation Plan (CMP) received via email on September 16, 2022. Our concurrence was predicated on our review and approval of any changes or updates to this plan prior to Project activities as well as the following plans listed in the BTR: Habitat Management and Monitoring Plan; Resource Salvage Plan; and the 7-year Restoration, Maintenance, and Monitoring Plan. 2.We recommend that the MND be amended to reflect both onsite and offsite Project impacts consistent with the BTR and to identify final mitigation acreages once the offsite mitigation restoration plan is finalized. The Wildlife Agencies request that the City memorialize the concurred upon mitigation by including more details characterizing the quality and location of the three restoration sites, and/or including the draft Nirvana Conceptual Mitigation Plan as an enclosure to this MND. The final Mitigation Plan should be provided to the Wildlife Agencies for review and concurrence. 3.The BTR Section 5.2.2 states that "14 impacted species [will be translocated] to the mitigation site per the request of CDFW." The Wildlife Agencies are aware of the request to translocate San Diego ambrosia, San Diego barrel cactus, and other onsite succulents. We recommend the final Resource Salvage Plan include the list of other species being translocated. 4.The BTR states that least Bell's vireo was observed during focused surveys for the coastal California gnatcatcher in 2021 and in habitat surveys in 2007. Reports for both surveys conclude that there is low potential and low suitability habitat for vireo nesting. However, vireo along Otay River have regularly utilized tamarisk as nesting habitat. We agree with mitigation measures (MM-5) to conduct focused nesting surveys on the project site, specifically in the riparian zone where tamarisk is abundant, to address the potential for the Project to impact nesting vireo habitat. The following comments (5, 6, 7, and 8) are specific to the Department: 5.Crotch's bumble bee (Bombus crotchii; CESA candidate) and its habitat may be potentially impacted by the Project as an occurrence was identified approximately 1.7 miles from the Project site. Currently, Crotch's bumble bee is a candidate under the CESA and is not covered by the Chula Vista MSCP SAP. The Department recommends that a qualified biologist conduct surveys for this candidate species within L3-4cont. L3-5 L3-6 L3-7 L3-8 L3-9 DocuSign Envelope ID: E58BB501-70B6-4529-9084-12EDBAB46913 Dai Hoang (FWS/CDFW-23-0072195_CEQA-SD) 4 the Project area during the bumble bee's flight period (March 1st through mid-October). Once Project activities begin, we recommend a qualified biologist monitor potential nest sites and floral resources for Crotch's bumble bee and record any observations using photographs and GPS points to report to the California Natural Diversity Database (CNDDB). If the species is detected and take may occur, the qualified biologist shall notify the Department immediately to avoid take and ensure compliance with CESA. 6.The Department has regulatory authority over activities in streams and/or lakes that will divert or obstruct the natural flow, or change the bed, channel, or bank (which may include associated riparian resources) of any river, stream, or lake or use material from a river, stream, or lake. For any such activities, the Project applicant (or "entity") must provide written notification to the Department pursuant to section 1600 et seq. of the Fish and Game Code. Based on this notification and other information, the Department determines whether a Lake and Streambed Alteration Agreement (LSAA) with the applicant is required prior to conducting the proposed activities. The Department's issuance of a LSAA for a project that is subject to CEQA will require CEQA compliance actions by the Department as a Responsible Agency. The Department as a Responsible Agency under CEQA may consider the City's MND for the project. To minimize additional requirements by the Department pursuant to section 1600 et seq.and/or under CEQA, the City's document should fully identify the potential impacts to any stream or riparian resources and provide adequate avoidance, mitigation, monitoring, and reporting commitments for issuance of the LSAA. Whether an LSAA is required to satisfy the requirements of section 1600 et seq. can only be determined at the time a formal Notification package is submitted to the Department. Given the design elements of the proposed Project, we strongly encourage the City to consider submitting a streambed notification package to the Lake and Streambed Alteration Program. 7.CEQA requires that information developed in environmental impact reports and negative declarations be incorporated into a database which may be used to make subsequent or supplemental environmental determinations [Pub. Resources Code, § 21003, subd. (e)]. Accordingly, please report any special status species and natural communities detected during Project surveys to the CNDDB. The CNNDB field survey form can be found online at Submitting Data to the CNDDB (ca.gov).1 8.The Project, as proposed, would have an impact on fish and/or wildlife, and assessment of filing fees is necessary. Fees are payable upon filing of the Notice of Determination by the Lead Agency and serve to help defray the cost of environmental review by the Department. Payment of the fee is required for the underlying Project approval to be operative, vested, and final. (Cal. Code Regs, tit. 14, § 753.5; Fish & G. Code,§ 711.4; Pub. Resources Code,§ 21089.) 1 https://wildlife.ca.gov/Data/CNDDB/Submitting-Data L3-9cont. L3-10 L3-11 L3-12 DocuSign Envelope ID: E58BB501-70B6-4529-9084-12EDBAB46913 Dai Hoang (FWS/CDFW-23-0072195_CEQA-SD) 5 We acknowledge the early efforts by the City and Project proponent to coordinate with Wildlife Agencies through pre-CEQA consultation. We appreciate the opportunity to comment on the draft MND and look forward to our continued collaboration in implementing the City's SAP. If you have questions or comments regarding this letter, please contact Paola Perez2 of the Department at 858-354-2413 or Eric Porter 3 of the Service at 760-431-9440. SUSAN WYNN Digitally signed by SUSAN WYNN Date: 2023.04.27 10:47:58 -07'00' for Jonathan D. Snyder Assistant Field Supervisor U.S. Fish and Wildlife Service cc: Karen Drewe, 4 CDFW Heather Schmalbach , 5 CDFW Jonathan D. Snyder,6 Service Susan Wynn, 7 Service 2 paola.perez@wildlife.ca.gov. 3 eric_porter@fws.gov. 4 Karen.Drewe@wildlife.ca.gov. 5 Heather.Schmalbach@wi ldli fe.ca.gov. 6 Jonathan_D_Snyder@fws.gov. 7 Susan_ Wynn@fws.gov. Sincerely, jnOocuSlgned by: LE:t2�� David A. Mayer Environmental Program Manager California Department of Fish and Wildlife L3-13