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Home My WebLink About1994/07/26 Item 26A COUNCIL INFORMATION MEMO May 4, 1994 TO: The Honorable Mayor and City C~e\~l John Goss, City Manage~ ~~\ Bob Leiter, Director of Planning j;J!f{ Implementation of the Endangered Species Act Special 4(d) Rule for the Listing of the California Gnatcatcher VIA: FROM: SUBJECT: Late last year the Federal Department of the Interior adopted the special 4(d) rule regulating the habitat take of the California Gnatcatcher, which is now listed as a threatened species. This special rule links protection of the bird to the California Natural Community Conservation Planning (NCCP) process. Prior to the preparation of an overall NCCP plan, the process allows the "take" of up to 5% of Coastal Sage Scrub (CSS), which is the habitat for the Gnatcatcher. During the past several months City staff has been working with staffs from throughout the region to develop a process to allow local agencies to implement this "take" process. One of these points of contact is the Regional Conservation Coordination Committee under SANDAG. After much discussion, this Committee concluded that the region's allocation of the 5 % take should be based on a jurisdictional formula, wherein each jurisdiction would be allocated 5 % of the total coastal sage scrub habitat located within their jurisdictional boundary. The City of San Diego has moved ahead on this basis and adopted 4(d) take procedures, and the County has adopted an interim ordinance. City of ChuIa Vista staff has never endorsed this formula, finding that the allocation available for Chula Vista under this formula (approximately 107 acres) would not accommodate development of projects which have already received discretionary approvals and have in some cases received approval from the U.S. Fish and Wildlife Service for mitigation plans. Our staff has been in discussions with U. S. Fish and Wildlife Service, California Department of Fish and Game, and County staff regarding this matter. Attached is a copy of a letter we recently sent to the U. S. Fish and Wildlife Service regarding these issues. On April 29, we also met with the County of San Diego's Resource Protection Ordinance Committee, which is working on these issues with County staff, and they directed County staff to continue to work with our staff to resolve this issue. We plan to return to City Council with a Council Agenda Statement addressing these issues and other issues related to the California Gnatcatcher listing and NCCP program on May 24. More recently a U.S. District Judge voided the Interior Department's listing. We have been consulting with the City Attorney's office, U.S. Fish and Wildlife Service and other agencies to determine the implication of this ruling. The Council Agenda Statement of May 24 will provide greater detail in this regard. If you have any immediate questions regarding this issue, please call Doug Reid or myself at Extension 5101. Attachment: Letter to Gail Kobetich dated 4/25/94 (f:\homc\p1anning\cagnat.cim) (' / cl.~ a.. - ~~r~ :J'lt_ ~ .-....,;~......~ ~~~=-- ClN OF CHUlA VISTA PLANNING DEPARTMENT April 25, 1994 Gail Kobetich U.S. Fish & Wildlife Service 2730 Loker Ave. West Carlsbad, CA 92008 Subject: Interim Habitat Loss Approval Process for Federal Endangered Species Act Consistency 4(d) - Jurisdictional Take Allocation Dear Mr. Kobetich: Through our recent discussions with you and your staff and our review of the Final Rule for implementation of the 4(d) Rule within our jurisdiction, we have become aware of potential problems with the currently proposed allocation of habitat by jurisdiction within San Diego County. The City of Chula Vista would have serious difficulties implementing the 4(d) rule within its jurisdictional boundaries unless alternative methods of allocating acreage for interim take are adopted. The City of Chula Vista has not entered into a formal agreement, nor have we formally endorsed the use of the jurisdictional acreage allocation formula previously discussed by the SANDAG Regional Conservation Coordinating Committee (RCCC). We did concur with other members of the RCCC that the U.S. Fish & Wildlife Service (USF&WS) should be consulted regarding the potential use of such a formula. We never assumed that asking USF&WS if such a formula would be acceptable would be interpreted as Chula Vista's unconditional approval of tIus possible method for allocating the region's 5% take. We believe there are a variety of issues that must be resolved in considering how the 4(d) rule will be implemented in region. Those issues are as follows: . It is our understanding that "Takes" that exceed a local agency's 4( d) allotment must pursue a Section 7 or 10(a) from the U.S. Fish and Wildlife Service which the Service may approve. These Section 7 or 10(a) permits will count against the region's overall 5 % take, and the jurisdictions' RCCC 4(d) allotment. Section 7 and lO(a) approval from the Service may exceed a jurisdiction's allotment and preclude the use of the 4(d) rule. c2tL2--d- 276 FOURTH A\'E/CI-'U:"''; \.'ISTA CALIFORNIA 91910/,6191 691-51(11 Gail Kobetich Page 2 April 25, 1994 Under this scenario, it is conceivable that the region's 5 % take will be exhausted before all of the jurisdictions grant permits up to their 5 % jurisdictional allocation or a jurisdiction's 5% allocation could be reached prior to the region's 5% allowable take. The result could be that the jurisdictional allotment will be de facto overridden by the Service without approval from the affected Cities unless this issue is dealt with early in the process. . Because of the large amount of CSS "Take" allocated to the County of San Diego versus urbanizing cities, the RCCC jurisdictional allotment does not encourage habitat "Takes" within urbanized, fragmented, low quality habitats where the long term viability of the species is questionable. The jurisdiction allotment does appear to encourage habitat "takes" in rural high quality habitat areas where the long term viability of the species is more probable than in the urbanizing areas. . The RCCC jurisdictional allotment is based on the corporate boundaries of the Cities and the County of San Diego. It does not consider the likely boundaries of future preservation areas that will be adopted in the MSCP and/or NCCP. The MSCP/NCCP preservation boundaries will not necessarily relate to municipal boundaries but rather will follow logical biological boundaries. Specifically, the adopted NCCP Conservation Guidelines state that "recognizing that large subregions must meet the objective of limiting short-term CSS losses on a biologically valid scale. some further subdivision of a large planning subregion into appropriately sized biological subareas for the purpose of accounting for interim habitat loss may be necessary." (p.lO) Therefore, a system should be devised that more closely aligns the interim preservation with the biological subareas which will ultimately be used in developing a long-range plan. . The RCCC jurisdictional allotment does not consider the viability of habitat in each jurisdiction. This could lead to fragmented habitat areas as each jurisdiction proceeds to implement the 4(d) rule independently without regard for connected viable habitats. . A Special District within the boundaries of a local agency may potentially use all or a portion of a local agency's RCCC jurisdictional "Take" allotment without approval from the affected local agency. - The City of Chula Vista has worked closely with the County of San Diego and other local agencies and will continue to so on efforts to adopt a regional plan for implementation of the 4(d) rule and/or alternative methods of allocating the interim take among jurisdictions. We believe it is within the intent of the 4(d) implementation guidelines that the fragmented, urbanized, low quality habitat should be the first considered for a "take" and that the rural areas c2&a-~3 "',Tv '"'~ I"'UIII /II '"C"TA Gail Kobetich Page 3 April 25, 1994 contammg high quality habitat should be preserved for the future planning efforts of the MSCP/NCCP. We appreciate your consideration of these points and look forward to working with your office towards the resolution of the issues we have presented and the implementation of the 4(d) rule in our region. Sincerely, I ;(;~~i;f !.J~ Robert A. Leiter Director of Planning RAL:MRFP/nr (f: \bomc\plarming \kobetich .Itr) cc: Larry Eng, California Department of Fish & Game, Sacramento, CA Sid Morris, Assistant City Manager, City of Chula Vista Ernest Freeman, Planning Director, City of San Diego Lauren Wasserman, Planning Director, County of San Diego Bob Asher, Chief Planner, County of San Diego 02~~ ~i JUSTIFICATION OF EMERGENCY ORDINANCE IMPLEMENTING THE 4(d) RULE 1. The emergency action is necessary to adhere to very specific biological time periods with respect to impacts to the California gnatcatcher. Grading must be initiated during the non-breeding period or "biological window", the period of September 1st through February 15th. Failure to begin grading during the upcoming "window" in the Rancho Del Rey SPA III area will result in delays of one year or longer to the construction of the Rancho Del Rey Junior HighlMiddle School, adjoining community park, and other desired public improvements.. 2. The Rancho Del Rey Partnership currently has in escrow approximately 400 acres of off-site mitigation land in the O'Neal Canyon area (approved by the City Council on July 12,1 994) which is a keystone property within the regional open space preserve system. Close of escrow and resulting property preservation is tied to the immediate enaction of the 4( d) rule. Failure to enact the 4( d) rule could result in the loss of this valuable habitat. 3. Both public and private projects are being delayed pending implementation of the 4( d) rule. C:LB\CF\WlNWORDIFILES\4DRULE // c2/Pa -'? JULY 22, 1994