HomeMy WebLinkAbout1994/08/16 Item 15
COUNCIL AGENDA STATEMENT
Item ~
Meeting Date 8/16/94
ITEM TITLE:
Ordinance 2.l.oO'2. Amending the Municipal Code to Create a
Voluntary Take Permit Process Sanctioned Under Section 4(d) of the
Endangered Species Act Alternative to the Process Permitted Under
Section lO(a) of Said Ad 1 1
Di='", of pu:"hf r r:;:1CV
City Manager ~1',i5~ (4/5ths Vote: Yes.lLNo_)
In March, 1993 the Federal Department of the Interior listed the California Gnatcatcher as a
threatened species, and adopted a special rule under Section 4(d) of the Endangered Species Act
which establishes specific regulations regarding the taking of Coastal Sage Scrub (CSS), the
habitat of the Gnatcatcher. This Special Rule allows local jurisdictions to grant CSS "take"
permits if certain findings can be made. The 4(d) Rule is intended to provide an alternative for
applicants who choose not to go directly through the U.S. Fish and Wildlife Service (USFWS)
for a Section lO(a) permit. During the past several months, City staff has been working with
staff of the resource agencies and other local jurisdictions, as well as local property owners, to
implement this local "take" permit process. This emergency ordinance will implement a 4(d)
Take Permit Process for the City, thus allowing the City to issue CSS take permits at the local
level. The proposed ordinance is exempt from enviromnental review under the California
Enviromnental Quality Act, under Class 8 of the Categorical Exemptions. Class 8 consists of
"actions taken by regulatory agencies... to assure the maintenance, restoration, enhancement
or protection of the enviromnent, where the regulatory process involves procedures for
protection of the enviromnent."
SUBMITTED BY:
REVIEWED BY:
RECOMMENDATION: That Council adopt the ordinance as an emergency ordinance.
BOARDS/COMMISSIONS RECOMMENDATION: The Resource Conservation Cormnission
considered the draft ordinance at their August 8, 1994 meeting. Staff briefed the cormnittee on
the background of the 4( d) rule and the proposed process contained in the ordinance for
processing the permits. Staff also explained that the ordinance is proposed as an emergency
ordinance in order to accormnodate grading for the Rancho Del Rey Middle/High School and
cormnunity park during the upcoming biological window. A motion to recormnend adoption of
the emergency ordinance failed. The vote was 3-1 in favor of the ordinance; however, four
affirmative votes are required to support any motion. Cormnittee Member Guerreiro voted
against the motion and stated that he was not in favor of any action that would accelerate
development in the City. Three members of the Cormnittee were absent; therefore, a favorable
vote on the item would have required a unanimous vote by all in attendance.
/y /
Page 2, Item ,5
Meeting Date 8/16/94
DISCUSSION:
Background:
As indicated above, on March 25, 1993, the Federal government listed the California gnatcatcher
as a threatened species under the Endangered Species Act (ESA). Typically, any "take" (harm
or harassment) of listed species is strictly regulated by the USFWS, through ESA Section 7 or
lO(a) permits. A Section lO(a) permit is issued by the USFWS for a "take" on private property
when there is no substantial Federal involvement (i.e. a Federal permit). Section 7 is a
consultation process with the USFWS for Federal projects or private projects that require other
Federal permits, such as a "404" permit which is issued by the Army Corps of Engineers for
alteration of watercourses.
In the case of the California gnatcatcher, the USFWS signed a unique Memorandum of
Understanding with the State of California Department of Fish and Game (CDFG) to
cooperatively develop conservation strategies for long-term protection of coastal sage scrub
(CSS), which is the habitat for the gnatcatcher and other sensitive species. The State's Natural
Communities Conservation Planning (NCCP) Act, passed in 1991, and the resultant NCCP
program, have outlined habitat conservation strategies in two sets of guidelines: NCCP
Conservation Guidelines, and NCCP Process Guidelines, both finalized in November, 1993.
On May 2, 1992 the City of City Chula Vista enrolled in the NCCP. By enrolling in the NCCP,
the City agreed to join in the collaborative planning process to conserve long-term viable
populations of the State's native animal and plant species by providing interconnected open space
areas while allowing compatible and appropriate development and growth. In addition, on
August 24, 1993, the City Council approved a Resolution of Intention (ROI) to participate in the
San Diego Multiple Species Conservation Program (MSCP) Plan. The ROI made Chula Vista
an active participant in the MSCP and the future conservation planning efforts for the California
Gnatcatcher and other potentially threatened species.
The implementation of the Endangered Species Act and the NCCP is a two step process. The
first step is the interim protection of CSS habitat through the Special 4(d) rule; the second step
is the adoption of a permanent conservation plan, in coordination with the MSCP and NCCP
programs. By the previous actions taken by the City to enroll in the NCCP and to participate
in the MSCP, the City is working actively toward the adoption of a permanent conservation plan
that will comply with the requirements of the Endangered Species Act.
On December 10, 1993, the USFWS formalized its relationship with the State's NCCP effort
by publishing the final Endangered Species Act Section 4(d) special rule, effective on that date.
/5"'~
Page 3, Item , S
Meeting Date 8/16/94
The 4( d) rule allows local jurisdictions to approve "incidental take" of CSS habitat, up to a
cumulative 5 percent loss of CSS within the region, during the period of time that subregions
of southern California are preparing conservation plans consistent with the NCCP program.
Individual project CSS loss is only permitted if a mitigation plan is approved.
The interim take of coastal sage scrub allowed through the 4( d) process can be approved only
through local procedures which are consistent with those outlined in the NCCP Conservation
Guidelines and Process Guidelines. These procedures are intended to be integrated into the
normal local land use process. Among other requirements, the NCCP guidelines contain
standards for evaluation of take requests, several required findings that must be made by the City
in granting an interim take permit, and review of local permits by the resource agencies within
a specified time period.
Summarv of the Draft Ordinance
The proposed ordinance is intended to provide an alternative procedures for obtaining
authorization to take CSS within the City of Chula Vista. Under the proposed ordinance, the
take permit would become a part of the City's environmental review process. The proposed City
take permit would be processed as a part of the project environmental review, either the Initial
Study or the EIR. Integration of the take permit process with the City's environmental review
process will ensure both a thorough evaluation of the biological resources issues and appropriate
mitigation requirements, and will also allow adequate opportunity for input from the public,
resource agencies, and other affected agencies.
The proposed ordinance has a provision for granting a take permit to previously approved
("pipeline") projects that have already been through the City's environmental review process.
In those cases only the Resource Agencies would be consulted and there would not be additional
public review.
As proposed, the Director of Planning would issue all take permits. In the case of discretionary
actions, the [mdings for granting the take permit would be considered by the decision makers
who would authorize the Director of Planning to issue the permit provided that the findings are
still valid at the time of issuance. The intent of this provision is to ensure that take permits are
only issued when grading or site clearance is inuninent. Since the granting of a take permit
would essentially reserve a portion of the regional 5 % for a particular project, it is important
that the take allocation not be reserved until it is really needed. This will alleviate the possibly
of artificially using up the 5 % for take on paper but not actually in the field.
In addition to the provisions for granting take permits for those actions currently addressed by
City codes, this ordinance also includes a provision requiring authorization for the previously
unregulated activity of vegetation clearing and grubbing that does not involve grading or any
other type of City permit. It is required under the 4 (d) rule that this activity be regulated in
/~J
Page 4, Item IS
Meeting Date 8/16/94
the ordinance to prevent property owners from destroying or disturbing CSS habitat that is
protected by the NCCP even when no other permits are requested.
Proposed Adoption of Ordinance as Emergencv Ordinance
This ordinance is being presented as an emergency ordinance in order to allow consideration of
a interim take permit for at least one previously approved project (Rancho del Rey SPA III), for
which the applicant wishes to begin grading within the non-nesting "biological window" for the
gnatcatcher (September 1 through February 15). This project includes construction of major
public facilities, including a public middle school and community park, which will serve both
existing and future residents of the surrounding community. It is therefore important to the
applicant and the City that grading operations begin as quickly as possible in order to maximize
the grading activities during the "biological window". This will minimize, to the extent
possible, the impacts to the gnatcatcher during their breeding period. The mitigation plans for
this project have been reviewed and approved by both the City and the USFWS; however,
processing of a 10(a) permit by the USFWS would delay construction of the project by at least
one year.
Unresolved Issues
As reported to the City Council on June 7, 1994, there are still several unresolved issues
regarding the interim take process, including the final status of the gnatcatcher listing itself, as
well as issues regarding the allocation of interim take acreage within the San Diego region (see
Attachment). Staff is continuing to work with resource agency staffs and the County of San
Diego staff to clarify and resolve these issues. However, staff has determined that adoption of
the attached ordinance can proceed at this time, and as issues regarding the interim take process
are resolved, the ordinance and/or administrative procedures will be reviewed and, if necessary,
be proposed for amendment.
FISCAL IMPACT: All staff time necessary to implement this proposal would be reimbursed
by project applicants through the full cost recovery provisions of the City's environmental
review process.
(f:home\pJanning\ordinance.113)
I.s: If
ORDINANCE NO. .:z.~p,,:J..
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE MUNICIPAL CODE TO
CREATE A VOLUNTARY TAKE PERMIT PROCESS
SANCTIONED UNDER SECTION 4(d) OF THE
ENDANGERED SPECIES ACT ALTERNATIVE TO THE
PROCESS PERMITTED UNDER SECTION 10(a) OF SAID
ACT.
Whereas, in March, 1993, the Federal government listed the
coastal California Gnatcatcher as a threatened species under the
Endangered Species Act of 1973 (16 U.S.C. S 1531 et seq.,
hereinafter, the "Act"). The Act makes it a violation of federal
law to carry out any activity which will result in a take of the
species. "Take" of the gnatcatcher, broadly defined in the Act to
include harm to or harassment of the species, is prohibited.
Whereas, The U.S. Fish and Wildlife Service has promulgated a
special rule under Section 4 (d) of the Act, which will allow
incidental take of the species if it results from activities which
are conducted pursuant to either: (1) the State of California's
Natural Communities Conservation Planning Act ("NCCP") and in
accordance with an approved NCCP plan prepared consistent with the
State's NCCP Conservation Guidelines and Process Guidelines; or (2)
(during the period that such an NCCP plan is being prepared), the
NCCP Conservation Guidelines and Process Guidelines published by
the California Department of Fish and Game, if within an area under
the jurisdiction of a local government agency which is enrolled and
actively engaged in the preparation of an NCCP plan. This special
rule became effective on December 10, 1993.
Whereas, the NCCP Conservation Guidelines and Process
Guidelines call for the regulation of all coastal sage scrub within
the region, and establish a planning process for the protection of
this habitat. The Guidelines further provide a process for
issuance of habitat loss permits which local government agencies
may adopt. Because the City of Chula Vista has formally enrolled
in the NCCP process and is actively engaged in the preparation of
an NCCP for the protection of Coastal Sage Scrub within the area
under its jurisdiction, under the special rule promulgated under
Section 4(d), incidental take of the gnat catcher would not be a
violation of the Act if authorized by a habitat loss permit issued
by the City pursuant to the NCCP Conservation Guidelines and
Process Guidelines.
Whereas, without such a habitat loss permit process under
Section 4(d), no development of habitat occupied by the gnatcatcher
may occur unless authorized under Section 7 or 10(a) of the Act.
Sections 7 and 10(a) set forth a permitting process which can take
Interim 4(d) Rule Take Ordinance
If- S Page 1
several years to complete. Failure to adopt a habitat loss permit
process, thus requiring that proposed land development applications
proceed under Section 7 and 10 (a) processes, would halt all
progress of development of occupied habitat in the region for a
substantial time.
Whereas, Sections 7 and 10 (a) of the Act only regulate
occupied coastal sage scrub habitat. The NCCP process contemplates
protection of all coastal sage scrub habitat, which will result in
protection of many species in addition to the coastal California
Gnatcatcher.
Whereas, Regulation of impact to coastal sage scrub within the
City is necessary immediately because the Section 4(d) rule allows
only 5% of all coastal sage scrub remaining in the region to be
disturbed. Until the requirements of the ordinance are imposed,
Coastal sage scrub unoccupied by the gnatcatcher will continue to
be disturbed, posing a serious threat to the viability of the NCCP
plan and foreclosing the City's option in prioritizing projects for
the public peace, health and safety. The preservation of the
public peace, health and safety requires that projects which impact
Coastal sage scrub be reviewed in terms of impacts to this regional
resource, not individually.
Whereas, adoption of this ordinance is necessary on an urgency
basis to eliminate the need for and the delays in costs of
procuring incidental take permits under Section 7 or 10(a) of the
Act on an individual project basis. The preservation of the public
peace health and safety require that development in the region
proceed with a reasonable degree of certainty.
Whereas, the emergency action is necessary to adhere to very
specific biological time periods with respects 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 could result
in delays of one year or longer to the construction of the Rancho
Del Rey Junior High/Middle School, adjoining community park, and
other desired public facilities which would serve both existing and
future residents of this area.
Whereas, 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, 1994)
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 valuable
habitat.
Interim
If, (,
4(d) Rule Take Ordinance
Page 2
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Chapter 17.30 (" Interim Coastal Sage Scrub Habitat
Loss Permit Process") is hereby added to the Municipal Code, which
Chapter 17.30 shall read as follows:
"Chapter: 17.30 - Interim Coastal Sage Scrub Habitat Loss Permit
Process
Section 17.30.010
Purpose and Intent
It is the purpose of this section to implement, on an interim
basis, a process that would allow the City of Chula Vista to issue
permits for the taking (direct or indirect loss) of Coastal Sage
Scrub (CSS) habitat as an alternative to the existing mandatory
process prescribed under Section 10 (a) of the Endangered Species
Act.
This process is intended to implement, on a voluntary basis,
the provisions of the State of California Natural Community
Conservation Plan Act and the United States of America Endangered
Species Act of 1973, as amended, and as it related to 50 CFR 17.41,
incidental take of Coastal California Gnatcatcher.
Section 17.30.020
General Authorization
As a voluntary alternative to those government agencies,
public utilities, or persons wishing to process a "take" of Coastal
Sage Scrub located within the annexed territorial limits of the
City of Chula Vista, who prefer not to process an Endangered
Species Act (ESA) Section 10(a) permit directly through the United
States Fish and Wildlife Service (USF&WS), the City of Chula Vista
may use its Land Use regulatory authority along with cooperative
agreements and other authorities granted in cooperation with the
State of California through the Natural Communities Conservation
Planning (NCCP) Act, Southern California Coastal Sage Scrub
Program, and the United States of America Endangered Species Act
(ESA) authorization for incidental take of the Coastal California
Gnatcatcher (Potiaptila Californica Californica) for activities
conducted under the authority of the State of California NCCP
pursuant to 50 CFR 17.41. Those government agencies, publ ic
utilities, or persons wishing not to process a 4(d) Take permit
through the City of Chula Vista may process a Endangered Species
Act (ESA) 10(a) permit directly through the USF&WS.
Applicants wishing to pursue a 4(d) Take Permit through the
City of Chula Vista shall agree to indemnify the City of Chula
Vista, its officers, employees or agents in a form acceptable to
the City, release the City of any and all liability for, and waive
any and all claims against the City, its officers, employees or
I~?
Interim 4(d) Rule Take Ordinance
Page 3
agents for exercising its authority provided including any claims
for eminent domain or inverse eminent domain, and any loss that may
be suffered as a result of implementing or conditioning a 4(d) Take
Permit.
The Director of Planning of the City of Chula Vista shall be
responsible for issuance of 4(d) Take Permits in accordance with
Section 17.30.052 through 17.30.054.
Section 17.30.040
CSS "Take" Defined
When used in this Chapter, "take" of or "taking" Coastal Sage
Scrub shall be deemed to occur if all or any part of the plant
community which constitutes Coastal Sage Scrub is directly or
indirectly, intentionally or unintentionally, destroyed or
disturbed in a manner that could impair the continued survival of
any plant which constitutes a part of the plant community.
Section 17.30.045
"Coastal Saqe Scrub" ("CSS") Defined
A natural community of plants approximately located on or
within 15 miles of the Southern California and northern Baja,
Mexico Pacific Ocean coast line which provides or is capable of
providing habitat (flying, breeding, nesting, nurturing, foraging
or dispersing areas) support for the California Gnatcatcher,
including but not limited to the following characteristic species
of plant:
. California sagebrush (Artemisia californica)
. Several species of sage (Salvia mellifera, Salvia
leucophylla, and Salvia apiana)
. California encelia (Encelia californica)
. Brittlebush (Encelia farinosa)
. San Diego sunflower (Viguiera lacinata)
. Buckwheats (including Eriogonum fasciculatum and
Eriogonum cinereum)
. Evergreen sclerophyllous shrubs such as Malosma laurina,
Rhus integrifolia, and Rhus ovata
Section 17.30.050
Coastal Sage Scrub (CSS) Take Permit Process
Section 17.30.051
General Coastal Saqe Scrub (CSS) Take Process
Any take of CSS done pursuant to this Chapter shall require an
advance written permit ("Take Permit") from the City issued
pursuant to the requirements and conditions of this Chapter. If an
applicant chooses to obtain authorization by processing a 4(d) Take
permit through the City of Chula Vista, rather than processing an
Endangered Species Act Section 10(a) permit directly through the
USF&WS, the issuance of the Take Permit shall be coordinated with
other permit processes of the City of Chula Vista, as provided for
~ Interim 4(d) Rule Take
1>-- ~
Ordinance
Page 4
in Section 17.30.060; and be subject to the making of findings as
provided in Section 17.30.070 of this Chapter; be issued
conditional on the mitigation of any take as provided in Section
17.30.080; and be coordinated with other agencies such as the
California Department of Fish & Game (CDF&G) and United States Fish
and wildlife Service (USF&WS) and the giving of appropriate notices
as provided in Section 17.30.090.
Section 17.30.052
Adoption of Sensitive Habitat Map
For the purposes of this Chapter, the City Council of the City
of Chula Vista authorizes the Director of Planning to certify an
NCCP Sensitive Habitat Map for the Planning boundaries of the City
of Chula Vista and adjacent area. Said map shall be used, in part,
for determining those project sites that shall be subject to the
4(d) Take Permit Process.
Section 17.30.053
Take Permit Application Process
A. Application.
1. Projects Not previously Entitled.
For projects which, at the time of the adoption of this
ordinance, have not received all previous entitlements to proceed,
and have not submitted all required information and data in order
to permit the City to grant entitlements to proceed except for the
issuance of a Take Permit ("Non-Pipeline Projects"), in order to
obtain a Take Permit, an applicant shall submit an application to
the Director of Planning, on such form or forms as s/he may
prescribe, but which, at a minimum, shall require sufficient
project information to enable the Director to make the Required
Findings, set forth below, and to allow environmental processing
pursuant to the California Environmental Quality Act (CEQA). The
application shall include information which clearly identifies
existing habitats by type, and the ultimate envelope of habitats to
be impacted by the project. An assessment of existing biological
resources, and analysis of project impacts and proposed mitigation
measures must be included. The biological information submitted
shall include a biological assessment prepared for the project site
in conformance with the State of California NCCP Scientific Review
Panel (SRP) field survey guidelines, or a methodology accepted by
the California Department of Fish & Game (CDFG) as equivalent. In
addition, these assessments must follow the guidelines established
by the City of Chula Vista Environmental Review Procedures. The
biological assessment shall determine the CSS value (high,
intermediate or lower) as indicated in areas designated by the
Sensitive Habitat Map referred to in Section 17.30.030.
An application for a Take Permit shall include completed City
application forms, including an Initial Study Application; and the
/.."""-;' 9 Interim 4 (d) Rule Take Ordinance
~ . Page 5
number of sets of project site and development plans determined by
the Planning Department to be adequate. The plans will clearly
identify existing habitats by type and the ultimate envelope of
habitat to be retained or impacted; required environmental
documentation addressing 4(d) permit findings and proposed
mitigation; and any applicant-proposed mitigation program or
measures to satisfy Take Permit requirements. This is in addition
to materials which may have been submitted for other project
permits.
Projects requiring a 4(d) permit can apply for said permit
simultaneously with their other discretionary permit actions or in
the case of small projects and previously approved projects,
simultaneously with grading permits. The 4(d) permit can also be
applied for separately prior to other permits, but in no case can
a development permit be issued prior to a required 4(d) permit
approval.
A project applicant shall submit a mitigation plan that
demonstrates that the project is consistent with the findings
required in Section 17.30.070. The project must demonstrate
capacity for funding appropriate mitigation, and mitigation must be
legally assured. Habitat acquisitions and set-asides, when used,
should occur in areas with long-term conservation potential. Any
fees paid for habitat mitigation shall be maintained in an
appropriate fund, dedicated to habitat mitigation, and separate
from other development impact or other City funds.
2. Previously Entitled Projects.
For projects which, at the time of the adoption of this
ordinance, have received all previous entitlements to proceed, or
have submitted all required information and data in order to permit
the City to grant entitlements to proceed except for the issuance
of a Take Permit ("Pipeline Projects"), the Director is authorized
to waive any of the application requirements set forth above in
subsection A.l. to the extent the information so waived is
otherwise available to the Director in environmental and planning
documents already in the possession of the City.
B. Fees.
The applicant for a Take Permit shall pay such fee as the City
determines is sufficient to permit the recovery of its cost of
reviewing and granting same, as such fee is set forth in, and from
time to time modified in, the City of Chula Vista Master Fee
Schedule. Until such a fee is established by the City Council in
the Master Fee Resolution, the fee shall be determined by the City
Manager, or his designee. Said fee shall be estimated by the City
at the time a completed application for a Take Permit is submitted,
and the applicant shall deposit the amount of said estimate with
Jf"/~
Interim 4(d) Rule Take Ordinance
Page 6
the City upon submittal of the application. The City shall not
process an application for a Take Permit until the required fee
deposit has been made. The City staff shall charge its time and
expenses against the deposit. If the City determines that the
deposit is, or is likely to be, inadequate during the processing of
the application, the City shall notify the applicant, and unless
the deposit is supplemented by an additional deposit, the City
shall terminate processing of the application. No Take Permit
shall be issued until all required fees have been paid. Any excess
deposit after payment of the fees shall be returned to the
applicant.
C. Review of Application.
After the City has determined that the application for a Take
Permit is complete and the required fees or deposit for fees has
been made, the City, through the Planning Director, shall initially
determine if the Property has CSS thereon, and the amount, by
acreage, which is proposed for loss under the requested Take
Permit.
D. Required Findings.
If the Director determines that the Property contains CSS, the
Director shall determine if the following findings ("Findings") are
true:
1. The habitat loss, as proposed for issuance under
the Take Permit, is consistent with the "interim
loss criteria" in the November, 1993 State Natural
Community Conservation Program (NCCP) Conservation
Guidelines (as specified in items a. through d.
below) and, if a subregional interim take process
is established in a form approved by the City of
Chula Vista at the time of the issuance of the Take
Permit, consistent with such approved subregional
interim take process.
a. The habitat loss, under the Take Permit as
proposed by the Director for issuance, will
not exceed on the date of issuance, when
considered cumulatively with all other loss of
CSS occurring since March 21, 1993, exceed 5%
by acreage of the then existing CSS within the
region.
b. The habitat loss, under the Take Permit as
proposed by the Director for issuance, will
not preclude connectivity between areas of
high habitat values.
/.5,//
Interim 4(d) Rule Take Ordinance
Page 7
c. The habitat loss, under the Take Permit as
proposed by the Director for issuance, will
not preclude or prevent the preparation of the
subregional NCCP.
d. The habitat loss, under the Take Permit as
proposed by the Director for issuance, has
been minimized and mitigated in accordance
with Section 4.3 ("Interim Mitigation") of the
"Southern California Coastal Sage Scrub
Natural Communities Conservation Planning
Process Guidelines, dated 11/5/93, and
thereafter, to the maximum extent practicable.
2. The habitat loss will not appreciably reduce the
likelihood of the survival and recovery of the
Coastal California Gnatcatcher (Fotiaptila
Californica Californica) .
3. The habitat loss is incidental to otherwise lawful
activities.
4. Proposed mitigation is consistent with NCCP Process
Guidelines requirements.
E. Preparation of Draft Findings, and Proposed Terms and
Conditions (including mitigation measures)
If the Director determines that the foregoing Findings are
true, s/he shall use his or her discretion in granting a Take
permit, and in doing so, may consider, among other things deemed
appropriate, the following:
a) The CSS on-site is not dense or classified as high
quality;
b) The CSS on-site is not in proximity to a high
quality CSS stand; and,
c) The CSS on-site is not located in a corridor
between higher value CSS stands
If the Director resolves to issue a Take Permit, s/he shall
prepare draft written findings, and such proposed terms and
conditions, including mitigation measures, s/he deems appropriate
upon which to issue the Take Permit ("Draft Take Permit").
F. Resource Agencies Review of Certain Pipeline Projects.
For Pipeline Projects which have already undergone CEQA review
and no change to the project design/permit are required in order to
issue the Draft Take Permit, the Draft Take Permit shall not be
issued for a period of 30 days ("Review Period") after a Notice of
/.'~I'~ Interim 4(d) Rule Take Ordinance
'.;J . Page 8
Availability of the Draft Take Permit and Draft Take Permit
(including findings and intent to issue) has been distributed to
the San Diego Association of Governments (SANDAG) and the
California Department of Fish & Game ("CDFG") and the U.S. Fish and
Wildlife Service ("USF&WS") (the latter two of which shall, when
referenced together, shall collectively be referred to as the
"Resource Agencies"). No additional review by the general public,
or public hearing and noticing of the public will be required.
SANDAG shall, during the first 15 days of the Review Period,
have the opportunity to review the Draft Take Permit to verify that
the proposed habitat loss does not exceed the maximum permitted
habitat loss for the subregion.
The USFW&S shall, during the Review Period, have the
opportunity to review the Draft Take Permit and to notify the City
whether, in their opinion, the project and mitigation program are
inconsistent with the Conservation Guidelines. If the USF&WS
opines that the proposed Take Permit is not consistent with the
Conservation Guidelines, they shall have a maximum of 60 days after
notification of their opinion of inconsistency to consult with CDFG
and provide recommendations to the City for modifying the Draft
Take Permit (including modifying the project or terms and
conditions of the Take Permit), to eliminate the inconsistency.
If USF&WS responds that the Draft Take Permit is consistent
with the Conservation Guidelines in less than 30 days, the Review
Period shall end at the later of the date of such response or the
first 15 days of the Review Period.
If SANDAG confirms that the regional cumulative 5% habitat
loss is not exceeded and if no notification is provided by the
USF&WS within the above-noted 30 days, the proposed habitat loss
shall be deemed approved and the 4(d) permit shall be granted.
G. Public Review.
For Non-Pipeline Projects, the Director of Planning (or his
designee) shall provide the public agencies listed in subsection F.
above with the same review rights as set forth therein for the same
Review Period, and in addition thereto, shall make the Draft Take
Permit, including the findings, terms and conditions, available for
public review as part of the environmental review process.
H. Inconsistency with Guidelines.
The
required
the Take
Director shall either
by the USF&WS in the Draft
Permit.
include such recommendations
Take Permit, or shall not issue
J'~/-7 Interim 4(d) Rule Take Ordinance
Page 9
I. Issuance of Permit.
The Director may issue the Draft Take Permit in the form as
modified by the requirements of the USF&WS, subject to such
additional terms and conditions as he deems appropriate resulting
from the application and review process, including, but not limited
to the following conditions:
1. The Take Permit shall be issued only when development
is eminent, and shall automatically expire six (6) months
from issuance unless, in the opinion of the Director,
substantial site work or other site development
activities have not commenced. The Director is
authorized to extend the termination date of the Take
Permit if requested by the applicant, but not for a
period of time greater than six (6) months from the
termination date of the originally issued Take Permit,
and then, only if the Director determines that the
findings, terms and conditions on which the Take Permit
was originally issued still apply, the need for the
extension is due to circumstances beyond the control of
the applicant and that development will likely proceed
prior to the expiration of the extended time period.
Section 17.30.102
Grant of Take Permits by Fire Marshal
Without complying with the requirements of this Chapter or
Section 10(a) of the Endangered Species Act, or the rules and
regulations promulgated thereunder, the City of Chula Vista Fire
Marshal is authorized to take CSS or to issue a Take Permit to a
property owner to take CSS where it is necessary in his or her
opinion to mitigate an extreme fire danger that threatens humans or
structures occupied or capable of being occupied by humans, and
then only to the extent necessary to mitigate such danger, but in
no event more than 30 feet from any property line. In such cases,
only thinning and pruning of CSS habitat will be allowed.
Section 2. The City Council does hereby find that, based on
the facts set forth in the recitals hereto, this ordinance is
necessary as an emergency measure for preserving the public peace,
health, safety, and general welfare, an may be 'ntroduced and
adopted at one and the same meeting i p ssed by at least four
affirmative votes. I
Presented by:
Bruce M. Booga
City Attorney
Robert A. Leiter
Director of Planning
1~~~Interim 4(d) Rule Take Ordinance
Page 10
COUNCIL AGENDA STATEMENT
Item
Meeting Date~~i~
ITEM TITLE: Report: Implementation of the Endangered Species Act Special Rule 4( d)
for the Interim Habitat Loss Approval Process
SUBMITIED BY: Director of Planning 1lJ(
REVIEWED BY: City Manager
(4/5ths Vote: Yes_No.]L)
Last year the Federal Department of the Interior adopted the Special 4( d) rule regulating the
habitat "take" of the California Gnatcatcher. 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. The following report provides further information
regarding implementation of the 4(d) rule by the City including the issues associated with the
City adopting a local "4(d) rule" ordinance.
RECOMMENDATION:
That the City Council direct staff to work toward resolving the issues identified in the staff
report, including working with the U. S. Fish "and Wildlife Service, California Department of
Fish and Game, and County of San Diego to revise the jurisdictional allocation formula for
interim take for Chula Vista, based on General Plan area or other acceptable method; and direct
City Staff, after resolving the issues, to draft an ordinance for implementation of the SpeciaI4(d)
rule at the local level.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
BacklZround
On March 25, 1993, the Federal government listed the California gnatcatcher as a threatened
species under the Endangered Species Act (ESA). Typically, any "take" (harm or harassment)
of listed species is strictly regulated by the U.S. Fish and Wildlife Service (USFWS), through
ESA Section 7 or 10(a) permits. A Section 10(a) permit is issued by the Service for a "take"
on private property when there is no substantial Federal involvement (i.e. a Federal permit).
"'/ ~ .?).2~ )?If
15-15; /5-30 ~.......Q.
~
Page 2, Item
Meeting Date 5/24/94
Section 7 is a consultation process with the Service for Federal projects or private projects that
require other Federal permits such as a 404 permit which is issued by the Army Corps of
Engineers for alteration of watercourses. In the case of the California gnatcatcher, the USFWS
signed a unique Memorandum of Understanding with the State of California Department of Fish
and Game (CDFG) to cooperatively develop conservation strategies for long-term protection of
coastal sage scrub (CSS), which is the habitat for the gnatcatcher and other sensitive species.
The State's Natural Communities Conservation Planning (NCCP) Act, passed in 1991, and its
ensuing NCCP program, have outlined habitat conservation strategies in two sets of guidelines:
NCCP Conservation Guidelines, and NCCP Process Guidelines, both fmalized in November,
1993.
On May 2, 1992 the City of City Chula Vista emolled in the NCCP. By emolling in the NCCP,
the City agreed to join in the collaborative planning process to conserve long-term viable
populations of the State's native animal and plant species by providing interconnected open space
areas while allowing compatible and appropriate development and growth. On August 24, 1993
Resolution Number 17229 was adopted by the City Council, approving the Resolution of
Intention (ROI) to participate in the San Diego Multiple Species Conservation Program (MSCP)
Plan. The ROI confirmed Chula Vista's continued participation in the MSCP and the future
conservation planning efforts for the California Gnatcatcher and other potentially threatened and
endangered species.
The implementation of the Endangered Species Act and the NCCP is a two step process. The
first step is the interim protection of CSS habitat through the Special 4(d) rule and the second
step is the adoption of the permanent conservation plan (MSCP). The MSCP is the functional
equivalent of the NCCP. By the previous actions taken by the City to emoll in the NCCP and
adoption of the ROI, we are part of the regional habitat conservation planning process and staff
is working actively toward its adoption.
On December 10, 1993, the USFWS formalized its relationship with the State's NCCP effort
by publishing the fmal Endangered Species Act Section 4(d) special rule, effective on that date.
The 4(d) rule allows local jurisdictions to approve "incidental take" of gnatcatcher habitat up to
a cumulative 5 percent loss of CSS during the period of time that subregions of southern
California are preparing conservation plans consistent with the NCCP program. Individual
project CSS loss is only permitted if a mitigation plan is approved.
The interim loss allowed through the 4(d) process can be approved only through procedures
outlined in the NCCP Conservation and Process Guidelines. These procedures are intended to
be integrated into the normal local land use process. Among other requirements, the NCCP
guidelines contain several findings that must be made by the City in granting the "interim loss
permit. "
/y/"
Page 3, Item
Meeting Date 5/24/94
It should be noted that without a jurisdiction adopting a special 4(d) rule process, incidental take
of listed species must be considered through ESA Section lO(a) on a case-by-case basis by the
USFWS, in a sometimes multiple-year process involving the preparation of Habitat Conservation
Plans by individual applicants. If there is a federal nexus, such as granting of another Federal
permit (Le. Section 404 permit), Section 7 can be used. These processes remain available to
applicants who do not elect to use the 4(d) or in the case of a jurisdiction that does not adopt a
4(d) rule.
Coastal Sal!:e Scrub Habitat in Chula Vista
The region of San Diego, which encompasses San Diego County, has a total of 227,437 acres
of Coastal Sage Scrub (CSS). Within the corporate boundaries of Chula Vista there are 2,143
acres of CSS. The 4(d) Rule allows for an interim "take" of 5% of the habitat. The interim
period will end with adoption of the NCCP which is anticipated to take at least 18 to 24 months.
Staff has met with the City's large landowners and the Special Districts that are within our
General Plan area. Based on the information they provided as to their needs in the next two to
three years, it is anticipated that approximately 300 to 350 acres of "take" may be needed during
the interim period to accommodate projects within the City, as well as approximately 100
additional acres for projects outside the City but within our General Plan area. (please note that
these estimates do not include information for Otay Ranch or Salt Creek Ranch, which will be
provided by the Baldwin Company prior to the Council meeting.) By way of comparison, if the
City's interim take allocation were limited to 5% of the existing CSS habitat within the City, the
total allowable take would be approximately 107 acres. Attached is a summary of the
anticipated projects and their planned "take" of CSS habitat.
Should Chula Vista Imolement the 4(d) Rule?
The following discussion addresses the positive and negative aspects of the City assuming the
responsibilities set forth in the NCCP Process and Conservation Guidelines, specifically,
adoption and implementation of the 4( d) rule at the local level. There are several issues that
must be addressed in determining if Chula Vista should implement a local 4(d) rule. The
advantages and disadvantages are detailed below.
ADVANTAGES TO ADOPTING AND IMPLEMENTING A LOCAL 4(d) RULE
1. Local Control of Land Use Decisions.
Implementation of the 4(d) rule would allow the City to approve "incidental take" of the
gnatcatcher up to a cumulative 5 percent loss of CSS. Should the City choose not to
assume this responsibility, during the interim period prior to adoption of an NCCP,
applicants wishing to develop property supporting the gnatcatcher would only be able to
15'/7
Page 4, Item
Meeting Date 5/24/94
do so if they received approval from the Federal government under Sections 7 or lO(a)
of the Act. A major advantage of a local rule is that it would allow the City to decide
which projects can proceed during this interim period, and work directly with property
owners to coordinate take permits with other plan approvals.
2. Timeframes
Should the City of Chula Vista adopt and implement a local 4(d) rule, the City would be
able to develop its own implementing procedures. The amount of time that would be
required for the City to take action on an application for loss of CSS habitat ("habitat
loss permit") will depend on where a project is in the planning and approval process at
the time of application for such habitat loss permit. However, it appears that a maximum
of 75 days would be required for the City to issue such a permit, in accordance with
State guidelines.
With regard to the Federal permit process, the USFWS is mandated to conclude the
Section 7 consultation process within 90 days of determining if the biological assessment
or other information is adequate and an additional 45 days to write the biological opinion.
This would result in a 135-day process. However, there is no limit on the amount of
time that can be required by the USFWS to determine that either the biological
assessment or other biological information is adequate in order to begin the consultation
process.
The Service indicates that there is not a mandated timeline for processing a Section 10(a)
application. Federal environmental documentation, which would be required as part of
the Section lO(a) process, usually takes 3 to 12 months to complete. The Service must
also undergo an internal Section 7 consultation process. The Service indicates that 10(a)
permits for very small and non-controversial projects (e.g., projects which involve
minimal take of occupied CSS habitat in an area not being considered for inclusion in a
permanent preserve system) can be processed in about six months. However, larger,
more controversial projects can require several years. Locally, the Least Bell's Vireo
Habitat Conservation Plans for the San Diego and Sweetwater Rivers were initiated
approximately six years ago and have yet to receive approval.
In summary, while the local interim take process may require up to a 75 day review
period, this is significantly shorter than the Federal permit process.
UNRESOLVED ISSUES RELATED TO THE ADOPTION OF A LOCAL 4(d) RULE
1. Occuoied vs. Unoccuoied Coastal Sal!e Scrub. The Endangered Species Act only
regulates impacts to listed species (i.e. the California Gnatcatcher). While the ESA
provides for a process whereby critical habitat for the species can be designated, this
If../y
Page 5, Item
Meeting Date 5/24/94
process only affects federal project approvals, and has not been utilized in the case of the
gnatcatcher. Thus, prior to adoption of the Special Rule, only projects which contain
occupied habitat are required to obtain permits under Sections 7 or 10(a) of the Act.
The Special Rule changes this result by referring to the Natural Community Conservation
Planning process which regulates gnatcatcher habitat (coastal sage scrub) whether
occupied by the species or not.
The City's data base is not sufficiently detailed to determine the number of acres of
occupied vs. unoccupied habitat. However, data collected by the consultants for the
Multiple Species Conservation Plan (MSCP) indicate that approximately 20% to 50% of
the Coastal sage scrub located within their study area may not be inhabited, or suitable
for habitation, by the gnatcatcher.
Implementation of the Special Rule would impose regulations on unoccupied habitat that
would not be imposed under Sections 7 and lO(a) of the Act, thereby requiring an
additional permitting step and mitigation for habitat that is not occupied by the species.
2. Risks Inherent in the City ImDlementinl! the Section 4(d) Rule.
Under the Endangered Species Act itself (in the absence of the Section 4(d) Rule), the
City would not playa primary role in implementing the Act on private projects. If an
applicant proposed to "take" gnatcatchers, that applicant would be required to obtain
permission (under either Section 7 or 10[a] of the Act) directly from the USFWS. The
USFWS would be the lead agency for all permitting and enforcement actions.
The Section 4(d) Rule, by referring to the NCCP Process Guidelines as an alternative
method of permitting a "take" under the Act, alters the above operation of the Act in two
significant respects: First, as noted above, the Guidelines expand protection of actual
gnatcatchers to protection of the coastal sage scrub habitat, thereby having a potential
effect of increasing the number of development projects subject to this new regulation.
Second, the Guidelines create a significant new role for local agencies, giving them
responsibility to issue "Habitat Loss Permits," with the attendant duty to determine
whether the amount of loss proposed is permissible under the Conservation Guideline
standards.
By allowing local governments to assume these responsibilities, local implementation of
the 4 (d) rule would place the City (rather than the federal agencies) in the "front line"
position of issuing approvals and denials of the habitat loss permits, with all the
consequences which may flow from such decisions. It can be expected that, due to the
Conservation Guideline limitations on the amount of coastal sage scrub habitat which may
be impacted, denials would occur in certain cases where the Act itself would not directly
have applied because of the absence of gnatcatchers. Such decisions by the City to deny
15-/1
Page 6, Item
Meeting Date 5/24/94
habitat loss permits, or to impose conditions, may well be legally challenged by
applicants, based on real or perceived loss of property rights, while decisions to approve
permits may be challenged by third parties. Given these risks, if directed by the City
Council to do so, we would work with the City Attorney's office to obtain some sort of
indemnification from the Service for the potential liability related to this issue.
3. Jurisdictional Allotment Formula.
Because the City of Chula Vista is part of a larger region in which gnatcatcher habitat
is found, there are several issues associated with implementation of the 4(d) rule at our
local level. These issues are outlined in an attached letter, dated April 25, 1994, to Gail
Kobetich with the U.S. Fish and Wildlife Service. These issues include the allocation
of the regional 5 % take under the 4(d) rule, specifically how much of the total regional
take will each agency be allowed to use, and who will make that determination. The
major issue is the selection of a formula for allocating the acreage of interim habitat take
to local jurisdictions. Both the City and County of San Diego, as well as several other
cities, have favored an allocation formula which is based on directly calculating 5% of
the total Coastal Sage Scrub habitat within each jurisdiction. With the City of San Diego
currently considering adoption of a Special 4(d) Rule ordinance that is based on the
jurisdictional take allocation, and with the County having adopted an urgency interim
ordinance for implementation of the 4(d) rule, also based on the jurisdictional allocation,
it appears that there may be de facto acceptance by the other cities in the County of this
allocation formula.
As noted earlier, there are several potential projects in Chula Vista and its General Plan
area involving CSS take, with total acreage of at least 400 to 450 acres potentially being
estimated during the interim period. However, under a strict jurisdictional take formula,
Chula Vista would only have approximately 107 acres available for allocation during this
period. In order to accommodate reasonable projections of development during this
period, staff has considered alternative allocation formulas which are more directly
related to consideration of habitat quality and locations of planned urban development
within the overall subregion. One specific alternative which staff feels has particular
merit is one wherein the City's General Plan Area, rather than its jurisdictional
boundary, would be utilized in calculating the available take. This approach would
provide greater flexibility to the City, resulting in the availability of up to 1,000 acres
on an interim basis. We have begun discussions with the resource agencies and the
County of San Diego regarding this concept and others.
The most immediate project that Chula Vista has coming forward that could be affected
by the 4(d) rule is Rancho del Rey SPA 1lI. McMillin has expressed a desire to staff to
be able to begin grading by September of this year. To that end McMillin has been
pursuing negotiating directly with the Service to determine what mitigation will be
/Y.1.~
Page 7, Item
Meeting Date 5/24/94
required for them to implement this project. It appears that McMillin will be purchasing
a large portion of O'Neal canyon, located south of Otay Valley, between the Donovan
Correctional Facility and Otay Mesa County Jail, to satisfy their off-site mitigation for
the loss of gnatcatcher habitat. This purchase represents a substantial cost to them.
Although other projects in Chula Vista have not progressed to that point as yet, it is
likely that others will have similar types of investment in mitigation land that McMillin
does.
4. Special Districts. Special Districts, such as water districts and school districts, are often
not required to get City discretionary land use approval for their projects. Therefore,
a Special District could conceivably use all or a portion of a local agency's jurisdictional
"take" allotment without approval from the affected local agency by going through the
Service for a Section lOa permit, or if appropriate a Section 7. The City of Chula Vista
does have the opportunity to comment during the environmental process on improvement
projects that the various Special Districts within our jurisdiction are proposing. If the
City adopts a local 4(d) rule, a Special District could go through the City for approval
of a "take" for projects within our boundaries, rather than using a Section IO(a) or
Section 7 process. There are a variety of Special Districts within the City's boundaries
including two school districts and two water districts. Staff has consulted with them
regarding possible projects they will be proposing in the next two to three years that
could be affected by Special Rule. Their anticipated projects are included in the attached
chart. It is possible that some of the Special Districts will initiate projects during the
interim period that could further reduce Chula Vista's jurisdictional allocation, beyond
the control of the City.
5. Mitil!ation Guidelines. In order to implement the NCCP Process Guidelines, the USFWS
is requiring that the subregions prepare mitigation guidelines that could be used for
habitat loss approvals. Approval of the proposed mitigation guidelines will have to be
received from the USFWS and Fish and Game prior to implementation.
RESOLUTION OF THE ISSUES
While there are significant advantages to the City in adopting a local interim take ordinance,
there are also several major unresolved issues. The key unresolved issue is the allocation
formula to be used in determining the amount of interim take acreage which would be available
to Chula Vista. It is recommended that staff be directed to continue pursuing the alternative
described above, which would be based on the City's General Plan Area boundary. In addition,
staff should be directed to continue working toward resolution of the other issues identified in
this report.
IY ..J./
Page 8, Item
Meeting Date 5/24/94
STATUS OF THE GNATCATCHER LISTING
On May 3, 1994, a U.S. District Judge voided the Interior Department's listing of the
gnatcatcher. The Interior Department has fIled a request for reconsideration of this decision,
as well as requesting that the listing be reinstated during the review of this appeal. Therefore,
while the listing is not currently in effect, it is staffs opinion that the City should continue to
pursue possible implementation of the 4(d) rule until this matter is resolved. Staff will continue
to monitor the status of the listing in this regard.
FISCAL IMPACT: Not applicable.
Attachments:
A. Propeny Owner Survey
B. Letter lO Gail Kobctich. U.S. Fish and Wildlife Service, dated April 25. 1994.
f:\home\planning\gnalCal..l13
/5,..2,)..
Anticipated CSS/Gnatcatcher Acres of Take
within the City of Chula Vista Prior to
Adoption of the NCCPIMSCP
Project css acreage to be Graded CSS acreage to be Graded in
in City in next 2 to 3 years General Plan Area (outside City
limits) in next 2 to 3 years
McMillin 256
Sunbow (Gafcon) 50
Otay Ranch (Baldwin) To Be Provided
Salt Creek (Baldwin) To Be Provided
EastLake 0
Watson Land Co. 32
Rancho San Miguel 35
Bonita Meadows (Buie 20
Development)
Lyndale Hills 7
Sweetwater Authority 0 0
Otay Water District 0 0.5
Chula Vista Elementary 0 0
School District
Sweetwater Union High 0 0
District
City of Chula Vista 20
(Miscellaneous)
Total 326 94.5
Note: Information based on survey cone ucted In May
(MARll YNlGNATCATCIGNA TCAT2.CHT)
May 18. 1994
15",2.J
~~~
~
~~~~
em OF
CHULA VISTA
PLANNING DEPARTMENT
April 2S, 1994
Gail Kobetich
U.S. Fish & Wildlife Service
2730 Loker Ave. West
Carlsbad, CA 92008
Subject:
Interim Habitat Loss Approval Process for Federal EndaT1gered 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 fonnal 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 this
possible method for allocating the region's 5% take.
We believe there are a variety of issues that must be resolved in cousidering bow 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 100a) from the U.S. Fish and Wildlife Service which the Service
may approve. These Section 7 or 100a) permits will count against the region's overall
5% take, and the jurisdictious' RCCC 4(d) allotment. Section 7 and 100a) approval from
the Service may exceed a jurisdiction's allotment and preclude the use of the 4(d) rule.
/'>"'~J/
276 FOURTH AVE/CHULA VISTA CALIFORNIA 91910/16191691-5101
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 al10tment 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 al10tment 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. Specifical1y, the adopted NCCP Conservation
Guidelines state that "recognizing that large subregions must meet the objective of
limiting short-term CSS losses on a biological1y 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.IO) 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 IJId 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 flISt considered for a "take" IJId that the rural areas
/5' .J5'
CITY OF CHULA VISTA
Gail Kobetich
Page 3
April 2S, 1994
containing high quality habitat should be preserved for the future plllnnil'\g 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,
Py;f !Jz-
Robert A. Leiter
Director of Planning
RAL:MRFP/nr
(J;\bome\plannina \kobetich .In)
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
r
J5~.;..t
CITY OF CHULA VISTA
~~
~""
Southwestern
CollEgE
Governing Board
Augia Bareno
G. Gordon Browning. D.MD
Jerry J. Griff~h
Maria Neves-Perman
Judy Schulenberg
Joseph M. Conte AUGUST 11, 1994
Superintendent/President
THE HONORABLE TIM NADER, MAYOR
CITY OF CHULA VISTA
276 FOURTH AVENUE
CHULA VISTA, CA 91910
DEAR MAYOR NADER:
ON BEHALF OF THE SOUTHWESTERN COMMUNITY COLLEGE DISTRICT GOVERNING
BOARD, I WANT TO EXPRESS APPRECIATION TO YOU AND THE MEMBERS OF THE
CITY COUNCIL FOR PARTICIPATING IN OUR JOINT MEETING.
THE GOVERNING BOARD HAS REQUESTED I INFORM YOU AND MEMBERS OF THE CITY
COUNCIL THEY HAVE UNANIMOUSLY REAFFIRMED THEIR POSITION TO LOCATE THE
PROPOSED TRANSIT CENTER AT THE NORTH-CENTRAL QUADRANT OF THE CAMPUS,
ADJACENT TO THE PROPOSED COLLEGE LEARNING RESOURCES CENTER. THE
GOVERNING BOARD CONSIDERS THIS TO BE THEIR FINAL DECISION ON THIS
MATTER.
PLEASE DO NOT HESITATE TO CONTACT ME IF YOU HAVE FURTHER QUESTIONS.
~
/SIN ERELY,
\..
\-'--
c~~
J SEPH M. CONTE
S PERINTENDENT/P~ESICENT
JMC:AR
CC: MEMBERS OF 'rHE GOVERNING BOARD
MEMBERS OF THE CITY COUNCIL
MR. JOHN GOSS, CITY MANAGER
MR. WILLIAM LIEBERMAN, MTDB
MR. KEN FITE, VICE PRESIDENT,
FISCAL AFFAIRS
MR. JOHN WILSON, DIRECTOR,
BUSINESS & OPERATIONS
900 Otay Lakes Rood. Chula Vista. CA 91910. (619) 4B2-6301 FAX (619) 421-0346. Southwestern Community College District
! ~---- 2.1
Jt:l'- /s
COUNCIL INFORMATION MEMO
August 16, 1994
SUBJECT:
The Honorable Mayor and City cof~,
John Goss, City Manage~ ~~
Bob Leiter, Director of Planning /~
Changes to the Draft Ordinance Amending the Municipal Code to Create A
Voluntary Take Permit Process (Item 15)
TO:
VIA:
FROM:
At the time your Agenda Statement was circulated the RCC minutes for this item had not been
finished. They have now been completed and are attached to this memo for your information.
On Thursday, August 11,1994, Staff received comments from the California Department ofFish
and Game regarding the proposed Ordinance for the Implementation of the 4(d) Rule. Staff did
not receive the comments in enough time to evaluate them and revise the draft ordinance and
Agenda Statement where necessary prior to the distribution of the matters to the Council. Due
to the urgency status of this ordinance, the time allowed for preparation of the draft ordinance
and for outside organizations to submit comments to the City was shortened from our normal
procedure. Staff has now reviewed the comments and recommends the following modifications
to the Draft Ordinance in response:
. References to a "Take Permit" have been changed to "Loss Permit" in order to be
consistent with the NCCP Guidelines.
. Section 17.30.010 has been modified to specifically state that the ordinance's purpose is
to adopt a process for issuing 4(d) Loss Permits for properties within the corporate
boundaries of the City of Chula Vista.
The remainder of CDFG's comments can be responded to without making changes to the draft
ordinance. Responses to their other comments are attached. Also attached is a revised draft
ordinance that incorporates the changes suggested by CDFG.
Just prior to distribution of this information item, the Sierra Club faxed their comments on the
draft ordinance. These comments are attached for your information, although staff has not yet
had the opportunity to review and respond to them.
Attachments:
RCC Minutes - August 8, 1994
Draft 4(d) Loss Permit Ordinance
Letter from Department of Fish & Game dated August 10, 1994
Responses to Department of Fish & Game letter
Sierra Club, San Diego Chapter Letter dated August 16, 1994
(0: \mariIyD'cDak:aIch\ccuocil.mcm)
IS-.Q8"
MINUTES OF A SCHEDULED REGULAR MEETING
Resource Conservation Commission
Chula Vista, California
6:30 p.m.
Mondav. AUlrnst 8. 1994
Council Conference Room
Citv Hall Buildinl!
CALL MEETING TO ORDER/ROLL CALL: Meeting was called to order at 6:45 p.m. by
Chairman Burrascano. Present: Commissioners Burrascano, Kracha, Hall, Guerreiro. Absent:
Johnson, Ghougassian, Myers. Staff: Assistant Planning Director Ken Lee, Consultant Marilyn
Ponseggi.
Members advised that they had not received their regular packets through the mail, although
each had received the hand-delivered information regarding agenda item #1. Chair Burrascano
noted that they would therefore be unable to take actions on items #2 and #3.
APPROVAL OF MINUTES: No minutes were approved due to insufficient members present.
NEW BUSINESS:
1. Implementation of the Endangered Species Act Special Rule 4( d) for the Interim Habitat Loss
Approval Process
Staff Presentation
Environmental Consultant Marilyn Ponseggi reviewed the listing of the gnatcatcher as a
threatened species, as well as the special 4( d) rule which regulates the taking of coastal sage
scrub. She advised that in conjunction with the NCCP, the 4(d) rule allows a "take" of up to
5 % of the regional Coastal Sage Scrub (CSS) habitat. Ms. Ponseggi stated that for Chula Vista
to implement the 4(d) process, it must first enact an ordinance providing for the process which
is proposed to become a part of the City's environmental review process, with the additional
findings called for under the NCCP for take permits. She stated that the Director of Planning
would be authorized issue 4(d) permits as part of the overall project decision. The Director
would issue the permit just prior to grading on a project.
It was also noted that provisions for pipeline projects had been included in the proposed
ordinance. Ms. Ponseggi stated that pipeline projects must show how they are meeting the
findings for the 4(d) permit. In most cases the 4(d) permit would be implementing the EIR and
mitigation measures, perviously adopted for the project. Ms. Ponseggi noted as an example that
Rancho del Rey has purchased some 400 acres of O'Neal Canyon as off-site mitigation for the
project impacts to CSS.
Ms. Ponseggi stated that the ordinance would be taken to Council as an urgency ordinance
which, if approved, would take affect immediately. She discussed the Rancho del Rey project,
indicating in part that land intended for schools, parks, and infrastructure was to be turned over
by Rancho del Rey as part of previously approved plans. The school districts, however, would
only accept land that has been cleared, resulting in the need to address the clearing issue within
15- 52!
RESOURCE CONSERV A nON COMMISSION
-2-
AUGUST 8. 1994
an upcoming biological window.
Member Ouestions/Discussion
Commissioner Hall asked if the 5 % take was a figure for the region; Ms. Ponseggi stated that
there are 11,000 acres countywide available for take, and the City's contention is that the figure
is regional as defined by the NCCP. She added that many other jurisdictions have adopted a
4(d) rule without using specific figures.
Ms. Ponseggi further pointed out to commissioners that the 4(d) process is an alternative to the
much lengthier 10(a) process; she stated that applicants could still, however, go to the Fish and
Wildlife Service and utilize that process instead.
Commissioner Burrascano asked if the definition of take included grazing; Ms. Ponseggi stated
that it would, in her opinion, as the issue is destruction. Ms. Burrascano questioned the issues
involving disturbed habitat, and asked if a map of habitat areas would be included; Ms. Ponseggi
explained that habitats of differing quality would result in differing mitigations, and stated that
the map was not yet final.
Ms. Ponseggi reiterated that this is an interim process only, for a period of two years. She also
stated that mitigations discussed were straight out of the NCCP.
Commissioner Burrascano asked how much coastal sage scrub is affected by pipeline projects;
Ms. Ponseggi stated that 800 acres are affected.
Commissioner Guerreiro asked if the urgency was to provide for faster project processing; Ms.
Ponseggi stated that it would help with this. Mr. Guerreiro asked where the boundaries of the
5% area are, and who determines them; Ms. Ponseggi stated that 5% is a regional number and
is the entire County.
Commissioner Hall stated that she found the finding regarding necessity to "preserve public
health and safety" somewhat farfetched. Ms. Ponseggi pointed out that in the case of Rancho
del Rey, they are scheduled to turn land over to the school district this year, which they cannot
do if the land is not cleared; this would fall within the category of public health and safety.
Commissioner Kracha asked if a City ordinance should refer specifically to a project (e.g.
Rancho del Rey). Assistant Planning Director Ken Lee noted that this was probably on the
advice of the City Attorney. Ms. Ponseggi stated that urgency ordinances must be very specific,
adding that some of the fmdings have already been read into the record at the City Council
meeting.
Motion/second (Kracha/Hall) (3-1, Guerreiro opposed) to recommend approval. Motion failed.
Commissioner Guerreiro stated that he cannot support anything that accelerates development in
the City.e
I s--/.3o
ORDINANCE NO. ...1&Od
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA AMENDING THE MUNICIPAL CODE TO
CREATE... A ...VOLUNTARyg@~$;'~~~~1!!€gBW$\g~$f
'l'AAB H911ls PERMIT PRbC-gSSS~C':tlONEIYtrnD~~
SECTION 4 (d) OF THE ENDANGERED SPECIES ACT
ALTERNATIVE TO THE PROCESS PERMITTED UNDER
SECTION 10(a) OF SAID ACT.
Whereas, in March, 1993, the Federal government listed the
coastal California Gnatcatcher as a threatened species under the
Endangered Species Act of 1973 (16 U.S.C. ~ 1531 et seq.,
hereinafter, the "Act"). The Act makes it a violation of federal
law to carry out any activity which will result in a take of the
species. "Take" of the gnatcatcher, broadly defined in the Act to
include harm to or harassment of the species, is prohibited.
Whereas, The U.S. Fish and wildlife Service has promulgated a
special rule under Section 4 (d) of the Act, which will allow
incidental take of the species if it results from activities which
are conducted pursuant to either: (1) the State of California's
Natural Communities Conservation Planning Act ("NCCP") and in
accordance with an approved NCCP plan prepared consistent with the
State's NCCP Conservation Guidelines and Process Guidelines; or (2)
(during the period that such an NCCP plan is being prepared), the
NCCP Conservation Guidelines and Process Guidelines published by
the California Department of Fish and Game, if within an area under
the jurisdiction of a local government agency which is enrolled and
actively engaged in the preparation of an NCCP plan. This special
rule became effective on December 10, 1993.
Whereas, the NCCP Conservation Guidelines and Process
Guidelines call for the regulation of all coastal sage scrub within
the region, and establish a planning process for the protection of
this habitat. The Guidelines further provide a process for
issuance of habitat loss permits which local government agencies
may adopt. Because the City of Chula Vista has formally enrolled
in the NCCP process and is actively engaged in the preparation of
an NCCP for the protection of Coastal Sage Scrub within the area
under its jurisdiction, under the special rule promulgated under
Section 4(d), incidental take of the gnat catcher would not be a
violation of the Act if authorized by a habitat loss permit issued
by the City pursuant to the NCCP Conservation Guidelines and
Process Guidelines.
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 1
! ')<3/
Whereas, without such a habitat loss permit process under
Section 4(d), no development of habitat occupied by the gnatcatcher
may occur unless authorized under section 7 or 10(a) of the Act.
Sections 7 and 10(a) set forth a permitting process which can take
several years to complete. Failure to adopt a habitat loss permit
process, thus requiring that proposed land development applications
proceed under Section 7 and 10 (a) processes, would halt all
progress of development of occupied habitat in the region for a
substantial time.
whereas, sections 7 and 10 (a) of the Act only regulate
occupied coastal sage scrub habitat. The NCCP process contemplates
protection of all coastal sage scrub habitat, which will result in
protection of many species in addition to the coastal California
Gnatcatcher.
Whereas, Regulation of impact to coastal sage scrub within the
City is necessary immediately because the Section 4(d) rule allows
only 5% of all coastal sage scrub remaining in the region to be
disturbed. until the requirements of the ordinance are imposed,
Coastal sage scrub unoccupied by the gnatcatcher will continue to
be disturbed, posing a serious threat to the viability of the NCCP
plan and foreclosing the City's option in prioritizing projects for
the public peace, health and safety. The preservation of the
public peace, health and safety requires that projects which impact
Coastal sage scrub be reviewed in terms of impacts to this regional
resource, not individually.
Whereas, adoption of this ordinance is necessary on an urgency
basis to eliminate the need for and the delays in costs of
procuring incidental take permits under Section 7 or 10(a) of the
Act on an individual project basis. The preservation of the public
peace health and safety require that development in the region
proceed with a reasonable degree of certainty.
Whereas, the emergency action is necessary to adhere to very
specific biological time periods with respects 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 could result
in delays of one year or longer to the construction of the Rancho
Del Rey Junior High/Middle School, adjoining community park, and
other desired public facilities which would serve both existing and
future residents of this area.
Whereas, 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, 1994)
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 2
I ') . 31-
which is a keystone property within the regional open space
preserve system. Close of escrow and resulting property
preservation is tied to the immediate enact ion of the 4(d) rule.
Failure to enact the 4(d) rule could result in the loss of valuable
habitat.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA
DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Chapter 17.30 ("Interim Coastal Sage Scrub Habitat
Loss Permit Process") is hereby added to the Municipal Code, which
Chapter 17.30 shall read as follows:
"Chapter:
17.30 - Interim Coastal Sage Scrub Habitat Loss Permit
Process
Section 17.30.010
Purpose and Intent
It is the purpose of this section to implement, on an interim
basis, a process that would allow the City of Chula Vista to issue
permits for the takirl'Fl......(d~~;~~?~};:?i:r~c..~}?:>:>)?~C?~:>t~l..~}':ge
Scrub. (CS S)habi tat, ji!:j#f!wn.!!iPi'i$8PPRPi!l~i'iP8B*qi!lW~!ii!i!9%9.nlilq;i;P:Y9#
!:iB'!I,ffi:M*~*j:l,! as an alfeinafivefO.....the...exisfirig .mi:indi:ifof'ipioCess
pfesciibeounder Section 10 (a) of the Endangered Species Act.
This process is intended to implement, on a voluntary basis,
the provisions of the State of California Natural Community
Conservation plan Act and the United States of America Endangered
Species Act of 1973, as amended, and as it related to 50 CFR 17.41,
incidental take of Coastal California Gnatcatcher.
Section 17.30.020
General Authorization
As a voluntary alternative to those government agencies,
public utilities, or persons wishing to process a "take" of Coastal
Sage Scrub located within the annexed territorial limits of the
City of Chula Vista, who prefer not to process an Endangered
Species Act (ESA) Section 10(a) permit directly through the United
States Fish and Wildlife Service (USF&WS), the City of Chula vista
may use its Land Use regulatory authority along with cooperative
agreements and other authorities granted in cooperation with the
State of California through the Natural Communities Conservation
Planning (NCCP) Act, Southern California Coastal Sage Scrub
Program, and the United States of America Endangered Species Act
(ESA) authorization for incidental take of the Coastal California
Gnatcatcher (Potiaptila Californica Californica) for activities
conducted under the authority of the State of California NCCP
pursuant to 50 CFR 17.41. Those government agencies, public
utilities, or persons wishing not to process a 4(d) Take permit
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 3
/1]-33
through the City of Chula Vista may process a Endangered Species
Act (ESA) 10(a) permit directly through the USF&WS.
Applicants wishing to pursue a 4(d) Take Permit through the
City of Chula Vista shall agree to indemnify the City of Chula
Vista, its officers, employees or agents in a form acceptable to
the City, release the City of any and all liability for, and waive
any and all claims against the City, its officers, employees or
agents for exercising its authority provided including any claims
for eminent domain or inverse eminent domain, and any loss that may
be suffered as a result of implementing or conditioning a 4(d) Take
Permit.
The Director of Planning of the City of Chula Vista shall be
responsible for issuance of 4(d) Take Permits in accordance with
Section 17.30.052 through 17.30.054.
Section 17.30.040
CSS "'PaJreJJ6!is" Defined
when used in this Chapter, "~+9.l'i$" of or "taking" Coastal
Sage Scrub shall be deemed to occur if.alTor any part of the plant
community which constitutes Coastal Sage Scrub is directly or
indirectly, intentionally or unintentionally, destroyed or
disturbed in a manner that could impair the continued survival of
any plant which constitutes a part of the plant community.
Section 17.30.045
"Coastal Saoe Scrub" ("CSS") Defined
A natural community of plants approximately located on or
within 15 miles of the Southern California and northern Baja,
Mexico Pacific Ocean coast line which provides or is capable of
providing habitat (flying, breeding, nesting, nurturing, foraging
or dispersing areas) support for the California Gnatcatcher,
including but not limited to the following characteristic species
of plant:
. California sagebrush (Artemisia californica)
. Several species of sage (Salvia mellifera, Salvia
leucophylla, and Salvia apiana)
. California encelia (Encelia californica)
. Brittlebush (Encelia farinosa)
. San Diego sunflower (Viguiera lacinata)
. Buckwheats (including Eriogonum fasciculatum and
Eriogonum cinereum)
. Evergreen sclerophyllous shrubs such as Malosma laurina,
Rhus integrifolia, and Rhus ovata
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 4
(5 - 34
Section 17.30.050
coastal Sage Scrub (CSS) 'l'a*e tiSiiJiil Permit
Process
General Coastal Saoe Scrub (CSS) 'Fake boSs
Process
Section 17.30.051
Any ~+R~iii of CSS done pursu,ant to this Chapter shall
require an advance written permit ("~ $g~~ Permit") from the
City issued pursuant to the requirements and conditions of this
Chapter. If an appliC:<>.I1:t chooses to obtain authorization by
procesb~ng a 4(d) ~ ?9~iii permit through the City of Chula Vista,
rather than processing an Endangered Species Act Section 10(a)
permit directly through the USF&WS, the issuance of the ~ ~*~
Permit shall be coordinated with other permit processes of the City
of Chula Vista, as provided for in Section 17.30.060; and be
subject to the making of findings as provided in Section 17.30.070
of this Chapter; be issued conditional on the mitigation of any
~+R~\:i as provided in Section 17.30.080; and be coordinated with
other agencies such as the California Department of Fish & Game
(CDF&G) and united States Fish and Wildlife Service (USF&WS) and
the giving of appropriate notices as provided in Section 17.30.090.
Section 17.30.052
Adoption of Sensitive Habitat Map
For the purposes of this Chapter, the City Council of the City
of Chula Vista authorizes the Director of Planning to certify an
NCCP Sensitive Habitat Map for the Planning boundaries of the City
of Chula Vista and adjacent area. Said map shall be used, in part,
for determining those project sites that shall be subject to the
4 (d) ~ ljp $ 1ii. Permit Process.
Section 17.30.053
'f.aire
Permit Application Process
A. Application.
1. Projects Not Previously Entitled.
For projects which, at the time of the adoption of this
ordinance, have not received all previous entitlements to proceed,
and have not submitted all required information and data in order
to permit the City t()grant entitlements to proceed except for the
issuance of a 'f.aire t!p~~.permit ("Non-Pipeline Projects"), in order
to obtain a 'f.aire~\:i~ Permit, an applicant shall submit an
application to the Director of Planning, on such form or forms as
s/he may prescribe, but which, at a minimum, shall require
sufficient project information to enable the Director to make the
Required Findings, set forth below, and to allow environmental
processing pursuant to the California Environmental Quality Act
(CEQA). The application shall include information which clearly
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 5
1'5-340..
identifies existing habitats by type, and the ultimate envelope of
habitats to be impacted by the project. An assessment of existing
biological resources, and analysis of project impacts and proposed
mitigation measures must be included. The biological information
submitted shall include a biological assessment prepared for the
proj ect site in conformance with the State of California NCCP
Scientific Review Panel (SRP) field survey guidelines, or a
methodology accepted by the California Department of Fish & Game
(CDFG) as equivalent. In addition, these assessments must follow
the guidelines established by the City of Chula Vista Environmental
Review Procedures. The biological assessment shall determine the
CSS value (high, intermediate or lower) as indicated in areas
designated by the Sensitive Habitat Map referred to in Section
17.30.030.
An application for a ~ !ii8*~ Permit shall include completed
City application forms, includirigah Initial Study Application; and
the number of sets of project site and development plans determined
by the Planning Department to be adequate. The plans will clearly
identify existing habitats by type and the ultimate envelope of
habitat to be retained or impacted; required environmental
documentation addressing 4(d) permit findings and proposed
mitigation; and any applicant-proposed mitigation program or
measures to satisfy ~ @g*~ Permit requirements. This is in
addition to materials whichinay have been submitted for other
project permits.
Projects requiring a 4(d) permit can apply for said permit
simultaneously with their other discretionary permit actions or in
the case of small proj ects and previously approved proj ects,
simultaneously with grading permits. The 4(d) permit can also be
applied for separately prior to other permits, but in no case can
a development permit be issued prior to a required 4 (d) permit
approval.
A project applicant shall submit a mitigation plan that
demonstrates that the project is consistent with the findings
required in Section 17.30.070. The project must demonstrate
capacity for funding appropriate mitigation, and mitigation must be
legally assured. Habitat acquisitions and set-asides, when used,
should occur in areas with long-term conservation potential. Any
fees paid for habitat mitigation shall be maintained in an
appropriate fund, dedicated to habitat mitigation, and separate
from other development impact or other City funds.
2. Previously Entitled Projects.
For projects which, at the time of the adoption of this
ordinance, have received all previous entitlements to proceed, or
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 6
().Jj
have submitted all required information and data in order to permit
the City to ~.1:"~nt entitlements to proceed except for the issuance
of a 'I'a*e !4B*~ Permit (" Pipeline proj ects"), the Director is
authorized tCi.waive any of the application requirements set forth
above in subsection A.1. to the extent the information so waived is
otherwise available to the Director in environmental and planning
documents already in the possession of the City.
B. Fees.
The applicant for a 'I'a*e ~~.~ Permit shall pay such fee as the
City determines is sufficient ECipermit the recovery of its cost of
reviewing and granting same, as such fee is set forth in, and from
time to time modified in, the City of Chula Vista Master Fee
Schedule. Until such a fee is established by the City Council in
the Master Fee Resolution, the fee shall be determined by the City
Manager, or his designee. Said fee shall be estimated by the City
at the time a completed application for a 'I'a*e tl#9$i# Permit is
submitted, and the applicant shall deposit the amount of said
estimate with the City upon submittal of the application. The City
shall not process an application for a 'I'a*e %l9~~ Permit until the
required fee deposit has been made. The City staff shall charge
its time and expenses against the deposit. If the City determines
that the deposit is, or is likely to be, inadequate during the
processing of the application, the City shall notify the applicant,
and unless the deposit is supplemented by an additional deposit,
the City shall terminate processing of the application. No 'I'a*e
tl#9$iS Permit shall be issued until all required fees have been paid.
Any excess deposit after payment of the fees shall be returned to
the applicant.
C. Review of Application.
After the City has determined that the application for a 'I'a*e
l\6~$ Permit is complete and the required fees or deposit for fees
has been made, the City, through the Planning Director, shall
initially determine if the Property has CSS thereon, and the
amount, by acreage, which is proposed for loss under the requested
'Falre pq$~ Permit.
D. Required Findings.
If the Director determines that the Property contains CSS, the
Director shall determine if the following findings (" Findings") are
true:
1. The habitat loss, as proposed for issuance under
the 'I'a*e ;;q~i!i Permit, is consistent with the
"interim loss criteria" in the November, 1993 State
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 7
1)-,3'
Natural Community Conservation Program (NCCP)
Conservation Guidelines (as specified in items a.
throu$fI"1...d. below) and, if a subregional interim
~*R!ii1'1 process is established in a form approved
by the City of Chula Vista at the time of the
issuance of the 'ffi*e #9$$ Permit, consistent with
such approved subregional interim ~ %qiSi~
process.
a. The habitat loss, under the 'ffi*e :tl9$~ Permit
as proposed by the Director for issuance, will
not exceed on the date of issuance, when
considered cumulatively with all other loss of
CSS occurring since March 21, 1993, exceed 5%
by acreage of the then existing CSS within the
region.
b. The habitat loss, under the 'ffi*e @9$$ Permit
as proposed by the Director for issuance, will
not preclude connectivity between areas of
high habitat values.
c. The habitat loss, under the 'ffi*e ~R~~ Permit
as proposed by the Director for issuance, will
not preclude or prevent the preparation of the
subregional NCCP.
d. The habitat loss, under the 'ffi*e :Lass Permit
as proposed by the Director for issuance, has
been minimized and mitigated in accordance
with Section 4.3 ("Interim Mitigation") of the
"Southern California Coastal Sage Scrub
Natural Communities Conservation Planning
Process Guidelines, dated 11/5/93, and
thereafter, to the maximum extent practicable.
2. The habitat loss will not appreciably reduce the
likelihood of the survival and recovery of the
Coastal California Gnatcatcher (Potiaptila
Californica Californica) .
3. The habitat loss is incidental to otherwise lawful
activities.
4. Proposed mitigation is consistent with NCCP Process
Guidelines requirements.
E. Preparation of Draft Findings, and Proposed Terms and
Conditions (including mitigation measures) .
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 8
Ie:; - :3 7
If the Director determines that the foregoing Findings are
true, s/he shall use his or her discretion in granting a ~ j:j9i'i~
Permit, and in doing so, may consider, among other things deemed
appropriate, the following:
a) The CSS on-site is not dense or classified as high
quality;
b) The CSS on-site is not in proximity to a high
quality CSS stand; and,
c) The CSS on-site is not located in a corridor
between higher value CSS stands
If the Director resolves to issue a ~ pq$@ Permit, s/he
shall prepare draft written findings, and such proposed terms and
conditions, including mitigation measures, s/he deems appropriate
upon which to issue the ~ :&Q$$ Permit ("Draft ~ l::M:i$i$
Permit" )
F. Resource Agencies Review of Certain Pipeline Projects.
For Pipeline Projects which have already undergone CEQA review
and no change to the I?:r.-?ject design/Permit are reQ'7+:r.-ed in order to
issue the Draft ~ H8~~ Permit, the Draft ~ @Ailli:l Permit shall
not be issued for a pe:dod of 30 days ("I<~viewPeriod") after a
l'<?t.ice of Availability of the Draft ~ Ji!8~m Permit and Draft ~
l;!Q$$ Permit (including findings and intent to issue) has been
disfributed to the San Diego Association of Governments (SANDAG)
and the California Department of Fish & Game ("CDFG") and the u.S.
Fish and wildlife Service ("USF&WS") (the latter two of which
shall, when referenced together, shall collectively be referred to
as the "Resource Agencies") No additional review by the general
public, or public hearing and noticing of the public will be
required.
SANDAG shall, during the first 15 days of the Review Period,
have the opportunity to review the Draft ~ li8~~ Permit to verify
that the proposed habitat loss does not. e.xceed the maximum
permitted habitat loss for the subregion.
The USFW&S shall, during the ...Review Period, have the
opportunity to review the Draft ~ ;9gm!1i Permit and to notify the
City whether, in their opinion, the prOject and mitigation program
are inconsistent with the Conservation Guidelines. If the USF&WS
opines that the proposed ~ j:jQW* Permit is not consistent with
the Conservation Guidelines, thEiyshall have a maximum of 60 days
after notification of their opinion of inconsistency to consult
with CDFG and provide recommendations to the City for modifying the
Draft ~ $$$$ Permit (including modifying the project or terms
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 9
/5-Ji
and conditions of the ~
inconsistency.
Permit), to eliminate the
If USF&WS responds that
consistent with the Conservation
the Review Period shall end at
response or the first 15 days of
the Draft 'Fa*e lli6\il\il Permit is
Guidelines in less than 30 days,
the later of the date of such
the Review Period.
If SANDAG confirms that the regional cumulative 5% habitat
loss is not exceeded and if no notification is provided by the
USF&WS within the above-noted 30 days, the proposE~ habitat loss
shall be deemed approved and the 4(d) permit shall be granted.
G. Public Review.
For Non-Pipeline Projects, the Director of Planning (or his
designee) shall provide the public agencies listed in subsection F.
above with the same review rights as set forth therein for the same
Review Period, and in addition thereto, shall make the Draft ~
~~.~.~ Permit, including the findings, terms and conditions,
available for public review as part of the environmental review
process.
H. Inconsistency with Guidelines.
The Director shall either include such recommendations
required by the USF&WS in the Draft ~ Rfi.m$ Permit, or shall not
issue the ~ Permit.
I. Issuance of Permit.
The Director may issue the Draft ~ B8:\1~ Permit in the form
as modified by the requirements of the US t:'&'VIS, subject to such
additional terms and conditions as he deems appropriate resulting
from the application and review process, including, but not limited
to the following conditions:
1. The ~ 14&iii$ Permit shall be issued only when
development is emInent, and shall automatically expire
six (6) months from issuance unless, in the opinion of
the Director, substantial site work or other site
development activities have not commenced. The Director
is authorized to extend the termination date of the ~
fl1i9~iii Permit if requested by the applicant, but not for a
period of time greater than six (6) months from the
termination date of the originally issued ~ ~iii~
Permit, and then, only if the Director determines that
the findings, terms and conditions on which the ~ B8~.~
Permit was originally issued still apply, the needrcir
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 10
I S- 3,
the extension is due to circumstances beyond the control
of the applicant and that development will likely proceed
prior to the expiration of the extended time period.
Section 17.30.102
Grant of .!ffiJre A8~~ Permits by Fire Marshal
Without complying with the requirements of this Chapter or
Section 10 (a) of the Endangered Species Act, or the rules and
regulations promulgated thereunder, the City of Chu~~yista Fire
Marshal is authorized to take CSS or to issue a .!ffiJre ~~~ Permit to
a property owner to take CSS where it is necessaryJ.nhis or her
opinion to mitigate an extreme fire danger that threatens humans or
structures occupied or capable of being occupied by humans, and
then only to the extent necessary to mitigate such danger, but in
no event more than 30 feet from any property line. In such cases,
only thinning and pruning of CSS habitat will be allowed.
Section 2. The City Council does hereby find that, based on
the facts set forth in the recitals hereto, this ordinance is
necessary as an emergency measure for preserving the public peace,
health, safety, and general welfare, and may be introduced and
adopted at one and the same meeting if passed by at least four
affirmative votes.
Presented by:
Approved as to form by:
Bruce M. Boogaard
City Attorney
Robert A. Leiter
Director of Planning
Interim 4(d) Rule CSS Loss Ordinance
Revised August 16, 1994
Page 11
(5-1[0
~i~.~~~~~~I. r.~~
,
f1u1/1
/ . . "J' IY)
s....n <.:if CALIf9tNlA-.TM! lI.f~OURCI$ I\GINCY
...
~. ,
pue W:LSCN. a"..,1'IOt
-
-
~-
DEPARTMENT OF FISH AND GAME
141. 1'IINTf1 $TlII!
. t) MI' o.u:u....
ueU,..,EHTO, CA ..2.44-2090
(916) 653-9767
/)
i)
@
A\lq\1f1't 10 I 1994
Mr. Robert A. Laitar
Director of Plann1nQ
276 Fourth Avenue
chula Vista, california 91910
Dear Mr. Leitarl
City of Chula Vista 4(d) Ordinance
Oepartment of Fish and Game staff of the Natural Co~uniticG
Con.ervation Planninq (NCCP) program has reviewed the referenced
docunent, for whioh the City reque~ted comments by Auqust 9, for
inolusion 1n it. staff report prior to city council action on
Auquct 16. The draft incorporates moat of the conc.rn8 of the
tilh and wildlife agencies. O~r specific comment~ on the draf~
tollow.
paqe 3-and tollowing referenoes, partioularly Seotion
17.30.040, replace "CBS take" with "CSS 10sl" throyqhoyt the
document. The term "take'l i. limited to QP~oies-specitic
action",
Paqe 4 (Section 17.30.04~) derines coastal saqa scr~~ (eSs)
by location and it. relation.hip a~ habitat that supporta
California Qnatcatcher. This definition 15 pr~sQntly incomplete
in the ~raft we reviewed, as it lacks the species list. A useful
term is that used in the City of San Diego'S 4d ordinance,
"CoAstal saqe sorub habitat." Coastal saqe scrub habitat i~ a
veqetation co~unity co~posed of rllatively low-growing, summer-
deciduous and succulent plant.. Characteristic plants of this
oommunity include California saqebrush, various speoies of true
.egea, California bUCKwheat, lemonadeberry, priCkly p.~r, and
cholla oaotus. Coastal sage scrub is the more q~neral name for
v~qQtation communities also known al m~ritirne sucoulent sorub,
Dieqan and Riversidaan sage scrub, southern coastal bluft scrub,
inlan~ .sq. scrub, alluvial .a18 scrub, and mixture. of
vlqetation communities contalninq ooastal saq. icr~b Qle~ents and
providinq California qnatcatchlr habitat.
1')- 41
J .
3)
1)~
,~
~~~.~~~l~l(~ ~.~~
.'
~r. Robert Leiter
Augult t, 1994
Paql TWO
Pail 5 (!laction 17.30.0~3) whoulll cle.dfy th!\t tho ol:;.;linan'a
is restricted to city's actual boundary, n~t plannlnq ~rea or
sphere ot influence (unless the othwr affected ju~isdiotions
8peo1f1ca~~y e~ree to th1B).
paq. 6 (Slction 17.3Q.053, B) would be cla~iti.d by
specifyinq how the city will Ild<.lr:ess "pipeline" projeot!!1 thb
slction now states only that these projects will not need
additional information (to make a 4(d) determination) if their
prev1ou. projQct documentation wes suCricient to maKe e 4(d)
findini. This seotion should specify how th~ city will address
the adequacy of these projects; and, if found inadQquate, what
w1ll the City do to Insure th.1. dae~UQcy?
~J Paql 1 (Section 17.30.053, O.l,b) would be clarified by
~~tatin9 tnat preclU~in9 connect1v~~~ b=tween ar.~~ of higher
habitat value may reqUire the ~onservation of habitat that is
, - rated as ~ntlrmediat. or even lower value when evaluated ~~inq
the NCCP quidaL1nll. Aleo, the kin~s ur mitiqatione required for
habitat losses need more specificity (miti9ation ratios o~
.ilDilar) ,
paqe 8 (s.ction 17.JO.O~3, E) would be clarified by stating
that the i.suance of "4(d) FindlnQs" precedes the issuance of a
"4(d) interim habitat 10$S permit,. ~na th~t findin9~ could b.
made tor projects that total more than the 5\ CSS habitat 101s.
Section "1" should then oladfy that 4(d) loss permit!; would be
limited to those imminent projects, uv to the ~'li~i~. ~he oity
could epprove findin98 tor ~ore projects than woulo receive final
4(d) permitsl it would have to condition its finQing~ that the
final p.:nn~t to c.l.ear CI:lI:l woul" be Flradio4\tlllll upon the. faet that.
the oity had not issued loss permits exceedin9 the 5% loss.
to)
7)
Paga 10 (Section 11.30.1U2) would be cliuH1ed by imHeating
how the hlanket exemption to cllar CSS for fire safety will
address the pOllibility of endangered species, and provide
notification of the Wilt11ita agencies to ~vold \j1l/1utho~-hod telke..
Please cont~ct Mr. Bill Tippets, NCCP Field Supervilor,
888SRio San Diego Drive, Suite z1v, San 01~90' C~lltQrnia .2109,
(619) 688~4261, it you have any queetiQnl spout these OO~~Qnta.
Cg'. a.. next pa9-
(5-41-..
Mr. Robert Leiter
~uq\\,t 9, 19\'4
Page !l'hroo
001 Oopertmant of Fish and Game
Mr. Fred Worthley
Lcn'iJ Beach
~
Mr. Bill Tippets
San DieljJo
U.S. FiSh and Wildlife Service
OClrletlClcS
Mr. Gail Kobetioh
Ms. Nanoy Oilbert
"'
{5-43
.,.......TQ' ~ I":l"
RESPONSES TO DEPARTMENT OF FISH AND GAME LETTER
DATED AUGUST 11,1994 REGARDING 4(d) ORDINANCE
Comment 1: The Draft Ordinance has been modified to referred to "Loss" permits rather than
"Take" permits.
Comment 2: Section 17.30.045, of the Draft Ordinance does include a list of the plant species
typically associated with CSS habitat. The version sent to CDFG for comment was not fInalized
and did not include the species list.
Comment 3: Section 17.30.010 has been modifIed to specifIcally state that the ordinance's
purpose is to adopt a process for issuing 4( d) Loss Permits for properties within the corporate
boundaries of the City of Chula Vista.
Comment 4: Section 17.30. 053B refers only to the application materials required for "Pipeline"
projects. It does state that the Director of Planning may waive the requirement to submit certain
application materials to the extent that the information contained in those materials are available
in the documents previously submitted to the City for the original project approvals.
Comment 5: Section 17.30.053 (D.1.b) is taken directly from the NCCP Conservation
Guidelines. As stated in Section 17.30.010 the ordinance is intended to implement the
provisions of the NCCP and the NCCP Guidelines are referred to or quoted directly throughout
the draft ordinance.
Comment 6: Section 17 .30.053 (E) addresses the preparation of the Draft Findings for a 4(d)
Loss Permit. The fIndings in Section 17.30.053 (D) address the 5% limit for loss permits.
Under the provisions of the ordinance, it is possible that after draft fIndings have been prepared
and circulated for a 4( d) Loss Permit that by the time the applicant is ready to implement
grading and exercise the 4(d) Loss Permit issued, the 5% limit may have been reached and the
Draft Findings are no longer valid.
Comment 7: Regarding Section 17.30.102, the fmal Draft before your Council includes a
provision for the Fire Marshal authorizing Loss Permits only for pruning and thinning, not
complete clearing activities. The City's Fire Marshal has consulted with the U.S. Fish &
Wildlife Service and worked out a system for notifying them regarding potential fIre hazard
situations. The Service has advised the Fire Marshal that thinning and pruning activities in these
situations will be acceptable.
(5-lr~
HuQ.17 '94 14:41
SIERRA CLUB, SAN DIEGO
FA:-: 619-299-1742
P. 1
fAX to: 6~1.5171
SIERRA CLUB, SAN DIEGO CHAPTER
San Diego & Imperial Counties
3820 Ray Street
San Diego. CA 92104-3623
e
III Office/Bookstore 619 299.1743
r^W'I~!IIf.iI"ll7\_.619 .299:1741
D",S.~~~~' ~~~ ~~1,9 ~1~42
set:!IIi:8.:; ,inOA Jj.4-tO l:liC(.,u I
t 16, 1W4 :Jell1O []u.<',.JCw I
,'~";~.~.;
e~u
P~~M."'!J.
NO:~t~!!.. ')q
-- '
Au
Doug Reid
Planning Department
City of Chula Vista
Subjl'Ct: Sierra Club Comments On City of Chula Vista "Ordinancl' Amending the
Municipal Code to Create ^ Voluntary Take Pennit Process Sanctioned
Under Sl'Ction 4(d) of the endangered Species Act Alternative to the Process
Pennittcd Under Section 10(a) of the Act."
Dear Mr. Reid:
The San Diego Chapter of the Sierra Club is a member of the Multiple Spt.'cil.'!;
Conservation Program (M.<;CP) Working Group. We received our first notice' of
Chula Vista's consideration of tIll' proposed 4(d) Interim Take Ordinance today,
August 16, 1994. Bt'causl' of the limited lime provided by this latc notice, our
comments are based ('ntircly on the Council Agenda Statement. We have not had
the time to review the ordinance language. .
The Sierra Club has the following general comments:
1) The basic intent of the the Interim Tak.e Provi!;ions-to ensure that interim
actions do not preclude establishment of viable habitat preserves-tlhould be
made clear to decisiun make!'!' at'ld reflected clearly in tht! urdinance. The
Council Agenda Statement does not convey this intent.
2) The Interim Take ordinance shuuld explicitly reflect the most basic criteria in
the Natural CllIl\tnunity Conservation Planning (NCCP) Guidelines that
"Impacts in higher value areas must demonstrate that the lotlS will not foreclose
future reserve platuling options. ..W (NCc...'P PrOCCA!; Guidelines, 2.2.d.)
3) The 4(d) Interim Take pnlct's!' should be a "your in or your out" proposition.
U the City intends to tak.e advantage of this alternative to Section 10(a) or
Sectiun 7 appnlvaL~, a11 projects Rubmitted for 4(d) appruval should follow
pwcl-dures which are conllistent with the NCCP Guidelines. Projectq which
cannot meet the NCCP findings, should not be approved.
4) We have no problems with the use of an Emergency Procedure when tlwre is
an emergency. However, any emergency urdinancc should be strictly limited
to emergency circumstances. It is n(lt an "emergency" when a jurisdiction
could reasonably anticipate taking a regular adoption action but dOl'll not and
just waits around for subsequent "emergencies" to develop.
/S-4S
Statemmt (which is all the review the late notice allowed):
Back2round The City Council deservcs more complete infom\ation on the key
provisions of the NCCP Guidelines which they are committing they will implement
and respect. l'or example, it should be highlighted.that interim take approvals are
only intended for projects "proposed to proceed with grading in the near term."
And it !!hould be made clear that "decisions having a substantial adverse impact on
high value habitat should be deferred until completion of the NCCP, if possible."
And most importantly, it should be clear that an underlying finding for interim take
must be that "Impacts in higher value areas must demonstrate that the lOllS will not
foreclose future reserve planning options as stated in the (NCCP) Conservation
Guidelines.
Summary of Draft Ordinance The concept of consultation ONLY with the Resource
Agencies for approved projects is problematic in one particular Tl'Spl.~ct-the
Resource Agencies should have the benefit of any public public comments in their
sign-off action and citizens and general interest groups should be aware of the
consultation process, so they can offer their perspectives. Some type of notice
proc~ur~uch as posting in th(> City Clerk's Office-is necessary to ensure the
"opportunity for public comml~nt" required in the NCCP Guidelines.
The discussion of p<'rmit issuance suggests the City's intention to autlwrize interim
lake approvals in excess of th<' 5% and then to issue the permilc; when grading is
imminent. Thi!! is inconsistent with the NCe!' Guidclines which indicate that
approvals should be limited to cases where grading is imminent.
Proposed Adoption as Emerlten<.'V Ordinance As stated above, an J-:mergency
Ordinance should be limited to identified "emergency" situations. It i!l not
appropriate to use emer~ency nrdinan~e pr<lcedures to anticipate the occurrence of
future situations which are not emergencies but which can be reasonably
anticipated. The need to obtain take approvals for coastal stagl' scrub can be
reasonably anticipatcd, given the listing of the California gniltcatcher and the
issuance of the 4(d) Special Rule. A regular, not emergency ordinance procedure
should be used to adopt a non-emergency Interim Take procedure. (Note: the
County's adoption of an Emergency Interim Take Ordinance is being followed by
development of a regular ordinance.)
~ctfUllY, l' /_
~/f'L~
Craig Ada
Conservation Coordinator
299-1741
/ j- qb