04-0902_CALIF DEPT OF FISH & GAME_AgreementCALIFORNIA DEPARTMENT OF FISH AND GAME
4949 Viewridge Avenue
San Diego, California 92123
Notification No. 1600-2004-0225-R5
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AGREEMENT REGARDING PROPOSED STREAM OR LAKE ALTERATION
THIS AGREEMENT, entered into between the State of California, Department of Fish
and Game, hereinafter called the Department, and City of San Juan Capistrano (P.O.C. Ms.
Amy Amirani), 32400 Paseo Adelanto, San Juan Capistrano, California 92675; Phone (949)
443-6361, Fax (949) 493-1053, hereinafter called the Operator, is as follows:
WHEREAS, pursuant to Section 1602 of California Fish and Game Code, the Operator,
on the 10'h day of June, 2004, notified the Department that they intend to divert or obstruct the
natural flow of, or change the bed, channel, or bank of, or use material from the streambed(s)
of, the following water(s): Unnamed Drainage, tributary to Arroyo Trabuco Creek, Orange
County, California, Section 30, Township 7S, Range 8W; USGS Map San Juan Capistrano
7_5; and
WHEREAS, the Department has determined that such operations may substantially
adversely affect those existing fish and wildlife resources within Unnamed Drainage.
tributary to Arroyo Trabuco Creek, specifically identified as follows: Reptiles: orange -
throated whiptail, western fence lizard, side -blotched lizard, western whiptail, southern alligator
lizard, California kingsnake, striped racer, coachwhip, western rattlesnake and gopher snake;
Birds: coastal California gnatcatcher, Cooper's hawk, red-tailed hawk, white-tailed kite,
American kestrel, mourning dove, wrentit, California towhee, pacific -slope flycatcher, California
quail, bushtit, turkey vulture, common raven, finches, black phoebe, Say's phoebe, western
kingbird, northern mockingbird, phainopepla, lesser goldfinch, sparrows, grosbeak, hooded
oriole, Bullock's oriole, Anna's hummingbird, and numerous other songbirds; Mammals:
coyote, raccoon, fox, California ground squirrel, western grey squirrel, woodrat, Virginia
opossum, brush rabbit, desert cottontail, Botta's pocket gopher, mice, and striped skunk;
Riparian vegetation which provides habitat for those species: willow (red and arroyo), mulefat,
broad-leaved cattail and coyote brush and all other aquatic and riparian wildlife resources in
the area.
THEREFORE, the Department hereby proposes measures to protect fish and wildlife
resources during the Operator's work. The Operator hereby agrees to accept the following
measures/conditions as part of the proposed work.
If the Operator's work changes from that stated in the notification specified above, this
Agreement is no longer valid and a new notification shall be submitted to the Department of
Fish and Game. Failure to comply with the provisions of this Agreement and with other
pertinent code sections, including but not limited to Fish and Game Code Sections 5650,
5652, 5937, and 5948, may result in prosecution.
Nothing in this Agreement authorizes the Operator to trespass on any land or property,
nor does it relieve the Operator of responsibility for compliance with applicable federal, state,
or local laws or ordinances. A consummated Agreement does not constitute Department of
Fish and Game endorsement of the proposed operation, or assure the Department's
concurrence with permits required from other agencies.
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STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0225-R5
1. The following provisions constitute the limit of activities agreed to and resolved by this
Agreement. The signing of this Agreement does not imply that the Operator is precluded from
doing other activities at the site. However, activities not specifically agreed to and resolved by
this Agreement shall be subject to separate notification pursuant to Fish and Game Code
Sections 1600 et seq.
PROJECT DESCRIPTION:
2. The Operator proposes to alter the streambed and banks through the replacement of the
existing 10 Million Gallon (MG) Terminal Reservoir No. 2 (TR -2) which has experienced
structural damage due to differential settlement and is in need of replacement. In order to
mitigate for documented movement of the existing reservoir due to shallow and deep seated
landsliding, the project proposes to over excavate the site, and construct temporary tie-
back/earth retaining systems, and permanent reinforced earth fill buttresses. The proposed
project will replace TR -2, with a new, 6 MG facility, TR -3. TR -3 will be constructed on the site
presently occupied by TR -1, which is an existing 2 MG reservoir that is no longer in operation
as is located adjacent to TR -2. This will allow for continued use of the TR -2 during the
construction period, avoiding serious disruptions of the to domestic water service. TR -1 will be
demolished to allow construction of TR -3. Once TR -3 is completed and in service, TR -2 will
be taken out of operation and abandoned in place. In addition to the construction of TR -3, the
project will also include construction of an on-site, stand-by Chloramine Generator System,
appurtenant pipelines and valves, site electrical improvements, road and fence upgrades, and
stockpiling of excavated soil.
3. The agreed work includes activities associated with No. 2 above. The project area is
located in the Unnamed Drainage, tributary to Arroyo Trabuco Creek, in Orange County.
Specific work areas and mitigation measures are described on/in the plans and documents
(Notification of Lake or Streambed Alteration, Mitigated Negative Declaration, dated
April, 2003, SCH#2003041155, and Conceptual Wetland Restoration Plan, revised 2004)
submitted by the Operator, and shall be implemented as proposed unless directed differently
by this agreement.
IMPACTS:
4. The Operator shall not permanently impact more than 0.565 acre of stream channel
and associated riparian habitat, of which consists of 0.042 acre of Southern Willow Scrub,
0.014 acre of Coastal and Valley Freshwater Marsh, 0.285 acre of Mulefat Scrub, and 0.224
acre of unvegetated streambed.
MITIGATION:
5. The Operator shall mitigate 0.042 acre of impacts to Southern Willow Scrub habitat at a
compensation to impact ratio of 2:1, 0.014 acre of impacts to Coastal and Valley Freshwater
Marsh habitat at a compensation to impact ratio of 2:1, 0.285 acre of impacts to Mulefat Scrub
habitat at a compensation to impact ratio of 2:1, and 0.224 acre of impacts to unvegetated
streambed at a compensation to impact ratio of 1:1, for a total mitigation obligation of 0.906
acre; and shall consist of on -and off-site creation and enhancement of wetland/riparian
habitat.
Mitigation obligation shall be carried out as follows:
Mitigation for permanent impacts to 0.565 acre will be achieved by the on-site creation of
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STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0225-R5
0.565 acre of wetlands and streambed and the off-site enhancement of 0.341 acre of wetlands
pursuant to the Conceptual Wetland Mitigation Plan (Merkel and Associates 2004), and
approved in writing by the Department.
On-site Mitigation:
The Operator shall mitigate 0.042 acre of impacts to Southern Willow Scrub habitat at a
compensation to impact ration of 1:1, 0.014 acre of impacts to Coastal and Valley Freshwater
Marsh habitat at a compensation to impact ration of 1:1, 0.285 acre of impacts to Mulefat
Scrub habitat at a compensation to impact ration of 1:1, and 0.224 acre of impacts to
unvegetated streambed at a compensation to impact ratio of 1:1 for a total mitigation
obligation of 0.565 acre; and shall consist of on-site creation of wetland/riparian habitat.
Off-site Mitigation:
The Operator shall mitigate 0.042 acre of impacts to Southern Willow Scrub at a
compensation to impact ratio of 1:1, 0.285 acre of impacts to Mulefat Scrub habitat at a
compensation to impact ratio of 1:1, and 0.014 acre impacts to Coastal and Valley Freshwater
Marsh, at a ratio of 1:1, for a total of not less than 0.341 acre of off-site enhancement of
existing degraded riparian wetlands.
6. A Final Wetland Mitigation Plan shall be submitted to the Department for review no later
than December 15, 2004, and shall be prepared by persons with expertise in enhancement,
revegetation and creation specific to southern California ecosystems and using native plant
revegetation techniques. This mitigation plan shall include final plans for on-site wetland
creation areas and plans for the enhancement of not less than 0.341 acre of wetland habitat
off-site.
7. Within 180 days of initiation of project impacts, the Operator shall initiate wetland
enhancement at the off-site mitigation area.
8. Within 12 months of initiation of project impacts, the installation of the off-site enhancement
shall be completed.
9. Within 21 months of initiation of project impacts, the Operator shall initiate wetland creation
on-site and wetland enhancement at the off-site mitigation area.
10. Within 24 months of initiation of project impacts, the installation of the on-site created
wetlands shall be completed.
11. An annual report shall be submitted to the Department by Jan. 1 of each year for 5 years
after planting. This report shall include the survival, % cover, and height of both tree and shrub
species. The number by species of plants replaced, an overview of the revegetation effort, and
the method used to assess these parameters shall also be included. Photos from designated
photo stations shall be included.
12. All planting shall have a minimum of 80% survival the first year and 100% survival
thereafter and/or shall attain 75% cover of native woody species after 3 years and 90% cover
of native woody species after 5 years for the life of the project. Nonnative species shall
comprise less than 5% of the cover after 5 years; and invasive species including, but not
limited to, Arundo donax, castor bean, tree tobacco and fennel, shall comprise 0% of the cover
at the end of the 5 -year monitoring period. If the survival and cover requirements have not
been met, the Operator is responsible for replacement planting to achieve these requirements.
Replacement plants shall be monitored with the same survival and growth requirements for 5
years after planting. Irrigation shall be stopped two years prior to achieving the success
criteria.
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STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0225-R5
13. If after 3 years of monitoring the mitigation meets the 5 -year success criteria, AND the
Department reviews and approves the mitigation status in writing, the Operator may consider
the sites have been successful and cease monitoring.
BIOLOGICAL SURVEYS AND TIME RESTRICTIONS:
14. The Operator shall not remove vegetation within the stream from March 15'" to July 30"'
(February 15'' to August 31 5' in areas with coastal sage scrub) to avoid impacts to nesting
15. If work is performed within the stream channel during the winter storm period the Operator
shall monitor the five (5) day weather forecast. If it is forecasted for any precipitation, work
activities shall involve the securing of the site, so as no materials may enter or be washed into
the stream. The site shall be completely secured one (1) day prior to precipitation, unless
prior written approval has been provided by the Department. During period of precipitation, no
construction activities may occur; activities involving the preventing of materials from entering
the stream or being washed downstream may be conducted.
16. In the event that one (1) inch of precipitation is accumulated within the watershed, no
activities shall occur on site until the flows have receded and the moisture content of the soils
has stabilized.
VEGETATION REMOVAL / HABITAT PROTECTION:
17. Disturbance, removal or trimming of vegetation for equipment access shall not exceed the
limits approved by the Department.
18. The work area shall be identified to all workers, as represented in plans. Native
vegetation shall not be removed or intentionally damaged or beyond the designated work area.
19. Except where provided for within this agreement, the removal of soil and native vegetation
from the streambed or streambanks is prohibited without prior written approval from the
Department.
EQUIPMENT AND ACCESS:
20. No equipment shall be operated in ponded or flowing areas. When work in a flowing
stream is unavoidable, the entire stream flow shall be diverted around the work area by a
barrier, temporary culvert, new channel, or other means approved by the Department.
Construction of the barrier and/or the new channel shall normally begin in the downstream
area and continue in an upstream direction, and the flow shall be diverted only when
construction of the diversion is completed. Channel bank or barrier construction shall be
adequate to prevent seepage into or from the work area. Channel banks or barriers shall not
be made of earth or other substances subject to erosion unless first enclosed by sheet piling,
rock rip -rap, or other protective material. The enclosure and the supportive material shall be
removed when the work is completed and removal shall normally proceed from downstream in
an upstream direction.
21. Flow diversions shall be done in a manner that shall prevent pollution and/or siltation and
which shall provide flows to downstream reaches. ,
22. Staging/storage areas for equipment and materials shall be located outside of the stream.
23. Access to the work site shall be via existing roads and access ramps.
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STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0225-R5
24. No equipment maintenance shall be done within or near any stream channel where
petroleum products or other pollutants from the equipment may enter these areas under any
flow.
25. Vehicles shall not be driven or equipment operated in water covered portions of a stream
or lake, or where wetland vegetation, riparian vegetation, or aquatic organisms may be
destroyed.
POLLUTION. SEDIMENTATION AND LITTER:
26. All equipment shall be properly cleaned offsite prior to entering the stream channel.
27. All sediment and associated material removed from the stream channel shall be legally
hauled and disposed of off-site.
28. Raw cement/concrete or washings thereof, asphalt, paint or other coating material, oil or
other petroleum products, or any other substances which could be hazardous to aquatic life,
resulting from project related activities, shall be prevented from contaminating the soil and/or
entering the waters of the state. These materials, placed within or where they may enter a
stream/lake, by Operator or any party working under contract, or with the permission of the
Operator, shall be removed immediately.
29. No debris, soil, silt, sand, bark, slash, sawdust, rubbish, cement or concrete or washings
thereof, oil or petroleum products or other organic or earthen material from any construction,
or associated activity of whatever nature shall be allowed to enter into or placed where it may
be washed by rainfall or runoff into, waters of the State. When operations are completed, any
excess materials or debris shall be removed from the work area. No rubbish shall be
deposited within 150 feet of the high water mark of any stream or lake.
30. The Operator shall comply with all litter and pollution laws. All contractors, subcontractors
and employees shall also obey these laws and it shall be the responsibility of the operator to
ensure compliance.
,•Yi.1#c;
31. The Operator may request one extension of this Agreement, if the Operator requests the
extension prior to the expiration of its original term. The Department shall grant the extension
unless it determines that the Agreement requires modification because the measures
contained in the agreement no longer protect the fish and wildlife resources that the activity
may substantially adversely affect. In the event the Department makes that determination, the
Department shall propose measures intended to protect those resources. If the Operator
disagrees with the Department's determination that the Agreement requires modification to
protect fish and wildlife resources or with the measures proposed by the Department, the
disagreement shall be resolved pursuant to the procedures described in subdivision (b) of
Section 1603. The Department may not extend an agreement for more than five years. The
original Agreement shall remain in effect until the Department grants the extension request, or
new measures are imposed to protect fish and wildlife resources by agreement or through the
arbitration process, however, the original Agreement may not remain in effect for more than
one year after its expiration date. If the Operator fails to submit a request to extend an
agreement prior to its expiration, the Operator shall submit a new notification before
commencing or continuing the activity covered by the Agreement. Any activities conducted
under an expired agreement constitute a violation of Fish and Game Code Section 1600 et
seq. The extension request -and fees shall be submitted tothe _Department's Region 5 Office
Streambed Team at 4949 Viewridge Avenue, San Diego, California 92123.. Tf the Operator
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STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0225-R5
fails to request the extension prior to the agreement's termination then the Operator shall
submit a new notification with fees and required information to the Department. Any activities
conducted under an expired agreement is a violation of Fish and Game Code Section 1600 et
seq.
32. The Operator shall provide a copy of this Agreement to all contractors,
subcontractors, and the Operator's project supervisors. Copies of the Agreement shall
be readily available at work sites at all times during periods of active work and must be
presented to any Department personnel, or personnel from another agency upon demand.
33. The Department reserves the right to enter the project site at any time to ensure
compliance with terms/conditions of this Agreement.
34. All provisions of this Agreement remain in force throughout the term of the Agreement.
Any provisions of the Agreement may be amended or the Agreement may be terminated at
any time provided such amendment and/or termination is agreed to in writing by both parties.
Mutually approved amendments become part of the original Agreement and are subject to all
previously negotiated provisions.
35. If the Operator or any of the individuals mentioned above, violate any of the terms or
conditions of this agreement, all work shall terminate immediately and shall not proceed until
the Department has taken all of its legal actions.
36. The Operator shall notify the Department, in writing, at least five (5) days prior to
initiation of construction (project) activities and at least five (5) days prior to completion
of construction (project) activities. Notification shall be sent to the Department at 4949
Viewridge Avenue; San Diego, California 92123, Attn: Donna Cobb, ES. SAA# 1600-2004-
0225-R5.
37. It is understood the Department has entered into this Streambed Alteration Agreement for
purposes of establishing protective features for fish and wildlife. The decision to proceed with
the project is the sole responsibility of the Operator, and is not required by this agreement. It
is further agreed all liability and/or incurred cost related to or arising out of the
Operator's project and the fish and wildlife protective conditions of this agreement,
remain the sole responsibility of the Operator. The Operator agrees to hold harmless the
State of California and the Department of Fish and Game against any related claim made by
any party or parties for personal injury or any other damages.
38. The Department reserves the right to suspend or cancel this Agreement for other reasons,
including but not limited to the following
a. The Department determines that the information provided by the Operator in support
of the Notification/Agreement is incomplete or inaccurate;
b. The Department obtains new information that was not known to it in preparing the
terms and conditions of the Agreement;
C. The project or project activities as described in the Notification/Agreement have
changed;
d. The conditions affecting fish and wildlife resources change or the Department
determines that project activities will result in a substantial adverse effect on the
environment.
39. Before any suspension or cancellation of the Agreement, the Department will notify the
Operator in writing of the circumstances which the Department believes warrant suspension or
cancellation. The Operator will have seven (7) working days from the date of receipt of this
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STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0225-R5
notification to respond in writing to the circumstances described in the Department's
notification. During the seven (7) day response period, the Operator shall immediately cease
any project activities which the Department specified in its notification. The Operator shall not
continue the specified activities until that time when the Department notifies the Operator in
writing that adequate methods and/or measures have been identified and agreed upon to
mitigate or eliminate the significant adverse effect.
CONCURRENCE
CITY OF SAN JUAN CAPISTRANO
GV -0 01-�� 01 Wolf
signature date
Dave Adams, City Manager
signatur ate
Prepared by: Donna L. Cobb, Environmental Scientist
CALIFORNIA DEPT. OF FISH AND GAME
signature date
C.F. RAYSBROOK, Regional Manager