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04-1104_CALIF DEPT OF FISH & GAME_AgreementCALIFORNIA DEPARTMENT OF FISH AND GAME 4949 Viewridge Avenue San Diego, California 92123 Notification No. 1600-2004-0476-R5 Page 6 of 7 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), 32450 Paseo Adelanto, San Juan Capistrano, California 92675; Phone (949) 443-6361, Fax (949) 493-3955, hereinafter called the Operator, is as follows: WHEREAS, pursuant to Section 1602 of California Fish and Game Code, the Operator, on the 19"' day of October, 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 San Juan Creek, Orange County, California, Section 11, Township 1OS, Range 7W; USGS Map Santiago Peak 7.5; and WHEREAS, the Department has determined that such operations may substantially adversely affect those existing fish and wildlife resources within an Unnamed Drainage, tributary to San Juan Creek, specifically identified as follows: Amphibians: Pacific slender salamander, and Pacific treefrog; Reptiles: coachwhip, western fence lizard, side -blotched lizard, California kingsnake, and gopher snake; Birds: red-tailed hawk, Cooper's hawk, American kestrel, common yellowthroat, mourning dove, wrens, California towhee, California quail, wrentit, turkey vulture, swallows, common raven, blackbirds, loggerhead shrike, northern mockingbird, Anna's hummingbird, wrens, vireo, towhee, grosbeaks, orioles, waxbills, California horned lark, meadowlark, finches, black phoebe, Say's phoebe, Northern flicker, Acorn woodpecker, warblers, sparrows, numerous other songbirds; Mammals: coyote, fox, raccoon, California ground squirrel, Virginia opossum, brush rabbit, Audubon cottontail, Botta's pocket gopher, Dusky -footed woodrat, mice, and striped skunk; Riparian vegetation which provides habitat for those species: willow, cottonwood, mulefat, southern cattail; and all other aquatic and 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 Departments concurrence with permits required from other agencies. This Agreement becomes effective the date of Department's signature and terminates December 31, 2008 for oroiect construction only. This Agreement shall remain in effect for that time necessary to satisfy the terms/conditions of this Agreement. SD Page 2 of 7 • • STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0476-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 by removing invasive species consisting of, but not limited to, Arundo (Arundo donax), tree tobacco (Nicotiana glauca), pepper tree (Schinus sp.), Mexican fan palm (Washingtonia robusta), tamarisk (Tamarix sp.), cocklebur (Xanthium strumarium), castor bean (Ricinus communis), and invasive non-native trees and plants within a 1.31 acre area of an Unnamed Drainage, tributary to San Juan Creek; located adjacent to the proposed Belladonna Estates Development Project (Agreement Notification No. 1600-2004-0295-R5). In addition to the removal of invasive species, the project involves the removal of an existing 6- to 8 -inch berm along the western boundary of the stream channel and the removal debris/trash within the channel. Maintenance activities will include exotic vegetation removal, followed by the application of an approved herbicide consistent with federal, state and local regulations, and subsequent restoration of the area with native riparian and transitional upland vegetation local to the San Juan Creek area. The proposed project is considered pre -project (partial) mitigation required for future impacts associated with the proposed Belladonna Estates Development Project (Agreement Notification No. 1600-2004-0295-R5). 3. The agreed work includes activities associated with No. 2 above. The project area is located in an Unnamed Drainage. tributary to San Juan Creek, in Orange County. Specific work areas and mitigation measures are described on/in the plans and documents (Streambed Alteration Notification Application, received October 19, 2004, and the Draft Mitigated Negative Declaration, dated June 8, 2004) submitted by the Operator, and shall be implemented as proposed unless directed differently by this agreement. Im ac : 4. The Operator shall not impact more than 1.31 acres of stream channel and associated riparian habitat, of which all are temporary impacts. Mitigation 5. Prior to the initiation of any project activities associated with the proposed Belladonna Estates Development Project (Agreement Notification No. 1600-2004-0295-R5), the Operator shall submit to the Department for review and written approval, a mitigation plan designed to meet the identified objectives described in Agreement Notification No. 1600-2004-0295-R5. Plans for restoration, enhancement/re-vegetation and/or creation should be prepared by persons with expertise in southern California ecosystems and native plant re -vegetation techniques. The plan should include at minimum: (a) the location of the mitigation site; (b) the plant species to be used; (c) a schematic depicting the mitigation area; (d) time of year that the planting will occur; (e) a description of the irrigation methodology; (f) measures to control exotic vegetation on site; (g) success criteria; (h) a detailed monitoring program; (i) contingency measures should the success criteria not be met. 6. 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 Page 3 of 7 • • STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0476-R5 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. 7. 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. 8. 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: 9. The Operator shall not remove vegetation within the stream from March 15"' to August 3V to avoid impacts to nesting birds. However, work may occur during this time if a qualified biologist conducts a survey for nesting birds within three days prior to the work in the area, and ensures no nesting birds shall be impacted by the project. If breeding activities and/or an active bird nest is located and concurrence has been received from the Department, the breeding habitat/nest site shall be fenced a minimum of 50 feet (200 feet for raptors) in all directions, and this area shall not be disturbed until the nest becomes inactive, the young have fledged, the young are no longer being fed by the parents, the young have left the area, and the young will no longer be impacted by the project. 10. 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. 11. No work shall occur on site in areas containing flowing water until the flows have receded and the moisture content of the soils have stabilized. Veaetation Removal/Habitat Protection: 12. No direct or indirect impacts shall occur to any threatened or endangered species. If any threatened or endangered species could be impacted by the work proposed, the Operator shall obtain the required state and federal threatened and endangered species permits. 13. The work area, as represented in plans, shall be identified to all workers. No native vegetation shall be removed or intentionally damaged as a result of the proposed project. 14. The removal of soil and vegetation, other than non-native vegetation from the streambed Page 4 of 7 • • STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 11600-2004-0476-R5 or streambanks is prohibited, except where provided for within this agreement, without prior written approval from the Department. 15. The Operator shall remove non-native vegetation from the work area and shall dispose of it in a legal manner; in all cases it shall be placed in a manner which prevents its reestablishment in the stream, and in such a manner so that it does not negatively effect other sensitive native habitat communities. 16. No bulldozers, hydro -axes, or other terrain altering equipment shall be used to implement the "enhancement" mitigation obligation. 17. All vegetation shall be removed by hand or by hand -operated tools. 18. All herbicide use conditions for mixing, application and clean-up shall conform with all applicable federal, State, and local regulations, nothing in this Agreement represents a pesticide use recommendation that allows for an actions that conflict with pesticide use regulations. 19. Any application of herbicide shall be done by a licensed applicator in accordance with all applicable, federal, state, local laws, and/or guidelines. 20. No vehicles shall be operated within the stream except as described as follows: Vehicles may be used to carry equipment and transport cut vegetation; all vehicles shall use existing roads for access to the sites; small soft rubber -tired ATV's may be used where existing road access is not available, provided that such ATV's can access the central channel without entering wetland areas or damaging native vegetation. Native vegetation shall NOT be impacted by any vehicle use. 21. Herbicide mixing sites shall only be located in areas devoid of vegetation, and where there is no potential of a spill reaching a vegetated area or a stream, for example avoid mixing at a storm water -inlet. 22. Any herbicide used where there is the possibility that the herbicide could come into direct contact with water shall be approved for use in an aquatic environment (e.g. Rodeo). Great care shall be taken to avoid contact with any native vegetation, and it shall only be applied on calm days to prevent airborne transfer of the herbicide. )guipment and Access: 23. 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. 24. Staging/storage areas for equipment and materials shall be located outside of the stream. Page 5 of 7 • • STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0476-R 25. Access to the work site shall be via existing roads and access ramps. 26. 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. 27. 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: 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. OTHER: 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 to the Department's Region 5 Office Streambed Team at 4949 Viewridge Avenue, San Diego, California 92123. If the Operator Page 6 of 7 • • STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0476-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- 0476-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 ' ' Page 7 of 7 • 0 STREAMBED ALTERATION CONDITIONS FOR NOTIFICATION NUMBER: 1600-2004-0476-R5 cancellation. The Operator will have seven (7) working days from the date of receipt of this notification to respond in writing to the Circumstances described in the Depart'nenrs 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 agr:aed upon to mitigate or eliminate the significant adverse effect. CONCURRENCE CITY OF SAN JUAN CAPISTRANO Signa ure) (date) Dave Adams. City, Manager 11 "�,) 11 (signature) I (date) Prepared by: Donna L. Cobb, Environmental Scientist CALIFORNIA DEPT. OF FISH AND GAME (signature) (date') C.F. RAYSBROOK. Regional Manager