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1994-0517_ORANGE, COUNTY OF_Memorandum of Agreementm TO: Tom Tomlinson, Planning Director FROM: Cheryl Johnson, City Clerk C DATE: October 23, 1995 SUBJECT: Natural Communities Conservation Program for Coastal Sage Scrub Communities Agreement On May 17, 1994 the City Council approved the Natural Communities Conservation Planning Agreement. Our office has not received a signed copy. Please note the attached letter from Tim Neely, Environmental Management Agency, Planning and Zoning Administrator. Will a signed copy be forthcoming or is this agreement considered "dead". I appreciate any help you can give me regarding this matter. U ONTY OF OCT 2 4 1994 5 (( 3 /=,RANGE ENVIRONMENTAL MANAGEMENT AGENCY PLANNING Cheryl Johnson City Clerk City of San Juan Capistrano 32400 Pasco Adelanto San Juan Capistrano, CA 92675 MICHAEL M. RUANE DIRECTOR, EMA THOMAS B. MATHEWS DIRECTOR OF PLANNING LOCATION: 300 N. FLOWER ST. THIRD FLOOR SANTA ANA, CALIFORNIA MAILING ADDRESS: P.O. BOX 4048 SANTA ANA, CA 92702-4048 Subject: Natural Communities Conservation Planning Agreement (MOU) Dear Ms. Johnson: TELEPHONE: (714) 834-4643 FAX #:834-2771 DPC:834-4772 I just received an inquiry from Bill Ramsey as to the status of the subject agreement. He reminded me that the city was awaiting an original of the MOU to be forwarded for signature. Since we only have one original agreement in our file, we are distributing copies of the MOU to the cities and requesting that they sign and return them to us. Upon receipt of signatures from all cities, we will distribute certified copies of the final MOU to each city for their records. Attached is a copy of the MOU for you city's signature. The last page contains three blank signature blocks which can be completed by whomever your procedures authorize. I'm sorry for any confusion that might have been created. If you have any questions, please call me at (714) 834-2552. TSN:ps(4102016351746) Attachment , TLWNeel� Administrat lanning & Zoning - rm +SD S - • 0 MEMORANDUM OF AGREEMENT BY AND AMONG THE CALIFORNIA RESOURCES AGENCY, THE CALIFORNIA DEPARTMENT OF FISH AND GAME, THE UNITED STATES FISH AND WILDLIFE SERVICE, THE COUNTY OF ORANGE, CITIES WITHIN ORANGE COUNTY THE FOOTHILIJEASTERN TRANSPORTATION CORRIDOR AGENCY, SANTA MARGARITA COMPANY, COTO DE CAZA AND ARVIDA REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN FOR THE SOUTHERN ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM Z AAA F:T EXHIBIT A MEMORANDUM OF AGREEMENT REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN FOR THE SOUTHERN ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM THIS MEMORANDUM OF AGREEMENT ('MOA' or'Agreement') dated as of 1993 is made by and among the CALIFORNIA RESOURCES AGENCY ('Resources Agency'), an agency of the State of California, CALIFORNIA DEPARTMENT OF FISH AND GAME ('CDFG'), a department of the Resources Agency, the UNITED STATES FISH AND WILDLIFE SERVICE ('USFWS% an agency of the Department of Interior of the United States of America, the COUNTY OF ORANGE ('County'), a political subdivision of the State of California, the FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY ('TCA'), a joint powers authority, THE CITIES OF (collectively, 'Cities'), SANTA MARGARITA'COMPANY, ARVIDA and COTO DE CAZA. The County, TCA and the Cities may be referred to as 'Local Governments'; SANTA MARGARITA COMPANY, ARVIDA and COTO DE CAZA are referred to as 'Landowner'; and all of the above-described entitles may be referred to collectively as 'Parties' and each individually as a *Party'. As among the nonfederai signatories to this MOA, this Agreement serves as the *Planning Agreements described in the Southern California Coastal Sage Scrub Natural Community Conservation Planning Process Guidelines (dated September 1, 1992) (the "Process Gyidelinee). This Agreement shall be effective as to all executing Parties upon execution by the Resources Agency, CDFG, USFWS, TCA, the County and the Landowner. 1.0 RECITALS. 1.1 The purpose of this Agreement is to establish the guidelines and procedures that will be followed by the Parties in the preparation of a Natural Community Conservation Plan ('NCCP Plan') for the Southern Orange County Subregion. of Orange County with regard to the California gnatcatcher and other related Target Species, as described herein. 1.2 The Natural Community Conservation Planning Program ('NCCP Program') is established by Califomia law under the Natural Community Conservation Planning Act of 1991 (Fish & G. Code, § 2800 gid,.) ('NCCP Act'). CDFG is the trustee agency implementing the NCCP AcL' 1.3 The purpose of the statewide NCCP Program is to provide for regional protection and perpetuation of natural wildlife diversity while allowing compatible and appropriate development and growth. The NCCP Program intends that these goals be achieved through the development and implementation of Natural Community Conservation Plans. The NCCP Program is designed to provide an alternative to current single species conservation efforts by formulating regional, natural community based habitat protection programs to protect the numerous species inhabiting each of the targeted natural communities. The Parties believe that the shift in focus from single species to natural communities will enhance the effectiveness of ongoing species preservation efforts. 1.4 The coastal sage scrub ('CSS') NCCP Program ("CSS NCCP Program") is the first effort to be undertaken pursuant to the NCCP Act. It is intended to be undertaken as a pilot project to develop a process for accelerated conservation planning at a regional scale, and it is contemplated that the NCCP process for coastal sage scrub may serve as a model for other efforts elsewhere in the State. This planning process is sponsored jointly by the California Resources Agency and CDFG, and conducted in cooperation with USFWS, pursuant to a Memorandum of Understanding between CDFG and USFWS dated December 4, 1991. 1.5 The CSS NCCP Program creates a regional planning and management system designed to protect coastal sage scrub habitat and to reconcile conflicts between habitat protection and new development within Southern California. The study area established for the CSS NCCP Program includes existing coastal sage scrub habitat in portions of five counties, including Orange County. The CSS NCCP Program anticipates that NCCP plans will be prepared for designated planning subregions. This Agreement is intended to establish the planning process for development of an NCCP Plan in the Southern Subregion of the CSS NCCP Program. As among the nonfederal signatories to the MOA, the Agreement serves as the 'Planning Agreement called for in the Process Guidelines. 1.6 The CSS NCCP Program contemplates an 18 month planning period from May 1, 1992 to October 31, 1993. Prior to and during this planning period, landowners and local governments have enrolled in the CSS NCCP Program by entering into voluntary agreements with CDFG. To the extent described in the enrollment agreements, no activity that would cause disturbance of CSS is allowed on land subject to a Landowner or Land Management Agency enrollment agreement during the planning period, other than actions mandated for public safety. This Agreement is not intended to replace the enrollment agreements. 1.7 USFWS and CDFG have identified a number of mammal, bird, reptile and plant species which utilize coastal sage scrub habitat as species which are candidates for, or have been proposed for listing, pursuant to the Federal Endangered Species Act, 18 U.S.C. sections 153121 Uy ('ESA') or the California Endangered Species Act, f=ish and Game Code sections 2050 gj M. ('CESA'). Among these -2- NCCP Agreement June 17, 1993 9316BOOLOCI species are the Calftia gnatcatcher (PoliopUla californic califomica), the cactus wren (Camp)lorhynchus brunneicapillus), and the orange -throated whiptail lizard (Cnemidophorus hyperyfhrus beldingi). 1.8-- The Landowner is the owner of certain real property situated in the County of Orange, State of California, within the Southern Orange County Subregion (the 'landowners Property'). The Landowner's Property is currently used for a variety of purposes including, but not limited to, conservation, agricultural, residential and commercial purposes. 1.9 The Landowner, Local Governments, and TCA, have participated in long -tern regional planning efforts to conserve contiguous open space, recreational and wildlife habitat areas. At present in the Southern Subregion of the County, there are approximately 30,040 acres of large habitat areas in dedicated regional open space and project -committed open space. These regional planning efforts have been conducted to reduce and mitigate the impacts of development, and have been coordinated with regional planning of development to meet housing and employment goals and the infrastructure needed to, support those goals. The Parties intend that the NCCP Process be integrated with the regional open space planning which has already taken place to identify and ensure appropriate mitigation for impacts on fish and wildlife, and to promote the conservation of broad-based natural communities and species diversity. 1.10 The Parties recognize the important role public and private partnerships play in protecting and enhancing the habitat and survival of species which are presently unlisted as well as those which are listed or proposed for listing. The Parties acknowledge that Congress recognized this role in conjunction with the 1982 Amendments to the ESA. Congress expressed its intent, (H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 30, 31 (1982) regarding encouraging such partnerships for unlisted, as well as listed species, as follows: (a) Application to Unlisted Species "Although the conservation plan is keyed to the permit provisions of the Act which only apply to listed species, the Committee intends that conservation plans may address both listed and unlisted species' (b) Public Private Partnerships "To the maximum extent possible, the Secretary should utilize this authority under this provision to encourage creative partnerships between the public and private sectors ... -3- NCCP Agreement June 17, 1993 9316l0MACt 0 0 (c) Long -Term Assurance Provided by and for the Habitat Conservation Plan Pr000nent "The Secretary, in determining whether to issue a long-term permit to carry out the conservation plan should consider the extent to which the conservation plan is likely to enhance the habitat of the listed species or increase the long -tens survivability of the species or its ecosystem." ... "Permits of 30 or more years duration may be appropriate in order to provide adequate assurances to the private sector to commit to long-term funding for conservation activities or long -tens commitments to restrictions on the use of land." (d) Reciprocal Assurances to be Provided by the Service "The Committee intends that the Secretary may utilize this provision to approve conservation plans which provide long- term commitments regarding the conservation of listed as well as unlisted species and long-term assurances to the proponent of the conservation plan that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in accordance with the terns of the plan. In the event that an unlisted species addressed in an approved conservation plan is subsequently listed pursuant to the Act, no further mitigation requirements should be imposed if the conservation plan addressed the conservation of the species and its habitat as if the species were listed pursuant to the Act' 1.11 The CSS NCCP Program, pursuant to California law, provides a mechanism for the furtherance of the goals of the ESA and CESA with respect to conservation of species. In enacting the NCCP Act, the California Legislature stated the following: (a) The continuing population growth in California will result in increasing demands for dwindling natural resources and result in the continuing decline of the state's wildlife. (b) There is a need for broad-based planning to provide for effective protection and conservation of the state's wildlife heritage while continuing to allow appropriate development and growth. (c) Natural community conservation planning is an effective tool in protecting Califomia's natural diversity while reducing -4- NCCP 4NCCP Agreement June 17, 1993 931680OLDC1 • conflicts between protection of the state's wildlife heritage and reasonable use of natural resources for economic development (d) Natural community conservation planning promotes coordination and cooperation among public agencies, landowners, and other private interests, provides a mechanism by which landowners and development proponents can effectively participate in the resource conservation planning process, provides a regional planning focus which can effectively address cumulative impact concerns, minimizes wildlife habitat fragmentation, promotes multispecies management and conservation, provides one option for identifying and ensuring appropriate mitigation for impacts on fish and wildlife, and promotes the conservation of broad based natural communities and species diversity. (e) Natural community conservation planning can provide for efficient use and protection of natural and economic resources while promoting greater sensitivity to important elements of the state's critical natural diversity. (f) Natural community conservation planning is an effective planning process which can facilitate early coordination to protect the interest of the state, the federal government, and local public agencies, landowners, and other private parties. (g) Natural community conservation planning is a mechanism that can provide an early planning framework for proposed development projects within the planning area in order to avoid, minimize, and compensate for project impacts to wildlife. (h) Natural community conservation planning is consistent with and will support the fish and wildlife management activities of the Department of Fish and Game in its role as the trustee for fish and wildlife within the state. (i) The purpose of natural community conservation planning is to sustain and restore those species and their habitat identified by the Department of Fish and Game which are necessary to maintain the continued viability of those -5- NCCA Agreoment June 17, 1993 931690CLOCI 0 0 biological communities impacted by growth and development. 1.12 The Parties agree that subject to the requirements of the ESA and CESA, in the event that any of the Target Species are listed as a threatened species or an endangered species under the ESA or CESA, or as a candidate species under the CESA, and in the absence of Unforeseen Circumstances, the approved NCCP Plan and Implementing Agreement developed pursuant to this Agreement will be treated as a Habitat Conservation Plan ("HCP") by USFWS in connection with the issuance of Section 10(a) permits, and will be relied on by USFWS in issuing Section 7 biological opinions; and will be treated as a habitat conservation plan by CDFG in connection with the issuance of Section 2081 Permits, and as the basis for findings and determinations pursuant to Fish and Game Code Section 2090 at M. 2.0 DEFINITIONS. 2.1 California Endangered Species Act. The 'California Endangered Species Acr or'CESA' shall mean the California Endangered Species Act, Fish and Game Code section 2050 gt =. 2.2 California Gnatcatcher. The 'California gnatcatcher' or 'gnatcatcher' shall mean the California gnatcatcher (Poliopala califomica califomica), including the eggs and all other life stages thereof. 2.3 Cactus Wren. 'Cactus wren' shall mean the coastal population of the cactus wren (Campyforhynchus brunneicapillus), including the eggs and all other life stages thereof. 2.4 Orange -Throated Whiptail Lizard. 'Orange -throated whiptail lizard• shall mean the orange .throated whiptail lizard (Cnemidophorus hyperythrus beldingr) including the eggs and ad other life stages thereof. 2.5 Conservation Representatives. 'Conservation representatives" shall mean representatives of national and local environmental groups. 2.6 Southam Orange County Subregion. The 'Southern Orange County Subregion' as generally shown in Exhibit A, attached hereto, refers to the Southern Orange County subregion of the CSS NCCP Program within Orange County. This Agreement is intended to establish the planning process leading to an NCCP Plan covering the Southern Orange County Subregion. 2.7 CESA Candidate Species. "CESA Candidate Species" shall mean those species listed as candidates for listing as endangered or threatened pursuant to Fish and Game Code section 2074.2. -6- NCCP Agreement June 17, 1993 901680oLoci 2.8 CSS Species. "CSS Species" shall mean those species other than the Target Species, associated with coastal sage scrub habitat, including but not limited to those species identified by the Scientific Review Panel ("SRP") as associated with coastal sage scrub habitat CSS Species will be identified in each subregional NCCP Plan. 2.9 Endangered Species Act 'Endangered Species Act* or'ESA' shall mean the Federal Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 QI M. 2.10 Hai . 'Habitat' shall mean the area occupied by or suitable for occupation by particular wildlife species. Areas capable of restoration may be considered habitat for Target Species, for purposes of mitigation. 2.11 HSP. "HCP" shall mean a Habitat Conservation Plan pursuant to section 10 of the ESA. 2.12 AH P. "AHCP" shall mean an Advance Habitat Conservation Plan. 2.13 NCCP Plan. "NCCP Plan" shall mean the plan for conservation of the coastal sage scrub natural community in the Southern Orange County Subregion, with special emphasis on the Target Species, prepared pursuant to this Agreement The NCCP Plan shall be developed to meet the requirements for issuance of a section 10(a) permit under the ESA and a section 2081 permit under CESA. The NCCP Plan shall be deemed to be an Advance Habitat Conservation Plan and HCP covering the Target Species for purposes of the ESA. 2.14 Planned Activities, 'Planned Activities' shall mean the development of planned communities and major regional infrastructure improvements, including development'of certain transportation corridors, as well as other development activities within the Southern Orange Canty Subregion as physically delineated or evaluated in the NCCP Plan. 2.15 Proposed Listing. 'Proposed listing' shall mean the proposed listing by USFWS of one or more of the Target Species as either an 'endangered species' or a 'threatened species,' the proposed designation of the habitat of any such Target Species as 'critical habitat' pursuant to the ESA, or the proposal to list a Target Species as 'endangered' or "threatened, or to designate a species as a CESA Candidate Species by the California Fish and Game Commission pursuant to CESA. 2.16 Section 10(a) Pe mrt 'Section 10(a) Permir means any permit issued pursuant to section 10(a)(1)(B) of the ESA to permit incidental takings of endangered species or threatened species which may occur as a result of the Planned Activities. -7- NCCP Agreement June 17, 1993 9316000LOC1 • 0 2.17 Section 2081 Permit. "Section 2081 Permit" means any permit issued by CDFG pursuant to the CESA to authorize the take of endangered species or threatened species or CESA Candidate Species which may occur as a result of the Planned Activities. 2.18 Taking . 'taking' or "take' shall have the same meaning as provided in the ESA and 50 C.F.R. 17.3 with regard to any activities subject to the ESA, and shall have the same meaning as provided in state law with regard to activities subject to the CESA. 2.19 Target Soecies. 'Target Species' are: a. California gnatcatcher (Poliootila califomica californica); b. Cactus wren (Campyl rhynchus brunneicaoillus); C. Orange -throated whiptail lizard (Cnemidonhorus hyperythrus ldin r . These species are to be the focus of conservation planning efforts leading to a NCCP Plan for the Southern Orange County Subregion and shall be treated in the NCCP Plan as if they were listed as an endangered species with regard to any NCCP Plan to which section 4.0 shall apply. In the sole discretion of the Local Governments and the Landowner, the NCCP Plan for the Southern Orange County Subregion may identity additional species as Target Species. Addressing the conservation needs of the Target Species is anticipated to provide significant protection for the coastal sage scrub natural community in general. 2.20 Unforeseen Circumstances. "Unforeseen Circumstances" shall mean (i) a significant adverse change in (A) the population of a Target Species, (B) the habitat and other biological resources of the Southern Orange County Subregion, or (C) the anticipated impacts of the Planned Activities or in other factors upon which the NCCP Plan/HCP is based, or (H) any significant new or additional information relevant to an NCCP PIarVHCP {including information presented during a public comment period on a permit application or proposed rule) -that was not anticipated by the Parties at the time the NCCP Plan/HCP was approved and that would likely result in a significant adverse change in (A), (B) or (C) above. The NCCP Plan/HCP will identity significant adverse changes which are anticipated, both in the long and short term. The existence of Unforeseen Circumstances shall be established in accordance with section 4.10 until or unless modified in an approved Implementing Agreement. -8- NCCP Agreement June 17, 1993 3.0 U=14-1111ANE4124 �' 3.1 Project Coordinators. Each party shall designate a Project Coordinator to monitor the implementation of this Agreement and to coordinate communication among the Parties during the NCCP Process. Each party shall notify each other parry of their respective Project Coordinators in writing within fourteen (14) days of the effective date of this Agreement_ 3.2.1 The Parties understand that the Secretary of The Resources Agency of the State of California has convened a Scientific Review Panel ("SRP'). The SRP will review and evaluate existing information regarding the biology, conservation, and protection of Target Species and will develop recommended standards necessary for the conservation and protection of these Target Species throughout the CSS study area. These recommendations will encompass conservation guidelines for the CSS natural community throughout the study area. 3.2.2 Information and analysis undertaken by the SRP shall be presumed to constitute the best information available unless further credible analysis or investigation show the contrary. -8. ._1 •`1l= -_l -lr 11Vil ll=l Y. �*. ri 3.3.1 The NCCP Plan/HCP will be prepared in conjunction with environmental documentation pursuant to the California Environmental Quality Act ("CEQA") and the National Environmental Policy Act ("NEPA7. The Parties intend that public review of the NCCP Plan/HCP and, the CEQA and NEPA documentation will occur simultaneously through the public review process described below in section 3.3.7 and section 3.4. It is contemplated that the NCCP PlarVHCP, the EIR, and the EIS, will be prepared as a single integrated document ('NCCP PlardE1RIEISm). If the NCCP Program is certified pursuant to Public Resources Code Section 21080.5, the NCCP Plan shall satisfy the requirements of Section 21080.5 regarding the preparation of a CEQA environmental document. 3.32 The NCCP PlarVHCP shall treat the Target Species in the Southern Orange County Subregion as though they were listed as *endangered species" under the ESA and CESA for the purposes of developing conservation measures and proposed takings of the Target Species. The Oraft NCCP Plan/HCP for the Southern Orange County Subregion will address the requirements of both the CESA and the ESA- NCCP SA NCCP Agreement June 17, 1993 931680OLOC1 3.3.3 The NCCP Plan/HCP shall be prepared in a manner consistent with the provisions of the Process Guidelines. Consistent with the habitat conservation planning requirements for listed species contained in section 10(a)(2)(A) of the ESA, 50 C.F.R. § 17.22(b) and 50 C.F.R. § 17.32(b) the Draft NCCP PIarVHCP shall specify the habitat requirements for the Target Species, the impacts likely to result from the proposed taking of one or more Target Species, the measures that will be undertaken to monitor, minimize and mitigate for such impacts, the funding that will be made available to undertake such measures, the procedures to address Unforeseen Circumstances, identification of funding mechanisms and other assurances that the NCCP Plan/HCP will be carried out; and additional measures that the CDFG or USFWS may require as necessary or appropriate. The Draft NCCP Plan/HCP shall include provisions governing the amendment of the NCCP Plan/HCP. 3.3.4 The County shall act as Lead Agency for the development of the NCCP Plan/HCP and for preparation of environmental documentation pursuant to CEQA. The Parties acknowledge that the County is appropriately the Lead Agency for preparation of the NCCP Plan/EIR because of the need for county -wide planning and coordination, and because the County will have the greatest responsibility for supervising the NCCP Plan. CDFG shalt act as a Responsible Agency as well as a Trustee Agency under CEQA. Local Governments other than the County shall be Responsible Agencies under CEQA, and shall be consulted in the preparation of the NCCP Plan/EIR, and at a minimum, shall have the opportunities for comment described in section 3.4. 3.3.5 USFWS shall be responsible for compliance with NEPA in connection with the NCCP Plan/HCP. The County shall act as the local co -lead agency for compliance with NEPA pursuant to 40 C.F.R. section 15062(c). To the maximum extent practicable, USFWS will coordinate its obligations under NEPA with corresponding state and local obligations under CEQA and the NCCP Act Coordination is expected to include the following: a. completion of a joint EIR/EIS; b. joint conduct of 'scoping' meetings, public hearingl and participation in other joint NEPA/CEQA activities; C. the joint EIR/EIS shall be prepared and funded in conjunction with the NCCP PlardHCP. 3.3.6 Pursuant to Fish and Game Code section 2840, CDFG shall be compensated for costs incurred in participating in the planning process and reviewing the NCCP Plan. The terms of CDFG compensation shall be set forth in a separate compensation agreement -10- NCCP Agreement June 17. 1993 93166000CI 0 0 3.3.7 A schedule for preparation and distribution for review of the NCCP PlarVHCP and associated environmental documentation, consistent with this Agreement, shall be prepared by the Parties ("NCCP Schedule"). The Parties agree to use their best efforts to comply with the NCCP Schedule. The Parties acknowledge that regular discussions will be convened with conservation representatives in addition to the mandated public involvement procedures required by CEQA and NEPA to solicit their views on the plans and participation in the process. Discussions required by this section are intended to occur concurrent with ongoing review/consultation among Parties to this Agreement. 3.4 Review and Approval of the NCCP Plan/HCP and Environmental Documentation. 3.4.1 The Preliminary Draft NCCP Plan/HCP and associated preliminary draft environmental documentation shall be prepared by a consultant selected by the Parties, consistent with CEQA and NEPA (40 C.F.R. § 1506.5) requirements. The Parties acknowledge that the Landowner will have a primary role in preparing the NCCP Plar1/HCP. The County and USFWS, as co -lead agencies, shall independently review, analyze and supervise the preparation of the CEQA and NEPA documentation before circulating the Plan and environmental document for public review. It is the intent of sections 3.3.7, 3.4.1, 3.4.2, 3.4.3 and 3.4.4 to establish an efficient ongoing process of consultation and coordination between the County, the Landowner, the CDFG and USFWS, and conservation representatives with regard to the preparation of the NCCP Plan/HCP and associated environmental documentation. 3.4.2 The consultant shall submit an outline for a Draft NCCP Plan/HCP to USFWS and the County for review and comments prior to initiation of the CEQA and NEPA public review processes. As soon as possible after submission of such outline, the County and USFWS shall complete review of the outline and determine whether it is sufficiently detailed to justify commencement of the 'scoping' phase of the environmental review process pursuant to NEPA and CEQA. For the purposes of this section and section 3.4.3, the outline will be "sufficiently detailed to justify commencement of the scoping phase" if the outline is adequate to serve as the project description for a Notice of Intent pursuant to 40 C.F.R. § 1508.22 and a Notice of Preparation pursuant to 14 C.C.R. § 15082 If the USFWS concludes that the outline is sufficiently detailed to justify commencement of the 'scoping' phase of the environmental review process, then USFWS shall so advise the County in writing and the County, in cooperation with USFWS, will initiate the joint scoping phase of the environmental review process. USFWS shall publish a Notice of Intent, in accordance with the Department of the Interior NEPA regulations, as soon as possible after advising the County that the outline is complete. The County shall circulate the Notice of Preparation pursuant to 14 C.C.R. § 15082. -11- NCCP Agreement June 17, 1993 9316806L001 0 • 3.4.3 If USFWS determines that the outline for a Draft NCCP Plan/HCP is not sufficiently complete under the ESA to justify commencement of the 'scoping' phase of the environmental review process, USFWS shall provide the consultant with written comments and recommendations for changes necessary or appropriate under the ESA. The consultant will revise the outline consistent with USFWS comments, and, if requested by USFWS, submit a revised outline to USFWS. If a revised outline is submitted to USFWS, the Parties shall repeat the process described in sections 3.4.2 and 3.4.3 until USFWS determines that the outline is sufficiently detailed to justify commencement of the "scoping' phase. Any comments on a revised outline shall address the provisions of the revised outline regarding issues identified in the initial USFWS comments. USFWS shall use their best efforts to raise all significant issues to be considered in the NCCP Plan/HCP during the process in order to ensure that such issues can be efficiently addressed in the preparation of the Draft NCCP Plan/HCP. Nothing in section 3.4.2 or 3.4.3, however, is intended to limit comments by the USFWS and CDFG on the NCCP Plan/HCP during the public review process. 3.4.4 The selected consultant shall develop a Preliminary Draft NCCP Plan/HCP and EIR/EIS ("Preliminary Draft'). The Preliminary Draft shall be circulated to all Parties for review. Comments on the Preliminary Draft shall be submitted to the consultant as soon as possible after the circulation of the Preliminary Draft. The Parties should focus comments on aspects of the Preliminary Draft affecting their property or jurisdiction. The County, as CEQA Lead Agency, has the responsibility to independently review and approve the Preliminary Draft NCCP Plan and has the sole authority to determine the form and content of the Draft and Final NCCP Plan and EIR. 3.4.5 As soon as possible after review of the Preliminary Draft, USFWS shall determine whether the document satisfies applicable NEPA requirements for circulation to the public as a Draft EIS. USFWS, as NEPA Lead Agency, has the responsibility to independently review and approve the EIS, and has sole authority for the content and scope of the EIS. If USFWS concludes that the Preliminary Draft is sufficiently complete to justify release pursuant to NEPA, then USFWS shall so advise the County in writing. USFWS shall publish notice of the availability of the Draft NCCP PlarVHCP/EIR/EIS in the Federal Register as soon as possible after of advising the County that the Preliminary Draft is complete. Following receipt of USFWS approval, and publication in the Federal Register, the County and USFWS will circulate a Draft NCCP Plan/HCP/EIFMS for a public review period of sixty (60) days, pursuant to CEQA and NEPA. 3.4.6 If USFWS determines that the Preliminary Draft is not sufficiently complete to justify circulation as a Draft EIS, USFWS shall provide the consultant with changes necessary or appropriate under NEPA. The consultant, in -12- NCCP Agreement June 17, 1993 931680OLOCI consultation with the Parties, shall revise the Preliminary Draft, and if requested by USFWS, submit a revised Preliminary Draft to USFWS for review pursuant to NEPA. If a revised Preliminary Draft is submitted to USFWS, the Parties shall repeat the process described in sections 3.4.5 and 3.4.6 until USFWS determines that the document meets NEPA requirements for circulation as a Draft EIS. Any comments on a revised Preliminary Draft shall address the provisions of the revised Preliminary Draft regarding issues identified in the initial USFWS comments. The USFWS shall use its best efforts to insure that the period for review and approval of the Preliminary Draft does not exceed ninety (90) days from the submission of the initial Preliminary Draft to the USFWS. 3.4.7 Following the close of the public comment period pursuant to CEOA and NEPA, responses to public comments shall be prepared. As expeditiously as possible thereafter, the County shall finalize the EIR and adopt the NCCP Plan. 3.4.8 As expeditiously as possible after the preparation of responses to public comments, the USFWS shall publish a Notice of Availability of the Final EIS in the Federal Register. USFWS shall prepare a draft Record of Decision ("ROD") pursuant to 40 C.F.R. 1505.7, and draft biological opinion ("BO") and shall submit the draft SO to the County for review and comment. The USFWS shall make a decision on the proposed action, and shall issue the Record of Decision as soon as practicable after the expiration of the thirty day waiting period following publication of the Notice of Availability in the Federal Register. 3.4.9 The Parties acknowledge that the EIR and EIS may be completed separately due to the various requirements of CEOA and NEPA. The County, as the CEOA Lead Agency, has the sole discretion and authority to adopt the NCCP Plan. The USFWS has sole authority to approve the NCCP Plan as an HCP or Advance HCP in accordance with section 10(a) of the ESA and its implementing regulations. 3.4.10 Concurrent with the approval of the NCCP Plan and the Final EIR and Final EIS, one or more of the Parties may enter into an Implementing Agreement with USFWS and CDFG, consistent with the Process Guidelines, specifying all terms and conditions of activities under the NCCP Plan/HCP'and the rights and obligations of the Parties to the Implementing Agreement The execution of the Implementing Agreement shall constitute the formal approval of the NCCP Plan by the Local Governments other than the County, and CDFG, and the execution of the Implementing Agreement shall constitute the legal commitment by Landowner to the implementation of the NCCP Plan. Issuance of a section 10(a) pem* incorporating an NCCP PIarVHCP, including an Implementing Agreement, shall constitute the formal approval by USFWS. If no Target Species has been listed by USFWS as an endangered species or threatened species, execution by USFWS of an Implementing -13- NCCP Agreement June 17, 1993 9316900LJDCI Agreement shall constitute formal approval of an AHCP. The Implementing Agreement will become effective as to any party to the Implementing Agreement upon execution by the Landowner, CDFG, the USFWS and the County. The Parties recognize that regular monitoring activities will be included as part of the Implementing Agreement, and appropriate mechanisms to insure funding of the NCCP Plan/HCP will be included as part of the Implementing Agreement. The Implementing Agreement will be signed by those parties necessary to establish an effective HCP or AHCP. 3.4.11 In reviewing and approving the NCCP Plan/HCP, CDFG shall employ the SRP conservation principles concerning CSS conservation, habitat needs, species distribution and abundance. CDFG shall also review and approve the NCCP Plan in accordance with the purposes and requirements of the CESA, including the provisions of Fish and Game Code section 2081. 3.4.12 In reviewing and approving the NCCP Plan/HCP, USFWS shall apply the provisions of section 10(a) of the ESA, and shall employ, consistent with section 3.2.2, the SRP conservation principles concerning CSS conservation, habitat needs, species distribution and abundance, and other biological considerations, and shall make findings with respect to whether the NCCP Plan/HGP meets the requirements for a habitat conservation plan pursuant to section 10(a) of the ESA. 4.0 EFFECT OF PLAN WITH RESPECT TO SPECIES LISTED OR PROPOSED FOR LISTING. Notwithstanding any other provision in this MOA, this MOA is subject to and shall be carried out in accordance with the ESA, the CESA, or any other applicable federal or state law or regulation. 4.1 CQqnsideration of NCCP Plan in USFWS Decisions. 1n the absence of Unforeseen Circumstances as defined in section 2.20 and 4.10 of this Agreement, and provided an Implementing Agreement has been executed to implement the NCCP Plan/HCP in the Southern Orange County Subregion, USFWS shall (i) consider the NCCP Plan/HCP in any future determinations by the USFWS with regard to the listing of one or more of the Target Species as an endangered species or threatened species, (ii) consider that the satisfactory implementation of the NCCP Plan/HCP and Implementing Agreement will adequately provide for the conservation and protection of the Target Species and their habitats in the Plan area, and regard that the areas included in the approved NCCP PIaMHCP do not require further special management considerations or protection, and m) not prescribe any additional mitigation, enhancement or compensation measures pursuant to the ESA, or other certain statutes specifically addressed and provided for in the NCCP Plan/HCP, with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat �-14- NCCP Agreement June 17, 1993 931680OLOCI 0 0 4.2 Listing of Target Species Before the NCCP Plan Has Been Approved by USFWS. If one or more of the Target Species is listed as an endangered species or threatened species pursuant to the ESA before an NCCP Plan/HCP for the Southern Orange County Subregion is approved by the USFWS, the Landowner, one or more of the Local Governments or TCA may seek authorization to take such Target Species in the conduct of Planned Activities in accordance with the ESA. A draft NCCP Plan/HCP for the Southern Orange County Subregion may be submitted as a proposed HCP for purposes of Section 10(a) of the ESA. 4.3 ESA Listing of Target Species After the NCCP Plan Has Been Approved byUSFWS. in the event that one or more of the Target Species is listed as an endangered species or threatened species pursuant to the ESA after the NCCP Plan/HCP for the Southern Orange County Subregion, including an applicable Implementing Agreement, has been approved by USFWS, the NCCP Plan/HCP shall be adequate documentation to support an application for a Section 10(a) Permit to take such Target Species incidental to the Planned Activities, in the absence of Unforeseen Circumstances. In such event, any Party may submit an application for a Section 10(a) Permit, and the USFWS shall treat the -approved NCCP Plan/HCP and associated Implementing Agreement as a Draft Habitat Conservation Plan for the Southern Orange County Subregion which has been prepared in compliance with section 10(a) of the ESA and, subject to 40 C.F.R. § 1502.9(c), shall treat the NCCP Plan/HCP/E1R/EIS as a final EIS regarding the issuance of the Section 10(a) Permit as authorized by 40 C.F.R. § 1506.3(a). USFWS shall publish notice ("Application Notice") of the Section 10(a) Permit application in the Federal Regfsterpursuant to 16 U.S.C. § 1539(c), as soon as possible after the publication of the final rule in the Federal Register listing the Target Species as an endangered species or threatened species. The USFWS shall, after public review and comment and a determination that all biological and procedural requirements have been met, issue a Section 10(a) Permit on the basis of the NCCP Plan/HCP and Implementing Agreement authorizing incidental takings of the listed species in accordance with the NCCP PIanMCP as soon as possible after publication of the Application Notice in the Federal Register. Unless the USFWS makes a determination that there are Unforeseen Circumstances as provided in section 2.20 and 4.10, in any Section 7 Consultation with regard to the issuance of the Section 10(a) Permit the USFWS shad adopt the biological opinion issued pursuant to section 3.4.8 with regard to the approval of the NCCP PIanAHCP and Implementing Agreement as the biological opinion issued pursuant to Section 7(b) of the ESA. In any Section 7 Consultation that may be required with regard to the Planned Activities, subsequent to the approval of the NCCP Plan/HCP and Implementing Agreement, USFWS intends to rely, to the greatest extent feasible, on the biological opinion issued with regard to the approval of the NCCP PfarVHCP and Implementing Agreement. 4.4 Consideration of NCCP Plan in CDFG Decisions. In the absence of Unforeseen Circumstances as defined in section 2.20 and 4.10 of this Agreement, -15- NCCP Agreement June 17, 1993 9916000L.001 and provided an Implementing Agreement has been executed to implement the NCCP Plan in the Southern Orange County Subregion, CDFG shall (i) consider the NCCP Plan in any future determinations, including but not limited to any recommendations to the California Fish and Game Commission, with regard to the listing of one or more of the Target Species as a CESA Candidate Species, endangered species or threatened species pursuant to the CESA, (ii) consider that the satisfactory implementation of the NCCP Plan and Implementing Agreement will adequately provide for the conservation and protection of the Target Species and their habitats in the Plan Area, and regard that the areas included in the approved NCCP Plan do not require further special management considerations or protection, and (iii) not prescribe any additional mitigation, enhancement or compensation measures -pursuant to CESA, or other certain statutes specifically addressed and provided for in the NCCP Plan, with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. 4.5 Listing of Tar9et Species Before the NCCP Plan Has Been Approved by CDFG. If one or more of the Target Species is listed as a CESA Candidate Species, or as an endangered species or threatened species pursuant to the CESA before an NCCP Plan for the Southern Orange County Subregion has been approved by CDFG, the Landowner, one or more of the Local Governments or TCA may apply for a Section 2081 Permit to take such Target Species incidental to Planned Activities or for an approval pursuant to Fish and Game Code section 2084 ("Section 2084 Approval") to take any such Target Species which are listed as a CESA Candidate Species. A draft NCCP Plan for the Southern Orange County Subregion may be submitted as a proposed habitat management plan for purposes of the Section 2081 Permit application or Section 2084 Approval application. 4.6 Usting of Target Species After the NCCP Plan Has Been Approved By CDFG. Pursuant to Fish and Game Code sections 2825(c), 2830 and 2835, if one or more of the Target Species is listed as a CESA Candidate Species or as an endangered species or threatened species pursuant to the CESA after the NCCP Plan for the Southern Orange County Subregion and associated Implementing Agreement have been approved by CDFG, except where CDFG has made a determination that there are Unforeseen Circumstances as.provided in section 2.20 and 4.10, the NCCP Plan may be considered as a habitat management plan under the requirements of the CESA. The CDFG shall issue a Permit substantially in the form of the NCCP Plan to take the Target Species and its habitat within the Plan area pursuant to section 2081 of the California Fish and Game Code. The CDFG shall rely on the NCCP Plan in making any recommendation to the California Fish and Game Commission with regard to Fish and Game Code section 2084. The CDFG shall consider that the satisfactory implementation of an Implementing Agreement and the NCCP Plan will adequately provide for the conservation, protection, restoration, and enhancement of the Target Species and their habitats in the Plan area. -16- NCCP Agreement June 17, 1993 ssiseoaL-oci 0 0 4.7 Future Permits. This section describes the intent of the Parties with respect to the effect of an approved NCCP PlarVHCP and Implementing Agreement on future permits described in sections 4.7.1 and 4.7.2. These commitments will be made as part of the Implementing Agreement 4.7.1 Except where CDFG or USFWS has determined the existence of Unforeseen Circumstances consistent with the provisions of section 2.20 and 4.10, CDFG or USFWS shall not prescribe, or request of any other agency, any further mitigation, enhancement, or compensation measures pursuant to the ESA or CESA, or other certain statutes specifically addressed and provided for in the NCCP Plan/HCP with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. It is not the intent of this section to limit informal discussion or recommendations between the Panties with regard to the implementation of the NCCP Plan/HCP. It is the intent of this section to assure that recommendations by USFWS and CDFG, in the context of public agency consideration of Planned Activities, conform to the mitigation, enhancement and compensation measures identified in an approved NCCP Plan/HCP and Implementing Agreement. 4.7.2 The Parties to this Agreement acknowledge that the Local Governments and the Landowner may also be subject to permit requirements.of agencies not parties to this Agreement, and to the permit requirements of Fish and Game Code sections 1601 and 1603. In the absence of Unforeseen Circumstances, participation in the NCCP Plan/HCP shall constitute the full extent of the Mitigation Measures required by USFWS pursuant to the ESA and CDFG pursuant to the CESA, and pursuant to other certain statutes specifically addressed and provided for in the NCCP Plan/HCP for the take of Target Species, or the modification of the habitat of the Target Species, related to the Planned Activities within the Southern Orange County Subregion. In addition, in the event that the NCCP Plan/HCP and Implementing Agreement include commitments by the Local Governments and the Landowner to provide for the conservation or protection of biological resources other than the Target Species and their Habitat (e.g., wetiand and riparian areas) the NCCP Plan/HCP and Implementing Agreement may include provisions for the Local Governments or Landowner to receive appropriate mitigation credit for the particular biological resources addressed in the NCCP Plan/HCP to offset any mitigation requirements that may be imposed by the CDFG or other agencies to provide for the conservation or protection of such other biological resources pursuant to any applicable law. 4.8 Future Environmental Documentation. In issuing any permits or other approvals for any Target Spades that is listed as an endangered species or threatened species under the ESA or CESA, or listed as a CESA Candidate Species pursuant to the CESA with regard to Planned Activities, absent Unforeseen Circumstances, and subject to any requirements of CEGA or NEPA (including 40 C.F.R. § 1502.9(c)), USFWS and CDFG shall rely on and shalt utilize the EIR/EIS -17- NCCP Agreement June 17, 1993 931680OLOC1 0 0 prepared in conjunction with the NCCP PIarVHCP as the CEQA and NEPA environmental document for such permits and approvals. The Local Governments shall rely on and shall utilize the E1R prepared in conjunction with the NCCP Plan/HCP in evaluating future planning decisions, and in issuing any permits or other approvals within the Southern Orange County Subregion with regard to the Planned Activities. The Parties understand and intend that the EIR/EIS prepared in conjunction with the NCCP Plan/HCP will operate as a "program" El and EIS pursuant to applicable provisions of the Council on Environmental Quality NEPA regulations (40 C.F.R. § 1500 et seg.), the CEQA Guidelines (14 C.C.R. § 15000 et sea.) and the NCCP Act. Subsequent activities will be examined in light of the program EIR/EIS to determine if additional environmental documentation is required. 4.9 CSS Species. The NCCP Planning Guidelines indicate and the Parties agree that an NCCP Plan/HCP which provides effective conservation measures for the Target Species should provide significant conservation for other CSS Species. USFWS and CDFG agree that they will consider the NCCP Plan/HCP in any future listing determinations with respect to CSS Species identified in the NCCP Plan/HCP, and, in particular, shall consider the adequacy or inadequacy of the approved NCCP Plan/HCP and Implementing Agreement in protecting CSS Species under 16 U.S.C. 1533(a)(1). 4.10 Identification of Unforeseen Circumstances. In order to establish Unforeseen Circumstances, as defined in section 2.20, USFWS or CDFG shall make a formal written determination that Unforeseen Circumstances have occurred, setting forth the basis for the determination. Upon making such a determination, USFWS or CDFG shall notify the Parties to this Agreement regarding the basis for any determination of Unforeseen Circumstances. 5.0 MISCELLANEOUS PROVISIONS. 5.1 Reservation of Rights. Nothing in this Agreement shall be construed as a waiver of any rights or objections that any of the Parties may have with respect to the Proposed Listing of any Target Species, or of any objections to the regulation of activities by CDFG whim do not result in take of any species listed pursuant to the CESA as a. candidate, threatened or endangered species as the term "take" is defined in California Fish and Game Code section 86. Landowner, Local Governments, and TCA reserve their right to oppose any formal listing or Proposed Listing of any Target Species pursuant to the ESA or CESA. USFWS and CDFG reserve the right to proceed with the listing of any Target Species as an endangered species or threatened species and to carry out all of their responsibilities and duties under the ESA and CESA. -18- NCCP Agreement June 17, 1993 931680OLOC1 5.2 Notices. Any notices required or permitted to be given under this Agreement shall be in writing and may be given by personal delivery, facsimile or by United States Postal Service first class mail, and shall be deemed sufficiently given if addressed to the following addresses for the respective Parties: Mr. Michael A. Mantell The Resources Agency 1416 Ninth Street, Suite 1311 Sacramento, California 95814 Mr. Larry Eng California Department of Fish and Game 1416 Ninth Street Sacramento, California 95814 Mr. Gail C. Kobetich U.S. Fish and Wildlife Service Office of Endangered Species 2800 Cottage Way, Roorh E-1823 Sacramento, California 95825 Mr. Thomas Matthews County of Orange Environmental Management Agency 12 Civic Center Plaza, Room 236 Santa Ana, California 92702 Mr. Steve Letterly Transportation Corridor Agencies 345 Clinton Street Costa Mesa, California 92626 Mr. Richard Broming Santa Margarita Company 30211 Avenida de las Barxreras Rancho Santa Margarita, California 92688 -19- NCCP Agreement June 17, 1993 0 Mr. Glen Allen Arvida Company 26471 Crown Valley Parkway, Suite 130 Mission Viejo, California 92691 Mr. Chris Taylor Coto de Caza One Coto de Caza Drive Coto de Caza, California 92679-3602 0 5.3 Headings. The subject headings of the sections of this Agreement are provided for convenience only and shall not effect the construction or interpretation of any of the provisions of the Agreement. 5.4 EnTire Agreement. This Agreement constitutes the full and complete agreement of the Parties and supersedes any and all prior or contemporaneous written or oral negotiations, correspondence, understandings and agreements between the Parties respecting the subject matter hereof. Any supplement, modification or amendment to this Agreement shall be executed in writing by all Parties. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provisions. No waiver shalt be binding unless executed in 'writing by the Party making the waiver. 5.5 Assignment. This Agreement is intended to apply to the Parties and their respective successors and assigns. 5.6 Counterparts. This Agreement may be executed in multiple counterparts and each such executed counterpart shall be deemed an original, all of which together shall constitute a single executed Agreement -20- NCCP Agreement June 17, 1993 9316SOO-OC1 IN WITNESS WHEREOF, the Parties have executed this Memorandum of Agreement effective as of the last date set forth below. Dated• , 1993 CALIFORNIA RESOURCES AGENCY, an agency of the State of California I , I Dated.1993 CALIFORNIA DEPARTMENT OF FISH AND GAME, a depwuklent of The Resources Agency of the State of Caffifonhia. Dated:Ao&i�za 1993 UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the Department of Interior of the United States of America Dated: 1993 COUNTY OF ORANGE, a political subdivision of the State of California W. --- 4L— fide�_Dlrfor of P1 ning, EMA -21- NCCP Agreement April 22. 1993 830e5ovr.00t 0 Dated: ly 1993 Dated: April 28 1993 Dated: 1993 /k{� /3 E FOOTHILUEASTERN TRANSPORTATION CORRIDOR AGENCY, a joint powers authority Title Chief Executive Officer el SANTA MARGARITA COMPANY ARVIDA/JMB PARTNERS, a Florida general partnership By: Arvida/JMB Partners, L.P.-II a Delaware limited partnership, its general partner By: Arvida/JMB Managers, Inc., a Delaware corporation, its general partner By i A thorized Representative Dated: A pL 10 . 1993 COTO DE CAZA• a California limited partnership, By: Chevron Land and Development Company, a Delaware Corporation, or r��poration, General Partner By > I X /�JM.,i,._ T*Ibe Assistant Secretary -22- NCCP Agreement April 22, 1993 9308500 OC1 Dated: May 17 19n4 CITY OF SAN JUAN CAPISTRANO By Tine LLENE PBELL MAYOR Dated: , 1993 Dated: 1993 By Title By Title NCCP Agreement 23- April 22, 1993 930SSwT.00t (V- 1776 1776 October 26, 1994 Mr. Tim Neely Administrator, Planning & Zoning Environmental Management Agency P. O. Box 4048 Santa Ana, California 92702-4048 UWM- 10-47F. to (01111111 Dear Mr. Neely: MEMBERS OF THE CITY COUNCIL COLLENE CAMPBELL GARY- HAUSOORFER GILJONES CAROLYN NASH JEFFVASOUEZ CITY MANAGER GEORGESCARBOROUGH Thank you for forwarding a copy of the Natural Communities Conservation Planning Memorandum of Agreement for the City's signature. The item was approved by the San Juan Capistrano City Council on May 17, 1994. I have typed in the City's signature line on the last page of the Agreement and the Mayor has signed the document. I am returning to you the entire Agreement. When signature by all appropriate agencies is complete, please send the certified copy mentioned in your letter to the City Clerk's Office for the City's official records. Thank you for your cooperation. Very truly yours, C�l Cheryl Johnson City Clerk Enclosure 32AOO PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493.1171 "E :'EERS OF THE CITU COUNCIL a� ^� _OLLENE CAMPBELL `� LI 3ARV L. HAUSOORFER 31L JONES NVQ OfE n'..„a CAROLVN NASH IS ^' 7 o I I 1961 .EFF VASOUEZ 1776 I J\ .aEORGE SCARBOROUGH May 23, 1994 Mr. Timothy S. Neeley Administrator/Planning & Zoning l County of Orange, EMA P. O. Box 4048 Santa Ana, California 92702-4048 Dear Mr. Neeley: At their meeting of May 17, 1994, the City Council of the City of San Juan Capistrano approved participation in the Planning Phase of the Natural Communities Conservation Program for Coastal Sage Scrub Communities and authorized execution of the Memorandum of Agreement. A copy of Resolution No. 94-5-17-6, which sets forth the City Council's action, is included for your information. The City Council added a condition to the Resolution that the Memorandum of Understanding be revised to include a provision that City participation in the Planning phase will not result in any costs to the City. It is my understanding that a signature line for the City will be added Memorandum of Understanding and forwarded to us for signature. If you need any further information, please contact Bill Ramsey at 443-6334. Very truly yours, r Cheryl Johnson City Clerk Enclosure cc: Director of Planning (with copy of Resolution) Bill Ramsey (with copy of Resolution) 0 May 23, 1994 Mr. Timothy S. Neeley Administrator/Planning & Zoning County of Orange, EMA P. O. Box 4048 Santa Ana, California 92702-4048 '.1EMSERS OF THE CITY COUNCIL COLLENE CAMPBELL GARY L. HAUSDORFER GILJONES CAROLYN NASH JEFF VASQUEZ CIT'+GANAGER GEORGE SCARBOROUGH Re: Natural Communities Conservation Program for Coastal Sage Scrub Communities Dear Mr. Neeley: At their meeting of May 17, 1994, the City Council of the City of San Juan Capistrano approved participation in the Planning Phase of the Natural Communities Conservation Program for Coastal Sage Scrub Communities and authorized execution of the Memorandum of Agreement. A copy of Resolution No. 94-5-17-6, which sets forth the City Council's action, is included for your information. The City Council added a condition to the Resolution that the Memorandum of Understanding be revised to include a provision that City participation in the Planning phase will not result in any costs to the City. It is my understanding that a signature line for the City will be added Memorandum of Understanding and forwarded to us for signature. If you need any further information, please contact Bill Ramsey at 443-6334. Very truly yours, Cheryl Johnson Citv Clerk Enclosure cc: Director of Planning (with copy of Resolution) Bill Ramsey (with copy of Resolution) 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO. CALIFORNIA 92675 0 (714) 493-1171 with specific uses for the funds to be determined by the Business Task Force. Staff was directed to reagendize the item when suggestions have been received from the Business Task Force. • l ter•• ur •: 1 : M• • ••: �• • •,t aw Written Communication: Report dated May 17, 1994, from the Planning Director, recommending that the conceptual improvement plans for the installation of a portion of the existing Trabuco Creek sanitary sewer be approved. subject to conditions. Adoption of Resolution Approving Mitigated Negative Declaration and Conceptual Improvement Plans for Portion of the Existing Trabuco Creek Sanitary Sewer: it was moved by Council Member Hatsdorfer, seconded by Council Member Nash. that the following Resolution be adopted: 94 -5 -17 - SEWER BY-PASS - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO. CALIFORNIA, APPROVING A MITIGATED NEGATIVE DECLARATION AND CONCEPTUAL IMPROVEMENT PLANS FOR TRABUCO SEWER BYPASS WITHIN THE CITY OF SAN JUAN CAPISTRANO (CAPITAL IMPROVEMENT PROJECT 700) The motion carried by the following vote: AYES: Council Members Hausdorfer, Jones, Nash. Vasquez, and Mayor Campbell NOES: None ABSENT: None lJ:: • utRVINTI-IMPINWO Written Communication: Report dated May 17, 1994, from the Planning Director, recommending that the City approve its participation in the planning phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities. This item was continued from the meeting of May 3, 1994, because of Council concerns with the positions of environmental groups and organizations such as the National Audubon Society, Sierra Club, National Resources Defense Council, etc. William Ramsey, Senior Plaaner, addressed the CounciPs previously expressed concerns regarding the positions of envhoommtal groups. He advised that Dan Silver of the Endangered Habitat League had urged that the City pattrcate in this effort and support a comprehensive planning approach. Mr. Peter DiSimone of the National Audubon Society had stated it was important for the City to be part of the program. Mr. Tomlinson noted that the program would not involve any cost to the City, and that a condition would be added to the resolution requiring that language to that effect be included in the proposed Memorandum of Agreement. Council Member Vasquez felt that his concerns had been addressed and urged that the implementation phase of the program be monitored. Citv Council Minutes -8- 5/17/94 0 Adootion of Resolution Aonroyina the City's Particinadon in the Planning phase of he NCCp 9 or Coastal Saoe Scrub Commties: It was moved by Council Member Hausdorfer, seconded by Council Member Jones, that the following Resolution be adopted, with a condition requiring a modification to the Memorandum of Agreement: _: tl;: •utulAl U •� ; I I HE Y ANNIN ' FHA (PHASE n - A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO. CALIFORNIA. .APPROVING PARTICIPATION IN THE PLANNING PHASE (PHASE 1) OF THE NATURAL COMMUNITIES CONSERVATION PROGRAM AND AUTHORIZING EXECUTION OF THE MEMORANDUM OF AGREEMENT The motion carried by the following vote: AYES: Council Members Hausdorfer. Jones. Nash. Vasquez. and Mavor Campbell NOES: None ABSENT: None MODIFICATION TO APPROVED SIGN PROGRAM TO ALLOW NATIONAL A ARKS AND LOCOS FOR PLAZA D OBI PO ( TRO /PA SHO 0 tR F) (410.4Q) Written Communications: (1) Report dated May 17, 1994, from the Planning Director, recommending that the previously approved sign program for Plaza Del Obispo be modified to allow the use of nationally registered trademarks and logos, including let4tmg style and cokes, subject to administrative review for compliance with Section 9-3.603(e)(3) of the Municipal Code. (2) Memorandum dated May 17, 1994, from the Planning Director, recommending revised language to ensure that the proposed modification would apply only to the Payless ShoeSource only and not the entire Plaza Del Obispo center. Mr. Tomlinson made an oral presentation. Approval of Modification to Sian Pro"am for Pl"A Del Obispo: It was moved by Council Member Nash, seconded by Council Member Jones, and unanimously carried that the proposed modification to the approved sign program for Plaza Del Obispo be approved allowmg the use of a nationally registered trademark for a proposed Payless ShoeSource, including both lettering and colors, subject to administrative review for compliance with Section 9-3.603(e)(3) of the Municipal Code. This modification shall only apply to the use of the Payless ShoeSource trademark sign. y.I� � „�� • • Ju : tet r. • alrru. ; •.,;: „ : • Jr • Written Communioda: Report dated May 17, 1994, from the Director of Engineering and Building, recommending that a formal voluntary program be established to encourage the retrofitting of unremforced masonry buildings to comply with State law. Dan McFarland, Building Official. trade an oral presentation, explaining that the City has complied with State law but never offrciallv notified the State of the program. City Council Minutes -9- 5117/94 0 0 AGENDA ITEM May 17, 1994 TO: George Scarborough, City Manager FROM: Thomas Tomlinson, Planning Director SUBJECT: Consideration of Participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). RECOMMENDATION By resolution: Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program" (see attached May 3 staff report, Attachment 1, Exhibit A). SITUATION A. Summary and Recommendation The County of Orange has asked the City to participate in the planning phase of the Natural Communities Conservation Program (NCCP), a program to preserve and protect coastal sage scrub habitat. Coastal sage is the primary habitat for the California gnatcatcher, a species of bird protected by Federal and State law until recently. The planning phase represents the inventory and analysis phase of planning and would not commit the City to enrolling City lands in the implementation phase. The Program, conceived in 1991, would serve as a pilot project for similar environmental resource management issues throughout the nation. Participation in the planning phase would be initiated by execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program". A copy of that agreement is provided as an Attachment (see May 3 staff report, Attachment 1, Exhibit A). Staff recommends that the City Council adopt the draft resolution approving participation in the planning phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program. FOR CITY COUNCIL AGEN 0 ZL 0 • City Council Agenda Item -2- May 17, 1994 B. Background The City Council considered this project at their May 3 meeting. At that time, the Council approved a motion continuing consideration to the May 17, 1994 to allow the Council to become more familiar with the proposed program and potential benefits to the City. In particular, the Council expressed an interest in determining the position of environmental groups and organizations (eg. National Audubon Society, Sierra Club, Natural Resources Defense Council, etc.), although specific organizations were not discussed. Staff has worked with the Council members to provide additional information which would assist them in making a better informed decision on this project. ALTERNATE ACTIONS Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). 2. Deny participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). 3. Continue consideration and request additional information from staff. RECOMMENDATION By resolution: Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program". Respectfully submitted, Thomas Tomlinson Planning Director TT:WR:hs Attachment: May 3 City Council Staff Report re; Natural Communities Conservation Program. 0 AGENDA ITEM May 3, 1994 TO: George Scarborough, City Manager FROM: Thomas Tomlinson, Planning Director SUBJECT: Consideration of Participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). RECOMMENDATION By resolution: Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program" (Attachment 1, Exhibit A). SITUATION A. Representative Timothy S. Neeley Administrator/Planning and Zoning County of Orange, Environmental Management Agency Po Box 4048 Santa Ana, California 92702-4048 B. Summary and Recommendation The County of Orange has asked the City to participate in the planning phase of the Natural Communities Conservation Program (NCCPxsee Attachment 2). The Program, conceived in 1991, will serve as a pilot project for similar environmental resource management issues throughout the nation. Primary participants include the following agencies as well as cities and major landowners in the County: o The Califomia Resources Agency. o The California Department of Fish and Game. o The United States Fish and Wildlife Service. o The County of Orange. FOR C1iY COUNCIL AG /� 0 E City Council Agenda Item -2- May 3 1994 Participation in the planning phase would be initiated by execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program". A copy of that agreement is provided as Attachment 1, Exhibit A. Staff recommends that the City Council adopt the attached resolution approving participation in the planning phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program. C. Background The groundwork for the Natural Communities Conservation Program (NCCP) was begun in 1991 in response to the Department of Interior's consideration of listing the "California black - tailed gnatcatcher" as a "threatened" or "endangered species. Such action would have extended protection to all areas of "coastal sage scrub" biotic communities in Southern California. Removal or destruction of such areas would have been classified as "takes" and subject to restrictions prescribed by Federal law. Destruction without Federal permits would be a violation of Federal law and subject to severe penalties. The NCCP Program was developed as an alternative to the provisions of the Federal Endangered Species Act (ESA). The NCCP departs from the relatively inflexible "species" approach of the Endangered Species Act (ESA) and involves a new and rather innovative approach to environmental resources management. The program represents a large-scale, comprehensive approach to resource management which seeks to identify and preserve critical natural habitats which support "threatened" or "endangered" species. The habitat preservation approach, based on current scientific knowledge, appears to be potentially more successful than the individual species approach. Furthermore, the Program would result in a greater level of certainty for the development community as to the expectations of those State and Federal agencies responsible for environmental resource protection. The Ptogmrn has been recently amended to include two phases with two separate agreements. The first phase involves the NCCP planning process including data collection, analysis, mapping, plan preparation, and environmental documentation (EIR/EIS). The second phase will consist of the NCCP Implementation Process in which individual agencies and landowners would consider specific commitments to implement the recommendations and policies of the adopted Plan. The implementation phase would begin following completion and adoption of the NCCP Plan for Coastal Sage Scrub, Southern Orange County Subregion, probably sometime in late 1994 or early 1995. 0 0 City Council Agenda Item -3- May 3 1994 D. Issues Staff have identified the following issues with respect to this project: 1. Would participation in the NCCP planning phase be consistent with the policies and recommendations of the General Plan? 2. Which undeveloped areas of the City include "coastal sage scrub" (CSS) habitat and how would they be affected by the NCCP planning effort? 3. How would the City benefit, directly or indirectly, from participation in the NCCP planning effort? 4. What resources, if any, would the City need to commit in the event it decided to participate in the NCCP planning effort? E. Staff Analysis Would participation in the NCCP planning phase be consistent with the policies and recommendations of the General Plan? The City's Open Space and Conservation Element contains various policies which support actions to preserve natural habitat. While the City s policy focus has been open space preservation, natural habitats constitute an important component of open spaces. The General Plan Policies Plan establishes the following goal: "The City of San Juan Capistrano should give highest priority to acquiring or otherwise preserving large amounts of the present open space within the City. Such open space is defined as large acreage agricultural land or raw undeveloped land, including present park sites. The development of a step-by-step strategy for ensuring the greatest possible amount of open space within San Juan Capistrano is essential to preserving the present character of the City. (OS)" (General Plan Policies Plan, page 2). The General Plan goal clearly establishes open space preservation an important aspect of the City's land planning efforts. More specifically, the Policies Plan establishes the Mowing policy regarding open space preservation: "To achieve the minimum open space goal of 25% of total City area, the city should implement the Open Space Plan which specifies those areas that should be retamed as open space. Widun the contest of establishing permanent open space, the community should select open space not onkjar its visual quality but also for the preservation 0 L City Council Agenda Item -4- Mav 3 1994 and conservation of various natural resources, for outdoor recreation, for preservation of historical and cultural assets and for the protection of public health and safety (OS) (G)" (General Plan Policies Plan, page 2) Clearly, the City's General Plan views open space as comprising various important elements including agriculture, recreation, scenic resources, and natural resource conservation. The NCCP program represents a natural resources conservation effort incorporating an inter jurisdictional approach and regional scale. Based on the provisions of the General Plan, staff concludes the participation would be consistent with the General Plan. 2. Which undeveloped areas of the City include "coastal sage scrub" (CSS) habitat and how would they be affected by the NCCP planning effort? The County has undertaken a major mapping effort through its geographic information systems (GIS) program to accurately map the location of all potential coastal sage scrub. Mapping is not based solely on recent satellite imagery which would provide an accurate "picture" of coastal sage in the region. The present mapping represents a combination of resources including aerial photographs, field surveys conducted as part of development review, habitat conservation programs, and other sources. The County is in the process of field checking the accuracy of their present mapping effort. The County has provided a copy of preliminary mapping completed for the NCCP program which is not reproducible but available for review. In general terms, the County's mapping has identified actual or potential coastal sage scrub habitat in parts of the following areas: o Colinas Ridge open space lands along the northwest boundary of the City. o Hillside area to the north and south of Highland Drive. o hillsides areas bordering the Malaspina Drive area o Portions of Marbella Crest and open space area in Hunt Club II. o Along a segment of San Juan Creek east of La Novice o Portions of Pacific Point and San Juan Meadows. o Much of the Concorde site. o City open space lands acquired as part of the Glendale Federal development. The planning effort would involve more detailed study to verify the presence and extent of coastal sage scrub. If present, those areas would be evaluated based on their size, quality (diversity) and connection/proximity to other habitat areas. In summary, the planning effort will involve further evaluation of the areas noted above. Participation would give the City the opportunity to review and debate the inclusion or exclusion of habitat areas within the NCCP Program. ! 9 City Council Agenda Item -5- May 3 1994 How would the City benefit directly or indirectly, from participation in the NCCP planningeffort? ffort? There are several potential benefits to the City from participation in the NCCP. First, participation in the planning phase makes lands within the City subject to the 4(d) rule of the Federal Endangered Species Act (FESA). Without participation, the City could not allow the development of nor develop any areas designated as coastal sage scrub. The 4(d) rule would allow a take of up to 5% of coastal sage scrub habitat. Any City plans to lease open space areas for agriculture/grazing or develop recreation uses on such areas would be possible under the 4(d) rule, but possibly precluded without participation. Second, participation in the planning effort allows the City to have direct involvement in decisions regarding which areas will be included in the coastal sage scrub habitat. Without such involvement, the City would relinquish potentially important decision- making influence and have would have the conclusions of the planning effort imposed on it. Also, several areas of actual or potential coastal sage scrub occur on projects which have received previous development approval, but have not been developed. Participation would preclude the City from possible exposure to arguments that they have not exercised efforts to protect landowner's development interests. At the same time, City participation is not dependent on individual landowner participation and vice -versa. 4. What resources. if any. would the City need to commit in the event it decided to participate in the NCCP planning effort? Participation in the planning effort would be limited to staff resources (time, materials, and travel). Based on staffs current understanding of the planning process, participation would require limited involvement. Staff resources are discussed in more detail under financial considerations. i. 'I!i i y Participation in the NCCP program would not effect properties situated within the CRA limits. On January 12, 1994, the City Attorney was requested to review the planting agreement and advise of any legal implications or considerations. By memorandum dated April 18, 1994, the City Attorney has indicated he has "no comments at this time" (see Attachment 3). 0 0 City Council Agenda Item -6- May 3 1994 COMMISSIONS/BOARD REVIEW AND RECOMMENDATIONS This project has not been subject to review by the City's advisory Boards and Commissions. FINANCIAL CONSIDERATIONS Participation in the planning phase of the Natural Communities Conservation Program (NCCP) would not result in any direct financial impact on the City. However, staff time to review documents and mapping, prepare reports and correspondence, and attend meetings would require an estimated 120 to 140 person hours (about 6% FTE). A decision to participate in the NCCP Program would result in the opportunity cost of those hours not being devoted to other aspects of the Planning Department's work program. NOTIFICATION None required. ALTERNATE ACTIONS I . Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). 2. Deny participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). 3. Continue consideration and request additional information from staff. RECOMMENDATION By resolution: Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program" (Attachment 1). Respectfully submittal, Thomas Tomlinson Planning Director 0 ! City Council Agenda Item -7- May 3 1994 TT: WR:hs Attachments: 1. Draft resolution approving participation in the planning phase of the Natural Communities Conservation Program (NCCP). Exhibit A: "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program. 2. December 10, 1993 letter from Thomas B. Mathews, Orange County Environmental Management Agency to Tom Tomlinson, Planning Director regarding the NCCP. 3. April 18, 1994 Memorandum from Richard Denhalter, City Attorney to Tom Tomlinson, Planning Director regarding Planning Agreement for the NCCP. (c:\wpwuMVp\nccpcss.cca) RESOLUTION NO. 94-5-17-6 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, APPROVING PARTICIPATION IN THE PLANNING PHASE (PHASE I) OF THE NATURAL COMMUNITIES CONSERVATION PROGRAM AND AUTHORIZING EXECUTION OF THE MEMORANDUM OF AGREEMENT WHEREAS, the County of Orange, California Department of Fish and Game, and the United States Fish and Wildlife Service have developed the Natural Communities Conservation Program as a regional, inter - jurisdictional approach to natural resource management and that program involves two phases, a planting phase and an implementation phase; and, WHEREAS, the County of Orange, as managing agency, has requested the City participate in the planning phase of the Natural Commmities Conservation Program and execute Memorandum of Agreement as an indication of their commitment to participate in the planning phase of the program; and, WHEREAS, participation in the planning phase of the Natural Communities Conservation Program -s not obligate or commit the City to participate in implementation of the recommendations and actions and the i .lementation phase (phase II) will be subject to a separate Memorandum of Agreement; and, WHEREAS, the City's participation in the planning phase of the Natural Communities Conservation Program is statutorily exempt from the provisions of the California Environmental Quality Act pursuant to Section 15262 of the California Environmental Quality Act Guidelines which include "planning and feasibility studies which may lead to future action by an agency"; and, WHEREAS, the General Plan's Open Space and Conservation Element contains certain goals and policies which support natural resource conservation and participation in the planning phase of the Natural Communities Conservation Program is consistent with the goals and policies of the General Plan. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby find that: 1. Participation in the Natural Communities Conservation Program planning phase is consistent with the General Plan's Open Space and Conservation Element which contains certain goals and policies supporting natural resource conservation 2. Preliminary [napping indicates that various areas of the City consist of coastal sage scrub babitat including City -owned open spaces. 3. Participation in the Natural Communities Conservation Program pluming phase would make the City eligible for the 5 % interim take provisions of the 4(d) rule (Federal Endangered Species Act). -1- 0 0 BE IT FURTHER RESOLVED, that the City Council of the City of San Juan Capistrano does hereby approve participation in the Natural Comities Conservation Program pluming phase (phase 1) and authorizes execution of the Memorandum of Agreement provided as Exhibit A, subject to the following: That the Memorandum of Understanding be revised to include a provision that City participation in the planning phase will not result in any costs to the City or reimbursement of charges by the County of Orange or as an alternative, the County of Orange, as Natural Communities Conservation Program Manager, provides written assurance in the form of an executed agreement, providing for the same. PASSED, APPROVED, AND ADOPTED this 17th day of May , 1994. ATTEST: STATE OF CALIFORNIA ) COUNTY OF ORANGE ) sa CITY OF SAN JUAN CAPISTRANO ) I, CHERYL JOHNSON, City Clerk of the City of San Juan Capistrano, California, DO HEREBY CERTIFY that the foregoing is a me and correct copy of Resohrtion No. 94-5-17-6 added by the City Council of the City of San Juan Capistrano, California, at a regular meeting thereof held on the 17th day of May , 1994, by the following vote: AYES: Council Members Jones, Hausdorfer, Nash, Vasquez and Mayor Campbell NOES: None ABSTAIN: None ABSENT: None J a _ L �LJ✓:� 1:1' • 1 i �' :1' -2- MEMORANDUM OF AGREEMENT BY AND AMONG THE CALIFORNIA RESOURCES AGENCY, THE CALIFORNIA DEPARTMENT OF FISH AND GAME, THE UNITED STATES FISH AND WILDLIFE SERVICE, THE COUNTY OF ORANGE, CITIES WITHIN ORANGE COUNTY THE FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY, SANTA MARGARITA COMPANY, , COTO DE CAZA AND ARVIDA REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN FOR THE SOUTHERN ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM -D 2A FT EXHIBIT A 0 MEMORANDUM OF AGREEMENT REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN FOR THE SOUTHERN ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM THIS MEMORANDUM OF AGREEMENT ('MOA' or'Agreement') dated as of 1993 is made by and among the CALIFORNIA RESOURCES AGENCY ("Resources Agency"), an agency of the State of California, CALIFORNIA DEPARTMENT OF FISH AND GAME ('CDFG'), a department of the Resources Agency, the UNITED STATES FISH AND WILDLIFE SERVICE ('USFWS'), an agency of the Department of Interior of the United States of America, the COUNTY OF ORANGE ('County'), a political subdivision of the State of California, the FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY ('TCA'), a joint powers authority, THE CITIES OF (collectively, 'Cities'), SANTA MARGARITA'COMPANY, ARVIDA and COTO DE CAZA. The County, TCA and the Cities may be referred to as'Local Governments'; SANTA MARGARITA COMPANY, ARVIDA and COTO. DE CAZA are referred to as 'Landowner'; and all of the above-described entities may be referred to collectively as 'Parties' and each individually as a'Parv- As among the nonfederal signatories to this MOA, this Agreement serves as the 'Planning Agreement' described in the Southern California Coastal Sage Scrub Natural Community Conservation Planning Process Guidelines (dated September 1, 1992) (the "Process Guidelines"). This Agreement shall be effective as to all executing Parties upon execution by the Resources Agency, CDFG, USFWS, TCA, the County and the Landowner. 1.0 , RECITALS. 1.1 The purpose of this Agreement is to establi§h the guidelines and procedures that will be followed by the Parties in the preparation of a Natural Community Conservation Plan ('NCCP Plan') for the Southern Orange County Subregion. of Orange County with regard to the California gnatcatcher and other related Target Species, as described herein. 1.2 The Natural Community Conservation Planning Program ('NCCP Program') is established by California law under the Natural Community Conservation Planning Act of 1991 (Fish & G. Code, § 2800 gi XM.) ('NCCP Act'). CDFG is the trustee agency implementing the NCCP Act' 1.3 The purpose of the statewide NCCP Program is to provide for regional protection and perpetuation of natural wildlife diversity while allowing 0 compatible and appropriate development and growth. The NCCP Program intends that these goals be achieved through the development and implementation of Natural Community Conservation Plans. The NCCP Program is designed to provide an alternative to current single species conservation efforts by formulating regional, natural community based habitat protection programs to protect the numerous species inhabiting each of the targeted natural communities. The Parties believe that the shift in focus from single species to natural communities will enhance the effectiveness of ongoing species preservation efforts. 1.4 The coastal sage scrub ('CSS') NCCP Program (`CSS NCCP Program") is the first effort to be undertaken pursuant to the NCCP Act. It is intended to be undertaken as a pilot project to develop a process for accelerated conservation planning at a regional scale, and it is contemplated that the NCCP process for coastal sage scrub may serve as a model for other efforts elsewhere in the State. This planning process is sponsored jointly by the California Resources Agency and CDFG, and conducted in cooperation with USFWS, pursuant to a Memorandum of Understanding between CDFG and USFWS dated December 4, 1991. 1.5 The CSS NCCP Program creates a regional planning and management system designed to protect coastal sage scrub habitat and to reconcile conflicts between habitat protection and new development within Southern California. The study area established for the CSS NCCP Program includes existing coastal sage scrub habitat in portions of five counties, including Orange County. The CSS NCCP Program anticipates that NCCP plans will be prepared for designated planning subregions. This Agreement is intended to establish the planning process for development of an NCCP Plan in the Southern Subregion of the CSS NCCP Program. As among the nonfederal signatories to the MOA, the Agreement serves as the 'Planning Agreement* called for in the Process Guidelines. 1.6 The CSS NCCP Program contemplates an 18 month planning period from May 1, 1992 to October 31, 1993. Prior to and during this planning period, landowners and local governments have enrolled in the CSS NCCP Program by entering into voluntary agreements with CDFG. To the extent described in the enrollment agreements, no activity that would cause disturbance of CSS is allowed on land subject to a Landowner or Land Management Agency enrollment agreement during the planning period, other than actions mandated for public safety. This Agreement is not intended to replace the enrollment agreements. 1.7 USFWS and CDFG have identified a number of mammal, bird, reptile and plant species which utilize coastal sage scrub habitat as species which are candidates for, or have been proposed for listing, pursuant to the Federal Endangered Species Act, 16 U.S.C. sections 1531 gtM. ('ESA') or the California Endangered Species Act, f=ish and Game Code sections 2050 in M. ('CESA'). Among these -2- NCCP Agreement June 17, 1993 931680OL_OCI 0 E species are the California gnatcatcher (Poliopfila califomica califomica), the cactus wren (Camp)lorhynchus brunneicapillus), and the orange -throated whiptail lizard (Cnemidophorus hyperythrus beldingi). 1.8 The Landowner is the owner of certain real property situated in the County of Orange, State of California, within the Southern Orange County Subregion (the 'Landowner's Property'). The Landowner's Property is currently used for a variety of purposes including, but not limited to, conservation, agricultural, residential and commercial purposes. 1.9 The Landowner, Local Governments, and TCA, have participated in long-term regional planning efforts to conserve contiguous open space, recreational and wildlife habitat areas. At present in the Southern Subregion of the County, there are approximately 30,040 acres of large habitat areas in dedicated regional open space and project -committed open space. These regional planning efforts have been conducted to reduce and mitigate the impacts of development, and have been coordinated with regional planning of development to meet housing and employment goals and the infrastructure needed to support those goals. The Parties intend that the NCCP Process be integrated with the regional open space planning which has already taken place to identify and ensure appropriate mitigation for impacts on fish and wildlife, and to promote the conservation of broad-based natural communities and species diversity. 1.10 The Parties recognize the important role public and private partnerships play in protecting and enhancing the habitat and survival of species which are presently unlisted as well as those which are listed or proposed for listing. The Parties acknowledge that Congress recognized this role in conjunction with the 1982 Amendments to the ESA. Congress expressed its intent, (H.R. Rep. No. 97-835, 97th Gong., 2d Sess. 30, 31 (1982) regarding encouraging such partnerships for unlisted, as well as listed species, as follows: (a) Application to Unlisted Species "Although the conservation plan is keyed to the permit provisions of the Act which only apply to listed species, the Committee intends that conservation plans may address both listed and unlisted species.' (b) Public Private Partnerships " To the maximum extent possible, the Secretary should utilize this authority under this provision to encourage creative partnerships between the public and private sectors .... -3- NCCP Agreement June 17, 1993 9316WOLOC1 0 0 (c) Long -Term Assurance Provided by and for the Habitat Conservation Plan Pro nent "The Secretary, in determining whether to issue a long-term permit to carry out the conservation plan should consider the extent to which the conservation plan is likely to enhance the habitat of the listed species or increase the long-term survivability of the species or its ecosystem." ... "Permits of 30 or more years duration may be appropriate in order to provide adequate assurances to the private sector to commit to long-term funding for conservation activities or long-term commitments to restrictions on the use of land." (d) Reciprocal Assurances to be Provided by the Service "The Committee intends that the Secretary may utilize this provision to approve conservation plans which provide long- term commitments regarding the conservation of listed as well as unlisted species and long-term assurances to the proponent of the conservation plan that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in accordance with the terms of the plan. In the event that an unlisted species addressed in an approved conservation plan is subsequently listed pursuant to the Act, no further mitigation requirements should be imposed if the conservation plan addressed the conservation of the species and its habitat as if the species were listed pursuant to the Act' 1.11 The CSS NCCP Program, pursuant to California law, provides a mechanism for the furtherance of the goals of the ESA and CESA with respect to conservation of species. In enacting the NCCP Act, the California Legislature stated the following: (a) The continuing population growth in California will. result in increasing demands for dwindling natural resources and result in the continuing decline of the state's wildlife. (b) There is a need for broad-based planning to provide for effective protection and conservation of the state's wildlife heritage while continuing to allow appropriate development and growth. (c) Natural community conservation planning is an effective tool in protecting California's natural diversity while reducing -4- NCCP Agreement June 17, 1993 9316BOOLOC1 conflicts between protection of the state's wildlife heritage and reasonable use of natural resources for economic development. (d) Natural community conservation planning promotes coordination and cooperation among public agencies, landowners, and other private interests, provides a mechanism by which landowners and development proponents can effectively participate in the resource conservation planning process, provides a regional planning focus which can effectively address cumulative impact concerns, minimizes wildlife habitat fragmentation, promotes multispecies management and conservation, provides one option for identifying and ensuring appropriate mitigation for impacts on fish and wildlife, and promotes the conservation of broad based natural communities and species diversity. (e) Natural community conservation planning can provide for efficient u§e and protection of natural and economic resources while promoting greater sensitivity to important elements of the state's critical natural diversity. (f) Natural community conservation planning is an effective planning process which can facilitate early coordination to protect the interest of the state, the federal government, and local public agencies, landowners, and other private parties. (g) Natural community conservation planning is a mechanism that can provide an early planning framework for proposed development projects within the planning area in order to avoid, minimize, and compensate for project impacts to wildlife. (h) Natural community conservation planning is consistent with and will support the fish and wildlife management activities of the Department of Fish and Game in its role as the trustee for fish and wildlife within the state. (i) The purpose of natural community conservation planning is to sustain and restore those species and their habitat identified by the Department of Fish and Game which are necessary to maintain the continued viability of those -5- NCCP Agreement June 17, 1993 9316800LOCI 0 0 biological communities impacted by growth and development. 1.12 The Parties agree that subject to the requirements of the ESA and CESA, in the event that any of the Target Species are listed as a threatened species or an endangered species under the ESA or CESA, or as a candidate species under the CESA, and in the absence of Unforeseen Circumstances, the approved NCCP Plan and Implementing Agreement developed pursuant to this Agreement will be treated as a Habitat Conservation Plan ("HCP") by USFWS in connection with the issuance of Section 10(a) permits, and will be relied on by USFWS in issuing Section 7 biological opinions; and will be treated as a habitat conservation plan by CDFG in connection with the issuance of Section 2081 Permits, and as the basis for findings and determinations pursuant to Fish and Game Code Section 2090 et seg. 2.0 DEFINITIONS. 2.1 California Endangered Species Act. The 'California Endangered Species Act' or'CESA'shall mean the California Endangered Species Act, Fish and Game Code section 2050 et M. 2.2 California Gnatcatcher. The 'California gnatcatcher' or 'gnatcatcher' shall mean the California gnatcatcher (PoliopUla califomica califomica), including the eggs and all other life stages thereof. 2.3 Cactus Wren. 'Cactus wren' shall mean the coastal population of the cactus wren (CampylortWchus brunneicapillus), including the eggs and all other life stages thereof. 2.4 Orange -Throated Whiptail t hard. 'Orange -throated whiptail lizard' shall mean the orange .th(oated whiptail lizard (Cnemidophorus hyperythrus beldingr) including the eggs and all other life stages thereof. 2.5 Conservation Representatives . `Conservation representatives" shall mean representatives of national and local environmental groups. 2.6 Southern Orange Coup Subregion. The 'Southem Orange County Subregion' as generally shown in Exhibit A, attached hereto, refers to the Southern Orange County subregion of the CSS NCCP Program within Orange County. This Agreement is intended to establish the planning process leading to an NCCP Plan covering the Southern Orange County Subregion. 2.7 CESA Candidate Species. "CESA Candidate Species" shall mean . those species listed as candidates for listing as endangered or threatened pursuant to Fish and Game Code section 2074.2. -6- NCCP Agreement June 17, 1993 9316WOL-OCI • 2.8 CSS Species. "CSS Species" shall mean those species other than the Target Species, associated with coastal sage scrub habitat, including but not limited to those species identified by the Scientific Review Panel ("SRP") as associated with coastal sage scrub habitat. CSS Species will be identified in each subregionai NCCP Plan. 2.9 Endangered Species Amt. "Endangered Species Acr or'ESA' shall mean the Federal Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seg. 2.10 Habita. "Habitat" shall mean the area occupied by or suitable for occupation by particular wildlife species. Areas capable of restoration may be considered habitat for Target Species, for purposes of mitigation. 2.11 HCP. "HCP" shall mean a Habitat Conservation Plan pursuant to section 10 of the ESA. 2.12 AHCP. "AHCP" shall mean an Advance Habitat Conservation Plan. 2.13 NCCP Plan. "NCCP Plan" shall mean the plan for conservation of the coastal sage scrub natural community in the Southern Orange County Subregion, with special emphasis on the Target Species, prepared pursuant to this Agreement The NCCP Plan shall be developed to meet the requirements for issuance of a section 10(a) permit under the ESA and a section 2081 permit under CESA. The NCCP Plan shall be deemed to be an Advance Habitat Conservation Plan and HCP covering the Target Species for purposes of the ESA 2.14 Planned Activities. 'Planned Activities' shall mean the development of planned communities and major regional infrastructure improvements, including development'of certain transportation corridors, as well as other development activities within the Southern Orange County Subregion as physically delineated or evaluated in the NCCP Plan. 2.15 Proposed Listing. 'Proposed listing' shall mean the proposed listing by USFWS of one or more of the Target Species as either an 'endangered species' or a'threatened species,' the proposed designation of the habitat of any such Target Species as 'critical habitat' pursuant to the ESA, or the proposal to list a Target Species as "endangered" or "threatened', or to designate a species as a CESA Candidate Species by the California Fish and Game Commission pursuant to CESA. 2.16 Section 10(a) Pe mut 'Section 10(a) Permir means any permit issued pursuant to section 10(a)(1)(B) of the ESA to permit incidental takings of endangered species or threatened species which may occur as a result of the Planned Activities. -7- NCCP Agreement June 17, 1993 9316600LOC/ 2.17 Section 2081 Permit. "Section 2081 Permit" means any permit issued by CDFG pursuant to the CESA to authorize the take of endangered species or threatened species or CESA Candidate Species which may occur as a result of the Planned Activities. 2.18 Taking. 'taking' or "take" shall have the same meaning as provided in the ESA and 50 C.F.R. 17.3 with regard to any activities subject to the ESA, and shall have the same meaning as provided in state law with regard to activities subject to the CESA. 2.19 Target Species. 'Target Species" are: a. California gnatcatcher (Poliofila califomica californica); b. Cactus wren (CamQvlorhynchus brunneicaglLs); C. Orange -throated whiptail lizard (Cnemidophorus hyperythrus bel in r . These species are to be the focus of conservation planning efforts leading to a NCCP Plan for the Southern Orange County Subregion and shall be treated in the NCCP Plan as if they were listed as an endangered species with regard to any NCCP Plan to which section 4.0 shall apply. In the sole discretion of the Local Governments and the Landowner, the NCCP Plan for the Southern Orange County Subregion may identify additional species as Target Species. Addressing the conservation needs of the Target Species is anticipated to provide significant protection for the coastal sage scrub natural community in general. 2.20 Unforeseen Circumstances. "Unforeseen Circumstances" shall mean (i) a significant adverse change in (A) the population of a Target Species, (B) the habitat and other biological resources of the Southern Orange County Subregion, or (C) the anticipated impacts of the Planned Activities or in other factors upon which the NCCP Plan/HCP is based, or (ii) any significant new or additional information relevant to an NCCP Plan/HCP (including information presented during a public comment period on a permit application or proposed rule) -that was not anticipated by the Parties at the time the NCCP Plan/HCP was approved and that would likely result in a significant adverse change in (A), (B) or (C) above. The NCCP Plan/HCP will identify significant adverse changes which are anticipated, both in the long and short term. The existence of Unforeseen Circumstances shall be established in accordance with section 4.10 until or unless modified in an approved Implementing Agreement. -8- NCCP Agreement June 17, 1993 9316BOOLOCI 0 10 3.0 RESPONSIBILITIES AND PROCEDURES FOR DEVELOPMENT AND APPROVAL OF THE PLAN. 3.1 Project Coordinators. Each party shall designate a Project Coordinator to monitor the implementation of this Agreement and to coordinate communication among the Parties during the NCCP Process. Each party shall notify each other party of their respective Project Coordinators in writing within fourteen (14) days of the effective date of this Agreement.. 3.2 Biological Data 3.2.1 The Parties understand that the Secretary of The Resources Agency of the State of California has convened a Scientific Review Panel ('SRP'). The SRP will review and evaluate existing information regarding the biology, conservation, and protection of Target Species and will develop recommended standards necessary for the conservation and protection of these Target Species throughout the CSS study area- These recommendations will encompass conservation guidelines for the CSS natural community throughout the study area. 3.2.2 Information and analysis undertaken by the SRP shall be presumed to constitute the best information available unless further credible analysis or investigation show the contrary. 3.3.1 The NCCP Plar/HCP will be prepared in conjunction with environmental documentation pursuant to the California Environmental Quality Act ('CEQA') and the National Environmental Policy Act ('NEPA'). The Panties intend that public review of the NCCP Plan/HCP and, the CEQA and NEPA documentation will occur simultaneously through the public review process descnbed below in section 3.3.7 and section 3.4. It is contemplated that the NCCP PlarMCP, the EIR, and the EIS, will be prepared as a single integrated document ('NCCP Plan/EIR/EIS'. If the NCCP Program is certified pursuant to Public Resources Code Section 21080.5, the NCCP Plan shall satisfy the requirements of Section 21080.5 regarding the preparation of a CEQA environmental document. 3.3.2 The NCCP PIaL'HCP shall treat the Target Species in the Southern Orange County Subregion as though they were listed as 'endangered species' under the ESA and CESA for the purposes of developing conservation measures and proposed takings of the Target Species. The Draft NCCP Plan/HCP for the Southern Orange County Subregion will address the requirements of both the CESA and the ESA- NCCP Agreement June 17, 1993 931e800L.xI 3.3.3 The NCCP Plan/HCP shall be prepared in a manner consistent with the provisions of the Process Guidelines. Consistent with the habitat conservation planning requirements for listed species contained in section 10(a)(2)(A) of the ESA, 50 C.F.R. § 17.22(b) and 50 C.F.R. § 17.32(b) the Draft NCCP Plan/HCP shall specify the habitat requirements for the Target Species, the impacts likely to result from the proposed taking of one or more Target Species, the measures that will be undertaken to monitor, minimize and mitigate for such impacts, the funding that will be made available to undertake such measures, the procedures to address Unforeseen Circumstances, identification of funding mechanisms and other assurances that the NCCP Plan/HCP will be carried out; and additional measures that the CDFG or USFWS may require as necessary or appropriate. The Draft NCCP Plan/HCP shall include provisions governing the amendment of the NCCP Plan/HCP. 3.3.4 The County shall act as Lead Agency for the development of the NCCP Plan/HCP and for preparation of environmental documentation pursuant to CEQA. The Parties acknowledge that the County is appropriately the Lead Agency for preparation of the NCCP Plan/EIR because of the need for county -wide planning and coordination, and because the County will have the greatest responsibility for supervising the NCCP Plan. CDFG shall act as a Responsible Agency as well as a Trustee Agency under CEQA. Local Governments other than the County shall be Responsible Agencies under CEQA, and shall be consulted in the preparation of the NCCP Plan/EIR, and at a minimum, shall have the opportunities for comment described in section 3.4. 3.3.5 USFWS shall be responsible for compliance with NEPA in connection with the NCCP Plan/HCP. The County shall act as the local co -lead agency for compliance with NEPA pursuant to 40 C.F.R. section 1506.2(c). To the maximum extent practicable, USFWS will coordinate its obligations under NEPA with corresponding state and local obligations under CEQA and the NCCP Act Coordination is expected to include the following: a. completion of a joint EIR/EIS; b. joint conduct of 'scoping' meetings, public hearingg and • participation in other joint NEPA/CEQA activities; C. the joint ElR/EIS shall be prepared and funded in conjunction with the NCCP Plan/HCP. 3.3.6 Pursuant to Fish and Game Code section 2840, CDFG shall be compensated for costs incurred in participating in the planning process and reviewing the NCCP Plan. The terns of CDFG compensation shall be set forth in a separate compensation agreement. -10- NCCP Agreement June 17, 1993 43168001 ACI 0 9 3.3.7 A schedule for preparation and distribution for review of the NCCP Plan/HCP and associated environmental documentation, consistent with this Agreement, shall be prepared by the Parties ("NCCP Schedule"). The Parties agree to use their best efforts to comply with the NCCP Schedule. The Parties acknowledge that regular discussions will be convened with conservation representatives in addition to the mandated public involvement procedures required by CEQA and NEPA to solicit their views on the plans and participation in the process. Discussions required by this section are intended to occur concurrent with ongoing review/consultation among Parties to this Agreement. 3.4 Review and Aooroval of the NCCP Plan/HCP and Environmental Documentation. 3.4.1 The Preliminary Draft NCCP Plan/HCP and associated preliminary draft environmental documentation shall be prepared by a consultant selected by the Parties, consistent with CEQA and NEPA (40 C.F.R. § 1506.5) requirements. The Parties acknowledge that the Landowner will have a primary role in preparing the NCCP Plan/HCP. The County and USFWS, as co -lead agencies, shall independently review, analyze and supervise the preparation of the CEQA and NEPA documentation before circulating the Plan and environmental document for public review. It is the intent of sections 3.3.7, 3.4.1, 3.4.2, 3.4.3 and 3.4.4 to establish an efficient ongoing process of consultation and coordination between the County, the Landowner, the CDFG and USFWS, and conservation representatives with regard to the preparation of the NCCP Plan/HCP and associated environmental documentation. 3.4.2 The consultant shall submit an outline for a Draft NCCP Plan/HCP to USFWS and the County for review and comments prior to initiation of the CEQA and NEPA public review processes. As soon as possible after submission of such outline, the County and USFWS shall complete review of the outline and determine whether it is sufficiently detailed to justify commencement of the "scoping" phase of the environmental review process pursuant to NEPA and CEQA. For the purposes of this section and section 3.4.3, the outline will be "sufficiently detailed to justify commencement of the scoping phase" if the outline is adequate to serve as the project description for a Notice of Intent pursuant to 40 C.F.R. § 1508.22 and a Notice of Preparation pursuant to 14 C.C.R. § 15082. If the USFWS concludes that the outline is sufficiently detailed to justify commencement of the "scoping" phase of the environmental review process, then USFWS shall so advise the County in writing and the County, in cooperation with USFWS, will initiate the joint scoping phase of the environmental review process. USFWS shall publish a Notice of Intent, in accordance with the Department of the Interior NEPA regulations, as soon as possible after advising the County that the outline is complete. The County shall circulate the Notice of Preparation pursuant to 14 C.C.R. § 15082. -t 1- NCCP Agreement June 17, 1993 931690OLOCI 0 0 3.4.3 If USFWS determines that the outline for a Draft NCCP Plart/HCP is not sufficiently complete under the ESA to justify commencement of the 'scoping' phase of the environmental review process, USFWS shall provide the consultant with written comments and recommendations for changes necessary or appropriate under the ESA. The consultant will revise the outline consistent with USFWS comments, and, if requested by USFWS, submit a revised outline to USFWS. If a revised outline is submitted to USFWS, the Paries shall repeat the process described in sections 3.4.2 and 3.4.3 until USFWS determines that the outline is sufficiently detailed to justify commencement of the "scoping" phase. Any comments on a revised outline shall address the provisions of the revised outline regarding issues identified in the initial USFWS comments. USFWS shall use their best efforts to raise all significant issues to be considered in the NCCP Plan/HCP during the process in order to ensure that such issues can be efficiently addressed in the preparation of the Draft NCCP Plan/HCP. Nothing in section 3.4.2 or 3.4.3, however, is intended to limit comments by the USFWS and CDFG on the NCCP Plan/HCP during the public review process. 3.4.4 The selected consultant shall develop a Preliminary Draft NCCP PIarVHCP and EIR/EIS ("Preliminary Draft"). The Preliminary Draft shall be circulated to all Parties for review. Comments on the Preliminary Draft shall be submitted to the consultant as soon as possible after the circulation of the Preliminary Draft. The Parties should focus comments on aspects of the Preliminary Draft affecting their property or jurisdiction. The County, as CEQA Lead Agency, has the responsibility to independently review and approve the Preliminary Draft NCCP Plan and has -the sole authority to determine the form and content of the Draft and Final NCCP Plan and EIR. 3.4.5 As soon as possible after review of the Preliminary Draft, USFWS shall determine whether the document satisfies applicable NEPA requirements for circulation to the public as a Draft EIS. USFWS, as NEPA Lead Agency, has the responsibility to independently review and approve the EIS, and has sole authority for the content and scope of the EIS. If USFWS concludes that the Preliminary Draft is sufficiently complete to justify release pursuant to NEPA, then USFWS shall so advise the County in writing. USFWS shall publish notice of the availability of the Draft NCCP Plan/HCP/EIR/EIS in the Federal Registeras soon as possible after of advising the County that the Preliminary Draft is complete. Following receipt of USFWS approval, and publication in the Federal Register, the County and USFWS will circulate a Draft NCCP Plan/HCP/EIR/EIS for a public review period of sixty (60) days, pursuant to CEQA and NEPA. 3.4.6 If USFWS determines that the Preliminary Draft is not sufficiently complete to justify circulation as a Draft EIS, USFWS shall provide the consultant with changes necessary or appropriate under NEPA. The consultant, in -12- NCCP Agreement June 17,1993 9316800LOC1 0 consultation with the Parties, shall revise the Preliminary Draft, and if requested by USFWS, submit a revised Preliminary Draft to USFWS for review pursuant to NEPA. If a revised Preliminary Draft is submitted to USFWS, the Parties shall repeat the process described in sections 3.4.5 and 3.4.6 until USFWS determines that the document meets NEPA requirements for circulation as a Draft EIS. Any comments on a revised Preliminary Draft shall address the provisions of the revised Preliminary Draft regarding issues identified in the initial USFWS comments. The USFWS shall use its best efforts to insure that the period for review and approval of the Preliminary Draft does not exceed ninety (90) days from the submission of the initial Preliminary Draft to the USFWS. 3.4.7 Following the close of the public comment period pursuant to CERA and NEPA, responses to public comments shall be prepared. As expeditiously as possible thereafter, the County shall finalize the EIR and adopt the NCCP Plan. 3.4.8 As expeditiously as possible after the preparation of responses to public comments, the USFWS shall publish a Notice of Availability of the Final EIS in the Federal Register. USFWS shall prepare a draft Record of Decision ("ROD") pursuant to 40 C.F.R. 1505.7, and draft biological opinion ("BO") and shall submit the draft BO to the County for review and comment. The USFWS shall. make a decision on the proposed action, and shall issue the Record of Decision as soon as practicable after the expiration of the thirty day waiting period following publication of the Notice of Availability in the Federal Register. 3.4.9 The Parties acknowledge that the EIR and EIS may be completed separately due to the various requirements of CEQA and NEPA. The County, as the CEQA Lead Agency, has the sole discretion and authority to adopt the NCCP Plan. The USFWS has sole authority to approve the NCCP Plan as an HCP or Advance HCP in accordance with section 10(a) of the ESA and its implementing regulations. 3.4.10 Concurrent with the approval of the NCCP Plan and the Final. EIR and Final EIS, one or more of the Parties may enter into an Implementing Agreement with USFWS and CDFG, consistent with the Process Guidelines, specifying all terms and conditions of activities under the NCCP Plan/HCP-and the rights and obligations of the Parties to the Implementing Agreement. The execution of the Implementing Agreement shall constitute the formal approval of the NCCP Plan by the Local Governments other than the County, and CDFG, and the execution of the Implementing Agreement shall constitute the legal commitment by Landowner to the implementation of the NCCP Plan. Issuance of a section 10(a) permit incorporating an NCCP Plart/HCP, including an Implementing Agreement, shall constitute the formal approval by USFWS. If no Target Species has been listed by USFWS as an endangered species or threatened species, execution by USFWS of an Implementing -13- NCCP Agreement June 17, 1993 9+1ee00L.oci 0 0 Agreement shall constitute formal approval of an AHCP. The Implementing Agreement will become effective as to any party to the Implementing Agreement upon execution by the landowner, CDFG, the USFWS and the County. The Parties recognize that regular monitoring activities will be included as part of the Implementing Agreement, and appropriate mechanisms to insure funding of the NCCP Plan/HCP will be included as part of the Implementing Agreement. The Implementing Agreement will be signed by those parties necessary to establish an effective HCP or AHCP. 3.4.11 In reviewing and approving the NCCP Plan/HCP, CDFG shall employ the SRP conservation principles concerning CSS conservation, habitat needs, species distribution and abundance. CDFG shall also review and approve the NCCP Plan in accordance with the purposes and requirements of the CESA, including the provisions of Fish and Game Code section 2081. 3.4.12 In reviewing and approving the NCCP Plan/HCP, USFWS shall apply the provisions of section 10(a) of the ESA, and shall employ, consistent with section 3.2.2, the SRP conservation principles conceming CSS conservation, habitat needs, species distribution and abundance, and other biological considerations, and shall make findings with respect to whether the NCCP Plan/HGP meets the requirements for a habitat conservation plan pursuant to section 10(a) of the ESA. 4.0 EFFECT OF PLAN WITH RESPECT TO SPECIES LISTED OR PROPOSED EOR LISTING. Notwithstanding any other provision in this MOA, this MOA is subject to and shall be carried out in accordance with the ESA, the CESA, or any other applicable federal or state law or regulation. 4.1 Consideration of NCCP Plan in USFWS Decisions. In the absence of Unforeseen Circumstances as defined in section 2.20 and 4.10 of this Agreement, and provided an Implementing Agreement has been executed to implement the NCCP Plan/HCP in the Southern Orange County Subregion, USFWS shall (i) consider the NCCP Plan/HCP in any future determinations by the USFWS with regard to the listing of one or more of the Target Species as an endangered species or threatened species, (ii) consider that the satisfactory implementation of the NCCP Plan/HCP and Implementing Agreement will adequately provide for the conservation and protection of the Target Species and their habitats in the Plan area, and regard that the areas included in the approved NCCP Plan/HCP do not require further special management considerations or protection, and (ii) not prescribe any additional mitigation, enhancement or compensation measures pursuant to the ESA, or other certain statutes specifically addressed and provided for in the NCCP Plar/HCP, with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. -14- NCCP Agreement June 17, 1993 9316BOOLOCI 4.2 Listing of Target Soecies Before the NCCP Plan Has Been Approved by USFWS. If one or more of the Target Species is listed as an endangered species or threatened species pursuant to the ESA before an NCCP Plan/HCP for the Southern. Orange County Subregion is approved by the USFWS, the Landowner, one or more of the Local Governments or TCA may seek authorization to take such Target Species in the conduct of Planned Activities in accordance with the ESA. A draft NCCP Plan/HCP for the Southern Orange County Subregion may be submitted as a proposed HCP for purposes of Section 10(a) of the ESA. 4.3 ESA listing of Target Species After the NCCP Plan Has Been Approved by USFWS. In the event that one or more of the Target Species is listed as an endangered species or threatened species pursuant to the ESA after the NCCP Plan/HCP for the Southern Orange County Subregion, including an applicable Implementing Agreement, has been approved by USFWS, the NCCP Pian/HCP shall be adequate documentation to support an application for a Section 10(a) Permit to take such Target Species incidental to the Planned Activities, in the absence of Unforeseen Circumstances. In such event, any Party may submit an application for a Section 10(a) Permit, and the USFWS shall treat the -approved NCCP Plan/HCP and associated Implementing Agreement as a Draft Habitat Conservation Plan for the Southern Orange County Subregion which has been prepared in compliance with section 10(a) of the ESA and, subject to 40 C.F.R. § 1502.9(c), shall treat the NCCP Plan/HCP/EIR/EIS as a final EIS regarding the issuance of the Section 10(a) Permit as authorized by 40 C.F.R. § 1506.3(a). USFWS shall publish notice ("Application Notice") of the Section 10(a) Permit application in the Federal Register pursuant to 16 U.S.C. § 1539(c), as soon as possible after the publication of the final rule in the Federal Register listing the Target Species as an endangered species or threatened species. The USFWS shall, after public review and comment and a determination that all biological and procedural requirements have been met, issue a Section 10(a) Permit on the basis of the NCCP PlanlHCP and Implementing Agreement authorizing incidental takings. of the listed species in accordance with the NCCP PlaMiCP as soon as possible after publication of the Application Notice in the Federal Register. Unless the USFWS makes a determination that there are Unforeseen Circumstances as provided in section 2.20 and 4.10, in any Section 7 Consultation with regard to the issuance of the Section 10(a) Permit the USFWS shall adopt the biological opinion issued pursuant to section 3.4.8 with regard to the approval of the NCCP Plan/HCP and Implementing Agreement as the biological opinion issued pursuant to Section 7(b) of the ESA. In any Section 7 Consultation that may be required with regard to the Planned Activities, subsequent to the approval of the NCCP Plan/HCP and Implementing Agreement, USFWS intends to rely, to the greatest extent feasible, on the biological opinion issued with regard to the approval of the NCCP PlarVHCP and Implementing Agreement. 4.4 Consideration of NCCP Plan in CDFG Decisions. In the absence of Unforeseen Circumstances as defined in section 2.20 and 4.10 of this Agreement, -15- NCCP Agreement June 17, 1993 9318800LOC1 and provided an Implementing Agreement has been executed to implement the NCCP Plan in the Southern Orange County Subregion, CDFG shall (i) consider the NCCP Plan in any future determinations, including but not limited to any recommendations to the California Fish and Game Commission, with regard to the listing of one or more of the Target Species as a CESA Candidate Species, endangered species or threatened species pursuant to the CESA, (ii) consider that the satisfactory implementation of the NCCP Plan and Implementing Agreement will adequately provide for the conservation and protection of the Target Species and their habitats in the Plan Area, and regard that the areas included in the approved NCCP Plan do not require further special management considerations or protection, and (iii) not prescribe any additional mitigation, enhancement or compensation measures -pursuant to CESA, or other certain statutes specifically addressed and provided for in the NCCP Plan, with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. 4.5 Listing of Target Species Before the NCCP Plan Has Been Approved by CDFG. If one or more of the Target Species is listed as a CESA Candidate Species, or as an endangered species or threatened species pursuant to the CESA before an NCCP Plan for the Southern Orange County Subregion has been approved by CDFG, the Landowner, one or more of the Local Governments or TCA may apply for a Section 2081 Permit to take such Target Species incidental to Planned Activities or for an approval pursuant to Fish and Game Code section 2084 ("Section 2084 Approval") to take any such Target Species which are listed as a CESA Candidate Species. A draft NCCP Plan for the Southern Orange County Subregion may be submitted as a proposed habitat management plan for purposes of the Section 2081 Permit application or Section 2084 Approval application. 4.6 Listing of Target Shies After the NCCP Plan Has Been Approved By CDFG. Pursuant to Fish and Game Code sections 2825(c), 2830 and 2835, if one or more of the Target Species is listed as a CESA Candidate Species or as an endangered species or threatened species pursuant to the CESA after the NCCP Plan for the Southern Orange County Subregion and associated Implementing Agreement have been approved by CDFG, except where CDFG has made a determination that there are Unforeseen Circumstances as.provided in section 2.20 and 4.10, the NCCP Plan may be considered as a habitat management plan under the requirements of the CESA. The CDFG shall issue a Permit substantially in the form of the NCCP Plan to take the Target Species and its habitat within the Plan area pursuant to section 2081 of the California Fish and Game Code. The CDFG shall rely on the NCCP Plan in making any recommendation to the California Fish and Game Commission with regard to Fish and Game Code section 2084. The CDFG shall consider that the satisfactory implementation of an Implementing Agreement and the NCCP Plan will adequately provide for the conservation, protection, restoration, and enhancement of the Target Species and their habitats in the Plan area. -16- NCCP Agreement June 17, 1993 93168001 -AC 1 Ll 0 4.7 Future Permits. This section describes the intent of the Parties with respect to the effect of an approved NCCP Plan/HCP and Implementing Agreement on future permits described in sections 4.7.1 and 4.7.2. These commitments will be made as part of the Implementing Agreement 4.7.1 Except where CDFG or USFWS has determined the existence of Unforeseen Circumstances consistent with the provisions of section 2.20 and 4.10, CDFG or USFWS shall not prescribe, or request of any other agency, any further mitigation, enhancement, or compensation measures pursuant to the ESA or CESA, or other certain statutes specifically addressed and provided for in the NCCP Plan/HCP with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. It is not the intent of this section to limit informal discussion or recommendations between the Parties with regard to the implementation of the NCCP Plan/HCP. It is the intent of this section to assure that recommendations by USFWS and CDFG, in the context of public agency consideration of Planned Activities, conform to the mitigation, enhancement and compensation measures identified in an approved NCCP Plan/HCP and Implementing Agreement. 4.7.2 The Parties to this Agreement acknowledge that the Local Governments and the Landowner may also be subject to permit requirements.of agencies not parties to this Agreement, and to the permit requirements of Fish and Game Code sections 1601 and 1603. In the absence of Unforeseen Circumstances, participation in the NCCP Plan/HCP shall constitute the full extent of the Mitigation Measures required by USFWS pursuant to the ESA and CDFG pursuant to the CESA, and pursuant to other certain statutes specifically addressed and provided for in the NCCP Plan/HCP for the take of Target Species, or the modification of the habitat of the Target Species, related to the Planned Activities within the Southern Orange County Subregion. In addition, in the event that the NCCP Plan/HCP and Implementing Agreement include commitments by the Local Governments and the Landowner to provide for the conservation or protection of biological resources other than the Target Species and their Habitat (e.g., wetland and riparian areas) the NCCP Plan/HCP and Implementing Agreement may include provisions for the Local Governments or Landowner to receive appropriate mitigation credit for the particular biological resources addressed in the NCCP Plan/HCP to offset any mitigation requirements that may be imposed by the CDFG or other agencies to provide for the conservation or protection of such other biological resources pursuant to any applicable law. 4.8 Future Environmental Documentation. In issuing any permits or other approvals for any Target Species that is listed as an endangered species or threatened species under the ESA or CESA, or listed as a CESA Candidate Species pursuant to the CESA with regard to Planned Activities, absent Unforeseen Circumstances, and subject to any requirements of CEQA or NEPA (including 40 C.F.R. § 1502.9(c)), USFWS and CDFG shad rely on and shall utilize the EIR/EIS -17- NCCP Agreement June 17, 1993 931680OLOCI 0 0 prepared in conjunction with the NCCP Plan/HCP as the CEQA and NEPA environmental document for such permits and approvals. The Local Governments shall rely on and shall utilize the EIR prepared in conjunction with the NCCP Plan/HCP in evaluating future planning decisions, and in issuing any permits or other approvals within the Southern Orange County Subregion with regard to the Planned Activities. The Parties understand and intend that the EIR/EIS prepared in conjunction with the NCCP Plan/HCP will operate as a "program" OR and EIS pursuant to applicable provisions of the Council on Environmental Quality NEPA regulations (40 C.F.R. § 1500 et seg.), the CEQA Guidelines (14 C.C.R. § 15000 et seg.) and the NCCP Act. Subsequent activities will be examined in light of the program EIR/EIS to determine if additional environmental documentation is required. 4.9 CSS Species. The NCCP Planning Guidelines indicate and the Parties agree .that an NCCP Plan/HCP which provides effective conservation measures for the Target Species should provide significant conservation for other CSS Species. USFWS and CDFG agree that they will consider the NCCP Plan/HCP in any future listing determinations with respect to CSS Species identified in the NCCP Plan/HCP, and, in particular, shall consider the adequacy or inadequacy of the approved NCCP PlanMCP and Implementing Agreement in protecting CSS Species under 16 U.S.C. 1533(a)(1). 4.10 Identification of Unforeseen Circumstances. In order to establish Unforeseen Circumstances, as defined in section 2.20, USFWS or CDFG shall make a formal written determination that Unforeseen Circumstances have occurred, setting forth the basis for the determination. Upon making such a determination, USFWS or CDFG shall notify the Parties to this Agreement regarding the basis for any determination of Unforeseen Circumstances. 5.0 MISCELLANEQUS PROVISIONS. 5.1 Reservation of Rights. Nothing in this Agreement shall be construed as a waiver of any rights or objections that any of the Parties may have with respect to the Proposed Listing of any Target Species, or of any objections to the regulation of activities by CDFG which do not result in take of any species listed pursuant to the CESA as a- candidate, threatened or endangered species as the term "take" is defined in California Fish and Game Code section 86. Landowner, Local Governments, and TCA reserve their right to oppose any formal listing or Proposed Listing of any Target Species pursuant to the ESA or CESA. USFWS and CDFG reserve the right to proceed with the listing of any Target Species as an endangered species or threatened species and to carry out all of their responsibilities and duties under the ESA and CESA. -18- NCCP Agreement June 17, 1993 931680OL DOI LI 5.2 Notices. Any notices required or permitted to be given under this Agreement shall be in writing and may be given by personal delivery, facsimile or by United States Postal Service first class mail, and shall be deemed sufficiently given if addressed to the following addresses for the respective Parties: Mr. Michael A. Mantell The Resources Agency 1416 Ninth Street, Suite 1311 Sacramento, California 95814 Mr. Larry Eng California Department of Fish and Game 1416 Ninth Street Sacramento, California 95814 Mr. Gail C. Kobetich U.S. Fish and Wildlife Service Office of Endangered Species 2800 Cottage Way, Room E-1823 Sacramento, California 95825 Mr. Thomas Matthews County. of Orange Environmental Management Agency 12 Civic Center Plaza, Room 236 Santa Ana, California 92702 Mr. Steve Letterly Transportation Corridor Agencies 345 Clinton Street Costa Mesa, California 92626 Mr. Richard Broming Santa Margarita Company 30211 Avenida de las Band'eras Rancho Santa Margarita, California 92688 -19- NCCP Agreement June 17, 1993 93168001.001 F Mr. Glen Allen Arvida Company 26471 Crown Valley Parkway, Suite 130 Mission Viejo, California 92691 Mr. Chris Taylor Coto de Caza One Coto de Caza Drive Coto de Caza, California 92679-3602 41 5.3 Headings The subject headings of the sections of this Agreement are provided for convenience only and shall not effect the construction or interpretation of any of the provisions of the Agreement. 5.4 Entire Agreement. This Agreement constitutes the full and complete agreement of the Parties and supersedes any and all prior or contemporaneous written or oral negotiations, correspondence, understandings and agreements between the Parties respecting the subject matter hereof. Any supplement, modification or amendment to this Agreement shall be executed in writing by all Parties. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provisions. No waiver shall be binding unless executed in writing by the Party making the waiver. 5.5 Assignment. This Agreement is intended to apply to the Parties and their respective successors and assigns. 5.6 Counterparts. This Agreement may be executed in multiple counterparts and each such executed counterpart shall be deemed an original, all of which together shall constitute a single executed Agreement. -20- NCCP Agreement June 17, 1993 9316BOOL-OCI 0 U IN WITNESS WHEREOF, the Parties have executed this Memorandum of Agreement effective as of the last date set forth below. Dated t , 1993 Dated11993 Dated: �&wd-1R 1993 Dated: , 1993 NCCP Agreemetu April 22, 1993 9308SOor-oCI CALIFORNIA RESOURCES AGENCY, an agency of the State of California B ' k kLal�-� y Title CALIFORNIA DEPARTMENT OF FISH AND GAME, a deporb:pent of The Resources Agency of the State of CgOiforihia UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the Department of Interior of the United States of America COUNTY OF ORANGE, a political subdivision of the State of California -1� A k - BY Tide Dir tar of P1 ning, EM -21- Dated: 1993 FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY, a joint powers authority Title Chief Executive Officer Dated: April 28 , 1993 SANTA MARGARITA COMPANY By Title vice Presiden , Plannin and itlement Dated: 1993 ARVIDA/JMB PARTNERS, a Florida general partnership /l( /j By: Arvida/JMB Partners, L.P.-II a Delaware limited partnership, its general partner By: Arvida/JMB Managers, Inc., a Delaware corporation, its general partner By 4aA 4A thorized Representative Dated: A PR.,L ';0 . 1993 COTO DE CAZA• a California limited partnership, By: Chevron Land and Development Company, a Delaware Corporation, General Partner Title Assistant secretary -22- NCCP Agreement April 22, 1993 930850ar.001 0 • . Dated: 1993 By_ Title Dated: , 1993 Dated: , 1993 Title By Title -23- NCCP Agreement April 22, 1993 93oeswroci 0 £j ]Av4�vIf6 uwmem .1961 1776 May 9, 1994 Mr. Timothy S. Neeley Administrator/Planning and Zoning County of Orange, EMA P. O. Box 4048 Santa Ana, California 92702-4048 Re: Natural Communities Conservation Program Dear Mr. Neeley: MEMBERS OF THE CITY COUNCIL COLLENE CAMPBELL GARY L. HAUSOORFER GILJONES CAROLYN NASH JEFFVASOUEZ CITY MANAGER GEORGESCARBOROUGH At their meeting of May 3, 1994, the City Council of the City of San Juan Capistrano considered participation in the Planning Phase of the Natural Communities Conservation Program for Coastal Sage Scrub Communities. The City Council expressed a desire for more information on the program that related to the environmentalists point of view, and subsequently took action to continue the item to the meeting of May 17, 1994. A copy of the agenda and staff report will be forwarded to you prior to the May 17th meeting. Thank you for your assistance in this matter. Very truly yours, Cheryl Johnson City Clerk 32400 PASEO ADELANTO, SAN JUAN CAPISTRANO, CALIFORNIA 92675 0 (714) 493.1171 AYES: Council Members Jones, Nash, Vasquez and Mayor Campbell NOES: None ABSENT: Council Member Hausdorfer 1. APPROVAL OF CITY COUNCIL MINUTES OF APRIL 5. 1994 The Minutes of the Regular Meeting of April 5, 1994, were approved as submitted. Council Member Vasquez abstained due to his absence from the April 5, 1994, meeting. 2. APPROVAL OF COMMUNITY REDEVELOPMENT AGENCY MINUTES OF APRIL 5. 1994 The Minutes of the Regular Meeting of April 5, 1994, were approved as submitted. Council Member Vasquez abstained due to his absence from the April 5, 1994, meeting. 3. RECEIVE AND FILE WARRANTS OF APRIL, 1994 (300.30) The List of Demands dated April 5, 1994, in the total amount of $30,093.39, and the List of Demands dated April 13, 1994, in the total amount of $1,030,932.06, were received and filed. 4. APPROVAL OF FINAL MAP AND SUBDIVISION AGREEMENT PARCEL MAP 92-253 (HARBIN) (600.30) As set forth in the Report dated May 3, 1994, from the Director of Engineering and Building, Final Map 92-253 was approved based on the finding that the Map was in conformance with the Subdivision Map act, the conditions set forth by Resolution No. 93-9-21-2, and with the April 19, 1994, City Council approval to defer the Parks and Recreation fees until the issuance of building permits. The City Engineer and City Clerk were authorized to execute the Final Map. The Mayor and City Clerk were authorized to execute the Subdivision Agreement. The City Clerk was directed to forward both documents to the Orange County Recorder. PUBLIC HEARINGS - None RECESS AND RECONVENE Council recessed at 8:40 p.m. to convene the San Juan Capistrano Community Redevelopment Agency, and reconvened at 8:41 p.m. ADMINISTRATWE ITEMS DIRECTOR OF PLANNING SERVICES 1. APPROVAL OF PARTICIPATION IN PLANNING PHASE OF THE NATURAL COMMUNITIES CONSERVATION PROGRAM FOR COASTAL SAGE SCRUB CO S 600.50 Written Communications: Report dated May 3, 1994, from the Director of Planning, advising that the County had requested the City's participation in the planning phase of the Natural Communities Conservation Program. The Natural Communities Conservation Planning Program was established by California law under the Natural Communities Conservation Planning Act of 1991 (Assembly Bill 2172) as an alternative to the State Endangered Species Act single species protection program. The purpose of the State-wide Natural Community Conservation Planning Program is to provide for regional natural community habitat-based protection and perpetuation of natural City Council Minutes -3- 5/3/94 L 0 AGENDA ITEM May 3, 1994 TO: George Scarborough, City Manager FROM: Thomas Tomlinson, Planning Director SUBJECT: Consideration of Participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). RECOMMENDATION By resolution: Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program" (Attachment 1, Exhibit A). SITUATION A. Representative Timothy S. Neeley Administrator/Planning and Zoning County of Orange, Environmental Management Agency Po Box 4048 Santa Ana, California 92702-4048 B. Summary and Recommendation The County of Orange has asked the City to participate in the planning phase of the Natural Communities Conservation Program (NCCP)(see Attachment 2). The Program, conceived in 1991, will serve as a pilot project for similar environmental resource management issues throughout the nation. Primary participants include the following agencies as well as cities and major landowners in the County: o The California Resources Agency. o The California Department of Fish and Game. o The United States Fish and Wildlife Service. o The County of Orange. FOR CRY COUNCIL AGE1 G16L, City Council Agenda Item -2- May 3 1994 Participation in the planning phase would be initiated by execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program". A copy of that agreement is provided as Attachment 1, Exhibit A. Staff recommends that the City Council adopt the attached resolution approving participation in the planning phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program. C. Background The groundwork for the Natural Communities Conservation Program (NCCP) was begun in 1991 in response to the Department of Interiors consideration of listing the "California black - tailed gnatcatcher" as a "threatened" or "endangered species. Such action would have extended protection to all areas of "coastal sage scrub" biotic communities in Southern California. Removal or destruction of such areas would have been classified as "takes" and subject to restrictions prescribed by Federal law. Destruction without Federal permits would be a violation of Federal law and subject to severe penalties. The NCCP Program was developed as an alternative to the provisions of the Federal Endangered Species Act (ESA). The NCCP departs from the relatively inflexible "species" approach of the Endangered Species Act (ESA) and involves a new and rather innovative approach to environmental resources management. The program represents a large-scale, comprehensive approach to resource management which seeks to identify and preserve critical natural habitats which support "threatened" or "endangered" species. The habitat preservation approach, based on current scientific knowledge, appears to be potentially more successful than the individual species approach. Furthermore, the Program would result in a greater level of certainty for the development community as to the expectations of those State and Federal agencies responsible for environmental resource protection. The Program has been recently amended to include two phases with two separate agreements. The first phase involves the NCCP planning process including data collection, analysis, mapping, plan preparation, and environmental documentation (EIRJEIS). The second phase will consist of the NCCP Implementation Process in which individual agencies and landowners would consider specific commitments to implement the recommendations and policies of the adopted Plan. The implementation phase would begin following completion and adoption of the NCCP Plan for Coastal Sage Scrub, Southern Orange County Subregion, probably sometime in late 1994 or early 1995. 0 0 City Council Agenda Item -3- May 3 1994 D. Issues Staff have identified the following issues with respect to this project: Would participation in the NCCP planning phase be consistent with the policies and recommendations of the General Plan? 2. Which undeveloped areas of the City include "coastal sage scrub" (CSS) habitat and how would they be affected by the NCCP planning effort? How would the City benefit, directly or indirectly, from participation in the NCCP planning effort? 4. What resources, if any, would the City need to commit in the event it decided to participate in the NCCP planning effort? E. Staff Analysis Would participation in the NCCP planning phase be consistent with the policies and recommendations of the General Plan? The City's Open Space and Conservation Element contains various policies which support actions to preserve natural habitat. While the City's policy focus has been open space preservation, natural habitats constitute an important component of open spaces. The General Plan Policies Plan establishes the following goal: "The City of San Juan Capistrano should give highest priority to acquiring or otherwise preserving large amounts of the present open space within the City. Such open space is defined as large acreage agricultural land or raw undeveloped land, including present park sites. The development of a step-by-step strategy for ensuring the greatest possible amount of open space within San Juan Capistrano is essential to preserving the present character of the City. (OS)" (General Plan Policies Plan, page 2). The General Plan goal clearly establishes open space preservation an important aspect of the City's land planning efforts. More specifically, the Policies Plan establishes the following policy regarding open space preservation: "To achieve the minimum open space goal of 25% of total City area, the City should implement the Open Space Plan which specifies those areas that should be retained as open space. Within the context of establishing permanent open space, the community should select open space not only for its visual quality but also for the preservation 0 0 City Council Agenda Item -4- May 3, 1994 and conservation of various natural resources, for outdoor recreation, for preservation of historical and cultural assets and for the protection of public health and safety (OS) (G)" (General Plan Policies Plan, page 2) Clearly, the City's General Plan views open space as comprising various important elements including agriculture, recreation, scenic resources, and natural resource conservation. The NCCP program represents a natural resources conservation effort incorporating an inter jurisdictional approach and regional scale. Based on the provisions of the General Plan, staff concludes the participation would be consistent with the General Plan. 2. Which undeveloped areas of the City include "coastal sage scrub" (CSS) habitat and how would they be affected by the NCCP planning effort? The County has undertaken a major mapping effort through its geographic information systems (GIS) program to accurately map the location of all potential coastal sage scrub. Mapping is not based solely on recent satellite imagery which would provide an accurate "picture" of coastal sage in the region. The present mapping represents a combination of resources including aerial photographs, field surveys conducted as part of development review, habitat conservation programs, and other sources. The County is in the process of field checking the accuracy of their present mapping effort. The County has provided a copy of preliminary mapping completed for the NCCP program which is not reproducible but available for review. In general terms, the County's mapping has identified actual or potential coastal sage scrub habitat in parts of the following areas: o Colinas Ridge open space lands along the northwest boundary of the City. o Hillside areas to the north and south of Highland Drive. o Hillsides areas bordering the Malaspina Drive area. o Portions of Marbella Crest and open space areas in Hunt Club II. o Along a segment of San Juan Creek east of La Novia. o Portions of Pacific Point and San Juan Meadows. o Much of the Concorde site. o City open space lands acquired as part of the Glendale Federal development. The planning effort would involve more detailed study to verify the presence and extent of coastal sage scrub. If present, those areas would be evaluated based on their size, quality (diversity), and connection/proximity to other habitat areas. In summary, the planning effort will involve further evaluation of the areas noted above. Participation would give the City the opportunity to review and debate the inclusion or exclusion of habitat areas within the NCCP Program. LI 0 City Council Agenda Item -5- May 3, 1994 How would the City benefit. directly or indirectly, from participation in the NCCP planningeffort? ffort? There are several potential benefits to the City from participation in the NCCP. First, participation in the planning phase makes lands within the City subject to the 4(d) rule of the Federal Endangered Species Act (FESA). Without participation, the City could not allow the development of nor develop any areas designated as coastal sage scrub. The 4(d) rule would allow a take of up to 5% of coastal sage scrub habitat. Any City plans to lease open space areas for agriculturelgrazing or develop recreation uses on such areas would be possible under the 4(d) rule, but possibly precluded without participation. Second, participation in the planning effort allows the City to have direct involvement in decisions regarding which areas will be included in the coastal sage scrub habitat. Without such involvement, the City would relinquish potentially important decision- making influence and have would have the conclusions of the planning effort imposed on it. Also, several areas of actual or potential coastal sage scrub occur on projects which have received previous development approval, but have not been developed. Participation would preclude the City from possible exposure to arguments that they have not exercised efforts to protect landowner's development interests. At the same time, City participation is not dependent on individual landowner participation and vice -versa. 4. What resources, if any, would the City need to commit in the event it decided to participate in the NCCP planningeffort? ffort? Participation in the planning effort would be limited to staff resources (time, materials, and travel). Based on staffs current understanding of the planning process, participation would require limited involvement. Staff resources are discussed in more detail under financial considerations. F. Community Redevelopment ABencv Participation in the NCCP program would not effect properties situated within the CRA limits. G. Leal Considerations On January 12, 1994, the City Attorney was requested to review the planning agreement and advise of any legal implications or considerations. By memorandum dated April 18, 1994, the City Attorney has indicated he has "no comments at this time" (see Attachment 3). 0 9 City Council Agenda Item -6- May 3 1994 COMMISSIONSIBOARD REVIEW AND RECOMMENDATIONS This project has not been subject to review by the City's advisory Boards and Commissions. FINANCIAL CONSIDERATIONS Participation in the planning phase of the Natural Communities Conservation Program (NCCP) would not result in any direct financial impact on the City. However, staff time to review documents and mapping, prepare reports and correspondence, and attend meetings would require an estimated 120 to 140 person hours (about 6% FTE). A decision to participate in the NCCP Program would result in the opportunity cost of those hours not being devoted to other aspects of the Planning Department's work program. NOTIFICATION None required. ALTERNATE ACTIONS Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). 2. Deny participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS). 3. Continue consideration and request additional information from staff. RECOMMENDATION By resolution: Approve participation in the Planning Phase of the Natural Communities Conservation Program (NCCP) for Coastal Sage Scrub Communities (CSS) through execution of the "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program" (Attachment 1). Respectfully submitted, Thomas Tomlinson Planning Director • n 6- A 4.7 Future Permits. This section describes the intent of the Parties with respect to the effect of an approved NCCP Plan/HCP and Implementing Agreement on future permits described in sections 4.7.1 and 4.7.2. These commitments will be made as part of the Implementing Agreement 4.7.1 Except where CDFG or USFWS has determined the existence of Unforeseen Circumstances consistent with the provisions of section 2.20 and 4.10, CDFG or USFWS shall not prescribe, or request of any other agency, any further mitigation, enhancement, or compensation measures pursuant to the ESA or CESA, or other certain statutes specifically addressed and provided for in the NCCP Plan/HCP with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. It is not the intent of this section to limit informal discussion or recommendations between the Parties with regard to the implementation of the NCCP Plan/HCP. It is the intent of this section to assure that recommendations by USFWS and CDFG, in the context of public agency consideration of Planned Activities, conform to the mitigation, enhancement and compensation measures identified in an approved NCCP Plan/HCP and Implementing Agreement. 4.7.2 The Parties to this Agreement acknowledge that the Local Governments and the Landowner may also be subject to permit requirements. of agencies not parties to this Agreement, and to the permit requirements of Fish and Game Code sections 1601 and 1603. In the absence of Unforeseen Circumstances, participation in the NCCP Plan/HCP shall constitute the full extent of the Mitigation Measures required by USFWS pursuant to the ESA and CDFG pursuant to the CESA, and pursuant to other certain statutes specifically addressed and provided for in the NCCP Plan/HCP for the take of Target Species, or the modification of the habitat of the Target Species, related to the Planned Activities within the Southern Orange County Subregion. In addition, in the event that the NCCP Plan/HCP and Implementing Agreement include commitments by the Local Governments and the Landowner to provide for the conservation or protection of biological resources other than the Target Species and their Habitat (e.g., wetland and riparian areas) the NCCP Plan/HCP and Implementing Agreement may include provisions for the Local Governments or Landowner to receive appropriate mitigation credit for the particular biological resources addressed in the NCCP Plan/HCP to offset any mitigation requirements that may be imposed by the CDFG or other agencies to provide for the conservation or protection of such other biological resources pursuant to any applicable law. 4.8 Future Environmental Documentation. In issuing any permits or other approvals for any Target Species that is listed as an endangered species or threatened species under the ESA or CESA, or listed as a CESA Candidate Species pursuant to the CESA with regard to Planned Activities, absent Unforeseen Circumstances, and subject to any requirements of CEQA or NEPA (including 40 C.F.R. § 1502.9(c)), USFWS and CDFG shall rely on and shall utilize the EIR/EIS -17- NCCP Agreement June 17, 1993 931680OLOC1 prepared in conjunction with the NCCP Plan/HCP as the CEQA and NEPA environmental document for such permits and approvals. The Local Governments shall rely on and shall utilize the EIR prepared in conjunction with the NCCP Plan/HCP in evaluating future planning decisions, and in issuing any permits or other approvals within the Southern Orange County Subregion with regard to the Planned Activities. The Parties understand and intend that the EIRIEIS prepared in conjunction with the NCCP Plan/HCP will operate as a `program" EIR and EIS pursuant to applicable provisions of the Council on Environmental Quality NEPA regulations (40 C.F.R. § 1500 et seg.), the CEQA Guidelines (14 C.C.R. § 15000 et sem.) and the NCCP Act. Subsequent activities will be examined in light of the program EIR/EIS to determine if additional environmental documentation is required. 4.9 CSS Species. The NCCP Planning Guidelines indicate and the Parties agree that an NCCP Plan/HCP which provides effective conservation measures for the Target Species should provide significant conservation for other CSS Species. USFWS and CDFG agree that they will consider the NCCP Plan/HCP in any future listing determinations with respect to CSS Species identified in the NCCP Plan/HCP, and, in particular, shall consider the adequacy or inadequacy of the approved NCCP Plan/HCP and Implementing Agreement in protecting CSS Species under 16 U.S.C. 1533(a)(1). 4.10 Identification of Unforeseen Circumstances. In order to establish Unforeseen Circumstances, as defined in section 2.20, USFWS or CDFG shall make a formal written determination that Unforeseen Circumstances have occurred, setting forth the basis for the determination. Upon making such a determination, USFWS or CDFG shall notify the Parties to this Agreement regarding the basis for any determination of Unforeseen Circumstances. 5.0 MISCELLANEOUS PROVISIONS. 5.1 Reservation of Rights. Nothing in this Agreement shall be construed as a waiver of any rights or objections that any of the Parties may have with respect to the Proposed Listing of any Target Species, or of any objections to the regulation of activities by CDFG which do not result in take of any species listed pursuant to the CESA as a, candidate, threatened or endangered species as the term "take" is defined in California Fish and Game Code section 86. Landowner, Local Governments, and TCA reserve their right to oppose any formal listing or Proposed Listing of any Target Species pursuant to the ESA or CESA. USFWS and CDFG reserve the right to proceed with the listing of any Target Species as an endangered species or threatened species and to carry out all of their responsibilities and duties under the ESA and CESA. -18- NCCP Agreement June 17, 1993 9316800E-007 •1 ! 5.2 Notices. Any notices required or permitted to be given under this Agreement shall be in writing and may be given by personal delivery, facsimile or by United States Postal Service first class mail, and shall be deemed sufficiently given if addressed to the following addresses for the respective Parties: Mr. Michael A. Mantell The Resources Agency 1416 Ninth Street, Suite 1311 - Sacramento, California 95814 Mr. Larry Eng California Department of Fish and Game 1416 Ninth Street Sacramento, California 95814 Mr. Gail C. Kobetich U.S. Fish and Wildlife Service Office of Endangered Species 2800 Cottage Way, Room E-1823 Sacramento, California 95825 Mr. Thomas Matthews County of Orange Environmental Management Agency 12 Civic Center Plaza, Room 236 Santa Ana, California 92702 Mr. Steve Letterly Transportation Corridor Agencies 345 Clinton Street Costa Mesa, California 92626 Mr. Richard Broming Santa Margarita Company 30211 Avenida de las Bandbras Rancho Santa Margarita, California 92688 -19- NCCP Agreement June 17, 1993 9316800L.00 1 G Mr. Glen Allen Arvida Company 26471 Crown Valley Parkway, Suite 130 Mission Viejo, California 92691 Mr. Chris Taylor Coto de Caza One Coto de Caza Drive Coto de Caza, California 92679-3602 0 5.3 Headings. The subject headings of the sections of this Agreement are provided for convenience only and shall not effect the construction or interpretation of any of the provisions of the Agreement. 5.4 Entire Agreement. This Agreement constitutes the full and complete agreement of the Parties and supersedes any and all prior or contemporaneous written or oral negotiations, correspondence, understandings and agreements between the Parties respecting the subject matter hereof. Any supplement, modification or amendment to this Agreement shall be executed in writing by all Parties. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provisions. No waiver shall be binding unless executed in writing by the Party making the waiver. 5.5 Assignment. This Agreement is intended to apply to the Parties and their respective successors and assigns. 5.6 Counterparts. This Agreement may be executed in multiple counterparts and each such executed counterpart shah be deemed an original, all of which together shall constitute a single executed Agreement. -20- NCCP Agreement June 17,1993 9316600L.001 •1 • IN WITNESS WHEREOF, the Parties have executed this Memorandum of Agreement effective as of the last date set forth below. Dated t , 1993 CALIFORNIA RESOURCES AGENCY, an agency of the State of California By Title Dated. u"—✓ 1993 CALIFORNIA DEPARTMENT OF FISH AND GAME, a depent of The Resources Agency of the State of C ifo i/s Rv `✓ �.✓ Dated:&Ar/-.3 1993 UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the Department of Interior of the United States of America Dated: 1993 NCCP Agreement April 22,19W 9"500T.00 I COUNTY OF ORANGE, a political subdivision of the State of California -21- Dated: _4%!1993 Dated: April 28 1993 Dated: 1993 /k{� /3 L] FOOTHILUEASTERN TRANSPORTATION CORRIDOR AGENCY, a joint powers authority Title Chief Executive Officer SANTA MARGARITA COMPANY ARVIDA/JMB PARTNERS, a Florida general partnership By: Arvida/JMB Partners, L.P.-II a Delaware limited partnership, its general partner By: Arvida/JMB Managers, Inc., a Delaware corporation, its general partner By �. S'`3 it A thorized Representative Dated: A Ppv, 30 , 1993 COTO DE CA7.A, a California limited partnership, By: Chevron Land and Development Company, a Delaware Corporation, General Partner By w R Title Assistant Secretary -22- NCCP Agreement April 22, 1993 930880OT.00i Dated: 1993 Dated: 1993 Dated: 1993 Tide Title Title -23- NCCP Agreement April 22, 1993 93085007.001 • ! 80 I7w, ,2 3A I .1v 4NTY O F MICHAEL M. RUANE DIRECTOR, EMA 77- THOMAS B. MATHEWS 5 3 RA N C� E DIRECTOR OF PLANNING LOCATION ENVIRONMENTAL MANAGEMENT AGENCY 12 CIVIC CENTER PLAZA ,p ANNING SANTA ANA, CA Ute 10 1992 MAILING ADDRESS: P.O. BOX 4048 Thomas Tomlinson, Director SANTA ANA, CA 92702-4048 of Planning TELEPHONE: City of San Juan Capistrano (714)834-4643 32400 Paseo Adelanto FAX k:DPC834-4772 San Juan Capistrano, CA 92675 2nd Fir. 834-6132 Subject: Workshop re: Natural Communities Conservation Planning (NCCP) Program / Memorandum of Agreement (MOA) Dear Mr. Tomlinson: You are invited to attend a workshop regarding the NCCP program. The workshop will be held on Tuesday, December 22, 1992 from 10:00am to 12:00pm in Conference Room A on the 5th Floor of the Orange County Hall of Administration (See Workshop location map). The purpose of this workshop is to 1) provide an update on the progress of the NCCP program, 2) present and discuss of the proposed draft MOA for the preparation of individual subregional NCCP plans within the incorporated and unincorporated areas of Orange County, and 3) solicit your city's participation in the NCCP program as a signatory to the MOA. The MOA is a planning agreement which is intended to establish the guidelines and procedures that will be followed by the California Department of Fish and Game, U.S. Fish and Wildlife Service, County of Orange, Transportation Corridor Agency (TCA), and participating cities in the preparation of each subregional plan within the county. The MOA represents one of the many necessary steps in the process of development of the NCCP program which was established by California law under the Natural Communities Conservation Planning Act of 1991 (AB2172) as an alternative to the State Endangered Species Act single species protection program. The purpose of the statewide NCCP program is to provide for regional natural community habitat -based protection and perpetuation of natural wildlife diversity while allowing compatible and appropriate development growth. Your participation in the NCCP program will be greatly appreciated. In addition, we have included for your information a letter identifying the present scope of significant Orange County open space lands including regional parks, open space and recreational trail systems, state parks, forest lands and city open space areas. The letter also discusses the County's cooperative ATTACHMENT 2 0 efforts with state parks, U.S. Forest Service, major landowners and local jurisdictions regarding data collection that will provide the basis for the development of the subregional NCCPs. Should you have any questions, please contact Tim Neely at 834-5550 or Gary Medeiros at 834-2448. V e ytruly yours, ��� Thomas Mathews, Drecto of Planning GM/TN:gm Attachment: Letter to Carol Whiteside re Orange County Open Space cc: Carol Whiteside, Assistant Secretary, The Resources Agency Larry Eng, Ph.D, The Resources Agency/Department of Fish and Game Gail Kobetich, USFWS, NCCP/HCP Coordinator Michael M. Ruane, Director, EMA Tim Neely, Manager, EMA-Environmental Planning Division Gary Medeiros, Chief, EMA-EPD/Resources-Flood-Parks Section Sat Tamarabuchi, TIC Monica Florian, TIC Richard Broming, RMV Chuck Colton, Arvida Chris Taylor, Coto de Caza Steve Letterly, TCA Laura Coley Eisenberg, TCA Adam Relin, Nossaman, Guthner, Knox S Elliott MEMORANDUM April 18, 1994 TO: TOMTomlinsm Planning Director FROM: Richard Denhalter, City Attorney &4 SUBJECT: Memorandum of Agreement Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) In response to your memorandum da ed April 13 94, I have reviewed the Memorandum of Agreement for the NCCP program an no comments at this time. I would recommend, however, that the City Manager review the Memorandum of Agreement be ore going forward with any commitments. cc: George Scarborough, City Manager Dick Bobertz, Land Use Manager William Ramsey, Senior Planner ATTACHMENT 3 3.3.3 The NCCP Plan/HCP shall be prepared in a manner consistent with the provisions of the Process Guidelines. Consistent with the habitat conservation planning requirements for listed species contained in section 10(a)(2)(A) of the ESA, 50 C.F.R. § 17.22(b) and 50 C.F.R. § 17.32(b) the Draft NCCP Plan/HCP shall specify the habitat requirements for the Target Species, the impacts likely to result from the proposed taking of one or more Target Species, the measures that will be undertaken to monitor, minimize and mitigate for such impacts, the funding that will be made available to undertake such measures, the procedures to address Unforeseen Circumstances, identification of funding mechanisms and other assurances that the NCCP Plan/HCP will be carried out; and additional measures that the CDFG or USFWS may require as necessary or appropriate. The Draft NCCP Plan/HCP shall include provisions governing the amendment of the NCCP Plan/HCP. 3.3.4 The County shall act as Lead Agency for the development of the NCCP Plan/HCP and for preparation of environmental documentation pursuant to CEQA. The Parties acknowledge that the County is appropriately the Lead Agency for preparation of the NCCP Plan/EIR because of the need for county -wide planning and coordination, and because the County will have the greatest responsibility for supervising the NCCP Plan. CDFG shall act as a Responsible Agency as well as a Trustee Agency under CEQA. Local Governments other than the County shall be Responsible Agencies under CEQA, and shall be consulted in the preparation of the NCCP Plan/EIR, and at a minimum, shall have the opportunities for comment described in section 3.4. 3.3.5 USFWS shall be responsible for compliance with NEPA in connection with the NCCP Plan/HCP. The County shall act as the local co -lead agency for compliance with NEPA pursuant to 40 C.F.R. section 1506.2(c). To the maximum extent practicable, USFWS will coordinate its obligations under NEPA with corresponding state and local obligations under CEQA and the NCCP Act. Coordination is expected to include the following: a. completion of a joint EIRADS; b. joint conduct of 'scoping' meetings, public hearings and participation in other joint NEPA/CEQA activities; C. the joint EIR/EIS shall be prepared and funded in conjunction with the NCCP Plan/HCP. 3.3.6 Pursuant to Fish and Game Code section 2840, CDFG shall be compensated for costs incurred in participating in the planning process and reviewing the NCCP Plan. The terms of CDFG compensation shall be set forth in a separate compensation agreement. -10- NCCP Agreement June 17, 1993 0168O0L.Oc1 3.3.7 A schedule for preparation and distribution for review of the NCCP Plan/HCP and associated environmental documentation, consistent with this Agreement, shall be prepared by the Parties ("NCCP Schedule"). The Parties agree to use their best efforts to comply with the NCCP Schedule. The Parties acknowledge that regular discussions will be convened with conservation representatives in addition to the mandated public involvement procedures required by CEQA and NEPA to solicit their views on the plans and participation in the process. Discussions required by this section are intended to occur concurrent with ongoing review/consultation among Parties to this Agreement. 3.4 Review and Approval of the NCCP Plan/HCP and Environmental Documentation. 3.4.1 The Preliminary Draft NCCP Plan/HCP and associated preliminary draft environmental documentation shall be prepared by a consultant selected by the Parties, consistent with CEQA and NEPA (40 C.F.R. § 1506.5) requirements. The Parties acknowledge that the Landowner will have a primary role in preparing the NCCP Plan/HCP. The County and USFWS, as co -lead agencies, shall independently review, analyze and supervise the preparation of the CEQA and NEPA documentation before circulating the Plan and environmental document for public review. It is the intent of sections 3.3.7, 3.4.1, 3.4.2, 3.4.3 and 3.4.4 to establish an efficient ongoing process of consultation and coordination between the County, the Landowner, the CDFG and USFWS, and conservation representatives with regard to the preparation of the NCCP Plan/HCP and associated environmental documentation. 3.4.2 The consultant shall submit an outline for a Draft NCCP Plan/HCP to USFWS and the County for review and comments prior to initiation of the CEQA and NEPA public review processes. As soon as possible after submission of such outline, the County and USFWS shall complete review of the outline and determine whether it is sufficiently detailed to justify commencement of the "scoping' phase of the environmental review process pursuant to NEPA and CEQA. For the purposes of this section and section 3.4.3, the outline will be "sufficiently detailed to justify commencement of the scoping phase" if the outline is adequate to serve as the project description for a Notice of Intent pursuant to 40 C.F.R. § 1508.22 and a Notice of Preparation pursuant to 14 C.C.R. § 15082. If the USFWS concludes that the outline is sufficiently detailed to justify commencement of the 'scoping" phase of the environmental review process, then USFWS shall so advise the County in writing and the County, in cooperation with USFWS, will initiate the joint scoping phase of the environmental review process. USFWS shall publish a Notice of Intent, in accordance with the Department of the Interior NEPA regulations, as soon as possible after advising the County that the outline is complete. The County shall circulate the Notice of Preparation pursuant to 14 C.C.R. § 15082. -11- NCCP Agreement June 17. 1993 931680OLOCI r - • 3.4.3 If USFWS determines that the outline for a Draft NCCP Plan/HCP is not sufficiently complete under the ESA to justify commencement of the 'scoping' phase of the environmental review process, USFWS shall provide the consultant with written comments and recommendations for changes necessary or appropriate under the ESA. The consultant will revise the outline consistent with USFWS comments, and, if requested by USFWS, submit a revised outline to USFWS. If a revised outline is submitted to USFWS, the Parties shall repeat the process described in sections 3.4.2 and 3.4.3 until USFWS determines that the outline is sufficiently detailed to justify commencement of the "scoping" phase. Any comments on a revised outline shall address the provisions of the revised outline regarding issues identified in the initial USFWS comments. USFWS shall use their best efforts to raise all significant issues to be considered in the NCCP Plan/HCP during the process in order to ensure that such issues can be efficiently addressed in the preparation of the Draft NCCP Plan/HCP. Nothing in section 3.4.2 or 3.4.3, however, is intended to limit comments by the USFWS and CDFG on the NCCP Plan/HCP during the public review process. 3.4.4 The selected consultant shall develop a Preliminary Draft NCCP Plan/HCP and EIR/EIS ("Preliminary Draft7). The Preliminary Draft shall be circulated to all Parties for review. Comments on the Preliminary Draft shall be submitted to the consultant as soon as possible after the circulation of the Preliminary Draft. The Parties should focus comments on aspects of the Preliminary Draft affecting their property or jurisdiction. The County, as CEQA Lead Agency, has the responsibility to independently review and approve the Preliminary Draft NCCP Plan and has -the sole authority to determine the form and content of the Draft and Final NCCP Plan and EIR. 3.4.5 As soon as possible after review of the Preliminary Draft, USFWS shall determine whether the document satisfies applicable NEPA requirements for circulation to the public as a Draft EIS. USFWS, as NEPA Lead Agency, has the responsibility to independently review and approve the EIS, and has sole authority for the content and scope of the EIS. If USFWS concludes that the Preliminary Draft is sufficiently complete to justify release pursuant to NEPA, then USFWS shall so advise the County in writing. USFWS shall publish notice of the availability of the Draft NCCP Plan/HCP/EIR/EIS in the Federal Register as soon as possible after of advising the County that the Preliminary Draft is complete. Following receipt of USFWS approval, and publication in the Federal Register, the County and USFWS will circulate a Draft NCCP Plan/HCP/EIR/EIS for a public review period of sixty (60) days, pursuant to CEQA and NEPA. 3.4.6 If USFWS determines that the Preliminary Draft is not sufficiently complete to justify circulation as a Draft EIS, USFWS shall provide the consultant with changes necessary or appropriate under NEPA. The consultant, in -12- NCCP Agreement June 17, 1993 9316800LOG1 consultation with the Parties, shall revise the Preliminary Draft, and if requested by USFWS, submit a revised Preliminary Draft to USFWS for review pursuant to NEPA. If a revised Preliminary Draft is submitted to USFWS, the Parties shall repeat the process described in sections 3.4.5 and 3.4.6 until USFWS determines that the document meets NEPA requirements for circulation as a Draft EIS. Any comments on a revised Preliminary Draft shall address the provisions of the revised Preliminary Draft regarding issues identified in the initial USFWS comments. The USFWS shall use its best efforts to insure that the period for review and approval of the Preliminary Draft does not exceed ninety (90) days from the submission of the initial Preliminary Draft to the USFWS. 3.4.7 Following the close of the public comment period pursuant to CEQA and NEPA, responses to public comments shall be prepared. As expeditiously as possible thereafter, the County shall finalize the EIR and adopt the NCCP Plan. 3.4.8 As expeditiously as possible after the preparation of responses to public comments, the USFWS shall publish a Notice of Availability of the Final EIS in the Federal Register. USFWS shall prepare a draft Record of Decision ("ROD") pursuant to 40 C.F.R. 1505.2, and draft biological opi6ion ("BO") and shall submit the draft BO to the County for review and comment. The USFWS shall. make a decision on the proposed action, and shall issue the Record of Decision as soon as practicable after the expiration of the thirty day waiting period following publication of the Notice of Availability in the Federal Register. 3.4.9 The Parties acknowledge that the EIR and EIS may be completed separately due to the various requirements of CEQA and NEPA. The County, as the CEQA Lead Agency, has the sole discretion and authority to adopt the NCCP Plan. The USFWS has sole authority to approve the NCCP Plan as an HCP or Advance HCP in accordance with section 10(a) of the ESA and its implementing regulations. 3.4.10 Concurrent with the approval of the NCCP Plan and the Final. EIR and Final EIS, one or more of the Parties may enter into an Implementing Agreement with USFWS and CDFG, consistent with the Process Guidelines, specifying all terms and conditions of activities under the NCCP Plan/HCP and the rights and obligations of the Parties to the Implementing Agreement. The execution of the Implementing Agreement shall constitute the formal approval of the NCCP Plan by the Local Governments other than the County, and CDFG, and the execution of the Implementing Agreement shall constitute the legal commitment by Landowner to the implementation of the NCCP Plan. Issuance of a section 10(a) permit incorporating an NCCP Plan/HCP, including an Implementing Agreement, shall constitute the formal approval by USFWS. If no Target Species has been listed by USFWS as an endangered species or threatened species, execution by USFWS of an Implementing -13- NCCP Agreement June 17, 1993 9316800L.00 1 Agreement shall constitute formal approval of an AHCP. The Implementing Agreement will become effective as to any parry to the Implementing Agreement upon execution by the Landowner, CDFG, the USFWS and the County. The Parties recognize that regular monitoring activities will be included as part of the Implementing Agreement, and appropriate mechanisms to insure funding of the NCCP Plan/HCP will be included as part of the Implementing Agreement. The Implementing Agreement will be signed by those parties necessary to establish an effective HCP or AHCP. 3.4.11 In reviewing and approving the NCCP Plan/HCP, CDFG shall employ the SRP conservation .principles concerning CSS conservation, habitat needs, species distribution and abundance. CDFG shall also review and approve the NCCP Plan in accordance with the purposes and requirements of the CESA, including the provisions of Fish and Game Code section 2081. 3.4.12 In reviewing and approving the NCCP Plan/HCP, USFWS shall apply the provisions of section 10(a) of the ESA, and shall employ, consistent with section 3.2.2, the SRP conservation principles concerning CSS conservation, habitat needs, species distribution and abundance, and other biological considerations, and shall make findings with respect to whether the NCCP Plan/HOP meets the requirements for a habitat conservation plan pursuant to section 10(a) of the ESA. 4.0 EFFECT OF PLAN WITH RESPECT TO SPECIES LISTED OR PROPOSED FOR LISTING. Notwithstanding any other provision in this MOA, this MOA is subject to and shall be carried out in accordance with the ESA, the CESA, or any other applicable federal or state law or regulation. 4.1 Consideration of NCCP Plan in USFWS Decisions. In the absence of Unforeseen Circumstances as defined in section 2.20 and 4.10 of this Agreement, and provided an Implementing Agreement has been executed to implement the NCCP Plan/HCP in the Southern Orange County Subregion, USFWS shall (i) consider the NCCP Plan/HCP in any future determinations by the USFWS with regard to the listing of one or more of the Target Species as an endangered species or threatened species, (ii) consider that the satisfactory implementation of the NCCP Plan/HCP and Implementing Agreement will adequately provide for the conservation and protection of the Target Species and their habitats in the Plan area, and regard that the areas included in the approved NCCP Plan/HCP do not require further special management considerations or protection, and (iii) not prescribe any additional mitigation, enhancement or compensation measures pursuant to the ESA, or other certain statutes specifically addressed and provided for in the NCCP Plan/HCP, with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. -14- NCCP Agreement June 17, 1993 9316BOOLOC1 * 1 • 4.2 Listing of Target Species Before the NCCP Plan Has Been Approved by USFWS. If one or more of the Target Species is listed as an endangered species or threatened species pursuant to the ESA before an NCCP Plan/HCP for the Souther. Orange County Subregion is approved by the USFWS, the Landowner, one or more of the Local Governments or TCA may seek authorization to take such Target Species in the conduct of Planned Activities in accordance with the ESA. A draft NCCP Plan/HGP for the Southern Orange County Subregion may be submitted as a proposed HCP for purposes of Section 10(a) of the ESA. 4.3 ESA Listing of Target Species After the NCCP Plan Has Been Approved by USFWS. In the event that one or more of the Target Species is listed as an endangered species or threatened species pursuant to the ESA after the NCCP Plan/HCP for the Souther Orange County Subregion, including an applicable Implementing Agreement, has been approved by USFWS, the NCCP Plan/HCP shall be adequate documentation to support an application for a Section 10(a) Permit to take .such Target Species incidental to the Planned Activities, in the absence of Unforeseen Circumstances. In such event, any Party may submit an application for a Section 10(a) Permit, and the USFWS shall treat the approved NCCP Plan/HCP and associated Implementing Agreement as a Draft Habitat Conservation Plan for the Souther Orange County Subregion which has been prepared in compliance with section 10(a) of the ESA and, subject to 40 C.F.R. § 1502.9(c), shall treat the NCCP Plan/HCP/EIRIEIS as a final EIS regarding the issuance of the Section 10(a) Permit as authorized by 40 C.F.R. § 1506.3(a). USFWS shall publish notice ("Application Notice") of the Section 10(a) Permit application in the Federal Register pursuant to 16 U.S.C. § 1539(c), as soon as possible after the publication of the final rule in the Federal Register listing the Target Species as an endangered species or threatened species. The USFWS shall, after public review and comment and a determination that all biological and procedural requirements have been met, issue a Section 10(a) Permit on the basis of the NCCP Plan/HCP and Implementing Agreement authorizing incidental takings of the listed species in accordance with the NCCP Plan/HCP as soon as possible after publication of the Application Notice in the Federal Register. Unless the USFWS makes a determination that there are Unforeseen Circumstances as provided in section 2.20 and 4.10, in any Section 7 Consultation with regard to the issuance of the Section 10(a) Permit the USFWS shall adopt the biological opinion issued pursuant to section 3.4.8 with regard to the approval of the NCCP Plan/HCP and Implementing Agreement as the biological opinion issued pursuant to Section 7(b) of the ESA. In any Section 7 Consultation that may be required with regard to the Planned Activities, subsequent to the approval of the NCCP Plan/HCP and Implementing Agreement, USFWS intends to rely, to the greatest extent feasible, on the biological opinion issued with regard to the approval of the NCCP Pian/HCP and Implementing Agreement. 4.4 Consideration of NCCP Plan in CDFG Decisions. In the absence of Unforeseen Circumstances as defined in section 2.20 and 4.10 of this Agreement, -15- NCCP Agreement June 17, 1993 9316800L.00 1 and provided an Implementing Agreement has been executed to implement the NCCP Plan in the Southern Orange County Subregion, CDFG shall (i) consider the NCCP Plan in any future determinations, including but not limited to any recommendations to the California Fish and Game Commission, with regard to the listing of one or more of the Target Species as a CESA Candidate Species, endangered species or threatened species pursuant to the CESA, (ii) consider that the satisfactory implementation of the NCCP Plan and Implementing Agreement will adequately provide for the conservation and protection of the Target Species and their habitats in the Plan Area, and regard that the areas included in the approved NCCP Plan do not require further special management considerations or protection, and (iii) not prescribe any additional mitigation, enhancement or compensation measures -Pursuant to CESA, or other certain statutes specifically addressed and provided for in the NCCP Plan, with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. 4.5 Listing of Target Species Before the NCCP Plan Has Been Approved by CDFG. If one or more of the Target Species is listed as a CESA Candidate Species, or as an endangered species or threatened species pursuant to the CESA before an NCCP Plan for the Southern Orange County Subregion has been approved by CDFG, the Landowner, one or more of the Local Governments or TCA may apply for a Section 2081 Permit to take such Target Species incidental to Planned Activities or for an approval pursuant to Fish and Game Code section 2084 ("Section 2084 Approval") to take any such Target Species which are listed as a CESA Candidate Species. A draft NCCP Plan for the Southern Orange County Subregion may be submitted as a proposed habitat management plan for purposes of the Section 2081 Permit application or Section 2084 Approval application. 4.6 Listing of Target Species After the NCCP Plan Has Been Approved By DFG. Pursuant to Fish and Game Code sections 2825(c), 2830 and 2835, if one or more of the Target Species is listed as a CESA Candidate Species or as an endangered species or threatened species pursuant to the CESA after the NCCP Plan for the Southern Orange County Subregion and associated Implementing Agreement have been approved by CDFG, except where CDFG has made a determination that there are Unforeseen Circumstances as.provided in section 2.20 and 4.10, the NCCP Plan may be considered as a habitat management plan under the requirements of the CESA. The CDFG shall issue a Permit substantially in the form of the NCCP Plan to take the Target Species and its habitat within the Plan area pursuant to section 2081 of the California Fish and Game Code. The CDFG shall rely on the NCCP Plan in making any recommendation to the California Fish and Game Commission with regard to Fish and Game Code section 2084. The CDFG shall consider that the satisfactory implementation of an Implementing Agreement and the NCCP Plan will adequately provide for the conservation, protection, restoration, and enhancement of the Target Species and their habitats in the Plan area. -16- NCCP Agreement June 17, 1993 937680OL.001 0 0 City Council Agenda Item -7- May 3 1994 TT:WR:hs Attachments: Draft resolution approving participation in the planning phase of the Natural Communities Conservation Program (NCCP). Exhibit A: "Memorandum of Agreement, Regarding the Preparation of a Natural Communities Conservation Plan (NCCP) for the Southern Orange County Subregion of the Coastal Sage Scrub Natural Community Conservation Program. 2. December 10, 1993 letter from Thomas B. Mathews, Orange County Environmental Management Agency to Tom Tomlinson, Planning Director regarding the NCCP. 3. April 18, 1994 Memorandum from Richard Denhalter, City Attorney to Tom Tomlinson, Planning Director regarding Planning Agreement for the NCCP. (c Awpwin60yp\nccpcss. cca) C.C. RESOLUTION NO. 94 -5 -3 - NATURAL COMMUNITIES CONSERVATION PROGRAM FOR COASTAL SAGE SCRUB, MEMORANDUM OF AGREEMENT FOR THE PLANNING PHASE (PHASE I) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO APPROVING PARTICIPATION IN THE PLANNING PHASE (PHASE 1) OF THE NATURAL COMMUNITIES CONSERVATION PROGRAM AND AUTHORIZING EXECUTION OF THE MEMORANDUM OF AGREEMENT. WHEREAS, the County of Orange, California Department of Fish and Game, and the United States Fish and Wildlife Service have developed the Natural Communities Conservation Program (NCCP) as a regional, inter jurisdictional approach to natural resource management and that program involves two phases, a planning phase and implementation phase; and, WHEREAS, the County of Orange, as managing agency has requested the City participate in the planning phase of the Natural Communities Conservation Program (NCCP) and execute a Memorandum of Agreement as an indication of their commitment to participate in the planning phase of the program; and, WHEREAS, participation in the planning phase of the Natural Communities Conservation Program (NCCP) does not obligate or commit the city to participate in implementation of the recommendations and actions and the implementation phase (phase II) will be subject to a separate Memorandum of Agreement; and, WHEREAS, the City's participation in the planning phase of the Natural Communities Conservation Program (NCCP) is statutorily exempt from the provisions of the California Environmental Quality Act (CEQA) pursuant to Section 15262 of the CEQA Guidelines which include "planning and feasibility studies which may lead to future action by an agency"; and, WHEREAS, the General Plan's Open Space and Conservation Element contains certain goals and policies which support natural resource conservation and participation in the planning phase of the Natural Communities Conservation Program (NCCP) is consistent with the goals and policies of the General Plan. NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of San Juan Capistrano does hereby find that: 1. Participation in the Natural Communities Conservation Program (NCCP) planning phase is consistent with the General Plan's Open Space and Conservation Element which contains certain goals and policies supporting natural resource conservation. ATTACHMENT 1 f 0 2. Preliminary mapping indicates that various areas of the City consist of coastal sage scrub habitat including City -owned open spaces. 3. Participation in the Natural Communities Conservation Program (NCCP) planning phase would make the City eligible for the 5% interim take provisions of the 4(d) rule (Federal Endangered Species Act). NOW, THEREFORE, BE IT FURTHER RESOLVED, that the City Council of the City of San Juan Capistrano does hereby approve participation in the Natural Communities Conservation Program (NCCP) planning phase (phase I) and authorizes execution of the Memorandum of Agreement provided as Exhibit A.. PASSED, APPROVED AND ADOPTED this 3rd day of May, 1994 by the following vote, to wit: AYES: NOES: ABSENT: Collene Campbell, Mayor Cheryl Johnson, City Clerk (cAwpwin60Vp\nccpcss.ccr) ATTACHMENT 1 i 0 MEMORANDUM OF AGREEMENT BY AND AMONG THE CALIFORNIA RESOURCES AGENCY, THE CALIFORNIA DEPARTMENT OF FISH AND GAME, THE UNITED STATES FISH AND WILDLIFE SERVICE, THE COUNTY OF ORANGE, CITIES WITHIN ORANGE COUNTY THE FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY, SANTA MARGARITA COMPANY, . COTO DE CAZA AND ARVIDA REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN FOR THE SOUTHERN ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM EXHIBIT A •- • MEMORANDUM OF AGREEMENT REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN FOR THE SOUTHERN ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM THIS MEMORANDUM OF AGREEMENT ("MOA" or "Agreement') dated as of 1993 is made by and among the CALIFORNIA RESOURCES AGENCY ("Resources Agency"), an agency of the State of California, CALIFORNIA DEPARTMENT OF FISH AND GAME ("CDFG'), a department of the Resources Agency, the UNITED STATES FISH AND WILDLIFE SERVICE ("USFWS"), an agency of the Department of Interior of the United States of America, the COUNTY OF ORANGE ('County"), a political subdivision of the State of California, the FOOTHILL/EASTERN TRANSPORTATION CORRIDOR AGENCY ("TCA'), a joint powers authority, THE CITIES OF (collectively, "Cities'), SANTA MARGARITA -COMPANY, ARVIDA and COTO DE CAZA. The County, TCA and the Cities may be referred to as 'Local Governments"; SANTA MARGARITA COMPANY, ARVIDA and COTO DE CAZA are referred to as "Landowner'; and all of the above-described entities may be referred to collectively as "Parties" and each individually as a 'Party". As among the nonfederal signatories to this MOA, this Agreement serves as the °Planning Agreement" described in the Southern California Coastal Sage Scrub Natural Community Conservation Planning Process Guidelines (dated September 1, 1992) (the "Process Guidelines"). This Agreement shall be effective as to all executing Parties upon execution by the Resources Agency, CDFG, USFWS, TCA, the County and the Landowner. 1.0 RECITALS. 1.1 The purpose of this Agreement is to establi§h the guidelines and procedures that will be followed by the Parties in the preparation of a Natural Community Conservation Plan ("NCCP Plan') for the Southern Orange County Subregion of Orange County with regard to the California gnatcatcher and other related Target Species, as described herein. 1.2 The Natural Community Conservation Planning Program ("NCCP Program") is established by California law under the Natural Community Conservation Planning Act of 1991 (Fish & G. Code, § 2800 et sem.) ('NCCP Act"). CDFG is the trustee agency implementing the NCCP Act: 1.3 The purpose of the statewide NCCP Program is to provide for regional protection and perpetuation of natural wildlife diversity while allowing i' • compatible and appropriate development and growth. The NCCP Program intends that these goals be achieved through the development and implementation of Natural Community Conservation Plans. The NCCP Program is designed to provide an alternative to current single species conservation efforts by formulating regional, natural community based habitat protection programs to protect the numerous species inhabiting each of the targeted natural communities. The Parties believe that the shift in focus from single species to natural communities will enhance the effectiveness of ongoing species preservation efforts. 1.4 The coastal sage scrub ("CSS") NCCP Program ("CSS NCCP Program") is the first effort to be undertaken pursuant to the NCCP Act. It is intended to be undertaken as a pilot project to develop a process for accelerated conservation planning at a regional scale, and it is contemplated that the NCCP process for coastal sage scrub may serve as a model for other efforts elsewhere in the State. This planning process is sponsored jointly by the California Resources Agency and CDFG, and conducted in cooperation with USFWS, pursuant to a Memorandum of Understanding between CDFG and USFWS dated December 4, 1991. 1.5 The CSS NCCP Program creates a regional planning and management system designed to protect coastal sage scrub habitat and to reconcile conflicts between habitat protection and new development within Southern California. The study area established for the CSS NCCP Program includes existing coastal sage scrub habitat in portions of five counties, including Orange County. The CSS NCCP Program anticipates that NCCP plans will be prepared for designated planning subregions. This Agreement is intended to establish the planning process for development of an NCCP Plan in the Southern Subregion of the CSS NCCP Program. As among the nonfederal signatories to the MOA, the Agreement serves as the "Planning Agreement" called for in the Process Guidelines. 1.6 The CSS NCCP Program contemplates an 18 month planning period from May 1, 1992 to October 31, 1993. Prior to and during this planning period, landowners and local governments have enrolled in the CSS NCCP Program by entering into voluntary agreements with CDFG. To the extent described in the enrollment agreements, no activity that would cause disturbance of CSS is allowed on land subject to a Landowner or Land Management Agency enrollment agreement during the planning period, other than actions mandated for public safety. This Agreement is not intended to replace the enrollment agreements. 1.7 USFWS and CDFG have identified a number of mammal, bird, reptile and plant species which utilize coastal sage scrub habitat as species which are candidates for, or have been proposed for listing, pursuant to the Federal Endangered Species Act, 16 U.S.C. sections 1531 et M. ("ESA") or the California Endangered Species Act, Fish and Game Code sections 2050 et M. ("CESA"). Among these -2- NCCP Agreement June 17, 1993 9316800L.001 • ' • species are the California gnatcatcher (Polioptila califomica califomica), the cactus wren (Campylorhynchus brunneicapillus), and the orange -throated whiptail lizard (Cnemidophorus hyperythrus beldingi). 1.8- The Landowner is the owner of certain real property situated in the County of Orange, State of California, within the Southern Orange County Subregion (the "Landowner's Property"). The Landowner's Property is currently used for a variety of purposes including, but not limited to, conservation, agricultural, residential and commercial purposes. 1.9 The Landowner, Local Governments, and TCA, have participated in long-term regional planning efforts to conserve contiguous open space, recreational and wildlife habitat areas. At present in the Southern Subregion of the County, there are approximately 30,040 acres of large habitat areas in dedicated regional open space and project -committed open space. These regional planning efforts have been conducted to reduce and mitigate the impacts of development, and have been coordinated with regional planning of development to meet housing and employment goals and the infrastructure needed to support those goals. The Parties intend that the NCCP Process be integrated with the regional open space planning which has already taken place to identify and ensure appropriate mitigation for impacts on fish and wildlife, and to promote the conservation of broad-based natural communities and species diversity. 1.10 The Parties recognize the important role public and private partnerships play in protecting and enhancing the habitat and survival of species which are presently unlisted as well as those which are listed or proposed for listing. The Parties acknowledge that Congress recognized this role in conjunction with the 1982 Amendments to the ESA. Congress expressed its intent, (H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 30, 31(1982) regarding encouraging such partnerships for unlisted, as well as listed species, as follows: (a) Application to Unlisted Species "Although the conservation plan is keyed to the permit provisions of the Act which only apply to listed species, the Committee intends that conservation plans may address both listed and unlisted species." (b) Public Private Partnerships "To the maximum extent possible, the Secretary should utilize this authority under this provision to encourage creative partnerships between the public and private sectors ...." -3- NCCP Agreement June 17, 1993 9316e00t.oc1 •' • (c) Long -Term Assurance Provided by and for the Habitat Conservation Plan Proponent "The Secretary, in determining whether to issue a long-term permit to carry out the conservation plan should consider the extent to which the conservation plan is likely to enhance the habitat of the listed species or increase the long-term survivability of the species or its ecosystem." ... "Permits of 30 or more years duration may be appropriate in order to provide adequate assurances to the private sector to commit to long-term funding for conservation activities or long-term commitments to restrictions on the use of land." (d) Reciprocal Assurances to be Provided by the Service "The Committee intends that the Secretary may utilize this provision to approve conservation plans which provide long- term commitments regarding the conservation of listed as well as unlisted species and long-term assurances to the proponent of the conservation plan that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in accordance with the terms of the plan. In the event that an unlisted species addressed in an approved conservation plan is subsequently listed pursuant to the Act, no further mitigation requirements should be imposed if the conservation plan addressed the conservation of the species and its habitat as if the species were listed pursuant to the Act" 1.11 The CSS NCCP Program, pursuant to California law, provides a mechanism for the furtherance of the goals of the ESA and CESA with respect to conservation of species. In enacting the NCCP Act, the California Legislature stated the following: (a) The continuing population growth in California will. result in increasing demands for dwindling natural resources and result in the continuing decline of the state's wildlife. (b) There is a need for broad-based planning to provide for effective protection and conservation of the state's wildlife heritage while continuing to allow appropriate development and growth. (c) Natural community conservation planning is an effective tool in protecting Califomia's natural diversity while reducing -4- NCCP Agreement June 17, 1993 93168001..001 0 - 0 conflicts between protection of the state's wildlife heritage and reasonable use of natural resources for economic development. (d) Natural community conservation planning promotes coordination and cooperation among public agencies, landowners, and other private interests, provides a mechanism by which landowners and development proponents can effectively participate in the resource conservation planning process, provides a regional planning focus which can effectively address cumulative impact concerns, minimizes wildlife habitat fragmentation, promotes multispecies management and conservation, provides one option for identifying and ensuring appropriate mitigation for impacts on fish and wildlife, and promotes the conservation of broad based natural communities and species diversity. (e) Natural community conservation planning can provide for efficient use and protection of natural and economic resources while promoting greater sensitivity to important elements of the state's critical natural diversity. (f) Natural community conservation planning is an effective planning process which can facilitate early coordination to protect the interest of the state, the federal government, and local public agencies, landowners, and other private parties. (g) Natural community conservation planning is a mechanism that can provide an early planning framework for proposed development projects within the planning area in order to avoid, minimize, and compensate for project impacts to wildlife. (h) Natural community conservation planning is consistent with and will support the fish and wildlife management activities of the Department of Fish and Game in its role as the trustee for fish and wildlife within the state. (i) The purpose of natural community conservation planning is to sustain and restore those species and their habitat identified by the Department of Fish and Game which are necessary to maintain the continued viability of those -5- NCCP Agreement June 17, 1993 9316800L.00 t 0 • biological communities impacted by growth and development. 1.12 The Parties agree that subject to the requirements of the ESA and CESA, in the event that any of the Target Species are listed as a threatened species or an endangered species under the ESA or CESA, or as a candidate species under the CESA, and in the absence of Unforeseen Circumstances, the approved NCCP Plan and Implementing Agreement developed pursuant to this Agreement will be treated as a Habitat Conservation Plan ("HCP") by USFWS in connection with the issuance of Section 10(a) permits, and will be relied on by USFWS in issuing Section 7 biological opinions; and will be treated as a habitat conservation plan by CDFG in connection with the issuance of Section 2081 Permits, and as the basis for findings and determinations pursuant to Fish and Game Code Section 2090 et M. 2.0 DEFINITIONS. 2.1 California Endangered Species Act. The "California Endangered Species Act* or "CESA" shall mean the California Endangered Species Act, Fish and Game Code section 2050 et seq. 2.2 California Gnatcatcher. The "California gnatcatcher" or "gnatcatcher" shall mean the California gnatcatcher (Polioptila californica califomica), including the eggs and all other life stages thereof. 2.3 Cactus Wren. "Cactus wren" shall mean the coastal population of the cactus wren (Campylorhynchus brunneicapillus), including the eggs and all other life stages thereof. 2.4 Orange -Throated Whiotail Lizard. "Orange -throated whiptail lizard" shall mean the orangesthroated whiptail lizard (Cnemidophorus hyperythrus beldingl) including the eggs and all other life stages thereof. 2.5 Conservation Representatives. "Conservation representatives" shall mean representatives of national and local environmental groups. 2.6 Southern Orange County Subregion. The "Southern Orange County Subregion' as generally shown in Exhibit A, attached hereto, refers to the Southern Orange County subregion of the CSS N.CCP Program within Orange County. This Agreement is intended to establish the planning process leading to an NCCP Plan covering the Southern Orange County Subregion. 2.7 CESA Candidate Species. "CESA Candidate Species" shall mean those species listed as candidates for listing as endangered or threatened pursuant to Fish and Game Code section 2074.2. -6- NCCP Agreement June 17, 1993 9316800L.007 2.8 CSS Species. "CSS Species" shall mean those species other than the Target Species, associated with coastal sage scrub habitat, including but not limited to those species identified by the Scientific Review Panel ("SRP") as associated with coastal sage scrub habitat. CSS Species will be identified in each subregional NCCP Plan. 2.9 Endangered Species Act. 'Endangered Species Act" or "ESA" shall mean the Federal Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seg. 2.10 Habitat. "Habitat" shall mean the area occupied by or suitable for occupation by particular wildlife species. Areas capable of restoration may be considered habitat for Target Species, for purposes of mitigation. 2.11 NCP. "HCP" shall mean a Habitat Conservation Plan pursuant to section 10 of the ESA. 2.12 AHCP. "AHCP" shall mean an Advance Habitat Conservation Plan. 2.13 NCCP Plan. "NCCP Plan" shall mean the plan for conservation of the coastal sage scrub natural community in the Southern Orange County Subregion, with special emphasis on the Target Species, prepared pursuant to this Agreement. The NCCP Plan shall be developed to meet the requirements for issuance of a section 10(a) permit under the ESA and a section 2081 permit under CESA. The NCCP Plan shall be deemed to be an Advance Habitat Conservation Plan and HCP covering the Target Species for purposes of the ESA. 2.14 Planned Activities. 'Planned Activities' shall mean the development of planned communities and major regional infrastructure improvements, including development of certain transportation corridors, as well as other development activities within the Southern Orange County Subregion as physically delineated or evaluated in the NCCP Plan. 2.15 Proposed Listing. "Proposed listing" shall mean the proposed listing by USFWS of one or more of the Target Species as either an 'endangered species` or a "threatened species," the proposed designation of the habitat of any such Target Species as "critical habitat" pursuant to the ESA, or the proposal to list a Target Species as "endangered" or "threatened", or to designate a species as a CESA Candidate Species by the California Fish and Game Commission pursuant to CESA. 2.16 Section 10(a) Permit. "Section 10(a) Permit" means any permit issued pursuant to section 10(a)(1)(B) of the ESA to permit incidental takings of endangered species or threatened species which may occur as a result of the Planned Activities. -7- NCCP Agreement June 17. 1993 9316BOOLOC1 2.17 Section 2081 Permit. "Section 2081 Permit" means any permit issued by CDFG pursuant to the CESA to authorize the take of endangered species or threatened species or CESA Candidate Species which may occur as a result of the Planned Activities. 2.18 Taking. "taking" or "take" shall have the same meaning as provided in the ESA and 50 C.F.R. 17.3 with regard to any activities subject to the ESA, and shall have the same meaning as provided in state law with regard to activities subject to the CESA. 2.19 Tar9et Species. 'Target Species" are: a. California gnatcatcher (Polioptila californica californica); b. Cactus wren (Campylorhynchus brunneicapillus); C. Orange -throated whiptail lizard (Cnemidophorus hypeWhrus beldin r . These species are to be the focus of conservation planning efforts leading to a NCCP Plan for the Southern Orange County Subregion and shall be treated in the NCCP Plan as if they were listed as an endangered species with regard to any NCCP Plan to which section 4.0 shall apply. In the sole discretion of the Local Governments and the Landowner, the NCCP Plan for the Southern Orange County Subregion may identify additional species as Target Species. Addressing the conservation needs of the Target Species is anticipated to provide significant protection for the coastal sage scrub natural community in general. 2.20 Unforeseen Circumstances. °Unforeseen Circumstances" shall mean (i) a significant adverse change in (A) the population of a Target Species, (B) the habitat and other biological resources of the Southern Orange County Subregion, or (C) the anticipated impacts of the Planned Activities or in other factors upon which the NCCP Plan/HCP is based, or (ii) any significant new or additional information relevant to an NCCP Plan/HCP (including information presented during a public comment period on a permit application or proposed rule) -that was not anticipated by the Parties at the time the NCCP Plan/HCP was approved and that would likely result in a significant adverse change in (A), (B) or (C) above. The NCCP Plan/HCP will identify significant adverse changes which are anticipated, both in the long and short term. The existence of Unforeseen Circumstances shall be established in accordance with section 4.10 until or unless modified in an approved Implementing Agreement. -8- NCCP Agreement June 17,1993 9316BOOLOC 1 n 3.0 RESPONSIBILITIES AND PROCEDURES FOR DEVELOPMENT AND APPROVAL OF THE PLAN. 3.1 Project Coordinators. Each party shall designate a Project Coordinator to monitor the implementation of this Agreement and to coordinate communication among the Parties during the NCCP Process. Each party shall notify each other party of their respective Project Coordinators in writing within fourteen (14) days of the effective date of this Agreement.. 3.2 Biological Data, 3.2.1 The Parties understand that the Secretary of The Resources Agency of the State of California has convened a Scientific Review Panel ('SRP'). The SRP will review and evaluate existing information regarding the biology, conservation, and protection of Target Species and will develop recommended standards necessary for the conservation and protection of these Target Species throughout the CSS study area. These recommendations will encompass conservation guidelines for the CSS natural community throughout the study area. 3.2.2 Information and analysis undertaken by the SRP shall be presumed to constitute the best information available unless further credible analysis or investigation show the contrary. 3.3 Preparation of the NCCP Plan and Environmental Documentation. 3.3.1 The NCCP Plan/HCP will be prepared in conjunction with environmental documentation pursuant to the California Environmental Quality Act ('CEQA') and the National Environmental Policy Act ('NEPA'). The Parties intend that public review of the NCCP Plan/HCP and the CEQA and NEPA documentation will occur simultaneously through the public review process described below in section 3.3.7 and section 3.4. It is contemplated that the NCCP Plan/HCP, the EIR, and the EIS, will be prepared as a single integrated document ("NCCP Plan/EIR/EIS"). If the NCCP Program is certified pursuant to Public Resources Code Section 21080.5, the NCCP Plan shall satisfy the requirements of Section 21080.5 regarding the preparation of a CEQA environmental document. 3.3.2 The NCCP Plan/HCP shall treat the Target Species in the Southern Orange County Subregion as though they were listed as 'endangered species' under the ESA and CESA for the purposes of developing conservation measures and proposed takings of the Target Species. The Draft NCCP Plan/HCP for the Southern Orange County Subregion will address the requirements of both the CESA and the ESA. -9- NCCP Agreement June 17, 1993 9316800L.00 7