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