Chapter 6: Conditions on Covered Activities and Application Process

Chapter 6 Conditions on Covered Activities and Application Process 6.1 Introduction As required by ESA (Section 10[a][2][A][ii]) and Fish and Game Code Sections 2820 (a)(6) and 2820(f), this Plan includes measures to avoid and minimize take of covered species. These measures to avoid and minimize impacts are described as conditions on covered activities and are designed to achieve the objectives listed below. Provide avoidance of covered species during implementation of covered activities throughout the study area. Prevent take of individuals from covered activities as prohibited by law (e.g., take of fully protected species). Minimize adverse effects on natural communities and covered species where conservation actions will take place. Avoid and minimize impacts on jurisdictional wetlands and waters throughout the study area. In the context of effects on covered species, one of the greatest benefits of an HCP/NCCP is that mitigation for individual projects can be implemented systematically on a regional scale. This enables a more comprehensive approach to conservation that concentrates protection where it has the greatest value. The Plan also restricts covered activities in high-value land cover types (e.g., wetlands, serpentine grassland) and for some species (e.g., covered plants and selected covered wildlife species). By protecting high-quality areas in the Reserve System and restricting covered activities in areas of higher biological value, regional avoidance and minimization goals are supported. This chapter describes conditions on covered activities that help meet regional avoidance and minimization goals. Regional avoidance and minimization reduces the need for individual projects to avoid and minimize impacts at the project scale and allows streamlining of regulatory requirements. This Plan assumes that take will result from individual covered activities and that this take will be mitigated through the conservation strategy (Chapter 5). Most activities covered under this Plan are required to provide limited documentation of field conditions to verify these assumptions (see Section 6.2 Exemptions from Conditions). Santa Clara Valley Habitat Plan August 2012 6-1 05489.05 Chapter 6. Conditions on Covered Activities and Application Process Avoidance and minimization measures are regulated by federal, state, and local programs. The conditions on covered activities (avoidance and minimization measures), described in this chapter do not supersede requirements by other agencies and are not intended to provide a basis for non-compliance with other applicable design guidelines required by other federal, state, and local agencies. This chapter also describes the application process for individual projects to request coverage under this Plan. The application process is described in detail at the end of this chapter in Sections 6.7 Receiving Take Authorization under the Plan and 6.8 Habitat Plan Application Package. The conditions on covered activities and application process are included in this chapter together so that project proponents have one location in this document in which all requirements are described. The NCCP Act requires that the Permittees get concurrence from the Wildlife Agencies before adopting, amending, or approving any plan or project that is inconsistent with the objectives and requirements of this Plan1. The conditions described in this chapter are designed to ensure this consistency and provide standard and predictable requirements for project applicants. However, Permittees may need to adopt or impose additional conditions beyond those described in this chapter for unanticipated projects or effects in order to ensure consistency with the Habitat Plan and compliance with the NCCP Act. The Permittees will evaluate all projects respective to their authorities to ensure that all applicable conditions described in this chapter have been incorporated into the project prior to extending take coverage under the Plan. Chapter 8 describes applicant responsibilities in the application process. In addition to the conditions described in this chapter to avoid and minimize impacts, covered activities may also require payment of mitigation fees (see Chapter 9), provision of land in lieu of mitigation fees (see Chapter 8), or habitat restoration or creation in lieu of wetland fees. 6.2 Exemptions from Conditions Many projects within the study area do not disturb the ground or have little or no measurable impact on the covered species or natural communities. Because the probability of take is so low, the need to enforce conditions on the projects and activities specified below would not provide a net benefit for species. Therefore, these covered activities are not subject to the conditions described in this chapter. Quantifiable impacts associated with activities exempt from conditions of the Habitat Plan will be reported in the Application Package (see Section 6.8, below) (impacts that cannot be quantified will not be tracked). Although these covered activities are exempted from the conditions, all of them receive take coverage (Table 6-1). 1 Fish and Game Code Section 2820(b)(3). Santa Clara Valley Habitat Plan August 2012 6-2 05489.05 Chapter 6. Conditions on Covered Activities and Application Process Exemptions based on land cover types are based on the mapping for this Plan at the time of permit issuance and the nature of covered activities previously permitted on the site. Many of the covered activities exempt from the conditions in this chapter may also be exempt from the Habitat Plan fees, as described in Chapter 9, Section 9.4.1 Habitat Plan Fees. The association between covered activities exempt from conditions on covered activities and Habitat Plan fees are shown in Table 6-1. The following activities and projects are exempt from all of the conditions in this chapter and are not tracked as impacts by the Implementing Entity (as described above)2. Projects that do not result in ground disturbance do not result in release of potential water quality contaminants, or do not create new wildlife barriers. Private-sector, routine-maintenance activities that require a development, grading, or building permit, and that occur inside the urban service area (private-sector activities that do not require a development, grading, or building permit are not covered by the Plan or its conditions or fees). Private-sector, routine-maintenance activities that require a development, grading, or building permit; that occur outside of the urban service area; and that occur within 50 feet of all existing structures at the time of Plan commencement or within 50 feet of structures that were permitted for incidental take under the Habitat Plan. Any covered activity described in Chapter 2 that occurs in urban-suburban, landfill, reservoir3, or agriculture developed4 land cover types as verified in the field, unless the activity may affect a mapped or unmapped stream, riparian, serpentine, pond, or wetland land cover types, or the activity is located in a stream setback (see Condition 11 for a discussion of stream setbacks). Routine infrastructure maintenance by public agencies within the planning limit of urban growth that do not affect stream, riparian, serpentine, ponds, or wetland land cover types. Routine infrastructure maintenance by public agencies that occurs in urban- suburban, landfill, reservoir, or agriculture developed land cover types that do not affect stream, riparian, serpentine, pond, or wetland land cover types. Examples of such activities include filling pot-holes and resurfacing existing roads without expansion of the paved area. 2 Project proponents are still required to comply with survey and avoidance requirements for applicable local, state, and federal laws not addressed by the Habitat Plan (e.g., local tree ordinances, state fully protected species, the federal Migratory Bird Treaty Act). 3 “Reservoir” does not include the dam face. Exemptions described in this chapter do not apply to projects impacting the face of covered dams. 4 The land cover type “agriculture developed” (also known as agriculture developed/covered ag) is defined in Chapter 3 as intensive agricultural operations such as nurseries and greenhouses. Santa Clara Valley Habitat Plan August 2012 6-3 05489.05 Chapter 6. Conditions on Covered Activities and Application Process The following activities5 are also exempt from all conditions in this chapter but will be tracked by the Implementing Entity as impacts when they occur on natural land cover types. Additions to existing structures or new structures that are within 50 feet of an existing structure (e.g., a new garage) that result in less than less than 5,000 square feet of impervious surface so long as no stream, riparian, wetlands, ponds, or serpentine land cover type are affected. Additions are cumulative and must be calculated based on the footprint of the structure at time of Plan implementation to determine whether this threshold has been crossed. A covered activity on a parcel of less than 0.5 acre or less as long as no serpentine, stream, riparian, pond, or wetland land cover type is within the parcel. A project proponent of a covered activity in the Plan will not be required to comply with the conditions in this chapter or pay any Habitat Plan fees if the proponent of the activity provides written confirmation to the Implementing Entity that the CDFG and USFWS have determined that the activity is not subject to CESA and ESA, respectively; or has already received the

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