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United States Department of the Interior FISH AND WILDLIFE SERVICE Sacramento Fish and Wildlife Office 2800 Cottage Way, Room W2605 Sacramento, California 95825-1846 IN REPLY REFER TO: 1-1-03-F-0225 June 24, 2003 Memorandum To: Regional Director, Fish and Wildlife Service, Region 1, Portland Oregon From: Field Office Supervisor, Sacramento Fish and Wildlife Office, Sacramento, California Subject: Intra-Service Biological and Conference Opinion on Issuance of a Section 10(a)(1)(B) Incidental Take Permit to the City of Sacramento and Sutter County for Urban Development in the Natomas Basin, Sacramento and Sutter Counties, California. This document transmits the biological/conference opinion of the U.S. Fish and Wildlife Service (Service), Sacramento Fish and Wildlife Office (SFWO), regarding the issuance of incidental take permits (ITP) to the City of Sacramento (City)(Applicant), Sutter County (Sutter) (Applicants or Proposed Permittees), and the Natomas Basin Conservancy (Conservancy) (Applicant) for implementation of the Natomas Basin Habitat Conservation Plan (NBHCP) pursuant to section 10(a)(1)(B) and section 10(a)(2) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.)(Act), and in accordance with section 7 of the Act and their implementing regulations (50 CFR §402). The Service proposes to issue the ITPs to the City, Sutter, and the Conservancy for a period of 50 years. The Applicants are requesting coverage under the ITPs for a total of twenty-two species (Covered Species). The ITPs would cover incidental take for one endangered animal species [vernal pool tadpole shrimp (Lepidurus packardi)], and three threatened animal species [giant garter snake (Thamnophis gigas)(snake), valley elderberry longhorn beetle (Desmocerus californicus dimorphus)(beetle), and vernal pool fairy shrimp (Branchinecta lynchi)]. The ITPs would also authorize the incidental take of one animal species formerly listed as threatened [Aleutian Canada goose (Branta canadensis leucopareia)(goose)], which was de-listed on March 20, 2001, one proposed species [California tiger salamander (Ambystoma californiense)(salamander)], and nine currently unlisted animal species - Swainson’s hawk (Buteo swainsoni)(hawk), white-faced ibis (Plegadis chihi)(ibis), bank swallow (Riparia Regional Director 2 riparia)(swallow), tricolored blackbird (Agelaius tricolor)(blackbird), northwestern pond turtle (Clemmys marmorata marmorata) (turtle), loggerhead shrike (Lanius ludovicianus)(shrike), burrowing owl (Athene cunicularia)(owl), western spadefoot toad (Spea hammondii)(toad), and midvalley fairy shrimp (Branchinecta mesovallensis)-, should they become listed in the future during the term of the permits. The permits would become effective to authorize take of the currently unlisted Covered animal Species concurrent with their listing under the Act. One endangered plant species [Sacramento Orcutt grass (Orcuttia viscida)], two threatened plant species [Colusa grass (Neostapfia colusana) and slender Orcutt grass (Orcuttia tenuis)] and four currently unlisted plants [Boggs Lake hedge-hyssop (Gratiola heterosepala), delta tule pea (Lathyrus jepsonii var. jepsonii), legenere (Legenere limosa), and Sanford's arrowhead (Sagittaria sanfordii)] would also be considered Covered Species and included on the Permits. Although take of plant species is not prohibited under the Act and therefore cannot be authorized under an incidental take permit, the plant species would be included on the permits in recognition of the conservation benefits provided to the species under the NBHCP. Assurances provided under the “No Surprises” rule at 50 C.F.R. 17.3, 17.22(b)(5) and 17.32(b)(5) would extend to all Covered Species. The Migratory Bird Treaty Act (MBTA) prohibits the taking, killing, or possessing of migratory birds. The MBTA identifies a variety of prohibited actions including the taking of individual birds, young, feathers, eggs, nests, etc. Actions conducted under the NBHCP and NBHCP Implementation Agreement (NBHCP IA) will comply with the provisions of the MBTA with strict avoidance measures for actions affecting MBTA-Covered Species such as the goose, hawk, ibis, swallow, blackbird, shrike, and owl. There are currently no MBTA Covered Species that are listed under the Act and subject to a special purpose permit at this time. Should any of the MBTA Covered Species become listed under the Act during the life of the Permits, the incidental take permits would also constitute an MBTA special purpose permit for that species for a three year term as specified under 50 C.F.R. 13 and 50 C.F.R. 21 for MBTA special purpose permits subject to renewal by the City and Sutter County. This biological opinion is based on information provided in the following documents: (1) the July 2002, draft NBHCP; (2) the August 2002, draft Environmental Impact Report/ Environmental Impact Statement (EIR/EIS) and supporting technical analyses and reports; (3) the July 2002, draft NBHCP IA; (4) the Site Specific Management Plans for the Natomas Basin Conservancy’s Mitigation Lands; (5) the April 2003, Final NBHCP, NBHCP IA, and EIR/EIS; (6) the November 1997, NBHCP; (7) the Natomas Basin Conservancy’s Implementation Annual Reports; (8) the February 2000, lawsuit (National Wildlife Federation, et al. v. Babbitt, S-99-274 (E.D.Cal.) [NWF v. Babbitt]) filed against the Service’s issuance of an Incidental Take Permit to the City for the 1997 NBHCP; (9) the August 15, 2000, Memorandum of Opinion and Order for NWF v. Babbitt; (10) the January 26, 2001, judgement declaring the City’s ITP for the 1997 NBHCP invalid; (11) the May 10, 2001, Settlement Agreement for NWF v. Babbitt; (12) the May 13, 2003, resolutions adopted by the City (Resolution Numbers 2003- 289 and 290) and Sutter (Resolution Number 03-30) approving the NBHCP; (13) the June 10, 2003, resolution (Resolution Number 03-039) approved by Sutter making three changes to the NBHCP; (14) the Regional Director 3 June 2003, Errata to the NBHCP; and (15) various other published and unpublished agency and academic literature and information in the Service’s files. CONSULTATION HISTORY In 1994, the Sacramento Area Flood Control Agency (SAFCA) proposed a flood control project for the Natomas Basin (Basin) that required a Section 404 Clean Water Act permit from the U.S. Army Corps of Engineers (Corps). In order to comply with its responsibilities under the Act, the Corps consulted with the Service. In its March 11, 1994, biological opinion (Service File # 1-1-94-F-0013) for the project, the Service determined that the project would remove an obstacle to urbanization in the Basin and that such development would result in the take of federally- listed species. The Corps issued a Section 404 Permit for SAFCA’s flood control project, conditional on the preparation of a habitat conservation plan (HCP) for the Basin. Following the Corps’ action, the local land use agencies (City, Sutter, and Sacramento County), with additional participation by the water agencies (Reclamation District Number 1000 [RD 1000] and Natomas Central Mutual Water Company [Natomas Mutual]), began preparing an HCP. In 1997, the City submitted its application to the Service for an incidental take permit to authorize take of 26 Covered Species within its portion of the Natomas Basin based on the 1997 basin-wide Natomas Basin HCP. The other land use agencies did not apply for incidental take permits based on the NBHCP at that time. The Service issued an ITP to the City in December 1997 based on the final NBHCP. Environmental review of the City’s 1997 HCP under the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) consisted of an Environmental Assessment/Finding of No Significant Impact prepared by the Service (Service, 1997a) and an Initial Study/Negative Declaration prepared by the City (City of Sacramento, 1996), respectively. In April 1998, the City began collecting habitat mitigation fees and issuing urban development permits under the 1997 NBHCP. These fees were transferred to the Conservancy, which was created by the City in October 1994 to serve as the Plan Operator. The Conservancy is a private, not-for-profit public benefit corporation that acquires and manages the system of habitat reserves created under the 1997 NBHCP. In addition, it will acquire and manage the system of habitat reserves created under the proposed NBHCP, if approved. The Conservancy’s efforts are guided by a Board of Directors, with members of the Board appointed by agencies receiving Permits under the NBHCP. The Conservancy’s Board of Directors was appointed by the City’s City Council in December 1998. The Board is assisted in its efforts by the Technical Advisory Committee (TAC), a group of experts representing the Service, California Department of Fish and Game (CDFG), and the Permittees. Habitat mitigation fees and mitigation lands have been/will be collected by the Permittee(s) and transferred to the Conservancy. Sutter and Sacramento County informally submitted separate HCPs to the Service in October 1998. The Service suspended review of their HCPs because a lawsuit, discussed below, was Regional Director 4 filed challenging the City’s HCP and ITP. As of June 2003, Sacramento County has not submitted an HCP for unincorporated lands in the Basin. Although Sacramento County is not one of the NBHCP’s applicants, the Metro Air Park Property Owners Association (MAPPOA), a group of landowners, submitted a separate HCP designed to be compatible with the 1997 NBHCP for the Metro Air Park (MAP) in July 1999. MAP is a special planning area adjacent to Sacramento International Airport (Airport) in Sacramento County which has been approved by the County for industrial and commercial development. Metro Air Park comprises 1,983 acres of the 17,500 acres of planned urban development described in the NBHCP. The Service issued an ITP to MAPPOA on February 21, 2002. RD 1000 and Natomas Mutual (Water Agencies) also participated in basin-wide habitat conservation planning efforts. On September 8, 1998, the Water Agencies submitted an incidental take permit application and draft implementation agreement based on the 1997 City of Sacramento implementation agreement.
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