Understanding the Habitat Conservation Planning Process in California A Guidebook for Project and Regional Conservation Planning

Biology l Consensus Building l Planning l Economics l Regulatory Compliance

Paul Cylinder, Ph.D., Kenneth Bogdan, J.D., and David Zippin, Ph.D.

Published by

Understanding the Habitat Conservation Planning Process in California

A Guidebook for Project and Regional Conservation Planning

Paul Cylinder, Ph.D. Kenneth Bogdan, J.D. David Zippin, Ph.D.

Published By:

Understanding the Habitat Conservation Planning Process in California

A Guidebook for Project and Regional Conservation Planning

Copyright © 2004 by Paul Cylinder, Kenneth Bogdan, and David Zippin

All rights reserved.

Institute for Local Self Government 1400 K Street, Suite 400 Sacramento, CA 95814 Telephone 916/658-8208 Fax 916/658-8240 Internet www.ilsg.org

ABOUT THE AUTHORS

Paul Cylinder, Ph. D., is a managing principal with Jones & Stokes and has been involved with regional habitat conservation planning efforts throughout California and the western United States.

Kenneth Bogdan, J.D., is environmental counsel for Jones & Stokes and specializes in analyzing issues regarding compliance with the federal and California Endangered Species Acts, CEQA, NEPA, and the Clean Water Act.

David Zippin, Ph.D., is an associate principal with Jones & Stokes and has managed several large habitat conservation plans and natural community conservation plans in California.

The authors would like to acknowledge several individuals for their contributions to this handbook. We thank Christy Anderson and Alan Barnard for preparation of graphics, Jennifer Hemmen for work on early manuscripts, and Jim McCue for compilation of appendices. We would also like to thank Larry Goral, Chris Beale, Tara Mueller, and Bill Higgins for critical review of the text.

Table of Contents

Chapter I. Introduction ………………………………………………………………… 1

Chapter II. The Federal Endangered Species Act ……………………………………... 6

Chapter III. California Endangered Species Laws …………………………………….14

Chapter IV. Project Planning and Compliance under Federal and

California Endangered Species Acts …………………………………………. 24

Chapter V. Regional Habitat Conservation Planning: Components of

the Planning Process ………………………………………………………….. 31

Chapter VI. Regional Habitat Conservation Planning: Elements of the Plan ………... 43

Appendix A. Federal Endangered Species Act ……………………………………. A-1

Appendix B. California Endangered Species Act ………………………………….. A-2

Appendix C. Natural Community Conservation Planning Act …………………….. A-3

Appendix D. Five-Point Policy for Habitat Conservation Plans …………………… A-4

Appendix E. Federal Section 10 ESA Incidental Take Permit Regulations ……….. A-5

Appendix F. Environmental Web Sites ……………………………………………. A-6

Appendix G. Regional Habitat Conservation Plans Available on the Internet ……. A-12

Appendix H. Section 10 Permit Application Form ………………………………... A-16

Appendix I. State- and Federally Listed Species in California …………………… A-17 The purpose of this guide is to provide those who are involved in projects or planning Chapter I efforts an understanding of the regulations and issues affecting protected species, focusing on the requirements for habitat Introduction conservation plans, and advice and recommendations regarding best approaches to project planning and regional conservation planning for protected species.

ENDANGERED SPECIES : A TALE OF TWO PLANNING PROCESSES

Federal and state laws that protect threatened and endangered species each provide planning procedures for the California’s climate, topography, and protection of these species. The federal ESA geology make it one of the richest biological offers Habitat Conservation Plans (HCPs).3 regions of the world outside the tropics. The California Natural Community California has more threatened and Conservation Planning Act (NCCPA) endangered species protected under the provides for Natural Community federal Endangered Species Act (federal Conservation Plans (NCCPs) that include ESA)1 than any other state except Hawaii. In compliance with the California ESA.4 addition, California has one of the strongest state endangered species laws in the United Habitat Conservation Plans States. The California Endangered Species 2 HCPs are the federal mechanism for Act (California ESA) protects many species resolving conflict between development and of wildlife and plants that are not protected the protection of threatened and endangered under its federal counterpart. California’s species. In many areas of California, great biological diversity, strong development of land for housing and other conservation laws, and rapid growth create a needs adversely affects wildlife and fish recipe for conflict. This conflict is often protected by the federal ESA. Proponents of resolved through the planning processes of development projects can address this the federal and California Endangered concern by preparing a Habitat Conservation Species Acts. Plan.

This guidebook provides an overview of HCPs spell out the measures to be taken that federal and California laws that protect will protect endangered species affected by threatened and endangered species. The the project. When an HCP receives the authors provide recommended approaches to approval of a federal wildlife agency (either both project planning and regional the U.S. Fish and Wildlife Service or NOAA conservation planning where these species Fisheries5), the project proponent receives a could be adversely affected by private, local agency, and state agency actions. 3 16 U.S.C. § 1539(a). 4 Cal. Fish & Game Code §§ 2800 – 2840. 5 1 16 U.S.C. §§ 1531 and following. NOAA Fisheries = National Oceanic and Atmospheric Administration National Marine 2 Cal. Fish & Game Code §§ 2050 and following. Fisheries Service. GUIDE TO HABITAT CONSERVATION PLANNING INTRODUCTION permit that allows the resulting impacts on Take Permit” (often referred to as an ITP)10 threatened or endangered species. By to non-federal project proponents upon encouraging development projects to include completion of an approved “conservation measures to reduce the impact on plan.” Conservation plans later became endangered species, habitat conservation known as Habitat Conservation Plans or planning reconciles the goals of species HCPs.11 The San Bruno Mountain Habitat protection and economic development.6 Conservation Plan in San Mateo County, California, was the first HCP authorized The federal ESA was enacted in 1973 in under this new provision. response to concerns that previous efforts to protect endangered species did not address The intention of the 1982 amendment was to the need to protect the ecosystems on which protect endangered species on non-federal these species depend. The federal ESA land by requiring permit applicants to prohibits the “taking” of endangered species minimize and mitigate their impacts on of fish or wildlife.7 A “take” is defined to endangered species. In exchange, they mean “harass, harm, pursue, hunt, shoot, received a permit documenting compliance wound, kill, trap, capture, or collect, or to with the federal ESA. However, the cost and attempt to engage in any such conduct.”8 uncertainty associated with developing an The definition of “harm” has an important HCP discouraged many private landowners impact on land use decisions. Harm is from seeking Incidental Take Permits. defined under federal law as “significant Between 1982 and 1992, only 14 Incidental habitat modification or degradation” that Take Permits associated with Habitat results in death or injury to wildlife by Conservation Plans were approved.12 “significantly impairing essential behavioral patterns, including breeding, feeding or After 1992, new regulations, policies, and sheltering.”9 Habitat modification that harms guidelines were adopted that provided an endangered species constitutes a additional protective assurances to prohibited take. landowners. As a result, the number of approved HCPs nationwide increased to Prior to 1982, only federal agencies could more than 290 by 1999. As of July 2003, obtain an exemption for projects that 427 Habitat Conservation Plans have been resulted in the taking of a threatened or approved nationwide, covering more than 30 endangered species. Private landowners and million acres and 200 threatened and local agencies risked violating the federal endangered species. In California, 127 HCPs ESA if a project resulted in the take of a and subsequent amendments (adding species federally listed species. This statutory or land to an existing Habitat Conservation inflexibility led Congress to amend the Plan) have been approved. Hundreds of federal ESA in 1982. The amendment other HCPs are in development nationwide. authorized the issuance of an “Incidental

6 Daniel Pollack, The Future of Habitat Conservation: 10 Section 10(a)(1)(B) of the federal ESA authorizes The NCCP Experience in Southern California at 6, the federal wildlife agencies to issue permits for the (2001). taking of endangered wildlife or fish if it is

7 “incidental” to other lawful activities. 16 U.S.C. § 16 U.S.C. § 1538(a)(1). 1539(a)(1)(B). 8 16 U.S.C. § 1532(19). 11 U.S. Department of the Interior, Habitat 9 50 C.F.R. § 17.3. See Babbitt v. Sweet Home, 515 Conservation Planning and Incidental Take Permit U.S. 687 (1995) (interpreting this regulation as Processing Handbook at 1-2 (1996). prohibiting habitat modification which will actually kill or injure a particular member of an endangered 12 Daniel Pollack, Natural Community Conservation species where such harm is proximate and Planning (NCCP): The Origins of an Ambitious foreseeable). Experiment to Protect Ecosystems 10 (2001).

2 GUIDE TO HABITAT CONSERVATION PLANNING INTRODUCTION

Habitat Conservation Plans have evolved to officials designated the California address a wide range of development gnatcatcher as a threatened species in 1993, activities. Their scope encompasses small meaning that it was likely to become housing developments as well as forestry endangered in the foreseeable future.14 They and regional development activities covering also adopted a special rule that allowed the millions of acres. Some project HCPs Natural Community Conservation Planning address a single species on less than 1 acre. Act to provide the plan for conservation of Regional HCPs may address dozens of the gnatcatcher. species on thousands or millions of acres, requiring multiple partners in their In 1996, the first two Natural Community development and implementation. Conservation Plans were approved: the Central/Coastal Orange County Natural Natural Community Conservation Plans Community Conservation Plan and the San Diego Multiple Species Conservation In the late 1980s, rapid urban development Program (covering most of western San and declining wildlife populations in Diego County). By the end of the 1990s, Southern California put urban development nine NCCPs were under way in San Diego, and the federal and California Endangered Orange, Riverside, Los Angeles, and San Species Acts on a collision course. At the Bernardino Counties. In August 2000, an center of the conflict was the fate of more NCCP was approved for the massive than 340,000 acres of coastal sage scrub CALFED Bay–Delta Program covering occupied by the coastal California water infrastructure and habitat restoration gnatcatcher, a small songbird whose range projects throughout the Sacramento-San extends across San Diego, Orange, Joaquin Delta, San Francisco Bay, and Riverside, San Bernardino, and Los Angeles 13 Central Valley. Counties. Environmentalists petitioned state and federal wildlife agencies to A new Natural Community Conservation designate the gnatcatcher as endangered, Planning Act became effective on January 1, against the opposition of the development 2003. The new NCCPA codifies many of the community. elements used to develop the early NCCPs.

Under the Natural Community Conservation To address this conflict, the California Planning Act, the California Department of Legislature passed the Natural Community Fish and Game may authorize take for Conservation Planning Act in 1991. The Act species that may become protected under the provided for a regional planning process California ESA in the future. focused on protecting biological communities rather than single species. The The Natural Community Conservation goal of the Act was to conserve species Planning Act addresses the need for broad- before they became endangered. The plans based planning to accommodate conflicting developed under the Act are called Natural demands for wildlife conservation and urban Community Conservation Plans (or development. The Act’s conservation NCCPs). requirements go beyond state and federal

requirements for mitigation of impacts by The first significant effort to use this new requiring plan preparers to contribute to the species protection tool occurred in the mid- recovery of threatened and endangered 1990s in Southern California when state species and their habitat. wildlife officials opted to use the Natural

Community Conservation Planning Act to protect the gnatcatcher. Federal wildlife

13 Id. at 6. 14 See16 U.S.C. § 1532(6) and (20).

3 GUIDE TO HABITAT CONSERVATION PLANNING INTRODUCTION

THE ROLE OF LOCAL AGENCIES Conservation Plan/Natural Community Conservation Plan into a single planning Endangered species live in habitats that are process for the western County; this not confined by property lines and city and undertaking is known as the Riverside county limits. Agricultural and urban County Integrated Project. development has pushed many species to the brink of extinction. Several California WHAT IS COVERED IN THIS GUIDE? species have already gone extinct. As California continues to grow, pressure on Individual project Habitat Conservation endangered and threatened species will Plans and California ESA compliance differ increase. Federal agencies; state agencies; in many ways from regional HCPs and and local, state, and national conservation NCCPs. Federal and California laws and organizations are actively acquiring and regulations applicable to project planning managing land for conservation in and regional conservation planning are California. Local agencies can complement summarized in Chapters II and III. Chapter these efforts through regional Habitat II outlines the requirements of the federal Conservation Plans and Natural Community ESA and specifically addresses the Conservation Plans, which provide an regulatory requirements for Habitat alternative to project-by-project mitigation. Conservation Plan preparation and Regional conservation planning at the local permitting. Chapter III describes the level can help relieve the pressure of urban California laws protecting threatened and development before California loses more of endangered species, including the California its natural heritage. Many land use planners ESA, Natural Community Conservation consider regional conservation planning to Planning Act, and other relevant sections of be one element of the emerging planning the California Fish and Game Code. techniques known as “Smart Growth.” Chapter IV provides a recommended Federal and state wildlife conservation laws approach to project planning for compliance supplement local agencies’ land use with the federal ESA and the California authority with legal and planning tools that ESA. Chapters V and VI provide can be combined to achieve effective species recommendations for preparing a regional protection and habitat conservation. Local conservation plan in compliance with the agencies that adopt a proactive approach to federal ESA and the California Natural habitat conservation planning can grow Community Conservation Planning Act. more efficiently and create more livable Chapter V provides a recommended communities. For example, residents in approach to initiating and conducting the many jurisdictions in California are planning process. Chapter VI provides a demanding more open space and access to description of the elements of a joint natural areas in which to experience nature. regional Habitat Conservation Plan/Natural Regional conservation planning can help to Community Conservation Plan. achieve these goals. Some local jurisdictions are beginning to combine regional federal Extensive appendices provide useful and state conservation plans with more information for preparation of Habitat traditional regional planning tools. By Conservation Plans, California ESA integrating general plans, specific plans, compliance, and Natural Community open space plans, and transportation plans, Conservation Plans. The full texts of the local agencies can create a comprehensive federal ESA, the California ESA, and the regional planning process. For example, Natural Community Conservation Planning Riverside County is engaged in an ambitious Act are provided in Appendices A, B, and C, effort to combine a general plan update, respectively. Important federal guidance and transportation plan, and Habitat regulations regarding Habitat Conservation

4 GUIDE TO HABITAT CONSERVATION PLANNING INTRODUCTION

Plan preparation and permit processing are provided in Appendices D and E. Appendices F and G provide lists of Web sites useful in preparing conservation plans. Appendix H includes the permit application used by federal wildlife agencies. Appendix I includes lists of animal and plant species in California that are protected by California and federal law.

5 endangered or threatened by one of the federal wildlife agencies on their own or Chapter II in response to a citizen petition. Critical habitat is then designated for each species unless such designation is The Federal Endangered determined not to be prudent. Once a species is listed, a recovery plan3 is Species Act required to be developed for the conservation and survival of the species. The goal of a recovery plan is to improve the status of the species to the point where it can be delisted. The level of protection of species listed as threatened is determined at the time of listing under what are called “Section 4(d) Rules”. The purpose of the federal ESA is to conserve the ecosystems on which protected · Section 7: Federal Consultation species depend.1 The Secretary of the Requirement. Federal agencies must not Interior and the Secretary of Commerce undertake actions that are likely to share responsibility for administration of the jeopardize the continued existence of federal ESA. In turn, they have delegated any listed species or result in the this responsibility to their respective wildlife destruction or adverse modification of agencies, the U.S. Fish and Wildlife Service designated critical habitat. Whenever a and NOAA Fisheries (formerly known as federal agency proposes to authorize, the National Marine Fisheries Service). The fund, or otherwise carry out a U.S. Fish and Wildlife Service has discretionary action that may affect a jurisdiction and permitting authority over listed species or critical habitat, that terrestrial wildlife, freshwater fish, and some agency must consult with either the U.S. marine species. NOAA Fisheries’ authority Fish and Wildlife Service or NOAA is limited to marine species, which include Fisheries. anadromous2 species of fish such as salmon and steelhead. · Section 9: Prohibition on Take. This section provides the major substantive Although the focus of this guidebook is non- prohibition of the federal ESA, which federal activities that require the preparation prohibits any person or entity from, of a Habitat Conservation Plan and issuance among other things, the take, of an Incidental Take Permit, it is useful to possession, transport, delivery, and sale understand how the federal ESA is of any endangered fish or wildlife organized. There are four main elements to species. Take is defined broadly to the Act. include actions such as harass, harm, pursue, hunt, shoot, wound, kill, trap, · Section 4: Species Listing, Critical capture, or collect. Endangered plants Habitat Designation, and Recovery are protected from transport and sale Planning. Species are listed as and from removal, damage, or destruction in areas under federal jurisdiction. 1 See Appendix A for the complete text of the federal ESA. 2 Anadromous fish are species that live part of the 3 lifecycle in the ocean and part in fresh water. Recovery plans are guidance documents and have no legal force.

GUIDE TO HABITAT CONSERVATION PLANNING FEDERAL ENDANGERED SPECIES ACT

· Section 10: Exceptions to the Take funded, and alternatives considered. The Prohibition. Any non-federal entity can size and complexity of an HCP depends on obtain a permit for the “incidental take” the number of species it covers, the amount of a listed species upon submission and of take involved, and the number and type of approval of an Incidental Take Permit activities proposed by the applicant for application and a Habitat Conservation permitting. Chapter IV of this guidebook Plan. This chapter focuses on the provides recommendations for compliance requirements for permitting under with the federal ESA for single projects. Section 10. Chapters V and VI provide recommendations for preparation of regional HCPs that cover multiple species in large INCIDENTAL TAKE PERMITS AND planning areas.

HABITAT CONSERVATION PLANS The Incidental Take Permit allows just that; Incidental Take Permits are required for any the “take” of species that will not put the activity that could result in take of a long-term survival and recovery of protected threatened or endangered species by an species at risk. Each HCP must include individual, corporation, local agency, state conservation measures that avoid, minimize, agency, or other non-federal entity.4 and mitigate take. The required standard for “Incidental take” means the take of mitigation in a Habitat Conservation Plan is protected species “that is incidental to, but “to the maximum extent practicable, not the purpose of, otherwise lawful minimize and mitigate the impacts of activities.”5 The federal ESA requires [incidental take]” as long as “the taking will Incidental Take Permits for the take of not appreciably reduce the likelihood of the survival and recovery of the species in the protected wildlife and fish species. Listed 6 plants are protected only where there is a wild.” federal action; hence, Incidental Take Permits do not apply to plants. In practice, A Habitat Conservation Plan is not typically however, listed plants are often included in required to contribute to recovery of a Habitat Conservation Plans to satisfy the species. However, it is required to avoid requirement for the U.S. Fish and Wildlife interfering with successful implementation Service to assess the affects of its actions. of a Recovery Plan. For a species with a For more information on federal laws limited range or a species with a range that pertaining to plants, see “Phase 2: Permit falls mostly or entirely within a planning Processing.” area, a Habitat Conservation Plan may be required to meet a recovery standard. To receive an Incidental Take Permit, the non-federal entity must prepare a Habitat HCPs may also include conservation Conservation Plan regardless of project size measures for species that are not presently or the number of species it affects. The HCP listed as threatened or endangered. Including is required to describe the expected impact these non-listed species in the HCP can of the take, the impact minimization and avoid the need to amend the plan in the mitigation measures that will be employed, event that they become listed before how implementation of the plan will be completion of the permit holders’ activities.

4 See Federal Endangered Species Act Section 10, 16 The federal ESA and the regulations that U.S.C. 1539. The text of U.S. Fish and Wildlife implement it offer little practical guidance Service Section 10 regulations (50 C.F.R. 17) and for Incidental Take Permit applicants, and NOAA Fisheries Section 10 regulations (50 the federal wildlife agencies themselves had C.F.R.222) are provided in Appendix E.

5 See 50 C.F.R. 17.22. 6 U.S.C. 1539(a)(2)(a)

7 GUIDE TO HABITAT CONSERVATION PLANNING FEDERAL ENDANGERED SPECIES ACT little guidance on the standards they were · any additional measures the federal expected to enforce. In 1996, the U.S. Fish wildlife agency requires7. and Wildlife Service and NOAA Fisheries A draft Implementation Agreement (IA; also addressed this problem by publishing the Habitat Conservation Planning and known as an Implementing Agreement) is Incidental Take Permit Processing often submitted with the application. An IA is a contract that describes the roles and Handbook (Handbook). The Handbook can responsibilities of the permit holder, the be found at the U.S. Fish and Wildlife federal wildlife agency, and any other Service’s Web site. The Handbook explains parties responsible for implementing the the basic program policies and procedures. Habitat Conservation Plan. The federal An amendment to the Handbook was wildlife agencies require an IA for large published in 2000 to provide additional guidance on five areas: (1) biological goals regional HCPs. An Implementation Agreement is optional for smaller, single - and objectives, (2) permit duration, (3) project HCPs. monitoring, (4) adaptive management, and (5) public participation. This amendment is known as the “Five-Point Policy” (Appendix Habitat Conservation Plans and NEPA D). Since the issuance of an Incidental Take

Permit is a discretionary federal action that THE THREE PHASES OF THE may significantly affect the human INCIDENTAL TAKE PERMIT environment, the federal wildlife agencies PROCESS are required to comply with the National Environmental Policy Act (NEPA). NEPA is The Incidental Take Permit process can be similar in form to the California divided into three phases: (1) preparation of Environmental Quality Act (CEQA) and is the HCP and application materials, (2) applied to federal governmental actions. application processing by U.S. Fish and NEPA requires federal agencies to evaluate Wildlife Service or NOAA Fisheries, and the impact of their actions on the (3) HCP implementation and oversight. environment as a whole.8 The federal wildlife agencies cannot issue an Incidental Phase 1: Preparing the Take Permit without evaluating its impact Permit Application on the environment. The evaluation must consider all aspects of the human Preparing the Habitat Conservation Plan is environment, not just the impacts on the most important part of applying for an Incidental Take Permit. At a minimum, a protected species.

HCP must provide the following If the federal wildlife agencies do not information: consider the project to be “categorically · impacts likely to result from the excluded,” then, at a minimum, approval of proposed taking; an Incidental Take Permit application requires preparation of an Environmental · steps to monitor, minimize, and mitigate Assessment and a Finding of No Significant these impacts; Impact. If the environmental impact of the · funding assurances for conservation Incidental Take Permit is significant, an measures; Environmental Impact Statement and · procedures for handling unforeseen circumstances; 7 See federal wildlife agency regulations at 50 C.F.R. 17 (U.S. Fish and Wildlife Service) or 50 C.F.R. 222 · why alternative actions that would avoid (NOAA Fisheries). take were not implemented; and 8 42 U.S.C. §§ 4321 and following.

8 GUIDE TO HABITAT CONSERVATION PLANNING FEDERAL ENDANGERED SPECIES ACT

Record of Decision must be prepared. The Record of Decision documents the final 5TH AMENDMENT “REGULATORY agency action. TAKINGS” CLAIMS RARE FOR HCPs AND NCCPs Preparation of an Environmental Assessment or Environmental Impact ESA restrictions are sometimes alleged to Statement makes the Habitat Conservation infringe on the private property rights under the Plan subject to public notice and comment. Fifth Amendment to the United States The federal wildlife agencies publish notice Constitution. These “taking” issues often arise of an Incidental Take Permit application in through restrictions on the use of property the Federal Register.9 The federal wildlife through Section 9’s prohibition against take and agencies consider public comments on the Section 7’s consultation responsibilities for Habitat Conservation Plan before they federal agencies (requiring special restrictions to approve the Incidental Take Permit minimize effects on listed species and avoid jeopardy or destruction of critical habitat). application. They also review public However, these claims rarely arise with the comment on the Environmental Assessment Section 10 process. or the Environmental Impact Statement. Typically, conservation plans involve The federal wildlife agencies have a special landowners voluntarily seeking authorization for category for Habitat Conservation Plans that activities that would otherwise be prohibited are limited to very low effects on protected under Section 9. Because the process is species. “Low-effect” HCPs involve only applicant-driven, there are fewer complaints “minor or negligible” effects on species and from private landowners regarding governmental other environmental resources. Such Plans actions that could be interpreted as a “taking of property” warranting compensation. have a less than significant effect on the environment. Therefore they qualify for a But the takings issue may arise in some cases, categorical exclusion from the requirement when a local agency imposes a moratorium, to prepare an Environmental Assessment or designates certain lands as avoidance areas in Environmental Impact Statement. Habitat Conservation Plans, or denies development applications because of potential Low-effect HCPs require notice in the species impacts. In addition, an applicant for take Federal Register and a 30-day period for authorization could allege a regulatory taking public comment. However, the federal when unacceptable mitigation fees or land dedications for habitat are imposed or when the wildlife agencies need not respond to public application for take is denied. comments or prepare an Environmental Assessment or Environmental Impact These claims will need to be judged on a case- Statement. The federal wildlife agencies by-case basis. In most cases, the land will retain must prepare documentary support for the some underlying use and value, and it will be decision to exclude issuance of the Permit difficult for the landowner to sustain a successful from environmental revie w. They must also claim. In any case, its usually a good idea to take issue an Environmental Action such concerns into account at the beginning of a Memorandum that serves as a record of regulatory process, because even successfully compliance with NEPA. This approach to defending against such a claim can be exp ensive NEPA compliance is not usually and time consuming. recommended. Categorical exclusions For more information about takings, see should not be used where there is a potential www.ilsg.org/takings. for any significant effect on the human

9 16 U.S.C. 1539(c)

9 GUIDE TO HABITAT CONSERVATION PLANNING FEDERAL ENDANGERED SPECIES ACT environment (e.g., traffic, noise, air quality, regional HCPs, the federal wildlife agencies cultural resources). Very few HCPs are encourage public participation to be initiated determined to be “low effect.” well before this time. Since regional HCPs require an Environmental Impact Statement, All other Habitat Conservation Plans are the public becomes involved early in the subject to evaluation and public comment process. under NEPA. Before preparing an Environmental Impact Statement, the federal With few exceptions, the federal wildlife wildlife agencies publish a Notice of Intent agencies require a 60-day public comment in the Federal Register. They must allow the period on draft HCPs with Environmental public to comment either at a public hearing Assessments and a 90-day public comment or in writing. As a result of a federal court period for draft HCPs with Environmental decision (see sidebar “Court Invalidates the Impact Statements. Natomas Basin HCP” in Chapter 7), the U.S. Fish and Wildlife Service requires that an Before issuing an Incidental Take Permit, Environmental Impact Statement be the federal wildlife agencies must make the prepared for all large, complex, or following findings:10 controversial Habitat Conservation Plans in · the taking is incidental to an otherwise California. lawful activity; Phase 2: Permit Processing · impacts are monitored, minimized, and A complete permit application package mitigated to the maximum extent includes a permit application form (provided practicable; in Appendix H), a $25 application fee, a · procedures are provided to deal with draft Habitat Conservation Plan, a draft unforeseen circumstances; NEPA document, and an optional Implementation Agreement. · adequate funds exist to implement the Habitat Conservation Plan; and Incidental Take Permit applications · the taking will not appreciably reduce submitted to the U.S. Fish and Wildlife the likelihood of the survival and Service are sent to the Regional Director. recovery of the species in the wild. Applications submitted to NOAA Fisheries are sent to the Assistant Administrator. The In addition, the federal wildlife agencies permit-processing phase begins with: must determine whether issuing an Incidental Take Permit could jeopardize the · review of the permit application by the continued existence of the species. This appropriate federal wildlife agency; determination includes an analysis of direct, · publication of a notice in the Federal indirect, and cumulative effects on Register stating that the permit threatened and endangered fish, wildlife, application, draft Habitat Conservation plants, and critical habitat pursuant to Plan, and draft National Environmental Section 7 of the federal ESA. This process is Policy Act document are available for often called an internal Section 7 public review; and consultation because the wildlife agencies consult with themselves. The federal · initiation of internal consultation within wildlife agencies will not grant an Incidental the appropriate federal wildlife agencies Take Permit if the issuance of the permit concerning their compliance with will jeopardize a threatened or endangered federal ESA requirements. species or adversely modify critical habitat. The Federal Register notice initiates the Although Incidental Take Permits are not NEPA public review process. For large 10 16 U.S.C. § 1539(2)(2)(B).

10 GUIDE TO HABITAT CONSERVATION PLANNING FEDERAL ENDANGERED SPECIES ACT required to include listed plants (because the take more than 12 months to process. These prohibitions of the federal ESA do not apply timelines do not include the time it takes to to plants where there is no federal land, develop the public draft HCP. funding, or authorization), in practice Habitat Conservation Plans often include The permit-processing phase ends with the plants because listed plants must be following documents: considered in the internal Section 7 · Biological Opinion; consultation. · Federal ESA-required findings; If the federal wildlife agencies find that the Habitat Conservation Plan does not comply · Finding of No Significant Impact or with the issuance criteria under the federal Record of Decision ESA or other federal regulations, the permit · Implementation Agreement (if will be denied. Applicants are notified in necessary); and writing of the reasons for the denial, and may request reconsideration of the permit · Incidental Take Permit. issuance by the Deputy Regional Director. If the request for reconsideration is denied, Phase 3: Implementation and the applicants can appeal to the Regional Post-Permit-Issuance Phase Director. The federal wildlife agencies publish a notice of the decision to issue an Incidental The federal ESA has no timelines for permit Take Permit in the Federal Register. The processing. The Habitat Conservation applicant is then responsible for Planning Handbook outlines informal implementing the Habitat Conservation permit processing timelines. These timelines Plan. This responsibility includes were amended in the Five-Point Policy. monitoring the levels of take, funding the Permit processing times are defined as the HCP, and implementing and complying with period from receipt of an application to the all measures identified in the HCP, permit issuance of the Incidental Take Permit. The conditions, and Implementation Agreement. timelines include required Federal Register The federal wildlife agencies are responsible notifications and public comment periods. for monitoring compliance with the permit The time required to process the permit conditions. varies according to the number of species, the size of the planning area, and the level of For small project HCPs, the post-permit- impact resulting from the proposed issuance phase may take no longer than the activities. Another variable on permit time necessary to construct the project and processing time is the availability of federal install mitigation measures. Mitigation wildlife agency staff. measure may include habitat replacement. For large regional HCPs, the post-permit- According to the Handbook and the Five- issuance phase may extend for the life of a Point Policy, permit processing time for a multi-year or multi-decade permit. If low-effect HCP is less than 3 months. For a conservation areas are established, they Habitat Conservation Plan requiring the typically must be managed in perpetuity. preparation of an Environmental Assessment and Finding of No Significant Impact, the NO SURPRISES RULE target time frame is 4–6 months. For a Habitat Conservation Plan requiring an The “no surprises rule” is a great advantage Environmental Impact Statement and to Incidental Take Permit holders.11 The rule Record of Decision, the target time frame is less than 12 months. Large regional HCPs 11 63 Fed. Reg. 35 (1998) (amending 50 C.F.R. with Environmental Impact Statements often 17.22(b)(5), 17.32(b)(5), and 222.307(g)).

11 GUIDE TO HABITAT CONSERVATION PLANNING FEDERAL ENDANGERED SPECIES ACT states that, unle ss the actions by the permit surprises rule. However, the federal wildlife holder would result in jeopardy (see below), agencies have reserved the right to amend or permit holders are not required to provide revoke any Incidental Take Permit under the remedial mitigation measures beyond those “permit revocation rule” if the permitted already identified in the Habitat activity would be inconsistent with the no Conservation Plan to address “unforeseen jeopardy issuance criteria. circumstances.” Remedial measures are required, however, for “changed In December 2003, a federal judge circumstances” identified in the plan. remanded the no surprises rule and vacated and remanded the permit revocation rule Changed circumstances are defined as (see discussion in “Update: Courts weigh in changes affecting the species or geographic on no surprises assurances” sidebar on the area covered in a Habitat Conservation Plan following page). that can be reasonably anticipated by plan proponents and the federal wildlife agencies. Examples include new species listings, fire, flood, or other foreseeable natural catastrophic event. In the event of “unforeseen circumstances,” permit holders are not required to provide remedial measures that would require commitment of additional land, water or financial compensation or restrictions on the use of land, water or other natural resources. However, if unforeseen circumstances would result in jeopardy, the permit could be revoked (see below).

Unforeseen circumstances are defined as changes affecting species or geographic area covered in a Habitat Conservation Plan that could not have been reasonably anticipated by plan developers and the federal wildlife agencies and that result in substantial adverse change in the status of a covered species. The federal wildlife agencies have the burden of demonstrating that unforeseen circumstances exist.

The Habitat Conservation Plan’s adaptive management program addresses changed circumstances and remedial measures for which the permit holder is responsible. The permit holder is not responsible for implementing remedial measures to address changed circumstances that are not described in the Habitat Conservation Plan (these are treated as unforeseen circumstances). This assurance and the ability to include non-listed species in a Habitat Conservation Plan come from the no

12 GUIDE TO HABITAT CONSERVATION PLANNING FEDERAL ENDANGERED SPECIES ACT

UPDATE: COURTS WEIGH IN ON NO SURPRISES ASSURANCES

In 1998, environmental groups—led by the Spirit of open mind required by the governing authorities.” the Sage Council—filed suit alleging that the “No The judge also found that the No Surprises rule is Surprises Rule” precluded the federal wildlife “intertwined” with the Permit Revocation Rule, so agencies from making changes to incidental take the federal wildlife agencies must also go through permits that may be necessary to ensure the survival formal rulemaking again for No Surprises. or recovery of listed species. The lawsuit also claimed that the wildlife agencies inadequately Unlike the Permit Revocation Rule, however, the considered or responded to public comments during No Surprises Rule remains in effects while this new rulemaking. This lawsuit was later amended to rulemaking occurs. With a 9-year track record (No include an additional challenge to the Permit Surprises was first issued as policy in 1994), No Revocation Rule, which was released without public Surprises is expected to generate much more public review in June 1999. The Permit Revocation Rule interest now than it did in 1997 when public amended No Surprises and clarified when incidental comment first occurred. The federal wildlife take permits could be revoked. agencies will likely begin this new rulemaking procedure in 2004. It is unclear what affect, if any, In December 2003, the federal district found in the procedure will have on the substance of the No favor of the environmental group plaintiffs. The Surprises policy. judge vacated the Permit Revocation Rule, finding that the rule “…was promulgated in violation of the In January 2004, the Director of the U.S. Fish and [Administrative Procedures Act]’s notice and Wildlife Service released a memorandum stating comment requirements…” The federal wildlife that the incidental take permits would continue to be agencies were required to reconsider the rule in the issued with assurances under the existing No public arena and “…truly begin anew the APA Surprises Rule pending the release of new mandated notice and comment procedures, with the regulations.

13 ESA differs from the federal ESA in important ways. Under the California ESA, Chapter III it is the policy of the State to conserve, protect, restore, and enhance threatened and endangered species and their habitat. California Endangered As of October 2003, there were a total of Species Laws 149 state- and federally listed threatened and endangered fish and wildlife species in California. Of these, 72 species are listed only under the federal ESA, 29 are listed only under the California ESA, and 48 are listed under both. There are 215 state- and federally listed plant species in California. Of these, 62 are listed only under the federal ESA, 30 are listed only under the California The California Fish and Game Code ESA, and 123 are listed under both. There contains a number of laws that provide are an additional 67 plant species listed as protection for rare, threatened, and rare under the NPPA. The names of animals endangered species. The California ESA is and plant that are listed as endangered, the primary state law that protects threatened threatened, and rare in California are and endangered species (the entire text of provided in Appendix I. this Act is provided in Appendix B). The Native Plant Protection Act1 (NPPA) Definition of Take provides additional protection of plant The California ESA prohibits the take of species not listed under the California ESA. endangered, threatened, and candidate In addition, the Natural Community species without specific authorization from Conservation Planning Act2 provides a the California Department of Fish and method for conserving species on a large Game. The California definition of “take” geographic scale and obtaining take differs from the federal definition. Under the authorization (the entire text of the NCCPA California ESA, take “means hunt, pursue, is provided in Appendix C). Various other catch, capture, or kill, or attempt to hunt, sections of the California Fish and Game pursue, catch, capture, or kill.”3 Code provide protection for specific species of wildlife, including some designated as Unlike the federal ESA, this definition does “fully protected species.” not include the terms “harass” and “harm.” The federal ESA uses “harm” to include CALIFORNIA ENDANGERED habitat modification in the definition of take. SPECIES ACT In general, the California definition of take includes only acts that cause the death of a The California ESA generally parallels the protected species. The definition does not federal ESA in providing protection to state- include indirect harm or harassment. In listed threatened or endangered species. It some cases, habitat modification may be has provisions for listing species, considered take under the federal ESA, but prohibitions against take, and means for not under the California ESA. Table III-1 authorizing take of protected species. provides a general comparison of the However, each component of the California California and federal ESAs.

1 Cal. Fish & Game Code §§ 1900 and following.

2 Cal. Fish & Game Code §§ 2800 and following. 3 Cal. Fish & Game Code § 86. GUIDE TO HABITAT CONSERVATION PLANNING CALIFORNIA ENDANGERED SPECIES LAWS

Incidental Take Permits California Environmental Quality Act The California ESA authorizes the As a discretionary action by a state agency, Department of Fish and Game to issue a Section 2081 permit requires compliance permits for the incidental take of listed with CEQA. CEQA requires public agencies species. These are sometimes referred to as to analyze and minimize the effects of their Section 2081 permits after the authorizing actions on the environment. The Department section of the statute.4 California’s of Fish and Game must comply with CEQA Incidental Take Permits are similar to those when it issues and oversees implementation issued under the federal ESA. To obtain take of an Incidental Take Permit, because such authorization, the permit applicant must issuance is a discretionary action by a state submit a detailed project description agency. CEQA requires a lead agency to defining the geographic scope, proposed complete an Initial Study and prepare either project actions, and potential effects of the a mitigated negative declaration or action on state-listed species. The Environmental Impact Report, in Department of Fish and Game must make coordination with all responsible agencies. the following findings before issuing an Incidental Take Permit. Under Department of Fish and Game regulations, there are two pathways for · Take is incidental to otherwise lawful CEQA compliance when obtaining an activities. Incidental Take Permit (Figure III-1). When · Impacts of take on species have been the Department of Fish and Game is the lead minimized and fully mitigated. agency, the Incidental Take Permit process has been certifie d by the California · The permit is consistent with Resources Agency as equivalent to an Department of Fish and Game recovery Environmental Impact Report. Therefore, programs. the typical CEQA process is incorporated · The permit applicant has ensured into the Incidental Take Permit process and adequate funding to implement the separate CEQA documentation is not mitigation and monitoring measures. required.

· The actions taken under the permit will When another state or local agency is the not jeopardize the continued existence lead agency, the Department of Fish and of the species. Game is a “responsible agency” under The mitigation measures required to meet CEQA. In this instance, the Department of the standard of the Incidental Take Permit Fish and Game will not issue an Incidental must be roughly proportional to the Take Permit unless the lead agency prepares authorized impacts on affected species.5 a CEQA compliance document for the These measures must maintain the permit project. applicant’s project objectives to the greatest extent possible. The requirement that the Jointly Protected Species impacts of take be “fully” mitigated differs For proposed projects that may result in take from the federal ESA’s requirement that of species that are protected by both the impacts be minimized and mitigated to the federal ESA and the California ESA, “maximum extent practicable.” compliance with the California ESA can be achieved through the federal Formal

4 Cal. Fish & Game Code § 2081(b). 5 Cal. Fish & Game Code § 2081.

15 GUIDE TO HABITAT CONSERVATION PLANNING CALIFORNIA ENDANGERED SPECIES LAWS

TABLE III-1. COMPARISON OF CALIFORNIA AND FEDERAL ESA

CALIFORNIA ESA FEDERAL ESA Scope of Take Hunting, pursuing, catching, capturing, and Harassing, harming, pursuing, hunting, shooting, Prohibition killing individuals (and attempts to do so). wounding, killing, trapping, capturing, and collecting individuals (and attempts to do so) Habitat Habitat not necessarily protected. Habitat Habitat protected under “harm” definition if Protection removal prohibited if it is proximate cause of death or injury results. Harassment prohibited death. under “take” definition where significant disruption of normal behavioral patterns results in injury. Threatened Same prohibitions for threatened and endangered All endangered species protected. Section 4(d) Species species. rules allow for modified prohibitions for threatened species. Candidate Protection of candidate species. No protection of proposed species Species Take Section 2081 incidental take permit or Section Section 10 incidental take permit for non-federal Authorization 2080.1, species also federally listed and federal entities and Section 7 incidental take statement authorization is received. for federal agencies. Governmental No separate state agency consultation process. Federal agency consultation process under Compliance Section 7. Plants Plants somewhat protected under NPPA/CESA. Plants protected only where federal action Rare plants protected under NPPA. Specific involved or a violation of state law occurs. protection and exemptions under NPPA and CESA unclear for threatened and endangered plants. Responsible DFG authority over wildlife, fish, and plants. U.S. Fish and Wildlife Service authority over Agency wildlife (except some marine mammals), freshwater fish, and plants. NOAA Fisheries authority over marine species. Environmental Section 2081 permit decision triggers need to Section 10 permit decision triggers need to Review comply with CEQA. Section 2081 permitting is comply with NEPA. U.S. Fish and Wildlife a “CEQA equivalent” program if DFG is lead Service or NOAA Fisheries is lead agency. agency.

Consultation or Incidental Take Permit draft Habitat Conservation Plan to the (Sections 7 or 10) process.6 This approach Department of Fish and Game accompanied requires the applicant to consult with by a letter asking the Department of Fish Department of Fish and Game staff during and Game to concur with the final decision the development of the Habitat Conservation of the reviewing federal wildlife agency Plan (or Section 7 biological assessment) (usually the U.S. Fish and Wildlife Service about appropriate mitigation and or, in certain cases, NOAA Fisherie s). minimization measures. Once the Department of Fish and Game Once the federal wildlife agencies and the concurs, the applicant finalizes the HCP and Department of Fish and Game agree on provides the Department of Fish and Game mitigation measures, the applicant submits a with a copy of the federal Incidental Take Permit. The Department of Fish and Game

6 See Cal. Fish & Game Code § 2080.1 publishes a notice in the California

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17 GUIDE TO HABITAT CONSERVATION PLANNING CALIFORNIA ENDANGERED SPECIES LAWS

Regulatory Notice Register. The notice take several “specified birds” (osprey and announces the applicant’s intent to use any species of egret).7 federal take authorization for jointly protected species. The Department of Fish California also identifies 37 species of and Game makes a final determination on mammals, birds, reptiles, amphibians, and the consistency of the Habitat Conservation fish as “fully protected.”8 Take of these Plan with the California ESA within 30 species is prohibited and may not be days. Upon receiving Department of Fish authorized by the Department of Fish and and Game approval, the applicant receives Game except for scientific purposes. No state authorization for the incidental take of permits may be issued to take any fully the jointly protected species. protected species. The same definition of “take” that is used under the California ESA NATIVE PLANT PROTECTION ACT applies here. Therefore, if a proposed project may result in the take (hunt, pursue, catch, The Native Plant Protection Act, passed in capture, or kill) of any fully protected 1977, protects plants that are designated as species, there is no procedure for which to rare or endangered. With the passage of the receive take authorization. All but four of California ESA in 1984, endangered plants the fully protected species are also listed protected under the NPPA were under the California ESA. (A list of all fully “grandfathered” into the California ESA and protected species is provided in Table III-2). thus treated as any other endangered plant species. Plants listed as “rare” under the While many species have been fully Native Plant Protection Act, however, protected for more than 30 years, the receive no protection under the California Department of Fish and Game did not ESA. usually recognize the stringency of these provisions until the mid-1990s. Since that Plants are no longer proposed for listing time, however, fully protected species under the NPPA. However, it continues to statutes have received a great deal of protect 67 plant species designated as “rare” attention and withstood several Legislative prior to 1984 (five of these rare plants have proposals to revise or repeal the designation. subsequently been listed as either threatened or endangered under the California ESA). The presence of fully protected species in a Although the NPPA includes a provision project area requires additional coordination that prohibits take of protected plants, it with the Department of Fish and Game contains so many exceptions that it is beyond compliance with the California ESA. unclear what protection, if any, is actually Such coordination includes identifying afforded to plants listed as rare. measures that will ensure that no take (as defined under California law)9 of fully FULLY PROTECTED SPECIES AND protected species results from the proposed project, even if the federal wildlife agencies OTHER PROTECTED WILDLIFE would otherwise permit an incidental take In addition to the protection of species listed under the federal ESA. The slight difference as endangered, threatened, and rare, between federal and state definitions of California also includes specific protections “take” may allow the federal wildlife for a variety of other species. For example, agencies to authorize take for harassment or unless authorized by the Department of Fish harm under the federal ESA, while take as and Game, it is unlawful to take the nest or eggs of any bird; it is unlawful to take any 7 Cal. Fish & Game §§ 3503, 3503.5, 3505 birds of prey (i.e., eagles, hawks, falcons, 8 Cal. Fish & Game Code §§ 3511, 4700, 5050 and vultures, and owls); and it is unlawful to 5515. 9 CFGC § 86

18 GUIDE TO HABITAT CONSERVATION PLANNING CALIFORNIA ENDANGERED SPECIES LAWS

defined under the California Fish and Game NCCP. Required components of the Code is avoided. Planning Agreement are listed below.

Measures to avoid take may include · Identification of geographic scope of the monitoring construction in habitat of fully planning area. protected species, keeping all construction · Potential covered species. activities out of the habitat, and avoiding construction activities during certain times · Preliminary conservation objectives. (for example, nesting periods). While this · Process for independent scientific input. coordination does not result in the issuance of a formal authorization or permit from the · Means for coordination with federal Department of Fish and Game, the measures wildlife agencies. are binding because take of fully protected · Encouragement of concurrent wetlands species cannot be authorized. planning.

In addition to fully protected species, there · Interim process for project review are other species specifically identified and during plan development. protected in the California Fish and Game · Process for public participation. Code. These species include mountain lion10 and white shark.11 Take of these species is The Planning Agreement is a contract. The allowed only in very specific instances. draft Planning Agreement must be made available for a 21-day public review period. NATURAL COMMUNITY CONSERVATION PLANNING ACT Public Participation The NCCPA became effective in 2003, The Natural Community Conservation replacing the original law passed and signed Planning Act requires that the Department of by Governor Wilson in 1991. Like the old Fish and Game and plan participants law, the new law recognizes the need for establish a public participation process. All voluntary, broad-based planning to provide draft documents must be made available to effective protection of wildlife resources. the public for at least 60 days prior to their The key components for compliance with adoption. All documents must be made the NCCPA include a Planning Agreement, available at least 10 working days prior to public involvement, independent scientific public hearings. These include preliminary input, a Natural Community Conservation plans, maps, species lists, and other Plan document, an Implementation documents. Agreement, a Department of Fish and Game determination (findings), and CEQA The NCCP public participation process may compliance. proceed concurrently with the CEQA public review process. The public participation Planning Agreement process must include an outreach program that provides access to information for all Prior to development of the NCCP, plan persons interested in the plan. participants and the Department of Fish and

Game must develop a Planning Agreement. The agreement commits the parties to specific actions in the development of the

10 Cal. Fish & Game Code § 4800. 11 Cal. Fish & Game Code §§ 5517 and 8599.

19 GUIDE TO HABITAT CONSERVATION PLANNING CALIFORNIA ENDANGERED SPECIES LAWS

TABLE III-2. FULLY PROTECTED SPECIES UNDER THE CALIFORNIA FISH AND GAME CODE Birds · American peregrine falcon (Falco peregrinus anatum) (Section 3511) · Brown pelican (Pelecanus occidentalis) · California black rail (Laterallus jamaicensis coturniculus) · California clapper rail (Rallus longirostris obsoletus) · California condor (Gymnogyps californianus) · California least tern (Sterna albifrons browni) · Golden eagle (Aquila chrysaetos) · Greater sandhill crane (Grus canadensis tabida) · Light-footed clapper rail (Rallus longirostris levipes) · Southern bald eagle (Haliaeetus leucocephalus leucocephalus) · Trumpeter swan (Cygnus buccinator) · White-tailed kite (Elanus leucurus) · Yuma clapper rail (Rallus longirostris yumanensis)

Mammals · Morro Bay kangaroo rat (Dipodomys heermanni morroensis). (Section 4700) · Bighorn sheep (Ovis canadensis), (except Nelson bighorn sheep subspecies Ovis canadensis nelsoni) · Northern elephant seal (Mirounga angustirostris). · Guadalupe fur seal (Arctocephalus townsendi). · Ring-tailed cat (genus Bassariscus). · Pacific right whale (Eubalaena sieboldi). · Salt-marsh harvest mouse (Reithrodontomys raviventris). · Southern sea otter (Enhydra lutris nereis) · Wolverine (Gulo luscus).

Reptiles and · Blunt-nosed leopard lizard (Crotaphytus wislizenii silus) Amphibians · San Francisco garter snake (Thamnophis sirtalis tetrataenia) (Section 5050) · Santa Cruz long-toed salamander (Ambystoma macrodactylum croceum) · Limestone salamander (Hydromantes brunus) · Black toad (Bufo boreas exsul)

Fish · Colorado River squawfish [Colorado pikeminnow] (Ptychocheilus lucius) (Section 5515) · Thicktail chub (Gila crassicauda) · Mohave chub (Gila mohavensis) · Lost River sucker (Catostomus luxatus) · Modoc sucker (Catostomus microps) · Shortnose sucker (Chasmistes brevirostris) · Humpback sucker [Razorback sucker] (Xyrauchen texanus) · Owens River pupfish (Cyprinoden radiosus) · Unarmored threespine stickleback (Gasterosteus aculeatus williamsoni) · Rough sculpin (Cottus asperrimus)

20 GUIDE TO HABITAT CONSERVATION PLANNING CALIFORNIA ENDANGERED SPECIES LAWS

Department of Fish and Game Findings The Department of Fish and Game must establish a list of species authorized for take To approve a Natural Community and make specific findings identifying the Conservation Plan, the Department of Fish ecological rationale for including species in and Game must find that the Plan: the plan. · is consistent with the planning Implementation Agreement agreement; The NCCPA also requires preparation of an · protects habitat, natural communities, Implementation Agreement, a contract that and species diversity on a landscape or identifies the roles and responsibilities of all ecosystem level (through creation of parties during implementation of the Plan habitat reserves or “measures that and Permit. This IA must include: provide equivalent conservation of covered species”); · provisions for defining species coverage and conditions of coverage; · includes a reserve system and conservation measures that will: · provisions for establishing reserves or other conservation measures; - conserve ecological integrity of large habitat blocks, ecosystem · specific terms and conditions that, if functions, and biological diversity; violated, would result in permit revocation;12 - provide conservation of covered species in the plan area and linkages · plan amendment procedures; among reserves and with outside · provisions to ensure monitoring and areas; adaptive management are implemented; - support sustainable populations of · provisions for oversight of plan covered species; implementation; - provide a range of environmental · provisions for periodic reporting to gradients and habitat diversity to wildlife agencies and the public; support shifting species distribution; · adequate funding; and - sustain movement of species among reserves; · provisions to ensure that mitigation is roughly proportional in timing and · identifies activities allowed within extent to impacts on habitat and covered reserves; species. · includes specific conservation measures for covered species; Section 2835 Take Authorization · includes a monitoring program; Under the NCCPA, the Department of Fish and Game may provide take authorization · includes an adaptive management for the state-listed threatened and program; endangered species and other species that · includes a plan implementation schedule are not listed for which conservation and and landowner and participant management is provided for in the Natural obligations if schedule is not met; and Community Conservation Plan. These

· includes provisions to ensure adequate 12 funding to implement conservation These terms must include failure to provide adequate funding, failure to mitigate impacts on measures. species or habitat, changes in plan or projects without prior approval, and excessive take beyond that permitted.

21 GUIDE TO HABITAT CONSERVATION PLANNING CALIFORNIA ENDANGERED SPECIES LAWS

permits are often referred to as Section 2835 financial compensation or additional Take Permits. Under the California ESA, the restrictions on use of land, water, or other terms “conserve,” “conserving,” and natural resources shall not be required “conservation” are defined to mean the use without the consent of plan participants” in of all methods and procedures necessary to cases of unforeseen circumstances. 14 These bring endangered or threatened species to assurances are not available under California the point at which the measures provided ESA Section 2081 permits. under the California ESA are no longer necessary. In other words, the requirement NCCP AND HCP COMPARISON to conserve species means that a Natural There are substantial similarities between Community Conservation Plan must the federally required Habitat Conservation contribute to the recovery of covered Plan and the state required Natural species. Where the range of a covered Community Conservation Plan. Many of the species is wholly or mostly included within definitions of terms are similar or identical, the planning area, then recovery of the and many of the required elements of the species would be a required Plan goal. Plans are the same. Indeed, joint Habitat

Conservation Plan/Natural Community

Conservation Plan (HCP/NCCP) documents Permit Revocation are encouraged. Natural Community The NCCPA requires mandatory revocation Conservation Plans, however, have several of a Section 2835 Take Permit if the plan additional requirements that are not required participants do not maintain proportionality for Habitat Conservation Plans. between take and mitigation and do not, within 45 days, remedy this condition or NCCPs must contribute to the recovery of develop a plan with the Department of Fish covered species. HCPs must meet the and Game to provide remedy. The somewhat lesser standard of minimizing and Department of Fish and Game must also mitigating impacts to the maximum extent revoke a Section 2835 Take Permit if practicable. Section 2081 Incidental Take continued take would result in jeopardy to a Permits under California ESA require that species. impacts on protected species be fully mitigated; permit holders need not Assurances contribute to recovery. In cases where a Habitat Conservation Plan covers all or most Under the NCCPA, the Department of Fish of a species’ range, the federal wildlife and Game may provide assurances to plan agencies may require a recovery standard. participants, but the level of these assurances must be tied to consideration of NCCPs must provide for the conservation of the level of knowledge and data on covered natural communities, in addition to species and natural communities and the size conservation of species and their specific and duration of the Plan. habitat. Moreover, the Plan must conserve

the ecological integrity of large habitat The NCCPA provides a no surprises blocks, ecosystem functions, and biological assurance in the case of unforeseen diversity. In many instances, meeting these circumstances, which include changes “that requirements will require more habitat could not reasonably have been anticipated conservation than is necessary to meet the at the time of plan development, and that standards for species mitigation under a would result in a substantial adverse change Habitat Conservation Plan or a California in the status of one or more covered 13 ESA Section 2081 permit. species.” Additional “land, water, or

13 Cal. Fish & Game Code § 2805(j). 14 Cal. Fish & Game Code § 2820(f)(2).

22 GUIDE TO HABITAT CONSERVATION PLANNING CALIFORNIA ENDANGERED SPECIES LAWS

The terms “ecological integrity,” “ecosystem function,” and “biological diversity” are not defined in the Natural Community Conservation Planning Act. These terms are ecological terms with various definitions in the scientific community. Since the terms remain undefined, it is likely that each new NCCP will need to define them and develop methods for the measurement of the ecological parameters they represent, in accordance with the ecological conditions of the specific planning area.

The NCCPA requires a planning agreement prior to development of the Natural Community Plan. HCPs are not subject to such a requirement.

HCPs are required for federal authorization of take, regardless of the size of the project or level of take. They may be developed for very small projects or regional multi-species programs. Natural Community Conservation Plans are prepared to encompass landscapes or ecosystems. Where a project is too small, the California ESA Section 2081 Incidental Take Permit is the appropriate mechanism for compliance with state law. The Department of Fish and Game has not identified a minimum size for Natural Community Conservation Plans. The scale of natural communities and ecological processes is a determining factor, but no precedent has been set for minimum size criteria.

23 species issues. If a property has not already been purchased, planning should begin at Chapter IV the project site selection stage. Project proponents should be proactive and anticipate endangered species issues and Project Planning and needs.

Compliance under the Do not expect the federal wildlife agencies Federal and California or the California Department of Fish and Game to resolve your problems. The job of Endangered Species Acts these agencies is to provide the applicant with an understanding of regulatory requirements, recommend mitigation measures, and review the permit application. Agency staff, however, are not motivated nor do they have the time to specifically

address the applicant’s project issues.

Despite the chronic staff shortage at the federal and state wildlife agencies, project proponents should make every effort to Obtaining incidental take authorization maintain continuous coordination with these under both the federal (Section 10) and agencies. All agreements made with the California (Section 2081) Endangered wildlife agencies during development of the Species Acts requires development of permit application should be documented in mitigation measures for impacts on listed writing, especially since staff turnover at the species that would result from projects wildlife agencies may be frequent. In all proposed by state agencies, local agencies, instances, project applicants should be and private individuals and organizations. honest and forthright in addressing Because of the complexity of the regulations endangered species issues and compliance. and the options available for compliance, it Negotiations with wildlife agencies are is important for project proponents to expected, but these should always be develop a clear regulatory compliance conducted professionally and in good faith. strategy. Projects should be planned around this strategy. KEY STEPS IN PROJECT PLANNING

This chapter provides recommendations on Permit applicants should clearly articulate best approaches to project planning and their project goals and objectives, such that regulatory compliance for endangered alternative approaches can be identified and species under the federal and California assessed. Potential endangered species ESAs for individual projects of small or issues should be identified for all potential moderate size with single applicants. The project sites based on existing information recommended approach to large project and preliminary surveys. Listed species that planning and regional Habitat Conservation may be affected by the project should be Plans is examined in Chapters V and VI. identified and an opportunities and constraints analysis conducted. GENERAL RECOMMENDATIONS Once a project site is selected from site Whatever the proposed project, permit alternatives, onsite alternatives should be applicants should start early in the planning developed on the basis of the opportunities process to identify potential endangered and constraints analysis. The appropriate wildlife agency staff should be contacted GUIDE TO HABITAT CONSERVATION PROJECT PLANNING AND COMPLIANCE early in the process for their input. Project · California species of special concern applicants should assess their regulatory (Department of Fish and Game). requirements and look for opportunities to avoid take and hence to avoid the need for · Species that meet the definition of rare, federal or state permits. If take is not threatened, or endangered in the State avoidable, those species requiring permits CEQA Guidelines. should be identified, and specific biological · Fully protected species under the goals and objectives and mitigation California Fish and Game Code. measures should be developed for each species. · Migratory birds.

Applicants should consider the following STRATEGY FOR COMPLIANCE types of special-status plant species that Permit applicants should develop their could be protected under one or more laws. regulatory strategy early. In some instances, · Federal ESA–listed threatened and especially for larger projects, there may be endangered. multiple regulations affording protection to species that should be considered in project · California ESA–listed threatened and planning. Applicants should consider endangered. addressing all species, in addition to state- · Federal ESA proposed and candidates and federally listed threatened and for listing. endangered species, that could be protected by laws such as: · California ESA candidates. · California Native Plant Protection Act, · Native Plant Protection Act listed rare. · California Fish and Game Code (various · Species that meet the definition of rare, sections), threatened, or endangered in the State CEQA Guidelines (often identified as · Fish and Wildlife Coordination Act, plants on the California Native Plant · Migratory Bird Treaty Act, Society’s Lists 1A, 1B, and 2 and, in some cases, on Lists 3 and 4) · National Environmental Policy Act, · California Environmental Quality Act, Local and state agencies will likely be and involved in a CEQA process when endangered species issues arise under both · Local ordinances the federal and California ESAs. CEQA lead agencies must incorporate the California Applicants should consider the following ESA into the CEQA process; it is also types of special-status wildlife species that recommended that preparation of a Habitat could be protected under one or more laws. Conservation Plan under the federal ESA be conducted in parallel with CEQA document · Federal ESA–listed threatened and preparation. In cases where the project endangered. proponent is a private entity, that private · California ESA–listed threatened and entity is responsible for obtaining Incidental endangered. Take Permits. In cases where there is a joint CEQA/NEPA process with a federal lead · Federal ESA proposed and candidates agency (other than the U.S. Fish and for listing. Wildlife Service), federal ESA compliance · California ESA candidates. will be accomplished through the Section 7 federal consultation process between the

25 GUIDE TO HABITAT CONSERVATION PROJECT PLANNING AND COMPLIANCE federal lead agency and the federal wildlife For many species, the federal wildlife agency. agencies and California Department of Fish and Game have detailed survey protocols Private individuals and corporations may that may require special timing, special have federal and California ESA issues equipment, repeated site visits, and specially without any other authorizations triggering permitted biologists. NEPA or CEQA. In these instances the private entity negotiates directly with the Take may be required in order to conduct federal wildlife agency, and the federal protocol-level surveys for some listed wildlife agency is the lead NEPA agency. wildlife species. For example, trapping for For the California ESA, the Department of small mammals (i.e., trapping), calling for Fish and Game will be the lead CEQA birds (i.e., harassment), and dip-netting for agency on issuance of the 2081 permit if a fairy shrimp (i.e., capture) are survey local or other state agency does not have a methods that require take. To conduct these broader role or authority over the project. types of surveys, biologists must hold Scientific Take Permits under the federal In cases in which all species potentially ESA1 and the California ESA2 that authorize affected by the project are jointly listed take of the specific listed species for under both the federal and California ESAs, scientific purposes. To conduct surveys the project proponent should investigate under a scientific take permit, biologists are with the Department of Fish and Game the typically required to report their findings to possibility of using the California ESA the federal wildlife agencies and the Section 2080.1 process for take Department of Fish and Game. authorization (see discussion in Chapter III). Many of California’s rare plants are annual SPECIES SURVEY CONSIDERATIONS species, appearing only for short periods of the year. These plant species spend the Prior to conducting a detailed and labor- remainder of the year as dormant seeds, intensive species survey, project proponents when their presence cannot be determined. should conduct reconnaissance-level surveys During drought years they may not appear at for occurrences of listed species and their all. In such years it may not be possible to habitat, at least at locations that may support determine that these species are absent, suitable habitat. A great deal of information where suitable habitat is present. can be gained at much lower cost with these types of surveys. Constraint and opportunity In some instances, it is prudent to assume maps can be prepared and analyses that listed species are present in or would conducted using these data to determine use suitable habitat identified at a project potential project sites and project site. Assuming species’ presence can save configuration on the selected site. Minor money and time, that would otherwise be design flaws or fatal flaws may be identified spent conducting detailed species surveys, at this stage, prior to the commitment of and hence may allow the project to be large amounts of funds for project design. constructed sooner and sometimes at less cost. In many cases where suitable habitat is Many species are only present or identifiable present at a project site that is within the at certain times of year (for example, species’ range, the wildlife agencies will migratory wildlife, annual plants) and have require species surveys or will assume that very specific survey timing requirements. impacts on this habitat would result in take Project applicants need to plan for these surveys well ahead of time; otherwise, 1 Under federal ESA Section 10(a)(1)(A). opportunities may be missed and the project planning process delayed for a year or more. 2 Under California ESA Section 2081(a).

26 GUIDE TO HABITAT CONSERVATION PROJECT PLANNING AND COMPLIANCE of the species regardless of the results of discussion in Chapter II). Hence, it is species surveys. recommended that indirect and cumulative impacts be addressed in Habitat Project proponents should coordinate with Conservation Plans. the federal wildlife agencies and the Department of Fish and Game to reach Considerations for Impacts on Wildlife agreement on the validity of survey methods Wildlife species have specific ecological and final determination on presence/absence requirements that need to be considered in of species and habitat. impact analyses. Examples of some such

considerations are listed below. Project Alternatives · Large territories or home ranges, Based on the results of species and habitat surveys, alternative project designs should requiring large habitat areas. be investigated to avoid and minimize · Need for different habitats during impacts on listed species. The federal ESA different life stages. requires that at least one alternative should avoid all take of listed species and that the · Special movement routes for dispersal project proponent identify why this or migration. alternative is not practicable. Cost may be · High susceptibility to indirect effects used as a criterion for practicability. from such things as lighting or noise.

It is recommended that alternatives Mechanisms for direct impacts on wildlife developed for the NEPA and CEQA process include: include alternatives that address ESA · direct mortality; requirements. Coordination with the federal wildlife agencies and the Department of Fish · harassment; and and Game is recommended at this stage to · removal of important habitat (e.g., for ensure that the range of alternatives included nesting, denning, foraging, movement, in the analysis is sufficient to meet hibernating, aestivating, cover). endangered species issues. Indirect impacts reduce survival or reproduction and happen later in time, often IMPACT ANALYSIS well after the project is completed. Examples of mechanisms for indirect Once a proposed project design has been impacts on wildlife include: developed, potential impacts on species can · noise; be assessed. An impact assessment methodology and method for quantifying · lighting; take should be developed and reviewed by · human activities; the federal wildlife agencies and the Department of Fish and Game for · degradation of habitat; appropriateness. The project impacts assessment should include evaluation of · predation by pets; direct, indirect, and cumulative impacts on · poisoning; each species. While federal ESA Section 10 does not specifically require that direct and · population isolation; and cumulative impacts be addressed in a · competition, predation, and parasitism Habitat Conservation Plan, the internal by introduced species. Section 7 consultation by the federal wildlife agency must address such impacts (see

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Considerations for Impacts on Plants · increased human contact (e.g., trampling Impact analyses for plants need to consider either of plants or near plants that population fluctuations. Annual plant compacts the soil and reduces water species populations may expand and infiltration and soil aeration); and contract from year to year due to climate · population isolation. patterns. The locations of plant populations in the survey year may not be representative Cumulative Impacts of where populations have occurred in the past or will occur in the future. Cumulative impacts on wildlife and plants result from the concurrent and continued Plants may be associated with animal loss of populations and habitat from other pollinators and seed dispersers. The projects and actions within the species’ ecological requirements and impacts on range. In addition, increasing isolation of these animal species need to be considered populations from each other and from other in impact assessments. Introduced species of areas of suitable habitat is an adverse animals may result in adverse affects on cumulative impact. Note that the federal endangered plants through browsing and ESA definition of cumulative impacts grazing, and introduced plants may differs from the NEPA and CEQA adversely affect endangered plants through definitions. Under federal ESA Section 7, competition for light, water, nutrients, and cumulative impacts are those effects that space. result only from other non-federal actions.

Mechanisms for direct impacts on plants MITIGATION PLANNING include: Every effort should be made to revise the · removal of plants or habitat by clearing, project design to avoid all impacts on listed filling, excavation, etc., within the species and eliminate the need for a Section “footprint” of the project; and 10 or Section 2081 Incidental Take Permit. · construction or postconstruction For many wildlife species, modification of “spillover activities” (e.g., vehicle the timing of construction and other project traffic, vehicle parking, storage sites, activities (such as avoiding nesting periods access roads, foot traffic, offsite or migration periods) can avoid harassment dumping) that result in removal or of wildlife in adjacent areas. crushing of plants and habitat. Planning for mitigation of impacts should be Examples of mechanisms for indirect based on the best available scientific and impacts on plants include: commercial information. For many species, little is known about the effectiveness of · increased erosion that undermines plant conservation measures. In these cases, an roots and reduces soil fertility; adaptive management approach will be · increased sedimentation that buries plant necessary. shoots; For impacts that cannot be avoided, · herbicide or fertilizer runoff; compensatory mitigation will most often be required. Compensatory mitigation typically · changes in hydrologic conditions that involves the acquisition, enhancement and result in more or less water than the restoration of habitat, or some combination plant can tolerate or a change in the thereof. Population enhancement actions or timing of water availability; · increased weed invasion;

28 GUIDE TO HABITAT CONSERVATION PROJECT PLANNING AND COMPLIANCE translocation of individuals3 may also be · Assurance that the project will not conducted. Depending on the size and jeopardize the continued existence of suitability of the project site, the any listed species. compensatory mitigation may be conducted on or off site. Decisions on the method of In most cases, NEPA and CEQA documents compensatory mitigation require will be necessary to comply with both the federal and California ESAs. It is coordination with the federal wildlife recommended that, when possible, agencies and the Department of Fish and mitigation measures for state- and federally Game. If the project site is within the service listed species be integrated with measures to area of a mitigation or conservation bank for comply with other laws such as Section 404 the affected species, such banks may be used of the Clean Water Act (protecting wetlands, for compensatory mitigation. streams, ponds, and lakes); Section 1602 of the California Fish and Game Code In all but the smallest projects a monitoring (protecting streams and lakes); and the program will be necessary. Monitoring may Migratory Bird Treaty Act (protecting be needed to determine that mitigation migratory birds). The biological resources measures have been implemented, that the protected under these laws often overlap, so project’s effect on species (the amount of coordinating mitigation planning among take) was as predicted in the Habitat Conservation Plan, and that mitigation these resources and laws will typically increase the efficiency of all of compliance measures have been effective. processes and reduce the cost of compliance.

PREPARATION OF ENVIRONMENTAL Implementation Agreement DOCUMENTS

Project proponents must ensure that all For projects with substantial effects on necessary documents are prepared and that species, an implementation agreement may the documents are adequate to meet federal be required. The IA is a legal contract and California ESA requirements. At a between the permit holder, the federal minimum, the Section 10 permit wildlife agencies, and the Department of application/Habitat Conservation Plan and Fish and Game that identifies the roles and the Section 2081 permit application/species responsibilities of each party in mitigation plan (typically the biological implementing the Habitat Conservation resources section of a CEQA Environmental Plan. Impact Report) must include the following. IMPLEMENTATION OF PROJECT, · Assessment of impacts (level of take). MITIGATION, AND MONITORING · Mitigation measures. Once an incidental take permit is issued by · Monitoring program (if necessary). the federal wildlife agencies and the · Assurance of funding (e.g., letter of Department of Fish and Game, the permit credit, bond, etc.). holder may begin to implement the HCP, California ESA mitigation, and the project · Analysis of alternatives to take as conditioned in the permit(s). Actual levels considered and reasons for rejection. of take that result should be documented using the methods specified in the permit. If construction occurs over a prolonged period, progress reports should be submitted 3 The translocation of plant populations is generally not accepted by federal and state wildlife agencies as a (annually or more frequently) to the federal mitigation measure because of the high failure rate of wildlife agencies and the Department of Fish this technique.

29 GUIDE TO HABITAT CONSERVATION PROJECT PLANNING AND COMPLIANCE and Game regarding impacts, mitigation measures, and changes in approach developed through adaptive management. A final report should be provided that describes the outcome for affected species relative to species goals set in the Habitat Conservation Plan.

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THE COMPONENTS OF REGIONAL HABITAT CONSERVATION Chapter V PLANNING

Successful regional habitat conservation Regional Habitat planning generally requires attention to the Conservation Planning: following five key components. · Biological science. Components of the · Land and water use planning. Planning Process · Regulatory compliance. · Economic analysis.

· Public involvement. For such planning processes to succeed, each component must receive ample attention during preparation of the Habitat The early 1990s saw the beginning of Conservation Plan/Natural Community regional habitat conservation planning as an Conservation Plan. (Figure V-2). alternative to project-by-project permit battles. Regional habitat planning bala nces BIOLOGICAL SCIENCE species conservation with economic growth over a large geographic area (usually tens or Regional plans should rely on the best hundreds of thousands of acres). Regional scientific and commercial1 information plans can address objectives beyond available. Physical and biological protection of threatened and endangered information is used to identify resources, species. These plans can also be used for the establish goals and objectives, analyze conservation of non-listed sensitive species, impacts, and develop conservation wetlands, biodiversity, watersheds, and measures. To support plan development, the ecosystems. This form of proactive planning scientific disciplines of conservation is in contrast to project-specific permitting biology, wildlife and fisheries ecology, plant that takes place “reactively” for proposed ecology, hydrology, soil science, geology, projects as described in Chapter IV. Many and others are combined with the applied regional plans have been completed or are in sciences of ecosystem restoration and preparation in California (Figure V-1). habitat management.

This chapter provides an overview of the The principles of conservation biology key components involved in developing provide the basis for design of an regional Habitat Conservation Plans and interconnected system of conservation areas. Natural Community Conservation Plans. These areas support the conservation of This chapter focuses on process; Chapter VI individual species, species diversity, and provides detail on the specific elements to overall ecosystem function. Conservation be included in these planning documents. areas are those lands used specifically to achieve conservation goals. They may

1 Commercial information typically applies only to species (e.g., fish) that are harvested for commercial purposes.

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Figure V-1. Regional HCPs and NCCPs in California Approved and in Development 2004

1 Pacific Lumber HCP* 13 Merced County NCCP/HCP 2 Mendocino Redwoods HCP 14 Fort Ord HCP/NCCP 3 Sutter/Yuba Hwy 70/99 HCP/NCCP 15 San Benito County HCP/NCCP 4 Natomas Basin HCP* 16 CALFED MSCS* (NCCP) 5 Placer Legacy Open Space and ( ) 1 Agricultural Conservation Program 17 San Luis Obispo County/ NCCP/HCP (Phase 1) Los Osos HCP 6 South Sacramento County HCP 18 Kern Valley Floor HCP 7 Solano County HCP 19 Metro Bakersfield HCP* 8 East Contra Costa County HCP/NCCP 20 West Mojave HCP 9 San Joaquin County MSHCOSP* 21 Palos Verde Penninsula NCCP (Multispecies Habitat Conservation 22 Central/Coastal and Open Space Plan) Orange County HCP/NCCP* 10 San Bruno Mountain HCP* 23 San Bernardino Valley-wide 11 Santa Clara County HCP/NCCP 3 MSHCP 2 12 City of Santa Cruz HCP 24 Lower Colorado River MSCP 25 Western Riverside County 31 5 HCP/NCCP 4 * Approved 26 Coachella Valley MSHCP/NCCP 27 Southern Orange County 6 HCP/NCCP 7 28 San Diego North County MSCP 8 79 29 San Diego MHCP* 30 San Diego MSCP* 31 Yolo County NCCP/HCP 10 11 13 12 16 261527 14

1319 1812 17 2014

2024

1723

2115 2216 1925 2621 Prepared by: 2718 2228 2923 3024

32 GUIDE TO HABITAT CONSERVATION PLANNING REGIONAL CONSERVATION PLANNING

include lands for the protection of existing and maximizes undisturbed internal habitat, restoration of new habitat, and habitat area. management of habitat for particular species requirements. · Edge Effects. Edge effects are the effects of adjacent land uses (e.g., agricultural The design of each conservation area must land, urban development, or rural take into account: development) on the conservation area. The need for “buffer” zones to reduce · Size. The size of conservation areas is those effects must be addressed. determined by biological goals. These goals are usually based on the size of the · Spatial Relationships. The design of the species’ range, the area necessary to conservation areas must address the support ecological functions and spatial relationships among conservation maintain species diversity, or a combination of these factors. areas. Biological connectivity (for species movement, migration, and gene

flow) among conservation areas is · Shape. The shape of conservation areas necessary to ensure that species will determines the ratio of perimeter to area. survive in the long term.

· The optimum shape limits contact with incompatible land uses on the perimeter

33 GUIDE TO HABITAT CONSERVATION REGIONAL CONSERVATION PLANNING

ADVANTAGES AND DISADVANTAGES OF REGIONAL HABITAT CONSERVATION PLANS

Regional habitat conservation planning is typically a proactive effort to combine the conservation of species and their habitats with land use planning for growth and development. The existing project-by-project permitting process typically remains an option within regional plan areas. There are advantages and disadvantages to the regional approach compared to the project-by-project approach.

Advantages Disadvantages

· More effective conservation of species, · Complex process that requires significant habitat, natural communities, and knowledge, foresight, and time. ecosystem processes. · Requires broad stakeholder participation and · Greater flexibility in determining location consensus. of conservation areas. · Requires strong, unbroken political support · Better integration with local land use from elected officials. planning processes. · Large up-front costs. · Completed plan adds predictability to · Benefits unrealized for years because of long development process and expedites approvals. time needed to develop plan and process permits. · Creates economies of scale: less costly per acre of development and per acre of habitat · Difficult to maintain momentum, consensus, preserved. and funding through completion of the plan. · Greater benefits when integrated with other state and federal requirements, such as wetland, stream, watershed conservation.

Effective conservation planning treats each Criteria used in establishing these species as unique and recognizes that requirements include the following. knowledge of all species is incomplete. Ecologists developing conservation plans · Specific Habitat Requirements. Specific are often hampered by limited data on habitat requirements are different for covered species. They must often depend on every species. For example, plans for knowledge of similar species to develop terrestrial wildlife usually address criteria for covered species with the breeding, foraging and resting habitat; expectation that adaptive management movement and migration routes; and during plan implementation will address interactions with predators, competitors, these uncertainties (see “Adaptive parasites, and diseases. Plans for fish Management Plan” in Chapter VI). species, on the other hand, often address feeding, spawning, and rearing habitat; specific conditions of water temperature, Species-Specific Requirements volume, and flow dynamics; movement The conservation area system design should and migration routes; three-dimensional be based on the ecological requirements of physical structure (submerged logs and species covered by the regional habitat plan. rocks and shaded aquatic habitat); and

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interactions with predators, competitors, the natural pathways or restrictions to parasites, and diseases. For plant species the movement of genes over these requirements may include water, generations. Maintaining genetic temperature, and soil requirements; variation, the patterns of variation and slope, aspect, and elevation; flood scour, the pathways for gene flow within a fire, and wind-throw; beneficial species is an important goal for interactions with other species (e.g., conservation plans. pollinators, root fungi); and adverse interactions with other species (e.g., A key concept in conservation planning is grazers and browsers, competing plant that of the metapopulation. A species, insect herbivores, diseases). metapopulation is a collection of discrete local breeding populations connected by · Movement Capabilities. The movement migration and gene flow. While individual of species must be considered in populations within a metapopulation may conservation area design. The survival die out, individuals from other populations of some species depends on preservation in the metapopulation may recolonize of their migration routes. The extent to vacated areas and reestablish these which conservation areas must be populations. Thus, the metapopulation will physically connected depends on the persist over time, though populations within ability of species to overcome barriers. it may come and go. The movement of Barriers for some species are not individuals and genes among populations barriers for others. For example, a two- within a metapopulation and the viability of lane road may impair the movement of the metapopulation are important parameters reptiles, amphibians, and small to consider in conservation planning. mammals, but not birds. For long- distance flyers like ducks and geese, The use of independent scientific review whole cities may not pose obstacles to committees to ensure the quality of movement between habitat patches. biological data and analysis in the HCP/NCCP is discussed below under · Population Dynamics and “Scientific Review”. Demographics. Population dynamics and demographics include the natural LAND AND WATER USE PLANNING fluctuations of populations in size and location and the make-up of populations Regional HCPs must account for growth with regard to individuals’ ages, sizes, and probable development. They may also and gender. Conservation area design incorporate elements of watershed or must take into account the natural floodplain management plans. fluctuations that are expected in species populations resulting from varying Local government land use authority annual precipitation and temperature combines land use planning with habitat conditions, long-term climatic conservation planning. General plans and variations, minor and catastrophic specific plans are excellent long-range land disturbance events, predator and prey use planning tools to combine with regional population fluctuations, disease HCPs. Parallel development of the outbreaks, and other causes. conservation and open space element of the general plan with a regional conservation · Population Genetics and Gene Flow. plan is an excellent means for integrating Population genetics and gene flow local land use and transportation planning include the genetic variation within and with regional conservation planning. See the among populations of the species and sidebar on the Western Riverside County

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Multi-Species Habitat Conservation Plan for Agencies with responsibility for water an example of this approach. supply and flood control play an important role in wetlands and watershed conservation Some of the planning tools available for planning and habitat conservation planning. local governments to use in implementing Operations and maintenance of control conservation plans include: structures such as dams and levees, maintenance of flood control channels and · special districts (e.g., conservation conveyance canals, and operations of water districts, landscape and lighting diversions can be integrated with HCPs for districts); species that use rivers and streams and · urban growth boundaries (or urban associated wetland and riparian habitats. services/limit boundaries); Some water management tools that can be used for implementing HCPs include: · impact fees; · operations management (e.g., dams, · open space fees; pumps, diversions); · zoning ordinances; · water banking; · conservation ordinances; · water transfers; · transfer of development rights or · environmental water accounts; densities; · fish passage structures; and · mitigation and conservation banks; and · fish screens. · land swaps among private, local, state, and federal agencies.

36 GUIDE TO HABITAT CONSERVATION PLANNING REGIONAL CONSERVATION PLANNING

WESTERN RIVERSIDE COUNTY MULTI-SPECIES HCP

Riverside County is near the end of an ambitious vation planning failed because the countywide study planning process in which the County has area was too large and because a critical bond concurrently developed a general plan update, a measure was rejected by the voters. The current regional transportation plan, and a multispecies effort, however, has been more successful because HCP. These three projects combined are called the of its more manageable size and because of a Riverside County Integrated Project. stronger commitment to the process by County and city governments and the state and federal wildlife The HCP focuses on the western third of the agencies. County, where much of the future growth will occur. The Western Riverside County Multi-Species The HCP began in 1999 and covers 1.26 million Habitat Conservation Plan is also a Natural acres within the County and 14 cities. The HCP will Community Conservation Plan; it is the largest such cover 146 species, including arroyo southwestern plan within the Southern California Coastal Sage toad, mountain yellow-legged frog, coastal Scrub Natural Community Conservation Plan California gnatcatcher, southwestern willow Program. flycatcher, and Stephen’s kangaroo rat. Strong baseline data were generated by scientists at the The Western Riverside County Plan followed 10 University of California, Riverside, and made years of different planning attempts. Regional available on the Internet early in the planning conservation planning under the federal ESA began process to ensure transparency. after the listing in 1988 of Stephen’s kangaroo rat, According to the Draft Plan released for public which is found only in western Riverside County review in May 2003, the HCP will preserve an and adjacent San Diego County. In response, the additional 56,000 acres of land and manage 152,000 County and several cities prepared first a short-term acres at a cost of $1.54 billion over the 75-year and then a long-term HCP focused just on this permit term. The HCP will be jointly implemented species. by local, state, and federal governments. The expense and time required to prepare the plans convinced the County to take a multispecies approach. The first attempt at multispecies conser-

REGULATORY COMPLIANCE shopping.” Regulatory streamlining involves the simplification of a given permit process, No matter what the goals of a regional usually involving reducing regulatory conservation plan, the process followed and redundancy and processing complexity. documents produced must comply with the Typically, the federal wildlife agencies and requirements of Section 10 of the federal the Department of Fish and Game delegate ESA and either Section 2081 of the some responsibility for the federal and state California ESA or the Natural Community ESA permit processes to local agencies in Conservation Planning Act. Regional HCPs the plan area. can address resources protected by various other natural resources laws and regulations; One-stop-shopping involves the combining accordingly, a regulatory compliance of two or more regulatory approvals into a strategy should be developed early in the single approval process administered by a planning process. single agency under the regional plan. For example, the regional conservation plan can Integrating compliance with other include not only sufficient conservation regulations achieves two major goals: measures to support federal ESA Section 10 “regulatory streamlining” and “one-stop- and California Section 2835 permits, but

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also to support regional compliance with various other environmental regulations, The cost of plan implementation must be including: calculated for the life of the plan. A determination should be made early in the · Section 404 of the Clean Water Act planning process what conservation permitting for placement of dredge or measures are affordable and who will pay fill material into waters of the United for them. Determining how costs will be States, including wetlands; spread among those who benefit from the plan is an important economic and political · Section 401 of the Clean Water Act decision. See discussion of cost estimating water quality certification; and funding mechanisms in Chapter VI · watershed plans in compliance with under “Implementation Costs and Funding Section 303 of the Clean Water Act Mechanisms.” addressing total maximum daily load (TMDL) development and approval; The economic impact of the plan on the local economy should be assessed in the · Section 1602 of the California Fish and plan or the accompanying CEQA/NEPA Game Code through a master document. A plan that burdens the local stream/lake bed alteration agreement; economy may not be viable. Remedies for · local coastal program land use plans economic impacts include infusion of funds under the California Coastal Act and from outside sources (e.g., state or federal federal Coastal Zone Management Act; agencies, special federal or state legislation) or in-lieu funding to replace the loss to the · regional programmatic CEQA and local tax base. NEPA compliance for biological resources impacts; and PUBLIC INVOLVEMENT · local agency development approvals. Public support is essential for the successful Compliance with multiple environmental implementation of any regional habitat plan. laws will likely require an increased level of The planning process should include public conservation (for example, commitments to outreach and education, public involvement, conserve a wider range of resources, such as and stakeholder consensus. Public wetlands, streams, and ponds that may not involvement should begin early and be habitat for listed species) under the continue through plan implementation. HCP/NCCP. But this commitment to provide conservation sufficient for Public outreach and education involves compliance with multiple regulations will active publicity of the HCP/NCCP process typically be more efficient and cost effective through such vehicles as: than addressing each regulation · newsletters, brochures, and videos; independently. · press releases; ECONOMIC ANALYSIS · a Web site providing educational information, meeting and workshop Even if they are developed using the best announcements, and draft documents for biological science and land use planning public review; and principles, regional conservation plans are not viable if they are not affordable. A key · radio and television announcements of component of conservation planning is hearings and workshops. determining the cost of plan implementation and deciding how the plan will be funded.

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Public involvement is achieved through: DECISION MAKING · open meetings of committees and Steering committees often guide decisions decision-making bodies, regarding the approach and content of regional conservation plans. A county board · broad involvement of interest groups in of supervisors, city council, water district a stakeholder or steering committee; board, or other local agency may appoint a · public hearings and workshops where steering committee. Several local agencies public comments are received, and may also decide to form a joint powers authority (JPA) to serve as or appoint the · receipt of written comments via mail or steering committee. e-mail solicited on early drafts of the

plan and through the CEQA/NEPA Membership in the steering committee may comment process. include only representatives of decision- Interested stakeholders typically have a making agencies or be open to a wider range great deal of influence on such conservation of members. Non-agency stakeholders may plans. Stakeholder consensus is crucial to be included on the steering committee or the success of a regional conservation may be organized in a separate committee (a planning process. Stakeholders who become “stakeholder committee”) that provides alienated from the process may use their advice and recommendations. A influence to derail the planning process. Key professional facilitator may be necessary to stakeholders typically include: help the stakeholder committee function and reach consensus. · landowners;

· economic development interests (e.g., In addition, technical subcommittees are land developers, business owners, often created by the steering committee to chambers of commerce); focus on a specific aspect of the plan. These · water suppliers and users; subcommittees may include: · environmental groups (local, statewide, · biological subcommittee, and national); · economics/implementation · agricultural interests (often represented subcommittee, and by the local Farm Bureau and · compliance subcommittee. Cattleman’s Association); · resource user interests (e.g., timber, Stakeholder committees have the benefit of commercial fisheries, mining); providing a more open discussion, with greater focus on group consensus. However, · recreational interests;, and stakeholders representing interest groups may have difficulty reaching agreement on · federal, state, and local regulatory and key decisions. The use of a steering resource agencies other than the wildlife committee of agency staff and an advisory agencies and permit applicants. stakeholder committee can serve as a Every effort should be made to include these compromise that allows both open stakeholders in the decision-making process. discussions and stakeholder input and efficient decision making.

39 GUIDE TO HABITAT CONSERVATION PLANNING REGIONAL CONSERVATION PLANNING

SAN JOAQUIN COUNTY MULTI-SPECIES HABITAT CONSERVATION AND OPEN SPACE PLAN

One of the largest Habitat Conservation Plans County and cities, not just development that approved to date is the 896,000-acre San Joaquin occurs in habitat for covered species. County Multi-Species Habitat Conservation and Open Space Plan. The plan covers 24 species A wide range of interest groups supported the and encompasses all of San Joaquin County, plan because it provides open space for including seven cities and six state and local recreational activities and for habitat preserves water and transportation agencies. The covered within which recreation is restricted or limited. species include Swainson’s hawk, giant garter snake, valley elderberry longhorn beetle, vernal A common concern about HCPs is that they will pool fairy shrimp, vernal pool tadpole shrimp, infringe on private property rights. The San and western burrowing owl. Joaquin County Habitat Conservation Plan addressed this issue in several ways. The An additional 73 species were included in the development of a purely process-based rather plan to provide CEQA “coverage”. Inclusion of than map-based plan meant that the goals of the these non-listed species in the plan simplifies plan could be accomplished by a variety of future CEQA compliance for projects within the preserve configurations, reassuring landowners permit area. Coverage of these non-listed of the voluntary nature of the plan and its species in the plan simplifies future CEQA dependence on land acquisition from willing compliance for projects within the permit area. If sellers. The plan also includes a neighboring a project proponent complies with the terms of landowner agreement. Landowners were the plan, there is no need to address them in a concerned that new endangered species might be project environmental impact report (unless attracted to the habitat preserves enhanced under circumstances have changed since the Plan was the plan and that these species might wander into signed. No surprises assurances cannot be neighboring private lands, restricting agricultural provided under CEQA). and other activities. The plan includes a provision that landowners within 0.5 mile of new As a combined habitat conservation and open preserves are exempt from species take space plan, the San Joaquin plan provides prohibitions during the term of the regional mitigation for the loss of habitat for covered permit. For Swainson’s hawk, a wide-ranging species and for other open space that does not species, the exemption is extended to 10 miles provide habitat for covered species. Nearly two- from preserves. These and other components of thirds of the cost of implementing the plan is the plan ultimately convinced the majority of borne by development fees that range from $750 local landowners and agricultural interests to to $8,000 per acre of open space developed. The support it; this broad-based support was critical amount assessed depends on the habitat value of to its success. the impact area. This system allows local agencies to spread the cost of implementation among all new construction projects in the

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SCIENTIFIC INPUT ROLE OF THE CONSULTANT Independent scientific committees or Regional HCP/NCCP documents are advisory panels can enhance the quality of usually prepared by professional the scientific information used to develop environmental consultants with expertise in the regional plan. Independent scientific conservation planning, ecology, regulatory input is recommended for Habitat compliance, economic analysis, public Conservation Plans and is required for involvement programs, group facilitation, Natural Community Conservation Plans. land use planning, and the specific biological resources addressed by the plan. Independent scientific input lends credibility The consultant’s role includes the following. to the plan and can enhance public support. Scientific panels should include experts on · Providing expert advice on policy and covered species, local ecosystems, and regulatory options to decision makers. conservation biology. These experts may be drawn from local colleges, universities, · Using the best scientific information and government resource agencies, nonprofit approach practicable to achieve the organizations, and private consulting firms. plan’s goals. A typical panel will need 6–12 individuals · Developing a fact-based, unbiased to provide sufficient expertise in the range estimate of implementation cost and of biological resources required. analysis of funding mechanisms.

Independent scientific input should be · Recommending alternative approaches initiated early in the development of the to the conservation strategy. conservation plan and should be included in · Providing group facilitation for the development of the following meetings and workshops and components. implementing a public involvement · Covered species list. program. · Species status information and · Preparing the joint Habitat Conservation ecological profiles. Plan/Natural Community Conservation Plan document and joint Environmental · Data collection and analysis. Impact Statement/Environmental Impact · Impact assessment. Report. · Conservation strategy and specific conservation measures. The U.S. Fish and Wildlife Service and NOAA Fisheries may require a separation of · Monitoring plan. the consultant teams preparing the HCP from those preparing the NEPA document. · Adaptive management plan. These teams may be from different firms or

Scientific advice should be solicited often; they comprise separate staff within the same however, scientific panels should be limited firm. The federal wildlife agencies may require the consultant teams to sign to commenting on the scientific aspects of agreements prior to starting work that the plan rather than policy or economic formalize the team separation and establish issues. Scientific panels often need strong ground rules for the preparation of the facilitation to keep them focused on wildlife agency’s Environmental Impact answering specific questions. Facilitators who are scientists may be more successful at Statement. keeping a panel on track than a facilitator with no scientific background.

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EAST CONTRA COSTA COUNTY HCP/NCCP

The East Contra Costa County Habitat Conservation The plan proposes to cover 26 listed and nonlisted Plan and Natural Community Conservation Plan is species including San Joaquin kit fox, Alameda the first regional conservation plan of its kind in the whipsnake, California red-legged frog, California San Francisco Bay Area. The plan is under tiger salamander, and Mount Diablo manzanita. development and will primarily cover urban Stakeholders include environmental groups, development in the fast-growing cities of Pittsburg, developers, landowners, and agricultural interest Clayton, Brentwood, and Oakley. groups. A stakeholder group meets regularly to reach consensus on key issues and advise the The U.S. Fish and Wildlife Service required that the elected officials regarding policy. Plan be prepared in order to address the growth- inducing impacts of increased water deliveries to The primary conservation strategy will be the the region by Contra Costa Water District. A Joint creation of a 20,000- to 30,000-acre Preserve Powers Authority of the participating cities, Contra System that builds on a larger existing network of Costa County, the Contra Costa Water District, and protected park and open space lands within the the East Bay Regional Park District are leading the 175,000-acre planning area. Preserve lands will be Plan. The Joint Powers Authority is governed by a acquired in fee title or through conservation board of elected officials from each member easements. To address landowner and wildlife agency. A committee of senior planning staff from agency concerns, the plan is a hybrid of process- each member agency manages day-to-day activities based and map-based approaches. The plan will of the planning process. The Authority has been include maps of subareas in which land acquisition working since 2001 with a consultant team and a will be concentrated, but flexibility will be built into group of stakeholders to develop the plan. the plan to allow preserve assembly based on the availability of willing sellers.

42 · Assurances requested. Chapter VI · Permit amendment process. · Procedure for addressing unforeseen circumstances. Regional Habitat · Alternatives analysis. Conservation Planning: Each of these plan elements is discussed in this chapter. Elements of the Plan GEOGRAPHIC SCOPE Settling on the geographic scope and defining the planning area boundaries for a regional HCP is an important early decision. The planning area boundary is typically The previous chapter identified key issues based on a combination of political and components of the regional habitat boundaries, land ownership boundaries, and conservation planning process, including habitat boundaries. In many cases, the use of decision making, public involvement, and watershed boundaries for defining the scientific input. This chapter describes the planning area provides an ecologically specific elements that should be included in meaningful boundary—especially for plans a joint regional Habitat Conservation that involve aquatic species. Using political Plan/Natural Community Conservation Plan (e.g., city and county jurisdictions) and document. The key elements that must be ownership boundaries provides for the addressed are listed below. simplest regulatory conditions. The larger the geographic scope, the greater will be the · Geographic scope. complexity of the planning process because of the greater diversity of species and · Covered species. natural communities that will likely need to · Goals and objectives. be covered by the plan, as well as the larger number of jurisdictions, landowners, and · Permit duration. other stakeholders involved. Larger planning · Covered activities. areas may increase planning and implementation efficiency by increasing the · Data collection and existing conditions. funding base and reducing the per-acre cost · Impact analysis. of land management. The advantages and disadvantages of different planning area · Conservation strategy and conservation boundaries should be carefully considered measures. before beginning a planning effort. It is · Expected outcome. often expensive to change the planning area boundary significantly once the plan is · Adaptive management plan. underway. · Monitoring plan. The planning area need not necessarily be · Implementation costs and funding the same as the permit area. The permit area mechanisms. is the area in which incidental take of · Changed circumstances and remedial covered species is authorized. HCP/NCCP measures.

GUIDE TO HABITAT CONSERVATION ELEMENTS OF A REGIONAL PLAN

SAN DIEGO MULTIPLE SPECIES CONSERVATION PROGRAM

California’s Natural Community Conservation Each sub-area plan served as an implementation Planning program began in 1991 in an effort to agreement for the sub-regional NCCP. A major protect southern California’s coastal sage scrub challenge of this sub-regional approach is ensuring natural community. Because the program spanned consistency among many jurisdictions in land five counties (San Diego, Orange, Riverside, San management and in the details of species Bernardino, and Los Angeles), it was divided into conservation and monitoring. eleven “sub-regions,” each of which was expected to develop a sub-regional plan. Three of the eleven The southwestern San Diego County Multiple sub-regional plans have been approved, the largest Species Conservation Program encompasses a of which is the southwestern San Diego County 582,000-acre planning area that includes portions of Multiple Species Conservation Program. San Diego County, all of the City of San Diego, 10 other cities, and several special districts. This sub- San Diego County took a unique approach to regional plan covers 85 species and 23 natural developing its plan. The County developed a communities, called vegetation types. This sub- programmatic NCCP for one of the sub-regions. regional plan is divided into eleven subareas, four of Within the sub-region, smaller “sub-area” NCCPs which have approved sub-area NCCPs that are are developed. The sub-area plans describe how the being implemented. sub-regional plan will be implemented within the sub-area. Key species included in the San Diego County plan are coastal California gnatcatcher, arroyo Because NCCPs tend to be large, complicated southwestern toad, orange-throated whiptail, San projects, San Diego County has used this tiered Diego horned lizard, southwestern willow approach to simplify the process; tailor flycatcher, least Bell’s vireo, and light-footed implementation (e.g., management responsibilities, clapper rail. The plan employs a primarily map- funding sources, legal guarantees) to each local based strategy. Potential reserves are identified on jurisdiction; and provide an opportunity to adjust maps, and all or most of the land within the plan boundaries after the sub-regional plan is designated reserves is being acquired to assemble approved. the reserve system.

planning areas may cover large regions, with only a portion of the planning area defined The geographic scope of the plan must be as the permit area. Permit areas are often sufficiently large to encompass natural defined by planning boundaries such as communities within a region. The spheres of influence, urban services Department of Fish and Game has not boundaries, or urban limit boundaries. defined a minimum size for a Natural Community Conservation Plan. Each Conservation areas may be identified proposed NCCP planning area is assessed on throughout the planning area or only outside a case-by-case basis. Presumably any county the permit area. If necessary to meet specific in California is large enough to qualify for a plan goals, an HCP/NCCP may include Natural Community Conservation Plan. To conservation measures for acquisition of date, the smallest Natural Community specific types of conservation lands located Conservation Plans under development are outside the planning area. Allowing the Palos Verde Peninsula Natural acquisition of some habitat outside the Community Conservation Plan and the planning area can reduce the potential for former Fort Ord lands Natural Community extremely high conservation land costs Conservation Plan. within the planning area near the end of the conservation land acquisition process.

44 GUIDE TO HABITAT CONSERVATION ELEMENTS OF A REGIONAL PLAN

COVERED SPECIES Lead agencies or steering committees may Another early step in the planning process is decide to include other species for local the identification of species that the plan reasons or to address other laws. will cover. The covered species list may include both listed and non-listed species Plans that are developed to have a broader (and both listed and non-listed species can purpose than compliance with endangered receive “no surprises” assurances). Non- species law may include other sensitive listed species that are covered under the plan species in the plan that are not included in should be treated as though they were listed. the state and federal endangered species

permit applications. A local agency may Key criteria used to develop a covered decide that the regional conservation plan species list typically include the following. will address all CEQA biological resources issues and provide for a programmatic · The species occur or have the potential approach to mitigation of impacts for future to occur within the planning area and are projects in the planning area, streamlining likely to be affected by covered future CEQA biological resources activities. compliance for individual projects. For · The species are state- or federally listed example, the San Joaquin County Mulit- as threatened or endangered, or may Species Habitat Conservation Plan included become listed during the term of the a much longer list of species covered for permit. regional CEQA compliance than were covered for federal ESA compliance on the · Sufficient information is available about approved incidental take permit. the species to assess impacts and develop conservation measures.

THE COVERED SPECIES “LIST DILEMMA”

Plan participants often misunderstand the Environmental interests begin to fear having purpose of the covered species list. The too many species authorized for take, resulting confusion can result in a “list especially where ecological information dilemma.” Early in plan development, regarding some species is limited. environmental interests typically want to Development interests, however, begin to include many species on the covered species see the benefit of having a long list of list because they view the purpose of the covered species that provides a much higher plan as wholly beneficial to species. In level of certainty to their projects. contrast, development interests often want to keep the list short because they see each The list dilemma can result in much wasted additional species adding to the cost and time modifying the covered species list timeline of plan development and during the plan development process. To implementation. avoid such extra efforts, the purpose of the covered species list should be made clear These views often switch later in the early in the process, and specific criteria for planning process as the discussion of inclusion on the list should be adopted and covered species turns to permitting and the adhered to. authorization of incidental take.

45 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN

GOALS AND OBJECTIVES · Provide the basis for take authorization pursuant to the federal Endangered The regional HCP/NCCP should include a Species Act and the California Natural statement of goals and objectives. Goals fall Community Conservation Planning Act. into two categories. Overall goals address issues of economic growth and conservation · Reduce conflicts between protecting for the region. Biological goals address the threatened and endangered species and conservation of the species covered by the the conduct of economic development plan. activities by integrating land use planning and land management with Overall Goals species and habitat conservation. Overall goals for a regional plan are the guiding principles of the plan. These goals Biological goals typically address more than biological Measurable biological goals should be issues. They may include benefits to identified and quantified as early as economic growth and development, property possible. Biological goals may include the rights protection, agricultural land anticipated extent of protected and restored preservation, open space protection, and habitat and the population size and regulatory streamlining. Overall goals distribution of the covered species within the should be developed early in the planning planning area when the plan is fully process, discussed widely with stakeholders, imple mented. and made available to the public. At a minimum, the biological goals must The following are some examples of overall meet the requirements of federal and state goals. law. The federal ESA standard is that impacts on federally listed species be · Protect, enhance, and restore ecosystem minimized and mitigated to the maximum integrity and processes, natural extent practicable and that their continued biological communities, biodiversity, existence and recovery not be jeopardized and populations and habitat of by the plan. The federal wildlife agencies threatened and endangered species in the define biological goals in the Five Point planning area through a comprehensive Policy as “broad, guiding principles for the biological resources conservation operating conservation program of the planning and implementation process. HCP.” Biological objectives can be used in · Protect natural and agricultural open larger, more complex plans to further define space lands and achieve a balance of expected outcomes. Ideally, objectives open space and urban areas to meet the should be quantified. Biological goals and needs of local residents now and in the objectives need not be the same as recovery future. goals, but HCP goals should support recovery goals. The standard for NCCPs is · Respect and protect the rights of private that species be conserved. Because the property owners throughout the California ESA defines conserved to mean planning area and provide for a contributing to recovery, the Natural voluntary process and clearly stated Community Conservation Planning Act assurances for property owners in the standard for listed species is higher than the implementation of the conservation federal ESA standard. Moreover, NCCPs are plan. required to conserve ecological integrity, · Accommodate reasonable economic ecosystem function, and species diversity growth and development within the within the planning area. planning area in accordance with local land use plans.

46 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN

A common unit of measure for species The duration of most permits is likely to be populations and habitat should be developed 30 years or less. Some timber harvest HCPs and used consistently throughout the have been permitted for as long as 100 planning process for defining goals, years, but the federal wildlife agencies not describing existing conditions, assessing likely to offer such long-term permits in the impacts, describing conservation measures, future. Predicting changes in species status and developing performance standards and beyond a 25- or 30-year horizon is highly monitoring methods. Determining species speculative. population by counting individuals may be costly and impractical. Habitat is often used COVERED ACTIVITIES as the unit in regional plans to track impacts Regional HCP/NCCPs must identify the and conservation. Habitat is typically measured by acreage, but numeric models activities covered by the plan that could may also be developed to score habitat result in take of species in the plan area. functions. There are two ways of identifying covered activities in regional plans. NCCP goals and objectives should also · A detailed list and specific descriptions include goals for covered natural of activities. communities. These goals may be based on extent or on models that score ecosystem · A general description of the types of functions. NCCPs require a means for activities to take place within a defined defining and measuring ecological integrity permit area. and species diversity in covered natural communities. Plans may identify covered activities in both ways. They may also identify activities or specific projects that the permits will not PERMIT DURATION cover. Any incidental take permit—whether granted by state or federal wildlife agencies Detailed lists of specific activities provide —authorizes the take of covered species for greater certainty to the extent that specific a set period of time. Under the Five Point impacts and mitigation measures are known. Policy, the federal wildlife agencies expect General descriptions allow plans to address applicants to identify and justify the future growth and development that cannot requested duration of the permit. The be identified at the time of plan/permit duration of the permit is negotiated between approval. However, listing activities in the applicants and permitting agencies. The general terms may require a case-by-case duration of the permit is usually determined interpretation of the scope of the permit by the following criteria. during implementation.

· The length of time necessary to complete covered activities (e.g., build- DATA COLLECTION AND EXISTING out under a city or county general plan). CONDITIONS · The response time of the species Good regional planning processes are based populations and habitats affected by on good data. The most valuable data for a covered activities and conservation regional conservation plan are the locations measures (e.g., time necessary for of species and habitats. Most regional populations or habitat affected by planning areas are too large to conduct covered activities to recover full intensive surveys for covered species. function). Instead, maps of suitable habitat, species survey data, and historic occurrence records · The amount and adequacy of scientific are typically used to develop conservation information on covered species.

47 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN plans. Habitat models based on known development and analysis of watershed, vegetation, soil, and topographic conditions flow, and groundwater information. may also be used to predict where species will be found. IMPACT ANALYSIS

A geographic information system (GIS) is Regional HCP/NCCPs must assess the typically used to collect, store, and analyze impacts on covered species and identify the relevant biological and physical data. GIS level of species take that will be permitted. allows for spatial and temporal analysis of As discussed in “Goals and Objectives” above, a common unit of measurement various alternative approaches to covered should be used for impact assessment. The activities and conservation strategies. Such amount of take may be measured using information should be collected and organized with these purposes in mind. GIS individuals, populations, or habitat. databases can also track impacts, accomplishments, and the achievement of In many cases, the habitat area will be the goals during plan implementation. Examples most efficient measurement. Detailed information on the location of individuals of biological and physical data are listed and populations is typically not available below. and, if it were, it would only represent a · Species occurrences. snapshot in time of species distribution. Moreover, implementation of covered · Vegetation and other land-cover types. activities and impacts on species typically · Species habitat. occur over many years. Accordingly, habitat is more commonly used to measure take in · Streams, ponds, and other water bodies. Regional HCP/NCCPS. · Topography, slope, and aspect. For many species, however, using habitat · Watershed boundaries. loss as a measure of take is not appropriate, especially for species that are not habitat Land use planning data should also be limited. Population counts/estimates or other developed in a GIS database and used in the methods must be used instead. conservation plan development process. Examples of planning data are listed below. The plan may assume take based on habitat · Land use designations. or may require monitoring prior to implementation of each covered activity to · Planning boundaries such as spheres of directly measure take. The assumption of influence and urban limit lines/urban take may result in mitigation for sites that do services boundaries. not support covered species, but use of this · Political boundaries such as city, county, approach may be preferable to the time and and special district boundaries. expense necessary for conducting surveys to determine the specific effects of each · Existing public lands and lands managed covered activity throughout the planning for conservation purposes (such as lands area. with existing conservation easements). · Information on specific proposed The take amount identified in the plan and projects. the take limit in the permit should be sufficient such that development and other Habitat Conservation Plans and Natural activities covered by the plan can be Community Conservation Plans that address accomplished. The level of take should be river and stream ecosystems require the set at an amount sufficient to allow all covered activities to proceed within the term

48 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN of the permit. Otherwise, future amendments restore populations and habitat and to to the plan/permit may be necessary. preserve and restore ecosystem processes.

In addition to impacts on species, Natural Plans may include conservation measures at Community Conservation Plans must a range of spatial scales. identify impacts on natural communities · Landscape-level measures address covered by the plan, including the effects on overall conservation area design, ecosystem integrity, ecosystem functions, including size, shape, composition, and and species diversity. Assessment of these buffers. types of impacts requires the development of special definitions and units of measure for · Community-level measures include the natural communities covered by the plan approaches to enhancing and restoring and for ecosystem functions and integrity. natural communities to improve Each Natural Community Conservation Plan ecological functions, species habitat, is likely to be unique in its approach to and biodiversity. measuring these ecological parameters, because of the great variety of ecosystems · Species-specific measures address and natural communities in California. means to increase species populations or genetic diversity through more direct means. These measures may include CONSERVATION STRATEGY predator control, competitor control, AND CONSERVATION MEASURES weed removal, population augmentation, The heart of a regional conservation plan is artificial habitat structures (e.g., nest the conservation strategy. Depending on the boxes), and relocation of individuals. size and scope of the plan, the strategy may include a broad-based set of policies, Regional conservation plans vary greatly in specific conservation measures, or a their use of maps to identify the boundaries combination of both. The conservation of conservation areas. At one extreme, a strategy must include an approach that meets conservation plan may identify on a map the the mitigation requirements of the U.S. Fish specific boundaries of conservation areas to and Wildlife Service and the Department of be established (a map-based plan). At the Fish and Game to first avoid, second other extreme, the plan may describe a minimize, and third compensate for impacts process, without identifying specific on covered species. locations, by which the system of conservation areas will be assembled during The conservation strategy must include an plan implementation (a process-based plan). approach that meets the California ESA To achieve conservation goals, process- requirement of fully mitigating all impacts, based plans typically rely on mitigation the Natural Community Conservation ratios (amount of restoration or preservation Planning Act requirement for conserving required for each unit of habitat affected) species, and the federal ESA requirement of based on habitat acreage or an ecosystem minimizing and mitigating impacts to the function scoring system. Map-based and maximum extent practicable. There are as process-based approaches may be combined many approaches to conservation strategies in the same plan. The advantages and as there are plans. The conservation strategy disadvantages of map-based and process- typically includes measures to preserve based plans are summarized in Table VI-1. populations and habitat, to enhance and

49 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN

COURT INVALIDATES THE NATOMAS BASIN HCP

On August 15, 2000, the U.S. District Court for the · A regional cumulative effects analysis is Eastern District of California ruled on standards for necessary to evaluate the habitat value of lands Habitat Conservation Plan preparation in a being destroyed and conserved so that lands of landmark case with implications for the scientific, equal habitat value are exchanged. environmental compliance, and financial aspects of · An alternative involving mitigation must be HCPs throughout the nation (National Wildlife analyzed that supports the conclusion that the Federation v. Bruce Babbitt, 128 F.Supp.2d 1274 proposed plan minimizes and mitigates impacts [E.D. Cal 2000]). Judge David Levi invalidated the to “the maximum extent practicable,” with HCP, Section 10 Incidental Take Permit, and NEPA explicit findings as to why certain mitigation is document associated with conversion of more than infeasible. 17,500 acres of natural habitat and agriculture to · The permit applicant must make a clear showing residential, commercial, and industrial development of a reliable funding source for the mitigation in the Natomas Basin, located in the northeast proposed, as well as identify a responsible party portion of the City of Sacramento. in the event of a funding gap. The court noted that the threat of permit revocation by the U.S. A court invalidated the U.S. Fish and Wildlife Fish and Wildlife Service is not a strong enough Service’s approval of an HCP for the City of mechanism to serve to ensure funding. Sacramento. The plan at issue addressed the · The permit applicant must agree to adaptive conservation of 26 covered species present mainly management provisions that attach financial on agricultural lands in the northern area of the city. responsibility for their success to either the The U.S. Fish and Wildlife Service completed its applicant or a third party. NEPA review for the issuance of the permit with an · An Environmental Impact Statement under Environmental Assessment supporting a Finding of NEPA is required for regional HCPs in almost all No Significant Impact. Six local, state, and national cases. In this case, there were several factors that conservation groups brought suit against the U.S. pointed to a need for an Environmental Impact Fish and Wildlife Service, claiming that the Statement, including substantial controversy and Natomas Basin HCP failed to meet many of the uncertainty regarding the effects on listed species criteria necessary for approval under the federal and their habitats. ESA and that NEPA compliance required the completion of an Environmental Impact Statement, The court ruled that it was acceptable to estimate a more comprehensive documentation of the level of take based on the extent of suitable environmental affects than an Environmental habitat rather than the number of individuals, and Assessment. The plaintiffs argued that substantial the adaptive management plan was adequate in the uncertainty remained regarding the extent and face of scientific uncertainty. effectiveness of the proposed habitat reserves, the scientific information used in the HCP, and the One year after the lawsuit, an interim settlement funding sources for the proposed mitigation plan. agreement was approved that allowed development The court agreed with most of the plaintiffs’ in certain areas of the HCP in exchange for arguments, holding that approval of an HCP is acquisition of prime habitat, an increase in the dependent on the following criteria. developer’s fees (from $2,240 to $3,941 per acre), and an agreement by the applicant to provide · HCPs that are dependent on mitigation across funding in the event of a funding gap. Over the multiple jurisdictions (in this instance, portions of following 2 years, an EIS and a new HCP with a Sacramento and Sutter Counties were included in regional approach were developed to address the the plan) must involve a multi-jurisdictional court’s concerns. The new HCP included land in regional planning effort, and permits must be Sutter County in addition to the land in the City of issued to all jurisdictions involved in preparing Sacramento that was in the original plan. The new the plan, not just one (in this instance, a permit HCP more than doubled the impact fee to $10,000 was issued only to the City of Sacramento). per acre to account for increased land prices. The U.S. Fish and Wildlife Service approved the new plan in July 2003. New lawsuits by environmental interests have already been filed.

50 GUIDE TO HABITAT CONSERVATION ELEMENTS OF A REGIONAL PLAN

TABLE VI-1. COMPARISON OF MAP- AND PROCESS-BASED PLANS Map-Based Plan Process-Based Plan

Definition Identifies specific boundaries of Describes a process for assembling a conservation areas to be established. system of conservation areas without identifying specific locations.

Clearly designates areas for Avoids controversy of identifying conservation and development; easier specific areas for conservation; easier to Advantages to apply principles of conservation develop mitigation ratios rather than to biology; easier to monitor; typically plan conservation area system; more does not require preproject surveys to flexibility in assembling conservation measure impacts and determine areas; less likely to be reliant on specific mitigation. or key parcels.

Landowner concerns about effects on Reliant on process and guidelines to property values; requires collection of a develop ultimate conservation areas; less greater amount of habitat and species certainty as to conservation area system data during the plan development design and eventual function; may result Disadvantages process so that impacts and in a patchwork of conservation areas; conservation measures can be assessed; typically requires future expenditures for more difficult to adapt conservation project-specific surveys to determine area system design to new information impacts, so that mitigation requirements derived from monitoring and research; can be determined. reliant on specific areas or parcels for plan success.

Central/Coastal Orange County Natural Natomas Basin Habitat Conservation Examples Community Conservation Plan and San Plan and San Joaquin County Multi- Diego Multi-Species Conservation Plan Species Habitat Conservation and Open Space Plan

Among approved conservation plans, the Community Conservation Plan are hybrid central/coastal Orange County Natural map-based/process-based plans that include Community Conservation Plan and San mapped zones for land acquisition within Diego Multi-Species Conservation Plan in which property would be purchased from southern California are primarily map-based willing sellers. approaches. The Natomas Basin Habitat Conservation Plan and San Joaquin County EXPECTED OUTCOMES Habitat Conservation Plan are primarily Once impacts have been assessed and process-based approaches. The proposed Kern Valley Floor Habitat Conservation conservation measures developed, it is Plan is a hybrid of map- and process-based recommended that the regional conservation approaches that includes mapped geographic plan clearly describe the expected outcomes zones in which impact assessment and for covered species resulting from the mitigation measures follow different combined effects of impacts of covered activities and implementation of processes. The proposed Western Riverside conservation measures. Are all goals County Natural Community Conservation expected to be achieved? What will be the Plan and East Contra Costa County Natural contribution to species recovery? Often to

51 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN achieve habitat goals for one species, other strategy, permit amendments or a new species are provided incidental benefit; the permit may be required. stated goals for these other species may be exceeded by plan implementation. In larger plans, adaptive management may include a formal structure of decision making during plan implementation. A ADAPTIVE MANAGEMENT PLAN scientific advisory panel may be included to There is great complexity in ecological help interpret information gathered during processes and species interactions in even management and monitoring and to develop the simplest ecosystems and natural improved conservation measures. communities. Scientists and resource managers have always recognized that MONITORING PLAN uncertainty is an unavoidable component of Monitoring involves the gathering of managing natural systems. Resource information during implementation of a managers must therefore recognize and conservation plan. Monitoring is a prepare for the uncertainty that underlies mandatory element of HCPs under federal resource management. Adaptive ESA regulations2; monitoring requirements management is an approach for addressing 3 this uncertainty. are described in the Five Point Policy. Monitoring is also a mandatory element of 4 Under the Five-Point Policy (Appendix D), NCCPs. Monitoring can be divided into the federal wildlife agencies define adaptive three main types: compliance monitoring, management rather broadly as “a method for effects monitoring, and effectiveness examining alternative strategies for meeting monitoring. measurable biological goals and objectives, and then, if necessary, adjusting future Compliance monitoring is used to confirm conservation management actions according that actions specified in the plan and permit to what is learned.”1. have been conducted as specified. For example, compliance monitoring may Regional HCP/NCCPs must include an confirm that habitat acquisition has been adaptive management plan. With an accomplished in the amount and locations adaptive management approach there should required in the plan and that habitat be continuing improvement in techniques restoration has been conducted using the for habitat restoration and enhancement, methods and to the extent specified in the habitat management, population plan. management measures, and ecological systems management over the Effects monitoring involves the assessment implementation period of the plan. Adaptive of the actual impacts that covered activities management, because it can entail a have on covered species populations and continual change in conservation approach, habitat and ecological processes. The may result in conflicts with no surprises expected effects of covered activities on assurances and the permit amendment species must be identified in the process (see “Assurances Requested” and HCP/NCCP, but the actual effects may “Permit Amendment Process”). When adaptive management identifies the need for 2 substantial changes in conservation 50 CFR 17.22, 17.32, and 222.307 measures or in the overall conservation 3 65 FR 106:35242-35257

1 4 65 FR 106:35242-35257 Cal. Fish & Game Code §§ 2820(a)(7).

52 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN

LEGAL CHALLENGES TO HABITAT CONSERVATION PLANS

Habitat Conservation Plans may be challenged by · Requirements of NEPA, including preparation environmental and conservation groups as not of an Environmental Impact Statement where complying with federal ESA or NEPA the proposed action significantly affects the requirements. There are specific procedural and quality of the human environment. NEPA substantive requirements set out in the law and issues relate to adequacy of: regulations regarding federal ESA and NEPA that - project description and must be complied with. In all cases the interrelated/interconnected actions; administrative record must have substantial - range of alternatives; evidence to support the federal wildlife agency’s - baseline for determining environmental decision to issue the Incidental Take Permit. impacts; Challenge to the HCP could focus on the following - methodology for determining issues. environmental impacts; and

- description of mitigation measures. · Public notice and comment procedures of ESA and NEPA. When investigating new techniques regarding · Findings of the wildlife agency, supported by mitigation (e.g., mitigation banks) the federal substantial evidence, regarding whether: wildlife agencies should ensure the success of off- site mitigation and analyze the relative importance - the taking is incidental to an otherwise of habitats to be removed and conserved. In lawful activity; addition, the wildlife agencies must have - impacts of incidental take are minimized documentation that they have analyzed the and mitigated to the maximum extent economic practicalities of securing greater practicable; mitigation. The wildlife agencies must have - the mitigation and monitoring program is information that there is a reliable funding source sufficient and adequately funded; for the mitigation and should provide a guaranteed - other commitments in the HCP are backup funding mechanism, if appropriate. adequately funded; - procedures are provided to deal with One of the few examples of a successful lawsuit unforeseen circumstances; against an approved Habitat Conservation Plan - the incidental taking will not appreciably involved the Natomas Basin Habitat Conservation reduce the likelihood of the survival and Plan in Sacramento. See the sidebar for a recovery of the species in the wild. description of this legal challenge and its important implications for future plans.

differ from predicted effects, especially in maintenance of ecosystem functions in instances in which the effect of an activity or protected habitat that results in stable the biology of a species is not well known. population levels of covered species, and As covered activities progress and the increased ecosystem functions in enhanced conservation plan is implemented, effects and restored habitat that results in increased monitoring is necessary for long-term, population levels of covered species. regional plans in order to determine if the Effectiveness monitoring is conducted to conservation strategy is adequate to address determine if these expectations have been the impacts. met and hence if conservation measures have been successful. Effectiveness Effectiveness monitoring addresses the monitoring encompasses mitigation expected outcome of conservation measures. performance monitoring as well as The plan provides predictions of specific additional information gathered to support outcomes of conservation measures, such as adaptive management.

53 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN

Regional conservation plans may need to source of funding for implementation combine direct and indirect monitoring to determined. The federal and California measure plan success. Direct monitoring ESAs and the NCCPA all require that the involves the site-specific compliance, applicant ensure adequate funding for effects, and effectiveness monitoring of implementing the conservation plan. impact and conservation areas. Indirect Estimating the total cost of a regional plan monitoring involves the gathering of can be difficult. Implementation costs regional or ecosystem-wide data (in many typically include: cases through remote sensing methods) to · program administration (establishment determine trends in habitat extent and of an implementing entity, either newly function over time. For example, created or as a new function of an implementation of a regional conservation plan may involve a complete mapping of existing organization); habitats in the planning area periodically to · land acquisition through fee title, determine the overall trends of habitat losses conservation easement, or land and gains from all causes. Periodic species exchanges; sampling surveys across the plan area may be conducted to ascertain species population · habitat restoration and enhancement trends. (including design, engineering, and construction); The frequency and intensity of monitoring · species population and habitat must be determined in light of regulatory management; requirements, ecological necessity, scientific requirements, and practicability. Regulatory · management and maintenance of requirements address the need for conservation areas (e.g., fencing, roads, monitoring to be sufficient to prove the plan fire breaks, irrigation systems, utilities); is operating successfully. Ecological · acquisition of equipment and necessity addresses the need to monitor construction of facilitie s (e.g., different types of natural communities and management offices and equipment species in different ways, at different times storage facilities at conservation areas); of year and with different intensity and frequency. Scientific requirements address · adaptive management program; the need for statistically and ecologically · monitoring program; and valid monitoring methods and appropriate experimental design. Practicability addresses · contingency for remedial measures. the need to conduct monitoring that is logistically feasible and affordable. There are many ways to fund implementation of a regional HCP/NCCP. As mentioned above under “Adaptive Public receptivity to different funding Management Plan,” a properly designed mechanisms varies by location and political monitoring plan is crucial to adaptive climate. management. Without appropriate monitoring data, the learning processes Examples of funding sources are: necessary for adaptive management cannot · impact fees on development; proceed effectively. · special assessment districts (open space IMPLEMENTATION COSTS AND or conservation districts can be FUNDING MECHANISMS established, or existing landscape and lighting districts can be used); The cost of implementing a regional conservation plan must be estimated and the

54 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN

· open space fees (where a conservation on No Surprises Assurances”).5 Remedial plan is also an open space plan); measures should be described that address changed circumstance. For example, if a · sales taxes or other new taxes; flood were to remove a riparian forest · federal, state, or private grants; restoration site, the conservation plan might state that the site would be replanted using · specific federal or state legislation to the same methods as the original restoration. fund plan implementation; and · land exchanges among private, local, state and federal entities. PLACER COUNTY’S PLAN

Habitat conservation typically provides benefits to a wide range of stakeholders. It The Placer Legacy Habitat Conservation Plan and Natural Community Conservation Plan has is, therefore, best to spread implementation been under development in Placer County since funding among several sources in order that 2000. Placer County supports a wide range of no one segment of the community bears the elevations and high ecological diversity, so the full cost. County decided to conduct planning in three phases to keep the plan manageable. The first The Natomas Basin HCP in Sacramento, for phase will address the conservation needs of the example, is funded primarily through impact western portion of the County in the Central fees. The San Joaquin County HCP is Valley and Sierra Nevada foothills. Phase 2 will funded primarily through impact fees and address the upper foothills of the Sierra and the urbanizing areas east of the Sierra crest. Phase 3 open space fees. In November 2000, Placer will address the conservation needs of public and County placed separate local measures on private timberlands in the Sierra Nevada. the ballot requesting the voters to decide if they supported planning for open space Placer County is taking a unique approach to the preservation and if they supported a quarter- planning process by spending several years cent sales tax to pay for open space collecting extensive baseline data on biological acquisition under the Placer County Legacy resources. This data collection will allow the HCP/NCCP currently in development (see County to determine impacts and conservation sidebar). The voters approved the concept of measures with greater certainty than has been planning for open space preservation, but achieved in preparation of many other HCPs. In rejected the funding of open space addition, fewer biological surveys during plan acquisition through a sales tax. The San implementation are likely to be required. There are 35 species currently proposed for coverage in Diego Multi-Species Conservation Plan has Phase 1 of the Plan. Major species include vernal received substantial funding from state and pool invertebrates, steelhead trout, Swainson’s federal sources, including legislation and hawk, and bald eagle. Placer County has bond measures. expanded its plan beyond simple habitat protection to include open space acquisition and CHANGED CIRCUMSTANCES AND agricultural conservation. The County hopes that the broad goals of the plan will increase support REMEDIAL MEASURES and create opportunities for a broad base of Under the “no surprises rule,” HCPs must funding for plan implementation. describe potential changed circumstances (e.g, flood, fire, or failed restoration) and how the implementing entity will address them (see section “No Surprises Rule” in Chapter II and the sidebar “Courts Weigh in 5 63 Fed. Reg. 35 (1998) (amending 50 C.F.R. 17.22(b)(5), 17.32(b)(5) and 222.307(g)).

55 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN

Because the no surprises rule requires that Beyond a certain threshold a change in the changed circumstances be described in the plan would exceed the amendment process HCP, or the permit holder is not responsible and trigger the need for a new permit and for remedial actions, the federal wildlife hence a new HCP. It may be beneficial to agencies are likely to require an exhaustive identify in the conservation plan or the list of potential changed circumstances and implementation agreement the triggers and remedial measures to ensure that all possible thresholds for minor plan modifications, events are addressed. permit amendments, and new permits.

ASSURANCES REQUESTED PROCEDURE FOR ADDRESSING In addition to the no surprises provisions UNFORESEEN CIRCUMSTANCES under both the federal ESA and the NCCPA HCPs are required to identify a procedure that cover new species listings and for addressing unforeseen circumstances unforeseen circumstances (protecting the (see discussion of “No Surprises Rule” in permit holder from having to provide Chapter II).6 While the no surprises rule additional money, land, or water), applicants protects permit holders from having to can request other assurances from the provide any additional money, land, or federal wildlife services and the Department water, a process must be identified for the of Fish and Game. permit holder to follow in the event of unforeseen circumstances. The protection of landowners that fear additional regulation of their land because it ALTERNATIVES ANALYSIS is near conservation areas may be addressed by a “neighboring landowner agreement.” Regional Habitat Conservation Plans must Such an agreement can extend some amount describe alternatives to the proposed of incidental take authorization to conservation plan. The federal wildlife neighboring landowners who meet certain agencies must comply with NEPA and its requirements set forth in the permit. requirement to analyze alternatives. Under Agricultural interests are often concerned the federal ESA, this analysis must also about new conservation areas with restored include an alternative to take. Natural habitat and the potential movement of new Community Conservation Plans must be or greater numbers of listed species to their accompanied by a CEQA document and property from the conservation area, fearing address the requirement under CEQA to that such movement may result in curbs on analyze alternatives to the proposed project. their use of pesticides and herbicides at the interface of their property and the The following alternatives should be conservation area. The San Joaquin County addressed in the EIR/EIS for a Habitat HCP includes a well-developed neighboring Conservation Plan/Natural Community landowner assurance process. Conservation Plan: · No-take alternative (covered activities PERMIT AMENDMENT PROCESS avoid all take): Requires no action by The regional conservation plan should the federal wildlife services or the clearly describe a process for minor Department of Fish and Game (no need modifications and amendments of the to issue Section 10 or Section 2835 permit. For instance, certain changes in permits). Usually not practicable for conservation measures or covered activities may be considered minor modifications and 6 not require a formal permit amendment. 63 Fed. Reg. 35 (1998) (amending 50 C.F.R. Other more substantial changes may require 17.22(b)(1), 17.32(b)(1) and 222.307(b)). a permit amendment, but not a new permit.

56 GUIDE TO HABITAT CONSERVATION PLANNING ELEMENTS OF A REGIONAL PLAN

regional conservation plans because of · Different permit areas or types of the large scale of activities addressed. covered activities. · No-permit alternative: What would · Different covered species (e.g., only happen in the region under the standard listed species rather than both listed and project-by-project federal ESA Section non-listed species). 10 permitting and California ESA Section 2081 permitting if there were no · Different approaches to protection and regional HCP/NCCP and no regional restoration of species and habitat. Section 10 and Section 2835 permits · Different amounts of protection and issued? restoration of habitat. · No-project alternative: No future · Different conservation area system development or other covered activities designs (for map-based plans) or criteria implemented. This is usually not (for process-based plans). practicable for regional conservation plans for which covered activities are reason for the plan. IMPLEMENTING AGREEMENT · Greater level of conservation The implementing agreement is a legal alternative: To demonstrate that an HCP document, signed by all parties, that meets the requirement that the impacts identifies roles and responsibilities of all are minimized and mitigated to the parties, including permit holder(s), the maximum extent practicable, at least federal wildlife agencies, and the one alternative should be assessed that Department of Fish and Game (see Chapters provides a greater level of benefit to II and III for discussion of the implementing covered species than the proposed plan. agreement). The agreement typically incorporates actions from the conservation Additional types of alternatives that can also plan that are contractually agreed to by all be included. parties. All covered species must be listed in the implementation agreement.

PACIFIC LUMBER COMPANY HCP

The 1999 Pacific Lumber Company Habitat The HCP includes a two-tiered approach to species Conservation Plan covers 211,700 acres of protection. The first includes terrestrial and aquatic timberland in Humboldt County. The plan arose conservation measures for six focus species: from an earlier agreement between the federal and northern spotted owl, marbled murrelet, coho state governments to purchase the Headwaters salmon, Chinook salmon, cutthroat trout, and Grove of old-growth redwoods from the Company steelhead. The second tier includes measures for $380 million. addressing ecological requirements of the remaining 11 covered species. The agreement committed Pacific Lumber Company to developing an HCP on its remaining Private timber companies, including Pacific Lumber lands for its timber harvesting and related activities. Company, have the benefit of years of baseline data The HCP was combined with a sustained yield plan from timber operations. This wealth of site-specific required by the California Department of Forestry data can greatly strengthen a plan and result in and Fire Protection because many of the much shorter development and approval times. This requirements overlapped. The HCP also served as is one reason that the Company was able to obtain the mitigation plan for a streambed alteration their incidental take permit in only two and a half agreement under Section 1603 of the California Fish years after starting their planning process. and Game Code.

57 Appendix A Federal Endangered Species Act

Source: http://endangered.fws.gov/esa.html

A-1 Appendix B California Endangered Species Act

Source: http://ceres.ca.gov/env_law/cesa/stat/ or http://www.dfg.ca.gov/hcpb/ceqacesa/cesa/incidental/cesa_p olicy_law.shtml

A-2 Appendix C Natural Community Conservation Planning Act

Source: http://www.dfg.ca.gov/nccp/displaycode.html

A-3 Appendix D Five-Point Policy for Habitat Conservation Plans

Source: http://www.epa.gov/EPA-IMPACT/2000/June/Day- 01/i13553.htm

A-4 Appendix E Federal Section 10 ESA Incidental Take Permit Regulations

U.S. Fish and Wildlife Service Regulations (50 CFR 17)

Source: http://endangered.fws.gov/esa.html#Lnk10

NOAA Fisheries Regulations (50 CFR 222)

Source: http://www.nmfs.noaa.gov/prot_res/readingrm/Permit_regs/5 0cfr222.pdf

A-5 Appendix F Environmental Web Sites

A-6 Appendix F. Environmental Web Sites

Audubon Society http://www.audubon.org/ California State Assembly http://www.assembly.ca.gov California Attorney General http://caag.state.ca.us/index.html

California Attorney General Opinions http://caag.state.ca.us/opinions/

California Biodiversity Council http://ceres.ca.gov/biodiv/

California Coastal Commission http://ceres.ca.gov/coastalcomm/web

California Code of Regulations http://ccr.oal.ca.gov/

California Codes http://www.leginfo.ca.gov/calaw.html

California Department of Water Resources http://wwwdwr.water.ca.gov

California Department of Conservation http://www.consrv.ca.gov/

California Department of Fish & Game http://www.dfg.ca.gov

California Ecological Restoration Projects Inventory http://endeavor.des.ucdavis.edu/cerpi/default.htm

California Endangered Species Act http://ceres.ca.gov/topic/env_law/cesa/stat/

California Environmental Resources Evaluation System http://ceres.ca.gov

California Fish and Game Code http://www.leginfo.ca.gov/cgi-bin/calawquery? codesection=fgc&codebody=&hits=20

California Legislative Counsel http://www.leginfo.ca.gov/legcnsl.html

California Legislative Information http://www.leginfo.ca.gov

California Native Plant Society http://www.cnps.org

California Office of Permit Assistance http://commerce.ca.gov/index.html

A-7 California Resources Agency http://ceres.ca.gov/cra

California Senate and Assembly Bill Information http://www.leginfo.ca.gov/bilinfo.html

California Senate http://www.sen.ca.gov

California State Bills Search http://info.sen.ca.gov/cgi-bin/pagequery?type=sen_ bilinfo&site=sen&title=Bill+Information California State Environmental Law, Regulation, and Policy http://www.ceres.ca.gov/elaw/

California State Lands Commission http://www.slc.ca.gov/

California State Home Page http://www.ca.gov/state/portal/myca_homepage.jsp

California Supreme Court and Court of Appeals http://www.courtinfo.ca.gov/opinions

California Water Resources Control Board http://www.swrcb.ca.gov

California Wetlands Permitting Information http://www.ceres.ca.gov/wetlands/permitting.html

Caltrans http://www.dot.ca.gov

CEQ's NEPAnet http://ceq.eh.doe.gov/nepa/nepanet.htm

CEQA Guidelines http://ceres.ca.gov/topic/env_law/ceqa/guidelines/

CERES Environmental Conservation http://ceres.ca.gov/theme/conservation.html

CERES Wetlands http://ceres.ca.gov/wetlands/index.html

Code of Federal Regulations http://www.access.gpo.gov/nara/cfr/index.html

Center for International Earth Science Information Network http://www.ciesin.org

County Superior Courts California http://www.courtinfo.ca.gov/otherwebsites

A-8 Endangered and Threatened Animals of California http://www.dfg.ca.gov/whdab/TEAnimals.pdf

Endangered Species http://eelink.net/EndSpp/

Endangered Species http://ceres.ca.gov/topic/rare.html

Endangered Species in National Parks http://www.aqd.nps.gov/wv/es.htm

Envirolink Network http://envirolink.netforchange.com/

Environmental Documents http://elib.cs.berkeley.edu/docs

Environmental Policy Task Force http://www.nationalcenter.org/eptf.html

Environmental Protection Agency http://www.epa.gov

Environmental Science Resources http://info.er.usgs.gov/network/science/earth/ index.html

Environmental Web Directory http://www.webdirectory.com

Federal Emergency Management Agency http://www.fema.gov

Federal Environmental Law http://ceres.ca.gov/env_law/federal.html

Federal Register http://ssdc.ucsd.edu/gpo OR

Galaxy http://www.einet.net/galaxy/Community/ Environment.html

InfoMine Search Engine http://infomine.ucr.edu/

Information Center for the Environment http://ice.ucdavis.edu/

Library of Congress http://lcweb.loc.gov

Migratory Birds Treaty Act List of Birds http://migratorybirds.fws.gov/intrnltr/mbta/mbtintro.html

National Biological Information Infrastructure http://www.nbii.gov/

A-9 National Library for the Environment from CNIE http://www.cnie.org/nle/

National Marine Fisheries Service http://www.nmfs.noaa.gov/

Lady Bird Johnson Wildflower Center (formerly the National Wildflower Research Center http://www.wildflower.org/

Natural Community Conservation Planning http://ceres.ca.gov/cra/NCCP/

Natural Heritage (Association for Biodiversity Information) http://www.abi.org/

Natural Resources Conservation Service http://www.nrcs.usda.gov/

California Natural Diversity Database http://www.dfg.ca.gov/whdab/html/cnddb.html

NEPA Guidelines http://www.law.indiana.edu/envdec/a.html

NEPA Network http://www.eh.doe.gov/nepa

NOAA Fisheries http://www.nmfs.noaa.gov//

NMFS Office of Protected Resources http://www.nmfs.noaa.gov/prot_res/prot_res.html

Planning and Conservation League http://www.pcl.org/

Society for Ecological Restoration http://www.ser.org/

Society for Ecological Restoration California http://www.sercal.org/

Thomas Legislative Information http://thomas.loc.gov

Urban Ecosystems/Wildlife Newsgroup URBWLF-L [email protected]

US Army Corps of Engineers http://www.usace.army.mil

US Army Corps of Engineers Sacramento District http://www.spk.usace.army.mil/

US Bureau of Land Management http://www.blm.gov/nhp/index.htm

A-10 US Code 16 Chapter 35 http://www.law.cornell.edu/uscode/16/ ch35.html#s1531

US Code http://www.gpo.gov/congress/cong013.html

US Congressional Bills http://thomas.loc.gov AND http://www.access.gpo.gov/congress/cong009.html

US Congressional Hearing reports http://www.access.gpo.gov/congress/cong017.html

US Constitution Federal Bills http://www.law.cornell.edu/statutes.html

US Department of the Interior http://www.doi.gov

US EPA region 9 Homepage http://www.epa.gov/region9/

US Fish & Wildlife Service http://www.fws.gov

US Fish & Wildlife Service Endangered Species http://endangered.fws.gov/

US Forest Service http://www.fs.fed.us

US Government Printing Office http://www.gpo.ucop.edu

US House of Representatives http://www.house.gov

US Senate http://www.senate.gov

US Supreme Court Opinions http://www.law.cornell.edu/opinions.html

A-11 Appendix G Regional Habitat Conservation Plans Available on the Internet

A-12 Appendix G. Selected Regional HCPs and Large Project HCPs Available on the Internet (January 2004)

HCP State County Status Web Address

Roosevelt HCP (Salt River Maricopa, AZ Approved http://arizonaes.fws.gov/HCPs.htm Project) Gila

San Bruno Mountain HCP CA San Mateo Approved http://www.traenviro.com/sanbruno/sbmhcp.htm

Pacific Lumber Company (PALCO) Headwaters CA Humboldt Approved http://www.palco.com/commitment_hcp.cfm SYP/HCP

City of San Diego MSCP CA San Diego Approved http://www.sannet.gov/mscp/index.shtml

http://www.sandag.org/index.asp?projectid=97&fuse San Diego County MHCP CA San Diego Approved action=projects.detail

San San Joaquin County MSCP CA Approved http://www.sjcog.org/sections/habitat/index.php Joaquin

Western Riverside County CA Riverside Approved http://www.rcip.org/conservation.htm MSCP

Sacramento http://www.sacto.org/planning/environmental/docume Natomas Basin HCP CA Approved Sutter nts/hcp/index.html

Volusia County Sea Turtle http://volusia.org/environmental/natural_resources/se FL Volusia Approved Protection Plan (HCP) aturtles/hcp.htm

http://www.co.clark.nv.us/comprehensive_planning/E Clark County MSHCP NV Clark Approved nvironmental/MultipleSpecies/MultipleSpeciesHabitat ConservationPlan.htm

Balcones Canyonlands http://www.ci.austin.tx.us/preserves/bcp.htm OR TX Travis Approved Conservation Plan (HCP) http://www.co.travis.tx.us/tnr/bccp/default.asp

Cedar River Watershed WA King Approved http://www.cityofseattle.net/util/CedarRiverHCP/ HCP

http://www.ci.tacoma.wa.us/water/WaterSystem/habi Tacoma Water HCP WA Pierce Approved tat.htm

Plum Creek Native Fish WA, Many Approved http://www.plumcreek.com/environment/fish.cfm HCP ID, MT

A-13 HCP State County Status Web Address

Wisconsin Statewide Karner http://www.dnr.state.wi.us/org/land/er/invertebrates/k WI 23 Counties Approved Blue Butterfly HCP arner.htm

Sonoran Desert AZ Pima In Process http://www.co.pima.az.us/cmo/sdcp/ Conservation Plan (HCP)

East Contra Costa County Contra CA In Process www.cocohcp.org HCP/NCCP Costa

Yolo County HCP CA Yolo In Process www.yolocounty.org/HCP/hcp.htm

http://www.placer.ca.gov/planning/legacy/legacy- Placer Legacy (NCCP) CA Placer In Process hcp-nccp.htm

Coachella Valley MSHCP CA Riverside In Process http://www.cvmshcp.org/

Southern Orange County CA Orange In Process http://pdsd.oc.ca.gov/soccpp/ NCCP/HCP

Medocino Redwood Sonoma, CA In Process http://www.mrc.com/habitat_conservplan.html Company HCP/NCCP Mendocino

Merced County NCCP/HCP CA Merced In Process http://www.mercednccp-hcp.net/

http://cosda103.co.san- San Diego North County CA San Diego In Process diego.ca.us/portal/page?_pageid=341,1&_dad=porta MSCP l&_schema=PORTAL

Solano Water Agency HCP CA Solano In Process http://www.scwa2.com/HCP/index.html

Inyo, Kern, San West Mojave HCP CA In Process http://www.ca.blm.gov/cdd/wemo.html Bernardino, Los Angeles Lower Colorado River CA, Many In Process http://www.lcrmscp.org/ MSCP NV, AZ

Etowah Watershed Regional GA Many In Process http://www.etowahhcp.org/index.html Aquatic HCP

Montana DNRC Forested MT Many In Process http://www.dnrc.state.mt.us/hcp.htm Trust Lands HCP

A-14 HCP State County Status Web Address

King County Wastewater WA King In Process http://dnr.metrokc.gov/wtd/hcp/index.htm Treatment HCP

http://www.dnr.wa.gov/htdocs/agency/federalassuran Washington DNR HCP WA Many In Process ces/eis_hcp.html

Also see http://www.ncedr.org/casestudies/summaries.htm for summaries of many large HCPs.

A-15 Appendix H Section 10 Permit Application Form

Source: http://www.nmfs.noaa.gov/prot_res/PR3/Permits/ESAPermit.h tml

A-16 Appendix I Federal- and State-Listed Species in California

Source: http://www.dfg.ca.gov/whdab/pdfs/TEPlants.pdf (plants) and http://www.dfg.ca.gov/whdab/pdfs/TEAnimals.pdf (animals)

A-17 Understanding the Habitat Conservation Planning Process in California: a Guidebook for Project and Regional Conservation Planning

About the Authors Paul Cylinder, Ph.D., is a managing principal with Jones & Stokes and has been involved with regional habitat conservation planning efforts throughout California and the Western U.S.

Kenneth Bogdan, J.D., is environmental counsel for Jones & Stokes and specializes in analyzing issues regarding compliance with federal and state Endangered Species Acts, CEQA, NEPA, and Clean Water Act.

David Zippin, Ph.D., is an associate principal with Jones & Stokes and has managed several large habitat conservation plans and natural community conservation plans in California.