5.4 Biological Resources The biological resources analysis was based on a biological survey and memorandum prepared for the subject site by Phil Brylski, Ph.D on May 9, 2011 and is provided in Appendix C. 5.4.1 ENVIRONMENTAL SETTING Local Setting Relationship to the Orange County NCCP/HCP The Natural Community Conservation Act (the Act), codified in Fish and Game Code Sections 2800-2840 and signed into law on October 1991, authorizes the preparation of Natural Community Conservation Plan/Habitat Conservation Plans (NCCP/HCPs). The Act is a State of California effort to protect critical vegetative communities and their dependent wildlife species. Under this program, the County of Orange, other participating agencies and special districts, and participating landowners, worked with the California Department of Fish and Game (CDFG) and United States Fish and Wildlife Service (USFWS) to prepare a coastal sage scrub NCCP/HCP called the Natural Community Conservation Plan and Habitat Conservation Plan and Habitat Conservation Plan, County of Orange Central and Coastal Subregion. The NCCP/HCP was reviewed and approved by the CDFG and USFWS in 1996. It addressed protection and management of coastal sage scrub habitat and coastal sage scrub-obligate species, and other covered habitats and species, and mitigated anticipated impacts to those habitats and species, on a programmatic, subregional level, rather than on a project-by-project, single species basis. The NCCP/HCP identified development areas where impacts to species and habitats receiving regulatory coverage under the NCCP/HCP would be authorized. The HCCP/HCP was analyzed in a joint EIR/EIS prepared under the auspices of the County of Orange and the USFWS as lead agencies, while the CDFG and the City of San Juan Capistrano were responsible agencies. Following certification of the EIR/EIS and approval of the NCCP/HCP, the participating agencies, landowners, USFWS, CDFG, and the County of Orange signed an Implementation Agreement (IA). While the City was a participant in the planning phase of the NCCP/HCP, the City did not enter into the IA for the Central-Coastal Subregion. The IA sets forth: 1) the implementation requirements for the NCCP/HCP, including requirements related to dedication, creation and adaptive management of the more than 37,000- acre Reserve; 2) interim management of the Reserve; 3) funding for the Reserve management; and 4) procedures and minimization measures related to “take” of “Identified Species” and modification of habitat in those areas designated for development under the NCCP/HCP. The Project site is within the planning area covered by the NCCP/HCP and is classified as a development area. As such, any significant adverse impacts of the project to Covered1 Habitats, Special Status Species and wildlife connections for such species would need to be mitigated. 1 “Covered Habitats’ shall mean those habitat types protected by the NCCP/HCP in a manner comparable to the protection of coastal sage scrub habitat. The covered habitats are: Oak woodlands, Tecate cypress, cliff & rock, and within the coastal subarea – chaparral. Historic Town Center Master Plan EIR 5.4-1 Templeton Planning Group Special Area Management Plan (SAMP) and Master Streambed Alteration Agreement (MSAA) The U.S. Army Corps of Engineers, Los Angeles District is preparing a Special Area Management Plan (SAMP) for the San Diego Creek Watershed, which includes the Project site. The SAMP’s purpose is to develop and implement a watershed-wide aquatic resource management plan and implementation program, which will include preservation, enhancement, and restoration of aquatic resources, while allowing reasonable and responsible economic development and activities within the watershed-wide study area. The CDFG is preparing a similar watershed-wide aquatic resource management plan and implementation program in conjunction with the SAMP, called the Master Streambed Alteration Agreement (MSAA). The MSAA would address regulated activities that affect aquatic resources subject to CDFG jurisdiction. Special Status Plant and Wildlife Species Special status species are species afforded special recognition by federal, state or local resource conservation agencies, organizations and/or jurisdictions. Special status species include those listed as rare, threatened and/or endangered by resource conservation agencies such as USFWS and CDFG, and the California Native Plant Society (CNPS). Sensitive species are considered as a potential inhabitant of the Project site if its known geographical distribution encompassed part of the Project site, or if its distribution was near the site and general habitat requirements of the species were present (such as the presence of roosting, nesting, or foraging habitat, or a permanent water source). Migratory Bird Treaty Act The federal Migratory Bird Treaty Act (MBTA), 50 C.F.R. Part 10 makes it unlawful to take, possess, buy, sell, purchase, or barter any migratory bird, including their feathers or other parts, eggs, products, and nests. Historic Town Center area The HTC Project area is currently developed with residential, retail/commercial, religious, education and civic land uses and associated parking. Vegetation within the project area consists of ornamental landscaping, disturbed areas and some agriculturally-related uses (Ito Nursery and a remnant orange grove). The Project site is located between several regionally important water courses: San Juan Creek flows beneath the I-5 Freeway south of the southern end of the Repositioning Area, and Oso Creek and Trabuco Creek merge just outside of the northwestern corner of the Master Plan’s “Connectivity Area.” The San Juan, Oso, and Trabuco Creek stream courses and their associated habitats occur outside of the Project site. In addition, a small portion of Horno Creek traverses the northeast corner of the Connectivity area which is depicted as a blue-line drainage on the USGS topographic map San Juan Capistrano, California. A site survey was conducted May 2001 to assess the potential for sensitive biological resources in the Project area. The property was also surveyed for the potential presence of areas subject to Historic Town Center Master Plan EIR 5.4-2 Templeton Planning Group the jurisdiction of the Corps pursuant to Section 404 of the Clean Water Act and CDFG pursuant to Section 1602 of the California Fish and Game Code. Historic Town Center “Connectivity Area” (64 acres) The majority of the Connectivity Area is developed. However, the western part of the Connectivity Area includes the open space area of Los Rios Park and associated agricultural type land uses including a nursery and a remnant orange grove north of Ortega Highway. There are a number of coast live oak trees (Quercus agrifolia) in and around the Los Rios Street Historic District and several vacant lots with ruderal vegetation. Oso Creek and Trabuco Creek merge immediately outside the northwestern corner of the Connectivity Area. Oso Creek then runs within a concrete channel outside the western Project boundary. Horno Creek flows in a southerly direction through the northeastern corner of the Connectivity Area. The stream course contains riparian vegetation, which is considered a sensitive plant community in southern California. In general, riparian habitat supports a number of declining bird species and provides cover for other animals that may utilize the area. The Horno Creek streambed and its vegetation would be considered jurisdictional to the Army Corps of Engineers (ACOE) as wetlands and waters of the United States, and would also be regulated by the California Department of Fish and Game (CDFG) under the lake and streambed alteration agreements. Historic Town Center “Revitalization Area” (44 acres) The Revitalization Area is almost entirely developed with urban land uses. The vacant lot between Spring Street and Ortega Highway in the northeastern corner of this Area is the location of the future Plaza Banderas Hotel Project. The site visit for this area documented ruderal vegetation, a remnant orange grove with scattered oak trees, willows, and ornamental trees and shrubs. In addition, a biological resources assessment was prepared for the hotel site by Glenn Lukos Associates and incorporated into the “Plaza Banderas Hotel Project Final EIR” (SCH#2010051075) which was certified in October 2010. The assessment mapped three land cover types in the study area, as follows: 1.4 acres of urban vegetation, 1.0 acres of parks and ornamental plantings and 1.5 areas of disturbed vegetation. No special status habitat, plants or animals were observed on the project site. The assessment identified the potential for the Loggerhead shrike (Lanius ludovicianus), an avian species, a federally and CDFG listed species of special concern, to occur within the study area. Historic Town Center “Repositioning Area” (44 acres) The Repositioning Area is entirely developed with urban land uses and contains only ornamental vegetation. The small segment of Horno Creek in the northeastern corner of this area is in a concrete channel and would not be expected to support any sensitive biological resources. This Area contains no areas of natural or native habitat. Historic Town Center Master Plan EIR 5.4-3 Templeton Planning Group 5.4.2 THRESHOLD FOR DETERMINING SIGNIFICANCE According to Appendix G of the California Environmental Quality Act (CEQA) Guidelines, a project will normally have a significant adverse environmental impact on biological resources if it would: Threshold