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CC RES 1997-065RESOLUTION NO. 97 -65 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES ESTABLISHING A PROCEDURE FOR THE ISSUANCE OF COASTAL SAGE SCRUB INTERIM HABITAT LOSS [4(d)] PERMITS WHEREAS, in March 1993 the Federal government listed the coastal California gnatcatcher as a threatened species under the Endangered Species Act of 1973 (16 U.S.C. & 1531 et seq., hereinafter the "Act "). The Act makes it a violation of federal law to carry out any activity which will result in a take of the species. "Take" of the gnatcatcher, broadly defined in the Act to include harm to or harassment of the species, is prohibited; and, WHEREAS, the U.S. Fish and Wildlife Service ( "USFWS ") has promulgated a special rule under Section 4(d) of the Act, which will allow incidental take of the species if such take results from activities which are conducted pursuant to the State of California's Natural Community Conservation Planning Act of 1991 ( "NCCP ") and in accordance with an approved NCCP plan prepared consistant with the State's NCCP Conservation and Process Guidelines published by the California Department of Fish and Game ( "CDFG "), if within an area under the jurisdiction of a local government agency which is enrolled and actively engaged in the preparation of an NCCP plan. The special rule became effective on December 10, 1993; and, WHEREAS, on August 19, 1992, the City of Rancho Palos Verdes enrolled as participant in the NCCP Program and on February 20, 1996, the City of Rancho Palos Verdes entered into an NCCP Planning Agreement with the USFWS and CDFG, in which the City agreed to act as lead agency in preparation of an NCCP for the Palos Verdes Peninsula; and . WHEREAS, the NCCP Conservation Guidelines and Process Guidelines call for the regulation of all coastal sage scrub within the region, and establish a planning process for the protection of this habitat. The Guidelines further provide a process for issuance of Interim Habitat Loss Permits which local government agencies may adopt. Because the City of Rancho Palos Verdes has formally enrolled in the NCCP process for the protection of the coastal sage scrub within the area under its jurisdiction, under the special rule promulgated under Section 4(d), incidental take of the gnatcatcher would not be a violation of the Act if authorized by an Interim Habitat Loss Permit issued by the City of Rancho Palos Verdes pursuant to the NCCP Conservation Guidelines and Process Guidelines; and, WHEREAS, without such an Interim Habitat Loss Permit process under Section 4(d), no development of habitat occupied by the gnacatcher may occur unless authorized under Sections 7 or 10(a) of the Act. Section 7 and 10(a) of the Act set forth a permitting process which can take several years to complete. Failure to adopt an Interim Habitat Loss Permit process, thus requiring that proposed land development applications proceed under Section 7 and 10(a) processes, would halt all progress of development of occupied habitat in the region for a substantial time; and, WHEREAS, Section 7 and 10(a) of the Act only regulate occupied coastal sage scrub habitat. The NCCP process contemplates protection of all coastal sage scrub habitat, whether occupied or unoccupied by the gnatcatcher, which will result in protection of many species in addition to the coastal California gnatcatcher; and, WHEREAS, regulation of impacts to coastal sage scrub within the City of Rancho Palos Verdes is necessary because the Section 4(d) rule allows only 5% of all coastal sage scrub remaining in the sub - region to be disturbed. The preservation of the public peace, health and safety require that projects which impact coastal sage scrub be reviewed in terms of impacts to this regional resource, not individually, and that no more than 5% of all coastal sage scrub in the sub - region be taken pursuant to the Section 4(d) rule. WHEREAS, in February 1996, the City of Rancho Palos Verdes entered into a Planning Agreement with the USFWS and CDFG to formally begin the preparation of a subregion NCCP for the Palos Verdes Peninsula; and by being the first and, thus far, the only City on the Peninsula to formally enter into an agreement with the resource agencies, the City has taken the lead in the preparation of the PVP NCCP and has contributed both time and money toward its implementation. As further evidence of the City's commitment to habitat preservation, in December 1996, the City purchased' a 160 acre, privately owned, development site for preservation, with funding from outside revenue sources. The site contains some of the best quality coastal sage scrub on the Peninsula, and the City intends to use this critical property as the cornerstone of the NCCP habitat preserve. Because of the NCCP Planning Agreement between the City and the resource agencies, the City is able to benefit from the Interim Habitat Loss provisions created by the federal government's "Special Rule ". The conditions under which this authorization applies, and the procedures for how local jurisdictions should process applications for habitat loss, are described in the State's NCCP Process Guidelines. Notwithstanding the State Guidelines, in order to provide property owners within the City with a clear set of local rules and procedures for processing Interim Habitat Loss Permits, the City of Rancho Palos Verdes has adopted its own Interim Habitat Loss Permit Process Guidelines. Although these local Guidelines are based on the State NCCP Guidelines, they also take into account the unique natural conditions found within the City of Rancho Palos Verdes. Resolution No. 97 -65 Page 2 of 3 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RANCHO PALOS VERDES DOES HEREBY FIND, DETERMINE, AND ORDAIN AS FOLLOWS: Section 1. That the Council hereby establishes an "NCCP" Program Interim Habitat Loss [4(D)] Permit Process as described in Exhibit "A" of this Resolution. Section 2. That until such time as a final NCCP /habitat preservation plan is adopted by the City and the resource agencies for the local implementation of the NCCP program, the City's Interim Habitat Loss Permit Process shall be in effect. PASSED, APPROVED AND ADOPTED this 1st day of July, 1997. �. MA O �/U STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss CITY OF RANCHO PALOS VERDES ) I, Jo Purcell, City Clerk of the City of Rancho Palos Verdes, hereby certify that the above Resolution No. 97 -65 was duly and regularly passed and adopted by the said City Council at a regular meeting held on July 1, 1997.; ; f 7 ti i' City Clerk N:\ GROUP \PLANNING \RESOS \CC \4(D).RES Resolution No. 97 -65 Page 3of3 EXHIBIT "A" City of Rancho Palos Verdes NATURAL COMMUNITIES CONSERVATION PLAN (NCCP) INTERIM HABITAT LOSS PERMIT PROCESS GUIDELINES ADOPTED: July 1, 1997 BACKGROUND On March 25, 1993, the federal government listed the California gnatcatcher as a threatened species under the Endangered Species Act. Any take (harm or harassment) of the gnatcatcher is regulated by the U.S. Fish and Wildlife Service (USFWS). The State of California initiated the Natural Communities Conservation Planning (NCCP) program in recognition of the need for conservation of the coastal sage scrub (CSS) habitat community to avoid the need for future Federal and State listings of CSS dependent species. In recognition of the NCCP, on December 10, 1993 the federal government published a special Endangered Species Act (ESA Section "4(d) rule" to provide limited,: incidental take (that is, the take is incidental to, and not the purpose of, an otherwise lawful activity) of gnatcatchers, and up to a five percent cumulative loss of coastal sage scrub habitat during the NCCP preparation process. The Interim Habitat Loss provisions in the 4(d) rule are outlined in the State's NCCP Process Guidelines. The Interim Habitat Loss Permit Process will allow the City to review and approve projects with incidental take, subject to findings, during the interim period. The five percent cumulative loss limit is applicable only to CSS habitat. It should be noted that if there is a federally - listed species, applicants may elect at the outset, or at any time during the process, to pursue approval through the ESA Sections 7 (if there is a federal nexus) or 10(a), instead of using the 4(d) process. However, any loss of CSS would still be counted against the City's allowable five percent take. Additionally, any governmental agency, public utility, or person may voluntarily submit an application for a Interim Habitat Loss Permit. If the applicant has coastal sage scrub habitat that is not occupied by gnatcatchers or other listed species, the applicant must, by the terms of the NCCP Guidelines and the ESA 4(d) Rule, use the 4(d) process in order to impact or remove coastal sage scrub. Resol No. 97 -65 Interim Habitat Loss Permit Process Page 1 INTRODUCTION In February 1996, the City of Rancho Palos Verdes (RPV) City Council voted unanimously to enter into a Planning Agreement with the California Department of Fish and Game and the U.S. Fish and Wildlife Service to formally begin the preparation of a subregional NCCP for the Palos Verdes Peninsula (PVP) Subarea. By being the first and, thus far, the only City on the Peninsula to formally enter into an agreement with the resource agencies, the City has taken the lead in the preparation of the PVP NCCP and has contributed both time and money toward its implementation. Thus far, the City has budgeted almost $150,000, and has spent $35,000, from its General Fund toward the planning and implementation of the subarea NCCP. In addition, the City has hired an outside consultant to begin preparation of the City's NCCP, and for the last 2 years, the City has hosted monthly meetings of an NCCP planning group, made up of major landowners, local government, state and federal agency, and environmental organization representatives, to help guide the subarea NCCP. As further evidence of the City's commitment to habitat preservation, in December 1996, the City combined its L. A. County Regional Park and Open Space District funds with other outside revenue sources and purchased a 160 acre, privately owned, development site for preservation. The site contains some of the best quality coastal sage scrub on the Peninsula, and the City intends to use this critical property as the cornerstone of the NCCP habitat preserve. Since the City has an executed NCCP Planning Agreement with the resource agencies, the City is able to use the Interim Habitat Loss provisions created by the federal government's "Special Rule" discussed earlier. The conditions under which this authorization applies, and the procedures for how local jurisdictions should process applications for habitat loss, are described in the State's NCCP Process Guidelines. Notwithstanding the State Guidelines, in order to provide property owners within the City with a clear set of local rules and procedures for processing Interim Habitat Loss Permits, the City of Rancho Palos Verdes has adopted its own Interim Habitat Loss Permit Process Guidelines. Although these local Guidelines are based on the State NCCP Guidelines, they also take into account the unique natural conditions found within the City of Rancho Palos Verdes. The goals and objectives of the City of Rancho Palos Verdes' Interim Habitat Loss Permit Process Guidelines are as follows: To maintain the existing natural vegetation of the City in its natural state to the maximum extent possible in all existing and proposed developments, to the extent commensurate with good fire protection policies and to encourage the re- establishment of appropriate native plants. This objective, which is also a goal identified in the City's General Plan, is achieved, in part, by the strict interim loss permit review criteria contained in the guidelines, which ensures that CSS habitat losses are minimal (less than 5% of the total known habitat) and that habitat connectivity and high value habitat are protected. The objective is also achieved by the guidelines' interim mitigation requirements, which require that all CSS habitat losses be mitigated to insignificant levels, and which allow applicants to post a bond to guarantee that habitat enhancement is carried out in a manner that will ensure its long term viability. The mitigation guidelines will assure establishment of the appropriate native vegetation, and ensure that the total amount of habitat within the City is increased. This will be reflected in adjusted baseline acreage and 5% allocation totals. Interim Habitat Loss Permit Process Page 2 To establish a review process which preserves habitat areas while also balancing the needs for development and growth in the community. This objective is met by the exemption process contained in the City's guidelines which allows certain minor projects to move forward without the need for an interim habitat loss permit if the project results in a habitat loss that is less than 1 acre, involves low or medium value habitat that is outside of potential preserve planning areas, and would not otherwise preclude preserve design. To establish a review process which is consistent with one of the goals identified in the City's General Plan, which is "to provide for the protection of life and property from both natural and man -made hazards within the community ". As described in the City's General Plan, because of the unique environmental conditions found on the Palos Verdes Peninsula, the City of Rancho Palos Verdes contains numerous natural hazards, including, but not limited to: 1) areas of high fire hazard; 2) areas of potential flood and inundation hazards; and, 3) numerous landslide areas, including the Portuguese Bend Landslide System, one of the largest and most publicized landslides in the nation. The City's guidelines take these unique hazards into account by allowing habitat losses associated with health and safety orders, such as fire breaks and landslide stabilization projects, to be exempt from the 4(d) permit process. Likewise, habitat losses which result from natural events such as fire, flood and landslide do not require mitigation and do not count toward the City's 5% loss allocation. To establish a review process which involves consultation and coordination with the applicable federal and state resource agencies. This objective is achieved by the numerous resource agency consultation requirements contained in the guidelines, which ensure: 1) that losses to occupied habitat resulting from public safety orders be coordinated with the USFWS, even though such losses are exempt from the 4(d) Permit process; 2) that all environmental documentation involving 4(d) permit requests which are being considered prior to CEQA review be distributed to USFWS and CDFG; 3) that notice of the City's action and findings on 4(d) permit requests be provided to USFWS and CDFG for their review and concurrence; 4) that City consultation with the resource agencies occur as early as possible for 4(d) permit requests which involve intermediate and high value habitat; and 5) that bonds posted by an applicant to ensure the long term viability of enhanced habitat not be released until the resource agencies are consulted with. INTERIM HABITAT LOSS PERMIT APPROVAL PROCESS The following procedures are based on the State's NCCP Process Guidelines, as required by the 4(d) Special Rule, but also take into account the unique natural conditions found within the City of Rancho Palos Verdes. The Interim Habitat Loss Permit Process must be applied to all development, grading, or disturbance of coastal sage scrub, other related gnatcatcher habitat, or linkages considered critical to the future habitat preserve design. As stated in the NCCP Process Guidelines Section 4.2, page 10, "applications for interim habitat loss permits are limited to projects proposed to proceed with grading in the near term." This process will follow one of two review processes, depending on the status of the Resol. No. 97 -65 Interim Habitat Loss Permit Process Page 3 discretionary approval and environmental documentation at the time the project is submitted for an Interim Habitat Loss Permit. The two processes are noted as: 1) Prior to Discretionary Approval (Pre -CEQA Review); and 2) After Discretionary Approval (Post- CEQA Review). A. HABITAT LOSS EXEMPT FROM THE PERMIT APPROVAL PROCESS The following projects are exempt from the interim habitat loss [4(d) Rule] approval process: 1) All projects that occur in low value habitat or medium value habitat that is outside of potential preserve planning areas, which: a) cause the loss of less than 1.0 acres of coastal sage scrub habitat that is not occupied by California gnatcatchers; and b) would not otherwise preclude design of the preserve system. Mitigation for these projects will conform with all other underlying resource protection requirements of the jurisdictions, an enrolled jurisdiction's 4(d) guidelines or the guidelines provided in the joint DFG /USFWS letter of December 30, 1993, and CEQA. All losses of coastal sage scrub must be reported to the City and be counted toward the subarea 5% loss allocation. However, coastal sage scrub shall not be counted toward the 5% loss allocation for those minor projects (less than 1.0 acres) whose development poses a minimal risk to overall coastal sage scrub conservation if they meet the above habitat criteria and can show that the project mitigation contributes to the regional conservation effort. 2) Coastal sage scrub losses that are the result of local, County, State or Federally mandated health and safety orders. Examples of such orders include but are not limited to: a) weed abatement for fire prevention purposes; b) City /RDA projects within the landslide moratorium area which are undertaken for landslide stabilization purposes; and c) any emergency measure necessary to eliminate or reduce an imminent threat to life or property. Habitat that is occupied by California gnatcatchers or other federally listed species that will be disturbed by these orders should be coordinated with the USFWS to ensure compliance with the Endangered Species Act. These losses shall not require mitigation and shall not be counted toward the subregional 5% loss allocation. 3) Coastal sage scrub losses that are the result of natural events such as fire, flood or landslide. These losses shall not require mitigation and shall not be counted toward the subregional 5% loss allocation. B. SUBMITTAL OF INTERIM HABITAT LOSS PERMIT REQUESTS Formal requests for an Interim Habitat Loss Permit will not be accepted by the City prior to the submittal of entitlement applications for a particular development project. Once entitlement applications are submitted, formal requests for an Interim Habitat Loss Permit may be made at any time in the project review process. However, it is strongly recommended that such requests be submitted at the earliest possible time in the review process. The City will encourage requests to be processed, to the extent possible, in Interim Habitat Loss Permit Process Page 4 conjunction with the City's discretionary development entitlement process. This review process includes CEQA review, as authorized by the California Environmental Quality Act and the State and Local CEQA Guidelines. Prior to Discretionary Approval or CEQA Review If it is determined during the CEQA review process that CSS habitat exists on a site, the biological impact analysis shall include a biological report that determines habitat loss and conservation value (i.e. High, Intermediate, Lower) of the CSS. Said biological determinations shall be made pursuant to the NCCP Process Guidelines and by using site - specific data. A mitigation plan should then be developed consistent with the attached Mitigation Guidelines. If the habitat value is determined to be high or intermediate, the mitigation plan should be developed, if possible, in consultation with the U.S. Fish and Wildlife Service. The environmental document should include sufficient information to permit an analysis of the project's consistency with the NCCP Conservation Guidelines and draft Findings as required by the NCCP Process Guidelines. These draft NCCP Findings must be prepared, or a statement of why they cannot be made must be provided, for circulation with the draft environmental document. In situations where a project may have completed CEQA public review but not yet received discretionary approval, and the applicant wants to pursue an Interim Habitat Loss Permit, the analysis of the project's consistency with the NCCP Conservation Guidelines shall be compiled as a separate report and provided to the City. After Discretionary Approval or CEQA Review If a project has completed CEQA review or has received discretionary entitlements or approvals from the City, an Interim Habitat Loss Permit request may be made at any time prior to the applicant's submittal for a grading permit or public improvement/construction plan check. The Interim Habitat Loss Permit request will be evaluated for consistency with the NCCP Findings and Conservation Guidelines. If the biological information is not adequate to address the NCCP findings and /or the mitigation plan is not adequate, a separate biological information package, containing the information outlined above must be submitted to the City. If no project design /permit revisions are required but it appears that minor changes may be required to the mitigation plan or environmental analysis to support making the NCCP Findings, the existing adopted mitigation plan or related documents will be revised, as necessary, and the additional analysis to support the NCCP Findings will be provided to the City and the resource agencies. All such revisions will be reviewed in accordance with CEQA. Resol. No. 97 -65 Interim Habitat Loss Permit Process Page 5 If it appears that major revisions to the project design are necessary to support the NCCP Findings, the project must: 1) be redesigned or provide additional /enhanced mitigation to be consistent with the findings; or 2) pursue approval from the USFWS through the ESA Section 10(a) or Section 7 process, if the project involves listed species. C. PUBLIC REVIEW Prior to Discretionary Approval or CEQA Review The project plans, draft NCCP Findings and associated environmental documentation will be distributed for review to the USFWS (by certified mail), CDFG (by certified mail), affected jurisdictions and the public prior to the City's decision on the project. The public review should occur concurrently with the CEQA public review to the extent possible. Projects impacting intermediate and high value CSS habitat should involve USFWS early in planning stages to avoid unnecessary delays during the final approval process. After Discretionary Approval or CEQA Review No additional public review is required for projects that have discretionary approval and only require minor modifications to draft NCCP findings (see Section D). Projects which require major changes for consistency with the NCCP Findings may be subject to project redesign, permit amendments and additional environmental review. As an alternative, the project applicant may choose to go through the Federal ESA Section 10(a) or Section 7 Process, if applicable. D. FINDINGS /PUBLIC HEARING 1. Findings: Except as provided in Section A, the following findings must be made by the City Council in order to approve any Interim Habitat Loss Permit request, as outlined in the NCCP Process Guidelines. For applicants which apply for an Interim Habitat Loss Permit in conjunction with other discretionary permits, the following findings will be made in addition to any other permit findings. For projects that have already undergone the CEQA public review process or have already received discretionary approval, these findings must still be made by the City, and sent to CDFG and USFWS for concurrence: a. The proposed habitat loss is consistent with the interim loss criteria in the NCCP Conservation Guidelines and with any subregional process if established by the subregion. The habitat loss does not cumulatively exceed the five percent guideline. 2) The habitat loss will not preclude connectivity between areas of high habitat value. Interim Habitat Loss Permit Process Page 6 3) The habitat loss will not preclude or prevent the preparation of a NCCP final preserve plan. 4) The habitat loss has been minimized to the maximum extent practicable. b. The habitat loss will not appreciably reduce the likelihood of survival and recovery of the listed species in the wild. c. The habitat loss is incidental to otherwise lawful activities. 2. Public Hearing: Prior to Discretionary Approval or CEQA Review All Interim Habitat Loss Permit requests shall be acted upon by the City Council as part of a public hearing. The public hearing for the Interim Habitat Loss Permit may be consolidated with any other City Council hearings required for the related discretionary permits. If the proposed project is found NOT to be consistent with the required NCCP Findings, the City may do the following: a. For projects with CSS habitat that is not occupied by the gnatcatcher or other listed species: 1) Deny the project, unless application of the interim loss process would deny all reasonable use of the property. b. For projects with CSS habitat that is occupied by the gnatcatcher or other listed species: 1) Deny the project; or 2) Approve the project with a condition that prior to the issuance of a grading permit (or approval of public improvement/construction plan) the applicant will be required to provide to the City evidence of authorization from the U.S. Fish and Wildlife Service that the interim take is permitted. This may be in the form of an ESA Section 10(a) permit or through a Section 7 consultation, or other USFWS authorization. If the project is found to be consistent with the NCCP Findings, the City must adopt the mitigation plan as part of the project approval. It should be noted that the project is not authorized to proceed until the review as described under Section F is completed. After Discretionarypproval or CEQA Review If discretionary approvals have been obtained and only minor changes are necessary to complete the NCCP requirements, a separate public hearing for the findings will not be required. In these situations, the Interim Habitat Loss Permit request shall be acted on by the City Council. Resol. No. 97 -65 Interim Habitat Loss Permit Process Page 7 If discretionary approvals have been obtained but major revisions to the project design /permit are necessary to make the NCCP findings, the project will be required to 1) go through the same discretionary process for approval of the redesigned project as was done for the original approval; or 2) seek approval of the original project through the Federal ESA Section 10(a) or Section 7 Process, if applicable. E. INTERIM MITIGATION Impacts to the CSS habitat and the target species must be mitigated to insignificant levels as required by CEQA, in accordance with the NCCP Process Guidelines and the City's Interim Habitat Loss Mitigation Guidelines (attached). Appropriate mitigation shall be identified in a mitigation plan prepared by the applicant. The applicant must demonstrate capacity for funding appropriate mitigation and the mitigation must be legally assured. F. RESOURCE AGENCY REVIEW AND CONCURRENCE Prior to Discretionary Approval or CEQA Review After approval of the project, the City must post a public notice of its decision in the office of the County Clerk. The City must also notify the USFWS and CDFG of its action and findings. The notification must include project and biological information, the environmental document, the NCCP Findings, the mitigation plan, and delineation of the project boundaries on a 7.5- minute U.S. Geological Survey (USGS) quadrangle map and City 800' (minimum) scale map. Per Section 4.4 c of the NCCP Process Guidelines, the USFWS, in close consultation with the CDFG, would normally review the project for consistency with the NCCP Conservation Guidelines, and the City's NCCP Mitigation Guidelines. The determination of consistency must be made by USFWS within 30 days of receipt of the notice. If found inconsistent, the USFWS and /or CDFG must notify the City of the inconsistency within the 30 -day period and within the following 60 days, provide recommendations for modifying the project or mitigation to eliminate the inconsistency. As stated by Section 4.4 c of the State Guidelines, "the project may not proceed until the USFWS concurs that the project, as modified is consistent with the NCCP Conservation Guidelines and mitigation guidelines. If the City approves the permit, but USFWS does not concur with the City's determination, the City shall not be deemed to have rejected the permit; provided, however, that until USFWS concurs with the issuance of the permit and the permit is issued, the City shall not issue a grading permit for the project. Any legal proceeding which is filed to challenge the failure to issue a permit that USFWS has determined is not consistent, must name USFWS as a defendant in such proceeding, since it was the determination of USFWS that prevented the issuance of the permit. If no determination of consistency is provided by either USFWS or CDFG to the City within 30 days, the project is deemed approved and can proceed with the Interim Habitat Loss Permit Process in conjunction with the grading permit review. Interim Habitat Loss Permit Process Page 8 After Discretionary Approval or CEQA Review For projects submitted for plan check that only require minor modifications to the environmental analysis and /or mitigation plan to support the NCCP Findings, the agency review of the mitigation plan and findings will be 45 days. A project description, map, and if needed, a copy of the certified environmental document will be provided as background information to the agencies. If the project is found to be consistent and the findings can be made, (i.e. no notification is received from the resource agencies by the end of the review period) the Interim Habitat Loss Permit will be deemed approved by the resource agencies and the City can proceed with issuance of the Interim Habitat Loss Permit. If USFWS does not find that the project is consistent, the agencies must provide comments within an additional 15 days, for a total review period of 60 days. As noted above, projects that completed CEQA public review and have previous discretionary approval but require major revisions to the environmental mitigation plan and /or associated permits to meet the NCCP requirements, will be required to go through the discretionary review /hearing process again or seek Federal permits, if applicable. G. INTERIM HABITAT LOSS PERMIT /GRADING PERMIT In conjunction with the established City review of grading permits (or public improvement plans /construction plans for City public projects), a project will be reviewed (plan checked) for substantial conformance with its approved permit, plans and /or tentative map. The plan check will include a calculation to ensure that the five percent cumulative loss has not been exceeded. The Interim Habitat Loss Permit is valid for one year from the date of issuance by the City. No automatic extensions on grading permits will be issued without a recheck of the cumulative five percent loss. H. PROJECT PRIORITIZATION The following is the prioritization of projects: 1. City or RDA proposed public projects which have been determined by the City Manager or the City Council to provide a substantial public benefit. A reservation of 10 acres of the allowable (5 %) coastal sage scrub loss will be set aside for these projects. 2. Public projects proposed by other public agencies which have been determined by the City Manager or the City Council to provide a substantial public benefit. A reservation of 2 acres of the allowable (5 %) coastal sage scrub loss will be set aside for these projects. 3. Private projects which have obtained planning entitlements for development. Priority among these projects shall be given to projects which can demonstrate to the City the ability to grade and construct within six months of the Interim Habitat Loss Permit request. Resol. No. 97 -6S Interim Habitat Loss Permit Process Page 9 4. Private projects that have requested priority for the 5% loss, have been determined by the City Manager or the City Council to provide substantial economic benefit to the City, and have demonstrated to the City the ability to grade and construct within six months of the discretionary approval. (An additional three month extension may be granted by the City Manager for non - expedited projects). The Interim Habitat Loss allocation will expire at the end of six months (nine months if an extension is granted) if the project has not commenced substantial construction. The amount of citywide anticipated habitat loss will then revert back to remaining 5% allocation. 5. All other projects, on a first come, first served basis. I. ACCOUNTING OF INTERIM HABITAT LOSS The City will maintain an accounting of interim acreage loss and gains. The accounting shall be divided into the following three categories: 1. Acreage proposed for loss. This shall include all acreage loss that is proposed to occur, based on project entitlements that have been obtained by a property owner, but has not been approved to occur by the City through a formal Interim Habitat Loss Permit. Although "acreage proposed for loss" will be accounted for, no Interim Habitat Loss Permit will be issued for such loss if the loss would exceed the 5% interim cap. 2. Acreage approved for loss via a formal Interim Habitat Loss [4(D)] Permit. This shall be limited to habitat loss permitted to occur by an Interim Habitat Loss Permit that has been approved by the City and the applicable resource agencies. Once the Interim Habitat Loss Permit and grading permit for a project are issued by the City, City Staff will record the CSS loss and provide loss reports to USFWS on a quarterly basis. The City shall also forward adjustments of totals if approvals expire. 3. Acreage actually taken or lost. This shall include the actual habitat loss that has occurred as a result of: a) an approved Interim Habitat Loss Permit; b) an approved Habitat Conservation Plan; c) actions that are exempt from the Interim Habitat Loss Permit Process, and d) removal of coastal sage scrub by private property owners without proper authorization or permits. J. ACCOUNTING OF INTERIM HABITAT GAIN THROUGH ENHANCEMENT The NCCP Process Guidelines and the City's Interim Habitat Loss Mitigation Guidelines (attached) provide a list and /or discussion of acceptable options for mitigating impacts. One of the acceptable mitigation measures is the replacement, creation, enhancement or restoration (hereinafter "enhancement ") of coastal sage scrub habitat. Given that such mitigation will result in no net loss to the long -term viability of the species, the enhancement of habitat acreage that is undertaken within the interim period will be added to the City's acreage totals, provided the following conditions are met: Interim Habitat Loss Permit Process Page 10 1) The enhancement of habitat is part of a mitigation plan that has been approved by the City and the applicable resource agencies through the Interim Habitat Loss [4(d)] Permit process, or is part of an approved mitigation plan for a project that is exempt from the Interim Habitat Loss Permit process, pursuant to Section Al of these Guidelines; 2) The applicant posts a bond, in an amount to be determined by the City in consultation with the resource agencies, to guarantee that the habitat enhancement will be carried out in a manner that will ensure the viability of the habitat. Said bond shall be posted for a minimum period of 5 years and may be required for a longer period at the City's discretion, in consultation with the resource agencies. In no event will the bond be released until the City, in consultation with the resource agencies, is satisfied that the enhanced habitat is viable. Habitat acreage that is enhanced as specified herein will be credited to the City's acreage totals as follows: 1) An acreage amount equal to the initial habitat loss shall be recredited and added back to the 5% allocation total once the habitat is viable or bonding is provided; and 2) The newly enhanced acreage shall be added to the baseline acreage total once the habitat is viable or bonding is provided. For example, if the baseline acreage total is 1,000 acres of habitat, the 5% allocation total is 50 acres. In this situation, if a project results in a 2 acre loss of habitat, the loss will be counted against the 5% allocation total, leaving 48 acres of habitat for future interim impacts. If mitigation for the same project is approved which requires a 2:1 ratio of habitat enhancement or 4 acres, 2 acres (the original loss) would be credited toward the 5% allocation total (bringing this back up to 50 acres) and the newly enhanced 2 acres would be credited toward the baseline acreage total (bringing this up to 1,002 acres). Due to the adjustment in the baseline acreage total (1,000 acres to 1,002 acres), the 5% allocation total would then be adjusted to 50.1 acres (5% of 1,002 acres). K. COST RECOVERY In order to recover the cost for the City's review of an Interim Habitat Loss Permit request with the 4(d) Rule /Interim Habitat Loss Permit Process, the applicant shall establish a Trust Deposit with the City. The initial amount of the Trust Deposit shall be $1,000 to $5,000, depending on the complexity of the Permit request, and may have to be supplemented with additional deposits. The actual amount shall be determined by the Director of Planning, Building and Code Enforcement. All City Staff time expended in issuing the Interim Loss Permit shall be charged against said Trust Deposit. Resol. No. 97 -65 Interim Habitat Loss Permit Process Page 11 L. TERMINATION OF INTERIM PERIOD Upon approval of the final NCCP /MSCP habitat preserve plan by the City, CDFG, and USFWS, the interim period and 4(d) special rule will terminate. The rules for interim loss will then be replaced by the habitat loss provisions contained in the final NCCP /MSCP plan. Interim Habitat Loss Permit Process Page 12 DEFINITIONS USFWS - United States Fish and Wildlife Service CDFG - California Department of Fish and Game Section 4(d) Special Rule.- A section of the federal Endangered Species Act that allows special rules to apply to a species listed as "threatened ", including conditions allowing incidental take. Section 7 - A section of the federal Endangered Species Act that governs issuance of a permit to allow incidental take of a listed "endangered " or "threatened" species when a federal nexus (federal dollars or involvement) is involved. Section 10(a) ' - A section of the federal Endangered Species Act that governs issuance of a permit to allo incidental take of a listed "endangered" or "threatened" species. NCCP - Natural Community Conservation Plan prepared pursuant to the State of California's Natural Communities Conservation Planning Act. MSCP - Multiple Species Conservation Program being conducted by the Clean Water Program for the Metropolitan Sewerage System. Coastal Sage Scrub Habitat - A vegetation community composed of relatively low- growing summer deciduous and succulent plants. Characteristic plants of this community include coastal sagebrush, various species of sage, California buckwheat, lemonadeberry, prickly pear and cholla cactus. Coastal sage scrub is the more general name for vegetation communities also known as maritime succulent scrub, Diegan (or Riversidian) sage scrub, southern coastal bluff scrub, inland sage scrub, alluvial fan scrub, and mixtures of vegetation communities containing coastal sage elements and providing gnatcatcher habitat. California gnatcatcher (Polioptila californica) - A small insectivorous songbird which inhabits almost exclusively the coastal sage scrub plant community although it is also found in other plant communities. Its historic range is southern California and Northwestern Baja California, Mexico. The continued existence of the species is threatened by habitat loss and fragmentation occurring in conjunction with urban and agricultural development. Interim Habitat Loss - The amount of coastal sage scrub /gnatcatcher habitat, not to exceed five percent, that may be lost until a final NCCP /MSCP habitat preserve plan is approved. Subregional Lead /Coordinating Agency - Agency responsible for the collection of monthly coastal sage scrub "loss" totals from each local jurisdiction to provide a monthly report to the USFWS and CDFG. Resol. No. 97 -65 Interim Habitat Loss Permit Process Page 13 City of Rancho Palos Verdes Interim Habitat Loss Mitigation Guidelines July 1, 1997 I. Introduction and Backaround On March 25, 1993, the federal government listed the California gnatcatcher as a threatened species under the Federal Endangered Species Act (ESA). Any take (harm or harassment) of the gnatcatcher is now regulated by the U.S. Fish and Wildlife Service. The State of California has initiated the Natural Community Conservation Program (NCCP) in recognition of the need for the conservation of the coastal sage scrub (CSS) community to avoid future federal and state listings of CSS- dependent species. The Multiple Species Conservation Program (MSCP) has been accepted by the State as an equivalent to an NCCP program. The federal government has seen the value of this program and has adopted a "special rule" under Section 4(d) of the ESA to provide incidental take of gnatcatchers and limited loss of CSS habitat (up to 5 percent per jurisdiction) while the NCCP /MSCP is being completed. The 4(d) rule is tied specifically to the NCCP and requires mitigation for all coastal sage scrub habitat regardless of occupation by gnatcatchers. Habitat loss is subject to seven findings contained in the NCCP Process Guidelines and relates to the project's effect on the preparation of a regional habitat preserve system. The following mitigation guidelines have been developed to comply with the mitigation requirements of the NCCP /4(d) Rule, as found in the published final 4(d) rule, and the NCCP Process and Conservation Guidelines and will be applied to projects going through the 4(d) /Interim Habitat Loss Permit Process. The guidelines are separated into two parts: general guidelines and more specific mitigation guidelines. Projects providing mitigation in accordance with these guidelines may qualify for authorization for take of gnatcatchers or loss of CSS habitat under the 4(d) Rule and avoid the need for other permits (e.g. ESA Section 10A). It should again be noted that these guidelines are specific for the 4(d) /Interim Habitat Loss Permit process for CSS habitat loss and gnatcatcher take and do not replace existing City and Federal regulations and mitigation guidelines for other sensitive habitats. Per Section 4.3 of the State's NCCP Process Guidelines "Any impacts to the coastal sage scrub habitat and the target species must be mitigated to insignificant levels as required by the California Environmental Quality Act (CEQA) ... Appropriate mitigation must be identified in a mitigation plan prepared by the applicant." Therefore, if a project does not mitigate to an insignificant level, the project may not qualify for a take or habitat loss under 4(d), as it is expected that the NCCP Findings could not be made under the 4(d) rule. In this situation, if the project is approved by the City, a condition of approval would be added to require authorization from the U.S. Fish and Wildlife Service (USFWS) prior to issuance of grading permits. Interim Habitat Loss Permit Process Page 14 II. General Mitigation Guidelines for Interim Habitat Loss The following guidelines are based on the NCCP Process and Conservation Guidelines and a letter from the California Department of Fish and Game, dated December 30, 1993, which provides clarification of the NCCP Interim Process. A. Mitigation is required for impacts occurring to coastal sage scrub habitat and other gnatcatcher habitat. Coastal sage scrub is a vegetation community composed of relatively low - growing summer deciduous and succulent plants. Characteristic plants of this community include coastal sagebrush, various species of sage, California buckwheat, lemonadeberry, prickly pear and cholla cactus. Coastal sage scrub is the more general name for vegetation communities also known as maritime succulent scrub, Diegan (or Riversidean) sage scrub, southern coastal bluff scrub, inland sage scrub, alluvial fan scrub, and mixtures of vegetation communities containing coastal sage elements and providing gnatcatcher habitat. B. Impacts should be directed to lower value habitats; impacts to intermediate value habitat may require special mitigation; and impacts to higher value CSS habitat should be deferred to the maximum extent possible during the interim period while long -term planning is underway. C. Impacts to CSS and other gnatcatcher habitat may be allowed if findings are made that the losses are to small populations (as defined by the NCCP Conservation Guidelines Section 5.a.3 and 5.c.6) that are not critical to the continued viability of the (sensitive) species to be lost. D. Mitigation for impacts to target and listed species must result in no net loss to the long- term viability of the species, or to the value and function of habitat important for long -term maintenance of the species within the NCCP Plan area. No net loss of habitat value means no net reduction in the ability of the NCCP subregion to maintain viable populations of target species over the long -term. Mitigation should be directed toward areas, and be in adequate amounts, to serve these objectives. E. The overall purpose of the NCCP cited on Page 1 of the NCCP Process Guidelines states: "The purpose of the Natural Community Conservation Planning program is to provide for regional protection and perpetuation of natural wildlife diversity while allowing compatible land use and appropriate development and growth." To achieve this purpose, mitigation should be directed toward areas that meet the following criteria: 1. Ensure the continued existence of CSS dependent wildlife and plant species by preserving large, interconnected blocks of native habitat and minimizing the isolation of high and intermediate value lands. 2. Exhibit an ability to support a high density and richness of target species. Resol. No. 97 -65 Interim Habitat Loss Permit Process Page 15 3. Serve to provide a representative sample of the rich biological diversity of the region, in self- sustaining, functional ecosystems and landscapes. 4. Provide functional wildlife corridors and habitat linkages between biological resource areas. 5. Exhibit the capability to add to the vegetative diversity of the overall preserve system, including areas with rare species or habitat types in small, but functional patches. 6. Minimize the amount of edge -to -area ratio and the interface between development and biological resource areas, and maximize buffering from disturbance, fragmentation, and intensive land uses. 7. Exhibit characteristics or biological values equal to or greater then the habitat being lost. F. In some cases, restoration or enhancement of CSS and other gnatcatcher habitat or payment into a habitat acquisition fund may be considered appropriate mitigation. III. _Specific Mitigation Guidelines The NCCP has divided the CSS and other gnatcatcher habitat into three categories of long -term conservation value (higher, intermediate, lower) based on habitat patch size, proximity, linkages and endemic species (see NCCP Conservation Guidelines 11/93). The USFWS has mapped the habitat according to these three categories. The maps provide an initial basis for the determination of the long term conservation value upon which site specific information could be used to modify the value accordingly. The following mitigation guidelines will be applied based on the degree of potential long- term conservation value of the site. A. Lower Value: Development in areas of lower long -term conservation value will generally be mitigated at a 1:1 ratio. The impact to CSS must not cumulatively exceed 5 percent within the City and subregion as monitored by the City and reported to USFWS. The mitigation may involve habitat acquisition, restoration and management of degraded habitat, or payment of fees into an established mitigation bank or habitat acquisition fund as described below. If mitigation is by payment of fee, the mitigation lands must be obtained within one year of project approval. Mitigation must be consistent with the general mitigation guidelines outlined above under Section II. Interim Habitat Loss Permit Process Page 16 B. Intermediate Value: Mitigation for impacts to intermediate value habitat will be established on a case -by -case basis, but generally a 2:1 mitigation ratio is considered adequate. The impact to CSS must not cumulatively exceed 5 percent within the City and subregion as monitored by the City and reported to USFWS, nor may the project preclude future linkages to high value areas. In cases where mitigation involves plant restoration and /or enhancement of degraded habitat, transplanting or seeding new areas may be necessary. The mitigation may involve habitat acquisition, or restoration and management of degraded habitat in combination with on -site preservation where appropriate. On -site preservation should be configured to maximize long -term viability and connectivity of the habitat and minimize edge effects. All mitigation must be located in areas of larger interconnected open space and conducted in accordance with the general mitigation guidelines. C. Higher Value: Due to the critical nature of the higher value habitat to the continued viability of local species, a standard mitigation ratio is not possible. While it is expected that impacts would be mitigated at no less than a 2:1 ratio, it should also be demonstrated that the impact would not foreclose regional preserve planning options and would not cause the numbers of any target species or species of concern to fall below self- sustaining levels. Mitigation could only occur by dedication of land of similar or greater value and function and possibly restoration of degraded habitat in areas critical to the functioning of preserves. On -site preservation may be desirable in combination with other mitigation measures, depending on the project site location. On -site preservation should be configured to maximize long term viability and connectivity of the habitat and minimize edge effects. Impacts to the CSS habitat and the target species must be mitigated to insignificant levels as required by CEQA, in accordance with the NCCP Process Guidelines, by using one or more of the following options: 1) Acquisition of habitat To the maximum extent possible, habitat acquisitions should be directed to core areas or corridors anticipated to be retained in the final NCCP preserve design. 2) Dedication of land 3) Management agreements 4) Restoration of habitat This includes habitat enhancement, creation, and /or transplantation of CSS species. 5) Payment of fees Resol. No. 97 -65 Interim Habitat Loss Permit Process Page 17 Projects that contain low CSS habitat value, as defined in the Conservation Guidelines, and are less than 10 acres, may be mitigated for by a payment of fee to the City. The City shall obtain mitigation lands within one year of the project approval, resulting in equivalent habitat value to that which was lost. 6) Transfer of development rights 7) Other mitigation measures approved in writing by CDFG and USFWS N:\ GROUP \PLANNING \RESOS \CC \4DPROCES.CC3 Interim Habitat Loss Permit Process Page 18