HomeMy WebLinkAboutSanta Clara Valley Habitat Conservation Plan - Planning Agreementc
ENACTED Copy - Contracts Admin. Unit
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AGM C. # A2960A Req. #3048
Planning Agreement
by and among
the County of Santa Clara, the Santa Clara Valley Water
District, the City of Gilroy, the City of Morgan Hill , the City
of San Jose, the Santa Clara Valley Transportation
Authority,
the California Department of Fish and Game,
and the United States Fish and Wildlife Service
regarding the
Santa Clara Valley
Natural Community Conservation Plan
and Habitat Conservation Plan
September 2005
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Santa Clara Valley HCP /NCCP -- September 2005
Planning Agreement No. 2810 - 2003 - 003 -03
TABLE OF CONTENTS
1.
Definitions ..................................................... ...............................
4
2.
Background ................................................... ...............................
6
2.1 Purposes of Planning Agreement .................. ...............................
6
2.2 Regulatory Goals ......................................... ..............................6
2.2.1 Compliance with CESA and FESA ........ ...............................
6
2.2.2 Compliance with Other Laws ................ ...............................
7
2.2.3 Section 7 of FESA ............................. ...............................
7
2.2.4 Assurances ...................................... ...............................
7
2.3 Planning Goals .......................................... ...............................
8
2.3.1 Consistency with Existing County and City Programs ...............
9
2.3.2 Departure from Project -By- Project Planning Approach ..............
9
2.3.3 Covered Activities .............................. ...............................
9
2.3.4 Natural Communities and Covered Species ............................
9
3.
Planning Area and Participating Parties .................. .............................10
3.1 Geographic Area ........................................ ...............................
10
3.2 Local Sponsors .......................................... ...............................
10
3.3 California Department of Fish and Game ........... .............................10
3.4 United States Fish and Wildlife Service ............. .............................10
4.
Preliminary Conservation Objectives ................... ...............................
10
5.
Planning Process ............................................ ...............................
11
5.1 NCCPA Planning Process for the Santa Clara Valley HCP /NCCP......
11
5.1.1 Natural Communities ......................... ...............................
11
5.1.2 Covered Species ............................... ...............................
11
5.1.3 Best Available Scientific Information ..... ...............................
11
5.1.4 Data Compilation and Collection .......... ...............................
12
5.1.4.1 Description of Planning Area ...... ...............................
12
5.1.5 Independent Scientific Input ................ ...............................
12
5.1.6 Public Participation ........................... ...............................
13
5.1.6.1 Outreach ................................ ...............................
14
5.1.6.2 Availability of Public Review Drafts .............................
14
5.1.6.3 Public Hearings ....................... ...............................
15
5.1.7 Interim Project Processing .................. ...............................
15
5.1.7.1 Reportable Interim Projects ........ ...............................
15
5.1.7.2 Notification Process .................. ...............................
15
5.1.7.3 Wildlife Agencies Review ........... ...............................
16
5.1.7.4 Coordinating Interim Process with Plan Preparation........
16
5.1.7.5 Coyote Valley Specific Plan ........ ...............................
16
5.1.8 Related Projects ................................ ...............................
17
5.1.8.1 Fisheries and Aquatic Habitat Collaborative Effort ...........
17
5.1.9 Protection of Habitat Land During Planning Process .................17
5.1.9.1 Conservation Lands Acquired/ Protected .......................
17
5.1.9.2 Mitigation Lands ....................... ...............................
17
5.2 FESA Planning Requirements ......................... .............................17
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6. Commitment of Resources ................................................. I............ 18
6.1 Funding ........ .......................................... ............................... 18
6.1.1 Local Funding ..................................... .............................18
6.1.2 DFG Assistance with Funding .............. ............................... 18
6.1.3 USFWS Assistance with Funding ........................................ 18
6.2 Technical Assistance from Wildlife Agencies ... ............................... 19
7. Miscellaneous Provisions ................................. ............................... 19
7.1 Public Officials Not to Benefit ....................... ............................... 19
7.2 Statutory Authority ..................................... ............................... 19
73 Counterparts ............................................ ............................... 19
7.4 Effective Date ........................................... ............................... 19
7.5 Duration .................................................. ............................... 19
7.6 Amendments ............................................ ............................... 19
7.7 Termination and Withdrawal ........................ ............................... 19
7.7.1 Funding .......................................... ............................... 19
Signatures............................................................. ............................... 19
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Santa Clara Valley HCP /NCCP-- September 2005
Planning Agreement No. 2810- 2003- 003 -03
Santa Clara Valley HCPINCCP
Planning Agreement
This planning agreement ( "Planning Agreement" or "Agreement ") regarding the
Santa Clara Valley Habitat Conservation Plan /Natural Community Conservation Plan
( "Plan ") is entered into as of the Effective Date by and among the County of Santa
Clara a political subdivision of the State of California ( "County "), the City of Gilroy, a
municipal corporation, the City of Morgan Hill, a municipal corporation, the City of
San Jose, a municipal corporation (collectively the "Cities "), the Santa Clara Valley
Water District, a public entity ( "Water District "), the Santa Clara Valley
Transportation Authority, a public entity ( "VTA "), the California Department of Fish
and Game ( "DFG"), and the United States Fish and Wildlife Service ( "USFWS ").
These entities may be referred to collectively in this Agreement as "Parties" and
each individually as a "Party." The County, Cities, Water District and VTA may be
referred to collectively in this Agreement as the "Local Agencies." The DFG and
USFWS may be referred to collectively in this Agreement as "Wildlife Agencies."
1. Definitions
Terms used in this Agreement that are defined in CESA, FESA or NCCPA will have
the meanings set forth therein as of the date of this Agreement unless otherwise
indicated in this Agreement. The following terms as used in this Agreement will
have the meanings set forth below:
1.1. "CEQA" means the California Environmental Quality Act, Public Resources
Code Section 21000 et seq.
1.2. "CESA" means the California Endangered Species Act, California Fish and
Game Code Section 2080 et seq.
1.3. "City or Cities means the City of Gilroy, City of Morgan Hill and the City of
San Jose, municipal corporations.
1.4. "County" means the County of Santa Clara, a political subdivision of the
State of California.
1.5. "Covered Activities" means the activities that will be addressed in the Plan
and for which Local Agencies will seek an NCCPA take permit pursuant to Fish
and Game Code, Section 2835 and an incidental take permit pursuant to Section
10 of FESA.
1,6. "Covered Species" means those listed and unlisted plant and animal
species that are covered in the Plan and for which take permits may be issued in
accordance with this Agreement.
1.7. "DFG' means the California Department of Fish and Game.
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1.8. "FESA" means the federal Endangered Species Act, 16 U.S.C. Section
1530 et seq.
1.9. "Habitat Conservation Plan" or "HCP" means a plan prepared pursuant to
Section 10(a)(2)(A) of FESA and regulations promulgated pursuant thereto..
1.10. "HCP /NCCP Management Team" means, collectively, the staff person(s)
identified by each Local Agency to represent the Local Agency's interests during
Plan development. This Team will provide collective guidance and decision
making on behalf of the Local Agencies regarding Plan development, as set forth
in the Memorandum of Understanding between the Local Agencies; however, the
Plan and associated CEQA documents must be approved by the governing
bodies of the Local Agencies.
1.11. "Listed Species" means plant or animal species that are listed as
threatened or endangered pursuant to CESA and/or FESA.
1.12. "Local Agencies" means, individually or collectively, the County of Santa
Clara, the City of Gilroy, the City of Morgan Hill, the City of San Jose, the Santa
Clara Valley Water District, and/or the Santa Clara Valley Transportation
Authority.
1.13. "NCCP" means a natural community conservation plan prepared pursuant
to the Natural Community Conservation Planning Act, California Fish and Game
Code Section 2800 et seq.
1.14. "NCCPA" means the Natural Community Conservation Planning Act,
California Fish and Game Code Section 2800 et seq.
1.15. "NEPA" means the National Environmental Policy Act, 14 U.S.C. section
4321 et seq.
1.15. "NOAH" means the National Oceanic and Atmospheric Administration.
1.17. "Parties" means the signatories to this agreement.
1.18. "Plan" means the joint natural community conservation plan and habitat
conservation plan.
1.19. "Planning Area" means the geographic area that the Local Agencies intend
to cover in the Plan.
1.20. "USFWS" means the United States Fish and Wildlife Service.
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1.21. "VTA" means the Santa Clara Valley Transportation Authority, a public
entity.
1.22. "Water District" means the Santa Clara Valley Water District, a public entity.
1.23. "Wildlife Agencies" collectively refers to DFG and USFWS.
2. Background
2.1. Purposes of Planning Agreement
The purposes of this Agreement are to:
• Define the Parties' goals and obligations with regard to development of
a legally sufficient and approvable Plan that will form the basis for take
permits for Covered Activities;
• Define the preliminary geographic scope of the Planning Area;
• Identify a preliminary list of natural communities and species expected
to be found in those communities that are intended to be the initial
focus of the Plan;
• Identify preliminary conservation objectives for the Planning Area;
• Establish a process for the inclusion of independent scientific input into
the Plan development process;
• Ensure coordination among the Local Agencies and Wildlife Agencies;
Establish an interim process during Plan development that encourages
conditions conducive to achieving the preliminary conservation
objectives;
+ Establish a process for public participation and outreach; and
• Encourage concurrent planning for wetlands and waters of the United
States.
2.2. Regulatory Goals
The Local Agencies intend that the Plan will allow for development and growth
compatible with the Plan's goals and consistent with State and federal
regulatory requirements. By agreeing to assume responsibility for development
of the Plan, and committing staff and financial resources for that purpose, the
Local Agencies intend for the Plan to yield numerous benefits in addition to
natural resource conservation, including greater regulatory efficiency,
streamlining and certainty.
2.2.1. Compliance with CESA and FESA
The Planning Area contains valuable biological resources, including native
species of wildlife and their habitat. Among the species within the Planning
Area are certain species that are protected, or may be protected in the future,
under CESA and/or FESA. The Parties intend to develop a Plan that satisfies
the requirements for an HCP under Section 10 of FESA (16 U.S.C., § 1539)
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and an NCCP under the NCCPA. The Plan is intended to serve as the basis
for take authorizations pursuant to section 10(a) of FESA and section 2835 of
the NCCPA. The NCCPA provides that, after the approval of an NCCP, DFG is
authorized to permit the taking of any identified species, both listed and non -
listed, whose conservation and management is provided for in the NCCP. Take
authorization for state - listed species during the interim period shall be provided
pursuant to CESA. After approval of the Plan, take authorization will be
provided pursuant to the NCCPA and FESA.
2.2.2. Compliance with Other Laws
The Parties intend that the Plan will be prepared in compliance with all federal,
state and local laws and regulations. The Parties expect that the Plan may
facilitate permitting or approvals pursuant to other environmental regulations
implemented by other regulatory agencies, such as laws and regulations
related to impacts to waters of the United States.
2.2.3. Section 7 of FESA
To the extent allowed under law, the Parties intend that the mitigation and
minimization measures included in the Plan, once approved by the USFWS or
NOAA Fisheries and included as a condition of federal incidental take permits
to the Local Agencies, will be incorporated into future Section 7 consultations
between the USFWS or NOAA Fisheries and the United States Army Corps of
Engineers, the United States Bureau of Reclamation, or other applicable
federal agencies regarding Covered Activities that may adversely affect
Covered Species or their habitat. The Parties expect that inclusion of the
Plan's mitigation and minimization measures into future Section 7 consultations
regarding Covered Activities will streamline the consultation process because
the USFWS would have already determined that the Plan's mitigation and
minimization measures for the Covered Activities comply with FESA.
2.2.4. Assurances
The Parties intend that the USFWS will provide regulatory assurances to
applicants for FESA permits pursuant to the Plan consistent with their
regulatory authority upon issuance of incidental take permits pursuant to the
Plan. Specifically, the Parties intend that, if the HCP meets the criteria for
issuance of an incidental take permit under Section 10 of FESA, the Applicants
will receive the assurances in the "no surprises" regulations of the United
States Department of the Interior currently set out at 50 C.F.R. 17.22(b)(5), and
17.32(b)(5) and the United States Department of Commerce currently set out at
50 C.F.R. 222.3 and 222.22, as of the date of this Agreement for all species
adequately covered under the HCP. Such assurances would be provided upon
approval of the HCP and issuance of incidental take permits pursuant to the
HCP.
The Parties recognize that the "no surprises" regulations are the subject
of continuing litigation, and that the current regulations must be
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considered as part of a larger remand order regarding the FWS`s permit
revocation rule. The Parties further recognize that "no surprises" assurances
may not become available prior to completion of Plan development; and the
Parties are not proceeding with Plan development in reliance of having such
assurances. To the extent that such assurances are available at the time of
permit issuance, or may become available in the future, the FWS will work with
the Local Agencies to provide such assurances to the fullest extent allowable
by statute and regulation.
In addition, the Parties intend that if the NCCP meets the criteria for a NCCPA
take permit under Section 2835 of the Fish and. Game Code, DFG will provide
regulatory assurances to the fullest extent consistent with its statutory authority
upon approval of the Plan and issuance of NCCPA take permits to the Local
Agencies. Pursuant to Section 2820(f) of the Fish and Game Code,
assurances provided by DFG will be commensurate with long -term
conservation assurances and associated implementation measures. In order to
ensure that Plan assurances are formal, reliable, and legally binding, such
provisions will be included in implementation agreements.
2.3. Planning Coals
The planning goals include the following:
• Allow appropriate compatible growth and development to the extent
consistent with applicable laws;
• Provide a basis for permits and authorizations necessary to lawfully
take species listed as threatened or endangered pursuant to FESA
and /or CESA;
• Provide a process for issuance of take authorizations for Covered
Species that are not currently listed but that may be listed in the future
without imposing additional mitigation requirements not provided in the
approved Plan;
• Provide a comprehensive means to coordinate and standardize
mitigation and compensation requirements of FESA, CEQA, NEPA,
NCCPA and other applicable laws and regulations relating to biological
and natural resources within the Planning Area so that public and
private actions will be governed equally and consistently, thus reducing
delays, expenses and regulatory duplication;
Provide a less costly, more efficient project review process which
results in greater conservation values than the current project-by-
project, species -by- species review and regulatory regime; and
• Provide take authority for covered activities related to the need for
uninterrupted water supply, flood protection and watershed activities to
the extent consistent with applicable laws.
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2.3.1. Consistency with Existing County and City Programs.
The Parties recognize that the Plan is intended to provide the framework for
compliance with FESA and the NCCPA and agree that the Plan will be based
on the Local Agencies' existing programs to the extent those programs are
consistent with the requirements of federal and state law. The Parties
recognize that the Local Agencies' programs are not specifically intended to
fulfill the State and federal regulatory requirements that may apply to Covered
Activities. The Parties therefore anticipate that the Plan may contain some
measures, standards or requirements that are not specifically identified in the
Local Agencies' existing documents.
2.3.2. Departure from Project -by- Project Planning Approach.
The Parties agree that the process of undertaking habitat conservation
planning on a project -by- project basis is costly and inefficient. All Parties
assume that the development of a successful Plan will be a less expensive
and more efficient and effective method of complying with the species
conservation requirements of FESA and NCCPA than through a project -by-
project approach. A successful Plan will also provide a method for a less
expensive and more efficient environmental review process for NEPA and
CEQA. The Parties also agree that a successful Plan can be better for both
habitat conservation and economic development than through individual
project permitting.
2.3.3. Covered Activities
Covered Activities under the Plan are those activities that may result in take of
Covered Species that will be identified and addressed in the Plan and
authorized by take permits issued as a result of the approved Plan. Covered
Activities under the Plan include Water District water supply, flood protection
and watershed activities and those land uses and development activities that
the Local Agencies undertake or over which they have land use or other
regulatory authority, and may also address certain agricultural activities and
adaptive habitat management and monitoring activities in the Planning Area,
The Parties intend that the Plan will allow Covered Activities in the Planning
Area to be carried out in compliance with NCCPA and FESA.
2.3.4. Natural Communities and Covered Species
The Parties intend for the Plan to address the impacts of taking that may result
from Covered Activities in the Planning Area on natural communities, on
covered endangered and threatened species listed under FESA or CESA, and
on other Covered Species that are currently unlisted. The purpose of
addressing unlisted species will be to provide for the conservation and
management of those species, and to help prevent such species from
becoming listed as threatened or endangered under FESA or CESA.
Addressing unlisted species in the Plan is also intended to avoid the need to
develop new and different measures or restrictions to mitigate for impacts
should such species become listed in the future because an approved NCCP
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authorizes the issuance of take permits for such species. It is also the goal to
include, at a minimum, measures sufficient to enable USFWS to issue
incidental take permits or otherwise authorize take in the event additional
species are listed and subject to the "take" prohibition. A preliminary list of
natural communities, and the endangered, threatened, candidate, or other
species known, or reasonably expected to be found, in those communities, that
are intended to be the initial focus of the Plan is attached as Exhibit A. While
Exhibit A identifies the species that the Local Agencies and Wildlife Agencies
will initially evaluate for inclusion in the Plan, it does not necessarily represent
the Plan's final Covered Species list.
3. Planning Area and Participating Parties
3.1. Geographic Area
The Planning Area contains those portions of the Coyote, Uvas /Llagas and
Pacheco Watersheds depicted on Exhibit B and further described in Section
5.1,4.1. This geographic area is preliminary and may be modified during Plan
development to achieve the planning goals in Section 2.4.
3.2. Local Sponsors
The Local Agencies are the local sponsors of the Plan. As part of this planning
process, the Local Agencies have committed to undertake a collaborative,
systematic approach to protecting the ecologically significant resources,
including certain rare, threatened and endangered species and their habitats,
open space, and agricultural lands within the Planning Area, and to ensure that
the Covered Activities comply with applicable federal, State and local
environmental laws.
3.3. California Department of Fish and Game
DFG is the agency of the State of California authorized and empowered to act
as trustee for wildlife (as defined in Fish and Game Code Section 711.2) of the
State on behalf of its residents. DFG is authorized to develop NCCPs pursuant
to the NCCPA, to enforce the terms of the CESA, to issue take permits, and to
enter into agreements with federal and local governments and other entities for
the conservation of species and habitats pursuant to CESA and the NCCPA.
3.4. United States Fish and Wildlife Service
The USFWS is an agency of the United States Department of the Interior and is
authorized and empowered by Congress to implement and enforce the FESA,
enter into agreements with States, local governments, and other entities to
conserve threatened, endangered, and other species of concern, and issue
take permits. This Agreement requires coordination with federal Wildlife
Agencies with respect to FESA.
4. Preliminary Conservation Objectives
The preliminary conservation objectives of the Plan are to:
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• Preserve the diversity of plant and animal communities within the
Planning Area:
• Protect Covered Species within the Planning Area;
Identify and designate biologically sensitive habitat areas;
• Conserve habitat, and thereby contribute to the recovery of threatened,
endangered and other identified plant and animal species within the
Planning Area;
• Reduce the need to list additional species;
• Set forth specific habitat -based goals and objectives expressed in
terms of amount and quality of habitat;
• Determine the extent of impacts to species from incidental take caused
by Covered Activities; and
• Provide an effective adaptive management and monitoring strategy for
Covered Species and natural communities that is consistent with the
NCCPA, FESA, and regulations promulgated thereunder.
S. Planning Process
The Parties intend that this Agreement will fulfill the NCCPA requirements pertaining
to planning agreements and will establish a mutually agreeable process for
preparing a Plan that fulfills the requirements of the NCCPA and FESA.
5.1. NCCPA Planning Process for the Santa Clara Valley HCPINCCP
The process used to develop the Plan will incorporate independent scientific
input and analysis, and public participation to ensure that the general public, as
well as key stakeholders, have sufficient opportunity for comment.
5.1.1. Natural Communities
The Plan will provide for conservation of ecosystems, habitats, and ecosystem
function to ensure conservation of biological diversity of the natural
communities in the Planning Area. A preliminary list of natural communities in
the Planning Area is included in Exhibit A.
5.1.2. Covered Species
The preliminary list of Covered Species is attached hereto as Exhibit A.
5.1:3. Best Available Scientific Information
Pursuant to the NCCPA and FESA, the Plan will be based on the best available
scientific information, including:
• Principles of conservation biology, community ecology, landscape
ecology, individual species' ecology, and other scientific knowledge
and thought;
• Advice from well - qualified, independent scientists.
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5.1.4. Data Compilation and Collection
Many data have already been collected that will be valuable to development of
the Plan, and the Parties agree that these existing data will be considered even
if the data were not collected in accordance with recognized survey protocols.
The science advisory process and analysis of existing information may reveal
data gaps currently not known, that are necessary for the full and accurate
development of the Plan. Data needed for the preparation of the Plan may not
be known at this time nor identified herein. The Parties also agree that data
collection needs for preparation of the Plan should be prioritized to develop
more complete information on these subjects. Preference should be given to
the data essential to address conservation requirements of the Covered
Species and natural communities. If additional data collection is necessary, the
parties will first consider protocols approved by the Wildlife Agencies. Any
deviation from these Wildlife Agency - approved protocols will be agreed to by all
Parties. Data collected for the preparation and implementation of the Plan will
be made available to the Wildlife Agencies in hard and digital (where available)
formats, as requested.
5.1.4.1. Description of Planning Area
The Planning Area is 688 square miles and covers approximately half of
Santa Clara County as depicted in Exhibit B attached hereto. The
Planning Area boundaries generally coincide with the Coyote Watershed
(excluding the most northern area), Uvas /t_lagas Watershed and Pacheco
Watershed located within Santa Clara County. The Uvas /Llagas and
Pacheco Watersheds are the portion of the County that drains to Monterey
Bay through the Pajaro River. The Coyote Creek Watershed drains north
into San Francisco Bay. The Planning Area generally covers the
southeastern portion of the county including portions of the Santa Cruz
Mountains to the west, the central portion of the Santa Clara Valley, and
portions of the Diablo Range to the east. A majority of the Planning Area
is unincorporated, but portions are within the Cities of San Jose, Morgan
Hill and Gilroy. The Planning Area encompasses a diversity of land uses,
including a variety of urban and suburban development types, agriculture
uses and ranchlands, rural residential, recreation, and public and private
open space. It also contains diverse natural community types, including a
variety of grasslands, serpentine, oak woodlands, mixed riparian forests,
scrub /chaparral, marshes and other aquatic areas. A preliminary list of
the natural communities as well as covered species typically found in
these communities is in Exhibit A attached hereto.
5.1.5. Independent Scientific Input
The DFG and Local Agencies intend to include independent scientific input and
analysis to assist in the preparation of the Plan. For that purpose, independent
scientists representing a broad range of disciplines, including conservation
biology and locally- relevant ecological knowledge, will, at a minimum:
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• recommend scientifically sound conservation strategies for species and
natural communities proposed to be covered by the Plan;
• recommend a set of reserve design principles that address the needs of
species, landscapes, ecosystems, and ecological processes in the
Planning Area proposed to be addressed by the Plan;
• recommend management principles and conservation goals that can be
used in developing a framework for the monitoring and adaptive
management component of the Plan; and
• identify data gaps and uncertainties so that risk factors can be
evaluated.
The independent scientists may be asked to provide additional feedback on key
issues during preparation of the Plan, and may prepare reports regarding
specific scientific issues throughout the process, as deemed necessary by the
DFG and Local Agencies.
Design and implementation of the science advisory process must be done in a
coordinated fashion and with the mutual agreement of the DFG and Local
Agencies. The DFG and Local Agencies will establish funding and payment
procedures. The independent science advisory process will include the
development of a detailed scope of work, use of a professional facilitator, input
from technical experts, and production of a report by the scientists. In addition,
the DFG and Local Agencies will make the report available for use by all
participants and the public during the planning process.
5.1.6. Public Participation
The Plan will be prepared in an open and transparent process, with input from
concerned citizens. The process used to prepare the Plan will provide
opportunities for public review and comment, and include a working group that
will review the Plan at every major stage of development. To assist in the
development of the Plan, the Local Agencies will form a Stakeholder Group.
With regard to the preparation of the Plan, the Parties hereto understand that:
• Plan preparation will be guided by a Stakeholder Group, each of whom
have a stake or interest in the outcome of the Plan;
• The Stakeholder Group will include and utilize representatives of local
and state government agencies, civic and business interests and
organizations, agricultural and industry associations, environmental
groups, resource conservation and land management groups,
professional and trade organizations, and the general public. The
Local Agencies will confirm the Stakeholder Group representatives and
a schedule for their consideration of the HCPINCCP documents. The
general public will be allowed to attend the Stakeholder Group
meetings and to listen to the proceedings. Agendas and minutes of
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the Stakeholder Group meetings will be available on the HOP /NCCP
website;
• The number of stakeholders participating in the Stakeholder Group will
be balanced to adequately represent a cross - section of the various
interest groups and to be manageable and effective;
• The process for selecting and approving stakeholder membership will
be determined by the Local Agencies with input from the Wildlife
Agencies;
• The Stakeholder Group will constitute the core group for input into Plan
preparation and will use a collaborative approach to assist in the
preparation of the Plan;
• The Stakeholder Group will be convened at least quarterly, and more
often as needed, to review and comment on Plan material at critical
stages in the process; and
• Stakeholder subgroups may be established to review specific portions
of Plan work and conduct outreach as necessary and appropriate.
5.1.6.1. Outreach
The Local Agencies will develop a process for providing access to
information for persons interested in the Plan, with an emphasis on
obtaining input from a balanced variety of public and private interests
including State and local governments, landowners, conservation
organizations, agricultural interests, and the general public. The Parties
expect and intend that public outreach regarding preparation of the Plan
will be conducted largely by and through the Stakeholder Group
coordinated by the Local Agencies' HCPfNCCP Management Team. In
addition, the Local Agencies will continue to hold public meetings at key
points in the process (e.g., 'to solicit input on CEQAINEPA documents;
present key decisions regarding the preparation of the Plan) in order to
afford the public the opportunity to comment on and inquire about such
documents and decisions. Other outreach efforts will include development
of a Plan website and development and maintenance of an interested
party mailing list (electronic or paper) for distribution of key Plan
documents and other informational updates. The Local Agencies will also
seek input from the Stakeholder Group regarding additional public
outreach efforts.
5.1.6.2. Availability of Public Review Drafts
The Local Agencies will comply with all legal requirements regarding
public notice, review and comment related to documents associated with
the Plan, including but not limited to any such requirements in the NCCPA,
FESA, CEQA and NEPA. The Local Agencies will designate as "public
review drafts" various pertinent documents drafted during preparation of
the Plan and will make these documents available to the public. The
Parties agree that the internet will be used to make documents pertaining
Page 14 of 22
Santa Clara Valley HCP /NCCP -- September 2005
Planning Agreement ND, 2810- 2003 - 003 -03
to the Plan available for public review, as well as more traditional means
such as distribution and display of hard copies of such documents.
5.1.5.3. Public Hearings
Public hearings regarding the Plan development and/or approval will be
planned and conducted to complement or integrate with hearings
otherwise required by law.
5.1.7. Interim Project Processing
The Parties recognize that, before the Wildlife Agencies approve the Plan,
certain projects and activities that must comply with FESA and/or CESA, that
may potentially conflict with the preliminary conservation objectives in this
Agreement may be proposed within the Planning Area. The Parties agree to
the following Interim Project Process to (1) ensure coordination regarding
development, construction or other projects or activities approved or initiated in
the Planning Area before completion of the Plan to help achieve the preliminary
conservation objectives and not preclude important conservation planning
options or connectivity between areas of high habitat values; (2) facilitate CESA
and FESA compliance for interim projects that require it; and (3) ensure that
interim projects are not unduly delayed due to preparation of the Plan.
5.1.7.1. Reportable Interim Projects
The Local Agencies will notify the Wildlife Agencies pursuant to section
5.1.7.2 about proposed development, construction or other projects or
activities undertaken by or requiring discretionary permits pursuant to
CEQA from the Local Agencies that have the potential to adversely impact
Covered Species, natural communities, or conflict with the preliminary
conservation objectives contained in Section 4 of this Agreement and for
which the lead Local Agency determines that a Mitigated Negative
Declaration or EIR must be prepared for the project ( "Reportable Interim
Projects ").
5.1.7.2. Notification Process
The Local Agency proposing to undertake or approve a Reportable Interim
Project shall notify the Wildlife Agencies of the project as soon as possible
after the application for the project is deemed complete pursuant to
Government Code Section 65943 or within 30 days of its determination
that a Mitigated Negative Declaration or EIR must be prepared for the
project, whichever is earlier. The Local Agency shall notify the particular
individuals designated by the Wildlife Agencies to be notified of
Reportable Interim Projects, and where appropriate shall provide these
designated individuals with (1) a depiction of the project location on a
regional context map identifying major streets and highways and an aerial
photo of the site and surrounding area; and (2) a description of the project
along with land cover types present on the project site using the most
Page 15 of 22
Santa Clara Valley HCPINCCP -- September 2005
Planning Agreement No. 2810 -2003- 003 -03
current land cover data available to the Local Agency; and (3) any other
biological information available to the Local Agency about the project area.
5.1.7.3. Wildlife Agencies Review
The Wildlife Agencies shall review Reportable Interim Projects in a timely
manner, and shall provide any comments on the projects (e.g., comments
on scoping, draft Mitigated Negative Declaration or EIR or EIS) to the
referring Local Agency and lead federal agency, if any, within the legally
prescribed comment periods. The Wildlife Agencies' comments shall
recommend mitigation measures or project alternatives that would help
achieve the preliminary conservation objectives and will not preclude
important conservation planning options or connectivity between areas of
high habitat values.
5.1.7.4. Coordinating Interim Process with Plan Preparation
Representatives of the Parties will meet as needed to discuss interim
projects and coordination with development of the Plan. The Parties will
also periodically confer to determine how scientific input and analysis
developed during Plan preparation or provided through the science
advisory process should be incorporated into the Interim Project Process.
The Parties agree that potential conflicts with the preliminary conservation
objectives shall be identified during the Interim Process to help achieve
the preliminary conservation objectives, not preclude important
conservation planning options or connectivity between areas of high
habitat values, and help guide and ensure development of a successful
Plan that incorporates these interim projects.
5.1.7.5. Coyote Valley Specific Plan
The Coyote Valley Specific Plan ( "CVSP ") will cover approximately 7,100
acres at the extreme south edge of the City of San Jose consisting of the
North. Coyote Valley Campus Industrial area, the Coyote Valley Urban
Reserve and the Coyote Greenbelt. A map depicting the CVSP area is
attached hereto as Exhibit C. The City of San Jose anticipates that the
CVSP will supply a minimum of 25,000 homes and 50,000 jobs in an
urban pedestrian - oriented community. Because the Plan may not be
completed before the City of San Jose takes action on the CVSP, the City
of San Jose may seek approval for the CVSP pursuant to FESA Section 7.
Any CVSP Section 7 shall adequately compensate for all direct and
indirect effects from the action, and the CVSP will not preclude the
development of a viable conservation strategy for the Plan. Consequently,
the Parties agree and acknowledge that the CVSP is an Interim Project
under this Agreement and that the CVSP and its implementation will not
be delayed by development of the Plan.
Page 16 of 22
Santa Clara Valley HCP /NCCP-- September 2006
Planning Agreement No. 2810- 2003 - 003 -03
5.1.8. Related Projects
5.1.8.1. Fisheries and Aquatic Habitat Collaborative Effort
( "FAHCE ")
The Water District, Wildlife Agencies, and NOAA.are parties to a
settlement agreement to resolve a water rights challenge filed with the
California State Water Resources Control Board in July 1996. Under the
provisional settlement agreement, the Water District agreed to undertake
certain actions, including development of a conservation strategy for the
three creeks subject to the settlement, preparing the necessary CEQA and
NEPA documents for the conservation strategy, and obtaining any
necessary FESA permits to implement the conservation strategy. The
Water District, Wildlife Agencies, and NOAA also agreed to incorporate
the settlement's conservation strategy for the three creeks into a
countywide HCP.
5.1.9. Protection of Habitat Land During Planning Process
5.1.9.1. Conservation Lands Acquired /Protected
The Parties may elect to preserve, enhance or restore, either by
acquisition or other means (e.g., conservation easements; designated
setbacks or "no build" zones), lands in the Planning Area that contain
native species of wildlife or natural communities prior to the completion or
approval of the Plan. The Local Agencies will consult with the Wildlife
Agencies regarding potential lands to be protected. Upon approval of the
Plan, the Wildlife Agencies agree to credit such lands toward the land
acquisition or habitat preservation requirements of the Plan, if, and to the
extent, the lands contribute to the Plan's conservation strategy. The
Wildlife Agencies will not refuse to credit toward a Plan conservation
obligation any lands determined by the Wildlife Agencies to be biologically
suitable for the Plan solely on the basis that the lands were acquired or
preserved prior to completion of the Plan.
5.1.9.2. Mitigation Lands
Lands, or portions of lands, protected solely to mitigate the impacts of
specific projects or activities that occur prior to or during plan preparation
will only be considered as mitigation for the resulting loss from those
projects. Such lands will also be considered as part of the Plan analysis,
but will not count toward future mitigation obligations of the Plan.
Mitigation credit will count only once.
5.2. FESA Planning Requirements
FESA's requirement for public participation in the development of habitat
conservation plans is a minimum 30 -day public comment period for all draft
habitat conservation plans. (16 U.S.C.A. § 1539(c); 50 C.F.R. Part 17 and Part
222.) However, in conformance with the federal HCP Handbook and the 5
Point Policy, the USFWS customarily allows for public comment periods of 60
days, 90 days, or even longer, depending on the scale and complexity of
Page 17 of 22
Santa Clara Valley HCPINCCP -- September 2005
Planning Agreement No. 2810- 2003 - 003 -03
individual habitat conservation plans. Further, the issuance of incidental take
permits by the USFWS is a federal action subject to the requirements of NEPA,
which similarly requires a minimum 45 to 60 day public review period for all
major federal actions significantly affecting the quality of the human
environment. For large - scale, regional, or exceptionally complex habitat
conservation plans, the USFWS encourages plan preparers to use
informational meetings and external review teams. It is the policy of the
USFWS to allow a minimum 90 -day public comment period for such habitat
conservation plans, unless there is significant public participation during their
development.
6. Commitment of Resources
6.1. Funding
6.1.1. Local Funding
The Local Agencies recognize that, as a prospective applicant for State and
federal permits, they have the primary responsibility for developing a plan that
meets applicable legal requirements and that, as a result, the development and
implementation of the Plan must be funded primarily from locally derived
sources.
6.1.2. DFG Assistance with Funding
DFG agrees to assist and cooperate with the other Parties in identifying and
securing, where appropriate, federal, State and other funds for natural
community conservation planning and habitat conservation planning purposes.
The Parties agree that Local Agencies are not required to reimburse DFG for its
participation in the planning phase of the Plan as provided in Fish and Game
Code Section 2810. DFG's commitments and obligations under this Agreement
are subject to the availability of appropriated funds and the written commitment
of funds by an authorized DFG representative.
6.1.3. USFWS Assistance with Funding
The USFWS agrees to assist and cooperate with the Local Agencies in
identifying and securing federal, State and other funds for habitat conservation
planning purposes. Potential federal funding sources include, but are not
limited to: the USFWS' Cooperative Endangered Species Conservation Fund,
the Land and Water Conservation Fund, and land acquisition grants or loans
through other federal agencies such as the Environmental Protection Agency,
the Army Corps of Engineers, or the Departments of Agriculture or
Transportation. The commitments and obligations of the USFWS under this
Agreement are subject to the requirements of the federal Anti - Deficiency Act
and the availability of appropriated funds. The Parties acknowledge that this
Agreement does not require any federal agency to expend its appropriated
funds unless and until an authorized officer of that agency affirmatively acts to
commit to such expenditures as evidenced in writing.
Page 18 of 22
Santa Clara Valley HCPINCCP -- September 2005
Planning Agreement No. 2810- 2003- 003 -03
6.2. Technical Assistance from Wildlife Agencies
The Wildlife Agencies agree to provide timely evaluation of interim projects,
technical and scientific information, and analyses and advice to assist the Local
Agencies with the timely and efficient development of the Plan, provided the
Local Agencies give the Wildlife Agencies quality data and sufficient time for
review.
7. Miscellaneous Provisions
7.1. Public Officials Not to Benefit
No member of or delegate to Congress will be entitled to any share or part of
this Agreement, or to any benefit that may arise from it.
7.2. Statutory Authority
The Parties will not construe this Agreement to require any Party to act beyond,
or inconsistent with, its statutory authority.
7.3. Counterparts
This Agreement may be executed by the Parties in several counterparts, which
together will constitute an official original copy.
7.4. Effective Date
The Effective Date of this Agreement will be the date on which it is executed by
all of the Wildlife Agencies and all of the Local Agencies.
7.5. Duration
This Agreement will be in effect until the Plan is approved by the Wildlife
Agencies, but shall not be in effect for more than five years following the
Effective Date, unless extended by amendment or terminated.
7.6. Amendments
This Agreement can be amended only by written agreement of all Parties.
7.7. Termination and Withdrawal
Any party may withdraw from this Agreement upon 30 days' written notice.
This Agreement can be terminated only by written agreement of all Parties.
7.7.1. Funding
In the event that grant funds have been awarded to a withdrawing Party for the
Plan preparation or implementation, the withdrawing Party shall return any
unspent grant funds to the grantor within 30 days of withdrawing, and provide
the remaining Parties with a complete accounting of the use of the grant funds.
Page 19 of 22
Santa Clara Valley HCP /NCCP -- September 2005
Planning Agreement No. 2810- 2003 - 003 -03
SIGNATURES:
APPROVED AS TO FORM:
CALIFORNIA DEPARTMENT OF FISH AND
GAME
By:_ C
By:
BANKY E. CURTIS
NN S. MALCOLM
Its: General Counsel
Its: Deputy Director
Date: 2 VV
Habita nervation Division
Date:
UNITED STATES FISH AND WILDLIFE
SERVICE
By:1 CLli ix �� �Z4
Susan K. Moore
Its: Acting Field Supervisor
Date:
APPROVED AS TO FORM:
CITY O a municipal orpor ion
r�
By: ,�—
y'
LINDA CALLON
AY SA
Its: City Attorney
Ct y ministrator
Date: I - — O r
Date: 11 2 - ZACaS
RHONDA PELLIN
Its: City Clerk
Date:
Page 20 of 22
Santa Clara Valley HCP/NCCP- -September 2005
Planning Agreement No. 2810 -2003- 003 -03
APPROVED AS TO FORM:
By:
Ita: I
Date
By: -
Its: Interim City Attorney
��Date: i
APPROVED AS T FO
By:
VERA TODOROV
It *eputy City Attorne
Date: (2 2 Qi0 0?
APROVED AS TO FORM:
4�i
By•
EMILYGOTE
Its: Assistant District Counsel
Date: o3l�/C)6
CITY OF MORGAN HILL, a municipal
corporation
By.
J. EDWARD TEWES
Its: City Manager
Date: i I I/ 1101& ri
ATTEST:
Irma Torrez, Ci y CIA
Date: Ct
CITY OF S JOSE, a m iici at corporation
By:
LEE PRICE
Its: City CIe
Date: 17/ 6
SANTA CLARA VALLEY WATER DISTRICT,
a public entity
By: y
RICHARD P. S.ANTOS
Its: Chair of the Bourd Di ctors
Date:
EN, , ^T ED Copy - Contract Adrnin. Unit
AGAu. # A - ;; Req. # = %
Page 21 of 22
Santa Clara Valley HCP /NCCP -- September 2005
Planning Agreement No. 2810- 2003 - 003 -03
Signed and certified that a copy of this document
COUNTY OF SANTA CLARA, a political
has been delivered by electronic or other , means
to the Chair, Board of Supervisors.
subdivisio?of to State of California
ATTEST:
By: f
LIZ NISS
By: K2A/
Chair,
PRYLLIS A. PEREZ
Board of Supervisors
Its: Clerk of the Board
Date: OCT 0 4 2005
OCT 0 4 2005
Date:
APPROVED AS TO FORM AND LEGALITY:
By: N- 4..�.. �1
LIZ A E E REYNOVDS
Its; Deputy County Counsel
Date: 9—(9 -6
APPROVED AS TO FORM
SANTA CLARA VALLEY
TRANSPORTATION AUTHORITY
By: ✓��! ,
By:
MICHAEL T. BU )(NS
KEVIN ALL.MAND
Its: Counsel
Its: General an ger
Date Z b-6
Date: dl 3iY O(r
Page 22 of 22
Santa Clara Valley HCP /NCCP -- September 2005
Planning Agreement No. 2810 -2003- 003 -03
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