HomeMy WebLinkAboutImplementing AgreementSANTA CLARA VALLEY HABITAT PLAN
IMPLEMENTING AGREEMENT
August 14, 2012
Item IX.A.
TABLE OF CONTENTS
1. Parties ................................................................................................................................. ..............................9
2. Recitals ............................................................................................................................... ..............................9
3. Definitions ....................................................................................................................... .............................11
3.1.
" Agreement" ....................................................................................................... .............................11
3.2.
"Annual Report" ................................................................................................ .............................11
3.3.
"Authorized Take" ............................................................................................ .............................11
3.4.
" CDFG" ................................................................................................................ ...............................
it
3.5.
" CEQA" .................................................................................................................. .............................11
3.6.
" CESA" ................................................................................................................... .............................11
3.7.
"Changed Circumstances" ............................................................................. .............................11
3.8.
" Chapter.. ............................................................................................................ .............................li
3.9.
"Conditions" or "Conditions on Covered Activities" ............................ .............................11
3.10.
"Conserve," "Conserving," or " Conservation" ...................................... ...............................
12
3.11.
"Conservation Measure" ................................................................................ .............................12
3.12.
"Conservation Strategy" or " SCVHP ........................................................... .............................12
3.13.
"Covered Activities" ........................................................................................ .............................12
3.14.
"Covered Species" ............................................................................................ .............................12
3.15.
"Effective Date" ................................................................................................. .............................12
3.16.
"Evaluation Checklist" .................................................................................... .............................12
3.17.
"Federal Listed Species" ................................................................................. .............................12
3.18.
"Federal Permit" ............................................................................................... .............................12
3.19.
" ESA" .................................................................................................................... .............................12
3.20.
"Fully Protected Species" ............................................................................... .............................12
3.21.
"Implementing Entity .................................................................................... .............................13
3.22.
"Independent Conservation Assessment Team" ................................... .............................13
3.23.
"Listed Species" ................................................................................................ .............................13
3.24.
"Migratory Bird Treaty Act ........................................................................... .............................13
3.25.
" NCCPA" ................................................................................................................ .............................13
3.26.
" NEPA" .................................................................................................................. .............................13
2
Item IX.A.
3.27.
"Neighboring Landowner" ............................................................................ .............................13
3.28.
"Non-listed Species" ........................................................................................ .............................13
3.29.
"Participating Special Entity ......................................................................... .............................13
3.30.
"Party" and " Parties" ....................................................................................... .............................13
3.31.
"Permit Area" ..................................................................................................... .............................13
3.32.
" Permits .............................................................................................................. .............................13
3.33.
" Permittees" ....................................................................................................... .............................13
3.34.
"Planning Agreement" .................................................................................... .............................14
3.35.
"Planning Limit of Urban Growth" ............................................................. .............................14
3.36.
"Private Project Participant! ........................................................................ .............................14
3.37.
"Reserve Unit Management Plan" .............................................................. .............................14
3.38.
"Reserve System" .............................................................................................. .............................14
3.39.
"SCVHP" and " Plan" .......................................................................................... .............................14
3.40.
"SCVHP Fees" ...................................................................................................... .............................14
3.41.
" Section" .............................................................................................................. .............................14
3.42.
"State Listed Species" ...................................................................................... .............................14
3.43.
"State Permit" ..................................................................................................... .............................14
3.44.
"Take" and " Taking' .......................................................................................... ............................14.
4. Purposes of this Agreement ...................................................................................... .............................15
S. Incorporation ................................................................................................................. .............................16
5.1 Incorporation of the Pl an ........................................................................................... .............................16
5.2 Incorporation into the Permits ................................................................................ .............................16
6. Implementation
Roles and Responsibilities ....................................................... .............................16
6.1.
Permittees' Responsibilities ........................................................................ .............................16
6.2.
USFWS Responsibilities ................................................................................. .............................16
6.3.
CDFG Responsibilities .................................................................................... .............................16
6.4.
Role of Implementing Entity ........................................................................ .............................17
6.4.1.
SCVHP Implementation Key Deadlines for Compliance ..................... .............................17
6.5.
Collaboration among the Parties ................................................................ .............................17
6.6.
Dispute Resolution .......................................................................................... .............................18
Item IX.A. 3
6.6.1.
Notice of Dispute; Meet and Confer ........................................................... .............................18
6.6.2.
Elevation of Dispute ........................................................................................ .............................18
7. Take Authorization ...................................................................................................... .............................19
7.1.
Issuance of the Permits .................................................................................. .............................19
7.2.
Ongoing Role of Wildlife Agencies ............................................................. .............................19
7.3.
Authorized Take for Projects and Activities Implemented by Permittees ..............
20
7.4.
Extension of Take Authorization to Third Party Participants ..... :................................
20
7.4.1.
Private Project Participants ......................................................................... .............................21
7.4.1.1.
SCVHP Application Process ........................................................................ ...............................
21
7.4.1.2.
Extension of Authorized Take Coverage to Private Project Participants .................
21
7.4.1.3.
SCVHP Implementing Ordinances ............................................................ ...............................
22
7.4.2.
Participating Special Entities ..................................................................... ...............................
23
7.4.3.
Neighboring Landowners ............................................................................ ...............................
23
7.4.3.1.
Activities Covered by Neighboring Landowner Take Authorization ..........................
24
7.4.3.2.
Limitations of Neighboring Landowner Take Authorizations ....... ...............................
24
7.4.3.3.
Neighboring Landowner Certificates of Inclusion ............................. ...............................
24
7.5.
Contra Costa Goldfields ................................................................................ ...............................
2S.
7.6.
The Migratory Bird Treaty Act .................................................................. ...............................
25
7.7.
Activities Not Covered .................................................................................. ...............................
25
7.8.
Relationship of SCVHP to Three Creeks Habitat Conservation Plan ..........................
25
8. Conditions
on Covered Activities .......................................................................... ...............................
26
8.1.
Avoidance and Minimization of Impacts ............................................... ...............................
26
8.1.1.
Avoidance and Minimization of Impacts to Species Protected under Laws other
than the ESA or CESA ..................................................................................... ...............................
27
8.1.2.
Exemptions from Conditions to Avoid and Minimize Impacts ....... ...............................
27
8.2.
SCVHP Fees ....................................................................................................... ...............................
27
8.2.1.
Exemptions from SCVHP Fees .................................................................... ...............................
28
8.2.2.
Payment and Collection of Fees ................................................................ ...............................
28
8.3.
SCVHP Fee Credits .......................................................................................... ...............................
28
8.4.
Timing of Fee Payment ................................................................................. ...............................
29
8.5.
Adjustment of Fees ........................................................................................ ...............................
29
Item IX.A.
9. Creation of Reserve System ..................................................................................... ............................... 30
9.1. Criteria for Reserve System Lands ........................................................... ............................... 30
9.2. Permanent Protection of Reserve System Lands ................................ ............................... 31
9.2.1. Conservation Easements ............................................................................... .............................31
9.3. Requirement for a Reserve Unit Management Plan .......................... ............................... 32
9.4.
Stay -Ahead or Rough Proportionality Requirement ......................... ...............................
32
9.4.1.
Reserve System Lands Acquired Using State or Federal Funding ...............................
33
9.4.1
Failure to Stay Ahead or to Maintain Rough Proportionality ........ ...............................
33
9.4.11.
NCCPA Procedure for Addressing Failure to Maintain Rough Proportionality......
33
9.4.3.
Conveyance of Land in Lieu of SCVHP Fees to Maintain Rough Proportionality....
34
9.5.
Additional Criteria for Lands Conveyed in Lieu of SCVHP Fees ..... ...............................
35
9.6.
Lands Conveyed by Entities other than Permittees ........................... ...............................
35
9.6.1.
Lands in Private Mitigation Banks ........................................................... ...............................
35
9.7.
Gifts of Land ..................................................................................................... ...............................
35
10. Management of Reserve System Lands ............................................................... ............................... 35
10.1. Reserve Unit Management Plans .............................................................. ............................... 36
10.1.1. Role of the Wildlife Agencies in Preparation of Reserve Unit Management Plans 36
10.1.2. Preparation and Revision of Reserve Unit Management Plans ..... ............................... 36
10.2. Reserve Unit Management Plan Components ...................................... ............................... 37
10.3. Recreational Uses ........................................................................................... ............................... 37
10.4. Monitoring Program ....................................................................................... .............................37
10.5. Technical Advisory Committee ................................................................. ............................... 37
11. Monitoring, Adaptive Management and Changed Circumstances ............. ............................... 37
11.1. Monitoring .......................................................................................................... .............................38
11.2. Adaptive Management. ................................................................................................................ 38
11.2.1. Role of the Wildlife Agencies ..................................................................... ............................... 39
11.2.2. Role of Science Advisors .............................................................................. ............................... 39
11.2.3. Role of the Independent Conservation Assessment Team .............. ............................... 39
11.2.4. Advice from Other Land Management Agencies ................................... .............................40
11.2.5. Advice from the Publ ic ................................................................................. ............................... 40
Item IX.A. 5
11.2.6.
No Increase in Take ......................................................................................... .............................40
11.3.
Changed Circumstances ................................................................................. .............................40
11.3.1.
Initiating Responses to Changed Circumstances ................................ ...............................
40
12. Regulatory Assurances ............................................................................................... .............................41
12.1.
ESA Regulatory Assurances .......................................................................... .............................41
12.2.
NCCPA Regulatory Assurances .................................................................... .............................41
12.3.
Interim Obligations upon a Finding of Unforeseen Circumstances ............................42
12.4.
Section 7 Consultations regarding Covered Activities ...................... ...............................
42
12.5.
Assurances for Third Party Participants ............................................... ...............................
42
13. Funding ............................................................................................................................. .............................43
13.1.
Funding for Management and Monitoring in Perpetuity ................... .............................43
13.2.
Effect of Inadequate Funding ..................................................................... ...............................
43
13.3.
State and Federal Funding .......................................................................... ...............................
44
14. Reporting and Information Management ............................................................ .............................45
14.1.
Annual Report ................................................................................................... .............................45
14.2.
Monitoring Results .......................................................................................... .............................45
14.3. '
Information Management ............................................................................. .............................45
14.4.
Other Information .......................................................................................... ...............................
46
15. Modifications and Amendments .............................................................................. .............................46
15.1.
Administrative Changes ................................................................................. .............................46
15.2.
Minor Modifications of the SCVHP ........................................................... ...............................
46
15.3.
Amendment of this Agreement ................................................................... .............................47
15.4.
Amendment of the SCVHP and the Permits ............................................ .............................47
15.5.
Modification or amendment of SCVHP Deadlines .............................. ............................... 47
15.6.
General Land Use and Regulatory Authority of the County and Cities ......................48
16. Remedies and Enforcement ...................................................................................... .............................48
16.1.
Suspension of Federal Permit .................................................................... ............................... 48
16.2.
Reinstatement of Suspended Federal Permit ........................................ .............................48
16.3.
Suspension of the State Permit ................................................................... .............................49
16.3.1.
Failure to Maintain Rough Proportionality ............................................ .............................49
Item iX.A.
16.4.
Reinstatement of Suspended State Permit ............................................. .............................49
16.5.
Revocation of Federal Permit ...................................................................... .............................49
16.6.
Revocation of State Permit ......................................................................... ...............................
50
16:7.
Obligations in the Event of Suspension or Revocation ..................... ...............................
S0
16.8.
Emergency Suspension of Permits to Avoid jeopardy ...................... ...............................
50
16.9.
Force Majeure .................................................................................................. ...............................
51
16.10.
Inspections by Wildlife Agencies .............................................................. ...............................
S1
17. Term of Agreement ...................................................................................................... .............................51
17.1.
Effective Date ................................................................................................... ...............................
51
17.2.
Term of the Agreement ................................................................................ ...............................
52
17.3.
Term of the Permits ...................................................................................... ...............................
52
17.4.
Extension of the Permits ............................................................................. ...............................
52
17.5.
Withdrawal by a Permittee ........................................................................ ...............................
52
18. Miscellaneous Provisions .......................................................................................... .............................53
18.1.
Calendar Days .................................................................................................... .............................53
18.2.
Response Times .............................................................................................. ...............................
54
18.3.
Notices .................................................................................................................. .............................54
18.4.
Entire Agreement ............................................................................................. .............................55
18.5.
Limitations on Remedies ............................................................................. ...............................
55
18.6.
Defense ................................................................................................................ .............................55
18.7.
Attorneys' Fees ................................................................................................ ...............................
55
18.8.
Elected Officials Not to Benefit .................................................................. ...............................
56
18.9.
Availability of Funds ..................................................................................... ...............................
56
18.10.
Governing Law .................................................................................................. .............................56
18.11.
Duplicate Originals ........................................................................................ ...............................
56
18.12.
Relationship to the ESA, CESA, NCCPA and Other Authorities ....... ...............................
57
18.13.
No Third Party Beneficiaries ..................................................................... ...............................
57
18.14.
References to Regulations ............................................ :.......... .............................. ....................
57
18.15.
Applicable Laws .............................................................................................. ...............................
57
18.16.
Severability ........................................................................................................ .............................57
Item IX.A. 7
18.17. Due Authorization ..............................................................................:........... ............................... 57
18.18. Assignment ......................................................................................................... .............................58
18.19. Headings .............................................................................................................. .............................58
18.20. Legal Authority of USFWS ............................................................................ ............................... 58
18.21. Legal Authority of CDFG ............................................................................... ............................... 58
18.22. No Limitation on the Police Power of the Cities or the County ...... ............................... 58
EXHIBITS TO AGREEMENT:
EXHIBIT A - COVERED SPECIES
EXHIBIT B - MODEL IMPLEMENTING ORDINANCE
EXHIBIT C - NEIGHBORING LANDOWNER CERTIFICATE OF INCLUSION
8
Item IX.A.
AGREEMENT
1. PARTIES
This Implementing Agreement ( "Agreement"), made and entered into by and among the United
States Fish and Wildlife Service ( "USFWS ") of the United States Department of the Interior, the
California Department of Fish and Game ( "CDFG ") of the State of California Natural Resources
Agency, the Santa Clara Valley Habitat Agency (the "Implementing Entity"), the County of Santa
Clara ( "County"), the City of San Jose ( "San Jose "), the City of Gilroy ( "Gilroy"), the City of Morgan
Hill ( "Morgan Hill "), the Santa Clara Valley Water District ( "Water District"), and the Santa Clara
Valley Transportation Authority ( "VTA ") governs the implementation of the joint habitat
conservation plan and natural community conservation plan for the Santa Clara Valley (the "Santa
Clara Valley Habitat Plan," the "Plan," or the "SCVHP ") as of the Effective Date.
These entities may be referred to collectively as the "Parties' and individually as a "Party." The
USFWS and CDFG may be referred to collectively as the "Wildlife Agencies." San Jose, Gilroy, and
Morgan Hill may be referred to collectively as the "Cities" and each individually as a "City." The
Implementing Entity, County, Cities, Water District, and VTA may be referred to collectively as the
"Permittees" and each individually as a "Permittee."
2. RECITALS
The Parties have entered into this Agreement in consideration of the following:
2.1. In 2001, the preparation of a habitat conservation plan was included as an element of
the project description used for a USFWS biological opinion for the Coyote Valley Research Park
and four other projects. The habitat conservation plan was included to address the cumulative and
indirect effects of urban growth, infrastructure development and operations and maintenance
activities in Santa Clara County. In 2004, the County, San Jose, the Water District and the VTA
entered into a Memorandum of Understanding that stated their shared intent to develop a joint
habitat conservation plan and natural community conservation plan that would address certain
existing and future environmental regulatory requirements for their various activities, including
requirements pertaining to cumulative and indirect effects.
2.2. In 2005, the County, the Cities, the Water District, the VTA, USFWS and CDFG entered
into a planning agreement pursuant to the California Natural Community Conservation Planning
Act (the "Planning Agreement"). The Planning Agreement identified guidelines, criteria and
procedures for the preparation of a joint habitat conservation plan and natural community
conservation plan that would provide for the comprehensive management and conservation of
numerous wildlife species. The SCVHP has been prepared according to the process described in the
Planning Agreement.
Item IX.A.
2.3. The SCVHP is a plan to protect and enhance ecological diversity and function in a
substantial portion of Santa Clara County, while allowing appropriate and compatible growth and
development to occur in accordance with certain environmental laws. The Plan includes measures
that provide for the conservation and management of certain "covered" species, and that avoid,
minimize, and mitigate impacts on the "covered" species and their habitat resulting from various
public and private activities, including urban growth and a variety of road, water, and other needed
infrastructure construction and maintenance activities. The primary goal of the Plan is to fulfill the
requirements of the federal Endangered Species Act and the California Natural Community
Conservation Planning Act in order to obtain authorizations for the incidental take of certain
covered species that may result from these activities.
2.4. The federal Endangered Species Act ( "ESA") prohibits the "take" of species listed as
endangered or threatened under the ESA, as take is defined under federal law. Under Section 10 of
ESA, USFWS may issue a permit authorizing the incidental take of endangered or threatened
species during otherwise lawful activities if certain statutory requirements are met by the applicant
and such take will not appreciably reduce the likelihood of the survival and recovery of the species
in the wild. To obtain a federal incidental take permit, the applicant must submit a habitat
conservation plan describing, among other things, the steps the applicant will take to minimize and
mitigate to the maximum extent practicable the impact of such "taking." The Permittees submitted
the SCVHP to USFWS and applied for a federal permit for incidental take of certain "covered"
species within the area encompassed by the Plan. The incidental take permit issued by USFWS will
be issued concurrently with its execution of this Agreement.
2.5. Like the ESA, the California Endangered Species Act ( "CESA ") prohibits the take of
species listed as endangered, threatened or candidate species under CESA. The Natural Community
Conservation Planning Act ( "NCCPA ") allows CDFG to authorize by permit the take of any species
other than mountain lions (California Fish and Game Code section 4800 et seq.), including species
listed as an endangered, threatened or candidate species under CESA, where the conservation and
management of the species is provided for in a natural community conservation plan approved by
CDFG. Because the SCVHP was developed to meet the standards of the NCCPA, it will do more than
minimize and mitigate the impacts of the activities covered in the Plan, as the ESA requires. The
Plan will also contribute to the recovery of listed species and help prevent other species from
becoming threatened or endangered. The Permittees submitted the SCVHP to CDFG for approval
and permitting for take pursuant to NCCPA. CDFG will issue a permit based on the SCVHP
concurrently with its execution of this Agreement.
2.6. All of the Permittees intend to receive coverage under the federal incidental take
permit, and the state permit issued pursuant to the NCCPA, for certain "covered" activities that they
will implement, including infrastructure projects and operations and maintenance activities. In
addition, the County and the Cities intend to allow developers, infrastructure project proponents
and certain landowners to receive coverage under the permits for certain development and other
activities, subject to the conditions in the Permits. The Implementing Entity may also negotiate
agreements with other public entities to allow certain activities of such entities to be covered by the
permits, subject to the conditions in the Permits.
I[f,
Item IX.A.
2.7. The Permittees are agreeing to substantial commitments of land, natural resources,
financial resources, human resources and other assets to conserve and manage the "covered"
species, their habitats and other natural communities, in exchange for the assurances provided by
the Wildlife Agencies in this Agreement.
3. DEFINITIONS
The following terms as used in this Agreement will have the meanings set forth below. Terms
specifically defined in applicable federal or state statutes, including but not limited to, the ESA,
CESA or NCCPA or the regulations adopted by USFWS and CDFG under those statutes will have the
same meaning when used in this Agreement. Definitions used in this Agreement may elaborate on,
but are not intended to conflict with, such statutory or regulatory definitions.
3.1. "Agreement" means this Implementing Agreement.
3.2. "Annual Report'
The Annual Report prepared by the Implementing Entity about implementation of the SCVHP,
as provided in Agreement Section 14 and further described in SCVHP Chapter 8.11.
3.3. "Authorized Take" means the extent of incidental Take of Covered Species authorized
by USFWS in the Federal Permit issued to the Permittees pursuant to Section
10(a) (1) (B) of the ESA, and the extent of Take of Covered Species authorized by CDFG in
the State Permit issued to the Permittees pursuant to California Fish and Game Code
section 2835.
3.4. "CDFG" means the California Department of Fish and Game, a department of the
California Resources Agency.
3.5. "CEQA" means the California Environmental Quality Act (Pub. Resources Code §21000
et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act.
3.6. "CESA" means the California Endangered Species Act (Fish & G. Code, §2050 et seq.) and
all rules, regulations and guidelines promulgated pursuant to that Act.
3.7. "Changed Circumstances" as defined at 50 C.F.R. §17.3 means changes in
circumstances affecting a Covered Species or the geographic area covered by the SCVHP
that can reasonably be anticipated by the Parties and that can reasonably be planned for
in the SCVHP. Changed Circumstances and planned responses to Changed
Circumstances are more particularly defined in Agreement Section 11.3 and SCVHP
Chapter 10.2.1. Changed Circumstances do not include Unforeseen Circumstances.
3.8. "Chapter" means a chapter, subchapter, or section of the SCVHP.
3.9. "Conditions" or "Conditions on Covered Activities" means the avoidance and
minimization measures described in SCVHP Chapter 6, and the requirement to pay
certain fees, or to provide land or implement conservation actions in lieu of such fees,
described in SCVHP Chapter 9, which will be incorporated in Covered Activities, as
provided in Agreement Section 8.
Item IX.A. 11
3.10. "Conserve," "Conserving," or "Conservation" means to use, and the use of, methods
and procedures within the SCVHP Permit Area that are necessary to bring the federally
and state- listed Covered Species to the point at which the measures provided pursuant
to the ESA and CESA are not necessary, and to maintain or enhance the condition of the
non - listed Covered Species so that listing pursuant to the ESA and CESA will not become
necessary.
3.11. "Conservation Measure" means each action detailed in SCVHP Chapter 5 that is a
component of the Conservation Strategy.
3.12. "Conservation Strategy" or "SCVHP Conservation Strategy" means the conservation
strategy described in SCVHP Chapter S.
3.13. "Covered Activities" means the otherwise lawful activities and projects described in
SCVHP Chapter 2.3 that the Permittees or Third Party Participants may implement in
the Permit Area for which incidental Take is authorized by the Wildlife Agencies
pursuant to the Permits.
3.14. "Covered Species" means the species, listed and non - listed, whose conservation and
management are provided for in the SCVHP and for which incidental Take is authorized
by the Wildlife Agencies pursuant to the Permits. Covered Species are listed in Exhibit
A to this Agreement.
3.15. "Effective Date" means the date of the first business day after all of the following have
occurred: execution of this Agreement by all Parties; issuance of both of the Permits;
adoption of an SCVHP implementing ordinance by each of the Cities and the County, as
provided in Agreement Section 17.1, and formation of the Implementing Entity
described in 3.21 of the Agreement.
3.16. "Evaluation Checklist" means the checklist prepared by the Implementing Entity to
guide the County and the Cities' review of habitat plan application packages submitted
by private project proponents.
3.17. "Federal Listed Species" means the Covered Species that are listed as threatened or
endangered species under the ESA as of the Effective Date, and the Covered Species that
are listed as threatened or endangered pursuant to the ESA during the term of the
SCVHP as of the date of such listing.
3.18. "Federal Permit" means the federal incidental take permit issued by USFWS to the
Permittees based on the SCVHP pursuant to Section 10(a) (1)(B) of the ESA.
3.19. "ESA" means the Federal Endangered Species Act of 1973, as amended (16 U.S.0 § 1531
et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act.
3.20. "Fully Protected Species" means any species identified in California Fish and Game
Code sections 3511, 4700, 4600, 5050 or 5515.
12
Item IX.A.
3.21. "Implementing Entity" means the Santa Clara Valley Habitat Agency, a joint exercise of
powers agency composed of the County and the Cities, formed pursuant to the joint
Powers Act, Gov. Code § 6500 et seq.
3.22. "Independent Conservation Assessment Team" means the Independent
Conservation Assessment Team as provided in Agreement Section 11.2.3 and further
described in SCVHP Chapter 7.2.3.
3,23. "Listed Species" means a species (including a subspecies, or a distinct population
segment of a species) that is listed as an endangered or threatened species under the
ESA or as an endangered, threatened or candidate species under CESA.
3.24. "Migratory Bird Treaty Act' means the federal Migratory Bird Treaty Act (16 U.S.C.
§703 et seq.) and all rules, regulations and guidelines promulgated pursuant to that Act.
3.25. "NCCPA" means the California Natural Community Conservation Planning Act (Fish & G.
Code, §2800 et seq.), as amended on January 1, 2012, and all rules, regulations and
guidelines promulgated pursuant to that Act.
3.26. "NEPA" means the National Environmental Policy Act (42 U.S.C. §4321 et seq.) and all
rules, regulations and guidelines promulgated pursuant to that Act.
3.27. "Neighboring Landowner" means an owner of specific types of agricultural lands that
are within one mile of lands included in the Reserve System who has received a special
certificate (Exhibit C) from the Implementing Entity pursuant to Agreement Section
7.4.3 that extends Authorized Take coverage for certain Covered Species resulting from
certain agricultural land uses.
3.28. "Non- listed Species" means a species (including a subspecies, or a distinct population
segment of a species) that is not listed as endangered or threatened under the ESA or as
an endangered, threatened, or candidate species under CESA.
3.29. "Participating Special Entity" means an entity that is not subject to the City's or the
County's land use or other regulatory authority that has entered into a special
agreement with the Implementing Entity pursuant to Agreement Section 7.4.2 to receive
Authorized Take coverage for a project or activity within the Permit Area.
3.30. "Party" and "Parties" mean the signatories to this Agreement, individually and
collectively.
3.31. "Permit Area" means the area within which the Permittees are seeking authorization
from the Wildlife Agencies for the Take of Covered Species resulting from Covered
Activities. The Permit Area is further described in SCVHP Chapter 1.2.2 and is depicted
in Figure 1 -2 of the SCVHP.
3.32. "Permits" means the Federal Permit and the State Permit, which incorporate the SCVHP
and the Agreement by reference.
3.33. " Permittees" means the Implementing Entity, County, Cities, Water District, and VTA.
Item IX.A. 13
3.34. "Planning Agreement" means the document executed in 2005, by the County, the
Cities, the Water District, the VTA, USFWS and CDFG pursuant to the NCCPA to guide the
preparation of the SCVHP.
3.35. "Planning Limit of Urban Growth" means the geographical extent of Authorized Take
coverage for urban development as described in SCVHP Chapter 2.2.3 and further
explained in SCVHP Chapter 2.2.1, and as delineated in Figure 2 -2 of the SCVHP.
3.36. "Private Project Participant' means a private person or entity that has received Take
Authorization coverage from a City or the County pursuant to Agreement Section 7.4.1
for a project or activity within the Permit Area that is subject to the land use or other
regulatory authority of the City or the County.
3.37. "Reserve Unit Management Plan" means a Reserve Unit Management Plan as
provided in Agreement Section 10.1 and as further described in SCVHP Chapter 5.2.5.
3.38. "Reserve System" means the land acquired and dedicated in perpetuity through either
a fee interest or conservation easement intended to. meet the preservation,
conservation, enhancement and restoration objectives of the Conservation Strategy of
the SCVHP. The Reserve System may also include up to one thousand (1,000) acres of
land owned by the Santa Clara Valley Open Space Authority as of the Effective Date, on
which the recordation of a conservation easement is precluded by law, without
recordation of a conservation easement, provided the lands otherwise meet the
requirements for Reserve System lands as further described in SCVHP Chapter 5.2.3 and
SCVHP Chapter 9.4.2.
3.39. "SCVHP" and "Plan' mean the joint habitat conservation plan and natural community
conservation plan prepared by the Permittees and approved by the Wildlife Agencies
under Section 10 of the ESA and Section 2820 of the California Fish and Game Code.
3.40. "SCVHP Fees" means the Land Cover Fee, the Serpentine Fee, the Nitrogen Deposition
Fee, the Endowment Fee Component, the Plan Preparation Cost Recovery Fee
Component, the Wetland Fee, the Temporary Impact Fee, and the Burrowing Owl Fee, as
further described in SCVHP Chapter 9,4.1.
3.41. "Section" means a section or subsection of this Agreement.
3.42. "State Listed Species" means the Covered Species that are listed as threatened or
endangered species, or a candidate for such status, under CESA, as of the Effective Date,
and the Covered Species that are listed as threatened or endangered, or a candidate for
such status pursuant to CESA during the term of the SCVHP, as of the date of such listing.
3.43. "State Permit' means the state Take permit issued to the Permittees based on the
SCVHP pursuant to Section 2835 of the California Fish and Game Code.
3.44. "Take" and "Taking" have the same meaning provided by the ESA and its implementing
regulations with regard to activities subject to the ESA, and also have the same meaning
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Item IX.A.
provided in section 86 of the California Fish and Game Code with regard to activities
subject to CESA and NCCPA.
3.45. "Third Party Participants" means Private Project Participants, Participating Special
Entities, Neighboring Landowners and other persons or entities that that are not
Permittees and that receive Authorized Take coverage from a Permittee in accordance
with Agreement Section 7.4.
3.46. "Three Creeks Habitat Conservation Plan" and "3CHCP" mean the habitat
conservation plan being developed by the Santa Clara Valley Water District to protect
and enhance habitats for aquatic species and provide conservation for species affected
by the District's on -going water supply operations in the northern Santa Clara Valley.
3.47. "Unforeseen Circumstances" under the Federal Permit, as defined at 50 C.F.R. §17.3,
means changes in circumstances affecting a Covered Species or geographic area covered
by the SCVHP that could not reasonably have been anticipated by the Permittees and
USFWS at the time of the SCVHP's negotiation and development, and that result in a
substantial and adverse change in the status of a Covered Species. "Unforeseen
Circumstances" under the State Permit means changes affecting one or more species,
habitat, natural community, or the geographic area covered by a conservation plan that
could not reasonably have been anticipated at the time of plan development, and that
result in a substantial adverse change in the status of one or more Covered Species.
3.48. " USFWS" means the United States Fish and Wildlife Service, an agency of the United
States Department of Interior.
3.49. "Wetlands" means the wetlands types described in SCVHP Chapter 3.3.5, including
coastal and valley freshwater marsh and seasonal wetlands.
3.50. "Wildlife Agencies" means USFWS and CDFG.
4. PURPOSES OF THIS AGREEMENT
This Agreement defines the Parties' roles and responsibilities and provides a common
understanding of actions that will be undertaken to avoid, minimize and mitigate the effects on the
Covered Species caused by the Covered Activities within the Permit Area, and to provide for the
conservation of the Covered Species within the Permit Area. The purposes of this Agreement are:
• To ensure implementation of each of the terms and conditions of the Permits;
• To note the existence of long term assurances to the Permittees that, pursuant to the federal
"No Surprises" provisions of 50 Code of Federal Regulations, sections 17.22(b)(5) and
17.32(b)(5), and California Fish and Game Code section 2820, subdivision (0, as long as the
terms and conditions of this Agreement, the SCVHP, and the Permits are fully satisfied, the
Wildlife Agencies will not require of the Permittees the commitment of additional land,
water or financial compensation or additional restrictions on the use of land, water, or other
natural resources, either to minimize and mitigate the impacts of Authorized Take, or to
Item IX.A. 15
provide for the conservation and management of the Covered Species in the Permit Area,
except as provided in this Agreement and the SCVHP; and
s To describe remedies and recourse should any Parry fail to perform its obligations as set
forth in this Agreement.
S. INCORPORATION
5.1 Incorporation of the Plan
The SCVHP and each of its provisions are intended to be, and by this reference are, incorporated
herein. This Agreement is intended to specify the obligations of the Parties under the SCVHP,
recognizing that the SCVHP is a conservation plan and was not drafted as a contract. In the event of
any direct contradiction, conflict or inconsistency between this Agreement and the SCVHP, the
terms of this Agreement will control. In all other cases, the provisions of this Agreement and the
SCVHP will be interpreted to be consistent with and complementary to each other.
5.2 Incorporation into the Permits
This Agreement and the SCVHP shall be incorporated as terms and conditions of the Permits. In the
event of any direct contradiction among the provisions of the SCVHP, the terms of this Agreement
or the terms of the Permits, the terms of the Permits shall control. Each Party acknowledges that no
representation, inducement, promise or agreement, oral or otherwise, has been made by the other
Party or anyone acting on behalf of the other Party that is not embodied in the SCVHP, this
Agreement, or the Permits.
6. IMPLEMENTATION ROLES AND RESPONSIBILITIES
The general roles and responsibilities of the Parties for the implementation of the SCVHP are as
follows.
6.1. Permittees' Responsibilities
The Permittees will fully and faithfully perform all obligations assigned to them collectively, and to
each of them individually, under this Agreement, the SCVHP, and the Permits.
6.2. USFWS Responsibilities
USFWS will provide timely technical assistance and review, collaboration and consultation to the
Permittees regarding implementation of the SCVHP, as provided in this Agreement and the SCVHP,
throughout the duration of the Federal Permit. USFWS will also use all reasonable efforts to assist
the Permittees to achieve the SCVHP conservation and recovery goals for the Covered Species, as
described in SCVHP Chapters 8.7.3 and 9.4.3.
6.3. CDFG Responsibilities
CDFG will provide timely technical assistance and review, collaboration and consultation to the
Permittees regarding implementation of the SCVHP, as provided in this Agreement and the SCVHP,
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Item IX.A.
throughout the duration of the State Permit. CDFG will also use all reasonable efforts to assist the
Permittees to achieve the SCVHP conservation and recovery goals for the Covered Species, as
described in SCVHP Chapters 8.7.3 and 9.4.3.
6.4. Role of Implementing Entity
The Permittees collectively are ultimately responsible for compliance with all applicable terms and
conditions of the Permits. The Implementing Entity will have primary responsibility for
implementing the SCVHP on behalf of the other Permittees. The Implementing Entity may delegate
the implementation of specific actions to other Parties or qualified third parties, including but not
limited to public agencies, private conservation organizations, university scientists, and
contractors, but the Implementing Entity itself will remain responsible for ensuring overall
implementation of the SCVHP on behalf of the other Permittees in accordance with the Permits. As
further described in SCVHP Chapter 8.3, the Implementing Entity's responsibilities generally
include, but are not necessarily limited to, implementation and management of all of the following
elements of the SCVHP:
• administration of the SCVHP, including staffing, and providing necessary scientific, legal,
and financial expertise and consulting services;
• oversight of compliance with the Permits;
• creation of the Reserve System;
• management of Reserve System Lands;
• monitoring, adaptive management and changed circumstances;
• funding; and
• information management
6.4.1. SCVHP Implementation Key Deadlines for Compliance
The Parties' agreement about how key elements of the SCVHP will be implemented over time are
summarized in the implementation compliance deadlines set forth in Table 8 -2 of the SCVHP and
further explained in SCVHP Chapter 8.12. The Parties recognize that, under certain circumstances, it
might be reasonable and appropriate to modify one or more of the deadlines by modifying or
amending the SCVHP, this Agreement, or the Permits, as provided in Agreement Section 15.
However, absent such a modification or amendment, the Implementing Entity, on behalf of the
Permittees, will meet the implementation deadlines set forth in SCVHP Table 8-2.
6.5. Collaboration among the Parties
The Parties agree that successful collaboration among them is important to the success of the
SCVHP. Notwithstanding any other Section of this Agreement or Chapter of the SCVHP, each Party
will make a reasonable effort to: meet and confer with any other Party upon the request of that
Party to address matters pertaining to the SCVHP, the Permits, or this Agreement; provide relevant,
non - proprietary, non - confidential information pertaining to the SCVHP upon the request of any
Party; and provide timely responses to requests from any Party for advice, concurrence, or review
and comment on reports, surveys or other documents, regarding matters pertaining to the SCVHP,
the Permits, or this Agreement.
Item IX.A. 17
6.6. Dispute Resolution
The Parties recognize that disputes concerning implementation or interpretation of this Agreement,
the SCVHP, and the Permits may arise from time to time. The Parties intend to resolve most
disputes at the staff or field personnel level. However, the Parties recognize that some disputes
might not be resolved at the staff or field personnel level. The Parties agree to work together in
good faith to resolve such disputes using the informal dispute resolution procedure set forth in this
Section. Any Party may seek any available remedy without regard to this Section if the Party
concludes that circumstances so warrant. However, unless the Parties agree upon another dispute
resolution process, or unless a Party has initiated administrative proceedings or litigation related to
the subject of the dispute in federal or state court, the Parties agree to use the following procedures
to attempt to resolve disputes.
6.6.1. Notice of Dispute; Meet and Confer
If a Wildlife Agency objects to any action or inaction by any Permittee on the basis that the action or
inaction is inconsistent with the SCVHP, the Permits, or this Agreement, it will so notify the
Permittee and the Implementing Entity and when appropriate, other Wildlife Agencies, in writing,
explaining the basis of such objection. The Permittee or Implementing Entity will respond to the
notice within thirty (30) days of receiving it, stating what actions the Permittee or Implementing
Entity proposes to take to resolve the objection or, alternatively, explaining why the objection is
unfounded. If the response resolves the objection to the satisfaction of the Wildlife Agency, the
agency will so notify the Permittee and the Implementing Entity, and the Permittee or
Implementing Entity, as appropriate, will implement the actions, if any, proposed in the response to
the agency. If the response does not resolve the objection to the Wildlife Agency's satisfaction, the
agency will notify the Permittee or Implementing Entity accordingly, and the agency, the Permittee
and the Implementing Entity will meet and confer to attempt to resolve the dispute. The meeting
will occur within thirty (30) days after the Permittee or Implementing Entity receives the Wildlife
Agency's response, or at such later time as the Permittee, the Implementing Entity and the Wildlife
Agency may agree. A representative of the Implementing Entity will take notes at the meeting,
summarize the outcome, and distribute meeting notes to each Party in attendance.
The Implementing Entity or any other Permittee will use the same procedure to raise and to resolve
objections to any action or inaction of a Wildlife Agency, and the Wildlife Agency will respond in the
same manner to notices delivered by any Permittee.
6.62. Elevation of Dispute
If the Parties do not resolve a dispute after completing the dispute resolution procedure in
Agreement Section 6.6.1, any one of the Parties may elevate the dispute to a meeting of the chief
executives of the involved Parties. For purposes of this provision, "chief executive' means the city
manager of a city, the county executive of the County, the chief executive officer of the Water
District, the general manager of the VTA, the executive director of the Implementing Entity, the
CDFG Regional Manager, and the USFWS Field Supervisor. Each Party will be represented by its
chief executive in person or by telephone at the meeting, and the meeting will occur within forty-
five (45) days of a request by any Party following completion of the dispute resolution procedure.
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Item IX.A.
7. TAKE AUTHORIZATION
As of the Effective Date, the Permittees may Take the Covered Species, provided the Take is
incidental to the implementation of Covered Activities in the Permit Area, as further authorized by
and subject to the conditions of this Agreement, the SCVHP, and the Permits. The Covered Activities
include all activities identified as such in SCVHP Chapter 2.3. The Permits do not authorize Take
resulting from projects or activities that are not identified as Covered Activities in SCVHP Chapter
2.3.
The Permittees' Take authority covers all of their respective elected officials, officers, directors,
employees, agents, subsidiaries, and contractors who engage in any Covered Activity. Each
Permittee will be responsible for supervising compliance with the relevant terms and conditions of
the Permits by its own elected officials, officers, etc., and all contracts between a Permittee and any
such person or entity regarding the implementation of a Covered Activity will require compliance
with the Permits. The Implementing Entity will periodically provide an educational program to fully
inform all such persons and entities of the relevant terms and conditions of the Permits. In this
context, 'periodically' means at least once every five years or sooner if at least 50x/0 of the targeted
positions have new personnel.
7.1. Issuance of the Permits
Concurrent with its execution of this Agreement, and after satisfaction of all other applicable legal
requirements, USFWS will issue the Permittees a permit under Section 10(a)(1)(B) of the ESA (the
"Federal Permit "). The Federal Permit will authorize incidental take of all Federal Listed Covered
Species resulting from Covered Activities in the Permit Area. Subject to compliance with all other
terms of this Agreement, the Federal Permit will take effect for all Non - listed Covered Species upon
the listing of such species under the ESA.
Concurrent with its execution of this Agreement, and after satisfaction of all other applicable legal
requirements, CDFG will issue the State Permit.
7.2. Ongoing Role of Wildlife Agencies
As of the Effective Date, the Permittees may implement Covered Activities and extend Authorized
Take coverage to Third Party Participants in accordance with the Permits without the prior
approval of the Wildlife Agencies, except as provided in Agreement Section 7.2.1. As further
described in SCVHP Chapter 8.7.3, the Wildlife Agencies' will monitor implementation of the SCVHP
to ensure overall compliance with the Permits. To ensure that the Wildlife Agencies are adequately
informed about the Permittees' use and extension of Authorized Take coverage, the Permittees will
provide copies of any application and supporting information required in SCVHP Chapter 6.8 for
any Covered Activity upon the request of any Wildlife Agency.
As further described in SCVHP Chapter 8.7.3, the Wildlife Agencies' approval is required for certain
components of the conservation strategy and specific projects. The Wildlife Agencies will be third -
party beneficiaries on conservation easements recorded on Reserve System lands, as further
described in SCVHP Chapter 8.6.3. The Wildlife Agencies will also participate in implementation of
the SCVHP adaptive management program, as further described in SCVHP Chapter 7.
Item IX.A. 19
7.3. Authorized Take for Projects and Activities Implemented by Permittees
Each Permittee will ensure that all Covered Activities it implements comply with the Permits. As
further described in SCVHP Chapter 8.7.1, as of the Effective Date, each Permittee will document
such compliance and provide a copy of that documentation to the Implementing Entity, which will
maintain a record of compliance documentation for all Covered Activities implemented by
Permittees.
Within one (1) month after the Effective Date, the Permittees will develop a template to standardize
the form in which they document their compliance with the Permits. The template will be
substantively similar to the "Habitat Plan Application Package" for Private Project Participants, as
described in Agreement Section 7.4 and SCVHP Chapter 6.7 and SCVHP Chapter 6.8. However, the
Permittees may adapt the form of the Habitat Plan application package for their use as they deem
appropriate. Until the template is developed for Covered Activities implemented by the Permittees,
the Permittees will use the Habitat Plan Application Package used for Private Project Participants.
When one or more SCVHP Fees are required for a Covered Activity implemented by a Permittee, the
Implementing Entity will calculate the required fee amount, and the Permittee will transfer that
amount to the Implementing Entity before initiating the Covered Activity. As further described in
SCVHP Chapter 9.4.1, Permittees may use any applicable alternative to fee payment allowed in the
SCVHP, including, but not limited to, providing suitable land in lieu of some or all fees. Permittees
with the ability to implement actions described in SCVHP Chapter 5, pertaining to the SCVHP
Conservation Strategy, or SCVHP Chapter 7, pertaining to the SCVHP monitoring and adaptive
management program, that contribute to the successful implementation of the SCVHP Conservation
Strategy, may obtain a credit against all or a portion of a required fee amount in exchange for
implementation of those actions. The Implementing Entity will prepare a written determination of
whether any such credit proposed by a Permittee conforms to the SCVHP and is approved. The
written determination will include the amount of any approved credit, as described in SCVHP
Chapter 9.4.1.
Take Authorization coverage for any Covered Activity implemented by a Permittee will take effect
upon the Permittee's delivery to the Implementing Entity of its documentation of compliance with
this Agreement, the SCVHP, and the Permits, and any required fee amount or any fee alternative
approved by the Implementing Entity.
7.4. Extension of Take Authorization to Third Party Participants
As further provided by the Permits, Authorized Take coverage may be extended to "Third Party
Participants," which include "Private Project Participants," "Participating Special Entities" and
"Neighboring Landowners." The Implementing Entity may extend Authorized Take coverage to
Participating Special Entities and Neighboring Landowners and will be responsible for determining
whether applications or requests from potential Participating Special Entities and Neighboring
Landowners comply with all applicable terms and conditions of the Permits. The County and Cities
may extend Authorized Take coverage to Private Project Participants and will be responsible for
determining whether applications from potential Private Project Participants comply with all such
20
Item IX.A.
terms and conditions and will make findings supporting such determination before extending
Authorized Take coverage.
7.4.1. Private Project Participants
The County and the Cities will each require proponents of private projects that are subject to their
land use or other regulatory authority and fall within the categories of projects and activities
described in SCVHP Chapter 2.3 to comply with all applicable terms and conditions of the Permits,
and will extend Authorized Take coverage to such projects, as provided in this Section.
7.4.1.1. SCVHP Application Process
As further described in SCVHP Chapter 6.7.2, the County and the Cities will require proponents of
private projects that are subject to their land use or other regulatory authority and fall within the
categories of projects and activities described in SCVHP Chapter 2.3 to submit an application
package as described in SCVHP Chapter 6.8 and will review the application package based on an
"Evaluation Checklist" that will be prepared by the Implementing Entity. The County's and Cities'
review of the application package will occur concurrently with the environmental review of the
project pursuant to CEQA, for projects subject to CEQA.
Based on its review of each application package, the applicable City or the County will prepare a
written determination regarding whether the private project, as proposed in the application
package, includes all applicable terms and conditions of the Permits and that take associated with
the implementation of the proposed project is properly authorized through the Permits. If the City
or County concludes that the project as proposed does not include all applicable terms and
conditions, it will explain the deficiency or omission in writing to the private project proponent and
will reject the application. If the City or County concludes that the project as proposed includes all
applicable terms and conditions, it will prepare a written determination to that effect (a
"Compliance Determination ").
The Cities and the County will provide each Compliance Determination to the Implementing Entity
and maintain a copy of all SCVHP application packages for which they have prepared a Compliance
Determination, which shall be made available to the Implementing Entity as part of annual and
other reviews.
Nothing in this Section shall be construed to affect the ability of the County or a City to determine
that an application for a private project is incomplete or to deny a private project application for
any reason unrelated to the SCVHP or the Permits.
7.4.1.2. Extension of Authorized Take Coverage to Private Project Participants
If a City or the County prepares a Compliance Determination for a private project following
completion of the SCVHP application process, the private project proponent will be eligible for
Authorized Take coverage as a Private Project Participant. The City or County will require the
private project proponent to comply with all applicable terms and conditions of the Permits. The
City or County may enter into an agreement in which the project's proponent assumes the
obligation to comply with such terms and conditions or may require such compliance as a condition
of project approval. Once the agreement is entered into or the conditions of approval are imposed,
Item IX.A. 21
all applicable SCVHP Fees have been paid to the Implementing Entity as provided in Agreement
Section 8.2 and further described in SCVHP Chapter 9.4.1, and any lands in lieu of fees have been
provided as provided in Agreement Section 8.2 and further described in SCVHP Chapter 8.6.7, and
the City or County has otherwise finally approved the project, the applicable City or the County will
extend Authorized Take coverage to the project proponent. The project proponent thereafter will
have Authorized Take coverage as a Private Project Participant.
Once Authorized Take coverage has been extended to a Private Project Participant, it will remain in
effect with regard to the project for as long as the Private Project Participant fully complies with all
applicable terms and conditions of the Permits, unless:
• the Wildlife Agencies have suspended or revoked the Permits;
• Take has not yet occurred; and
• the Wildlife Agencies determine that Take caused by the project would result in jeopardy.
If the Private Project Participant does not comply with such terms and conditions, or if the
applicable City or County suspends or revokes its approval of the project, the City or County will
also suspend or revoke the Authorized Take coverage for the project.
The County and the Cities will not require Private Project Participants to provide any additional
mitigation to address impacts to Covered Species beyond what is required in the Permits for
purposes of extending Authorized Take; provided, however, that the County and Cities may impose
additional requirements for purposes of other state or federal environmental permits, e.g., permits
under the Federal Clean Water Act.
7.4.1.3. SCVHP Implementing Ordinances
Before the Effective Date, the Cities and the County will each consider the adoption of an SCVHP
implementing ordinance substantively similar to the model ordinance attached to this Agreement
as Exhibit B that sets forth the application process for potential Private Project Participants. The
implementing ordinance will, among other things: provide for the imposition of SCVHP Fees, as
provided in Agreement Section 8.2 and further described in SCVHP Chapter 9.4.1; establish the
jurisdiction's procedure for extending Authorized Take coverage to Private Project Participants, as
provided in this Agreement Section 7.4.1; and provide for the conveyance of land in lieu of SCVHP
Fees, in accordance with Agreement Section 8.3 and SCVHP Chapter 8.6.7. The Cities and the County
may extend Authorized Take coverage to Private Project Participants only after adopting an SCVHP
implementing ordinance in accordance with this Section. In addition, the Permittees recognize that
the Wildlife Agencies' findings regarding the adequacy of funding for SCVHP implementation will be
based, in part, on the expectation that the Cities and the County will adopt implementing
ordinances that require the payment of SCVHP Fees and that failure by a City or the County to adopt
an implementing ordinance will prevent the Permits from taking effect.
The model ordinance in Exhibit B is intended to exemplify the necessary substantive terms of an
SCVHP implementing ordinance; it is not intended to dictate the precise terms of each such
ordinance. The County and each City may each adapt the model ordinance to reflect its
independent findings, to maximize administrative efficiency, or for other reasons, provided the
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Item IX.A.
substance of the operative terms in the model ordinance is reflected in each implementing
ordinance.
7.4.2. Participating Special Entities
As further described in SCVHP Chapter 8.4, the Implementing Entity may extend Authorized Take
coverage to public entities that are not Permittees, including, but not limited to, school, water,
irrigation, transportation, park and other districts and utilities, pursuant to a contractual agreement
that defines all planning, implementation, management, enforcement and funding responsibilities
necessary for the entity to comply with the Permits. Such public entities thereafter will have
Authorized Take coverage as Participating Special Entities.
The Implementing Entity may, with Wildlife Agency approval, enter into an agreement with a
Participating Special Entity if the Participating Special Entity explains how it will comply with all
applicable terms and conditions of the Permits in an application satisfying the criteria detailed in
SCVHP Chapter 6.8. Among other things, the agreement must adequately address the legal and
equitable remedies available to the Implementing Entity if the Participating Special Entity fails to
perform its contractual obligations. As provided in SCVHP Chapter 8.4, after execution of such an
agreement and the payment of all fees specified by the Implementing Entity, the Implementing
Entity may issue a "Participating Special Entity Certificate of Inclusion' to the Participating Special
Entity that describes the scope of its Authorized Take coverage and sets forth the conservation
measures the Participating Special Entity is required to implement. A Participating Special Entity
Certificate of Inclusion template will be developed by the Implementing Entity and approved by the
Wildlife Agencies prior to the Implementing Entity extending authorized take coverage to any
Participating Special Entity. The Implementing Entity will enforce the terms of the Permits with
regard to any such Participating Special Entity and will withdraw the Certificate of Inclusion and
terminate any Authorized Take coverage extended to the Participating Special Entity if the
Participating Special Entity fails to comply with such terms.
7.4.3. Neighboring Landowners
The Implementing Entity may extend Authorized Take coverage to owners of farmlands, as further
described in SCVHP Chapter 10.2.7, and as provided herein. Owners of farmlands are eligible to
receive Authorized Take coverage as a Neighboring Landowner for any portion of their lands that is
within one mile of the boundary of lands included in the Reserve System. For purposes of this
Section, "farmlands" means lands in production at the time applicable reserve unit is created on
which normal agricultural practices are conducted, including, but not limited to, crop planting and
production, irrigation and fertilization, soil tilling, crop harvesting, grazing including intensive
livestock grazing on irrigated pasture, forage production, animal production and husbandry, and
other associated activities such as fence construction and maintenance, vehicle or horse use, and
construction and maintenance of typical farm outbuildings. Authorized Take for Neighboring
Landowners will cover only normal agricultural practices. Participation in the SCVHP as a
Neighboring Landowner is voluntary; farmland owners are not required by the SCVHP to seek
Authorized Take coverage for normal agricultural practices.
Item IX.A. 23
7.4.3.1. Activities Covered by Neighboring Landowner Take Authorization
Neighboring Landowner Take Authorizations will cover routine agricultural practices, as further
described in SCVHP Chapter 10.2.7, including without limitation normal crop rotation practices in
which land is periodically fallowed and subsequently returned to cultivation.
7.4.3.2. Limitations of Neighboring Landowner Take Authorizations
Neighboring Landowner Take Authorizations are limited to the Take of three Covered Species
whose populations have the potential to expand into farmlands from Reserve System lands. These
three Covered Species are California red - legged frog, California tiger salamander, and western pond
turtle. Neighboring Landowner Take Authorizations therefore will not cover take of other Covered
Species or Take that occurred on farmlands before Reserve System lands were established within
one mile of the farmlands. Neighboring Landowner Take Authorizations will cover only normal
agricultural practices that occur within one mile of the boundary of Reserve System lands.
Neighboring Landowner Take Authorizations will not cover:
• conversion of farmlands to non - agricultural uses;
• conversion of crop lands to permanent crops, such as vineyards and orchards;
• non - agricultural uses;
• non - agricultural activities on farmlands; or
• pesticide use.
The Implementing Entity will establish the term of Neighboring Landowner Take Authorizations,
which in no event will exceed the term of the Permits.
7.4.3.3. Neighboring Landowner Certificates of Inclusion
The Implementing Entity may extend Neighboring Landowner Take Authorization coverage to a
farmland owner by issuing the landowner a Neighboring Landowner Certificate of Inclusion
(Exhibit C) that reflects the requirements of Agreement Section 7.4.3 following the documentation
of baseline environmental conditions on the farmlands. Farmland owners seeking a Neighboring
Landowner Take Authorization may either retain their own qualified biologist to prepare a baseline
conditions report or may request the Implementing Entity to evaluate and record the baseline
environmental conditions. A farmland owner that uses the Implementing Entity for this purpose
will reimburse the Implementing Entity's costs. Farmland owners are responsible for paying the
costs of surveys and reports required to obtain a Neighboring Landowners Take Authorization. For
purposes of this provision, a "qualified biologist" is a professional biologist approved by the
Implementing Entity, USFWS and CDFG, as further described in SCVHP Chapter 6.8.5. The baseline
conditions report must contain, at a minimum, a description of the extent and quality of Covered
Species habitat present on the farmlands, the results of Covered Species surveys on the lands, and
any records of Covered Species occurrences within one mile of the lands. The Implementing Entity
will review all baseline conditions reports submitted by farmland owners to ensure that they are
complete and based on accepted scientific practices for species and habitat surveys, and will reject
incomplete or inadequate reports. Once the baseline environmental conditions have been
documented in a complete and adequate baseline conditions report, and subject to the terms and
24
Item IX.A.
conditions in this Agreement Section 7.4.3 and SCVHP Chapter 10.2.7, the Implementing Entity will
issue the owner of the farmlands a Certificate of Inclusion providing Neighboring Landowner Take
Authorization coverage for normal agricultural practices on the land.
The Implementing Entity will require the covered farmland owner to sign the Neighboring
Landowner Certificate of Inclusion. Neighboring Landowner Certificates of Inclusion will not be
transferable. Subsequent owners of farmlands covered by a Neighboring Landowner Certificate of
Inclusion must request the Implementing Entity to issue, and must sign, a new Neighboring
Landowner Certificate of Inclusion, if they choose to continue enrollment. Subsequent owners of
covered farmlands will not, however, be required to prepare, or to ask the Implementing Entity to
prepare, a new baseline conditions report if there is no lapse in coverage under or compliance with
the Neighboring Landowner Certificate of Inclusion.
The Implementing Entity will maintain a record of all Neighboring Landowner Certificates of
Inclusion, and the size and location of lands covered by them, and will include a summary of this
information in its Annual Report. Copies of Neighboring Landowner Certificates of Inclusion will be
provided to the Wildlife Agencies upon request.
7.5. Contra Costa Goldfields
Nothing in the Permits is intended or will be construed to allow the Take of Contra Costa goldfields
(Lasthenia conjugens), as further described in SCVHP Chapter 6.3.
7.6. The Migratory Bird Treaty Act
The Federal Permit will constitute a Special Purpose Permit under the Migratory Bird Treaty Act as
provided at 50 Code of Federal Regulations section 21.27 for the Take of least Bell's vireo (Vireo
bellii pusillus), subject to the terms and conditions specified in the Federal Permit, as of the Effective
Date. The Special Purpose Permit will be valid for a period of three (3) years from the Effective
Date, provided the Federal Permit remains in effect for such period. The Special Purpose Permit will
be renewed in accordance with the Migratory Bird Treaty Act provided that the Permittees remain
in compliance with the Federal Permit. Each such renewal will be valid for the maximum period
allowable under the applicable regulations at the time of the renewal (which, as of the Effective
Date, is three (3) years), provided that the Federal Permit remains in effect for such period. If and
when any other Covered Species that is a migratory bird becomes a Federal Listed Species, the
Federal Permit will automatically constitute a Special Purpose Permit for that species as of the date
the Federal Permit becomes effective as to such species, as provided in Agreement Section 7.1.
7.7. Activities Not Covered
Projects and activities that are not Covered Activities, as described in SCVHP Chapter 2.4, will not
receive Authorized Take Coverage and are not subject to the terms and conditions of the Permits.
7.8. Relationship of SCVHP to Three Creeks Habitat Conservation Plan
The Water District is expected to apply for separate incidental take permits from USFWS and the
National Marine Fisheries Service to cover activities addressed in the "Three Creeks Habitat
Conservation Plan" (the "3CHCP "). If issued, the Water District's 3CHCP incidental take permits will
Item IX.A. 25
be independent and severable from the SCVHP Federal Permit, such that, if the 3CHCP permits are
subsequently suspended or revoked, such suspension or revocation will not, by itself, affect the
SCVHP Federal Permit or the Permittees' obligations under the SCVHP Federal Permit, and vice
versa. The Water District's 3CHCP incidental take permits are expected to cover some activities that
are also SCVHP Covered Activities, such that the Water District will have incidental take
authorization for certain SCVHP Covered Activities under both the SCVHP Federal Permit and the
3CHCP incidental take permits.
The Water District will be solely responsible for administering and implementing the 3CHCP. The
Water District will coordinate with the Implementing Entity and the Wildlife Agencies regarding
implementation of 3CHCP as appropriate to eliminate redundancies. If, and to the extent that, the
3CHCP requires mitigation for impacts also addressed by the SCVHP, the Parties agree that the
Water District will not be required to implement the duplicative measure twice (e.g., will not both
have to pay a fee under the SCVHP that is intended to fund land acquisition and also directly to fund
a land acquisition under the 3CHCP to mitigate the impacts of the same project or activity). The
Implementing Entity will be responsible for monitoring and reporting on measures implemented
by the Water District that fulfill SCVHP requirements just as it is responsible for monitoring and
reporting on other SCVHP measures, regardless of whether the measures also fulfill requirements
under the 3CHCP.
Notwithstanding anything in this Agreement or the SCVHP to the contrary, the Parties further agree
that conservation actions anticipated to be undertaken by the Water District in implementing the
3CHCP will be eligible to offset SCVHP Fees and, if implemented and approved by the Implementing
Entity, may be credited against any SCVHP Fees the Water District may otherwise be obligated to
pay, in the manner and to the extent provided in SCVHP Chapter 9.4.1.
8. CONDITIONS ON COVERED ACTIVITIES
The impacts to Covered Species and natural communities resulting from Covered Activities will be
minimized and mitigated by the implementation of the SCVHP Conservation Strategy, by avoidance
and minimization measures for Covered Activities, and related application and .survey
requirements, described in SCVHP Chapter 6, and by the payment of certain fees that will be used to
fund implementation of the SCVHP described in SCVHP Chapter 9. The measures described in
SCVHP Chapter 6 and the fee requirements described in SCVHP Chapter 9 are referred to herein
and in the SCVHP as "Conditions on Covered Activities" or "Conditions." Most of these Conditions
apply to specific types of Covered Activities; no individual Covered Activity is anticipated to need to
comply with all Conditions. Instead, each Covered Activity will comply with certain applicable
Conditions. The Permittees will ensure that all applicable Conditions are incorporated in Covered
Activities, as provided in this Section.
8.1. Avoidance and Minimization of Impacts
As further described in SCVHP Chapter 6, the SCVHP includes Conditions to avoid or minimize the
Take of Covered Species resulting from Covered Activities. These Conditions are designed to form a
regional program that will be implemented systematically to: prevent Take of individuals of certain
26
Item IX.A.
Covered Species; avoid impacts to Covered Species to the maximum extent practicable; minimize
adverse effects on Covered Species and natural communities to the maximum extent practicable;
and avoid and minimize direct and indirect impacts on wetlands and streams. Each Permittee will
incorporate all applicable Conditions within all Covered Activities that it implements. In addition,
the County and the Cities will require all applicable Conditions as conditions of approval for all
Private Project Participant Covered Activities, and the Implementing Entity will ensure that the
Conditions are incorporated in all Participating Special Entity Covered Activities.
8.1.1. Avoidance and Minimization of Impacts to Species Protected under Laws
other than the ESA or CESA
All Covered Species that are bird species (western burrowing owl, least Bell's vireo, and tricolored
blackbird) are protected under the Migratory Bird Treaty Act. As provided in Agreement Section
7.7, the Federal Permit will be.a Special Purpose Permit under the Migratory Bird Treaty Act for the
least Bell's vireo, which is a Federal Listed Species. However, unless and until the western
burrowing owl or the tricolored blackbird become Federal Listed Species and the Federal Permit
becomes a Special Purpose Permit for those species, the Migratory Bird Treaty Act will prohibit
killing or possessing them or their young, nests, feathers, or eggs.
The Permits authorize Take of Covered Species only. As further described in Condition 1, Covered
Activities must comply with applicable state and federal laws that protect species that are not
Covered Species just as they would without the Permits.
8.1.2. Exemptions from Conditions to Avoid and Minimize Impacts
Certain Covered Activities will not disturb the ground or will have little measurable impact on
Covered Species or natural communities. These Covered Activities will receive the same Authorized
Take coverage as other Covered Activities. However, as further described in SCVHP Chapter 6.2 and
SCVHP Table 6 -1, some or all conditions on Covered Activities described SCVHP Chapter 6,
including the requirement in SCVHP Chapter 6.8 to submit a Habitat Plan Application, will not apply
to these Covered Activities.
8.2. SCVHP Fees
As provided in this Section and further described in SCVHP Chapter 9, the Implementing Entity will
use revenues generated from certain fees placed on Covered Activities to fund the implementation
of the conservation strategy described in SCVHP Chapter S. Such actions include, but are not limited
to creation of the SCVHP Reserve System, management of Reserve System lands, monitoring of and
reporting on SCVHP implementation, adaptive management, responses to Changed Circumstances,
and related planning and administrative costs. These actions, together with the avoidance and
minimization measures provided for in Agreement Section 8.1, will fulfill all requirements under
the ESA and the NCCPA to minimize and mitigate for the impacts of Covered Activities on Covered
Species and natural communities.
The SCVHP includes several types of fees, which are referred to collectively in this Agreement as the
" SCVHP Fees." The SCVHP Fees, exemptions from the fees, fee credits, and the method of
calculating the fees is further described in SCVHP Chapter 9.4.1.
Item IX.A. 27
8.2.1. Exemptions from SCVHP Fees
Certain Covered Activities will not disturb the ground or will have little measurable impact on
Covered Species or natural communities. As further described in SCVHP Chapter 6.2 and SCVHP
Table 6 -1, the requirement to pay SCVHP fees does not apply to these Covered Activities, except to
the extent that the requirement applies to them expressly in SCVHP Chapter 9.4.1. These Covered
Activities will receive the same Authorized Take coverage as other Covered Activities, and Take
from these Covered Activities will be tracked and reported in the same way as Authorized Take
from other Covered Activities. Covered Activities that are exempt from SCVHP Fees are further
described in SCVHP Chapter 9.4.1.
8.2.2. Payment and Collection of Fees
The Permittees will ensure that all applicable SCVHP Fees are paid, and all applicable fee credits are
applied, for all Covered Activities, as further described in SCVHP Chapter 9.4.1. The County and the
Cities will make payment of all applicable SCVHP Fees a condition of final approval for Private
Project Participant Covered Activities; the Implementing Entity will require payment of all
applicable SCVHP Fees for Participating Special Entity Covered Activities; and the Permittees will
pay all applicable SCVHP Fees for Covered Activities that they implement. The Implementing Entity
may require Participating Special Entities to pay an amount in addition to applicable SCVHP Fees to
reimburse the Implementing Entity for costs associated with extending take coverage to
Participating Species Entities and to help fund SCVHP conservation actions intended to contribute
to the recovery of Covered Species.
The Cities and the County will collect fee payments from Private Project Participants and provide
the fee revenues to the Implementing Entity at least annually. The Implementing Entity will collect
all fee revenues, including fee payments from the Permittees for Covered Activities that they
implement. The Implementing Entity will comply with all applicable provisions of the Mitigation
Fee Act (Gov. Code §66000, et seq.) as to the deposit, accounting, expenditure and reporting of such
fee revenues.
8.3. SCVHP Fee Credits
As further described in SCVHP Chapter 8.6.7 and SCVHP Chapter 9.4.1, the Implementing Entity
may approve SCVHP Fee credits for the conveyance of lands that are added to the Reserve System
and for the implementation of SCVHP conservation actions. The SCVHP Fee credits may be used for
some of the SCVHP Fees that apply to one or more Covered Activities, except that SCVHP Fee credits
may not be used for the Wetland Fee. SCVHP Fee credits do not have any value except as credits for
SCVHP Fees incurred during the Permit Term. SCVHP Fee credits remaining after the Permit Term
will have no value, and no payment or "refund" will be made. Selling or trading of SCVHP Fee
credits will not be allowed.
The Implementing Entity will prepare a written determination stating whether any proposed
SCVHP Fee credit meets the requirements of the SCVHP and this Agreement, and whether, or to
what extent, the credit is approved by the Implementing Entity. The written determination will
include the amount of any approved credit. The amount of an approved SCVHP Fee credit may be
28
Item IX.A.
deducted from the SCVHP Fees that apply to any Covered Activity implemented by the Permittee,
Private Project Proponent, or Participating Special Entity that received the approved credit.
The Implementing Entity may disapprove a proposed SCVHP Fee credit if it determines that
approval of the credit would constrain the Implementing Entity's ability to meet Reserve System
requirements or otherwise impede the successful implementation of the SCVHP, such as, for
example, and without limitation, by creating a shortfall in fee revenues for Reserve System
management or monitoring or by impairing the Implementing Entity's ability to meet the
requirements of Agreement Section 9.4 or SCVHP Chapter 8.6.1.
8.4. Timing of Fee Payment
All applicable SCVHP Fees, subject to any SCVHP Fee credits, will be collected before the Covered
Activity for which the fees are required is implemented. The County and the Cities will require
Private Project Participants to pay all applicable fees before or concurrent with the issuance of a
grading permit for each Private Project Proponents' Covered Activity. If a grading permit is not
required for the Covered Activity, payment of the fees will be required before the first building or
construction permit is issued. The Implementing Entity will require Participating Special Entities to
pay all applicable fees before initiating ground- breaking activities for their Covered Activities, and
the Permittees will pay all applicable fees before implementing any Covered Activity.
8.5. Adjustment of Fees
As further described in SCVHP Chapter 9.4.1, there are three ways in which the Implementing
Entity will evaluate the amount of SCVHP Fees and adjust them as necessary to account for
increases or decreases in the cost of implementing the SCVHP: by annual adjustments, by biennial
reviews, and by periodic assessments. The Implementing Entity will adjust the rate of the SCVHP
Fees annually, by the date established by the Implementing Entity for this adjustment, according to
the indices and procedures described in Table 9 -12 of the SCVHP, beginning the calendar year
following the Effective Date. The date of the automatic update will be determined by the
Implementing Entity's Governing Board within the first six months of Plan implementation. At least
once every two (2) years, the Implementing Entity will review fee revenues and compare them to
the actual and projected portion of SCVHP implementation costs that must be funded by fee
revenues to determine whether the annual adjustments to SCVHP fees are sufficient to keep pace
with actual costs and to provide the Implementing Entity an additional opportunity to adjust fees, if
needed.
In addition, the Implementing Entity will conduct a periodic assessment concurrent with an annual
adjustment of the SCVHP Fees to evaluate whether fee revenues are adequate to cover the
appropriate portion of implementation costs, as described in SCVHP Chapter 9. The Implementing
Entity will conduct the periodic assessment at least once every five (5) years, where year one (1) is
the first full calendar year after the Effective Date.
SCVHP fees may be increased or decreased based on the results of the annual adjustments, biennial
review, or periodic assessment. However, SCVHP fees must always be based on the mitigation
requirement methodology described in SCVHP Chapter 9.4.1. The Permittees will not be required to
Item IX.A. 29
increase SCVHP Fees to address shortfalls in other sources of funding or to decrease the Fees in
response to windfalls in other sources of funding.
9. CREATION OF RESERVE SYSTEM
The creation and management of the Santa Clara Valley Habitat Plan Reserve System (the "Reserve
System ") is an essential element of the SCVHP Conservation Strategy. The Implementing Entity will
create the Reserve System on behalf of the Permittees as provided in this Section and further
described in SCVHP Chapter 5 and SCVHP Chapter B. With the exception of existing Santa Clara
Valley Open Space Authority lands, described in Agreement Section 9.2, the Reserve System will be
created by permanently protecting land containing certain terrestrial and aquatic land cover types
and managing and monitoring them in perpetuity. Lands consistent with the conservation strategy
that are owned by a Permittee may be added to the Reserve System upon approval by the
Implementing Entity and Wildlife Agencies and protection through a conservation easement, as
provided in this Section and as further described in SCVHP Chapter 5.2.3 and SCVHP Chapter 8.6.
Reserve System lands will be actively managed for the benefit of Covered Species, and habitat on
Reserve System lands will be enhanced or restored where appropriate, to improve habitat for
Covered Species and natural communities, as provided in Agreement Section 10 and further
described in SCVHP Chapters 5.2.5, 5.3 and 5.4.
The Implementing Entity will create and complete the Reserve System according to prescribed
deadlines as provided in Agreement Section 6.4.1 and further described in SCVHP Chapter 5.3.1,
Table 5 -14, and Chapter 8.12. In addition, lands must be added to the Reserve System at a pace that
is roughly proportional to the rate at which Covered Activities are implemented and Authorized
Take occurs, as provided in Agreement Section 9.4 and further described in SCVHP Chapter 8.6.1,
even if this would require the Reserve System to be created and completed more quickly than
needed to meet the deadlines.
9.1. Criteria for Reserve System Lands
As further described in SCVHP Chapter 8.6, the Implementing Entity must obtain USFWS' and
CDFG's advance approval for all lands added to the Reserve System, including lands owned by a
Permittee, fee title transfers and conservation easement acquisitions; provided, however, that if
either Wildlife Agency does not respond to a written request for approval of a proposed addition of
lands from the Implementing Entity within thirty (30) days after receiving such a request, the
Wildlife Agency will be deemed to have approved the acquisition for purposes of this Agreement,
the SCVHP and the Permits.
Only lands that meet all of the following criteria may be counted toward the Reserve System
requirements of the SCVHP.
• The lands must contribute to the SCVHP Conservation Strategy.
• The land has no hazardous materials or property encumbrances that conflict with the
SCVHP Conservation Strategy.
30
Item IX.A.
• The lands must be consistent with SCVHP reserve design and assembly principles, as
described in SCVHP Chapter S.
• The lands must meet all relevant criteria in SCVHP Chapter 5.3.1 for landscape linkages,
land cover types, plant populations, modeled species habitat, and species occupancy.
• The biological functions and values on the lands that contribute to the SCVHP Conservation
Strategy must be permanently protected, with the exception of existing Santa Clara Valley
Open Space Authority Land, described further in Agreement Section 9.2.
• A Reserve Unit Management Plan must be prepared for the lands, as provided in Agreement
Section 10 and further described in SCVHP Chapter 5.2.5 and SCVHP Chapter 5.3.
• The lands were not used to fulfill mitigation requirements for a project or activity that is not
a Covered Activity.
9.2. Permanent Protection of Reserve System Lands
As provided in Agreement Section 9, Reserve System lands will be permanently protected. For
purposes of the Permits, Reserve System lands will be regarded as permanently protected if the
biological functions and values on the lands that contribute to the SCVHP Conservation Strategy are
protected by a permanent, recorded conservation easement that meets the requirements of this
Section and SCVHP Chapter 8.6.3. However, up to one - thousand (1,000) acres of land owned by the
Santa Clara Valley Open Space Authority as of the Effective Date, on which the recordation of a
conservation easement is precluded by law, may be added to the Reserve System without
recordation of a conservation easement, provided the lands otherwise meet the requirements for
Reserve System lands, as further described in SCVHP Chapter 5.2.3 and SCVHP Chapter 9.4.2.
9.2.1. Conservation Easements
As further described in SCVHP Chapter 8.6.3, the Implementing Entity will negotiate the specific
terms and conditions of conservation easements used to permanently protect Reserve System lands
with each landowner on a case -by -case basis, based on site conditions, land uses, and Covered
Species and habitat needs. However, all Reserve System conservation easements will comply with
California Civil Code section 815 et seq., Government Code section 65965 et seq., and other
applicable laws; will achieve certain objectives and prohibit certain uses, as further described in
SCVHP Chapter 8.6.3; and will identify the Wildlife Agencies as third party beneficiaries for
purposes of enforcing the terms of the easement. Reserve System conservation easements will be
held by the Implementing Entity in most cases. If the Implementing Entity owns fee title to the land
covered by the conservation easement, the conservation easement will be held by another
conservation organization approved by the Wildlife Agencies. In addition, the Implementing Entity
may, on a case -by -case basis, allow other conservation organizations approved by the Wildlife
Agencies to hold Reserve System conservation easements, provided such conservation
organizations enter into a binding agreement with the Implementing Entity in which they assume
the obligation to enforce the terms of the conservation easement in accordance with the SCVHP,
this Agreement, and the Permits and comply with all applicable legal requirements including, but
not limited to, Government Code section 65965 etseq.
Item IX.A. 31
For purposes of lands added to the Reserve System, the Implementing Entity will use a
conservation easement template agreed to by the Parties (Appendix H of the SCVHP). Reasonable
variations from the template may be needed to address site - specific constraints. CDFG and USFWS,
along with the Implementing Entity, must review and approve any modifications to the template
easement prior to its execution.
93. Requirement for a Reserve Unit Management Plan
As provided in Agreement Section 9 and Agreement Section 10, all Reserve System lands will be
managed in perpetuity according to the applicable Reserve Unit Management Plan. Lands may be
counted toward the Reserve System requirements of the SCVHP before a Reserve Unit Management
Plan is prepared only if the lands are permanently protected and the fee owner of the lands is
subject to an enforceable legal obligation to manage the lands, or to allow the lands to be managed,
according to a Reserve Unit Management Plan.
9.4. Stay -Ahead or Rough Proportionality Requirement
The Implementing Entity will ensure that lands are added to the Reserve System, and that required
habitat restoration and creation occurs, at or faster than the pace at which Covered Activities
impact habitat, which will fulfill the NCCPA's requirement to ensure that implementation of
mitigation and conservation measures on a plan basis is roughly proportional in time and extent to
the impact on habitat or covered species. (Cal. Fish & G. Code section 2820(b)(3)(D)(9).) This
requirement is also referred to in the SCVHP as the "stay- ahead" requirement and will assist the
USFWS in making a finding that the SCVHP will meet the requirement of Section 10(a)(2)(B)(ii) of
the ESA. In order to make findings that the proposed impacts are mitigated to the maximum extent
practicable, USFWS will consider temporal losses resulting from the time of impact relative to the
time of mitigation. As further described in SCVHP Chapter 8.6.1, SCVHP Table 5 -12 and SCVHP
Table 5 -14, the amount of each land cover type restored, created, and added to the Reserve System
as a proportion of the total requirement for each land cover type will be equal to or greater than the
impact on that land cover type as a proportion of the total impact expected by all Covered Activities.
For example, at or before the time twenty-five percent (25 %) of the expected impacts on mixed
serpentine chaparral have occurred, the Implementing Entity will add twenty-five percent (25x/0) of
the required acreage of mixed serpentine chaparral to the Reserve System. The Implementing
Entity will in good faith attempt to maintain strict proportionality between creation of the Reserve
System and the impacts of Covered Activities, but the Implementing Entity will fulfill the
requirements of this Section and SCVHP Chapter 8.6.1 so long as it ensures that the pace at which
the Reserve System is created, and at which required habitat restoration and creation occurs on
Reserve System lands, does not fall behind the pace at which Covered Activities impact habitat by
more than ten percent (10 %) for each land cover type. As further described in SCVHP Chapter
8.6.1, SCVHP Chapter 5.4 and SCVHP Table 5 -16, the Stay -Ahead provision also includes a
requirement for acquisition of covered plant occurrences to stay ahead of impacts, with the
exception of the Coyote ceanothus as described in SCVHP Chapter 5.4.11. SCVHP Chapter 8.6.1 also
describes a Stay -Ahead provision specific to the Burrowing Owl Conservation Strategy. The
Implementing Entity will measure and report on rough proportionality as described in Chapter
8.6.1.
32
Item IX.A.
9.4.1. Reserve System Lands Acquired Using State or Federal Funding
As provided in Agreement Section 13 and further described in SCVHP Chapter 9, the SCVHP funding
strategy for completion of the Reserve System identifies and assumes contributions of state and
federal funding. Lands added to the Reserve System using funds from state or federal agencies will
be counted toward the Reserve System requirements of the SCVHP and the stay- ahead /rough
proportionality requirement, but will not be credited toward SCVHP mitigation requirements.
9.4.2. Failure to Stay Ahead or to Maintain Rough Proportionality
If the Wildlife Agencies determine that the requirements of this Section or SCVHP Chapter 8.6.1
have not been fulfilled, they will so notify the Implementing Entity in writing, and the Implementing
Entity and Wildlife Agencies will meet to develop a mutually agreeable plan of action that will fulfill
such requirements, as further described in SCVHP Chapter 8.6.1. If the Wildlife Agencies determine
specifically that the requirements of this Section and SCVHP Chapter 8.6.1 regarding the addition of
land to the Reserve System have not been fulfilled, they may, by written notice to the Implementing
Entity, require it to initiate the requirement to dedicate land in -lieu of SCVHP Fees set forth in
Agreement Section 9.4.1. The Parties acknowledge that failure to fulfill the requirements of SCVHP
Chapter 8.6.1 would constitute a violation of the Federal and State Permits and that the Wildlife
Agencies will take appropriate responsive actions to address any such violation in accordance with
the ESA and the NCCPA, which could include suspension or revocation of the Permits, in whole or in
part.
9.4.11. NCCPA Procedure for Addressing Failure to Maintain Rough
Proportionality
In addition to the response described in Agreement Section 9.4.2, SCVHP Chapter 8.6.1 and SCVHP
Chapter 9.4.4, the NCCPA requires a specific procedure for responding to a failure to maintain
rough proportionality. This Section fulfills that requirement. If CDFG determines that the
requirements of this Section or SCVHP Chapter 8.6.1 have not been fulfilled, with or without the
concurrence of USFWS, the Implementing Entity will either regain rough proportionality within
forty-five (45) days or will enter into an agreement with CDFG within forty -five (45) days, which
will set a course of action to expeditiously regain rough proportionality. The agreement may
include any of a variety of commitments or adjustments to the SCVHP designed to regain rough
proportionality, including but not limited to, a plan to acquire, restore, or enhance lands of the
appropriate land cover or plant population type expeditiously. However, if USFWS concurs with
CDFG's determination, and the Implementing Entity and the Wildlife Agencies meet to develop a
plan of action, as described above, the agreement will be based on that plan of action. The
Implementing Entity will provide written notice of the agreement to the other Permittees. Each
Permittee will implement all actions set forth in the agreement that apply to the Permittee.
If the Implementing Entity does not regain rough proportionality within forty-five (45) days and
does not enter into an agreement with CDFG within forty-five (45) days setting a course of action to
regain rough proportionality, CDFG will suspend or revoke the State Permit, in whole or in part,
pursuant to California Fish and Game Code section 2820, subdivision (c). The Parties agree that
partial suspension or revocation may include removal of one or more Covered Species for purposes
Item IX.A. 33
of the State Permit, or reducing the geographic scope of Authorized Take under the State Permit.
Before suspending or revoking the State Permit in whole due to a failure to maintain rough
proportionality, CDFG will meet with the Permittees to determine whether mutually agreeable
modifications to the SCVHP would obviate a suspension or revocation in whole. The Parties agree
that if CDFG suspends or revokes the State Permit, the Permittees may, based on the SCVHP, apply
for one or more CESA incidental take permits under section 2081, subdivision (b), of the California
Fish and Game Code to replace the State Permit.
If the NCCPA procedure for addressing a failure to maintain rough proportionality in California Fish
and Game Code section 2820 is amended, the new procedure shall supersede the procedure in this
Section 9.4.2.1 to the extent they are inconsistent.
The Implementing Entity will follow the same procedure with USFWS as described in this section
9.4.2.1 for responding to a failure to maintain rough proportionality for purposes of the ESA.
9.4.3. Conveyance of Land in Lieu of SCVHP Fees to Maintain Rough
Proportionality
If the Implementing Entity determines at any time that the pace at which lands are added to the
Reserve System is likely to fail to meet the requirements of this Agreement Section 9.4, the
Implementing Entity may, after consultation with the other Permittees, require that some or all
Permittees provide, and require Third Party Participants to provide, land in lieu of fees, as provided
in Agreement Section 8.3 and further described in SCVHP Chapters 8.6.1 and 8.6.7. The
Implementing Entity will provide written notice thereof to the other Permittees. The Implementing
Entity's notice will recommend a scope of the land in lieu of fee requirement, for example, applying
the land in lieu of fee requirement to Covered Activities that will impact ten (10) acres or more. All
Permittees will thereafter apply the recommended land in lieu of fee requirement to Covered
Activities that they implement; the Implementing Entity will apply the requirement to Participating
Special Entities; and the County and Cities will consider applying the requirement to Private Project
Participants. However, SCVHP Fee credits derived from the implementation of conservation actions
specifically approved for SCVHP Fee credit in SCVHP Chapter 9.4.1 may be used regardless of a land
in lieu of fee requirement from the Implementing Entity. The County and Cities acknowledge that
failure to apply the land in lieu of fee requirement to Private Project Participants when needed to
meet the requirements of this Agreement Section 9.4 may result in suspension or revocation of the
Permits.
The Implementing Entity may terminate the land in lieu of fee requirement only after it determines
that the pace at which lands added to the Reserve System without the requirement will likely meet
the requirements of this Agreement Section 9.4. Upon making such a determination, the
Implementing Entity will so notify the other Permittees in writing, and the Permittees may
thereafter terminate the requirement with regard to their own Covered Activities and to Third
Party Participants. However, if the Implementing Entity initiated the requirement because it was
required to do so by the Wildlife Agencies as provided in Agreement Section 9.4.2, it may terminate
the land in lieu of fee requirement only with the approval of the Wildlife Agencies, which approval
will not be withheld unreasonably.
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Item IX.A.
9.5. Additional Criteria for Lands Conveyed in Lieu of SCVHP Fees
As provided in Agreement Section 8.3 and Agreement Section 9.4.1, under certain circumstances
lands may be conveyed to the Reserve System in lieu of payment of some SCVHP Fees that apply to
one or more Covered Activities. As further described in SCVHP Chapter 8.6.7, such lands may be
added to the Reserve System and counted toward the Reserve System requirements of the SCVHP, if
the lands:
• meet the criteria for Reserve System Lands in Agreement Section 9.1;
• are approved for inclusion in the Reserve System by the Implementing Entity and the
Wildlife Agencies in accordance with Agreement Section 9.1; and
• are within an area designated as high or moderate priority for acquisition, as further
described in SCVHP Chapter 5 and SCVHP Figure 5 -8, or have unique or exceptional habitat
values that meet the criteria for such high or moderate priority areas.
9.6. Lands Conveyed by Entities other than Permittees
Lands acquired or owned by any Permittee that meet the requirements of Agreement Section 9.1
may be added to the Reserve System and counted toward the Reserve System requirements of the
SCVHP, as further described in SCVHP Chapter 8.6.2.
9.6.1. Lands in Private Mitigation Banks
Lands in private mitigation banks within the Permit Area can be counted toward the Reserve
System requirements of the SCVHP as described in SCVHP Chapter 8.6.2. With the Implementing
Entity's prior approval, a Permittee or Third Party Participant may purchase credits at a private
mitigation bank to fulfill the requirements of the SCVHP only if the bank occurs within the Permit
Area and meets all relevant requirements pertaining to the Reserve System, habitat enhancement,
adaptive management, and monitoring described in SCVHP Chapter 5 and SCVHP Chapter 7.
9.7. Gifts of Land
The Implementing Entity may accept lands in fee title, or conservation easements on lands, as a gift
or charitable donation. Such lands may be added to the Reserve System only if they meet the
criteria in Agreement Section 9.1 and the nature of the real property interest is consistent with the
requirements of Agreement Section 9.2. The Implementing Entity may sell or exchange lands it
receives as a gift or donation that do not meet the criteria in Agreement Section 9.1 or the
requirements of Agreement Section 9.2.
10. MANAGEMENT OF RESERVE SYSTEM LANDS
The Implementing Entity, on behalf of the Permittees, will ensure that Reserve System lands are
managed as provided in this Section and further described in SCVHP Chapters 5.2.5, 5.3, and 5.4.
The Implementing Entity may delegate management responsibility to other Parties or qualified
third parties, including but not limited to public agencies, private conservation organizations,
university scientists, and contractors. However, the Implementing Entity or any successor will be
responsible for ensuring the management of Reserve System lands in perpetuity.
Item IX.A. 35
10.1. Reserve Unit Management Plans
The Implementing Entity will ensure that all Reserve System lands are managed according to
appropriate Reserve Unit Management Plans. As further described in SCVHP Chapter 5.2.5, Reserve
Unit Management Plans will be prepared for each reserve unit within the Reserve System to
identify, on the basis of site - specific conditions, the management and maintenance actions
necessary to ensure that SCHVP objectives regarding ecosystem characteristics and functions are
maintained and enhanced, and to achieve other objectives, as further described in SCVHP Chapter
5.2.5.
10.1.1. Role of the Wildlife Agencies in Preparation of Reserve Unit Management
Plans
All Reserve Unit Management Plans must be approved by the Wildlife Agencies. The Wildlife
Agencies will review each draft Reserve Unit Management Plan and provide comments to the
Implementing Entity within sixty (60) days after receiving the draft plan. The Implementing Entity
will revise the draft plan based on the Wildlife Agencies' comments, if any, and will provide a
revised draft to the Wildlife Agencies, which will have an additional sixty (60) day review period. If
an initial draft Reserve Unit Management Plan or any subsequent revised draft Reserve Unit
Management Plan adequately addresses a Wildlife Agency's comments, the Wildlife Agency will so
notify the Implementing Entity within sixty (60) days, and the Reserve Unit Management Plan will
thereafter be deemed to be approved by that Wildlife Agency for purposes of the Permits. In
addition, if a Wildlife Agency does not provide comments within sixty (60) days after receiving the
revised draft Reserve Unit Management Plan, the Wildlife Agency will thereafter be deemed to have
approved the revised draft plan for purposes of this Agreement, the SCVHP and the Permits. The
Implementing Entity will incorporate comments submitted by the Wildlife Agency in the revised
draft Reserve Unit Management Plan to the extent that the Implementing Entity determines the
comments can be incorporated. In the event that the Implementing Entity determines that some or
all of the Wildlife Agency comments cannot be incorporated, it will notify the Wildlife Agencies of
its determination and the basis for such. The Implementing Agency will then work with the Wildlife
Agencies to determine if other measures can be developed that adequately address the Wildlife
Agencies' concerns.
The same Wildlife Agency review procedure will apply to all major revisions to Reserve Unit
Management Plans.
10.1.2. Preparation and Revision of Reserve Unit Management Plans
As further described in SCVHP Chapter 5.2.5 and SCVHP Chapter 5.3, the Implementing Entity will
prepare a Reserve Unit Management Plan for each reserve unit within the Reserve System as soon
as reasonably possible. The Implementing Entity will prepare a draft Reserve Unit Management
Plan for Wildlife Agency review not later than five (5) years after the first parcel has been acquired
within the reserve unit. Until the Reserve Unit Management Plan has been approved by the Wildlife
Agencies, the Implementing Entity will manage the reserve unit based on the best available
information and management methods derived from other Reserve Unit Management Plans or from
other land management in the Permit Area.
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Item IX.A.
Following the initial approval of a Reserve Unit Management Plan, the Implementing Entity will
periodically update each Reserve Unit Management Plan as new lands are added to the reserve unit
to include new management and monitoring methods, if any, needed for the new lands. The
Implementing Entity will also review and, if necessary, revise all Reserve Unit Management Plans
every five (5) years based on information provided through the SCVHP monitoring and adaptive
management program described in SCVHP Chapter 7 and relevant outside research.
10.2. Reserve Unit Management Plan Components
The Implementing Entity will ensure that each Reserve Unit Management Plan includes the
components identified in SCVHP Chapter 5.2.5 and SCVHP Chapter 5.3.2.
10.3. Recreational Uses
Recreational and educational uses will be allowed on Reserve System lands where the
Implementing Entity determines that such uses would be compatible with the preservation and
enhancement of Covered Species and natural communities. The Implementing Entity will ensure
that a recreational uses strategy is included in all Reserve Unit Management Plans for reserve units
on which educational or recreational uses will be allowed, as further described in SCVHP Chapter
6.4.6. The Implementing Entity will not allow recreational uses within any reserve unit of the
Reserve System until the Wildlife Agencies have approved a Reserve Unit Management Plan that
includes a recreational uses strategy for the unit in accordance with Agreement Section 10.1.1;
provided, however, that existing recreational uses on lands incorporated into the Reserve System
from existing open space (e.g., County Parks) will continue until the Reserve Unit Management Plan
and associated recreational use strategy is completed.
10.4. Monitoring Program
All Reserve System lands will be monitored as further described in SCVHP Chapter 7. As further
described in SCVHP Chapter 5.2.5 and SCVHP Chapter 7, the Implementing Entity will prepare and
implement a comprehensive monitoring program for the Reserve System within five (5) years after
the Effective Date.
10.5. Technical Advisory Committee
As further described in SCVHP Chapter 8.2.4, the Implementing Entity will create a technical
advisory committee composed of but not limited to representatives of each land management
agency that manages lands that are part of the Reserve System, including each Permittee that
manages such lands, and the Wildlife Agencies, with the USFWS participating in an ex officio
capacity. The purpose of the technical advisory committee will be to share information regarding
land management generally and to coordinate the management of Reserve System lands.
11. MONITORING, ADAPTIVE MANAGEMENT AND CHANGED CIRCUMSTANCES
The Implementing Entity, on behalf of the Permittees, will implement the SCVHP monitoring and
adaptive management program as provided in this Section and further described in SCVHP Chapter
7. The Implementing Entity may delegate monitoring responsibilities to other Parties or qualified
Item IX.A. 37
third parties, including but not limited to public agencies, private conservation organizations,
university scientists, and contractors.
The overarching purpose of the SCVHP monitoring and adaptive management program is to inform
and refine SCVHP implementation so that it may achieve the goals and objectives of the SCVHP
Conservation Strategy. The Implementing Entity will administer the adaptive management process
by using information gathered from the monitoring program to inform and refine the design and
management of the Reserve System. The Implementing Entity will also incorporate the
recommendations of science advisors and other experts in the design and management of the
Reserve System, as appropriate, and will consider the cost of implementing the monitoring and
adaptive management program in its budget analysis and funding decisions.
The scope of the SCVHP monitoring and adaptive management program is limited by the regulatory
assurances provided by the Wildlife Agencies, as provided in Agreement Section 12.
11.1. Monitoring
The Implementing Entity will conduct three main types of monitoring, as further described in
SCVHP Chapter 7.2.1: compliance monitoring, effectiveness monitoring, and targeted studies. The
Implementing Entity will provide the results of all SCVHP monitoring annually in its Annual Report.
Compliance monitoring, also known as implementation monitoring, will track the status of SCVHP
implementation and verify that the Implementing Entity is meeting the terms and conditions of the
Permits. Effectiveness monitoring assesses the biological success of the Plan — specifically, it
evaluates the implementation and success of the conservation strategy described in SCVHP Chapter
S. Targeted studies will identify the best methodologies for monitoring, provide information about
the efficacy of Reserve System management techniques, and resolve critical uncertainties in order
to improve Reserve System management.
11.2. Adaptive Management
The Implementing Entity will implement the SCVHP adaptive management program, as further
described in SCVHP Chapters 7.1.2, 8.3.8, and 9.3.5. The purpose of adaptive management will be to
adapt the design and management of the Reserve System in order to maximize the likelihood of the
successful implementation of the SCVHP Conservation Strategy. The Implementing Entity will have
ultimate responsibility for implementing the adaptive management program and will ultimately
decide what adaptations will be made in the management of Reserve System lands. However, the
Implementing Entity will consider the advice of the Wildlife Agencies, science advisors, the
Independent Conservation Assessment Team, other land management agencies, and the public, as
provided in this Section and as further described in SCVHP Chapter 7.2.3. In addition, any major
changes in the adaptive management program will require the approval of the Wildlife Agencies
prior to implementation, including, but not limited to, any proposed actions that would be
inconsistent with the SCVHP or detrimental to a Covered Species, introducing new and untested
management techniques, discontinuing and replacing ineffective management techniques that are
recommended in the Conservation Strategy, or applying management techniques on a much larger
or smaller scale than envisioned in the SCVHP,
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Item IX.A.
11.2.1. Role of the Wildlife Agencies
The Wildlife Agencies will provide biological expertise and policy -level recommendations to the
Implementing Entity regarding potential changes to the design and management of the Reserve
System based on the results of monitoring and the advice of science advisors and the Independent
Conservation Assessment Team, as further described in SCVHP Chapter 7.2.3. The Implementing
Entity will confer with the Wildlife Agencies before initiating substantial adaptations to the design
or management of the Reserve System. The Implementing Entity and Wildlife Agencies will attempt
in good faith to reach agreement regarding any such adaptations or alternative adaptations that the
Wildlife Agencies may propose. If they cannot reach agreement, any of them may initiate the
dispute resolution procedure provided in Agreement Section 6.6.
11.2.2. Role of Science Advisors
The Implementing Entity will consult with science advisors regarding SCVHP implementation when
needed to obtain expert scientific advice and recommendation regarding key scientific aspects of
SCVHP implementation, such as the design, management and monitoring of the Reserve System, as
further described in SCVHP Chapter 7.2.3. Science advisors will be selected by the Implementing
Entity, with input from the Wildlife Agencies. For purposes of this Agreement, "science advisors"
means scientists or resource managers with expertise in one or more of the following areas:
• The biology of Covered Species;
• Landscape ecology;
• Natural communities in the Reserve System;
• Ecological processes;
• Resource management;
• Biological monitoring; or
• Statistical analysis and experimental design.
11.2.3. Role of the Independent Conservation Assessment Team
The Implementing Entity will select and convene an "Independent Conservation Assessment
Team' at least once every five (5) years to evaluate SCVHP implementation and recommend ways
to improve progress toward achieving the SCVHP Conservation Strategy's goals and objectives, as
further described in SCVHP Chapter 7.2.3. The Independent Conservation Assessment Team will be
composed of independent scientists and resources managers who are recognized experts in their
fields. The Implementing Entity will consult with the Wildlife Agencies regarding the selection of
members of the Independent Conservation Assessment Team. The Implementing Entity, in
consultation with the Wildlife Agencies, will determine the scope and focus of the Independent
Conservation Assessment Team's review based on the most relevant issues and circumstances at
the time of each review. However, each review will in any case include a program -level evaluation
of recommendations for the following:
• The design of the Reserve System and the success of habitat restoration efforts;
The appropriateness of monitoring and methods for purposes of achieving the SCVHP
Conservation Strategy goals and objectives;
Item IX.A. 39
• The appropriateness of the interpretation of monitoring results as reflected in the five (5)
most recent Annual Reports; and
• Adaptations that may be needed in the management of Reserve System lands.
11.2.4. Advice from Other Land Management Agencies
The Implementing Entity will from time to time consult with land management agencies in the
Permit Area to share information regarding land management generally and to coordinate
management of lands adjacent to Reserve System lands with the management of Reserve System
lands. Organizations consulted for advice could include, but will not be limited to, private non - profit
conservation organizations that are active in or near the Permit Area.
11.2.5. Advice from the Public
The Implementing Entity will provide members of the public with opportunities to learn about the
status of SCVHP implementation and to provide advice regarding the adaptive management
program, as further described in SCVHP Chapter 7 and SCVHP Chapter 8.2.7.
11.2.6. No Increase in Take
Section 11.2 of this Agreement does not authorize any adaptations to the design or management of
the Reserve System that would result in an increase in the amount and nature of Authorized Take,
or increase the impacts of Authorized Take, of Covered Species beyond that analyzed in the SCVHP
and any Amendments thereto. Any such modification must be reviewed as a Permit Amendment
under Agreement Section 15.
11.3. Changed Circumstances
The Implementing Entity will implement responses to Changed Circumstances as provided in this
Section and further described in SCVHP Chapter 10.2.1. Changed Circumstances identified and
planned for in the SCVHP are contained in SCVHP Chapter 10.2.1. In the event a Changed
Circumstance identified in SCVHP Chapter 10.2.1 occurs, the Implementing Entity will implement
the remedial measures or actions prescribed in SCVHP Chapter 10.2.1 for that Changed
Circumstance. Neither the Implementing Entity nor any other Permittee or Third Party Participant
will be required to take any additional action to respond to a Changed Circumstance (Le., any action
not otherwise required by the Permits), except as described in SCVHP Chapter 102.1.
Changed Circumstances are provided for in the SCVHP and therefore are not Unforeseen
Circumstances. The Permittees' responses to Changed Circumstances, as well as the funding to
assure that the responses are implemented, are described in the SCVHP. Therefore, Changed
Circumstances do not require an Amendment of the SCVHP or the Permits. The Parties agree that
SCVHP Chapter 10.2.1 identifies all Changed Circumstances and describes appropriate and
adequate responses for them. Other changes not identified as Changed Circumstances will be
treated as Unforeseen Circumstances, as provided in Agreement Section 12.
11.3.1. Initiating Responses to Changed Circumstances
The Implementing Entity will notify the Wildlife Agencies within seven (7) days after learning that
any of the Changed Circumstances listed in SCVHP Chapter 10.2.1 has occurred. The Implementing
40
Item IX.A.
Entity will respond to Changed Circumstances as described in SCVHP Chapter 10.2.1.
If a Wildlife Agency determines that a Changed Circumstance has occurred and that the
Implementing Entity has not responded as described in SCVHP Chapter 10.2.1, the Wildlife Agency
will so notify the Implementing Entity, specifically identifying the Changed Circumstance. After
receiving the Wildlife Agency's notice, the Implementing Entity will initiate responsive actions in
the manner described in SCVHP Chapter 10.2.1.
After it has initiated remedial measures to a Changed Circumstance as described in SCVHP Chapter
10.2.1, the Implementing Entity will promptly inform the Wildlife Agencies of its actions. The
Implementing Entity will continue implementation of any such remedial measures to completion
and will describe in its Annual Report for that year the Changed Circumstance and the remedial
measures implemented. Subsequent Annual Reports will track the response of the Reserve System
and the Covered Species to evaluate whether remedial measures implemented as a result of
Changed Circumstances have been effective.
12. REGULATORY ASSURANCES
The Wildlife Agencies acknowledge that the Permittees have agreed to take on the substantial
responsibility of developing and implementing the SCVHP in large part to obtain regulatory
assurances, as provided in the ESA and the NCCPA and further described in this Section and SCVHP
Chapter 10.2.
12.1. ESA Regulatory Assurances
Provided that the Permittees have complied with their obligations under this Agreement, the
SCVHP and the Federal Permit, USFWS can require a Permittee or Third Party Participant to
provide additional mitigation beyond that provided for in the SCVHP only with its consent and only
under Unforeseen Circumstances, in accordance with the "No Surprises' regulations at 50 Code of
Federal Regulations section 17.22(b)(5) and section 17.32(b)(5). .
12.2. NCCPA Regulatory Assurances
As long as the Permittees are properly implementing this Agreement, the SCVHP, and the State
Permit, CDFG will not seek to impose on the Permittees or Third Party Participants, for purposes of
compliance with the NCCPA or CESA, any avoidance, minimization, mitigation, or conservation
measures or requirements regarding the impacts of Covered Activities on Covered Species within
the Permit Area beyond those required by this Agreement, the SCVHP, and the State Permit. If there
are Unforeseen Circumstances, additional land, water, or financial compensation or additional
restrictions on the use of land, water, or other natural resources will not be required without the
consent of Permittees for the term of this Agreement, unless CDFG determines that the SCVHP is not
being implemented consistent with the substantive terms of this Agreement, the SCVHP, and the
State Permit.
The provisions of this Agreement and the SCVHP that address Changed Circumstances are not
Unforeseen Circumstances and therefore are not subject to these assurances. However, CDFG
acknowledges that the Changed Circumstances provisions of the SCVHP are not intended to require
Item IX.A. 41
modifications to the SCVHP that would impose significant additional burdens on Permittees or
Third Party Participants.
12.3. Interim Obligations upon a Finding of Unforeseen Circumstances
If a Wildlife Agency finds that an Unforeseen Circumstance has occurred with regard to a Covered
Species and that additional mitigation measures are required for the Covered Species as a result,
during the period necessary to determine the nature and location of the additional or modified
mitigation, the Permittees will avoid causing an appreciable reduction in the likelihood of the
survival and recovery of the affected species. The Permittees will not be responsible for
implementing any additional mitigation measures or modifications, unless the Permittees consent
to do so.
12.4. Section 7 Consultations regarding Covered Activities
Nothing in this Agreement is intended to alter the obligation of a federal agency to consult with
USFWS pursuant to Section 7 of the ESA (16 U.S.C. §1536(a)); the Parties understand that the
assurances described in Agreement Section 12.1 cannot be provided to federal agencies. Unless
otherwise required by law or regulation, in any consultation under Section 7 of the ESA involving
the Permittees or an existing or prospective Third Party Participant and a proposed public or
private project in the Permit Area that may adversely affect one or more Covered Species that are
Federal Listed Species, USFWS will ensure that the biological opinion for the proposed project is
consistent with the biological opinion issued for the SCVHP and the Federal Permit, provided that
the proposed project and associated effects are consistent with the Covered Activities and effects
analyzed in the SCVHP and the Federal Permit Unless otherwise required by law or regulation,
USFWS will not impose measures on a Permittee or an existing or prospective Third Party
Participant in excess of those that have been or will be required by the Permits.
12.5. Assurances for Third Parry Participants
Pursuant to the "No Surprises' regulations described in Agreement Section 12.1, in the event of a
Finding of Unforeseen Circumstances, USFWS cannot require the commitment of additional land,
water or financial compensation without the consent of the affected Permittee or Third Party
Participant, provided that the Permittees have complied with their obligations under the Federal
Permit. Likewise, as provided in Agreement Section 12.2, as long as the Permittees are properly
implementing this Agreement, the SCVHP, and the State Permit, CDFG will not seek to impose on
any Permittee or Third Party Participant, for purposes of compliance with the NCCPA or CESA, any
avoidance, minimization, mitigation, or conservation measures or requirements regarding the
impacts of Covered Activities on Covered Species within the Permit Area beyond those required by
this Agreement, the SCVHP, and the State Permit. If there are Unforeseen Circumstances, additional
land, water, or financial compensation or additional restrictions on the use of land, water, or other
natural resources will not be required of a Third Party Participant without its consent for the term
of this Agreement, unless CDFG determines that the SCVHP is not being implemented consistent
with the substantive terms of this Agreement, the SCVHP, and the State Permit.
42
Item IX.A.
Nothing in this Agreement will preclude the Permittees from imposing on Third Party Participants
any mitigation, compensation, or other requirements in excess of those required by the Permits for
impacts other than impacts of Covered Activities on Covered Species. Such other impacts may
include, but are not limited to, impacts on parks, recreational facilities, and agriculture.
13. FUNDING
The Implementing Entity, County, Cities, Water District and VTA will ensure that all required
mitigation, conservation, monitoring, and reporting measures are adequately funded throughout
the term of this Agreement, and that certain monitoring, reporting and adaptive management
measures are adequately funded in perpetuity. The Permittees do not intend to use, nor are they
required to use, funds from their respective general funds to implement the SCVHP; rather they
intend to obtain sufficient funds through a comprehensive strategy further described in SCVHP
Chapter 9 that includes: fees and dedications from Covered Activities; federal and state grants;
grants from nonprofits and foundations; and ongoing conservation efforts by local and state
agencies that have a demonstrated record of acquiring and managing lands for conservation
purposes in the Permit Area. The Permittees may use or establish other local funding measures,
including, but not limited to, utility surcharges, special taxes or assessments, or bonds, to the extent
allowed by law. The Permittees are responsible to seek all feasible increases in revenues that are
necessary to keep pace with rising costs, as described in SCVHP Chapter 9. Each Permittee will
promptly notify the Wildlife Agencies of any material change in the Permittee's financial ability to
fulfill its obligations under this Agreement. In addition, the Implementing Entity will include in its
Annual Report reasonably available financial information to demonstrate the Permittees' collective
ability to fulfill their obligations under this Agreement in light of a material change in a Permittee's
finances, if any.
As further provided in Agreement Section 18.8, this Agreement does not require the obligation,
appropriation, or expenditure of any money without express authorization by, as applicable, the
County Board of Supervisors, appropriate City Councils and /or governing boards of the
Implementing Entity, Water District, and VTA.
13.1. Funding for Management and Monitoring in Perpetuity
As further described in SCVHP Chapter 9.4.4, the Permittees will manage the Reserve System in
perpetuity in accordance with the requirements of the SCVHP, including applicable SCVHP adaptive
management requirements and monitoring requirements. The Permittees anticipate that Reserve
System management obligations will be fully funded by interest on the endowment created by the
Endowment Fee, a component of the SCVHP Fees.
The Permittees' obligations with regard to SCVHP requirements other than Reserve System
management requirements will terminate upon the termination of the Permits.
13.2. Effect of Inadequate Funding
In the event there is inadequate funding to implement the SCVHP, the Wildlife Agencies will assess
the impact of the funding deficiency on the scope and validity of the Permits. Unless the Permittees
Item IX.A. 43
exercise the authority to withdraw, as provided in Agreement Section 17, or the Wildlife Agencies
revoke the Permits, in whole or in part, as provided in Agreement Section 16, the Parties agree that
they will meet and confer to develop a strategy to address the funding shortfall and to undertake all
practicable efforts to maintain both the level of conservation provided under the SCVHP and the
level of Authorized Take coverage afforded by the Permits until the funding deficiency can be
remedied. The strategy to address a funding shortfall may include, but is not necessarily limited to,
the actions described in SCVHP Chapter 9.4.4. However, the Permittees do not intend to, nor are
they required to use, funds from their respective general funds to implement the SCVHP in the
event of funding shortfalls, either in the short term or the long term.
If overall SCVHP fee revenues for the term of the Permits fall short of SCVHP projections because
fewer Covered Activities are proposed or implemented, the resulting shortfall in SCVHP funding
could prevent or constrain the Permittees' ability to implement the SCVHP fully. If it appears that
the allowed Authorized Take will not be used during the term of the Permits, substantially reducing
SCVHP fee revenues, the Parties anticipate that the Permittees will apply for an extension of the
Permits in accordance with Agreement Section 17.4 to allow the full use of Authorized Take and full
implementation of the SVHP, or will apply for a Permit modification or amendment in accordance
with Agreement Section 15.5.
13.3. State and Federal Funding
As further described in SCVHP Chapter 9.4.3, through the SCVHP and this Agreement, USFWS and
CDFG will use their best efforts to contribute 14,900 acres of land, which will be administered,
managed, and monitored by the Implementing Entity, to the Reserve System. The funds provided to
acquire the 14,900 acres of land could come from a variety of sources, including funds
administered directly by USFWS and CDFG, as well as funds administered by the Wildlife
Conservation Board, the California Coastal Conservancy, California Department of Parks and
Recreation, and other state and federal sources. If, after the exercise of all available authority and
use of all available resources, state and federal funds are unable to contribute 14,900 acres to the
Reserve System, the Implementing Entity, the Permittees, CDFG and USFWS will reevaluate the
SCVHP and work together to develop or identify an alternative funding mechanism.
The Implementing Entity will track state and federal funds progress toward the goal of contributing
14,900 acres, measured by the number of acres added to the SCVHP Reserve System, and will
include a summary of the progress in each report it prepares under Agreement Section 14.1. State
and federal funds will be counted only toward that portion of the Reserve System that contributes
to the recovery of Covered Species. If, for any acquisition of lands that are added to the Reserve
System, state or federal funding is used to pay a portion of the overall acquisition costs, the number
of acres counted toward this goal. will be the portion of the total acres acquired that reflects the
proportion of total acquisition costs paid with state or federal funds.
If a state or federal agency manages, or funds the management of, lands acquired with state or
federal funds, the number of acres from state and federal funds contributing to the Reserve System
will be reduced from 14,900 acres in recognition of the contribution of management funding, as
44
Item IX.A.
further described in SCVHP Chapter 9.4.3. The amount of the reduction will be accounted for by
mutual agreement among USFWS, CDFG and the Implementing Entity.
14. REPORTING AND INFORMATION MANAGEMENT
The Implementing Entity, on behalf of the Permittees, will report on and manage information
regarding SCVHP implementation as provided in this Section and further described in SCVHP
Chapters 7 and 8.11. The Implementing Entity may delegate reporting and information
management tasks in this Section and the SCVHP to other Parties or qualified third parties,
including universities, scientists and other contractors. However, the Implementing Entity will
remain solely responsible for ensuring implementation of such tasks, on behalf of the Permittees.
14.1, Annual Report
The Implementing Entity will prepare an annual report on implementation of the SCVHP (the
"Annual Report"), as further described in SCVHP Chapter 8.11. The Annual Report will summarize
actions taken to implement the SCVHP during the previous calendar year and will be submitted to
the Wildlife Agencies by March 15 of the following calendar year, beginning the calendar year after
the first full calendar year of implementation. The Annual Report will: provide information
necessary to demonstrate that the SCVHP is being implemented in accordance with the Permits;
include or describe the applications and approvals for take authorization, including take
authorizations for Covered Activities that are exempt from SCVHP Fees or Conditions; identify any
significant problems encountered during implementation, including any Changed Circumstances or
Unforeseen Circumstances, and any remedial measures taken; identify issues that require
consultation with the Wildlife Agencies; and identify proposed Minor Modifications or Amendments
that would support successful implementation of the SCVHP. The Implementing Entity will provide
a copy of the Annual Report to all Parties. The Implementing Entity will also create and maintain an
Internet website for the public distribution of information regarding SCVHP implementation and
will post each Annual Report on the website.
14.2. Monitoring Results
As provided in Agreement Section 11.1, the Implementing Entity will provide the results of
compliance monitoring, effectiveness monitoring and targeted studies annually in the Annual
Report. The Parties will use the results of the Implementing Entity s monitoring to ensure that the
SCVHP is being properly implemented and to measure the Implementing Entity's progress toward
the successful implementation of the SCVHP Conservation Strategy (SCVHP Chapter 5), as further
described in SCVHP Chapters 7 and 8.10.2.
14.3. Information Management
Within one (1) year after the adoption of the last implementing ordinance as provided in
Agreement Section 7.4.1.3, the Implementing Entity will develop and maintain a comprehensive
data repository for compliance tracking information and other relevant information regarding
SCVHP implementation, as further described in SCVHP Chapter 8.10.1. The Implementing Entity
will make the data repository accessible to the Parties, including the Wildlife Agencies. The Wildlife
Item IX.A. 45
Agencies will keep confidential sensitive species information to the extent permitted by the
Freedom of Information Act, the California Public Records Act or other applicable laws. Subject to
the California Public Records Act, the Implementing Entity may determine in its sole discretion
whether to grant access to any information in the data repository to third parties, including Third
Party Participants.
14.4. Other Information
Within thirty (30) days of receipt of a written request from the Wildlife Agencies, the Implementing
Entity will provide any requested, non - confidential, non - proprietary information in its possession
or control that is relevant for the purpose of assessing whether the Permittees are in compliance
with the terms and conditions of the Permits. The Implementing Entity shall list and briefly
describe each document withheld for containing confidential or proprietary information.
15. MODIFICATIONS AND AMENDMENTS
The Parties may from time to time modify or amend the SCVHP, this Agreement, or the Permits, in
accordance with this Section and the requirements of the ESA, the NCCPA, NEPA and CEQA.
15.1. Administrative Changes
The Parties understand that ordinary administration and implementation of the SCVHP will require
minor variations in the way certain conservation actions are implemented. Such administrative
changes, as described in SCVHP Chapter 10.3.1, will not require modification or amendment of this
Agreement, the SCVHP, or the Permits, and will not require the prior approval of the Wildlife
Agencies. Administrative changes to the SCVHP that may be approved pursuant to this Section
include, but are not limited to, the examples described in SCVHP Chapter 10.3.1.
15.2. Minor Modifications of the SCVHP
The Implementing Entity may propose minor modifications, defined in SCVHP Chapter 10.3.2, to the
SCVHP by providing written notice to all of the other Parties. Such notice will include a statement
of the reason for the proposed modification and an analysis of its environmental effects, if any,
including any effects on Covered Species. The Wildlife Agencies will each approve or disapprove
proposed modifications within sixty (60) days of receipt of such notice or will explain in writing to
the Implementing Entity why such approval or disapproval cannot be provided within sixty (60)
days and will specify when such approval or disapproval will be provided. Proposed modifications
will become effective upon the Wildlife Agencies' written approval. The Wildlife Agencies will not
approve minor modifications to the SCVHP if they determine that such modifications would result
in adverse effects on Covered Species or natural communities under the SCVHP that are
significantly different from those analyzed in the SCVHP or would result in additional Take of
Covered Species not analyzed in the SCVHP. If any Wildlife Agency disapproves a proposed
modification, it may be proposed as an amendment of that Wildlife Agency's Permit as provided in
Section 15.4.
Minor modifications of the SCVHP that may be approved pursuant to this Section include, but are
notlimited to, the examples of minor modifications described in SCVHP Chapter 10.3.2
46
Item IX.A.
15.3. Amendment of this Agreement
This Agreement may be amended only with the written agreement of all Parties; provided,
however, that any amendment or portion thereof pertaining to Private Project Participants,
implementing ordinances under Agreement Section 7.4.1.3, or any other provision of this
Agreement pertaining to the land use or other regulatory decisions of the Cities or County will not
require the consent of the Water District or VTA.
15.4. Amendment of the SCVHP and the Permits
The Permittees may substantially revise the SCVHP by obtaining the applicable Wildlife Agency's
approval of an amendment, as described in SCVHP Chapter 10.3.3, to one or more of the Permits as
provided in this Section and in accordance with all applicable laws and regulations, including but
not limited to the ESA, NEPA, NCCPA and CEQA. The Implementing Entity will provide written
notice to all of the other Parties of any proposed Permit amendment. Such notice will include a
copy of any required application for the proposed amendment, a statement of the reason for the
amendment and an analysis of its environmental effects, if any, including any effects on Covered
Species. The Wildlife Agency will review and approve or disapprove the proposed Permit
amendment in an expeditious manner, commensurate with the level of environmental review
appropriate to the magnitude of the proposed amendment. Unless and until CDFG adopts
regulations that set forth specific requirements for the amendment of NCCPA take authorizations,
for purposes of proposed amendments to the State Permit CDFG will accept an application for a
Permit amendment that meets the requirements of this Section and ESA requirements for an
application for an amendment of an incidental take permit; provided, however, that CDFG's
approval or disapproval of the proposed Permit amendment will be based on the requirements of
the NCCPA and CEQA and not on the requirements of the ESA.
Revisions of the SCVHP that would require an amendment of one or more of the Permits include,
but are not limited to, the examples described in SCVHP Chapter 10.3.3.
15.5. Modification or amendment of SCVHP Deadlines
The Parties acknowledge that it is possible that, even over the full fifty (50) year term of the
Permits, Covered Activities and Authorized Take might not occur to the extent projected in the
SCVHP and that SCVHP Fee revenues might therefore fall short of projections. A shortfall of SCVHP
Fee revenues under these circumstances could make it difficult or impossible for the Permittees to
complete the Reserve System within the term of the Permits. If it appears likely that such a shortfall
will make it difficult or impossible for the Implementing Entity and other Permittees to meet all
SCVHP land acquisition requirements, and all Reserve System habitat restoration and creation
requirements, within the timeframes required under Agreement Section 6.4.1, SCVHP Chapter 5.3.1
and SCVHP Chapter 8.12, the Parties anticipate that the Permittees may propose an amendment to
the SCVHP, this Agreement, and the Permits to reduce the Authorized Take and Reserve System
land acquisition and habitat restoration and creation requirements or to extend the term of the
permits in order to allow full implementation of the SCVHP in accordance with all applicable laws
and regulations, including but not limited to the ESA, NEPA, NCCPA and CEQA, as provided in
47
Item IX.A.
Agreement Section 15.4, SCVHP Chapter 9.4.4 and SCVHP Chapter 10.3.3. This Agreement does not
obligate the Wildlife Agencies to approve any such amendment proposal.
15.6. General Land Use and Regulatory Authority of the County and Cities
The Parties acknowledge that the adoption and amendment of general plans, specific plans,
community plans, zoning ordinances and other land use and regulatory ordinances, and the
granting of land use entitlements or other regulatory permits by the County or Cities are matters
within the sole discretion of the County or Cities and will not require amendments to the Permits,
or the approval of other Parties to this Agreement However, no such action by the County or Cities
will alter or diminish their obligations under the Permits.
16. REMEDIES AND ENFORCEMENT
Each Party will have all of the remedies available in equity (including specific performance and
injunctive relief) and at law to enforce the terms of the Permits, and to seek redress for any breach
or violation thereof; except that none of the Parties will be liable in damages to any other Parry or
to any other person or entity for any breach of this Agreement, any performance or failure to
perform a mandatory or discretionary obligation imposed by this Agreement, or any other cause of
action arising from this Agreement. The Parties acknowledge that the Covered Species are unique
and that their loss as species would be irreparable and that therefore injunctive and temporary
relief may be appropriate in certain instances involving a breach of this Agreement. Nothing in this
Agreement is intended to limit the authority of the Federal and State governments to seek civil or
criminal penalties or otherwise fulfill its enforcement responsibilities under the ESA, CESA or other
applicable law.
16.1. Suspension of Federal Permit
USFWS may suspend the Federal Permit, in whole or in part, for cause in accordance with 50 Code
of Federal Regulations section 13.27 and other applicable laws and regulations in force at the time
of such suspension. Except where USFWS determines that emergency action is necessary to avoid
irreparable harm to a Covered Species, it will not suspend the Federal Permit without first (1)
attempting to resolve any disagreements regarding the implementation or interpretation of the
SCVHP or this Agreement in accordance with Agreement Section 6.6, (2) requesting the Permittees
to take appropriate remedial actions, and (3) providing the Permittees with written notice of the
facts or conduct which may warrant the suspension and an adequate and reasonable opportunity
for the Permittees to demonstrate why suspension is not warranted.
16.2. Reinstatement of Suspended Federal Permit
In the event USFWS suspends the Federal Permit, in whole or in part, as soon as possible after such
suspension, USFWS will meet and confer with the Permittees concerning how the suspension can
be ended. Subsequent to the conclusion of any such conference, USFWS will identify reasonable,
specific actions, if any, necessary to effectively redress the suspension. In making this
determination, USFWS will consider the requirements of the ESA and its regulations, the
conservation needs of the Covered Species, the terms of the Federal Permit and any comments or
48
Item IX.A.
recommendations received during the meet and confer process. As soon as possible, but not later
than thirty (30) days after the conference, USFWS will send the Permittees written notice of any
available, reasonable actions necessary to effectively redress the deficiencies giving rise to the
suspension. Upon performance or completion, as appropriate, of such actions, USFWS will
immediately reinstate the Federal Permit. It is the intent of the Parties that in the event of any total
or partial suspension of the Federal Permit, all Parties will act expeditiously and cooperatively to
reinstate the Federal Permit.
16.3. Suspension of the State Permit
In the event of any material violation of the State Permit or material breach of this Agreement by
the Permittees, CDFG may suspend the State Permit in whole or in part; provided, however, that it
will not suspend the State Permit without first (1) attempting to, resolve any disagreements
regarding the implementation or interpretation of the SCVHP or this Agreement in accordance with
Agreement Section 6.6, (2) requesting the Permittees to take appropriate remedial actions when
such remedial actions are reasonable and available, and (3) providing the Permittees with written
notice of the facts or conduct which may warrant the suspension and an adequate and reasonable
opportunity for the Permittees to demonstrate why suspension is not warranted or to take steps
necessary to cure the violation or breach.
16.3.1. Failure to Maintain Rough Proportionality
As provided in Agreement Section 9.4.2, in the event that CDFG has determined that the Permittees
have failed to meet the rough proportionality requirement as provided in Agreement Section 9.4,
and if the Permittees have failed to cure the default or entered into an agreement to do so within
forty-five (45) days of the written notice of such determination, CDFG will suspend the State Permit
in whole or in part in accordance with California Fish and Game Code section 2820.
16.4. Reinstatement of Suspended State Permit
In the event CDFG suspends the State Permit, as soon as possible but no later than ten (10) days
after such suspension, CDFG will confer with the Permittees concerning how the violation or breach
that led to the suspension can be remedied. At the conclusion of any such conference, CDFG will
identify reasonable, specific actions necessary to effectively redress the violation or breach. In
making this determination, CDFG will consider the requirements of NCCPA, the conservation needs
of the Covered Species, the terms of the State Permit and this Agreement and any comments or
recommendations received during the meet and confer process. As soon as possible, but not later
than thirty (30) days after the conference, CDFG will send the Permittees written notice of the
reasonable actions necessary to effectively redress the violation or breach. Upon performance of
such actions, CDFG will immediately reinstate the State Permit. It is the intent of the Parties that in
the event of any suspension of the State Permit, all Parties will act expeditiously and cooperatively
to reinstate the State Permit.
16.5. Revocation of Federal Permit
USFWS agrees that it will revoke or terminate the Federal Permit, in whole or in part, pursuant to
50 Code of Federal Regulations sections 13.28 -13.29 and 50 Code of Federal Regulations sections
Item IX.A. 49
17.22(b)(8) and 17.32(b)(8) only after completing the meet and confer process set forth in
Agreement Section 6.6, unless immediate revocation is necessary to avoid the likelihood of
jeopardy to a listed species. USFWS agrees that it will not revoke or terminate the Federal Permit, in
whole or in part, to avoid the likelihood of jeopardy to a listed species, without first notifying the
Permittees of those measures, if any, that the Permittees may undertake to prevent jeopardy to the
listed species and maintain the Federal Permit and giving Permittees a reasonable opportunity to
implement such measures.
16.6. Revocation of State Permit
CDFG may revoke or terminate the State Permit for a material violation of the State Permit or
material breach of this Agreement by the Permittees if the CDFG determines in writing that (1) such
violation or breach cannot be effectively redressed by other remedies or enforcement action, or (2)
revocation or termination is required to avoid jeopardizing the continued existence of a Covered
Species and to fulfill a legal obligation of the CDFG under the NCCPA.
CDFG agrees that it will not revoke or terminate the State Permit without first (1) attempting to
resolve any disagreements regarding the implementation or interpretation of the SCVHP or this
Agreement in accordance with Agreement Section 6.6, (2) requesting that the Permittees take
appropriate remedial action, and (3) providing the Permittees with notice in writing of the facts or
conduct which warrant the revocation or termination and a reasonable opportunity (not less than
forty-five (45) days) to demonstrate or achieve compliance with NCCPA, the State Permit and this
Agreement.
However, in the event that CDFG has determined that the Permittees have failed to meet the rough
proportionality standard provided in Agreement Section 9.4, and if the Permittees have failed to
cure the default or to enter into an agreement to do so within forty-five (45) days of the written
notice of such determination, CDFG will suspend or revoke the State Permit in whole or in part in
accordance with California Fish and Game Code section 2820.
16.7. Obligations in the Event of Suspension or Revocation
In the event of revocation or termination of a Permit, or of suspension of a Permit pursuant to
Agreement Section 16.8, consistent with the requirements of 50 Code of Federal Regulations
sections 17.32(b)(7) and 17.22(b)(7), the Permittees will remain obligated to fulfill any existing
and outstanding minimization and mitigation measures and conservation measures required under
this Agreement, the SCVHP and the Permit for any Take that occurs prior to such revocation,
termination, or suspension, until the applicable Wildlife Agency determines that all Take of Covered
Species that occurred under the Permit has been mitigated to the maximum extent practicable in
accordance with the SCVHP. Regardless of whether the Permit is terminated, suspended, or
revoked, the Permittees acknowledge that lands added to the Reserve System must be protected,
managed and monitored in perpetuity.
16.8. Emergency Suspension of Permits to Avoid Jeopardy
If new circumstances arise in which continued implementation of the Covered Activities would
appreciably reduce the likelihood of survival and recovery of a Federal or State Listed Species in the
50
Item IX.A.
wild, USFWS or CDFG may suspend its Permit on an emergency basis, in whole or in part, without
resorting to the procedures specified in this Section. The period of such emergency suspension will
be no longer than ninety (90) days. Before extending the suspension beyond ninety (90) days,
USFWS and CDFG will comply with the requirements of Agreement Section 16 pertaining to non -
emergency Permit suspensions or revocations. During such 90 -day period, USFWS will comply
with 50 Code of Federal Regulations section 13.27.
16.9. Force Majeure
In the event that the Permittees are wholly or partially prevented from performing obligations
under this Agreement because of unforeseeable causes beyond the reasonable control of and
without the fault or negligence of the Permittees ( "Force Majeure "), including, but not limited to,
acts of God, labor disputes, sudden actions of the elements not identified as Changed Circumstances,
or actions of non - participating federal or state agencies or local jurisdictions, the Permittees will be
excused from whatever performance is affected by such unforeseeable cause to the extent so
affected, and such failure to perform will not be considered a material violation or breach, provided
that nothing in this section will be deemed to authorize any Party to violate the ESA, CESA or
NCCPA, and provided further that:
• The suspension of performance is of no greater scope and no longer duration than is
required by the Force Majeure;
• Within fifteen (15) days after the occurrence of the Force Majeure, affected Permittees will
give the Wildlife Agencies written notice describing the particulars of the occurrence;
• Permittees will use their best efforts to remedy their inability to perform (however, this
paragraph will not require the settlement of any strike, walk -out, lock -out or other labor
dispute on terms which in the sole judgment of the Permittees are contrary to their
interest); and
• When Permittees are able to resume performance of their obligations, the affected
Permittees will give the Wildlife Agencies written notice to that effect.
16.10. Inspections by Wildlife Agencies
The Wildlife Agencies may conduct inspections and monitoring of the site of any Covered Activity,
and may inspect any data or records required by the Permits, in accordance with applicable law and
regulations. The Wildlife Agencies will also have reasonable access to conduct inspections of the
Reserve System and lands enrolled under the Neighboring Lands Agreement.
17. TERM OF AGREEMENT
17.1. Effective Date
This Agreement will be effective on the date after all of the following have occurred:
• Formation of the Implementing Entity;
• execution by all Parties;
Item IX.A. 51
• issuance of both of the Permits; and
• adoption of an SCVHP implementing ordinance by each of the Cities and the County.
17.2. Term of the Agreement
This Agreement will run for a term of fifty (50) years from the Effective Date, unless extended
pursuant to Agreement Section 17.4, or unless all of the Permits are permanently terminated
pursuant to Agreement Section 16, in which case this Agreement will automatically terminate. This
Agreement may also be terminated by mutual written agreement of the Parties.
17.3. Term of the Permits
The Permits will run for a term of fifty (50) years from the date of issuance on the face of the
Permits, unless terminated as provided in this Agreement.
17.4. Extension of the Permits
Upon agreement of the Parties and in compliance with all applicable laws and regulations in force at
the time, the Wildlife Agencies may, with respect to the Permits under their respective jurisdictions,
extend the Permits beyond their initial terms. If the Permittees desire to extend the Permits, they
will so notify the Wildlife Agencies at least six (6) months before the then - current term is scheduled
to expire. Extension of the Permits constitutes extension of this Agreement and the SCVHP for the
same amount of time, subject to any modifications agreed to by the Parties at the time of extension.
17.5. Withdrawal by a Permittee
Upon ninety (90) days written notice to the Wildlife Agencies, the implementing Entity and all
other Permittees, any Permittee except for the implementing Entity may unilaterally withdraw
from this Agreement As a condition of withdrawal, the Permittee will remain obligated to ensure
implementation of all existing and outstanding minimization and mitigation and conservation
measures required under the Permits for any Take that the Permittee itself caused and any Take by
Private Project Participants for which the Permittee extended Authorized Take coverage prior to
withdrawal. If a Permittee withdraws before causing or extending any Authorized Take coverage
under the Permits, the Permittee will have no obligation to ensure implementation of any
minimization or mitigation measures. Such withdrawal of a Permittee from this Agreement will be
deemed to constitute a surrender of the Permittee's Authorized Take coverage under the Permits.
Withdrawal by a Permittee will not diminish or otherwise affect the obligations of the remaining
Permittees under this Agreement, the SCVHP, or the Permits. The Permittees acknowledge that if
one or more Permittees withdraws from this Agreement and, as a result of the withdrawal, it is no
longer feasible or practicable to implement the SCVHP successfully, it may be necessary to modify
the SCVHP or to amend the Permits, or both, in response to the withdrawal. However, the
withdrawal of a Permittee will not, by itself, be sufficient cause for the Wildlife Agencies to revoke
or suspend the Permits or take any other enforcement action.
Within forty-five (45) days after receiving written notice of withdrawal from a Permittee, the
Wildlife Agencies, the Implementing Entity and all Permittees will meet to discuss and evaluate
whether the SCVHP can be successfully implemented without the participation of the withdrawing
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Item IX.A.
Permittee. Relevant factors in this evaluation include but are not limited to whether, without the
participation of the withdrawing Permittee, SCVHP implementation will continue to be adequately
funded, whether the Permittees can continue to comply with the stay -ahead requirement, whether
all required conservation actions can be implemented, and whether the overall SCVHP
Conservation Strategy can be implemented consistent with the SCVHP. Based on this meeting or
meetings, and based on any other relevant information provided by the Implementing Entity or the
remaining Permittees, the Parties will determine whether it is necessary to modify the SCVHP or
amend the Permits, or both, in response to the withdrawal.
Upon ninety (90) days written notice to USFWS and CDFG, the Permittees collectively may
withdraw from this Agreement. As a condition of such withdrawal, the Permittees will be obligated
to ensure implementation of all existing and outstanding minimization, mitigation, and
conservation measures required under the Permits for any Take that occurred prior to such
withdrawal, to the maximum extent practicable pursuant to 50 C.F.R. 17.22(b)(7) and 17.32(b)(7)
for the Federal Permit, and pursuant to Fish and Game Code sections 2820, 2821 and 2834 for the
State Permit, until:
(1) The applicable Wildlife Agencies determine that all Take of Covered Species that
occurred under the Permits has been mitigated in accordance with the SCVHP, which
determination the Wildlife Agencies will make as soon as reasonably possible. The
conservation measures required for Take that occurred prior to withdrawal are the same as
the conservation measures required to comply with the rough proportionality requirement,
in accordance with Agreement Section 9.4 and SCVHP Chapter 8.6.1, with regard to Take
that occurred prior to withdrawal; and
(2) The Wildlife Agencies, the Implementing Entity and all Permittees meet to identify and
evaluate activities that could voluntarily be undertaken or continued in support of the
SCVHP Conservation Strategy notwithstanding the collective withdrawal.
If the Permittees collectively notify USFWS in writing that they plan to withdraw from this
Agreement or to discontinue the Covered Activities, they will surrender: (1) the Federal Permit
issued by that agency pursuant to the requirements of 50 Code of Federal Regulations Part 13.26;
and (2) the State Permit pursuant to Fish and Game Code section 2835 including but not limited to
the assurances or authorization for any Take that has not occurred at the time of withdrawal.
Regardless of withdrawal and surrender of the Permits, the Permittees acknowledge that lands in
the Reserve System must be protected, managed and monitored in perpetuity.
18. MISCELLANEOUS PROVISIONS
18.1. Calendar Days
Throughout this Agreement and the SCVHP, the use of the term "day' or "days' means calendar
days, unless otherwise specified
Item IX.A. 53
18.2. Response Times
Except as otherwise set forth herein or as statutorily required by CEQA, NEPA, CESA, ESA, NCCPA or
any other laws or regulations, the Wildlife Agencies and the Permittees will use reasonable efforts
to respond to written requests from a Party within a forty-five (45) day time period. The Parties
acknowledge that the Cities and the County are subject to the Permit Streamlining Act and that
nothing in this Agreement will be construed to require them to violate that Act. In addition, the
Wildlife Agencies will provide timely review of proposals for Covered Activities to be implemented
directly by the Permittees, where such review is required by the Permits.
18.3. Notices
The Implementing Entity will maintain a list of individuals responsible for ensuring SCVHP
compliance for each of the Parties, along with addresses at which those individuals may be notified
( "Notice Lise). The Notice List as of the Effective Date is provided below. Each Party will report
any changes of names or addresses to the Implementing Entity and the other Parties in writing.
Any notice permitted or required by this Agreement will be in writing,.and delivered personally, by
overnight mail, or by United States mail, postage prepaid. Notices may be delivered by facsimile or
electronic mail, provided they are also delivered by one of the means listed above. Delivery will be
to the name and address of the individual responsible for each of the Parties, as stated on the most
current Notice List.
Notices will be transmitted so that they are received within deadlines specified in this Agreement,
where any such deadlines are specified. Notices delivered personally will be deemed received on
the date they are delivered. Notices delivered via overnight delivery will be deemed received on the
next business day after deposit with the overnight mail delivery service. Notices delivered via non -
certified mail will be deemed received seven (7) days after deposit in the United States mail.
Notices delivered by facsimile or other electronic means will be deemed received on the date they
are received.
The following Notice List contains the names and notification addresses for the individuals
currently responsible for overseeing and coordinating SCVHP compliance:
Conn
San lose:
County Executive
City Manager
County of Santa Clara
City of San Jose
70 W. Hedding Street, 11th Floor, East Wing
200 East Santa Clara Street
San Jose, CA 95110
San lose, CA 95112
Gilroy:
Morgan Hill:
City Administrator
City Manager
City of Gilroy
City of Morgan Hill
7351 Rosanna St.
17575 Peak Avenue
Gilroy, CA 95020
Morgan Hill, CA 95037
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Item IX.A.
Water District:
VTA:
Chief Executive Officer
General Manager
Santa Clara Valley Water District
Santa Clara Valley Transportation Authority
5750 Almaden Expressway
3331 N. First Street
San lose, CA 95118
San lose, CA 95134
Implementing Entitv:
18.4. Entire Agreement
This Agreement, together with the SCVHP and the Permits, constitutes the entire agreement among
the Parties. This Agreement supersedes any and all other agreements, either oral or in writing,
among the Parties with respect to the subject matter hereof and contains all of the covenants and
agreements among them with respect to said matters, and each Party acknowledges that no
representation, inducement, promise of agreement, oral or otherwise, has been made by any other
Party or anyone acting on behalf of any other Party that is not embodied herein,
18.5. Limitations on Remedies
Notwithstanding any language to the contrary in this Agreement, this Agreement is not intended to
create, and shall not be construed to create, any rights or remedies against the Wildlife Agencies for
money damages or any other relief, including specific performance, that would result in a violation
of the ESA, the NCCPA or any other federal or state law or regulation. No Party to this Agreement
shall be liable in damages to any other Party or any other person for any performance or failure to
perform any obligation identified in this Agreement
18.6. Defense
The USFWS and the Permittees acknowledge that the Permittee have a significant and independent
interest in maintaining the validity and effectiveness of the SCVHP, this Agreement, and the Permit,
and supporting documentation, including documentation under the National Environmental Policy
Act and ESA, and that the Permittees" interests may not be adequately protected or represented in
the event of a judicial challenge to the Permit unless some or all of the Permittees are able to
participate in such litigation. Subject to Agreement Section 18.9 (Availability of Funds), the USFWS
will, upon the request of the Permittees, and subject to the responsibilities of the U.S. Department of
justice in the conduct of litigation, use reasonably available resources to provide appropriate support
to the Permittees in defending, consistent with the terms of the Federal Permit, lawsuits against the
Permittees arising out of the USFWS's approval of the Federal Permit.
Upon request, CDFG will, to the extent authorized by California law, cooperate with the Permittees
in defending, consistent with the terms of the SCVHP, lawsuits arising out of the Permittees'
adoption of this Agreement and the SCVHP.
18.7. Attorneys' Fees
If any action at law or equity, including any action for declaratory relief, is brought to enforce or
interpret the provisions of this Agreement, each Party to the litigation will bear its own attorneys'
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Item IX.A.
fees and costs, provided that attorneys' fees and costs recoverable against the United States will be
governed by applicable federal law.
18.8. Elected Officials Not to Benefit
No member of, or delegate to, the California State Legislature, the United States Congress, the
County Board of Supervisors, the city councils of the respective Cities, or the governing boards of
the other Permittees will be entitled to any share or part of this Agreement or to any benefit that
may arise from it.
18.9. Availability of Funds
Implementation of this Agreement and the SCVHP by USFWS is subject to the requirements of the
Anti- Deficiency Act and the availability of appropriated funds. Nothing in this Agreement will be
construed by the Parties to require the obligation, appropriation, or expenditure of any money from
the United States Treasury. The Parties acknowledge and agree that USFWS will not be required
under this Agreement to expend any federal agency's appropriated funds unless and until an
authorized official of that agency affirmatively acts to commit to such expenditures as evidenced in
writing.
Implementation of this Agreement and the SCVHP by CDFG is subject to the availability of
appropriated funds. Nothing in this Agreement will be construed by the Parties to require the
obligation, appropriation, or expenditure of any money from the Treasury of the State of California.
The Parties acknowledge and agree that CDFG will not be required under this Agreement to expend
any state appropriated funds unless and until an authorized official of that agency affirmatively acts
to commit such expenditure as evidenced in writing.
Implementation of this Agreement and the SCVHP by the Permittees is subject to the availability of
their respective appropriated funds, including but not limited to the special purpose revenues
dedicated to implement the SCVHP. Nothing in this Agreement will be construed to require the
obligation, appropriation, or expenditure of any money without express authorization by the
County Board of Supervisors, appropriate City Councils and /or governing boards of the
Implementing Entity, Water District, and VTA. Notwithstanding these requirements and
limitations, the Permittees are required to fund their respective obligations under the Permits as
provided in Agreement Section 13. The Parties acknowledge that if the Permittees fail to provide
adequate funding for their respective obligations under the Permits, the Permits may be suspended
or revoked as provided in Agreement Section 16.
18.10. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the United States
and the State of California, as applicable.
18.11. Duplicate Originals
This Agreement may be executed in any number of duplicate originals. A complete original of this
Agreement will be maintained in the official records of each of the Parties hereto.
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Item IX.A.
18.12. Relationship to the ESA, CESA, NCCPA and Other Authorities
The terms of this Agreement are consistent with and will be governed by and construed in
accordance with the ESA, CESA, NCCPA and other applicable state and federal laws. In particular,
nothing in this Agreement is intended to limit the authority of USFWS and CDFG to seek penalties or
otherwise fulfill its responsibilities under the ESA, CESA and NCCPA. Moreover, nothing in this
Agreement is intended to limit or diminish the legal obligations and responsibilities of USFWS as an
agency of the federal government or CDFG as an agency of the State of California.
18.13. No Third Party Beneficiaries
Without limiting the applicability of rights granted to the public pursuant to the ESA, CESA, NCCPA
or other applicable law, this Agreement will not create any right or interest in the public, or any
member thereof, as a third party beneficiary thereof, nor will it authorize anyone not a Party to this
Agreement to maintain a suit for personal injuries or property damages under the provisions of this
Agreement. The duties, obligations, and responsibilities of the Parties to this Agreement with
respect to third party beneficiaries will remain as imposed under existing state and federal law.
18.14. References to Regulations
Any reference in this Agreement, the SCVHP, or the Permits to any regulation or rule of the Wildlife
Agencies will be deemed to be a reference to such regulation or rule in existence at the time an
action is taken.
18.15. Applicable Laws
All activities undertaken pursuant to the Permits must be in compliance with all applicable local,
state and federal laws and regulations.
18.16. Severability
In the event one or more of the provisions contained in this Agreement is held to be invalid, illegal
or unenforceable by any court of competent jurisdiction, such portion will be deemed severed from
this Agreement and the remaining parts of this Agreement will remain in full force and effect as
though such invalid, illegal, or unenforceable portion had never been a part of this Agreement. The
Permits are severable such that revocation of one of the Federal or State Permits does not
automatically cause revocation of the other. For example, if CDFG revokes the State Permit, it does
not automatically cause revocation of the Federal Permit.
18.17. Due Authorization
Each Party represents and warrants that (1) the execution and delivery of this Agreement has been
duly authorized and approved by all requisite action, (2) no other authorization or approval,
whether of governmental bodies or otherwise, will be necessary in order to enable it to enter into
and comply with the terms of this Agreement, and (3) the person executing this Agreement on
behalf of each Party has the authority to bind that Party.
Item IX.A. 57
18.18. Assignment
Except as otherwise provided herein, the Parties will not assign their rights or obligations under
this Agreement, the Permits, or the SCVHP to any other individual or entity.
18.19. Headings
Headings are used in this Agreement for convenience only and do not affect or define the
Agreement's terms and conditions.
18.20. Legal Authority of USFWS
USFWS enters into this Agreement pursuant to the ESA, the Fish and Wildlife Coordination Act, and
the Fish and Wildlife Act of 1956. Section 10(a) of the ESA expressly authorizes USFWS to issue
permits to allow the incidental Take of species listed as threatened or endangered under the ESA.
18.21. Legal Authority of CDFG
CDFG enters into this Agreement pursuant to the NCCPA.
18.22. No Limitation on the Police Power of the Cities or the County
Nothing in this Agreement, the SCVHP or Permits limits the exercise of or in any way surrenders the
police power of the Cities or the County.
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Implementing
Agreement to be in effect as of the Effective Date.
Dated: 201_ UNITED STATES FISH & WILDLIFE SERVICE
C�
Dated: 201_ CALIFORNIA DEPARTMENT OF FISH & GAME
Dated: . 201_ SANTA CLARA VALLEY HABITAT
AGENCY
37
58
Item IX.A.
Dated: 201_ COUNTY OF SANTA CLARA
By:
Dated: . 201_ CITY OF SAN JOSE
By:
Dated: 201_ 3 CITY OF GILROY
As S . Ham, bxl' 3 7'k"%dlMoa
By-
201 Dated: 201_ Z CITY F MOtA N HILL
By:
Dated: 201_ SANTA CLARA VALLEY WATER DISTRICT
By:
Dated: . 201_ SANTA CLARA VALLEY TRANSPORTATION
AUTHORITY
By:
59
Item IX.A.
EXHIBIT A
COVERED SPECIES
Item M.A. 61
EXHIBIT A
COVERED SPECIES
Scientific Name State /CNPS Federal
Bav checkersoot butterflv Euphvdryas editha bayensis — FT
California tiger salamander
Ambvstoma californiense ST FT
California red - legged frog
Rana draytonii CSC FT
Foothill yellow - legged frog
Rana boylii CSC —
Western pond turtle
Clemmys marmorata CSC —
Western burrowing owl Athene cunicularia hypugea CSC MBTA
Least Bell's vireo Vireo bellii pusillus SE FE, MBTA
Tricolored blackbird AAelaius tricolor CSC MBTA
San 7oaauin kit fox Vulpes macrons mutica ST FE
Tiburon Indian paintbrush
Castilleja afnis ssp. neglects
STAB FE
Coyote ceanothus
Ceanothusferrisiae
1B FE
Mount Hamilton thistle
Cirsktm fontinale var. campylon
1B —
Santa Clara Valley dudleya
Dudleya abramsii ssp. setchellii
113 FE
Fragrant fritillary
Fritillaria liliacea
1B —
Loma Prictahoita
Hoita strobilina
1B —
Smooth lessingia
Lessingia micradenia var. glabrata
1B —
Metcalf Canyon jewelflower
Streptanthus albidus ssp. albidus
1B FE
Most beautiful jewelflower
Streptanthus albidus ssp. peramoenus
1B —
Notes:
' Status
Federal
FE Federally Endangered.
FT Federally Threatened.
BGPA Bald and Golden Eagle Protection Act.
MBTA Migratory Bird Treaty Act.
SOC Species of Concern (National Marine Fisheries Service only).
State
SE State Listed as Endangered.
ST State Listed as Threatened.
SR State Listed as Rare.
SC Candidate.
CSC California Special Concern Species.
FP Fully Protected.
California Native Plant Society (CNPS)
1B Rare, Threatened, or Endangered in California and Elsewhere.
Item IX.A. 63
EXHIBIT B
MODEL IMPLEMENTING ORDINANCE
Item IX.A. 65
EXHIBIT B
MODEL IMPLEMENTING ORDINANCE
ORDINANCE NO.
AN ORDINANCE OF THE [NAME OF COUNCIL /BOARD] ADDING [TITLE /CHAPTER
#] TO THE [NAME OF ENTITY] CODE ADOPTING BY REFERENCE AND
IMPLEMENTING THE SANTA CLARA VALLEY HABITAT CONSERVATION
PLAN /NATURAL COMMUNITY CONSERVATION PLAN INCLUDING AUTHORITY
TO COLLECT THE LOCAL DEVELOPMENT MITIGATION FEES ADOPTED BY THE
SANTA CLARA VALLEY HABITAT AGENCY FROM PROJECT APPLICANTS AND
REMIT THE FEES TO THE AGENCY FOR FUNDING THE PRESERVATION OF
>; L\ 1�1 ;}`_li��l��bil�Ir�iFiI�I:L4d�7 iJls<[d�5�1YiD IfiCT�7�1i!I
WHEREAS, the Santa Clara Valley Habitat Conservation Plan /Natural Communities Conservation
Plan ( "HCP /NCCP ") has been developed to preserve the ecosystems of the southeastern portion of
Santa Clara County, which include the [Name of Entity) ( "(City /County)"), the central portion of the
Santa Clara Valley, portions of the Santa Cruz Mountains to the west, portions of the Diablo Range to the
east, the Coyote watershed and portions of the Pajaro watershed, and a significant portion of the
Guadalupe watershed ( "Plan Area ") to conserve and prevent further endangerment of the .plant and
animal species that are dependent upon those ecosystems and to comply with federal and state legal
requirements for such preservation; and
WHEREAS, the HCP /NCCP was drafted by the County of Santa Clara, the Cities of Gilroy, Morgan
Hill, and San lose, the Santa Clara Valley Water District, and the Santa Clara Valley Transportation
Authority (collectively the "Local Partners ") in association with the U.S. Fish and Wildlife Service and the
California Department of Fish and Game, and in consultation with stakeholder groups and the general
public; and
WHEREAS, the County of Santa Clara and the Cities of Gilroy, Morgan Hill, and San Jose formed
the Santa Clara Valley Habitat Agency, a joint powers agency ( "Implementing Entity'), to implement the
HCP /NCCP on behalf of the Local Partners, obtain long -term authorized Take coverage through permits
from the U.S. Fish and Wildlife Service and the California Department of Fish and Game for the Local
Partners' own activities, and extend such authorized Take coverage to private project applicants under
their jurisdiction; and
WHEREAS, the HCP /NCCP was adopted by the [Council /Board] on 201J and
Item IX.A. 67
WHEREAS, the purpose and intent of this ordinance is to:
• protect vegetation communities and natural areas within the Plan Area which are known to
support threatened, endangered, or key sensitive populations of plant and wildlife species;
• enable the [City /County] to achieve the conservation goals set forth in the HCP /NCCP;
• protect the existing character of the [City /County] and the region through the implementation
of a system of reserves which will provide for permanent open space, community edges, and
habitat conservation for species covered by the HCP /NCCP;
• preserve the ability of affected property owners to make reasonable use of their land
consistent with the requirements of applicable laws, which include but are not limited to the
National Environmental Policy Act ( "NEPA ") (42 U.S.C. §§ 4321 - 4347), the California
Environmental Quality Act ( "CEQA") (Public Resources Code § 21000 etseq.), the Federal
Endangered Species Act ( "ESA ") (16 U.S.C. §§ 1531- 1544), the California Endangered Species
Act ( "CESA ") (Fish & Game Code § 2050 etseq.), and the California Natural Community
Conservation Planning Act ( "NCCPA ") (Fish & Game Code §§ 2800 - 2835);
• insure the collection of the Implementing Entity's local development mitigation fees to assist in
the maintenance of biological diversity and the natural ecosystem processes that support this
diversity; and
• maintain economic development within the [City /County] by providing a streamlined
regulatory process from which development can proceed in an orderly process; and
WHEREAS; the [Name of Entity] General Plan, adopted by the [Council /Board] on [Date],
( "General Plan ") contemplates the adoption of the HCP /NCCP, incorporates the goals of the HCP /NCCP,
and includes specific strategies to further the goals of the HCP /NCCP as follows:
[Add list of General Plan consistency findings — see section 2.1 of HCP /NCCP for possible
language]
WHEREAS, the findings set forth herein are based on the [City's /County's] General Plan, the
HCP /NCCP and the studies referenced therein, and the estimated acquisition, management and
maintenance costs for such property as set forth in the HCP /NCCP (a copy of the HCP /NCCP is on file in
the [City /County] Clerk's office); and
WHEREAS, the California Constitution authorizes the [City /County] to enact measures that
protect the health, safety, and welfare of its citizens; and
WHEREAS, Government Code section 66000 et seq. authorizes the Implementing Entity to
impose fees and other exactions to provide necessary funding for public facilities required to mitigate
the negative effect of new development projects within the Plan Area; and
68
Item IX.A.
WHEREAS, in accordance with the Implementing Agreement, the Implementing Entity may
authorize the [City /County] to collect such fees from project applicants on behalf of the Implementing
Entity and remit them to the Implementing Entity; and
WHEREAS, on , 201. the [Council /Board] certified the Draft
Environmental Impact Report /Environmental Impact Statement for the HCP /NCCP project and made
appropriate findings pursuant to CECtA and NEPA under File No.
NOW, THEREFORE, BE IT ORDAINED BYTHE [COUNCIL/BOARD] OF THE [NAME OF ENTITY]:
SECTION 1. [Title /Chapter] is hereby added to the [Name of Entity] Code to read as follows:
Sections:
[TITLE /CHAPTER)
HABITAT CONSERVATION PLAN
Purpose
Adoption of Habitat Conservation Plan by Reference
Definitions
Application to Covered Activities
Mitigation Fees
Authorized Take Coverage
Guidelines
Interpretation
Operative Date
Section Purpose.
The purpose of this [Title /Chapter] is to implement the Santa Clara Valley Habitat Conservation
Plan /Natural Communities Conservation Plan ( "HCP /NCCP ") and the associated Implementing
Agreement and Take Permits in order to provide a regulatory framework for promoting the protection
and recovery of natural resources, including Covered Species, while streamlining the permitting process
for both publicly funded and privately funded planned development in the [Name of Entity]. The
HCP /NCCP was developed by the County of Santa Clara, the Cities of Gilroy and Morgan Hill, the Santa
Clara Valley Water District, and the Santa Clara Valley Transportation Authority (collectively the "Local
Item IX.A. 69
Partners") in association with the U.S. Fish and Wildlife Service and the California Department of Fish
and Game, and in consultation with stakeholder groups and the general public.
As a result of the adoption of the HCP /NCCP by the [City /County], the [City /County] (among the
other Local Partners) is the recipient of long -term endangered species permits /authorized Take
coverage from the U.S. Fish and Wildlife Service and the California Department of Fish and Game for the
[City's /County's] own activities and, in addition to coverage of its own public projects, the [City /County]
will be able to extend authorized Take coverage to private Project Applicants under its jurisdiction.
Rather than separately permitting and mitigating individual projects, the HCP /NCCP evaluates
natural resource impacts and mitigation requirements comprehensively in a manner that is more
efficient and effective for at -risk species and their essential habitats. This approach will allow the
[City /County] to streamline future mitigation requirements into one comprehensive program. The U.S.
Fish and Wildlife Service ( "USFWS ") the California Department of Fish and Game ( "CDFG ") authorized
Take coverage also provides assurances that no further commitments of funds, land, or water from
covered public and private projects will be required to address impacts on Covered Species beyond that
described in the HCP /NCCP to address changed circumstances as long as the HCP /NCCP is properly
implemented..
In addition to strengthening local control over land use and species protection, the HCP /NCCP
provides a more efficient process for protecting natural resources by creating new habitat reserves that
will be larger in scale, more ecologically valuable, and easier to manage than the individual mitigation
sites created under the current approach. This more efficient and streamlined approach to obtaining
authorized Take coverage for both public and private projects will significantly reduce the time and
resources previously required to obtain Take coverage on an individual project-by- project basis. Unless
an activity is deemed to be in compliance with the federal and state Endangered Species Acts by the
Implementing Entity, as described in Chapter 6.2 of the HCP /NCCP, all covered activities occurring within
the Local Plan Area will be subject to applicable conditions and fees described in the HCP /NCCP.
Section Adoption of Habitat Conservation Plan /Natural Communities Conservation Plan by
Reference.
The HCP /NCCP is incorporated by reference as though fully set forth herein. Complete copies of
the HCP /NCCP are available for inspection at the Office of the [City /County] Clerk and the [Name of
Administering Department].
Section Definitions.
The definitions set forth in this section shall govern the application and interpretation of this
[Title /Chapter]. Words and phrases not defined in this section shall be interpreted so as to give this
[Title /Chapter] its most reasonable application.
70
Item IX.A.
A. "Building Permit" includes a full structural building permit as well as a partial permit such as a
foundation -only permit, grading permit, or any other permit or approval for a project authorizing a
ground- disturbing activity for a Covered Activity.
B. "Covered Activity" means any activity defined in Section 2.3 of Chapter 2 of the HCP /NCCP as
a covered activity and not otherwise exempted from the requirements of the HCP /NCCP.
C. "Covered Species" means the .species, listed and non - listed, whose conservation and
management are provided for in the HCP /NCCP and for which incidental Take is authorized by the
Wildlife Agencies pursuant to the Take Permits. Covered Species are also listed in Exhibit A to the
Implementing Agreement.
D. "Habitat Conservation Plan /Natural Communities Conservation Plan" or "HCP /NCCP" means
the Santa Clara Valley Habitat Conservation Plan /Natural Communities Conservation Plan adopted by
the [Council /Board] on . 201, and any amendments thereto.
E. "Implementing Agreement" means that agreement made and entered into by and among the
United States Fish and Wildlife Service ( "USFWS ") of the United States Department of the Interior, the
California Department of Fish and Game ( "CDFG ") of the State of California Natural Resources Agency,
the Santa Clara Valley Habitat Agency (the "Implementing Entity'), the County of Santa Clara ( "County "),
the City of San Jose ( "San Jose "), the City of Gilroy ( "Gilroy "), the City of Morgan Hill ( "Morgan Hill "), the
Santa Clara Valley Water District ( "Water District "), and the Santa Clara Valley Transportation Authority
( "VTA ") that defines the parties' respective roles and responsibilities and provides a common
understanding of actions that will be undertaken to implement the HCP /NCCP.
F. "Implementing Entity" means the Santa Clara Valley Habitat Agency formed on
201, by and among the County of Santa Clara and the Cities of Gilroy, Morgan Hill, and San Jose
pursuant to the Joint Powers Act, Gov. Code § 6500 et seq.
G. "Local Plan Area" means that portion of the geographic study area defined in the HCP /NCCP
that lies within the [corporate boundaries /unincorporated area] of the [Name of Entity].
H. "Mitigation Fees" or "Fees" means any Habitat Plan fee(s) that applies to Covered Activities
in the Local Plan Area as adopted by the Implementing Entity in accordance with Chapter 9 of the
HCP /NCCP and the fee studies in support thereof, and any amendments to those fees, unless otherwise
exempted from the fee requirements of the HCP /NCCP by the Implementing Entity.
I. "Planning Permit" means any discretionary permit that authorizes a ground disturbing activity
for a Covered Activity including, but not limited to, [list each agency's applicable discretionary land use
approvals here, such as tentative map, parcel map, conditional use permit, site development permit,
planned development permit, or special use permit], or any other discretionary permit, excluding
general plan amendments, zoning and rezoning, annexation, specific plans, and area development
policies. The term "Planning Permit" also includes any Building Permit where no other Planning Permit
is required.
J. "Project Applicant" means any person or entity applying for a Planning Permit for a project
authorizing a ground- disturbing activity for a Covered Activity, including any person or entity opting in to
the HCP /NCCP pursuant to Chapter 6.2 of the HCP /NCCP.
K. "Take" and "Taking" have the same meaning provided by the Federal Endangered Species Act
( "ESA ") (16 U.S.C. §§ 1531 -1544) and its implementing regulations with regard to activities subject to the
ESA, and also have the same meaning provided in section 86 of the California Fish and Game Code with
Item IX.A. 71
regard to activities subject to the California Endangered Species Act ( "CESA ") (Fish & Game Code § 2050
et seq.), and the California Natural Community Conservation Planning Act ( "NCCPA ") (Fish & Game Code
§§ 2800 - 2835).
L. "Take Permits" means the federal incidental Take permit issued by USFWS to the
Implementing Entity, the County, San Jose, Gilroy, Morgan Hill, the Water District, and VTA (collectively,
"Permittees ") based on the HCP /NCCP pursuant to Section 10(a)(1)(0) of the ESA, and the state
incidental Take permit issued by CDFG to the Permittees based on the HCP /NCCP pursuant to Section
2835 of the California Fish and Game Code.
Section Application to Covered Activities.
All Project Applicants for Covered Activities within the Local Plan Area shall comply with the
conditions on Covered Activities in Chapter 6 of the HCP /NCCP. Each Planning Permit application for a
Covered Activity in the Local Plan Area shall include details of the methods and timing in which the
project will comply with the HCP /NCCP in the form and manner required by the Director of [Name of
Administering Department]. Applicable conditions on Covered Activities from Chapter 6 of the
HCP /NCCP as well as other measures required to implement the conservation strategy of the HCP /NCCP
shall be included in each Planning Permit approval for a Covered Activity.
Section Mitigation Fees.
A. As a condition of each land use approval for a Covered Activity in the Local Plan Area, the
Mitigation Fees shall be paid in full by the private Project Applicant to the [City /County] no later than
the date of issuance by the [City /County] of a Building Permit. The Mitigation Fees shall be paid to the
Implementing Entity at the time of issuance of the first Building Permit if more than one Building Permit
is required for the project.
B. If the Implementing Entity authorizes another manner of compensation in lieu of the
Mitigation Fees (such as a land donation in lieu of payment of the Mitigation Fees), the Project Applicant
shall provide the [City /County] with written documentation from the Implementing Entity of compliance
with such alternative manner of payment and the dollar equivalent amount of such alternative manner
of compensation.
C. In the event the [City /County] determines the project subject to the Planning Permit to be
exempt from payment of the Mitigation Fees, no Mitigation Fees shall be required forthe project.
D. The [City/County] may collect the Mitigation Fees on behalf of the Implementing Entity if
authorized to do so by the Implementing Entity.
Section Authorized Take Coverage.
Upon payment in full of the Mitigation Fees and approval of Planning Permits incorporating all
applicable HCP /NCCP conditions of approval, the Project Applicant shall receive authorized Take
coverage for the Covered Activity in accordance with the terms of the HCP /NCCP, the Implementing
Agreement, and the Take Permits.
72
Item IX.A.
Section Guidelines.
The [Council /City Manager, in conjunction with the [Director of Planning /Planning, Building and
Code Enforcement,]] may adopt guidelines to assist in the implementation and administration of all
aspects of this [Title /Chapter].
Section Interpretation.
In the event of a conflict between any term or requirement of this [Title /Chapter], the HCP /NCCP,
the Implementing Agreement or the Take Permits, the term or requirement of the Take Permits shall
govern.
Section Operative Date.
This [Title /Chapter] shall be operative upon adoption by the Implementing Entity of the
Mitigation Fees and the issuance of the Take Permits by the U.S. Fish and Wildlife Service and the
California Department of Fish and Game.
[Include agency- specific adoption language and signature block]
Item IX.A. 73
EXHIBIT C
NEIGHBORING LANDOWNER CERTIFICATE OF INCLUSION
Item IX.A. 75
Exhibit C
SANTA CLARA VALLEY HABITAT PLAN
NEIGHBORING LANDOWNER CERTIFICATE OF INCLUSION
The United States Fish and Wildlife Service and the California Department of Fish and Game have issued
Permits pursuant to the federal Endangered Species Act and the California Natural Community
Conservation Planning Act (collectively "Permits ") authorizing "Take" of certain species in accordance
with the terms and conditions of the Permits, the Santa Clara Valley Habitat Plan ( "Habitat Plan ") and
the associated Implementing Agreement. Under the Permits, Section 10.2.7 of the Habitat Plan, and
Section 7.4.3 of the Implementing Agreement, certain activities by the party or entity below are
authorized to "Take" certain species (California red - legged frog, California tiger salamander, and
Western pond turtle), provided all applicable terms and conditions of the Permits, the Habitat Plan, and
the Implementing Agreement are met.
As the owner /operator of the property described by Assessor's Parcel Number and gross acres on
Exhibit 1 attached thereto and incorporated herein by this reference, you are entitled to the protection
of the Permits to Take those species identified in Section 7.4.3 in connection with normal agricultural
practices occurring within a one mile of the boundary of Reserve System lands and with the limitations
set forth in Section 10.2.7 of the Habitat Plan and Section 7.4.3 of the Implementing Agreement. In the
event that the property depicted on Exhibit 1 is used for other purposes without the express consent of
the Santa Clara Valley Habitat Agency, Take Authorization under the Permits will automatically cease.
Such authorization is provided as described in the Permits, the Habitat Plan, and the Implementing
Agreement. By signing this Certificate of Inclusion you signify your election to receive Take
Authorization under the Permits in accordance with the terms and conditions thereof. This Certificate of
Inclusion does not give state and federal agencies additional regulatory control over the signatory nor
require the signatory to provide additional information not called for in the Certificate of Inclusion, but
instead ensures compliance with 50 Code of Federal Regulations, section 13.25(d). Coverage under the
Permits will become effective upon receipt of the fully - completed and executed Certificate of Inclusion
by the Santa Clara Valley Habitat Agency. In the event that the subject property is sold or leased, buyer
or lessee must be informed of these provisions and execute a new Certificate of Inclusion.
Owner
Operator
Print Name:
Print Name:
Signature:
Signature:
Address:
Address:
Item IX.A. 77
City /State /Zip: City /State /Zip:
Phone: Phone:
Date: Date:
Santa Clara Valley Habitat Agency
By (Print Name:
Signature:
Date:
Item IX.A. 78