To:   DRIVING A STRONG                                From:     Stephen M. Haase

                        ECONOMY COMMITTEE                                          

                                                                                                              

   Subject:   HABITAT CONSERVATION PLAN       Date:      June 13, 2003

 

COUNCIL DISTRICT: Citywide

 

 

RECOMMENDATION

 

Accept the status report on the Habitat Conservation Plan (HCP)/ Natural Community Conservation Plan (NCCP).

 

 

BACKGROUND

 

The purpose of this memo is to update the Committee on the current status of the City’s efforts to prepare a Habitat Conservation Plan (HCP)/Natural Community Conservation Plan (NCCP).  A status report was previously provided to the Economic Development and Environment Committee on May 6, 2002.  The Committee reported to Council on May 21, 2002 as item 4.1.a.

 

On June 25, 2001, the City committed to participate in the development of a multi-species Habitat Conservation Plan (HCP) and Natural Community Conservation Plan (NCCP) in a letter to the United States Fish and Wildlife Service (USFWS), which was also provided to the California Department of Fish and Game (CDFG).  The City committed to jointly prepare the Habitat Conservation Plan/National Community Conservation Plan (HCP/NCCP) with Santa Clara County to be submitted for approval by June 25, 2006.  The County also committed to the joint preparation of an HCP/NCCP, as did the Santa Clara Valley Water District.  This commitment allowed various projects of mutual interest, including the construction of the Bailey Avenue/Highway 101 interchange, to proceed upon the issuance of a Biological Opinion on July 31, 2001 by the USFWS.

 

The commitment to the HCP/NCCP was made in response to a request from the USFWS that an HCP be prepared to address certain direct and indirect impacts to federally listed endangered species and their habitat from anticipated private development and public projects in San Jose and the County.  The CDFG requested that a NCCP, the State’s version of an HCP, be prepared concurrently with the HCP in response to the same projects.

 

ANALYSIS

 

At the time of agreeing to prepare an HCP, the City anticipated that developers in North Coyote Valley would pay for the costs.  Since the significant downturn in the economy, that funding source has disappeared.  Staff has continued to work on the HCP/NCCP despite having no budget, following two parallel tracks.  Staff has continued to meet with the other local partner agencies; County, SCVWD, and VTA, actively over the last several months to develop a draft MOU for a regional plan as previously committed.  Staff has also worked with the major property owners in the Coyote Valley Urban Reserve to formulate a strategy to fund and prepare a HCP focused on Coyote Valley concurrently with the formulation of the Coyote Valley Specific Plan, as directed by the USFWS.

 

Regional HCP/NCCP

 

MOU

 

Efforts toward the development of a draft MOU among the local partner agencies were temporarily held up for the early months of this year due to other more urgent priorities, lack of staff, and budget constraints.  Due to the lack of progress on the MOU, the City recently funded and contracted with an experienced facilitator to assist the local partners in pulling together a draft MOU.  The MOU is intended to establish the “ground rules” among the local partners for the development of a regional HCP/NCCP at a programmatic level.  The MOU would be agreed to and adopted by all the local partner agencies.

 

Staff expects to have a draft MOU by the end of this month.  The last of three intensive working sessions led by the City funded facilitator will be held on June 20 with the expectation that a final administrative draft will be ready for internal City review shortly thereafter.  Upon completion of internal review, the draft would be available for public review and comment during July, with Council action anticipated to be taken in August.  The MOU would be scheduled in August for board approvals at the SCVWD and Santa Clara County.

 

Cost and Schedule

 

A schedule for the regional HCP will be developed after the adoption of the MOU by the local partner agencies.  The MOU is expected to establish respective roles, cost sharing, use and management of consultants and staffing.  The first task of executing the MOU will be selecting a full-time project manager.  The project manager’s first task will be to draft a Planning Agreement with the three local agencies that will go to the resource agencies which will establish the mutually agreed upon schedule. 

 

 

The formal application to the USFWS requires the submittal of three essential work products: a draft HCP, a draft EIS/EIR, and a draft Implementation Agreement The HCP process is expected to take 3-5 years to complete depending upon the scope of the effort and availability of funding.

 

There are four mandatory elements of an HCP:

  1. Impacts to listed species likely to result,
  2. Measures taken to mitigate impacts and funding for the measures
  3. Alternatives considered and reasons for rejection, and
  4. Additional measures required by the USFWS and NMFS.

 

The draft HCP must be prepared based on a significant level of scientific fieldwork, analysis, review by additional scientific peer review panels and community stakeholders and involvement.  The fieldwork must be conducted according to specified protocols to study each species, many of which only are active at very limited times of the year.  The protocols can include multi-year field monitoring to collect sufficient information to begin the drafting of an HCP.  Due to the wide fluctuations of specific species tied to weather and other uncontrolled events, even where the protocol only requires a one-year survey, it may be prudent to conduct multi-year surveys to ensure an accurate depiction of the species health occurs, rather than potentially basing the HCP on one bad year. The review period itself is approximately one year from the date of completion of a draft HCP prior to consideration of the draft HCP by the USFWS for approval.

 

The permit duration of an HCP is typically 25 to 30 years, so that the development and economic analysis of a funding program to implement the ongoing monitoring and management of habitat lands will be a major work item.  This also requires the active participation of the stakeholders representing the environmental interests as well as the development interests.

 

The preparation of an EIR / EIS to cover the adoption of the HCP will be concurrent with the drafting of the HCP.  The document will satisfy the requirements of both the national Environmental Protection Act (NEPA) and CEQA and address the authority under the Endangered Species Act to “take” the species covered by the HCP.  With this authority, separate approvals by USFWS will not be required for individual projects as long as those projects conform to the HCP and implement the mitigation included in the plan. 

 

The Implementation Agreement will be prepared and approved by the USFWS that documents how the HCP will be implemented.  This allows “take authority” to be utilized by the local agencies.  This agreement will spell out how mitigation occurs, the linkages, timing, funding, management, monitoring, long-term maintenance, etc.  To conclude the agreement drafting will require significant effort to identify the potential habitat mitigation lands to be acquired, a mechanism for acquiring those lands, a strategy to long-term maintenance for the habitat, and the limits of “take authority”.  As the main purpose of the USFWS is to protect the species in questions, this part of the whole process will be the most challenging as San Jose will be assuming the role of deciding how best to protect the species and being responsible for the survival of the species including habitat.

 

The City contacted several firms that provide HCP preparation services to estimate the magnitude of costs associated with the HCP preparation.  The County also conducted similar efforts as well information from the USFWS itself on their experience on the time required, and budget to complete an HCP of this scale.

 

Based on this review, staff estimates that the costs will range from $3 to $4 million for a Coyote Valley only HCP to $8 to $10 million for a south county HCP, of which San Jose would bear approximately one third of the costs.

 

Accurate cost estimates will be prepared based upon the geographic scope approved in the MOU.  The expectation at this time is that there will be an initial phase that is focused on an area less than county wide.  This phasing would reflect the availability of funding from different sources.  However, the program will be developed to allow subsequent phases and expansions to ultimately encompass the Santa Clara Valley region.  A phased approach is expected to be a more cost-effective approach given the great diversity of species and habitat in the larger region.

 

Coyote Valley HCP/NCCP

 

Subsequent to Council’s decision last year to move forward with the preparation of the Coyote Valley Specific Plan, City staff met with representatives of the USFWS to discuss the preparation of an HCP focused on Coyote Valley.  USFWS stated at that meeting that they expect an HCP, which addresses Coyote Valley, to be adopted prior to the City’s adoption of the Specific Plan.  Staff explained the City’s deadline (December 2005) and budget constraints for the preparation of the specific plan and environmental documents, and the impact to the process being delayed pending the completion of a regional HCP.  USFWS seemed open to the preparation of a more focused Coyote Valley HCP, which would be prepared to nest within the larger regional HCP program. Staff has continued to pursue this two-tiered approach.  This topic will be more formally discussed with the resource agencies in the next month or so.

 

A funding agreement and memo for the concurrent preparation of the Coyote Valley Specific Plan and EIR, and the HCP and EIS/EIR is being prepared for Council consideration at the June 24 meeting.  The final details of that proposal are not available at this time as discussions are still pending.  Staff anticipates being able to present more information at the DSEC June 23 meeting.

 

 

PUBLIC OUTREACH

 

A copy of this memo has been posted on the PBCE HCP web site. A presentation was made to the Coyote Valley Specific Plan Task Force members on the HCP process and relationship to the Specific Plan effort.  This memo was also distributed to the Task Force members.

 

 

COORDINATION

 

The preparation of this memo was coordinated with the City Attorney’s Office.

 

 

STEPHEN M. HAASE, DIRECTOR

Planning, Building and Code Enforcement