Coachella Valley MSHCP and Other Land Use Regulations Affecting Development in the Desert

Transcription

1 Coachella Valley MSHCP and Other Land Use Regulations Affecting Development in the Desert Presented By: Paul Weiland, John Erskine and Robert Horton December 3, 2008 nossaman.com Copyright, 2008 Nossaman LLP. All Rights Reserved. The information contained herein does not constitute a legal opinion and should not be relied upon by the reader as legal advice or be regarded as a substitute for legal advice.

2 Outline Overview of the Endangered Species Act Habitat Conservation Planning under the Endangered Species Act Coachella Valley Multiple Species Habitat Conservation Plan Overview Conservation Strategy Implementation Process Comparison to Western Riverside MSHCP 2

3 Outline Overview of the Endangered Species Act Habitat Conservation Planning under the Endangered Species Act Coachella Valley Multiple Species Habitat Conservation Plan Overview Conservation Strategy Implementation Process Comparison to Western Riverside MSHCP 3

4 Endangered Species Act Major Regulatory Provisions Listing of species and designation of critical habitat ESA 4, 16 USC 1533; 50 CFR pt. 424 Take prohibition ESA 9, 16 USC 1538; 50 CFR Consultation process for federal actions ESA 7, 16 USC 1536; 50 CFR ; Section 7 Consultation Handbook Habitat Conservation Planning process for non-federal actions ESA 10, 16 USC 1539; 50 CFR 17.22(b)(2); HCP Handbook & Addendum (a.k.a., 5-Point Policy ) 4

5 Outline Overview of the Endangered Species Act Habitat Conservation Planning under the Endangered Species Act Coachella Valley Multiple Species Habitat Conservation Plan Overview Conservation Strategy Implementation Process Comparison to Western Riverside MSHCP 5

6 Habitat Conservation Planning ESA amended in 1982 to allow non-federal entities to seek authorization for the incidental take of listed species (ESA 10) Applicant prepares a Habitat Conservation Plan There is no timetable for the process Fish and Wildlife Service issues Incidental Take Permit Vary in scope and complexity from large-scale, multiple species HCPs, to small-scale, single-species HCPs 6

7 Why a Multiple Species HCP? Efficiency (once formally approved) Long-term Coverage Regional, Not Piecemeal Conservation Planning Broad No Surprises Assurances 7

8 Outline Overview of the Endangered Species Act Habitat Conservation Planning under the Endangered Species Act Coachella Valley Multiple Species Habitat Conservation Plan Overview Conservation Strategy Implementation Process Comparison to Western Riverside MSHCP 8

9 The Coachella Valley MSHCP Effective October 1, 2008 Expires October 1, 2083 Covers 1.2 million acres, 27 species, and 27 natural communities Provides take coverage under both federal and state law Permit holders include Riverside County and cities in the Plan Area Implemented by the Coachella Valley Conservation Commission (CVCC) 9

10 Outline Overview of the Endangered Species Act Habitat Conservation Planning under the Endangered Species Act Coachella Valley Multiple Species Habitat Conservation Plan Overview Conservation Strategy Implementation Process Comparison to Western Riverside MSHCP 10

11 CV MSHCP Conservation Strategy Assembly of a 240,000-acre MSHCP Reserve from land within 21 Conservation Areas Conservation objectives and required measures for each Conservation Area (section 4.3) Is my (client s) land in one or more Conservation Areas? If so, which ones? Web-based Preliminary Conservation Report keyed to APNs available at If it is in a Conservation Area, look up the applicable conservation objectives and required measures 11

12 Example: The Whitewater Floodplain Conservation Area Sample conservation objectives Conserve 4140 acres in total Conserve 2671 acres of core habitat for Coachella Valley milkvetch Conserve occupied burrowing owl burrows Maintain ability of wildlife to cross Indian Avenue and Gene Autry Trail by providing undercrossings 12

13 Example: The Whitewater Floodplain Conservation Area Sample required measures Local Permittee must ensure that river and wind sand transport capacity are not reduced when Gene Autry Trail and Indian Avenue are widened The Coachella Water District must deposit any sand removed from the groundwater recharge basins during O&M in the sand transport area 13

14 CV MSHCP: Conservation Strategy Other potentially applicable requirements Species-specific avoidance, minimization, and mitigation measures (section 4.4) Burrowing Owls Land use adjacency guidelines (section 4.5) Light Noise Predators Peninsular Bighorn Sheep 14

15 Avoidance, Minimization, and Mitigation Measures Apply within one or more Conservation Areas Required surveys must be conducted consistent with accepted protocols Survey results must be submitted to Permittee (City or County) and Implementing Entity (CVCC) but not to Wildlife Agencies 15

16 Avoidance, Minimization, and Mitigation Measures Measures specified for Biological corridors Burrowing owls Covered riparian bird species Crissal thrasher Desert tortoise Fluvial sand transport Le Conte s thrasher Mesquite hummocks and mesquite bosque natural communities Peninsular bighorn sheep habitat Triple-ribbed mlikvetch 16

17 Land Use Adjacency Guidelines MSHCP defines adjacent as sharing a common boundary with any parcel in a Conservation Area Local Permittees have some discretion to determine when the Guidelines are applicable Guidelines exist for: Drainage Toxics Lighting Noise Invasive species 17

18 Outline Overview of the Endangered Species Act Habitat Conservation Planning under the Endangered Species Act Coachella Valley Multiple Species Habitat Conservation Plan Overview Conservation Strategy Implementation Process Comparison to Western Riverside MSHCP 18

19 CV MSHCP: Implementation Imposed on applicants for discretionary local permits through: Joint Project Review (JPR) process for any project within a Conservation Area (section ) Habitat Evaluation and Acquisition Negotiation Strategy (HANS) process for projects in portions of Santa Rosa and San Jacinto Mountains Conservation Area (section ) Avoidance, minimization, and mitigation measures applicable to lands within Conservation Areas and based on site characteristics (using an approved biologist) (section 4.4) Land use adjacency guidelines (section 4.5) Mitigation fee (est. $5,730/acre) 19

20 CV MSHCP: JPR and HANS Joint Project Review (JPR) is triggered by receipt of application for discretionary permit for a project JPR serves to ensure Plan implementation Where HANS applies, JPR and HANS occur in concert with one another HANS serves to determine if the subject property is necessary for inclusion in the Reserve System 20

21 CV MSHCP: JPR Processing Step 1. Local Permittee transmits application to CVCC within 30 days* (or applicant can request pre-application review directly from CVCC) Step 2. CVCC provides comments within 30 days* of receipt or 14 days* of an initial project review meeting, if held Step 3. Wildlife Agencies provide comments within 30 days* Step 4. If CVCC and/or Wildlife Agencies identify concerns, meet and confer within 30 days* with additional meetings if necessary 21

22 CV MSHCP: JPR Processing *None of the processing deadlines are enforceable 22

23 CV MSHCP: JPR Processing Permittee Plan Implementation Mechanisms E.g., County of Riverside Board Policy No. A-61 Provides guidance to determine how the Plan s 10% maximum take or disturbance of habitat within Conservation Areas will be distributed Up to 8% of take of each Plan habitat type for each Conservation Area should be allocated to development projects Reserves 1% of take for each Conservation Area by habitat type for a contingency reserve pool of unallocated take Reserves 1% of take for each Conservation Area for unanticipated/uncovered County projects 23

24 CV MSHCP: JPR Processing Permittee Plan Implementation Mechanisms E.g., County of Riverside Board Policy No. A-61 Allows for up to 8% disturbance of each Plan habitat type within a proposed project s gross acreage Allows 1/2 acre gross to accommodate one single-family residence on existing legal lots Private projects may apply for take in excess of 8% prior to applying for land use entitlements Some projects are categorically exempt (e.g., change of use) 24

25 Outline Overview of the Endangered Species Act Habitat Conservation Planning under the Endangered Species Act Coachella Valley Multiple Species Habitat Conservation Plan Overview Conservation Strategy Implementation Process Comparison to the Western Riverside MSHCP 25

26 CV MSHCP v. Western Riverside MSHCP Coachella Valley Western Riverside Plan Area 1.2 million acres 1.26 million acres Covered Species 27 species 146 species Conservation Strategy Objectives and required measures Cell criteria 26

27 CV MSHCP v. Western Riverside MSHCP Mitigation Fees CV MSHCP Mitigation Fee Currently est. $5,730/acre required to adequately fund Subject to a nexus study to determine increases at least every 5 years Riverside County Ord. No.875: Residential fee $235 to $1,284/unit; Commercial/Industrial $5,730/acre to be developed (annual CPI adjustment) Western Riverside MSHCP Mitigation Fee Indexed to the consumer price index July 1, 2008 recommended fees $6,597/acre for commercial and industrial projects July 1, 2008 recommended residential fees between $1,008/unit and $1,938/unit depending on project density 27

28 CV MSHCP v. Western Riverside MSHCP Implementation similarities Local land use authority is lead implementing agency Primary implementation mechanisms are JPR and HANS Implementing Entity and Wildlife Agencies participate in JPR 28

29 CV MSHCP v. Western Riverside MSHCP Implementation differences What the CV MSHCP Requires that Western Riverside Doesn t Outside of Conservation Areas, CV MSHCP only requires a fee payment (and possible compliance with Adjacency Guidelines) Approved Biologist is a prerequisite in CV MSHCP What Western Riverside Requires that the CV MSHCP Doesn t Riparian/riverine habitats are separately regulated in the Western Riverside MSHCP Requires a Determination of Biologically Equivalent or Superior Preservation (DBESP) for impacts to identified species and riparian/riverine areas 29

30 Comparison of Implementation Agreements Critical Habitat Designation for Covered Species Coachella Valley Lands within the Plan Area will not be designated to the maximum extent allowable for Covered Species Western Riverside Lands within the Plan Area will not be designated to the maximum extent allowable for Covered Species Adequately Conserved Section 7 Consultations CEQA Permit Revocation or Suspension Subsequent Consultations will be consistent with MSHCP Consultation to the maximum extent allowable Except as required by law, CDFG will not recommend or seek to impose mitigation for impacts to Covered Species in a project s CEQA document Wildlife agencies have right to revoke or suspend all or portions of the Permits for a number of reasons including because a Permittee fails to ensure MSHCP implementation or approves a project that significantly compromises the viability of the MSHCP Reserve System 30

31 What To Watch For In March 2009, the Fish and Wildlife Service will be issuing a final rule designating critical habitat for the Peninsular bighorn sheep Commencement of amendment process to add lands within the jurisdiction of the City of Desert Hot Springs to the Plan Area Implementation of the Plan, including the ability to meet the JPR deadlines and expedited interagency consultation by the Service 31

32 Strategies for Preserving Your Development Approvals Subdivision Map Act Extension Development Agreements Fee Deferrals DDAs, OPAs, CFDs and IOUs 32

33 Strategies for Preserving Your Development Approvals Subdivision Map Act Extension General Provisions Life of a Tentative Map 24 Months from Approval or Conditional Approval by Local Agency Special Statutory Extension 1. September 13, 1993 (24 months ) 2. May 14, 1996 (12 months ) 3. July 15, 2008 (12 months per SB )* Local Agency Discretionary Extensions Tolling Period for Pending Litigation or Moratoria Sample Ordinance (City of San Rafael) 33

34 Strategies for Preserving Your Development Approvals Development Agreements Tentative maps on property subject to a (statutory) Development Agreement authorized by Government Code sections and may be extended for a period of time provided in the Agreement, but NOT BEYOND THE TERM OF THE AGREEMENT. Government Code section (a)(1). Obtain or Amend Existing Development Agreements 34

35 Strategies for Preserving Your Development Approvals Fee Deferrals Government Code Section et seq. (existing law) AB 2604 (effective August 1, 2008) DDAs, OPAs, CFDs and IOUs 35

36 Selling Age Restricted Units to Under-Age Buyers 36

37 Questions? Panorama of the view south from Keys View in the Little San Bernardino Mountains, Joshua Tree National Park, California, USA, Oct. 4, Copyleft 2008 Matthew Field, Permission granted by the author to copy, distribute and/or modify this work of art under the terms of the Free Art License, a copy of which can be found at and other sources. 37

38 Contact Paul Weiland, John Erskine & Robert Horton Von Karman Ave., Suite 1800 Irvine, CA Phone: Fax: nossaman.com 38