ESP 179- Winter 2013

Biological ResourcesFebruary 21, 2013

Instructor: Angela McIntire, Esq.

Lecture Outline Federal Regulatory Framework

Federal Endangered Species Act of 1973 Section 404 of the Clean Water Act Migratory Bird Treaty Act

State Regulatory Framework California Endangered Species Act California Native Plant Society Porter-Cologne Water Quality Control Act Section 401 of the Clean Water Act Streambed Alteration Agreements (CDFW Code Section

1600) Local Regulatory Framework (Generally) Review of Methodology Review CEQA Checklist Questions

Administered by United States Fish and Wildlife Service and National Marine Fisheries Service

Outlines Process for listing Species

Endangered

Threatened

Proposed

Methods for listing species

Examples: Gray Wolf in the Northern Rockies; VELB; Bald Eagle

Federal Endangered Species Act

Federal Endangered Species Act Section 9 – Prohibits “Take”

Take means “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in such conduct

This includes disturbance to habitats used by a species during any portion of its life history

Under ESA, USFWS may authorize “take”, however activities authorized by permits may differ depending on whether species is listed as endangered or threatened

Endangered Species – Permits for scientific research; enhancement of propagation or survival; taking that is incidental to otherwise lawful activity

Threatened Species – Permits issued for zoological, horticultural, or botanical exhibition; educational use; special purposes consistent with ESA

Individuals Registered with USFWS may obtain captive-bred wildlife permits to buy and sell within US non-native endangered or threatened animals (Separate permit to import or export such species and can’t keep as pet)

Section 404 of the CWA Administered by US Army

Corps of Engineers Regulates discharge of dredge

and fill material into “Waters of the United States” Nationwide Permit – Authorize

a number of activities in Waters of US if activity can demonstrate compliance with standard conditions

Individual Permit - Area excess of 0.5 acre of waters

Both require NO impacts to endangered species US Fish and Wildlife Service National Oceanic and

Atmospheric Association (NOAA) Fisheries

Note: Waters of the United States Waters or tributaries to lakes, rivers, intermittent

and perennial streams, mudflats, sand-flats, natural ponds, wetlands, wet meadows, and other aquatic habitats

Ordinary High Water Mark Wetlands - South Pacific Division’s Guidelines for

Jurisdictional Delineations for Waters of the US Require Three Conditions:

Hydrophytic VegetationHydric SoilsWetland Hydrology

All waters must show connectivity to a “Navigable Water” to be jurisdictional (i.e. “Significant Nexus” from 2006 Rapanos decision)

Migratory Bird Treaty Act (1918) Protects all common wild

birds found in the US Exceptions:

House sparrow, starling, feral pigeon

Resident game birds (managed separately by state)

Pheasant Grouse Quail Wild Turkey

Unlawful for anyone to kill, capture, possess, buy, sell, trade, ship, import, or export any migratory bird including feathers, parts, nests, or eggs

CA Endangered Species Act Analogous to Federal ESA CDFW Administers

California ESA Endangered Species Threatened Species Rare Species (plants) Species of Concern

(informal) – no legal protection, but recognized as sensitive by CDFW

Endangered and Threatened protected from take

California Native Plant Society CA Resource Conservation

Organization that has inventoried Sensitive Plant Species

Summarizes information on distribution, rarity, and endangerment of CA vascular plants

Provides inventory of plant communities considered sensitive by State, Federal, Academic Institutions, various Conservation Groups

Bases sensitivity determination on: Number Size of remaining occurrences Recognized Threats

Porter-Cologne Water Quality Control ActEnacted in 1969, the Act designated the

State Water Resources Control Board with the ultimate authority over state water rights and water policy

Also designated Regional Boards for day-to-day quality on a regional level Administer Basin Plans NPDES Permits (Point Sources – i.e. “pipes”) CWA 401 Certification Wetland and Riparian Area Protection Policy

(NEW)

Section 401 of CWAAdministered by State Water Resources

Control Board“[A]ny applicant for a Federal permit for

activities that involve a discharge to waters of the State, shall provide the Federal permitting agency a certification from the State in which the discharge is proposed that states the discharge will comply with the applicable provisions under the Federal Clean Water Act.”

Streambed Alteration Agreements Outlined in CDFW Code Section 1600-1603 “[I]t is unlawful for any person to substantially divert or

obstruct the natural flow or substantially change the bed, channel, or bank of any river, stream, or lake designated by the department, or use any material from the streambeds, without first notifying the department of such activity.”

CDFW Jurisdiction Ephemeral, Intermittent, Perennial watercourses Dry washes (NO NEED FOR OHWM!) Characterized by hydrophitic vegetation, definable bed and

banks, presence of fish and wildlife resources Does NOT include isolated wetlands

Also includes adjacent habitat Oak woodlands in canyon bottoms Willow woodlands that function as part of riparian system

Local Ordinances (Generally) Tree Ordinances

Regulate Removal of certain native trees Examples: Oaks, Black Walnut, Madrone, Redwood,

California Bay Typically identify “Protected Trees” as being a certain

diameter Identify compensatory mitigation and/or replacement

ratios Swainson’s Hawk

Regulates Nesting and Foraging Habitat Identifies compensatory mitigation and/or replacement

ratios Riparian Setbacks

Defines building and development setbacks from riparian systems

Local Ordinances (Generally) Habitat Conservation Plans

Section 10 of ESA Plan prepared under ESA by nonfederal parties to obtain

permits for incidental taking of threatened and endangered species

Plan must specify: Impacts to species that will occur Steps taken to minimize and mitigate the incidental take Funding available Alternative actions considered, but not taken Other necessary appropriate measures

After review of proposed conservation plan, USFWS/NOAA and/or CDFW issue incidental take permits, provided a determination is made that incidental taking “will not appreciably reduce the likelihood of the survival and recovery of the species in the wild”

Methodology Literature Review

Topographic Quadrangle/Aerial Maps Soil Surveys CDFW California Wildlife Habitat Relationship System California Natural Diversity Database California Native Plant Society Existing Habitat Conservation Plans

Site Visit Note time, climate conditions Characterize wildlife and plant species onsite Species specific requirements

Sources of InformationCalifornia Natural Diversity Data Base

Department of Fish and Game (CDFW)

The California Native Plant Society's Inventory of Rare and Endangered Plants of

California

CDFW's list of special animals and plants California Statewide Wildlife Habitat

Relationships System

Sample Species Specific GuidanceBurrowing Owls

Survey Protocol and Guidance

Blunt Nose Leopard LizardSwainson Hawks

Staff Report and Guidance

California Red-Legged FrogSan Joaquin Kit Fox

CNDDB Map

Mitigating Biological Resources Species and/or Habitat Specific Often Regional Based Mitigation Fees and Funds Mitigation Banks

Pre Approved Allows for larger conservation areas Not always 1:1 ratio Success Rates Transfer Type Convergence

Permitting Agencies Section 10 Section 7

Appendix G: Checklist Questions

Appendix G: Checklist Questions

Sample EIR Discussion

Sample EIR Discussion

Significant Biological ImpactsWhat are a few types of projects?

Mining/Petroleum Extraction Transportation Projects Residential and Commercial Development Large Industrial/Residential Developments Wind Power Solar Power Many, many more.

Questions?

amcintire@brandman.com