1 of 4
Post Office Box 1526 | Sacramento, CA 95812-1526
August 23, 2023
Mayor Steinberg and Sacramento City Councilmembers
Sacramento City Hall
951 I Street, Sacramento CA, 95814
Sent via email
RE: City of Sacramento Draft General Plan Update, April 28, 2023, referred to as “GPU”
Dear Mayor and City Councilmembers,
Thank you for the opportunity to comment. Our main comments concerning the GPU are as follows:
• The General Plan should include funding plans and a method of prioritizing projects based on funding availability.
• New street standards for transit, tree canopy, and walkability should be connected to the Street Classification System to ensure uniform Citywide implementation.
• The Plan should remove the Special Study Area in Natomas Basin and restore the protections to Biological Resources present in the 2015 GPU.
Please consider our complete arguments across the following pages. We look forward to engaging with you as the GPU advances, in order to help make this plan as best as it can be for the present and future residents of the City of Sacramento.
Sincerely,
Susan Herre AIA AICP
President of the ECOS Board of Directors
cc:
Mayor Steinberg, [email protected]
Lisa Kaplan, District 1, [email protected] Sean Loloee, District 2, [email protected]
Karina Talamantes, District 3, [email protected] Katie Valenzuela, District 4, [email protected] Caity Maple, District 5, [email protected] Eric Guerra, District 6, [email protected]
Rick Jennings II, District 7, [email protected] Mai Vang, District 8, [email protected]
Remi Mendoza, Sr. Planner, [email protected] Mindy Cuppy, City Clerk, [email protected]
2 of 4
1) Land Use and Placemaking
Within a half-mile of light rail stations and major bus corridors, we recommend a minimum FAR of 6.0 and a maximum FAR of 10.0. This maximum can create some consistency of urban density in the numbers of people living in an area, and in the building form -- especially the height to define a street wall and to create tree-lined promenades and plazas. Consistency of urban density makes it easier to build a sense of community and to feature important public spaces.
The centers of Washington DC and Paris, France, which level off at five to ten stories, have a strong sense of community and many places for the public to linger or gather. Cities with a few high rises in a sea of single- and two- story buildings have a harder time creating a sense of public place. Part of the equity issue in Sacramento is the lack of places where it feels good for the public to walk and gather.
To create conditions conducive to long-term home ownership in multifamily dwellings in infill areas, we recommend that residential buildings be a minimum of five stories to ensure the buildings have elevators which provide access to people of all ages and capabilities. We would like the City to encourage buildings with elevator-accessed apartments with generous balconies, as balconies make long-term living in a multifamily building possible -- they provide a get- away, a place to see the sky, to grow plants and chat with neighbors in a courtyard or street. Balconies could be required by the City for units in multifamily buildings to increase the numbers of long-term residents including families and older people.
2) Street Standards
The Plan should connect the street standards for tree canopy (ERC-A.11), transit-only lanes (M-1.24), bicycle lanes (M-1.18), and sidewalk width with the Street Classification System established in M-1.1, such that different standards for transit, walkability, and canopy correspond with different street levels. This would allow improvements to be consistently applied throughout the City.
Furthermore, we advise the City to amend the language with which the Plan presents its Parking Management Strategy. M-2.17 currently states that the Parking Management Strategy “could” eliminate City-mandated parking minimums and implement parking maximums along established transit corridors. This should be strengthened so that the General Plan commits to eliminating parking minimums Citywide and to establishing parking maximums and transportation demand management plans. In addition to being sensible policy, this will bring the General Plan into accordance with TR-2.2 of the City Climate Action and Adaptation Plan, which pledges to “eliminate parking minimums citywide, develop parking maximums and require parking management and transportation demand management plans for all areas of the City.”
3) Financing and Prioritization
We note that discussions of funding are almost entirely absent from the General Plan Update. We recommend the General Plan include funding and financing options in the body of its text, and should be upfront about expected funding gaps. As part of this, the General Plan should prioritize goals and actions according to cost-effectiveness. In the likelihood that the City is unable to secure funding for all priorities inside the General Plan, the GPU should clearly delineate which items will assuredly receive funding, in contrast to which ones represent aspirations, to be completed if funding is secured. Without such a means of funding and prioritization explored within the body of the GPU, the General Plan itself stands as an aspirational text.
3 of 4
4) Urban Heat
ERC-A.8 of the General Plan states its intention to “evaluate the feasibility of updating design guidelines, standards, and the municipal code to promote building materials and site design techniques that provide passive cooling and reduce energy demand”. This is highly important, but the Implementation Schedule marks it for completion more than 10 years into the future. ERC-A.8 should be moved forward in order for findings to be widely utilized as soon as possible, before the urban heat issue becomes much more severe. 5) Landscaping Equipment
ERC-4.6 states “the City shall explore alternatives to gas-powered landscaping equipment.” Existing CARB regulations, however, will require newly sold small off-road engines, including those in landscaping equipment, to have zero emissions starting in 2024. To have maximum influence, we encourage the City to explore ways to facilitate replacing existing conventional landscaping equipment with all-electric equipment, including by committing to using only zero emission landscaping equipment on City property.
6) Community Plans
The Central City Community Plan makes little mention of the planned Broadway and Truxel Bridges, besides both routes being suggested as High-Frequency Transit in Map CP-CC-6 of Central City Roadway Reallocations. We encourage the Plan to be forthcoming about these planned bridges.
We at ECOS support the City in exploring an annexation of County land in the Fruitridge Florin Study Area. We believe the City will be able to provide better services to the environmentally impacted, and historically disadvantaged communities therein, and through the City’s land use, zoning, and development policies, and its collaboration with SacRT, we believe the City can make real improvements in the built environment. Annexation of the Fruitridge Florin area would not require any change to the County’s Urban Services Boundary (USB). On the other hand, ECOS objects to the City’s inclusion of the Natomas Basin as a special study area, as discussed further in the next section. 7) North Natomas and Biological Resource Policies (Comments by Friends of Swainson’s Hawk, FOSH) The draft GP makes significant and unjustified changes in core City environmental policies compared to the GP
passed in 2015. It also has internal conflicts.
We request the City maintain its commitment to the:
- Existing City boundary;
- Natomas Basin Habitat Conservation Plan and the
Natomas Basin Conservancy;
- Sacramento County Urban Services Boundary and
farmland protection policies.
Furthermore, we request the special study area in Natomas Basin be removed from the General Plan. This study area has been included in the General Plan because of a
City/County MOU in 2002 which we urge the Council to
terminate. By accepting applications for urban
development, the County has violated the terms of the
agreement and it is void.
We request the Council explicitly reject the notion that Natomas Basin can accommodate future new growth. The
Natomas Basin Habitat Conservation Plan permits 17,500
acres of development within the Basin, achieving a balance of farmland, urban uses, airport buffer, flood control, and habitat protection that the City agreed to in 1997.
We request the City Council ensure that the General Plan does not authorize the expansion of the Sphere of Influence in Natomas. The staff argument for expanding the Sphere (see page 11-SSA-6) is that the County proposed
development on the city’s edge would be better integrated with City if the Sphere were expanded. We dispute this
assertion. The City should resolutely oppose urbanization on the City’s border to protect its investment in habitat and the North Natomas Community Plan, not set itself up to
negotiate with the County.
The purpose of a Sphere of Influence is to define the future boundary of urbanization.
Landowners are proposing development, not the County.
2 of 4
The County has in place several General Plan policies that protect agriculture and preserve farmland in Natomas. Four County Supervisors must make a finding of extraordinary circumstances to change the Urban Services Boundary,
which is intended to be permanent and to protect
agriculture and biological resources.
We request the maps of the Natomas Basin in the draft
General Plan be revised to accurately show the
permanently protected mitigation lands in the Basin. For your reference these mitigation lands are shown on the
map below: about 5,000 acres protected by the Natomas
Basin Conservancy and another 1,000 acres protected by
SAFCA, the County Airport and Greenbriar. For the map
below, we can provide the GIS files to the City if needed.
We request the text and maps in the draft General Plan be revised to remove the unincorporated parcels adjacent to Westlake from the North Natomas Community Plan. The
draft General Plan now shows unincorporated parcels
adjacent to Westlake as part of the North Natomas
Community Plan. (p.11-NN-1 and 2). This is not accurate since the City boundary does not include these parcels and a community plan is a part of an incorporated city. The community plan must be consistent with the General Plan and this community plan does not conform to the
boundaries of the General Plan. See GP 2040 maps LUP-1, LUP-2, LUP-3, LUP-4. A community plan must be consistent with all parts of the General Plan.
We request the Council retain the Biological Resources
(ERC2) in the 2035 General Plan, adopted in March 2015, rather than change to those in the 2040 draft General Plan.
The Biological Resources section of the draft General Plan dramatically reduces the protections contained in the
current 2015 General Plan. It reduces 16 specific policies to five. Specific policies that have been removed include
references to the Natomas Basin Habitat Conservation Plan and the Natomas Basin Conservancy. Rather than celebrate the achievement of a basinwide conservation plan, the
significant habitat lands preserved, and acknowledge the continued support of County policies to maintain the Basin largely as farmland and habitat, this General Plan draft avoids embracing the City’s prior commitment to habitat conservation.
The Natomas Basin Habitat Conservation Plan mitigates the development in the North Natomas Community impact on
habitat and threatened species and demonstrates what the City has achieved in protecting natural areas. The General Plan should acknowledge rather than obfuscate this
achievement.
In contrast to the approach of the draft General Plan to Biological Resources, the policies in Chapter 3 largely support compact growth and protection of natural areas.
Maps LUP-1,2,3,4 retain the existing city boundary. For example: LUP-1.11 Coordinate to Protect Farmland. The
City shall continue to work with Sacramento County and
other adjacent jurisdictions to implement conservation
plans, preserve farmland and protect critical habitat outside the city.
Again, we request that Natomas Basin be removed as a
Special Study area from the text on p. 3-17 and from the Map LUP-5.
www.ecosacramento.net
Post Office Box 1526 | Sacramento, CA 95812-1526
October 10, 2023
Scott Johnson, Senior Planner
City of Sacramento, Community Development Department
300 Richards Boulevard, 3rd Floor
Sacramento, CA 95811
(916) 808-5842
[email protected]
SUBJECT: ECOS Letter to City on DMEIR for Draft CAAP and Draft GPU 2040
Dear Senior Planner Scott Johnson:
Through this letter we offer comments on the Draft Master Environmental Impact Report for the Sacramento 2040 General Plan and Climate Action & Adaptation Plan, dated August 2023.
We are concerned about the sufficiency of the EIR, with a particular focus on the Natomas area. We have identified:
• unidentified impacts and significant impacts deemed less than significant; • insufficient mitigation measures;
• a project alternative that avoids impacts is not considered; • absence of a real "no project alternative";
• a need for a project alternative that excludes the Natomas Basin Special Study Area; • inaccurate and undisclosed information.
For these reasons, we believe the DMEIR should be revised and recirculated to fully disclose the impacts of the Draft 2040 GPU update and fully mitigate the impacts.
About ECOS: The mission of ECOS is to achieve regional sustainability, livable communities, environmental justice, and a healthy environment and economy for existing and future residents. ECOS strives to bring positive change to the Sacramento region by proactively working with the individual and organizational members of ECOS, neighborhood groups, and local and regional governments.
Sincerely,
Susan Herre AIA AICP Judith Lamare
President of the Board of Directors Founder, Friends of Swainson’s Hawk
2 of 11
1) Inconsistency with Natomas Basin Habitat Conservation Plan and its Implementing Agreement
The DMEIR fails to adequately consider the impacts of the 2040 GPU on the Natomas Basin Habitat Conservation Plan (NBHCP) and the Natomas Basin Conservancy (NBC) and its strategy for wildlife protection and conservation.
More specifically, DMEIR fails to consider consistency with the legally binding Implementation Agreement (IA) (Attachment 1) for the NBHCP and its associated incidental take permits from the state and federal wildlife agencies. The IA was signed by the California Department of Fish and Wildlife, the US Fish and Wildlife Service, Sutter County and the City of Sacramento in 2003 for a fifty-year term.
The DMEIR fails to disclose to the public and policymakers the City's obligation to honor and protect the NBHCP and NBC and avoid development outside the City's permit area. Specifically, Section 3.1 of the IA says "CITY agrees not to approve more than 8,050 acres of Authorized Development and to ensure that all Authorized Development is confined to CITY’s Permit Area as depicted on Exhibit B to this Agreement)." The DMEIR also ignores the requirements of the City for proposed changes in the NBHCP and IA.
• We submit that the IA establishes that compliance by the City with the IA, the associated HCP and incidental takes permits is mandatory; and that the IA requires the City to not support development in the unincorporated area of the Natomas Basin, but instead to support the conservation strategy and the mitigation lands in the Basin.
2) 2040 GPU includes fewer Biological Resources Protection Policies; the impacts of this change are not analyzed in the DMEIR.
The Draft 2040 General Plan reduces the Biological Resources protection policies in the existing 2035 General Plan (Goal ER 2.1) from seventeen to five. See Attachment 2 for the existing seventeen policies. Among others, the 2040 GPU proposes to eliminate the following policy from the existing 2035 City General Plan (adopted 2015):
The DMEIR fails to disclose the removal of most of the General Plan biological resource protection policies from the General Plan.
• Why were these policies removed from the General Plan? • For each policy removed, disclose and explain the likely environmental impact of its removal from the General Plan.
3 of 11
3) Impacts on Agriculture and Biological Resources – Unidentified and Significant Impacts Deemed Less than Significant
The DMEIR analysis of impacts of the 2040 GPU on agriculture and biological resources is limited to the Planning Area, that is, area inside the City limits, and excludes impacts in the Special Study areas, for example, in Natomas. The DMEIR thus finds impacts on agriculture and biological resources to be less than significant. Yet designating thousands of acres of farmland as a Special Study Area in the Natomas Basin would mean massive future impacts on agriculture and biological resources that the City should disclose and analyze.
• Why does the DMEIR not disclose the agricultural and biological resources in the Natomas Basin Special Study Area, or provide any analysis or information about the very significant impacts of any urbanization in the Natomas Basin on agriculture and biological resources?
The DMEIR ignores the balance of development, agriculture and habitat lands established by the NBHCP (and companion MAP HCP) as the core of the Natomas Basin conservation strategy.
"Because the effectiveness of the NBHCP’s Operating Conservation Program is based upon CITY limiting total development to 8,050 acres within the CITY’s Permit Area, and SUTTER limiting total development to 7,467 acres within SUTTER’s Permit Area, approval by either CITY or SUTTER of future urban development within the Plan Area or outside of their respective Permit Areas would constitute a significant departure from the Plan’s Operating Conservation Program."
• Why does the DMEIR not consider whether the Special Study Area designation for Natomas Basin and "Area of Concern" policy (p. 2-27) conflict with the NBHCP's Operating Conservation Program? Isn't this an unidentified impact of the GP?
• Are we correct in assuming that the Natomas Basin Special Study Area encompasses over 30,000 acres of agriculture and habitat lands?
4) Undisclosed and Inaccurate Information
The DMEIR avoids analyzing farmland and habitat impacts in the Natomas Special Study Area. It also fails to disclose that County General Plan policies protect farmland and habitat in unincorporated parts of the Natomas basin from development. The County’s Urban Services Boundary (USB) is key to the protection policy. The USB excludes all of the County’s unincorporated area in the Natomas Basin except for the Airport and Metro AirPark.
The County General Plan, p. 20, defines the Urban Services Boundary as follows:
"The Urban Service Boundary (USB) (see Figure 1) indicates the ultimate boundary of the urban area in the unincorporated County." "The USB allows for the permanent preservation of agriculture and rangelands, critical habitat and natural resources. . . "
4 of 11
LU-127. The County shall not expand the Urban Service Boundary unless:
• There is inadequate vacant land within the USB to accommodate the projected 25 year demand for urban uses; and
• The proposal calling for such expansion can satisfy the requirements of a master water plan as contained in the Conservation Element; and • The proposal calling for such expansion can satisfy the requirements of the Sacramento County Air Quality Attainment Plan; and
• The area of expansion does not incorporate open space areas for which previously secured open space easements would need to be relinquished; and • The area of expansion does not include the development of important natural resource areas, aquifer recharge lands or prime agricultural lands; • The area of expansion does not preclude implementation of a Sacramento County- adopted Habitat Conservation Plan;
OR
• The Board approves such expansion by a 4/5ths vote based upon on finding that the expansion would provide extraordinary environmental, social or economic benefits and opportunities to the County.
The DMEIR asserts that two major landowner-proposed developments in Natomas Basin are in process and the City should get engaged with them. In fact, these proposed developments cannot be approved by the County without extraordinary findings approving a change in the Urban Services Boundary and potentially a finding of extraordinary significance for the projects and the requirement for approval by four of the five supervisors. (County General Plan LU127, p.144) The proposed developments must also obtain permits from US Fish and Wildlife Service and California Department of Fish and Wildlife.
Refer to Figure 1 below for a depiction of the Urban Services Boundary. This map was prepared by ECOS/Habitat 2020 volunteers to educate EIR preparers about the complexities of Natomas Basin.
Figure 1 also shows all of the existing mitigation land (approximately 5,000 acres in the Natomas Basin Conservancy and another 1,000 acres of other mitigation lands permanently protected in the Basin.) It also shows the permit areas where development can occur in Sacramento and Sutter Counties, as well as the proposed projects outside the permit area that conflict with the conservation strategy of the NBHCP. The two proposed projects referred to in the GP 2040 DMEIR, Grand Park and Upper Westside, directly impact (abut or surround) mitigation properties acquired by the NBC to mitigate for the development of the City's North Natomas Community Plan area.
See also Figure 2 below, Exhibit B from the IA, showing which lands in the Natomas Basin are entitled to develop.
See also Figure 3 below, Land Use Agencies 'Permit areas'" from the NBHCP.
5 of 11
5) Unidentified Impacts of Inconsistent, Conflicting Land Use Policies; Lack of Analysis and Mitigation.
The Draft 2040 GP Land Use Policies are in conflict and the DMEIR is consequently internally inconsistent.
LUP-1 establishes a compact growth pattern but the Special Study Areas total approximately 47,610 acres (74 square miles), approximately 74% of which lies outside the existing city limits and the SOI (most of which is in Natomas). They are referred to as possible annexation areas (p. 2-22). (The DMEIR does not disclose the acreage in the Natomas Basin Special Study Area.)
In 2-27, the DMEIR states that a GP strategy for sustainable and responsible growth is to:
"Designate the Natomas Basin Study Area (NBSA) as an Area of Concern. The City aims to better manage and control the future of the NBSA by balancing potential growth with the protection of agriculture and open space. To help ensure that County-proposed development at the city’s edge is better integrated with the city, the Area of Concern designation will improve the City’s ability to provide planning and public services, including police, fire, and park services; water, wastewater, and stormwater; flood risk; traffic mitigation; and open space, habitat, and agriculture preservation. Any future SOI amendments for the NBSA would be considered by the Sacramento Local Agency Formation Commission (LAFCo) and used to delineate probable future city boundaries and service areas. The designation of the SOI is intended to help a city plan for efficient provision of services, discourage urban sprawl, and protect open space and agricultural lands. The County is currently processing two large specific plans (Grand Park and Upper Westside) which call for development of lands in the NBSA and are not currently within the city’s SOI. Providing input and analysis of these development plans and influencing their outcome will help to lessen potential adverse effects to the City and its residents."
Based upon this section, it appears that the City indeed is considering providing urban services to an area they have promised state and federal governments that they would not do because this is outside the permit area of the NBHCP.
The inclusion of thousands of acres of farmland as a Natomas Basin Study Area, and designating it an Area of Concern, contradicts the City's land use policies, a conflict that should have been analyzed in the DMEIR.
6 of 11
6) Growth Inducement Impacts Inadequately Analyzed
The City's designation of the Natomas Basin as a Special Study Area (SSA) is growth-inducing. The inclusion of the SSA has growth inducing impacts because it indicates to landowners that the City would consider annexation and urban development of farmland in the Natomas Basin. Landowner willingness to sell land for permanent habitat protection is reduced and expectations of market value are dramatically changed, changing the economics of permanent habitat and farmland protection. The DMEIR does not address this impact of the 2040 GPU update and does not analyze the impact of placing thousands of acres of farmland and habitat in a General Plan Special Study Area and "Area of Concern" for LAFCo.
The DMEIR thus leads landowners to believe that urbanization of their properties in Natomas outside the City or Sutter's permit area is feasible and that the City will cooperate to assist them. It is especially confusing in the absence in the DMEIR of full disclosure of the terms and conditions imposed on the City by the NBHCP and its Implementation Agreement. The DMEIR errs in not analyzing the impacts of the Special Study Area designation in the General Plan as growth inducing.
It is concerning that the DMEIR claims on p. 5-4:
"Because it is assumed that the impacts are captured in the analysis of environmental impacts (see Chapter 4 of this Master EIR), CEQA does not require separate mitigation for growth inducement. Furthermore, the CEQA Guidelines require that an EIR detail how a project could be growth inducing and to describe project characteristics that may encourage and facilitate other activities that could significantly affect the environment."
In fact, the DMEIR avoids analysis of environmental impacts in the NBSSA. They are not included in Chapter 4, and therefore, there should be a separate analysis and mitigation for growth inducement in the SSA. This is an internal conflict within the DMEIR.
We appreciate the careful discussion of growth inducement and CEQA (5.3.3 Impacts of Induced Growth), but we must ask:
• Why is the City including thousands of acres of agricultural land in Natomas as a Special Study Area in its General Plan if not to indicate that it anticipates annexation. • We request the City delete this Special Study Area in Natomas and remove the growth inducement impact of the 2040 GPU.
7) Cumulative Impacts Mitigation
The DMEIR claims that there is no feasible mitigation for cumulative impacts (4.4-23) on biological resources.
• We suggest that feasible mitigation includes removal of Natomas Basin Special Study Area from the General Plan.
• We suggest the City include standards to prohibit greenfield development such as are used in the Sacramento County General Plan, the Urban Services Boundary and related policies. 7 of 11
8) Heat Island Impacts Inadequately Analyzed and Not Fully Mitigated
The DMEIR in 4.3 Air Quality, Goal ERC-8: Improved resilience to the effects of heat, sets forth the City’s intention to reduce heat islands and prescribes various legal and design steps that can promote passive cooling and reduced energy demand toward that goal.
This recognition of heat islands is welcome but undermined by the Plan’s Implementation Schedule, which allows more than 10 years to pass before the study is completed and the necessary building materials and site designs are modified. The extended period prescribed by the Implementation Schedule will allow existing heat islands to continue heating the atmosphere and the construction of more heat islands.
• We suggest the schedule be accelerated and the study completed in two years.
Scientific American cites studies demonstrating that the impact of urban heat islands will be one half to as much as twice the warming identified by climate change by the year 2050. That is only 17 years beyond the 2033 target date set by the General Plan.
The US EPA tells us that heat islands create the need for increased use of air conditioning, elevated levels of greenhouse gases and dangerous pollutants, compromised health, and impaired water quality. These current impacts are not only dangerous, but they impact low-income communities much more severely than other communities. Heat death is a fact in Sacramento, and many residents are far more susceptible than others. Delaying efforts to reduce heat islands in Sacramento is a serious health issue.
The DMEIR should quantify the health impacts of delaying measures to address urban heat islands throughout the various neighborhoods in Sacramento, and on the unhoused. The DMEIR should require a measurement of heat islands and their health impacts on housed and unhoused residents by Council district before December 31, 2024, and require annual updates on performance of elimination and mitigation of heat islands.
8 of 11
9) Air Quality Impact – City Role Needed
The DMEIR notes Sacramento’s unhealthy air quality and mentions development projects on the City’s border that could make that worse – specifically, Upper Westside, Grand Park, and South Airport Industrial. These projects are likely to increase emissions of toxic air pollutants (TACs such as diesel particulate matter) and criteria air pollutants and their precursors (such as ozone and fine particulate matter) for which the City is in severe non-attainment of health-based air quality standards. This would be true, even with mitigations that may be required by the SMAQMD.
• We suggest the DMEIR should discuss ways that the City might influence proposed development that would minimize these emissions.
Without appropriate mitigations, the 2040 General Plan could have a cumulatively considerable contribution and cumulative TAC and criteria air quality impacts could be significant.
• We suggest the DMEIR include discussion of the risks if federal air quality standards are not met, such as reduction in federal transportation funding.
10) Alternatives Analysis Insufficient
A project alternative that avoids impacts is not considered.
• We suggest the DMEIR’s alternatives analysis should include an alternative that excludes the Natomas Basin Special Study Area. An alternative excluding this study area would be consistent with the City's land use policies and would reduce the potential impact of the plan on agricultural and biological resources to less than significant. It would also improve consistency with regional transportation and air quality plans.
The DEIR defines the "no project alternative" as an alternative with no General Plan Update.
• We suggest the DMEIR include a real “no project” alternative since not updating the General Plan is not legal under state planning law. The “No Project” alternative required by CEQA was promised in the City’s earlier Notice of Preparation, and the omission should be remedied.
9 of 11
Figure 1 Urban Services Boundary and more
10 of 11
Figure 2 Exhibit B from the Implementing Agreement
11 of 11
Figure 3 Land Use Agencies “Permit Areas”
IMPLEMENTATION AGREEMENT FOR THE
NATOMAS BASIN HABITAT CONSERVATION PLAN
wc-83845
TABLE OF CONTENTS
Page
1 Recitals and Purposes 1 .......................................................................................................
1.1 Purpose 1 .................................................................................................................
1.2 Parties’ Intent 1 .........................................................................................................
1.3 Coordination ..........................................................................................................1
1.4 Habitat ...................................................................................................................1
1.5 Mitigation ...............................................................................................................2
1.6 Integrity and Viability of NBHCP ............................................................................2
1.7 Reliance.................................................................................................................2
1.8 Local Land Use Authority.......................................................................................2
1.9 City, Sutter and TNBC as Permittees ....................................................................2
1.10 USFWS Authorities ................................................................................................2
1.11 CDFG Authorities...................................................................................................2 2 Definitions ...................................................................................................................3
3. Obligations of the Parties ..................................................................................................3
3.1 City and Sutter .......................................................................................................3
3.1.1 Limitation on Total Development in Natomas Basin and Individual Permit Areas ..............................................................................................3
3.1.2 Exclusion of Development from Swainson’s Hawk Zone...........................4
3.1.3 Timing of Mitigation....................................................................................4
3.1.4 Baseline Map .............................................................................................4
3.1.5 Restriction on Urban Development/Mitigation Alternatives........................4
3.1.6 Determination of Compliance.....................................................................4
3.1.7 Urban Development Permit Conditions......................................................4
3.1.8 Full Compliance with the NBHCP ..............................................................5
3.1.9 Transfer of Mitigation Fees ........................................................................5
3.1.10 Enforcement...............................................................................................5
3.1.11 Relationship of TNBC to City and Sutter....................................................5
3.1.12 Certification of Urban Development Permittee...........................................6
3.1.13 Public Works Projects ................................................................................6
3.1.14 Assistance ..................................................................................................6
3.1.15 Annual Report of Authorized Development................................................6
3.1.16 Adaptive Management ...............................................................................6
3.1.17 Overall Program Review/Independent Mid-Point Reviews ........................6
3.1.18 City and Sutter Liaison...............................................................................6
3.1.19 Implementation of other NBHCP Components ..........................................6
3.2 The Natomas Basin Conservancy .........................................................................7
3.2.1 Establish Mitigation ....................................................................................7
3.2.2 Acceptance of Mitigation Fees...................................................................7
3.2.3 TNBC Land Management; Site Specific Management
Plan/NBHCP Biological Monitoring Plans/Surveys
....................................7
3.2.4 Implementation Annual Report ..................................................................7
3.2.5 Implementation Annual Meeting ................................................................7
3.2.6 Funding ......................................................................................................7
3.2.7 Budgeting and Planning.............................................................................7
3.2.8 Successor ..................................................................................................8 wc-83845
3.2.9 Transfer to CDFG ......................................................................................8
3.2.10 Operation in Perpetuity ..............................................................................8
3.2.11 Conflicts of Interest ....................................................................................8
3.2.12 TNBC Proceedings Open to Public............................................................8
3.2.13 Implementation of Other NBHCP Components .........................................8
3.3 USFWS..................................................................................................................8
3.3.1 Oversight....................................................................................................8
3.3.2 Technical Assistance .................................................................................9
3.3.3 Newly Listed Uncovered Species ..............................................................9
3.3.4 Effective Date and Issuance of Section 10(a) Permits...............................9
3.3.5 Permit Findings ..........................................................................................9
3.4 CDFG ...................................................................................................................9
3.4.1 Oversight..................................................................................................10
3.4.2 Assistance ................................................................................................10
3.4.3 New Species ............................................................................................10
3.4.4 CDFG Land Management........................................................................10
3.4.5 Effective Date and Issuance of Section 2081(b) Permit ..........................10
3.4.6 Section 2081(b) Permit Findings..............................................................10 4 Mitigation .................................................................................................................11
4.1 Mitigation Lands...................................................................................................11
4.2 Respective Permit Areas .....................................................................................11
4.3 Existing Development Exempt.............................................................................11
4.4 Mitigati on Ratio....................................................................................................11
4.5 Calculation of Mitigation Requirement for Authorized Development Projects................................................................................................................11
4.6 Satisfaction of Mitigation Requirement ................................................................12
4.7 Jurisdictional Wetlands........................................................................................13
4.8 Rivers, Streams or Lakes ....................................................................................13
4.9 Funding for Operating Conservation Program.....................................................13
4.9.1 Mitigation Fees.........................................................................................13
4.9.2 Adjustments to the Mitigation Fee for Purposes of Funding the Operating Conservation Program Other than Changes to the Managed Marsh Component ...................................................................13
4.9.3 Adjustments to the Mitigation Fee for Purposes of Funding the Changes to the Managed Marsh Component ..........................................14
4.9.4 Fee Adjustments for General Inflation .....................................................15
4.9.5 Failure to Adjust Mitigation Fees..............................................................15 5 Mitigation Lands ..............................................................................................................15
5.1 Location of Mitigation Lands ................................................................................15
5.2 Setbacks and Buffers...........................................................................................15
5.3 In -Basin Acquisition .............................................................................................15
5.4 Coordinating Mitigati on Land Acquisition with Agency Acquisitions ....................15
5.5 Timing of Mitigation Land Acquisition ..................................................................16
5.6 Acquisition of 400 and 2,500-Acre Blocks ...........................................................16
5.7 Accounting for Mitigation Lands...........................................................................16
5.7.1 Managed Marsh .......................................................................................16
5.7.2 Rice Land.................................................................................................16
5.7.3 Uplands....................................................................................................16
5.7.4 Proportion of Mitigation Lands as Marsh .................................................16
5.8 Conservation Measures.......................................................................................17 iii
wc-83845
6 Assurances .................................................................................................................17
6.1 USFWS................................................................................................................17
6.1.1 No Surprises Assurances ........................................................................17
6.1.2 Migratory Bird Treaty Act (MBTA)............................................................18
6.1.3 Beneficial Effects with Respect to Future Listings ...................................19
6.1.4 Critical Habitat..........................................................................................19
6.1.5 ESA Listing of Currently Unlisted Covered Species ................................19
6.2 CDFG .................................................................................................................19
6.2.1 CESA Compliance ...................................................................................19
6.2.2 Adequate Mitigation under CESA ............................................................19
6.2.3 Assurances ..............................................................................................19
6.2.4 CESA Listing of Currently Unlisted Covered Species..............................20
6.2.5 Changed Conditions ................................................................................20
6.3 Limits on Future Revisions to NBHCP.................................................................20
6.4 Reservation of Rights Re: Subsequent Listing of Species ..................................21
6.5 Land Use Authority ..............................................................................................21
6.6 No Liability ...........................................................................................................21 7 Amendments and Remedies ...........................................................................................21
7.1 Revisions and Amendments to the NBHCP ........................................................21
7.2 Amendments to Agreement .................................................................................21
7.3 Land Use Changes..............................................................................................21
7.4 Remedies in General...........................................................................................22
7.5 Third Party Enforcement......................................................................................22
7.6 Suspension or Revocation...................................................................................22
7.6.1 Suspension or Revocation by USFWS ....................................................22
7.6.2 Suspension or Revocation by CDFG .......................................................22
7.6.3 Status of Urban Development Permittees after Suspension or Revocation ...............................................................................................22
7.6.4 No Further Approvals by Permittees........................................................22
7.6.5 Severability ..............................................................................................23 8 Miscellaneous .................................................................................................................23
8.1 Term of Agreement..............................................................................................23
8.2 Termination..........................................................................................................23
8.2.1 Termination by Mutual Consent ...............................................................23
8.2.2 Termination by USFWS or CDFG............................................................23
8.2.3 Termination by TNBC ..............................................................................23
8.2.4 Effect of Termination................................................................................23
8.2.5 Status of Mitigation Lands Upon Termination ..........................................24
8.3 Binding Effect.......................................................................................................24
8.4 Notices.................................................................................................................24
8.5 Captions...............................................................................................................25
8.6 Counterparts........................................................................................................25
8.7 Governing Law.....................................................................................................25
8.8 Complete Agreement...........................................................................................25
8.9 Federal Section 7 Consultations..........................................................................25
8.10 Conflict with NBHCP............................................................................................26
8.11 Other Permittees..................................................................................................26
8.12 Federal Appropriations ........................................................................................26
8.13 State Appropriations ............................................................................................26
8.14 References to Regulations ..................................................................................26 iv
wc-83845
8.15 Applicable Laws...................................................................................................26
8.16 No Partnership.....................................................................................................26
8.17 Elected Officials Not to Benefit ............................................................................26 v
wc-83845
LIST OF EXHIBITS
Exhibit A - Definitions
Exhibit B - CITY’s Baseline Map
Exhibit C - SUTTER’s Baseline Map
Exhibit D - List of Covered Species in Permit Area
vi
wc-83845
IMPLEMENTATION AGREEMENT FOR THE
NATOMAS BASIN HABITAT CONSERVATION PLAN
THIS IMPLEMENTATION AGREEMENT FOR THE NATOMAS BASIN HABITAT CONSERVATION PLAN is entered into as of the _____ day of _______________, 2003 by and among the UNITED STATES FISH AND WILDLIFE SERVICE, an agency of the Department of the Interior of the United States of America (“USFWS”), the CALIFORNIA DEPARTMENT OF FISH AND GAME, a subdivision of the Resources Agency of the State of California (“CDFG”), the CITY OF SACRAMENTO, a chartered city (“CITY”), the COUNTY OF SUTTER (“SUTTER”), a political subdivision of the State of California, and The Natomas Basin Conservancy, Inc. (“TNBC”, or “Conservancy”), a California nonprofit public benefit corporation, (hereafter collectively referred to as “Parties”). The CITY, SUTTER and TNBC are hereafter also referred to collectively as “Permittees” and each is individually referred to as “Permittee.”
1. RECITALS AND PURPOSES
The Parties have entered into this Agreement in consideration of the following facts and assumptions, intentions and expectations:
1.1 Purpose. This Implementation Agreement (“Agreement”) describes the mechanisms for implementation of the Natomas Basin Habitat Conservation Plan (“NBHCP” or “Plan”) a cooperative federal, state and local program for the conservation of those plant and animal species listed on Exhibit D (collectively the “Covered Species”) and their habitats in the Natomas Basin.
The purposes of this Agreement are: a) to ensure the implementation of each of the terms of the NBHCP; b) to describe remedies and recourse should any party fail to perform its obligations as set forth in this agreement; and c) to provide assurances to the Permittees that as long as the terms of the NBHCP are properly implemented, no additional mitigation will be required of them except as provided for in this Agreement or required by law. This Agreement also establishes terms and conditions that support issuance of Permits by the USFWS under Section 10(a)(1)(B) of the Endangered Species Act (“ESA”) and CDFG under Section 2081 of the California Fish and Game Code to allow the taking of the Covered Species within the Permit Area a) by the CITY and SUTTER, and third persons under the CITY’s and SUTTER’s direct control, incidental to Authorized Development and b) by TNBC, and third persons under TNBC’s direct control, incidental to management activities for a period of fifty (50) years.
1.2 Parties’ Intent. The intent of the Parties, in addition to the purposes set forth above, is that a comprehensive conservation program be established, and be implemented under the auspices of TNBC for the conservation of the Covered Species and their habitats, to provide an opportunity for individual Authorized Development project proponents to obtain incidental take authorization, through CITY’s and SUTTER’s Take Permits, for a broad array of Covered Species under the ESA and CESA including both currently listed species and species that may be listed in the future; to minimize the review of individual projects by the USFWS and CDFG; and to standardize take mitigation and onsite take avoidance and minimization measures for projec ts
covered by the NBHCP.
1.3 Coordination. The NBHCP will be implemented by the Parties through execution of this Agreement, subject to and in accordance with the Permits.
1.4 Habitat. The Covered Species may use or inhabit portions of the Natomas Basin area which is situated northeasterly of the confluence of the American River and Sacramento River.
Consequently, Planned Development of 17,500 acres, including CITY and SUTTER Authorized Development and Metro Air Park’s 1,983 acres of authorized development, related infrastructure, and government public works planned in this area over the next fifty (50) years may result in a loss 1 wc-83845
of habitat and takings of the Covered Species, incidental to the normal course of this Planned Development.
1.5 Mitigation. Implementation of the NBHCP through this Agreement is intended to avoid, minimize and mitigate to the maximum extent practicable, and minimize and fully mitigate, the individual and cumulative impacts of take of Covered Species resulting from Authorized Development within the CITY’s and SUTTER’s respective Permit Areas in the Natomas Basin. All required mitigation is specified in the NBHCP.
1.6 Integrity and Viability of NBHCP. While the NBHCP was developed as a comprehensive multi-species habitat conservation plan to avoid, minimize and mitigate for the expected loss of habitat values and incidental take of the Covered Species that could result from urban development, operation and maintenance of irrigation and drainage systems, and certain activities associated with TNBC management of its system of reserves within the Natomas Basin when it is fully implemented, the biological viability of the NBHCP is not compromised by the failure of other Potential Permittees to participate in the NBHCP and execute this Agreement. The mitigation strategies provided in the NBHCP are designed to allow for separate and independent implementation of NBHCP mitigation measures by CITY, SUTTER or other Potential Permittees, and may be adjusted under the terms of the Plan if fewer than all land use jurisdictions or other Potential Permittees participate, so that the NBHCP is viable and will minimize and mitigate the impacts associated with take of Covered Species resulting from Covered Activities carried out within the Natomas Basin by each Permittee, even if the Plan is not implemented by other Potential Permittees.
1.7 Reliance. In reliance upon this Agreement, CITY and SUTTER are making long range plans and financial investments in public infrastructure improvements necessary for the preservation of the public health, safety and welfare. Without the assurances identified in this Agreement, they would not enter into, support or approve any such plans or financial commitments.
1.8 Local Land Use Authority. The parties to this Agreement intend that nothing in the NBHCP or in this Agreement shall be interpreted to mean or operate in a manner that expressly or impliedly diminishes or restricts the local land use decision making authority of CITY or SUTTER, provided that the Parties acknowledge that should either CITY or SUTTER exercises its respective land use authority in a manner that conflicts with the terms of the NBHCP, this Agreement or the Permits, the Service and/or CDFG may suspend or revoke CITY’s or SUTTER’s Permits pursuant to Section 7.4 of this Agreement and applicable laws and regulations.
1.9 CITY, SUTTER and TNBC as Permittees. This Agreement also establishes the conditions under which the incidental take granted to CITY and SUTTER under their respective Permits will apply to landowners and developers within their respective Permit Areas in the Natomas Basin as of the Effective Date (as depicted on Exhibits B and C attached hereto and incorporated herein) in order to allow the taking of the Covered Species incidental to Authorized Development. TNBC’s Permit will authorize incidental take of the Covered Species by TNBC anywhere within its Permit Area with respect to the management and other activities and responsibilities that TNBC or third parties under its control assumes on behalf of CITY and SUTTER under the NBHCP.
1.10 USFWS Authorities. USFWS is authorized to enter into this Agreement pursuant to the ESA (16 U.S.C. 1531 et seq.), the United States Fish and Wildlife Coordination Act (16 U.S.C. 661-666c) and the Fish and Wildlife Act of 1956 (16 U.S.C. 742(f) et seq.).
1.11 CDFG Authorities. CDFG is authorized to enter into this Agreement pursuant to CESA sections 2080 and 2081.
2 wc-83845
AGREEMENT
FOR AND IN CONSIDERATION of the recitals set forth above, which are incorporated by reference herein, the covenants set forth herein, and other considerations, the receipt and adequacy of which is hereby acknowledged, the Parties hereto agree as follows:
2 DEFINITIONS
Terms used in this Agreement with reference to the ESA shall have the same meaning as those same terms have under the ESA, or in regulations adopted by the USFWS, and terms used in this Agreement with reference to CESA, shall have the same meaning as those same terms have under CESA, or regulations adopted by CDFG. Capitalized terms used in this Agreement shall have the defined meanings specified in the NBHCP as attached hereto as Exhibit A and incorporated herein into this Agreement. Where additional terms are used in this Agreement, definitions are included within the applicable text. Any amendments to the definitions contained in this Agreement shall be deemed automatically to be amendments to the definitions contained in the NBHCP.
3 OBLIGATIONS OF THE PARTIES
3.1 CITY and SUTTER.
3.1.1 Limitation on Total Development in Natomas Basin and Individual Permit Areas. The NBHCP anticipates and analyzes a total of 17,500 acres of Planned Development in the Natomas Basin, 15,517 acres of which constitutes Authorized Development within CITY and SUTTER. (An additional 1,983 acres of development is allocated to the Metro Air Park project in Sacramento County under the Metro Air Park Habitat Conservation Plan and is analyzed within the NBHCP.) CITY agrees not to approve more than 8,050 acres of Authorized De velopment and to ensure that all Authorized Development is confined to CITY’s Permit Area as depicted on Exhibit B to this Agreement). SUTTER agrees not to approve more than 7,467 acres of Authorized Development and to ensure that all Authorized Development is confined to SUTTER’s Permit Area as depicted on Exhibit C to this Agreement). The Parties further agree:
(a) Because the effectiveness of the NBHCP’s Operating
Conservation Program is based upon CITY limiting total development to 8,050 acres within the CITY’s Permit Area, and SUTTER limiting total development to 7,467 acres within SUTTER’s Permit Area, approval by either CITY or SUTTER of future urban development within the Plan Area or outside of their respective Permit Areas would constitute a significant departure from the Plan’s Operating Conservation Program. Thus, CITY and SUTTER further agree that in the event this future urban development should occur, prior to approval of any related rezoning or prezoning, such future urban development shall trigger a reevaluation of the Plan and Permits, a new effects analysis, potential amendments and/or revisions to the Plan and Permits, a separate conservation strategy and issuance of Incidental Take Permits to the permittee for that additional development, and/or possible suspension or revocation of CITY’s or SUTTER’s Permits in the event the CITY or SUTTER violate such limitations.
(b) For purposes of the NBHCP and this Agreement, CITY agrees that although the West Lakeside Annexation area is proposed by the landowners to be annexed to the CITY, this area currently is located within Sacramento County and is outside of the County’s Urban Services Boundary and the City’s Sphere of Influence, and it is not included in the 8,050 acres of Authorized Development or within the CITY’s Permit Area. Thus, CITY agrees that in the event this annexation occurs, it shall, prior to approval of any rezoning or prezoning associated with such annexation, trigger a reevaluation of the Plan, a new effects analysis, potential amendments and/or revisions to the Plan and Permits, a separate conservation strategy and issuance of Incidental Take Permits to the City for that additional urban development, and/or possible 3 wc-83845
suspension or revocation of CITY’s Permit in the event the CITY violates such limitations without completing such reevaluation, amendment, or revision or new conservation strategy for that additional urban development.
3.1.2 EXCLUSION OF DEVELOPMENT FROM SWAINSON’s HAWK ZONE. With the exception of 252 acres included as Authorized Development by CITY in the NBHCP, the Parties agree that the CITY’s and SUTTER’s Permit Areas shall exclude a one mile wide strip of land adjacent to the Sacramento River within their respective jurisdictions known as the Swainson’s Hawk Zone (SHZ). The Parties further agree as follows:
(a) CITY and SUTTER shall not approve any future urban
development within their respective portions of the Swainson’s Hawk Zone beyond the 252 acres of Authorized Development identified by CITY in the NBHCP. (b) Within One Hundred and Eighty (180) days of the Effective Date, SUTTER shall initiate a General Plan Amendment to remove all land within SUTTER’s portion of the Swainson’s Hawk Zone from the Industrial/Commercial Reserve designation in the Sutte r County General Plan and to redesignate such land for agricultural uses. (c) Because the effectiveness of the NBHCP to adequately minimize and mitigate the effects of take of the Covered Species depends, in part, on the exclusion of urban development from both the CITY and SUTTER’s portions of the Swainson’s Hawk Zone, approval by either CITY or SUTTER of future urban development in the Swainson’s Hawk Zone, except as otherwise explicitly allowed under the NBHCP, would constitute a significant departure from the Plan and would trigger a reevaluation of the Plan and Permits, a new effects analysis, potential amendments to the Plan and/or Permits, a separate conservation strategy and issuance of Incidental Take Permits to the permittee for that additional development, and/or possible suspension or revocation of CITY or SUTTER’s Permits in the event CITY or SUTTER violate such restrictions.
3.1.3 Timing of Mitigation. CITY and SUTTER agree to comply with the NBHCP Chapter VI requirements applicable to the timing of acquisition of Mitigation Lands, including, but not limited to, the requirement to maintain a 200-acre cushion of Mitigation Lands, and other timing restrictions on approval of Authorized Development as provided in Sections 4 and 5 of this Agreement and Chapter VI of the NBHCP.
3.1.4 Baseline Map. CITY and SUTTER have prepared, and USFWS and CDFG have approved, the Baseline Maps set forth in Exhibits B and C, attached hereto and incorporated herein by this reference, which depict: (1) those land areas within their respective Permit Areas which are designated as “Exempt Area-Existing Development” and therefore not subject to the NBHCP, the Permits, or this Agreement; (2) those land areas designated as “Development Subject to 1997 HCP,” within their respective Permit Areas for which Authorized Development projects have been approved between 1997 and 2002 and have been developed in compliance with the Mitigation Requirements of the NBHCP in effect in 1997; and (3) those undeveloped land areas designated as “Development Subject to 2002 HCP,” within the Permit Areas which will be subject to the Mitigation Requirement of the NBHCP.
3.1.5 Restriction on Urban Development/Mitigation Alternatives. CITY and SUTTER shall not issue any Urban Development Permit for any Authorized Development project on a parcel of land in their respective Permit Areas, outside of those areas depicted as “Exempt Area- Existing Development” on the Baseline Map, unless the Authorized Development project proponent has satisfied the Mitigation Requirement specified in Chapters IV through VI of the NBHCP.
3.1.6 Determination of Compliance. CITY and SUTTER shall ensure that an Authorized Development project proponent has complied with the Mitigation Requirements of Chapters IV through VI of the NBHCP prior to issuing an Urban Development Permit for the Authorized Development project.
4 wc-83845
3.1.7 Urban Development Permit Conditions. CITY and SUTTER shall include in any Urban Development Permit the on-site Take avoidance, minimization and mitigation measures specified in Chapter V of the NBHCP (the “Conservation Measures”) to reduce or eliminate to the extent feasible, the direct and indirect impacts of Authorized Development on the Covered Species and shall include in such Urban Development Permit notice of the need to comply with the requirements of other agencies applicable to the project.
3.1.8 Full Compliance with the NBHCP. The Parties agree that for purposes of CITY’s and SUTTER’s determination that an Urban Development Permittee is in full compliance with the NBHCP, the Urban Development Permittee must: (1) comply with the Mitigation Requirement, (2) implement the Conservation Measures including any such measures that are required to be conducted prior to commencement of grading and/or construction (e.g., pre- construction surveys, species avoidance measures, allowing USFWS or TNBC to conduct transplantation and relocation of Covered Species, etc.), and (3) implement any measures specified in or provided for in Chapter V of the NBHCP which are required to be implemented after commencement of grading and/or construction, including but not limited to, pre- construction surveys, retention of Swainson’s Hawk nesting trees, and elderberry shrub preservation.
3.1.9 Transfer of Mitigation Fees. CITY and SUTTER shall promptly transfer all Mitigation Fees collected on account of Authorized Development to TNBC in accordance with the provisions of Chapter VI of the NBHCP.
3.1.10 Enforcement. CITY and SUTTER shall comply with the NBHCP, this Agreement and the Permits and, following their applicable land use permit enforcement procedures and practices, shall take all necessary and appropriate actions to enforce the terms of the Section 10(a)(1)(B) Permit, the Section 2081 Permit, the NBHCP, and this Agreement as to themselves and all third persons subject to their jurisdiction or control, including Urban Development Permittees, that are subject to the requirements established by the NBHCP, the Permits and this Agreement, specifically including the urban permitting and approval requirements set forth in this Section 3.
Provided CITY and SUTTER take actions within their respective authorities to enforce compliance with the terms of the NBHCP, this Agreement and the Permits, a violation of the Permits by such third persons shall not be a basis to suspend or revoke the CITY or SUTTER Permits, unless USFWS or CDFG determine that continuation of the Permits would appreciably reduce the likelihood of the survival and recovery of a Covered Species in the wild or USFWS or CDFG determine that the violation renders CITY or SUTTER unable to implement successfully the NBHCP.
3.1.11 Relationship of TNBC to CITY and SUTTER. To comply with the requirements of the NBHCP, CITY and SUTTER have chosen to implement their Mitigation Requirement and other obligations under the NBHCP, including their reporting and monitoring obligations, in part, through the selection of TNBC as the Plan Operator. The Parties further agree:
(a) In the event that the Service determines pursuant to Section
7.6.1 of this Agreement, or CDFG determines pursuant to Section 7.6.2 that TNBC has violated the terms of the NBHCP, the Permits or this Agreement, such violation shall be considered a failure by CITY and SUTTER to implement their obligations of the Operating Conservation Program under the NBHCP. Provided, however, that if the violation by TNBC related to MAP mitigation acquisition or management requirements, or to other violations resulting from and solely pertaining to a violation of the MAP HCP, the provisions of this subsection shall not apply and neither City nor Sutter shall be considered to have failed to implement their obligations of the Operating Conservation Program under the NBHCP.
(b) Notwithstanding the foregoing in the event USFWS or CDFG make the determination set forth in Section 3.1.11(a), CITY’s and SUTTER’s Permits shall not be revoked or suspended, if CITY and/or SUTTER implement corrective measures, within the period 5 wc-83845
specified by the USFWS and/or CDFG, to remedy TNBC’s violation which may include, but shall not be limited to (1) replacing TNBC with another conservation entity qualified to serve as a Plan Operator, (2) transferring the Mitigation Lands to CDFG in accordance with Section 3.2.12 of this Agreement, (3) implementation by TNBC of measures specified by the USFWS and/or CDFG as necessary to remediate the violation unless USFWS or CDFG determine that continuation of the Permits would appreciably reduce the likelihood of the survival and recovery of a Covered Species in the wild or USFWS or CDFG determine that the violation renders CITY or SUTTER unable to implement successfully the NBHCP; or (4) implementation by CITY and/or SUTTER of measures necessary to remediate the violation.
(c) Should the USFWS or CDFG determine that CITY or SUTTER has violated their separate obligations under the NBHCP, the Permits or this Agreement, such violation shall not be attributed to TNBC nor shall TNBC’s Permits be affected, so long as TNBC continues to properly implement its obligations under the NBHCP with respect to the Mitigation Lands, including its obligations as the Plan Operator.
3.1.12 Certification of Urban Development Permittee. Urban Development Permits (i.e., the grading permit or notice to proceed) issued by CITY and SUTTER shall constitute a certification to the Urban Development Permittee that the Urban Development Permittee has complied with the Mitigation Requirements of the NBHCP and will be allowed to construct, maintain and operate a public or private project which may result in the Incidental Take of the Covered Species consistent with the conditions in the Permits and the Urban Development Permit, on the parcels for which the Urban Development Permit was issued. The issuance of such certifications shall be considered ministerial actions for the purposes of the laws of the State of California.
3.1.13 Public Works Projects. CITY and SUTTER shall apply the Mitigation Requirement and Conservation Measures set forth in this Section and in Chapters IV through VI of the NBHCP to all public works projects in their respective Permit Areas.
3.1.14 Assistance. CITY and SUTTER shall provide staff members to serve on the NBHCP Technical Advisory Committee.
3.1.15 Annual Report of Authorized Development. CITY and SUTTER shall each implement the Annual Report requirements described at Chapter VI of the NBHCP. In addition, at any other time during the Permit terms, CITY and SUTTER, at the request of USFWS or CDFG, shall provide within thirty (30) days, to the Wildlife Agencies additional information relevant to implementation of the NBHCP reasonably available to CITY and SUTTER.
3.1.16 Adaptive Management. CITY and SUTTER agree to abide by and implement all Adaptive Management provisions specified in, and subject to the limitations of, Chapter VI of the NBHCP, including, but not limited to, implementing revisions to management of Mitigation Lands, such as those which may be included in recovery plans for the Covered Species, in response to monitoring results in the Plan Area or to peer-reviewed new scientific information, in response to substantial land use changes in the Basin outside the Permit Areas and system of reserves, and Plan responses to Changed Circumstances.
3.1.17 Overall Program Review/Independent Midpoint Reviews. CITY and SUTTER agree to implement the Overall Program Review and Independent Mid-Point Reviews described in Chapter VI of the NBHCP to evaluate the performance and effectiveness of the NBHCP in achieving its biological goals and objectives.
3.1.18 CITY and SUTTER Liaison. CITY and SUTTER shall each designate a liaison to CDFG and USFWS for communications concerning this Agreement and the NBHCP. The CITY’s and SUTTER’s liaisons shall be responsible for reporting on their respective agency’s implementation of and compliance with this Agreement, the NBHCP, and the Permits. CITY and SUTTER shall notify CDFG and USFWS of the name, address and telephone number of the liaison within 30 days of the Effective Date and shall subsequently notify CDFG and USFWS within 30 days in writing if the name, address or telephone number of the liaison is changed. 6 wc-83845
3.1.19 Implementation of other NBHCP Components. CITY and SUTTER agree to implement each of the other components of the NBHCP identified in the Plan or this Agreement, specifically including enactment of and periodic revisions to the Mitigation Fee ordinances and Catch Up Fee ordinances or through other funding mechanisms except for the CITY or SUTTER general funds, as described in Chapter VI of the Plan as necessary to ensure the NBHCP is fully funded. The commitments set forth herein shall be subject to the limitation that implementation of such measures is within the CITY’s or SUTTER’s land use or other legal authority.
3.2 The Natomas Basin Conservancy.
3.2.1 Establish Mitigation. TNBC agrees that it will serve as the Plan Operator under the NBHCP, and will Acquire, locate, operate, manage, and maintain Mitigation Lands in accordance with Chapters IV through VI of the NBHCP and Section 5 of this Agreement. To the extent provided in the NBHCP, such activities shall be carried out in consultation with the TAC and with the approval of the Wildlife Agencies.
3.2.2 Acceptance of Mitigation Fees. TNBC agrees that it will accept Mitigation Fees from CITY and SUTTER and use them exclusively to implement its Acquisition, management, monitoring, reporting and other responsibilities identified in Chapters IV through VI of the NBHCP.
3.2.3 TNBC Land Management; Site Specific Management Plan/NBHCP Biological Monitoring Plans/Surveys. TNBC agrees that it shall be responsible for implementing the following management obligations within its Permit Area:
(a) TNBC, in consultation with the TAC and subject to the approval of the Wildlife Agencies as provided in the NBHCP, shall prepare a Site Specific Management Plan for each Mitigation Land site acquired by TNBC under the Plan. Each Site Specific Management Plan shall be completed in accordance with the timing requirements specified in Chapter IV and VI, of the NBHCP and shall contain each of the elements described in Chapters IV and VI, E. of the NBHCP. TNBC agrees to implement the Site Specific Management Plans in accordance with the NBHCP and upon approval.
(b) TNBC, in consultation with the TAC and subject to the approval of the Wildlife Agencies as provided in the NBHCP, shall prepare an overall Biological Monitoring Plan consistent with the provisions of Chapter VI of the NBHCP. Upon approval, TNBC agrees to implement the overall NBHCP Biological Monitoring Plan in accordance with the NBHCP. (c) TNBC shall conduct annual surveys of the Covered Species on Mitigation Lands and periodic surveys of the Covered Species throughout the Plan Area as provided in the NBHCP, the Site Specific Management Plans and Plan-wide Biological Monitoring Plan.
3.2.4 Implementation Annual Report . TNBC shall provide the Parties with an Implementation Annual Report by May 1 of each calendar year the NBHCP is in effect. The Implementation Annual Report shall include all of the information identified in Chapter VI of the NBHCP, including the results of the Compliance Monitoring implemented by CITY, SUTTER and TNBC and the Effectiveness Monitoring implemented by TNBC during the prior calendar year, and provide an accounting of all Mitigation Fees collected, all Urban Development Permits Issued, and all Mitigation Lands Acquired.
3.2.5 Implementation Annual Meeting. On or before July 1 of each calendar year each Permittee, USFWS and CDFG shall meet to discuss the Implementation Annual Report submitted by the TNBC, and any concerns, comments or recommendations any of the Parties may have regarding implementation of the NBHCP.
3.2.6 Funding. At least annually, TNBC shall evaluate the adequacy of Mitigation Fees to fund implementation of the NBHCP and shall recommend to CITY and SUTTER adjustments to the Mitigation Fee as necessary to ensure the Plan is fully implemented.
3.2.7 Budgeting and Planning. Prior to the end of each calendar year, the TNBC 7 wc-83845
shall prepare a budget and a plan for its proposed activities for the forthcoming year and provide copies to each Permittee, CDFG and USFWS.
3.2.8 Successor. With the prior written approval of CITY, SUTTER, USFWS and CDFG, the assets and obligations of TNBC may be transferred to any other non-profit corporation provided that the successor corporation assumes each of the obligations of TNBC as set forth under the NBHCP the TNBC Permit, and this Agreement.
3.2.9 Transfer to CDFG. In the event TNBC is unable to meet its financial obligations and is dissolved, becomes insolvent or goes bankrupt, and no other suitable successor is found, then the ownership of the Mitigation Lands (including conservation easements), accumulated Mitigation Fees and other sums designated for enhancement and maintenance of those lands, shall be transferred to the CDFG or a non-profit association or corporation organized for conservation purposes that is approved by USFWS, CDFG, CITY and SUTTER, which shall hold the Mitigation Lands (including conservation easements ) in perpetuity and use the Mitigation Fees for the acquisition and permanent management, operation, maintenance, monitoring, and conservation of the Mitigation Lands in accordance with the NBHCP. In the event the ownership of Mitigation Lands (including conservation easements), accumulated Mitigation Fees and other sums designated for enhancement and maintenance of those lands are transferred to CDFG, CDFG shall have the authority to seek adjustments to the Mitigation Fee consistent with the provisions of the NBHCP.
3.2.10 Operation in Perpetuity. Subject to the requirements of Chapters IV and VI of the NBHCP, Mitigation Lands acquired to meet the NBHCP’s Mitigation Requirement shall function in perpetuity to provide Habitat Values for the Covered Species. TNBC shall establish a sufficient endowment from the endowment components of the Mitigation Fees adopted by CITY and SUTTER to permanently sustain management of the Mitigation Lands in accordance with the NBHCP following expiration or termination of the Permits.
3.2.11 Conflicts of Interest . TNBC shall establish and maintain by-laws which include, at a minimum, restrictions on interests in contracts by Board members and employees which are at least as stringent as those applied to government officers and employees by California Government Code §1090 and following, as well as restrictions on participation in decisions and requirements of financial disclosure which are at least as stringent as those applied to government officers and employees by the Political Reform Act of 1974 and any regulations promulgated pursuant thereto.
3.2.12 TNBC Proceedings Open to Public . TNBC agrees that its actions and proceedings shall be conducted in public, in a manner consistent with the Ralph M. Brown Act, California Government Code Sections 54950, et seq. TNBC may conduct closed sessions for real estate negotiations as permitted in its Bylaws, referenced in the NBHCP, as may be amended from time to time (“TNBC Bylaws”). Pursuant to the TNBC Bylaws, the provisions of the Ralph M. Brown Act regarding the disclosure of information with respect to real property transactions (including, but not limited to Government Code Sections 54954.5(b), 54956.8 and 54957.1(a)(1)), whether such transactions are pending or completed, shall not apply. As used herein, “real property transactions” shall include options to purchase or lease, purchases, and leases of real property, as well as farming contracts affecting real property that TNBC has acquired or is in negotiations to acquire.
3.2.13 Implementation of Other NBHCP Components. TNBC shall implement each of the other components of the NBHCP identified in the Plan or this Agreement, including but not limited to the conservation strategies and Take avoidance, minimization and mitigation measures, to the extent such measures fall under its authority and control.
3.3 USFWS.
3.3.1 Oversight. After issuance of each Section 10(a)(1)(B) Permit, the USFWS shall monitor the implementation of such Permit, this Agreement, and each Permittee’s activities thereunder, to ensure compliance with the NBHCP, this Agreement and the Permits. 8 wc-83845
3.3.2 Technical Assistance. Subject to Section 8.12 of this Agreement, the USFWS shall provide staff to serve on the NBHCP Technical Advisory Committee (TAC), sh all provide responses to TNBC as required under the NBHCP in a timely manner, and recommend, as appropriate, revisions to the NBHCP under the Plan’s Adaptive Management, Overall Program and Independent Mid-Point Reviews, and other applicable provisions, to ensure the viability of the Plan.
USFWS shall also make available USFWS staff for informal consultations and meetings with the staffs, boards or councils of the Permittees to assist with implementation of the NBHCP. Consistent with its legal authorities, the USFWS shall cooperate with TNBC in obtaining additional funding from sources including, but not limited to, existing and future state and federal grant programs and bond issues to augment the conservation strategies of the NBHCP. Such funds are in addition to, and not in substitution of, the funding required to implement the NBHCP as described in this Agreement.
3.3.3 Newly Listed Uncovered Species. Coverage and authorization for Take of newly listed species which are not covered under the Permits shall require amendment of the NBHCP and the Permits. Until and unless the Section 10(a)(1)(B) Permits are amended to cover the newly listed species, the Permittees shall adhere to the Changed Circumstances provisions applicable to the listing of a new species as described in Chapter VI of the NBHCP. Modification of the NBHCP as necessary to amend the Permits to authorize take of new species not previously covered by the NBHCP shall be at the discretion of all parties to the NBHCP, this Agreement and the associated Permits.
3.3.4 Effective Date and Issuance of Section 10(a) Permits. (a) For purposes of the Section 10(a)(1)(B) Permit, as to each Land Use Agency Permittee, the USFWS and TNBC, the Effective Date of this Agreement shall be the date, following execution of this Agreement by that Land Use Agency Permittee, the USFWS and TNBC, that the Section 10(a)(1)(B) Permits are issued to that Land Use Agency Permittee and TNBC.
(b) Following execution of this Agreement, the Service will issue a Section 10(a) Permit to each signatory Permittee authorizing the Take of each listed Covered animal Species incidental to the Covered Activities, subject to and in accordance with the NBHCP, this Agreement and the Permits.
(c) For Covered animal Species not listed as an endangered species or threatened species under ESA as of the Effective Date, the Section 10(a) Permits shall become effective as to each such species concurrent with the listing of the species as a threatened species or endangered species under the ESA. The NBHCP also covers seven (7) plant species.
Take of listed plants is not prohibited under the ESA and therefore will not be authorized under the Section 10(a) Permits. Plants are included as Covered Species under the NBHCP and will be listed on the federal permits in recognition of the conservation measures provided for them under the NBHCP. Plant species covered under the NBHCP will also be provided assurances under the federal “No Surprises” rule.
3.3.5 Permit Findings. USFWS, based on the best scientific and commercial data available and the terms and provisions of this Agreement and the NBHCP, has found that with respect to the Covered Species:
(a) The Taking of Covered Species will be incidental to otherwise lawful activities.
(b) Implementation of the NBHCP by the Permittees will, to the maximum extent practicable, minimize and mitigate the impacts of the Incidental Take of Covered Species.
(c) CITY and SUTTER will ensure that adequate funding for the NBHCP will be provided and the NBHCP and this Agreement provide procedures for addressing Changed Circumstances and Unforeseen Circumstances.
(d) The Take of Covered Species in accordance with this 9 wc-83845
Agreement will not appreciably reduce the likelihood of the survival and recovery of the Covered Species in the wild.
(e) The measures agreed upon by the Permittees and the
USFWS for purposes of the NBHCP will be met.
(f) Through this Agreement, the USFWS has received the
required assurances that the NBHCP will be implemented.
3.4 CDFG.
3.4.1 Oversight. After issuance of the Section 2081 Permit to CITY and SUTTER, CDFG shall monitor the implementation of the Section 2081 Permit, this Agreement and TNBC’s activities thereunder, including but not limited to, the modification, enhancement, operation and maintenance of the Mitigation Lands in order to ensure compliance with this Agreement and consistency with CDFG’s trustee agency duties pursuant to CESA, and recommend any amendments to the NBHCP CDFG deems desirable, in the reasonable exercise of its discretion, under the Plan’s Adaptive Management provisions as described in Chapter IV, Section E of the NBHCP or the Overall Program Review as described in Chapter IV, Section I of the NBHCP.
3.4.2 Assistance. CDFG shall provide staff to serve on the NBHCP TAC, and shall ensure the availability of its staff for informal consultations and meetings with TNBC and the staffs, boards or councils of the other Parties to this Agreement to ensure the appropriate monitoring of permitted activities which may lead to the Incidental Take of State Protected Species. CDFG will assist TNBC (to the extent authorized by the California Legislature) in obtaining additional funding from sources including, but not limited to, existing and future state and federal grant programs and bond issues to augment the conservation strategies of the NBHCP. Such funds are in addition to, and not in substitution of, the funding required to implement the NBHCP as described in this Agreement.
3.4.3 New Species. CDFG shall make available to Permittees information it has or acquires regarding new sightings or occurrences of any species in the Permit Areas which is state listed as threatened or endangered, is a candidate for listing as threatened or endangered, or is otherwise likely to be state listed, and which is determined to be dependent upon habitat in the Permit Area, if such species is not otherwise described in Exhibit D hereof. Once a year, upon the request of TNBC, CDFG shall provide TNBC with updated information from the California Natural Diversity Data Base (“CNDDB”) covering new sightings and occurrences of any species not otherwise described in Exhibit D within the Permit Areas. At the same time, CDFG may propose any amendments to the NBHCP CDFG deems reasonably necessary to preserve Habitat Values for the benefit of such species.
3.4.4 CDFG Land Management. CDFG shall manage in perpetuity, in a manner consistent with the NBHCP, for the conservation of the Covered Species any Mitigation Lands conveyed to it by TNBC pursuant to the terms and provisions of this Agreement.
3.4.5 Effective Date and Issuance of Section 2081(b) Permit. (a) For purposes of the Section 2081(b) Permit, as to each Land Use Agency Permittee, CDFG and TNBC, the Effective Date of this Agreement shall be the date, following execution of this Agreement by that Land Use Agency Permittee, CDFG and TNBC, that the Section 2081(b) Permits are issued to that Land Use Agency Permittee and TNBC. (b) Following execution of this Agreement, CDFG will issue a Section 2081(b) Permit or modification to an existing Permit to each Permittee authorizing the Take of each Covered Species incidental to Covered Activities, subject to and in accordance with the NBHCP and this Agreement.
(c) As to each Covered Species that is not currently listed under CESA, the Incidental Take Authorization under the Section 2081(b) Permits shall become effective consistent with Section 6.2.4 of this Agreement.
10 wc-83845
3.4.6 Section 2081(b) Permit Findings.
CDFG, based on the best scientific and other information that is reasonably available, and the terms and provisions of this Agreement and the NBHCP, has found that with respect to the Covered Species:
(a) Incidental Take. The authorized Take of Covered Species will be incidental to an otherwise lawful activity.
(b) Minimize and Fully Mitigate. The impacts of the authorized Take will be minimized and fully mitigated.
(c) Roughly Proportional. The measures required to minimize and fully mitigate the impacts of the authorized Take will be roughly proportional in extent to the impact of the authorized Take of Covered Species.
(d) Applicant’s Objectives. The measures required to minimize and fully mitigate the impacts of the authorized Take will preserve Permittee objectives to the greatest extent possible, consistent with the obligation to minimize and fully mitigate the impacts of the authorized Take.
(e) Capable of Successful Implementation. All required measures will be capable of successful implementation.
(f) Adequate Funding. Permittees have ensured adequate
funding to implement the required minimization and mitigation measures, and for monitoring compliance with, and effectiveness of, those measures.
(g) No Jeopardy. The issuance of the Section 2081(b) Permits will not jeopardize the continued existence of any Covered Species. (h) Unlisted Species. Covered Species that are not currently listed as threatened or endangered under CESA have been treated in the NBHCP as if they were listed, and the NBHCP identifies measures to minimize and fully mitigate the impacts of the authorized Take of such unlisted species. The findings in this Section 3.4.5 apply to all Covered Species, including Covered Species that are not listed. 4 MITIGATION
4.1 Mitigation Lands. Mitigation Lands will be established and managed pursuant to the NBHCP.
4.2 Respective Permit Areas. Developers of all lands within the respective Permit Areas that are developed pursuant to an Urban Development Permit, shall provide mitigation pursuant to the NBHCP for the direct, indirect and cumulative impacts of development upon Covered Species and their habitat. CITY and SUTTER shall require an Urban Development Permittee to provide mitigation for the conversion of land to Authorized Development in the respective Permit Areas, in conformity with the NBHCP and the following sections.
4.3 Existing Development Exempt. Parcels of land within the respective Permit Areas that are shown as “Exempt Area-Existing Development” and “Development Subject to 1997 HCP” on the Baseline Maps depicted on Exh ibits B and C of this Agreement are not covered by the NBHCP, this Agreement, or the Permits, provided, however, that nothing in this Agreement shall be construed to exempt such existing development from any applicable requirements of the ESA or CESA.
4.4 Mitigation Ratio. Mitigation for the conversion of land in the respective Permit Areas to Authorized Development will be required at the ratio of one half (½) acre of land protected or conserved for every one (1) acre of land converted to Authorized Development (the “Mitigation Ratio”).
4.5 Calculation of Mitigation Requirement for Authorized Development Projects. The Mitigation Requirement for each public or private project is determined by applying the Mitigation Ratio to the land area converted to Authorized Development (the “Mitigation Requirement”). The 11 wc-83845
land area converted to Authorized Development is determined as follows:
(1) For both private and public development projects, except as provided in (2) and (3) below, the gross area of a particular project is considered “land area converted to Authorized Development” whether the entire project is graded or not. The fees payable shall be calculated by multiplying the Mitigation Fees (in dollars per acre) times the land area converted to Authorized Development, prorated for fractional acres.
(2) For private development projects, a separate parcel or portion of a parcel which will be transferred to a public agency for a public use consisting of a park, school or other public building, is exempt. The M itigation Requirement for such uses must be satisfied when the parcel of public use property is developed by the respective public agency owning the parcel. With respect to other lands designated for public use, the following criteria will apply: (a) Roads: where a road is included within the respective Land Use Agency’s finance plan for purposes of financing, the land transferred or to be transferred by fee or easement to the agency for the road project is excluded; where a road is not one which is financed pursuant to the agency’s finance plan, but is to be paid for entirely by the private landowner or developer of the project, even though ultimately it will be dedicated to the agency, the land transferred or to be transferred to the agency for the road is included; (b) Utilities: where the landowner or developer is required to transfer to the respective Land Use Agency or another public entity (e.g., Sacramento Municipal Utility District), by easement or fee, land for a structure such as a pump station, outfall station, or similar structure, such land is excluded; where the landowner or developer is required to transfer to the agency non- exclusive easements for utility lines (water lines, sewer lines, and similar lines), the land covered by such easements is included; if the easement is exclusive, the land covered by the easement is excluded, but the transferee agency will be required to provide mitigation upon development of the transferred parcel. With respect to each parcel or portion of a parcel exempted or excluded pursuant to this section, the Mitigation Requirement shall be satisfied by CITY or SUTTER at the time such parcel or portion of land is converted to Authorized Development. (3) For both private and public projects, excluded is any parcel or portion of the parcel approved as Mitigation Land by TNBC and the Wildlife Agencies in accordance with the NBHCP and which will be transferred in fee to TNBC or will be encumbered by a Conservation Easement in favor of TNBC for purposes of satisfaction of the Mitigation Requirement for the particular development project.
4.6 Satisfaction of Mitigation Requirement . The Land Use Agency Permittes each re
tains authority to require an Urban Development Permittee/landowner to satisfy the Mitigation Requirement by: (1) payment of the Mitigation Fees; or (2) subject to the approvals required by the NBHCP, transfer of Mitigation Land to TNBC, together with payment of all components of the Mitigation Fee except the Land Acquisition Fee as specified in the NBHCP. C redit against the Land Acquisition Fee component of the Mitigation Fees is based on the number of acres of land being transferred and is not based on cost or perceived value of the land transferred. Where a Land Use Agency Permittee elects to require an Urban Development Permittee to transfer land to TNBC, (1) TNBC and the Wildlife Agencies must approve the transfer of each parcel of Mitigation Land considering its location, proximity to urban uses and roads, current land condition, and all other factors specified in the NBHCP, and (2) such land must be dedicated prior to authorization by the applicable Land Use Agency Permittee for dissturbance of the land resulting from the associated Urban Development Project. If the amount of land transferred to TNBC is less than the Mitigation Land required for the public or private project, the landowner is obligated to pay the outstanding balance of the Land Acquisition Fee component of the Mitigation Fees. If the amount of land transferred to TNBC is greater than the amount of Mitigation Land required for the development project, the landowner may choose one of the following credit options: (i) receive credit from the excess amount of land toward required Mitigation Land under the NBHCP for future Authorized Development of property owned by the landowner; or (ii) transfer credit from the excess amount of 12 wc-83845
land toward required Mitigation Land under the NBHCP for Authorized Development of property owned by another specified landowner. If either credit option is chosen, then prior to the transfer of Mitigation Land being finalized, the landowner shall inform CITY or SUTTER, as appropriate and TNBC in writing of the choice to receive or transfer credit and to whom the credit is to be transferred. Any transfer of fee title to lands or a Conservation Easement therein in order to satisfy the Mitigation Requirement shall be accomplished by a deed or grant of a conservation easement to TNBC in a form acceptable to USFWS and CDFG, in recordable form on or before issuance of an Urban Development Permit (i.e., a building permit, grading permit, or other permit which allows a disturbance of the surface of the earth for the public or private project). All land proposed to be transferred to TNBC in satisfaction of the Mitigation Requirement must meet the acquisition criteria specified in the NBHCP.
4.7 Jurisdictional Wetlands. Nothing in this Agreement shall relieve any Urban Development Permittee desiring to discharge any fill or other material into any jurisdictional wetlands, of any requirement to obtain a Clean Water Act Section 404 Permit from the U.S. Army Corps of Engineers and comply with all the terms and conditions thereof. Take of Covered Species related to jurisdictional wetlands by the Urban Development Permittee shall be authorized through the incidental take permits issued to CITY and SUTTER and shall be subject to the requirements of the NBHCP.
4.8 Rivers, Streams or Lakes. Nothing in this Agreement shall relieve any Urban Development Permittee desiring 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 CDFG, or use any material from the streambeds, of any requirement to comply with Fish and Game Code, Division 2, Chapter 6, commencing with Section 1600 (concerning Streambed Alteration Agreements). This Agreement and implementation of the NBHCP are intended to satisfy only site-specific mitigation requirements for impacts of taking Covered Species as a result of an Authorized Development project which may be imposed under Chapter 6 of the California Fish and Game Code, with the exception of mitigation specifically directed at those vernal pool species included on the list of Covered Species.
4.9 Funding for Operating Conservation Program. CITY and SUTTER shall fund the Operating Conservation Program in accordance with Chapter VI of the NBHCP.
4.9.1 Mitigation Fees. Where an Urban Development Permittee selects payment of Mitigation Fees as its method of satisfying the Mitigation Requirement for the public or private project, the provisions of Section 4 shall govern the calculation and collection of such fees, and such Urban Development Permittee shall pay the Mitigation Fees as so calculated. The amount payable for the Mitigation Fee shall be the amount specified by ordinance or resolution adopted by the governing body of the CITY or SUTTER, including but not limited to the “catch-up fee” ordinances or other ordinances or resolutions adopted prior to or after the Effective Date.
4.9.2 Adjustments to the Mitigation Fee for Purposes of Funding the Operating Conservation Program Other than Changes to the Managed Marsh Component. Notwithstanding any other provision of this Agreement, upon request of TNBC or upon the written request of USFWS or CDFG as supported by documented evidence in the form of a written report and technical analysis, and as otherwise necessary, CITY and SUTTER shall review, and at the discretion of each, adjust the Mitigation Fees to take into account costs of land acquisition and TNBC operations, to maintain or meet the Mitigation Ratio specified in Section 4.4 of this Agreement, and to meet TNBC management, monitoring, adaptive management, or related costs required to fund the Operating Conservation Program as set forth in Chapters IV, V and VI of the NBHCP. The decision to adjust the Mitigation Fees may include but is not limited to consideration of the following factors: (1) the market price of land being acquired as Mitigation Land; (2) the necessity to maintain the 0.5 to 1 Mitigation Ratio; (3) the need to fund ongoing and permanent management and monitoring costs in accordance with the NBHCP; (4) the necessity to ensure the 13 wc-83845
effectiveness of the NBHCP’s Operating Conservation Program; and (5) the availability of other sources of revenues, including the sale of hunting rights on Mitigation Lands, proceeds from the cultivation of rice on Mitigation Lands and other funds and grants. (a) Notwithstanding the foregoing and in accordance with, an d subject to the limitations of, Chapter VI of the NBHCP, CITY or SUTTER shall be obligated to increase the Mitigation Fees to fund recommended changes to the Operating Conservation Program resulting from future recovery plans, monitoring results from the Plan Area or peer- reviewed new scientific information relevant to the Plan only when such recommendations:
(1) Relate to the physical management of Mitigation
Lands;
(2) Would improve the effectiveness of the NBHCP’s
Operating Conservation Program by identifying relevant new information, approaches, techniques, or species protection needs;
(3) Can be implemented within the NBHCP Plan Area; and
(4) Fit within the overall intent and framework, are
consistent with the NBHCP’s biological goals and objectives and would not exceed the established Mitigation Ratio of the NBHCP; and
(5) Would not substantially sacrifice habitat values for Covered Species that are not addressed by the recovery plan, the monitoring results or other peer- reviewed new scientific information.
(b) Adjustment of the Mitigation Fees pursuant to this subsection is independent of adjustments made on account of inflation/deflation pursuant to Section 4.9.4 of this Agreement. Nothing in this Agreement shall be construed to diminish or otherw ise affect the discretionary authority of the Land Use Agencies with respect to fee adjustments under this Section
4.9.1. 4.9.3 Adjustments to the Mitigation Fee for purposes of Funding the Changes to the Managed Marsh Component. Upon written notification supported by documented evidence in the form of a written report and technical analysis by USFWS or CDFG to CITY and SUTTER of the adoption of a future Giant Garter Snake Recovery Plan, the availability of monitoring results from the Plan Area, or peer-reviewed new scientific information indicating an adjustment in the enhancement and management activities for managed marsh as specified in Chapter VI of the NBHCP, the CITY and SUTTER shall review, and at the discretion of each, adjust the Mitigation Fees to take into account increased costs of TNBC’s enhancement and management of a higher proportion of managed marsh on Mitigation Lands acquired after adoption of the final Giant Garter Snake Recovery Plan by the USFWS, the availability of peer-reviewed new scientific information or monitoring results from the Plan Area indicate an adjustment in the enhancement and/or management activities for managed marsh is warranted as specified and subject to the limitations contained in Chapter VI of the NBHCP. The obl igation to adjust the Mitigation Fees shall be subject to the following limitations set forth in Chapter VI of the NBHCP:
(b) the obligation to increase the Mitigation Fees shall be applied prospectively to future Mitigation Lands acquired after adoption of the Recovery Plan, in response to monitoring results from the Plan Area or in response to peer-reviewed new scientific information. (c) if the Recovery Plan, monitoring results collected from the Plan Area, or peer-reviewed new scientific information indicate a higher proportion of managed marsh (1) will improve the effectiveness of the NBHCP’s Operating Conservation Program to meet its biological goals and objectives, (2) is beneficial to the snake, and (3) will not adversely affect any other listed Covered Species.
(d) the maximum levels of managed marsh which may apply to future Mitigation Land acquisitions which occur after the results of monitoring from the Plan Area or 14 wc-83845
peer-reviewed new scientific information, or Giant Garter Snake Recovery Plan adoption shall not exceed seventy-five percent (75%) of such Mitigation Lands.
Adjustment of the Mitigation Fees pursuant to this subsection is independent of adjustments made on account of inflation/deflation pursuant to Section 4.9.4 of this Agreement. (Nothing in this Agreement shall be construed to diminish or otherwise affect the discretionary authority of the Land Use Agencies with respect to fee adjustments under this Section 4.9.2.)
4.9.4 Fee Adjustments for General Inflation. On or before January 1 of each year, CITY and SUTTER shall review and, at the discretion of each, adjust the dollar amount of the Mitigation Fees (as adjusted from time to time pursuant to Section 4.4.1), to take into account the effects of inflation/deflation generally. Adjustments will be calculated as follows: the current Mitigation Fee shall be multiplied by the index for October of the year prior to January 1, divided by the index for October of the preceding year [e.g., 2003 Fee = 2002 Fee x (October, 2002 CPI Index/October, 2001 CPI Index)]. For purposes of making this adjustment, the index utilized shall be the Consumer Price Index for All Urban Consumers, All Items, San Francisco– Oakland–San Jose (1982-1984=100), as published by the U.S. Department of Labor, or its successor. Technical adjustments made pursuant to this Section 4.9.4 shall be independent of, in addition to and not a part of adjustments to, the Mitigation Fee adjustments made pursuant to Section 4.9.2 and 4.9.3.
4.9.5 Failure to Adjust Mitigation Fees. CITY and SUTTER acknowledge that the failure of either CITY or SUTTER to adjust the Mitigation Fees as necessary to maintain the Mitigation Ratio and ensure implementation of each of the other requirements of the NBHCP identified in Chapters IV through VI of the NBHCP and/or in this Section 4 may result in suspension or revocation of their respective Permits as set forth in Section 7.6 of this Agreement. 5 Mitigation Lands
5.1 Location of Mitigation Lands. TNBC shall locate Mitigation Lands in accordan ce with Chapters IV through VI of the NBHCP and this Section.
5.2 Setbacks and Buffers. All Mitigation Lands Acquired by TNBC shall conform to the buffer and setback requirements set forth in Chapters IV and VI of the NBHCP.
5.3 In-Basin Acquisition. All Mitigation Lands shall be acquired within the Natomas Basin as provided in the NBHCP.
5.4 Coordinating Mitigation Land Acquisition With Agency Acquisitions. Prior to the Acquisition of any parcel of Mitigation Land, TNBC shall provide written notice to the USFWS, CDFG, and both CITY and SUTTER of its intent to Acquire such lands. USFWS and CDFG agree that they will not knowingly interfere or compete with TNBC for the Acquisition or control of such lands and that they will consult with TNBC in formulating any Acquisition plans. As to those lands identified by USFWS or CDFG for acquisition, TNBC, likewise, shall not knowingly interfere with or compete with the affected agency for acquisition or control until TNBC is notified by that agency that it is no longer pursuing acquisition or control of the lands. 15 wc-83845
5.5 Timing of Mitigation Land Acquisition. TNBC shall comply with the requirements of the NBHCP relating to the Acquisition of Mitigation Lands in advance of approval of Authorized Development set forth in Chapter VI of the NBHCP. The Parties further agree that in order to ensure that Mitigation Lands are Acquired in an amount sufficient to meet the Mitigation Requirement that attaches to all Authorized Development under the NBHCP, TNBC shall establish a 200 acre cushion of Mitigation Lands prior to the approval of any Authorized Development by CITY or SUTTER under the Plan and shall maintain the 200 Acre Mitigation Land cushion until the approval of the last 400 acres of Authorized Development under the Plan. CITY, SUTTER and TNBC shall implement this requirement in accordance with the NBHCP, as follows. (a) No Urban Development Permits for Authorized Development shall be issued by CITY or SUTTER after September 30 of each calendar year until TNBC notifies CITY and SUTTER that it has Acquired Mitigation Lands which equal the number of acres necessary to meet the Mitigation Requirement attached to all prior Urban Development Permits issued by CITY and SUTTER plus an additional 200 acres of Mitigation Land. (b) Because TNBC is responsible for Acquiring Mitigation Lands for Planned Development, TNBC will credit mitigation fees collected under the Metro Air Park HCP (MAP HCP) along with all Mitigation Fees collected by CITY and SUTTER for Authorized Development. The collection of Mitigation Fees for Planned Development will be credited against the Mitigation Lands Acquired by TNBC, in chronological order, with priority given to the oldest project among those approved under the MAP HCP and the CITY’s or SUTTER’s Permits to have paid Mitigation Fees.
5.6 Acquisition of 400 and 2,500-Acre Blocks. TNBC shall comply with those provisions of the NBHCP relating to Acquisition of Mitigation Lands to ensure that the Mitigation Lands are consolidated in minimum 400-acre habitat blocks and at least one 2,500 acre habitat block prior to the expiration of the Permits. The 400 acre minimum block requirement and the 2,500 acre minimum block requirement shall be applied in the aggregate to all Permittees and to all ot her approved HCPs in the Natomas Basin that are based on the NBHCP, so that the plans as a whole must achieve the identified habitat block consolidation requirements set forth in the NBHCP upon Plan completion. Notwithstanding the above, CITY and SUTTER each retain the independent obligation to provide 400 acre minimum blocks and one 2,500 acre minimum block prior to the date their respective Permits expire in the event the other Permittees cease participation in the NBHCP, or in the event the Potential Permittees choose not to participate in the NBHCP. None of the provisions contained herein shall be construed to prohibit the USFWS or CDFG from authorizing Mitigation Land acquisitions that do not comply with the minimum 400-acre minimum block size in the event that TNBC identifies potential Mitigation Lands which otherwise provide opportunities for the preservation of important biological resources.
5.7 Accounting for Mitigation Lands
5.7.1 Managed Marsh. Mitigation Lands acquired and converted to and managed as seasonal or perennial marsh, and existing marsh lands acquired by TNBC and managed as seasonal or perennial marsh, will count fully toward the 0.5:1 Mitigation Ratio described in Section
4.4 of this Agreement.
5.7.2 Rice Land. Mitigation Lands in current rice production as Rice Lands will count fully toward the 0.5:1 Mitigation Ratio described in Section 4.4 of this Agreement.
5.7.3 Uplands. Mitigation lands providing upland habitats will count fully towards the 0.5:1 Mitigation Ratio described in Section 4.4 of this Agreement.
5.7.4 Proportion of Mitigation Lands as Marsh. Within three years of the approval of a Site Specific Management Plan a minimum of 25 percent of the Mitigation Lands must be in managed marsh as specified in the NBHCP. Thereafter, a minimum of 25 percent of the Mitigation Lands shall be in managed marsh until and unless that amount is increased up to a maximum of 75 percent of the Mitigation Lands in accordance with Section 4.9.3 of this Agreement and Chapter VI 16 wc-83845
of the NBHCP. Pursuant to Section 4.9.3 of this Agreement and Chapter VI of the NBHCP, any increase in the amount of Mitigation Lands required to be in managed marsh shall apply only to Mitigation Lands Acquired to satisfy the Mitigation Requirement for Authorized Development which are acquired after the USFWS or CDFG provide written notice and its accompanying documentation of Recovery Plan adoption, the availability of monitoring results from the Plan Area, or the availability of credible scientific information collected in the Plan Area. Provided the Wildlife Agency’s requested increase in managed marsh complies with Chapter VI of the NBHCP, the failure of TNBC to adopt the increase in managed marsh as requested by either Wildlife Agency shall trigger a reevaluation of the Plan and possible suspension or revocation of the CITY and SUTTER’s Permits as set forth under Section 7.6 of this Agreement.
5.8 Conservation Measures. CITY and SUTTER shall include in each Urban Development Permit the Conservation Measures provided in Chapter V of the NBHCP. 6 ASSURANCES
6.1 USFWS
6.1.1 No Surprises Assurances.
(a) Unforeseen Circumstances. As provided in 50 C.F.R. 17.3, the term “Unforeseen Circumstances” shall mean changes in circumstances affecting a species or geographic area covered by the NBHCP that could not reasonably have been anticipated by the plan developers and USFWS at the time of the Plan’s negotiation and development, and that results in a substantial and adverse change in the status of a Covered Species. (1) “No Surprises” Assurances. Pursuant to the No
Surprises Rule at 50 C.F.R. Sections 17.3, 17.22(b)(5) and 17.32(b)(5), and provided that CITY, SUTTER and TNBC are properly implementing the NBHCP, USFWS shall not require CITY, SUTTER or TNBC to provide additional land, water or other natural resources, or financial compensation or additional restrictions on the use of land, water, or other natural resources beyond the level provided for under the NBHCP, this Agreement and the Permits with respect to Covered Activities under the Permits without the consent of CITY or SUTTER. However, nothing in this Section or in the Assurances Rule shall be interpreted: (1) to restrict the authority of USFWS to take appropriate action under the ESA or applicable regulations to ensure that the NBHCP is properly implemented in accordance with this Agreement; (2) to apply to future Adaptive Management modifications for Mitigation Lands that are deemed necessary or appropriate by the USFWS or CDFG as determined in accordance with Chapter VI of the NBHCP and in consultation with CITY, SUTTER and TNBC, to respond to the results of monitoring in the Plan Area, or to new scientific information relevant to the NBHCP, (3) to apply to future modifications to the NBHCP as a result of future recovery plans as determined in accordance with Chapter VI of the NBHCP, (4) to apply to the NBHCP responses to Changed Circumstances identified in Chapter VI of the NBHCP, or (5) to apply to changes anticipated to occur as a result of the Urban Development activities anticipated by the Section 10(a)(1)(B) Permit, Section 2081(b) Permit, or as otherwise approved by the USFWS, provided that such actions, modifications and changes comply with the limitations and restrictions set forth in Chapter VI of the NBHCP. If USFWS makes a finding of unforeseen circumstances, during the period necessary to determine the nature and location of additional or modified mitigation, CITY, SUTTER and TNBC will avoid contributing to appreciably reducing the likelihood of the survival and recovery of the affected species and ensure that third persons under their control that are carrying out Covered Activities avoid contributing to appreciably reducing the likelihood of the survival and recovery of the affected species. (2) Unforeseen Circumstances Finding. In the event that USFWS believes that Unforeseen Circumstances may exist in accordance with the “No Surprises” rule, it shall notify CDFG, CITY, SUTTER and TNBC in writing of the applicable specific facts described in Section 6.1.1 above. In the notification, USFWS shall clearly document the basis for 17 wc-83845
the proposed finding regarding the existence of Unforeseen Circumstances in accordance with the requirements of 50 C.F.R. § 17.22(b)(5)(iii)(C) and 17.32(b)(5)(iii)(C). Within fifteen (15) days of receiving such notice, CITY, SUTTER and TNBC, USFWS and CDFG shall meet to consider the facts cited in the notice and potential changes to the NBHCP’s Operating Conservation Program or management and operation of the Mitigation Lands. Pursuant to 50 C.F.R. § 17.22(b)(5)(iii)(C) and
17.32(b)(5)(iii)(C), USFWS shall make an Unforeseen Circumstances finding based on the best scientific evidence available, after considering any responses submitted by any other Parties pursuant to this section, and USFWS shall have the burden of demonstrating that Unforeseen Circumstances exist.
(3) Effect of Unforeseen Circumstances Finding. Pursuant to 50 C.F.R. 17.22(b)(5) and 17.32(b)(5), in the event that USFWS makes a finding of Unforeseen Circumstances and additional conservation and mitigation measures are deemed necessary to respond to such Unforeseen Circumstances, USFWS may require additional measures from CITY, SUTTER or TNBC where the NBHCP is being properly implemented, but only if such measures are limited to modifications within the Mitigation Lands and the NBHCP’s Operating Conservation Program for the affected species and maintain the original terms of the NBHCP to the maximum extent possible. Additional conservation and mitigati on measures shall not involve the commitment of additional land, water or other natural resources without the consent of CITY and SUTTER. (b) Changed Circumstances.
(1) Changed Circumstances Defined. As provided in 50
C.F.R. 17.3, the term “Changed Circumstances” means changes in circumstances affecting a species or geographic area covered by the NBHCP that can reasonably be anticipated by CITY, SUTTER or TNBC and that can be planned for in the NBHCP (e.g. the listing of a new species, or a fire or other natural catastrophic event in areas prone to such events.) Changed circumstances and planned responses to those circumstances are described in Chapter VI of the NBHCP. (2) Permittee-Initiated Response to Changed
Circumstances. CITY, SUTTER or TNBC, as a ppropriate, will immediately notify USFWS and all other Permittees upon learning that any of the Changed Circumstances listed in Chapter VI of the NBHCP has occurred, and shall provide written notice within seven (7) days . Permittees shall modify their activities and shall require third persons under the Permittees’ control to modify their activities, as appropriate, in accordance with Chapter VI of the NBHCP, to the extent necessary and feasible to minimize and mitigate the effects of the Changed Circumstances. CITY, SUTTER and TNBC and will report to USFWS on their actions. Such modifications will be initiated without awaiting notice from USFWS. Such changes are provided for in the NBHCP, and hence do not constitute unforeseen circumstances or require amendment of Permits or the NBHCP. (3) USFWS-Initiated Response to Changed
Circumstances. If USFWS determines that Changed Circumstances have occurred and that CITY, SUTTER or TNBC have not responded in accordance with Chapter VI of the NBHCP, the USFWS in coordination with CDFG will so notify CITY, SUTTER and TNBC and, as appropriate, direct them to make the required changes. Within thirty (30) days after receiving such notice, CITY, SUTTER or TNBC, as appropriate, will make the required changes and report to USFWS on their action. Such changes are provided for in the NBHCP, and hence do not constitute unforeseen circumstances or require amendment of Permits or of the NBHCP.
6.1.2 Migratory Bird Treaty Act (MBTA). If during the term of the Section 10(a)(1)(B) Permits, an avian Covered Species which is protected under the MBTA is listed under the ESA, the Section 10(a)(1)(B) Permits will also constitute Special Purpose Permits under 50 C.F.R. Section 21.27 for the “take” (for purposes of this Section, as that term is understood under the MBTA) of those Covered avian Species which are listed as threatened or endangered under the ESA and which are also protected by the MBTA. The take of such species in conjunction with any Authorized Development Project, in accordance with the terms of this Agreement, the NBHCP and 18 wc-83845
CITY’s, SUTTER’s or TNBC’s Section 10(a)(1)(B) Permits, will not be in violation of the MBTA.
Such Special Purpose permits shall be valid for a period of three years from the date the species is listed under the ESA provided that City's, Sutter's, or TNBC's Section 10(a)(1)(B) Permit, as applicable, remains in effect for that period. Such Special Purpose Permit will authorize take of any avian Covered Species listed under the ESA during the three year Special Purpose Permit term.
Such Special Purpose Permit shall be renewed as to each Permittee, provided that each Permittee continues to fulfill its obligations under this Agreement. Each such renewal shall be valid for the maximum period of time allowed by 50 C.F.R. Section 21.27 or its successor at the time of renewal.
6.1.3 Beneficial Effects With Respect to Future Listings. To the extent permitted by the ESA and consistent with the provisions of the NBHCP, the USFWS shall consider the NBHCP and this Agreement in any future determination by the USFWS with regard to the listing of one or more of the currently unlisted Covered Species as an endangered species or threatened species pursuant to the ESA.
6.1.4 Critical Habitat. The USFWS further agrees that it will consider the NBHCP in its preparation of any proposed designation of critical habitat concerning any Covered Species and agrees that, consistent with 50 C.F.R. 424.12, the NBHCP incorporates those special management considerations necessary to manage the Covered Species and their habitats in a manner that will provide “for the conservation of the species involved” within the CITY, SUTTER’s and TNBC’s respective Permit Areas in the Natomas Basin. Consistent with the No Surprises Rule set fort h in Section 6.1.2(a), in the event that a critical habitat designation is made for any Covered Species and upon a determination that CITY, SUTTER and TNBC are properly implementing the NBHCP, no additional mitigation in the form of land, land restrictions or financial compensation, beyond that required by the NBHCP, shall be required of any Permittee in connection with Urban Development in its Permit Area as a result of such critical habitat designation without the consent of that Permittee.
6.1.5 ESA Listing of Currently Unlisted Covered Species. In the event that one or more of the Covered animal Species that are not currently listed as an endangered species or threatened species are so listed pursuant to the ESA, the Section 10(a)(1)(B) Permit shall become effective to permit the Incidental Take of such species in connection with Urban Development within each Permittee’s Permit Area as of the date the species is listed provided the CITY, SUTTER and TNBC are properly implementing the NBHCP. The Parties expressly acknowledge that it is the intent of this Agreement that the Mitigation Lands will be administered so as to conserve and enhance the habitat values for all listed and unlisted Covered Species reasonably expected to be found in Natomas Basin , to the extent provided for in the NBHCP.
6.2 CDFG
6.2.1 CESA Compliance. CDFG shall consider adherence to the terms of this Agreement to be compliance with the CESA and the California Native Plant Protection Act for the impacts of Authorized Development on State Protected Species in the Permit Area. Take of Fully Protected Species is not authorized by this Agreement.
6.2.2 Adequate Mitigation Under CESA. CDFG shall consider adherence to the terms of the Section 2081 Permit, the NBHCP and this Agreement to minimize and fully mitigate the impacts associated with the Incidental Take of State Protected Species in the Permit Areas as authorized by the Section 2081 Permit and this Agreement pursuant to CESA.
6.2.3 Assurances. Except as otherwise required by law, no further mitigation from Urban Development Permittees and/or CITY and SUTTER consisting of land, additional land restrictions, or financial compensation beyond that described herein and provided for in the NBHCP, will be required by CDFG to address the impacts of Authorized Development within the respective Permit Areas on the State Protected Species, Covered Species which become listed in the future as State-protected species, or their habitats pursuant to the CESA. 19 wc-83845
6.2.4 CESA Listing of Currently Unlisted Covered Species. In the event that one or more of the Covered Species that are not State Protected Species are listed as an endangered species or threatened species or candidate species pursuant to the CESA (“Additional State Protected Species”), the Section 2081 Permit shall become effective to permit the Incidental Take of such species in connection with Authorized Development within each Permittee’s Permit Area as of the date the species is accepted and designated as a candidate species pursuant to California Fish and Game Code section 2074.2, upon confirmation by CDFG that substantial evidence demonstrates that the Section 2081 Permit will continue to meet the standards in California Fish and Game Code Section 2081(b) and Title 14 of the California Code of Regulations, Section 783,4 for the Additional State Protected Species. In the event CDFG determines that such standards will not be met, and the Section 2081 Permit does not become effective upon the designation of an Additional State Protected Species as a candidate, threatened, or endangered species under CESA, CDFG shall accept and give due consideration to the minimization and mitigation measures in the NBHCP and this Agreement in support of an application for a permit amendment or for a separate Section 2081 Permit authorizing Incidental Take of any such Additional State Protected Species. CDFG shall make reasonable efforts to review and process the application for an amendment to the Section 2081 Permit or a new Section 2081 Permit to authorize Incidental Take of an Additional State Protected Species to ensure, to the extent consistent with CESA, that the Incidental Take authorization is effective at the time the Covered Species is accepted and designated as a candidate species under CESA.
(a) The Parties expressly acknowledge that it is the intent of this Agreement that the Mitigation Lands will be administered so as to enhance their Habitat Values for all the Covered Species reasonably expected to be found in the Permit Areas. (b) To the extent permitted by the CESA, the CDFG shall consider the NBHCP and this Agreement in any future determination by the CDFG with regard to the listing of one or more of the currently unlisted Covered Species as an endangered species or threatened species pursuant to the CESA.
6.2.5 Changed Conditions. For the purposes of this Agreement, the term “Changed Conditions” shall have the same meaning as expressed in CESA and its related implementing regulations in Title 14 of the California Code of Regulations, commencing with section 783.0. Prior to making a finding of Changed Conditions, CDFG shall provide notice to CITY, SUTTER, TNBC and other Parties hereto of any proposed amendments to this Agreement which CDFG proposes to remedy the Changed Condition. CDFG shall, to the extent feasible, meet with CITY, SUTTER, TNBC, and other Parties hereto at least ninety (90) days prior to making a finding of Changed Conditions to provide such parties with an opportunity to submit their comments and suggested revisions to the proposed amendment.
6.3 Limits on Future Revisions to NBHCP. The Parties acknowledge that the NBHCP expressly provides for revisions to the Plan’s Operating Conservation Program and Mitigation Lands as a result of monitoring results collected from the Plan Area, peer-reviewed new scientific information, or future recovery plans for the Covered Species, as part of the Adaptive Management program, in response to Changed Circumstances and for any other cause identified in Chapter VI of the NBHCP, provided that such revisions comply with Chapter VI of the NBHCP. Such revisions are provided for under the Plan and are therefore not subject to the restrictions on additional Mitigation contained in USFWS’s No Surprises Rule or agreed to by CDFG, nor do such revisions require amendment of the Plan or the Permits. Notwithstanding the above, such revisions shall be subject to the following limitations unless such limitations are waived in writing by CITY, SUTTER and TNBC.
20 wc-83845
(a) The modifications shall not require more than 75 percent of the Mitigation Lands to be converted to or maintained as managed marsh; and (b) The modifications shall not require the Mitigation Ratio to be greater than 0.5 acre mitigation to 1.0 acre development. (c) The modifications shall comply with the requirements, limitations and restrictions specified in Chapter VI of the NBHCP.
6.4 Reservation of Rights Re: Subsequent Listing of Species. This Agreement shall not be construed as a waiver of any rights or objections that any of the Parties hereto or Urban Development Permittees may have with respect to the proposed listing of any Candidate Species under the ESA or CESA or of any of the other Covered Species described in this Agreement. The Permittee and the Urban Development Permittees reserve their right to oppose any formal listing of any Candidate Species or other Covered Species pursuant to the ESA or CESA. Likewise, nothing in this Agreement is intended, nor shall be construed to limit the authority of USFWS or CDFG to enforce or otherwise carry out their respective responsibilities under the federal or state Endangered Species Acts and other applicable federal and state laws.
6.5 Land Use Authority. Nothing in the NBHCP or in this Agreement shall be interpreted or operate in a manner that expressly or impliedly diminishes or restricts the local land use authority of CITY and SUTTER. Notwithstanding the foregoing sentence, CITY and SUTTER acknowledge that they have chosen to implement several of the commitments made by them under the NBHCP through the exercise of their respective land use authorities. Therefore, a failure of CITY or SUTTER to exercise their land use authorities in a manner consistent with their obligations under the NBHCP could compromise the effectiveness of the Plan, would trigger a reevaluation of the Plan and their respective Permits and could result in suspension or revocation of such Permits as set forth in Section 7.6 of this Agreement.
6.6 No Liability. All Parties hereto agree that under no circumstances shall CITY, SUTTER and TNBC have any liability whatsoever for any debts, liabilities or financial obligations incurred by another Permittee under the NBHCP. Notwithstanding the foregoing sentence CITY and SUTTER acknowledge that they are obligated under their Permits to fully implement the NBHCP, including funding each of the obligations assigned to TNBC as the Plan Operator under the NBHCP. Therefore, a failure of CITY or SUTTER to fully fund TNBC’s obligation under the Plan could compromise the effectiveness of the Plan, would trigger a reevaluation of the Plan and CITY, SUTTER and TNBC’s respective Permits and could result in suspension of revocation of such permits pursuant to Section 7.6 of this Agreement.
7 AMENDMENTS AND REMEDIES
7.1 Revisions and Amendments to the NBHCP. Revisions to the NBHCP shall be implemented in accordance with Chapter VI of the Plan. Revisions shall not require Amendment of the Plan or Permits. Amendments to the NBHCP shall require amendment of the Permits and shall be processed in accordance with the amendment provisions of Chapter VI of the Plan and all applicable laws and regulations.
7.2 Amendments to Agreement. This Agreement may be amended only by written document signed by all of the Parties.
7.3 Land Use Ch anges. The Parties to this Agreement agree that the adoption and amendment of General Plans, Specific Plans, Community Plans, zoning ordinances and similar ordinances, and the granting of implementing land use entitlement by CITY or SUTTER pertaining to land in their respective Permit Areas, shall be matters within the sole discretion of CITY and SUTTER, and shall not require amendments to this Agreement or the approval of the other Parties to this Agreement. No such action by CITY or SUTTER shall in any way alter or diminish its obligations under this Agreement and the NBHCP. Notwithstanding the foregoing sentences, CITY and SUTTER acknowledge that they have chosen to implement several of the commitments made 21 wc-83845
by them under the NBHCP through the exercise of their respective land use authorities. Therefore, a failure of CITY or SUTTER to exercise their land use authorities in a manner consistent with their obligations under the NBHCP could compromise the effectiveness of the Plan, would trigger a reevaluation of the Plan and their respective Permits and could result in suspension or revocation of such Permits as set forth in Section 7.6 of this Agreement.
7.4 Remedies in General. The Parties acknowledge that each of the Covered Species is unique and that the loss of any of the Covered Species would be irreparable and that therefore injunctive and/or temporary relief may be appropriate in certain circumstances involving a breach of this Agreement. Notwithstanding any other provision of this Agreement, the Parties shall not be liable in monetary damages to any Party or any person for any breach of this Agreement, in the performance or failure to perform a mandatory or discretionary obligation imposed by this Agreement, or any other cause of action arising from this Agreement. Subject to the foregoing, the Parties shall have all of the remedies available in equity (including specific performance and injunctive relief) and at law to enforce the terms of this Agreement and the Section 10(a)(1)(B) Permit and Section 2081 Permit and to seek remedies for any breach thereof, consistent with and subject to the terms of this Agreement. It is expressly understood by the Parties that monetary damages will not provide an adequate remedy for material breach of this Agreement.
7.5 Third Party Enforcement. This Agreement shall not create in the public, any member of the public, or any other person or entity, including any Urban Development Permittee, any rights under this Agreement, nor shall it authorize anyone not a signatory to this Agreement to maintain a suit (1) in equity or law to enforce the terms of this Agreement and/or the NBHCP, Section 10(a)(1)(B) Permit or Section 2081 Permit, or (2) for compensation or damages under the provisions of the Agreement, NBHCP, or Permits.
7.6 Suspension or Revocation.
7.6.1 Suspension or Revocation by USFWS. The Parties acknowledge that the USFWS has the authority to suspend or revoke any of the Section 10(a)(1)(B) Permits, in whole or in part, in the event of a material violation of the Section 10(a)(1)(B) Permit and pursuant to any applicable federal laws or regulations that govern the permitted activity. The regulations found at 50 C.F.R. §§13.27 - 13.29 and 17.22(b)(8), or any successor regulations, shall govern the suspension or revocation of the Section 10(a)(1)(B) Permit issued by the USFWS.
7.6.2 Suspension or Revocation by CDFG. The Parties acknowledge that CDFG shall have the authority to suspend or revoke the Section 2081 Permit in the event of a material breach or violation of the Section 2081 Permit or any applicable California laws or regulations governing the permitted activity.
7.6.3 Status of Urban Development Permittees after Suspension or Revocation.
Notwithstanding the suspension or revocation of a Permittee’s Permit, CITY and SUTTER shall remain liable under this Agreement to carry out all of their responsibilities under the Permits and this Agreement arising from any Authorized Development approved, authorized, or carried out by CITY or SUTTER, within their respective Permit Areas between the Effective Date of the Agreement and the date a Permittee’s Permit is suspended or revoked. As to any Authorized Development project approved or authorized by CITY or SUTTER prior to the Permit suspension or revocation and that is in compliance with the Permit, but as to which construction activity has not commenced as of the suspension or revocation, so long as CITY or SUTTER and the Urban Development Permittee, if any, continue to fulfill their obligations under the Permit, the Permit shall continue in effect for that Authorized Development project until that project is completed.
7.6.4 No Further Approvals by Permittees. Subject to the provisions of section
7.6.3 above, if a Permit is suspended or revoked, CITY and SUTTER shall not have the authority to rely upon the Permit to approve or carry out any actions that would violate the ESA or CESA in the absence of such Permit. Notwithstanding the suspension or revocation, CITY and SUTTER shall remain fully liable under the Permits and this Agreement to carry out all of their responsibilities, 22 wc-83845
including the Mitigation Requirement, under the NBHCP, the Permits and this Agreement arising from Authorized Development approved, authorized or carried out by an Urban Developm ent Permittee within the respective Permit Areas between the Effective Date and the date the Permit is suspended or revoked.
7.6.5 Severability. The violation by CITY or SUTTER of their respective Permits shall not adversely affect or be attributed to, nor shall it result in the loss or diminution of any right, privilege or benefit under a Permit held by a non-responsible Permittee. Nor shall CITY and SUTTER be deemed to have violated the Permits solely as a consequence of the actions of an Urban Development Permittee or other third person subject to CITY’s or SUTTER’s jurisdiction and control, so long as CITY or SUTTER takes all necessary and appropriate steps, if any are available, to halt and correct the violation in accordance with this Agreement and consistent with their police powers and local land use authority. However, the violation by TNBC of its Permits shall be considered a failure by CITY and SUTTER to implement their obligations of the Operating Conservation Program under the NBHCP. In such event, CITY and SUTTER’s Permits shall not be revoked or suspended, if CITY and/or SUTTER implement corrective measures in accordance with Section 3.1.11 of this Agreement. Notwithstanding the above, to the extent that action or inaction by a Permittee, an Urban Development Permittee or other third party subject to CITY’s or SUTTER’s jurisdiction and control, or TNBC prevents proper implementation of the NBHCP or compliance by one or more of the remaining Permittees with their Permits or results in a determination by the USFWS or CDFG that continuation of the Permits would appreciably reduce the likelihood of the survival and recovery of a Covered Species in the wild, such Permits may be suspended or revoked in accordance with applicable USFWS and CDFG regulations.
7.6.6 Validity of Permits. In the event a court of competent jurisdiction invalidates either City, County’s or TNBC’s Section 10(a)(1)(B) or Section 2081 Permits with regard to one or more Covered Species, other than the Giant garter snake or Swainson’s hawk, such action shall not be construed to invalidate the permits with regard to the remaining Covered Species. The requirements of the State and Federal Incidental Take Permits and the NBHCP shall continue to be implemented by each Permittee with regard to the remaining Covered Species. 8 MISCELLANEOUS
8.1 Term of Agreement. This Agreement shall remain in effect for a period of fifty (50) years from the Effective Date.
8.2 Termination
8.2.1 Termination by Mutual Consent. CITY or SUTTER may, by mutual agreement with the Wildlife Agencies, terminate this Agreement as to itself. In the event that such mutually agreed-upon termination occurs, a written termination agreement shall be executed to ensure that the mitigation required under the NBHCP and this Agreement for all Authorized Development approved, authorized or carried out prior to termination is carried out. Upon execution of such agreement and surrender of the Permits to the Wildlife Agencies, no further take shall be authorized under the terms of the surrendered Permits.
8.2.2 Termination by USFWS or CDFG. The USFWS or CDFG may terminate this Agreement upon revocation of the Section 10(a)(1)(B) Permit or the Section 2081 Permit in accordance with Section 7.6.
8.2.3 Termination by the T NBC. The TNBC may terminate voluntarily its participation under this Agreement only if it has an agreement to do so with the CITY, SUTTER, USFWS and CDFG. Any agreement allowing TNBC to terminate its participation and its status as Plan Operator, shall contain provisions for assuring that the provisions of the NBHCP will be implemented.
8.2.4 Effect of Termination. In the event this Agreement is terminated by the USFWS or CDFG with respect to a Permittee, that Permittee’s Section 10(a)(1)(B) Permit or 23 wc-83845
Section 2081 Permit, as applicable, shall, subject to Section 8.2.1 above, be void. CITY and SUTTER acknowledge that, although the NBHCP Operating Conservation Program would mitigate for effects resulting from the Land Use Agencies’ Covered Activities, because the percentage of uplands to wetlands differs between their respective Permit Areas, the NBHCP allows for the Operating Conservation Program provided for under the NBHCP to be reevaluated and revised in the event either CITY’s or SUTTER’s Permits are terminated or revoked to ensure that the configuration of Mitigation Lands provided for under the NBHCP continues to adequately mitigate for the impacts of Authorized Development in the remaining jurisdiction.
8.2.5 Status of Mitigation Lands Upon Termination. The Mitigation Lands are to be established in perpetuity. Management of the Mitigation Lands by TNBC in accordance with the NBHCP shall continue in perpetuity, notwithstanding termination, suspension or revocation of CITY’s or SUTTER’s Section 10(a)(1)(B) Permit or Section 2081 Permit for any reason, unless the suspension or revocation of CITY’s or SUTTER’s Permits is due to a violation by TNBC of its Permits. TNBC’s management activities shall be funded from the Mitigation Fees collected on account of past Authorized Development under the Permits which includes endowment components to fund permanent management. None of the assets of the TNBC, including lands or interests in land may be transferred, conveyed, or assigned to any person or entity, except as specified in Sections 3.2.11 and Section 3.2.12 of this Agreement. However, take previously authorized through Urban Development Permits or for public or private projects for which the Mitigation Requirement was been completed or is otherwise assured shall continue to be authorized. In the case of the federal Permit, upon notification from the Service that implementation of all minimization and mitigation measures identified in the termination agreement have been implemented, the permit shall be deemed canceled.
8.3 Binding Effect. The terms, provisions and conditions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and assigns.
8.4 Notices. Any notice required or permitted to be given hereunder shall be in writing, shall be deemed made upon receipt, and shall be given by personal delivery or by certified mail/return receipt requested, addressed to the Parties as follows:
City of Sacramento
915 I Street, Room 109
Sacramento, CA 95814
Attn: City Manager
County Administrative Officer
County of Sutter
1160 Civic Center Blvd., Ste. A
Yuba City, CA 95993
United States Fish and Wildlife Service
Office of the Regional Director
Portland, OR 97232
with a copy to:
Field Supervisor
U.S. Fish and Wildlife Service
3310 El Camino Avenue, Suite 130
Sacramento, CA 95821-6340
24 wc-83845
California Department of Fish and Game Office of the Director 1416 9th Street, 12th floor
Sacramento, CA 95814
with copies to:
General Counsel
California Department of Fish and Game
1416 9th Street, 12th floor
Sacramento, CA 95814
and to:
Regional Manager
California Department of Fish and Game
1701 Nimbus Road, Suite A
Rancho Cordova, CA 95670
The Natomas Basin Conservancy
1750 Creekside Oaks Dr., Suite 290
Sacramento, CA 95833
Attn: Executive Manager
Any Party may give notice to the others specifying a different address for notice purposes.
8.5 Captions. The headings of the various sections hereof are for convenience only, and shall not affect the meaning of any provisions of this Agreement.
8.6 Counterparts. This Agreement may be executed in multiple counterparts, all of which shall constitute but one and the same instrument.
8.7 Governing Law. This Agreement shall be governed by and construed in accordance with the ESA, the CESA, and other applicable state and federal laws. In particular, nothing in this Agreement is intended to limit the authority of USFWS to fulfill its responsibilities under the ESA or CDFG under CESA or other applicable law, including but not limited to seeking penalties against CITY, SUTTER or TNBC. Moreover nothing in this agreement is intended to limit the legal responsibilities of USFWS as an agency of the federal government or CDFG as an agency of the State of California.
8.8 Complete Agreement. This Agreement, together with the NBHCP, constitutes the full and complete agreement between the Parties concerning the subject matter hereof and supersedes any prior or contemporaneous agreements or understandings, whether oral or written, all of which shall be deemed to have been merged herein, it being the intention of the Parties that this be a completely integrated agreement. Specifically, this Agreement shall supercede the Implementation Agreement executed in December, 1997.
8.9 Federal Section 7 Consultations. Nothing in this Agreement is intended to eliminate or modify the obligation of a federal agency to consult with the USFWS pursuant to section 7(a) of the ESA (16 U.S.C. Section 1536(a)). To the maximum extent appropriate, in any consultation 25 wc-83845
under said provision involving CITY or SUTTER or a prospective or other Urban Development Permittee with regard to Covered Species, the USFWS shall ensure that the biological opinion issued in connection with the proposed public or private Project which is the subject of the consultation is consistent with the biological opinion issued in connection with the NBHCP, provided that the proposed public or private Project is consistent with the NBHCP. Any biological measures included under the terms and conditions of the Section 7 biological opinion shall, to the maximum extent appropriate, be consistent with the Mitigation Requirement imposed by CITY or SUTTER under the NBHCP as implemented by this Agreement, provided that, unless otherwise required by law, the USFWS shall not impose additional mitigation measures on the project proponent in excess of those that have been or will be required by the CITY or SUTTER pursuant to the NBHCP, this Agreement and the Permits.
8.10 Conflict with NBHCP. The NBHCP and each of its terms are intended to be, and by this reference are, incorporated herein. In the event of any contradiction, conflict or inconsistency between the terms of this Agreement and the NBHCP, the terms of this Agreement shall control. In all other cases, the terms of this Agreement and of the NBHCP shall be interpreted to be supplementary to each other. Where interpretation is required, this Agreement shall be interpreted as a vehicle for implementation of the NBHCP.
8.11 Other Permittees. The failure of other Potential Permittees identified in the NBHCP to obtain Permits shall not preclude this Agreement from going into effect within the geographical boundaries of each Permittee , or on lands Acquired by the NBC, nor preclude the issuance of the Permits to such other Potential Permittees or to subsequent signatories of this Agreement.
8.12 Federal Appropriations . USFWS’s commitment to provide technical assistance under the NBHCP and to implement this Agreement, including the assurances provided herein, are 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 U.S. Treasury. The parties acknowledge that the 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.
8.13 State Appropriations. Implementation of this Agreement and the NBHCP and the assurances provided herein, 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 that CDFG will not be required under this Agreement to expend any State of California agency’s appropriated funds unless and until an authorized official of that agency affirmatively acts to commit to such expenditures as evidenced in writing.
8.14 References to Regulations. Any reference in this Agreement, the NBHCP, or the Permits to any regulation or rule of USFWS or CDFG shall be deemed to be a reference to such regulation or rule in existence at the time the action is taken.
8.15 Applicable Laws. All activities undertaken pursuant to this Agreement, the NBHCP or the Permit must be in compliance with all applicable state and federal laws and regulations.
8.16 No Partnership. Neither this Agreement nor the NBHCP shall make or be deemed to make any party to this Agreement the agent for or the partner of any other party.
8.17 Elected Officials Not to Benefit . No member of or delegate to Congress shall be entitled to any share or part of this Agreement, or to any benefit that may arise from it. 26 wc-83845
EXHIBIT A: DEFINITIONS
NBHCP Definitions
Terms used in the NBHCP and Implementation Agreement shall have the same meaning as those same terms have under the ESA and CESA, except as set forth below. Capitalized terms used but not defined herein, but which are defined in the Plan, shall have the meanings specified in the Plan.
1. Adaptive Management. The term “Adaptive Management” means a method for examining alternative strategies for meeting measurable goals and objectives, and then, if necessary adjusting future conservation management actions according to what is learned to achieve those goals and objectives.
2. Amendment. The term “Amendment” shall refer to significant changes to the NBHCP, Implementation Agreement and/or Incidental Take Permit for circumstances as described in Chapter VI, Section 3(b) of the NBHCP. Amendments include activities which are more significant than and different from revisions (see also “Revisions”).
3. Area B (Out of Basin Mitigation Area). Area B shall refer to lands identified on Figure 20 of the HCP in which TNBC may pursue acquisition of Mitigation Lands under the specific terms described in Chapter IV, Section 2.b of the HCP, with approval of USFWS and CDFG.
TNBC shall account for all acreage acquired in Area B to ensure that the total amount of such lands does not exceed 20 percent of the total Mitigation Lands. The additional requirements for acquisition of mitigation lands in Area B (out of basin) apply only to Area B and do not apply to any acquisitions of mitigation lands located within the Natomas Basin or the outer “ring” of the Natomas Basin defined as the land bounding the Natomas Basin and extending to the edge of the water immediately outside the Natomas Basin levees. (Note: During the final NBHCP approval process by the City Council of the City of Sacramento and the Board of Supervisors of Sutter C o u n ty , a u th o riz a tio n to p u rc h a s e M itig a tio n L a n d s to o ffs e t th e im p a c ts o f d e v e lo p m e n t w a s lim ite d to th e N a to m a s B a s in a n d th e “o u te r” rin g a ro u n d th e le v e e s o f th e N a to m a s B a s in . N o a u th o riz a tio n to p u rc h a s e la n d s to m itig a te im p a c ts o f A u th o riz e d Development in Area B (out of basin) was granted by the City Council and the Board of Supervisors.)
4. Authorized Development. The term “Authorized Development” means that development for which incidental take is authorized for the City of Sacramento and Sutter County under this NBHCP. Authorized Development is limited to a total of 15,517 acres of Planned Development (as further defined below in Section III.A) under the NBHCP. Included within the City’s 8,050 acre portion of the Authorized Development are 28 acres of infrastructure development associated with the Metro Air Park (MAP) project in Sacramento County.
Included within Sutter County’s 7,467 acres of Authorized Development is 16.5 acres of proposed drainage channel improvements located within Sacramento County. Incidental take resulting from the 1,983 acre MAP project, including the 28 acres located in the City of Sacramento, is covered by separate incidental take permits issued by the Wildlife Agencies.
The 15,517 acres of Authorized Development related incidental take within the City and Sutter County combined with the 1,983 acres of development related take within Sacramento County for the MAP project represent a total of 17,500 acres of potential urban development in the Natomas Basin which has been analyzed in the NBHCP as Planned Development, as further defined below. Any development within the City of Sacramento 29 wc-83845
beyond the 8,050 acres to be covered under its incidental take permits, within Sutter County, beyond the 7,467 acres to be covered under its incidental take permits, or within Sacramento County beyond the MAP project, will not be covered under the respective incidental take permits and will trigger a reevaluation of impacts to and mitigation for biological and other resources in the Natomas Basin and amendment of the NBHCP and the incidental take permits or development of a new HCP and issuance of new incidental take permits to address such impacts and mitigation as appropriate.
5. Biological Monitoring. The term “Biological Monitoring” means the mandatory element of all HCPs that is designed and implemented to provide the information necessary to assess compliance and project impacts, and verify progress toward the biological goals and objectives for the Plan’s Covered Species and habitats.
6. Biological Monitoring Plan. Refers to specific monitoring requirements to be conducted in the Natomas Basin as specified in Chapter VI, Section E, Subsection 2, and includes both the overall NBHCP Biological Effectiveness Monitoring Program and the Site Specific Biological Monitoring Programs.
7. Changed Circumstances. This term “Changed circumstances” is defined in Title 50 of the Code of Federal Regulations, Section 17.3 as changes in circumstances affecting a species or geographic area covered by the NBHCP that can reasonably be anticipated by Plan Participants and the USFWS, and that can be planned for (e.g., the listing of a new species, or a fire or other natural catastrophic event in areas prone to such events.)” Changed circumstances addressed in NBHCP are outlined in Chapter VI, Section K of the HCP.
8. Compliance Monitoring . The term “Compliance Monitoring” means an itemized, task specific method of verifying that the Permittee is carrying out the terms of the NBHCP, Permit and IA.
9. Conservation Measures. The term “Conservation Measures” means that accepting and conveying developer mitigation fees, and possibly land dedications, as required under the NBHCP, the Land Use Agencies shall implement a variety of measures that will avoid, minimize or mitigate the take of Covered Species.
10. Covered Activities. The term “Covered Activities” means the Land Use Agencies Covered Activities and the TNBC Covered Activities.
11. Covered Activities, Land Use Agencies. The term “Land Use Agencies Covered Activities” refers to those specific activities identified at Chapter I, Section N.(1) of the NBHCP for which each Land Use Permittee shall be provided coverage under the federal Section 10(a)(1)(B) permits, and the State Section 2081 Permits. Covered Activities generally means the conversion from vacant land or agricultural uses to residential, commercial, and industrial uses, including related public and private infrastructure development and improvements by the City or Sutter County.
12. Covered Activities, TNBC . The term “TNBC Covered Activities” means those activities conducted by TNBC on behalf of the City, Sutter County and other Permittees who may obtain take authorization pursuant to the NBHCP or an HCP based on the NBHCP, within TNBC’s Permit Area. These activities include acquisition, habitat creation, restoration, 30 wc-83845
preservation, enhancement, management and monitoring activities within Conserved Habitat Areas. TNBC’s Covered Activities are described at Chapter I, Section N (3) of the NBHCP.
13. Covered Activities, Water Agencies. The term “Water Agencies Covered Activity” refers to those specific activities identified in Chapter I, Section N (2) of the NBHCP for which each Water Agency Permittee shall be provided coverage under the federal Section 10(a)(1)(B) permits, and the State Section 2081 Permits. Such Covered Activities generally include physical maintenance and operation of the Water Agencies’ existing facilities located within the Plan Area, including channel maintenance, vegetation control (where no herbicides are utilized), and construction or improvement of facilities where there is no increase to the footprint of the existing facility.
14. Covered Species. The term "Covered Species" means the Federally Protected Species, State Protected Species and the Other Species identified within Table I-1 hereto.
15. ESA and CESA. The term "ESA" means the Federal Endangered Species Act of 1973, as amended. The term "CESA" means the California Endangered Species Act, as amended.
16. Exempt Area. The term refers to areas within the Natomas Basin, within the City of Sacramento which are already approved for development or already developed and as shown on Exhibit B of the Implementation Agreement.
17. Federally Protected Species. The term "Federally Protected Species" means those plants and animals listed by the United States (“U.S.”) under the provisions of ESA and shown as Covered Species on Table I-1 hereto that are found, or may be found, in the Permit Areas, as well as those other Covered Species listed on Table I-1 that the USFWS may list in the future.
18. Five Point Policy. The term “Five Point Policy” refers to an addendum to the HCP Handbook published by the Fish and Wildlife Service and the National Marine Service on June 1, 2000.
The five point policy addendum provides clarifying guidance for conducting the incidental take permit program and for those applying for an incidental take permit under section 10(a)(1)(B) of the Endangered Species Act (ESA).
19. Habitat Values. The term "Habitat Values" means the capability of a land or water area or associated areas, where indigenous plant(s) or animal(s), individually or collectively, may occur and upon which the Covered Species are dependent, in whole or in part, to provide for some or all of their maintenance, growth and reproduction.
20. Implementation Annual Meeting. The term refers to the annual public meeting held jointly with TNBC, other Permittees, USFWS and CDFG to report on the progress of the HCP Conservation Strategy as described in Chapter VI. G of the NBHCP.
21. Implementation Annual Report. The term refers to the annual report prepared by the TNBC describing the compliance and effectiveness monitoring processes and findings and the status of the progress in implementing the NBHCP in accordance with the requirements of Chapter VI, Section G of the NBHCP.
31 wc-83845
22. Incidental Take. The term "Incidental Take" means any taking of Covered Species that is incidental to, and not the purpose of, the carrying out of otherwise lawful activity.
23. Incidental Take Permits. The terms “Incidental Take Permits,” “ITPs” and “Permits” mean the individual permits issued to each Permittee subject to Section 10(a)(1)(B) of the Endangered Species Act and Section 2081 of the California Endangered Species Act.
24. Independent Mid-Point Review. This term refers to the required review and evaluation of the effectiveness of the HCP by each of the land use agencies at a defined mid-point in the approval of Authorized Development and as more specifically defined in Chapter VI, Section J of the NBHCP.
25. Land Use Agencies. The term “Land Use Agencies” means the City of Sacramento and Sutter County. If and when Sacramento County submits and receives approval of its own ITP, Sacramento County would be considered a Land Use Agency as defined herein.
26. MAP (Metro Air Park) Habitat Conservation Plan (MAP HCP) . This term refers to the a
pproved Habitat Conservation Plan for the Metro Air Park Project located in the unincorporated portion of the Natomas Basin within Sacramento County, specifically, “Habitat Conservation Plan for the Metro Air Park Project in the Natomas Basin, Sacramento County, California, Prepared by Metro Air Park Property Owner’s Association, Dated 2001.”
27. Mitigation Fees. As defined in Chapter VI, the term "Mitigation Fees" means the one time, up-front fees levied upon an Authorized Development site (in gross acres) that is used to pay for the Mitigation Land acquisition, enhancement, management, monitoring, and other activities required under the NBHCP. The Mitigation Fees must be paid prior to the issuance of an Urban Development Permit by the Land Use Permittee. The components of the Mitigation Fee include: Land Acquisition, Restoration/Enhancement/Monitoring, Administration O&M, O&M Endowment Fund, Supplemental Endowment Fund, and Fee Collection Administration as defined in Chapter VI.
28. Mitigation Lands. The term “Mitigation Lands” means the reserve lands acquired through collection and use of Mitigation Fees from Authorized Development, and in some cases land which has been accepted for dedication from Authorized Development, which will be set aside and managed at a ratio of one-half (½) acre of land protected or preserved for every one (1) acre of land converted to Authorized Development. The NBHCP Operating Conservation Program will result in 8,750 acres of Mitigation Lands to be established and managed by TNBC.
29. Mitigation Ratio. The term “Mitigation Ratio” means mitigation for the conversion of land in the respective Permit Areas to Authorized Development at a ratio of one-half (½) acre of land protected or preserved for every one (1) acre of land converted to Authorized Development.
30. Mitigation Requirement . The term “Mitigation Requirement” means the mitigation requirement for each public and private project is determined by applying the Mitigation Ratio to the land area converted to Authorized Development as calculated in accordance with the requirements set forth in Chapter VI, Section 1. 32 wc-83845
31. Natomas Basin. "Natomas Basin" or "Basin" means that geographical area depicted in Figure 2, Natomas Basin and Affected Jurisdictions.
32. Natomas Basin Habitat Conservation Plan . The terms “Natomas Basin Habitat Conservation Plan,” “NBHCP” and “the Plan” mean the year 2002 version of the Natomas Basin Habitat Conservation Plan prepared for the City of Sacramento, Sutter County, The Natomas Basin Conservancy (TNBC), RD 1000 and Natomas Mutual.
33. Natomas Basin Habitat Conservation Plan, 1997 . The terms “1997 NBHCP” and “1997 Plan” mean the previously approved City of Sacramento Natomas Basin HCP that was the original basis for this 2002 NBHCP.
34. No Surprises Rule. The term “No Surprises Rule” refers the terms and conditions specified in the February 28, 1998, the U.S. Fish and Wildlife final rule codifying its “No Surprises” policy into federal regulation (63 FR 8859). The “No Surprises” rule states, in part, that: “In negotiating unforeseen circumstances, the [Service] will not require the commitment of additional land, water or financial compensation or other natural resources beyond the level otherwise agreed upon for the species covered by the conservation plan without the consent of the Permittee. If additional conservation and mitigation measures are deemed necessary to respond to unforeseen circumstances, the [Service] may require additional measures of the Permittee where the conservation plan is being properly implemented, but only if such measures are limited to modifications within conserved habitat areas, if any, or to the Conservation Plan’s Operating Conservation Program for the affected species, and maintain the original terms of the Conservation Plan to the maximum extent possible. Additional conservation and mitigation measures will not involve the commitment of additional land, water or financial compensation or restrictions on the use of land, water, or other natural resources otherwise available for development or use under the original terms of the conservation plan, without the consent of the Permittee.” (50 C.F.R. Sections 17.22(b)(5)(iii) and 17.32(b)(5)(iii).) The No Surprises Rules is discussed in Chapter VI, Section K of the NBHCP.
35. Operating Conservation Program. The term “Operating Conservation Program” means the totality of the conservation and management measures provided for under the NBHCP to avoid, minimize, mitigate and monitor the impacts of take of the Covered Species as described in Chapters IV through VI of the Plan. The Operating Conservation Program includes totals the Permittees reporting obligations under the Permits and responses to Changed Circumstances described in Chapter VI.
36. Overall Program Review. This term refers to a required program review of the effectiveness of the Operating Conservation Program to be initiated at the point Urban Development Permits covering a total of 9,000 acres of development in the Natomas Basin have been issued by the Land Use Permittees and by Sacramento County for the Metro Air Park. The areas to be covered by the Overall Program Review are specified and described in Chapter VI, Section I of the NBHCP.
37. Permit Area, City of Sacramento . The term “Permit Area” as applied to the City of Sacramento means that area designated on Figure 2 of the NBHCP Implementation Agreement that totals 8,050 acres located within the City of Sacramento city limits and in 33 wc-83845
certain locations (i.e., the Panhandle Annexation Area) within the unincorporated areas of Sacramento County. Incidental take authority for the City of Sacramento is limited to this Permit Area.
38. Permit Area, County of Sutter. The term “Permit Area” as applied to Sutter County means that area designated on Figure 2 of the NBHCP Implementation Agreement that totals 7,467 acres located within the unincorporated areas of Sutter County, and approximately 16.5 acres located within unincorporated Sacramento County. Incidental take authority for Sutter County is limited to this Permit Area.
39. Permit Area, Natomas Mutual . The term “Permit Area” as applied to Natomas Mutual means canals, ditches, waterways, ponds and open water areas, as well as roads, right-of- ways, facilities, maintenance yards, pumps, pipelines, and water detention facilities, under the direct jurisdiction of Natomas Mutual and inside the inner toe of levees surrounding the Natomas Basin, but not including the Sacramento River levees. Incidental take authority for Natomas Mutual is limited to this Permit Area.
40. Permit Area, RD 1000 . The term “Permit Area” as applied to RD 1000 means canals, ditches, waterways, ponds and open water areas, as well as roads, right-of-ways, facilities, maintenance yards, pumps, pipelines, and water detention facilities, under the direct jurisdiction of RD 1000 and inside the inner toe of levees surrounding the Natomas Basin, but not including the Sacramento River levees. Incidental take authority for RD 1000 is limited to this Permit Area.
41. Permit Area, TNBC. The term “Permit Area” as applied to The Natomas Basin Conservancy (TNBC) consists of all lands within the Natomas Basin (the Plan Area), as well as the land bounding the Natomas Basin and extending to the edge of water immediately outside the Natomas Basin levees and Area B as depicted on Figure 20, Out of Basin Mitigation Areas.
42. Permittees. The term "Permittees" means the City of Sacramento, Sutter County, RD 1000, Natomas Mutual and The Natomas Basin Conservancy.
43. Plan Area. The term “Plan Area” means the entire 53,537 acres of land within the inside toe of levee of the Natomas Basin levees. The Plan Area refers to the portion of the Natomas Basin that is bounded on the west by the Sacramento River, on the north by the Natomas Cross Canal, on the east by Steelhead Creek (formerly known as Natomas East Main Drain Canal), and on the south by the Garden Highway.
44. Planned Development . The term “Planned Development” means the Authorized Development plus the development of the 1,983 acre Metro Air Park, which is subject to the Metro Air Park Habitat Conservation Plan (“MAP Authorized Development”)
45. Plan Operator. The term “Plan Operator” means The Natomas Basin Conservancy, the entity responsible for implementing the NBHCP.
46. Plan Participants . The term “Plan Participants” means parties actively involved in implementing the NBHCP, including the Wildlife Agencies (USFWS and CDFG), the Permittees (City of Sacramento, Sutter County, Natomas Mutual and RD 1000), and the Plan Operator (TNBC).
34 wc-83845
47. Potential Permittees. The term “Potential Permittees” refers to additional entities within the Natomas Basin that may decide to commit to the terms of the NBHCP and the Implementation Agreement and, through the issuance of Permits by the Wildlife Agencies, join as full Permittees at a future date.
48. Protected Species. The term "Protected Species" means those plants and animals listed under the State CESA and the Federal ESA.
49. Qualified Biologist. The term “qualified biologist” shall refer to a biologist which meets the training and experience requirements necessary to conduct assessments or surveys for specific species, and who has been approved by the Wildlife Agencies to conduct those assessments or surveys.
50. Reintroduction. The term “reintroduction” as used in the NBHCP refers to relocating i
ndividuals (or seeds or cysts, etc) of a Covered Species: (1). Either from one TNBC Reserve Site to another TNBC Reserve Site or from one location on a TNBC Reserve Site to a new location within the same TNBC Reserve Site; or (2) the relocation of an individual of a Covered Species from a site which will be impacted by Authorized Development to a TNBC Reserve Site to avoid, minimize or mitigate the impacts to Covered Species. The term “reintroduction” as used in the Natomas Basin HCP refers to the movement of animals or plants within the Basin and does not refer to the intentional introduction or recolonization of Covered Species from outside the Basin to inside the Basin.
51. Revisions. Refers to minor changes to the NBHCP as specified in Chapter VI, Section 3.a of the NBHCP. Revisions to the NBHCP are changes to the Plan provided for under the Operating Conservation Program, including Adaptive Management changes and Mitigation Fee adjustments. These revisions would not result in operations under the NBHCP that are significantly different from those analyzed in connection with the NBHCP as approved, result in adverse impacts on the environment that are new or significantly different from those analyzed in connection with the NBHCP as approved.
52. Section 10(a)(1)(B) Permits. The terms "Section 10(a)(1)(B) Permits" or "Permits" as used in this Plan means the permits issued by the USFWS under Section 10 (a)(1)(B) of the ESA which authorize the incidental take of a Covered Species which may occur as a result of urban development activities, including public facilities projects, within the City of Sacramento and Sutter County, or as a result of the operation and/or maintenance, including the construction and improvements with no significant increase to the existing footprint, of flood control or water supply activities, water ditches, canals, pumphouses, maintenance facilities, or other ancillary facilities within the Natomas Basin, or as a result of habitat management, enhancement, or restoration activities on reserve lands. "Permit" may also be used in this Plan to collectively refer to the Section 10(a)(1)(B) Permits, and the Section 2081 Permits.
53. Section 2081 Permits. The terms "Section 2081 Permits” or “Permits” means the permits for the incidental take of threatened and endangered species, listed under the CESA, issued by the CDFG under Section 2081(b) and/or 2081.1 of the California Fish and Game Code, or any successor section to authorize the incidental take of a Covered Species which may occur as a result of urban development activities, including public facilities projects, within 35 wc-83845
the City of Sacramento and Sutter County, or as a result of the operation and/or maintenance, including the construction and improvements with no significant increase to the existing footprint, of flood control or water supply activities, water ditches, canals, pumphouses, maintenance facilities, or other ancillary facilities within the Natomas B asin, or as a result of habitat management, enhancement, or restoration activities on reserve lands. "Permits" may also be used in this Agreement to refer collectively to the Section 10(a)(1)(B) Permits and/or the Section 2081(b) or 2081.1 Permits.
54. Site Specific Management Plan. The terms “Site Specific Management Plan” and “SSMP” mean those plans that TNBC is required to complete for each reserve unit that it acquires.
SSMP’s shall include operations plans that address on-site habitat restoration, enhancement, maintenance and management activities that will be presented to the NBHCP TAC for approval on a three year basis.
55. State Protected Species. The term ‘State Protected Species” means those plants and animals listed by the State of California (“State”) under the provisions of CESA and shown as Covered Species on Table I-1 hereto that are found, or may found, in the permit areas.
56. Swainson’s Hawk Zone. This zone is defined as the lands which are not currently developed (excluding the 250 acres of land designated “Urban” on the City of Sacramento General Plan and the North Natomas Community Plan located within the City of Sacramento) and which are located within the Natomas Basin and within one mile east of the toe of the inside levee of the Sacramento River and extending from the Natomas Cross Canal on the north and Interstate 80 on the south. See also Figure 13 of the NBHCP.
57. System of Reserves. The term “system of reserves” means Mitigation Lands generally and includes all habitat conserved and managed for the Covered Species, including rice fields by TNBC.
58. Take or Taking. With regard to any activities subject to ESA, the terms “Take” or “Taking” shall have the same meaning as provided in the ESA. With regard to any activities subject to CESA, the terms “Take” or “Taking” shall have the same meaning as provided in CESA.
59. Technical Advisory Committee . The terms “Technical Advisory Committee” and “TAC” mean the advisory group of technical experts selected by the Permittees and the Wildlife Agencies to assist TNBC Board with directing the implementation of the NBHCP.
60. The Natomas Basin Conservancy . The terms “The Natomas Basin Conservancy,” “the Conservancy” or “TNBC” shall mean the independent entity established for the purpose of implementing the Natomas Basin Habitat Conservation Plan on behalf of the City, Sutter County and other Potential Permittees. The TNBC is also a Permittee for purposes of implementation of the reserve system.
61. TNBC Mitigation Land or Reserve Area . The term “TNBC Reserve Area” or “TNBC Mitigation Land” shall mean those areas where TNBC is authorized to acquire and manage wildlife reserves subject to the provisions of the NBHCP. Such areas shall include all lands within the Natomas Basin, as well as the land bounding the Natomas Basin and extending to the edge of water immediately outside the Natomas Basin levees and Area B as depicted 36 wc-83845
on Figure 20, Out of Basin Mitigation Areas. The TNBC Reserve Area and the TNBC Permit Area are coterminous.
62. Unforeseen Circumstances. The term “Unforeseen circumstances” is defined at 50 C.F.R.
17.3 as changes in circumstances affecting a species or geographic area covered by a conservation plan that could not reasonably have been anticipated by plan developers and the USFWS at the time of the NBHCP’s negotiation and development, and that result in a substantial and adverse change in the status of the Covered Species. Unforeseen circumstances are discussed in Chapter VI, Section K of the NBHCP.
63. Urban Development Permit and Urban Development Pe rmittee. The term “Urban Development Permit” shall mean the final authorization granted by the Land Use Agencies prior to disturbance of undeveloped land in conjunction with a public or private development project. An Urban Development Permit may also be used to refer to a grading permit or notice to proceed. An “Urban Development Permittee” refers to the individual, agency or company applying for approval, or receiving approval of an Urban Development Permit from the Land Use Agencies.
64. Water Agencies . The term “Water Agencies” means RD 1000 and Natomas Mutual.
Natomas Mutual is a private company and not a governmental agency.
65. Wildlife Agencies. The term “Wildlife Agencies” means the U.S. Fish and Wildlife Service and the California Department of Fish and Game.
37 wc-83845
wc-83845
38 Baseline Map - Exhibit B
City of Sacramento
£7 1 // |_L 1 HI
□
1 1
TI
J.n—thl
wc-83845
40 Sankey Road
Riego Road
S a c r a m e n t o River
Elverta Road
NOTE: ALL LANDS WITHIN EXISTING
ROAD RIGHTS-OF-WAY ARE
CONSIDERED EXEMPT
Ã?
Powerline Road
Pacific Avenue
Sutter County
Sacramento County
Offsite canal
improvements
to support
South Sutter
County Specific Plan -
Part of Sutter County
Permit Area
LEGEND
Natomas Basin
Exempt from HCP
South Sutter County
Specific Plan Area EXHIBIT C
SUTTER COUNTY BASELINE MAP Sutter County Permit Area
1 Miles SUTTER COUNTY PERMIT AREA
1 Inch = 4500 Feet AND EXEMPT LANDS
CH2M Hill RDD ArcView Project File \\Thor\Cart1\rddgis\natomashcp\nat_hcp.apr exhibit_c.pdf 4:05 p.m. 07-30-2002 0 wc-83845
42 Exhibit D -List of Covered Species in Permit Area
TABLE I - 1
LISTED, CANDIDATE, AND OTHER SPECIES ADDRESSED IN THE NBHCP
AND/OR COVERED BY ITS ASSOCIATED PERMITS
# Species Federal
Status
State
Status Habitat Notes
1 Aleutian Canada goose
Branta canadensis
leucopareia
SC Grazes in marshes and stubble fields, roosts on the water 2 bank swallow
Riparia riparia
T Nests in river banks, forages for insects over open water, croplands, and grasslands
3 burrowing owl
Athene cunicularia
SSC Prefers open, dry grassland and desert habitats
4 loggerhead shrike
Lanius ludovicianus
SC SSC Prefers open habitats with scattered shrubs, trees, fences, and posts. Will use cropland.
5 Swainson's hawk
Buteo swainsoni
T Breeds in riparian forest; known nesting sites in trees along Sacramento River in Natomas Basin. Forages for
small mammals in grasslands and croplands.
6 tricolored blackbird
Agelaius tricolor
SC SSC Nests in marshes with bulrush, blackberry or cattails; three known occurrences in Natomas Basin. Forages on
the ground in grasslands and croplands.
7 white-faced ibis
Plegadis chihi
SC SSC Forages in flooded rice fields
8 giant garter snake
Thamnophis gigas
T T Forages in marshes, low gradient open waterways and flooded rice fields, hibernates in canal berms and other uplands; several known occurrences in Natomas Basin
9 northwestern pond turtle
Clemmys marmorata
marmorata
SC SSC Lives in permanent bodies of water; requires floating vegetation, logs, rocks or banks for basking. Hibernates and lays eggs is uplands.
10 California tiger salamander
Ambystoma californiense
C SSC Winters in ground squirrel burrows or other holes; breeds in vernal pools, stockponds , and other seasonal
wetlands.
11 western spadefoot toad
Scaphiopus hammondii
SC SSC Primary habitat is grasslands; breeds in shallow temporary pools
12 valley elderberry longhorn
beetle
Desmocerus californicus
dimorphus
T Lives and reproduces on elderberry shrubs found along rivers and canals.
13 midvalley fairy shrimp
Branchinecta mesovallensis
n. sp.
Vernal pool obligate often found in small pools; likely to occur in Plan Area
14 vernal pool fairy shrimp
Branchinecta lynchi
T Vernal pool obligate; widely distributed in Sacramento County
15 vernal pool tadpole shrimp
Lepidurus packardi
E Vernal pool obligate; widely distributed in Sacramento County
16 Boggs Lake hedge-hyssop
Gratiaola heterosepala
E Low-terrace species found in shallow water margins of vernal pools
17 Colusa Grass
Neostapfia colusana
T Occurs in large deep pools with substrates of adobe mud but also in smaller pools; known in Yolo County
43 wc-83845
# Species Federal
Status
State
Status Habitat Notes
18 delta tule pea
Lathyrus jepsonii ssp.jepsonii
SC Perennial twining vine occurs in both riparian and marsh habitats
19 legenere
Legenere limosa
SC Found in wet places or vernal pools below 400 feet in elevation
20 Sacramento Orcutt grass
Orcuttia viscida
E E Found in relatively large, deep vernal pools in eastern Sacramento County
21 Sanford's arrowhead
Sagittaria sanfordii
SC Tuberose perennial likely to occur in drainage or irrigation ditches
22 slender Orcutt grass
Orcuttia tenuis
T E Found in relatively large, deep vernal pools in eastern Sacramento County
Key to Abbreviations
Federal
E = Listed as endangered C = Candidate for federal listing, data sufficient T = Listed as threatened SC = Species of Concern--informal category, formerly called candidate 2 species (data for listing
insufficient)
State
E = Listed as EndangeredR = Listed as Rare
T = Listed as Threatened SSC = Species of Special Concern 44 wc-83845
ENVIRONMENTAL RESOURCES : Biological Resources
Adopted March 3, 2015
ER 2
Retention of wetland habitat within a
residential neighborhood.
Biological Resources
Policies in this section guide the location, design, and quality of development to protect important biological resources such as wildlife habitat, open space corridors, and ecosystems. Conservation and protection of important biological resources are integral to a healthy human population and contribute to regional economic advantages such as quality of life.
GOAL ER 2.1
Natural and Open Space Protection. Protect and enhance open space, natural areas, and significant wildlife and vegetation in the city as integral parts of a sustainable environment within a larger regional ecosystem.
Policies
ER 2.1.1 Resource Preservation . The City shall encourage new development to preserve on-site natural elements that
contribute to the community’s native plant and wildlife species value and to its aesthetic character. (RDR/MPSP) ER 2.1.2 Conservation of Open Space . The City shall
continue to preserve, protect, and provide appropriate
access to designated open space areas along the American and Sacramento Rivers, floodways, and undevelopable
floodplains, provided access would not disturb sensitive habitats or species. (MPSP/IGC)
ER 2.1.3 Natural Lands Management . The City shall promote the preservation and restoration of contiguous areas of natural habitat throughout the city and support their
integration with existing and future regional preserves. (RDR/IGC)
ER 2.1.4 Retain Habitat Areas . The City shall retain plant and wildlife habitat areas where there are known sensitive resources (e.g., sensitive habitats, special-status, threatened, endangered, candidate species, and species of concern).
Particular attention shall be focused on retaining habitat areas that are contiguous with other existing natural areas and/or wildlife movement corridors. (RDR/IGC)
Part Two : CITYWIDE GOALS AND POLICIES
Adopted March 3, 2015
ER 2.1.5 Riparian Habitat Integrity . The City shall preserve the ecological integrity of creek corridors, canals, and drainage ditches that support riparian resources by
preserving native plants and, to the extent feasible,
removing invasive nonnative plants. If not feasible,
adverse impacts on riparian habitat shall be mitigated
by the preservation and/or restoration of this habitat in compliance with State and Federal regulations or at a minimum 1:1 ratio, in perpetuity. (RDR/IGC)
ER 2.1.6 Wetland Protection . The City shall preserve and protect wetland resources including creeks, rivers, ponds, marshes, vernal pools, and other seasonal wetlands, to
the extent feasible. If not feasible, the mitigation of all adverse impacts on wetland resources shall be required in compliance with State and Federal regulations protecting wetland resources, and if applicable, threatened or
endangered species. Additionally, the City shall require either on- or off-site permanent preservation of an
equivalent amount of wetland habitat to ensure no-net- loss of value and/or function. (RDR/IGC)
ER 2.1.7 Annual Grasslands . The City shall preserve and protect native grasslands and vernal pools that provide habitat for rare and endangered species. If not feasible, the mitigation of all adverse impacts on annual grasslands shall comply with State and Federal regulations protecting foraging habitat for those species known to utilize this habitat. (RDR/IGC)
American River riparian habitat.
ENVIRONMENTAL RESOURCES : Biological Resources
Adopted March 3, 2015
ER 2
ER 2.1.8 Oak Woodlands . The City shall preserve and protect oak woodlands, heritage oaks, and/or significant stands of oak trees in the city that provide habitat for common native, and special-status wildlife species, and shall address all adverse impacts on oak woodlands in accordance with the City’s Heritage Tree Ordinance. (RDR)
ER 2.1.9 Wildlife Corridors . The City shall preserve, protect, and avoid impacts to natural, undisturbed habitats that provides movement corridors for sensitive wildlife species.
If corridors are adversely affected, damaged habitat shall, be replaced with habitat of equivalent value or enhanced to enable the continued movement of species. (RDR/
MPSP)
ER 2.1.10 Habitat Assessments. The City shall consider the potential impact on sensitive plants and wildlife for
each project requiring discretionary approval. If site conditions are such that potential habitat for sensitive plant and/or wildlife species may be present, the City
shall require habitat assessments, prepared by a qualified biologist, for sensitive plant and wildlife species. If the habitat assessment determines that suitable habitat for sensitive plant and/or wildlife species is present, then either (1) protocol-level surveys shall be conducted
(where survey protocol has been established by a
resource agency), or, in the absence of established survey protocol, a focused survey shall be conducted consistent with industry-recognized best practices; or (2) suitable habitat and presence of the species shall be assumed to occur within all potential habitat locations identified on the project site. Survey Reports shall be prepared and
submitted to the City and the California Department of
Fish and Wildlife (CDFW) or the United States Fish and
Wildlife Service (USFWS) (depending on the species) for further consultation and development of avoidance and/ or mitigation measures consistent with state and federal law. (RDR)
ER 2.1.11 Agency Coordination. The City shall coordinate with State and Federal resource agencies (e.g., California
Department of Fish and Wildlife (CDFW), U.S. Army
Corps of Engineers, and United States Fish and Wildlife Service (USFWS) to protect areas containing rare or
endangered species of plants and animals. (IGC)
Part Two : CITYWIDE GOALS AND POLICIES
Adopted March 3, 2015
ER 2.1.12 Natomas Basin Habitat Conservation Plan. The City shall continue to participate in and support the policies of the Natomas Basin Habitat Conservation Plan for the protection of biological resources in the Natomas Basin. (RDR/IGC)
ER 2.1.13 Support Habitat Conservation Plan Efforts. The City shall encourage and support regional habitat conservation planning efforts to conserve and manage habitat for special- status species. New or amended Habitat Conservation
Plans should provide a robust adaptive management
component sufficient to ensure that habitat preserves
are resilient to climate change effects/impacts and to
ensure their mitigation value over time. Provisions should include, but are not limited to: greater habitat ranges and diversity; corridors and transition zones to accommodate retreat or spatial shifts in natural areas; redundant water supply; elevated topography to accommodate extreme
flooding; and flexible management and fee structure.
(RDR/IGC)
ER 2.1.14 Climate Change-related Habitat Shifts . The
City shall support the efforts of The Natomas Basin
Conservancy and other habitat preserve managers to
adaptively manage wildlife preserves to ensure adequate connectivity, habitat range, and diversity of topographic and climatic conditions are provided for species to move as climate shifts. (IGC)
ER 2.1.15 Climate Change-related Habitat Restoration and Enhancement . The City shall support active habitat
restoration and enhancement to reduce impact of climate change stressors and improve overall resilience of habitat within existing parks and open space in the city. The
City shall support the efforts of Sacramento County to improve the resilience of habitat areas in the American River Parkway.
ER 2.1.16 Public Education. The City shall support educational programs for residents and visitors about the uniqueness and value of the natural resources, plants, and wildlife in the region, and how to manage development to
preserve native wildlife populations, to the extent they are consistent with habitat protection requirements. (PI)
Photograph courtesy of
The Natomas Basin Conservancy
Natomas Basin habitat conservation
area.
ENVIRONMENTAL RESOURCES : Biological Resources
Adopted March 3, 2015
ER 2
ER 2.1.17 Community Involvement. The City shall encourage community volunteerism and stewardship to help protect
and rehabilitate the area’s natural resources. (JP/PI)
From: Remi Mendoza
To: Julio Lamas
Cc: Stacia Cosgrove; Matt Hertel; Cheryle Hodge; Amy Yang Subject: RE: Natomas Basin
Date: Wednesday, January 24, 2024 7:25:13 AM
Attachments: image001.png
Thank you, Commissioner Lamas,
We’ll include this e-mail as a public comment for our item at Planning & Design Commission tomorrow night.
Best,
Remi
Remi Mendoza, CFM
Senior Planner
City of Sacramento | Community Development Department
Office: (916) 808-5003
Interested in the City’s General Plan Update? Visit Sacramento 2040 to learn more.
From: Julio Lamas <[email protected]>
Sent: Tuesday, January 23, 2024 8:33 PM
To: Remi Mendoza <[email protected]>; Amy Yang <[email protected]> Cc: Stacia Cosgrove <[email protected]>
Subject: Fwd: Natomas Basin
Hello Remi and Amy,
I'm forwarding this comment that was received in relation to the General Plan update for the public record. I will advise the resident that it has been forwarded to the City.
---------- Forwarded message ---------
From: lynn wheat <[email protected]
>
Date: Tue, Jan 23, 2024 at 6:40 PM
Subject: Natomas Basin
To: <[email protected]
>
Dear Commissioner Lamas,
As a resident of Elk Grove, I know the consequences of urbanizing agricultural land. I have attended many public meetings and heard the concerns of our farming families who did not want to sell to land speculators and developers. Unfortunately, in our region, the development interests have prevailed and ultimately pushed out many viable farms. A perfect example has been the rapid development of ag land in the southern part of Elk Grove.
Once the urban conversion of ag land begins, local farmers who do not wish to sell out are eventually squeezed out by the new urbanites who complain about the negative impacts of the ag uses.
Besides the loss of protected ag land and its impact on food production and lifestyle, urban sprawl also impacts protected wildlife habitat. To use Elk Grove as another example, the County-wide Habitat Conservation Plan was intended to identify and protect habitat and offer a means of mitigation by replacement lands if needed. Elk Grove withdrew from the Plan and is forced to seek out undeveloped habitat land to use as credit for developers, but the rapid urbanization of ag land means the City is sitting on a pile of unused impact fees in search of available land. Meanwhile, the protected wildlife who lost their habitat to development die off.
I urge the City of Sacramento to have foresight and protect its ag land and wildlife habitat by sticking to its master plan, if not for the current generation, but for the future generations. Many young people have no idea that Elk Grove was once a farming community. Elk Grove is a perfect example when sprawl is allowed to occur and its General Plan is a mere suggestion and not a policy. The City of Elk Grove’s General Plan has been amended more than 60 times.
As a resident of Elk Grove, I am willing to offer a tour of our city and the surrounding area of lost farmland as I believe seeing-is-believing. I urge you to not repeat the mistakes of Elk Grove.
The Natomas Basin Habitat Conservation Plan is a commitment to preserving and protecting our farmers and a quality habitat environment for our migratory bird species.
This plan and policy is for the protection of quality of life now and into the future.
Sacramento prides itself on being a “Farm to Fork” capital. How will this continue with the expanding sprawl?
I encourage you to remove this study area from potential future urbanization. The balance between urban uses and farmland and habitat in North Natomas has been reached and needs to be protected.
Sincerely,
Lynn Wheat
Elk Grove Resident
(916) 834-1244
Sacramento Group
1722 J Street, #226
Sacramento, CA 95811
January 24, 2024
To: City of Sacramento Planning and Design Commission
Clerk, City of Sacramento
Community Development Department staff, Remi Mendoza, and Vic Randall Sent via: eComment Portal
Dear Commissioners and Planning and Design Staff,
I am adding important information to include in the City’s consideration of incorporating a “special study area” in the Natomas area. The Sierra Club is very concerned about this section of the proposed General Plan update.
The State Legislature and Governor Newsom have adopted a 30 x 30 plan for the State of California. The 30 x 30 plan is aligned with a global campaign designed to halt mass extinction of species and the devastation of ecologically important natural systems to aid in the effort to halt the worst impacts of climate change by 2030.
It’s crucial that we participate locally and take definitive steps to conserve 30% of the Sacramento regions’ lands to address the impacts of the climate crisis, conserve water, maintain air quality, and preserve natural areas.
The Sacramento region has lost much of its historical habitat and farmland to urban development and continues to experience threats of development to what remains of our open lands, which have become surrogate habitat for many threatened and endangered species, and provide valuable carbon sequestration.
The incorporation of more land in Natomas as a “special study area”, currently outside of existing City boundaries, into the City’s General Plan increases the potential for more development there, and puts our region in danger of falling far short of important land conservation goals. The total Sacramento region’s land mass included in the scope of the 30 x 30 plan is almost 4 million acres. The existing total of already protected areas stands at only 7% of this land mass. If our area is to meet the goal, an additional 900,000 plus acres must be conserved. If the County, and all seven cities within it, conserve more easily accessible open
lands, specifically lands in Natomas, we could handily expand the total protected area to 19%, still putting our region far behind in reaching the desired goal of the 30 x 30 plan.
By comparison the San Francisco Bay Area has already conserved close to the proposed 30% of land with protected parklands, waterways, conservation easements, and open space.
We are asking that the Natomas Basin area of Sacramento County be excluded from being added to the General Plan as an area of special study, which would encourage speculation for development. Our region must be able to achieve the 30 x 30 plan goals and concurrently achieve the City and County Climate Action Plan goals. Preserving open space is the only way that we can reasonably achieve these goals.
Sincerely,
Barbara Leary
Chairperson
Sierra Club Sacramento
PLANNING AND DESIGN COMMISSION
Maya Wallace (Chair)
Enoch Yeung (Vice Chair)
Julian Andrade
Robert Blunt
Tyrone Buckley
Robert Chase
Nicolina Hernandez
Dov Kadin
Julio Lamas
Kendra Macias Reed
Ginger Thompson
Lee Xiong
COMMISSION STAFF
Kourtney Burdick, Senior Deputy City Attorney
Leslie Walker, Senior Deputy City Attorney
Greg Sandlund, Planning Director
Stacia Cosgrove, Principal Planner
Bruce Monighan, AIA, Urban Design Manager
Kevin Colin, Principal Planner
Planning and Design
Commission
City Hall Complex
915 I Street
Sacramento, CA 95814
Published by the Office of the City Clerk
(916) 80
8-5163
CORRESPONDENCE
D
escription: Correspondence received after publishing the Agenda.
For
the Meeting of: Thursday, January 25, 2024, at 5:30 p.m.
A
genda Item: Public Hearing Item 5
5. R
ecommendation to Adopt the 2040 General Plan and Climate Action & Adaptation Plan and certify the Final Master Environmental Impact Report (Noticed on 01/12/2024) Recommendation to Adopt the 2040 General Plan and Climate Action & Adaptation Plan and certify the Final Master Environmental Impact Report (Noticed on 01/12/2024)
File ID: 2024-00251
Location: Citywide
Recommendation: Staff recommends the Planning and Design Commission forward to City Council a recommendation to certify the Final Master Environmental Impact Report for the 2040 General Plan and Climate Action & Adaptation Plan, adopt the Sacramento 2040 General Plan and adopt the Climate Action & Adaptation Plan.
Contact: Amy Yang, Associate Planner, (916) 808 5023, [email protected]; Remi Mendoza, Senior Planner, (916) 808 5003, [email protected]; Vic Randall, Senior Planner, (916) 808 5530, [email protected]; Matt Hertel, AICP, Long Range Planning Manager, (916) 808 7158, [email protected], Community Development Department
Subject:
Date:
FW: Remove the Natomas Basin Study Area from the General Plan Tuesday, January 23, 2024 9:09:19 AM
---------- Forwarded message ---------
From: Maggie Coulter <[email protected]>
Date: Wed, Jan 17, 2024 at 8:39 PM
Subject: Remove the Natomas Basin Study Area from the General Plan To: <[email protected]>, Eric Guerra <[email protected]> Cc: <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]>, <[email protected]> Please remove the Natomas Basin Study Area from the General Plan. The Natomas Basin is 18,000 acres of farmland and habitat outside the city, in the County of Sacramento that should be retained as agricultural land and open space. It includes part of the Natomas Basin Habitat Conservation Plan (HCP) and includes farmland in Natomas which is important habitat that protects habitat preserves from urban impacts.
Urbanization in the County unincorporated area conflicts with the conservation strategy of the Natomas Basin HCP and will harm existing habitat preserves and harm the Pacific Flyway. More urbanization in North Natomas will eliminate Sacramento's best chance to a conserve a large area next to the City of farmland and habitat permanently.
Again, I urge you to remove the Natomas Basin Study Area from the General Plan and to do what is needed to protect this area.
Sincerely,
Maggie Coulter
Sacramento
Subject:
Date:
FW: Natomas Basin
Tuesday, January 23, 2024 9:09:44 AM
---------- Forwarded message ---------
From: Joan Ellis
Date: Wed, Jan 17, 2024, 7:40 PM
Subject: Natomas Basin
Hello, I am a resident of Sacramento County and am concerned about habitat loss, wildlife protection and climate change. I am concerned about the Natomas Basin Study Area as a possible site for future urban development. This area serves as important habitat and, I believe, should be left permanently as farmland and wildlife habitat.
Development of this area will harm existing habitat preserves and the Pacific Flyway, an important consideration in an era of rapid loss of avian species.
Please let this area remain undeveloped and show that Sacramento and its citizens care about the future of the environment and wild creatures.
Thank you.
Joan Ellis
Acknowledgement & Conflict of Interest
January 25, 2024
Via Email to Planning Commission Members
Planning Commission
City of Sacramento
715 L Street
Sacramento, CA 95814
RE: Comments Proposed 2040 General Plan
Dear Members of the Planning Commission,
I am writing on behalf of my clients, Integral Communities and AKT Development relative to their interests in the Northlake (formerly Greenbriar) Project and the property located at 7919 Folsom Blvd, respectively. The projects are independent of one another and not otherwise related. Both projects have separately had preapplication meetings with City staff to discuss their project specific proposals. Both projects are just barely within the ½ mile distance from either an existing or proposed light rail station. The proposed language in General Plan Policy LUP 4.12 would preclude their consideration by the Planning and potentially the Council on their individual project applications and their site specific characteristics.
The existing City Planning and Development Code provides adequate safeguards for evaluation drive through proposals located ¼ to ½ mile of an existing or proposed light rail stops and both projects are working through their respective issues. If additional considerations for project proposals within this distance are desired by the Commission, at the very least, light rails and high frequency bus stops should be rated on a tier approach. For example, light rail in the Northlake project is not expected for decades, if ever. Not all properties are of equal TOD priority. Either way, proposed General Plan Policy LUP-4.12 should revert back to the originally proposed language prohibiting drive throughs within ¼ mile.
While supporting public transit and sustainable development are important goals, an outright ban based just on proximity, one size fits all, City-wide approach is not appropriate and oversimplifies the TOD discussion. Here, the Northlake Community Commercial site is located at the fringe of the City limits immediately adjacent to the Elkhorn Blvd. and Highway 99 interchange. It is located very close to the ½ mile point, measure from the location of the future Planning Commission
January 25, 2024
light rail platform on the Greenline to the Airport. The Northlake commercial property is located in an area which is suburban in nature and character. TOD types of projects just make no practical or planning sense on this specific property.
As to the 7919 Folsom site, located at the corner of Hornet Drive and Folsom Blvd., is at the outer edge of the ½ point from the existing Power Inn light rail station. Between the station platform and this property is a massive park and ride parking lot, a rail line, the traffic intense intersection of Power Inn Road and Folsom Blvd and a big box home improvement store in the form of Home Depot with its sea of parking, among other surrounding uses. Again, TOD type of projects at the corner of Hornet Drive and Folsom Blvd make no practical sense today or in the time horizon of the General Plan.
What these two examples provide is a real-world sense that the same blanket restriction across the entire City, that does not allow for nuanced considerations of individual project proposals, just does not make good planning sense. North Natomas is not Midtown. Rather than a blanket ban, for projects located ¼ to ½ mile, I respectfully request that the Planning Commission revert to the ¼ language as originally proposed and direct planning staff to bring back language in the Planning and Development Code (PDC) that would prioritize top tier TOD locations for the ¼ to ½ mile prohibition based on likely feasibility of TOD during the planning horizon of the General Plan. In fact, LUP-A.10 calls for staff to bring back PDC language to prohibit drive-throughs where a strong pedestrian and transit orientation is desired.
Thank you for the opportunity to provide these comments.
Very Truly Yours,
AVDIS & CUCCHI, LLP
Nick S. Avdis
Sigrid R Waggener
Manatt, Phelps & Phillips, LLP
Direct Dial: (415) 291-7413
[email protected]
Manatt, Phelps & Phillips, LLP One Embarcadero Center, 30th Floor, San Francisco, California 94111 Tel: 415.291.7400 Fax: 415.291.7474 Albany | Boston | Chicago | Los Angeles | New York | Orange County | Sacramento | San Francisco | Silicon Valley | Washington , D.C.
January 25, 2024
VIA ELECTRONIC MAIL ONLY
Planning and Design Commission
City of Sacramento
300 Richards Boulevard, 3rd Floor
Sacramento, CA 95811
[email protected]
[email protected]
Re: COMMENTS ON FINAL MASTER ENVIRONMENTAL IMPACT REPORT FOR THE CITY OF SACRAMENTO 2040 GENERAL PLAN UPDATE AND CLIMATE ACTION & ADAPTATION PLAN (SCH#: 2019012048)
Dear Honorable Commissioners:
This firm represents Penske Truck Leasing Co., L.P. (“Penske”) and we hereby respectfully submit these comments on the City of Sacramento’s (“City”) Final Master Environmental Impact Report (“FMEIR”) for the City’s 2040 General Plan Update (“GPU 2040”) and Climate Action and Adaptation Plan (“CAAP”)(collectively, the “Project”). We ask that the City include this comment letter and associated exhibits in the administrative record of proceedings for this matter.
As the City is aware, Penske previously submitted a comment letter, dated October 10, 2023 (attached hereto as Exhibit 1), regarding the Draft MEIR (“DMEIR”) for the Project. In the prior comment letter, Penske pointed out that the DMEIR suffered from a multitude of procedural and substantive legal defects under the California Environmental Quality Act (“CEQA”), including, but not limited to, project piecemealing, inadequate and misleading project description as well as severely flawed analyses of policies and resources. Penske also expressed its concerns regarding the City’s failure to provide legally adequate notice to affected stakeholders, given that the Project will curtail and phase out Penske’s and others’ ongoing industrial operations by way of land use re-designation and use restrictions.
Additionally, we have reviewed the City’s responses to Penske’s comments of October 10, 2023, and we are compelled to point out that such responses do not comply with the requirements of CEQA. Penske is deeply concerned and disappointed that the City appears to be proceeding with the Project and FMEIR without resolving any of the deficiencies previously outlined and without adequately responding to Penske’s comments on the DMEIR. We strongly urge the City, again, to refrain from advancing this Project any further until and unless it cures Planning and Design Commission
January 25, 2024
the outstanding legal defects and recirculates the FMEIR as required under the CEQA statutes and CEQA guidelines.
A. THE FMEIR CONTINUES TO SUFFER FROM A NUMBER OF LEGAL
DEFECTS AND MUST BE REVISED AND RECIRCULATED PRIOR TO
CERTIFICATION
1. Adoption of the FMEIR Would Violate CEQA’s Clear Prohibition on Project Piecemealing.
As stated in Penske’s October 10, 2023 letter, the City has engaged in improper piecemealing in its characterization and review of the Project. GPU 2040 and the FMEIR fail to acknowledge, let alone address, the “Interim Ordinance Relating to Commercial Truck Usage in North Sacramento and Permit Requirements Under Title 17 of the Sacramento City Code (M23- 001)” (hereinafter, the “Interim Ordinance”), that was considered at the October 3, 2023, Law and Legislation Committee meeting. The purpose of the Interim Ordinance is to advance specific policies of GPU 2040 – specifically GPU 2040 Policy EJ. A-5. On its face, the Interim Ordinance proposes to place development constraints on heavy truck related uses. These constraints, in turn, are formalized in GPU 2040 with the introduction of the EMU land use designation1 that undeniably eliminates “heavy” industrial uses in such designated lands. Despite the obvious interrelatedness between GPU 2040 and the Interim Ordinance, the City’s response to comment (“RTC”) asserts that this is not considered piecemealing as the two documents have “independent utility”:
Environmental review is not piecemealed if the project has independent utility and a related proposal is not necessary for the project to proceed (Communities for a Better Env’t v. City of Richmond [2010] 184 Cal.App.4th 70,108; Planning & Conservation League, supra, 237). The Interim Ordinance does not require the 2040 General Plan to proceed, and the 2040 General Plan is similarly not dependent on the Interim Ordinance to proceed. The City will be reviewing and adopting various plans, ordinances and zoning updates as part of implementation of the general plan.
These subsequent actions will be reviewed to determine if CEQA review is required, if the actions are within the scope of the Master EIR or, as in the case of the Interim Ordinance are exempt from CEQA. See comment 13-6 at p. 4-228 of the FMEIR.
The City’s RTC is utterly false. As discussed above, the Interim Ordinance is completely dependent of GPU 2040 and vice versa. The City justified the implementation of the Interim Ordinance by making the finding that such ordinance was consistent with
1 The EMU designation is a completely new designation, such designation does not exist under the City’s current 2035 General Plan.
Planning and Design Commission
January 25, 2024
Policy EJ. A-5 of GPU 2040. A policy that has yet to be formally adopted.
Simultaneously, it is through the EMU designation that GPU 2040 phases out the very same uses constrained by the Interim Ordinance. It is evident that these two documents do not have “independent utility” and the City has piecemealed them in a manner that completely violates CEQA.
2. Changes to the FMEIR Result in Adverse Significant Impacts That Constitute Recirculation
As noted above, the Interim Ordinance clearly implements portions of the larger GPU 2040 project. Specifically, Policy EJ. A-5 authorizes the City to further evaluate both new and existing industrial uses in a manner that will phase them out. The DMEIR defined the policy as:
Policy EJ. A-5 - Performance Zoning. The City shall develop zoning standards applicable to new and existing industrial and manufacturing developments to minimize or avoid adverse effects related to air quality, noise, or safety on sensitive populations in disadvantag ed communities and other areas of the city where industrial and manufacturing uses are near residential uses, such as the Robla neighborhood. See p. 4.11-6 of DMEIR.
After reviewing GPU 2040 and the FMEIR, it was determined that the City completely altered the definition of this policy to include any uses, not just industrial. GPU 2040 now defines the policy as:
Policy EJ. A-5 - Amortization Ordinance. The City shall study the feasibility of an amortization ordinance that would phase out polluting industries currently located near sensitive receptors. The study should identify a process and criteria for determining which industries to amortize. See p. 7-27 of GPU 2040.
The City states that recircul ation of the FMEIR is not required as “none of the changes results in new significant environmental impacts or a substantial increase in the severity of an environmental impact”. See p. 2 of January 25, 2024 Staff Report. This change in Policy EJ. A -5 alone results in significant environmental impacts not previously disclosed or assessed in the FMEIR. It is unclear exactly what the City deems to be “polluting”, the extent to which a use is “polluting”, what are the sensitive receptors and how close of a proximity do these polluting uses need to be to these sensitive receptors. The FMEIR needs to disclose and assess these “polluting industries”, its current impacts and the impacts associated with phasing them out. At minimum, the City must revise the FMEIR to account for the impacts associated with this change in Policy and recirculate for general public comment.
Planning and Design Commission
January 25, 2024
3. As a Matter of Law, the FMEIR’s Project Description Continues To Be Flawed and Inadequate
As stated in the prior letter, the FMEIR’s project description is inaccurate as a matter of law because it affirmatively misleads the public as to the nature of the City’s newly developed EMU land use designation. GPU 2040 proposes to rescind the existing ECLR designation and impose a new EMU designation. This is not a minor undertaking. To the contrary, approximately 3,359 acres of land will be redesignated. The City asserts, without any evidentiary support, that the two designations are “different name, same idea”; however, the allowed uses listed under each designation are completely different. See p. 2-17 of DMEIR.
We emphasize that the existing ECLR and EMU designations are not “different name, same idea” due to the complete shift in permitted uses. Whereas the ECLR designation allowed general industrial and manufacturing uses; the EMU designation now explicitly calls out “light industrial”. See 2-102 of GPU 3035 and 3-15 of GPU 2040. To date, the City has yet to provide a definition for “light industrial”. Additionally, the ECLR designation allowed “employment generating uses that do not produce loud noise or noxious odor”; now, the EMU designation specifies “service commercial uses that do not generate substantial noise or odors”. Id. Here we clearly see the Interim Ordinance at work as the very “industrial” uses that were once allowed are no longer permitted.
In turn, the City responded to this comment by first stating that “the comment does not address the accuracy or adequacy of the DMEIR; therefore, no further response is required”. See comments 13-7 and 13-8 on p. 4-229 of FMEIR. As discussed above, the FMEIR is required to analyze the impacts associated with the implementation of the goals and policies of GPU 2040.
The re-designation from ECLR to EMU must be assessed in the FMEIR, including the impacts in change of uses. The City cannot choose to disregard a deficiency that will impact thousands of stakeholders who have been led to believe – falsely - that their respective use allowances will remain status quo.
The City adds to its response by offering clarification of the allowed uses, indicating that the “EMU designation is not inconsistent with what would be allowed under the existing ECLR designation”. Id. Specifically, the City claims that the EMU designation, similar to the ECLR designation, permits uses that “do not generate substantial noise or odors” and that “service commercial uses typically includes vehicle maintenance, sales and leasing”. Id. This clarification only proves our claim that the ECLR and EMU designations are completely different. The City’s RTC fails to acknowledge the industrial component that was previously permitted in the ECLR designation and, instead, highlights commercial uses. We know for certain that, in light of the Interim Ordinance, truck-related uses are not considered “commercial” and trucks are not classified as “vehicles”. It is for these reasons that the project description remains flawed and the City’s illegal piecemealing approach is further strengthened.
Planning and Design Commission
January 25, 2024
4. Several of the FMEIR’s CEQA Resource Analyses Continue to Be Flawed
As a preliminary matter, we are compelled to point out that the since the FMEIR’s project description continues to be legally defective, each and every analysis in the FMEIR must be called into question. However, since Penske was given no notice of the availability of the DMEIR and the running of the comment period for the DMEIR, we highlight some, but not all, of the analytical deficiencies here.
a. The FMEIR’s Assessment of Air Quality Impacts Remains Inadequate
As stated in the prior letter, the FMEIR does not consider the air quality impacts associated with the displacement of general industrial uses—in particular those uses that have an operational trucking component. The Interim Ordinance and EMU designation will effectively phase out truck-related uses; thereby pro-longing the distance and increasing the vehicle miles traveled (“VMT”) for these uses to provide the same delivery and services throughout the region.
The City responded to this comment by first stating that “the allowable uses under the EMU designation permit the same types of activities as under the existing ECLR designation” and second, by stating that “the analysis of air quality impacts in the DMEIR evaluates the effects of implementation of the proposed GPU 2040 and CAAP on air quality in the Planning Area and captures the proposed increase in industrial uses”. See Comment 13-9 on p. 4-230 of FMEIR. As we have discussed above, the City continues to mislead the public into thinking that the ECLR and EMU designations are one in the same. They are not. The City is conspicuously pushing forth an Interim Ordinance that clearly eliminates the uses previously allowed under the ECLR designation. Thus, the City could not have possibly accounted for the “proposed increase in industrial uses” if it continues to dismiss the fact that the Interim Ordinance is part of the much greater GPU 2040 efforts.
The FMEIR continues to lack any analysis of the air quality consequences of bringing sensitive receptors closer to pollution sources. Specifically, GPU 2040 seeks to develop residential uses and care facilities in locations where such uses were previously unauthorized. In response to these comments, the City states that “ the MEIR does not assume that every parcel in the city would be developed during the general plan period, nor does it assume each such parcel would be developed to the maximum intensity allowed by the general plan”. See Comment 13-10 on p. 4-230 of the FMEIR. The fundamental purpose of CEQA is to assess the environmental impacts a project will have on the surrounding environment. Here the City is admitting that it did not fulfill its duties of analyzing the full extent the Projects impacts will have on the surrounding environment.
Finally, the FMEIR has yet to address the impediments GPU 2040 itself creates to the achievement of the City’s laudable air pollution reduction objectives. In the prior comment letter, it was raised that although there are policies like M-1.37 and M-1.38 that call for the installation Planning and Design Commission
January 25, 2024
of electric vehicle (“EV”) infrastructure and the transition to EV vehicles in the private commercial sector, under GPU 2040, Penske’s property and the properties of many others will be redesignated in a manner that affirmatively curtails Penske’s and others’ ability to modify and modernize their business operations to achieve GPU 2040’s air quality objectives. To our surprise, the City completely disregarded this comment; instead, they simply stated that such policies were evaluated in the DMEIR and that the redesignation “relates to planning and land use regulation…therefore no response is required”. See Comment 13-11 on p. 4-231 of FMEIR.
Again, how is the City actively pushing for sustainable infrastructure yet, at the same time, phasing out the operators that are at the forefront of these initiatives? The discrepancies in the GPU 2040 goals and policies must be addressed prior to further consideration.
b. The FMEIR’s Assessment of Greenhouse Gas Impacts Remains Inadequate
As discussed above, the FMEIR does not consider any impacts the GPU 2040 and Interim Ordinance will have in connection to the displacement of industrial businesses, including impacts on GHG emissions. This is because the City continues to deny that the two are inter- dependent of each other. As shown in the City’s response to this comment, which they simply deferred to the responses made to the comments on air quality, they stated that no comment is required because it does not “address the accuracy or adequacy pf the DMEIR”. Id. Until the City accepts that the restrictions on truck-related uses is part of the GPU 2040 efforts, only then it can properly analyze the impacts on GHG emissions. And until then, the FMEIR remains severely flawed.
c. The FMEIR’s Assessment of Land Use and Planning Impacts Remains Inadequate
As outlined in the prior comment letter, the FMEIR does not disclose or evaluate GPU 2040’s potential, significant conflict with the operations of and airport land use plan(s) for the McClellan Airport (“Airport”). The Project aims to develop sensitive receptors, such as residential uses and care facilities, immediately adjacent to the Airport. See GPU 2040 Map LU-
5. The City’s response to these comments are lackluster as they simply refer to the existing Airport Land Use Compatibility Plan (“ALUCP”), where all projects in such areas will be assessed for compliance. This is simply not a matter of compliance but rather impacts to public health that the City has not adequately addressed.
d. The FMEIR’s Assessment of Traffic Impacts Remains Inadequate
As we have emphasized in our prior letter, the di splacement of local, transport -centric businesses will result in adverse impacts to air quality and GHG emissions due to the increase in VMT’s. Yet, the City is persistent that there is no displacement of uses as the uses permitted under ECLR and EMU designations are the same and no further analysis is required. Moreover, the City Planning and Design Commission
January 25, 2024
adds that, “GPU 2040 does not significantly change the existing land use designation in this area [North Sacramento Community Plan]”. See Comment 13-15 on p. 4-232. As an area characterized by heavy industrial land uses, and where the City has felt a need to establish an Interim Ordinance for truck-related uses in these areas, GPU 2040 aims to vastly shift the built environment in this area. The introduction of sensitive receptors not previously permitted require the alternate, public and private transportation methods to properly serve these new uses and must assessed properly in the FMEIR
We emphasize that there needs to be direct outreach and correspondence with owners and operators who’s properties and businesses are directly impacted by GPU 2040. Penske is aware of several other industrial business owners who were likewise excluded from the City’s processes here. By withholding any further action and recirculating the FMEIR, this will allow impacted owners and businesses to partake and comment on the policies and programs that affect them the most.
Penske appreciates the City’s attention to the comments provided in this letter and welcomes the opportunity to work collaboratively with the City to address the CEQA concerns raised herein. Please do not hesitate to contact our offices on this matter—I may be reached at 415-291-7413 or at [email protected].
Sincerely,
Sigrid Waggener
EXHIBIT 1
Sigrid R Waggener
Manatt, Phelps & Phillips, LLP
Direct Dial: (415) 291-7413
[email protected]
Manatt, Phelps & Phillips, LLP One Embarcadero Center, 30th Floor, San Francisco, California 94111 Tel: 415.291.7400 Fax: 415.291.7474 Albany | Boston | Chicago | Los Angeles | New York | Orange County | Sacramento | San Francisco | Silicon Valley | Washington , D.C.
October 10, 2023
VIA ELECTRONIC MAIL ONLY
Scott Johnson, Senior Planner
City of Sacramento, Community Development Department
300 Richards Boulevard, 3rd Floor
Sacramento, CA 95811
(916) 808-5842
[email protected]
Re: COMMENTS ON DRAFT MASTER ENVIRONMENTAL IMPACT REPORT FOR THE CITY OF SACRAMENTO 2040 GENERAL PLAN UPDATE AND CLIMATE ACTION & ADAPTATION PLAN (SCH#: 2019012048)
Dear Mr. Johnson:
This firm represents Penske Truck Leasing Co., L.P. (“Penske”) and we hereby respectfully submit these comments on the City of Sacramento’s (“City”) Draft Master Environmental Impact Report (“DMEIR”) for the City’s 2040 General Plan Update (“GPU 2040”) and Climate Action and Adaptation Plan (“CAAP”). We ask that these comments be included in the administrative record of proceedings for this matter. We further request that City staff carefully consider and fully respond to the comments provided herein in accordance with the City’s obligations under the California Environmental Quality Act (“CEQA”), as well as other applicable laws. We urge the City to refrain from approval of GPU 2040 and the CAAP until the City has cured the procedural and substantive defects in the DMEIR that we identify in detail below.
A. RELEVANT BACKGROUND
Penske owns and operates a truck rental, leasing, and maintenance facility at 53 Morrison Avenue in Sacramento California (the “Penske Facility”) 1 pursuant to a number of land use
entitlements issued by the City, including but not limited to, Use Permit P04-193, Zoning Case Z05-235 and Permits 0502917 and 0616087 (collectively, the “Penske Entitlements”). The Penske Facility has operated continuously since 2007 pursuant to these duly issued entitlements.
Penske has made significant financial investments in the Penske Facility based on the reasonable
1 The Penske Facility is also identified as County Assessor’s Parcel Numbers 250 -0351-019 and 250-0351-020 and is located within what GPU 2040 defines as the “North Sacramento Community Plan” area. See GPU 2040 at 11- NS-1 to 11-NS-2, LUP Map-5.
Mr. Scott Johnson, Senior Planner
October 10, 2023
expectation that it will be able to not only continue to operate its Penske Facility, but also modify and modernize aspects of its operations—including transitioning its vehicle fleet to zero- emission vehicles (“ZEVs”).
Penske is a nationwide leader in low/zero-emission transportation and has made a companywide commitment to a deliberate and responsible transition to ZEVs. As one of the nation's leading transportation solutions providers, Penske shares California’s zero-emission goals. Penske’s commitment to a shift to zero-emission transportation technology is reflected by its investments over the last five (5) years in multiple medium- and heavy-duty electrification demonstration and deployment projects. These projects have afforded Penske invaluable experience working with the California Air Resources Board (“CARB”), the California Legislature, California utilities, major vehicle manufacturers (including startups), charging infrastructure manufacturers and developers, battery providers, and customers in the deployment and operation of new zero-emission transportation services across the entire supply chain.
Penske believes there are very few, if any, large transportation providers doing more than it to advance zero-emission infrastructure technology and policy. Penske currently operates one of the largest commercial fleets of medium- and heavy-duty ZEVs in the United States with battery electric powered trucks from multiple original equipment manufacturers (“OEMs”).
Many of these ZEVs are operated and maintained out of numerous Penske sites in California, which are fully equipped with medium- and heavy-duty electric vehicle charging infrastructure.
In addition to its current sites, Penske is now in the planning and development stages to expand its charging network that will allow it to advance the shared goals of Penske, its customers, and the communities in which Penske’s vehicles operate.
Surprisingly, and despite Penske’s long-term status as a stakeholder property owner and business owner within the City, Penske was not contacted at all in connection with the City’s preparation of GPU 2040 and the associated CAAP. Nor was Penske advised that a DMEIR was being prepared in support of the CAAP and GPU 2040. Penske only learned of the City’s pending update of its general plan and climate strategy through its participation in the City’s October 3, 2023 hearing on “[a]n Interim Ordinance Relating to Commercial Truck Usage in North Sacramento and Permit Requirements Under Title 17 of the Sacramento City Code (M23- 001)” (hereinafter, the “Interim Ordinance”). Given the City’s failure to provide adequate notice of the availability of the DMEIR to Penske and other impacted businesses, the City should, at minimum continue the DMEIR comment period for a reasonable length of time. However, if the City declines to continue the comment period, the City must nevertheless correct the DMEIR’s various legal defects and recirculate the DMEIR as required under the CEQA statutes and CEQA Guidelines.
Mr. Scott Johnson, Senior Planner
October 10, 2023
B. THE DMEIR SUFFERS FROM A NUMBER OF LEGAL DEFECTS AND MUST
BE REVISED AND RECIRCULATED PRIOR TO CERTIFICATION
1. Adoption of the DMEIR Would Violate CEQA’s Clear Prohibition on Project Piecemealing.
CEQA is clear that public agencies must analyze the “whole of an action” that may result in a direct or reasonably foreseeable indirect impact. (State CEQA Guidelines, § 15378(a); see also Tuolumne County Citizens for Responsible Growth, Inc. v. City of Sonora (2007) 155 Cal.App.4th 1214.) A public agency may not divide a single project into smaller individual subprojects to avoid responsibility for considering the environmental impact of the project as a whole. (Orinda Association v. Board of Supervisors (1986) 182 Cal.App.3d 1145, 1171.)
As noted above, Penske first learned of the existence of the DMEIR and the City’s proposal to consider and adopt GPU 2040 and the CAAP in the first week of October 2023 when it was made aware of the City’s consideration of the Interim Ordinance. Per the draft GPU 2040, the City proposes to re-designate the Penske Facility from “Employment Center Low Rise” (“ECLR”) to “Employment Mixed-Use” (“EMU”). The current, operative ECLR designation permits general industrial and manufacturing uses conducted within a building or outside in an enclosed location on ECLR lands. See 2035 General Plan LU 2-102. GPU 2040’s proposed EMU redesignation has been engineered to eliminate such uses—in particular, those uses that have any sort of outdoor or trucking component. GPU 2040 at 3-15 provides:
The Employment Mixed Use [EMU] designation is intended to buffer residential uses from more intense industrial activities and to provide compatible employment uses in proximity to housing. This designation provides for a range of light industrial and high technology uses. Allowable uses include the following: light/advanced manufacturing, production, distribution, repair, testing, printing, research and development; service commercial uses that do not generate substantial noise or odors; retail and service uses that provide support to employees; and, compatible residential uses such as live-work spaces or employee housing.
Id. (emphasis added). The plain language of the EMU designation is clear—permissible uses on lands redesignated EMU are light industrial in nature or tech-centric. The express language of the old ECLR designation generally authorizing indoor and outdoor general industrial and manufacturing uses is conspicuously absent.
While advancing the EMU redesignation via GPU 2040, the City has simultaneously advanced an Interim Ordinance, the purpose of which is to eliminate the future establishment of “heavy” industrial uses on certain EMU lands within the City. The City is advancing this Interim Mr. Scott Johnson, Senior Planner
October 10, 2023
Ordinance without undertaking any CEQA review whatsoever. On its face, the Interim Ordinance proposes to place development constraints on projects involving “[l]and uses of contractor storage yard, trucking terminal yard; heavy truck sales, storage and rental; heavy truck service and repair; or, warehouse and distribution centers…” that are located on lands “bounded by [C]ity limits on the north and east, Arden Way on the south, and Steelhead Creek on the west.”
2 The lands impacted by the Interim Ordinance encompass the Penske Facility.
The City Legislative Committee held a hearing on the Interim Ordinance on October 3, 2023.3As set forth by the City in its staff report and during the October 3rd hearing, the express purpose of the Interim Ordinance is to advance specific policies of GPU 2040—specifically GPU 2040 Policy EJ-A-5.
Despite the obvious interrelatedness of GPU 2040 and the Interim Ordinance, the City is pursing adoption of the Interim Ordinance without any environmental review whatsoever.
Purposefully carving out the adoption of the Interim Ordinance, which clearly implements portions of the larger GPU 2040 project, is textbook piecemealing and forbidden as a matter of law. The DMEIR cannot be adopted until and unless the physical consequences of Interim Ordinance are disclosed and considered in the DMEIR along with GPU 2040.
2. As a Matter of Law, the DMEIR’s Project Description Is Inadequate
CEQA requires that a draft environmental impact report’s project description be accurate, stable, and consistent. (State CEQA Guidelines, § 15124; see also County of Inyo v. City of L.A. (1977) 71 Cal.App.3d 185, 192; Washoe Meadows Community v. Dept. of Parks & Recreation (2017) 17 Cal.App.5th 277, 287.) CEQA requires that a draft environmental impact report’s project description describe the entire project being proposed for approval. (State CEQA Guidelines, § 15378; see also City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454.) These are nonnegotiable, substantive requirements of any environmental impact report purporting to comply with CEQA.
The DMEIR’s Project Description (see DMEIR 2-1 to 2-41) is inaccurate as a matter of law because it affirmatively misleads the public as to the nature of City’s newly developed EMU land use designation.4 Specifically, the DMEIR advises the public that the EMU designation is identical to the previous ECLR designation as follows:
2 Enclosed with this letter as Exhibits A, B and C, respectively, please find: (1) the City Legislative Committee agenda for the October 3, 2023 hearing on the proposed Interim Ordinance; (2) the City Staff report prepared for the October 3, 2023 hearing on the Interim Ordinance; and (3) a certified transcript of the October 3, 2023 hearing on the proposed Interim Ordinance.
3 See Exhibits A, B, and C.
4 The EMU designation is a completely new designation; such designation does not exist under the City’s current 2035 General Plan.
Mr. Scott Johnson, Senior Planner
October 10, 2023
Different name, same idea: Four existing land use designations would remain essentially unchanged in terms of land use allowances: Suburban Center would become Commercial Mixed Use (intended for small neighborhood-oriented commercial areas); Employment Center Low Rise would become Employment Mixed Use (intended for light industrial, office, and some residential, in areas transitioning to higher intensities); Employment Center Mid Rise would become Office Mixed Use (intended for primarily office-oriented uses); and Industrial would become Industrial Mixed Use. These revised designations would remove location descriptions (e.g., Center) making them more flexible for use across the city and reflect that there should be mixed uses in each area.
See GPU 2040 2-17. The DMEIR Project Description’s assertion that “land use designations would remain essentially unchanged in terms of land use allowances” is demonstrably false. As discussed in the proceeding section, the EMU designation, as further implemented by the related Interim Ordinance, will eliminate “heavy” general industrial uses, in particular, outdoor and trucking related uses.
Thus, the DMEIR’s Project Description fails to inform the public and decisionmakers of the true nature and scope of the GPU 2040 project in direct contravention of two of CEQA’s core legal mandates—that a project description be accurate and disclose the totality of the project.
This clear, legal defect impacts many, including Penske. As GPU 2040 plainly states, approximately 3,359 acres within the City will be redesignated as EMU lands. That amount of acreage translates into tens, if not hundreds, of stakeholders who have been led to believe— falsely—that their respective use allowances will remain status quo.
To the extent that the City does in fact intend for the EMU designation to permit the same range of activities currently authorized under the ECLR designation, it should update the EMU designation to expressly identify the uses authorized under ECLR as continuing to be authorized under GPU 2040’s EMU designation. To the extent such a modest update triggers changes to the DMEIR’s various CEQA resource analyses, those changes should also be made and the DMEIR should be recirculated.
3. Several of the DMEIR’s CEQA Resource Analyses Are Flawed
As a preliminary matter, we are compelled to point out that the DMEIR’s legally defective Project Description calls into question each and every analysis in the DMEIR.
However, since Penske was given no notice of the availability of the DMEIR and the running of the comment period for the DMEIR, we highlight some, but not all, of the analytical deficiencies here.
Mr. Scott Johnson, Senior Planner
October 10, 2023
a. The DMEIR’s Assessment of Air Quality Impacts Is Inadequate
The DMEIR does not consider the air quality impacts associated with displacement of general industrial uses—in particular those uses that have an operational trucking component. As discussed above, the City’s redesignation of thousands of acres to EMU, along with its adoption of the Interim Ordinance will readily and foreseeably displace industrial businesses that utilize trucks and associated commercial equipment to serve their customers in the City. Such displacement does not eliminate emissions giving rise to adverse Air Quality impacts, it merely makes them another jurisdiction’s problem. Moreover, displacement of industrial activities will indirectly increase adverse air quality impacts because these enterprises will have to travel further to provide the same goods and services they currently provide within the City. These impacts are individually considerable and cumulatively considerable and must be disclosed, evaluated and mitigated to the extent feasible.
The DMEIR also fails to disclose and analyze the air quality consequences of bringing sensitive receptors closer to pollution sources. The EMU redesignation authorizes the installation of residential uses and care facilities in locations where such uses were previously unauthorized.
In the North Sacramento Community Plan area, where the Penske Facility is located, this will result in the placement of sensitive receptors in proximity to long-standing commercial trucking enterprises and Interstate 80. These impacts are individually considerable and cumulatively considerable and must be disclosed, evaluated and mitigated to the extent feasible.
Finally, the DMEIR fails to consider the impediments GPU 2040 itself creates to the achievement of the City’s laudable air pollution reduction objectives. By way of example, Policies M-1.37 and M-1.38 call for the installation of electric vehicle (“EV”) infrastructure and the transition to EV vehicles in the private commercial sector. As discussed in detail above, Penske is at the forefront of the EV movement and has made significant EV and net zero emissions investments in other jurisdictions throughout California. However, under GPU 2040, Penske’s property and the properties of many others will be redesignated in a manner that affirmatively curtails Penske’s and others’ ability to modify and modernize their business operations to achieve GPU 2040’s air quality objectives.
b. The DMEIR’s Assessment of Greenhouse Gas Impacts Is Inadequate
The DMEIR’s greenhouse gas (“GHG”) discussion exhibits defects similar to those found in the DMEIR’s air quality section. The DMEIR does not disclose and consider the increase in GHG impacts associated with displacement of industrial businesses to more distant jurisdictions, despite the fact that it is readily foreseeable that additional vehicle trips and trips covering longer distances will increase, rather than decrease, GHG emissions. Nor does the DMEIR disclose and consider that GPU 2040’s EMU redesignation will impede the City’s achievement of GHG reduction goals. Again, if Penske and a multitude of other transportation- Mr. Scott Johnson, Senior Planner
October 10, 2023
centric businesses in the City cannot modify and modernize their existing operations because their operations become unauthorized, this will undermine fulfillment of various GHG objectives, such as Policies M-1.27, M-1.28, M-1.31 and M-1.35.
c. The DMEIR’s Assessment of Land Use and Planning Impacts Is Inadequate
The DMEIR does not disclose or evaluate GPU 2040’s potential, significant conflict with the operations of and airport land use plan(s) for the McClellan Airport (“Airport”). GPU 2040 proposes to place sensitive receptors—residential uses and care facilities—immediately adjacent to the Airport through the redesignation of those adjacent lands to EMU uses. See GPU 2040 Map LU-5. There are well-established incompatibilities in the placement of sensitive uses in close proximity to airports, not the least of which are noise incompatibilities, density and occupancy incompatibilities and the increased risk of loss of life due to an avigation incident.
None of this is addressed in the DMEIR and the DMEIR must be revised to consider this issue.
See CEQA Guidelines Appendix G, Sections VIII, X, XII.
As already discussed above, GPU 2040 proposes to inject sensitive uses—residential uses and care facilities—into established industrial areas through the EMU redesignation. The DMEIR does not discuss or analyze this incompatibility of future adjacent uses.
d. The DMEIR’s Assessment of Traffic Impacts is Inadequate
As already discussed above, the displacement of local, transport-centric businesses will result in adverse impacts to air quality and GHG emissions. Such additional travel also increases vehicle miles traveled (“VMT”). This is not disclosed or considered in the DMEIR. The DMEIR must be revised to address this impact issue.
GPU 2040 also proposes to advance residential uses northward to geographic locations that are not served by any form of public transit and do not boast any pedestrian or bike infrastructure. By way of example, consider the North Sacramento Community Plan area that is not served by the City’s and/or transit authority’s light rail system and is also bisected by Interstate 80. Establishing residential uses in that area, among others, will result in clear, foreseeable increases in VMT because those new residents will be forced to commute to reach work, schools, goods and services. Again, the DMEIR does not address this important issue and it must be revised to address this issue.
C. DUE PROCESS DICTATES THAT THE DMEIR COMMENT PERIOD BE
EXTENDED
As discussed above, Penske did not receive any notices regarding the City’s development of GPU 2040 and the CAAP. Penske was never given notice of stakeholder meetings, study Mr. Scott Johnson, Senior Planner
October 10, 2023
sessions or other meetings the City held on its formulation of GPU 2040 and the CAAP. With respect to the DMEIR, Penske never received the notice of preparation for the DMEIR and never received the notice of availability for the DMEIR. Penske is aware of several other industrial business owners who were likewise excluded from the City’s processes here. Yet, Penske and many others whose lands are proposed for redesignation are the most dramatically impacted by the City’s processes. Consequently, the City should, at minimum, extend the time to comment on the DMEIR so that some of the most impacted stakeholders can fully and fairly review the voluminous GPU 2040, CAAP and DMEIR.
Penske appreciates the City’s attention to the comments provided in this letter and welcomes the opportunity to work collaboratively with the City to address the CEQA concerns raised herein. Please do not hesitate to contact our offices on this matter—I may be reached at 415-291-7413 or at [email protected]
.
Sincerely,
Sigrid Waggener
EXHIBIT A
City of Sacramento Page 1
LAW AND LEGISLATION COMMITTEE
Katie Valenzuela, Chair, District 4
Lisa Kaplan, District 1
Eric Guerra, District 6
Rick Jennings, II, District 7
COMMITTEE STAFF
Wendy Klock-Johnson, Assistant
City Clerk
Steve Itagaki, Supervising Deputy City
Attorney
Consuelo Hernandez, Director of
Governmental Affairs
Special Meeting
Agenda
Law and Legislation
City Hall Complex
Council Chamber, 915 I Street, 1st Floor
Sacramento, CA 95814
Published by the Office of the City Clerk
(916) 808-7200
Tuesday, October 3, 2023
11:30 a.m.
NOTICE TO THE PUBLIC
Where to Find the Agenda and Staff Reports: The agenda provides a general description and staff recommendation; however, legislative bodies may take action other than what is recommended. Full staff reports are available at https://meetings.cityofsacramento.org.
Watch the Legislative Body Meeting Online: Live video streams and archives of past meetings are available at https://meetings.cityofsacramento.org.
Submit Written Comments Online: Written comments received are distributed to members, filed in the record, and will not be read aloud. Members of the public are encouraged to submit public comments electronically via eComment through the City’s Upcoming Meetings website at https://meetings.cityofsacramento.org.
Public Comment Speaker Time Limits: In the interest of facilitating the legislative body’s conduct of the business of the City, members of the public (speakers) who wish to address the legislative body during the meeting will have two minutes per speaker for Consent Calendar Items, Public Hearing Items, Discussion Calendar Items, and Matters not on the Agenda for a maximum total of eight minutes per speaker per meeting. Each speaker shall limit his/her remarks to the specified time allotment.
Notice to Lobbyists: When addressing the legislative body, you must identify yourself as a lobbyist and announce the client/business/organization you are representing.
Assistance: In compliance with the Americans with Disabilities Act, if you need special assistance, a disability-related modification or accommodation, agenda materials in an alternative format, or auxiliary aids to participate in this meeting, please contact the Office of the City Clerk at 916-808-7200 or [email protected] as soon as possible. Providing at least 72 hours’ notice will help ensure that reasonable arrangements can be made.
City of Sacramento Page 2
City of Sacramento
Law and Legislation Committee
City Hall Complex, 915 I Street, Sacramento, CA 95814
Council Chamber, 1st Floor
Special Meeting Agenda
Tuesday, October 3, 2023
11:30 AM
All items listed are heard and acted upon by the Law and Legislation Committee unless otherwise noted.
Open Session - 11:30 a.m.
Roll Call
Land Acknowledgement
Pledge of Allegiance
Consent Calendar
All items listed under the Consent Calendar are considered and acted upon by one Motion. Anyone may request an item be removed for separate consideration.
1. Law and Legislation Committee Meeting Minutes
File ID: 2023-01270
Location: Citywide
Recommendation: Pass a Motion approving the Law and Legislation Committee meeting minutes dated August 15, 2023 and September 5, 2023.
Contact: Mindy Cuppy, MMC, City Clerk, (916) 808-5442,
[email protected], Office of the City Clerk
2. Law and Legislation Log
File ID: 2022-02190
Location: Citywide
Recommendation: Pass a Motion approving the Law and Legislation Log.
Contact: Consuelo Hernandez, Director of Governmental Affairs, (916) 808-7395, [email protected], Office of the City Manager
City of Sacramento Page 3
Discussion Calendar
3. Business Operations Tax Modernization
File ID: 2023-01252
Location: Citywide
Recommendation: 1) Receive a report on options to modernize the City’s Business Operations Tax (BOT); and 2) Pass a Motion directing staff to draft a BOT modernization ballot measure for Council consideration.
Contact: Pete Coletto, Director of Finance (916) 808-5416, [email protected]; Jackie Rice, Finance Manager (916) 808-5844, [email protected]; Bryan Howard, Program Manager (916) 808-4847, [email protected], Department of Finance
4. An Interim Ordinance Relating to Commercial Truck Usage in North Sacramento and Permit Requirements Under Title 17 of the Sacramento City Code (M23-001) File ID: 2023-01180
Location: District 1, Represented by Councilmember Kaplan and District 2, Represented by Councilmember Loloee
Recommendation: 1) Review an Interim Ordinance amending various portions of Title 17 of the Sacramento City Code, related to permit requirements for certain land uses with commercial truck usage; and 2) Pass a Motion forwarding the Interim Ordinance to City Council for consideration.
Contact: Kevin Colin, Zoning Administrator, 916-808-5260, [email protected], Community Development Department
5. Outdoor Interactive Digital Media Display (Digital Kiosk) Policy - Community Outreach Findings, Ordinance, and Resolution (M23-001)
File ID: 2023-01171
Location: Citywide
Recommendation: 1) Review an Ordinance adding digital kiosks to Title 15 of the Sacramento City Code; 2) Review a Resolution providing guidelines for a future procurement process; and 3) Pass a Motion forwarding the Ordinance and Resolution to City Council for consideration.
Contact: Jamie Mosler, Associate Planner, 916-808-7875, [email protected]; Kevin Colin, Principal Planner, 916-808-5260, [email protected], Community Development Department
City of Sacramento Page 4
6. Update on the Audit of the Sacramento Community Police Review Commission File ID: 2023-00919
Recommendation: Receive and file.
Contact: Jorge Oseguera, City Auditor, (916) 808-7270,
[email protected], Office of the City Auditor
Committee Comments-Ideas, Questions and Meeting Reports
Adjournment
EXHIBIT B
City of Sacramento
Law and Legislation Committee Report
915 I Street Sacramento, CA 95814
www.cityofsacramento.org
File ID: 2023-01180 10/3/2023 Discussion Item 4.
An Interim Ordinance Relating to Commercial Truck Usage in North Sacramento and Permit Requirements Under Title 17 of the Sacramento City Code (M23-001) 2023-01180
Location: District 1, Represented by Councilmember Kaplan and District 2, Represented by Councilmember Loloee
Recommendation: 1) Review an Interim Ordinance amending various portions of Title 17 of the Sacramento City Code, related to permit requirements for certain land uses with commercial truck usage; and 2) Pass a Motion forwarding the Interim Ordinance to City Council for consideration.
Contact: Kevin Colin, Zoning Administrator, 916-808-5260, [email protected], Community Development Department
Presenter: Kevin Colin, Zoning Administrator, 916-808-5260, [email protected], Community Development Department
Attachments:
1-Description Analysis
2-Background
3-Interim Ordinance
Description/Analysis
Issue Detail: In response to a City Council log item initiated by Councilmember Loloee (District 2), staff researched the development permit trends in North Sacramento for the prior five years and discovered a concerning trend potentially at odds with draft 2040 General Plan policies relating to environmental justice. The trend concerns an increase in businesses reliant on commercial trailer and truck usage and which are located adjacent to existing residences and requiring circulation along substandard roadways (e.g., lacking sidewalks) and/or through residential neighborhoods.
City Code Section 17.916.030(A) provides that the City Council may adopt an interim ordinance imposing additional or alternative processes, rules, regulations, requirements, or prohibitions on any permits or uses that are the subject of a contemplated general plan, specific plan, transit village plan, or zoning amendment or regulation that the city council or the planning agency is considering or studying or intends to consider or study within a reasonable time.
File ID: 2023-01180 10/3/2023 Discussion Item 4.
Draft 2040 General Plan Policy EJ-A-5 seeks the establishment of new zoning regulations to address the land use issue described above and states, “The City shall develop zoning standards applicable to new and existing industrial and manufacturing developments to minimize or avoid adverse effects related to air quality, noise, or safety on sensitive populations in disadvantaged communities and other areas of the city where industrial and manufacturing uses are near residential uses, such as the Robla neighborhood.”
Consistent with this policy, city staff plans to study potential zoning measures related to new and existing industrial and manufacturing development, including those relating to commercial truck usage, to minimize or avoid potential adverse effects associated with these uses on disadvantaged communities and other areas of the city.
In the interim, however, the proposed interim ordinance will provide, on a temporary basis, regulatory changes that: (1) expand the scope of discretionary review from Site Plan & Design Review to also include a Conditional Use Permit; and (2) raise the level of review to from staff to the Planning & Design Commission. These interim changes will apply to:
· Land uses of contractor storage yard, trucking terminal yard, tractor or heavy truck sales, storage, rental, tractor or heavy truck service, repair, and distribution warehouse center; · The M-1, M-1(S), M-2, and M-T zones;
· Area bounded by city limits on the north and east, Arden Way on the south, and Steelhead Creek on the west; and
· Projects located within 1,000 of any residentially-zoned property or existing residential use, K- 12 school, childcare center, medical clinic or office, or senior housing.
The ordinance will empower the Commission to consider these uses on a case-by-case basis to ensure each project is compatible with its proposed location. Alternatively, the Commission may, unlike under today’s regulations, determine the use is not compatible and therefore not approve a Conditional Use Permit.
Policy Considerations: The following existing and proposed policies support the adoption of the interim ordinance.
2030 General Plan: Land Use Element
Goal LU 1.1 (Growth and Change): Support sustainable growth and change through orderly and well- planned development that provides for the needs of existing and future residents and businesses, ensures the effective and equitable provision of public services, and makes efficient use of land and infrastructure.
File ID: 2023-01180 10/3/2023 Discussion Item 4.
Policy LU 1.1.5 (Infill Development): The City shall promote and provide incentives (e.g., focused infill planning, zoning/rezoning, revised regulations, provision of infrastructure) for infill development, reuse, and growth in existing urbanized areas to enhance community character, optimize City investments in infrastructure and community facilities, support increased transit use, promote pedestrian- and bicycle-friendly neighborhoods, increase housing diversity, ensure integrity of historic districts, and enhance retail viability.
North Sacramento Community Plan
Policy NS.LU 1.1 (Development North of Business 80): The City shall encourage development north of Business 80 in a manner which emphasizes neighborhood cohesiveness and variety of housing types.
Policy NS.LU 1.3 (Infill Development South of Business 80): The City shall place a high priority in the city’s Capital Improvement Program towards improving street conditions and services to vacant areas south of Business 80. Upgrading neighborhood conditions is one of several actions that will be taken to encourage infill developments.
Policy NS.LU 1.4 (Industrial Infill Development): The City shall encourage infill of existing industrial sites in the Woodlake-Arden area, improve vehicular traffic access within and to the area, and continue to protect significant environmental resources.
Policy NS.LU 1.7 (Improvements North of Business 80): The City shall work with property owners to develop and implement a comprehensive strategy to install water, sewer, and drainage facilities, improve the visual appearance, and improve traffic access to the industrial area north of Business 80.
Policy NS.M 1.1 (Street Improvements): The City shall carry out improvements for streets that lack sidewalks and street lighting, are under heavy use by pedestrians, or will not be improved through new development and assessment districts.
Draft 2040 General Plan
Draft 2040 General Plan Policy EJ-A-5 states, “The City shall develop zoning standards applicable to new and existing industrial and manufacturing developments to minimize or avoid adverse effects related to air quality, noise, or safety on sensitive populations in disadvantaged communities and other areas of the city where industrial and manufacturing uses are near residential uses, such as the Robla neighborhood.”
Economic Impacts: The proposed interim ordinance is in response to an increase in truck-related
File ID: 2023-01180 10/3/2023 Discussion Item 4.
land use proposals that is consistent with statewide trends. This ordinance will not prohibit these uses from being established but will instead allow the City more discretion to consider the appropriate location for such uses.
Environmental Considerations: The proposed interim ordinance is not a project for purposes of the California Environmental Quality Act (CEQA), consistent with CEQA Guidelines 15061(b)(3) and 15378. The proposed ordinance merely imposes an additional permit requirement for specified land uses. The ordinance does not trigger additional development, but rather modifies the development review process for considering specified projects. It can be seen with certainty that there is no possibility that the proposed ordinance may have a significant effect on the environment (CEQA Guidelines 15061(b)(3). Further, the proposed ordinance has no potential to result in either a direct physical change in the environment or a reasonably foreseeable indirect physical change in the environment (CEQA Guidelines 15378). Specified projects reviewed under the ordinance will continue to be subject to CEQA review.
Sustainability: The interim ordinance concerns a land use permit requirement only (i.e., no new or different standards) and, therefore, excludes features directly related to sustainability. Existing standards related to sustainability (e.g., energy efficiency, greenhouse gas emission levels) will continue to apply to development that is approved and constructed under the interim ordinance.
Commission/Committee Action: There has been no prior action by a committee or commission. If recommended for adoption by the Law & Legislation Committee, the interim ordinance will proceed direct to City Council for consideration. Pursuant to City Code Section 17.916.030(A), review by the Planning & Design Commission is not required for an interim ordinance. Prior to the interim ordinance’s repeal, however, permanent changes to the zoning code will be presented to the Planning & Design Commission for Review.
Rationale for Recommendation: Staff recommends the Law and Legislation Committee pass a motion forwarding a recommendation of approval to the City Council. The interim ordinance imposes an appropriate temporary regulatory requirement responding to current development trends and, in doing so, ensures potentially incompatible land uses are holistically reviewed in a manner that does not exacerbate environmental justice issues.
Financial Considerations: Not Applicable.
Local Business Enterprise (LBE): Not Applicable.
ORDINANCE NO.
Adopted by the Sacramento City Council
[Date Adopted]
AN INTERIM ORDINANCE RELATING TO
COMMERCIAL TRUCK USAGE IN NORTH SACRAMENTO
BE IT ENACTED BY THE COUNCIL OF THE CITY OF SACRAMENTO:
SECTION 1. Background.
1. In North Sacramento, there has been an increase in commercial truck uses such as contractor storage yard; trucking terminal yard; tractor and heavy truck sales, storage, rental, service, and repair; and warehouse distribution center.
2. These commercial truck uses have the potential to generate noise and air pollution, as well as increase the circulation of commercial trucks in areas with inadequate infrastructure (e.g., the Robla neighborhood in North Sacramento), including roads that lack curbs, gutters, and sidewalks.
3. These commercial truck uses are also frequently located or proposed to be located near sensitive uses such as residential neighborhoods, schools, daycare centers, parks, and medical facilities, which are more susceptible to potential adverse health effects associated with commercial truck uses.
4. Most of North Sacramento has been identified by the California Environmental Protection Agency as a disadvantaged community, which is defined as a low-income area that is disproportionately affected by environmental pollution and other hazards that can lead to negative health effects, exposure, and environmental degradation. (See California Health and Safety Code, § 39711.)
5. The city is currently in the process of updating its general plan. The draft 2040 General Plan includes an element on Environmental Justice that has policies aimed at addressing pollution and adverse effects related to air, noise, and safety on sensitive uses, including those within the North Sacramento Community Plan area.
6. In addition, the city intends to study potential zoning measures related to new and existing industrial and manufacturing development, including those relating to commercial truck usage, to minimize or avoid potential adverse effects associated with these uses on disadvantaged communities and other areas of the city.
7. Until that study is complete, the city is imposing a conditional use permit requirement for commercial truck uses in certain parts of North Sacramento to allow the city to
consider these uses on a case-by-case basis to ensure each project is compatible with its proposed location.
SECTION 2.
The city council finds the following:
1. The background statements in section 1 are true and correct.
2. This interim ordinance complements, supports, and facilitates the implementation of the goals, policies, and other provisions of the general plan and the city’s specific plans and transit village plans.
3. This interim ordinance promotes the public health, safety, convenience, and welfare of the city by ensuring that commercial truck uses are properly sited to minimize potential negative effects associated with those uses.
4. Following the adoption of this interim ordinance, the city intends to study and develop zoning standards applicable to new and existing industrial and manufacturing developments to minimize or avoid adverse effects related to air quality, noise, and safety on sensitive populations in disadvantaged communities and other areas of the city where industrial and manufacturing uses are near residential uses, such as the Robla neighborhood.
SECTION 3.
Notwithstanding anything to the contrary in chapter 17.220 of the Sacramento City Code, the uses in subsection A require approval of a conditional use permit by the Planning and Design Commission if located within an area that meets all the criteria in subsection B.
A. Conditional uses.
1. Contractor storage yard
2. Terminal yard, trucking
3. Tractor or heavy truck sales, storage, rental
4. Tractor or heavy truck service, repair
5. Warehouse; distribution center
B. Location.
1. The M-1, M-1(S), M-2, or M-T zones;
2. The area bounded by the city limits on the north and east, Arden Way on the south, and Steelhead Creek on the west; and
3. 1,000 feet of any residentially-zoned property or existing residential use; school, K-12; park; childcare center; medical clinic or office; or senior housing.
SECTION 4.
This ordinance remains in effect until repealed.
EXHIBIT C
·
·
·
·
·
·
·
·
·
·
· · · · ·TRANSCRIPTION OF SACRAMENTO LAW AND LEGISLATION · · · · · · · · · · · · ·COMMITTEE MEETING
· · · · · · · · · ·OCTOBER 3, 2023 - ITEM NO. 4
· · ·AN INTERIM ORDINANCE RELATING TO COMMERCIAL TRUCK USAGE · · · · ·IN NORTH SACRAMENTO AND PERMIT REQUIREMENTS UNDER · · · · · TITLE 17 OF THE SACRAMENTO CITY CODE (M23-001) ·
·
·
·
·
·
·
· · ·TRANSCRIBED BY:
· · ·KRISHA ALATORRE
· · ·CSR NO. 13255
·1· · · · · · · · · · ·A P P E A R A N C E S
·2
·3· ·LAW AND LEGISLATION COMMITTEE:
·4· ·Katie Valenzuela, Chair, District 4
· · ·Lisa Kaplan, District 1
·5· ·Eric Guerra, District 6
· · ·Rick Jennings, II, District 7
·6
·7· ·SPEAKERS:
·8· ·Kevin Colin, Zoning Administrator
·9
10· ·PUBLIC SPEAKERS:
11· ·Nick Avdis
· · ·Ryan Hooper
12· ·Brian Manning
· · ·Todd Spurver
13· ·Keyan Bliss
· · ·Sheridon Evans
14 15
16 17
18 19
20 21
22 23
24 25
·1· · · · · · · · · · · · OCTOBER 3, 2023
·2
·3· · · · · · VICE MAYOR GUERRA:· -- so I mean, I like this is ·4· ·a whole -- fuller picture, so --
·5· · · · · · MR. JASSO:· Good morning, Committee.· Michael ·6· ·Jasso, Assistant City Manager, as well as the Director of ·7· ·Office of Innovation and Economic Development.· We have, ·8· ·and will continue to be in -- in coordination and
·9· ·discussion with not just finance, but as you mentioned, 10· ·we have, over the past two years, been in consultation 11· ·with Utilities, kind of Community Development, et cetera. 12· · · · · · Because you are absolutely right, businesses 13· ·assess their viability on any given location, based on 14· ·total cost of business.· And so, it's important that 15· ·we're aware of that, both as we think of total amounts, 16· ·as we think of timing on discrete kind of taxes, that 17· ·scenario.· It's a very important thing.· Particularly, 18· ·being fair and being predictable.· So --
19· · · · · · CHAIR VALENZUELA:· Thank you.
20· · · · · · VICE MAYOR GUERRA:· And those are -- the
21· ·predictability piece, I think that's why the phase-in may 22· ·be appropriate as well, too.· It -- and it's up to the 23· ·voters at the end of the day, too, so --
24· · · · · · CHAIR VALENZUELA:· Yes, it is.· Talk about 25· ·unpredictable, but I -- I do want to say that I -- I
·1· ·appreciate that point and I think -- and I'm trying to ·2· ·recall, but I know when the Department of Utilities came ·3· ·forward with that fee increase, I think they looked at ·4· ·some of the same cities that you've looked at for BOT. ·5· · · · · · And so, maybe there's -- it's obviously a super ·6· ·simplistic way to do it, but it would be important, I ·7· ·think, to look regionally and, you know, at comparable ·8· ·cities, you know, like, what is the actual -- like, are ·9· ·we still below what other people are, which I think we 10· ·still will be, but it would be good to have that sort of 11· ·lens, 'cause I don't want everybody just jumping across 12· ·the river to West Sac.· No offense to West Sac, but -- 13· · · · · · MR. JASSO:· Appreciate it.
14· · · · · · CHAIR VALENZUELA:· -- I want them to stay here. 15· ·Thank you.· All right.· I think we have a motion and a 16· ·second, and lots of direction.· Peter, do you have any 17· ·questions for us?· You good?
18· · · · · · MR. COLETTO:· Oh, you guys gave us a lot of 19· ·direction, so I think we're okay.
20· · · · · · CHAIR VALENZUELA:· Okay.· Excellent.· All those 21· ·in favor, please say aye.
22· · · · · · MULTIPLE SPEAKERS:· Aye.
23· · · · · · CHAIR VALENZUELA:· Any opposed?· Abstention? 24· ·Motion carries unanimously.· Thank you all very much. 25· ·The first of many big discussions today.
·1· · · · · · So Item No. 4, an Interim Ordinance Related to ·2· ·Commercial Truck Usage in North Sacramento and Permit ·3· ·Requirements.· Welcome.
·4· · · · · · MR. COLIN:· Good afternoon, Law and Legislation ·5· ·Committee Members.· My name is Kevin Colin.· I'm the ·6· ·Zoning Administrator for the City, and I'm joined today ·7· ·by Greg Sandlund, our Planning Director.· If we could, ·8· ·presentation loaded, please.· Thank you.
·9· · · · · · By way of overview, in my present -- in my 10· ·presentation today, I'll give you a overview of the 11· ·origin of this legislation, talk about some development 12· ·trends in the north part of Sacramento.· I'll summarize 13· ·our existing regulations, describe a planning issue that 14· ·we've identified, explain the interim ordinance, and 15· ·then, conclude with the recommendation of Staff.
16· · · · · · This legislation is originating out of District 17· ·2.· Back in 2021, it was a Council log item.· As
18· ·indicated on the slide, and in the Staff Report, I would 19· ·characterize our journey to today, starting very broad 20· ·and of a narrowing.
21· · · · · · We initially, in -- in consultation with the 22· ·Councilmembers' Office, worked to address some broader 23· ·concerns, with many different land uses, and had briefed 24· ·the member along that journey of time, moving forward 25· ·through 2022.
·1· · · · · · And in August of last year, concluded that a ·2· ·narrowing of focus on certain land use of compatibilities ·3· ·would be appropriate.· And then, in March of this year, ·4· ·agreed to prepare and present to you today an interim ·5· ·ordinance to address the issue.
·6· · · · · · What we have done, in advance of preparing the ·7· ·ordinance, is looked at permit activity.· These are land ·8· ·use entitlements that have been processed in the north ·9· ·part of Sacramento, with an emphasis on business types 10· ·that rely on the use of commercial trucks and trailers. 11· · · · · · These are track -- in zoning terms, they're 12· ·pretty archaic, in terms of jargon, but you can think of 13· ·businesses that park, store, repair or sell trucks 14· ·exclusively.· Contractor storage yards that also have 15· ·trucks or heavy machinery that are stored on properties. 16· · · · · · You also could think of warehouses, distribution 17· ·warehouses that rely on the -- the distribution of goods 18· ·that may spend a time in transit to a building, and then 19· ·in a building, and then leave the building and go off 20· ·premises.
21· · · · · · What we saw, in this map that you see on
22· ·display, the yellow indicates residential zoning.· The 23· ·purple is industrial zoning.· It's been simplified to 24· ·group those into two primary categories.· The icons on 25· ·the right are indicating the different permits that have
·1· ·been considered and acted on, whether they have been ·2· ·approved or in progress or withdrawn or denied.
·3· · · · · · You can see a grouping up in the northeast part, ·4· ·in the Robla community.· A little bit on the west, along ·5· ·Pell and Main.· And then, south of the freeway in the ·6· ·Norwood Industrial Park.
·7· · · · · · An interesting facet of this development
·8· ·activity is that although the areas in purple are zoned ·9· ·for industrial purposes, they were not developed entirely 10· ·for that purpose.· Time goes on.· Land uses are built 11· ·under certain regulations at a point in time.
12· · · · · · And what I'm noting here in the dark purple is 13· ·that we do have a unique grouping of what we would call 14· ·non-conforming uses.· In particular, in the areas I've 15· ·highlighted on the slide, where we have industrial zoning 16· ·on a map, but on the ground, we have homes.· We have 17· ·folks who live in a single-family unit, for example. 18· · · · · · Looking at this pattern, we consider what are 19· ·the current regulations that apply today.· For these 20· ·particular land uses and the permits I've displayed, in 21· ·the zoning districts that they are located, this can be 22· ·characterized as a By-Right Use.
23· · · · · · There is a Site Plan & Design Review Permit that 24· ·is required by City Code.· I would characterize this as 25· ·aesthetic or Architectural Review Only.· This is
·1· ·distinguished from other permits that are in City Code, ·2· ·such as a Conditional Use Permit, where we would
·3· ·additionally be able to, as a city, regulate other ·4· ·facets, such as the operation of a business, its scale, ·5· ·its size, its potential wealth, the welfare aspects of ·6· ·this that may extend beyond the boundaries of a
·7· ·particular property.
·8· · · · · · To give you a -- a visual sense of what -- what ·9· ·does this look like, I have a couple slides to show you 10· ·from an overhead view of a truck -- a truck-related use 11· ·that's in that -- that -- that -- that abutting scenario, 12· ·where we have truck use on the south, that's in the Dry 13· ·Creek/Main Avenue intersection.· And then, we have 14· ·abutting residential uses to the north on Main.
15· · · · · · Just to give you a sense of what that would 16· ·appear, from an overhead view, as we've noted in the 17· ·Staff Report, there are also particular characteristics 18· ·that have been in the City's General Plan and Community 19· ·Plan for the Robla era -- area, for example, that note to 20· ·just a roadway network that is either incomplete, in 21· ·terms of connections, or its physical development is 22· ·lacking features for drainage, for walking, for lighting. 23· · · · · · Here, we have Santa Ana Avenue, little bit 24· ·further to the east and south.· It's an example of that. 25· ·To the right, you see a property being used to park
·1· ·trailers, church on the left.· And again, another example ·2· ·of a -- of -- of a similar use of that juxtaposition. ·3· · · · · · It introduces some potential safety issues, with ·4· ·regard to circulation, whether you're walking safely on a ·5· ·roadway in -- in mingling with traffic.· There also can ·6· ·be additional issues that we've noted in the Staff Report ·7· ·that relate to air quality and noise impacts.
·8· · · · · · I'm presenting an interim ordinance, which is in ·9· ·City Code.· I will address what the code requires.· There 10· ·was a -- a inconsideration of the best potential
11· ·legislative approach for this.· We couldn't help but 12· ·notice the General Plan is out for review.· It is -- it 13· ·is, in fact, written and it has certain documents, 14· ·certain provisions that relate to topics that were 15· ·overlapping in this instance.
16· · · · · · So the environmental justice aspect, which is a 17· ·state mandated element of -- of a General Plan, is 18· ·intended to address disproportionately affected
19· ·communities that have suffered from exposure to some of 20· ·the issues that we're observing from air quality, adverse 21· ·air quality or noise impacts, as well as safety, in terms 22· ·of circulation on roadways.
23· · · · · · That policy, it is in draft format currently. 24· ·We also observed that it is intending to develop a 25· ·regulatory measure, after adoption of the General Plan,
·1· ·to address this.
·2· · · · · · How do you -- how do you reconcile neighbors, ·3· ·which may not be the best neighbors?· There is policy ·4· ·EJ-A-5 that I have on display here and noted in the Staff ·5· ·Report, where Staff has identified a policy for the ·6· ·Council to consider, and if adopted, would be implemented ·7· ·in a subsequent action by Staff.
·8· · · · · · I'd like to describe an interim ordinance.· It ·9· ·has a unique characteristic and City Code.· One analogy 10· ·you could use to describe it is it's a bridge.· If the 11· ·City identifies an issue, there's a mechanism to identify 12· ·interim measures, in ordinance format, to address the 13· ·issue while you are studying a -- a -- a topic.
14· · · · · · And in this instance, we do have a General Plan, 15· ·so it seemed to have overlapped and -- and been the 16· ·appropriate vehicle.· This is not an emergency measure. 17· ·This is not an urgency ordinance, but it would be in 18· ·place until repealed by Council.
19· · · · · · What would the ordinance do?· It would increase 20· ·the number of permits from Site Plan Design Review to a 21· ·Commission-level Conditional Use Permit.· It would apply 22· ·to the land uses that I have described in the previous 23· ·slides.
24· · · · · · When they are located in the industrial zones, 25· ·where we're seeing permit activity of M-1, M-1(S), M-2,
·1· ·M-T, we have defined a geography that I would describe as ·2· ·a result of our analysis of where are the roadway
·3· ·networks most complete, in terms of connections and their ·4· ·improvements.
·5· · · · · · So from the northeast and west on Steelhead ·6· ·Creek to the south at Arden Way is where we observed the ·7· ·potential for the roadways to not be fully developed was ·8· ·most prevalent, as opposed to going fully south to the ·9· ·river.
10· · · · · · And lastly, there is a 1,000-foot buffer from 11· ·what are defined in the California Air Resources Board 12· ·Land Use Handbook on community health is a sensitive use. 13· ·So these are homes.· So we've identified existing
14· ·residential zones, uses, schools, childcare centers, 15· ·medical clinic offices or senior housing, as identified 16· ·by the Air Board as sensitive as a buffer.· When all of 17· ·those criteria are met, a Conditional Use Permit would be 18· ·required.
19· · · · · · I do want to pause here and add on to the slide. 20· ·Since coming to the meeting today, there have been a 21· ·number of questions that have come up about what -- what 22· ·about my situation?· I already have a business, it's on 23· ·the ground.· What happens?· Are you gonna come to my door 24· ·and -- and require a permit?· So I do want to speak to 25· ·two provisions in City Code.· They're 17.232, 060 and
·1· ·100.
·2· · · · · · If this ordinance were adopted, any lawfully ·3· ·established business may continue to operate.· There is ·4· ·no permit requirement.· It's granted what the Code calls ·5· ·a deemed CUP.· If you change operations, if you
·6· ·discontinue them for a year, more than a year, then you ·7· ·would be subject to the permit requirement.· If you ·8· ·continue in perpetuity, you may exist.
·9· · · · · · Another scenario that I've explained to a few 10· ·callers is that if you expand your use, you make the land 11· ·area larger, the footprint, the building larger, you 12· ·would be subject to a CUP requirement.· So I do want to 13· ·make that clarification for -- for you all today in our 14· ·audience.
15· · · · · · Our recommendation is that you review this and 16· ·you consider passing a motion to forward it to Council. 17· ·Before I conclude, I do want to mention that in advance 18· ·of the meeting, we did provide mailed notice to every 19· ·property owner that has an industrial zone, that would be 20· ·subject to this ordinance.· That was 1,022 property 21· ·owners.
22· · · · · · Additionally, every registered association or 23· ·interest group that's within 1,000 feet of any of the 24· ·industrial zones did get a notice as well, via e-mail. 25· ·I've got a fair amount of phone calls.· Lots of -- lots
·1· ·of diverse opinion on this, so I'll -- I'll stop there ·2· ·and welcome your questions.
·3· · · · · · CHAIR VALENZUELA:· Thank you very much for that ·4· ·presentation.· Okay.· And I just want to say that this is ·5· ·a classic environmental justice issue, and the folks in ·6· ·the audience, nobody ever is -- nobody is saying that any ·7· ·business in this area did anything wrong.· You followed ·8· ·the rules.· You went where you were allowed to go.· You ·9· ·did the thing that you were supposed to do.
10· · · · · · This is really move forward ordinance
11· ·regulation.· So I just want to make sure to reiterate 12· ·what you just said, as lawfully established businesses 13· ·I'm sure will be coming up to testify, so thank you, 14· ·Kevin.· Madam Clerk, do we have public comments on this 15· ·item?
16· · · · · · CITY CLERK:· We have four speakers.· The first 17· ·speaker is Nick Avdis.
18· · · · · · MR. AVDIS:· Madam Chair, Members of the Law and 19· ·Legislation Committee, Nick Avdis, with the Law Offices 20· ·of Avdis & Cucchi, here today on behalf of Jensen
21· ·Enterprises, doing business as Jensen Precast, a
22· ·substantial industrial operation that exists off Raley 23· ·Boulevard.
24· · · · · · We were just notified of this proposed
25· ·ordinance.· I, in fact, just reviewed it yesterday, when
·1· ·my client asked about it and one of the questions that I ·2· ·think we have is whether we can have some additional time ·3· ·for Staff to do outreach to impacted property owners. ·4· · · · · · In fact, when we looked at the Staff Report, for ·5· ·example, I know Jensen's operations are outside of the ·6· ·boundary for the disadvantage community designation. ·7· ·Sensitive to your comments, Member Valenzuela, I do think ·8· ·that this needs to bake a little bit more and in terms of ·9· ·working through the details and not impacting existing 10· ·business and property owners any more than -- than is 11· ·necessary.
12· · · · · · Furthermore, I think it's interesting that it's 13· ·based on a policy and the proposed General Plan, which 14· ·hasn't been adopted yet.· And certainly, this issue that 15· ·has been articulated by Staff, in terms of disadvantaged 16· ·communities and the environmental justice issue, it 17· ·applies city wide.· And I think there needs to be a 18· ·broader discussion, because piecemealing this is going to 19· ·be extremely painful.
20· · · · · · So I would ask that this be continued, for at 21· ·least the next Law and Legislation meeting, to give 22· ·property owners and business owners an opportunity to sit 23· ·down with Staff.· And certainly want to sit down with the 24· ·Councilmember for the District.· We were not aware that, 25· ·again, that this was something that was on a table -- on
·1· ·the table.· No outreach was done.
·2· · · · · · So again, I would ask this item be continued to ·3· ·give ample opportunity to work through some of the issues ·4· ·we're having.· I mean, Jensen, for example, employs over ·5· ·a thousand people across its operations.· And this is a ·6· ·very critical site.· It produces components that are ·7· ·needed for --
·8· · · · · · CITY CLERK:· Thank you for your comments.· Your ·9· ·time is complete.· Our next speaker is Ryan Hooper. 10· · · · · · MR. HOOPER:· Good afternoon, Chair Valenzuela, 11· ·Members of the Law and Legislation Committee.· My name is 12· ·Ryan Hooper, with Thatch & Hooper.· We're representing 13· ·Don Starr, with respect to his property located at 2328 14· ·Downer Way in North Sacramento.
15· · · · · · Just by way of background, our client has owned 16· ·this property since 2008.· He's made a substantial 17· ·investment in this location.· He's been a good operator. 18· ·He's had no known violations of any City Code, code 19· ·enforcement issues or the like.· He's essentially a 20· ·landlord.· He has this property.· It's a little over an 21· ·acre and a quarter.· And he's a landlord to various 22· ·different ma and pa type industrial users.
23· · · · · · As Councilmember Kaplan had pointed out earlier 24· ·on the last item, these small businesses are really 25· ·the -- the bread and butter of the -- of the city and
·1· ·they are entitled, I think, to -- to some deference when ·2· ·we're looking at these zoning changes.
·3· · · · · · I think that our client, and others probably, ·4· ·have an expectation of continued use and -- and value, ·5· ·and that's really where the concern lies.· We've worked ·6· ·with Staff.· We've only known about this for a short ·7· ·period of time, as Mr. Avdis acknowledged.· We, too, ·8· ·would like some additional time for outreach with Staff. ·9· · · · · · Our -- our concern isn't so much moving forward, 10· ·it's how to make sure that we've properly protecting the 11· ·rights of those that are already out there in business. 12· ·And so, we would be looking for clarification that all of 13· ·the existing uses that our client has on their property 14· ·would indeed be permitted to continue.
15· · · · · · And again, just ask for some additional time to 16· ·work with Staff.· I detected some willingness from my 17· ·conversation this morning with Staff to do so.· Thank you 18· ·very much.
19· · · · · · CITY CLERK:· Thank you for your comments.· Our 20· ·next speaker is Brian Manning.
21· · · · · · MR. MANNING:· Good afternoon, Brian Manning, 22· ·from the Desmond Firm, on behalf of Jensen Precast and 23· ·(Unintelligible) Trust, who own four properties in the 24· ·area.
25· · · · · · I would also echo that this -- the outreach has
·1· ·been essentially non-existent.· I saw this morning that ·2· ·there were six months ago that there was a presentation ·3· ·and request that this be provided to the Staff now, and ·4· ·this is the first we're hearing about it less than a week ·5· ·later.· So we request additional time to have those ·6· ·stakeholder discussions.
·7· · · · · · Also, there's no real indication of how long ·8· ·this will last.· And it is a significant impact on ·9· ·existing businesses, as well as properties within the 10· ·area that are not yet developed.· There's no indication 11· ·of when this will sunset or when people will be able to 12· ·proceed forward with a basic understanding of what they 13· ·can expect.
14· · · · · · Also, I -- I think that it is missing the point 15· ·in that you're treating one group in a different manner 16· ·than other similarly situated property owners.· And 17· ·that's, in my view, a violation of the Equal Protection 18· ·Clause, because what you're doing is you're taking 19· ·properties in industrial areas in North Sacramento and 20· ·saddling them with different rules and regulations than 21· ·those exist in South Sacramento.
22· · · · · · And so, while the -- the -- the issue may be 23· ·laudable and the environmental justice is certainly 24· ·something that we all need to discuss.· I don't think it 25· ·can be applied unequally.
·1· · · · · · Also, this will result in a -- in my view, a ·2· ·reduction in property values, and a downzoning of
·3· ·property.· And I don't think any of these issues have ·4· ·been discussed or considered, which is why we believe we ·5· ·need additional time.· Thank you.
·6· · · · · · CITY CLERK:· Thank you for your comments.· Our ·7· ·next speaker is Todd Spurver.
·8· · · · · · MR. SPURVER:· Hello.· My name is Todd Spurver ·9· ·and thank you very much for allowing me to talk.· I am a 10· ·property owner in the area.· I have two.· I've been 11· ·actually looking at the map on my phone today.· I think I 12· ·actually have three properties that would be affected by 13· ·this.· No one has notified me, ever, of this.· I heard 14· ·about it from a tenant, sent me a text or a -- a text 15· ·photo of the notification saying, "Hey, is this
16· ·important?"
17· · · · · · As a property owner, I -- I contacted this 18· ·morning -- I contacted -- I'm partners with one, two, 19· ·three, four, five -- I'm -- I'm partners with five other 20· ·individuals on these buildings.· No one has been
21· ·contacted.· So absolutely, I'm -- I'm begging you guys to 22· ·give us time to actually analyze what this is and what 23· ·this means.
24· · · · · · The other thing I want to talk about is the 25· ·pictures that -- that this gentleman showed, where
·1· ·there's a house on one side and a warehouse on the other. ·2· ·The properties that I have, a few of them, as an example, ·3· ·are on Main and Pell.· That area was specifically
·4· ·developed for heavy industrial.· You come off of
·5· ·Northgate, it's a heavy industrial road.· It's not a ·6· ·residential road.· You come on Main, that is a heavy ·7· ·industrial road.· Pell Avenue is a heavy industrial road. ·8· · · · · · As you'll notice by my attire today, by the way, ·9· ·which is not the attire to speak to a Council in, but 10· ·it's the attire to go pick up a trailer, where I'm going 11· ·to pick up trash, because of the amount of homeless 12· ·people that dump all of their stuff on our properties 13· ·every day.
14· · · · · · You're talking about adding additional expenses 15· ·to -- to businesses in the area, to property owners in 16· ·the area.· You're gonna devalue my property.· You're 17· ·gonna cause them to move to other locations.· This isn't 18· ·right.
19· · · · · · First of all, time is important.· I needed to be 20· ·notified.· And it's not fair.· And no one that I've 21· ·talked to has been notified, other than some of my 22· ·tenants.· Thank you for your time.
23· · · · · · CITY CLERK:· Thank you for your comments.· Our 24· ·next speaker is Keyan Bliss.
25· · · · · · MR. BLISS:· Greetings, Council.· I'm speaking as