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HomeMy WebLinkAboutRPT 3 NCCP PROG STATUS 05-17-93nr_G t�lf14 REPORTS h0. 3 5-17-93 Inter -Com ^,TE: MAY 17, 1993 t� TO: WILLIAM A. HUSTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBJECT. NATURAL COMMUNITIES CONSERVATION PLANNING (NCCP) PROGRAM STATUS Authorize the Assistant City Manager to execute any future Memorandum of Understanding with the County of Orange for the preparation of a Natural Community Comprehensive Plan. FISCAL IMPACT There are no direct fiscal impacts to the City as a result of this — program at this time. The cost of the program would be paid for by land owner participants. As the Council is aware, the State of California Resources Agency, in conjunction with the Department of Fish and Game and the U.S. Fish & Wildlife Service, has undertaken a Natural Communities Conservation Planning (NCCP) program. This program was established in 1991 under legislation sponsored by Assemblyman Dave Kelly (AB - 2172). The program focuses on the protection of coastal sage scrub from a regional perspective before it becomes so fragmented or degraded as to require listing of species, particularly the California gnatcatcher and cactus wren, as endangered under the state and/or federal Endangered Species Act. In May of 1992, the City of Tustin enrolled in the NCCP program as a local public agency committing to a variety of points in the protection of coastal sage scrub from loss or degradation. The NCCP program is designed to be voluntary and to give jurisdictions flexibility in making advance plans, and to give more certainty to property owners and builders as they make development decisions and investments. City Council Report Natural Communities Conservation Planning (NCCP) Program Status May 17, 1993 Page 2 DISCUSSION The NCCP program is being viewed as a potential nationwide model for shifting the endangered species efforts from the current single species protection effort to that of ecosystem planning which incorporates compatible economic development. Orange County is well positioned to be the first California jurisdiction under the NCCP program to complete the multi -species habitat plan as an alternative to the Federal and State Endangered Species Acts. At this time, the Orange County Environmental Management Agency (EMA) is designated as the lead agency in the preparation of the NCCP plan for the entire county. Before an NCCP plan can be undertaken, EMA must enter into a Memorandum of Agreement (MOA) with the state and federal resource agencies. As a local agency participant, the City of Tustin will be asked to be a signature Party to the -MOA. The Draft MOA (Attachment A) establishes the guidelines and procedures that will be followed by the California Department of Fish and Game, USFWS, EMA and participating local agencies and land owners in the preparation of the NCCP plan. The City's role in the MOA would be primarily related to review and comment on the NCCP plan and related environmental documents. The Assistant City Manager would be prepared to execute the MOA on behalf of the City of Tustin once the final agreement is received from EMA. Once the NCCP plan is approved by the state and federal agencies, an Implementation Agreement would need to be executed between the federal and state agencies, EMA and the City of Tustin. It would be this Implementation Agreement that would specify mitigation measures, if any, that the City of Tustin or respective land owners would be responsible for in treating coastal sage scrub. On March 25, 1993, the U.S. Fish and Wildlife Service (USFWS) listed the California Gnatcatcher as a "threatened species". The Federal Endangered Species Act prohibits anyone from taking a gnatcatcher, which includes killing, harming, or harassing the species. In practice, this means that effective immediately, the coastal sage scrub habitat which supports the gnatcatcher can not be disturbed without consulting with the USFWS. Within the City of Tustin, only portions of the hillside areas within the East Tustin Specific Plan were originally enrolled in the NCCP by the City (Attachment B). The Irvine Company, as a land owner, enrolled Lots 12, 13, 24 and 25 of Tract 13627 and the County of Orange, as a land owner, enrolled Peter's Canyon Regional Park in the program. In addition to these parcels previously City Council Report Natural Communities May 17, 1993 Page 3 Conservation Planning (NCCP) Program Status 1, enrolled, Lots 7-11 of Tract 13627 may also contain coastal sage scrub. Under the current gnatcatcher listing, no coastal sage scrub can be removed without specific approval by the USFWS which we understand will be an extremely lengthy process given the present sensitivity surrounding the listing. If no coastal sage scrub is to be removed, as verified by a vegetation map prepared by a qualified biologist, plans may be approved and permits for grading may be issued. CONCLUSION The Community Development Department will continue to be involved with the preparation of the NCCP plan as it relates to the City of Tustin and will report to the Council periodically on the program status. /Z Daniel Fox, AICP Senior Planner CAS:DF:nccpstat.df1 Christine A.Shin- ee of n Assistant City M rnager Attachments: A - Draft Memorandum of Agreement B - NCCP Enrollment Map MEMORANDUM OF AGREEMENT REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN FOR THE COASTAL/CENTRAL ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM ATTACHMENT A MEMORANDUM OF AGREEMENT BY AND AMONG THE CALIFORNIA RESOURCES AGENCY, THE CALIFORNIA DEPARTMENT OF FISH AND GAME, THE UNITED STATES FISH AND WILDLIFE SERVICE, THE COUNTY OF ORANGE, 7446-CITIE$4 WITHIN ORANGE COUNTY THE TRANSPORTATION CORRIDOR AGENCIES, . and THE IRVINE COMPANY REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN FOR THE COASTAL/CENTRAL ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM MEMORANDUM OF AGREEMENT REGARDING THE PREPARATION OF A NATURAL COMMUNITY CONSERVATION PLAN _ FOR THE COASTAUCENTRAL ORANGE COUNTY SUBREGION OF THE COASTAL SAGE SCRUB NATURAL COMMUNITY CONSERVATION PROGRAM THIS MEMORANDUM OF AGREEMENT ("MCA' or'Agreement") dated as of 1892 Is made by and among the CALIFORNIA RESOURCES AGENCY ("Resources Agency"). an agency of the State of California, CALIFORNIA DEPARTMENT OF FISH AND GAME ('CDFG'), a department of the Resources Agency, the UNITED STATES FISH AND WILDLIFE SERVICE ("USFWS'), an agency of the Department of Interior of the United States of America, the COUNTY OF ORANGE ('County'), a political subdivision of the State of California, the SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY and FOOTHILUEASTERN TRANSPORTATION CORRIDOR AGENCY (collectively,'TCA"), joint powers authorities, THE CITIES* OF (collectively 'Cities'), and THE IRVINE COMPANY The County, �— _ and ft Cities --may be referred to as 'Local Governments'; THE IRVINE COMPANY — is referred to as 'Landowner'; and all of tho above-described entities may be referred to collectively as'Parties' and each individually as a'Party'. As among the nonfederal signatories to this MOA, this Agreement serves as the "Planning Agreement' described in the Southern California Coastal Sage Scrub Natural Community Conservation Planning Process Guidelines (dated September 1, 1992) (the "Process Guidelines") This Agreement shall be effective as to all executinc and the Landowner. 1.0 RECITALS, 1.1 The purpose of this Agreement is to establish the guidelines and procedures that will be followed by the Parties in the preparation of a Natural Community Conservation Plan ("NCCP Plan") for the Coos nI/Central Orange Counh, Subregion of Orange County with regard to the California anatcatcher and other related Target Species, as described herein, 1.2 The Natural Community Conservation Planning Program ("NCCP Program") is estahlished by California law under the Natural Community Conservation Planning Act of 1991 (Fish & G. Code, § 2800 et seo,) ('NCCP Act"). CDFG is the trustee agency implementing the NCCP Act. 1.3 The purpose of the statewide NCCP Program is to provide for regional protection and perpetuation of natural wildlife diversity while allowing . I . I . 1 .. I _ _ — — — - -- compatible and appropriate development and growth. The NCCP Program intends that these goals be achieved through the developmerrtand implementation of Natural Community Conservation Plans. The NCCP Program is designed to provide an alternative to current single species conservation efforts by formulating regional, natural community based habitat protection programs to protect the numerous species inhabiting each of the targeted natural communities. The Parties believe that the shift in focus from single species to natural communities will enhance the eftectiveness of ongoing species preservation efforts. 1.4 The coastal sage scrub ('CSS") NCCP Program ("CSS NCCP Program's is the first effort to be undertaken pursuant to the NCCP Act. It is intended to be undertaken as a pilot project to develop a process for accelerated conservation planning at a regional scale, and it is contemplated that the NCCP process for coastal sage scrub may serve as a model for other efforts elsewhere In the State. This planning process is sponsored jointly by the California Resources Agency and CDFG, and conducted in cooperation with USFWS, pursuant to a Memorandum of Understanding between CDFG and UGFWS dated December 4, 1991. 1.5 The CSS NCCP Program creates a regional planning and management system designed to protect coastal sage scrub habitat and to reconcile conflicts between habitat protection and new development within Southern California. The study area established for the CSS NCCP Program includes existing coastal sage scrub habitat in portions of five counties, including Orange County. The CSS NCCP Program anticipates that NCCP plans will be prepared for designated planning subregions. This Agreement is intended to establish the planning process for development of an NCCP Plan in the CoastaVCentral Orange Court y f'"� ,�GERT,":AME GF Ei3$REGIGN} Subregion of the CSS NCCP program. As among the nonfederal signatories to the MOA, the Agreement serves as the 'Planning Agreement' called for in the Process Guidelines. . 1:.6 The CSS NCCP Program contemplates an 18 month planning period from May 1, 1992 to October 31, 1993. Prior to and during this planning period, landowners and local governments have enrolled in the CSS NCCP Program by entering into voluntary agreements with CDFG. To the extent described in the enrollment agreements, no activity that would cause disturbance of CSS is allowed on land subject to a Landowner or Land Management Agency enrollment agreern>ont during the planning period, other than actions mandated for public safety. This Agreement is not intended to replace the enrollment agreements. 1.7 USFWS and CDFG have identified a number of rmnxnal, bird, reptile and plant species which u ilize coastal sage scrub habitat as species which are 'C Draft NCCP Agreement March 30, 1993 [Indiratincg Changes From 03122/93 Draft] 630-3101 E.oC i candidates for, or have been proposed for listing, pursuant to the Federal Endangered Species Acl, 1 o U.S.C. sections 1531 et =. ('ESA') or the California Endangered Species Act, Fish and Game Code sections 2050 at s=. ("CESA"). Among these species are the California gnatcatcher (Polioptila califomica califomica), the cactus wren (Campylofhynchus brunneicapiJlus), and the orange -throated whiptail lizard (Cnemidophorus hyperythrus beldingi). 1.8 The Landowner is the owner of certain real property situated in the County of Orange, State of California, within the Coastal/Central Orange County Subregion (the 'Landowner's Property"). The Landowner's Property is currently used for a variety of purposes including, but not limited to, conservation, agricultural, residential and commercial purposes. 1.9 The Landowner, Local Governments, and TCA, have participated in long-term regional planning efforts to conserve contiguous open space, recreational and wildlife habitat areas. At present in the CoastallCentral Subregion of the County, thore are approximately 31.160 ---acres of large habitat areas in dedicated regional open space and project -committed open space. These regional planning efforts have been conducted to reduce and mitigate the impacts of development, and have been coordinated with regional planning of development to meet housing and employment goals and the infrastructure needed to support those goals. The Parties intend that the NCCP Process be integrated with the regional open space planning which has already taken place to identify and ensure appropriate mitigation for impacts on fish and wildlife, and to promote the conservation of broad-based natural communities and species diversity. 1.10 The Parties recognize the important role public and private partnerships play in protecting and enhancing the habitat and survival of species which are presently unlisted as well as those which are listed or proposed for listing. The Pa -les acknowledge that Congress recognized this role in conjunction with the 1982 Arn3ndments to the ESA. Congress expressed its intent regarding encouraging such partnerships for unlisted, as well as listed species, as follows: (a) Application to Unlisted Species "Although the conservation plan is keyed to the permit provisions of the Act which only apply to listed species, tie Committee intends that conservation plans may address both listed and unlisted species." Draft NCCP Agreement March 30, 1993 (Indicating Changes From 03/22/93 Draft] 030E101Eocl U4/U7, 9 li :Ui _ui 14 6 SUUV (b) Public Privatg PAEZg�rship_s "To the maximum "Went possible, the Secretary should utilize this authority under this provision to encourage creative partnerships between the public and private sectors .... (c) Long -Tenn Assurance Provided byand for the Habitat Conservation Plan PropoOgpt `The Secretary, In determining whether to issue a long-term permit to carry out the conservation plan should consider the extent to which the conservation plan is likely to enhance the habitat of the listed species or Increase the long-term survivability of the species or its ecosystem." . _ . "Permits of 30 or more years duration may be appropriate in order to provide adequate assurances to the private sector to commit to long-term funding for conservation activities or long-term commitments Io restrictions on the use of land.0 (d) Reciprocal Assurances to be Provided y the Service "The Committee intends that the Secretary may utilize this provision to approve conservation plans which provide long- torm commitments regarding the conservation of listed as well as unlisted species and long-term assurances to the proponent of the conservation plan that the terms of the plan will be adhered to and that further mitigation requirements will only be imposed in accordance with the terms of the plan. In the event that an unlisted species addressed in an approved conservation plan is subsequently listed pursuant to the Act, no further mitigation requirements should be imposed if the conservation plan addressed the conservation of the species and its habitat as if the species were listed pursuant to the Act' (H.R. Rep. No. 97-835, 97th Cong., 2d Sess. 30 (1982).) 1.1 1 The CSS NCCP Program, pursuant to California law, provides a mechanism for the turtherance of the goals of the ESA and CESA with respect to conservation of species. In enacting the NCCP Art, the Califomia Legislature stated the following: -4- Draft NCCP Agreement March 30, 1993 [indicating Changes From 03/22/93 Draft] 9336101E=1 ;/07/93 17:06 (a) The continuing population growth in California will result in increasing demands for dwindling natural resources and result in the continuing decline of the state's wildlife. (b) There is a nocd for broad-based planning to provide for effective protection and conservation of the state's wildlife heritage while continuing to allow appropriate development and growth. (c) Natural community conservation planning is an effective tool in protecting California's natural diversity while reducing conflicts between protection of the state's wildlife heritage and reasonable use of natural resources for economic. development (d) Natural community conservation planning promotes coordination and cooperation among public agencies, landowners, and other private interests, provides a mechanism by which landowners and development proponents can effectively participate in the resource conservation planning process, provides a regional planning focus which can effectively address cumulative Impact concerns, minimizes wildlife habitat fragmentation, promotes multispecies management and conservation, provides one - option for identifying and ensuring appropriate mitigation for impacts on fish and wildlife, and promotes the conservation of broad based natural communities and species diversity. (e) Natural community conservation planning can provide for efficient use and protection of natural and economic resources while promoting greater sensitivity to important elements of the state's critical natural diversity. (f) Natural community conservation planning Is an effective planning process which can facilitate early coordination to protect the interest of the state, the federal government, and local public agencies, landowners, and other private parties. (g) Naturel community conservation planning is a mechanism that can provide an early planning framework for proposed development projects within the planning area in order to 5 - Draft NCCP Agreement March 30, 1993 [indicating Changcs From 03/22/93 Draft] 9338101E.001 uau;, aJ 1;:u. uuuu avoid, minimize„and epmpensate for project impacts to wildlife. (h) Natural community conservation planning is consistent with and will support the fish and wildlife management activities of the Department of Fish and Game in Its role as the trustee for fish and wildlife within the state. (i) The purpose of natural community conservation planning is to sustain and restore those species and their habitat identified by the Department of Fish and Game which are necessary to maintain the continued viability of those biological communities impacted by growth and development 1.12 The Parties agree that subject to the requirements of the ESA and CERA, in the event that any of the Turget Species are listed as athreatened species or an endangered species under the ESA or CESA, or as a candidate species under the CESA, and in the absence of Unforeseen Circumstances, the approved NCCP Plan and Implementing Agreement developed pursuant to this Agreement will be treated as a Habitat Conservation Plan ("HCP') by USFWS in connection with the Issuance of Section 10(a) permits, and will be relied on by USFWS in issuing Seuliun 7 biological opinions; and will be treated as a habitat conservation plan by CDFG in connection with the isbuance of Section 2081 Permits, and as the basis for findings and determinations pursuant to Fish and Game Code Section 2090 p -t =. 2.0 DEFINITIONS. 2.1 California Endangered Species Act. The "California Endangered Species Act" or'CESA' shall mean the California Endangered Species Act, Fish and Game Code section 2050 j t =. 2.2 Califomia C'natcatcher. The 'California gnatcatcher' or "gnatcatcher” shall mean the California gnatcatcher (Polioptila califomica califo; nica), including the eggs and all other life stages thereof. 2.3 Cactus Wren. "Cactus wren" shall mean the coastal population of the cactus wren (Campylorhynchus bnlnneicapillus), including the eggs and all other life stages thereof. Draft NCCP Agreement — March 30, 1993 [Indicating Chanccs From 03122/93 Draft] S308101 E.OZ: 1 U4" UT, 95 17:06 T14 655 9u" G E e E OC 2.4 Orange -Throated Whiptail Lizard. 'Orange -throated whiptail lizard" shall moan the orange -throated whlptail lizard {Cnemidophorus hyperythrus beldingQ including the eggs and all other life stages thereof. 2.5 Conservation Reoresontatives. "Conservation representatives" shall mean representatives of national and local environmental groups. 2.6 CoastaUCentral Orange County Subregion. The'Coastai/Central Orange County Subregion' as generally shown in Exhibit A , attached hereto, refers to the C;nactal/Central Orange County subregion of tho C86 NCCP Program within Orange County. This Agreement is intended to establish the planning process leading to an NCCP Plan covering the CoastaUCentral Orange County Subregion. 2.7 CESA Candidate Species. 'CESA Candidate Species" shall mean those species listed as candidates for listing as endangered or threatened pursuant to Fish and Game Code section 2074.2. 2.8 CSS Species. 'CSS Species' shall mean those species other than tie Target Species, associated with coastal sage scrub habitat, including but not limited to those species identified by the Scientific Review Panel ('SRP") as associated with coastal sage scrub habitat CSS Species will be identified in each subregional NCCP Plan. 2.9 Enclangered Species Act 'Endangered Species Act' or "ESA' shall mean the Federal Endangered Species Act of 1873, as amended. 16 U.S.C. § 1531 et M. 2.10 Habitat. 'Habitat' shall mean the area occupied by or suitable for occupation by particular wildlife species. Areas capable of restoration may be considered habitat for Target Species, for purposes of mitigation. 2.11 jHCP. 'HCP" shall mean a Habitat Conservation Pian pursuant to section 10 of the ESA. 2.12 AHrP, `AHCP" shall mean an Advance Habitat Conservation Plan. 2.13 NCCP Plan. "NCCP Plan" shall mean the plan for conservation of the coastal sage scrub natural community in the Coastal/Central Orange County Subregion, with special emphasis on tie Target Species, prepared pursuant to this Agreement. The NCCP Plan shall be developed to meet the requirements for issuance of a section 10(a) permit under the ESA and a section 2081 permit under CESA. The -7- Draft NCCP Agreement March 30, 1Pg3 [Indicating Changes From 03/22/93 Draft] s3MICIEA'1 U.i U7, 9a 17:1u V=11. 635 NUuu_ N NCCP Plan shall be deemed to be an Advance Habitat Conservation Plan and HCP covering the Target Species for purposes of the LSA. 4_Ulu 0:7 2.14 Planned Activities, 'Planned Activities' shall mean the development of planned communities and major regional infrastructure improvements, including development of certain transportation corridors, as well as other development activities within the Coastal/Central Orange County Subregion as physically delineated or evaluated in the NCCP Plan. 2.15 Propped Listing. 'Proposed listing' shell mean the proposed listing by USFWS of one or more of the Target Species as either an 'endangered species' or a 'threatened species,' the proposed designation of the habitat of any such Target Species as 'critical habitat' pursuant to the ESA, or the proposal to list a Target species as 'endangered" or "threatened", or to designate a species as a CESA Candidate Species by the California Fish and Game Commission pursuant to CES;%. 2.16 Section 10(a) Permit. 'Section I o(a) Permit' means any permit issued pursuant to section 10(a) of the ESA to permit takings of endangered species or threatened species which may occur as a result of the Planned Activities. 2.17 Section 2081 Permit. 'Section 2081 Permit means any permit issued by CDFG pursuant to the CE8A to authorize the fake of endangered species or threatened species or CESA Candidate Species which may occur as a result of the Planned Activities. 2.18 Taking. "taking' or `take" shall have the same meaning as provided in the ESA with regard to any activities subloct to the ESA, and shall have the same meaning as provided in state law with regard to activities subject to the CESA. 2.19 Target Species. 'Target Spades' are: a. California gnatcatcher (Poli�tile califomica califomica); b. Cactus wren (Campylorhynchus brunneicaDiAus); C. Orange -throated whiptail lizard (Cnemido hhorus hyoerythrus beldin . These species are to be the focus of conservation planning efforts leading to a NCCP Plan for the CoastallCentral Orange County Subregion and shall be treated in the NCCP Plan as if they were listed as an endangered species with regard to any NCCP Draft NCCP Agreement — March 30, 1993 [Indicating Changes From 03/22/93 Draft] 8308101 E.Q__i 04/07: 97 IT:10 $714 605 9000 \ G K h E , UC Plan to which section 4.0 shall apply. In the sole discretion of the Local Governments and the Landowner, the NCCP Plan for the CoasTdUGentral Orange County Subregion may identify additional species as Target Species. Addressing the conservation needs of the Target Species is anticipated to provide significant protection for the coastal sage scrub natural community in general. 2.20 Unforeseen Circumstances. "Unforeseen Circumstances" shall mean (i) a significant adverse change in (A) the population of a Target Species, (B) the habitat and other biological resources of the Coastal/Central Orange County Subregion, or (C) the anticipated impacts of the Planned Activities or in other factors upon which the NCCP Plan/HCP is based, or (ii) any significant new or additional information relevant to an NCCP Plan/HCP (including information presented during a public comment period on a permit application or proposed rule) that was not anticipated by the Parties at the time the NCCP Plan/HCP was approved and that would likely result in a significant adverse change in (A). (B) or (C) above. The NCCP Plan/HCP will idontify significant adverse changes which are anticipated, both in the long and short term. The existence of Unforeseen Circumstances shall be established in accordance with section 4.10 until or unless modified in an approved Implementing Agreement. 3.1 Project Coordinators. Each party shall designate a Project - Coordinator to monitor the implementation of this Agreement and to coordinate communication among the Parties during the NCCP Process. Each party shall notify each other party of their respective Project Coordinators in writing within fourteen (14) days of the effective date of this Agreement. mosuns ..F -won: 3.2.1 The Paries understand that the Secretary of The Resources Agency of the State of California has convened a Scientific Review Panel ('SRP'). The SRP will review ani evaluate existing information regardinC the biology, conservation, and protection of Target Species and will develop recommended standards necessary for the conservation and protection of these Target Species throughout the CSS study area. These recommendations will encompass conservation guidelines for the CSS naturai community throughout the study area. 3.2.2 Information and analysis undertaken by the SRP shall be presumed to constitute the best information available unless further credible analysis or investigation show the contrary. .0- Draft a Draft NCCP Aq. eement March 30, 1993 [Indicating Changes From 03/22/93 Draft) 8308101 E.0 : 1 Oa0;i95 17:11 $714 605 9001 F G 1: a E UC 3.3 Preparation of the NCCP Plan and Environmental Documentation. 3.3.1 The NCCP Plan/HCP will be prepared In conjunction with environmental documentation pursuant to, tho California Environmental Quality Act ('CEQA') and the National Environmental[' P icy Abt ("NEPA'). The Parties intend that public review of the NCCP Plan/HCP and the CtUA and NEPA documentation will occur simultaneously through the public review process described below in section 3.3.7 and section 3.4. It is contemplated that the NCCP PIan1HCP, the EIR, and the EIS, will be prepared as a single integrated documont ("NCCP Plan/EIWEIS"). If the NCCP Program Is certified pursuant to Public Resources Code Section 21080.5, the NCCP Plan shall satisfy the requirements of Section 21080.b regarding the preparation of a CEQA environmental document. 3.3.2 The NCCP Plan/HCP shall treat the Target Specios in the Coastal/Central Orange County Subregion as though they were listed as 'endangered species' under the ESA and CESA for the purposes of developing conservation measures and proposed takings of the Target Species. The Draft NCCP Plan/HCP for the C-oastaMentral Orange County Subregion will address the requirements of both the CESA and the ESA. 3.3.3 The NCCP Plan/HCP shall be prepared in a manner consistent with the provisions of the Process Guidelines. Consistent with the habitat coriservation planning - requirements for listed species contained In section '10(a)(2)(A) of the ESA, 50 C.F.R. § 17,22(b) and 50 C.F.R. § 17.32(b) the Draft NCCP Plan/HCP shall specify the habitat requirements for the Target Species, the impacts likely to result from the proposed taking of one or more Target Spooies, tho measures that will be undertaken to monitor, minimize and mitigate for such impacts, the funding that will be made available to underkike such measures, the procedures to address Unforeseen Circumstances, identification of funding mechanisms and other assurances that the NCCP Plan/HCP will be carried out, and additional measures that the CDFG or USFWS may require as necessary or appropriate_ The Draft NCCP Plan/HCP shall include provisions governing the amendment of the NCCP Plan/HCP. 3.3.4 The Counts, snail act as Lead Agency for the development of the NCCP Plan/HCP and for preparation of environmentai documentation pursuant to CEQA. The Parties acknowledge that the County is appropriately the Lead Agency for preparation of the NCCP Plan/EIR because of the need for county -wide planning and coordination, and because the County will have the greatest responsibility for supervising the NCCP Plan. CDFG shall act as a Responsible Agency as well as a Trustee Agency under CEQA. Local Governments other than the County shall be 10- _ Draft NCCP Agreement March 30, 1993 [Indicating Chances From 03/22/93 Draft] 9308101E.001 !; . 04/07' 93 17:1 _ �i 16 835 9000 G E S E OC CU13i 0.7 Responsible Agencies under CEQA, and shall be consulted in the preparation of the NCCP PlanrEIR, and at a minimum, shalt have the opportunities for comment described in section 3.4. 3.3.6 UGFWS shall be responsible for compliance witli NEPA in connection with the NCCP Plan/HCP. The County shall act as the local co -lead agency for compliance with NEPA pursuant to 40 C.F.R. section 1506.2(c). To the maximum extent practicable, USFWS will coordinate its obligations under NEPA with corresponding state and local obligations under CEQA and the NCCP Act Coordination is expected to include the following: a. completion of a joint EIR/EIS; b, joint conduct of "scoping' meetings, public hearings anO participation in other joint NEPA/CEQA activities; c. the joint EIR(EIS shall be prepared and funded in conjunction with the NCCP Plan/HCP. 3.3.6 Pursuant to Fish and Game Code section 2840, CDFG shall be compensated for costs incurred in participating In the planning process and reviewing tho NCCP Plan. The terms of CDFG compensation shall be set forth In a separate compensation agreement. 3.3.7 A preeesedchedule for preparation and distribution for review of the NCCP Plan/HCP and associated environmental documentation cons'stent with this Agreement shall be propored by the Parties ie attmehed herete a2 Exhibit—("NCCP Schedule"). The Parties agree to use their best efforts to comply with the NCCP Schedule. The Parties acknowledge that regular discussions will be convened with conservation representatives in addition to the mandated public involvement procedures required by CEQA and NEPA to solicit their views on the plans and participation in the process. Discussions required by this section arc intended to occur concurrent with ongoing Teview/consultation among Parties to this Agreement. 3.4 R.vi w and Approval of the NCCP Plard'-i�P and Environmental Documentation. 3.4.1 The Preliminary Draft NCCP PlanHCP and associated preliminary draft onvironmenfal documentation shall be prepared by a consultant selected by the Parties, consistent with CEQA and NEPA (40 C.F.R. § 1506.5) requirements. The Patties acknowle-dge that the Landowner will have a primary role in -11- Draft NCCP Agreement March 30, 1993 (Indicating Changes From 03122/93 Draftl 8306101 EOE i 04/0;/93 1;:13 '2 14 635 9000 _ 5 6 Y. A E � OC preparing the NCCP Plan/HCP. The Ctounty,and .USFWS, as co -lead agencies, shall independently review, analyze and supervise the preparation of the CEQA and NEPA documentation before circulating the Plan and environmental document far public review. It is the intent of sections 3.3.7, 3.4.1, 3.4.2, 3.4.3 and 3.4.4 to establish an efficiant ongoing process of consultation and coordination between the County, the Landowner, the CDFG and USFWS, and conservation representatives with regard to the preparation of the NCCP PlardHCP and assodated environmental documentation. 3.4.2 The consultant shall submit an outline for a Draft NCCP Plan/HCP to L.JSFWS and the County for review and comments prior to initiation of the CEQA and NEPA public review processes. As soon as possible after submission of such outline, the County and USFWS shall complete review of the outline and determine whether it is sufficiently detailed to justify commencement of the 'scoping' phase of the environmental review process pursuant to NEPA and CEQA. For the purposes of this section and section 3.4.3, the outline will be "sufficiently detailed fo justify commencement of the scoping phase' if the outline is adequate to serve as the project description for a Notice of Intent pursuant to 40 C.F.R. § 1508.22 and a Notice of Preparation pursuant to 14 C.C.R. § 15082. If the USFWS concludes that the outline Is sufficiently detailed to justify commencement of the 'scoping' phase of the environmental review process. then USFWS shall so advise the County in writing and the County, in cooperation with USFWS, will initiate the joint scoping phase of the environmental review process. USFWS shall publish a Notice of Intent, In accordance with the Department of the Interior NEPA regulations, as soon as possible after -- --advising the County that the outline is complete. The County shall circulate tate Notice of Preparation pursuant to 14 C.C.R. § 15082. 3.4.3 If USFWS determines that the outline for a Draft NCCP Pian/HCP is not sufficiently complete under the ESA to justify commencement of the 'scoping' phase of the environmental review process, USFWS shall provide the consultant with written comments and recommendations for changes necessary or appropriate under the ESA. The consultant will revise the outline consistent with USFWS comments, and, if requested by USFWS, submit a revised outline to USFWS. If a revised outline is submitted -to USFWS, the Parties shall repeat the process described in sections 3.4.2 and 3.4.3 until USFWS determines that the outline is sufficiently detailed to justify commencement of the `scoping" phase. Any comments on a revised outline shall address the provisions of the revised outline regarding issues identified in the initial USFWS comments. USFIAIS shall use their best efforts to raise all significant issues to be considered in the NCCP PlanMCP during the process in order to ensure that suoh issues can be efficiently addressed in the preparation of the Draft NCCP Plar HCP. Nothing in section 3.4.2 or 3.4.3, however, is intended to limit -12- Draft NCCP Agreement March 30, 1993 [Indicating Changes From 03/22/93 Draft] *roe�o,Exi 1. _i�'y A. JJJ NUUU _- �+ I. D. L Ul, Ll.: fills/U--- comments by the USFWS and CDFG on the NCCP Plan/HCP during the public review process. 3.4.4 The selected consultant shall develop a Preliminary Draft NCCP Plan/HCP and EIR/EIS ("Preliminary Draft"). The Preliminary Draft shall be circulated to all Parties for review. Comments on the Preliminary Draft shall be submitted to the consultant as soon as possible after the circulation of the Preliminary Draft. The Parties should focus comments on aspects of the Preliminary Draft affecting their property or jurisdiction. The C3unty, as CEQA Lead Agency, has the responsibility to independently review and approve the Preliminary Draft NCCP Plan and has the sole authority to determine the form and content of the Draft and Final NCCP Plan and EIR. 3.4.5 As soon as possible after review of the Preliminary Draft, USFWS shall.detemtine whether the document satisfies applicable NEPA requironients for circulation to the public as a Draft EIS. USFWS, as NEPA Lead Agency, has the responsibility to independently review and approve the EIS, and has sole authority for the content and scope of the EIS. If USFWS concludes that the Preliminary Draft is sufficiently complete to justify release pursuant to NEPA, then USFWS shall so advise the County in writing. USFWS shall publish notice of the availability of the Draft NCCP Plan/HCP/EIR/EIS in the Federal Registeras soon as possible after of advising the County that the Preliminary Draft is oompiete. Following receipt of USFWS approval, and publication in the Federal Register, the County and USFWS will circulate a Draft NCCP PlantHCP/EIR/EIS for a public review period of sixty (60) days, pursuant to CEQA and NEPA. 3.4.6 If USFWS determines that the Preliminary Draft is not sufficiently complete to justify circulation as a Draft EIS, USFWS shall provide the consultant with changes necessary or appropriate under NEPA. The consultant, in consultation with the Parties, shall revise the Preliminary Draft, and if requested by USFWS, submit a revised Preliminary Draft to USFWS for review pursuant to NEPA. If a revised Preliminary Draft is submitted to USFWS, the Parties shall repeat the prooees described in sections 3.4.5 and -3.4.6 until USFWS determines that the document meets NEPA requirements for circulation as a Draft EIS. Any comments on a revised Preliminary Draft shall address the provisions of the revised Preliminary Draft regarding Issues Identified in the initial USFWS comments. The USFWS shall use its best efforts to insure that the period for review and approval of the Preliminary Draft does no, exceed ninety (90) days from the submission of the initial Preliminary Draft to the USFWS. -13- Draft NCCP Agreement March 30, 1993 [Indicating Changes From 03/22/93 Draft] 9306101 EOc 1 0;%U;, 6< 1;:1: ;1: 635 HOUO_ \ is e E , UC �U1ti-U_ 3.4.7 following the,close of llte,public comment period pursuant to CEQA and NEPA, responses to public comments shall be prepared. As expeditiously as possible thereafter, the County shall finalize the EIR and adopt the NCCP Plan, 3.4.8 As expeditiously as possible after the preparation of responses to public comments, the USFWS shall publish a Notice of Availability of the Final EIS in the Federal Register. USFWS shall prepare a draft Record of Decision ('FIOD") pursuant to 40 C.F.R. 1505.2, and draft biological opinion ("BO") and shall submit the draft BO to the County for review and comment. The USFWS shall make a decision on the proposed action, and shall issue the Record of Decision as soon as practicable after the expiration of the thirty day waiting period following publication of the Notice of Availability in the Federal Register. 3.4.9 The Parties acknowledge that the EIR and EIS may be completed separately due to the various requirements of CEQA and NEPA. The County, as the CEQA Lead Agency, has the sole discretion and authority to adopt the NCCP Plan. The USFWS has sole authority to approve the NCCP Plan as an HCP or Advance HCP in accordance with section 10(a) of the ESA and its implementing regulations. 3.4.10 Concurrent with the approval of the NCCP Plan and the Final EIR and Final EIS, one or more of the Parties may enter into an Implementing Agreement with USFWS and CDFG, consistent with the Process Guidelines, specifying all terms and conditions of activities under the NCCP PIarVHCP and the rights and obligations of the Parties to the Implementing Agreement. The execution of the Implementing Agreement shall constituta the formal approval of the NCCP Plan by the Local Governments other than the County, and CDFG, and the execution of the Implementing Agreement shall constitute the legal commitment by Lrinduwner to the implementation of the NCCP Plan. Issuance of a section 10(a) permit incorporating an NCCP PlanhiCP, including an Implementing Agreement, shall constitute the formal approval by USFWS. If no Target Species has been listed by USFWS as an endangered species or threatened species, execution by USFWS of an Implementing Agreement shall constitute formai approval of an AHCP. The Implementing Agreement Will become effective as to any -party to the Implementing Agreement upon execution by ` ` ` AGRE` waf Cf]`!"``N 11111"1TI(1hI N1 OAf]T CCS the Landowner, CDFG, the USFWS and the COJnw T � The Parties recognize that regular monitoring activities will be indudt4d as part of the Implementing Agrearnant, and appropriate mechanisms to insure funding of the NCCP PlaafHCP will be includsd ae par of the Imp!emcntng Agreement The Implementing Agreement will be signed by those parties necpsswy to establish an effective HCP or AHCP. -14- Daft NCCP Agreeme it Varma 30, 1993 [Indicating Changes From 03/22/S3 Draft; Mot 101 E012-1 u:/Uii 90 17:15 `Ci14 6S5 9u00 _. 1 (+ h A L_UC, 3.4.11 In reviewing and approving the NCCP Plan/HCP, CDFG shall employ the SRP conservation principles concerning CSS conservation, habitat needs, species distribution and abundance. CDFG shall also review and approve the NCCP Plan in accordance with the purposes and requirements of the CESA, including the provisions of Fish and Game Coda section 2081. 3.4.12 In reviewing and approving the NCCP Plan/HCP, USFWS shall apply the provisions of section 10(a) of the ESA, and shall employ, consistent with section 3.2.2, the SRP conservation principles concerning CSS conservation, habitat needs. species distribution and abundance, and other biological considerations, and shall make findings with respect to whether the NCCP Plan/HCP meets the requirements for a habitat conservation plan pursuant to section 10(a) of the ESA. 4.0 EFFECT OF PLAN WITH RESPECT TO SPEOES LISTED OR PROPOSED FOR LISTING. Notwithstanding any outer provision in this MOA, this MOA is subject to and shall be caniod out in accordance with the ESA, the CESA, or any other applicable federal or state law or regulation. 4.1 Consideration of NCCP Plan in USFWS Denic_ions. In the absence of Unforeseen Circumstances as defined in section 2.20 and 4,10 of this Agreement, and provided an Implementing Agreement has been cxocuted to implement the NCCP Plan/HCP in the Coastal/Central Orange County Subregion, USFWS shall (i) consider the NCCP Plan/HCP in any future determinations by the USFWS with regard to the listing of one or more of the Target Species as an endangered species or threatened species, (i) consider that the satisfactory implementation of the NCCP Plan/HCP and Implementing Agreement will adequately provide for the conservation and protection of the Target Species and their habitats in the Plan area, and regard that the areas included in the approved NCCP Plan/HCP do not require further special management considerations or protection, and (iii) not prescribe any additional mitigation, enhancement or compensation measures pursuant to the ESA, or other certain statutes speoi ically addressed and provided for in the NCCP Plan/HCP, with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. 4.2 ustIn o� f Target Species betore the NCCP Plan Has Been Approved by USFWS. If one or more of the Tarcet Species is listed as an endangered species or threatened specie pursuant to the ESA before an NCCP PIan/HCP for the C.2astal/Central Ornoe Coucty Subregion is =proved by `.7e USFWS, the Landowner, one or more of the Local Govemmen's er TCA may seek authorization to take such -i5- Draft NCCP Agreement March 30, 1993 [Indicating Changes From 03/2J93 Draft) 9305101E.001 V V t. a i U� mow•- U4%Ui:9:ii:1C Y i14 6r HUOU_ - Target Species in the conduct of Planned Hte"ties in accordance with the ESA. A draft j NCCP PlanlHCP for the odt;taUCentral Orange County Subregion may be submitted as a proposed HCP for purposes of Section 10(a) of the ESA. 4.3 ESA Listing of Target Species After the NCCP Plan Has Been Approved bkUSFWS. In the event that one or more of the Target Species is listed as an endangered species or threatened species pursuant to the ESA atter the NCCP PIarVHCP for the CoaafavrPntretl Orange County Subregion, including an applicable Implementing Agreement, has been approved by USFWS, the NCCP Plan/HCP shall be adequate documentation to support an application for a Section 10(a) Permit to take such Target Species incidental to the Planned Activities, in the absence of Unforeseen Circumstances. In such event, any Party may submit an application for a Section 10(a) Permit, and the USFWS shall treat the approved NCCP PlarVHCP and associated Implementing Agreement as a Draft Habitat Conservation Plan for the Coastal/Central mange County Subregion which has been prepared in compliance with section 10(a�) of the ESA and, subject to 40 C.F.R. § 1502.9(c), shall treat the NCCP Plw-AiCP/EIR/EIS as a final EIS regarding the issuance of the Section 1 o(a) Permit as authorized by 40 C.F.R. § 1506.3(a). USFWS shall publish notice ('Application Notice') of the Section 1 o(a) Permit application in the Federal Register pursuant to 16 U.S.C. § 1539(d), as soon as possible after the publication of the final rule in the Federal Registerlisting the Target Species as an endangered species or threatened species. The USFWS shall, after public review and commont and a determination that all biological and procedural requirements have been met, issue a Section 10(a) Permit on the basis of the NCCP PlanMCP and Implementing Agreement authorizing incidental - takings of the listed species in accordance with the NCCP Plan/HCP as soon as possible after publication of the Applioation Notice in the Federal Register_ Unless the USFWS makes a determination that there are Unforeseen Circumstances as provided in section 2.20 and 4.10, in any Soction 7 Consultation with regard to the issuance of the Section 10(a) Permit the USFWS shall adopt the biological opinion Issued pursuant to section 3.4.8 with regard to the approval of the NCCP PIan/HCP and Implementing Agreement as the biological opinion issued pursuant to Section 7(b) o`. the ESA. in any Section 7 Consultation that may be required With regard to the Planned Activities, subsequent to the approval of the NCCP Pian/HCP and Implementing Agrecment, USFVJS intends to rely, to the greatest extent feasible, on the biologioal opinion issued with regard to tie approval of the NCCP Plan/HCP and Implementing Agreemen.. 4.4 Con i ��1Lof NCCP Plan in_ . isinns. in the absence of Unforeseen CircumgtancFs as defined in section 2.20 and 4.10 of this Agreement, and provided an ImPlementing Agreement has been executed to irnpicmcnt the NCCP Pian in the Coag, tele central Orange •g ntv Sul, egion, CDFG shall (1) consider the NCCP Plen in any suture determinations, Including but not limited to any -16. Draft NCCP Agreement 1J2rc", 30, 1983 [In6,sting Changes From 03/22J93 Draft] 04/07/93 17:16 'Z-714 Sas 9000 N-GE6 E , UC _ _ _ y_U1ii, u recommendations to the California Fish and Game Commission, with regard to the listing of one or more of the Target Species as a CESA Candidate Species, endangered species or threatened species pursuant to the CESA, (ii) consider that the satisfactory implementation of the NCCP Plan and Implementing Agreement will adequately provide for the conservation and protection of the Target Species and their habitats in the Pian Area, and regard that the areas included in the approved NCCP Plan do not require further special management considerations or protection, and (iii) not prescribe any additional mitigation, enhancement or compensation measures pursuant to CESA, or other certain statutes specifically addressed and provided for in the NCCP Plan, with regard to the Planned Activitias for the conservation or protection of the Target Species or their habitat 4.5 Listing of Target Species Before the NCCP Plan Has Been Approved by CDFG. If one or more of the Target Species is listed as a CESA Candidate Species, or as an endangered species or threatened species pursuant to the CESA before an NCCP Plan for the Coastal/Central Orange County Subregion has been approved by CDFG, the Landowner, one or more of the Local Governments or TCA may apply for a Section 2081 Permit to take such Target Species Incidental to Planned Activities or for an approval pursuant to Fish and Game Code section 2084 -("Section 2084 Approval") to take any such Target Species which are listed as a CESA Candidate Species. A draft NCCP Plan for the Coastal/Central Orange County Subregion may be submitted as a proposed habitat management eeeeew�plan for purposes of the Section 2081 Permit application or Section 2084 Approval application. 4.6 Listing of Target Species After the NCCP Plan Has Been Approved by CDFG. Pursuant to Fish and Game Code sections 2825(c), 2830 and 2835, if one or more of the Target Species is listed as a CESA Candidate Species or as an endangered species or threatened species pursuant to,the CESA after the NCCP Plan for the Coastal/Central Orange Coun Subregion and associated Implementing Agreement have been approved by CDFG, except where CDFG has made a determination that there are Unforeseen Circumstances as provided in section 2.20 and 4.10, the NCCP. Plan may be considered as a habitat management plan under the requirements of the CESA. The CDFG shall issue a Permit substantially in the form of the NCCP Pian to take the Target Species and its habitat within the Plan area pursuant to section 2081 cf the California Fish and Garde Code. The CDFG;shall rely on the NCCP Pian in making any recommendation to the aftomia Fish and Game Commiesion with regard to Fish ane Game Ccde section 2084. The CDFG shall consider that the satisfactory implementation of. an Implementing Agreement and the NCCP Pian will adequately provide for the conservation., protection, restoration, and enhancement of the Target Species and their habitats in the Plan area. 17- Draft NCCP Agreement March 30, 1993 [Indicating Changes From 03;22)93 Draft) saos�oiE.x� GG/Oi/SS li:li I: 8J5 SUUU 1 G L, 4.7 Future Permits. This section describes the intent of the Parties with respect to the effect of an approved NCCP PIarVHCP and Implementing Agreement on future permits described in sections 4.7.1 and 4.7.2. These commitments will be made as part of the trttplLamentin0 Agreement. 4.7.1 Except where CDFG or USFWS has determined the existence of Unforeseen Ciralrrtstances consistent with the provisions of section 2.20 and 4.10, CDFG or USFWS shall not prescribe, or request of any other agency. efty ether egeeey, any further mitigation, enhancement, or compensation measures pursuant to the ESA or CESA, or other certain statutes specifically addressed and provided for in the NCCP Plan/HCP with regard to the Planned Activities for the conservation or protection of the Target Species or their habitat. It Is not the intent of this section to limit Informal discussion or recommendations between the Parties with regard to the Implementation of the NCCP Plan/HCP. It is the intent of this section to assure that recommendations by USFWS and CDFG, in the context of public agency consideration of Planned Activities, conform to the mitigation, enhancement and compensation measures identified in an approved NCCP Plart/HCP and Implementing Agreement 4.72 The Parties to this Agreement acknowledge that the Local Governments and the Landowner may also be subject to permit requirements of agencies not parties to this Agreement, and to the permit requirements of Flch and Game Code sections 1601 and 1603. In the absence of Unforeseen Circumstances, participation in the NCCP PIwVHCP shall constitute the full extent of the Mitigation Measures required by USFWS pursuant to the ESA and CDFG pursuant to the CESA, and pursuant to other certain statutes spezifically addressed and provided for in the NCCP Plan/FiCP for the take of Target Species. or the modification of the habitat of the Target Species, related to the Planned Activities within the Coastal/Central Orange County Subregion. In addition, in the event that the NCCP Pla -10P and Implementing Agreement include commitments by the Local Governments and the Landowner to provide for the conservatlon or protection of biological resources other than the Target Species and their Habitat (e.g., wetland and riparian areas) the NCCP Plan/HCP and Implementing Agreement may include provisions for the Local Governments or Lanriowner to receive appropriate mitigation cradit for the particular biological resources addressoci in the NCCP Plan/HCP o ofistt any mitigation requirements that may be imposed by the CDFG or other aaencies to provide for the conservatian or protection of suoh other biological resources pursuant t^ any applicable law. 4.6 RIMIrA Fnyironment2i Da;umentaton. In issuing any permits or other approvals for any Target Species that is listed as an endangered species or threatened species under the ESA or CESA, or lisle- as a CESA Candidate Species -1s- Draft NCCP Apreemem March 30, i 992 [indicating Chsngas From 03/:2/93 Draft] G"+�27Ot E.O'.t ,;;iU7. A� 1F:1a �,+`-IJ LJS Nuou i__� pursuant to the CESA with regard to Planned Activities, absent Unforeseen Circumstances, and subject to any requirements of CEQA or N�:NA (including 40 C.F.R. § 1502.9(c)), USFWS and CDFG shall rely on and shall utilize the-EIR/EIS prepared in conjunction with the NCCP Plan/HCP as the CEQA and NEPA environmental document for such permits and approvals, The Local Governments shall rely on and shall utilize the EIR prepared in conjunction with the NCCP PlanIHCP in evaluating future planning decisions, and in issuing any permits or other approvals within the Coastal/Central Oranoe County Subregion with regard to the Planned Activities. The Parties understand and intend that the EIR/EIS prepared in conjunction with the NCCP Plan/HCP will operate as a "program' EIR and EIS pursuant to applicable provisions of the Council on Environmental Quality NEPA regulations (40 C.F.R. § 1500 et gag.), the CEQA Guidelines (14 G.C.R. § 15000 it=.) and the NCCP Act. Subsequent activities will be examined in light of the program EIR/EIS to determine if additional environmental documentation is required. 4,9 CSS Eperies. The NCCP Planning Guidelines indicate and the Parties agree that an NCCP PlwVHCP which provides effective consenralion measures for the Target Species should provide significant conservation for other CSS Species. USFWS and CDFG agree that they will consider the NCCP Plan/HCP in any future listing determinations with respect to CSS Species identified In the NCCP PlanMCP, and, in particular, shall consider the adequacy or inadequacy of the approved NCCP Plan/HCP and Implementing Agreement in protecting OSS Species to be 312m -existing Fegulatery nder 16 U.S.G. 1533(a)(1). 4.10 Identification of Unforeseen Circumstances. In order to establish Unforeseen Circumstances, as defined in section 220, USFWS or CDFG shall make a formal written determination that Unforeseen Circumstances have occurred, setting forth the basis for the determination. Upon making such a determination, USFWS or CDFG shall notify the Parties to this Agreement regarding the basis for any determination of Unforeseen Circumstances. 5.0 MI$QELLt i1EOUS PROVISIONS. 5.1 Reservation of Rights. Nothing in this Agreement shall be construed as a waiver of any rights or objections that any of the Parties may have with respect to the Propa^,ed Listing of any Target Species, or of any cojections to 11 it regu!ation of activities by CDFG which do not result in take of any, species listed pursuant to the CESA as a candidate, threatened or endangered species as the term "lake' is defined in California Fish and Game Code section 86. Landowner, Local Governments, and TCA reserve their right to oppose any formal listing or Proposed Listing of any Target Species pursuant to tric ESA or CESA. USFWS and CDFG reserve the right to proceed with the listin of any Target Species as an endangered -19- Draft NCCP Agreement March 30, 1993 [indicating Changes From 03/22/93 Draft] 920e1o1e.oc1 U:7 U�. UibJ ♦i .lc ...1+ OJJ bVU_ \ u O L �. �. .�. 'tom V� species or threatened species and to carry, Quk 01 af,their responsiblfities and duties under the ESA and CESA. ' 5.2 Notices. Any notices required or permitted to be given under this Agreement shall be in writing and may be given by personal delivery, facsimilc or by United States Postal Service first class mail, and shall be deemed sufficiently given if addressed to the following addresses for the respective Parties: Ms. Carol Whiteside The Resources AnAncy 1416 Ninth Street. Suite 1311 Sacramento, California 95814 Mr. Larry Eng —California Department of Fish and CismA 1416 Ninth Street Sacramonto. California 95814 Kobetch U.S Fish and Wildlife Service Office of Endangered Species 1•Cottage ,• Sacramento. California Mr. • Matthews County of Orange Environmental Mnn;iQAMpnt A an -MI L' �••tr Mr. Steve Letterly Transportation Corridor Agendes 345 Clinton Street - Costa Masa California 92626 Ms. Monlcc Florian The Irvine Company 550 NewRort Center Drive Newr,ort Beach. California 92.660 .2D- Draft NCCP Agreement March 30, 1993 [Indicating Changes From 03122/93 Draft) 9309101 E.O.^.1 04, 07, 93 1; :1a Z714 835 9000 S G E a E , UC _ _ i� 0=3'0:; -21- Draft NCCP Agreement March 30, 1993 [Indicating Changes From 03/22/93 Draft) 8378101 E.001 04/07,9J 17:20 'L�714 505 9000 IN C E e E . 0�r _ UL., U.7 5.3 Headings. The subject headings of the sections of this Agreement are provided for convenience only and shall not effect the construction or interpretation of arty of the provisions of the Agreement 5.4 Entire Agreement. This Agreement constitutes the full and — complete agreement of .the Parties and supersedes any and all prior or contemporaneous written or oral negotiations, correspondence, understandings and agreements between the Parties respecting the subject matter hereof. Any supplement, modification or amendment to this Agreement shall be executed in writing by all Parties. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provisions. No waiver shall be binding unless executed in writing by the Party maldng the waiver. 5.5 Assignment. This Agreement is intended to apply to the Parties and their respective successor; and assigns. 5.6 Counterparts. This Agreement may be executed in multiple counterparts and each such executed counterpart shall be deemed an original, all of which together shall constitute a single executed Agreement. .22 - Draft NCCP Agreement March 30, 1993 [Indicating Changes From 03.22/93 Draft] 9308101 E.001 ,4/07;93 li_::U ' 7_11 635 9Uuu IN WITNESS WHEREOF, the Parties have executed this Memorandum of Agreement elfective as of the last date set forth below. Dated: , 1993 CALIFORNIA RESOURCES AGENCY, an agency of the State of California BY Dated: 1993 CALIFORNIA DEPARTMENT OF FISH AND GAME, a department of The Resources Agency of the State of Califomia -23- Draft NCCP Agreement March 30, 1993 jlndcating Change: From 03/22/93 Draft] 93081 O7 ECC1 Dated: 1993 UNITED STATES FISH AND WILDLIFE SERVICE, do agency of the Department of Interior of the United States of America Ry Title Dated: . 1993 COUNTY OF ORANGE, a political subdivision of the State of California BY Title Dated: 1993 TRANSPORTATION CORRIDOR AGENCIES, a joint powers authority B Title Dated: - .1993 By Title Dated: .1993 By Title Dated: ,1993 By_ Title _ Dated 1993 _ By Title Dated: .1993 -24- Draft NCCP Aareement March 30, 1993 jlndicating Changes From 03/22/93 Draft] ==101 E.00t U1/O-, SJ l,:YI 'a�711 0:,6 VUUU e 1. a L 1` � -,-, U" By Title Dated' .1993 Title Dated' 1993 Dated 1993 Title Dated: 1993 Dated: 1993 25 - Draft NCCP Agreement March 30, 1993 [indicating Changes From 03/22/93 Draft] S3=01EOc7 LEG: N0,6 z_ ATTACHMENT B CiF L -. , Ti35C1F 1 H.• C� F= -I' 1 F. 7 - �2,13, LEG: N0,6 z_ ATTACHMENT B