2007 CVMSHCP Implementing Agreement - NOT SIGNEDIMPLEMENTING AGREEMENT
for the
COACHELLA VALLEY
MULTIPLE SPECIES HABITAT CONSERVATION PLAN/
NATURAL COMMUNITY CONSERVATION PLAN
by and between
COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS, COACHELLA
VALLEY CONSERVATION COMMISSION, COUNTY OF RIVERSIDE,
RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION
DISTRICT, RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT
DISTRICT, RIVERSIDE COUNTY REGIONAL PARKS AND OPEN SPACE
DISTRICT, CITY OF CATHEDRAL CITY, CITY OF COACHELLA, CITY OF
DESERT HOT SPRINGS, CITY OF INDIAN WELLS, CITY OF INDIO, CITY
OF LA QUINTA, CITY OF PALM DESERT, CITY OF PALM SPRINGS, CITY
OF RANCHO MIRAGE, COACHELLA VALLEY WATER DISTRICT,
IMPERIAL IRRIGATION DISTRICT, MISSION SPRINGS WATER DISTRICT,
COACHELLA VALLEY MOUNTAINS CONSERVANCY, CALIFORNIA
DEPARTMENT OF FISH AND WILDLIFE, CALIFORNIA DEPARTMENT OF
TRANSPORTATION, CALIFORNIA DEPARTMENT OF PARKS AND
RECREATION, AND UNITED STATES FISH AND WILDLIFE SERVICE
TABLE OF CONTENTS
Page(s)
1 PARTIES 1
2 DEFINED TERMS 1
2.1 Acceptable Biologist 1
2.2 Acquisition and Funding Coordinating Committee 1
2.3 Adaptive Management 1
2.4 Additional Conservation Lands 1
2.5 Allowable Uses 1
2.6 Annual Report(s) 1
2.7 Area Plan 2
2.8 Biological Corridor 2
2.9 California Department of Fish and Wildlife ("CDFG") 2
2.10 California Department of Parks and Recreation ("State Parks") 2
2.11 California Department of Transportation ("Caltrans") 2
2.12 California Endangered Species Act ("CESA") 2
2.13 California Environmental Quality Act ("CEQA") 2
2.14 Candidate Species 2
2.15 Certificate of Inclusion 2
2.16 Changed Circumstances 2
2.17 Cities 2
2.18 Coachella Valley Association of Governments ("CVAG") 2
2.19 Coachella Valley Conservation Commission ("CVCC") 3
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2.20 Coachella Valley Fringe -toed Lizard Habitat Conservation
Plan ("CVFTL HCP") 3
2.21 Coachella Valley Mountains Conservancy ("CVMC") 3
2.22 Complementary Conservation 3
2.23 Conservation 3
2.24 Conservation Areas 3
2.25 Conservation Goal(s) 3
2.26 Conservation Level 3
2.27 Conservation Objective(s) 3
2.28 Conservation Strategy 3
2.29 Conserved Habitat 3
2.30 Core Habitat 4
2.31 County 4
2.32 County Flood Control 4
2.33 County Parks 4
2.34 County Waste 4
2.35 Covered Activities 4
2.36 Covered Species 4
2.37 Critical Habitat 4
2.38 Development 4
2.39 Discretionary Project 4
2.40 Effective Date 4
2.41 Emergency 4
2.42 Endangered Species 5
2.43 Essential Ecological Processes 5
2.44 Essential Habitat 5
2.45 Existing Conservation Lands 5
2.46 Existing Uses 5
2.47 Feasible 5
2.48 Federal Endangered Species Act ("FESA") 5
2.49 Habitat 5
2.50 HabiTrak 5
2.51 Implementing Agreement ("IA") 5
2.52 Independent Science Advisors ("ISA") 5
2.53 Joint Project Review Process 5
2.54 Land Manager 5
2.55 Land Use Adjacency Guidelines 6
2.56 Legal Instrument 6
2.57 Linkage 6
2.58 Listed Species 6
2.59 Local Development Mitigation Fee 6
2.60 Local Permittees 6
2.61 Major Amendments 6
2.62 Management Program 6
2.63 Migratory Bird Treaty Act ("MBTA") 6
2.64 Migratory Bird Treaty Act ("MBTA") Special Purpose
Purpose Permit 6
2.65 Minor Amendments 6
2.66 Mitigation Lands 6
2.67 Monitoring Program 7
2.68 Monitoring Program Administrator ("MPA") 7
2.69 Monitoring Report(s) 7
2.70 MSHCP 7
2.71 MSHCP Reserve System 7
2.72 NCCP Act 7
2.73 NCCP Permit 7
2.74 NEPA 7
2.75 Non -Listed Species 7
2.76 No Surprises Assurances 7
2.77 Operation and Maintenance Activities ("O&M") 7
2.78 Other Conserved Habitat 7
2.79 Participating Special Entity 8
2.80 Party and Parties 8
2.81 Permit(s) 8
2.82 Permittees 8
2.83 Plan 8
2.84 Plan Area 8
2.85 Planning Agreement 8
2.86 Plan Participants 8
2.87 Private Conservation Land 8
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2.88 Reserve Lands 8
2.89 Reserve Management Oversight Committee ("RMOC") 8
2.90 Reserve Management Unit ("RMU") 8
2.91 Reserve Management Unit Plan ("RMUP") 9
2.92 Reserve System 9
2.93 Reserve System Assembly 9
2.94 Rough Step 9
2.95 Rough Step Analysis Unit 9
2.96 Scientific Advisory Committee ("SAC") 9
2.97 Section 10(a) Permit 9
2.98 Special Provisions Area 9
2.99 Species Conservation Goal(s) 9
2.100 State Assurances 9
2.101 State Permittees 9
2.102 Take 9
2.103 Take Authorization 9
2.104 Third Party Take Authorization 9
2.105 Threatened Species 10
2.106 Unforeseen Circumstances 10
2.107 United States Fish and Wildlife Service ("USFWS") 10
2.108 Wildlife Agencies 10
3 RECITALS 10
4 PURPOSES 12
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5 INCORPORATION OF THE MSHCP 13
6 CONSERVATION STRATEGY 13
7 MSHCP RESERVE SYSTEM ASSEMBLY 14
7.1 Overview 14
7.2 Contribution of Existing Conservation Lands 14
7.3 Complementary Conservation 15
7.4 Contribution of Additional Conservation Lands 15
7.5 Review of Development Proposals in Conservation Areas 15
7.6 Reserve Assembly Accounting 15
8 MSHCP RESERVE SYSTEM MANAGEMENT REQUIREMENTS 16
8.1 Overview 16
8.2 Management Activities 16
8.3 Management Program 16
9.0 MSHCP RESERVE SYSTEM MONITORING REQUIREMENTS 16
9.1 Monitoring Program 16
9.2 Monitoring Program Administrator 16
9.3 Monitoring Reporting Requirements 16
10 REPORTING REQUIREMENTS 16
10.1 Annual Reporting 16
10.2 Certificate of Reports 17
11 MSHCP IMPLEMENTATION STRUCTURE 18
11.1 Permittee Implementation Mechanisms 18
11.1.1 The Cities 18
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11.1.2 The County 19
11.1.3 County Flood Control 19
11.1.4 County Parks 19
11.1.5 County Waste 19
11.1.6 CVCC 19
11.1.7 CVAG 19
11.1.8 CVMC 19
11.1.9 Caltrans 20
11.1.10 State Parks 20
11.1.11 CVWD 20
11.1.12 IID 20
11.1.13 MSWD 24
11.2 Organizational Structure 20
11.2.1 Overview 20
11.2.2 CVCC Organization 20
A. Overview 20
B. Duties and Responsibilities 20
11.2.3 Acquisition and Funding Coordinating Committee 20
11.2.4 Joint Project Review Process 21
11.2.5 CVCC Executive Director 21
A. Selection 21
B. Duties and Responsibilities 21
11.2.6 Reserve Management Oversight Committee 21
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A. Formation and Representation. 21
B. Duties and Responsibilities 21
11.2.7 Reserve Management Unit Committees 22
11.2.8 Land Manager 22
11.2.9 Monitoring Program Administrator 22
11.2.10 MSHCP Reserve Management Unit Plan 22
11.3 Changed Circumstances 22
11.3.1 General Terms 22
11.3.2 Permittees-Initiated Response to Changed Circumstances 23
11.3.3 Wildlife Agency-Initiated Response to Changed
Circumstances 23
11.3.4 Condemnation of Lands Providing Conservation Benefits 23
11.3.5 New Listings of Species Not Covered by the MSHCP 23
11.4 Annexation and Deannexation of Lands 24
11.5 Incorporation of New Cities within MSHCP Boundaries 24
11.6 Growth-Inducing Effects 25
11.7 Participating Special Entity 25
11.7.1 Take Authorization for Participating Special Entities 25
11.7.2 Grant of Take Authorization to Participating Special Entity 25
11.7.3 Requirements for Participating Special Entities 26
12 FUNDING OF THE MSHCP 26
12.1 Local Obligations 26
12.1.1 Local Permittee Additional Conservation Lands Obligations 26
12.1.2 Administration Costs 27
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12.1.3 Local Permittee Monitoring and Management Obligations 27
12.2 Local Funding Sources 27
12.2.1 Local Development Mitigation Fees 27
12.2.2 Transportation and Other Regional Infrastructure Project
Contributions 27
12.2.3 Landfill Tipping Fees 28
12.2.4 Eagle Mountain Landfill Environmental Mitigation Trust
Fund. 28
12.2.5 Additional Funding 28
12.3 Annual Evaluation of Funding 28
13 PERMITTEES' TAKE AUTHORIZATION AND OBLIGATIONS 28
13.1 Permittees' Take Authorization 28
13.2 County and Cities Obligations 28
13.3 CVCC Obligations 30
13.4 CVAG Obligations 31
13.5 County Flood Control Obligations 31
13.6 County Parks Obligations 32
13.7 County Waste Obligations 33
13.8 CVWD Obligations 33
13.9 IID Obligations 34
13.10 Caltrans Obligations 35
13.11 State Parks Obligations 36
13.12 CVMC Obligations 36
13.13 MSWD Obligations 42
14 USFWS OBLIGATIONS AND ASSURANCES 37
14.1 Take Authorization for Covered Activities 37
14.2 USFWS Findings - Covered Species 37
14.3 Section 10(a) Permit Coverage 37
14.4 Implementation Assistance 37
14.5 Assurances Regarding MSHCP 38
14.6 Take Authorization for Newly Regulated Covered Species; Savings
Provision 38
14.7 Changes in the Environmental Laws 38
14.8 Section 7 Consultations 38
14.9 Critical Habitat Designation for Covered Species 39
14.10 Future Recovery Plans 39
14.11 No Surprises Assurances and Unforeseen Circumstances 40
14.11.1 No Surprises Assurances 40
14.12 Migratory Bird Treaty Act 41
14.13 Management of Land 41
15 CDFG OBLIGATIONS AND ASSURANCES 42
15.1 Issuance of NCCP Permit. 42
15.2 NCCP Permit Findings 42
15.3 State Assurances. 42
15.4 Implementation Assistance. 43
15.5 Fully Protected Species 43
15.6 Changes in the Environmental Laws 43
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15.7 Consultations by CDFG 43
15.8 Management of Land 44
16 RELATIONSHIP TO OTHER EXISTING HABITAT CONSERVATION
PLANS, NCCP PERMITS AND SECTION 2081 PERMITS 44
16.1 General. 44
16.2 Coachella Valley Fringe -Toed Lizard Take Authorization. 44
17 THIRD PARTY TAKE AUTHORIZATION 44
17.1 Authorization. 44
17.2 Timing of Take Authorization. 45
17.3 Effect of MSHCP Amendments on Third Parties. 45
17.4 Effect of Revocation or Suspension of Permits on Third Parties. 45
17.5 Effect of No Surprises Assurances on Third Parties 46
17.6 Retention of Enforcement Authority Over Third Parties 46
18 COOPERATIVE EFFORT 46
19 TERM 46
19.1 Effective Date. 46
19.2 Term of the Agreement. 46
19.3 Term of the Permits. 46
19.4 Extension of the Permit 47
19.5 Permanent Preservation. 47
20 MODIFICATIONS AND AMENDMENTS TO THE MSHCP 47
20.1 Clerical Changes. 47
20.2 Land Use Changes. 47
20.3 Adaptive Management Changes. 47
20.4 Minor Amendments. 47
20.4.1 List of Minor Amendments 48
20.4.2 Minor Amendments not Requiring Wildlife Agencies
Concurrence. 48
20.4.3 Minor Amendments Requiring Wildlife Agencies
Concurrence.. 49
20.4.4 Procedure. 49
20.5 Major Amendments. 50
20.5.1 List of Major Amendments 50
20.5.2 Procedure 50
20.6 Like Exchanges in Conservation Areas 51
21 TERMINATION OF PERMITS 51
21.1 Termination in General. 51
21.2 Continuing Obligations. 51
21.3 Final Accounting 51
21.4 Dissolution of the CVCC. 52
22 WITHDRAWAL OF PERMITTEE(S) 52
22.1 Withdrawal in General. 52
22.2 Mitigation Responsibilities. 52
22.3 Termination of Permittee Take Authorization. 52
22.4 Evaluation of Remaining Permits. 52
23 REMEDIES AND ENFORCEMENT 53
23.1 Remedies in General. 53
23.1.1 No Monetary Damages. 53
23.2 Default 53
23.2.1 Notice and Opportunity to Cure Default 53
23.3 Injunctive and Temporary Relief. 54
23.4 Limitation and Extent of Enforceability. 54
23.5 Revocation or Suspension of the Permits. 54
23.6 Informal Meet and Confer Process for Disputes Concerning Covered
Activities, State Streambed Alteration Agreements, Federal 404
Permits, and ESA Section 7 Consistency Consultation 55
23.7 Continuation Of Take Authorization after Revocation, Suspension or
Permittee Withdrawal 56
24 FORCE MAJEURE 56
25 LEGAL AUTHORITY OF THE USFWS 57
26 LEGAL AUTHORITY OF THE CDFG 57
27 MISCELLANEOUS PROVISIONS 57
27.1 Response Times. 57
27.2 No Partnership. 57
27.3 Nullification of Agreement. 57
27.4 Notices. 57
27.5 Entire Agreement. 63
27.6 Assignment or Transfer 64
27.7 Defense. 64
27.8 Attorneys' Fees 64
27.9 Elected Officials Not to Benefit 64
27.10 Availability of Funds. 64
27.11 Governing Law. 65
27.12 Duplicate Originals. 65
27.13 Relationship to the FESA, CESA, NCCP Act and Other Authorities. 65
27.14 No Third Party Beneficiaries. 65
27.15 References to Regulations 65
27.16 Applicable Laws. 65
27.17 Severability 65
27.18 Headings 65
27.19 Due Authorization 66
27.20 Faxed Signatures. 66
27.21 Calculation of Dates and Dates of Performance. 66
27.22 Further Instruments. 66
1. PARTIES
This Implementing Agreement ("Agreement"), made and entered into as of this day of
2007, by and among the Coachella Valley Association of Governments,
Coachella Valley Conservation Commission, County of Riverside, Riverside County Flood
Control and Water Conservation District, Riverside County Regional Parks and Open Space
District, Riverside County Waste Resources Management District, City of Cathedral City, City of
Coachella, City of Desert Hot Springs, City of Indian Wells, City of Indio, City of La Quinta, City
of Palm Desert, City of Palm Springs, City of Rancho Mirage, Coachella Valley Water District,
Imperial Irrigation District, Mission Springs Water District, Coachella Valley Mountains
Conservancy, California Department of Transportation, California Department of Parks and
Recreation (together with their successors and assigns collectively, the "Permittees"), California
Department of Fish and Wildlife and United States Fish and Wildlife Service (collectively, the
"Parties"), defines the Parties' roles and responsibilities and provides a common understanding of
the actions that will be undertaken to implement the Coachella Valley Multiple Species Habitat
Conservation Plan/Natural Community Conservation Plan ("MSHCP" or "Plan"). The United
States Fish and Wildlife Service and the California Department of Fish and Wildlife may be
referred to collectively herein as the "Wildlife Agencies."
2. DEFINED TERMS
Terms used in this Agreement and specifically defined in the Federal Endangered Species
Act, California Endangered Species Act, the California Natural Community Conservation
Planning Act or the MSHCP shall have the same meaning when utilized in this Agreement, unless
this Agreement expressly provides otherwise.
The following terms used in this Agreement shall have the meanings set forth below:
2.1 "Acceptable Biologist" means a biologist whose
name is on a list maintained by CVCC of biologists who are
acceptable to CVCC, CDFG, and USFWS for purposes of
conducting surveys of Covered Species.
2.2 "Acquisition and Funding Coordinating
Committee" means a committee formed by the CVCC that provides
input on local funding priorities and Additional Conservation Land
acquisitions.
2.3 "Adaptive Management" means to use the results of
new information gathered through the monitoring program of the
Plan and from other sources to adjust management strategies and
practices to assist in providing for the Conservation of Covered
Species.
2.4 "Additional Conservation Lands" means Conserved
Habitat that will contribute to Reserve System Assembly as
described in Section 4.2.2 of the MSHCP.
1
2.5 "Allowable Uses" means uses allowed within the
MSHCP Reserve System, as defined in Section 7.3.2 of the
MSHCP.
2.6 "Annual Report(s)" means the report(s) prepared
pursuant to the requirements of Section 6.4 of the MSHCP.
2.7 "Area Plan" means a community planning area
defined in the County of Riverside General Plan. Four County of
Riverside Area Plans are located within the MSHCP Plan Area.
2.8 "Biological Corridor" means the wildlife movement
area that is constrained by existing development, freeways, or other
impediments. [See also "Linkage"]
2.9 "California Department of Fish and Wildlife
("CDFG") means a department of the California Resources
Agency.
2.10 "California Department of Parks and Recreation
("State Parks")" means a department of the California Resource
Agency.
2.11 "California Department of Transportation
("Caltrans")" means a department of the California Business,
Transportation, and Housing Agency.
2.12 "California Endangered Species Act ("CESA")
means California Fish and Game Code, Section 2050 et seq. and all
rules, regulations and guidelines promulgated there under, as
amended.
2.13 "California Environmental Quality Act ("CEQA")"
means the California Public Resources Code, Section 21000 et seq.
and all guidelines promulgated there under, as amended. For the
MSHCP, CVAG shall be the Lead Agency under CEQA, as defined
under state CEQA Guidelines Section 15367.
2.14 "Candidate Species" means both (1) a species
formally noticed by the California Fish and Game Commission as
under review for listing as threatened or endangered, or a species
for which the Fish and Game Commission has published a notice
of proposed regulation to add a species as threatened or
endangered, and (2) a species which the USFWS has identified as
being a candidate for listing, but for which development of a listing
regulation is precluded by other higher priority listing activities.
2.15 "Certificate of Inclusion" means the document
attached as Exhibit "H" to this Agreement that would be required
to be executed prior to a Participating Special Entity receiving Take
Authorization pursuant to Section 11.7 of this Agreement or for
other Covered Activities, as appropriate.
2.16 "Changed Circumstances" means changes in
circumstances affecting a Covered Species or geographic area
covered by the MSHCP that can reasonably be anticipated by the
Parties and that can reasonably be planned for in the MSHCP.
Changed Circumstances and the planned responses to those
circumstances are more particularly described in Section 6.8.3 of
the MSHCP. Changed Circumstances do not include Unforeseen
Circumstances.
2.17 "Cities" means the cities of Cathedral City,
Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta,
Palm Desert, Palm Springs and Rancho Mirage, collectively.
2.18 "Coachella Valley Association of Governments
("CVAG")" means a joint powers authority that functioned as Lead
Agency for the preparation of the MSHCP.
2.19 "Coachella Valley Conservation Commission
("CVCC")" means a joint powers authority formed by the Local
Permittees to provide primary policy direction for implementation
of the MSHCP, as set forth in Section 6.1.1 of the MSHCP, and
Section 11.2.2 of this Agreement.
2.20 "Coachella Valley Fringe -toed Lizard Habitat
Conservation Plan ("CVFTL HCP")" means the CVFTL HCP in
the Plan area, dated April 21, 1986, more particularly described in
Section 16.2 of this Agreement.
2.21 "Coachella Valley Mountains Conservancy
("CVIVIC")" means a state agency within the California Resources
Agency.
2.22 "Complementary Conservation" means the land
projected to be acquired in the Conservation Areas for
Conservation purposes independent of, but compatible with, the
MSHCP as described in Section 4.2.1 of the MSHCP.
2.23 "Conservation" means to use, and the use of,
methods and procedures within the MSHCP Reserve System and
within the Plan Area as set forth in the MSHCP Plan, that are
necessary to bring any species to the point at which the measures
provided pursuant to FESA and the California Fish and Game Code
are no longer necessary. However, Permittees will have no duty to
enhance, restore, or revegetate MSHCP Reserve System lands
unless required by the MSHCP, this Agreement, or agreed to
through implementation of the Plan.
2.24 "Conservation Areas" means a system of lands
described in Section 4.3 of the MSHCP that provides Core Habitat
and Other Conserved Habitat for the Covered Species, conserves
natural communities, conserves Essential Ecological Processes,
and secures Biological Corridors and Linkages between major
Habitat areas. There are 21 Conservation Areas from which the
MSHCP Reserve System will be assembled.
2.25 "Conservation Goal(s)" means a broad statement of
intent that describes how the Plan will accomplish the protection of
Core Habitat, Essential Ecological Processes, Biological Corridors,
and Linkages in the MSHCP Reserve System to ensure that the
Covered Species are adequately conserved. Conservation Goals are
also designed to ensure the persistence of natural communities.
2.26 "Conservation Level" means a numerical
designation, as described in Section 2.4 of the MSHCP, assigned to
all land within the Plan Area.
2.27 "Conservation Objective(s)" means measurable
statements of actions or measures that will lead to attainment of the
Conservation Goals.
2.28 "Conservation Strategy" means the overall
approach to assure Conservation of Covered Species within the
Plan Area.
2.29 "Conserved Habitat" means land that is permanently
protected and managed for the benefit of the Covered Species under
the institutional arrangements that provide for its ongoing
management, and under the legal arrangements that prevent its
conversion to other uses.
2.30 "Core Habitat" means the areas identified in the
Plan for a given species that are composed of a Habitat patch or
aggregation of Habitat patches that (1) are of sufficient size to
support a self-sustaining population of that species, (2) are not
fragmented in a way to cause separation into isolated populations,
(3) have functional Essential Ecological Processes, and (4) have
effective Biological Corridors and/or Linkages to other Habitats,
where feasible, to allow gene flow among populations and to
promote movement of large predators.
2.31 "County" means the County of Riverside.
2.32 "County Flood Control" means the Riverside
County Flood Control and Water Conservation District.
2.33 "County Parks" means the Riverside County
Regional Parks and Open Space District.
2.34 "County Waste" means the Riverside County Waste
Resources Management District.
2.35 "Covered Activities" means certain activities
carried out or conducted by Permittees, Participating Special
Entities, Third Parties Granted Take Authorization and others
within the MSHCP Plan Area, as described in Section 7 of the
MSHCP, that will receive Take Authorization under the Section
10(a) Permit and the NCCP Permit, provided these activities are
otherwise lawful.
2.36 "Covered Species" means the species for which
Take Authorization is provided through the Permits issued in
conjunction with this Agreement. These species are discussed in
Section 9 of the MSHCP, and listed in Exhibit "C" to this
Agreement.
2.37 "Critical Habitat" means Habitat for species listed
under FESA that has been designated pursuant to Section 4 of
FESA and identified in 50 C.F.R., Sections 17.95 and 17.96.
2.38 "Development" means the uses to which land shall
be put, including construction of buildings, structures,
infrastructure and all associated alterations of the land.
2.39 "Discretionary Project" means a proposed project
requiring discretionary action by a Permittee, as that term is used
in CEQA and defined in state CEQA Guidelines Section 15357,
including issuance of a grading permit for County projects.
2.40 "Effective Date" means the date on which this
Agreement takes effect, as set forth in Section 19.1 of this
Agreement.
2.41 "Emergency" means a sudden, unexpected
occurrence, involving a clear and imminent danger, demanding
immediate action to prevent or mitigate the loss of, or damage to,
life, health, property, or essential public services. Emergency
includes such occurrences as fire, flood, earthquake, or other soils
or geologic movements, as well as such occurrences as riot,
accident, or sabotage.
2.42 "Endangered Species" means those species listed as
endangered under FESA and/or CESA.
2.43 "Essential Ecological Processes" means processes
that maintain specific Habitat types and are necessary to sustain the
Habitat (in a state usable by Covered Species). Essential
Ecological Processes may include abiotic hydrological processes
(both subsurface and surface), erosion, deposition, blowsand
movement, substrate development and soil formation, disturbance
regimes such as flooding and fire, and biotic processes such as
reproduction, pollination, dispersal, and migration.
2.44 "Essential Habitat" means certain lands delineated
in the Recovery Plan for Bighorn Sheep in the Peninsular Ranges,
California (USFWS 2000).
2.45 "Existing Conservation Lands" means a subset of
the MSHCP Reserve System lands consisting of lands in public or
private ownership and managed for Conservation and/or open
space values that contribute to the Conservation of Covered
Species, as generally depicted in Figure 4-2 of the MSHCP.
2.46 "Existing Uses" means an existing use, public or
private, which is the primary use on the property.
2.47 "Feasible" means capable of being accomplished in
a successful manner within a reasonable period of time, taking into
account economic, environmental, legal, social, and technological
factors.
2.48 "Federal Endangered Species Act ("FESA")"
means 16 U.S.C., Section 1531 et seq. and all rules and regulations
promulgated there under, as amended.
2.49 "Habitat" means the combination of environmental
conditions of a specific place providing for the needs of a species
or a population of such species.
2.50 "HabiTrak" means a GIS application to provide data
on Habitat loss and Conservation, which occurs under the Permits.
2.51 "Implementing Agreement ("IA")" means the
executed agreement that implements the terms and conditions of
the MSHCP.
2.52 "Independent Science Advisors ("ISA")" means the
qualified biologists, Conservation experts and others that provide
scientific input to assist in the planning and implementation of the
MSHCP for the benefit of the Covered Species, as set forth in
Section 3.1.2 of the MSHCP.
2.53 "Joint Project Review Process" means the review
process described in Section 6.6.1.1 of the MSHCP for
Development proposed in Conservation Areas.
2.54 "Land Manager" means the entity, or entities, which
has the responsibility to manage land acquired by the Permittees as
set forth in Section 6.1.5 of the MSHCP.
2.55 "Land Use Adjacency Guidelines" means standards
delineated in Section 4.5 of the MSHCP for land uses adjacent to
or within Conservation Areas that are necessary to avoid or
minimize edge effects. "Adjacent" means that a parcel shares a
common boundary with a parcel in a Conservation Area.
2.56 "Legal Instrument" as used within the Plan and/or
IA, shall refer to recorded legal instruments acceptable to the
Wildlife Agencies, which provides legal protection in perpetuity to
conservation lands; this legal protection may consist of a
conservation easement consistent with California Civil Code
Section 815 et seq. or a perpetual deed restriction that meets the
requirements of a conservation easement under this statute.
2.57 "Linkage" means Habitat that provides for the
occupancy of Covered Species and their movement between larger
blocks of Habitat over time, potentially over a period of
generations. In general, Linkages are large enough to include
adequate Habitat to support small populations of the species and,
thus, do not require that an individual of the species transit the
entire Linkage to maintain gene flow between populations. What
functions as a Linkage for one species may provide only a
Biological Corridor or no value for other species. [See also
"Biological Corridor."]
2.58 "Listed Species" means a species that is listed under
FESA and/or CESA.
2.59 "Local Development Mitigation Fee" means the fee
imposed by applicable Local Permittees on new Development
pursuant to Government Code, Sections 66000 et seq.
2.60 "Local Permittees" means CVAG, CVCC, County,
County Flood Control, County Parks, County Waste, CVWD, IID,
MSWD, and the Cities.
2.61 "Major Amendments" means those proposed
amendments to the MSHCP and this Agreement, as described in
Section 20.5 of this Agreement and Section 6.12.4 of the MSHCP.
2.62 "Management Program" means the MSHCP
management actions, as described in Section 8 of the MSHCP.
2.63 "Migratory Bird Treaty Act ("MBTA")" means 50
C.F.R., Section 21 et seq. and all rules and regulations promulgated
there under, as amended.
2.64 "Migratory Bird Treaty Act ("MBTA") Special
Purpose Permit" means a permit issued by the USFWS under 50
Code of Federal Regulations, section 21.27, authorizing Take, in
connection with Covered Activities, under the MBTA of the
Covered Species listed in 50 Code of Federal Regulations Section
10.13 that are also listed as endangered or threatened under FESA.
2.65 "Minor Amendments" means minor changes to the
MSHCP and this Agreement, as defined in Section 20.4 of this
Agreement and Section 6.12.3 of the MSHCP.
2.66 "Mitigation Lands" means a subset of Additional
Conservation Lands as described in Section and 4.2.2 of the
MSHCP.
2.67 "Monitoring Program" means the monitoring
programs and activities set forth in Section 8 of the MSHCP.
2.68 "Monitoring Program Administrator ("MPA")"
means the individual or entity responsible for administering the
monitoring program, as described in Section 6.1.6 of the MSHCP.
2.69 "Monitoring Report(s)" means the report(s)
prepared pursuant to the requirements of Section 8.7 of the
MSHCP.
2.70 "MSHCP" means a synonym for Plan, used in the
text where needed for clarity.
2.71 "MSHCP Reserve System" means a reserve that
will total approximately 745,900 acres. The MSHCP Reserve
System will provide for the Conservation of the Covered Species.
2.72 "NCCP Act" means the California Natural
Community Conservation Planning Act of 2002 (California Fish
and Game Code § 2800 et seq.), including all regulations
promulgated thereunder, as amended.
2.73 "NCCP Permit" means the Permit issued under the
NCCP Act for the MSHCP to permit the Take of identified species
listed under CESA as threatened or endangered, a species that is a
candidate for listing, and Non -listed Species.
2.74 "NEPA" means the National Environmental Policy
Act (42 U.S.C., Section 4321 - 4335) and all rules and regulations
promulgated thereunder, as amended. For the purposes of the
MSHCP, USFWS is the Lead Agency under NEPA, as defined in
40 C.F.R., Section 1508.16.
2.75 "Non -Listed Species" means a species that is not
listed under FESA and/or CESA.
2.76 "No Surprises Assurances" means the guarantee
that, provided Permittees are properly implementing the terms and
conditions of the MSHCP, this Agreement, and the Permit(s), the
USFWS can only require additional mitigation for Covered Species
beyond that provided for in the MSHCP as a result of Unforeseen
Circumstances in accordance with the "No Surprises" regulations
at 50 C.F.R., Sections 17.22(b)(5) and 17.32(b)(5) and as discussed
in Section 6.8 of the MSHCP.
2.77 "Operation and Maintenance Activities ("O&M")"
means those Covered Activities that include the ongoing operation
and maintenance of public facilities, as described in Section 7.3.1.1
of the MSHCP.
2.78 "Other Conserved Habitat" means part of a
Conservation Area that does not contain Core Habitat for a given
species, but which still has Conservation value. These values may
include Essential Ecological Processes, Biological Corridors,
Linkages, buffering from edge effects, enhanced species
persistence probability in proximate Core Habitat, genetic
diversity, recolonization potential, and flexibility in the event of
long-term Habitat change.
2.79 "Participating Special Entity" means any regional
public service provider, such as a utility company or a public
district or agency, that operates and/or owns land within the Plan
Area and that applies for Take Authorization pursuant to Section
11.7 of this Agreement.
2.80 "Party" and "Parties" mean the signatories to this
Agreement, namely CVCC, CVAG, County, County Flood
Control, County Parks, County Waste, the Cities, CVWD, IID,
MSWD, Caltrans, State Parks, CVMC, CDFG, USFWS and any
other city within the Plan Area that incorporates after the Effective
Date and complies with Section 11.5 of this Agreement.
2.81 "Permit(s)" means, collectively, the Section
10(a)(1) Permit and NCCP Permit issued by the Wildlife Agencies
to Permittees for Take of Covered Species pursuant to FESA and
the NCCP Act and in conformance with the MSHCP and this
Agreement.
2.82 "Permittees" means CVAG, CVCC, County,
County Flood Control, County Parks, County Waste, the Cities,
CVWD, IID, MSWD, Caltrans, State Parks and CVMC.
2.83 "Plan" means the Coachella Valley Multiple
Species Habitat Conservation Plan, a comprehensive multiple
species habitat conservation planning program that addresses
multiple species' needs, including Habitat and the preservation of
natural communities in the Coachella Valley area of Riverside
County, California, as depicted in Figure 4-1 in Section 4 of the
MSHCP and Exhibit "A" of this Agreement.
2.84 "Plan Area" means the boundaries of the MSHCP,
consisting of approximately 1.1 million acres in the Coachella
Valley area of Riverside County, California, as depicted in Figure
1-2 of the MSHCP Plan, and Exhibit "B" to this Agreement.
2.85 "Planning Agreement" means the Memorandum of
Understanding prepared consistent with the NCCP Act to guide
development of the MSHCP that is contained in Appendix II of the
MSHCP.
2.86 "Plan Participants" means CVAG, CVCC, County,
County Flood Control, County Parks, County Waste, the Cities,
CVWD, IID, MSWD, CVMC, Caltrans, State Parks and others
receiving Take Authorization under the Permits.
2.87 "Private Conservation Land" means land owned by
a non-governmental entity committed to Conservation in perpetuity
through deed restriction, conservation easement, or other binding
agreement satisfactory to CDFG and USFWS.
2.88 "Reserve Lands" means Existing Conservation
Lands, Additional Conservation Lands, and Complementary
Conservation.
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2.89 "Reserve Management Oversight Committee
("RMOC")" means the committee established by the CVCC to
provide biological, technical, and operational expertise for
implementation of the MSHCP, including oversight of the MSHCP
Reserve System, as described in Section 6.1.3 of the MSHCP.
2.90 "Reserve Management Unit ("RMU")" means the
unit identified in Section 6.1.4 of the MSHCP.
2.91 "Reserve Management Unit Plan ("RMUP")"
means the plan setting forth management practices for identified
portions of the MSHCP Reserve System Area, prepared and
adopted as described in Section 6.2 of the MSHCP.
2.92 "Reserve System" means a synonym for MSHCP
Reserve System.
2.93 "Reserve System Assembly" means the process of
conserving lands within the Conservation Areas through
acquisition or other means to assemble the MSHCP Reserve
System.
2.94 "Rough Step" means a Conservation Area assembly
accounting process to monitor Conservation and loss of specified
Habitats within the Plan Area.
2.95 "Rough Step Analysis Unit" means a geographic
unit within which Rough Step is tracked. The Conservation Areas
are the Rough Step Analysis Units.
2.96 "Scientific Advisory Committee ("SAC")" means
the committee of scientists that provided scientific input into the
development of the Plan, as described in Section 3.1.1.
2.97 "Section 10(a) Permit" means the permit issued by
the USFWS to Permittees pursuant to 16 U.S.C., Section 1539(a),
authorizing Take of Covered Species.
2.98 "Special Provisions Area" means provisions that
apply to a given location or area, identified by a location
description or in a figure, which address specific conditions
necessary to achieve Conservation in that location or area.
2.99 "Species Conservation Goal(s)" means the Goals
for the Conservation of each Covered Species described in Section
9 of the MSHCP.
2.100 "State Assurances" means, except as provided in
Section 15.5 of this Agreement, provided Permittees are
implementing the terms and conditions of the MSHCP, the
Agreement, and the Permits, if there are Unforeseen
Circumstances, CDFG shall not require additional land, water or
financial compensation or additional restrictions on the use of land,
water or other natural resources for the life of the NCCP Permit
without the consent of the Permittees, unless CDFG determines that
continued implementation of this Agreement, the MSHCP, and/or
the Permits would jeopardize the continued existence of a Covered
Species, or as required by law and would therefore lead to NCCP
Permit revocation or suspension.
2.101 "State Permittees" means Caltrans, State Parks, and
CVMC.
2.102 "Take" means the definition of such term in FESA
and the California Fish and Game Code. Section 9 of FESA does
not prohibit Take of Federally Listed plants.
2.103 "Take Authorization" means the ability to
incidentally Take species pursuant to the Section 10(a)(1)(B) Permit
and/or the NCCP Permit.
2.104 "Third Party Take Authorization" means Take
Authorization received by a landowner, developer, or other public
or private entity from the Permittees pursuant to Section 17 of this
Agreement, thereby receiving Take Authorization for Covered
Species pursuant to the Permits.
2.105 "Threatened Species" means those species listed as
threatened under FESA and/or CESA.
2.106 "Unforeseen Circumstances" means changes in
circumstances affecting a Covered Species or geographic area
covered by the MSHCP that could not reasonably have been
anticipated by the Parties at the time of the MSHCP's negotiation
and development, and that result in a substantial and adverse
change in the status of the Covered Species. As defined, the term is
intended to have the same meaning as it is used: (1) to define the
limit of the Permittees' obligation on the "No Surprises" regulations
set forth in 50 C.F.R., Sections 17.22(b)(5) and 17.32(b)(5); and (2)
in California Fish and Game Code, Section 2805(k).
2.107 "United States Fish and Wildlife Service
("USFWS")" means an agency of the United States Department of
the Interior.
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2.108 "Wildlife Agencies" means USFWS and CDFG,
collectively.
3. RECITALS
This Agreement is entered into with regard to the following facts:
WHEREAS, CVAG is a joint powers authority, created pursuant to the provisions of
Government Code section 6500; and
WHEREAS, CVCC is a joint powers authority, created pursuant to the provisions of
Government Code section 6500; and
WHEREAS, CVWD is a governmental agency, created pursuant to the provisions of
California Water Code section 30000; and
WHEREAS, IID is a governmental agency, created pursuant to the provisions of
California Water Code section 20500; and
WHEREAS, MSWD is a County Water District, created pursuant to the provisions of
California Water Code section 3000 et seq; and
WHEREAS, the County is a governmental agency, created pursuant to the provisions of
the California Government Code, Title 3, Div. 1, Chapter 3, Article 1, section 23300; and
WHEREAS, County Flood Control is a governmental agency, created pursuant to the
provisions of the California Water Appendix, Chapter 48-1; and
WHEREAS, County Parks is a governmental agency, created pursuant to the provisions
of Public Resources Code section 5506.7; and
WHEREAS, County Waste is a governmental agency, created pursuant to the provisions
of the Health and Safety Code sections 4700 et seq.; and
WHEREAS, the Cities are California municipal corporations located within the Coachella
Valley of Riverside County, California; and
WHEREAS, Caltrans is a department of the California Business, Transportation and
Housing Agency, created pursuant to the provisions of the California Government Code sections
14000 et seq.; and
WHEREAS, State Parks is a department of the California Resources Agency, created
pursuant to the provisions of the California Government Code sections 14000 et seq.; and
WHEREAS, CVMC is a state agency within the California Resources Agency, created
pursuant to the provisions of Public Resources Code sections 33500 et seq.; and
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WHEREAS, CDFG is a department of the California Resources Agency with jurisdiction
over the conservation, protection, restoration, enhancement and management of fish, wildlife,
native plants and habitat necessary for biologically sustainable populations of those species under
the California Endangered Species Act (California Fish and Game Code sections 2050 et seq.), the
California Native Plant Protection Act (California Fish and Game Code sections 1900 et seq.), the
California Natural Community Conservation Planning Act (California Fish and Game Code
sections 2800 et seq.) and other relevant state laws; and
WHEREAS, USFWS is an agency of the United States Department of the Interior and has
jurisdiction over the conservation, protection, restoration, enhancement and management of fish,
wildlife, native plants and habitat necessary for biologically sustainable populations of those
species to the extent set forth in FESA and other relevant federal laws; and
WHEREAS, the MSHCP is a multi jurisdictional habitat conservation plan focusing on
the conservation of both sensitive species and associated habitats to address biological and
ecological diversity conservation needs in the Coachella Valley and surrounding mountains
located in Central Riverside County, setting aside significant areas of undisturbed land for the
conservation of sensitive habitat while preserving open space and recreational opportunities; and
WHEREAS, the MSHCP's external boundaries encompass approximately 1.2 million
acres, which extend to include the Coachella Valley watershed; and
WHEREAS, certain plant and animal species and habitat have been identified that exist,
or may exist, within the Coachella Valley and surrounding mountains, and which have been: 1)
state or federally listed as threatened or endangered; 2) proposed for listing as threatened or
endangered; or 3) identified as a CDFG Species of Special Concern, a California Fully Protected
Species, a California Specially Protected Species, a sensitive plant species as determined by the
California Native Plant Society or other unlisted wildlife considered sensitive within the Plan Area;
and
WHEREAS, future growth and land development within the Plan Area, including both
public and private projects, may result in the "taking" of such species as defined in state and federal
law, thus requiring Take Authorization prior to the carrying out of otherwise lawful activities; and
WHEREAS, the MSHCP will give the County, the Cities and other Permittees the ability
to control local land use decisions and maintain economic development flexibility while providing
a coordinated reserve system and implementation program that will facilitate the preservation of
biological diversity, as well as enhancing the region's quality of life. Such planning is an effective
tool in protecting the region's biodiversity while reducing conflicts between protection of wildlife
and plants and the reasonable use of natural resources for economic development; and
WHEREAS, the MSHCP addresses the potential impacts of urban growth, natural habitat
loss and species endangerment, and creates a plan to mitigate for the potential loss of Covered
Species and their habitats due to the direct and indirect impacts of future development of both
private and public lands within the Plan Area; and
WHEREAS, the MSHCP, this Agreement and the Permits establish the conditions under
which the Permittees will receive from the USFWS and CDFG certain long-term Take
14
Authorizations and other assurances that will allow the taking of Covered Species incidental to
lawful uses authorized by the Permittees; and
WHEREAS, Permittees will, for the benefit of public and private property owners and
other project proponents within the MSHCP boundaries, transfer Take Authorization received
from the Wildlife Agencies through the land use entitlement process, issuance of Certificate of
Inclusion or other appropriate mechanism as set forth in the MSHCP and this Agreement; and
WHEREAS, Permittees, with technical assistance from the USFWS and CDFG, have
prepared the MSHCP as part of their application for Take Authorization for Covered Species, as
defined below, to the Wildlife Agencies under FESA and the NCCP Act, which describes the
biological impacts of the MSHCP on the Covered Species and their habitats, and defines the
comprehensive avoidance, minimization, conservation and mitigation measures required to avoid
and mitigate effects of Take of Covered Species from Permittees' Covered Activities; and
WHEREAS, the MSHCP has been developed through a cooperative effort involving
USFWS, CDFG, local governmental agencies, property owners, development interests,
environmental interest groups and other members of the public.
AGREEMENT
THEREFORE, the Parties do hereby understand and agree as follows:
4. PURPOSES
The purposes of this Agreement are:
4.1 To ensure implementation of each of the terms of
the MSHCP and this Agreement for the benefit of the Covered
Species and Natural Communities, while allowing well managed
and planned future economic growth;
4.2 To describe remedies and recourse should any Party
fail to perform its obligations, responsibilities and tasks as set forth
in the MSHCP, the Permits and this Agreement; and
4.3 To provide assurances to Permittees and others
participating in the MSHCP that:
A. With respect to Covered Species, compliance with the terms of the MSHCP,
the Permits and this Agreement constitutes compliance with the provisions
of FESA, CESA and the NCCP Act;
B. Implementation of this Agreement and the MSHCP will adequately provide
for the Conservation and protection of the Covered Species and their
Habitats in the Plan Area; and
15
C. Pursuant to the federal "No Surprises" provisions of 50 Code of Federal
Regulations, section 17.22(b)(5) and 17.32(b)(5) and State Assurances
pursuant to Fish and Game Code section 2820(0 and Sections 14.11 and
15.3 of this Agreement, respectively, as long as the terms of the MSHCP,
this Agreement and the Permits are properly implemented, the Wildlife
Agencies will not require additional mitigation from Permittees, with
respect to Covered Species, except as provided for in this Agreement or as
required by law.
5. INCORPORATION OF THE MSHCP
The MSHCP and each of its provisions are intended to be, and by this reference are,
incorporated herein. In the event of any direct contradiction between the terms of this Agreement
and the MSHCP, the terms of this Agreement will control. In all other cases, the terms of this
Agreement and the terms of the MSHCP will be interpreted to be supplementary to each other.
6. CONSERVATION STRATEGY
6.1 The MSHCP is intended to conserve adequate habitat in an unfragmented manner
to provide for the protection and security of long-term viable populations of the species that are
either currently listed as threatened or endangered, are proposed for listing, or are believed to have
a high probability of being proposed for listing in the future if not protected by the Plan. The
MSHCP is intended to preserve biological diversity as well as maintain the quality of life within
the Coachella Valley and surrounding mountains by conserving species and their associated
habitats and coordinating, streamlining and planning Development. By adopting this regional
approach, the MSHCP will result in much greater and more biologically effective Habitat and
species Conservation than a project -by -project approach could produce. The MSHCP is intended
to proactively address requirements of the state and federal ESAs to avoid disruption of economic
development activities in the Plan Area.
6.2 The MSHCP provides a broad Conservation Strategy, which will be implemented
generally through the following:
A. As set forth in Section 4.0 of the MSHCP, the MSHCP Reserve System
shall be approximately 745,900 acres and will consist of Existing
Conservation Lands, lands conserved through Complementary
Conservation and Additional Conservation Lands. The MSHCP Reserve
System is divided into 21 Conservation Areas that provide Core and other
Conserved Habitat for Covered Species, conserve the natural communities
included in the Plan and Essential Ecological Processes essential to sustain
the Core Habitat and secure Biological Corridors and Linkages between
major Habitat areas.
B. For each of the Conservation Areas, Conservation Objectives and required
measures shall be implemented as set forth in Section 4.3 of the MSHCP.
16
C. New land uses adjacent to or within the MSHCP Conservation Areas shall
implement the Land Use Adjacency Guidelines set forth in Section 4.5 of
the MSHCP, as applicable.
D. The Avoidance, Minimization and Mitigation Measures set forth in Section
4.4 of the MSHCP shall be implemented.
E. Monitoring and management activities will be undertaken for each of the
MSHCP Covered Species. Monitoring and management activities are
described in Section 8 of the MSHCP.
F. Species-specific Conservation Goals and Objectives shall be implemented
for each of the Covered Species in the MSHCP and are set forth in Section
9 of the MSHCP.
G. Natural Communities Conservation Goals and Objectives have been
developed and shall be implemented for each of the Covered Natural
Communities in the MSHCP and are set forth in Section 10 of the MSHCP.
7. MSHCP RESERVE SYSTEM ASSEMBLY
7.1 Overview. As set forth in Section 4 of the MSHCP,
the MSHCP Reserve System will consist of approximately 745,900
acres and will consist of Existing Conservation Lands, lands
conserved through Complementary Conservation and Additional
Conservation Lands. The MSHCP Reserve System is divided into
21 Conservation Areas that provide Core and other Conserved
Habitat for Covered Species, conserve the natural communities
included in the Plan and Essential Ecological Processes essential to
sustain the Core Habitat and secure Biological Corridors and
Linkages between major habitat areas.
7.2 Contribution of Existing Conservation Lands.
As described in Section 4.1 of the MSHCP, the MSHCP Reserve
System will include Existing Conservation Lands. As of 1996,
these lands were comprised of approximately 496,400 acres.
Because of acquisitions, the acreage had increased to 557,100 by
2006. Of this acreage, 491,500 acres (as of 1996), or 529,200 acres
(as of 2006) are federal and state Existing Conservation Lands.
Approximately 900 acres (as of 1996), or 19,100 acres (as of 2006)
are non-profit organization Existing Conservation Lands.
Approximately 4,000 acres (as of 1996) or 8,800 acres (as of 2006)
are Local Permittee Existing Conservation Lands.
7.3 Complementary Conservation. As described in
Section 4.2.1 of the MSHCP, the MSHCP Reserve System will
include approximately 69,290 acres (as of 1996), or 29,990 acres
(as of 2006) through Complementary Conservation efforts. Such
17
efforts include BLM and United States Forest Service acquisition
programs in the Santa Rosa and San Jacinto Mountains National
Monument, BLM Wilderness in -holding acquisitions, including
Mecca Hills and Orocopia Mountains Wilderness Areas, and
Joshua Tree National Park.
7.4 Contribution of Additional Conservation Lands.
As described in Table 4-1 and Sections 4.2.2 and 5.1.1 of the
MSHCP, the MSHCP Reserve System will include Additional
Conservation Lands comprised of approximately 129,690 acres as
of 2006, that will be acquired or otherwise conserved. Of this
acreage, approximately 96,400 acres (as of 2006) will be acquired
or otherwise conserved as the Local Permittees' share of Plan
implementation. Approximately 39,850 acres (as of 1996) or
21,390 acres (as of 2006) will be acquired or otherwise conserved
as the state and federal contribution to Plan implementation.
Approximately 10,800 acres of public and quasi -public lands are
also projected to be conserved. In addition, as described in Section
4.2.2.2.4 of the MSHCP, the Local Permittees will protect the
fluvial sand transport Essential Ecological Process in the Cabazon,
Long Canyon, and West Deception Canyon Conservation Areas to
ensure no net reduction in fluvial sand transport in these areas,
which comprise approximately 7,800 acres.
7.5 Review of Development Proposals in
Conservation Areas. As set forth in Section 4.3 of the MSHCP,
Development in Conservation Areas will be limited to uses that are
compatible with the Conservation Objectives for the specific
Conservation Area. Discretionary Projects in Conservation Areas,
other than second units on parcels with an existing residence, shall
be required to assess the project's ability to meet the Conservation
Objectives in the Conservation Area. Additionally, the Permittees
will participate in the Joint Project Review Process set forth in
Section 6.6.1.1 of the MSHCP.
7.6 Reserve Assembly Accounting. In order to ensure
that the MSHCP Reserve System is established, all Permittees will
be required to maintain a record of total acres and location of
Development within their jurisdiction within the Plan boundaries
and submit this information to the CVCC on a monthly basis.
However, Caltrans must submit such information on a bi-annual
basis. As set forth in Section 6.4 of the MSHCP, annual reports will
be prepared in order to account for Habitat losses and gains
associated with public and private Development projects. The
annual reports will be used to demonstrate that Conservation is
occurring in rough proportionality with Development, reflect that
the MSHCP Reserve System is being assembled as contemplated
18
in the MSHCP and ensure that Habitat Conservation Goals and
Objectives and required measures are being implemented.
8. MSHCP RESERVE SYSTEM MANAGEMENT REQUIREMENTS
8.1 Overview. The MSHCP Reserve System will be
managed pursuant to Section 8 of the MSHCP. The Plan
establishes RMUs to ensure coordinated management in order to
achieve the Conservation Goals and Objectives. Additionally,
within three (3) years of Permit issuance, the RMUCs and the Land
Manager will develop a Reserve System Management Plan. The
elements of this plan are described in Section 6.2 of the MSHCP
and will include ongoing management measures and Adaptive
Management actions.
8.2 Management Activities. Management activities
pursuant to the MSHCP are set forth in Section 8 of the MSHCP.
As set forth in Sections 6.1.3 and 8.2.2 of the MSHCP, such
activities will be overseen by the RMOC and implemented by the
RMUCs, in coordination with the Land Manager and Monitoring
Program Administrator.
8.3 Management Program. Section 8 of the MSHCP
sets forth the Management Program, allowing flexibility to ensure
protection of species for which current scientific data is currently
lacking. Consistent with an Adaptive Management approach, the
Parties agree that the methods and means of implementing the
Management Program shall be changed as necessary to respond to
species' needs and new scientific data as these items may change
over time.
9. MSHCP RESERVE SYSTEM MONITORING REQUIREMENTS
9.1 Monitoring Program. Monitoring of the MSHCP
Reserve System will be instituted pursuant to Section 8.3 of the
MSHCP. Implementation of the long-term Monitoring Program
includes an initial inventory and assessment period.
9.2 Monitoring Program Administrator. A
Monitoring Program Administrator shall be selected by the CVCC
and shall be responsible for implementing the Monitoring Program
19
with oversight from the RMOC. The Monitoring Program
Administrator's duties are set forth in Section 6.1.6 of the MSHCP.
9.3 Monitoring Reporting Requirements. Pursuant
to Section 8.7 of the MSHCP, the Monitoring Program
Administrator shall prepare annual monitoring reports that provide
an analysis of the monitoring results and any implications for the
Management Program and Reserve System Assembly. These
reports will be submitted to the RMOC, the RMUCs and the Land
Manager and will include, at a minimum, the items listed in Section
8.7 of the MSHCP.
10. REPORTING REQUIREMENTS
10.1 Annual Reporting. As described in Section 6.4 of
the MSHCP, the CVCC will prepare an annual report that will be
submitted to the Wildlife Agencies and Permittees. The annual
report for the preceding calendar year shall be submitted by March
30. The annual report shall be presented at a CVCC public
workshop and copies made available to the public. The annual
report shall include, at a minimum, the following information:
A. An overview of the status of the Conservation Areas.
B. Results of monitoring as described in Section 8.7 of the MSHCP.
Identification of Adaptive Management actions indicated and whether or
not such actions were implemented.
C. A description of Reserve Management activities for the previous year.
D. An accounting of the number of acres acquired, conserved through
cooperative management agreements or otherwise protected during the
previous year to quantify the progress achieved towards identified
Conservation Objectives.
E. An accounting of the number of acres of Core Habitat, Essential Ecological
Processes, Biological Corridors and Linkages and natural communities
conserved within each Conservation Area developed or impacted by
Covered Activities during the previous year.
F. An accounting of the number of acres of habitat for the species and natural
communities outside the MSHCP Conservation Areas in the Plan Area
developed during the previous year.
G. An accounting of the status of each Covered Species with respect to the
Species Conservation Goals and Objectives in Sections 4 and 9.
20
H. An evaluation of any significant issues encountered in Plan implementation
during the previous year and proposed resolution.
I. Expenditures for acquisition and MSHCP Reserve System management
over the previous year and applicable budgets for the upcoming fiscal year.
J. Summary of compliance activities required of Permittees.
K. A copy of the audit of CVCC finances for the most recent fiscal year.
L. Summary of all unauthorized/unpermitted activities detected and
enforcement actions taken during the previous year
M. Additional technical, commercial, and scientific information and/or data
that are reasonably available and necessary to evaluate performance and
compliance with the commitments and objectives of the Plan shall be
provided to the Wildlife Agencies upon written request.
10.2 Certification of Reports. All reports shall include
the following certification from the responsible entity official that
supervised or directed preparation of the report:
I certify that, to the best of my knowledge, after appropriate inquiries
of those involved in the preparation of the report, the information
submitted is appropriate and complete.
11. MSHCP IMPLEMENTATION STRUCTURE
11.1 Permittee Implementation Mechanisms. As set
forth below, the Permittees have selected legal mechanisms to
ensure implementation of the terms of the MSHCP and this
Agreement ("Implementation Mechanism"). The Permits shall be
effective upon issuance. If, however, within six (6) months of
execution of this Agreement, the County and Cities have not
adopted an appropriate Implementation Mechanism, the Wildlife
Agencies may initiate suspension or revocation proceedings
pursuant to Section 23.5 of this Agreement. The Permittees'
obligations to fully implement the terms and conditions of the
MSHCP and this Agreement commence upon execution of this
Agreement. After adoption of an Implementation Mechanism, the
Local Permittees shall submit a copy of the appropriate documents
to the CVCC and the Wildlife Agencies substantially in the form
addressed below, or take such other actions that will ensure
effective MSHCP implementation.
11.1.1 The Cities
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A. The Cities shall adopt an ordinance imposing the Local
Development Mitigation Fee as analyzed in the Nexus Fee
Report. A model ordinance imposing such fees is attached to
this Agreement as Exhibit "D." The Cities shall adopt
ordinances in substantially the same form or at a minimum,
containing the same requirements as the model ordinance.
B. The Cities shall adopt a resolution that adopts the MSHCP and
establishes procedures and requirements for the implementation
of its terms and conditions. A model resolution is attached to this
Agreement as Exhibit "E." The Cities shall adopt a resolution
in substantially the same form or at a minimum, containing the
same requirements as the model resolution. The resolution shall
contain at least the following conditions:
1. Commitment to ensure compliance with the
Conservation Area requirements and measures set forth
in Section 4 of the MSHCP, including but not limited to
the Property Owner Initiated Habitat Evaluation and
Acquisition Negotiation Strategy (HANS), if HANS is
applicable.
2. Imposition of all other terms of the MSHCP, this
Agreement and the Permits including but not limited to
participation in the Joint Project Review Process set forth
in Section 6.6.1.1 of the MSHCP, and compliance with
the applicable Land Use Adjacency Guidelines set forth
in Section 4.5 of the MSHCP.
3. Agreement to enforce all terms and conditions of the
MSHCP, this Agreement and the Permits.
11.1.2 The County.
A. The County shall establish a development mitigation fee for the
unincorporated area of the County to specifically provide for
habitat acquisition pursuant to the MSHCP.
B. The County shall implement the MSHCP through incorporation
of the relevant terms and requirements into its General Plan,
including but not limited to the following:
1. Commitment to ensure compliance with the
Conservation Area requirements and measures set forth
in Section 4.0 of the MSHCP, including but not limited
to the Property Owner Initiated Habitat Evaluation and
Acquisition Negotiation Strategy, if applicable.
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2. Imposition of all other terms of the MSHCP, this
Agreement and the Permits including but not limited to
participation in the Joint Project Review Process set forth
in Section 6.6.1.1 of the MSHCP, and compliance with
the applicable Land Use Adjacency Guidelines set forth
in Section 4.5 of the MSHCP.
3. Agreement to enforce all other terms and conditions of
the MSHCP, this Agreement and the Permits.
11.1.3 County Flood Control. County Flood Control shall implement the
MSHCP and this Agreement through execution of this Agreement.
11.1.4 County Parks. County Parks shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.5 County Waste. County Waste shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.6 CVCC. CVCC shall implement the MSHCP and this Agreement
through approval of a resolution that adopts the MSHCP and establishes
procedures and requirements for the implementation of its terms and
conditions for any Covered Activities. The CVCC shall adopt a
resolution in substantially the same form as the Model Resolution
attached as Exhibit "E."
11.1.7 CVAG. CVAG shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.8 CVMC. CVMC shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.9 Caltrans. Caltrans shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.10 State Parks. State Parks shall implement the MSHCP and this
Agreement through execution of this Agreement.
11.1.11 CVWD. CVWD shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.1.12 IID. IID shall implement the MSHCP and this Agreement through
execution of this Agreement.
11.1.13 MSWD. MSWD shall implement the MSHCP and this Agreement
through execution of this Agreement.
11.2 Organizational Structure
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11.2.1 Overview. Successful implementation of the MSHCP requires both a
local administrative structure and effective coordination with state and
federal partners. The Parties have therefore established an
Organizational Structure for implementation and management of the
MSHCP described in Section 6.1 of the MSHCP.
11.2.2 CVCC Organization
A. Overview. As set forth in Section 6.1 of the MSHCP,
implementation of the MSHCP will be overseen and
administered by the CVCC, a joint regional authority formed by
the County, the Cities, CVWD, IID, and MSWD. The CVCC
shall sign this Agreement and shall be a Permittee under the
Permits. However, the CVCC shall not limit County or City
local land use authority or prevent a Permittee from approving a
Discretionary Project. As set forth in Section 6.1.1 of the Plan,
the CVCC shall be formed prior to issuance of the Permits, as a
separate and independent joint powers authority.
B. Duties and Responsibilities. The CVCC shall provide the
primary policy direction for the implementation of the MSHCP
and will provide opportunities for public participation in the
decision-making process. The CVCC shall have, at a minimum,
the powers and duties as set forth in Section 6.1.1.2 of the
MSHCP.
11.2.3 Acquisition and Funding Coordinating Committee. To assist in
implementing its duties under the MSHCP, the CVCC shall form the
Acquisition and Funding Coordinating Committee to provide input on
local funding priorities and Additional Conservation Lands acquisition
priorities. As set forth in Section 6.1.2 of the MSHCP, the Acquisition
and Funding Coordinating Committee shall be formed within one
hundred twenty (120) days of the issuance of the Permits. Permittee
representatives on the Acquisition and Funding Coordinating
Committee shall be appointed by the CVCC and shall include any
Permittee requesting membership. The Wildlife Agencies shall be ex
officio members of the Acquisition and Funding Coordinating
Committee. The Acquisition and Funding Coordinating Committee
shall advise the CVCC on local funding priorities and Additional
Conservation Lands acquisitions as set forth in Section 6.1.2 of the
MSHCP. However, the CVCC will have final decision making
authority in establishing and implementing these local priorities.
11.2.4 Joint Project Review Process. To ensure that the requirements of the
Permits, the MSHCP and this Agreement are properly met, a Joint
Project Review Process for projects within the Conservation Areas shall
be instituted by the CVCC. The process for the Joint Project Review
Process is set forth in Section 6.6.1.1 of the MSHCP.
11.2.5 CVCC Executive Director.
A. Selection. An appropriate individual shall be selected as the
CVCC Executive Director by the CVCC to administer the Plan.
The Executive Director shall implement the duties and
responsibilities of the CVCC. During the first five (5) years, the
CVCC shall initially contract with CVAG for the Executive
Director within thirty (30) days of the formation of the CVCC.
B. Duties and Responsibilities. The Executive Director shall have
the powers and duties as set forth in Section 6.1.1.3 of the
MSHCP.
11.2.6 Reserve Management Oversight Committee.
A. Formation and Representation. As described in Section 6.1.3 of
the MSHCP, the RMOC is the primary interagency group that
will coordinate implementation of the Plan. The CVCC
Executive Director shall appoint the chair of the RMOC from
those entities identified below. The RMOC shall be assembled
within one hundred twenty (120) days of Permit issuance and
shall report to the CVCC. The RMOC shall be composed of one
representative from USFWS, CDFG, BLM, State Parks, CVCC,
the County and up to five other representatives, as appointed by
the CVCC, of private and public agencies or entities that hold
land dedicated to Conservation within the MSHCP Reserve
System. National Park Service (designated by NPS) and U.S.
Forest Service (designated by USFS) will be ex officio members.
B. Duties and Responsibilities. The RMOC shall have the duties
and responsibilities as set forth in Section 6.1.3 of the MSHCP.
11.2.7 Reserve Management Unit Committees. To coordinate management
of lands owned by different entities in the MSHCP Reserve System,
RMUCs will be established for each of the six Reserve Management
Units ("RMU"). The RMUs are described in Section 6.1.4 of the
MSHCP. The RMUCs shall be established within one hundred twenty
(120) days of Permit issuance. RMUC composition and duties and
responsibilities are set forth in Section 6.1.4 of the MSHCP.
11.2.8 Land Manager. As described in Section 6.1.5 of the MSHCP, the
CVCC may retain or contract with a person or entity to manage Local
Permittee RMU lands and coordinate through the RMUCs with the
entities managing Conservation land in the RMUs. The required
25
qualifications, duties and responsibilities of the Land Manager are set
forth in Section 6.1.5 of the MSHCP.
11.2.9 Monitoring Program Administrator. A Monitoring Program
Administrator selected by the CVCC shall be responsible for
implementing the Monitoring Program contained in Section 8 of the
MSHCP. The duties of the Monitoring Program Administrator are set
forth in Section 6.1.6 of the MSHCP.
11.2.10 MSHCP Reserve Management Unit Plan. As described in Section
6.2 of the MSHCP, the CVCC shall work with each RMUC to develop
a Reserve Management Unit Plan ("RMUP"). The RMUPs will define
specific management actions, schedules and responsibilities for Plan
implementation. The RMUPs shall be prepared within three (3) years of
Permit issuance and revised as necessary as lands are added to the
MSHCP Reserve System. The RMUPs shall contain, at a minimum, the
elements set forth in Section 6.2 of the MSHCP.
11.3 Changed Circumstances.
11.3.1 General Terms. Consistent with USFWS regulations regarding
Habitat Conservation Plan assurances, Section 6.8.3 of the MSHCP
identifies changes in the circumstances affecting the MSHCP Reserve
System and/or Covered Species which can be reasonably anticipated
and planned for in the MSHCP and describes the responses to such
changes that will be carried out by the Parties. Since the MSHCP
includes an Adaptive Management approach to reserve management,
changes over time and adaptive responses are already contemplated and
do not therefore require amendments to the MSHCP or the Permits. The
Parties agree that this Section and Section 6.8.3 of the MSHCP address
all reasonably foreseeable Changed Circumstances and describe
specific responses for them; other changes not identified as Changed
Circumstances will be treated as Unforeseen Circumstances.
11.3.2 Permittee -Initiated Response to Changed Circumstances.
Permittee(s) will give notice to the Wildlife Agencies within sixty (60)
calendar days after learning that any of the Changed Circumstances
listed in Section 6.8.3 of the MSHCP have occurred. As soon as
practicable thereafter, but no later than sixty (60) days after learning of
the Changed Circumstances, Permittee(s) will modify its/their activities
in the manner described in Section 6.8.3 of the MSHCP, to the extent
necessary to address the effects of the Changed Circumstances on the
Covered Species, and will report to the Wildlife Agencies on its/their
actions. Permittee(s) will undertake such modifications without
awaiting notice from the Wildlife Agencies.
11.3.3 Wildlife Agency -Initiated Response to Changed Circumstances. If
the Wildlife Agencies determine that Changed Circumstances have
occurred, they shall notify Permittee(s) in writing within sixty (60)
calendar days. Within sixty (60) days after receiving such notice,
Permittee(s) will begin implementation of the required changes and
report to the Wildlife Agencies on its/their actions. If the USFWS and/or
CDFG determine that Changed Circumstances have occurred and that a
Permittee has not responded in accordance with Section 6.8.3 of the
MSHCP, the Wildlife Agency or Agencies will so notify the affected
Permittee and the CVCC and will direct Permittee to make the required
changes.
11.3.4 Condemnation of Lands Providing Conservation Benefits. In the
event that an authority with eminent domain powers condemns part of
the lands to which the MSHCP's Conservation and mitigation measures
apply, the applicable Permittee shall seek full reimbursement for
fragmentation, and increased management and monitoring costs. The
applicable Permittee shall use all funds provided to the Permittee
through the condemnation proceedings to provide additional
Conservation and mitigation measures that will replace the
Conservation benefits that would have been provided by the condemned
lands.
11.3.5 New Listings of Species Not Covered by the MSHCP. The USFWS
or CDFG may list additional species under FESA and/or CESA as
threatened or endangered, delist species that are currently listed, or
declare listed species as extinct. In the event of a new listing of one or
more species not covered by the MSHCP, the following steps will be
taken.
If a species not covered by the MSHCP is listed as threatened or
endangered under FESA and/or CESA during the Permit application
process or during the life of the Permits, the USFWS and/or CDFG and
the Permittee(s) will identify actions that may cause Take, jeopardy or
adverse modification of Critical Habitat, and the Permittee(s) will avoid
such actions in the implementation of their Covered Activities until
approval of an amendment to the MSHCP to address the newly listed
species in accordance with the Modifications and Amendments
Procedures described in Section 6.12 of the MSHCP. Such avoidance
measures will include the following: 1) evaluation of applications for
proposed Covered Activities with respect to potential effects on the
newly listed species; such evaluations will include assessment of the
presence of suitable habitat for the newly listed species within the areas
potentially affected by the proposed Covered Activity and surveys for
the newly listed species, as appropriate, using accepted protocols; and
2) implementation of measures to avoid impacts to the newly listed
species based on the results of the data collected in item 1) above and
27
the evaluation of those data in the context of the design of the proposed
Covered Activity. Alternatively, a Plan amendment may not be pursued
and Take Authorization may be sought separately.
11.4 Annexation and Deannexation of Lands. Each of
the Permittees shall enforce the terms of the Plan, the Permits and
this Agreement as to all individuals or entities subject to its
jurisdiction, including lands in the Plan Area annexed into the
Permittees' jurisdictions after the Effective Date of this Agreement,
provided the Minor Amendment requirements of Section 6.12.3 of
the MSHCP and Section 20.4 of this Agreement have been met. If
the Minor Amendment requirements cannot be met, a Major
Amendment will be required.
In the event of the annexation or deannexation of any land within the Plan Area to
another jurisdiction that is not a Permittee, the Parties shall seek to enter into an agreement between
the Permittees, the Local Agency Formation Commission ("LAFCO"), the annexing or deannexing
jurisdiction and the Wildlife Agencies as part of the annexation process to ensure that any
Development of the annexed lands proceeds in accordance with the Conservation Goals and
Objectives of the MSHCP. If an agreement can be reached, that jurisdiction shall become a
Permittee after executing an addendum to this Agreement. If an agreement cannot be reached, or
if the MSHCP requirements are not imposed as a condition of annexation by LAFCO, then the
annexed or deannexed land will not receive Take Authorization pursuant to the Permits.
Additionally, such annexation or deannexation may result in the revocation or suspension of the
Permits pursuant to Section 23.5 of this Agreement. Parties within such annexed or deannexed
land that qualify as Participating Special Entities may receive Take Authorization as set forth in
Section 11.7 of this Agreement.
11.5 Incorporation of New Cities within MSHCP
Boundaries. The Parties anticipate that during the term of the
MSHCP, and after the Effective Date, one or more new cities may
be incorporated within the Plan Area. Such newly incorporated
cities, upon adoption of an appropriate Implementation Mechanism
and execution of an Implementing Agreement with the Wildlife
Agencies substantially similar in form to this Agreement, shall
receive Take Authorization pursuant to the Permits and all other
rights and obligations granted by the Permits, the MSHCP and this
Agreement. Incorporation of a new city within the Plan Area shall
constitute a Minor Amendment and shall be processed as such
pursuant to Section 20.4 of this Agreement and Section 6.12.3 of
the MSHCP. In the event a newly incorporated city fails to
participate in the MSHCP, the Permits may be revoked or
suspended as set forth in Section 23.5 of this Agreement.
11.6 Growth -Inducing Effects. Once mitigation has
been imposed upon the Permittees, Participating Special Entity, or
Third Party Granted Take Authorization for a proposed project in
28
conformance with the requirements of the MSHCP and the Permits,
Permittees shall not be required to provide or impose any additional
mitigation for any growth -inducing effects that such project may
have on a Covered Species and/or its Habitat within the Plan Area.
11.7 Participating Special Entity.
11.7.1 Take Authorization for Participating Special Entities. Any public
service provider, such as a utility company or a public district,
including, but not limited to, a school, water, or irrigation district, that
operates facilities and/or owns land within the Plan Area may request
Take Authorization for its activities pursuant to the Permits as a
Participating Special Entity. As set forth below, such activities must
comply with all of the terms and requirements of the Permits, the
MSHCP and this Agreement.
11.7.2 Grant of Take Authorization to Participating Special Entity. The
CVCC may grant Take Authorization to a Participating Special Entity
for its activities upon compliance with this Section. The Participating
Special Entity shall submit a complete application for the proposed
activity to the CVCC containing a detailed description of the proposed
activity, a map indicating the location of the proposed activity and an
analysis of its potential impacts to Covered Species and their Habitats
and to the MSHCP Reserve System.
Within thirty (30) days of receipt of the complete application, CVCC
and Wildlife Agency staff shall review the application. If CVCC staff,
with the concurrence of the Wildlife Agencies, finds that the proposed
activity complies with all terms and requirements of the MSHCP, the
Permits and this Agreement and does not compromise the viability of
the Permits or the MSHCP Reserve System, the CVCC shall issue a
Certificate of Inclusion upon completion or fulfillment in full of all
appropriate requirements as set forth below and the proposed activity
shall be deemed a Covered Activity. In the event the proposed activity
crosses the MSHCP Reserve System, CVCC staff must make a finding
supported by adequate evidence that the activity will result in a
biologically equivalent or superior alternative to the MSHCP Reserve
System prior to execution of a Certificate of Inclusion. The Certificate
of Inclusion shall depict on an attached map the lands by parcel number,
acreage and owner to which the proposed Take Authorization(s) would
apply. In the event that the proposed activity does not comply with the
terms and requirements of the Permits, the MSHCP and this Agreement,
and/or compromises the viability of the MSHCP Reserve System,
CVCC and Wildlife Agency staff shall meet with the proposed
Participating Special Entity representatives to attempt to reach a
mutually agreeable solution.
11.7.3 Requirements for Participating Special Entities. In addition to
complying with applicable sections of the MSHCP, Participating
Special Entities shall also contribute to Plan implementation through
payment of a fee based upon the type of proposed activity, which shall
be applicable to all activities in the Plan Area. For regional utility
projects that will be constructed to serve Development, such as major
truck lines, Participating Special Entities shall pay a fee in the amount
of 5% of total capital costs or make other contributions to the Plan as
may be agreed to by the CVCC and the Wildlife Agencies. For such
activities that will result in only temporary impacts (impacts that
generally last for less than five years) and disturbance, Participating
Special Entities shall pay a fee in the amount of 3% of total capital costs
or other appropriate measures as may be agreed to by the CVCC and the
Wildlife Agencies. Additionally, the Participating Special Entities will
be charged appropriate administration fees to process the application.
Public district or agency projects that will be constructed to serve
Development, such as new schools and treatment plants, inside the
Conservation Areas shall be designed and implemented pursuant to the
requirements of Section 4.0 of the MSHCP and all other requirements
of the MSHCP, including payment of Local Development Mitigation
Fees as adopted for commercial and industrial Development. For such
activities outside of the Conservation Areas, contribution will consist of
payment of Local Development Mitigation Fees as adopted for
commercial and industrial Development and any other applicable
requirements. All fees shall be collected by, or submitted to, the CVCC.
All obligations must be satisfied prior to impacts to Covered Species
and their Habitats.
12. FUNDING OF THE MSHCP
The funding of the MSHCP, including financing of Reserve System Assembly, and
management and monitoring will occur pursuant to Section 5.0 of the MSHCP.
12.1 Local Obligations.
12.1.1 Local Permittee Additional Conservation Lands Obligations. As
described in Sections 4.2 and 5.1.1 of the MSHCP, Local Permittees are
responsible for the Conservation of 96,400 acres of Additional
Conservation Lands (as of 2006). Approximately 88,900 acres will be
conserved through acquisition or other means. The projected cost in
2006 dollars for this acreage is approximately $301.5 million. The
related transaction costs for appraisals, escrow fees, etc. are estimated
to be approximately $15.1 million.
12.1.2 Administration Costs. The Local Permittees will be responsible for
certain Plan administration costs necessary to implement the terms and
conditions of the Plan, including staffing for the CVCC. As described
30
in Sections 5.1.2.3 and 5.1.3 of the MSHCP, the Local Permittee
obligation for Plan administration costs for the acquisition program is
approximately $493,000 in the first year, increasing by 3.29% annually
to offset inflation. Non -acquisition program administration costs are
estimated to be approximately $56,000 in the first year and
$115,414,000 over the life of the Plan.
12.1.3 Local Permittee Monitoring and Management Obligations. As
described in Sections 5 and 8 of the MSHCP, Local Permittees are
responsible under the Plan for monitoring, land management and
Adaptive Management costs on lands managed by the Local Permittees.
In addition, an endowment would be established to fund monitoring,
land management and Adaptive Management.
12.2 Local Funding Sources. The local funding
program will fund the Local Permittees' obligations under the
MSHCP as set forth in Section 5.2 of the Plan. The primary
components are as follows:
12.2.1 Local Development Mitigation Fees. As further described in Section
5.2.1.1 of the MSHCP, the County and the Cities shall adopt fee
ordinances establishing a Local Development Mitigation Fee to partially
fund Plan implementation. The projected revenues from the Local
Development Mitigation Fees are anticipated to be approximately $517
million over the first fifty (50) years of Plan implementation. The
County and the Cities shall transmit all collected Local Development
Mitigation Fees to the CVCC, at least quarterly, to be expended to fulfill
the terms of the MSHCP.
12.2.2 Transportation and Other Regional Infrastructure Project
Contribution. Permittees' transportation and other regional
infrastructure projects will contribute to Plan implementation. For
transportation infrastructure, the local funding program will provide
approximately $30 million in contribution from Measure A funds.
Additionally, CVWD will acquire 550 acres in the Thousand Palms
Conservation Area to mitigate for the Whitewater Flood Control project.
CVWD, IID, and MSWD will also make contributions to the
management and monitoring endowment. These total contributions are
estimated at approximately $4,108,400. Other regional utility and local
public capital construction projects will mitigate their impacts, in whole
or in part, under the MSHCP through payment of a per -acre mitigation
fee or other appropriate method. As described in Section 6.6.2 of the
Plan, Caltrans will acquire or fund the acquisition of 5,791 acres.
Caltrans will also contribute $7.6 million to CVCC for monitoring,
management and Adaptive Management. Caltrans and CVAG will also
acquire 1,795 acres as mitigation for freeway interchanges and
associated arterials and contribute $1,077,000 towards monitoring,
management and Adaptive Management endowment fund.
12.2.3 Landfill Tipping Fees. Landfill tipping fees in the Plan Area are
estimated to generate approximately $575,000 in 2006 from County
landfills, with a projected rate increase of 4% annually thereafter.
12.2.4 Eagle Mountain Landfill Environmental Mitigation Trust Fund.
Eagle Mountain Landfill tipping fees are estimated to generate $228
million dollars over the next seventy-five (75) years. Should the
availability of this funding source become unreliable, Section 5.2.2.4 of
the MSHCP provides potential alternative funding sources.
12.2.5 Additional Funding. As further described in Section 5.2.1.6 of the
MSHCP, the Parties shall seek additional funding from private, local,
state and federal sources including grants. Additionally, funds may be
received from Participating Special Entities. In addition, should certain
funding sources become unreliable, Section 5.2.2.4 of the MSHCP
provides potential alternative funding sources.
12.3 Annual Evaluation of Funding. On an annual
basis, the Permittees and the Wildlife Agencies will evaluate the
performance of the funding mechanisms and develop any necessary
modifications to address possible shortfalls. Additionally, this
annual evaluation will include an assessment of the funding plan
and anticipate funding needs over the next eighteen (18) months for
the purpose of identifying any potential deficiencies in cash flow.
If deficiencies are identified through this evaluation, the Permittees
and the Wildlife Agencies will develop strategies to address any
additional funding needs consistent with the terms and conditions
of the Plan. Additional funding needs will be addressed as set forth
in Section 5.2.2 of the MSHCP.
13. PERMITTEES' TAKE AUTHORIZATION AND OBLIGATIONS
13.1 Permittees' Take Authorization. Each Permittee
may engage in, and receive Take Authorization for, Covered
Activities as set forth in Section 7 of the MSHCP. The County and
Cities may also confer Take Authorization and approve projects
proposed within their respective jurisdictions, as set forth in
Sections 7.1 and 7.2 of the MSHCP. The County, Cities and the
CVCC may also confer Take Authorization through the issuance of
a Certificate of Inclusion or other written mechanism or instrument
as set forth in Section 11.7 of this Agreement.
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13.2 County and Cities Obligations. The County and
the Cities have the following obligations under the MSHCP and
this Agreement:
A. Adopt and maintain ordinances or resolutions as necessary, and amend their
general plans as appropriate, to implement the requirements and to fulfill
the purposes of the Permits, the MSHCP and this Agreement for private and
public projects. Such requirements and policies include: 1) compliance
with relevant processes to ensure application of the Conservation Area
requirements set forth in Section 4.0 of the MSHCP and thus, satisfaction
of the local acquisition obligation; 2) require compliance with the applicable
Land Use Adjacency Guidelines set forth in Section 4.5 of the MSHCP; 3)
maintain a record of total acres developed and their location within its
jurisdiction and transmit such information monthly to the CVCC; 4) convey
any changes in County or city boundaries or general plan land use
designations to CVCC at the end of each calendar year; 5) ensure
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 6) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 7) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Transmit any collected Local Development Mitigation Fees, other
appropriate fees and associated interest as described in Section 5.2.1.1 of
the MSHCP to the CVCC at least quarterly.
C. Contribute appropriate mitigation as determined by the affected Permittee
for County and City public projects, including, but not limited to, any one
or any combination of the following: 1) acquisition of replacement habitat
at a 1:1 ratio that is biologically equivalent or superior to the property being
disturbed; or 2) payment of the Local Development Mitigation Fees as
established for commercial and industrial Development. Such contributions
shall occur prior to impacts to Covered Species and their Habitats.
D. Participate as a member agency in the CVCC as set forth in Section 6.1.1
of the MSHCP.
E. Participate as a member of the RMOC as set forth in Section 6.1.3 of the
MSHCP, as appropriate.
F. Participate in the Joint Project Review Process set forth in Section 6.6.1.1
of the MSHCP for projects in the Conservation Areas.
G. Take all necessary and appropriate actions, following applicable land use
permit enforcement procedures and practices, to enforce the terms of project
approvals for public and private projects, including compliance with the
MSHCP, the Permits and this Agreement.
H. Manage MSHCP Reserve System lands or conservation easements owned
or leased by the County or respective City pursuant to Sections 8 and 9 of
the MSHCP.
I. Carry out all other applicable requirements of the MSHCP, this Agreement
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require the County or the Cities to provide
funding, or any other form of compensation, beyond the fees collected or
dedicated lands required pursuant to the Permits, this Agreement and the
MSHCP or other mitigation agreed to by the appropriate Parties.
13.3 CVCC Obligations. CVCC has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement, for projects for which it issues Take
Authorization such as for Participating Special Entities. Such requirements
include: 1) ensuring compliance with relevant processes to ensure
application of the Conservation Area requirements set forth in Section 4 of
the MSHCP; 2) ensuring compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Administer and oversee implementation of the MSHCP as set forth in
Section 6.1 of the MSHCP.
C. Collect and expend Local Development Mitigation Fees and other
applicable funds as described in Section 5 of the MSHCP.
D. Transfer Take Authorization to Participating Special Entities pursuant to
Section 11.7 of this Agreement.
E. Accept and manage MSHCP Reserve System property including
conservation easements that have been conveyed to it by the County, Cities
or other entity, agency or individual, pursuant to Section 6.1.1.2 of the
MSHCP.
F. Ensure compliance with the Conservation Objectives set forth in Section
4.3.7 of the MSHCP.
G. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require the CVCC to provide funding, or
any other form of compensation, beyond the fees collected or dedicated
lands required pursuant to the Permits, this Agreement and the MSHCP.
13.4 CVAG Obligations. CVAG has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities.
B. Contribute $30 million from Measure A or other funds as set forth in Section
6.6.1 of the Plan.
C. Carry out all other applicable requirements of the MSHCP, this Agreement
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require CVAG to provide funding, or any
other form of compensation, beyond the fees collected or dedicated lands
required pursuant to the Permits, this Agreement and the MSHCP or other
funding mechanisms identified in the Plan.
13.5 County Flood Control Obligations. County Flood
Control has the following obligations under the MSHCP and this
Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Contribute mitigation through payment of 3% of total capital costs for its
Covered Activities. Such payment may be offset through acquisition of
replacement Habitat or creation of new Habitat for the benefit of Covered
Species, as appropriate. Such mitigation shall be implemented prior to
impacts to Covered Species and their Habitats. This provision does not
apply to O&M activities.
C. Manage land owned or leased within the MSHCP Reserve System that has
been set aside for Conservation purposes in accordance with Sections 8 and
9 of the MSHCP.
D. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
E. Carry out all other applicable requirements of the MSHCP, this Agreement
and the Permits. Notwithstanding the foregoing, nothing in this Agreement
shall be construed to require County Flood Control to provide funding, or
any other form of compensation, beyond the fees collected, mitigation
payments of 3% of capital costs pursuant to Section 13.5 above, dedicated
lands required pursuant to the Permits or other MSHCP requirements, this
Agreement and the MSHCP.
13.6 County Parks Obligations. County Parks has the
following obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Contribute appropriate mitigation as determined by County Parks for its
projects, including, but not limited to, any one or any combination of the
following: 1) acquisition of replacement habitat at a 1:1 ratio that is
biologically equivalent or superior to the property being disturbed; or 2)
payment of the Local Development Mitigation Fees as established for
commercial and industrial Development. Such contribution shall occur
prior to impacts to Covered Species and their Habitats.
C. Manage and monitor land owned or leased within the MSHCP Reserve
System that has been set aside for Conservation purposes in accordance with
Sections 8 and 9 of the MSHCP.
D. Participate in the Joint Project Review Process for its projects, if any, within
the Conservation Areas as described in Section 6.6.1.1 of the Plan.
E. Carry out all other applicable requirements of the MSHCP, this Agreement
and the Permits. Notwithstanding the foregoing, nothing in this Agreement
36
shall be construed to require County Parks to provide funding, or any other
form of compensation, beyond the fees collected or dedicated lands required
pursuant to the Permits or other MSHCP requirements, this Agreement and
the MSHCP.
13.7 County Waste Obligations. County Waste has the
following obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Manage and monitor land owned within the MSHCP Reserve System that
has been set aside for Conservation purposes in accordance with Sections 8
and 9 of the MSHCP.
C. Participate in the Joint Project Review Process for its projects, if any, within
the Conservation Areas as described in Section 6.6.1.1 of the Plan.
D. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require County Waste to provide funding,
or any other form of compensation, beyond the requirements of the Permits,
this Agreement and the MSHCP.
13.8 CVWD Obligations. CVWD has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement, for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4.0 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
37
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.1 of the Plan, cooperate with CVCC towards
Conservation of a portion of the 7,000 acres CVWD owns in the
Conservation Area.
C. Contribute $3,583,400 towards the Endowment Fund for the Monitoring
Program, the Management Program and Adaptive Management.
D. Additional contributions as set forth in the Plan.
E. Participate as a member of the CVCC as set forth in Section 6.1.1 of the
MSHCP.
F. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
G. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require CVWD to provide funding, or any
other form of compensation, beyond the requirements of the Permits, this
Agreement and the MSHCP.
13.9 IID Obligations. IID has the following obligations
under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.1 of the Plan, cooperate with CVCC towards the
Conservation of a portion of the land it owns in the Conservation Areas.
C. Contribute $525,000 towards the Endowment Fund for the Monitoring
Program, the Management Program and Adaptive Management.
D. Participate as a member of the CVCC as set forth in Section 6.1.1.1 of the
MSHCP.
38
E. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
F. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require IID to provide funding, or any other
form of compensation, beyond the requirements of the Permits, this
Agreement and the MSHCP.
13.10 Caltrans Obligations. Caltrans has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.2 of the Plan, acquire and convey to CVCC or
provide funding to the CVCC sufficient to acquire 5,791 acres of Additional
Conservation Lands in the Conservation Areas as a contribution to Plan
implementation for the Covered Activities described in Section 7.2.2 of the
Plan. Within five (5) years of Permit issuance, Caltrans will provide $7.6
million to CVCC for the monitoring, management, and Adaptive
Management of the 5,791 acres.
C. Within one year of Permit issuance, CVCC and Caltrans shall prepare an
agreement that specifies that if the MSHCP Permits are ever revoked, a
conservation bank shall be established whereby the contributed lands are
conveyed to CDFG with an endowment sufficient to provide for the
permanent monitoring, land management, and Adaptive Management of the
land. CVCC, the Wildlife Agencies, and Caltrans will enter into a
Conservation Bank Agreement once a portion or all of the 5,791 acres are
acquired.
D. As described in Section 6.6.1 of the Plan, cooperate with CVAG and CVCC
in the acquisition of 1,795 acres to mitigate the interchange and associated
arterial projects, and the contribution of $1,077,000 to the endowment for
the Monitoring Program, Management Program, and Adaptive
Management of those lands.
39
E. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits.
13.11 State Parks Obligations. State Parks has the
following obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.2 of the Plan, prior to construction of camping,
trailhead, and trail facilities as a Covered Activity in the Indio Hills/Joshua
Tree National Park Linkage Conservation Area, acquire a minimum of 640
acres in the Conservation Area, of which a maximum of 100 acres may be
developed as a Covered Activity. Development of the camping and
trailhead facility must be consistent with the Conservation Objectives for
the Conservation Area.
C. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits.
13.12 CVMC Obligations. CVMC has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities, if any. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. Manage easements and land owned or leased within the MSHCP Reserve
System that have been set aside for Conservation purposes in accordance
with Sections 8 and 9 of the MSHCP.
C. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require CVMC to provide funding, or any
other form of compensation, beyond the fees collected or dedicated lands
required pursuant to the Permits, this Agreement and the MSHCP.
13.13 MSWD Obligations. MSWD has the following
obligations under the MSHCP and this Agreement:
A. Implement the necessary requirements to fulfill the purposes of the Permits,
the MSHCP and this Agreement for its Covered Activities, if any. Such
requirements include: 1) compliance with relevant processes and measures
to ensure application of the Conservation Area requirements set forth in
Section 4 of the MSHCP; 2) compliance with the applicable Land Use
Adjacency Guidelines as set forth in Section 4.5 of the MSHCP; 3)
compliance with the Avoidance, Minimization and Mitigation Measures in
Section 4.4 of the MSHCP; 4) ensure implementation consistent with the
Species Conservation Goals and Objectives in Section 9 of the MSHCP;
and 5) permanently protect and manage Mitigation Land within the reserve
system legally owned and/or controlled by the entity unless conveyed to the
CVCC.
B. As set forth in Section 6.6.1 of the MSHCP, cooperate with CVCC towards
Conservation of a portion of the 61 acres MSWD owns in the Conservation
Area.
C. Contribute $350,000 towards the Endowment Fund for the Monitoring
Program, the Management Program and Adaptive Management.
D. Additional non -monetary contributions as set forth in the MSHCP.
E. Participate as a member of the CVCC as set forth in Section 6.1.1 of the
MSHCP.
F. Participate in the Joint Project Review Process for its projects within the
Conservation Areas as described in Section 6.6.1.1 of the Plan.
G. Carry out all other applicable requirements of the MSHCP, this Agreement,
and the Permits. Notwithstanding the foregoing, nothing within this
Agreement shall be construed to require MSWD to provide funding, or any
other form of compensation, beyond the requirements of the Permits, this
Agreement and the MSHCP.
14. USFWS OBLIGATIONS AND ASSURANCES
14.1 Take Authorization for Covered Activities.
Upon execution of this Agreement by all Parties, and satisfaction
of all other applicable legal requirements, the USFWS will issue
Permittees a permit under section 10(a)(1)(B) of FESA authorizing
incidental Take by Permittees of the Covered wildlife Species
resulting from Covered Activities within the Plan Area, subject to
and in accordance with, the MSHCP, the Permits and this
Agreement.
14.2 USFWS Findings - Covered Species. The
USFWS has found, following opportunity for public comment,
that: 1) the taking of Covered Species within the Plan Area in
accordance with the MSHCP as implemented will be incidental to
the carrying out of otherwise lawful activities; 2) the MSHCP as
implemented will, to the maximum extent practicable, minimize
and mitigate the impacts of such incidental taking; 3) the funding
sources identified and provided for herein will ensure that adequate
funding for the MSHCP will be provided; 4) the requested taking
of Covered wildlife Species will not appreciably reduce the
likelihood of survival and recovery of such species in the wild; and
5) the MSHCP, as implemented, will satisfy and fulfill all measures
agreed upon by the Parties for the purposes of the MSHCP
(including procedures determined by the USFWS to be necessary
to address Unforeseen Circumstances).
14.3 Section 10(a) Permit Coverage. The Section 10(a)
Permit will identify all Covered Species. The Permit will take
effect for FESA listed Covered Species at the time that the Section
10(a) Permit is issued. For currently Unlisted Species, the Permit
will take effect when such species are Listed.
14.4 Implementation Assistance. Subject to Section
27.10 of this Agreement, USFWS shall provide staff to serve on all
appropriate committees and shall ensure, to the extent possible,
staff participation in discussions and meetings with the other
Parties to ensure that the implementation of this Agreement is
consistent with any findings upon which the Section 10(a) Permit
is based. In the event that other habitat conservation plans are
proposed within the boundaries of the MSHCP, the USFWS will
require the proponents to consult with the CVCC during the
development of the habitat conservation plan or prior to completion
of the Section 7 consultation process. The USFWS shall, to the
extent appropriate, cooperate with the Permittees in obtaining
additional funding from sources including, but not limited to,
42
existing and future state and federal grant programs and existing
and future bond issues.
14.5 Assurances Regarding MSHCP. After
opportunity for public review and comment, based on the best
available current scientific and commercial data, the USFWS has
found that the MSHCP, as implemented by this Agreement: 1) is
consistent with and will complement other applicable Conservation
planning and regulatory programs and efforts addressing wildlife
within the region, 2) minimizes and mitigates the potential
significant adverse impacts of the Covered Activities on the
Covered Species, 3) will ensure that the measures agreed upon by
the Permittees and the USFWS will be met, and 4) will be
implemented. The USFWS shall not take a position inconsistent
with the acknowledgments set forth in this Section, including,
without limitation, in the form of comments offered by the USFWS
in the context of any CEQA or NEPA process associated with
approvals for Covered Activities, with regard to effects on Covered
Species.
14.6 Take Authorization for Newly Regulated
Covered Species; Savings Provision. Subject to compliance with
all other terms of this Agreement, the Section 10(a) Permit will
automatically become effective for each Unlisted Covered Species
upon the listing of such species as endangered or threatened under
FESA. If it is judicially determined that the USFWS was not
authorized to cause the Section 10(a) Permit to become effective
automatically as to Covered Species as they become listed pursuant
to FESA, the USFWS shall accept the minimization and mitigation
measures in the MSHCP and this Agreement as the basis for an
application for a section 10(a) amendment or separate Section 10(a)
Permits, MBTA Permits, and/or other Take Authorizations. The
USFWS shall use reasonable efforts to review and process the
application expeditiously so as to ensure, provided the Permit
amendment or application meets the requirements of FESA and
other applicable federal laws, that the Take Authorization is
effective concurrently with the listing of the Covered Species under
FESA. In issuing such Permits, amendments and/or Take
Authorizations, and to the extent that such judicial determination
creating the circumstances requiring such additional review and
processing allows, the USFWS shall not request, impose,
recommend or require further mitigation, Conservation,
compensation, enhancement or other protection for such Covered
Species except as expressly provided in this Agreement.
14.7 Changes in the Environmental Laws. It is
acknowledged and agreed by the USFWS that the Permittees are
43
agreeing to perform substantial avoidance, minimization,
mitigation, Conservation and management measures as set forth in
this Agreement. If a change in, or an addition to, any federal law
governing or regulating the impacts of Development on land, water
or biological resources as they relate to Covered Species, including,
but not limited to, FESA and NEPA, the USFWS shall give due
consideration to the measures required under the MSHCP in
applying the new laws and regulations to the Permittees.
14.8 Section 7 Consultations. The USFWS will
evaluate the direct, indirect, and cumulative effects of the Covered
Activities in its internal FESA biological opinion issued in
connection with the MSHCP and issuance of the Section 10(a)
Permit. As a result, and to the maximum extent allowable, in any
consultation under section 7 of FESA subsequent to the Effective
Date involving the Permittee(s) or entity with Third Party Take
Authorization with regard to Covered Species and Covered
Activities, the USFWS shall ensure that the FESA biological
opinion issued in connection with the proposed project that is the
subject of the consultation is consistent with the internal FESA
biological opinion. Such projects must be consistent with the terms
and conditions of the MSHCP and this Agreement. Any terms and
conditions included under the reasonable and prudent measures of
a FESA biological opinion issued subsequent to the Effective Date
with regard to the Covered Species and Covered Activities shall, to
the maximum extent appropriate, be consistent with the
implementation measures of the MSHCP and this Agreement. The
USFWS shall not impose measures in excess of those that have
been or will be required by the Permittee(s) or entity with Third
Party Take Authorization pursuant to the MSHCP and this
Agreement. The USFWS shall process subsequent FESA
consultations for Covered Activities in accordance with the process
and time periods set forth in 50 Code of Federal Regulations,
section 402.14. The Parties agree that this section does not create
an independent cause of action.
14.9 Critical Habitat Designation for Covered
Species. The USFWS acknowledges and agrees that the MSHCP
and this Agreement provide a comprehensive, habitat -based
approach to the protection of Covered Species by focusing on the
lands essential for the long-term Conservation of the Covered
Species and appropriate management for those lands. This
approach is consistent with the overall purposes of FESA to
provide a means whereby the ecosystems upon which endangered
and threatened species depend may be conserved. FESA
regulations specify that the criteria to be used in designating critical
habitat include "those physical and biological features that are
44
essential to the Conservation of a given species and that may
require special management considerations or protection." (50
C.F.R. § 424.12(b).)
The MSHCP and this Agreement provide for the protection of those physical and
biological features essential to the Conservation of the Covered Species in a manner consistent
with USFWS regulations concerning the designation of Critical Habitat. The USFWS agrees that,
to the maximum extent allowable after public review and comment, in the event that a Critical
Habitat determination is made for any Covered Species, and unless the USFWS finds that the
MSHCP is not being implemented, lands within the boundaries of the MSHCP will not be
designated as Critical Habitat. In addition, if Critical Habitat is designated within the MSHCP
boundaries, pursuant to Section 14.11 of this Agreement and except as expressly provided in
Section 14.11 of this Agreement and Section 6.8 of the MSHCP regarding Unforeseen
Circumstances, no subsequent evaluation of the Covered Species, nor any mitigation,
compensation, Conservation enhancement or other protective measures other than those set forth
in the MSHCP will be required. Moreover, to the maximum extent allowable after public review
and comment, the USFWS agrees to reassess and revise the boundaries of existing designated and
proposed Critical Habitat of Covered Species within the MSHCP boundaries after its approval,
although the Parties recognize that funding constraints may influence the timing of such regulatory
action.
14.10 Future Recovery Plans. Recovery plans under
FESA delineate actions necessary to recover and protect federally
Listed Species. These plans frequently include information, or may
lead to the development of information, that can contribute to the
development of an adaptive management program. However,
recovery plans do not obligate any Permittee, individual or entity
to undertake specific tasks.
The Parties acknowledge that FESA recovery plans have no effect on the
implementation of this MSHCP, except to the extent that they may contribute information to, or
assist in achieving the goals of, the Management Program. Any recovery plan applicable to any
Covered Species found in the Plan Area that is developed after the Effective Date shall:
A. Not require any additional land or financial compensation by Permittees;
B. Be finalized only after the USFWS has consulted with and requested input
from the CVCC and made reasonable attempts to give notice to Plan
Participants of the preparation of the recovery plan; and
C. Not in any way diminish the Take Authorization for Covered Species
granted to Permittees pursuant to the MSHCP, this Agreement, or the
Section 10(a) Permit.
14.11 No Surprises Assurances and Unforeseen
Circumstances.
45
14.11.1 No Surprises Assurances. The USFWS has promulgated the Habitat
Conservation Plan Assurances Rule, published in the Federal Register
on February 23, 1998 (63 Federal Register 8859), and codified at
50 Code of Federal Regulations, sections 17.3, 17.22(b) and 17.32(b)
("No Surprises Rule").
14.11.2 Pursuant to the No Surprise Rule, the assurances by the USFWS in this
Section shall apply so long as the commitments and provisions of the
MSHCP, this Agreement and the Section 10(a) Permit are properly
implemented.
14.11.3 As set forth in Section 6.8.1 of the MSHCP, pursuant to the No Surprises
Rule, as long as the MSHCP is being properly implemented, the
USFWS will not require from Permittees, Third Parties Granted Take
Authorization, Participating Special Entities or other individuals or
entities receiving Take Authorization under the Permits the commitment
of additional land, or financial compensation or additional restrictions
on the use of land or other natural resources with regard to Covered
Activities and their impact on the Covered Species beyond the level
and/or amounts specified in the MSHCP, the Permits and this
Agreement.
14.11.4 As set forth in Section 6.8.1 of the MSHCP, pursuant to the No Surprises
Rule, the USFWS has the burden of making a finding that Unforeseen
Circumstances exist with regard to any Covered Species, using the best
scientific and commercial data available. The findings must be clearly
documented and based upon reliable technical information regarding the
status and habitat requirements of the affected species. In deciding
whether any Unforeseen Circumstances exist, the USFWS shall
consider, but not be limited to the following factors:
A. The extent of the current range of the Covered Species;
B. The percentage of the range of Covered Species and Habitat that
has been adversely affected by the Covered Activities;
C. The percentage of the range of the Covered Species and Habitat
that has been conserved by the MSHCP;
D. The ecological significance of that portion of the range or Habitat
of the Covered Species;
E. The level of knowledge about the Covered Species and Habitat
and the degree of specificity of the species Conservation
program under the MSHCP; and
F. Whether failure to adopt additional Conservation measures would
appreciably reduce the likelihood of survival and recovery of the
Covered Species in the wild.
14.11.5 In the event the USFWS makes a finding of Unforeseen Circumstances
and such Unforeseen Circumstances warrant the requirement of
additional mitigation, enhancement or compensation measures, any
such additional measures shall be restricted to modification of the
management of the MSHCP Reserve System, and shall be the least
burdensome measures available to address the Unforeseen
Circumstances.
14.11.6 Changed Circumstances, as described in 50 Code of Federal
Regulations section 17.22(b)(5)(i), are adequately addressed in Section
6.8.3 of the MSHCP, and Permittees shall implement any measures for
such circumstances as called for in the MSHCP, as described in Section
11.3 of this Agreement.
14.12 Migratory Bird Treaty Act. The Section 10(a)
Permit shall constitute a Special Purpose Permit under 50 Code of
Federal Regulations section 21.27, for the Take of Covered Species
listed under FESA and which are also listed under the MBTA (16
U.S.C. §§ 703-712), in the amount and/or number specified in the
MSHCP, subject to the terms and conditions specified in the
Section 10(a) Permit. Any such Take will not be in violation of the
MBTA. The MBTA Special Purpose Permit will extend to
Covered Species listed under FESA and also under the MBTA after
the Effective Date of the Section 10(a) Permit. This Special
Purpose Permit shall be valid for a period of three (3) years from
its Effective Date, provided the Section 10(a) Permit remains in
effect for such period. The Special Purpose Permit shall be
renewed pursuant to the requirements of the MBTA, provided the
Permittees remain in compliance with the terms of this Agreement
and the Section 10(a) Permit. Each such renewal shall be valid for
a period of three (3) years, provided that the Section 10(a) Permit
remains in effect for such period.
14.13 Management of Land. USFWS agrees to manage
its land within the MSHCP Reserve System pursuant to the
provisions of the Plan.
15. CDFG OBLIGATIONS AND ASSURANCES
15.1 Issuance of NCCP Permit.
15.1.1 Concurrent with the execution of this Agreement, CDFG has issued an
NCCP Permit to the Permittees authorizing the Take of Covered
47
Species, subject to and in accordance with the MSHCP and this
Agreement.
15.1.2 Except as set forth in Section 15.5 of this Agreement, as to each Covered
Species, including both Listed and Unlisted Species, that Take
Authorization shall become effective upon issuance of the NCCP
Permit.
15.2 NCCP Permit Findings. In separate findings,
CDFG has found, following opportunity for public comment, that
the MSHCP and this Agreement: 1) adequately provide for the
Conservation and management of the Covered Species and their
Habitat within the MSHCP and 2) satisfy all legal requirements
under the NCCP Act necessary for CDFG to issue an NCCP Permit
for such species. CDFG has found that the MSHCP meets the
requirements of the NCCP Act for an NCCP Plan, and has
approved the MSHCP as an NCCP Plan. In separate findings,
CDFG has further found that the MSHCP and this Agreement
adequately provide for the mitigation of potential "significant
effects on the environment" (as defined in California Public
Resources Code section 21068) which may result to Covered
Species and their Habitat from the Covered Activities in the Plan
Area.
15.3 State Assurances. Except for the provisions in
Section 15.5, provided Permittees are implementing the terms and
conditions of the MSHCP, this Agreement and the Permits, if there
are Unforeseen Circumstances, CDFG shall not require additional
land, water or financial compensation or additional restrictions on
the use of land, water or other natural resources for the life of the
NCCP Permit without the consent of the Permittees, unless CDFG
determines that continued implementation of this Agreement, the
MSHCP, and/or the Permits would jeopardize the continued
existence of a Covered Species, or as required by law and would
therefore lead to NCCP Permit revocation or suspension.
The Parties acknowledge that, notwithstanding the assurances provided by this
Section, future modifications to mitigation that are specifically contemplated under the MSHCP
and this Agreement may require adjustments in the mitigation set forth in the MSHCP as of the
Effective Date, including, but not limited to, Take minimization measures and MSHCP Reserve
System management. Such changes are part of the MSHCP's operating Conservation program and
are not precluded by the assurances provided in this Section. In particular, this Section shall not
be construed to diminish the obligation of the Permittees, Third Parties Granted Take
Authorization or Participating Special Entities to undertake mitigation actions in response to
Changed Circumstances and to revise mitigation measures under the Management Program.
However, CDFG acknowledges that neither the Management Program, nor the MSHCP's
provisions concerning Changed Circumstances, are intended to require modifications to the
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MSHCP's mitigation program that would require additional funding nor to impose significant
additional burdens on Permittees, discretionary approvals issued by Permittees, or on Participating
Special Entities with respect to Take minimization measures.
15.4 Implementation Assistance. Subject to Section
27.10 of this Agreement, CDFG shall provide staff to serve on
appropriate committees and shall ensure the availability of staff for
informal discussions and meetings with the other Parties to ensure
that the implementation of this Agreement is consistent with, and
will not render invalid, any findings upon which the NCCP Permit
is based. To the extent consistent with its legal authorities, CDFG
shall cooperate with the Permittees in obtaining additional funding
from sources including, but not limited to, existing and future state
and federal grant programs and existing and future bond issues.
15.5 Fully Protected Species. The following Covered
Species listed in the MSHCP are fully protected under California
Fish and Game Code sections 3511 and 4700: 1) Peninsular
bighorn sheep; 2) Yuma clapper rail; and 3) California black rail.
Take of these species is prohibited under the California Fish and
Game Code except as specifically provided in section 2081.7 of
that Code. Under the NCCP permit, only CVWD is authorized to
Take fully protected species, as described in that permit. Under
Fish and Game Code section 2081.7, CDFG may authorize CVWD
to take Yuma clapper rail and California black rail, if the
requirements of that section are met. CDFG acknowledges and
agrees that if the measures set forth in the MSHCP are fully
complied with, the Covered Activities are not likely to result in
Take of fully protected species, except by CVWD. If CDFG
determines that such measures are not adequate to prevent Take of
one of the Fully Protected Species, CDFG shall notify the CVCC,
USFWS and other affected Permittees in writing of such discovery
and propose new, additional, or different Conservation measures
that it believes are necessary to avoid Take of these species. The
affected Permittees shall implement measures proposed by CDFG
or such other measures agreed to by the Parties as adequate to avoid
Take of Fully Protected Species.
If at any time there is a change in state law such that CDFG may issue a section
2081(b) Permit or Take Authorization under Fish and Game Code section 2835, other permit, or
authorization allowing the Take of any species subject to California Fish and Game Code sections
3511, 4700, 4800, 5050 or 5515, the Permittees may apply for an amendment of the MSHCP and
NCCP Permit or for a new permit for such species. In processing any such application, CDFG
shall give good faith consideration to Take avoidance and mitigation measures already provided
in the MSHCP and shall issue the amendment or Permit under the same terms and conditions as
the existing NCCP Permit, to the extent permitted by law.
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15.6 Changes in the Environmental Laws. It is
acknowledged and agreed by CDFG that the Permittees are
agreeing to perform substantial avoidance, minimization,
mitigation, Conservation and management measures set forth in
this Agreement and the MSHCP. If a change in, or addition to, the
Environmental Laws takes place, CDFG shall give good faith
consideration to the measures required under the MSHCP in
applying the new laws and regulations to the Permittees.
15.7 Consultations by CDFG. Except as otherwise
required by law, CDFG shall not recommend or otherwise seek to
impose through consultation with other public agencies any
mitigation, compensation or habitat enhancement requirements
regarding impacts to Covered Species that exceed the requirements
prescribed in and pursuant to the MSHCP and this Agreement,
including, without limitation, in the form of comments offered by
CDFG in the context of any CEQA process associated with
approvals for Covered Activities with regard to effects on Covered
Species.
15.8 Management of Land. CDFG agrees to manage its
land within the MSHCP Reserve System consistent with the
MSHCP, along with other legal mandates and management
objectives.
16. RELATIONSHIP TO OTHER EXISTING HABITAT CONSERVATION PLANS,
NCCP PERMITS AND SECTION 2081 PERMITS
16.1 General. The Parties acknowledge that there are
Habitat Conservation Plans, biological opinions issued pursuant to
section 7 and section 2081 Permits, currently in existence for
projects in the Coachella Valley and surrounding mountains within
Riverside County. The Parties agree that the MSHCP is not
incompatible with nor does it negate these existing plans and
Permits. Upon request, the Parties may consider consolidation of
these Permits and plans into the MSHCP.
16.2 Coachella Valley Fringe -Toed Lizard Take
Authorization. The Permitees will relinquish the Coachella
Valley Fringe -Toed Lizard ("CVFTL") Section 10(a) Permit
pursuant to 50 CFR 13.26 within six months of issuance of the
MSHCP Section 10(a) Permit, which will allow for final
accounting and completion of other administrative activities under
the CVFTL HCP. Upon relinquishment of the CVFTL permit,
Take Authorization for the CVFTL for Covered Activities will be
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provided pursuant to the MSHCP Section 10(a) Permit. Because
the CVFTL Section 10(a) Permit will no longer exist, the
consistency determination (under Fish and Game Code section
2080.1) which was based on such permit will also terminate. Upon
issuance of the MSHCP Section 10(a) Permit, the current fees
required under the CVFTL HCP will no longer be imposed.
17. THIRD PARTY TAKE AUTHORIZATION
17.1 Authorization. Upon execution of this Agreement
by the Parties and the issuance of the Permits by the Wildlife
Agencies, the Permittees may allow the Take of Covered Species
by landowners, developers, and other private and public entities
undertaking Covered Activities. Such Covered Activities must be
under the direct control of the Permittees in conformance with
approvals granted by the Permittees, or carried out in conformity
with a Certificate of Inclusion or other written mechanism or
instrument, and in compliance with this Agreement, the Permits
and the MSHCP. As set forth in Section 11.1.1 of this Agreement,
Permittees shall include as a part of any discretionary or certain
City ministerial approvals, a Certificate of Inclusion or other
written mechanism, a condition requiring compliance with the
Permits, the MSHCP and this Agreement, that describes the Take
Authorization to be granted pursuant to Section 17.2 of this
Agreement. Such property owners, developers, and private and
public entities shall receive Take Authorization provided they are
in full compliance with all requirements of this Agreement, the
MSHCP, the Permits, the Implementation Mechanism adopted by
Permittees, issued entitlements and all other applicable
requirements.
17.2 Timing of Take Authorization. Authorization of
Take for Third Parties shall occur upon issuance of a grading permit
by a Local Permittee or issuance of a Certificate of Inclusion by the
CVCC or other Local Permittee. Alternatively, as an incentive to
convey property needed for inclusion in the MSHCP Reserve
System and for which monetary compensation will not be provided,
Third Party Take Authorization may be granted upon project
approval and property conveyance. In order to obtain this early
Take Authorization, the conveyance must occur within forty-five
(45) days of project approval. Any subsequent suspension or
revocation of Permits terminating Third Party Take Authorization
will not be applicable to the Take Authorization granted upon the
project's approval, provided the property has been conveyed and all
other mitigation obligations have been satisfied, except where such
Take Authorization will jeopardize a Covered Species listed under
FESA and/or CESA. In this event, the provisions of Section 17.4
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of this Agreement would be triggered. No grading permit or
Certificate of Inclusion shall be issued by a Local Permittee until
all mitigation requirements imposed by the Permittees through the
Implementation Mechanism have been fully satisfied or are
guaranteed to occur within a set time frame as approved by the
Permittee. In the event that such mitigation requirements have not
been satisfied prior to issuance of grading permit or Certificate of
Inclusion, the applicant and the Permittee shall enter into an
agreement setting forth the terms and conditions of MSHCP
compliance and appropriate remedies for non-compliance. The
Take Authorization conferred by the Permittees to the Third Parties
shall be for the length of time, and run concurrently with, the
specific land development approval or other entitlement or
approval granted by the Permittees and the term of the Permits.
17.3 Effect of MSHCP Amendments on Third Parties.
Amendments or other revisions to the MSHCP, subsequent to the
granting of Take to a Third Party by a Permittee, shall not affect
the Take conferred upon a Third Party or the level of compensation
required unless the Third Party, the Wildlife Agencies and the
affected Permittee all agree to such amendments or revisions.
17.4 Effect of Revocation or Suspension of Permits on
Third Parties. In the event that one or both of the Wildlife
Agencies revoke or suspend all or a portion of the Take
Authorization allowed under the Permits, and provided the affected
Permittee continues to carry out its obligations under the MSHCP,
this Agreement and the Permits, the Take Authorization and other
assurances granted to Third Parties Granted Take Authorization by
the Permittees will remain in effect as to each individual Third
Party project that received Take Authorization prior to the
revocation or suspension unless USFWS or CDFG determines that
continuation of the Permits with regard to Take by Third Parties
Granted Take Authorization would likely jeopardize a species
listed under FESA and/or CESA. In this event, the CVCC,
applicable Permittee(s), Third Parties Granted Take Authorization
and Wildlife Agencies, shall meet and confer pursuant to the
provisions in Section 23.6 of this Agreement. If these Parties
cannot reach a mutually satisfactory resolution, the Wildlife
Agencies may revoke or suspend all Take Authorization under the
MSHCP for that listed species. In this event, all Local Permittees,
Third Parties Granted Take Authorization and Participating Special
Entities would be eligible for full or partial refund from the CVCC
or other appropriate Permittees of any mitigation contribution, as
appropriate, except to the extent that Take had already occurred.
The CVCC or other applicable Permittee will issue a notice to all
potentially affected property owners that Take Authorization for
that listed species is no longer valid under the Plan.
17.5 Effect of No Surprises Assurances on Third
Parties. Pursuant to the No Surprises Rule, the Wildlife Agencies
shall not require the commitment of additional land or financial
compensation or other mitigation from the Permittees, and the
Permittees will not require such commitments from a Third Party
pursuant to the Permits, the MSHCP or this Agreement beyond
those measures imposed on the Third Party by the Local Permittee
in accordance with the Permit, the MSHCP and this Agreement,
unless agreed to by the Third Party. The Parties acknowledge that
additional measures may be required for a species that is not a
Covered Species, as described in Section 11.3.5 of this Agreement.
17.6 Retention of Enforcement Authority Over Third
Parties. The Parties reserve the right to enforce all applicable
federal, state, or local laws against persons or entities which engage
in unlawful land development activity without obtaining proper
permits and approvals. The Parties further reserve the right to
enforce all applicable federal, state, or local laws against Third
Parties conducting land development activities within the Plan
Area not in compliance with project approvals pursuant to the
MSHCP. Local Permittees have the obligation to enforce
conditions of project approval as described in Section 13.0 of this
Agreement.
18. COOPERATIVE EFFORT
In order to ensure that the legal requirements set forth in this Agreement are fulfilled, each
of the Parties to this Agreement must perform certain specified tasks as set forth in this Agreement
and the MSHCP. The MSHCP and this Agreement thus describe a cooperative effort by federal,
state and local agencies to implement a program of Conservation for the Covered Species.
Additionally, the Parties shall work cooperatively to enter into appropriate Memoranda of
Understanding or other appropriate agreements with any non -Party managing land within the
MSHCP Reserve System to manage lands in conformance and compliance with the MSHCP. A
draft Model Memorandum of Understanding is attached hereto as Exhibit "F."
19. TERM
19.1 Effective Date. This Agreement shall be effective
upon issuance of the Permits. Any Permittee executing this
Agreement after the Effective Date shall, upon execution, become
a Party to this Agreement, with all the rights and obligations of
Parties defined herein, and this Agreement shall be enforceable
53
between each later executing Permittee and all prior signing
Parties.
19.2 Term of the Agreement. This Agreement shall run
for a term of seventy-five (75) years from the Effective Date, unless
terminated in accordance with Section 21 of this Agreement or
unless extended by agreement of all of the Parties hereto.
19.3 Term of the Permits. The Permits shall run for a
term of seventy-five (75) years from the Effective Date unless
terminated as provided in this Agreement, provided the
requirements of Section 11.1 of this Agreement have been met.
This term was selected as reasonable due to the scope and breadth
of the Plan, the need to establish an adequate endowment to manage
and monitor the MSHCP Reserve System and the projected growth
and planned infrastructure within the Plan Area.
19.4 Extension of the Permit. Upon agreement of the
Parties and in compliance with all applicable laws, the Wildlife
Agencies may, with respect to the Permits under their respective
jurisdiction, extend the Permits beyond their initial terms under the
applicable regulations in force on the date of such extension. If
Permittees desire to extend the Permits, they will so notify the
Wildlife Agencies at least twelve (12) months before the then -
current term is scheduled to expire and submit an application to
renew the Permits. Extension of the Permits constitutes extension
of the MSHCP and this Agreement for the same amount of time,
subject to any modifications agreed to by the Parties at the time of
extension.
19.5 Permanent Preservation. Notwithstanding the
stated term as herein set forth, the Parties agree and recognize that
once Take of a Covered Species and/or their habitat modified
within the Plan Area, such Take and habitat modification will be
permanent. The Parties therefore agree that obligations regarding
the preservation and maintenance of the habitat provided for under
the Permits, the MSHCP and this Agreement is likewise intended
to be permanent and to extend beyond the term of this Agreement.
20. MODIFICATIONS AND AMENDMENTS TO THE MSHCP
20.1 Clerical Changes. Clerical changes to the MSHCP
shall be made by the CVCC on its own initiative or in response to
a written request submitted by any Permittee or Wildlife Agency,
which includes documentation supporting the proposed clerical
change. Clerical changes shall not require any amendment to the
MSHCP, the Permits or this Agreement. Clerical changes include
54
corrections of typographical, grammatical, and similar editing
errors that do not change the intended meaning as well as
corrections of any maps or exhibits to correct insignificant errors in
mapping. The Parties anticipate that most clerical changes to the
MSHCP will occur during the first ten (10) years of the Permits.
Annual reports shall include a summary of clerical changes made
to the MSHCP in the preceding calendar year.
20.2 Land Use Changes. The Parties agree that the
adoption and amendment of general plans, specific plans,
community plans, zoning ordinances and similar land use
ordinances, and the granting of implementing land use entitlements
by the County and the Cities are matters within the sole discretion
of the County and Cities and shall not require amendments to this
Agreement or the approval of other Parties to this Agreement.
However, the Parties agree that: 1) no such action by the County or
the Cities shall in any way alter or diminish their obligations under
this Agreement, the MSHCP, or the Permits, and 2) approval of
certain projects may lead to revocation or suspension of the Permits
pursuant to Section 23.5 of this Agreement.
20.3 Adaptive Management Changes. Except as
otherwise provided, changes to avoidance measures, minimization,
mitigation, compensation and MSHCP Reserve System
management strategies developed through and consistent with the
Management Program described in Section 8.0 of the MSHCP shall
not require any amendment to the MSHCP, this Agreement or the
Permits.
20.4 Minor Amendments. Minor Amendments are
amendments to the MSHCP of a minor or technical nature where
the effect on Covered Species, levels of Take and Permittees'
ability to implement the MSHCP are not significantly different than
those described in the MSHCP as originally adopted. Minor
Amendments to the MSHCP shall not require amendments to this
Agreement or the Permits.
20.4.1 List of Minor Amendments. As set forth in Section 6.12.3 of the MSHCP,
the following are contemplated as Minor Amendments to the MSHCP and
therefore, will be administratively implemented pursuant to the procedures
below. Minor Amendments processed pursuant to this subsection are
limited to those listed in Sections 20.4.2 and 20.4.3 of this Agreement.
20.4.2 Minor Amendments not Requiring Wildlife Agencies Concurrence.
A. Minor corrections to land ownership;
B. Adjustment of land ownership and Conservation acreages in the
Santa Rosa and San Jacinto Mountains Conservation Area upon
completion of a land exchange between the Agua Caliente Band
of Cahuilla Indians and BLM, as discussed in Section 4.2.1.1 of
the Final MSHCP;
C. Minor revisions to survey, monitoring, reporting and/or
management protocols that clearly do not affect Covered Species
or overall MSHCP Reserve System functions and values;
D. Application of Take Authorization to Development within cities
incorporated within the MSHCP boundaries after the Effective
Date of this Agreement, pursuant to Section 11.5 of this
Agreement, provided such inclusion does not preclude Reserve
Assembly, significantly increase the cost of MSHCP Reserve
System Assembly or management or preclude achieving
Conservation Area Conservation Objectives or Species
Conservation Goals;
E. Annexation or deannexation of property within the Plan Area
pursuant to Section 11.4 of this Agreement, provided such
inclusion does not preclude Reserve Assembly, significantly
increase the cost of MSHCP Additional Conservation Lands
management or assembly, or preclude achieving Conservation
Area Conservation Objectives or Species Conservation Goals;
F. Updates/corrections to the natural communities map and/or
species occurrence data; and
G. Changes to the RMU boundaries.
20.4.3 Minor Amendments Requiring Wildlife Agencies Concurrence.
A. Conservation Area boundary adjustments as set forth in Section
6.12.2 of the MSHCP.
B. Construction and operation of CVWD water recharge and storage
and other water related facilities as set forth in Section 7.3 of the
MSHCP.
C. Modifications of the alignment of the Palm Desert to La Quinta
Connector Trail from the alignment in the Trails Plan in the Final
MSHCP.
D. Transfer of Conservation Objectives for conserved natural
communities and/or identified Covered Species between
Conservation Areas or between Recovery Zones in the Santa Rosa
and San Jacinto Mountains Conservation Area may occur if the
following is demonstrated:
1. The transfer does not reduce the number of acres anticipated
by the Plan of the natural community or the species' habitat
conserved.
2. The transfer does not reduce the Conservation value of the
lands that will be conserved based on natural community
patch size, configuration, and juxtaposition within the matrix
of Conserved Habitat and is of greater or equal habitat value.
3. There is no reduction in Conservation and no increase in
Take.
4. Transfers must be within kind (for a Covered Species or
natural community). Any shifts must be species-specific and
meet the above criteria.
E. Changes to the list of exotic species in Table 4-112 of the MSHCP.
F. Future proposals for new trails on Reserve Lands in the Santa Rosa
and San Jacinto Mountains Conservation Area, other than the
identified new trails (including perimeter trails).
G. Construction of the Morongo Wash Flood Control Facility as
described in Section 7.3.1.
20.4.4 Procedure. Any Party may propose Minor Amendments to the MSHCP or
this Agreement by providing written notice to all other affected Parties.
Such notice shall include a description of the proposed Minor Amendment,
an explanation of the reason for the proposed Minor Amendment, an
analysis of its environmental effects including any impacts to the
Conservation of Covered Species and a description of why that Party
believes the effects of the proposed Minor Amendment: 1) are not
significantly different from, and are biologically equivalent to, the terms in
the MSHCP as originally adopted; 2) substantially conform to the terms in
the MSHCP as originally adopted; and 3) will not significantly reduce the
ability to acquire the Additional Conservation Lands. The Wildlife
Agencies and affected parties shall submit any comments on the proposed
Minor Amendment in writing within sixty (60) days of receipt of such
notice. Any Party can institute the informal meet and confer process set
forth in Section 23.6 of this Agreement to resolve disagreements concerning
Minor Amendments.
For the minor amendments requiring Wildlife Agencies' concurrence, any
non -concurrence must occur within sixty (60) days of receipt of the written
notice as referenced above. If the Wildlife Agencies concur or if they fail
57
to respond within the sixty (60) days period, the Minor Amendment may
be approved. If the Wildlife Agencies do not concur with the analysis
supporting the Minor Amendment in writing within the 60 -day period, the
project will be subject to a Major Amendment.
20.5 Major Amendments. Major Amendments are
those proposed changes to the MSHCP and the Permits that are not
clerical or Minor Amendments. Major Amendments to the
MSHCP shall require a subsequent amendment to this Agreement
and the Permits, and public notice as required by applicable laws
and regulations. The CVCC shall submit any proposed Major
Amendments to the Wildlife Agencies.
20.5.1 List of Major Amendments. Major Amendments include, but are not
limited to, any of the following:
A. All amendments not contemplated in this Agreement as clerical or
Minor Amendments to the MSHCP, except subsequent minor
changes which are not specifically listed as a Minor Amendment
in this Agreement that the Wildlife Agencies have determined to
be insubstantial and appropriate for implementation as a Minor
Amendment;
B. Changes to the boundary of the Plan Area;
C. Addition of species to the Covered Species list; and
D. Changes in anticipated Reserve Assembly or funding strategies
and schedules that would have substantial adverse effects on the
Covered Species.
20.5.2 Procedure. Major Amendments shall be processed as set forth in Section
6.12.4 of the MSHCP and require the same process followed for the original
MSHCP approval. A Major Amendment will require an amendment to the
MSHCP and this Agreement addressing the new circumstances, subsequent
publication and public notification, CEQA/NEPA compliance and intra -
Service section 7 Consultation, if one is deemed necessary. Major
Amendments shall be subject to review and approval by the CVCC and
other Permittees as appropriate, at a noticed public hearing. The Wildlife
Agencies will use reasonable efforts to process proposed Major
Amendments within one hundred twenty (120) days after publication in the
Federal Register of the proposed Major Amendment.
20.6 Like Exchanges in Conservation Areas. Like
exchanges in Conservation Areas may be implemented pursuant to
Section 6.12.2 of the MSHCP.
21. TERMINATION OF PERMITS
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21.1 Termination in General. The Permittees may
unanimously elect to terminate the MSHCP and the Permits. In
order to terminate, the CVCC shall make written findings at a
noticed public hearing that further compliance with this
Agreement, and implementation of the MSHCP, are either not
feasible or no longer in the best interest of the County, the Cities
and the other Permittees. Termination by the Permittees shall not
be effective until sixty (60) days after the CVCC has provided
written notice to the Wildlife Agencies of the adoption of
termination findings.
21.2 Continuing Obligations. In the event of
termination, consistent with the requirements of 50 Code of Federal
Regulations sections 17.32(b)(7) and 17.22(b)(7), the Permittees
will remain obligated to fulfill any existing and outstanding
minimization and mitigation measures required under the terms of
the Permits for Take that occurs prior to such termination and such
minimization and mitigation measures as may be required pursuant
to the terms of this Agreement and the MSHCP. With the consent
of the Wildlife Agencies, the CVCC may transfer its obligations to
a professional land manager approved by the Wildlife Agencies or
to the Wildlife Agencies directly, or to another appropriate entity
and/or entities acceptable to the Wildlife Agencies.
All Local Development Mitigation Fees that have been collected and held by the
CVCC, the County and the Cities shall be placed in an interest bearing account governed by the
CVCC, and shall be transferred to a professional land manager, the Wildlife Agencies directly, or
other appropriate entity and/or entities acceptable to the Wildlife Agencies.
21.3 Final Accounting. At the time of termination, the
CVCC shall provide to the Wildlife Agencies a final accounting of
management activities and monitoring information. Such final
accounting shall include, at a minimum, all of the information
contained in the Annual Report described in Section 6.4 of the
MSHCP and all outstanding obligations for future actions
regarding implementation of the MSHCP. The final accounting
shall specify the Permittees' specific responsibilities and time
frames for carrying out such obligations to ensure Rough Step
requirements are met by the Permittees.
21.4 Dissolution of the CVCC. In the event the CVCC
disbands or is otherwise dissolved at the time of termination, the
CVCC's obligations under this Agreement shall be carried out by
the County or other appropriate entity and/or entities acceptable to
the Wildlife Agencies.
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22. WITHDRAWAL OF PERMITTEE(S)
22.1 Withdrawal in General. A Permittee may
terminate its participation in the MSHCP and abandon its Take
Authorization set forth in the Permits by notifying the Parties
hereto in writing of its intent to terminate its participation. Any
Permittee that elects to terminate participation in the MSHCP shall
provide at least ninety (90) days written notice to all Parties. Prior
to any such termination, the Permittee shall provide to the CVCC a
final accounting of any information gathered by the Permittee with
respect to implementation of the MSHCP, and shall transfer to the
CVCC any Local Development Mitigation Fees or other funds
related to the MSHCP that have been collected.
22.2 Mitigation Responsibilities. Consistent with the
requirements of 50 Code of Federal Regulations sections
17.32(b)(7) and 17.22(b)(7), the withdrawing Permittee remains
responsible for any existing and outstanding minimization and
mitigation measures required under the terms of the Permits for
Take that occurs prior to such withdrawal, and such minimization
and mitigation measures as may be required pursuant to the terms
of this Agreement and the MSHCP.
22.3 Termination of Permittee Take Authorization.
Termination of participation by any Permittee will automatically
terminate Take Authorization for Covered Activities within that
Permittee's jurisdiction. However, for those Covered Activities
within that Permittee's jurisdiction that have been issued a grading
permit or, if a grading permit is not required, have commenced
grading activities or have been issued a Certificate of Inclusion
prior to the notification or the Permittee's formal decision to
terminate, Take Authorization shall continue under the remaining
Permits provided all relevant obligations have been met pursuant
to the MSHCP, this Agreement and the Permittee's land use
entitlements. In this event, the withdrawing Permittee may elect to
continue enforcement of the Plan for the Covered Activities.
Otherwise, the CVCC or other appropriate remaining Permittee
shall enter into a Certificate of Inclusion or other written
mechanism or instrument with the Third Party Granted Take
Authorization or Participating Special Entity. The Certificate of
Inclusion or other written mechanism shall be automatically issued
provided the applicable Parties are in compliance with the MSHCP,
this Agreement and the Permits.
22.4 Evaluation of Remaining Permits. In the event of
termination by any Permittee, the CVCC shall meet and confer with
the Wildlife Agencies to determine to what extent, if any, Take
60
Authorization may continue to be provided to the remaining
Permittees. In making this determination, the Wildlife Agencies
shall evaluate the benefits to Covered Species resulting from the
participation of the remaining Permittees, the extent to which the
withdrawing Permittee has outstanding obligations for compliance
with Take minimization and mitigation measures, an evaluation of
whether the Permits continue to meet issuance criteria pursuant to
FESA and the NCCP Act, and any other relevant information. Such
evaluation shall include an analysis of the viability of the MSHCP
Reserve System without the participation of the Permittee,
including whether adequate funding will be available to implement
the terms of the MSHCP.
23. REMEDIES AND ENFORCEMENT
23.1 Remedies in General. Except as set forth below,
each Party shall have all remedies otherwise available to enforce
the terms of the MSHCP, this Agreement and the Permits, and to
seek remedies for any breach hereof, subject to the following
limitations:
23.1.1 No Monetary Damages. No Party shall be liable in money damages to
any other Party or any other person for any breach of this Agreement,
any performance or failure to perform a mandatory or discretionary
obligation imposed by this Agreement or any other cause of action
arising from this Agreement. Notwithstanding the foregoing:
A. All Parties shall retain whatever liability they would possess for
their present and future acts, or failure to act, without existence
of this Agreement.
B. All Parties shall retain whatever liability they possess as an owner
of interests in land.
C. Nothing contained in this Agreement is intended to limit the
authority of the United States government or the government of
the State of California to seek civil or criminal penalties or
otherwise fulfill its/their enforcement responsibilities under
FESA, CESA, the NCCP Act, or other applicable law.
23.2 Default. Any material breach or violation of this
Agreement, the MSHCP, or the Permits shall be deemed a default
under this Agreement.
23.2.1 Notice and Opportunity to Cure Default. If any Party determines that
one of the other Parties is in violation of the terms of this Agreement, or
that a violation is threatened, that Party shall give written notice to the
violating Party of such violation and demand in writing the cure of such
61
violation. If the violating Party fails to cure the violation within forty-
five (45) days after receipt of said written notice and demand from the
notifying Party, or said cure reasonably requires more than forty-five
(45) days to complete and the violating Party fails to begin the cure
within the forty-five (45) day period or fails to continue diligently to
complete the cure, the notifying Party may bring an action at law or in
equity in a court of competent jurisdiction to: 1) enforce compliance by
the defaulting Party with the terms of this Agreement, 2) recover actual
damages to which the notifying Party may be entitled for violation by
the defaulting Party of the terms of this Agreement subject to the
limitations stated in Section 23.1 above, and/or 3) enjoin the violation,
ex parte as necessary, by temporary or permanent injunction without the
necessity of proving either actual damages or the inadequacy of
otherwise available legal remedies, or for other equitable relief. The
notifying Party may apply any damages recovered to the cost of
undertaking any corrective action.
23.3 Injunctive and Temporary Relief. The Parties
acknowledge that the Covered Species are unique and that their loss
as species would result in irreparable damage to the environment
and therefore injunctive and temporary relief may be appropriate to
ensure compliance with the terms of this Agreement.
23.4 Limitation and Extent of Enforceability. Except
as otherwise specifically provided herein, nothing in this
Agreement shall be deemed to restrict the rights of the Permittees
to the use of those lands, or interest in lands, constituting the Plan
Area, provided that nothing in this Agreement shall absolve the
Permittees from such other limitations as may apply to such lands,
or interest in lands, under other laws or regulations of the United
States, the State of California, or any local agency with jurisdiction
over those lands.
23.5 Revocation or Suspension of the Permits. The
Wildlife Agencies shall have the right to revoke or suspend all or
portions of the Permits, in accordance with the laws and regulations
in force at the time of such revocation or suspension. Such action
may also be triggered by: 1) failure of a Permittee to implement the
Implementation Mechanisms adopted by that agency; 2) approval
of a proposed Development or public project that significantly
compromises the viability of the MSHCP Reserve System; 3)
failure to comply with Rough Step requirements set forth in Section
6.5 of the MSHCP; and/or 4) withdrawal of a Permittee. Such
suspension or revocation may apply to the entire applicable Permit,
or only to a portion such as specified Conservation Area, specified
Covered Species, or specified Covered Activities. Such action may
also be triggered if the Wildlife Agencies determine that land
62
within the Conservation Areas is annexed to a non -participating
public agency and thus, development of such land could
significantly compromise the viability of the MSHCP Reserve
System.
Except as otherwise required by law, prior to taking action to revoke or suspend the
Permits, the Wildlife Agencies, as applicable, shall: 1) provide thirty (30) day prior written
notification to the relevant Permittee(s) and the CVCC of the proposed revocation or suspension,
and 2) meet and confer with the relevant Permittee(s) and the CVCC to attempt to avoid the need
to revoke or suspend all or a portion of the Permits. The Parties may rely upon the informal meet
and confer process set forth in Section 23.6 of this Agreement for disputes concerning potential
Permit revocation or suspension.
If the Permits are suspended or revoked, Permittees shall not have the authority to
rely upon the Permits to approve or carry out any actions which would violate FESA or CESA in
the absence of such Permits. In the event of suspension or revocation of the Permits, Permittees'
obligations under this Agreement and the MSHCP to carry out all of their responsibilities under
the MSHCP, the Permits and this Agreement arising from any Covered Activity approved,
authorized or carried out by the Permittees between the Effective Date of the Agreement and the
date the Permits are revoked or suspended will continue until the USFWS and/or the CDFG
determines that all Take of Covered Species that occurred under the Permits has been addressed
pursuant to the terms of the Permits. Provided the suspension or revocation is not the result of the
Permittee(s)' failure to properly implement the MSHCP, no additional mitigation beyond that
contemplated in the MSHCP and this Agreement will be required. As to any Covered Activity of
a Third Party that is approved or authorized by a Local Permittee and for which Take is authorized
prior to the suspension or revocation or for Caltrans Covered Activities for which mitigation has
already been contributed, so long as the Local Permittee and Third Party continue to fulfill their
obligations under the Permits, the Take Authorization shall continue in effect for that project until
completion pursuant to Section 23.7 of this Agreement, except where such Take Authorization
will jeopardize a Species listed under FESA or CESA.
23.6 Informal Meet and Confer Process for Disputes
Concerning Covered Activities, State Streambed Alteration
Agreements, Federal 404 Permits, and ESA Section 7
Consistency Consultation. Concerning Covered Activities, state
streambed alteration agreements, federal 404 permits, and section
7 consistency consultations, the Parties agree to work together in
good faith to resolve disagreements using the informal dispute
resolution procedures set forth in this Section, or such other
procedures upon which the Parties may later agree. However, if at
any time a Party determines that circumstances so warrant, such
Party may seek any available remedy without waiting to complete
this informal meet and confer process.
Unless the Parties agree upon another dispute resolution process, or unless the
CDFG or the USFWS has initiated administrative proceedings or litigation in federal or state court,
the Parties may use the following process to attempt to resolve disputes concerning Covered
63
Activities, state streambed alteration agreements, federal 404 permits, and ESA section 7
consistency consultations:
A. The CDFG and/or the USFWS will notify the CVCC in writing of:
1. disagreements they may have with the impact of a proposed Covered
Activity on a covered species,
2. the basis for CDFG's and/or USFWS's contention that the MSHCP
lacks certain identified measures necessary to the continued
existence of the identified species, or that the MSHCP contains
measures that may be detrimental to the continued existence of the
impacted Covered Species.
3. the basis for contending that the proposed Covered Activity is not
consistent with the MSHCP and the Permits.
4. concerns they may have regarding the issuance of a state streambed
alteration agreement, a federal 404 permit, or a section 7 consistency
determination.
B. The CVCC, in coordination with the project applicant(s), will have sixty
(60) days, or such other time as may be agreed upon, to respond. During
this time, the CVCC, in coordination with the project applicant(s), may seek
clarification of the information provided in the initial notice. The CDFG
and/or the USFWS will use reasonable efforts to provide all information
available to them that may be responsive to such inquiries.
C. Within sixty (60) days after such response was provided or was due,
representatives of the Parties (and the project applicant(s) if the project
applicant(s) so chooses) having authority to resolve the dispute will meet
and negotiate in good faith toward a mutually satisfactory solution.
D. If any disagreement cannot be resolved through such negotiations, the
Parties will consider other alternative dispute resolution processes and, if a
dispute resolution process is agreed upon, will make good faith efforts to
resolve those remaining disagreements through that process.
23.7 Continuation Of Take Authorization after
Revocation, Suspension or Permittee Withdrawal. In the event
of revocation or suspension of the Permits pursuant to Section 23.5
of this Agreement or withdrawal of a Permittee pursuant to Section
22 of this Agreement, any Third Party Granted Take Authorization
or Participating Special Entity who is in compliance with the terms
and conditions of the MSHCP, this Agreement and the Permits can
automatically continue to receive Take Authorization from the
CVCC or other remaining Permittee upon execution of a Certificate
of Inclusion or other written mechanism or instrument issued by
64
the CVCC or other remaining Permittee, except as otherwise
required by law.
24. FORCE MAJEURE
In the event that the Permittees are wholly or partially prevented from performing
obligations under this Agreement because of unforeseeable causes beyond the reasonable control
of and without the fault or negligence of the Permittees ("Force Majeure"), including, but not
limited to, acts of God, labor disputes, sudden actions of the elements, or actions of non-
participating federal or state agencies or local jurisdictions, the Permittees shall be excused from
whatever performance is affected by such unforeseeable cause to the extent so affected, and such
failure to perform shall not be considered a material violation or breach, provided that nothing in
this Section shall be deemed to authorize any Party to violate FESA, CESA or the NCCP Act, and
provided further that:
A. The suspension of performance is of no greater scope and no longer duration
than is required by the Force Majeure;
B. Within fifteen (15) days after the occurrence of the Force Majeure, affected
Permittees shall give the Wildlife Agencies written notice describing the
particulars of the occurrence;
C. Permittees shall use their best efforts to remedy their inability to perform
(however, this paragraph shall not require the settlement of any strike, walk-
out, lock -out or other labor dispute on terms which in the sole judgment of
the Permittees are contrary to their interest); and
D. When Permittees are able to resume performance of their obligations, the
affected Permittees shall give the Wildlife Agencies written notice to that
effect.
25. LEGAL AUTHORITY OF THE USFWS
The USFWS enters into this Agreement pursuant to FESA, the Fish and Wildlife
Coordination Act (16 U.S.C. sections 661-666(c)), and the Fish and Wildlife Act of 1956 (16
U.S.C. sections 742(b) et seq.). Section 10(a)(1)(B) of FESA expressly authorizes the USFWS to
issue a Section 10(a) Permit to allow the Incidental Take of animal species listed as threatened or
endangered under FESA. The legislative history of section 10(a)(1)(B) clearly indicates that
Congress also contemplated that the USFWS would approve a habitat conservation plan that
protects Unlisted Species as if they were listed under FESA, and that in doing so, the USFWS
would provide assurances for such Unlisted Species. The USFWS routinely approves habitat
conservation plans that address both listed and unlisted Species.
65
26. LEGAL AUTHORITY OF THE CDFG
CDFG enters into this Agreement pursuant to its separate and independent authority under
the NCCP Act (California Fish and Game Code sections 2800 et seq.). CDFG may authorize the
Take of Covered Species, other than fully protected species, pursuant to California Fish and Game
Code section 2835.
27. MISCELLANEOUS PROVISIONS
27.1 Response Times. The Parties agree that time is of
the essence in performance of the obligations of this Agreement.
Except as otherwise set forth herein or as statutorily required by
CEQA, NEPA, CESA, FESA, the NCCP Act or any other laws or
regulations, the Wildlife Agencies and the Permittees shall use
reasonable efforts to respond to written requests within a forty-five
(45) day time period.
27.2 No Partnership. Except as otherwise expressly set
forth herein, neither this Agreement nor the MSHCP shall make, or
be deemed to make, any Party to this Agreement the agent for, or
the partner or joint venturer of, any other Party.
27.3 Nullification of Agreement. In the event that the
Permits are not issued, this Agreement shall be null and void and
no Party shall be bound by its terms.
27.4 Notices. Any notice permitted or required by this
Agreement shall be in writing, delivered personally, by overnight
mail, or by United States mail, certified and postage prepaid, return
receipt requested to the persons listed below and addressed as
follows, or at such other address as any Party may from time to time
specify to the other Parties in writing. Notices may be delivered by
facsimile or other electronic means, provided that they are also
delivered personally or by overnight or certified mail. Notices shall
be transmitted so that they are received within the specified
deadlines. Notice delivered via certified mail, return receipt
requested, shall be deemed given five (5) days after deposit in the
United States mail. Notices delivered personally shall be deemed
given on the date they are delivered. Notices delivered via
overnight delivery shall be deemed given on the next business day
after deposit with the overnight mail delivery service. The CVCC
shall maintain a list of individuals responsible for ensuring Plan
compliance for each of the Parties which may change. The
following are the individuals currently responsible for ensuring
Plan compliance:
66
Executive Director
Coachella Valley Conservation Commission
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
Executive Director
Coachella Valley Association of Governments
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
Executive Director
Coachella Valley Mountains Conservancy
73-710 Fred Waring Drive, Suite 205
Palm Desert, CA 92260
Telephone: 909-790-3405
Telefax: 909-790-7596
District Director
District 8
California Department of Transportation
464 West 4th Street
San Bernardino, California 92401-1400
Telephone: 909-383-4561
Telefax: 909-383-6899
Deputy Director
Habitat Conservation Division
California Department of Fish and Wildlife
1416 Ninth Street, 13th Floor
Sacramento, California 95814
Telephone: 916-653-1070
Telefax: 916-653-3673
Regional Manager
Eastern Sierra and Inland Deserts Region
California Department of Fish and Wildlife
4665 Lampson Ave. Suite J
Los Alamitos, California 90720
Telephone: 562-430-7212
Telefax: 562-799-8427
67
City Manager
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Telephone: 760-770-0340
Telefax: 760-770-0399
City Manager
City of Coachella
1515 6th Street
Coachella, California 92236
Telephone: 760-398-3502
Telefax: 760-398-8117
City Manager
City of Desert Hot Springs
65-950 Pierson Blvd
Desert Hot Springs, Califonia 92240
Telephone: 760-329-6411
Telefax: 760-288-3129
City Manager
City of Indian Wells
44-950 Eldorado Drive
Indian Wells, California 92210
Telephone: 760-346-2489
Telefax: 760-346-0407
City Manager
City of Indio
100 Civic Center Mall
Indio, California 92201
Telephone: 760-342-6500
Telefax: 760-342-6556
City Manager
City of La Quinta
78-495 Calle Tampico
La Quinta, California 92253
Telephone: 760-777-7025
Telefax: 760-777-7107
City Manager
City of Palm Desert
73-510 Fred Waring Drive
68
Palm Desert, California 92260
Telephone: 760-346-0611
Telefax: 760-340-0574
City Manager
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92263
Telephone: 760-323-8201
Telefax: 760-323-8207
City Manager
City of Rancho Mirage
69-825 Highway 111
Rancho Mirage, California 92270
Telephone: 760-324-4511
Telefax: 760-324-8830
General Manager
Coachella Valley Water District
85995 Avenue 52
Coachella, California 92236
Telephone: 760-398-2651
Telefax: 760-398-3711
General Manager
Imperial Irrigation District
333 East Barioni Boulevard
Imperial, California 92251
Telephone: 760-339-9219
Telefax: 760-339-9392
General Manager
Mission Springs Water District
66575 Second Street
Desert Hot Springs, CA 92240
Telephone: 760-329-6448
Telefax: 760-339-9392
Chief Executive Officer
County of Riverside
County Administrative Center
69
P.O. Box 1605
Riverside, California 92502-1605
Telephone: 951-955-1100
Telefax: 951-955-1105
General Manager/Chief Engineer
Riverside County Flood Control
and Water Conservation District
1995 Market Street
Riverside, California 92501
Telephone: 951-955-1200
Telefax: 951-788-9965
General Manager
Riverside County Regional Park and Open Space District
4600 Crestmore Road
Riverside, California 92519-3507
Telephone: 951-955-4310
Telefax: 951-955-4305
Chief Executive Officer
Riverside County Waste Resources Management District
14310 Frederick Street
Moreno Valley, California 92553
Telephone: 951-486-3200
Telefax: 951-486-3205
Deputy Operations Manager
United States Fish and Wildlife Service
California/Nevada Operations Office
2800 Cottage Way, Room W-2606
Sacramento, California 95825-1846
Telephone: 916-414-6464
Telefax: 916-414-6486
In addition to the above list, the following individuals will also be provided all notices as set
forth in this Section:
Chair
Coachella Valley Conservation Commission
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
70
Chair
Coachella Valley Association of Governments
73-710 Fred Waring Drive, Suite 200
Palm Desert, California 92260
Telephone: 760-346-1127
Telefax: 760-340-5949
Director
California Department of Parks
and Recreation
1416 Ninth Street, Room 1405
Sacramento, CA 95814
Telephone: 916-653-8380
Telefax: 916-657-3909
Board of Supervisors
County of Riverside
P.O. Box 1605
4080 Lemon Street, 5th Floor
Riverside, California 92502-1605
Telephone: 951-955-1050
Telefax: 951-955-1071
Mayor
City of Cathedral City
68-700 Avenida Lalo Guerrero
Cathedral City, California 92234
Telephone: 760-770-0340
Telefax: 760-202-1470
Mayor
City of Coachella
1515 6th Street
Coachella, California 92236
Telephone: 760-398-3502
Telefax: 760-398-8117
Mayor
City of Desert Hot Springs
65-950 Pierson Blvd
Desert Hot Springs, California 92240
Telephone: 760-329-6411
Telefax: 760-288-3129
Mayor
City of Indian Wells
71
44-950 Eldorado Drive
Indian Wells, California 92210
Telephone: 760-346-2489
Telefax: 760-346-0407
Mayor
City of Indio
100 Civic Center Mall
Indio, California 92201
Telephone: 760-863-5437
Telefax: 760-342-6597
Mayor
City of La Quinta
78-495 Calle Tampico
La Quinta, California
Telephone: 760-777-7025
Telefax: 760-777-7107
Mayor
City of Palm Desert
73-510 Fred Waring Drive
Palm Desert, California 92260
Telephone: 760-346-0611
Telefax: 760-340-0574
Mayor
City of Palm Springs
3200 E. Tahquitz Canyon Way
Palm Springs, California 92263
Telephone: 760-323-8204
Telefax: 760-323-8332
Mayor
City of Rancho Mirage
69-825 Highway 111
Rancho Mirage, California 92270
Telephone: 760-324-4511
Telefax: 760-324-8830
Field Supervisor
United States Fish and Wildlife Service
6010 Hidden Valley Road
72
Carlsbad, California 92009
Telephone: 760-431-9440
Telefax: 760- 431-9618
County Counsel
County of Riverside
3535 10th Street
Riverside, California 92501-3624
Telephone: 951-955-6301
Telefax: 951-955-6363
General Counsel
Office of the General Counsel
California Department of Fish and Wildlife
1416 Ninth Street, 12th Floor
Sacramento, California 95814
Telephone: 916-654-3821
Telefax: 916-654-3805
27.5 Entire Agreement. This Agreement, together with
the MSHCP and the Permits, constitutes the entire Agreement
among the Parties. This Agreement supersedes any and all other
agreements, either oral or in writing, among the Parties with respect
to the subject matter hereof and contains all of the covenants and
agreements among them with respect to said matters, and each
Party acknowledges that no representation, inducement, promise of
agreement, oral or otherwise, has been made by any other Party or
anyone acting on behalf of any other Party that is not embodied
herein. This Agreement shall not be construed as if it had been
prepared by any one Party, but rather as if all Parties had prepared
the Agreement.
27.6 Assignment or Transfer. This Agreement and
each of its covenants and conditions shall be binding on and inure
to the benefit of the Parties and their respective successors and
assigns. Assignment or other transfer of the Permits shall be
governed by the Wildlife Agencies regulations in force at the time.
27.7 Defense. Upon request, the CDFG will, to the
extent authorized by California law, provide appropriate support to
the Permittees in defending, consistent with the terms of the
MSHCP, lawsuits arising out of the Permittees' adoption of the
MSHCP and/or this Agreement.
27.8 Attorneys' Fees. If any action at law or equity,
including any action for declaratory relief is brought to enforce or
interpret the provisions of this Agreement, each Party to the
litigation shall bear its own attorneys' fees and costs, provided that
attorneys' fees and costs recoverable against the United States shall
be governed by applicable federal law.
27.9 Elected Officials Not to Benefit. No member of,
or delegate to, the California State Legislature, the United States
Congress, the Riverside County Board of Supervisors, or City
Council of the Permittees shall be entitled to any share or part of
this Agreement or to any benefit that may arise from it.
27.10 Availability of Funds. Implementation of this
Agreement and the MSHCP by the USFWS is 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 United States Treasury. The
Parties acknowledge and agree 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.
Implementation of this Agreement and the MSHCP by the CDFG is subject to the
availability of appropriated funds. Nothing in this Agreement shall 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 and agree that the CDFG shall not be required under this
Agreement to expend any State appropriated funds unless and until an authorized official of that
agency affirmatively acts to commit such expenditure as evidenced in writing.
Implementation of this Agreement and the MSHCP by the CVCC, the County and
the Cities 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 general funds of the County or Cities unless expressly authorized by the County Board of
Supervisors and/or appropriate City Councils. The obligations of the County, County Parks,
County Waste, County Flood Control, CVWD, IID, and MSWD are limited to those specifically
set forth in the MSHCP, the Permits and this Agreement.
Implementation of this Agreement and the MSHCP by Caltrans is subject to the
availability of appropriated funds. Nothing in this Agreement shall 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 and agree that Caltrans shall not be required under this
74
Agreement to expend any State appropriated funds unless and until an authorized official of that
agency affirmatively acts to commit such expenditure as evidenced in writing.
27.11 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the
United States and the State of California, as applicable.
27.12 Duplicate Originals. This Agreement may be
executed in any number of duplicate originals. A complete original
of this Agreement shall be maintained in the official records of each
of the Parties hereto.
27.13 Relationship to the FESA, CESA, NCCP Act and
Other Authorities. The terms of this Agreement are consistent
with and shall be governed by and construed in accordance with
FESA, CESA, the NCCP Act and other applicable state and federal
law. In particular, nothing in this Agreement is intended to limit
the authority of the USFWS and CDFG to seek penalties or
otherwise fulfill its responsibilities under FESA, CESA and the
NCCP Act. Moreover, nothing in this Agreement is intended to
limit or diminish the legal obligations and responsibilities of the
USFWS as an agency of the federal government or CDFG as an
agency of the State of California.
27.14 No Third Party Beneficiaries. Without limiting
the applicability of rights granted to the public pursuant to FESA,
CESA, the NCCP Act or other applicable law, this Agreement shall
not create any right or interest in the public, or any member thereof,
as a third party beneficiary hereof, nor shall it authorize anyone not
a Party to this Agreement to maintain a suit for personal injuries or
property damages under the provisions of this Agreement. The
duties, obligations, and responsibilities of the Parties to this
Agreement with respect to third party beneficiaries shall remain as
imposed under existing state and federal law.
27.15 References to Regulations. Any reference in this
Agreement, the MSHCP, or the Permits to any regulation or rule of
the Wildlife Agencies shall be deemed to be a reference to such
regulation or rule in existence at the time an action is taken.
27.16 Applicable Laws. All activities undertaken
pursuant to this Agreement, the MSHCP or Permits must be in
compliance with all applicable state and federal laws and
regulations.
27.17 Severability. In the event one or more of the
provisions contained in this Agreement is held invalid, illegal or
75
unenforceable by any court of competent jurisdiction, such portion
shall be deemed severed from this Agreement and the remaining
parts of this Agreement shall remain in full force and effect as
though such invalid, illegal, or unenforceable portion had never
been a part of this Agreement. The Permits are severable such that
revocation of one does not automatically cause revocation of the
other.
27.18 Headings. The paragraph headings used in this
Agreement are for the convenience of the Parties and are not
intended to be used as an aid to interpretation.
27.19 Due Authorization. The USFWS and CDFG each
represent and warrant for the benefit of the Permittees and their
successors and assign that: 1) the execution and delivery of this
Agreement has been duly authorized and approved by all requisite
action; 2) no other authorization or approval, whether of
governmental bodies or otherwise, will be necessary in order to
enable the USFWS and CDFG to enter into and comply with the
terms of this Agreement; and 3) the person executing this
Agreement on behalf of the USFWS and CDFG has the authority
to bind the USFWS and CDFG respectively.
27.20 Faxed Signatures. Any Party may deliver its
signed duplicate of this Agreement to any other Party by facsimile
transmission, and such delivery shall be deemed made and
completed upon receipt of such facsimile transmission by such
other Party. Any Party delivering a signed duplicate by facsimile
transmission shall promptly send the duplicate original bearing its
original signature to such other Party, provided that a delay or
failure to do so shall not negate the effectiveness of the delivery
made by the facsimile transmission.
27.21 Calculation of Dates and Dates of Performance.
Where periods of time of forty-five (45) days or more are used in
this Agreement, calculation of dates of performance shall be by
calendar days, (e.g., where the text reads sixty (60) days, it shall be
read to mean sixty (60) calendar days). Where periods of time are
used in this Agreement of less than forty-five (45) days, calculation
of date or performance shall be by business or working days. In
the event that the date of performance is not a business day, due to
falling on a Saturday, Sunday, or observed state or federal holiday,
the date of performance shall be construed to be the next business
day subsequent to the calculated date of performance.
27.22 Further Instruments. Each of the Parties shall,
promptly upon the request of the others, execute, acknowledge, and
76
deliver to the others any and all further instruments and shall give
such further assurances as are reasonably requested or appropriate
to evidence or give effect to the provisions of this Agreement.
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this
Implementing Agreement to be in effect as of the date last signed below.
UNITED STATES FISH AND WILDLIFE SERVICE
Deputy Manager
United States Fish and Wildlife Service
California/Nevada Operations Office
Sacramento, California
77
Date:
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Date:
Deputy Director
Habitat Conservation Division
California Department of Fish and Wildlife
Sacramento, California
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Date:
Regional Manager
Eastern Sierra and Inland Deserts Region
California Department of Fish and WildlifeWildlife
Los Alamitos, California
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
Date:
General Counsel (approval as to form)
California Department of Fish and Wildlife
Sacramento, California
COACHELLA VALLEY ASSOCIATION
OF GOVERNMENTS
Date:
Chair of the Executive Committee
Coachella Valley Association of Governments
Palm Desert, California
COACHELLA VALLEY CONSERVATION COMMISSION
Date:
Chair
Coachella Valley Conservation Commission
Palm Desert, California
COACHELLA VALLEY MOUNTAINS CONSERVANCY
Date:
Chair
Coachella Valley Mountains Conservancy
Palm Desert, California
RIVERSIDE COUNTY BOARD OF SUPERVISORS
Date:
Chair of the Board of Supervisors
Riverside County Board of Supervisors
Riverside, California
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
Date:
Chair
Riverside County Flood Control
and Water Conservation District
Riverside, California
CALIFORNIA DEPARTMENT OF PARKS AND RECREATION
Date:
Director of State Parks
California Department of Parks and Recreation
Sacramento, California
RIVERSIDE COUNTY REGIONAL PARK
AND OPEN SPACE DISTRICT
Date:
Chair
Riverside County Regional Park and Open Space District
Riverside, California
RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT
Date:
Chair
Riverside County Waste Resources Management District
Riverside, California
CALIFORNIA DEPARTMENT OF TRANSPORTATION
Date:
Director
California Department of Transportation
Sacramento, California
CITY OF CATHEDRAL CITY
Date:
Mayor
City of Cathedral City
Cathedral City, California
CITY OF COACHELLA
Date:
Mayor
City of Coachella
Coachella, California
CITY OF DESERT HOT SPRINGS
Date:
Mayor
City of Desert Hot Springs
Desert Hot Springs, California
CITY OF INDIAN WELLS
Mayor
City of Indian Wells
Indian Wells, California
CITY OF INDIO
Mayor
City of Indio
Indio, California
CITY OF LA QUINTA
Mayor
City of La Quinta
La Quinta, California
CITY OF PALM DESERT
Mayor
City of Palm Desert
Palm Desert, California
CITY OF PALM SPRINGS
Mayor
City of Palm Springs
Palm Springs, California
81
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CITY OF RANCHO MIRAGE
Mayor
City of Rancho Mirage
Rancho Mirage, California
IMPERIAL IRRIGATION DISTRICT
Chair
Imperial Irrigation District
Imperial, California
COACHELLA VALLEY WATER DISTRICT
Chair
Coachella Valley Water District
Palm Desert, California
MISSION SPRINGS WATER DISTRICT
Chair
Mission Springs Water District
Desert Hot Springs, California
82
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