CGF comments on the Santa Clara Valley Habitat Plan

(We submitted the comments below on the County's Habitat Plan.  To follow along, the citations can be found here.  -Brian)

April 18, 2011

Cori Mustin, Senior Fish and Wildlife Biologist

USFWS

Ken Schreiber, HCP/NCCP Program Manager

County of Santa Clara Executive's Office

            Re:  Comments on the Draft Santa Clara Valley Habitat Plan

Dear Cori and Ken:

The Committee for Green Foothills submits the following comments on the Santa Clara Valley Habitat Plan:

Implementing Agreement:

7.4.3 Neighboring landowners:  we understand the reference and description of farmlands to exclude horse stabling except for purposes of horse breeding, and also to exclude recreational equestrian uses.  The reference to "associated activities such as … vehicle or horse use" is assumed to mean using vehicles or horses for the purposes of facilitating the previously described agricultural practices.  The above assumptions conform to the normal description of agricultural practice in Santa Clara County that excludes horse boarding stables and recreational equestrian uses.  If these assumptions are incorrect, then the language should be changed to specifically exclude horse boarding stables and equestrian recreation.

8.2.1. Exemptions:  the reference to "Table 6-10" should be "Table 6-1".

9.2.1. Conservation Easements:  if conservation organizations other than Implementing Entity hold the easements, the easements must also identify the Wildlife Agencies as third party beneficiaries.  This should be expressly stated in section 9.2.1.

9.4 Stay-Ahead or Rough Proportionality Requirement:  the language on page 30 stating "the Implementing Entity will fulfill the requirements of this Section and Chapter 8.6.1 so long as it ensures the pace…does not fall behind the pace at which Covered Activities impact habitat by more than ten percent…." presents a potential conflict with language in Chapter 8.6.1 (at 8-26) stating Habitat Plan requirements in Tables 5-11 and 5-13 still apply and must be met by Year 45 or Year 40.  To eliminate confusion, the IA language should be changed to read ""the Implementing Entity will fulfill the requirements of this Section and Chapter 8.6.1 so long as,subject to restrictions in Chapter 8.6.1, it ensures the pace…." (italicized language added).

In addition, the "Stay-Ahead" terminology is inaccurate because the Habitat Plan does not require the mitigation pace to stay ahead but instead allows it to fall as much as 10% behind.  The only term that should be used is "Rough Proportionality".

9.4.1 State and Federal Funding:  it is unclear when in the course of the permit term that the Plan will ensure that state and federal lands purchases "will not be credited towards SCVHP mitigation requirements" because this section states these purchases will be credited towards the rough proportionality requirement.  To take an extreme example, it appears under this provision that for an initial period of indefinite length, no land could be purchased for mitigation purposes, and 18,000 acres described in Chapter 9.4.3 could be purchased by state and federal funds, yet the rough proportionality requirement would still be satisfied.

If the intent regarding rough proportionality is to credit state and federal purchases toward a recovery pace requirement only, then that would solve the above problem but should be expressly stated.  If not, then there should be some other periodic check-in to ensure that mitigation is keeping pace with impacts and is not being obscured by the early application of enhancement land purchases.

If the Plan relies on purchases dedicated only to recovery to demonstrate rough proportionality, then it risks failing to actually achieve rough proportionality at a later point, because the Plan will have failed to increase mitigation requirements when it could have at an earlier point, and there will be no opportunity to return to prior-approved projects, particularly private projects, and request additional mitigation.

Draft Habitat Plan

Chapter 5:

General Comment:  for the reasons stated in the letter of April 18, 2011 from the De Anza College Wildlife Corridor Technician Program commenting on the Habitat Plan, the Plan should do much more for both 1.  permanent protection of lands in  Mid-Coyote (and we include North Coyote Valley area as well), and 2.  interim protection of lands in the same area pending future development.  The De Anza Program letter focuses on permanent protection and on Mid-Coyote, but their arguments can also be applied to North Coyote and to interim protection.

We support permanent protection for all the reasons stated in the De Anza letter.  In addition, permanent protection is at least partially compatible with urban development in Coyote Valley, because the proposals for urban development would not occupy 100% of the land.  Plans such as the now-defunct Coyote Valley Specific Plan acknowledged a role for natural open space.  It is conceivable that even with urban development, significant amounts of natural open space would be available in Mid and North Coyote flatland in the vicinity of Fisher Creek, along the southern boundary of Mid Coyote, areas adjoining the recently-purchased Open Space Authority land at the terminus of Palm Drive, and along the northern border of North Coyote/southern edge of Tulare Hill.   Fee title and easement purchases would be appropriate in all those areas. Small areas of permanent valley-floor protection could also be useful linkages for insects and native plants between Santa Teresa Hills and the Mount Hamilton range, and useful for research purposes.

Interim habitat protection and enhancement could also serve recovery goals.  The Habitat Plan acknowledges the negative temporal impacts if an interim period occurred between an impact and its mitigation, so the positive temporal impacts of an interim protection that might not be permanent should also be included.  Equally important, there is no binding commitment by the City of San Jose to allow permanent development of the majority of Coyote Valley, so that development might not happen.  This means the Habitat Plan's interim protection has the possibility of becoming permanent protection, and is all the more valuable.  Finally, the Plan anticipates a recovery trajectory for habitats and species in the Study Area, so interim protection can provide bridging benefits until new land can be purchased, rehabilitated, and enhanced.

Specific comments on Chapter 5:

Table 5-1a Objective 2.4 Species movement via Coyote Valley:  the Plan should purchase permanent or interim fee title/lease or easements in Coyote Valley, especially near Fisher Creek and other water bodies, near Palm Drive, near the north edge of North Coyote Valley, and near important crossing points  for  Highway 101 and Monterey Highway, and manage the properties to facilitate wildlife movement.

Table 5-2b Page 9 Directed Studies:  a new directed study should purchase land or easements in Mid and North Coyote and manage it as grassland to determine its value as annual grassland, its native plant value, its usefulness in linking insect and native plant communities across the Valley floor, and as nesting and overwintering burrowing owl habitat.

Table 5-9 Ref #10:  native species likely use this linkage also include coyote, ground squirrel, and mountain lion.

Table 5-21:  a footnote 5 is in the table, but no footnote 5 appears afterward.

Figure 5-9b:  it appears unlikely that there are only two culverts on Highway 152.

Chapter 6:

Table 6-1, page 3:  we understand the exemption for areas mapped as "landfill" does not include areas that are not yet landfill but are planned to be incorporated into a landfill, such as adjoining habitat near Kirby Landfill.  The exemption should not encompass these neighboring areas.

Chapter 8:

8.6.1 at 8-26 Measurement of Stay Ahead:  the language here regarding a 10% deviation conflicts with language in Implementing Agreement 9.4, and the IA 9.4 language is preferable.  Here, the requirement for no more than a 10% deviation implies that achieving over 110% of the conservation pace expected at the particular time is non-compliant, which should not be the case.  Instead, the IA 9.4 language that requirement means the pace "does not fall behind by more than ten percent" is better, and it allows for large land purchases that may bring the total to over 110% of the expected pace.  Similarly, the concave (upper) curves on Figures 8.4a and 8.4b should be deleted.

8.6.2 at 8-32 Interim Conservation:  this section refers to Figure 5-12, but no Figure 5-12 is included in Chapter 5.  It may actually be a reference to Figure 5-4.

Chapter 9:

9.4.1 at 9-30 Nitrogen Deposition Fee:  it is crucial that this relatively modest fee be retained in the Habitat Plan funding in order to accurately reflect actual costs caused by development, and to incentivize development that produces fewer vehicle trips.  Modifications that reflect the increase costs of longer vehicle trips could be appropriate, but elimination of this fee would impose improper burdens on others who are not creating the impacts described.

9.4.1 at 9-37 Temporary Impact Fee:  the description of temporary impacts on page 9-37 as those that "alter cover for less than one year and that allow the disturbed area to recover to pre-project" conditions appears to conflict with the formula on page 9-38 that allows the impact to occur for multiple years.  If this is for frequent, returning impacts, the language should be clarified.

Temporary impacts to grassland should be allowed in-lieu mitigation through interim grassland conservation actions in Mid and North Coyote Valley, such as temporarily enhancing the existing baseline conditions to facilitate grassland and wildlife linkage uses.  This comment also applies to Page 9-45, Implementing Conservation Actions in Lieu of Development Fees.

9.4.2 at 9-49 Land Acquisition by Other Local Land Agencies, Non-Profits, and Foundations:  this section should note that much if not nearly all of these acquisitions are likely to be limited to promoting recovery and not used as mitigation.

9.4.3 at 9-53 Measuring State and Federal Contributions:  see comment regarding Implementing Agreement 9.4.1 (If the intent regarding rough proportionality is to credit state and federal purchases toward an enhancement pace requirement only, then that would solve the above problem but should be expressly stated.  If not, then there should be some other periodic check-in to ensure that mitigation is keeping pace with impacts and is not being obscured by the early application of enhancement land purchases.)

Table 9-1 Remedial Measures:  the word "construction" after "Remedial Measures" should be deleted, because remedial measures deal with a wide variety of changed circumstances beyond just that of construction.

Please contact us if you have any questions.

Sincerely,

Brian A. Schmidt

Legislative Advocate, Santa Clara County