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Home My WebLink AboutRes 06-28 approving the MSHCP/NCCP and Implementing AgreementCITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT REQUEST: Approval of CEQA findings and the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Communities Conservation Plan (CVMSHCP/NCCP) Implementation Agreement. SUBMITTED BY: Phil Drell, Director of Community Development DATE: March 23, 2006 CONTENTS: Recommendation Discussion Resolution No. 06-28 Recommendation: Adopt Resolution No. 06-28 making Responsible Agency CEQA findings and approving the MSHCP/NCCP and Implementing Agreement. Discussion: The final plan document and implementing agreement approved by CVAG have been published, allowing for our final adoption of the plan. Submitted by: Phil Drell Director of Community Development Reviewed and Approved by: Homer Croy ACM for Development Services Reviewed and Approved by: Carlos Orteg City Manager REQUEST: SUBMITTED BY DATE: CITY OF PALM DESERT DEPARTMENT OF COMMUNITY DEVELOPMENT STAFF REPORT '-rGFTING DATE ,,`*_rihtUFD TO.�s3- TO 2ND READING..,,,,. Approval of CEQA findings and the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Communities Conservation Plan (CVMSHCP/NCCP) Implementation Agreement and OrClpanr-P Pctahlishino a local development mitigation fee. E� 1NG DATE Phil Drell, Director of Community Development / �GnNTINUED TO -a3-o' February 23, 2006 C�- 01-6(67 El PASSED TO 2ND READMIB_.,,," CONTENTS: Recommendation Executive Summary (Plan documents previously distributed) Resolution No. Ordinance No. CVAG Summary of MSHCP Benefits Recommendation: Continue hearing until March 9, 2006 to allow CVAG to resolve remaining issues and publish final document. Executive Summary: The CVMSCHP seeks to provide protection for twenty seven sensitive and endangered species through the creation of a 725,000 acre reserve system of which approximately 576,000 acres are currently owned by public or quasi -public agencies and 140,150 acres are to be acquired. The balance will be conserved through land use management. The reserve system will include twenty one separate areas distributed throughout the valley and surrounding mountains. Funding for the plan will include state and federal funds in addition to development mitigation fees assessed on all projects involving grading of natural open areas. Building on the existing model of the Fringe -toed Lizard Habitat Conservation Plan, all vacant undisturbed lands in the plan area will fall into three categories: areas to be conserved through acquisition, areas to be developed with the payment of mitigation fees or equivalent land dedication, and areas to be managed for uses compatible with conservation goals. Development within the mitigation .fee areas will receive incidental take coverage for the twenty-seven species allowing for the destruction of non -critical habitat and on -site flora and fauna. With the approval of the plan and participation in the established mitigation programs, Endangered Species Act, CEQA and NEPA biological issues will be resolved. Mitigation fees have been set at $5,270/acre for non-residential uses, $1,180/unit for residential projects 0-8 du/ac, $490./unit for densities of 8.1 du/ac to 14 units/acre, $216. for projects above 14.1 du/ac. Over the 75-year life of the plan, the mitigation fees are projected to generate $503,163,000 with total plan revenue of $1,810,794,000 from all sources. While the 01 STAFF REPORT CITY COUNCIL FEBRUARY 23, 2006 new fee is eight to nine times greater than the original $600/acre Lizard fee established in 1985, property values and the cost of land acquisition have increased by at least ten times. Trails The trails plan has been substantially revised to remove limits on use of existing trails. A five- year research program will be initiated to determine impacts of trail use on the covered species. The proposed Palm Desert/La Quinta Trail has been deferred pending the results of the five- year research program. The Hop -A -Long Cassidy Trail was approved outside of the CVMSHCP process. Conclusion The proposed plan provides the most equitable and economically feasible long-term strategy for preserving the essential quality of the Coachella Valley's natural environment for the benefit of both the area's unique native wildlife and its human inhabitants. The plan will provide clear direction for developers and property owners. Without it, the valley will inevitably merge with the anonymous urban sprawl that characterizes most of southern California. When driving through the San Gorgonio Pass you will always know you have finally left Los Angeles. Submitted by: c Phil Drell Director of Community Development Approved by: Homer Croy Assistant City Manager for Development Services PD/dq Approved by: Carlos Oyer City Man CITY COUNCIL *APPROVED RECEIVED G:\PLANNING\DONNAQUAIVER\WPDOCS\SR\multiplespecies.pd *By Minute Motion: 1)Endorsed the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Communities Conservation Plan as currently drafted; 2)continued the public hearing and presentation of the final documents for the implementation agreement and ordinance to the meeting of March 9, 2006. 4-0 (Ferguson ABSENT) 6 ACTION: DENIED OTHER MEETING DATE AYES: NOES: ABSENT: V _ ABSTAIN: VERIFIED By; ' original on Pile ari -- - _:- City CIerk's Of.[- Benefits of the MSHCP Y Local Control over Endangered Species Act Issues. When a Habitat Conservation Plan is approved, the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG) transfer their authority to issue an Incidental Take Permit (ITP) for a project under the state and federal Endangered Species Acts (ESAs) to local government. This eliminates the need for projects undertaken or approved by local governments who are Permittees under the MSHCP to deal with CDFG and USFWS. Instead, local government has control and issues an ITP for projects that are consistent with the MSHCP. Simplification of Compliance with the State and Federal Endangered Species Acts and Certainty for Development. The MSHCP provides simplified compliance with the state and federal ESAs and provides certainty to the development process. For projects outside the Conservation Areas, this means that the projects would no longer have to conduct biological surveys, address biological resource issues in an EIR, or negotiate individually with CDFG and USFWS regarding mitigation. Instead, projects outside the Conservation Areas would simply pay the Development Mitigation Fee. Coverage for Roads and other Vital Infrastructure Projects for 75 Years. In addition to providing ITPs and mitigation for critical freeway interchange projects in the Coachella Valley, the MSHCP provides ITPs for the regional road network (TPPS projects) and 75 years worth of Caltrans projects, including freeway and highway widening projects and bridge improvements. Other projects covered by the MSHCP include projects approved pursuant to county and city general plans, including the circulation element of said general plans, master drainage plans, capital improvement plans, water and waste management plans, the County's adopted Trails Master Plan, and other plans adopted by the Permittees. Also covered under the MSHCP are operations and maintenance of existing and future public facilities including publicly maintained roads and rights -of -way; materials pits; maintenance yards; flood control facilities; landfills, transfer stations, and other solid waste related facilities; water development, production, storage, treatment, and transmission facilities; sewage treatment and transmission facilities; reclaimed water storage and transmission facilities; public parks; substations and electric transmission facilities; and other public utility facilities providing services essential to the health, safety, and welfare of the public. 'r Maintaining quality of life and conferring economic benefits. The MSHCP will provide for the conservation of significant natural resource lands throughout the Coachella Valley since the wildlife habitat conserved by the MSHCP contains other resource values as well. Protection of these lands will maintain the Coachella Valley's quality of life by conserving the area's scenic and open space qualities and providing recreation amenities. Open space enhances property values and supports the area's tourism economy. Half of the lands to be acquired are expected to be funded with state and federal dollars, thus effectively leveraging the local Development Mitigation Fee money. Ramifications of the MSHCP's not being Approved If the MSHCP is not approved (which requires all the Permittees to approve it), there will be no Incidental Take Permit (ITP) for the eleven currently listed species that occur in Coachella Valley and no ITPs for the currently non -listed Covered Species should they become listed. The consequences of that are as follows: i- Loss of Coachella Valley Fringe -toed Lizard Permit. The current state ITP for the Coachella Valley fringe -toed lizard (CVFTL) will no longer be valid; further, USFWS is likely to initiate suspension or revocation of the federal ITP because the MSHCP is intended to redress deficiencies in the existing CVFTL HCP identified by USFWS. Without the MSHCP, it is expected that the existing Take Permit will be suspended or revoked and development that would impact this species would no longer be permitted. This would have an enormous impact on development throughout much of the Coachella Valley. i= No coverage for Transportation Projects. If the MSHCP is not approved, there would be no ITP for the TPPS projects or for Caltrans' improvements. Each such project would need to seek an ITP on a project by project basis from the Wildlife Agencies. While the freeway interchanges and associated arterials are being addressed on a parallel track to the MSHCP with the Wildlife Agencies, there are likely to be delays with these projects occasioned by the lack of an MSHCP. i- Risk of New Species being Listed as Threatened or Endangered. Should a species not currently listed become listed (such as the flat -tailed horned lizard or Coachella Valley round -tailed ground squirrel), all development in that species' habitat would be prohibited under the Endangered Species Act without an ITP. This would have a chilling effect on development in the Coachella Valley. i- No Simplification of Compliance with the State and Federal Endangered Species Acts. Even projects that do not impact a threatened or endangered species must still address the impacts of the project on other wildlife species. This may require preparation of an EIR, surveys of the project site to determine if sensitive species are present, and mitigation measures, which may have to be individually negotiated with USFWS and CDFG. Such individual project mitigation can be quite costly and can cause significant delays in projects. Coachella Valley Multiple Species Habitat Conservation Plan -Executive Summary The Coachella Valley Multiple Species Habitat Conservation Plan establishes and provides funds to monitor and manage a Reserve System that will conserve habitat for 27 Covered Species as well as 27 natural communities. It adds more than 200,000 acres to existing local, state, federal, and private conservation lands to establish an approximately 725,000 acre Reserve System, including new conservation areas, portions of Joshua Tree National Park and the Santa Rosa and San Jacinto Mountains National Monument. This system will protect covered species and natural communities conserved in the plan and watch over watersheds and creeks important to the local water supply, limit urban sprawl, enhance quality of life issues, and provide new recreational opportunities, including trails and wildlife viewing areas. Trails Component The plan also includes a Trails Plan for the Santa Rosa and San Jacinto Mountains, which reflects the high degree of concern about balancing recreation use and protection of the endangered Peninsular bighorn sheep. The Trails Plan: 1. Identifies year round trails; 2. Delineates new Perimeter Trails to be constructed on the edge of bighorn habitat and away from the most biologically sensitive areas; and 3. Establishes a permit system between January 15 and June 30th for the nine trails in the most sensitive bighorn sheep areas. Permittees and Take Permits The plan is both proactive and comprehensive and serves, as the basis for obtaining Take Permits, which will enable future growth and development to be in compliance with state and federal endangered species protection laws. A take permit allows a permitting process for a specified amount of take of threatened and endangered species. The take is in exchange for the establishment and management and monitoring of a reserve system for the permanent protection of those species. As permittees, all Coachella Valley cities and Riverside County, will receive these Take Permits. Plan Implementation - Coachella Valley Conservation Commission The local permittees are also establishing the Coachella Valley Conservation Commission, a joint powers authority, to implement the Plan. The Commission will administer revenues from various fees and other potential sources to implement the land acquisition program and ensure that the Reserve System lands are monitored and managed. The acquisition program is projected to require 30 years to complete. The Commission will also build an endowment fund to provide for monitoring and management of the Reserve System lands in perpetuity. This goal is not easy, as it will take 75 years to fully fund the endowment, allowing its annual interest to adequately fund the yearly monitoring and management costs. The Commission will also oversee a Joint Project Review Process for proposed development projects in Conservation Areas, to ensure the project is consistent with the plan's conservation objectives. What if there is no Conservation Plan? 1. Projects that would result in take of a currently listed threatened or endangered species would be unable to proceed, unless they went through a permitting process satisfactory to both state and federal agencies. This process could easily require many years, during which time the project, whether a private development project or a freeway interchange, could not proceed. 2. There is a high risk of additional species being listed as threatened or endangered, which could impede growth and development/public infrastructure projects within the Coachella Valley. 3. Projects that do not impact a threatened or endangered species must still address the impacts of the project on these and other wildlife species as required by the California Environmental Quality Act. This process may require preparation of an Environmental Impact Report (EIR), project surveys to determine the existence of sensitive species. Mitigation measures may also be required leading to negotiation with federal and state agencies. Such individual project mitigation can be quite costly and cause significant delays. There also remains the risk of the project s being challenged by environmental organizations that believe the project is inadequately analyzing or mitigating its impacts. Conclusion The Coachella Valley Multiple Species Habitat Conservation Plan will simplify the approval process for future growth and development, including both public infrastructure projects and private development. Developers can satisfy complex state and federal endangered species protection laws and requirements by simple compliance with this plan. Instead of undertaking lengthy surveys, environmental analysis, and negotiations with regulatory agencies, projects outside the plan's conservation areas will, in most instances, simply pay the required mitigation fee. This proactive and comprehensive plan balances the frequently conflicting needs of conservation and development in the Coachella Valley. RESOLUTION NO.06-28 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM DESERT, CALIFORNIA, MAKING RESPONSIBLE AGENCY FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT FOR THE MULTIPLE SPECIES HABITAT CONSERVATION PLAN/NATURAL COMMUNITY CONSERVATION PLAN, APPROVING THE COACHELLA VALLEY MULTIPLE SPECIES HABITAT CONSERVATION PLAN/NATURAL COMMUNITY CONSERVATION PLAN AND IMPLEMENTING AGREEMENT, AND ADOPTING ENVIRONMENTAL FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT WHEREAS, the Coachella Valley Multiple Species Habitat Conservation Plan (the "MSHCP" or "Project") is a regional, comprehensive, multi jurisdictional habitat conservation plan focusing on the conservation of both sensitive species and their associated habitats in order to address biological and ecological diversity and conservation needs in the Coachella Valley; sets aside significant areas of undisturbed land for the conservation of sensitive habitat; maintains opportunities for recreation; preserves open space; and maintains a strong and sustainable environment for economic Development in the region; and WHEREAS, the MSHCP establishes a framework for compliance with State and Federal Endangered Species regulations while accommodating future growth in the MSHCP Plan Area, including issuance of "Take" Permits for certain species pursuant to Section 10(a)(1)(B) of the Federal Endangered Species Act ("ESA") and Section 2800, et seq. of the California Fish and Game Code (otherwise known as the "Natural Community Conservation Planning Act" or "NCCP Act of 2001 "); and WHEREAS, the Coachella Valley Association of Governments ("CVAG") is the lead agency pursuant to the California Environmental Quality Act ("CEQA") (Public Res. Code, § 21000 et seq.) and the State CEQA Guidelines (14 CCR § 15000 et seq.); and WHEREAS, a joint Environmental Impact Report/Statement ("EIR/EIS") has been prepared pursuant to CEQA and the National Environmental Policy Act ("NEPA") in order to analyze all potential adverse environmental impacts of the Project; and WHEREAS, CVAG, at a public meeting on February 6, 2006, reviewed the Final EIR/EIS, MSHCP/Natural Communities Conservation Plan ("NCCP"), IA, Mitigation, Monitoring and Reporting Program ("MMRP") and other related documents in the record before it and by Resolution No. 06-002, certified the Final EIR/EIS, selected the Preferred Alternative and approved the MSHCP/NCCP, Implementation Agreement ("IA") and MMRP; and WHEREAS, pursuant to State CEQA Guidelines sections 15091, 15096, sub.(h), 15381, and CEQA, the City of Palm Desert ("City") is a responsible agency for the Project and must therefore make certain findings prior to the approval of the MSHCP; and RESOLUTION NO. 06-28 WHEREAS, the City Council of the City, at its regularly scheduled public meeting on March 9, 2006, which was continued to March 23, 2006, independently reviewed and considered the Final EIR/EIS and other related documents in the record before it; and WHEREAS, all the procedures of CEQA and the State CEQA Guidelines have been met, and the Final EIR/EIS, prepared in connection with the Project, is sufficiently detailed so that all the potentially significant effects of the Project on the environment and measures necessary to avoid or substantially lessen such effects have been evaluated in accordance with the above -referenced Act and Guidelines; and WHEREAS, as contained herein, the City has endeavored in good faith to set forth the basis for its decision on the Project; and WHEREAS, all of the findings and conclusions made by the City Council pursuant to this Resolution are based upon the oral and written evidence presented to it as a whole and not based solely on the information provided in this Resolution; and WHEREAS, prior to taking action, the City Council has heard, been presented with, reviewed and considered all of the information and data presented to it, including the Draft EIR/EIS, Final EIR/EIS and other documentation relating to the Project, and all oral and written evidence presented to it; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PALM DESERT AS FOLLOWS: A. The Final EIR/EIS prepared for the MSHCP is hereby received by the City Council in the form on file with the City Clerk and incorporated herein by this reference. B. The City Council hereby finds and determines that the Final EIR/EIS has been completed in compliance with CEQA and the State CEQA Guidelines and, and as the decision -making body for the City of Palm Desert, the City Council has reviewed and considered the information contained in the Final EIR/EIS and related documents before it and all of the environmental effects of the MSHCP. C. The City Council concurs with the environmental findings in CVAG Resolution No. 06-002 and adopts these findings, attached hereto as Exhibit A and incorporated herein by this reference. The City Council also finds that there are no additional feasible mitigation measures or alternatives within its powers that would substantially lessen or avoid any significant effects that the MSHCP would have on the environment. RMPUB\RHARGREAVES\265886.1 2 RESOLUTION NO. 06-28 D. The City Council hereby approves the MSHCP and authorizes the Mayor to execute the IA. E. The City Council hereby authorizes and directs that a Notice of Determination shall be filed with the Clerk of the County of Riverside within five (5) working days of approval of the Project. PASSED, APPROVED, AND ADOPTED this day of , 2006. AYES: NOES: ABSENT: ABSTAIN: JIM FERGUSON, MAYOR ATTEST: RACHELLE D. KLASSEN, CITY CLERK CITY OF PALM DESERT, CALIFORNIA APPROVED AS TO FORM: David J. Erwin, City Attorney I, Rachelle D. Klassen, City Clerk of the City of Palm Desert, do hereby certify that the foregoing Resolution No. 06-28 was duly and regularly adopted by the City Council at a regular meeting thereof, held on the day of , 2006, and that the foregoing is full, true and correct copy of said Resolution. Rachelle D. Klassen, City Clerk RMPUB\RI1ARGREAVES\265886.1 3 Contract No. C24410A Coachella Valley Multiple Species Habitat Conservation Plan and Natural Community Conservation Plan Fin al Implementing Agreement February 2006 (This page is intentional[y blank) TABLE OF CONTENTS Pa e 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 Agreement ....................................................................................................1 2.6 Allowable Uses ............................................................................................2 2.7 Annual Report(s) ..........................................................................................2 2.8 Area Plan ......................................................................................................2 2.9 Biological Corridor ......................................................................................2 2.10 Caltrans ........................................................................................................2 2.11 Candidate Species ........................................................................................2 2.12 CDFG ...........................................................................................................2 2.13 CEQA ...........................................................................................................2 2.14 Certificate of Inclusion ................................................................................2 2.15 CESA ...........................................................................................................2 2.16 Changed Circumstances ...............................................................................2 2.17 Cities ............................................................................................................2 2.18 Coachella Valley Fringe-Toed Lizard Habitat Conservation Plan or CVFTLHCP ................................................................................................3 2.19 Complementary Conservation .....................................................................3 � TABLE OF CONTENTS 2.20 Conservation ................................................................. 2.21 Conservation Areas ....................................................... 2.22 Conservation Goal(s) .................................................... 2.23 Conservation Level ....................................................... 2.24 Conservation Objective ................................................. 2.25 Conservation Strategy ................................................... 2.26 Conserved Habitat ......................................................... 2.27 Core Habitat .................................................................. 2.28 County ........................................................................... 2.29 County Flood Control ................................................... 2.30 County Parks ................................................................. 2.31 County Waste ................................................................ 2.32 Covered Activities ........................................................ 2.33 Covered Species ............................................................ 2.34 Critical Habitat .............................................................. 2.35 CVAG ........................................................................... 2.36 CVCC ............................................................................ 2.37 CVMC ........................................................................... 2.38 CVWD .......................................................................... 2.39 Development ................................................................. 2.40 Discretionary Project .................................................... 2.41 Effective Date ............................................................... 2.42 Emergency .................................................................... Pa e s ........................3 ........................3 ........................3 ........................3 ........................3 ........................3 ........................3 ........................3 ........................3 ........................4 ........................4 ........................4 ........................4 ........................4 ........................4 ........................4 ........................4 ........................4 ........................4 ........................4 ........................4 ........................4 ........................5 Q�e TABLE OF CONTENTS 2.62 Listed Species ..............................................................................................6 2.63 Local Development Mitigation Fee .............................................................6 2.64 Local Permittees ...........................................................................................6 2.65 Maintenance Activities ................................................................................6 2.59 Land Manager ..............................................................................................6 2.60 Land Use Adjacency Guidelines ..................................................................6 2.61 Linkage ........................................................................................................6 Pa e s 2.43 Endangered Species .....................................................................................5 2.44 Environmental Laws ........................................................................... 2.45 Essential Ecological Processes ........................................................... 2.46 Essential Habitat ................................................................................. 2.47 Executive Director .............................................................................. 2.48 Existing Conservation Lands .............................................................. 2.49 Existing Uses ...................................................................................... 2.50 FESA ................................................................................................... 2.51 Feasible ............................................................................................... 2.52 Habitat ................................................................................................. 2.53 HabiTrak ............................................................................................. 2.54 IID ....................................................................................................... 2.55 Implementing Agreement or IA .......................................................... .......5 .......5 .......5 .......5 .......5 .......5 .......5 .......5 .......5 .......6 .......6 .......6 2.56 Implementat�on Mechanism .........................................................................6 2.57 Independent Science Advisors .....................................................................6 2.58 Joint Project Review Process .......................................................................6 � TABLE OF CONTENTS 2.66 Major Amendments ......................................................... 2.67 Management Program ...................................................... 2.68 MBTA .............................................................................. 2.69 MBTA Special Purpose Permit ........................................ 2.70 Minor Amendments ......................................................... 2.71 Mitigation Lands .............................................................. 2.72 Monitoring Program ......................................................... 2.73 Monitoring Program Administrator ................................. 2.74 Monitoring Report(s) ....................................................... 2.75 MSHCP ........................................................................... 2.76 MSHCP Reserve System ................................................. 2.77 NCCP Act ....................................................................... 2.78 NCCP Permit .................................................................. 2.79 NEPA .............................................................................. 2.80 No Surprises Assurances ................................................. 2.81 Organizational Structure ................................................. 2.82 Operation and Maintenance Activities or O&M ............. 2.83 Other Conserved Habitat ................................................. 2.84 Participating Special Entity ............................................. 2.85 Party and Parties ............................................................. 2.86 Permit(s) .......................................................................... 2.87 Permittees ........................................................................ 2.88 Plan ................................................................................ Pa e s .......................6 ........................7 ........................7 ........................7 ........................7 ........................7 ........................7 ........................7 ........................7 ........................7 ........................7 ........................7 . ........................7 .........................7 .........................8 .........................8 .........................8 .........................8 .........................8 .........................8 .........................8 .........................8 .........................8 -iv- TABLE OF CONTENTS Pa e s 2.89 Plan Area ......................................................................................................8 2.90 Plan Participants ...........................................................................................9 2.91 Planning Agreement ......................... ............................................................ 2.92 Private Conservation Land ...........................................................................9 2.93 Reserve Lands ..............................................................................................9 2.94 Reserve Management Oversight Committee or RMOC ..............................9 2.95 Reserve Management Unit or RMU ............................................................9 2.96 Reserve Management Unit Committee or RMUC .......................................9 2.97 Reserve Management Unit Plan or RMUP ..................................................9 2.98 Reserve System Assembly ...........................................................................9 2.99 Rough Step ...................................................................................................9 2.100 Rough Step Analysis Unit ............................................................................9 2.101 Scientific Advisory Committee ....................................................................9 2.102 Section 10(a) Permit ....................................................................................9 2.103 Species Conservation Goal(s) ......................................................................9 2.104 State Assurances ........................................................................................10 2.105 State Parks ..................................................................................................10 2.106 State Permittee(s) .......................................................................................10 2.107 Take ............................................................................................................10 2.108 Take Authorization ....................................................................................10 2.109 Third Party Granted Take Authorization ...................................................10 2.110 Third Party Take Authorization .................................................................10 2.111 Threatened Species ....................................................................................10 -v- TABLE OF CONTENTS Pa e s 2.112 Unforeseen Circumstances .........................................................................10 2.113 Unlisted Species .........................................................................................10 2.114 USFWS ......................................................................................................10 2.115 Wildlife Agencies ......................................................................................10 3 RECITALS ............................................................................................................11 4 PURPOSES ............................................................................................................13 5 1NCORPORATION OF THE MSHCP .................................................................14 6 CONSERVATION STRATEGY ..........................................................................14 7 MSHCP RESERVE SYSTEM ASSEMBLY ........................................................15 7.1 Overview ....................................................................................................15 7.2 Contribution of Existing Conservation Lands ...........................................15 7.3 Complementary Conservation ................................................................... I 5 7.4 Contribution of Additional Conservation Lands ........................................15 7.5 Review of Development Proposals in Conservation Areas .......................16 7.6 Reserve Assembly Accounting ..................................................................16 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 ...........................................................17 9.3 Monitoring Reporting Requirements .........................................................17 -vi- TABLE OF CONTENTS Pa e s 10 REPORTING REQUIREMENTS .........................................................................17 10.1 Annual Reporting .......................................................................................17 10.2 Certificate of Reports .................................................................................18 1 1 MSHCP IMPLEMENTATION STRUCTURE ....................................................18 11.1 Permittee Implementation Mechanisms .....................................................18 1 1.1.1 The Cities .......................................................................................18 1 1.1.2 The County .....................................................................................19 11.1.3 County Flood Control ....................................................................19 1 1.1.4 County Parks ..................................................................................19 11.1.5 County Waste .................................................................................19 11.1.6 CVCC .............................................................................................19 11.1.7 CVAG ............................................................................................20 11.1.8 CVMC ............................................................................................20 11.1.9 Caltrans ..........................................................................................20 11.1.10 State Parks ....................................................................................20 I1.1.11 CVWD .........................................................................................20 11.1.12 IID ................................................................................................20 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 .......................21 -vii- 1 ABLE OF CONTENTS Pa e s 11.2.4 Joint Project Review Process .........................................................21 1 1.2.5 CVCC Executive Director .............................................................21 A. Selection .............................................................................21 B. Duties and Responsibilities ................................................21 11.2.6 Reserve Management Oversight Committee .................................21 A. Formation and Representation . ..........................................21 B. Duties and Responsibilities ................................................22 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 l 1.3.4 Condemnation of Lands Providing Conservation Benefits ...........23 11.3.5 New Listings of Species Not Covered by the MSHCP ..................24 11.4 Annexation and Deannexation of Lands ....................................................24 11.5 Incorporation of New Cities within MSHCP Boundaries ..........................25 11.6 Growth-Inducing Effects ...........................................................................25 11.7 Participating Special Entity ........................................................................25 11.7.1 Take Authorization for Participating Special Entities ...................25 1 1.7.2 Grant of Take Authorization to Participating Special Entity.........25 -viii- TABLE OF CONTENTS Pa e s 11.7.3 Requirements for Participating Special Entities ............................26 12 FUNDING OF THE MSHCP ................................................................................27 12.1 LocalObligations .......................................................................................27 12.1.1 Local Permittee Additional Conservation Lands Obligations .......27 12. ] .2 Administration Costs .....................................................................27 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..................................................................................28 12.2.3 Landfill Tipping Fees .....................................................................28 12.2.4 Eagle Mountain Landfill Environmental Mitigation Trust Fund. ..............................................................................................28 122.5 Additional Funding ........................................................................28 12.3 Annual Evaluation of Funding ...................................................................28 13 PERMITTEES' TAKE AUTHORIZATION AND OBLIGATIONS ...................29 l 3.1 Permittees' Take Authorization ..................................................................29 13.2 County and Cities Obligations ...................................................................29 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 -�x- TABLE OF CONTENTS Pa e s 13.9 IID Obligations ..........................................................................................34 13.10 Caltrans Obligations ...................................................................................35 13.11 State Parks Obligations ..............................................................................36 13.12 CVMC Obligations ....................................................................................36 14 USFWS OBLIGATIONS AND ASSURANCES .......................................... 14.1 Take Authorization for Covered Activities ........................................ 14.2 USFWS Findings - Covered Species .................................................. 15 ....37 ....37 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 .......39 .......39 .40 .40 .41 .41 .42 .42 15.2 NCCP Permit Findings ..............................................................................42 14.9 Critical Habitat Designation for Covered Species ............................. 14.10 Future Recovery Plans ....................................................................... 14.11 No Surprises Assurances and Unforeseen Circumstances ................. 14.11.1 No Surprises Assurances ...................................................... 14.12 Migratory Bird Treaty Act ................................................................. 14.13 Management of Land ......................................................................... CDFG OBLIGATIONS AND ASSURANCES ............................................ l 5.1 Issuance of NCCP Permit . ................................................................. -x- TABLE OF CONTENTS Pa e s 15.3 State Assurances . .......................................................................................42 15.4 Implementation Assistance . .......................................................................43 15.5 Fully Protected Species ..............................................................................43 15.6 Changes in the Environmental Laws .........................................................43 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 -xi- TABLE OF CONTENTS Pa e s 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 �� TABLE OF CONTENTS Pa e s 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 24 25 26 27 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 ....................... 23.7 Continuation Of Take Authorization after Revocation, Suspension or Permittee Withdrawal .......................................................................... FORCEMAJEURE ......................................................................................... LEGAL AUTHORITY OF THE USFWS ....................................................... LEGAL AUTHORITY OF THE CDFG .......................................................... MISCELLANEOUS PROVISIONS ................................................................ 27.1 Response Times . .................................................................................. 27.2 No Partnership . .................................................................................... 27.3 Nullification of Agreement . ................................................................. 27.4 Notices ................................................................................................. 27.5 Entire Agreement ................................................................................. 27.6 Assignment or Transfer ........................................................................ 55 ......56 ......56 ......57 ......57 ......57 ......57 ......57 ......57 ......57 ......64 ......64 -xiii- TABLE OF CONTENTS Pa e s 27.7 Defense ......................................................................................................64 27.8 Attorneys' Fees .................................................................................... 27.9 Elected Officials Not to Benefit .......................................................... 27.10 Availability of Funds . ......................................................................... 27.11 Governing Law . .................................................................................. 27.12 Duplicate Originals . ............................................................................ 27.13 Relationship to the FESA, CESA, NCCP Act and Other Authorities. 27.14 No Third Party Beneficiaries . ............................................................. 27.15 References to Regulations ................................................................... .64 .64 .64 .65 .......65 ......65 .......65 .......66 27.16 Applicable Laws . .......................................................................................66 27.17 Severability ................................................................................................66 27.18 Headings ....................................................................................................66 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 RVPUE3\70841 I .1 -X1V- IMPLEMENTING 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, COACHELLA VALLEY MOUNTAINS CONSERVANCY, CALIFORNIA DEPARTMENT OF FISH AND GAME, CALIFORNIA DEPARTMENT OF TRANSPORTATION, CALIFORNIA DEPARTMENT OF PARKS AND RECREATION, AND UNITED STATES FISH AND WILDLIFE SERVICE 1. PARTIES This Implementing Agreement ("Agreement"), made and entered into as of this day of ,, 2006, by and among the Coachella Valley Association of Governments, Coachella Valley Conservation Commission, Counry 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, 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 Game 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 Game 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 the Coachella Valley Conservation Commission of biologists who are acceptable to the California Department of Fish and Game and the United States Fish and Wildlife Service for purposes of conducting surveys of Covered Species. 2.2 "Acquisition and Funding Coordinating Committee" means a committee formed by the Coachella Valley Conservation Commission to provide 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, consisting of state and federal acquisition and mitigation for Permittees, as described in Sections 4.1 and 4.2.2 of the MSHCP. 2.5 "Agreement" means this Implementing Agreement. '� 2.6 "Allowable Uses" means uses allowed within the MSHCP Reserve System, as defined in Section 7.3.2 of the MSHCP. 2,7 "Annual Report(s)" means the report(s) prepared pursuant to the requirements of Section 6.4 of the MSHCP. 2.8 "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. 2.9 "Biological Corridor" means the wildlife movement area that is constrained by existing development, freeways, or other impediments. [See also "Linkage"] 2.10 "Caltrans" means the California Department of Transportation, a department of the California Business, Transportation, and Housing Agency. 2.11 "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. 2.12 "CDFG" means the California Department of Fish and Game, a department of the California Resources Agency. 2.13 "CEQA" means the California Environmental Quality Act (California Public Resources Code §§ 21000 et seq.) and all guidelines promulgated thereunder, as amended. For the MSHCP, CVAG shall be the lead agency under CEQA, as defined under State CEQA Guidelines section 15367. 2.14 "Certifcate of Inclusion" means the document attached as Exhibit "G" to this Agreement that would be required to be executed prior to an applicant receiving Take Authorization pursuant to Section 11.7 of this Agreement. 2.15 "CESA" means the California Endangered Species Act (California Fish and Game Code, §§ 2050 et seq.) and all rules, regulations and guidelines promulgated thereunder, as amended. 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 collectively the Cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs and Rancho Mirage. -2- 2.18 "Coachella Valley Fringe-Toed Lizard Habitat Conservation Plan" or "CVFTL HCP" means the Habitat Conservation Plan, dated April 21, 1986, more particularly described in Section 16.2 of this Agreement. 2.19 "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 Sections 4.1 and 4.2.1 of the MSHCP. 2.20 "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, 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 Plan, this Agreement or Permits or agreed to through implementation of the Plan. 2.21 "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. 2.22 "Conservation Goal(s)" means a broad statement of intent that describes how the Plan wil] 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. 2.23 "Conservation Level" means a numerical designation, as described in Section 2.4 of the MSHCP, assigned to all land within the Plan Area. 2.24 "Conservation Objective(s)" means measurable statements of actions or measures that will lead to attainment of the Conservation Goals. 2.25 "Conservation Strategy" means the overall approach to assure Conservation of Covered Species within the Plan Area. 2.26 "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. 2.27 "Core Habitat" means the areas identifed 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. 2.28 "County" means the County of Riverside. -3- 2.29 "County Flood Control" means the Riverside County Flood Control and Water Conservation District. 2.30 "County Parks" means the Riverside County Regional Parks and Open Spacc District. 2.31 "County Waste" means the Riverside County Waste Resources Management District. 2.32 "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 lawfi.�l. 2.33 "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. 2.34 "Critical Habitat" means Habitat for species listed under FESA that has been designated pursuant to section 4 of FESA and identified in 50 Code of Federal Regulations sections 17.95 and 17.96. 2.35 "CVAG" means the Coachella Valley Association of Governments, a joint powers authority comprised of the Cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, Rancho Mirage, the County of Riverside and non- Parties the City of Blythe, the Agua Caliente Band of Cahuilla Indians, the Cabazon Band of Mission Indians and the Torres Martinez Band of Cahuilla Indians, that functions as the lead agency for the preparation of the MSHCP. 2.36 "CVCC" means the Coachella Valley Conservation Commission, 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. 2.37 "CVMC" means the Coachella Valley Mountains Conservancy, a state agency within the California Resources Agency. 2.38 "CVWD" means the Coachella Valley Water District. 2.39 "Development" means the uses to which land shall be put, including construction of buildings, structures, infrastructure and all associated alterations of the land. 2.40 "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. 2.41 "Effective Date" means the date on which this Agreement takes effect, as set forth in Section 19.1 of this Agreement. -4- 2.42 "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 occunences as fire, flood, earthquake, or other soils or geologic movements, as well as such occurrences as riot, accident, or sabotage. 2.43 "Endangered Species" means those species listed as endangered under FESA and/or CESA. 2.44 "Environmental Laws" means state and federal laws governing or regulating thc impact of Development activities on land, water or biological resources as they relate to Covered Species, including but not limited to CESA, FESA, the NCCP Act, CEQA, NEPA, the MBTA, the Fish and Wildlife Coordination Act, the Fish and Wildlife Act of 1956, the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.), the Native Plant Protection Act (California Fish and Game Code, §§ 1900 et seq.), Fish and Game Code sections 1801, 1802, 3511, 4700, 5050 and 5515 and includes any regulations promulgated pursuant to such laws. 2.45 "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. 2.46 "Essential Habitat" means certain lands delineated in the Recovery Plan for Bighorn Sheep in the Peninsular Ranges, California (USFWS 2000). 2.47 "Executive Director" means the Director of the CVCC. 2.48 "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. 2.49 "Existing Uses" means an existing use, such as a home or sand and gravel mine, which is the dominant use on the property. 2.50 "FESA" means the Federal Endangered Species Act (16 U.S.C. §§ 1531 et seq.) and all rules and regulations promulgated thereunder, as amended. Z.S I "Feasible" means capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and tcchnological factors. 2.52 "Habitat" means the combination of environmental conditions of a specific place providing for the needs of a species or a population of such species. -5- 2.53 "HabiTrak" means a GIS application to provide data on Habitat loss and Conservation , which occurs under the Permits. 2.54 "IID" means the Imperial Irrigation District. 2.55 "Implementing Agreement" or "IA" means this Agreement, which implements the terms and conditions of the MSHCP. 2.56 "Implementation Mechanism" means the method selected by the Permittees to ensure implementation of the MSHCP. 2.57 "Independent Science Advisors" 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. 2.58 "Joint Project Review Process" means the review process described in Section 6.6.1.1 of the MSHCP for public and private Development proposed in Conservation Areas. 2.59 "Land Manager" means the entity or entities which have the responsibility to manage land acquired by the Permittees as set forth in Section 6.1.5 of the MSHCP. 2.60 "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. 2.61 "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"] 2.62 "Listed Species" means a species that is listed under FESA and/or CESA. 2.63 "Local Development Mitigation Fee" means the fee imposed by applicable Local Permittees on new Development pursuant to Government Code sections 66000 et seq. 2.64 "Local Permittees" means CVAG, CVCC, County, County Flood Control, County Parks, County Waste, CVWD, IID, and the Cities. 2.65 "Maintenance Activities" means those Covered Activities that include the ongoing maintenance of public facilities as described in Section 7.1 of the MSHCP. 2.66 "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. � 2.67 "Management Program" means the MSHCP's management actions as described in Section 8 of the MSHCP. 2.68 "MBTA" means the federal Migratory Bird Treaty Act (50 C.F.R. §§ 21 et seq.) and all rules and regulations promulgated thereunder, as amended. 2.69 "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. 2.70 "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. 2.71 "Mitigation Lands" means a subset of Additional Conservation Lands as described in Sections 4.1 and 4.2.2.2 of the MSHCP. 2.72 "Monitoring Program" means the monitoring programs and activities set forth in Section 8 of the MSHCP. 2.73 "Monitoring Program Administrator" means the individual or entity responsible for administering the monitoring program, as described in Section 6.1.6 of the MSHCP. 2.74 "Monitoring Report(s)" means the report(s) prepared pursuant to the requirements of Section 8.7 of the MSHCP. 2.75 "MSHCP" means the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community 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 of the MSHCP and Exhibit "A" of this Agreement. 2.76 "MSHCP Reserve System" means a reserve that will total approximately 725,000 acres. The MSHCP Reserve System will provide for the Conservation of the Covered Species. 2.77 "NCCP Act" means the California Natural Cammunity Conservation Planning Act (California Fish and Game Code §§ 2800 et seq.), including all regulations promulgated thereunder, as amended. 2.78 "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. 2.79 "NEPA" means the National Environmental Policy Act (42 U.S.C. §§ 4321 - 4335) and all rules and regulations promulgated thereunder, as amended. For the purposes of the MSHCP, the USFWS is the lead agency under NEPA as defined in 40 Code of Federal Regulations section 1508.16. 'JI! 2.80 "No Surprises Assurances" means that provided Permittees are properly implementing the terms and conditions of the MSHCP, the 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 Code of Federal Regulations sections 17.22(b)(5) and 17.32(b)(5) and as discussed in Section 6.8 of the MSHCP and Section 14.11 of this Agreement. 2.81 "Organizational Structure" means the local administrative structure for implementation and management of the MSHCP, as set forth in Section 6.1 of the MSHCP. 2.82 "Operation and Maintenance Activities" or "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. 2.83 "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 cffccts, enhanced species persistence probability in proximate Core Habitat, genetic diversity, recolonization potential, and flexibility in the event of long-term Habitat change. 2.84 "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 and receives Take Authorization pursuant to Section 7.4 of the MSHCP and Section 11.7 of this Agreement. 2.85 "Party" and "Parties" mean the signatories to this Agreement, namely CVCC, CVAG, County, County Flood Control, County Parks, County Waste, the Cities, CVWD, IID, 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. 2.86 "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. 2.87 "Permittees" means CVAG, CVCC, County, County Flood Control, County Parks, County Waste, the Cities, CVWD, IID, Caltrans, State Parks and CVMC. 2.88 "Plan" means the Coachella Valley Multiple Species Habitat Conservation Ylan/Natural Community Conservation Plan, a comprehensive multiple species habitat conservation planning program that addresses multiple species' needs, including I-labitat and the preservation of natural communities in the Coachella Valley area of Riverside County, California, as depicted in Figure 4-1 of the MSHCP and Exhibit "A" of this Agreement. 2.89 "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 2-2 of the MSHCP and Exhibit "B" to this Agreement. : 2.90 "Plan Participants" means CVAG, CVCC, County, County Flood Control, County Parks, County Waste, the Cities, CVWD, IID, CVMC, Caltrans, State Parks and others receiving Take Authorization under the Permits. 2.91 "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. 2.92 "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. 2.93 "Reserve Lands" means Existing Conservation Lands, Additional Conscrvation Lands, and Complementary Conservation. 2.94 "Reserve Management Oversight Committee" or "RMOC" means the committee established by the CVCC to provide biological, technical, and operational expertisc for implementation of the MSHCP, including oversight of the MSHCP Reserve System, as described in Section 6.1.3 of the MSHCP. 2.95 "Reserve Management Unit" or "RMU" means the geographic areas within the MSHCP Reserve System identified in Section 6.1.4 of the MSHCP. 2.96 "Reserve Management Unit Committee" or "RMUC" means a committee that will be established for each Reserve Management Unit as set forth in Section 6.1.4 of the MSHCP. 2.97 "Reserve Management Unit Plan" or "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. 2.98 "Reserve System Assembly" means the process of conserving lands within the Conservation Area through acquisition or other means to assemble the MSHCP Reserve System. 2.99 "Rough Step" means the Reserve System Assembly accounting process to monitor Conservation and loss of specified Habitats within the Plan Area 2.100 "Rough Step Analysis Unit" means a geographic unit within which Rough Step is tracked. The Conservation Areas are the Rough Step Analysis Units. 2.101 "Scientific Advisory Committee" means the committee of scientists that provided scientific input into the development of the Plan, as described in Section 3.1.1. 2.102 "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. 2.103 "Species Conservation Goal(s)" means the Goals for the Conservation of each Covered Species described in Section 9 of the MSHCP. �•� 2.104 "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. 2.105 "State Parks" means the California Department of Parks and Recreation, a department of the California Resources Agency. 2.106 "State Permittee(s)" means Caltrans, State Parks, and CVMC. 2.107 "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. 2.108 "Take Authorization" means the ability to incidentally Take species pursuant to the Section 10(a)(1) Permit and/or the NCCP Permit. 2.109 "Third Party Granted Take Authorization" means any Third Party that receives Third Party Take Authorization in compliance with Section 17 of this Agreement. 2.110 "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. CESA. 2.111 "Threatened Species" means those species listed as threatened under FESA and/or 2.112 "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 Code of Federal Regulations, sections 17.22(b)(5) and 17.32(b)(5); and (2) in California Fish and Game Code section 2805(k). 2.113 "Unlisted Species" means a species that is not listed as rare, endangered or threatened under FESA, CESA or other applicable state or federal law. 2.114 "USFWS" means the United States Fish and Wildlife Service, an agency of the United States Department of the Interior. 2.115 "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, 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 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 -11- 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 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 -12- lnclusion 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 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(� 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. -13- 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 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 appraach 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. 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 725,000 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. 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. - ]4- 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 725,000 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 482,000 acres. Because of acquisitions, the acreage had increased to 534,200 by 2003. Of this acreage, 477,100 acres (as of 1996), or 515,800 acres (as of 2003) are federal and state Existing Conservation Lands. Approximately 900 acres (as of 1996), or 11,900 acres (as of 2003) are non-profit organization Existing Conservation Lands. Approximately 4,000 acres (as of 1996) or 6,500 acres (as of 2003) are Local Permittee Existing Conservation Lands. 7.3 Complementary Conservation. As described in Sections 4.1 and 4.2.1 of the MSHCP, the MSHCP Reserve System will include approximately 83,880 acres (as of 1996), or 42,590 acres (as of 2003) through Complementary Conservation efforts. Such 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 Sections 4.1 and 4.2.2 of the MSHCP, the MSHCP Reserve System will include Additional Conservation Lands comprised of approximately 151,250 acres as of 1996, that will be acquired or otherwise conserved. Of this acreage, approximately 100,600 acres (as of 1996) will be acquired or otherwise conserved as the Local Permittees' share of Plan implementation. As a result of acquisitions, this acreage was 98,100 acres as of 2003. Approximately 39,850 acres (as of 1996) or 31,250 acres (as of 2003) will be acquired or otherwise conserved as the state and federal contribution to Plan implementation. Approximately 10,800 acres of public and quasi- public tands 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 - rs - 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 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 cunently 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. -16- 9.2 Monitoring Program Administrator. A Monitoring Program Administrator shall be selected by the CVCC and shall be responsible for implementing the Monitoring Program 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. C. Identification of Adaptive Management actions indicated and whether or not such actions were implemented. D. A description of Reserve Management activities for the previous year. E. 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. F. 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. G. 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. 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 managcment over the previous year and applicable budgets for the upcoming fiscal year. - 17- J. Summary of compliance activities required of Permittees. K. A copy of the audit of CVCC finances for the most recent fiscal year. 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 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: 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. 1 1.1.2 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: 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. 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 MSI��CP 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 -19- 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.] 1 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. 11.2 Organizational Structure 1].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 and IID. 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, -20- 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 11.2.6 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. 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 -21 - 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 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 -22- 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 rnitigation measures that will replace the Conservation benefits that would have been provided by the condemned lands. -23- 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 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. Tf 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 anriexation 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 -24- 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 sha11 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 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 aIl terms and requirements of the MSHCP, the Permits and this Agreement and does not compromise the viability of -25- 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. -26- 12. FUNDING OF THE MSHCP The funding of the MSHCP, including fnancing of Reserve System Assembly, and management and monitoring will occur pursuant to Section 5.0 of the MSHCP. 12.1 LocalObligations. 12.1. ] 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 100,600 acres of Additional Conservation Lands (as of 1996) and 98,100 acres (as of 2003). Approximately 90,000 acres will be conserved through acquisition or other means. The projected cost in 2005 dollars for this acreage is approximately $288 million. The related transaction costs for appraisals, escrow fees, etc. are estimated to be approximately $14.4 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 in Sections 5.1.2.3 and 5.1.3 of the MSHCP, thc Local Permittee obligation for Plan administration costs for the acquisition program is approximately $411,000 in the first year, increasing by 3% annually to offset inflation. Non-acquisition program administration costs are estimated to be approximately $42,000 in the first year and $77,544,000 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. T'he primary components are as follows: 12.2. I 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 $503 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. -27- 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 and IID 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 �234 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. [f 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. 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; 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, othcr 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: ] 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. -29- 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 MS�ICP; 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; 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. -30- 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. Carry out all other applicable requirements of the MS13CP, 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; 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 -31- Species, as appropriate. Such mitigation shall be implemented prior to impacts to Covered Species and their Habitats. 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; 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. -32- 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 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; 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 MSIiCP; 3) compliance with the Avoidance, Minimization and Mitigation Measures in Section 4.4 of the MSHCP; 4) ensure implementation consistent with the -33- Species Conservation Goals and Objectives in Section 9; 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 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; 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. -34- D. Participate as a member of the CVCC as set forth in Section 6.1.1.1 of the MSHCP. 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; 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 -35- 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. 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; 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; and 5) permanently protect and manage Mitigation Land within the reserve -36- 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. 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. The USFWS shall, to the extent appropriate, 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. -37- 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 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 Seetion 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 -38- 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 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: -39- �, A. Not require any additional land or fnancial 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. 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; -40- C. � 14.11.5 The percentage of the range of the Covered Species and Habitat that has been conserved by the MSHCP; 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. 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. -41 - 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 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 MSHCP's mitigation program that would require additional funding nor to impose significant -42- 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 fndings 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: I) Peninsular bighorn sheep; 2) Yuma clapper rail; and 3) California btack 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 adeyuate 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. 15.6 Changes in the Environmental Laws. lt 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 - 43 - 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 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. -44- 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-fve (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. [n this event, the provisions of Section 17.4 of this Agreement would be h-iggered. 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. - 45 - 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 compiiance 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 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 Agreemcnt. Clerical changes include 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 enors 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 thc -47- 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 thc 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 citics 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 Reservc System Assembly or management or preclude achieving Conservation Area Conservation Objectives or Species Conservation Goals; E. Annexation or deannexation of property within the Plan Arca 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. G. Updates/corrections to the natural communities map and/or species occurrence data; and 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: 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 I�abitat and is of greatcr 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) 20.4.4 Procedure. Any Party may propose Minor Amendments to the MSHCP or this Agreemcnt 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 -49- 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 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 thc 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 -50- 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 pubtic 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. TERMIIVATION OF PERMITS 21.1 Termination in General. The Permittees may unanimously elect to terminate the MSHCP and the Permits. ln 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 SO 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 Yermittees' specific responsibilities and time frames for carrying out such obligations to ensure Rough Step requirements are met by the Permittees. -51 - 21.4 Dissolution of the CVCC. In the event the CVCC dissolved at the time of termination, the CVCC's obligations unde carried out by the County or other appropriate entity and/or entities Agencies. 22. WITHDRAWAL OF PERMITTEE(S) disbands or is otherwise r this Agreement shall be acceptable to the Wildlife 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 retated to the MSHCP that have been collected. 22.2 Mitigation Responsibilities. Consistent with the reyuirements 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 Agreement and the MSHCP. measures as may be required pursuant to the terms of this 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 Authorization may continue to be provided to the remaining Permittees. In making this determination, the Wildlife Agencies sha11 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 -52- 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 thc 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 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-fve (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 neccssary, by temporary or permanent injunction without the neccssity of proving -53- either actual damages or the inadequacy of otherwise available legal remedies, or for other equitable relie£ 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 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 -54- 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 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 federa1404 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. -55- 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 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. -56- 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. 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 thc 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: -57- 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 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 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: 909-3 83-4561 Telefax: 909-383-6899 Deputy Director Habitat Conservation Division California Department of Fish and Game 1416 Ninth Street, 13th Floor Sacramento, California 95814 Telephone: 916-653-1070 Telefax: 916-653-3673 Regional Manager Eastern Siena and Inland Deserts Region California Department of Fish and Game 4665 Lampson Ave. Suite J Los Alamitos, California 90720 Telephone: 562-430-7212 Telefax: 562-799-8427 : City Manager City of Cathedral City 68-700 Avenida Lalo Guerrero Cathedral City, California 92234 Telephone: 760-770-0372 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 65950 Pierson Blvd. Desert Hot Springs, California 92240 Telephone: 760-329-6411 Telefax: 760-251-2072 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: 760-342-65 80 Telefax: 760-342-6597 City Manager City of La Quinta 78-495 Calle Tampico La Quinta, California 92253 Telephone: 760-777-7100 Telefax: 760-777-7101 -59- City Manager City of Palm Desert 73-510 Fred Waring Drive Palm Desert, California 92260 Telephone: 760-346-0611 Telefax: 760-340-0574 City Manager City of Palm Springs 3200 Tahquitz Canyon Way Palm Springs, California 92263 Telephone: 760-323-8250 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 Highway 111 and 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: 760-3 39-9219 Telefax: 760-339-9414 or 760-339-9392 Chief Executive Officer County of Riverside County Administrative Center P.O. Box 1605 Riverside, California 92502-1605 Telephone: 951-955-1100 Telefax: 951-955-1105 .1 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 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, Sth 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: 760-770-0342 Telefax: 760-770-0399 Mayor City of Coachella 1515 6th Street Coachella, California 92236 Telephone: 760-398-3502 Telefax: 760-398-8117 Mayor City of Indian Wells 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: 760-342-6500 Telefax: 760-342-6597 -62- Mayor City of La Quinta 78-495 Calle Tampico La Quinta, California Telephone: 760-777-7030 Telefax: 760-777-7101 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 Tahquitz Canyon Way Palm Springs, California 92263 Telephone: 760-323-8200 Telefax: 760-322-8207 Mayor City of Rancho Mirage 69-825 Highway 111 Rancho Mirage, California 92270 Telephone: 760-324-4511 Telefax: 760-324-8830 Mayor City of Desert Hot Springs 65950 Pierson Blvd. Desert Hot Springs, California 92240 Telephone: 760-329-6411 Telefax: 760-251-2072 Field Supervisor United States Fish and Wildlife Service 6010 Hidden Valley Road Carlsbad, California 92009 Telephone: 760-431-9440 Telefax: 760- 431-9618 -63- County Counsel County of Riverside 3535 lOth 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 Game 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 Partics to rcquirc thc obligation, appropriation, or expenditure of any money from the United States Treasury. The -64- 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 reyuire 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, and IID 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 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 -65- 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 MS�ICP 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 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 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 CALIFORNIA DEPARTMENT OF FISH AND GAME Deputy Director Habitat Conservation Division California Department of Fish and Game Sacramento, California CALIFORNIA DEPARTMENT OF FISH AND GAME Regional Manager Eastern Sierra and Inland Deserts Region California Department of Fish and Game Los Alamitos, California CALIFORNIA DEPARTMENT OF FISH AND GAME General Counsel (approval as to form) California Department of Fish and Game Sacramento, California Date: Date: Date: Date: -67- COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS Chair of the Executive Committee Coachella Valley Association of Governments Palm Desert, California COACHELLA VALLEY CONSERVATION COMMISSION Chair Coachella Valley Conservation Commission Palm Desert, California COACHELLA VALLEY MOUNTAINS CONSERVANCY Chair Coachella Valley Mountains Conservancy Palm Uesert, California RIVERSIDE COUNTY BOARD OF SUPERVISORS Chair of the Board of Supervisors Riverside County Board of Supervisors Riverside, California RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT Chair Riverside County Flood Control and Water Conservation District Riverside, California Date: Date: Date: Date: Date: .: CALIFORNIA DEPARTMENT OF PARKS AND RECREATION Director of State Parks California Department of Parks and Recreation Sacramento, California RIVERSIDE COUNTY REGIONAL PARK AND OPEN SPACE DISTRICT Chair Riverside County Regional Park and Open Space District Riverside, California Date: Date: RIVERSIDE COUNTY WASTE RESOURCES MANAGEMENT DISTRICT Chair Riverside County Waste Resources Management District Riverside, California CALIFORNIA DEPARTMENT OF TRANSPORTATION Director California Department of Transportation Sacramento, California CITY OF CATHEDR.AL CITY Mayor City of Cathedral City Cathedral City, California Date: Date: Date: .• 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 Date: Mayor City of Indian Wells Indian Wells, California CITY OF IND10 Date: Mayor City of Indio Indio, California CITY OF LA QUINTA Date: Mayor City of La Quinta La Quinta, California -70- CITY OF PALM DESERT Date: Mayor City of Palm Desert Palm Desert, California C1TY OF PALM SPRINGS Date: Mayor City of Palm Springs Palm Springs, California CITY OF RANCHO MIRAGE Date: Mayor City of Rancho Mirage Rancho Mirage, California IMPERIAL IRRIGATION DISTRICT Date: Chair Imperial Irrigation District Imperial, California COACHELLA VALLEY WATER DISTRICT Date: Chair Coachella Valley Water District Coachella, California -71 LIST OF EXHIBITS COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS MSHCP IMPLEMENTING AGREEMENT Exhibit A - Map of MSHCP Exhibit B - Exhibit C - Exhibit D - Exhibit E Exhibit F Exhibit G Exhibit H Map of MSHCP Area List of Covered Species and Natural Communities Model Ordinance Adopting Local Development Mitigation Fee - Model Resolution Adopting MSHCP - Model Memorandum of Understanding for the Cooperation in Habitat Conservation Planning and Management for the Coachella Valley Multiple Species Habitat Conscrvation Plan/Natural Community Conservation Plan - Model Certificate of Inclusion - Model Conservation Easement EXHIBIT "A" � � � �e�� o �r� '� 16 , � CVMSHCPMCCi' • i _ ��:',;~..,. a „.�., rw,.,�,... w.m..a...i. i ....t..e�� .�ei., rN1y � , iu � .., ,.. . .,. � , �. �... ..,._.. ..yl .,. , . . ,.� ,. _ �. � , � N S ' �. . ' L. . , ' 'i, fy:' � `�'1. ; ; , 'y, i, , 'Q . . ��,� . . i cQC pa� �Oa � The fotlowrn� en6G�s p�rOdp�fe in a coppsretivs eNort to mak� ths CVMSliCP posvM� CoacA�N� VsYeyAssoastlon olGorommsnts The Counry olPoversde Tne Co�rndl� V�x�y Mauntains Conserv�nty The Bureeu olLsndMsnapement TM U S. FrsA entl Wildkl� Semu The CalAomie O�psrtmenf o/ Fish end Game The U S Foros1 Ssnics TM NafronN PNir S�rNce (Joshua in� Ni6onM Pii1cl The CaUfomia Drpertmsnf o/ Puka end Recrssdon C V �� Flqun t.t California N w c { � No Scale t � -' — �CVMSHCP CCPiL a ♦ LYSCLIUMER. CVAG and The County ol RivsrsrW assume no wa�enty or Ngal nsponsibrlAy la tN udorm�6on coMamed on Mis map Daq and m/amahon repesented on lha mep �s subjset fo updafsa/mod�frcet�ons �nd may nof b� compbh o� �ppvopiib /or dl purpos�s. CVAG �nd County GfS �nd olher sources shoWd bs pusrisd /or fhe most currsnf rn/orm�bon. Haizontal accuncy Parc�! dab ra o/ m�pprnD 9�0� (quslrty) onty and does nof ropesent isLabb locMrons oi Ispel boundenes lls�r idsum►s all iisk o/ use ol lhrs pioduct Oo not copy or �essll this mep Figure 1-1: Regional Context Map Coachella Valley MSHCPiNCCP Exhibit A EXHIBIT "B" Draft Coache!!a Valley Multiple Species Habitaf Conservation Plan and Natural Communiiy Conservation Plan J ' N San 8ernardino Countv Figure 1-2: Plan Area Exhibit B EXHIBIT "C" LIST OF COVERED SPECIES AND NATURAL COMMUNITIES �INVERTEBRATES/INSECTS Coachella Valley giant sand-treader cricket Macrobaenefes valgum Coachelia Valley Jerusalem cricket Stenopelmatus cahuilaensis IFISH IDesert pupfish Cyprinodon macularius �AMPHIBIANS �Arroyo toad �Bufo californicus �REPTILES IDesert tortoise Gopherus aqassizii IFlat-tailed horned lizard Phrynosoma mcallii ICoachella Valley fringe-toed lizard Uma inornata IBIRDS �1'uma clapper rail �Rallus lonqirostris yumanensis Ialifornia black rail Laterallus jamaicensis �Burrowing owl ��4thene cunicularia �Southwestern willow flycatcher �Empidonax traillii extimus ICrissal thrasher Toxostoma crissale �Le Conte's thrasher Toxosfoma lecontei ILeast Beli's vireo Vireo bellii pusillus Gray vireo Vireo vicinior Yellow warbler Dendroica petechia brewsteri __ �Yellow-breasted chat �Icteria virens ummer tanager iranqa rubra �MAMMALS ISouthern yellow bat Lasiurus ega or xanfhinus Exhibit C — Page 1 oachella Valley round-tailed ground squirrel Spermophilus tereticaudus chlorus �MAMMALS (Continued) Palm Springs pocket mouse Peroqnafhus lon.qimembris ban.qsi Peninsular bighorn sheep Ovis canadensis nelsoni �PLANTS �ecca aster ylorhiza cognate �Coachella Valley milkvetch (�4straqalus lentiqinosus var. coachellae �Tnple-ribbed milkvetch IAstragalus tricarinatus Orocopia sage Salvia greatae Little San Bernardino Mountains linanthus Linanthus maculatus (or Gilia maculata) INATURAL COMMUNITIES �Active desert dunes �Stabilized and partially stabilized desert dunes �Active desert sand fields �Ephemeral desert sand fieids �Stabilized and partially stabilized desert sand fields �Stabilized shielded desert sand fields �Mesquite hummocks �Sonoran creosote bush scrub �Sonoran mixed woody and succulent scrub �Molave mixed woody scrub �Desert saltbush scrub �Desert sink scrub �Chamise chaparral �Red shank chaparral �Semi-desert chaparral �Interior live oak chaparral �Cismontane alkali marsh �Coastal and valley freshwater marsh �Southern arroyo willow riparian forest Sonoran cottonwood-willow riparian forest Mesquite bosque �Desert dry wash woodland �Desert fan palm oasis woodland outhern �camore-alder riparian woodland rrowweed scrub �Mojavean pinyon and juniper woodland �Peninsular juniper woodland and scrub Exhibit C — Page 2 EXHIBIT "D" AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF [ � TO ESTABLISH A LOCAL DEVELOPMENT MITIGATION FEE FOR FUNDING THE PRESERVATION OF NATURAL ECOSYSTEMS IN ACCORDANCE WITH THE COACHELLA VALLEY MULTIPLE SPECIES HABITAT CONSERVATION PLAN WHEREAS, the City Council of the City of []("City") finds that the ecosystems of the City, Coachella Valley and surrounding mountains located in central Riverside County, and the vegetation communities and sensitive species they support are fragile, irreplaceable resources that are vital to the general welfare af all residents; WHEREAS, these vegetation communities and natural areas contain habitat value which contributes to the City's and the region's environmental resources; WHEREAS, special protections for these vegetation communities and natural areas must be established to prevent future endangerment of the plant and animal species that are dependent upon them; WHEREAS, adoption and implementation of this Ordinance will help to enable the City to achieve the conservation goals set forth in the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP"), adopted by the City Council on . 2005, to implement the associated Implementing Agreement executed by the City Council on , 2005, and to preserve the ability of affected property owners to make reasonable use of their land consistent with the requirements of applicable laws, which could include the National Environmental Policy Act ("NEPA"), the California Environmental Quality Act ("CEQA"), the Federal Endangered Species Act ("FESA"), the California Endangered Species Act ("CESA") and the California Natural Community Conservation Planning Act ("NCCP Act"); WHEREAS, the purpose and intent of this Ordinance is to establish a Local Development Mitigation Fee to assist in the maintenance of biological diversity and the natural ecosystem processes that support this diversity; the protection of vegetation communities and natural areas within the City, Coachella Valley and surrounding mountains located in central Riverside County which are known to support threatened, endangered or key sensitive populations of plant and wildlife species; the maintenance of economic development within thc City by providing a streamlined regulatory process from which development can proceed in an orderly process; and the protection of the existing character of the City and the re�ion through the implementation of a system of reserves which will provide for permanent open space, community edges and habitat conservation for species covered by the MSHCP; WHEREAS, the findings set forth herein are based on the MSHCP and the studies referenced therein, and the estimated acquisition costs for such property as set forth in the MSHCP, a copy of which is on file in the City Clerk's office; Exhibit D— Page 1 WHEREAS, pursuant to Article 11, Section 7 of the California Constitution, the City is authorized to enact measures that protect the health, safety and welfare of its citizens; WHEREAS, pursuant to Government Code sections 66000 et seq., the City is empowered to impose fees and other exactions to provide necessary funding and public facilities required to mitigate the negative effect of new development projects; WHEREAS, on , 2005 the City Council took action on the MSHCP and the associated Implementing Agreement, and made appropriate findings pursuant to CEQA; and WHEREAS, pursuant to Govemment Code sections 66016, 66017 and 66018, the City has: (a) made available to the public, at least ten (10) days prior to its public hearing, data indicating the estimated cost required to provide the facilities and infrastructure for which these development fees are levied and the revenue sources anticipated to provide those facilities and infrastructure; (b) mailed notice at least fourteen (14) days prior to this meeting to all interested parties that have reyuested notice of new or increased development fees; and (c) held a duly noticed, regularly scheduled public hearing at which oral and written testimony was received regarding the proposed fees. NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF [ J DOES ORDAIN AS FOLLOWS: Ordinance No. and Chapter _, Section(s) _ of the City Code is hereby amended in its entirety to read as follows: SECTION 1. SHORT TITLE. This ordinance shall be known as the "Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan Mitigation Fee Ordinance." SECTION 2. FINDINGS. City Council finds and determines as follows: A. In order to implement the goals and objectives of the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP") and to mitigate the impacts caused by new development in the City, lands supporting species covered by the MSHCP must be acquired and conserved. B. A development mitigation fee (Fee) is necessary in order to supplement the financing of the acquisition of lands supporting species covered by the MSHCP and to pay for new development's fair share of this cost. C. The appropriate source of funding for the costs associated with mitigating the impacts of new development to the natural ecosystems and covered species within the City, as identified in the MSHCP, is a Fee for residential, commercial and industrial development. The amount of the Fee is determined by the nature and extent of the impacts from the development to the identified natural ecosystems and the relative cost of mitigating such impacts. Exhibit D— Page 2 D. The Fee set forth herein does not reflect the entire cost of the lands which need to be acquired in order to implement the MSHCP and mitigate the impact caused by new development. Additional revenues will be required from other sources. The City finds that the benefit to each development project is greater than the amount of the Fee to be paid by that project. E. The MSHCP and Mitigation Fee Nexus Report, a copy of which is on file in the City Clerk's office, provide the basis for the imposition of the Fee on new developments. F. The use of the Fee to mitigate the impacts to the City's natural ecosystems and covered species identified in the MSHCP which are impacted by new development are apportioned relative to the type and extent of impacts caused by the development. G. The costs of funding the proper mitigation for natural ecosystems and covered species identified in the MSHCP which are impacted by new development are apportioned relative to the type and extent of impacts caused by the development. H. The facts and evidence provided to and considered by the City Council establish that there is a reasonable relationship between the need for preserving the natural ecosystems and covered species identified in the MSHCP, and the impacts to such natural ecosystems and species created by the types of development on which the Fee will be imposed; and that there is a reasonable relationship between the Fee's use and the types of development for which the Fee is charged. This reasonable relationship is described in more detail in the MSHCP and Mitigation Fee Nexus Report. 1. The fees collected pursuant to this Ordinance shall be used to finance the acquisition of the natural ecosystems and covered species, as set forth in the MSHCP, are reasonable and will not exceed the reasonably estimated total of these costs. J. The Fees collected pursuant to this Ordinance shall be used to finance the acquisition of lands and certain improvements necessary to implement the goals and objectives of the MSHCP. K. To ensure fair implementation of the development impact fees established in this Ordinance, it may be necessary for the City to defer or waive such fees in special cases as may be permitted in accordance with procedures and guidelines established by the Coachella Valley Conservation Commission. L. Even though second units on existing single family lots may also contribute to the need for acquisition of lands necessary to implement the MSHCP, the City refrains from imposing the Fee on such development at this time, and in this regard finds that second units: (1) provide a cost effective means of serving development through the use of existing infrastructure, as contrasted to requiring the construction of new costly infrastructure to serve development in undeveloped areas; and (2) provide relatively affordable housing for low and modcratc income households without public subsidy. SECTION 3. ADMINISTRATIVE RESPONSIBILITY. The of the City shall be responsible for the administration of this Ordinance. Detailed administrative Exhibit D— Page 3 procedures concerning the implementation of this Ordinance may be established and set forth in a resolution adopted by the City Council. SECTION 4. DEFINITIONS. As used in this Ordinance, the following terms shall have the following meanings: "City" means the City of [], California. "City Council" means the City Council of the City of [], California. "Certificate of Occupancy" means a certificate of occupancy issued by the City in accordance with all applicable ordinances, regulations, and rules of the City and state law. "Credit" means a credit allowed pursuant to Section 12 of this Ordinance, which may be applied against the Fee paid. "Development Project" means any project undertaken for the purpose of development pursuant to the issuance of a building permit by the City pursuant to all applicable ordinances, regulations, and rules of the City and state law. "Final Inspection" means a final inspection of a project as defined by the building codes of the City. "Gross Acreage" means the total property area as shown on a land division map of record, or described through a recorded legal description of the property. This area shall be bounded by road right-of-way and/or legal property lines. "Local Development Mitigation Fee" or "Fee" means the development impact fee imposed pursuant to the provisions of this Ordinance. "Multiple Species Habitat Conservation Plan" or "MSHCP" means the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan, adopted by the City Council on , 2005. "Conservation Areas" has the same meaning and intent as such term is defined and utilized in the MSHCP. "Ordinance" means this Ordinance No. of the City of [], California. "Project Area" means the area, measured in acres, from the adjacent road right-ot=way line to the limits of project improvements. Project Area includes all project improvements and areas that are disturbed as a result of the project improvements on an owner's Gross Acreage, including all areas depicted on the forms required to be submitted to the City pursuant to this Ordinance and/or other applicable development ordinance or regulation of the City Except as otherwise provided herein. The Project Area is the area upon which the project will be assessed the Local Development Mitigation Fee. "Residential Unit" means a building or portion thereof used by one family and containing Exhibit D— Page 4 but one kitchen, which unit is designed or occupied for residential purposes, including singlc- family dwelling, multiple-family dwellings, and mobile homes on permanent foundations, but not including hotels and motels. "Revenue" or "Revenues" means any funds received by the City pursuant to the provisions of this Ordinance for the purpose of defraying all or a portion of the cost of acquiring and preserving vegetation communities and natural areas within the City and the region which are known to support threatened, endangered or key sensitive populations of plant and wildlife species. "Coachella Valley Conservation Commission " means the governing body established pursuant to the MSHCP that is delegated the authority to oversee and implement the provisions of the MSHCP. SECTION 5. LOCAL DEVELOPMENT MITIGATION FEE. To assist in providing Revenue to acquire and conserve lands necessary to implement the MSHCP, a Mitigation Fee shall be paid for each residential unit, Development Project or portion thereof to be constructed within the City. Five categories of the Fee are defined and include: (1) residential units, density less that 8.0 dwelling units per acre; (2) residential units, density between 8.1 and 14.0 dwelling units per acre; (3) residential units, density greater than 14.1 dwelling unites per acre; (4) commercial acreage; and (5) industrial acreage. Because there can be mixed traditional commercial, industrial and residential uses within the same project, for Fee assessment purposes only, the commercial or industrial acreage Fee shall be applied to the whole project based upon the existing underlying zoning classification of the property at the time of issuance of a building permit. The following Fee shall be paid for each Development Project to be constructed within the City. The fees are calculated using an Equivalent Benefit Unit methodology: • Residential, density less than 8.0 dwelling units per acre -$XXX per dwelling unit • Residential, density between 8.1 and 14.0 dwelling units per acre -$XXX per dwelling un�t • Residential, density greater than 14.1 dwelling units per acre -$XXX per dwelling unit • Commercial - $XXX per acre • Industrial - $XXX per acre A. The amount of the Local Development Mitigation Fee for a commercial or industrial development project required to be paid shall be based on the acreage to be developed and shall be calculated on the basis of the Project Area, in accordance with the following: 1. The Project Area shall be determined by City staff based on the subdivision map, plot plan, and other information submitted to or required by the City. 2. If the difference between the net acreage, as exhibited on the plot plan, and the Project Area is less than one-quarter acre, the Fee shall be paid on the full gross acreage. 3. An applicant may elect, at his or her own expense, to have a Project Area dimensioned, calculated, and certified by a registered civil engineer or licensed land surveyor. The engineer or land surveyor shall prepare a wet-stamped letter of certification of the Project Area dimensions and a plot plan exhibit thereto that clearly delineates the Project Area. Upon Exhibit D— Page 5 receipt of the letter of certification and plot plan exhibit, the City shall calculate the Local Development Mitigation Fee required to be paid based on the certiiied Project Area. 4. Where construction or other improvements on Project Area are prohibited due to legal restrictions on the Project Area, such as Federal Emergency Management Agency designated floodways or areas legally reyuired to remain in their natural state, that portion of the Project Area so restricted shall be excluded for the purpose of calculating the Local Development Mitigation Fee. SECTION 6. 1MPOSITION OF THE LOCAL DEVELOPMENT MITIGATION FEE. Notwithstanding any other provision of the City's Municipal Code, no permit shall be issued for any Development Project except upon the condition that the Local Development Mitigation Fee applicable to such Development Project has been paid. SECTION 7. PAYMENT OF LOCAL DEVELOPMENT MITIGATION FEE. A. The Local Development Mitigation Fee shall be paid in full at the time a certificate of occupancy is issued for the residential unit or development project or upon final inspection, whichever occurs first. No final inspection shall be made, and no certifcate of occupancy shall be issued, prior to full payment of the Fee. However, this section shall not be construed to prevent payment of the Fee prior to the issuance of an occupancy permit or final inspection. B. The Local Development Mitigation Fee shall be assessed one time per lot or parcel, except in cases of changes in land use. The Fee required to be paid when there is a change in land use shall be reduced by the amount of any previously paid fee for that property. No refunds shall be provided for changes in land use to a lower fee category. It shall be the responsibility of the applicant to provide documentation of any previously paid Fee. C. The Local Development Mitigation Fee for commercial and industrial development projects shall be paid in its entirety for the Project Area and shall not be prorated. D. The Local Development Mitigation Fee required to be paid under this Ordinance shall be the Fee in effect at the time of payment. E. There shall be no deferment of the Fee beyond final inspection or issuance of certificate(s) of occupancy. F. Notwithstanding anything in the City's Municipal Code, or any other written documentation to the contrary, the Local Development Mitigation Fee shall be paid whether or not the Development Project is subject to conditions of approval by the City imposing the requirement to pay the Fee. G. If all or part of the Development Project is sold prior to payment of the Local Development Mitigation Fee, the Project shall continue to be subject to the requirement to pay the Fee as provided herein. Exhibit D— Page 6 H. For development projects which the City does not require a final inspection or issuance of a certificate of occupancy, the Fee shall be paid prior to any use or occupancy. I. For purposes of this Ordinance, congregate care residential facilities and recreational vehicle parks shall pay the commercial acreage Fee. SECTION 8. REFUNDS. There shall be no refund of all or part of any Local Development Mitigation Fee paid under this Ordinance, except in cases of overpayment or miscalculation of the applicable Fee. Only in cases of overpayment or miscalculation of the Fee will the person or entity that paid the Local Development Mitigation Fee be entitled to a refund. SECTION 9. ACCOUNTING ANll DISBURSEMENT OF COLLECTED LOCAL DEVELOPMENT MITIGATION FEES. A. All fees paid pursuant to this Ordinance shall be deposited, accounted for, and expended in accordance with section 66006 of the Government Code and all other applicable provisions of law. B. Subject to the provisions of this section, all Fees collected pursuant to this Ordinance shall be remitted to the Coachella Valley Conservation Commission at least quarterly, and will be expended solely for the purpose of acquiring and preserving vegetation communities and natural areas within the City and the region which support species covered in the MSHCP in accordance with the provisions of the MSHCP. C. The City may recover the costs of administering the provisions of this Ordinance using the Revenues generated by the Fees, in an amount and subject to the rules and regulations established by the Coachella Valley Conservation Commission. SECTION 10. EXEMPTIONS. The following types of construction shall be exempt from the provisions of this Ordinance: A. Reconstruction of a residential unit or commercial or industrial building damaged or destroyed by fire or other natural causes. B. Rehabilitation or remodeling to an existing residential unit, commercial or industrial building, and additions to an existing residential unit or commercial or industrial building. C. Secondary residential units, constructed on developed residential property and meeting all state and City requirements for such units. D. Existing improvements that are converted from an existing permitted use to a different permitted use, provided that no additional area of the property is disturbed as a result of such conversion. E. Development within a Project Area that is currently or has been previously improved. Exhibit D— Page 7 F. Construction of a family residential unit upon property wherein a mobile-home, installed pursuant to an installation permit, was previously located prior to the effect date of this Ordinance. G. Guest dwellings as defined in Section _ of the Municipal Code. H. Additional single family residential units located on the same parcel pursuant to the provisions of any agricultural zoning classifications set forth in . I. Kennels and Catteries established in connection with an existing single family residential unit and as defined in Sections of . SECTION 11. FEE CREDITS AND WAIVERS. The City may grant to owners or developers of real property, a Credit against the Fee that would otherwise be charged pursuant to this Ordinance, for the dedication of land determined to be necessary for inclusion in the MSHCP Conservation Area. The amount of the Credit granted shall be determined by an estimate of the fair market value of the land dedicated. Any Credit granted by the City shall be given in stated dollar amounts only. An applicant for a proposed development may apply for Credit to reduce the amount of the Fee required to be paid prior to approval of the development. Any Credit granted and the amount of the Fee to be paid shall be included as a condition of approval for the development. If an applicant has received the development approval from the City and has not previously applied for a Credit to reduce the amount of the Fee required to be paid, an applicant may apply for such Credit prior to issuance of a grading permit for the development. Any Credit granted and the amount of the Fee required to be paid shall bc included as a condition of approval on the grading permit issued for the development. SECTION 12. SEVERABILITY. This Ordinance and the various parts, sections, and clauses thereof, are hereby declared to be severable. If any part, sentence, paragraph, section, or clause is adjudged unconstitutional or invalid, the remainder of this Ordinance shall not be affected thereby. If any part, sentence, paragraph, section, or clause of this Ordinance, or its application to any person entity is adjudged unconstitutional or invalid, such unconstitutionality or invalidity shall affect only such part, sentence, paragraph, section, or clause of this Ordinance, or person or entity; and shall not affect or impair any of the remaining provision, parts, sentences, paragraphs, sections, or clauses of this Ordinance, or its application to other persons or entities. The City Council hereby declares that this Ordinance would have been adopted had such unconstitutional or invalid part, sentence, paragraph, section, or clause of this Ordinance not been included herein; or had such person or entity been expressly exempted from the application of this Ordinance. Exhibit D— Page 8 SECTION 13. EFFECTIVE DATE. This Ordinance shall take effect immediately upon issuance of the appropriate permits authorizing take in connection with the MSHCP by the U.S. Fish and Wildlife Service and California Department of Fish and Game. However, in no event shall this Ordinance take effect prior to sixty (60) days after the date of its adoption. PASSED, APPROVED, AND ADOPTED, this day of 2004 by the following: ATTEST: City Clerk Mayor Exhibit D— Page 9 EXHIBIT "i" A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TO ESTABLISH PROCEDURES AND REQUIREMENTS FOR IMPLEMENTATION OF THE COACHELLA VALLEY MULTIPLE SPECIES HABITAT CONSERVATION PLAN THE CITY COUNCIL OF THE CITY OF DOES HEREBY RESOLVE AS FOLLOWS: SECTION I. TITLE This Resolution shall be known as the "Coachella Valley Multiple Species Habitat Conservation Plan Implementation Policy." SECTION II. FINDINGS AND PURPOSE A. The City Council finds that the ecosystems of the City of ("City"), the Coachella Valley and surrounding mountains located in central Riverside County and the vegetation communities and sensitive species they support are fragile, irreplaceable resources that are vital to the general welfare of all residents; these vegetation communities and natural areas contain habitat value which contributes to the region's environmental resources; and special protections for these vegetation communities and natural areas must be established to prevent future endangerment of the plant and animal species that are dependent upon them. This Resolution will protect the City's and the region's biological resources, vegetation communities, and natural areas, and prevent their degradation and loss by guiding development outside of biological resource core areas, and by establishing mitigation standards which will be applied to development projects. Adoption and implementation of this Resolution will enable the City to achieve the conservation goals set forth in the Coachella Valley Multiple Species Habitat Conservation Plan ("MSHCP"), to implement the associated Implementing Agreement executed by the City Council on , 2005, and to preserve the ability of affected property owners to make reasonable use of their land consistent with the requirements of the National Environmental Policy Act ("NEPA"), the California Environmental Quality Act ("CEQA"), the Federal Endangered Species Act ("FESA"), the California Endangered Species Act ("CESA"), the California Natural Community Conservation Planning Act ("NCCP Act"), and other applicable laws. B. The purpose and intent of this Resolution is to maintain and restore biological diversity and the natural ecosystem processes which support this diversity, to protect vegetation communities and natural areas within the City, the Coachella Valley and the surrounding mountains located in central Rivcrside County which support species covered under the MSHCP; to maintain a future of economic development within the City by providing a streamlined regulatory process from Exhibit E— Page 1 which development can proceed in an orderly process; and to protect the existing character of the City and the region through the implementation of a system of reserves which will provide for permanent open space, community edges, and habitat conservation for species covered by the MSHCP. SECTION III. APPLICATION OF REGULATIONS Except as provided in Section IV, this Resolution shall apply to all land within the City shown on the MSHCP Plan Area Map, attached as Exhibit "1" hereto. Upon application to the City for a development project, an applicant shall be required to comply with the procedures set forth in this Resolution. Upon the City's initiation of a project that is subject to CEQA, the City shall be required to comply with the procedures set forth in this Resolution. No project requiring a discretionary, or certain ministerial permits or approvals that could have adverse impacts to species covered under the MSHCP shall be approved by the City, and no City-initiated public project shall be undertaken, unless the project is consistent with the MSHCP and this Resolution. SECTION IV. EXEMPTIONS This Resolution shall not apply to the following: A. The adoption or amendment of the City's General Plan. B. The adoption or amendment of any land use or zoning ordinance. C. Any project for which and to the extent that a vesting tentative map pursuant to the Subdivision Map Act, or a development agreement pursuant to Government Code sections 65864 et seq., approved or executed prior to adoption of this Resolution, confers vested rights under the City's ordinances or state law to proceed with the project notwithstanding the enactment of this Resolution. Projects subject to this exemption must comply with all provisions of any applicable state and federal law. D. Any project for which the City Council determines that application of this Resolution would result in the property owner being deprived of ail reasonable economic use of the property in violation of federal or state constitutional prohibitions against the taking of property without just compensation. SECTION V. PROCEDURES A. The City shall ensure compliance with Conservation Area requirements and measures as set forth in Section 4 of the MSHCP. B. The City shall, impose as a condition to the City's approval of a Discretionary Project and certain ministerial Projects, such conditions as are necessary to ensure surveys are prepared for the project as required by Sections 4.3 and 4.4 of the MSHCP. Exhibit E— Page 2 C. The City shall impose as a condition to the City's approval of a project such conditions as necessary to ensure the project complies with and implements the applicable Land Use Adjacency Guidelines set forth in Section 4.5 of the MSHCP. D. The City shall ensure that public and private projects comply with the Avoidance, Minimization and Mitigation Measures set forth in Section 4.4 of the MSHCP. E. The City shall 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. F. The City shall contribute appropriate mitigation for City public projects as set forth in the MSHCP. G. The City shall participate as a member agency in the CVCC as set forth in Section 6.1.1 of the MSHCP. H. The City shall participate as a member of the RMOC as set forth in Section 6.1.3 of the MSHCP, as appropriate. I. The City shall participate in the Joint Review Process as set forth in Section 6.6.1.1 of the MSHCP for projects in the Conservation Areas. J. The City shall manage MSHCP Reserve System lands and conservation easements owned or leased by the City pursuant to Section 8 and 9 of the MSHCP. K. The City shall maintain a record of total acres developed and their location within City jurisdiction and transmit such information monthly to the CVCC. L. The City shall transmit any changes in City boundaries or general plan land use designations to the CVCC at the end of each calendar year. M. Pursuant to the MSHCP, the City may transfer any property interest acquired or obtained in fee title or as a conservation easement to the CVCC for management. The City may also grant a conservation easement to the California Department of Fish and Game for any property interest obtained pursuant to Section V of this Resolution. N. Carry out all other applicable requirements of the MSHCP. SECTION VI. DEFINITIONS herein: For purposes of this Resolution, the following terms shall have the meaning set forth Exhibit E— Page 3 A. "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. B. "Conservation Areas" means a system of lands described in Section 4.3 of the MSHCP that provide Core Habitat and Other Conserved Habitat for the Covered Species, conserve natural communities, conserve Essential Ecological Processes, and secure Biological Corridors and Linkages between major habitat areas. There are 21 Conservation Areas from which the MSHCP Reserve System wiIl be assembled. C. "MSHCP" means the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan. D. "Map of MSHCP" means the map of the area encompassed by the MSHCP as set forth in the attached Exhibit "1." E. "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. SECTION VII. EFFECTIVE DATE The Mayor shall sign this Resolution and the City Clerk shall attest thereto, and thereupon and thereafter this Resolution shall take effect and be in force according to law. PASSED, APPROVED, AND ADOPTED, this day of . 2005. Mayor ATTEST: City Clerk Exhibit E— Page 4 EXHIBIT "F" MODEL MEMORANDUM OF UNDERSTANDING FOR THE COOPERATION IN HABITAT CONSERVATION PLANNING AND MANAGEMENT FOR THE COACHELLA VALLEY MULTIPLE SPECIES HABITAT CONSERVATION PLAN/NATURAL COMMUNITY CONSERVATION PLAN [Insert Date] I, PREAMBLE The Coachella Valley Conservation Commission ("CVCC") shares a common interest with the California Department of Fish and Game ("CDFG"), the United States Fish and Wildlife Servicc ("USFWS") and the [insert party], that are signatories to this agreement ("Parties") in sustaining the integrity of regional biological and natural resource systems and the human and economic values they support. The Coachella Valley is part of a rapidly urbanizing region, and many biological and natural resource systems that were once common and extensive throughout Southern California are now rare. The challenge of mitigating the effects of urbanization is now falling on inland Southern California, including Riverside County, which has recently seen a dramatic increase in development pressures, yet still maintains a substantial presence of both valuable habitat and endangered, threatened and rare species. The Coachella Valley Multiple Species Habitat Conservation Plan ("MSHCP") is designed to meet the challenge of rapid urbanization by providing for the conservation of significant habitat and the preservation of endangered, threatened and rare species in a coordinated and efficient manner. The MSHCP Plan Area encompasses approximately 1.1 million acres. The MSHCP will serve as a Habitat Conservation Plan ("HCP") pursuant to section 10(a)(1)(b) of the Federal Endangered Species Act ("FESA"), as well as a Natural Community Conservation Plan ("NCCP") under the NCCP Planning Act (California Fish & Game Code §§ 2800 et seq.). Instead of piecemeal mitigation efforts, the MSHCP will provide large contiguous blocks of habitat to more effectively ensure the survival of targeted endangered, threatened and rare species. Area developers will benefit from the assurance provided by the USFWS and CDFG, as well as a streamlined process for complying with applicable federal and state mandates. The citizens of Riverside County and the participating Cities will further benefit from this planned growth because it will create new economic opportunities, preserve important open space, and encourage continued recreational activities while maintaining the area's quality of life. II. PURPOSE OF THE AGREEMENT Efforts to coordinate conservation programs among tocal, state, and federai agencies in California are well-established. In 1991, The Agreement on Biological Diversity created an executive council on biological diversiry. Cooperation among the agreement's forty members, including federal, state, and local representatives, exemplifies California's commitment to cooperative ecosystem management. This Memorandum of Understanding ("MOU") builds on Exhibit F— Page 1 this example by establishing a partnership between the CVCC, CDFG, USFWS and the [insert party] to cooperate in the implementation of the MSHCP. This MOU encourages the exchange of information regarding Existing Conservation Lands, defined by the MSHCP as 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. Further, this MOU provides an agreement for jointly managing the MSHCP Conservation Area and Public/Quasi-Public ("PQP") lands for the benefit of Covered Species. Finally, this MOU provides a method for resolving disputes between Parties to this MOU. II[. AUTHORITY This MOU does not modify or supercede existing statutory direction of the signatories. IV. POLICIES AND PRINCIPLES This MOU recognizes the following set of policies and principles: A. [Party] agrees to coordinate with the other Parties to this MOU regarding lands within the MSHCP Plan Area. 1. The CVCC, USFWS, and/or CDFG agree to provide any available digital files and hard copy maps of such lands to the same upon request. [Party] likewise agrees to provide the CVCC, USFWS and CDFG with any available digital files and hard copy maps of the same. 2. [Party] further agrees to provide any further information they possess regarding types of vegetation and quality of vegetation on the lands they manage within the MSHCP Plan Area to the CVCC, USFWS and CDFG or the MSHCP Reserve Oversight Management Committee ("RMOC"). B. [Party] agrees to participate fully as a member of the RMOC as set forth in Section 6.1.3 of the MSHCP. C. [Party] agrees to work with the other Parties to this MOU and the RMOC to ensure the development of a coordinated approach for managing existing conservation lands in a cooperative manner consistent with the goals and objectives of the MSHCP. D. If any land management prescriptions of [Party] are found to be inconsistent with MSHCP objectives and requirements, the Parties will work collaboratively to resolve the inconsistencies. 1. The Parties will make every effort to expeditiously resolve any disagreements. If a resolution cannot be accomplished promptly during regularly scheduled meetings and conference calls, a further attempt to reach resolution will be promptly attempted in a interim meeting or conference call dedicated to the purpose of resolving the disagreement. Exhibit F— Page 2 2. If, after completing an interim meeting or conference call, the Parties cannot reach agreement on any issue, including but not limited to management of PQP lands within the MSHCP Plan Area, all Parties agrce to elevate the decision to successively higher levels within each organization until consensus is reached. V. MODIFICATIONS The MOU is to remain in effect until modified by the Parties in writing; it is negotiable at the option of any of the Parties. IN WITNESS WHEREOF, the Parties hereto have executed this Memorandum of Understanding on the date first herein written above. UN[TED STATES DEPARTMENT OF COACHELLA VALLEY CONSERVATION INTERIOR, FISH AND WILDLIFE SERVICE COMMISSION By: By: Deputy Manager Executive Director California/Nevada Operations Office CALIFORNIA DEPARTMENT OF F1SH [TO BE INSERTED� AND GAME By: BY� Deputy Director Habitat Conservation Division Exhibit F— Page 3 EXHIBIT "G" MODEL CERTIFICATE OF INCLUSION The United States Fish and Wildlife Service and the California Department of Fish and Game have issued Permits pursuant to the federal Endangered Species Act and the California Natural Community Conservation Planning Act (collectively "Permits") authorizing "Take" of certain species in accordance with the terms and conditions of the Permits, the Coachella Valley Multiple Species Habitat Conservation Plan ("MSHCP") and the associated Implementing Agreement. Under the Permits, certain activities by [appropriate party or entity] are authorized to "Take" certain species, provided all applicable terms and conditions of the Permits, the MSHCP and the associated Implementing Agreement are met. As the owner/operator of the property depicted on Exhibit "1," attached hereto and incorporated herein by this reference, you are entitled to the protection of the Permits for the proposed activities as set forth in Exhibit "2," with respect to any Take of species as identified in the MSHCP. In the event that you use the property depicted on Exhibit "1" for other purposes without the express consent of the [appropriate Permittee], Take Authorization under the Permits will automatically cease. Such Authorization is provided as described in the Permits, the MSHCP and the Implementing Agreement. By signing this Certificate of Inclusion, you signify your election to receive Take Authorization under the Permits in accordance with the terms and conditions thereof. This Certificate of Inclusion does not give state and federal agencies additional regulatory control over the signatory nor require the signatory to provide additional information not called for in the Certificate of Inclusion, but instead ensures compliance with 50 Code of Federal Regulations, section 13.25(d). Coverage under the Permits will become effective upon receipt of the executed Certificate of Inclusion by Coachella Valley Conservation Commission ("CVCC"). In the event that the subject property is sold or leased, the buyer or lessee must be informed of these provisions and execute a new Certificate of Inclusion. Address Signature Title (if any) Phone CVCC Representative Exhibit G— Page 1 Ex�uB�T "H" MODEL CONSERVATION EASEMENT RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) ) State of California ) Wildlife Conservation Board ) 1807 13th Street, Suite 103 ) Sacramento, CA 95814 ) ) Space Above Line for Recorder's Use Only CONSERVATION EASEMENT DEED THIS CONSERVATION EASEMENT DEED is made this day of , 20 , by ("Grantor"), in favor of THE STATE OF CALIFORNIA ("Grantee"), acting by and through its Department of Fish and Game, a subdivision of the California Resources Agency, with reference to the following facts: RECITALS A. Grantor is the sole owner in fee simple of certain real property in the County of Riverside, State of California, designated Assessor's Parcel Number and more particularly described in Exhibit "A" attached hereto and incorporated herein by this reference (the "Property"); B. The Property possesses wildlife and habitat values (collectively, "conservation values") of great importance to Grantee, the people of the State of California and the people of the United States; C. The Property provides high quality habitat for [list plant and/or animal species] and contains [list habitats; native and/or non-native]; D. The Department of Fish and Game ("DFG") has jurisdiction, pursuant to California Fish and Game Code section 1802, over the conservation, protection, and management of fsh, wildlife, native plants and the habitat necessary for biologically sustainable populations of those species, and the Department of Fish and Game is authorized to hold easements for these purposes pursuant to Civil Code section 815.3, Fish and Game Code section 1348, and other provisions of California law; Exhibit H — Page 1 R V PU Ii\MO\662308 E. The United States Fish & Wildlife Service ("USFWS") 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 the Federal Endangered Species Act, 16 U.S.C. § 1531, et seq. ("FESA"), and other federal laws; and F. This Conservation Easement provides mitigation for certain impacts of [describe project] located in the City of [], County of Riverside, State of California, pursuant to [California Natural Community Conservation Planning Act Permit] dated []("NCCP Permit"), Permit # dated [], issued by USFWS pursuant to section 10(a) of the FESA ("Section 10(a) Permit"), and the corresponding Implementing Agreement and Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan ("MSHCP") dated []. The Section 10(a) Permit, the NCCP Permit, the Implementing Agreement, and the MSHCP are all incorporated herein by this reference. Information regarding these documents may be obtained from the USFWS and the DFG, for each respective permit, and from Coachella Valley Conservation Commission ("CVCC") regarding the Implementing Agreement and the MSHCP. Contact information for USFWS and DFG is provided in the notice provision in section 13 of this Conservation Easement. The CVCC may be contacted at 73-710 Fred Waring Drive, Suite 200, Palm Desert, California 92260, Telephone: 760-346-1127. COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and pursuant to California law, including Civil Code sections 815, et seq., Grantor hereby voluntarily grants and conveys to Grantee a conservation easement in perpetuity over the Property. 1. Purpose. The purpose of this Conservation Easement is to ensure the Property will bc retained forever in a natural condition and to prevent any use of the Property that will impair or interfere with the conservation values of the Property. Grantor intends that this Conservation Easement will confine the use of the Property to such activities, including, without limitation, those involving the preservation and enhancement of native species and their habitat in a manner consistent with the habitat conservation purposes of this Conservation Easement. 2. Grantee's Rights. To accomplish the purposes of this Conservation Easement, Grantor hereby grants and conveys the following rights to Grantee, and to USFWS as a third party benefciary hereof, or their designee: (a) To preserve and protect the conservation values of the Property; (b) To enter upon the Property at reasonable times in order to monitor Grantor's compliance with and to otherwise enforce the terms of this Conservation Easement, and for scientific research and interpretive purposes by Grantee or its designees, provided that Grantee shall not unreasonably interfere with Grantor's authorized use and quiet enjoyment of the Property; Exhibit H — Page 2 R V PUB\MO\662308 (c) To enter upon the Property at reasonable times to carry out management and monitoring consistent with the conservation goals, monitoring program, and management plans for the MSHCP; (d) To prevent any activity on or use of the Property that is inconsistent with the purposes of this Conservation Easement and to require the restoration of such areas or features of the Property that may be damaged by any act, failure to act, or any use that is inconsistent with the purposes of this Conservation Easement; (e) All mineral, air and water rights necessary to protect and to sustain the biological resources of the Property; and ( fl All present and future development rights. 3. Prohibited Uses. Any activity on or use of the Property inconsistent with the purposes of this Conservation Easement is prohibited. Without limiting the generality of the foregoing, the following uses by Grantor, Grantor's agents, and third parties, are expressly prohibited: (a) Unseasonal watering; use of fertilizers, pesticides, biocides, herbicides or other agricultural chemicals; weed abatement activities; incompatible fire protection activities; and any and all other activities and uses which may adversely affect the purposes of this Conservation Easement; (b) Use of off-road vehicles and use of any other motorized vehicles except on existing roadways; (c) Grazing or other agricultural activity of any kind; (d) Recreational activities including, but not limited to, horseback riding, biking, hunting or fishing, except as may be specifically permitted under this Conservation Easement; (e) �� Commercial or industrial uses; Any legal or de facto division, subdivision or partitioning of the Property; (g) Construction, reconstruction or placement of any building, billboard or sign, or any other structure or improvement of any kind; (h) any other materials; (i) spcc�es; Depositing or accumulation of soil, trash, ashes, refuse, waste, biosolids or Planting, introduction or dispersal of non-native or exotic plant or animal (j) Filling, dumping, excavating, draining, dredging, mining, drilling, removing or exploring for or extraction of minerals, loam, soil, sands, gravel, rocks or other material on or below the surface of the Property; RVPliBVv10\66230R Exhibit H — Page 3 (k) Altering the surface or general topography of the Property, including building of roads; (1) Removing, destroying, or cutting of trees, shrubs or other vegetation, except as required by law for: fire breaks; maintenance of existing foot trails or roads; prevention or treatment of disease; or control of non-native or exotic plants; and (m) Manipulating, impounding or altering any natural water course, body of water or water circulation on the Property, and activities or uses detrimental to water quality, including but not limited to, degradation or pollution of any surface or subsurface waters. 4. Grantor's Duties. Grantor shall undertake all reasonable actions to prevent the unlawful entry and trespass by persons whose activities may degrade or harm the conservation values of the Property. In addition, Grantor shall undertake al] necessary actions to perfect Grantee's rights under Section 2 of this Conservation Easement, including but not limited to, Grantee's water rights. 5. Reserved Rights. Grantor reserves to itself, and to its personal representatives, heirs, successors, and assigns, all rights accruing from its ownership of the Property, including the right to engage in or to permit or invite others to engage in all uses of the Property that are consistent with the purposes of this Conservation Easement. 6. Grantee's Remedies. If Grantee determines that Grantor is in violation of the terms of this Conservation Easement or that a violation is threatened, Grantee shall give written notice to Grantor of such violation and demand in writing the cure of such violation. If Grantor fails to cure the violation within fifteen (15) days after receipt of written notice and demand from Grantee, or if the cure reasonably requires more than fifteen (15) days to complete and Grantor fails to begin the cure within the 15-day period or fails to continue diligently to complete the cure, Grantee may bring an action at law or in equity in a court of competent jurisdiction to enforce compliance by Grantor with the terms of this Conservation Easement, to recover any damages to which Grantee may be entitled for violation by Grantor of the terms of this Conservation Easement or for any injury to the conservation values of the Property, to 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, including, but not limited to, the restoration of the Property to the condition in which it existed prior to any such violation or injury. Prior to implementation of any remedial or restorative actions, Grantor shall consult with the USFWS and DFG. Without limiting Grantor's liability therefore, Grantee may apply any damages recovered to the cost of undertaking any corrective action on the Property. If Grantee, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate damage to the conservation values of the Property, Grantee may pursue its remedies under this Section 6 without prior notice to Grantor or without waiting for the period provided for cure to expire. Grantee's rights undcr this section apply equally to actual or threatened violations of the terms of this Conservation Easement. Grantor agrees that Grantee's remedies at law for any violation of the terms of this Conservation Easement are inadequate and that Grantee shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which Grantee may be entitled, including specific performance of the terms of this Conservation RV PL' I3Vv10\G6230R Exhibit H — Page 4 Easement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. Grantee's remedies described in this section shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including but not limited to, the remedies set forth in Civil Code sections 815, et seq., inclusive. The failure of Grantee to discover a violation or to take immediate legal action shall not bar Grantee from taking such action at a later time. If at any time in the future Grantor, Grantee, or any successor in interest uses or threatens to use the Property for purposes inconsistent with this Conservation Easement, or Grantee or any successor in interest releases or abandons this Conservation Easement in whole or in part, then, notwithstanding Civil Code section 815.7, the California Attorney General, USFWS, or any entity or individual with a justifiable interest in the preservation of this Conservation Easement has standing as interested parties in any proceeding affecting this Conservation Easement. 6.1 Costs of Enforcement. Any costs incurred by Grantee, where Grantee is the prevailing party, in enforcing the terms of this Conservation Easement against Grantor, including, but not limited to, costs of suit and attorneys' and experts' fees, and any costs of restoration necessitated by Grantor's negligence or breach of this Conservation Easement shall be borne by Grantor. 6.2 Grantee's Discretion. Enforcement of the terms of this Conservation Easement by Grantee shall be at the discretion of Grantee, and any forbearance by Grantee to exercise its rights under this Conservation Easement in the event of any breach of any term of this Conservation Easement by Grantor shall not be deemed or construed to be a waiver by Grantee of such term or of any subsequent breach of the same or any other term of this Conservation Easement or of any of Grantee's rights under this Conservation Easement. No delay or omission by Grantee in the exercise of any right or remedy upon any breach by Grantor shall impair such right or remedy or be construed as a waiver. 6.3 Acts Beyond Grantor's Control. Nothing contained in this Conservation Easement shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Property resulting from: (a) any natural cause beyond Grantor's control, including, without limitation, fire not caused by Grantor, flood, storm, and earth movement, or any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes; or (b) acts by Grantee or its employees. 6.4 Department of Fish and Game and USFWS Right of Enforcement. All rights and remedies conveyed to Grantee under this Conservation Easement Deed shall extend to and are enforceable by the Department of Fish and Game and USFWS. These rights are in addition to, and do not limit, the rights of enforcement under [insert title of permits/Agreement described in Recital F, above]. 7. Fence Installation and Maintenance. Grantor shall install and maintain a fence reasonably satisfactory to Grantee and USFWS around the Conservation Easement area to protect the conservation values of the Property, including but not limited to wildlife corridors. Access. This Conservation Easement does not convey a general right of access to the public. Exhibit H — Page 5 R V PUB\MO\662308 9. Costs and Liabilities. Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Property. Grantor agrees that Grantee shall have no duty or responsibility for the operation or maintenance of the Property, the monitoring of hazardous conditions thereon, or the protection of Grantor, the public or any third parties from risks relating to conditions on the Property. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Conservation Easement Deed, and any activity or use shall be undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements. 9.1 Taxes; No Liens. Grantor shall pay before delinquency all taxes, assessments, fees, and charges of whatever description levied on or assessed against the Property by competent authority (collectively "taxes"), including any taxes imposed upon, or incuned as a result of, this Conservation Easement, and shall furnish Grantee with satisfactory evidence of payment upon request. Grantor shall keep Grantee's interest in the Property free from any liens, including those arising out of any obligations incurred by Grantor or any labor or materials furnished or alleged to have been furnished to or for Grantor at or for use on the Property. 9.2 Hold Harmless. Grantor shall hold harmless, protect and indemnify Grantee and its directors, offcers, employees, agents, contractors, and representatives and the heirs, personal representatives, successors and assigns of each of them (each an "Indemnified Party" and, collectively, "Indemnified Parties") from and against any and all liabilities, penalties, costs, losses, damages, expenses (including, without limitation, reasonable attorneys' fees and experts' fees), causes of action, claims, demands, orders, liens or judgments (each a"Claim" and, collectively, "Claims"), arising from or in any way connected with: (a) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Properly, regardless of cause, unless due solely to the negligence of Grantee or any of its employees; (b) the obligations specified in Sections 4, 9, and 9.1; and (c) the existence or administration of this Conservation Easement. If any action or proceeding is brought against any of the Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from Grantee, defend such action or proceeding by counsel reasonably acceptable to the Indemnified Party or reimburse Grantee for all charges incurred for services of the Attorney General in defending the action or proceeding. 9.3 Condemnation. The purposes of the Conservation Easement are presumed to be the best and most necessary public use as defined at Code of Civil Procedure section 1240.680 notwithstanding Code of Civil Procedure sections 1240.690 and 1240.700. 10. Assignment. This Conservation Easement is transferable, but Grantee or any successor in interest shall give Grantor, USFWS, and DFG, if applicable, at least thirty (30) days prior written notice of the transfer. Grantee or any successor in interest may assign its rights and obligations under this Conservation Easement only in a form reasonably approved in writing by both DFG and USFWS in favor of an entity or organization authorized to acquire and hold conservation easements pursuant to Civil Code section 815.3. Grantee or any successor in interest shall require the assignee to agree in writing that the conservation purposes that this grant is intended to advance shall continue to be fulfilled by such assignee in accordance with the NCCP Permit and R V PUB\MO\662308 Exhibit H — Page 6 the Section 10(a) Permit and shall require the assignee to record the assignment in the county where the Property is located. I 1. Release or Abandonment. Grantee or any successor in interest shall not release, modify, relinquish or abandon its rights and obligations under this Conservation Easement without the prior written consent of USFWS and DFG. 12. Subsequent Transfers. Grantor agrees to incorporate the terms of this Conservation Easement in any deed or other legal instrument by which Grantor divests itself of any interest in all or any portion of the Property, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee and USFWS of the intent to transfer any interest at least thirty (30) days prior to the date of such transfer. Grantee shall have the right to prevent subsequent transfers in which prospective subsequent claimants or transferees are not given notice of the covenants, terms, conditions and restrictions of this Conservation Easement. The failure of Grantor or Grantee to perform any act provided in this section shall not impair the validity of this Conservation Easement or limit its enforceability in any way. 13. Notices. Any notice, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and be served personally or sent by recognized overnight courier that guarantees next-day delivery or by first class mail, postage fully prepaid, addressed as follows: To Grantor: To Grantee: Department of Fish and Game Region _ [Region's address] Attn: Regional Manager With a copy to: Department of Fish and Game Office of the General Counsel 1416 Ninth Street, 12th Floor Sacramento, California 95814-2090 Attn: General Counsel To USFWS: U.S. Fish and Wildlife Office Attn: Field Supervisor 6010 Hidden Valley Road Carlsbad, CA 92011 or to such other address as either party shall designate by written notice to the other. Notice shall be deemed effective upon delivery in the case of personal delivery or delivery by overnight courier or, in the case of delivery by first class mail, five (5) days after deposit into the United States mail. 14. Amendment. This Conservation Easement may be amended by Grantor and Grantee only by mutual written agreement. Any such amendment shall be consistent with the purposes of this Exhibit H — Page 7 R V PU E3Uv10\662308 Conservation Easement and shall not affect its perpetual duration. Any such amendment shall be recorded in the official records of Riverside County, State of California. 15. General Provisions. (a) Controlling Law. The interpretation and performance of this Conservation Easement shall be governed by the laws of the State of California, disregarding the conflicts of law principles of such state. (b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Conservation Easement shall be liberally construed to effect the' purposes of this Conservation Easement and the policy and purpose of Civil Code sections 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the purposes of this Conservation Easement that would render the provision valid shall be favored over any interpretation that would render it invalid. (c) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Conservation Easement Deed, such action shall not affect the remainder of this Conservation Easement Deed. If a court of competent jurisdiction voids or invalidates the application of any provision of this Conservation Easement Deed to a person or circumstance, such action shall not affect the application of the provision to other persons or circumstances. (d) Entire Agreement. This instrument sets forth the entire agreement of thc parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Conservation Easement. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 13. (e) No Forfeiture. Nothing contained herein will result in a forfeiture or reversion of Grantor's title in any respect. (� Successors. The covenants, terms, conditions, and restrictions of this Conservation Easement Deed shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Property. (g) Termination of Rights and Obligations. A party's rights and obligations under this Conservation Easement terminate upon transfer of the party's interest in the Conservation Easement or Property, except that liability for acts or omissions occurring prior to transfer shall survive transfer. (h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation. (i) No Hazardous Materials Liability. Grantor represents and warrants that it has no knowledge of any release or threatened release of Hazardous Materials (defined below) Exhibit H — Page 8 R V PUB\M 0�662308 in, on, under, about or affecting the Property. Without limiting the obligations of Grantor under Section 9.2, Grantor agrees to indemnify, protect and hold harmless the Indemnifed Parties (defined in Section 9.2) against any and all Claims (defined in Section 9.2) arising from or connected with any Hazardous Materials present, alleged to be present, or otherwise associated with the Property at any time, except any Hazardous Materials placed, disposed or released by Grantee, its employees or agents. If any action or proceeding is brought against any of the Indemnified Parties by reason of any such Claim, Grantor shall, at the election of and upon written notice from Grantee, defend such action or proceeding by counsel reasonably acceptable to the Indemnified Party or reimburse Grantee for all charges incurred for services of the Attorney General in defending the action or proceeding. Despite any contrary provision of this Conservation Easement Deed, the parties do not intend this Conservation Easement to be, and this Conservation Easement shall not be, construed such that it creates in or gives to Grantee any of the following: (1) The obligations or liabilities of an "owner" or "operator," as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. sections 9601 et seq.; hereinafter, "CERCLA"); or (2) The obligations or liabilities of a person described in 42 U.S.C. section 9607(a)(3) or (4); or (3) The obligations of a responsible person under any applicable Environmental Laws; or (4) The right to investigate and remediate any Hazardous Materials associated with the Property; or (5) Any control over Grantor's ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property. The term "Hazardous Materials" includes, without limitation, (a) material that is flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA, the Hazardous Materials Transportation Act (49 U.S.C. sections 6901 et seq.); the Hazardous Waste Control Law (California Health & Safety Code sections 25100 et seq.); the Hazardous Substance Account Act (California Health & Safety Code section 25300 et seq.), and in the regulations adopted and publications promulgated pursuant to them, or any other applicable federal, state or local laws, ordinances, rules, regulations or orders now in effect or enacted after the date of this Conservation Easement Deed. The term "Environmental Laws" includes, without limitation, any federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Grantor represents, warrants and covenants to Grantee that Grantor's activities upon and use of the Property will comply with all Environmental Laws. (j) Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, encumbrances or other interests in the Property which have not been expressly Exhibit H — Page 9 RVPUR�MO\6G2308 subordinated to this Conservation Easement Deed, and that the Property is not subject to any other conservation easement. (k) Additional Easements. Grantor shall not grant any additional easements, rights of way or other interests in the Property (other than a security interest that is subordinate to this Conservation Easement Deed), or grant or otherwise abandon or relinquish any water agreement relating to the Property, without first obtaining the written consent of Grantee. Grantee may withhold such consent if it determines that the proposed interest or transfer is inconsistent with the purposes of this Conservation Easement or will impair or interfere with the conservation values of the Property. This Section 14(k) shall not prohibit transfer of a fee or leasehold interest in the Property that is subject to this Conservation Easement Deed and complies with Section 11. (1) Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by both parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shal] be controlling. IN WITNESS WHEREOF Grantor has executed this Conservation Easement Deed the day and year first above written. GRANTOR: Approved as to form: BY: Genera] Counsel State of California NAME: Department of Fish and Game TITLE: BY: DATE: CERTIFICATE OF ACCEPTANCE This is to certify that the interest in real property conveyed by the Conservation Easement Deed by , dated . to the State of California, grantee, acting by and through its Department of Fish and Game (the "Department"), a governmental agency (under Government Code section 27281), is hereby accepted by the undersigned officer on behalf of the Exhibit H — Page 10 R V PU I3Uv10\662308 Department, pursuant to authority conferred by resolution of the California Fish and Game Commission on . GRANTEE: STATE OF CALIFORNIA, by and through its DEPARTMENT OF FISH AND GAME By: Title: Authorized Representative Date: RVPUE3\708400. I Exhibit I-i — Page 11 R V PL; R\MO\662308 (This page is intentionally blank) RESOLUTION NO. 06-28 EXHIBIT ��A" (Coachella Valley Association of Governments Resolution No. 06-002) RMPUQ\RHARGREAV ES�265886.1 RESOLUTION NO. 06-28 RESOLUTION NO. 06-002 CERTIFYING THE FINAL ENVIRONMENTAL IMPACT REPORT FOR THE COACHELLA VALLEY MULTIPLE SPECIES HABITAT CONSERVATION PLAN, APPROVING THE COACHELLA VALLEY MULTIPLE SPECIES HABITAT CONSERVATION PLAN / NATURAL COMMUNITY CONSERVATION PLAN, IMPLEMENTING AGREEMENT, AND THE MITIGATION, MONITORING AND REPORTING PROGRAM, AND SELECTING THE PREFERRED ALTERNATIVE WHEREAS, the Coachella Valley Association of Governments ("CVAG") has prepared, in cooperation and coordination with the California Department of Fish and Game ("CDFG"), United States Fish and Wildlife Service ("USFWS"), the Cities of Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs and Rancho Mirage, the County of Riverside, Riverside County Flood Control, Riverside County Parks, Riverside County Waste Resources Management District, the Imperial Imgation District ("IID"), the Coachella Valley Water District ("CVWD"), California Department of Transportation, California Department of Parks and Recreation, the Coachella Valley Mountains Conservancy, and other governmental agencies, property owners, Development interests, environmental interest groups and other members of the public, a comprehensive Multiple Species Habitat Conservation Plan/Natural Community Conservation Plan for the Coachella Valley in Riverside County ("MSHCP or Plan"); and WHEREAS, the Coachella Valley MSHCP is a regional, comprehensive, multi- jurisdictional Habitat Conservation Plan focusing on Conservation of Federal and State-Listed Species, other rare and sensitive species, and their Habitats, while maintaining opportunities for recreation and a strong and sustainable environment for economic Development in the region; and RMPUB\Rf IARGREAVLS�265886.1 S RESOLUTION NO. 06-28 WHEREAS, the MSHCP boundary ("MSHCP Plan Area") encompasses approximately 1,850 square miles, consisting of approximately l.l million acres, extending eastward from the Western Riverside County Multiple Species Habitat Conservation Plan boundary line in Cabazon where it is bounded by the range line common to Range 1 East and Range 2 East, bounded by the San Bernardino County line and the Little San Bernardino Mountains on the north and northeast; the ridgeline of the San Jacinto and Santa Rosa Mountains on the west and southwest; the boundary line with San Diego and Imperial Counties to the south; and bounded by the Chocolate Mountains Aerial Gunnery Range and the range line common to Range 13 East and Range 14 East on the east; and containing the cities of: Cathedral City, Coachella, Desert Hot Springs, Indian Wells, Indio, La Quinta, Palm Desert, Palm Springs, and Rancho Mirage; and WHEREAS, the MSHCP establishes a framework for compliance with State and Federal Endangered Species regulations while accommodating future growth in the MSHCP Plan Area, including issuance of "Take" Permits for certain species pursuant to Section 10(a)(1)(B) of the Federal Endangered Species Act ("ESA") and Section 2800, et seq. of the California Fish and Game Code (otherwise known as the "Natural Community Conservation Planning Act" or "NCCP Act of 2001"); and WHEREAS, CVAG is the lead agency pursuant to the California Environmental Quality Act ("CEQA") (Public Res. Code, § 21000 et seq.) and the State CEQA Guidelines (14 CCR § 15000 et seq.), and the USFWS is the Federal lead agency under the National Environmental Policy Act ("NEPA") (40 C.F.R. 1508.16, 1508.17) (CVAG and USFWS will collectively be referred to hereinafter as "Lead Agencies"); and RMPUB\RHARGREAV[:S�265886.1 6 RESOLUTION NO. 06-28 WHEREAS, a joint Environmental Impact Report/Statement ("EIR/EIS") has been prepared pursuant to CEQA and NEPA which provides a comprehensive assessment of the potential environmental impacts that could result from the adoption and implementation of the proposed MSHCP, and provides the appropriate decision-makers with the required information upon which to base a decision to adopt the MSHCP; and WHEREAS, CVAG filed a Notice of Preparation ("NOP") of a Draft EIR/EIS with the State Clearinghouse on June 19, 2000. The NOP was also distributed to each responsible and trustee agency (and any federal agency involved in approving or funding the project) pursuant to State CEQA Guidelines Sections 15082(a) and 15373, and was circulated for a period of 30 days, pursuant to State CEQA Guidelines Sections 15082(b) and 15103; and WHEREAS, pursuant to State CEQA Guidelines Section 15082, the Lead Agencies solicited comments from potential responsible agencies, including details about the scope and content of the environmental information related to the responsible agency's arca of statutory responsibility, as well as the significant environmental issues, reasonable alternatives and mitigation measures that the responsible agency would need to have analyzed in the Draft EIR/EIS;and WHEREAS, approximately 29 written comments were received by the Lead Agencies in response to the NOP, that assisted the Lead Agencies in narrowing the issues and alternatives for analysis in the Draft EIR/EIS; and WHEREAS, pursuant to State CEQA Guidelines Sections 15085 and 15372, the Draft EIR/EIS was completed and released for public review, and a Notice of Completion ("NOC") was filed at the State Clearinghouse and with the Riverside County Clerk on or about November RMPUI3\RHARGRBAVES�265886.1 % RESOLUTION NO. 06-28 8, 2004, and a copy of the NOC was published in the Desert Sun on or about November 5, 2004. The NOC provided a summary of the Plan and its alternatives and a deadline for submittal of comments, and a list of 23 locations and the internet address where a copy of the Plan could be viewed; and WHEREAS, on February 10, 2005, the Lead Agencies published a Notice of Extension of the review and comment period in the Desert Sun notifying the public that the comment period was being extended until March 7, 2005; and WHEREAS, in February 2005, CVAG sent a letter to each property owner of record ("Property Owner Letter") within the Conservation Areas of the Plan notifying them that the Draft MSHCP, Implementing Agreement ("IA"), and EIR/EIS were available for review. As a result of the issuance of the Property Owner Letter, CVAG has consulted with more than 400 property owners; and WHEREAS, during the official public review period for the Draft EIR/EIS, the Lead Agencies received over 310 written and oral comments; and WHEREAS, pursuant to California Public Resources Code Section 21092.5, CVAG provided written responses to comments from all commenting agencies; and WHEREAS, the Lead Agencies prepared the Final EIR/EIS and, pursuant to Public Resources Code Section 21092.5, CVAG provided copies of the Final EIR to all commenting agencies; and WHEREAS, CVAG, at a public meeting on February 6, 2006, reviewed thc Final EIR/EIS, MSHCP/Natural Communities Conservation Plan ("NCCP"), IA, Mitigation, RMPUD\RHARGRI:AVES�265886.1 g RESOLUTION NO. 06-28 Monitoring and Reporting Program ("MMRP"), and other related documents in the record before it; and WHEREAS, as contained herein, CVAG has endeavored in good faith to set forth the basis for its decision on the Project; and WHEREAS, all of the findings and conclusions made by CVAG pursuant to this Resolution are based upon the oral and written evidence presented to it as a whole; and WHEREAS, no comments made in the public hearings conducted by the Lead Agencies or any additional information submitted have produced substantial new information requiring recirculation or additional environmental review under State CEQA Guidelines Section 15088.5; and WHEREAS, all the procedures of CEQA and the State CEQA Guidelines have been met, and the Final EIR/EIS, prepared in connection with the Project, is sufficiently detailed so that all potentially significant effects of the Project on the environment and measures necessary to avoid or substantially lessen such effects have been evaluated in accordance with the above-referenced Act and its Guidelines; now, therefore, BE IT RESOLVED, FOUND, DETERMINED, AND ORDERED by the CVAG Executive Committee on February 6, 2006, that: A. Certain plant and animal species and Habitat exist, or may exist, within the MSHCP Plan Area, which are: 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 RM PU B\RHAItGREA V ES�265886.1 9 RESOLUTION NO. 06-28 California Specially Protected Species, a sensitive plant species as determined by the California Native Plant Society, or other unlisted wildlife considered to be sensitive. B. Future growth and land Development within the MSHCP Plan Area, including both public and private projects, may result in impacts to 27 species ("Covered Species") identified in the Plan and its associated documents, elcven of which are listed under the ESA or the California Endangered Species Act ("CESA"). Thus, Take Authorization is required prior to the carrying out of otherwise lawful activities that may "Take" one or more of these Covered Species. C. The MSHCP establishes the conditions under which entities defined under the Plan and its associated documents as "Permittees" will receive certain long-term Take Authorizations and other assurances that will allow the taking of Covered Species incidental to ]awfu] uses authorized by the Permittees; and D. The MSHCP provides for the assembly and management of a reserve for the Conservation of natural Habitat and its constituent wildlife populations, and establishes an overall Conservation Strategy for the MSHCP Plan Area that will guarantee the protection of the Covered Species. The Conservation Strategy includes the Conservation of the Covered Species, existing Habitat, the restoration of degraded Habitat, managing a Reserve System, and conducting biological monitoring in perpetuity. E. The final MSHCP provides for the creation of a Reserve System that will conserve and manage approximately 724,740 acres of Habitat for the 27 Covered RMPUB\RHAKGRf:AVLS�265886.1 1 O RESOLUTION NO. 06-28 Species which includes approximately 534,200 acres of Existing Reserves (as of 2003) and 190,540 acres of Complementary Conservation and Additional Conservation Lands. (Final MSHCP Errata, Table 4-1.) F. The MSHCP will serve as a Habitat Conservation Plan ("HCP") pursuant to Section 10(a)(1)(B) of the ESA, as well as an NCCP pursuant to the NCCP Act of 2001, as amended. The approval of the MSHCP and execution of the IA allows the CDFG and USFWS (collectively, the "Wildlife Agencies") to issue Take Authorizations for Covered Species in the MSHCP Plan Area to the signatories of the IA. G. The MSHCP provides Take Authorization for Covered Activities for the Covered Species. The MSHCP is "self-mitigating," meaning that most Project impacts are reduced to below a level of significance as a result of implementation of MSHCP components. Additionally, implementation of the management and Monitoring Programs outlined in the MSHCP will further reduce al] the potential impacts/consequences of the MSHCP. BE IT FURTHER RESOLVED by CVAG that the Final EIR/EIS and the evidence in the administrative record before it confirms that implementation of the MSHCP will result in no significant adverse environmental impacts. For several impact areas, including Biological Resources, Land Use and Planning, and Recreation, a separate component analyzing the Revised Trails Plan is included. A. Aesthetics (excluding Revised Trails Plan) RMPUB\RHARGREAV ES�265886.1 1 1 RESOLUTION NO. 06-28 The MSHCP will result in the Conservation of approximately 724,740 acres of Habitat and protect an array of scenic resources, thereby having a positive or beneficial impact on aesthetics. (Final MSHCP Errata, Table 4-1; Final EIR/EIS, p. 4-199.) The aesthetic impacts potentially associated with the implementation of the MSHCP are primarily limited to those associated with the construction of new trails and interpretive facilities such as kiosks. (Ibid.) However, the MSHCP provides guidelines for the planning and Development of new trails and public access facilities which will avoid and minimize impacts. (Ibid.) The guidelines prohibit the use of off-road vehicles and motorized access by non-emergency or non-reserve management personnel, and restricts use of mountain bikes in some locations. (Ibid.) Based upon these provisions, the MSHCP will not adversely affect new trail and public access facilities, which can be conditioned as needed to effectively mitigate potential impacts to visual resources in these areas. (Ibid.) Accordingly, impacts on aesthetics are less than significant. B. Agricultural Resources Approximately 1,070 acres of the 84,900 acres of active agricultural use in the Plan Area will be included in the Conservation Areas. (Final EIR/EIS, p. 4-45; Major Issue Response 13.) Conversion of all of this land from agricultural use to non-agricultural use if it ever occurs could constitute a maximum potential loss of 1.4% of agricultural lands in the Plan Area. (Ibid.) All of the 1,070 acres of agricultural land within the Conservation Areas are designated as "Farmland of Local Importance" by the California Department of Conservation. (Ibid.) These lands carry a heavy load of mineral salts from decades of irrigation. (Ibid.) Other RM1'U�3\RHARCiREAVL•S�265886.1 I Z RESOLUTION NO. 06-28 agricultural soils in this area occur on lands that have been converted into or are planned for Development. (Ibid.) No other active or cultivatable land will be impacted by the implementation of the Plan. (Final EIR/EIS, pp. 4-45 through 4-46.) Additionally, the MSHCP will not impact any lands under Williamson Act contracts nor will it preclude entering into such contracts in the future on lands that are currently in active agriculture, whether such lands are located within or outside of a Conservation Area. (Final EIR/EIS, p. 4-46; Major Issue Response 13.) Finally, the Plan will not result in any changes in the physical or regulatory environment that would significantly impact farmland or result in the conversion of farmland to non-agricultural uses. (Final EIR/EIS, p. 4-46; Major Issue Response 13.) Therefore, given the minor impact to active agicultural lands and state-identified farmlands with the potential for conversion to agricultural use, the Plan will have a less than significant impact on a�-icultural lands. C. Air Quality The MSHCP Plan Area is located within the Salton Sea Air Basin. (Final EIR/EIS, p. 4-184.) In and of itself, the MSHCP does not authorize future Development. (Final EIR/EIS, p. 4-189.) However, Plan implementation may cause future Development to be displaced to other areas in the Coachella Valley rather than not occurring at all. (Final EIR/EIS, p. 4-188.) The location of where RMPUB\RFIARGRLAVF.S�265886.1 13 RESOLUTION NO. 06-28 this Development could be displaced is too speculative to analyze at this point. (Ibid.) In addition, minor vehicular emissions may result from vehicle trips in conjunction with biological monitoring and land management, or from persons traveling to the Reserve System to recreate. (Ibid.) But the total number of vehicle miles traveled will not increase significantly and will be statistically insignificant. (Ibid.) Based on the foregoing, the Plan's effects on air yuality are less than significant. D. Biological Resources (excluding Revised Trails Plan) The intent of the MSHCP is to assure the protection in perpetuity of the Covered Species, natural communities and overall biodiversity, and to protect functioning ecosystems in the Plan Area. (Final EIR/EIS, p. 4-62.) The MSHCP provides Take Authorization of Covered Species to Permittees for specified Covered Activities. (Ibid.) The MSHCP takes a species-specific approach in determining the requirements for the Conservation of each Covered Species. Discussed below are the impacts to each Covered Species and the Plan features that will reduce Project impacts to below a level of significance. 1. Impacts to Mecca aster (Xy[orhiza cognata). Individuals occurring outside the Conservation Areas will be subject to Habitat loss, including those occurring east of the Coachella Canal in the Mecca Hills. (Final EIR/EIS, p. 4-68.) Approximately 6,295 acres (10%) of all Habitat and 30% of non-federal lands will be subject to Habitat loss under the MSHCP. (Ihid.) Approximately 1,346 acres (2%) of this is Core Habitat RMPUB\RHARGRF:AVES�265886.1 14 RESOLUTION NO. 06-28 subject to Habitat loss under the Plan. (Ibid.) However, the remote locations and lack of threats make it unlikely that these levels of Habitat loss will ever occur. (Final EIR/EIS, p. 4-69.) Features of the MSHCP that will reduce Project Impacts. The MSHCP ensures Conservation of Core Habitat in five Conservation Areas, and protects Other Conserved Habitat in two Conservation Areas across a range of environmental conditions within which the species occurs. (MSHCP, Table 4-116.) The MSHCP also implements biological monitoring and Adaptive Management to identify threats and to ensure Conservation of this species. (Ibid.) All of these actions will conserve this species in perpetuity. (Ibid.) Conservation under the Plan includes 11,441 acres of Core Habitat in the Thousand Palms Conservation Area, 5,836 acres of Core Habitat in the Indio Hills Palms Conservation Area, 1,539 acres of Core Habitat in the East Indio Hills Conservation Area, 4,525 acres of Core Habitat in the Desert Tortoise and Linkage Conservation Area, and 30,890 acres of Core Habitat in the Mecca Hills/Orocopia Mountains Conservation Area. (Final MSHCP, Table 9-lb.) Including Other Conserved Habitat in other Conservation Areas, the total Habitat to be conserved for this species in the Reserve System is 54,421 acres, or 86% of all Mecca aster Habitat in the Plan Area (98% of Core Habitat). (Final MSHCP Tables 4-114 and 4-116.) The Plan will also control and manage activities that degrade this species' Habitat. (Final MSHCP, Table 4-116.) RMPUB\RHARGRF.AVFS�2G5886.1 1 S RESOLUTION NO. 06-28 Based on the above, impacts to the Mecca aster will be less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 2. Impacts to the Coachella Valley milkvetch — Astragalus lentiginosus var. coachellae. Individuals occurring outside of the MSHCP Conservation Area will be subject to Habitat loss. (Final EIR/EIS, p. 4-63.) Approximately 15,400 acres (42%) of all Habitat and 51% of the non-Federal lands will be subject to Habitat loss under the MSHCP. (Ibid.) There will be approximately 927 acres (6%) of Core Habitat subject to Habitat loss under the MSHCP. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Within the Plan Area, the MSHCP will conserve all remaining populations of this species where Essential Ecological Processes are intact. (Ibid.) Approximately 2,385 acres of Core Habitat will be conserved in the Snow Creek/Windy Point, 5,294 acres in the Whitewater Floodplain Conservation Area, 2,884 acres in the Willow Hole Conservation Area, and 4,276 acres in the Thousand Palms Conservation Area. (Final MSHCP, Table 9-la and 9-lb.) To protect the species in the range of environmental conditions in which it occurs, a total of 4,474 acres of Other Conserved Habitat will be protected in the Stuhbe and Cottonwood Canyons, Whitewater Canyon, Highway 111/I-10, Upper Mission Creek/Big Morongo Canyon, Edom Hill, Indio Hills/Joshua Tree National RMPUII\R[IARGREAVF,S�265886.1 16 RESOLUTION NO. 06-28 Park Linkage, and Joshua Tree National Park Conservation Areas. (Final MSHCP, Table 9-4). In total, the Plan will ensure protection and management in perpetuity of 11,637 acres of Habitat for this species, which, together with Existing Conservation Land, will result in approximately 19,313 acres of Habitat for this species being conserved under the MSHCP. (Final MSHCP, Table 4-114.) This includes 94% of the Core Habitat. (Final MSHCP, Table 4-116.) The MSHCP will also secure the sand source/transport systems for the Core Habitat areas, and will control and manage activities that degrade this species' Habitat, such as sand compaction and/or vegetation destruction, including from OHV travel and other human disturbance. (Ibid.) The Plan will also implement biological monitoring and Adaptive Management measures to address various threats to the species and to ensure long-term persistence of this species. (Ibid.) Thus, impacts to the Coachella Valley milkvetch under the MSHCP will be less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 3. Impacts to the triple-ribbed milkvetch — Astragalus tricarinatus. Approximately 164 acres (5%) of all Habitat and 11°/a of non-federal lands will be subject to Habitat loss under the MSHCP. (Final EIR/EIS, p. 4-64.) RMPU13\RE IARGREAVES�265886.1 1 % RESOLUTION NO. 06-28 There will be approximately 88 acres (4%) of Core Habitat subject to Habitat loss under the Plan. (Final EIR/EIS, p. 4-65.) Features of the MSHCP that will reduce Project Impacts. All known occurrences of triple-ribbed milkvetch will be conserved, along with the adjacent lands in Whitewater Canyon and Mission Creek. (Ibid.) In total, 2,838 acres (94% of all Habitat in the Plan Area, including 33 of the 34 known locations, and 96% of the Core Habitat, including Core Habitat in the Whitewater Canyon and Upper Mission Creek/Big Morongo Canyon Conservation Areas) will be included in the Reserve System. (Final MSHCP, Tables 4-114 and 4-116.) The MSHCP will protect Essential Ecological Processes, including hydrological regimes, necessary to maintain Habitat for this species. (Final MSHCP, Table 4-116.) The MSHCP will also implement biological monitoring and Adaptive Management to identify and address various threats to the species and to ensure long-term persistence of this species. (Ibid.) In addition, the Required Avoidance, Minimization, and Mitigation Measures discussed at Section 4.4 of the MSHCP require that, for most Covered Activities within the modeled triple-milkvetch Habitat in Whitewater Canyon, Whitewater Floodplain, Upper Mission Creek/Big Morongo Canyon, and Santa Rosa and San Jacinto Mountains Conservation Areas, surveys by an Acceptable Biologist will be required for activities during the growing and flowering period from February 1- KMPU13\EtHARGREAVES�265886.1 � 8 RESOLUTION NO. 06-28 May 15. (Final MSHCP, p. 4-201.1) Any occurrences of the species will be flagged and public infrastructure projects shall avoid impacts to the plants to the maximum extent possible. (Ibid.) Known occurrences on a map maintained by CVCC shall not be disturbed. (Ibid.) Based on the above, impacts to triple-ribbed milkvetch under the MSHCP will be less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 4. Impacts to Orocopia sage (Salvia greatae). Individuals occurring outside the Conservation Areas will be subject to Habitat loss, including those occurring on the east side of the Mecca Hills. (Final EIR/EIS, p. 4-70.) Approximately 6,943 acres (9%) of all Habitat and 28% of non-federal lands will be subject to Habitat loss under the MSHCP. (Final MSHCP, Table 4-114.) Features of the MSHCP that will reduce Project Impacts. The MSHCP ensures Conservation of Core Habitat in two Conservation Areas, and protects Other Conserved Habitat in another Conservation Area across a range of environmental conditions within which the species occurs. (Final MSHCP, Table 4-116.) The MSHCP also implements biological monitoring and Adaptive Management to identify threats and to ensure Conservation of this species. (Ibid.) All of these actions will conserve this ' All references to the Final MSHCP are accwate as of January 25, 2006, but may be subject to change. RMPUI3\RI IARGREAVES�265A86.1 19 RESOLUTION NO. 06-28 species in perpetuity. (Ibid.) Conservation under the Plan includes 735 acres of Core Habitat in the Desert Tortoise and Linkage Conservation Area, 64,077 acres of Core Habitat in the Mecca Hills/Orocopia Mountains Conservation Area, and 3,559 acres of Other Conserved Habitat in the Dos Palmas Conservation Area. (Final MSHCP, Table 9-lb.) The total of Habitat for this species to be conserved in the Reserve System is 68,371 acres, or 87% of all Orocopia sage Habitat in the Plan Area (97% of Core Habitat). (Final MSHCP, Tables 4-114 and 4-116.) Threats to the species and its Habitat are minimal. (Final EIR/EIS, p. 71.) The Plan will also control and manage activities that degrade this species' Habitat, such as OHV activity and other activities that could damage plants and their Habitat. (Final MSHCP, Table 4-116.) Regarding the Covered Activities that may affect this species, such activities will disturb an insignificant amount of acreage, resulting in enough Conserved Habitat to maintain the plant in perpetuity. (Final EIR/EIS, p. 4-71.) Based on the above, impacts to the orocopia sage will be less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 5. Impacts to the Little San Bernardino Mountains linanthus (Linantlius maculates or Gilia maculate). Approximately 479 acres (14%) of all RMPUB\RHAKGRF.AVF.S�2658R6.1 ZO RESOLUTION NO. 06-28 Habitat will be subject to Habitat loss under the MSHCP. (Final MSHCP, Table 4-114.) This is 16% of the non-federal lands in the Plan Area. (Final ETR/EIS, p. 4-67.) There will be approximately 217 acres (9%) of Core Habitat subject to Habitat loss under the Plan (0 acres outside and 217 acres inside Conservation Areas). (Ibid.) Features of the MSHCP that will reduce Project Impacts. The Plan conserves large blocks of Habitat for linanthus in the Upper Mission Creek/Big Morongo Canyon Conservation Area totaling 2,120 acres of Core Habitat in the Upper Mission CreekiBig Morongo Canyon Conservation Area, which has also been designed to preserve the braided streams and associated micro-topographic features to which this plant is adapted, 540 acres of Other Conserved Habitat in the Whitewater Canyon Conservation Area, and 246 acres of Other Conserved Habitat in the Willow Hole Conservation Area. (Final MSHCP, Table 9-la.) This is a total of approximately 2,906 acres (86% of all Habitat for this species in the Plan Area) to be conserved in the Reserve System. (Final MSHCP, Table 4-114.) The Plan also requires that the fluvial processes that sustain Habitat for the linanthus be maintained. (Final EIR/EIS, p. 4-67.) The Plan will also control and manage activities that degrade linanthus Habitat, such as vehicular travel in washes and other activities that could damage plants and their Habitat. (Final MSHCP, Table 4-116.) The Plan will also implement biological monitoring and Adaptive Management measures to RMPUE3\KHARGREAVE.S�265886.1 21 RESOLUTION NO. 06-28 identify and address various threats to the species and to ensure long-term persistence of this species. (Ibid.) Based on the above, impacts to the Little San Bernardino Mountains linanthus will be less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 6. Impacts to the Coachella Valley giant sand-treader cricket (Macrobaenetes valgum). Individuals occurring outside the Conservation Areas will be subject to Take Authorization, including those occurring on the Big Dune. (Final EIR/EIS, p. 4-72.) Approximately 13,670 acres (50%) of all Habitat and 61% of non-federal lands will be subject to Take under the MSHCP. (Ibid.) There will be approximately 530 acres (5%) of Core Habitat subject to Take Authorization under the MSHCP. (Ibid.) Nearly all (94%) of the Take will be outside Conservation Areas, such as on Big Dune (Palm Springs Sand Ridge), where the blowsand Habitat is shielded. (Ibid.) Features of the MSHCP that will reduce Project Impacts. The MSHCP ensures Conservation of Core Habitat in three Conservation Areas, and protects Other Conserved Habitat in four Conservation Areas across a range of environmental conditions within which the species occurs. (Final MSHCP, Table 4-116.) The MSHCP also ensures Conservation of k2MPUB\RHARGRI:AV F.S�265886.1 22 RESOLUTION NO. 06-28 Essential Ecological Processes including sand source/transport systems, and implements biological monitoring and Adaptive Management to identify threats and to ensure Conservation of this species. (Ibid.) All of these actions will conserve this species in perpetuity. (Ibid.) Conservation under the Plan includes 1,243 acres of Core Habitat in the Snow Creek/Windy Point Conservation Area, 5,278 acres of Core Habitat in the Whitewater Floodplain Conservation Area, 3,854 acres of Core Habitat in the Thousand Palms Conservation Area, 1,594 acres of Other Conserved Habitat in the Willow Hole Conservation Area, 3 acres of Other Conserved Habitat in the Thousand Palms Conservation Area, 98 acres of Other Conserved Habitat in the Edom Hill Conservation Area, 839 acres of Other Conserved Habitat in the East Indio Hills Conservation Area, and 112 acres of Other Conserved Habitat in the Santa Rosa and San Jacinto Mountains Conservation Area. (Final MSHCP, Tables 9-la and 9-lb.) The total of Habitat for this species to be conserved in the Reserve System is 13,021 acres, or 48% of all Coachella Valley giant sand-treader cricket Habitat in the Plan Area (95% of Core Habitat). (Final MSHCP, Tables 4-114 and 4-116.) The Plan will also control and manage activities that degrade Habitat for this species, such as OHV activity and other activities that can kill individuals or damage their Habitat. (Final MSHCP, Table 4-116.) Based on the above, impacts to the Coachella Valley giant sand-treader cricket will be less than significant and the benefits conferred by the Plan RMI'UB\R}{ARGR�,AV}:S�265886.1 23 RESOLUTION NO. 06-28 will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 7. Impacts to the Coachella Valley Jerusalem cricket (Stenopelmatus cahuilaensis). Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring on the Big Dune. (Final EIR/EIS, p. 4-74.) Approximately 9,992 acres (44%) of all Habitat and 49% of non-Federal lands will be subject to Take Authorization under the MSHCP. (Ibid.) Nearly all (96%) of the Take will be outside the Conservation Areas, where the Habitat is less likely to be occupied. (Final MSHCP, Tables 4-114 and 4-116.) There will be approximately 150 acres (9%) of Core Habitat subject to Take Authorization under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. The MSHCP protects a contiguous Habitat in the Snow Creek/Windy Point Conservation Area, which appears to be the center of this species' distribution, and which will create a preserve of sufficient size to conserve this species in perpetuity. (Final MSHCP, Table 4-116.) The MSHCP also protects Other Conserved Habitat in six Conservation Areas across a range of environmental conditions within which the species occurs. (Ibici.) The MSHCP also ensures Conservation of Essential Ecological Processes including sand source/transport systems; maintains Biological Corridors and Linkages to allow connectivity and shifts in distribution over time; and implements biological monitoring and Adaptive Management to RMPUA\RI{ARGREAVL:S�2G5886.1 24 RESOLUTION NO. 06-28 identify threats and to ensure Conservation of this species. (Ibid.) All of ihese actions will conserve this species in perpetuity. (Ibid.) Conservation under the Plan includes 1,540 acres of Core Habitat in the Snow Creek/Windy Point Conservation Area, and a total of 10,428 acres of Other Conserved Habitat in eleven Conservation Areas. (Ibid.) The total of Habitat for this species to be conserved in the Reserve System is 11,968 acres, or 52% of all Coachella Valley Jerusalem cricket Habitat in the Plan Area (91% of Core Habitat). (Final MSHCP, Tables 4-116.) Based on the above, impacts to the Jerusalem cricket are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 8. Impacts to the desert pupfish (Cyprinodon macularius). Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring in shoreline pools of the Salton Sea. (Final EIR/EIS, p. 4-77.) In addition, individuals occumng in the drains will be subject to Take by CVWD for ongoing maintenance activities in the drains. (Ibid.) Features of the MSHCP that will reduce Project Impacts. The Plan will ensure that existing desert pupfish Habitat and refugia populations are protected and managed. (Final MSHCP, Table 4-116.) The Plan conserves 100% of the 31 known locations for the species. (Ibid.) This includes KMPUD\KIlARG1�AVES�265886.1 25 RESOLUTION NO. 06-28 Conservation of agricultural drains and shoreline pools. (Ibid.) The MSHCP will protect Core Habitat in Salt Creek in the Dos Palmas Conservation Area and in the agricultural drains in the Coachella Valley Stormwater Channel and Delta Conservation Area, and will protect refugia populations in the Thousand Palms Conservation Area and the Dos Palmas Conservation Area. (Ibid.) In addition, the Plan requires CVWD to prepare a Monitoring and Adaptive Management Plan for desert pupfish within one year of Permit issuance to assure long-term viability of pupfish in the agricultural drains leading into the Salton Sea. (Ibid.; Final MSHCP, p. 4-77.) This Monitoring Program will result in updated information on the existing pupfish populations in the Salton Sink. (Ibid.) The Plan also requires CVWD to establish 25 acres of artificial pupfish Habitat. (Final EIR/EIS, p. 4-78.) Based on the above, impacts to the desert pupfish are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 9. Impacts to the arroyo toad (Bufo californicus). Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring in the Bonnie Bell area. (Final ElR/EIS, p. 4-79.) Approximately 88 acres (4%) of all Arroyo toad Habitat and 11 % of non- Federal lands will be subject to Take Authorization under the MSHCP. (Ibid.) RMPUB�I2HARGRLAVES�265886.1 26 RESOLUTION NO. 06-28 Features of the MSHCP that will reduce Project Impacts. Pursuant to the recommendations of the Recovery Plan for the anoyo toad, the MSHCP calls for acquisition and management of key Habitat in Whitewater Canyon. (Final EIIt/EIS, p. 4-80.) The MSHCP will result in the Conservation of 2,007 acres of arroyo toad Habitat, including 2,004 acres of Core Habitat in the Whitewater Canyon Conservation Area, and 3 acres of Other Conserved Habitat in the Upper Mission Creek/Big Morongo Canyon Conservation Area. (Final MSHCP, Table 4-116.) The 2,007 acres of Conserved Habitat is 96% of all arroyo toad Habitat, (and 96% of the Core Habitat) in the Plan Area. (Ibid.) The MSHCP will protect Essential Ecological Processes, including hydrological regimes, necessary to maintain Habitat for this species. (Ibid.) The MSHCP will also implement biological monitoring and Adaptive Management to identify and address various threats to the species and to ensure long-term persistence of this species. (Ibid.) Based on the above, impacts to the arroyo toad are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 10. Impacts to the desert tortoise (Gopherus agassizit�. Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring east of Hwy 62 and east of Dillon Rd to the boundary with Joshua Tree National Park. (Final EIR/EIS, p. 4-87.) RMPUB\RHARGREAVES�26588G.1 2% RESOLUTION NO. 06-28 Approximately 66,457 acres (12%) of all Habitat and 28% of non-Federal lands will be subject to Take Authorization under the MSHCP. (Final MSHCP, Tables 4-114 and 4-116.) There will be approximately 11,711 acres (3%) of Core Habitat subject to Take Authorization under the Plan. (Final EIR/EIS, p. 4-87.) Features of the MSHCP that will reduce Project Impacts. Ninety- seven percent of the Critical Habitat in the eastern Plan Area will be conserved for desert tortoise and 86% of the occupied or potential Habitat is conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of approximately 146,723 acres of modeled Habitat together with Existing Conservation Land or a total of 492,377 acres conserved, including 365,748 acres of Core Habitat. (Final MSHCP, Table 9-15.) The MSHCP ensures Conservation of Core Habitat in seven Conservation Areas from western to eastern parts of the Plan Area. (Final MSHCP, Table 4-116.) The MSHCP also maintains Biological Corridors and Linkages to ensure connectivity between Conservation Areas and with Habitat outside the Plan Area, and implements biological monitoring and Adaptive Management to identify threats and to ensure Conservation of this species. (Ibid.) All of these actions will conserve this species in perpetuity. (Ibid.) Conservation under the Plan includes 5,482 acres of Core Habitat in the Stubbe and Cottonwood Canyons Conservation Area, 4,374 acres of Core Habitat in the Whitewater Canyon Conservation Area, 27,128 acres of Core Habitat in the Upper Mission Creek/Big Morongo RMPUB\RHARG}i�AVF•.S�265886.1 2g RESOLUTION NO. 06-28 Canyon Conservation Area, 9,449 acres of Core Habitat in the Indio Hills/Joshua Tree National Park Linkage Conservation Area, 125,453 acres of Core Habitat in the Joshua Tree National Park Conservation Area, 84,211 acres of Core Habitat in the Desert Tortoise and Linkage Conservation Area, and 109,651 acres of Core Habitat in the Mecca Hills/Orocopia Mountains Conservation Area. (Final MSHCP, Table 9-15.) The MSHCP protects a total of 126,629 acres of Other Conserved Habitat in fourteen Conservation Areas across a range of environmental conditions within which the species occurs. (Ibid.) The total of Habitat for this species to be conserved in the Reserve System is 492,377 acres, or 86% of all desert tortoise Habitat in the Plan Area (97% of the designated Critical Habitat in the eastern portion of the Plan Area). (Final MSHCP, Table 4-116.) The Plan will also control and manage activities that degrade Habitat for this species, such as OHV activity and other activities that can kill individuals or damage their Habitat. (Final MSHCP, pp. 9-104 through 9-105.) In addition, the Plan addresses recovery units within the Plan Area that were identified by the Desert Tortoise Recovery Plan in 1994. (Final ELR/EIS, p. 4-88.) This Recovery Plan recommended establishment of the Joshua Tree National Park Desert Wildlife Management Area ("DWMA") and the Chuckwalla DWMA, both of which fall within the Plan Area of the MSHCP. (Ibid.,� RMPUB\R! IARGREAVES�265886.1 29 RESOLUTION NO. 06-28 In addition, Section 4.4 of the MSHCP (Required Avoidance, Minimization, and Mitigation Measures) provides additional Conservation protection. That provision requires that, under most circumstances, the Permittees will conduct surveys for desert tortoise before initiation of Development or Operations and Maintenance ("O&M") activities in modeled desert tortoise Habitat within Conservation Areas. (Final MSHCP, p. 4-195.) The Plan provides a specific procedure for such surveys. The Plan also has developed two utility development protocols (active season and inactive season) to avoid or minimize potential adverse impacts to the desert tortoise in the Conservation Areas from utility and road right-of-way projects. (Final MSHCP, pp. 4-196 through 4-200.) Based on the above, impacts to the desert tortoise are less than significant and the benefits confened by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 11. Impacts to the Coachella Valley fringe-toed lizard (Uma inornata). Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring on the Big Dune. (Final EIR/EIS, p. 4-81.) Approximately 13,670 acres (50%) of all Habitat and 61% of non-Federal lands will be subject to Take Authorization under Plan. (Ibid.) (Final RMPUB\KHARGREAVES�265886.1 3� RESOLUTION NO. 06-28 MSHCP, Table 4-114.) There will be approximately 603 acres (5%) of Core Habitat subject to Take Authorization under the MSHCP. (Ibid.) Features of the MSHCP that will reduce Project Impacts. The Coachella Valley fringe-toed lizard Recovery Plan was established in 1985, recommending over 50 measures that could be taken to lead to recovery of the lizard. (Ibid.) The MSHCP will meet or exceed the standards of this recovery plan by creating and implementing Conservation measures in the Conservation Areas. (Final EIR/EIS, p. 4-82.) The MSHCP will result in the Conservation of 7,054 acres of modeled Habitat together with Existing Conservation Land for a total of 13,022 acres conserved, including 11,199 acres (95%) of Core Habitat. (Final MSHCP, Table 9-16; p. 9-122; Table 4-116.). This includes 1,244 acres of Core Habitat in Snow Creek/Windy Point Conservation Area, 5,278 acres of Core Habitat in Whitewater Floodplain Conservation Area, 823 acres of Core Habitat at Willow Hole Conservation Area, and 3,854 acres of Core Habitat in Thousand Palms Conservation Area. (Draft MSHCP, Table 9-la.) In addition, the MSHCP will conserve 1,823 acres of Other Conserved Habitat in five Conservation Areas, representing a range of environmental conditions in which the species occurs. (Final MSHCP, Table 9-16.) The Plan will also conserve the scattered blowsand deposits and occupied Habitat in the Indio Hills. (Final EIR/E1S, p. 4-83.) The Plan also employs measures to protect and maintain Essential Ecological Processes for sand transport to the new Conservation Areas, RMPUR\RHAKGREAVL•5�265886.1 31 RESOLUTION NO. 06-28 and provides Linkages between these Areas. (Final EIR/EIS, p. 4-83.) Furthermore, the Plan requires CVCC, CVAG and CalTrans to acquire 1,795 acres for interchange and arterial road Covered Activities listed in Table 7-1 of the MSHCP. (Final EIR/EIS, p. 4-84.) Adaptive Management implemented by the Plan includes several measures that will forestall or prevent extirpation in a Conservation Area. (Ibid.) Such measures include the establishment of "sand fences" to trap sand upwind in armored Habitat and create blowsand hummocks for expansion of the extant population. (Ibid.) Other measures which may be utilized as appropriate include hauling sand upwind, destabilizing armored deposits by physically removing vegetation and surface crusts, controlling exotic plant species and feral animals, and re-introduction of fringe-toed lizards into areas where they may be extirpated or into restored sites. (Ibid.) Based on the above, impacts to the Coachella Valley fringe-toed lizard are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 12. Impacts to flat-tailed horned lizard (Phrynosoma mcallic�. Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring on the Big Dune. (Final EIR/EIS, p. 4-91.) Approximately 17,507 acres (54%) of all predicted Habitat, 65% of non- RMI'UB\RHARGREAVGS�265886.1 32 RESOLUTION NO. 06-28 Federal predicted Habitat lands, 1,734 acres (34%) of all potential Habitat and 41% of all potential Habitat on non-Federal lands will be subject to Take under MSHCP. (Ibid.) There will be approximately 96 acres (2%) of Core Habitat subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. The MSHCP will result in the Conservation of 7,475 acres of modeled Habitat together with Existing Conservation Land for a total of 13,947 acres conserved. (Final MSHCP, p. 9-13; Table 9-17.) Only one area of the MSHCP was delineated as Core Habitat for this species, at the Thousand Palms Preserve. (Final MSHCP, p. 9-136.) The Planning Team for this Plan delineated approximately 4,131 acres as Core Habitat. (Ibid.) Conservation Objectives ensure the Conservation of at least 4,035 acres in the Thousand Palms Conservation Area. (Ihid.) In addition, the MSHCP will conserve approximately 689 acres of Other Conserved Habitat in East Indio Hills and 5,048 acres of Other Conserved Habitat in Dos Palmas. (Final MSHCP, Tables 9-17.) The MSHCP will also: Protect Other Conserved Habitat in a total of five Conservation Areas representing the range of environmental conditions within which this species occurs; Ensure Conservation of Essential Ecological Processes including sand source/transport systems; Maintain Biological Corridors and Linkages among conserved populations or Habitats; and Implement biological monitoring and Adaptive Management to ensure Conservation of this species. (Final MSHCP, Table 4-116.) RMPUB\RHARGREAVES�265886.1 33 RESOLUTION NO. 06-28 Based on the above, impacts to the flat-tailed horned lizard are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 13. Impacts to the Yuma clapper rail (Ra[lus longirostris yumanensis). Individuals occurring outside the Conservation Areas will be subject to Take. (Final EIR/EIS, p. 4-115.) Approximately 62 acres (9%) of all Habitat and 13% of non-Federal lands will be subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. This bird is found only in the Dos Palmas and Coachella Valley Stormwater Channel and Delta Conservation Areas. Implementation of the Plan will provide for persistence of the Yuma clapper rail within the Plan Area, as currently unprotected portions of its Habitat and potential Habitat areas will be conserved. (Final MSHCP, p. 9-146.) Ninety-one percent of the modeled clapper rail Habitat will be conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 413 acres of modeled Habitat together with Existing Conservation Land for a total of 643 conserved acres. (Ibid.) In addition, the CVWD will establish 66 acres of permanent replacement rail Habitat. (Final MSHCP, Table 4-116.) Management and Monitoring activities will be implemented to ensure Conservation of this species, including control of activities that degrade Habitat. (Ibid.) Biological monitoring and Adaptive Management will be RMPUB\RI IARGREAVES�265886.1 34 RESOLUTION NO. 06-28 implemented to ensure Conservation, and Essential Ecological Processes will be protected, including the regimes necessary to maintain rail Habitat. (Ibid.) Finally, because this rail is a California Fully Protected Species, the required surveys will be conducted in accordance with law. (Ibid.) Based on the above, impacts to the Yuma clapper rail are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the habitat, and protect Biological Corridors and Linkages, as appropriate. 14. Impacts to the California black rail (Laterallus jamaicensis coturniculus). Individuals occurring outside the Conservation Areas will be subject to Take, including any occurring in the Coachella Valley Stormwater Channel. (Final EIR/EIS, p. 4-96.) Approximately 62 acres (9%) of all Habitat and 13% of non-Federal lands will be subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. This bird is found only in the Dos Palmas and Coachella Valley Stormwater Channel and Delta Conservation Areas. Implementation of the Plan will provide for persistence of the California black rail within the Plan Area, as currently unprotected portions of its Habitat and potential Habitat areas will be conserved. (Final MSHCP, p. 9-153.) Ninety-one percent of the modeled clapper rail Habitat will be conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 413 acres of RMPUB\RHARCRGAVGS�265886.1 3S RESOLUTION NO. 06-28 modeled Habitat together with Existing Conservation Land for a total of 643 conserved acres. (Ibid.) In addition, the Coachella Valley Watcr District ("CVWD") will establish 66 acres of permanent replacement rail Habitat. Management and Monitoring activities would be implemented to ensure Conservation of this species, including control of activities that degrade Habitat. (Ibid.) Biological monitoring and Adaptive Management will be implemented to ensure Conservation, and Essential Ecological Processes will be protected, including hydrological regimes necessary to maintain rail Habitat. (Ibid.) Finally, because this rail is a California Fully Protected Species, the required surveys will be conducted in accordance with law. (Final MSHCP, p. 9-152.) Given the level of Conservation, which includes establishment of permanent riparian Habitat and expansion of the marsh Habitat, all impacts are considered beneficial. Based on the above, impacts to the California black rail are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 15. Impacts to the burrowing owl (Athene cunicularia). Impacts to burrowing owl are very difficult to predict, given the limited knowledge on their distribution and abundance in the Plan Area, and their ability to relocate when established nesting sites are lost, which are often in agricultural and urban areas. (Final EIR/EIS, p. 4-94.) However, it is RMI'UI3\RI IARGREAVES�265886.1 36 RESOLUTION NO. 06-28 estimated that 45% of known locations for burrowing owl will be subject to Take in areas compromised by fragmentation, Development, and associated impacts. (Final MSHCP, Table 4-116.) Features of the MSHCP that will reduce Project Impacts. The reserve design process focused on inclusion of areas of contiguous Habitat in areas where burrowing owls are known to occur. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 41 of the 74 known locations of burrowing owl, which include foraging areas. (Ibid.) Thcsc locations inciude areas in Snow Creek, Whitewater Floodplain Preserve, the Mission Creek area west of Highway 62, the Willow Hole-Edom Hill Preserve/ACEC area, the Thousand Palms Preserve, including the sand source area, and significant portions of the Indio Hills and Mecca Hills. (Ibid.) Overall the 724,740 acre Reserve System will contain sufficient Habitat to maintain a viable population of burrowing owls within the Plan Area. (Final EIR/EIS, p. 4-94.) The Avoidance, Minimization, and Mitigation Measures listed in Section 4.4 of the MSHCP will minimize Take of burrowing owls. (Final EIR/EIS, p. 4-94.) In total, the Plan ensures the Conservation of burrowing owls within nine Conservation Areas, and the protection of Other Conserved Habitat in ten Conservation Areas. (Final MSHCP, Table 4-116.) Biological monitoring and Adaptive Management will also be implemented to ensure Conservation of this species. (Ibid.) RMY1113\RI IARGREAViS�26588G.1 3% RESOLUTION NO. 06-28 Based on the above, impacts to the burrowing owl are less than significant and the benefits conferred by the Plan will protect adequate unfragmentcd Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. Thus, no mitigation measures are necessary. 16. Impacts to the Southwestern willow flycatcher (Empidonax trail[ii extimus). lndividuals occurring outside the Conservation Areas will be subject to Take, including those in migratory Habitat east of the Coachella Canal and in a small portion of Dos Palmas. (Final EIR/EIS, p. 4-106.) Approximately 168 acres (6%) of all breeding Habitat (11 % on non- Federal lands) and 15,278 acres (26%) of migratory Habitat (42% on non- Federal lands) will be subject to Take under the MSHCP. (Ihid.) Features of the MSHCP that will reduce Project Impacts. Ninety-four percent of the modeled willow flycatcher breeding Habitat and 72% of the modeled willow flycatcher migratory Habitat is conserved under the Plan. (Final MSHCP, Table 4-116.) Permittees will protect and manage 1,037 acres of modeled breeding Habitat together with Existing Conservation Land for a total of 2,563 acres of breeding Habitat conserved. (Final MSHCP, Table 4-114.) The MSHCP will result in the Conservation of 19,638 acres of modeled migratory Habitat together with Existing Conservation Land for a total of 40,924 acres of migratory Habitat conserved. (Ibid.) The Conservation Areas in the Plan will protect 99% of RMPUk3\RHARGREAVF,S�26588G.1 3 g RESOLUTION NO. 06-28 the occupied and potential breeding Habitat and 76% of the potential migratory Habitat for this species. (Ibid.) The Plan will also provide permanent protection to riparian Habitat via acquisition and management in several Conservation Areas and establish permanent riparian Habitat in the Coachella Valley Stormwater Channel and Delta Conservation Area. (Final EIR/EIS, p. 4-106.) CVWD will establish 44 acres of permanent Sonoran cottonwood-willow riparian forest in the Coachella Valley Stormwater Channel and Delta Conservation area as described in Section 4.3.20 of the MSHCP. (Final MSHCP, Table 4-116.) In addition, the Plan requires that, where disturbance of a given number of acres of a riparian natural community is authorized, an equivalent number of acres will be replaced to ensure that no net loss occurs. (Ibid.) Implementation of biological monitoring and Adaptive Management will also take place to ensure Conservation of the vireo. (Ibid.) Essential Ecological Processes will also be protected, including hydrological regimes necessary to maintain riparian Habitat. In addition, the Required Avoidance, Minimization, and Mitigation Measures of Section 4.4 of the MSHCP require that Covered Activities, including construction and O&M activities, in riparian Habitat of the Cabazon, Stubbe and Cottonwood Canyons, Whitewater Canyon, Upper Mission Creek/Big Morongo Canyon, Thousand Palms, Indio Hills Palms, Joshua Tree National Park, Mecca Hills and Orocopia Mountains, Dos Palmas, Coachella Valley RMPUf3\RI IARGRLAVES�2G5886.1 39 RESOLUTION NO. 06-28 Stormwater Channel and Delta, and Santa Rosa and San Jacinto Mountains Conservation Areas, wi11 be conducted to the maximum extent Feasible outside of the May 1— September 15 nesting season for Southwestern willow flycatcher. (Final MSHCP, p. 4-195.) If Covered Activities must occur during the nesting season, surveys shall be conducted to determine if any active nests are present. (Ibid.) If active nests are identified, the Covered Activity shall not be conducted within 200 feet of an active nest. (Ibid.) If surveys conducted during the nesting season document that Covered nesting riparian bird Species are not present, the Covered Activity may proceed. (Ibid.) Based on the above, impacts to the Southwestem willow flycatcher are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Comdors and Linkages, as appropnate. 17. Impacts to the crissal thrasher (Toxostoma crissale). Individuals occumng outside the Conservation Areas will be subject to Take, including those occurring on lands in the south portion of the valley near the Salton Sea. (Final ETR/EIS, p. 4-99.) Approximately 5,113 acres (75%) of all Habitat and 76% of non-Federal lands will be subject to Take under the Plan. (Ibid.) There will be approximately 131 acres (9%) of Core Habitat subject to Take under the Plan. (Ibid.) RMPUII\RHARGRGAVES�265886.1 4� RESOLUTION NO. 06-28 Features of the MSHCP that will reduce Project Impacts. The MSHCP will result in the Conservation of 1,480 acres of modeled Habitat together with Existing Conservation Land for a total of 1,738 acres of land conserved. (Final MSHCP, Table 4-116.) Approximately 91% of the Core Habitat for this species will be conserved under the Plan, including 498 acres of occupied Habitat in Dos Palmas and 868 acres of occupied Habitat in the Coachella Valley Stormwater Channel and Delta Conservation Areas. (Ibid.; Final MSHCP, Table 9-22.) Implementation of the Plan will provide for the Conservation of the unprotected portions of crissal thrasher Habitat. (Ibid.) The Required Avoidance, Minimization, and Mitigation Measures of Section 4.4 of the MSHCP will also ensure Conservation of the species. This section requires that, in the Willow Hole, Thousand Palms, Indio Hills Palms, East Indio Hills, Dos Palmas, and Coachella Valley Stormwater Channel and Delta Conservation Areas, surveys will be conducted by an Acceptable Biologist prior to the start of construction activities during the nesting season, January 15 — June 15, to determine if active nest sites for this species occur on the construction site and/or within 500 feet of the construction site, or to the edge of the property boundary if less than 500 feet. (Final MSHCP, pp. 4-195 and 4-196.) If nesting crissal thrashers are found, a 500-foot buffer, or a buffer to the edge of the property boundary if less than 500 feet, will be established around the nest site. (Ibid.) The buffer will be staked and flagged. (Ibid.) RMPUB\RHARCiRF:AVES�2G5886.1 41 RESOLUTION NO. 06-28 No construction activities will be permitted within the buffer during the breeding season of January 15 — June 15 or until the young have fledged. (Ibid.) The Plan will also: Protect Essential Ecological Processes including hydrological regimes necessary to maintain thrasher Habitat; Maintain Biological Corridors and Linkages for Habitat connectivity; and Implement biological monitoring and Adaptive Management to ensure Conservation of this species. (Final MSHCP, Table 4-116.) Based on the above, impacts to the crissal thrasher are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Comdors and Linkages, as appropriate. 18. Impacts to the Le Conte's thrasher (Toxostoma lecontec�. Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring on the Big Dune and the east end of the Indio Hills. (Final EIR/EIS, p. 4-97.) Approximately 95,688 acres (39%) of all Habitat and 53% of non-Federal lands will be subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Ninety-eight percent of the predicted Core Habitat for Le Conte's thrasher will be conserved and 54% of the modeled Habitat will be conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the EZM PUB\ftl IARGR1iA V ES�265886.1 42 RESOLUTION NO. 06-28 Conservation of 73,548 acres of modeled Habitat together with Existing Conservation Land for a total of 132,499 acres of Other Conserved Habitat in twenty Conservation Areas across a range of environmental conditions within which the species occurs. (Final MSHCP, Table 9-23.) Management and monitoring activities will ensure Conservation of this species, including control of activities that degrade its Habitat. (Final MSHCP, Table 4-116.) Biological Corridors and Linkages will be maintained for Habitat connectivity and Essential Ecological Processes will be protected, including hyarological regimes necessary to maintain thrasher Habitat. (Ibid.) In addition, the Required Avoidance, Minimization, and Mitigation Measures of Section 4.4 of the MSHCP require that, prior to the start of most construction activities in all Conservation Areas, surveys will be conducted by an Acceptable Biologist on the construction site and within 500 feet of the construction site, or to the property boundary if less than 500 feet. (Final MSHCP, p. 4-200.) If nesting Le Conte's thrashers are found, a 500 foot buffer, or to the property boundary if less than 500 feet, will be established around the nest site. The buffer will be staked and flagged. (Ibid.) No construction will be permitted within the buffer during the breeding season of January 15 - June 15 or until the young have fledged. (Ibid.) RMPUB\RHARGREAVF:S�265886.1 43 RESOLUTION NO. 06-28 Based on the above, impacts to the Le Conte's thrasher are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 19. Impacts to the least Bell's vireo (Vireo bel[ii pusillus). Individuals occurring outside the Conservation Areas will be subject to Take, including those in migratory Habitat east of the Coachella Canal and in a small portion of Dos Palmas. (Final EIR/EIS, p. 4-104.) Approximately 760 acres (21 %) of all breeding Habitat (31 % on non-Federal lands) and 14,682 acres (25%) of migratory Habitat (41% on non-Federal lands) will be subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Seventy-nine percent of the modeled vireo breeding Habitat, and 72% of the modeled vireo migratory Habitat will be conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 1,286 acres of modeled breeding Habitat together with Existing Conservation Land for a total of 2,915 acres of breeding Habitat conserved. (Ibid.) The MSHCP will result in the Conservation of 19,393 acres of modeled migratory Habitat together with Existing Conservation Land for a total of 40,576 acres of migratory Habitat conserved. (Ibid.) The Plan will provide permanent protection to riparian Habitat via acquisition and management in several Conservation Areas and by establishment of permanent riparian Habitat in the Coachella Valley Storm Channel and Delta Conservation RMPUB\RI IARGREAVES�265886.1 44 RESOLUTION NO. 06-28 Area. (Final EIR/EIS, p. 4-105.) CVWD will establish 44 acres of permanent Sonoran cottonwood-willow riparian forest in these two areas. (Final MSHCP, Table 4-116.) Implementation of biological monitoring and Adaptive Management will also occur to ensure Conservation of the vireo. (Ibid.) Essential Ecological Processes will also be protected, including hydrological regimes necessary to maintain riparian Habitat. (Ibid.) In addition, the Required Avoidance, Minimization, and Mitigation Measures of Section 4.4 of the MSHCP require that Covered Activities, including construction and O&M activities, in riparian Habitat of the Cabazon, Stubbe and Cottonwood Canyons, Whitewater Canyon, Upper Mission Creek/Big Morongo Canyon, Thousand Palms, Indio Hills Palms, Joshua Tree National Park, Mecca Hills and Orocopia Mountains, Dos Palmas, Coachella Valley Stormwater Channel and Delta, and Santa Rosa and San Jacinto Mountains Conservation Areas, will be conducted to the maximum extent Feasible outside of the March 15 — September 15 nesting season for least Bell's vireo. (Final MSHCP, p. 4-195.) If Covered Activities must occur during the nesting season, surveys shall be conducted to determine if any active nests are present. (Ibid.) If active nests are identified, the Covered Activity shall not be conducted within 200 feet of an active nest. (Ibid.) If surveys conducted during the nesting season document that Covered nesting riparian bird Species are not present, the Covered Activity may proceed. (Ibid.) RMPIJB\R}IARGRF:AVLS�265886.1 45 RESOLUTION NO. 06-28 Based on the above, impacts to the least Bell's vireo are less than significant and the benefits conferred by the Plan will provide permanent protection to its riparian Habitat. 20. Impacts to the gray vireo (i�ireo vicinior). Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring in the Pinyon Flats area. (Final EIR/EIS, p. 4-102.) Approximately 3,913 acres (4%) of all Habitat and 18% of non-Federal lands will be subject to Take under the MSHCP. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Ninety-six percent of the occupied or potential Habitat is conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 13,194 acres of modeled Habitat together with Existing Conservation Land for a total of 101,544 conserved acres. (Ibid.) The MSHCP protects a total of 30,519 acres of Other Conserved Habitat in Joshua Tree National Park Conservation Area and 66,089 acres of Other Conserved Habitat in Santa Rosa and San Jacinto Mountains Conservation Area. (Fina] MSHCP, Table 9-lb.) Management and monitoring activities will ensure Conservation of this species, including control of activities that degrade its Habitat. (Final MSHCP, Table 4-116.) The Plan calls for coordination with federal agencies regarding appropriate management prescriptions for Pinyon- RMPU13\RI IARC;R�AVF.S�265R86.1 46 RESOLUTION NO. 06-28 juniper woodland and chaparral Habitats and control of brown-headed cowbird nest parasitism. (Ibid.) Based on the above, the Plan will not have a significant impact on the gray vireo. 21. Impacts to the yellow warbler (Dendroica petechia brewsteri�. Individuals occurring outside the Conservation Areas will be subject to Take, including those in migratory Habitat east of the Coachella Canal and in a small portion of Dos Palmas. (Final EIR/EIS, p. 4-111.) Approximately 168 acres (6%) of all breeding Habitat (11 % on non- Federal lands) and 15,278 acres (26%) of migratory Habitat (42% on non- Federal lands) will be subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Ninety-four percent of the modeled yellow warbler breeding Habitat and 72% of the modeled yellow warbler migratory Habitat is conserved under the Plan. (Final MSHCP, Table 4-116.) The Plan will ensure the protection and management of 1,037 acres of modeled breeding Habitat together with Existing Conservation Land for a total of 2,563 acres of breeding Habitat conserved. (Ibid.) The MSHCP will result in the Conservation of 19,638 acres of modeled migratory Habitat together with Existing Conservation Land for a total of 40,924 acres of migratory Habitat conserved. (Ibid.) The Plan will provide pertnanent protection to riparian Habitat via acquisition and management in several Conservation Areas and by RMPUB\RHAItGREAVES�265886.1 4% RESOLUTION NO. 06-28 establishment of permanent riparian Habitat in the Whitewater Storm Channel and Delta Conservation Area. (Final EIR/EIS, p. 4-111.) CVWD will establish 44 acres of permanent Sonoran cottonwood-willow riparian forest in the Coachella Valley Stormwater Channel and Delta Conservation area as described in Section 4.3.20 of the MSHCP. (Final MSHCP, Table 4-116.) In addition, the Plan requires that, where disturbance of a given number of acres of a riparian natural community is authorized, an equivalent number of acres will be replaced to ensure that no net loss occurs. (Ibid.) Implementation of biological monitoring and Adaptive Management will also take place to ensure Conservation of the yellow warbler. (Ifiid.) Essential Ecological Processes will also be protected, including hydrological regimes necessary to maintain riparian Habitat. In addition, the Required Avoidance, Minimization, and Mitigation Measures of Section 4.4 of the MSHCP require that Covered Activities, including construction and O&M activities, in riparian Habitat of the Cabazon, Stubbe and Cottonwood Canyons, Whitewater Canyon, Upper Mission Creek/Big Morongo Canyon, Thousand Palms, Indio Hills Palms, Joshua Tree National Park, Mecca Hills and Orocopia Mountains, Dos Palmas, Coachella Valley Stormwater Channel and Delta, and Santa Rosa and San Jacinto Mountains Conservation Areas, will be conducted to the maximum extent Feasible outside of the May 1— September 15 nesting season for yellow warbler. (Final MSHCP, p. 4-195.) If Covered Activities must RMPUB\KI IARGRF:AVES�265886.1 48 RESOI�UTION NO. 06-28 occur during the nesting season, surveys shall be conducted to determine if any active nests are present. (Ibid.) If active nests are identified, the Covered Activity shall not be conducted within 200 feet of an active nest. (Ibid.) If surveys conducted during the nesting season document that Covered nesting riparian bird Species are not present, the Covercd Activity may proceed. (Ibid.) Based on the above, impacts to the yellow warbler are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 22. Impacts to yellow-breasted chat (Icteria virens). Individuals occurring outside the Conservation Areas will be subject to Take, including those in migratory Habitat east of the Coachella Canal and in a small portion of Dos Palmas. (Final EIR/EIS, p. 4-113.) Approximately 180 acres (6%) of all breeding Habitat (11 % on non-Federal lands) and 15,265 acres (26%) of migratory Habitat (42% on non-Federal lands) will be subject to Take under the MSHCP. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Ninety-four percent of the modeled chat breeding Habitat and 71 % of the modeled chat migratory Habitat is conserved under the Plan. (Final MSHCP, Table 4-116.) The Plan will ensure the protection and management of 1,160 acres of modeled breeding Habitat together with Existing Conservation RMPi1B\RHARGRfAVLS�265886.1 49 RESOLUTION NO. 06-28 Land for a total of 2,829 acres of breeding Habitat conserved. (Ihid.) The MSHCP will result in the Conservation of 19,518 acres of modeled migratory Habitat together with Existing Conservation Land for a total of 40,661 acres of migratory Habitat conserved. (Ibid.) The Plan will provide permanent protection to riparian Habitat via acquisition and management in several Conservation Areas and by establishment of permanent riparian Habitat in the Whitewater Storm Channel and Delta Conservation Area. (Final EIR/EIS, p. 4-113.) CVWD will establish 44 acres of permanent Sonoran cottonwood-willow riparian forest in the Coachella Valley Stormwater Channel and Delta Conservation area as described in Section 4.3.20 of the MSHCP. (Final MSHCP, Table 4-116.) In addition, the Plan requires that, where disturbance of a given number of acres of a riparian natural community is authorized, an equivalent number of acres will be replaced to ensure that no net loss occurs. (Ibid.) Implementation of biological monitoring and Adaptive Management will also take place to ensure Conservation of the yellow-breasted chat. (Ibid.) Essential Ecological Processes will also be protected, including hydrological regimes necessary to maintain riparian Habitat. (Ibid.) In addition, the Required Avoidance, Minimization, and Mitigation Measures of Section 4.4 of the MSHCP require that Covered Activities, including construction and O&M activities, in riparian Habitat of the Cabazon, Stubbe and Cottonwood Canyons, Whitewater Canyon, Upper Mission RMPUB\RI IARGREAVL-:S�265886.1 SO RESOLUTION NO. 06-28 Creek/Big Morongo Canyon, Thousand Palms, Indio Hills Palms, Joshua Tree National Park, Mecca Hills and Orocopia Mountains, Dos Palmas, Coachella Valley Stormwater Channel and Delta, and Santa Rosa and San Jacinto Mountains Conservation Areas, will be conducted to the maximum extent Feasible outside of the May 1— September 15 nesting season for yellow-breasted chat. (Final MSHCP, p. 4-195.) If Covered Activities must occur during the nesting season, surveys shall be conducted to determine if any active nests are present. (Ibid.) If active nests are identified, the Covered Activity shall not be conducted within 200 feet of an active nest. (Ibid.) If surveys conducted during the nesting season document that Covered nesting riparian bird Species are not present, the Covered Activity may proceed. (Ibid.) Based on the above, impacts to the yellow-breasted chat are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 23. Impacts to the summer tanager (Piranga rubra). Individuals occurring outside the Conservation Areas will be subject to Take, including those in migratory Habitat east of the Coachella Canal and in a small portion of Dos Palmas. (Final EIR/EIS, p. 4-109.) Approximately 168 acres of all breeding Habitat and 15,278 acres of migratory Habitat will be subject to Take under the Plan. (Final MSHCP, Table 4-114.) RMPUR\RI IARGRGAVLS�265886.1 5 � RESOLUTION NO. 06-28 Features of the MSHCP that will reduce Project Impacts. Ninety-four percent of the modeled summer tanager breeding Habitat and 71 % of the modeled summer tanager migratory Habitat is conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 1,037 acres of modeled breeding Habitat together with Existing Conservation Land for a total of 2,563 acres of breeding Habitat conserved. (Ibid.) Permittees will also protect and manage 19,638 acres of modeled migratory Habitat together with Existing Conservation Land for a total of 40,924 acres of migratory Habitat conserved. (Ibid.) The Plan will provide permanent protection to riparian Habitat via acquisition and management in several Conservation Areas and by establishment of permanent riparian Habitat in the Coachella Valley Storm Channel and Delta Conservation Area. (Final EIR/EIS, p. 4-] 09.) CVWD will establish 44 acres of permanent Sonoran cottonwood-willow riparian forest in the Coachella Valley Stormwater Channel and Delta Conservation area as described in Section 4.3.20 of the MSHCP. (Final MSHCP, Table 4-116.) In addition, the Plan requires that, where disturbance of a given number of acres of a riparian natural community is authorized, an equivalent number of acres will be replaced to ensure that no net loss occurs. (Ibid.) Implementation of biological monitoring and Adaptive Management will also take place to ensure Conservation of the summer tanager. (Ibid.) Essential Ecological Processes will also be protected, including RMPUB\RHARGR�,AVES�265886.1 SZ RESOLUTION NO. 06-28 hydrological regimes necessary to maintain riparian Habitat. In addition, the Required Avoidance, Minimization, and Mitigation Measures of Section 4.4 of the MSHCP require that Covered Activities, including construction and O&M activities, in riparian Habitat of the Cabazon, Stubbe and Cottonwood Canyons, Whitewater Canyon, Upper Mission Creek/Big Morongo Canyon, Thousand Palms, Indio Hills Palms, Joshua Tree National Park, Mecca Hills and Orocopia Mountains, Dos Palmas, Coachella Valley Stormwater Channel and Delta, and Santa Rosa and San Jacinto Mountains Conservation Areas, will be conducted to the maximum extent Feasible outside of the May 1— September I S nesting season for summer tanager. (Final MSHCP, p. 4-195.) If Covered Activities must occur during the nesting season, surveys shall be conducted to determine if any active nests are present. (Ibid.) If active nests are identified, the Covered Activity shall not be conducted within 200 feet of an active nest. (Ibid.) If surveys conducted during the nesting season document that Covered nesting riparian bird Species are not present, the Covered Activity may proceed. (Ibid.) Based on the above, impacts to the summer tanager are less than significant and the benefits conferred by the Plan will provide permanent protection to its riparian Habitat. 24. Impacts to the Southern yellow bat (Lasiurus xanthinus). Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring in isolated palm oases scattered throughout the KMPUF3\RHARCiREAVES�265886.1 53 RESOLUTION NO. 06-28 Plan Area. (Final EIR/EIS, p. 4-126.) Approximately 78 acres (6%) of all Habitat and 9% of non-Federal lands will be subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Ninety-four percent of the 1,329 acres of occupied or potential yellow bat Habitat is conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 590 acres of modeled Habitat together with Existing Conservation Land for a total of 1,250 acres conserved. (Ibid.) The Plan will protect Essential Ecological processes including hydrological regimes necessary to maintain fan palm oases and implement biological monitoring and Adaptive Management to ensure Conservation of yellow bat Habitat. (Ibid.) The Plan will also conserve occupied and potential Habitat in native fan palm oases. (Ibid.) Finally, existing wetland laws and CEQA requirements that protect the fan palm oases could further reduce impacts to the southern yellow bat, if any are expected to be minor and insignificant. (Final EIR/EIS, p. 4-126.) Based on the above, impacts to the Southern yellow bat are less than significant. 25. Impacts to Coachella Valley round-tailed ground squirrel (Spermophilus tereticaudus chlorus). Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring east of Desert Hot Springs, on the Big Dune and along the Coachella Canal RMPUD\Rf IARGRLAVES�265886.1 54 RESOLUTION NO. 06-28 south of I-10. (Final EIR/EIS, p. 4-120.) Approximately 60,187 acres (59%) of all Habitat and 69% of non-Federal lands will be subject to Take under the MSHCP. (Ibid.) There will be approximately 1,379 acres (6%) of Core Habitat subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Ninety-four percent of the Core Habitat for this ground squirrel will be conserved and 33% of the occupied or potential Habitat will be conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 20,657 acres of modeled Habitat together with Existing Conservation Land for a total of 33,778 acres conserved. (Ibid.) Using the criteria set forth by the Scientific Advisory Committee, the MSHCP has established Conservation Areas to protect this species. (Final EIR/EIS, p. 4-121.) Four of these Conservation Areas contain Core Habitat and 16 protect Other Conserved Habitat. (Final MSHCP, Table 4-116.) The Conservation Areas are large enough to contain hundreds of animals and are adequately connected to each other to allow genetic exchange. (Final EIR/EIS, p. 4-121.) The MSHCP ensures Conservation of Essential Ecological Processes including sand source/sand transport systems; maintains Linkages among all conserved populations; and implements biological monitoring and Adaptive Management to ensure long-term persistence (Final MSHCP, Table 4-116.) FLMPUI3\RHARC;RFiAVFS�2G5886.1 SS RESOLUTION NO. 06-28 Because occupancy rates for this ground squirrel are high in mesquite hummocks, it is therefore desirable to preserve the natural communities with a mesquite component for this squirrel. (Final EIR/EIS p. 4-121.) Substantial stands of inesquite hummocks and dunes are conserved within the Willow Hole and Thousand Palms Conservation Areas. (Ihid.) As discussed in Section 8 of the Plan, the Monitoring Program will include the use of appropriate methods and technologies (which may change over time) to monitor groundwater levels in the Willow Hole, East Indio Hills, and Thousand Palms Conservation Areas where a substantial lowering of the water table could have a significant adverse impact on mesquite hummocks. (Ibid.) Should monitoring detect a substantial lowering of the water table or a decline in mesquite health, the Plan specifies procedures to be taken to ameliorate potentially significant effects. (Ibid.) Finally, Section 4.4 of the Plan requires that most Construction Activities in Cabazon, Willow Hole, Thousand Palms, Indio Hills Palms, East Indio Hills, Dos Palmas, Coachella Valley Stormwater Channel and Delta, and Santa Rosa and San Jacinto Mountains Conservation Areas avoid mesquite hummocks and mesquite bosque to the maximum extent Feasible. (Final MSHCP, p. 4-201). Based on the above, impacts to the Coachella Valley round-tailed ground squirrel are less than significant and the benefits conferred by the Plan will protect adequate unfragmented Habitat, maintain Essential Ecological RMPUB\RFIARGRtAVES�265886.1 56 RESOLUTION NO. 06-28 Processes to sustain the Habitat, and protect Biological Corridors and Linkages, as appropriate. 26. Impacts to the Palm Springs pocket mouse (Perognathus longimembris bangsc�. Individuals occurring outside the Conservation Areas will be subject to Take, including those occurring east of Desert Hot Springs, on the Big Dune, between the southern Indio Hills and the Little San Bernardino Mountains, east of the Coachella Canal south of I-10 and in the North Shore area. (Final EIR/EIS, p. 4-123.) Approximately 74,218 acres (52%) of all Habitat and 62% of non-Federal lands will be subject to Take under the MSHCP. (Ibid.) There will be approximately 1,933 acres (6%) of Core Habitat subject to Take under the Plan. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Ninety-three percent of the Core Habitat for the pocket mouse will be conserved and 40% of the occupied or potential Habitat is conserved under the Plan. ((Final MSHCP, Table 4-116.) This includes protection of 77% of the known occurrences for the mouse. The MSHCP will result in the Conservation of 35,959 acres of modeled Habitat together with Existing Conservation Land for a total of 56,873 acres conserved. (Final MSHCP, Table 4-116.) The Plan will ensure Conservation of Core Habitat within five Conservation Areas; Protect Other Conserved Habitat in 16 Conservation Areas through adherence to other Conservation Objectives; Ensure KMPUA\RHARGRGAVES�265886.1 S% RESOLUTION NO. 06-28 Conservation of Essential Ecological Processes including sand source/sand transport system; Maintain Linkages among all conserved populations; and Implement biological monitoring and Adaptive Management to ensure long-term persistence. (Ibid.) Implementation of the Plan will maintain and enhance population viability of the Palm Springs pocket mouse which currently receives no protection outside of the existing Coachella Valley Fringe-Toed Lizard Preserve System. (Ibid.) Management and monitoring prescriptions will further enhance ]ong-term Conservation of this species. (Ibid.) 27. Impacts to Peninsular Bighorn Sheep (Ovis Canadensis ne[sonc�. Approximately 6,533 acres (3%) of all Habitat for the Peninsular Bighorn Sheep ("PBS") and 6% of non-Federal lands would be subject to Take under the MSHCP. (Final EIIt/EIS, p. 4-117.) Habitat impacts outside the Conservation Areas would occur primarily in the Pinyon Flats area under the MSHCP. (Ibid.) Features of the MSHCP that will reduce Project Impacts. Ninety-seven percent of the Essential Habitat for the PBS will be conserved under the Plan. (Final MSHCP, Table 4-116.) The MSHCP will result in the Conservation of 30,226 acres of modeled Habitat together with Existing Conservation Land for a total of 165,856 acres conserved. (Ibid.) RMPUB\RHARGREAVES�265886.1 Sg RESOLUTION NO. 06-28 The Plan contains several management strategies designed to avoid Take of the PBS. First, the Plan will protect Essential Habitat for the PBS as delineated in the final Recovery Plan for PBS in the Peninsular Ran�es. California (USFWS 2000). (Ibid.) Second, the Plan contains measures to control and manage activities that degrade PBS Essential Habitat within the Conservation area. (Ibid.) This could include human disturbance, Habitat fragmentation, and edge effects. (Ibid.) Third, the Plan provides mechanisms to reduce impacts from invasive species. (Ihid.) Fourth, fire management guidelines may be developed where necessary. (Ibid.) Fifth, restoration and enhancement of degraded Habitat are options that may be used. (Ibid.) And finally, Section 4.4 of the MSHCP (Required Avoidance, Minimization, and Mitigation Measures) contains further avoidance requirements. That section states that completion of Covered Activities in PBS Habitat in the Cabazon, Snow Creek/Windy Point, and Santa Rosa and San Jacinto Mountains Conservation Areas will be conducted outside of the January 1- June 30 lambing season unless otherwise authorized through a Minor Amendment to the Plan with concurrence from the Wildlife Agencies. (Final MSHCP, p. 4-201.) O&M of Covered Activities, including but not limited to refinishing the inside of water storage tanks, shall be scheduled to avoid the lambing season, but may extend into the January 1— June 30 period if necessary to complete the activity, upon concurrence with the Wildlife Agencies. (Final MSHCP, p. 4-201.) RMPUI3�RIiARCiR�,AVrS�265886.1 59 RESOLUTION NO. 06-28 Section 4.4 further states that for new projects in the aforementioned Conservation Areas, no toxic or invasive plant species may be used for landscaping. (Ibid.) For existing public infrastructure facilities which have landscaping in PBS Habitat in the Cabazon, Snow Creek/Windy Point, and Santa Rosa and San Jacinto Mountains Conservation Areas, the Permittees who have such facilities will, with respect to those facilities, develop and implement a plan and schedule to remove or prevent access to oleander and any other plants known to be toxic to PBS. (Ibid.) The plan and schedule will be prepared within one (1) year of Permit issuance. (Ibid.) The majority of the Santa Rosa and San Jacinto Mountains Conservation Area, a Conservation Area listed by the Recovery Plan for the PBS as a recovery region, is subject to the Habitat Evaluation and Acquisition Negotiation Strategy ("HANS") process described in Section 6.6.1.2 of the Plan. The HANS process is to be utilized to ensure that all Development complies with the Conservation Goals and Objectives of the MSHCP for conserving Essential Habitat and alleviating threats to the Plan Area population. (Final MSHCP, p. 6-22; Table 4-116.) In addition, Land Use Adjacency Guidelines set forth in Section 4.5 of the Plan establish parameters by which potential impacts to PBS and their Habitat will be judged. These include adverse alterations to natural drainages, introduction of toxic or hazardous materials, light and noise, and the introduction of toxic and invasive plants. FLMYUB\RHARCiREAV`S�265886.1 6n RESOLUTION NO. 06-28 Finally, the Species Objectives for PBS (Section 9.8.3.1 of the MSHCP) include ensuring that implementation of the MSHCP is consistent with the recovery strategy in the Recovery Plan to the maximum extent feasible. (Final EIR/EIS, p. 4-118.) Based on the above, impacts to the PBS are less than significant and the benefits conferred by the Plan will provide permanent protection to its Habitat. E. Cultural Resources (excluding Revised Trails Plan) The MSHCP involves detailed Conservation planning, management and monitoring within Conservation Areas, which will enhance the Conservation of cultural resources by precluding Development that may impact those resources. (Final EIR/EIS, p. 4-179.) All conditionally compatible uses, including future planning and development of trails, trailheads, and interpretive facilities (i.e. information kiosks) must follow guidelines specified in the Plan that will protect cultural resources. (Ihid.) In addition, certain Allowable Uses in the Reserve System, including activities associated with reserve management, monitoring and scientific research, will not result in any significant land disturbance. (Ibid.) Thus, the Plan will not generate adverse impacts on sensitive cultural resources. (Ibid.) Accordingly, there are no significant impacts to cultural resources from the MSHCP. F. Environmental Justice RM YUB\R!{ARGREAV ES�265886.1 61 RESOLUTION NO. 06-28 Since its inception, the MSHCP planning process has been open to the public in an effort to disseminate information, solicit comments, and provide opportunities for public input. (Final EIR/EIS, p. 4-249.) Three public scoping meetings, which were fully noticed in local newspapers and mailings to public interest groups and potentially affected landowners, were held in 2000 in the western, central, and eastern portions of the Coachella Valley. (Ibid.) More than a dozen meetings were held by the BLM to solicit input and feedback from special interest groups. (Ihid.) All meetings of the Project Advisory Group ("PAG"), which has met approximately once a month since 1998, have been open to the public. (Ibid.) The primary objectives of the proposed Plan are: (1) to preserve undeveloped, uninhabited open space lands, which can be used to create large, interconnected preserves for sensitive species and their Habitats, (2) to provide a regulatory process through which Development can proceed in an efficient way, and (3) to standardize mitigation/compensation measures for the Covered Species in a manner that satisfies applicable Federal and State laws pertaining to Endangered Species protection. (Ibid.; Final MSHCP, § 1.2.) The Plan Area includes City and County lands in Eastern Riverside County believed necessary to achieve these goals, and it does not target or exclude any community or parcel of land based on demographic or income characteristics. (Ibid.) No Indian Reservations are subject to the MSHCP. The MSHCP will not result in any adverse, direct or disproportionate impacts to minorities or minority populations, low income populations, concentrated Native American populations or children. (Final EIR/EIS, pp. 4-246 through 4-248.) KMPUB\R}IARGRLAVES�26588G.1 62 RESOLUTION NO. 06-28 Therefore, no significant impacts to minority populations, low income populations, Native American populations, or children will result from implementation of the MSHCP. G. Geology and Soils While the Plan does provide for minimal building (i.e. information kiosks) and potentially provides for minimal soil disturbance (i.e. trail construction), the MSHCP does not allow Development that would otherwise not be permitted in areas where geologic hazards occur. (Final EIIt/EIS, p. 4-34.) In fact, the MSHCP will reduce the exposure to geologic hazards by acquiring lands for Conservation. (Ibid.) Existing General Plans, zoning ordinances, building codes, and environmental review policies, standards, and requirements will remain in effect under the MSHCP to ensure that any Development in Conservation Areas will assess potential hazards and impacts and enforce relevant laws and regulations. (Ibid.) Accordingly, impacts on soils and geology are less than significant. H. Hazards and Hazardous Materials The MSHCP does not require or promote the transport, use, or disposal of hazardous materials. (Final EIR/EIS, p. 4-251.) Nor will the Plan facilitate a hazardous release of materials, substances or waste. (Ibid.) Likewise, the Plan will not directly involve the building of any structure on a site which is included in the list of hazardous materials sites compiled pursuant to Government Code Section 65962.5, creating a significant hazard to the public or the environment. (Ibid.) In addition, as a Conservation Plan, the Plan does not facilitate the Development of KMPUF3\RHAKGKEAVFS�265886.1 63 RESOLUTION NO. 06-28 residences or buildings related to an airport land use plan area or airstrip, nor does the Plan cater to any involvement of persons residing or working in such areas. As such, the Plan will not result in a safety hazard for people residing or working within an airport land use plan area or within the vicinity of a private airstrip. (Ibid.) Nor does the Plan allow for or impair an adopted emergency response plan. (Ibid.) Finally, the Plan will not expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands. (Final EIR/EIS, p. 4-250 through 4-252.) Management of the Reserve System will entail the limited use and storage of herbicides and pesticides to control exotic or invasive non-native plant and animal species. (Final EIR/EIS 4-251.) This use and storage is an allowable use which would be overseen by the appropriate Reserve Management Unit Committee and would comply with all applicable laws and regulations. (Ibid.) Because the implementation of the MSHCP will not pose or create a significant threat or hazard, nor expose the public to significant hazardous or toxic materials, no mitigation measures are required. I. Hydrology and Water Quality Existing alluvial fans and floodplains in the Coachella Valley have previously been selected and developed for large-scalc groundwater recharge activities. (Final EIR/EIS, p. 4-52.) The MSHCP ensures, rather than interferes with, the continued functioning of these activities in several ways. For example, the RMPUB\RHARGREAVES�265886.1 �4 RESOLUTION NO. 06-28 MSHCP provides Take Authorization for CVWD planned groundwater recharge facilities and the continued operation of its existing groundwater recharge facilities within the Plan Area. (Ibid.) CVWD must conserve the lands within the Whitewater Floodplain Preserve in perpetuity, and also cooperate with CVCC in the Conservation of other CVWD lands in the Conservation Areas. .(Final EIR/EIS, p. 4-53.) In addition, the Plan provides Take Authorization for the Operation and Maintenance of levees and flood control channels within the Conservation Areas to ensure that Plan implementation does not expose people or structures to significant risk of loss, injury, or death from flooding, including flooding as a result of the failure of a levee or dam. (Ibid.) Further, the Plan will not in itself permit housing within a 100-year flood hazard as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map. (Ibid.) Nor will the Plan itself permit structures which would impede or redirect flood flows within a 100-year flood hazard area, or create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff. (Ibid.) The Plan also will not contribute to inundation by seiche, tsunami, mud or debris flow since it will not create any physical changes that would cause or contribute to such inundation. (Ibid.) In contrast, the Plan will conserve many floodplain areas, thus reducing the potential for structures to be built in these areas. (Ibid.) RM PUD\RI IARGREAV ES�265886.1 GS RESOLUTION NO. 06-28 Also, through Reserve Assembly, the MSHCP will not substantially alter any existing drainage pattern in a manner that would result in substantial erosion or siltation on- or off-site, nor in a manner that would substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net-deficit in aquifer volume or a lowering of the local groundwater table level. (Ibid.) Because the MSHCP will conserve many floodplain areas, it will reduce the potential for structures to be built in such areas. (Ibid.) The MSHCP also does not propose any significant change to existing or planned flood control projects or facilities. Nor will the MSHCP affect existing regulations for Development on mapped floodplains which are intended to reduce risk to lives or property. (Ibid.) For the above reasons, the MSHCP will not conflict with but rather facilitates the requirements of federal agencies to act to reduce risk of flood loss and minimize impacts to human safety, health and welfare, and to restore the natural and beneficial values of floodplains. (Final EIR/EIS, p. 4-54.) For the foregoing reasons, the MSHCP will not violate any water quality standards or waste discharge requirements, nor impede groundwater recharge. Therefore, no significant impacts to hydrology and water quality will result from implementation of the MSHCP. RMVLII3\R} IARGRLAVES�26588G.1 66 RESOLUTION NO. 06-28 J. Land Use and Planning The general plan land use designation information utilized by the MSHCP is based in part on the GIS land use designation information for the Plan Area provided to CVAG from the Southern California Association of Governments ("SCAG"). SCAG based its map on the information largely provided it by member cities. (Response to Comment Y01-36.) Utilizing this information provided by SCAG, the MSHCP was designed to avoid conflicts with any plans adopted for the purpose of avoiding or mitigating an environmental effect. (Final EIR/EIS, p. 4-7.) The MSHCP also does not change existing general plan land use designations. (Response to Comment Z02-29.) In fact, several components of the Plan ensure that the Plan is consistent with general land use designations and that neither the CVCC nor the Wildlife Agencies will have decision-making authority over land use decisions. The Wildlife Agencies may, but are not required to, submit comments on proposed projects in the Conservation Areas through the Joint Project Review process. (Final MSHCP, pp. 6-20 through 6-22; Response to Comment Z02-16.) The design of the Conservation Areas of the MSHCP took into account the General Plan land use designations of the Local Permittees, and approximately 9l % of the land in the Conservation Areas has an Open Space designation to conserve open space resources. (Ibid.) The proposed Plan is also consistent and compatible with the objectives of local, State, regional and Federal agencies, and tribal land use plans, policies and RM PUB\RI iARGREA V F,S�265886.1 6% RESOLUTION NO. 06-28 controls for the Plan Area through ongoing consultation and coordination. (Final EIR/EIS, p. 4-8.) Because the distribution of the Conservation Areas accommodates the physical integrity of the communities, the MSHCP does not contribute towards the physical separation of all but one community. (Ibid.) However, the Upper Mission Creek/Big Morongo Canyon Conservation Area adjoins the existing urbanized portion of Desert Hot Springs and creates a separation between it and future planned Development. (Ibid.) The separation, however, ranges between 0.25 miles and 0.5 miles and follows the Morongo Wash floodplain area, which already constitutes a natural separation. (Ibid.) The proposed Plan also provides Take Authorization for major roads that connect the two portions of the city. (Ibid.) Additionally, a trail system is allowed in the Conservation Area and would serve as an amenity to help unite the two areas of the city. (Ibid.) The MSHCP does not conflict with any applicable habitat conservation plan or natural community conservation plan. (Ibid.) Based on the above, no significant impacts to land use will result from implementation of the MSHCP. Revised Trails Plan. Proposed new trails have been carefully sited to largely stay within public lands and/or rights of way. (Final EIR/EIS, p. 5-18.} However, proposals to construct perimeter trails and other new trails will be deferred until the initial phase of the monitoring and research program has been completed. (Final EIR/EIS, p. 5-19.) This approach will ensure that trail conditions (e.g., use RMPUD\R}iARGREAV�S�265886.1 68 RESOLUTION NO. 06-28 levels) are consistent once the research and monitoring programs are initiated. (Ibid.) Thus the Revised Trails Plan does not conflict with any plans adopted for the purpose of avoiding or mitigating an environmental effect, and impacts are less than significant. The development of the Revised Trails Plan has involved close coordination with local jurisdictions and state and federal agencies to assure that the Revised Trails Plan is consistent and compatible with the objectives of local, state, regional and federal agencies, and tribal land use plans, polices and controls for the Santa Rosa and San Jacinto Mountains. (Final EIR/EIS, pp. 5-18 through 5-19.) Based upon the coordinated and integrated nature of the Revised Trails Plan, impacts to federal, state, regional, local, or tribal land use plans, policies, or controls are less than significant. (Final EIR/EIS, p. 5-19.) The Revised Trails Plan also does not result in the physical separation of a community. Most of the trail alignments within the Revised Trails Plan are outside currently developed areas and do not intrude into existing or planned urban Development. (Ibid.) The Revised Trails Plan also does not conflict with any applicable habitat conservation plan or natural community conservation plan. (Ibid.) Several proposed alternative alignments to the Palm Desert to La Quinta Connector Trail could have a significant adverse impact on land use. (Final EIR/EIS, pp. 5-19 through 5-20.) The Palm Desert to La Quinta Connector Trail will be a Covered Activity unless research results indicate that this trail would RMPtJd\RHARGREAVGS�265886.1 69 RESOLUTION NO. 06-28 adversely affect PBS. (Final E1RlEIS, p. 5-19.) If significant adverse impacts to native and/or captive breeding populations result as determined through the research program described in Element 2, and Feasible mitigation measures cannot be implemented to reduce this impact, then all or a portion of this trail as originally proposed will not be constructed. (Ibid.) Subsequent CEQA and/or NEPA analysis of the connector trail will also be conducted. (Ibid.) K. Mineral Resources The MSHCP may result in the potential loss of a mineral resource (sand and gravel) within the Plan Area, or may result in the loss of availability of wind energy to the region. However, impacts to mineral resources under the MSHCP will be less than significant. First, the Conservation Areas were designed to minimize inclusion of mining operations, thus allowing continued mineral extractions. (Final EIR/EIS, p. 4-37.) In the Plan Area, there are 17,527 acres that have been designated as Mineral Resource Zone 2("MRZ-2"). (Ibid.) Of this acreage, ten thousand acres of Mineral Resource Zone 2(lands containing significant mineral deposits) are included in the Conservation Areas, including 1,983 Federally owned acres, 921 acres of non-Federal Existing Conservation Land, and 1,051 acres which have been approved for mining and will receive Take Authorization. (Ibid.) Thus, only 6,052 acres of MRZ-2 lands could be directly affected by the Plan. (Ibid.) Because Development will be limited in Conservation Areas, it is foresecable that this resource may not be developed under the MSHCP. (Ibid.) However, this RMPUB\RHARGREAVES�265886.1 %O RESOLUTION NO. 06-28 impact will not be significant because the Plan Area contains sufficient sand and gravel resources to meet the demand for approximately 130 years at the current rate of consumption. (Ibid.) Second, the Plan does not affect or modify existing Permits or require new Permits, and does not impose limits on the extraction of available resources. As such, existing mining operations, although not Covered Activities, will not be affected by the MSHCP. (Ibid.) Third, existing mineral resources will not be physically affected by lands conserved under the Plan. Finally, certain mining areas, such as certain Indio Quarry lands, will actually benefit by implementation of the MSHCP because they will receive Take Authorization. (Ibid.) Impacts to energy resources, specifically wind energy conservation systems (turbines) within the Plan Area would be less than significant. (Final EIR/EIS, p. 4-39.) Over the past 20 years, the most economically developable wind resources in the Plan Area have been developed. (Ibid.) Second, because windfarm development is a low impact activity, any remaining future development will not be significantly in conflict with or constrained by adoption and implementation of the MSHCP. (Final EIR/EIS, p. 4-40.) Third, the MSHCP does not preclude the continued O&M of the wind turbines; nor does it preclude replacing older turbines with new ones, as long as replacement is consistent with the Conservation Objectives. (Response to Comment D10-02.) Finally, the Plan KMPIJB\RHARCiREAVC'S�265886.1 % 1 RESOLUTION NO. 06-28 provides Take Authorization for ground disturbance associated with windfarm Development in Conservation Areas that is consistent with applicable Conservation Goals and Objectives. (Final EIR/EIS, p. 4-40.) In addition, the Plan will not constrain future solar or thermal energy facilities that may be built. (Ibid.) There are no existing or planned timber harvesting areas in the Plan Arca; thus there are no impacts. (Final EIR/EIS, p. 4-42.) Additionally, the Plan would have no effect on any commercially viable timber resource in any area outside but adjacent to the Plan Area. (Ibid.) L. Noise The MSHCP will not result in the generation of significant noise levels as defined by CEQA. (Final EIR/EIS, p. 4-197.) The MSHCP will result in very little construction or maintenance activities that will generate significant noise impacts. (Ibid.) Construction activities under the Plan will be limited to minor construction projects associated with installation of fencing, and the construction of trails and trailhead facilities. (Ibid.) All of these activities will be very limited in extent and short in duration and will be less than significant. (Ibid.) M. Population and Housing Since 1980, population in the Coachella Valley has grown rapidly, and is expected to increase to 440,301 by 2010 and 540,901 by 2020. (Final EIR/EIS, p. 4-212.) If the trend continues, the Coachella Valley and its jurisdictions will RMPUB\Rf iARGRE:AVES�265886.1 %2 RESOLUTION NO. 06-28 require additional housing to support the increase in population. Because a goal of the MSHCP is to conserve a significant amount of acreage for the benefit of species' preservation within the Plan Area, affected jurisdictions could have less acreage with which to consider the placement of proposed Developments, resulting in a potential impact from implementation of the MSHCP. Relevant impact areas are analyzed below. County and City Budgets. The MSHCP has developed a fiscal impact analysis to calculate the potential costs and revenues of each jurisdiction if buildout of lands actually occurred. (Final EIR/EIS, p. 4-216.) The analysis concluded that in most jurisdictions, the potential buildout of the lands proposed for inclusion in Conservation Areas would result in residential Development at low or very low densities, and would result in a negative cash flow to the jurisdiction at buildout. (Ibid.) In fact, only Palm Springs (+$706,868) and Riverside County (+$22,100,100) would generate positive annual cash flow by building out developable Conservation Lands. (Ibid.) The net loss to Palm Springs would represent 0.6% of the City's annual operating revenue, while the County would lose approximately 2% of its General Fund Revenues. (Final EIR/EIS, at pp. 4-218 through 4-219.) Thus, because buildout in most jurisdictions would create a negative funding stream, and in Riverside County and Palm Springs the loss of such potential funds would not create a substantial adverse economic impact on each jurisdiction's economy, such impacts to each jurisdiction are less than significant. RMPUA\RHARGREAVES�265886.1 %3 RESOLUTION NO. 06-28 Development Potential. The analysis also compared potentially developable lands within and outside of the Conservation Areas for each jurisdiction. (First EIR/EIS, pp. 4-216 through 4-233.) For the nine cities within the Plan Area, a combined 42,883 acres of Development potential lie outside the proposed Conservation Areas, and approximately 9,644 acres with at least some (and often constrained) Development potential lie within the Conservation Areas. (Final EIR/EIS, pp. 4-219 through 4-231.) Regarding Riverside County, 153,271 acres of developable lands are within the Conservation Areas and 90,513 acres are outside. (Final EIR/EIS, p. 4-231.) However, most of the lands within the Conservation Areas are designated as low-density, very-low density, or urban, whereas the lands outside Conservation Areas represent more suburban and urban densities. (Final EIR/EIS, pp. 4-219 through 4-231.) Therefore, the number of development units that may be constructed in Conservation Areas is low even without the Plan, and given the fact that the MSHCP allows Development on 10% of the land within the Conservation Areas, a substantial portion of these lands could be used for construction even with the Plan. Thus, the impacts of the Plan associated with residential, commercial, and industrial Development potential on lands within Conservation Areas are less than significant. (Final EIR/EIS, p. 4-231.) Growth Constraints. Future residential Development will be minimally impacted in Coachella, Indian Wells, Indio, and La Quinta. (Final EIR/EIS, p. 4-232.) In the remaining cities and in the unincorporated portions of the Plan Area, impacts will be primarily on lands within Conservation Areas but, as RMPUB\R1IARGR�AVES�2658R6.1 %4 RESOLUTION NO. 06-28 discussed above, these lands have been designated for low or very low density designations. (Ibid.) Thus, based on the above analysis, impacts to future residential growth will be less than significant. For the entire Plan Area, approximately 8,300 acres of lands with potential for commercial Development are located outside the Conservation Areas, and less than 80 acres lie within Conservation Areas. (Final EIR/EIS, p. 4-233.) Given the fact that the Plan Area encompasses over 1.1 million acres, impacts to future commercial Development are less than significant. Approximately 14,000 of the 15,000 acres of land currently designated for industrial use are located outside the Conservation Areas. (Final EIR/EIS, p. 4-234.) Thus, the Plan will not constitute a significant constraint to industrial Development in the Plan Area. Based on the above analysis, the MSHCP will not significantly constrain Development potential within the Plan Area. Thus, impacts are overall less than significant. Cost of Development. Based on the analysis in the EIR/EIS, a developer would in all likelihood typically incur significantly more costs without the MSHCP than with it. (Final EIR/EIS, p. 4-236.) Therefore, the impacts associated with costs of Development would be beneficial. Affordable Housing. In most jurisdictions, there will be minimal or no impact on affordable housing, since lands designated for medium to high density residential Development (where affordable housing is most likely to occur) occur outside the ItMPUB\RI-IAKGFtEAVES�265886.1 %5 RESOLUTION NO. 06-28 Conservation Areas. (Final EIR/EIS, p. 4-239.) Exceptions occur in Desert Hot Springs, Palm Desert, and the unincorporated areas of the Plan Area. In Desert Hot Springs, acreage in medium density designations could yield up to 557 dwelling units. (Final EIR/EIS, p. 4-237.) However, the Medium and High Density lands in Desert Hot Springs outside Conservation Areas have a potential capacity of 10,340 dwelling units. (Ibid.) In Palm Desert, lands designated for medium density Development could yield up to 128 dwelling units, whereas the 100 acres outside Conservation Areas could yield 530 dwelling units. (Ibid.) In the unincorporated areas, the ratio is 1,391:9,121. (Ibid.) Because such a small amount of potentially affordable land will be conserved in comparison to affordable available land outside the Conservation Areas, overall impacts will be less than significant. Employment. Potentially developable lands most impacted are designated for low to very low density residential Development, which has limited potential to generate jobs. (Final EIR/EIS, p. 4-239.) Commercial and industrial lands have more potential for sustainable employment. However, commercial lands within Conservation Areas represent less than one percent of the total lands. (Final EIR/EIS, 4-240.) This loss in potential employment is expected to be equivalent to the loss in leasable retail space, and represents a less than significant impact. (Ibid.) In addition, industrial lands within Conservation Areas represent 6.9% of the developable lands, also representing a less than significant impact. N. Utilities and Service Systems RMYlll3\RI IARGRi:AVES�265886.1 %6 RESOLUTION NO. 06-28 The MSHCP will provide Take Authorization for public facilities operated by CVWD, IID, County Flood Control, County Parks, and County Waste, as well as by the nine city Permittees in the Coachella Valley. (Final EIR/EIS, p. 4-207.) This will facilitate the O&M of public facilities and the delivery of services by these Permittees. (Ibid.) The MSHCP will provide the basis for the issuance of Take Authorization for Emergency access and Emergency response within the MSHCP Reserve System. (Ibid.) The MSHCP also allows limited Development in these Areas, so that additional new public facilities are not precluded in the Conservation Areas. (Ibid.) Non-permittees that provide public services requiring Take Authorization could seek such Authorization under the Permits through the Participating Special Entity provisions. (Ibid.) The Plan will have a beneficial impact on electric power facilities as IID's Covered Activities can proceed and be maintained. (Ibid.) Southern California Edison ("SCE") is not a Permittee under the MSHCP. (Ibid.) However, under the provisions set forth in Section 7.5 of the MSHCP, SCE may request Take Authorization for its activities from the CVCC pursuant to the Permits as a Participating Special Entity, consistent with the terms and requirements of the Permits, the Plan, and the IA. (Ibid.) Based upon an assessment of the potential impacts of the MSHCP on electric power facilities, natural gas transmission facilities, telephone and cable facilities, and the provisions of Sections 7.0 and 7.4 of the MSHCP, the MSHCP will not conflict with or obstruct construction of new public utilities or facilities, including above ground and subsurface energy, fuel or telecommunication transmission facilities. (Final EIR/EIS, pp. 4-207 through 4-209.) Nor will it conflict with or RMI'UB\KHARGREAVES�26588G.1 %% RESOLUTION NO. 06-28 obstruct the Operation and Maintenance of existing public utilities or facilities, including above ground and subsurface energy, fuel or telecommunication transmission facilities. (Ibid.) In addition, the Plan will not generate additional solid waste, with the exception of the waste discussed below. (Final EIR/EIS, p. 4-209.) Moreover, landfill related activities will be Covered Activities under the Plan, thereby creating a beneficial impact. (Ibid.) Therefore, the MSHCP will not conflict with or obstruct continued operation of existing landfill facilities. (Ibid.) The Plan will not exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board, or require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects. (Ibid.) Further, it does not require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects. (Ibid.) The Plan will not involve any deficiency in sufficient water supplies available to serve the project from existing entitlements and resources, and no new or expanded entitlements are needed. (Ibid.) The Plan could generate minor amounts of waste when trash is cleaned up from properties or exotic plant species are removed. (Ibid.) Adequate landfill capacity exists to accommodate the project's minimal solid waste disposal needs, and the Plan complies with federal, state, and local statutes and regulations related to solid waste. (Ibid.) KMPUI3\RHARGREAVES�265886.1 %g RESOLUTION NO. 06-28 Based on the above, no significant impacts to utilities and service systems will result from implementation of the MSHCP. O. Recreation The MSHCP provides the basis for the development of a system of local, County, state and federal wildlife and Habitat preserves of local and national importance. (Final EIR/EIS, p. 4-181.) The MSHCP provides guidelines for public access and recreation that will be implemented over time within the Reserve System. (Ibid.) Thus, implementation of this measure would have a less than significant effect on cross-country travel and camping. (Final EIR/EIS, p. 5-98.) The potential for expanded hiking, equestrian and other "passive" recreation in the MSHCP Reserve System is a significant benefit of the Plan. (Final EIR/EIS, p. 4-182.) In addition to trails, the Plan envisions interpretive centers, information kiosks and other facilities to enhance the open space experience the Reserve System would provide to the public. (Ibid.) Thus, the MSHCP will result in significant beneficial impacts for public use, trails and recreation in the Plan Area by increasing access to open space, restoring and protecting the underlying environmental resource. (Ibid.) No significant impacts to recreation will result from implementation of the MSHCP. Revised Trails Plan. The Revised Trails Plan will provide year-round use of 35 of the 40 trails covered by the Plan, or about 95 of 115 miles (83%) of trails that spread across the lower elevations of the Santa Rosa and San Jacinto Mountains. (Final EIR/EIS, p. 5-84.) These trails extend from the Snow Creek area west of RMPUE3\Rl1ARGRF;AVES�265886.1 %i RESOLUTION NO. 06-28 Palm Springs to Martinez Canyon south of La Quinta, and would assure the availability of a wide range of mountain hiking, biking, and horseback riding experiences. (Ibid.) Eighty-eight percent of trails addressed by the Revised Trails Plan, or 83% of total trail mileage, will be available for year-round use. (Ibid.) Thirty-eight of the 40 trails (or 105 of 115 miles of trails) addressed by the Revised Trails Plan are available for recreation during the maximum-usage months (January through April). (Ibid.) Only three trails totaling about 10 miles will be closed during the "hot season" from June 15 through September 30. (Ibid.) Data exists indicating that as the weather gets hotter, human trail use decreases. (Final EIR/EIS, p. 5-85.) Thus, considering the extent of available trails in combination with the lower levels of use, the effects of summer trail closures on recreational opportunities will be minor. (Ibid.) Closures of certain trails or trail segments to bicycles will be limited to those that complement existing closures by precluding access where continuation of use along a trail would result in a violation. (Ibid.) Therefore, these new restrictions will have a minor effect on trail use by mountain bicyclists. (Ibid.) Upon completion of the focused research program, study results and management recommendations will be integrated into a revised public use and trails Management Program, using best available science, professional judgment, and wildlife management principles where study results may be less than definitive. (Ibid.) Depending on study results, future restrictions on recreational use of existing trails may or may not be imposed. (Ibid.) RMPUT3\RHARGREAVFS�2G588G.1 8O RESOLUTION NO. 06-28 Construction of perimeter trails will be deferred under the Revised Trails Plan pending completion of a focused research. (Final EIR/EIS, p. 5-86.) Deferring the construction of new trails will not have a substantial effect on recreation. (Ibid.) Decommissioning of trails will occur only after completion of a focused research program, and no trails would be decommissioned coincident with approval of the Revised Trails Plan. (Ibid.) Therefore, impacts to recreational opportunities resulting from the Revised Trails Plan as it relates to trail rerouting, decommission, and removal are not anticipated at this time. (Ibid.) Cross-country travel and camping in essential PBS habitat from January 1 through September 30 would be prohibited due to potentially affecting recreational access to certain parts of the Santa Rosa and San Jacinto Mountains. (Final EIR/EIS, pp. 5-86 through 5-87.) Thus, opportunities for this activity would not be precluded, but access would be limited to a 106-day period each year. (Ibid.) In summary, implementation of the Revised Trails Plan will not substantially affect trail use opportunities on existing trails in the Santa Rosa and San Jacinto Mountains Conservation Area. P. Public Services Police, fire and other Emergency services operate under the direct authority of or through a service agreement with Permittees. (Final EIR/EIS, p. 4-209.) Section 7.3.2 of the MSHCP provides that local, state, and federal law enforcement entities will be allowed access to the Reserve Land as necessary to enforce the law. Medical, rescue, fire fighting operations, and other Emergency service RMPUFi\RHARGRF.AVES�2G5886.1 g 1 RESOLUTION NO. 06-28 providers will be allowed access to Reserve Lands to carry out operations necessary for the health, safety, and welfare of the public. (Final EIR/EIS, p. 4-208; MSHCP, § 7.3.2.1.) Local law enforcement agencies and other entities such as the National Guard or Immigration and Naturalization Service operating on Reserve Lands aze subject to existing state and federal laws. (Ibid.) The MSHCP will not create additional Permit requirements for these entities beyond those of existing state and federal laws. (Ibid.) Based upon an assessment of the potential impacts of the MSHCP, and the provisions listed above in Section 7.3 of the MSHCP, the Plan will not conflict with or obstruct police and fire protection services. The Plan will also not have signiftcant impacts on schools as it will not result in student increases nor the need to construct new school facilities. (Final EIR/EIS, p. 4-209.) Because the Plan focuses on Conservation of species and natural communities and the provision of recreational opportunities, it would not have adverse impacts on parks but instead will have a positive impact on recreation. (See Section O above.) Thus, no significant impacts to recreation will result from implementation of the MSHCP. Q. Transportation The MSHCP provides Take Authorization for both construction of planned roadways and improvements to certain existing roadways, both in and out of the Conservation Areas, listed in Section 3 and Sections 7.2 and 7.3 of the Plan. (Final EIR/EIS, p. 4-25.) The MSHCP includes design and sitting guidelines for RMPUH\KHARGREAVES�265886.1 82 RESOLUTION NO. 06-28 planned roadways. (Ibid.) The implementation of these guidelines will ensure that planned roadways are designed and constructed in a manner consistent with the objectives of the MSHCP, while providing for the efficient passage of persons and goods through the Coachella Valley, the alleviation of traffic congestion, the maintenance of level of service standards, and continuation of adequate Emergency access/evacuation routes. (Final EIR/EIS, pp. 4-25 through 4-27.) Since the operation, maintenance and construction of existing and planned roadways are covered activities within the MSHCP Conservation Area, potential transportation-related impacts resulting from implementation of the MSHCP will be less than significant. However, other roads are not Covered Activities under the Plan and will not receive Take Authorization. (Final EIR/EIS, pp. 4-25 through 4-26.) The Plan does not preclude Permittees from seeking approval of these roadway se�nents through the MSHCP Plan amendment process. (EIR, p. 4-25.) The Plan amendment process will allow the City of Desert Hot Springs to seek Take Authorization for these activities. (Ibid.) The MSHCP will indirectly affect the circulation system by limiting Development within the Conservation Areas, thus limiting the traffic generation in these areas. (Final EIR/EIS, p. 4-27.) This indirect effect will reduce traffic volumes on the overall circulation network. (Ibid.) As a practical matter, the trips that would have been generated in the Conservation Areas would have been relatively limited given the underlying land uses. (Ibid.) RMPUB\RI IARGRI:AVES�26588G.1 g3 RESOLUTION NO. 06-28 Some of the Development in the Conservation Areas may be reduced or shifted to other areas in the Coachella Valley due to acquisition of lands for Conservation from willing sellers. (Ibid.) This potential shifting of Development will not have significant impacts because the anticipated trips that would have been generated from the Conservation Areas would have been relatively low given the land use designations. (Ibid.) With a shift in the location of Development, the MSHCP could have the result of a net reduction in regional trip generation. (Ibid.) No levels of service on any designated major roadway will be affected. (Ibid.) Emergency access will not be constrained because the Plan will provide Take Authorization for Emergency access and activities in the MSHCP Reserve System. (Ibid.) The MSHCP will not place any lands in Conservation which would conflict with or hinder the operation of local or regional roadways or associated facilities. (Ibid.) Neither will it result in a substantial increase in traffic volumes, volume to capacity ratios or applicable policies plans or programs supporting alternative transportation systems on or serving roadway segments or intersections. (Ibid.) Emergency access will not be significantly affected nor will the Plan affect design features of any roadway that resulted in the creation of a hazardous condition. (Ibid.) Neither railroads nor airports in the Plan Area will be affected by the MSHCP. (Ibid.) Based on the above discussed features of the MSHCP, impacts to Transportation and Circulation are less than significant and no mitigation measures are required. RMPiJE3\RHARGREAVES�265886.1 g4 RESOLUTION NO. 06-28 BE IT FURTHER RESOLVED by CVAG that the following environmental impacts associated with the MSHCP are potentially significant, but each of these impacts will be avoided or substantially lessened by prescribed mitigation measures. A. Aesthetic Resources (Revised Trails Plan) 1. Potentiallv Si�nificant Impacts: Potential impacts to aesthetic resources resulting from implementation of the Revised Trails Plan are limited to those associated with the construction of new trails, especially those within and along the lower elevations of the Santa Rosa and San Jacinto Mountains. (Final EIR/EIS, p. 5-102.) However, approval for the construction of new perimeter trails and the Palm Desert to La Quinta Connector will be deferred pending completion of a focused research program to further evaluate the effects of recreational trail use on PBS. (Ibid.) 2. FindinQ: The Project includes the following mitigation measures that will reduce impacts to a less than significant level. (Final EIR/EIS, p. 5-106.) 2-a The Coachella Valley Conservation Commission, the Bureau of Land Management and implementing agencies shall assess new trail proposals and apply visual resources checklist and design principles as set forth in section 5.6.4 of the Final EIR/EIS. The standards set forth in the BLM Visual Resources Management Manual shall be applied to the analysis of future trail construction where applicable. (Final EIIt/EIS, pp. 5-103 through 5-106.) Findin�s ner State CEOA Guidelines Section 15091: RMI'UI3\RFIARGREAVES�265886.1 gS RESOLUTION NO. 06-28 (x) Changes or alternatives have been required in, or incorporated into, the Project which will avoid or substantially lessen the significant environmental effect (Subd. [a][ l]). () Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by other such agency (Subd. [a][2]). () Specific economic, legal, social, technological or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures of Project alternatives identified in the Final EIR (Subd. [a][3]). 3. Supportin� Exnlanation: New trail proposals will be evaluated for alignments that will reduce aesthetic impacts to less than significant levels by subjecting the proposed routes to the visual impact analysis discussed above. Guidelines will be implemented to avoid and minimize impacts which include initia] pre-design and construction assessments to minimize impacts. (Final EIR/EIS, p. 5-102.) The proposed MSHCP guidelines direct future trail alignments to existing dirt roads wherever possible. (Ibid.) Trailhead guidelines direct such facilities to areas where they will be compatible with Conservation Goals and Objectives. (Ibid.) New trail development within Conservation Areas outside the Santa Rosa and San Jacinto Mountains Conservation Area will be subject to the provisions of NEPA and/or CEQA, and will be required to demonstrate that trail and other facilities development would not have an adverse impact on visual or scenic resources. (Ibid.) B. Biological Resources (Revised Trails Plan) RMPUB\RHARGREAVLS�265886.1 g6 RESOLUTION NO. 06-28 1. Potential Si�nificant Imnacts: The scientific literature provides some support for the premise that recreational use of sensitive PBS Habitat (particularly during lambing and hot seasons) may negatively affect PBS. (Final EIR/EIS, p. 5-25.) Researchers have determined that, under certain circumstances, human recreation may temporarily displace PBS, disrupt foraging which may reduce nutrient acquisition, and cause uncertain levels of stress (Ibid.) However, uncertainty remains concerning the long-term effects or recreational use on PBS populations. (Ibid.) 2. Finding: To ensure that recreational disturbance does not significantly affect PBS, the Revised Trails Plan in the Santa Rosa and San Jacinto Mountains Conservation Area has adopted an Adaptive Management approach with an emphasis on research. (Final MSHCP, § 7.3.3.2.1) The Trails Plan will focus on multi-agency scientific data gathering to evaluate the effects of recreation trail use on PBS health, habitat selection, and long-term population dynamics. (Ibid) The overarching goal of this research program is to obtain empirical data from the Plan Area to guide future trails construction and management. (Ibid.) In order to assure that impacts from the Revised Trails Plan to PBS are less than significant, mitigation measures have been developed and integrated into the Revised Trails Plan. The following mitigation measures will reduce impacts to a less than significant level. 2-a The CVCC and agencies shall develop and implement a research and monitoring program ("Monitoring Program") on PBS population and habitat use, which also correlates levels and characteristics of trail use in the Trail Plan area. RMYUD\RHARGREAV6S�265886.1 g% RESOLUTION NO. 06-28 (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-2 through 5-4, 5-26 through 5-28, and 5-64 through 5-65.) 2-b The CVCC and agencies shall develop and implement a self-permit system to monitor levels and characteristics of human use. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-2, 5-28 through 5-29, and 5-65.) 2-c The CVCC and agencies shall close designated trails between June 30 and October 1. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-2, 5-29, and 5-65.) 2-d Agencies shall construct Perimeter and Palm Desert to La Quinta Connector Trails following focused biological analysis and appropriate CEQA & NEPA assessment. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-2 through 5- 35, and 5-65 through 5-66.) 2-e The CVCC and agencies shall develop and implement a public awareness and education program building on SRSJ Mountains National Monument resources. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-35 through 5-36, and 5- 66.) 2-f The CVCC and agencies shall annually conduct an assessment of the trails program and effect on PBS and trail use. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-2, 5-36 though 5-37, and 5-66.) 2-g The CVCC and agencies shall establish the need for and implement trail closures in response to population triggers or other Trails Plan criteria. (Final RM 1'UB\RHARGREAVES�265886.1 $ g RESOLUTION NO. 06-28 MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-4, 5-25 through 5-26, and 5-64 through 5-66.) 2-h The CVCC shall coordinate trail closures with USFWS, CDFG, BLM, or other parties of interest. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-4, 5-25 through 5-26, 5-64 through 5-66.) 2-i Art Smith and Mirage Trails shall be rerouted. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-63 through 5-64.) 2 j In the event a ewe group reaches 15 individuals or fewer, responsible parties shall meet and consuit on whether to close, reduce use or otherwise regulate related trails. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-4 and 5-64.) 2-k In the event a ewe group reaches 5 individuals or fewer, responsible parties shall immediately close related trails, and shall meet and consult on future trail use and/or otherwise regulate related trails. (Final MSHCP, § 7.3.3.2; Final EIIt/EIS, pp. 5-4 and 5-64.) 2-1 Dogs shall be prohibited on all covered trails, except for special use areas, as set forth in the Trails Plan. (Final MSHCP, § 7.3.3.2; Final EIR/EIS, pp. 5-41 and 5-67.) Findin�s per State CEOA Guidelines Section 15091: (x) Changes or alternatives have been required in, or incorporated into, the Project which will avoid or substantially lessen the significant environmental effect (Subd. [a][1]). KMPUB\RHARGREAVES�265886.1 $9 RESOLUTION NO. 06-28 () Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by other such agency (Subd. [a][2]). () Specific economic, legal, social, technological or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures of Project alternatives identified in the Final EIR (Subd. [a][3]). 3. Supportin� Exalanation: Because there is no established causative link between recreational use and impacts to PBS at the time of Project adoption, the Monitoring Program will be used to further evaluate the effects of recreational trail use on PBS within essential PBS Habitat in the Santa Rosa and San Jacinto Mountains, and to propose standards to reduce any potential future impacts to below a level of significance. (Final EIR/EIS, pp. 5-25 through 5-26.) The Monitoring Program will provide empirical data to inform decisions about future trails Management Program actions that complement PBS recovery and benefit or enhance PBS Conservation for the trail use as set forth in the Revised Trails Plan. (Final EIR/EIS, p. 5-27.) The components of the Monitoring Program will be designed to preclude potentially significant adverse effects on biological resources, as they will be constructed to serve as a mitigation strategy for any potentially adverse effects from trail use. (Ibid.) The Monitoring Program will help provide detail on the levels and type of trail use in the study area, primarily by the development and implementation of a self-permit system. (Final EIR/EIS, pp. 5-28 through 5-29.) The system will focus on evaluation of the use of recreational trails by hikers, equestrians, and mountain bikers as it relates to habitat use by PBS. (Ibid.) The RMPU}3\RHAKGREAVES\265886.1 9O RESOLUTION NO. 06-28 Monitoring Program will increase the amount of currently available data regarding periodic documentation of trail use, provide ongoing population surveys of PBS on an annual basis, and provide other data for consideration by the Trails Management Subcommittee that could result in trails management actions to reduce any impacts to PBS or their Habitat. (Ibid.) Hot season trail closures of designated trails between June 30th and October 1 st will avoid significant impacts to PBS and their access to essential water sources during the hottest and driest times of the year. (Ibid.) These closures will be beneficial to biological resources, especially PBS, that might otherwise avoid important water sources during this period of greatest need. (Ibid.) Proposals to construct perimeter trails and other new trails, including the Palm Desert to La Quinta Connector Trail, would be deferred until the initial phase of the monitoring and research program has been completed and potential impacts, if any, can be analyzed and addressed. (Final EIR/EIS, p. 5-35.) Unless research results show that recreational trail use would adversely impact PBS health, demography, population sustainability, and population connectivity, construction of the perimeter trails and other new trails, including the Palm Desert to La Quinta Connector Trail, could be initiated after appropriate CEQAJNEPA review. (Ibid.) This deferral will ensure that trail conditions (e.g., use levels) are consistent once the Monitoring Program is initiated. (Ibid.) Existing trailhead facilities will be used whenever possible. (Final EIR/EIS, p. 5-30.) Future proposals for new trails on Reserve Lands in the Santa Rosa and San Jacinto Mountains Conservation Area, other than the identified trails described herein, would be addressed on a case-by-case basis, subject to existing regulations, policies, and land management plans. (Ibid.) RMPUB\RHARGR�.AVI:S�265886.1 91 RESOLUTION NO. 06-28 If approved for construction, perimeter trails would generally run parallel to and not rise more than 200 feet above the toe of slope, except where necessary to avoid residential or other developed areas or topographically inaccessible terrain. (Ibid.) No perimeter trails will be constructed within 1/4 mile of wildlife water sources and, where possible, will incorporate topographic variability. (Ibid.) The public awareness and education program will enhance cooperation and participation in the self-permitting program of the Revised Trails Plan through the monitoring and management of trail use. (Final EIR/EIS, p. 5-35 through 5-36.) Wildlife managers will consistently track trail use and impacts, if any, to PBS, and require immediate action to be undertaken if specified PBS population numbers are reduced to specified thresholds. (Final EIlZ/EIS p. 5-64.) In the event a ewe group reaches 15 individuals or fewer, responsible parties shall meet and consult on whether to close, reduce use or otherwise regulate related trails. (Ibid.) in the event a ewe group reaches 5 individuals or fewer, responsible parties shall immediately close related trails, and shall meet and consult on future trail use and/or otherwise regulate related trails. (Ibid.) These actions will ensure that disturbance to PBS from recreational use, if any, will cease immediately. Trail rerouting, including the Art Smith and Mirage Trails, will be designed to protect sensitive resource values (e.g., cultural resources, wildlife Habitat, soils) where feasible. (Final EIR/EIS, pp. 5-40, and 5-63 through 5-64.) After coordination between the CVCC and federal and state wildlife agencies, redundant trails will be removed to reduce any current impacts in these areas. (Ibid.) Trails and trail segments on certain State lands will also be decommissioned and removed, thereby reducing trail use impacts in sensitive Habitat areas. (Ibid.) Rerouting and RMPUB\RHAKGREAVES�265886.1 92 RESOLUTION NO. 06-28 decommissioning of trails will occur following approval of a specific project by the appropriate project lead agency and these actions would have to meet NEPA and CEQA requirements. (Ibid.) Thus, impacts associated with deferring the rerouting, decommissioning, and removal of trails will be less than significant. (Ibid.) Dogs may disturb PBS and its habitat through intimidation, trail usage and excrement. Therefore, dogs would be allowed in designated areas only. (Final EIR/EIS, p. 5-41.) An educational kiosk at each designated dog walking area will inform dog owners about basic PBS ecology and behavior, as well as potential threats to PBS due to the presence of dogs. (Final EIR/E1S, p. 5-67.) The implementation of these mitigation measures will reduce any potential impacts to PBS from the Revised Trails Plan to below a level of significance. C. Cultural Resources (Revised Trails Plan) 1. Potential Si�ni�cant Imnacts: New trails proposed for construction under the Revised Trails Plan have the potential to affect cultural resources. (Final EIR/EIS, p. 5-76.) Several proposed trails may pass through areas with varying potential to affect cultural resources. (Final EIR/EIS, pp. 5-76 through 5-77.) 2. Findin�s: Implementation of the mitigation measures identified and incorporated in the MSHCP in conjunction with trails planning will avoid adverse impacts to sensitive cultural resources and reduce such potential impacts to below a level of significance. (Final EIR/EIS, p. 5-82.) RM PUB\RHARGREAV ES�26588G.1 93 RESOLUTION NO. 06-28 2-a Agencies shall develop a program of resource assessment for new trails tiering on Cultural Resources Management Plan ("CRMP") for SRSJ National Monument. (Final EIR/EIS, p. 5-81.) 2-b The CRMP for the Santa Rosa and San Jacinto Mountains National Monument will be tiered upon as appropriate to address the results of research conducted into the effects of recreation and public visitation on culturally significant trails, associated cultural sites, and areas identified as sensitive through Native American consultation. (Final EIR/EIS, p. 5-82.) 2-c The CVCC and agencies shall assess opportunities for and optimization of public education and resource interpretation. (Final EIR/EIS, p. 5-81.) Findin�s per State CEQA Guidelines Section 15091: (x) Changes or alternatives have been required in, or incorporated into, the Project which will avoid or substantially lessen the significant environmental effect (Subd. [a][ 1]). () Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by other such agency (Subd. [a][2]). () Specific economic, legal, social, technological or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures of Project alternatives identified in the Final EIR (Subd. [a][3]). 3. Supqortin� Exalanation: RMPUB\RI IARGREAV�,S�265886.1 94 RF.SOLUTION NO. 06-28 Rerouting trails to avoid areas identified as sensitive by Native Americans or that contain historic properties will avoid impacts and in fact have a positive effect on cultural resources. (Final EIR/EIS, p. 5-78.) Prior to making recommendations for decommissioning and removing trails in the Santa Rosa and San Jacinto Mountains Conservation Area, an inventory of all trails in the Conservation Area will occur. (Final EIR/EIS, p. 5-39.) The determination of which trails would be decommissioned or removed will be made following this inventory. (Final EIR/EIS, pp. 5-78 through 5-79.) Thus, if an action under any of the public access and use alternatives has the potential to affect historic properties, cultural resources review will be needed before the action may be implemented. (Final EIR/EIS, p. 5-76.) Literature reviews, field surveys and data recovery may be required where appropriate. (Final EIR/EIS, p. 5-75.) Public Education programs would help fully inform the public of the resource issues at risk, and would provide the public with useful information so as to maximize the effectiveness of the Revised Trails Plan. (Final EIR/EIS, p. 5-76.) The implementation of these mitigation measures will reduce potential impacts to PBS below a level of significance. D. Land Use and Planning/Recreation (Revised Trails Plan -Alternative alignments to the Palm Desert to La Quinta Connector Trail) 1. Potential Si�nificant Impacts: The development of the Revised Trails Plan has involved close coordination with local jurisdictions and state and federal agencies to assure that the Revised Trails Plan is consistent and compatible with the objectives of local, state, regional and federal agencies, and tribal land use plans, polices, and controls for the Santa Rosa and San Jacinto Mountains. (Final E1R/EIS, FtMPUB\RI IARGItEAVFS�265886.1 is RESOLUTION NO. 06-28 pp. 5-18 through 5-19.) Based upon the coordinated and integrated nature of the Revised Trails Plan, impacts to federal, state, regional, local, or tribal land use plans, policies, or controls are considered to be less than significant. (Final EIR/EIS, p. 5-18.) Nor will the Revised Trails Plan result in the physical separation of a community or conflict with any applicable habitat conservation plan or natural community conservation plan. (Ibid.) Among the trails proposed to be constructed by all alternatives is the Palm Desert to La Quinta Connector Trail. While the impacts associated with the proposed perimeter trail system and the preferred alignment for the Palm Desert to La Quinta Connector Trail are determined to be less than significant, construction will only proceed after further research on PBS/trail user interactions is completed and additional environmental review in conjunction with a lead agency's proposing to construct a trail is conducted. (Final EIR/EIS, p. 5-20.) The only potentially significant adverse impacts for land use could result from the Urban Fringe and Deep Canyon alignments of the new Palm Desert to La Quinta trail in the Revised Trails Plan. (Ibid.) The Urban Fringe alignment crosses golf course and residential Development within the Canyons at Bighorn private gated community. (Ibid.) This potentially poses significant and potential compatibility and security issues. (Ibid.) The Deep Canyon alignment would utilize substantially more University of California lands than the Proposed Trails Plan. (Ibid.) Public access to these lands is not allowed in order to provide an undisturbed setting for scientific research. (Ibid.) Impacts associated with the Deep Canyon alignment are unavoidable if that alignment is chosen. (Ibid.) Thus, these alignments are explicitly rejected as the Preferred Alternative alignment addresses and avoids these impacts. (Ibid.) 2. Findin�: RMYUD\RNARGREAVES�265886.1 96 RESOLUTION NO. 06-28 The Revised Trails Plan is consistent with the Final MSHCP and provides a consistent process and guidelines for the development of new trails and associated facilities. (Final EIR/EIS, p. 5-18.) The Revised Trails Plan does not conflict with any plans adopted for the purpose of avoiding or mitigating an environmental effect. (Ibid.) No significant impacts will result by rejecting the Urban Fringe and Deep Canyon alignments, and implementing the Preferred Alternative of the Revised Trails Plan. Further, the Revised Trails Plan has proposed mitigation, to be used in conjunction with additional CEQA and NEPA review, to further reduce any remaining potential impacts. 2-1 The CVCC and agencies shall finalize the alignments of the perimeter trails and Palm Desert to La Quinta Connector Trail, assess impacts, and facilitate the construction of approved trails. (Final EIR/EIS, p. 5-20.) Findin�s per State CEOA Guidelines Section 15091: (x) Changes or alternatives have been required in, or incorporated into, the Project which will avoid or substantially lessen the significant environmental effect (Subd. [a][1 ]). () Such changes or alterations are within the responsibility and jurisdiction of another public agency and not the agency making the finding. Such changes have been adopted by such other agency or can and should be adopted by other such agency (Subd. [a][2]). () Specific economic, legal, social, technological or other considerations, including provision of employment opportunities for highly trained workers, make infeasible the mitigation measures of Project alternatives identified in the Final EIR (Subd. [a][3]). 3. Suuportin� Exulanation: RMPUB\RHARGRGAVLS�265886.1 9% RESOLUTION NO. 06-28 Rejection of the Urban Fringe and Deep Canyon alignments will ensure that no significant impacts result from implementation of the Revised Trails Plan. The mitigation in the Revised Trails Plan will further reduce any remaining potential impacts and in fact will enhance recreational opportunities. BE IT FURTHER RESOLVED by the CVAG Executive Committee that it has considered and rejected as infeasible the alternatives identified in the EIR and described below. CEQA requires that an EIR evaluate a reasonable range of alternatives to a project, or to the location of the project, which: (1) offer substantial environmental advantages over the project proposal, and (2) may be feasibly accomplished in a successful manner within a reasonable period of time considering the economic, environmental, social and technological factors involved. (Citizens of Goleta Valley v. Board of Supervisors, (1990) 52 Ca1.3d 553, 566.) An EIR must only evaluate reasonable alternatives to a project which could feasibly attain most of the basic project objectives, and evaluate the comparative merits of the alternatives. (State CEQA Guidelines § 15126.6.) In all cases, the consideration of alternatives is to be judged against a"rule of reason." (Ibid.) The lead agency is not required to choose an alternative identified in an EIR if the alternative (1) does not substantially reduce significant environmental impacts; (2) does not meet project objectives; or (3) there are social, economic, technological or other considerations which make the alternative infeasible. (Ibid.) The primary goals and objectives of the MSHCP are to: 1. Obtain Permits from the Wildlife Agencies to authorize Take for the Covered Activities. (Final EIR/EIS, p. 1-4.) RMPUB\RHARGREAVLS�265886.1 9g RESOLUTION NO. 06-28 2. Protect Core and Other Conserved Habitat for 27 proposed Covered Species and 27 natural communities, maintain the Essential Ecological Processes to keep the Core Habitat viable and link Core Habitat to maximize the Conservation value of the land within the Coachella Valley. (Final EIR/EIS, p. 1-4.) 3. Improve the future economic development in the Plan Area by providing an efficient, streamlined regulatory process through which Development can proceed in an efficient way. The proposed Plan is intended to provide a means to standardize mitigation/compensation measures for the Covered Species so that, with respect to public and private Development actions, mitigation/compensation measures established by the Plan will concunently satisfy applicable provisions of Federal and State laws pertaining to species protection. (Final EIR/EIS, pp. 1-4 through 1-5.) 4. Provide for permanent open space, community edges and recreational opportunities, which contribute to maintaining the community character of the Coachella Valley. (Final EIR/EIS, p. 1-5.) A. The Prefened Alternative In 1994, a Scientific Advisory Committee ("SAC") was established, composed of members which included biologists from BLM, the National Park Service, United States Forest Service, the University of California Natural Reserve System, the Center for Natural Lands Management, CVWD, and representatives of CDFG and USFWS. (Final fZMPUB\Rf IARGREAVLS�265886.1 99 RESOLUTION NO. 06-28 ETR/EIS, p. 2-2.) The Plan was developed in consultation with SAC using best available science. (Final EIR/EIS, p. 2-3.) The Preferred Alternative will conserve 27 species ("Covered Species") and 27 natural communities. (Final EIR/EIS, pp. 2-4 through 2-5.) The Reserve System proposed by the Preferred Alternative contains 21 Conservation Areas totaling 724,740 acres of land, and provides Core Habitat and Other Conserved Habitat for the proposed Covered Species. (Final EIR/EIS, p. 2-8.) In addition to the Preferred Alternative, several additional alternatives were considered. These are the Preferred Alternative without Palm Springs, the Public Lands Alternative, the Core Habitat with Ecological Processes Alternative, the Enhanced Conservation Alternative and the No Action/No Project Alternative. (Final EIIt/EIS, pp. 2-49 through 2-70.) These alternatives are discussed below. One other alternative considered would have fully protected the Habitat of the Covered Species in the Plan Area. (Final EIR/EIS, p. 2-70.) Because all Habitat would have been conserved under this alternative, no Take coverage would have been required, eliminating the need for a habitat conservation plan. (Ibid.) Thus, that alternative was initially considered but eliminated from further review. (Ibid.) Based on comments received on the Draft MSHCP documents, the Prefened Alternative has been revised in the Final MSHCP. These revisions correct errors in the Draft MSHCP and reflect revisions made in response to these comments. A summary and analysis of these revisions is contained in the MSHCP Errata and Final EIR/EIS. No substantial changes were made from the draft to final plan that significantly increase or RMI'UB\RHARGREAVES�265886.1 10� RESOLUTION NO. 06-28 create new impacts not previously considered. Nor has the public been deprived of a meaningful opportunity to comment upon a substantial adverse environmental effect of the Project. Thus, recirculation of the Draft EIR/EIS was not required by CEQA for these revisions. B. Preferred Alternative without Palm Springs 1. Description This alternative is the same as the Preferred Alternative, except it assumes that the City of Palm Springs would not participate in the Plan. (Final EIR/EIS, p. 2-49.) The Conservation Areas would remain the same. (Final MSHCP, p. 3-16.) All Existing Conservation Lands, except those belonging to the City of Palm Springs, would continue to be part of the MSHCP Reserve System, as would lands within the city limits of Palm Springs committed to Conservation by other Permittees. (Ibid.) Under this alternative, lands under the jurisdiction of Palm Springs do not benefit from the Permit. (Final EIR/EIS, p. 2-51.) The Permits would not provide Take Authorization for any of the Covered Species for Development occurring within the City and the Development Mitigation Fee would not be collected in Palm Springs to assist with Plan implementation. (Ibict.) In addition, one roadway project identified by Palm Springs would not receive Take Authorization under the Plan. (Final EIR/EIS, p. 4-27.) 2. Findin� RMPUB\RHARGREAVES�265886.1 1 O 1 RESOLUTION NO. 06-28 This alternative fails to meet the purposes of basic Project objectives 1 and 3 as compared to the Preferred Alternative. 3. Supportin� Explanation The MSHCP is intended to conserve species and their Habitats while improving the future economic Development in the Plan Area. Because the Preferred Alternative without Palm Springs would retain the same Conservation Areas, it would benefit Conservation at the expense of Development. In addition, because Palm Springs would not receive Take Authorization, the city would have to independently apply for Take Authorization for each impacted project. This would hinder the future economic Development in the Plan Area because the more efficient, streamlined approach offered to Permittees under the MSHCP would not be an option for the City of Palm Springs. For the reasons stated above, the CVAG Executive Committee finds that the No Palm Springs Alternative does not meet basic Project objectives 1 and 3 to the same extent as the Preferred Alternative and is therefore rejected. C. Public Lands Alternative 1. Description RMPUB\R}IARGREAVLS�265886.1 102 RESOLUTION NO. 06-28 This alternative includes all local, State, and Federal agency land, and Private Conservation Land, in the Plan Area with Conservation management levels 1, 2, and 3. (Final EIR/EIS, p. 2-55.) Level 1 lands are lands consisting of state and federal Wilderness Areas. (Final MSHCP, pp. 2-9.) Level 2 lands contain some Existing Uses, but the overall management objective is maintenance of natural values. (Final MSHCP, p. 2-9 through 2-10.) Level 3 lands are designated for multiple use whilc providing significant Conservation value. (Final MSHCP, p. 2-10.) This alternative entails no land acquisition; only Core Habitat, Essential Ecological Processes, and Linkages that happen to be on exiting public conservation lands or Private Conservation Lands would be protected. (Final EIR/EIS, p. 2-56.) The local jurisdictions would contribute to the management of the existing Conservation Areas as mitigation for the Habitat loss allowed under the Plan. (Final EIR/EIS, p. 2-55.) In total, this alternative would result in the Conservation of 19.5% less acreage than under the Preferred Alternative. (Final EIR/EIS, p. 4-57.) 2. FindinQ This alternative fails to meet the basic Project objectives, would not substantially reduce significant environmental impacts and would result in increased impacts. 3. Sunnortin� Explanation RMPUE3\ftHARGREAVES�265886.1 103 RESOLUTION NO. 06-28 This alternative conserves far less Habitat acreage than the Preferred Alternative, and would result in Habitat fragmentation where considerable private lands exist. (Final EIR/EIS, p. 2-56 through 2-57.) The only significant reserve areas would be the three existing Coachella Valley fringe-toed lizard preserves and Dos Palmas ACEC. (Final EIR/EIS, p. 2- 56.) This lack of conservation lands would fail to provide maximum possible certainty that the viability of Core and Other Conserved Habitat for several of the 27 Covered Species and 27 natural communities would be maintained, and would potentially impact wetlands and riparian habitats. This alternative entails no land acquisition; only Core Habitat, Essential Ecological Processes, and Linkages that happen to be on existing public conservation lands or Private Conservation Lands would be protected. (Final MSHCP, pp. 3-16 through 3-17.) As a result, sand transport, watershed, and other ecological processes would not be adequately protected; Biological Corridors would not be conserved; and Core Habitat areas would be fragmented in many instances. (Ibid.) For these reasons, basic Project objective 2 would not be met. For the same reasons, it is less likely that the Wildlife Agencies would authorize a Take Permit for the Covered Species, thus frustrating basic Project objective 1. RMPUB\RHARGREAVI:S�265886.1 104 RESOLUTION NO. 06-28 Failure to achieve basic Project objective 1 would, in turn, prohibit achievement of basic Project objective 3. No Take Authorization would exist (or would be issued for fewer Covered Species), nor would this alternative achieve an efficient, streamlined regulatory process for project Development. Finally, the benefits derived from achievement of basic Project objective 4 would be far less substantial under this alternative than they would be under the Preferred Alternative. Recreational opportunities and open space preservation would be reduced, as this objective is best achieved by additional land conservation. In addition, the Public Lands Alternative could adversely affect existing and planned groundwater recharge facilities in the Plan Area. (Final EIR/EIS, p. 4-54.) This alternative could result in the need for individual permits for the development of certain projects, which will be substantially more difficult to obtain in the absence of a comprehensive conservation plan such as the Preferred Alternative. (Ibid.) These uncertainties and the biological resource conservation issues that would remain unresolved under this alternative mean that the potential for adverse impacts to existing and planned groundwater recharge facilities could be significant. (Ibid.) Therefore, the CVAG Executive Committee finds that the Public Lands Alternative does not substantially reduce environmental impacts, could RM PUB\R}IARGREA V ES�265886.1 1 OS RESOLUTION NO. 06-28 result in increased impacts as compared with the Preferred Alternative, fails to meet the basic Project objectives and therefore rejects it. D. Core Habitat with Ecological Processes Alternative 1. Description This alternative would result in the conservation of 4.2% less acreage than under the Preferred Alternative. (Final EIR/EIS, p. 4-241.) It would establish Conservation Areas intended to protect Core Habitat for the Covered Species and natural communities included in the Plan, and Essential Ecological Processes necessary to sustain these Habitats and some Biological Corridors. (Final EIR/EIS, p. 2-60.) The Conservation Areas include most of the Public Lands Alternative lands as well as the acquisition of additional private lands for Core Habitat, Essential Ecological Processes, and Biological Corridors. (Ibid.) 2. Findin� This alternative fails to meet basic Project objectives 1 and 3. In addition, this alternative fails to fully realize basic Project objective 4. 3. Supportin� Explanation Under this alternative, only 697,280 acres of Conservation Area would be conserved for Habitat, which is approximately 50,000 acres less than the Preferred Alternative. (Final EIR/EIS, pp. 2-9 and 2-63.) An additional 47,000 acres of Complementary Conservation and Additional RMPUF3\RHARGREAV[.S�265886.1 106 RESOLUTION NO. 06-28 Conservation Lands would be conserved through the Preferred Alternative. (Ibid.) In addition, unlike the Preferred Alternative, this alternative did not incorporate the Recovery Plan for PBS in the Peninsular Range. (Response to Comment I09-22.) Due to this dearth of conservation lands, there is a greater likelihood that the Wildlife Agencies would not issue a Take Permit as compared to the Prefened Alternative if the Core Habitat with Ecological Processes Alternative was adopted by the Permittees. In that instance, basic Project objective 1 would not be met. If basic Project objective 1 was not met, then basic Project objective 3 would not be met. If no Take Permit was issued (or issued for fewer species), then no streamlined regulatory process would exist to assist the processing of Development projects. This, in turn, would fail to improve the future economic Development in the Plan Area. This alternative would conserve far less permanent open space and community edges, and provide fewer recreational opportunities than the Preferred Alternative. Therefore, this alternative frustrates the purposes of basic Project objective 4. Therefore, the CVAG Executive Committee finds that the Core Habitat with Ecological Processes Alternative fails to meet basic Project objectives 1 and 3, and fails to fully realize basic Projective objective 4, and therefore rejects it. E. Enhanced Conservation Alternative RMPUB\KHARGREAVES�2G5886.1 1 O% RESOLUTION NO. 06-28 1. Descrintion This alternative would expand upon the MSHCP by adding Conservation Lands to the Plan as listed in the EIR/EIS. (Final EIR/EIS, pp. 2-65 through 2-67.} 2. Findin� The Enhanced Conservation Alternative would result in minimal additional biological value, significant land use conflicts, high acquisition and management costs, severe edge effects and the possibility of creating an unmanageable reserve configuration. (Final MSHCP, pp. 3-17 through 3-18.) This alternative fails to meet basic Project objectives 1 and 3, would not substantially reduce significant environmental impacts, would result in increased impacts, and would be infeasible. 3. Supportin� Explanation Based on field visits with the SAC and representatives from various jurisdictions, it was determined that not all areas included in this alternative were biologically viable or Feasible to conserve. (Final MSHCP, p. 3-18.) Additionally, much of the area anticipated for Conservation under this alternative would cause significant land use conflicts and increased costs without significantly increasing Habitat value. (Ibid.) Significant conflicts with local, county, State or Federal land use plans, policies or controls would result, and the alternative would physically divide established communities. (Final EIR/EIS, pp. 4-9 RMPUB\RE IARGREAV �S�265886.1 1 O8 RESOLUTION NO. 06-28 through 4-13.) Some of the proposed conservation acreage already contains approved Development, which would significantly increase the acquisition costs. (Ibid.) Existing Development adjacent to these areas would also create Habitat fragmentation and severe edge effects. (Ibid.) This alternative would also result in significant adverse impacts to transportation, and could result in significant impacts to agriculture. (Final EIIt/EIS, pp. 4-28 through 4-30, and p. 4-55.) The additional Conservation measures proposed under this Alternative would include existing groundwater recharge basins operated by CVWD, which could require realigning the recharge basins at great cost. (Final MSHCP, p. 3-18.) It would also conflict with certain adopted local or regional flood control plans or projects. (Final EIR/EIS, p. 4-55.) This Alternative would increase the number of acres to be conserved by approximately 10,200 acres over the Preferred Alternative, even though the amount of Habitat included in the Preferred Alternative is sufficient to adequately conserve all of the Covered Species. (Final MSHCP, p. 3-18.) Thus, the Enhanced Conservation Alternative would significantly increase the cost of the Project without significantly increasing the Habitat value of the Reserve. (Ibid.) This Alternative would also conflict with basic Project objectives 1 and 3. Because more land is conserved, less Take coverage would be issued by the Wildlife Agencies. This would decrease the future economic RMPUB\RHARGRI:AVGS�26588G.1 109 RESOLUTION NO. 06-28 development, which would severely reduce the amount of fees collected. Because fewer fees would be collected, it would make infeasible the ability to develop a larger reserve. Therefore, the CVAG Executive Committee finds that the Public Lands Alternative does not substantially reduce environmental impacts, results in increased impacts as compared with the Preferred Alternative, fails to meet Project objective 3, and therefore rejects it. F. No Action/No Project Alternative 1. Descrintion With the No Action/No Project Alternative, land use changes and policies that are being contemplated to implement the MSHCP would not occur. 2. FindinQ This Alternative fails to meet all four basic Project objectives, would not substantially reduce environmental impacts and would result in increased impacts. 3. Sunportin� Explanation Under this alternative, none of the objectives of the Project would be met. Under the No Project Alternative, the MSHCP would not be approved or implemented. (Final MSHCP, p. 3-18; Final EIR/EIS, p. 2-70.) Therefore, there would be no process in place to provide Take Authorization for RM!'UB\RHARGRLAVES126588G.1 1 1 O RESOLUTION NO. 06-28 Covered Species and no Core Habitat to protect. (Ihid.) Taking no action in the Plan Area would also fail to improve the future economic deveIopment in the Plan Area as no efficient, streamlined regulatory process would be in place. In addition, no permanent open space, community edges or recreational opportunities would be provided. In addition, the Project's goal to improve the future economic development of the Plan Area would not be met as no streamlined regulatory approach would be implemented. Instead, environmental impacts, especially impacts to biological resources, resulting from Development activities in the Plan Area would continue to be subject to a variety of local, state and federal regulatory processes. (Final EIR/EIS, p. 2-70.) Private parties would also be required to mitigate biological impacts on a project-by-project basis resulting in inconsistent Conservation and management. In addition, no comprehensive, long-term process would exist for protecting Core Habitat for 27 proposed Covered Species and 27 natural communities that occur within the Plan Area. (Final MSHCP, pp. 3-18 through 3-19; Final EIR/EIS, p. 2-70.) Habitat would be conserved on an ad hoc basis — if at all — rather than in functiona] blocks. (Ibid.) There would also be no fee-based funding plan that would generate funds necessary to support Conservation. RM PiJB\RHARGREAV ES�265886. l 111 RESOLUTION NO. 06-28 The No Action/No Project Alternative would also fail to substantially reduce significant environmental impacts and would result in increased impacts. Because there would not be a coordinated system of Linkages provided to connect Conservation Areas, impacts to natural communities and species that would have been covered under the MSHCP would be exacerbated under this alternative. (Final MSHCP, p. 3-19.) Edge effects would also be intensified due to the loss of Biological Corridors and Linkages, increased interaction with humans, and an increase in Development. Therefore, the CVAG Executive Committee finds that the No Action/No Project Alternative does not substantially reduce environmental impacts, results in increased impacts as compared with the Preferred Alternative, fails to meet Project objectives, and therefore rejects it. BE IT FURTHER RESOLVED by the CVAG Executive Committee that it has reviewed and considered the EIR/EIS, and all other applicable documents in the record, in evaluating the Project, that the EIR/EIS is an accurate and objective statement that complies with CEQA and reflects CVAG's independent judgment, and that the EIR/EIS and all other volumes of the MSHCP are incorporated herein by this reference. BE iT FURTHER RESOLVED by the CVAG Executive Committee that the documents and other materials that constitute the record of proceedings/administrative record for the County's approval of the Project are located at 73710 Fred Waring Drive, Suite 200, Palm Desert, California 92260, and the custodian of these records is the Executive Director of CVAG. RMPUB\Rf IARGREAVES�265886.1 1 I 2, �, RESOLUTION NO. 06-28 BE IT FURTHER RESOLVED by the CVAG Executive Committee that it hereby CERTIFIES the EIR/EIS, selects the Preferred Alternative, adopts the MSHCP, approves the IA and MMRP, and authorizes the Chairman of the Executive Committee to execute the IA. BE IT FURTHER RESOLVED by the CVAG Executive Committee that staff shall file a Notice of Determination with Riverside County Clerk of the Board of Supervisors within five (5) working days of final Project approval. : Adopted by the CVAG Executive Committee this Supervisor Marion Ashley CVAG Chair day of Attest: John M. Wohlmuth Executive Director , 2006. RMPUBUtHARGREAVI:S�265886.1 1 13 03/15/2906 16:62 7663405949 CUAG PAGE 82 cvaluating the Project, that tk�a �TRlEIS is an accurate and objective atatement that coxnp�xes with CEQA and reflects C'VA.G's independent judgxnent, and that thc ETR/EIS and all othc�c volumcs of the MS�ICP are incorporated b.erein by this referen.ce. BE IT FUR'�'�ER RESOLVED by the CVAG $xecutive Comum�ttee tb�at the doeuments and other mat�rials that consritute the record of proceedinga/administrativc rcco.rd £or thc County's approval of the Project aze located at 73710 Fred Waring prive, Suite 200, �'alm Desert, Califor�ia 922b0, and the custodian af these recoxds is the Executive Aixector o� CV,�G. BE IT �'U .R.�iER R�SOLV�D by the CVAC3 Executive Cotx�mittee that it hcrcby CERT�FIES the EIR/ETS, se�ects the Preferred ,A.lternarive, advpts the MSHCP, appzoves the IA and MMRP, and authorizes tk�e Chairman of the fixecutivc Coxnmittee to ex�cute the �A.. SE IT k'iJRTHER RESO�.VED by the CV,A�G Executivc Cvz�a��nittee that staf� shall file a Notice of Detenninarion with Riversidc County Cl�rk of the BoaYd of Supervisors within five (5) working days of final Project approval.. Ado�ted by tbe CVAG Exccutive Committee ttai.s � day of ��g�� 2006. By;1��i��; ��- Supervisor IV�ax�ion Ashley CVAG Chair 109 Recoived I�ar-15-06 Od:Olpm From-76�9d05Gd9 �� ob�u� Director To-PAL�I D�S�RT CITY CLE Paao 02