HomeMy WebLinkAboutC18280A MOU and C24411 JPA Amendment 1 CVMSHCP-NCCPREQUEST:
CITY OF PALM DESERT
DEPARTMENT OF COMMUNITY DEVELOPMENT
STAFF REPORT
Approval of Amendment No. 1 to the Joint Powers Agreement (JPA)
of the Coachella Valley Conservation Commission and Memorandum
of Understanding (MOU) concerning the Coachella Valley Multiple
Species Habitat Conservation Plan/Natural Community Conservation
Plan and the Future Conservation of the Coachella Valley Fringe
Toed Lizard.
SUBMITTED BY: Phil Drell, Director of Community Development
DATE: September 14, 2006
CONTENTS:
Recommendation
Executive Summary
CVAG Executive Committee Staff Report dated July 31, 2006
MOU Contract No. C18280A
JPA Amendment No. 1 Contract No. C24411
Staff Recommendation:
By minute motion, direct Mayor to sign JPA Amendment No. 1 and MOU.
Executive Summary:
On February 23, 2006 the Council approved CVMSHCP/NCCP and related
documents. In March the Council approved an MOU with California Department
of Fish & Game extending the Fringe -Toed Lizard HCP until June 30, 2006
when the Multiple Species Plan would take effect. These actions assumed that
the MSHCP would be approved by all the covered cities.
The failure of Desert Hot Springs to approve the Plan has prevented
implementation of the Multi Species Plan and triggered the need for the
amended JPA and MOU.
The JPA created the Coachella Valley Conservation Commission which will be
responsible for Plan implementation. Since Desert Hot Springs will not be part
of the Plan, they need to be deleted from the JPA.
Staff Report
JPA Amendment No 1 and MOU
Page 2
September 14, 2006
Since the amended Multi Species Plan without Desert Hot Springs will not be
completed for another year, the Fringe -Toed Lizard Plan MOU with the
Department of Fish and Game needs to be extended until the MSHCP is finally
approved.
Submitted by:
1
Phil Drell
Director of Community Development
Approval:
Carlos L. Orteg
City Manager
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Approval:
( Homer Croy
ACM for Development Services
CITY COUNCIL ACTION:
APPROVED ti/ DENIED
RECEIVED OTHER
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VERIFIED BY:
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Original on File with City Clerk's Office
DATE: July 31, 2006
TO: EXECUTIVE COMMITTEE
FROM: Jim Sullivan, Director of Environmental Resources
RE: Memorandum of Understanding (MOU) Concerning the Coachella Valley
Multiple Species Habitat Conservation Plan/Natural Community
Conservation Plan and the Future Conservation of the Coachella Valley
Fringe -Toed Lizard
STAFF RECOMMENDED MOTION: That the Executive Committee approve a MOU Concerning
the Coachella Valley Multiple Species Habitat Conservation Plan/Natural Community
Conservation Plan and the Future Conservation of the Coachella Valley Fringe -Toed Lizard
based on the draft MOU and comments from MSHCP participants.
BACKGROUND: The County of Riverside (County) and all the cities of the Coachella Valley
have voted to approve the Coachella Valley Multiple Species Habitat Conservation Plan
(MSHCP) with the exception of the City of Desert Hot Springs (DHS). On June 26, 2006, the
CVAG Executive Committee and the Coachella Valley Conservation Commission (CVCC)
directed staff to:
1) begin the process to revise the MSHCP, removing DHS as a Permittee, and
2) negotiate with DHS during the month of July to resolve as many of the issues of
concern DHS provided to CVAG.
DHS informed CVAG on June 29, 2006, that it would not call a special meeting to set a date
toward the end of the one month negotiation period for the purpose of considering a resolution of
DHS issues of concern. In addition, DHS accepted the CVAG Executive Committee's other
option of proceeding with a revised MSHCP, excluding DHS.
The most immediate concern arising from the failure of all Permittees to approve the MSHCP in
its current form is the existing permit for the Coachella Valley Fringe -toed Lizard habitat
Conservation Plan (CVFTL HCP). The CVFTL HCP was originally permitted in 1986. The
California Department of Fish and Game (DFG) was not a signatory to the 1986 agreement as
an analogous permit to the federal HCP did not exist in state law at that time. In late 1997, the
Service advised County staff that the FTL HCP did not correctly identify the main sand transport
corridor identifying blowsand to the system of reserves established by the CVFTL HCP. During
subsequent discussions, DFG determined that the current CVFTL HCP does not authorize take
of the lizard under the California Endangered Species Act (CESA). In 2001, DFG and the
original signatories to the CVFTL HCP entered into a Memorandum of Understanding (MOU)
which included several measures to protect the sand source areas essential to the lizard. Under
this MOU, DFG made a determination that with the aforementioned measures, the CVFTL HCP
was consistent with the California Endangered Species Act. The original MOU was intended
only as a stop gap measure while the MSHCP was completed.
The MOU was extended three times. In a letter to CVAG dated January 24, 2006, DFG stated
that it would not extend the MOU beyond June 30, 2006. Loss of the Consistency Determination
would have several ramifications:
1) California Endangered Species Act- Projects that may "take" the lizard will be required
to obtain individual permits from DFG
2) Litigation on the federal permit - The federal lizard permit is vulnerable to litigation as
the federal permit only permits "take" that is "incidental to an otherwise lawful activity".
The Center for Biological Diversity in a letter to FWS dated May 30, 2006, threatened
litigation on the CVFTL HCP.
3) California Environmental Quality Act (CEQA) - Projects in potential lizard habitat may
now be required to do full environmental impact reports because of the CEQA
"mandatory findings of significance" provision for endangered species. As the CVFTL
HCP fee mitigation area is quite large, the CEQA ramifications are potentially significant.
CVAG has been working with DFG staff to avoid loss of the Consistency Determination. In a
letter to DFG, dated June 30, 2006 CVAG executive director John Wohlmuth requested an
extension of the Consistency Determination to August 31, 2006, during which time the eight
cities, the County, Coachella Valley Water District and Imperial Irrigation District would consider
an MOU committing to a revised MSHCP without DHS. The CVAG Executive Committee would
consider the MOU at it's meeting of July 31, 2006. The individual jurisdictions would need to
consider the MOU by August 31, 2006. Through the MOU, all parties commit to revising the
MSHCP without DHS and agree to the following conditions:
A. The signatories to the MOU agree to consider a revised CVFTL HCP fee or an open
space fee based on a nexus study to be completed by CVAG. The nexus study would be
completed by September 30, 2006 and the jurisdictions would consider the fee by
October 31, 2006.
B. During the term of this MOU, the Cities and the County shall submit all development
projects proposed in the Conservation Areas to the Coachella Valley Conservation
Commission for the Interim Project Review process; and the Cities and the County shall
use best efforts not to approve development in Conservation Areas that is determined
through the Interim Project Review process to be inconsistent with the Plan Conservation
Objectives. Any project that, as of August 31, 2006, has a consistency analysis and/or an
approved Memoranda of Understanding for Like Exchange and/or Transfer of Take that
demonstrates the project is consistent with the MSHCP Conservation Objectives is
deemed to have already satisfied this condition.
If the above measures are completed DFG will extend the Consistency Determination until
August 31, 2007. During this time the Permittees must show good faith to approve a modified
MSHCP. CVAG believes that to meet the DFG time certain requirement, few changes, if any,
other than those already voted on by the Permittees, or otherwise required by law, can be made
to the documents besides removing DHS as a Permittee.
The attached draft MOU would also modify and extend the original 1996 MOU that established
the formal planning process for the MSHCP.
FISCAL ANALYSIS: No direct fiscal impact from the MOU itself, however a revised MSHCP is
estimated to cost approximately $1,252,000 to be paid from tipping fees and a $500,000 loan
from the County of Riverside. The tipping fees and the loan will be re -paid from future MSHCP
developer impact fees.
MEMORANDUM OF UNDERSTANDING
Between
COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS,
COACHELLA VALLEY CONSERVATION COMMISSION, COUNTY OF
RIVERSIDE, CITY OF CATHEDRAL CITY, CITY OF COACHELLA,
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, CALIFORNIA DEPARTMENT OF
FISH AND GAME, AND CENTER FOR NATURAL LANDS
MANAGEMENT,
Regarding
MEMORIALIZING THE AGREEMENT BETWEEN THE PARTIES CONCERNING THE
COACHELLA VALLEY MULTIPLE SPECIES HABITAT CONSERVATION
PLAN/NATURAL COMMUNITY CONSERVATION PLAN AND THE FUTURE
CONSERVATION OF THE COACHELLA VALLEY FRINGE -TOED LIZARD
.. eL34
The Cities of Cathedral City, Coachella, Indian Wells, Indio, La Quinta, Palm Desert, Palm
Springs, Rancho Mirage, all municipal corporations of the State of California ("Cities"); the
County of Riverside, a political subdivision of the State of California ("County"); the
Coachella Valley Association of Governments ("CVAG"); the Coachella Valley
Conservation Commission ("CVCC"); Coachella Valley Water District ("CVWD"); Imperial
Irrigation District ("YID"); the California Department of Fish and Game ("CDFG"), a
subdivision of the California Resources Agency; and Center for Natural Lands Management
("CNLM") collectively referred to as "the Parties", enter into this Memorandum of
Understanding ("MOU") for the purpose of establishing the obligations of each of the Parties
towards the completion of the Coachella Valley Multiple Species Habitat Conservation
Plan/Natural Community Conservation Plan ("MSHCP") and the continued conservation of
the Coachella Valley Fringe -toed Lizard ("CVFTL") in compliance with both the federal
Endangered Species Act, 16 U.S.C. § 1531 et seq., as amended ("ESA"), and the California
Endangered Species Act, Fish and Game Code §2050 et seq., as amended ("CESA") .
II. RECITALS
A. WHEREAS, the City of Desert Hot Springs ("DHS") has declined to approve
the MSHCP, but all other permittees identified in the MSHCP have approved
the MSHCP and related documents and wish to go forward with the MSHCP
by eliminating DHS as a permitee;
73106 Final
B. WHEREAS, the Parties agree that a revised MSHCP and related documents
eliminating DHS from the MSHCP is the appropriate course of action and
support this effort over the next twelve to fifteen months;
C. WHEREAS, the Cities, DHS, County, CVAG, CDFG, U.S. Fish and Wildlife
Service (FWS), and The Nature Conservancy (TNC) cooperated in the
preparation of the Coachella Valley Fringe -toed Lizard Habitat Conservation
Plan (HCP), which was implemented through an agreement signed by the
Cities, County, FWS, and TNC on April 21, 1986 ("HCP Agreement");
D. WHEREAS, FWS issued an ESA Section 10(a) incidental take permit
("Permit") to the Cities, DHS and County to authorize take of CVFTL
resulting from land development and other activities covered by the HCP;
E. WHEREAS, CDFG did not sign the HCP or authorize incidental take of
CVFTL associated with the HCP because a permitting process had not been
established under CESA at the time the HCP was developed, but CDFG
nonetheless participated in implementation of the HCP;
F. WHEREAS, the Parties entered a Memorandum of Understanding on March
21, 2001 whereby CDFG made a determination pursuant to Section 2080.1 of
the Fish and Game Code finding that the FWS permit in combination with the
mitigation provided in the Memorandum of Understanding is consistent with
CESA;
G. WHEREAS, the Parties to the Memorandum of Understanding agreed that the
CVFTL can best be protected by inclusion of the species in the MSHCP, but
desired that certain measures be implemented on an interim basis to protect
the CVFTL until the MSHCP is in place;
H. WHEREAS, that Memorandum of Understanding, as subsequently amended,
expired June 30, 2006;
I. WHEREAS, the Parties have complied with the terms and conditions of that
Memorandum of Understanding; and
J. WHEREAS, the Parties desire to maintain the Permit for the CVFTL while
the MSHCP permitting process continues.
III. THEREFORE, THE PARTIES AGREE TO THE FOLLOWING:
A. MUTUAL OBLIGATIONS OF ALL THE PARTIES:
1. The Parties agree that during the term of this MOU, CNLM, in
cooperation with the CVCC's Acquisition and Funding Coordinating
73106 Final 2
Committee, will diligently pursue acquisitions necessary to protect
CVFTL habitat, and the sand source and sand transport areas required
for the maintenance of CVFTL habitat within the Plan Area boundary.
2. The Cities, County, CVAG, CVCC, CVWD, IID FWS, and CDFG
shall diligently work to take such actions as are necessary to obtain
state and federal permits under the MSHCP to provide for
conservation of the CVFTL and other species.
B. OBLIGATIONS OF THE CITIES, COUNTY, CVAG, CVCC, CVWD, and
IID
1. During the term of this MOU, the Cities and the County shall consider
adoption of an open space mitigation fee based on a Nexus Study to be
prepared by CVAG and/or revise the existing mitigation fee for the
CVFTL based on a Nexus Study to be prepared by CVAG by
September 30, 2006. The combination of the fees is anticipated to be
between $2,000 and $3,000 per acre.
2. During the term of this MOU, the Cities and the County shall submit
all development projects proposed in the MSHCP Conservation Areas
to the CVCC for the Interim Project Review process; and the Cities
and the County shall use best efforts not to approve development in
Conservation Areas that is determined through the Interim Project
Review process to be inconsistent with the MSHCP Conservation
Objectives. Any project that, as of August 31, 2006, has a consistency
analysis and/or an approved Memorandum of Understanding for Like
Exchange and/or Transfer of Take that demonstrates the project is
consistent with the MSHCP Conservation Objectives is deemed to
have already satisfied this condition and will be included in the revised
MSHCP.
3. CVAG shall continue to be the lead agency for the MSHCP and take
all appropriate actions necessary to revise the MSHCP and related
documents to eliminate DHS from the MSHCP. CVAG will use its
best efforts to have completed this process within twelve months from
the date of execution of this MOU.
4. The Cities, the County, CVWD, and IID acknowledge that their
respective decision makers have already approved the MSHCP
approved by CVAG on February 6, 2006. The Cities, the County,
CVWD, and IID also acknowledge that in order for the MSHCP to be
revised, and the Permits to be issued, in an expeditious manner, few
changes if any can be made to the documents besides the elimination
of DHS, changes reflecting the Memoranda of Understanding with
73106 Final 3
Indio, Palm Springs and certain private parties approved by the CVCC
and others prior to August 31, 2006, and the inclusion of the policies
adopted by CVCC prior to June 30, 2006. Therefore, the Cities, the
County, CVWD, and IID agree that additional substantive changes
will not be requested for the documents besides those anticipated in
this MOU or otherwise required by law.
C. OBLIGATIONS OF FWS:
FWS agrees it will not suspend or revoke the CVFTL Permit as to the
Parties during the term of the MOU so long as they comply with the
terms of the Permit and this MOU.
D. OBLIGATIONS OF CDFG:
CDFG agrees that its consistency determination pursuant to Section
2080.1 of the Fish and Game Code regarding the FWS CVFTL Permit
as to the Parties shall remain in effect during the term of this MOU so
long as the Parties comply with the terms of the Permit and this MOU.
E. OBLIGATIONS OF CNLM:
CNLM agrees to consult with CVCC's Acquisition and Funding
Coordinating Committee regarding the setting of acquisition priorities
and the expenditure of CVFTL mitigation fees.
IV. TERM OF THE MOU
This MOU shall take effect on the date last signed and shall expire on August 31, 2007 or
upon Permit decision by FWS and CDFG of incidental take permits for the MSHCP,
whichever occurs first.
V. AMENDMENT
This MOU may be amended with the written consent of each of the Parties to the MOU.
VI. ELECTED OFFICIALS NOT TO BENEFIT
No member of or delegate to Congress shall be entitled to any share or part of this MOU, or
to any benefit that may arise from it.
VII. DUPLICATE ORIGINALS
This MOU may be executed in any number of duplicate originals. A complete original of this
MOU shall be maintained in the official records of each of the Parties.
73106 Final 4
VIII. THIRD PARTY BENEFICIARIES
Without limiting the applicability of the rights granted to the public pursuant to the
provisions of 16 U.S. C. section 1540(g) and under California law, this MOU 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 MOU to maintain a suit for personal injuries
or property damages pursuant to the provisions of this MOU. The duties, obligations, and
responsibilities of the Parties to this MOU with respect to third parties shall remain as
imposed under existing Federal or California law.
IX. RELATIONSHIP TO ESA, CESA, AND OTHER AUTHORITIES
The terms of this MOU shall be governed by and considered in accordance with ESA, CESA,
and other applicable laws. In particular, nothing in this MOU is intended to limit the
authority of FWS to seek penalties or otherwise fulfill its responsibilities under ESA, or to
limit the authority of CDFG to seek penalties or otherwise fulfill its responsibilities under
CESA. Nothing in this MOU is intended to limit or diminish the legal obligations and
responsibilities of FWS as an agency of the Federal government or of CDFG as an agency of
the State of California.
X. CONCURRENCE
The Parties agree to the terms of this MOU and will each work diligently to ensure its
successful implementation, as evidenced by signatures of their respective authorized
representatives below.
CALIFORNIA DEPARTMENT OF FISH AND GAME
Date:
Deputy Director
Habitat Conservation Division
California Department of Fish and Game
Sacramento, California
CALIFORNIA DEPARTMENT OF FISH AND GAME
Date:
Regional Manager
Eastern Sierra and Inland Deserts Region
California Department of Fish and Game
Los Alamitos, California
73106 Final
CALIFORNIA DEPARTMENT OF FISH AND GAME
Date:
General Counsel (approval as to form)
California Department of Fish and Game
Sacramento, California
COACHELLA VALLEY ASSOCIATION OF GOVERNMENTS
Date:
Chair of the Executive Committee
Coachella Valley Association of Governments
Palm Desert, California
COACHELLA VALLEY CONSERVATION COMMISSION
Date:
Chair
Coachella Valley Conservation Commission
Palm Desert, California
RIVERSIDE COUNTY BOARD OF SUPERVISORS
Date:
Chair of the Board of Supervisors
Riverside County Board of Supervisors
Riverside, California
CITY OF CATHEDRAL CITY
Date:
Mayor
City of Cathedral City
Cathedral City, California
CITY OF COACHELLA
Date:
Mayor
City of Coachella
Coachella, California
73I06 Final 6
CITY OF INDIAN WELLS
Date:
Mayor
City of Indian Wells
Indian Wells, California
CITY OF INDIO
Date:
Mayor
City of Indio
Indio, California
CITY OF LA QUINTA
Date:
Mayor
City of La Quinta
La Quinta, California
CITY OF PALM DESERT
Date:
Mayor
City of Palm Desert
Palm Desert, California
CITY 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
73106 Final 7
IMPERIAL IRRIGATION DISTRICT
Date:
Chair
Imperial Irrigation District
Imperial, California
COACHELLA VALLEY WATER DISTRICT
Date:
Board President
Coachella Valley Water District
Coachella, California
CENTER FOR NATURAL LANDS MANAGEMENT
Date:
Executive Director
Center for Natural Lands Management
Fallbrook, California
73106 Final
CVAG
COACHELLA VALLEY ASSOCIATION of GOVERNMENTS
Blythe • Cathedral City • Coachella • Desert Hot Springs • Indian Wells • Indio • La Quinta • Palm Desert • Palm Springs • Rancho Mirage
County of Riverside • Agua Caliente Band of Cahuilla Indians • Cabazon Band of Mission Indians • Torres Martinez Desert Cahuilla Indians
August 10, 2006
Mr. Carlos Ortega
City Manager
City of Palm Desert
73-510 Fred Waring Dr.
Palm Desert, CA. 92260
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Enclosed please find Amendment Number One to the Joint Powers Agreement of the Coachella
Valley Conservation Commission. This amendment to the Joint Powers Agreement (JPA)
changes the list of the signatories removing the City of Desert Hot Springs. The City of Desert
Hot Springs voted not to participate in the Coachella Valley Multiple Species Habitat
Conservation Plan (CVMSHCP) on June 20, 2006. On June 26, 2006 the Executive Committee
directed CVAG staff to begin the process to revise the CVMSHCP without the City of Desert
Hot Springs. The amendment was passed by the Executive Committee on July 31, 2006 and by
the Coachella Valley Conservation Commission on July 13, 2006.
Please place this on your next agenda for approval. I have enclosed one complete agreement and
14 signature pages. Please have the Mayor sign all the documents and return them to me. When
complete I will send you an executed original for your records. If you have any questions
regarding this agreement, please call me at (760) 346-1127.
Sincerely,
COACHELLA VALLEY
ASSOCIATION OF GOVERNMENTS
MARY M. GODFREY
Administrative Services Assistant
cc: Jim Sullivan, Dir. of Environmental Resources
73-710 Fred Waring Drive, Suite 200 • Palm Desert, CA 92260 • [760) 346-1127 • FAX [760) 340-5949
AMENDMENT NO. 1
TO THE JOINT POWERS AGREEMENT
OF THE COACHELLA VALLEY CONSERVATION COMMISSION
WHEREAS the Joint Powers Agreement of the Coachella Valley Conservation
Commission (CVCC) was entered into on or about December 2005, and
WHEREAS, the County of Riverside, Coachella Valley Water District, Imperial
Irrigation District, and the Cities of the Coachella Valley, except for the City of Desert Hot
Springs ("DHS"), have approved the Coachella Valley Multiple Species Habitat
Conservation Plan (MSHCP) and related documents and wish to go forward with the
multiple species habitat conservation plan; and
WHEREAS, the Parties agree that a revised MSHCP and related documents
eliminating DHS from the MSHCP is the appropriate path and support this effort over the
next twelve months.
NOW, THEREFORE, the Joint Powers Agreement of the Coachella Valley
Conservation Commission is amended as follows:
"The signatories may include any of the following public agencies:
a) City of Cathedral City,
b) City of Coachella,
c) City of Indian Wells,
d) City of Indio,
e) City of La Quinta,
f) City of Palm Desert,
g) City of Palm Springs,
h) City of Rancho Mirage,
i) County of Riverside,
j) Coachella Valley Water District, and
k) Imperial Irrigation District."
CVCC Amendment No. 1 1
The governing legislative body of each Member has each authorized execution of this
Amendment, as evidenced by the authorized signatures below.
CITY OF CATHEDRAL CITY
DATE
Mayor Kathy De Rosa
City of Cathedral City
CITY OF COACHELLA
DATE
Mayor Jesse Villarreal
City of Coachella
CITY OF INDIAN WELLS
DATE
Mayor Ed Monarch
City of Indian Wells
CITY OF INDIO
DATE
Mayor Gene Gilbert
City of Indio
CVCC Amendment No. 1 2