GENERAL PUBLIC INTEREST

DEPARTMENT OF FISH AND WILDLIFE

CALIFORNIA ENDANGERED SPECIES ACT CONSISTENCY DETERMINATION NO. 2080-2013-001-06

Background

Mary Borba Parente and Standard Pacific Homes (Applicants) propose to construct the Vila Borba Planned Community Project (Project) located on 337.55 acres in the city of Chino Hills, San Bernardino County. The Project consists of 110 acres of residential development and 5 acres of commercial development. The Project will discharge fill associated with construction into 2.49 acres of Chino Creek and a portion of the Prado Flood Control Basin. The Project will consist of grading for dwellings; construction of three vegetated water quality basins, building pads, and residential streets; landscaping; and drainage improvements. The Project will include approximately 180.55 acres proposed for open space and conservation. The property contains a 42-acre Southern California Edison (SCE) easement.

The Project activities described above are expected to incidentally take¹ least Bell's vireo (Vireo bellii pusillus) (vireo) where those activities take place within or adjacent to riparian habitat. In particular, vireo could be incidentally taken due to direct loss of riparian habitat used by vireo for breeding, roosting, foraging, and dispersal; and as a result of an increase in noise, vibration, and human presence associated with construction-related activities. Vireo is designated as an endangered species pursuant to the federal Endangered Species Act (ESA) (16 U.S.C. § 1531 et seq.) and the California Endangered Species Act (CESA) (Fish & G. Code, § 2050 et seq.). (See Cal. Code Regs., tit. 14, § 670.5, subd. (a)(5)(I).)

Vireo individuals are documented as present at the Project site and there is suitable vireo habitat within the Project site. Protocol vireo surveys were conducted on the Project site between 1999 and 2012. The total number of individuals detected has ranged from 5 to 10 individuals. At least one breeding pair of vireo was detected in 2007, 2010, and 2011, and young were detected during 1999, 2007, and 2010 surveys. A total of five vireo were detected during 2012 surveys. Because individual and breeding pairs of vireo have been documented within the Project site and suitable vireo habitat exists within the Project site, the United States Fish & Wildlife Service (Service) determined that vireo is reasonably certain to occur within the Project site and that Project activities are expected to result in the incidental take of vireo.

According to the Service, the Project will result in the permanent loss of 2.49 acres of riparian habitat used by vireo for breeding, roosting, foraging, and dispersal. Because the Project is expected to result in take of a species designated as endangered under the federal ESA, the U.S. Army Corps of Engineers (Corps) consulted with the Service as required by the ESA. On March 5, 2001, the Service issued a biological opinion (Service Ref. No. 1-6-01-F-752.1) (BO) to the Corps for the proposed Project. The BO described the Project, required the Applicants to comply with terms of the BO and its incidental take statement (ITS), and set forth measures to minimize impacts to vireo. The BO also required the Applicants to implement and adhere to measures contained within the Draft Conceptual Habitat Mitigation and Monitoring Plan, dated November 20, 2000.

On August 3, 2001, the Service issued an amendment authorizing changes to the Project description and identifying increased habitat replacement amounts negotiated after the issuance of the BO.

On August 23, 2001, the Director of the California Department of Fish and Wildlife (CDFW) received a notification from the Applicants requesting a determination pursuant to Fish and Game Code section 2080.1 that the BO, as amended (Amended BO), and its related ITS were consistent with CESA for purposes of the Project and vireo. On September 28, 2001, CDFW determined that the BO, as amended, and its related ITS were consistent with CESA (Cal. Reg. Notice Register 2001, No. 25-Z, p. 1002) (CDFW Ref. No. 2080-2001-037-06).

On December 18, 2012, the Service issued an amendment (Service Ref. No. FWS-SB-12BO145-12F0333) (2012 BO) authorizing changes in the BO to the Project description, conservation measures, amount of take, and to address occupation of the Project site by the federally threatened coastal California gnatcatcher (Polioptila californica californica).

Subsequently, on January 7, 2013, the Director of CDFW received a notice from VCS Environmental, on, behalf of the Applicants, requesting a determination pursuant to Fish and Game Code section 2080.1 that the 2012 BO and its related ITS are consistent with CESA for purposes of the Project and vireo. (Cal. Reg. Notice Register 2013, No. 3-Z, p. 94.)

Determination

CDFW has determined that the 2012 BO and its related ITS are consistent with CESA as to the Project and the anticipated incidental take of vireo because the mitigation measures contained in the 2012 BO and its related ITS meet the conditions set forth in Fish and Game Code section 2081, subdivisions (b) and (c), for authorizing incidental take of CESA-listed species. This determination supersedes and replaces the prior determination (CDFW Ref. No. 2080-2001-037-06) issued by CDFW on September 28, 2001. Specifically, CDFW finds that: (1) take of vireo will be incidental to an otherwise lawful activity; (2) the mitigation measures identified in the Amended BO and its related ITS will minimize and fully mitigate the impacts of the authorized take; (3) adequate funding is ensured to implement the required avoidance minimization and mitigation measures and to monitor compliance with, and effectiveness of those measures; and (4) the Project will not jeopardize the continued existence of vireo. The mitigation measures in the Amended BO and its related ITS include, but are not limited to, the following:

Avoidance, Minimization, and Mitigation Measures

• Applicants will obtain, and conserve in perpetuity through conservation easements, 8.51 acres located in three onsite vegetated water quality basins to function as replacement wetlands and stormwater runoff water quality treatment. Maintenance activities within the water quality basins will be limited to cleaning of the inlet and outlet structures.

• Applicants will create, and protect in perpetuity through conservation easements, 22.96 acres of onsite habitat consisting of 9.56 acres of Riversidean sage scrub (RSS) habitat, and 4.89 acres of RSS/coast live oak habitat within the development footprint. The onsite habitats will be maintained by the Home Owners Association (HOA).

• Applicants will restore, conserve, and manage 9.57 acres of offsite streambed and riparian habitat within or adjacent to the city of Chino Hills. The offsite restoration and conservation area will be identified and submitted to the Service and CDFW for review and approval no less than 180 days prior to initiation of project activities, and the conservation area will be secured prior to the initiation of project activities.

• Applicants will conserve in perpetuity, through transfer of fee title to a suitable non-profit entity or public agency approved by the Service and CDFW, 100.21 acres of unaltered natural open space outside of the development footprint. The conservation easement grantee will be responsible for long-term management, monitoring, and maintenance activities associated with the 100.21-acre open space conservation area, including: (1) coordination with a grazing entity for annual grazing for invasive species management; (2) inspection of habitat signage; (3) coordination with the HOA; (4) annual monitoring; and (5) correspondence updates to the HOA and file. Applicants will be responsible for funding these activities, as set forth within the Financial Assurances section below.

• Applicants will avoid clearing and grading associated with the Project during the period from February 15 to September 15. If Project construction cannot be avoided during this period, a qualified biologist will survey potential nesting habitat within the Project site and adjacent 200-foot buffer area prior to any construction-related activities. The biologist will conduct surveys once a day for 5 days during the appropriate times of day during the breeding season. If nesting activity is detected, the nest site will be flagged and fenced with a minimum buffer of 200 feet (500 feet for endangered, threatened, and candidate species and all raptors). Applicants will not disturb the nest and buffer area until after September 15 and/or the nest is no longer active, as determined by the qualified biologist.

• Applicants will ensure a qualified biological monitor will be onsite to monitor all construction activities adjacent to vireo habitat, nesting bird buffer areas, and conservation areas. The biological monitor will ensure that construction activities do not extend beyond the flagged and/or fenced areas and that Applicants follow construction-related avoidance and minimization measures. The biological monitor will have the authority to temporarily halt activities that are disturbing listed species and to implement avoidance measures as determined through coordination with the Service and CDFW. The biological monitor will immediately notify the Service and CDFW if listed species are identified. The biological monitor will confirm compliance through assessment of the work area and submittal of a letter-format report to the Corps, Service, and CDFW for review and approval prior to the initiation of work and at the completion of work for each construction phase (tentative tract).

• Applicants will limit construction activities to hours after local sunrise and before local sunset. Applicants will not use artificial lighting during construction.

• Applicants will shield public lighting installed in conjunction with the development, and in proximity to conserved habitat, to direct light away from the conserved habitat to reduce the potential for indirect impacts to conserved habitat.

• Applicants will erect fences, walls, or vegetated barriers to control human and pet access into the conserved areas where residential and community development abuts conserved areas. Applicants will submit a description of the fence design to the Service and CDFW for approval prior to construction. The HOA will maintain fences, walls, and/or vegetative barriers.

• Applicants will post signs, maintained by the HOA, at potential access points into the onsite conserved areas to inform residents of the conservation values of the open space/conservation areas and minimize intrusions following the completion of construction.

• Applicants will develop an education program to advise future residents living in proximity to conserved areas. Applicants will prepare a wildlands interface brochure addressing ways to minimize impacts of human and domestic pets on listed species and native communities, provide a copy of the California Invasive Plant Council list of invasive plants for southern California, and provide a map of the conservation areas listing prohibited activities. Applicants will provide all education materials to homebuyers through their home purchase contracts. Applicants will submit the wildlands brochure and other education materials to the Service and CDFW for approval prior to the start of ground disturbing activities.

• Applicants will comply with the Final Habitat Mitigation and Monitoring Plan (HMMP), dated November 3, 2003, which requires the planting of over 150 coast live oaks and western sycamores and over 950 willows. Specification of planting locations, site preparation, planting methods, maintenance, monitoring, and reporting will be contained in the tree permit to be issued by the City of Chino Hills.

Monitoring and Reporting Measures

• Applicants will prepare and submit a Long Term Management Plan for all onsite and offsite mitigation lands to the Service and CDFW for review and approval prior to project initiation. Activities described in the Long Term Management Plan will include, but are not limited to: invasive weed control; trash removal; control of unauthorized human access; maintenance of gates, fencing, and signs around the conservation areas; and removal of domestic animals.

• Applicants will implement a 5 year monitoring and reporting program as outlined in the HHMP for the 22.96 acres of onsite created mitigation areas including the water quality basins, RSS, and RSS and coast live oak habitats. As discussed in the HMMP, maintenance of the mitigation sites will include, but is not limited to, invasive weed control, irrigation maintenance, plant replacement, and erosion control. Applicants will submit annual reports to the Service and CDFW no later than December 31.

• Applicants will prepare a supplement to the HMMP to address changes in project conditions and to update project impacts and conservation measures. The HMMP supplement will also include the budget for plant installation, 5-year monitoring, reporting, maintenance, and perpetual management of the conservation areas. The supplement to the HMMP will not replace, but will be an addition to, the November 3, 2003, HMMP. Applicants will submit the supplement to the Corps, Service, and CDFW no later than 30 days prior to ground disturbing activities.

• Applicants will ensure a qualified project biologist will monitor implementation of the HMMP and its supplement. The Applicants will report any minor modification to the implementation of the HMMP and its supplement, as authorized by the project biologist, to the Corps, Service, and CDFW.

• Applicants will conduct annual protocol breeding season surveys to determine the presence or absence of vireo within identified occupied and potential habitat in the development areas prior to the issuance of clearing and grading permits.

Financial Assurances

• Applicants will provide a letter of credit for all onsite creation, conservation, and management activities, as identified in CDFW's Lake and Streambed Alteration Agreement No. 1600-2011-0234-R6, Revision 3, Conditions 5.1-5.4.

• Applicants will establish a management endowment fund to provide the long-term costs of monitoring, maintenance, management, and protection of the onsite habitat creation conservation areas (water quality basins, RSS, and RSS/coast live oak habitat totaling 22.96 acres) and the offsite riparian conservation areas (9.57-acre riparian area). Applicants will provide the Service and CDFW with proof of payment to the management endowment fund no later than 60 days prior to the initiation of construction activities.

• Applicants will establish a management fund for the long-term management, monitoring, and maintenance activities to be completed by the grantee for the100.21-acre open space conservation easement area. Long-term management, monitoring, and maintenance activities to be completed by the 100.21-acre open space conservation easement grantee are defined in the Avoidance, Minimization, and Mitigation Measures section above. The long-term management fund may consist of an interest-bearing account with the amount of capital necessary to generate sufficient funds to implement those activities, in perpetuity.

• The HOA will fund, in perpetuity, ongoing grazing and invasive species removal and treatment, trash and debris removal, and fencing/barrier and signage replacement and repair within the 100.21-acre open space. Applicants will be responsible for funding these activities until the HOA assumes full responsibility. Applicants will provide terms and conditions of the management fund payment arrangements for these activities to the Service and CDFW for review and approval prior to ground disturbance. Applicants will provide proof of payment to the management endowment fund or of the negotiated management payment agreement to the Service and CDFW no later than 90 days prior to the initiation of construction activities.

Pursuant to Fish and Game Code section 2080.1, take authorization under CESA is not required for the Project for incidental take of vireo, provided the Applicants implement the Project as described in the Amended BO, including adherence to all measures contained therein, and comply with the mitigation measures and other conditions described in the Amended BO and its related ITS. If there are any substantive changes to the Project, including changes to the mitigation measures, or if the Service further amends or replaces the 2012 BO or its related ITS, the Applicants shall be required to obtain a new consistency determination or a CESA incidental take permit for the Project from CDFW (See generally Fish & G. Code, §§ 2080.1, 2081, subds. (b) and (c)). This determination replaces CDFW's prior determination (CDFW Ref. No. 2080-2001-037-06) issued by CDFW on September 28, 2001.

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¹ Pursuant to Fish and Game Code section 86, "'Take' means hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill." See also Environmental Protection Information Center v. California Department of Forestry and Fire Protection (2008) 44 CAL.4^th 459, 507 (for purposes of incidental take permitting under Fish and Game Code section 2081, subdivision (b), "'take'… means to catch, capture or kill").