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HomeMy WebLinkAbout10/22/04 B A K E R S F I E L D CITY,MANAGER'S OFFICE MEMORANDUM October 22, 2004 TO: Honorable Mayor and City Council Tandy, City Manager FROM: Alan SUBJECT: General Information 1. The City has submitted its comments to the US Fish & Wildlife Service on the proposed critical habitat designation of the "2800 Acres" for the Buena Vista Lake shrew. We present evidence that the "2800 Acres" should be excluded from designation, because most of the land is not suitable habitat for the shrew due to lack of suitable vegetation and shortage of water supply. We also have a Habitat Conservation Plan that covers the property for all plant and animal species. The City carefully manages'the property as an open space resource facility that is kept in its natural state as much as possible. It needs no more oversight from the federal government. We also present facts that there are other lands offering far better habitat and conservation benefits for the shrew. A Management Plan is being finalized to present to the USF&WS. The required Economic Impact Report from the USF&W has not been published; the City will be commenting on it at a later date. The final designation of the habitat lands is scheduled for January 2005. 2. A calendar with proposed dates for the Council meetings in 2005 is enclosed for your review. Please contact City Clerk Pam McCarthy as soon as possible if you have any concerns about the proposed schedule. We will be placing the item on the Consent Calendar at the November 3rd meeting for your approval. 3. The community tribute for our four local Olympians takes place this Sunday, October 24th, at McMurtrey Aquatic Center. The event will begin at 2:00 p.m. 4. The activity report from Recreation and Parks for September is enclosed for your review. 5. Responses to Council requests are enclosed, as follows: Councilmember Salva.q.qio · Report on the issuance of parking tickets in the vicinity of the auto mall; · Code enforcement actions at 1700 Custer Avenue related to sign removal. AT:m cc: Department Heads Pam McCarthy, City Clerk Trudy Slater, Administrative Analyst LAW OFFICES 'NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP WALTER L. NOSSAMAN Suite 1800 John T. KnoX WARREN G. ELLIOTT (1886-1964) 18101 Von Karman Avenue OF COUNSEL william e. 9uthner, jr. P.O. Box 19772 (1932-1999) Irvine, CALIFORNIA 92623-9772 telephone (949) 833-7800 SAN FRANCISCO FACSIMILE (949) 833-7878 WASHINGTON. D.C. Thirty-Fourth Floor SUITE 370-S 50 California Street 601 13~ Street N.W. San Francisco. CA 94111-4799 WASHINGTON, D.C. 20005 (415) 398-3600 (202) 763-7272 Los An(]eles SA(~RAMENTO Thirty-First Floor SUITE 1000 445 South Figueroa Street 915 L Street Los Ange[es, CA 90071-1602 Sacramento, CA 95814-3701 (213) 612-7800 (916) 442-8888 REFER TO FILE NUMBER 000020-0013 October 18, 2004 VIA electronic AND overnight mail Wayne White - Field Supervisor U.S. Fish and Wildlife Service Sacramento Fish and Wildlife Office 2800 Cottage Way, W-2605 Sacramento, California 95825 Re: Proposed Rule to Designate Critical Habitat for the Buena Vista Lake Shrew (69 Fed. Reg. 51417 (Aug. 19, 2004)). Dear Mr. White: This letter provides the comments of the City of Bakersfield ("City") with regard to the above-captioned Proposed Rule to Designate Critical Habitat for the Buena Vista Lake Shrew (the "Proposed Rule"). 1. INTRODUCTION AND SUMMARY The City owns the Kern Fan Water Recharge Area, virtually all of which is Proposed as critical habitat Unit 3 in the Proposed Rule ("Kern Fan"). Of the 2760 acres of the Kern Fan property, 2,687 acres are included in Unit 3. Since 1977 the City has operated the "2800 Acres" as an open space resource management area to provide flood control, natural lands and wildlife habitat conservation, limited access public uses, water conservation and mineral production. The site is comprised of 1,470 acres of spreading basins, 760 acres of primary floodplains and the remainder is variety of mixed-use facilities such as oil wells, the Kern River Canal, a railroad and levees and top rgads. The City has left the interior of the basins in their natural vegetative state and does not disturb the lands outside the flood channel of the Kern River. The Metropolitan Bakersfield Habitat Conservation Plan covers all lands outside the primary floodway. 245550 1.DOC NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 2 The Kern Fan has captured and stored over 1,300,000 acre-feet of high quality water since 1978. Without the project, most of this water would have either flooded adjacent and downstream properties or have flowed out of the area and been lost. The spreading and storing operation involves the use of 13 earthen levee basins, that cover 1,470 acres of the property, when at maximum capacity. Groundwater is the primary source of water supply for the urban Bakersfield area. The general groundwater quality decline has been slowed due to the large amounts of water spread and conserved. The availability of water varies, as the Kern River is one of the most wildly fluctuating rivers in California. Records show that large-scale spreading on the property is likely to occur only about once every four to five years. Dry years on the Kern River watershed are more "normal" and historically there have been stretches of up to 7 years of dry conditions on the Kern River. The City is concerned that the Proposed Rule should be more narrowly drawn to properly define areas of critical habitat for the Buena Vista Lake Shrew ("Shrew"). The Kern Fan should be excluded from critical habitat in the same manner as adjacent properties covered by a habitat conservation plan, because: (1) the City's existing management plan provides conservation benefits for the Shrew, (2) the Kern Fan, outside the primary flood zone of the Kern River, is coveredby the Metropolitan Bakersfield Habitat Conservation Plan, and (3) the City is in the process of preparing a detailed management plan for the shrew. Even if the entire Kern Fan is not excluded, the extent of proposed critical habitat is much greater than the portion of the Kern Fan which may provide necessary feature's for the Shrew, and the Proposed Rule should be revised to reflect a more accurate understanding of the available habitat. The City requests that the Service revise the Proposed Rule and recirculate it for additional public review and comment, taking into account the following issues: '(1) The Service has properly proposed to exclude from critical habitat those areas contained within the boundaries of a habitat conservation plan. The Service should also exclude from the designation of critical habitat those areas within the planning area which are subject to a management regime that supports the Shrew. (2) The Kern Fan is permanent open space, and is used primarily for water recharge. The management plan is beneficial to the Shrew, since it conserves natural lands, and provides a water source to maintain the riparian habitat communities used by the Shrew. The City is preparing a detailed Kern Fan Buena Vista Lake Shrew Management Plan ("Management Plan"), which sets forth the water management regime at the Kern Fan with respect to the Shrew. The City expects to submit the Management Plan to the Service before the ciose of comments on economic impacts of the proposed designation. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 3 (3) The Endangered Species Act of 1973, as amended, (16 U.S.C. §§ 1531, et seq.) ("ESA") and its legislative history are clear: critical habitat is to be defined only under very narrow circumstances. Congress did not intend the Service to indiscriminately designate large areas that might support the Shrew or that areas that might allow for Shrew expansion. The ESA requires designation of specific areas of habitat that are truly essential to the survival of the Shrew. The Proposed Rule fails to narrowly define the areas that have the primary constituent elements ("PCE") necessary for the species. (4) The ESA requires the Service to use the "best scientific and commercial data available" in designating critical habitat. Yet, the Proposed Rule violates this mandate by proposing 4,649 acres of land without adequate scientific data regarding the actual presence of the Shrew in the proposed habitat units, or whether the habitat proposed actually meets the limited standards set forth in the ESA. In particular, the Proposed Rule overstates the extent of potential critical habitat in the Kern Fan unit. Although the Proposed Rule includes 2682 acres of the 2800 acre Kern Fan property, the Shrew has been found on only two sites of less than one acre each, and no more than 1344 acres are actually likely to provide the PCEs identified by the Service. (5) The Proposed Rule is not accompanied by an economic impact analysis, as required by law. Congress intended that the Service consider economic and other impacts concurrent with the formulation of critical habitat proposals. The Service must quantify these impacts and consider the cumulative impacts of the Proposed Rule and the effects of the many other pending and anticipated critical habitat designations in California in order to be consistent with ESA. (6) The Service has concluded that it need not prepare an environmental assessment or and environmental impact statement for its Proposed Rule. This failure violates the National Environmental Policy Act (42 U.S.C. §§ 4321 et seq.) ("NEPA"). The Tenth Circuit Court of Appeals held that, before the Service can designate critical habitat for an endangered or threatened species pursuant to the ESA, the Service must first prepare an environmental impact statement or an environmental assessment. 2. THE PROPOSED RULE PROPERLY EXCLUDES AREAS GOVERNED BY EXISTING ItCPS, AND SHOULD ALSO EXCLUDE AREAS GOVERNED BY MANAGEMENT PLANS WHICH PROVIDE CONSERVATION BENEFITS TO THE SHREW. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 4 A. The Benefits of Habitat Conservation Plans and Similar Management Plans Outweigh the Benefits of Critical Habitat Designation. The ESA authorizes exclusion of areas from critical habitat if"the benefits of specifying such exclusion outweigh the benefits of specifying such areas as part of the critical ' habitat." 16 U.S.C. § 1533(b)(2). The only limitation on such exclusions is in the event an exclusion will result in the extinction of the species. The Service has appropriately made an initial decision to consider the benefits and effectiveness of inclusion in approved habitat conservation plans ("HCPs"), and to exclude such areas from critical habitat. The Service should exclude from critical habitat not only those areas governed by existing HCPs, but also those areas within pending habitat plans and those subject to management plans that provide similar protections to the Shrew. One of the reasons for critical habitat is the need for special management considerations. However, critical habitat designation alone does not provide any management structure or management measures. While some management measures can be developed in the course of section 7 consultation for some parts of the designated habitat, management cannot be planned for large areas under the piecemeal section 7 approach, and cannot be applied when no Section 7 consultation is necessary. As a result, an existing or proposed management regime which provides benefits for the species is likely to be more effective than the more limited special management considerations that can be provided as a result of critical habitat designation. In previous critical habitat determinations, the Service has exercised its discretion under 4(b)(2) to exclude from critical habitat proposed HCP permit areas. See, e.g., 68 Fed. Reg. 46684, 46747 [excluding draft Western Riverside Multiple Species Habitat Conservation Plan area from critical habitat for vernal pool species]; Final Rule Designating Critical Habitat for Santa Ana Sucker, 69 Fed. Reg. 8839, 8846 [excluding draft Western Riverside Multiple Species Habitat Conservation Plan area from critical habitat for Santa Ana sucker]. The Service has properly justified its determination to exclude from critical habitat proposed HCP areas on the basis of enhancing the spirit of cooperation and partnership with HCP participants and encouraging others to work cooperatively with the Service to develop HCPs. 68 Fed. Reg. 46684, 46748; 69 Fed. Reg. 8839, 8847. The Service should extend this rationale to exclude other proposed HCP/NCCP areas, and those areas where the land owner or manager operates under a management plan that also provides conservation benefits to the species: These are situations where the Service has an ongoing working relationship with the landowner. The Service should respect this continued working relationship. See Center for Biological Diversity v. Norton, 240 F.Supp.2d 1090 (D. Ariz. 2002) [upholding Service's determination that preserving conservation relationships is "relevant impact" under 4(b)(2) justifying exclusion of certain land from critical habitat]. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 5 B. Proposed Unit 3, The Kern Fan, Should be Excluded from Critical Habitat Since it is Subject to Adequate Management for the Shrew. The Proposed Rule notes that areas subject to adequate management do not require new special management, and therefore are not critical habitat. 69 Fed Reg. 51426. The Proposed Rule further acknowledges that the Kern Fan area can be excluded if the City can provide assurances that conservation measures for the Shrew will be implemented and effective. 69 Fed. Reg. 51427. The City believes that its existing management regime for the Kern Fan provides the benefits of an adequate management plan, and obviates the need for special management measures for the Shrew on the Kern Fan site. The Kern Fan is owned by the City, and protected from development or encroachment. The City has designated in its General Plan the "2800 Acres" as Open Space (OS): Floodplains and Resource Management Area. The Kern Fan is a limited access facility. The property is security fenced with locked gates and warning signs posted at all potential points of entry. The property is regularly patrolled by City water operations personnel and a separate security patrol guards the facility. Community and educational organizations are allowed limited access for educational field trips. The only regular public access is via a bicycle path that runs the length of the property along the south side of the flood channel. Signs advise bicyclists that due to the natural conditions and mammal and reptile wildlife to please stay on the path. Cattle and sheep grazing was halted after City acquisition of the land. By City ordinances, activities such as trespassing, hunting, discharge of firearms (including airguns) and firewood cutting are prohibited. Off-road vehicles are banned. Citations are issued to violators of the ordinances. Written permission to enter the property for any use is required. . . The site is largely maintained as natural open space. Beginning with the pre- acquisition environment impact report (1975) through the Metropolitan Bakersfield Habitat Conservation Plan, the City has pledged to and operates within the "2800 Acres" to preserve the natural lands and wildlife habitats. The 760 acres of primary floodway has been left in its natural state. The 1,470 acres of groundwater recharge basins are operated with the land and vegetation undisturbed within the basins. No projects or maintenance function is performed off the levees or the flood channel until the proper biological canvassing is performed. Simply maintaining the Kern Fan as natural open space and protecting it from development provides a substantial conservation benefit to the Shrew. Moreover, the operation of the site for water conservation provides the most beneficial conditions for the Shrew, since it increases the area of riparian vegetation beyond the area otherwise provided by the Kern River channel. As a result, the existing management meets the standards for adequate management set NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 6 out in the Proposed Rule. While the existing management regime provides conservation benefits for the Shrew, the City may be able to tailor operations to provide increased benefits. The City is preparing a Management Plan which focuses on measures specific to the Shrew. The Management Plan will provide clear objectives which meet the City's obligations of flood control, water storage and maintaining the natural values of the area. In addition, objectives specific to maintaining or enhancing areas suitable for the Shrew will be articulated. These objectives will utilize the fine-grain mapping effort described in Section 3.C., below, to focus management and enhancement efforts to benefit the Shrew. The Management Plan will provide for annual monitoring which will allow the City to modify, to the extent practicable, the order in which water is spread to most effectively support Shrew habitat. Annual monitoring reports will be submitted to the Service. The City expects to submit the Management Plan' to the Service prior to the close of comments on economic impacts of the proposed designation of critical habitat for the Shrew. Based on the existing management plan for the Kern Fan, and on the Management Plan which the City is currently developing, the City requests that the Kern Fan be excluded from designated critical habitat for the Shrew. 3. BOTH THE LANGUAGE AND THE LEGISLATIVE HISTORY OF ESA ARE CLEAR: CRITICAL HABITAT IS TO BE NARROWLY DEFINED. THE PROPOSED RULE VIOLATES THIS DIRECTIVE. Section 4(b)(2) provides the Service "shall designate critical habitat.., on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." 16 U.S.C. § 1533(b)(2). As the United States Supreme Court observed, the requirements of section 4 are "plainly those of obligation rather than discretion ... It is rudimentary administrative law that discretion as to the substance of the ultimate decision does not confer discretion to ignore the required procedures of decision making." Bennett v. Spear 520 U.S. 154, 172 (1997). A. ESA Expressly Limits Critical Habitat Only to Those Areas Essential to Species Conservation. The ESA provides for only two very narrowly defined areas where critical habitat can be designated. They are: (1) those specific areas "within the geographical area occupied by the species at the time it is listed" that contain features essential to the conservation of the species and which may require special management consideration or NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 7 protection; and (2) those areas outside the geographical area occupied by the species upon a determination of the Secretary that such areas are essential for conservation of the species. 16 U.S.C. § 1532 (5) (A), emphasis added. "Conservation" is defined by ESA as those methods and procedures "necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to [ESA] are no longer necessary." 16 U.S.C. § 1532 (3), emphasis added. In other words, only those areas necessary to bring the species to a point where it is no longer in danger of extinction may be included within critical habitat boundaries. Critical habitat does not mean those areas that "could" contain elements essential to conservation. It also does not mean those areas that "may" become occupied by the species in the future. In defining critical habitat along these two narrow lines, Congress intended to narrowly circumscribe the designation of critical habitat. This intent is underscored by section 3 (B), which states that, absent a specific determination by the Secretary, "critical habitat shall not include the entire geographical area which can be occupied by the threatened or endangered species." 16 U.S.C. § 1532 (5) (C). Section 4(b)(2) of the ESA also indicates Congressional intent to limit the designation of critical habitat to narrow areas. It requires the evaluation of the economic and other impacts of critical habitat designations and authorizes the Service to exclude areas from the designation provided the exclusion will not result in extinction. 16 U.S.C. § 1533 (b)(2). This interpretation of the ESA is supported by the legislative history of the 1978 amendments. B. The Legislative History of ESA and Its Amendments Repeatedly Expresses an Explicit Congressional Intent to Narrowly Define Critical Habitat. In drafting ESA's critical habitat provisions in 1978, Congress made clear its intent to define critical habitat in an "extremely narrow" manner. 124 Cong. Rec. 13579 (daily ed., Oct. 14, 1978). During the House debate on the shaping of a new definition of critical habitat, one of the House floor managers of the 1978 Amendments to the ESA expressed the Congressional intent to limit critical habitat to those areas necessary for species survival: 1 believe the majority of the House is in agreement that the Office of Endangered Species has gone too far in just designating territory as far as the eyes can see and the mind can conceive. What we want to do is make a very careful analysis of what is actually needed for survival of this species. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 8 124 Cong. Rec. 12876 (1978) (daily ed. Oct. 14, 1978) (statement of Rep. Bowen), emphasis added. This concern drove efforts during the 1978 amendments of ESA to scale back the then existing regulatory definition to prevent promulgation of a definition that "could conceivably lead to the designation of virtually all of the habitat of a listed species as its critical habitat." H.R. Rep. No. 95-1625, at p. 25 (1978). In a Senate Report on one of the proposed ESA amendments, the Senate took issue with the potential for overdrawing critical habitat boundaries: It has come to the committee's attention that under the present regulations the Fish and Wildlife Service is now using the same criteria for designating and protecting areas to extend the range of an endangered species as are being used in designation and protection of those areas which are truly critical to the continued existence of a species. S. Rep. No. 95-874, p. 10 (1978). The Senate Report goes on to express particular concern regarding overextension of critical habitat boundaries into areas not necessary for species survival: The Committee is particularly concerned about the implications of this policy when extremely large land areas are involved in a critical habitat designation ... Much of the land involved in proposed designation[s] is not habitat that is necessary for the continued survival of the [species]. It instead is being designated so that the present population within the true critical habitat can expand. Id. Accordingly, the House Report directed that the Secretary "should be exceedingly circumspect in the designation of critical habitat outside of the presently occupied area of the species." Id. at 18, emphasis added. C. The Service Impermissibly Includes Within the Boundaries of the Critical Habitat Areas That Do Not Contain Essential Physical or Biological Features. The standards described in the Proposed Rule defining which parts of the mapped areas are actually critical habitat demonstrate that the proposal goes well beyond Congress' intent in the 1978 amendments. The Proposed Rule asserts that "[a]ll of the units have the primary constituent element described above." Propose~ Rule, 69 Fed. Reg. at 51422. However, contrary NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 9 to these statements, the Proposed Rule does designate areas that do not contain those habitat components essential to the Shrew's survival. In particular, the Proposed Rule substantially overstates the portion of Unit 3 which meets the PCEs. Significant areas of the site are either comprised of habitats dominated by upland vegetation or are completely, or almost completely, barren of vegetation and/or leaf litter, which the Service has identified as the first PCEs. The overstatement of suitable habitat is also notable with regard to the second PCE related to suitable moisture. The Kern Fan site is not supplied by a shallow water table or irrigation, there is no permanent water, and the extent of semi-permanent water is quite limited. Kern Fan has had less than 180 days of water in the last six years. Much of this site remains dry year-round and the only water that is available occurs in the form of precipitation (less than 6" a year), while other portions of the site support water for an average of 29 days annually. On the other hand, water is present on Units 1', 2 and 4 either year- round (the pond at Coles Levee) or for more than 200 days a year. The amount of water is certainly reflected in the detection rate of shrews for the trapping studies that have occurred on all of the units. For example, in March 1999 only 195 trap-nights (TN) were needed to detect 9 shrews at Coles Levee (Unit 4) and 240 TN to detect 5 shrews at the Kern National Wildlife Refuge (Unit 1); while in March 2000 it took 315 TN to trap 2 shrews at the Kern Fan (Unit 3) (see Williams and Harpster 2001). As indicated in the Proposed Rule, the Service's critical habitat mapping effort did not include any extensive sampling of the physiographic features of the various units or involve field surveys to refine the delineation. Therefore, in order to more precisely understand and describe the portions of the Kern Fan that contain the PCEs for the Shrew, Live Oak Associates, Inc. undertook an effort in September 2004 to produce a more fine-grain approach for Unit 3 that is consistent with the PCEs proposed by the Service as essential to the conservation of the species. The purpose of the Live Oak Associates surveys was to produce a more fine-scaled map of those portions of the site that actually support the PCEs. We provide, as Attachment 1 to this letter, a letter from Rick Hopkins, PhD., of Live Oak Associates, describing the methods and results of those surveys ("Live Oak Letter"). The most important reason that much of the Kern Fan fails to meet the PCEs is that water supplies are quite limited. Flow records for the site for the period from January 1999 through August 2004 indicate that the site has only received an average of 29 days per year of water flow. They also indicate that water flows have declined on the site from a high of 30,918 acre feet in 2000 to only 1480 and 1447 acre feet respectively in 2002 and 2003. During the period from 1999 through the present,, the City indicates that very little flow made it past the railroad tracks that essentially divide the parcel into its northeastern and southwestern halves. With the exception of the Kern' River and its floodplain, water has only.reached the lower basins once since 1999. As a result, only limited'areas receive enough water to meet the vegetation and moisture PCEs. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 10 In summary, the Live Oak Letter finds that approximately 1759 acres met the vegetation PCE, and 415 acres that met the vegetation PCE failed to meet the moisture regime PCE. Therefore, no more than 1344 acres of the Kern Fan potentially meet the PCEs as critical habitat for the Shrew. As a result, even if the Service does not exclude the entire Kern Fan from critical habitat, as suggested above, the Proposed Rule should be revised to limit critical habitat in Unit 3 to no more than the 1344 acres which meet the PCEs. 4.. THE PROPOSED RULE DOES NOT COMPLY WITH STATUTORY REQUIREMENTS TO EVALUATE ECONOMIC EFFECTS. A. The Proposed Rule Fails to' Include Economic Analysis As Required Under ESA. The Proposed Rule purports to designate critical habitat without conducting the requisite economic analysis. Section 4(b)(2) of the ESA requires the Service to base designations of critical habitat "on the basis of the best scientific data available and after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat." 16 U.S.C. § 1533(b)(2). Although Kern County is expected to grow substantially in jobs and population, the Proposed Rule does not contain any economic analysis of the effects of critical habitat on this expected growth. Yet designation of critical habitat pursuant to the Proposed Rule is almost certain to have substantial economic effects. Among the economic effects are the following: (1) The City's operation and management of the Kern Fan place high quality water into the groundwater basin for use by both agriculture and urban residents. Designation of critical habitat could force changes in the City's operations which could increase flood risk, reduce groundwater recharge and water for drinking water supplies, increase mosquito populations and attendant public health risk from West Nile Virus, and reduce irrigation water supplies to farms. (2) The Proposed Rule is just one of many similar proposed or final designations of critical habitat in California. Any economic impact analysis must address the Cumulative impacts of the many pending and contemplated critical habitat designations.1 1 A partial list of the pending and contemplated critical habitat designations includes: San Joaquin kit fox; Tipton kangaroo rat; blunt-nosed leopard lizard; California jewel flower; giant kangaroo rat; Kern mallow; San Joaquin wooly-threads; valley elderberry longhorn beetle; Bakersfield cactus; California condor; Conservancy fairy shrimp; longhorn fairy shrimp; vernal pool fairy shrimp; southwestern willow flycatcher; western snowy plover. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 11 (3) The designation of critical habitat will lead to additional or more extensive section 7 consultations and consequent delays. The economic impact analysis must quantify the costs which result from these factors. Postponement of the economic analysis, as suggested by the Proposed Rule, ignores the letter and spirit of the ESA. The proposed designation of critical habitat must be presented to the public, and to local governments and the scientific community, for notice and comment. 16 U.S.C. § 1533 (b)(5). Postponing the economic analysis deprives the public of the opportunity to understand the balancing of environmental and economic factors used by the Service in developing the proposed critical habitat area. Moreover, it precludes the Service from conducting a full and fair 4(b)(2) balancing at the time of proposing critical habitat. See 16 U.S.C. 1533(b)(2). The Service should withdraw the Proposed Rule, and redesign its critical habitat proposal after completing and submitting for public comment the economic analysis. B. The Proposed Rule l~ails to Include Economic Impact Analysis As Required Under The Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 ("RFA"), amended in 1996, requires agencies to examine, and seek to reduce, the impact of any rules the agencies promulgate on small entities, including small businesses, small non-profit enterprises, and small local . governments. 5 U.S.C. § 601, et seq.; Northwest Min. Ass'n v. Babbitt, 5 F.Supp.2d 9 (D.D.C. 1998). When an agency issues a rulemaking proposal, the RFA requires the agency to "prepare, and make available for public comment an initial regulatory flexibility analysis" which will "describe the impact of the Proposed Rule on small entities." 5 U.S.C. § 603(a). The initial regulatory flexibility analysis must contain the following information: (1) the reasons that the Service is considering determining critical habitat; (2) the.objectives and legal basis of the Proposed Rule; (3) the type and number of small entities to which the Proposed Rule will apply; (4) the projected reporting, record keeping, and other compliance requirements of the Proposed Rule; and (4) an identification of all relevant federal rules which may duplicate, overlap or conflict with the Proposed Rule. The analysis must also include a description of any significant alternatives that would minimize the Proposed Rule's economic impact on affected small entities. Section 603(a) provides that an initial regulatory flexibility analysis shall be published in the Federal Register at the time of the publication of general notice of proposed rulemaking. Section 605 allows an agency to certify a rule, in lieu of preparing an initial regulatory flexibility analysis, if the proposed rulemaking will not have a significant economic impact on a substantial number of small entities. If the head of the agency makes such a certification, the agency shall publish such certification in the Federal Register at the time of the NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 18, 2004 Page 12 publication of the general notice of proposed rulemaking along with a statement providing the factual basis for the certification. Here, the Service has elected to defer the RFA finding "until completion of the draft economic analysis prepared pursuant to section 4(b)(2)." Proposed Rule, 69 Fed. Reg. at 51428. The Service's failure to provide such information now violates the spirit of the RFA and deprives the public valuable economic information that may be necessary for providing meaningful comments. 5. THE SERVICE CANNOT DESIGNATE CRITICAL HABITAT FOR THE SHREW UNTIL IT FIRST COMPLIES WITH NEPA REQUIREMENTS. The Service has concluded that it need not prepare an environmental impact statement ("EIS") or an environmental assessment document (',EA") for the proposed designation of critical habitat. Proposed Rule at 23278. This failure violates the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. The Tenth Circuit Court of Appeals held that before the Service can designate critical habitat for an endangered or threatened species pursuant to the ESA, the Service must first prepare an EIS or an EA. Carton County Bd. Of Comm 'r, N.M. v. UnitedStates Fish and Wildlife Serv., 75 F.3d 1429 (10th Cir. 1996). The Service should withdraw the Proposed Rule and complete NEPA review. before proposing any critical habitat for the Shrew. NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP October 1'8, 2004 page 13 6. CONCLUSION For all of the foregoing reasons, the Service should withdraw its proposal to designate critical habitat for the Shrew at the Kern Fan (Unit 3). Very truly yours, Adam H. Relin ofNOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP Enclosures will follow in hard copy. cc: Craig Manson, Assistant Secretary for Fish, Wildlife and Parks, DOI Steve Williams, Director, USFWS Steve Thompson, Manager, USFWS California/Nevada Operations Office LIVE OAK ASSOCIATES an.'EcolOgiCal Consulting Firm: October 15, 2004 Adam Relin Nossaman, Guthner, Knox & Elliott, LLP 18101 Von Karman, Suite 1800 Irvine, CA 92612 SUBJECT: An evaluation of the Buena Vista Lake slirew critical habitat proposal for Unit 3, Kern Fan Water Recharge Unit. Dear Mr. Relin: As was requested by your office, we have evaluated the proposed critical habitat designation for the Buena Vista Lake shrew (Sorex ornatus relictus) within the City of Bakersfield's 2800 acres Kern Fan Water Recharge Area (KFWRA), Bakersfield, California. On March 6, 2002 the U.S Fish and Wildlife Service (USFWS) listed this species as endangered according to provisions of the federal Endangered Species Act, and subsequently on August 19, 2004 they proposed to designate as critical habitat 4,649 acres in 5 Units in Kern County, California. The Kern Fan Water Recharge Unit (Unit 3) includes 2,687 acres of the recharge basins owned and managed by the City of Bakersfield. This Unit is located approximately one mile northeast of the intersection of Enos Lane (Highway 43) and Interstate 5 within the City of Bakersfield, Kern County, California (Figure 1). In identifying critical habitat for the Buena Vista Lake shrew (BVLS), the USFWS was required to "use the best scientific and commercial data available and to consider those physical and biological features (primary constituent elements (PCEs)) that are essential to the conservation of the species" (see 50 CFR Part 17). The Service identified three PCEs for the BVLS. These PCEs are the following: · Riparian or wetland communities supporting a complex vegetative structure with a thick ,cover of leaf litter or dense mats of low-lying vegetation; · Suitable moisture supplied by a shallow water table, irrigation, or proximity to permanent or semi-permanent water; and · A consistent and diverse supply of prey. The USFWS attempted to delineate boundaries of the proposed Units that included these three PCEs, as they also made efforts to exclude "... all developed areas, such as towns, housing developments, and other lands unlikely to contain the primary constituent elements essential for shrew conservation. 'USFWS] mapping units exclude any developed lands supporting sa~ Jos'e' OffiCe: 683© Via Del':Or})i 'Suite 205'. San: J0se,"CA 951:1:9 · Phonei 408:224,8300.':'Fax:4°8~,224:1411:.: oa.khuts~:offic'e! P:0_ B0~ 2697', 49430' R0ad 426,' $'uite 'B:',iOakhurst, cA9364~!,',. Ph0ne: .559/642:4880; FaX: 559-64224883 Vicinity Map 5 mi 0 5 miles approximate scale Regional Map · ~"~"~"~"~ ~* (left) Santa /~= ~.. ' Live Oak Associates, Inc. ~ ~ ' : ~ ~ ~ ~ ~ ~ ~ { ~ ~ : ~ ~ { ~ ~ '~: ~ ~ ~ ~ I Buena Vista Lake Shrew Cr';~:~ i ~ ~ ~f~'ic ', ~:: c~i;: ~: :i , Site/Vicinity Map Not toscale ' ~' ~ ~: outbuildings, paddocks, roads, paved areas, lawns, and other lands unlikely to contain the primary constituent elements." FINE GRAIN MAPPING OF UNIT 3 - KERN FAN WATER RECHARGE UNIT The USFWS completed a course grain mapping exei~cise in their delineation of Unit 3 as they were unable to supplement their mapping effort with empirical data (i.e., measures of appropriate physiographic features). As noted inthe Federal Register (Vol. 69:51420) they relied on data derived from a variety of peer reviewed papers, Recovery Plan for Upland Species of the San Joaquin Valley, California, literature not published in a peer reviewed journal, and Section 7 _ consultations. In addition, they consulted with habitat and wetland maps for the region, satellite imagery, watershed boundaries, soil type coverages, vegetation/land cover data and agricultural/urban land use data. This effort did not include any extensive sampling of the physiographic features of the various units or involve field surveys to refine the delineation. The USFWS did not provide any details as to the minimum mapping unit they used to generate their proposed Units. Objective of Mapping While 2,687-acre of the KFWRA has been proposed as critical habitat, not all areas circumscribed by the USFWS support the PCEs. For instance, significant areas of the site are either comprised of habitats dominated by upland vegetation or are completely, or almost completely barren of vegetation and/or leaf litter. The former areas consist predominantly of grasslands supporting upland annual grass species and of upland mesquite scrub habitats, The latter, barren or nearly barren areas include roads, levees, the bike path, areas surrounding oil drilling equipment and substations, as well as seasonal channels, swales and scalds supporting no vegetation or sparse vegetation and which did not appear to provide a corridor between other areas of suitable habitat. For these reasons, Live Oak Associates, Inc. (LOA) undertook an effort in September 2004 to produce a more fine-grain approach for Unit 3 (Kern Fan Recharge) that is more consistent with the PCEs proposed by the USFWS as essential to the conservation of the species. Therefore, the purpose of the LOA surveys was to produce a more fine-scaled map of those portions of the site that actually support the PCEs as identified by the USFWS. Existing Conditions The USFWS proposes to include 2,687 of the 2,800 acre KFWRA which has been owned and operated by the City of Bakersfield since 1977. The City's primary objectives for managing this area include "flood control, natural lands and wildlife habitat conservation, limited access public uses, water conservation and mineral production (City of Bakersfield Water Resources Department, 2004). Main access to the site occurs at its extreme southwestern end from Enos Lane (Highway 43) approximately one mile north of its intersection with Interstate 5. From the access point, the approximately six-mile long and narrow site trends generally northeasterly and is bound to the northwest by agricultural lands and along its southeastern boundary by the Kern River Canal. Approximately 1500 acres of the site consists of 13 spreading basins. The basins are managed by the City in order to spread floodwaters from the Kern River, as well as from 2 Live Oak Associates, inc. other sources such as the State Water Project, for the purpose of buffering downstream flooding and to allow for the recharge of underground aquifers. Another approximately 760 acres of the site consists of the primary floodplains of the Kern River which runs east to west across the northern portion of the parcel. The residual acreage is devoted to a mixture of uses including a paved bike trail, .access roads, levees, the Kern River Canal and oil drilling. Southern Pacific Railroad tracks run northwest to southeast across the center of the site. The periodic flooding of the KFWRA site has resulted in a mosaic of upland, wetland and riparian vegetation types. The dominant habitat types observed on the site during the September 2004 surveys included chenopod scrub dominated by Atriplex spp.; mesquite scrub dominated by honey mesquite (Prosopis glandulosa var. torreyana); non-native annual grassland; riparian habitat, mainly associated ~ith the Kern River, dominated by Fremont cottonwood (Populus fremontiO, Goodding's willow (Salix gooddingii) and mulefat (Baccharis salicifolia); and seasonal wetlands variously dominated by creeping wild-rye (Leymus triticoides), rush (Juncus spp.), cattail (Typha spp.), and saltgrass (Distichlis spicata). Historically the BVLS was presumed to occur in wetlands around Kern, Buena Vista, Goose and Tulare lakes (see Federal Register: vol. 67: 1014)2). Therefore, the BVLS likely occurred in the wetland and riparian vegetation that occurred along the Kern River. In recent years, there has been limited effort to trap the shrew in the region and it is believed to be restricted to five locations in Kern County. In March 2000, 105 traps were placed along the Kern River downstream of the Railroad and run for 3 nights for the purpose of determining if shrews were present (Williams and Harpster 2001). Two shrews were captured in riparian habitats on the north side of the Kern River during 315 trap nights (Figure 2). Methods Habitat assessment surveys were conducted on the site by Pam Peterson and Melissa Denena, ecologists with LOA, on September 27, 28, 29 and 30, 2004 using an aerial photo of the site (scale 1":400'). To provide maximum visual coverage, the entire site was systematically surveyed either by vehicle or on foot. To assess the site as suitable habitat for BVLS, a sampling protocol was developed by LOA which included the establishment of a sampling point at each observed change in vegetation type or cover, and/or change in leaf litter cover, to determine whether that area exhibited the primary constituent elements (PCEs) discussed in the prior section. Data recorded at each sampling point included: · Total percent cover of vegetation · The dominant six plant species, their percent cover and their USFWS wetland indicator (USFWS 1988) · The presence and depth of matted vegetation cover · The presence and depth of leaf litter At each sampling point, the dominant six plant species of the community, their percent cover and their USFWS wetland indicators (USFWS 1988) were identified and recorded to determine whether the plant community was wetland, riparian or upland. If 50% or greater of the total 3 Live Oak Associates, Inc. LEGEND Proposed BVL Shrew ? Critical Habitat Boundary 0 Trapline Location Buena Vista Lake Shrew '~ Capture Site Live Oak Associates, Inc. Buena Vista Lake Shrew 1 mile 0 1 mile Trapping Results, March 2000 approximate scale vegetation cover was by species having a positive wetland indicator (i.e. an indicator of FAC, FACW or OBL), then the community was determined to be a wetland community. If the community was dominated by riparian shrub and/or tree species, then the area was determined to be a riparian community. Additionally, we determined whether areas meeting the criteria for wetland and riparian communities also met the sub-element of having a complex vegetative structure. If the area had a total vegetation cover of 80% or greater, this sub-element was determined to also be met. If the area was identified as either a wetland or riparian community supporting a complex vegetative structure as per the above, then it Was additionally determined whether the sub- element of an adequate cover by either dense, matted vegetation or leaf litter was present. If matted vegetation was present with a minimum depth of 8 inches and/or leaf litter was present with a minimum depth of 2 inches, then this sub-element was determined to be present and it was concluded that the area met the first of the three PCEs, i.e. "Riparian or wetland communities supporting a complex vegetative structure with a thick cover of leaf litter or dense mats of low- lying vegetation." Areas that met the first PCE were further evaluated using the extensive records recorded and maintained by the City to determine if the second PCE was met. That is, what areas also had "Suitable moisture supplied by a shallow water table, irrigation, or proximity to permanent or ~ semi-permanent water." For the purpose of this effort, we assumed that if the first two PCEs were present at a location, then the third PCE would most likely be present. It was not practicable to develop and conduct a reliable sampling effort for estimating the abundance and distribution of the invertebrate prey of the shrew given the time constraints and difficulty in conducting such studies. Thus, while the final product produced by this effort (i.e., relying on the presence of the first two PCEs) is a much more fine-grained approach then the USFWS' mapping effort, it still likely overestimates the areas suitable for the shrew. Areas not meeting the PCEs as per the above protocol were then evaluated to determine whether they might constitute an interruption of a potential movement corridor for the species between other areas of suitable habitat or if they should be excluded from BVLS critical habitat. For ~ instance, areas that did not meet the PCEs but were located along the Kern River or its tributary channels, and which linked otherwise suitable habitat along the channel, were not excluded. If the area did not appear to link otherwise suitable habitat, it was then excluded from our effort. To further document habitat conditions over the site, photo points were established at strategic and easily replicated points within the study site. As with the sampling points, photo points were recorded on the aerial photo along with the direction that they were taken. Results The site was measured for two of the three PCEs, complex vegetation and moisture regime (i.e. hydrology). The supply of prey was not measured. It was assumed that if the vegetation and hydrology of the site were suitable for the BVLS that an adequate prey base was also present. Vegetation sampling was cOnducted according to a specific protocol, which measured percent 4 Live Oak Associates, Inc. cover, dominance of wetland species (including riparian vegetation), and the presence of matted vegetation or duff/leaf litter. The habitat map provided in Figure 3 depicts those portions of the site that did not meet the first PCE for BVLS per the survey protocol. Data from the sample points is provided in Table 1. A total of approximately 1759 acres met the vegetation PCE. Once suitable vegetation for the BVLS was established, information provided by the City of Bakersfield was utilized to determine if the second PCE (suitable moisture regime) was present. The USFWS assumed that the entire area within the KFWRA supported the suitable moisture regime for the BVLS. However, a review of Table 2 provides empirical data that large portions of the KFWRA do not support adequate hydrology for the BVLS. The City of Bakersfield keeps track of how much water is released into the different basins (which is controlled by various check dams and levees) of the KFWRA (see Table 2). Water is discharged annually into Basins 1, 8, and 9 directly from a canal that runs along a portion of the site's northern boundary. Water then overflows into adjacent basins. Basin 1 overflows into Basins 2 then 3 and Basins 8 and 9 overflow into Basin 10. Basin 11 receives a small amount of water annually due to a leak in the check dam between the basins. Basins 12 and 13 have not received water since before 1999; therefore these two basins do not contain the proper moisture regime to support suitable habitat for the BVLS regardless of the presence of suitable vegetation. Since 1999, the basins southwest of the railroad tracks have not received water, with the exception of Basin 4 collecting a small amount of water in 2000 between March and May. However, this small amount of water in one year does not constitute a suitable moisture regime for the BVLS. Therefore, in addition to Basins 12 and 13, Basins 4, 5, 6, and 7 do not support suitable habitat due to the lack of the moisture regime PCE for the BVLS. A total of 415 acres that met the vegetation PCE, failed to meet the moisture regime. Therefore, 1344 acres of area of the KFWRA met both the vegetation and moisture regime PCEs (Figure 4). Conclusion Except for roads and other similarly barren or dry areas, the great majority of the northeastern half (northeast of the Southern Pacific Railroad tracks) of the parcel was found by our survey to meet the PCEs established by USFWS. According to the water discharge records from the City of Bakersfield (1999-2004) and Florn Core from the City (Pers. comm.), spreading basins located in the northeastern portion of the parcel are allowed to fill first during flow events. Flow records for the site provided for the period from January 1999 through August 2004 indicate that the site has only received an average of 29 days per year of water flow. They also indicate that water flows have declined on the site from a high of 30,918 acre feet (15,587 cubic feet per second) in 2000 to only 1480 and 1447 acre feet (746 cubic feet per second and 730 cubic feet per second) respectively in 2002 and 2003. During the period from 1999 through the present, Mr. Core indicates that very little flow water made it past the railroad tracks that essentially divide the parcel into its northeastern and southwestern halves. With the exception of the Kern River and its floodplain, water has only reached the lower basins once since 1999. 5 Live Oak Associates', Inc. Table 1: Sample point results for the Buena Vista Lake Shrew habitat assessment at the Kern Fan Water Recharge Area. Sample Percent Wetland/ Percent Depth Depth Leaf PCE's Met? Point Cover by Riparian Total Veg. Matted Veg. Litter Wetland Criteria Cover (Inches) (Inches) Indicators Met? 1 60 Yes I None None No 2 100 Yes 80 None 0-8 Yes 3 100 Yes 100 None 0-12 Yes 4 0 No 50 None None No 5 50 Yes 80 None 1-8 Yes 6 50 Yes 100 None 6-24 Yes 7 60 Yes 100 None 0-12 Yes 8 80 Yes 80 None 0-20 Yes 9 50 Yes 90 None 0-60 Yes 10 60 Yes 80 None 0-3 Yes 11 0 No 50 None None No 12 1 No 50 None 0-3 No 13 60 Yes 80 None 0-3 Yes 14 100 Yes 30 None 0-12 No 15 100 Yes 100 0-12 0-12. Yes 16 60 Yes 80 0-12 0-12 Yes 17 I No 30 None 0-5 No 18 100 Yes 90 8-12 8-12 Yes 19 76 Yes 90 8-12 8-12 Yes 20 75 Yes 80 8-12 8-12 Yes 21 65 Yes 80 0-12 0-12 Yes 22 2 No 50 None 0-2 No 23 13 No 40 None 0-2 No 24 2 No 30 None None No 25 1 No 90 None 0-2 No 26 13 No 5 N one 0-12 No 6 Live Oak Associates, Inc. Table 2. Annual distribution of water for year basin between 1999 and 2004. Basin I 1999 200012001 2002 2003 2004 1 Yes Yes Yes Yes Yes Yes 2 Yes Yes Yes Yes Yes Yes 3 Yes Yes Yes Yes Yes Yes 4 No Yes No No No No 5 No No No No No No 6 No No No No No No 7 No No No No No No 8 Yes Yes Yes Yes Yes Yes 9 Yes Yes Yes Yes Yes Yes 10 Yes Yes Yes Yes Yes Yes 11 Yes Yes Yes Yes Yes Yes 12 No No No No No No 13 No No No No No No 7 Live Oak Associates, Inc. Areas within the northeastern half of the site that did not meet the PCEs (Figure 4). Areas which were excluded as not meeting the PCEs included the majority of Basins #8, the northern portion of Basin #9, and Basins #12 and # 13. All four of these basins are currently indicated as "proposed basins" (City of Bakersfield Water Resources Department 2004) and are not currently receiving the waters necessary to support significant wetland or riparian vegetation. Vegetation within Basin #8 and the northern portion of Basin #9 (located at the extreme northeastern end of the parcel), and in Basins #12 and #13 (located just to the east of the railroad tracks) was scarce and dominated by upland grasses. Percent cover by vegetation in these areas was less than 40% and leaf litter and matted vegetation was generally completely lacking. Scattered trees did occur in Basins #8, #12, and #13, and these included some riparian species such as Fremont cottonwood and Goodding's willow, however, these trees were widely dispersed and many appeared to in declining health as a result of water-stress. Basin #8 contains a defined tributary that collects most of the water released into this basin from the canal along the northern boundary, which explains the large upland area. Basins #12 and #13 have not been receiving water since before 1999. Water overflows from Basin #8 into Basins #9 and #10 with Basin #11 receiving water through a leaky check dam. Water does not reach Basins #12 and #13. Therefore, the upland portion of Basins #8 and #9 along with Basins #12 and #13 do not meet the PCEs of the BVLS due to the lack of suitable vegetation and/or lack of a suitable moisture regime. Unlike the northeastern half of the site, significant areas within the southwestern half of the site did not meet the PCEs. These areas are estimated to represent greater than. 50% of the acreage of this half of the site and include a Basins #4, #5, #6, and #7 (all of which are located adjacent to and immediately north of the Kern Riv.er Canal), the area near the access gate from Enos Lane, and several small areas occurring along the northern boundary. As with the northeastern half of the parcel, most of the areas in the southwestern portion that did not meet the PCEs were either barren or had scarce vegetation dominated by upland grass species or by upland mesquite scrub habitat. Riparian trees were often scattered within these upland habitats, however, as with excluded areas in the northeastern portion, these trees, when present in these areas, appeared to be highly water-stressed. In fact, there was a high abundance of dead riparian trees in this portion of the site. Even within areas that were classified as meeting the vegetation PCE, the wetland vegetation overall was much less abundant than in the northeastern half. These field observations are a result of the fact that this area of the site has not received water discharge since before 1999, with the exception of the single event in 2000, which released a small amount of water into Basin #4, and the water that flows through the Kern River and its floodplain. Therefore, Basins #4, #5, #6, and #7 do not meet the PCEs of the BVLS due to the lack of a suitable moisture regime, with some areas also not consisting of suitable vegetation. 8 Live Oak Associates, Inc. LEGEND · ~k _ Proposed BVL Shrew Critical Habitat Boundary Vegetation and Hydrologic requirements met Live Oak Associates, Inc. Buena Vista Lake Shrew 1 mile 0 I miln Suitable Vegetation and Hydrology approximate scale OVERALL CONCLUSION OF CRITICAL HABITAT PROPOSAL FOR UNIT 3 As noted in the frae-grain mapping effort, only about half of the area proposed by the USFWS for Unit 3 supports the PCEs identified in the Federal Register as being essential for the conservation of the species. Therefore, we would at a minimum recommend that the proposed critical habitat area be revised as provided for in Figure 4. It is also important to note, that while Unit 3 supports 58% of the critical habitat proposed for this species, it represents the poorest quality habitat for the species of all of the Units. Much of this site remains dry year-round and the only water that is available (see Table 2) occurs in the form of precipitation (approximately 6" a year), while other portions of the site supports water for an average of 29 days annually. On the other hand, water is present on Units 1, 2 and 4 either year-round (the pond at Coles Levee) or for more than 200 days a year. The amount of water is certainly reflected in the detection rate of shrews for the trapping studies that have occurred on all of the units. For example, in March i999 only 195 trap-nights (TN) were needed to detect 9 shrews at Coles Levee (Unit 4) and 240 TN to detect 5 shrews at the Kern National Wildlife Refuge (Unit 1); in March 2000 it took 315 TN to trap 2 shrews at the KFWRA (Unit 3) (see Williams and Harpster 2001). It is also important to note, that the City spreads all available water on the KFWRA, and that the City has no additional water available to it. It is quite possible that the overall poor quality of habitat on the KFWRA actually serves not as a valuable area that might aid in the species' recovery, but as an ecological sink. Williams and Harpster (2001) believed that Coles Levee and KFWRA might represent one population (i.e., interconnected); if that were true, the conditions as they exist on the KFWRA, might simply serve as an area that individuals disperse to, but not breed and therefore, add nothing to population growth or genetic diversity. KFWRA can only really be important for the species recovery, if a breeding population exist that is sustainable and one that may buffer for local extinctions at Coles Levee. Given the lack of water available for the site, conditions are not expected to improve dramatically without some modification in the manner in which water is spread on the site. A modification in the order water is spread on the KFWRA will likely benefit the degraded riparian and wetland habitats on these lands, thereby benefiting the recovery of the species. Thank you for considering our comments and we look forward to the opportunity to discus these further. Sincerely, Rick A. Hopkins, Ph.D.\ Principal and Senior Wildlife Ecologist 9 Live Oak Associates, Inc. Literature Cited City of Bakersfield Water Resources Department. 2004. "2800 acres" land & water management report. USFWS. 1988. Partial list of plant species that occur in wetlands. USFWS. March 6, 2002. Federal Register Vol. 67:10101-10113. USFWS. August 19, 2004. Federal Register Vol. 69:51417-51442. Williams, D. F., and A.C. Harpster. 2001. Status of the Buena Vista Lake shrew (Sorex ornatus relictus): final report in partial fulfillment of the Central Valley Project Improvement Act Section 3406(B)(1). Report submitted to the U.S. Bureau of Reclamation, 29 October 2001.22 p. 10 Live Oak Associates, Inc. October 18, 2004 VIA EMAIL AND U.S. MAIL Field Supervisor U~S. Fish and Wildlife Service Sacramento Fish and Wildlife Office 2800 Cottage Way, W-2605 Sacramento, California 95825 Subject: Proposed Rule to Designate Critical Habitat for the Buena Vista Lake Shrew (69 Fed. Reg. 51417 (Aug. 19, 2004)). To Whom It May Concern: This letter provides the comments of the Wheeler Ridge-Maricopa Water Storage District with regard to the above-captioned Proposed Rule to Designate Critical Habitat for the Buena Vista Lake Shrew. Wheeler Ridge-Maricopa Water Storage District is a public agency that provides primarily irrigation water supplies to about 90,000 acres of farm lands within its 146,600 acre boundaries. Its primary water supplies sources are the State Water Project via the California Aqueduct and various groundwater banking projects located along the Kern River. Designation of Critical Habitat Units 3 and 4 will affect the District's water supplies. The District is a contract participant in various groundwater bankin9 projects along the Kern River. The Kern Water Bank, the Pioneer Project, and the Berrenda Mesa Project are located adjacent to the proposed Critical Habitat Unit 3 (the City of Bakersfield 2800 Acres). The District currently has about 265,000 acre-feet of water stored in these four Projects from the Kern River, Friant, and State Water Projects. These supplies provide critical dry year supplies when State Water Project supplies are insufficient. The Kern River Intertie located in proposed Critical Habitat Unit 4 is an essential element for both flood control and water supply in years of Kern River flooding. Significant economic effects will occur from critical habitat designation if the operations of the bankin9 projects or Intertie require modification due to Critical Habitat designation: Therefore, the District concurs with the comments on the Proposed Rule submitted by the Kern County Farm Bureau and the City of Bakersfield. , Sincerely, /s/Wm. A. Taube. Engineer-Manager Wheeler Ridge-Maricopa Water Storage District 12109 Highway 166 Bakersfield, CA 93313 661-858-2281 January 2005 February 2005 March 2005 1 1 2 8 4 /5 I 2 3 4 5 9 10 11 12~13 4 ~15 13 14 15 16 17 18 19 13 14 15 16 17 18 19 ~ .......... ~ ............................... 16 17 18 19 ~ 21 ~ ~ 21 ~ : ~ 24 25 ~ ~ 21 ~ ~ 24 25 26 ' ............. 25 '__2~27 28 ~ 27 -28 27 28 ~ 31 ~fll 2~ May ~ June ~ '~ Eebruarg_ ~ _City_ ~ ~ ~ ~ ~~J ~ ~ ~ 1 ~ ~ 4 ~A~rll - CC/CH ge~aersnlp Te~m ....~' ' ' ~ ~ ~ ~y - CCl~ Leadershi~ Tea~ Wkshp. 24 25 26~z2 28 ~ ~ ~ 31 26 27 28 ~ .... ~ October - Leaoue ~nual gonference I 2 I 2 3 j 4 5 6 I 2 3 I0 11 12 13 14 15 16 14 15 16 18 19 ~ 11 12 t3 14 15 16 17 17 18 19 ~ j 21 ~ J 23 21 22 23 ~ 25 26 27 18 19 ~ 21 ~ ~ 24 ~27----j~[~ J ~ 25 26 J 27 '-' ~-- ~ .... 24 , ,3i October 2~ November 2~ December 2~ ' rJ~ ~ 3 4 ~ 1 2 3 ~~~ 15 13 14 15 -16 17 18 J0 11 12 13 i4 15 16 RECEIVED 0CT! 9 2004 B A K E R S F I E L D Department of Recreation and Parks Date: October 19, 2004 To: Alan Tandy, City Manager From: Alan Christensen, Intedm Director of Recreation and Parks Subject: Monthly Report for September Attached are the monthly activity reports for each division. If you have any questions or require additional information, please let me know. B A K E R S F I E L D Department of Recreation and Parks Parks Division September 2004, Report NEW ACREAGE Two parcels were accepted into our maintenance program in September. This included a .07 acre Maintenance District parcel in the southeast plus 1.25 acres of grounds at the new BPD/Fire Station complex on Buena Vista. Unlike all other fire stations, these grounds will be maintained by General Fund Park staff. These areas included 183 trees, 1,193 shrubs plus turf. There was 1 parcel accepted into 365 day maintenance period. This location totals 1.64 acres and includes 114 trees and 417 shrubs. Upon successful completion of the maintenance period, these areas will become responsibility of Parks Division to maintain. PARK RESERVATIONS City parks continue to be a popular recreational destination spot even though we continued to experience near or triple digit temperatures. The 162 September reservations were 15 more than August. Estimated August attendance was 10,199, slightly less than September. TRAINING OPPORTUNITIES Through a combination of necessity and opportunity, several Park employees were offered additional training as spray rig operators or commercial driver's license holders. To date, 4 of 5 candidates have completed a 30 day training activity as spray rig operators. In addition, 4 candidates have participated in an internal Class "A" commercial driver program. One candidate recently passed the DMV driving test on his first attempt. REGULAR EMPLOYEE RECRUITMENT We have begun filling previously frozen regular positions. The first replacements were 3 of 5 open Laborer positions. The remaining 2 Laborers are expected to be filled by early October. Human Resources assisted by completing a citywide Facility Worker recruitment. From this list, we anticipate filling 2 frozen and possibly 4 additional Facility Worker positions proposed due to a better statewide budget picture. We anticipate beginning Facility Worker interviews within 2 weeks of the eligibility list being approved. This leaves us with 2 open Service Maintenance Worker positions plus hopefully a third. The third SMW is proposed due to similar better economic conditions. A SMW recruitment is required as there is not currently a valid hiring list. ADDITIONAL MAINTENANCE DISTRICT WORK Beginning mid September, we were approved overtime to allow volunteers from each of the 4 major assignment areas to work weekends within the Maintenance District. This program is anticipated to continue through September, possibly substantially beyond the end of the month. Focus will be upon those Maintenance District locations in greatest need of line of site, sidewalk clearance, and related safety concerns. Weekend work will also address our back log of Urban Forestry calls. BURGLARY/VANDALISM Our main Beach Park storage room was broken into and approximately $4,000.00 worth of power equipment stolen. Thieves gained access by forcible entry through an exterior door and then into an equipment cage. An example, but not inclusive list of vandalism includes someone removed the ball diamond backboards located at Wilson Park. At Patriots Park, holes were cut into the chain link fence at the north side of the park. The security latch for the parking lot gate was broken as well. The turbine vent was torn from the roof at Castle Park. Shelter lights were broken at Quailwood Park. A playground toy platform now has a hole in it at Jefferson Park. B A K E R S F I E L D Department of Recreation and Parks Date: October 19, 2004 To: Allen Abe, Assistant Recreation and Parks Director From: Ken Trone, Park Construction and Facilities Planner Subject: Parks Department Planning and Construction Activity (September) City Council approved a 4.08 acre park site acquisition and development agreement with Granite Pointe, LLC, to construct the tentatively named Granite Pointe Park in southeast Bakersfield at Ledgeview Lane and Granite Pointe Parkway. Park completion is scheduled for late 2005. City Council approved an acquisition agreement with Centex Homes for a 10 acre park site in southwest Bakersfield to be located at the southwest intersection of Harris Road and Mountain Vista Drive. The State of California Office of Grants and Local Services began an audit of the 2.4 million dollars in Proposition 12 funds used to construct a portion of the Bakersfield Ice Sports Center. The audit is ongoing and should be complete in about 30 days. B A K E R S F I E L D Department of Recreation and Parks Monthly Report' September, 2004 Dr Martin Luther King Jr. Community Center After School Program This program has really taken this month; more than 40 youth have been involved daily. An average of 10 -15 are taking advantage of our home work club and many more enjoy the arts and craft program. Quilting Social This class resume this month 15 seniors enjoy the class weekly. Due to the success and popularity of the class we now offer it two days a week instead of the original one day. Aerobics The evening class continues to be very popular and is increasing daily in attendance ;(30) many of the participants also take advantage of our new session available mornings from 8am to 10am. Sports Our kids are excited about the start of the flag football season to begin on Tuesday October 5 at the PAL fields. We have 15 boys grades 4th 5th and 6th involved in the program, one added addition is our cheerleading team, 12 young ladies grades 1st to 6th have form there own team to support our boys. Health Net The back to school special event of September 10 was a huge success. An estimated 70 participants enjoyed a program of Health Net service information, back to school supplies give away and a movie plus refreshments. Movies in the Park This month was a special month we offered two movies. The first at Jastro Park an estimated crowd of 200 enjoyed the movie Spy Kids. The second at River Oaks park where an estimated crowd of 120 enjoyed watching Finding Nemo. Dean Jones Page I 10/1/2004 8:34 AM B A K E R S F I E L D DATE: October 1, 2004 TO: Alan Christensen, Assistant City Manager FROM: Holly Larson, Supervisor RE: September Monthly Report Aquatic Attendance: See attached statistics for aquatic attendance at McMurtrey. All other pool facilities are currently closed until the high school swim season. C:\DOCUME-l\stbrsyth\LOCALS-l\Temp\monthly report.docC:\DOCUME~l~sforsyth\LOCALS-l\Temph-nonthly report.doc 10/4/20048:50 AM September 2004 ~ September Program Attendance L~ P:~Swi~i~ ;~:?!~i:~,,~:~ i, 426 A~ld~ Ae t0~,i~ 0 ACB::~ ;~ 548 K~ ~ive~S; ~ ~'~?~: 98 0 426 ~ Masters Club W~t~.~Po/d CI~; 0 580 a Lap Swim ~ ........ .~ :~ :~,,,~: :~ DAqua Aerobi~ Rentals~ 580 September ~ACB Program Total ~ 1652] 0 mKern Divers 0 ~Water Polo Club 98 .... 548 B Rentals Septembe~ 2004~ ~ ~.~ ~:: 416 September Rec Program vs. Rec Swim ~endance Swim Total ~ ~ 253~ September 2000 Attendance Total I 29051 ~5oo 1000 500 0 Programming Rec Swim B A K E R S F I E L D Department of Recreation and Parks Date: October 1, 2004 To: Alan Christensen, Interim Director From: Terri Elison, Recreation Supervisor Subject: September 2004 Monthly Report Silver Creek After School Program ......................... 565 Attendance ......................... 28 Average Daily Attendance Students are working on various projects that will be presented on October 14th at the "Lights on After School" event at Silver Creek. This event is a national event which celebrates how important after school programs are to children. Highlights this month included putting on their own Olympic Games complete with medal winners and a torch; creating a NEWS show; various arts and crafts; and outdoor games. Silver Creek Rentals ................................................... $426.00 (Figure does not include deposits) The Silver Creek multi-purpose room and/or pavilion were rented one time during the month of September. The center was rented for a family party. Total attendance was approximately 100. Classes at Silver Creek: # Registered Total Attendance Ballet & Gym (6 -12) 31 79 Ballet & Gym (3-5) 24 54 Belly Dancing 4 16 Calligraphy Workshop no class no class Chess(Beg.) 7 28 Chess (Inter.) 2 8 Clogging 18 72 · Creative Quilting no class no class Dance & Gym (4-5) 11 44 Dance & Gym (2-3) 7 28 Dog Obedience no class no class Guitar (Beg. & Int.) 7 56 Interior Decorating no class no class 11:34 AM 10/4/2004 Terri September 2004 Report.doc Created by Telison Kardio Kick 17 136 Karate 35 280 Latin Dance (Beg. & Int.) 26 104 Pilates 13 71 Tai Chi 19 49 Tennis (Child-Beg) 15 39 Tennis (Child-Iht) 12 48 Tennis (Adults) no class no class Upholstery 5 20 Yoga 5 20 TOTAL 258 1,152 Classes at Other Facilities # Registered Total Attendance Siemon Park Tennis (Child) no class no class Tennis (Adult) no class no class All Star Dance Studio Dance & Gym (2 Y~ - 4) 1 4 Dance & Gym (4 - 5) -1 4 American Academy of Gymnastics Gymnastics (You & Me) 1 7 Gymnastics (3 - 4) no class no class Gymnastics (4 - 5) no class no class Gymnastics (K - 6yrs Boys/Girls) no class no class Creative Pursuits Knitting and Crocheting no class no class Bead Connection Jewelry Making-Beading no class no class Corp Yard Lunch Room Cartooning no class no class My Gym Children's Fitness Center Mommy & Me (Tiny Tykes) 1 8 Mommy & Me (Waddlers) no class no class TOTAL 4 23 Attendance Silver Creek Center: Rentals ......................................... 100 Classes ........................................ 1,152 Registrations Taken: 249 After School Program ................ 565 # of Guests Served: 660 Flag Football Mtgs .................... 85 i~e # of cuest,.e~,~,o,.ot ~.c,u,. r~g~stra~o.I Flag Football League ............ :...125 TOTAL .................... 2,027 11:34 AM 10/4/2004 Terri September 2004 Report.doc Created by Telison B A K E R S F I E L D Department of Recreation and Parks Date: October 4, 2004 To: Allen Abe, Assistant Director From: Linda McVicker, Recreation Supervisor Subject: Monthly Report for September ADULT SOFTBALL The Fall Softball League has 84 teams. There are 60 men's teams and 24 co- recreational teams. We have 29 more teams registered this year than we had last year. · We conducted our Managers Meeting on September 9, 2004. We had over 90 people in attendance. · The Fall League began on September 13 and will end on December 9. FLAG FOOTBALL · We have 40 children signed up for our Flag Football League at Silver Creek. We had 82 parents attend the Parents Meeting and approximately 125 people at the first game. · The League will run for September 25 to October 30. UP-COMING PROGRAMS · The Cross ~Country Meet will be held at Yoktus Park on October 2, 2004. We are expecting over 150 children to attend. · We are starting a new Basketball Clinic. One will be held in the gym at the Dr. Martin Luther King Jr Center and one will be held at the Silver Creek center. Both clinics will be held in October · We will begin a Pee Wee sports program in February and in March. One will be held at Silver Creek Park and the other will be held at Jastro Park LMC B A K E R S F I E L D MEMORANDUM TO: ALAN TANDY, CITY MANAGER FROM: JACK HARDISTY, DEVELOPMENT SERVICES DIRE DATE: October 20, 2004 . SUBJECT: PARKING TICKETS AT AUTO MALL Council Referral No, Ref000946 COUNCILMEMBER SALVAGGIO REQUESTED STAFF RESEARCH WHY TRAFFIC TICKETS ARE BEING ISSUED TO CITIZENS PARKING ON MOTOR CENTER DRIVE AND OTHER STREETS AT THE AUTO MALL, AND REPORT BACK. A complaint has been received about parking tickets being given to customers and employees parked alOng Motor Center Drive. There are dealerships at the southeast corner of Motor Center Drive and Wible Drive and one at the southwest corner of Motor Center Drive and Gasoline Alley. There is a vacant lot between the two and vacant property on the north side of the westerly end of Motor Center Drive. Parking is limited to two hours. The manager of Motor City explained that he has over 80 employees and there isn't sufficient parking on the site to accommodate all of them and the customers. He also said it isn't .unusual for customers to take more than two hours to purchase a vehicle. He would like daytime parking limits removed. The manager of Jim Burke Ford dealership at Motor Center Drive and Gasoline Alley has commented that he is concerned that deviating from the no parking concept could raise safety issues. Staff works with the business and property owners on appropriate parking limits along streets. This is reflected in the current situation which represents a shift from no on- street parking at all within the Auto Mall as proposed by the project developer and approved by the city. Because of a need for uniformity in parking regulation and concern that changing the parking limits on a short street such as this would affect other property owners and businesses, staff recommends that all of them be involved in a discussion of any proposed change. Staff will work with the affected parties to reach a consensus. JH:djl P:\CCReferral\Ref946.doc B A K E R S F I E L D RECEIVED ME M O RAN D U M OCT I 9 200~ TO: Alan Tandy, City Manager CITY. MANAGER'e~ .7 '" FROM: ~4~ck Hardisty, Development Services Director DATE: · October 19, 2004 SUBJECT: Sign Removal at 1700 Custer Avenue/Referral No. 961 Councilmember Salvaggio requested Code Enforcement to remove a sign in a window at 1700 Custer Avenue. Code enforcement re-inspected the violation at 1700 Custer Avenue on October i 9, 2004 and there was no violation present. The sign was removed from the window.