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HomeMy WebLinkAboutJUN 11 MBHCP MINUTES Metropolitan Bakersfield Habitat Conservation Plan Implementation Trust Group MINUTES Agenda Item 2 June 11, 2009 at 10:00 a.m. County of Kern Administrative Center Fourth Floor Hearing Room 1115 Truxtun Avenue Bakersfield, CA 93301 IMPLEMENTATION TRUST GROUP TO RECONVENE Implementation Trust Group: Ted James – Kern County (Chairman) Stanley Grady – City of Bakersfield (Secretary) Julie Vance – CDFG Advisory Member Tim Kuhn – USFWS Advisory Member Donna Carpenter – Public At-Large Advisory Member ROLL CALL: Present: Ted James, Stanley Grady, Julie Vance, Tim Kuhn, Donna Carpenter Absent: None STAFF: Bruce Divelbiss, Jennie Eng, Mitch Van Wyk, Pamela Elisheva, Cecelia Griego, Melanie Dunwoody, Dana Cornelius * CONSENT AGENDA/OPPORTUNITY FOR PUBLIC COMMENT: * 1. Approve minutes for the MBHCP Implementation Trust Group meeting of March 5, 2009. *Resolution for Jim Movius for recognition of service as an integral staff 2. for the original 1994 wildlife agency permits, providing negotiations with wildlife agencies throughout the permit’s life, and successfully implementing and improving the plan. Mr. Movius was not present. * Purchase of Habitat Mitigation Land: 3. For each property listed below, staff recommendation is as follows, with the specific purchase price recommendation listed with the property below: (1) MAKE FINDING THAT THE ACQUISITION IS CATEGORICALLY EXEMPT PURSUANT TO §15313 OF CEQA: (2) UPON (A) SELLER’S SIGNING OF A MEMORANDUM OF SALE AND ESCROW; AND (B) STAFF’S RECEIPT OF DOCUMENTATION FROM CDFG INDICATING CDFG’S INTENT TO ACCEPT TITLE TO THE PROPERTY AT THE CLOSE OF ESCROW, AUTHORIZE CITY OF BAKERSFILED FINANCE DIRECTOR TO ISSUE WARRANT IN AMOUNT SUFFICIENT TO COVER PURCHASE PRICE; ESCROW COSTS; INCENTIVE INTEREST OF .583% OF SALE PRICE PER MONTH UNTIL THE RECORDIATION OF A MEMORANDYM OF SALE AND ESCROW; REAL ESTATE TAXES FOR PERIOD WHICH THE MBHCG IS RESPONSIBLE; AND PRO RATA LIABILITY INSURANCE UNTIL THE CLOSE OF ESCROW. IF APPLICABLE, TO TICOR TITLE COMPANY FOR THE PURPOSE OF PAYINGN THE SELLER IN ACCORDANCE WITH THE SIGNED MEMORANDM OF SALE AND ESCROW; (3) WITHIN 30 DAYS FOLLOWING CLOSE OF ESCROW, TRANSFER THE APPROPRIATE AMOUN TO CDFG FOR ENHANCEMENT; AND WITHIN 6 MONTHS FOLLOWING CLOSE OF ESROW, TRANSFER THE APPROPRIATE AMOUNT TO CDFG FOR ENDOWMENT, and: a) APN 058-250-08 (15 acres) – being a portion of the N ½ of Section 13, T26S, R22E, MDM, County of Kern, State of California; located 3.5 miles north of McCombs Road approximately 1.5 miles east of Corcoran Road, John Underhill in western Kern County. The property is owned by and the proposed purchase price is $15,000. b) APN 058-010-27 (81.38 acres) – being the S ½ of SE ¼ of Section 12, T26S, R21E, MDM, County of Kern, State of California; located 4 miles north of McCombs Road approximately 1.5 miles east of Lost Hills Road, Mildred in western Kern County. The property is owned by the Herboldsheimer Estate and the proposed purchase price is $93,587. c) APN 058-101-13 (40 acres) – being a portion of the SE ¼ of Section 24, T26S, R21E, MDM, County of Kern, State of California; located 2 miles north of McCombs Road (Hwy 46) approximately one mile east of I-5, in Kent Bowerbank western Kern County. The property is owned by and the proposed purchase price is $40,000. d) APN 058-200-16 (2.52 acres) – being apportion of the NW ¼ of the NW ¼ of Section 3, T26S, R22E, MDM, County of Kern, State of California; located one mile south of the Kern National Wildlife Refuge, approximately one mile west of Corcoran Road, in western Kern County. The property is Peter Bailey owned by and the proposed purchase price is $3,276. e) APN 058-230-20 (20 acres) – being a portion of the SE ¼ of Section 4, T26S, R22E, MDM, County of Kern, State of California; located two miles south of the Kern National Wildlife Refuge, approximately 1 ½ miles west Noe of Corcoran Road, in western Kern County. The property is owned by Martinez and the proposed purchase price is $26,000. * 4. Request for authorization to reserve a tax defaulted parcel (APN 044-190-07) of Kern County Assessor Parcels, leading to the acquisition by the MGHCP as habitat mitigation land. APN 044-190-07 is 41.91 acres located in Section 36, George Scofield et al. Township 25 S, Range 21 E, owned by This was withdrawn from the agenda. No action needed. * Update on Phase I Environmental Site Assessments (PSA) prepared by 8. Krazan & Associates on properties acquired by the MBHCP Implementation Trust Group. No Member commented on the Consent Agenda Items. No one in the audience commented on the Consent Agenda Items. Member Grady moved, seconded by Member James, to approve Consent Agenda Items as read. Motion unanimously carried by group vote. REGULAR AGENDA ITEMS: Purchase of Habitat Mitigation Land – Change In Circumstances Report: 5. a) APN 069-192-07; 069-230-09; 069-230-34; 069-230-35; 069-230-37; 069- 350-31; 087-130-25; 087-140-16; 087-140-18; 087-160-24 (1,695.16 acres) – generally located east and west of Interstate 5, generally between the intersections of State Route 46 and Interstate 5 and Seventh Standard Chang et al Road in north-central Kern County. The property is owned by and the approved purchase price is $5,085,480. Discuss the possibility to pursue an agreement with the property owner that the MBHCP Implementation Trust Group will pay for up-front, the costs of the Phase II Site Assessment recommendation on four of the ten parcels approved for acquisition and clean-up of the ten parcels with the understanding these costs will be deducted from the sale price during escrow. The agreed upon purchase price has been amended down to $5,062,170 due to the loss of 7.77 acres of disturbed potential habitat mitigation land. Staff presentation given stating that they have determined that a Phase II Site Assessment is required on four of the parcels at a cost of $21,100, and that the clean up for illegal dumping on all of the parcels would cost between $75,000 to $125,000. Staff further provided that the sellers have indicated that they are not willing to cover these costs up front, and would be willing to have these costs deducted at the close of escrow from the sales price. Staff indicated that they would like to enter into this type of agreement with the sellers to obligate them to release those funds when escrow closes, and visa versa if the Trust Group decides not to proceed with the purchase, the Trust Group would be responsible for those costs. Staff further provided that 7.77 acres has been determined to be disturbed and they will not be given habitat credit. Therefore, the purchase price has been amended to reflect that. This was the end of Staff’s presentation. Member Grady inquired if the new purchase price was $5 million, to which Staff responded in the affirmative. He further inquired as to the status of the escrow, and specifically if there were things beyond the assessment that are keeping them from closing the escrow in a timely manner. Staff responded that they are waiting for authorization for Phase II and the clean up. Staff clarified that once the Phase Il clean up is done they will package it and send it to the State for review. Member James inquired when this item was first considered to which Staff responded it was approximately one year ago. Member Vance stated that a good portion of the part that was disturbed was done after the initial site inspection. Member Kuhn added that the disturbance had to due with a pipeline that was installed without authorization. Member Grady inquired if they are buying the 7.7 acres at a reduced cost or if it is excluded from the total number of acres being acquired. Ms. Griego responded that the amended price is a reduced cost that Mitch Van Wyk negotiated because of the disturbed land. Mr. Van Wyk clarified that the 7.7 acres will be included in the total, and there will be an easement, and deducting the normal price that would be attributed to that 7.7 acres from the total price. It was further clarified that would still be acquiring 7.7 acres without credit and turning it over to the wildlife agency. Member James inquired if some other party is going to remediate it why they would not get the credit. Mr. Divelbiss inquired when the package is sent to the state if there is any indication as to the acceptability of an easement for a pipeline across this property. Ms. Griego stated she understood they received correspondence from Ellen Cypher indicating that they wanted to get credit for that 7 acres and that is why they got the new price. Mr. Divelbiss pointed out that it is not a credit question, but rather if they will take title to a fee with an easement for a pipeline. Ms. Cypher, Department of Fish and Game indicated that their legal staff is reviewing the wording of the easement to make sure it is acceptable. Mr. Divelbiss also asked that if they get their approval back if memorandum of sale and escrow would be the technique proposed to use. Mr. Van Wyk responded that it is going to be a 1031 exchange and will not be any memorandum of sale and escrow. It was also questioned if a separate agreement with the sellers would be indicated for the clean up costs. Mr. Divelbiss pointed out that if there are escrow instructions with the seller that indicate they will assign some of those proceeds it will be sufficient, however if there are no escrow instructions a separate agreement would be needed. Mr. Van Wyk stated they will need a separate agreement because they will not have escrow instructions. Mr. Divelbiss stated it will require approval from the Trust Group, unless the agreement is authorized to be signed today. Mr. Grady stated that he would prefer to authorize an agreement today. Ms. Elisheva asked if they are not only talking about taking the cost of the remediation and the Phase II out of the escrow, but also what happens if the deal falls apart, because then the Trust Group has a lot of expenses that have put out. Mr. Van Wyk clarified that the seller is willing to pay for the clean up costs if the deal goes through, but if the deal does not go through he does not want to have anything to do with it. Mr. Divelbiss clarified that they will authorize Phase II and clean up of the properties up to $125,000 and that agreement will be that they will compensate the Trust Group and allow those clean up costs to be deducted from the sales price at the time of close. It was further clarified that if the deal falls through after clean up then the seller is still responsible for the clean up costs. The hearing was opened up for public comment. There was no public comment. Member Carpenter inquired if there was a way to do a pass by the State to see if they would accept it with the easement. Annee Ferranti, with the Department of Fish & Game indicated that the easement language is with their legal department and they are waiting for them to finish their review and provide them with an opinion. They expect to have that feedback from legal before the clean up occurs. Member Grady moved, seconded by Member James, to approve Staff’s recommendation and authorize the real property negotiator to prepare an agreement and have it executed by the Chairman, subject to Counsel’s review, to provide for the property owners signing an agreement to have the costs of remediating the site deducted from the escrow proceeds. Motion unanimously carried by group vote. Discussion on possibility of Proposition 8 temporary reduction in assessed 6. value by the Kern County Assessors Office for those properties on which the MBHCPITG pays taxes. Staff presentation was made stating that in March 2009 the Trust Group received a letter related to Proposition 8, and at that the Trust Group directed staff to do more research on Proposition 8 and whether to pursue it for properties that the Trust Group is pursuing for habitant mitigation. Staff explained that the assessor has a base value for property, and it is established by several criteria. If a Proposition 8 reassessment is done and the market value was found to be below the base value, the assessment could be lowered to the market value, therefore paying less tax on the property. However, the assessment would only be effective for the tax year evaluated, and a reassessment would occur annually until it evened out in value. Staff indicated that this would be a very time consuming project to track all of the properties in motion and that the potential savings would be negligible. Therefore, Staff requested that no action be taken. Member James commented that it was his understanding that the assessor will be doing the re-evaluations anyway. Staff responded in the affirmative, adding that the assessor is on a budget and there is no timeline on when it would be done. This item was opened for public comment. No public comment was received. There was no member/group comment on this item. Member Grady moved to receive and file this item. Motion unanimously carried by group vote. Continued discussion on processing backlog issues involving the State’s 7. receipt of properties that remain in escrow and the possibility of the MBHCP Implementation Trust Group hiring contract staff at the Wildlife Conservation Board for processing the closing of escrows of MBHCP habitat mitigation properties. Member Vance reported on this item stating that they’ve had several discussions with Wildlife Conservation Board Staff on potential mechanisms to fund staff to work on the backlog. The initial request from the Trust Group was to get an idea if they could do this and what the cost would be. Member Vance indicated that after several discussions with Wildlife Conservation Board, Wildlife Conservation Board said there is really no good way of funding a position at the level which would be needed for this because it would either have to be a contract position, which would take quite some time to get in place. She indicated that they discussed temporary or student help, however there was a question about how effective that would be to moving things along. Wildlife Conservation Board’s final answer was that temporarily funding something could help move things along, and that they are committed to moving these things through as fast as possible because it is a priority. Member Vance also stated that Wildlife Conservation Board has agreed to process these things differently from this point forward for all of the new ones received. They also agreed that the land agent in the Habitant Conservation Planning Branch could process these things alone and that it would be a sign off on their part rather than dual review that had been going on thus far. Member Vance concluded by reiterating that Wildlife Conservation Board promised to make the backlogs a priority and that the new things would be moving faster. Member James inquired about issues with Fish & Game up in Sacramento, and inquired if the 79 are being held up by Wildlife Conservation Board, to which Member Vance responded in the affirmative. He further inquired what Member Vance’s observations are. Member Vance responded that she could talk to the Habitant Conservation Planning Branch about funding. The discussion was opened for public comment. Annee Ferranti, Department of Fish and Game commented that there were 165 total in the backlog, and they completed 65, which meant that there were still 82 open, and 18 were near completion. In the last two weeks they have received several that had been completed. She confirmed that her sense is that they are working on them. Scott Frazer, Fish and Wildlife Service inquired what the average time to process an acquisition. Member Vance responded that it depends if you’re talking average in the last six months, or over the last 10 years. Mr. James commented that it is around two years, and Ms. Griego responded that some take five years. Member James commented that the time it takes is not very appropriate for them which has been a frustration. Mr. Divelbiss pointed out that is why they have the Memorandum of Sale and Escrow process, which is completely dependent on an unconditional acceptance by the Department. Mary Griffin commented that there is a 20 year permit that will come to an end, and inquired if there’s any way to get over this hump that could be anticipated or built into the next HCP if another agreement comes about that would be more efficient. Member Vance responded that this could/should be done. Member James commented that this program saves Staff time for the wildlife agencies because they don’t have to comment on individual programs, and the hope has always been that they were devoting sufficient staff to help move these forward as they help them with the implementation of the Endangered Species Act. Mr. Divelbiss commented that it is a joint power agency, and it might be possible that someone could either be detailed from the State to work either here or somewhere else for them, or someone who is working here already for one of the two agencies could be authorized to do some of the processing for the State so instead of sending the package to the State most of the review could be done locally. No further public comment provided. No further group comment made. 9. Change in the Department of Fish and Game Acceptance Letter. Staff commented that they received a letter from Department of Fish and Game which revised some wording on their acceptance letter involving the third paragraph under the Analysis section where, “The department agrees to accept title to the property described above contingent upon no additional easements, access issues, or any other restrictions disclosed prior to the closure of escrow, which may preclude or hinder the department from managing the property in perpetuity.” Staff stated that they have concerns related to this language because it could be interpreted ambiguously and they would like more clarification from the Department of Fish and Game as to what their definitions of “preclude” or “hinder” mean to them so there is a better understanding of what they are looking for. Member James inquired if that dialogue has taken place prior to this meeting, to which Staff responded in the negative. Member James inquired if Member Vance is prepared to comment on this language, to which she responded that she is not prepared. Member James inquired where the language came from and what the background of it is. This item was opened for public comment. Annee Ferranti, with the Department of Fish & Game commented that this came about because they had some issues with a piece of property that was in escrow where clean up had been done, and then it was discovered through a piece of correspondence from an adjacent neighbor that they had issues with access, and the adjacent neighbor was in a position where they were unhappy with the ways they could potentially manage the property. She indicated that the Trust Group had already spent funds to do clean up and this all came to light during the escrow process, which precluded them from being able to manage the property. Member James commented that this came up on one item, and they’ve been operating this program for a number of years, and he questioned why they think they had such a problem because ordinarily access and other issues are resolved to the satisfaction of the Department of Fish & Game a lot earlier in the process. Ms. Ferranti responded that the adjacent landowners sent a letter and when they tried to work with the adjacent landowner they were unable to do that. She indicated that there were multiple discussions through that process with Mitch and others trying to work those issues out and they were very uncooperative. Then during that process they discovered that the adjacent landowner was literally attempting to dictate to the department how they would manage a large chunk of that property for tumbleweeds, which is contrary to how they manage it. Ms. Ferranti stated that it was clear that they were being placed in a position where they were going to be unable to manage and access the property. Member James stated that his concern is that they have tried to structure this process over the years so they can give the property owner selling the property his money because they were concerned about how long it was taking to process the conveying of the property through the State, and now it seems like this would be putting up another roadblock of concerns in the process of transferring the property and would put the Trust Group in a position of questioning whether or not they should pay the property owner if there is some other outstanding issue. Ms. Ferranti responded that it was not their intention to put up any roadblocks. Ms. Elisheva provided that the acceptance letter that this showed up on was not the property that they’ve had problems with concerning access, but rather a response to the problem that they had with access. Ms. Elisheva commented that the process was working, because where the easement issue came up was when the transfer documents was at California Department of Fish & Game in Fresno, and the access issues came to light before this letter was ever sent out to them for them to accept it. She reiterated that the process does work to uncover these things before they accept the transfer. Ms. Elisheva stated that if the letter goes out it would signal that they could pay the owner, that the State has agreed to accept the property, and from that point on those transfer documents get sent to the Wildlife Conservation Board and there may not be as much of a chance to discover access concerns, or that would preclude this language, after that point in the process, because this is the State telling them that it is okay to have Memorandum of Understanding recorded and the owner could be paid. She further commented that she is not sure what the extra language provides because she is not sure that there is an opportunity to uncover issues from this point on until the close of the escrow. Mr. Divelbiss commented that they have gone to a Memorandum of Sale and Escrow, paid the seller, and then have some dumping issues arise, or discovery of something that made the property less suitable, and it was cleaned up. He pointed out that they have taken on the responsibility to get the property in a condition to close the escrow for the State. Ms. Griego commented that this has been done in the past, but it is something that is easily fixable. Mr. Divelbiss inquired if it was unusual to have to cross somebody’s property for access to the acquired property, to which Member Vance responded it depends where the property is. However, with the smaller parcels sometimes there is not a public road. He commented that it is unusual and rare and when it pops up they are changing the rules. Member Vance responded that the changed language is not intended to change the rules. Mr. Divelbiss stated with this language he could not recommend moving forward with any further Memorandum of Sale and Escrow because there’s too much risk for the Trust Group. Member Vance stated they should go back and look at the language and have some discussion. Member James stated that this would be a definite shift from the letters of approval that they have received in the past, and that this program needs some certainty when they pay the seller of the property. Ms. Ferranti stated they don’t have a problem once the escrow is closed. She suggested that perhaps there could be a second letter from they saying that when all of the documents are in place and everything has come to light they can come back with another correspondence that states they accept it. Member James responded that this is what has been occurring. He stated that this due diligence that they need is being provided up front, but it needs to be done in a timely way otherwise they are going to have a seller who says they can’t wait. Mr. Divelbiss commented that they do not like the use of the Memorandum of Sale and Escrow, and would prefer to have everything taken care of at the close of escrow like all other real estate transactions. He stated the Memorandum was only used because it was taking five years to get things done. Mr. Divelbiss further stated that the Trust Group cannot put the money out and then have Department of Fish and Game say they don’t want the property because it will be too hard to manage. Member Vance stated that they need to go back and have further discussions internally to figure out if the language is something they want to retain, or if they need to send the letter as formally drafted at a later stage in the process. She stated there may be a way to satisfy their concerns as well as the Trust Group. Member James commented that they need to look for as much certainty in this process. Member Vance will have further discussion with Department of Fish and Game and no letters with regard to this issue will be sent. Ms. Eng will check with Member Vance to see if there will be further comments for the meeting. Mr. Divelbiss stated that if Member Vance has information for the Trust Group she can transmit it in advance. No further comments. No action taken. 10. Request by Scott Frazer, Private Lands Biologist, Kern National Wildlife Refuge Complex, Delano, CA to make presentation and discuss wetland and upland habitats purchased by the Trust Group for mitigation credits. Mr. Frazer stated when he had discussion over a year ago he did not follow up to see if there was a need for a mechanism to avoid seeing additional losses of wetlands when properties are purchased for the Metropolitan Bakersfield Habitat Conservation Plan. He stated he spoke with a lender who was asking about values and the process for acquisition of conservation easements prior to them making a final decision on whether they would accept, what they felt was an offer from Metropolitan Bakersfield Habitat Conservation Plan. Mr. Frazer stated that it is important that they find a way not to see the wetlands resource diminished in the process of doing the important work that the Trust Group is doing to protect the listed species and habitats within the Trust Group’s project area. He showed the geographic area of the 22,000 acre boundary within which they have both first and second priorities identified. Mr. Frazer pointed out the priority one purple lands are actively managed duck clubs, however he did not differentiate between those acres that are flooded or inundated on an annual basis from the uplands that those same landowners own. He explained that in some cases, and in particular in the gooselake bottom some of the wetlands are relatively small on a percentage basis of the total ownership. Mr. Frazer stated that the purpose of their project is to protect these habitats because they have very significant migratory bird resources in use. He stated that locally they have active involvement by a number of private land owners, which is typically represented by the Tulare Basin Wetland Association. He stated that they feel that their interest, as well as the Central Valley Joint Venture Office in Sacramento, have become aware of this activity being pursued by multiple organizations. Member James inquired if properties the Trust Group is acquiring are working at cross purposes with the wetland activities. Mr. Frazer explained that in a case about a year ago there was a wetland, land that was inundated with water, approximately ½ mile south of Garces Highway, and four-five miles east of Corcoran Road was purchased, and as soon as it is purchased and given to the State, their intention is to manage it as a dry site, and therefore all the wetland values go away when the ownership changes, because essentially, including the refuge, all of these wetlands receive active management and application of water to be a managed wetland habitat. He indicated that without that management, because of the diversion of the Kern River at Lake Isabella there is no natural flow, and the rainfalls insufficient to manage wetlands in the southern part of the San Joaquin Valley. Member James inquired if Mr. Frazer’s activities were different then those of the properties the Trust Group is acquiring because they are dry land species and there is not an intention to continue to put water on these properties. Mr. Frazer responded in the affirmative explaining that it would be a low level of concern in as much as they did not see that there would be a focused effort or approach to landowners that had wetlands to acquire them, and they weren’t even sure if they would qualify or be eligible for the mitigation credits that the Trust Group is earning for the MBHCP. He further pointed out that this did occur in this one case last year, and based on an activity that’s an ongoing negotiation, it appears that this could occur again this calendar year. Mr. Frazer stated that the would like to see the Trust Group’s support and involvement in either developing some mechanism to avoid the loss or diminished wetland habitat base as the Trust Group works on its projects. Member James commented he is concerned with Mr. Frazer’s group asking the Trust Group to limit their ability for looking for lands. Member Vance commented that the potential for actual conflict is pretty limited because generally the definition of active wetland is flooded sometimes in the last three years. She indicated that there are instances in this area where there are old clubs that have not been flooded recently, and the areas once flooded which reverted back to the upland species which have recolonized, and the WFG has taken some of those lands, and they don’t see that as a conflict because they were no longer being actively managed as wetlands. She pointed out that for purposes of this Trust Group program they do need upland habitat. Member Vance further provided that the WFG is a participant in Mr. Frazer’s efforts, and they do see the value in wetland habitat. Member Vance also clarified that she shares Member James concerns, and does not want to categorically limit the opportunity to acquire land in the vicinity because that would constrain the options for acquisition in that area. Member Vance suggested having a more focused discussion between the Department and the Refuge about what specific parcels are of interest and a way to identify those which the Refuse is interested in when going through the process. Member James further commented that he does not want to run up the cost of land because both agencies are bidding on a piece of land. He stated that there could be some coordination, but he is concerned about limiting the Trust Group too much given the extent of the priority one and priority two lands. Member Grady inquired as to “actively managed” and if that means that there is no natural rain fall, and it has to be artificial wetting. Mr. Frazer responded in the affirmative, adding that typically the most reliable source of water is ground water, and most of the private clubs have their own well. Mr. Frazer further explained that there has been a creation of an improvement district within the Semi Tropic Water Storage District that has delivered service water, if and when available, and in the last five years it has been available two years on a fairly substantial basis, and on less full yield in a third year. He pointed out that this year and last year there has been no surface water available to these properties. Member Grady inquired if there is consideration given to the fact that it might have been flooded at one time. Member Vance responded in the affirmative. Ms. Cypher, Department of Fish and Game stated that when it was offered for acquisition it had been flooded within the last three years. She indicated that the seller was planning to flood it that winter and so they asked him not to flood it past January because they wanted it to start reverting to upland habitat. She further explained that when they went and looked at the site it was not wet, and had species such as Iodine bush, and things that they find in the habitat for the upland species, and it did not have cat tails or the sort of thing wetland that you normally envision. She stated that there were berms used to make basins which were flooded. She stated that it was definitely what they would consider a wetland, and commented that they have turned down other areas that obviously remained too much of the year and had a high water table which did not look like suitable habitat for the species. Ms. Cypher indicated that once they take the land they don’t want to keep putting water on it because then it’s not suitable for the species that it covers and there is not full mitigation for any disturbances. Ms. Tenant, Department of Fish and Game, commented that when she went out to inspect the subject property she can’t say whether it had water on it in the previous three years, but there were burrowing owl on the property using the berms, there were small mammal burrows throughout the area, and therefore it felt like it was an upland habitat. Mr. Frazer stated that he looks forward to working with the Trust Group to find a way to avoid having this ongoing issue. He reiterated that the Refuge has been in contact by a property owner that intends to sell their property to MBHCP, and that would be a direct loss of over 100 acres of habitat, and would be a significant loss to the wetlands on the private sector in the Tulare Basin. Mr. Divelbiss inquired if they end up with an intermittently flooded area that has not been flooded recently and is beginning to revert, and is subsequently acquired, how does the Refuge get around the problem of taking those species as it is reflooded. Mr. Frazer responded that the environmental document specifically addresses that because they are not going after those reverted areas. He reiterated that they kind of have a matter of impression more than a matter of a conflict or what are uplands and what are wetlands. He reiterated that they are not concerned with the old duck clubs that haven’t been flooded in more than three years, because it is not their intent to work with them initially. He pointed out that some new clubs have been created since the document was written. Mr. Van Wyk inquired what funding is available to acquire the wetlands so they can proceed with the uplands given there is a participation agreement. Mr. Frazer responded that their funding source is the receipts of duck stamp sales and the Migratory Bird Commission annually allocates those receipts to projects nation wide. He further indicated that they have completed their first three appraisals and will take those to the Migratory Bird Commission in September and that will be the last major hurdle for them to obtain funding. He explained that they first have to do an appraisal and then they take the appraisal and a signed Option for the transaction to the Commission for funding. Member James commented that there may be some opportunities to coordinate, however he has an obligation to the development community in coming up with appropriate habitat lands. Mr. Divelbiss inquired if the appraisals are contract appraisals or in-house, to which Mr. Frazer responded that they have to use a quasi-government agency, and so they are contract appraisals. Ms. Cypher, Department of Fish and Game inquired if there is a way that the Trust Group could buy for example the 500 acres and then subdivide it and sell the 100 acres of wetlands, and only transfer only the 400 acres of upland to Fish & Game and still get credit. Member James responded that they prompt offers and do not take title to the property. Ms. Elisheva inquired about the creation of an easement on the property that they purchase for wetlands that they would pay for. Member James responded that they would have to discuss this with staff, but the concern still is in working with another entity is it holding the Trust Group up in moving their properties forward. There were no further public or committee comments. No action taken. Public Presentations 11. None. Trust Group Member Announcements or Reports 12. None. CLOSED SESSION. 13. None. ADJOURN The next meeting was scheduled to September 17, 2009, at 10:00 a.m. There being no further business the meeting was adjourned at 11:31 a.m. Dana Cornelius, Recording Secretary Jennie Eng, Trust Group Administrator Metropolitan Bakersfield Habitat Conservation Plan