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HomeMy WebLinkAboutAPRIL 15 MBHCP MINUTES Metropolitan Bakersfield Habitat Conservation Plan Implementation Trust Group MINUTES Agenda Item 2 April 15, 2010 at 10:05a.m. County of Kern Administrative Center Fourth Floor Hearing Room 1115 Truxtun Avenue Bakersfield, CA 93301 IMPLEMENTATION TRUST GROUP TO RECONVENE Implementation Trust Group: Jim Eggert – City of Bakersfield (Chairman) Ted James – Kern County (Secretary) Julie Vance – CDFG Advisory Member Tim Kuhn – USFWS Advisory Member Donna Carpenter – Public At-Large Advisory Member ROLL CALL: Present: Jim Eggert, Ted James, Tim Kuhn, Julie Vance, Donna Carpenter Absent: none STAFF: Bruce Divelbiss, Melanie Dunwoody, Jennie Eng, Pamela Elisheva, Cecelia Griego, Debbie Scanlan, Mitch VanWyk, Dana Cornelius * CONSENT AGENDA/OPPORTUNITY FOR PUBLIC COMMENT: * 1. APPROVE minutes for the MBHCP Implementation Trust Group meeting of January 28, 2010. * 2. APPROVE payment to Mitch Van Wyk of an amount not to exceed $3,360 for the purchase of a one-year subscription to MetroScan Online property databases for Kern, Kings, and Tulare Counties. April 15, 2010 Minutes of MBHCP Page 2 * 3. Transmittal of Quarterly Report to the MBHCP Implementation Trust Group - RECEIVE AND FILE. * 4. APPROVE up-front payment of cleanup costs for the Samuel Baker and Virginia Reagan Cords property. * Purchase of Habitat Mitigation Land: 5. For each property listed below, staff recommendation is as follows, with the specific purchase price recommendation listed with the property below: a) APN 099-090-02 (10.545 acres) — being a portion of the NE ¼ of Section 3, T29S, R22E, MDM, County of Kern; located 3.2 miles northwest of the intersection of Highway 58 and Lokern Road, within the Lokern Preserve. The Chad and Julie Langhans property is owned by and the proposed purchase price is $11,594 to be acquired by the State of California. APPROVE ACQUISITION AT PURCHASE PRICE OF $11,594. b) APN 099-090-17 (5 acres) – being a portion of the NE ¼ of Section 3, T 29S,R 22E, MDM, County of Kern; located approximately 3.1 miles northwest of the intersection of Highway 58 and Lokern Road, within the Lokern Preserve. The DeEiel Family Trust property is owned by and the proposed purchase price is $6,000 to be acquired by the State of California. APPROVE ACQUISITION AT PURCHASE PRICE OF $6,000. c) APN 099-100-16 (5 acres) – being a portion of the NE ¼ of Section 3, T 29S,R 22E, MDM, County of Kern; located approximately 4.12 miles northwest of the intersection of Highway 58 and Lokern Road, within the Lokern Preserve. The Earthjustice property is owned by and the proposed purchase price is $5,500 to be acquired by the State of California. APPROVE ACQUISITION AT PURCHASE PRICE OF $5,500 d) APN 102-200-03 (78.34 acres) – being a portion of the NW ¼ of Section 3, T 29S,R 23E, MDM, County of Kern; located approximately 2.8 miles southeast of the intersection of Highway 58 and Lokern Road, within the Lokern Preserve. Helen Dickard Trust The property is owned by and the proposed purchase price is $86,174 to be acquired by the State of California. APPROVE ACQUISITION AT PURCHASE PRICE OF $86,174 e) APN 099-190-15 (10 acres) – being a portion of the NE ¼ of Section 11, T 29S,R 22E, MDM, County of Kern; located approximately 2.6 miles northwest of the intersection of Highway 58 and Lokern Road, within the Lokern Preserve. April 15, 2010 Minutes of MBHCP Page 3 Jacob Langhans The property is owned by and the proposed purchase price is $11,000 to be acquired by the State of California. APPROVE ACQUISITION AT PURCHASE PRICE OF $11,000 Member Carpenter inquired how often an evaluation is done on the acreage fees for mitigation. She further inquired if the quarterly report could reflect what the quarter per acre cost is to be to insure the proper fee is in place. Staff responded they could provide this. Member James moved to approve the consent calendar. Motion carried by group vote. 6. Public Presentations Presentation by Ted Wright and David Clark, representing Thomas Roads Improvement Program (TRIP) regarding projects with the MBHCP boundaries (15 minutes) Mr. Wright gave an overview of the TRIP’s projects. The first project was the Fairfax and 178 (City lead) interchange which should be completed this summer. Another project was the Seventh Standard and Highway 99 (County led) interchange which is about 99% complete. Seventh Standard Road widening project (County led) and has two parts; widening from Coffee to the Target Center and then the grade separation over the railroad at Santa Fe Way. Both of these projects are starting now. Another project led by the City is the Westside Parkway Phase I (does not have any earmark TRIP money in it, but is being managed by the TRIP program). Phase I is the extension of Mohawk from Truxtun to Rosedale is well underway with completion in 12-18 months. Phase 2 (does not have any earmark TRIP money in it, but is being managed by the TRIP program) is construction of the freeway from Mohawk to Allen Road, and is just getting underway. Projects that are in the environmental phase (PADD) with preliminary th engineering and development of the environmental document include the 24 Street th project, which is an expansion of the Oak Street intersection at 24 Street, along with th widening of 24 Street from Oak east to M Street, which increases it in the Westchester area from four lanes to six lanes, and then through the one way area in the downtown area from three lanes in each direction to four lanes in each direction. Another project is the Rosedale Highway widening from Gibson Street to at least Calloway, and probably to Allen, making it six lanes in each direction. This construction is anticipated to start in 2012. The Hageman Flyover is another project that has earmark funding and will connect Hageman Road west of State Route 99 with State Route 204 (Golden State Avenue east of 99). Currently, the City is in the process of taking over State Route 204 and Cal Trans is relinquishing State Route 204 so the project can move forward. Another project is the widening of State Route 178 in the northeast with the installation of an interchange at Morning Drive, and State Route 178 will widen from two lanes to four lanes at the old Mesa Marin site. It was pointed out that this project was not started until the TRIP program was up and going. The environmental documents should come April 15, 2010 Minutes of MBHCP Page 4 out this summer and they hope to obtain clearance by late this year. It will be funded primarily with earmark funds. Mr. Wright stated that the earmark funds have a match requirement anywhere from 11% up to 20% depending upon which federal program the earmark happens to be in. A project that Cal Trans is lead on is the Centennial Corridor (SR58 connection), pointing out that there are four alternatives to this project. One through the Westpark neighborhood, one along 99, through Sport Chalet, and then downtown paralleling the railroad tracks and then heads south at Union Avenue and connects to State Route 58 about a mile to the east. All four of these alignments are currently under consideration and they all connect to the end of the eastern end of the Westside Parkway, which is currently under construction (Phase 1, Mohawk Street; Phase 2, up to Allen Road). These all connect in to the eastern end of the Westside Parkway. David Clark, Program Environmental Manager for TRIP, spoke on the environmental impacts of the project. He indicated that all of the projects are under environmental th review including 24 Street, Rosedale, Hageman Flyover, SR178 widening and Morning Drive, as well as the Centennial Corridor. Most of the technical studies have been completed and they are now preparing the Draft EIR, and some of those are initial studies, environmental assessments, and a couple are EIR and EIS. He indicated that they are preparing the biological assessments and undergoing an informal Section 7 Consultation with U.S. Fish and Wildlife Service. He pointed at that the sensitive species affected include the San Joaquin kit fox, Bakersfield Cactus, the Blunt Nose Leopard Lizard and some other sensitive plants. Mr. Clark stated that with regard to MBHCP fees on the Westside Parkway Phase 1 and Phase 2 project, approximately $2.2 million has been paid, which does not include a Elderberry bush which was recently found, which included some additional fees. Mr. Clark also commented that future Phase 4 and 6, which will occur in the next two years, will be an additional fee of $640,000. He explained that in the areas impacted and mitigated the numbers are much higher for acres mitigated because they are paying higher ratios then is required by the MBHCP. He pointed out that because some of the projects have federal and state funding, the ratio is three to one, and therefore the larger dollar amount. Mr. Clark explained that project mitigation requirements for all of the projects include design modifications as they are trying to promote kit fox friendly-type projects. They are having permeable fencing where if kit fox get into the corridor they have access and opportunities to get outside of the corridor and not get hit. There are also openings in median barriers so they won’t get trapped. There are large culverts, as well as signage alerting the public of kit fox in the area. He also explained that they do preconstruction surveys of 60 days and two weeks. They also do continuous construction monitoring. The compensatory mitigation ratios are based on habitat quality. He explained that since the mitigation ratios vary they pay April 15, 2010 Minutes of MBHCP Page 5 3 to 1 for open grassland-type habitat, and for areas that are disturbed they pay lower and sometimes 1 to 1, or 1.1 depending on the habitat. Mr. Clark stated that currently they anticipate that all six projects listed in the slide presentation will impact about 300-400 acres, and after applying the mitigation ratios there will be a little over 1,000 acres that will have to be mitigated at a cost of approximately $2.2 million. He further pointed out that construction monitoring will result for about three years to gage the success of their program. With regard to kit fox habitat conservation, because the program will have cumulative effects on the kit fox, they will be doing something over and above by working with the Water Resources Department and the City of Bakersfield to use the City sumps and apply a conservation easement, and have a city sump habitat manager who will be trained by U.S. Fish and Wildlife Service to conduct kit fox surveys. He explained that in each of the sumps they will be installing artificial kit fox dens to promote kit fox conservation, as well as modify sump maintenance activities so it is more kit fox friendly. He explained that instead of using heavy mechanized machinery to clear vegetation out of the sumps they will do it by hand. Lastly, there will be annual reporting of monitoring progress. Mr. Clark summarized that all of the projects are for the benefit and general welfare of the public, and all of the projects are within the MBHCP boundaries, and are administered by the City in partnership with Kern County and Cal Trans. He further pointed out that all of the projects, except Centennial, will go to construction prior to the 2014 MBHCP expiration period. Mr. Clark stated that currently they are seeking approval to use the MBHCP for mitigation and seeking approval to pay the fees prior to construction start date. Member James indicated that the MBHCP functions on 3 to 1 or 1 to 1, whichever is greater, and typically it’s a 1 to 1 mitigation. He inquired if TRIP is asking this committee to be able to use the program and then the Trust Group (TG) would have a higher obligation for mitigating 3 to 1. Mr. Wright responded on Westlake Parkway when they first implemented the program they were expecting 1 to 1 and in working with the Fish and Game and U.S. Fish and Wildlife Service they imposed a 3 to 1 mitigation ratio to make it more uniform throughout the Central Valley area. He pointed out that other Cal Trans projects are 3 to 1, and because the MBHCP is the closest HCP available they worked out an agreement with their predecessor to pay the 3 to 1; the higher fees. Member James inquired who the predecessor was. Mr. Wright responded it was Stan Grady and James Movius. Member James stated that this is the first time that he has heard of this higher mitigation ratio. He inquired of staff if this matter has ever come before this group to which Member Vance responded that the mitigation ratio is higher in areas that have April 15, 2010 Minutes of MBHCP Page 6 different habitat, but for areas that they are doing 3 to 1 they are giving the equivalent fee so you don’t have to multiply. Member James inquired that if they are getting additional funds, if they are to continue to address more of the open and natural land, would it continue to be 1 to 1. Member Vance responded in the affirmative. Member James commented that this needs to be made clear with staff. He commented that his concern is that they are winding down the program as it will be up in 2014 and they have to watch funds very closely. He pointed out that the funds will be helpful in terms of an infusion, however they don’t want to have three times the obligation of acquiring habitat. Mr. Wright stated they would not. Member Vance offered that the issue is the obligation of X acres when they do their multiplication and CDFG recommended that they come before the Trust Group because there was an assumption, based on discussions with the City, that even though they have a separate permitting process through Section 7 of the Service and 2081 with Fish and Game, they could use the MBHCP as a mitigation mechanism, and they recommended it go before the Trust Group to seek approval. Member James recommended that this be memorialized in a letter. Mr. Divelbiss stated that an understanding with anybody other than the HCP does not bind the HCP and that it is not a question of whether the County or City had certain understandings, the HCP had no agreement and that would need to be proposed as a program. Member Carpenter inquired if a calculation has been done on how many acres of mitigation will need to be purchased based on the fee calculation, to which Mr. Clark responded only in the calculations presented, and would be about 300 acres. Member Carpenter inquired if they have to have the land purchased before the HCP expires to which Member Vance responded that is the question as she could not recall if this was memorialized in the HCP or if it was the desire of the Group. However, she did state that at some point prior to expiration the obligations need to be finalized. Member Vance commented that these projects are either 2013 or 2014 and the Centennial project would be beyond 2014. Member James cautioned that this program was set up on behalf of the building industry to provide for mitigation and he acknowledges that the circulation systems needed should be a part of this and they need to work together to help address the issues. He stated that his concern is that as they get closer to the end of this program, they have to mitigate for all of the grading and building permits they get. He questioned what will happen if they run out of money. He stated that he is hesitant to make a commitment today that this program will be around to use as mitigation. He pointed out that he thinks their obligation is to the building permit applicants in terms of addressing mitigation. He suggested that there be some contingencies in terms of how mitigation can happen in case they are not able to use the program in the future. April 15, 2010 Minutes of MBHCP Page 7 Mr. Wright inquired what the obligation is in 2014 if the program is not continued, and if they have to quit receiving money. Member James responded that for each building permit issued they have an obligation to mitigate or compensate for it and they have to make sure that they have money in hand in order to do that. Member Vance stated that her understanding is that with 3 to 1 you are for example paying $3,000/acre as opposed to $1,000/acre, however they are still responsible for getting three acres for that $3,000. Mitch Van Wyk, Trust Group Agent, offered that he thinks they could acquire the additional acres during this period of time and even in the last years of the agreement. He stated that it can’t be done overnight because large purchases of land are not available at this time. However there are some larger acreages that they are working on. He indicated that they hope to consummate this acreage in the next year. Member James stated that if there is economic recovery and building picks up it will be more of a challenge to acquire the land if land values go up. Mr. Van Wyk responded that it all depends on how much land values go up because if the price of land goes up they will be paying more, and the amount of acreage received will be less. He further indicated that under the current fee program he anticipates having enough to purchase. Member Carpenter commented that relative to the advance payment they could get into trouble if the economy goes up and the property values go up and questioned how the Group would purchase the property. Mr. Divelbiss said they could pay as the projects are preparing to break ground, pointing out that a condition of the project could be to pay the fee that is appropriate at that point in time, as it would be sufficient for CEQA purposes. He also confirmed that if the Group is obligated to make the payment prior to breaking ground they can buy off-setting habitat which would require thinking how far in advance about how much habitat there is to offset the groundbreaking itself. Member James also pointed out that given the current land values, their intent is to move forward and acquire as much as they can. Mr. Divelbiss said that they can evaluate it as they go along instead of committing to a specific number of acres now. Mr. Divelbiss pointed out that this is their first HCP and that they have never finished one, and questions what the expectation is to winding up. Member Vance responded that she hasn’t seen one of these to the end either. However she thought there was a cut off in accepting new obligations, and therefore she will have to check on this. She pointed out that on newer HCPs there is a cutoff and once the permit expires there is nothing about the permit that is binding on the entities any longer. Member Carpenter inquired if Staff could look into this issue. Member Eggert added he was concerned by comments made about prepaying. He indicated that this program was set up for the building industry. He stated that the building industry cannot prepay in advance and that it is usually tied with their grading permit or grading plan approval. He further stated that to make sure the Trust Group April 15, 2010 Minutes of MBHCP Page 8 treats everyone fairly; TRIP is under the same general process by not prepaying in advance when a private entity is not able to do so. He also inquired that while he read this agenda item as being a presentation, the Group was not expected to take action assuming something would be brought back for action on a later agenda. Mr. Divelbiss suggested that this be referred to Staff to receive a written proposal from the TRIP program to solicit input from the agencies as to expectations and then bring it back as a coherent action item on a subsequent agenda. He pointed out that when this was initially put together the wrap up of the program was not an intensely discussed subject and there is not a lot of documentation on their thinking. The keeping with the take is the key feature of either early termination or subsequent termination according to time. The protections of the permits should extend beyond the life of the permit so long as it is acquisition of necessary property to complete the earlier obligation. He stated he believes there is a contract in the implementing agreement that obligates the Group to do this even if the permit itself has lapsed because it protects those projects which did participate prior to the end of the program. Member James clarified that the program’s obligation is a 1 to 1 mitigation and TRIP has to pay 3 to 1. Member Vance confirmed. He inquired if there is some separate incidental take arrangement to which Member Vance responded that is why this is different because they would not be having this conversation if they were getting incidental take coverage through the HCP. However, because there is a Section 7 nexus with the Fish and Wildlife Service through Department of Transportation then federal highways not participating in HCP and they are getting a separate Section 2081permit , which includes footprints within the flood plain which are excluded from the HCP. Therefore, TRIP’s take mechanism is not the HCP but they just want to mitigate with the HCP. Member James confirmed that the request is for the HCP to acquire some 1500 acres that would be covered under the program, Mr. Clark indicated that after applying the various ratios it would be a little over a 1,030 acres. Mr. Divelbiss inquired if the TRIP program is a joint power agency between the City and the County. Mr. Wright responded that there is no formal agreement between Cal Trans, City, or County other than there are some charters and co-op agreements with Cal Trans. He pointed out that there is no legal entity or joint powers. Mr. Divelbiss pointed out that this issue is outside of HCP’s powers and they don’t have the ability to accommodate this under the terms of these agreements. However, the HCP as a joint powers agency could contract the lead agency for whatever specific project it is to help them acquire mitigation lands, and in that contract they can provide funding that would allow them to pass it through and use their abilities to acquire property to off-set their obligations under the various things. Although it would have to be clear that the permits would cover the actions. Member James also pointed out that this program specifically precluded the primary floodway as it was intended to be a biological pathway. April 15, 2010 Minutes of MBHCP Page 9 Member Carpenter inquired if there has been a change in the way that TRIP planned to mitigate. Member Vance stated that they don’t need it for the take, but they use it for mitigation. It was confirmed that they are discussing the balance of the impact for the remaining projects. Member Vance stated that the agencies have never advocated using the HCP, and that it was TRIP’s desire to use HCP. Pamela Elisheva inquired how after 2014 the take permit covers the activities in the sumps, and specifically the kit fox as there are City and County sumps. Member Vance responded that it would be under a separate permit so it wouldn’t be tied to the 2014 expiration of the MBHCP. Mr. Divelbiss stated that if they do a contract relationship with the lead agency or responsible agency on each TRIP segment they don’t have a restriction on the amount that they can contractually agree they will pay for mitigation, as they would not pay the standard fee, but rather would agree to pay the fee that it took to acquire that mitigation. Therefore, they would not be so concerned about the advance payment, but it would be an advance obligation to secure the offsetting properties timely through the program at the cost, whatever that cost might be. He pointed out that the fees are set by Ordinance under the take permits to acquire take authority. He explained that this is outside of that because it is mitigation and not take driven. If it is mitigation rather than take authority it can be done by contract between the County and the Trust Group as a joint power agency to acquire necessary offsetting 3 to 1, which would be the obligation by contract. Member James stated that his concern is that transactions costs have gone up over the years and they are having trouble finding big blocks of habitat. He inquired if they take on this additional burden if they would be creating in the remaining years of the program a challenge in meeting their obligations towards the end of the program. Mr. Wright pointed out that they will go forward with the projects and if they can’t use the HCP they will have to do other mitigation. Member Eggert inquired when they would need an obligation from the Group. Mr. Wright pointed out that they don’t have another project going to construction for about a year and-a-half. Member Carpenter inquired on the Morning Drive interchange if TRIP had paid fees, to which Mr. Wright responded that they had not done so yet on that project. It was pointed out that fees were paid on Westside Parkway to MBHCP through the City of Bakersfield. Member Carpenter requested a project-by-project break down of what’s been done and what is remaining so that it is very clear, and specifically what the request is. Staff summarized that the Trust Group Staff is expecting a letter from the TRIP group making their proposal and using the program and itemizing the particular projects that April 15, 2010 Minutes of MBHCP Page 10 have or have not been utilizing the HCP program as Member Carpenter has requested. Based on that letter, Staff will be researching a response and options available to the Trust Group and in consultation with the various agencies, County, City, and TRIP program, as well as legal counsel. In addition, separately Staff will be preparing information relating to the end of the program in consultation with what the expectations of the wildlife agencies are. Member James added that Staff will be exploring this contract that was brought up with Mr. Divelbiss. The discussion was opened up to public comment. Bob Decker with the Homeowner’s Association, commented that this was noticed as a presentation and there was no opportunity for public input in advance of the presentation to respond to the points that were made. He stated that he would like this to be agendized with an opportunity for more discussion at a later meeting to offer full input and understanding of what the real proposal is and what direction from Staff is. Mr. Decker stated that developments should be given the same opportunities provided to a public entity like TRIP as it is important in preserving the integrity of the HCP. Should there be an imbalance in public versus private projects he knows of a lot of development projects that would love to pay in advance and capture the benefits of the current HCP knowing that the HCP is looming for termination. Mr. Becker stated that he thinks they take a high risk of taking any advance payment. He further questions TRIP’s request, as it seems like the request to use the HCP is really just as a land acquisition vehicle, whereby the HCP staff and resources are utilized to acquire mitigation land. He stated that if that is it, it is not that hard to find mitigation land because you hirer a land acquisition person and they go find it. Therefore, he questioned why the HCP staff is utilized to accomplish land acquisition. Mr. Decker went on to comment that the Thomas Road Improvement Program, by the nature of the request presented, is attempting to take advantage of the current HCP and eliminate the risk of the HCP expiring, which is a real risk for all forms of development, roads, houses, commercial development in the entire process. He stated that if TRIP really wants to eliminate the risk they may want to assist in funding the formation of a new HCP. Mr. Decker stated that he agrees with the comments that the fees should be paid in advance, but shortly in advance of breaking ground on projects and that paying any earlier is inappropriate because you can’t predict when these projects are going to occur. He pointed out that those projects that Draft EIRs are just getting on the street there has not been any public input on the scope of the mitigation, and until those Final EIRs are certified, the mitigation is truly unknown for all of the projects being talked about to take pre-payment on. He pointed out that he thinks it would be important to have the full scope of public input and mitigation known before entering into any sort of agreements to mitigate on behalf of those projects. April 15, 2010 Minutes of MBHCP Page 11 Member James commented that when there is further discussion of this that the homebuilder’s group be involved in the dialogue. Member Vance clarified that there are no formal agreements regarding mitigation that can’t occur until CEQA in the form of a permit. Member James moved to accept Staff’s summarization as outlined above, along with his comment. Motion carried by group vote. 7. Update on acquisition of Te-Chuan Chang et al property (1,681.93 mitigation acres) Staff report given. No public comments. No action needed or taken. Public Presentations None. Implementation Trust Group Member Announcements or Reports Member Carpenter requested Ms. Elisheva give an update on the news regarding the Section 6 grant. Ms. Elisheva stated this doesn’t effect this Implementation Trust Group, but the Section 6 Habitat Conservation Plan Preparation Grant that was applied for through the federal government was denied. Since it is a yearly application, the plans are to reapply. The amount of the grant application was about $860,000. Member James asked for any observations with regard to the grant. Member Vance stated that they were surprised and disappointed. Annee Ferranti is going to be working to find out the details as to why the proposal was ranked the way it was, which will help for the next submittal. NO CLOSED SESSION ADJOURN Member James moved to adjourn until the next meeting on August 12, 2010, at 10:00 a.m. There being no further business the meeting was adjourned at 11:25 a.m. Dana Cornelius, Recording Secretary Jennie Eng, Trust Group Administrator Metropolitan Bakersfield Habitat Conservation Plan