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HomeMy WebLinkAbout8.5 Whipsnake CITY CLERK File # 0530-90 AGENDA STATEMENT CITY COUNCIL MEETING DATE: April '18, 2000 SUBJECT: Comment letter on the proposed Designation of Critical Habitat for the Threatened Alameda Whipsnake Report Prepared by.~De?nis Carrington, Senior Planner/Zoning Administrator ATTACHMENTS: Resolution authorizing the comment letter on proposed Designation of Critical Habitat for the Threatened Alameda Whipsnake Comment letter on proposed Designation of Critical Habitat for the Threatened Alameda Whipsnake Map of proposed habitat impacting Dublin RECOMMENDATION: Adopt Resolution authorizing the comment letter on proposed Designation of Critical Habitat for the Threatened Alameda Whipsnake FINANCIAL STATEMENT: None DESCRIPTION: The U.S. Fish and Wildlife Service (USW&WS) is proposing to designate Critical Habitat for the Threatened Alameda Whipsnake (AWS). The habitat consists of 406,708 acres in seven geographic areas located in Alameda, Contra Costa, Santa Clara and San Joaquin counties. The area within the City of Dublin impacted by the proposed habitat would lie immediately west of the urbanized area of the City (see Attachment 3) and would include Schaefer Ranch, open space within Hansen Ranch and open space between Bloomington Way and Creekside Drive. The Endangered Species Act is triggered if a Federal agency must grant a permit for an action where a threatened or endangered species may exist. The most probable way privately held lands in Dublin would be impacted by the Critical Habitat designation would be if a Federal Clean Water Act section 404 permit were required for their development. Other types of Federal actions that could trigger review under the Endangered Species act are Federal participation in a project such as funding and regulation of new road construction by the Federal Highways Administration and funding of low-interest loans to facilitate the construction of low-income housing by the Department of Housing and Urban Development. The only project in the City of Dublin subject to a Federal permit in the proposed AWS critical habitat is Schaefer Ranch which is applying for a section 404 permit. BACKGROUND: Listing. The Alameda Whipsnake was listed as a federally threatened species in December 1997. The listing of a species as threatened provides certain protections. The Endangered Species Act forbids the import, export, or interstate or foreign sale of protected animals and plants without a special permit. It COPIES TO: USF&WS File ITEM NO. also makes "take" illegal forbidding the killing, harming, harassing, possessing, or removing of protected animals from the wild. Federal agencies must also consult with the USF&WS to conserve the listed species on their lands and to ensure that any activity they fund, authorize, or carry out will not jeopardize the survival of a listed species. Incidental take permits may be granted during the course of certain otherwise lawful activities like clearing combustible vegetation adjacent urbanized areas. This type of permit is only allowed after the creation of an extensive Habitat Conservation Plan. In addition, the Endangered Species Act requires that Federal agencies not only take action to prevent further loss of a species, but also pursue actions to recover species to the point where they no longer require protection and can be delisted. Settlement Agreement. Critical Habitat is being proposed for the AWS because of a March 1999 settlement agreement agreed to by the USF&WS and the Center for Biological Diversity and Christians Caring for Creation. The agreement settles a lawsuit against the USF&WS for failure to designate critical habitat for seven species, among them, the AWS. Comment requested. The USF&WS requests comments on the proposed designation of critical habitat by May 8, 2000. If a public hearing is requested, any request must be received before April 24, 2000. ANALYSIS: Critical Habitat. The USF&WS states that the purpose for designating critical habitat is to delineate areas that are essential for the conservation of a threatened or endangered species and which may require special management considerations. These areas do not necessarily have to be occupied by the species at the time of designation. The USF&WS says that the designation of critical habitat conveys no more protection than the listing of a given species. Experience of staff and the City's biological consultants LSA Associates indicate that the Critical Habitat designation, once adopted, establishes an implication that the habitat is occupied by a species even if it is not present. The USF&WS states on page 12164 of the Federal Register that "The areas proposed for critical habitat are currently occupied by the Alameda Whipsnake". Once an area is designated as Critical Habitat there is no turning back. The designation allows the USF&WS to bargain with developers to extract mitigation or influence project design even when the species is not present and/or the required habitat "Primary Constituent Elements" are missing. Primary Constituent Elements for the AWS provide fog foraging, sheltering, breeding and maturation of a species. These include scrub (mixed chaparral, chamise-redshank chaparral and coastal scrub), and annual grassland and oak woodlands that lie adjacent to scrub habitats. In addition, the primary constituent elements for the AWS may be found in grasslands and oak woodlands that are linked to scrub habitats by substantial rock outcrops or riparian corridors. When an area is designated a critical habitat for a species the developability of the property is severely compromised, even if the primary constituent elements are not present or of marginal quality and if the species itself is not present. Why was a portion of Dublin included in critical habitat? Dublin lies at the extreme southeast extent if the Oakland-Las Trampas Unit (See Attachment 3). The habitat was drawn to the western extent of urban uses in Dublin. It can be presumed that the USF&WS is seeking to maximize potential habitat for the AWS. Even if land is not completely suitable habitat, the USF&WS would like to see it become so in the future if plant communities change. Quality of habitat for AWS in Dublin. LSA Associates, a biological consulting firm, has performed several protocol trapping studies for the AWS on Schaefer Ranch using USF&WS established procedures. No AWS were found on Schaefer Ranch. Malcolm Sproul of LSA has told Staff that no scrub habitat exists on Schaefer Ranch. The main plant communities are grasses that are only marginally beneficial for the AWS. As stated above, grasslands are only valuable in terms of primary constituent elements if they 2 are linked to scrub habitats by substantial rock outcrops. There are rock outcrops on Schaefer Ranch, but they do not connect grasslands to scrub habitat. Scrub habitat does not exist on Schaefer Ranch. The AWS'is not present, or likely to be, on Schaefer Ranch. Schaefer Ranch is not critical habitat for the AWS and should be deleted from the USF&WS proposed Designation of Critical Habitat. Economic Analysis. An Executive Order requires that Federal rules not have an annual economic impact of $100,000,000 or more or adversely affect an economic sector, productivity, jobs, the environment, or other units of government. The USF&WS has concluded that the designation of critical habitat will not have an economic impact beyond the above figure because of existing protections granted by the listing of the species that already have an economic impact. This conclusion assumes that the designation of the areas proposed for critical habitat "are currently occupied by the Alameda Whipsnake" and therefore already protected will not have an incremental economic impact beyond the 1997 listing. The City believes that the presumption that all areas designated critical habitat is "occupied", even when the habitat and species are not present according to a highly respected biologist, will compromise the developability of lands so designated. This proposed action could very well prevent the development of Schaefer Ranch with an economic impact on the City of Dublin well in excess of $100,000,000. The 466 home project with a commercial district has a value of at least $300,000,000. The inclusion of multiplier effects on the local and regional economies could result in a negative economic impact many times that amount. CONCLUSION The designation of Critical Habitat for Schaefer Ranch is not appropriate because the habitat necessary for the Alameda Whipsnake does not exist on Schaefer Ranch. The designation would have a potential negative economic impact to the City of more than $100,000,000 in total value if the project is not constructed. The areas in Dublin that are not suitable habitat should not be burdened with that designation. The USF&WS should delete the areas in Dublin that are not suitable habitat for the AWS from the proposed delineation of critical habitat. A letter to that effect and requesting a public hearing should be sent to the USF&WS. RECOMMENDATION Staff recommends that the City Council Adopt a resolution authorizing the comment letter (Attachment 2) on proposed Designation of Critical Habitat for the Threatened Alameda Whipsnake. (g: Endangered Species Act/Alameda Whip Snake RESOLUTION NO. xx - 00 A RESOLUTION OF THE CITY COUNCI~ OF THE CITY OF DUBLIN AUTHORIZING A COMMENT LETTER ON THE PROPOSED DESIGNATION OF PORTIONS OF THE CITY OF DUBLIN AS CRITICAL HABITAT FOR THE THREATENED ALAMEDA WHIPSNAKE WHEREAS, the United States Fish and Wildlife Service is proposing to designate portions of the City of Dublin including Schaefer Ranch and open space lands surrounded by urban uses in the City of Dublin as Critical Habitat for the Threatened Alameda Whipsnake; and WHEREAS, the Alameda Whipsnake was listed as a federally threatened species in December 1997; and WHEREAS, the designation of Critical Habitat is intended to protect habitat that is essential to the conservation of the species; and WHEREAS, Critical Habitat is intended to be applied where the primary constituent elements of habitat such a scrub habitat, chamise-redshank chaparral, coastal scrub, and annual grassland and oak woodlands that lie adjacent to scrub habitats exist, and WHEREAS, the primary constituent elements of habitat necessary for the Alameda Whipsnake are not present on the Schaefer Ranch property and open space lands surrounded by urban uses in the City of Dublin as determined by LSA Associates; and WHEREAS, annual grassland is the primary habitat type on Schaefer Ranch and in the open space areas surrounded by urbanized uses in the City of Dublin proposed to be designated as Critical Habitat for the Alameda Whipsnake and is likely to remain that way in the future; and WHEREAS, the proposed critical habitat is not a corridor linking actual habitat for the Alameda Whipsnake to other nearby actual habitat and the areas in Dublin that are proposed for designation as critical habitat are at the extreme southeast extent of the proposed Oakland-Las Trampas Unit and do not provide linkages to other Alameda Whipsnake habitat areas; and WHEREAS, LSA associates has performed several protocol trapping studies for the Alameda Whipsnake on Schaefer Ranch using procedures established by the USF&WS and no Alameda Whipsnakes were found on the site; and WHEREAS, if no Alameda Whipsnake are found on Schaefer Ranch, it is less likely that they would be found in open space areas in suburban neighborhoods in the city; and WHEREAS, the economic impacts of the designation on the City exceed $100,000,000; and WHEREAS, it is estimated that Schaefer Ranch has a value in excess of $300,000,000 and the value to the City far exceeds that amount due to the economic multiplier effect; and ATTACHMENT 1 WHEREAS, the proposed Federal rule establishing the critical habitat for the Alameda Whipsnake states that it is assumed that all of the designated habitat is occupied by the Alameda Whipsnake, however, field evidence from a professional biologist shows that the areas proposed to be designated as critical habitat for the Alameda Whipsnake in Dublin are not occupied, are not likely to be occupied, and do not contain the primary constituent elements for the Alameda Whipsnake; and WHEREAS, any project in this area would be subject to mitigation measures and/or design constraints that would eliminate the economic value of the project; and WItEREAS, the loss of this project due to its designation as critical habitat would have significant negative regional and local economic effects; and WHEREAS, the loss of the Schaefer Ranch project would result in the loss of a significant portion of the regional riding and hiking trail running through the hills of the East Bay and of a hiking and tiding staging area. NOW, THEREFORE, BE IT RESOLVED THAT THE Dublin City Council does hereby authorize the City Manager to send a letter to the United States Fish and Wildlife Service requesting that lands within the City within Schaefer Ranch and in open space areas within the urbanized area of the City not be designated as Critical Habitat for the Alameda Whipsnake and further requesting that a public hearing be held on the determination of Critical Habitat for the Alameda Whipsnake and that the City be directly notified of such public heating. PASSED, APPROVED AND ADOPTED this 18th day of April, 2000. AYES: NOES: ABSENT: ABSTAIN: ATTEST: Mayor City Clerk g:ESA/AWS CCRESO K2/G/4-18-00/reso-whipsnake.doc (Item 8.5) CITY OF DUBLIN P.O. Box 2340, Dublin, California 94568 · City Offices, 100 Civic Plaza, Dublin, California 94568 April 18, 2000 Mr. Wayne S. White Field Supervisor U.S. Fish and Wildlife Service 2800 Cottage Way Suite W-2605 Sacramento, CA 95825 SUBJECT: Notice of Proposed Designation of Critical Habitat for the Threatened Alameda Whipsnake (Masticophis lateralis euryxanthus) Dear Mr. White: This letter is in response to the proposal of the U.S. Fish and Wildlife Service (USF&WS) to designate Critical Habitat for the Alameda Whipsnake. The U.S. Fish and Wildlife Service is proposing to designate 205,116 acres of land in Alameda County as Critical Habitat for the Alameda Whipsnake. A portion of this acreage applies to the City of Dublin including Schaefer Ranch and open space areas of two developments in the urbanized part of the city. The designation of Schaefer Ranch and open spaces within the City of Dublin as Critical Habitat for the Alameda Whipsnake is'not appropriate for several reasons. These areas should not be determined to be critical habitat for the Alameda Whipsnake (AWS) because: The primary constituent elements required by the AWS are not present. These include scrub communities, mixed chaparral, chamise-redshank chaparral, coastal scrub, and annual grassland and oak woodlands that lie adjacent to scrub habitats. In addition grasslands and various oak woodlands that are linked to scrub habitats by substantial rock outcrops and riparian corridors can be considered to be primary constituent elements. LSA associates has studied Schaefer Ranch extensively and has determined that no scrub habitat exists on the site. Grasslands exist on the site but not in conjunction with any scrub habitat or rock outcrops linking them to scrub habitats. The open space areas in the urbanized portions of the city are grasslands and are far from any scrub habitat. Annual grassland is the primary habitat type on Schaefer Ranch and in the open space areas surrounded by urbanized uses in the City of Dublin and is likely to remain that way in the future. The proposed critical habitat is not a corridor linking actual habitat for the AWS to other nearby actual habitat. The areas in Dublin that are proposed for designation as critical habitat are at the extreme southeast extent of the proposed Oakland-Las Trampas Unit and do not provide linkages to other AWS habitat areas. Administration (925)833-6650 · City Council (925)833-6605 · Finance (925)833-6640 o Building Inspection (925)833-6620 Code Enforcement (925) 833-6620 · Engineering (925) 833-6630 · Parks & Community Services (925) 833-6645 Economic Development (925) 833-6650 · Police (925) 833-6670 · Public Works (925) 833-6630 Community Development (925) 833-6610 · Fire Prevention Bureau (925) 833-6606 ATTACHMENT 2 No AWS exist on the Schaefer Ranch site. LSA associates has performed several protocol trapping studies for the AWS on Schaefer Ranch using procedures established by the USF&WS, No AWS were found on the site. If no AWS are found on Schaefer Ranch, which is much closer to wildland areas, it is less likely that they would be found in open space areas in suburban neighborhoods in the city. o The economic impacts of the designation on the City exceed $100,000,000. It is estimated that Schaefer Ranch has a value in excess of $300,000,000. The value to the City far exceeds that amount due to the economic multiplier effect. The proposed Federal rule establishing the critical habitat for the AWS states that it is assumed that all of the designated habitat is occupied by the AWS. Any project in this area would be subject to mitigation measures and/or design constraints that would eliminate the economic value of the project. The loss of this project due to its designation as critical habitat would have significant negative regional and local economic effects. o The loss of the Schaefer Ranch project would result in the loss of a significant portion of the regional riding and hiking trail running through the hills of the East Bay and of a hiking and riding staging area. Critical habitat proposals must be based upon the best scientific and commercial data available, after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. The City of Dublin and LSA Associates can provide excellent scientific and commercial data on the areas of the City that you propose to designate as critical habitat for the Alameda Whipsnake. This data will make it abundantly clear that this area should not be so designated The City of Dublin requests that lands within the City within Schaefer Ranch and in open space areas within the urbanized area of the City not be designated as Critical Habitat for the Alameda Whipsnake. The City further requests that a public hearing be held on the determination of Critical Habitat for the Alameda Whipsnake and that the City be directly notified of such public hearing, If you have any questions please contact me at (925) 833-6650. Sincerely yours, DHC cc: USF&WS File f:plan/letters/Alameda Whipsnake Letter Richard C. Ambrose City Manager 12170 Federal Register/Vol. 65, No. 46/Wednesday, March 8, 2000/Proposed Rules Castro V~ley Miles Critical Habitat Unit 2 BILL.ING CODE Map Unit 2: Alameda and Contra Costa Counties, California. From 1992 Orthophoto quads, Mount Diablo Base Meridian, California: T. 1 N., R. 3 W., ATTAC ~MENT ~