HomeMy WebLinkAboutItem 8.5 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 ~