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PUBLIC SCOPING SR-241 TOLL ROAD EXTENSION OSO PARKWAY TO SD COUNTY LINE


COMMENT IN OPPOSITION - Part 6


I SUPPORT THE NO BUILD OPTION OF SR 241 SOUTH OF OSO PARKWAY

VIOLATION OF NEPA: LETTER TO WILDLIFE AGENCIES REQUESTING TO RE-EVALUATE AND REVOKE SPL-1999-16236 

AND

LOP FOR MINOR AMENDMENTT OF "F" STREET  


Date: January 10, 2019

Dawn Urbanek, San Clemente Resident
Taxpayer and Student Advocate Capistrano Unified School District 

PUBLIC SCOPING COMMENT PART 6 DOCUMENTATION

 

PART 1 | PART 2 | PART 3 | PART 3 CONTINUED | PART 4 | PART 5 | PART 6 | 

 

City of San Clemente
100 Avenida Presidio
San Clemente, CA 92672
(949) 361-8200
Mayor Pro Tem Dan Bane 
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Council Members:
Laura Ferguson
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Chris Hamm       
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Gene James
Kathleen Ward     
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OC Board of Supervisors
333 W. Santa Ana Blvd.,
Santa Ana, CA 92701
(714) 834-3550
Lisa Bartlett
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Michelle Steel
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Andrew Do
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Donald P. Wagner
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Doug Chaffee
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Senator Pat Bates
24031 El Toro Road,
Suite 201A
Laguna Hills, CA 92653
Phone: 949.598.5850
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Assemblyman Bill Brough
29122 Rancho Viejo Road,
Suite 111,
San Juan Capistrano CA 92675
(949) 347-7301
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Toks Omishakin
Director CalTrans 
1120 N Street
Sacramento, CA 95814
(916) 657-5060  This email address is being protected from spambots. You need JavaScript enabled to view it.

Caltrans District 12 
1750 East 4th Street,
Suite 100
Santa Ana CA 92705
(657) 328-6000


Attn: Env/SCTRE Scoping
Ryan Chamberlain, Director
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TCA
125 Pacifica,
Irvine, CA 92618
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Rancho Mission Viejo
28811 Ortega Hwy.
San Juan Capistrano, CA 92675
Laura Coley Eisenberg, Senior Vice President—Open Space Resource Management
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OCTA
550 S. Main Street
Orange, CA 92868
Darrell E. Johnson, Chief Executive Officer  This email address is being protected from spambots. You need JavaScript enabled to view it.

California Regional Water Quality Control Board
San Diego Region
2375 Northside Drive,
Suite 100
San Diego, Ca. 92018
(619) 516-1990
David Gibson
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California Regional Water Quality Control Board
Los Angeles Region
320 West Fourth Street, Suite 200
Los Angeles, CA 90013
Phone: (213) 576-6600
Deborah Smith
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US Fish & Wildlife
Carlsbad Fish and Wildlife
2177 Salk Avenue, Suite 250
Carlsbad, California 92008
Phone: 760- 431-9440 X 307
Jonathan Snyder, Division Chief,
Los Angeles and Orange counties
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California Department of Fish and Wildlife
1416 9th St 12th Floor,
Sacramento, CA 95814
Director Charlton H. Bonham
(916) 653-7667
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.

U.S. Army Corps of Engineers,
Los Angeles District
Corice ("Cori") Farrar
Chief, Orange & Riverside Counties Section
South Coast Branch
Regulatory Division
This email address is being protected from spambots. You need JavaScript enabled to view it. Office: 213-452-3296
Government Mobile: 213-309-4862

Capistrano Unified School District
33122 Valle Rd,
San Juan Capistrano, CA 92675
(949) 234-9200 Phone
Board of Trustees
President Gila Jones
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Vice President Martha McNicholas
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Clerk Patricia Holloway
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Board Member Krista Castellanos
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Board Member Amy Hanacek
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Board Member Jim Reardon
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Date: January 9, 2020

Dawn Urbanek, San Clemente Resident
Student and Taxpayer Advocate Capistrano Unified School District
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VIOLATION OF NEPA: 
THE ENDANGERED SPECIES ACT AND THE CLEAN WATER ACT

Request to Reevaluate and Revoke: 
SPL-1996-16236, and
SPL-2015-0054-GS 

SPL-1999-16236: Rancho Mission Viejo's Long Term Individual 404 Permit Associated with San Juan Creek Watershed/Western San Mateo Creek Watershed Special Area Management Plan (SAMP) and NCCP/MSAA/HCP.

SPL-2015-00054-G5: Rancho Mission Viejo's (LOP) Permit to amend the Orange County Southern Subregion Habitat Conservation Plan (SSHCP) to re-align F Street outside of the approved impact footprint for this facility between Oso Parkway and the southern development area in Planning Area (PA) 2. RMV was issued a permit (Permit) consistent with Section IO(a)(l )(B) of the Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq.), to implement Covered Activities described in the SSHCP, including F Street.

Habitat Conservation Plans are legally binding agreements between the United States Secretary of the Interior and the permit holder (Rancho Mission Viejo).

Under the (NCCP/MSAA/HCP) and (SAMP) agreements; mitigation must equal or exceed the incidental take, and the agreements require that the NCCP conserve the ecological integrity of large habitat blocks, ecosystem functions, and biological diversity

Request for Review and Possible Revocation of SPL-1999-16236 and SPL-2015-00054-G5 is made to the following agencies:

United States Department of the Interior, Fish & Wildlife Services
[FWS-OR-15B0086-15CPA0119]

Jonathan Snyder, Division Chief U.S. Fish and Wildlife Service 
2177 Salk Avenue, Suite 250
Carlsbad, CA 92008
(760) 431-9440 x307
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Karen A. Goebel Assistant Field Supervisor,
United States Department of the Interior
Ecological Services
Carlsbad Fish and Wildlife Office
2177 Salk Avenue, Suite 250
Carlsbad, California 92008
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U.S. Army Corps of Engineers Pursuant to Section 404 of the Clean Water Act
[File Number: SPL-2015-00054-GS]

Thomas J. Cavanaugh, Administrative Appeal Review Officer
U.S. Army Corps of Engineers Regulatory Division
South Pacific Division
1455 Market Street, 2052B
San Francisco California 94103-1399
Phone: (415) 503-6674 Fax: (415) 503-6646
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
SPL-1999-16236

Corice ("Cori") Farrar, Chief, Orange & Riverside Counties Section
South Coast Branch
Regulatory Division
U.S. Army Corps of Engineers, Los Angeles District
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Office: 213-452-3296
Government Mobile: 213-309-4862

Gerardo Salas, Senior Project Manager
U.S. Army Corps of Engineers
Los Angeles District
Regulatory Division
915 Wilshire Boulevard, suite 930
ATTN: Regulatory Division
Los Angeles, California 90017
Phone: 213-452-3417
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SPL-1999-16236

California Department of Fish and Wildlife Pursuant to Section 1602 of the Fish and Game Code
[Master Streambed Alteration Agreement No. 1600-2006-0438-R5]

Marilyn Fluharty
California Department of Fish and Wildlife
South Coast Region (Region 5)
Streambed Alteration Team
3883 Ruffin Road
San Diego CA 92123
858-467-4231
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Kevin Hupf
California Department of Fish and Wildlife
South Coast Region (Region 5)
Streambed Alteration Team
3883 Ruffin Road
San Diego CA 92123
858-467-4231
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San Diego Regional Water Quality Control Board Pursuant to Section 401 of the Clean Water Act
[401 Wastewater Certification No. R9-2014-0144]

David Gibson, Executive Officer
San Diego Regional Water Quality Control Board
2375 Northside Drive, Suite 100
San Diego CA 92108-2700
858-637-7137
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Darren Bradford, Engineering Scientist
San Diego Regional Water Quality Control Board
2375 Northside Drive, Suite 100
San Diego CA 92108-2700
(619) 521-3356
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Request for the review and revocation of both permits is based on:

(1) New information which shows that Rancho Mission Viejo has failed to maintain proportionality between take and mitigation as required.

(2) New information that shows that Ranch Mission Viejo has failed to comply with specific terms and conditions contained in the permits.

(3) New information that documents that the information provided by Rancho Mission Viejo in support of LOP Permit SPL-2015-00054 may have been false, incomplete, or inaccurate, and

(4) New information; that has surfaced, that the Wildlife Services may not have considered in reaching the original Public Interest decision such as:

(a) Subdivision Map Act Violations

RMV transferred land owned by the Capistrano Unified School District into the Habitat Reserve, and into the right-of-way for original “F” Street (designated a collector road), Modified “F” Street aka Los Patrones Parkway (designated as a Free County of Orange Arterial Highway) and the Tesoro Extension of the SR 241 Toll Road which is not a covered activity within the Orange County Southern Subregion Habitat Conservation Plan. 

(SOCTIIP) is a separate project, with a separate environmental review with Caltrans as the Lead Agency for NEPA.

(b) Misuse of 401 Wastewater Certification No. R9-2014-0144

TCA/Caltrans, the County of Orange and Rancho Mission Viejo appear to be working in concert to use 401 Wastewater Certification No. R9-2014-0144 granted to Rancho Mission Viejo (a private entity) for the construction of "F" Street (a collector road for the Ranch Plan development), to build a segment of the Tesoro Extension of SR 241 from Cow Camp Road to Oso Parkway; despite five previous permit denials since 2006 by multiple entities, (San Diego Regional Water Quality Control Board, the California Coastal Commission and the United States Secretary of Commerce) stating that:

"... impacts would be permanent, irreversible, and, for the most part, unmitigable". 

"No other alternative alignment poses the threat of unmitigable and irrevocable impacts of such magnitude".

(c) The 10% shift in the alignment of the original “F” Street does not qualify as a “minor amendment” of the NCCP 

For an amendment to an NCCP to be considered as "minor" it must result in no net loss of Habitat Reserve acreage and no long-term net loss of subregional habitat value. The Ranch failed to disclose agreements between RMV, the County of Orange and the TCA/Caltrans that showed that the project actually being built was a segment of SR 241 from Oso Bridge to Cow Camp Road and that the project was being funded by the TCA and was being built to Toll Road specifications.

PERMIT APPROVAL FOR ORIGINAL "F" STREET 

(U.S.ACOE) Pursuant to Section 404 of the Clean Water Act Permit SPL-2013-00126-JPL

(SDRWQCB) Pursuant to Section 401 of the Clean Water Act No. R9- 2013-0036

(CDFG)  Pursuant to Section 1602 of the Fish and Game Code SAA  1600-2006-0438-0006- R5

PURSUANT TO A PUBLIC RECORDS REQUEST, THE FOLLOWING DOCUMENTS WERE PRODUCED BY THE USARMY CESPL ON DECEMBER 19, 2019 (new information):

FOIA 20-0027 (SPL-2015-00054 ("F" Street from "A" Street to Oso Parkway, Rancho Mission Viejo)) 

Permit Applications to: U.S.ACOE, SDRWQCB AND CDFG "F" Street, Trail/Sidewalk & Associated Utilities project dated November 21, 2014.  SPL-2015-00054-GS_404 Transmittal letter_complete.pdf 

and

Permit Number:  SPL-2015-00054-G5 issued July 16, 2015.  

The documentation provided substantial evidence that: 

Rancho Mission Viejo’s application for a (LOP) Letter of Permission Permit requesting a minor amendment of "F" Street contained material omissions and misstatements of material facts.

Rancho Mission Viejo has failed to comply with the terms and conditions of both SPL-1999-16236 (Rancho Mission Viejo's Long Term Individual 404 Permit) and SPL-2015-00054-G5 LOP Permit requesting a “Minor Amendment” to the construction of “F” Street, Trail/Sidewalk & Associated Utilities Project from “A” Street to Oso Parkway, Located on Rancho Mission Viejo, Orange County, California

1) Rancho Mission Viejo failed to comply with the terms and conditions of SPL-1999-16236 by failing to maintain proportionality between take and mitigation, and

2) The information provided by RMV in support of the application for LOP Permit SPL-2015-00054 contained material omissions and material misstatements of facts; including, but not limited to the following:

(a) The 401 Wastewater Discharge Permit R9-2014-0144; which was administratively approved by the San Diego Water Board, failed to include all of the following documents:

(i) Agreement for Grant of Fee Credits (Rancho Mission Viejo) Agreement N0. D14-034

(ii) Grant Deed to County of Orange for the Right-of-Way for SR 241 which included Parcels 1 - 91, inclusive, of Certificate of Compliance CC-2001-01 recorded July 26, 2001 and other Parcels.

(b) In its LOP Application, RMV failed to disclose that the Capistrano Unified School District owns Parcels 125-096-59, 125-096-60, 125-096-69 and 125-096-82 which were placed into the Habitat Reserve and the Right-of-Way for SR 241 by entities that did not own them and had no right to encumber them. 

(c) In its LOP Application, RMV failed to an Irrevocable Offer to Convey an option for the Capistrano Unified School District to purchase PA(2) North.

MANDATORY REVOCATION OF PERMIT

NCCP Agreements require mandatory revocation of a Section 2835 take permit if the plan participant does not maintain proportionality between take and mitigation and does not, within 45 days, remedy this condition or develop a plan in consultation with (CDFG) California Department of Fish & Game to remedy such a failure.

CDFG must also revoke a Section 2835 take permit if it determines that continued take pursuant to the permit would jeopardize a species.  

Habitat Conservation Plans are legally binding agreements between the Secretary of the Interior and the permit holder.

Under an NCCP/HCP Agreement mitigation must equal or exceed the incidental take, and an NCCP Agreement requires that an NCCP conserve the ecological integrity of large habitat blocks, ecosystem functions, and biological diversity.

It should be noted that In late 2004, the participating landowners decided to transfer the Master Stream Alteration Agreement (MSAA) to become a part of the joint NCCP/HCP becoming NCCP/MSAA/HCP while leaving the SAMP as a stand-alone project. The decision to make the MSAA a part of the NCCP/MSAA/HCP document meant that the County of Orange in cooperation with (CDFG) California Department of Fish and Game became the Lead agency under the California Environmental Quality Act (CEQA) for both the NCCP and the MSAA

[Please note a recent audit of the California Department of Fish and Wildlife dated June 27, 2019 entitled: California Department of Fish and Wildlife: It is not Fulfilling Its Responsibilities Under the California Environmental Quality Act Report Number: 2018-119]

The USACE continued to be the Lead agency under the National Environmental Policy Act (NEPA) for the SAMP document.

The Ranch Plan, the Southern NCCP and the SAMP are three separate projects with separate environmental documents. 

It should be noted that the SR 241 Toll Road is not a covered activity under the NCCP/MSAA/HCP or SAMP. 

(SOCTIIP), the Tesoro Extension of the SR 241 Toll Road is a separate project with Caltrans as the Lead Agency for NEPA.

It should also be noted The TCA has been denied a wastewater discharge permit to build SR 241 from Oso Parkway to the Orange County/San Diego county line 5 times

since 2006, by multiple entities (San Diego Regional Water Quality Control Board, the California Coastal Commission and the United States Secretary of Commerce) stating that:

"... impacts would be permanent, irreversible, and, for the most part, unmitigable". 

"No other alternative alignment poses the threat of unmitigable and irrevocable impacts of such magnitude".

 

BACKGROUND 

 

ORANGE COUNTY REGIONAL MOBILITY PLAN

In the 1970's the Orange County Board of Supervisors initiated a study for the purpose of developing an information base to revise the (MPAH) Master Plan of Arterial Highways. It was determined there was a need for a major highway facility in the Santa Ana Mountain foothills between the I-5 and SR 91 to accommodate traffic generated by existing and approved future development.

In December 1979 the Orange County Board of Supervisors adopted a Resolution to fund a study of the western most segment of the Foothill Transportation Corridor (FTC); now known as the Eastern Transportation Corridor (ETC). 

In August 1981 the Orange County Board of Supervisors added the ETC and FTC to the Orange County MPAH as conceptually proposed facilities. The Final SOCTIIP EIR/SEIR 123 was certified by the County of Orange in 1981 and resulted in a conceptual alignment for a transportation corridor facility's being placed on the County's Master Plan of Arterial Highways (MPAH). The MPAH shows the alignment of the existing FTC-N and a conceptual alignment for the FTC-S. 

State Routes 73, 133, 241 and 261 were roughly sketched onto the county's road plans.  

In 1983 Foothill Transportation Corridor Agency Certified EIR #123 and Circulation Element Amendment No. 81.1 was adopted to place the FTC and Portola Parkway on the MPAH.

Decisions on ETC segment was deferred until later. 

 

FORMATION OF TCA

Due to substantial decreases in the availability of state and federal transportation funding, it was decided that the FTC would be constructed as a toll road and added to the State Highway System. The TCA was formed in 1986 as a Joint Powers Authority to fund and construct toll roads in Orange County (not managed lanes on the I-5).

Senate Bill 1413 passed in 1987 authorizing Toll Roads in Orange County.

 

REGIONAL MOBILITY PLAN AND THE REVISION TO THE MPAH

On June 8, 1988, EIR No. 451 Eastern Transportation Cooridor (ETC) Route Location Study was certified by the Orange County Board of Supervisors.

On June 9, 1988 the TCA adopted a preferred set of route alternatives for further study.

On June 22, 1988 the Orange County Board of Supervisors adopted the same alternatives as the TCA, and directed staff to prepare an amendment to the Master Plan of Arterial Highways (MPAH).

On September 22, 1988 The MPAH was amended to reflect the adopted ETC alignments, and a Regional Mobility Plan was Adopted.

 

CODIFICATION OF SR 241 AS A TOLLED ROAD

The California Legislature establishes the framework for the state highway system by describing each route by statute, specifically, in the California Streets and Highways Code. Chapter 1363 (now codified at California Streets and Highways Code section 541) defines SR 241 as:

"Route 241 is from Route 5 south of San Clemente to Route 91 in the City of Anaheim". 

Route 241 was legislated to bypass San Clemente and connect to Route 5 in San Diego County. Neither TCA, the County of Orange or Caltrans has the authority to alter a route from its statutory alignment. Without an amendment to California Streets and Highways Code section 541, SR 241 cannot connect to Route 5 in San Clemente, the connection must be south of San Clemente (in San Diego County).

 

CAMP PENDLETON

In 1988 The Marine Corps Camp Pendleton in consultation with the TCA agreed to one potential alignment of the FTC on base subject to stipulations; including the stipulation that any toll road alignment on Camp Pendleton must not impact or interfere with the operational flexibility of the Marine Corps mission at the base.

 

TCA SELECTION OF LOCALLY-PREFERRED ALIGNMENTS

From 1989 to 1991, the TCA prepared TCA EIR No. 3, for the selection of a locally-preferred alignment for the Foothill-South. A Supplemental EIR ("SEIR") was then circulated containing changes to the "C" Alignment through San Onofre State Beach. San Clemente residents were provided an opportunity to address concerns regarding noise and visual impacts. The modified alignment around San Clemente and connecting to Route 5 south of San Clemente was dubbed the "Modified C Alignment," which was selected as the locally-preferred alternative by the TCA and is consistent with the codified route for the SR 241. The Modified C Alignment was further modified following input from the United States Fish and Wildlife Services, and the new alignment was called the "CP Alignment." The CP Alignment went around San Clemente and connected to Route 5 south of the San Clemente city limits (in San Diego County).

In November 1991, the Federal Highway Administration (FHWA), Caltrans and the F/ETCA circulated a joint DEIR/DEIS for the proposed ETC prepared pursuant to NEPA in order to be eligible for federal highway dollars.

NEPA requires compliance with the Federal Endangered Species Act and the Federal Clean Water Act. 

 

(HCP) FEDERAL ENVIRONMENTAL REVIEW

Public work projects like the SR 241 are required to receive approvals from the U.S. Department of the Interior, Fish and Wildlife Service to comply with the Federal Endangered Species Act, and a section 404 permit from the US Army Corps of Engineers to comply with the Federal Clean Water Act

An (HCP) Habitat Conservation Plan is part of a federal permitting process involving local landowners and public agencies that seek permit coverage under the Endangered Species Act for future actions affecting regional development and land use projects. The purpose of the HCP is to provide for reasonable economic development and the protection and long-term management of protected species. To the extent feasible, protected species, would be avoided and unavoidable impacts would be minimized and fully mitigated under the HCP.  This streamlines development timelines by allowing for mitigation over the entire project area rather than having to do a new EIR for each part of the project. It allows for minor amendments to projects without opening a new NEPA review. Under Section 10 of the Endangered Species Act, an (HCP) Habitat Conservation Plan is required in order to receive an Incidental Take Permit. Permit holders can proceed with an activity that is legal in all other respects, but that results in the "incidental" taking of a listed endangered species.

A Section 10 permit triggers the need to comply with NEPA with the US. Fish and Wildlife Services as the lead agency for compliance. 

Habitat Conservation Plans are legally binding agreements between the Secretary of the Interior and the permit holder.

 

(NCCP) STATE ENVIRONMENTAL REVIEW

In 1991 the California Legislature adopted the (NCCP) Natural Community Conservation Planning Act of 1991. (NCCP) is the State counterpart to the Federal (HCP) Habitat Conservation Plan. The first joint NCCP/HCP in California was the Southern California Coastal Sage Scrub NCCP/HCP created by a December 4, 1991 MOU between the (CDFG) California Department of Fish and Game and (USFWS) U.S. Department of the Interior, Fish and Wildlife Services. It was undertaken as a pilot project to develop a process for accelerated conservation planning on a regional scale that would serve as a model for other NCCP/HCPs in California and across the nation. 

NCCPs must contribute to the recovery of the species. 

Under a NCCP Agreement mitigation must equal or exceed the incidental take.

NCCPs must provide for the conservation of natural communities, as well as providing for conservation of species and their specific habitats.

The NCCP Agreement requires that a NCCP conserve the ecological integrity of large habitat blocks, ecosystem functions, and biological diversity.

The California NCCP requires a planning agreement prior to development of the Natural Community Plan.

The Federal HCPs do not require a planning agreement prior to development.

  

FORMATION OF THE ORANGE COUNTY NCCP

In 1993 a NCCP Planning Agreement was signed by the County of Orange, (CDFG) California Department of Fish & Game and participating landowners to create an NCCP for the County of Orange.

ORANGE COUNTY ENROLLMENT IN THE NCCP PROGRAM
City of Anaheim, 1992
City of Dana Point, 1992
City of Huntington Beach, 1992
City of Laguna Beach, 1992
City of Mission Viejo, 1994
City of Newport Beach, 1992                City of Orange, 1992                            City of San Clemente, 1992
City of Tustin, 1992 

City of Yorba Linda, 1995              TCA, 1992
El Toro Marine Corps Air Station (Cooperator)
Arvida/JMBI (Talega), 1992
Arvida/JMBII (Coto de Caza), 1992
Chevron USA, 1992
Irvine Company, 1992
Pacific Coast Homes, 1992

Roberts Ranch, 1992
Santa Margarita Company, 1992 Arvida/JMBII (Coto de Caza), 1992
Chevron USA, 1992
Irvine Company, 1992
Pacific Coast Homes, 1992
Roberts Ranch, 1992
Santa Margarita Company, 1992 

 

NCCP/HCP REGIONAL PLAN PILOT PROGRAM

All projects in a joint NCCP/HCP study area are required to comply with (NEPA) National Environmental Policy Act.

 

CLEAN WATER ACT (CWA) 

The (CWA) Clean Water Act is the primary federal law governing water pollution. The lead agency for the Act is the U.S. Army Corps of Engineers. Section 404 of the CWA regulates the placement of dredged or fill material into wetlands, lakes, streams, rivers, estuaries and certain other types of waters. The goal of Section 404 is to avoid and minimize losses to wetlands and other waters and to compensate for unavoidable loss through mitigation and restoration.  

Section 404 is jointly implemented by California EPA (San Diego Regional Water Quality Control Board) and the U.S. Army Corps of Engineers. The Corps issues Section 404 permits and monitors compliance with the issued permits. Both the Corps and EPA are responsible for on-site investigations and enforcement of unpermitted discharges under CWA Section 404. 

 

ENDANGERED SPECIES ACT (ESA) 

The Endangered Species Act provides a program for the conservation of threatened and endangered plants and animals, and the habitats in which they are found. The lead agency is the United States Department of the Interior, Fish and Wildlife Services and the U.S. National Oceanic and Atmospheric Administration (NOAA) Fisheries Service. 

It is the role of the Lead Agency to prepare a Biological Opinion when an action is likely to adversely affect a listed species. The conclusion of the biological opinion will state whether the Federal agency has insured that its action is not likely to jeopardize the continued existence of a listed species and/or result in the destruction or adverse modification of critical habitat

Often, an action is reasonably certain to result in the incidental take of a species, but is not likely to jeopardize its continued existence. When this happens, the Service provides the Federal agency with an incidental take statement with the biological opinion. The anticipated incidental take is not subject to the take prohibitions of the ESA as long as the Federal agency or applicant implements the terms and conditions provided in the incidental take statement.

 

INCIDENTAL TAKE PERMITS 

Incidental take permits are required when non-federal activities will result in the take of threatened or endangered species. A habitat conservation plan or “HCP” must accompany an application for an incidental take permit. The habitat conservation plan associated with the permit ensures that the effects of the authorized incidental take are adequately minimized and mitigated.

 

NCCP/HCP APPLICATION PROCESS

Development

In the development stage, parties also negotiate the terms of the agreement. In return for allowing an incidental take of a species, the parties agree to pursue specific management protections for the species.

Approval

  1. Application which requests the specified amount and rate of incidental take;
  2. The (HCP) Habitat Conservation Plan which includes the scientific information and details of the mitigation plan;
  3. An Implementation Agreement which serves as a binding contract and details how the elements of the plan will be carried out, paid for, and monitored; and
  4. National Environmental Policy Act (NEPA) documentation

Implementation

Implementing the HCP involves carrying out the prescribed mitigation actions, collecting funds, and monitoring take levels and overall species impacts

 

NCCP/HCP PERMIT REVOCATION 

NCCP Agreements require mandatory revocation of a Section 2835 take permit if the plan participant does not maintain proportionality between take and mitigation and does not, within 45 days, remedy this condition or develop a plan in consultation with (CDFG) California Department of Fish & Game to remedy such a failure.

CDFG must also revoke a Section 2835 take permit if it determines that continued take pursuant to the permit would jeopardize a species.

 

NCCP/HCP REGIONAL PLAN PROJECTS IN ORANGE COUNTY:

Southern California Coastal Sage Scrub NCCP/HCP

Orange County Transportation Authority NCCP/HCP

NOTE: TCA/Caltrans is now trying to put managed toll lanes down the I-5 which is in the purvue of the Orange County Transportation Authority. The Agencies may need to review the Orange County Transportation Authority NCCP/HCP to ensure that the TCA is not using permits granted to OCTA to construct unpermited toll roads south of Oso Parkway.

 

NEPA/CWA SECTION 404 INTEGRATION PROCESS FOR SURFACE TRANSPORTATION PROJECTS 

Under the NCCP/HCP, construction of SR 241 requires both (FHWA) Federal Highway Administration action under NEPA and an (ACOE) Army Corps of Engineers Individual Permit under section 404 of the (CWA) Clean Water Act. 

Because the construction of SR 241 required both (FHWA) Federal Highway Administration action under NEPA and (ACOE) Army Corps of Engineers individual permit under section 404 of the CWA, signatory agencies entered into a 404 MOU in 1994. The signatory agencies included (FHWA) Federal Highway Administration, (EPA) Environmental Protection Agency, (ACOE) Army Corps of Engineers, (USFWS), United States Fish and Wildlife Services, National Marine Fisheries (NMFS) and Caltrans.

Caltrans is the lead agency for NEPA compliance for the construction of the Tesoro Extension of the SR 241 Toll Road south of Oso Parkway.

 

FORMATION OF TWO SUBREGIONS OF THE ORANGE COUNTY NCCP

A Planning Agreement was signed by the County, U.S. Fish and Wildlife Services, the California Department of Fish and Game and participating landowners that created two subregions. Coastal/Central Subregion (Irvine Ranch) and Southern Subregion (Rancho Mission Viejo). 

COASTAL/CENTRAL SUBREGION

  • County of Orange
  • San Joaquin Hills Transportation Cooridor Agency, Foothill/Eastern Transportation Cooridor Agency (colectively "TCA")
  • The Irvine Company
  • Chandis - Sherman
  • Metropolitan Water District
  • Southern California Edison
  • Irvine Ranch Water District
  • Regents of the University of California
  • Santiago County Water District
  • California Department of Parks and Recreation

SOUTHERN SUBREGION

  • County of Orange,
  • San Joaquin Hills Transportation Cooridor Agency, Foothill/Eastern Transportation Cooridor Agency (colectively "TCA")
  • Santa Margarita Water District,
  • Rancho Mission Viejo, 
  • Marblehead Coastal,
  • Talega Ranch. 

RMV NEVER COMPLETED THE NCCP AGREEMENT. 

Instead, for the Development of Rancho Mission Viejo the wildlife agencies developed a special permitting process for compliance with the Federal Endangered Species Act through (NCCP/MSAA/HCP), and for the Federal Clean Water Act through a seperate (SAMP). 

 

 

(SSHCP) SOUTHERN SUBREGION (HCP) HABITAT CONSERVATION PLAN

The California NCCP requires a planning agreement prior to development of the Natural Community Plan, and requires members to conserve the ecological integrity of large habitat blocks, ecosystem functions, and biological diversity (participants must maintain proportionality between take and mitigation).

By 1996 planning had progressed to a point where several alternative reserve design concepts were being considered for the Southern Subregion of the joint NCCP/HCP Pilot Program, but no agreement on a particular reserve concept for the Southern Subregion was reached between the (USFWS) U.S Fish Wildlife Services, the California Department of Fish and Game (CDFG) and participating landowners.

During the period 1995-96, a combination of the lengthy recession and a need by RMV to re-think its estate planning resulted in the Southern Subregion NCCP/HCP program going into hiatus, a pause that lasted until the middle of 1997. During this pause in the process, RMV and the County re-considered the overall scope of the NCCP/HCP process and decided to expand the overall planning process to address aquatic resources concurrent with upland resources through preparation of a Special Area Management Plan (SAMP) under the direction of the U. S. Army Corps of Engineers (USACE) and Master Streambed Alteration Agreement (MSAA) under the direction of the California Fish and Game (CDFG) as companion pieces to the Southern Subregion of the joint NCCP/HCP.

 

(NCCP/MSAA/HCP) SOUTHERN SUBREGION NATURAL COMMUNITY CONSERVATION PLAN/MASTER STREAMBED ALTERATION AGREEMENT/HABITAT CONSERVATION PLAN (CEQ# 20060292)

The (HCP) Habitat Conservation Plan for the development of RMV is called the Southern Natural Community Conservation Plan/Master Streambed Alteration Agreement/ Habitat Conservation Plan (Southern NCCP/MSAA/HCP).

The Plan was prepared by the County of Orange in cooperation with the California Department of Fish and Game (CDFG) and the U.S. Fish and Wildlife Service (USFWS) in accordance with the provisions of the state Natural Community Conservation Planning Act of 1991 (NCCP Act), Sections 1600 et seq. of the California Fish and Game Code and the Federal Endangered Species Act (FESA).

The Southern Subregion is part of the five-county NCCP Study Area established by the state as part of the Southern California Coastal Sage Scrub NCCP Program. In addition, a Joint Programmatic Environmental Impact Report and Environmental Impact Statement (Joint EIR/EIS) that addresses the effects related to the Southern NCCP/MSAA/HCP was prepared in accordance with the California Environmental Quality Act (CEQA), and National Environmental Policy Act (NEPA).

The County of Orange is the lead agency responsible for preparation of the NCCP/MSAA and the EIR.

The USFWS is the lead agency responsible for preparation of the HCP and EIS

The USACOE is the Lead agency responsible for the preparation of the SAMP in cordination with the San Diego Regional Water Quality Control Board.  

In late 2004, the participating landowners decided to transfer the Master Stream Alteration Agreement (MSAA) to become a part of the joint NCCP/HCP becoming NCCP/MSAA/HCP while leaving the SAMP as a stand-alone Federal document. The decision to make the MSAA a part of the NCCP/MSAA/HCP document meant that the County of Orange in cooperation with (CDFG) California Department of Fish and Game became the Lead agency under California Environmental Quality Act (CEQA) for both the NCCP and the MSAA. 

The USACE continued to be the Lead agency under National Environmental Policy Act (NEPA) for the SAMP document.

The Ranch Plan, the Southern NCCP and the SAMP are three separate projects with seperate environmental documents. 

 

(SAMP) SPECIAL AREA MANAGEMENT PLAN

A special Area Management Plan is a voluntary water-shed level planning and permitting process involving landowners and public agencies that seek permit coverage under the Federal Clean Water Act Section 404 for future actions affecting jurisdictional waters of the United States (U.S). The purpose of the SAMP is to provide for reasonable economic development and the protection and long-term management of sensitive aquatic resources (biological and hydrological). To the extent feasible, Federal Waters of the U.S., including wetlands, are avoided and unavoidable impacts are minimized and fully mitigated under the SAMP. The proposed San Juan Creek and Western San Mateo Watersheds SAMP was to provide a framework for permit coverage for the San Juan Creek Watershed and the western portion of the San Mateo Creek Watershed.

The three main goals of the SAMP process are to:

1. Allow reasonable economic development through one or more proposed permitting procedures that provide regulatory predictability and incentives for comprehensive resource protection, management, and restoration over the long term.

2. On a voluntary basis, establish an aquatic resources conservation program that includes preservation, restoration, and management of aquatic resources referred to hereafter as the “Aquatic Resources Conservation Program” (ARCP).

3. Minimize individual and cumulative impacts of future projects within the SAMP watersheds by relating permitting for future activities to the SAMP Aquatic Resources Conservation Program, including studies prepared for the SAMP and the Southern Subregion Coordinated Planning Process."

Four elements of the SAMP process have been formulated to further and, to the maximum extent practicable, attain the above goals. The four primary elements of the SAMP process are reviewed in the Environmental Impact Statement (EIS) and are summarized as follows:

1. Proposed Permitting Procedures:

Three permitting procedures have been proposed as an integral part of the SAMP process. All three of the SAMP goals are addressed by the proposed permitting procedures, including:

(1) establishing permitting procedures that would provide regulatory predictability and incentives for comprehensive protection, restoration, and management of aquatic resources over the long term;

(2) provisions for preservation, restoration, and management of aquatic resources on lands presently owned or otherwise potentially managed by permittees; and

(3) minimization of individual and cumulative impacts of permitting for future activities. Regarding the latter, the EIS reviews the environmental considerations involved in: 

a) establishing permitting procedures to be authorized pursuant to a proposed Regional General Permit and a proposed long-term Individual Permit for Rancho Mission Viejo and Santa Margarita Water District (SMWD), and

(b) elements of future permitting procedures that will also require future National Environmental Policy Act (NEPA) environmental review and compliance with the Section 404(b)(1) Guidelines.

Elements 2, 3 and 4 comprise the Aquatic Resources Conservation Program

2. Aquatic Resources Restoration:

The USACE Engineer Research Development Center (ERDC) has prepared a Riparian Ecosystem Restoration Plan for San Juan and Western San Mateo Creek Watersheds to provide a broad-scale restoration template. Areaspecific restoration opportunities and measures are identified under the EIS Section 404(b)(1) Guidelines review of proposed permitting procedures. Environmental review of this element in this EIS focuses on the consistency of alternative habitat reserve designs with the restoration recommendations and the extent to which specific habitat restoration measures can provide mitigation for impacts to aquatic resources that could potentially occur in connection with the proposed permitting procedures.

3. Aquatic Resources Management:

Where applicable, management of aquatic resources would be carried out in accordance with the SAMP Aquatic Resources Adaptive Management Program (ARAMP). Adaptive management and monitoring activities would be conducted primarily in areas proposed to be protected in conjunction with proposed permitting procedures as mitigation for impacts to aquatic resources subject to USACE jurisdiction (these management and monitoring activities are described in the Aquatic Resources Adaptive Management Program reviewed in this EIS). The NEPA alternatives analysis will review the extent to which the different development/open space alternatives are consistent with habitat management recommendations set forth in the NCCP Southern Planning Guidelines and the Draft Watershed and Sub-basin Planning Principles (Watershed Planning Principles) at both a watershed- and sub-basin scale.

4. Aquatic Resources Management:

Where applicable, management of aquatic resources would be carried out in accordance with the SAMP Aquatic Resources Adaptive Management Program (ARAMP). Adaptive management and monitoring activities would be conducted primarily in areas proposed to be protected in conjunction with proposed permitting procedures as mitigation for impacts to aquatic resources subject to USACE jurisdiction (these management and monitoring activities are described in the Aquatic Resources Adaptive Management Program reviewed in this EIS). The NEPA alternatives analysis will review the extent to which the different development/open space alternatives are consistent with habitat management recommendations set forth in the NCCP Southern Planning Guidelines and the Draft Watershed and Sub-basin Planning Principles (Watershed Planning Principles) at both a watershed- and sub-basin scale. 

The USACOE SAMP Permit became effective March 23, 2007.

On January 10, 2017 U.S. Fish and Wildlife Service issued Biological Opinion FSW OR-812.8 Endangered Species Act Section 10 (a)(1)(B) Permit for the Southern Orange Natural Community Conservation Plam/Master Streambed Alteration Agreement/Habitat Conservation Agreement/Habitat Conservation Plan, Orange County, CA. The Permit Covered specific "Covered Activities" within the Ranch Plan Development. 

at page 433

"Since withdrawal of RMV from the HCP will result in the termination of SMWD’s permit, incidental take of the 32 Covered Species is not authorized for SMWD independent of participation by RMV in the HCP. In addition, if RMV withdraws from the HCP or invokes the severability clause in the Implementation Agreement, the take levels are authorized to the County of Orange only for arroyo toad, coastal California gnatcatcher, least Bells’ vireo, yellow warbler, yellow-breasted chat, and northern red-diamond rattlesnake. Lastly, each Permittee is not authorized to impact more of each habitat type than is shown in Table 6, and in accordance with the overall acreage impacts shown in Table 5." 

 

MASTER STREAMBED ALTERATION AGREEMENT (MSAA)

Rancho Mission Viejo worked closely with the (CDFW) California Department of Fish and Wildlife to develop a (MSAA) Master Streambed Alteration Agreement that ensured the protection of aquatic resources consistent with the SAMP

The MSAA was executed on September 29, 2008.

 

(SOCTIIP) SOUTH ORANGE COUNTY TRANSPORTATION INFRASTRUCTURE IMPROVEMENT PROJECT (SR 241 TOLL ROAD EXTENSION SOUTH OF OSO PARKWAY)

In April 2004 the SOCTIIP Collaborative concurred on alternatives to be carried forward and evaluated in the EIS/SEIR for construction of SR 241 south of Oso Parkway.

The following three major projects were planned in the SOCTIIP study area. The three plans were developed cooperatively but were separate projects that had separate enviornmental documents.

1) The Ranch Plan Development

The Ranch Plan project was developed in coordination with (NCCP/MSAA/HCP) and (SAMP) planning programs to ensure that the Ranch Plan project was substantially consistent with CEQA. 

In addition, a third process, the South County Outreach and Review Effort (SCORE), was developed by the County of Orange to seek input from the community on the project.

The County of Orange is the lead agency, in cooperation with the California Department of Fish and Game (CDFG), for the preparation of the Southern Subregion NCCP.

The California Department of Fish and Game (CDFG) was to oversee the compliance of RMV with the California Endangered Species Act (CESA) through the NCCP.

The California Department of Fish and Game (CDFG) was to oversee the watercourse alteration through the Master Streambed Alteration Agreement (MSAA) pursuant to Section 1600 of the CA Fish and Game Code.

The USFWS and the ACOE were engaged in a cooperative effort to oversee compliance with the Federal Endangered Species Act (ESA) through the preparation of the NCCP/HCP and the CWA through Section 404 Permit Process (33 C.F.R section 230).  

2) (NCCP/MSAA/HCP) 

The Conservation Strategy consists of:

1) Creation of a permanent Habitat Reserve;

2) Formulation and implementation of a Habitat Reserve Management Program (HRMP);

3) Receipt of State and Federal regulatory coverage and provisions for the impacts of proposed Covered Activities on proposed Covered Species and California Department of Fish and Game (CDFG) Jurisdictional Areas; and

4) Execution of an Implementation Agreement (IA) and identification of funding necessary to implement the HRMP. 

The Covered Activities consist of those lawful activities undertaken by the County of Orange, RMV, and the SMWD pursuant to the NCCP/MSAA/HCP.

3) (SAMP) Special Area Management Plan

Federal NEPA- EIS: US Army Corps of Engineers

Federal Clean Water Act (CWA:) US Army Corps of Engineers coordinating with the San Diego Regional Water Quality Control Board. 

Federal Endangered Species ActUS Army Corps of Engineers informally consulting with US Fish and Wildlife and NOAA to ensure that impacts to federally listed species would be avoided, minimized, and compensated consistent with the requirements of ESA.

 

GPA/ZC APPROVED BY ORANGE COUNTY BOARD OF SUPERVISORS

On November 8, 2004 The Orange County Board of Supervisors adopted Resolution No. 04-291, which approved a General Plan Amendment (GPA) for the Ranch Plan Planned Community Project.

In addition to obtaining local approval of the Ranch Plan, RMV also coordinated with Federal and State resource and regulatory agencies to obtain several subsequent approvals including:

  • Southern Subregion Habitat Conservation Plan (SSHCP) and associated Incidental Take Permit from the U.S. Fish and Wildlife Service, 
  • San Juan Creek and Western San Mateo Creek Special Area Management Plan (SAMP) and associated Long –Term Individual 404 Permit from the U.S. Army Corps of Engineers 
  • Master Streambed Alteration Agreement (MSAA) from the California Department of Fish and Wildlife (CDFW).

The Ranch Plan and all supporting infrastructure including “F” Street are “Covered Activities” under these regulatory approvals.

The SR 241Toll Road is not a "Covered Activity". 

SR 241 is a separate project with Caltrans as the Lead Agency for NEPA.

 

THE GREEN ALIGNMENT OF SR 241 FROM OSO PARKWAY CONNECTING TO INTERSTATE 5 SOUTH OF SAN CLEMMENTE

On February 23, 2006, and after a several year process involving numerous public hearings, the TCA Board adopted Resolution F2006-1 certifying Final Subsequent Environmental Impact Report TCA SEIR 4 ("2006 SEIR") for the SR-241 Foothill South Extension. That same day, the TCA Board also adopted Resolution F2006- 2 selecting the locally preferred alignment (the A7C-FEC-M-Initial Alternative, commonly called the ("Green Alignment") in the DEIS/SEIR for the South Orange County Transportation Infrastructure Improvement Project ("SOCTIIP") (the "2006 Approvals"). Consistent with legislative enactments and state and regional transportation plans concerning SR 241, the Green Alignment connected to Route 5 south of San Clemente near Basilone Road in San Diego County. 

SR 241 has been adopted as a state highway by Resolution of the California Transportation Commission on July 9, 1993 and August 19, 1998. SR 241 been declared to be a freeway.

SR 241 is not "F" Street (a private collector road designed to connect Cow Camp Road with Tesoro Creek Drive terminating at Oso Parkway, to function as a second entrance and exit to Tesoro High School).

SR 241 is not "Modified "F"Street aka Los Patrones Parkway (designated a FREE County Arterial Highway).

 

THE TCA WAS DENIED A 401 WATER QUALITY CERTIFICATION FOR THE CONSTRUCTION OF A TOLL ROAD SOUTH OF OSO PARKWAY BRIDGE FIVE SEPARATE TIMES BY MULTIPLE ENTITIES.

On June 13, 2006 the TCA filed application No. 06C-064 for a Clean Water Act section 401 Water Quality Certification. The application was deemed complete by the San Diego Water Board on September 13, 2006.

The TCA has been denied a wastewater discharge permit to build SR 241 from Oso Parkway to the Orange County/San Diego county line 5 times since 2006, by multiple entities (San Diego Regional Water Quality Control Board, the California Coastal Commission and the United States Secretary of Commerce) stating that:

"... impacts would be permanent, irreversible, and, for the most part, unmitigable". 

"No other alternative alignment poses the threat of unmitigable and irrevocable impacts of such magnitude".

March 16, 2015 (San Diego Regional Water Quality Control Board Tentative Order No. R9-2013-0007) was the final denial of the construction of SR 241 south of the Oso Parkway Bridge.

  

CONTINUE TO SCOPING COMMENT PART 6(a)