1. Programmatic HCPs, Wetland
Permitting, and In-Lieu Fee Programs:
Is Integration Possible?
California Wetlands Conference
San Francisco, CA
March 3, 2016
David Zippin, PhD
Vice President and Practice Leader for Habitat
Conservation Planning and Implementation
ICF International
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Presentation Outline
HCP and NCCP Overview
CWA General Permits: Background
CWA In-Lieu Fee Programs
Status of HCP/Wetlands Integration in Northern
California
The Next Frontiers
Q&A
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What are HCPs and NCCPs?
Habitat Conservation Plan
– Required for Section 10(a)(1)(B) Incidental Take Permit under Endangered Species Act
– Permits issued by
• U.S. Fish and Wildlife Service and/or
• National Marine Fisheries Service
– Requires: minimize and mitigate to maximum extent practicable
– Covers non-federal and federal projects (Section 7 consultations)
Natural Community Conservation Plan
– Voluntary approach to comply with CA Endangered Species Act (CESA)
– Permit issued by CA Department of Fish and Wildlife (formerly CDFG)
– Requires: “conservation” in plan area (= contribute to recovery)
HCP AND NCCP OVERVIEW
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Permit(s) issued to local agencies or JPA
(county, city, water agency, special district)
Take authorization
for private projects under
agency jurisdiction
Take authorization
for agency
projects and O&M
Programmatic HCPs and NCCPs: How they Work
HCP AND NCCP OVERVIEW
Endangered Species Permits
from USFWS and/or NMFS and CDFW
Development
Review
Process
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HCPs and NCCPs: More Than Endangered Species Plans
Many address “CEQA species”
– Species not covered by permits
– Streamlines biological resources compliance
Combine with Federal Wetlands Regulations
– Clean Water Act Section 404
– In-lieu fee program
Combine with State Stream/Wetlands Regulations
– Sect. 1602 Streambed Alteration Agreements
– State Water Board 401 Certification
HCP AND NCCP OVERVIEW
6. Approved Federal Conservation Plans Nationally
(February 2016)
Habitat Conservation
Plans
705 HCPs
826 ITPs
Candidate Conservation
Agreements with
Assurances (CCAAs)
34 CCAAs
Safe Harbor
Agreements (SHAs)
89 SHAs
Total land covered in HCPs over 50 million acres (50% of CA)
CA has most regional HCPs approved and in process in U.S.
Sacramento field office is busiest in U.S.
Data online at http://ecos.fws.gov/conserv_plans/public.jsp
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Clean Water Act Section 404: General Permits
Activities substantially similar in nature across country or region
Cause only minimal individual and cumulative environmental impacts
Avoid unnecessary duplication of regulatory control by another federal, state,
or local agency
General Permits – Nationwide (NWP)
General Permits – Regional
(RGP)
General Permits –
Programmatic (PGP)
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Clean Water Act Section 404: General Permits
General Permits – Nationwide: 52 NWPs
General Permits – Regional
(RGP)
General Permits –
Programmatic (PGP)
Sacramento District: 12 Active
San Francisco District: 10 Active
Sacramento District: 1 Active
San Francisco District: None
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Why Develop an RGP or PGP for a Programmatic HCP?
Impact Thresholds
• Higher impact thresholds than NWP?
Processing Timelines
• Greater likelihood of 45 day reviews
Linkage to HCP/NCCP
• Limits risk of mitigation beyond HCP/NCCP
• Higher conservation benefit
NMFS Streamlining
• Automatic “Not likely to adversely affect” finding for some activities
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RGP/PGP and Mitigation
Regional General Permit
Programmatic General
Permit
Permittee-
Responsible
Mitigation
Permittee-
Responsible
Mitigation
Permittee-
Responsible
Mitigation
Permittee-
Responsible
Mitigation
Mitigation Bank
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RGP/PGP Mitigation for Programmatic HCP and NCCP
Regional General Permit
Programmatic General
Permit
Local
Mitigation
Program
Programmatic
Habitat
Conservation Plan or
Natural Community
Conservation Plan
species
In-Lieu Fee
Program
wetlands
Mitigation
Banks
Interim Mitigation Strategy
(as Permittee-Responsible
Mitigation)
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In-Lieu Fee Programs for Waters of the US
Mitigation Rule favors mitigation banks and ILF programs over permittee-
responsible mitigation (33 CFR 332.3 (b))
Provides alternative to permittee-responsible compensatory mitigation
Permittee pays fee to third party (gov’t or non-profit) who compensates for loss
of waters through preservation, restoration, enhancement, or combination
Prospectus developed with Corps, followed by Instrument
Legal Authority: Compensatory Mitigation for Losses of Aquatic Resources
2008 (33 CFR 325 and 332)
HCPS AND NCCPS ARE PUBLIC MITIGATION BANKS
ILF Programs in U.S.
Approved: 55 (6 in CA)
Pending: 15 (7 in CA)
(1,550 approved
mitigation banks)
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Status in Northern California
• East Contra Costa County HCP/NCCP
• Santa Clara Valley HCP/NCCP
• Placer County HCP/NCCP
• Butte County HCP/NCCP
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East Contra Costa County HCP/NCCP
Approved by local agencies in 2006;
Permits in 2007
Covers urban development,
rural infrastructure in County, 4 cities
Covers 25 species
Implementation began in 2008 by
East Contra Costa County Habitat
Conservancy (a JPA)
Clean Water Act Sect. 404
Regional General Permit in 2012
In-Lieu Fee Program Pending with Corps
www.cocohcp.org
EXAMPLES
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Santa Clara Valley Habitat Plan (an HCP/NCCP)
Approved in January 2013
520,000-acre plan area
Covers 18 species
Covers urban development,
rural infrastructure for:
– County and 3 cities
– Local water district
– Local transportation agency
CWA 404 Regional General Permit
approved in January 2016
Pursuing In-lieu Fee Program
www.scv-habitatagency.org
EXAMPLES
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Santa Clara Valley Habitat Plan RGP
17 activities covered (also covered
by HCP/NCCP)
5-year term
Project limits are same or less than
Nationwide Program
Streamlined processing time = 45
days
Avoidance/minimization measures
consistent with HCP/NCCP
NLAA finding and concurrence letter
from NMFS
Sets stage for programmatic 401
certification with Board
(“program 401 permit”)
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Placer County Conservation Plan (PCCP)
Pursuing Programmatic General
Permit (County-run)
Pursuing In-lieu Fee Program
consistent with HCP/NCCP
Large Specific Plan is driving need
for ILF to occur first
Translates PCCP into
– ILF Program Operation
– Compensation Planning Framework
County will be ILF Program Sponsor
until PCCP is approved
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Butte Regional Conservation Plan (HCP/NCCP) RGP and ILF
Draft RGP released Nov. 2015
Working with Interagency Review Team
(IRT) to develop In-lieu Fee Program to
tie wetland permitting to BRCP
Translates BRCP into
– ILF Program Operation
– Compensation Planning Framework
Butte County Association of
Governments will be sponsor
Future goals: Programmatic 401
Certification + Master Streambed
Alteration Agreement(s)
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Next Frontiers in Wetland Permitting Integration
Clean Water Act Section 401 Certifications
– Program 401 permits to accompany RGPs
– Based largely on RGP
– Issue: CEQA compliance for Water Board(s) through NCCP EIR
– Issue: Multiple Water Board jurisdictions
CA Fish and Game Code Sect. 1602 jurisdictional lakes and streams
– Routine Maintenance Agreements
– Master Streambed Alteration Agreements
– Issue: MSAAs must be issued to entity performing activities
– Issue: CEQA compliance for CDFW through NCCP EIR
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Species and Wetland Permits: Integration Goal
Pay One Fee for One Mitigation Program
Corps/
Board
IMAGINE A FUTURE….
