Kern County Municipal Code Ch. 17.62 Habitat Conservation Plan

As used in this chapter, the following words and phrases are defined as follows:

A. "Accessory building" or "accessory structure" means a building or structure detached from a principal building on the same lot and customarily incidental and subordinate to the principal building or use.

B. "Fee assessment area" means the land within the Metropolitan Bakersfield Habitat Conservation Plan study area boundary.

C. "Habitat Conservation Plan" (HCP) means a plan prepared pursuant to the provisions of 16 U.S.C. Section 1539.

D. "Habitat management lands" means a parcel of land or an aggregation of parcels of land protected from future urban development or other disturbance, and managed as a unit for the conservation and protection of species covered by the MBHCP.

E. "Habitat Mitigation Fee" (H.M.F.) means fees established by uncodified ordinance to be paid by urban development permittees to fund the implementation trust activities including, but not limited to, the cost of land acquisition, land endowment, habitat management land improvement, public facilities mitigation, and administration of the HCP program.

F. "Implementation trust" means that body established pursuant to a Joint Powers Agreement (JPA) between the city and the county for the purpose of carrying out the provisions of the MBHCP.

G. "Known den" means a verified den site reflecting a documented history of use, either from actual observations of kit fox or from recent evidence of use and plotted on a map maintained by the implementation trust.

H. (Reserved).

I. "Natural land" means undeveloped land which has not been significantly altered by human activity. Natural land generally includes open brushland/woodland, dense brushland/woodland, scrubland, riparian areas, wetlands, ephemeral flooded land, bare ground, sand dunes, rock outcroppings, grasslands, grasslands subject to grazing, and noncrop agricultural land which has retained natural contours or has reverted back to natural vegetation. Natural land does not include former agricultural land which has been leveled or graded to facilitate irrigation or production activities, and land which has been out of production for less than five consecutive years.

J. "Oilfield development" means application and development for the purpose of petroleum extraction or enhancement of petroleum extraction.

K. "Open land" includes natural land and land which has been significantly altered by agricultural or industrial use, but which has not been substantially developed for urban uses.

L. "2081 permit" means a permit issued under the California Endangered Species Act (Fish and Game Code Section 2050-2098).

M. "Undeveloped" means land not previously occupied by a building or used for a purpose subject to H.M.F. or land for which a permit was not issued prior to the effective date of this chapter.

N. "Urban development" means a change in land use from open land to any other land use for which a permit such as a grading permit, grading plan approval, building permit or use permit is required from the county, including but not limited to, the construction of buildings on lots of record and projects undertaken directly by the county. The term does not include a change from natural land or open land to agricultural use, not does it include a change from natural land, open land, or agricultural use to oil production except for associated ancillary facilities for which the county exercises discretionary authority over the issuance of such permits or approvals pursuant to the California Environmental Quality Act.

O. "Urban development permit" means issuance of a building permit by the county for a project that would result in urban development as defined in the implementation agreement for 10a(1)(B) and 2081 permits. Where a project would ultimately result in urban development, the term "urban development permit" also means issuance of a use permit or grading plan approval, or approval of activities undertaken by a public agency including but not limited to public works construction and related activities, if applicable, by the county.

P. "Urban development permittee" means landowners and other private parties that are grading, building, or conducting other development activities within the permit area as approved by the county.

(Ord. G-5998 § 2 (part), 1993)

All those certain lands located in the city of Bakersfield and county of Kern Metropolitan Bakersfield 2010 general plan area are constituted and shall be designated as the Metropolitan Bakersfield Habitat Conservation Plan program area.

(Ord. G-5998 § 2 (part), 1993)

A. During the time the H.M.F. is in effect, prior to the issuance of any urban development permit in the Metro Bakersfield Habitat Conservation Plan program area, the county will collect an H.M.F. With respect to use permits, the H.M.F. shall be paid prior to issuance of a grading or building permit, whichever comes first. If no grading or building permit is required for the use authorized by the use permit, the H.M.F. shall be paid prior to establishment of the authorized use.

B. H.M.F. will not be required for the following:

1. Additions, remodels or reconstructions totaling not more than a fifty percent (50%) increase from the square footage of the preexisting development;

2. Mobilehome replacement;

3. Oil and gas production and extraction including accessory or incidental structures and improvements;

4. Commercial agricultural practices, uses and structures including, but not limited to, tillage, cultivating, grading, ditching, storage, stacking, barns, equipment buildings and related agricultural housing;

5. Development of any parcel for which the United States Fish and Wildlife Service and California Department of Fish and Game has approved other mitigation procedures through issuance of 2081 and 10(a)(1)(B) permits constituting full mitigation;

6. Local public projects less than ten (10) acres in size undertaken for strictly public purposes and incidental to urban growth;

7. Demolition;

8. Those projects having already paid the interim HCP fee (Ordinance G-4669) are exempt for the area covered by the previous fee payment.

C. For parcels less than two and one-half (2½) acres in size, the H.M.F. shall be calculated for the entire gross acreage of the parcel.

D. For those parcels two and one-half (2½) gross acres or larger, the H.M.F. calculation shall be on the associated disturbance but not less than two and one-half (2½) gross acres. However, if the applicant can adequately demonstrate to the county that a portion of his parcel shall not be disturbed by, but not limited to, grading, drainage, or storage, the H.M.F. will not be calculated for that portion of the parcel.

(Ord. G-5998 § 2 (part), 1993)

The Board of Supervisors shall, by uncodified ordinance, establish the fee, on a gross-acre basis, required under this chapter.

(Ord. G-5998 § 2 (part), 1993)

The county will hold H.M.F. collected by it in a separate trust for payment of habitat mitigation trust activities as identified in the MBHCP implementation/management agreement, which include but are not limited to the cost of land acquisition, land endowment, habitat management land improvement, public facilities mitigation, and administration of the HCP program. Funds shall be transferred to the implementation trust for use in implementation of the MBHCP upon request by the implementation trust.

(Ord. G-5998 § 2 (part), 1993)

A. A property owner may transfer title to land in-lieu of payment of a portion of the HMF applicable to a pre-determined area under development, if preservation of the proposed land is consistent with the habitat management land acquisition criteria set forth in subsection B., and is acceptable to the implementation trust as set forth in subsection C.

B. Land is appropriate for acquisition as all or part of habitat management lands, and may at the discretion of the implementation trust qualify in-lieu of payment of HMF, if it is (i) within one of the potential habitat management lands acquisition areas identified in the implementation/management agreement and CDFG, USFWS, The Nature Conservancy, or other habitat management entity approved by CDFG, has provided written notification to the implementation trust that they are willing to accept title and act as the management entity for said lands, or (ii) in an area determined by the implementation trust and the CDFG advisor and USFWS advisor to the implementation trust to provide benefits to one or more of the species of concern and CDFG, USFWS, The Nature Conservancy, or other habitat management entity approved by CDFG, has provided written notification to the implementation trust that they are willing to accept title and act as the management entity for said lands. Notwithstanding this section and subsection C., the transfer of title to land in-lieu of the payment of HMF shall not be included in the calculations conducted pursuant to Section 3.1.8 of the implementation/ management agreement for the purposes of determining the cumulative amount of habitat management lands unless the transferred land qualifies as habitat management lands.

C. Landowners proposing transfer of title to land in-lieu of payment of mitigation fees shall submit a petition for a transfer consistency determination to the implementation trust. The implementation trust shall be responsible for determining the completeness of the petition. The petition shall provide a description of the land proposed for transfer and, when land is not within a pre-approved area, a report prepared by a qualified biologist on the value of the land as habitat for species of concern. Additional information which may be required by the trust group includes a preliminary title report a preliminary site assessment for hazardous waste contamination, and correspondence from CDFG, USFWS, or any habitat management entity approved by CDFG and USFWS, regarding their ability and desire to accept title and management responsibilities. The petition shall be processed in accordance with the following time limits:

1. If upon review of the petition, the implementation trust finds the information provided to be inadequate for determining consistency, the trust shall, within forty-five (45) days of receipt of the petition, provide the landowner with a written statement of the additional information required. The forty-five (45) day period can be extended if both parties agree.

2. Upon receipt of an adequate petition, the implementation trust shall, within forty-five (45) days of receipt of the petition, issue a written determination with respect to the acceptability and consistency, and amount of credit of the land proposed for transfer with the habitat management lands criteria set forth in subsection B. The forty-five (45) day period can be extended if both parties agree.

3. If the implementation trust fails to make a written determination of consistency or lack of consistency within the forty-five (45) day period, the land proposed for transfer will be deemed to be acceptable and consistent with the habitat management land acquisition criteria set forth in subsection B. The forty-five (45) day period can be extended if both parties agree.

D. The implementation trust shall not accept land that does not, in its sole discretion, represent essentially the same habitat and support the same endangered plant and/or animal species as the project site requiring mitigation without the written approval of CDFG and USFWS.

E. If, in consultation with the USFWS and CDFG as advisors, the implementation trust determines that the land proposed for transfer is acceptable and consistent with the habitat management lands acquisition criteria set forth in subsection B., the transfer may be used in-lieu of payment of the portion of the mitigation fee attributable to the estimated cost of acquiring habitat management lands on an acre-per-acre basis. This means that an acre of in-lieu land may be accepted for each acre of the project requiring payment of the HMF. Only the acres sufficient to satisfy the HMF for the project shall be permitted to be transferred prior to issuance of an urban development permit. The in-lieu land and payment of the mitigation fees is not transferable to any other project. Failure to develop the project shall not result in a refund of either the in-lieu land or related fees that were previously paid. Therefore, a property owner utilizing land title transfer in-lieu of payment of the land value portion of the HMF shall pay a fee in the amount of the HMF attributable in the uncodified ordinance to the cost of fencing the habitat management lands, the cost of ensuring the management and enhancement of the habitat management lands as specified in the implementation/management agreement and the administrative costs attributable to the MBHCP program as those fees exist at time of payment. The HMF shall not be satisfied for a project until these fees are paid and a grant deed to CDFG or its designee is recorded. In instances where the implementation trust determines the land being transferred represents unique habitat values or assists in achieving specific preservation or management goals of the MBHCP, the implementation trust may choose to pay all or a portion of these fees.

(Ord. G-6955, § 4, 2003: Ord. G-5998 § 2 (part), 1993)

No later than five (5) working days prior to the initiation of any ground disturbance activities (grading start date) by an urban development permittee on parcels containing known dens, the urban development permittee shall notify the regional office of CDFG and USFWS of the intent to initiate ground disturbance activities and shall agree to permit appropriate access for salvage purposes.

Upon notification of the property owner, any person holding proper permits may remove and relocate kit fox from known dens within approved urban development permitted areas. Any person proposing to remove or relocate kit fox shall indemnify and hold harmless the property owner from and against any claims, damages or causes of action arising from such removal or relocation. An urban development permittee is not required under this agreement or the MBHCP to pay the cost of the relocation or salvage activity or be responsible for obtaining necessary permits to relocate any species of concern. If for any reason the persons responsible for relocating species of concern are unable to carry out the relocation activities prior to the grading start date, the urban development permittee may proceed to engage in the supervised destruction of known dens and otherwise initiate approved construction activities.

If the CDFG or USFWS is unable to relocate the kit foxes by the grading start date, the urban development permittee shall then be required to eliminate the known den in the manner described by the county of Kern which allows for the San Joaquin kit fox to escape the construction area prior to project grading.

The urban development permittee shall record and report to the implementation trust any sightings of San Joaquin fox during den destruction.

(Ord. G-5998 § 2 (part), 1993)

The Board of Supervisors may, from time to time, by resolution, adopt regulations for the administration and implementation of this chapter not inconsistent with it. Such regulations, and any amendments thereto, shall be adopted after a duly noticed public hearing.

(Ord. G-5998 § 2 (part), 1993)