Chapter 1 — ENDANGERED SPECIES

For purposes of this chapter, the following words and phrases shall have the following meanings:

(a) Biological Assessment: A field survey which evaluates the quality of the habitat and assesses the presence or absence of the coastal California gnatcatcher, and which is performed in accordance with guidelines established by the U.S. Fish and Wildlife Service.

(b) Director: The Director of Planning and Development Services; or the Director of Public Works for habitat loss permits associated with grading or improvement plans reviewed by the Department of Public Works in connection with the issuance of a permit or approval.

(c) Habitat Loss Permit: A permit issued by the Director authorizing the disturbance or removal of coastal sage scrub whether or not occupied by the California gnatcatcher.

(d) Mitigation Plan: A plan proposed by the applicant for a Habitat Loss Permit which will result in no net loss of coastal sage scrub habitat value as defined by the U.S. Fish and Wildlife Service and the California Department of Fish and Wildlife and which is consistent with the NCCP Conservation Guidelines and Process Guidelines. The plan shall identify a funding source and shall provide a form of security acceptable to the Director to ensure that the plan will be accomplished.

(e) NCCP Conservation Guidelines and Process Guidelines: Those documents entitled "Southern California Coastal Sage Scrub Natural Community Conservation Planning Conservation Guidelines" and "Southern California Coastal Sage Scrub Natural Community Conservation Planning Process Guidelines," both dated November, 1993, which are on file with the Clerk of the Board of Supervisors as Document No. 758984. Said documents are referred to as the "State's NCCP Conservation and Process Guidelines" by the special rule promulgated by the U.S. Fish and Wildlife Service for the coastal California Gnatcatcher under Section 4(d) of the Endangered Species Act of 1973, published at Section 17.41(b) of Part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations.

(Added by Ord. No. 8365 (N.S.), effective 3-2-94; amended by Ord. No. 9698 (N.S.), effective 1-14-05, operative 2- 14-05; amended by Ord. No. 10224 (N.S.), effective 10-25-12; amended by Ord. No. 10705 (N.S.), effective 1-8-21)

Prior to approval or issuance of any of the following types of land development applications affecting only land located outside of that area identified as the "County of San Diego MSCP Subarea" on the map which is "Attachment A" to Ordinance No. 8845 (N.S.) of the San Diego County Board of Supervisors, (the "MSCP Biological Mitigation Ordinance"), the issuing authority shall determine whether any portion of the property subject to such permit contains the Coastal sage scrub habitat type:

(a) Grading plan approval pursuant to Section 87.204 of this Code, other than for Minor Grading pursuant to Section 87.206 of this Code;

(b) Improvement Plan submitted to the Director of Public Works in connection with any land development project; or

(c) Clearing Permit pursuant to Section 87.501 of this Code.

If the property is determined to contain the Coastal sage scrub habitat type, the land development permit or approval shall not be issued unless a Habitat Loss Permit has first been issued by the Director. If the Director is the issuing

authority for the land development permit or approval, the Habitat Loss Permit may be issued concurrently with the land development permit or approval.

(Added by Ord. No. 8365 (N.S.), effective 3-2-94; amended by Ord. No. 8380 (N.S.), effective 4-29-94; amended by Ord. No. 9547 (N.S.), effective 5-9-03)

Any governmental agency, public utility, or person who voluntarily determines to apply for a Habitat Loss Permit may submit an application for such a Permit.

(Added by Ord. No. 8365 (N.S.), effective 3-2-94)

The Director shall follow the procedures and comply with the standards set forth in the NCCP Conservation Guidelines and Process Guidelines, in processing and determining whether to issue the Habitat Loss Permit. A biological assessment and mitigation plan shall be submitted as part of the application for a Habitat Loss Permit. (Added by Ord. No. 8365 (N.S.), effective 3-2-94)

Notwithstanding Section 86.102, no Habitat Loss Permit shall be required for:

(a) Any project for which it is determined by the Board of Supervisors that application of this Ordinance would result in the applicant being deprived of all reasonable economic use of property without compensation, in violation of Federal or State Constitutional prohibitions.

(b) Any project for which the Director makes a finding with the concurrence of the U.S. Fish and Wildlife Service that:

1. A final map was approved prior to March 2, 1994 and is listed on Schedule A, attached hereto; and

2. The property is not occupied by the Coastal California gnatcatcher; and

3. Issuance of the permit referenced in Section 86.102 pursuant to the final or parcel map will not preclude the development of preserves in the future.

(c) Any project which has been issued incidental take authorizations pursuant to Section 7 or Section 10(a) of the Federal Endangered Species Act, 16 U.S.C. Section 1531 et seq.

(d) Any project located within the Multiple Species Conservation Plan Program Subarea, adopted by the Board of Supervisors on October 22, 1997, as shown on the Boundary Map attached hereto as Exhibit A.

(e) Any project which qualifies for the de minimus exemption as set forth in the direction from the U.S. Fish and Wildlife Service and the California Department of Fish and Game letter dated March 17, 2004. (Added by Ord. No. 8365 (N.S.), effective 3-2-94; amended by Ord. No. 8608 (N.S.), effective 12-15-95; amended by Ord. No. 8846 (N.S.), effective 12-5-97; amended by Ord. No. 9671 (N.S.), effective 8-13-04)

CHAPTER 2. DEFENSE AND INDEMNIFICATION FOR LAND USE DEVELOPMENT PROJECTS

On a case by case basis, where significant risk to the County is identified in connection with the processing of a discretionary land use development project, the Board of Supervisors may require a defense and indemnification agreement from the project owner and/or applicant. The agreement shall be in a form approved by the Board of Supervisors.

(Added by Ord. No. 9517 (N.S.), effective 1-3-03)

If the Board of Supervisors decides to require a defense and indemnification agreement from the project owner and/or applicant, the defense and indemnification agreement shall contain provisions and be in a standard form approved by the Board. On a case-by-case basis, the Board of Supervisors may determine to require security from the project owner and/or applicant. A determination to require security shall only be made by the Board of Supervisors, and shall not be made by any other decision maker. If the Board requires security, it shall establish the form and amount of the security, as well as the time the security is to be provided to the County. The Director of Planning and Development Services shall be authorized to execute the defense and indemnification agreement for the County of San Diego.

(Added by Ord. No. 9517 (N.S.), effective 1-3-03; amended by Ord. No. 10224 (N.S.), effective 10-25-12)

Each applicant for a discretionary land use development project ("Project"), to the extent the applicant is at fault in causing liability to the County, shall indemnify the County, its agents, officers and employees (collectively "County Parties") from any claim, action, liability or proceeding against the County Parties to attack, set aside, void or annul the Project or any of the proceedings, acts or determinations taken, done or made as a result of County's processing and/or approval of the Project, as specified below. Each applicant's obligation to indemnify shall apply to any lawsuit or challenge against the County Parties alleging failure to comply with the California Environmental Quality Act or compliance with the requirements of any other federal, state, or local laws, including but not limited to general plan and zoning requirements. This indemnification requirement shall be included in the application form provided to all Project applicants.

Each applicant's obligation to indemnify the County Parties shall include, but not be limited to, payment of all court costs and attorneys' fees, costs of any judgments or awards against the County, damages, and/or settlement costs, which arise out of County's processing and/or approval of the Project, except that an applicant shall only be responsible for indemnifying the County Parties in the amount of liability which is equal to the proportion of fault caused by the applicant, as determined by a court. Where any court action results in a ruling for the plaintiff/petitioner, the applicant and the County shall request a determination on the percentage contribution of fault from the court which adjudicated the underlying challenge to the Project.

Notwithstanding this section, when a defense and indemnification agreement is required for a Project under Section 86.201 of this Code, the provisions of the defense and indemnification agreement shall apply to the Project owner

and/or applicant and not the provisions of this section. (Added by Ord. No. 9517 (N.S.), effective 1-3-03)