Chapter 18.40

HABITAT CONSERVATION PLAN

Parts:

• 1 Purpose and Adoption of Plan

• 2 Definitions

• 3 Application and Implementation

Part 1

PURPOSE AND ADOPTION OF PLAN

Sections:

• A. The purpose of this chapter is to implement the Santa Clara Valley Habitat Conservation Plan/Natural Communities Conservation Plan ("HCP/NCCP") and the associated implementing agreement and take permits, in order to provide a regulatory framework for promoting the protection and recovery of natural resources, including covered species, while streamlining the permitting process for both publicly funded and privately funded planned development in the City of San José. The HCP/ NCCP was developed by the County of Santa Clara, the Cities of Gilroy, Morgan Hill, and San José, the Santa Clara Valley Water District, and the Santa Clara Valley Transportation Authority (collectively the "local partners") in association with the U.S. Fish and Wildlife Service and the California Depart-

ment of Fish and Wildlife, and in consultation with stakeholder groups and the general public.

• B. As a result of the adoption of the HCP/NCCP by the city, the city (among the other local partners) is the recipient of long-term endangered species permits/authorized take coverage from the U.S. Fish and Wildlife Service and the California Department of Fish and Wildlife for the city's own activities and, in addition to coverage of its own public projects, the city will be able to extend authorized take coverage to private project applicants under its jurisdiction.

• C. Rather than separately permitting and mitigating individual projects, the HCP/NCCP evaluates natural resource impacts and mitigation requirements comprehensively in a manner that is more efficient and effective for at-risk species and their essential habitats. This approach will allow the city to streamline future mitigation requirements into one comprehensive program. The U.S. Fish and Wildlife Service ("USFWS") the California Department of Fish and Wildlife ("CDFW") authorized take coverage also provides assurances that no further commitments of funds, land, or water from covered public and private projects will be required to address impacts on covered species beyond that described in the HCP/NCCP to address changed circumstances, as long as the HCP/NCCP is properly implemented.

• D. In addition to strengthening local control over land use and species protection, the HCP/ NCCP provides a more efficient process for protecting natural resources by creating new habitat reserves that will be larger in scale, more ecologically valuable, and easier to manage than the individual mitigation sites created under the current approach. This more efficient and streamlined approach to obtaining authorized take coverage for both public and private projects will significantly reduce the time and resources previously required to obtain take coverage on an individual project-

T18:27

SAN JOSÉ CODE

§ 18.40.010

by-project basis. Unless an activity is deemed to be in compliance with the federal and state Endangered Species Acts by the implementing entity, as described in Chapter 6.2 of the HCP/ NCCP, all covered activities occurring within the local plan area will be subject to applicable conditions and fees described in the HCP/ NCCP.

(Ord. 29203.)

The HCP/NCCP is adopted and incorporated by reference as though fully set forth herein. Complete copies of the HCP/NCCP are available for inspection at the office of the city clerk and the department of planning, building and code enforcement.

(Ord. 29203.)

Part 2

DEFINITIONS

Sections:

18.40.210 Building permit.

18.40.220 Covered activity.

18.40.230 Covered species.

18.40.240 Habitat conservation plan/natural communities conservation plan.

18.40.250 Implementing agreement.

18.40.260 Implementing entity.

ter. Words and phrases not defined in this part shall be interpreted so as to give this chapter is most reasonable application.

(Ord. 29203.)

"Building permit" includes a full structural building permit, as well as a partial permit, such as a foundation-only permit, grading permit, or any other permit or approval for a project authorizing a ground-disturbing activity for a covered activity. (Ord. 29203.)

"Covered activity" means any activity defined in Section 2.3 of Chapter 2 of the HCP/NCCP as a covered activity and not otherwise exempted from the requirements of the HCP/NCCP. Development activity at the Norman Y. Mineta San José International Airport is not a "covered activity" defined in the HCP/NCCP as development activity at the airport, not covered by the April 30, 1997 Airport Master Plan Environmental Impact Report, including all supplements and addenda thereto, is required to comply with Federal Aviation Administration regulations regarding wildlife hazard management on and near airport property for aircraft and public safety purposes, and shall go through an independent review process with the Wildlife Agencies pursuant to the California Environmental Quality Act ("CEQA") and the National Environmental Policy Act ("NEPA"), as applicable. (Ord. 29203.)

18.40.270 Local plan area.

18.40.280 Mitigation fees.

18.40.290 Planning permit.

18.40.300 Project applicant.

18.40.310 Take.

18.40.320 Take permits.

The definitions set forth in this part shall govern the application and interpretation of this chap-

"Covered species" means the species, listed and non-listed, whose conservation and management are provided for in the HCP/NCCP and for which incidental take is authorized by the wildlife agencies pursuant to the take permits. Covered species are also listed in Exhibit A to the implementing agreement. (Ord. 29203.)

T18:28

LOCAL PLANNING

§ 18.40.310

"Habitat Conservation Plan/Natural Communities Conservation Plan" or "HCP/NCCP" means the Santa Clara Valley Habitat Conservation Plan/ Natural Communities Conservation Plan adopted by the city council on January 29, 2013, and any amendments thereto.

(Ord. 29203.)

"Implementing agreement" means that agreement made and entered into by and among the United States Fish and Wildlife Service ("USFWS") of the United States Department of the Interior, the California Department of Fish and Wildlife ("CDFW") of the State of California Natural Resources Agency, the Santa Clara Valley Habitat Agency (the "Implementing Entity"), the County of Santa Clara ("County"), the City of San José ("San José"), the City of Gilroy ("Gilroy"), the City of Morgan Hill ("Morgan Hill"), the Santa Clara Valley Water District ("Water District"), and the Santa Clara Valley Transportation Authority ("VTA") that defines the parties' respective roles and responsibilities and provides a common understanding of actions that will be undertaken to implement the HCP/NCCP.

(Ord. 29203.)

"Implementing entity" means the Santa Clara Valley Habitat Agency formed on January 29, 2013, by and among the County of Santa Clara and the cities of Gilroy, Morgan Hill, and San José pursuant to the Joint Powers Act (Government Code § 6500 et seq.).

(Ord. 29203.)

"Local plan area" means that portion of the geographic study area defined in the HCP/NCCP that lies within the corporate boundaries of the City of San José. (Ord. 29203.)

"Mitigation fees" or "fees" means any habitat plan fee(s) that applies to covered activities in the local plan area as adopted by the implementing entity in accordance with Chapter 9 of the HCP/ NCCP and the fee studies in support thereof, and any amendments to those fees, unless otherwise exempted from the fee requirements of the HCP/ NCCP by the implementing entity. (Ord. 29203.)

"Planning permit" means any discretionary permit that authorizes a ground disturbing activity for a covered activity, including, but not limited to, tentative map, parcel map, conditional use permit, site development permit, planned development permit, special use permit, or any other discretionary permit, excluding general plan amendments, zoning and rezoning, annexation, specific plans, and area development policies. The term "planning permit" also includes any building permit where no other planning permit is required. (Ord. 29203.)

"Project applicant" means any person or entity applying for a planning permit for a project authorizing a ground-disturbing activity for a covered activity, including any person or entity opting in to the HCP/NCCP pursuant to Chapter 6.2 of the HCP/NCCP.

(Ord. 29203.)

"Take" and "taking" have the same meaning provided by the Federal Endangered Species Act ("ESA") (16 U.S.C. §§ 1531-1544) and its implementing regulations with regard to activities subject to the ESA, and also have the same meaning provided in Section 86 of the California Fish and Game Code, with regard to activities subject to the California Endangered Species Act ("CESA") (Fish and

T18:29

SAN JOSÉ CODE

§ 18.40.310

Game Code § 2050 et seq.), and the California Natural Community Conservation Planning Act ("NCCPA") (Fish and Game Code §§ 2800-2835). (Ord. 29203.)

"Take permits" means the federal incidental take permit issued by USFWS to the Implementing Entity, the County, San José, Gilroy, Morgan Hill, the Water District, and VTA (collectively, "Permittees") based on the HCP/NCCP pursuant to Section 10(a)(1)(B) of the ESA, and the state incidental take permit issued by CDFW to the permittees based on the HCP/NCCP pursuant to Section 2835 of the California Fish and Game Code. (Ord. 29203.)

Part 3

APPLICATION AND IMPLEMENTATION

Sections:

All project applicants for covered activities within the local plan area shall comply with the conditions on covered activities in Chapter 6 of the HCP/NCCP. Each planning permit application for a covered activity in the local plan area shall include details of the methods and timing in which the project will comply with the HCP/NCCP in the form and manner required by the director of planning, building and code enforcement. Applicable conditions on covered activities from Chapter 6 of the HCP/NCCP as well as other measures required to implement the conservation strategy of the HCP/ NCCP shall be included in each planning permit approval for a covered activity. (Ord. 29203.)

• A. As a condition of each land use approval for a covered activity in the local plan area, the mitigation fees shall be paid in full by the private project applicant to the city no later than the date of issuance by the city of a building permit. The mitigation fees shall be paid to the implementing entity at the time of issuance of the first building permit if more than one building permit is required for the project.

• B. If the implementing entity authorizes another manner of compensation in lieu of the mitigation fees (such as a land donation in lieu of payment of the mitigation fees), the project applicant shall provide the city with written documentation from the implementing entity of compliance with such alternative manner of payment and the dollar equivalent amount of such alternative manner of compensation.

• C. In the event the city determines the project subject to the planning permit to be exempt from payment of the mitigation fees, no mitigation fees shall be required for the project.

• D. The city may collect the mitigation fees on behalf of the implementing entity if authorized to do so by the implementing entity.

• (Ord. 29203.)

Upon payment in full of the mitigation fees and approval of planning permits incorporating all applicable HCP/NCCP conditions of approval, the project applicant shall receive authorized take coverage for the covered activity in accordance with the terms of the HCP/NCCP, the implementing agreement, and the take permits. (Ord. 29203.)

The city may collect service fees from project applicants to compensate for the city's costs associated with its administration and implementation of the HCP/NCCP and related permitting process. (Ord. 29203.)

T18:30

LOCAL PLANNING

§ 18.40.460

The city manager, in conjunction with the director of planning, building and code enforcement, may adopt guidelines to assist in the implementation and administration of all aspects of this chapter.

(Ord. 29203.)

In the event of a conflict between any term or requirement of this chapter, the HCP/NCCP, the implementing agreement or the take permits, the term or requirement of the take permits shall govern.

(Ord. 29203.)

This chapter shall be operative upon adoption by the implementing entity of the mitigation fees and the issuance of the take permits by the U.S. Fish and Wildlife Service and the California Department of Fish and Wildlife. (Ord. 29203.)

T18:31