U.S. Fish and Wildlife Service comments on Minor Subdivision Application Number MS07-058 [Parcel Map Waiver] – Chris Robinson; r
Badlands is declaring the coming days a Sunshine Week to post a number of documents submitted to Merced County government in the last few months. Some of these documents have been included in the official packets of information for Board of Supervisors and Planning Commission meetings. Others have been suppressed.
This material is best understood by reference to the audio or video archives of supervisors’ and planning commission meetings and we encourage readers seriously interested in understanding their local government to go to the Merced County webpage, http://www.co.merced.ca.us/CountyWeb/, to seek out these hearings, particularly the two board of supervisors meetings on July 1 and July 8.
These are Badlands’ transcriptions from the Merced County Board of Supervisors’ July 1, 2008 packet on Minor Subdivision Application Number MS07-058 [Parcel Map Waiver] – Chris Robinson.
United States Department of the Interior
Fish and Wildlife Service
Sacramento Fish and Wildlife Office
2800 Cottage Way, Room W-2605
Sacramento CA 95825-1846
April 23, 2008 (stamped)
April 25, 2008 (stamped “received”)
Mr. Robert A. Lewis, Director
Planning and Community Development Department
County of Merced
2222 M Street
Merced California 95340
Subject: Proposed Robinson Property Projects: (1) Parcel Split (Minor Subdivision Application Number MS07-058 [Parcel Map Waiver]); (2) Sand and Gravel Extraction (Conditional Use Permit CUP 06-008; Merced County, California
Dear Mr. Lewis:
This letter is in response to your documents ( Hearing Officer Agenda/Staff Report by Mr. David Gilbert dated March 10, 2008. and  Request for Information by Ms. Oksana Newman dated March 5, 2008) that the U.S. Fish and Wildlife Service (Service) review documents regarding potential biological effects of the proposed Robinson Property Projects on federally-listed plan and animal species at a site in Merced County. Our comments are submitted pursuant to the Endangered species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act).
Our comments respond collectively to two documents submitted to the Service by the Merced County Planning and Community Development Department (County). Normally the Service would provide separate responses to the County. In this case, however, parcel 042-230-050 is referenced by a single property owner (Mr. Christopher Robinson). Given these circumstances, the Service will provide a single set of comments.
The proposed projects are located at the intersection of the Merced River and State Highway 59; on the East side of State Highway 59, beginning approximately 0.5 miles North of Youd Road, in the Snelling area [APN(s) 042-230-050, 043-070-039, and 043-100-014). IN the first instance, the project applicant proposes to subdivide a 1,027.20 acre parcel into three parcels of 198.63 acres, 343.18 acres, and 165.25 acres (plus a remainder parcel of 320.14 acres). The current land uses of the site are restored riparian habitat, an existing conservation area, row crops, and pastures. Pasture land in this geographic area can support numerous species protected under the Act, as detailed below. The Service also notes that – according to Exhibit ‘I’ – Parcel 2 is an “Existing Conservation Area” (your terminology). It is not clear, however, which species are covered or which actions precluded by this designation. We would appreciate receiving more information about this designated area, including how it is legally protected, what species or habitats it protects, who oversees it, and the most recent monitoring report. In the second instance, the project applicant proposes to extract sand and gravel from a 42 acre portion of the 321 acre parcel (220,000 cubic yards annually for at least 10 years). The current land uses are agriculture and pastures, with one residence. Upon completion of the mining project, the site would be reclaimed to oak-savanna habitat (your terminology).
Our comments are primarily based on a review of the following information: (1) Staff Report dated March 10, 2008, by Mr. David Gilbert; Parcel Split (Minor Subdivision Application Number MS07-058 [Parcel Map Waiver]); (2) Memorandum dated March 5, 2008, by Ms. Oksana Newman; Sand and Gravel Extraction (Conditional Use Permit CUP 06-008; (3) Robinson Ranch Sand Mine Reclamation Plan; Central Valley Concrete, Operator; County of Merced, January 2008; (4) Biological Resources Assessment; Robinson Ranch Mine, Merced California; Prepared by: WRA Environmental Consultants, San Rafael, California; (5) Merced River Salmon Habitat Enhancement Project and Robinson Reach Phase, Initial Study/Environmental Assessment [Assessment]; March 7, 2001; ca. 200 pp.; (6) Preliminary Results for Summer 2006 Avian and Fish Monitoring for the Merced River Alliance: A Project of the East Merced Resource Conservation District; In Cooperation with the Upper Merced Watershed Council, November 2006; Maia Singer, Stillwater Sciences, 28 pp.; (7) California Natural Diversity Database; and (8) other information available to the Service.
According to the information available to the Service, at least 18 federally- or state-listed species of plants and animals have been reported for the area (9 quad block centered on Snelling Quad; California Natural Diversity Database, 2008). Of these, the federally-listed as Threatened California tiger salamander (Ambystomo californiense). Federally-listed as Endangered vernal pool fairy shrimp (Branchinecta lynchi), federally –listed as Endangered hairy orcutt grass (Orcuttia pilosa), and federally-listed as Threatened succulent owl’s clover (Castilleja campestris ssp. Succulenta) have been reported within 5 miles of the proposed project sites (Figures 4 and 5 of the Biological Resources Assessment). Based on 2 days of field surveys (April 25, 2007 and September 6, 20078) by project biologists, the potential for presence of these species in the project area was categorized as “unlikely” or “not present” (your terminology). In addition and also according to the Biological Resources Assessment, the potential for presence of the federally-listed as Threatened valley elderberry longhorn beetle (Desmocerus californicus dimorphus) was categorized as “moderate potential,” while the federally-listed as Endangered San Joaquin kit fox (Vulpes macrotis mutica) was categorized as “unlikely.” These findings were summarized in Item 50 of the Environmental Information Form as follows: “No state or federal threatened or endangered species were identified within the project area during biological surveys (See Biological Resource Assessment).” Given the biological characteristics of the area, as well as the survey methods that were used, the Service does not accept those findings (see below).
In order for the Service to make a determination that a species does not occur at a site, we recommend as a part of the preliminary activities leading to the preparation of a biological assessment that surveys be conducted according to specific guidelines. Survey guidelines are available at http://www.fws.gov/sacramento/es/protocol.htm. There is no indication that survey authorization was requested of the Service or that these guidelines were followed for the species cited in the Biological Resources Assessment. Therefore, the Service is unable to accept the assertion made in the Biological Resources Assessment that these species do not occur at the proposed project site.
This area has also been identified by the Service as a San Joaquin Kit Fox Link Area for species recovery actions (copy of map enclosed). Kit foxes are found in grassland and scrubland communities, including areas which have been extensively modified by humans with oil exploration, wind turbines, agricultural practices and/or grazing. The kit fox population is fragmented, particularly in the northern part of the range. While the nearest reported a documented occurrence, according to California Natural Diversity Database, is about 0.75 miles south of La Grand (about 10 miles from the proposed project site), more recent information suggests that the San Joaquin kit fox may be more widely distributed in eastern Merced County than previously thought, especially in pastures and grazing lands along the foothills. Pastures and grazing lands, such as those within a few miles to the southeast of the proposed project site, frequently include vernal pools and also provide habitat for the California tiger salamander, as well as fairy shrimp and several species of plants associated with vernal pool regions.
To resolve these species presence questions at the proposed project site, the Service recommends that additional surveys be requested and completed by qualified biologists according to the specific guidelines for each of the several federally-listed species indicated above. Given the relatively high abundance of natural or restored habitat along the Merced River, the documented occurrence of many federally-listed species in the general area, the absence of through species-specific surveys in the proposed project area, and the cryptic nature of several of these species, additional surveys are indicated.
As a separate issue, the Service notes that the Merced River Salmon Habitat Enhancement Project (Robinson Reach Phase) was conducted in this area during July 2001 and February 2002. The overall goal of this project was to enhance salmon habitat and species (e.g. federally-listed as Threatened Central Valley spring-run Chinook [Oncorhynchus ishawytsha], federally-listed as Endangered Central Valley winter-run Chinook, federally-listed as Threatened Steelhead [O. mykiss; Central Valley Ecologically Significant Unit]). This was a joint project of the California Department of Fish and Game, California Department of Water Resources, and the Service. Approximately 1,000,000 tons of material was moved in reconfiguring the project site (Robinson Reach between river miles 42.1 and 44.4). In addition, more than 10,000 feet of channel was created, improved, or modified, and several ponds were eliminated (see California Department of Water Resources: Completed Projects: MRSHEP Phase III at: http://sjd.water.ca.gov/rivermanagement/Comleted/projects/robinson/index...). Based on the information available to the Service, it appears that the parcel split would extend about 10,000 feet along both sides of the portion of the Merced River that was restored, including the “existing conservation area.” In addition, it appears that the aggregate site would be less than 0.5 miles from the Merced River and the associated restoration and conservation areas. The relationship between the salmon restoration project and the two proposed projects addressed here – including any potential conflicts between sand and gravel extraction and salmon conservation goals – are not clearly analyzed in the documents submitted by the County.
The Initial Study/Environmental Assessment also reiterates the need to address more fully the several federally- and state-listed species that potentially may occur at the proposed project site. According to the Assessment, for example, at least 135 elderberry shrubs were located in the area that was restored, and apparently would be included in the area subject to the parcel split. The elderberry shrub is the obligate host plant of the federally-listed as Threatened valley elderberry longhorn beetle. Given the high likelihood of encountering special status species such as the valley elderberry longhorn beetle during project implementation, the Assessment also included 22 pages of avoidance and conservation measures, including specific measures for the federally-listed mammals, amphibians, fish, and invertebrates cited above (Appendix J). It is the Service’s opinion that the new information presented in the Biological Resources Assessment – based primarily on literature review and a 2-day field survey – does not support the finding summarized in Item 50 of the Environmental Information Form to the effect that “No state or federal threatened or endangered species were identified within the project area during biological surveys (See Biological Resources Assessment).”
If federally-listed species occur at the site and if the proposed projects are implemented as described, take may occur. Section 9 of the Act and Federal regulation pursuant to section 4 (d) of the Act prohibit take (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in any such conduct) of listed species of fish or wildlife without a special exemption. Harass is defined as an intentional or negligent act that creates the likelihood of injury to a listed species by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Harm is defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing behavioral patterns such as breeding, feeding, or sheltering.
In this case, the potential for take of federally-listed species as a result of sand and gravel extraction is clear. Take as a result of a parcel split, however, is not so clear. A parcel split in and of itself may not result in take, but parcel splits often lead to the development of an area and actions that do result in take under the Act (e.g., ranchettes and subdivisions).
Take incidental to an otherwise lawful activity may be authorized by one of two procedures. If a Federal agency is involved with the permitting, funding, or carrying out of this project, then initiation of a formal consultation between that agency and the Service pursuant to section 7 of the Act is required if it is determined that the proposed project may affect a federally-listed species.
Such consultation would result in a biological opinion that addresses anticipated effects of the project to listed and proposed species and may authorize incidental take. If a Federal agency is not involved with the project, and federally-listed species may be taken as part of the project, then an “incidental take” permit pursuant to section 10 of the Act should be obtained. The Service may issue such a permit upon completion by the permit applicant of a satisfactory conservation plan for the listed species that would be affected by the project.
In closing, the Service is glad to work with the County of Merced to resolve potential issues under the Endangered Species Act. If you have any questions, please contact Dr. Jeffrey P. Jorgenson (staff contact) or Ms. Susan P. Jones (Chief, San Joaquin Valley Branch) of the Sacramento Fish and Wildlife Office at (916) 414-6600. Please refer to File Number 81420-2008-TA-1335 in any future correspondence.
(Susan P. Jones originally signed)
Peter A. Cross
Deputy Assistant Field Supervisor
Enclosure: San Joaquin Kit Fox Approximate Distribution (map)
County of Merced, Planning and Community Development Department, Merced, CA (Attn. Mr. David Gilbert and Ms. Oksana Newman)
California Department of Fish and Game, Fresno, CA (Attn. Ms. Annee Ferranti)
U.S. Army Corps of Engineers, Sacramento, CA (Attn. Ms. Kathy Norton)
National Marine Fisheries Service, Sacramento, CA (Attn. Ms. Maria Rea)
U.S. Fish and Wildlife Service, Stockton, CA (Attn. Mr. J.D. Wikert)
California Department of Fish and Game, Fresno, CA (Attn. Ms. Pat Brantley
Merced County Planning and Community Development Department
Robert A. Lewis
Development Services Director
2222 M. Street
Merced CA 95340
May 7, 2008
Mr. Peter A. Cross, Deputy Assistant Field Supervisor
United States Department of the Interior
Fish and Wildlife Service
Sacramento Fish and Wildlife Office
2800 Cottage Way, Room W-2605
Sacramento, CA 95835-1846
Proposed Robinson Property Projects: Conditional Use Permit for Sand Mining (CUP06-008) and Minor Subdivision (MS07-058) in Merced County, California
Dear Mr. Cross,
The Merced County Planning and Community Development Department (the County) is in receipt of your letter dated April 23, 2008 regarding the two above-referenced Robinson Property applications currently in process at the County. The County would like to take this opportunity to provide some clarification regarding several comment items in your letter.
First, I very much appreciate the depth of comments supplied by the Fish and Wildlife Service (FWS) as the County is in the preliminary stages of determining the appropriate level of CEQA study that will be required of the Conditional Use Permit (CUP) for the sand mining project on the Robinson Property.
Second, this letter will serve to clarify the distinction between the two proposed projects (the minor subdivision and CUP). The County has determined that, while both projects are located in the same property boundary, each are distinct from each other. Furthermore, denial or approval of one application would not impact the decision or analysis on the other application. To clarify, the minor subdivision is based on the large size of resulting parcels (ranging from 165 acres to 343 acres) are unlikely to be converted to ranchette housing, which tends to occur on parcels ranging from one to twenty acres. The landowner, Mr. Christopher, Robinson, has indicated that the division of these parcels (1,027.20 acres in total) is to maintain division of the Merced River conservation area from the adjacent parcels, and that there is no plan to change the land use of any of the parcels. Given the absence of any change in physical land use as a result of the parcel split, the County determined that CEQA study is unwarranted for the minor subdivision.
Finally, as confirmed by Dr. Jeffrey Jorgenson in a May 1st, 2008 phone call with Ms. Oksana Newman, the information referenced in your letter regarding a Hearing Officer Agenda of March 10, 2008 and staff report for the minor subdivision project were not submitted to your office by the County, as stated in your letter. An outside party submitted these documents without the County’s knowledge. This letter will clarify for the record that no referral regarding this project was made to your office, but was instead sent to the FWS Los Banos division for review in December 2007, and no response has been received to date for the minor subdivision request.
In light of this information, the County requests that the FWS consider revising its determination that CEQA study is suggested for the minor subdivision parcel split. The County does, however, support the FWS concerns regarding the direction of environmental review under CEQA for the sand mine project.
Regarding your request for additional information pertaining to the existing conservation area on the property, the County was not provided any information by the property owner about the conservation easement area, and will request that it be provided to both the FWS and the County for the CUP application on the Robinson Property.
I appreciate your attention to this matter, and all of us at the County look forward to working with you and your staff on the Robinson San Mine project, as well as other projects in the future.
Robert A. Lewis
Development Services Director
Cc: Bill Nicholson, Assistant Development Services Director
Robert Gabriele, Deputy County Counsel
Demetrios Tatum, Merced County CEO
James Fincher, Merced County Counsel
Oksana Newman, Planner II
Christopher Robinson, Property Owner
Des Johnston, Santa Fe Land Planning
Chuck Falkenstein, Central Valley Concrete
Robert Gabriele – Re: Robinson’s Minor Subdivision (adjustment of lines NOT use) of 1027.2 acres from 3 to 4 parcels
From: Peter Cross@fws.gov
To: Robert Gabriele Rgabriele@co.merced.ca.us
Date: 6/18/2008 4:05 PM
Subject: Re: Robinson’s Minor Subdivision (adjustment of lines NOT use) of 1027.2 acres from 3 to 4 parcels
As we discussed in our telephone conversation earlier today, regarding the Service’s comments on the two actions before the County of Merced (County) involving the Robinson Parcels, I am proving you with a clarification of our recent letter to the County. We provided biological information on the two actions as the parcels involved were essentially the same piece of land and our comments on listed species are, therefore, relevant to both actions. We acknowledge that in the case of redrawing parcel lines, no actual impact to federally-listed species occur. Our intent is to provide the County and the applicant with information about the property and whether there could be a potential for take pursuant to the Endangered Species Act of 1973, as amended (Act) when actual ground disturbing activities take place. Additionally, since the biological information provided by the applicant to the County for one of the actions appears to be incorrect as it relates to federally-listed species, we sought to correct that information as well as raise awareness of potential issues, so they can be addressed in any application to the County to proceed with an activity that might result in unauthorized take in violation of section 9 of the Act.
Peter A. Cross
Deputy Assistant Field Supervisor
U.S. Fish and Wildlife Service
Endangered Species Program
Minor Subdivision Application/Parcel Map Waiver No. MS07-058 – Chris Robinson
Board of Supervisors Staff Report on Appeal – July 1, 2008 (continued from June 10, 2008 Board Hearing)
Page 9 of 17
The April 23, 2008 U.S. Fish & Wildlife letter commented that the subdivision of land does not result in a take of listed threatened and/or endangered animal or plant species (“a parcel split in and of itself where it confirmed: may not (does not) result in take”) the County agrees 100%. In effect, the April 23, 2008 U.S. Fish and Wildlife Service letter suggested in effect that if numerous further discretionary permits are issued that would reduce the proposed 4 parcels of 1,027.20 acres to such small acreages that those small acreages if allowed to develop ranchette type development if any of those reduced to ranchette sized parcels are in “sensitive” locations, then such hypothetical potential development might result in a “take.” All of that is based on hypotheticals, not based on any change in activity or use of land by the mere adjustment of property lines on 3 parcels to 4 parcels. Therefore, this letter does not constitute credible evidence of a fair argument that for the mere minor subdivision here, an environmental study is required. However, the Service noted that potentially if development eventually occurs (such as ranchettes if the parcels subdivide to ranchette sizes) then on the newly created parcels then those actions may result in a take depending on location, etc…
In fact, what Mr. Peter Cross, deputy assistant field supervisor, U.S. Fish and Wildlife Service, Endangered Species Program, wrote in his April 23, 2008 letter was:
In this case, the potential for take of federally-listed species as a result of sand and gravel extraction is clear. Take as the result of a parcel split, however, is not so clear. A parcel split in and of itself may not result in take, but parcel splits often lead to the development of an area and actions that do result in take under the Act (e.g., ranchettes and subdivisions.
Cross’s June 18, 2008 memo states:
We acknowledge that in the case of redrawing parcel lines, no actual impact to federally-listed species occur.
Neither statement bears much resemblance to the alleged quote from the Service’s letter in the July 1, 2008 staff report to the Merced County Board of Supervisors:
(“a parcel split in and of itself where it confirmed: may not (does not) result in take”)