First NBHCP (1997):
October 20, 1993: The USFWS publishes its listing of the giant garter snake as a threatened species under the ESA in the Federal Register.
November 1993: The U.S. Army Corp of Engineers agrees to address indirect effects of the flood control project. Therefore, SAFCA must develop a habitat mitigation plan as a condition of their 404 Clean Water Act permit.
October 21, 1994: The Natomas Basin Conservacy (NBC) is incorporated, a California Non-profit Public Benefit Corporation
March 30, 1995: Tax exemption status of the NBC, federal 501 (c) (3)
April 11, 1995: Tax exemption status of the NBC, state 23701d
March 1994-June 1996: SAFCA is the lead agency in developing the HCP, but had to discontinue their efforts due to their lack of land use authority. However, three HCP drafts were released for comment in March 1995, October 1995, and June 1996.
November 1996: The City of Sacramento takes on the effort of developing the HCP and submits it to the USFWS along with an application for an incidental take permit.
January 15, 1997: Environmental Assessment available
November 1997: Natomas Basin Habit Conservation Plan adopted
December 31, 1997: USFWS issues an incidental take permit pursuant to section 10 (a)(1)(B) of the ESA
April 1998: The City of Sacramento begins collecting habitat mitigation fees and issuing urban development permits under the 1997 NBHCP
March 15, 1999: NBC employees staff
Revised NBHCP (2003):
August 16, 2002: the draft EIS/EIR, draft NBHCP and draft Initial Assessment (IA) went out for public review
December 5, 2002: public review period for draft EIS/EIR, draft NBHCP, and draft IA concluded
May 2, 2003: the final EIS/EIR, final NBHCP and final IA went out for a 30-day public comment period, ending June 2, 2003.
June 27, 2003: Incidental take permit issued by the USFWS based on revised NBHCP
July 10, 2003: Incidental take permit issued by the Department of Fish and Game based on revised NBHCP.
The NBHCP is part of a multi-step process to comply with Federal requirements and then apply for Federal and State permits. Under Section 10(a)(1)(B) of the Endangered Species Act (ESA) a completed Habitat Conservation Plan (HCP) for the Natomas Basin is required before the U.S. Fish and Wildlife Services (USWFS) may issue an incidental take permit. An HCP is “designed to offset any harmful effects the proposed activity might have on the species;” allowing development to proceed and conservation of the threatened and endangered species to progress (www.fws.gov). With the completed HCP, a thorough Environmental Impact Report (EIR) on the HCP finished, and after concluding the public comment periods, the acting agencies, City of Sacramento, Sutter County and Sacramento County, are then allowed to proceed with applying for the incidental take permits. Under State law, California Fish and Game Code Section 2081(b) the NBHCP serves as the application for incidental take permits. The product of the NBHCP is the NBC, which regulates the incidental take of covered species under the issued permits.
The NBHCP project has been ongoing for almost a decade. It all began in 1994 when its creation became a condition of a U.S. Army Corps of Engineers permit. In 1994, the Sacramento Area Flood Control Agency (SAFCA) proposed a flood control project for the basin and in order to grant the permit to SAFCA the U.S. Army Corps of Engineers requested the preparation of a HCP. The local land use agencies, City of Sacramento, Sutter County and Sacramento County; and the water agencies, Reclamation District Number 1000 and Natomas Central Mutual Water Company; collaborated to begin preparation on the Natomas Basin HCP. At the end of 1997, the NBHCP had been adopted by the City of Sacramento and the City then submitted their permit application for incidental take to the USFWS. Both Sacramento and Sutter counties soon followed, submitting draft HCPs to the USFWS in October 2006.
However, with most of the documents and permit applications submitted, the USFWS had to suspend review of the countys’ HCPs due to a pending lawsuit challenging the City of Sacramento’s HCP and permit. To date, Sacramento County has till not reapplied for an incidental take permit which would apply to the unincorporated County lands in the Natomas Basin using any of the HCPs.
Underlying Needs and Purposes
The purpose and goal of the NBHCP is to balance the “preserving, restoring, and enhancing of habitat values” with permitted authorized urban development. The Conservancy focuses on promoting a multi-species conservation, while still permitting economic development and agriculture in the growing Sacramento region.
The plan seeks to minimize and mitigate the effects associated with the incidental take of 22 listed species due to urban development and agriculture through its conservation strategy. Through the payment of development fees, 0.5 acre of mitigation land is established for every one acre of land that is developed within one of the designated permit areas. For example, a total of 7,759 acres of mitigation land is acquired for 15, 517 acres of urban development. The mitigation land is acquired and then managed by the Natomas Basin Conservancy, the "plan operator."
For both the 1997 and 2003 NBHCP, the draft and final EIS/EIR, NBHCP and IA went through public review. The dates of these public comment periods are listed above in the chronology. This project was very controversial, partly due to the many agencies and interested persons involved, and therefore the public comment period was very active. The 2003 NBHCP was in response to deficiencies found in the first HCP in 1997.
In addition, during SAFCA's initial efforts to develop the HCP public workshops were held to address the concerns of the public. The workshops were structured into focus groups such as, developers, the environmental community, neighbors, the rice industry, etc.
The NBHCP and the continued efforts of the Conservancy are most involved with issues such as, land acquisition, conservation strategy, protection of listed species, habitat reserve system, monitoring, and reserve consolidation.
However, the greatest purpose of the NBHCP is balancing the biological and local needs in the Basin. The biologists and environmentalists and the locals, farmers, and developers may not always agree that the mitigation of the land is fair or adequate for their needs. Some of the key issues the NBHCP must balance include:
(1) the proportion of mitigation land that can be maintained in rice production
(2) the proportion of mitigation land that can be established out-of-Basin
(3) the current percentage of managed marsh, 25 percent, and out-of-Basin land, 20 percent, allowed by the NBHCP may not be “biologically optimal”
(4) acquisition of lands in-Basin and conversion of large amounts of rice lands to marsh are very costly, in addition the loss of beneficial agricultural land increases the impacts of urbanization.
Three alternatives were provided and for each the NBHCP explained their feasibility.
(1) Alternative Reserve Management represents the implementation of alternative reserve management systems that would not allow hunting and/or rice production on any reserve lands. This alternative was deemed “financially unacceptable.”
(2) Alternate Proportions of Marsh and In-Basin Land is the balancing of the biological and local interests by maintaining a proportion of mitigation lands managed as season or permanent marsh (as opposed to rice-farming) or acquired in-Basin (as opposed to out-of-Basin). This alternative is identified as the preferred alternative because it is the most practical way of meeting both biological objectives and local interests.
(3) No Action Alternative would avoid all take, no federal or state permits would be applied for or obtained, and therefore no comprehensive HCP would be implemented.
The environmental consequences of this plan is the effect any approved urban development, agricultural activities, or water agencies' projects will have on the covered species. A handful of the covered species are listed as endangered and a majority of them are listed as threatened on the federal and state lists. The NBHCP provides the impacts of the plan on each covered specie.
Use of Science
The main chapter utilizing science in the NBHCP is chapter 2, "Biological Data." The chapter reports the habitat distribution, meaning the amount of acres in each land use classification such as grasslands, airport, highways, canals, and ponds to name a few, using the Habitat and Land Use Assessment Database. The chapter also gives a detailed report on the giant garter snake and Swainson's hawk, two of the most populous threatened species in the Natomas Basin. The information on the giant garter snake was obtained from the USFWS's Recovery Plan for the Giant Garter Snake and a majority of the information on the Swainson's hawk came from annual surveys executed by the Swainson's Hawk Technical Advisory Committee.
Chapter 7, "Take Levels/Impacts of the Plan" also uses science to report on the impacts of each of the 22 covered species individually, under the plan. This section of the plan used an array of databases and annual reports on the species to determine the impacts.
This plan has been riddled with controversy. Since its first adoption in 1997, controversies over the documents' flaws, said leanings to advantage development, and the authority of agency actors in the process have culminated into several lawsuits:
(1) National Wildlife Federation (NWF), et al. V. Babbitt
In February 2000, the plaintiffs, NWF and others sued Babbitt, Secretary of the Interior and head of the USFWS for the service's issuance of the incidental take permit to the City of Sacramento based on the 1997 NBHCP. The plaintiffs claimed that the USFWS violated Section 7 (consultation) and 10 (incidental take) of the ESA when they issued the permit. The plaintiffs also claimed that the USFWS violated the National Environmental Policy Act (NEPA) with their preparation of an Environmental Assessment rather than an Environmental Impact Statement. The Court ruled in favor of the plaintiffs and the parties reached a settlement agreement which allows incidental take protection for specified land development within the City of Sacramento with conditions of specific mitigation obligations (www.fws.gov)
(2) Environmental Council of Sacramento v. City of Sacrament
The Environmental Council of Sacramento challenged the City of Sacramento and Sutter County's certification of the EIR and issuance of incidental take permits claiming: 1) the agencies failed to consider the impacts that the Joint Vision Memorandum of Understanding and other development projects would have on the Swainson’s hawk and giant garter snake (the two most threatened species in the Basin) 2) the mitigation measures were "impermissibly unfunded, voluntary, unenforceable, and infeasible" and 3) the 0.5:1 ratio for the purchase of mitigation land was infeasible. The federal court held that the Secretary of the Interior's findings and issuance of the incidental take permits and the revised plan satisfied the requirements of the ESA and denied the plaintiff's claim on all three points.
(1) The Natomas Basin Habitat Conservation Plan 2003. (http://www.natomasbasin.org/content/view/144/93/)
(2) The Natomas Basin Final Environmental Impact Report available at the Natomas Basin Conservacy Offices
(3) U.S. Fish and Wildlife Service. Findings and Recommendations for the Issuance of Section 10(a)(1)(B) Incidental Take Permits Associated with the Natomas Basin Habitat Conservation Plan. 27 June 2003 (http://www.fws.gov/Midwest/endangered/permits/selreadings/NatomasFinding...)