2022/06/14 City Council Resolution 2022-062 RESOLUTION NO. 2022-062
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
APPROVING STREAMBED ALTERATION AGREEMENT AND APPROVING
AGREEMENT FOR SALE OF RIPARIAN HABITAT MITIGATION EAST AUSTIN
CREEK CONSERVATION BANK SITE FOR THE COPELAND CREEK TRAIL TO
CRANE CREEK REGIONAL PARK (PROJECT NO. CIP0719)
WHEREAS, the City desires to construct the Copeland Creek Trail to Crane Creek
Regional Park Project("Project"), a multi-use trail that will connect the eastern end of the
Copeland Creek Trail on the Sonoma State University campus to Crane Creek Regional Park;
and
WHEREAS, the City Council approved the Initial Study and Mitigated Negative
Declaration (MND) on February 25, 2020 for the Project, committing the City to implement
mitigation measures outlined in the MND and the Mitigation and Monitoring Reporting Program
(MMRP)to avoid, mitigate and/or reduce to a less-than-significant level, impacts on biological
resources, cultural resources, hazards, and hazardous materials in the Project area; and
WHEREAS, MMRP Mitigation Measure BIO-7: Streambed Alteration Agreement
requires that the City obtain a Streambed Alteration Agreement from the California Department
of Fish and Wildlife (CDFW) prior to work in the Copeland Creek riparian corridor in the
Project area; and
WHEREAS, MMRP Mitigation Measure BIO-8: Permitting and Mitigation for
Wetlands and Waters of the U.S. and State requires that the Project should span or avoid all
wetland and water resources, however, if avoidance is not possible, regulatory agency
consultation, permitting, and implementation of mitigation plans are required, and may include
the purchase of credits for off-site mitigation; and
WHEREAS, the City desires to purchase credits for off-site mitigation from the East
Austin Creek Conservation Bank Site to fulfill MMRP Mitigation Measures BIO-7 and BIO-8;
and
WHEREAS, the construction of the Project cannot proceed without an approved
Streambed Alteration Agreement to fulfill MMRP Mitigation Measures BIO-7 and the purchase
of mitigation credits to fulfill Mitigation Measure BIO-8.
NOW,THEREFORE, BE IT RESOLVED that the City Council of the City of Rohnert
Park does hereby approve the Streambed Alteration Agreement (EPIMS-SON-15175-R3):
Copeland Creek and Unnamed Tributaries to Hinebaugh Creek included as Exhibit A and
the Agreement for Sale of Riparian Habitat Mitigation - East Austin Creek Conservation
Bank Site included as Exhibit B.
BE IT FURTHER RESOLVED that the Assistant City Manager or designee is hereby
authorized and directed to execute the Agreements in substantially similar form to those
Agreements attached hereto and incorporated by this reference as Exhibits A and B subject to
minor modifications approved by the City Manager or City Attorney.
DULY AND REGULARLY ADOPTED this 14th day of June, 2022.
CITY OF ROHNERT PARK
a kie lw , yor
ATTEST:
Sylvia open Cuevas ity Clerk _
Attachments: Exhibit A and Exhibit B -
GIUDICE: rtiy
,HOLLINGSWORTH-ADAMS: RODRIGUEZ: STAFFORD: ELWAR
AYES: ( �) NOES: ( ) ABSENT: ( STAIN: (52) J
Resolution 2022-062
2
Ver. EPIMS 09/01/2020
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
BAY DELTA REGION
2825 CORDELIA ROAD , SUITE 100
FAIRFIELD, CA 94534
707) 428-2002
STREAMBED ALTERATION AGREEMENT
EPIMS-SON-15175-R3
COPELAND CREEK AND UNNAMED TRIBUTARIES TO HINEBAUGH CREEK
CITY OF ROHNERT PARK
TRAIL TO CRANE CREEK PARK
This Streambed Alteration Agreement (Agreement) is entered into between the
California Department of Fish and Wildlife (CDFW) and City of Rohnert Park (Permittee)
as represented by Vanessa Garrett.
RECITALS
WHEREAS, pursuant to Fish and Game Code section 1602, Permittee notified CDFW
on February 18, 2021, and provided subsequent documents, that Permittee intends to
complete the Project described herein.
WHEREAS, pursuant to Fish and Game Code section 1603, CDFW has determined
that the Project could substantially adversely affect existing fish or wildlife resources
and has included measures in the Agreement necessary to protect those resources.
WHEREAS, Permittee has reviewed the Agreement and accepts its terms and
conditions, including the measures to protect fish and wildlife resources.
NOW THEREFORE, Permittee agrees to complete the Project in accordance with the
Agreement.
PROJECT LOCATION
The Project is located at Copeland Creek and two unnamed tributaries to Hinebaugh
Creek, east of the City of Rohnert Park in unincorporated County of Sonoma, State of
California (Exhibit A). The Assessor’s Parcel Number is 047-132-038-000.
Location 1, at Copeland Creek, is located approximately 0.25 miles south of the
intersection of Petaluma Hill Road and Rohnert Park Expressway at Latitude
38.34238°N, Longitude 122.66658°W.
Location 2, at an unnamed tributary to Hinebaugh Creek, is located approximately 0.53
miles southwest of the intersection of Pressley Road and Oak Springs Lane at Latitude
38.34275°N, Longitude 122.64868°W.
Exhibit A to Resolution
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Location 3, at an unnamed tributary to Hinebaugh Creek, is located approximately 0.41
miles southwest of the intersection of Pressley Road and Oak Springs Lane at Latitude
38.34476°N, Longitude 122.64788°W.
PROJECT DESCRIPTION
The Project is limited to constructing three pedestrian bridges (Exhibit B):
1. At Location 1, an approximately 8-foot-wide, 90-foot-long arch steel truss clear-
span bridge will be installed over Copeland Creek. Concrete abutments and
associated concrete piles will be installed to a depth of approximately 17 feet.
Bridge installation will permanently impact approximately 1,542 square feet and 8
linear feet of stream habitat.
2. At Location 2, an approximately 8-foot-wide, 14-foot-long clear-span foot bridge
will be installed over an unnamed tributary to Hinebaugh Creek. Concrete
abutments will be installed to a depth of approximately 1.5 feet. Foot bridge
installation will permanently impact approximately 317 square feet and 8 linear
feet of stream habitat.
3. At Location 3, an approximately 8-foot-wide, 14-foot-long clear-span foot bridge
will be installed over an unnamed tributary to Hinebaugh Creek. Concrete
abutments will be installed to a depth of approximately 1.5 feet. Foot bridge
installation will permanently impact approximately 154 square feet and 8 linear
feet of stream habitat.
The Project will permanently impact 2,013 square feet (0.046 acres) and 24 linear feet
of stream habitat through infrastructure installation and overwater shading. No trees will
be removed. Impacts will be mitigated off site at a 3:1 mitigation to impact ratio.
PROJECT IMPACTS
Existing f ish or wildlife resources the Project could substantially adversely affect include:
Coho salmon South of Punta Gorda (Oncorhynchus kisutch pop. 4), State listed
as endangered and Central California Coast Evolutionarily Significant Unit
Federally listed as endangered
Central California Coast steelhead (Oncorhynchus mykiss irideus pop. 8),
Federally listed as threatened
California tiger salamander (Ambystoma californiense), State listed as threatened
and Sonoma County Distinct Population Segment Federally listed as endangered
California red-legged frog (Rana draytonii), Federally listed as threatened,
California Species of Special Concern (SSC)
Sonoma Alopecurus (Alopecurus aequalis var. sonomensis ), Federally
endangered and California Rare Plant Rank (CRPR)1 1B.1
1 CRPR rank definitions are available in CDFW’s Special Vascular Plants, Bryophytes, and Lichens List
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Two-fork clover (Trifolium amoenum), Federally endangered and CRPR 1B.1
Franciscan onion (Allium peninsulare var. franciscanum), CRPR 1B.2
Napa false indigo (Amorpha californica var. napensis ), CRPR 1B.2
Bent-flowered fiddleneck (Amsinckia lunaris ), CRPR 1B.2
Pappose tarplant (Centromadia parryi ssp. parryi), CRPR 1B.2
Fragrant fritillary (Fritillaria liliacea), CRPR 1B.2
Congested-headed hayfield tarplant (Hemizonia congesta ssp. congesta), CRPR
1B.2
Jepson’s leptosiphon (Leptosiphon jepsonii), CRPR 1B.2
Golden eagle (Aquila chrysaetos ), Fully Protected species
White-tailed kite (Elanus leucurus ), Fully Protected species
Foothill yellow-legged frog (Rana boylii), Northwest/North Coast clade, SSC
California giant salamander (Dicamptodon ensatus ), SSC
Burrowing owl (Athene cunicularia), SSC
Western pond turtle (Emys marmorata), SSC
American badger (Taxidea taxus ), SSC
Western bumble bee (Bombus occidentalis), California Terrestrial and Vernal
Pool Invertebrate of Conservation Priority (ICP)2
Riparian habitat
Common aquatic and terrestrial species
The adverse effects the Project could have on the fish or wildlife resources identified
above include:
Permanent loss of riparian habitat
Permanent modification of aquatic habitat
Colonization by exotic plant species
Increased turbidity
Change in composition
Short term release of contaminants
Soil compaction or other disturbance to soil layer
Loss of aquatic and terrestrial wildlife species
Disruption of nesting birds and other wildlife
Disturbance from Project activities
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=109383&inline ) and on the California Native Plant
Society website (https://www.cnps.org/rare-plants/cnps -rare-plant-ranks).
2 The list of California Terrestrial and Vernal Pool Invertebrates of Conservation Priority was collated
during CDFW’s Scientific Collecting Permit rulemaking process:
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=157415&inline
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MEASURES TO PROTECT FISH AND WILDLIFE RESOURCES
1. Administrative Measures
Permittee shall meet each administrative requirement described below.
1.1 Documentation at Project Site. Permittee shall make the Agreement, any
extensions and amendments to the Agreement, and all related notification
materials and California Environmental Quality Act (C EQA) documents, readily
available at the Project site at all times and shall be presented to CDFW personnel,
or personnel from another state, federal, or local agency upon request.
1.2 Providing Agreement to Persons at Project Site. Permittee shall provide copies of
the Agreement and any extensions and amendments to the Agreement to all
persons who will be working on the Project at the Project site on behalf of
Permittee, including but not limited to contractors, subcontractors, inspectors, and
monitors.
1.3 Notification of Conflicting Provisions. Permittee shall notify CDFW if Permittee
determines or learns that a provision in the Agreement might conflict with a
provision imposed on the Project by another local, state, or federal agency . In that
event, CDFW shall contact Permittee to resolve any conflict .
1.4 Project Site Entry . Permittee agrees that CDFW personnel may enter the Project
site at any time to verify compliance with the Agreement.
1.5 Notify CDFW Prior to Work. The Permittee shall notify CDFW by email at least five
working days prior to commencement of covered activities. See contact information
below.
1.6 No Trespass. To the extent that any provisions of this Agreement provide for
activities that require the Permittee to traverse another owner's property, such
provisions are agreed to with the understanding that the Permittee possesses the
legal right to so traverse. In the absenc e of such right, any such provision is void.
1.7 Unauthorized Take. The Permittee is required to comply with all applicable state
and f ederal laws, including the California Endangered Species Act (CESA) and
f ederal Endangered Species Act. This Agreement does not authorize the take3 of
any state or f ederal endangered or threatened species. Liability for any take or
incidental take of such listed species remains the responsibility of the Permittee for
the duration of the Project. Any unauthorized take of such listed species may result
in prosecution and nullification of the Agreement.
3 Take, as defined in Fish and Game Code section 86, means hunt, pursue, catch, capture, or kill, or
attempt to hunt, pursue, catch, capture, or kill. Take, as defined in title 16 of U.S. Code section 1532
subsection 19, means harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt
any of those activities.
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1.8 Fish Passage. The Project shall comply with Fish and Game Code section 5901
and shall not install or maintain any device or contrivance that prevents, impedes,
or tends to prevent or impede, the passing of fish4 up and down stream.
1.9 Designated Representative. Before initiating ground-disturbing Project activities,
Permittee shall designate a representative (Designated Representative)
responsible for communications with CDFW and overseeing compliance with this
Agreement. The Permittee shall notify CDFW in writing five days prior to
commencement of Project activities of the Designated Representative’s name,
business address, and contact information. Permittee shall notify CDFW in writing
if a substitute Designated Representative is selected or identified at any time
during the term of this Agreement.
2. Avoidance and Minimization Measures
To avoid or minimize adverse impacts to fish and wildlife resources identified above,
Permittee shall implement each measure listed below.
Work Period and Design
2.1 Work Period. All work shall begin on or after June 15 and all work shall be
completed by October 15. Revegetation work is not limited to this work window but
must be completed within the same season as Project activities.
2.2 Work Period Modification. If a work period modification is needed, the work may be
permitted outside of the work period by a CDFW representative who reviewed the
Project, or if unavailable, through contact with the Regional Office at (707) 428-
2002. Permittee shall submit a written request for a work period variance on a
week -by -week basis to CDFW. The work period variance request should consider
the effects of noise, increased stream flows, rain delays, increased erosion control
measures, limited access due to saturated soil conditions, and limited growth of
erosion control grasses due to cool weather. Work period variances are issued at
the discretion of CDFW. CDFW reserves the right to require additional measures to
protect fish and wildlife resources as a condition for granting the variance. At
minimum, the work period variance request shall:
1) Describe the extent of work already completed.
2) Detail the activities that remain to be completed.
3) Provide a National Weather Service forecast covering the time needed,
up to one week, to com plete a phase or activity.
4) Detail the time required to complete each of the remaining activities.
5) Provide photographs of both the completed and proposed work sites.
6) Include an assessment of additional biological impacts as a result of the
work extension.
4 Fish, as defined in Fish and Game Code Section 45, means a wild fish, mollusk, crustacean,
invertebrate, amphibian, or part, spawn, or ovum of any of those animals.
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2.3 Conduct Work During Daylight Hours. Work is restricted to daylight hours (one
hour after sunrise to sunset).
2.4 Work According to Documents. Except as they are contradicted by measures
required by this Agreement, all work shall be conducted in conformance with the
project description above and the avoidance, minimization, and mitigation
measures provided in the notification package.
2.5 Work According to Plans. All work shall be completed according to the plans
submitted to CDFW titled Improvement Plans: Trail to Crane Creek Regional Park ,
prepared by Brelje & Race Consulting Engineers, dated April 20, 2021 (Exhibit B).
If the Permittee finds it necessary to update project plans prior to construction, the
updated plans shall be submitted to CDFW at least 30 days prior to beginning
Project activities to determine if an Amendment to this Agreement is required.
Project activities shall not proceed until CDFW has accepted the updated plans in
writing. At the discretion of CDFW, minor plan modifications may require an
amendment to this Agreement. At the discretion of the CDFW, if substantial
changes are made to the original plans this Agreement becomes void and the
Permittee shall submit a new notification.
Weather Restrictions
2.6 Work Period in Dry Weather Only. Project work shall be restricted to dry weather,
as allowed during the work period specified in Measure 2.1 , and when no flowing
water is present. The Permittee shall monitor forecasted precipitation. When a
0.25-inch or more of precipitation is forecasted to occur, the Permittee shall stop
work before precipitation commences. No Project activity may be started if its
associated erosion control measures cannot be completed prior to the onset of
precipitation. After any storm event, the Permittee shall inspect all sites currently
under construction and all sites scheduled to begin construction within the next
72 hours for erosion and sediment problems and take corrective action as
needed. Seventy -two-hour weather forecasts from the National Weather Service
shall be consulted and work shall not resume until runoff ceases and there is
less than a 30 percent forecast for precipitation for the following 24-hour period.
Weather forecasts shall be documented upon request by CDFW.
Qualified Biologist(s) and Biological Monitor(s)
2.7 CDFW-Approved Qualified Biologist(s) and Monitor(s). At least 14 days prior to the
start of Project activities, Permittee shall submit to CDFW for written approval, the
names and resumes of all Qualified Biologists and Biological Monitors involved in
conducting surveys and/or monitoring work.
A Qualified Biologist is an individual who holds a bachelor’s degree from an
accredited university and: 1) is knowledgeable in relevant species’ life histories
and ecology, 2) can correctly identify relevant species, 3) has conducted field
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surveys for relevant species, 4) is familiar with relevant survey protocols, and 5)
is knowledgeable of state and federal laws regarding the protection of sensitive
species.
A Biological Monitor is an individual who shall have academic and professional
experience in biological sciences and related resource management activities
as it pertains to this Project, experience with construction -level Biological
Monitoring, be able to recognize species that may be present within the Project
area, and be familiar with the habitats and behavior of those species.
2.8 CDFW Approved Qualified Biologist or Biological Monitor On-site. A Qualified
Biologist or Biological Monitor shall be on site daily to monitor compliance with all
conditions of this Agreement unless otherwise approved in writing by CDFW .
Qualified Biologist or Biological Monitor shall have the authority to halt project
activities, through communication with the Project Manager or their on-site
designee, to comply with the terms of this Agreement and otherwise avoid impacts
to species and or habitats. If the on-site Biologist has requested a work stop due
to f ailure to implement any of the conditions, CDFW shall be contacted within 24
hours.
General Wildlife Protection and Prevention
2.9 Special-Status Species Survey. A Qualified Biologist, approved by CDFW for this
project, shall conduct a pre-construction survey within 48 hours prior to the start
of project activities, focusing on the presence of special-status species. If any
special-status species are discovered dur ing the survey, project activities shall not
begin until CDFW has been consulted with regarding avoidance and minimization
measures to avoid impacts to special-status species.
2.10 Training Session for Personnel. Permittee shall ensure that a CDFW-approved
Qualified Biologist conducts an education program for all persons employed on the
Project prior to performing covered activities. Instruction shall consist of a
presentation by the designated Qualified Biologist that includes a discussion of the
biology and general behavior of any sensitive species which may be in the area,
how they may be encountered within the work area, and procedures to follow when
they are encountered. The status of CESA -listed species, including legal
protection, penalties for violations, and Project-specific protective measures
provided in this Agreement shall be discussed. Interpretation shall be provided for
non-English speaking workers, and the same instruction shall be provided for any
new workers prior to on-site Project activity. Copies of the Agreement for this
Project shall be maintained at the worksite with the Project supervisor. Permittee or
Qualified Biologist shall prepare and distribute wallet-sized cards or a factsheet
handout containing this information for workers to car ry on-site. Upon completion
of the program, employees shall sign an affidavit stating they attended the program
and understand all protection measures. These forms shall be filed at the
Permittee’s office and be available to CDFW upon request.
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2.11 Daily Inspections. At the beginning of each workday and prior to construction
activities beginning, the work areas, equipment and material left onsite, and any
access routes into the work area and nearby vicinity, shall be inspected by a
Biological Monitor or qualified person approved in writing by CDFW for the
presence of special-status species, roosting bats, nesting birds, or other wildlife. If
any species is detected, CDFW shall be notified and construction activities shall
not begin until the species has left the site of its own volition, or CDFW provides
written permission to proceed.
2.12 Wildlife Encounters. If any wildlife is encountered during the course of
construction, all work in the immediate area shall cease and said wildlife shall be
allowed to leave the construction area unharmed. If any listed fish and wildlife
are encountered, the Permittee shall contact CDFW immediately.
2.13 Trenches and Holes. At the end of each workday all trenches and holes greater
than one foot deep shall be completely covered with a material flush with the
ground to prevent wildlife from entering. When trenches cannot be fully covered,
an escape ramp shall be placed at each end of any constructed open trench to
allow any wildlife that may have become entrapped in the trench to climb out
overnight. The ramp may be constructed of either dirt fill or wood planking or other
suitable material that is placed at an angle no greater than 30 degrees.
2.14 Pipes, Hoses, and Similar Structures. All pipes, hoses, or similar structures less
than 12 inches in diameter shall be closed or covered to prevent animal entry. All
construction pipes or similar structures greater than 2 inches in diameter stored at
the Project site overnight shall be inspected thoroughly for wildlife before the pipe
or similar structure is buried, capped, used, or moved.
2.15 No Excavation in Stream. No excavation shall occur below the top-of -bank of any
streams.
2.16 No Equipment in Stream. No equipment shall be operated within the live stream or
within the stream channel below the level of top-of -bank.
California Tiger Salamander Avoidance
2.17 California Tiger Salamander Avoidance. The Project shall not impact California
tiger salamanders or their potentially occupied habitat. No more than two weeks
prior to commencement of Project activities within California tiger salamander
habitat, a Qualified Biologist shall flag potential burrows within and adjacent to the
Project area and access routes for avoidance including a minimum 10-foot
avoidance buffer, or larger as determined by the Qualified Biologist. If burrows
cannot be avoided, Project activities may not commence until the Permittee has
consulted with CDFW and obtained an Incidental Take Permit , unless otherwise
approved by CDFW. If California tiger salamanders are observed in the Project
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area, work shall immediately stop and shall not proceed until written approval from
CDFW is obtained. If take of California tiger salamander could occur, the Permittee
shall apply for and obtain an Incidental Take Permit from CDFW. Impacts to
CESA and federal Endangered Species Act (ESA) listed species such as
California tiger salamander require authorization pursuant to CESA and ESA
from CDFW and the U.S. Fish and Wildlife Service (USFWS) prior to Project
start.
2.18 Documentation of Burrow Avoidance. The Qualified Biologist shall conduct an
additional survey for California tiger salamander refugia such as small mammal
burrows and soil cracks within 48 hours and immediately prior to Project
commencement. Photographs of the Project impact area including access routes
from the 48-hour pre-Project survey that clearly demonstrate the area is devoid of
California tiger salamander refugia shall be provided to CDFW prior to Project
start.
California Red-legged Frog Protection
2.19 California Red-legged Frog Habitat Feature Assessment and Surveys. At least two
weeks prior to the commencement of ground-disturbing activities, the Project area
and nearby vicinity, including a minimum 500-foot radius surrounding the Project
area, shall be assessed by a Qualified Biologist for the presence of California red-
legged frog individuals and habitat features. Habitat features include both aquatic
habitat such as plunge pools and ponds and terrestrial habitat such as burrows.
The results of the habitat feature assessment shall be submitted to CDFW via
EPIMS or email (see Contact Information) for written acceptance prior to starting
Project activities. If habitat features are identified in the Project area they shall be
flagged for avoidance with a feature-specific buffer distance determined by the
Qualified Biologist. If California red-legged frogs are encountered during the
assessment or Project activities, the Project shall not proceed or all work shall
cease, and CDFW shall immediately be notified. Work shall not proceed until the
frog, through its own volition, moves out of harm’s way and CDFW has provided
permission in writing to proceed with the Project. Impacts to California red-
legged frog require authorization from the USFWS pursuant to ESA.
Burrowing Owl Protection
2.20 Burrowing Owl. If Project-related activities are scheduled during the wintering
season for burrowing owls (September 1 to January 31), prior to beginning work on
this Project, a Qualified Biologist shall conduct a habitat assessment and surveys
for burrowing owl, if suitable habitat is present, within 500 meters (1,640 feet) of
the Project site. Surveys shall be consistent with the methods outlined in CDFW’s
Staff Report on Burrowing Owl Mitigation5 . Four survey visits shall occur at least 3
weeks apart prior to Project start. The final monthly survey shall be conducted no
5 Department of Fish and Game, 2012.
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=83843&inline
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less than 14 days prior to the start of Project activities with a final survey focused
on previously identified habitat conducted 24 hours prior to ground-disturbing
activities. Survey results shall be submitted to CDFW for review and acceptance
prior to starting Project activities. If the Qualified Biologist identifies burrowing owls ,
they will recommend a no disturbance buffer for written acceptance by CDFW, and
the Permittee shall implement the buffer.
Foothill Yellow -legged Frog Protection
2.21 Foothill Yellow-legged Frog Surveys. No more than two weeks prior to ground-
disturbing activities, the Project area and nearby vicinity, including a minimum 500
feet upstream and downstream, shall be surveyed for foothill yellow-legged frogs
by a Qualified Biologist, including searching cavities under rocks, within vegetation
such as sedges and other clumped vegetation, and under undercut banks. The
results of the survey shall be submitted to CDFW via EPIMS or email (see Contact
Information) for written acceptance prior to starting Project activities. If foothill
yellow-legged frogs are encountered during the surveys or Project activities, the
Project shall not proceed or all work shall cease until the frog, through its own
volition, moves out of harm’s way or CDFW has provided permission in writing to
proceed with the Project. If foothill yellow-legged frog is found, the Permittee shall
install exclusionary fencing around the work area to limit frogs entering this area, at
the discretion of CDFW.
Western Pond Turtle Protection
2.22 Western Pond Turtle Surveys. Within two weeks prior to the commencement of
ground-disturbing activities, a Qualified Biologist shall perform surveys for western
pond turtles within aquatic and upland habitat at the Project site. Surveys shall
encompass individual turtles and nest sites. If a pond turtle is detected at any time
CDFW shall be notified immediately. Survey results shall be submitted to CDFW
prior to construction activities. All western pond turtles observed on-site shall be
avoided and allowed to leave the Project area of their own volition or may be
relocated with prior written approval from CDFW. Any turtle nest sites shall be
avoided with an appropriate buffer identified by a Qualified Biologist and accepted
by CDFW. If pond turtles or their nests are found, the Permittee shall prepare and
implement a Pond Turtle Habitat Improvement Plan or other protection measures,
if required by CDFW.
American Badger Protection
2.23 American Badger Surveys. A Qualified Biologist shall conduct a pre-construction
survey for the American badger and suitable dens within 48 hours of the
commencement of Project activities. The survey area shall include the Project area
and a 50-foot buffer zone within suitable habitat. If badger dens are found on or
adjacent to the Project site, a minimum 50-foot construction avoidance buffer shall
be established around the den and CDFW shall be immediately notified. The
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avoidance buffer may be increased in consultation with the Qualified Biologist and
CDFW if needed to avoid potential disturbance. If impact to badgers cannot be
avoided, the Permittee shall prepare and implement a Badger Relocation and
Habitat Improvement Plan approved in writing by CDFW prior to project start.
Special-Status Plant Protection
2.24 Pre-Project Special-Status Plant Surveys. A Qualified Biologist shall conduct
botanical surveys during the appropriate blooming period for all special-status
plants that have the potential to occur in or near the Project during the appropriate
season and conditions prior to the start of construction. More than one year of
surveys may be necessary. Surveys shall be conducted following CDFW’s Protocol
for Surveying and Evaluating Impacts to Special Status Native Plant Populations
and Sensitive Natural Communities . Surveys shall be submitted to CDFW for
written approval prior to the start of construction. If special -status plants are
observed, the Project shall fully avoid direct and indirect impacts to all individuals.
If full avoidance is not possible, the Permittee shall implement additional protection
measures, if required by CDFW. If ESA listed species such as two-fork clover or
Sonoma alopecurus are observed, CDFW and USFWS shall be immediately
notified and individual plants shall be completely avoided, unless otherwise
approved in writing by CDFW. Impacts to ESA listed plants require
authorization from USFWS.
Nesting Bird Surveys, Prohibitions, and Buffers
2.25 Breeding Bird Nest Take Prohibition. Permittee shall avoid active nests occurring
at or near the Project site. Permittee is responsible for complying with Fish and
Game Code section 3503 et seq. and the Migratory Bird Treaty Act of 1918.
2.26 Nesting Bird Surveys. If construction, grading, vegetation removal, or other Project-
related activities are scheduled during the nesting season, February 1 to August
31, a focused survey for active nests shall be conducted by a Qualified Biologist
within 7 days prior to the beginning of Project-related activities. The results of the
survey shall be sent to CDFW through EPIMS and via email prior to the start of
Project activities, for review and acceptance (see Contact Information). If an active
nest is found, Permittee shall consult with CDFW regarding appropriate action to
c omply with Fish and Game Code. If a lapse in Project-related work of 7 days or
longer occurs, another focused survey and, if needed, consultation with CDFW,
shall be required before Project work can be reinitiated.
2.27 Active Nest Buffers. If an active nest is found during surveys, Permittee or the
Qualified Biologist shall consult with CDFW regarding appropriate action to comply
with state and federal laws. Active nest sites shall be designated as “Ecologically
Sensitive Areas” (ESA) and protected (while occupied) during Project work by
demarking a “No Work Zone” around each nest site.
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Buffer distances for bird nests shall be site specific and an appropriate
distance, as determined by a Qualified Biologist. The buffer distances shall be
specified to protect the bird’s normal behavior to prevent nesting failure or
abandonment. The buffer distance recommendation sh all be developed after
field investigations that evaluate the bird(s) apparent distress in the presence of
people or equipment at various distances. Abnormal nesting behaviors which
may cause reproductive harm include, but are not limited to, defensive
flights/vocalizations directed towards Project personnel, standing up from a
brooding position, and flying away from the nest. The Qualified Biologist and
Biological Monitor shall have authority to order the cessation of all nearby
Project activities if the nesting birds exhibit abnormal behavior which may
cause reproductive failure (nest abandonment and loss of eggs and/or young)
until an appropriate buffer is established.
The Qualified Biologist shall monitor the behavior of the birds (adults and
young, when present) at the nest site to ensure that they are not disturbed by
project work. Nest monitoring shall continue during project wo rk until the young
have fully fledged (have completely left the nest site and are no longer being
fed by the parents), as determined by the Qualified Biologist.
2.28 Nesting Habitat Removal or Modification. No habitat removal or modification shall
occur within the ESA-marked nest zone (see above measure) until the young have
fully fledged and will no longer be adversely affected by the Project, as determined
by a Qualified Biologist or Biological Monitor . Any trees or shrubs that are removed
shall be “downed” in such a manner as to minimize disturbance to stable soil
conditions.
Vegetation Protection, Prevention, and Restoration
2.29 Habitat Protection. Disturbance or removal of vegetation shall not exceed the
minimum necessary to complete the Project. Vegetation outside the construction
corridor shall not be removed or damaged without prior consultation and approval
of a CDFW representative.
2.30 Vegetation Marked for Protection. Prior to project activities, the Permittee shall
clearly mark all vegetation within the project area that shall be avoided during
project activities.
2.31 Riparian Tree Protection. No trees shall be removed unless otherwise approved
in this Agreement or in writing by CDFW. For each existing tree with a greater than
four-inch diameter at breast height (DBH) within or adjacent to the work area, a
critical root zone shall be established by the Qualified Biologist. The critical root
zone shall extend from the trunk to the drip-line (i.e., the outer extent of the tree
canopy) of each tree within the project area and shall be flagged or fenced off from
work. Protection and avoidance of the critical root zone shall be emphasized
during the on-site education program to avoid impacts. If work will be conducted
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within the root protection zone of a tree, then that tree shall be considered an
impacted tree” and the Permittee or Qualified Biologist shall monitor the tree for
signs of mortality as a result of the Project. If the tree becomes injured or shows
signs of mortality, additional revegetation actions shall be required.
2.32 Tree Drip Line. Construction materials, equipment storage, and parking areas
shall be located outside the drip line of any preserved tree. Construction
equipment shall not cause root compaction.
2.33 Treat Exposed Areas. All exposed/disturbed areas and access points within the
riparian zone left barren of vegetation as a result of the construction activities shall
be restored by seeding with a blend of native erosion control grass seed. Seeded
areas shall be mulched. Landscape fabric shall not be used. Revegetation shall be
completed as soon as possible after construction activities in those areas cease.
Seeding placed after October 15 must be covered with broadcast straw, jute
netting, coconut fiber blanket or similar erosion control blanket.
2.34 Control Invasive Species. Permittee is responsible for monitoring and if needed,
eradication of invasive exotic species that may occur within the Project area for a
minimum of two years following construction. All revegetation efforts shall include
local plant materials native to the Project area.
2.35 Allowable Herbicide. If herbicide use is necessary, only herbicides registered with
the California Department of Pesticide Regulation shall be used. All herbicides
shall be applied in accordance with regulations set forth by the Californi a
Department of Pesticide Regulation and according to label instructions. Only
herbicides approved for use in aquatic environments are permitted. Care shall be
taken to avoid herbicide contact with native vegetation, and it shall only be applied
on calm days (wind speed less than 5 miles per hour) to prevent airborne transfer
of herbicide. No herbicides shall be used where threatened or endangered species
occur, unless otherwise approved in writing by CDFW.
Bridge Design and Construction
2.36 Bottom of Bridges above 100-year Mark . The bottom of bridge superstructure shall
be of sufficient height to allow unrestricted passage of water and debris during
100-year storms. As long as the bridge remains, the Permittee is responsible for
maintaining free-flowing conditions under the bridge and clearing of all debris.
Substantial changes to the bed, channel, or bank necessary for maintenance may
require an amendment to this Agreement or separate notification under Fish and
Game Code section 1602 subdivision (a).
2.37 Abutment Location. Abutments shall be located outside the stream banks and
above ordinary high water.
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2.38 No Bank Hardening. The Project shall not harden the banks of any streams. No
rock slope protection (e.g., riprap) or other form of bank armoring shall be installed.
Concrete and Cement-based Products
2.39 Cement Based Products. All cement-based products (concrete, mortar, etc.)
poured or applied wet onsite shall be excluded from the wetted channel or areas
where they may come into contact with water for a period of 30 days after
application. During that time the product shall be kept moist and runoff from the
product shall not be allowed to enter the stream. Commercial sealants may be
applied to the product surface or mixture where difficulty in excluding flow for a
long period may occur. If sealant is used, water shall be excluded from the site
until the sealant is cured.
2.40 Concrete – Primary Containment. The Permittee shall install the necessary
containment structures to control the placement of wet concrete and to prevent it
from entering the channel outside of those structures. No concrete shall be poured
within the high flow line if the 15-day weather forecast indicates any day with a
greater than 20% chance of rain.
2.41 Concrete – Designated Monitor. At all times when the Permittee is pouring or
working with wet concrete there shall be a designated monitor to inspect the
containment structures and ensure that no concrete or other debris enters into the
channel outside of those structures.
Erosion and Sediment Control
2.42 Erosion control. At no time shall silt laden runoff be allowed to enter a river,
stream, or lake or directed to where it may enter a river, stream, or lake. Erosion
control measures shall be utilized throughout all phases of operation where
sediment runoff from exposed slopes threatens to enter a river, stream, or lake.
Erosion control measures, such as, silt fences, straw hay bales, gravel or rock
lined ditches, water check bars, and broadcasted straw shall be used wherever
sediment has the potential to leave the work site and enter the river, stream, or
lake.
2.43 Monofilament. Permittee shall not use erosion control materials containing plastic
monofilament netting (erosion control matting) or similar material containing netting
within the project area due to documented evidence of amphibians and reptiles
becoming entangled or trapped in such material. Acceptable substitutes include
coconut coir matting or similar.
2.44 Excavation. No spoil from the excavation shall be placed on the bed or bank of
the stream. Excavated spoil shall be removed to an area where the sediment will
not deliver to a watercourse.
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2.45 Groundwater Encountered. Nuisance groundwater encountered during excavation
within the floodplain shall be discharged at a location where it will infiltrate into the
soil, resulting in no overland flow. Turbid water shall not be allowed to flow
downstream.
2.46 Erosion Control Monitoring. Permittee shall monitor erosion control measures
during and after each storm event and repair and/or replace ineffective measures
immediately.
2.47 Disposal and Removal of Materials. All removed spoils and construction debris
shall be moved outside the work area prior to inundation by water. Spoil sites shall
not be located within the stream channel or areas that may be subjected to stream
flows, where spoil may be washed back into a stream, or where it may impact
streambed habitat, aquatic or riparian vegetation. All removed material shall be
disposed of according to state and local laws and ordinances.
Equipment and Vehicles
2.48 Operating Equipment and Vehicle Leaks. Any equipment or vehicles driven and/or
operated adjacent to the stream shall be checked and maintained daily to prevent
leaks of materials that could be deleterious to aquatic and terrestrial life or riparian
habitat.
2.49 Stationary Equipment Leaks. Stationary equipment such as motors, pumps,
generators, and welders, located within or adjacent to the stream shall be
positioned over drip pans. Stationary heavy equipment shall have suitable
containment to handle a catastrophic spill/leak.
2.50 Equipment Storage. Staging and storage areas for equipment, materials, fuels,
lubricants, and solvents, shall be located outside of the stream channel and banks.
2.51 Refueling of Equipment. Refueling of construction equipment and vehicles may
not occur within 175 feet of any water body, or anywhere that spilled fuel could
drain to a water body. Tarps or similar material shall be placed underneath the
construction equipment and vehicles, when refueling, to capture incidental
spillage of fuels. Equipment and vehicles operating in the project area shall be
checked and maintained daily to prevent leaks of fuels, lubricants, or other
liquids.
Material Handling, Debris, and Waste
2.52 Stockpiled Materials. Building materials and/or construction equipment shall not be
stockpiled or stored where they may be washed into the water or cover aquatic or
riparian vegetation. Stockpiles shall be covered when measurable rain is
forecasted.
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2.53 No Dumping. Permittee and all contractors, subcontractors, and employees shall
not dump any litter or c onstruction debris within the stream, or where it may pass
into the stream.
2.54 Pick Up Debris. Permittee shall pick up all debris and waste daily.
2.55 Wash water. Water containing mud, silt, or other pollutants from equipment
washing or other activities, shall not be allowed to enter a lake or flowing stream or
placed in locations that may be subjected to high storm flows.
Toxic and Hazardous Material
2.56 Toxic Materials. Any hazardous or toxic materials that could be deleterious to
aquatic life that could be washed into the stream or its tributaries shall be
contained in watertight containers or removed from the project site.
2.57 Hazardous Materials. Debris, soil, silt, bark, slash, sawdust, rubbish, creosote-
treated wood, raw cement/concrete or washings thereof, asphalt, paint or other
coating material, oil or other petroleum products, or any other substances which
could be hazardous to aquatic life, wildlife, or riparian habitat resulting from the
project related activities shall be prevented from contaminating the soil and/or
entering the Waters of the State.
Spills and Emergencies
2.58 Spill Kits. Prior to entering the work site, all field personnel shall know the location
of spill kits and trained in their appropriate use.
2.59 Spill of Material Deleterious to Fish and Wildlife. In the event of a hazardous
materials spill into a stream (e.g., concrete or bentonite), Permittee shall
immediately notify the California Off ice of Emergency Services State Warning
Center by calling 1-800-852-7550 and immediately provide written notification to
CDFW by email at AskBDR@wildlife.ca.gov . Permittee shall take all reasonable
measures to document the extent of the impacts and affected areas including
photographic documentation of affected areas, injured fish and wildlife. If dead fish
or wildlife are found in the affected area, Permittee shall collect carcasses and
immediately deliver them to CDFW. Permittee shall meet with CDFW within ten
days of the reported spill in order to develop a resolution including: site clean -up,
site remediation and compensatory mitigation for the harm caused to fish, wildlife
and the habitats on which they depend as a result of the spill. The Permittee shall
be responsible for all spill clean-up, site remediation and compensatory mitigation
costs. Spill of materials to waters of the state that are deleterious to fish and
wildlife are in violation of Fish and Gam e Code section 5650 et seq. and are
subject to civil penalties for each person responsible. CDFW reserves the right to
refer the matter to the District Attorney’s Office if a resolution cannot be agreed
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upon and achieved within a specified timeframe, gener ally six months from the
date of the incident.
2.60 Spill Containment. All activities performed in or near a river, stream, or lake shall
have absorbent materials designated for spill containment and cleanup activities
on-site for use in an accidental spill. The Permittee shall immediately notify the
California Emergency Management Agency at 1-800-852-7550 and immediately
initiate the cleanup activities. CDFW shall be notified by the Permittee and
consulted regarding clean-up procedures.
3. Compensatory Measures
To compensate for adverse impacts to fish and wildlife resources identified above that
cannot be avoided or minimized, Permittee shall implement the measure listed below.
3.1 Mitigation Report and Credits. Permittee shall provide CDFW with a report with
mitigation location maps and description of mitigation areas at East Austin Creek
Conservation Bank at least 30 days prior to the start of Project activities for
CDFW’s acceptance. Once accepted by CDFW, Permittee shall purchase credits
and provide copies of the credit purchase agreements to CDFW prior to
commencement of Project activities, unless otherwise approved in writing by
CDFW. Permittee shall purchase stream credits at East Austin Creek Conservation
Bank equivalent to 6,039 square feet (0.138 acres) and 72 linear feet.
Other credits or mitigation activities than those described above may only be used
with prior written approval from CDFW and may require an amendment to this
Agreement.
4. Reporting Measures
Permittee shall meet each reporting requirement described below .
4.1 Notification Prior to Work . Per Measure 1.5, Notify CDFW Prior to Work, at least
five days prior to the start of Project activities, Permittee shall notify CDFW that
work will commence.
4.2 Notification of Designated Representative. Per Measure 1.9, Designated
Representative, at least five days prior to the start of Project activities, Permittee
shall submit to CDFW the name, business address, and contact information of the
Designated Representative.
4.3 Qualified Biologist Approval. Per Measure 2.7, CDFW-Approved Qualified
Biologist(s) and Monitor(s), no later than 14 days prior to Project activities
Permittee shall submit to CDFW, for review and approval, the qualifications for
the biologist(s) that shall oversee the implementation of the conditions in this
Agreement and conduct surveys or monitoring work .
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4.4 Survey Reports. Per Measures 2.17, 2.18, 2.19, 2.20, 2.21, 2.22, 2.23, 2.24, and
2.26 survey results for nesting birds and all other sensitive species shall be
submitted to CDFW for review and written acceptance prior to the start of work.
4.5 Photographic Documentation of Work. Prior to commencement of work a minimum
of four (4) vantage points that offer representative views of the Project site and
work areas shall be identified. The Permittee shall photograph the Project area
from each of the vantage points, noting the direction and magnification of each
photo. Upon completion of work, the Permittee shall photograph post -Project
conditions from the vantage points using the same direction and magnification as
pre-Project photos. A reference key shall be submitted with the photos describing
the location of the photo, the direction of the view, and whether the photo is pre - or
post-construction. All photos shall be submitted within 30 days of Project
conclusion.
4.6 Mitigation Report and Proof of Compensatory Mitigation. At least 30 days prior to
construction, Permittee shall submit a mitigation report identifying the specific
location(s) that will act as mitigation for the Project. Prior to construction, Permittee
shall provide proof of purchase of compensatory mitigation outlined in Measure
3.1.
4.7 Notification to the California Natural Diversity Database. If any listed, rare, or
special status species are detected during Project surveys or on or around the
Project site during Project activities, the Permittee shall submit CNDDB Field
Survey Forms to CDFW in the manner described at the CNDDB website
https://www.wildlife.ca.gov/Data/CNDDB/Submitting-Data) within five working
days of the sightings. Copies of such submittals shall also be submitted to the
CDFW regional office as specified below.
CONTACT INFORMATION
Any communication that Permittee or CDFW submits to the other shall be submitted
through EPIMS as instructed by CDFW.
To Permittee:
Vanessa Garrett
City of Rohnert Park
EPIMS-SON-15175-R3
Trail to Crane Creek Park
vgarrett@rpcity.org
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To CDFW:
Department of Fish and Wildlife
Region 3: Bay Delta Region
EPIMS-SON-15175-R3
Trail to Crane Creek Park
EPIMS.R3@wildlife.ca.gov ; amanda.culpepper@wildlife.ca.gov
LIABILITY
Permittee shall be solely liable for any violations of the Agreement, whether committed
by Permittee or any person acting on behalf of Permittee, including its officers,
employees, representatives, agents or contractors and subcontractors, to complete the
Project or any activity related to it that the Agreement authorizes.
This Agreement does not constitute CDFW’s endorsement of , or require Permittee to
proceed with the Project. The decision to proceed with the Project is Permittee’s alone.
SUSPENSION AND REVOCATION
CDFW may suspend or revoke in its entirety the Agreement if it determines that
Permittee or any person acting on behalf of Permittee, including its officers, employees,
representatives, agents, or contractors and subcontractors, is not in compliance with the
Agreement.
Before CDFW suspends or revokes the Agreement, it shall provide Permittee written
notice by certified or registered mail that it intends to suspend or revoke. The notice
shall state the reason(s) for the proposed suspension or revocation, provide Permittee
an opportunity to correct any deficiency before CDFW suspends or revokes the
Agreement, and include instructions to Permittee, if necessary, including but not limited
to a directive to immediately cease the specific activity or activities that caused CDFW
to issue the notice.
ENFORCEMENT
Nothing in the Agreement precludes CDFW from pursuing an enforcement action
against Permittee instead of , or in addition to, suspending or revoking the Agreement.
Nothing in the Agreement limits or otherwise affects CDFW's enforcement authority or
that of its enforcement personnel.
OTHER LEGAL OBLIGATIONS
This Agreement does not relieve Permittee or any person acting on behalf of Permittee,
including its officers, employees, representatives, agents, or contractors and
subcontractors, from complying with, or obtaining any other permits or authorizations
that might be required under, other federal, state, or local laws or regulations before
beginning the Project or an activity related to it. For example, if the Project causes take
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of a species listed as threatened or endangered under the Endangered Species Act
ESA), such take will be unlawful under the ESA absent a permit or other form of
authorization from the U.S. Fish and Wildlife Service or National Marine Fisheries
Service.
This Agreement does not relieve Permittee or any person acting on behalf of Permittee,
including its officers, employees, representatives, agents, or contractors and
subcontractors, from complying with other applicable statutes in the Fish and Game
Code including, but not limited to, Fish and Game Code sections 2050 et seq.
threatened and endangered species), section 3503 (bird nests and eggs), section
3503.5 (birds of prey), section 5650 (water pollution), section 5652 (refuse disposal into
water), section 5901 (fish passage), section 5937 (sufficient water for fish), and section
5948 (obstruction of stream).
Nothing in the Agreement authorizes Permittee or any person acting on behalf of
Permittee, including its officers, employees, representatives, agents, or contractors and
subcontractors, to trespass.
AMENDMENT
CDFW may amend the Agreement at any time during its term if CDFW determines the
amendment is necessary to protect an existing fish or wildlife resource.
Permittee may amend the Agreement at any tim e during its term , provided the
amendment is mutually agreed to in writing by CDFW and Permittee. To request an
amendment, Permittee shall log into EPIMS and submit to CDFW a completed CDFW
Amendment & Extension” form . Permittee shall include with the completed form ,
payment of the corresponding amendment fee identified in CDFW’s current fee
schedule (see Cal. Code Regs., tit. 14, § 699.5).
TRANSFER AND ASSIGNMENT
This Agreement may not be transferred or assigned to another entity, and any purported
transfer or assignment of the Agreement to another entity shall not be valid or effective,
unless the transfer or assignment is requested by Permittee in writing, as specified
below, and thereafter CDFW approv es the transfer or assignment in writing.
The transfer or assignment of the Agreement to another entity shall constitute a minor
amendment, and therefore to request a transfer or assignment, Permittee shall log into
EPIMS and submit to CDFW a completed CDFW “Amendment & Extension” form .
Permittee shall include with the completed form , payment of the minor amendment fee
identified in CDFW’s current fee schedule (see Cal. Code Regs., tit. 14, § 699.5).
EXTENSIONS
In accordance with Fish and Game Code section 1605, subdivision (b), Permittee may
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request one extension of the Agreement, provided the request is made prior to the
expiration of the Agreement’s term . To request an extension, Permittee shall log into
EPIMS and submit to CDFW a completed CDFW “Amendment & Extension’ form.
Permittee shall include with the completed form , payment of the extension fee identified
in CDFW’s current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). CDFW shall
process the extension request in accordance with Fish and Game Code section 1605,
subdivisions (b) through (e).
If Permittee fails to submit a request to extend the Agreement prior to its expiration,
Permittee must submit a new notification and notification fee before beginning or
continuing the Project the Agreement covers (Fish & G. Code § 1605, subd. (f)).
EFFECTIVE DATE
The Agreement becomes effective on the date of CDFW’s signature, which shall be: 1)
after Permittee’s signature; 2) after CDFW complies with all applicable requirements
under the California Environmental Quality Act (CEQA); and 3) after payment of the
applicable Fish and Game Code section 711.4 filing fee listed at
https://www.wildlife.ca.gov/Conservation/CEQA/Fees.
TERM
This Agreement shall expire on December 31, 2025, unless it is terminated or extended
before then. All provisions in the Agreement shall remain in force throughout its term .
Permittee shall remain responsible for implementing any provisions specified herein to
protect fish and wildlife resources after the Agreement expires or is terminated, as Fish
and Game Code section 1605, subdivision (a)(2) requires.
EXHIBITS
The documents listed below are included as exhibits to the Agreement and incorporated
herein by reference.
A. Exhibit A. Potential Impacts to Delineated Wetlands and Waters of the United
States , prepared by Dudek, dated December 18, 2020 and May 12, 2021.
B. Exhibit B. Improvement Plans: Trail to Crane Creek Regional Park , prepared by
Brelje & Race Consulting Engineers, dated April 20, 2021.
AUTHORITY
If the person signing the Agreement (signatory) is doing so as a representative of
Permittee, the signatory hereby acknowledges that he or she is doing so on Permittee’s
behalf and represents and warrants that he or she has the authority to legally bind
Permittee to the provisions herein.
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AUTHORIZATION
This Agreement authorizes only the Project described herein. If Permittee begins or
completes a Project different from the Project the Agreement authorizes, Permittee may
be subject to civil or criminal prosecution for failing to notify CDFW in accordance with
Fish and Game Code section 1602.
CONCURRENCE
Through the electronic signature by the permittee or permittee’s representative as
evidenced by the attached concurrence from CDFW’s Environmental Permit Information
Management System (EPIMS), the permittee accepts and agrees to comply with all
provisions contained herein.
The EPIMS concurrence page containing electronic signatures must be attached
to this agreement to be valid.
Version 1 uploaded August 12, 2021
Date: 12/18/2020 - Last saved by: rstrobridge - Path: Z:\Projects\j981000\j981019 Trail to Crane Creek\MAPDOC\WORKING\TrailtoCraneCreek_Jurisdictional_Impacts_Overview.mxdPotential Impacts to Delineated of Wetlands and Waters of the United States
Copeland Creek Regional Detention Basin and Trail Project
SOURCE: USDA NAIP Imagery (2016); Sonoma County GIS
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Approximate JD Impact AreasJurisdictional Waters
Ephemeral Drainage
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Top of Bank
Creek
Seasonal Wetland
Seasonal Wetland Swale
INTERNAL USE ONLY
Date: 5/12/2021 - Last saved by: rstrobridge - Path: Z:\Projects\j981000\j981019 Trail to Crane Creek\MAPDOC\WORKING\TrailtoCraneCreek_Jurisdictional_Impacts.mxdCopeland Creek Regional Detention Basin and Trail Project
SOURCE:
0 3015Feet
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1
Agreement for Sale of Riparian Habitat Mitigation
East Austin Creek Conservation Bank Site
This Agreement for Sale of Riparian Habitat Mitigation ("Agreement") is entered into this
_____ day of ________, 2022, between EAST AUSTIN LLC, a California Limited Liability
Company ("Seller") and City of Rohnert Park ("Buyer"). Buyer and Seller are collectively
referred to as "Parties."
RECITALS
A.Seller has developed the East Austin Creek Conservation Bank Mitigation Site
("Site") in Sonoma County, California, to establish, among other things, mitigation for riverine
and riparian habitat. The Site is subject to a Conservation Easement, attached as Exhibit A.
B.Buyer wishes to obtain 0.2 acre of habitat mitigation to fulfill mitigation
requirements for the Copeland Creek Trail to Crane Creek Regional Park Project
("Project"). The California Department of Fish and Wildlife under section 1602 of the California
Fish and Game Code and the North Coast Regional Water Quality Control Board through section
13260(a) of the California Water Code (Agencies) respectively issued a Streambed Alteration
Agreement (Alteration Agreement) No. EPIMS-SON-15175-R3 (Exhibit D) and General Waste
Discharge Requirements WQ Order No. 2004-004-DWQ for the Project. This habitat mitigation
fulfills conditions of both the Alteration Agreement and Certification to purchase 0.2 acre of
riparian habitat mitigation from the Seller, East Austin LLC.
C.Seller wishes to sell to Buyer, and Buyer wishes to purchase 0.2 acre of
riparian habitat mitigation from the Site ("Mitigation"), at a purchase price of Fifty-thousand
dollars ($50,000), (“Purchase Price”).
THE PARTIES AGREE AS FOLLOWS
1.Seller hereby affirms that, subject to the approval of the Water Resources Control
Board and California Department of Fish and Wildlife, it has the stated mitigation to sell and
agrees to sell to the Buyer and Buyer hereby agrees to purchase from Seller the Mitigation for
the Purchase Price. Upon payment of the purchase price by Buyer, Seller shall deliver to Buyer
an executed "Acknowledgment of Sale of Mitigation" in the manner and form attached hereto
and marked as Exhibit B, and a copy of the mitigation sales ledger provided to the permitting
agencies demonstrating the appropriate debit from the mitigation sales ledger. The purchase
price for said Mitigation shall be paid by check or according to written instructions provided by
Seller to Buyer.
2.The closing will occur on or before ___________, 2022, or such other date to
which the Buyer and Seller may mutually agree in writing (the "Closing Date"). The Closing
shall mean the date that the Purchase Price is delivered to Seller, or an escrow agent designated
by Seller.
Exhibit B to Resolution
2
Notwithstanding the foregoing, Buyer may accelerate the Closing Date.
3.The sale and transfer of Mitigation under this Agreement is not a sale or transfer
of a security, license, lease, easement, or possessory or non-possessory interest in real property,
nor the granting of any interest of the foregoing.
4.The Buyer has no obligation to support, pay for, monitor, report on, sustain,
continue in perpetuity, or otherwise be obligated or liable for the success or continued expense or
maintenance in perpetuity of the Mitigation sold to Buyer by Seller. The Seller shall be fully and
completely responsible for satisfying any and all conditions placed on the Mitigation or the Site
as described in Exhibit C, Interim Management Plan, Long-term Management Plan and
Endowment Funding and Management Agreement, which are extracted from the Conservation
Bank Enabling Instrument. The Seller shall indemnify the Buyer for all such obligations, and this
indemnification shall not be terminated by the completion of the purchase contemplated in this
Agreement.
5.Seller represents and warrants to Buyer that Seller agrees not to enter into any
agreement that would "over-sell" the interest in the Site or diminish the Mitigation allocated to
Buyer under this Agreement.
6.This Agreement shall be governed by the laws of the State of California. Any
action at law or equity brought in connection with this Agreement shall be filed in the Superior
Court for the County of Sonoma. In any action brought by Buyer against Seller relating in any
way to this Agreement (whether breach of contract, tort, or otherwise), Seller’s liability shall be
limited to the Purchase Price.
7.If any legal dispute arises under this Agreement, the prevailing Party shall
recover, as an element of its costs of suit, its reasonable attorney's fees and costs, including
expert witness fees, from the other Party. A Party not entitled to recover its costs of suit shall
not recover attorney's fees.
8.This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which taken together shall constitute one and the same
instrument.
9.Seller has the power and authority to own, and does own, the Mitigation, and the
power and authority to consummate the sale of Mitigation as contemplated by this Agreement,
and the persons executing this Agreement have the full authority to bind Seller. This Agreement
and all instruments, including assignment and/or conveyance documents to be executed by Seller
in connection herewith are or when delivered to Buyer will be duly authorized, executed and
delivered by Seller and will be valid, binding and enforceable obligations of Seller.
10.The undersigned, signing on behalf of Buyer, has the power and authority to
consummate the purchase of Mitigation as contemplated by this Agreement, and the persons
executing this Agreement have the full authority to bind Buyer. This Agreement and all
3
instruments are or when delivered to Seller will be duly authorized, executed and delivered by
Buyer and will be valid, binding, and enforceable obligations of Buyer.
11.Notwithstanding the last sentence of provision B. (“This habitat mitigation
fulfills…”), or the first sentence of provision 1. (“Seller hereby affirms…”), Buyer
acknowledges and agrees that:
(a) it is the Buyer’s sole responsibility to determine that the Mitigation fulfills the
conditions of both the Alteration Agreement and Certification, and that any completed sale of the
Mitigation shall be final; and (b) no representations or warranties have been made or are made
and no responsibility has been or is assumed by Seller or by any officer, agent, affiliate, attorney,
or representative acting or purporting to act on behalf of Seller as to (i) the mitigation value or
mitigation requirements of Buyer, or (ii) the acceptance of the Mitigation by the Agencies or any
other governmental agency as mitigation for the loss of habitat values associated with Buyer’s
Project.
12.Any notice required or permitted to be made or given under this Agreement shall
be made and delivered to the parties at the addresses set forth below each party's respective
signature. All notices shall be in writing and shall be deemed to have been given when delivered
by courier, when transmitted by facsimile (upon confirmation of successfully completed
transmission), or delivered by email message, or upon the expiration of two (2) business days
after the date of deposit of such notice in the United States mail, registered or certified mail,
postage prepaid.
13.The Recitals set forth at the beginning of this Agreement are deemed incorporated
herein, and the parties hereto represent they are true, accurate and correct.
Purposely Left Blank
4
IN WITNESS WHEREOF, the Parties have executed this Agreement,
SELLER:
EAST AUSTIN LLC, a California limited liability company
By: ____________________________________________
Name: Ms. Nancy Summers
Its: Manager
Address: P.O. Box 670
Kenwood, CA 95452
Telephone: (707) 833 5027
Email: summersng@comcast.net
BUYER:
CITY OF ROHNERT PARK
By: ____________________________________
Name: __________________________________
Its: ____________________________________
Address: 130 Avram Avenue
Rohnert Park, CA 94928
Attention: Vanessa Garrett, Public Works Director
Telephone: 707-588-2251
Email: vmarin@rpcity.org
CDFW Agreement EPIMS-SON-15175-R3
RWQCB WQ Order No. 2004-004-DWQ
Exhibit A
Exhibit B
Exhibit B
East Austin Creek Conservation Bank Mitigation Site
Acknowledgment of Sale of Mitigation
The undersigned seller hereby acknowledges that it has sold and conveyed to CITY OF
ROHNERT PARK ("Buyer"), 0.2 acre of habitat mitigation from the East Austin Creek
Conservation Bank Mitigation Site for the Copeland Creek Trail to Crane Creek Regional
Park Project. All terms of this conveyance shall be governed by the provisions of the
Agreement for Sale of Riparian Habitat Mitigation between Buyer and the undersigned dated
September 15, 2021.
Seller:
East Austin, LLC, a California limited liability company:
By:___________________________________
Name: Ms. Nancy Summers
Its: Owner
P.O. Box 670
Kenwood, CA 95452
Telephone: (707) 833-5027
Fax: (707) 833-2805
Email: nancy@eastaustinbank.com
CDFW Action
RWQCB Action
Exhibit C
Exhibit D
Ver. EPIMS 09/01/2020
CALIFORNIA DEPARTMENT OF FISH AND WILDLIFE
BAY DELTA REGION
2825 CORDELIA ROAD , SUITE 100
FAIRFIELD, CA 94534
(707) 428-2002
STREAMBED ALTERATION AGREEMENT
EPIMS-SON-15175-R3
COPELAND CREEK AND UNNAMED TRIBUTARIES TO HINEBAUGH CREEK
CITY OF ROHNERT PARK
TRAIL TO CRANE CREEK PARK
This Streambed Alteration Agreement (Agreement) is entered into between the
California Department of Fish and Wildlife (CDFW) and City of Rohnert Park (Permittee)
as represented by Vanessa Garrett.
RECITALS
WHEREAS, pursuant to Fish and Game Code section 1602, Permittee notified CDFW
on February 18, 2021, and provided subsequent documents, that Permittee intends to
complete the Project described herein.
WHEREAS, pursuant to Fish and Game Code section 1603, CDFW has determined
that the Project could substantially adversely affect existing fish or wildlife resources
and has included measures in the Agreement necessary to protect those resources.
WHEREAS, Permittee has reviewed the Agreement and accepts its terms and
conditions, including the measures to protect fish and wildlife resources.
NOW THEREFORE, Permittee agrees to complete the Project in accordance with the
Agreement.
PROJECT LOCATION
The Project is located at Copeland Creek and two unnamed tributaries to Hinebaugh
Creek, east of the City of Rohnert Park in unincorporated County of Sonoma, State of
California (Exhibit A). The Assessor’s Parcel Number is 047-132-038-000.
Location 1, at Copeland Creek, is located approximately 0.25 miles south of the
intersection of Petaluma Hill Road and Rohnert Park Expressway at Latitude
38.34238°N, Longitude 122.66658°W.
Location 2, at an unnamed tributary to Hinebaugh Creek, is located approximately 0.53
miles southwest of the intersection of Pressley Road and Oak Springs Lane at Latitude
38.34275°N, Longitude 122.64868°W.
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Location 3, at an unnamed tributary to Hinebaugh Creek, is located approximately 0.41
miles southwest of the intersection of Pressley Road and Oak Springs Lane at Latitude
38.34476°N, Longitude 122.64788°W.
PROJECT DESCRIPTION
The Project is limited to constructing three pedestrian bridges (Exhibit B):
1. At Location 1, an approximately 8-foot-wide, 90-foot-long arch steel truss clear-
span bridge will be installed over Copeland Creek. Concrete abutments and
associated concrete piles will be installed to a depth of approximately 17 feet.
Bridge installation will permanently impact approximately 1,542 square feet and 8
linear feet of stream habitat.
2. At Location 2, an approximately 8-foot-wide, 14-foot-long clear-span foot bridge
will be installed over an unnamed tributary to Hinebaugh Creek. Concrete
abutments will be installed to a depth of approximately 1.5 feet. Foot bridge
installation will permanently impact approximately 317 square feet and 8 linear
feet of stream habitat.
3. At Location 3, an approximately 8-foot-wide, 14-foot-long clear-span foot bridge
will be installed over an unnamed tributary to Hinebaugh Creek. Concrete
abutments will be installed to a depth of approximately 1.5 feet. Foot bridge
installation will permanently impact approximately 154 square feet and 8 linear
feet of stream habitat.
The Project will permanently impact 2,013 square feet (0.046 acres) and 24 linear feet
of stream habitat through infrastructure installation and overwater shading. No trees will
be removed. Impacts will be mitigated off site at a 3:1 mitigation to impact ratio.
PROJECT IMPACTS
Existing f ish or wildlife resources the Project could substantially adversely affect include:
• Coho salmon South of Punta Gorda (Oncorhynchus kisutch pop. 4), State listed
as endangered and Central California Coast Evolutionarily Significant Unit
Federally listed as endangered
• Central California Coast steelhead (Oncorhynchus mykiss irideus pop. 8),
Federally listed as threatened
• California tiger salamander (Ambystoma californiense), State listed as threatened
and Sonoma County Distinct Population Segment Federally listed as endangered
• California red-legged frog (Rana draytonii), Federally listed as threatened,
California Species of Special Concern (SSC)
• Sonoma Alopecurus (Alopecurus aequalis var. sonomensis ), Federally
endangered and California Rare Plant Rank (CRPR)1 1B.1
1 CRPR rank definitions are available in CDFW’s Special Vascular Plants, Bryophytes, and Lichens List
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• Two-fork clover (Trifolium amoenum), Federally endangered and CRPR 1B.1
• Franciscan onion (Allium peninsulare var. franciscanum), CRPR 1B.2
• Napa false indigo (Amorpha californica var. napensis ), CRPR 1B.2
• Bent-flowered fiddleneck (Amsinckia lunaris ), CRPR 1B.2
• Pappose tarplant (Centromadia parryi ssp. parryi), CRPR 1B.2
• Fragrant fritillary (Fritillaria liliacea), CRPR 1B.2
• Congested-headed hayfield tarplant (Hemizonia congesta ssp. congesta), CRPR
1B.2
• Jepson’s leptosiphon (Leptosiphon jepsonii), CRPR 1B.2
• Golden eagle (Aquila chrysaetos ), Fully Protected species
• White-tailed kite (Elanus leucurus ), Fully Protected species
• Foothill yellow-legged frog (Rana boylii), Northwest/North Coast clade, SSC
• California giant salamander (Dicamptodon ensatus ), SSC
• Burrowing owl (Athene cunicularia), SSC
• Western pond turtle (Emys marmorata), SSC
• American badger (Taxidea taxus ), SSC
• Western bumble bee (Bombus occidentalis), California Terrestrial and Vernal
Pool Invertebrate of Conservation Priority (ICP)2
• Riparian habitat
• Common aquatic and terrestrial species
The adverse effects the Project could have on the fish or wildlife resources identified
above include:
• Permanent loss of riparian habitat
• Permanent modification of aquatic habitat
• Colonization by exotic plant species
• Increased turbidity
• Change in composition
• Short term release of contaminants
• Soil compaction or other disturbance to soil layer
• Loss of aquatic and terrestrial wildlife species
• Disruption of nesting birds and other wildlife
• Disturbance from Project activities
(https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=109383&inline ) and on the California Native Plant
Society website (https://www.cnps.org/rare-plants/cnps -rare-plant-ranks).
2 The list of California Terrestrial and Vernal Pool Invertebrates of Conservation Priority was collated
during CDFW’s Scientific Collecting Permit rulemaking process:
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=157415&inline
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MEASURES TO PROTECT FISH AND WILDLIFE RESOURCES
1. Administrative Measures
Permittee shall meet each administrative requirement described below.
1.1 Documentation at Project Site. Permittee shall make the Agreement, any
extensions and amendments to the Agreement, and all related notification
materials and California Environmental Quality Act (C EQA) documents, readily
available at the Project site at all times and shall be presented to CDFW personnel,
or personnel from another state, federal, or local agency upon request.
1.2 Providing Agreement to Persons at Project Site. Permittee shall provide copies of
the Agreement and any extensions and amendments to the Agreement to all
persons who will be working on the Project at the Project site on behalf of
Permittee, including but not limited to contractors, subcontractors, inspectors, and
monitors.
1.3 Notification of Conflicting Provisions. Permittee shall notify CDFW if Permittee
determines or learns that a provision in the Agreement might conflict with a
provision imposed on the Project by another local, state, or federal agency . In that
event, CDFW shall contact Permittee to resolve any conflict .
1.4 Project Site Entry . Permittee agrees that CDFW personnel may enter the Project
site at any time to verify compliance with the Agreement.
1.5 Notify CDFW Prior to Work. The Permittee shall notify CDFW by email at least five
working days prior to commencement of covered activities. See contact information
below.
1.6 No Trespass. To the extent that any provisions of this Agreement provide for
activities that require the Permittee to traverse another owner's property, such
provisions are agreed to with the understanding that the Permittee possesses the
legal right to so traverse. In the absenc e of such right, any such provision is void.
1.7 Unauthorized Take. The Permittee is required to comply with all applicable state
and f ederal laws, including the California Endangered Species Act (CESA) and
f ederal Endangered Species Act. This Agreement does not authorize the take3 of
any state or f ederal endangered or threatened species. Liability for any take or
incidental take of such listed species remains the responsibility of the Permittee for
the duration of the Project. Any unauthorized take of such listed species may result
in prosecution and nullification of the Agreement.
3 Take, as defined in Fish and Game Code section 86, means hunt, pursue, catch, capture, or kill, or
attempt to hunt, pursue, catch, capture, or kill. Take, as defined in title 16 of U.S. Code section 1532
subsection 19, means harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt
any of those activities.
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1.8 Fish Passage. The Project shall comply with Fish and Game Code section 5901
and shall not install or maintain any device or contrivance that prevents, impedes,
or tends to prevent or impede, the passing of fish4 up and down stream.
1.9 Designated Representative. Before initiating ground-disturbing Project activities,
Permittee shall designate a representative (Designated Representative)
responsible for communications with CDFW and overseeing compliance with this
Agreement. The Permittee shall notify CDFW in writing five days prior to
commencement of Project activities of the Designated Representative’s name,
business address, and contact information. Permittee shall notify CDFW in writing
if a substitute Designated Representative is selected or identified at any time
during the term of this Agreement.
2. Avoidance and Minimization Measures
To avoid or minimize adverse impacts to fish and wildlife resources identified above,
Permittee shall implement each measure listed below.
Work Period and Design
2.1 Work Period. All work shall begin on or after June 15 and all work shall be
completed by October 15. Revegetation work is not limited to this work window but
must be completed within the same season as Project activities.
2.2 Work Period Modification. If a work period modification is needed, the work may be
permitted outside of the work period by a CDFW representative who reviewed the
Project, or if unavailable, through contact with the Regional Office at (707) 428-
2002. Permittee shall submit a written request for a work period variance on a
week -by -week basis to CDFW. The work period variance request should consider
the effects of noise, increased stream flows, rain delays, increased erosion control
measures, limited access due to saturated soil conditions, and limited growth of
erosion control grasses due to cool weather. Work period variances are issued at
the discretion of CDFW. CDFW reserves the right to require additional measures to
protect fish and wildlife resources as a condition for granting the variance. At
minimum, the work period variance request shall:
1) Describe the extent of work already completed.
2) Detail the activities that remain to be completed.
3) Provide a National Weather Service forecast covering the time needed,
up to one week, to com plete a phase or activity.
4) Detail the time required to complete each of the remaining activities.
5) Provide photographs of both the completed and proposed work sites.
6) Include an assessment of additional biological impacts as a result of the
work extension.
4 Fish, as defined in Fish and Game Code Section 45, means a wild fish, mollusk, crustacean,
invertebrate, amphibian, or part, spawn, or ovum of any of those animals.
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2.3 Conduct Work During Daylight Hours. Work is restricted to daylight hours (one
hour after sunrise to sunset).
2.4 Work According to Documents. Except as they are contradicted by measures
required by this Agreement, all work shall be conducted in conformance wi th the
project description above and the avoidance, minimization, and mitigation
measures provided in the notification package.
2.5 Work According to Plans. All work shall be completed according to the plans
submitted to CDFW titled Improvement Plans: Trail to Crane Creek Regional Park ,
prepared by Brelje & Race Consulting Engineers, dated April 20, 2021 (Exhibit B).
If the Permittee finds it necessary to update project plans prior to construction, the
updated plans shall be submitted to CDFW at least 30 days prior to beginning
Project activities to determine if an Amendment to this Agreement is required.
Project activities shall not proceed until CDFW has accepted the updated plans in
writing. At the discretion of CDFW, minor plan modifications may require an
amendment to this Agreement. At the discretion of the CDFW, if substantial
changes are made to the original plans this Agreement becomes void and the
Permittee shall submit a new notification.
Weather Restrictions
2.6 Work Period in Dry Weather Only. Project work shall be restricted to dry weather,
as allowed during the work period specified in Measure 2.1 , and when no flowing
water is present. The Permittee shall monitor forecasted precipitation. When a
0.25-inch or more of precipitation is forecasted to occur, the Permittee shall stop
work before precipitation commences. No Project activity may be started if its
associated erosion control measures cannot be completed prior to the onset of
precipitation. After any storm event, the Permittee shall inspect all sites currently
under construction and all sites scheduled to begin construction within the next
72 hours for erosion and sediment problems and take corrective action as
needed. Seventy -two-hour weather forecasts from the National Weather Service
shall be consulted and work shall not resume until runoff ceases and there is
less than a 30 percent forecast for precipitation for the following 24-hour period.
Weather forecasts shall be documented upon request by CDFW.
Qualified Biologist(s) and Biological Monitor(s)
2.7 CDFW-Approved Qualified Biologist(s) and Monitor(s). At least 14 days prior to the
start of Project activities, Permittee shall submit to CDFW for written approval, the
names and resumes of all Qualified Biologists and Biological Monitors involved in
conducting surveys and/or monitoring work.
• A Qualified Biologist is an individual who holds a bachelor’s degree from an
accredited university and: 1) is knowledgeable in relevant species’ life histories
and ec ology, 2) can correctly identify relevant species, 3) has conducted field
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surveys for relevant species, 4) is familiar with relevant survey protocols, and 5)
is knowledgeable of state and federal laws regarding the protection of sensitive
species.
• A Biological Monitor is an individual who shall have academic and professional
experience in biological sciences and related resource management activities
as it pertains to this Project, experience with construction -level Biological
Monitoring, be able to recognize species that may be present within the Project
area, and be familiar with the habitats and behavior of those species.
2.8 CDFW Approved Qualified Biologist or Biological Monitor On-site. A Qualified
Biologist or Biological Monitor shall be on site daily to monitor compliance with all
conditions of this Agreement unless otherwise approved in writing by CDFW .
Qualified Biologist or Biological Monitor shall have the authority to halt project
activities, through communication with the Project Manager or their on-site
designee, to comply with the terms of this Agreement and otherwise avoid impacts
to species and or habitats. If the on-site Biologist has requested a work stop due
to f ailure to implement any of the conditions, CDFW shall be contacted within 24
hours.
General Wildlife Protection and Prevention
2.9 Special-Status Species Survey. A Qualified Biologist, approved by CDFW for this
project, shall conduct a pre-construction survey within 48 hours prior to the start
of project activities, focusing on the presence of special-status species. If any
special-status species are discovered dur ing the survey, project activities shall not
begin until CDFW has been consulted with regarding avoidance and minimization
measures to avoid impacts to special-status species.
2.10 Training Session for Personnel. Permittee shall ensure that a CDFW-approved
Qualified Biologist conducts an education program for all persons employed on the
Project prior to performing covered activities. Instruction shall consist of a
presentation by the designated Qualified Biologist that includes a discussion of the
biology and general behavior of any sensitive species which may be in the area,
how they may be encountered within the work area, and procedures to follow when
they are encountered. The status of CESA -listed species, including legal
protection, penalties for violations, and Project-specific protective measures
provided in this Agreement shall be discussed. Interpretation shall be provided for
non-English speaking workers, and the same instruction shall be provided for any
new workers prior to on-site Project activity. Copies of the Agreement for this
Project shall be maintained at the worksite with the Project supervisor. Permittee or
Qualified Biologist shall prepare and distribute wallet-sized cards or a factsheet
handout containing this information for workers to car ry on-site. Upon completion
of the program, employees shall sign an affidavit stating they attended the program
and understand all protection measures. These forms shall be filed at the
Permittee’s office and be available to CDFW upon request.
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2.11 Daily Inspections. At the beginning of each workday and prior to construction
activities beginning, the work areas, equipment and material left onsite, and any
access routes into the work area and nearby vicinity, shall be inspected by a
Biological Monitor or qualified person approved in writing by CDFW for the
presence of special-status species, roosting bats, nesting birds, or other wildlife. If
any species is detected, CDFW shall be notified and construction activities shall
not begin until the species has left the site of its own volition, or CDFW provides
written permission to proceed.
2.12 Wildlife Encounters. If any wildlife is encountered during the course of
construction, all work in the immediate area shall cease and said wildlife shall be
allowed to leave the construction area unharmed. If any listed fish and wildlife
are encountered, the Permittee shall contact CDFW immediately.
2.13 Trenches and Holes. At the end of each workday all trenches and holes greater
than one foot deep shall be completely covered with a material flush with the
ground to prevent wildlife from entering. When trenches cannot be fully covered,
an escape ramp shall be placed at each end of any constructed open trench to
allow any wildlife that may have become entrapped in the trench to climb out
overnight. The ramp may be constructed of either dirt fill or wood planking or other
suitable material that is placed at an angle no greater than 30 degrees.
2.14 Pipes, Hoses, and Similar Structures. All pipes, hoses, or similar structures less
than 12 inches in diameter shall be closed or covered to prevent animal entry. All
construction pipes or similar structures greater than 2 inches in diameter stored at
the Project site overnight shall be inspected thoroughly for wildlife before the pipe
or similar structure is buried, capped, used, or moved.
2.15 No Excavation in Stream. No excavation shall occur below the top-of -bank of any
streams.
2.16 No Equipment in Stream. No equipment shall be operated within the live stream or
within the stream channel below the level of top-of -bank.
California Tiger Salamander Avoidance
2.17 California Tiger Salamander Avoidance. The Project shall not impact California
tiger salamanders or their potentially occupied habitat. No more than two week s
prior to commencement of Project activities within California tiger salamander
habitat, a Qualified Biologist shall flag potential burrows within and adjacent to the
Project area and access routes for avoidance including a minimum 10-foot
avoidance buffer, or larger as determined by the Qualified Biologist. If burrows
cannot be avoided, Project activities may not commence until the Permittee has
consulted with CDFW and obtained an Incidental Take Permit , unless otherwise
approved by CDFW. If California tiger salamanders are observed in the Project
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area, work shall immediately stop and shall not proceed until written approval from
CDFW is obtained. If take of California tiger salamander could occur, the Permittee
shall apply for and obtain an Incidental Take Permit from CDFW. Impacts to
CESA and federal Endangered Species Act (ESA) listed species such as
California tiger salamander require authorization pursuant to CESA and ESA
from CDFW and the U.S. Fish and Wildlife Service (USFWS) prior to Project
start.
2.18 Documentation of Burrow Avoidance. The Qualified Biologist shall conduct an
additional survey for California tiger salamander refugia such as small mammal
burrows and soil cracks within 48 hours and immediately prior to Project
commencement. Photographs of the Project impact area including access routes
from the 48-hour pre-Project survey that clearly demonstrate the area is devoid of
California tiger salamander refugia shall be provided to CDFW prior to Project
start.
California Red-legged Frog Protection
2.19 California Red-legged Frog Habitat Feature Assessment and Surveys. At least two
weeks prior to the commencement of ground-disturbing activities, the Project area
and nearby vicinity, including a minimum 500-foot radius surrounding the Project
area, shall be assessed by a Qualified Biologist for the presence of California red-
legged frog individuals and habitat features. Habitat features include both aquatic
habitat such as plunge pools and ponds and terrestrial habitat such as burrows.
The results of the habitat feature assessment shall be submitted to CDFW via
EPIMS or email (see Contact Information) for written acceptance prior to starting
Project activities. If habitat features are identified in the P roject area they shall be
flagged for avoidance with a feature-specific buffer distance determined by the
Qualified Biologist. If California red-legged frogs are encountered during the
assessment or Project activities, the Project shall not proceed or all work shall
cease, and CDFW shall immediately be notified. Work shall not proceed until the
frog, through its own volition, moves out of harm’s way and CDFW has provided
permission in writing to proceed with the Project. Impacts to California red-
legged frog require authorization from the USFWS pursuant to ESA.
Burrowing Owl Protection
2.20 Burrowing Owl. If Project-related activities are scheduled during the wintering
season for burrowing owls (September 1 to January 31), prior to beginning work on
this Project, a Qualified Biologist shall conduct a habitat assessment and survey s
for burrowing owl, if suitable habitat is present, within 500 meters (1,640 feet) of
the Project site. Surveys shall be consistent with the methods outlined in CDFW’s
Staff Report on Burrowing Owl Mitigation5 . Four survey visits shall occur at least 3
weeks apart prior to Project start. The final monthly survey shall be conducted no
5 Department of Fish and Game, 2012.
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=83843&inline
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less than 14 days prior to the start of Project activities with a final survey focused
on previously identified habitat conducted 24 hours prior to ground-disturbing
activities. Survey results shall be submitted to CDFW for review and acceptance
prior to starting Project activities. If the Qualified Biologist identifies burrowing owls ,
they will recommend a no disturbance buffer for written acceptance by CDFW, and
the Permittee shall implement the buffer.
Foothill Yellow -legged Frog Protection
2.21 Foothill Yellow-legged Frog Surveys. No more than two weeks prior to ground-
disturbing activities, the Project area and nearby vicinity, including a minimum 500
feet upstream and downstream, shall be surveyed for foothill yellow-legged frogs
by a Qualified Biologist, including searching cavities under rocks, within vegetation
such as sedges and other clumped vegetation, and under undercut banks. The
results of the survey shall be submitted to CDFW via EPIMS or email (see Contact
Information) for written acceptance prior to starting Project activities. If foothill
yellow-legged frogs are encountered during the surveys or Project activities, the
Project shall not proceed or all work shall cease until the frog, through its own
volition, moves out of harm’s way or CDFW has provided permission in writing to
proceed with the Project. If foothill yellow-legged frog is found, the Permittee shall
install exclusionary fencing around the work area to limit frogs entering this area, at
the discretion of CDFW.
Western Pond Turtle Protection
2.22 Western Pond Turtle Surveys. Within two weeks prior to the commencement of
ground-disturbing activities, a Qualified Biologist shall perform surveys for western
pond turtles within aquatic and upland habitat at the Project site. Surveys shall
encompass individual turtles and nest sites. If a pond turtle is detected at any time
CDFW shall be notified immediately. Survey results shall be submitted to CDFW
prior to construction activities. All western pond turtles observed on-site shall be
avoided and allowed to leave the Project area of their own volition or may be
relocated with prior written approval from CDFW. Any turtle nest sites shall be
avoided with an appropriate buffer identified by a Qualified Biologist and accepted
by CDFW. If pond turtles or their nests are found, the Permittee shall prepare and
implement a Pond Turtle Habitat Improvement Plan or other protection measures,
if required by CDFW.
American Badger Protection
2.23 American Badger Surveys. A Qualified Biologist shall conduct a pre-construction
survey for the American badger and suitable dens within 48 hours of the
commencement of Project activities. The survey area shall include the Project area
and a 50-foot buffer zone within suitable habitat. If badger dens are found on or
adjacent to the Project site, a minimum 50-foot construction avoidance buffer shall
be established around the den and CDFW shall be immediately notified. The
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avoidance buffer may be increased in consultation with the Qualified Biologist and
CDFW if needed to avoid potential disturbance. If impact to badgers cannot be
avoided, the Permittee shall prepare and implement a Badger Relocation and
Habitat Improvement Plan approved in writing by CDFW prior to project start.
Special-Status Plant Protection
2.24 Pre-Project Special-Status Plant Surveys. A Qualified Biologist shall conduct
botanical surveys during the appropriate blooming period for all special-status
plants that have the potential to occur in or near the Project during the appropriate
season and conditions prior to the start of construction. More than one year of
surveys may be necessary. Surveys shall be conducted following CDFW’s Protocol
for Surveying and Evaluating Impacts to Special Status Native Plant Populations
and Sensitive Natural Communities . Surveys shall be submitted to CDFW for
written approval prior to the start of construction. If special -status plants are
observed, the Project shall fully avoid direct and indirect impacts to all individuals.
If full avoidance is not possible, the Permittee shall implement additional protection
measures, if required by CDFW. If ESA listed species such as two-fork clover or
Sonoma alopecurus are observed, CDFW and USFWS shall be immediately
notified and individual plants shall be completely avoided, unless otherwise
approved in writing by CDFW. Impacts to ESA listed plants require
authorization from USFWS.
Nesting Bird Surveys, Prohibitions, and Buffers
2.25 Breeding Bird Nest Take Prohibition. Permittee shall avoid active nests occurring
at or near the Project site. Permittee is responsible for complying with Fish and
Game Code section 3503 et seq. and the Migratory Bird Treaty Act of 1918.
2.26 Nesting Bird Surveys. If construction, grading, vegetation removal, or other Project-
related activities are scheduled during the nesting season, February 1 to August
31, a focused survey for active nests shall be conducted by a Qualified Biologist
within 7 days prior to the beginning of Project-related activities. The results of the
survey shall be sent to CDFW through EPIMS and via email prior to the start of
Project activities, for review and acceptance (see Contact Information). If an active
nest is found, Permittee shall consult with CDFW regarding appropriate action to
c omply with Fish and Game Code. If a lapse in Project-related work of 7 days or
longer occurs, another focused survey and, if needed, consultation with CDFW,
shall be required before Project work can be reinitiated.
2.27 Active Nest Buffers. If an active nest is found during surveys, Permittee or the
Qualified Biologist shall consult with CDFW regarding appropriate action to comply
with state and federal laws. Active nest sites shall be designated as “Ecologically
Sensitive Areas” (ESA) and protected (while occupied) during Project work by
demarking a “No Work Zone” around each nest site.
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• Buffer distances for bird nests shall be site specific and an appropriate
distance, as determined by a Qualified Biologist. The buffer distances shall be
specified to protect the bird’s normal behavior to prevent nesting failure or
abandonment. The buffer distance recommendation sh all be developed after
field investigations that evaluate the bird(s) apparent distress in the presence of
people or equipment at various distances. Abnormal nesting behaviors which
may cause reproductive harm include, but are not limited to, defensive
flights/vocalizations directed towards Project personnel, standing up from a
brooding position, and flying away from the nest. The Qualified Biologist and
Biological Monitor shall have authority to order the cessation of all nearby
Project activities if the nesting birds exhibit abnormal behavior which may
cause reproductive failure (nest abandonment and loss of eggs and/or young)
until an appropriate buffer is established.
• The Qualified Biologist shall monitor the behavior of the birds (adults and
young, when present) at the nest site to ensure that they are not disturbed by
project work. Nest monitoring shall continue during project wo rk until the young
have fully fledged (have completely left the nest site and are no longer being
fed by the parents), as determined by the Qualified Biologist.
2.28 Nesting Habitat Removal or Modification. No habitat removal or modification shall
occur within the ESA-marked nest zone (see above measure) until the young have
fully fledged and will no longer be adversely affected by the Project, as determined
by a Qualified Biologist or Biological Monitor . Any trees or shrubs that are removed
shall be “downed” in such a manner as to minimize disturbance to stable soil
conditions.
Vegetation Protection, Prevention, and Restoration
2.29 Habitat Protection. Disturbance or removal of vegetation shall not exceed the
minimum necessary to complete the Project. Vegetation outside the construction
corridor shall not be removed or damaged without prior consultation and approval
of a CDFW representative.
2.30 Vegetation Marked for Protection. Prior to project activities, the Permittee shall
clearly mark all vegetation within the project area that shall be avoided during
project activities.
2.31 Riparian Tree Protection. No trees shall be removed unless otherwise approved
in this Agreement or in writing by CDFW. For each existing tree with a greater than
four-inch diameter at breast height (DBH) within or adjacent to the work area, a
critical root zone shall be established by the Qualified Biologist. The critical root
zone shall extend from the trunk to the drip-line (i.e., the outer extent of the tree
canopy) of each tree within the project area and shall be flagged or fenced off from
work. Protection and avoidance of the critical root zone shall be emphasized
during the on-site education program to avoid impacts. If work will be conducted
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within the root protection zone of a tree, then that tree shall be considered an
“impacted tree” and the Permittee or Qualified Biologist shall monitor the tree for
signs of mortality as a result of the Project. If the tree becomes injured or shows
signs of mortality, additional revegetation actions shall be required.
2.32 Tree Drip Line. Construction materials, equipment storage, and parking areas
shall be located outside the drip line of any preserved tree. Construction
equipment shall not cause root compaction.
2.33 Treat Exposed Areas. All exposed/disturbed areas and access points within the
riparian zone left barren of vegetation as a result of the construction activities shall
be restored by seeding with a blend of native erosion control grass seed. Seeded
areas shall be mulched. Landscape fabric shall not be used. Revegetation shall be
completed as soon as possible after construction activities in those areas cease.
Seeding placed after October 15 must be covered with broadcast straw, jute
netting, coconut fiber blanket or similar erosion control blanket.
2.34 Control Invasive Species. Permittee is responsible for monitoring and if needed,
eradication of invasive exotic species that may occur within the Project area for a
minimum of two years following construction. All revegetation efforts shall include
local plant materials native to the Project area.
2.35 Allowable Herbicide. If herbicide use is necessary, only herbicides registered with
the California Department of Pesticide Regulation shall be used. All herbicides
shall be applied in accordance with regulations set forth by the Californi a
Department of Pesticide Regulation and according to label instructions. Only
herbicides approved for use in aquatic environments are permitted. Care shall be
taken to avoid herbicide contact with native vegetation, and it shall only be applied
on calm days (wind speed less than 5 miles per hour) to prevent airborne transfer
of herbicide. No herbicides shall be used where threatened or endangered species
occur, unless otherwise approved in writing by CDFW.
Bridge Design and Construction
2.36 Bottom of Bridges above 100-year Mark . The bottom of bridge superstructure shall
be of sufficient height to allow unrestricted passage of water and debris during
100-year storms. As long as the bridge remains, the Permittee is responsible for
maintaining free-flowing conditions under the bridge and clearing of all debris.
Substantial changes to the bed, channel, or bank necessary for maintenance may
require an amendment to this Agreement or separate notification under Fish and
Game Code section 1602 subdivision (a).
2.37 Abutment Location. Abutments shall be located outside the stream banks and
above ordinary high water.
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2.38 No Bank Hardening. The Project shall not harden the banks of any streams. No
rock slope protection (e.g., riprap) or other form of bank armoring shall be installed.
Concrete and Cement-based Products
2.39 Cement Based Products. All cement-based products (concrete, mortar, etc.)
poured or applied wet onsite shall be excluded fr om the wetted channel or areas
where they may come into contact with water for a period of 30 days after
application. During that time the product shall be kept moist and runoff from the
product shall not be allowed to enter the stream. Commercial sealants may be
applied to the product surface or mixture where difficulty in excluding flow for a
long period may occur. If sealant is used, water shall be excluded from the site
until the sealant is cured.
2.40 Concrete – Primary Containment. The Permittee shall install the necessary
containment structures to control the placement of wet concrete and to prevent it
from entering the channel outside of those structures. No concrete shall be poured
within the high flow line if the 15-day weather forecast indicates any day with a
greater than 20% chance of rain.
2.41 Concrete – Designated Monitor. At all times when the Permittee is pouring or
working with wet concrete there shall be a designated monitor to inspect the
containment structures and ensure that no concrete or othe r debris enters into the
channel outside of those structures.
Erosion and Sediment Control
2.42 Erosion control. At no time shall silt laden runoff be allowed to enter a river,
stream, or lake or directed to where it may enter a river, stream, or lake. Erosion
control measures shall be utilized throughout all phases of operation where
sediment runoff from exposed slopes threatens to enter a river, stream, or lake.
Erosion control measures, such as, silt fences, straw hay bales, gravel or rock
lined ditches, water check bars, and broadcasted straw shall be used wherever
sediment has the potential to leave the work site and enter the river, stream, or
lake.
2.43 Monofilament. Permittee shall not use erosion control materials containing plastic
monofilament netting (erosion control matting) or similar material containing netting
within the project area due to documented evidence of amphibians and reptiles
becoming entangled or trapped in such material. Acceptable substitutes include
coconut coir matting or similar.
2.44 Excavation. No spoil from the excavation shall be placed on the bed or bank of
the stream. Excavated spoil shall be removed to an area where the sediment will
not deliver to a watercourse.
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2.45 Groundwater Encountered. Nuisance groundwater encountered during excavation
within the floodplain shall be discharged at a location where it will infiltrate into the
soil, resulting in no overland flow. Turbid water shall not be allowed to flow
downstream.
2.46 Erosion Control Monitoring. Permittee shall monitor erosion control measures
during and after each storm event and repair and/or replace ineffective measures
immediately.
2.47 Disposal and Removal of Materials. All removed spoils and construction debris
shall be moved outside the work area prior to inundation by water. Spoil sites shall
not be located within the stream channel or areas that may be subjected to stream
flows, where spoil may be washed back into a stream, or where it may impact
streambed habitat, aquatic or riparian vegetation. All removed material shall be
disposed of according to state and local laws and ordinances.
Equipment and Vehicles
2.48 Operating Equipment and Vehicle Leaks. Any equipment or vehicles driven and/or
operated adjacent to the stream shall be checked and maintained daily to prevent
leaks of materials that could be deleterious to aquatic and terrestrial life or riparian
habitat.
2.49 Stationary Equipment Leaks. Stationary equipment such as motors, pumps,
generators, and welders, located within or adjacent to the stream shall be
positioned over drip pans. Stationary heavy equipment shall have suitable
containment to handle a catastrophic spill/leak.
2.50 Equipment Storage. Staging and storage areas for equipment, materials, fuels,
lubricants, and solvents, shall be located outside of the stream channel and banks.
2.51 Refueling of Equipment. Refueling of construction equipment and vehicles may
not occur within 175 feet of any water body, or anywhere that spilled fuel could
drain to a water body. Tarps or similar material shall be placed underneath the
construction equipment and vehicles, when refueling, to capture incidental
spillage of fuels. Equipment and vehicles operating in the project area shall be
checked and maintained daily to prevent leaks of fuels, lubricants, or other
liquids.
Material Handling, Debris, and Waste
2.52 Stockpiled Materials. Building materials and/or construction equipment shall not be
stockpiled or stored where they may be washed into the water or cover aquatic or
riparian vegetation. Stockpiles shall be covered whe n measurable rain is
forecasted.
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2.53 No Dumping. Permittee and all contractors, subcontractors, and employees shall
not dump any litter or c onstruction debris within the stream, or where it may pass
into the stream.
2.54 Pick Up Debris. Permittee shall pick up all debris and waste daily.
2.55 Wash water. Water containing mud, silt, or other pollutants from equipment
washing or other activities, shall not be allowed to enter a lake or flowing stream or
placed in locations that may be subjected to high storm flows.
Toxic and Hazardous Material
2.56 Toxic Materials. Any hazardous or toxic materials that could be deleterious to
aquatic life that could be washed into the stream or its tributaries shall be
contained in watertight containers or removed from the project site.
2.57 Hazardous Materials. Debris, soil, silt, bark, slash, sawdust, rubbish, creosote-
treated wood, raw cement/concrete or washings thereof, asphalt, paint or other
coating material, oil or other petroleum products, or any other substances which
could be hazardous to aquatic life, wildlife, or riparian hab itat resulting from the
project related activities shall be prevented from contaminating the soil and/or
entering the Waters of the State.
Spills and Emergencies
2.58 Spill Kits. Prior to entering the work site, all field personnel shall know the location
of spill kits and trained in their appropriate use.
2.59 Spill of Material Deleterious to Fish and Wildlife. In the event of a hazardous
materials spill into a stream (e.g., concrete or bentonite), Permittee shall
immediately notify the California Off ice of Emergency Services State Warning
Center by calling 1-800-852-7550 and immediately provide written notification to
CDFW by email at AskBDR@wildlife.ca.gov . Permittee shall take all reasonable
measures to document the extent of the impacts and affected areas including
photographic documentation of affected areas, injured fish and wildlife. If dead fish
or wildlife are found in the affected area, Permittee shall collect carcasses and
immediately deliver them to CDFW. Permittee shall meet with CDFW within ten
days of the reported spill in order to develop a resolution including: site clean -up,
site remediation and compensatory mitigation for the harm caused to fish, wildlife
and the habitats on which they depend as a result of the spill. The Permittee shall
be responsible for all spill clean-up, site remediation and compensatory mitigation
costs. Spill of materials to waters of the state that are deleterious to fish and
wildlife are in violation of Fish and Gam e Code section 5650 et seq. and are
subject to civil penalties for each person responsible. CDFW reserves the right to
refer the matter to the District Attorney’s Office if a resolution cannot be agreed
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upon and achieved within a specified timeframe, gener ally six months from the
date of the incident.
2.60 Spill Containment. All activities performed in or near a river, stream, or lake shall
have absorbent materials designated for spill containment and cleanup activities
on-site for use in an accidental spill. The Permittee shall immediately notify the
California Emergency Management Agency at 1-800-852-7550 and immediately
initiate the cleanup activities. CDFW shall be notified by the Permittee and
consulted regarding clean-up procedures.
3. Compensatory Measures
To compensate for adverse impacts to fish and wildlife resources identified above that
cannot be avoided or minimized, Permittee shall implement the measure listed below.
3.1 Mitigation Report and Credits. Permittee shall provide CDFW with a report with
mitigation location maps and description of mitigation areas at East Austin Creek
Conservation Bank at least 30 days prior to the start of Project activities for
CDFW’s acceptance. Once accepted by CDFW, Permittee shall purchase credits
and provide copies of the credit purchase agreements to CDFW prior to
commencement of Project activities, unless otherwise approved in writing by
CDFW. Permittee shall purchase stream credits at East Austin Creek Conservation
Bank equivalent to 6,039 square feet (0.138 acres) and 72 linear feet.
Other credits or mitigation activities than those described above may only be used
with prior written approval from CDFW and may require an amendment to this
Agreement.
4. Reporting Measures
Permittee shall meet each reporting requirement described below .
4.1 Notification Prior to Work . Per Measure 1.5, Notify CDFW Prior to Work, at least
five days prior to the start of Project activities, Permittee shall notify CDFW that
work will commence.
4.2 Notification of Designated Representative. Per Measure 1.9, Designated
Representative, at least five days prior to the start of Project activities, Permittee
shall submit to CDFW the name, business address, and contact information of the
Designated Representative.
4.3 Qualified Biologist Approval. Per Measure 2.7, CDFW-Approved Qualified
Biologist(s) and Monitor(s), no later than 14 days prior to Project activities
Permittee shall submit to CDFW, for review and approval, the qualifications for
the biologist(s) that shall oversee the implementation of the conditions in this
Agreement and conduct surveys or monitoring work .
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4.4 Survey Reports. Per Measures 2.17, 2.18, 2.19, 2.20, 2.21, 2.22, 2.23, 2.24, and
2.26 survey results for nesting birds and all other sensitive species shall be
submitted to CDFW for review and written acceptance prior to the start of work.
4.5 Photographic Documentation of Work. Prior to commencement of work a minimum
of four (4) vantage points that offer representative views of the Project site and
work areas shall be identified. The Permittee shall phot ograph the Project area
from each of the vantage points, noting the direction and magnification of each
photo. Upon completion of work, the Permittee shall photograph post -Project
conditions from the vantage points using the same direction and magnificatio n as
pre-Project photos. A reference key shall be submitted with the photos describing
the location of the photo, the direction of the view, and whether the photo is pre - or
post-construction. All photos shall be submitted within 30 days of Project
conclusion.
4.6 Mitigation Report and Proof of Compensatory Mitigation. At least 30 days prior to
construction, Permittee shall submit a mitigation report identifying the specific
location(s) that will act as mitigation for the Project. Prior to construction, Permittee
shall provide proof of purchase of compensatory mitigation outlined in Measure
3.1.
4.7 Notification to the California Natural Diversity Database. If any listed, rare, or
special status species are detected during Project surveys or on or around the
Project site during Project activities, the Permittee shall submit CNDDB Field
Survey Forms to CDFW in the manner described at the CNDDB website
(https://www.wildlife.ca.gov/Data/CNDDB/Submitting-Data) within five working
days of the sightings. Copies of such submittals shall also be submitted to the
CDFW regional office as specified below.
CONTACT INFO RMATION
Any communication that Permittee or CDFW submits to the other shall be submitted
through EPIMS as instructed by CDFW.
To Permittee:
Vanessa Garrett
City of Rohnert Park
EPIMS-SON-15175-R3
Trail to Crane Creek Park
vgarrett@rpcity.org
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To CDFW:
Department of Fish and Wildlife
Region 3: Bay Delta Region
EPIMS-SON-15175-R3
Trail to Crane Creek Park
EPIMS.R3@wildlife.ca.gov ; amanda.culpepper@wildlife.ca.gov
LIABILITY
Permittee shall be solely liable for any violations of the Agreement, whether committed
by Permittee or any person acting on behalf of Permittee, including its officers,
employees, representatives, agents or contractors and subcontractors, to complete the
Project or any activity related to it that the Agreement authorizes.
This Agreement does not constitute CDFW’s endorsement of , or require Permittee to
proceed with the Project. The decision to proceed with the Project is Permittee’s alone.
SUSPENSION AND REVOCATION
CDFW may suspend or revoke in its entirety the Agreement if it determines that
Permittee or any person acting on behalf of Permittee, including its officers, employees,
representatives, agents, or contractors and subcontractors, is not in compliance with the
Agreement.
Before CDFW suspends or revokes the Agreement, it shall provide Permittee written
notice by certified or registered mail that it intends to suspend or revoke. The notice
shall state the reason(s) for the proposed suspension or revocation, provide Permittee
an opportunity to correct any deficiency before CDFW suspends or revokes the
Agreement, and include instructions to Permittee, if necessary, including but not limited
to a directive to immediately cease the specific activity or activities that caused CDFW
to issue the notice.
ENFORCEMENT
Nothing in the Agreement precludes CDFW from pursuing an enforcement action
against Permittee instead of , or in addition to, suspending or revoking the Agreement.
Nothing in the Agreement limits or otherwise affects CDFW's enforcement authority or
that of its enforcement personnel.
OTHER LEGAL OBLIGATIONS
This Agreement does not relieve Permittee or any person acting on behalf of Permittee,
including its officers, employees, representatives, agents, or contractors and
subcontractors, from complying with, or obtaining any other permits or authorizations
that might be required under, other federal, state, or local laws or regulations before
beginning the Project or an activity related to it. For example, if the Project causes take
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of a species listed as threatened or endangered under the Endangered Species Act
(ESA), such take will be unlawful under the ESA absent a permit or other form of
authorization from the U.S. Fish and Wildlife Service or National Marine Fisheries
Service.
This Agreement does not relieve Permittee or any person acting on behalf of Permittee,
including its officers, employees, representatives, agents, or contractors and
subcontractors, from complying with other applicable statutes in the Fish and Game
Code including, but not limited to, Fish and Game Code sections 2050 et seq.
(threatened and endangered species), section 3503 (bird nests and eggs), section
3503.5 (birds of prey), section 5650 (water pollution), section 5652 (refuse disposal into
water), section 5901 (fish passage), section 5937 (sufficient water for fish), and section
5948 (obstruction of stream).
Nothing in the Agreement authorizes Permittee or any person acting on behalf of
Permittee, including its officers, employees, representatives, agents, or contractors and
subcontractors, to trespass.
AMENDMENT
CDFW may amend the Agreement at any time during its term if CDFW determines the
amendment is necessary to protect an existing fish or wildlife resource.
Permittee may amend the Agreement at any tim e during its term , provided the
amendment is mutually agreed to in writing by CDFW and Permittee. To request an
amendment, Permittee shall log into EPIMS and submit to CDFW a completed CDFW
“Amendment & Extension” form . Permittee shall include with the completed form ,
payment of the corresponding amendment fee identified in CDFW’s current fee
schedule (see Cal. Code Regs., tit. 14, § 699.5).
TRANSFER AND ASSIGNMENT
This Agreement may not be transferred or assigned to another entity, and any purported
transfer or assignment of the Agreement to another entity shall not be valid or effective,
unless the transfer or assignment is requested by Permittee in writing, as specified
below, and thereafter CDFW approv es the transfer or assignment in writing.
The transfer or assignment of the Agreement to another entity shall constitute a minor
amendment, and therefore to request a transfer or assignment, Permittee shall log into
EPIMS and submit to CDFW a completed CDFW “Amendment & Extension” form .
Permittee shall include with the completed form , payment of the minor amendment fee
identified in CDFW’s current fee schedule (see Cal. Code Regs., tit. 14, § 699.5).
EXTENSIONS
In accordance with Fish and Game Code section 1605, subdivision (b), Permittee may
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request one extension of the Agreement, provided the request is made prior to the
expiration of the Agreement’s term . To request an extension, Permittee shall log into
EPIMS and submit to CDFW a completed CDFW “Amendment & Extension’ form.
Permittee shall include with the completed form , payment of the extension fee identified
in CDFW’s current fee schedule (see Cal. Code Regs., tit. 14, § 699.5). CDFW shall
process the extension request in accordance with Fish and Game Code section 1605,
subdivisions (b) through (e).
If Permittee fails to submit a request to extend the Agreement prior to its expiration,
Permittee must submit a new notification and notification fee before beginning or
continuing the Project the Agreement covers (Fish & G. Code § 1605, subd. (f)).
EFFECTIVE DATE
The Agreement becomes effective on the date of CDFW’s signature, which shall be: 1)
after Permittee’s signature; 2) after CDFW complies with all applicable requirements
under the California Environmental Quality Act (CEQA); and 3) after payment of the
applicable Fish and Game Code section 711.4 filing fee listed at
https://www.wildlife.ca.gov/Conservation/CEQA/Fees.
TERM
This Agreement shall expire on December 31, 2025, unless it is terminated or extended
before then. All provisions in the Agreement shall remain in force throughout its term .
Permittee shall remain responsible for implementing any provisions specified herein to
protect fish and wildlife resources after the Agreement expires or is terminated, as Fish
and Game Code section 1605, subdivision (a)(2) requires.
EXHIBITS
The documents listed below are included as exhibits to the Agreement and incorporated
herein by reference.
A. Exhibit A. Potential Impacts to Delineated Wetlands and Waters of the United
States , prepared by Dudek, dated December 18, 2020 and May 12, 2021.
B. Exhibit B. Improvement Plans: Trail to Crane Creek Regional Park , prepared by
Brelje & Race Consulting Engineers, dated April 20, 2021.
AUTHORITY
If the person signing the Agreement (signatory) is doing so as a representative of
Permittee, the signatory hereby acknowledges that he or she is doing so on Permittee’s
behalf and represents and warrants that he or she has the authority to legally bind
Permittee to the provisions herein.
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AUTHORIZATION
This Agreement authorizes only the Project described herein. If Permittee begins or
completes a Project different from the Project the Agreement authorizes, Permittee may
be subject to civil or criminal prosecution for failing to notify CDFW in accordance with
Fish and Game Code section 1602.
CONCURRENCE
Through the electronic signature by the permittee or permittee’s representative as
evidenced by the attached concurr ence from CDFW’s Environmental Permit Information
Management System (EPIMS), the permittee accepts and agrees to comply with all
provisions contained herein.
The EPIMS concurrence page containing electronic signatures must be attached
to this agreement to be valid.
Version 1 uploaded August 12, 2021