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  Time Set   #   46.    
Board of Supervisors   
Meeting Date: 07/24/2018  
Brief Title:    Habitat Mitigation Ordinance Update
From: Philip J. Pogledich, County Counsel
Staff Contact: Philip J. Pogledich, County Counsel, x8172

Hold a public hearing to consider approval of an ordinance revising the Habitat Mitigation Ordinance (Title 10, Chapter 10 of the Yolo County Code) and updating two related definitions of the Zoning Code; and consider related exemptions from environmental review pursuant to CEQA Guidelines Sections 15307, 15308, and 15061(b)(3). (No general fund impact) (Pogledich)
Recommended Action
  1. Receive a staff report regarding the proposed changes that are reflected in the summary attached as Attachment A, and the proposed ordinance included as Attachment B;
  2. Hold a public hearing to consider approval of an ordinance revising the Habitat Mitigation Ordinance (Title 10, Chapter 10 of the Yolo County Code) and updating two related definitions of the Zoning Code; and
  3. Find the proposed ordinance to be exempt from CEQA pursuant to CEQA Guidelines Sections 15307, 15308, and 15061(b)(3); and adopt the ordinance.
Strategic Plan Goal(s)
Sustainable Environment
Flourishing Agriculture
Reason for Recommended Action/Background
A.      Introduction.

This item concerns proposed changes to the Habitat Mitigation Ordinance and two related definitions in the Zoning Code to reflect the development of a countywide Regional Conservation Investment Strategy (RCIS). Other minor changes are also proposed, including to streamline enforcement of violations of the Habitat Mitigation Ordinance.  

The Board of Supervisors approved the Habitat Mitigation Ordinance following an extensive public outreach and hearing process in early 2013. It has not been revised since its adoption and the minor changes described in this staff report are appropriate to update the ordinance and otherwise ensure it continues to apply to the intended types of out-of-county mitigation projects. 

The Board considered the proposed ordinance in concept on May 22, 2018, and directed staff to present the matter to the Planning Commission for a recommendation (set forth near the end of this Board letter). For ease of reference, a copy of the current language of the Habitat Mitigation Ordinance is included in Attachment C. The ordinance is codified in Title 10, Chapter 10 of the Yolo County Code.

B.      Background.

As the Board is aware, County staff are currently participating in an effort to develop an RCIS covering Yolo County.  This effort began in early 2017.  The RCIS is a multi-agency effort that also includes the California Department of Water Resources, Natural Resources Agency, and Yolo Habitat Conservancy. The RCIS integrates a "Local Conservation Plan" (LCP) that was previously under development by the Yolo Habitat Conservancy.  That California Department of Fish and Wildlife (CDFW) released a public review draft RCIS/LCP for a 60-day public comment period on May 18, 2018.

The RCIS/LCP is a separate effort from the Yolo HCP/NCCP, recently approved by the Board of Supervisors.  The RCIS component of the RCIS/LCP will enable state agencies to more effectively and efficiently mitigate the effects of state infrastructure projects (including construction and maintenance of levees and other components of the flood protection system) by enabling the creation of "mitigation credits" that can be used by state agencies for habitat mitigation.  For example, if the state builds a project that provides 10 acres of new wetland habitat, the RCIS is intended to allow the state to receive and use 10 acres of wetland mitigation credits that it can apply toward mitigation for other, later projects that disturb wetland habitat.  This is a relatively simple concept that was nonetheless a legal impossibility for state agencies prior to the adoption of RCIS-enabling legislation in 2016. 

For this reason, as noted, state agencies sought to initiate an RCIS covering Yolo County and invited both the County and the Yolo Habitat Conservancy to partner in the effort. While the County is a co-author of the RCIS/LCP, uncertainties exist about how the strategy will be implemented following its completion. 

Importantly, it is possible that CDFW will authorize out-of-county projects undertaken by private developers or local agencies in other jurisdictions to use the RCIS/LCP as a basis for mitigating in Yolo County. Any such efforts by private developers or other local agencies should be within the scope of the County's Habitat Mitigation Ordinance, which requires a conditional use permit for most out-of-County mitigation projects. Certain minor edits to the ordinance, however, will be helpful in clarifying that projects implemented under the RCIS/LCP will be subject to the use permit requirement if they include out-of-county mitigation.

This is the main objective of the proposed Habitat Mitigation Ordinance and Zoning Code edits. Staff also propose other minor changes to the Ordinance and Zoning Code to achieve the following outcomes:
  • To clarify the scope of the ordinance by addressing text stating that the use permit requirement applies to projects that "largely or entirely" impact biological resources outside the County;
  • Require that certain projects claiming an exemption from the use permit requirement be presented to County staff for review;
  • Update provisions relating to the Yolo HCP/NCCP to reflect its adoption and implementation;
  • Clarify that the existing exemption for riparian habitat projects is for projects that restore riparian corridors or buffers;
  • Ensure that the Yolo Habitat Conservancy has an opportunity to review all out-of-county mitigation projects for consistency with the Yolo HCP/NCCP, and that the same opportunity is provided to the Implementation Sponsor (potentially, the Yolo Habitat Conservancy or the state Department of Water Resources) for the RCIS/LCP;
  • Require findings that consider whether a proposed project advances the goals and objectives of the Yolo HCP/NCCP, particularly with regard to implementation of its conservation strategy; and
  • Streamline enforcement actions undertaken to enforce the ordinance by eliminating certain advance notice periods and otherwise modifying procedural requirements in the County's existing Administrative Citation Ordinance (Title 1, Chapter 5 of the County Code).
Staff believe the proposed ordinance is exempt from CEQA review for the same reasons that the original Habitat Mitigation Ordinance was exempt. Specifically:
  • CEQA Guidelines Section 15307: This exemption applies to actions by regulatory agencies for protection of natural resources, including actions that “assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment.” The proposed ordinance does precisely what Section 15307 requires. It refines an existing discretionary approval process that requires careful consideration of impacts on natural resources, as evidenced by its provisions relating to the contents of permit applications and, in addition, certain permit approval criteria. The ordinance will thus help maintain existing resource values and protect the overall environment.
  • CEQA Guidelines Section 15308: This exemption applies to actions by regulatory agencies for protection of the environment, including actions that “assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.” It is thus virtually identical to Section 15307 and applies to adoption of the ordinance for the same reasons.
  • CEQA Guidelines Section 15061(b)(3): This is often referred to as the "common sense" or general rule exemption, which applies where it can be seen with certainty that there is no possibility that a project may have a significant effect on the environment. This exemption applies for the same reasons that the exemptions in Sections 15307 and 15308 apply. Put simply, the proposed ordinance maintains continued effective regulation of certain types of habitat projects. This discretionary approval process that has always been part of the Habitat Mitigation Ordinance will continue to ensure that CEQA review is performed on covered habitat mitigation projects and that, where applicable, the effects of those projects are mitigated in accordance with state and local laws and polices. This approach will ensure the protection of existing biological resources and other aspects of the environment as such projects are implemented.
The Planning Commission considered the proposed ordinance and the CEQA exemptions on July 12, 2018. It unanimously recommended approval of the ordinance and the CEQA exemptions, with a further recommendation that staff ensure the definitions in the Zoning Code are consistent with exemptions set forth in the Habitat Mitigation Ordinance. Staff have determined that, with minor edits to the language presented to the Planning Commission, the definitions are consistent with the exemptions.  

For the foregoing reasons, staff recommend that the Board approve the recommended actions following a public hearing. As this ordinance requires a public hearing, under California law it can be adopted without the need for a second reading at a subsequent Board meeting.
Collaborations (including Board advisory groups and external partner agencies)
Yolo Habitat Conservancy, Department of Community Services.

Fiscal Information
No Fiscal Impact
Fiscal Impact of this Expenditure
Total cost of recommended action
Amount budgeted for expenditure
Additional expenditure authority needed $0
On-going commitment (annual cost)
Source of Funds for this Expenditure
General Fund $0
Att. A. Summary of Proposed Changes
Att. B. Ordinance No. 1501
Att. C. Habitat Mitigation Ordinance (as of July 16, 2018)

Form Review
Inbox Reviewed By Date
Phil Pogledich Phil Pogledich 07/18/2018 04:12 PM
Phil Pogledich Phil Pogledich 07/19/2018 07:47 AM
Form Started By: Phil Pogledich Started On: 07/16/2018 02:23 PM
Final Approval Date: 07/19/2018
Level double AA conformance,
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