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1. What is the Santa Clara Valley Habitat Plan (Habitat Plan)?

The Santa Clara Valley Habitat Plan (Habitat Plan) is both a habitat conservation plan and natural community conservation plan, or HCP/NCCP. This planning document:

• Helps private and public entities plan and conduct projects and activities in ways that lessen impacts on natural resources, including specific threatened and endangered species
• Identifies regional lands—called reserves—to be preserved or restored to benefit those species
• Describes how reserves will be managed and monitored to ensure that they benefit those species

In providing a long-term, coordinated program for habitat restoration and conservation, the Habitat Plan aims to enhance the viability of threatened and endangered species throughout the Santa Clara Valley.

2. Who developed the Habitat Plan? When was it approved?

The Habitat Plan was prepared by six local agencies:

• City of Gilroy
• City of Morgan Hill
• City of San José
• County of Santa Clara (County)
• Santa Clara Valley Water District (SCVWD)
• Santa Clara Valley Transportation Authority (VTA)

In developing the Habitat Plan, these co-Permittees worked with the two agencies responsible for applicable state and federal laws pertaining to endangered species: the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Wildlife (CDFW). USFWS and CDFW are collectively referred to as the Wildlife Agencies.

The Habitat Plan grew from a collaborative effort in the early 2000s among four of these partners—the County, City of San José, SCVWD, and the VTA—who were developing a joint HCP/NCCP for several local transportation projects. In 2005, these partners were joined by the Cities of Gilroy and Morgan Hill, who recognized the long-term benefits of the Habitat Plan for their communities.

The final Habitat Plan was approved and adopted by the co-Permittees in 2013.

3. What is a habitat conservation plan (HCP)?

An HCP is a document that meets federal Endangered Species Act (ESA) requirements and enables local agencies to allow projects and activities to occur in endangered species’ habitats. In exchange, those projects and activities must incorporate HCP-prescribed measures to avoid, minimize, or compensate for adverse effects on natural communities and endangered species.

An HCP extends its federally granted endangered species permit—or its take authorization—to all projects and activities it covers. Loosely defined, take means to injure or kill a listed species or alter the habitat on which it depends. (For more information on take, see Question 6 below.) Although the ESA prohibits take of listed species, under some circumstances take can be authorized by permit to agencies, developers, and other entities engaged in otherwise lawful activities. The HCP process recognizes the impact of land use activities and establishes a program to provide for a net benefit to specific species.

Without a regional HCP in place, local governments, private entities, or individuals evaluate projects and activities individually in consultation with a variety of federal and state regulators to mitigate for potential impacts on species. This is a lengthy process that can cost all parties considerable time and money. This approach also does less to protect wildlife because project- or activity-specific mitigation measures result in land being set aside on a piecemeal basis, resulting in fragmented habitats that are less ecologically viable and also more difficult to manage. Regional HCPs are a relatively new tool for protecting endangered and threatened species and represent an important integration of land use planning, regional and interagency coordination, and habitat conservation. The Habitat Plan offers a more efficient process for protecting the environment and processing applications for local projects and activities that may affect endangered species.

4. What is a natural community conservation plan (NCCP)?

A natural community conservation plan (NCCP) is the state counterpart to the federal HCP. It provides a means of complying with the Natural Community Conservation Planning Act (NCCP Act) and securing take authorization at the State level. The NCCP Act is broader than ESA and the California Endangered Species Act (CESA). The primary objective of the NCCP program is to conserve natural communities at the ecosystem scale while accommodating compatible land uses. To be approved by CDFW, an NCCP must provide for the conservation of species and protection and management of natural communities in perpetuity within the area covered by permits.

NCCPs are different from HCPs because the NCCP Act requires that conservation actions improve the overall condition of a species, whereas an HCP typically only requires avoidance of a net adverse impact on a species. And while an HCP can be applied at a project-by-project or regional scale, an NCCP must be applied at the regional scale to promote the long-term recovery of species, protection of habitat and natural communities, and diversity of species at the landscape-level. Thus the state requirements go “above and beyond” the federal mitigation requirements.

5. Why develop a joint HCP/NCCP?

Local agencies often choose to prepare a joint HCP/NCCP because the requirements of both documents are similar and because coverage is desired for both federally and state-listed species.

6. What is "take"?

"Take," as defined by ESA, means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." Harm is defined as "any act that kills or injures the species, including significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering" (50 CFR 17.3).

At the state level, take is defined under the California Fish and Game Code (more narrowly than under ESA) as any action or attempt to "hunt, pursue, catch, capture, or kill."

7. What are the benefits of the Habitat Plan?

For landowners wishing to develop land, the Habitat Plan streamlines the permitting process by pre-identifying mitigation obligations for impacts on species habitat, including aquatic land covers (e.g., wetlands and streams), and providing a process to meet mitigation obligations. In this manner, the Habitat Plan allows landowners seeking endangered species permits to pursue their projects with increased certainty of project timelines and associated costs.

For developers, the Habitat Plan offers a streamlined permitting process for planned development, infrastructure, and maintenance activities. Applications for endangered species permits can occur in tandem with other building permits because the Habitat Plan allows local agencies—specifically, the County and the Cities of Gilroy, Morgan Hill, and San José—to grant endangered species permits to projects and activities under their jurisdictions.

Importantly, the Habitat Plan benefits the environment by protecting, enhancing, and restoring natural resources in specific areas of Santa Clara County and contributing to the recovery of threatened and endangered species. Instead of evaluating and permitting projects and activities individually, which can result in piecemeal and disjointed conservation efforts, the Habitat Plan enables evaluation of natural resource impacts and mitigation requirements comprehensively. This method is more efficient and effective for at-risk species and their habitats. At full plan implementation, the Reserve System will protect an estimated 46,920 acres for the benefit of covered species, natural communities, biological diversity, and ecosystem function.

8. What projects and activities are covered by the Habitat Plan?

Projects are well-defined actions that occur once in a discrete location (e.g., building a house). By contrast, activities are actions that occur repeatedly in one or more locations (e.g., vegetation management along roads and streams). Together, these activities and projects are the covered activities for which endangered species permits from the Wildlife Agencies will be obtained. Covered activities under the Habitat Plan include all types of private development and public projects so long as certain criteria are met.

All covered activities must incorporate the relevant conditions on covered activities described in Chapter 6 of the Habitat Plan to avoid or minimize impacts on covered species and natural communities.

9. What projects and activities are not covered by the Habitat Plan?

Numerous projects and activities cannot seek coverage under the Habitat Plan. These include:

• Private sector activities that do not obtain a development, grading, building, or other construction permit
• City of Gilroy expansion beyond the Habitat Plan’s limit of urban growth
• Bay Area to Central Valley high-speed train
• New highway between Interstate 5 and U.S. 101
• Routine and ongoing agricultural activities that are not assessed through a permit process
• Expansion of cultivated agriculture into natural lands that is not assessed through a permit process
• Vineyard development that is not assessed through a permit process
• Timber harvest operations
• Quarries and other mining other than expansion of Freeman Quarry
• New and expanded landfills other than Kirby Canyon, Pacheco Pass Landfill expansions, and landfills occurring inside the planning limits of urban growth of the three cities
• Mercury removal/remediation that is not incidental to other covered activities
• Corps led projects where the Corps is responsible for implementation of avoidance and minimization measures
• Pacheco Dam reconstruction and reservoir enlargement
• Pesticide/herbicide application (excluded from the federal permit only)
• Installation and operation of private groundwater wells
• Increased development due to incorporation of San Martin
• Dam removal and/or construction of new dams
• Wind farm development
• Water importation from outside the SCVWD service area
• Emergency activities not defined as a Changed Circumstance in the Habitat Plan

10. How long is the Habitat Plan in effect?

The Habitat Plan permit term is 50 years, although lands conserved under the Habitat Plan will be permanently protected. This Reserve System will protect an estimated 46,920 acres for the benefit of covered species, natural communities, biological diversity, and ecosystem function.

Management of the Reserve System in perpetuity will be ensured through the conservation easement or title record. While managed in perpetuity, all land acquisitions for the Reserve System will be acquired by year 45 of the permit term. In addition, the Habitat Plan will create an endowment during the permit term to fund all needed implementation after the permit term. An endowment of $90 million in current dollars is needed to generate average annual real returns of $3.5 million to fund post-permit term management and monitoring of the Reserve System.

11. What are the boundaries of the Habitat Plan? How are the boundaries determined?

The Habitat Plan covers approximately 510,000 acres, primarily within south Santa Clara County. This permit area covers land from the Santa Clara / Alameda County border south to the Santa Clara/ San Benito County border and from the western edge of San José east to the eastern edge of the Coyote Creek watershed or the County boundary.

The boundaries are based on political, ecological, and hydrologic factors, as well as the location of covered activities and conservation activities. The permit area includes all of the Lagas / Uvas / Pacheco watersheds within Santa Clara County and all of the Coyote Creek watershed except for the Baylands. A large portion of the Guadalupe watershed is also within the permit area.

A small portion of the northern edge of the County (portions of the cities of San José, Santa Clara, Mountain View, Milpitas, Sunnyvale), Fremont in Alameda County, and a small portion of San Mateo County are included for the implementation of conservation action for western burrowing owl.

12. What does the Habitat Plan not do?

The Habitat Plan is not a land use plan and does not change or amend any local jurisdiction’s policies regarding zoning or allowable growth.

13. Who is responsible for overseeing implementation of the Habitat Plan?

The Santa Clara Valley Habitat Agency (Habitat Agency) is the agency primarily responsible for executing the requirements of the Habitat Plan, the federal and State endangered species permits, and the Implementing Agreement (the legal document between the Wildlife Agencies and co-Permittees to implement the Plan). The county and three cities are responsible for Plan compliance with respect to private development projects in their jurisdictions, and each co-Permittee is responsible for ensuring its own public projects are carried out in conformance with the Plan. The Habitat Agency will hold title to lands or easements it purchases and oversee cooperative agreements with land management entities that own and/or manage reserves as part of the Reserve System. The Habitat Agency may also provide funding to local land trusts and management agencies for them to purchase land for the Reserve System. The Habitat Agency will provide funds for reserve management and monitoring to those agencies and organizations with whom it contracts for such services.

The Habitat Agency is a joint powers authority (JPA) composed of the Cities of Gilroy, Morgan Hill, and San José, and the county. The JPA is limited to the four participating jurisdictions because the Joint Exercise of Powers Act requires that a JPA can only exercise powers held by all the participating agencies—and of the six participating agencies, only the four jurisdictions have the authority to adopt the Habitat Plan development fees. However, because all six agencies are responsible for implementing the Habitat Plan, each has a role in the Habitat Agency.

The Habitat Agency has two decision-making bodies, a Governing Board and an Implementation Board. Currently information on the Governing Board and Implementation Board can be found online; however, a new website is under development for the Habitat Agency. The Habitat Agency has joined the six other local agencies as a co-Permittee on the state and federal permits.

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1. What species are covered by the Habitat Plan?

Covered species are those species addressed in the Habitat Plan. Conservation actions in the Habitat Plan will be implemented to minimize impacts on these species. Each species was selected based on its potential to be affected by covered projects and activities, its occurrence in the area, the adequacy of data for the species, and its current or foreseeable listing status.
It is important to note, however, that the Habitat Plan does not cover all threatened and/or endangered species in the area; specifically, the Plan does not cover listed fish. Some species like the California condor are fully protected species, meaning that the State prohibits take of these species expect for relocation or scientific research. Because covered activities are not expected to affect these species, and because permits are generally not issued for these species, they also are not covered under the Habitat Plan. Instead, the Habitat Plan includes conservation measures to avoid take of fully protected species.

• Invertebrate
  Bay Checkerspot Butterfly
• Amphibians & Reptiles
  California Tiger Salamander
  California Red-legged Frog
  Foothill Yellow-legged Frog
  Western Pond Turtle
• Birds
  Western Burrowing Owl
  Least Bell’s Vireo
  Tricolored Blackbird
• Mammals
  San Joaquin Kit Fox

• Plants
  Tiburon Indian Paintbrush
  Coyote Ceanothus
  Mount Hamilton Thistle
  Santa Clara Valley Dudleya
  Fragrant Fritillary
  Loam Prieta Hoita
  Smooth Lessingia
  Metcalf Canyon Jewelflower
  Most Beautiful Jewelflower

2. How does the Habitat Plan affect western burrowing owls?

To avoid or minimize direct impacts of covered activities on western burrowing owls, the procedures described in the Habitat Plan will be implemented. Until the owl population in the South Bay Population reaches the population growth trend described in Section 5.4.6 of the Habitat Plan, the Habitat Plan does not cover take of owls, except for altering habitat for conservation strategy implementation or if an exception to the passive relocation prohibition is granted. (Passive relocation is a technique of relocating owls by forcing them to move off a site by preventing access to burrows; under the Habitat Plan, passive relocation is prohibited until positive population growth is achieved. Under some circumstances, however, exceptions to the passive relocation prohibition may be granted. See Chapter 6, Condition 15, of the Habitat Plan for details.)

Avoidance measures will be used to minimize such impacts. Few exceptions to the passive relocation prohibition are anticipated. These provisions are anticipated to maximize the possibility of success of the conservation strategy by initially preserving owls in the region as much as possible.

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1. What are Habitat Plan development fees and how were they developed?

The Mitigation Fee Act, contained in California Government Code Sections 66000 et seq., guides the adoption and collection of development impact fees by local agencies. The act requires local agencies adopting impact fees to show that there is a reasonable relationship (“nexus”) between the type of impacts, the use of fee revenue, and the development projects upon which the fee is imposed.

The Mitigation Fee Act, contained in California Government Code Sections 66000 et seq., guides the adoption and collection of development impact fees by local agencies. The act requires local agencies adopting impact fees to show that there is a reasonable relationship (“nexus”) between the type of impacts, the use of fee revenue, and the development projects upon which the fee is imposed.

Development fees were determined by calculating the share of Habitat Plan costs across several cost categories. Project proponents will receive the benefits of a predictable and consistent approach that will be applied equitably to all impacts. New development will pay a share of the costs of implementing the Habitat Plan.

Development fees may include the land cover fee, endowment fee, plan preparation cost recovery fee, nitrogen deposition fee, serpentine fee, burrowing owl fee, wetland fee, and temporary impact fee. Find additional information on development fees and how they are calculated.

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1. How will stakeholders and the public be afforded opportunities to participate in Habitat Plan implementation?

Stakeholders and the public will be afforded opportunities to participant in Habitat Plan implementation in several ways. Governing Board and Implementation Board meetings are open to the public, and public comments are solicited and heard at each meeting. The Habitat Agency has established a Public Advisory Committee to solicit input from stakeholders with interest in Habitat Plan implementation. At least once annually, the Habitat Agency will convene a meeting to report on the progress of implementation directly to the public.

Find additional information of the Governing Board, Implementation Board, , and Public Advisory Committee as well public involvement opportunities, and to review and check project applications and project status.

2. How can I monitor Habitat Plan implementation? Where can I go for additional information?

The public can contact Habitat Agency staff to comment on various aspects of Habitat Plan implementation. All data and reports associated with implementation will be available to the public with the exception of reports documenting surveys on private lands considered for acquisition or conservation easements not yet acquired by the Habitat Agency. Monitoring reports will also be posted on the Habitat Plan website.

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1. What is the Habitat Plan Reserve System?

Land preservation is an important component of the conservation strategy established in the Habitat Plan. The term land preservation is intended broadly to specify the acquisition of terrestrial and aquatic land cover types. Land will be acquired from willing sellers in fee title or through establishment of conservation easements to create the Habitat Plan Reserve System (see Habitat Plan Figure 5-7, Land Acquisition Strategy). The Reserve System will protect an estimated 46,920 acres for the benefit of covered species, natural communities, biological diversity, and ecosystem function.

2. How are lands identified for acquisition and acquired for the Reserve System?

The Habitat Agency is responsible for ensuring the acquisition of land for the Reserve System and will establish the Reserve System through acquisition of land in fee title, conservation easement, or purchase of credits at an approved mitigation bank. Lands will only be acquired from willing sellers or donors in fee title or through establishment of conservation easements to create the Habitat Plan Reserve System. Lands must meet one or more of the biological goals and objectives and the land acquisition requirements in the Habitat Plan.

In order to become part of the Reserve System, lands must:

• Be consistent with the conservation strategy
• Be approved by the Habitat Agency and Wildlife Agencies
• Be protected with a conservation easement.

Acquired lands must meet certain criteria, such as meeting the goals and objectives of the Plan and overall success of the Habitat Plan; being consistent with the reserve design and assembly principles; meeting multiple criteria for landscape linkages, land cover types, plant occurrences, modeled species habitat, selected wildlife species occupancy, and other land acquisition criteria.

3. Will I be affected if a reserve is developed next door to my property?

The Habitat Plan includes a neighboring landowner protection (see Section 10.2.7 Assurances for Private Landowners in the Habitat Plan) provision whereby properties adjacent to reserves will be allowed to continue their activities without being impacted by the adjacent reserve area. This has worked successfully in several HCP/NCCPs.