Whether it's surveying protected species, monitoring construction, or restoring habitats, MBA has a large and diverse group of natural resources management specialists that can assume the task. We have been providing project planning and permit facilitation to residential and commercial developers, resort and golf course sponsors, energy and power suppliers, government agencies, and the military.

MBA resolves natural resources issues through advance planning, innovative solutions, and practical applications. Our intimate knowledge of land development, the natural environment, and regulatory processes enables us to provide the technical and management assistance necessary to keep projects moving while preserving the integrity of development goals and the environment. We can provide the evaluation, the expertise, and the mediation that will effectively address the most complex natural resources planning needs.

California Natural Resources Development Updates

Updated Designated Critical Habitat Areas for the Santa Ana Sucker

The USFWS has recently updated Designated Critical Habitat Areas for the Santa Ana Sucker (Catostomus santaannae), which decreased from 23,735 acres in 2005 to approximately 9,300 acres in 2010.  The 2010 designated critical habitat is also 281 acres less than the 2009 proposed critical habitat. This noticeable decrease in critical habitat area is directly related to a finer level of detail with regard to mapping suitable habitat areas with a higher quality aerial photograph.  The majority of the area removed from the 2010 critical habitat is associated with upland areas that do not provide suitable habitat for this species. But what does this mean to the average builder or developer? How is this different than the San Bernardino Kangaroo Rat (SBKR) Designated Critical Habitat?

USFWS designated critical habitat is only a factor if a project requires a federal action to carry out, fund, or authorize a proposed project. Federal agencies are required to consult either formally or informally with USFWS on actions to ensure that the proposed action will not destroy or adversely modify critical habitat. In this way, a critical habitat designation protects areas that are necessary for the conservation of the species. However, a critical habitat designation generally has no effect on situations that do not involve a Federal agency-for example, a private landowner undertaking a project that involves no Federal funding or permit.  This does not mean that a federal permit is not needed if there is not a Federal action, but if there is a Federal action, that Federal agency has an obligation to consult with the Fish and Wildlife Service not only on the "take" of individuals, but most also look at the potential for the project to impact critical habitat in such a way as to jeopardize the long-term conservation of the species through the loss of this critical habitat.

The majority of the designated critical habitat for SBKR is within privately owned property with no federal nexus and therefore, the majority of future projects will not require any additional consultation or permitting requirement unless the species occurs within the project site.  Terrestrial species are much easier to manage and the limiting factor for these species is typically a soil type, elevation, or level of disturbance. So what is so different about fish? Well, just about everything.

For starters, all designated critical habitat is located within a river or stream system under the jurisdiction of the US Army Corps of Engineers. Thus, every project within Critical Habitat Areas that impacts a drainage feature has a federal nexus and therefore will require some sort of formal or informal consultation with the USFWS.  This not only goes for portions of the stream that are considered occupied by the species, but this will also includes portions of the drainage that provide downstream sediment deposits, which are necessary for the long term conservation of the species. Which means,  builders and developers will likely still have to mitigate for impacts to drainage features even if the Santa Ana sucker is considered absent from the project site.  

Another issue, which is a major problem for local water agencies and a direct result of the threatened lawsuit, is the control of water management and flood control. Regulating river and stream flows is a very important part of managing and regulating a limited natural resource in southern California. Any time a water agency wants to change the downstream flows, whether it is to remove water from the system to provide water resources to new developments or add water from an increase in reclaimed water, a detailed investigation of the long-term affects of the change in water flows with respect to the existing habitat will be required.  In some cases, this may require a 5 to 10 year monitoring program. 

San Bernardino Kangaroo Rat Critical Habitat Expands

In the action of Case 5:09-cv-00090-AET-FFM Center for Biological Diversity et al v. US Fish & Wildlife Service, the San Bernardino Kangaroo Rat critical habitat of 2008 has been vacated and the 2002 designation has been reinstated as the current designated Critical Habitat for the species. This increases the amount of Critical Habitat from the previous 7,779 acres back to the original 33,290 acres. The attached exhibit illustrates the current and previous critical habitat areas.

The designation of Critical Habitat does not prohibit development, but it does add an additional layer of mandatory consultation under Section 7 of the Endangered Species Act, regardless of whether there is any potential for this species to occur within a specific project area. It also likely increases the costs associated with mitigation to off-set project related impacts to suitable habitat areas. However, all of the mitigation measures are negotiated during the formal or informal consultation process with other federal agencies.

Updated Critical Habitat Areas for the Arroyo Toad and Thread-leafed Brodiaea

The USFWS has recently updated Critical Habitat Areas for a number of species as required by court order. The most recent federally listed threatened and/or endangered species with final revised critical habitat include Arroyo Toad (published on February 9, 2011) and Thread-leafed Brodiaea (published February 8, 2011). Because of recent litigation, the USFWS is required to revise currently designated critical habitat areas in order to more effectively manage the recovery of the species by reevaluating the current critical habitat areas. Over the last few months, USFWS has greatly increased Critical Habitat Areas for a number of species and will continue to do so further into 2011. With the Arroyo Toad, the original listing had approximately 12,000 acres. Proposed revisions in 2009 would have designated 109,000 acres. The final rule identified 98,000 acres. The rule goes into effect March 11, 2011.

With Thread-leafed Brodiaea, the original designation was for 597 acres of critical habitat; proposed revisions identified 3,786 acres. The final rule identified 2,947 acres. This rule becomes effective March 10, 2011.

In both instances the majority of the lands are privately held. But what does all of this mean for future development projects?

Here's our take on this issue as it applies to development...

It is often believed that development projects within USFWS designated critical habitat often face additional scrutiny to ensure protected species are not impacted, or that any take of a species is balanced with some type of mitigation. USFWS designated critical habitat is only a factor if a project requires a federal action to carry out, fund, or authorize a proposed project. Federal agencies are required to consult either formally or informally with USFWS on actions to ensure that the proposed action will not destroy or adversely modify critical habitat. In this way, a critical habitat designation protects areas that are necessary for the conservation of the species. However, a critical habitat designation generally has no effect on situations that do not involve a Federal agency-for example, a private landowner undertaking a project that involves no Federal funding or permit. This does not mean that a federal permit is not needed if there is not a Federal action, but if there is a Federal action, that Federal agency has an obligation to consult with the Fish and Wildlife Service not only on the "take" of individuals, but most also look at the potential for the project to impact critical habitat in such a way as to jeopardize the long-term conservation of the species through the loss of this critical habitat.

They key factor in the recently designated critical habitat areas is, while trying to expand the amount of suitable habitat areas necessary for species conservation, the USFWS also understands that not all of the habitat within the designated critical habitat area is necessary for the long-term conservation of the species. Each individual species with designated critical habitat has specific constituent habitat elements necessary for the species. If a project site does not have these constituent habitat elements, then there is no requirement for long drawn-out consultations with USFWS. The key is to have an environmental consultant that is familiar with these constituent habitat elements and can clearly identify them if they are on your property, but more importantly can eliminate a project from consultation if they do not occur.

For more information…

If you have questions regarding this or any other local environmental issue, please contact Kenneth J. Lord, PhD, Director of Natural and Cultural Resources (714.508.4100; klord@brandman.com).