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HomeMy WebLinkAbout00 - Non-Agenda Item - Handout-rj.23�2o�i NoV4- Newport Beach City Council — It has come to our attention that you will be receiving a lot of testimony during public comment tonight on legalizing/permitting a dog beach at the mouth of the Santa Ana River/River Jetties beach per this website SAVE DOG BEACH — We Need Your Help on Tuesday — Save Newport. As you will see if you care to check, Mr. Glenn has inaccurate statements on his website and has asked for as many dog owners as possible to attend tomorrow's meeting, thinking that a show of force will change the current laws. In an effort to provide you with the scientific data that does not support such a goal, we are sending you all of the Negative Declaration comments submitted by numerous State and Federal agencies as well as the OC environmental community https:Hspaces.hightail.com/receive/IRC16kpkFs While we realize you are not able to digest all 600+ pages, we do ask that you please do a quick review so that you are aware of the constraints associated with this very special area. Additionally, a meeting was held with Dave Kiff and his staff last Friday to discuss a comprehensive management plan for your sensitive dune ESHA and Western Snowy Plover areas. A recap and memorialization of this meeting was attached for your reference. I am here along with my neighbors representing the homeowners in the area, and other pertinent groups, just to convey the correct portrayal of the area designation. Our goal is not to try to provide greater numbers than Glenn, just represent the facts. I have previously sent all of you relevant information and have met and/or spoken with most of you. Thank you for taking the time to consider the facts related to trying to convert a federally designated ESHA and endangered species nesting, roosting and wintering areas into a dog beach. Please, feel free to contact us with any questions or comments. Bruce Boyd I have attached a copy of the letters from the California Coastal Commission, the United States Fish and Wildlife Service, and The California Fish and Wildlife Service. Others, including the State of California , Department of Parks and Recreation, the Sea and Sage Audubon Society, Huntington Beach Wetlands, and California Native Plant Society are found in the link. STATE OF CALIFORNIA - NATURAL RESOURCES AGENCY EDMUND G. BROWN 1R. Qmw1or CALIFORNIA COASTAL COMMISSION South Coast Area Office 200 Oceangate, Suite 1000 Long Beach, CA 90802-4302 (562) 590-5071 December 14, 2016 Chris Uzo-Diribe Planner IV, OCPW OC Planning 3 00 N. Flower Street, 1 st Floor Santa Ana, CA 92702-4048 RE: County of Orange Dog Beach Santa Ana River, Comments on Negative Declaration (IP# 16-234) Dear Ms. Uzo-Diribe: Thank you for the opportunity to comment on the proposed dog park at the Santa Ana River mouth, which would impact biological and other coastal resources(e.g., water quality, public access, scenic resources) that exist at the site in the County of Orange. We appreciate that such uses can be significant to the community, however, we would like to work with the• County to find a solution that would have fewer potential negative environmental impacts. The Coastal Commission has the responsibility to carefully review any development in the coastal zone for compliance with the California Coastal Act of 19761. The proposed project (establish a dog park), situated within and adjacent to the Santa Ana River, is located entirely within the Coastal Commission's permitting jurisdiction in the coastal zone. Section 30600(a) of the Coastal Act requires that, in addition to obtaining any other permit required by law from any local government or from any state, regional, or local agency, any person, as defined in Section 21066, wishing to perform or undertake any development in the coastal zone, shall obtain a coastal development permit. The proposed dog park constitutes "development" under the Coastal Act that requires a coastal development permit, as the creation, through the proposed ordinance, of an official dog park in an open space area intensifies the use of the area. The proposed project is located in an unincorporated area of the county that is presently not part of any local government's certified Local Coastal Program (LCP). Therefore, in the absence of a certified LCP, the County must obtain a coastal development permit from the Coastal Commission prior to proceeding with the proposed project. The Coastal Commission's standard of review for the coastal development permit application would be the Chapter 3 policies of the Coastal Act. The coastal development permit process will ensure that the proposed project is undertaken in a manner consistent with the Chapter 3 policies of the Coastal. Act. Therefore, the proposed Negative Declaration should address whether the proposed project is consistent with the Chapter 3 policies of the Coastal Act, specifically Section 30240 of the Coastal Act, which restricts development within Environmentally Sensitive Habitat Areas ("ESHA") to resource dependent uses and requires development adjacent to ESHA be sited and designed to avoid impacts to ESHA. t The Coastal Act is found beginning at Section 30000 of the California Public Resources Code. Page 1 of 3 Orange County — Santa Ana River Dog Park Coastal Commission Staff Comments Page 2 of 3 Coastal Commission staff believes that the proposed project would impact the foraging and roosting habitats of the federally and state listed as endangered California Least Tern and federally listed as threatened Western Snowy Plover, as well as the breeding habitat of the Least Tern. In fact, the County's environmental review of the project has identified the project site as habitat for these protected species. Thus, the proposed project appears to be inconsistent with resource protection policies of the Coastal Act. As you probably know, one of the. few successful breeding colonies of the Least Tern in Orange County is located on the north side of the Santa Ana River mouth, just up coast from the proposed dog park. The river mouth itself is important foraging habitat for the Least Tern, and the beach along this stretch of coast is foraging and roosting habitat for the Snowy Plover. Habitats for protected wildlife species are termed ESHA by the Coastal Act and are afforded special protection, as noted above. In fact, the Commission formally determined in a 2006 enforcement action that the dunes on the south side of the Santa Ana River, which are situated in a location immediately adjacent to the proposed dog park, constitute ESHA, in part because they are a component of the Least Tern's local habitat, and required their restoration and preservation. Thus, there are significant questions about the consistency of the proposed dog park in this location with resource protection policies of the Coastal Act, including, but not necessarily limited to, Section 30240. Section 30240 restricts development in ESHA to resource dependent uses and requires that development adjacent to ESHA be compatible with the continuance of the adjacent ESHA and be sited and designed to prevent impacts that would significantly degrade the adjacent ESHA. The dog park is not. a resource dependent use (i.e. it does not require the presence of the ESHA to function), and the dog park, where numerous leashed and unrestrained dogs would be present, and which is proposed to be located directly within the foraging areas of the Least Tern and Snowy Plover and adjacent to the breeding area of Least Tern, is not sited or designed to avoid impacts to ESHA. The Commission will also apply Chapter 3 policies of the Coastal Act to address the proposed project's impacts to, among other things, public access and recreation, scenic resources, marine resources, and biological productivity and water quality of coastal waters. For instance, Section 30230 (Marine Resources) of the Coastal Act states: Marine resources shall be maintained, enhanced, and where feasible, restored. Special protection shall be given to areas and species of special biological or economic significance. Uses of the marine environment shall be carried out in a manner that will sustain the biological productivity of coastal waters and that will maintain healthy populations of all species of marine organisms adequate for long-term commercial, recreational, scientific, and educational purposes. Also, Section 30231 (Biological Productivity; Water Quality) states: The biological productivity and the quality of coastal waters, streams, wetlands, estuaries, and lakes appropriate to maintain optimum populations of marine organisms and for the protection of human health shall be maintained and, where feasible, restored through, among other means, minimizing adverse effects of waste water discharges and entrainment, controlling runoff, preventing depletion of ground water supplies and substantial interference with surface waterflow, encouraging waste water reclamation, maintaining natural vegetation buffer areas that protect riparian habitats, and minimizing alteration of natural streams. Orange County — Santa Ana River Dog Park Coastal Commission Staff Comments Page 3 of 3 Creation of an official dog park, and consequent introduction of numerous leashed and unrestrained dogs and the disturbance associated with such use, within an area that the environmental review process has identified as foraging habitat for protected species, which are key to the marine ecosystem, potentially eliminates or significantly degrades the functioning of the area to provide habitat for marine organisms, with attendant negative impacts to biological productivity. Furthermore, the potential for this activity to remove and degrade dune vegetation within and . adjacent to the proposed project site, in addition to its impacts to sensitive habitats, may impede the biological productivity and water quality of the wetland at the Santa. Ana River mouth through the reduction of the natural vegetation buffering this wetland. Due to the apparent inconsistency of the proposed project with policies of the Coastal Act, Commission staff suggests that the proponents of the dog park work with County and Commission staff to investigate all possible options for locating such an amenity at a site where adverse impacts to protected wildlife species would be avoided. Commission staff believes additional environmental review is necessary for the proposed project and requests that such review consider alternative project designs and project locations that may reduce or avoid adverse impacts to biological resources. Each of the issues identified in this letter, as well as other environmental impacts identified in the Negative Declaration, should be analyzed in the context of potential alternative project designs and project locations. Could adverse impacts to biological resources be reduced or eliminated if the location of the project was changed? In closing, we suggest that the .County analyze additional alternatives to the proposed project, including alternatives that avoid impacts to ESHA, marine resources, and biological productivity and water quality of coastal waters. Alternative mitigation plans should also be proposed as part of the environmental review. Please note that the comments provided herein are preliminary in nature; more .specific comments may be appropriate as the project develops. We hope that these comments are useful, and respectfully reserve the opportunity to comment more specifically at a later date. Commission staff requests notification of any future activity associated with this project or related projects. Please call me at (562) 590-5071 if you have any questions. Thank you for the opportunity to comment on the proposed project. Sincerely, f Charles R. Posner Supervisor of Planning a`wU.S. Fish and Wildlife Service California Department of Fish and Wildlife Carlsbad Fish and Wildlife Office South Coast Region 2177 Salk Avenue, Suite 250 3883 Ruffin Road Carlsbad, California 92008 San Diego, California 92123 760-431-9440 858-467-4201 FAX 760-431-9624 FAX 858-467-4239 In Reply Refer To: F W S-OR-17B0026-17CPA0028 December 14, 2016 Sent by Email Ms. Chris Uzo-Diribe Orange County Public Works 300 N. Flower Street Santa Ana, California 92703-5000 chris.uzodiribe@ocpw.ocgov.com Subject: Negative Declaration for the Orange County Code of Ordinance Proposed Amendment (Dog Beach) Project, IP 16-234, Huntington Beach, California (SCH# 2016111021) Dear Ms. Uzo-Diribe: The U.S Fish and Wildlife Service (Service) and the California Department of Fish and Wildlife (Department), hereafter collectively referred to as the Wildlife Agencies, have reviewed the above - referenced Negative Declaration (ND) dated November 2016. The Wildlife Agencies have identified potential effects of this project on wildlife and sensitive habitats. The project details provided herein are based on the information provided in the Initial Study (IS)/ND and associated documents. The primary concern and mandate of the Service is the protection of public fish and wildlife resources and their habitats. The Service has legal responsibility for the welfare of migratory birds, anadromous fish, and endangered animals and plants occurring in the United States. The Service is also responsible for administering the Federal Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq.), including habitat conservation plans (HCP) developed under section 10(a)(1)(B) of the Act. The Department is a Trustee Agency and a Responsible Agency pursuant to the California Environmental Quality Act (CEQA; §§ 15386 and 15381, respectively) and is responsible for ensuring appropriate conservation of the state's biological resources, including rare, threatened, and endangered plant and animal species, pursuant to the California Endangered Species Act (CESA; Fish and Game Code § 2050 et seq.) and Fish and Game Code (FGC) section 1600 et seq. The Department also administers the Natural Community Conservation Planning program, a California regional habitat conservation planning program. The proposed project is a proposal that would end restrictions on off -leash dogs on unincorporated Orange County (County) land at the mouth of the Santa Ana River and designate the land as a dog park. The IS/ND includes the proposed amendment to the Orange County Code of Ordinances, as follows: "c. A dog, under the charge of a person competent to exercise care, custody, and control over such dog, may be permitted to be upon public property without restraint only during the months of October through February in the unincorporated area downstream from Pacific Coast Highway at the outlet of the Santa Ana River between the incorporated cities of Huntington Beach and Newport Beach which area is hereby designated a dog park. During the months of March through September, a dog, under the charge of a person competent to exercise care, custody, and control over such dog, must be restrained by a substantial chain or leash not to exceed six (6) feet in length. " Ms. Chris Uzo-Diribe (FWS- OR- 17B0026-17CPA0028) 2 The dog park would be located immediately adjacent to a California least tern (Sternula antillarum browni; least tern) and western snowy plover (Pacific Coast population DPS) [Charadrius nivosus nivosus (C. alexandrinus n.); snowy plover] colony. Least terns are listed as endangered under CESA and the Act; they are also fully protected under FGC section 3511(b)(6). Snowy plovers are listed as threatened under the Act and are a state species of special concern. As expressed during a July 6, 2016, meeting with the Department' and in a November 21, 2016, letter from the Service, (Service2016b), the Wildlife Agencies have recommended that the County not designate the area at the mouth of the Santa Ana River as a dog park due to the potential impacts to least terns and snowy plovers. The Wildlife Agencies have significant concerns regarding this proposed amendment, and offer our comments and recommendations to assist the County in avoiding, minimizing, and adequately mitigating project -related impacts to biological resources, and to ensure that the project is consistent with ongoing regional habitat conservation planning efforts. General Comments: The Santa Ana River mouth is located approximately half way between the other nearest estuaries (Bolsa Chica and Upper Newport Bay) and supports a large array of shorebirds much of the year, including the snowy plover, black -bellied plover, semi -palmated plover, willet, long -billed curlew, marbled godwit, western sandpiper, least sandpiper, and long -billed dowitcher (Page and Shuford 2000; Ryan 2016). The Santa Ana River mouth also provides resources for the least tern, which uses the river mouth and adjacent dunes between the months of April and September. The Pacific coast population of snowy plover was listed as threatened on March 5, 1993 (58 Federal Register (FR) 12864) under the authorities of the Act. The snowy plover uses habitat at the mouth of the Santa Ana River primarily during the non -breeding season, but may be present year-round. Non - breeding habitat is important for snowy plovers and other migratory shorebirds because this habitat supplies food and resting areas that allow birds to build fat reserves for spring migration and the upcoming breeding season. Snowy plovers forage for invertebrates and also rest on the beach, mudflats, and sandbars at and near the mouth of the Santa Ana River. The Service recognized the importance of this site to the snowy plover by designating Critical Habitat (Figure 1, below) at the mouth of the Santa Ana River on June 19, 2012 (Service 2012). The least tern was listed as endangered in 1970 under the authority of the Act, and designated as fully protected in 1970 and endangered in 1971 under the authorities of CESA. The least tern is migratory, and uses habitat within and adjacent to the mouth of the Santa Ana River during the breeding season (April -September). Least terns nest primarily within the fenced Huntington Beach Least Tern Preserve adjacent to the river mouth; however, they also roost outside the fenced boundary (Housel et al. 2014). Adult and fledgling least terns have been observed to loaf and preen outside the colony fence along the beach strand and Santa Ana River mouth. Least terns forage on small fish in the near shore ocean, the Santa Ana River and river mouth, and the Santa Ana River estuary. When chicks fledge, they rest on the banks and sand bars at the mouth of the Santa Ana River as well as within the boundaries of the Huntington Beach Least Tern Preserve (Housel et al. 2014). 'Meeting in person with Department staff Hans Sin and Supervisor Michelle Steel and staff. July 6, 2016. Orange County Supervisors' office. Ms. Chris Uzo-Diribe (FWS- OR- 17B0026-17CPA0028) 3 The presence of leashed or unleashed dogs on the beach and in the river mouth is harmful to snowy plovers and least terns, causing individuals to flush frequently, unnecessarily expending energy reserves. The presence of dogs on the beach or in the river mouth can also result in less time spent foraging (Lafferty 2001). A reduction in foraging time is likely to reduce the ability of snowy plovers and least terns to build fat reserves necessary for migration and reproduction. Dogs may also capture and kill or injure snowy plovers or least terns. For example, at Surfside Beach, Orange County, California, a snowy plover was captured by a dog in September 2009, but was recovered, rehabilitated and released (Ryan and Hamilton 2009) and at Coal Oil Point, Santa Barbara County, California, one snowy plover chick was killed by an unleashed dog (Lafferty et al. 2006). The IS/ND does not adequately define the baseline conditions of the project area including baseline recreational use, traffic, parking availability and distribution and abundance of wildlife resources. In addition, the IS/ND does not quantify the anticipated increase in public use at the Santa Ana River mouth that is likely to occur if this area is designated as a dog park. Understanding the baseline conditions and anticipated increase in recreational use that would result from designation as a dog park is essential to assessing the direct and indirect effects to wildlife resources, including listed species. The proposed designation of this area as a dog park is likely to result in increased recreational use and dog presence. We remain concerned that increased recreational use, dog presence, and likely changes in foot traffic patterns (i.e., increased travel from the State Parks parking lots to the south side of the river channel, increased foot traffic up the river and into Santa Ana River estuary) will significantly impact the snowy plover and least tern. We recognize that the current proposal states that dogs may only be off -leash outside the least tern breeding season, but the anticipated increased presence of dogs—leashed or unleashed—in sensitive habitat would impact the least tern and snowy plover. Specific Comments: 1. The IS/ND does not recognize that impacts to species protected by the Act and CESA, such as least tern and snowy plover, may be significant without mitigation. The Wildlife Agencies offer the following evidence as to why significant impacts have potential to occur as a result of the project ordinance change: a. The IS/ND implies that dogs may have an impact on endangered and threatened species if allowed off leash during the nesting season (page 3, IS). Although the IS checklist concludes that the project's impact to biological resources would be less than significant, the impact analysis goes on to cite that biological -based avoidance measures would apply after project completion (i.e., dogs on leashes during the snowy plover and California least tern nesting seasons of March through September). b. There are documented instances of dogs capturing western snowy plovers in Orange County (Surfside Beach; Ryan and Hamilton 2009). In Santa Barbara County a snowy plover chick was killed by an unleashed dog (Coal Oil Point; Lafferty et al. 2006). Even if a direct attack does not occur, the mere presence of dogs on the beach is harmful to snowy plovers, causing them to flush frequently, expend energy reserves unnecessarily, and spend less time foraging (Lafferty 2001). Because of this, in Los Angeles and Ventura Counties, the Service has recommended avoidance to reduce impacts to less than significant in cases where activity similar to that described in the project was proposed (Service 2016a.). Ms. Chris Uzo-Diribe (FWS- OR- 17B0026-17CPA0028) 4 c. Predation managers have documented three instances of take of least tern from domestic dogs in San Diego County. Most notably, a least tern was attacked and killed by a dog that dug under a chain link fence to access an enclosed colony similar to that at the project site (Bonestee12016, pers. comm.). A ND is appropriate only when the lead agency assesses there is no substantial evidence that the proposed project may have a significant effect on the environment; a Mitigated Negative Declaration (MND), alternatively, applies when changes to the project or other mitigation measures are imposed such that all potentially significant effects are avoided or reduced to a level of insignificance. These factors, as well as failure to include an adequate environmental baseline within the ND (see Specific Comment 2 below), lead us to conclude that the avoidance and minimization measures provided in the project description of the ND should have been incorporated into mitigation monitoring or reporting program commitments (California Public Resources Code, Section 21081.6; CEQA Guidelines, Section 15074(d)), along with other mitigation measures that bring impacts below a level of significance, as required under CEQA. Based on the potential for the project to have a significant impact on biological resources, we conclude that an ND is not the appropriate environmental document for this project. 2. Section 3.1.4 of the ND (Biological Resources) provides inadequate information regarding the biological resources on site and is based on a single reconnaissance -level site visit conducted in September 2016. The information provided is inadequate to draw the "less than significant effect" determination presented. Information regarding the numbers of least terns and snowy plovers that use the site, location of snowy plover roosts, and measures that will be taken to ensure adequate separation between dogs and roosting snowy plovers are necessary. For example, in February 2015, 18 snowy plovers were recorded at adjacent Huntington State Beach, and in February 2016, 16 snowy plovers were recorded. Figure 3 of the IS portrays an inaccurate representation of the Western Snowy Plover Critical Habitat Unit CA 47, the mouth of the Santa Ana River. As depicted in Figure 1, this unit lies immediately north of the river channel, and extends to the ocean. As noted on the figure, "shoreline data may not accurately represent the dynamic shoreline environment." However, the habitat area is immediately adjacent to the water in the dynamic shoreline environment. The description of the boundaries of Snowy Plover Critical Habitat Unit 47, including a figure, should be included in the project's final environmental document. The presence of leashed and off -leash dogs and anticipated increase in recreational use would degrade occupied snowy plover habitat, including Critical Habitat Unit CA 47. As proposed, there would be no fence or barrier or intensified enforcement to preclude off -leash dogs from using snowy plover habitat. Snowy plover Critical Habitat includes, in accordance with section 3(5)(A)(i) and 4(b)(1)(A) of the Act and regulations at 50 CFR 424.12, the physical and biological features essential to the conservation of the species which may require special management considerations or protection. Physical and biological features include, but are not limited to: (1) space for individual and population growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, and rearing (or development) of offspring; and (5) habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of a species. When the Service designated critical habitat, the Ms. Chris Uzo-Diribe (FWS- OR- 17B0026-17CPA0028) Service indicated that "For areas lacking a Federal nexus, the Service will work with beach and land managers to implement recovery actions that will avoid or offset adverse effects of disturbance" (Service 2012). Therefore, a discussion of how the project activities would or would not significantly impact this Critical Habitat Unit, including any applicable mitigation measures, should be included in the project's environmental document. 4. Allowing off -leash dogs in and adjacent to snowy plover habitat is likely to harass and potentially harm individual snowy plovers. The presence of off -leash dogs within or adjacent to the areas where snowy plovers congregate to forage and roost will cause the birds to flee, resulting in increased stress and expenditure of energy. Repeated flushing may result in complete avoidance of important roosting and foraging sites by snowy plovers. In addition, off -leash dogs are likely to chase and occasionally catch, injure, or kill snowy plovers using beach habitat within and adjacent to the river. Actions that result in "take" of federally protected birds are prohibited under section 9 of the Act. Take is defined in Section 3(19) of the Act as "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." The Wildlife Agencies are also concerned about enforcement of on- and off -leash activity. The IS/ND does not describe how leash restrictions proposed by the project will be enforced, or what penalties will result from failing to comply with the ordinances. Without appropriately robust enforcement, significant impacts to least tern and snowy plover may occur in the form of incidental take. As a State fully protected species, take cannot be authorized for least tern by the Department. A thorough discussion of enforcement, therefore, including history of enforcement on the site with regard to current ordinances, should be included in the project's environmental document. A mitigation measure describing how enforcement will be implemented should also be included. 6. Measures to ensure that dog owners do not park at Huntington State Beach parking lot and walk adjacent to the Least Tern Colony en route to the proposed dog park are necessary. Section 3.1.16 of the IS (Transportation/Traffic) does not adequately address the availability for parking for a dog park, or the potential for increased use of the parking lot at Huntington State Beach. An inadequacy of parking adjacent to the southern side of the river (in Newport Beach) is likely to result in dog owners parking at Huntington State Beach parking areas. If dog owners park at Huntington State Beach, dog owners and dogs would walk immediately adjacent to the fenced Least Tern Colony or through the snowy plover Critical Habitat on the ocean -ward side of the Least Tern Colony to reach the proposed dog park area. Increased foot traffic and dog traffic would increase disturbance to least terns and snowy plovers. The project's environmental document should include a thorough discussion of how these factors will impact biological resources, and incorporate mitigation measures that make those.impacts less than significant. In closing, the Wildlife Agencies re -iterate our November 21, 2016, recommendation that the proposal to designate the mouth of the Santa Ana River as a dog park and allow off -leash dogs be permanently abandoned so that the project avoids significant impacts to biological resources. Snowy plovers and least terns depend upon this area for food, resting, breeding, and chick rearing. We remain interested in working with you to increase awareness, incorporate good stewardship practices, and strengthen habitat conservation efforts on Orange County beaches, including the potential of developing a HCP to address recreational impacts and overall conservation of the least tern and snowy plover on Orange County beaches. We have recommended that "Special Protection Zones" be Ms. Chris Uzo-Diribe (FWS- OR- 17B0026-17CPA0028) developed on beaches in Los Angeles County [Service 2016 (enclosed)], and a similar approach would be appropriate on Orange County Beaches. The Wildlife Agencies are available to assist the County in addressing our concerns. We request an opportunity to review and comment on any response that the County has to our comments and to receive notification of the forthcoming hearing date for the project (CEQA Guidelines; § 15073(e)). If you have any questions regarding these comments, please contact Sandy Vissman of the Service at 760-431-9440, extension 274 or Jennifer Turner of the Department at 858-467-2717. Sincerely, JONATHAN SNYDER Digitally signed by JONATHAN SNYDER Date: 2016.12.1415:19:16 -os'00' for Karen A. Goebel Assistant Field Supervisor U.S. Fish and Wildlife Service Enclosure cc: Andrew Willis, California Coastal Commission Hans Sin, California Department of Fish and Wildlife Greg Gauthier, California State Coastal Conservancy Michelle Steel, Orange County Board of Supervisors Scott Morgan, State Clearinghouse Carolyn Lieberman, U.S. Fish and Wildlife Service State Clearinghouse Gail Sevrens Environmental Program Manager California Department of Fish and Wildlife Ms. Chris Uzo-Diribe (FWS- OR- 17B0026-17CPA0028) LITERATURE CITED Housel, N., S. Hoffman, D. Zembal, C. Kam, T. Barbee, B. Johnson, M. Aimar, M. Paramo, C. Macbeth. 2014. Activity of the California Least Tern (Sterna antillarum browni) at Huntington Beach State Park Orange County, California. 17 pages. Lafferty, K.D. 2001. Disturbance to wintering western snowy plovers. Biological Conservation 101 (2001) 315-325. Lafferty K.D., D. Goodman, C.P. Sandoval. 2006. Restoration of breeding by snowy plovers following protection from disturbance. Biodivers. Conserv. 15:2217-2230. Page, G.W. and W.D. Shuford. 2000. U.S. Shorebird Conservation Plan Southern Pacific Coast Regional Shorebird Plan Version 1.0. 66 pages. Ryan, T. 2016. Los Angeles & Orange County Western Snowy Plover Monthly Report for October 2016. 14 pages. Ryan, T.P. and R. Hamilton. 2009. Surfside Beach Sand Replenishment Project, Snowy Plover Monitoring, Final Report. Prepared by Ryan Ecological Consulting, Pasadena, CA. 19 pp + appendices. [Service] U.S. Fish and Wildlife Service. 2012. Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Pacific Coast Population of the Western Snowy Plover; Final Rule. 77 Federal Register Volume 77, pages 36728-36869. [Service] U.S. Fish and Wildlife Service. 2016a. January 19, 2016 letter from Service to Jamie King, of California Department of Parks and Recreation, Angeles District. 08EVEN00-2015- CPA-0067. 6 pages. [Service] U.S. Fish and Wildlife Service. 2016b. November 21, 2016 letter from Service to Michelle Steel, of Orange County Board of Supervisors. FWS-OR-17B0026-17CPA0015. 2 pages. Personal Communication Bonesteel, Brian. 2016. U.S. Department of Agriculture. Personal communication regarding predator management at California least tern and western snowy plover colonies in San Diego. On file, California Department of Fish and Wildlife R5 Office. Dated December 5, 2016. Ms. Chris Uzo-Diribe (FWS- OR- 17B0026-17CPA0028) Santa Ana River Mouth (CA 47), Orange County, California I / "Shoreline data was derived from USGS 7.5 digital raster graphics. It may not accurately represent the dynamic shoreline environment." m 00 4, Legend Pacific Coast Western Snowy Plover ® Critical Habitat o, o of N Mites �� U.25 0 025 Kilometers Figure 1. Western Snowy Plover Critical Habitat Unit CA 47 ENCLOSURE "T United States Department of the Interior FISH AND WILDLIFE SERVICE Ventura Fish and Wildlife Office a H a a9 2493 Portola Road, Suite B Ventura, California 93003 IN REPLY REFER TO: 08EVEN00-2015-CPA-0067 January 19, 2016 Jamie King, Environmental Scientist California Department of Parks and Recreation, Angeles District 1925 Las Virgenes Road Calabasas, California 91302 Subject: Protective Measures for Western Snowy Plovers on Beaches in Los Angeles County, California Dear Ms. King: We, the U.S. Fish and Wildlife Service (Service), are contacting you and other beach administrators and stakeholders who have an interest in western snowy plovers (Charadrius nivosus nivosus), recreation, management, and operations on beaches in Los Angeles County. Western snowy plovers are known to winter on beaches in Los Angeles County and have attempted to nest at Surfrider Beach in Malibu. After a series of discussions, meetings, and electronic mail exchanges with beach administrators, stakeholders, and western snowy plover experts, we have developed some measures we recommend to help protect this species on beaches in Los Angeles County and not interfere with continued recreation activities, and beach management operations. The Service's responsibilities include administering the Endangered Species Act of 1973, as amended (Act), including sections 7, 9, and 10. Section 9 of the Act and its implementing regulations prohibit the taking of any federally listed endangered or threatened species. Section 3(19) of the Act defines take to mean to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Service regulations (50 CFR 17.3) define harm to include significant habitat modification or degradation which actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering. Harassment is defined by the Service as an intentional or negligent action that creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Exemptions to the prohibitions against take in the Act may be obtained through coordination with the Service in two ways. If a project is to be funded, authorized, or carried out by a Federal agency and may affect a listed species, the Federal agency must consult with the Service, pursuant to section 7(a)(2) of the Act. If the proposed project does not involve a Federal agency, but may result in the take of a listed animal species, the project proponent should apply to the Service for an incidental take permit, pursuant to section I0(a)(1)(B) of the Act. To Jamie King 2 qualify for the permit, a project proponent would need to submit an application to the Service together with a habitat conservation plan (HCP) that describes, among other things, how the impacts of the proposed taking of federally listed species would be minimized and mitigated and how the plan would be funded. A complete description of the requirements for a HCP can be found at 50 CFR 17.32 or our website (http://www.fws.gov/ventura). The Pacific coast population of the western snowy plover was listed as threatened on March 5, 1993 (58 Federal Register (FR) 12864) under the authorities of the Act. Critical habitat for the species, which includes Zuma Beach (Unit CA 43), Malibu Beach (Unit CA 44), Santa Monica Beach (Subunit CA 45A), Dockweiler North (Subunit CA 45B), Dockweiler South (Subunit CA 45C), and Hermosa State Beach (Subunit 45D), was designated on June 19, 2012 (77 FR 36728). Ryan et al. (2014) determined that western snowy plovers in Los Angeles County overwinter at seven primary spots. These overwintering sites are within critical habitat for the subspecies and include locations at Zuma Beach (near Lifeguard Tower 9 and Zuma Lagoon), Malibu Lagoon (Surfrider Beach), Santa Monica Beach, Dockweiler State Beach (near Lifeguard Tower 58), Hermosa Beach, and Cabrillo Beach. Ryan et al. (2014) also reported that western snowy plovers occasionally overwinter at sites at Leo Carrillo State Beach, Paradise Cove, Dan Blocker County Beach, Big Rock Beach, Will Rogers State Beach, Venice Beach, central Dockweiler State Beach, El Segundo Beach, Manhattan Beach, Redondo Beach, and Terminal 400 in Los Angeles Harbor. Western snowy plovers exhibit strong fidelity to overwintering sites, returning to the same beaches every year after nesting elsewhere and migrating. Overwintering habitat is important for western snowy plovers and other migratory shorebirds because the time spent at these sites is when these birds build fat reserves for spring migration and the upcoming breeding season. Overwintering sites also provide connectivity for dispersal between breeding sites. Furthermore, with appropriate management, sites that currently support only wintering western snowy plovers have the potential to attract new nesting western snowy plovers with appropriate management. This has been demonstrated at Coal Oil Point, Santa Barbara County, and Hollywood Beach, Ventura County. Western snowy plovers also made a nesting attempt at Surfrider Beach, Malibu, Los Angeles County, after overwintering there. The importance of overwintering beaches to the western snowy plover tends to be overlooked and discounted when it comes to conservation of the subspecies, with more attention being given to known breeding locations. However, the Service acknowledged the importance of overwintering habitat for the western snowy plover by including such areas in the critical habitat designated for the subspecies in June 19, 2012 (77 FR 36728). We understand that beaches in Los Angeles County, including the seven aforementioned overwintering sites, experience disturbance from mechanical raking (i.e., beach grooming) for removal of garbage, kelp, and other debris. Dugan et al. (2003) reports that over 160 kilometers of southern California sandy beaches are groomed regularly and that grooming decreases the species richness, abundance, and biomass of wrack -associated invertebrates that are likely important western snowy plover prey resources. Beach grooming also removes favorable nesting habitats and likely destroys nest scrapes and eggs. Jamie King 3 Other activities occurring on Los Angeles County beaches that could lead to the disturbance of overwintering western snowy plovers include recreational use, vehicular traffic (e.g., lifeguard patrols), domestic animals (i.e., dogs), and predators attracted to human refuse (i.e., trash). Recreational activities such as sunbathing, swimming, dog walking, and sports, require support services such as police and lifeguard patrols, water quality monitoring, erosion control, and trash pick-up, which increase the presence of vehicles on the beach. Vehicles driven on the beach have struck and killed western snowy plovers, as well as other shorebirds, in Los Angeles County. For example, on January 9, 2007, a western snowy plover was found dead by volunteer monitors on Zuma Beach in a fresh tire track due to a vehicle strike. The only vehicle observed on the beach that morning was a Lifeguard truck conducting routine patrols. On, August 19, 2013, a California State Park monitor witnessed another western snowy plover being struck by a Lifeguard vehicle during routine patrols. In this particular case, the western snowy plover initially survived the strike with a crushed head and was transported to a rehab center in Los Angeles; however, the plover died from the injury. Other instances have also been documented of black -bellied plovers (Pluviales squatarola) being struck by vehicles at Dockweiler State Beach on March 17, 2009, and November 24, 2009. The mere presence of dogs on the beach is harmful to western snowy plovers, causing them to flush frequently, unnecessarily expending energy reserves, as well as spending less time foraging (Lafferty 2001). In addition to expending more energy evading dogs and spending less time foraging, there are instances when dogs actually capture and kill or injure western snowy plovers. For example, at Surfside Beach, Orange County, California, a western snowy plover was captured by a dog in September 2009, but was recovered, rehabilitated and released (Ryan and Hamilton 2009). Also at Coal Oil Point, Santa Barbara County, California, one western snowy plover chick was killed by an unleashed dog (Lafferty et al. 2006). Because monitoring of overwintering western snowy plovers is extremely limited at some locations, if it occurs at all, we believe the impacts to western snowy plovers from beach grooming, recreational activities, vehicular traffic, dogs, and predators attracted to food and trash to beaches is much greater than what we observe. Furthermore, the discovery of a dead or injured western snowy plover is unlikely because the bodies of these birds are taken by scavengers or removed by the daily beach grooming activities. Efforts to protect wintering western snowy plovers on Los Angeles County Beaches should be implemented within 500 feet of the central roost location. The following measures should be implemented from the arrival of the first returning western snowy plovers in July until they depart in April to May each year. Specifically, at Surfrider Beach in Malibu these measures should be implemented year-round for the entirety of California Department of Parks and Recreation (State Parks) property. For all beaches in Los Angeles County, these areas should be referred to as "Special Protection Zones" and managed and maintained differently from adjacent areas of beaches without roosting western snowy plovers. Jamie King 4 Recommendations for Special Protection Zones. Routine Operation of Vehicles and Heavy Machinery • All drivers of vehicles and machinery that are operated on sections of beach where western snowy plovers occur should receive annual training per a Service approved program to avoid western snowy plovers. Training logs should be kept for all staff. State Parks staff should have successfully completed the Beach Driving Operations Training Course and annual refresher courses. • Vehicles should avoid operating within Special Protection Zones, with the exception of activities such as essential patrols, trash pick-up and other activities agreed to by wildlife agencies as being essential. Vehicles simply transiting between points should not be allowed within these areas. For Surfrider Beach specifically, the following measures should be implemented: 1) All beach vehicle operation will be limited to emergency response activities (e.g., Code "R" responses; rescue preventions, including boat warnings; urgent law enforcement issues; and emergency medical service calls); and 2) If heavy equipment is needed onsite for emergency activities (boat rescue, structure protection) or other projects consistent with State Park's mission, State Parks resource staff will be contacted for approval prior to accessing the site, and as needed, to provide monitoring for vehicles at all times when onsite. • Visible markers, possibly with signage should be placed within 100 feet of the top of the beach slope and at the inland corners of the Special Protection Zones to remind vehicle operators of their presence. (This is not applicable at State Park's section of Surfrider Beach because the entire area is within a Special Protection Zone). • When essential activities must occur, vehicles should remain below a maximum 10 miles per hour speed limit and if western snowy plovers are encountered, the driver should back up at least 50 feet and/or alter their route to avoid flushing plovers. Beach Maintenance and Clean up • Regular sand grooming should be discontinued within Special Protection Zones. This activity both flushes the birds and removes important foraging resources (e.g. surf -cast kelp). These small areas should be cleaned by hand crews, trained in western snowy plover avoidance. If mechanical clean-up is necessary, it should be done in the presence of a qualified western snowy plover monitor who will locate the roosting plovers and ensure that machinery does not flush or disturb them. • For Surfrider Beach, as agreed to by State Parks and Los Angeles County, sand grooming is not permitted at Surfrider Beach on State Park's property. Wrack is to be left in place and trash removed by hand. Recreational Activities • "Refuge Areas" should be created using symbolic fencing or another barrier deemed suitable for this use during periods of high beach use at popular beaches in July, August, and September. These should be erected in a 300 -foot diameter (or other configuration suitable for the beach, but roughly 300 feet long) around the traditional center of the plover's roosting Jamie King areas on popular beaches such as Zuma, Dockweiler State Beach 58, and Hermosa Beach. Signage should be placed on the barrier such as has been done at Surfrider Beach in Malibu (which used signs made by local school children). • Large-scale recreational activities such as triathlons, surf camps, beach volleyball camps, etc. should not be permitted within the Special Protection Zones. Docents should visit camps adjacent to the Special Protection Zones to talk to participants about western snowy plovers. • Enforcement of existing regulations for off -leash dogs should be increased within the Zones. Western Snowy Plover Awareness Training Any staff personnel that operate motorized vehicles on Los Angeles County beaches should be required to attend annual training to increase their awareness of western snowy plovers. This training should include a short instructional tutorial that describes the biology of the western snowy plover, its habitat and life history, its legal status, and the consequences of violating the Act. The tutorial slide show (e.g., power point type presentation) or informational hand-out would be developed by the Service with input from your respective agencies, California Department of Fish and Wildlife, and the Los Angeles Audubon Society. In addition to the tutorial, staff should view a video provided by the Service that demonstrates safe driving techniques on beaches with sensitive wildlife. Staff members should be required to sign a statement acknowledging they have viewed and understand the tutorial and video. The signed statement would be kept on file with the respective agencies in the employee's record. Although these measures should help reduce the potential for take of western snowy plovers, take, as defined earlier, is still likely to occur. And any take of listed species that would result from activities on your beaches would require either (a) exemption from the prohibitions against take in section 9 of the Act pursuant to section 7 or (b) take authorization pursuant to section 10(a)(1)(B) of the Act. Unless a Federal nexus exists that could cover the entire action area under an interagency consultation pursuant to section 7, we recommend that you seek an incidental take permit through the habitat conservation planning process, pursuant to section 10(a)(1)(B) of the Act. With your cooperation, we can help conserve the western snowy plover on public beaches while still providing recreational opportunities for tourists and the people of Los Angeles County. We suggest revisiting these recommended measures at least annually to ensure they continue to benefit the western snowy plover on public beaches in Los Angeles County while minimizing the impact on residents and beachgoers; however, we are available any time to discuss this program. As a reminder, this implementation of these recommended avoidance measures do not constitute authorization from us to take federally listed species in any manner. In the event that federally listed species are detected anywhere where activities could result in take, you should contact us to assess any potential effects to listed species and the possible need for other avoidance measures. Jamie King 0 If you have any questions regarding the western snowy plover or other federally listed species on public beaches in Los Angeles County, please contact Chris Dellith or Bill Standley of my staff at (805) 644-1766, extensions 227 or 315, respectively. Sincerely, St phen P. Henry Field Supervisor Identical Letter to: Fernando Boiteux, Los Angeles County Fire Department Charlotte Miyamoto, Los Angeles County Beaches and Harbors loannice Lee, City of Los Angeles Dean Kubani, City of Santa Monica cc: Jim Watkins, U.S. Fish and Wildlife Service, Arcata Office Jonathan Snyder, U.S. Fish and Wildlife Service, Carlsbad Office Erin Dean, U.S. Fish and Wildlife Service, Law Enforcement Office Dan Swenson, U.S. Army Corps of Engineers Nancy Frost, California Department of Fish and Wildlife Stacey Vigallon, Los Angeles Audubon Society