HomeMy WebLinkAbout05 - Big Canyon Creek Restoration MNDCITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. S
August 11, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Robert Stein
(949) 644 -3322 or rstein @newportbeachca.gov
SUBJECT: COUNCIL APPROVAL OF THE BIG CANYON CREEK RESTORATION
PROJECT AND ADOPTION OF THE MITIGATED NEGATIVE
DECLARATION
RECOMMENDATION:
Approve the Big Canyon Creek Restoration Project and adopt the Mitigated Negative
Declaration.
DISCUSSION:
The City of Newport Beach, as the Lead Agency, has prepared a revised Mitigated
Negative Declaration (MND) for the Big Canyon Creek Restoration Project. California
State Law requires that the Lead Agency conduct environmental review for all pending
projects that have the potential to result in any significant adverse effects on the
environment that could occur if a project is implemented. Based on an Initial Study and
a Project Feasibility Design Study, City staff has concluded that, with mitigation, the Big
Canyon Creek Restoration Project will not have a significant effect on the environment.
On September 11, 2007, the City Council approved the original MND for the proposed
project in accordance with the implementing guidelines of the California Environmental
Quality Act (CEQA). As the project moved forward to obtaining resource agency
permits, water quality sampling in Big Canyon Creek found selenium concentrations in
the freshwater marsh that potentially posed a biological hazard for birds, fish and
amphibians. Staff briefed Council on this problem at Study Session on October 28th
2008. Subsequent water quality, sediment and animal tissue testing confirmed these
high levels of selenium.
To address this problem, the project was redesigned to relocate the proposed
freshwater ponds into a single pond offline from Big Canyon Creek. Provisions have
also been made to incorporate a subterranean treatment wetland into the project once
more research data is available.
Big Canyon Creek Restoration Project —Adoption of Mitigated Negative Declaration
August 11, 2009
Page 2
In light of these design changes, the MND was revised. The revised MND finds that with
the incorporation of mitigation measures, the proposed project would not have a
significant effect on the environment. The MND states that the proposed Big Canyon
Creek Restoration Project would result in less- than - significant impacts for the following
issues: aesthetics, agricultural resources, air quality, biological resources, cultural
resources, geology and soils, hazards and hazardous materials, hydrology and water
quality, land use and planning, mineral resources, noise, population and housing, public
services, recreation, transportation /traffic, and utilities and service systems. The revised
MND was circulated for a 30 -day public review period (July 02 to August 03, 2009). A
notice of the revised MND was posted at City Hall and at several locations at Big
Canyon. A copy of the notice is attached.
Comments have been received from two parties.
The Department of Toxic Substances Control expressed concerns about on -site
hazardous materials. The MND states there are no known hazardous materials
within the Project Area and the Project would not involve the transport, use, or
disposal of any hazardous materials.
2. Comments from California Department of Fish and Game are attached along
with the responses as prepared by our consultant, WRA.
Staff thinks all concerns have now been addressed and recommends Council
acceptance of the revised MND.
Prepared by:
obert Stein
Assistant City Engineer
Exhibits
1. Resolution of Approval
2. Response to Public Comments
3. Posted MND Notice
4. Response to Comments from California Department of Fish and Game
RESOLUTION NO. 2009-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NEWPORT BEACH
ADOPTING A REVISED MITIGATED NEGATIVE DECLARATION FOR THE BIG
CANYON CREEK RESTORATION PROJECT LOCATED AT 1900 BACK BAY DRIVE
WHEREAS, a Mitigated Negative Declaration (MND) was prepared and
approved by the City Council on September 11, 2007; and
WHEREAS, water sampling was performed and high selenium concentrations
were discovered in the water column, sediment and animal tissue; and
WHEREAS, the project design was then revised to address this concern in
consultation with the California Department of Fish and Game, United States Army
Corps of Engineers, California Coastal Commission and Regional Water Quality Control
Board; and
WHEREAS, a revised MND was then prepared based on the revised design in
compliance with the California Environmental Quality Act (CEQA), the State CEQA
Guidelines, and City Council Policy K -3 and then circulated for public comment between
July 2`1 and August 3r', 2009; and
WHEREAS, on the basis of the entire environmental review record. the MND
finds that the proposed project, with mitigation measures, will have a less than
significant impact upon the environment; therefore be it
BE IT FURTHER RESOLVED, that the City Council of the City of Newport Beach
does hereby find, on the basis of the whole record, that there is no substantial evidence
that the project, with mitigation measures, will have a significant effect on the
environment, and that the Revised Mitigated Negative Declaration reflects the City
Council's independent judgment and analysis. The City Council hereby adopts the
Revised Mitigated Negative Declaration. The document and all material, which
constitute the record upon which this decision was based, are on file with the Public
Works Department, City Hall, 3300 Newport Boulevard, Newport Beach, California.
City Clerk PASSED, APPROVED AND ADOPTED at a regular meeting of the
City Council of the City of Newport Beach held on the 11th day of August, 2009.
Mayor
ATTEST:
City Clerk
NOTICE OF INTENT TO ADOPT MITIGATED NEGATIVE DECLARATION
Big Canyon Creek Restoration Project
June 26, 2009
The City of Newport Beach, as the Lead Agency, has prepared a Revised Draft Mitigated
Negative Declaration (MND) for the Big Canyon Creek Restoration Project. The City of
Newport Beach proposes to restore Big Canyon Creek within the existing nature park
between jamboree Road and Back Bay Drive. Under the General Plan, the area is zoned for
preservation and is designated for open space conservation. Surrounding areas are
residential developments on the bluff and Upper Newport Ecological Preserve to the west.
The proposed project would consist of the following;
• Restore 6.62 acres of historic tidal wetlands at the mouth of Big Canyon
• Realign Back Bay Drive to follow the historical tidal boundary at the mouth of Big
Canyon
• Convert 2.4 acres of the degraded freshwater marsh to tidal wetland and modify 0.8
acres remaining marsh to a transitional marsh complex that will support a more
diverse community of native wetland plants
• Excavate the lower freshwater pond to create 1.5 acres of open water to use as
habitat area and an element of the water quality improvement design.
• Excavate the upper freshwater pond to create 0.5 acres of open water to provide a
sediment management function and open water habitat
• Enhance water quality through wetland marshes, ponds, and BMPs
• Enhance public use and educational opportunities; provide interpretive signage and
coordinated trail access
• Provide and repair maintenance service access and repair or upgrade any incidental
facilities to meet codes and safety requirements
Revised Draft MND, and the accompanying Feasibility Design Study, is available for review
at the public counter of the City's Public Works Department, City Hall, 3300 Newport
Boulevard from 09:00 a.m. to 05:00 p.m. Monday through Friday. These documents are
also posted at the City's website.
http:%lwww city newport -beach ca us/ CMOIBigCanyonCreekRestorationProject htm
The public review period for this draft MND begins July2, 2009, and ends on August 3,
2009.
California State Law requires that the Lead Agency prepare a Mitigated Negative
Declaration for a project subject to the California Environmental Quality Act when an Initial
Study identifies potentially significant environmental effects, but revisions in the project
plans or proposed mitigation measures would avoid such effects or would mitigate the
effects to a point where no significant effects would occur..Based on an Initial Study and a
Project Feasibility Design Study, the City has concluded that with mitigation, the Big
Canyon Creek Restoration Project will not have a significant effect on the environment and
intends to recommend that the City Council adopt a Mitigated Negative Declaration for the
proposed project.
If you wish to appeal the appropriateness or adequacy of this document, your comments
should be submitted in writing prior to the close of the public review period. Your
comments should specifically identify what environmental impacts you believe would
result from the project, why they are significant, and what changes or mitigation measures
you believe should be adopted to eliminate or reduce these impacts. Comments and
questions maybe directed to:
Mark Reader, Project Manager
City of Newport Beach - Public Works Department
3300 Newport Blvd
Newport Beach, CA 92663
Phone: (949) 981 -5260
Email: mreaderOciiy.nel2ort- beach.ca.us
Adoption of a Negative Declaration does not constitute approval of the proposed project.
The decision to approve or deny the project described above will be made separately as
required by City Ordinance and other regulatory compliance.
ts]jwra
ENVIRONMENTAL CONSULTANTS
August4,2009
California Department of Fish and Game
South Coast Region
4949 Viewridge Avenue
San Diego, CA 92123
Phone: (858) 467 -4201
ATTN: EDMUND PERT
RE: RESPONSE TO COMMENTS ON THE MITIGATED NEGATIVE DECLARATION FOR BIG CANYON
CREEK RESTORATION PROJECT SCH 2007071081, ORANGE COUNTY
Dear Mr. Pert:
On behalf of the City of Newport Beach Department of Public Works, WRA, Inc. (WRA) submits
this letter in response to your comments received July 29, 2009 (Attachment A) regarding the
current Mitigated Negative Declaration (MND) for the Big Canyon Creek Restoration Project
(Project).
Several items have been outlined in your letter that address project features, impacts and
mitigation measures. The following sections provide comment summaries as well as WRA's
responses to address each of the comments and recommendations posed by the Department of
Fish and Game (DFG) in regards to avoiding or minimizing direct and indirect impacts on
biological resources. Where appropriate, the mitigation measures have been revised to
incorporate the Department's recommendations as equivalent or more effective than those
proposed in the Mitigated Negative Declaration and will be recommended to the lead agency for
adoption.
Direct Impacts to Endangered Species
1) Comment Summary: The DFG believes the MND contains an inaccurate
description of the project's environmental baseline related to Belding's savannah
sparrow (Passerculus sandwichensis beldingrl populations by utilizing bird
surveys from 2003 and the City should revise the MND to include recent surveys
undertaken by or on the behalf of the DFG andlor United States Army Corps of
Engineers. Alternative mitigation measures for the sparrow are proposed and the
DFG believes these measures should be incorporated into the proposed
Mitigation Measure Biological Resources -1 (MMBRA).
Response: The MND was prepared using the best available information related to
biological resources at the time of preparation. California Natural Diversity Database
(CNDDB) records for June 2009 reflect no new species occurrences for Belding's
savannah sparrow at Big Canyon beyond those discussed in the Biological Resources
Technical report (initial Study Appendix B). The results of the 2003 survey related to
bird species presence, including Belding's Savannah Sparrow (BBS), provided the
4169 -6 East Francisco Blvd... San Rafael, CA 94901 (415) 454 -6866 lei (415) 454 -0129 fax infoamo-co.com w .Way .wM
necessary documentation on the species presence to assess the potential impacts to
BBS and to develop mitigation measures.
WRA concurs with the Department's recommendation on the BBS mitigation measure as
more effective and will revise MMBR -1 as follows:
"...Project construction should be limited to the non - breeding period for sensitive
wildlife, generally between September 1st tand February 14th. All grading
operations involving heavy equipment should be conducted outside of the
nesting season. However, should work be conducted outside this period, a
qualified biologist will conduct preconstruction surveys within two weeks prior to
the commencement of construction to verify the presence or absence of nesting
birds, including raptors, passerines, and their nests.. If the survey indicates the
potential presence of nesting raptors or protected passerines, construction
workers will adhere to CDFG avoidance guidelines, which are typically a
minimum 500 -foot buffer zone surrounding active raptor nests and a 250 -buffer
zone surrounding nests of other birds..."
If initial vegetation removal or other activities (besides heavy equipment grading)
would need to occur within or in the vicinity of pickle weed (Salicomia virginica)
between February 15th and August 30th, then the City should conduct focused
surveys for Beldings Savannah Sparrow (BBS) prior to initial vegetation removal
and contact the Department with the results if BBS breeding territories will be
removed.
The City will coordinate with the DFG to obtain bird survey data referred to in the DFG's
comment letter. This information will assist the City in implementing the established
avoidance and mitigation measures.
2) Comment Summary: The DFG believes the MND contains an inaccurate
description of the project's environmental baseline related to salt marsh bird's
beak (SMBB, Cordyianthus maritimus ssp. maritimus) populations by utilizing
plant surveys from 2003 and the Initial Study should be revised to include recent
surveys undertaken by or on the behalf of the DFG. The DFG has attached
specific comments on the avoidance and monitoring plan for SMBB as
Attachment 1 to their July 29, 2009 fetter.
Based upon observations by DFG staff in 2008 and 2009 at least two individuals of
SMBB were observed growing within the project's limit of grade. As a result, the
DFG believes the current mitigation measure (MMBR -1) to avoid SMBB
populations within 100 feet of project construction by marking populations and
utilizing construction fencing during construction may not be able to provide a
significant buffer to avoid direct impacts to the plant. If impacts can not be
avoided, the DFG states that incidental take authority under California
Endangered Species Act (CESA) will be required prior to actions that are likely to
result in take of any plant or animal species listed under CESA. The DFG
recommends that the City conduct floristic surveys for sensitive plants, including
SMBB, during the appropriate time of year. The DFG also recommends that the
City submit surveys and consult on the need to obtain an Incidental Take Permit
under §2081 or Consistency Determination under §2080.1 of the Fish and Game
Code before proceeding with implementation of the project as currently
described.
Response: The MND was prepared using the best available information related to
biological resources at the time of preparation. CNDDB records for June 2009 reflect no
new species occurrences at Big Canyon for SMBB beyond those discussed in the
Biological Resources Technical report (Initial Study Appendix B). The project was
designed to avoid the major population areas occupied by SMMB; however, the City
recognizes that individuals of SMMB may become established within the grading
footprint from year to year.
The City will coordinate with the DFG to obtain SMBB survey data referred to in the
DFG's comment letter. The City has appreciated the Department's review during the
design phase on the City's plan to avoid existing populations of SMBB. The City
understands that, based on recent Department surveys, a few individual plants may
have become established within the grading footprint. However, implementation of the
project as proposed would not substantially reduce the number or restrict the range of
SMBB, and therefore with the proposed mitigation would not cause significant impacts to
this species under CEQA thresholds. However, based on the Department's comments,
WRA recommends to the City that the MMBR -1 be revised as follows:
"...Populations of Cordyianthus maritimus ssp. maritimus within 100 feet of
project construction will be marked and construction fencing will be erected to
protect these areas during construction. A seed collection and monitoring
program has been developed, and additional mitigation and avoidance measures
are described in the Salt Marsh Bird's Beak Avoidance and Monitoring Plan
(WRA, Inc 2009, Appendix D). If, upon review of any recent SMMB survey
results and in consultation with the DFG, it is determined that the project would
"take" any individuals of SMBB, the City will pursue an Incidental Take Permit
under the California Endangered Species Act through the DFG.
This measure further reduces the potential for direct impacts to populations of SMBB
adjacent to, as well as those that may be found within the Project limit of grade.
In addition, the City will take into consideration the comments and recommendations
described in Attachment I of the July 29, 2009 comment letter on the Salt Marsh Bird's
Beak Avoidance and Monitoring Plan.
Department Jurisdiction
3) Comment Summary: To facilitate the DFG's issuance of the project's 1602
Streambed Alteration Agreement when CEQA applies, the DFG, as a Responsible
Agency under CEQA may, consider the local jurisdiction's (Lead Agency)
document for the project. To minimize additional requirements by the DFG under
CEQA, the DFG believes the Initial Study should fully identify the potential
impacts to the lake, stream or riparian resources and provide adequate avoidance,
mitigation, monitoring and reporting commitments for issuance of the Agreement.
The Initial Study should include specific language to clarify the project's affects
on the environment. The following would assist the DFG In determining an
accurate and complete description of the project:
a. The MND should concisely summarize permanent and temporary impacts
to DFG jurisdiction and also define the duration of temporary habitat
impacts. For instance permanent impact to DFG jurisdiction will be XX
acres,
b. The MND should include a clear description and revised graphics with
acreage of permanent and temporary impacts to vegetation communities,
regardless of regulatory jurisdiction and should reflect the entirety of the
action on the environment. The revised Initial Study should include a table
with revised estimates of acreage affected by temporary, permanent,
restoration, and enhancement activities to existing habitat.
c. The MND should identify habitat types within the MND designated "riparian
woodland" and "salt marsh" habitats, and provide estimates of acreage
affected by temporary permanent, restoration and enhancement activities.
The MND should be updated with this analysis and associated with the
analysis requested in 3 (a and b).
Response: The following materials included in the MND describe the habitats and
species, within DFG jurisdiction and as a whole project, that will be affected by the
project: Project Area Background (Section 2.3); Project Characteristics (Section 2.4);
Biological Resources (Section 3.IV) Environmental Setting; Figures 2, 6, 7, 8, 9 and 10;
and Appendix B. The following materials quantify the amount and describe the location
of habitat and species that will be impacted by the project: Section 2.4, Figure 2, Tables
1-4, and Section 1IV Discussion. The following materials describe and estimate the
areal cover of habitats that will be created as a result of the project: Section 2.4, Figures
3 -5 and 11, and the measures in MMBR -1, 2, and 3. This information adequately
describes the impacts to aspects of the environment that are the focus of the DFG's
comments and no changes to the MND are necessary.
The City will work with the DFG through the project's Streambed Alteration Agreement
evaluation to provide additional information necessary to complete the permit review .
process.
Indirect Impacts to Biological Resources
4) Comment Summary: The MND states an objective of the project is to "Preserve,
restore and create habitat for special status species." Presently the Initial Study
focuses on re- establishment of ecosystem, processes to improve selenium
management and productivity of tidal systems. Additionally, there is a focus to
improve public services. The MND Is limited in explaining how the goals
associated with establishing species diversity will be met. The DFG recommends
the Habitat Restoration Plan and Maintenance Specifications (Technical Appendix
A to the MND) include species monitoring. Appendix A should be revised to
include avian, entomological and herpetological goals and monitoring.
Response: The City appreciates the comments by the Department on the Habitat
Restoration Plan and Maintenance Specifications and will consider them in any revisions
to those Specifications; however this comment does not appear to address the
adequacy of the MND. The mitigation measures described in Section IIV of the MND
adequately describes actions that will be implemented to bring any impacts to biological
resources to levels that are less than significant.
5) Comment Summary: New salt marsh habitat proposed to be created upstream and
east of the existing Back Bay Drive would be constructed to create two flat areas
at an elevation of five feet MSL. Elevations above five feet MSL will consist of
steep berms at elevations that would have minimal opportunity to serve as future
sites for occupation of high marsh species. The DFG believes created salt marsh
habitat should include a greater percentage of habitat at elevations higher than
five feet MSL focusing on creating areas regularly inundated by tides but free from
twice daily tidal inundation (that is high elevations within middle littoral zones).
Response: This comment does not appear to address impacts or the adequacy of the
MND in determining the significance of project impacts. One project goal is to restore
tidal habitat that was lost as a result of fill placed in Upper Newport Bay and the habitat
ratios proposed reflect the range of habitats that historically existed at this site. The
diverse habitats to be restored are meant to benefit not only rare plants, but other fish
and wildlife resources dependent on daily tidal inundation such as tidal marsh and
mudflats.
One of the goals of this project is to promote expansion of sensitive species, specifically
the Salt Marsh Bird's Beak. The construction drawings do call for grading within the 5
foot Mean Sea Level (MSL) marsh plain to create mounded areas above 5 feet MSL,
which is conducive for Bird's Beak. Our calculations show that Mean Higher High Water
occurs at 5.23 MSL and the designs for high marsh fall within 5.25 -6.5 feet MSL. The
estimated percentage of the areas above 5 feet MSL in the marsh plain is between 5
and 10 percent, the resulting area of the mounds being a function of actual soil
conditions as it impacts equipment access and compactability. The grading of the salt
marsh, including the bench area for the pickle weed and Bird's Beak, will occur per the
construction documents and in consultation with the Department of Fish and Game.
Additionally, grading will accommodate high marsh mounds to the extent that is does not
create new impacts or detract from the total marsh habitat creation acreages stated in
the MND.
Nestino Bird Imoacts
6) Comment Summary: The MND indicates construction will avoid nesting bird
season or perform surveys if avoidance is infeasible, and if nesting is observed,
project biologists will establish appropriate biological buffers where no
construction will occur. The DFG states that all grading operations involving
heavy equipment should be conducted outside of nesting season. For project
activities other than heavy equipment grading, the DFG offers recommendations
for a mitigation measure to address potential impacts to breeding birds.
Response: The project must accommodate a number of timing constraints. The City
will strive to meet DFG recommendations, however, the revised MMBR -1 provides for
real and enforceable actions to reduce potential impacts to breeding birds to less -than-
significant levels. The City will require the contractor selected for this project to
implement best management practices to protect wildlife in compliance with state and
federal laws.
Summary
The City of Newport Beach has changed MMBR -1 of the Project's MND to reflect the comments
and recommendations provided by the DFG. These changes will ensure that MMBR -1 provides
adequate mitigation measures to ensure that project impacts to biological resources will be. less
than significant. The City will coordinate with the DFG to obtain survey data collected at Big
Canyon for 835 and SMBB. The City refers the DFG to sections of the MND to clarity project
impacts to biological resources, and the City will provide additional information to the DFG
through the Project's Streambed Alteration Agreement permit process. These modifications,
clarifications and responses provided in this letter ensure that impacts as a result of the Project
remain less than significant and no recirculation of the document is necessary.
Please feel free to contact me with any additional questions or comments at 415 -454 -8868 or
rwilson @wra -ca, corn
cerely,
Rosie Wilson
Biologist, WRA, Inc.
Enclosure
Cc.
Mark Reader, Department of Public Works, City of Newport Beach
Robert Stein, Department of Public Works, City of Newport Beach
David Kiff, City of Newport Beach, City Manager's Office
David Lepo; City of Newport Beach, Planning Department
Erinn Wilson, Califomia Department of Fish and Game, Huntington Beach
Jeffery Stoddard, California Department of Fish and Game, Newport Beach
Matt Chirdon, California Department of Fish and Game, Oceanside
Lilian Roman, California Coastal Commission, Long Beach
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