HomeMy WebLinkAbout0.0d_Public Comments4/6/12
To Chris Medak of USFWS:
Introduction
Correspondence
Item No. O.Od
Public Comments
June 7, 2012
Under the guise of "fuel modification and weed abatement" and "routine
maintenance," excessive, unnecessary and unpermitted mowing is being performed on
Banning Ranch, a USFWS- declared area of critical habitat for the California Gnatcatcher,
for the purpose of preventing establishment of California Gnatcatcher nesting areas in
the development footprint of the large residential project proposed by Newport
Banning Ranch LLC (NBR).
The objective of the Endangered Species Act (16 USCS 1531 -1543) is to enable a listed
species like the California Gnatcatcher not merely to survive, but to recover from their
endangered or threatened status. Gifford Pinchot Task Force v. US Fish and Wildlife
Service (9th Cir. 2004) 378 F.3d 1059; Sierra Club v. US Fish and Wildlife Service (5th Cir.
2001) 245 F. 3d 434; 50 CFR 402.02). Also, the Endangered Species Act requires that the
USFWS cooperate with state agencies such as the California Coastal Commission in
connection with the preservation of endangered species such as the California
Gnatcatcher [16 USCS 1535(a)].
The Carlsbad office of the USFWS should be using its powers under the Endangered
Species Act to stop this excessive, unnecessary and unpermitted mowing.
The Unpermitted Mowing is Excessive and Unnecessary
While it is recognized that some vegetation clearing /mowing is necessary on Banning
Ranch for fire safety purposes, such mowing /clearing should be consistent with local
municipal fire codes, such as those for Orange County and for the City of Newport
Beach. Even the draft EIR for the proposed Banning Ranch development acknowledges
the width of a reasonable "fire break."
':..a 100-foot-wide fuel modification area is provided between the
oilfield and adjacent off -site development to minimize the risk of a wildfire spreading
to the adjacent developed areas."
In fact, California State Code mandates that 100 feet be the maximum width:
"SEC. 4. Section 51182 of the Government Code is amended to read:
51181. (a) A person who owns, leases, controls, operates, or maintains an occupied
dwelling or occupied structure in, upon, or adjoining any mountainous area, forest -
covered land, brush - covered land, grass- covered land, or any land that is covered with
flammable material, which area or land is within a very high fire hazard severity zone
designated by the local agency pursuant to Section 51179, shall at all times do all of
the following: (1) Maintain defensible space no greater than 100 feet from each side
of the structure (emphasis added), but not beyond the property line unless allowed by
state law, local ordinance, or regulation and as provided in paragraph....."
However, on Banning Ranch this excessive, unnecessary and unpermitted mowing is
occurring over 1200 feet away from adjacent off -site development.
And while it is recognized that vegetation clearing is necessary to monitor, access and
service the active wells on Banning Ranch, even the draft EIR for the proposed Banning
Ranch development acknowledges such clearing should be limited to routine
maintenance....
"...the immediate area surrounding these facilities are mowed or vegetation is hand -
trimmed to create afire break and provide visibility for oilfield
personnel to monitor these facilities for potential spills or other equipment problem."
Again, the excessive, unnecessary and unpermitted mowing on Banning Ranch is
occurring over 1000 feet from active wells.
A quick comparison with other relevant oil and gas fields in the Southern California area
demonstrates that the mowing on Banning Ranch is indeed excessive and unnecessary.
NBR owns the surface development rights on Banning Ranch. AERA Energy LLC is one of
the major partners of NBR. AERA Energy LLC operates numerous oil and gas fields in
Southern California. One such field, the Ventura Oil Field, is located just north of
Highway 101 in Ventura. Excessive, unnecessary and unpermitted mowing as seen on
Banning Ranch is not evident at the Ventura Oil Field.
An aerial photo of the Ventura Oil Field demonstrating the limited clearing
around wells, along with intactness of the vegetation between the wells
An oil field in Los Angeles County known as Montebello Hills is of roughly similar size as
Banning Ranch. Like Banning Ranch, Montebello Hills is USFWS - declared critical habitat
for the California Gnatcatcher, and like Banning Ranch, there is a planned residential
development proposed for Montebello Hills. However, the clearing around the wells on
Montebello Hills, like the Ventura Oil Field, is limited to the immediate area around the
wells.
Aerial photo of Montebello Hills demonstrating the limited clearing around wells,
along with intactness of the vegetation between the wells
It should also be noted that while being of roughly similar size, Montebello Hills
supports a California Gnatcatcher population nearly four times as large as Banning
Ranch, presumably because the vegetation is not routinely mowed between the wells
and sage scrub has become more established.
Another oil field owned by AERA Energy LLC and planned for development is located
near Brea.
Oilfield owned by AERA Energy LLC (top of photo). Note the limited clearing around wells,
along with intactness of the vegetation between the wells
Active oil well near Brea demonstrating the limited clearing around well, along with
intactness of the vegetation surrounding the well.
On Banning Ranch, excessive, unnecessary and unpermitted mowing occurs around
wells that are abandoned, and also in areas where there are no wells. The majority of
the oil wells on Banning Ranch are abandoned, and there is every indication that they
will never become active again. The City of Newport Beach's priority for Banning Ranch,
as stated in the General Plan, is the preservation of the entire Banning Ranch as open
space:
"Prioritize the acquisition of Banning Ranch as an open space amenity for the
community and region, consolidating oil operations," (emphasis added)
In addition, NBR's proposed development plan envisions the phasing out of the vast
majority of the existing wells, including all wells on the mesa.
Indeed, the City of Newport Beach has amended section 1401 of the City's Charter so
that all oil and gas operations on Banning Ranch, within 10 years of annexation, will be
limited to two relatively small platforms comprising about 20 acres.
To conclude, the abandoned wells on Banning Ranch will not become active again.
The vegetation around these idled, abandoned and plugged wells on Banning Ranch
should be allowed to grow, as suggested by the California Code of Regulations:
"1776. Well Site and Lease Restoration.
(a) In conjunction with well plugging and abandonment operations, any auxiliary
holes, such as rat holes, shall be filled with earth and compacted properly; all
construction materials, cellars, production pads, and piers shall be removed and the
resulting excavations filled with earth and compacted properly to prevent settling;
well locations shall be graded and cleared of equipment, trash, or other waste
materials, and returned to as near a natural state as practicable" (Emphasis added)
Aerial photo showing the excessive unpermitted mowing occurring on the Banning Ranch mesa.
Note: The wells in this photo are abandoned, yet wide areas are mowed around them.
The Excessive and Unnecessary Mowing is not Permitted
As the entire Banning Ranch is within the Coastal Zone, all development on Banning
Ranch is subject to the California Coastal Act. The California Coastal Act is especially
relevant to the mowing on Banning Ranch in two areas: 1) authorization of
development (mowing) and 2) protection afforded to endangered species.
On October 30, 1973, the Coastal Zone Conservation Commission (a precursor to the
Coastal Commission) issued: Resolution of Exemption No. E- 7 -27 -73 -144 which allowed
for the operation of a limited number of wells on Banning Ranch. A review of the
conditions of the exemption reveals no specific mention of mowing. The general rule is
the rights that vest through reliance on a government permit are only those rights
specifically granted by the permit itself (Briarwood Properties v. City of Los Angeles
(1985) 171 Cal. App. 3d 1020).
The Coastal Act recognizes, and offers its highest protections to, Environmentally
Sensitive Habitat Areas (ESHAs),
"30240. (a) Environmentally sensitive habitat areas shall be
protected against any significant disruption of habitat values, and
only uses dependent on those resources shall be allowed within those
areas."
Coastal Sage Scrub (CSS), of which Encelia is a dominant component, is present on the
Banning Ranch mesa, and nascent and early Encelia growth is common in the areas of
mowing. Banning Ranch is considered within the sphere of influence of the City of
Newport Beach. While the City of Newport Beach does not have a certified Local
Coastal Program, the City of Newport Beach does have a certified Coastal Land Use Plan
(CLUP), which provides guidance for development on Banning Ranch. Under the City of
Newport Beach's CLUP:
':..where CSS occurs adjacent to coastal salt marsh or other wetlands, or where it is
documented to support or known to have the potential to support rare species such as
the coastal California anatcatcher (emphasis added), it meets the definition of ESHA
because of its especially valuable role in the ecosystem."
Photo of nascent and early Encelio scrub on Banning Ranch mesa before mowing
Photo of same area of Banning Ranch mesa after mowing
To summarize, the excessive, unnecessary and mowing is not permitted, and the areas
of the excessive, unnecessary and unpermitted mowing, especially where they contain
Encelia, should be considered Environmentally Sensitive Habitat Areas.
The Excessive, Unnecessary and Unpermitted mowing is not for
fire safety, but rather designed to prevent establishment of
Coastal Sage Scrub (CSS) and to prevent Gnatcatcher nesting.
As described above, much of the excessive, unnecessary and unpermitted mowing is
occurring on areas of nascent and early Encelia growth, a predominant component of
CSS. The City of Newport Beach Urban Wildland Interface Area Standard for Hazard
Reduction Fire Resistive Plant List contains Encelia californica. Furthermore, section
4903.2 of the City of Newport Beach fire code says that fire resistant plants can remain
even within 100 feet of structures, so it would seem reasonable that such plants can
remain 1000 feet from such structures.
The vegetation map included in the draft EIR has many areas of Encelia listed as non-
native grasslands, ruderal, ornamental, or disturbed. There are at least 24 separate
areas that were mapped as either Encelia or CSS in the vegetation map prepared by Jan
Vandersloot that are listed as non - native grasslands, ruderal, ornamental, or disturbed in
the draft EIR Vegetation Map.
The draft EIR freely admits that,
"... there are pockets of native species that were not mapped because they were
mowed to a height of less than six inches and could not be delineated."
This is a self - fulfilling prophecy. The mowing is described in the draft EIR as occurring in
"open grass and weedy areas" (emphasis added) yet it is the excessive, unnecessary
and unpermitted mowing itself that reduces the native vegetation to such a low height
that it is not included in vegetation mapping and the area ends up mapped as non-
native grasslands, ruderal, ornamental, or disturbed.
Furthermore, it is obvious that invasive and ornamental plants that do not provide
nesting habitat for the California Gnatcatcher, such as iceplant, are conspicuously spared
the excessive unnecessary unpermitted mower's blade.
Area of mowing in northeast corner of Banning Ranch mesa showing avoidance of iceplant.
This excessive, unnecessary and unpermitted mowing represents destruction, or
adverse modification of critical habitat as defined in the Code Federal Regulations, Title
50, 402.02:
"Destruction or adverse modification means a direct or indirect alteration that
appreciably diminishes the value of critical habitat for both the survival and recovery
of a listed species. Such alterations include, but are not limited to, alterations
adversely modifying any of those physical or biological features that were the basis for
determining the habitat to be critical."
Though a decision by the 9th Circuit has resulted in the USFWS relying on language
other than the above definition (Gifford Pinchot Task Force v. U.S. Fish and Wildlife
Service, 378 F.3d 1059 (9th Cir. 2004)), it remains the goal of the USFWS to recognize
and stop activities that hinder the recovery of a listed species.
To conclude, much of the excessive, unnecessary and unpermitted mowing is preventing
establishment of Coastal Sage Scrub and impairing the recovery of the California
Gnatcatcher.
Coordination with the California Coastal Commission and
California Department of Fish and Game is strongly
recommended.
The Endangered Species Act requires that the USFWS cooperate with state agencies
such as the California Coastal Commission in connection with the preservation of
endangered species such as the gnatcatcher [16 USCS 1535(a)]. As Banning Ranch is
entirely within the Coastal Zone, the California Coastal Commission will be intimately
involved with any development plans for Banning Ranch, including mowing. Indeed, a
review of comments made by the California Coastal Commission staff in the Sunset
Ridge Park staff report made it clear that areas of Encelia mowing, that would otherwise
support nesting of the California Gnatcatcher should they be left undisturbed, would be
considered ESHA if the mowing were unpermitted or if vested rights could not be
established. Obviously the declaration of ESHA would preclude any future
development.
In addition to the Endangered Species Act, the Migratory Bird Act is applicable as the
excessive, unnecessary and unpermitted mowing occurs in areas used by wintering
Burrowing Owls on the Banning Ranch mesa. Studies to determine the effects of the
excessive, unnecessary and unpermitted mowing on the wintering Burrowing Owls are
indicated.
The same general type of scrub habitat on the Banning Ranch mesa utilized by the
California Gnatcatcher is also utilized by the Cactus Wren, a California Species of Special
Concern. The population of Cactus Wrens in coastal Orange County, including the
Banning Ranch mesa, has seen sharp decreases in recent years. The reason for this is
not known, but the preservation of, and further establishment of nesting areas for the
Cactus Wren on Banning Ranch should be a goal of the California Department of Fish
and Game.
Area of cactus scrub on Banning Ranch mesa before mowing
Same area of cactus scrub on Banning Ranch mesa after mowing
Conclusion
Under the guise of "fuel modification and weed abatement" and "routine maintenance"
excessive, unnecessary and unpermitted mowing is being performed on Banning Ranch,
a USFWS- declared area of critical habitat for the California Gnatcatcher, for the purpose
of preventing establishment of California Gnatcatcher nesting areas in the development
footprint of the large residential project proposed by Newport Banning Ranch LLC.
The Carlsbad office of the USFWS, in coordination with the California Department of Fish
and Game and the California Coastal Commission, should be using its powers under the
Endangered Species Act and other applicable statutes to stop this excessive,
unnecessary and unpermitted mowing.
Terry Welsh
Banning Ranch Conservancy
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11 ... where CSS occurs adjacent to
coastal salt marsh or other
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documented to support or known
to have the potential to support
rare species such as the coastal
California pnatcatcher (emphasis
added), it meets the definition of
ESHA because of its especially
valuable role in the ecosystem."