§ 23.07.170. Environmentally Sensitive Habitats.

The provisions of this section apply to development proposed within or adjacent to (within 100 feet of the boundary of) an Environmentally Sensitive Habitat as defined by Chapter 23.11 of this title.

a.

Application content. A land use permit application for a project on a site located within or adjacent to an Environmentally Sensitive Habitat shall also include a report by a biologist approved by the Environmental Coordinator that:

(1)

Evaluates the impact the development may have on the habitat, and whether the development will be consistent with the biological continuance of the habitat. For those environmentally sensitive habitat areas which are only seasonally occupied, or where the presence of the species can best be determined during a certain season (e.g., an anadromous fish species or annual wildflower species), the field investigation(s) must be conducted during the appropriate time to maximize detection of the subject species. The report shall identify possible impacts, their significance, measures to avoid possible impacts, mitigation measures required to reduce impacts to less than significant levels when impacts cannot be avoided, measures for the restoration of damaged habitats and long-term protection of the habitats, and a program for monitoring and evaluating the effectiveness of such measures.

(2)

Is complete, current, and meets established standards for report content and assessment methodology. Report standards shall be consistent with CEQA guidelines, and incorporate the recommendations of the California Coastal Commission, California Department of Fish and Game, U.S. Fish and Wildlife Service, Marine Mammals Commission, and National Marine Fisheries Service, as appropriate.

(3)

Evaluates development proposed adjacent to environmentally sensitive habitats to identify significant negative impacts from noise, sediment and other potential disturbances that may become evident during project review.

(4)

Identifies the biological constraints that need to be addressed in designing development that would fist avoid, then minimize impacts to ESHA. These identified constrains will be used by the County to evaluate, and require implementation of project design alternatives that result in impacts to ESHA being avoided and unavoidable impacts minimized. This shall also include assessment of impacts that may result from the application of fire safety requirements.

(5)

Verifies that applicable setbacks from the habitat area required by Sections 23.07.170 to 23.07.178 are adequate to protect the habitat or recommends greater, more appropriate setbacks.

(6)

Critically evaluate "after-the-fact" permit applications where un-permitted development has illegally encroached into setback areas before off-site mitigation is considered. Evaluate all options of restoring and enhancing the pre-existing on-site habitat values. Off-site mitigation consisting of replacing the area of disturbance with like habitat at a minimum of 3:1 ratio shall be an additional requirement to offset the temporary impacts of the violation and address the potential for restoration efforts to fail.

b.

Required findings: Approval of a land use permit for a project within or adjacent to an Environmentally Sensitive Habitat shall not occur unless the applicable review body first finds that:

(1)

There will be no significant negative impact on the identified sensitive habitat and the proposed use will be consistent with the biological continuance of the habitat.

(2)

The proposed use will not significantly disrupt the habitat.

c.

Land divisions: No division of a parcel containing an Environmentally Sensitive Habitat shall be permitted unless all proposed building sites are located entirely outside of the applicable minimum setback required by Sections 23.07.172 through 23.07.178. Such building sites shall be designated on the recorded subdivision map.

d.

Alternatives analysis required. Construction of new, improved, or expanded roads, bridges and other crossings will only be allowed within required setbacks after an alternatives analysis has been completed. The alternatives analysis shall examine at least two other feasible locations with the goal of locating the least environmentally damaging alternative. When the alternatives analysis concludes that a feasible and less environmentally damaging alternative does not exist, the bridge or road may be allowed in the proposed location when accompanied by all feasible mitigation measures to avoid and/or minimize adverse environmental effects. If however, the alternatives analysis concludes that a feasible and less-environmentally damaging alternative does exist, that alternative shall be used and any existing bridge or road within the setback shall be removed and the total area of disturbance restored to natural topography and vegetation.

e.

Development standards for environmentally sensitive habitats. All development and land divisions within or adjacent to an Environmentally Sensitive Habitat Area shall be designed and located in a manner which avoids any significant disruption or degradation of habitat values. This standard requires that any project which has the potential to cause significant adverse impacts to an ESHA be redesigned or relocated so as to avoid the impact, or reduce the impact to a less than significant level where complete avoidance is not possible.

(1)

Development within an ESHA. In those cases where development within the ESHA cannot be avoided, the development shall be modified as necessary so that it is the least environmentally damaging feasible alternative. Development shall be consistent with the biological continuance of the habitat. Circumstances in which a development project would be allowable within an ESHA include:

i.

Resource dependent uses. New development within the habitat shall be limited to those uses that are dependent upon the resource.

ii.

Coastal accessways. Public access easements and interpretive facilities such as nature trails which will improve public understanding of and support for protection of the resource.

iii.

Incidental public services and utilities in wetlands. Essential incidental public services and utilities pursuant to ESHA Policy 13 and CZLUO Section 23.07.172(e).

iv.

Habitat creation and enhancement. Where the project results in an unavoidable loss (i.e., temporary or permanent conversion) of habitat area, replacement habitat and/or habitat enhancements shall be provided and maintained by the project applicant. Plans for the creation of new habitat, or the enhancement of existing habitat, shall consider the recommendations of the California Coastal Commission, the California Department of Fish and Game and/or U.S. Fish and Wildlife Service. Generally, replacement habitat must be provided at recognized ratios to successfully reestablish the habitat at its previous size, or as is deemed appropriate in the particular biologic assessment(s) for the impacted site. Replacement and/or enhanced habitat, whenever feasible, shall be of the same type as is lost ("same-kind") and within the same biome ("same-system"), and shall be permanently protected by a deed restriction or conservation easement.

v.

Restoration of damaged habitats. Restoration or management measure required to protect the resource. Projects located within or adjacent to environmentally sensitive habitat areas that have been damaged shall be conditioned to require the restoration, monitoring, and long-term protection of such habitat areas through a restoration plan and an accompanying deed restriction or conservation easement. Where previously disturbed but restorable habitat for rare and sensitive plant and animal species exists on a site that is surrounded by other environmentally sensitive habitat areas, these areas shall be delineated and considered for restoration as recommended by a restoration plan.

(2)

Development in ESHA to avoid a takings. If development in an ESHA must be allowed to avoid an unconstitutional taking, then all of the following standards shall apply with respect to such development:

i.

Avoidance of takings. The amount and type of development allowed shall be the least necessary to avoid a takings.

ii.

Impacts avoided/minimized. All development in and impacts to ESHA shall be avoided to the maximum extent feasible. Any unavoidable impacts shall be limited to the maximum extent feasible.

iii.

Mitigation required. All adverse impacts to the ESHA shall be fully mitigated.

(3)

Steelhead stream protection: net loss stream diversions prohibited. Diversions of surface and subsurface water will not be allowed where a significant adverse impact on the steelhead run, either individually or cumulatively, would result.

Diversion dams, water supply wells which tap the subflow, and similar water supply facilities which could significantly harm the steelhead run in any of these streams shall not be allowed.

Exceptions may be considered only where the impact cannot be avoided, is fully mitigated and no significant disruption would result. Techniques for impact avoidance include:

i.

Limiting diversions. Limiting diversions to peak winter flows exceeding the amount needed to maintain the steelhead runs, with off-stream storage where year-round water supplies are desired.

ii.

Protecting water quality. Treating diverted water after use, and returning it to the watershed of origin in like quantities and qualities; and

iii.

Supplementing flows. Supplementing stream flows with water imported from sources that do not exacerbate impacts on steelhead or salmon runs elsewhere.

(4)

Other prohibited uses. Prohibited development activities include:

i.

Placement of barriers to fish. In-stream barriers to sensitive freshwater species migration, including types of dams not covered above, weirs, and similar obstacles which would substantially interfere with normal migration patterns, except where barriers cannot be avoided and impacts are mitigated to less than significant levels (e.g., with fish ladders or other effective bypass systems).

ii.

Destruction of rearing habitats. Development which would cause loss of spawning or rearing habitat through flooding, siltation or similar impacts.

iii.

Disturbance or removal of native riparian vegetation on the banks of streams. Locations constituting an exception to this requirement are:

a.

In-between stream banks when essential for flood control purposes and no less environmentally damaging alternative is available to protect existing structures;

b.

On roads, trails, or public utility crossings where vegetation removal cannot be avoided, and where there is no feasible alternative and no significant disruption would result; and

c.

For native habitat restoration and protection projects.

iv.

Interference with fish migration. Any other development activity that would raise overall stream temperatures to unfavorable levels, or that would interfere with normal fish migration and movement within the stream.

v.

Breaching. Breaching of the beach berm, where such berm creates a coastal lagoon that provides summer rearing habitat for juvenile steelhead and/or other sensitive aquatic species. Exceptions shall be authorized only where such breaching represents the least environmentally damaging feasible alternative for relieving a flood hazard, public health hazard, or water pollution problem. In the event that a breach is authorized, it shall be conducted subject to the following standards:

a.

Artificial breaching of a sand bar or beach berm containing a coastal lagoon is considered coastal development; therefore, a coastal development permit must be obtained prior to breaching activity.

b.

As appropriate, permits for creek mouth breaching must also be obtained prior to commencement of any work from California Department of Fish and Game, the U.S. Army Corps of Engineers, the Monterey Bay National Marine Sanctuary (if applicable), the Regional Water Quality Control Board, and all other concerned agencies prior to the breaching. In many cases, the required coastal development permit must be obtained from the California Coastal Commission instead of, or in addition to, the County, because the lagoon/creek mouth will be located entirely or partially within the State's retained jurisdiction.

c.

Because of the unique nature of individual creek mouth environments, breaching standards must be designed specifically for each location where breaching activity will occur.

d.

Development of a creek mouth breaching plan for each site shall include consideration of the following:

1.

Use of feasible available alternatives, to eliminate the practice of artificial breaching if possible.

2.

Thorough study of affected rare, threatened, or endangered species and habitat, in particular, steelhead trout and tidewater goby.

3.

Review of mitigation options as compensation for environmental damage caused by breaching.

4.

Public access impacts.

5.

Public health impacts.

6.

Public safety impacts.

7.

Review of historic and projected flooding of public and private properties, agricultural lands, and habitat.

8.

Monitoring of lagoon and stream water quality.

9.

Creation of a monitoring plan for each individual breaching incident, and a long-term monitoring plan to study lagoon health and the impacts of breaching on the lagoon.

(5)

Grading adjacent to Environmentally Sensitive Habitats shall conform to the provisions of Section 23.05.034c (Grading Standards).

(6)

The use of invasive plant species is prohibited.

[Amended 2004, Ord. 2999; Amended 2006, Ord. 3082; Amended 2006, Ord. 3082; Amended April 2006, Ord. 3082]