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Policy on Mitigation Guidelines Regarding Impacts to Rare, Threatened, and Endangered Plants

California Native Plant Society Rare Plant Scientific Advisory Committee (February 1991, revised April 1998) (PDF Version)

This document is intended to guide in the assessment and mitigation of impacts to rare and endangered plants. It supports the California Native Plant Society Policy Regarding Mitigation of Impacts to Rare and Endangered Plants (Appendix A). The goals of the policy are to prevent decline of rare plants and their habitats and to ensure that effective rare plant preservation measures are implemented.

In California the right to develop land is subject to regulation by public agencies that have discretionary control over project approval. The National Environmental Policy Act of 1969 (NEPA) and the California Environmental Quality Act of 1970 (CEQA) require project applicants to disclose, consider and avoid or reduce significant project impacts to rare or endangered species. Environmental documents required under those laws contain the project disclosures and evaluations and are available for public review.

Evaluation Guidelines

Before identifying mitigation options for a project, the vegetation types, rare plants and habitats, and specialized biotic resource areas must be identified and the project impacts described and assessed. The Society recommends following the Department of Fish and Game's Guidelines for Assessing Effects of Proposed Developments on Rare and Endangered Plants and Plant Communities (Appendix B). An important aspect of the evaluation is determining whether an impact is significant as defined by CEQA and NEPA. Under CEQA, for example, an significant impact is one which would produce a substantial, or potentially substantial, adverse change in the environment.

Mitigation Guidelines

The Society endorses the mitigation concepts in the California Environmental Quality Act, Statutes and Guidelines (1986) because they may be applied specifically to rare plants. The types of mitigation for environmental impacts that are listed in CEQA (Section 15370) are:(a) Avoiding the impact altogether by not taking a certain action.(b) Minimizing impacts by limiting the degree or magnitude of the action.(c) Rectifying the impact by repairing, rehabilitating or restoring the impacted environment.(d) Reducing or eliminating the impact over time by preservation and maintenance operations during the life of the project.(e) Compensating for the impact by replacing or providing substitute resources or environments.These mitigation measures can be applied to a variety of environmental impacts but are not always appropriate to mitigating rare plant impacts. Mitigation measures should be developed on a site-specific basis in consultation with appropriate resources agencies. Under existing laws, a project applicant or a local lead agency may have the responsibility of consulting with public regulatory agencies on matters relating to project impacts on rare species.For rare plants, effective mitigation options that can avoid or reduce impacts may be limited. The use of more than one measure may be necessary depending upon the type of project and the factors that make plant species rare (e.g., unusual soils, microclimates, or water regimes). Each project must be individually evaluated to determine which mitigation method or methods will avoid or reduce impacts defined by CEQA or NEPA as significant to a less than significant level. Because the life history and ecological information needed to judge whether mitigation measures are adequate is often lacking, additional biological research may be necessary prior to mitigation design and/or implementation in order to determine which measures will be most appropriate.

Of the five mitigation types in the California Environmental Quality Act, the California Native Plant Society fully supports those which avoid net reduction of population size or species viability. For most plant species this requires the protection of habitat essential to the survival of the species. In some instances, this also requires that impacts be fully avoided in order to prevent a significant impact (i.e., a net loss of plant numbers, habitat, or genetic variability essential to the future existence and recovery of the species). Alternatives such as site restoration and off-site introduction are generally unproven, and usually unsuccessful.

Avoidance:

Impacts to rare plants may be avoided by: (1) pre-project planning and design; (2) reconfiguring an existing project design; or (3) adopting the no-project alternative. Project planning and design measures to avoid impacts may include arrangement of facilities on-site to avoid sensitive features. Additional measures are almost always required to protect avoided sites from impacts associated with construction and operation of the project. Such protection can include, but is not limited to, fencing, open space or conservation easements, and transfer of development rights. See Appendix C for a brief discussion of conservation easements.Each of the other mitigation alternatives included in the CEQA guidelines involves the acceptance of a net loss and/or use of transplantation, artificial propagation, seed transfer, or habitat restoration. The Society believes that these methods do not fully mitigate for significant impacts to rare plants and their habitats for three reasons:

(1) These alternatives compromise and ultimately negate mitigation by allowing net losses of rare plant populations and habitat. Mitigation must, according to CEQA, fully offset or reduce significant impacts to a less than significant level.(2) Most rare plants are restricted to their known locations because they have specialized, poorly understood, habitat requirements. Creating the exact environmental conditions that these plants require may not be possible.

(3) The Society does not endorse alteration of naturally occurring plant communities through transplantation because the methodology for most rare plants is untested and therefore unreliable and because most past attempts have ultimately failed.

Although the Society does not endorse significant net losses of rare plant numbers or habitat, we recognize that where such losses are allowed or are deemed unavoidable, off-site restoration, compensation, transplantation or other salvage methods should be attempted to enhance degraded populations or provide for partial survival of the sacrificed population. Such measures also provide additional knowledge of the species' horticultural and ecological requirements. Such measures should never be performed so that an otherwise unaffected population is in any way jeopardized, for example by genetic contamination.

Mitigation alternatives other than avoidance are discussed below. These should be used alone or in combination to reduce impacts to less than significant levels. They should also be used in conjunction with monitoring and long-term management agreements.

Reducing Impacts:

The significance of impacts may be minimized by reducing the size of the project (i.e., partial avoidance) and by locating the project in the least environmentally sensitive area. Areas where impacts are avoided should be surrounded by buffer zones where impacts are absorbed, and set aside and permanently protected in conservation or open space easements. Efforts should be made to salvage portions of the population that will be lost.

Restoration:

Restoration can be used to mitigate impacts from projects approved prior to environmental regulations, or impacts allowed through a "statement of overriding considerations."

Depending upon the degree of impact, habitat restoration may be as simple as removing debris and controlling public access. In more complex situations, however, partial or total restoration of degraded habitat may require extensive revegetation, and soil protection and stabilization programs. Restoration must be tailored to the specific project site based on the habitat and species involved. General guidelines for restoration projects involving rare plants are discussed in Appendix D.

Reduction Over Time:

Impacts may be significantly reduced or eliminated by controlling public access and by fencing or staking the habitat area to prevent accidental intrusion into the site. Monitoring rare plants and habitats during all phases of a project will help ensure that construction and operation activities do not encroach on protected habitat.When project actions have ended, restraints may or may not be removed depending on the completed project's potential for long-term impacts on the sensitive area. In most instances, control of public access to sensitive habitat sites needs to be continued beyond the construction phase of an individual project, especially in moderate and high density development areas. Public education about the value of the protected resources should also be considered for these areas.

Attempts to reduce or eliminate impacts over the life of the project should be required for all projects if the potential exists for secondary impacts due to human access; mitigation agreements that require placement of a conservation or open space easement on the mitigation site should be considered to implement this measure.

Off-site Compensation:

Compensating for the impact by protecting substitute resources or environments has been used in some instances to mitigate unavoidable impacts. In most instances off-site compensation does not fully reduce impacts to an insignificant level because a net loss of individuals or habitat that supports a natural self-sustaining rare plant population results. In spite of this, off-site compensation is a useful tool under specific circumstances where other mitigation alternatives cannot be applied or do not fully mitigate significant impacts.Off-site compensation has been approached in several different ways, including: 1) permanent protection of an existing off-site native population; 2) permanent protection of an off-site introduced population; 3) a combination of 1) and 2); or 4) mitigation banking.Determining habitat value for off-site compensation is difficult. The size of the acquisition will vary depending upon the type, condition, extent and rarity of the habitat and species. In any case, the acquisition and permanent protection of an alternative parcel does not alter the fact that the loss of the initial site brings the rare habitat and species one step closer to ultimate extinction. Species preservation is greatly enhanced when plants are protected at a number of separate sites. Although the permanent protection of a vigorous, self-sustaining population of the species tends to reduce the endangerment potential of the species at that particular site, it does not necessarily fully compensate for the loss of the habitat known to support a viable population. To further reduce the endangerment potential for the species and habitat, the ratio of acquisition to loss must in most cases exceed 1:1 for any species. The ratio should be higher for rarer species, particularly for those that occupy irreplaceable habitats. In addition, enhancing off-site compensation areas (e.g., reducing grazing or OHV impacts) can help to more fully compensate for the net loss of plants at a project site.

If transfer of the threatened population is being attempted, an ecological study of the site, including an inventory of rare species, is needed to identify the feasibility of introduction. Genetic contamination can occur by mixing of populations of the rare plants and needs to be avoided, as does hybridization between the rare plant and close relatives that could occur at the introduction site. In no case are unthreatened populations to be jeopardized by the transfer of genetic material from the threatened site. If the compensation site is considered suitable, acquisition or other permanent protection efforts are required to ensure adequate long-term protection, and therefore to mitigate for a net loss of rare plants or habitat. A propagation program should be developed for the salvage and transfer of rare plant populations from the initial parcel before initiating any activities. Permits may be required from California Department of Fish and Game (DFG) or the U.S. Fish and Wildlife Service. Propagation methods for the salvaged population must be developed on a case-specific basis. The propagation program schedule must provide adequate lead time to plan and carry out transfer at the correct time of the year. In order to serve as mitigation, the transfer must be successfully completed before the project's construction activities eliminate plants or habitats. Maintenance and monitoring programs which include the collection of data to document degree of success should also be developed for the compensation site to ensure the transplanted population is self-sufficient and thereby demonstrate success.

Mitigation Implementation

The mitigation design, implementation techniques and reporting procedures must be clearly documented. Responsibilities of the landowner/applicant, contractors, and agencies, and criteria that define successful mitigation, should be placed in writing to prevent later confusion or disagreement. The DFG Plant Conservation Program has prepared a mitigation plan annotated outline that includes the basic information needed to develop a mitigation plan for State-listed plant species that would be acceptable to the DFG. This document discusses important considerations in designing appropriate mitigation and monitoring plans and establishing appropriate performance criteria, and should be consulted when developing mitigation for impacts to any rare plant species.Mitigation agreements entered into as a condition of a discretionary permit must contain assurances of implementation, monitoring and maintenance. Permits for development generally require a mitigation plan prior to approval. Project construction is sometimes completed before mitigation is fully implemented, especially where restoration or revegetation is involved. In these and related instances mitigation commitments should be guaranteed by a negotiable performance security. The amount of the negotiable security should be large enough to complete the mitigation and to purchase other rare plant habitat in the event the applicant fails to successfully complete the work in accordance with the approved mitigation agreement.

Clear criteria should be included in the mitigation agreement to define the conditions under which the mitigation measures are to be considered complete or successful, so that the performance security may be returned. Any mitigation effort requiring manipulation of plants or of habitats should be monitored for success or failure for a minimum of five years before relinquishing the performance security. The duration of the evaluation period must be based on the biological constraints of the species involved.

Maintenance and Monitoring Implementation

Maintenance and monitoring of rare plant populations and habitats are essential even where these are "protected" by mitigation measures. Monitoring enables project applicants and regulatory agencies to document compliance with mitigation agreements. Monitoring also enables scientists to gather valuable knowledge on the effectiveness of rare plant mitigation methods. The financial responsibility for monitoring and maintenance of rare plant populations and habitat is typically that of the project applicant. In all cases, monitoring should be conducted by an experienced botanist. Maintenance responsibilities must be clearly stated in contractual agreements to eliminate any confusion during future maintenance and monitoring.Maintenance must consider the ecological needs of the species and habitat and the types of mitigation used. Where undisturbed habitat is set aside, maintenance may consist of little more than controlling public access, maintaining fences, or periodic weed removal. Restoration and revegetation programs may require more complex maintenance programs. For example, invasive non-native plants may require specialized control measures to keep them from spreading; herbivores may also need to be controlled to protect the native vegetation.Monitoring programs must be developed to meet the needs of the specific mitigation program. For example, it may be necessary to monitor the progress of construction activities, if these activities have the potential to damage rare plant habitat. Monitoring of restoration and revegetation projects is essential to document success or failure and identify areas where additional work is needed. Monitoring undisturbed sites that have been set aside and are not likely to suffer direct or cumulative impacts may require only periodic visits to determine if easement violations have occurred. Requirements to correct violations should be described in the conservation easement or mitigation agreement.In the past, mitigation for many approved projects was not properly implemented and agencies failed to enforce compliance by project developers. To rectify this, legislation passed in 1989 (AB 3180, Cortese) amended CEQA by adding section 21081.6 to allow California agencies to require monitoring of mitigation measures that were defined for a given project. The features to be monitored must be outlined in a formal monitoring plan which must be sufficient to identify failures in mitigation throughout the life of the project, not just during the construction phase. Agencies can enforce compliance with monitoring plans through several means, including specifying penalties for failure to meet monitoring obligations, through the use of existing police power such as fines or restraining orders, and/or by requiring a performance security of the project applicant.

Monitoring a conservation easement is the responsibility of the easement holder, whether this is a nonprofit organization or a public agency. The easement holder is also responsible for seeking redress for violations of the conservation easement contract.

Conclusion

The Society supports project alternatives that completely avoid significant project impacts to rare and endangered plant species and their habitats. In cases where other mitigation alternatives are approved, mitigation plans should be designed based on the specific requirements of the species and habitat involved. Although the current limited understanding of the ecological requirements for most rare species makes this task difficult, the use of preliminary ecological studies in mitigation planning will help to develop successful mitigation programs. Emphasis must be placed on conserving not only the rare plant but its habitat. The increased awareness of the need for solutions to problems of human impact on the environment and endangered species is encouraging. This awareness and concern has led to the participation of many agencies, conservation organizations, and concerned individuals in an effort to develop the criteria needed for rare plant protection. The California Native Plant Society has dedicated itself to helping realize this goal, and is always available to assist private individuals, local governments, public agencies and others in designing truly effective mitigation measures. Some of the references cited in the bibliography contain information relating to studies of specific rare plants and mitigation implementations for specific development projects.

Acknowledgements

The CNPS Mitigation Policy and Guidelines were produced through the dedicated effort of many individuals. Special thanks go to Betty Guggolz for her lead role in the production of this document and her patient endurance of innumerable modifications to the text. Others who contributed valuable advice, criticism and support were: Ken Berg, Roxanne Bittman, Fredrica Bowcutt, Susan Cochrane, Charlice Danielsen, Phyllis Faber, Jack Guggolz, James Jokerst, Tim Messick, Mary Meyer, James Nelson, Thomas Oberbauer, David Schonum, Teresa Sholars, Mark Skinner, James Payne Smith, Joan Vilms, Laurie Wickenheiser, and Vernal Yadon.

Bibliography

Barrett, Thomas. S., and Putnam Livermore, for the Trust For Public Land. The Conservation Easement in California, Island Press, Covelo, California, 1983.Christian, John. U.S. Fish and Wildlife Service Mitigation Policy, Federal Register, Vol. 46 No. 15, Department of the Interior, Washington D. C., 1981.Elias, Thomas S. (ed.). Conservation and Management of Rare and Endangered Plants, California Native Plant Society, 1987.Fahselt, D. The Dangers of Transplantation as a Conservation Technique. Natural Areas Journal 8:238-243, 1988.Hall, Lauren A. Transplantation of Sensitive Plants as Mitigation for Environmental Impacts. Pages 413-420 in Elias, Thomas S. (ed.) "Conservation and Management of Rare and Endangered Plants", California Native Plant Society, 1987.Hoose, Philip M. Building An Ark, Tools for Preservation of Natural Diversity through Land Protection, Island Press, 1981.Howald, Ann M., and Laurie P. Wickenheiser. Mitigation Plan Annotated Outline for Endangered Plants of California. California Department of Fish and Game, Endangered Plant Program, 1990.Nachlinger, Jan, Gankin, Roman and Robert Powell (eds.). C.N.P.S. Working Conference, Conservation, Rare Plants and Legislation, February 5-7, 1982, Yosemite Institute, Marin Headlands, California Native Plant Society, July 1982.Remy, Michael H., Thomas, Tina A., Duggan, Sharon E., and James G. Moose. Guide to the California Environmental Quality Act, Solano Press Books, 1990.Rieger, John P. and Bobbie A. Steele (eds.). Proceedings of the Native Plant Revegetation Symposium, Nov.15, 1984, San Diego, California, California Native Plant Society, 1985.

Smith, J.P., Jr. and Ken Berg (eds.). Inventory of Rare and Endangered Vascular Plants of California, 4th ed. Special Publication No.1, California Native Plant Society, Sacramento, California, 1988.

Relevant Legislation

California Endangered Species Act. Fish and Game Code, Sections 2050-2098.

Native Plant Protection Act. Fish and Game Code, Sections 1900-1913.State of California, The California Environmental Quality Act, Statutes and Guidelines. Office of Planning and Research, 1986.State of California. Tracking CEQA Mitigation Measures Under AB 3180, Office Of Planning and Research, 1989.The Federal Endangered Species Act of 1973. (Public Law 93-295).

The National Environmental Policy Act of l969. (42 USC 4321-4347).

APPENDIX A - Policy Regarding Mitigation of Impacts to Rare and Endangered Plants, CNPS, June 1987

APPENDIX B - Guidelines for Assessing Effects of Proposed Developments on Rare and Endangered Plant Communities
THE RESOURCES AGENCY, Department of Fish and Game (December 9, 1983, revised May 8, 2000)
NOTE - On June 2, 2001, the CNPS Board of Directors adopted a more rigorous set of survey guidelines entitled CNPS Botanical Survey Guidelines (December 9, 1983, revised June 2, 2001)

APPENDIX C - Conservation Easements

Open Space or Conservation Easements have been used in a number of jurisdictions throughout California. In open space or conservation easements the landowner transfers the rights to develop a parcel to a conservation organization or public agency. The legal basis for this action is found in Government Code Section 51050 et seq., particularly Section 51083.5 which describes the granting of easements to nonprofit organizations. Easements granted to an impartial third party, interested organization, or resource agency are the only secure types. Those granted to a local public jurisdiction can be eliminated or modified with a majority vote.

Determining the appropriate size of an easement is difficult. It must be large enough to support, in perpetuity, a biologically secure, reproducing population with an adequate buffer zone. The proposed land use surrounding the easement and current and future land uses of the conservation or open space easement area must also be taken into consideration. A land use or management plan that accounts for the type of rare plant habitat and the biology of the resident species needs to be developed for easement areas. The design of the protection area boundaries and management plan must be scientifically based, utilizing baseline studies and species biology information.

Conservation and open space easement contracts should include a legal description of the easement parcel, the purpose of the easement and describe the specific resources or conditions being protected by the easement. The contract should also include the rights of the grantee, the grantors rights and uses, restrictions of undesirable activities, and a general restriction of all uses inconsistent with the purposes of the easement. Language should be included that states that the conditions of the easement contract are binding not only on the grantor, but also on his heirs, assigns, and all other successors and interests so that the term of the easement runs with the land in perpetuity.

Conservation easement contracts should also include: (1) specific restrictions to protect the site from land use change, introduction of nonnative plant species and public access; and (2) the right of the grantee to enforce compliance with the terms of the easement and to require restoration of the habitat at the grantor's expense should damage to the habitat result from violation of the agreement by the grantor.

Maintenance and monitoring agreements and guideline documents for the conservation easement should be incorporated into the easement contract.

APPENDIX D - Brief Guidelines for Restoration Projects

General guidelines for restoration projects are as follows:

1. Prior to the development of a restoration program, the goals of the completed project must be established and a course of action developed to achieve that goal.

2. Pre-impact site conditions should be determined. Clues to this may be found in remnants of the existing habitat, in herbarium research, and from botanists who have collected in the area in the past. Local historical files or societies may be a source of information if the site is near an urban area.

3. Other site factors which may require study are land contours, soil types, erosion control, topsoil protection, and pre-impact hydrologic patterns.

4. An ecological study of the species being considered for reintroduction is necessary, including their total distribution, other habitat sites, associated species and pollinators.

5. Revegetation methodology research may include propagation techniques, material sources, propagule collection and preparation, planting densities, seedling protection, weed and invasive exotics control, site protection, public access and many other factors. The present knowledge of propagation requirements for rare plants is so limited that all efforts to propagate and reintroduce them in the wild should be carried out under the direct supervision of a specialist well versed in the cultural requirements of the genus.

6. A maintenance and monitoring program should also be included in the development of restoration/revegetation plans, and should utilize consistently documented data to further augment the existing knowledge of the species and to develop criteria for other revegetation projects.

APPENDIX E - Definitions

The following definitions are used in this document:

Maintenance: the process of ensuring that rare plants and their habitats remain viable and in good condition.

Mitigation: actions taken to avoid or reduce significant adverse impacts. Impacts are less than significant if no net loss of population size or habitat quality results.

Mitigation banking: A large preserve or open space which individual developers buy into at a predetermined compensation ratio to satisfy their mitigation debt. Mitigation banking focuses mitigation efforts into significant amounts of habitat rather than permitting establishment of many smaller and less significant or less defensible preserves or open space areas.

Monitoring: periodic assessment of the status of a plant population or habitat to determine its condition and reveal trends in vigor and viability; should be conducted in a scientific and standardized fashion.

Off-site Compensation: preservation in perpetuity of alternate sites containing similar habitat types and species to offset or "compensate" for unavoidable losses. The ratio of acquisition to loss should be greater than one to one for any species. In lieu of this, an equitable sum of money may be paid for the purchase of an alternate site.

Preservation: the maintenance and protection of rare plants and habitats at levels that existed prior to the commencement of a project.

Rare Species: for the purpose of this policy, and to avoid undue repetition, the word "rare" is used to include "rare", "threatened", and "endangered" plant species as defined in Section 3(4)(15) of The Federal Endangered Species Act of 1973, and The California Environmental Quality Act Guidelines, Section 15380 (1986). The latter section is reproduced below:

(b) A species of plant is:

    (1) "Endangered" when its survival and reproduction in the wild are in immediate jeopardy from one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, disease, or other factors; or

    (2) "Rare" when either:

        (A) Although not presently threatened with extinction, the species is existing in such small numbers throughout all or a significant portion of its range that it may become endangered if its environment worsens; or

        (B) The species is likely to become endangered within the foreseeable future throughout all or a significant portion of its range and may be considered "threatened" as that term is used in the Federal Endangered Species Act.

(c) A species of plant shall be presumed to be rare or endangered if it is listed in:

    (1) Sections 670.2 or 670.5, Title 14, California Administrative Code; or

    (2) Title 50, Code of Federal Regulations, Section 17.11 or 17.12 pursuant to the Federal Endangered Species Act as threatened or endangered; or

(d) A species not included in any listing identified in subsection (c) shall nevertheless be considered to be rare or endangered if the species can be shown to meet the criteria in subsection (b).

Division 2, Chapter 1.5 of the California Fish and Game Code (California Endangered Species Act Section 2067) defines a "threatened" species as a native species or subspecies of a plant that, although not presently threatened with extinction, is likely to become an endangered species in the foreseeable future in the absence of special protection and management efforts required in this chapter.

Transfer of Development Rights (TDR): Under this process, an applicant may gain density bonuses in designated development areas if rare plant populations and habitat are left in permanent open space. This alternative also requires an organized plan by a local agency identifying those areas to be left undisturbed and those that may be used by the applicant for density increases in return for protecting the areas to be left undisturbed. Protection in perpetuity is a necessary requirement of TDR proposals that are implemented to protect rare plant populations. TDR is being used increasingly as a mitigation tool for on-site rare plant protection.

Unavoidable significant impacts: impacts resulting from a "statement of overriding considerations" where the public benefits of a project have been determined to outweigh the significance of the environmental impact, or where an emergency situation or natural disaster may destroy, or has destroyed rare plant habitat and species.

APPENDIX F - CNPS Rare Plant Lists

 

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