EXHIBIT 99.3
IMPLEMENTATION AGREEMENT
WITH REGARD TO
HABITAT CONSERVATION PLAN
FOR THE PROPERTIES OF
THE PACIFIC LUMBER COMPANY,
SCOTIA PACIFIC COMPANY, LLC,
AND SALMON CREEK CORPORATION
By And Among
THE UNITED STATES FISH AND WILDLIFE SERVICE
THE NATIONAL MARINE FISHERIES SERVICE
THE CALIFORNIA DEPARTMENT OF FISH AND GAME
THE CALIFORNIA DEPARTMENT OF FORESTRY
AND FIRE PROTECTION
and
THE PACIFIC LUMBER COMPANY, SCOTIA PACIFIC COMPANY, LLC, AND
SALMON CREEK CORPORATION
February, 1999
CONTENTS
RECITALS AND PURPOSES S-6
AGREEMENT S-8
1. DEFINITIONS S-8
2. FINDINGS AND OBLIGATIONS OF THE AGENCIES S-12
2.1 USFWS S-12
2.1.1 USFWS Findings S-12
2.1.2 USFWS Obligations S-12
2.2 NMFS S-12
2.2.1 NMFS Findings S-12
2.2.2 NMFS Obligations S-13
2.3. CDFG S-13
2.3.1. CDFG Findings S-13
2.3.2 CDFG Obligations S-14
2.4 CDF Obligations S-14
3. PALCO RIGHTS AND OBLIGATIONS S-14
3.1. Obligations of PALCO S-14
3.1.1 Marbled Murrelet Conservation Areas (MMCAs) S-14
3.1.2 Grizzley Creek Complex S-16
3.1.3 Implementation of Operating Conservation Program S-18
3.1.3.1 Watershed Analysis S-15
3.1.3.2 Aquatics Conservation Plan Adaptive Management S-17
3.1.4 Review of Timber Harvest Plans S-20
3.1.5 No Increase in Take S-20
3.2. Covered Activities S-20
3.3 Funding S-21
3.4. Monitoring and Reporting S-22
3.4.1. Monitoring S-22
3.4.2. Annual Reports S-22
3.4.3 Other Information S-23
3.4.4 Agency Monitoring S-23
3.5 Phasing Rights S-24
4. INCORPORATION OF THE HCP S-24
5. LAND TRANSACTIONS S-24
5.1. Acquisition of Land by PALCO Generally S-24
5.2. Effective Date for Covered Lands Acquired After the
Effective Date of This Agreement S-25
5.3.3 Transfer of Elk River Property S-28
5.3.4 Disposition of Covered Lands Other Than in MMCAs S-26
5.3.4.1 Land Sold With Restrictions S-26
5.3.4.2 Land Sold Without Restriction S-27
5.4. Disposition of Covered Land Through Permit Amendment S-28
5.5. Disposition of Land in MMCAs S-29
6. ASSURANCES S-29
6.1. Federal Assurances S-29
6.1.1. Covered Species Listed After the Effective Date S-29
6.1.2. Migratory Bird Treaty Act, Bald and Gold Eagle
Protection Act S-29
6.1.3. Further Permits S-29
6.1.4. Critical Habitat S-30
6.1.5. Future Listing of Species Other Than Covered
Species S-30
6.1.6. Determination of Changed Circumstances and
Unforeseen Circumstances S-30
6.2. State Assurances S-33
6.2.1. Covered Species Listed After the Effective Date S-33
6.2.2. Future Regulation of Species Other Than Covered
Species S-33
6.2.3 Changed Circumstances and Unforeseen Circumstances S-34
6.2.4. Fully Protected Species Statutes S-36
6.3 Joint Assurances S-36
6.3.1. Compliance With Applicable Laws S-36
6.4. PALCO Assurances S-37
6.4.1. Control and Ownership of Subsidiary PALCO Entities S-37
7. HCP/PERMIT MODIFICATIONS AND AMENDMENTS S-38
7.1. Minor Modification of HCP and/or This Agreement S-38
7.1.1. Processing Minor Modifications S-38
7.1.2. Scope of Minor Modifications S-38
7.2. Permit Amendment S-39
7.2.1. General Federal Permit Amendment Process S-39
7.2.2. General State Permit/Streambed Alteration Agreement
Amendment Process S-39
7.2.3. Amendment of the Permit to Allow Covered Activities
Within MMCAs S-39
7.2.4 Compliance with AB 1986 S-39
8. ORIGINAL TERM: SUSPENSION AND/OR REVOCATION;
RELINQUISHMENT; EXTENSION; FULL MITIGATION
OBLIGATION S-39
8.1. Original Term S-39
8.2. Federal Permit Suspension and Revocation S-40
8.3. State Permit Suspension and Revocation S-40
8.3.1 Suspension S-41
8.3.2 Revocation S-41
8.3.3 Mitigation Obligations S-42
8.4. Permit Relinquishment by PALCO S-42
8.5. Full Mitigation Upon Relinquishment or Revocation S-42
8.5.1. Obligation S-42
8.5.2. Determination of Full Mitigation S-42
8.5.3. Conveyance of Interest in Land Until Full
Mitigation Reached S-43
8.5.4. Termination of HCP Obligations S-44
8.6. Non-Substantive Breaches; Notice; Waiver S-44
9. REMEDIES, ENFORCEMENT AND DISPUTE RESOLUTION S-44
9.1. Remedies S-44
9.2. Dispute Resolution S-45
9.2.1 Meet and Confer S-46
9.2.2 Non-Binding Dispute Resolution S-46
10. MISCELLANEOUS S-47
10.1. Notices S-47
10.2 No Partnership S-49
10.3 References to Regulations S-49
10.4 Entire Agreement S-49
10.5 Severability S-50
10.6 Governing Law S-50
10.7 Elected Officials Not to Benefit S-60
10.8 Availability of Federal Funds S-50
10.9 Availability of State Funds S-51
10.10 Relationship to FESA, CESA and Other Authorities S-51
10.11 Benefit of Agreement No Third-Party Beneficiaries S-51
10.12 Counterparts S-51
10.13 Further Actions and Cooperation S-51
10.14 Technical Assistance by USFWS S-51
10.15 Amendment of the Agreement S-62
10.16 Applicable Laws S-52
10.17 Successors and Assigns; Permit Assignment S-52
10.18 Due Authorization S-52
IMPLEMENTATION AGREEMENT
This agreement regarding the implementation of the PALCO habitat conservation
plan ("Agreement") is entered into as of the Effective Date by and among the
United States Fish And Wildlife Service ("USFWS"), an agency of the United
States Department of the Interior, the National Marine Fisheries Service
("NMFS"), an agency of the National Oceanic and Atmospheric Administration
("NOAA"), of the United States Department of Commerce, the California Department
of Fish and Game ("CDFG"), an agency of the State of California, the California
Department of Forestry and Fire Protection ("CDF"), an agency of the State of
California, and the Pacific Lumber Company, Scotia Pacific Company, LLC, and
Salmon Creek Corporation (collectively, "PALCO").
These entities may be referred to collectively as "Parties" and each
individually as a "Party." USFWS and NMFS may be referred to collectively as the
"Services," and each individually as a "Service." USFWS, NMFS and CDFG may be
referred to collectively as the "Wildlife Agencies," and each as a "Wildlife
Agency." The Wildlife Agencies and CDF are referred to collectively as the
"Agencies." (Additional defined terms are set forth in the "Recitals and
Purposes" portion of this Agreement and in Section I of
this Agreement.)
RECITALS AND PURPOSES
A. PALCO owns approximately 211,700 acres within Humboldt County,
California (the "PALCO Lands"). PALCO is in the process of acquiring
and is planning to acquire certain additional lands near or adjacent
to the PALCO Lands (the "Additional Lands"; the PALCO Lands and
Additional Lands are referred to collectively herein as the "Covered
Lands"). The Covered Lands fall within several major watersheds in
Humboldt County, California. Certain portions of these watersheds form
the Plan Area for this Agreement (the "Plan Area"). The Plan Area is
depicted on Map No. 2 in Volume V of the Draft SYP/HCP; see also HCP,
Attachments, Volume II, Part B: PALCO Ownership by Assessor Parcels.
B. In September 1996, the United States and the State of California,
acting through its Secretary of Resources, entered into an agreement
providing for the sale of the Headwaters Reserve to the United States
and State of California and establishing certain conditions on such
sale including, but not limited to, the approval of a habitat
conservation plan (HCP) and issuance of associated incidental take
permits by USFWS and NMFS, and the approval of a sustained yield plan
by the CDF, all with regard to timber harvesting and related
activities on the Covered Lands.
C. The Covered Lands have been determined to possess habitat values which are
important to the conservation and recovery of certain threatened,
endangered, and other species of concern.
D. USFWS and NMFS have jurisdiction over the conservation, protection,
restoration, enhancement, and management of fish, wildlife, native plants
and their habitats under various federal laws, including the federal
Endangered Species Act, 16 USC Section 1531 et seq. ("FESA"), the Fish and
Wildlife Coordination Act, 16 USC Section 661-666c, and the Fish and
Wildlife Act of 1956, 16 USC Section 742a et seq.
E. CDF has jurisdiction over the timberlands in the State of California as set
forth in the Forest Practice Act, the California Timberland Productivity
Act of 1982, and the implementing regulations for those statutes.
F. CDFG has jurisdiction over the conservation, protection, restoration,
enhancement and management of fish, wildlife, native plants, and habitat
necessary for biologically sustainable populations of those species under
the California Endangered Species Act (California Fish
and Game Code Section 2050 et seq., "CESA"), and other State law including
but not limited to the Native Plant Protection Act (California Fish and
Game Code Section 1900 et seq.) and California Fish and Game Code Sections
Section 1600 et seq., 3503.5 and 3511. In addition, pursuant to Section
1802 of the California Fish and Game Code, CDFG is trustee for fish and
wildlife resources.
G. PALCO desires to use the Covered Lands, including, upon their acquisition
by PALCO, the Additional Lands, for the Covered Activities, including
activities relating to timber production and harvesting, road construction
and maintenance, rock quarrying, and rock extraction from borrow pits, and
the Operating Conservation Program activities, as particularly described at
Section 3.4 of the HCP.
▇. ▇▇▇▇ prohibits the "Take" of species listed as endangered or
threatened under FESA. Under Section 10(a) of FESA (16 USC Section
1539(a)), the Services may issue an incidental take permit authorizing
the Take of endangered or threatened species incidental to the
carrying out of otherwise lawful activities if certain statutory
requirements are met by the applicant and such Take will not
appreciably reduce the likelihood of the survival and recovery of the
species in the wild. To obtain an incidental take permit, the
applicant must submit a habitat conservation plan describing, among
other things, the steps the applicant will take to minimize and
mitigate to the maximum extent practicable the impact of such taking.
▇. ▇▇▇▇ prohibits the "Take" of species listed as endangered, threatened
or candidate species under CESA. CESA authorizes the take of listed
species incidental to otherwise lawful activities if the impacts of
the Take are minimized and fully mitigated, if issuance of the permit
would not jeopardize the continued existence of the species, and the
permit applicant has ensured adequate funding to implement the
measures required to ensure the impacts of the authorized take are
minimized and fully mitigated and for monitoring compliance with and
the effectiveness of those measures. The measures required to minimize
and fully mitigate the impacts of the Take are required to be "roughly
proportional in extent to the impact of the authorized take." Where
various measures are available to meet this obligation, the measures
required shall maintain the applicant's objectives "to the greatest
extent possible."
J. The Covered Activities may result in the Take of species listed as
threatened or endangered under FESA and threatened or endangered, or a
candidate for such status, under CESA. In order to obtain permits to
allow the Incidental Take of these species under Section 10(a)(1)(B) of
FESA the HCP sets forth a series of measures to minimize and mitigate to
the maximum extent practicable the effects of Take incidental to the
Covered Activities. In order to obtain a permit under Section 2081(b) of
the California Fish and Game Code for Incidental Take of these species
under CESA, the HCP sets forth a series of measures to minimize and fully
mitigate the effects of Take incidental to the Covered Activities.
K. The purposes of this Agreement are (1) to ensure implementation of
each of the terms of the HCP; (2) to describe remedies and recourse
should any party fail to perform its obligations as set forth in the
HCP and this Agreement; and (3) to provide long term assurances to
PALCO that as long as the terms of the HCP, the Federal Permit, the
State Permit and this Agreement are fully performed, no additional
conservation or mitigation will be required of PALCO to minimize and
mitigate the impacts of Take of the Covered Species on the Covered
Lands except as provided in the HCP and this Agreement or required by
law.
L. PALCO is agreeing to substantial commitments of land, natural resources,
money and other property for the conservation of the Covered Species and
their habitats, and is agreeing to other substantial restrictions on the
use of the Covered Lands based on the assurances provided by the Agencies
in this Agreement. These commitments would not have been made by PALCO but
for the assurances of the Agencies provided in the HCP and this Agreement.
AGREEMENT
For good and valuable consideration, the receipt and adequacy of which are
acknowledged, the Parties agree as follows:
1. DEFINITIONS
"AB 1986" means Assembly Bill No. 1986 enacted by the California State
Legislature in 1998 which appropriates funds for the State of California's share
of the cost of acquisition of the Headwaters Reserve on satisfaction of certain
conditions specified in the legislation.
"ADAPTIVE MANAGEMENT" means a flexible, iterative approach to long-term
management of biotic resources and achievement of the HCP's biological
objectives that is directed over time by the results of ongoing monitoring
activities, changed conditions and new information. Biological management
techniques and specific objectives are regularly evaluated in light of
monitoring results and other new information. These evaluations are used over
time to adapt both the management directives and techniques to better achieve
the HCP's overall biological objectives.
"ADDITIONAL LANDS" means those area within the Plan Area which are not owned by
PALCO as of the Effective Date but which will become Covered Lands to which the
Wildlife Agencies will apply the Take authority granted by the Wildlife Agencies
to PALCO pursuant to the HCP and this Agreement once PALCO acquires such lands,
or the right to use such lands for Covered Activities, in accordance with
Sections 5.1 and 5.2 of this Agreement. The Additional Lands are depicted on Map
No. 4 in Volume V of the Draft SYP/HCP.
"AGREEMENT" means this Agreement Regarding the Implementation of the PALCO
Habitat Conservation Plan by and among USFWS, NMFS, CDFG, CDF and PALCO.
"ANNUAL REPORT" shall have the meaning set forth in Section 3.4.2 of this
Agreement.
"AQUATICS CONSERVATION PLAN" means that component of the HCP's Operating
Conservation Program " found at Section 6.3 of the HCP attached as Appendix P to
the FEIS/EIR.
"ASSURANCES RULE" means the regulations promulgated jointly by the USFWS and
NMFS at 50 CFR Section 17.3, 50 CFR Section 17.22(b)(5) and (6), 50 CFR Section
17.32(b)(5) and (6), and 50 CFR Sections 222.3 and 222.22(g) and (h) as of the
Effective Date, and attached as Exhibit "D" hereto.
"BGEPA" means the Bald and Golden Eagle Protection Act (16 USC Section 668-
668d).
"CDF" means the California Department of Forestry, or any successor agency
thereof.
"CDFG" means the California Department of Fish and Game, or any successor
agency thereof.
"CEQA" means the California Environmental Quality Act (Cal. Pub. Resources
Code Section 21000 et seq.).
"CESA" means the California Endangered Species Act (Cal. Fish & Game Code
Section 2050 et seq.).
"CHANGED CIRCUMSTANCE NOTICE" means the notice concerning the conservation and
mitigation measures or other planned response to a Changed Circumstance
to be provided by USFWS, NMFS, and/or CDFG, as applicable, pursuant to Sections
6.1.6.4.2 and 6.2.3.2.1 of this Agreement.
"CHANGED CIRCUMSTANCES" means those changes in circumstances affecting a
Covered Species or the Plan Area as specifically provided for pursuant to
Attachment No. 4 to the HCP.
"CONSERVATION AND MITIGATION" and "CONSERVATION OR MITIGATION" means the
commitment of land, water, and financial compensation, and restrictions on the
use of land, water or other natural resources.
"CONSERVED HABITAT AREAS" means the MMCAs.
"COVERED ACTIVITIES" means the following activities described in Section C.4 of
the HCP attached as Appendix P to the FEIS/EIR: (a) all activities relating to
timber management, including timber harvest, site preparation, tree planting,
vegetation management (with the exception of forest chemicals, i.e. herbicide,
pesticide, and fertilizer use), thinning, and fire suppression; (b) rock
extraction from borrow pits for a period of five years from the Effective Date;
(c) road construction, improvement, maintenance and use; (d) scientific surveys
and studies; (e) rock quarrying from PALCO's two commercial rock quarries for a
period of two years from the Effective Date; (f) all activities included within
the Operating Conservation Program; and (g) with the exceptions noted above, all
activities necessarily incident to such activities. These activities are further
described in Section C.4 of the HCP.
"COVERED LANDS" means the lands upon which the Federal Permit and State Permit
authorize Incidental Take of Covered Species and the lands to which the
Operating Conservation Program applies, including, upon their acquisition, the
Additional Lands. These lands are depicted on Map Nos. 2 and 4 in Volume V of
the draft SYP/HCP. Incidental Take authorization for Additional Lands will
become effective only in accordance with Sections 5.2 and 5.3.2 of this
Agreement.
"COVERED SPECIES" means the Species for which Incidental Take authority for
Covered Activities is being granted by the Wildlife Agencies to PALCO pursuant
to the Federal Permit and the State Permit. Covered Species include the Federal
Listed Species, the State Listed Species, and the Other Species of Concern. The
list of Covered Species is attached as Exhibit "A."
"EFFECTIVE DATE" means the date following execution of this Agreement by
all Parties on which the Federal Permit and the State Permit take effect so
as to authorize the Incidental Take of Covered Species by PALCO pursuant to
the Covered Activities. The Federal Permit and the State Permit shall take
effect on the later of March 1, 1999, or the date the Federal Permit and State
Permit are delivered to PALCO pursuant to the "Headwaters Escrow Instructions"
(Escrow No. 206816); provided that if the Federal Permit and State Permit do not
take effect on March 1, 1999, the Federal Permit and the State Permit may be
rescinded prior to the Effective Date upon the mutual agreement of PALCO and the
Wildlife Agencies or by the Wildlife Agencies after a reasonable time and after
advance written notice to PALCO.
"ELK RIVER PROPERTY" means the property owned by the Elk River Timber Company
prior to the Effective Date and transferred to PALCO on or about the Effective
Date as part of the Headwaters Reserve acquisition by the United States and
State of California.
"FEDERAL LISTED SPECIES" means the Covered Species which are listed as
threatened or endangered species under FESA as of the Effective Date, and the
Covered Species which are listed as threatened or endangered pursuant to FESA
during the term of the HCP, as of the date of such listing.
"FEDERAL PERMIT" means, collectively, the permit issued by USFWS and the permit
issued by NMFS pursuant to Section 10(a) of FESA to permit Incidental Take of
Covered Species which may occur as a result of Covered Activities by PALCO on
the Covered Lands. Depending on the context in which the term is used in the
text of this Agreement, "Federal Permit" may also mean the individual permit
issued by USFWS or the individual permit issued by NMFS.
"FESA" means the Federal Endangered Species Act of 1973, as amended (16 USC
Section 1531 et seq.).
"FOREST PRACTICE ACT" means the Z'▇▇▇▇-▇▇▇▇▇▇▇ Forest Practice Act of 1973
(Cal. Pub. Resources Code, Section 4511 et seq.).
"FULLY PROTECTED SPECIES" means any Covered Species found at California Fish and
Game Code Section 3511 or any successor statute.
"HCP" means the PALCO Habitat Conservation Plan, dated February 1999, and
approved by the Wildlife Agencies.
"INCIDENTAL TAKE" means the Take of a Species which is incidental to an
otherwise lawful activity.
"MBTA" means the Migratory Bird Treaty Act of 1918, as amended (16 USC Sections
703-712).
"MMCAs" mean the Marbled Murrelet Conservation Areas. The MMCAs are those
areas identified in Section 3.1.1 of this Agreement and depicted on Figure 2 of
the HCP in which the Covered Activities are restricted, pursuant to Section
3.1.1 of this Agreement, to MMCA Conservation Activities.
"MMCA CONSERVATION ACTIVITIES" means those activities, specifically listed
at Section 3.1.1. of this Agreement and Section 6.1 of the HCP, which
PALCO may conduct in the MMCAs.
"MURRELET RECOVERY PLAN" means the most recent recovery plan in existence for
the marbled murrelet (Brachyramphus marmoratus), and approved by USFWS in
accordance with FESA.
"NEPA" means the National Environmental Policy Act (42 USC Section 4321 et
seq.).
"NMFS" means the National Marine Fisheries Service, or any successor agency
thereto.
"OPERATING CONSERVATION PROGRAM" means the conservation and management measures,
provided under the HCP to minimize, mitigate and monitor the impacts of Take of
the Covered Species as described in Section 6 of the HCP. The Operating
Conservation Program's conservation and management measures include PALCO's
reporting obligations under the Federal Permit and State Permit and those
measures described at Attachment 4 to the HCP to respond to Changed
Circumstances.
"OTHER SPECIES OF CONCERN" means those Covered Species which are not Federal
Listed Species and are not State Listed Species.
"PALCO" means, collectively, The Pacific Lumber Company, Scotia Pacific Company,
LLC, and Salmon Creek Corporation (or the specifically identified subsidiaries
of The Pacific Lumber Company existing on the Effective Date owning Covered Land
and/or engaging in Covered Activities on the Covered Land, and signatory to the
Agreement), their officers, directors, employees, and agents.
"PALCO LANDS" means those lands owned by PALCO as of the Effective Date within
the Plan Area. Those lands comprise approximately 211,700 acres and are depicted
on Map No. 2, Volume V of the Draft SYP/HCP.
"PARTY" shall have the meaning set forth in the introductory paragraph of
this Agreement.
"PLAN AREA" means the area depicted on Map No. 2, Volume V of the Draft
SYP/HCP.
"SPECIES" shall have the meaning ascribed to such term in FESA and its
implementing regulations.
"STATE LISTED SPECIES" means the Covered Species which are listed as threatened
or endangered species, or a candidate for such status, under CESA, as of the
Effective Date, and the Covered Species which are listed as threatened or
endangered, or a candidate for such status pursuant to CESA during the term of
the HCP, as of the date of such listing.
"STATE PERMIT" means the permit issued by CDFG pursuant to Section 2081 (b) and
(c) of the California Fish and Game Code.
"STREAMBED ALTERATION AGREEMENT" means that certain Streambed Alteration
Agreement, dated the Effective Date, by and between CDFG and PALCO, a form of
which is attached as Exhibit "B" and incorporated into the HCP's Operating
Conservation Program.
"SYP" means the Sustained Yield Plan for the Covered Lands approved by CDF in
accordance with the Forest Practice Act and the implementing regulations
thereof.
"TAKE" and "TAKING" have the same meaning as provided in FESA and its
implementing regulations with regard to activities subject to FESA and have the
same meaning as provided in California state law with regard to activities
subject to CESA and other applicable provisions of the California Fish and Game
Code.
"UNFORESEEN CIRCUMSTANCES" means changes in circumstances affecting a Covered
Species or the Plan Area that could not reasonably have been anticipated by
PALCO, NMFS, USFWS and CDFG at the time of the HCP's negotiation and development
and that result in a substantial and adverse change in the status of one or more
of the Covered Species.
"USFWS" means the United States Fish and Wildlife Service, or any successor
agency thereto.
"WILDLIFE AGENCY" shall have the meaning set forth in the Introductory Paragraph
of this Agreement.
2. FINDINGS AND OBLIGATIONS OF THE AGENCIES
2.1 USFWS
2.1.1 USFWS FINDINGS
For each Covered Species which is a Federal Listed Species within the
jurisdiction of the USFWS, USFWS finds that the HCP has satisfied the permit
issuance criteria under Section 10(a)(2)(B) of FESA in that:
(i) The Taking of the Covered Species will be incidental;
(ii) PALCO will, to the maximum extent practicable, minimize and
mitigate the impacts of the Taking;
(iii) PALCO has ensured that adequate funding for the HCP will be
provided;
(iv) The Taking of the Covered Species will not appreciably reduce the
likelihood of the survival and recovery of the Covered Species in
the wild;
(v) The other measures required by USFWS as being necessary or
appropriate for purposes of the HCP will be met; and
(vi) USFWS has received such other assurances as USFWS required that
the HCP will be implemented.
For each Covered Species which is not a Federal Listed Species, USFWS finds that
the HCP has satisfied the permit issuance criteria under Section 10(a)(2)(B) of
the FESA that would otherwise apply if such Covered Species were a Federal
Listed Species.
2.1.2 USFWS OBLIGATIONS
Concurrent with the execution of this Agreement by all Parties, and on
satisfaction of all other applicable legal requirements, USFWS will issue to
PALCO the Federal Permit under Section 10(a)(1)(B) of the FESA, authorizing the
Incidental Take by PALCO of each Covered Species within the jurisdiction of
USFWS resulting from Covered Activities on the Covered Lands. The Federal Permit
will be conditioned on compliance with the terms and conditions of the Federal
Permit, the HCP, and this Agreement.
USFWS shall monitor PALCO's implementation of the HCP and compliance with the
Federal Permit, and shall provide technical assistance to PALCO regarding
implementation of the HCP throughout the duration of the Federal Permit.
2.2 NMFS
2.2.1 NMFS FINDINGS
For each Covered Species within the jurisdiction of NMFS which is a Federal
Listed Species, NMFS finds that the HCP has satisfied the permit issuance
criteria under Section 10(a)(2)(B) of FESA in that:
(i) the Taking of the Covered Species will be incidental;
(ii) PALCO will, to the maximum extent practicable, minimize and
mitigate the impacts of the Taking;
(iii) PALCO has ensured that adequate funding for the HCP will be
provided;
(iv) the Taking of the Covered Species will not appreciably reduce the
likelihood of the survival and recovery of the Covered Species in
the wild;
(v) the other measures required by NMFS as being necessary or
appropriate for purposes of the HCP will be met; and
(vi) NMFS has received such other assurances as NMFS required that the
HCP will be implemented.
For each Covered Species which is not a Federal Listed Species, NMFS finds that
the HCP has satisfied the permit issuance criteria under Section 10(a)(2)(B) of
the FESA that would otherwise apply if such Covered Species were a Federal
Listed Species.
2.2.2 NMFS OBLIGATIONS
Concurrent with the execution of this Agreement by all Parties, and on
satisfaction of all other applicable legal requirements, NMFS will issue to
PALCO the Federal Permit under Section 10(a)(1)(B) of the FESA authorizing the
Incidental Take by PALCO of each Covered Species within the jurisdiction of NMFS
resulting from Covered Activities on the Covered Lands. The Federal Permit will
be conditioned on compliance with the terms and conditions of the Federal
Permit, the HCP, and this Agreement.
NMFS shall monitor PALCO's implementation of the HCP and compliance with the
Federal Permit, and shall provide technical assistance to PALCO regarding
implementation of the HCP throughout the duration of the Federal Permit.
2.3. CDFG
2.3.1. CDFG FINDINGS
For each Covered Species within the jurisdiction of the CDFG, pursuant to the
specific findings set forth below that, based on the best available scientific
information and other information that is reasonably available, as of the
Effective Date the HCP has satisfied the permit issuance criteria under Section
2081 of the California Fish and Game Code, CDFG finds that:
(i) the Taking of the Covered Species will be incidental to an
otherwise lawful activity;
(ii) the impacts of the authorized Take of the Covered Species will be
minimized and fully mitigated;
(iii) the measures set forth in the HCP to minimize and fully mitigate
the impacts of the authorized Take of the Covered Species are
roughly proportional in went to the impact of the authorized
Taking of the Covered Species;
(iv) the measures set forth in the HCP to minimize and fully mitigate
the impacts of the authorized Take of the Covered Species
maintain PALCO's objectives to the greatest extent possible;
(v) all of the measures set forth in the HCP to minimize and fully
mitigate the impacts of the authorized Take of the Covered
Species are capable of successful implementation;
(vi) PALCO has ensured adequate funding to minimize and fully mitigate
the impacts of the authorized Take of the Covered Species and for
monitoring compliance with, and effectiveness of, such measures;
(vii) issuance of the State Permit will not jeopardize the continued
existence of the Covered Species;
(viii) the measures set forth in the HCP are intended to ensure that the
Covered Activities under the State Permit will avoid the Take of
any Fully Protected Species;
(ix) the measures set forth in the HCP and the Streambed Alteration
Agreement incorporated therein are intended to ensure that the
effects of the specific Covered Activities on Covered Species, as
identified in Exhibit C of the Streambed Alteration Agreement
(attached as Exhibit "B")
which may substantially divert or obstruct the natural flow or
substantially change the bed, channel, or bank of any river,
stream, or lake on Covered Lands will be minimized and fully
mitigated consistent with CESA and the State Permit, pursuant to
California Fish and Game Code Section
1603.
2.3.2 CDFG OBLIGATIONS
Concurrent with the execution of this Agreement by all Parties, and on
satisfaction of all other applicable legal requirements, CDFG will issue to
PALCO the State Permit under Section 2081(b) of the CESA, authorizing the
Incidental Take by PALCO of each Covered Species within the jurisdiction of CDFG
resulting from Covered Activities on the Covered Lands. The State Permit will be
conditioned on compliance with the terms and conditions of the State Permit, the
HCP, and this Agreement.
CDFG shall monitor PALCO's implementation of the HCP and compliance with the
State Permit, and shall provide technical assistance to PALCO regarding
implementation of the HCP throughout the duration of the State Permit.
2.4 CDF Obligations
Concurrent with the execution of this Agreement by all Parties, and on
satisfaction of all legal requirements, CDF will approve the SYP, a component of
which is the HCP. CDF shall monitor PALCO's implementation of the SYP, in part,
through the THP review process. CDF shall require as a condition of approval of
each THP that the THP incorporate all of the conservation and management
measures of HCP's Operating Conservation Program that are relevant to the THP.
CDF shall monitor and enforce PALCO's compliance with each THP.
3. PALCO RIGHTS AND OBLIGATIONS
3.1. OBLIGATIONS OF PALCO
PALCO will fully and faithfully perform all obligations assigned to it under
this Agreement, the Federal Permit, the State Permit and the HCP including, but
not limited to the following:
3.1.1 MARBLED MURRELET CONSERVATION AREAS (MMCAS)
The MMCAs are depicted on Figure 2 of the HCP and described in detail at Section
6.1 of the HCP and encompass the following ▇▇▇▇▇▇:
(i) Elkhead Residual
(ii) ▇▇▇▇▇▇ Mill
(iii) ▇▇▇▇▇ Creek
(iv) Road 3
(v) Owl Creek
(vi) Shaw Gift
(vii) Right Road 9
(viii) Road 7 and 9 North
(ix) Booth's Run
(x) ▇▇▇▇ ▇▇▇▇▇▇▇▇
(xi) Lower North Fork Elk
For the term of the Federal Permit and State Permit, or if the Federal or State
Permit is relinquished or revoked prior to expiration of its 50-year term, until
the impacts of Take that occurred under the relinquished or revoked permit are
fully mitigated in accordance with Section 8.5 of this Agreement, PALCO shall
not conduct timber harvesting, including salvage logging and other management
activities that are detrimental to the marbled murrelet or marbled murrelet
habitat within any MMCA. Consistent with this prohibition, PALCO will engage
only in MMCA Conservation Activities and other management activities in the
MMCAs as provided in subsections (a) and (b).
(a) The following MMCA Conservation Activities have been determined by the
Wildlife Agencies to be compatible with protection of, or beneficial
to, the marbled murrelet and its habitat within the MMCAs, and the
other Covered Species and their habitats within the MMCAs and shall be
allowed within the MMCAs in accordance with the restrictions and
conditions identified in Section 6.1 of the HCP:
(i) Use, maintenance, upgrading, storm proofing, closing and
decommissioning of existing, active roads depicted on Map No.
8, Volume V of the Draft SYP/HCP (removal of trees as
reasonably necessary to accomplish road use, maintenance and
storm proofing is allowed; however, all trees removed within a
Riparian Management Zone (RMZ) must be left near the location
of their removal);
(ii) Rock and gravel mining at existing quarry in ▇▇▇▇▇ Creek MMCA
as more particularly described in Section 3.4.3 of the HCP;
(iii) Establishment of two designated borrow pits within each MMCA. A
maximum of four acres may be cleared in connection with
existing or new borrow pits within each MMCA over the life of
the Permits (removal of trees not to exceed 12 inches dbh per
tree is allowed where reasonably necessary to excavate the
borrow pits);
(iv) Scientific surveys conducted as part of the MMCA's monitoring
program as more particularly described in Section F6.1 of the
HCP;
(v) Removal of trees blocking roads identified in paragraph (i) in
conformance with the Aquatics Conservation Plan provided such
trees are left near the location of their removal;
(vi) Fuel removal limited to within old growth residuals stands and
second-growth stands with the prior written concurrence of
USFIS and CDFG;
(vii) Fire suppression in accordance with a fire management plan for
the MMCAs approved by the Wildlife Agencies within one year of
the Effective Date;
(viii) Stream enhancement projects with prior written concurrence
of the Wildlife Agencies; and
(ix) Hunting allowed during September 16 - March 23 as otherwise
authorized by regulation (outside of marbled murrelet nesting
season).
Except as provided in subsection (b) of this Section 3.1.1, no activities other
than the MMCA Conservation Activities listed in this section, as conditioned and
restricted in Section 6.1 of the HCP, shall be allowed within any MMCA unless
the Wildlife Agencies determine, following compliance with all applicable laws
and regulations including NEPA and CEQA, that such activities are compatible
with protection of, or are beneficial to, the marbled murrelet and its habitat
and the other Covered Species and their habitats consistent with the HCP.
(b) With the exception of those activities identified in subsection
(a) of this Section 3.1.1, any activity involving the removal
of timber from an MMCA, including pre-commercial and commercial
thinning, shall be allowed only on a case by case basis and only
if the Wildlife Agencies determine that the specific activity
will be beneficial to the marbled murrelet and its habitat, and
is in conformance with the Aquatics Conservation Plan. Such
timber removal activities will be allowed only at the specific
written request and/or written approval of the Wildlife Agencies
in advance of such activity, following compliance with all
applicable laws and regulations, including NEPA and CEQA. Such
compliance shall include determining whether the environmental
documentation in existence at that time adequately discloses the
impacts of the proposed activity to ensure compliance with NEPA
and CEQA. The Wildlife Agencies recognize, however, that the
MMCA Conservation Activities identified in subsection (a) are
allowed pursuant to this Agreement and the HCP, and therefore
will not require any further compliance under NEPA or CEQA on the
part of the Wildlife Agencies.
(c) In each Annual Report, PALCO shall to the extent known identify the
proposed MMCA Conservation activities for each of the above-listed
MMCAs that PALCO anticipates conducting in such MMCA over the next
calendar year. The absence of the description of an MMCA Conservation
Activity in an Annual Report shall not preclude PALCO from undertaking
such Conservation Activities.
3.1.2 GRIZZLEY CREEK COMPLEX
All timber harvesting, including salvage logging and other management
activities, shall be prohibited on all lands within the Grizzley Creek Complex
as depicted on Figure 4 of the HCP for a period of five years from the Effective
Date to provide an opportunity for purchase and permanent protection of such
lands. If such purchase and protection does not occur, then, at the end of the
five-year period, harvesting of the Grizzley Creek Complex shall be allowed
pursuant to the prescriptions applicable to Covered Lands outside of the MMCAs
unless prior to the end of the five year period it is determined by USFWS that
Take resulting from timber harvest and other Covered Activities within the
Grizzley Creek Complex would be inconsistent with Section 10(a)(2)(B)(iv) of
FESA with regard to the marbled murrelet or by CDFG that Take resulting from
timber harvest or other Covered Activities within the Grizzley Creek Complex
would be inconsistent with Section 2081(c) of CESA with regard to the marbled
murrelet. To assist USFWS and CDFG in making their respective determinations,
USFWS and CDFG shall convene a panel of five independent science advisors
("Grizzley Panel") who shall be qualified in conservation biology and/or marbled
murrelet biology. USFWS, CDFG and PALCO shall each designate one member of the
Grizzley Panel and the three designated panel members shall collectively
designate two additional panel members by unanimous vote.
(i) The panel members shall be designated before the beginning of the
fifth year following the Effective Date and the Grizzley Panel shall
convene within 45 days after its establishment;
(ii) The Grizzley Panel shall consider the available scientific
information relevant to the marbled murrelet population across
its listed range in California, Oregon and Washington, including
marbled murrelet biology, current status, population trends,
habitat requirements and, in particular, information developed
since the Effective Date. USFWS, CDFG and PALCO shall cooperate
fully in providing relevant information and assistance to the
Grizzley Panel;
(iii) A minimum of four months prior to the five year anniversary of the
Effective Date, the Grizzley Panel shall provide a written report to
USFWS, CDFG and PALCO regarding the factors relevant to USFWS's and
CDFG's determinations. Additionally, each member of the Panel may
submit his or her separate views.
(iv) Pursuant to Section 10(a)(2)(B)(iv) of FESA, the USFWS shall
determine whether the Take resulting from timber harvest and other
Covered Activities within the Grizzley Creek Complex in accordance
with the HCP will appreciably reduce the likelihood of the survival
and recovery of the marbled murrelet. USFWS
shall make its determination in accordance with 50 CFR Part 402. Any
such determination shall be accompanied by an analysis of the
available scientific information including the written report of the
Grizzley Panel.
(v) Pursuant to Section 2081(c) of the California Fish and Game
Code, CDFG shall determine whether the take resulting from
timber harvesting and other Covered Activities within the
Grizzley Creek Complex in accordance with the HCP will
jeopardize the continued existence of the marbled murrelet
throughout all or significant portion of its range across
California, Oregon and Washington. Any such determination shall
be accompanied by an analysis of the available scientific
information, including the written report of the Grizzley Panel.
(vi) If USFWS determines that allowing timber harvest and other
Covered Activities within the Grizzley Creek Complex would be
inconsistent with Section 10(a)(2)(B)(iv) with regard to the
marbled murrelet or CDFG determines that allowing timber harvest
and management activities would be inconsistent with Section
2081(c) of CESA with regard to the marbled murrelet, then all
lands within the Grizzley Creek Complex shall be protected as an
MMCA as provided in Section 3.1.1.
3.1.3 IMPLEMENTATION OF OPERATING CONSERVATION PROGRAM
PALCO will implement all of the conservation and management measures as set
forth in the HCP's Operating Conservation Program, or such measures as they may
be modified through adaptive management, including the measures provided for
under the Aquatics Conservation Plan and Changed Circumstances sections of the
program. The Aquatics Conservation Plan measures are identified in Section 6.3
of the HCP.
3.1.3.1 WATERSHED ANALYSIS
PALCO will work collaboratively with the Wildlife Agencies and other Federal and
state regulatory agencies to develop site-specific conservation and management
prescriptions for aquatic Covered Species necessary to achieve over time
properly functioning aquatic habitat conditions through the watershed analysis
process incorporated into the Aquatics Conservation Plan of the HCP's Operating
Conservation Program, described at Section 6.3 of the HCP.
(i) Within 60 days from the Effective Date, PALCO, in consultation with
the Wildlife Agencies, shall establish a schedule for
completing the watershed analysis process within five years.
(ii) At least one representative from PALCO and each of the Wildlife
Agencies will serve on watershed analysis teams to develop
site-specific conservation and management prescriptions for
each watershed within the Plan Area containing Covered Lands.
If available, a representative from the U.S. Environmental
Protection Agency and a representative of the California
Department of Conservation will also serve on the watershed
analysis team. The North Coast Regional Water Quality Control
Board and the CDF may also each elect to have a representative
on the watershed analysis team.
(iii) The watershed analysis team will develop recommended site specific
prescriptions which are based on the best available science and data
and which are the most compatible with PALCO's operational needs
consistent with protection of the affected Covered Species as
provided under the Aquatics Conservation Plan of the HCP's Operating
Conservation Program.
(iv) Those site-specific prescriptions which are unanimously
recommended by the representatives of PALCO and the Wildlife
Agencies will be established by the Wildlife Agencies as the
site-specific conservation and management prescriptions for
that watershed. In the event the watershed analysis team
develops one or more prescriptions that are not recommended
unanimously by the PALCO and Wildlife Agency representatives,
PALCO or any of the Wildlife Agencies may request that such
prescriptions be reviewed by the Peer Review Panel established
pursuant to subparagraph (k) of this section in accordance with
the following process:
(a) The Wildlife Agencies shall refer the recommended
site-specific prescriptions to the Peer Review Panel. The
Peer Review Panel shall review the analysis and recommended
prescriptions in accordance with the criteria established
pursuant to subparagraph (c);
(b) The Peer Review Panel shall submit a written report of its
findings to the Wildlife Agencies and PALCO within 90 days
of referral. In addition, each member of the Panel may also
submit his or her separate views.
(v) Once the watershed analysis process for a particular watershed has
been completed, including review by the Peer Review Panel
as appropriate, the Wildlife Agencies will work cooperatively to
establish a uniform set of site-specific prescriptions. The Wildlife
Agencies will establish site-specific prescriptions which are the
most compatible with PALCO's operational needs, consistent with
protection of the affected Covered Species as provided under the
Aquatics Conservation Plan of the HCP's Operating Conservation
Program.
(vi) If USFWS, NMFS or CDFG establishes prescriptions that differ from
the prescriptions proposed through the watershed analysis process,
USFWS, NMFS or CDFG, as applicable, shall state in writing its
reasons for doing so.
(vii) PALCO shall implement the site-specific conservation and management
prescriptions established by the Wildlife Agencies for each
watershed pursuant to paragraph (e).
(viii) Until PALCO has implemented the site-specific conservation and
management prescriptions for a particular watershed established by
the Wildlife Agencies pursuant to paragraph (c), PALCO shall apply
the prescriptions described in Section F6.3 of the Aquatics
Conservation Plan to the watershed.
(ix) The site-specific conservation and management prescriptions
established by the Wildlife Agencies for Class I and Class II
watercourses pursuant to paragraph (e) shall be implemented by
PALCO such that those prescriptions result in a no-cut buffer
of not less than 30 feet (slope distance), and not more than
170 feet (horizontal distance) on each side of each Class I and
Class II watercourse. However, with respect to the minimum 30-
foot no-cut buffer on Class II watercourses, the Wildlife
Agencies may adjust the buffer if the Wildlife Agencies
determine that it will benefit aquatic habitat or species.
However, in no event may the minimum no cut buffer be less than
10 feet (slope distance).
(x) Pursuant to Aquatics Conservation Plan, USFWS and NMFS, in
consultation with CDF, the North Coast Regional Water Quality
Control Board and CDFG, shall develop a peer review process to
evaluate on a spot check basis the appropriateness of completed
analysis and prescriptions that are developed through the watershed
analysis process.
(xi) Within six months of the Effective Date, the Wildlife Agencies and
PALCO shall establish the Peer Review Panel described in
paragraph (d). PALCO shall designate one member of the panel, USFWS
and NMFS shall collectively designate one member of the panel and
CDFG shall designate one member of the panel. The three appointed
members shall collectively designate two additional members by
unanimous vote.
3.1.3.2 AQUATICS CONSERVATION PLAN ADAPTIVE MANAGEMENT
The purpose of adaptive management is to provide a mechanism to ensure that HCP
prescriptions are implemented in a manner that reflects sound science, taking
into account new data and analysis. Adaptive management also provides
flexibility by allowing alternative approaches for achieving biological goals
under certain circumstances, in order that the HCP can be implemented in a
manner that is sensitive to both economic concerns and biological necessities.
Adaptive management will be used to change elements of the Aquatics Conservation
Plan in response to a determination of the effectiveness of current elements of
the plan for protecting and restoring stream conditions and fish populations.
Thus, the effectiveness of the plan is assessed by examining conditions on
PALCO's ownership and determining if management is maintaining or will achieve
over time properly functioning aquatic habitat conditions.
Changes in elements of the plan are warranted if information from watershed
analysis, monitoring, any scientific studies conducted as part of the plan, or
other sources shows properly functioning aquatic conditions are not being
maintained; the plan is not substantially moving the aquatic habitat towards
achieving properly functioning conditions; a more cost effective technique
exists to attain the same biological or physical outcome; or PALCO can gain
flexibility in the prescriptions and still attain properly functioning
conditions. Adaptive management is the means to ensure that the plan maintains
or achieves, over time, the habitat goal of a properly functioning aquatic
condition.
PALCO may at any time propose changes to elements of the Aquatics Conservation
Plan that are not in conflict with AB 1986 as part of adaptive management. At
PALCO's request, any such changes proposed by PALCO shall be promptly reviewed
by the peer review panel established pursuant to Section 3.1.3.1(k) of this
Agreement. PALCO and, if applicable, the peer review panel, shall provide to the
Wildlife Agencies a written evaluation as to whether the proposed changes will
impair the ability of the plan to maintain or achieve, over time, properly
functioning aquatic habitat conditions. The Wildlife Agencies will consider
PALCO's proposed changes, the peer review panel's written evaluation, if any,
and other available
information. The Wildlife Agencies shall approve PALCO's proposed changes that
are not in conflict with AB 1986 unless they find, in writing, that PALCO's
proposed changes will impair the ability of the plan to maintain or achieve,
over time, properly functioning aquatic habitat conditions. The Wildlife
Agencies shall disapprove PALCO's proposed changes if they are in conflict with
AB 1986 or if the Wildlife Agencies find, in writing, that PALCO's proposed
changes will impair the ability of the plan to achieve, over time, or maintain
properly functioning aquatic habitat conditions.
3.1.4 REVIEW OF TIMBER HARVEST PLANS
PALCO shall submit each timber harvest plan (THP) which includes Covered Lands
to NMFS in Santa Rosa, California and to USFWS in Eureka, California at least 30
days prior to the earliest possible date of THP approval by CDF, for review and
comment and a finding as to whether the THP is consistent with the Federal
Permit. The THP shall incorporate all of the conservation and management
measures of the HCP's Operating Conservation Program that are relevant to the
particular THP.
3.1.5 NO INCREASE IN TAKE
This Section 3.1 does not authorize any modification that would result in an
increase in the amount and nature of Take, or increase the impacts of Take, of
Covered Species beyond that authorized under the Federal Permit and State Permit
and any amendments thereto (including any environmental document evaluating the
HCP or amendments thereto). Any modification that would result in such an
increase in Take beyond that authorized under the Federal Permit and State
Permit must be approved as a permit amendment under Section 7.2 of this
Agreement.
3.2. COVERED ACTIVITIES
As of the Effective Date, PALCO may Take the Covered Species incidental to the
Covered Activities on the Covered Lands, as authorized by and subject to the
conditions of the Federal Permit, the State Permit, the HCP and this Agreement.
Activities under approved THPs that are determined by CDF to be consistent with
the February 27, 1998 Pre-Permit Agreement in Principle, and that are
implemented in whole or in part after the Effective Date, are covered under the
Federal Permit and State Permit. All THPs approved on or after the Effective
Date, and all activities under such THPs , shall comply with the HCP's Operating
Conservation Program.
The authority issued to PALCO hereunder applies to all of PALCO's officers,
directors, employees, agents, subsidiaries, contractors, and subcontractors, and
their officers, directors, employees and agents who
engage in any Covered Activity. Solely for purposes of the Federal Permit and
the State Permit and this Agreement, PALCO's employees, agents, subsidiaries,
contractors, and subcontractors, and their officers, directors, employees and
agents shall be deemed under the direct control of, and acting as agents of
PALCO. PALCO shall conduct an educational program, approved by the Wildlife
Agencies, to fully inform all such persons and entities of the terms and
conditions of the Federal Permit and State Permit, including the conservation
and management measures required under the HCP's Operating Conservation Program,
and shall be responsible for supervising their compliance with those terms and
conditions. All contracts between PALCO and such persons and entities shall
require the compliance with the Federal Permit and State Permit. Solely for the
purposes of the Federal Permit, the State Permit and this Agreement, each PALCO
entity shall remain legally responsible for the Covered Activities of each such
person or entity.
Further, in the event any PALCO entity ("acting entity") takes any action on
land or with respect to timber owned by another PALCO entity ("landowning
entity"), as to such action the acting entity for all purposes connected with
the Agreement, the HCP, and the Federal and State Permits and liability arising
thereunder, where the acting entity is acting pursuant to an oral or written
contract or with the consent of the landowning entity, shall be deemed to be
acting as the agent of the landowning entity and to be acting within the course
and scope of such agency. For purposes of this provision, action includes
failure to act.
3.3 FUNDING
PALCO warrants that it has, and will expend, such funds as may be necessary to
fulfill all of its conservation and management obligations under the Federal
Permit and State Permit as described in the HCP's Operating Conservation Program
and this Agreement. The funding sources that PALCO will use to fulfill its
Permit obligations will include income derived from PALCO's Covered Activities
on the Covered Lands. By February 1 of each year the Federal and/or State Permit
is in effect, PALCO shall submit, concurrently with its submission of the Annual
Report, an annual budget with regard to its obligations under the HCP, approved
by its Board of Directors, to the Wildlife Agencies, demonstrating that
sufficient funds to carry out PALCO's commitments under the Federal Permit and
State Permit for that fiscal year have been authorized for expenditure. PALCO
will promptly notify the Wildlife Agencies of any material change in PALCO's
funding resources.
A material change in PALCO's funding resources is any change in the financial
condition of PALCO which will adversely affect PALCO's ability to
manage the Covered Lands in accordance with the terms of this Agreement and the
HCP's Operating Conservation Program.
PALCO shall provide the first annual budget covering the period immediately
following permit issuance up to the end of the first calendar year of operation
within 15 days of the Effective Date.
As a form of additional assurance of adequate funding to carry out all of its
Federal Permit and State Permit obligations, PALCO shall post security to CDFG
within 15 days of the Effective Date. The amount of security posted shall be in
the amount of $2 million, which is based on the annual estimated cost of
carrying out certain of such obligations which are described in Section 8 of the
HCP. The security may be a pledged savings or trust account, certificate of
deposit, irrevocable letter of credit, or other form approved by the Wildlife
Agencies. The amount of security shall be increased annually for one year by the
amount, if any, that PALCO was required to pay in the prior year in liquidated
damages to the State of California pursuant to a separate agreement entitled
"Agreement Relating to Enforcement of AB 1986" ("AB 1986 Agreement"). If in an
immediately preceding year PALCO was not required to pay any liquidated damages,
the amount of security would return to $2 million as adjusted for inflation in
accordance with the Consumer Price Index published by the Bureau of Labor
Statistics of the United States Department of Labor, San Francisco-Oakland-San
Jose, CA, All Items and Major Group Figures For Urban Wage Earners and Clerical
Workers (1882-84=100 (CPI). Such security may be used to secure PALCO's
obligations under the AB 1986 Agreement. However, in the event the State of
California and any of the Wildlife Agencies simultaneously call upon the
security, such security shall first serve the purposes of the Wildlife Agencies
under this Agreement.
The security shall be replenished by PALCO within 10 days as necessary to the
required amount until PALCO completes its obligations under the Federal Permit
and State Permit. The security shall be adjusted annually for inflation
according to the CPI.
Notwithstanding the prohibition on duplication in Section 6.4.1, and consistent
with the other provisions of Section 6.4.1, each PALCO entity shall be
separately required to provide, maintain and replenish the security in the
amount set forth and in accordance with the terms of this section. In the event
of any action by or liability of a PALCO entity or entities arising under this
Agreement, the HCP, or the Federal or State Permits, the Wildlife Agencies may
call upon the security posted by the PALCO entity or entities whose action or
liability was the basis of the need to call upon the security. Alternatively,
this provision shall be satisfied if the PALCO entities furnish their written
agreement in a form
satisfactory to the Wildlife Agencies providing that security in the amount of
$2 million total, as it may be required to be increased and/or replenished, is
at all times available to the Wildlife Agencies in the event of action or
liability of any PALCO entity arising under this Agreement, the HCP, or the
Federal and State Permits. For purposes of this section, action includes failure
to act.
3.4. MONITORING AND REPORTING
3.4.1. MONITORING
PALCO shall implement the implementation and effectiveness monitoring programs
described in Section 6 of the HCP. As part of the monitoring programs, PALCO
shall fund for the life of the Federal Permit and State Permit an independent
third party entity or entities, approved by the Wildlife Agencies and under
contract to CDFG, to monitor on behalf of the Wildlife Agencies PALCO's
implementation of the HCP's Operating Conservation Program (the "HCP Monitor").
The HCP Monitor shall also monitor the effectiveness of the HCP's Operating
Conservation Program if so directed by one or more of the Wildlife Agencies. The
HCP Monitor shall be qualified in forestry and fisheries and wildlife biology.
The HCP Monitor shall have full access at all times to PALCO's lands to inspect
the Covered Activities, and in particular shall be present on site during each
timber harvest conducted by or on behalf of PALCO. The HCP Monitor shall
immediately report to designated representatives of the Wildlife Agencies, CDF
and the Office of the Attorney General of the State of California any deviations
by PALCO from the conservation and management measures provided for under the
HCP's Operating Conservation Program, so that the Wildlife Agencies and CDF may
take appropriate action to enforce the Federal Permit and State Permit, the
State Forest Practice Act and other applicable Federal and state laws or
agreements. In addition, the HCP Monitor shall report quarterly to the Wildlife
Agencies concerning implementation and compliance by PALCO with the HCP's
Operating Conservation Program and, if so directed by one or more of the
Wildlife Agencies, shall report, as provided for under the HCP's Operating
Conservation Program, on the effectiveness of the HCP's Operating Conservation
Program. The intensity of the compliance monitoring to be performed by the HCP
Monitor will be reevaluated by the Wildlife Agencies at the end of the first
ten-year period following the Effective Date, and every ten years thereafter,
based on PALCO's record of compliance during the prior ten-year period.
3.4.2. ANNUAL REPORTS
As described in the HCP's Operating Conservation Program, PALCO will submit by
February I of each year, a report describing the Covered Activities
undertaken and results of the Operating Conservation Program, and the proposed
Operating Conservation Program, activities for the next year for all Covered
Lands, including the MMCAs (the "Annual Report"). As applicable, the Annual
Report will contain the results of the surveying and data collection for those
Covered Species which have multi-year reporting protocols.
The Agencies shall use reasonable efforts to review and provide written comments
on each Annual Report within sixty (60) days of receipt thereof. If any Party
requests, the Parties shall meet within such 60-day period to review the Annual
Report and PALCO's planned activities for the next year.
All Annual Reports will include the following certification from a responsible
company official who supervised or directed preparation of the report:
"I certify that, to the best of my knowledge, after appropriate inquiries by
myself and/or persons under my control of all relevant persons involved in the
preparation of this report, the information submitted is true, accurate, and
complete."
3.4.3 OTHER INFORMATION
PALCO will use its reasonable efforts to provide within thirty (30) days of
being requested by the Wildlife Agencies, any additional information in its
possession or control related to implementation of the HCP that is requested by
the Services for the purpose of assessing whether the terms and conditions of
the HCP, including the Operating Conservation Program, are being fully
implemented.
To the extent feasible, any such further information requests shall be
coordinated among the Wildlife Agencies and made in a manner to be as least
intrusive as possible to PALCO operations while permitting the Wildlife Agencies
to carry out their oversight responsibilities. In that regard, requests made
pursuant to this Section 3.4.3 shall not require PALCO to prepare any additional
reports; instead, PALCO shall be required only to provide information in its
possession or control. Nothing in this Agreement requires PALCO to disclose
communications that are subject to the attorney work product or attorney-client
privilege, or any other privilege applicable at the time the information request
is made. PALCO may designate, by notifying the Agencies in writing, any trade
secrets or commercial, proprietary, or financial information ("Confidential
Information") requested by the Agencies as exempt from disclosure by the
Agencies pursuant to a request made under the Federal Freedom of Information Act
and/or the California Public Records Act, because such
trade secret and/or information so designated (1) is Confidential Information,
(2) has not been disclosed to the public by PALCO, and (3) to PALCO's knowledge
is not routinely available to the public from other sources. Should
"Confidential Information" be requested, the Wildlife Agencies will contact
PALCO sufficiently prior to releasing any such information so as to allow PALCO
a reasonable opportunity to protect the Confidential Information from release.
This provision is not intended to limit the applicability of the Federal Freedom
of Information Act and the California Public Records Act.
3.4.4 AGENCY MONITORING
PALCO, acknowledges the necessity for the Wildlife Agencies to closely monitor
compliance with Federal Permit and State Permit and the effectiveness of the
HCP's Operating Conservation Program and will cooperate fully in such
monitoring. PALCO consents to, and will allow, entry at any reasonable hour by
agents or employees of the Wildlife Agencies on the Covered Lands. With regard
to CDFG employees, PALCO's consent satisfies the requirements of Fish and Game
Code Section 857. Agents or employees of the Wildlife Agencies may enter upon
all lands where Covered Activities are conducted and premises where records
relating to such Covered Activities are kept. In order to monitor compliance
with the Federal Permit and State Permit, the effectiveness of the HCP's
Operating Conservation Program, Federal Permit, FESA, and CESA, agents or
employees of the Wildlife Agencies may enter upon such lands or premises (1) to
inspect and monitor the Covered Lands, the Covered Species, and the Covered
Activities and (2) to inspect, during reasonable hours, any records or documents
required to be kept under the HCP. Such inspections may include taking
photographs, measurements, and samples; interviewing employees, contractors, and
agents of PALCO (PALCO shall not be precluded from having a representative
present for any such interview); and other actions that the Wildlife Agencies
determine to be necessary for such purposes. The Wildlife Agencies will use
reasonable efforts to give reasonable notice to PALCO of planned interviews with
PALCO employees or contractors.
This section shall not apply to or limit the authority of Federal law
enforcement agents or state peace officers authorized by law to enter Covered
Lands to enforce compliance with the HCP, FESA, CESA, or other Federal or state
laws. Further, nothing in this section is intended to or shall be construed to
restrict the right of access to the Covered Lands and Covered Activities
provided to the HCP Monitor under Section 3.4.1.
3.5 PHASING RIGHTS
The USFWS, CDFG and PALCO shall work cooperatively to schedule PALCO's harvest
of old-growth redwood and residual old-growth redwood outside the MMCAs in a
manner which minimizes impacts to marbled murrelets.
4. INCORPORATION OF THE HCP
The conservation and management measures provided for under the HCP's Operating
Conservation Program in Section 6 of the HCP are intended to be, and by this
reference are, incorporated herein. In the event of any direct contradiction
between the terms of this Agreement and the HCP's Operating Conservation
Program, the terms of this Agreement will control. In all other cases, the terms
of this Agreement and the terms of the HCP's Operating Conservation Program will
be interpreted to be supplementary to each other. The terms of the Federal
Permit and the State Permit shall control in the event of any direct
contradiction between those terms and the terms of this Agreement and the HCP's
Operating Conservation Program.
5. LAND TRANSACTIONS
5.1. ACQUISITION OF LAND BY PALCO GENERALLY
Nothing in this Agreement, the HCP, the Federal Permit or the State Permit
limits or restricts PALCO's right to acquire new lands, or interests in such
lands, within or outside the Plan Area. Unless such lands are Covered Lands and
the Federal Permit and State Permit have taken effect with regard to such lands
in the manner provided below, any lands, or interests in lands, as may be
acquired will not be covered by the Federal Permit or State Permit except upon
amendment of the Federal Permit and State Permit as provided in Section 7.2 of
this Agreement.
5.2. EFFECTIVE DATE FOR COVERED LANDS ACQUIRED AFTER THE EFFECTIVE DATE OF
THIS AGREEMENT
(a) The Federal and State Permits will identify all Covered Lands.
The Federal and State Permits will take effect with regard to
Covered Lands acquired after the Effective Date ("Additional
Lands") upon verification by the Services that PALCO has provided
evidence of legal control sufficient to implement the provisions
of the HCP, the Federal Permit, the State Permit and this
Agreement on such Additional Lands. Such Additional Lands shall
become Covered Lands on satisfaction of the conditions provided
in subsection (b), subject to the following limitations:
(i) No more than 25,000 acres of Additional Lands may become Covered
Lands over the term of the Permit, and such
Additional Lands must be situated within one mile of the main
contiguous portion of PALCO Lands or within the external
boundaries of the PALCO Lands and be zoned for timber
production. The PALCO Lands are depicted on Map No.
4, Volume V of the Draft SYP/HCP.
(ii) No old-growth habitat may be included, and no additional Take of
marbled murrelets will be authorized under the State and Federal
Permits within the Additional Lands.
(iii) Consistent with the Northern Spotted Owl Conservation Plan at
Section F6.2 of the HCP, no Take of northern spotted owls will
be allowed on any Additional Lands until the Additional Lands
have been surveyed to protocol, and the baseline is adjusted and
population targets modified to conform to the population density
targets of the plan.
(b) Procedure to Include Additional Lands as Covered Lands. PALCO
shall submit to the Wildlife Agencies a notice to include
Additional Lands as Covered Lands accompanied by a map showing
the location and boundaries of the Additional Lands and a
complete description of (1) the type of interest acquired, (2)
all relevant baseline conditions on the Additional Lands, (3) the
Covered Activities that will occur on the Additional Lands, and
(4) the amount and timing of Take of Covered Species expected to
occur on the Additional Lands.
Such Additional Lands will be included as Covered Lands if the
Wildlife Agencies conclude that extension of the HCP provisions to the
Additional Lands will not result in impacts not analyzed and mitigated
under the HCP and will not result in unauthorized Take under the State
and Federal Permits.
(c) Notwithstanding the 50-year term of the permit, PALCO shall
continue to apply the conservation and mitigation measures
provided for under the HCP's Operating Conservation Program to
Additional Lands, including storm proofing all roads, until the
impacts of Take resulting from Covered Activities on the
Additional Lands have been fully mitigated in accordance with
Section 8.5 of this Agreement and, upon expiration of the permit
or its early termination through revocation or relinquishment,
shall provide adequate assurances to the Wildlife Agencies as
specified at Section 8.5.3 of this Agreement that such Additional
Lands will continue to be managed in accordance with the HCP's
Operating Conservation Program until and unless full mitigation
is complete. In no event shall PALCO be required to continue to manage
the Additional Lands in accordance with the Operating Conservation
Program of the HCP longer than a period of 50 years from the date such
Additional Lands become Covered Lands in accordance with subsection
(b) this section.
(d) Proof of ownership of the Additional Lands, or proof of the right
to engage in the applicable Covered Activities relevant to such
parcel and to implement the terms of the HCP on such Additional
Land, with a written commitment by PALCO to carry out the terms
of the HCP, this Agreement, the Federal Permit and the State
Permit with regard to such Additional Lands shall constitute
adequate evidence of legal control required by subsection (a)
above as to have the Federal and State Permits take effect for
such acquired land.
5.3. DISPOSITION OF COVERED LANDS OTHER THAN IN MMCAS
5.3.1 LAND SOLD WITH RESTRICTIONS
(a) PALCO's transfer of ownership or control of Covered Lands, or
portions thereof, other than in the MMCAs, which transfers are
addressed in Section 5.5 of this Agreement, will require prior
approval by the Wildlife Agencies and an amendment of the Federal
and State Permits in accordance with Section 7.2 of this
Agreement, except that transfers of such Covered Lands may be
processed as minor modifications in accordance with Section 7.1
of this Agreement if:
(i) The Covered Lands or relevant interests in Covered Lands will be
transferred to an agency of the Federal government and, prior to
transfer, the Wildlife Agencies have determined that transfer
will not compromise the effectiveness of the HCP based on
adequate commitments by that agency regarding management of such
land; or
(ii) The Covered Lands or relevant interests in the Covered
Lands will be transferred to a non-Federal entity that has
entered into an agreement acceptable to the Wildlife
Agencies (e.g., an easement held by CDFG with the Services
as third-party beneficiaries, accompanied by the creation
of an adequate endowment for the management in perpetuity,
or other security acceptable to the Wildlife Agencies, of
such transferred Covered Lands) to reasonably ensure that
the lands will be managed in such a manner and for such
duration so as not to compromise the effectiveness of the
HCP; or
(iii) The Covered Lands or relevant interests in the Covered Lands
will be transferred to a non-Federal entity that, prior to
completion of the land transaction, has agreed to be bound by
the HCP as it applies to the transferred Covered Lands and has
obtained Federal and State incidental take permits following
normal permit procedures covering all Covered Species then
identified in PALCO's Federal and State Permits which may be
Incidentally Taken as a result of activities on the transferred
lands covered under the acquiring entity's Incidental Take
permits.
(b) The Wildlife Agencies shall use their reasonable efforts to make any
required determinations under subsections (a)(i), (a)(ii), and
(a)(iii) within 60 days of receipt of written documentation from PALCO
that the conditions contained in subsections (a), (b), and (c) have
been satisfied.
(c) Upon a transfer of Covered Lands carried out in accordance with
this section and Section 7.1, the transferred lands shall no
longer be deemed to be Covered Lands, and PALCO shall not bear
any responsibility for any management activities, nor be liable
for any Take of any Species by any other persons, on such
transferred lands. In addition, PALCO will not be required to
provide any new, additional or different conservation or
mitigation on the remaining Covered Lands beyond that provided in
the HCP to account for such sale, exchange or transfer.
5.3.2 LAND SOLD WITHOUT RESTRICTION
PALCO may dispose of Covered Lands without restriction under the following
circumstances:
(a) Where PALCO includes as Covered Lands Additional Lands, and each
of the following requirements have been met: (1) concurrent with
the disposal of a tract of Covered Lands, PALCO acquires another
tract of land; (2) neither the tract to be disposed of nor the
tract to be acquired are greater than 2,000 acres; (3) the tract
PALCO acquires is either larger or no smaller than 95% of the
size of the tract disposed of; (4) the tract to be disposed of
and the tract to be acquired contain approximately equivalent
habitat value; and (5) the addition of the acquired tract as
Covered Lands will not result in impacts not analyzed and
mitigated under the HCP, or any amendments thereto, and will not
result in unauthorized Take under the Federal and State Permits. PALCO
shall submit to the Wildlife Agencies a notice indicating its intent
to include Additional Lands as Covered Lands as a result of a land
swap accompanied by a map showing the location and boundaries of the
tract to be disposed of and the tract to be acquired and a complete
description of (A) the type of interest acquired, (B) all relevant
baseline conditions on the tract to be acquired, (C) the Covered
Activities that will occur on the Additional Lands, and (D) the amount
and timing of Take of Covered Species expected to occur on the
Additional Lands.
Such Additional Lands will be included as Covered Lands if the
Wildlife Agencies conclude, after any required environmental analysis,
that extension of the HCP provisions to the Additional Lands and the
proposed disposal of the tract to be swapped will not result in
impacts additional to or different from those analyzed and mitigated
under the HCP and will not result in unauthorized Take under the State
and Federal Permits.
(i) The Federal Permit and State Permit will take effect with regard
to the acquired tract upon verification by the Wildlife Agencies
that PALCO has provided evidence of legal control sufficient to
implement the provisions of the HCP, the Federal Permit, the
State Permit, and this Agreement on the acquired tract.
(ii) Proof of ownership of the acquired tract or proof of the right to
engage in the applicable Covered Activities relevant to such
tract and to implement the terms of the HCP on such acquired
tract to the reasonable satisfaction of the Wildlife Agencies
shall constitute adequate evidence of legal control required by
subsection (a)(i), above, so as to have the Federal Permit and
State Permit take effect for such acquired tract.
(b) The transfer is the result of a minor boundary line adjustment between
PALCO and an adjacent landowner. The aggregate net acreage of Covered
Lands that may be transferred out of PALCO ownership pursuant to minor
boundary adjustments under this subsection shall not exceed 500 acres
over the 50-year term of the permit.
Upon a transfer of Covered Lands to another landowner carried out in accordance
with this Section 5.3 and Section 7.1, the transferred lands
shall no longer be deemed to be Covered Lands, and PALCO shall not bear any
responsibility for any management activities, nor be liable for any Take of any
Species by any other persons, on such transferred lands. In addition, PALCO will
not be required to provide any new, additional or different conservation or
mitigation on the remaining Covered Lands beyond that provided in the HCP to
account for such sale, exchange or transfer.
5.3.3 TRANSFER OF ELK RIVER PROPERTY
Notwithstanding anything in this Agreement to the contrary, PALCO may transfer
the Elk River Property from the PALCO company which acquired the Elk River
property from Elk River Timber Company to Scotia Pacific Company, LLC, upon 30
days' written notice, accompanied by the transfer documents, to the Wildlife
Agencies and CDF.
5.4. DISPOSITION OF COVERED LAND THROUGH PERMIT AMENDMENT
All dispositions of Covered Lands or interests in Covered Lands outside of MMCAs
other than those carried out in accordance with Sections 5.3 and 7.1 shall be
processed as an amendment of the Federal Permit and State Permit in accordance
with Section 7.2 of this Agreement.
5.5. DISPOSITION OF LAND IN MMCAS
PALCO may sell, exchange or otherwise transfer to a third person one or more of
the MMCAs, or a portion thereof, so long as PALCO demonstrates to the reasonable
satisfaction of the Wildlife Agencies that the protection to be afforded by such
third party (and its successors) to the marbled murrelet and the habitat of the
marbled murrelet in such MMCA(s) and to the other Covered Species is equal to or
greater than that afforded under the HCP for a period of 50 years from the
Effective Date. In such event, PALCO will not be required to provide any new,
additional or different conservation or mitigation on the remaining Covered
Lands beyond that provided for in the HCP to account for such sale, exchange or
transfer. Without limiting the generality of the foregoing, for the purposes of
this Agreement, the sale, exchange or transfer to a third party of an MMCA with
legally binding restrictions running with the land and reasonably approved by
the Wildlife Agencies, or other protection reasonably approved by the Wildlife
Agencies, which limit the uses of the MMCA proposed for transfer to those uses
specified at Section 3.1.1 of this Agreement for a period of 50 years from the
Effective Date shall be deemed to constitute protection afforded by such third
party (and its successors) that is equal to or greater than that afforded under
the HCP. In the event that PALCO sells an MMCA to an entity, the Agencies shall
not impose or require any new, additional or different terms, conditions,
conservation or mitigation
measures or other restrictions on the remaining Covered Lands beyond those
specified at Section 3.1.1. of this Agreement and Section 6 of the HCP. PALCO's
road storm proofing obligations required under the HCP with respect to the
transferred lands shall survive notwithstanding any sale, exchange or transfer
under this Section 5.5.
6. ASSURANCES
6.1. FEDERAL ASSURANCES
6.1.1. COVERED SPECIES LISTED AFTER THE EFFECTIVE DATE
Subject to compliance with all other terms of this Agreement and the HCP, the
Federal Permit shall become effective as to each Covered Species which is not a
Federal Listed Species concurrent with the listing of such species under FESA.
6.1.2. MIGRATORY BIRD TREATY ACT, BALD AND GOLDEN EAGLE PROTECTION ACT
(a) The Federal Permit shall constitute a Special Purpose Permit
under 50 CFR Section 21.27 for the take of all Covered Species
identified at 50 CFR 10. 13, excluding bald eagles (Haliaeetus
leucocephalus) and golden eagles (Aquila chrysaetos), which are
listed under the FESA as of the Effective Date (and as to
unlisted Covered Species identified at 50 CFR 10.13, when the
Federal Permit becomes effective as to such species as provided
in Section 6.1.1) in the amount and/or number and subject to the
terms and conditions specified in the Federal Permit. The Special
Purpose Permit shall be valid for a period of three years from
its effective date, provided the Federal Permit remains in effect
for such period. The Special Purpose Permit under 50 CFR Section
21.27 as described in this section shall be renewed provided that
PALCO remains in compliance with the terms of the Federal Permit
and this Agreement. Each such renewal shall be valid for the
maximum period allowable under the applicable regulations at the
time of the renewal (which, as of the Effective Date, is three
years), provided that the Federal Permit remains in effect for
such period.
(b) USFWS shall not refer the incidental take of any bald eagle or golden
eagle for prosecution under BGEPA if such take is in compliance with
the terms and conditions (including amount and/or number) specified in
the Federal Permit.
6.1.3. FURTHER PERMITS
Nothing in this Agreement will limit the right or obligation of any federal
agency to engage in consultation with USFWS and/or NMFS required under Section 7
of the FESA. However, in any consultation with regard to the Covered Species
that may be required or processed pursuant to Section 7 of FESA (16 USC Section
1536(a)) subsequent to the Effective Date in connection with the Covered
Activities, USFWS and NMFS shall, to the maximum extent permitted by law, rely
upon, and utilize their respective Section 7 biological opinions issued with
regard to the approval of the HCP, and, to the maximum extent permitted by law
and regulation, ensure that any conservation and mitigation for Incidental Take
of Covered Species identified in such Section 7 biological opinion conforms to
the conservation and mitigation provided under the HCP and does not impose any
new, additional or different conservation or mitigation measures on PALCO beyond
the requirements provided for under the HCP and this Agreement.
6.1.4. CRITICAL HABITAT
The USFWS acknowledges that pursuant to the final critical habitat rule
promulgated for the marbled murrelet and codified at 50 CFR 17.95(b), the
critical habitat designation for the marbled murrelet will not apply to any
Covered Lands for so long as the Federal Permit remains in effect. The USFWS and
NMFS further agree that they will consider the HCP in their preparation of any
proposed determination of critical habitat for any other Covered Species under
their respective jurisdictions or revision of critical habitat for the marbled
murrelet. USFWS and NMFS agree that if critical habitat is designated for any
Covered Species and PALCO is properly implementing the terms of the HCP, the
USFWS and NMFS will not require PALCO to commit new, additional or different
conservation or mitigation beyond that provided for under the HCP and this
Agreement.
6.1.5. FUTURE LISTING OF SPECIES OTHER THAN COVERED SPECIES
(a) As to each Species that is not a Covered Species that may be
affected by the Covered Activities and that is or becomes listed
under FESA, USFWS and NMFS, as appropriate, shall, upon proper
application by PALCO under Section 10(a) of the FESA and
following public review and upon a determination that the
application satisfies all applicable statutory and regulatory
requirements, issue an incidental take permit to PALCO
authorizing the take of such species incidental to the Covered
Activities.
(b) In determining whether any further conservation or mitigation measures
are required, beyond those provided pursuant to the HCP, in order to
issue such permits or other Take authorizations with
respect to such species not identified as Covered Species, USFWS and
NMFS shall (1) take into consideration the conservation and mitigation
measures provided in the HCP and hereunder and (2) cooperate with
PALCO to minimize adverse impacts of the listing of such species on
the Covered Activities consistent with Section 10 of FESA.
6.1.6. DETERMINATION OF CHANGED CIRCUMSTANCES AND UNFORESEEN CIRCUMSTANCES
6.1.6.1. PURPOSE
The purpose of this Section 6.1.6 is to apply the USFWS/NMFS Habitat
Conservation Plan Assurances ("No Surprises") Rule (the "Assurances Rule"),
published in the Federal Register on February 23, 1998 (63 Fed. Reg. 8,859)
to this Agreement and the HCP.
6.1.6.2 AVAILABILITY
The assurances made by USFWS and NMFS in this Section 6.1.6 shall apply so long
as the commitments and provisions of the HCP, this Agreement and the Federal
Permit applicable to PALCO have been and are being fully implemented by PALCO.
6.1.6.3. NO ADDITIONAL LAND, WATER OR FINANCIAL COMPENSATION
For so long as the Federal Permit is in effect, USFWS and NMFS will not require
from PALCO the commitment of additional land, water, or financial compensation
or additional restrictions on the use of land, water, or other natural resources
with regard to the Covered Species beyond the level and/or amounts allowed for
under the HCP's Operating Conservation Program and this Agreement without the
consent of PALCO. By way of example and not limitation, seasonal restrictions
more stringent than those provided for in the HCP would be considered to be an
additional restriction on the use of land. Any additional conservation or
mitigation measures required of PALCO by USFWS and/or NMFS in response to an
Unforeseen Circumstance shall comply with the Assurances Rule. (As of the
Effective Date, the Assurances Rule is published at 50 CFR Section 17.3, 50 CFR
Section 17.22(b)(5) and (6), 50 CFR Section 17.32(b)(5) and (6), 50 CFR Section
222.3, and 50 CFR Section 222.22(g) and (h) and is attached as Exhibit "D".)
6.1.6.4. CHANGED CIRCUMSTANCES
6.1.6.4.1. HCP CHANGED CIRCUMSTANCES
USFWS and NMFS agree that Attachment No. 4 to the HCP contains the complete
and exclusive list of all Changed Circumstances.
USFWS and NMFS further agree that unless PALCO otherwise consents, Attachment
No. 4 to the HCP contains the complete and exclusive list of conservation and
mitigation measures and/or planned responses that may be required of PALCO to
respond to each Changed Circumstance.
6.1.6.4.2. EFFECT OF OCCURRENCE OF A CHANGED CIRCUMSTANCE
Any party to this Agreement shall immediately notify each of the other parties
of the existence of a Changed Circumstance. Thereafter, through a Changed
Circumstance Notice, USFWS, and/or NMFS shall identify those additional
conservation and mitigation measures or the planned response provided in
Attachment No. 4 to the HCP responsive to the particular Changed Circumstance
that USFWS and/or NMFS deem necessary to respond to that Changed Circumstance.
To the extent consistent with the conservation needs of the Covered Species and
their habitats, USFWS and/or NMFS shall select those conservation and mitigation
measures from the list of available responses to such Changed Circumstances set
forth in the HCP that are least burdensome on PALCO.
PALCO shall implement the additional conservation and mitigation measures set
forth in the Notice. If PALCO does not concur with the Changed Circumstances
Notice, then PALCO and USFWS and/or NMFS, as applicable, shall utilize the
dispute resolution process set forth in Section 9.2 of this Agreement to attempt
to resolve the dispute. Until such time as the dispute resolution process is
concluded, PALCO shall implement the additional conservation and mitigation
measures set forth in the Notice. Following the conclusion of the dispute
resolution process, PALCO shall implement the conservation and mitigation
measures agreed to by the Wildlife Agencies and PALCO in the dispute resolution
process. To the extent agreement is not achieved among the Parties through the
dispute resolution process, without waiving its rights to seek judicial review
of the Wildlife Agencies' decision, PALCO shall continue to implement the
measures set forth in the Notice.
6.1.6.4.3. MEASURES LIMITED TO THOSE PROVIDED PURSUANT TO THE HCP
If additional conservation and mitigation measures are deemed necessary by USFWS
or NMFS to respond to a Changed Circumstance and such measures were not provided
pursuant to the HCP, USFWS and/or NMFS will not require any new, additional or
different conservation and/or mitigation measures from PALCO in addition to
those provided for pursuant to the HCP without the consent of PALCO.
6.1.6.5. UNFORESEEN CIRCUMSTANCES
6.1.6.5.1 FINDING OF UNFORESEEN CIRCUMSTANCES
The Regional Director of USFWS and/or the Regional Administrator of NMFS, as
appropriate, have the burden of making a finding that Unforeseen Circumstances
exist with regard to any Covered Species within the jurisdiction of the
respective agency using the best scientific and commercial data available. The
findings must be clearly documented and based upon reliable technical
information regarding the status and habitat requirements of the affected
Covered Species. USFWS and NMFS must consider, but are not limited to, the
following factors in making such finding of Unforeseen Circumstances:
(i) The size of the current range of the affected Covered Species
(ii) The percentage of the range of the affected Covered Species that has
been adversely affected by the activities permitted by the HCP
(iii) The percentage of the range of the affected Covered Species that has
been conserved by the HCP
(iv) The ecological significance of that portion of the range of the
affected Covered Species affected by the HCP
(v) The level of knowledge about the affected Covered Species and the
degree of specificity of the Covered Species' conservation program
under the HCP
(vi) Whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected Covered Species in the wild
Upon making a finding of Unforeseen Circumstances in accordance with this
paragraph, USFWS or NMFS, as applicable, shall determine whether additional
conservation and mitigation measures are necessary to respond to the Unforeseen
Circumstances.
6.1.6.5.2. EFFECT OF FINDING OF UNFORESEEN CIRCUMSTANCES
Upon a finding of Unforeseen Circumstances and a determination that additional
conservation and mitigation measures are necessary to respond to such Unforeseen
Circumstances, made in the manner set forth in Section 6.1.6.5.1 above, USFWS
and/or NMFS as appropriate shall limit such
additional conservation and mitigation measures required of PALCO to
modifications of activities within the Conserved Habitat Areas, and
modifications to the Operating Conservation Program for the affected Covered
Species. USFWS and/or NMFS as appropriate shall maintain the original terms of
the HCP to the maximum extent possible.
Any additional conservation and/or mitigation measures specified pursuant to
Section 6.1.6.5 shall not require the commitment by PALCO of additional land,
water or financial compensation or additional restrictions on the use of land,
water or other natural resources in conflict with Section 6.1.6.3 without the
consent of PALCO.
PALCO shall cooperate with USFWS and/or NMFS, as appropriate, in that Service's
activities with regard to the conservation and/or preservation of the affected
Covered Species.
6.1.6.6. DISTRIBUTION OF BURDEN AFTER FINDING OF UNFORESEEN CIRCUMSTANCES
The Services recognize that they bear a primary responsibility to utilize their
authorities and resources to protect Covered Species in the event of a finding
of Unforeseen Circumstances with regard to a Covered Species. The Services
further recognize that they have significant resources and authorities that can
be utilized to provide additional protection to Covered Species, including, but
not limited to, land acquisition and exchange, habitat restoration and
enhancement, translocation, and other management techniques beyond the
protections provided in the HCP. The Services will work with other Federal,
State, and local agencies, tribes, environmental groups, and private entities to
ensure the continued conservation of the Covered Species in the wild in the
event of a finding of Unforeseen Circumstances.
6.2. STATE ASSURANCES
6.2.1 COVERED SPECIES LISTED AFTER THE EFFECTIVE DATE
Subject to compliance with all other terms of this Agreement and the HCP, the
State Permit shall become effective as to each Covered Species which is not a
State Listed Species concurrent with the regulation of such species under CESA.
6.2.2. FUTURE REGULATION OF SPECIES OTHER THAN COVERED SPECIES
(a) As to each Species that is not a Covered Species, that may be affected
by the Covered Activities and that is or becomes listed or a candidate
for listing under CESA, CDFG shall, upon proper
application by PALCO under Section 2081(b) of the CESA and following
any required public and/or environmental review and a determination
that the application satisfies all applicable statutory and regulatory
requirements, issue an incidental take permit to PALCO authorizing the
Take of such species incidental to the Covered Activities.
(b) In determining whether further conservation or mitigation
measures beyond those provided for pursuant to the HCP are
required in order to issue such Section 2081(b) permits, or
other Take authorizations with respect to such species not
identified as Covered Species, CDFG shall (1) take into
consideration the conservation and mitigation measures provided
pursuant to the HCP and (2) cooperate with PALCO to minimize to
the greatest extent possible adverse impacts of the listing or
candidacy for listing of such species on the Covered Activities
consistent with the requirements of Section 2081(b).
6.2.3 CHANGED CIRCUMSTANCES AND UNFORESEEN CIRCUMSTANCES
6.2.3.1 PURPOSE
The purpose of this Section 6.2.3 is to provide PALCO "No Surprises" like
assurances consistent with CDFG regulations given the conservation and
mitigation measures provided pursuant to the HCP and other relevant factors.
(These regulations are currently published at CCR, t.14, Section 783.0 and are
attached hereto as Exhibit E.)
CDFG may require additional conservation and mitigation measures of PALCO, as
enumerated in Attachment No. 4 to the HCP, in response to Changed Circumstances
that affect the Covered Species under the State Permit.
6.2.3.2 HCP CHANGED CIRCUMSTANCES
CDFG agrees that Attachment No. 4 to the HCP contains the complete and exclusive
list of all Changed Circumstances. CDFG further agrees that unless PALCO
otherwise consents, Attachment No. 4 to the HCP contains the complete and
exclusive list of conservation and mitigation measures and planned response that
may be required of PALCO to respond to each Changed Circumstance.
6.2.3.2.1 EFFECT OF THE OCCURRENCE OF A CHANGED CIRCUMSTANCE
Any party to this Agreement shall immediately notify each of the other
parties of the existence of a Changed Circumstance. Thereafter, through a
Changed Circumstances Notice, CDFG shall identify those additional conservation
and mitigation measures or the planned response provided pursuant to Attachment
No. 4 to the HCP responsive to the particular Changed Circumstance that CDFG
deems necessary to respond to that Changed Circumstance. To the extent
consistent with the conservation needs of the Covered Species and their
habitats, CDFG shall select those conservation and mitigation measures from the
list of available responses to such Changed Circumstance set forth in the HCP
that are least burdensome on PALCO.
PALCO shall implement the additional conservation and mitigation measures set
forth in the Notice upon receipt of the Notice. If PALCO does not concur with
the Changed Circumstance Notice, then PALCO and CDFG shall utilize the dispute
resolution process set forth in Section 9.2 of this Agreement to attempt to
resolve the dispute. Until such time as the dispute resolution process is
concluded, PALCO shall implement the additional conservation and mitigation
measures set forth in the Notice. Following conclusion of the dispute resolution
process, PALCO shall implement the conservation and mitigation measures except
as otherwise agreed to by the Wildlife Agencies and PALCO in the dispute
resolution process. To the extent agreement is not achieved among the parties
through the dispute resolution process, without waiving its right to seek
judicial review of the Wildlife Agencies' decision, PALCO shall continue to
implement the conservation and mitigation measures set forth in the Notice.
6.2.3.2.2 MEASURES LIMITED TO THOSE PROVIDED PURSUANT TO THE HCP
If additional conservation and mitigation measures are deemed necessary by CDFG
to respond to a Changed Circumstance and such measures were not provided for
pursuant to the HCP, CDFG will not require any new, additional or different
conservation and/or mitigation measures from PALCO in addition to those provided
for pursuant to the HCP without the consent of PALCO.
6.2.3.2.3 CONSULTATION WITH SERVICES
If the Changed Circumstances affects a Covered Species under the State Permit
that is also a Covered Species under the Federal Permit, the CDFG shall consult
with USFWS and/or NMFS, as appropriate.
6.2.3.3 UNFORESEEN CIRCUMSTANCES
6.2.3.3.1 FINDING OF UNFORESEEN CIRCUMSTANCES
The Director or such other person he or she specifically designates has the
burden of making a finding that Unforeseen Circumstances exist with regard
to any Covered Species within the jurisdiction of CDFG using the best scientific
and commercial data available. The findings must be clearly documented and based
upon reliable technical information regarding the status and habitat
requirements of the affected Covered Species. CDFG must consider, but is not
limited to, the following factors in making such finding of Unforeseen
Circumstances:
(i) The size of the current range of the affected Covered Species
(ii) The percentage of the range of the affected Covered Species that has
been adversely affected by the activities permitted by the HCP
(iii) The percentage of the range of the affected Covered Species that has
been conserved by the HCP
(iv) The ecological significance of that portion of the range of the
affected Covered Species affected by the HCP
(v) The level of knowledge about the affected Covered Species and the
degree of specificity of the Covered Species' conservation program
under the HCP
(vi) Whether failure to adopt additional conservation measures would
appreciably reduce the likelihood of survival and recovery of the
affected Covered Species in the wild
Upon making a finding of Unforeseen Circumstances in accordance with this
paragraph, CDFG shall determine whether additional conservation and mitigation
measures are necessary to respond to the Unforeseen Circumstances.
6.2.3.3.2 EFFECT OF FINDING OF UNFORESEEN CIRCUMSTANCES
Upon a finding of Unforeseen Circumstances and a determination that additional
conservation and mitigation measures are necessary to respond to such Unforeseen
Circumstances, made in the manner set forth in Section 6.2.3.3.1 above, CDFG
shall limit such additional conservation and mitigation measures required of
PALCO to modifications of activities within the Conserved Habitat Areas and
modifications to the Operating Conservation Program for the affected Covered
Species. CDFG shall maintain the original terms of the HCP to the maximum extent
possible.
For so long as the State Permit is in effect, any additional conservation
and mitigation measures specified pursuant to Section 6.2.3. shall not
require the commitment by PALCO of additional land, water or financial
compensation or additional restrictions on the use of land, water or other
natural resources without the consent of PALCO, except as required by law.
PALCO shall cooperate with CDFG in its activities with regard to the
conservation and/or preservation of the affected Covered Species.
6.2.4 FULLY PROTECTED SPECIES STATUTES
(a) CDFG acknowledges and agrees that if the measures set forth in the HCP
are fully complied with, the Covered Activities will not likely result
in Take of Fully Protected Species.
(b) Notwithstanding subsection (a), if CDFG discovers that such
measures are not adequate to prevent Take of a Fully Protected
Species, CDFG shall notify PALCO in writing of such discovery and
of any new, additional or different conservation and mitigation
measures that are necessary to avoid Take of Fully Protected
Species. CDFG shall have the burden of demonstrating that the
measures in the HCP are not adequate to avoid Take. Upon receipt
of such notice, PALCO shall conduct its Covered Activities in a
manner that will avoid such Take. PALCO may implement such new,
additional or different conservation and mitigation measures set
forth in CDFG's notification or other adequate measures agreed to
by the Parties to avoid such Take.
(c) If at any time there is a change of law such that CDFG may issue a
State Permit allowing the Incidental Take of any Fully Protected
Species, CDFG may, at its own discretion and if appropriate, amend the
existing State Permit or issue a new State Permit for Fully Protected
Species under the same terms and conditions as the State Permit to
authorize the Take of Fully Protected Species to the extent permitted
by law.
6.3 JOINT ASSURANCES
6.3.1. COMPLIANCE WITH APPLICABLE LAWS
A primary purpose of this Agreement is to provide the long-term reconciliation
of the Covered Activities on the PALCO Lands and Additional Lands with the
conservation and protection of Covered Species. Based on and in consideration of
this Agreement, CDF and the Wildlife Agencies hereby agree and assure PALCO that
for so long as PALCO complies with the terms and conditions of the Federal
Permit and the State Permit and this Agreement:
(a) CDFG shall, to the maximum extent permitted by law, not recommend
or require that PALCO provide new, additional or different
conservation or mitigation for Take of Covered Species by Covered
Activities on the Covered Lands beyond that required pursuant to
the HCP and this Agreement, with regard to CDFG's authorities
under, the following statutes: CESA, CEQA, the ▇▇▇▇▇▇-Cologne
Act, the Forest Practice Act, the Timberland Productivity Act of
1982, Fish and Game Code Sections 1802, and 3511, and Fish
and Game Code Section 1603 for those Covered Activities subject
to and carried out in accordance with the terms of the Streambed
Alteration Agreement incorporated into the HCP for so long as the
Streambed Alteration Agreement is in effect.
(b) CDF acknowledges and agrees that the Wildlife Agencies have
primary jurisdiction and responsibility for the protection of the
Covered Species, and that the HCP, as developed by the Wildlife
Agencies and PALCO and in consultation with CDF, will minimize
and fully mitigate the Take of Covered Species by the Covered
Activities within the Plan Area in accordance with CEQA and CESA.
CDF will use the SYP, a component of which is the HCP and the
EIS/EIR prepared for the HCP and SYP as program level documents
for tiering with later individual Timber Harvest Plans when CDF
exercises its responsibilities under the Forest Practice Act and
CEQA. CDF may suggest additional conservation measures for Take
of Covered Species only when necessary for compliance with CEQA,
the Forest Practice Act, or any other law. Any additional
conservation measures shall, to the maximum extent practicable,
be consistent with the HCP, this Agreement, and the Federal
Permit and the State Permit.
(c) USFWS and NMFS shall, to the maximum extent permitted by law, not
recommend or require that PALCO provide new, additional or
different conservation or mitigation for Take of the Covered
Species from Covered Activities on the Covered Land beyond that
required pursuant to the HCP, and this Agreement and the Federal
Permit, with regard to any Service's authorities under the
following statutes: FESA NEPA, Fish and Wildlife Coordination Act
(16 USC Sections 661-661c), the Fish and Wildlife Act of 1956 (16
USC Section 742a), and the Federal Water Pollution Control Act
(33 USC Section 1251 et seq.).
6.4. PALCO ASSURANCES
6.4.1. CONTROL AND OWNERSHIP OF SUBSIDIARY PALCO ENTITIES
As of the Effective Date, Scotia Pacific Company, LLC and Salmon Creek
Corporation are wholly owned subsidiaries of The Pacific Lumber Company. Each of
Scotia Pacific Company LLC, Salmon Creek Corporation and The Pacific Lumber
Company are separate entities with their own assets and liabilities.
During the term of the Federal Permit and State Permit, Scotia Pacific Company,
LLC, and Salmon Creek Corporation, and their successors and affiliates, each
authorize The Pacific Lumber Company to administer the HCP on its behalf,
including preparing and filing reports and communicating with the Wildlife
Agencies to The Pacific Lumber Company.
Scotia Pacific Company, LLC, Salmon Creek Corporation and The Pacific Lumber
Company each acknowledge that the HCP addresses, among other things,
conservation and protection of Covered Species on the Covered Lands owned by
each of them, and that a failure of any of the companies to carry out any of its
obligations under the HCP may affect the viability of the entire HCP. Each PALCO
entity shall carry out each obligation contained in this Agreement, the HCP and
the Federal and State Permits; provided that this provision shall not require
duplication by PALCO entities, and if an obligation is performed by one or more
PALCO entities, the remaining PALCO entity or entities shall not be required to
perform the same obligation. Each such obligation shall be the individual
obligation of each PALCO entity. Consistent with the individual nature of such
obligations, notwithstanding any other provision of this Agreement, no PALCO
entity shall be liable for the payment obligations of any other PALCO entity
under this Agreement, the HCP, or the Federal and State Permits. Each of the
PALCO entities shall carry out its obligations under this Agreement, the HCP,
the Federal Permit and the State Permit for the term of the Federal Permit and
State Permit or, if either the Federal Permit or State Permit is sooner
relinquished or revoked, unless and until its obligations under Section 8.5 of
this Agreement to fully mitigate for the impacts of Take of Covered Species are
met. In the event of any breach by any PALCO entity with regard to its
obligations under this Agreement, the HCP, or the Federal or State Permits, the
Federal and/or State Permits may be suspended or revoked as to all PALCO
entities, in accordance with the provisions of Sections 8.2 and 8.3 of this
Agreement.
7. HCP/PERMIT MODIFICATIONS AND AMENDMENTS
7.1. MINOR MODIFICATION OF HCP AND/OR THIS AGREEMENT
7.1.1. PROCESSING MINOR MODIFICATIONS
Any Party may propose minor modifications to the HCP or this Agreement by
providing written notice to all other Parties. Such notice shall include a
statement of the reason for the proposed modification and an analysis of its
environmental effects, including any effects on operations under the HCP and on
Covered Species. The Parties will use reasonable efforts to respond to proposed
modifications within 60 days of receipt of such notice. Proposed modifications
will become effective only upon all other Parties' written approval. If, for any
reason, a receiving party objects to a proposed modification, the proposed
modification must be processed as an amendment of the permit in accordance with
Section 7.2 of this Agreement.
The Wildlife Agencies will not propose or approve minor modifications to the HCP
or this Agreement if the Wildlife Agencies determine that such modifications
would result in operations under the HCP that are significantly different from
those analyzed in connection with the original HCP, adverse effects on the
environment that are new or significantly different from those analyzed in
connection with the original HCP, or additional Take not analyzed in connection
with the original HCP.
7.1.2. SCOPE OF MINOR MODIFICATIONS
Minor modifications to the HCP and this Agreement processed pursuant to this
subsection may include but are not limited to the following:
(i) Corrections of typographical, grammatical, and similar editing errors
in the HCP and this Agreement that do not change the intended
meaning;
(ii) Correction of any maps or exhibits to correct errors in mapping;
(iii) Minor changes to survey, monitoring or reporting protocols;
(iv) Additions and disposals of Covered Lands in accordance with Sections
5.2, 5.3, and 5.5; and
(v) Correction of any maps or exhibits to reflect previously approved
modifications to the HCP or amendments to the permit.
All proposed modifications, other than minor modifications, shall be processed
as permit amendments pursuant to Section 7.2 of this Agreement.
7.2. PERMIT AMENDMENT
7.2.1. GENERAL FEDERAL PERMIT AMENDMENT PROCESS
Upon receipt of a written request from PALCO accompanied by a full written
justification and supporting information and all other information required by
law, USFWS and NMFS shall use their reasonable efforts to process the proposed
amendment within one hundred and eighty (180) days of submission of the complete
application for such amendment to the applicable Service, except where longer
time periods are required by law. Any decision of USFWS and NMFS approving or
rejecting a requested amendment will be based on relevant information including,
but not limited to, the evidence and science existing at the time of the
decisions and will constitute final agency action.
USFWS shall interpret its authority under 50 CFR Section 13.23(b) to amend the
USFWS Federal Permit consistent with the assurances provided under 50 CFR
Section 17.22(b)(5) and 17.32(b)(5).
7.2.2. GENERAL STATE PERMIT/STREAMBED ALTERATION AGREEMENT
AMENDMENT PROCESS
Amendment of the State Permit, including minor and major amendments, shall be
governed by applicable state regulations. (These regulations are currently
published at CCR, t.14, Section 783.6(c) and are attached hereto in Exhibit E.)
In accordance with these regulations, minor permit amendments shall be approved
and incorporated into the State Permit, or denied, by the CDFG Director within
60 days of PALCO's submission of a request for amendment. Also in accordance
with these regulations, requests for major permit amendments shall be reviewed
according to the process established in such regulations for initial permit
applications, except that the information and analysis provided in support of an
application for a major permit amendment may rely on and supplement the
information and analysis used in the initial permit application.
CDFG and PALCO may amend the Streambed Alteration Agreement at any time by
mutual consent of PALCO and CDFG.
7.2.3. AMENDMENT OF THE PERMIT TO ALLOW COVERED ACTIVITIES WITHIN MMCAS
Concurrent with the first and second decennial reviews of the SYP, the Parties
shall confer to review progress towards the achievement of the delisting
criteria (excluding marine management criteria) contained in the Murrelet
Recovery Plan in existence at the time of each review. If PALCO concludes that
the delisting criteria (excluding marine management criteria) contained in the
Murrelet Recovery Plan as it then exists have been met, PALCO may apply for an
amendment to the Federal Permit and State Permit to allow harvest activities
within one or more of the MMCAs. The Wildlife Agencies shall process such
application in accordance with the time frames set forth in Sections 7.2.1 and
7.2.2 of this Agreement, to the
extent feasible, and shall approve such amendment if the Wildlife Agencies
determine, after complying with the FESA, NEPA, CESA, CEQA and other applicable
law, (i) that all delisting criteria have been met, independent of the
conservation benefits provided by the MMCA and/or MMCAs which is the subject of
the amendment applied for, and (ii) that such amendment is otherwise consistent
with the terms of the HCP and this Agreement and meets all other applicable
statutory and regulatory requirements.
7.2.4 COMPLIANCE WITH AB 1986
Notwithstanding any other provision of this Agreement, including without
limitation Section 7.2.3, the Federal Permit, the State Permit, this Agreement
and the HCP may be amended only to the extent not in conflict with AB 1986,
which is attached hereto as Exhibit F.
8. ORIGINAL TERM; SUSPENSION AND/OR REVOCATION; RELINQUISHMENT;
EXTENSION; FULL MITIGATION OBLIGATION
8.1. ORIGINAL TENN
This Agreement and the HCP will become effective on the earliest date that the
Federal Permit and State Permit are issued. The HCP, the Federal Permit and the
State Permit will remain in effect for a period of 50 years from issuance of the
original Federal Permit and State Permit except as provided in this Section 8.
8.2. FEDERAL PERMIT SUSPENSION AND REVOCATION
USFWS and NMFS may suspend and/or revoke the Federal Permit only for cause and
in accordance with regulations in force at the time of such suspension or
revocation. (As of the Effective Date, these regulations are codified at 50 CFR
Sections 13.27 through 13.29, and 222.27, and 15 CFR Part 904.) Any specific
decision or order suspending the Federal Permit shall specify either a date or
the fulfillment of a condition or conditions on which the suspension will
terminate. In the event a suspension has not terminated within one year of its
effective date, at PALCO's request the applicable Service shall within 90 days
either terminate the suspension or commence a proceeding to revoke the permit.
Such suspension or revocation may apply to the entire Federal Permit, or may
apply only to specified Covered Species, Covered Lands, or Covered Activities.
During the period of suspension, PALCO shall remain obligated to perform its
obligations under the Operating Conservation Program.
NMFS shall revoke and/or suspend the Federal Permit only after an
adjudicatory process conducted essentially in the manner set forth at 15 Code of
Federal Regulations Part 904 effective as of the Effective Date, a copy of which
is attached as Exhibit "C."
Notwithstanding revocation, PALCO shall remain obligated to mitigate for the
impacts of all Take that occurred under the Federal Permit prior to its
revocation in accordance with Section 6 of the HCP, pursuant to Section 8.5 of
this Agreement. Upon completing its full mitigation obligation set forth in
Section 8.5 of this Agreement, PALCO shall have no further obligations under the
Federal Permit.
8.3. STATE PERMIT SUSPENSION AND REVOCATION
Suspension and revocation of the State Permit shall be governed by applicable
regulations. (These regulations are currently published at CCR, t.14, Section
783.7. and are attached hereto in Exhibit E.) In accordance with these
regulations, CDFG may suspend or revoke the State Permit only pursuant to the
following administrative process. Any action to suspend or revoke any privileges
under the State Permit shall be limited so as to address the discrete action or
inaction that has resulted in the suspension or revocation, to the extent
consistent with the species protection purposes of the State Permit. As such,
suspension or revocation may apply to the entire State Permit, or may apply only
to the specified Covered Species, Covered Lands, or Covered Activities. PALCO
shall be notified in writing of any proposed suspension or revocation in
accordance with the regulations. Such notice shall identify the reason(s) for
such suspension or revocation, the actions necessary to correct the
deficiencies, and inform PALCO of the right to object to the proposed suspension
or revocation. Such notice may be amended at any time by CDFG. In accordance
with the regulations, PALCO may file a written objection to the proposed action
within 45 calendar days of the date of CDFG's notice. A decision on the proposed
suspension or revocation shall be made within 45 days after the end of the
objection period. CDFG shall notify PALCO in writing of the Director's decision
and the reasons therefor. CDFG shall also provide PALCO with information
concerning the right to request reconsideration. The State Permit may not be
revoked unless it has first been suspended. The State Permit shall remain valid
and effective pending any final determination on suspension, except that it may
be suspended immediately if statutory enactment subsequent to the issuance of
the State Permit prohibits continuation of the State Permit or a Covered
Activity. Suspension or revocation of the State Permit or Covered Activities
subject to the Streambed Alteration Agreement may also constitute suspension or
cancellation of the Streambed Alteration Agreement or specified Covered Species,
Covered Lands or Covered Activities subject to the Streambed Alteration
Agreement, as applicable.
Notwithstanding suspension and/or revocation, PALCO shall remain obligated to
mitigate for the impacts of Take that occurred under the State Permit prior to
its suspension and/or revocation, pursuant to Section 8.5 of this Agreement.
Upon completing its full mitigation obligation set forth in Section 8.5 of this
Agreement, PALCO shall have no further obligations under the State Permit.
8.3.1 SUSPENSION
In accordance with applicable regulations, including the procedures described in
Section 8.3. above, CDFG may suspend the State Permit at any time if PALCO is
not in compliance with the conditions of the State Permit, which includes the
HCP. During the period of suspension, PALCO shall remain obligated to carry out
its obligations under the Operating Conservation Program.
8.3.1.1 REINSTATEMENT OF STATE PERMIT AFTER SUSPENSION
In accordance with applicable regulations, including the procedures described in
Section 8.3. above, if PALCO corrects the deficiencies that were the cause of
suspension within 60 days of written notification of the Director's decision to
suspend the State Permit, the State Permit shall be reinstated.
8.3.2 REVOCATION
In accordance with applicable regulations, including the procedures described in
Section 8.3. above, the Director may begin procedures to revoke the State Permit
if PALCO fails within 60 days of written notification of the Director's decision
to suspend the State Permit to correct the deficiencies that were the cause of
the suspension, or if statutory enactments subsequent to the issuance of the
State Permit prohibit the continuation of the State Permit or a Covered
Activity.
8.3.2.1. RECONSIDERATION OF SUSPENSION OR REVOCATION OF STATE PERMIT
In accordance with applicable regulations, PALCO may request reconsideration of
a suspension or revocation of the State Permit. The request for reconsideration
must be received by the Regional Manager of Region I within 30 days of the date
of notification of the decision for which reconsideration is requested. CDFG
shall notify PALCO of its decision in writing within 45 days of the receipt of
the request for reconsideration. Such decision may be appealed to the Director
within 30 days of the date of notification of the decision on the request for
reconsideration. The Director's decision on appeal shall be made within 30
calendar days of receipt of the appeal, unless such time is extended for one
additional 30-day period for good cause and PALCO is notified of the extension.
The Director's decision on appeal shall constitute the final administrative
decision of CDFG.
8.3.3 MITIGATION OBLIGATIONS
Notwithstanding any suspension or revocation, PALCO shall remain obligated to
mitigate for the impacts of all Take that occurred prior to the State Permit's
suspension or revocation, pursuant to Section 8.5 of this Agreement, unless CDFG
determines that PALCO has already satisfied such obligation.
8.4. PERMIT RELINQUISHMENT BY PALCO
PALCO may relinquish the Federal Permit and/or the State Permit in accordance
with the regulations of the applicable Wildlife Agency in force on the date of
such relinquishment. (The regulations applicable to relinquishing the Federal
Permit are codified as of the Effective Date at 50 CFR Sections 13.26 and
220.31.)
Any relinquishment of the State Permit shall also constitute a termination of
the Streambed Alteration Agreement.
Notwithstanding its relinquishment of either the USFWS or the NMFS Federal
Permit or State Permit, PALCO shall remain obligated to fully mitigate in
accordance with Section 8.5 of this Agreement for the impacts of all Take that
occurred under the relinquished permit prior to its relinquishment. Upon
completing its full mitigation obligation in Section 8.5 of this Agreement,
PALCO shall have no further obligations under the HCP, the Federal or State
Permits or this Agreement.
8.5. FULL MITIGATION UPON RELINQUISHMENT OR REVOCATION
8.5.1. OBLIGATION
In the event of relinquishment or revocation of either the USFWS Federal Permit
or the NMFS Federal Permit, or the State Permit, PALCO's obligations under this
Agreement and the HCP will continue until or unless the Wildlife Agencies
determine, in accordance with Section 8.5.2 of this Agreement, that all Take of
Covered Species that occurred under the affected Federal Permit and State Permit
has been fully mitigated. Unlisted Covered Species will be treated as though
they were listed species in determining the amount of past take and the
mitigation required.
8.5.2. DETERMINATION OF FULL MITIGATION
In determining full mitigation for the impacts of Take of the Covered Species,
the applicable Wildlife Agency will compare the amount and impact of Take of the
Covered Species that has occurred prior to termination with the amount and
effect of mitigation that has been provided up to that time. This analysis will
take into consideration, among other factors, the duration the permit has been
in effect; the location, quantity and quality of habitat of Covered Species that
has been modified and preserved; size and contiguity values; landscape linkages
and corridors; shape values and edge effects; and unique special features; and,
with respect to the marbled murrelet, the extent to which habitat conditions
have improved within the residual old growth stands within the MMCAs. The
applicable Wildlife Agency will determine the overall improvement of the
landscape (for avian and terrestrial species) and the overall improvements in
each watershed (for aquatic species), including achievement of properly
functioning conditions, if this has happened. Where it has not, the applicable
Wildlife Agency will determine progress toward such conditions in terms of
improvement over the original baseline condition as determined through surveys
and the watershed analysis process.
The period to complete full mitigation will not extend beyond the original term
of the permit for Covered Lands included in the Permits as of the Effective
Date, and with respect to Additional Lands which become Covered Lands during the
permit term, the time to complete full mitigation will not extend beyond a
period of 50 years from the date the Additional Lands first were included as
Covered Lands.
In the event of early termination of any Permit covering aquatic species, PALCO
will, in the manner set forth in Section 6.3 of the HCP, complete its road storm
proofing obligation, and will continue to implement the riparian harvest
prescriptions set forth in the HCP unless and until the impacts of Take of the
Covered Species which have occurred up to the time of termination have been
fully mitigated.
PALCO will continue to implement the requirements of the Northern Spotted Owl
Habitat Conservation Plan for the remaining term of the affected permits unless
the applicable Wildlife Agency determines that Take of northern spotted owl has
been fully mitigated. If actual northern spotted owl habitat conditions and
northern spotted owl population levels at the permit termination date exceed
those projected to occur at the end of the 50-year permit, then Take of northern
spotted owl will be deemed fully mitigated.
In determining the extent of any mitigation which may be required of PALCO
pursuant to Section 8.5.1 of this Agreement, the applicable Wildlife Agency will
take into account the biological value to the Covered Species provided by the
Headwaters Reserve, unless the Federal or State Permit is relinquished by PALCO,
or is revoked by the applicable Wildlife Agency pursuant to Section 8.2 of this
Agreement as a result of a material and uncorrected breach by PALCO of its
obligations under the revoked Permit, in which event the biological value of the
Headwaters Reserve will not be taken into account.
For purposes of this section, a breach shall be deemed corrected if it is
capable of being corrected during the life of the Permit and (1) the breach is
corrected to the reasonable satisfaction of the applicable Wildlife Agency as
soon as practicable, or (2) if such breach is not capable of immediate
correction, it is corrected to the reasonable satisfaction of the applicable
Wildlife Agency as soon as practicable following notice and request to cure.
8.5.3. CONVEYANCE OF INTEREST IN LAND UNTIL FULL MITIGATION REACHED
Upon a determination pursuant to Sections 8.5.1 and 8.5.2 of this Agreement that
PALCO must restrict and/or carry out activities on the Covered Lands for a term
of years in order to satisfy the full mitigation obligation, PALCO, prior to the
effective date of such relinquishment and within 15 days following a final
administrative determination by USFWS to revoke the USFWS Federal Permit, NMFS
to revoke the NMFS Federal Permit or CDFG to revoke the State Permit, shall
execute and record a binding covenant running with the land, in form and content
acceptable to the Wildlife Agencies that shall commit PALCO, its successors and
assigns, to restrict and/or carry out, as appropriate, those activities on those
Covered Lands required to mitigate fully for the impacts of the Take of Covered
Species that occurred under the Federal Permit and State Permit. The covenant
shall specify the duration of PALCO's full mitigation obligation, if any, which
in no event shall extend beyond the termination date of the original 50- year
Federal Permit and State permit for all Covered Lands owned by PALCO as of the
Effective Date, and for the Additional Lands described in Section 5.2, a period
no longer than 50 years from the date the Additional Lands become Covered Lands.
The covenant shall name USFWS, NMFS and CDFG as parties with a right to enforce
the terms of the covenant.
8.5.4. TERMINATION OF HCP OBLIGATIONS
Following Federal Permit or State Permit revocation or relinquishment, upon
receipt of written concurrence from the Wildlife Agencies that it has satisfied
its full mitigation obligation, PALCO shall have no further obligations under
the HCP, the Federal Permit or State Permit or this
Agreement, and the Wildlife Agencies shall within 30 days record a release of
covenant.
8.6. NON-SUBSTANTIVE BREACHES; NOTICE; WAIVER
So long as PALCO cures, or commences to cure as set forth below in this section,
any non-substantive breach, the Wildlife Agencies will not use the occurrence of
such breach as a basis for revoking or suspending the Federal Permit and/or the
State Permit, or of waiving the Assurances Rule.
Before commencing any proceeding to revoke or suspend the Federal Permit and/or
the State Permit, and before asserting based on a non-substantive breach that
PALCO is not "fully implementing" the terms of this Agreement and/or the HCP
with regard to the Assurances Rule, the Wildlife Agencies shall provide PALCO
written notice of the non-substantive breach with supporting documentation
adequate to allow PALCO to determine the nature and extent of the breach. So
long as PALCO cures, or commences to cure, the breach within 15 days of receipt
of notice, and for those breaches which cannot be cured within such 15-day
period completes curing the breach within 60 days, the Wildlife Agencies shall
accept the cure and waive the breach.
By way of example and not limitation, failure to provide any report on the date
such report is to be delivered to the Wildlife Agencies constitutes a
non-substantive breach for the purposes of this section.
9. REMEDIES, ENFORCEMENT AND DISPUTE RESOLUTION
9.1. REMEDIES
Each party shall have all remedies available in equity to enforce this
Agreement, the Federal Permit, the State Permit and the HCP.
(a) No Party shall be liable in damages to any other Party or other person
for any breach of this Agreement, any performance or failure to
perform a mandatory or discretionary obligation imposed by this
Agreement or any other cause of action arising from this Agreement.
Notwithstanding the foregoing sentence:
(i) Retention of Liability. Each Party shall retain whatever
liability it would possess for its present and future acts or
failure to act without existence of this Agreement.
(ii) Landowner Liability. Each Party shall retain whatever liability
it possesses as an owner of interests in land.
(iii) Enforcement Authority of Federal and State Governments. Nothing
contained in this Agreement is intended to limit the authority
of the United States government or the State of California to
seek civil or criminal penalties or otherwise fulfill its
enforcement responsibilities under FESA, CESA, or other
applicable Federal or state law. For purposes of applying the
penalty provisions of the FESA and other Federal law, and CESA
and other State law, each instance of harvest, destruction, or
cutting of a single merchantable viable tree (8 inches or larger
dbh) in violation of the terms and conditions of the Federal
Permit shall be deemed a separate violation of such permit, the
FESA and the FESA's implementing regulations and each instance
of harvest, destruction, or cutting of a single commercially
viable tree in violation of the terms and conditions of the
State Permit and/or THP shall be deemed a separate violation of
such permit and/or THP, the CESA, CESA's implementing
regulations, and other applicable State law.
(b) Injunctive and Temporary Relief. The Parties acknowledge that
injunctive and temporary relief may be appropriate to ensure
compliance with the terms of this Agreement.
(c) PALCO, CDFG and CDF acknowledge that specific provisions have
been included in the HCP and IA in order to meet the conditions
specified in AB 1986. These conditions include, among others,
those relating to buffers on class I and class II watercourses;
other restrictions relating to class I, class II, and class III
watercourses; implementation of the watershed analysis process;
prohibitions on activities within areas designated as MMCAs'
conditions on road-related activities; and the consistency of
timber harvesting plans submitted by PALCO with the HCP.
Violation of any of these provisions will subject PALCO to all
the remedies and enforcement mechanisms available to CDFG, CDF
and the State of California, including those set forth in this
Agreement and those provided by applicable statutes and
regulations. Such remedies and enforcement mechanisms include,
without limitation, suspension and revocation of the State Permit
by CDFG (IA Section 8.3); the imposition of civil and criminal
penalties under the California Fish and Game Code, actions for
unfair business practices, including disgorgement of profits plus
imposition of civil penalties, under Section 17200 et seq. of the
California Business and Professions Code; misdemeanor
prosecutions under the FPA; a suspension of revocation of PALCO's
timber operations license; and action against the professional
registration of any individual registered professional forester
involved with a violation. Any violation of provisions related to AB
1986 will also subject PALCO to the remedies and enforcement
mechanisms available to the United States and the federal Wildlife
Agencies under the ESA and other applicable federal law.
9.2. DISPUTE RESOLUTION
The Parties recognize that disputes concerning implementation of this Agreement,
the HCP, the Federal Permit and/or State Permit may arise from time to time. The
Parties agree to work together in good faith to resolve such disputes using the
dispute resolution procedures set forth in this section or such other procedures
upon which the Parties may later agree. However, if at any time any Party
determines that circumstances so warrant, it may seek any available
administrative or judicial remedy without regard to the dispute resolution
procedures described in this Section 9.2.
Unless the Parties agree in writing upon another dispute resolution process or
unless a Party has initiated an administrative or judicial process related to
the subject of the dispute, and except where other procedures are otherwise
provided for by this Agreement (e.g., Section 3.3.1 relating to the watershed
analysis process), the Parties shall use the following process to attempt to
resolve the disputes.
9.2.1 MEET AND CONFER
(a) Prior to taking an action that would restrict the Covered Activities,
or the scope of any Covered Activity, under the Permit(s), the Agency
proposing to take the action will provide notice of the proposed
action to PALCO. Unless otherwise agreed to by the Parties, at the
request of PALCO, the Parties shall meet and confer with regard to the
subject of the notice within 10 calendar days of such notice.
(b) PALCO may, at any time, elevate the dispute to the USFWS Regional
Director, NMFS Regional Administrator, CDFG Director, or CDF Director,
as applicable.
(c) The requirement that the Agencies meet and confer with PALCO prior to
taking an action described in Section 9.2.1(a) shall not apply to
disputes arising from Sections 6.1.6.4.2 (Effect of Occurrence of a
Changed Circumstance), 6.1.6.6 (Distribution of Burden After Finding
of Unforeseen Circumstances), 6.2.3.2.1 (Effect of the Occurrence of a
Changed Circumstance) or 6.2.3.3.2
(Effect of Finding Unforeseen Circumstances), or where the applicable
Agency determines that the action must be taken immediately to avoid
violation of applicable law, including jeopardy to the continued
existence of a Federal Listed or State Listed Species. In the case of
disputes arising from such sections, the Parties shall meet and confer
as soon as possible thereafter, but no later than 10 calendar days
after the action by the Agency.
(d) Any Party may terminate the meet and confer process if such process
has not resolved the dispute within 30 days of the meet and confer
notice.
9.2.2 NON-BINDING DISPUTE RESOLUTION
If the meet and confer process has not resolved the outstanding dispute relating
to Sections 6.1.5 (Future Listing of Species Other Than Covered Species), 6.1.6
(Determination of Changed Circumstances and Unforeseen Circumstances), 6.2.2
(Future Regulation of Species Other Than Covered Species), 6.2.3 (Changed
Circumstances and Unforeseen Circumstances), 6.3 (Joint Assurances), 8.2
(Federal Permit Suspension and Revocation), 8.3 (State Permit Suspension and
Revocation), 8.5 (Full Mitigation Upon Relinquishment, Revocation or
Suspension), or 10.5(b) (Severability), PALCO may initiate a process of
non-binding dispute resolution no later than five (5) calendar days after the
conclusion of the meet and confer process. The dispute resolution process shall
involve the mutual selection by the applicable Parties of a third person to
mediate resolution of the dispute between the Parties. If the applicable Parties
fail to agree upon a mediator, the applicable Parties shall each submit three
(3) names of proposed mediators to a previously agreed upon objective third
person whose sole function shall be to select a mediator from the names
submitted. The applicable Parties shall select the objective third person within
60 days after the Effective Date. The Parties may mutually agree to change their
selection of such person at any time.
Unless the Parties agree on alternative procedures, the mediator shall conduct
the non-binding dispute resolution process as follows:
(i) The mediator shall consider all relevant evidence or information
presented by the Parties;
(ii) No Party shall have ex parte communications with the mediator;
(iii) Each Party shall have an opportunity to respond to evidence or
information presented by another Party;
(iv) The mediator shall provide an oral or written report or
recommendation to each of the applicable Agencies and PALCO.
(v) The procedure shall conclude and any report or recommendation shall
be issued within 30 days of the initiation of the proceeding, unless
otherwise agreed to by the applicable Parties.
10. MISCELLANEOUS
10.1. NOTICES
All notices, demands, or requests from one party to another may be personally
delivered, sent by facsimile (with a confirming copy to be sent by overnight
mail), sent by recognized overnight delivery service, or sent by mail, certified
or registered, postage prepaid, to the addresses stated in this section and
shall be effective at the time of receipt of personal delivery, receipt of
facsimile transmission, receipt of overnight delivery, or five days after the
date of mailing.
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PALCO: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
The Pacific Lumber Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
P.O. Box 37
Scotia, CA 95565
with copies to: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
Scotia Pacific Company, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
P.O. Box 712
Scotia, CA 95565 and
▇▇▇▇ ▇. ▇▇▇▇, Esq.
Managing Counsel - Environmental and Litigation
The Pacific Lumber Company
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Nossaman, ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, et al.
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USFWS: United States Fish and Wildlife Service
500 N.E. Multnomah, Suite 607
Portland, Oregon 97232
Attention: Regional Director
with a copy to: Office of the Regional Solicitor
U.S. Department of the Interior
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇
Attention: Regional Solicitor
NMFS: National Marine Fisheries Service
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
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Attention: Regional Administrator
with a copy to: NOAA, Office of the General Counsel
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▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Regional Counsel
CDFG: Director
California Department of Fish and Game
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with a copy to: General Counsel
California Department of Fish and Game
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CDF: Director
California Department of Forestry and
Fire Protection
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to: Chief Counsel
California Department of Forestry and
Fire Protection
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Any party may change the address to which such notices, payments, or other
communications may be sent by giving the other parties written notice of such
change. The parties agree to accept facsimile transmitted signed documents and
agree to rely upon such documents as if they bore original signatures. The
parties agree to provide to the others, within seventy-two (72) hours after
transmission, such documents bearing the original signatures.
10.2 NO PARTNERSHIP
Neither this Agreement nor the HCP shall make or be deemed to make any Party to
this Agreement the agent for or the partner, or joint venturer of any other
Party.
10.3 REFERENCES TO REGULATIONS
Any reference in this Agreement, the HCP, or the Federal Permit to any
regulation or rule of USFWS and/or NMFS shall be deemed to be a reference to
such regulation or rule in existence at the time an action is taken except that
in the event of a future amendment to the Assurances rule which provides less
regulatory certainty to PALCO, PALCO may rely on the Assurances Rule in
existence as of the Effective Date unless such reliance is prohibited by statute
or court order. Any reference in this Agreement, the HCP or the State Permit to
any regulation of CDF or CDFG shall be deemed to be a reference to such
regulation or rule in existence at the time the action is taken. Any such
regulation of CDFG will be interpreted to the maximum extent permitted by law
consistent with CDFG assurances regarding Changed Circumstances and Unforeseen
Circumstances under Section 6.2.3 of this Agreement.
10.4 ENTIRE AGREEMENT
Except as provided below with respect to the AB 1986 Agreement, this Agreement,
along with the exhibits attached hereto, the HCP, the Federal Permit and the
State Permit, constitutes the entire agreement and
understanding between the Parties regarding the HCP and the Federal Permit and
State Permit. This Agreement supersedes any and all prior and contemporaneous
agreements, representations or understandings of the Parties, if any, whether
oral or written, with respect to the subject matter hereof and contains all of
the covenants and agreements among the Parties with respect to said matter. Each
Party acknowledges that no representation, inducement, promise or agreement,
oral or otherwise, has been made by any other Party or anyone acting on behalf
of any other Party that is not embodied in this Agreement, the HCP, the Federal
Permit and/or the State Permit. The Parties acknowledge the AB 1986 Agreement
which is being entered into concurrently by and among the State of California,
CDFG, CDF, the California Resources Agency and the Wildlife Conservation Board
(collectively "the State of California") and PALCO.
10.5 SEVERABILITY
(a) If any provision of this Agreement or the HCP is found invalid or
unenforceable, such provision shall be enforced to the maximum extent
possible and the other provisions shall remain in effect to the extent
they can be reasonably applied in the absence of such invalid or
unenforceable provision.
(b) The State Permit, the Streambed Alteration Agreement, the Federal
Permit issued by USFWS, and the Federal Permit issued by NMFS are
all separately enforceable. Except as otherwise provided in this
Agreement, revocation, suspension or relinquishment of any one
such permit shall not automatically cause the revocation and/or
suspension of the other permits, provided that any revocation,
suspension or relinquishment of a Federal Permit will require a
re-evaluation of the other Federal Permit to ensure that the Take
authorized by the remaining Federal Permit is not likely to
jeopardize the continued existence of, or result in the Take or
adverse modification of the designated critical habitat of, a
Covered Species listed under the FESA that was included in the
revoked, suspended or relinquished Federal Permit. The
invalidation by a court of competent jurisdiction of either the
USFWS Federal Permit, the NMFS Federal Permit or the State Permit
with respect to one or more Covered Species which is not at the
time of the invalidation listed or proposed for listing under the
Endangered Species Act or listed, proposed for listing or a
candidate species under the California Endangered Species Act
shall not invalidate the applicable Federal Permit and/or State
Permit with respect to any of the remaining Covered Species and
the Federal Permit and State permit shall remain in full force
and effect with respect to the remaining Covered Species. The
suspension, revocation or relinquishment of either the NMFS or
USFWS Federal Permit is identified as a Changed Circumstance at
Attachment No. 4 to the HCP and PALCO shall comply with the
planned response to such Changed Circumstance described at
Attachment No. 4 to the HCP.
10.6 GOVERNING LAW
This Agreement shall be governed by FESA and other applicable Federal laws, and
the laws of the State of California.
10.7 ELECTED OFFICIALS NOT TO BENEFIT
No member of or delegate to Congress shall be entitled to any share or part of
this Agreement, or to any benefit that may arise from it.
10.8 AVAILABILITY OF FEDERAL FUNDS
Implementation of this Agreement and the HCP and the assurances provided
therein, to the extent funds are required by such assurances, by USFWS and NMFS
is subject to the requirements of the Federal Anti-Deficiency Act and the
availability of appropriated funds. Nothing in this Agreement will be construed
by the Parties to require the obligation, appropriation, or expenditure of any
money from the U.S. Treasury. The Parties acknowledge that neither USFWS nor
NMFS will be required under this Agreement to expend any Federal agency's
appropriated funds unless and until an authorized officer of that agency
affirmatively acts to commit to such expenditures as evidenced in writing.
10.9 AVAILABILITY OF STATE FUNDS
Implementation of this Agreement and the HCP and the assurances provided
therein, to the extent funds are required by such assurances, by CDFG is subject
to the availability of appropriated funds. Nothing in this Agreement will be
construed by the Parties to require the obligation, appropriation, or
expenditure of any money from the Treasury of the State of California. The
Parties acknowledge that CDFG will not be required under this Agreement to
expend any State of California agency's appropriated funds unless and until an
authorized officer of that agency affirmatively acts to commit to such
expenditures as evidenced in writing.
10.10 RELATIONSHIP TO FESA, CESA AND OTHER AUTHORITIES
Nothing in this Agreement is intended to limit or diminish the legal
responsibilities of USFWS and NMFS as agencies of the Federal government or
CDF or CDFG as agencies of the State of California. In that regard, nothing in
this Agreement is intended to limit the authority of USFWS and NMFS to fulfill
their responsibilities under FESA or CDFG under CESA or other applicable law,
including but not limited to seeking penalties against PALCO.
10.11 BENEFIT OF AGREEMENT; NO THIRD-PARTY BENEFICIARIES
This Agreement is solely for the benefit of the State of California, by and
through CDF and CDFG, the people of the United States of America by and through
USFWS and NMFS, and PALCO. Without limiting the applicability of rights granted
to the public pursuant to FESA or other Federal law, this Agreement shall not
create any right or interest in the public, or any member thereof, as a
third-party beneficiary hereof, nor shall it authorize anyone not a party to
this Agreement to maintain a suit for personal or other injuries or damages
pursuant to the provisions of this Agreement. The duties, obligations, and
responsibilities of the parties to this Agreement with respect to third parties
shall remain as imposed under existing law.
10.12 COUNTERPARTS
This Agreement may be executed by the Parties in several counterparts, each of
which shall be deemed to be an original copy.
10.13 FURTHER ACTIONS AND COOPERATION
From time to time hereafter, the Parties shall execute such instruments and
other documents and take such other actions, upon the request of the other, as
may be reasonably necessary to carry out the intent of this Agreement. The
Wildlife Agencies and CDF agree to reasonably cooperate with PALCO in the
implementation of this Agreement. Such cooperation by the Wildlife Agencies and
CDF shall include acknowledging, to the extent applicable, that this Agreement
remains in full force and effect.
10.14 TECHNICAL ASSISTANCE BY USFWS
The Parties anticipate that over the life of the Federal Permit new data and
scientific studies or research will provide valuable information relevant to the
biology and conservation status of the marbled murrelet. Should PALCO seek the
assistance of independent scientific experts on marbled murrelet biology to
evaluate the status of the marbled murrelet, at the request of PALCO, USFWS will
provide appropriate technical assistance, within its available resources, to the
experts and, in administering the Federal Permit, will consider the views of the
experts carefully and in good faith.
10.15 AMENDMENT OF THE AGREEMENT
This Agreement is not subject to amendment except in a writing signed by all the
Parties.
10.16 APPLICABLE LAWS
Notwithstanding any other provisions in this Agreement all activities undertaken
pursuant to this Agreement, the HCP, or the Federal or State Permits must be in
compliance with all applicable Federal and state laws and regulations, including
CESA (including Section 2081) and FESA (including the provisions of Section 7
and Section 10). This section shall be interpreted in a manner consistent with
Section 10.3.
10.17 SUCCESSORS AND ASSIGNS; PERMIT ASSIGNMENT
This Agreement and each of its covenants and conditions shall be binding on and
shall inure to the benefit of the parties and their respective successors and
assigns. Assignment or other transfer of the Federal Permit shall be governed by
the Services' regulations. Assignment or transfer of the State Permit shall be
governed by applicable state regulations. (These regulations are published at
CCR, t.14, Section 783.6(a) and are attached in Exhibit E.)
10.18 DUE AUTHORIZATION
Each Party represents and warrants that the signatory is authorized to execute
this Agreement on behalf of that Party.
IN WITNESS WHEREOF, THE PARTIES HERETO have executed this Agreement to be in
effect as of the Effective Date.
Dated: THE PACIFIC LUMBER COMPANY
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Dated: SCOTIA PACIFIC COMPANY, LLC
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Dated: SALMON CREEK CORPORATION
By: /S/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
Dated: UNITED STATES FISH AND WILDLIFE SERVICE
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Manager, California/Nevada Operations Office
Dated: OFFICE OF THE REGIONAL SOLICITOR
U.S. Department of the Interior
By: /S/ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
Regional Solicitor
Dated: NATIONAL MARINE FISHERIES SERVICE
By: /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, PH.D.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Ph.D.
Regional Administrator
Approved as to form:
Dated: OFFICE OF GENERAL COUNSEL
National Oceanic and Atmospheric Administration
U.S. Department of Commerce
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
General Counsel
Dated: CALIFORNIA DEPARTMENT OF FISH AND GAME
By: /S/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Chief Deputy Director
Approved as to form:
Dated: GENERAL COUNSEL
California Department of Fish and Game
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
Acting General Counsel
Dated: CALIFORNIA DEPARTMENT OF FORESTRY AND FIRE
PROTECTION
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Director
Approved as to form:
Dated: GENERAL COUNSEL
California Department of Forestry and
Fire Protection
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
Chief Counsel
EXHIBIT A
LIST OF COVERED SPECIES
------------------------------
List of Covered Species for Exhibit A
- Pacific ▇▇▇▇▇▇
- bald eagle
- peregrine falcon
- marbled murrelet
- northern spotted owl
- southern torrent salamander
- tailed frog
- northern red-legged frog
- foothill yellow-legged frog
- northwestern pond turtle
- California red tree vole
- western snowy plover
- bank swallow
- coho
- chinook
- steelhead
- cutthroat trout