Delta Suisun Marsh Office

Delta Levees Program

March 26, 1992 MEMORANDUM OF UNDERSTANDING BY AND BETWEEN THE CALIFORNIA DEPARTMENT OF WATER RESOURCES THE RECLAMATION BOARD CALIFORNIA DEPARTMENT OF FISH AND GAME AND THE RESOURCES AGENCY REGARDING SB 34 FISH AND WILDLIFE PROTECTION This Memorandum of Understanding is made and entered into by and between the California Department of Water Resources (hereinafter DWR), The Reclamation Board (hereinafter Board), the California Department of Fish and Game (hereinafter DFG), and The Resources Agency. The purpose of this Memorandum of Understanding (hereinafter MOU) is to direct the implementation of the no net long-term loss of habitat policy that is mandated in the Delta Flood Protection Act of 1988 (hereinafter SB 34). Concepts agreed upon in this MOU apply both to the Delta Levee Subventions and the Special Project components of SB 34. WHEREAS, DWR, Board and DFG desire to fulfill that obligation as stated in SB 34 to assure that no net long-term losses of riparian, fisheries, or wildlife habitat will occur as a result of SB 34 funded projects; AND WHEREAS, Board has the responsibility for approving criteria and plans for maintenance and improvements of nonproject levees under the Subventions Program; AND WHEREAS, DWR, Board and DFG have completed an initial estimate of impacts to riparian and wildlife habitat resulting from the proposed levee projects; AND WHEREAS, the results of this initial analysis are the basis for initial protective measures in this MOU; AND WHEREAS, the initial estimate may be adjusted to reflect actual habitat impacts thereby adjusting the protective requirements; AND WHEREAS, avoidance of impacts is the most desirable approach to project protective measures; AND WHEREAS, DWR, Board and DFG agree that protective measures for no net long-term loss of habitat should be located as close to the site of impact as practical, and off-site measures should only be explored when all on-site options are infeasible; AND WHEREAS, should replacement of lost habitat be necessary, that replacement habitat is to be of the same type; AND WHEREAS, DWR, Board and DFG agree that any necessary offsite protective measures should be distributed based upon ecological principles that serve to maintain or enhance the biological diversity of the Delta; AND WHEREAS, the parties hereto desire to cooperate in replacing lost habitats by means of this MOU; AND WHEREAS, DFG will give early consideration to supporting DWR and Board's efforts to implement wildlife management practices and subsidence control on Sherman Island and Twitchell Island consistent with other provisions of this agreement; AND WHEREAS, DFG will give early consideration to supporting DWR and Board's effort to coordinate the SB 34 program with the Department of Parks and Recreation's Franks Tract project for riparian habitat creation as well as other purposes; AND WHEREAS, DWR, Board and DFG agree that public ownership, protection, and management of these islands under a plan that is acceptable to DFG can preserve and enhance existing significant fish and wildlife values; AND WHEREAS, the specific mitigation acreage, mitigation credits, if any, and other particulars of that future plan are yet to be determined; AND WHEREAS, DFG is recognized as the management authority for fish and wildlife habitat; AND WHEREAS, DWR, Board and DFG recognize that the Delta currently contains threatened and endangered species and that mitigation and/or avoidance measures must be taken to provide full compensation for potential adverse impacts to these species; AND WHEREAS, DWR is recognized as the CEQA lead agency or responsible agency for Special Flood Control Projects, and the Board the responsible agency for Delta Levee Subventions, and DFG as a responsible agency for both programs; AND WHEREAS, this MOU will be updated as new information becomes available; AND WHEREAS, the conditions in this MOU are not intended to supersede requirements under CEQA, NEPA, State and Federal Endangered Species Acts, or Section 404 of the Clean Water Act, or Section 1600 et seq. of the Fish and Game Code. NOW, THEREFORE, it is mutually agreed and understood as follows: DFG, in consultation with DWR and the Reclamation Board, will prepare a master environmental assessment for the SB 34 programs, to be adopted no later than June 30, 1993. The master environmental assessment will collect information on and provide an overvie-@,7 of Delta-wide environmental values and is intended to be used to assist in determinations of "no net long-term loss," of cumulative impacts of SB 34 projects and work, and in providing information relevant to State and federal regulatory programs to which SB 34 programs may be subject. DFG, also in consultation with DWR and The Reclamation Board, shall develop a "menu" of possible mitigation measures for use in the programs. DWR and the Board shall fully cooperate in the preparation of the MEA including, but not limited to, providing DFG with adequate funds to prepare the study. For use in each levee repair or improvement project, DFG shall develop a guidance document drawing upon the master environmental assessment as appropriate and detailing information useful to the mitigation element of each project plan. Submittal of information pursuant to this guidance document shall not alter the obligations of the project proponents (DWR, The Reclamation Board, or local agencies) under CEQA. The guidance document generally shall direct local agencies to develop a mitigation element consistent with the following principles: The mitigation element shall consider the value of the riparian and fisheries habitat and the need to provide flood protection based on sound engineering. The mitigation element shall include provision for the protection of fish and wildlife habitat determined to be necessary and not injurious to the integrity of flood control works. The mitigation element shall provide for the full mitigation of channel islands or berms with significant riparian communities if proposed for use as borrow sites for levee repair materials. The mitigation element shall ensure that the project does not result in a net long-term loss of riparian, fisheries, or wildlife habitat. The mitigation element shall consider the mitigation to be accomplished, if any, under the California Environmental Quality Act, the California Endangered Species Act, and Section 1600 et seq. of the California Fish and Game Code. The mitigation element shall provide an implementation plan which shall do the following: Describes the mitigation work to be implemented. Includes a schedule for implementation of the mitigation work which ensures that mitigation work will be accomplished prior to, or concurrent with, the construction of the project, or a written description why doing so would be impractical, which includes a schedule detailing when mitigation would be implemented as soon thereafter as practical. Includes a financing plan for the mitigation work, the share of mitigation costs attributable to each source, and a schedule of when the funds are to be provided.   DFG, the Board, and DWR shall cooperate in the review of plans and mitigation elements. DFG approval of a specific plan shall be based upon a written determination that the plan's mitigation element achieves each of the following goals: The project does not involve the use of channel islands or berms with significant riparian communities as borrow sites for levee repair materials unless the impacts are fully mitigated. The project will not result in a net long-term loss of riparian, fisheries or wildlife habitat. The mitigation element includes an implementation plan which: Describes the mitigation work to be implemented. Includes a schedule for implementation of the mitigation work which ensures that mitigation work will be accomplished prior to, or concurrent with, the construction of the project, or a written description why doing so would be impractical, which includes a schedule detailing when mitigation would be implemented as soon thereafter as practical. Includes an adequate financing plan for the mitigation work, the share of mitigation costs attributable to each source, and a schedule of when the funds are to be provided. It is understood that mitigation elements may consist of or include participation in comprehensive regional mitigation-banking programs. Upon approval of mitigation elements by DFG, the project proponent shall be required to enter into a legally enforceable agreement with DFG to ensure that the mitigation element will be adequately implemented, DWR and the Board may encumber funds to implement the project. DWR or the Board may temporarily waive the requirements of this section if it determines that an emergency situation exists which requires immediate action, in which case these requirements shall be carried out as soon thereafter as practicable. DWR, Board, and DFG will encourage and seek out the development and maintenance of measures to protect habitats throughout the Delta. With the first priority being avoidance of impacts and the second priority on-site mitigation measures, off-site measures will be explored only when on-island measures are deemed impractical. DWR, Board, and DFG will cooperatively work to provide information and guidance to local agencies developing mitigation elements consistent with this section and with sections 1, 5, and 6. DFG will use the U.S. Fish and Wildlife Service Habitat Evaluation Procedure (HEP), or a modified version thereof, to guide long-term decisions for proposed action to result in no net long-term loss of fisheries, wildlife, and riparian habitat. DWR and DFG shall implement levee stability demonstration projects which maximize fish and wildlife habitat values without using barren riprap. DWR and Board, in consultation with DFG and coordinated with direct appropriations to DFG as may be made, will reserve funds for protective measures to ensure that no net longterm loss of habitat will occur as the result of SB 34 funded projects. This account will be adjustable each year, depending upon the cost of providing the appropriate habitat protection. This money is to be spent only for fish and wildlife purposes and only by or with the concurrence of DFG. Funding for approved projects shall include sufficient funds for maintenance and operation costs necessary to sustain the long-term viability of the mitigation measure. DWR, DFG, and Board will enter into and fund a long-term maintenance and operating agreement for lands acquired for wil-dlife protection where DFG desires such responsibility, as long as Delta Flood Protection funding is available. DFG shall receive each year $350,000 or such greater or lesser amount as The Resources Agency deems appropriate from that year's appropriation from the Delta Flood Protection Fund for the purpose of carrying out DFG's responsibilities under SB 34, SB 1065, and this MOU. Any requirements under CEQA, Fish and Game Code Sections 1600 et seq. or the California Endangered Species Act will be carried out in a timely manner. DFG will provide both informal and formal consultation as needed. DFG shall conduct at least one annual inspection of each levee and mitigation site for which maintenance, improvement 'or mitigation have been provided pursuant to this part. DFG shall appoint a program manager to develop and implement a 1991-92 plan and budget for implementation of mitigation funded pursuant to Section 3600-001-176 of the 1991-92 Budget Act and under Section 6 above. The plan shall include a request for proposals for a separate contract to analyze past habitat impacts and to propose alternative measures to replace past habitat losses. The Resources Agency will exercise an oversight role over all provisions of this MOU, and shall appoint an advisory committee of flood control, environmental, legislative, and governmental interests to consult in that capacity. This MOU shall commence on the last date signed below and reflects revisions made to the MOU signed on November 12, 1991. Signed, on March 26, 1992 by: Douglas P. Wheeler Secretary for Resources The Resources Agency Boyd Gibbons, Director Department of Fish and Game David N. Kennedy, Director Department of Water Resources Rodney G. Mayer for Raymond E. Barsch General Manager The Reclamation Board