SDCP - Steering Committee Meeting Notes December 1, 2001

SDCP - Steering Committee
Randolph Golf course Clubhouse
9:30 am 11:30 am
Saturday, December 1, 2001
Meeting Minutes

Participants: See attached sign-in sheet, David Steele and SIMG staff.

Speaker: Ms. Sheryl Barrett, Assistant Field Supervisor; US Fish and Wildlife Service

Documents made available to the Steering Committee members at the meeting:
* Talking points for David Steele for the presentation to the Board of Supervisors.
* Extra Agendas and meeting packages.

Meeting Commenced at 9:30 am.
Meeting commenced with 39 Steering Committee members and 17 members of the general public present. David Steele opened up the meeting by introducing himself, presenting the Ground Rules, reviewing the agenda and presenting the meeting notes from the November 7th meeting for approval.

Ground Rules, as they would apply to this meeting only.
1.       Only Steering Committee members can participate in the discussion of issues on the agenda.
2.       General public will participate at the Call to the Public.
3.       One minute per person per agenda topic.
4.       Can only speak a second minute if everyone else has spoken.
5.       Speak into the microphones
6.       At appointed time, move to decision making or next topic
7.       Start and end on time.
Discussion:
* None.

Ground rules should apply to this agenda.

Revision of previous minutes:
Discussion:
·        None.
Minutes approved for the November 7th meeting.

Logistics for the next meeting:
* Wednesday, January 9, 2002 from 7pm to 9pm. The members of the Steering Committee requested a southwest location for this meeting. SIMG Staff will investigate the following locations suggested by the Steering Committee:
* Tucson Estates
* Three Points Middle School
* Community Center at Sandario
* Sahuarita Middle School

Old Business:
* Query to members that have not attended 50% of the meetings:
* David presented the following data: 33 letters of inquiry were sent out. 18 members responded that they would like to continue their participation on the Steering Committee. One member asked to be removed from the Steering Committee. 14 members did not respond.

Discussion:
* We should send these members a second letter.
* We have already voted on this and we should not revisit closed issues.
* Part of the reason for attendance decline is that we can't move on to the substantive issues.

Course of Action: The names of the 14 members that have not responded will be given to the Board of Supervisors.
Course of Action: The Board of Supervisors will advise Steering Committee of major interest groups and replacements if any for Steering Committee members.

* Board of Supervisors Report:
* David presented a copy of the Organizational Guidelines and progress report to the Board of Supervisors on November 21, 2001.
* The Steering Committee has been placed on the Board of Supervisor' Meeting Agenda for December 4, 2001 at 9:00 am.
* David went over the draft of the Talking Points that were distributed to the Steering Committee members at the beginning of the meeting.

Discussion:
* The Ranch, Historical and Cultural Advisory Teams need to be added to the teams that will make presentations to the Steering Committee.
* The request should be made for Fiscal as well as other funding resources available to the Steering Committee. The County Attorney's office should be present to address our concerns.
* Clarification is required from the County Attorney's office as to what constitutes a quorum. All the decisions the Steering Committee has made thus far may have to be ratified if we have not had a quorum of 50+1.


Call to the Public:
Comments:
* As a member of a major interest group replacing a previous member, I hope to be recognized at future meetings.

* By Open Meeting Law, a quorum is 50% + one.

Guest Speaker Ms. Sherry Berrett:
* I am the Assistant Field Supervisor for the Fish and Wildlife Service in Tucson. Tucson is a sub-office and we answer directly to the office in Phoenix. I would like to talk briefly about what the Endangered Species Act requires for a Section 10 Permit.
* A Section 10 Permit is a permit to request authorization for Incidental Take of Listed Species. When a jurisdiction, such as Pima County, applies for a Section 10 Permit, there are Application Requirements:

1.       The impact that is likely to result from the taking. The applicants have to describe the full impact of the species taken and the related habitat issue
2.       The steps that the applicant is going to take to minimize and mitigate the taking.
3.       How they are going to fund that mitigation.
4.       Alternatives to the taking and why they are not being used. This is a key element of what you are doing now. You will be proposing the preferred alternatives. There are two different alternative analysis that are involved in this process:
o        Through the Endangered Species Act: That there have to be alternatives to the taking.
o        Through the National Environmental Policy Act which also requires alternatives analysis.

·        Once the Application has been received it undergoes some analysis. Keep in mind that taking applies only to animals, not living plants. The ESA is quite broad in how we do that analysis:
1.       The taking is Incidental. The difference between Incidental and Direct taking:
o        Incidental taking is when the purpose of your activity is a lawful activity such as grading a lot for construction and during that you may kill or harm an endangered species.
o        Direct take is if one captures, shoots or kill a listed species. This sometimes occurs under research. During research, activities may result in the death of an endangered species.
2.       Show that you have minimized and mitigated to the maximum extent practicable.
3.       Findings must show that the taking will not jeopardize the species. This is the same definition that we use when we analyze projects. We develop a biological opinion on our issuance of the permit because this is a federal action that requires compliance with this provision.
4.       Other measures required by the Secretary of the Interior will be met.

·        As of June 2000, an addendum was published in the Federal Register to the handbook for Incidental Take Permitting Processing. This resulted in a five-point policy. These five points came from Scientific Analysis of our permitting process done by several universities throughout the US.
The five-point policy addresses five issues:
1.       Biological Goals and Objectives: Expected outcome has to be defined. What the take will be and what the conservation is expected to achieve. Guiding principals have to be provided for the conservation. Goals and Objectives have to be measurable, based on species, habitat or both.
2.       Adaptive Management: A method for examining alternative strategies, for meeting measurable biological goals and objectives. This is based on scientific rigor, to make sure that the preserve is, in fact, working for the species for which it is intended.
3.       Monitoring: This is a feedback loop that shows what works within a preserve, what is not working and how the structure needs to be changed to make it work better. The future conservation management actions are adjusted according to what is learned through the monitoring. Evaluating the compliance with the terms of the permit to make sure that any mitigation requirements are actually being implemented, so this is the program monitoring, making sure that the commitments in the permit are being complied with.
4.       Permit Duration: This may be anywhere between 2-50 years. The County is considering somewhere between 30 and 50 years. The Mitigation that results is in perpetuity, as is the management and monitoring, because the development that will occur as a result of the permit is also forever. The permit duration is based on the duration of the applicants proposed activities, the expected positive and negative effects, and the extent of the information underlying the HCP. For example on certain species if we don't know enough, maybe the permit duration for that species is shorter because you're still collecting information. The time necessary to implement and achieve the conservation benefits, and the extent to which the program incorporates adaptive management.
5.       Public Participation: The public comment periods are directly related to the National Environmental Policy Act review. The reviews are associated with Environmental Impact Statements, which require a 90-day review with the public. There is also a permit review for the Endangered Species Act. When we receive a permit application, this has to go to the public for 30 days. Both review periods are conducted simultaneously. In the case of the Sonoran Desert Conservation Plan, there will be an Environmental Impact Statement because of the large nature of the geographic areas and the species that will require a 90-day period.

·              The Endangered Species Act states that when we issue a permit we have to ensure that we know the specific impact to each species. So the best scale to plan this Conservation Plan on is Habitat Conservation Planning, but we have to go back and check it at each individual species. Listed and unlisted species that may be listed in the future may both be addressed. If the unlisted species are addressed as if they were listed then when these species are listed, they are automatically permitted for take. This prevents having to go back and change conservation strategy and goals.

Question: Explain the flexibility of the Permit.
Ms. Barrett: There is a 'no surprises' policy that benefits the permittee: If you are implementing the permit and it is properly functioning, and circumstances change, we're not going to go back and ask for more mitigation of those species. If more mitigation is required then it becomes the responsibility of the Federal Government to pick that up. To get come under the 'no surprises' policy you have to address one of two circumstances: 1) Unforeseen circumstances, those that are not very likely to happen in this area. 2) Changed circumstances, those things that are likely to happen in this area, such as drought, invasion of non-native species, fire and floods. These have to be built into the plan so there are contingencies to address these as needed.

Question: To what extent will your department provide information and guidance to the Steering Committee?
Ms. Barrett: Our goal is to work closely with the applicants so that when they come to us with the application, it is something that we can move forward with in a positive way.

Question: Do you check the validity of the Science and Technical Advisory Team?
Ms. Barrett: We are very involved with the Science and Technical Advisory Team and so we are checking this as we go. We always check the science very closely, no matter what. Our goal is to make sure that the plans are, in fact, going to work for the species. So that viable populations are there for the future.

Question: What about the economic impact?
Ms. Barrett: The economic impact is looked at as part of the Environmental Impact Statement.

Question: How many species are recommended and recognized as endangered?
Ms. Barrett: I would have to get back to you with those numbers. They change all the time.

Question: What level of certainty do we have that this will be implemented?
Ms. Barrett: Certainty that the Plan will be implemented is one of the criteria for granting the permit. Determining how that implementation occurs is the function of this group. There are three broad areas in how you can implement a preserve: 1. Acquisition, 2. Zoning, 3. Mitigation ratios.

Question: What happens if an area is taken over by another jurisdiction? Can the permit be changed?
Ms. Barrett: This is a legal question, but to the best of my knowledge, it depends on whether or not the de-annexing jurisdiction can pass-on the land use restrictions to the annexing jurisdiction, but this changes from state to state.

Question: What happens to land set aside for a species that dies out?
Ms. Barrett: This may not apply to this plan. Presently we can de-list a species for three reasons:
1) Recovery: We look at those elements that are set in place for its conservation. So if a piece of land is set aside for the benefit of that species conservation, we expect that's going to be there. 2)Extinction: This plan is not going to set aside specific land for one specific species because this is an eco-system level plan that addresses multiple species under that one layer.
3) Bad taxonomy is the third.

Question: Does Incidental loss refer to loss of species or loss of habitat, and please explain the 'no-take' alternative, how it works, how it would apply to a habitat.
Ms. Barrett: There are mechanisms where we can address Take Through Harm, which is loss of habitat. Incidental take provides for harm which is the loss of habitat and that is where mitigation is going to become important because we are going to need to show that because we are losing some amount of habitat in one area, a good preserve design is going to be managed in an alternate area to off-set the loss of some of this lower quality habitat in the original area. I would need more information on a direct example in order to address your question of a 'no-take' alternative.

Question: Where do the financial resources come from? What happens if the funds run out for this?
Ms. Barrett: Part of granting the permit is providing certainty that it will be implemented. Implementing includes funding so that is something that is going to have to be part of the program. The Jurisdiction or the applicant has to show to us that they can achieve this funding source. So the funding source that needs to come includes the acquisition, the management and the monitoring.

Question: How does Fish and Wildlife respond to not everyone participating in the Conservation Plan and why are we including State land?
Ms. Barrett: Pima County's goal was to look at an umbrella for the whole region. State lands may not want to commit today, but they may want to do so in the future and we could still make an analysis at the point in the future where they chose to come in if they wanted to go for their own permit.

Question: How far does the list go for Endangered Species? How can you possibly know which species will become endangered? There is no typical line drawn to say what species should be or not be on the list.
Ms. Barrett: Yes, that is correct. You can request a permit for one species or one hundred. You can request a permit for just the listed species or those that will be listed in the near future so that you don't have to go back and redesign your plan. Because this plan is occurring at the vegetation community level, the regional level, there is a lot of overlap. We recommend that you try to address the bio-diversity of the area and try to pick up as many of those vulnerable species as possible so that you haven't just spent four years of your lives planning a preserve, only to have to go back and have to start re-designing because of a new species. It doesn't mean we're not going to list other species that you haven't considered. There is always the possibility that there is one that we didn't know about before or one that has suddenly become more threatened. The goal of this plan, as stated by the Board, is to preserve the heritage and bio-diversity of this area. So they don't have to request an application for all of those species.

Question: Does a Section 10 Permit require a Cost Analysis, as well as a Social Economic Analysis?
Ms. Barrett: NIPA requires some sort of social economic analysis. There are two separate and distinct analyses that are made.

Question: How is the plan framed and what is the proposed action?
Ms. Barrett: Basically, the proposed action is where they are going to build and where they are not going to build. Where they build will be 'the take' and where they are not going to build is going to be the conservation. With the exception of Ranching, which is an element, that we still need to figure out how it will be described, and what action you as a committee are going to hope that they seek. I am not very clear on this myself so this is something you will have to weigh in on.
There may not be a full answer to your question, because it will depend on what Pima County wishes to apply for- because you may fall under their jurisdiction. Regarding how this plan is framed depends on the implementation mechanism. If the whole community decides that acquisition up front is the best way you may only need one permit because you're going to buy the whole preserve, you'regoing to have enough money to manage it and you're going to have enough money to monitor it and you're done. Everyone knows what's going to be conserved and what is going to be developed. But that is not usually the mechanism that happens. Usually there is some amount of implementation through the local land use authority. If that's the case, if they are actually going to be using more of these local land use tools, you're going to have to have a separate permit for the separate jurisdictions because Pima County, for example, has no land use authority over the development in Marana. Those projects that come up through Marana go through their city council and their permitting process. Pima County cannot say how they do or do not occur. In that case you would have to have separate permits for each jurisdiction.

Question: Is NIPA to show us how we have lived here and how we will live here, that is, how we should treat critical habitat?
Ms. Barrette: NIPA is a disclosure document designed to disclose to you the impacts of a federal action and how it is going to be mitigated. It doesn't have a great philosophy or anything like that. The Endangered Species Act is the goal or recovering endangered species, so it is also quite narrow. You have a larger, philosophical perspective and I think that may be more in sync with the goals of the Sonoran Desert Conservation Plan at this point in time. Our federal laws are not this over-arching great philosophical perspective.

Question: What guides do we have, as a body, regarding how we should treat a critical habitat?
Ms. Barrett: We are trying to come out with a draft recovery plan that will actually be a better guideline for the conservation plan. That's coming forth, but also we are going to have to put the Critical Habitat back in within sixteen months, and the court is about to rule on that. At this point I think that using 'Important Habitat' instead is probably is just essential. Habitat isn't a legal definition. Critical habitat gives it a legal designation, and we already know what a Critical Habitat should look like.

Question: Are state lands exempt from this? Will this Section 10 Permit be a blanket for all of Pima County, regardless of jurisdiction and are all the areas being looked at?
Ms. Barrett: It depends how it is structured. If there is no permit then all of those projects will have to continue to go through a project-by-project basis review. This makes things more difficult for a landowner because when we look at an individual project, as we are doing right now, it is called a Section 7 Consultation. Most of these projects greater than five acres require an EPA Permit, and for Storm Water Discharge, under 402 the Clean Water Act. EPA's issuance of that permit requires that we analyze, under Section 7, their effects. We're addressing all those project for example in Northwest Tucson for the pygmy owl and South of Tucson with regard to mostly the Pima Pineapple cactus on a project-by-project basis. And they all have to do their own mitigation. It's much easier for those land owners if we have a broader perspective of what is going to be developed and what is going to be conserved, versus that individual process and it also is much more streamline for the landowner to get that permit. The goal of this permit is that if we give Pima County a permit, that when they issue grading permits in compliance with their big permit, that landowner is covered. He doesn't have to come back to the Fish and Wildlife Service to address his individual project, it's all done. This is regardless of jurisdiction. If Marana goes for one and they are using land use authority and Marana has a permit they say how they are going to implement it and they do that correctly on the issuance of that grading permit that landowner is covered and they don't have to come back to us. And yes, the science committee is looking at all of Pima County, all the way to Ajo.

Question: Does the Section 10 Permit allow for disclosure of socio-economic impact in the Environmental Impact Statement?
Ms. Barrett: We have to disclose socio-economic impact in the EIS. We also have to address the National Historic Preservation Act because we are issuing a permit; this is a federal action so the Fish and Wildlife Service has to make sure there is compliance with the National Historic Preservation Act. This is a policy issue that the Fish and Wildlife Service is still struggling with at the Washington level. We don't know to the degree to which our compliance is necessary. Whether or not we have to require that when we issue these permits to the jurisdiction they have to do all these surveys or that we have to do all this up front. It's just a policy issue that we have not resolved.

Question: Are you able to tell us how the County is doing on funding this plan?
Ms. Barrett: You first have to decide what you are going to acquire. And so you first have to structure how you are going to put this preserve together. Using the three mechanisms on how to put a preserve together, that I mentioned earlier, you have to decide how much of each one you are using, and then decide how much land is actually necessary. At this point, I don't think this process is at that level. I have not seen anything on how they are going to do this so that's a little pre-mature.

Call to Public:

Question: Does the Section 10 Permit cover all species and how does the Endangered Species Act discuss potentially endangered species?
Ms. Barrett: The Endangered Species Act requires a permit for take of listed animal species. In the Congressional Language for Section Ten, it does address the un-listed species in that regard to get a handle on them. So it is only in the Congressional intent of the 82 Amendments to the Endangered Species Act that provided for the Incidental Take of the Section 10 Permit, and it includes both endangered and vulnerable species.

Question: Can the Fish and Wildlife Service compel Marana, the Town of Oro Valley, or the State to cooperate with the plan?
Ms. Barrett: Application for a Permit is voluntary. However they do have the prohibitions of take on them so they need to be sure that their actions don't result in take.

Question: Can recovery include trans-location of an endangered species from elsewhere and could you address the take of habitat?
Ms. Barrett: The Recovery Team is looking at that. There are a lot of issues that have to be dealt with before you can just start bringing in an endangered species and dumping them some place. You have to address the problem first, we have to look at genetics, the appropriate places to put them, land owner issues and we have to ensure survival and propagation. Captive propagation is the last resort because it is expensive and it is better if you can have the habitat restored and have the species expand. Regarding the second part of your question, there is no take of habitat. However we can address the species take through harm and that is the loss of habitat, but you have to tie that back to an individual species.

Question: What number constitutes recovery of an endangered species?
Ms. Barrett: There is not a set number; it varies by species, because it depends on the reproductive rate of each species.

Question: How can setting aside less land possibly help the recovery of a species?
Ms. Barrett: A lot of land out there is being degraded by various land uses off road vehicles for example, that are tearing it up, but if you have a piece of land that is set aside and managed specifically for the conservation of species, you can often have a smaller amount of land than you would a large amount that is not necessarily managed for its benefit.

Question: Are you familiar with the three for one rule?
Ms. Barrett: This is not really a rule but what it derives from is the Science Technical Advisory Team's development of the preserve design. They looked for a mechanism by which they could capture the greatest amount of bio diversity in the smallest land areas. What they looked at were areas where at least three of the 56 vulnerable species were underlying a particular piece of land. That became the outer edges of the preserve design, the core then was where there were at least five species and it denoted even greater species richness and you will get to hear more on this when Paul Fromer makes his presentation. The three for one is not a policy; it is just how this particular Science Technical Advisory Team determined to move forward with the development of the preserve design.

Question: How can we do anything with this plan if our information is flawed?
Ms. Barrett: You should provide any correct information you have. We don't have the funds or manpower to do in-depth investigations of each square mile so we do a lot of extrapolation of knowledge from the public.

Question: How is this plan going to effect state land and federal properties and is Pima County going to be able to change these boundaries after we get the Section 10 Permit?
Ms. Barrett: The BLM and the Forest Service have both signed cooperative agreements with Pima County for future management. While Pima County does not have land use authority over federal lands, but there is an intent to cooperate in the management for the goals of the conservation plan across those federal lands including the Park Service and the Fish and Wildlife Refuges. Whether the boundaries change will depend on the significance of the effect and whether or not we need to go back and evaluate if there is a changein conservation.

Issues for Future Meeting Agendas and New Business
* David went back and checked the date for the January Steering Committee meeting and confirmed that it was scheduled for January 9, 2002. He also confirmed that the Morrison Institute was locked in for January 9th.

Discussion:
-Can we ask the STAT to attend the February meeting and request the long version of their presentation?
* David re-capped his conversation with STAT member, Mr. Paul Fromer regarding the Science and Technical Advisory Team making a presentation to the Steering Committee at the January meeting. The STA Team will be unavailable for the January meeting as confirmed to David Steele by STAT member, Dr. Bill Shaw. Mr. Fromer did confirm that the STA Team is meeting on January 17 for their regularly scheduled meeting and there was the possibility that they could remain until Saturday, January 19 and meet with the Steering Committee, if the Steering Committee agreed to an additional meeting.

Discussion:
            -I propose that we add a meeting for January 19th.
            -I have a conflict with adding a meeting on the 19th, and I would really like to be here for this presentation. We have already decided on Saturdays and Wednesdays for our meetings. I think we should keep them that way.
-Will the Morrison Institute study be finalized when they come to see us? Because it will be of little value if it isn't.
-I propose that the Morrison Institute provide a draft of their study prior to their presentation so that we can look it over and come to the meeting more prepared. I also propose that when the Science Committee comes they also include the Ranch and Mining Committees.
-If the Morrison Institute will not have a final draft by the January meeting then perhaps we should schedule them for February and have the STAT come in January.

* Final proposal is that all points of view are heard, the Ad-Hoc discusses this during the next week or two and send out notifications when the Morrison Institute and the STAT are locked in to a date.

Discussion:
-We need to start looking at our objectives and directives in March.
-Can we schedule our next six meetings at the January meeting?
-Let's get a list going of issues we need to address at each meeting. Otherwise we're going to run out of time and have done nothing but planning.
Steering Committee Member Issues:
Alan Lurie, Southern Arizona Homebuilders Association:
1.       Membership- Suggested that the Steering Committee broaden the scope of membership to include a host of community and governmental institutions in Pima County (See attached for complete list). For members who are already on the SC that represent these organizations, Mr. Laurie said that they be designated as the "official representative" of that organization.

Mr. Laurie also suggested that the Steering committee reconsider its rules on attendance to apply to only prospective member and not to members who send in a representative

Discussion:
            -We have already gone over and ruled on membership and we also ruled that we would
            not revisit issues that have been voted on.
            -This is a closed issue that should not be revisited. We have received our directive from
            the Board of Supervisors.
            -David's letter to the Board of Supervisors addresses this issue and we will get our list
            the Board of Supervisors.

2.   Substantive Issues- With regard to substantive issues that included "good science and economics", Mr. Laurie asked members of the committee to make a motion that requests the science teams, County staff and other relevant county authorities of the SDCP to present a "full explanation" for the following:

* Selection of the 56 species currently on the SDCP list.
* Selection of the geographic areas identified for each species.
* Whether the draft plan's reliance on the recently invalidated Critical Habitat for the pygmy-owl also invalidates those portions of the SDCP.
* Complete economic impact analysis identifying costs and benefits of the SDCP.

Discussion:
-The County has done a good job of addressing our questions and providing information with regards to the economics of this plan.
-We do need to ask the Board to provide us with a list of funding sources.
-It would be good to advise STAT of these very questions.

Steering Committee Executive Session:
The continued role of the Facilitator:
Decision:
SIMG will continue to facilitate through the process portion of these meetings. Steering Committee needs to provide David Steele with guidance on stronger facilitation of the meetings. This will be addressed by the Ad-Hoc Committee.

Meeting adjourned at 9:00 am