Comment Letter H - Sierra Club, December 12, 2002

H-1 The Planning Commission did not consider the MSHCP in the land use analysis of the General Plan because the MSHCP has not been approved by the Board of Supervisors and thus, is not an adopted existing plan. However, the proposed General Plan does include language concerning incorporation of the MSHCP, if in fact, the MSHCP is ultimately approved by the Board of Supervisors.

H-2 See Response H-1. If the MSHCP is ultimately adopted by the Board of Supervisors, the Planning Commission will consider proposed land use designations in the General Plan and their effect upon the MSHCP in connection with future development projects.

H-3 See Responses H-1 and H-2.

H-4 The elements of the RCIP have been developed using a common base of information. At every step, the County, RCTC, and the consultants have shared information and looked for solutions to complex problems by considering all three elements of the Plan. However, no one element was allowed to dictate to any other element. Therefore, land use proposals were based on a variety of factors, only one of which was the conservation proposed under the Draft MSHCP. The Planning Commission had information from staff on whether proposed changes to the land use maps would be in conflict with the Draft MSHCP. Using an MSHCP that had not been through public hearing and has not been adopted as a filter for land use decisions would not be any more appropriate than using land use as a filter to determine whether a property had long-term conservation value. The RCIP makes much more information available to all parties than could ever be achieved in a normal sequential planning effort.

H-5 As stated in the Draft MSHCP, a transportation corridor that would connect Western Riverside County to Orange County is not currently contemplated in the Draft General Plan Circulation Element, but has been identified as a mitigation measure in the Draft EIR for the General Plan as a mitigation measure to reduce the significant traffic impacts associated with the General Plan. The Draft MSHCP describes a process by which such a future facility could be considered a Covered Activity under the Plan. The discussion of the future facility in no way implies that the project is currently being proposed, nor does it imply that additional study and environmental clearances would not be required.

H-6 The comment states that the Draft EIR/EIS must remove its claim that the MSHCP adequately describes impacts to the Orange County NCCP. It is unclear as to which section of the Draft EIR/EIS the comment refers. The Lead Agencies are not aware of any claim in the Draft EIR/EIS that indicates that impacts to the Orange County NCCP are described. Section 4.1 briefly describes existing conservation efforts, including those in Orange County, surrounding the MSHCP Plan Area. The Draft EIR/EIS does state that the MSHCP was specifically designed to augment and complement existing HCPs and NCCPs. (Draft EIR/EIS, p. 1.5-8.) The MSHCP's relationship to adopted and proposed HCPs and NCCPs is also discussed in Section 4.1. (See also Draft EIR/EIS, Figure 4.1.2 [depicting MSHCP in regional context with adopted and proposed HCPs and NCCP]). Because of this, the Lead Agencies expect that impacts to the Orange County NCCP will be insignificant. Absent more specific information, a more detailed response cannot be provided.

H-7 This comment makes a false statement. Nowhere in the text of Section 7 of the Draft MSHCP is it stated that "the most environmentally damaging alternative would be selected." In fact, for facilities that have not reached a point in the planning and design process that would afford a detailed analysis of impacts, the Draft MSHCP provides siting and design criteria that are based on avoidance of impacts to biological resources to the greatest extent feasible.

H-8 The purpose of the analysis contained in Section 7 and throughout the Draft MSHCP is to analyze the effects of activities proposed by the Permittees upon Covered Species. The Covered Activities as proposed by the Permittees are considered in the Take statements contained in Section 9 of the Draft MSHCP, and the conservation analysis performed for all of the Covered Species has considered the effects of that Take. In consideration of these analyses, the Draft MSHCP has determined that coverage for the 146 species analyzed can be achieved, subject to all of the applicable policies and requirements of the MSHCP.

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Comment Letter H² - Jackson, DeMarco & Peckenpaugh on behalf of David H. Murdock, January 15, 2003

H²-1 The Lead Agencies appreciate the commentor's general support of the RCIP efforts. Commentor's introductory remarks summarize Comments H²-9 through H²-354, for which Responses are provided below. The Lead Agencies believe that the MSHCP fully complies with all applicable laws and does not limit property development beyond what would otherwise be required to mitigate development impacts. (Draft MSHCP, p. 1-4) Local Permittees will implement the MSHCP through their normal land use, planning and approval processes. (MSHCP, §§ 6.1.1, 6.2.2; See Responses H²-36, 150, and 151.)

H²-2 The Lead Agencies believe the Draft EIR/EIS fully complies with all the provisions of CEQA and NEPA. Commentor's introductory remarks summarize Comments H²-71 through H²-354, for which Responses are provided below.

H²-3 The Draft EIR/EIS fully discusses and analyzes potential impacts of adopting and implementing the MSHCP. This Draft EIR/EIS is intended to assess the Plan's significant environmental impacts, including unavoidable adverse and cumulative impacts related to the adoption and implementation of the proposed MSHCP. The proposed MSHCP is designed to provide a framework for future decisions and actions. Commentor's introductory remarks summarize Comments H²-71 through H²-354, for which Responses are provided below.

H²-4 The Lead Agencies do not believe that CEQA or NEPA requires that a revised Draft EIR/EIS needs to be prepared. Commentor's introductory remarks summarize Comments H²-71 through H²-354, for which Responses are provided below.

H²-5 All of the information requested from the County has been provided. The County has procedures in place with regard to the provision of GIS data. It would be inappropriate to waive the procedures for one party. The Service is in the process of responding to the FOIA request submitted by the commentor.

H²-6 The County has not been provided with a copy of UCR's response to the referenced Public Record Act request. Nor has the County been contacted by the commentor requesting such information.
 

H²-7 The Service is in the process of responding to the FOIA request submitted by the commentor.

H²-8 See Responses H²-5, H²-6 and H²-7. The Riverside County Board of Supervisors declined to extend the comment period under CEQA. Given the amount of public exposure that the MSHCP has received over the past three plus years, the County believed that 60 days represented a reasonable review period. The public review period for the Draft MSHCP and Draft EIS/EIR closed on January 15, 2003. However, the NEPA review period for the Plan and EIS/EIR was reopened by the USFWS on February 28, 2003 and closed on March 14, 2003. As a result, the public has been allowed to submit comments for a period of approximately 120 days. The Lead Agencies have responded to all comments received during this extended review period.

H²-9 The MSHCP does not require any landowner to conserve their lands nor stop Development. Instead, the MSHCP sets forth a broad array of incentives to encourage Conservation. Where incentives are not sufficient, the MSHCP advocates purchasing certain property from willing sellers. In fact, one of the stated objectives of the MSHCP is to minimize the existing regulatoryburden by streamlining development authorizations under the federal and state endangered species acts. (Draft EIR/EIS, p. 1.2-4.) Compared to the current process where a property owner must negotiate with local, state and federal agencies at numerous points in the development process to address endangered species issues and obtain appropriate permits, the MSHCP provides a one-stop approach. The Plan also provides a defined amount of mitigation that will be required, including the plan requirements within the Criteria Area, that are necessary to enable the Wildlife Agencies to issue permits under FESA and NCCP Act. The Criteria are supported scientifically and are not onerous. See Response H²-171.

H²-10 There is no standardized format utilized or mandated for the preparation of Environmental Impact Reports and/or Environmental Impact Statements. State CEQA Guidelines, Section 15120(a) states, "Environmental Impact Reports shall contain the information outlined in this article, but the format of the document may be varied. Each element must be covered, and where these elements are not separated into distinct sections, the document shall state where in the document each element is discussed." Information required in an Environmental Impact Report includes: Table of Contents (Section 15122); Summary (Section 15123); Project Description (Section 15124); Environmental Setting (Section 15125); Consideration and Discussion of Environmental Impacts (15126, 15126.2, and 15126.4); Alternatives (15126.6), Effects Not Found to be Significant (Section 15128); Organizations and Persons Consulted (15129); and Discussion of Cumulative Impacts (15130).

The required elements stated above are clearly presented in the EIR/EIS in its Table of Contents: Executive Summary (Section ES); Project Description (Section 2.0); Environmental Setting/Affected Environment (Section 3.0); Environmental Consequences (Section 4.0); Alternatives (Section 4.0); Issues Not Considered Significant and Not Selected for Detailed Analysis Effects (Section 1.5.5); Organizations and Persons Consulted (Section 7.0); and Cumulative Impacts (Section 5.0).

H²-11 The Lead Agencies believe the MSHCP project description fully complies with applicable laws, is sufficiently detailed, and accurately reflects the MSHCP requirements and potential impacts. This introductory comment generally summarizes Comments H²82 through H²-246, for which Responses are provided below. The Lead Agencies believe the project description completely and accurately discusses the project location, and contains all necessary information required by State CEQA Guidelines section 15124 and by section 1502.10 of the CEQ Guidelines. Specifically, the project description includes the following required elements:

1. The precise location and boundaries of the project (Draft EIR/EIS, p. 2.1-2, and Figures 1.2, 2.1, 2.2);
2. A detailed map and a map showing the project's location in a regional perspective (Draft EIR/EIS, Figures 1.1, 1.2);
3. A statement of project objectives (Draft EIR/EIS, pp. 1.2-2 - 1.2-5);
4. A general description of the project's technical, economic and environmental characteristics (Draft EIR/EIS, § 2.0); and
5. A statement describing the intended uses of the Draft EIR/EIS. (Draft EIR/EIS, §§ 1.2.3 and 1.4.)

The Draft EIR/EIS analyzes the MSHCP, a document that is designed to provide a framework for future decisions and actions. The description of the proposed MSHCP adequately addresses all integral parts of the Project. Thus, the Project description is accurate and allows meaningful evaluations of the Project's environmental effects. See Responses H²-36, H²-150 and H²-151.

The comment also seems to confuse the term "HCP boundaries" and "conservation and criteria areas." First, establishing "hard line" boundaries, or identifying the precise parcels to be included in, the MSHCP Conservation Area, Cores and Linkages, and Edge Effects is not required by the FESA or CEQA. (See FESA §10(a)(2)(A)(ii) (applicant is to identify steps to be taken to minimize and mitigate impacts); accord Section 10 HCP Handbook, p. 7-3; see generally Section 10 Handbook, p. 3-22 (it is acceptable for HCP applicants to conduct activities prior to the time when replacement habitat can be provided, particularly in the context of regional HCPs where mitigation fees will be used as a funding mechanism).) Indeed, because regional HCPs are often funded through collected habitat mitigation fees and other revolving sources of funding, mitigation lands could be and are not all purchased "up front." Instead, conservation lands are purchased in a timely manner as funds become available. This method of conservation of land acquisition forms the basis of most regional HCPs. Because the precise mitigation lands that might be available for acquisition in the coming years cannot be adequately predicted at this time, and due to other legal constraints, the MSHCP properly identifies the Core Areas and Criteria Area to facilitate future acquisition of Additional Reserve Lands. Moreover, many of the stakeholders specifically did not want a hardline boundary in the MSHCP. See Section 3.1.The lack of a hardline boundary does not in any way limit or adversely impact the ability of the decision-makers to use the Draft EIR/EIS to adequately analyze potential project impacts. The Criteria Area is defined in the MSHCP. (Draft MSHCP, p. 3-16.) Figure 3-1 in the MSHCP depicts the Criteria Area within the Plan Area and represents the MSHCP Plan map. See Responses D-8, D-17, G-3, and H²-85.

The MSHCP is based on the most accurate and complete scientific data available. The development of the MSHCP was predicated on the use of this information. The Planning Agreement that initiated the planning effort called for the use of this data. In addition, the adaptive management and vegetation data base update provisions of the MSHCP will allow for science to play a substantial role in the MSHCP Conservation Area development process. (See generally MSHCP, §§ 5.0 et seq., 6.3 et seq.) See Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

With regard to projects with actual vesting rights, see Response H²-270.

The Lead Agencies believe the MSHCP fully complies with project objectives enumerated in the EIR/EIS and all applicable state and federal laws, as set forth in more detail in Responses H²-102 through H²-246.

H²-12 The Environmental Setting/Affected Environment of the area covered by the MSHCP is detailed in Section 3.0 of the Draft EIR/EIS. This section provides a detailed description of the biological setting (Section 3.1) and transportation system (Section 3.2) within the Plan Area. Additionally, the MSHCP includes a description of the existing biological setting (Section 2.1), and existing land use (Section 2.2). Combined, the MSHCP and its EIR/EIS provide an adequate description of the physical environment within the area covered by the MSHCP.

H²-13 The commentor states that the conclusions reached in the Draft EIR/EIS are unsupported by facts and analysis. Analysis and facts supporting the conclusions reached in the Draft EIR/EIS can be found in Sections 3.0, 4.0, 5.0 and 6.0 of the document. In the absence of specific examples, no further response is possible.

H²-14 See Response H²-304.

H²-15 Section 5 of the Draft EIR/EIR fully discusses cumulative impacts to the extent that the MSHCP's incremental effects combined with the effects of other projects is "cumulatively considerable" and "cumulatively significant" (State CEQA Guidelines, § 15130(a); 40 CFR § 1508.8, 1508.25.) The State CEQA Guidelines only require an EIR to discuss and analyze cumulative impacts if the impact is cumulatively considerable. (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, modified by 2002 Cal. App. LEXIS 5015 ("CBE").) Insignificant impacts only need to be discussed briefly. (State CEQA Guidelines, § 15128; Sierra Club v. Gilroy City Council (1990) 222 Cal.App.3d 30, 46.) Similarly, federal agencies are required to analyze whether a proposed action is "related to other actions with individually insignificant but cumulatively significant impacts." (40 CFR § 1508.8, 1508.25.) Insignificant impacts do not need to be analyzed.

The State CEQA Guidelines set forth two methods for satisfying the cumulative impacts analysis requirement. (State CEQA Guidelines, § 15130(b)(1)(A-B).) The EIR/EIS uses the summary of projections approach and bases the projections upon Southern California Association of Governments (SCAG) regional population growth forecasts for 2025 for unincorporated western Riverside County and the Cities within western Riverside County. (State CEQA Guidelines, § 15130(b)(1)(B); Draft EIR/EIS, p. 5.1-2.) Similarly, the EPA's advisory memorandum entitled "Consideration of Cumulative Impacts in EPA Review of NEPA documents" suggests the modeling and trends analyzing method for analyzing cumulative effects. The EPA suggests that a cumulative impacts analysis should include a discussion of (1) resources and ecosystem components; (2) geographic boundaries and time periods; (3) past, present and reasonably foreseeable future actions; (4) condition of the environment; and (5) thresholds to assess resource degradation. The cumulative impacts analysis in the Draft EIR/EIS fully discusses impacts to biology, land use, agricultural resources, mineral resources, housing, population and employment, public services, parks and recreation, and transportation. (See Draft EIR/EIS, pp. 5.1-6 5.1-10.) Forecasts of population, housing, and employment for the proposed MSHCP cities are shown in Tables 5A, 5B and 5C of the Draft EIR/EIS. The Draft EIR/EIS also establishes thresholds of significance and discusses past, present and reasonably foreseeable future actions that may have a cumulative effect on the environment.

As supported by the evidence in the record, not all issues analyzed were significant or cumulatively considerable. Adoption of the proposed MSHCP and issuance of a Take permit under FESA and the NCCP Act would permanently conserve portions of land in western Riverside County and would permit Takeof Covered Species. Since the MSHCP does not authorize any physical development, it was determined that implementation of the proposed MSHCP would not result in any significant environmental effects relating to the following issue areas: Aesthetics, Air Quality, Cultural Resources, Geology and Soils, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use, Noise, Public Services (with the exception of fire protection and parks), Utilities, and Environmental Justice. As required by CEQA, the Draft EIR/EIS briefly discusses these insignificant environmental issues in Section 1.5.5. (State CEQA Guidelines, § 15128.) For example, because the proposed MSHCP does not authorize Development, implementation of the proposed MSHCP would not create additional sources of light or glare affecting aesthetics. The Draft EIR/EIS discusses aesthetics on pages 1.5-5 and 1.5-6. Likewise, since there is no authorized Development, adoption of the proposed MSHCP would not alter the methods used to generate, use, transport, or dispose of hazardous materials. There would be no adverse impacts to cultural resources, hydrology and water quality, or geology and soils as no ground-disturbing or building activities would be directly authorized by the Plan. The MSHCP also would not alter land use designations or increase the areas designated for Development in any general plan. Thus, no adverse impacts to land use, noise, public services, utilities, or environmental justice would occur. For these reasons, there are no significant cumulative impacts on aesthetics, air quality, cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, noise, utilities or environmental justice.(See Draft EIR/EIS, pp. 1.5-5 1.5-11.)

The growth inducing impacts of the MSHCP are fully discussed in Sections 5 and 6 of the Draft EIR/EIS. (See Draft EIR/EIS, pp. 5.1-6 - 5.1-10; 6.1-4 - 6.1-5.) Pursuant to State CEQA Guidelines section 15126.2, the EIR/EIS specifically discusses the MSHCP's potential to induce growth on pages 6.1-14 and 6.1-5 of Section 6 and also includes the growth inducing effects of the MSHCP in the discussion of cumulative impacts on pages 5.1-6 through 5.1-10. As the EIR/EIS notes, the growth inducing potential of a project would be considered significant only if it fosters growth or a concentration of population in excess of what is assumed in relevant master plans, land use plans or in projections made by regional planning agencies. Further, the Draft EIR/EIS concludes that not only will the establishment of the MSHCP Conservation Area enhance the quality of life in western Riverside County, but also that neither the proposed MSHCP nor any of the project alternatives contain components that would directly generate residential, commercial, or industrial development or induce population growth within the Plan area (See EIR/EIS at p. 6.1-5.).

However, the analysis does recognize that if development cannot occur where it is currently proposed or at levels currently permitted by the County and Cities, such growth must be accommodated elsewhere. Thus, on page 6.1-5 of the Draft EIR/EIS, the conclusion was made that the MSHCP may have an indirect growth inducing effect, because it will accommodate and streamline the approval process for future developments within those areas of western Riverside County outside the limits of the MSHCP Conservation Area. "[O]ut of an abundance of caution, the Lead Agencies [also] determined that the [MSHCP] will have significant indirect impacts on Population, Housing, and Employment." (See Draft EIR/EIS, p. 5.1-9.) However, the County cannot address these potential indirect impacts in the Draft EIR/EIS for the MSHCP because it would be speculative to try to determine where, and if, any particular future development would be constructed. CEQA does not require speculation. To the contrary, State CEQA Guidelines Section 15145 specifically states that speculation is not required in an EIR. Likewise, NEPA does not require an analysis of impacts that are too speculative to identify. (See, e.g., Kootenai Tribe of Idaho v. Veneman (2002) 313 F.3d 1094.)

Additionally, the Draft EIR/EIS also recognizes that the MSHCP would remove an impediment to growth by authorizing Take of Covered Species. (Draft EIR/EIS, p. 5.1-9.) Thus, the MSHCP is growth-accommodating, not growth inducing. The MSHCP's impacts associated with the potential relocation or development outside the MSHCP Conservation Area are discussed in detail in Section 5.1 and in Responses D-80, K-123, I-43, H²-300, and H²-304.

H²-16 The commentor states that feasible mitigation measures are not identified in the EIR/EIS, particularly to mitigate impacts to Vegetation Communities, non-covered species, and cumulative impacts to mineral resources. The MSHCP is intended to serve as a method of mitigating impacts to biological resources that will result from future Development. The MSHCP would not directly cause those impacts, but would provide Take Authorization for listed species through the USFWS and would conserve Covered Species. Impacts to non-covered species resulting from Development will be analyzed in the environmental documentation for each development project. If the MSHCP does not provide sufficient mitigation, additional mitigation may be required to reduce those impacts on a project-by-project basis. Cumulative impacts to mineral resources would result if substantial amounts of land with extractable mineral resources is set aside for conservation purposes. The MSHCP Conservation Area would consist of existing Public/Quasi-Public Lands and private land acquired from willing sellers. No feasible mitigation measures are available to address cumulative impacts to extractable mineral resources and therefore, no measures are identified or considered in the EIR/EIS. See Response K-122 for further discussion of mineral resources. See Responses H²-13 and H²-14 with regard to additional impacts not discussed in the EIR/EIS.

H²-17 The Lead Agencies disagree with the commentor's statement that the EIR/EIS improperly defers analysis and development of mitigation measures, and maintains that the impacts disclosed in the Draft EIR/EIS are accurate, adequate, and appropriate. Since specific examples are not provided in the comment, a more specific response cannot by provided.

H²-18 As required by both CEQA and NEPA, the Draft EIR/EIS discusses a range of reasonable alternatives in detail in Section 2. (14 Cal. Code Regs. § 15126(a); 40 CFR § 1502.14.) The County and the Service, as lead agencies, have the discretion to determine how many alternatives constitute a reasonable range. (See Citizens of Goleta Valley v. Board of Supervisors (1990) 52 Cal.3d 553, 556.) Although an infinite number of alternatives and variations could be identified, neither EIRs nor EISs are required to evaluate all possible alternatives or "consider an alternative whose effects cannot be reasonably ascertained and whose implementation is considered to be remote and speculative." (14 Cal. Code Regs. § 15126(d)(5)C; 40 CFR § 1502.14(a).) As a result, the alternatives analysis in the Draft EIR/EIS focus on those options that could be implemented and which, if implemented, would have the potential to reduce or avoid any significant adverse environmental effects associated with the proposed Project, met project objectives and are potentially feasible. The selection of alternatives is discussed in the Alternatives Screening Document of the Draft EIR/EIS (Appendix B) and in the MSHCP Alternatives Development Document (Dudek, Oct, 4, 2000). The Alternatives analyzed in the Draft EIR/EIS are the Proposed MSHCP; the Listed, Proposed and Strong Candidate Species Alternative; the Listed and Proposed Species Alterative; the Existing Reserves Alternative; and the No Project Alternative. The four alternatives identified in the Draft EIR/EIS were chosen to foster informed decision-making and public participation.

The Draft EIR/EIS's conclusion that the proposed MSHCP is the Environmentally Superior/Environmentally Preferable Alternative is supported by the discussion alternatives in both Section 2.0 and on pages 6.1-5 - 6.1-6. Specifically, the Draft EIR/EIS concludes that the proposed MSHCP conserves the greatest numbers of acres of habitat in usable configurations, conserves the most species, and would provide a management structure for maintaining the viability of the habitat. The Existing Reserves and No Project Alternatives would conserve land on a project-by-project basis, and would not result in a system for management or increased conservation. The Listed, Proposed, and Strong Candidate Species and Listed and Proposed Species Alternatives would have usable configurations for the MSHCP Conservation Areas, and would also include a management structure for overseeing the MSHCP Conservation Areas, but ultimately they would conserve less habitat than the proposed MSHCP. Because the Draft EIR/EIS concludes that the proposed MSHCP would result in the most conservation and would provide more organized and usable habitat conservation than the Existing Reserves Alternative and the No Project Alternative, it is the Environmentally Superior/Environmentally Preferable AlternativeperCEQAand NEPA. (Draft EIR/EIS, p. 6.1-6.)

H²-19 From its inception, the three components of RCIP were designed to use a common database, and to have coordinated policy direction. The County created the RCIP as a model to help determine future land use, transportation, and conservation needs for the County. RCIP consists of three integrated but individually distinct planning efforts: (1) update the County's General Plan to anticipate future growth over the long term; (2) create an MSHCP for the western portion of the County; and (3) identify transportation corridors to meet the County's future transportation needs (CETAP). As noted in the Draft EIR/EIS, adoption of the General Plan is the sole responsibility of the County of Riverside, while adoption of the MSHCP also requires approval of 14 Cities within the western portion of the County, Caltrans, State Parks, RCTC, the California Department of Fish and Game, and US Fish and Wildlife Service. Adoption of CETAP is the responsibility of the RCTC and the Federal Highway Administration. While they are coordinated, the update of the County's General Plan, the MSHCP, and CETAP have independent utility, and could be adopted regardless of actions taken in relation to the other projects.

CEQA does not require an analysis in the EIR of "each and every activity carried out in conjunction with a project." (Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 909-910.) In Native Sun, the court upheld an EIR for a complex development project despite a claim that the EIR failed to discuss a proposed development agreement that was "part of the project description." The court stated that the "EIR's straight forward reference to the development agreement alerted persons interested in that document to its relevance in the decision making process." Like the lead agency in Native Sun, the County has complied with CEQA and alerted the public to the importance of related documents. The commentor has not provided specifics about how the environmental analysis is inadequate or improperly defers environmental review and thus a more specific response cannot be provided.

H²-20 The County Board of Supervisors will be considering approval of the General Plan in months to come and considering actions on staff recommendations to alter the MSHCP references in the General Plan to include provisions which indicate that the MSHCP would only be applicable if adopted. Compliance with CEQA's procedures will ensure that the County has fully considered the scope and implications of the MSHCP. It is common and in fact typical for a Lead Agency to select a preferred project for analysis. It is only after the public comment period, however, that the Lead Agency could certify the EIR and approve a project. (14 C.C.R. §§ 15090, 15092.) Further, the Lead Agencies disagree that the submittal of a mere application for an Incidental Take permit commits the Lead Agencies to approving the MSHCP as drafted. This would be tantamount to making the argument that merely submitting an application for some type of development approval would commit a lead agency to approving a project in the form submitted with the application.

H²-20A See Responses H²-10 through H²-20.

H²-21 County staff and members of the Board of Supervisors have met with Murdock (staff and consultants employed by the family of Murdock Companies) several times over the past year. At each of these meetings, the County has expressed its willingness to work with Murdock to maximize their development potential while addressing environmental concerns. As recently as late January 2003, Murdock met with members of the Riverside County Board of Supervisors to discuss Murdock's concerns with the MSHCP and its potential impact on Murdock properties. The County will meet as often as necessary in an effort to resolve issues involving the development of Murdock properties.

H²-21A The MSHCP planning process has been ongoing for over 4 years with the review and input of the scientific review panel and a wide range of stakeholders. This input will continue throughout the MSHCP approval process. Given this length of time and input, the Lead Agencies disagree that the process should be slowed. See Responses H²-22 through H²-25.

H²-22 The commentor appears to confuse the MSHCP terms. The MSHCP Conservation Area will include the approximately 500,000 acres of PQP and Additional Reserve Lands that will be managed. The precise boundary of the MSHCP Conservation has not yet been fully defined. The Criteria Area consists of approximately 310,000 acres from which the Additional Reserve Lands will be conserved allowing flexibility in Reserve Assembly. See Response H²-270 regarding property with vested rights. With regard to the scientific data, see Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003. With regard to ongoing mining operations, see Responses H²-23 and H²-127.

H²-23 In general, existing legal uses such as mining may continue operating as they have historically done. The MSHCP has no effect on these existing legal uses although Take Authorization can only be granted under the MSHCP if the applicant received such authorization from a Local Permittee. If these existing activities expand or significantly change and discretionary or certain ministerial approvals are required, the MSHCP terms and conditions would be applicable.

H²-24 With regard to the scientific data, see Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003. With regard to the resource value of certain properties owned by Murdock, see Response H²-128 and responses to Comment Letters N³ and C⁴. The MSHCP was developed as a regional plan to conserve blocks of habitat and linkages. The habitat types used to develop the plan are generalized to reflect the basic building blocks of the MSHCP Conservation Area. Project-level information provided by Murdock confirms that the generalized habitat types are sufficiently accurate for development of the regional plan. A determination as to whether particular parcels may be suitable habitat will be made as part of the HANS and consistency review processes. The processes ensure that an early determination will be made as to what property within the Criteria Area are needed for the Additional Reserve Lands that the owners of property needed for conservation are compensated, and that owners of land not needed will receive take authorization for Covered Species. (MSHCP, § 6.1.1) Accordingly, the rights of landowners in the Criteria Area -- with and without potentially suitable habitat for Covered Species -- are protected under the process.

H²-25 The MSHCP does not say that "geographic descriptions for each Cell...will take precedence over the actual biological conditions present." The HANS and consistency review processes have been established to encourage willing seller - willing buyer transactions. The MSHCP does not put the burden on property owners to prove that actual biological conditions conflict with the MSHCP's geographic and species/habitat descriptions for Cells, including those for the Elsinore and Temescal Canyon Area Plans. The "burden" on property owners is simply to negotiate in good faith to achieve the objectives of the MSHCP in return for certainty in their ability to develop. (See MSHCP, § 6.1.1.) The MSHCP, the HANS and the Criteria Refinement processes do not violate federal or state law, as explained in more detail in Responses below. The comment does not provide any indication of what specific state or federal laws are allegedly being violated, prohibiting further response.

H²-25A See Responses H²-26 through H²-37.

H²-26 The MSHCP does not impose new regulations beyond what exist in current law. Since specific comments are not provided, a more specific response cannot be given.

H²-27 Criteria Areas have been established in which suitable habitat lands will be conserved for the benefit of listed and unlisted species covered by the Plan that are impacted by construction and operation of regional improvements and private development projects. The FESA not only deems it appropriate to include listed, proposed, candidate and unlisted species in an HCP, FESA actually encourages such inclusion. (Section 10 Handbook, pp. 4-1 et seq. ("[t]he Services should explain to any applicant the benefits of addressing unlisted species in the HCP and the risks of not doing so, and should strongly encourage the applicant to include as many proposed and candidate species as can be adequately addressed and covered by the permit.") As stated in the Section 10 Handbook, "There are also advantages in addressing unlisted species in the HCP (proposed and candidate species as a minimum), particularly those that are likely to be listed within the foreseeable future or within the life of the permit. Doing so can protect the Permittee from further delays--e.g., having to revise the HCP and amend the permit-should species that were not listed at the time the original HCP was approved subsequently become listed. In addition, the 'No Surprises' policy...applies to listed as well as unlisted species if they are adequately addressed in the HCP." (Section 10 Handbook, p. 3-7; see also, p. 4-1.) Moreover, "the decision about what species to include in the HCP is always the applicant's." (Section 10 Handbook, p. 1-16, 4-1.)

To the extent the comment raises issues related to covered plant species, see Response H²-204. The Lead Agencies do not understand the comment that physical features may be exempt or not regulated under state or federal law and are unable to further respond.

The comment also states that the MSHCP requires "set asides of private land for species that do not necessarily occur on that land." No matter where it occurs in western Riverside County, new Development produces direct, indirect and cumulative impacts to species and habitat for which mitigation must be provided. The Plan covers well over 100 species that inhabit various types of habitat throughout western Riverside County.

As exhaustively detailed in the species accounts provisions of the MSHCP, habitat for these Covered Species exists in each of the evaluated areas. Even lands that a particular developer might consider to be unoccupied still can have effects on Covered Species in terms of edge and other harmful effects. Perhaps even more importantly, the MSHCP is intended to address the impacts to species and their habitats of the construction, maintenance and operation of roadways and other public improvements in western Riverside County. To offset the impacts associated with such regional infrastructure, the acquisition and permanent management of blocks of habitat and linkages is required by the FESA, CESA and other applicable laws. Thus, the MSHCP will facilitate the timely development of local and regional infrastructure critical to all development in western Riverside County, whether that development occurs on lands now occupied or not.

H²-28 All discretionary County and City approvals related to Development shall be subject to the MSHCP. Certain ministerial approvals by Cities that will result in grubbing, clearing and grading of habitat and other species impacts will also be subject to the MSHCP. All discretionary and ministerial approvals will be required to pay the Local Development Mitigation Fee. Issuance of grading permits for single family homes or mobile homes on existing legal lots will be subject to expedited review. (Ibid.)

H²-29 The MSHCP provides an expedited path to project approval over what exists today. For projects outside the Criteria Area, payment of a fee and (if applicable) completing limited surveys would meet compliance with the MSHCP and would provide mitigation under CEQA for impacts to Covered Species. Inside the Criteria Area, the HANS process allows a property owner to quickly (within 45 days) determine how their project relates to the MSHCP, and what portion (if any) of the property is needed for Conservation. If none of the property is needed for Conservation, the applicant proceeds with the project as they would outside the Criteria Area. If all or a portion of the applicant's property is needed for Conservation, it is up to the applicant at that point to determine if they wish to propose a development project consistent with the MSHCP, what lands would be conserved through dedication, whether incentives would provide compensation for some or all of the conservation lands, and to enter into negotiations to sell portions needed for Conservation that would not be conserved through dedications or the application of incentives. The length of time required to reach agreement is largely in the hands of the property owner. However, HANS sets maximum time lines of 120 days for this process.

In all cases, this process can be quicker and less complicated than dealing with a mix of local, state, and federal agencies with no assurances that either the applicant will be able to develop their property or they will receive fair compensation for the lands they cannot develop.

H²-30 The MSHCP does not place "a cloud over hundreds of thousands of privately-owned property...because restrictions on property are not easily discernable." The MSHCP, while comprehensive and complex given the scope of the Plan, is not unduly complicated. Implementation of the MSHCP will be overseen, administered and enforced by a joint regional authority formed by the County and participating Cities pursuant to the requirements of the California Government Code and other applicable legal authorities. The MSHCP adopts an incentive based program implemented by the Permittees to conserve some property located in the Criteria Area over time as a means to accumulate large conservation areas to benefit species and habitat. See Responses H²-27 and H²-29.

The HANS process was carefully drafted to reflect stakeholder input as well as meet all legal requirements. (See generally Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (April 23, 2002, Case No. 00-1167).) The HANS and Criteria application processes, and in some cases the Criteria Refinement Process, will be used as the means for acquisition of fee title, conservation easements and other interests in property. To the extent feasible, other processes will run concurrently with regular development approval processes. Thus, the MSHCP processes does not place burdensome restrictions on private property. See Responses H-132, H-138, H-140 and M-17.

Moreover, the MSHCP does not require any landowner to conserve their lands. Instead, the MSHCP incorporates a broad array of incentives to encourage conservation on privately owned lands. (See MSHCP, § 6.1.1.) Additionally, it is a stated goal of the MSHCP to properly compensate private landowners for participating. As stated in Section 1.0 of the Draft EIR/EIS, the implementation strategy relies heavily on incentives to encourage private property owners to conserve their land if appropriate for Reserve Assembly. These incentives include, but are not limited to, the waiver and/or reduction of certain development fees, monetary compensation for entering into an option agreement, fast track processing, density bonuses, clustering, density transfers and property reassessment and tax credits, if determined to be feasible. Where these incentives are insufficient, the MSHCP encourages purchase of properties at fair market value from willing sellers. The proposed MSHCP does, therefore, anticipate compensating landowners. Accordingly, the MSHCP does not place a "cloud" on privately-owned property.

H²-31 The HANS process was developed in cooperation with all stakeholders, including property owners, to address how the MSHCP would be implemented. The intent is to assure that property owners are fairly compensated for properties acquired for Reserve Assembly. HANS would not result in a property owner being delayed a maximum of six years if they want to develop their property. The six year period could only occur if they have entered into an agreement to sell their property for Reserve Assembly purposes. If they do not enter into such an agreement, their project would proceed through hearings and either be approved or denied. Acquisitions will proceed as quickly as agreement can be reached, subject to the availability of funds. It will be desirable to leverage as much of the acquisition funding into the first five to ten years of the Plan. A mechanism to finance acquisition costs and thereby assure an adequate flow of funds to complete acquisitions on a timely basis may be necessary.

HANS was set up to assure that no property owner is unduly delayed in either obtaining compensation for their property or having their development proposal acted on by the local jurisdiction. If the property is not acquired during the term of the purchase agreement, then the project may proceed to hearing or the property owner can agree to extend the term of the purchase agreement.

H²-32 The origin of the 840,000 acre and the 67% figures referenced in the comment is not clear to the Lead Agencies. All discretionary and certain City ministerial actions in the Plan Area will need to demonstrate consistency with the MSHCP. In return, Take Authorization will be given to projects within the Plan Area.

H²-33 The Plan estimates that approximately 310,000 acres of privately-owned land is within the Criteria Area and Additional Reserve Lands will be assembled from this acreage. The HANS process is not overly time consuming or unacceptable. In fact, the MSHCP stakeholders had extensive involvement in shaping the HANS process. See also Responses H²-29 and H²-31. The comment does not provide any indication of what specific state or federal laws may allegedly be violated, prohibiting further response.

H²-34 The MSHCP cannot interfere with ongoing existing legal land uses. The Wildlife Agencies recognize existing Section 7 Agreements and Section 10 Permits and do not require further review for consistency with the MSHCP.

H²-35 Land acquisition costs were estimated based on available land sales data derived from the records of the Riverside County Assessor. Additionally, this information was compared to actual acquisition costs for conservation lands acquired over the past two years. The land sales were analyzed by General Plan Area Plan and further broken down by development type - Urban, Rural, Agricultural and Open Space. A second projection of land costs will come out of the nexus study currently being developed. The nexus study will consider any additional land acquisition costs provided by the commentor for inclusion and analysis in the study. Clearly land prices will change over time. Implementation costs and revenue estimates will need to be updated periodically. Section 8.6 discusses the potential actions that local entities could take if revenues are not keeping up with costs. The fee is currently projected to be approximately $1500 per residential unit. Approximately a $700 increase over existing open space fees charged to new Development in the unincorporated County area. Significantly less than other mitigation fees currently imposed that often range from $2,500 to $10,000 or more per lot.

H²-36 The appropriate Local Permittee with jurisdiction over the project area will be the final decision-maker on development applications, not the Wildlife Agencies. The Plan specifically states that the RCA does not usurp local land use controls. (See MSHCP, § 6.6.2.) It is true that the Plan gives the Wildlife Agencies the ability to revoke the Permits pursuant to state and federal law. However, these Agencies already have, through state and federal law, the ability to revoke the Permits through failure to comply with the Plan. The role of the federal and State governments during the MSHCP implementation process is thus not to "have the final say in every development application" but instead to track the implementation process to ensure that the terms and conditions of the MSHCP and related documents are met.

H²-37 The MSHCP is intended to obtain Take Authorization and provide mitigation for impacts to Covered Species resulting from both public and private Development. An important component of the Plan is to mitigate for impacts to Covered Species associated with the construction and expansion of regional infrastructure, including roadways.Publicfacilities will be constructed in accordance with applicable infrastructure plans. The MSHCP is not intended to affect the extent to which local development interests may elect to enter into development or other agreements with land use jurisdictions to actually construct needed public facilities. Local Permittees will be responsible for ensuring compliance with the MSHCP for public and private projects. The Lead Agencies are unclear regarding the statement that infrastructure will be subject to the MSHCP without consideration of the land uses those facilities are to serve and are unable to provide further response.

H²-38 See Response H²-35 regarding land values. See Response F-98 regarding the use of incentives. There is no requirement or indication that more than 56,000 acres will need to conserved by the Local Permittees.

H²-39 The Wildlife Agencies will sign the appropriate documentation and issue the Permits authorizing the Take of Covered Species once they have made the findings required by FESA Section 10(a)(2) and the NCCP Act, Fish and Game Code section 2080, et seq., NEPA and CEQA. One of the required findings that must be made by the Wildlife Agencies prior to Permit issuance is that adequate funding is available for Plan implementation. The Wildlife Agencies will be contractually obligated to take certain actions for Plan implementation. (See IA, § 14.0 [USFWS Obligations] and 15.0 [CDFG Obligations].) No features of the MSHCP require input from the Wildlife Agencies for "every ministerial and discretionary land use proposal". The joint review process found in Section 6.6 of the MSHCP merely provides that the Wildlife Agencies will receive copies of project applications proposed within the Criteria Area. Estimates have been made of staffing requirements for implementation of the Monitoring Plan. These estimates are presented in Section 5.3 of the Plan.

H²-40 The MSHCP process has been designed to be as straight-forward, unburdensome and timely as possible given the size and scope of the Plan and to run parallel to and in conjunction with existing development application processes. For a plan of this unprecedented scope, there must be an entity that has responsibility to ensure compliance. A joint powers authority was determined to be the appropriate mechanism because it would include representation from the County and participating Cities. However, these public agencies, not the RCA, will continue to have primary responsibility for review (and conditioning, as appropriate) of individual land use applications and issuing permits. As stated in the MSHCP, "the Regional Conservation Authority shall not limit County or City local land use authority, or prevent a Permittee from approving a Discretionary Project." (MSHCP, § 6.6.2, pp. 6-74, 6-78.) Given the size and scope of the Plan, it would be inefficient and unruly not to have a separate agency oversee the implementation of the Plan.

H²-41 The County and participating Cities will comply with relevant statutory time frames. For example, the time needed for conducting the MSHCP's narrow endemic and other species surveys, the "HANS" process, and other requirements of the Plan will not prevent the County or Cities from complying with CEQA and the Permit Streamlining Act ("PSA"). Submission of a project application is the first step in the streamlined permitting process under the PSA. (Cal. Gov. Code § 65943) The PSA does not apply to negotiations that occur between the local public agency and the project developer prior to the acceptance of an application as complete. If a developer wishes, a project application may be submitted prior to completion of the HANS process. However, the application will not likely be deemed complete until the HANS process has been finalized. The PSA's time limits for processing permits and environmental documents are thus not applicable. Similarly, the first step in the CEQA process is a preliminary review, which must be completed within 30 days of receiving a project application. (14 Cal. Code Regs.§§ 15060, 15101.) Again, because a project application will not be deemed complete until the HANS process is complete, the time limits established under CEQA for processing project applications are not applicable.

The MSHCP requirements will not violate any statutory protections. For example, Government Code Section 65858, limiting moratoriato a maximum two-year period, does not apply to the MSHCP because the HANS process is not a moratorium. A moratorium is defined by Government Code Section 65858 as an interim ordinance prohibiting uses of land which may conflict with a general plan, specific plan, or zoning proposal that the local agency is considering implementing, without following the procedures otherwise required for the adoption of a zoning ordinance. The MSHCP is simply not the sort of temporary freeze as is described by Section 65858, for the purpose of studying of alternatives to the general plan. As such, the requirements of this code section do not apply.

Further, the procedures established under the MSHCP are not a constitutional "taking". The United States Supreme Court held in the recent case of Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, (2002) 535 U.S. 302, that even a complete temporary building moratoria is not a per se takings. California courts have long held that planning functions are within a local agency's police powers, and are not takings. As was noted in the case of First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, (1987) 482 U.S. 304, 321, the discussion of a temporary takings does not even apply "in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like," which the Court views as properly a matter of state property law. Several California cases have held that no taking occurs simply because a governmental agency refuses to allow development until the procedural conditions and substantive requirements for development have been met. (See e.g., Landgate, Inc. v. California Coastal Commission, (1998) 17 Cal.4th 1006, 1027; Calprop Corp. v. City of San Diego, (2000) 77 Cal.App.4th 582.) As noted in Landgate, development delay "is an incident of property ownership and not a taking of property." (Id. at 1031) At issue in Calprop was the City of San Diego's change in regulation of specific property based in part on a Multi-Species Conservation Plan and compliance with CEQA and other environmental laws. The court noted that:

"the differences between the city staff and plaintiff over the applicability and impact of the state and local environmental measures is just the sort of threshold dispute which the court in Landgate held is part of the normal regulatory process." (Id. at 33.)

Morever, the court went on to say, "because the delay in developing a plan was...part of the normal regulatory process, the delay did not give rise to any takings claim.." (Id. at 34.) Under Calprop, it is clear that compliance with environmental laws and programs such as Habitat Conservation Plans are difficult pre-development matters to resolve, and that such resolution will legitimately take some time. The time it takes to make the appropriate decision under the MSHCP is simply a normal incident of property ownership and not a taking.

Further, Seiber v. United States, (2002) 53 Fed. Cl. 570 specifically held that a period of time during which the plaintiff sought an incidental take permit as well as a HCP was not a temporary taking. Finally, in the case of Guinnane v. City and County of San Francisco, (1987) 197 Cal.App.3rd 862, the court rejected a claim that the designation of property as open space, to be studied for possible acquisition as a public park, amounted to unreasonable pre-condemnation activity. The court held that mere planning activities of the city did not entitle the plaintiff to require the city to condemn the property in question and pay the landowner the market value of the property before the threat of condemnation arose. Neither the MSHCP generally, nor the HANS process specifically, results in a taking.

H²-42 See Response H²-20.

H²-43 The Criteria-based plan provides exactly the flexibility that is raised by the commentor. Because the Criteria Area is approximately 310,000 acres, the Additional Reserve Lands require about 50%. Thus, there is inherent flexibility for Reserve Assembly. The HCP Handbook states that "HCP boundaries should encompass all areas within the applicant's project, land use area, or jurisdiction within which any permit or planned activities likely to result in incidental take are expected to occur...For regional HCPs, the size and configuration of the plan area will depend on various factors. Sometimes a regional HCP boundary will simply be a county line because a county government is the applicant... Generally, HCP applicants should be encouraged to consider as large and comprehensive a plan area as is feasible and consistent with their land or natural resource use authorities." (HCP Handbook, p. 3-11.) Consistent with these requirements, the MSHCP Plan Area encompasses all areas within the jurisdiction of the County and the participating Cities in which activities resulting in Take are expected to occur. The MSHCP clearly and specifically delineates these Plan boundaries. (See MSHCP, pp. 1-1, and Figures 2-9 and 3-3.) Even if property with vested rights is in the Criteria Area but cannot be conserved, Reserve Assembly is still feasible.

H²-44 See Response F-98 regarding the use of incentives. The funding plan anticipates that up to 41,000 acres can be conserved through dedications required to address open space, topography, and physical constraints or through the application of incentives. It is speculative to say that more than 56,000 acres of privately owned property will need to be purchased by the Local Permittees for Reserve Assembly.

H²-45 The comment states information from the MSHCP, and no further response is required.

H²-46 See Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003. The commentor's statement that there is "inadequate science" does not represent a meaningful or relevant standard for information required in an HCP or an NCCP. The federal standard for information in HCPs requires that the best scientific and commercial data available be used, and the State Fish and Game Code requires the use of the best scientific and other information that is reasonably available. These standards were met in the Draft MSHCP.

With regard to soils data, discernable natural changes in soil composition and characteristics occur over extremely long periods of time, greatly exceeding 30 years. Therefore, the fact that some of the soils data used in some of the species analyses for the Draft MSHCP date back 30 years, has no material effect on those analyses.

H²-47 Adaptive Management has always been a fundamental element in the MSHCP planning effort, and is considered by the scientific community to be the best approach for managing reserves in an urban matrix. See Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003. Both the current and earlier drafts of the MSHCP accurately characterize the experimental nature of Adaptive Management programs. This is a well-documented characteristic of Adaptive Management. The proposed MSHCP utilizes a well-funded long-term Management and Monitoring Program to respond to dynamic changes expected over time within the MSHCP Conservation Area; changes that are related to both natural processes and human induced factors.

H²-48 See Response H²-35 regarding land values. See Responses F-98 and H²-44 regarding incentives.

H²-49 See Response H²-21A. The MSHCP is in compliance with existing Local, State and Federal Laws and Regulations and does not impinge on or violate any constitutional rights.

H²-50 The Lead Agencies are fully committed to reviewing and considering each comment. However, it is up to the Lead Agencies to determine which comments and resulting proposed changes to the Plan are feasible and appropriate, and would still allow Permit issuance by the Wildlife Agencies. As explained in the responses to comments contained herein and elsewhere, the MSHCP does not violate CEQA, NEPA, FESA, CESA or any other applicable state and federal laws. The comment is not sufficiently specific to provide further response.

H²-51 The County has met with the commentor several times to attempt to craft a development scenario for the vast majority of the referenced property while addressing existing environmental constraints. The Lead Agencies encourage the commentor to continue this effort to quickly resolve outstanding issues. See Responses H²-23 and H²-270.

H²-52 Covered Activities are described in Section 7 of the MSHCP. Review of private projects for consistency with the MSHCP will occur through the HANS process. Flexibility is incorporated in the HANS process which may allow modifications to be made to projects without "triggering a second full MSHCP review."

H²-53 See Responses H²-41 and H²-181. Thus, no revisions are required.

H²-54 See Response H²-52. The Lead Agencies do not agree that it is appropriate to exempt subsequent permit and project approvals from a "second review under the MSHCP" in that it is necessary to determine if the subsequent permit or project approval is consistent with any determination or agreement that resulted from a first review under the MSHCP.

H²-55 The County would not require that the acquisition of the conservation portion of a proposed project be completed before processing the development application on the remainder. HANS encourages this approach by entering into a purchase agreement for the lands to be acquired and concurrently processing the development portion of the project.

H²-56 See Response H²-28. The Lead Agencies anticipate that most if not all, in the case of the County, ministerial permits are exempt from the provisions of the MSHCP. Only limited City ministerial approvals that could have impacts on Covered Species will be subject to the MSHCP. For the same reason, grading permits, whether discretionary or ministerial, will be subject to the provisions of the MSHCP.

H²-57 See Response H²-34 regarding existing permitted land uses. The MSHCP does not propose applying these procedures and guidelines to existing land uses.

H²-58 The Draft MSHCP does not propose "buffers." The Urban/Wildlands Interface Procedures and Guidelines are considerations that are intended to guide decisions

regarding the selection of appropriate landscaping materials, fencing and other design considerations in appropriate circumstances where urban uses are proposed in proximity to lands that have been incorporated into the MSHCP Conservation Area.

H²-59 The Draft MSHCP, Section 6.1.3, provides a complete discussion of the rationale for the need for the Narrow Endemic Plant Species Procedures and Guidelines to support coverage for those species. Many of the species that rely on the Narrow Endemic Plant Species Procedures and Guidelines for coverage are not currently listed as federal or state endangered or threatened. Based on the information available for these species, coverage for these species, as currently proposed in the Draft MSHCP, could not be demonstrated without the Narrow Endemic Plant Species Procedures and Guidelines.

H²-60 The Draft MSHCP, Section 6.1.2, discusses the process through which Conservation of Covered Species that rely on Riparian, Riverine and Vernal Pool habitat resources will be achieved. The mechanism identified for carrying out this process is identified as being the existing CEQA process. Limitation of the discussion to ACOE jurisdictional areas only would not fully address the issues related to all of the Covered Species identified.

H²-61 The Plan encourages the use of incentives and anticipates additional incentives being developed. The commentor is encouraged to propose additional incentives that would benefit property owners and further the implementation of the MSHCP. See Response F-98.

H²-62 The comments and memoranda previously submitted to the County by Murdock and Mr. Myshak have been responded to elsewhere.

H²-63 The Lead Agencies concur that the boundaries of the properties described in the comment are located within the Criteria Area. Information regarding the current entitlement process for these properties is noted and no further response is necessary.

H²-64 With regard to property subject to a development agreement with vested rights, see Response H²-270.

H²-65 This comment describes the location, size and features of the commentor's proposed "Outlet Mall Expansion" project and no further response is required. See Response H²-270.

H²-66 See Responses H²-64 and H²-270.

H²-67 The comment identifies the commentor's ownership and land use operations on the property referred to as the "Pacific Clay Property," and no further response is required.

H²-68 The MSHCP does not interfere with on-going existing permitted uses. See Response H²-23.

H²-69 This comment describes the location, size and features of the commentor's proposed "El Cerrito Specific Plan" project and no further response is required.

H²-70 See Response H²-171.

H²-71 The commentor is purportedly restating the project description in the Draft EIR/EIS and the description of the Western Riverside County MSHCP and no further response is required.

H²-72 The Draft EIR/EIS fully complies with both state and federal law, as set forth in more detail in this comment letter. The language of the California Public Resources Code, the State CEQA Guidelines and case law speak for themselves and the comment therefore does not require further response.

H²-73 This comment purports to restate federal and case law and no further response is required.

H²-74 This comment purportedly restates state law; however the commentor mischaracterizes the courts opinion in Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296. CEQA allows lead agencies to adopt mitigation measures to be implemented after completion of further studies and evaluations of the mitigation measures provided that performance standards are specified in the mitigation measure. (See, Sacramento Old City Ass'n v. City Council (1991) 229 Cal.App.3d 1011, 1021.) In the case cited by commentor, the court recognized that environmental review must be performed at the "earliest feasible stage in the planning process" thereby implicitly recognizing that some studies can be conducted after project approval. (Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 307.) A lead agency may rely on future studies to define how a mitigation measure will be designed and implemented. This approach is appropriate to tailor the mitigation measures to fit the actual environmental conditions.

(See National Parks & Conserv. Ass'n v. County of Riverside (1999) 71 Cal.App.4th 1341, 1366.) Additionally, the language of the California Public Resources Code and the State CEQA Guidelines speak for themselves and no further response is required.

H²-75 This comment purports to summarize state, federal and case law and no further response is required.

H²-76 This comment purports to summarize state, federal and case law and no further response is required.

H²-76A See Responses H²-77 through H²-84.

H²-77 As stated in Response H²-10, there is no standardized format utilized or mandated for the preparation of Environmental Impact Reports. The document's Executive Summary summarizes the purpose of the EIR/EIS (Section ES.1), introduces the reader to the RCIP process (Section ES.2), describes the project location (Section ES.3), states the purpose of and need for the EIR/EIS (Section ES.4), summarizes the proposed MSHCP (Section ES.5), outlines the goals of the MSHCP process (Section ES.6), identifies alternatives to the MSHCP (Section ES.7), discusses issues raised during the MSHCP process (Section ES.8), and summarizes potential impacts/consequences associated with implementation of the MSHCP (Section ES.9). The EIR/EIS includes a summary of potential impacts/consequences and their significance after implementation of the proposed action, and each alternative (Table ES-B).

The MSHCP is "self-mitigating." With the exception of impacts to upland vegetation, non-covered non-listed species, mineral resources and the population/growth projections (which remain significant and unavoidable) implementation of the management and monitoring programs outlined in the MSHCP document would mitigate all other potential impacts/ consequences of the Proposed Action to a less than significant level. For the impacts that remain significant after implementation of the MSHCP, no feasible mitigation measures exist to reduce impacts to a less than significant level. The Proposed Action assumes the adoption of the MSHCP and the implementation of the policies, strategies, and programs identified therein. As the MSHCP is "self-mitigating," no additional mitigation measures were identified or required in the EIR/EIS.

H²-78 The commentor states that the Draft EIR/EIS is inadequate because the Table ES-B in the Executive Summary does not differentiate between the MSHCP's project-specific and cumulative impacts. Such a differentiation is not required by CEQA (Guidelines, Section 15123) or NEPA, nor is the inclusion of a summary table (such as Table ES-B). To provide clarification, however, the text on page ES-11 in Section ES.9 has been modified as follows:

Table ES-B summarizes the significance of direct and indirect impacts under each alternative after the incorporation of mitigation measures for each resource area discussed in this EIR/EIS. Cumulative impacts are discussed in Section 5.0.

H²-79 Table ES-B provides a summary of the impacts/consequences resulting from implementation of the Proposed Action and each alternative, as well as the level of significance of said impacts. As CEQA Guidelines Section 15123(c) states an EIR's summary, "...should normally not exceed 15 pages." A detailed analysis of the impacts/consequences of the Proposed Action and each alternative is provided in Section 4.0 of the EIR/EIS.

Under State CEQA Guidelines section 15126.6, an "alternatives matrix" is not required. Moreover, if a lead agency elects to prepare a matrix, it can include any information it deems relevant. Table ES-B summarizes potential impacts/consequences that would result from implementation of the Proposed Action and the various alternatives, and is not intended to act as a mitigation monitoring or compliance program. As stated in Response H²-12, the MSHCP is "self-mitigating." With the exception of impacts to upland vegetation, non-covered non-listed species, mineral resources and the population/growth projections (which remain significant and unavoidable) implementation of the Management and Monitoring Programs outlined in the MSHCP would mitigate all other potential impacts/consequences of the Proposed Action to a less than significant level.

H²-80 See Response H²-79. Table ES-B summarizes potential impacts/consequences that would result from implementation of the Proposed Action and the various alternatives, and is not intended to act as a mitigation monitoring or compliance program. As stated in response H²-12, the MSHCP is "self-mitigating." With the exception of impacts to upland vegetation, non-covered non-listed species, mineral resources and the population/growth projections (which remain significant and unavoidable) implementation of the management and monitoring programs outlined in the MSHCP document would mitigate all other potential impacts/consequences of the Proposed Action to a less than significant level.

Table ES-B provides a summary of the impacts/consequences resulting from implementation of the Proposed Action and each alternative, as well as the level of significance of said impacts. As CEQA Guidelines Section 15123(c) states an EIR's summary, "...should normally not exceed 15 pages." A detailed analysis of the impacts/consequences of the Proposed Action and each alternative is provided in Section 4.0 of the EIR/EIS.

H²-81 The commentor does not explain why the Executive Summary is confusing and fails to identify the information that is lacking as required by CEQA. As CEQA Guidelines Section 15123 states, an EIR's summary shall contain the following:

1. An EIR shall contain a brief summary of the proposed actions and its consequences. The language of the summary should be a clear and simple as reasonably practical.
2. The summary shall identify:
   1. Each significant effect with proposed mitigation measures and alternatives that would reduce or avoid that effect;
   2. Areas of controversy known to the Lead Agency including issues raised by agencies and the public; and
   3. Issues to be resolved including the choice among alternatives and whether or how to mitigate the significant effects.
3. The summary should normally not exceed 15 pages.

Sections 21083, 21087 and 21061 of Public Resources Code. The document's Executive Summary summarizes the purpose of the EIR/EIS (Section ES.1), introduces the reader to the RCIP process (Section ES.2), describes the project location (Section ES.3), states the purpose of and need for the EIR/EIS (Section ES.4), summarizes the proposed MSHCP (Section ES.5), outlines the goals of the MSHCP process (Section ES.6), identifies alternatives to the MSHCP (Section ES.7), discusses issues raised during the MSHCP process (Section ES.8), and summarizes potential impacts/consequences associated with implementation of the MSHCP (Section ES.9).

Table ES-B provides a summary of the impacts/consequences resulting from implementation of the Proposed Action and each alternative, as well as the level of significance. A detailed analysis of the impacts/consequences of the Proposed Action and each alternative is provided in Section 4.0 of the EIR/EIS. The Lead Agencies believe the Executive Summary provides the public with an adequate summary of the project and all requisite information required by CEQA and NEPA. See also Responses H²-77 through H²-80.

H²-82 State CEQA Guidelines section 15124 states that the description of the project must contain the following information but should not supply extensive detail beyond that needed for evaluation and review of the environmental impact: "(a) The precise location and boundaries of the proposed project shall be shown on a detailed map, preferably topographic. The location of the project shall also appear on a regional map; (b) A statement of the objectives sought by the proposed project. A clearly written statement of objectives will help the lead agency develop a reasonable range of alternatives to evaluate in the EIR and will aid the decision makers in preparing findings or a statement of overriding considerations, if necessary. The statement of objectives should include the underlying purpose of the project; (c) A general description of the project's technical, economic, and environmental characteristics, considering the principal engineering proposals if any and supporting public service facilities; [and] (d) A statement briefly describing the intended uses of the EIR." The comment purports to restate state, federal and case law and no further response is required.

H²-83 This comment purports to quote case law and no further response is required.

H²-84 This comment purports to quote case law and no further response is required.

H²-84A See Responses H²-85 through H²-130.

H²-85 See Responses H²-11 and H²-82. The MSHCP clearly and specifically delineates the Plan boundaries. (See Draft EIR/EIS p 2.1-2, and Figure 2.1; see also Draft MSHCP, pp. 1-1, and Figures 2-9 and 3-3.) The commentor seems to confuse the establishment of the MSHCP boundaries with the boundaries for the MSHCP Conservation and Criteria Areas. (See Response H²-43.) Establishing "hard line" boundaries, or identifying the precise parcels to be included in, the Conservation Area, the Criteria Area, Cores and Linkages, and Edge Effects is not required by the FESA or CEQA. (CITE ; see generally Section 10 Handbook, p. 3-22 [it is acceptable for HCP applicants to conduct activities prior to the time when replacement habitat can be provided, particularly in the context of regional HCPs where mitigation fees will be used as a funding mechanism]. (State CEQA Guidelines, § 15145 [due to the scope of the project it is too speculative to identify with certainty the exact boundaries].) Indeed, because regional HCPs are often funded through collected habitat mitigation fees and other revolving sources of funding, mitigation lands are not all purchased "up front." Instead, conservation lands are purchased in a timely manner as funds become available. However, because the precise mitigation lands that might be available for acquisition in the coming years cannot be adequately predicted at this time, and due to other legal constraints, the MSHCP identifies Core Areas and conservation Criteria to facilitate future acquisition of mitigation lands for the Plan.

Additionally, under the MSHCP, a clear path to either Conservation or Development is defined, which allows property owners to determine the extent of the MSHCP's potential impacts to their property. The commentor is correct that the MSHCP calls for 153,000 acres of additional Conservation that will be obtained from the approximately 310,000 acre Criteria Area. This is why the EIR/EIS states that the precise boundaries of the Additional Reserve Lands have not yet been determined. Any property owner can immediately ascertain at this point in time whether their property is within the Criteria Area and thus determine the Criteria requirements (http://www.rcip.org/PDFlib/ rcip/apn_search.asp).

H²-86 See Response H²-11. Also, note that the Criteria Area is depicted for each Area Plan in Figures 3-4 through 3-35 of the Plan.

H²-87 See Responses H²-3, H²-11, H²-85, and H²-86.

H²-88 See Responses H²-3, H²-11, H²-85, and H²-86.

H²-89 The commentor states that the Draft EIR/EIS underestimates the size of the Criteria Area. The Draft EIR-EIS states that the Criteria Area is "approximately 300,000 acres." This is consistent with the approximated acreage provided in the MSHCP. The outer boundary of the Criteria Area depicted on Figure 3-1 of the November 15, 2002 Draft MSHCP is calculated through GIS to be 310,000 acres. Not all of the Cells are precisely 160 acres, based on USGS mapping. Therefore the commentor's calculation of the size of the Criteria Area is not correct. The impacts analyzed in the Draft EIR/EIS were based on the estimated 153,000 acres that would be conserved from within the Criteria Area, not on the entire extent of the Criteria Area. Therefore, the approximate nature of the description of the Criteria Area's extent does not affect the outcome of the analysis. The Criteria Area has been refined and modified as new information has become available. The purported statement by DUDEK estimating the size of the Criteria Area as approximately 350,000 acres during a consultation between Murdock and Dudek in October 2002 would have reflected that the process of refinement was still ongoing at that time.

H²-90 Figure 4.1.3 does not, as commentor suggests, necessarily identify the 153,000 acres of private land that will be conserved as Additional Reserve Lands. Linkages are only one part of such acreage. Figure 3-2 of the MSHCP and Figure 4.1.3 of the Draft EIR/EIS are intended to demonstrate the interrelationship between Linkages and other aspects of the MSHCP Conservation Area, such as Cores and Noncontiguous Habitat Blocks. The proposed Cores and Linkages depicted in Figure 3-2 of the MSHCP and Figure 4.1.3 of the Draft EIR/EIS are based on a potential reserve design developed for analytical purposes -- they are not "hard-line" boundaries. Likewise, the quantitative information presented with each Core or Linkage is based on a potential reserve design. The potential reserve design used to form Figure 3-2 of the MSHCP and Figure 4.1.3 of the Draft EIR/EIS was merely an analytical tool intended to describe one possible way in which the MSHCP Conservation Area could be configured consistent with MSHCP Criteria and to demonstrate to the decision-makers how Linkages would be utilized; it does not represent the only possible reserve that could be assembled consistent with the MSHCP Criteria. Flexibility is essential to assembly of the MSHCP Conservation Area to enable new information and data to be incorporated as part of the long-term MSHCP implementation process. Accordingly, the scale of the figures is sufficient to demonstrate how the Cores and Linkages interrelate. See Responses H²-3, H²-11, H²-43, H²-85, and H²-86.

H²-91 As explained in Response H²-90, the precise boundaries of the MSHCP have not been determined. However, in order to illustrate the various concepts involved in the Conservation Area Assembly, Figure 4.1.3 of the Draft EIR/EIS and Figure 3-2 of the MSHCP depict how Cores and Linkages interrelate. These figures only represent one possible configuration consistent with MSHCP Criteria. See Responses H²-3, H²-11, H²43, H²-85, H²-86, and H²-90.

H²-92 The Draft MSHCP does in fact, provide a clear and specific definition of Edge Effects, which is contained in the "Definitions" section of Volume I of the Draft MSHCP (pg. Def/Acr-vi).

Section 3.1.4 of the Draft MSHCP further defines Edge Effects, and provides citations to scientific literature on the study of Edge Effects. These studies additionally belie the commentor's assertion that Edge Effects are "amorphous," as they have been subject to extensive scientific analysis, review and corroboration.

Regarding the assertion that Edge Effects are "uncertain" or that the Draft EIR/EIS and Draft MSHCP "fail to provide any description of the extent of the edge effects boundaries," Section 3.2.3 of the MSHCP, beginning on page 3-31 and continuing through page 3-108 provides extensive discussions of the anticipated Edge Effects for each of the existing and proposed Cores and Linkages associated with the MSHCP Conservation Area, including quantification of the total estimated edge area, the interior area, and the perimeter to area ratio for each component of the MSHCP Conservation Area.

Edge Effect boundaries are not described in the Draft EIR/EIS or the MSHCP because no such boundaries are established by the MSHCP. The commentor correctly notes measures identified in the Draft EIR/EIS and the MSHCP to minimize Edge Effects.

H²-93 This comment appears to summarize state law; however, the case cited in the comment, Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, is not instructive in this instance. At the time the EIR at issue in Berkeley Keep Jets was written, the 1991 profile was the most recently published profile. After the draft EIR was circulated for public review and comment, the use of this speculation profile was criticized as "outdated" because the 1991 profile had been replaced by a 1994 speculation profile. Because newer information existed prior to the publication of the draft EIR, the court held that the use of the older profile was inappropriate. (Id. at p. 1367.) In contrast, the data used in the Draft EIR/EIS for the MSHCP is the most recent and accurate information available for the entire Plan Area and satisfies CEQA's requirement that the County make "a good faith effort at full disclosure." See Response H²-22. Since the comment does not raise an issue regarding environmental impacts, no further response is required.

H²-94 This comment purportedly summarizes federal law and no further response is required.

H²-95 This comment purportedly summarizes federal and case law and no further response is required.

H²-96 The comment is purportedly a restatement of certain documents and Fish and Game Code Section and no further response is required.

H²-97 The MSHCP utilizes the best scientific and commercial data available, as explained in detail in Responses G-10, H²-93 through H²-122 and N3-1 through N3-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-98 The Draft MSHCP and Draft EIR/EIS fully acknowledge the limitations associated with the database and conclude that the database is adequate for the purposes of the Draft MSHCP. The Draft MSHCP, Section 2.1.1 states the following:

The MSHCP incorporates features to update the vegetation map as new information is obtained, such as the development of a new vegetation map as part of the MSHCP Monitoring Program. The timing and methodology for developing this map is described in Section 5.3 of this document. This approach is compatible with the criteria-based format of the MSHCP which calls for assembly of 153,000 acres of Additional Reserve Lands from within an approximate 300,000-acre Criteria Area.

The Draft MSHCP incorporates this and other features to address the data limitations during the long term Reserve Assembly and MSHCP implementation process, including the following:

• One of the first tasks called for in the MSHCP Monitoring Plan is an update to the vegetation map using a rapid assessment methodology described in Section 5.0 of the MSHCP;
• The criteria-based approach to Reserve Assembly as described in the MSHCP is clearly directed at responding to project-specific information as it is brought forward during the individual project review process;
• The MSHCP Monitoring and Management Plan and the annual reporting process call for incorporation of new data into the MSHCP throughout the life of the Permit.

H²-99 The Draft MSHCP, Section 2.1.1 acknowledges the limitations of the Coastal Sage Scrub Quality Model. The conservation analyses conducted for each of the species that are associated with coastal sage scrub habitats consider the limitations of the data available from this model, along with all other pertinent available data.

H²-100 Page 3.1-3 of the Draft EIR/EIS refers to the data source for species and provides a UCR public website reference. These data are also available on the RCIP website (www.rcip.org). The website provides detailed information, including record sources, locations and dates, where such information is available. In some cases, records consist of museum voucher specimens for which no collection dates were available, or records from undated sources. It is well documented in both the UCR database and the Draft MSHCP that the species occurrence data are from a variety of sources with a variety of precision levels (location, dates, etc.). It is also well documented in the species accounts included in Volume II Section B of the MSHCP that the precision of the individual data points were considered in the analysis conducted for the Draft MSHCP.

H²-101 See Response H²-100.

H²-102 The Draft MSHCP, Section 2.1.1 acknowledges the limitations of the wetlands data. The conservation analyses conducted for each of the species that are associated with wetland habitats consider all relevant available data.

H²-103 This comment merely states the sources of soil data noted in the Draft MSHCP and Draft EIR/EIS. It is assumed that the commentor is again taking issue with the age of the soils data. If so, the following reiteration of a portion of Response H²-46 also applies: With regard to soils data, discernable natural changes in soil composition and characteristics occur over extremely long periods of time, greatly exceeding 30 years. Therefore, the fact that some of the soils data used in some of the species analyses for the Draft MSHCP date back 30 years, has no material effect on those analyses.

H²-104 This comment merely states the source and date of vegetation data used in the Draft MSHCP, as noted in the Draft MSHCP and Draft EIR/EIS. If the purpose of this comment is to reiterate the commentor's previous comments related to the age of the vegetation data, see Response H²-98.

H²-105 See Response H²-98.

H²-106 This comment summarizes information contained in the Draft MSHCP regarding the limitations of the vegetation data base. It is assumed that the commentor is reiterating concerns raised regarding the vegetation database. If such is the case, see Response H²-98.

H²-107 This comment summarizes information contained in the Draft MSHCP regarding the limitations of the vegetation data base. It is assumed that the commentor is reiterating concerns raised regarding the vegetation data base. If such is the case, see Response H²-98.

H²-108 See Responses H²-47 and H²-100.

H²-109 This comment refers to selected language from a discussion of potential impacts to San Diego button celery. To understand the actual meaning of the language, it is important to note the broader context of the discussion, which is presented as follows:

No known localities would be within the area subject to Take Authorization. Although no Take of known occurrences would occur as part of the MSHCP, certain areas located outside the MSHCP Conservation Area may contain vernal pool Habitat that could support this species. Precision is lacking within the vegetation database and, therefore, the precise level of impact cannot be quantified at this time.

The MSHCP acknowledges that the landscape level of planning being undertaken for the 1.26 million-acre Plan Area cannot provide sufficient evidence to support a conclusion that all potential occurrences of this plant species are within the MSHCP Conservation Area, particularly since the ability to observe the species is seasonally limited. Therefore, in an attempt to fully disclose the potential impacts to this species, the EIR/EIS acknowledges that there is a possibility for the species to occur outside of the areas anticipated to be conserved. However, the MSHCP has determined that, based on Conservation of sufficient habitat resources within the MSHCP Conservation Area, in addition to MSHCP Policies (this species occurs in association with vernal pools, which are subject to additional survey requirements both within and outside of the Criteria Area) that the species is considered to be adequately conserved.

H²-110 The commentor has restated information contained in the Draft EIR/EIS. The referenced statement supports the determination that impacts to non-covered species are considered to be significant and not mitigated, for the very reason that adequate data were not available and could not be obtained to support coverage for these non-covered species. Therefore, it is not clear what comment is represented by the reiteration of this factual information.

H²-111 The analysis contained in the Draft MSHCP uses the best scientific and commercial data available to support its conclusion of coverage for the non-listed Covered Species (see Responses G-10, H²-93 through H²-122 and N³-1 through N³-3; see also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003). For purposes of full public disclosure under CEQA and NEPA, the Draft EIR/EIS acknowledges that there may be occurrences of species that are not contained in the existing species database. However, this acknowledgment does not undermine the analysis and conclusions of the Draft MSHCP, since the analysis included a variety of factors, including but not limited to species occurrence data to support coverage of species. It is well documented that the limitations of the species occurrence data were a consideration in the analysis conducted for the Draft MSHCP.

H²-112 See Responses H²-101 and H²-111.

H²-113 The factual information from the Draft MSHCP that the commentor reiterates explains the purpose for Narrow Endemic Plant Species policies. It is well documented that the limitations of the species occurrence data were a consideration in the analysis conducted for the Draft MSHCP. For the identified Narrow Endemic Plant Species, the policies contained in Section 6.1.3 of the Draft MSHCP provide for collection of site specific data that could not feasibly be compiled for the entire 1.26 million-acre Plan Area in advance of the regional planning effort. The proposed policies provide a rational process for collecting additional data and incorporating those data into the flexible Reserve Assembly process to achieve Conservation within the most efficient reserve design possible.

H²-114 See Response H²-113. The need for surveys and rationale for approach to coverage for the species that are addressed in the section of the MSHCP from which this comment quotes are the same as for the Narrow Endemic Plant Species.

H²-115 The commentor confuses the dependencyrelationship between the vegetation map and the 1995 report prepared by PSBS/KTU&A. It is not the vegetation map that relies on the report, but rather it is the report that is partly reliant on the vegetation map. At the time of publication of the 1995 report, the then Advisory Committee recommended that additional groundtruthing and refinements should be completed to verify the information in the 1995 report. However, in the MSHCP Planning Agreement, the then Advisory Committee recognized that the MSHCP would be based on the best available scientifically and commercially available data which includes the MSHCP vegetation map. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-116 Regarding the reference to the Wildlife Agencies' comments on the vegetation map, the Draft MSHCP, Section 3.1.6 identifies considerations made for development that has occurred since the vegetation database was compiled:

Areas developed since the MSHCP vegetation map was prepared (1995) were defined using the Existing Land Use coverage developed in 1999 for the RCIP. The Existing Land Use coverage is based on 1998 aerial photography and 1997 SCAG database. Acreage estimates were determined for areas that appear to have been developed since the MSHCP vegetation map was prepared and these acreages were deleted from the overall acreage totals.

In addition, Section 5.5.3 of the MSHCP identifies the process through which the vegetation database will be continually updated through the life of the Plan. An initial task of the Biological Monitoring Program will be to conduct an inventory of the distribution and abundance of Vegetation Communities and wildlife Habitats to create a baseline Vegetation Community GIS layer and map and updates will be made every eight years. In addition, the criteria-based approach to Reserve Assembly as described in the Draft MSHCP is clearly directed at responding to project-specific information as it is brought forward during the individual project review process. The MSHCP Monitoring and Management Plan and the annual reporting process also call for incorporation of new data into the MSHCP throughout the life of the Permit.

Regarding the reference to the CNPS letter dated March 21, 2002, the commentor has taken the referenced language out of context. The entirety of the CNPS comment should be noted for the record:

We are greatly concerned about the quality of the material presented within the proposed plan. There are a large number of errors and inconsistencies between sections that should be corrected before the release of the draft. (Emphasis added)

The inconsistencies between sections of the March, 2002 Preliminary Draft MSHCP have been corrected in the Draft MSHCP. See also Scientific Review Panel Correspondence Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-117 The Lead Agencies do not agree that the statements indicated in the comment accurately reflect discussions that occurred during the referenced meeting. With respect to use of best scientificallyand commercially available data, see Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-118 The MSHCP was designed to cover the broadest range of species possible to provide the greatest certainty to property owners and Permittees that no new regulation will impose additional burdens to maximize the benefits of the land conserved. As stated in Section 2.1.4 of the Draft MSHCP, the initial list of species considered for Conservation included 247 species. These 247 species were those for which the Wildlife Agencies, working with the MSHCP Advisory Committee initially determined could potentially exist within the MSHCP Plan Area, based on the best available species occurrence data and habitat information at that time. Early in the planning process, it was determined that sufficient information did not exist for many of these species to proceed with conservation planning. The initial list of 247 species was reduced to 165 species as a result of extensive analysis of all 247 species conducted as a part of the August 9, 1999 Draft MSHCP Proposal prepared by DUDEK. The list was further refined to 146 species as the MSHCP planning process proceeded and research determined that sufficient information needed to proceed with conservation planning could not be obtained for certain species. Information used to determine species coverage throughout the Draft MSHCP planning process represents the best scientific and commercial data available for those species.

H²-119 See Responses H²-11, H²-85, H²-86, H²-90 and H²-96 through H²-117.

H²-120 Inputting the Assessors Parcel number into the web site will tell a property owner if his/her property is in the Criteria Area and within a Cell. This effort should take a matter of minutes and can be done today. See Responses H²-11, H²-85, H²-86, and H²-90.

H²-121 The Lead Agencies believe that the MSHCP and the Draft EIR/EIS fully comply with applicable state and federal law. See Response H²-93 regarding compliance with CEQA. The data used in the Draft EIR/EIS for the MSHCP is the most recent and accurate information available for the entire Plan Area and accordingly, satisfies NEPA's requirement that the Lead Agencies provide "a full and fair discussion of significant environmental impacts." See Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

The Lead Agencies disagree with the commentor's conclusion that the adaptive management and vegetation data base update provisions of the MSHCP are an improper deferral. State CEQA Guidelines section 15146, cited in the comment, does not address deferral of analysis. Instead, it states that the "degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR." Additionally, case law holds that deferral of more detailed analysis is legitimate "where practical considerations prohibit devising such measures early in the planning process (e.g., at the general plan amendment or rezone stage), the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval... [Citation.]" (Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1029.)

The adaptive management and vegetation data base update provisions of the MSHCP are not an improper deferral but instead are a means by which newly discovered science may be included in the MSHCP Conservation Area development process. Considering the amount of time that it may take to assemble the MSHCP Conservation Area, the County and the Wildlife Agencies determined that it was impractical to rely on vegetative and species data created in the beginning stages of the conservation planning process.

Additionally, the Draft EIR/EIS states that the management and monitoring programs incorporated in the MSHCP would be implemented to mitigate to the extent feasible any significant effects remaining after application of the minimizing measures incorporated in the MSHCP. (Draft EIR/EIS, p. 4.1-159.) These "self-mitigating" project components avoid, minimize, rectify, reduce or compensate for environmental impacts in conformity with NEPA. (40 CFR 1508.20; 40 CFR 1502.16(h).) Consistent with NEPA regulations, USFWS' record of decision will also state whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. (40 CFR 1505.2(c).)

H²-122 This comment purportedly restates information contained in the Draft MSHCP, the Draft IA and the Draft EIR/EIS regarding the requirements and the process through which the Permittees will receive Take Permits. No further response is required.

H²-123 The documents speak for themselves and no further response is required.

H²-124 See Responses H²-23, H²-64, H²-65 and H²-270. Although projects with vested rights may not be subject to the provisions of the MSHCP, an MSHCP consistency review must still occur when Development is proposed.

H²-125 See Response H²-270.

H²-126 The project description is adequate for CEQA. See Responses H²-3, H²-11 and H²-64 through H²-125.

H²-127 The Draft EIR/EIS clearly identifies impacts to mineral resources. Approximately 19,500 acres in western Riverside County have been identified as State-designated Mineral Resource Zones (MRZs). The Draft EIR/EIS specifically states that "[a]ctive mineral extraction areas will not be incorporated into the Conservation Area." (Draft EIR/EIS, p. 5.1-8.) However, under the MSHCP, about 4,300 acres of land designated as MRZs that are not permitted for mineral extraction operation, will be incorporated into the MSHCP Conservation Area. (Draft EIR/EIR, p. 4.2-16.) This represents approximately 22 percent of MRZ land within the proposed Plan Area. Since 10,900 acres of MRZ lands would remain available for use, the proposed MSHCP will not result in the loss of a locally important mineral resource recovery site, as delineated on a General Plan or other land use plan. (Ibid.) However, the Draft EIR/EIS does recognize that the loss of any portion of MRZ, when considered with similar losses that may result from the implementation of other projects, such as the assembly of the existing reserves, represents a cumulatively significant and unavoidable impact. (Draft EIR/EIS, p. 5.1-8.)

H²-128 The vegetation map used in the analysis for the Draft MSHCP identifies mining activities as developed, disturbed land. Additional data regarding developed, disturbed lands that are not depicted on the vegetation map, but were considered in the MSHCP Criteria, were collected in 1999. Conservation sought under the MSHCP Criteria is based on conservation value, as described throughout the Draft MSHCP. The Criteria do not propose Conservation on lands within the developed, disturbed vegetation category, but may propose Conservation within Cells that contain some developed, disturbed land. However, the areas proposed for Conservation within those Cells are those areas that are not considered to be developed or disturbed.

H²-129 It is unclear how excluding the commentor's Pacific Clay Property from the Criteria Area would be consistent with the Draft EIR/EIS or would create a more accurate project description.

H²-130 The commentor lists the Project Objectives set forth in the Draft EIR/EIS on page 1.2-4. The commentor further states that the MSHCP fails to meet the objectives, and that this failure renders the project description in the Draft EIR/EIS inadequate. The Lead Agencies maintain that the Project Objectives stated in the Draft EIR/EIS are indeed those used to develop the MSHCP, and disagree with the commentor's opinion that the MSHCP fails to meet the objectives. The commentor makes more detailed statements in subsequent comments, which are answered below as outlined in the comment letter.

H²-131 The MSHCP is designed to fulfill conservation objectives, which are based upon the requirements of FESA and the NCCP Act. See Response H²-130. The proposed MSHCP meets all project objectives identified in Section 1.2.2 of the Draft EIR/EIS. Specifically, the proposed MSHCP will:

• Assemble a criteria-based MSHCP Conservation Area that will assist in the Conservation of Covered Species while allowing flexibility in the assembly and location of the MSHCP Conservation Area. (See Responses H²-52, H²-193, and H²312.)
• To the maximum extent possible, streamline development authorizations under the federal and State Endangered Species Acts. (See Responses H²-140 through H²-177.)
• Through regional habitat planning, conserve habitat in functional blocks, rather than on a piecemeal ad hoc basis. (See Responses H²-22, H²-231, and H²-287.)
• Provide Take Authorization for the transportation, infrastructure, housing and employment base needed to accommodate projected growth in western Riverside County. (See Responses H²-36, H²-132, H²-140, H²-194, and H²-195.)
• Coordinates and maximizes the value of expenditures of limited public and private funds in such a manner that assures assembly and maintenance of a MSHCP Conservation Area that conserves the Covered Species pursuant to state and federal law. (See Responses H²-36, H²-50, H²-72, H²-140, H²-148, H²-305, and H²-352.)
• Develop a fee-based funding plan that will generate sufficient revenue to contribute to the MSHCP Conservation Area's funding needs. (See Response H²-224.)
• To the maximum extent practicable, eliminate surprises by providing certainty to Permittees and third parties that the Take Authorization will cover additional species that may be listed while the Permits are in effect. (See Responses H²-132 and H²-194.)
• To the extent legally possible, provide assurances that private parties will not be required to mitigate biological impacts except as specified in the Plan. (See Response H²-194.)
• Expand the conservation value of existing Public/Quasi-Public resources for the benefit of Covered Species.
• Comply with all applicable federal and State laws and constitutional requirements.

The MSHCP clearly provides a Criteria-based MSHCP. That system has been designed to conserve Covered Species while allowing flexibility in the system and to landowners through the HANS and related processes. The RCA is necessary for a plan of this scope to be efficiently and effectively implemented. See Responses H²-132 through H²-139.

H²-132 A plan of this size, scope and duration will necessarily involve several entities and processes to ensure compliance with the MSHCP. The RCA and the HANS processes have been designed to be straight-forward, unburdensome and timely processes that run parallel to existing development application processes. These processes will not create an onerous bureaucracy. Local jurisdictions will implement the MSHCP and process development applications through normal processes. The MSHCP creates a more biologically effective habitat and species conservation plan, and is more equitable and less expensive, than providing mitigation on a project-by-project basis. The Lead Agencies believe that there are adequate assurances and safeguards in the MSHCP to ensure Reserve Assembly. See Responses K-55and H²-1.

H²-133 See Responses H²-28 and H²-32. The MSHCP will does not impose regulatory requirements greater than those existing prior to issuance of the Permits. (MSHCP, § 6.2) Moreover, private landowners and developers benefit from the MSHCP because it establishes Take Authorization for Covered Species; this modified permitting process will reduce uncertainty about the future and eliminate the duplication of effort that often occurs when projects are reviewed and permitted piecemeal by the Wildlife Agencies. In the absence of the MSHCP, development projects will be required to comply with the mandates of the FESA, CESA, and the NCCP Act of 2001. Accordingly, the MSHCP's streamlined process relieves existing regulatory burdens on property owners. (See Draft MSHCP, p. 4-2.) It should be noted that plan checks and geotechnical studies are part of the project processing requirements. Additionally, approval of a conditional use permit is not a ministerial action.

H²-134 This comment purports to restate portions of Section 6.6 of the MSHCP and no further response is required.

H²-135 See Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-136 See Response H²-270.

H²-137 See Response H²-118. As noted in the Draft MSHCP, the basis for determining areas desirable for Conservation did not rely solely on data indicating the presence of currently listed species. Factors considered in identifying areas desirable for Conservation included vegetation type, species occurrence, connectivity and overall configuration (patch size, Edge Effects, fragmentation, etc). All of these factors were weighed in evaluating the MSHCP Plan Area.

H²-138 The Criteria-based system described in the Draft EIR/EIS and the MSHCP will assist in the Conservation of Covered Species while allowing flexibility in the assembly and location of the MSHCP Conservation Area. For example, the HANS, Criteria Review and Criteria Refinement components contain maximum flexibility in order to ensure the timely, orderly assemblage of MSHCP Conservation Area. Moreover, the HANS process is intended to be a collaborative process. See Responses H²-93 through H²-111 and H²131 through H²-137.

H²-139 See Response H²-47. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-140 See Response H²-132.

H²-141 This comment simply summarizes the duties of the RCA which are explained in detail in the Draft EIR/EIS on pages 2.10-1 through 2.10-7 and no further response is required. The MSHCP acknowledges the experimental nature of Adaptive Managment. See Response H²-47.

H²-142 The MSHCP does not create a new "super-bureaucracy" or any "sub-bureaucracies." See Responses H²-132 and H²-140. The Funding Coordination Committee ("FCC") is designed to assist in implementing the MSHCP by providing input on local funding priorities and local MSHCP Conservation Area acquisitions. The FCC is described more fully in Section 2.10 of the Draft EIR/EIS and on pages 6-77 and 6-78 of the MSHCP. See Responses H²-120 and H²-132.

H²-143 This comment purportedly reflects what is contained in the Draft EIR/EIS. Accordingly, no further response is required.

H²-144 This comment purportedly reflects what is contained in the Draft EIR/EIS. Accordingly, no further response is required.

H²-145 This comment purportedly reflects what is contained in the Draft EIR/EIS. Accordingly, no further response is required.

H²-146 This comment purportedly reflects what is contained in the Draft EIR/EIS. Accordingly, no further response is required.

H²-147 This comment purportedly reflects what is contained in the Draft EIR/EIS. Accordingly, no further response is required.

H²-148 See Response H²-134. The MSHCP provides a streamlined process that necessarily involves several entities to ensure compliance with state and federal laws. To ensure that the requirements of the MSHCP and the IA are properly met, a joint project/acquisition review process will be instituted by the RCA. This process does not in any way limit or "usurp" the County's or Cities' local land use authority, prevent the County or a City from approving a project or change the provisions of the HANS process described in Section 6.1.1 of the MSHCP. Instead, the purpose of the Joint Project/Acquisition Review Process is to allow the RCA and the Authority's Director to facilitate and monitor implementation of the MSHCP to ensure compliance with all applicable state and federal laws. All proposed discretionary development projects within the Criteria Area will be subject to review under the HANS process and monitored through a uniform computerized tracking system. The issuance of a grading permit or site preparation permit for an individual single family home or mobile home on an existing legal lot will not be subject to review under the HANS process but will be subject to review under the procedures described in the Expedited Review Process for Single-Family Homes or Mobile Homes To Be Located on an Existing Lot Within the Criteria Area. This HANS process will not be construed as a limitation on the County's or the Cities' ability to approve or deny a development application except that a project consistent with this HANS process may not be denied solely because a development application does not comply with the MSHCP Conservation Criteria. See Response H²-120, H²-13 and H²-142.

H²-149 The comment purportedly summarizes the joint review process procedures contained in the MSHCP. No further response is required.

H²-150 It is speculative to state that a backlog will develop of applications to review. The time frames established on Section 6.0 of the MSHCP clearly set forth the actions expected of the RCA staff. Moreover, Local Permittees will submit the applications to the RCA as soon as they are received. Since it already takes local jurisdictions time to process and review such applications, no additional time will be added.

H²-151 The MSHCP will not usurp or replace local control. (See Response H²-150.) This is a very important point for many of the stakeholders and thus, is reflected in the MSHCP. Given this fact, there is no way that any assurance can be given that all of the Local Permittees will handle projects in an identical manner, any more than they do today when processing development applications. An absolutely uniform approach would require elimination of local control.

H²-152 Although proposed development projects within the Criteria Area will need to be reviewed in order to ensure compliance with the MSHCP Criteria, the Lead Agencies disagree that such review or the administrative review process itself is necessarily "onerous" or "burdensome". Additionally, the purpose of the HANS process is to establish procedures by which this review will occur and to appropriately compensate the property owner if property is in fact needed for inclusion in the reserve. The Lead Agencies disagree that there will be any delays in processing "development entitlements" as the HANS process contemplates that such entitlements may be processed concurrently.

H²-153 See Response H²-152. Only proposed development projects within the Criteria Area which is approximately 310,000 acres in size will be subject to review under the HANS process. Proposed projects "adjacent" to the Criteria Area would not be subject to such review. The HANS process provides for an initial 45 day review period. If it is determined that none of the property covered by the proposed development project is needed for inclusion in the MSHCP Conservation Area, then the project may proceed through the normal development review process. If it is determined through the 45 day initial review period that all or part of the property is needed for inclusion in the MSHCP Conservation Area, then a 120 day period for the negotiation of terms and incentives commences. In the event the parties are unable to reach agreement during this 120 period, a conflict resolution may be initiated which provides for a 90 day appraisal review period for conflicts concerning the value of the property needed for inclusion in the MSHCP Conservation Area; and 90 day mediation and 180 day arbitration periods for conflicts involving proposed development options including the application of incentives as well as the application of the MSHCP Criteria. Upon completion of these time periods, the property owner will be compensated for property needed for inclusion in the MSHCP Conservation Area through the use of incentives and/or pursuant to the terms of a purchase agreement which has been entered into by the property owner.

H²-154 See Responses H²-152 and H²-153. The comments indicated by the commentor are generally accurate statements concerning the HANS process.

H²-155 The comments indicated by the commentor are generally accurate statements concerning the HANS process.

H²-156 See Responses H²-152 and H²-153. The Lead Agencies strongly disagree that the HANS process set forth in the MSHCP falls short of its enunciated goals or that it "undermines an incentive-based MSHCP program".

H²-157 See Response H²-153. The Lead Agencies strongly disagree that the time frames set forth in the HANS process are unworkable or illegal. Additionally, the HANS process does provide assurances that property owners will be compensated for property needed for inclusion in the MSHCP Conservation Area and/or that they will be able to develop the property subject to the receipt of project approval.

H²-158 The Lead Agencies disagree that the 45-day initial application review process set forth in HANS is misleading in light of the time frames set forth in the Joint Project/Application Review Process conducted by the Regional Conservation Authority. The provisions of the Joint Project/Application Review Process specifically indicate that this process shall not in any way "change the provisions of the HANS process described in Section 6.1.1". See page 6-78 of the Draft MSHCP. The additional comments of the commentor concerning the time frames set forth in the Joint Project/Application Review Process are accurate statements.

H²-159 The commentor does not accurately characterize the interaction between the HANS Process and the Joint Project/Application Review Process. Both processes will occur concurrently.

H²-160 Mediation is only "required" if the conflict resolution process is initiated by the property owner or the County or City. Additionally, contrary to the comment, the RCA is not a participant in the mediation. Furthermore, the 30 and 90 day time periods for consultation with the Wildlife Agencies and within which to hold the mediation may only be extended with the consent of the property owner.

H²-161 With respect to the valuation of property, the conflict resolution process would only be initiated by the property owner because only the property owner would dispute the contents of the County's or City's appraisal. Additionally, the commentor misrepresents the appraisal process. The RCA does not participate in the appraisal process set forth in HANS. Additionally, it is not whether the County or City "disagrees" with the second appraisal that a third appraiser is retained to review both appraisals. This review is only required when there are discrepancies between the appraisal prepared by the County or City and the appraisal prepared by the property owner.

H²-162 The commentor again misrepresents the RCA's involvement in the conflict resolution process. The RCA does not participate in the arbitration. Additionally, the 180 day time period within which to conduct the arbitration may only be extended with the consent of the property owner.

H²-163 The Lead Agencies disagree that it can take more than 2 ½ years to complete the HANS process. A more accurate time frame would be 1 ½ years to 2 years if the conflict resolution process were initiated and mediation and arbitration are pursued.

H²-164 Acquisition of property is not limited to situations where all of the property is necessary for inclusion in the MSHCP Conservation Area. Although negotiations will focus on incentives in instances where only part of the property is needed for inclusion in the MSHCP Conservation Area, this does not preclude acquisition through monetary compensation if the incentives are not adequate to fully compensate to the property owner for the fair market value of the property. The Lead Agencies strongly disagree that the MSHCP in any way "forces" property owners to utilize incentives or that it prohibits development from moving forward to hearing for consideration by the appropriate hearing body.

H²-165 Property owners are not in "deep freeze" during the HANS process. As previously indicated, proposed development projects can and will be processed concurrently with the HANS process. As the commentor should well know, property owners are not allowed to develop until their projects are approved by the County or City. It is not correct to say that they will not be allowed to develop until the HANS process is completed. Additionally, it will be the County or City, not the property owner, who is "burdened" with having to prove that the MSHCP should be amended if funding is not available to acquire the property. In response to the commentor's concerns about the amendment process and the resulting Section 7 consultation and to concerns raised by the U.S. Fish and Wildlife Service, the following revisions on pages 6-11 through 6-16 will be made the HANS process to provide clarification on this issue.

"The County or City will confer with the property owner when drafting the proposed amendment to the MSHCP, and use its best efforts to insure completion of the amendment within this one (two, three or four) year time period or any longer period of time agreed to by the parties. Because the U.S. Fish and Wildlife Service will must conduct an internal formal consultation under Section 7 of the federal Endangered Species Act for any such amendment to the MSHCP, the U.S. Fish and Wildlife Service will provide a draft copy of its internal biological opinion for review and comment to the County or City prior to approval or denial of a the permit amendment. a Section 7 Consultation in connection with their consideration of the proposed amendment. As Part of that Section 7 consultation, the U.S. Fish and Wildlife Service will evaluate the effects on listed species covered by the MSHCP as amended, and will specifically address any Take associated with the property owner's proposed Development of the property. The County or City will share the draft biological opinion with the property owner and provide any comments from the property owners along with the County's or City's comments to the U.S. Fish and Wildlife Service. The property owner will have an opportunity to meet and confer with the U.S. Fish and Wildlife Service with regard to the effects of any proposed Development of the property the proposed amendment. Any conditions imposed on the proposed Development through the biological opinion will be subject to property owner approval, even if failure to approve such conditions results in a jeopardy opinion and denial of the amendment to the MSHCP to remove the property from the Criteria Area."

It should also be noted that there would be no "second bite at the apple" as indicated by the commentor. As acknowledged by the commentor in this comment, the MSHCP specifically indicates that if suspension or revocation of the Permits occurs, "future Development applications will no longer be subject to the MSHCP Conservation Criteria". Consequently, should the Permits be suspended or revoked, any subsequently submitted development application on the property originally determined to be necessary for inclusion in the MSHCP Conservation Area, would not be subject to the MSHCP Conservation Criteria. Thus, no "second bite at the apple" would or could occur.

H²-166 See Responses H²-152, H²-153, H²-157, H²-160, H²-162, H²-163, H²-164 and H²-165. The Lead Agencies disagree that the MSHCP which includes the HANS and Joint Project/Application Review processes will not streamline the development process. Many projects located outside the Criteria Area which are occupied by listed species will be able to merely pay a mitigation fee and proceed with development. Under existing conditions, these projects would be required to obtain Take Authorization pursuant to either Sections 7 or 10 of the federal Endangered Species Act and/or pursuant to the California EndangeredSpeciesAct or the Natural Communities Conservation Act. Often times these processes can take years to complete. Additionally, proposed projects within the Criteria Area in many instances will only be subject to the 45 day initial review period because the determination will be made that the property will not be needed for inclusion in the MSHCP Conservation Area. The commentor has also indicated that the property owner will be required to shepherd the amendment process if the RCA,County or City does not use its best effort to insure completion of the amendment. The "best efforts" language was included because the County and Cities are unable to require the U.S. Fish and Wildlife Service to approve or deny the amendment within the time frame specified. Nor would the Service agree to be bound by a specified time frame within which to approve or deny the amendment. Additionally, it should be noted that the MSHCP and specifically the HANS process does not provide for the RCA to process this type of an amendment.

H²-167 The Lead Agencies strongly disagree that the MSHCP or the HANS process "wrests local land use control" from the County or any City or that the County or Cities will be "held hostage" to the RCA and the Wildlife Agencies. Section 6.6.2 of the MSHCP specifically states, "However, the Regional Conservation Authority shall not limit County or City local land use authority, or prevent a Permittee from approving a Discretionary Project." Additionally, as with any other habitat conservation plan, the Wildlife Agencies always have the ability to revoke Take Authorization if these agencies believe that the plan is not being properly implemented.

H²-168 Government Code section 65858, limiting moratoria to a maximum two-year period, does not apply to the MSHCP because the HANS process is not a moratorium. See Response H²-41. Also, the reference to First English Evangelical Lutheran Church v. County of Los Angeles, (1987) 482 U.S. 304 is not applicable. The First English case specifically limited its ruling by stating that the discussion of a temporary takings does not even apply "in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like," which are properly a matter of state property law. (Id. at p. 321) Moreover, in First English, the ruling was specifically premised upon the fact that a takings had already been established by a lower court, therefor the rule of the case only establishes what remedy is appropriate. (Id. at pp. 312-313) Indeed on remand, the lower court found that no taking had occurred. (First English Evangelical Lutheran Church v. County of Los Angeles, (1989) 210 Cal.App.3d 1353.) In the present case, the First English cases are inapplicable because there is no taking.

H²-169 The purpose of the Criteria Refinement Process (CRP) is to provide flexibility to property owners who wish to pursue development projects that are determined to be inconsistent with the Criteria. The CRP is not a "bureaucratic hurdle," as the comment states, but rather a process that can provide an applicant for a development project a mechanism to amend the Criteria for their benefit, providing that the necessary findings can be met. Under no circumstances is a project applicant obligated to pursue a CRP. The CRP is intended to address situations where the landscape-level biological information can be supplemented with project specific information presented by an applicant in order to demonstrate equivalent or greater conservation value and acreage that is associated with the applicant's proposal, without subjecting the applicant to an amendment to the MSHCP.

H²-170 It is not clear what objection is raised in this comment since it merely restates information contained in the Draft MSHCP. It is assumed by the placement of the word "However" at the beginning of the sentence, that exception is taken to the fact that the CRP cannot be used in conjunction with the HANS process, or to eliminate portions of the Criteria Area. If such is the case, it should be noted that both the HANS process and Criteria Area reductions have different purposes and implications that are outlined in Sections 6.1.1 and 6.10 of the Draft MSHCP, respectively. See also Responses K-77 and H²-169.

H²-171 In response to the reference to "bad science", see Response H²-46. The Criteria developed for the Draft MSHCP are based on the best scientific and commercial data available. See Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

The commentor expresses concern that if, through site-specific biological studies, a property owner discovers that a property is "not suitable for conservation", that they burden would be on the property owner to provide alternative Conservation. As previously noted, conservation value has been determined based on a number of factors, including but not limited to vegetation coverage, species occurrence, soils composition, slope and elevation, in addition to reserve design considerations that include habitat block size, configuration and linkage. Therefore, the fact that a site-specific biology study indicates that, for example, species that are shown to occur in the MSHCP database were not determined to be present, or that site-specific vegetation mapping shows differences from the MSHCP database, would not necessarily lead to a determination that the property is "not suitable for conservation," because the proposed Conservation may relate to reserve design or other factors. However, if through a site-specific study, it is clearly demonstrated that the conservation value sought in the Criteria cannot be achieved because of the absence of resources, the substantial alteration to a linkage by offsite Development or other reasonable factors, then a Permittee could make a determination that Development within areas proposed for Conservation would not be inconsistent with the Criteria and would not rise to the level of a Criteria Refinement.

H²-172 The process referenced in this comment refers to cases where refinements to the Criteria are desirable to facilitate Reserve Assembly. To streamline the entire process and to meet the MSHCP's goal to provide a flexible mechanism, refinements to the Criteria may be made without the need to amend the MSHCP where the refined Criteria result in the same or greater conservation value and acreage to the MSHCP Conservation Area. This allows for flexibility in the implementation of the MSHCP. See Responses H²-120 and H²-132.

H²-173 This comment purportedly restates information contained in the Draft MSHCP and no further response is required.

H²-174 This comment purportedly restates information contained in the Draft MSHCP and no further response is required.

H²-175 The MSHCP minor and major amendment processes are straight-forward and potentially applicable in only narrow circumstances. (See MSHCP, §§ 6.5, 6.10.) Of course these provisions do not exist now because there is no Plan to have to amend. See Response H²-140.

H²-176 This comment purportedly restates information contained in the Draft MSHCP and no further response is required.

H²-177 The commentor's assertion that "every aspect of MSHCP implementation gives the Wildlife Agencies final say" is incorrect. Concurrence is required by the Wildlife Agencies is required in very limited circumstances, however in no instances do the Wildlife Agencies have final say over land use decisions. The joint review process found in Section 6.6 of the MSHCP merely provides that the Wildlife Agencies will receive copies of project applications proposed within the Criteria Area. As explained in Response H²-140, compared to the current process under which a property owner must deal with local, state and federal agencies to address endangered species issues, the MSHCP provides a one-step approach.

H²-178 See Response H²-41.

H²-179 See Response H²-41.

H²-180 See Response H²-41.

H²-181 See Response H²-41. The MSHCP will not preclude the County's and Cities' ability to comply with the requirements of state law. The County and the Cities will comply fully with all the requirements of these Acts when processing projects subject to the provisions of the MSHCP.

H²-182 See Response H²-165. CEQA review of proposed projects will commence when the application for the project is submitted. The initial review period is 45 days and may only be extended with the consent of the property owner. Consequently, the time frames referenced by the commentor will not be exhausted.

H²-183 This comment purportedly restates information contained in the Draft MSHCP and no further response is required.

H²-184 This comment purportedly restates information contained in the Draft MSHCP and no further response is required. The likely range of values may exceed $100,000.

H²-185 This comment purportedly restates information contained in the Draft MSHCP and no further response is required.

H²-186 This comment purportedly restates information contained in the Draft MSHCP and no further response is required.

H²-187 See Response H²-35. An independent estimate of the land costs will be included in the nexus study required by the Mitigation Fee Act as set forth in Government Code Sections 66000 et seq. The nexus study will provide a basis for establishing the Local Development Mitigation Fee amount. The MSHCP focuses Conservation in areas that have core habitat value, value as linkage or contain specific habitat types. Logically most of these lands will not exist in areas that have been subdivided and only in a very unusual situation would they exist on lands that have been subdivided and improved as single family residential lots. Therefore, in only a few areas would land values approach those offered by commentor.

Based on acquisitions completed in the past two years, typical land values have averaged $13,000 (see Appendix B of the Draft MSHCP) per acre. The majority of the lands to be acquired will be rural lands with minimum infrastructure. As the Plan acknowledges, land values will vary both depending on location and over time. Section 8.6 of the Draft MSHCP discusses adequacy of funding.

H²-188 See Response H²-187 for response on a nexus study.

H²-189 The Density Bonus program was suggested by the development community as a component of an incentive program to be implemented under the County's Draft General Plan. The Density Bonus program is a potential funding source for the MSHCP as well as for other local infrastructure that would offset the local impacts of the increased density. The commentor notes in Comment H²-187 that land values for improved residential lots can exceed $100,000. This would seem to create a significant financial advantage to a developer to utilize the Density Bonus program to obtain an additional lot through an increase in density for $3,000 to $5,000 plus the incremental infrastructure costs. Likewise, density transfers from conserved properties would appear to have significant value if lot values are as offered by the commentor. See Responses H²-15 and H²-304.

H²-190 The Density Bonus program under the General Plan is based on meeting criteria involving quality of the project and payment of a fee. Success of the program lies with the development community. As discussed in Response H²-189, there can be significant financial advantage to the Program.

H²-191 Multiple funding sources are utilized to fund the implementation of the MSHCP. Additional funding sources that will likely contribute to the Plan have been identified but not included in the projections. A nexus study is currently being finalized. The MSHCP offers many incentives not the least of which is the simplicity of obtaining Take Authorization outside the Criteria Area. Within the Criteria Area, property owners will benefit from either being able to develop their property or be fairly compensated for Conservation of their property.

H²-192 The Wildlife Agencies will have reduced involvement in development review in western Riverside County compared to what they have today. It is not anticipate that additional staff or other resources are required except as discussed under Monitoring Program. The costs are shown in Appendix B of the Draft MSHCP. See Response H²-39.

H²-193 See Responses H²-93 through H²-122, H²-136 and H²-166. The commentor ignores the benefits to property owners both inside and outside the Criteria Area in terms of a more predictable development process.

H²-194 See Response H²-177. The MSHCP provides "no surprises" assurances to the extent allowed by Federal and State law. The Plan provides federal and State Take Authorization for public and private projects in the Plan Area who pay fees and who otherwise comply with the requirements of the Plan. In conjunction with this authorization, the Service and DFG will provide "no surprises" assurances. (See IA, §§ 4.3(C) and 15.3; MSHCP, § 6.8.1; see also 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5).) Unforseen Circumstances leading to the need for further conservation and mitigation measures are not the responsibility of the Permittees. (See ibid.) The Wildlife Agencies have the burden of proof to show otherwise.

H²-195 The No Surprises Assurances are only applicable if the Permittees, Participating Special Entities and Third Parties Granted Take Authorization are in compliance with the provisions of the MSHCP. If a City elects not to participate in the MSHCP, then a review of the Plan would be required to determine what impact this decision would have on the Plan. The revocation and suspension provisions of the MSHCP are set forth in Section 23.5 of the IA. Unforseen and Changed Circumstances are described in detail in the MSHCP and the IA. (See MSHCP, § 6.8.) "Unforseen circumstances" means "any significant, unanticipated adverse change in the status of species covered under the MSHCP or in their Habitats or any significant unanticipated change in impacts of the MSHCP or in other factors upon which the MSHCP is based." (Draft MSHCP, p. 6-94.) The definition of "Unforseen circumstances" relates directly to changes in species status or habitats, or in impacts related to the MSHCP. Contrary to the comment, there is no indication from the language set forth above that the potential failure of a Participating City to "cooperate" with a Wildlife Agency would constitute an "unforseen circumstance." Further, the "unforseen circumstances" provision relates to responsibility for providing extra mitigation in case conditions change after the MSHCP is adopted. "Unforseen circumstances" does not directly provide the Wildlife Agencies with the authority to revoke take authorization based upon the failure of a city member to cooperate.

H²-196 The adaptive management approach is designed to provide maximum flexibility to implement conservation biological and other principles in conservation areas that actually "work on the ground". Adaptive management is thus not a stagnant process that may "fail." Instead, as circumstances on the ground dictate that different conservation measures be taken, such changes can actually be implemented. Under the federal "no surprises" policy, changed circumstances leading to the need for further mitigation or conservation measures not otherwise provided for in the applicable HCP are not the applicant's responsibility. Similarly, unforseen circumstances leading to the need for further conservation and mitigation measures are also ordinarily not the responsibility of the applicant. (See IA, § 4.3(C); MSHCP, § 6.8.1; see also 50 C.F.R. §§ 17.22(b)(5), 17.32(b)(5).)

H²-197 The duties and obligations of the Wildlife Agencies, including revocation and suspension provisions derive from State and Federal law rather than the MSHCP. (See 50 C.F.R § 17.22(b)(7), (b)(8); 14 CCR 783.7.) The Wildlife Agencies may only revoke Take Authorization if the Permittees fail to implement the terms and conditions in conformance with law. See Response H²-166.

H²-198 The purpose of the MSHCP is to convey Take Authorization under FESA and the NCCP Act to the Permittees. As noted in the comment, it is acknowledged in the Draft MSHCP that existing environmental laws and regulations in addition to FESA and the NCCP Act will continue to apply with the approval of the MSHCP and execution of the IA. Section 14.9 of the Draft MSHCP IA addresses the obligations and assurances to be provided by the USFWS related to FESA Section 7 consultations related to Covered Species and Covered Activities.

H²-199 See Response H²-198. Even without the MSHCP, developers would have to obtain Clean Water Act, Porter-Cologne Water Quality Control Act and other permits separately from Take Authorization from the Wildlife Agencies. The Take Authorization under the MSHCP offers the side benefit of streamlining Section 7 consultations through consistency requirements outlined in Section 14.9 of the IA.

H²-200 See Responses H²-23, H²-28, H²-34, H²-54, and H²-165.

H²-201 The Service must find that the MSHCP complies with the requirements of FESA prior to Permit issuance and release of the Record of Decision.

H²-202 The comment is correct, although a landowner may also obtain authorization to take a listed animal, in certain circumstances, through the FESA Section 7 process.

H²-203 The comment purports to restate case law and no further response is required.

H²-204 See Response H²-27. The MSHCP does not prohibit development of 153,000 acres of private property. The MSHCP is a plan designed to protect habitat lands for listed and unlisted species occurring in western Riverside County in order to mitigate for impacts associated with regional infrastructure/improvements and private development. 153,000 acres in the Criteria Area, not the Conservation Area, is the amount of land to be conserved by the Permittees as their share of the total mitigation obligation. The "occupied" status of lands within particular areas is set forth in Section 3.3 of the MSHCP and in related biological documentation.

The comment ignores the issuance criteria for HCPs that requires the Service to make a finding that the Plan not threaten the continued existence of a wildlife or plant population. (See Section 10 Handbook, p. 7-1.) The comment further ignores that, in considering an HCP, the Service must engage in an "internal Section 7 consultation" to ensure that the action it is taking (namely, issuing a take permit) does not jeopardize the continued existence of any listed federal species. Thus, rather than ignore the potential effects of listed federal plant species, the MSHCP provides Take Authorization for such species. Moreover, consideration of impacts on federally-listed plant and animal species is also required under CEQA and NEPA in the EIR/EIS. Also, to the extent plant species are listed under both CESA and FESA, state law prohibits the taking of such listed plant species. Finally, listed federal plant species remain eligible to be listed under state law. Inclusion of such plant species ensures that the MSHCP provides Take Authorization when and if the plants are listed under CESA.

H²-205 The comment seems to suggest that restrictions on habitat modification are prohibited under CESA. The commentor refers to a California Attorney General Opinion that concluded that habitat modification does not constitute "take" under CESA. This is a different issue than that being addressed in the MSHCP/NCCP, which is to provide adequate conservation to allow the issuance of a NCCP permit. The MSHCP/NCCP is not a CESA incidental take permit under Fish and Game Code section 2081. It is a planning document pursuant to which CDFG will grant "Take Authorization" for otherwise lawful actions in exchange for the assembly and management of the MSHCP/NCCP Conservation Area. (Draft MSHCP, p. 1-1)

The MSHCP/NCCP's habitat-based approach is consistent with, and does not violate, CESA because it focuses on species protection by preserving their habitat. CESA specifically states that it "is the policy of the state to conserve, protect, restore, and enhance any endangered species or any threatened species and its habitat and that it is the intent of the Legislature, consistent with conserving the species, to acquire lands for habitat for these species." (Fish & Game Code, § 2052; emphasis added.) "Conserve" is further defined by Fish and Game Code section 2061 to mean "the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. These methods and procedures include, but are not limited to, all activities associated with scientific resources management, such as research, census, law enforcement, habitat acquisition, restoration and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking." The methods outlined in the MSHCP/NCCP include measures to preserve and maintain the habitat essential for the conservation of endangered species, as authorized by CESA.

H²-206 The comment cites to Fish and Game Code section 2080(b)(2). No such section exists. If the intent is to cite to Fish and Game Code section 2081(b)(2), that section is inapplicable because the Permittees are not seeking a Section 2081 Take Permit under CESA.

The MSHCP/NCCP is based on the best scientific and commercial data available. See Responses H²-1, G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-207 For clarification, the Wildlife Agencies would issue Permits that grant Take Authorization to the Permittees which, in turn, would grant Take Authorization to individual developers as provided in the MSHCP.

H²-208 This comment purports to summarize federal law and no further response is required.

H²-209 This comment purports to summarize federal law and no further response is required. For clarification, the FESA gives the Secretary of the Interior discretion to, but does not require that she, list species as threatened or endangered.

H²-210 This comment purports to summarize federal law and no further response is required.

H²-211 This comment purports to summarize federal law and the Section 10 HCP Handbook and no further response is required.

H²-212 This comment purports to summarize federal law and no further response is required.

H²-213 This comment purports to summarize federal law and no further response is required.

H²-214 See Responses G-10, H²-93 through H²-122, H²-201 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-215 See Responses H²-46, H²-98 through H²-114 and H²-270.

H²-216 See Responses G-10, H²-46, H²-93 through H²-122, H²-201, H²-270 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-217 See Responses G-10, H²-11, H²-93 through H²-122, H²-201 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-218 The County is not aware of, nor has the extensive research conducted for the Draft MSHCP revealed the "plethora of new data" referenced in this comment. The Draft MSHCP was prepared using the best scientific and commercial data available. See Responses G-10, H²-93 through H²-122, H²-201 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003. In addition, the commentor misinterprets the purpose of data collection associated with the proposed Adaptive Management approach. It is not proposed that the Adaptive Management program will "update the science," but rather will provide a mechanism to continuously monitor the effectiveness of management actions and provide data that can be used to adjust management actions to address changing conditions in the field. Adaptive Management is not a "promise of future mitigation," it is a well-funded long-term Adaptive Management program to realize one of the goals of the MSHCP, to create a reserve system that will accommodate dynamic changes over time; changes that are related to both natural processes and human induced factors. Adaptive Management is considered to be the best approach for long-term management for multi-species planning.

H²-219 HCPs may be developed for listed, proposed, candidate or unlisted species. (Section 10 Handbook, pp. 4-1 et seq.) "The decision about what species to include in the HCP is always the applicant's." (Section 10 Handbook, p. 1-16, 4-1.[emphasis added]) However, "[t]he Services should explain to any applicant the benefits of addressing unlisted species in the HCP and the risks of not doing so, and should strongly encourage the applicant to include as many proposed and candidate species as can be adequately addressed and covered by the permit." (HCP Handbook, p. 4-1-[emphasis added].) As stated in the Section 10 Handbook, "There are also advantages in addressing unlisted species in the HCP (proposed and candidate species as a minimum), particularly those that are likely to be listed within the foreseeable future or within the life of the permit. Doing so can protect the permittee from further delays--e.g., having to revise the HCP and amend the permit--should species that were not listed at the time the original HCP was approved subsequently become listed. In addition, the 'No Surprises' policy...applies to listed as well as unlisted species if they are adequately addressed in the HCP." (Section 10 Handbook, p. 3-7; see also, p. 4-1.) See Response H²-118.

H²-220 See Response H²-219.This comment misrepresents the provisions of the HCP Handbook. According to the Handbook, HCPs may be developed for listed, proposed, candidate or unlisted species. (Section 10 Handbook, pp. 4-1 et seq.) "The decision about what species to include in the HCP is always the applicant's." (Section 10 Handbook, p. 1-16, 4-1.[emphasis added]) However, "[t]he Services should explain to any applicant the benefits of addressing unlisted species in the HCP and the risks of not doing so, and should strongly encourage the applicant to include as many proposed and candidate species as can be adequately addressed and covered by the permit." (HCP Handbook, p. 4-1-[emphasis added].) As stated in the Section 10 Handbook, "There are also advantages in addressing unlisted species in the HCP (proposed and candidate species as a minimum), particularly those that are likely to be listed within the foreseeable future or within the life of the permit. Doing so can protect the permittee from further delays--e.g., having to revise the HCP and amend the permit--should species that were not listed at the time the original HCP was approved subsequently become listed. In addition, the 'No Surprises' policy...applies to listed as well as unlisted species if they are adequately addressed in the HCP." (Section 10 Handbook, p. 3-7; see also, p. 4-1.)

H²-221 In general, the purpose of the "Alternatives Analyzed" section of an HCP is to examine alternatives which would reduce Take below levels anticipated for the project proposal, and to examine the "no action" alternative. (HCP Handbook, p. 3-35.) The suggestion that the MSHCP "rank" species is not a proper alternative because it would not lead to reduced levels of Take of listed and unlisted species. That is, Take of listed species is not reduced merely because one or more listed species are removed from the "Covered Species" list. Additionally, the Draft EIR/EIS analyzes a reasonable range of project alternatives under both CEQA and NEPA. See Responses H²-18 and H²-331 to H²-337.

H²-222 See Responses H²-35 and H²-187.

H²-223 See Responses H²35, H²44, H²-187, and F-98.

H²-224 The MSHCP provides for adequate funding, and details the funding provisions in Section 8 of the MSHCP. In order for the MSHCP to qualify as a Habitat Conservation Plan, adequate funding must be demonstrated, as is required under U.S.C. §1539(a)(2)(B)(iii), or a Take Permit will not be authorized. Thus, the Service must find the MSHCP provides adequate funding prior to permit issuance.

The case of Sierra Club v. Babbitt (S.D. Ala. 1998), 15 F.Supp.2d 1274 is misconstrued by this comment. The holding of the court, in part, was that the U.S. Fish and Wildlife Service failed the "arbitrary and capricious" standard for its issuance of an incidental take permit of the Alabama field mouse by relying on "unnamed sources to contribute funds to make up for the inadequacy of the amounts of offsite mitigation funding required." Here, Section 8 of the MSHCP identifies anticipated revenue sources and responsible parties (See Table 8.5), includes procedures for reevaluating funding levels if a funding shortage were to develop (See MSHCP, §§ 8.6.1-8.6.5.), and even provides for debt financing if funding levels were to become inadequate. (See MSHCP, § 8.7.) The efforts of the MSHCP to delineate funding sources are far more specific than the "unnamed sources" found to be lacking in Sierra Club v. Babbitt.

Further, the case of National Wildlife Federation v. Babbitt (E.D. Cal. 2000) 128 F.Supp.2d 1274 is not applicable because the MSHCP sets forth adequate funding to ensure implementation of the proposed MSHCP. The amount of the Local Development Mitigation Fee will be supported by the nexus study. Other funding mechanisms will also be used to conserve the Additional Reserve Lands and implement the MSHCP as set forth in Section 8 of the MSHCP. The MSHCP does not rely solely on the Local Development Mitigation Fee unlike the Natomas Basin HCP.

H²-225 This comment purports to summarize federal law and no further response is required.

H²-226 The RCIP has been a stakeholder driven effort from its inception. An Advisory Committee with representatives from the development community, property owners, environmentalists, and other interested parties has provided direction to the development of the MSHCP over the past four years. Additionally, the County has met with individual property owners and with groups representing land owner interests whenever requested. The RCIP has been recognized as a national model for partnering with public, private sector to plan for the future of Riverside County. The MSHCP reflects the creative ideas of a broad range of stakeholders. Specific elements of the Plan including the use of criteria rather than hardline conservation areas, the HANS, and the focus on incentives were developed by stakeholders to address the concerns about the regulatory approach to reserve assembly taken in other Regional HCP's. All of these aspects of the Plan came out of the "creative partnership" that is at the heart of the RCIP planning effort. The County's four yearsof work, more than $30 million expenditure and unprecedented public involvement have demonstrated the County's sincerity in creatively planning for the future.

H²-227 This conclusory comment summarizes Comments H²-207 though H²-226, for which responses have been provided.

H²-228 This comment purports to summarize portions of the MSHCP and EIR/EIS. See Responses H²-229 to H²-231.

H²-229 This comment purports to summarize state law although misstates Fish and Game Code section 2080 and no further response is required.

H²-230 This comment purports to summarize certain NCCP Act Guidelines and no further response is required.

H²-231 See Responses G-10, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003. The MSHCP/NCCP contains an adaptive management component to optimize plan implementation. (MSHCP, § 5.) The stated purpose of the adaptive management framework is "to use the results of new information gathered through the monitoring program of the plan and from other sources to adjust management strategies and practices to assist in providing for the conservation of covered species." (Draft MSHCP, p. 5-1.) The MSHCP/NCCP adaptive management process includes features to update the vegetation map as part of the MSHCP/NCCP Monitoring Program. (Draft MSHCP, p. 2-3 and § 5.3)

The County and CDFG disagree with the comment's premise that the MSHCP improperly defers CEQA analysis. The level of analysis in the Draft EIR/EIS is commensurate with the significance of the impacts and fully complies with CEQA. State CEQA Guidelines section 15146 states that the "degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR." Moreover, deferral of more detailed analysis is legitimate "where practical considerations prohibit devising such measures early in the planning process (e.g., at the general plan amendment or rezone stage), the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval... [Citation.]" ( Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1029.) The County and CDFG have not deferred analysis of any potential impact. The Adaptive Management provisions of the MSHCP do not constitute improper deferral, but instead, are a means by which newly discovered science may be included in the MSHCP Conservation Area development process.

The comment provides insufficient information about the source of its cost estimates to provide a response because it does not state the basis for its conclusions or an internal reference to other places in the document where the conclusion is further stated. The commentor provides no empirical data for this claim. See Responses H²-183 through H²-188.

In addition, a nexus study is currently being prepared for the development impact fee which will include an updated projection of land costs. Prior to MSHCP/NCCP approval, the County and cities must make the findings required by California Government Code §§ 66000 et seq., namely that there is a "reasonable relationship" between the "fees" that will be imposed and the estimated cost of land acquisition under the MSHCP/NCCP. (Draft MSHCP, p. 6-1) The MSHCP/NCCP makes conservative assumptions about density incentives. It assumes that only 10% of the units constructed during the next 25 years will participate in density incentives and that only 50% of funds received through that participation will be applied to mitigation. (Draft MSHCP, p. 8-15) The local government's fee ordinance will also be required to contain adjustment provisions. (Draft MSHCP, p. 8-14) See Responses H²-189 through H²-191.

The Lead Agencies also disagree with the commentor's statements that the MSHCP/NCCP creates an "onerous bureaucracy" or that it offers "no assurances." See Responses H²-36 and H²-132.

The Take Authorization, "no surprises" and other assurances provided by the Wildlife Agencies not only appear in the MSHCP/NCCP and the IA, they are also a part of Federal and State law. Thus, the Lead Agencies disagree with the comment to the extent it suggests that the assurances are "alleged." See Response H²-36.

H²-232 The MSHCP does not include "restrictions" related to wetlands and other waters within the Plan Area. Instead, consistency determinations are to be made in order to comply with requirements for Take Authorization for Covered Species. Other state and federal regulations relating to such waters continue to be applicable. (See Response H²-199.)

H²-233 The MSHCP does not impose or restrict "jurisdiction" of the Corps of Engineers. Instead, the purpose of the MSHCP is to comply with FESA and the NCCP Act and to grant Take Authorization for Covered Species. The United States Supreme Court decision in SWANCC affects the jurisdiction of the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency under the Clean Water Act. The case does not affect the jurisdiction of the State of California, which continues to regulate waters of the State, nor the jurisdiction of local governments. In addition, EPA and the Corps have recently issued an "Advanced Notice of Proposed Rulemaking" (68 Fed. Reg. 1991 (Jan. 15, 2003)) which makes clear that the actual extent of those agencies' jurisdiction over waters of the United States is still under review. The blanket statement that isolated streams and wetlands of the County are no longer subject to Corps' jurisdiction is thus still subject to considerable dispute.

H²-234 The comment that "regulation of isolated wetlands is not allowed under federal or state law" is incorrect. Among other regulatory bodies, the Regional Water Quality Control Board has the authority to regulate discharges to "waters of the State," including wetlands. (See Cal. Water Code, §§ 13050(e), 13269.) See Responses H²-232 and H²-233.

H²-235 The MSHCP assures adequate funding will exist, as is required under U.S.C. §1539(a)(2)(B)(iii). Section 8 of the MSHCP states anticipated revenue sources and responsible parties (See Table 8.5), includes procedures for reevaluating funding levels if a funding shortage were to develop (See Sections 8.6.1-8.6.5.), and even provides for debt financing if funding levels were to become inadequate. (See MSHCP, § 8.7.) These revenue sources will provide the funding necessary to acquire private lands. Therefore, there will not be any "taking" of private property. The commentor has not provided any information to support its claim that a "low-ball land value" has been used.

Table 8-1 describes assembly of Additional Reserve Lands in terms of acreage attributed to local, state and federal acquisitions. The projected revenues from the Local Development Mitigation Fee are anticipated to be approximately $540 million over the next 25 years (Draft MSHCP, p. 8-15) not the $540,000 referenced by the commentor.

The commentor's reliance on Lucas v. South Carolina is misplaced. Under the MSHCP private property will be acquired from willing sellers in exchange for fair market value or other incentives. See Response Q²-13.

H²-236 The quote from HANS referenced in the comment has been misinterpreted by the commentor. This provision in HANS allows for a development application to be processed without further consideration of the Criteria only in those limited instances where the land "intended to be acquired" is unable to be acquired. Development applications on land determined not to be necessary for inclusion in the MSHCP Conservation Area may be processed and approved or denied in accordance with normal development processes.

H²-237 See Response H²-236.

H²-238 See Responses H²-41, H²-168 and H²-236.

H²-239 The MSHCP provides flexibility in the selection of the land that will eventually comprise the Additional Reserve Lands. (See Responses H²-52, H²-132, H²-193, H²-196, H²-207 and H²-312.)

H²-240 The MSHCP is not, as this comment recognizes, a plan with "hard-line" boundaries. See Responses H²-41 and H²-43. Consequently, there is no "taking" pursuant to state and/or federal law. Further, the County is not engaging in "activities to depress the value of property before condemning it". See Response H²-241.

H²-241 Species habitat does not constitute "blight" on a neighborhood. The conduct at issue in the case of Klopping v. City of Whittier (1979) 8 Cal.3d 39, is far different than the coordinated regional planning efforts to be implemented by the MSHCP. In Klopping, the city made public announcements that it intended to acquire the plaintiff's land, terminated the proceedings, and then restarted eminent domain proceedings once the price of land had dropped. Worth noting is that the city specifically announced that the particular property owned by the plaintiff's was to be condemned. The MSHCP has made no such announcements regarding individual pieces of property. The exact property to be conserved will be determined through the application of the Criteria. The MSHCP incorporates a broad array of incentives to encourage Conservation of privately owned lands. (See MSHCP, § 6.1.1.) Additionally, it is the stated goal of the MSHCP to properly and justly compensate private landowners. Worth noting also is the case of Guinnane v. City and County of San Francisco (1987) 197 Cal.App.3d 862, wherein the court considered a landowner suit for damages based upon the designation of land as a possible site for a public park. The landowners claimed unreasonable precondemnation and cited the holding in Klopping. The court rejected this argument and held that "mere planning activities" did not act as a blight upon the property requiring condemnation. Further, for Klopping to be applicable there must be showing of a "bad faith" regarding the actions of the government agency. Because the Lead Agencies are not acting in "bad faith" in regard to the MSHCP, not such "bad faith" showing can be made. See Response H²-41 regarding why there can be no claim for a taking. See H²-11 regarding adequacy of project description under CEQA.

H²-242 The comment purports to summarize state, federal and case law and no further response is required.

H²-243 A nexus study is currently being prepared for the Local Development Mitigation Fee. See Response H²-242. Further, the "entire cost" of the MSHCP will not be funded by the Local Development Mitigation Fee. Other sources of funding include the Density Bonus Fees, mitigation for regional infrastructure, Landfill Tipping Fees, and other potential new revenue sources. (Please see Section 8.5.1 of the Draft MSHCP.)

H²-244 The commentor is paraphrasing provisions of the Draft MSHCP. No response is required. Page 2.9-1 of the Draft EIR/EIS states that more than 100,000 residential units will be built over the next 20 years. This statement will be clarified to indicate that approximately 149,000 units are anticipated to be constructed in unincorporated western Riverside County by 2025. Table 3J on p. 3.3-3 of the Draft EIR/EIS refers to dwelling units within incorporated Cities, and does not include unincorporated western Riverside County. The combined number of dwelling units anticipated to be constructed by 2025 in unincorporated western Riverside County (149,000) and the Cities (181,000) is approximately 330,000.

H²-245 The commentor offers a series of "may be" or "probably not" statements concerning the implementation of a Local Development Mitigation Fee. The commentor appears to recognize that these are the elements dealt with in the "NEXUS Study" required by California Law. Mitigation fees are utilized by many jurisdictions to mitigate for the impacts of new Development on infrastructure and on environmental resources. The questions are: 1) does new Development result in the loss of habitat and existing open space, rural and agricultural lands that support species?, and 2) how will that new Development mitigate for its impacts? The answers to both questions is Yes and are both well supported by the literature and by law. The amount of the mitigation and the procedures for implementation will be analyzed and developed in connection with the nexus study and set forth in ordinances adopted by the Cities and the County.

H²-246 This comment reiterates and summarizes comments H²-82 through H²-246. See Responses H²-82 through H²-246. The Draft EIR/EIS does not contain any significant new information or inaccuracies that require recirculation of the Draft EIR/EIS. As explained in detail in the Responses H²-11, H²-82 through H²-246, the project description in the Draft EIR/EIS is adequate and fully complies with both CEQA and NEPA. Moreover, the Draft EIR/EIS "adequately apprise[s] all interested parties of the true scope of the project for intelligent weighing of the environmental consequences of the project." (City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454-1455.)

H²-247 The comment purports to restate state and case law and no further response is required.

H²-248 This is an inaccurate interpretation of the CEQA Guidelines. Because environmental conditions may vary from year to year and in some cases it is necessary to consider conditions over a range of time periods, the "date for establishing baseline cannot be a rigid one." (Save Our Peninsula Committee v. Monterey County Bd. of Supervisors (6^th Dist. 2001) 87 Cal.App.4th 99, 125 (Save Our Peninsula).) As such, lead agencies have the discretion to determine the appropriate baseline.

Section 15125 of the State CEQA Guidelines sets forth the general rule that environmental conditions existing at the time environmental analysis is commenced "normally" constitutes the baseline for purposes of determining whether an impact is significant. The commentor apparently relies on this section to conclude that CEQA statutorily requires the baseline to be set at the time the notice of preparation is published. However, the Legislature's use of the term "normally" in Section 15125 gives the lead agency discretion to deviate from the time-of-review baseline and establish a baseline that is more relevant to a determination of whether the project's impacts will be significant. (Fat v. County of Sacramento (2002) 97 Cal.App.4th 1270, 1278; Save Our Peninsula, supra at p. 125.)

The baseline may start at any time, if there are sound reasons for the choice in the administrative record. (Save Our Peninsula, supra, at p. 125-126.) For instance, in Save Our Peninsula, the court stated that "where the issue involves an impact on traffic levels, the EIR might necessarily take into account the normal increase in traffic over time." (Ibid.) Additionally, analysis of the past may be used to establish future trends for analysis in baseline determinations. (County of Amador v. El Dorado County Water Agency (3^rd Dist. 1999) 76 Cal.App.4th 931, 956.)

The decision to use a baseline that deviates from the statutorily created norm, will be reviewed for abuse of discretion. "Abuse of discretion is established if the agency has not proceeded in a manner required by law or if the determination or decision is not supported by substantial evidence.' [Citations.]" (Save Our Peninsula Committee, supra, at pp. 116117.) "In reviewing whether agency procedures comply with CEQA, the test to be applied is 'whether an objective, good faith effort to so comply is demonstrated.'" (Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 305.) "The agency is the finder of fact and [the court] must indulge all reasonable inferences from the evidence that would support the agency's determinations and resolve all conflicts in the evidence in favor of the agency's decision. [Citation.]" (Save Our Peninsula, supra, at p. 117.) The environmental setting is described and identified in Figure 2.1 on page 2.1-3 of the Draft EIR/EIS.

H²-249 The Draft EIR/EIS provides a complete description of the environmental setting and affected environment and fully complies with both CEQA and NEPA. As the Draft EIR/EIS notes, the MSHCP covers a diverse landscape including urban cities to undeveloped foothills and montane forests, and stretches across the Santa Ana Mountains, Riverside Lowlands, San Jacinto Foothills, San Jacinto Mountains, Agua Tibia Mountains, Desert Transition, and San Bernardino Mountains Bioregions. Section 3.0 on pages 3.1-1 through 3.5-1 of the Draft EIR/EIS describes the existing biological, agricultural, population, housing and employment, public services, and transportation and circulation conditions in the proposed MSHCP. Existing land uses are summarized in Figure 2.1 and Figure 4.1.2 is a map that provides a regional perspective of the MSHCP. Section 3.0 also provides a complete discussion of impacts for each of these areas. For convenience, these impacts are summarized for each alternative in chart form in Table ES-B. See Responses H²-250 through H²-268.

H²-250 See Responses G-10, K-110, M-11, H²-93 through H²-122 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003. For the reasons stated in these responses and the SRP Correspondence, the appropriate EIR/EIS baseline was utilized.

H²-251 See Responses H²-46, H²-116, H²-218 and H²-247 through H²-250.

H²-252 This comment provides an introduction to the following nine comments which purport to provide comparisons of acreages of various vegetation types based on the MSHCP vegetation data base and what purports to be property-specific vegetation mapping based on review of aerial photographs and limited field surveys. Actual vegetation maps have only been provided for three of the properties noted. Even for those properties where a map was provided, there is no reference to actual documentation of the studies undertaken, identifying at a minimum the methodology of the surveys (standard industry practice is to document field survey methodologies including names of surveyors, times of survey, survey conditions, survey methodology such as vegetation mapping conventions/classification standards used, mapping unit used, field map used, etc.). Variance in methodologies, particularly vegetation classification can yield vastly different analysis results.

As an example of how vegetation classification methodology can result in dramatic differences between mapping efforts is the inclusion of what the commentor identifies as "disturbed habitat" in the same vegetation category as developed land. Table 2-1 in the Draft MSHCP Plan provides a detailed description of the "uncollapsed" vegetation categories that are subsets of the more generalized ("collapsed") vegetation classifications that are used for discussion purposes in the Draft MSHCP. The collapsed vegetation category identified in the Draft MSHCP as "Developed/Disturbed Land" includes the uncollapsed categories of "Residential/Urban/Exotics"; areas that clearly are non-natural and are considered to have no conservation value. This category does not include areas of natural habitat that show disturbance, as typically indicated by a low percentage of cover by the constituent plant species. The commentor acknowledges the distinction between "disturbed habitat" and "non-habitat Residential/Urban/Exotic" in the second bullet of Comment H²-255.

Under the MSHCP vegetation mapping conventions, areas that are disturbed variations of a particular vegetation community would be included within their actual vegetation community designation, with no distinction regarding the percentage of cover of overall quality (pursuant to the landscape level of planning for the 1.26 milllion-acre MSHCP Plan Area). Therefore, the figures presented in the following comments drastically understate natural vegetation acreages by including "disturbed" variations of natural vegetation communities with developed land, such as residential and other urban uses. Taking into account this one example of misinterpretation of mapping methodologies would indicate that the site-specific mapping performed does not differ substantially from that provided in the MSHCP database.

In addition, the Draft MSHCP Plan clearly acknowledges that site-specific mapping of resources is not expected to precisely match the landscape level of analysis performed for the 1.26 million-acre MSHCP Plan Area. As noted throughout the Draft MSHCP Plan and these Responses to Comments, mechanisms are provided to assess conservation value on a site-specific basis, including most importantly the flexibility of the Area Plan Criteria and Reserve Assembly process. Therefore, it is anticipated that site-specific biological studies would produce more detailed and possibly varied information that would be taken into consideration as Development and Reserve Assembly proceeds.

The following comments also represent that some of the properties contain minimal vegetation cover and should therefore be removed from the Criteria Area. As previously noted, conservation value has been determined based on a number of factors, including but not limited to vegetation coverage, species occurrence, soils composition, slope and elevation, in addition to reserve design considerations that include habitat block size, configuration and linkage. Therefore, the fact that a site-specific biology study indicates that vegetation mapping indicates differences from the MSHCP database, would not necessarily lead to a determination that the property does not contain conservation value, because the proposed Conservation may relate to reserve design or other factors.

H²-253 In reviewing the vegetation acreages and mapping provided by the commentor, it appears that the most prominent differences are related to the commentor's methodology for classification of "disturbed habitat" (see Response H²-252). As noted, the MSHCP vegetation map does not contain a "disturbed habitat" vegetation classification, and a comparison of this classification to the MSHCP classification of "developed/disturbed" is not appropriate. Many of the areas that the commentor identifies as "disturbed habitat" appear to identify qualitative variances in natural habitats. For example, in viewing the vegetation map provided in Comment H²-359, the southwest portion and the northern portion of the western parcel is mapped as "disturbed habitat" but appears to be similar to the adjacent chaparral habitat immediately to the east and south, respectively. This is consistent with the MSHCP vegetation map. However, as noted, it is not appropriate to compare these areas to areas mapped "developed/disturbed" in the MSHCP.

Based on the information provided, it is not possible to verify whether the area mapped as coast live oak woodland is actually eucalyptus and Peruvian pepper trees. However, it should be noted that the portions of the property proposed for Conservation do not include this area. Resources sought for Conservation include coastal sage scrub, chaparral and grassland.

As discussed in the responses to the January 28, 2003 comment letter (Responses N³-1 through N³-5), the vegetation map submitted by Murdock for the Outlet Mall Expansion property actually confirmed the accuracy of the MSHCP vegetation data base, and its purpose in providing a landscape-level guidance in assembly of the MSHCP Conservation Area.

H²-254 See complete Responses to Comment Letters N³.

H²-255 See complete Responses to Comment Letters N³.

H²-256 See complete Responses to Comment Letters N³.

H²-257 See complete Responses to Comment Letters C⁴.

H²-258 See Response H²-252.

H²-259 See Response H²-252.

H²-260 See Response H²-252.

H²-261 See Response H²-252.

H²-262 See Response H²-252.

H²-263 See Responses H²-118, H²-199, H²-204 and H²-219.

H²-264 It is not clear what relevance the presence or absence of the 13 species (which are not identified in the comment) that were surveyed for on the identified properties bears on the adequacy of the Draft MSHCP or the number of species analyzed for coverage. The commentor appears to be attempting to illustrate the "overboard nature of such a large species list" by indicating that site surveys for 13 random species on the referenced properties were negative. Because it cannot be determined how the purported results of a survey for a limited and unidentified list of species on a limited number of properties relates to the species analysis throughout the 1.26 million-acre MSHCP Plan Area, no further response is provided.

H²-265 See complete Responses to Comment Letters C⁴.

H²-266 See Response H²-27.

H²-267 See Responses H²-247 through H²-262.

H²-268 This conclusory comment summarizes Comments H²-263 through H²-268, for which Responses are provided above. The Draft EIR/EIS does not rely on "outdated" or "inaccurate" data. See Responses H²-93 though H²-122.

H²-269 See Response H²-270.

H²-270 The Lead Agencies do not agree that properties subject to vesting tentative maps and/or development agreements should be removed from the Criteria Area. The rules, regulations, policies, ordinances and laws in effect at the time the application for the vesting tentative map is deemed complete and the terms of each development agreement will control as to whether the County or a City has the ability to require compliance with the provisions of the MSHCP. Vesting tentative and final maps as well as development agreements have a life or specified term. Once the life or specified term expires, any development of the property would be subject to the provisions of the MSHCP since the vested rights conferred would no longer be in effect. The County and each City will need to determine whether or not a proposed development project is required to comply with the provisions of the MSHCP in light of a vesting tentative/final map or development agreement on a case by case basis. However, if it is determined that the property included within the proposed development project is occupied by a listed species, incidental take of the species may not be conferred unless compliance with the MSHCP occurs. Thus, if a vesting tentative/final map or development agreement prevents the County or City from requiring compliance with the MSHCP and a proposed development project is occupied by a listed species covered by the MSHCP, the applicant may choose to obtain take authorization pursuant to either Sections 7 or 10 of the FESA and/or pursuant to the CESA or the NCCP Act directly from the Wildlife Agencies or through the MSHCP.

H²-271 The Draft EIR/EIS provides a complete description of the environmental setting and affected environment and fully complies with both CEQA and NEPA. Regardless of whether property owners have vested rights, the environmental setting in the Draft EIR/EIS is adequate. See Response H²-270.

H²-272 See Responses H²-28. Certain City ministerial approvals that could have impacts to Covered Species may be subject to the provisions of the MSHCP. However, the number of ministerial approvals that may be subject to the MSHCP is irrelevant to the Draft EIR/EIS project description.

H²-273 See Response H²-32.

H²-274 The commentor restates the conclusions presented in the Draft EIR/EIS that implementation of the proposed MSHCP could result in approximately 4,300 acres of land with known potential mineral extraction use to be set aside for Conservation, and that no areas currently used for mineral extraction would be set aside.

H²-275 See complete Responses to Comment Letter N³. No lands which are actively utilized for mineral resource extraction are anticipated to be conserved. The inclusion of the property in question in the Criteria Area will not alter the existing land use or prevent the continuance of existing mineral resource extraction activities.

H²-276 See Responses M-52, M-62 and M-75.

H²-277 While the commentor is correct in stating that amount of land actively utilized for agricultural uses in the entire County totals 266,926 acres, this amount is reflective of agricultural operations that take place throughout the County, including the Coachella and Palo Verde Valleys. The EIR/EIS identifies potential impacts to agricultural within the MSHCP Plan Area (i.e., Western Riverside County); therefore, as stated in Response H²276, a baseline of 161,792 acres of active agricultural land is utilized.

The baseline acreage for Agricultural Operations was derived from the interpretation of aerial photographs of the entire County. The land use interpretation included dairies, feedlots, fish farms, and agricultural related uses in the tabulation of land utilized for agricultural production throughout the County. As, this data was tabulated on a GIS database, the amount of agricultural land in Western Riverside County was extracted from the total amount of agricultural land in the County as a whole.

H²-278 The tables referenced in the comment are contained within the Draft EIR/EIS, not in the MSHCP as cited in the comment. The sources of the information included in the tables are referenced in the footnotes for each table. These tables merely provide information reflecting the existing setting relating to transportation facilities, and it is not their purpose to analyze impacts. See Draft EIR/EIS Section 5.1.5 on p. 5.1-10 for discussion of cumulative transportation impactsincluding those associated with potential intensification of Development. See also Responses H²-247 through H²-277.

H²-279 This comment purports to summarize state and federal law and no further response is required.

H²-280 The commentor states that the conclusions reached in the Draft EIR/EIS are unsupported by facts and analysis. Analysis and facts supporting the conclusions reached in the Draft EIR/EIS can be found in Sections 3.0, 4.0, 5.0 and 6.0 of the document. See Responses H²-281 through H²-298.

H²-281 The analyses contained in the Draft MSHCP and the Draft EIR/EIS use the best scientific and commercial data available to support its conclusion of coverage for the non-listed Covered Species (see Response H²-250). The Lead Agencies concur that the significance criterion referenced in Footnote 32 of the comment is not included in Appendix G of the CEQA Guidelines. This criterion was added to provide an analysis of potential Edge Effects. Moreover, the Lead Agencies have discretion to choose thresholds of significance utilized in CEQA/NEPA documents. See Responses M-67 through M-69.

Footnote 33 contains in inaccurate reference to the comment document. Based on the comment contained in the footnote regarding the "complete list of admissions by the County" it is assumed that the commentor is referring to comments H²-106 to H²-114. See Response to those comments.

H²-282 See Responses H²-253 through H²-262.

H²-283 See Responses H²-115 and H²-116.

H²-284 See Response H²-117.

H²-285 See Response H²-250.

The Lead Agencies also disagree with the commentor's conclusion that "hard-line" boundaries must be set. The Conservation Area, Criteria Area, cores and linkages, and Edge Effects are fully and accurately identified based on the best scientific and commercial data available. See Responses H²-11, H²-88, H²-91 and H²-92.

As explained in detail in Responses H²-99 through H²-120, the MSHCP utilizes the best available scientific and commercial data. The establishment of "hard line" boundaries for the Conservation Area, Criteria Area, cores and linkages and Edge Effects is not required by FESA or the NCCP Act and, moreover, it would be impossible to achieve on the ground. As previously explained, the MSHCP sets up a process which largely relies upon willing buyer - willing seller transactions to acquire conservation property. As the process moves forward, incentives will be provided for property owners to transfer their property. However, it is impossible at this point to determine every parcel of land that is or may become available for such purposes.

H²-286 See Response H²-27.

H²-287 See Responses H²-93 through H²-120 and H²-280 through H²-284.

H²-288 The Lead Agencies disagree with the commentor's conclusion. As more thoroughly explained in Response H²-22, the MSHCP is based upon the best available scientific and commercial data. Additionally, the adaptive management and vegetation database update provisions of the MSHCP are not improper deferral of mitigation but instead are a means by which new scientific information may be included in the Reserve Assembly process.

Moreover, the commentor's reliance on Berkeley Keep Jets Over the Bay Com. v. Board of Port Cmrs. (2001) 91 Cal.App.4th 1344, is misplaced. The EIR at issue in Berkley Keep Jets used a 1991 scientific report when a more recent version was arguably available. Because newer information existed prior to the publication of the Draft EIR/EIS, the court held that the use of the older science was inappropriate. (Id. at p. 1367.) In contrast, the data used in the Draft EIR/EIS for the MSHCP is the most recent and accurate information available and satisfies CEQA's requirement that the County make "a good faith effort at full disclosure."

H²-289 See Responses H²-290 through H²-339.

H²-290 The commentor restates the premises on which the Draft EIR/EIS analyzes impacts to mineral resources, and states that Murdock's Pacific Clay property and a portion of its Alberhill Ranch Specific Plan property is designated MRZ-2. Therefore, no further response is necessary.

H²-291 The commentor restates the facts presented in the Draft EIR/EIS that implementation of the proposed MSHCP could result in approximately 4,300 acres of land with known potential mineral extraction use to be set aside for conservation, and that no areas currently used for mineral extraction would be set aside. Therefore, no further response is necessary.

H²-292 While portions of the commentor's property may be in the Criteria Area, the Criteria do not presume the Conservation of lands actively used for mineral resource extraction.

H²-293 See Responses H²-291and H²-292.

H²-294 The commentor appears to be stating that by setting aside land for Conservation that is potentially suitable both for mineral resource extraction and development, a land use incompatibility would occur. This is incorrect. Land use incompatibilities generally occur when adjacent land uses have adverse impacts on each other (such as industrial land use adjacent to residential, which can result in noise, light and glare, air quality, and hazard impacts). Designating vacant and undeveloped land, regardless of development potential, as an area to be considered for Conservation does not result in land use incompatibilities.

H²-295 The commentor seems to be stating that the analysis of Population, Housing and Employment is inconsistent with the analysis of growth inducing impacts. The commentor is reiterating different statements from the MSHCP EIR/EIS without including any of the detail or explanation. Without the inclusion of the detail or explanation of these statements (which is included in the EIR/EIS) it would, of course, seem that the analysis is inconsistent.

As stated on page 6.1-5 "a project that would reduce the supply of available land for development in one area may be considered to have indirect growth inducing effects if such a reduction would result in a shift in projected growth into an area not currently designated for such growth... if development cannot occur where it is currently proposed, or occurs at levels currently permitted by the County and local municipalities, it must be accommodated elsewhere. As a result, the project could redistribute growth in the region, as development may occur in areas where it is not currently anticipated." This is consistent with the statement on page 4.3-2 "... implementation of the proposed MSHCP will not change (either reduce or increase) the amount of development (dwelling units and/or employment facilities) allowed pursuant to local land use controls. Regardless of whether the MSHCP is adopted, then, the same number of dwelling units and commercial/industrial/office space will be developed." "In other words, the only difference the MSHCP will make to future development is to change the precise location of the anticipated land uses within western Riverside County."

Also consistent with the above, page 6.5-1 states, "The intent of the plan...is for the Wildlife Agencies to grant "take authorization" to local jurisdictions for otherwise lawful actions such as development that may incidentally take or harm individuals of a species or its habitat outside of reserve areas, in exchange for each jurisdiction's support for the assembly of a coordinated reserve system. This would lessen the existing constraint on the development by streamlining the permitting process. Thus, the proposed MSHCP would have an indirect growth inducing effect, because it will accommodate and streamline the approval of future development within those areas of western Riverside County outside the limits of the MSHCP Conservation Area." This streamlining of the permitting process will not change the number of dwelling units and number of commercial/industrial/office spaces developed.

H²-296 The MSHCP and the Draft EIR/EIS are consistent. The growth forecasts for western Riverside County are contained within two tables in the Draft EIR/EIS. Table 3J on page 3.3-3 indicates that residential units within the Cities of western Riverside County will increase to 466,845 units by 2025. See Responses H²-244 and H²-295.

H²-297 The traffic analysis that is provided in Section 4.16 and Appendix C of the Riverside County General Plan Draft EIRfully complies with CEQA and NEPA. Potential locations identified for habitat conservation as a part of the MSHCP were used for several roadways, on the existing circulation element. Roadways on the circulation element were deleted or modified because of the potential conflicts with the MSHCP.

H²-298 For clarification purposes, the Criteria Area is approximately 310,000 acres, not the 844,200 acres referenced by the commentor, within which approximately 153,000 acres of private land will be included within the MSHCP Conservation Area. The traffic analysis that is provided in Section 4.5 of the Draft EIR/EIS is based on the assumption that land uses that would occur in the153,000 acres of private lands would be shifted to areas outside the 153,000 acres. As stated on page 4.5.3 of the Draft EIR/EIS, "Approximately 5,840 acres of roads will be improved/constructed within the Criteria Area. The improvement/construction as well as the operation and maintenance of circulation element roadways are covered activities within the Criteria Area, subject to guidelines described in the MSHCP." Also stated on page 4.5-3 of the Draft EIR/EIS is the following, "Planned roadways are proposed within the County and cities to facilitate planned growth. Planned roadways identified in Section 7.3.5 of the MSHCP are covered activities within the Criteria Area. Roadways other than those identified in Section 7.3.5 of the MSHCP are not covered without an amendment of the MSHCP. The MSHCP includes design and sitting guidelines for planned roadways. The implementation of these guidelines will ensure that planned roadways are designed and constructed in a manner consistent with the objectives of the MSHCP, while providing for the efficient passage of persons and goods through western Riverside County, the alleviation of traffic congestion, the maintenance of level of service standards, and continuation of adequate emergency access/evacuation routes. Therefore, the proposed MSHCP would not have significant impacts on planned roadways."

Under an analysis of significance on page 4.5-4 of the Draft EIR/EIS, the document states that the "MSHCP would avoid and minimize impacts to sensitive species and habitats known to occur in the vicinity of planned roadways, while permitting the construction, operation, and maintenance of roadways. The operation, maintenance, and construction of existing and planned roadways is necessary for the efficient and effective passage of persons and goods through western Riverside County, the alleviation of traffic congestion, the maintenance of level of service standards, and continuation of adequate emergency access/evacuation routes. As the operation, maintenance, and construction of existing and planned roadways, detailed in Section 7.0 of the MSHCP, are covered activities within the Conservation Area, potential transportation-related impacts resulting from implementation of the Proposed Action or its alternatives will be less than significant."

The analysis in the Draft EIR/EIS assumes that area roadways will be constructed according to the approved circulation elements of the County and Cities. The circulation elements are based on projected land use within the County and Cities. Planned roadways will not occur within the MSHCP Conservation Area. The MSHCP will plan the MSHCP Conservation Area around the roadways. As stated above the planned roadways are allowed in the Criteria Area. The MSHCP will not preclude the Cities and the County from implementing their circulation elements to accommodate planned growth.

H²-299 The Draft EIR/EIS states (on page 1.5-3) the Lead Agencies determined that the potential impacts that could result from implementation of the MSHCP to aesthetics, air quality, cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use (with the exception of agriculture and extractive mineral resources), noise, public services (except fire and parks), utilities, and environmental justice would be less than significant. The Draft EIR/EIS provides a brief summary of the conclusions reached in the analysis as required by CEQA and NEPA. CEQA allows the preparation of an Initial Study for the purpose of focusing an EIR; however, an Initial Study is not required if the Lead Agency determines it is clearly required for the Agency to prepare an EIR (State CEQA Guidelines, § 15060(d)). The Draft EIR/EIS makes use of this provision according to State law and therefore an Initial Study was not prepared.

H²-300 See Responses K-107, K-108, K-123, H²-301 and H²-314.

H²-301 The Draft EIR/EIS fully discusses all potentially significant impacts. CEQA does not require an EIR to discuss insignificant effects in detail. (State CEQA Guidelines, § 15126.2; 15128.) The Draft EIR/EIS found that implementation of the proposed MSHCP would not result in significant environmental effects related to the following issue areas: Aesthetics, Air Quality, Cultural Resources, Geology and Soils, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use, Noise, Public Services (with the exception of fire protection and parks), Utilities, and Environmental Justice. As required by CEQA, the Draft EIR/EIS briefly discusses these insignificant environmental effects in Section 1.5.5. (State CEQA Guidelines, § 15128.) There is no requirement in CEQA that a lead agency consider speculative future plans. (See Chapparal Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134.) Likewise, NEPA does not require an analysis of impacts that are too speculative to identify. (See, e.g., Kootenai Tribe of Idaho v. Veneman (2002) 313 F.3d 1094.) See Responses H²-299 and H²-304.

H²-302 The Lead Agencies concur that the conclusions reached in regard to cumulative biological impacts, population, housing and employment, and growth inducement are conservative in nature. See Responses H²-299, H²-301 and K-107.

H²-303 The Lead Agencies reached a significance conclusion because of the information before them, not due to lack of information. See Response H²-250.

H²-304 See Responses K-107, H2-15, and H2-301. The MSHCP will not change the land use designation of any property, nor does it authorize Development or relieve projects of the necessity of conducting environmental analysis and documentation of impacts pursuant to applicable State and federal laws. The conservative conclusion that was reached concerning the significant impact that could occur due to indirect growth inducement (as reflected in the population, housing, and employment discussion in Section 4.3 as well as in Sections 5 and 6 of the Draft EIR/EIS) stems from the possible 'removal of a barrier to growth,' in the form of streamlining the process of acquiring Take Authorization for projects. The significant indirect cumulative biological impact that was disclosed is also conservative, and reflects the granting of Take Authorization (and, hence, the permitted Take of Covered Species). These impacts are related to Development, but could potentially occur and be altered as an indirect result of Plan implementation.

H²-305 The State CEQA Guidelines section cited in the comment does not prohibit deferral of analysis. Instead, it states that the "degree of specificity required in an EIR will correspond to the degree of specificity involved in the underlying activity which is described in the EIR." Moreover, deferral of more detailed analysis is legitimate "where practical considerations prohibit devising such measures early in the planning process (e.g., at the general plan amendment or rezone stage), the agency can commit itself to eventually devising measures that will satisfy specific performance criteria articulated at the time of project approval... [Citation.]" ( Sacramento Old City Assn. v. City Council (1991) 229 Cal.App.3d 1011, 1029.)

The adaptive management and vegetation data base update provisions of the MSHCP are not an improper deferral but instead are a means by which newly discovered science may be included in the Reserve Assembly process. Additionally, the Draft EIR/EIS states that the management and monitoring programs incorporated in the MSHCP would be implemented to mitigate to the extent feasible any significant effects remaining after application of the minimizing measures incorporated in the MSHCP. (Draft EIR/EIS, p. 4.1-159.) These potential mitigation measures avoid, minimize, rectify, reduce or compensate for environmental impacts in conformity with NEPA. (40 CFR 1508.20.) Each of these potential mitigation measures is a means to mitigate adverse environmental impacts in conformity with NEPA. (40 CFR 1502.16(h).) Consistent with NEPA regulations, USFWS' record of decision will also state whether all practicable means to avoid or minimize environmental harm from the alternative selected have been adopted, and if not, why they were not. (40 CFR 1505.2(c).) Finally, in accordance with state and federal law, a monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation. (Ibid.)

H²-306 The Draft EIR/EIS fully discusses all potentially significant impacts. Additionally, insignificant impacts are briefly discussed as required by CEQA. See Responses H²-299, H²-300, H²-301 and H²-304. Impacts from possible intensification of development are discussed in Section 5.0 of the EIR/EIS and in Responses D-80, H²-300, I-43, K-123 H²302 and H²-304.

H²-307 A discussion and analysis of insignificant impacts can be found in the Draft EIR/EIS. See Responses H²-299, H²-300, H²-301, H²-304, H²-305 and H²-306.

H²-308 See Responses H²-28, H²-133 and H²-272. The commentor fails to identify environmental impacts that could occur from the application of the MSHCP provisions to a limited number of City ministerial approvals. The commentor also fails to provide any support for the allegation that increased processing costs and increased housing costs could result.

H²-309 The EIR/EIS contains adequate cumulative impact analysis. See Response H²-5. This comment primarily purports to summarize state and federal law; however commentor misinterprets the court's holding in Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, modified by 2002 Cal. App. LEXIS 5015 ("CBE"). The CBE court stated that "[t]he categories of probable future projects set forth in Guidelines section 15130(b)(1)(B)2 are drawn from controlling CEQA law. However, as the trial court found, to the extent this section lists these categories disjunctively and a lead agency may refer to only one of the categories in analyzing cumulative impacts, the section is inconsistent with CEQA law and is invalid." (Id. at p. 122 [emphasis added].)Thus, the comment mischaracterizes the meaning of the court by stating that a "lead agency must analyze all categories listed in CEQA Guidelines section 15130." The court actually held that the definition of "probable future project" requires that all the categories in Section 15130(b)(1)(B)2) be addressed. Similarly, the Lead Agencies disagree with the commentor's conclusion that "projects currently under environmental review unequivocally"qualify for consideration in a cumulative impacts analysis. The case cited by commentor, San Franciscans for Reasonable Growth v. City & County of San Francisco (1984) 151 Cal.App.3d 61, 74, actually states that "closely related projects that [are] currently under environmental review" and not all current projects, should be included in the cumulative impacts analysis. (Ibid.)

Thus, the comment mischaracterizes the meaning of the court. The court only meant that the definition of "probable future project", a term under section 15130(b)(1)(A), requires that all the categories in 15130(b)(1)(B)(2) be addressed and not that both the (b)(1)(A) list method and the (b)(1)(B) projection method must be used. The Draft EIR/EIS properly uses the projection approach, as discussed in Response H²-310 below. San Franciscans for Reasonable Growth v. City and County of San Francisco (1984) 151 Cal.App.3d 61, 74, fn. 13 is also case decided for an EIR using the 15130(b)(1)(A) list method and not the projection method, so it is inapposite. The page cited by the commentor in Bozung v. Local Agency Formation Comm'n (1975) 13 Cal.3d 263 does not state the proposition asserted. However, the case, on page 284, at note 27, states, "where an individual project is a necessary precedent for action on a larger project, or commits the lead agency to a larger project, with significant environmental effect, an EIR must address itself to the scope of the larger project." For the reasons stated in Responses H²15, and H²-310 to H²-318, the MSHCP is not a necessary precedent to a larger project and does not commit the County to a larger project.

H²-310 The Draft EIR/EIS contains adequate cumulative impact analysis and discussion of connected actions on pages 5.1-1 through 5.1-10 of the Draft EIR/EIS. See Responses H²5 and H²-19. Additionally, the Draft EIR/EIS specifically refers to the environmental documentation for both the General Plan Update and CETAP in order to inform the public and the decision-makers of the importance of these documents and potential impacts. (Draft EIR/EIS, § 1.1.5.) This reference complies with NEPA's requirement that materials be incorporated into an environmental impact statement by reference when the effect will be to cut down on bulk without impeding agency and public review of the action. (40 CFR, § 1502.21.) The MSHCP, the General Plan Update, and the CETAP are independent but interrelated projects which would be considered for implementation regardless of the outcome of the other two projects. (See Responses H²-311 through H²-313.)

As the commentor notes, NEPA requires an EIS' environmental analysis to include connected actions and cumulative impacts. However, NEPA also requires that materials be incorporated into an environmental impact statement by reference when the effect will be to cut down on bulk without impeding agency and public review of the action. 40 CFR, § 1502.21. The EIR/EIS specifically refers to the environmental documentation for both the General Plan Update and CETAP. (EIR/EIS at § 1.1.5)

The EIR/EIS uses the summary of projections approach and bases the projections upon Southern California Association of Governments (SCAG) regional population growth forecasts for 2025 for unincorporated western Riverside County and the Cities within western Riverside County. (State CEQA Guidelines, § 15130(b)(1)(B); Draft EIR/EIS, p. 5.1-2.) The cumulative impacts analysis fully discusses impacts to biology, land use, agricultural resources, mineral resources, housing, population and employment, public services, parks and recreation, and transportation. (See Draft EIR/EIS, pp. 5.1-6- 5.1-10.) See Response H²-15.

The Lead Agencies disagree with the commentor's statement that the RCIP process is not considered in the MSHCP. The RCIP is considered at § 1.2.2 of the MSHCP. Furthermore, it is incorrect for the commentor to conclude that the forecasting-based approach is not a sufficient analysis of the incremental effects of the MSHCP when viewed in connection with other projects and is an inappropriate criteria. The choice to use the forecasting-based approach is at the discretion of the project proponent. (State CEQA Guidelines, § 15130(b)(1)(B)) The comment is also incorrect to state that the Draft EIR/EIS considers only the MSHCP and alternatives and does not consider MSHCP effects in connection with other RCIP components. The EIR/EIS specifically refers to the environmental documentation for both the General Plan Update and CETAP, which is sufficient under CEQA. (EIR/EIS, § 1.1.5; Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 909-910).

H²-311 See Responses H²-209 and H²-310. The EIR/EIS also contains adequate boundary descriptions. See Responses H²-11 and H²-310.

The MSHCP, the General Plan Update, and the CETAP are independent but interrelated projects which would be considered for implementation regardless of the outcome of the other two projects. Indeed, the General Plan Update is required by state law. Gov. Code, § 65103.

With respect to Footnote 37, the MSHCP does not rely on the General Plan OS-CH land use designation. The remainder of the footnote is a comment on the adequacy of the proposed General Plan land use element not the MSHCP and no further response is required for purposes of the MSHCP Draft EIR/EIS.

H²-312 It is unclear to what project the commentor is referring when it refers to the "initial project" in this comment. As noted by the commentor, the General Plan Update and CETAP are projects contemplated by the MSHCP and sufficiently large changes in those projects will require evaluation under the MSHCP's adaptive management process, amendment process, and, if necessary, additional environmental review. It is partially for this reason that the Draft EIR states that, as required by CEQA, future development proposals will undergo environmental review and the project's potential environmental impacts will be identified, analyzed and mitigated. (Draft EIR/EIS, p. 1.5-6.)

Laurel Heights Improvement Ass'n v. Regents of University of California (1998) 47 Cal.3d 376, 396, cited by the commentor, held that an EIR must include an analysis of the environmental effects of future action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Even then, under Native Sun/Lyon Communities v. City of Escondido (1993) 15 Cal.App.4th 892, 909-910, environmental analysis may be incorporated by reference. CETAP and the General Plan Amendment do not meet the Laurel Heights test for collective analysis. While CETAP and the General Plan Amendment are proceeding concurrently with the MSHCP, none of the three projects is a consequence of the other. Each would be considered for implementation regardless of the outcome of the other two projects.

Indeed, the General Plan Update is required by state law. Government Code § 65103. The MSHCP project description is adequate. Moreover, the MSHCP EIR/EIS specifically refers to the environmental documentation for both the General Plan Update and CETAP, which is sufficient under CEQA.

Blue Ocean Preservation Soc. v. Watkins (1991) 754 F.Supp. 1450, 1457, merely restates the standard in 40 CFR 1508.25, which provides that actions are connected if they: (i) automatically trigger other actions that may require environmental impact statements; (ii) cannot or will not proceed unless other actions are taken previously or simultaneously; or (iii) are interdependent parts of a larger action and depend on the larger action for their justification. The MSHCP, CETAP and the General Plan Update do not trigger one another, can and will proceed independently and do not depend on each other for their justification. The drafters of the three documents have attempted to make them consistent, but this is just good planning, not prohibited piecemealing.

H²-313 The Lead Agencies concur that the CETAP and General Plan components of the RCIP are reasonably foreseeable projects. Each of these projects is based on the growth projections in the SCAG RTP. The MSHCP EIR/EIS utilizes the SCAG projections, as well as all applicable general plans, for the cumulative impact analysis, and thus is consistent with the other elements in the RCIP.

H²-314 The level of analysis in the Draft EIR/EIS is commensurate with the significance of the impacts and fully complies with CEQA. Not all issues analyzed in the Draft EIR/EIS were found to be significant or cumulatively considerable. Adoption of the proposed MSHCP and issuance of the Permits under Section 10(a)(1)(b) of the FESA and Section 2825 of the NCCP Act would conserve habitat and would allow Take of Covered Species, but would not directly authorize Development or eliminate the need for projects to conduct environmental review. Since the MSHCP does not authorize any physical development, it was determined in the Draft EIR/EIS that implementation of the proposed MSHCP would not result in significant adverse environmental effects relating to the following issue areas: aesthetics, air quality, cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, land use, noise, public services (with the exception of fire protection and parks), utilities, and environmental justice. As required by CEQA, the Draft EIR/EIS briefly discusses these insignificant environmental issues in Section 1.5.5. (State CEQA Guidelines, § 15128.) See Response H²-304.

For example, because the proposed MSHCP does not authorize Development, implementation of the proposed MSHCP would not create additional sources of light or glare affecting aesthetics. The Draft EIR/EIS discusses aesthetics on pages 1.5-5 and 1.5-6. Likewise, since there is no authorized Development, adoption of the proposed MSHCP would not alter the methods used to generate, use, transport, or dispose of hazardous materials. There would be no adverse impacts to cultural resources, hydrology and water quality, or geology and soils as no ground-disturbing or building activities would be directly authorized by the Plan. The MSHCP also would not alter land use designations or increase the areas designated for Development in any general plan. Thus, no adverse impacts to land use, noise, public services, utilities, or environmental justice would occur. For these reasons, there are no significant cumulative impacts on aesthetics, air quality, cultural resources, geology and soils, hazards and hazardous materials, hydrology and water quality, noise, utilities or environmental justice. (See Draft EIR/EIS, pp. 1.5-5-1.511.) The cumulative impacts analysis fully discusses impacts to biology, agricultural resources, mineral/extractive resources, housing, population and employment, parks and recreation, and transportation. (See Draft EIR/EIS, pp. 5.1-6 through 5.1-10.) See Responses H²-13, H²-14, H²-16, and H²-301.

H²-315 The Draft EIR/EIS contains adequate cumulative impact analysis. See Responses H²-206, H²-250, H²-285 and H²-309 through H²-314. There is no requirement under CEQA or NEPA requiring that a hardline boundary be set for the MSHCP Criteria or Conservation Areas. In fact, neither CEQA nor NEPA require that a project be changed to allow less complicated analysis of project impacts. Instead, both CEQA and NEPA require that lead agencies analyze the proposed project regardless of how complex. Therefore, contrary to the Comment, the lack of hardline boundaries does not violate CEQA. The Wildlife Agencies will determine if the MSHCP adequately complies with FESA and the NCCP Act and thus whether permits can be issued.

H²-316 See Responses H²-299 through H²-304.

H²-317 See Responses H²-15, H²-301 and H²-316. Although the MSHCP has the potential to cause indirect impacts to Public Services because of the Development that may occur outside of the MSHCP Conservation Area, there is no requirement in CEQA that a lead agency consider speculative future plans. (See Chapparal Greens v. City of Chula Vista (1996) 50 Cal.App.4th 1134) It should be noted that the MSHCP does not authorize Development or eliminate the need for environmental review of Development projects.

H²-318 See Response H²-121 regarding the mitigation and monitoring provisions of the Plan. The MSHCP is "self-mitigating", namely most project impacts were reduced to below a level of significance as a result of implementation of Plan components. The commentor fails to identify any mitigation measures that would reduce any project impacts, whether direct, indirect or cumulative. See Responses H²-13, H²-14, H²-16, H²-300 and H²-310 through H²-312.

H²-319 The growth inducing impacts of the MSHCP are fully discussed in Sections 5 and 6 of the Draft EIR/EIS. See Responses H²-15 and H²-310.

The Draft EIR/EIS recognizes that, if Development cannot occur where it is currently proposed or at levels currently permitted by the County and local municipalities, such growth must be accommodated elsewhere. The Draft EIR/EIS discusses, to the extent to which it is known or could be known, the possible effects of potential development shifting. Thus, on page 6.1-5 of the Draft EIR/EIS, the MSHCP concludes that it may have an indirect growth inducing effect, because it will accommodate and streamline the approval process for future developments within those areas of western Riverside County outside the limits of the MSHCP Conservation Area. "[O]ut of an abundance of caution, the Lead Agencies [also] determined that the [MSHCP] will have significant indirect impacts on Population, Housing, and Employment." (See Draft EIR/EIS, p. 5.1-9.) However, the Lead Agencies cannot address these potential indirect impacts in the Draft EIR/EIS for the MSHCP because it would be speculative to try to determine where, and if, any particular future development would be constructed. CEQA does not require speculation. To the contrary, State CEQA Guidelines Section 15145 specifically states that speculation is not required in an EIR.

Additionally, the Draft EIR/EIS also recognizes that the MSHCP would remove an impediment to growth by authorizing Take of Covered Species and allowing Development outside the MSHCP Conservation Area. (Draft EIR/EIS, p. 5.1-9.) Thus, the MSHCP is growth-accommodating, not growth inducing. The Draft EIR states that as required by CEQA, future development proposals will undergo environmental review and project's potential environmental impacts will be identified, analyzed and mitigated. (Draft EIR/EIS, p. 1.5-6.)

H²-320 The comment purports to summarize state, federal and case law and no further response is required.

H²-321 See Response H²-320. The Draft EIR/EIS does not improperly defer any mitigation measures and fully analyzes all potential environmental impacts. In some instances, such as in analyzing impacts to population, housing and employment, the Draft EIR/EIS concludes that there are no feasible means of mitigating indirect impacts from the elimination of an obstacle to growth. (Draft EIR/EIS, p. 4.3-7.) The Draft EIR/EIS identifies mitigation measures where they are feasible. For example, the Draft EIR/EIS discusses the MSHCP's requirement for the payment of fees as mitigation. A commitment to pay fees is adequate mitigation. (See Save Our Peninsula Comm. v. Monterey County Board of Supervisors (2001) 87 Cal.App.4th 99, 141.) Further, in its discussion of impacts to biology, the Draft EIR/EIS states that the management and monitoring programs incorporated in the MSHCP would be implemented to mitigate to the extent feasible significant effects remaining after the application of minimization measures incorporated in the MSHCP. Minimization measures are described in the Impact Analysis discussion in Section 4. For the purpose of analysis, it is assumed that the management and monitoring programs would be implemented according to the approaches and level of effort described in the Sections 5.0, 6.6, and 8.0 of the MSHCP, Volume I. The species-specific management and monitoring activities described in Section 5.0 of the MSHCP would be directed only toward the Covered Species identified for each particular alternative. A similar approach was specifically approved by the court in Save Our Peninsula Committee v. County of Monterey Bd. of Supervisors (2001) 85 Cal. App. 4^th 99. In that case, the Court expressly found that the County could determine the nature and timing of required improvements after approval of the project. The County, as lead agency, has the discretion to determine which mitigation measures are appropriate for its jurisdiction and the projects it considers. The timing of implementation of mitigation measures for the proposed MSHCP, along with parties responsible for enforcement and oversight of all mitigation measures, will be detailed in the Project Mitigation Monitoring and Reporting Program (MMRP) which will be made available to the public prior to project approval. See Response H²-320.

H²-322 The provisions of the MSHCP are "self-mitigating" and therefore no mitigation measures were proposed. The Draft EIR/EIS identified one significant direct impact related to biological resources (impacts to non-Covered Species) for which it was determined that no Feasible mitigation measures exist to reduce the identified impact to a less than significant level. There was an additional indirect impact identified resulting from the removal of an obstacle to growth. No Feasible mitigation measures exist to reduce this impact to below a level of significance.

H²-323 See Responses H²-52, H²-242 and H²-320.

H²-324 This comment purports to summarize state law. See Response H²-322.

H²-325 CEQA allows lead agencies to adopt mitigation measures to be implemented after completion of further studies and evaluations of the mitigation measures provided that performance standards are specified in the mitigation measure. (See, Sacramento Old City Ass'n v. City Council (1991) 229 Cal. App. 3d 1011, 1021.) In Sundstrom v. County of Mendocino, one of the cases cited by commentor, the court recognized that environmental review must be performed at the "earliest feasible stage in the planning process" thereby implicitly recognizing that some studies can be conducted after project approval. (Sundstrom v. County of Mendocino (1988) 202 Cal. App. 3d 296, 307.) See Response H²-305 and H²-322.

H²-326 See Responses H²-305, H²-320 and H²-322. The commentor seems to imply that the studies that are required by developers under the MSHCP should be done by the County before MSHCP approval. This is not improper deferral but rather establishes procedures to obtain information and ensure mitigation as projects are brought forward for Development. It is infeasible for a Plan of this size to even consider doing the analysis called for in the comment and also inefficient because it is too speculative to determine when and where Development will occur.

H²-327 The Draft EIR/EIS does not improperly defer analysis of feasible mitigation measures. See Responses H²-305, H²-320, H²-322 and H²-326.

H²-328 The County is available to meet with Murdock at their request. Despite the commentor's desire to propose mitigation measures, it should be noted that the Draft EIR/EIS does not identify significant impacts specifically related to Murdock's properties. Therefore, no specific mitigation measures related to these properties are considered to be necessary. See Response H²-320.

H²-329 See Responses H²-305, H²-320 through H²-328.

H²-330 This comment purports to summarize state and federal law and portions of the Draft EIR/EIS and no further response is necessary.

H²-331 See Response H²-18. The MSHCP Planning process included extensive consideration of alternatives. The analysis of alternatives was not merely an exercise for the Draft EIR/EIS and the alternatives themselves were by no means "straw men", as characterized in the comment. The exhaustive analysis of project alternatives is clearly documented in the Draft MSHCP and is most markedly evident from the publication of the Alternatives Development Document, a nearly 500 page document prepared in October, 2000. A complete summary of the alternatives development process and consideration of alternatives is provided in the Draft MSHCP. The MSHCP Advisory Committee recommended and the Board of Supervisors elected not to pursue the Existing Reserves Alternative primarily due to the fact that it would not provide coverage for all of the existing listed species and would likely not qualify as an NCCP.

H²-332 Connectivity to existing and proposed HCPs and NCCPs was a consideration in determining the significance of impacts, not overall feasibilityof alternatives.The analysis does not, nor is it required to, compare the proposed MSHCP to other existing or proposed HCPs/NCCPs. Additionally, the amount of private land proposed for conservation on the adjacent HCPs/NCCPs is entirely irrelevant to the topic of habitat connectivity. The Lead Agencies concur that the significance criterion referenced in the comment is not included in Appendix G of the CEQA Guidelines. This criterion was added to provide an analysis of potential Edge Effects. Moreover, the Lead Agencies have discretion to choose thresholds of significance utilized in CEQA/NEPA documents.

H²-333 See Responses H²-331 and H²-332.

H²-334 In conformity with State CEQA Guidelines Section 15126.6, cited by the commentor, the No Project Alternative does discuss existing conditions at the time the Notice of Preparation was published. The Lead Agencies agree with the commentor that the General Plan Update is not an existing condition. However, the planning efforts currently being conducted under the RCIP for the County's General Plan and Countywide circulation element could be adopted in the future. Whether it is adopted or not, activities involving Take of State and/or federal listed species would require individual permitting on a project-by-project basis, as is currently the case. Under the No Project alternative, which discusses the current General Plan, existing reserves would be retained with existing management strategies. See Response F-120.

It is unclear what the commentor means in stating that the No Project Alternative should analyze those species that currently warrant protection under FESA and CESA in the Plan Area, and stating the number of those species at 27. The Draft EIR/EIS' No Project alternative analyzes only those 27 species referred to and not the 51 in the Draft General Plan.

H²-335 See Responses H²-220 and H²-221. This comment describes a process by which the commentor's representatives ranked the species proposed for coverage in the Administrative Draft MSHCP and determined numbers and percentages of the species in accordance with that ranking. This comment does not provide any additional information relevant to the adequacy of the Draft MSHCP, the Draft EIR/EIS or the Draft IA, therefore no additional response is provided.

H²-336 See Responses H²-220 and H²-221.

Regarding the three species referenced in the comment, the great blue heron was not included in the March 7 Administrative Draft of the MSHCP reviewed by the commentor as the species had recently been added to the species list and a species account for this species had not yet been prepared. Complete information on great blue heron is included in the Draft MSHCP. The Nashville warbler and species account was not included in the March 7 Administrative Draft of the MSHCP reviewed by the commentor as the species account was undergoing revision at that time. The species account for Nashville warbler is included in Draft MSHCP. Likewise, Dulzura kangaroo rat was not included in the March 7 Administrative Draft of the MSHCP reviewed by the commentor as the species had recently been added to the species list and a species account for this species had not yet been prepared. Complete information on Dulzura kangaroo rat is included in the Draft MSHCP.

H²-337 See Responses H²-220 and H²-221.

The FESA not only deems it appropriate to include listed, proposed, candidate and unlisted species in an HCP, FESA actually encourages such inclusion. (Section 10 Handbook, pp. 4-1 et seq ("[t]he Services should explain to any applicant the benefits of addressing unlisted species in the HCP and the risks of not doing so, and should strongly encourage the applicant to include as many proposed and candidate species as can be adequately addressed and covered by the permit.") As stated in the Section 10 Handbook, "There are also advantages in addressing unlisted species in the HCP (proposed and candidate species as a minimum), particularly those that are likely to be listed within the foreseeable future or within the life of the Permit. Doing so can protect the Permittee from further delays--e.g., having to revise the HCP and amend the Permit--should species that were not listed at the time the original HCP was approved subsequently become listed. In addition, the 'No Surprises' policy...applies to listed as well as unlisted species if they are adequately addressed in the HCP." (Section 10 Handbook, p. 3-7; see also, p. 4-1.) Moreover, "the decision about what species to include in the HCP is always the applicant's." (Section 10 Handbook, p. 1-16, 4-1.)

H²-338 See Responses G-10, H²-18, H²-93 through H²-122, H²-331 through H²-337 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-339 See Responses G-10, H²-18, H²-93 through H²-122, H²-331 through H²-337 and N³-1 through N³-3. See also Scientific Review Panel Correspondence - Review of : Final Draft Western Riverside County MSHCP Document, April 2003.

H²-340 The MSHCP, the General Plan Update, and the CETAP are independent but interrelated projects which would be considered for implementation regardless of the outcome of the other two projects. Indeed, the General Plan Update is required by state law. Gov. Code, § 65103. The MSHCP, CETAP and the General Plan Update do not trigger one another, can and will proceed independently and do not depend on each other for their justification. The drafters of the three documents have attempted to make them consistent, but this is just good planning, not prohibited piecemealing. The MSHCP project description is adequate. An EIR must include an analysis of the environmental effects of future action if: (1) it is a reasonably foreseeable consequence of the initial project; and (2) the future action will be significant in that it will likely change the scope or nature of the initial project or its environmental effects. Laurel Heights Improvement Ass'n v. Regents of University of California (1998) 47 Cal.3d 376, 396. While CETAP and the General Plan Amendment are proceeding concurrently with the MSHCP, none of the three projects is a consequence of the other.

Burbank-Glendale-Pasadena Airport Authority v. Hensler (1991) 233 Cal.App.3d 577, cited by the commentor, is a case in which condemnation proceedings for expansion of an airport runway were enjoined because the project proponent had not complied with CEQA for the airport runway expansion. In fact, the proponent had adopted a negative declaration for an airport runway of expansion of more limited scope and had failed to perform additional environmental analysis when the scope of the project changed substantially. In Burbank, airport runway expansion was a consequence of the condemnation action and could not have proceeded without it. Blue Ocean Preservation Soc. v. Watkins (1991) 754 F.Supp. 1450, 1457, also cited by the commentor, merely restates the standard in 40 CFR 1508.25, which provides that actions are connected if they: (i) automatically trigger other actions that may require environmental impact statements; (ii) cannot or will not proceed unless other actions are taken previously or simultaneously; or (iii) are interdependent parts of a larger action and depend on the larger action for their justification. As stated above, The MSHCP, CETAP and the General Plan Update do not trigger one another, can and will proceed independently and thus, have independent utility and do not depend on each other for their justification.

H²-341 See Response H²-340.

H²-342 See Response H²-340.

H²-343 See Response H²-340. The RCIP process is properly addressed in both the MSHCP and its EIR/EIS, as explained in Response H²-310.

H²-344 The County disagrees with the commentor's conclusion that the MSHCP avoids analyzing the full extent of its impacts. In Los Angeles Unified School Dist. v. City of Los Angeles (1997) 58 Cal.App.4th 1019, 1028, cited by the comment, the Court of Appeal found that the City had initially conducted a noise impact analysis, which it subsequently, without justification, deleted from its EIR. It also found that the EIR adequately addressed residential noise impacts and could not find cause why, based on the same data underlying that analysis, the EIR could not make findings regarding noise impacts to schools. Accordingly, when it held that an agency must analyze an impact when it has "sufficient reliable data to permit preparation of a meaningful and accurate report on the impact", it did so under factual circumstances completely different than those described in the MSHCP for conducting additional analysis when it becomes feasible after more specific information becomes known. The references within the EIS/EIR cited by the commentor as evidence of segmentation refer to additional site-specific environmental review, adaptive management and monitoring and the MSHCP acquisition process.

There is insufficient data to permit preparation of an accurate report at this time of the impact of all of the projects that could possibly be planned and implemented in the future. State CEQA Guidelines sections 15146 and 15151 state that the degree of specificity required in an EIR depends upon the degree of specificity involved in the underlying activity described in the EIR and that the sufficiency of the information contained in an EIR is reviewed in the light of what is reasonably feasible. The MSHCP is a foundational plan and the process for conserving habitat in western Riverside County. Accordingly, performing additional environmental review at the time it becomes feasible is not segmentation. As to adaptive management and monitoring, the justification for these policies and explanation of why they do not constitute deferred mitigation and, therefore, segmentation, see Response H²-231.

As explained in Response H²-11, FESA contemplates that conservation lands will be purchased in a timely manner as funds become available. This method of conservation of land acquisition forms the basis of most regional HCPs. (See San Joaquin Plan, San Diego MSHCP, Orange County NCCP.) Because the precise mitigation lands that might be available for acquisition in the coming years cannot be adequately predicted at this time, the MSHCP properly identifies the Criteria Area and Criteria to facilitate future acquisition of mitigation lands for the Plan criteria. This is consistent with the intent of the conservation planning laws and does not constitute improper segmentation under CEQA because of the flexibility contained within State CEQA Guidelines sections 15146 and 15151.

H²-345 It is not necessary to analyze the RCIP process within the MSHCP environmental review process for the reasons explained in Response H²-340. Regardless, the RCIP process is properly accounted for in both the MSHCP and its EIR/EIS, as explained Response H²-310. The County disagrees that the public has only had the opportunity to review the MSHCP in isolation since the General Plan Update review period was from August 20 through October 4, 2002, and the CETAP documents review period was from July 19 to November 15, 2002; and, in fact, the commentor has submitted comments on these documents and is thus aware of their contents. Also, the comment provides no support for its allegation that preparing separate MSHCP environmental documentation, which refers to CETAP and General Plan Update environmental review documents, results in an underestimation of environmental impacts. See Responses H²-15 and H²-340.

H²-346 The Lead Agencies disagree with the comment that the MSHCP EIR/EIS is a "postapproval environmental review" of the MSHCP. MSHCP environmental review has been coordinated with project planning from its earliest stages, as required by CEQA and NEPA. CEQA requires environmental document preparation and review to be coordinated in a timely fashion with the existing planning, review, and project approval processes being used by each public agency. These procedures, to the maximum extent feasible, are to run concurrently, not consecutively. CEQA Guidelines § 15004(c). Federal agencies are required to integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays later in the process, and to head off potential conflicts. (40 CFR 1501.2.)

Redevelopment Agency v. Norm's Slauson (1986) 173 Cal.App.3d 1121, cited in the comment, does not require the MSHCP process to be completely disengaged from the General Planning process in contravention of CEQA and NEPA. That case addressed legal issues concerning the State's power of eminent domain. Unlike the Norm's Slauson case, the County has not yet entered into any contracts for services to implement the MSHCP, CETAP or General Plan Update. Nor has the County issued revenue bonds to finance the project. In Norm's Slauson, the city had placed its good faith and credit (if not actually money from its coffers) at risk by issuing revenue bonds which it represented to the public would be repaid. The County has not made a commitment in reference to the MSHCP, CETAP or General Plan Update.

In Citizens for Responsible Government v. City of Albany (1997), 56 Cal.App.4th, 1199, also cited in the comment, the City of Albany was found to violate CEQA for doing the opposite of what the County has done with the MSHCP. The Court of Appeals in City of Albany did not have concerns about the City approving a project per se. Their concern was that the City had performed no environmental review before approving the project. They cited to State CEQA Guidelines section 15004 for the proposition that environmental review should be integrated into project planning, as it has been with the MSHCP. It did not see concurrent environmental review as a binding commitment of discretion.

The Federal Government in Metcalf v. Daley (9th Cir. 2000) 214 F.3d 1135, combined the two factual situations in the cases cited above. An agreement was actually executed before performing any NEPA environmental review. That is certainly not the case as to the MSHCP. Environmental review for the MSHCP has been integrated into project planning and is thorough, complying with all applicable laws. Moreover, the USFWS has not signed the IA and will not do so until all of the required documents and findings have been prepared. In contrast to the facts of the cases cited above, the MSHCP process has effectively integrated environmental analysis into project planning, as further explained in the Responses.

H²-347 The hearings have occurred for the General Plan Update and the Board is considering the document at this time. The General Plan Update does not depend on MSHCP or CETAP implementation and recommendations have been made by staff to clarify the relationship between the MSHVP and the General Plan. Additionally, the General Plan provides mitigation for its impacts to biological resources independent of the MSHCP. See Responses H²-340 and H²-346.

H²-348 It is unclear what concern is being expressed by this comment. Most EIRs are written contemplating the implementation of a particular project. The EIR is required to contain a range of reasonable alternatives to a proposed project. (State CEQA Guidelines 15126.6) The alternatives selected for consideration must meet most of the project objectives but which are capable of avoiding or substantially lessening any significant effects of the project, even if these alternatives would impede to some degree the attainment of the project objectives, or would be more costly. (Ibid.) Public input is solicited to determine if an alternative to the project should be selected, even if it impedes the attainment of some project objectives or is more costly. Theoretically, an alternative could be selected as part of that public deliberation.

The process described above does not prohibit the preparation of an EIR for a proposed project. When the Supervisors instructed County Staff to design the MSHCP in accordance with "Alternative 1", they were providing Staff with a framework for analysis. This in no way taints the County's perception of the impacts for the other alternatives or commits the county to approving the MSHCP as currently envisioned any more than any other CEQA document that analyzes a proposed project.

H²-349 The commentor confuses the significant distinction between the Service accepting an application and the Service approving the application. To approve the application, the Service will need to make numerous findings. Prior to issuing a Record of Decision for the EIS, the Service will be required to identify all alternatives considered by the agency in reaching its decision, specifying the alternative or alternatives which were considered to be environmentally preferable in conformity with the requirements of 40 CFR 1505.2. Additionally, a biological opinion must be prepared and a report must be written making the findings set forth in sections 7(b)(3) and 7(b)(4) of the ESA and 50 CFR 402.14(h)-(i). (HCP Handbook, p. 6-16.) The HCP Handbook contemplates that environmental documents will be in draft form when the take permit application is submitted. Section 6.B.2.b., at page 6-5 of the HCP Handbook states:

"The formal application phase begins with receipt by the appropriate Regional Office of a 'complete permit application' package consisting, at a minimum, of the application form, application fee (if applicable), the proposed HCP, the Implementing Agreement (if required), draft NEPA analysis (EAM, EA, or EIS), which was submitted by the applicant, and a certification by the Field Office that it has reviewed these documents and finds them to be statutorily complete. Prompt submission of each of these documents is essential to efficient processing of the permit application because they either initiate the processing phase or are required for the Federal Register notice initiating the 30-day public comment period." (emphasis added)

The County disagrees with the commentor's unsupported conclusion that the County's submittal of an application before comments are received taints the Service's perception of the impacts for the other alternatives considered. The Service has cooperated with the County in the MSHCP process as contemplated by Congress, as stated at page 3-1 of the HCP Handbook:

"Congress intended the HCP process to be used to reduce conflicts between federally listed species and non-Federal development and land use, and to provide a framework for 'creative partnerships' between the public and private sectors in endangered species conservation. Congress also intended the FWS and NMFS to be not just regulators of the HCP program, but active participants in providing technical assistance, and that 'comprehensive' HCPs could be developed jointly by the FWS, NMFS, the private sector, and local, state, and Federal agencies, with the Services as a technical advisor (H.R. Rep. No. 97-835, 97th Congress, Second Session)."

By cooperating in the MSHCP development and application process the Service is not tainted and the County is not pre-committed, as averred by the commentor. Instead, each is fulfilling its intended purpose under the Federal Endangered Species Act.

The "Notice of Availability of a Draft Environmental Impact Statement/ Environmental Impact Report and Receipt of an Application for an Incidental Take Permit for the western Riverside County Multiple Species Habitat Conservation Plan" reported at 67 Federal Register 69236 (Nov. 15, 2002) is a notice that the Service is required to publish under FESA regulations. (See 50 C.F.R. §§ 17.22, 17.32(b)(1)(ii).) To the extent the comment suggests that the Notice constitutes Service "acceptance" of the MSHCP or the related take permit application, it is incorrect. The Notice states the Service has received an application for such a permit, not accepted or approved it yet. Soliciting comments from the public is intended to increase public awareness of the plan and the related environmental documents. The Service will review the MSHCP in light of the findings it is required to make under FESA. How the Service's "perception" might be "tainted" from receiving an application or issuing a notice is unclear. The County Board of Supervisors will ultimately determine whether to approve the MSHCP or an alternative, or take a different course of action. The County is not "essentially committed" to any particular course of action at this time.

H²-350 See Responses H²-346 through H²-349. Neither Lead Agencies have committed themselves to taking any action whatsoever.

H²-351 See Responses H²-1 through H²-350 and complete Response to Comment Letters N³ and C⁴. Since more specific comments are not given, more specific responses cannot be provided.

H²-352 State CEQA Guidelines section 15088.5 subsection (a) states that, "[a] lead agency is required to recirculate an EIR when significant new information is added to the EIR." However, "[n]ew information added to an EIR is not "significant" unless the EIR is changed in a way that deprives the public of a meaningful opportunity to comment upon a substantial adverse environmental effect of the project or a feasible way to mitigate or avoid such an effect (including a feasible project alternative) that the project's proponents have declined to implement." (Ibid.) Further recirculation is not required where the new information added to the EIR merely clarifies or amplifies or makes insignificant modifications in an adequate EIR. ( State CEQA Guidelines, § 15088.5(b).)

As explained in the preceding Responses, the Lead Agencies are not aware of any facts that require revision or recirculation of the Draft EIR/EIS. Nor does the commentor suggest any additional feasible mitigation measures or alternatives considerably different from others previously analyzed that would require recirculation under Section 15088.5. Although some minor modifications and clarifications to clarify the Draft EIR/EIS are being made, these changes are not significant new information requiring recirculation. The County believes that the MSHCP is a feasible and cost efficient plan that fully complies with both state and federal laws. Moreover, the Draft EIR/EIS "adequately apprise[s] all interested parties of the true scope of the project for intelligent weighing of the environmental consequences of the project." (City of Santee v. County of San Diego (1989) 214 Cal.App.3d 1438, 1454-1455.)

H²-353 This comment purports to summarize case law and no further response is required.

H²-354 As addressed in the previous responses, the County believes the MSHCP is a feasible and cost efficient plan that fully complies with both state and federal laws. See Response H²-352.

H²-355 This comment reiterates pervious comments that have been previously responded to.

H²-356 See Responses N³-4 and N³-5. The Wildlife Agencies will make a decision on Permit issuance after the final documents have been prepared and submitted to them. The commentor's recommendations concerning future provisions and versions of the MSHCP will be submitted to the decision makers.

H²-357 The comments in this attachment relate specifically to the County's proposed General Plan. As such, these comments would in no way alter and do not relate to the Draft MSHCP or the analysis in the Draft EIR/EIS. It should be noted that based upon comments received on the General Plan, staff has recommended changes to how the MSHCP is referenced in the General Plan which is the subject of this attachment. See Staff Reports submitted to the Board on staff recommendations on revisions to the General Plan.

H²-358 The comments in this attachment relate specifically to the County's proposed General Plan. As such, these comments would in no way alter and do not relate to the Draft MSHCP or the analysis in the Draft EIR/EIS. It should be noted that based upon comments received on the General Plan, staff has recommended changes to how the MSHCP is referenced in the General Plan which is the subject of this attachment. See Staff Reports submitted to the Board on staff recommendations on revisions to the General Plan.

H²-359 This attachment appears to be a vegetation map of the Alberhill Ranch properties. See Response H²-253.

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Comment Letter H³ - John M. DeBevoise, January 15, 2003

H³-1 The vegetation map depicted in the Draft EIR/EIS and the Draft MSHCP represent "collapsed" or generalized Vegetation Communities. It is expected that vegetation coverage on the ground will vary from this generalized mapping. A more detailed breakdown of the vegetation map was used in the analysis performed for the MSHCP. The level of detail provided in the vegetation mapping represents the best scientific and commercially available data, and is considered appropriate for landscape-level conservation planning.

H³-2 See Response H³-1.

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Comment Letter H⁴ - Riverside County Farm Bureau, March 6, 2003

H⁴-1 The MSHCP is structured to allow the Local Permittees to select an implementation mechanism that is consistent with the FESA Section 10(a) and the NCCP Act issuance criteria. The MSHCP does not propose new Riverside County General Plan policies, ordinances or other new regulation. The County of Riverside has developed an implementation structure for the MSHCP that relies on acquisition of property from willing sellers.

H⁴-2 As noted in Section 4.4.2 of the Draft MSHCP, the federal government and State of California have committed to acquire and contribute in the aggregate approximately 56,000 acres, with 6,000 of these acres being attributable to mitigation for State Permittee projects.