Section 4.2 Biological Resources - LA City Planning

Section 4.2 Biological Resources

4.2.1 Introduction

This section provides an overview of biological resources within the project area and evaluates the effects of the Proposed Project on biological resources during construction and operation. The section is organized as follows:

Regulatory Framework describes the applicable federal, state, and local laws and guidelines relative to biological resources.

Existing Setting provides a general summary and overview of biological resources within the project area.

Methodology describes the approach used to evaluate project impacts

Thresholds of Significance lists the thresholds used in determining significant impacts as identified in Appendix G of the State CEQA Guidelines and the City of Los Angeles CEQA Thresholds Guidelines.

Impacts and Mitigation Measures discusses the effects of the implementation of the Proposed Project on existing biological resources. Mitigation measures are identified as necessary and feasible to reduce significant impacts. The Significance of Impacts After Mitigation discussion identifies residual impacts after application of mitigation measures.

As discussed in the Notice of Preparation, provided in Appendix C, Notice of Preparation/Scoping, any potential tree removal/replacement would occur in accordance with the Los Angeles Municipal Code, including the Native Tree Protection Ordinance No. 177,404, and the recommendations of the Department of Public Works Urban Forestry Division, and thus no conflict with local policies or ordinances protecting biological resources would occur. Further, there are no County Habitat Conservation Plans (HCP) or Natural Community Conservation Plans (NCCP) within the project area. Therefore, impacts related to conflicts with local policies or ordinances protecting biological resources and adopted habitat conservation plans, natural community conservation plans or other adopted local, regional, or state habitat conservation plans do not require analysis in the EIR and are not addressed herein.

4.2.2 Regulatory Framework

4.2.2.1 Federal

Federal Endangered Species Act

The Federal Endangered Species Act (ESA) of 1973, as amended, protects species listed as endangered or threatened. The ESA also regulates actions that would modify or degrade habitat to an extent that would significantly impair essential activities of listed species (breeding, feeding, and shelter). The U.S. Fish and Wildlife Service (USFWS) and National Oceanic and Atmospheric Administration (NOAA) administer the ESA. Section 7 of the ESA requires federal agencies to aid in the conservation of listed species, and to ensure that federal agencies that undertake projects or issue permits will not

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jeopardize the continued existence of listed species or adversely modify designated critical habitat. The law also prohibits actions that cause a "taking" of any listed species of endangered fish or wildlife.

Federal Clean Water Act

The federal Clean Water Act (CWA) (33 United States Code [USC] Section 1344) is the primary law regulating wetlands and waters. Section 404 (b) prohibits the discharge of dredged or fill materials into the waters of the United States, including wetlands, except as permitted under separate regulations by the U. S. Army Corps of Engineers (USACE) and U. S. Environmental Protection Agency (USEPA).

Under Section 404 of the CWA, the USACE regulates discharges of dredged or fill material into "Waters of the United States," including wetlands. "Waters of the United States" includes all waters which are currently used, or were used in the past, or may be susceptible to use, in interstate or foreign commerce; all interstate waters including interstate wetlands; all other waters such as intrastate lakes, rivers, streams (including intermittent streams), the use, degradation, or destruction of which could affect interstate or foreign commerce; and impoundment of waters otherwise defined as Waters of the U. S. under the definition; and tributaries of waters defined previously.

Rivers and Harbors Act

The Rivers and Harbors Appropriation Act of 1899 (33 USC 403), commonly known as the Rivers and Harbors Act, prohibits the construction of any bridge, dam, dike, or causeway over or in navigable waterways of the United States without congressional approval. Section 10 requires authorization from the USACE for the construction of any structure in or over any navigable water of the U.S. The law applies to any dredging or disposal of dredged materials, excavation, filling, rechannelization, or any other modification of a navigable water of the U.S., and applies to all structures.

Section 14 of the Rivers and Harbors Act, codified in 33 USC 408 (commonly referred to as "Section 408") authorizes the USACE to grant permission for the alteration or occupation or use of a USACE civil works project if it is determined that the activity will not be injurious to the public interest and will not impair the usefulness of the project.

Federal Migratory Bird Treaty Act

The federal Migratory Bird Treaty Act (MBTA) (16 USC Sections 703-711) protects most native bird species from destruction or harm, including the non-permitted take of migratory birds under authority of the USFWS and the California Department of Fish and Wildlife (CDFW). This protection extends to individuals as well as any part, nest, or eggs of any bird listed as "migratory." Nearly all native North American bird species are on the MBTA list. The MBTA decrees that all migratory birds and their parts (including eggs, nests and feathers) are fully protected. Under the act, taking, killing, or possessing migratory birds is unlawful. Activities that would result in an impact to migratory birds include, but are not limited to, the destruction of migratory bird nesting habitat during the nesting season when eggs or young are likely to be present. Under the Act, surveys are required to determine if nests will be disturbed and, if so, a buffer area with a specified radius around the nest must be established so that no disturbance or intrusion occurs until the young have fledged and left the nest. The size of the buffer area varies with species and local circumstances (e.g., presence of busy roads), and is based on the professional judgment of the monitoring biologist, in coordination with CDFW.

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Executive Order for Wetland Protection 11990

Executive Order for Wetland Protection 11990 (EO 11990) regulates the activities of federal agencies with regard to wetlands. EO 11990 states that a federal agency, such as the Federal Highway Administration, cannot undertake or provide assistance for new construction located in wetlands unless the head of the agency finds: (1) that there is no practicable alternative to the construction, and (2) the proposed project includes all practicable measures to minimize harm.

Fish and Wildlife Coordination Act

The Fish and Wildlife Coordination Act of 1994, as amended, (16 USC Section 661-667e) requires that whenever waters or a channel of a stream or other body of water are proposed or authorized to be modified by a public or private agency under a federal license or permit, the federal agency must first consult with the USFWS and/or NOAA Fisheries Service and with the head of the agency exercising administration over the wildlife resources of the state (i.e., CDFW) where construction would occur, relative to conservation of birds, fish, mammals, and all other classes of wild animals and all types of aquatic and land vegetation upon which wildlife is dependent.

4.2.2.2 State

California Endangered Species Act

Sections 2050 through 2089 of the California Fish and Game Code comprise the California Endangered Species Act (CESA). The CDFW is responsible for the administration of CESA. Unlike the federal Endangered Species Act, there are no state agency consultation procedures under the California Endangered Species Act. For projects that affect both a state- and federally-listed species, compliance with the federal ESA will satisfy the CESA if CDFW determines that the federal incidental take authorization is "consistent" with CESA. Projects that result in a take of a listed species require a take permit under CESA. CESA protection extends to species proposed for listing (i.e., candidate species) in some circumstances. The federal and/or state acts also lend protection to species that are considered rare enough by the scientific community and trustee agencies to warrant special consideration, particularly with regard to protection of isolated populations, nesting or den locations, communal roosts, and other essential habitat.

Migratory Bird Protection

Section 3500 of the California Fish and Game Code is analogous to the federal MBTA. Specifically, sections 3500 through 3705 prohibit the taking of nesting birds, their nests, eggs, or any portion thereof during the nesting season. Typically, the breeding/nesting season is from February 15 through August 30.18 Depending on each year's seasonal factors, the breeding season can start earlier and/or end later.

Wetland Regulation

At the state level, wetlands and waters are regulated primarily by the CDFW and the Regional Water Quality Control Boards (RWQCBs). The RWQCBs were established under the Porter Cologne Water Quality Control Act to oversee water quality. The RWQCB also issues water quality certifications in compliance with Section 401 of CWA. Section 401 requires states to certify that any action subject to a permit issued by a federal agency, such as a Section 404 permit issued by the USACE, meets all state water quality standards. Sections 1600 through 1607 of the California Fish and Game Code (CFGC)

18 The nesting season varies according to species, but is generally February 15 through August 15 for most birds and January 31 through August 31 for raptors.

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require any agency that proposes a project that will substantially divert or obstruct the natural flow of, or substantially change the bed or bank of, a river, stream, or lake to notify the CDFW before beginning construction. If the CDFW determines that the project may substantially and adversely affect fish or wildlife resources, a Lake or Streambed Alteration Agreement is required. CDFW jurisdictional limits are usually defined by the tops of the stream or lake banks, or the outer edge of riparian vegetation, whichever is wider. Wetlands under jurisdiction of the USACE may or may not be included in the area covered by a Streambed Alteration Agreement obtained from the CDFW.

California Coastal Act

The California Coastal Act is implemented by the California Coastal Commission, which works in partnership with local governments to protect shoreline public access and recreation, terrestrial and marine habitats, views of the coast and scenic coastal areas, and other coastal resources. Development within the coastal zone is subject to permitting through issuance of a Coastal Development Permit by the California Coastal Commission and/or the Local Coastal Program.

4.2.2.3 Local

Urban Forestry Division

The City of Los Angeles Department of Public Works includes an Urban Forestry Division responsible for developing policies for a reforestation program for City parks. The Recreation and Parks Tree Preservation Policy is the primary regulatory tool that gives direction for orderly protection of specified trees, maintains their value, and avoids significant negative impact to the ecosystem.

Native Tree Protection Ordinance

The City of Los Angeles enacted an oak tree protection ordinance in 1982 to protect oak trees in the City. Although the ordinance slowed the oak tree decline, the oak population, as well as that of other native tree species, continued to decline. In an effort to further slow the decline of native tree habitat, the City passed an amended Native Tree Protection Ordinance (Ordinance No. 177,404), which became law on April 23, 2006. The Native Tree Protection Ordinance protects all native oak tree species (Quercus spp), California Sycamore (Platanus racemosa) (also known as western sycamore), California Bay (Umbellularia californica), and California Black Walnut (Juglans californica) measuring 4 inches or more in cumulative diameter, 4 1/2 feet above the ground level at the base of the tree.

The removal of protected trees requires a removal permit by the Board of Public Works. Any act that may cause the failure or death of a protected tree requires inspection by the City's Department of Public Works (DPW), Bureau of Street Services, and Urban Forestry Division. Although the law does not require a permit for the pruning of protected trees, the City recommends consultation with a registered consulting arborist or certified arborist prior to the pruning of protected trees (City of Los Angeles DPW, 2015).

Heritage Trees

The City of Los Angeles has identified a collection of trees with historical, commemorative, or horticultural significance. The list of designated Heritage trees remains open for new designations and the Department of Parks and Recreation is responsible for the maintenance and protection of these trees.

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City of Los Angeles Conservation Element

The City's General Plan is a comprehensive declaration of purposes, policies, and programs for the development of the City of Los Angeles. The Citywide General Plan Framework Element (Framework Element) establishes the overall policy and direction for the General Plan (City of Los Angeles, 2001). It includes a long-range strategy to guide the comprehensive update for the General Plan's other elements. Chapter 6, Open Space and Conservation, of the Framework Element includes goals, objectives, and policies for the provision, management, and conservation of the City's open space resources, including Sensitive Ecological Areas (SEAs), as identified by the County of Los Angeles, wildlife corridors, and natural animal ranges. The Conservation Element of the General Plan addresses endangered species, habitats, wildlife corridors, and wetlands occurring in the City and identifies policies intended to protect, restore, and enhance these biological resources. Goals, objectives, and policies from the Framework and Conservation Elements related to biological resources and relevant to the Proposed Project are listed below in Table 4.2-1.

4.2.3 Existing Setting

The project area is a highly developed area in the western portion of the City of Los Angeles, consisting primarily of commercial, residential, office, and industrial development. The project area is also generally surrounded by dense urban development, with the exception of the northern WLA TIMP boundary located at the foothills of the Santa Monica Mountains and the western CTCSP boundary located along the Santa Monica Bay. The proposed transportation improvements would occur within this urbanized setting, primarily along existing rights-of-way (e.g., roadways and sidewalks) that have limited, if any, biological resources. However, throughout the project area, some plant and animal habitat does exist. These habitats are confined to open space areas that are generally surrounded by urban development. Examples include the Ballona Wetlands, Penmar Golf Course, Cheviot Hills Park, and several undeveloped areas on the federal property in the unincorporated area of Sawtelle, including the Los Angeles National Cemetery.

Habitats are areas that support the survival of wild animals and native plants, including native plant environments and trees that serve as stopovers and nesting places for migratory birds. Habitat types within the project area include: inland habitats, wildlife corridors, coastal wetlands, sandy beaches, and SEAs. Inland habitats are natural or artificially created refuges or water bodies that provide habitats for resident species or stopovers for migratory birds. Inland habitats include undeveloped areas, park and open space areas, and other areas with extensive natural or introduced vegetation. Wildlife corridors are land segments that connect two or more large habitat areas and provide a habitat for movement between those areas. Wetlands are transitional lands between water and land systems where the water table is usually at or near the surface, or the land is covered by shallow water. Sandy beaches are located along the Santa Monica Bay. They are relatively unstable habitats due to daily sand movement associated with waves, currents, wind, and seasonal cycles of sand movement.

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