Agenda Item

AGENDA STAFF REPORT

 

ASR Control 23-000867

 

MEETING DATE:

12/19/23

legal entity taking action:

Orange County Flood Control District

board of supervisors district(s):

All Districts

SUBMITTING Agency/Department:

OC Public Works (Approved)

Department contact person(s):

Nardy Khan (714) 647-3906

 

 

Giles Matthews (714) 647-3933

 

 

Subject: Approve Soquel Canyon Mitigation Bank Credit Reservation for Various Projects

 

ceo CONCUR

County Counsel Review

Clerk of the Board

Concur

Approved Agreement to Form

Consent Calendar

 

 

3 Votes Board Majority

 

 

 

Budgeted: Yes

Current Year Cost: $750,000

Annual Cost: N/A

 

 

 

Staffing Impact:

No

# of Positions:

Sole Source: N/A

Current Fiscal Year Revenue: N/A

Funding Source: Fund 400: 100%

County Audit in last 3 years: No

Levine Act Review Completed: Yes

 

Prior Board Action: 1/24/2023 #8, 6/28/2016 #36, 6/23/2015 #66, 5/21/2013 #45

 

RECOMMENDED ACTION(S):

 

 

1.

Approve the Agreement for Reservation of Credits with Land Veritas Corp. for various projects completed under the Countywide Long Term Maintenance Permit in an amount not to exceed $750,000, upon fully executed agreement.

 

2.

Authorize the Director of OC Public Works or designee to execute Purchase Agreements between the Orange County Flood Control District and Land Veritas Corp. to purchase the reserved credits so long as the total sum does not exceed $750,000.

 

 

 

 

SUMMARY:

 

Approval of the Agreement for Reservation of Credits with Land Veritas Corp. will secure mitigation credits at the Soquel Canyon Mitigation Bank at a favorable price point and will help meet the goal of increased flood protection to residences and businesses in Orange County.

 

 

 

BACKGROUND INFORMATION:

 

Sections 401 and 404 of the Federal Clean Water Act, administered by the U.S. Army Corps Engineers (USACE), the Porter Cologne Act, administered by the Regional Water Quality Control Board, and Section 1602 of the California Fish and Game Code, administered by the California Department of Fish and Wildlife (CDFW), require the Orange County Flood Control District (District) to compensate for permanent impacts to Waters of the U.S. and Waters of the State of California (also known as jurisdictional waters). Compensatory mitigation can be accomplished by either purchasing credits from an approved mitigation bank or by conducting permittee responsible compensatory mitigation project(s). Permittee responsible compensatory mitigation requires identifying land to conduct restoration, typically, five years of monitoring and reporting and in perpetuity maintenance. In most cases, this option is more expensive than purchasing credits from an approved mitigation bank. OC Public Works makes an effort to modify a project, when possible, to reduce or eliminate the requirement for compensatory mitigation when planning for flood control projects.

The Soquel Canyon Mitigation Bank (Bank), owned by Land Veritas Corp. (Veritas), is the only mitigation bank available to Orange County that is approved by the USACE, the Santa Ana Regional Water Quality Control Board and the CDFW. The Bank utilizes a tiered pricing model for various credits based on the type of habitat and impact they are approved to mitigate for, with a limited number of credits available at each price point. Attachment A contains information regarding the Bank, located in Chino Hills in San Bernardino County.

 

The Bank currently has a small number of mitigation credits available at a price of $250,000 per acre. Additional credits are available at a higher price point. The Bank has agreed to structure a Reservation of Credits Agreement MA-080-24010631 (Agreement) in the amount of $750,000, which requires a $250,000 deposit, with additional credits available for use with the Countywide Long Term Maintenance Permit (CLTMP) as needed. There is no penalty beyond the initial $250,000 deposit if additional credits are not purchased. Self-performance of mitigation requirements would be more expensive than paying money to the Bank. Similarly, forgoing the reservation in lieu of purchasing credits at a later date would require purchasing credits at a higher price point.

 

There is an immediate need for the purchase of mitigation credits in the amount of $250,000 as significant erosion has been identified within the Atwood Channel east of the Miller Basin and west of Jefferson Street in the City of Anaheim. This channelized flood control drainage is designated as E04 under the Countywide drainage identification system. This erosion threatens the adjacent roadway and nearby infrastructure. The Atwood Channel Rehabilitation Project (Project) will repair the identified erosion and safeguard against future erosion.

The Project will provide protection to the channel slope and prevent potential significant washouts that could undermine structures of adjacent privately-owned properties. The Project will also involve installation of rock rip rap along both banks of the channel to protect against future erosion. Some portions of these discrete channel segments are already partially or completely riprap lined.

 

The CLTMP and pending Section 404 permit from USACE for the Project require the District to compensate for impacts to Waters of the United States caused by the Project and the Bank is the only mitigation bank that is accepted by USACE for this Project and for other CLTMP activities.

 

Similar projects are conducted routinely throughout the County of Orange (County) under the umbrella of the CLTMP. These projects are conducted at a smaller scale and do not require individual regulatory approval. Mitigation for these routine projects is tallied at the end of the year and included in an annual report to the regulatory agencies. The mitigation credit required for the term of the CLTMP is anticipated to cost approximately $500,000.

 

Prior Board of Supervisors (Board) actions regarding purchase agreements with Veritas are summarized in the table below.

 

Board Date

Project

Amount

6/23/2015

Compensatory mitigation to convert the Greenville Banning Channel between California Avenue and I-405 from rock rip rap to concrete.

$253,750

6/28/2016

Compensatory mitigation to construct a concrete pad in front of the Villa Park Dam to facilitate maintenance.

$170,000

1/24/2023

Compensatory mitigation to convert the Carbon Canyon Diversion Channel south of Orangethorpe Avenue and east of Miller Bain from riprap to concrete.

$500,000

 

The mitigation requirement for the Project and CLTMP is higher than in all of the above, prior Board actions due to the larger impacted area when compared to the previous projects.

 

OC Public Works recommends District approval of the Agreement with Veritas for the Project for reservation of $750,000 of mitigation credits in the current fiscal year. The District has confirmed that the required credits are available for purchase upon District approval. OC Public Works also recommends the District authorize the Director of OC Public Works or designee, with concurrence of the Office of County Counsel, to execute Purchase and Sale Agreements between the District and Veritas for various projects completed under the CLTMP with the condition that the total sum does not exceed $750,000.

 

Compliance with CEQA: This Project is a necessarily included element of the Project considered in Final Initial Study/Mitigated Negative Declaration (IS/MND) IP No. 11-444 Countywide Long-Term Routine Maintenance Permitting Program prepared for OC Public Works and the District, previously approved by the Board on May 21, 2013, and the OC Public Works OC Engineering Countywide Routine Maintenance Manual (October 2012) included as part of IS/MND IP No. 11-444, which collectively adequately addressed the effects of the proposed Project. No substantial changes have been made in the Project, no substantial changes have occurred in the circumstances under which the Project is being undertaken and no new information of substantial importance to the Project, which was not known or could not have been known when the Final IS/MND IP No. 11-444 was approved has become known; therefore, no further environmental review is required.

 

 

 

FINANCIAL IMPACT:

 

Appropriations for this Agreement are included in Fund 400, OC Flood, FY 2023-24 Budget for Maintenance Improvement Projects that require the payment of compensatory mitigation.

 

If the credits have not been purchased by the closing date this Agreement shall terminate, the County shall forfeit the deposit and the bank sponsor can sell the credits to another buyer.

 

 

 

STAFFING IMPACT:

 

N/A

 

ATTACHMENT(S):

 

Attachment A - Soquel Canyon Mitigation Bank Brochure
Attachment B - Agreement for Reservation of Credits MA-080-24010631 with Land Veritas Corp
Attachment C - Sections 401 and 404 of the Clean Water Act
Attachment D - Section 1602 of the California Fish and Game Code