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email from USFWS and one verbal comment from the RWQCB, and no other comments to date. 1. United States Fish and Wildlife Service The USFWS does "not entirely agree with the response to our comments and are still concerned the development may result in take of federally listed species. Species are not confined to critical habitat and can move throughout the landscape. Effects to critical habitat and effects to listed species are two separate issues and it is inappropriate to conclude species absence due to a lack of one or all of the primary constituent elements that comprise critical habitat. Additionally, the California Natural Diversity Database is a useful but limited tool and species absence cannot be confirmed by lack of records reported or distance from a known record." Primary constituent elements or PCE's is the criteria published by Federal and State Responsible Agencies to determine the likelihood of the presence of species and /or their habitat areas. The applicant's consultants followed the USFWS and CDFG guidelines for evaluating the habitat on the project site and within the proposed grading areas and concluded that the likelihood of species was very low. The IS /MND references the locations of protected species in the vicinity of the Yee property. To address the potential that species may pass through the site on a very rare occasion, site specific analyses will be completed before construction and, for whipsnake, a silt fence will be installed prior to and during construction. 2. Regional Water Quality Control Board As stated to staff, the RWQCB's previous concerns have been addressed by not filling the channel adjoining Foothill Road and placing the driveway to Lot 3 and 4 above the top -of -bank level of the ephemeral stream. The RWQCB representatives believe the four lots can efficiently address stormwater runoff treatment within the lots themselves. Staff notes that the percentage of area to building envelopes to the site is very low and that the open space area will remain open and covered by deed restrictions. While it can never be categorically determined that a protected species will never enter the Yee property, staff considers the likelihood to be very low. And, as conditioned, the applicant must receive all agency environmental permits before the City will issue its permits to allow construction to begin. The environmental issues of this application have been evaluated by the applicant's consultants, the reports have been evaluated and accepted by staff, and are addressed with applicable conditions. For example, any impact to a jurisdictional intermittent and /or ephemeral watercourse will require a 1602 Streambed Alteration permit from the CDFG. Hence, staff considers the Mitigated Negative Declaration to be the appropriate environmental instrument for this applicant and that it can be issued in conformance to the California Environmental Quality Act. If subsequent information is conveyed to staff on the environmental status of this applicant, the information will be evaluated before the proposal goes to City Council and, if necessary, the Initial Study /Mitigated Negative Declaration will be re- circulated and the item brought back to the Planning Commission for review. Item 6.b., PUD- 87- 19 -03M Page 33 of 37 April 28, 2010