David Harlow, Director, Desert Renewable Energy Conservation Plan (DRECP) Scott Flint, California Energy Commission

Transcription

1 Memorandum Date: To: David Harlow, Director, Desert Renewable Energy Conservation Plan (DRECP) Scott Flint, California Energy Commission Cc: From: Terah Donovan and David Zippin, ICF International Subject: Interim Project Review Process for the Desert Renewable Energy Conservation Plan The Desert Renewable Energy Conservation Plan (DRECP) is expected to be completed by January Until permits are issued, renewable energy projects will be proposed within the DRECP Plan Area that require endangered species compliance. Because these projects may affect the level of impacts assessed for the DRECP and/or the conservation strategy proposed, it is critical to identify these projects early and evaluate them based on the framework proposed by the DRECP. This memorandum proposes a process for applicants to follow for projects proposed while the DRECP is being developed but before the DRECP is permitted. This memo also describes the review process that state and federal wildlife agencies will follow to evaluate projects for consistency with the DRECP. This interim review process is required by the NCCP Act and DRECP Planning Agreement. To facilitate this process, this memo clarifies 1) the projects that are required to provide early notification, 2) the information required for this notification, and 3) the timeline for the interim review process. This memo also describes the statutory requirements for interim project review, summarizes existing project review processes, and describes how the proposed interimreview process will integrate with these existing processes. Unresolved issues are also identified. This memo is a preliminary proposal for consideration by the DRECP Renewable Energy Action Team and the Stakeholder Committee. Once reviewed and revised, the Bureau of Land Management (BLM), California Department of Fish and Game (CDFG), California Energy Commission (CEC), and U.S. Fish and Wildlife Service (USFWS) are expected to adopt the guidance for the interim project review process and apply it to all interim projects that occur until the DRECP permits are issued. Projects that have received all their local, state, and federal permits by December 31, 2010, or are identified as Existing Projects in the Planning Agreement are not subject to the process described herein.

2 Page 2 of 14 Background WORKING DRAFT A Renewable Energy Action Team (REAT) was formed to allow for a more efficient and expedite the permitting process for renewable energy projects in California to achieve the 33% renewable portfolio standard by 2020 while conserving endangered species and natural communities at the ecosystem scale (Executive Order S 14 08). The REAT is composed of four agencies: BLM, CDFG, CEC, and USFWS. In addition, the California Public Utilities Commission, the California Independent System Operator, the National Park Service, the Department of Defense and the U.S. Environmental Protection Agency (U.S. EPA) are cooperating and working closely with the REAT. The REAT agencies are responsible for developing the DRECP, which is a habitat conservation plan (HCP) under Section 10 of the Federal Endangered Species Act of 1973, as amended (Federal ESA) and natural community conservation plan (NCCP) under the Natural Communities Conservation Planning Act of 2002 (NCCP Act). The NCCP Act requires that NCCP participants identify and report projects that occur during development of the plan that may conflict with preliminary conservation objectives of the NCCP. The Act defines these interim projects broadly as discretionary projects within the plan area subject to Division 13 (commencing with Section 21000) of the Public Resources Code 1 that potentially conflict with the preliminary conservation objectives in the planning agreement (Fish and Game Code Sect (b) (8)). As stated in the Planning Agreement, the interim project review process will accomplish the following: help ensure that new renewable energy projects approved or initiated in the Planning Area before completion of the DRECP are consistent with the preliminary conservation objectives and do not compromise successful completion and implementation of the DRECP; facilitate Federal ESA, California Endangered Species Act (CESA), National Environmental Policy Act (NEPA), and California Environmental Quality Act (CEQA) compliance for such interim projects that require such compliance; and ensure that processing of such interim projects is not unduly delayed during preparation of the DRECP. Conservation Objectives Interim projects are required to be consistent with the Planning Agreement preliminary conservation objectives. The preliminary conservation objectives are a requirement of the Planning Agreement (Fish and Game Code Sect (b) (4)) and are intended to serve as a foundation for 1 This section of the Public Resources Code describes the California Environmental Quality Act (CEQA), so this means projects subject to CEQA may qualify as reportable interim projects for an NCCP.

3 Page 3 of 14 conservation planning during Plan development. As stated in the DRECP Planning Agreement, the preliminary conservation objectives are to: Provide for the conservation of Covered Species and associated natural communities and ecosystems that occur within the Planning Area; Preserve the diversity of fish, wildlife, plant and natural communities within the Planning Area; Identify biologically sensitive habitat areas; Minimize and mitigate, as appropriate, the take of Covered Species; Preserve and restore habitat and contribute to the recovery of Covered Species; Reduce the need to list additional species as being threatened or endangered; Set forth species specific goals and objectives; Set forth specific habitat based goals and objectives; Implement an adaptive management and monitoring program to respond to changing ecological conditions; Avoid actions that are likely to jeopardize the continued existence of Covered Species or result in the destruction or adverse modification of designated critical habitat for such species; and Address climate change adaptation through reserve design. The REAT agencies will use these preliminary conservation objectives as initial guidance to review interim projects. However, these objectives are fairly general and may be difficult to interpret at the project level so early in the planning process. We provide clearer direction for the interim project review process in the section at the end of this memo Proposed Notification and Review Process for Interim Projects. Existing Review Processes As mentioned above, the BLM, CDFG, CEC, and USFWS permit projects within the DRECP planning area in compliance with the federal and state Endangered Species Acts. The proposed interim review process must integrate with and, where possible, allow for efficiencies across the environmental compliance processes. Background on these existing agency specific review processes is provided below. Bureau of Land Management The BLM administers 10,225,333 acres of public land within the DRECP Planning Area (42% of the Planning Area), making them the largest land manager in the Planning Area. The BLM is guided by land management decisions prepared under the authority of the Federal Land Policy and

4 Page 4 of 14 Management Act of 1976 (FLPMA), 43 U.S.C. 1701, et seq., and NEPA, 42 U.S.C et seq. The Mineral Leasing Act and Energy Policy Act also govern the BLM actions. Typically, BLM follows a three tiered planning approach that includes the development of Resource Management Plans, Activity Level Plans, and individual project implementation plans. At each planning stage, the BLM consults with the USFWS in accordance with the Federal ESA Section 7, unless the BLM determines that an action has no effect on a federally listed species or its designated critical habitat. Consultation between federal agencies is required by Section 7 of the ESA when a federally listed species may be affected by a federal action. The BLM is required to prepare a biological analysis document, sometimes known as a Biological Assessment, when consulting with USFWS. The USFWS response to the BLM is either a concurrence for federal actions with no adverse effects to listed species or designated critical habitat, or a Biological Opinion when the federal action may adversely affect a federally listed species or designated critical habitat. Renewable energy projects that take place on BLM administered lands are authorized either through a Right of Way (ROW) grant or lease. The BLM has review and approval authority for all renewable energy covered activities regardless of technology or size. Renewable energy projects, including renewable energy power plants and biorefineries, that take place on BLM administered lands must obtain a ROW grant and a Land Use Plan Amendment to the BLM s California Desert Conservation Area (CDCA) Plan (1980) (as Amended). The requested ROW cannot be granted unless such a grant would be consistent with the terms of the CDCA Plan. A ROW grant authorizes use of a specified piece of public land for a specific project for a specific period of time. In general, the ROW grant term is 20 to 30 years. 2 The BLM is authorized to issue ROW grants through the FLPMA for renewable energy projects. For subsurface activities, such as geothermal energy production, a lease is issued rather than a ROW. Both, the granting of a ROW and the issuance of a lease, trigger review under NEPA. If the proposed project has the potential to affect federally listed species or its designated critical habitat, consultation with the USFWS under the Federal ESA Section 7 is also required, as described above. The BLM and the CEC executed a Memorandum of Understanding concerning their intent to conduct joint environmental reviews of solar thermal projects in a single NEPA/CEQA process. It is in the interest of the BLM and the CEC to share in the preparation of a joint environmental analysis of a proposed project to avoid duplication of staff efforts, to share staff expertise and information, to promote intergovernmental coordination and collaboration at the local, state, and federal levels, and to facilitate public review and participation by providing a joint document and a more efficient and expeditionary environmental review process. The BLM and CEC work closely with other federal and state regulatory and wildlife agencies that administer laws, ordinances, regulations and standards applicable to a proposed project. These agencies may include as applicable, the USFWS, U.S. Environmental Protection Agency,, U.S. Army 2 The 20 to 30 year ROW grant term is based the guidance provided in the BLM Solar Energy Development Policy memorandum dated October 13, This grant term is consistent with the expected construction, development, and continued operations needs of a solar energy facility. It also provides for operation periods that are consistent with typical Power Purchase Agreements. Each ROW grant authorization will also include specific provision allowing for renewal, consistent with the regulations at 43 CFR

5 Page 5 of 14 Corps of Engineers, U.S. Bureau of Reclamation, California River Board of California, California Department of Transportation, State Water Resources Control Board/Colorado River Regional Water Quality Control Board, CDFG, the California Air Resources Board and the Mojave Desert Air Quality Management District. The BLM s project review process begins with pre application meetings with project developers who must submit a Standard Form 299 (SF 299) application and a Plan of Development along with the appropriate cost reimbursement. The BLM publishes in the Federal Register a Notice of Intention to prepare a NEPA document (Environmental Impact Statement or Environmental Assessment) for the proposed project. The BLM and CEC then hold joint scoping workshops, and the staff of both agencies work closely to prepare a Staff Assessment /Draft Environmental Impact Statement (SA/DEIS) that is a joint document published by the BLM and the CEC. The SA/DEIS contains staff s independent evaluation of the applicant s applications which are filed with the BLM and CEC. The application filed with the BLM is the BLM ROW, and the application filed with the CEC is the Application for Certification. The SA/DEIS examines engineering, environmental, public health and safety aspects of the project based on the information provided by the applicant and other sources available at the time the SA/DEIS is prepared. The SA/DEIS also includes for the BLM a Draft Land Use Plan Amendment (Draft PA) to the California Desert District Plan (1980) as Amended. A 90 day public review and comment period is provided on the SA/DEIS (initiated by the Notice of Availability [(NOA]) published by the U.S. EPA in the Federal Register). The BLM then prepares a Final Environmental Impact Statement that includes a Proposed Land Use Plan Amendment (Proposed PA). That NOA (published by the EPA in the Federal Register) initiates a 30 day protest period on the Proposed PA to the Director of the BLM. Following resolution of any protests, the BLM may then publish an Approved Plan Amendment and a Record of Decision (ROD) on the Project Application. A ROW can then be issued for the project. For projects on BLM administered lands that do not have CEC jurisdiction, the BLM goes through the same NEPA process described above, without the CEC SA. California Department of Fish and Game The CDFG administers the CESA, and as a trustee agency for fish and wildlife pursuant to CEQA, requires lead agencies to consider whether their actions result in jeopardy to the continued existence of listed species or result in adverse modification of habitat. CESA generally parallels the federal Act and protects wildlife and plants listed as threatened and endangered by the California Fish and Game Commission. CESA prohibits the take of state listed wildlife and plants and requires an incidental take permit for authorization of take. The California Fish and Game Commission defines take as any action or attempt to hunt, pursue, catch, capture, or kill. The requirements for an application for an incidental take permit under CESA are described in Public Resources Code (PRC) Title 14, California Fish and Game Code, Division 3, Chapter 1.5, Section 2081, and in final adopted regulations for implementing Sections 2080 and Sections

6 Page 6 of (b) and (c) of CESA allow the CDFG to issue an incidental take permit for a State listed threatened or endangered species if specific criteria is met. These criteria are: The authorized take is incidental to an otherwise lawful activity; The impacts of the authorized take are minimized and fully mitigated; The measures required to minimize and fully mitigate the impacts of the authorized take: (a) are roughly proportional in extent to the impact of the taking on the species, (b) maintain the applicant s objectives to the greatest extent possible, and (c) are capable of successful implementation; Adequate funding is provided to implement the required minimization and mitigation measures and to monitor compliance with and the effectiveness of the measures; and Issuance of the permit will not jeopardize the continued existence of a State listed species. The CDFG may also issue an incidental take permit through the Natural Community Conservation Planning Act (NCCP Act). Permitting through the NCCP Act is a more rigorous process that requires the applicant to conserve natural communities and species at the landscape or ecosystem level. The CDFG s approval and issuance of an incidental take permit under Section 2081(b) (CESA) or Section 2800 of Chapter 10 of Division 3, PRC Title 14 (NCCP Act) are actions subject to CEQA. CEQA requires the systematic identification of a project s environmental impacts, mitigation (if feasible) of significant impacts and the documentation of findings based on that evaluation prior to project approval. Depending on the level of impact, an environmental impact report (EIR) or mitigated negative declaration (MND) is needed to comply with CEQA. The CDFG also has a category of species listed as fully protected. This classification was intended to identify and provide additional protection to those animals that were rare or faced possible extinction. Lists were created for fish, mammals. amphibians and reptiles, birds and mammals. Fully Protected species may not be taken or possessed at any time and no licenses or permits may be issued for their take except for collecting these species for necessary scientific research and relocation of the bird species for the protection of livestock. Fully protected species are listed in Fish and Game Code Sections 3511, 4700, 5050 and By law, the CDFG cannot issue permits for the take of fully protected species. California Energy Commission The CEC has the exclusive authority to certify thermal electric generating power plants 50 megawatts or larger in size, and related facilities, in lieu of state, regional, and local agencies. The CEC power plant certification process is a CEQA functional equivalent process with the Energy Commission as the CEQA lead agency. The certification process has been approved by the Secretary of Natural Resources as meeting the intention and requirements of CEQA. For projects under its exclusive jurisdiction, the CEC may also authorize the Take of State listed species pursuant to the Warren Alquist Act and in accordance with the Fish and Game Code and any Take Authorization the

7 Page 7 of 14 CEC receives from the USFWS pursuant to the FESA. The CEC consults with the CDFG and USFWS as responsible agencies to ensure compliance with the CESA and FESA. There are five phases to the CEC power plant Application of Certification (AFC) timeline: (a) Data adequacy, (b) Discovery, (c) Analysis, (d) Hearings, and (e) Decision. Prior to filing an AFC, applicants are encouraged to meet with the CEC for one or more pre filing consultations. During pre filing consultations, the CEC reviews the application data needs with the applicants. Pre filing consultations help to ensure that the CEC is aware of the potential projects and the applicants are aware of potential issues they may face. It is during the pre filing meetings that potential CESA and FESA issues would be discussed and AFC data requirements identified. Upon filing the AFC, there is a 45 day period during which data adequacy is determined. During this time, the CEC and responsible agencies determine if the AFC contains sufficient information to conduct independent analysis of the effects of approving or denying the AFC. The CEC will not accept an application for review until the applicant provides all the information requirements in the data adequacy regulations. Upon receipt of the AFC, the CEC project manager prepares an executive summary and project description. The AFC, executive summary, and project description are then circulated to other responsible agencies, including the CDFG and USWFS, to determine the completeness of the AFC, identify issues and data requests, and provide comments. CEC environmental and engineering technical staff are assigned to evaluate the AFC per their area of expertise. Together with comments submitted by the responsible agencies, a final data adequacy recommendation is made by the Executive Director to the five member California Energy Commission. The Commissioners makes the final decision regarding the adequacy of the AFC. If the AFC is deemed adequate, the 12 month review timeline begins. During the AFC review timeline, the CEC staff conducts an independent assessment of the engineering, environmental and public health and safety aspects of the project and all its related facilities like roads, pipelines and transmission lines. The CEC staff is an independent party to the proceeding like the applicant and any intervenors. No parties can meet with the Committee of two Commissioners assigned to oversee the proceeding outside of a noticed public hearing, conference or workshop. Shortly after the AFC is deemed data adequate, the CEC staff publishes an issue identification report and submits data requests to the applicant. In addition, the CEC Committee holds a public informational hearing and site visit where the project applicant leads a tour of the site and familiarizes everyone with the proposed project. The staff explains the CEC AFC process and presents the issue identification report. At various times during the process, a staff workshop will be held by CEC staff and responsible agencies to resolve analysis uncertainties, review assessment results and alternatives, or clarify data responses. During workshops, the applicant, staff, responsible agencies, and the public meet to resolve issues identified during the staff review. Workshops are typically held as CEC staff develops the Staff Assessment (PSA). The number of workshops held depends on the complexity of the project and the number of changes the applicant makes to the project. Based on responses to

8 Page 8 of 14 data requests and input from the public, local, state and federal agencies, Native American tribes and the applicant, a Final Staff Assessment (FSA) is prepared and filed. The FSA becomes the testimony of the CEC staff in the evidentiary hearings to follow. One or more evidentiary hearings are then held by the CEC Committee and a Hearing Officer. After hearing and reviewing the testimony, the Committee issues a Presiding Member s Proposed Decision (PMPD) that will recommend approval or denial of the AFC. The issuance of this proposed decision initiates a 30 day comment period. During the 30 day comment period, a Committee conference is held on the PMPD to resolve any outstanding issues. Finally, a hearing is held to issue a decision on the PMPD and the AFC. This hearing is before the five member California Energy Commission. U.S. Fish and Wildlife Service The USFWS 3 is the agency that administers the Federal ESA for most non marine and nonanadromous species. The Federal ESA prohibits the take of federally listed wildlife Take, as defined by the Federal ESA, means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Harm and harass are further defined in regulation. The Federal ESA includes mechanisms that provide exceptions to the take prohibitions defined above.. These are addressed in Section 7 for federal actions, Section 10 for nonfederal actions, and Section 4(d) for threatened wildlife. Section 7 of the FESA requires all federal agencies, in consultation with the USFWS to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of habitat critical to such species survival. To ensure that its actions avoid and minimize the impact of the incidental taking on the species, and do not result in jeopardy to listed species or in the adverse modification of critical habitat, each federal agency must consult with the USFWS regarding federal agency actions that may affect listed species. Consistent with the implementing regulations for Section 7 consultations (50 Code of Federal Regulations 402), if the USFWS concludes through informal consultation that the action is not likely to adversely affect a listed species, the action may be conducted without further review under the Federal ESA. If adverse effects are unavoidable, formal consultation begins when the federal agency submits a written request for initiation to the USFWS, along with the agency s biological analysis of its proposed action the USFWS then analyzes the effects of the project and issues a biological opinion describing how the agency s action will affect the listed species and its critical habitat. If the biological opinion concludes that the proposed action would take a listed species, it will include an incidental take statement. Incidental take is take that is incidental to, and not intended as part of, an otherwise lawful activity (50 Code of Federal Regulations ). The incidental take statement 3 The National Marine Fisheries Service (NMFS) also administers the FESA; however, for the purposes of the interim review process, the discussion is framed in terms of the USFWS process as NMFS does not have jurisdiction over any of the proposed covered species.

9 Page 9 of 14 specifies an amount of take anticipated to occur as a result of the action and includes reasonable and prudent measures to minimize the impact of the taking on the species. If the biological opinion concludes that the proposed action would jeopardize the continued existence of a listed species or destroy/adversely modify any designated critical habitat, the opinion will suggest reasonable and prudent alternatives, if any, that would avoid that result. In cases where federal land, funding, or authorization is not required for an action by a nonfederal entity, the take of listed wildlife species can be permitted by the USFWS through the Section 10 process, which requires the preparation of a conservation plan (more commonly known as a HCP). Private landowners, corporations, state and local agencies, and other nonfederal entities must obtain a Section 10(a)(1)(B) incidental take permit for take of federally listed wildlife species that is incidental to, but not the purpose of, otherwise lawful activities. Though Section 10 incidental take permits are only required for wildlife species, the Section 7(a)(2) prohibition against jeopardy applies to plants, and issuance of a Section 10(a)(1)(B) incidental take permit cannot result in jeopardy to a listed plant species in the internal biological opinion required for the incidental take permit. To receive an incidental take permit, Section 10(a)(2)(B) of the Federal ESA requires that the following criteria be met. The taking will be incidental to otherwise lawful activities. The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of such taking. The applicant will ensure adequate funding for the HCP and procedures to deal with unforeseen circumstances. The taking will not appreciably reduce the likelihood of survival and recovery of the species in the wild. The applicant will ensure that other measures that the USFWS may require as being necessary or appropriate will be provided. The USFWS has received such other assurances as may be required that the HCP will be implemented. Proposed Notification and Review Process for Interim Projects The Planning Agreement (May 2010), California Senate Bill 34 CDFG Interim Mitigation Strategy (September 2010), and Best Management Practices and Guidance Manual (September 2010) propose approaches for streamlining the project review process for projects to be covered under the

10 Page 10 of 14 DRECP. The following proposed notification process for interim projects is based on these guidelines and approaches. Reportable Interim Projects The interim project review process applies to any activity that meets all of the following five requirements: 1. is within the DRECP Planning Area, 2. is being considered for coverage by the DRECP as a covered activity, 3. requires state, and/or federal approval, 4. has the potential to affect species proposed for coverage by the DRECP, 5. will begin construction prior to issuance of permits by the CDFG and USFWS for the DRECP, and 6. has not received all the required local, federal and state permits by December 31, When considering or selecting a site to develop for renewable energy, project applicants should assume the project has the potential to affect DRECP proposed covered species or cause significant environmental impacts if any of the following criteria are met: The project occurs on natural land cover types or open water. This excludes cultivated agriculture, urban areas, landfills, or highly disturbed ground. The project is in or adjacent to a riparian zone, desert dry wash woodland, stream, wetland, dune, or sand transport area. The project will use any amount of surface or groundwater for power plant cooling. The project would occur in an important landscape or wildlife linkage identified by the DRECP. Interim Project Review Process The application process for interim projects is intended to support efforts to comply with the NEPA, CEQA and other federal, state, and local environmental, energy development, and wildlife laws. Permitting and decision making timeframes may be made more efficient through early coordination with the appropriate permitting agencies and stakeholders. To achieve the efficiency objective as discussed above, the interim project review process must begin concurrently and in coordination with all required jurisdictions and the REAT agencies, consistent with applicable local, state, and federal environmental review or permitting decision processes. Typically for large projects the interim project review process should begin at least 12 months ahead of the anticipated application filing date. The interim project applicant should meet with the applicable REAT agencies together and the appropriate lead agencies. The affected county in which the project is proposed to be located will also be included in these meetings with the REAT.

11 Page 11 of 14 The pre application meeting would serve as the basis to identify the necessary application materials. Existing application processes of the state and federal agencies presently require the following information, which is critical to an efficient interim project review process: Map. The project location map of the project location, either using digital data, and including any streams or water bodies, landforms, roads, and existing and proposed structures; Geographic Information System (GIS) Data. Provide GIS shape files and metadata of the proposed project site and alternatives as well as all project related covered activities like roads, pipelines and transmission lines. Project description. The location, construction activities, and timing of the construction project. Describe the proposed project operation and maintenance that may affect covered species or natural communities. Land cover type list and map. A list of land cover types present on the project site which using the most current land cover data available. Land cover types should be consistent with the natural communities and land cover types identified in the DRECP. Include a map of the project boundary overlying land cover types. Covered species list. A list of the DRECP covered species with the potential to be present and affected by the proposed project. This species list will inform the required biological surveys. Biological surveys. Results of required biological surveys following current protocols as adopted by the CDFG and USFWS. Mitigation measures. Proposed mitigation measures to avoid, minimize, and offset expected effects to DRECP covered species. These measures should be consistent with those developed for the DRECP, to the extent available at the time. Conservation Strategy. Discuss the project s consistency with the DRECP conservation strategy. Applicants should consider individual and cumulative impacts on the DRECP covered species, natural communities, and landscape linkages and connectivity. The REAT will be responsible for coordinating review of interim project applications. The REAT will interface with the developers and the affect county to develop the application package. Completed application packages for interim projects will be submitted to the REAT according to the timelines identified above. The REAT will evaluate the proposed interim project for consistency with the DRECP and provide guidance to the applicant on how to alter the project to make it consistent with the DRECP, if needed. 4 During their review process, the REAT will: evaluate project location in relationship to the BLM Solar Energy Zones (to be analyzed in the BLM s programmatic DEIS and FEIS, and finalized in a Record of Decision [ROD]) and preliminary REAT Study and Conservation Opportunity Areas (Figure 1) and its updated 4 Refer to the DRECP web site for the most recent maps and conservation strategy information

12 Page 12 of 14 versions, as applicable. 4 Proposed interim projects located in the BLM Solar Energy Zones and REAT Study Areas would be preferred project locations; determine whether the interim project is consistent with or conflicts with the Conservation Objectives; evaluate the interim project in terms of the requirements set forth in the DRECP as it is drafted at the time of project application submittal for interim process review ; ensure the proposed interim project fulfills other state and federal regulatory standards (see Existing Review Processes and Relationship to Other Review Processes for examples); and recommend mitigation measures or project alternatives to ensure consistency with the DRECP as it is drafted at the time of the project application submittal (see list below of interim DRECP deliverables). This includes ensuring that the proposed project will help achieve the preliminary conservation objectives of the DRECP, and will not preclude important conservation planning options or connectivity between areas of high habitat values. The REAT Agencies will coordinate through their field and district offices to evaluate each interim project on a case by case basis. Initially, projects will be evaluated against the preliminary conservation objectives of the DRECP. This evaluation process will change over time as the DRECP is developed and the conservation objectives of the Plan evolve. The standards against which the interim proposed projects will be evaluated will be updated as development of the DRECP progresses (Figure 2). The following expected deliverables will support this review when they become available, along with all other best available biological information: Independent Science Advisors Report ( November 2010) Baseline Biology Report (March 2011) Framework Conservation Strategy (March 2011) Biological Goals and Objectives for the Covered Species (June 2011) Biological Goals for Natural Communities (June 2011) Habitat Suitability Models (June 2011) Conservation Strategy (June 2011) Draft Alternative Conservation Strategies (August 2011) Administrative Draft Conservation Strategy (December 2011) Administrative Draft DRECP (February 2012) Public Draft DRECP (June 2012) 5 5 The Independent Science Advisors Report provides guidance to the DRECP process as a whole, and is not intended to be used for project specific reviews. However, some components of that report provide an indication of the future DRECP conservation strategy.

13 Page 13 of 14 The DRECP Planning Agreement does not dictate or provide guidance on what the REAT Agencies should do if a project is found to be incompatible with the preliminary conservation objectives or the emerging conservation strategy. However, the NCCP Act states that CDFG will recommend mitigation measures or project alternatives that would help achieve the preliminary conservation objectives. (Fish and Game Code Sect (b)(8)). Applicants should work with the REAT Agencies to identify and eliminate any conflicts between their proposed project and the DRECP. Relationship to Other Review Processes The required environmental and permit review processes are dictated by the proposed facility or technology type, project location, and the environment and human health and safety effect significance. The following is a subset of the review processes that could also be required for an interim project. Local Agencies. Proposed interim projects may need to undergo local land use review. Local agency requirements are incorporated into the applications to lead agencies and may include local zoning, general plan policies, land use, water, hydrology, safety, aesthetics, noise, traffic, and height restrictions. The proposed interim projects must be consistent with the Williamson Act requirements, zoning ordinances, and general plan land uses. Department of Defense. Proposed interim projects must not create an unmitigable conflict with military operations. Interim projects will go through a Department of Defense (DoD) mission compatibility review via the DoD Southwest Renewable Energy Working Group. Department of Defense and nearby military installation requirements must be addressed and incorporated into a proposed interim project s design to ensure the proposed project will not conflict with military operations. If conflicts with military operations remain, the Secretary of Defense would work with the Secretary of the Interior to resolve the conflict. Failure to resolve conflicts with military operations may have implications for project success. Electric Transmission System Reliability. Proposed interim project must demonstrate that interconnection to the existing electric transmission system will not negatively impact electric transmission system reliability. A transmission system interconnection study is reviewed and completed by the California ISO or other control area operator. Measures are identified and agreed upon to eliminate unacceptable degradation to the transmission system reliability beyond the first point of interconnection. Air Quality. Interim proposed project determination of compliance or authority to construct application must be submitted with applications to lead agencies for projects requiring local air quality management district or air pollution control district permits. Cultural Resources. Cultural resource surveys required by lead agencies, and lead agency approved archaeological reports, tribal consultations, assessments, and project impact mitigation measures are completed following the proper protocols and standards.

14 Page 14 of 14 Projects Not Subject to the Interim Review Process Some renewable energy projects located in the DRECP study area are not subject to the interim review process described in this memorandum. They include the following: renewable energy projects that have received all their state and federal permits by December 31, 2010, and projects explicitly exempted from being a reportable interim project in the Planning Agreement. These projects are identified as Existing Projects in the Planning Agreement. Next Steps After review of this memo by the REAT agencies and the DRECP Stakeholder Committee, we will revise the content and provide it to the REAT agencies to finalize and include in the Draft Conservation Strategy Framework. In addition, the following items will be added to the next draft of this document: add list of contacts and map of regional and field office territories for the BLM, CDFG, CEC, Department of Defense (regional DOD representatives), and USFWS, and change name from BLM Solar Study Areas to BLM Solar Energy Zones.

15 March ICF DRECP ( ) Figure 1 BLM Solar Study Areas and preliminary REAT Study and Conservation Opportunity Areas

16 Proposed Process, Schedule, and Key Decision Points for the Desert Renewable Energy Conservation Plan HCP/NCCP and EIS/EIR September 2010 SCHEDULE and KEY DECISION POINTS (scale varies) September 2010 March 2011 June 2011 August 2011 October 2011 December 2011 February 2012 June 2012 December 2012 January 2013 HCP/NCCP PROCESS Covered Species List Species Profiles Ecological Principles & Processes Natural Community & Disturbed Area Mapping Land Cover Types Covered Activities List Covered Activities Description Covered Species Description Land Use & Ownership Description Land Use & Ownership NCCP Interim Project Review Process Regulatory Framework Description Cultural Resources, Recreation, and Other Issues Prelim. Description Other Issue Areas Baseline Biology Report FRAMEWORK CONSERVATION STRATEGY Outline (Nov 2010) Based on No Regrets Concepts Draft (Mar 2011) Covered Activities and Renewable Energy Needs Biological Goals for Species Habitat Suitability Models Analysis of Gaps in Protection Impact Assessment Reserve Design and Assembly Process Biological Goals for Natural Communities Conservation Strategy Landscape-Level Conservation Measures Habitat-Level Conservation Measures Species-Level Conservation Measures Avoidance and Minimization Measures Costing and Funding Analysis: Land Valuation Restoration Operations and Maintenance Funding Options Draft Alternative Conservation and Implementation Strategies Strategy 1: No Take Strategy 2: Greater than Maximum Practicable Conservation Strategy 3: Maximum Practicable Conservation Strategy 4: Less than Maximum Practicable Conservation Select Preferred Strategy HCP/NCCP Conservation and Implementation Strategy HCP/NCCP Proposed Conservation Strategy and Conditions on Covered Activities Monitoring and Adaptive Management Plan Implementation and Assurances Updated Cost and Funding Analysis Alternatives to Take Admin. Draft HCP/NCCP Admin. Draft IA Official Public Draft HCP/NCCP Permit Application to FWS Draft IA (90 days) FWS/DFG Internal Processing (90 days) Final HCP/NCCP NEPA Record of Decision (FWS) ESA, NCCP, CEQA Findings (DFG, FWS, local agencies) Biological Opinion (FWS) Final IA Signed IA and Permits CEQA and NEPA PROCESS Environmental Issue Identification Release NOP and Publish NOI 30-day scoping process Environmental Analysis Draft EIR/EIS (90 days) Final EIR/EIS NOD and ROD NHPA SECTION 106 PROCESS Define Area of Potential Effect Identify Cultural Resources Consultation with SHPO and Tribes Assessment of Adverse Effects Consultation with Advisory Council Resolution of Adverse Effects Programmatic Memorandum of Agreement ICF DRECP ( ) KEY DECISION POINTS 1 Which species would be covered? Will the plan analyze other planning species not covered by the permits? 2 Which activities would be covered by the permits? 73 What ecological principles should guide conservation? 34 Where would activities covered by the permits occur? 45 How would the interim project process work (NCCP Planning Agreement)? 56 What is the regulatory framework of the DRECP? Who are the applicants? 67 How would covered activities impact covered species? 8 What is the appropriate reserve design and assembly process for the plan? How would linkages be incorporated into the conservation strategy? 9 How would conservation be achieved on public and private lands? 10 How much site-specific survey work would be required of those seeking take authorizations through the plan? (e.g., species surveys) 11 How much would the plan cost to implement? 12 How would implementation be funded? 13 How would the plan be implemented? By whom? 14 How long would the permits last? 15 What is the adaptive management plan? What implementation assurances would be provided to involved parties? What are the protocols for amending the permits? ACRONYMS CDCA California Desert Conservation Area CEQA California Environmental Quality Act DFG California Department of Fish and Game DRECP Desert Renewable Energy Conservation Plan EIR Environmental Impact Report EIS Environmental Impact Statement FWS U.S. Fish and Wildlife Service HCP Habitat Conservation Plan IA Implementing Agreement NCCP NEPA NHPA NOD NOI NOP ROD SHPO Natural Community Conservation Plan National Environmental Policy Act National Historic Preservation Act Notice of Determination Notice of Intent Notice of Preparation Record of Decision State Historic Preservation Office LEGEND Start Consider Independent Science Advisors Recommendations Advice from Scientific Experts Formal Public Review Period Figure 2 Schedule of Deliverables to be Integrated into Interim Review Process