Desert Renewable Energy Conservation Plan

Transcription

1 I INTRODUCTION The (DRECP or Plan) comprehensively addresses how participating entities with jurisdiction over renewable energy and transmission development projects in the deserts of California will conserve natural communities and species pursuant to the California Natural Community Conservation Planning Act (NCCP Act) and the Federal Endangered Species Act (ESA). The primary goal of the DRECP is to contribute to the conservation and recovery of listed and unlisted covered species and natural communities and to streamline future permitting efforts for the development of renewable energy to help meet California s renewables portfolio standard (RPS). The DRECP is intended to serve as a Natural Community Conservation Plan (NCCP) under Section 2800 et seq. of the California Fish and Game Code and a multiple species Habitat Conservation Plan (HCP) pursuant to Section 10(a)(1)(B). Upon approval and adoption of the DRECP, the participating entities will obtain authorization for the incidental take of certain endangered, threatened, and special-status plant and animal species from the U.S. Fish and Wildlife Service (USFWS) and the California Department of Fish and Game (CDFG). Once the permits are issued, the participating entities may then extend their permits to renewable energy and transmission projects under their jurisdiction. This introduction describes the background of the DRECP, the program goals, the scope of the DRECP, and the regulatory context. I.A Background and Overview The following provides the background of the DRECP, an overview of the planning process, and a summary of the integration of science into the process. I.A.1 Background of the DRECP At both the federal and state levels, recent energy policy includes increased targets for electricity generated from renewable energy sources. California s deserts have renewable energy potential of national importance, and renewable energy and transmission development is proceeding throughout this region. California s deserts also support irreplaceable biological and natural resources. The DRECP will establish the structure to balance renewable energy development and biological resource conservation across the California desert region. The following provides a summary of the context within which the DRECP was developed. I-1 May 2011

2 California Renewables Portfolio Standard (RPS) and Renewable Energy Transmission Initiative (RETI) California has long-established energy policies to promote renewable electricity generation. Established in 2002 under Senate Bill (SB) 1078 and accelerated in 2006 under SB 107, California's RPS is one of the most ambitious renewable energy standards in the country. The RPS program requires investor-owned utilities, electric service providers, and community choice aggregators to increase procurement from eligible renewable energy resources until they reach 20% by In November 2008, California s Governor issued Executive Order (EO) S requiring an increase in the percentage of electricity generated by renewable resources to 33% by The order also directed state agencies to streamline regulatory processes and minimize environmental impacts associated with this development. The development of the DRECP was mandated to address permitting for incidental take of endangered species in the Mojave and Colorado deserts of California where much of the energy development will occur. EO S recognized the Renewable Energy Action Team (REAT), which was created through Memoranda of Understanding (MOUs) between the CDFG, California Energy Commission (CEC), Bureau of Land Management (BLM), and USFWS, along with an MOU signed by the Secretary of the U.S. Department of the Interior and the Governor of California in October The REAT is composed of representatives from the CDFG, CEC, BLM, and USFWS, and has a primary mission to streamline and accelerate the permitting processes for renewable energy projects, while contributing to the conservation of endangered species and natural communities at the ecosystem scale. EO S directs the REAT to accomplish both of these goals in the Mojave and Colorado Desert regions of California through the DRECP (REAT 2010). EO S was signed on September 15, 2009, directing the California Air Resources Board (CARB) to adopt regulations requiring 33% of electricity sold in the state to come from renewable energy by 2020, which is a complementary regulatory strategy to help implement the previously established 33% state goal in EO S CARB completed environmental review of the proposed regulation and authorized its adoption in September The California Public Utilities Commission (CPUC) has studied a 33% RPS as part of its 2008 and 2010 Long-Term Procurement Plan proceedings. CPUC published an implementation analysis for the 33% RPS in June 2009 (CPUC 2009). The Renewable Energy Transmission Initiative (RETI) is a statewide initiative designed to identify the transmission projects needed to facilitate California s adopted energy policies, which require considerable increases in the generation of electricity from renewable I-2 May 2011

3 resources; support future energy policy; and facilitate transmission corridor designation and transmission and generation siting and permitting. RETI assessed competitive renewable energy zones (CREZs) in California capable of providing significant production of renewable electricity by RETI also identified those zones that have the best potential for development of renewable energy projects in the most cost effective and environmentally benign manner. The RETI effort was supervised by a coordinating committee composed of the CPUC, CEC, California Independent System Operator (ISO), and several publicly owned utilities (CEC 2011). The California Transmission Planning Group (CTPG) was also formed to provide a forum for transmission operators to develop a statewide transmission plan, which uses the RETI conceptual plan as the starting point (CTPG 2011). Senate Bill 34 and American Recovery and Reinvestment Act (ARRA) State SB 34 was enacted on March 22, 2010, to facilitate project mitigation actions for certain proposed renewable energy projects in the California desert that are pursuing one or more federal American Recovery and Reinvestment Act of 2009 (ARRA) funding incentive programs. SB 34 provides eligible project applicants the option to pay in-lieu fees that CDFG would use to acquire habitat lands and/or restore or enhance such lands as mitigation for project impacts to state-listed or candidate species. The bill authorizes CDFG, in consultation with the REAT, to design and implement mitigation actions, including the purchase of land and conservation easements to protect, restore, and enhance habitat for state-listed or candidate species. Only solar thermal and solar photovoltaic (PV) projects within the DRECP boundary qualify for ARRA funding under SB 34 (CEC 2010). In accordance with SB 34, CDFG adopted an Interim Mitigation Strategy (IMS), which develops and articulates the conceptual approach to conservation investments that guide the implementation of project mitigation required for eligible renewable energy projects (CDFG 2010). Department of the Interior Renewable Energy Goals Secretarial Order No establishes the development of renewable energy as a priority for the Department of the Interior (DOI) by amending and clarifying departmental roles and responsibilities, as well as establishing a Departmental Task Force on Energy and Climate Change. The order outlines how the Departmental Task Force on Energy and Climate Change will develop a strategy designed to increase the development and transmission of renewable energy from appropriate areas on public lands and the Outer Continental Shelf. It also specifies that the task force will develop best management practices (BMPs) for renewable energy and transmission projects to ensure environmental I-3 May 2011

4 responsibility, establish clear policy direction for authorizing the development of solar energy, and recommend other actions to fulfill the goals of the order (DOI 2009a). Ultimately, the order establishes that the DOI will collaborate with other federal agencies, departments, states, local communities, and private landowners to facilitate the timely and responsible development of renewable energy and associated transmission while protecting and enhancing the nation's water, wildlife, and other natural resources (DOI 2009a). Therefore, the DRECP provides a mechanism to carry out this order. The State of California and the federal DOI signed an MOU in October 2009 that directs California agencies and DOI agencies to take the necessary actions to further the implementation of the Governor s EO S and Secretarial Order No in a cooperative, collaborative, and timely manner. The MOU provides several specific objectives to attain this goal that include development of the DRECP (DOI 2009b). In furtherance of this process, a Draft DRECP Planning Agreement was prepared according to the requirements of the NCCP Act. The Planning Agreement identifies the scope and goals of the DRECP, along with the process for preparing the DRECP and the roles and responsibilities of the Plan participants. The Plan participants include the CDFG, CEC, BLM, and USFWS. The Planning Agreement was executed by the Plan participants in May I.A.2 DRECP Process Overview The DRECP management team consists of representatives from the REAT agencies (i.e., CEC, BLM, CDFG, and USFWS), the Governor s Office, DOI, and California Natural Resources Agency. This management team provides direction to the DRECP Director and Assistant Director. Independent Science Advisors (ISA) provided input during the planning process, which is described further in Section I.A.3. The consultant team receives direction from the DRECP Director and Assistant Director in the preparation of analyses and DRECP documentation. The DRECP Stakeholder Committee consists of representatives from the renewable energy industry, environmental groups, electric utilities, REAT agencies, other federal land management entities, counties, a Native American renewable energy organization, outdoor recreation groups, and other interest groups. The Stakeholder Committee provides input to the DRECP management team through the planning process, provides feedback on interim products, and provides a forum for public participation. Working groups provide a forum for focused discussion of key planning issues. Four working groups have been established to date: the Covered Activities Working Group, Covered Species Working Group, Cultural Resources Working Group, and Resource Mapping Working Group. I-4 May 2011

5 I.A.3 Integration of Independent Scientific Input and Review The early integration of current science methods and data is critical to developing a sound and effective NCCP/HCP. In 2010, an ISA group was formed, consisting of scientists and experts specializing in the natural communities, wildlife and plant species, and ecological processes of the California desert region. In October 2010, the ISA published recommendations for the DRECP that provided scientific guidance to the DRECP management team on the development of the DRECP. ISA recommendations covered plan scope, principles for addressing data gaps and uncertainties, conservation and reserve design principles, species conservation principles, and principles of adaptive management. The recommendations of the ISA were considered during the development of the DRECP, particularly in the development of the Covered Species list and profiles, evaluation of ecological processes, the development of natural community and land cover mapping, the baseline biology report, and the framework conservation strategy. In addition to the recommendations from the ISA, additional advice from scientific experts will continue to be sought as needed at several points during the planning process, as appropriate, including during preparation of the following: Covered Species lists, Covered Activities descriptions, Baseline Biology Report, preliminary biological goals for species, habitat suitability models, and reserve design and assembly process. I.B Program Goals This section describes the overall DRECP program goals, which include the following planning goals as stated in the DRECP Planning Agreement (REAT 2010, Section 2.3): Provide for the long-term conservation and management of Covered Species within the Planning Area Preserve, restore, and enhance natural communities and ecosystems that support Covered Species within the Planning Area Build on the Competitive Renewable Energy Zones identified by RETI Further identify the most appropriate locations within the Planning Area for the development of utility-scale renewable energy projects, taking into account potential impacts to threatened and endangered species and sensitive natural communities Provide a means to implement Covered Activities in a manner that complies with the NCCP Act, FESA, NEPA, CEQA, and other relevant laws Provide a basis for the issuance of Take Authorizations allowing the lawful Take of Covered Species incidental to Covered Activities I-5 May 2011

6 I.C Provide for issuance of Take permits for other species that are not currently listed but which may be listed in the future Provide a comprehensive means to coordinate and standardize mitigation and compensation requirements for Covered Activities within the Planning Area Provide a framework for a more efficient process by which proposed renewable energy projects within the Planning Area may obtain regulatory authorizations and which results in greater conservation values than a project-by-project, species-by-species review would have Provide durable and reliable regulatory assurances, as appropriate, under the NCCP Act and the FESA for Covered Activities that occur within the Planning Area Identify and incorporate climate change adaptation research, management objectives, and/or policies into the final plan document. Scope of the DRECP This section provides an overview of the scope of the DRECP in terms of geography, permit term, natural communities, Covered Species, and Covered Activities. Detailed discussion of these topics is provided in subsequent sections. I.C.1 Geographic Scope (DRECP Area or Plan Area) The DRECP generally covers the Mojave and Sonoran Desert regions of California and adjacent areas where renewable energy development may occur. The DRECP Area includes the desert regions and adjacent lands in seven California counties: Imperial, Inyo, Kern, Los Angeles, Riverside, San Bernardino, and San Diego. The DRECP Area (shown in Figure I-1) covers approximately 22,587,000 acres. I-6 May 2011

7 Utah Nevada Arizona Z:\Projects\CEC\j6668_DRECP\MAPDOC\MAPS\Freamework_Figs\Figure_I_1_DRECP_Regional_Ma_ t.mxd 4/ April 25, Miles P a c i f i c O c e a n Sources: Sources: CEC (2010), USGS (2010), ESRI (2010) DESERT RENEWABLE ENERGY CONSERVATION PLAN Mexico FIGURE I-1 Regional Map DRAFT

8 INTENTIONALLY LEFT BLANK I-8 May 2011

9 The DRECP Area was designed to encompass most of the ecoregional boundaries of the Mojave and Colorado Deserts in California. In Inyo County, the northern boundary of the Plan Area follows the lower elevations of the Owens Valley, Amargosa Valley, and Death Valley. The eastern Plan Area boundary follows the state line from the Funeral Mountains in Inyo County to the Mexican border. The southern Plan Area boundary follows the Mexican border to southwestern Imperial County. The southwestern Plan Area boundary follows the lower elevations of western Imperial and eastern San Diego Counties to include the Colorado Desert portions of these counties. In Riverside County, the western Plan Area boundary follows the eastern edge of the Coachella Valley Multiple Species Habitat Conservation Plan. This approved plan was excluded from the DRECP Area because it already covers renewable energy projects and the DRECP would be redundant here. In San Bernardino and Los Angeles Counties, the Plan Area boundary follows the northern edge of lands managed by the U.S. Forest Service (USFS; San Bernardino, Angeles, and Los Padres National Forests). USFS lands were excluded because USFS is not a participating agency in the DRECP. In addition, National Forest lands approximate the ecoregional boundary between the Mojave and South Coast ecoregion where natural communities and species are very different from the Plan Area. In areas where the USFS ownership boundary was discontinuous and where this boundary abutted the BLM California Desert Conservation Area (CDCA) boundary, the CDCA boundary was used. In the Tehachapi Mountains and southern Sierra Nevada Range of eastern Kern County, the boundary excludes land under Tejon Ranch ownership in the Tehachapi area because renewable energy development is explicitly prohibited on these lands, in accordance with the Tejon Ranch Conservation and Land Use Agreement. This is a private agreement between Tejon Ranch Corporation and identified resource organizations 1. In addition, small areas of land managed by the USFS in Kern and Inyo Counties were excluded from the Plan Area because of the reasons stated for Los Angeles County. I.C.2 Permit Term The permit term for the DRECP has not been determined. I.C.3 Natural Communities The DRECP provides for the conservation of natural communities found in the Plan Area in order to meet the regulatory standards of the NCCP Act and to conserve the species covered 1 Including the National Audubon Society, Sierra Club, Natural Resources Defense Council, Endangered Habitats League, Planning and Conservation League, and Tejon Ranch Conservancy. I-9 May 2011

10 by the Plan. The natural communities of planning interest were described in Exhibit B of the Planning Agreement (REAT 2010). The natural communities in the DRECP, based on the initial land cover map, are described in Chapter II, and these communities include forest, woodland, riparian, scrub and chaparral, grassland and other herbaceous communities, wetland, dune, and barren and unvegetated communities. I.C.4 Covered Species Covered Species are those species addressed in the DRECP for which conservation actions will be implemented and for which the participating entities will seek authorization for take under the NCCP Act and Section 10 of the ESA. Identification of the appropriate Covered Species list is an iterative process, and the list will updated as the need for coverage and the opportunities for conservation actions are evaluated in greater detail during the DRECP development process. The DRECP Planning Agreement included an initial list of Species of Planning Interest, which was developed by the REAT agencies during the early planning stages of the DRECP. In October 2010, the ISA provided recommendations for revisions to the Planning Agreement list, including corrections, additions, and deletions. In late 2010, the Covered Species Working Group developed a species filtering tool, whereby all potentially occurring special-status plant and wildlife species (greater than 600 species) would be evaluated according to a series of criteria to determine if they should be carried forward for consideration as Covered Species. The criteria and filtering process will be described when it is completed. Special-status species are defined as plants and animals that are legally protected under ESA, the California ESA, or other regulations, and species that are considered sufficiently rare by the scientific community to qualify for such listing. Special-status plants are species with one or more of the following characteristics: Listed or proposed for listing as threatened or endangered under ESA (50 Code of Federal Regulations [CFR] [listed plants] and various notices in the Federal Register [FR, proposed species]). Candidates for possible future listing as threatened or endangered under the ESA (70 FR , May 11, 2005). Listed or candidates for listing by the State of California as threatened or endangered under the California ESA (14 California Code of Regulations [CCR] 670.5). Listed as rare under the California Native Plant Protection Act (California Fish and Game Code Section 1900 et seq.). I-10 May 2011

11 Determined to meet the definitions of rare or endangered under CEQA (CEQA Guidelines Section 15380). Considered by the California Native Plant Society (CNPS) to be rare, threatened, or endangered in California (CRPR 1B and 2 in CNPS [2011]) or vascular plants, bryophytes, and lichens listed as having special status by CDFG (CDFG 2011a). Listed by CNPS as plants about which more information is needed to determine their status and plants of limited distribution (CRPR 3 and 4 in CNPS [2011]) that may be included on the basis of local significance or recent biological information. Special-status animals are species with one or more of the following characteristics: Listed or proposed for listing as threatened or endangered under the ESA (50 CFR [listed animals] and various notices in the FR [proposed species]). Candidates for possible future listing as threatened or endangered under the ESA (70 FR , May 11, 2005). Determined to meet the definitions of rare or endangered under CEQA (CEQA Guidelines Section 15380). Listed or candidates for listing by the State of California as threatened or endangered under the California ESA (14 CCR 670.5). Wildlife species of special concern to CDFG (CDFG 2011b). Fully protected species under the California Fish and Game Code Section 3511 (birds), Section 4700 (mammals), Section 5515 (fish), and Section 5050 (reptiles and amphibians). Species with no formal special status but thought by experts to be rare or in serious decline and to warrant special status based on recent information. Table I-1 provides an initial Covered Species list for species that have the highest likelihood to need permitting due to their current federal ESA and/or California ESA listing status, and their known distribution relative to the areas with highest likelihood for renewable energy project development. This list was developed through a review of listing status, distribution in the plan area, habitat preference, and potential to be impacted by Covered Activities. Species on this list include primarily federal- or state-listed, upland, widely distributed species. Exceptions include golden eagle (Aquila chrysaetos), burrowing owl (Athene cunicularia), and the plant species. Narrowly distributed species, riparian/wetland/fish species, and bats were not included on the list at this time. This list I-11 May 2011

12 will expand and evolve as the species found in the Plan Area are evaluated for coverage and project development areas are more precisely defined. Table I-1 Initial List of Species Proposed for Coverage Taxa Common Name Scientific Name Amphibian/Rep tile arroyo toad Federal Status 1 State Status 2 Anaxyrus (Bufo) californicus FE CSC Amphibian/Rep tile desert tortoise Gopherus agassizii FT ST Amphibian/Rep tile flat-tailed horned lizard Phrynosoma mcallii BLM/FS CSC Bird golden eagle Aquila chrysaetos BLM FP Bird burrowing owl Athene cunicularia BLM CSC Bird Swainson's hawk Buteo swainsoni FS/BLM ST Bird southwestern willow flycatcher Empidonax traillii extimus FE SE Bird California condor Gymnogyps californianus FE SE/FP Bird bald eagle Haliaeetus leucocephalus FD/BLM SE/FP Mammal Mammal peninsular bighorn sheep Mohave ground squirrel Ovis canadensis nelsoni DPS FE/BLM ST/FP Spermophilus [Xerospermophilus] mohavensis BLM ST None (CRPR 1B.2) Plant desert cymopterus Cymopterus deserticola BLM Plant Barstow woolly sunflower Eriophyllum mohavense BLM Plant Mojave monkeyflower Mimulus mohavensis BLM None (CRPR 1B.2) None (CRPR 1B.2) Notes: 1 Federal Status FE: Federally Endangered; FT: Federally Threatened; FD: Federally Delisted; FS: Forest Service Sensitive; BLM: Bureau Land Management Sensitive. 2 State Status SE: California Endangered; ST: California Threatened; CSC: California Species of Concern; FP: Fully Protected. California Rare Plant Rank (CRPR, formerly known as the CNPS List) - CRPR 1B: Considered rare, threatened, or endangered in California and elsewhere; CRPR 2: Considered rare, threatened, or endangered in California, but more common elsewhere; CRPR 3: Plants which need more information; CRPR 4: Limited distribution a watch list. In addition to Covered Species, the plan will incorporate Planning Species, which are species that are good indicators of environmental conditions or processes that can inform the planning process and guide plan implementation. Planning species may also represent I-12 May 2011

13 a suite of other native species limited or dependent upon the same environmental conditions or processes. Planning Species will also be identified through the species filtering process described previously. Existing setting, including a discussion of natural communities and wildlife and plant species, is described in DRECP Chapter II. I.C.5 Covered Activities The purpose of the DRECP is contribute to the conservation of Covered Species while streamlining endangered species permitting for renewable energy development and transmission projects. To ensure that all relevant renewable energy projects are included and addressed, the Covered Activities are defined broadly as the exploration, construction, operation, maintenance, and decommissioning of public and private utility-scale renewable energy generation and transmission in the Plan Area. The activity types covered by the DRECP include: Transmission and telecommunication facilities that support renewable energy development Solar (PV and thermal) projects Wind projects Geothermal projects RPS biomass projects DRECP conservation actions. Implementation actions generally include: Pre-project activities Site preparation and construction Related infrastructure requirements Operations and maintenance Monitoring Decommissioning. Covered Activities are described in DRECP Chapter V. I-13 May 2011

14 I.D Regulatory Context DRECP will be a joint NCCP/HCP with an accompanying joint Environmental Impact Statement/Environmental Impact Report (EIS/EIR). The following is a description of the regulations and plans pertinent to the joint documents. I.D.1 I.D.1.1 Federal and State Endangered Species Laws Federal Endangered Species Act The federal ESA of 1973 (16 U.S.C et seq.), as amended, is administered by the USFWS for most plant and animal species, and by the National Oceanic and Atmospheric Administration National Marine Fisheries Service for certain marine species. This legislation is intended to provide a means to conserve the ecosystems upon which endangered and threatened species depend and provide programs for the conservation of those species, thus preventing extinction of plants and wildlife. The federal ESA defines an endangered species as any species that is in danger of extinction throughout all or a significant portion of its range. A threatened species is defined as any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. Under the federal ESA, it is unlawful to take any listed species, and take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. The federal ESA allows for the issuance of incidental take permits for listed species under Section 7, which is generally available for projects that also require other federal agency permits or other approvals, and under Section 10, which provides for the approval of HCPs on private property without any other federal agency involvement. Upon development of an HCP, the USFWS can issue incidental take permits (ITPs) for listed species where the HCP specifies, at a minimum, the following: The level of impact that will result from the taking Steps that will minimize and mitigate the impacts Funding necessary to implement the HCP Alternative actions to the taking considered by the applicant and the reasons why such alternatives were not chosen Such other measures that the Secretary of the Interior may require as being necessary or appropriate for the HCP. I-14 May 2011

15 The federal ESA (16 U.S.C et seq.) is implemented by the USFWS through a program that identifies and provides for protection of various species of fish, wildlife, and plants deemed to be in danger of or threatened with extinction. As part of this regulatory scheme, The federal ESA provides for designation of critical habitat, defined in the federal ESA Section 3(5)(A) as specific areas within the geographical range occupied by a species where physical or biological features essential to the conservation of the species are found and which may require special management considerations or protection. Critical habitat may also include areas outside the current geographical area occupied by the species that are nonetheless essential for the conservation of the species. I.D.1.2 California Endangered Species Act The CDFG administers the California ESA, which prohibits the take of plant and animal species designated by the Fish and Game Commission as endangered or threatened in the State of California. CDFG regulations are set forth in the California Fish and Game Code. Under the California ESA, take is defined as to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill a given species. The California ESA Section 2053 stipulates that state agencies may not approve projects that will jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat essential to the continued existence of those species, if there are reasonable and prudent alternatives available consistent with conserving the species or its habitat which would prevent jeopardy (California Fish and Game Code, Section 2050 et seq.). The California ESA defines an endangered species as a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease. The California ESA defines a threatened species as a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant that, although not presently threatened with extinction, is likely to become an endangered species in the foreseeable future in the absence of the special protection and management efforts. A candidate species is defined as a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant that the Commission has formally noticed as being under review by the department for addition to either the list of endangered species or the list of threatened species, or a species for which the Commission has published a notice of proposed regulation to add the species to either list (California Fish and Game Code, Section 2068). The California ESA does not list insect species. I-15 May 2011

16 The California ESA authorizes the take of endangered, threatened, or candidate species if take is incidental to otherwise lawful activity and if specific criteria are met. These provisions also require CDFG to coordinate consultations with the USFWS for actions involving federally listed species that are also state-listed species. In certain circumstances, the California ESA allows CDFG to adopt a federal ESA incidental take authorization as satisfactory for California Environmental Quality Act (CEQA) purposes based on findings that the federal permit adequately protects the species and is consistent with state law. A California ESA permit may not authorize the take of fully protected species that are protected in other provisions of the Fish and Game Code, discussed further below. I.D.1.3 Natural Communities Conservation Planning (NCCP) Act The statutory framework for the NCCP Program was established by the California Legislature through its enactment of the NCCP Act (California Fish and Game Code, Section 2800 et seq.). The NCCP Program is designed to be a voluntary, collaborative planning program involving landowners, local governments, state and federal agencies, environmental organizations, and interested members of the public in the formulation and approval of the NCCPs. The purpose of the NCCP Program is to provide long-term, largescale protection of natural vegetation communities and wildlife diversity while allowing compatible land uses and appropriate development and growth. The NCCP process was initiated to provide an alternative to single species conservation efforts. The shift in focus from single species, project-by-project conservation efforts to large-scale conservation planning at the natural community level is intended to facilitate regional and subregional protection of a range of species that inhabit a designated natural community or communities. The NCCP Program is a cooperative effort to protect habitats and species. A primary objective of the NCCP Program is to conserve natural communities at the ecosystem level while accommodating compatible land use. The program seeks to anticipate and prevent the controversies and gridlock sometimes resulting from species listing by focusing on the long-term stability of wildlife and plant communities and including key stakeholders in the process. The 1991 NCCP Act was replaced with a substantially revised and expanded NCCP Act in The revised NCCP Act established new standards and guidance on many facets of the program, including scientific information, public participation, biological goals, interim project review, and approval criteria. The new NCCP Act took effect on January 1, To approve an NCCP under the new NCCP Act, CDFG must make a series of findings. I-16 May 2011

17 I.D.2 The Plan must be consistent with the Planning Agreement. The Plan must provide for the conservation and management of the covered species (conservation is defined to mean that the Plan must contribute to species recovery). The Plan must protect habitat, natural communities, and species diversity on the landscape level. The Plan must conserve the ecological integrity of large habitat blocks, ecosystem function, and biodiversity. The Plan must support sustainable populations of covered species. The Plan must provide a range of environmental gradients and habitat diversity to support shifting species distributions. The Plan must sustain movement of species among reserves. Mitigation and conservation must be roughly proportional to impacts in timing and extent. Funding for conservation, monitoring, and adaptive management must be adequately assured. Related Federal and State Wildlife Laws The Fish and Game Commission and CDFG regulate hunting and fishing activities. The Commission establishes policies, such as encouraging recreational hunting and managed depredation of feral pigs that threaten or harm natural habitat areas. CDFG administers the implementation of these policies through the adoption of regulations, management of licensing activities, and enforcement. I.D.2.1 Migratory Bird Treaty Act (MBTA) The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703 et seq.) was originally passed in 1918 as four bilateral treaties, or conventions, for the protection of a shared migratory bird resource. Each of the treaties protects selected species of birds and provides for closed and open seasons for hunting game birds. The MBTA protects over 800 species of birds. I.D.2.2 Bald and Golden Eagle Protection Act (BGEPA) The Bald and Golden Eagle Protection Act (BGEPA) (16 U.S.C. 668 et seq.) provides for protection of bald and golden eagles by prohibiting, except under certain specified conditions, the taking and possession of or commerce in such birds (or the parts, eggs, or nests of the birds). The USFWS is responsible for implementing BGEPA. BGEPA identifies I-17 May 2011

18 certain conditions under which permits may be issued for incidental take of bald or golden eagles. I.D.2.3 California Fish and Game Code Sections 3511 and 4700 of the Fish and Game Code provide that designated fully protected species may not be taken or possessed without a permit from the Fish and Game Commission. Incidental take of these species is not authorized by law. Pursuant to Section of the Fish and Game Code, it is unlawful to take, possess, or destroy any birds of prey; or to take, possess, or destroy any nest or eggs of such birds. Birds of prey refer to species in the orders Falconiformes and Strigiformes. Nests of all other birds (except English sparrow and European starling) are protected under Sections 3503 and 3513 of the Fish and Game Code. Pursuant to Section 1602 of the Fish and Game Code, the CDFG regulates all diversions, obstructions, or changes to the natural flow or bed, channel, or bank of any river, stream, or lake that supports fish or wildlife. CDFG defines a stream (including creeks and rivers) as a body of water that flows at least periodically or intermittently through a bed or channel having banks and supports fish or other aquatic life. This includes watercourses having surface or subsurface flow that supports or has supported riparian vegetation (California Fish and Game Code, Section 1600 et seq.). Diversion, obstruction, or changes to the natural flow or bed, channel, or bank of any river, stream, or lake that supports fish or wildlife requires authorization from CDFG by means of entering into an agreement pursuant to Section 1602 of the Fish and Game Code. I.D.3 I.D.3.1 Other Related Federal and State Regulations and Plans Federal Land Policy and Management Act (FLPMA) The BLM published the Federal Land Policy and Management Act (FLPMA) of 1976, as amended (43 U.S.C et seq.) to establish a public land policy and provide guidelines for land management. The FLPMA includes land use planning, range management, rightsof-way (ROWs), and designated management areas. The designated management areas include the CDCA, King Range, and BLM Wilderness Study. I.D.3.2 California Desert Protection Act of 1994 The California Desert Protection Act was enacted on October 31, 1994, and covers approximately 9.2 million acres of public lands, extending from the far northern end of I-18 May 2011

19 Death Valley to the U.S. Mexico border. The act designated two national parks, Death Valley and Joshua Tree, and one national preserve, the 1.4-million-acre Mojave National Preserve. It also preserves millions of acres of federal wilderness areas and other special areas. National Park Service (NPS) and BLM manage these areas with active coordination with other organizations (BLM 2009). I.D.3.3 California Desert Conservation Area (CDCA) and CDCA Amendments Section 601 of the FLPMA describes the CDCA, a 25-million-acre area in Southern California, of which 12.1 million acres are BLM-administered public lands (43 U.S.C. 1781). The CDCA Plan of 1980, as amended in 1999, provides management principles for the CDCA. Four multi-use classes are used in the plan: controlled (Class C), limited (Class L), moderate (Class M), and intensive (Class I) land use. The CDCA contains approximately 80 Areas of Critical Environmental Concern (ACECs), which are areas given special management protection for biological resources. The ACECs cover approximately 750,000 acres, and each ACEC has its own management plan to ensure maintenance and protection of the ACEC resources. I.D.3.4 Relevant BLM Resource Management Plans (RMPs) Approved in 1980, the CDCA Plan was prepared to meet congressional direction set out by the FLPMA. The plan continues to provide an effective multiple-use management blueprint for the 25-million-acre desert region, nearly half in BLM jurisdiction, encompassing the conservation area in the counties of Imperial, Inyo, Kern, Los Angeles, Mono, Riverside, and San Bernardino (BLM 2006). Three RMPs were established as regional amendments to the CDCA Plan within the DRECP boundary: West Mojave Desert (WEMO), Northern and Eastern Mojave Desert (NEMO), and Northern and Eastern Colorado Desert (NECO) (BLM 2006). The WEMO Plan encompasses 9.3 million acres in Inyo, Kern, Los Angeles, and San Bernardino counties. The plan amendment addresses the conservation and protection of over 100 listed or special-status wildlife species and their habitats, including the desert tortoise and Mohave ground squirrel. The West Mojave Plan adjusts conservation areas, establishes standards and guidelines for land health, designates BLM routes, and establishes desert wildlife management areas (DWMAs) (BLM 2006). NEMO covers 2.7 million acres on public lands within Inyo, Mono and San Bernardino counties. In addition to outlining the conservation strategy to manage special-status species and habitats, the plan addresses the following key issues: standards and guidelines for land health, establishment of desert wildlife management areas for the desert tortoise, I-19 May 2011

20 ACECs and strategies for other listed and special-status species, designation of routes of travel, wild and scenic rivers, and land acquisition priorities (BLM 2006). NECO covers 3.8 million acres on federal lands within Imperial, Riverside and San Bernardino counties. This regional amendment focuses on conservation management and provides aid in the recovery of the desert tortoise and the Coachella Valley milk-vetch (Astragalus lentiginosus var. coachellae; BLM 2006). Sixty other special-status species and their habitats also receive attention in the plan. In addition, the plan provides a streamlined process for the issuance of land use permits. Key issues discussed for this area include standards and guidelines for land health, DWMAs areas for the desert tortoise, wildlife management areas for bighorn sheep and other species, designation of routes of travel, and land acquisition priorities (BLM 2006). I.D.3.5 BLM Solar Energy Development Program Environmental Impact Statement (PEIS) The BLM and DOE are working jointly as lead agencies to prepare the Programmatic Environmental Impact Statement (PEIS) for Solar Energy Development in Six Southwestern States to evaluate the proposed BLM program and whether to develop DOE guidance. As of February 2010, the BLM received 127 active applications for ROW authorizations for solar facilities to be located on BLM-administered lands. A Solar Energy Development Policy (BLM 2007) was established in 2007 and updated in 2009 to provide procedures for processing ROW applications on a project-specific basis in accordance with the requirement s applicable statutes and regulations. To respond in a more efficient and effective manner to the high interest in siting utilityscale solar energy development on public lands and to ensure consistent application of measures to avoid, minimize, or mitigate the adverse impacts of such development, the BLM proposes to develop a new Solar Energy Program. This program would be applicable to all pending and future solar energy development applications upon execution of the Record of Decision (ROD). The proposed program has been designed to meet the requirements of Order 3285A1 to identify and prioritize development in appropriate locations or solar energy zones (SEZs) (DOE and BLM 2010). The BLM, along with the U.S. Department of Energy (DOE), has released the Draft PEIS for Solar Energy Development to evaluate a proposed solar-energy program on BLM lands in six western states (Arizona, California, Colorado, New Mexico, Nevada, and Utah). The proposed program would establish an environmental policy for the deployment of DOEsupported, utility-scale solar projects and would include the development of mitigation strategies, the establishment of, and the creation of siting criteria. The multi-state planning I-20 May 2011

21 area addressed by the Draft PEIS encompasses the Mojave and Colorado Desert regions that are the focus of the DRECP. This process was initiated in 2008 and is ongoing. A Draft PEIS was released for public comment on December 17, The Final PEIS is expected to be completed in late The environmental policies developed by the BLM through the Solar PEIS would apply only on BLM-administered lands. The BLM is actively involved in the development of both the Solar PEIS and the DRECP and will coordinate based on commitments made by the DOI and the State of California in a 2009 MOU, to the best of its ability. For more information on the Solar PEIS process, see I.D.3.6 BLM Wind Energy Development Program Environmental Impact Statement The Wind Energy Development PEIS was completed and a Record of Decision issued by the DOI and BLM in June 2005 to evaluate the Wind Energy Development Program for public lands in the Western United States (BLM 2005). This program was developed to support National Energy Policy recommendations to increase renewable energy production and is focused on the development of wind energy on public lands and the amendment of selected BLM land use plans. The program establishes policies and BMPs for wind-energy development and identifies minimization and mitigation measures. As the result of the proposed action, 52 land use plans in Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington, and Wyoming were amended. Land use plans in California were not amended in response to the Wind PEIS because ongoing and future land use plan amendments were meant to address wind energy development in California for areas where potential projects may occur. The BMPs and policies in the Wind PEIS do apply to California. The environmental policies developed by the BLM through the Wind PEIS apply only on BLM- administered lands. It is anticipated that the Wind PEIS will inform the DRECP in a number of ways, including as a source of mitigation measures to avoid, minimize, and mitigate impacts to covered species. The Wind PEIS is likely to be particularly helpful for the DRECP EIS/EIR (BLM 2011). For more information on the Wind Energy Development PEIS, see: I.D.3.7 BLM Geothermal Program Environmental Impact Statement In October 2008, the BLM and the USFS completed a joint Geothermal Resources Leasing PEIS to analyze and expedite the leasing of BLM-and USFS-administered lands with high potential for renewable geothermal resources in 11 western states and Alaska (BLM and USFS 2008). The effort was initiated in response to recent government policies and I-21 May 2011

22 technological advances that increased the demand for accessing geothermal resources on federal lands. These lands include areas administered by the BLM and the USFS. (Federal lands within the National Wildlife Refuge System and the National Park System are closed to geothermal leasing, and adjacent public and National Forest System lands require special analysis prior to issuance of geothermal leases.) The program identified public and National Forest Service lands with potential for geothermal development as being open or closed and to issue (or deny) lease applications pending as of January The BLM will also identify public lands that are administratively closed or open to leasing, and under what conditions; develop BMPs for future geothermal leasing and development activities; and amend BLM land use plans to adopt these changes. It is anticipated that the Geothermal PEIS will inform the DRECP in ways similar to that described for the Wind PEIS (BLM 2010). For more information on the Geothermal PEIS, see: I.D.3.8 State and Federal Regulatory Structure for Wetlands Protection The U.S. Army Corps of Engineers (USACE) regulates the discharge of dredged and/or fill material into waters of the United States under Section 404 of the federal Clean Water Act. Certain portions of the Clean Water Act are implemented by the State Water Resources Control Board and applicable regional water quality control boards (RWQCBs) in California. The term waters of the United States is generally defined to include navigable waters as well as other waters (such as streams and seeps) and wetlands that meet applicable regulatory criteria. The U.S. Environmental Protection Agency (EPA) EO states that measures should be taken to avoid to the extent possible the long and short term adverse impacts associated with the destruction or modification of wetlands and to avoid direct or indirect support of new construction in wetlands wherever there is a practicable alternative (42 FR 26961). The State Water Resources Control Board and local RWQCB regulate state water resources, including streams and other surface waters, wetlands, and groundwater under the Porter- Cologne Act and portions of the federal Clean Water Act. I.D.3.9 California Environmental Quality Act (CEQA) CEQA requires identification of a project s potentially significant impacts on physical environmental conditions and ways that such impacts can be feasibly avoided, minimized, or mitigated. CEQA requires that feasible mitigation measures and alternatives be identified to avoid or reduce significant environmental impacts of proposed projects to a less-than-significant level. If significant environmental impacts cannot be feasibly avoided I-22 May 2011

23 or mitigated, then overriding considerations must be adopted to approve the project. CEQA applies to discretionary actions or approvals by public agencies that may result in an effect on the environment. The action of the CEC to adopt the DRECP is subject to CEQA compliance, as is the issuance of an NCCP Act permit by CDFG. The CEC is serving as the lead agency under CEQA. The draft EIS/EIR that will be prepared for this NCCP/HCP will provide programmatic compliance with CEQA for all activities covered by this Plan. Under the State CEQA Guidelines, the EIR will serve as a Program EIR, consistent with Section Future projects that receive take coverage under the Plan will also need to comply with CEQA at the project level through the agency granting project approval, such as a county, the CEC, or the CPUC. It is intended that the conservation provided in this Plan and the evaluation presented in the EIR will be sufficient to meet all CEQA mitigation standards for impacts on the special-status species and natural communities that are covered in this Plan. However, because circumstances may change, the need for further CEQA documentation may not be entirely precluded. Barring changes sufficient to trigger subsequent or supplemental CEQA documentation under Section of the statute, it is expected that future CEQA reviews for activities that are consistent with and receive take coverage under this Plan will include adoption of appropriate conservation measures in this Plan as conditions of project approval to comply with CEQA for the covered species and natural communities addressed in this Plan. Many of the conservation measures in the Plan will also benefit other specialstatus species (i.e., species not covered by the Plan); such measures may be sufficient to allow use of the EIS/EIR to meet CEQA review requirements for these other species as well. I.D.3.10 National Environmental Policy Act (NEPA) The National Environmental Policy Act (NEPA) process provides the overall framework for the evaluation of the environmental effects of federal actions. NEPA (42 U.S.C et seq.) states that environmental statements are required for major Federal actions significantly affecting the quality of the human environment and that the planning and decision-making process shall follow a systematic, interdisciplinary approach. Federal agencies are required to identify and assess reasonable alternatives to proposed actions based on the Council on Environmental Quality (CEQ) (40 CFR 1500 et seq.). Alternatives must avoid or minimize adverse environmental impacts and enhance the quality of the human environment. In addition, the NEPA process must integrate impact studies required by other environmental laws and executive orders in order to determine significant environmental issues in project planning. The adoption of the Plan as an HCP and the issuance by USFWS of an incidental take permit under Section 10 of the ESA for the DRECP I-23 May 2011