Meeting Notes: California Condors and Habitat Conservation Planning in Tehachapi Wind Resource Area

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1 Meeting Notes: California Condors and Habitat Conservation Planning in Tehachapi Wind Resource Area April 7, :00 am - 12:00 pm NRG Facility, Mojave, CA Attendance See attached spreadsheet. We apologize in advance for any missing attendee names or incomplete information and welcome any corrections. Agenda 1. Safety Briefing 2. Introductions and purpose/goals of meeting: discussion of risk to California condors (condors) at wind energy projects in the Tehachapi Wind Resource Area (WRA) and consideration of a habitat conservation planning effort to mitigate risk to condors and wind energy operators. 3. Presentation by the U.S. Fish and Wildlife Service (Service): condor life history; population status and threats, So. California flock movements and risk in the Tehachapi WRA, regulatory setting for habitat conservation planning (HCP), benefits of a group HCP 4. Discussion of questions provided by the wind operators 5. Wrap-up and action items Action items resulting from the meeting Service The Service will ask the condor recovery team for information on projected growth of the So. California condor flock over time (e.g., number of projected releases, etc.). The Service will discuss options internally and with Kern County for structure of the HCP and what entity might hold the Incidental Take Permit (ITP). The Service will pull together a copy of the threats matrix California condor wind energy work group in DONE The Service will discuss Section 6 grant funding opportunities for an HCP with California Department of Fish and Wildlife (CDFW). The Service will continue to consider various approaches for modeling risk to condors at wind energy projects and individual turbines throughout the Tehachapi WRA. The Service will approach staff at its Regional office (Mike Fris and team) with ideas for a visit to the Tehachapi WRA to discuss condors and wind energy with the goal of eliciting support at the Regional level for a condor group HCP. DONE. The idea was well received. Now the Service needs to coordinate the trip and will contact the operators during the planning process. Operators The operators will continue internal discussions to determine interest in participating in a group HCP and identify any additional immediate information requests for the Service.

2 Discussion notes Presentation questions: following the Service presentation there were a number of questions including but not limited to the following: Is there an effort to tag all condors, including wild hatched birds? Not long term but currently there is an intensive annual trapping effort for monitoring condor blood lead levels. With this trapping effort a large proportion of the flock has been tagged (GPS-tagged) and there are plans to increase the number of tagged condors for the immediate future (i.e., 1-2 years and possibly longer). The long-term goal is to recover the species to the point where intensive management (and tagging) is no longer necessary. What funding sources are available for condor management and research? Funding is largely from Service base funds but examples of other funding sources include zoos and different NGOs that contribute to captive breeding and education programs. Most lead outreach is funded by NRG as a condition of the consultation between the Bureau of Land Management and Service. Kern County requires wind operators to contribute to a condor conservation fund that is held by the Santa Barbara Zoo. Questions submitted by the wind energy operators: a week prior to the meeting the wind operators submitted a list of questions for the Service to consider and discuss at the meeting. Below is the list of questions with preliminary answers and additional topics of discussion. Who would be considered the Applicant in the event a regional condor HCP and permit were pursued? There are various options including but not limited to development of a quasijoint powers authority with implementation achieved through contracts or there is the possibility of Kern County holding the ITP. If an HCP were developed, what would happen if another company wanted to join (or abandon) the effort during development of the HCP? There is the ability for companies to join/abandon the process during development of the HCP, but most likely the Service and team working on the HCP (e.g., operators and consultants) would need to set a deadline beyond which additional companies would not be allowed to join. What about new projects that become operational? The ability to include new projects will depend on a number of factors including what activities would be covered by the HCP (construction, operations and maintenance, etc.) and the specifics of the conservation strategy that would determine the effects of new projects and whether it is feasible to include specific projects. Generally the question is less of a legal issue and more of a functional issue. For planning purposes would the Service be able to provide a map of risk levels

3 across the Tehachapi WRA? How would this map be developed? A risk analysis would be a key part of the HCP process. The Service can envision incorporating all the different variables that affect risk to condors into a planning-area wide model. Examples of data layers include site location and topography, turbine size/type, curtailment capability, etc. Data on condor movements can be used to inform the risk model. There is a large amount of movement data from GPS-tagged condors. The California condor wind energy work group (agencies and industry) developed a threats matrix in 2012 for each stage in the lifecycle of a wind project. This matrix could be a great starting point for developing a condor conservation strategy Would the service be looking at how technologies might evolve over time when developing the conservation strategy? Most definitely. Prime examples include new detection technologies and also replacement of older turbines with turbines that can be curtailed if condors are detected approaching turbines. How would covered lands, permit area, and covered activities be defined? The covered lands would be the Tehachapi Mountains and adjacent lands with the permit area including the Tehachapi Wind Resource Area with all associated wind projects. Current discussion is for covered activities to include operations and maintenance of wind projects. Who would draft the HCP (including NEPA and other document) An HCP is an applicant-driven process that is generally drafted by a hired team of consultants, but there are other possible options. It is unlikely that the Service will have the staff capacity to fill the role of drafting the HCP and instead would serve in an advisory/team context. Is there an anticipated take limit and permit term, and how would take be allocated across all permittees/projects? The Service has not made any decisions at this time on the anticipated take limit, but based on the size of the southern California flock of condors the level of take allowed will be small. Therefore, the limited amount of take allowed would make it problematic for the Service to issue take permits to numerous individual projects and a group sharing of take would be a preferred option. The anticipated permit term length has not been fleshed out and is up for discussion. Many traditional terms are 30 years (i.e., the life of a project), however in some cases the Service is limiting HCP terms due to increasing uncertainty and lessons learned from past HCPs. If this were the case then the HCP would need to include a mechanism to make the terms renewable so that the process can cover changes to risk and wind project operations (e.g., repowering). Would condor be the only covered species, and if so, how would the Service handle other listed species within the permit area? How would golden eagles be treated, especially as it pertains to the otherwise lawful provision and new eagle permit regulations? How

4 will the Service address the state fully protected species issues? The Service recognizes that to a large degree more species = more complicated. Ultimately the decision on covered species is also driven by the applicants. The Service is aware that willow flycatchers (and presumably the federally listed southwestern willow flycatcher) occur in the Tehachapi WRA and can be impacted by wind energy. However, it hasn t been determined if and what avian species other than condor are reasonably likely to be taken. The operators pointed out that the wind energy industry has extensive data on a diversity of species that can help inform decisions on what if any additional species might be included in an HCP for the Tehachapi WRA. There are no legal requirement to cover eagles in an HCP, because they are not a federally listed species under ESA and instead receive special protections under MBTA and BGEPA. However, there are options to include eagles in the HCP process. If the operators would like coverage for eagles under the ITP, the HCP would have to contain minimization and mitigation measures that at least meet the standards for issuance of a permit under the BGEPA. In terms of state laws, ITPs can be issued for fully protected species and have been in the past. Natural Community Conservation Plans are the State mechanism to permit the take of fully protected species. The operators asked if there could be CEQA issues if Kern County is the applicant, since the CA Condor is a fully protected species. The Service will contact Kern County to see if this in fact an issue. The operators asked how the Service can provide an HCP without violating the otherwise legal activity clause, with regard to protecting eagles. The Service considers the legal activity as operations of turbines, not killing eagles. If you kill an eagle during the development of an HCP, if no eagle coverage is being processed, then things can get complicated. Eagles are generally the purview of the Office of Migratory Birds and the Ecological Services branch of the Service can t grant prosecutorial discretion, a decision that lies with the Service s Office of Law Enforcement. Of note is that the Service has shown a willingness on other projects where unpermitted take has occurred to work with operators to get them into permit compliance, especially in instances where they are working with us already. Would any new data be required if an HCP were developed? The Service doesn t anticipate the need for additional new data, however, existing data (e.g., GPS telemetry data) will need to be analyzed to meet the needs of the HCP. Discussion of mitigation ideas ensued. The Service noted that lead is the leading

5 threat and would likely push for more lead removal and abatement as a measure to mitigate the impacts of take. The operators noted that mitigation must be financeable, because banks will not invest in projects that cannot be funded or are not cost effective it must be predictable over time and reasonable/manageable. Have any Condor HCPs been completed? Yes, one with take granted in the form of capture or harass; however, no lethal take of condors has been granted through the HCP process to date. Lethal take of condors has been granted through Section 7. What is the rough price-tag estimate for a condor HCP? Including development and implementation with mitigation. The costs aren t worked out at this time, but one approach is for each project to be charged in terms of that project s risk to condors. Compensatory mitigation would likely be reduced as risk decreases with increased minimization. One of the operators with experience in this realm thought several $100,000 per year for the entire area is feasible. The operators also noted that the HCP will have to be adaptable or at least forecast for changes in condor population size. What is the cost of replacing a condor? The Service will have to look into this further. However, as the condor population increases then the amount of take and the effect of take could change proportionately. How would a condor HCP affect or interact with the Desert Renewable Energy Conservation Plan (DRECP)? The DRECP has no binding effect on this HCP. However, the best management practices (BMPs) described in the DRECP would provide a good starting point for developing the HCP avoidance and minimization measures. Additionally we could state that the HCP lines up with phase two of the DRECP, which could increase our competitiveness for section 6 Planning Grants. How would CDFW, Kern County, and other relevant agencies (e.g. BLM) be engaged in this process? Has any outreach occurred to these agencies to-date? The Service is currently discussing this project with the above agencies. If take of a condor were to occur at a participating project during HCP development, how would the Service handle that situation? As mentioned above, the Service cannot guarantee prosecutorial discretion. However, the Service has shown a willingness on other projects where

6 unpermitted take of eagles has occurred, to work with operators to get them into compliance, especially in instances where they are working with us already. What type of NEPA analysis would be expected for a condor HCP and how would the federal action be defined? The federal action would be issuance of the ITP. The Regional office of the Service is suggesting that we should do an environmental impact statement (EIS), but at the local office we are still considering all options including an Environmental Assessment (EA) or Categorical Exclusion (CX). Ultimately the Service thinks that the impacts of this HCP will be wholly positive. The operators noted that repowering includes a construction component, thus we might not want to overly restrict ourselves on covered activities (i.e., only cover operations) so that projects can adapt over time without regulatory hurdles. The Service doesn t think that construction activities, including the replacement of turbines, poses much risk to condors and thus may not need to be a covered activity. One notable exception is control of micro-trash during construction. Ultimately the Service thinks that replacing older turbines with ones that can be curtailed would be a positive outcome that could reduce risk to condors. The activities that would be covered under a condor HCP is a topic to return to during future discussions. What National Historic Preservation Act (NHPA) and/or tribal cultural resources consultation and agreements would be required? NHPA would not be necessary if the covered action is restricted to operations and maintenance only. In terms of tribal considerations, the Service would notify and talk directly with the tribes.. Would projects be evaluated individually based on degree of risk, and if so how would this be determined? The Service envisions that each project would be evaluated individually based on some form of project/turbine risk modeling, as discussed previously. Is the Service envisioning a joint HCP, or individual HCPs? The Service cannot envision a scenario where every project is allotted the take of a small number of condors because of the low numbers in the population, which largely necessitates the formation of a single HCP or a few smaller joint HCPs. Additionally we would want to keep the number of HCPs to a minimum to take advantage of various efficiencies of scale mentioned during the presentation. The operators noted that the differences across wind projects in the Tehachapi

7 WRA could result in numerous individual permit applications or several small joint HCPs versus all the operators participating in one large HCP. The limited take available is the biggest issue plaguing the formation of many individual HCPs. Additionally, condor conservation actions could suffer if individual permits were pursued, as opposed to a single take permit. Multiple joint or many individual HCPs would also greatly increase the Service workload, and thus slow the process. The Service is legally bound to review all HCPs submitted, but would need to consider the scope and the anticipated magnitude of the HCPs conservation benefit in determining how to allocate limited staff resources. Who from the Service would be the primary points of contact, and how would document review be handled? Condor HCP work and document review would be handled by a team from the Service. Peter Sanzenbacher is the primary point of contact from the Service. If issues/concerns arise with the condor HCP effort then who oversees the current Service team that the operators can contact? i.e., what is the chain-of-command? The current Service team working on this condor HCP effort is based out of the Palm Springs field office and is under the direction of Mike Fris at the Region 8 office, located in Sacramento, CA. How would solicitor engagement take place, and have they been involved in any internal discussions to-date? Solicitors would review all documents before they reach the public draft stage. The Service has already engaged the Solicitor s office in preliminary discussions. Solicitor involvement would need to be accounted for in any projected timelines for completing an HCP. Has anyone in the Service that is taking part in this effort ever been involved in other active regional wind HCPs (Midwest HCP, WEWAG, etc.)? No, but the Service is using these and other HCPs as references and has the ability to contact offices working on these other HCPs to discuss lessons learned. How would this effort rank in terms of regional priorities? A condor HCP fits with one of the Service s Region 8 objectives to be more proactive and thus less reactive. We have approached our supervisor and he considers this a high priority effort for the Palm Springs/Carlsbad Fish and Wildlife Office. We are currently working with the regional office in Sacramento to gain similar support.

8 Does the Service have any preliminary ideas on types of mitigation/adaptive management? As discussed previously there are various types of mitigation measures to minimize risk (e.g., observers, geo-fences, and other partnered with curtailment; repowering, etc.) and a condor HCP would have to include language to allow for adaptive management as new technologies come on-line (e.g., machine vision, etc.) that might improve mitigation efforts. The same applies to conservation approaches and where to focus efforts (e.g., retro-fit powerpoles, lead abatement, etc.). Will preservation of additional mitigation lands be required, or will contribution to recovery plan activities be sufficient? Currently the Service is not considering mitigation lands as a necessary part of a condor HCP. The Service s focus would be on promoting other recovery actions such as lead abatement, reducing other threats, and possibly increasing the capability of our partners to rear and release more birds. What types of conservation measures might be appropriate for a condor HCP? Does the Service envision use of a conservation fund? Again, minimization and mitigation measures mentioned in the Service presentation and during the discussion would all be considered. Creation of a conservation fund, which would be used to fund mitigation, is an option. New Questions: Is the HCP manual in play due to review from Zinke? o Not really, because the handbook is just a how-to manual and has recently been revised. How do the operators pursue an HCP when the Endangered Species Act (ESA) is potentially on the table for revision? If the Service proposes starting an HCP and these efforts often take an extended period to complete (e.g., it currently takes four years to issue an eagle permit, and these timelines cause great issues for the operators) then would it make more sense for the dust to settle (regarding ESA and other federal law uncertainties) before proceeding? o In large part it is a question of risk whether the operators are willing to assume this risk and wait to see if Congress will in fact change the ESA. o The California condor is such an iconic species that the Service thinks it will continue to be a priority of the current and future administrations, however, what Congress might or might not do with any changes to the ESA is a complete unknown. o We can still get started with working on a condor HCP.

9 What are the next steps? o There are a number of action items that the Service (see above) and operators can start working on. e.g., the Service needs to get a firm answer from Kern County regarding their interest in holding the Incidental Take Permit. What happens if not enough companies want to join? o Then we will likely end up with a shortage of condor take to go around if there are multiple individual or small group take permit applications. What is the time frame for developing this HCP? o The time frame depends in part on the level of NEPA required. If an EIS is done it could take several years versus an EA that could be completed faster or a CX that would be the fastest.