May 10, 2012 Fresno County Planning Commission meeting, at which an attorney for California ...

ADAMS BROADWELL JOSEPH & CARDOZO A PROFESSIONAL CORPORATION

DANIEL L. CARDOZO THOMAS A. ENSLOW PAMELA N. EPSTEIN TANYA A. GULESSERIAN MARC D. JOSEPH ELIZABETH KLEBANER RACHAEL E. KOSS ROBYN C. PURCHIA ELLEN L. TRESCOTT

ATTORNEYS AT LAW 601 GATEW AY BOULEVARD, SUITE 1000 SOUTH SAN FRANCISCO, CA ___________

94080-7037

SACRAMENTO OFFICE 520 CAPITOL MALL, SUITE 350 SACRAMENTO, CA 95814-4721 TEL: FAX:

(916) 444-6201 (916) 444-6209

TEL: (650) 589-1660 FAX: (650) 589-5062 [email protected]

OF COUNSEL THOMAS R. ADAMS ANN BROADWELL

May 7, 2012

BY: OVERNIGHT MAIL, FAX, AND E-MAIL Derek Chambers Department of Public Works and Planning Fresno County 2220 Tulare Street, 6th Floor Fresno, CA 93721 (559) 600-4200 [email protected] Re:

Comments on the Initial Study/Mitigated Negative Declaration for the Gestamp Asetym Solar “GIFFEN 1” Project (Conditional Use Permit Application No. 3347)

Dear Mr. Chambers: We are writing on behalf of Fresno County Citizens for Responsible Solar to provide comments on the Initial Study/Mitigated Negative Declaration (“IS/MND”) prepared by Fresno County (“County”), pursuant to the California Environmental Quality Act (“CEQA”),1 for the GIFFEN 1 power plant proposed by Gestamp Asetym Solar (“Applicant”). GIFFEN 1 comprises a solar generating facility consisting of approximately 90,720 photovoltaic (“PV”) modules, a 1,200 square-foot maintenance building, eighteen 160 square-foot inverter/transformer buildings, a substation, and a two-mile transmission line interconnecting the facility with PG&E’s existing substation (“Project”). According to the IS/MND, the Project has a generating capacity of 18 megawatts (“MW”) and will be located on approximately 160 acres in Fresno County, nine miles southwest of the City of San Joaquin. The Project requires a Conditional Use Permit (“CUP”) from the County.

1

Pub. Resources Code, § 21000 et seq.

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Derek Chambers May 7, 2012 Page 2 As explained more fully below, the IS/MND prepared for the Project does not comply with CEQA’s requirements. The IS/MND fails to include a complete, accurate and stable Project description and fails to set forth the environmental baseline for agricultural, air quality, and hazards. Additionally, there is a fair argument, based upon substantial evidence, that the Project will result in potentially significant and unmitigated impacts on agricultural resources, air quality, biological resources, and worker and public health through worker exposure to Coccidioides immitis (“C. immitis”) spores and residual pesticides during construction and decommissioning activities. Accordingly, the County may not approve the CUP until it prepares an Environmental Impact Report (“EIR”) that adequately analyzes the Project’s potentially significant direct, indirect and cumulative impacts, and incorporates all feasible mitigation measures to minimize these impacts. We prepared these comments with the assistance of air quality expert James Clark, Ph.D., biologist Scott Cashen, M.S., and hazardous materials expert Matthew Hagemann P.G., C.Hg. Their technical comments are attached hereto and submitted in addition to the comments in this letter. Accordingly, the County must address and respond to the comments of Dr. Clark, Mr. Cashen, and Mr. Hagemann separately. I.

STATEMENT OF INTEREST

Fresno County Citizens for Responsible Solar is an unincorporated association of individuals and labor unions that may be adversely affected by the Project’s potentially significant environmental and public and worker safety hazards. The coalition includes Fresno County residents Jeff Taylor, Carrie Taylor, and Vaughn Laymon, and California Unions for Reliable Energy (“CURE”) and its local union affiliates and the local union members and their families that live and/or work in Fresno County. CURE is a coalition of labor unions whose members help solve the State’s energy problems by building, maintaining and operating conventional and renewable energy power plants. Since its founding in 1997, CURE has been committed to building a strong economy and a healthier environment. CURE has helped cut smog-forming pollutants in half, reduced toxic emissions, increased the use of recycled water for cooling systems and pushed for groundbreaking pollution control equipment as the standard for all new power plants, all while ensuring new power plants are built with highly trained, professional workers who live and raise families in nearby communities.

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Derek Chambers May 7, 2012 Page 3 Jeff Taylor, Carrie Taylor, and Vaugh Laymon and the individual members of CURE unions live, work, recreate and raise their families in Fresno County, including in and around the City of San Joaquin. Accordingly, they would be directly affected by the Project’s environmental and health and safety impacts. Individual members of the CURE unions may also work on the Project itself. They will, therefore, be first in line to be exposed to any hazardous materials, air contaminants or other health and safety hazards that exist onsite. In addition, CURE has an interest in enforcing environmental laws that encourage sustainable development and ensure a safe working environment for its members. Environmentally detrimental projects can jeopardize future jobs by making it more difficult and more expensive for business and industry to expand in the region, and by making it less desirable for businesses to locate and people to live there. Continued degradation can, and has, caused construction moratoriums and other restrictions on growth that, in turn, reduce future employment opportunities. II.

AN ENVIRONMENTAL IMPACT REPORT IS REQURIED TO SATISFY CEQA’S PURPOSES AND GOALS

CEQA has two basic purposes, neither of which the IS/MND satisfies. First, CEQA is designed to inform decisionmakers and the public about the potential, significant environmental effects of a project.2 CEQA requires that lead agencies analyze any Project with potentially significant environmental impacts in an environmental impact report (“EIR”).3 The purpose of the EIR is to “inform the public and its responsible officials of the environmental consequences of their decisions before they are made. Thus, the EIR protects not only the environment, but also informed self-government.”4 The EIR has been described as “an environmental ‘alarm bell’ whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return.”5 Second, CEQA directs public agencies to avoid or reduce environmental damage when possible by requiring alternatives or mitigation measures.6 The EIR serves to provide public agencies and the public in general, with information about Cal. Code Regs., tit. 14, § 15002, subd. (a)(1) (hereafter “CEQA Guidelines”). See Pub. Resources Code, § 21000; CEQA Guidelines § 15002. 4 Citizens of Goleta Valley v. Bd. of Supervisors (1990) 52 Cal.3d 553, 564 (citations omitted). 5 County of Inyo v. Yorty (1973) 32 Cal.App.3d 795, 810. 6 CEQA Guidelines § 15002, subd. (a)(2)-(3); Berkeley Keep Jets Over the Bay Com. v. Bd. of Port Comrs. (2001) 91 Cal.App.4th 1344, 1354. 2 3

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Derek Chambers May 7, 2012 Page 4 the effect that a proposed project is likely to have on the environment, and to “identify ways that environmental damage can be avoided or significantly reduced.”7 If a project has a significant effect on the environment, the agency may approve the project only upon a finding that it has “eliminated or substantially lessened all significant effects on the environment where feasible,” and that any unavoidable significant effects on the environment are “acceptable due to overriding concerns” specified in CEQA section 21081.8 CEQA’s purpose and goals must be met through the preparation of an EIR, except in certain limited circumstances.9 CEQA contains a strong presumption in favor of requiring a lead agency to prepare an EIR. This presumption is reflected in the “fair argument” standard. Under that standard, a lead agency must prepare an EIR whenever substantial evidence in the whole record before the agency supports a fair argument that a project may have a significant effect on the environment.10 The fair argument standard creates a “low threshold” favoring environmental review through an EIR, rather than through issuance of a negative declaration or notices of exemption from CEQA.11 An agency’s decision not to require an EIR can be upheld only when there is no credible evidence to the contrary.12 “CEQA excuses the preparation of an EIR and allows the use of a negative declaration when an initial study shows that there is no substantial evidence that the project may have a significant effect on the environment.” [Citations.] In certain situations where a

CEQA Guidelines § 15002, subd. (a)(2). Ibid.; CEQA Guidelines § 15092, subd. (b)(2)(A)-(B). 9 See Pub. Resources Code, § 21100. 10 Pub. Res. Code § 21082.2; CEQA Guidelines § 15064(f), (h); Laurel Heights Improvement Ass’n v. Regents of the University of California (1993) (“Laurel Heights II”) 6 Cal. 4th 1112, 1123; No Oil, Inc. v. City of Los Angeles (1974) 13 Cal. 3d 68, 75, 82; Stanislaus Audubon Society, Inc. v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-151; Quail Botanical Gardens Foundation, Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1601-1602. 11 Citizens Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 754. 12 Sierra Club v. County of Sonoma, (1992) 6 Cal.App.4th, 1307, 1318; see also Friends of “B” Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1002 [“If there was substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an [environmental impact report] and adopt a negative declaration, because it could be ‘fairly argued’ that the project might have a significant environmental impact”]. 7 8

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Derek Chambers May 7, 2012 Page 5 straightforward negative declaration is not appropriate, the agency may permit the use of a mitigated negative declaration. [Citations.]13 A mitigated negative declaration may be prepared instead of an EIR only when, after preparing an initial study, a lead agency determines that a project may have a significant effect on the environment, but: (1) revisions in the project plans or proposals made by, or agreed to by, the applicant before the proposed negative declaration and initial study are released for public review would avoid the effects or mitigate the effects to a point where clearly no significant effect on the environment would occur; and (2) there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment. 14 Courts have held that, “[i]f no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR.”15 “Substantial evidence,” required to support the fair argument, is defined as “enough relevant information and reasonable inferences from this information that a fair argument can be made to support a conclusion, even though other conclusions might also be reached.”16 Substantial evidence can be provided by technical experts or members of the public.17

Inyo Citizens for Better Planning v. Board of Supervisors (2009) 180 Cal.App.4th 1, 6-7, quoting San Lorenzo Valley Community Advocates for Responsible Education v. San Lorenzo Valley Unified School Dist. (2006) 139 Cal.App.4th 1356, 1372-1374 (emphasis added). 14 Pub. Resources Code, § 21064.5, emphasis added. 15 See, e.g., Communities For A Better Environment v. South Coast Air Quality Management Dist. (2010) 48 Cal.4th 310, 319-320 (CBE v. SCAQMD), citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75 and Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504-505. 16 CEQA Guidelines, § 15384(a). 17 See, e.g., Citizens for Responsible and Open Government v. City of Grand Terrace (2008) 160 Cal.App.4th 1323, 1340 [substantial evidence regarding noise impacts included public comments at hearings that selected air conditioners are very noisy]; see also Architectural Heritage Ass'n v. County of Monterey () 122 Cal.App.4th 1095, 1117-1118 [substantial evidence regarding impacts to historic resource included fact-based testimony of qualified speakers at the public hearing]; Gabric v. City of Rancho Palos Verdes (1977) 73 Cal.App.3d 183, 199. 13

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Derek Chambers May 7, 2012 Page 6 According to the CEQA Guidelines, when determining whether an EIR is required, the lead agency is required to apply the principles set forth in Section 15064(f) and: [I]n marginal cases where it is not clear whether there is substantial evidence that a project may have a significant effect on the environment, the lead agency shall be guided by the following principle: If there is disagreement among expert opinion supported by facts over the significance of an effect on the environment, the Lead Agency shall treat the effect as significant and shall prepare an EIR. The IS/MND fails to satisfy the basic purposes of CEQA by failing to inform the public and decisionmakers of the Project’s potentially significant impacts and to propose mitigation measures that can reduce those impacts to a less-thansignificant level. Here, the County lacks substantial evidence to conclude that the Project will “clearly” have a less-than-significant impact on the environment.18 As detailed in these comments, there is a fair argument, supported by substantial evidence, that the Project may result in significant impacts to agricultural resources, air quality, biological resources and public health. Therefore, the County is required to prepare an EIR which includes a complete and accurate Project description, a sufficiently detailed description of the environmental baseline, identifies the Project’s potentially significant impacts, and proposes mitigation which will reduce those impacts to a less than significant level. III.

THE PROJECT DESCRIPTION IN THE IS/MND IS INADEQUATE

The IS/MND does not meet CEQA’s requirements because it fails to include a complete and accurate Project description, rendering the entire impact analysis inherently unreliable. An accurate and complete project description is necessary to perform an adequate evaluation of the potential environmental effects of a proposed project. Without a complete project description, the environmental analysis under CEQA will be impermissibly narrow, thus minimizing the project’s impacts and undercutting public review.19 A “complete” project description, under CEQA, is also one which includes all phases of a project.20 The courts have repeatedly held that Pub. Resources Code, § 21064.5. See, e.g., Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376. 20 See CEQA Guidelines §§ 15063(a)(1), 15378(a) (a CEQA “project” is the “whole of an action”); Laurel Heights Improvement Assn. v. Regents of the Univ. of Calif. (1988) 47 Cal.3d 376, 396-397 (lead agency must assess the environmental impacts of all phases of a project); Natural Resources 18 19

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Derek Chambers May 7, 2012 Page 7 “an accurate, stable and finite project description is the sine qua non of an informative and legally sufficient [CEQA document].”21 Only through an accurate view of the project may affected outsiders and public decisionmakers balance the proposal’s benefit against its environmental costs.22 The IS/MND is inadequate because it fails to identify all components and all phases of the Project by excluding from the Project description the Applicant’s proposed two-mile transmission line, on-site water treatment plant, and Project decommissioning activities, and by failing to settle on a stable description of the proposed PV panel foundations. The County must include a complete Project description in an EIR. A.

The Project Description Improperly Excludes the Applicant’s Proposed Two-Mile Transmission Line

The Project description in the IS/MND is inaccurate because it fails to identify a two-mile transmission line that will interconnect the Project to PG&E’s system, vaguely referring to this Project component as “35 utility poles up to 80 feet tall.”23 The proposed transmission line will result in potentially significant impacts to biological resources, none of which are addressed in the IS/MND. As described by Mr. Cashen, the Project transmission line has the potential to cause significant impacts to birds, particularly raptors.24 The County’s failure to address this Project component also skews the impact analysis because the IS/MND fails to account for the acreage impacted by the transmission line, as well as the air quality and land use impacts associated with its construction and maintenance. Under CEQA, the proposed transmission line is part of the Project’s environmental footprint and must be analyzed as such in an EIR. B.

The Project Description Improperly Excludes the Applicant’s Proposed Water Treatment Plant

The Project Description in the IS/MND is incomplete because it excludes the Applicant’s proposed water treatment plant. According to the Applicant’s Operational Statement, a water system and small water treatment plant will be

Defense Council v. City of Los Angeles (2002) 103 Cal.App.4th 268, 278, 284 (same); Bozung v. Local Agency Formation Com. (1975), 13 Cal.3d 263, 283-84 (analysis must address “later phases of the project, and any secondary, support, or off-site features necessary for its implementation”). 21 County of Inyo v. County of Los Angeles (1977) 71 Cal.App.3d 185, 193. 22 Id. at 192-193. 23 See IS/MND, p. 1; cf. Applicant’s Operational Statement, p.1. 24 Scott Cashen Comments, p. 16 (Attachment 1).

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Derek Chambers May 7, 2012 Page 8 placed at the O&M building to provide on-site de-ionized water for panel washing.25 Although not described in the IS/MND, the Applicant proposes to apply backwash water, amounting to 145,000 gallons on annual basis, to the Project site and along the perimeter fence.26 As described by Mr. Cashen, backwash water from the Project’s water treatment facility will contribute high concentrations of selenium and other salts into water systems, which then may become toxic to wildlife.27 The IS/MND fails to address this Project component, thus impermissibly curtailing the impacts analysis. Under CEQA, the water treatment plant is part of the Project’s environmental footprint and must be analyzed as such in an EIR. C.

The Project Description Improperly Excludes Project Decommissioning Activities

According to the Applicant’s Operational Statement, the Project will have three phases: construction, operation and decommissioning.28 In particular, once the generating facility is permanently shut down, the Applicant will undertake a 6month decommissioning and reclamation process.29 During this time, the Applicant proposes to remove all above and below ground equipment and structures and building improvements, demolish and remove concrete foundations, and, if necessary, grade the site.30 The County failed to include these activities in the Project description section of the IS/MND. Phase three is part of the Project and may result in environmental impacts, including potentially significant impacts to air quality, public health, and biological resources. The County’s failure to conduct an assessment of the impacts associated with phase three of the Project violates CEQA. Under CEQA, phase three is part of the Project’s environmental footprint and must be analyzed as such in an EIR. D.

The IS/MND Fails to Provide a Stable Project Description

The IS/MND fails to state whether single-axis tilted tracker systems or fixedtilt panels are the proposed Project.31 The distinction is significant because each proposal will result in distinct, potentially significant environmental impacts, none of which are addressed in the IS/MND. If the Applicant employs tilted trackers, Applicant’s Operational Statement, p.12. See Applicant’s Operational Statement, p. 31. 27 Scott Cashen Comments, p. 2. 28 See, generally, Applicant’s Operational Statement. 29 Id. at Supplemental Information, p. 2. 30 Ibid. 31 See, e. g., IS/MND, p. 2. 25 26

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Derek Chambers May 7, 2012 Page 9 concrete ballast foundations would likely need to be drilled into the Project site.32 Whereas the use of fixed-tilt solar panels, would likely require the drilling and installation of piles or piers.33 These different methods of installing PV panels at the Project site will result in distinct potentially significant noise, air quality and public health impacts, none of which are addressed in the IS/MND. There is a fair argument that the installation of fixed-tilt solar panels will result in significant construction noise.34,35 The IS/MND fails to analyze the relative noise impacts of the two proposals, or to propose mitigation that will reduce construction noise to a less than significant level. The use of tracker systems, on the other hand, would significantly increase the Project’s construction emissions as compared to the use of fixed-tilt panels.36 This is because trackers would likely require a concrete batch plant for concrete to be mixed onsite during Project construction.37 The IS/MND fails to analyze the expected emissions for each of the engineering proposals, or propose mitigation to reduce impacts to a less than significant level. Tracker systems and fixed-tilt panels also require different amounts of earthwork and grading activities.38 As described in these comments, grading and excavation may result in potentially significant impacts on public health by exposing workers to C. immitis spores and residual pesticides in the Project soils. The IS/MND fails to address the earthwork activities associated with the Applicant’s two engineering options. Finally, the IS/MND fails to identify and analyze the relative water needs of the two possible construction scenarios and the degree to which the Project can feasibly reduce its construction water demand if, for example, steel piles are used instead of concrete.39 In short, the IS/MND fails to comply with CEQA’s requirement that the lead agency must identify the proposed Project in order to then provide a reasoned analysis of the Project’s effects.

See, e. g., County of Los Angeles, Draft Environmental Impact Report for the AV Solar Ranch One Project, June 2010, p. 4-8, available at http://planning.lacounty.gov/assets/upl/case/project_r200902239_deir.pdf (Attachment 4) (“AV Solar Ranch DEIR”). 33 Id.; see also Operational Statement, p. 28. 34 See AV Solar Ranch DEIR, Appendix I, pp. 3-3-3-4 (Attachment 4). 35 Id. at pp. 2-83, 5.18-8, 5.18-10-12, 5.8-22 (Attachment 4). 36 See id. at p. 5.6-18-19 (Attachment 4 ). 37 See AV Solar Ranch DEIR, p. 4-27 (Attachment 4). 38 See id. at pp. 4-26-27 (Attachment 4). 39 See id. at p. 4-14, p. 4-25 compare with id. at p. 4-26 (Attachment 4). 32

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Derek Chambers May 7, 2012 Page 10 IV.

THE IS/MND FAILS TO DOCUMENT OR DESCRIBE THE ENVIRONMENTAL SETTING

An Initial Study must include a description of the project’s environmental setting.40 The description of the environmental setting constitutes the baseline physical conditions by which a lead agency may assess the significance of a project’s impacts.41 As a general matter, the IS/MND must also “disclose the data or evidence upon which person(s) conducting the study relied. Mere conclusions simply provide no vehicle for judicial review.”42 The IS/MND is inadequate because the baseline information it provides is inaccurate and insufficient. The County’s record is similarly devoid of information regarding baseline conditions. A.

The IS/MND Fails to Describe Baseline Agricultural Resources Conditions at the Project Site

The IS/MND states that “[s]ince 2004, the site has been fallow or cultivated in winter grains.”43 The IS/MND further provides that no surface water supply allocation is available from Westlands Water District (“WWD”) for the Project parcel.44 The County’s description of baseline conditions at the Project site is misleading and is contradicted by the record. According to information provided by the Applicant, the Project parcel was last farmed in 2011 when the parcel was cultivated for row crops and garlic.45 In that same year, the Project parcel was irrigated by water supplied by WWD.46 The IS/MND also fails to disclose that unlike many parcels retired by WWD from agricultural production pursuant to federal and state settlement agreements, the Project parcel is not subject to restrictions on irrigation and may be used for agricultural production. Finally, the IS/MND fails to disclose that due to the high quality of the soil resources at the Project site, among other factors, the Project parcel is identified as “Farmland of Statewide Importance” by the Department of Conservation.47 These informational deficiencies in the IS/MND render the CEQA Guidelines, § 15063 subd. (d)(2). CEQA Guidelines, § 15125, subd. (a). 42 Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171. 43 IS/MND, p.3. 44 Id. 45 Applicant’s Supplemental Information, p. 1. 46 Ibid. 47 Id. 40 41

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Derek Chambers May 7, 2012 Page 11 IS/MND inadequate under CEQA because they preclude decisionmakers and the public from evaluating the Project’s impacts on agricultural resources. The County is required to disclose existing agricultural conditions in an EIR. B.

The County Lacks Baseline Data to Assess Project Impacts on Agricultural Resources

The IS/MND must “disclose the data or evidence upon which person(s) conducting the study relied. Mere conclusions simply provide no vehicle for judicial review.”48 The IS/MND does not cite to any substantial evidence regarding the baseline conditions for agricultural resources at the Project site and its vicinity. The entirety of the County’s analysis appears to be based on the minimal information provided by the Applicant. This dearth of information precludes the possibility of defensible impact analysis. CEQA places the burden of environmental investigation on the government rather than the public. Accordingly, a lead agency may not hide behind its failure to completely and accurately provide a description of the project and its impacts.49 To the contrary, “deficiencies in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.”50 In this case, the IS/MND fails to identify the baseline agricultural operations at the Project site and in the Project vicinity, or grapple with the fact that Fresno County has experienced a dramatic loss of agricultural land in the last ten years. What the County has failed to consider is that Western Fresno County has experienced a very large loss of farmland in the last several years, in large part due to the permanent retirement of large swaths of agricultural land. Between 2004 and 2006 alone, over 9,000 acres of Prime Farmland and over 5,000 acres of Farmland of Statewide Importance in Fresno County lost those classifications.51 In the WWD, 44,100 acres has either been permanently retired under legal settlements or a federal land retirement program.52 Several years ago, WWD also Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171. 49 Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311; see also Laurel Heights Improvement Association v. Regents of the University of California (1988) 47 Cal.3d 376. 50 Ibid. 51 Land Use Conversion Table for Fresno County, 2004-2006 (Attachment 5). 52 U.S. Bureau of Reclamation, Draft Environmental Impact Statement for the San Luis Unit Feature Reevaluation, pp. 2-5 and 2-14 (2005) (Attachment 6), full document available at: (http://www.usbr.gov/mp/nepa/nepa_projdetails.cfm?Project_ID=61); see also Initial Study 48

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Derek Chambers May 7, 2012 Page 12 annexed 10,000 acres of irrigated land in the Broadview Water District for land retirement, which is several miles from the Project site.53 In 2007, the U.S. Bureau of Reclamation finalized its decision to pursue retirement of 194,000 acres of agricultural land in the San Luis Unit of the Central Valley Project, which includes the acreage mentioned above as well as other acreage in western Fresno County.54 A reasonable estimate of agricultural land retirement in the area surrounding the Project could exceed 200,000 acres.55 In addition, Pacific Gas & Electric Company has unilaterally removed hundreds of acres of farmland from Williamson Act protection in western Fresno County in order to construct new solar facilities.56 The IS/MND also fails to acknowledge the agricultural uses immediately surrounding the Project site. This deficiency precludes an analysis of the Project’s impacts on agricultural resources. According to information submitted by the Applicant, the Project abuts agricultural farmland to the north, south, east, and west.57 According to the Applicant, much of the property in the area is owned by WWD and is currently being dry farmed.58 The IS/MND does not address current conditions at the Project site and its vicinity. The gaps in the County’s analysis support the inference that the Project may result in a potentially significant impact to agricultural resources and surrounding farms. The County must prepare a revised CEQA document which adequately describes the environmental setting with respect to agricultural resources. Absent this information, the significance of the Project’s impacts on agricultural resources cannot be assessed. C.

The IS/MND Fails To Include Baseline Data With Respect To Air Quality

The IS/MND simply does not contain a description of the environmental setting with respect to air quality resources.59 This defect renders the IS/MND Application for CUP No. 3329 (Attachment 8), “Operational Statement,” p. 3 (nearby solar project proposed on 489 acres within Westland Water District’s land retirement program). 53 U.S. Bureau of Reclamation, San Luis Drainage Feature Re-evaluation Feasibility Report, pp. iii, fn. 1, and x (2008) (Attachment 7), full document available at: http://www.usbr.gov/mp/sccao/sld/docs/sldfr_report/slfr_3-08_v02.pdf. 54 U.S. Bureau of Reclamation, Record of Decision for San Luis Drainage Feature Re-evaluation (2007), p. 5. 55 See “Why Land Retirement Makes Sense for Westlands Water District” (Attachment 9). 56 Fresno Bee, PG&E solar projects concern Fresno County Leaders, November 12, 2011 (Attachment 10). 57 Applicant’s Air Quality Study, January 11, 2012, p. 17. 58 Ibid. 59 See IS/MND, p. 6.

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Derek Chambers May 7, 2012 Page 13 inadequate under CEQA.60 The Project is located in the San Joaquin Valley Air Basin, which is designated in “serious nonattainment” of the federal standard for coarse particulate matter (“PM10”). As the Applicant’s air impacts analysis acknowledges, due to the severely degraded air quality conditions in the Project vicinity, “any addition to the PM10 problem could be significant.”61 The San Joaquin Valley Air Basin is also designated in nonattainment of the federal annual and 24-hour standards for fine particulate matter (PM2.5).62 “Epidemiological studies have shown statistically significant correlations between elevated PM2.5 levels and premature mortality.”63 “Other important health effects associated with PM2.5 exposure include aggravation of respiratory and cardiovascular disease . . . changes in lung function and increased respiratory symptoms, as well as new evidence for more subtle indicators of cardiovascular health.”64 The San Joaquin Valley Air Basin is also designated in extreme non-attainment for the federal and state ozone standards. The IS/MND fails to provide this highly relevant information regarding the ambient conditions in the Project conditions. Absent this basic information decisionmakers and the public cannot evaluate the Project in its environmental context. D.

The County Lacks Baseline Data to Assess Project Impacts on Biological Resources

The IS/MND must “disclose the data or evidence upon which person(s) conducting the study relied. Mere conclusions simply provide no vehicle for judicial review.”65 As described by Mr. Cashen, the County lacks substantial evidence on which to base an impact analyses for biological resources because the County has not required the Applicant to conduct surveys for special status species, and the surveys that were conducted are not scientifically sound. In particular, the Applicant’s report and habitat assessment lacks any discussion of the burrowing owl, including whether the biologist searched for owls, their sign, or burrows that could be occupied by the species.66 Moreover, as the survey report/habitat See CEQA Guidelines, § 15063 subd. (d)(2). Applicant’s Air Quality Study, January 11, 2012, p. 16 (emphasis added). 62 Environmental Protection Agency, Approval and Promulgation of Implementation Plans; California; 2008 San Joaquin Valley PM2.5 Plan and 2007 State Strategy, 76 Fed. Reg. 41,338, July 13, 2011 (Attachment 11). 63 Id. at 41,339. 64 Ibid. 65 Citizens Association for Sensible Development of Bishop Area v. County of Inyo (1985) 172 Cal.App.3d 151, 171. 66 Scott Cashen Comments, p.3. 60 61

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Derek Chambers May 7, 2012 Page 14 assessment acknowledges, the field survey that was conducted for the Project does not constitute a California Department of Fish and Game (DFG) and/or U.S. Fish and Wildlife Service (“USFWS”) protocol-level survey for any specific species.67 Similarly, protocol surveys for Swainson’s hawk nest sites within 0.5-mile of the Project site have not been conducted.68 In addition, the IS/MND does not provide any information on the nest sites known to occur within 10 miles of the Project site.69 Lastly, the IS/MND does not provide survey results or other data relevant to the San Joaquin kit fox.70 Absent baseline data regarding special status species use of the site, the County cannot conclude that the Project’s impacts to these species have been reduced to a less than significant level. E.

The IS/MND Fails to Describe Baseline Conditions Related to Hazards and the Potential Occurrence of Coccidioides immitis at the Project Site

C. immitis is a soil fungus native to the San Joaquin Valley which causes Coccidiodomycosis, commonly known as “Valley Fever.”71 Valley Fever is typically transmitted by inhalation of airborne spores of C. immitis, which grow in soil during the wet season.72 Infection occurs in endemic areas and is most commonly acquired in the summer or the late fall during outdoor activities.73 Valley Fever is endemic in San Joaquin Valley and occurs both among residents and visitors to the Valley.74 C. immitis spores are spread through disturbed dust particles or soil disturbance, such as excavation and grading activities.75 In most cases, the primary infection is in the lungs.76 In 35-40% of cases, infection leads to mild influenza 1 to 4 weeks after exposure, although some persons develop severe pneumonia.77 If left untreated, in 1% if cases Valley Fever can spread beyond the lungs and can be

Ibid. Id. at pp. 3-4. 69 Ibid. 70 Ibid. 71 Duane R Hospenthal, MD, PhD et al., Coccidioidomycosis, Dec. 8, 2011 (Attachment 12). 72 Fresno County Department of Public Health, Public Health Perspective, Spring/Summer 2011 (Attachment 13). 73 Hospehtnal. 74 Ibid. 75 Ibid.; Fresno County Department of Public Health, Public Health Perspective, Spring/Summer 2011, p. 3. 76 Hospenthal. 77 Ibid.; Fresno County Department of Public Health, Public Health Perspective, Spring/Summer 2011, p. 3. 67 68

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Derek Chambers May 7, 2012 Page 15 fatal.78 People at greatest risk for contact include farmers and construction workers.79 The Fresno County Department of Public Health has collected and evaluated Valley Fever statistics since 2004. In the years 2004-2010, the County’s data indicate an increase in numbers of cases as well as in incidence rates of Valley Fever in Fresno County. In 2006, a peak occurred with 83 cases per 100,000 persons.80 The IS/MND fails to disclose that C. immitis is endemic in Fresno County and may occur at the Project site. This informational deficiency renders the IS/MND inadequate under CEQA. “A prejudicial abuse of discretion occurs if the failure to include relevant information precludes informed decisionmaking and informed public participation, thereby thwarting the statutory goals of the EIR process.”81 The County’s failure to identify the potential presence of C. immitis on the Project site and Valley Fever as a regional public health concern in the IS/MND precludes decisionmakers and the public from considering the Project in its environmental context. F.

The IS/MND Does Not Describe Baseline Conditions Related to Hazards and Prior Pesticide Use at the Project Site

The IS/MND fails to provide an adequate disclosure of the environmental conditions that may pose hazards to workers on the Project site and in the vicinity. Mr. Hagemann reviewed the IS/MND and concluded that it is inadequate in its description of existing conditions and evaluation of potential and likely significant adverse impacts to worker health.82 Specifically, no Phase I Environmental Site Assessment (“ESA”) has been submitted to enable the County to identify hazardous waste issues that may pose a risk to workers or the environment and require further investigation and mitigation. This is despite the fact that the Project site has historically been used for agriculture and may contain pesticides. Because the IS/MND lacks this baseline information, its findings and conclusions regarding hazards and hazardous materials are also not based on substantial evidence.

Ibid. Ibid. 80 Fresno County Department of Public Health, Public Health Perspective, Spring/Summer 2011, p. 3. 81 Kings County Farm Bureau v. City of Hanford (1990) 221 Cal.App.3d 692, 712; see also City of Fremont v. San Francisco Bay Area Rapid Transit Dist. (1995) 34 Cal.App.4th 1780, 1790. 82 Hagemann comments, p. 1 (Attachment 3). 78 79

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Derek Chambers May 7, 2012 Page 16 In Mr. Hagemann’s opinion, potential hazards may be present on the Project site and the County must require a Phase I ESA before approving the Project in order to enable an analysis of potentially significant impacts to human health.83 The County must determine if past uses on the Project site resulted in hazards that are actually present. Failure to assess the real conditions on the Project site may result in unanalyzed and unmitigated impacts to worker health and the environment. V.

SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT THAT THE PROJECT MAY RESULT IN SIGNIFICANT UNMITIGATED IMPACTS TO AGRICULTURAL RESOURCES

According to information submitted by the Applicant, the Project site includes approximately 160 acres designated by the Department of Conservation as of Farmland of Statewide Importance.84 Therefore, the Project will remove 160 acres of Farmland of Statewide Importance from agricultural production for a minimum of 40 years. The IS/MND concludes that this impact is significant, but determines that the impact is mitigated to a less-than-significant level because the site lacks a suitable water source for agricultural production and because the use proposed by the Project is temporary.85 The IS/MND’s evaluation of agricultural impacts is deficient for several reasons. First, the County’s conclusion that agricultural production is precluded by lack of a water source is contradicted by the record. According to information submitted by the Applicant, there is no legal barrier to irrigation at the Project site and, in fact, WWD supplied irrigated water to the Project site in 2011.86 Furthermore, the fact that the Applicant proposes to meet the Project’s water demand by digging a well on the Project site dispels any doubt regarding the availability of water.87 Second, the County’s conclusion that restoring the Project parcel to preProject conditions will reduce the Project’s impact on important farmland to a lessthan-significant level is invalid as a matter of law. Under CEQA, impacts that are short-term or temporary in nature may nonetheless be significant.88 It is well settled in CEQA case law that “short term effects may have such significance as to Ibid. pp. 1-2. Supplemental Information p. 2. 85 IS/MND pp. 3-4. 86 Supplemental Information, p. 1. 87 See Operational Statement, p. 12. 88 CEQA Guidelines, § 15126.2, subd. (a). 83 84

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Derek Chambers May 7, 2012 Page 17 require an EIR.”89 An agency may not, therefore, minimize the significance of an impact just because it is “temporary.” The IS/MND prepared for the Project fails to analyze and mitigate the Project’s impacts on agricultural resources over the next 40 years, and improperly minimizes those impacts by labeling them “temporary.” Substantial evidence in light of the whole record shows that the Project may have a significant impact on agricultural resources. The threat that farmland conversion poses to the viability of continued agriculture in California cannot be overstated. In only a century and a half since the Gold Rush, almost 700,000 acres in the Central Valley alone have been developed for urban use. Almost 100,000 acres of this land was paved over in the 1990s alone. Within just the next generation, close to a million more acres of farmland could vanish, putting additional pressure on the ability of the region’s farmers to continue producing food for the State, the nation and the world.90 As discussed above, there has been a rapid loss of farmland in western Fresno County in recent years. The Legislature has repeatedly held that conversion of agricultural land is a significant concern and that the preservation of agricultural land is a significant goal of the State.91 The Legislature has further stated that CEQA shall play an important role in the preservation of agricultural lands.92 The State Department of Conservation developed a California Agricultural Land Evaluation and Site Assessment (“LESA”) Model to provide lead agencies with a methodology to ensure that significant effects on the environment of agricultural land conversions are quantitatively and consistently considered in the environmental review process.93 The LESA Model’s evaluation factors include two land evaluation measures regarding soil resource quality and four site assessment factors, including a project’s size, water resource availability, surrounding

No Oil, Inc. v. City of Los Angeles, supra, 13 Cal.3d at 85; see also Running Fence Corporation v. Superior Court of Sonoma (1975) 51 Cal.App.3d 400, 424. 90 American Farmland Trust, The Future is Now: Central Valley Farmland at the Tipping Point? (2006) (Attachment 14 ). 91 Gov. Code, § 51220 (Williamson Act findings that agricultural preservation is valuable and necessary); Civ. Code, § 815 (legislative declaration that preservation of agricultural lands “is among the most important environmental assets of California”); Pub. Resources Code, § 10200, et seq. (California Farmland Conservancy Program Act, promoting the establishment of agricultural easements as a means to preserve agricultural land). 92 This language was used as the finding behind amendments to Public Resources Code sections 21060.1, 21061.2 and 21095 in 1993 (Stats. 1993, ch. 812, §1, subd. (d)). 93 Pub. Resources Code, § 21095. 89

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Derek Chambers May 7, 2012 Page 18 agricultural lands, and surrounding protected resource lands.94 The project score then becomes the basis for making a determination of a project’s potential significance. The IS/MND does not calculate or rely upon a LESA score, or any other objective modeling or analysis, to determine that the impact to agricultural resources is less-than-significant. This deficiency in the record may actually enlarge the scope of fair argument by lending a logical plausibility to a wider range of inferences.95 Because the Project would remove 160 acres of land designated as Farmland of Statewide Importance from agricultural production for a minimum of 40 years, a fair argument exists that the Project may cause significant, unmitigated, impacts to agricultural resources. As detailed in these comments, the finding in the IS/MND that the Project will have no significant effect on agricultural resources is inadequate because there is no evidence to support it.96 The County is not allowed to hide behind its own failure to gather relevant data. Under CEQA, the County must prepare an EIR for the proposed Project. In the EIR, the County must propose feasible mitigation measures that will reduce impacts to a less than significant level. Consistent with standard practices, the IS/MND must require the purchase of enforceable agricultural conservation easements at least at a 1:1 ratio for all important farmland that the Project removes from possible agricultural production.97 Numerous statutory schemes underscore the importance of preserving agricultural lands and point to conservation easements as an appropriate method to mitigate impacts to agriculture.98 To fully mitigate impacts on agricultural lands, such mitigation must See DOC’s LESA Model Instruction Manual (Attachment 15). Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d 296, 311. 96 Ibid. 97 Where land is being taken out of agricultural development, the purchase of conservation easements serve only as partial compensation because they do not create new replacement agricultural land, but rather only mitigate the development pressures and cumulative impacts on nearby agricultural land. In such cases, some jurisdictions have required the purchase of conservation easements at a greater ratio than 1:1. The City of Davis Municipal Code, for example, requires that “Two times as many acres of agricultural land shall be protected as was changed to a nonagricultural use in order to mitigate the loss of agricultural land” or “payment of a fee based upon a two-to-one replacement for a farmland conservation easement.” (City of Davis Municipal Code § 40A.03.030 (Attachment 16). 98 See, e.g., California Land Conservation Act of 1965 (“Williamson Act”), Gov. Code 51200 et seq.; California Farmland Conservancy Program Act, Pub. Resources Code, § 10201 et seq.; Farmland Protection Policy Act, 7 U.S.C., § 4201, et seq.; see also Gov. Code, § 815 et seq. (encouraging preservation of agricultural land through conservation easements); San Joaquin County Code, § 994 95

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Derek Chambers May 7, 2012 Page 19 ensure that the conservation easements protect agricultural land of equal or greater quality as the land being converted. The San Joaquin County Agricultural Mitigation ordinance, for example, requires agricultural mitigation land to be of “comparable or better soil quality” than the agricultural land affected by the project.99 The ordinance also requires evidence that the mitigation land has adequate and reliable water supply to support the agricultural use of the land.100 VI.

SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT THAT THE PROJECT MAY RESULT IN SIGNIFICANT UNMITIGATED IMPACTS TO AIR QUALITY

The IS/MND must include “an identification of environmental effects.”101 The IS/MND does not identify the Project’s adverse air quality impacts. As such, the IS/MND is inadequate under CEQA. The IS/MND also fails to propose measures that will reduce the Project’s significant air quality impacts to a less than significant level. Accordingly, CEQA requires the County to evaluate the Project’s impacts on air quality in an EIR. The IS/MND states that the San Joaquin Valley Air Pollution Control District’s comments conclude that the Project’ emissions of criteria pollutants “are expected to be mitigated below the District significance thresholds.”102 The IS/MND identifies the District’s significance thresholds as follows: 10 tons per year for oxides of nitrogen (“NOx”), 10 tons per year for reactive organic gases (“ROG”), and 15 tons per year for PM10.103 These thresholds apply to emissions from Project operations.104 The District has not established quantitative significance thresholds for construction emissions. As explained by the District’s CEQA guidance document, construction emissions can result in significant short-term air quality impacts:

1080 (Attachment17) (requiring 1:1 or greater mitigation ratio for agricultural land impacts); see also Davis Municipal Code, § 40A.03.030 (requiring 2:1 mitigation ratio for conversion of agricultural land). 99 San Joaquin County Code of Ordinances § 9-1080.5, subd. (b) (Attachment 17). 100 Ibid. 101 CEQA Guidelines, §15063, subd. (d). 102 IS/MND, p. 6. 103 Ibid. 104 See San Joaquin Valley Air Pollution Control District, Guide for Assessing and Mitigating Air Quality Impacts, p. 26, available at http://www.valleyair.org/transportation/CEQA%20Rules/GAMAQI%20Jan%202002%20Rev.pdf.

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Derek Chambers May 7, 2012 Page 20 A project’s construction phase produces many types of emissions, but PM-10 is the pollutant of greatest concern. PM-10 emissions can result from a variety of construction activities, including excavation, grading, demolition, vehicle travel on paved and unpaved surfaces, and vehicle exhaust. Construction-related emissions can cause substantial increases in localized concentrations of PM-10, as well as affecting PM10 compliance with ambient air quality standards on a regional basis. Particulate emissions from construction activities can lead to adverse health effects as well as nuisance concerns such as reduced visibility and soiling of exposed surfaces . . . . The use of diesel powered construction equipment produces ozone precursor emissions and combustion related particulate emissions. Large construction projects lasting many months may exceed the District's annual threshold for NOx emissions and could expose area residents to diesel particulate.105 The CEQA Guidelines, Appendix G, establish that impacts on air quality would be significant if a project would violate any ambient air quality standard or substantially contribute to an existing or projected violation of an ambient air quality standard. To determine whether such violations occur, it is common practice for lead agencies to compare project emissions to quantitative significance thresholds developed by local air districts as a screening tool for CEQA review.106 Thresholds of significance for construction emissions are typically expressed on a short-term basis, i.e. daily or hourly basis to adequately capture impacts due to the high variability of emissions during different construction stages.107 Given the lack of short-term quantitative significance thresholds in the District’s CEQA guidance, the Applicant could have conducted ambient air quality dispersion modeling to evaluate whether ambient air quality standards would be violated during any of the construction phases. In the alternative, the Applicant could have used short-term significance thresholds developed by other air districts to screen for significance of criteria pollutant emissions.108 The IS/MND fails to evaluate the Project’s construction emissions. Although the Applicant’s Air Quality San Joaquin Valley Air Pollution Control District, Guide for Assessing and Mitigating Air Quality Impacts, p. 24. 106 James Clark Comments, p. 5 (Attachment 2). 107 Ibid. 108 Several jurisdictions in California have established CEQA significance thresholds for short-term constructions emissions, these include Imperial County, the Sacramento Metropolitan Air Quality Management District, Solano County, among others. See also, James Clark Comments, pp. 7-9. 105

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Derek Chambers May 7, 2012 Page 21 Study addresses the Project’s construction emissions, the Applicant’s analysis similarly obscures the Project’s short-term construction emissions. As detailed in these comments, the Project will result in significant, unmitigated short-term emissions of NOx, PM10, and PM2.5. The County is required under CEQA to evaluate these impacts in an EIR. A.

The Project Will Result in Significant, Unmitigated NOx Emissions

NOx are a precursor of ozone. As shown by Dr. Clark, the Project will result in significant, unmitigated NOx emissions from the use of construction equipment.109 Daily estimates of NOx emissions during the grading and trenching activities (185 lbs/day and 116 lbs/day, respectively) exceeds significance thresholds by up to 100%.110 However, because the San Joaquin Valley Air Basin is in severe nonattainment of the federal ambient ozone standard, any additional emissions of NOx can be deemed significant. By any reasonable measure, the Project’s shortterm NOx emissions will be significant. The IS/MND fails to identify this significant Project impact. As explained by Dr. Clark, the mitigation measures proposed in the IS/MND will not reduce the Project’s significant NOx emissions to a level of insignificance. In particular, the IS/MND concludes that compliance with the District’s regulations will reduce Project NOx emissions to less than significant. The District’s regulations do not detail methods for controlling NOx emissions. Therefore, and as further explained by Dr. Clark, compliance with the District’s regulations will not reduce Project emissions.111 B.

The Project Will Result in Significant, Unmitigated PM10 Emissions

As shown by Dr. Clark, the Applicant’s analysis significantly underestimates the Project’s short-term emissions of PM10. Using the U.S. EPA’s AP-42 emission factor for construction related emissions, Dr. Clark shows that the Project’s construction emissions of PM10 would exceed 122.88 tons.112 As such, short-term emissions of PM10 meet and exceed significance thresholds. James Clark Comments, p. 8. See id. 111 See id. at pp. 9-10. 112 Id. at pp. 8-9. 109 110

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Derek Chambers May 7, 2012 Page 22 The IS/MND concludes that compliance with the District’s regulations will reduce Project PM10 emissions to less than significant. In particular, the IS/MND relies on District’s Rule VIII regulations for control of fugitive dust during grading and construction operations. As explained by Dr. Clark in his comments, Regulation VIII does not actually detail the methods for controlling dust generation during construction operations. As such, compliance with Regulations VIII will not reduce the Project’s significant PM10 emissions to a less than significant level. Feasible mitigation measures that could be used to reduce the Project’s impacts on air quality during the extended construction period include switching to cleaner fuels such as alternative fuels (compressed natural gas, liquefied natural gas, propane, ethanol, and methanol) or alternative diesel fuels (emulsified diesel), and fuel borne-catalysts; replacing, repowering, or rebuilding old equipment; and retrofitting equipment with diesel particulate filters, diesel oxidation catalysts, selective catalytic reduction, lean NOx catalyst technology, and exhaust gas recirculation; all of which have been demonstrated on off-road equipment. Additional methods for controlling the Project’s construction emissions are detailed in Dr. Clark’s comments.113 C.

The Project May Result in Significant, Unmitigated PM2.5 Emissions

During construction, a large number of diesel-powered equipment would operate on site and numerous diesel-powered trucks would deliver supplies. PM2.5 emissions result from the combustion of fossil fuels, including diesel-powered equipment.114 The health impacts of PM2.5 are different and substantially more severe than those from PM10. Overwhelming scientific evidence shows that longterm exposure to fine particulate air pollution contributes to pulmonary and systemic oxidative stress, inflammation, progression of atherosclerosis, and risk of ischemic heart disease and death.115 Another recent study found that each 10-μg/m3 increase in PM2.5 air pollution was associated with an approximately six percent increase in cardiopulmonary mortality and an eight percent increase in

Id. at pp. 10-11. Bay Area Air Quality Management District, Particulate Matter Overview, http://www.baaqmd.gov/Divisions/Planning-and-Research/Particulate-Matter.aspx 115 Pope C. A. III, Ezzati M., and Dockery D. W., Fine-Particulate Air Pollution and Life Expectancy in the United States, The New England Journal of Medicine, January 22, 2009, vol. 360, pp. 376-386. 113 114

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Derek Chambers May 7, 2012 Page 23 lung cancer mortality.116 The U.S. EPA concluded with respect to short-term exposure studies that “epidemiological evidence was found to support likely causal associations between PM2.5 and both mortality and morbidity from cardiovascular and respiratory diseases.”117 The IS/MND does not address the potential health risks associated with exhaust emissions of diesel particulate matter from these sources. As described by Dr. Clark, the Project’s PM2.5 emissions may be significant.118 The County must prepare an EIR to evaluate the health risk from PM2.5 during Project construction activities. VII.

SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARGUMENT THAT THE PROJECT MAY RESULT IN SIGNIFICANT UNMITIGATED PUBLIC HEALTH IMPACTS

The Project may result in significant adverse public health impacts through worker exposure to C. immitis spores during Project construction and decommissioning activities. The Project involves substantial earthmoving and trenching activities. The Applicant proposes to install 90,720 PV panels at the Project site, each requiring a 12 to 15 inch-diameter pier to be drilled three to seven feet below ground for foundation.119 Earth disturbing activities during Project construction will also include site clearing, site grading, and trenching.120 Once the Project is decommissioned, the Applicant proposes to remove all below-ground equipment and structures, remove and demolish foundations, and grade the Project site to return it to the its original state.121 Reclamation activities are expected to continue for approximately six months.122 As described by Dr. Clark, propagation and air entrainment of C. immitus occurs on soils that are not irrigated during dry seasons, including natural environments, undeveloped land, and grazing areas.123 The IS/MND fails to A.A. Pope III, R.T. Burnett, M.J. Thun, E.E. Calle, D. Krewski, K. Ito, G.D. Thurston, Lung Cancer, Cardiopulmonary Mortality, and Long-term Exposure to Fine Particulate Air Pollution, Journal of the American Medical Association, v. 287, no. 9, pp. 1132-1141, 2002. 117 U.S. Environmental Protection Agency, National Center for Environmental Assessment, Office of Research and Development, Provisional Assessment of Recent Studies on Health Effects of Particulate Matter Exposure, EPA/600/R-06/063, July 2006; http://www.epa.gov/oar/particlepollution/pdfs/ord_report_20060720.pdf. 118 James Clark Comments, pp. 11-12. 119 See IS/MND, p. 1; cf. Operational Statement, p. 28. 120 Applicant’s Air Quality Study, p. 14. 121 Supplemental Information, p.2. 122 Ibid. 123 James Clark Comments, p. 19. 116

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Derek Chambers May 7, 2012 Page 24 analyze the potential for worker exposure to C. immitus during Project construction and reclamation activities. Substantial evidence shows that exposure to C. immitus, absent appropriate mitigation, may result in significant adverse public health impacts given the likely occurrence of C. immitus spores at the Project site, combined with the Applicant’s proposal to commence earthmoving activities during the dry season.124 CEQA requires the County to evaluate this impact and propose all feasible mitigation measures necessary to reduce this impact to a less than significant level in an EIR. VIII. SUBSTANTIAL EVIDENCE SUPPORTS A FAIR ARUGMENT THAT THE PROJECT WILL RESULT IN SIGNIFICANT, UNMITGATED IMPACTS TO BIOLOGICAL RESOURCES The IS/MND states that that, according to DFG, several sensitive species under the California and the Federal Endangered Species Act may occur on the Project site.125 The IS/MND further provides that, according to DFG, absent implementation of mitigation and avoidance measures, the Project may significantly impact the Swainson’s hawk, burrowing owl, San Joaquin kit fox and nesting birds.126 As discussed in the comments of Mr. Cashen, the proposed mitigation measures are inadequate and will not reduce the Project’s impacts to a less than significant level. Substantial evidence supports a fair argument that the Project will result in significant, unmitigated impacts to special status species, which must be evaluated in an EIR. A.

The Project Will Result in Potentially Significant, Unmitigated Impacts to the Burrowing Owl

The USFWS listed the burrowing owl as a Bird of Conservation Concern and DFG listed it as a Species of Special Concern. The Project will result in potentially significant impacts to the burrowing owl, none of which are analyzed or mitigated in the IS/MND. First, as described in the comments of Mr. Cashen, the Applicant proposes to evict burrowing owls from the Project site.127 The eviction of burrowing owls is a potentially significant impact and is not analyzed in the IS/MND.128

See James Clark Comments, p. 19. IS/MND, p. 7. 126 Ibid. 127 Scott Cashen Comments, p. 5. 128 Ibid. 124 125

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Derek Chambers May 7, 2012 Page 25 Second, the IS/MND provides that the Applicant will be applying pesticides and rodenticides to the Project site during Project operation.129 As described by Mr. Cashen, secondary poisoning from rodenticides is considered a serious threat to the burrowing owl.130 In addition to poisoning of non-target organisms, rodenticides eliminate prey resources for predators, such as the burrowing owl. Rodenticides also eliminate the host burrowers (e.g., ground squirrels) that burrowing owls depend on for burrow creation. As a result, use of rodenticides at the Project site will degrade the existing habitat, and it will conflict with DFG’s conservation goal to: “[m]inimize or prevent unnatural causes of burrowing owl population declines (e.g., nest burrow destruction, chemical control of rodent hosts and prey).”131 In the expert opinion of Mr. Cashen, eviction of burrowing owl from the Project site and the use of pesticides and rodenticides by the Applicant will result in potentially significant, unmitigated impacts to the burrowing owl.132 B.

The Project Will Result in Potentially Significant, Unmitigated Impacts to the San Joaquin Kit Fox By Obstructing Kit Fox Movement Corridors

The San Joaquin kit fox is listed as an endangered species under the federal Endangered Species Act and threatened under the California Endangered Species Act. In the expert opinion of Mr. Cashen, the Project may significantly impact the kit fox by obstructing kit fox movement corridors. As further described by Mr. Cashen, movement corridors for kit foxes are essential to preventing local extinctions and allowing recolonization of lands where foxes are extirpated or habitat has been restored.133 Kit fox typically avoid habitats with complex structure (such as will be present on the Project site), because these habitats inhibit detection of predators.134 It is Mr. Cashen’s expert opinion that kit foxes may view the solar arrays as a barrier or threat, suggesting that the Project may inhibit or prevent kit fox movement.135 Given the uncertainties associated with the Project’s ability to maintain kit fox movement, described more fully in the comments of Mr. Cashen, the County cannot conclude that Project impacts to the San Joaquin kit fox have been mitigated Id. at p. 8. Ibid. 131 Ibid. 132 Id. at p. 9. 133 Id. at p. 6. 134 Ibid. 135 Ibid. 129 130

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Derek Chambers May 7, 2012 Page 26 to a less than significant level.136 An EIR should be prepared to analyze and disclose the regional and statewide significance of Project impacts on San Joaquin kit fox movement and whether the Project conflicts with kit fox recovery efforts. C.

The Project Will Result in Potentially Significant, Unmitigated Impacts to the San Joaquin Kit Fox Due to Rodenticide Use

As with the burrowing owl, secondary poisoning from rodenticides is considered a serious threat to the San Joaquin kit fox.137 The USFWS concluded that select pesticides are likely to jeopardize the continued existence of the San Joaquin kit fox, and that current restrictions on anticoagulants are insufficient to prevent an acceptable level of adverse effects to non-target organisms.138 In the opinion of Mr. Cashen, the Project’s use of rodenticides may have an unmitigated, significant impact on the kit fox.139 D.

The Project Will Result in Potentially Significant, Unmitigated Impacts to the Swainson’s Hawk

The Swainson’s hawk is listed as a threatened species under the California Endangered Species Act. As with the burrowing owl and the San Joaquin kit fox, Mr. Cashen concludes that the Applicant’s proposed use of rodenticides will result in potentially significant impacts on the Swainson’s hawk.140 E.

The Project Will Result in Potentially Significant, Unmitigated Impacts to Nesting Birds

As described by Mr. Cashen, the Project site and surrounding habitat provide habitat for nesting birds.141 Most nesting bird species are protected by the Migratory Bird Treaty Act (“MBTA”), and in some cases the State and federal government.142 The IS/MND does not provide any mitigation for impacts to nesting

See ibid. Id. at p. 8. 138 Id. at p. 9. 139 Ibid. 140 Id. at p. 8. 141 Id. at p. 15. 142 Ibid. 136 137

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Derek Chambers May 7, 2012 Page 27 birds. As a result, it is the expert opinion of Mr. Cashen, that the Project may cause significant, unmitigated impacts to sensitive avian resources.143 F.

The Project Will Result in Potentially Significant, Unmitigated Impacts to Birds

As described by Mr. Cashen, the Project is located within an avian flyway.144 Further, as described by Mr. Cashen, because the Project includes the installation of approximately 90,000 PV arrays, the Project may result in significant bird fatalities through collision.145 Mr. Cashen proposed feasible measures to mitigate this hazard in his comments.146 For example, the California Energy Commission has required all recently licensed solar projects to conduct a Bird Monitoring Study to monitor the death and injury of birds from collisions with solar facility features, among other measures.147 The County should propose similar measures to mitigate bird fatality as a result of the Project in an EIR. IX.

THE IS/MND DOES NOT SUFFICIENTLY DISCLOSE, ANALYZE, AND MITIGATE POTENTIAL HAZARDS

The IS/MND states that “impact of pesticides on construction and operational crew from prior farming operations on the property is not a concern.”148 This conclusion is invalid under CEQA because it is unsupported. Here, the County has no substantial evidence to conclude that prior farming activities will not pose a risk to workers because the County has not required the Applicant to conduct and submit an assessment of potential hazards through a Phase I Environmental Site Assessment (“ESA”).149 Substantial evidence supports the finding that the Project may result in a potential hazard to workers through exposure to pesticides that may be present in Project site soils through dermal contact with the soil and inhalation of dust. As described by hydrologist and hazards expert, Matthew Hagemann, cultivation of Id. Id. at p. 16. 145 Ibid. 146 Ibid. 147 California Energy Commission. 2010 Jul. Supplemental Staff Assessment for the Calico Solar Project. p. C.2-230 148 IS/MND, p. 15. 149 See Email from Derek Chambers to Janet Laurain, regarding Public Records Act Response re: Gestamp Asetym Solar Project, May 2, 2012, (Attachment18). 143 144

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Derek Chambers May 7, 2012 Page 28 row crops at the Project site may have involved the use of organochlorine pesticides, including Dieldrin, 4,4’-DDE, and 4,4’-DDT.150 The U.S. EPA determined that organochlorine pesticides, such as Dieldrin, 4,4’-DDE, and 4,4’-DDT, are probable human carcinogens. DDT is also known to affect the nervous system.151 As described by Mr. Hagemann, agricultural lands in the Project vicinity have been investigated for the presence of these and other pesticides, which may persist in soil for hundreds of years despite being banned in the 1970s.152 During Project construction and decommissioning, activities that would disturb the ground surface include: grading, placement of fill, and soil compaction for placement of photovoltaic arrays, foundations and footings, and construction of access roads and drainage features, as well as the removal and demolition of these Project features. According to Mr. Hagemann, these activities have the potential to expose construction workers to pesticides that may be present in Project site soils. In the opinion of Mr. Hagemann, worker exposure to residual pesticide during Project construction and decommissioning activities is a potentially significant health risk.153 The County must prepare an EIR to evaluate this potentially significant hazard. X.

CONCLUSION

The IS/MND is inadequate as an environmental document because it fails to include a complete and accurate Project description, set forth the existing environmental setting or “baseline” for agricultural and air quality resources and potential hazards at the Project site, and identify the Project’s potentially significant impacts on air quality, biological resources, and public health. Here, the County also lacks substantial evidence to assess Project impacts because the County has not required the Applicant to provide key data on baseline conditions with respect to agricultural resources, biological resources and potential hazards at the Project site. Due to these significant deficiencies in the IS/MND, the County cannot conclude that the Project’s potentially significant impacts have been mitigated to a less than significant level. The CEQA Guidelines require that an EIR be prepared if there is substantial evidence that any aspect of a project, either individually or cumulatively, may cause Matt Hagemann Comments, p. 1. Id. 152 Id. 153 Ibid. at pp. 1-2. 150 151

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Derek Chambers May 7,2012 P age 29

a significant effect on the environment, regardless of whether the overall effect of the projectis adverseor beneficial.l5aAs discussedin detail above,there is substantiai evidencethat the Project would result in significant adverse impacts that were not identified in the IS/MND and that are not adequately mitigated, including: the removal of 160 acresof Farmland of StatewideImportance from agricultural production for a minimum of 40 years; significant emissions of criteria pollutants during Project construction and decommissioning;habitat modification and mortality of special status speciesthrough exposure to various Project features; and worker exposureto C. immitis and residual pesticidesthrough contactwith potentially contaminated soils at the Project site. We urge the County to fulfiil its responsibilities under CEQA bV withdrawing the IS,MND and preparing an EIR that addressesthe issuesraised in this commentletter. In this way the County and the public can ensure that the Project's significant environmental impacts are micigatedLoa less than significant level.

Klebaner

EK:vs Attach.(1-18)

r54CEQA Guidelinesg 15063(b)(1).

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ATTACHMENT 1

May 7, 2012 Ms. Elizabeth Klebaner Adams Broadwell Joseph & Cardozo 601 Gateway Boulevard, Suite 1000 South San Francisco, CA 94080 Subject: Comments on the Mitigated Negative Declaration Prepared for the GIFFEN 1 Solar Photovoltaic Power Plant Dear Ms. Klebaner: This letter contains my comments on the Initial Study/Mitigated Negative Declaration (“IS/MND”) prepared for the GIFFEN 1 Solar Photovoltaic Power Plant Project (“Project”). Gestamp Asetym Solar North America, Inc. (hereafter referred to as the “Applicant”) has proposed the construction, operation, maintenance, and decommissioning of a 18 MW photovoltaic (“PV”) solar project on approximately 160 acres of land in Fresno County. The Project involves the installation of 90,720 nonreflective PV panels, a substation, an operations and maintenance building, a 30-foot high electrical utility tower, 35 electrical utility poles, 18 inverter buildings, a 6-foot high security fence, and other Project infrastructure. I am an environmental biologist with 20 years of professional experience in wildlife ecology, forestry, and natural resource management. To date, I have served as a biological resources expert for over 40 projects, the majority of which have been renewable energy facilities. My experience in this regard includes testifying before the California Energy Commission and assisting various clients with evaluations of biological resource issues. My educational background includes a B.S. in Resource Management from the University of California at Berkeley, and a M.S. in Wildlife and Fisheries Science from the Pennsylvania State University. I have gained particular knowledge of the biological resource issues associated with the Project through my work on numerous other projects in the region. My comments are based on my review of the environmental documents prepared for the Project, a review of scientific literature pertaining to biological resources known to occur in the Project area, consultations with numerous biological resource experts, and the knowledge and experience I have acquired during more than 20 years of working in the field of natural resources management.

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THE PROJECT DESCRIPTION IN THE IS/MND IS INCOMPLETE The IS/MND Fails to Provide a Description of the Project’s Water System and Water Treatment Facility The Project includes a reverse osmosis water treatment plant to provide de-ionized water for PV panel washing.1 The water treatment plant would discharge up to145,000 gallons of wastewater per year.2 The Applicant proposes to discharge the wastewater on “any required landscaped areas along the perimeter fence.”3 The process of reverse osmosis removes salt and other substances (e.g., chemical and biological agents) from water by passing it through a semi-permeable membrane. Because the water treatment facility would use “raw” water, the facility’s discharge water will likely be highly saline.4 Because the IS/MND does not provide a plan for removing salt from the discharge water, the salt will inevitably enter ground and surface water supplies. The Project site is within the San Luis Unity of the Central Valley Project. A considerable amount of land within the San Luis Unit has high concentrations of soil salts, poor soil drainage, and shallow water tables with high ground water selenium concentrations.5 These characteristics led to environmental issues associated with the disposal of drainage water, including embryonic deformities of aquatic birds. The Bureau of Reclamation evaluated various alternative strategies for disposing of the drainage water and it selected a preferred alternative that included the retirement of drainage-impaired agricultural lands. Discharge from the Project’s water treatment facility will contribute high concentrations of selenium and other salts into water systems, which then may become toxic to wildlife.6 The IS/MND Lacks Fundamental Information on the Soil Stabilizers that Will Be Used at the Project Site The Applicant intends to use soil stabilizers (also known as binders or dust suppressants) to control erosion at the Project site. Chemical properties, particularly toxic contaminants, can vary significantly depending on the type of soil stabilizer (and manufacturer).7 Because the IS/MND does not identify the type of stabilizer(s) that will 1

Operational Statement, p. 12. Ibid, pp. 12, 31. 3 Ibid, p. 31. 4 MND, Initial Study, Environmental Checklist, p. 2-26. 5 Cypher BL, SE Phillips, PA Kelly. 2007. Habitat suitability and potential corridors for San Joaquin kit fox in the San Luis Unit: Fresno, Kings, and Merced Counties, California. California State University, Stanislaus, Endangered Species Recovery Program. Available at: esrp.csustan.edu/publications. 6 U.S. Bureau of Reclamation. 2007. Record of Decision: San Luis Drainage Feature Re-evaluation. 7 US Environmental Protection Agency. 2004 Mar. Potential Environmental Impacts of Dust Suppressants: Avoiding another Times Beach. In: An Expert Panel Summary, May 30-31, 2002, Las Vegas, Nevada. Available at: http://www.epa.gov/nerlesd1/cmb/pdf/dust.pdf 2

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be used at the Project site, and because each type of stabilizer has different effects on the environment, the environmental impacts associated with use of soil stabilizers at the Project site cannot be properly evaluated. THE IS/MND’S FAILURE TO ESTABLISH EXISTING CONDITIONS PRECLUDES A THOROUGH ASSESSMENT OF PROJECT IMPACTS TO SENSITIVE BIOLOGICAL RESOURCES The IS/MND acknowledges that the Project would have potentially significant impacts on the burrowing owl, Swainson’s hawk, San Joaquin kit fox, and nesting birds.8 The IS/MND fails to establish the baseline for these species. This limits the ability of the public, resource agencies, and decision makers to assess potential impacts and evaluate the appropriateness of the proposed mitigation. Burrowing Owl The U.S. Fish and Wildlife Service (“USFWS”) has listed the burrowing owl as a Bird of Conservation Concern and the California Department of Fish and Game (“CDFG”) has listed it as a Species of Special Concern. Precision Civil Engineering, Inc. conducted a reconnaissance-level field survey of the Project site and subsequently prepared a survey report/habitat assessment for the Project. The survey report/habitat assessment lacks any discussion of the burrowing owl, including whether the biologist searched for owls, their sign, or burrows that could be occupied by the species. Nevertheless, as the survey report/habitat assessment acknowledges, the field survey that was conducted for the Project does not constitute a CDFG and/or USFWS protocol-level survey for any specific species.9 A protocol-level survey is necessary to establish the presence and abundance of burrowing owls on and adjacent to the Project site. The California Burrowing Owl Consortium (“CBOC”) has explicitly stated: There is often inadequate information about the presence of owls on a project site until ground disturbance is imminent. When this occurs there is usually insufficient time to evaluate impacts to owls and their habitat. The absence of standardized field survey methods impairs adequate and consistent impact assessment during regulatory review processes, which in turn reduces the 10 possibility of effective mitigation.

To ensure an adequate impact assessment; develop clear and effective avoidance and minimization measures; and formulate appropriate mitigation measures, the County must require surveys that adhere to the guidelines provided in the CDFG’s 2012 Staff Report 8

IS/MND, p. 7. Precision Civil Engineering, Inc. 2011 Aug 17. Habitat Assessment APN 038-080-24, GIFFEN 1, Cantua Creek, Fresno County, California, p. 6. 10 See p. i In: The California Burrowing Owl Consortium. 1993. Burrowing Owl Survey Protocol and Mitigation Guidelines. Available online at: http://www.dfg.ca.gov/wildlife/species/docs/boconsortium.pdf. [emphasis added]. 9

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on Burrowing Owl Mitigation.11 It is not possible to effectively assess potential impacts of the Project on burrowing owls until surveys that adhere to CDFG guidelines have been conducted. Swainson’s Hawk The Swainson’s hawk is listed as a threatened species under the California Endangered Species Act. Protocol surveys for Swainson’s hawk nest sites within 0.5-mile of the Project site have not been conducted. In addition, the IS/MND does not provide any information on the nest sites known to occur within 10 miles of the Project site. These informational gaps make it impossible to understand the Project’s environmental setting, potential impacts, or evaluate the Applicant’s ability to fully comply with the mitigation requirements promulgated by the CDFG. To meet CDFG’s recommendations for mitigation and protection of Swainson’s hawks, CDFG recommends: (a) protocol surveys be conducted within 0.5-mile radius around all Project activities, and (b) evaluation of all active, previously documented nest sites within 10 miles of the Project site.12 The County must require the Applicant to conduct surveys in accordance with CDFG’s recommendations, and disclose that baseline information in a revised CEQA document. San Joaquin Kit Fox The San Joaquin kit fox is listed as an endangered species under the federal Endangered Species Act and threatened under the California Endangered Species Act. The IS/MND does not provide survey results or other data relevant to the San Joaquin kit fox. Agricultural lands provide foraging habitat for kit fox and they allow movement between isolated patches of natural lands.13 I concur with the CDFG that at a minimum, a focused search for kit fox dens and other kit fox sign needs to be conducted at the Project site to establish a baseline for impact analysis and to determine the appropriate mitigation measures to avoid take of kit foxes. Mountain Plover The mountain plover is a federally listed Bird of Conservation Concern and a state listed Species of Special Concern. These “special-status” designations apply to birds on their wintering grounds in California. The IS/MND does not discuss the mountain plover. The Central and Imperial Valleys of California are the primary wintering area for a high proportion of the global population of mountain plovers.14 During the winter, mountain plovers most frequently occur on 11

See p. 1 and Appendix D in: CDFG. 2012. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf. (Attachment A). 12 Ibid. See also CDFG. 2000 May 31. Recommended Timing and Methodology for Swainson’s Hawk Nesting Surveys in California’s Central Valley. Swainson’s Hawk Technical Advisory Committee. 13 Warrick GD, HO Clark Jr, PA Kelly, DF Williams, BL Cypher. 2007. Use of agricultural lands by San Joaquin kit foxes. Western North American Naturalist 67:270-277. 14 Hunting KW, S Fitton, L Edson. 2001. Distribution and Habitat Associations of the Mountain Plover (Charadrius montanus) in California. Trans. West. Sect. Wildl. Soc. 37: 37-42. See also Shuford WD, T

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fallow agricultural fields or on fields with short-growing crops. The Project site provides suitable wintering habitat for the species, and mountain plovers have been documented occurring on fields close to the Project site.15 The CDFG has explicitly stated that all Species of Special Concern should be considered during the environmental review process.16 Section 15380 of the CEQA Guidelines clearly indicates that species of special concern should be included in an analysis of project impacts if they can be shown to meet the criteria of sensitivity outlined therein.17 THE IS/MND LACKS ADEQUATE ANALYSES OF PROJECT IMPACTS TO THE BURROWING OWL, SWAINSON’S HAWK, AND SAN JOAQUIN KIT FOX The IS/MND does not identify or discuss the impacts that may occur to the burrowing owl, Swainson’s hawk, and San Joaquin kit fox. Specifically, the IS/MND does not identify the type (i.e., direct, indirect, or cumulative), duration (i.e., temporary or permanent), nature (i.e., source), or extent (i.e., scale) of the impacts that may afflict each species. Burrowing Owl Habitat loss and degradation from rapid urbanization of farmland in the core areas of the Central and Imperial valleys is the greatest threat to burrowing owls in California.18 The County is required to disclose this information and provide robust mitigation that reflects the severity of impacts to core habitat. The County is allowing the Applicant to evict owls from their burrows.19 It is currently CDFG’s position that the eviction of burrowing owls is a potentially significant impact under CEQA.20 Consequently, an EIR should be prepared to disclose and analyze the adverse effects that may occur to burrowing owls that are evicted from their burrows. Kit Fox Movement Corridors

Gardali, editors. 2008. California Bird Species of Special Concern: A ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California, and California Department of Fish and Game, Sacramento. 15 California Natural Diversity Database, Biogeograhic Data Branch, Department of Fish and Game. 2012 Apr 27 (Version 3.1.0). 16 Comrack, L., B. Bolster, J. Gustafson, D. Steele, and E. Burkett. April 10, 2008. Species of Special Concern: A Brief Description of an Important California Department of Fish and Game Designation. California Department of Fish and Game, Wildlife Branch, Nongame Wildlife Program Report 2008-03, Sacramento, CA. 4pp. 17 Ibid. 18 CDFG. 2012. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf. 19 IS/MND, p. 9. 20 Ibid.

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The San Joaquin kit fox exhibits a metapopulation structure consisting of three larger “core” and a number of smaller “satellite” populations.21 Movement of foxes between these populations is critical for maintaining genetic and demographic exchange.22 In addition, movement corridors for kit foxes are essential to preventing local extinctions and allowing recolonization of lands where foxes are extirpated or habitat has been restored.23 Knowledge of how mammals locate and utilize corridors is in its infancy.24 As a result, there is very little scientific basis with which to predict how kit foxes (and other wildlife) will respond to the Project’s solar arrays. If kit foxes view the solar arrays as a barrier or threat, they are unlikely to enter the Project site, even though they physically could. Furthermore, kit fox typically avoid habitats with complex structure (such as will be present on the Project site) because these habitats inhibit detection of predators.25 These considerations suggest the Project may inhibit or prevent kit fox movement. Given the uncertainties associated with the Project’s ability to maintain kit fox movement, and given movement corridors are essential to the viability of the San Joaquin kit fox population, the County cannot conclude that Project impacts to the San Joaquin kit fox have been mitigated to a less than significant level. An EIR should be prepared to analyze and disclose the regional and statewide significance of Project impacts on San Joaquin kit fox movement in the event the Project site acts as a functional barrier. The MND Fails to Assess Project Impacts to All Sensitive Biological Resources Mountain Plover Project impacts to the mountain plover have the potential to be particularly significant. California supports approximately 50% to 88% of the global population of mountain plovers during the winter.26 Within California, the largest known concentrations of wintering mountain plovers occur on agricultural fields in the Imperial and Central

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Cypher BL, SE Phillips, PA Kelly. 2007. Habitat suitability and potential corridors for San Joaquin kit fox in the San Luis Unit: Fresno, Kings, and Merced Counties, California. California State University, Stanislaus, Endangered Species Recovery Program. Available at: esrp.csustan.edu/publications. 22 Ibid. 23 Ibid. 24 See studies cited in Lidicker WZ Jr, WD Koenig. 1996. Responses of Terrestrial Vertebrates to Habitat Edges and Corridors. Pages 85-109 in DR McCullough, editor. Metapopulations and Wildlife Conservation. Island Press, Washington (DC). 25 Cypher BL, SE Phillips, PA Kelly. 2007. Habitat suitability and potential corridors for San Joaquin kit fox in the San Luis Unit: Fresno, Kings, and Merced Counties, California. California State University, Stanislaus, Endangered Species Recovery Program. Available at: esrp.csustan.edu/publications. 26 Shuford WD, T Gardali, editors. 2008. California Bird Species of Special Concern: A ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California, and California Department of Fish and Game, Sacramento.

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Valleys (including southerly San Joaquin Valley); specifically, on fields with characteristics comparable to those on the Project site.27 Habitat loss and degradation on the wintering and breeding grounds appear to be the main factors responsible for population declines in mountain plovers (Knopf 1996, USFWS 2003).28 The Project would eliminate 190 acres of habitat for the mountain plover. Moreover, there are dozens of solar projects planned for Fresno County that would eliminate thousands of acres of habitat for the mountain plover. The County must provide an assessment of these potentially significant impacts. Other Sensitive Wildlife The habitat assessment prepared by Precision Civil Engineering, Inc. (“Precision”) concluded “there is disturbed, marginally-suitable habitat for five state and/or federally listed sensitive status animal species adjacent the project impact area: Blunt-nosed leopard lizard, San Joaquin antelope squirrel, Giant kangaroo rat, Fresno kangaroo rat and San Joaquin kit fox…None of [sic] habitat potentially utilized by these five sensitive status species (Disturbed agricultural land) would be directly impacted or altered by the projects [sic] implementation.”29 This statement is confusing and insufficient for the following reasons: 1. The IS/MND mentions the San Joaquin kit fox, but none of the other four specialstatus species identified by Precision. 2. Precision does not identify where the five species may occur (i.e., onsite or offsite), although it appears to suggest the Project site provides marginallysuitable habitat for the five species. 3. The Project entails the installation of 90,720 non-reflective PV panels, a substation, an operations and maintenance building, a 30-foot high electrical utility tower, 35 electrical utility poles, 18 inverter buildings, a 6-foot high security fence, and other infrastructure. Therefore, Precision’s statement that no habitat “(Disturbed agricultural land)” would be directly impacted or altered by the Project is incorrect. Given the information presented in Precision’s habitat assessment, the IS/MND must clarify whether the Project has the potential to impact the blunt-nosed leopard lizard, San Joaquin antelope squirrel, giant kangaroo rat, or Fresno kangaroo rat. The IS/MND Fails to Assess Project Impacts Caused by Pesticide Application

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Ibid. See also Wunder MB, FL Knopf. 2003. The Imperial Valley of California is critical to wintering Mountain Plovers. J. Field Ornithol. 74:74-80. 28 See Shuford WD, T Gardali, editors. 2008. California Bird Species of Special Concern: A ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California, and California Department of Fish and Game, Sacramento. 29 Precision Civil Engineering, Inc. 2011 Aug 17. Habitat Assessment APN 038-080-24, GIFFEN 1, Cantua Creek, Fresno County, California, p. 1.

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The IS/MND indicates that Applicant will be applying pesticides (i.e., herbicides and rodenticides) on the Project site.30 However, the IS/MND does not disclose the: (a) the types of pesticides that might be used; (b) approximate quantities of pesticides that will be applied; or (c) frequency and timing (i.e., seasonality) of pesticide application. The lack of this information prevents independent analyses of potentially significant impacts due to the Project’s pesticide use. Secondary poisoning from rodenticides is considered a serious threat to the San Joaquin kit fox, Swainson’s hawk, burrowing owl, and numerous other sensitive wildlife species.31 From 1999 to 2003, the CDFG and USFWS screened liver tissue from 32 dead kit foxes. Anticoagulant rodenticide was detected in the liver of 27 (84%) of the foxes.32 As a result, the USFWS has concluded that select pesticides are likely to jeopardize the continued existence of the San Joaquin kit fox and several other federally listed species, and that current restrictions on anticoagulants are insufficient to prevent an acceptable level of adverse effects to non-target organisms.33 In addition to poisoning of non-target organisms, rodenticides eliminate prey resources for predators such as the San Joaquin kit fox, Swainson’s hawk, and burrowing owl. Rodenticides also eliminate the host burrowers (e.g., ground squirrels) that burrowing owls depend on for burrow creation. As a result, use of rodenticides at the Project site will degrade the existing habitat, and it will conflict with CDFG’s conservation goal to: “[m]inimize or prevent unnatural causes of burrowing owl population declines (e.g., nest burrow destruction, chemical control of rodent hosts and prey).”34 The IS/MND provides no evidence that the County consulted with the USFWS regarding the impacts of the Project’s pesticide use on the San Joaquin kit fox, or with the CDFG regarding impacts on the Swainson’s hawk and burrowing owl. Based on the aforementioned information, it is my professional opinion that the Project’s use of pesticides may have an unmitigated, significant impact on sensitive biological resources.

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IS/MND, p. 10, 11. U.S. Fish and Wildlife Service. 1998. Recovery plan for upland species of the San Joaquin Valley, California . Region 1, Portland, OR. 319 pp. See also CDFG. 1993. 5-Year Status Review: Swainson’s Hawk. See also Littrell EE. 1990. Effects of field vertebrate pest control on nontarget wildlife (with emphasis on bird and rodent control). Proceedings of the Fourteenth Vertebrate Pest Conference. California Department of Fish and Game, Pesticide Investigations Unit. See also CDFG. 2012. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf. See also Stone WB, JC Okonlewski, JR Stedelin. 2003. Anticoagulant rodenticides and raptors: recent findings from New York, 1998-2001. Bull. Environ. Contam. Toxicol. 70:34-40. 32 U.S. Environmental Protection Agency. 2004 Jul. Potential Risks of Nine Rodenticides to Birds and Nontarget Mammals: a Comparative Approach, p. 93. 33 Ibid. See also Littrell EE. 1990. Effects of field vertebrate pest control on nontarget wildlife (with emphasis on bird and rodent control). Proceedings of the Fourteenth Vertebrate Pest Conference. California Department of Fish and Game, Pesticide Investigations Unit. See also Wilson E. 28 Feb 2005. Letter to Kelly White, Chemical Review Manager, Environmental Protection Agency. 34 CDFG. 2012. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf. 31

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I concur with the CDFG that the use of rodenticides and other pesticides at the Project site has the potential to impact State-listed species such as the San Joaquin kit fox and Swainson’s hawk, and that impacts to these species warrant acquisition of an Incidental Take Permit.35 The MND Fails to Disclose or Assess the Project’s Hazard to Birds Solar Arrays One hundred million to 1 billion birds are killed annually by daytime window collisions at low-level structures in the U.S. alone.36 The visual system of birds is simply not capable of perceiving glass as a physical obstacle.37 The Project would include the installation of approximately 312,000 non-reflective PV panels. Although non-reflective glass reduces glare, it causes twice the number of bird strikes compared to conventional clear panes.38 The IS/MND fails to identify or assess the potential significance of this hazard to birds. I raised this concern in comment letters pertaining to the County’s CEQA review of the Inspiration and Liberty Solar projects. The County responded by stating: [b]ird strikes are not likely to occur at a PV facility because the approximately 6.5’ panels are not located in the direct flight path of birds. Birds have shown the ability to navigate around non-reflective objects. Additionally, Audubon International specifically recommends replacement of clear window panes with non-reflective glass to reduce the potential of bird strikes.39

I have the following comments pertaining to the County’s response: First, burrowing owls typically fly low to the ground, as do many resident songbird species. The solar panels will be in the flight path of these species. Second, whereas some birds have shown the ability to navigate around non-reflective objects, they have not been shown to have the ability to navigate around non-reflective glass.40

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Single JR, Regional Manager, California Department of Fish and Game. 2012 Mar 1. Letter to D Chambers, Fresno County Department of Public Works and Planning. Initial Study Application No. 6470 and Unclassified Conditional Use Permit Application No. 3347 Gestamp Asetym Solar-Giffen 1, p. 6. 36 Evans Ogden LJ. 2002. Summary Report on the Bird Friendly Building Program: Effect of Light Reduction on Collision of Migratory Birds. Special Report for the Fatal Light Awareness Program (FLAP). Available at: http://www.flap.org/. 37 Klem D Jr. 2009. Preventing Bird-Window Collisions. The Wilson Journal of Ornithology 121(2):314– 321. 38 Ibid. 39 County of Fresno. 2012. Inspiration Solar Project. Response to Comment No. 37. 40 Klem D Jr. 2009. Preventing Bird-Window Collisions. The Wilson Journal of Ornithology 121(2):314– 321.

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Third, the Audubon International Fact Sheet that appears to have been referenced in the County’s response cites Klem, who is the author of the study cited in my comments. Dr. Klem does not endorse or have any knowledge of Audubon’s recommendation.41 Moreover, Dr. Klem agreed that PV panels constitute a potential collision risk to birds depending on their reflective properties, background, angle, and location on the landscape.42 Transmission Lines Collisions with power transmission and distribution lines may kill anywhere from hundreds of thousands to 175 million birds annually, and power lines electrocute tens to hundreds of thousands more birds annually.43 The Project requires the installation of approximately 2.1 miles of new electric utility lines to connect the Project to the GIFFEN Substation. The MND does not disclose, analyze, or provide mitigation for the collision and electrocution hazard that the electric utility lines pose to birds. The IS/MND Lacks an Assessment of Potentially Significant Impacts Associated with the Project’s Use of Soil Stabilizers The Applicant intends to use soil stabilizers (also known as binders or dust suppressants) to control erosion at the Project site. Chemical soil stabilizers have the potential to cause adverse impacts to biological resources. Because soil stabilizers are generally applied over the ground surface, any vegetation or fauna on the site, including soil microorganisms, may come into direct contact with the stabilizers. Application of soil stabilizers has been associated with the browning of trees along roadways and stunted vegetation growth in forestlands.44 Soil stabilizers have caused sickness and reproductive effects in terrestrial animals, and they have the potential to cause adverse effects to wildlife that occur on the Project site.45 As a result, the County must disclose, analyze, and provide mitigation for potentially significant impacts associated with use of soil stabilizers on the Project site. The IS/MND Lacks a Valid Assessment of the Project’s Contribution to Cumulative Impacts

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D Klem Jr. personal communication with Scott Cashen on 2012 May 1. Ibid. 43 Manville AM II. 2005. Bird Strikes and Electrocutions at Power Lines, Communication Towers, and Wind Turbines: State of the Art and State of the Science –Next Steps Toward Mitigation. USDA Forest Service Gen. Tech. Rep. PSW-GTR-191. 44 US Environmental Protection Agency. 2004 Mar. Potential Environmental Impacts of Dust Suppressants: Avoiding another Times Beach. In: An Expert Panel Summary, May 30-31, 2002, Las Vegas, Nevada. Available at: http://www.epa.gov/nerlesd1/cmb/pdf/dust.pdf 45 Ibid. 42

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I concur with the CDFG that the Project in conjunction with other proposed projects has the potential to cumulatively affect special-status species.46 Moreover, it is my professional opinion that: 1. The Project’s incremental contribution to cumulative impacts to the burrowing owl would be cumulatively considerable given (a) the current status of the species in the County; and (b) the inability of the proposed mitigation to offset impacts to burrowing owls.47 2. The Project’s incremental contribution to cumulative impacts to the mountain plover may be cumulatively considerable given the Project site’s value as wintering habitat for the species. 3. The Project’s incremental contribution to cumulative impacts to the Swainson’s hawk may be cumulatively considerable. However, I am unable to formulate a definitive opinion in this regard due to the IS/MND’s omission of: (a) baseline data pertaining to active Swainson’s hawk nest sites in the vicinity of the Project site; and (b) analysis of cumulative impacts to Swainson’s hawk foraging habitat in proximity to nest sites. 4. The Project’s incremental contribution to cumulative impacts to the movement of the San Joaquin kit fox may be cumulatively considerable. However, I am unable to formulate a definitive opinion in this regard due to the IS/MND’s omission of fundamental data and analyses pertaining to this issue. THE MND LACKS ADEQUATE AND RELIABLE MITIGATION FOR IMPACTS TO SENSITIVE BIOLOGICAL RESOURCES The County Fails to Establish Mechanisms that Ensure Mitigation is Implemented and Successful The IS/MND does not establish performance standards for most of the proposed mitigation measures. In addition, the IS/MND does not establish a mitigation monitoring and reporting program that ensures mitigation measures are implemented successfully. Both of these issues preclude effective mitigation. As a result, the County cannot conclude the proposed mitigation would reduce Project impacts to a less than significant level. The MND Lacks Adequate Mitigation for Project Impacts to Sensitive Biological Resources Burrowing Owl 46

Single JR, Regional Manager, California Department of Fish and Game. 2012 Mar 1. Letter to D Chambers, Fresno County Department of Public Works and Planning. Initial Study Application No. 6470 and Unclassified Conditional Use Permit Application No. 3347 Gestamp Asetym Solar-Giffen 1. 47 Wilkerson RL and RB Siegel. 2010. Assessing changes in the distribution and abundance of burrowing owls in California, 1993-2007. Bird Populations 10: 1-36. See also CDFG. 2012 Mar 7. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf.

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I have the following comments pertaining to the mitigation that has been proposed for Project impacts to the burrowing owl: 1. The mitigation measures imposed by the County are based on CDFG’s 1995 Staff Report on Burrowing Owl Mitigation. The CDFG no longer recommends the mitigation measures described in its 1995 Staff Report because those mitigation measures have not been effective in the conservation of burrowing owls. On March 7th, 2012, the CDFG issued its 2012 Staff Report on Burrowing Owl Mitigation. The CDFG has explicitly stated that the 2012 Staff Report supersedes the survey, avoidance, minimization and mitigation recommendations in the 1995 Staff Report.48 To ensure potentially significant impacts to the burrowing owl are reduced to a less than significant level, mitigation imposed by the County needs to be revised to be consistent with the CDFG’s 2012 Staff Report. 2. The pre-construction survey required by the County does not comply with CDFG’s survey requirements because it does not require the Applicant to conduct four independent surveys, which CDFG has determined are necessary to provide reliable information on the presence of burrowing owls.49 3. The pre-construction survey required by the County does not comply with CDFG’s “take avoidance” survey requirements because it does not require an initial survey within the 14 days prior to ground disturbance, followed by a survey within 24 hours of ground disturbance.50 4. A single pre-construction survey is not adequate for avoiding, minimizing, and mitigating Project impacts to burrowing owls. The overall detection probability of burrowing owls through point-count surveys is approximately 64%.51 The MND does not specify the methods that should be used for the pre-construction burrowing owl survey. However, the detection probability associated with a preconstruction burrowing owl survey would arguably be comparable to (and likely less than) the one exhibited by point-count surveys (i.e., there is a 36% chance that owls present will go undetected). As a result, the County must require surveys that adhere to the methods outlined in CDFG’s 2012 Staff Report such that it has reliable information from which to evaluate Project impacts and devise mitigation that will minimize take. 5. The CDFG no longer supports its previous position that 6.5 acres of compensation habitat (per impacted owl or pair) is adequate to compensate for burrowing owl habitat loss.52 It is now CDFG’s position that mitigation for permanent burrowing owl habitat loss necessitates replacement with an equivalent or greater habitat 48

See p. 2 In: CDFG. 2012. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf. 49 See Appendix D In: CDFG. 2012. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf. 50 Ibid. 51 Conway CJ, J Simon. 2003. Comparison of detection probability associated with burrowing owl survey methods. Journal of Wildlife Management 67: 501-511. 52 Ibid.

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area.53 To ensure potentially significant impacts to the burrowing owl are reduced to a less than significant level, mitigation imposed by the County needs to be revised to reflect CDFG’s current guidelines for habitat compensation. 6. If compensatory mitigation is required, the CDFG has established that habitat on the Project site should not be altered or destroyed until the mitigation lands (a) have been approved by the CDFG; (b) have been legally secured and protected; (c) are managed for the benefit of the burrowing owl according to a management, monitoring, and reporting plan approved by the CDFG; and (d) the Applicant has provided an endowment for the ongoing maintenance and monitoring of the mitigation lands.54 Mitigation imposed by the County needs to adhere to these conditions in order to mitigate impacts to a less than significant level. 7. The MND does not require the Applicant to prepare a mitigation monitoring plan. Any mitigation for impacts to the burrowing owl need to be accompanied by performance standards and a mitigation monitoring plan that documents the success of the mitigation measures. 8. The County should include a mitigation measure that requires the burrowing owl survey results and mitigation strategy to be approved by CDFG prior to any ground disturbance activities. Due to the issues described above, and because the mitigation measures discussed in the MND are not consistent with CDFG’s current guidance, it is my professional opinion that the Project could have an unmitigated, significant impact on burrowing owls. San Joaquin Kit Fox The CDFG has recommended that the Project’s security fence be constructed such that it allows kit fox movement through the site (i.e., by leaving an opening at the base of the fence). The provision of a gap below the Project fence does not ensure the Project site would continue to function as a viable movement corridor. Several research studies have demonstrated that just because an organism can move from one location to another, doesn’t mean that it will.55 A “Before-After-Control-Impact study” is required to determine whether the Project elicits behavioral responses from kit fox. The Applicant does not possess adequate baseline data to conduct such a study. However, there are feasible mitigation measures that can be implemented to evaluate whether the Project site remains permeable to kit foxes. Specifically, I recommend the Applicant develop and implement a management and monitoring plan that incorporates: a. periodic inspection of the security fence to ensure permeability for kit foxes is 53

CDFG. 2012. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf. 54 Ibid. 55 See studies cited in Lidicker WZ Jr, WD Koenig. 1996. Responses of Terrestrial Vertebrates to Habitat Edges and Corridors. Pages 85-109 in DR McCullough, editor. Metapopulations and Wildlife Conservation. Island Press, Washington (DC).

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maintained; b. a scientific evaluation of kit fox movement through the Project site after the fence is installed. This could be accomplished by installing motion-activated wildlife cameras at strategic locations along the perimeter fence. c. an adaptive management program that is capable of addressing unanticipated events (e.g., kit fox mortality on the site or the fence acting as a functional barrier). Dens are particularly important for kit foxes to avoid predators. Due to soil compaction and other issues, it will be extremely difficult or impossible for kit foxes to establish dens on the Project site. This could lead to a high predation rate of kit foxes moving through the Project site. To mitigate this potentially significant impact, the Applicant should be required to install artificial dens on the Project site according to the techniques recommended by Cypher, et al. (2007).56 The MND Lacks Adequate Mitigation for Impacts from Pesticide Use The proposed mitigation for Project impacts from pesticide use suffers four primary flaws. First, the MND improperly defers formulation of a Pest Management Plan until after the environmental review process terminates.57 The lack of a Pest Management Plan precludes an assessment of (a) potentially significant Project impacts; and (b) the likely effectiveness of mitigation proposed in the MND. The County must make the Pest Management Plan available for review and input by the public, resource agencies, and biologists prior to a decision on the Project. Second, the MND indicates: “[i]f rodent control must be conducted, zinc phosphide should be used because of a proven lower risk to kit fox.”58 Whereas Schitoskey (1975) reported that kit foxes survived after eating rats dosed with zinc phosphide, according to the EPA, “zinc phosphide is ranked as the rodenticide posing the greatest potential primary risk to non-target mammals,” and it “poses the greatest potential primary risks to birds that eat bait” because a single zinc phosphide bait pellet will kill more than 50 percent of the small birds that consume it.59 Consequently, the County must analyze the impacts of zinc phosphide on wildlife that occur in the Project region. Third, the MND fails to adopt all feasible mitigation measures to minimize impacts from pesticide use. These include: •

prohibiting pesticide use in habitat occupied by sensitive species (e.g., burrowing owl).

56

Ibid. IS/MND, p. 5. 58 Ibid, p. 10. 59 Schitoskey Jr., F. 1975. Primary and secondary hazards of three rodenticides to kit fox. Journal of Wildlife Management. 39:416-418. See also U.S. Environmental Protection Agency. 2004 Jul. Potential Risks of Nine Rodenticides to Birds and Nontarget Mammals: a Comparative Approach. 57

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•

prohibiting pesticide application near water bodies (i.e., the drainage features) and prior to rain events.

•

placing rodenticides in tamper-resistant bait boxes.60

•

restricting the use of poisoned grain (i.e., bait) to the months of January and February.61

The IS/MND Fails to Establish Mitigation Measures for Potentially Significant Impacts to Birds Nesting Birds The Project site and surrounding habitat provide habitat for nesting birds. Most nesting bird species are protected by the Migratory Bird Treaty Act (“MBTA”), and in some cases the State and federal government. The MND does not provide any mitigation for impacts to nesting birds. As a result, the Project may violate the MBTA and cause significant impacts to sensitive avian resources. To ensure compliance with the MBTA, many public agencies mandate habitat disturbance projects occur outside of the breeding season. As mitigation, I recommend the County require the Applicant to conduct ground disturbance activities outsides of the avian breeding season. If ground disturbance must occur during the breeding season, the County must establish additional mitigation measures such as pre-construction nest surveys that are designed to detect all bird nests that may be impacted by the Project. Nest finding is labor intensive and can be extremely difficult due to the tendency of many species to construct well-concealed or camouflaged nests.62 As a result, most studies that involve locating bird nests employ a variety of search techniques. These include flushing an adult from the nest, watching parental behavior (e.g., carrying nest material or food), and systematically searching nesting substrates.63 In addition, breeding birds are known to be most active and detectable early in the morning, and there is a strong positive correlation between survey effort and abundance of nests detected. Consequently, any mitigation imposed by the County needs to specify the techniques that should be applied to nest surveys, the expected level of effort (i.e., hours per unit area), the search area, the time of day surveys will be permitted, and the techniques that should be used to minimize human-induced disturbance. Avian Collision and Electrocution Hazards

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U.S. Environmental Protection Agency. 2004 Jul. Potential Risks of Nine Rodenticides to Birds and Nontarget Mammals: a Comparative Approach. 61 See p. 9 in: CDFG. 2012 Mar 7. Staff Report on Burrowing Owl Mitigation. Available at: www.dfg.ca.gov/wildlife/nongame/docs/BUOWStaffReport.pdf. 62 DeSante DF, GR Geupel. 1987. Landbird productivity in central coastal California: the relationship to annual rainfall and a reproductive failure in 1986. Condor. 89:636-653. 63 Martin TE, GR Geupel. 1993. Nest-Monitoring Plots: Methods for Locating Nests and Monitoring Success. J. Field Ornithol. 64(4):507-519.

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Transmission LineThe Project transmission line has the potential to cause significant impacts to birds, particularly raptors. The IS/MND lacks mitigation for these impacts. The utility industry (in conjunction with the USFWS) has developed Avian Protection Plan Guidelines for new transmission facilities.64 In short, these guidelines promote “avian safe” facilities, monitoring, and the application of remedial measures when needed. Implementation of the guidelines, as well as the use of marker balls, bird diverters, and paint on transmission lines, have been shown to reduce avian collisions and electrocutions, sometimes significantly.65 These measures are feasible, and they should be required mitigation for the Project. Solar ArraysBecause the Project is located within an avian flyway, and because research indicates non-reflective glass is especially hazardous to birds, the Project may result in significant bird (and possibly bat) fatalities. There are feasible measures to mitigate this hazard. The California Energy Commission has required all recently licensed solar projects to conduct a Bird Monitoring Study to monitor the death and injury of birds from collisions with solar facility features.66 In addition, Klem (2009) discusses several techniques (e.g., UV-reflective coverings) that enable birds to avoid collision.67 These are feasible mitigation measures to offset potentially significant impacts caused by bird collisions with solar panels, and similar measures should be required for the Project. The IS/MND Lacks Mitigation for Potentially Significant Impacts that May Occur During Decommissioning Burrowing owls, nesting birds, San Joaquin kit fox and other sensitive resources may colonize or re-colonize the Project site prior to decommissioning. Decommissioning activities have the potential to impact these species by collapsing burrows and/or disturbing nest sites. The IS/MND does not require focused surveys to identify the presence of sensitive biological resources on the Project site prior to decommissioning, nor does it require any mitigation for significant impacts that may occur during the decommissioning process. As a result, the County has not established a mechanism for ensuring Project decommissioning activities would have a less than significant impact on sensitive biological resources.

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APLIC and USFWS. 2005. Avian Protection Plan (APP) Guidelines. Available at: http://www.fws.gov/migratorybirds/CurrentBirdIssues/Hazards/APP/AVIAN%20PROTECTION%20PLA N%20FINAL%204%2019%2005.pdf 65 Manville AM II. 2005. Bird Strikes and Electrocutions at Power Lines, Communication Towers, and Wind Turbines: State of the Art and State of the Science –Next Steps Toward Mitigation. USDA Forest Service Gen. Tech. Rep. PSW-GTR-191. 66 California Energy Commission. 2010 Jul. Supplemental Staff Assessment for the Calico Solar Project. p. C.2-230 67 Klem D Jr. 2009. Preventing Bird-Window Collisions. The Wilson Journal of Ornithology 121(2):314– 321.

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CONCLUSION In conclusion, it is my professional opinion that the environmental effects of the proposed Project have not been adequately disclosed, analyzed, or mitigated. The Project description is incomplete, and the effort devoted to surveying the Project site was insufficient for establishing existing conditions. The MND attempts to mask this flaw by requiring future surveys under the guise of mitigation. Baseline surveys to establish Project impacts are not “mitigation”; they are an essential component of the environmental review process. Because the County did not require protocol surveys for biological resources, the IS/MND does not provide the information needed to evaluate Project impacts and the effectiveness of proposed mitigation. The impact analyses presented in the IS/MND are incomplete. The IS/MND does not analyze impacts associated with the application of soil stabilizers and pesticides at the Project site, or the collision and electrocution hazard to birds. The IS/MND’s analysis of impacts to sensitive wildlife species is unreliable due to the lack of adequate baseline data. The IS/MND’s analysis of impacts to the burrowing owl is not consistent with CDFG’s 2012 Staff Report, and the IS/MND does not analyze impacts to the mountain plover. The IS/MND provides virtually no analysis of cumulative impacts. Most of the mitigation measures identified in the MND are uncertain and unenforceable. Furthermore, they lack performance standards, and a monitoring component to ensure they are effective. The mitigation measures proposed for Project impacts on the burrowing owl have proven ineffective in avoiding, minimizing, and mitigating impacts to the species. The County must develop mitigation consistent with CDFG’s 2012 Staff Report on Burrowing Owl Mitigation. The MND provides no mitigation for potentially significant impacts to nesting birds, and essential mountain plover habitat. The MND also lacks mitigation for the collision and electrocution hazard posed by the Project, and for impacts to non-target species that may be afflicted by the Project’s use of pesticides. As a result, it is my professional opinion that the proposed mitigation will not reduce Project impacts to a less than significant level. Given the extent and significance of the issues discussed herein, it is my professional opinion that the Project will result in unmitigated, significant impacts to special-status species, including the burrowing owl and the San Joaquin kit fox. Sincerely,

Scott Cashen, M.S. Senior Biologist

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Scott Cashen, M.S. Senior Biologist / Forest Ecologist 3264 Hudson Avenue, Walnut Creek, CA 94597. (925) 256-9185. [email protected]

Scott Cashen has 20 years of professional experience in natural resources management. During that time he has worked as a field biologist, forester, environmental consultant, and instructor of Wildlife Management. Mr. Cashen currently operates an independent consulting business that focuses on CEQA/NEPA compliance issues, endangered species, scientific field studies, and other topics that require a high level of scientific expertise. Mr. Cashen has knowledge and experience with many taxa, biological resource issues, and environmental regulations. This knowledge and experience has made him a highly sought after biological resources expert. To date, he has been retained as a biological resources expert for over 40 projects. Mr. Cashen’s role in this capacity has encompassed all stages of the environmental review process, from initial document review through litigation support and expert witness testimony. Mr. Cashen is a recognized expert on the environmental impacts of renewable energy development. He has been involved in the environmental review process for 28 renewable energy projects, and he has been a biological resources expert for more of California’s solar energy projects than any other private consultant. In 2010, Mr. Cashen testified on 5 of the Department of the Interior’s “Top 6 Fast-tracked Solar Projects” and his testimony influenced the outcome of each of these projects. Mr. Cashen is a versatile scientist capable of addressing numerous aspects of natural resource management simultaneously. Because of Mr. Cashen’s expertise in both forestry and biology, Calfire had him prepare the biological resource assessments for all of its fuels treatment projects in Riverside and San Diego Counties following the 2003 Cedar Fire. Mr. Cashen has led field studies on several special-status species, including plants, fish, reptiles, amphibians, birds, and mammals. Mr. Cashen has been the technical editor of several resource management documents, and his strong scientific writing skills have enabled him to secure grant funding for several clients. AREAS OF EXPERTISE CEQA, NEPA, and Endangered Species Act compliance issues  Comprehensive biological resource assessments  Endangered species management  Renewable energy  Forest fuels reduction and timber harvesting  Scientific field studies, grant writing and technical editing EDUCATION M.S. Wildlife and Fisheries Science - The Pennsylvania State University (1998)

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B.S. Resource Management - The University of California, Berkeley (1992)

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PROFESSIONAL EXPERIENCE Litigation Support / Expert Witness As a biological resources expert, Mr. Cashen reviews CEQA/NEPA documents and provides his client(s) with an assessment of biological resource issues. He then prepares written comments on the scientific and legal adequacy of the project’s environmental documents (e.g., EIR). For projects requiring California Energy Commission (CEC) approval, Mr. Cashen has submitted written testimony (opening and rebuttal) in conjunction with oral testimony before the CEC. Mr. Cashen can lead field studies to generate evidence for legal testimony, and he can incorporate testimony from his deep network of species-specific experts. Mr. Cashen’s clients have included law firms, non-profit organizations, and citizen groups. REPRESENTATIVE EXPERIENCE Solar Energy Facilities Abengoa Mojave Solar Project Avenal Energy Power Plant Beacon Solar Energy Project Blythe Solar Power Project Calico Solar Project Calipatria Solar Farm II Carrizo Energy Solar Farm Catalina Renewable Energy Project Fink Road Solar Farm Genesis Solar Energy Project Heber Solar Energy Facility Imperial Valley Solar Project Ivanpah Solar Electric Generating System Maricopa Sun Solar Complex Mt. Signal and Calexico Solar Projects San Joaquin Solar I & II Solar Gen II Projects SR Solis Oro Loma Vestal Solar Facilities Victorville 2 Power Project

Geothermal Energy Facilities East Brawley Geothermal Development Mammoth Pacific 1 Replacement Facility Western GeoPower Plant and Steamfield Wind Energy Facilities Catalina Renewable Energy Project Ocotillo Express Wind Energy Project San Diego County Wind Ordinance Tres Vaqueros Repowering Project Vasco Winds Relicensing Project Biomass Facilities Tracy Green Energy Project Development Projects Alves Ranch Aviano Chula Vista Bayfront Master Plan Columbus Salame Concord Naval Weapons Station Faria Annexation Live Oak Master Plan Napa Pipe Roddy Ranch Rollingwood Sprint-Nextel Tower

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Project Management Mr. Cashen has managed several large-scale wildlife, forestry, and natural resource management projects. Many of these projects have required hiring and training field crews, coordinating with other professionals, and communicating with project stakeholders. Mr. Cashen’s experience in study design, data collection, and scientific writing make him an effective project manager, and his background in several different natural resource disciplines enable him to address the many facets of contemporary land management in a cost-effective manner. REPRESENTATIVE EXPERIENCE Wildlife Studies •

Peninsular Bighorn Sheep Resource Use and Behavior Study: (CA State Parks)

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“KV” Spotted Owl and Northern Goshawk Inventory: (USFS, Plumas NF)

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Amphibian Inventory Project: (USFS, Plumas NF)

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San Mateo Creek Steelhead Restoration Project: (Trout Unlimited and CA Coastal Conservancy, Orange County)

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Delta Meadows State Park Special-status Species Inventory: (CA State Parks, Locke)

Natural Resources Management •

Mather Lake Resource Management Study and Plan – (Sacramento County)

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Placer County Vernal Pool Study – (Placer County)

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Weidemann Ranch Mitigation Project – (Toll Brothers, Inc., San Ramon)

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Ion Communities Biological Resource Assessments – (Ion Communities, Riverside and San Bernardino Counties)

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Del Rio Hills Biological Resource Assessment – (The Wyro Company, Rio Vista)

Forestry •

Forest Health Improvement Projects – (CalFire, SD and Riverside Counties)

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San Diego Bark Beetle Tree Removal Project – (SDG&E, San Diego Co.)

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San Diego Bark Beetle Tree Removal Project – (San Diego County/NRCS)

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Hillslope Monitoring Project – (CalFire, throughout California)

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Biological Resources Mr. Cashen has a diverse background with biological resources. He has conducted comprehensive biological resource assessments, habitat evaluations, species inventories, and scientific peer review. Mr. Cashen has led investigations on several special-status species, including ones focusing on the foothill yellow-legged frog, mountain yellowlegged frog, desert tortoise, steelhead, burrowing owl, California spotted owl, northern goshawk, willow flycatcher, Peninsular bighorn sheep, red panda, and forest carnivores. REPRESENTATIVE EXPERIENCE Avian Study design and Lead Investigator - Delta Meadows State Park Special-Status Species Inventory (CA State Parks: Locke) Study design and lead bird surveyor - Placer County Vernal Pool Study (Placer County: throughout Placer County) Surveyor - Willow flycatcher habitat mapping (USFS: Plumas NF) Independent surveyor - Tolay Creek, Cullinan Ranch, and Guadacanal Village restoration projects (Ducks Unlimited/USGS: San Pablo Bay) Study design and Lead Investigator - Bird use of restored wetlands research (Pennsylvania Game Commission: throughout Pennsylvania) Study design and surveyor - Baseline inventory of bird species at a 400-acre site in Napa County (HCV Associates: Napa) Surveyor - Baseline inventory of bird abundance following diesel spill (LFR LevineFricke: Suisun Bay) Study design and lead bird surveyor - Green Valley Creek Riparian Restoration Site (City of Fairfield: Fairfield, CA) Surveyor - Burrowing owl relocation and monitoring (US Navy: Dixon, CA) Surveyor - Pre-construction raptor and burrowing owl surveys (various clients and locations) Surveyor - Backcountry bird inventory (National Park Service: Eagle, Alaska) Lead surveyor - Tidal salt marsh bird surveys (Point Reyes Bird Observatory: throughout Bay Area) Surveyor – Pre-construction surveys for nesting birds (various clients and locations) Amphibian Crew Leader - Red-legged frog, foothill yellow-legged frog, and mountain yellow-legged frog surveys (USFS: Plumas NF) Surveyor - Foothill yellow-legged frog surveys (PG&E: North Fork Feather River) Surveyor - Mountain yellow-legged frog surveys (El Dorado Irrigation District: Desolation Wilderness) Crew Leader - Bullfrog eradication (Trout Unlimited: Cleveland NF) Fish and Aquatic Resources Surveyor - Hardhead minnow and other fish surveys (USFS: Plumas NF)

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Surveyor - Weber Creek aquatic habitat mapping (El Dorado Irrigation District: Placerville, CA) Surveyor - Green Valley Creek aquatic habitat mapping (City of Fairfield: Fairfield, CA) GPS Specialist - Salmonid spawning habitat mapping (CDFG: Sacramento River) Surveyor - Fish composition and abundance study (PG&E: Upper North Fork Feather River and Lake Almanor) Crew Leader - Surveys of steelhead abundance and habitat use (CA Coastal Conservancy: Gualala River estuary) Crew Leader - Exotic species identification and eradication (Trout Unlimited: Cleveland NF) Mammals Principal Investigator – Peninsular bighorn sheep resource use and behavior study (California State Parks: Freeman Properties) Scientific Advisor –Study on red panda occupancy and abundance in eastern Nepal (The Red Panda Network: CA and Nepal) Surveyor - Forest carnivore surveys (University of CA: Tahoe NF) Surveyor - Relocation and monitoring of salt marsh harvest mice and other small mammals (US Navy: Skagg’s Island, CA) Surveyor – Surveys for Monterey dusky-footed woodrat. Relocation of woodrat houses (Touré Associates: Prunedale) Natural Resource Investigations / Multiple Species Studies Scientific Review Team Member – Member of the science review team assessing the effectiveness of the US Forest Service’s implementation of the Herger-Feinstein Quincy Library Group Act. Lead Consultant - Baseline biological resource assessments and habitat mapping for CDF management units (CDF: San Diego, San Bernardino, and Riverside Counties) Biological Resources Expert – Peer review of CEQA/NEPA documents (Adams Broadwell Joseph & Cardoza: California) Lead Consultant - Pre- and post-harvest biological resource assessments of tree removal sites (SDG&E: San Diego County) Crew Leader - T&E species habitat evaluations for Biological Assessment in support of a steelhead restoration plan (Trout Unlimited: Cleveland NF) Lead Investigator - Resource Management Study and Plan for Mather Lake Regional Park (County of Sacramento: Sacramento, CA) Lead Investigator - Biological Resources Assessment for 1,070-acre Alfaro Ranch property (Yuba County, CA) Lead Investigator - Wildlife Strike Hazard Management Plan (HCV Associates: Napa) Lead Investigator - Del Rio Hills Biological Resource Assessment (The Wyro Company: Rio Vista, CA) Lead Investigator – Ion Communities project sites (Ion Communities: Riverside and San Bernardino Counties) Surveyor – Tahoe Pilot Project: Validation of California’s Wildlife Habitat Relationships (CWHR) Model (University of California: Tahoe NF)

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Forestry Mr. Cashen has five years of experience working as a consulting forester on projects throughout California. Mr. Cashen has consulted with landowners and timber operators on forest management practices; and he has worked on a variety of forestry tasks including selective tree marking, forest inventory, harvest layout, erosion control, and supervision of logging operations. Mr. Cashen’s experience with many different natural resources enable him to provide a holistic approach to forest management, rather than just management of timber resources. REPRESENTATIVE EXPERIENCE Lead Consultant - CalFire fuels treatment projects (SD and Riverside Counties) Lead Consultant and supervisor of harvest activities – San Diego Gas and Electric Bark Beetle Tree Removal Project (San Diego) Crew Leader - Hillslope Monitoring Program (CalFire: throughout California) Consulting Forester – Forest inventories and timber harvest projects (various clients throughout California)

Grant Writing and Technical Editing Mr. Cashen has prepared and submitted over 50 proposals and grant applications. Many of the projects listed herein were acquired through proposals he wrote. Mr. Cashen’s clients and colleagues have recognized his strong scientific writing skills and ability to generate technically superior proposal packages. Consequently, he routinely prepares funding applications and conducts technical editing for various clients. PERMITS U.S. Fish and Wildlife Service Section 10(a)(1)(A) Recovery Permit for the Peninsular bighorn sheep CA Department of Fish and Game Scientific Collecting Permit PROFESSIONAL ORGANIZATIONS / ASSOCIATIONS The Wildlife Society (Conservation Affairs Committee member) Cal Alumni Foresters Mt. Diablo Audubon Society OTHER AFFILIATIONS Scientific Advisor and Grant Writer – The Red Panda Network Scientific Advisor – Mt. Diablo Audubon Society Grant Writer – American Conservation Experience Scientific Advisor and Land Committee Member – Save Mt. Diablo

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Staff Report on Burrowing Owl Mitigation

State of California Natural Resources Agency Department of Fish and Game March 7, 20121

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This document replaces the Department of Fish and Game 1995 Staff Report On Burrowing Owl Mitigation.

TABLE OF CONTENTS

INTRODUCTION AND PURPOSE ..........................................................................................................................1 DEPARTMENT ROLE AND LEGAL AUTHORITIES ..............................................................................................2 GUIDING PRINCIPLES FOR CONSERVATION.....................................................................................................3 CONSERVATION GOALS FOR THE BURROWING OWL IN CALIFORNIA .........................................................4 ACTIVITIES WITH THE POTENTIAL TO TAKE OR IMPACT BURROWING OWLS.............................................4 PROJECT IMPACT EVALUATIONS.......................................................................................................................5 MITIGATION METHODS.........................................................................................................................................8 ACKNOWLEDGEMENTS .....................................................................................................................................15 REFERENCES ......................................................................................................................................................15 Appendix A. Burrowing Owl Natural History and Threats...............................................................................20 Appendix B. Definitions .....................................................................................................................................24 Appendix C. Habitat Assessment and Reporting Details................................................................................26 Appendix D. Breeding and Non-breeding Season Survey and Reports ...................................................................................................................................28 Appendix E. Draft Example Components for Burrowing Owl Artificial Burrow and Exclusion Plans ........................................................................................31 Appendix F. Mitigation Management Plan and Vegetation Management Goals .......................................................................................................................33

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INTRODUCTION AND PURPOSE Maintaining California’s rich biological diversity is dependent on the conservation of species and their habitats. The California Department of Fish and Game (Department) has designated certain species as “species of special concern” when their population viability and survival is adversely affected by risk factors such as precipitous declines or other vulnerability factors (Shuford and Gardali 2008). Preliminary analyses of regional patterns for breeding populations of burrowing owls (Athene cunicularia) have detected declines both locally in their central and southern coastal breeding areas, and statewide where the species has experienced modest breeding range retraction (Gervais et al. 2008). In California, threat factors affecting burrowing owl populations include habitat loss, degradation and modification, and eradication of ground squirrels resulting in a loss of suitable burrows required by burrowing owls for nesting, protection from predators, and shelter (See Appendix A). The Department recognized the need for a comprehensive conservation and mitigation strategy for burrowing owls, and in 1995 directed staff to prepare a report describing mitigation and survey recommendations. This report, “1995 Staff Report on Burrowing Owl Mitigation,” (Staff Report) (CDFG 1995), contained Department-recommended burrowing owl and burrow survey techniques and mitigation measures intended to offset the loss of habitat and slow or reverse further decline of this species. Notwithstanding these measures, over the past 15+ years, burrowing owls have continued to decline in portions of their range (DeSante et al. 2007, Wilkerson and Siegel, 2010). The Department has determined that reversing declining population and range trends for burrowing owls will require implementation of more effective conservation actions, and evaluating the efficacy of the Department’s existing recommended avoidance, minimization and mitigation approaches for burrowing owls. The Department has identified three main actions that together will facilitate a more viable, coordinated, and concerted approach to conservation and mitigation for burrowing owls in California. These include: 1. Incorporating burrowing owl comprehensive conservation strategies into landscape-based planning efforts such as Natural Community Conservation Plans (NCCPs) and multi-species Habitat Conservation Plans (HCPs) that specifically address burrowing owls. 2. Developing and implementing a statewide conservation strategy (Burkett and Johnson, 2007) and local or regional conservation strategies for burrowing owls, including the development and implementation of a statewide burrowing owl survey and monitoring plan. 3. Developing more rigorous burrowing owl survey methods, working to improve the adequacy of impacts assessments; developing clear and effective avoidance and minimization measures; and developing mitigation measures to ensure impacts to the species are effectively addressed at the project, local, and/or regional level (the focus of this document). This Report sets forth the Department’s recommendations for implementing the third approach identified above by revising the 1995 Staff Report, drawing from the most relevant and current knowledge and expertise, and incorporating the best scientific information

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available pertaining to the species. It is designed to provide a compilation of the best available science for Department staff, biologists, planners, land managers, California Environmental Quality Act (CEQA) lead agencies, and the public to consider when assessing impacts of projects or other activities on burrowing owls. This revised Staff Report takes into account the California Burrowing Owl Consortium’s Survey Protocol and Mitigation Guidelines (CBOC 1993, 1997) and supersedes the survey, avoidance, minimization and mitigation recommendations in the 1995 Staff Report. Based on experiences gained from implementing the 1995 Staff Report, the Department believes revising that report is warranted. This document also includes general conservation goals and principles for developing mitigation measures for burrowing owls.

DEPARTMENT ROLE AND LEGAL AUTHORITIES The mission of the Department is to manage California's diverse fish, wildlife and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment by the public. The Department has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitats necessary to maintain biologically sustainable populations of those species (Fish and Game Code (FGC) §1802). The Department, as trustee agency pursuant to CEQA (See CEQA Guidelines, §15386), has jurisdiction by law over natural resources, including fish and wildlife, affected by a project, as that term is defined in Section 21065 of the Public Resources Code. The Department exercises this authority by reviewing and commenting on environmental documents and making recommendations to avoid, minimize, and mitigate potential negative impacts to those resources held in trust for the people of California. Field surveys designed to detect the presence of a particular species, habitat element, or natural community are one of the tools that can assist biologists in determining whether a species or habitat may be significantly impacted by land use changes or disturbance. The Department reviews field survey data as well as site-specific and regional information to evaluate whether a project’s impacts may be significant. This document compiles the best available science for conducting habitat assessments and surveys, and includes considerations for developing measures to avoid impacts or mitigate unavoidable impacts. CEQA CEQA requires public agencies in California to analyze and disclose potential environmental impacts associated with a project that the agency will carry out, fund, or approve. Any potentially significant impact must be mitigated to the extent feasible. Project-specific CEQA mitigation is important for burrowing owls because most populations exist on privately owned parcels that, when proposed for development or other types of modification, may be subject to the environmental review requirements of CEQA. Take Take of individual burrowing owls and their nests is defined by FGC section 86, and prohibited by sections 3503, 3503.5 and 3513. Take is defined in FGC Section 86 as “hunt, pursue, catch, capture or kill, or attempt to hunt, pursue, catch, capture or kill.”

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Migratory Bird Treaty Act The Migratory Bird Treaty Act (MBTA) implements various treaties and conventions between the United States and Canada, Japan, Mexico, and Russia for the protection of migratory birds, including the burrowing owl (50 C.F.R. § 10). The MBTA protects migratory bird nests from possession, sale, purchase, barter, transport, import and export, and collection. The other prohibitions of the MBTA - capture, pursue, hunt, and kill - are inapplicable to nests. The regulatory definition of take, as defined in Title 50 C.F.R. part 10.12, means to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to hunt, shoot, wound, kill, trap, capture, or collect. Only the verb “collect” applies to nests. It is illegal to collect, possess, and by any means transfer possession of any migratory bird nest. The MBTA prohibits the destruction of a nest when it contains birds or eggs, and no possession shall occur during the destruction (see Fish and Wildlife Service, Migratory Bird Permit Memorandum, April 15, 2003). Certain exceptions to this prohibition are included in 50 C.F.R. section 21. Pursuant to Fish & Game Code section 3513, the Department enforces the Migratory Bird Treaty Act consistent with rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Treaty Act. Regional Conservation Plans Regional multiple species conservation plans offer long-term assurances for conservation of covered species at a landscape scale, in exchange for biologically appropriate levels of incidental take and/or habitat loss as defined in the approved plan. California’s NCCP Act (FGC §2800 et seq.) governs such plans at the state level, and was designed to conserve species, natural communities, ecosystems, and ecological processes across a jurisdiction or a collection of jurisdictions. Complementary federal HCPs are governed by the Endangered Species Act (7 U.S.C. § 136, 16 U.S.C.§ 1531 et seq.) (ESA). Regional conservation plans (and certain other landscape-level conservation and management plans), may provide conservation for unlisted as well as listed species. Because the geographic scope of NCCPs and HCPs may span many hundreds of thousands of acres, these planning tools have the potential to play a significant role in conservation of burrowing owls, and grasslands and other habitats. Fish and Game Commission Policies There are a number of Fish and Game Commission policies (see FGC §2008) that can be applied to burrowing owl conservation. These include policies on: Raptors, Cooperation, Endangered and Threatened Species, Land Use Planning, Management and Utilization of Fish and Wildlife on Federal Lands, Management and Utilization of Fish and Wildlife on Private Lands, and Research.

GUIDING PRINCIPLES FOR CONSERVATION Unless otherwise provided in a statewide, local, or regional conservation strategy, surveying and evaluating impacts to burrowing owls, as well as developing and implementing avoidance, minimization, and mitigation and conservation measures incorporate the following principles. These principles are a summary of Department staff expert opinion and were used to guide the preparation of this document.

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1. Use the Precautionary Principle (Noss et al.1997), by which the alternative of increased conservation is deliberately chosen in order to buffer against incomplete knowledge of burrowing owl ecology and uncertainty about the consequences to burrowing owls of potential impacts, including those that are cumulative. 2. Employ basic conservation biology tenets and population-level approaches when determining what constitutes appropriate avoidance, minimization, and mitigation for impacts. Include mitigation effectiveness monitoring and reporting, and use an adaptive management loop to modify measures based on results. 3. Protect and conserve owls in wild, semi-natural, and agricultural habitats (conserve is defined at FGC §1802). 4. Protect and conserve natural nest burrows (or burrow surrogates) previously used by burrowing owls and sufficient foraging habitat and protect auxiliary “satellite” burrows that contribute to burrowing owl survivorship and natural behavior of owls.

CONSERVATION GOALS FOR THE BURROWING OWL IN CALIFORNIA It is Department staff expert opinion that the following goals guide and contribute to the short and long-term conservation of burrowing owls in California: 1. Maintain size and distribution of extant burrowing owl populations (allowing for natural population fluctuations). 2. Increase geographic distribution of burrowing owls into formerly occupied historical range where burrowing owl habitat still exists, or where it can be created or enhanced, and where the reason for its local disappearance is no longer of concern. 3. Increase size of existing populations where possible and appropriate (for example, considering basic ecological principles such as carrying capacity, predator-prey relationships, and inter-specific relationships with other species at risk). 4. Protect and restore self-sustaining ecosystems or natural communities which can support burrowing owls at a landscape scale, and which will require minimal long-term management. 5. Minimize or prevent unnatural causes of burrowing owl population declines (e.g., nest burrow destruction, chemical control of rodent hosts and prey). 6. Augment/restore natural dynamics of burrowing owl populations including movement and genetic exchange among populations, such that the species does not require future listing and protection under the California Endangered Species Act (CESA) and/or the federal Endangered Species Act (ESA). 7. Engage stakeholders, including ranchers; farmers; military; tribes; local, state, and federal agencies; non-governmental organizations; and scientific research and education communities involved in burrowing owl protection and habitat management.

ACTIVITIES WITH THE POTENTIAL TO TAKE OR IMPACT BURROWING OWLS The following activities are examples of activities that have the potential to take burrowing owls, their nests or eggs, or destroy or degrade burrowing owl habitat: grading, disking, cultivation, earthmoving, burrow blockage, heavy equipment compacting and crushing burrow tunnels, levee maintenance, flooding, burning and mowing (if burrows are impacted), and operating wind turbine collisions (collectively hereafter referred to as “projects” or “activities” 03/7/12 DFG BUOW Staff Report

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whether carried out pursuant to CEQA or not). In addition, the following activities may have impacts to burrowing owl populations: eradication of host burrowers; changes in vegetation management (i.e. grazing); use of pesticides and rodenticides; destruction, conversion or degradation of nesting, foraging, over-wintering or other habitats; destruction of natural burrows and burrow surrogates; and disturbance which may result in harassment of owls at occupied burrows.

PROJECT IMPACT EVALUATIONS The following three progressive steps are effective in evaluating whether projects will result in impacts to burrowing owls. The information gained from these steps will inform any subsequent avoidance, minimization and mitigation measures. The steps for project impact evaluations are: 1) habitat assessment, 2) surveys, and 3) impact assessment. Habitat assessments are conducted to evaluate the likelihood that a site supports burrowing owl. Burrowing owl surveys provide information needed to determine the potential effects of proposed projects and activities on burrowing owls, and to avoid take in accordance with FGC sections 86, 3503, and 3503.5. Impact assessments evaluate the extent to which burrowing owls and their habitat may be impacted, directly or indirectly, on and within a reasonable distance of a proposed CEQA project activity or non-CEQA project. These three site evaluation steps are discussed in detail below. Biologist Qualifications The current scientific literature indicates that only individuals meeting the following minimum qualifications should perform burrowing owl habitat assessments, surveys, and impact assessments: 1. Familiarity with the species and its local ecology; 2. Experience conducting habitat assessments and non-breeding and breeding season surveys, or experience with these surveys conducted under the direction of an experienced surveyor; 3. Familiarity with the appropriate state and federal statutes related to burrowing owls, scientific research, and conservation; 4. Experience with analyzing impacts of development on burrowing owls and their habitat. Habitat Assessment Data Collection and Reporting A habitat assessment is the first step in the evaluation process and will assist investigators in determining whether or not occupancy surveys are needed. Refer to Appendix B for a definition of burrowing owl habitat. Compile the detailed information described in Appendix C when conducting project scoping, conducting a habitat assessment site visit and preparing a habitat assessment report. Surveys Burrowing owl surveys are the second step of the evaluation process and the best available scientific literature recommends that they be conducted whenever burrowing owl habitat or sign (see Appendix B) is encountered on or adjacent to (within 150 meters) a project site

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(Thomsen 1971, Martin 1973). Occupancy of burrowing owl habitat is confirmed at a site when at least one burrowing owl, or its sign at or near a burrow entrance, is observed within the last three years (Rich 1984). Burrowing owls are more detectable during the breeding season with detection probabilities being highest during the nestling stage (Conway et al. 2008). In California, the burrowing owl breeding season extends from 1 February to 31 August (Haug et al. 1993, Thompsen 1971) with some variances by geographic location and climatic conditions. Several researchers suggest three or more survey visits during daylight hours (Haug and Diduik 1993, CBOC 1997, Conway and Simon 2003) and recommend each visit occur at least three weeks apart during the peak of the breeding season, commonly accepted in California as between 15 April and 15 July (CBOC 1997). Conway and Simon (2003) and Conway et al. (2008) recommended conducting surveys during the day when most burrowing owls in a local area are in the laying and incubation period (so as not to miss early breeding attempts), during the nesting period, and in the late nestling period when most owls are spending time above ground. Non-breeding season (1 September to 31 January) surveys may provide information on burrowing owl occupancy, but do not substitute for breeding season surveys because results are typically inconclusive. Burrowing owls are more difficult to detect during the non-breeding season and their seasonal residency status is difficult to ascertain. Burrowing owls detected during non-breeding season surveys may be year-round residents, young from the previous breeding season, pre-breeding territorial adults, winter residents, dispersing juveniles, migrants, transients or new colonizers. In addition, the numbers of owls and their pattern of distribution may differ during winter and breeding seasons. However, on rare occasions, non-breeding season surveys may be warranted (i.e., if the site is believed to be a wintering site only based on negative breeding season results). Refer to Appendix D for information on breeding season and non-breeding season survey methodologies. Survey Reports Adequate information about burrowing owls present in and adjacent to an area that will be disturbed by a project or activity will enable the Department, reviewing agencies and the public to effectively assess potential impacts and will guide the development of avoidance, minimization, and mitigation measures. The survey report includes but is not limited to a description of the proposed project or proposed activity, including the proposed project start and end dates, as well as a description of disturbances or other activities occurring on-site or nearby. Refer to Appendix D for details included in a survey report. Impact Assessment The third step in the evaluation process is the impact assessment. When surveys confirm occupied burrowing owl habitat in or adjoining the project area, there are a number of ways to assess a project’s potential significant impacts to burrowing owls and their habitat. Richardson and Miller (1997) recommended monitoring raptor behavior prior to developing management recommendations and buffers to determine the extent to which individuals have been sensitized to human disturbance. Monitoring results will also provide detail necessary for developing site-specific measures. Postovit and Postovit (1987) recommended an analytical approach to mitigation planning: define the problem (impact), set goals (to guide mitigation development), evaluate and select mitigation methods, and monitor the results.

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Define the problem. The impact assessment evaluates all factors that could affect burrowing owls. Postovit and Postovit (1987) recommend evaluating the following in assessing impacts to raptors and planning mitigation: type and extent of disturbance, duration and timing of disturbance, visibility of disturbance, sensitivity and ability to habituate, and influence of environmental factors. They suggest identifying and addressing all potential direct and indirect impacts to burrowing owls, regardless of whether or not the impacts will occur during the breeding season. Several examples are given for each impact category below; however, examples are not intended to be used exclusively. Type and extent of the disturbance. The impact assessment describes the nature (source) and extent (scale) of potential project impacts on occupied, satellite and unoccupied burrows including acreage to be lost (temporary or permanent), fragmentation/edge being created, increased distance to other nesting and foraging habitat, and habitat degradation. Discuss any project activities that impact either breeding and/or non-breeding habitat which could affect owl home range size and spatial configuration, negatively affect onsite and offsite burrowing owl presence, increase energetic costs, lower reproductive success, increase vulnerability to predation, and/or decrease the chance of procuring a mate. Duration and timing of the impact. The impact assessment describes the amount of time the burrowing owl habitat will be unavailable to burrowing owls (temporary or permanent) on the site and the effect of that loss on essential behaviors or life history requirements of burrowing owls, the overlap of project activities with breeding and/or non-breeding seasons (timing of nesting and/or non-breeding activities may vary with latitude and climatic conditions, which should be considered with the timeline of the project or activity), and any variance of the project activities in intensity, scale and proximity relative to burrowing owl occurrences. Visibility and sensitivity. Some individual burrowing owls or pairs are more sensitive than others to specific stimuli and may habituate to ongoing visual or audible disturbance. Sitespecific monitoring may provide clues to the burrowing owl’s sensitivities. This type of assessment addresses the sensitivity of burrowing owls within their nesting area to humans on foot, and vehicular traffic. Other variables are whether the site is primarily in a rural versus urban setting, and whether any prior disturbance (e.g., human development or recreation) is known at the site. Environmental factors. The impact assessment discusses any environmental factors that could be influenced or changed by the proposed activities including nest site availability, predators, prey availability, burrowing mammal presence and abundance, and threats from other extrinsic factors such as human disturbance, urban interface, feral animals, invasive species, disease or pesticides. Significance of impacts. The impact assessment evaluates the potential loss of nesting burrows, satellite burrows, foraging habitat, dispersal and migration habitat, wintering habitat, and habitat linkages, including habitat supporting prey and host burrowers and other essential habitat attributes. This assessment determines if impacts to the species will result in significant impacts to the species locally, regionally and range-wide per CEQA Guidelines §15382 and Appendix G. The significance of the impact to habitat depends on the extent of habitat disturbed and length of time the habitat is unavailable (for example: minor – several days, medium – several weeks to months, high - breeding season affecting juvenile survival,

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or over winter affecting adult survival). Cumulative effects. The cumulative effects assessment evaluates two consequences: 1) the project’s proportional share of reasonably foreseeable impacts on burrowing owls and habitat caused by the project or in combination with other projects and local influences having impacts on burrowing owls and habitat, and 2) the effects on the regional owl population resulting from the project’s impacts to burrowing owls and habitat. Mitigation goals. Establishing goals will assist in planning mitigation and selecting measures that function at a desired level. Goals also provide a standard by which to measure mitigation success. Unless specifically provided for through other FGC Sections or through specific regulations, take, possession or destruction of individual burrowing owls, their nests and eggs is prohibited under FGC sections 3503, 3503.5 and 3513. Therefore, a required goal for all project activities is to avoid take of burrowing owls. Under CEQA, goals would consist of measures that would avoid, minimize and mitigate impacts to a less than significant level. For individual projects, mitigation must be roughly proportional to the level of impacts, including cumulative impacts, in accordance with the provisions of CEQA (CEQA Guidelines, §§ 15126.4(a)(4)(B), 15064, 15065, and 16355). In order for mitigation measures to be effective, they must be specific, enforceable, and feasible actions that will improve environmental conditions. As set forth in more detail in Appendix A, the current scientific literature supports the conclusion that mitigation for permanent habitat loss necessitates replacement with an equivalent or greater habitat area for breeding, foraging, wintering, dispersal, presence of burrows, burrow surrogates, presence of fossorial mammal dens, well drained soils, and abundant and available prey within close proximity to the burrow.

MITIGATION METHODS The current scientific literature indicates that any site-specific avoidance or mitigation measures developed should incorporate the best practices presented below or other practices confirmed by experts and the Department. The Department is available to assist in the development of site-specific avoidance and mitigation measures. Avoiding. A primary goal is to design and implement projects to seasonally and spatially avoid negative impacts and disturbances that could result in take of burrowing owls, nests, or eggs. Other avoidance measures may include but not be limited to:      

Avoid disturbing occupied burrows during the nesting period, from 1 February through 31 August. Avoid impacting burrows occupied during the non-breeding season by migratory or non-migratory resident burrowing owls. Avoid direct destruction of burrows through chaining (dragging a heavy chain over an area to remove shrubs), disking, cultivation, and urban, industrial, or agricultural development. Develop and implement a worker awareness program to increase the on-site worker’s recognition of and commitment to burrowing owl protection. Place visible markers near burrows to ensure that farm equipment and other machinery does not collapse burrows. Do not fumigate, use treated bait or other means of poisoning nuisance animals in areas where burrowing owls are known or suspected to occur (e.g., sites observed with nesting

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

owls, designated use areas). Restrict the use of treated grain to poison mammals to the months of January and February.

Take avoidance (pre-construction) surveys. Take avoidance surveys are intended to detect the presence of burrowing owls on a project site at a fixed period in time and inform necessary take avoidance actions. Take avoidance surveys may detect changes in owl presence such as colonizing owls that have recently moved onto the site, migrating owls, resident burrowing owls changing burrow use, or young of the year that are still present and have not dispersed. Refer to Appendix D for take avoidance survey methodology. Site surveillance. Burrowing owls may attempt to colonize or re-colonize an area that will be impacted; thus, the current scientific literature indicates a need for ongoing surveillance at the project site during project activities is recommended. The surveillance frequency/effort should be sufficient to detect burrowing owls if they return. Subsequent to their new occupancy or return to the site, take avoidance measures should assure with a high degree of certainty that take of owls will not occur. Minimizing. If burrowing owls and their habitat can be protected in place on or adjacent to a project site, the use of buffer zones, visual screens or other measures while project activities are occurring can minimize disturbance impacts. Conduct site-specific monitoring to inform development of buffers (see Visibility and sensitivity above). The following general guidelines for implementing buffers should be adjusted to address site-specific conditions using the impact assessment approach described above. The CEQA lead agency and/or project proponent is encouraged to consult with the Department and other burrowing owl experts for assistance in developing site-specific buffer zones and visual screens. Buffers. Holroyd et al. (2001) identified a need to standardize management and disturbance mitigation guidelines. For instance, guidelines for mitigating impacts by petroleum industries on burrowing owls and other prairie species (Scobie and Faminow, 2000) may be used as a template for future mitigation guidelines (Holroyd et al. 2001). Scobie and Faminow (2000) developed guidelines for activities around occupied burrowing owl nests recommending buffers around low, medium, and high disturbance activities, respectively (see below). Recommended restricted activity dates and setback distances by level of disturbance for burrowing owls (Scobie and Faminow 2000). Location

Time of Year

Nesting sites Nesting sites Nesting sites

April 1-Aug 15 Aug 16-Oct 15 Oct 16-Mar 31

Low 200 m* 200 m 50 m

Level of Disturbance Med 500 m 200 m 100 m

High 500 m 500 m 500 m

* meters (m) Based on existing vegetation, human development, and land uses in an area, resource managers may decide to allow human development or resource extraction closer to these area/sites than recommended above. However, if it is decided to allow activities closer than

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the setback distances recommended, a broad-scale, long-term, scientifically-rigorous monitoring program ensures that burrowing owls are not detrimentally affected by alternative approaches. Other minimization measures include eliminating actions that reduce burrowing owl forage and burrowing surrogates (e.g. ground squirrel), or introduce/facilitate burrowing owl predators. Actions that could influence these factors include reducing livestock grazing rates and/or changing the timing or duration of grazing or vegetation management that could result in less suitable habitat. Burrow exclusion and closure. Burrow exclusion is a technique of installing one-way doors in burrow openings during the non-breeding season to temporarily exclude burrowing owls, or permanently exclude burrowing owls and close burrows after verifying burrows are empty by site monitoring and scoping. Exclusion in and of itself is not a take avoidance, minimization or mitigation method. Eviction of burrowing owls is a potentially significant impact under CEQA. The long-term demographic consequences of these techniques have not been thoroughly evaluated, and the fate of evicted or excluded burrowing owls has not been systematically studied. Because burrowing owls are dependent on burrows at all times of the year for survival and/or reproduction, evicting them from nesting, roosting, and satellite burrows may lead to indirect impacts or take. Temporary or permanent closure of burrows may result in significant loss of burrows and habitat for reproduction and other life history requirements. Depending on the proximity and availability of alternate habitat, loss of access to burrows will likely result in varying levels of increased stress on burrowing owls and could depress reproduction, increase predation, increase energetic costs, and introduce risks posed by having to find and compete for available burrows. Therefore, exclusion and burrow closure are not recommended where they can be avoided. The current scientific literature indicates consideration of all possible avoidance and minimization measures before temporary or permanent exclusion and closure of burrows is implemented, in order to avoid take. The results of a study by Trulio (1995) in California showed that burrowing owls passively displaced from their burrows were quickly attracted to adjacent artificial burrows at five of six passive relocation sites. The successful sites were all within 75 meters (m) of the destroyed burrow, a distance generally within a pair's territory. This researcher discouraged using passive relocation to artificial burrows as a mitigation measure for lost burrows without protection of adjacent foraging habitat. The study results indicated artificial burrows were used by evicted burrowing owls when they were approximately 50-100 m from the natural burrow (Thomsen 1971, Haug and Oliphant 1990). Locating artificial or natural burrows more than 100 m from the eviction burrow may greatly reduce the chances that new burrows will be used. Ideally, exclusion and burrow closure is employed only where there are adjacent natural burrows and non-impacted, sufficient habitat for burrowing owls to occupy with permanent protection mechanisms in place. Any new burrowing owl colonizing the project site after the CEQA document has been adopted may constitute changed circumstances that should be addressed in a re-circulated CEQA document. The current scientific literature indicates that burrow exclusion should only be conducted by qualified biologists (meeting the Biologist’s Qualifications above) during the non-breeding

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season, before breeding behavior is exhibited and after the burrow is confirmed empty by site surveillance and/or scoping. The literature also indicates that when temporary or permanent burrow exclusion and/or burrow closure is implemented, burrowing owls should not be excluded from burrows unless or until:   



A Burrowing Owl Exclusion Plan (see Appendix E) is developed and approved by the applicable local DFG office; Permanent loss of occupied burrow(s) and habitat is mitigated in accordance with the Mitigating Impacts sections below. Temporary exclusion is mitigated in accordance with the item #1 under Mitigating Impacts below. Site monitoring is conducted prior to, during, and after exclusion of burrowing owls from their burrows sufficient to ensure take is avoided. Conduct daily monitoring for one week to confirm young of the year have fledged if the exclusion will occur immediately after the end of the breeding season. Excluded burrowing owls are documented using artificial or natural burrows on an adjoining mitigation site (if able to confirm by band re-sight).

Translocation (Active relocation offsite >100 meters). At this time, there is little published information regarding the efficacy of translocating burrowing owls, and additional research is needed to determine subsequent survival and breeding success (Klute et al. 2003, Holroyd et al. 2001). Study results for translocation in Florida implied that hatching success may be decreased for populations of burrowing owls that undergo translocation (Nixon 2006). At this time, the Department is unable to authorize the capture and relocation of burrowing owls except within the context of scientific research (FGC §1002) or a NCCP conservation strategy. Mitigating impacts. Habitat loss and degradation from rapid urbanization of farmland in the core areas of the Central and Imperial valleys is the greatest of many threats to burrowing owls in California (Shuford and Gardali, 2008). At a minimum, if burrowing owls have been documented to occupy burrows (see Definitions, Appendix B) at the project site in recent years, the current scientific literature supports the conclusion that the site should be considered occupied and mitigation should be required by the CEQA lead agency to address project-specific significant and cumulative impacts. Other site-specific and regionally significant and cumulative impacts may warrant mitigation. The current scientific literature indicates the following to be best practices. If these best practices cannot be implemented, the lead agency or lead investigator may consult with the Department to develop effective mitigation alternatives. The Department is also available to assist in the identification of suitable mitigation lands. 1.

2.

Where habitat will be temporarily disturbed, restore the disturbed area to pre-project condition including decompacting soil and revegetating. Permanent habitat protection may be warranted if there is the potential that the temporary impacts may render a nesting site (nesting burrow and satellite burrows) unsustainable or unavailable depending on the time frame, resulting in reduced survival or abandonment. For the latter potential impact, see the permanent impact measures below. Mitigate for permanent impacts to nesting, occupied and satellite burrows and/or burrowing owl habitat such that the habitat acreage, number of burrows and burrowing owls impacted are replaced based on the information provided in Appendix A. Note: A

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minimum habitat replacement recommendation is not provided here as it has been shown to serve as a default, replacing any site-specific analysis and discounting the wide variation in natal area, home range, foraging area, and other factors influencing burrowing owls and burrowing owl population persistence in a particular area. 3. Mitigate for permanent impacts to nesting, occupied and satellite burrows and burrowing owl habitat with (a) permanent conservation of similar vegetation communities (grassland, scrublands, desert, urban, and agriculture) to provide for burrowing owl nesting, foraging, wintering, and dispersal (i.e., during breeding and non-breeding seasons) comparable to or better than that of the impact area, and (b) sufficiently large acreage, and presence of fossorial mammals. The mitigation lands may require habitat enhancements including enhancement or expansion of burrows for breeding, shelter and dispersal opportunity, and removal or control of population stressors. If the mitigation lands are located adjacent to the impacted burrow site, ensure the nearest neighbor artificial or natural burrow clusters are at least within 210 meters (Fisher et al. 2007). 4. Permanently protect mitigation land through a conservation easement deeded to a nonprofit conservation organization or public agency with a conservation mission, for the purpose of conserving burrowing owl habitat and prohibiting activities incompatible with burrowing owl use. If the project is located within the service area of a Departmentapproved burrowing owl conservation bank, the project proponent may purchase available burrowing owl conservation bank credits. 5. Develop and implement a mitigation land management plan to address long-term ecological sustainability and maintenance of the site for burrowing owls (see Management Plan and Artificial Burrow sections below, if applicable). 6. Fund the maintenance and management of mitigation land through the establishment of a long-term funding mechanism such as an endowment. 7. Habitat should not be altered or destroyed, and burrowing owls should not be excluded from burrows, until mitigation lands have been legally secured, are managed for the benefit of burrowing owls according to Department-approved management, monitoring and reporting plans, and the endowment or other long-term funding mechanism is in place or security is provided until these measures are completed. 8. Mitigation lands should be on, adjacent or proximate to the impact site where possible and where habitat is sufficient to support burrowing owls present. 9. Where there is insufficient habitat on, adjacent to, or near project sites where burrowing owls will be excluded, acquire mitigation lands with burrowing owl habitat away from the project site. The selection of mitigation lands should then focus on consolidating and enlarging conservation areas located outside of urban and planned growth areas, within foraging distance of other conserved lands. If mitigation lands are not available adjacent to other conserved lands, increase the mitigation land acreage requirement to ensure a selected site is of sufficient size. Offsite mitigation may not adequately offset the biological and habitat values impacted on a one to one basis. Consult with the Department when determining offsite mitigation acreages. 10. Evaluate and select suitable mitigation lands based on a comparison of the habitat attributes of the impacted and conserved lands, including but not limited to: type and structure of habitat being impacted or conserved; density of burrowing owls in impacted and conserved habitat; and significance of impacted or conserved habitat to the species range-wide. Mitigate for the highest quality burrowing owl habitat impacted first and foremost when identifying mitigation lands, even if a mitigation site is located outside of

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a lead agency’s jurisdictional boundary, particularly if the lead agency is a city or special district. 11. Select mitigation lands taking into account the potential human and wildlife conflicts or incompatibility, including but not limited to, human foot and vehicle traffic, and predation by cats, loose dogs and urban-adapted wildlife, and incompatible species management (i.e., snowy plover). 12. Where a burrowing owl population appears to be highly adapted to heavily altered habitats such as golf courses, airports, athletic fields, and business complexes, permanently protecting the land, augmenting the site with artificial burrows, and enhancing and maintaining those areas may enhance sustainability of the burrowing owl population onsite. Maintenance includes keeping lands grazed or mowed with weedeaters or push mowers, free from trees and shrubs, and preventing excessive human and human-related disturbance (e.g., walking, jogging, off-road activity, dog-walking) and loose and feral pets (chasing and, presumably, preying upon owls) that make the environment uninhabitable for burrowing owls (Wesemann and Rowe 1985, Millsap and Bear 2000, Lincer and Bloom 2007). Items 4, 5 and 6 also still apply to this mitigation approach. 13. If there are no other feasible mitigation options available and a lead agency is willing to establish and oversee a Burrowing Owl Mitigation and Conservation Fund that funds on a competitive basis acquisition and permanent habitat conservation, the project proponent may participate in the lead agency’s program. Artificial burrows. Artificial burrows have been used to replace natural burrows either temporarily or long-term and their long-term success is unclear. Artificial burrows may be an effective addition to in-perpetuity habitat mitigation if they are augmenting natural burrows, the burrows are regularly maintained (i.e., no less than annual, with biennial maintenance recommended), and surrounding habitat patches are carefully maintained. There may be some circumstances, for example at airports, where squirrels will not be allowed to persist and create a dynamic burrow system, where artificial burrows may provide some support to an owl population. Many variables may contribute to the successful use of artificial burrows by burrowing owls, including pre-existence of burrowing owls in the area, availability of food, predators, surrounding vegetation and proximity, number of natural burrows in proximity, type of materials used to build the burrow, size of the burrow and entrance, direction in which the burrow entrance is facing, slope of the entrance, number of burrow entrances per burrow, depth of the burrow, type and height of perches, and annual maintenance needs (Belthoff and King 2002, Smith et al. 2005, Barclay et al. 2011). Refer to Barclay (2008) and (2011) and to Johnson et al. 2010 (unpublished report) for guidance on installing artificial burrows including recommendations for placement, installation and maintenance. Any long-term reliance on artificial burrows as natural burrow replacements must include semi-annual to annual cleaning and maintenance and/or replacement (Barclay et al. 2011, Smith and Conway 2005, Alexander et al. 2005) as an ongoing management practice. Alexander et al. (2005), in a study of the use of artificial burrows found that all of 20 artificial burrows needed some annual cleaning and maintenance. Burrows were either excavated by predators, blocked by soil or vegetation, or experienced substrate erosion forming a space beneath the tubing that prevented nestlings from re-entering the burrow.

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Mitigation lands management plan. Develop a Mitigation Lands Management Plan for projects that require off-site or on-site mitigation habitat protection to ensure compliance with and effectiveness of identified management actions for the mitigation lands. A suggested outline and related vegetation management goals and monitoring success criteria can be found in Appendix E. Mitigation Monitoring and Reporting Verify the compliance with required mitigation measures, the accuracy of predictions, and ensure the effectiveness of all mitigation measures for burrowing owls by conducting followup monitoring, and implementing midcourse corrections, if necessary, to protect burrowing owls. Refer to CEQA Guidelines Section 15097 and the CEQA Guidelines for additional guidance on mitigation, monitoring and reporting. Monitoring is qualitatively different from site surveillance; monitoring normally has a specific purpose and its outputs and outcomes will usually allow a comparison with some baseline condition of the site before the mitigation (including avoidance and minimization) was undertaken. Ideally, monitoring should be based on the Before-After Control-Impact (BACI) principle (McDonald et al. 2000) that requires knowledge of the pre-mitigation state to provide a reference point for the state and change in state after the project and mitigation have been implemented.

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ACKNOWLEDGEMENTS We thank Jack Barclay, Jeff Lincer, David Plumpton, Jeff Kidd, Carol Roberts and other reviewers for their valuable comments on this report. We also want to acknowledge all the hard work of the Department team, especially T. Bartlett, K. Riesz, S. Wilson, D. Gifford, D. Mayer, J. Gan, L. Connolly, D. Mayer, A. Donlan, L. Bauer, L. Comrack, D. Lancaster, E. Burkett, B. Johnson, D. Johnston, A. Gonzales, S. Morey and K. Hunting.

REFERENCES Alexander, A. K., M. R. Sackschewsky, and C. A. Duberstein. 2005. Use of artificial burrows by burrowing owls (athene cunicularia) at the HAMMER Facility on the U.S. Department of Energy Hanford Site. Pacific Northwest National Lab-15414. U.S. Department of Energy, DE-AC05-76RL01830, Richland, Washington, USA. BIOS. California Department of Fish and Game. The Biogeographic Information Observation System (http://bios.dfg.ca.gov/) Barclay, J. H. 2008. A simple artificial burrow design for burrowing owls. Journal of Raptor Research. 42: 53-57. Barclay, J. H. 2012. Albion Environmental, Inc, personal communication. Barclay, J. H., K. W. Hunting, J. L. Lincer, J. Linthicum, and T. A. Roberts, editors. 2007. Proceedings of the California Burrowing Owl Symposium, 11-12 November 2003, Sacramento, California, USA. Bird Populations Monographs No. 1. The Institute for Bird Populations and Albion Environmental, Inc., Point Reyes Station, CA. Barclay, J. H., N. Korfanta, and M. Kauffman. 2011. Long-term population dynamics of a managed burrowing owl colony. Journal of Wildlife Management 75: 1295–1306. Belthoff, J R., R. A. King. 2002. Nest-site characteristics of burrowing owls (athene cunicularia) in the Snake River Birds of Prey National Conservation Area, Idaho, and applications to artificial burrow installation. Western North American Naturalist 62: 112119. Botelho, E. S. 1996. Behavioral ecology and parental care of breeding western burrowing owls (Speotyto cunicularia hupugaea) in southern New Mexico, USA. Dissertation, New Mexico State University, Las Cruces, New Mexico, USA. Burkett, E. E., and B. S. Johnson. 2007. Development of a conservation strategy for burrowing owls in California. Pages 165-168 in J. H. Barclay, K. W. Hunting, J. L. Lincer, J. Linthicum, and T. A. Roberts, editors. Proceedings of the California Burrowing Owl Symposium, 11-12 November 2003, Sacramento, California, USA. Bird Populations Monographs No. 1. The Institute for Bird Populations and Albion Environmental, Inc., Point Reyes Station, CA. CBOC (California Burrowing Owl Consortium). 1997. Burrowing owl survey protocol and mitigation guidelines. Pages 171-177 in Lincer, J. L. and K. Steenhof (editors). 1997. The burrowing owl, its biology and management. Raptor Research Report Number 9. CDFG (California Department of Fish and Game). 1995. Staff report on burrowing owl mitigation. Unpublished report. Sacramento, California, USA. CNDDB. California Department of Fish and Game. The California Natural Diversity Database (CNDDB) (http://www.dfg.ca.gov/biogeodata/cnddb/), Sacramento, California, USA. Catlin, D. H. 2004. Factors affecting within-season and between-season breeding dispersal of Burrowing Owls in California. Thesis, Oregon State University, Corvallis, Oregon, USA 03/7/12 DFG BUOW Staff Report

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Catlin, D. H., and D. K. Rosenberg. 2006. Nest destruction increases mortality and dispersal of Burrowing Owls in the Imperial Valley, California. Southwest Naturalist 51: 406–409. Catlin, D. H., D. K. Rosenberg, and K. L. Haley. 2005. The effects of nesting success and mate fidelity on breeding dispersal in burrowing owls. Canadian Journal of Zoology 83:1574–1580. Conway, C. J., and J. Simon. 2003. Comparison of detection probability associated with burrowing owl survey methods. Journal of Wildlife Management 67: 501-511. Conway, C. J., V. Garcia, M. D., and K. Hughes. 2008. Factors affecting detection of burrowing owl nests during standardized surveys. Journal of Wildlife Management 72: 688-696. Coulombe, H. N. 1971. Behavior and population ecology of the burrowing owl, Speotyto cunicularia, in the Imperial Valley of California. Condor 73: 162–176. Dechant, J. A., M. L. Sondreal, D. H. Johnson, L. D. Igl, C. M. Goldade, P. A. Rabie, and B. R. Euliss. 2003. Effects of management practices on grassland birds: burrowing owl. Northern Prairie Wildlife Research Center, Jamestown, North Dakota. Northern Prairie Wildlife Research Center Online. . DeSante, D. F., E. D Ruhlen, and R. Scalf. 2007. The distribution and relative abundance of burrowing owls in California during 1991–1993: Evidence for a declining population and thoughts on its conservation. Pages 1-41 in J. H. Barclay, K. W. Hunting, J. L. Lincer, J. Linthicum, and T. A. Roberts, editors. Proceedings of the California Burrowing Owl Symposium, 11-12 November 2003 Sacramento, California, USA. Bird Populations Monographs No. 1. The Institute for Bird Populations and Albion Environmental, Inc., Point Reyes Station, CA. Desmond, M. J., and J. A. Savidge. 1998. Burrowing Owl conservation in the Great Plains. Proceedings of the Second International Burrowing Owl Symposium, 29-30 September 1999, Ogden, Utah, USA. Desmond, M. J., and J. A. Savidge. 1999. Satellite burrow use by burrowing owl chicks and its influence on nest fate. Pages 128-130 in P. D. Vickery and J. R. Herkert, editors. Ecology and conservation of grassland birds of the western hemisphere. Studies in Avian Biology 19. Emlen, J. T. 1977. Estimating breeding season bird densities from transects counts. Auk 94: 455-468. Fisher, J. B., L. A. Trulio, G. S. Biging, and D. Chromczack. 2007. An analysis of spatial clustering and implications for wildlife management: a burrowing owl example. Environmental Management 39: 403-11. Gervais, J. A., D. K. Rosenberg, and L. A. Comrack. Burrowing Owl (Athene cunicularia) in Shuford, W.D. and T. Gardali, editors. 2008. California Bird Species of Special Concern: A ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California, and California Department of Fish and Game, Sacramento, California, USA. Gervais, J. A., D. K. Rosenberg, R. G. Anthony. 2003. Space use and pesticide exposure risk of male burrowing owls in an agricultural landscape. Journal of Wildlife Management 67: 155-164. Green, G.A.; Anthony, R.G. 1989. Nesting success and habitat relationships of burrowing owls in the Columbia Basin, Oregon. The Condor 91: 347-354. Haug, E. A. 1985. Observations on the breeding ecology of burrowing owls in Saskatchewan.

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Thesis, University of Saskatchewan, Saskatoon, Saskatchewan, Canada. Haug, E. A., B. A. Millsap, and M. S. Martell. 1993. Burrowing owl (Speotyto cunicularia), in A. Poole and F. Gill, editors, The Birds of North America, The Academy of Natural Sciences, Philadelphia, Pennsylvania, and The American Ornithologists’ Union, Washington, D.C., USA. Haug, E. A., and L. W. Oliphant. 1990. Movements, activity patterns, and habitat use of burrowing owls in Saskatchewan. Journal of Wildlife Management 54: 27-35. Holroyd, G. L., R. Rodriguez-Estrella, and S. R. Sheffield. 2001. Conservation of the burrowing owl in western North America: issues, challenges, and recommendations. Journal of Raptor Research 35: 399-407. James, P. C., T. J. Ethier, and M. K. Toutloff. 1997. Parameters of a declining burrowing owl population in Saskatchewan. Pages 34-37. in J. L. Lincer, and K. Steenhof, editors. The burrowing owl, its biology and management: including the proceedings of the first international symposium. 13-14 November 1992, Bellevue, WA, USA. Raptor Research Report Number 9. Johnson, D. H., D. C. Gillis, M. A. Gregg, J. L.Rebholz, J. L. Lincer, and J. R. Belthoff. 2010. Users guide to installation of artificial burrows for burrowing owls. Unpublished report. Tree Top Inc., Selah, Washington, USA. Klute, D. S., A. W. Ayers, M. T. Green, W. H. Howe, S. L Jones, J. A. Shaffer, S. R. Sheffield, and T. S. Zimmerman. 2003. Status assessment and conservation plan for the western burrowing owl in the United States. U.S. Department of the Interior, Fish and Wildlife Service, Biological Technical Publication FWS/BTP-R6001-2003, Washington, D.C, USA. Koenig, W. D., D. D. Van Vuren, and P. N. Hooge. 1996. Detectability, philopatry, and the distribution of dispersal distances in vertebrates. Trends in Ecology and Evolution 11: 514–517. LaFever, D. H., K. E. LaFever, D. H. Catlin, and D. K. Rosenberg. 2008. Diurnal time budget of burrowing owls in a resident population during the non-breeding season. Southwestern Naturalist 53: 29-33. Lincer, J. L., and P. W. Bloom. 2007. The status of the burrowing owl (Athene cunicularia) in San Diego County, CA. Pages 90-102 in Proceedings of the California Burrowing Owl Symposium, 11-12 November 2003, Sacramento, California, USA. Bird Populations Monographs No. 1. The Institute for Bird Populations and Albion Environmental, Inc., Point Reyes Station, CA. Lutz, R. S. and D. L. Plumpton. 1999. Philopatry and nest site reuse by burrowing owls: implications for management. Journal of Raptor Research 33: 149-153. MacCracken, J. G., D. W. Uresk, and R. M. Hansen. 1985a. Vegetation and soils of burrowing owl nest sites in Conata Basin, South Dakota. Condor 87: 152-154. Manning, J. A., and R. S. A. Kaler. 2011. Effects of survey methods on burrowing owl behaviors. Journal of Wildlife Management 75: 525-30. McDonald, T. L., W. P. Erickson, and L. L. McDonald. 2000. Analysis of count data from before-after control-impact studies. Journal of Agricultural, Biological and Environmental Statistics 5: 262-279. Millsap, B. A., and C. Bear. 2000. Density and reproduction of burrowing owls along an urban development gradient. Journal of Wildlife Management 64:33-41. Nixon, P A. 2006. Effects of translocation on the Florida burrowing owl (Athene cunicularia floridana). Thesis. University of South Florida, Tampa, Florida, USA. Noss, R. F., M. A. O’Connell, and D. D. Murphy. 1997. The science of conservation planning:

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habitat conservation under the Endangered Species Act. Island Press, Washington D.C., USA. Postovit, H. R., and B. C. Postovit. 1987. Impacts and mitigation techniques. Pages 183-213 in Raptor management techniques manual scientific technical series number 10, National Wildlife Federation, Washington, D. C., USA Remsen, J. V., Jr. 1978. Bird species of special concern in California: An annotated list of declining or vulnerable bird species. California Department of Fish and Game, Nongame Wildlife. Investigations, Wildlife Management Branch Administrative Report 78-1, Sacramento, California, USA. Rich, T. 1984. Monitoring burrowing owl populations: implications of burrow re-use. Wildlife Society Bulletin 12: 178-189. Richardson, C. T. and C. K. Miller. 1997. Recommendations for protecting raptors from human disturbance: a review. Wildlife Society Bulletin 25: 634-38. Ronan, N. A. 2002. Habitat selection, reproductive success, and site fidelity of burrowing owls in a grassland ecosystem. Thesis, Oregon State University, Corvallis, Oregon, USA. Rosenberg, D., 2009 Oregon State University, Corvallis, personal communication. Rosenberg, D. K., J. A. Gervais, D. F. DeSante, and H. Ober. 2009. An updated adaptive management plan for the burrowing owl population at NAS Lemoore. The Oregon Wildlife Institute, Corvallis, OR and The Institute for Bird Populations, Point Reyes Station, CA. OWI Contribution No. 201 and IBP Contribution No. 375. Rosenberg, D. K., J. A. Gervais, H. Ober, and D. F. DeSante. 1998. An adaptive management plan for the burrowing owl population at Naval Air Station Lemoore, California, USA. Publication 95, Institute for Bird Populations, P.O. Box 1346, Pt. Reyes Station, CA 94956. Rosenberg, D. K., and K. L. Haley. 2004. The ecology of burrowing owls in the agroecosystem of the Imperial Valley, California. Studies in Avian Biology 27:120-135. Rosenberg, D. K., L. A. Trulio, D. H. Catlin, D. Chromczack, J. A. Gervais, N. Ronan, and K. A. Haley. 2007. The ecology of the burrowing owl in California, unpublished report to Bureau of Land Management. Rosier, J. R., N. A., Ronan, and D. K. Rosenberg. 2006. Post-breeding dispersal of burrowing owls in an extensive California grassland. American Midland Naturalist 155: 162–167. Sawyer, J. O., T. Keeler-Wolf, and J. M. Evens. 2009. A manual of California vegetation, Second edition. California Native Plant Society, Sacramento, California, USA. Scobie, D., and C. Faminow. 2000. Development of standardized guidelines for petroleum industry activities that affect COSEWIC Prairie and Northern Region vertebrate species at risk. Environment Canada, Prairie and Northern Region, Edmonton, Alberta, Canada. Shuford, W. D. and T. Gardali, editors. 2008. California Bird Species of Special Concern: a ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California, and California Department of Fish and Game, Sacramento. Gervais, J. A., D. K. Rosenberg, and L. Comrack. 2008. Burrowing Owl (Athene cunicularia). Smith, M. D., C. J. Conway, and L. A. Ellis. 2005. Burrowing owl nesting productivity: a comparison between artificial and natural burrows on and off golf courses. Wildlife Society Bulletin 33: 454-462. Thelander, C. G., K. S. Smallwood, and L. Rugge. 2003. Bird risk behaviors and fatalities at the Altamont Pass Wind Resource Area, period of performance: March 1998–

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December 2000. U.S. Department of Energy, National Renewable Energy Laboratory, Golden, Colorado, USA. Thomsen, L. 1971. Behavior and ecology of burrowing owls on the Oakland Municipal Airport. Condor 73: 177-192. Thompson, C. D. 1984. Selected aspects of burrowing owl ecology in central Wyoming. Thesis, University of Wyoming, Laramie, Wyoming, USA. Trulio, L. 1995. Passive relocation: A method to preserve burrowing owls on disturbed sites. Journal of Field Ornithology 66: 99–106. U.S. Fish and Wildlife Service (USFWS). 2002. Birds of conservation concern 2002. U.S. Department of Interior, Division of Migratory Bird Management, Arlington, Virginia, USA. U.S. Fish and Wildlife Service (USFWS). 2008. Birds of Conservation Concern 2008. U.S. Department of Interior, Division of Migratory Bird Management, Arlington, Virginia, USA. Wesemann, T. and M. Rowe. 1985. Factors influencing the distribution and abundance of burrowing owls in Cape Coral, Florida. Pages 129-137 in L. W. Adams and D. L. Leedy, editors. Integrating Man and Nature in the Metropolitan Environment. Proceedings National Symposium. on Urban Wildlife, 4-7 November 1986, Chevy Chase, Maryland, USA. Wilkerson, R. L. and R. B. Siegel. 2010. Assessing changes in the distribution and abundance of burrowing owls in California, 1993-2007. Bird Populations 10: 1-36. Zarn, M. 1974. Burrowing owl. U.S. Department of the Interior, Bureau of Land Management. Technical Note T-N-250, Denver, Colorado, USA.

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Appendix A. Burrowing Owl Natural History and Threats Diet Burrowing owl diet includes arthropods, small rodents, birds, amphibians, reptiles, and carrion (Haug et al. 1993). Breeding In California, the breeding season for the burrowing owl typically occurs between 1 February and 31 August although breeding in December has been documented (Thompson 1971, Gervais et al. 2008); breeding behavior includes nest site selection by the male, pair formation, copulation, egg laying, hatching, fledging, and post-fledging care of young by the parents. The peak of the breeding season occurs between 15 April and 15 July and is the period when most burrowing owls have active nests (eggs or young). The incubation period lasts 29 days (Coulombe 1971) and young fledge after 44 days (Haug et al. 1993). Note that the timing of nesting activities may vary with latitude and climatic conditions. Burrowing owls may change burrows several times during the breeding season, starting when nestlings are about three weeks old (Haug et al. 1993). Dispersal The following discussion is an excerpt from Gervais et al (2008): “The burrowing owl is often considered a sedentary species (e.g., Thomsen 1971). A large proportion of adults show strong fidelity to their nest site from year to year, especially where resident, as in Florida (74% for females, 83% for males; Millsap and Bear 1997). In California, nest-site fidelity rates were 32%–50% in a large grassland and 57% in an agricultural environment (Ronan 2002, Catlin 2004, Catlin et al. 2005). Differences in these rates among sites may reflect differences in nest predation rates (Catlin 2004, Catlin et al. 2005). Despite the high nest fidelity rates, dispersal distances may be considerable for both juveniles (natal dispersal) and adults (postbreeding dispersal), but this also varied with location (Catlin 2004, Rosier et al. 2006). Distances of 53 km to roughly 150 km have been observed in California for adult and natal dispersal, respectively (D. K. Rosenberg and J. A. Gervais, unpublished data), despite the difficulty in detecting movements beyond the immediate study area (Koenig et al. 1996).” Habitat The burrowing owl is a small, long-legged, ground-dwelling bird species, well-adapted to open, relatively flat expanses. In California, preferred habitat is generally typified by short, sparse vegetation with few shrubs, level to gentle topography and well-drained soils (Haug et al. 1993). Grassland, shrub steppe, and desert are naturally occurring habitat types used by the species. In addition, burrowing owls may occur in some agricultural areas, ruderal grassy fields, vacant lots and pastures if the vegetation structure is suitable and there are useable burrows and foraging habitat in proximity (Gervais et al 2008). Unique amongst North

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American raptors, the burrowing owl requires underground burrows or other cavities for nesting during the breeding season and for roosting and cover, year round. Burrows used by the owls are usually dug by other species termed host burrowers. In California, California ground squirrel (Spermophilus beecheyi) and round-tailed ground squirrel (Citellus tereticaudus) burrows are frequently used by burrowing owls but they may use dens or holes dug by other fossorial species including badger (Taxidea taxus), coyote (Canis latrans), and fox (e.g., San Joaquin kit fox, Vulpes macrotis mutica; Ronan 2002). In some instances, owls have been known to excavate their own burrows (Thompson 1971, Barclay 2007). Natural rock cavities, debris piles, culverts, and pipes also are used for nesting and roosting (Rosenberg et al. 1998). Burrowing owls have been documented using artificial burrows for nesting and cover (Smith and Belthoff, 2003). Foraging habitat. Foraging habitat is essential to burrowing owls. The following discussion is an excerpt from Gervais et al. (2008): “Useful as a rough guide to evaluating project impacts and appropriate mitigation for burrowing owls, adult male burrowing owls home ranges have been documented (calculated by minimum convex polygon) to comprise anywhere from 280 acres in intensively irrigated agroecosystems in Imperial Valley (Rosenberg and Haley 2004) to 450 acres in mixed agricultural lands at Lemoore Naval Air Station, CA (Gervais et al. 2003), to 600 acres in pasture in Saskatchewan, Canada (Haug and Oliphant 1990). But owl home ranges may be much larger, perhaps by an order of magnitude, in non-irrigated grasslands such as at Carrizo Plain, California (Gervais et al. 2008), based on telemetry studies and distribution of nests. Foraging occurs primarily within 600 m of their nests (within approximately 300 acres, based on a circle with a 600 m radius) during the breeding season.” Importance of burrows and adjacent habitat. Burrows and the associated surrounding habitat are essential ecological requisites for burrowing owls throughout the year and especially during the breeding season. During the non-breeding season, burrowing owls remain closely associated with burrows, as they continue to use them as refuge from predators, shelter from weather and roost sites. Resident populations will remain near the previous season’s nest burrow at least some of the time (Coulombe 1971, Thomsen 1971, Botelho 1996, LaFever et al. 2008). In a study by Lutz and Plumpton (1999) adult males and females nested in formerly used sites at similar rates (75% and 63%, respectively) (Lutz and Plumpton 1999). Burrow fidelity has been reported in some areas; however, more frequently, burrowing owls reuse traditional nesting areas without necessarily using the same burrow (Haug et al. 1993, Dechant et al. 1999). Burrow and nest sites are re-used at a higher rate if the burrowing owl has reproduced successfully during the previous year (Haug et al. 1993) and if the number of burrows isn’t limiting nesting opportunity. Burrowing owls may use “satellite” or non-nesting burrows, moving young at 10-14 days, presumably to reduce risk of predation (Desmond and Savidge 1998) and possibly to avoid nest parasites (Dechant et al. 1999). Successful nests in Nebraska had more active satellite burrows within 75 m of the nest burrow than unsuccessful nests (Desmond and Savidge

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1999). Several studies have documented the number of satellite burrows used by young and adult burrowing owls during the breeding season as between one and 11 burrows with an average use of approximately five burrows (Thompsen 1984, Haug 1985, Haug and Oliphant 1990). Supporting the notion of selecting for nest sites near potential satellite burrows, Ronan (2002) found burrowing owl families would move away from a nest site if their satellite burrows were experimentally removed through blocking their entrance. Habitat adjacent to burrows has been documented to be important to burrowing owls. Gervais et al. (2003) found that home range sizes of male burrowing owls during the nesting season were highly variable within but not between years. Their results also suggested that owls concentrate foraging efforts within 600 meters of the nest burrow, as was observed in Canada (Haug and Oliphant 1990) and southern California (Rosenberg and Haley 2004). James et al. (1997), reported habitat modification factors causing local burrowing owl declines included habitat fragmentation and loss of connectivity. In conclusion, the best available science indicates that essential habitat for the burrowing owl in California must include suitable year-round habitat, primarily for breeding, foraging, wintering and dispersal habitat consisting of short or sparse vegetation (at least at some time of year), presence of burrows, burrow surrogates or presence of fossorial mammal dens, well-drained soils, and abundant and available prey within close proximity to the burrow. Threats to Burrowing Owls in California Habitat loss. Habitat loss, degradation, and fragmentation are the greatest threats to burrowing owls in California. According to DeSante et al. (2007), “the vast majority of burrowing owls [now] occur in the wide, flat lowland valleys and basins of the Imperial Valley and Great Central Valley [where] for the most part,...the highest rates of residential and commercial development in California are occurring.” Habitat loss from the State’s long history of urbanization in coastal counties has already resulted in either extirpation or drastic reduction of burrowing owl populations there (Gervais et al. 2008). Further, loss of agricultural and other open lands (such as grazed landscapes) also negatively affect owl populations. Because of their need for open habitat with low vegetation, burrowing owls are unlikely to persist in agricultural lands dominated by vineyards and orchards (Gervais et al. 2008). Control of burrowing rodents. According to Klute et al. (2003), the elimination of burrowing rodents through control programs is a primary factor in the recent and historical decline of burrowing owl populations nationwide. In California, ground squirrel burrows are most often used by burrowing owls for nesting and cover; thus, ground squirrel control programs may affect owl numbers in local areas by eliminating a necessary resource. Direct mortality. Burrowing owls suffer direct losses from a number of sources. Vehicle collisions are a significant source of mortality especially in the urban interface and where owls nest alongside roads (Haug et al. 1993, Gervais et al. 2008). Road and ditch maintenance, modification of water conveyance structures (Imperial Valley) and discing to control weeds in fallow fields may destroy burrows (Rosenberg and Haley 2004, Catlin and Rosenberg 2006) which may trap or crush owls. Wind turbines at Altamont Pass Wind Resource Area are known to cause direct burrowing owl mortality (Thelander et al. 2003). Exposure to

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pesticides may pose a threat to the species but is poorly understood (Klute et al. 2003, Gervais et al. 2008).

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Appendix B. Definitions Some key terms that appear in this document are defined below. Adjacent habitat means burrowing owl habitat that abuts the area where habitat and burrows will be impacted and rendered non-suitable for occupancy. Breeding (nesting) season begins as early as 1 February and continues through 31 August (Thomsen 1971, Zarn 1974). The timing of breeding activities may vary with latitude and climatic conditions. The breeding season includes pairing, egg-laying and incubation, and nestling and fledging stages. Burrow exclusion is a technique of installing one-way doors in burrow openings during the non-breeding season to temporarily exclude burrowing owls or permanently exclude burrowing owls and excavate and close burrows after confirming burrows are empty. Burrowing owl habitat generally includes, but is not limited to, short or sparse vegetation (at least at some time of year), presence of burrows, burrow surrogates or presence of fossorial mammal dens, well-drained soils, and abundant and available prey. Burrow surrogates include culverts, piles of concrete rubble, piles of soil, burrows created along soft banks of ditches and canals, pipes, and similar structures. Civil twilight - Morning civil twilight begins when the geometric center of the sun is 6 degrees below the horizon (civil dawn) and ends at sunrise. Evening civil twilight begins at sunset and ends when the geometric center of the sun reaches 6 degrees below the horizon (civil dusk). During this period there is enough light from the sun that artificial sources of light may not be needed to carry on outdoor activities. This concept is sometimes enshrined in laws, for example, when drivers of automobiles must turn on their headlights (called lighting-up time in the UK); when pilots may exercise the rights to fly aircraft. Civil twilight can also be described as the limit at which twilight illumination is sufficient, under clear weather conditions, for terrestrial objects to be clearly distinguished; at the beginning of morning civil twilight, or end of evening civil twilight, the horizon is clearly defined and the brightest stars are visible under clear atmospheric conditions. Conservation for burrowing owls may include but may not be limited to protecting remaining breeding pairs or providing for population expansion, protecting and enhancing breeding and essential habitat, and amending or augmenting land use plans to stabilize populations and other specific actions to avoid the need to list the species pursuant to California or federal Endangered Species Acts. Contiguous means connected together so as to form an uninterrupted expanse in space. Essential habitat includes nesting, foraging, wintering, and dispersal habitat. Foraging habitat is habitat within the estimated home range of an occupied burrow, supports suitable prey base, and allows for effective hunting.

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Host burrowers include ground squirrels, badgers, foxes, coyotes, gophers etc. Locally significant species is a species that is not rare from a statewide perspective but is rare or uncommon in a local context such as within a county or region (CEQA §15125 (c)) or is so designated in local or regional plans, policies, or ordinances (CEQA Guidelines, Appendix G). Examples include a species at the outer limits of its known range or occurring in a unique habitat type. Non-breeding season is the period of time when nesting activity is not occurring, generally September 1 through January 31, but may vary with latitude and climatic conditions. Occupied site or occupancy means a site that is assumed occupied if at least one burrowing owl has been observed occupying a burrow within the last three years (Rich 1984). Occupancy of suitable burrowing owl habitat may also be indicated by owl sign including its molted feathers, cast pellets, prey remains, eggshell fragments, or excrement at or near a burrow entrance or perch site. Other impacting activities may include but may not be limited to agricultural practices, vegetation management and fire control, pest management, conversion of habitat from rangeland or natural lands to more intensive agricultural uses that could result in “take”. These impacting activities may not meet the definition of a project under CEQA. Passive relocation is a technique of installing one-way doors in burrow openings to temporarily or permanently evict burrowing owls and prevent burrow re-occupation. Peak of the breeding season is between 15 April and 15 July. Sign includes its tracks, molted feathers, cast pellets (defined as 1-2” long brown to black regurgitated pellets consisting of non-digestible portions of the owls’ diet, such as fur, bones, claws, beetle elytra, or feathers), prey remains, egg shell fragments, owl white wash, nest burrow decoration materials (e.g., paper, foil, plastic items, livestock or other animal manure, etc.), possible owl perches, or other items.

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Appendix C. Habitat Assessment and Reporting Details Habitat Assessment Data Collection and Reporting Current scientific literature indicates that it would be most effective to gather the data in the manner described below when conducting project scoping, conducting a habitat assessment site visit and preparing a habitat assessment report: 1. Conduct at least one visit covering the entire potential project/activity area including areas that will be directly or indirectly impacted by the project. Survey adjoining areas within 150 m (Thomsen 1971, Martin 1973), or more where direct or indirect effects could potentially extend offsite. If lawful access cannot be achieved to adjacent areas, surveys can be performed with a spotting scope or other methods. 2. Prior to the site visit, compile relevant biological information for the site and surrounding area to provide a local and regional context. 3. Check all available sources for burrowing owl occurrence information regionally prior to a field inspection. The CNDDB and BIOS (see References cited) may be consulted for known occurrences of burrowing owls. Other sources of information include, but are not limited to, the Proceedings of the California Burrowing Owl Symposium (Barclay et al. 2007), county bird atlas projects, Breeding Bird Survey records, eBIRD (http://ebird.org), Gervais et al. (2008), local reports or experts, museum records, and other site-specific relevant information. 4. Identify vegetation and habitat types potentially supporting burrowing owls in the project area and vicinity. 5. Record and report on the following information: a. A full description of the proposed project, including but not limited to, expected work periods, daily work schedules, equipment used, activities performed (such as drilling, construction, excavation, etc.) and whether the expected activities will vary in location or intensity over the project’s timeline; b. A regional setting map, showing the general project location relative to major roads and other recognizable features; c. A detailed map (preferably a USGS topo 7.5’ quad base map) of the site and proposed project, including the footprint of proposed land and/or vegetation-altering activities, base map source, identifying topography, landscape features, a north arrow, bar scale, and legend; d. A written description of the biological setting, including location (Section, Township, Range, baseline and meridian), acreage, topography, soils, geographic and hydrologic characteristics, land use and management history on and adjoining the site (i.e., whether it is urban, semi-urban or rural; whether there is any evidence of past or current livestock grazing, mowing, disking, or other vegetation management activities); e. An analysis of any relevant, historical information concerning burrowing owl use or occupancy (breeding, foraging, over-wintering) on site or in the assessment area; f. Vegetation type and structure (using Sawyer et al. 2009), vegetation height, habitat types and features in the surrounding area plus a reasonably sized (as supported with logical justification) assessment area; (Note: use caution in discounting habitat based on grass height as it can be a temporary condition variable by season and conditions (such as current grazing regime) or may be distributed as a mosaic). 03/7/12 DFG BUOW Staff Report

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g. The presence of burrowing owl individuals or pairs or sign (see Appendix B); h. The presence of suitable burrows and/or burrow surrogates (>11 cm in diameter (height and width) and >150 cm in depth) (Johnson et al. 2010), regardless of a lack of any burrowing owl sign and/or burrow surrogates; and burrowing owls and/or their sign that have recently or historically (within the last 3 years) been identified on or adjacent to the site.

03/7/12 DFG BUOW Staff Report

27

Appendix D. Breeding and Non-breeding Season Surveys and Reports Current scientific literature indicates that it is most effective to conduct breeding and nonbreeding season surveys and report in the manner that follows: Breeding Season Surveys Number of visits and timing. Conduct 4 survey visits: 1) at least one site visit between 15 February and 15 April, and 2) a minimum of three survey visits, at least three weeks apart, between 15 April and 15 July, with at least one visit after 15 June. Note: many burrowing owl migrants are still present in southwestern California during mid-March, therefore, exercise caution in assuming breeding occupancy early in the breeding season. Survey method. Rosenberg et al. (2007) confirmed walking line transects were most effective in smaller habitat patches. Conduct surveys in all portions of the project site that were identified in the Habitat Assessment and fit the description of habitat in Appendix A. Conduct surveys by walking straight-line transects spaced 7 m to 20 m apart, adjusting for vegetation height and density (Rosenberg et al. 2007). At the start of each transect and, at least, every 100 m, scan the entire visible project area for burrowing owls using binoculars. During walking surveys, record all potential burrows used by burrowing owls as determined by the presence of one or more burrowing owls, pellets, prey remains, whitewash, or decoration. Some burrowing owls may be detected by their calls, so observers should also listen for burrowing owls while conducting the survey. Care should be taken to minimize disturbance near occupied burrows during all seasons and not to “flush” burrowing owls especially if predators are present to reduce any potential for needless energy expenditure or burrowing owl mortality. Burrowing owls may flush if approached by pedestrians within 50 m (Conway et al. 2003). If raptors or other predators are present that may suppress burrowing owl activity, return at another time or later date for a follow-up survey. Check all burrowing owls detected for bands and/or color bands and report band combinations to the Bird Banding Laboratory (BBL). Some site-specific variations to survey methods discussed below may be developed in coordination with species experts and Department staff. Weather conditions. Poor weather may affect the surveyor’s ability to detect burrowing owls, therefore, avoid conducting surveys when wind speed is >20 km/hr, and there is precipitation or dense fog. Surveys have greater detection probability if conducted when ambient temperatures are >20º C, . ;-c

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Explanationof the Water ResourceAvailabilityRating Agricultural LESAModelwas TheWaterResourceAvailability factorin the California firmundercontractwiththe a consulting withNichols-Berman, developedin cooperation of this ratingis Department A thoroughdiscussion of the development of Conservation. presented Sfafewide LESA entitled, in report to the Department by Nichols-Berman a MethodologiesRepoil Project Sizeand WaterResourceAvailabilityFacfors(3). Duringthe would of thisfactorit becameapparentthatcertainconditionsuniqueto California development needto be represented in thissystem. First,it wasdecidedto classiflT waterreliabilitybaseduponthe effecfson agricultural pumps, production (suchas beingforcedto changeio lower-value crops,putttngin groundwater (such as a limitation or cuttingbackon theacreagefarmed)ratherthantheactualiype of limitation focused frequency, on thequantity, or duraiionof waterdelivery).LESAsystemshaveiraditionally aretoovariedin California on the latter.However,it wasfoundthatthe manytypesof limitations represenlin the LESAsystem.In the StatewideLESAsystem,theseeffectsare to adequately refenedto as resfricfions. and withcost. The historicalshortages Second,the factorhadto includean interrelation and of variousinterconnected dual of California wateruse hasledto theeslablishment unreliabillty is relatedwith cost- a morereliable systems.Probablymorethananyotherstate,reliability watersupplycansometimesbe obtained,butat a greatercost. Therefore,reslncflonswere cfassifiedintotwo majorcategories- phystbal andeconomic.Theseare separatedbecause, generally, a physicalrestriction is moreseverethanan economicrestrictionandthisshouldbe in the LESA systiem. reflected Third,the factorhadto includethe effectsof the droughtcyclein California'Duringthe watershortages.The areasof the stateexperienced droughtoflg8Tto 1992,manyagricultural areaswereableto actions. Some impactof theseshortagesresultedin a numberof different measures. waterconservation avoidtheworsteffectsof thedroughtsimplyby implementing watersupplies,suchas by securingwatertransfersor Otherareaswereableto obtainadditional simplypumpingmoregroundwater, butat an increasein the overallpriceof water.Otheroptions shiftingcrops,replanting to highervaluecropsto offsetthe increasein waterprices,or inctuded duringa droughtyearshouldnot be restrictions leavinglandfatlow.A projectsitethatexperiences scoredas highas a similarprojectsitethatdoesnot. of irrigationfeasibilityandthe potential Theeasiestwayto makedeterminations ofwatersourcesis io investigate the croppinghistoryof the projectsite. Forinstance, resirictions wasthewatersupplyto the projectsitereducedby the localirrigationdistrictduringthe last dropto drought?lf the sitehasa groundwatersupply,do areagroundwaterlevelssometimes pump the water? to levelsthatforcemarkedlyhQherenergycosts 2I

(including whenihe sitehasrecentlyinstalled lf the historyof the projectsiteis unavailable {hattheproject an inigationsystem),tookat the historyof thegeneralarea. However,remember thanthe restof the region.Forinstance,the projectsitecould sitemayhavedifferentconditions havean olderwaterrightlhanothersin the region.Althoughcertainareasof the statehadsevere onwaterdeliveries duringthe lastdrcught,someparcelswithintheseareashadvery restrictions dueto moreseniorwaierrights.lf thiswas the casein the regionof the project securedeliveries site,checkthe dateof waterrightandcompareit withparcelsthat receivedtheirtotalallotment on waterdeliveries. districtshouldhaveinformation duringthe lastdrought.The localirrigation for a projectsiteshouldnotjustreflectthe Thescoringof waterresourceavailability past of waiersupplyin the it shouldbe a predictianof howthewatersystemwill adequacies of flowsto performin thefuture.For instance,a localjurisdiction mightfindthattheallocation reasons,whichwill for environmental streamandriversystemshasbeenrecentlyincreased decreasethefutureavailablesurfacewatersupply.ln thiscase,the pasthistoryof thesiteis not of futurewatersupplyandwatersystemperformance. an adequaterepresentation

3. Site Assessment- The SurroundingAgricultural Land Rating of a Determination of ihe sunoundingagricultural landuseratingis baseduponthe identification given project, project's both directly that land near a Influence" which is defined as "Zoneof {ZOl), by,the adjoiningandwithina de{ineddistanceaway,thatis likelyio influence,andbe influenced below, of the ZOI is described agrieultural landuse of the subjectprojectsite. Thedetermination with an examplein Figure1, andis illustrated Defininga Projecfs "Zone of lnfluence" Step 1. Locatethe proposedprojecton an appropriate mapand outlinethe areaanddimensions ofthe proposedprojectsite. Step 2. Determine containthe projectsite the smallestrectanglethatwillcompletely (Rectangle A). Step3. Createa secondrectangle(Rectangle B) thatextends0.25mile(1320feet) beyondRectangleA on all sides. Step 4. by RectangleB. ldentiffall parcelsthatarewithinor areintersected Step 5. Definethe projectsite's'2oneof influence" as the entireareaof all parcelsidentified in Step4, lessthe areaofthe proposedprojectfromStep1. providedin Figure1, ParcelsW, X, andY extendbeyond [|n the illustration RectangleB andarethereforeincludedin theireniiretyin definingtheprojectsiie's Zone of Influencel

23

Figurel: Defininga Project'sZoneof Influence !

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MeasuringSurroundingAgriculturalLand Step 1. thatis cunentlyproducing Calculate the percentage ofthe projecfsZoneof Influence fromthe Department agricultural crops. ffhis frgurecanbedeierminedusinginformation of WaterResources' tmportantFarmlandMapSeries,the Department of Conservation's land LandUseMapSeries,locallyderivedmaps,or directsiteinspection.Foragricultural land wheiherthe has mustbe madeconcerning thatis currentlyfallowed,a determination operalions, or sequenceduringnormalagricultural beenfallowedas partof a rotational use. Landthathas to a nonagricultural becausethe landhasbecomeformally"committed" generally includedin be or not should not becomeformallycommitted, whetherfallow Forfurther land. determining the proportion thatis agricultural oftheZoneof Influence of the information Land,referto the followingExplanation on the deftnitionof Committed Surrounding LandRaiingJ Agricultural Step 2. in Step1, assigna Basedon the percentage landin theZOI determined of agricultural project accordingto Table6, andenterthis Sunounding Agriculturai Landscoreto the scorein Line 5 of theFinal LESAScoresheet(fable 8) . Table 6. Surrounding Agricultural Land Rating

Suffounding Percentof Project's Land Zoneof Influence Agricultural Score in AqdculturalUse 90 - 100% 80-83 t?-Iv

7 0- 7 4 65-69 60-64 JC-CU

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Explanationof the SurroundingAgricultural Land Rating of the TheSunounding Agricultural LandRatingis designedto providea measurement project. The California to a subject Ievelof agricultural landusefor landsin closeproximity parcel ofihe conversionofan agricultural LESAModelratesthe potenlialsignificance Agricultural production one that highly than proportion more in agricultural a of suroundingland thathas large production. definition of a The landin agricultulal of surrounding hasa relativelysmallpercentage 'Zoneof Influence" quarter milefrom landsup to a minimumof one thataccountsfor sunounding for assessingan duringmodeldevelopment theprojectboundaryis the resultofseveraliterations landuse. In a simpleexample' sampleof surrounding areathatwillgenerallybe a representative thatis a a singleonequartermilesquareproject(160acres)wouldhavea Zoneof Influence minimumof e:ghttimesgreater(1280acres)thatthe parcelitself. Landwithina Zoneof Influence thatis observedto befallowwill requirea casebycase of land. The Department agficultural of whetherthislandshouldbe considered determination In in makingthisdetermination' lmportantFarmlandMapsmaybe of assistance Conservaiion's to as being produclion may be designated "committed" addition,landcurrentlyin agricultural FarmlandMappingand of Conservation's The Department development. fuiurenonagricultural Use,andis of LandCommittedto Nonagricultural Programhasa landusedesignation Monitoring by localelectedofficialsto nonagricultural commifted definedas "landthatis permanenlty by virtueof decisionswhichcannotbe reversedsimplyby a majorityvoteof a city development in an landmustbe so designated councilor countyboardof supervisors.The"commifted" (b) of either(a) or below: adoptedlocalgeneralplan,and mustalsomeetthe requirements approvals: (a). lt musthavereceivedoneof thefollowingfinaldiscretionary 1. 2. 3. 4.

map(approvedperthe SubdivisionMapAct); Tentativesubdivision MapAct)i Tentativeor finalparcelmap(approvedperihe Subdivision Code$65864); agreement(perGovernment Recordeddevelopment whichareanalogousto items#1-3 Otherdecisionsby a localgovemment aboveandwhichexhibitan elementof permanence.Zoningby itselfdoes commitment. notqualiffas a permanent

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26

(b) lt mustbe the subjectof oneof thefinalfscal commitments to financethecapital improvements specifically requiredforfuturedevelopment of the landin questionas shownbefow: 1. RecordedResolution of lntentto forma districtandlew an assessment: 2. Paymentof assessment; 3. Saleof bonds; 4. Bindingcontract,securedby bonds,guaranteeing installation of infrastructure; 5. Otherfiscalcommitments whichareanalogous to items#1-4 aboveand exhibitan elementof pemanence." Leadagenciesareencouraged LandCommitted to Nonagricultural Usewithina to identifiT projecfsZOI andmakethe determination production, be whetherthisland,whilestillin agricultural performedhere. considered nonagricultural landforthe purposesof the calculation

27

4. Site Assessment- The Surrounding ProtectedResource Land Rating an exiensionofthe Surrounding TheSunoundingProtectedResourceLandRatingis essentially resourcelandsarethose manner. Protected LandRating,andis scoredin a similar Agricultural usesof withor supportiveof agriculiural thatarecompatible landswithlongtermuserestrictions land. lncludedamongthemarethefollowing: r \MlliamsonAct contactedlands . Publiclyownedlandsmaintained as park,forest,or watershedresources that e Landswithagriculfural, wildlifehabitat,openspace,or othernaturalresourceeasements restrictthe conversion of suchlandto urbanor industrialuses. lnstructions fonthe Surrounding ProtectedResourceLand Rating Step1. (ZOl)areacalculated for a projectunderlhe Utilizingthesame'Zoneof Influence" of theZOIthatis Protected the percentage Sunounding Agricultural LandRaiing,calculate ResourceLand,as deflnedabove. Step 2. to ProtectedResourceLandscoreto the projectaccording Assigna Surrounding (Table I LESA Scoresheet Table7, andenterthisscoreon Line 6 ofthe Final ). Table 7. Surrounding ProtectedResourceLand Rating Percentof Projeci's Surrounding Zoneof lnfluence ProtectedResource Definedas Protected LandScore 90- 100% 80-89 75-79 70 -74 65-69 60-64

100Points

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Sectionlll. Weightingof Factorsand Final LESAScoring The CaliforniaLESAModelis weightedso that50 percentof the totalLESAscoreof a given projectis derivedfromthe LandEvaluation factors,and 50 percentfromthe SiteAssessment factorweightsarelistedbelow,withthesumof thefactorweightsrequiredto factors,lndividual equal100percent. LanCEvaluationFactors LandCapabilityClassification StorielndexRating

l3-/o

Land EvaluationSubtotal

50%

23"/o

Site AssessmentF?ctors ProjectSize WaterResourceAvailability Sunounding Agricultural Lands Surrounding ProtectedResourceLands

15o/o 15o/o 15o/o

Site AssessmentSubtotal

50%

Total LESAFactorWeighting

ii'/o

1O0o/o

line Eachfactoris measuredseparately{eachon 100pointscale)and enteredin the appropriate by in Column B of theFinal LESAScoresheet(Table8). Eachfactot'sscoreis thenmultiplied in indicated its respective factorweight,resultingin a weightedfactorscorein Column D as Table8. Theweighiedfactorscoresaresummed,yieldinga TotalLESAScore(100points maximum) fof a givenproject,whichis enteredin Line 7 of Column D.

29

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