Section 4.3 Biological Resources Introduction

Draft Environmental Impact Report Rosamond Solar by SGS Antelope Valley Development, LLC 4.3‐1

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Section 4.3 Biological Resources

4.3.1 Introduction This section evaluates the potential impacts of the proposed project on biological resources, describes the environmental and regulatory setting for the project, and discusses mitigation measures to reduce impacts, where applicable.

The information in this section is based on a CDFG Natural Diversity Database (CNDDB) records search of the Tylerhorse Canyon, Willow Springs, Little Buttes, Fairmont Butte, and Lake Hughes U.S. Geological Survey (USGS) 7.5‐minute quadrangles (CDFG, 2010); a search of the California Native Plant Society’s (CNPS’s) 2010 online Inventory of Rare and Endangered Plants of California for the Tylerhorse Canyon, Willow Springs, Little Buttes, Fairmont Butte, and Lake Hughes USGS 7.5‐minute quadrangles (CNPS, 2010); a review of the CDFG 2009 Special Animals List (CDFG, 2009); reconnaissance‐level surveys conducted for the Mojave ground squirrel (Leitner, 2009), desert tortoise (A.E. Karl & Associates, 2010), burrowing owl (Bloom Biological, Inc, 2009), and Swainson’s hawk (Bloom Biological, Inc., 2009); a preliminary biological assessment prepared for the project by Sunrise Consulting (November 30, 2009); and a Draft Biological Resources Report prepared for the project by ICF International, Inc. (June 2010). Copies of the Draft Biological Resources Report are provided in Appendix C of this Draft EIR.

4.3.2 Environmental Setting The project area is located in unincorporated Kern County, California, approximately 12 miles west of the unincorporated community of Rosamond. The site consists of approximately 960 acres and is generally bordered by Holiday Avenue to the north, 135th Street West to the east, Kingbird Avenue to the south, and 150th Street West to the west. The property is vacant and consists of fallowed, former farmland. The project also includes a 230 kV generation‐tie power line. The power line route extends west from the project site for two miles along the Holiday Avenue alignment (from 150th Street West to 170th Street West) and then north for one‐half mile along 170th Street.

Land adjacent to the study area is also primarily fallow agriculture, with the exception of active alfalfa fields to the southwest, a water banking development project immediately west, and two small areas of native vegetation to the southeast and northeast.

Regional Kern County is divided into three distinct geographical regions. The eastern region, which includes the Mojave Desert; the middle region, which straddles the Southern Sierra Nevada Range and the Transverse Ranges of the Tehachapi and San Emidio Mountains; and the western region in the San Joaquin Valley, which is the southern section of the Great Central Valley of

County of Kern Section 4.3: Biological Resources


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California. The proposed project is located within the southwestern portion of the Mojave Desert.

The Mojave Desert is at a mid‐latitude high elevation (3,000–6,000 feet above mean sea level (amsl)) with a continental climate. The Mojave Desert is considered a “rain shadow desert,” which is an effect caused by the coastal mountains, Tehachapi Mountains, and Sierra Nevada Mountain ranges absorbing the majority of the rainfall on the windward side of the ranges (Rowlands et. al., 1982), leaving little available moisture on the leeward side. Winds in the area average about ten miles per hour (MPH), with average gusts reaching up to 30 MPH, with the highest wind gusts reaching over 100 MPH, according to archived climatological data for the past three years (The Weather Underground, 2010). Temperature and rainfall vary widely depending on season and time of day; however, the average precipitation for the Mojave is six inches annually (Weatherbase, 2010). Precipitation primarily occurs between November and April, with potentially heavy thunderstorms and flash floods in the summer. The western Mojave Desert exhibits winter‐dominant patterns with cold winters (USGS, 2010). Summer temperatures of 100° F are common and can climb above 110° F from June to September. Low humidity is normal during high temperatures (Twisselman, 1967).

Local The project vicinity is an area of extensive agricultural development, both active and abandoned. Relict native habitat in the area is rare, patchy, and highly disturbed. Three levels of fallow agricultural lands occur in the study area, as discussed in the Draft Biological Resources Report (refer to Appendix C):

Recently fallow, which supports a sparse cover of early‐colonizing species, especially common rabbitbrush (Chrysothamnus nauseosus) and Russian thistle (Salsola tragus). Foxtail chess (Bromus madritensis ssp. rubens) is the dominant understory species. Rodents have colonized the area.

Less recently fallow, in which rabbitbrush and Russian thistle are common. Cheesebush (Hymenoclea salsola) is scattered to common.

Later stage fallow, where an allscale (Atriplex polycarpa) community is well‐developed, moderately dense, and nearly monospecific. Foxtail chess and redstem filaree (Erodium cicutarium) are dominant in the understory. Small sinks (playas) are scattered throughout. This stage occurs only within the proposed generation‐tie power line alignment corridor near SCE’s planned Whirlwind Substation.

As discussed above, the study area is recently fallow agriculture, grazed by sheep, and supports weedy ruderal vegetation, with the dominant species consisting of foxtail chess, Russian thistle, and mustard (Brassica tournefortii). In a few low spots where water temporarily collects after rain, there are small clumps of tamarisk (Tamarix spp.) and giant reed (Arundo donax), both of which are invasive species. The only native plant species commonly encountered is rabbitbrush (Chrysothamnus spp.), which often is one of the first shrub species to colonize disturbed sites. Soils are fine and compacted on the surface, with areas of obvious inundation; tillage marks are obvious over much of the surface.



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Land adjacent to the study area is also primarily fallow agriculture, with the exception of active alfalfa fields to the southwest, a water banking development project immediately west, and two patches of native vegetation to the southeast and northeast.

Southeast of the study area is a diverse patch of native chenopod scrub, dominated by allscale, but well‐represented by several other species including winterfat (Krascheninnikovia lanata), cottonthorn (Tetradymia spp.), burrobush (Ambrosia dumosa), goldenhead (Acamptopappus sphaerocephalus), Nevada joint‐fir (Ephedra nevadensis), and Joshua tree (Yucca brevifolia). Soils are sandy and the understory of annual species is diverse, with abundant goldfields (Lasthenia spp.).

A 300‐acre area adjacent to the northeast corner of the study area was surveyed by Sunrise Consulting as part of a recommendation for assessing desert tortoise habitat (see below). This area supports a native creosote bush (Larrea tridentata)–white bursage (Ambrosa dumosa) community, and Joshua trees, Anderson’s box‐thorn (Lycium andersonii), and Nevada tea (Ephedra nevadensis) are also present. The area also supports a four‐wing saltbush (Atriplex canescens) community, with shadscale (A. confertifolia), brittlebush (Encelia farinosa), and Russian thistle. There are also areas of planted tamarisk and a burrobush–Nevada joint‐fir community. Photographs of the site are included in Appendix C of this Draft EIR.

According to the CNDDB and CNPS, there are nine special‐status plant species that have been previously recorded in the project vicinity. These species are provided below in Table 4.3‐1 along with their protective status and blooming period.

Table 4.3‐1: Special‐Status Plants with Potential to Occur within the Study Area

Scientific Name Common Name Status Blooming Period Astragalus hornii var. hornii Horn’s milkvetch CNPS 1B.1 May‐Oct Astragalus preussii var. laxiflorus Lancaster milkvetch CNPS 1B. 1 May‐Oct (no specific

Jepson blooming record)

Calochortus striatus alkali mariposa lily CNPS 1B.2 Apr‐June Calystegia peirsonii Peirson’s morning

glory CNPS 4.2 May‐June

Canbya candida white pygmy poppy CNPS 4.2 Apr‐May Carex vulpinoidea brown fox sedge CNPS 4.2 July, Aug Chorizanthe parryi var. parryi Parry’s spineflower CNPS 1B.2 Apr‐June Chorizanthe parryi var. fernandina San Fernando Valley

spineflower Federal: Endangered State: Candidate CNPS 1B.1

late Apr‐June (no specific Jepson blooming record)

Loeflingia squarrosa var. artemesiarum

sagebrush loeflingia CNPS4.2 Apr‐May

SOURCE: ICF International, Inc., 2010.



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Wildlife species common to disturbed areas in the region, which could occur on the project site include: Elodes beetles, western whiptail (Cnemidophorus tigris), side‐blotched lizard (Uta stansburiana), cactus wren (Camplorhynchus brunneicapillus), white‐crowned sparrow (Zonotrichia leucophrys), black‐tailed jackrabbit (Lepus californicus), and coyote (Canis latrans).

Common ravens (Corvus corax), northern flickers (Colaptes auratus), and white‐tailed antelope ground squirrels (Ammospermophilus leucurus) were observed at the project site during surveys.

Based on the habitat assessments conducted on the project site and a review of the CNDDB, eight special‐status wildlife species have the potential to occur in the vicinity of the project site. These species are listed below in Table 4.3‐2.

Table 4.3‐2.: Special‐Status Wildlife with Potential to Occur within the Study Area

Scientific Name Common Name Status Potential for Occurrence in the Study Area

Gopherus agassizii desert tortoise Federal: Threatened State: Threatened

None to low

Athene cunicularia burrowing owl Federal: None State: Species of Concern

Moderate

Buteo swainsonii Swainson’s hawk (nesting)

Federal: None State: Species of Concern

Low to none

Charadrius montanus

mountain plover Federal: None State: Species of Concern

Low

Toxostoma lecontei LeConte’s thrasher Federal: None State: Species of Concern

Low

Spermophilus mohavensis

Mohave ground squirrel

Federal: Petitioned State: Threatened

None

Taxidea taxus American badger Federal: None State: Species of Concern

Low to Moderate

Lanius ludovicianus Loggerhead shrike Federal: None State: Species of Concern

Low

SOURCE: ICF International, Inc., 2010.

The existing site conditions are disturbed with limited potential for native habitat to support wildlife species. Based on habitat assessments conducted for the project, the study area does not support potential habitat for the desert tortoise or the Mohave ground squirrel; supports potential habitat for the western burrowing owl; supports potential foraging habitat for Swainson’s hawk; may support the mountain plover, the LeConte’s thrasher, and loggerhead



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shrike; and may support the American badger. A further description and evaluation of each of these species is presented below.

Desert tortoise (Gopherus agassizii). The desert tortoise is federally and state‐listed as threatened. In California, the desert tortoise ranges throughout the Mojave and Colorado Deserts of northeastern Los Angeles, eastern Kern, and southeastern Inyo Counties and throughout most of San Bernardino, Riverside, and Imperial Counties. Desert tortoises most commonly occur on gently sloping terrain with sandy or gravely soils dominated by creosote shrubs with inter‐shrub space for herbaceous plant growth, although tortoises also can be found in steeper and rockier areas dominated by blackbrush and juniper at higher elevations (USFWS, 2008).

Desert tortoises spend most of their lives underground in burrows that are excavated under shrubs, under overhanging rock formations, or out in the open. Desert tortoises are active aboveground primarily during late winter and spring. During the hot summer months, some tortoises may emerge from their burrows in the early morning and late afternoon, but most remain in their burrows until the late summer rains. By October, most tortoises have retreated to their burrows for hibernation (USFWS, 2008).

The desert tortoise is severely threatened by continued population declines attributable to disease, human‐caused impacts, and the continued cumulative loss, degradation, and fragmentation of habitat caused by development and other construction activities (USFWS, 2008).

While the project area is relatively close to the western‐most accepted range of the species, based on Critical Habitat maps and the West Mojave Plan, the current accepted boundary is approximately 12 miles east of the study area. The reconnaissance surveys performed by Karl indicate no potential for desert tortoise to occur in the project area and no potential to affect the species. Further, Karl concluded that it is unlikely that any tortoises occupy the adjacent area and would be indirectly or directly affected by the project. However, Karl recommended further investigation of the adjacent creosote bush scrub habitat northeast of the site to verify any effects on tortoises off site. Sunrise Consulting reported that no desert tortoises were found in the immediate region of the referenced site and that the potential for presence is low, although the adjacent site does support appropriate habitat for this species.

Because the study area has no suitable habitat for the desert tortoise and there are no records of the species in the region surrounding the project area, there is no potential for this species to occur in the study area.

Mohave ground squirrel (Spermophilus mohavensis). The Mohave ground squirrel is state‐listed as threatened and has been petitioned for federal listing as a threatened species. The Mohave ground squirrel is also state‐listed as threatened. Mohave ground squirrels are restricted to the Mojave Desert in San Bernardino, Inyo, Kern, and extreme northeastern Los Angeles Counties (CDFG, 2005). The cities of Mojave in Kern County and Lancaster in Los Angeles County are near the western edge of Mohave ground squirrel’s range. Habitats that Mohave ground squirrels prefer are saltbush scrub, alkali desert scrub, creosote scrub, and Joshua tree woodland at an elevation of 550 to 1,525 meters (1,800 to 5,000 feet). They prefer



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open terrain with loose, sandy soils and avoid steeply sloped or rocky terrain. Burrows are used for shelter, nesting, and periods of dormancy (ICF International, Inc., 2010).

Mohave ground squirrels are diurnal and are active aboveground in the spring and in the early summer. Beginning in July or August, Mohave ground squirrels enter a period of dormancy, which continues until they emerge in February and March (ICF International, Inc., 2010). The Mohave ground squirrel shares its range with the white‐tailed antelope ground squirrel (Ammospermophilus leucurus), which is smaller and does not go into dormancy (Brylski et al., 1994).

Agricultural conversion of native habitat has resulted in the loss of occupied and potential habitat between the Antelope Valley, Lucerne Valley, and Mojave River Basin. Although the Mohave ground squirrel likely occupied the Antelope Valley historically, widespread conversion of native habitat apparently has extirpated the species from areas west of the cities of Palmdale and Lancaster (CDFG, 2005). There are no CNDDB records of Mohave ground squirrel within ten miles of the proposed project area.

Surveys performed by Phillip Leitner indicate the existing habitat in the study area is unsuitable for Mohave ground squirrel, and no focused survey was conducted. Leitner concluded that the site lacks the forage and shrub cover necessary to support the species. The only shrubs present are some scattered rabbitbrush in one small part of the property, and Mohave ground squirrels have never been recorded in such habitat. The study area lacks the food plants needed in the Mohave ground squirrel diet, which include native herbaceous annuals and certain shrubs (ICF International, Inc., 2010). Furthermore, the property is isolated from any suitable habitat that may exist to the north and east by wide expanses of active and abandoned farm land. The generally accepted historical western boundary of the Mohave ground squirrel range is about 12 miles to the east, along SR 14). Because the study area has no suitable habitat for the Mohave ground squirrel and there are no records of the squirrel in the region, there is low potential for this species to occur in the study area.

Burrowing owl (Athene cunicularia). Western burrowing owls are designated as a federal species of concern and as a California species of special concern and are protected under the Migratory Bird Treaty Act (MBTA). Western burrowing owls were formerly a common permanent resident throughout much of California, but population declines were noticeable by the 1940s and have continued to the present. Farming has taken a major toll on western burrowing owl populations and their habitat by destroying nesting burrows and exposing breeders and their young to the toxic effects of pesticides (ICF International, Inc., 2010).

Western burrowing owls prefer open, dry, short grassland habitats with few trees and often are associated with burrowing mammals such as California ground squirrels. They typically occupy burrows abandoned by ground squirrels or other burrowing mammals, but also may use artificial burrows such as abandoned pipes, culverts, and debris piles (CDFG, 1995; ICF International, Inc., 2010). Prey includes arthropods, amphibians, small reptiles, small mammals, and birds, particularly horned larks (ICF International, Inc., 2010).

The breeding season usually extends from late February through August. Western burrowing owls often nest in roadside embankments, on levees, and along irrigation canals. This species is



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more diurnal than most owls and often can be observed during the day standing outside the entrance to its burrow (ICF International, Inc., 2010).

The CNDDB includes five records of burrowing owl in the project region. The reconnaissance‐level survey work performed by Bloom indicated that potential nesting habitat for burrowing owl and suitable prey species are present, but no direct or indirect evidence was found indicating the species occupies the study area. While these were the only western burrowing owl observations in the study area, there are several records of western burrowing owls in the vicinity, and they are known to occur in the region. Although there are known occurrences in and near the study area and suitable nesting habitat is present, the habitat is of low quality overall, and, therefore, the potential for this species to occur elsewhere within the project area is considered moderate.

Swainson’s hawk (Buteo swainsonii). Swainson’s hawks are a federal species of concern, are protected under the MBTA, and are state‐listed as threatened. Swainson’s hawks inhabit grasslands, sage‐steppe plains, and agricultural regions of western North America during the breeding season and winter in grassland and agricultural regions from Central Mexico to southern South America (ICF International, Inc., 2010).

In California, the nesting distribution includes the Sacramento and San Joaquin Valleys, the Great Basin sage‐steppe communities and associated agricultural valleys in extreme northeastern California, isolated valleys in the Sierra Nevada in Mono and Inyo Counties, and limited areas of the Mojave Desert region, including the Antelope Valley (CDFG, 1993; CDFG, 2010).

Since 1980, on the basis of nesting records alone, populations in California appear relatively stable. However, continued agricultural conversion and practices, urban development, and water development have reduced available habitat for Swainson’s hawks throughout their range in California; this habitat reduction potentially could result in a long‐term declining trend. The status of populations, particularly with respect to juvenile survivorship, remains unclear on a statewide basis.

In California, Swainson’s hawk habitat generally consists of large, flat, open, undeveloped landscapes that include suitable grassland or agricultural foraging habitat and sparsely distributed trees for nesting (ICF International, Inc., 2010). Foraging habitat includes open fields and pastures. Preferred foraging habitats for Swainson’s hawk are alfalfa fields, fallow fields, low‐growing row or field crops, rice fields during the non‐flooded period, and cereal grain crops. Prey species include ground squirrels, California voles, pocket gophers, deer mice, reptiles, and insects (CDFG, 1994; ICF International, Inc., 2010).

Swainson’s hawks usually nest in large native trees such as valley oak (Quercus lobata), cottonwood (Populus fremontia), and willows (Salix spp.), although nonnative trees, such as eucalyptus (Eucalyptus spp.), occasionally are used. Nests occur in riparian woodlands, roadside trees, trees along field borders, isolated trees and small groves, trees in windbreaks, and the edges of remnant oak woodlands. In some locales, urban nest sites have been recorded. Nests are constructed using materials from the nest tree or nearby trees, are up to 60 centimeters (24 inches) in diameter, and are usually constructed as high as possible in the tree, providing optimal protection and visibility (ICF International, Inc., 2010).



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During most of the breeding season (March−August), nesting pairs maintain a territory around the nest that they defend. During the incubation and brooding phases of the nesting cycle (April−June), the male does the majority of the foraging and provisions the female, who provides the primary care of young during incubation and brooding (ICF International, Inc., 2010). Foraging bouts generally are conducted alone; however, inter‐ and intraspecific foraging groups may form away from the defended territory. Adults generally roost at or near the nest site during inactive periods (ICF International, Inc., 2010).

Swainson’s hawks are essentially plains or open‐country hunters, requiring large areas of open landscape for foraging. Historically, the species used the grasslands of the Central Valley and other inland valleys. With substantial conversion of these grasslands to farming operations, Swainson’s hawks have shifted their nesting and foraging into those agricultural lands that provide low, open vegetation for hunting and high rodent prey populations.

Foraging habitat value is a function of: (1) patch size (i.e., Swainson’s hawks are sensitive to fragmented landscapes; use will decline as suitable patch size decreases); (2) prey accessibility (i.e., the ability of hawks to access prey depending on the vegetative structure and management activities); and (3) prey availability (i.e., the abundance of prey populations in a field). Data on minimum foraging patch size are largely anecdotal, but generally thought to be between two and 10 hectares (ICF International, Inc., 2010). In the Central Valley, agricultural land use or specific crop type determine the foraging value of a field at any given time. Cover types were evaluated by Estep (1989) and ranked based on these factors. However, suitability ranking is based on a variety of site‐specific issues and at a landscape level should be characterized only on a general basis. On a site‐specific level—important for land management purposes to maximize foraging value—individual cover types can be assessed based on site‐specific and management conditions. Important land cover or agricultural crops for foraging are alfalfa and other hay, grain and row crops, bare fallow fields, dryland pasture, and annual grasslands. The matrix of these cover types across a large area creates a dynamic foraging landscape as temporal changes in vegetation results in changing foraging patterns and foraging ranges.

Hay crops, particularly alfalfa, provide the highest value because of the low vegetation structure (high prey accessibility), relatively large prey populations (high prey availability), and because farming operations (e.g., weekly irrigation and monthly mowing during the growing season) enhances prey accessibility. Most row and grain crops are planted in winter or spring and have foraging value while the vegetation remains low, but become less suitable as vegetative cover and density increases. During harvest, vegetation cover is eliminated while prey populations are highest, significantly enhancing their suitability during this period. Some crop types, such as rice, orchards, and vineyards, provide little to no value because of reduced accessibility and relatively low prey populations.

Within the Antelope Valley, current land uses support approximately 10 breeding pairs (CDFG, 2010), although there is anecdotal evidence that the number of birds utilizing the Antelope Valley for breeding has been increasing. Foraging habitat includes dry land and irrigated pasture, alfalfa, fallow fields, low‐growing row or field crops, new orchards, and cereal grain



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crops. Where a suitable prey base exists, they may also forage in grasslands, Joshua tree woodlands, and other desert scrub habitats (CDFG, 2010).

Bloom conducted a focused evaluation for Swainson’s hawk at the project site and within the region surrounding the project site, and no nests were found within one mile of the study area. ICF biologists also conducted reconnaissance surveys and did not locate nests within the study area. All large bird nests observed during Bloom and ICF surveys were identified as common raven nests. There are eight known Swainson's hawk nest locations in the West Rosamond area, roughly centered on the area of densest agricultural use in the Antelope Valley, and the distances relative to the nearest boundaries of the study area range from 2.75 miles to 6.67 miles. Swainson’s hawk could use the study area for foraging; however, it is considered lower‐quality habitat when compared to nearby alfalfa and active agricultural fields because it is fallow farmland and the hawk prefers alfalfa and other active fields. There is substantial other higher‐quality foraging area in the vicinity of the known Swainson’s hawk nesting area and the project vicinity.

Mountain plover (Charadrius montanus). The mountain plover has been federally proposed as threatened and is designated as a California species of special concern. Mountain plovers are a winter resident in California from September through March, typically found in short grasslands and plowed fields of the Central Valley, foothill valleys of the San Joaquin Valley, and in scattered locations throughout the desert regions (ICF International, Inc., 2010). Mountain plovers do not nest in California. They nest in the short‐grass prairies of New Mexico, Colorado, Wyoming, and Montana (ICF International, Inc., 2010). This species is considered absent from the study area because of lack of habitat.

LeConte’s thrasher (Toxostoma lecontei). The Le Conte’s thrasher is designated as a federal species of concern and a California species of special concern. Le Conte’s thrashers are an uncommon resident of the deserts of the southwestern United States and northwestern Mexico. In California, it is a permanent resident in the San Joaquin Valley, the Mojave Desert, and the Colorado Desert (ICF International, Inc., 2010).

Typical habitat consists of sparsely vegetated desert habitats with high proportion of saltbush or shadscale and/or cylindrical cholla cactus species. Le Conte’s thrashers rarely are found in desert habitats consisting entirely of creosote. Substrates are typically sandy with accumulated leaf litter under plants where the species searches for arthropod prey. Le Conte’s thrashers feed almost exclusively on arthropods. Le Conte’s thrashers prefer dense and thorny shrubs or cholla cactus for nesting habitat (ICF International, Inc., 2010).

Numbers of Le Conte’s thrashers have declined in recent decades. This species is wary of human activity, especially off‐road vehicle activity and the removal of shrubs for agricultural and other development (ICF International, Inc., 2010). This species was observed perching in the study area by EGIS Consulting during their 2010 surveys of the study area, but no suitable nesting habitat occurs in the study area, and this species is considered to have a low potential to nest in the study area.

Loggerhead shrike (Lanius ludovicianus). The loggerhead shrike is designated as a California species of special concern. Loggerhead shrikes are a widespread breeding species in North



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America, occurring from the southern Canadian provinces south across most of the United States and into Mexico. In California, loggerhead shrikes occur in open habitats with scattered shrubs, trees, posts, fences, utility lines, and other perches. Habitats include valley foothill forests, pinyon‐juniper, desert riparian, and Joshua tree habitats. Loggerhead shrikes are adaptable to urban environments as long as preferred habitat characteristics and abundant prey supplies are present (ICF International, Inc., 2010).

The loggerhead shrike is a predatory songbird. As opportunistic predators, loggerhead shrikes feed on a wide variety of prey, including insects, small mammals and birds, reptiles, amphibians, and occasionally carrion. Prey are often impaled on sharp objects such as thorns and barbed wire fences. Nesting habitat includes densely foliaged shrubs and trees near open habitats (ICF International, Inc., 2010). There is potential for loggerhead shrike in the project area, but no suitable nesting habitat occurs in the project area. Nesting habitat for loggerhead shrike occurs in shrubs and trees along the periphery of the project area.

American badger (Taxidea taxus). The American badger is designated as a California species of special concern. The species is found throughout the state except in the north coast region. Badgers are most abundant in drier areas with friable soils. Other fossorial animals often use burrows made by badgers. Badgers are carnivorous and prey on fossorial rodents, especially ground squirrels and pocket gophers, as well as reptiles, insects, earthworms, eggs, and carrion (ICF International, Inc., 2010). This species has a low to moderate potential to occur in the study area.

Regulatory Setting

Federal

Federal Regulation of Waters of the United States, Including Wetlands

Wetlands are a subset of “waters of the United States” and receive protection under Section 404 of the Clean Water Act (CWA). The term “waters of the U.S.” as defined in Code of Federal Regulations (33 CFR 328.3(a); 40 CFR 230.3(s)), includes all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide. Wetlands are defined by the federal government (CFR, Section 328.3(b), 1991) as those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Waters of the U.S. do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the FCWA, the final authority regarding CWA jurisdiction remains with USEPA (328.3(a)(8) added 58 FR 45035, August 25, 1993).

Based on site maps and aerials (Google Earth, 2010), and general visits to the project site, it is unlikely that any “Waters of the U.S.” exist on the project site.



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Section 404 Clean Water Act

The U.S. Army Corps of Engineers (USACE) defines “waters of the U.S.” in 33 CFR (Code of Federal Regulations) 328.3 as:

1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

2. All interstate waters including interstate wetlands; 3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams),

mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: a. Which are or could be used by interstate or foreign travelers for recreational or

other purposes; or b. From which fish or shellfish are or could be taken and sold in interstate or foreign

commerce; or c. Which are used or could be used for industrial purpose by industries in interstate

commerce; 4. All impoundments of waters otherwise defined as waters of the U.S. under the

definition; 5. Tributaries of the above waters; 6. The territorial seas; 7. Wetlands adjacent to the above waters (other than waters that are themselves

wetlands). Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 123.11(m) which also meet the criteria of this definition) are not waters of the U.S.;

8. Waters of the U.S. do not include prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other federal agency, for the purposes of the CWA, the final authority regarding CWA jurisdiction remains with the USEPA.

The term “wetlands” means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Under normal circumstances, the definition of wetlands requires three wetland identification parameters be present: wetland hydrology, hydric soils, and hydrophytic vegetation. Examples of wetlands may include freshwater marsh, seasonal wetlands, and vernal pool complexes that are adjacent to perennial waters of the U.S.

In certain situations, termed “Atypical Situations” by the USACE, one or more of the three parameters (vegetation, soil, and/or hydrology) may have been sufficiently altered by recent human or natural events to preclude the presence of wetland indicators of the parameter. The USACE description of atypical situations includes man‐induced wetlands. A man‐induced wetland is an area that has developed at least some characteristics of naturally occurring



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wetlands due to either intentional or incidental human activities. Some man‐induced wetlands may be subject to Section 404 of the CWA.

“Other waters of the U.S.” refers to those hydric features that are regulated by the CWA but are not defined as wetlands (33 CFR 328.4). “Other waters” includes the seasonal unvegetated streams common in southern California. To even be considered as potentially jurisdictional, these features must first exhibit a defined bed and bank and an ordinary high water mark. The term “ordinary high water mark” refers to that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. Examples of other waters of the U.S. may include rivers, creeks, ponds, and lakes. Swales are typically not considered waters of the U.S.

In January 2001, the U.S. Supreme Court issued a decision in the case of the Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers (herein referred to as “SWANCC”) that altered the USACE’s regulatory authority over wetlands that are isolated from navigable waters. Since the SWANCC decision, waters covered solely by this definition by virtue of their use as habitat by migratory birds are no longer considered “waters of the U.S.” The Supreme Court’s opinion did not specifically address what other connections with interstate commerce might support the assertion of CWA jurisdiction over “nonnavigable, isolated, intrastate waters” under this definition, and the USACE is recommending case by case consideration. A factor that may be relevant to this consideration includes, but is not limited to, the following: Jurisdiction of isolated, intrastate, and nonnavigable waters may be possible if their use, degradation, or destruction could affect other “waters of the U.S.,” thus establishing a significant nexus between the water in question and other “waters of the U.S.” (USACE, undated memorandum). Although the Supreme Court did not specifically address the meaning of the word “isolated”, it upheld the jurisdictional status of “adjacent” wetlands (and other waters), which are by definition wetlands that are “bordering, contiguous, or neighboring” other jurisdictional waters. This definition does not, however, address the degree of proximity necessary to establish that one wetland (or other water) is “adjacent” to a known jurisdictional water. As established by the Supreme Court in the United States v. Riverside Bayview Homes, Inc. in 1985 “wetlands separated from other waters by man‐made dikes or barriers, natural river berms, beach dunes, and the like are ‘adjacent wetlands.’”

In response to the U.S. Supreme Court’s decision in Rapanos v. United States and Carabell v. United States (herein referred to as “Rapanos”) the USACE and the USEPA have issued a set of guidance documents detailing the process for determining CWA jurisdiction. The USEPA and USACE issued a summary memorandum of the guidance for implementing the Supreme Court’s decision in Rapanos that addresses the jurisdiction over waters of the U.S. under the CWA. The complete set of guidance documents, summarized as key points below, should be used to collect relevant data for evaluation by the USEPA and the USACE to determine CWA jurisdiction over the project site and to complete the “significant nexus test” as detailed in the guidelines and the USACE Approved Jurisdictional Determination Form. Alternately, an applicant can essentially concede jurisdiction by completing a preliminary jurisdictional determination form and thereby avoid the time it takes to process an approved jurisdictional determination.



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The significant nexus test includes consideration of hydrologic and ecologic factors. The significant nexus test takes into account physical indicators of flow (such as evidence of an OHWM), whether a hydrologic connection to a traditional navigable water exists, and whether the aquatic functions of the water body have a significant effect (more than speculative or insubstantial effect) on the chemical, physical, and biological integrity of a traditional navigable water. The USACE and USEPA will apply the significant nexus standard to assess the flow characteristics and functions of the tributary drainage to determine if it significantly affects the chemical, physical and biological integrity of downstream traditional navigable waters.

The regulations and policies of the USACE regulatory program mandate that non‐water dependent projects that require an individual permit avoid filling wetlands unless it can be demonstrated that no practicable alternatives (to filling wetlands) exists. The USACE has primary federal responsibility for administering regulations that concern jurisdictional waters and wetlands within the project site. Potential jurisdictional waters identified within the project site included areas meeting the technical criteria of jurisdictional wetlands (i.e. seasonal wetland pools and seasonal ponds), aquatic habitat (i.e. perennial and ruderal ponds), and non‐wetland areas that may be considered jurisdictional (i.e. non‐wetland channel). These areas must also be evaluated in light of the SWANCC and Rapanos decisions. Regulated activities in jurisdictional waters including wetlands need authorization from the USACE to be in compliance with Section 404 the CWA.

Regional Water Quality Control Board

Under Section 401 of the CWA, the RWQCB must certify that actions receiving authorization under section 404 of the CWA also meet state water quality standards. The RWQCB also regulates waters of the state under the Porter‐Cologne Act Water Quality Control Act (Porter Cologne Act). The RWQCB requires projects to avoid impacts to wetlands if feasible and requires that projects do not result in a net loss of wetland acreage or a net loss of wetland function and values. The RWQCB typically requires compensatory mitigation for impacts to wetlands and/or waters of the state. The RWQCB also has jurisdiction over waters deemed ‘isolated’ or not subject to Section 404 jurisdiction under the SWANCC decision.1 Dredging, filling, or excavation of isolated waters constitutes a discharge of waste to waters of the state and prospective dischargers are required obtain authorization through an Order of Waste Discharge or waiver thereof from the RWQCB and comply with other requirements of Porter‐Cologne Act.

Federal Endangered Species Act (FESA)

Under the Federal Endangered Species Act (FESA), the Secretary of the Interior and the Secretary of Commerce jointly have the authority to list a species as threatened or endangered

1 Based on the Supreme Court ruling (SWANCC) concerning the Clean Water Act jurisdiction over isolated waters

(January 9, 2001), non‐navigable, isolated, intrastate waters based solely on the use of such waters by migratory birds are no longer defined as waters of the United States. Jurisdiction of non‐navigable, isolated, intrastate waters may be possible if their use, degradation, or destruction could affect other waters of the Unites States, or interstate or foreign commerce. Jurisdiction over such other waters is analyzed on a case‐by‐case basis. Impoundments of waters, tributaries of waters, and wetlands adjacent to waters should be analyzed on analyzed on a case‐by‐case basis.



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(16 USC 1533(c)). Pursuant to the requirements of FESA, an agency reviewing a proposed project within its jurisdiction must determine whether any federally listed or proposed species may be present in the project region and determine whether the proposed project would have a potentially significant impact on such species. In addition, the agency is required to determine whether the project is likely to jeopardize the continued existence of any species proposed to be listed under FESA or result in the destruction or adverse modification of critical habitat proposed to be designated for such species (16 USC 1536(3), (4)). Project‐related impacts to these species or their habitats would be considered “significant.” The “take” prohibition of the FESA prohibits any action that adversely affects a member of an endangered or threatened species.

Section 4(a)(3) and (b)(2) of the FESA requires the designation of critical habitat to the maximum extent possible and prudent based on the best available scientific data and after considering the economic impacts of any designations. Critical habitat is defined in section 3(5)(A) of the FESA as: (1) areas within the geographic range of a species that are occupied by individuals of that species and contain the primary constituent elements (physical and biological features) essential to the conservation of the species, thus warranting special management consideration or protection; and (2) areas outside of the geographic range of a species at the time of listing but that are considered essential to the conservation of the species.

Migratory Bird Treaty Act (MBTA)

The MBTA, first enacted in 1918, domestically implements a series of treaties between the United States and Great Britain (on behalf of Canada), Mexico, Japan, and the former Soviet Union that provide for international migratory bird protection. The MBTA authorizes the Secretary of the Interior to regulate the taking of migratory birds; the act provides that it shall be unlawful, except as permitted by regulations, “to pursue, take, or kill any migratory bird, or any part, nest or egg of any such bird…” (U.S. Code Title 16, Section 703). This prohibition includes both direct and indirect acts, although harassment and habitat modification are not included unless they result in direct loss of birds, nests, or eggs. The current list of species protected by the MBTA includes several hundred species and essentially includes all native birds. Permits for take of nongame migratory birds can be issued only for specific activities, such as scientific collecting, rehabilitation, propagation, education, taxidermy, and protection of human health and safety and personal property.

Clean Water Act

In accordance with Section 404 of the federal CWA, the USACE regulates discharge of dredged or fill material into waters of the United States. Waters of the United States and their lateral limits are defined in Title 33, Part 328.3(a) of the Code of Federal Regulations to include navigable waters of the United States, interstate waters, all other waters where the use or degradation or destruction of the waters could affect interstate or foreign commerce, tributaries to any of these waters, and wetlands that meet any of these criteria or that are adjacent to any of these waters or their tributaries. Waters of the United States are often categorized as “jurisdictional wetlands” (i.e., wetlands over which USACE exercises jurisdiction under Section 404) and “other waters of the United States” when habitat values and characteristics are being described. “Fill” is defined as any material that replaces any portion of



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a water of the United States with dry land or that changes the bottom elevation of any portion of a water of the United States. Any activity resulting in the placement of dredged or fill material within waters of the United States requires a permit from USACE.

In accordance with Section 401 of the CWA, projects that apply for a USACE permit for discharge of dredged or fill material must obtain water quality certification from the appropriate RWQCB indicating that the proposed project would uphold State of California water quality standards.

Porter‐Cologne Water Quality Control Act

Under the Porter‐Cologne Water Quality Control Act, waters of the state fall under the jurisdiction of the appropriate RWQCB. Under the act, the RWQCB must prepare and periodically update water quality control basin plans. Each basin plan sets forth water quality standards for surface water and groundwater, as well as actions to control nonpoint and point sources of pollution to achieve and maintain these standards. Projects that affect wetlands or waters must meet waste discharge requirements of the RWQCB, which may be issued in addition to a water quality certification or waiver under Section 401 of the CWA.

Draft West Mojave Habitat Conservation Plan

The Draft West Mojave Plan area in Kern County begins at the intersection of Kern, Inyo, and San Bernardino Counties northeast of Ridgecrest, California. The area approximately follows the Sierra Nevada Mountain Range to the southwest and continues to the Tehachapi Mountains north of the project site to the Los Angeles County line east‐northeast of Quail Lake. The project site is within and immediately adjacent to the far western boundary of the BLM management area.

The Draft West Mojave Plan is a pending habitat conservation plan (HCP) pursuant to the FESA and an amendment to the California Desert Conservation Area Plan covering over nine million acres in five counties (Inyo, Kern, Los Angeles, San Bernardino, and Riverside) with a purpose of creating a comprehensive strategy to conserve and protect the desert tortoise, the Mohave ground squirrel, and almost 100 other sensitive species, as well as the natural communities where they reside. In addition, this HCP provides a streamlined program for complying with the requirements of the CESA and FESA. The HCP has not yet been approved by the USFWS, CDFG, and the Kern County Board of Supervisors.

According to the BLM’s March 2006 Record of Decision for the Final EIR evaluating the amendment to the California Desert Conservation Area Plan, the HCP has not yet been adopted. Once it is completed, incidental take permits for 49 covered species would be issued to participating local jurisdictions and state agencies. This incidental take authorization cannot be implemented, however, until the local governments complete the application for incidental take permits and receive approval from state and federal wildlife agencies.

Desert Renewable Energy Conservation Plan

In response to Executive Order S‐14‐08, which established a target of obtaining 33 percent of the state’s electricity from renewable resources by 2020, the CEC, CDFG, BLM, and USFWS, have



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started preparing the Desert Renewable Energy Conservation Plan (DRECP). The plan area encompasses the Mojave and Colorado Desert regions in California, including all or a portion of the following counties: Kern, Los Angeles, San Bernardino, Inyo, Riverside, Imperial, and San Diego.

The DRECP is a NCCP that is intended provide for effective protection and conservation of desert ecosystems while allowing for the appropriate development of renewable energy projects. It is anticipated to provide long‐term endangered species permit assurances to renewable energy developers and provide a process for conservation funding to implement the DRECP. It will also serve as the basis for one or more HCP under the FESA. It is anticipated that the DRECP will be approved and adopted by the end of 2013.

State

CEQA Guidelines Section 15380 Although threatened and endangered species are protected by specific federal and state statutes, CEQA Guidelines Section 15380(b) provides that a species not listed on the federal or state list of protected species may be considered rare or endangered if the species can be shown to meet certain specified criteria. These criteria have been modeled after the definition in FESA and the section of the California Fish and Game Code dealing with rare or endangered plants or animals. This section was included in CEQA primarily to deal with situations in which a public agency is reviewing a project that may have a significant effect on, for example, a candidate species that has not been listed by either USFWS or CDFG. Thus, CEQA provides an agency with the ability to protect a species from the potential impacts of a project until the respective government agencies have an opportunity to designate the species as protected, if warranted. CEQA also calls for the protection of other locally or regionally significant resources, including natural communities. Although natural communities do not at present have legal protection of any kind, CEQA calls for an assessment of whether any such resources would be affected, and requires findings of significance if there would be substantial losses. Natural communities listed by CNDDB as sensitive are considered by CDFG to be significant resources and fall under the CEQA Guidelines for addressing impacts. Local planning documents such as general plans often identify these resources as well.

California Wetland Definition Unlike the federal government, California has adopted the Cowardin, et al. (1979) definition of wetlands (ICF International, Inc., 2010). For purposes of this classification, wetlands must have one or more of the following three attributes: (1) at least periodically, the land supports predominantly hydrophytes (at least 50 percent of the aerial vegetative cover); (2) the substrate is predominantly undrained hydric soil; and (3) the substrate is nonsoil and is saturated with water or covered by shallow water at some time during the growing season of each year.

Under normal circumstances, the federal definition of wetlands requires all three wetland identification parameters to be met, whereas the Cowardin definition requires the presence of at least one of these parameters. For this reason, identification of wetlands by state agencies consists



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of the union of all areas that are periodically inundated or saturated, or in which at least seasonal dominance by hydrophytes may be documented, or in which hydric soils are present.

California Department of Fish and Game Streambed Alteration Agreement CDFG regulates activities that would interfere with the natural flow of, or substantially alter, the channel, bed, or bank of a lake, river, or stream. These activities are regulated under the California Fish and Game Code Sections 1600‐1616. Requirements to protect the integrity of biological resources and water quality are often conditions of streambed alteration agreements. Requirements may include avoidance or minimization of the use of heavy equipment, limitations on work periods to avoid impacts on wildlife and fisheries resources, and measures to restore degraded sites or compensate for permanent habitat losses. A Streambed Alteration Agreement may be required by CDFG for construction activities that could result in an accidental release into a jurisdictional area.

Both state and federal wetland laws require that the biological and hydrological functions, which are lost when a wetland or water is altered or filled, be replaced as part of the respective permit processes. Compensatory actions include replacement of lost wetland acreage, usually in amounts substantially greater than the amount lost.

Based on site maps and aerials (Google Earth, 2010), and general visits to the project site, it is unlikely that any “state protected waters” exist on the project site.

State Endangered Species Act (CESA)

Under the California Endangered Species Act (CESA), the CDFG is responsible for maintaining a list of threatened and endangered species (California Fish and Game Code, 2007), candidate species, and species of special concern. Pursuant to the requirements of CESA, an agency reviewing a proposed project within its jurisdiction must determine whether any state listed endangered or threatened species may be present on the project region and determine whether the proposed project would have a potentially significant impact on such species. In addition, the CDFG encourages informal consultation on any proposed project that may impact a candidate species. If there were project‐related impacts to species on the CESA threatened and endangered list, they would be considered “significant.” Impacts to “species of concern” would be considered “significant” under certain circumstances, discussed below.

Although threatened and endangered species are protected by specific federal and state statutes, CEQA Guidelines Section 15380(b) provides that a species not listed on the federal or state list of protected species may be considered rare or endangered if the species can be shown to meet certain specified criteria. These criteria have been modeled after the definition in FESA and the section of the California Fish and Game Code dealing with rare or endangered plants or animals. This section was included in the CEQA Guidelines primarily to deal with situations in which a public agency is reviewing a project that may have a significant effect on, for example, a candidate species that has not yet been listed by either the USFWS or CDFG. Thus, CEQA provides an agency with the ability to protect a species from a project’s potential impacts until the respective government agencies have an opportunity to designate the species as protected, if warranted.



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State Fish and Game Code

Section 2080 of the State Fish and Game Code states, “No person shall import into this state [California], export out of this state, or take, possess, purchase, or sell within this state, any species, or any part or product thereof, that the commission [State Fish and Game Commission] determines to be an endangered species or threatened species, or attempt any of those acts, except as otherwise provided in this chapter, or the Native Plant Protection Act, or the California Desert Native Plants Act.” Pursuant to Section 2081 of the Code, the CDFG may authorize individuals or public agencies to import, export, take, or possess, any state‐listed endangered, threatened, or candidate species. These otherwise prohibited acts may be authorized through permits or Memoranda of Understanding if: (1) the take is incidental to an otherwise lawful activity; (2) impacts of the authorized take are minimized and fully mitigated; (3) the permit is consistent with any regulations adopted pursuant to any recovery plan for the species; and (4) the applicant ensures adequate funding to implement the measures required by CDFG. The CDFG makes this determination based on available scientific information and considers the ability of the species to survive and reproduce. Due to the potential presence of state‐listed rare, threatened, or endangered species on the project site, Sections 2080 and 2081 of the Code were considered in this evaluation.

Section 3503 of the California Fish and Game Code states that it is unlawful to take, possess, or needlessly destroy the nest or eggs of any bird. Section 3503.5 specifically states that it is unlawful to take, possess, or destroy any raptors (i.e., species in the orders Falconiformes and Strigiformes), including their nests or eggs. Typical violations of these codes include destruction of active nests resulting from removal of vegetation in which the nests are located. Violation of Section 3503.5 could also include failure of active raptor nests resulting from disturbance of nesting pairs by nearby project construction. This statute does not provide for the issuance of any type of incidental take permit.

All diversions, obstructions, or changes to the natural flow or bed, channel, or bank of any river, stream, or lake in California that supports wildlife resources are subject to regulation by CDFG under Section 1602 of the California Fish and Game Code. Under Section 1602, it is unlawful for any person, governmental agency, or public utility to do the following without first notifying CDFG: substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of any river, stream, or lake, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake. A stream is defined as a body of water that flows at least periodically or intermittently through a bed or channel that has banks and supports fish or other aquatic life. This definition includes watercourses with a surface or subsurface flow that supports or has supported riparian vegetation. CDFG’s jurisdiction within altered or artificial waterways is based on the value of those waterways to fish and wildlife. A CDFG streambed alteration agreement must be obtained for any project that would result in an impact on a river, stream, or lake.

Protection of fully protected species is described in Sections 3511, 4700, 5050, and 5515 of the California Fish and Game Code. These statutes prohibit take or possession of fully protected species. CDFG is unable to authorize incidental take of fully protected species when activities



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are proposed in areas inhabited by those species. CDFG has informed nonfederal agencies and private parties that they must avoid take of any fully protected species in carrying out projects.

Native Plant Protection Act

The Native Plant Protection Act includes measures to preserve, protect, and enhance rare and endangered native plants. The list of native plants afforded protection pursuant to the Native Plant Protection Act includes those listed as rare and endangered under the CESA. The Native Plant Protection Act provides limitations on take as follows: “No person will import into this state, or take, possess, or sell within this state” any rare or endangered native plant, except in compliance with provisions of the act. Individual landowners are required to notify the CDFG at least 10 days in advance of changing land uses to allow the CDFG to salvage any rare or endangered native plant material. Due to the absence of state‐listed rare, threatened, or endangered plant species on the project site, the Native Plant Protection Act was not considered in this evaluation.

Local

Kern County General Plan

This regulatory framework identifies the federal, state, and local statutes, ordinances, or policies that govern the conservation and protection of biological resources that must be considered the County during the decision‐making process for projects that have the potential to affect biological resources. The Kern County General Plan includes the following goals related to biological resources.

1.10.5 Threatened and Endangered Species Policies Policy 27 Threatened or endangered plant and wildlife species should be protected in

accordance with state and federal laws.

Policy 28 The County should work closely with state and federal agencies to assure that discretionary projects avoid or minimize impacts on fish, wildlife, and botanical resources.

Policy 29 The County will seek cooperative efforts with local, state, and federal agencies to protect listed threatened and endangered plant and wildlife species through the use of conservation plans and other methods promoting management and conservation of habitat lands.

Policy 30 The County will promote public awareness of endangered species laws to help educate property owners and the development community of local, State, and federal programs concerning endangered species conservation issues.

Policy 31 Under the provisions of CEQA, the County, as lead agency, will solicit comments from the CDFG and the USFWS when an environmental document (Negative Declaration, Mitigated Negative Declaration, or Environmental Impact Report) is prepared.



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Policy 32 Riparian areas will be managed in accordance with the USACE and the CDFG rules and regulations to enhance the drainage, flood control, biological, recreational, and other beneficial uses while acknowledging existing land use patterns.

Implementation Measures Q. Discretionary projects shall consider effects to biological resources as required by the

CEQA.

R. Consult and consider the comments from responsible and trustee wildlife agencies when reviewing a discretionary project subject to the CEQA.

S. Pursue the development and implementation of conservation programs with State and federal wildlife agencies for property owners desiring streamlined endangered species mitigation programs.

Willow Springs Specific Plan

The Willow Springs Specific Plan includes the following goals related to biological resources.

Policies

Policy 1 Where possible, developed shall be designed to avoid displacement of sensitive species.

Policy Focused surveys shall be conducted by a County‐approved biologist to establish the presence or absence of sensitive species.

Implementation Measures 4. Project site plans shall be encouraged by the County Agricultural Commissioner to be

designed to preserve shrub communities where the LeConte’s thrasher is known to be located, in accordance with State and federal regulations.

5. Although there is a low potential for the occurrence of desert tortoise in the Specific Plan

area, desert tortoises may occur on site. If tortoises are discovered during the subsequent surveys, the California Department of Fish and Game and the U.S. Fish and Wildlife Service shall be contacted immediately and appropriate mitigation shall be developed and implemented prior to resumption of development activities.

4.3.3 Impacts and Mitigation Measures This section describes the impact analysis relating to biological resources for the proposed project. It describes the methods used to determine the impacts of the project and lists the thresholds used to conclude whether an impact would be significant. Measures to mitigate (i.e., avoid, minimize, rectify, reduce, eliminate, or compensate for) significant impacts accompany each impact discussion.



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Methodology Biological resources evaluated included sensitive habitats, special‐status plant and animal species, and wildlife movement corridors. The potential for special‐status species to occur on the project site is based on the results of biological assessments and focused surveys conducted on the project site, proximity of the project to previously recorded occurrences in the CNDDB, on‐site vegetation and habitat quality, topography, elevation, soils, surrounding land uses, habitat preferences, and geographic ranges of special‐status plant and wildlife species known to occur in the region.

Field Surveys

Several field surveys and assessments have been conducted at the proposed project site. The applicant retained several independent biological consultants to review the site, focusing on one or more species. ICF biologists also conducted field studies to confirm the conclusions of others regarding special‐status species issues and to map and describe the biological resources present in the project area. The studies conducted by ICF and other consultants are described below.

General Vegetation

Field surveys to identify and map the general vegetation types (i.e., habitats) present in the project area were conducted by ICF botanists on April 13–16 and May 19–21, 2010. Habitats were visually inspected in the field, mapped on aerial photographs at a scale of 1 inch = 400 feet, and digitized into a geographic information system (GIS format).

Special‐Status Wildlife

The following habitat surveys were conducted for special‐status wildlife species:

Reconnaissance surveys for desert tortoise habitat and burrowing owls conducted by A.E. Karl & Associates (Karl) on June 15, 2009;

Mohave ground squirrel habitat assessment conducted by Phillip Leitner on May 23, 2009;

Swainson’s hawk nesting habitat survey and reconnaissance‐level burrowing owl survey conducted by Bloom Biological, Inc. (Bloom) on July 3 and September 15, 2009;

Reconnaissance surveys of a 300‐acre site adjacent to the northeast corner of the study area by Sunrise Consulting on October 21, 2009, including vegetation, desert tortoise, Mohave ground squirrel, and burrowing owl habitat; and

Protocol‐level surveys (i.e., formal surveys conducted to CDFG and/or USFWS standards) were not conducted as part of this study and are not required to describe the biological resources in the project area.

Special‐Status Plants

Botanical surveys were conducted according to CDFG survey guidelines to completely assess the presence of special‐status species. Two ICF botanists walked 50‐foot transects of all suitable



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habitat to obtain complete coverage of the study area and walked the center line of the proposed gen‐tie power line alignment. The surveys were conducted on April 13–16 and May 19–21, 2010, to capture the different flowering periods of special‐status plants potentially occurring in the study area. In addition, on April 16 a reference population of sagebrush loeflingia (Loeflingia squarrosa ssp. artemisiarum) located near Lancaster, a species thought to have a relatively high potential to occur, was observed in order to confirm it was identifiable at this time of year.

Waters of the United States

Based on site maps and aerials, as well as general visits to the site, likelihood was low for presence of any jurisdictional waters or wetlands. ICF botanists/wetland ecologists confirmed and documented the absence of potential jurisdictional waters during the first round of plant surveys.

ICF botanists and wetland ecologists conducted field surveys on April 13–16 and May 19–21, 2010, to identify and map any potential waters of the United States in the project area. A formal wetland delineation using the methods outlined in the Corps of Engineers Wetlands Delineation Manual and the Arid West Supplement to the Manual was conducted in the study area in two locations potentially supporting wetlands. Potential waters of the United States were mapped in the field on aerial photographs at a scale of 1 inch = 400 feet and were entered into a global positioning system (GPS) unit in the field.

Thresholds of Significance The Kern County CEQA Implementation Document and Kern County Environmental Checklist state that a project would have a significant impact on biological resources if it would:

Have a substantial adverse impact, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special‐status species in local or regional plans, policies, or regulations, or by the CDFG or the USFWS;

Have a substantial adverse impact on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, and regulations or by the CDFG or the USFWS;

Have a substantial adverse impact on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, and coastal wetlands), either individually or in combination with the known or probable impacts of other activities through direct removal, filling, hydrological interruption, or other means;

Interfere substantially with the movement of any resident or migratory fish or wildlife species or with established resident or migratory wildlife corridors, or impede the use of wildlife nursery sites;

Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance; or Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Communities Conservation Plan, or other approved local, regional, or state habitat conservation plan.



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Project Impacts

Impact 4.3‐1: The project would have a substantial adverse impact, either directly or through habitat modifications, on species identified as a candidate, sensitive, or special‐status species in local or regional plans, policies, or regulations, or by the CDFG or the USFWS.

The proposed project site consists of fallow grazing and agricultural land. This land use provides for low quality habitat for potentially‐occurring special‐status species.

Based on a review of the CNDDB and CNPS Inventory, 13 special‐status plant species were identified as having the potential to occur in the region. One species, Horn’s milk‐vetch, is recorded as occurring approximately four miles northeast of the study area. However, the study area does not support any suitable habitat (alkaline lake margins, playas) for this species. Ten more of the species identified as occurring in the region do not occur in the study area because they are limited to habitats that are not present in or near the study area (i.e., Mohavean desert scrub, chenopod scrub, alkaline lakes, chaparral, sage scrub, Joshua tree woodland). Suitable habitat may be present in the 300‐acre area of native vegetation adjacent to the northeast corner of the study area, but the ten species were not observed during surveys in the study area. The other two species, brown fox sedge and pale‐yellow layia, have only low potential to occur in the study area because the study area habitat is of low quality as a result of historical disturbance from agricultural activities. Surveys were conducted on April 13–16, 2010. for early‐blooming special‐status species and on May19–21, 2010, for late‐blooming special‐status plants. No special‐status plants were observed during these surveys.

Several wildlife species, including western burrowing owl, Swainson's hawk, American badger, loggerhead shrike, and several other avian species protected under California Fish and Game Code and/or the MBTA, have the potential to occur in the study area. No impacts on federally or state‐listed species such as Mohave ground squirrel and desert tortoise are anticipated because the project site does not provide habitat for these species. Accordingly, species that are not expected to occur are not discussed further in this document. Similarly, because surveys for special‐status plants were completed in the project area and none were located, no impacts on special‐status plants are anticipated as part of the project, and they also are not discussed further in this document. Potential impacts on each of the remaining species with potential to occur in the project area are discussed below.

Western Burrowing Owl

Although protocol‐level surveys were not conducted in the study area, western burrowing owls are known to occur immediately adjacent to the study area and in the Antelope Valley. Construction is potentially several years away, and although the owls will often use the same burrows from year to year, owls could move into the project area and be present at the time the project goes to construction. Any adverse impacts to the burrowing owls would be significant.

Swainson’s Hawk

Focused nesting Swainson’s hawk surveys were conducted in the study area and surrounding areas. No nesting Swainson’s hawks were observed in or within one mile of the study area.



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However, Swainson’s hawks are known to nest within three miles of the project area (CDFG, 2010). There are currently approximately 10 breeding pairs in the Antelope Valley (CDFG, 2010), and eight breeding pairs appear to be present with five miles of the project site, based on CNDDB records and surveys conducted by Bloom.

CDFG has recently released draft Swainson’s hawk guidance regarding survey protocols, impact avoidance, and minimization measures for renewable energy projects in the Antelope Valley. While the guidance is only in draft form as of the preparation of this report, a review indicates several unresolved and unaddressed issues with regard to population status, historical versus recent trends, use of habitats for foraging, the definition of take with regard to foraging habitat loss, and the expectation for future impacts and habitat loss. Overall, the guidance recommends a preservation ratio for impacts to foraging habitat without providing a biological analysis or justification for the mitigation.

While the project site, and the area immediately surrounding it, do not support nesting Swainson’s hawks, they are known to use fallow habitats such as those on the project site for foraging (CDFG, 1994). In general, based on telemetry studies conducted in the 1980s (ICF International, Inc., 2010), Swainson’s hawks require a mean home range size of approximately 6,800 acres and a maximum home range size of approximately 21,500 acres for foraging. Conservatively assuming that Swainson’s hawks in the Antelope Valley require the largest home range, and that ten breeding pairs currently exist, approximately 215,000 acres of foraging habitat is an estimate of the foraging habitat that should be necessary to sustain the current population. Although this oversimplifies the amount of foraging habitat that may be necessary to sustain the population, and does not take into account numerous other factors influencing the suitability of foraging habitats, it provides a reasonable estimate based on currently known information.

An analysis of the land cover types in the Antelope Valley and within 10 miles of the known nests provides some context when describing the impacts on foraging habitat from the proposed project. Table 4.3‐3 summarizes existing land cover types.

As summarized in Table 4.3‐3, available foraging habitat in the Antelope Valley is relatively large, totaling approximately 1.1 million acres, and the available foraging habitat within ten miles of the known nests is approximately 231,500 acres. When viewed in the context of the proposed project, the project will remove less than 0.1 percent of the available foraging habitat in the Antelope Valley, and approximately 0.4 percent of the available foraging habitat within ten miles of the known nests. As discussed above, numerous factors may influence the suitability of a particular habitat in the Antelope Valley and within ten miles of the nests, such as the availability of small prey; however, even considering these variables, the level of impact on Swainson’s hawk foraging habitat does not appear to meet the criteria to be considered a significant impact under CEQA (i.e., an impact that would cause a “substantial adverse effect” on a species or its habitat); therefore, impacts would be less than significant.



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Table 4.3‐3 Land Cover Types in the Antelope Valley in Relation to the Rosamond Solar Project

Habitat Typea

Amount of Habitat Type (acres) in the Antelope Valleyb

Amount of Habitat Type (acres) within 10 Miles of Known

Nests

Considered Suitable Foraging Habitat (Y/N)c

Alkali Desert Scrub 336,000 80,000 Y Annual Grassland 43,000 4,500 Y Chamise‐Redshank Chaparral 15 None N Coastal Scrub 100 100 N Cropland 94,000 63,000 Y Desert Scrub 660,500 84,000 Y Juniper 15,000 2,200 N Mixed Chaparral 20,000 4,300 N Sagebrush 58,500 27,400 N Urban 87,500 12,500 N Barren 6,000 None N

a Based on California Gap Analysis data (1998). b Assumes the Antelope Valley is approximately 1.3 million acres. c Based on the list of suitable foraging habitat (assuming the presence of small prey) (CDFG, 2010).

Other Nesting Special‐Status Birds and Loss of Foraging Habitat

Several species of special‐status raptors and other special‐status birds have been observed in the study area or adjacent to the study area during surveys. There are no trees in the project area and therefore, no nesting habitat for raptors and migratory birds. Any adverse impacts to nesting special‐status birds would be significant.

American Badger

Although no American badgers have been directly observed in the project area, American badgers are known to occur in the general project region. Habitat at the project site is not optimal. If present, construction activities including vegetation removal and any ground disturbing activities have the potential to result in the badger mortality or injury. Any adverse impacts to the American badgers would be significant.

Mitigation Measures

MM 4.31: To mitigate for the potential impacts to burrowing owls, the following measures shall be implemented as part of the approval for a grading or building permit. Appropriate notes shall be included on any grading permit, building permit or final map.

To avoid impacts on western burrowing owl, the following guidelines, adapted from the CDFG Staff Report on Burrowing Owl Mitigation (CDFG, 1995), shall be implemented:



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1. A qualified wildlife biologist (i.e., a wildlife biologist with previous burrowing owl survey experience) shall conduct a preconstruction survey to locate any breeding or wintering burrowing owls no more than 30 days prior to the start of construction.

2. If no burrowing owls are detected, no further mitigation is necessary. If burrowing owls are detected, no ground‐disturbing activities, such as road construction or installation of turbines or ancillary facilities, shall be permitted within 250 feet of an active burrow during the breeding season (February 1–August 31), unless otherwise authorized by California Department of Fish and Game. Occupied burrows should not be disturbed during the nesting season unless a qualified biologist approved by California Department of Fish and Game, verifies through noninvasive methods that either: (1) the birds have not begun egg‐laying and incubation; or (2) juveniles from the occupied burrows are foraging independently and are capable of independent survival.

3. During the nonbreeding (winter) season (September 1–January 31), ground‐disturbing work can proceed near active burrows as long as the work occurs no closer than 160 feet from the burrow and the site is not directly affected by the project activity. If active winter burrows are found that would be directly affected by ground‐disturbing activities, owls can be displaced from winter burrows. A qualified wildlife biologist shall install one‐way doors at the entrance to the active burrow and other potentially active burrows within 150 feet of the active burrow. Forty‐eight hours after the installation of the one‐way doors, the doors can be removed, and ground‐disturbing activities can proceed.

4. Should burrowing owls be found on‐site, and if it is determined that the proposed project would reduce suitable habitat on‐site below California Department of Fish and Game threshold levels, the habitat shall be replaced off‐site if no suitable on‐site habitat is available. Off‐site habitat must consist of suitable burrowing owl habitat, as defined in the Burrowing Owl Survey Protocol, and the location shall be approved by the California Department of Fish and Game. The appropriate replacement ratio will be determined through consultation with the California Department of Fish and Game.

MM 4.32: To mitigate for the potential impacts to nesting special‐status birds, the following measures shall be implemented as part of the approval for a grading or building permit. Appropriate notes shall be included on any grading permit, building permit or final map.

• If construction is scheduled to occur during the non‐nesting season, no preconstruction surveys or additional measures are required. To avoid impacts on nesting birds in the project area, a qualified wildlife biologist shall conduct preconstruction surveys of all potential nesting habitat within 500 feet of construction activities during the breeding season (February 1–August



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31). Surveys shall be conducted no more than 30 days prior to construction activities.

• If active nests are found, a 500‐foot, no‐disturbance buffer should be created around active raptor nests (0.25‐mile buffer for active Swainson’s hawk nest) during the breeding season or until it is determined that young have fledged, unless otherwise authorized by the California Department of Fish and Game. A 250‐foot, no‐disturbance buffer should be created around nests of non‐raptor special‐status birds. If the nest(s) are found in an area where ground disturbance is scheduled to occur, the project proponent should avoid the area either by delaying ground disturbance in the area until a qualified wildlife biologist has determined that the birds have fledged or by re‐siting the project component(s) to avoid the area.

MM 4.33: To mitigate for the potential impacts to the American badger, the following measures shall be implemented as part of the approval for a grading or building permit. Appropriate notes shall be included on any grading permit, building permit or final map.

Suitable burrows shall be avoided to the greatest extent possible. If potential dens are present in the construction site and cannot be avoided, the following measures shall be implemented to avoid impacts on the American badger.

• Prior to construction, a qualified biologist (a wildlife biologist with a minimum of two years of professional experience) shall survey the project area in locations with potential den habitat for potential badger dens. If the biologist determines that potential dens are present but inactive, the biologist shall excavate these dens by hand with a shovel to prevent badgers from reusing them during construction.

• If the qualified biologist determines that potential dens may be active, the entrances of the dens shall be blocked with soil, sticks, and debris for 3 to 5 days to discourage the use of these dens prior to project disturbance. The den entrances shall be blocked to an incrementally greater degree over the 3‐ to 5‐day period. After the qualified biologist determines that badgers have stopped using active dens within the project boundary, the dens shall be hand‐excavated with a shovel to prevent reuse during construction.

Level of Significance after Mitigation

Less than significant.

Impact 4.3‐2: The project would have a substantial adverse impact on riparian habitat or other sensitive natural community identified in local or regional plans, policies, and regulations or by the CDFG or the USFWS.

Sensitive habitats include those that are of special concern to resource agencies or are afforded specific consideration through CEQA, Section 1602 of the California Fish and Game Code,



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Section 404 of the federal CWA, and the state’s Porter Cologne Water Quality Control Act. Sensitive natural habitat may be of special concern to these agencies and conservation organizations for a variety of reasons, including their locally or regionally declining status, or because they provide important habitat to common and special‐status species. Many of these communities are tracked in the CNDDB, a statewide inventory of the locations and conditions of the state’s rarest plant and animal taxa and vegetation types.

The proposed solar generation facility site does not support any sensitive habitats. Irrigation ditches that are located in the project vicinity are unlikely to qualify for USACE jurisdiction or protection under the state’s Porter Cologne Water Quality Control Act. As indicated in the Sunrise Consulting Letter Report, no sensitive habitats are found on or adjacent to the proposed solar generation facility. Similarly, no riparian or sensitive natural communities occur within the generation‐tie power line alignment. Therefore, there would be no impacts to any riparian habitat or other sensitive natural community due to the proposed project.

Mitigation Measures

There would be no impacts to any riparian habitat or other sensitive natural community due to the proposed project; therefore, no mitigation is required.



Impact 4.3‐3: The project would have a substantial adverse impact on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, and coastal wetlands), either individually or in combination with the known or probable impacts of other activities through direct removal, filling, hydrological interruption, or other means.

A wetlands delineation was conducted in the project area, and although several small areas in the southeast corner of the project site appeared to meet the technical definition of wetlands, they likely are created artificially and are isolated from other navigable waters of the United States. These facts make the wetland nonjurisdictional under Section 404 of the CWA, and, therefore, no impacts on waters of the United States are anticipated from the proposed project.

Mitigation Measures

No impacts on waters of the United States are anticipated from the proposed project; therefore, no mitigation is required.





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Impact 4.3‐4: The project would interfere substantially with the movement of any resident or migratory fish or wildlife species or with established resident or migratory wildlife corridors, or impede the use of wildlife nursery sites.

Wildlife corridors are pathways or habitat linkages that connect discrete areas of natural open space otherwise separated or fragmented by topography, changes in vegetation, and other natural or human‐induced factors, such as urbanization. Adjacent land uses to the solar generation facility include fallow agriculture and undisturbed creosote brush scrub. According to the Sunrise Consulting report (2009), solar generation facility does not provide a corridor for wildlife movement to and from adjacent sites. It is unknown at this time if wildlife movement corridors are located within or adjacent to the generation‐tie power line alignment. However, area does contain many avian species including raptors that may be impacted by the design of the generation‐tie power lines. A mitigation measure is included to reduce impacts associated with collisions and electrocution risks of the inter‐tie lines that would be built to transport the electricity generated by the solar panels onto the main grid. This includes designing generation‐tie power lines to be raptor‐safe in accordance with the Suggested Practices for Raptor Protection on Power Lines: The State of the Art in 2006 and Mitigating Bird Collisions with Power Lines: The State of the Art in 1994 (ICF International, Inc., 2010)

Implementation of Mitigation Measure 4.3‐2 would reduce impacts from this project to wildlife movement corridors to a level of less than significant.

Mitigation Measures

MM 4.34: The following measures shall be implemented prior to issuance of a grading or building permit. Appropriate notes shall be included on any grading permit, building permit or final map.

• The project proponent shall submit written documentation to the Kern County Planning and Community Development Department showing that all power lines are constructed to 2006 Avian Power Line Interaction Committee Guidelines. The project proponent shall conform to the latest practices (as outlined in the 2006 Avian Power Line Interaction Committee document) to protect birds from electrocution and collision. Implementation of these guidelines shall be verified by Kern County. The project proponent shall install power collection and transmission facilities utilizing Avian Power Line Interaction Committee standards for collision reducing techniques as outlined in Suggested Practices for Raptor Protection on Power Lines: The State of the Art in 2006 and Mitigating Bird Collisions with Power Lines: The State of the Art in 1994 (Avian Power Line Interaction Committee, 2006; 1994).





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Cumulative Setting Impacts and Mitigation Measures Cumulative impacts require the analysis of projects located within the vicinity of the proposed project. Cumulative impacts are concluded to be considerable if the incremental effects of an individual project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. Currently, the site consists of fallow agricultural fields and grazing land. As discussed above, the project‐specific impacts of the proposed project would be less than significant with implementation of the proposed mitigation measures.

As urbanization pressures increase within Kern County, impacts to biological resources within the region are increasing on a cumulative level. When considered with other past, present, and probable future projects as listed in Table 3‐3 of this EIR, the proposed project would result in a cumulatively significant loss of some biological resources in the region, even with the implementation of mitigation. Therefore, the proposed project, coupled with other development proposed in the area, would result in a significant and unavoidable contribution to cumulative impacts to biological resources.

Mitigation Measures

Implement MM 4.3‐1 through MM 4.3‐4.

Level of significant after mitigation Significant and unavoidable.

Documents

Section 4.3 Biological Resources Introduction