Draft DRECP and EIR/EIS - U.S. Fish and Wildlife Service · II.3-59 in Volume II.3.1.4). FAAs may be designated either as DFA or part of the DRECP Plan-Wide Reserve Design Envelope

Appendix M

U.S. Fish and Wildlife Service General Conservation Plan

APPENDIX M PROPOSED GENERAL CONSERVATION PLAN

U.S. Fish and Wildlife Service August 18, 2014

1.0 INTRODUCTION AND REGULATORY BACKGROUND We, the U.S. Fish and Wildlife Service (USFWS), have prepared this proposed General Conservation Plan (GCP) as the permitting process to authorize incidental take resulting from Covered Activities on non-Federal lands under the interagency Draft Desert Renewable Energy Conservation Plan (DRECP), which is analyzed in the Draft Environmental Impact Report/Environmental Impact Statement (EIR/EIS). Please refer to Volume I.2.2 (Legal Framework, USFWS) of the Draft DRECP and Draft EIR/EIS for a discussion of the regulatory framework related to the Habitat Conservation Plan (HCP) and incidental take provisions of the Federal Endangered Species Act (ESA), including the USFWS policy on General Conservation Plans and the unintentional take provisions under the Bald and Golden Eagle Protection Act (Eagle Act). This proposed GCP is functionally a subset of the overall interagency DRECP and is based on the DRECP’s analysis of renewable energy development impacts and its comprehensive Plan-Wide conservation strategy for Covered Species. Throughout this GCP appendix, we refer to supporting data and analyses in the Draft EIR/EIS by citing Volume number (I, II, III, IV), followed by chapter and section number. Please note that all references to “mitigation” in this GCP appendix refer to the mitigation that is required under ESA incidental take permit issuance criteria, and does not refer to mitigation that is required under the California Environmental Quality Act (CEQA). The Renewable Energy Action Team (REAT) agencies, of which USFWS is a member, have proposed an interagency Preferred Alternative that is evaluated in the Draft DRECP and Draft EIR/EIS. The GCP is our proposed action, and is based on the effects analysis and conservation strategy of the interagency Preferred Alternative. We propose this GCP as a programmatic process for streamlining issuance of ESA section 10(a)(1)(B) permits for impacts to Covered Species resulting from renewable energy and transmission development on non-Federal lands within certain portions of the DRECP Plan Area. The GCP provides the regulatory structure for us to consider issuing permits to applicants who demonstrate their proposed projects are consistent with the terms and conditions of the GCP as set forth in this Appendix M. Other components of the interagency DRECP are the Bureau of Land Management (BLM) Land Use Plan Amendment (LUPA) and California Department of Fish and Wildlife (CDFW) Natural Community Conservation Plan (NCCP). The California Energy Commission (CEC) and California State Lands Commission (CSLC) are requesting incidental take permits for renewable energy projects they may license or for which they may grant leases, respectively, under their state programs (refer to Volume I.2.3 and I.2.4 for a description of the regulatory backgrounds for CEC and CSLC). We are considering issuing permits to CEC and CSLC under the proposed GCP, after it is approved through the signing of a Record of Decision (ROD) on a Final DRECP and Final EIR/EIS and our completion of other internal USFWS decision documents. Information submitted to us by CEC and CSLC in support

PUBLIC REVIEW DRAFT August 18, 2014

GENERAL CONSERVATION PLAN

Appendix M M-2 18 August 2014

of their applications is provided for public review in Section 11.0 below. Those application materials also serve as examples of how we will evaluate future permit requests under the GCP. If we approve the GCP, the Imperial Irrigation District (IID) is considering applying for a permit under the GCP for incidental take of Covered Species associated with their proposed Salton Sea Incremental Habitat Plan (Incremental Plan). Because the Incremental Plan is still in development, IID is not applying for a permit at this time. A brief summary of the Incremental Plan is provided in Section 10.0 below, to inform the public of this potential future application under the GCP. 2.0 PROPOSED GCP PERMIT AREA, GCP PLAN AREA, AND BASELINE FOR COVERED SPECIES The extent of Covered Activities under the GCP (see Section 3.0 below) is considered a subset of the interagency Preferred Alternative described in Volume II.3. The GCP covers a proposed GCP Permit Area within a larger GCP Plan Area. Within the GCP Permit Area, the 37 Covered Species listed in Table II.3-2 of Volume II.3.1.2.2 (DRECP Proposed Covered Species List) potentially would be incidentally taken in conjunction with Covered Activities. Covered Activities are described in Volume I.3.4 (Overview Description of Covered Activities)] and the GCP Permit Area is described in Volume I.0.3.1.2 (DRECP Permit Areas). The larger GCP Plan Area encompasses non-Federal lands in the GCP Permit Area and certain Federal lands outside the GCP Permit Area. The GCP Permit Area totals approximately 4,371,000 acres, as described in Volume II.3.4 (GCP Elements of the Preferred Alternative, including Figure II.3-7 and Table II.3-59) and Volume II.3.1.4.4 (Transmission), and encompasses all non-Federal lands within the following areas:

Approximately 1,632,000 acres in DRECP Development Focus Areas (DFAs) where USFWS will consider authorizing incidental take associated with Covered Activities

Approximately 18,000 acres of new or modified/expanded transmission areas Approximately 7,000 acres of Study Area Lands with the interim designation of Special

Assessment Areas (SAAs) Approximately 2,714,000 acres in the DRECP Plan-Wide Reserve Design Envelope,

which includes 1,080,000 acres of Conservation Planning Areas (CPAs) that identify non-Federal lands appropriate for permittee mitigation acquisition from willing sellers; and non-Federal lands and inholdings within Existing Conservation Lands and BLM LUPA Conservation Designations.

The GCP Plan Area encompasses the GCP Permit Area and some BLM LUPA Conservation Designations within the Interagency Plan-Wide Conservation Priority Area that are outside the GCP Permit Area. Permittee non-acquisition mitigation measures may be implemented anywhere within the Interagency Plan-Wide Conservation Priority Area. The DRECP Conservation Area refers to lands that are acquired for mitigation within the DRECP Plan-Wide Reserve Design Envelope. The DRECP Conservation Area will include mitigation lands that are acquired within the non-Federal CPAs, as well as non-acquisition




mitigation measures that are implemented on non-Federal and BLM lands within the Interagency Plan-Wide Conservation Priority Area (see Glossary of Terms). The baseline acreage of modeled habitat for each Covered Species on non-Federal lands within the DRECP Plan Area is shown in Table III.7-93 of Volume III.7.6 (Biological Resources, Special Status Species). Applicants may request GIS database assistance from the DRECP Coordination Group, as discussed in Volume II.3.1.3.5.2 (The DRECP Data Portal), for information on modeled habitat and known occurrences of Covered Species that will be impacted at particular locations within DFAs. Applicants also will be able to access the online DRECP Data Portal. Requirements for project-specific presence/absence surveys for Covered Species to document the existing baseline are described in the Biological Conservation and Management Actions (CMAs) in Volume II.3.1.2.5 (Biological Conservation and Management Actions). 3.0 COVERED ACTIVITIES Activities covered under the GCP are the DRECP Covered Activities described in Volume II.3.1.4 for the Preferred Alternative (Overview Description of Covered Activities), and include the distribution, magnitude, and scope of activities associated with the design, construction, operation, maintenance, and decommissioning of renewable energy facilities (including solar, wind, and geothermal) and associated transmission construction, operations, and maintenance activities on non-Federal lands. The GCP tables in Volume II.3.4 (GCP Elements of the Preferred Alternative) show the estimated megawatt (MW) distribution and technology mix, in acres, that are proposed for non-Federal lands in the DFAs; a detailed description of the methodology used to determine these acreages is discussed in Volume I.3.3 (Renewable Energy Goals and Planning Process) and Appendix F (MW Distribution). The acreages of ground disturbance in the tables represent the estimated project areas of renewable energy development that potentially could be built on non-Federal lands, and for which project proponents may need incidental take authorization. Table 9.1-1 in Section 9.0 below shows that approximately 138,800 acres of ground disturbance would result from renewable energy development in the GCP Permit Area, or about 8.5% of the total non-Federal lands within the DFAs. The CMAs include actions required to avoid, minimize, and compensate for the effects of incidental take of Covered Species, and are detailed in Volume II.3.1.2.5 (Preferred Alternative, Biological Conservation and Management Actions) and Appendix H (CMAs Documentation). The CMAs also describe project-specific pre-construction surveys and clearance surveys for certain Covered Species. In addition, CMA implementation within the DRECP Conservation Area may involve certain activities that could result in short-term incidental take of Covered Species associated with activities that would provide long-term species benefits (for example, the disturbance to desert tortoise habitat resulting from removal of invasive plants). However, the GCP and any permits issued under the GCP will not cover any incidental take that would result from CMA implementation or implementation of non-acquisition mitigation measures on Federal lands, as further discussed in Section 5.1 below.




DRECP Future Assessment Areas (FAAs) and Special Assessment Areas (SAAs) are interim categories subject to ongoing analysis, and are discussed in the Glossary of Terms and in Volume II.3.1.4 (Preferred Alternative, Overview Description of Covered Activities). Under the Preferred Alternative, non-Federal lands are present within each of these categories (see Table II.3-59 in Volume II.3.1.4). FAAs may be designated either as DFA or part of the DRECP Plan-Wide Reserve Design Envelope through a future amendment to the DRECP and GCP; therefore, the proposed GCP does not cover renewable energy development in the FAAs. SAAs will be designated as either DFA or included in the DRECP Plan-Wide Reserve Design Envelope in the Final DRECP and Final EIR/EIS. We assume that all SAA non-Federal lands may be designated as DFA, and the analysis for the GCP should account for the maximum amount of incidental take of Covered Species that would occur on SAA lands in the GCP Permit Area and the mitigation required for the effects of that take. However, the SAAs contain only about 7,000 acres of non-Federal lands. If this entire amount is designated as DFA and added to the DFA area already proposed, the SAA portion would account for only 0.43% of that non-Federal acreage. We consider this amount to be insignificant (i.e., unable to be meaningfully measured, detected, or evaluated). For this reason, we conclude that the incidental take that could occur on non-Federal lands within the SAAs is adequately represented in general by the GCP take analysis for the DFAs. 4.0 PROPOSED INCIDENTAL TAKE OF COVERED SPECIES The impacts of the DRECP Preferred Alternative on biological resources, including impacts to Covered Species, are described and analyzed in Volume IV.7 (Environmental Consequences, Biological Resources). The methodology for quantifying impacts to Covered Species (i.e., the effects of incidental take) is explained in Volume IV.1.2 (Summary of Alternatives Analyzed), IV.1.4 (Approach to Impact Assessment), IV.7.1 (Biological Resources, Approach to Impact Analysis), and IV.7.3.2 (Impact Analysis by Alternative, Preferred Alternative). Incidental take is initially estimated by the surrogate of ground-disturbance to modeled habitat for each Covered Species; these impacts will be minimized and mitigated by implementation of species-specific, and in some cases by community-level and landscape-level, CMAs. Please see Volume IV.7.3.2.4 for a summary of impacts to Covered Species under the GCP as we propose it in the Preferred Alternative. Appendix R.IV.7 contains tables that show acreage impacts to each Covered Species under the Preferred Alternative. In addition, Table 9.1-1 below is a spreadsheet that shows the residual impacts to modeled habitat for each Covered Species after implementation of avoidance and minimization CMAs, which represents the anticipated maximum level of incidental take that would result from Covered Activities and that could be authorized under the GCP. Operational impacts associated with solar reflectance and flux, other aspects of solar facility infrastructure (e.g., photovoltaic panels, evaporation ponds), transmission power lines, and wind turbines (rotor-swept area) are analyzed as numbers of animals (birds and bats) injured or killed, as discussed in Volume IV.7.3.2.1 (Plan-wide Impacts of Implementing the DRECP: Preferred Alternative). In particular, Table IV.7-84 shows the estimated range of bird and bat collisions per year at full build-out of renewable energy development in the GCP Permit Area, for all species of birds and bats. Table IV.7-54 in Volume IV.7.3.2.1 and Table 9.1-1 below indicate that the




estimated incidental take of bird and bat Covered Species in the GCP Permit Area through 2040 is about 650 birds and 130 bats. 5.0 PROPOSED MINIMIZATION AND MITIGATION MEASURES 5.1 Conservation and Management Actions (CMAs) The DRECP’s interagency conservation strategy is described in Volume II.3.1.2 (Preferred Alternative, Conservation Strategy). CMAs for Covered Species include avoidance and minimization measures, as well as appropriate compensation ratios required to mitigate the residual effects of take after avoidance and minimization CMAs have been applied. Table 9.1-1 below shows the estimated level of incidental take, in acres of modeled habitat, for each Covered Species after implementation of avoidance and minimization CMAs, and the acres of mitigation lands required to compensate for that take, according to the compensation ratios included in the CMAs detailed in Volume II.3.1.2.5.7 (Compensation Conservation and Management Actions). Table 9.1-1 also shows the acreages within the Interagency Plan-Wide Conservation Priority Area that will be available as mitigation options for applicants under the GCP (including non-Federal acquisitions within the CPAs, and in non-Federal inholdings within Existing Conservation Lands and BLM LUPA Conservation Designations). Table 9.1-2 notes whether sufficient lands are available within the Interagency Plan-Wide Conservation Priority Area to compensate for the anticipated levels of take. Applicants generally would provide for the required compensation by paying a mitigation fee. The mitigation fee is the same fee referred to as the DRECP “implementation fee” in Volume II.1.5 (Preferred Alternative, Plan Implementation). In general, applicants will have the following mitigation options:

1. Payment of the mitigation fee, based on the estimated level of incidental take for each Covered Species after implementation of CMAs, for the acres of mitigation lands required under appropriate CMA compensation ratios.

2. Donation of appropriate conservation lands acquired by the permittee to the DRECP Conservation Area, including a proportional monetary contribution to the DRECP endowment to support long-term monitoring and management of the DRECP Conservation Area through the DRECP Monitoring and Adaptive Management Program (MAMP). Refer to Volume II.1.5.5 (DRECP Biological Conservation and Mitigation Program) for details on permittee conveyance of mitigation lands to the DRECP Conservation Area.

3. Dedication through a conservation easement of appropriate off-site, permittee-owned lands to the DRECP Conservation Area, including a proportional monetary contribution to the DRECP endowment to support long-term monitoring and management of the DRECP Conservation Area through the MAMP. Refer to Volume II.1.5.5 (DRECP Biological Conservation and Mitigation Program) for details on permittee conveyance of mitigation lands to the DRECP Conservation Area.

4. Payment of the DRECP mitigation fee to fund implementation of non-acquisition measures for certain Covered Species. Adequate mitigation may include a combination of land acquisition and non-acquisition mitigation measures.




For options 2 and 3, during the preliminary integrated project proposal review process described in Volume II.3.1.5.3, the DRECP Coordination Group will determine the amount that the applicant must contribute toward the DRECP endowment for implementing the MAMP. The roles and responsibilities of the DRECP Coordination Group are described in Volume II.3.1.5.2.4. USFWS will be a member of the Coordination Group. The CPAs are non-Federal lands within the DRECP Plan-Wide Reserve Design Envelope that fall outside of Existing Conservation lands and BLM LUPA Conservation Designations (see Glossary of Terms). The DRECP Conservation Area will be assembled from lands within the mapped CPAs by acquiring land in fee-title or conservation easement from willing sellers. For permits issued under the GCP, CPAs are where land acquisitions will be focused to mitigate the effects of incidental take of Covered Species. Mitigation also may be directed toward non-Federal inholdings within Existing Conservation Areas and BLM LUPA Conservation Designations. The DRECP Coordination Group will manage mitigation fees received from GCP permittees, and oversee and prioritize the acquisition of mitigation lands for the DRECP Conservation Area. Please refer to Volume II.3.1.5.5 (Preferred Alternative, Implementation Plan, DRECP Biological Conservation and Mitigation Program) for the criteria the Coordination Group will use to identify suitable lands for mitigation acquisition. In addition to acquisition of conservation lands in fee-title or by conservation easement, mitigation options may include implementation of non-acquisition mitigation measures for certain Covered Species, as described in Volume II.3.1.2.5 (Preferred Alternative, Biological Conservation and Management Actions), Appendix H (CMAs Documentation), and Table H-8 (Eligible Compensation Actions for Impacts to DRECP Covered Species). Non-acquisition mitigation measures may be implemented in limited circumstances on Federal lands that are not part of the GCP Permit Area, but are within the GCP Plan Area and consistent with the species-specific conservation strategies of the Plan-wide biological goals and Objectives (BGOs). Non-acquisition mitigation measures will be considered for implementation within the Interagency Plan-Wide Conservation Priority Area, which includes some lands within BLM LUPA Conservation Designations on the condition that any BLM requirements for species conservation have already been met. That is, any non-acquisition measures implemented by GCP permittees would be over and beyond any BLM requirements to conserve species. Any incidental take that results from habitat enhancement or restoration activities implemented as non-acquisition mitigation measures on Federal lands would be exempted as appropriate through the ESA section 7 consultation process. Section 10 regulatory assurances, in particular “No Surprises” assurances, will not apply to Federal agencies where non-acquisition mitigation measures take place on Federal lands. In general, non-acquisition mitigation measures may be approved on Federal lands where those measures would more effectively mitigate the effects of take for certain Covered Species than would land acquisition, and where those measures would contribute to implementing specific objectives in the Plan-Wide BGOs. For some Covered Species, mitigation may involve a combination of acquisition of conservation lands and implementation of non-acquisition mitigation measures. We cannot estimate the actual acreage of lands where permittee non-acquisition mitigation activities may be implemented at this time, but it likely represents an equivalent of up to 10% to




50% of the acquisition needed in the Interagency Plan-Wide Conservation Priority Area to mitigate the effects of incidental take for most Covered Species, although for certain Covered Species it may be higher. For desert tortoise, golden eagle, and desert pupfish, the amount of non-acquisition measures may represent up to 70% of the required acquisition, and up to 80% for Owens pupfish, Owens tui chub, desert bighorn sheep, and desert kit fox. For example, for desert tortoise, up to 70% of a permittee’s total mitigation fee may be used to fund fence construction or other habitat protection or enhancement actions. Please refer to Table H-8 in Appendix H for a list of appropriate non-acquisition measures that potentially would be approved for certain species. During the preliminary integrated project proposal review process, the DRECP Coordination Group will provide input to the applicant regarding the cost of appropriate non-acquisition mitigation measures. Acreage estimates for the GCP’s total contribution to the DRECP Conservation Area are shown in Table II.3-59 in Volume II.3.4 (GCP Elements of the Preferred Alternative), GCP tables in Appendix R.IV.7, and Table 9.1-1 below. Because it is unknown where project-specific non-acquisition mitigation measures may be implemented, the estimate of the GCP’s contribution to the Interagency Plan-Wide Conservation Priority Area identified in Table II.3-59 and Table 9.1-1 does not represent the actual acreages where non-acquisition measures may be implemented. Instead, Table 9.1-1 shows the acreage available for non-acquisition mitigation outside the GCP Permit Area, which in general are BLM LUPA Conservation Designations. Operational impacts to Covered Species (birds and bats) will be addressed by permittee implementation of CMAs to avoid, minimize, and compensate for those impacts (refer to Volume II.3.1.2.5 [Preferred Alternative, Biological Conservation and Management Actions). 5.2 Maximum Extent Practicable The incidental take issuance criterion at ESA section 10(a)(2)(B)(ii) requires that an applicant will, to the maximum extent practicable, minimize and mitigate the effects of the proposed taking. If USFWS finds that issuance criteria are met for the GCP as a whole, then any application that is consistent with the terms and conditions of the GCP would also meet the issuance criteria. After public review of the proposed GCP and completion of an internal ESA section 7 consultation on the GCP, we will prepare a “Findings and Recommendations” statement (Findings) for the GCP. The Findings will include a determination of whether the GCP meets the ESA criteria for issuing incidental take permits. We will use the following analytical process to determine whether the GCP meets the “maximum extent practicable” criterion: (1) define the anticipated amount of take and the effects of that take on Covered Species; (2) determine whether the GCP’s minimization and mitigation measures (i.e., the CMAs) are adequate to offset the effects of take; (3) provide a clear, documented biological rationale regarding the adequacy of mitigation in the ESA section 7 biological opinion and Findings; (4) note in the administrative record whether the mitigation is consistent with other HCPs covering the same species, and if not, explain why the mitigation in the GCP is adequate; and (5) explain how the take would be minimized and mitigated to the maximum extent practicable.




We will use the analysis of the proposed GCP under the Preferred Alternative and the other alternatives (including No Action) in the Final DRECP and Final EIR/EIS to help us determine whether the effects of take under the GCP would be minimized and mitigated to the maximum extent practicable. For example, we will examine whether there are alternatives that are more protective of species by proposing more conservation, less development, or both. The alternatives analysis in the Final EIR/EIS will help us evaluate the adequacy of the proposed mitigation under the Preferred Alternative, and determine whether additional mitigation would be impracticable. We must demonstrate that the maximum amount of incidental take expected to result for each Covered Species within the GCP Permit Area would be minimized and mitigated to the maximum extent practicable. We will make this conclusion based on the assumption that the level of take anticipated for each Covered Species would be mitigated at required compensation ratios by acquisition of appropriate conservation lands available within the Interagency Plan-Wide Conservation Priority Area and by implementation of appropriate non-acquisition mitigation measures. 6.0 ALTERNATIVES TO THE TAKING PROPOSED IN THE GCP ESA section 10(a)(2)(A)(iii) requires that a conservation plan must specify alternative actions to the proposed taking that the applicant considered and the reasons why such alternatives are not being utilized. This analysis is distinct from the alternatives evaluated under NEPA. NEPA alternatives are evaluated in the context of impacts to the human environment (i.e., all resources addressed in Volumes III and IV); alternatives to the proposed taking under the GCP evaluate only impacts to Covered Species in the GCP Permit Area as proposed under the Preferred Alternative. Moreover, there is no “applicant” for the GCP; the USFWS has developed the GCP as a programmatic approach for issuing individual incidental take permits for applications that are consistent with the GCP. Therefore, as the sponsoring agency for the GCP, we will evaluate alternatives to the proposed taking under the proposed GCP as it is analyzed in the Preferred Alternative of the Draft DRECP and Draft EIR/EIS. In the case of the proposed GCP, a No Action Alternative (i.e., no approval of a GCP and no issuance of permits under a GCP) likely would not result in fewer impacts to Covered Species. If we do not approve the GCP, applicants for renewable energy projects on non-Federal lands would have the option of applying for individual incidental take permits for their proposed projects or programs. In the absence of the GCP, we assume project proponents would prepare HCPs for renewable energy development on non-Federal lands throughout the DRECP Plan Area. Such applicants would not necessarily direct their projects to low biological conflict areas, such as the DRECP’s DFAs. Moreover, there would be no comprehensive reserve design based on strategic habitat conservation and conservation biology principles for mitigation of project impacts to listed species. To date, we are working with two renewable energy HCP applicants in the California desert, and we are uncertain about the future demand for individual renewable energy HCPs. In general, however, we consider that lack of a GCP option would not necessarily result in less take of listed species than the GCP under the DRECP’s Preferred Alternative, simply because more non-Federal lands would be considered for potential development. Furthermore, lack of a GCP option would not respond to the USFWS’s directive to advance the Department of the Interior’s (DOI) national policy goals to identify and prioritize specific




locations best suited for large-scale production of solar energy on public lands and encourage the production, development, and delivery of renewable energy as one of DOI’s highest priorities. During the public scoping period for the DRECP Draft EIR/EIS (July 29 – September 12, 2011), the REAT agencies received comments, suggestions, and other information regarding the scope of issues and alternatives to be considered in the DRECP. After considering the comments, the REAT agencies determined that the following alternatives described in Volume II.8 (Alternatives Considered But Not Carried Forward) would not be included as alternatives analyzed in the Draft EIR/EIS): (1) Distributed Generation Alternative, (2) Center for Energy Efficiency and Renewable Technologies (CEERT) Proposed Solar Areas Alternative, (3) California Wind Energy Association (CalWEA) Proposed Wind Areas Alternative, (4) BLM Lands Only Alternative, (5) Private Lands Only Alternative, (6) Dispersed Development Alternative, (7) Southeast Emphasis Alternative, and (8) Avian Avoidance Alternative. We considered these alternatives and determined that a GCP component under alternatives (1) and (8) likely would result in less incidental take of Covered Species than the proposed GCP under the Preferred Alternative. The paragraphs below briefly summarize alternatives (1) and (8) and why neither one of them is being utilized as a GCP option for the DRECP. Distributed Generation Alternative Distributed generation refers to the installation of small-scale solar energy facilities producing up to 20 MW at individual locations at or near the point of consumption, such as residential roof-top solar panels. For the GCP, this alternative would partially address the purposes of the ESA by providing a means whereby the ecosystems upon which federally protected species depend may be conserved and by providing a program for the conservation of such species. Because sensitive desert habitats would not be disturbed by large, utility-scale solar facilities, we consider this alternative likely would result in less take of Covered Species under the GCP than would occur under the GCP as a component of the DRECP’s Preferred Alternative. For a variety of reasons (e.g., upper limits on integrating distributed generation into the electric grid, cost, lack of electricity storage in most systems, and continued dependency of buildings on grid-supplied power), the REAT agencies determined that distributed energy generation alone cannot meet California’s goals for renewable energy development. Ultimately, both utility-scale and distributed generation renewable energy development will be needed at increased levels. Because this alternative conflicted with the DRECP renewable energy goals, the REAT agencies did not advance it for further analysis. The USFWS supported that decision because this alternative would not respond to our commitment to advance DOI’s national policy goals to identify and prioritize specific locations best suited for large-scale production of solar energy on public lands and to encourage the production, development, and delivery of renewable energy as one of DOI’s highest priorities. Avian Avoidance Alternative This alternative would revise the DRECP planning area to avoid impacts to eagles, exclude areas that overlap with California condor use areas, and exclude areas that support high densities of wintering or migratory birds, contain a high level of raptor activity, or contain breeding, wintering, or migrating populations of less abundant species. For the GCP, this alternative would




partially address the purposes of the ESA as noted above for the Distributed Generation Alternative. Because important avian habitats would not be disturbed and take of avian Covered Species resulting from Covered Activities would not occur, we consider this alternative likely would result in less overall take of Covered Species than would occur under the GCP as a component of the DRECP’s Preferred Alternative. However, to avoid impacts to birds, renewable energy development likely would not be concentrated in defined DFAs that are most suited for development and that would have fewer conflicts with long-term conservation and management of non-avian Covered Species, and thus would potentially pose high biological resource conflicts to other wildlife. The REAT agencies rejected the Avian Avoidance Alternative for further analysis because it would only partially meet the purpose of the DRECP to streamline renewable energy and provide for long-term conservation and management of all Covered Species. The USFWS supported that decision because this alternative would not respond to our commitment to advance DOI’s national renewable energy policy goals, as noted above. 7.0 GCP IMPLEMENTATION The GCP will be implemented within the DRECP Plan-wide implementation structure described in Volume II.3.1.5 (Preferred Alternative, Plan Implementation). 7.1 Application Process 7.1.1 Applicant Responsibilities Applicants for incidental take authorization associated with renewable energy or transmission proposals may include state agencies, local governments (such as cities or counties), or individual landowners or project proponents. Applicants also may be owners or operators of existing renewable energy facilities that are consistent with the GCP’s Covered Activities and that are located within DFAs. Owners/operators of such existing facilities may apply for a permit under the GCP only for operational impacts to Covered Species that will occur after permit issuance, and must agree to implement the CMAs to avoid, minimize, and mitigate operational impacts contained in Volume II.3.1.2.5 (Preferred Alternative, Biological Conservation and Management Actions). State agencies and local governments, if issued a “master” permit under the GCP for their programs, would be able to extend their incidental take authorization to qualified third-party project proponents over which the agency or local government has jurisdiction. USFWS permit regulations at 50 CFR 13.25(d) specify that, “[e]xcept as otherwise stated on the face of the permit, any person who is under the direct control of the permittee, or who is employed by or under contract to the permittee for purposes authorized by the permit, may carry out the activity authorized by the permit.” As defined at 50 CFR 13.25(e), in the case of incidental take permits issued to a state or local governmental entity, “a person is under the direct control of the permittee where: (1) The person is under the jurisdiction of the permittee and the permit provides that such person(s) may carry out the authorized activity; or (2) The person has been issued a




permit by the governmental entity or has executed a written instrument with the governmental entity, pursuant to the terms of the implementing agreement.” The permittee is ultimately responsible for the compliance of all third parties to which they extend incidental take authorization. Permittees must (1) require third parties to implement the terms and conditions of the agency’s permit, (2) monitor compliance with the permit terms and conditions by third parties granted take authorization, and (3) take action to enforce compliance with the permit terms and conditions if necessary. To ensure the conservation commitments of the permit are met, the permittee is responsible for reporting to the USFWS on the activities and take levels of all third parties. CEC and CSLC are examples of state agencies that are requesting the capacity for third-party take authorization (see Section 11.0, below). Third-party project proponents who are under the “direct control” of a master permit holder (such as CEC or CSLC) may be covered by the take authorization in the master permit at the agency’s discretion. Individual project proponents usually come under the direct control of the master permit holder through issuance of a certificate of inclusion, letter of participation, state license or lease (such as that required by CEC and CSLC, respectively), or building/grading permit. If a project proponent requests a lease from CSLC for development of a renewable energy facility that is under CEC’s licensing jurisdiction (i.e., solar thermal or geothermal facilities producing 50 MW or more), then that proponent must apply for third-party take authorization from CEC, not CSLC, as discussed in Volume II.3.1.5.2.2 (Roles and Responsibilities for Implementation of DRECP Planning Components). These conditions also apply to other state agencies or local jurisdictions who obtain a master permit under the GCP. Permit applicants must submit a complete application package to the Palm Springs Fish and Wildlife Office (777 East Tahquitz Canyon Way, Suite 208, Palm Springs, California 92262). A complete application package includes a Federal Fish and Wildlife Permit Application Form 3-200-56 signed by the applicant, a $100.00 application fee (not required for government agencies), a proposed Habitat Conservation Plan (HCP), an analysis of the effects to Covered Species of the requested take authorization, and an analysis of the proposed permit issuance under NEPA. For the HCP and NEPA requirements, the application need only refer to the appropriate GCP sections of the Final DRECP and Final EIR/EIS, when it is approved through the signing of a ROD. Applicants must also submit additional information with Form 3-200-56 to demonstrate compliance with the terms and conditions of the GCP as set forth in this Appendix M. The Palm Springs Fish and Wildlife Office will determine whether an application package is complete, and will forward the complete package to the Pacific Southwest Regional Office’s HCP Coordinator for processing. As required by ESA section 10(c), the Regional Office will arrange for publication of a Notice of Availability in the Federal Register for each application received. Table 7.1.1-1 lists the additional information applicants must provide with Form 3-200-56. See also Volume II.3.1.5.3 (Integrated Project Proposal Review Process).




Table 7.1.1-1. Additional Information Required for Incidental Take Permit Applications under the USFWS General Conservation Plan (items marked * must include citations of the DRECP volume and chapter/section that supplements or provides background for the required information).

PROJECT OR PROGRAM DESCRIPTION: o Project or program title. o Project or program location map with address, city/county, Assessor’s Parcel

Number (APN), and latitude/longitude coordinates. o Requested permit duration. o *Description of Covered Activities, including the size and type of proposed

renewable energy facility (MW and technology type) or transmission development, with estimated acres of permanent ground disturbance, and of rotor-swept area for wind turbines.

o *Description of all aspects of project siting, construction, operations and maintenance, and decommissioning, including pre-construction and clearance surveys for Covered Species.

o For state agency or local government programs that will extend incidental take authorization to third parties, a description of the program’s purpose and how it is implemented, and the criteria the agency or local government will use to decide whether to extend take authorization to third parties. The program description must specify how the permittee will (1) require third parties to implement the terms and conditions of the agency’s permit, (2) monitor compliance with the permit terms and conditions by third parties granted take authorization, and (3) take action to enforce compliance with the permit terms and conditions if necessary.

PROJECT OR PROGRAM BASELINE: o *Proposed list of Covered Species. o *Tables of baseline acres of modeled habitat for each Covered Species in the

project or program area. o Results of any site-specific presence/absence surveys required for Covered

Species, including number, age, and sex of such species to the extent known. PROJECT OR PROGRAM IMPACTS AND MITIGATION:

o *Tables showing the impact acres of modeled habitat for each Covered Species after avoidance and minimization CMAs have been applied (i.e., the amount of incidental take to be covered by the permit), for which the applicant will need to provide mitigation.

o *An analysis of operational impacts likely to result in injury or mortality of Covered Species (birds and bats), and how those impacts will be minimized.

o *A list of the CMAs required to be implemented for the affected Covered Species. o *Description, including schedules and timeframes, for implementation of any

proposed non-acquisition mitigation measures for Covered Species. CRITICAL HABITAT ANALYIS:

o *Tables showing the acres of designated or proposed critical habitat that occur on project sites or within the jurisdiction of agency programs.




o *Tables showing the acres of designated or proposed critical habitat that will be impacted on project sites or within the jurisdiction of agency programs.

o *Tables showing the residual impact acres of critical habitat after avoidance and minimization CMAs have been applied, for each ESA-listed species for which critical habitat has been designated on project sites or within the jurisdiction of agency programs.

o *Description, including schedules and timeframes, for implementation of any measures required to offset any potential destruction or adverse modification of designated critical habitat on project sites or within the jurisdiction of agency programs (e.g., a list of applicable CMAs the applicant will implement to offset impacts to critical habitat).

FUNDING ASSURANCES: o Detailed description of the costs of implementing the terms and conditions of the

permit, and documentation of how the applicant will assure funding for those obligations over the life of the permit.

CHANGED AND UNFORESEEN CIRCUMSTANCES o *Detailed description of how the permittee will respond to Changed

Circumstances for renewable energy projects or programs. MONITORING AND REPORTING:

o *Description of how the applicant will assure monitoring compliance with the permit terms and conditions. State agency and local government permittees with third-party take authorization must describe how they will report to the USFWS on the activities of all third parties, to ensure permit take limits are not exceeded and the conservation commitments of the permit are met,

OTHER MEASURES: o A Bird and Bat Conservation Strategy (BBCS) outlining how the project or

program will minimize impacts to non-Covered Species that are protected under the Migratory Bird Treaty Act (MBTA), as described in Section 7.6.3.2.1 below. For state agency or local government programs that will extend incidental take authorization to third parties, the agency or local government must require third parties to provide a BBCS for site-specific proposals that are likely to impact MBTA-protected migratory birds.

o A cultural resources survey report detailing all available information to determine whether historic properties are present in the project area, including results of any field surveys, needed for USFWS compliance with Section 106 of the National Historic Preservation Act (NHPA). For state agency or local government permittees that will extend incidental take authorization to third parties, the agency or local government must require third parties to provide a cultural resources survey and a proposed mitigation protocol for site-specific proposals that are likely to impact cultural resources.




7.1.2 DRECP Coordination Group Responsibilities The DRECP Coordination Group (of which USFWS is a member) will oversee a preliminary integrated project proposal review process for the Plan-wide DRECP, including proposals on BLM lands under the LUPA and NCCP, and on non-Federal lands under the NCCP and GCP, as detailed in Volume II.3.1.5.3 (Integrated Project Proposal Review Process). Applicants for permits under the GCP may take advantage of this optional, pre-application review of their proposed projects for a preliminary recommendation as to the consistency of the proposal with the DRECP. The Coordination Group’s Program Manager will direct applicants to the correct permitting agency or agencies and to official agency application forms. The Coordination Group also will provide input to the applicant regarding appropriate non-acquisition mitigation measures. In general, with or without the optional preliminary review by the Coordination Group, the USFWS intends to reach a permit decision within 1 year from the time we receive a complete application package. 7.1.3 USFWS Approval After consideration of public comments on the GCP component of the Draft DRECP and Draft EIR/EIS, USFWS will decide whether to approve the GCP for issuance of incidental take permits to applicants who demonstrate consistency with the GCP. This consistency evaluation will be based on the impact (incidental take) analysis contained in Appendix M (General Conservation Plan) and Volume IV.7.11 (Environmental Consequences, Preferred Alternative, General Conservation Plan), Section 9.0 below, and our internal ESA section 7 consultation on the GCP. In addition, we will prepare a “Findings and Recommendations” statement (Findings) that summarizes how the GCP meets ESA incidental take issuance criteria. If the conclusions of the section 7 biological opinion and the Findings are positive, we will recommend that our Pacific Southwest Region Regional Director sign a Record of Decision for the Final DRECP and Final EIR/EIS. All records regarding approval of the GCP, and of any permit decisions under the GCP, will be kept on file at the Palm Springs Fish and Wildlife Office and/or the Carlsbad Fish and Wildlife Office (2177 Salk Avenue, Suite 250, Carlsbad, California 92008). Once we approve the GCP through the documentation described above, we will consider permit applications for incidental take resulting from renewable energy projects or programs in the GCP Permit Area. Upon receipt of a complete application package, we will decide whether to issue a permit to the applicant, subject to a determination of eligibility pursuant to 50 CFR 13.21(c) (disqualifying factors) and completion of any administrative or noticing requirements. If we find an application consistent with the GCP and the impact (incidental take) analysis contained in Appendix M (General Conservation Plan), Volume IV.7.11 (Environmental Consequences, Preferred Alternative, General Conservation Plan), and our internal ESA section 7 consultation on the GCP, we may issue a permit to the applicant. The documents noted here will be the foundation of the administrative record we will use to support our permit decisions. In addition to the documents noted above, the administrative record for each permit decision will contain an individual Findings statement summarizing how the application is consistent with the terms and conditions of the GCP, including how the application meets ESA incidental take




issuance criteria. We will prepare a similar Findings statement summarizing how the application meets NEPA requirements through consistency with the analysis contained in the Final DRECP and Final EIR/EIS. The Palm Springs Fish and Wildlife Office will review each permit application and transmit draft Findings statements to the USFWS Pacific Southwest Regional Office. The Regional Office will review the Findings, and if the Deputy Regional Director approves the statement, she/he will issue the permit. All records on permit decisions will be kept on file at the Palm Springs Fish and Wildlife Office and/or the Carlsbad Fish and Wildlife Office. 7.2 Funding Assurances 7.2.1 Applicant Funding Assurances for Implementing Permit Terms and Conditions ESA section 10(a)(2)(A)(ii) requires that the applicant must specify in the conservation plan the funding that will be available to implement the plan. Each applicant for a permit under the GCP must provide financial assurances that they can fund implementation of their permit requirements, including implementing CMAs on their project sites; monitoring and reporting on compliance with permit terms and conditions, including incidental take levels, on their project sites; adaptive management responses on their project sites; and staff costs associated with permit administration. The applicant must also pay a comprehensive mitigation fee to cover the acquisition of mitigation lands within the DRECP Reserve and for implementation of appropriate non-acquisition mitigation measures. The mitigation fee also will include the applicant’s contribution toward funding the DRECP interest-bearing endowment to cover the applicant’s proportional share of costs for MAMP implementation. The MAMP will provide for the DRECP Coordination Group’s management of the acquired mitigation lands and any implementation of any non-acquisition mitigation measures, monitoring and reporting on the effectiveness of the DRECP Conservation Area in achieving the Plan-Wide BGOs, and responding to Changed Circumstances within the DRECP Conservation Area. Please refer to Volume II.3.1.3 (Preferred Alternative, Monitoring and Adaptive Management Program) for details on the DRECP MAMP. The mitigation fee required of GCP applicants is the same fee referred to as the DRECP implementation fee in Volume II.1.5 (Preferred Alternative, Plan Implementation). The implementation fee will be designed to recover appropriate levels of DRECP costs. The fee structure may be dependent on individual project situations and will require further analysis. For a detailed analysis of land acquisition costs and of costs to implement non-acquisition mitigation measures, refer to Volume II.3.1.7 (Cost and Funding) and Appendix I (Cost Methods, Assumptions and Categories for DRECP Mitigation Cost Estimation). The cost analysis in Volume II.3.1.7 is based on the simplifying assumption that mitigation land will be acquired in full fee, resulting in a conservative estimate of total cost (i.e., more likely to overestimate costs than to underestimate them). This assumption is necessary because land acquisition costs can be estimated more accurately and reliably than other kinds of conservation actions, such as conservation easements. The non-acquisition mitigation measures included in the cost analysis are based on certain types of habitat restoration and protection actions, and focus on four general actions that the REAT agencies expect to be the predominant methods;




however, all methods outlined in Table H-8 of Appendix H (CMAs Documentation) are possible. The four non-acquisition mitigation measures considered in the cost analysis are (1) habitat enhancement; (2) fencing and signage; (3) roost habitat creation, enhancement, and protection; and (4) predator, cowbird, or starling control. The assumptions for these analyses are discussed further in Appendix I. Cost projections for mitigation acquisition, non-acquisition mitigation measures, and activities related to managing the DRECP Conservation Area are described in Volume II.3.1.7 (Preferred Alternative, Implementation Plan, Cost and Funding), Volume II.3.1.7.1 (Cost to Implement the GCP and NCCP), Volume II.3.1.7.2 (Cost Estimate Methodology), and Appendix I (Cost Methods, Assumptions and Categories for DRECP Mitigation Cost Estimation). As part of the permit application (see Section 7.1.1 above), each applicant must provide a realistic estimate of the various categories of costs needed to implement the terms and conditions of their permit, and the funding sources to support those costs over the life of the permit. The actual costs over time may turn out to be more or less than those projected in Volume II.3.1.7, and the DRECP Coordination Group will ensure that the fee is re-evaluated periodically and adjusted as necessary to reflect actual acquisition, management, and inflation costs. The Coordination Group will manage receipt of the mitigation fees, as discussed in Volume II.3.1.5.2.4 (Preferred Alternative, Implementation Plan, DRECP Coordination Group), and will use the fees to establish an interest-bearing conservation endowment. The Coordination Group may seek the support of an entity such as the National Fish and Wildlife Foundation to serve as a fiscal agent for collecting the mitigation fees and administering the conservation endowment.

For the USFWS to be reasonably certain that mitigation lands will be acquired and non-acquisition mitigation measures will be implemented as appropriate, the applicant must provide assurances to the USFWS that project-specific costs will be covered and the mitigation fee will be paid. Where development will be allowed to proceed prior to acquisition of mitigation lands and implementation of non-acquisition mitigation measures, the permittee must post a bond or other security sufficient to satisfy the mitigation fee at least 30 days prior to the permittee’s initial ground-disturbing activities. A permittee that extends take authorization to third-party project proponents must require those proponents to pay the mitigation fee by similar methods and within the same timeframes. Conservation of mitigation lands will be assured in perpetuity by a conservation easement or other legal mechanism agreed to by the USFWS and DRECP Coordination Group. Acquired mitigation lands will be transferred in fee-title to a non-profit organization approved by the Coordination Group as qualified pursuant to California Government Code section 65965, or to another government entity with either a conservation easement, deed restriction, or other protective measures approved by the Coordination Group over those lands. Please refer to Volume II.3.1.5 (Preferred Alternative, Plan Implementation) for a description of the DRECP Plan-wide implementation structure, which describes the institutional structure and organizational arrangements that will be established to implement the DRECP, including the GCP. Volume II.3.1.5 sets out the roles, functions, and responsibilities of the various entities that will participate in DRECP implementation, including USFWS and permittees under the GCP.




The DRECP Coordination Group, of which USFWS will be a member, will be responsible for day-to-day implementation of DRECP Plan-wide programs and for coordination among DRECP participating entities regarding implementation of each DRECP planning component, including the GCP. DRECP Plan-wide programs include the following activities that involve the Coordination Group’s implementation of certain actions on behalf of GCP permittees, including mitigation land acquisition; implementation of non-acquisition mitigation measures; DRECP Conservation Area monitoring, management, and habitat restoration; adaptive management; data management and access; and finances, including receipt and management of mitigation fee revenues and endowments. Permittees under the GCP will participate in the Plan-wide programs by providing funding, through payment of the mitigation fee, to support those programs. 7.2.2 USFWS Funding Assurances for Administering the GCP USFWS funding assurances for administering the GCP (i.e., dedication of staff time for application review, participation in the DRECP Coordination Group, etc.) are contingent on annual Congressional budget allocations and are subject to the Antideficiency Act. Recent DOI budgets for the USFWS have included funding for activities associated with energy development, including funding for the Ecological Services Planning and Consultation program to support approvals of renewable energy projects. The Palm Springs Fish and Wildlife Office is a field office within the USFWS Ecological Services program, and provides expert technical assistance and conservation recommendations to facilitate the siting, construction, and operation of renewable energy and transmission projects in order to avoid or mitigate adverse impacts to fish and wildlife and their habitats. To complete comprehensive renewable energy and conservation plans such as the DRECP will require intense, focused, and dedicated attention from Palms Springs Fish and Wildlife Office and Pacific Southwest Regional Office staff for the foreseeable future. The proposed GCP, through its programmatic, streamlined permitting process, is intended to reduce the usual USFWS field office and regional office staff costs needed to work with individual project proponents to develop project-specific HCPs. The Pacific Southwest Regional Office will dedicate staff time and resources to the Regional Office and the Palm Springs field office to implementation and administration of the DRECP as part of normal budget allocations for Ecological Services programs. 7.3 Monitoring, Reporting, and Adaptive Management 7.3.1 Monitoring Permittees and third-parties with take authorization will be responsible for monitoring their project sites throughout all phases of siting, construction, operations and maintenance, and decommissioning. The DRECP Coordination Group will monitor the DRECP Conservation Area, which will include permittee-funded acquired mitigation lands and implementation of appropriate non-acquisition mitigation measures. The DRECP adaptive management program will be informed by the monitoring program and will be managed by the DRECP Coordination Group, as described in Volume II.3.1.5.7 (Preferred Alternative, Implementation Plan, Annual Reporting).




7.3.1.1 Compliance Monitoring Compliance monitoring includes verifying that (1) incidental take of Covered Species does not exceed the level authorized by the permit, and (2) each permittee is carrying out the terms and conditions of their incidental take permit. Verifying compliance is the primary responsibility of the USFWS. Permittees will monitor the implementation of Covered Activities and CMAs on their project sites and annually report the results to USFWS. 7.3.1.2 Effectiveness Monitoring Effectiveness monitoring determines whether a permit issued under the GCP is contributing toward achieving the Plan-Wide BGOs, for example by tracking any changes in the status or habitat of Covered Species. Refer to Volume I.3.3.3 (DRECP Biological Planning Process), II.3.1.2.3 (Preferred Alternative, Biological Goals and Objectives), and Appendix C (Biological Goals and Objectives) for a description of the Plan-Wide BGOs. Permittees, with the assistance of USFWS, are primarily responsible for verifying the effectiveness of CMAs on their project sites. The DRECP Coordination Group is responsible for monitoring the effectiveness of the DRECP Conservation Area, which will include permittee-funded acquired mitigation lands and appropriate non-acquisition mitigation measures. Refer to Volume II.3.1.3.4.2 (Preferred Alternative, Plan Implementation, Effectiveness Monitoring). 7.3.1.3 Annual Reporting To document compliance with the terms and conditions of permits issued under the GCP, each permittee will prepare and submit an annual report by March 31 to the Palm Springs Fish and Wildlife Office for the preceding calendar year. We will provide a copy of the annual report to the DRECP Coordination Group, which will make it available to the public on the DRECP website (http://www.drecp.org). The annual report will include: (1) results of biological monitoring at project sites, including the level of take of Covered Species that occurred during the previous year; (2) description and results of any adaptive management activities implemented at project sites; (3) any responses to Changed Circumstances at project sites; and (4) a summary of any unauthorized activities detected at project sites and enforcement actions taken during the previous year. As part of its oversight of the DRECP Conservation Area, the DRECP Coordination Group will annually report the following to the DRECP Executive Policy Group: (1) the amount of permittee mitigation fees paid into the DRECP conservation endowment; (2) the number of acres and description (with maps) of lands acquired during the previous year as permittee mitigation; (3) the status of Covered Species within the DRECP Conservation Area; (4) any change in existing conditions and adaptive management responses on permittee project sites and mitigation lands within the DRECP Reserve; (5) expenditures for acquisition, monitoring, and management of mitigation lands and appropriate non-acquisition mitigation measures over the previous year; and (6) applicable budgets for the upcoming year. This information will be used by USFWS and the DRECP Coordination Group to document the effectiveness of the GCP and its permittees in contributing toward achieving the Plan-Wide BGOs.




7.3.1.4 Mitigation Timelines (“Stay-Even” Analysis) The DRECP Conservation Area will be assembled over time, and when assembly is completed, must contain suitable habitats (location and acreage) in a configuration that provides for the conservation of Covered Species. Lands acquired with GCP permittee mitigation fees to mitigate for the effects of incidental take of Covered Species will contribute to assembly of the DRECP Conservation Area. The DRECP Coordination Group will coordinate and oversee implementation of DRECP-wide programs for GCP permittees, such as land acquisition and management, including DRECP Conservation Area lands acquired as mitigation and implementation of appropriate non-acquisition mitigation measures. Permittees will be responsible for paying the mitigation fee (or separate endowment fee, if the permittee is providing mitigation lands for transfer to the DRECP Conservation Area). The USFWS considers that the GCP will be administered appropriately as long as all GCP permittees are in compliance with their individual, severable permits, which will acknowledge that the DRECP Coordination Group will ensure that permittee land acquisition and/or non-acquisition mitigation measures will be implemented within certain timeframes. The Coordination Group will ensure that the rate of development does not outpace the acquisition of mitigation lands and the implementation of appropriate non-acquisition mitigation measures; i.e., that renewable energy development “stays even” with mitigation. Permittees or holders of third-party take authorizations must pay the mitigation fee to the Coordination Group or otherwise secure the fee before any ground-disturbing activities take place on project sites. In general, as detailed in Volume II.3.1.5.5 (DRECP Biological Conservation and Mitigation Program), all required mitigation will be implemented within 12 months after receipt of the required mitigation fee from the permittee. The Coordination Group, not the permittee, will be responsible for meeting this 12-month standard, unless the Coordination Group (with USFWS concurrence) determines that additional time is necessary and specifies an acceptable time extension. To meet the 12-month standard, the Coordination Group will acquire suitable mitigation lands within 12 months of receipt of the mitigation fee. For approved non-acquisition mitigation measures, the Coordination Group will ensure that certain habitat enhancement features, such as fence construction or initial removal of nonnative invasive plants, are completed within 12 months. For habitat restoration, activities must be initiated within 12 months and completed within 3 years. The Coordination Group will ensure the continuing long-term monitoring and management of the DRECP Conservation Area, including non-acquisition measures, through the MAMP. The Coordination Group also will conduct an annual analysis to show there are sufficient opportunities to acquire new mitigation lands and/or implement non-acquisition mitigation measures before more applications are approved. 7.4 Adaptive Management and Assurances for Unforeseen Circumstances

(“No Surprises” Rule) The DRECP Plan-wide MAMP in Volume II.3.1.3 discusses the USFWS Five-Point Policy on the use of adaptive management strategies for HCPs, including the GCP. Permittees under the GCP will contribute to financing the implementation of the MAMP through payment of their




mitigation fees. The DRECP Coordination Group will be responsible for implementing the MAMP in the DRECP Conservation Area, which will include permittee-funded mitigation lands and non-acquisition mitigation measures, based on the advice and recommendations of the DRECP Adaptive Management Team as described in Volume II.3.1.5.2.4 (Preferred Alternative, Implementation Plan, DRECP Coordination Group). Permittees will be responsible for implementing any project-level changes on their project sites in conformance with the GCP’s adaptive management requirements and the terms and conditions of their permit. The Adaptive Management Team will have primary responsibility for developing MAMP monitoring protocols and standards, and for reviewing and analyzing MAMP monitoring data and reports. Permittees will be responsible for any adaptive management responses on their project sites. The DRECP MAMP anticipates that certain environmental and technological changes will occur throughout the life of the DRECP. We consider certain of these changes as “Changed Circumstances” that must be distinguished from “Unforeseen Circumstances” with respect to ESA “No Surprises” assurances for the GCP. The MAMP allows the DRECP and GCP to be updated as a result of new information on the life history or ecology of Covered Species, or on the effectiveness of minimization and mitigation measures, or other management adjustments that may result from monitoring or research. Based on such new information, conservation measures may be improved, such as technical aspects of mitigation land management and enhancement, implementation of CMAs to avoid and minimize take, and monitoring of Covered Species. The MAMP’s general adaptive management strategy is described in Volume II.3.1.3 (Monitoring and Adaptive Management Plan). 7.4.1 Changed Circumstances Changed Circumstances are defined under the No Surprises Assurances Rule (63 FR 8859, as codified in 50 CFR 17.3, 17.22[b] and 17.32[b]) as changes in circumstances affecting a Covered Species or geographic area covered by a conservation plan, such as the GCP, that can reasonably be anticipated and planned for by permit applicants and USFWS. The GCP incorporates the MAMP’s adaptive management process to address the foreseeable conservation adjustments that permittees will implement in response to new information, risk, or uncertainty. These requirements define the limits of the financial commitments required of permittees, and would enable applicants to assess the potential economic impacts of adaptive management responses to Changed Circumstances before agreeing to the terms and conditions of the GCP and providing funding assurances (through the mitigation fee) to implement them. Any permits issued under the GCP must adopt the adaptive management provisions of the DRECP MAMP for responding to Changed Circumstances, as detailed in Volume II.3.1.3 (Monitoring and Adaptive Management Program). The GCP incorporates the following general process for identifying and responding to Changed Circumstances: (1) preparation of a risk assessment, (2) identification and implementation of preventive measures, and (3) development of a long-term planned response. For expected future conditions within the DRECP Reserve, the DRECP Coordination Group will prepare a risk assessment to predict the probability of Changed Circumstances over the life of the GCP, and determine whether any preventive measures are available that permittees can implement on




project sites and/or that the Coordination Group can implement within the DRECP Conservation Area to prevent or reduce adverse effects to Covered Species. The Coordination Group also will develop a longer-term planned response for adaptive management that includes an impact assessment report, recommended actions to reduce impacts to Covered Species, and additional adaptive strategies such as experimental research or modeling that may be necessary to address uncertainty or lack of information. Changed Circumstances that potentially could affect permittee Covered Activities at project sites or mitigation lands within the DRECP Conservation Area are defined as future events that are reasonably foreseeable to occur during the life of the GCP and of any permits issued under the GCP, and which may adversely affect Covered Species. Permittees will be responsible for responding to Changed Circumstances on their project sites to ensure that the permitted level of incidental take of Covered Species is not exceeded. Changed Circumstances covered under the GCP and any permits issued under the GCP include the following: (1) prolonged drought; (2) changes in fire frequency, intensity, or extent; (3) increased proliferation of existing nonnative species and/or invasion by new nonnative species; (4) changes in hydrology and groundwater resources (including lowered water tables); (5) changes in renewable energy technologies, including measures to avoid or minimize adverse operational impacts to Covered Species; (6) population declines of Covered Species unrelated to implementation of permits issued under the GCP; (7) the general impacts of climate change on each of these conditions; and (8) new listings of species not covered by the GCP and designation or revision of critical habitat for a Covered or non-covered species. Please refer to Volume II.3.1.3 (Monitoring and Adaptive Management Program) for a description of planned responses to these Changed Circumstances that permittees will be required to implement. The mitigation fee paid by each GCP permittee will include the contingency funding needed to support adaptive management responses under the MAMP for responding to these potential Changed Circumstances. We anticipate that the adaptive management requirements that apply to Changed Circumstances under the GCP will be updated in the MAMP during the first 5 years of DRECP implementation (i.e., the first 5 years after a ROD for a Final DRECP and Final EIR/EIS is signed), as discussed in Volume II.3.1.3 (Preferred Alternative, Implementation Plan, Monitoring and Adaptive Management Program). During that time, we will work with the DRECP Coordination Group and GCP permittees to refine the adaptive management process for identifying and responding to Changed Circumstances 7.4.2 Changed Circumstances Not Provided for in the GCP Under the No Surprises Rule at 50 CFR 17.22(b)(5)(ii), the USFWS may not require (1) any conservation or mitigation measures in addition to those provided for under Section 7.4.1 above in response to a changed circumstance; or (2) additional conservation or mitigation measures for any changed circumstance that is not identified in Section 7.4.1 above, without the consent of the permittee, provided the permittee is properly implementing the terms and conditions of their permit issued under the GCP.




7.4.3 Assurances for Unforeseen Circumstances The purpose of the GCP is to provide for the conservation of Covered Species through implementation of measures required to minimize and mitigate the incidental taking of Covered Species in the course of otherwise lawful and permitted activities within the GCP Permit Area. In accordance with the Habitat Conservation Plan “No Surprises” Assurances Rule (63 FR 8859, as codified in 50 CFR 17.3, 17.22[b] and 17.32[b]), except for unforeseen circumstances as addressed in Section 7.4.3.1 below, the USFWS shall not require from any GCP permittee, without the permittee’s consent, the commitment of additional land or financial compensation or additional restrictions on the use of land or other natural resources with regard to Covered Activities and their impact on Covered Species beyond that provided by the permit issued under the GCP, as long as the permittee is properly implementing the terms and conditions of the permit, the GCP, and Implementing Agreement (IA) (if one is used). No Surprises assurances are attached to an incidental take permit upon issuance; each permittee under the GCP would receive these assurances. 7.4.3.1 Unforeseen Circumstances “Unforeseen Circumstances” (50 CFR 17.3) means changes in circumstances affecting a species or geographic area covered by a conservation plan or agreement that could not reasonably have been anticipated by plan or agreement developers and the USFWS at the time of the conservation plan’s or agreement’s negotiation and development, and that result in a substantial and adverse change in the status of the covered species. The term “unforeseen circumstances” in the GCP has the same meaning as it is used to define the limit of any permittee’s obligation in the No Surprises regulations set forth in 50 CFR 17.22 (b)(5) and 17.32 (b)(5). No Surprises assurances are conveyed to all who receive incidental take authorizations under any approved HCP, including a programmatic HCP such as the proposed GCP. Permittees under the GCP will be entitled to No Surprises assurances, unless there are changes to a permittee’s Covered Activities that were not previously analyzed, the Covered Activities would cause adverse effects to species not covered by the GCP and permit, or the permit has been revoked. In deciding whether unforeseen circumstances exist that may warrant requiring additional conservation measures, USFWS shall consider, but not be limited to, the factors identified in 50 CFR 17.22(b)(5)(C) and 17.32(b)(5)(C): (1) the extent of the current range of the affected Covered Species; (2) the percentage of the range of the affected Covered Species and habitat that has been adversely affected by the Covered Activities; (3) the percentage in the range of the affected Covered Species and habitat that has been conserved by the GCP; (4) the ecological significance of that portion of the range or habitat of the affected Covered Species; (5) the level of knowledge about the affected Covered Species and habitat and the degree of specificity of the any permit issued under the GCP for that species or habitat; and (6) whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the Covered Species in the wild. Furthermore, USFWS shall have the burden of demonstrating that unforeseen circumstances exist, using the best scientific and commercial data available. Any findings of unforeseen circumstances must be clearly documented and based upon




reliable technical information regarding the biological status and habitat requirements of the affected species. Except where there is substantial threat of imminent, significant adverse impacts to a Covered Species, USFWS shall provide permittees under the GCP at least 60 calendar days written notice of a proposed finding of unforeseen circumstances. During that time, USFWS shall meet with the responsible permittee(s) and the DRECP Coordination Group to discuss the proposed finding, to provide the permittee(s) with an opportunity to submit information to rebut the proposed finding, and to consider any proposed changes to the conservation strategies for the permitttees’ mitigation lands within the DRECP Conservation Area. If USFWS makes a finding of unforeseen circumstances in accordance with the procedures described above, and determines that additional conservation measures are warranted, such additional conservation measures shall conform to the maximum extent possible to the original terms of the permit issued under the GCP. Additional conservation measures shall be limited to those modifications, restrictions, and agreements described below. The No Surprises Rule states, in part, that in negotiating responses to unforeseen circumstances, USFWS shall not require, without the consent of the permittee, the commitment of additional land, water, or financial compensation, or additional restrictions on the use of land, water (including quantity and timing of delivery), or other natural resources beyond the level otherwise agreed upon for the Covered Species on the incidental take permit issued under the GCP. If additional mitigation measures are deemed necessary to respond to unforeseen circumstances, and the permittee is properly implementing the terms and conditions of the permit issued under the GCP, we may require additional measures of the permittee only if such measures are limited to modifications within any conserved mitigation areas, or to modifications of the permit’s terms and conditions for the conservation of the affected species; we will maintain the original terms and conditions of the permit to the maximum extent possible. Thus, in the event that unforeseen circumstances adversely affect any of the Covered Species during the life of the permit, the permittee, or any third parties with final project approvals that have been granted take authorization would not be required to provide additional financial compensation, land, or land restrictions beyond those required by the permit at the time of issuance without their consent. 7.4.3.2 Responses by Other Entities As recognized in the No Surprises Rule at 50 CFR 17.22(b)(6) and 17.32(b)(6), nothing in the rule limits or constrains the USFWS, or any Federal, state, or local agency, or private entity from taking additional actions at their own expense to protect or conserve a Covered Species within the GCP Permit Area or DRECP Conservation Area. 7.5 Modifications, Amendments, and Permit Administration Modifications and amendments of the DRECP are discussed in Volume II.3.1.5.8 (Implementation Plan, Modifications and Amendments). The DRECP Coordination Group will review, and in some cases may propose, modifications or amendments to the DRECP. An amendment is a change to the DRECP that may require an amendment to the GCP or permits




issued under the GCP. A modification is a change to the DRECP that does not require an amendment to the GCP or permits. Similarly, the USFWS and GCP permittees may propose modifications and amendments of the GCP and permits issued under the GCP, which in turn may require a modification or amendment to the DRECP. In certain situations, incidental take authorization may be transferred from a permittee to another qualified entity. A permittee also may discontinue activities covered by a permit, and the unused incidental take levels may be made available under the GCP to other qualified applicants. See Volume II.3.1.6.3 (Take Allocation Assumptions and Approach) for a description of how incidental take will be allocated among the three components of the DRECP (BLM LUPA, CDFW NCCP, and USFWS GCP). 7.5.1 Modifications Modifications are changes to the GCP or to permits issued under the GCP that involve only administrative changes or negligible, technical details that do not differ significantly from the analysis of effects to Covered Species, the level of incidental take, or a permittee’s ability to implement the terms and conditions of the permit issued under the GCP, as described in the GCP and permit as originally approved and issued. A modification to the GCP will not require modifications to the permits issued under the GCP or to any IAs signed by the USFWS and permittees; likewise, a modification to permits issued under the GCP will not require modification to an IA (if used). Examples of issues requiring an administrative change or modification include: (1) clerical errors in the GCP, permits, or IAs (if used); (2) minor corrections to land ownership; (3) minor revisions to survey, monitoring, reporting, or management protocols that do not affect Covered Species or the functions and values of the DRECP Reserve; and (4) updates or corrections to Covered Species occurrence data. Any permittee or the USFWS may propose a modification to the GCP, the terms and conditions of a permit issued under the GCP, or an IA (if used), by providing written notice to all affected parties (including those receiving third-party take authorization from permittees). The notice must include a description of the proposed modification; an explanation of why the proposed modification is needed; and an analysis of its environmental effects, including any impacts to Covered Species. In addition, the notice must justify why the effects of the proposed modification (1) are not significantly different from, and are biologically equivalent to, the terms and conditions of the GCP or of the permit originally issued under the GCP; (2) substantially conform to the analysis of the GCP as originally approved by the USFWS; and (3) will not significantly reduce the ability of the DRECP Coordination Group or permittee to acquire mitigation lands for inclusion in the DRECP Reserve. The USFWS and affected parties shall submit any comments on a proposed modification in writing within 60 days of receipt of the notice. Any party can request an informal meeting to resolve disagreements concerning modifications, as described in the DRECP Implementation Plan (Volume II.3.1.5.8 [Modifications and Amendments]) and in the IA (if used). Any non-concurrence by the USFWS must occur within 60 days of receipt of the written notice.




7.5.2 Amendments Amendments are proposed changes to the GCP or to permits issued under the GCP that are not modifications as described above. Any permittee or the USFWS may propose an amendment. Amendments may include, but are not limited to: (1) all amendments not considered as modifications as described above; (2) changes to the boundary of the DRECP Plan Area or GCP Permit Area; (4) changes in the boundaries of the DFAs; (4) addition of actions not included as Covered Activities in the GCP; (5) addition of species to the Covered Species list; (6) changes anticipated in assembly of the DRECP Reserve by the DRECP Coordination Group; or (7) funding strategies and schedules that would have substantial adverse effects on the Covered Species. Amendments shall require the same process followed for the original approval of the GCP, including amendment of the IA (if used). The amendment will require public notification and review, NEPA compliance, and internal USFWS section 7 consultation. 7.5.3 Permit Administration 7.5.3.1 Discontinuance of Permit Activity As provided for in 50 CFR 13.26, when a permittee discontinues activities for which incidental take has been authorized by permit, the permittee may return the permit to the issuing office together with a written statement surrendering the permit for cancellation. No refund of any fees paid for issuance of the permit or for any other fees or costs associated with a permitted activity shall be made when a permit is surrendered for cancellation for any reason prior to the expiration date stated on the face of the permit. In addition, the permittee must provide written documentation to the USFWS that any incidental take that has already occurred under the permit has been minimized and mitigated to the maximum extent practicable and that all other permit terms and conditions have been fulfilled up until the time of the requested cancellation. Upon surrender of the permit, no further take will be authorized under the permit. The permit will be deemed cancelled only upon our determination that the required minimization and mitigation measures have been implemented (50 CFR 17.22(b)(7) and 17.32(b)(7)). Any remaining incidental take levels for Covered Species after surrender of a permit will be considered available to other qualified applicants under the GCP, as described in Volume II.3.1.6.3 (Take Allocation Assumptions and Approach). 7.6 Other Measures According to ESA section 10(a)(2)(A)(iv), a conservation plan must specify such other measures that the Secretary of the Department of the Interior (DOI) may require as being necessary or appropriate for the purposes of the plan. The following subsections describe other information applicants must provide to clarify how they will meet the terms and conditions of the requested permit, or to ensure that the permit complies with other relevant laws and regulations.




7.6.1 Implementing Agreement (IA) An applicant under the GCP may request an IA in conjunction with a proposed permit. An IA is a document that clarifies the roles and responsibilities of multiple parties that are implementing a plan, and summarizes the commitments of each party under the plan. An IA is not a contract; rather, the permit terms and conditions are the binding authorization for the permittee. The IA is useful under certain circumstances to provide a common understanding of the activities that will be undertaken to implement the permit terms and conditions. The applicant and USFWS, and any other parties that would be involved in implementing the terms and conditions of a permit, would sign the agreed-upon IA before USFWS makes the final decision on permit issuance. 7.6.2 Five-Point Policy The following are requirements under the USFWS Five-Point Policy, as discussed in Volume I.2.2 (Legal Framework, U.S. Fish and Wildlife Service):

Biological goals and objectives (BGOs) – The GCP will contribute toward achieving the Plan-Wide BGOs that underlie the DRECP, which are described in Volume I.3.3 (DRECP Biological Planning Process) and Appendix C (Biological Goals and Objectives). We will certify, as appropriate, in our Findings statement for the GCP and each incidental take permit application under the GCP that the GCP and permits will contribute to the DRECP’s Plan-Wide BGOs.

Adaptive management – Refer to Section 7.4 above and Volume II.3.1.3 (Monitoring and Adaptive Management Program). We will certify, as appropriate, in our Findings statement for the GCP and each incidental take permit application under the GCP that the GCP and permits will implement appropriate adaptive management requirements, as described in this Appendix M and in the MAMP.

Monitoring for compliance with permit terms and conditions and for effectiveness in meeting BGOs – Refer to Section 7.3.1 above.

Permit duration – The DRECP and GCP, if approved, will be in effect through 2040. Individual applicants may request a shorter permit duration. A longer duration will require renewal or amendment of the GCP and any permits issued under the GCP to extend beyond 2040.

Public participation – The pro

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Draft DRECP and EIR/EIS - U.S. Fish and Wildlife Service · II.3-59 in Volume II.3.1.4). FAAs may be designated either as DFA or part of the DRECP Plan-Wide Reserve Design Envelope