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6.0 BIOLOGICAL RESOURCES - REGULATORY SETTING This Section Describes the Federal and State Policies and Laws Relevant to Biological Resources in the Project Area

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6.0 BIOLOGICAL RESOURCES - REGULATORY SETTING This Section Describes the Federal and State Policies and Laws Relevant to Biological Resources in the Project Area 6.0 BIOLOGICAL RESOURCES - REGULATORY SETTING This section describes the federal and state policies and laws relevant to biological resources in the project area. 6.0.1 Regulatory Environment and Policies 6.0.1.1 Federal Endangered Species Act (ESA) The ESA protects listed wildlife species from harm or “take.” The term “take” is broadly defined as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct.” An activity is defined as a “take” even if it is unintentional or accidental. Project-related impacts to federally-listed, proposed, and candidate species or their habitats are considered “significant” under CEQA guidelines. USFWS (with jurisdiction over plants, wildlife, and resident fish) and NOAA Fisheries (formerly NMFS; with jurisdiction over anadromous fish and marine fish and mammals) oversee ESA. The purpose of consultation with USFWS and NOAA Fisheries is to ensure that the federal agencies’ actions do not jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat for listed species. ESA does not give plants legal protection on nonfederal lands unless a state law or regulation is being violated. ESA does prohibit malicious damage or destruction of threatened or endangered plant in any area under federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of any such species in any other area in knowing violation of any state law or regulation, or in the course of any violation of a state criminal trespass law. The Corps of Engineers has requested informal Section 7 consultation for the proposed project. Information has been supplied to USFWS and NOAA Fisheries, as appropriate and informal consultation is ongoing. Based on this information and consultations, USFWS and NOAA Fisheries will prepare Biological Opinions on the proposed project. 6.0.1.2 Clean Water Act - Section 404 Under Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers (Corps) is responsible for regulating the discharge of fill material into waters of the United States. Section 404 regulates any discharge activity below the ordinary high-water level—the water level equal to the mean annual flood level—of a stream channel. Examples of such discharge activities include placement of fill material, placement or alteration of structures that have the intended effect of functioning as fill, or any discharge activity that would affect wetlands or the surface-water conveyance or capacity of a channel. “Waters of the United States” and their lateral limits are defined in 33 CFR (Code of Federal Regulations) Part 328.3 (a) and include tidal waters, streams that are tributary to navigable waters, and their adjacent wetlands. “Wetlands” are defined for regulatory purposes, at 33 CFR 328.3 and 40 CFR 230.3, as areas “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.” Wetlands that are not adjacent to waters of the United States are termed “isolated wetlands” and are subject to Corps jurisdiction under certain circumstances. In general, a Corps permit must be obtained before placing fill in wetlands or other waters of the U.S. The type of permit depends on the amount of acreage and the purpose of the South. Bay Salt Ponds ISP EIR/EIS 6-1 Chapter 6 Biological Resources – Wildlife proposed fill and is subject to discretion from the Corps. Corps authorizations are usually granted under either a nationwide permit or an individual permit. To qualify for a nationwide permit, a project must meet certain conditions and have no more than a minimal adverse effect on the aquatic ecosystem. The Corps typically interprets this condition to mean that impacts are minor and there will be no net loss of either wetland acreage or wetland habitat value, and this process usually results in the need to provide mitigation for project-related fill of any tidal water, creek, or wetland. An individual permit is usually required where a nationwide permit is not applicable. The consideration of an individual permit includes, but is not limited to, factors such as significant acreage of wetlands or waters of the U.S., areas of high biological or unique value, or length of watercourse affected. Individual permits require review of the project by the public, an alternatives analysis that demonstrates that wetland impacts have been avoided or minimized to the extent possible, and appropriate compensatory mitigation for unavoidable impacts. Pursuant to Section 401 of the Clean Water Act, projects that apply for a Corps permit for discharge of dredged or fill material into wetlands or other waters of the U.S./State, must obtain water quality certification from the RWQCB. This certification ensures that the project will uphold State water quality standards. Alternatively, the RWQCB may elect to notify an applicant that the State may issue Waste Discharge Charge Requirements in lieu of a Section 401 certification for a project. A federal ruling issued in 2001 may affect whether wetlands are considered jurisdictional by the Corps (January 9, 2001, Solid Waste Agency of Northern Cook County [SWANCC] ruling [SWANCC v. United States Army Corps of Engineers (121 S.Ct. 675,2001)]). Guidance on non-navigable, isolated and intrastate waters was published on January 19, 2001, by counsel for USEPA and the Corps in response to the SWANCC ruling. The guidance essentially resulted in the determination that non-navigable, isolated waters may not be regulated by the Corps. For the proposed project, the Corps has agreed to the assumption all areas below the mean higher high water (MHHW) level are jurisdictional wetlands and are subject to Section 404 requirements. This assumption is highly conservative, as many of the areas designated as jurisdictional wetlands for the project do not contain vegetation. Preliminary consultation with the Corps indicates that the agency is most likely to issue a Nationwide Permit for the proposed project. Nationwide permits are general permits that cover activities such as minor dredging, construction of temporary structures (e.g., cofferdams) and fill activities. Nationwide permits have a set of general conditions that must be met for the permits to apply to a project, as well as specific conditions that apply to each nationwide permit. For the proposed project, the following conditions would need to be met as part of the Section 404 permitting process: • Procurement of Section 401 water quality certification from the San Francisco Bay RWQCB (discussed above) • Compliance with ESA, involving consultation with USFWS and NOAA Fisheries (discussed above) South. Bay Salt Ponds ISP EIR/EIS 6-2 Chapter 6 Biological Resources – Wildlife • Compliance with the requirements of Section 106 of the National Historic Preservation Act (NHPA) 6.0.1.3 Other Statutes, Codes, and Policies Affording Species Protection Migratory Bird Treaty Act—The federal Migratory Bird Treaty Act (16 U.S.C., Sec. 703, Supp. I, 1989) prohibits killing, possessing, or trading in migratory birds except in accordance with regulations prescribed by the Secretary of the Interior. This act encompasses whole birds, parts of birds, and bird nests and eggs. Bald and Golden Eagle Protection Act—The federal Bald and Golden Eagle Protection Act prohibits persons within the United States (or places subject to U.S. jurisdiction) from “possessing, selling, purchasing, offering to sell, transporting, exporting or importing any bald eagle or any golden eagle, alive or dead, or any part, nest, or egg thereof.” Executive Order 11990—Protection of Wetlands—Executive Order 11990 (issued in 1977) is an overall wetland policy for all agencies managing federal lands, sponsoring federal projects, or providing federal funds to state and local projects. It requires federal agencies to follow procedures for avoidance, mitigation, and preservation, with public input, before proposing new construction in wetlands. Compliance with Section 404 permit requirements may constitute compliance with the requirements of Executive Order 11990. 6.0.1.4 California Endangered Species Act California implemented the California Endangered Species Act (CESA) in 1984. CESA is similar to the federal ESA both in process and substance; it is intended to provide protection to threatened and endangered species in California. CESA does not supersede the federal ESA, but operates in conjunction with it. Species may be listed as threatened or endangered under both acts (in which case the provisions of both State and federal laws would apply) or under only one act. CESA prohibits the take of any plant or animal listed or proposed as threatened, endangered, or rare (applies only to plants). Habitat destruction is not included in the state’s definition of take. Section 2090 of CESA requires state agencies to comply with endangered species protection and recovery and to promote conservation of these species. CDFG administers the act and authorizes take through Section 2081 agreements, except for species designated as “fully protected”. (According to CESA, species designated as “fully protected,” such as the salt harvest mouse, cannot be impacted and are not subject to Section 2081 take agreements. 6.0.1.5 California Native Plant Protection Act (CNPPA) Regarding plant species, CESA defers to the CNPPA of 1977,which prohibits importing rare and endangered plants into California, taking rare and endangered plants, and selling rare and endangered plants. CEQA can provide protection for plants listed as rare under the CNNPA that would not otherwise be protected under CESA. 6.0.1.6 Other State Statutes, Codes, and Policies Affording Species Protection California State Wetlands Conservation Policy—The Governor of California issued an executive order on August 23, 1993, that created a California State Wetlands Conservation Policy. This policy is being implemented by an interagency task force that is jointly headed by the State Resources Agency and the California Environmental Protection Agency (Cal/EPA).
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