2.3 MASTER RESPONSE 3: NORTHERN SPOTTED OWL

Several commenters noted that the DEIR did not include the results of protocol-level surveys for northern spotted owls for the project and asked for clarification regarding the areas in and near the project for which surveys were conducted, and for information on the number and location of spotted owl activity centers in relation to project features. Commenters requested additional information about direct and indirect impacts of the project on northern spotted owl and asked for clarification on the extent of temporary versus permanent impacts on northern spotted owl roosting, nesting, and foraging habitat. Commenters also noted that the DEIR did not provide specific information about the amount, location, or proposed management of the proposed compensatory mitigation for impacts on northern spotted owl habitat and for operational impacts. A number of commenters have asked why the County did not base its analysis of the project’s impacts on the USFWS recommended two years of protocol surveys, suggesting that failure to follow the protocol is itself a significant adverse impact.

a. Northern Spotted Owl Surveys

Between March and August 2019, northern spotted owl surveys were conducted in all suitable habitat within 0.25-mile of the project area (please see Northern Spotted Owl Survey Results 2019: Humboldt Wind Energy Project, Humboldt County, California prepared by ICF, dated September 2019, and Humboldt Wind Energy Project – Northern Spotted Owl Activity Center Occurrences Discussion and Figures, prepared by Stantec Consulting Services, Inc., dated September 3, 2019, both in Appendix B of this FEIR). This survey augments the regular ongoing property-wide survey efforts conducted by the Humboldt Redwood Company (HRC), previously Pacific Lumber Company (please see “Humboldt Redwood Company Survey Quadrats,” in Appendix C of this FEIR). As summarized in the Stantec report, information about the occurrences of known activity centers were compiled using the results of the 2019 surveys, information about the activity centers managed by HRC as of 2018, and activity centers documented in the California Department of Fish and Wildlife’s (CDFW’s) Spotted Owl Observations Database (the database query included reported data between 2015–2018). In addition, CDFW's Spotted Owl Observations Database was queried for data between 1996-2017 for an analysis of historic activity centers.

The 2019 surveys resulted in 23 northern spotted owl detections, which are attributed to 12 activity centers. Ten of the 12 activity centers were pre-existing, while the remaining two are newly-identified activity centers. Five of the 12 activity centers are within 0.25 mile of the project area and the remaining seven are farther than 0.25 mile from the project area. See Figure 1 in Northern Spotted Owl Survey Results 2019: Humboldt Wind Energy Project, Humboldt County, California, prepared by ICF, dated September 2019 in Appendix B of this FEIR for the locations of all survey points and northern spotted owl detections relative to the refined project footprint.

b. Impacts on Northern Spotted Owl Habitat

The project has been refined since publication of the DEIR to further reduce impacts on northern spotted owl and other sensitive biological resources. Please see Master Response 1, “Site Planning and Avoidance Measures,” and “Refinements to the Project Description since Circulation of the DEIR,” in Chapter 1 of this FEIR, and Humboldt Wind Energy Project – Northern Spotted Owl Activity Center Occurrences Discussion and Figures, in Appendix B of the FEIR. Among other refinements to the project, the gen-tie

Humboldt Wind Energy Project FEIR AECOM Humboldt County 2.3-1 Master Response 3: Northern Spotted Owl line has been realigned and shortened (from 25 miles to 22 miles) and co-located with existing roads wherever possible to avoid all northern spotted owl activity centers and to maintain a 1,000-foot buffer around all activity centers. The one exception is the Goat Rock activity center. At this activity center, no work would occur during the northern spotted owl breeding season (March 1–August 31) within the 1,000-foot buffer; the closest work outside of the breeding season would occur approximately 800 feet from this activity center.

Please see Humboldt Wind Energy Project – Northern Spotted Owl Activity Center Occurrences Discussion and Figures, prepared by Stantec Consulting Services Inc., dated September 30, 2019 in Appendix B of this FEIR for a detailed analysis of temporary and permanent impacts on habitats within all northern spotted owl territories (activity centers plus a 1.3-mile buffer) within the project area. As described in the Stantec report, impacts on northern spotted owl habitat within all northern spotted owl territories would be minimal and the proposed work would have no impact on the land owner’s ability to maintain habitat retention thresholds in accordance with state and federal regulations, and with the HRC’s Habitat Conservation Plan (HCP) requirements. To achieve the federal, state, and HRC HCP requirements for take avoidance for each northern spotted owl activity center, the County will require that a minimum of 500 acres and 1,336 acres of functional northern spotted owl habitat must be retained within a 0.7- and 1.3-mile radius, respectively. Furthermore, all nesting habitat within 500 feet must be retained and no disturbance may occur within 1,000 feet during the breeding season.

Project refinements since circulation of the DEIR have resulted in a 26% reduction in the total acreage of northern spotted owl habitat that would be affected by the project. Please see revised Figure 3.5-9: Northern Spotted Owl Habitat Types and Proposed Project Components, and FEIR Figure C-2. Comparison of Original (DEIR) and Refined (FEIR) Project Disturbance Limits in Relation to Northern Spotted Owl Activity Centers in Appendix C of this FEIR for depictions of how the project disturbance limits have been revised from those presented in the DEIR to minimize impacts on northern spotted owl. See also revised Table 3.5-11: Temporary and Permanent Impacts of the Proposed Project on Northern Spotted Owl Habitat, in Section 3.5, “Biological Resources,” in Chapter 9 of this FEIR.

Figures 1, 2, and 3 from the Humboldt Wind Energy Project – Northern Spotted Owl Activity Center Occurrences Discussion and Figures, in Appendix B of this FEIR, summarize the datasets reviewed and analyzed. Figure 1 and the associated analysis include a review of all available northern spotted owl activity center data from recent years, including 2018 HRC northern spotted owl data, Stantec 2019 northern spotted owl survey data, and data from the CDFW Spotted Owl Observations Database (filtered for the last four years, 2015-2018). Figure 1 provides the following overview and detailed exhibits of the Northern Spotted Owl Activity Center Buffer Avoidance Overview Map, Current Northern Spotted Owl Activity Center Buffer Avoidance Map, and Northern Spotted Owl Activity Center Habitat Retention Thresholds Overview Map. For Figure 1 and the associated analysis, where multiple activity centers occur at the same location, the most recent data were depicted. Figure 2: Historic Northern Spotted Owl Activity Centers and the associated analysis consisted of a review of historic northern spotted owl activity center data, including Stantec’s 2019 survey data, HRC current and previous year (Level 1 sites)1, all historic HRC activity center data (pre-2014), and historic CDFW Spotted Owl Database dataset (1996-2017).

1 According to the HCP, Level 1 activity sites supported NSOs in the previous year and must also be active for the year in which the site is selected.

AECOM Humboldt Wind Energy Project FEIR Master Response 3: Northern Spotted Owl 2.3-2 Humboldt County Figure 3: 2018 Northern Spotted Owl Survey Areas depicts HRC northern spotted owl survey quadrats that fall within 0.7 mile of the project, and the last year each of these quadrats were surveyed, as well as 2018 survey areas completed by a private landowner off HRC property.

c. Permanent and Temporary Impacts and Mitigation

A more detailed discussion of temporary and permanent construction impacts on northern spotted owl habitat is provided below and a version that shows the changes to the DEIR version is provided in Section 3.5 of Chapter 9, “Revisions to the DEIR.” Permanent impacts are defined as habitat lost as a result of the construction of permanent project-related structures (roads and turbine pads). Vegetation clearing under the gen-tie line is also considered a permanent impact on northern spotted owl habitat because this area will be maintained as shrub habitat and will not be allowed to return to forest conditions during the 30- year life of the project.

Temporary impacts on northern spotted owl habitat include temporarily disturbed areas adjacent to road construction and pull sites. These areas will be replanted and restored to forested conditions upon completion of construction as described in the Revegetation, Reclamation, and Weed Control Plan (Appendix B of this FEIR). Additional discussion is also provided below regarding the impacts of fragmentation from the gen-tie corridor. Table 3.5-11 below provides information on affected acreage by habitat and disturbance type.

Table 3.5-11. Temporary, Permanent, and Fragmentation Impacts of the Proposed Project on Northern Spotted Owl Habitat Habitat Type Disturbance Type Acres Affected Temporary (road edges) 125.95 Foraging Permanent (turbine pads, new roads, gen-tie) 164.01 Fragmentation Edge effect (gen-tie 100’ buffer) 292.13 Temporary (road edges) 38.04 Roosting Permanent (turbine pads, new roads, gen-tie) 49 Fragmentation Edge effect (gen-tie 100’ buffer) 107.34 Temporary (road edges) 10.22 Nesting Permanent (turbine pads, new roads, gen-tie) 17.39 Fragmentation Edge effect (gen-tie 100’ buffer) 37.61 Total 841.69

DEIR Table 3.5-11 has been refined to show the acreages of northern spotted owl nesting, roosting, and foraging habitat subject to temporary and permanent impacts, and to also summarize the acreages of habitat affected by fragmentation. Fragmentation impacts are assumed to extend 100 feet from the border of the gen-tie corridor into the adjacent forest, a distance approximately equal to the average tree height of north coast coniferous forest. Based on the 100-foot fragmentation buffer, 107.34 acres of roosting habitat and 37.61 acres of nesting habitat would be subject to fragmentation effects. Microclimate changes, secondary tree mortality, and increased predation risk from fragmentation affect northern spotted owl roosting and nesting habitat, while foraging habitat would not be expected to change substantially, as prey density in the adjacent forest would not be expected to be substantially affected by the presence of the gen-tie corridor.

Mitigation for permanent and temporary impacts on northern spotted owl habitat will be accomplished by the acquisition and conservation of functional northern spotted owl habitat as described in the refinements

Humboldt Wind Energy Project FEIR AECOM Humboldt County 2.3-3 Master Response 3: Northern Spotted Owl to Mitigation Measure 3.5-7 (Avoid, Minimize, and Compensate for Construction Impacts on Northern Spotted Owl), as stated below. For a version of this measure that shows the changes that were made since the circulation of the DEIR, see Section 3.5, “ in Chapter 9 of this FEIR.

Table 3.5-11a: Mitigation Ratios and Acreages Required for Permanent Impacts on Northern Spotted Owl Habitat, specifies a 1:1 mitigation ratio for permanent impacts on foraging, nesting, and roosting habitat because the proposed mitigation lands will provide higher quality habitat than the habitat affected by the project, and because only potential habitat, not occupied northern spotted owl habitat, would be affected. Based on the refined analysis, the 3:1 mitigation ratio previously discussed in the DEIR is no longer appropriate. The 3:1 ratio was based on the conservative assumption that the proposed project could affect occupied northern spotted owl territories and that federal and state take permits would likely be required, which would require up to a 3:1 mitigation ratio to offset impacts. Because project-specific northern spotted owl surveys had not been conducted prior to the circulation of the DEIR, the approach taken was overly conservative.

Table 3.5-11a requires mitigation at a 0.25:1 ratio for fragmentation effects on nesting and roosting habitat rather than 1:1 because forests bordering the gen-tie will still provide appropriate canopy cover and trees of an appropriate diameter to support nesting and roosting. However, the functional value of the habitat for nesting and roosting will be somewhat diminished by exposure to microclimate changes and predation risk resulting from the clearing of the adjacent forest to create the gen-tie corridor. For loss of foraging habitat in the gen-tie corridor the mitigation ratio is 0.5:1 rather than 1:1, because this area will be maintained as early seral stage shrub habitat and will still provide foraging opportunities for northern spotted owls. As discussed in the Gen-Tie Corridor Vegetation Management Activities and Northern Spotted Owl memo prepared by Stantec Consulting Services, Inc., dated October 17, 2019, this area will continue to provide a source of prey species such as woodrats and other small mammals like brush rabbits and deer mice. The mitigation aims to offset the temporal loss of forest foraging habitat rather than the total loss of foraging habitat.

As discussed in Mitigation Measure 3.5-7, the mitigation ratios described in Table 3.5-11a may be adjusted depending on whether the mitigation lands proposed for acquisition or conservation easements are vulnerable or protected and also whether a barred owl management program is implemented on the mitigation lands that are acquired or for which a conservation easement is secured. The County, in consultation with USFWS and CDFW, would make the determination as to whether the ratios in Table 3.5-11a could be adjusted based on the vulnerable or protected status of the proposed mitigation lands and whether a barred owl management program will be implemented. If a federal or state take permit is ultimately required for the project, the mitigation required as a condition of those permits would take precedence over the mitigation stated in this FEIR.

The revisions to Mitigation Measure 3.5-7 provide clarifications and additional detail regarding the analysis of impacts on northern spotted owl habitat and mitigation for those impacts, as requested by several commenters. However, these refinements to the impact and mitigation discussions do not result in any changes to the impact conclusions presented in the DEIR. The discussions further refine the information provided, based on additional details that have emerged since circulation of the DEIR, but they are not considered significant new information requiring recirculation under Section 15088.5 of the CEQA Guidelines.

AECOM Humboldt Wind Energy Project FEIR Master Response 3: Northern Spotted Owl 2.3-4 Humboldt County The project applicant is proposing to establish a conservation easement on forested habitat located in Humboldt County as described in the Potential Sites for Off-Site Mitigation of Loss of Northern Spotted Owl Habitat memorandum prepared by Stantec Consulting Services, Inc., dated October 17, 2019, in Appendix B of this FEIR. Six potential mitigation sites have been identified that are feasible to acquire. Based on the assessment presented in the memorandum, all six sites provide higher-quality habitat for northern spotted owl than the areas that will be affected by project construction. Sensitive natural communities are also present within these potential mitigation sites, and the parcels have the potential to provide mitigation for project impacts on sensitive natural communities.

d. Barred Owl Management

Several commenters noted that removal of barred owl (Strix varia), would be a potentially effective tool to aid in the recovery of the northern spotted owl and suggested this approach as mitigation for project impacts on northern spotted owl. This species historically occurred only east of the great plains in North America, is closely related to the northern spotted owl (Strix occidentalis), but is slightly larger, more aggressive, highly territorial and, unlike the spotted owl, it is a prey generalist, allowing it to be more successful than the spotted owl when occupying the same habitats. Furthermore, the two species are known to interbreed. Since the invasion of the Pacific states by barred owls began 20–40 years ago, the invasive species has exerted an overwhelmingly negative influence on spotted owls, thereby threatening spotted owl population viability (Long & Wolfe 2019). Researchers have concluded that securing habitat alone will not recover the endangered spotted owl (USFWS 2011). Results from experimental studies involving removal of barred owls, including two study sites in NW California, indicate improved apparent survival and stabilization of spotted owl populations on the removal areas compared to continuing declines of spotted owls where no barred owls are removed (Diller et al 2016; USFWS 2019).

Mitigation Measure 3.5-7 was refined to give the applicant the option of including a barred owl management plan in addition to acquisition or conservation easements of northern spotted owl migration lands. Implementation of a barred owl management program would substantially enhance the value of mitigation lands and therefore the mitigation ratios specified in Table 3-11a of Mitigation Measure 3.5-7 could be reduced while still providing sufficient benefits to offset project impacts. The County, in consultation with CDFW and USFWS, would assess the value of proposed barred owl management for enhancing northern spotted owl mitigation and would reduce the mitigation ratio accordingly, but the ratio could not be reduced to less than 0.5:1.

e. Adequacy Survey Effort for Northern Spotted Owl.

The data on which the County based its assessment of the project’s impacts on northern spotted owls included 17 years of surveys conducted by the HRC in accordance with their HCP, two years of surveys conducted by nearby timber operators, a habitat assessment of the project footprint conducted in 2018 (which used existing HRC northern spotted owl habitat data provided for the majority of the survey area as a baseline desktop resource prior to the surveys), and one year of protocol-level northern spotted owl occupancy survey data collected in 2019. 2019 occupancy surveys were coordinated with HRC and other landowners, and the only new, previously unidentified activity centers were documented off HRC property.

Humboldt Wind Energy Project FEIR AECOM Humboldt County 2.3-5 Master Response 3: Northern Spotted Owl This survey data was sufficient for the County to be able to address the impact questions required for an adequate CEQA analysis, namely whether the project, as mitigated, would “have a substantial adverse effect, either directly, or through habitat modifications, on [the] species” (CEQA Guidelines, Appendix G, Environmental Checklist, Section IV[a]). In determining the significance of the impact, CEQA Guidelines section 15065 further directs the lead agency to analyze whether the project would “substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, or substantially reduce the number or restrict the range of an endangered, rare, or threatened species.” Thus, the focus of CEQA’s impact analysis is on the species, not individuals of the species. Furthermore, for the impact to be “significant,” it must be “substantial.”

In contrast, the purpose of an EIR is not to determine whether a project will result in the unauthorized “take” of an individual member of a protected species. (Association of Irritated Residents v. County of Madera (2003) 107 Cal. App. 4th 1383 [“CEQA neither requires a lead agency to reach a legal conclusion regarding "take" of an endangered species nor compels an agency to demand an applicant to obtain an incidental take permit from another agency. The finding that the [project] would not significantly impact biological resources did not limit the federal government's jurisdiction under the Endangered Species Act or impair its ability to enforce the provisions of this statute”].) Nor does CEQA require any specific protocols or methods for gathering data about habitat or species on which to make determinations of “substantial adverse effect” (adequate EIR did not require protocol-level kit fox surveys.) Ibid.

In contrast to the goal of CEQA’s focus on substantial impact to the species, the focus of protocol surveys developed to implement the Endangered Species Acts is to help determine whether a project will result in the “take” of a species and for the purpose of “minimizing the potential for unauthorized incidental take.” (USFWS, NSO Protocol 2012: 4) Protocol surveys are intended to determine the presence and likely locations of specific animals in relation to proposed activities to be able to avoid “take.” The 2012 northern spotted owl protocol recognizes its limited purpose: “While the protocol utilizes the best available information for conducting project-level surveys, the protocol is not designed to monitor yearly trends of spotted owl or for many other research applications.” Ibid.

Here, the northern spotted owl surveys done to support the EIR are adequate for CEQA purposes because they (1) establish that northern spotted owls are present in the project area, (2) calculate the acreage and character of temporary and permanent northern spotted owl habitat modification caused by the project, (3) establish impact avoidance measures such as buffers and noise limits near areas where northern spotted owls are active, and (4) establish compensatory mitigation for the permanent loss of northern spotted owl habitat, regardless of association with activity centers or demonstrated use by northern spotted owls. The surveys are also adequate to show that the project is not anticipated to directly impact individual owls through collision; that the project components will avoid and provide adequate buffers from all known northern spotted owl “activity centers” within 0.7 mile of the project infrastructure (this includes all activity centers documented during 2019 occupancy surveys, all activity centers documented by HRC in the last 17 years [utilizing the most recent location of that activity center], and all activity centers included in CDFW’s spotted owl database documented between 2015-2018), meaning that the conclusion of the avoidance of activity centers is based on much more than one year of surveys; that auditory buffers will be enforced to reduce construction noise impacts to northern spotted owls; and that the amount of project-

AECOM Humboldt Wind Energy Project FEIR Master Response 3: Northern Spotted Owl 2.3-6 Humboldt County related temporary and permanent habitat modification constitutes removal of an extremely small percentage of available habitat associated with known activity centers (according to the California Forest Practice Rules habitat retention thresholds) and will not create a substantial reduction of northern spotted owls or reduction in range for northern spotted owls. In addition, the EIR proposes mitigation measures for the temporary and permanent loss of northern spotted owl habitat. In summary, the data from the surveys and the location of the project components in relation to known owl activity centers provide sufficient evidence to support the conclusion that the project will not “substantially reduce the habitat” for northern spotted owls, not cause the northern spotted owl population “to drop below self-sustaining levels,” will not “threaten to eliminate” the northern spotted owl as an animal community, and will not “substantially reduce the number or restrict the range of the northern spotted owl.”

Commenters have pointed out differences between the northern spotted owl surveys conducted for the EIR and the 2012 protocols, but have not established how the information and analysis in the EIR is inadequate to address the questions relevant to CEQA about impacts to the species, which as noted above, ask whether the project would “substantially reduce the habitat” for northern spotted owls, cause the northern spotted owl population “to drop below self-sustaining levels,” “threaten to eliminate” the northern spotted owl as an animal community, or “substantially reduce the number or restrict the range of the northern spotted owl.” Nor have commenters indicated how the additional protocol surveys they recommend would change the EIR’s proposed avoidance, minimization, and compensation measures for the northern spotted owl. CEQA does not require a lead agency to conduct every test or perform all research, study, and experimentation recommended or demanded by commenters (CEQA Guidelines Section 15204); “an EIR need not contain all information available on a subject”’ if it requires “sufficient information and analysis to enable the public to discern the analytic route the agency traveled from evidence to action (Association of Irritated Residents, 107 Cal. App. 4th 1383). Nor does the County’s decision to rely on the survey effort in the EIR as opposed to different or additional survey results does itself result in a significant adverse impact to the species.

Humboldt Wind Energy Project FEIR AECOM Humboldt County 2.3-7 Master Response 3: Northern Spotted Owl

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AECOM Humboldt Wind Energy Project FEIR Master Response 3: Northern Spotted Owl 2.3-8 Humboldt County