In Reply Refer to: FWS-ERIV-18B0223-19F0998

August 28, 2019 Sent by Email Memorandum

To: Field Manager, Palm Springs-South Coast Field Office, Bureau of Land Management, Palm Springs, California

From: Acting Field Supervisor, Carlsbad Fish and Wildlife Office Carlsbad, California

Subject: Section 7 Biological Opinion on the IP Athos Renewable Energy Project, Riverside County, California

This memorandum transmits the U.S. Fish and Wildlife Service’s (Service) biological opinion regarding the construction, operation, maintenance, and decommissioning of the proposed IP Athos Renewable Energy Project (Project) in Riverside County, California, and its effects on the federally threatened Mojave population segment of desert tortoise (Gopherus agassizii) and its designated critical habitat in accordance with section 7 of the Endangered Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq.). Your request for formal consultation dated February 21, 2019, was received on February 27, 2019. Additional information and revisions to the biological assessment were received on May 3, 2019. Intersect Power is the non-Federal applicant for a Bureau of Land Management (BLM) right-of-way (ROW) authorization for the Project.

Your agency has determined the Project may affect, but is not likely to adversely affect Yuma Ridgeway’s (=clapper) rail [Rallus obsoletus (=longirostris) levipes; Ridgway’s rail], southwestern willow flycatcher (Empidonax traillii extimus), least Bell’s vireo (Vireo bellii pusillus), and the western distinct population segment (western DPS) of the yellow-billed cuckoo (Coccyzus americanus).

We do not anticipate adverse impacts to these avian species’ breeding activities with implementation of the Project since individuals will be migrating through the action area between their wintering and breeding areas. These species do not breed or winter within the Project area because suitable breeding habitat is not present. Therefore, adverse effects would result from collision with Project features such as solar panels, power lines, and fences. Based on the limited number of mortalities found at other utility-scale solar facilities in the Mojave Desert, collision effects at a single project would be sporadic, unlikely to occur or would be considered a 2 discountable effect. The information we have available to date indicates that individuals of listed birds have indeed died as a result of interactions with solar facilities. However, when we attempted to evaluate the risk of collision at specific renewable energy projects, we determined the risk to individual birds was unquantifiably low and therefore discountable when considered at a project level. However, the documented patterns of mortality to Yuma Ridgway’s rail and willow flycatcher (subspecies undetermined) from energy infrastructure in the California desert (Service 2013-2015, unpubl. data), recent data on migration and dispersal patterns of Yuma Ridgway’s rail documenting migratory stopovers in non-marsh arid habitats (Harrity and Conway 2018), and the additive risk of multiple hazards posed by energy-related infrastructure development on a California Desert Conservation Area (CDCA) Plan level, are not discountable and should be addressed at a programmatic scale in a way that provides consistency across different projects. As a result, the Service and BLM committed to work together to develop options that provide better project-by-project consistency in monitoring bird mortalities, including incidental take of listed birds, and can be applied under the CDCA Plan and the Act (Service 2017a).

Until a programmatic approach is developed, we will continue to evaluate this risk on a case-by- case basis and to provide site-specific recommendations to avoid adverse effects to avian species. Based on the information that is available to us at this time, we concur with your determination that the Project is not likely to adversely affect Yuma Ridgway’s rail, least Bell’s vireo, southwestern willow flycatcher, or the yellow-billed cuckoo. Designated critical habitat for these species does not occur in the Project area; therefore, no effects to designated critical habitat are anticipated.

This biological opinion is based on information provided in the following documents and communications: (1) the Final Environmental Impact Report for the IP Athos LLC’s Athos Renewable Energy Project (Riverside County 2019a, hereinafter final EIR); (2) the Draft Environmental Impact Report for the IP Athos LLC’s Athos Renewable Energy Project (Riverside County 2019b, hereinafter draft EIR); (3) the Biological Assessment for the IP Athos Renewable Energy Project (BLM 2019, hereinafter BA); (4) the Biological Resources Technical Report, IP Athos Renewable Energy Project, Riverside County, California (Ironwood 2019, hereinafter BRTR); (5) written, telephone, and electronic mail correspondence received during the consultation time period; and (6) pertinent literature contained in our files. The project file for this consultation is located at the Carlsbad Fish and Wildlife Office.

CONSULTATION HISTORY

Between June 2018 and August 2019, staff from the Palm Springs Fish and Wildlife Office (PSFWO) worked with the BLM, Intersect Power (IP), and staff from the California Department of Fish and Wildlife (CDFW) to clarify the Project Description, Project build-out scenarios, effects to desert tortoise, effects to listed birds, and avoidance and minimization measures. Efforts to clarify these issues included conducting site visits and meetings, assessing baseline conditions, and providing comments on the draft BA. 3

BIOLOGICAL OPINION

DESCRIPTION OF THE PROPOSED ACTION

The information below provides a summary of the proposed action. Refer to the BA and final EIR for a more detailed description of Project activities.

The proposed action is the BLM’s issuance of a ROW grant that will authorize Intercept Power (Applicant) to construct, operate, maintain, and decommission a 500 megawatt (MW) solar photovoltaic (PV) facility and construct 11 miles of a 220-kilovolt (kV) electrical transmission line (generation interconnection or gen-tie) that would occupy a land area of approximately 3,440 acres, including 194.8 acres on BLM land and 3,265 acres (minus 23-acre avoidance area) on private land across seven groups of non-contiguous parcels in the Desert Center area of Riverside County (Figure 1; BLM 2019, Riverside County 2019a). According to the BA and final EIR, the Project includes a 23-acre avoidance area to minimize impacts to desert dry wash woodland habitat on private land (eastern portion of parcel group F on Figure 1). The Project would include up to 500 MW of integrated energy storage capacity. The overhead and potential underground portions of the 220 kV gen-tie transmission line would convey power by interconnecting to the Southern California Edison (SCE) Red Bluff Substation, an existing substation located south of Interstate 10 (I-10) and approximately 1.1 miles south of the Project area on land administered by the BLM. The portion of the 220 kV gen-tie transmission line outside of the solar facility would be located on 7 miles of Federal lands managed by the BLM Palm Springs-South Coast Field Office. The remainder of the gen-tie lines would traverse approximately 4 miles of privately owned land, primarily on the solar facility sites. Designated critical habitat occurs in the southern extent of the Project adjacent to the gen-tie transmission line on BLM land within the Chuckwalla Critical Habitat Unit (CHU) in the Colorado Desert Recovery Unit for desert tortoise.

The entire Project is located on both private lands and BLM-administered public lands. The portions of the Project proposed for PV and storage components consist of seven non-contiguous groups of privately-owned parcels identified as parcel groups A-G. The gen-tie routes are identified as four segments (gen-tie segments 1, 2, 3, and 4) with one alternative (gen-tie segment 1A) and are located on a combination of privately owned and BLM managed lands (Figure 1). Additional access areas are also on a combination of private and public lands. The following Project terminology is used to differentiate between these components:

● Athos Project: The whole of the Project, including public and private land components, identified as the Athos Renewable Energy Project in the final EIR and BA; and

● BLM component: The portions of the proposed gen-tie routes that would be located on BLM lands, identified as the BLM Proposed Action in the final EIR and BA.

The Project is located on lands managed by BLM pursuant to the California Desert Conservation Area (CDCA) Plan (BLM 1980, as amended; BLM 1999) and the Northern and Eastern Colorado Desert Coordinated Management Plan (NECO), an amendment to the CDCA Plan. The Western Solar Plan (BLM 2012) and the; 4

Figure 1. Athos Solar Project (from draft EIR [Riverside County 2019b]). 5

Desert Renewable Energy Conservation Plan [DRECP] (BLM 2016) amended the CDCA Plan to allow for development of solar energy generation on public lands in specific areas which include the Project area. The Project is located within a Development Focus Area (DFA) identified in the DRECP. As part of a DFA, the site of the Project is designated as suitable for energy accessory uses and the proposed use would be compatible with the CDCA Plan. The BLM component of the Project is subject to management direction and Conservation Management Actions (CMAs) specified in the DRECP Land Use Plan Amendment (LUPA) as applicable within DFAs. The private land components of the Project are not administered by BLM and thus not subject to the DRECP.

The biological opinion for the DRECP states that BLM’s role for a covered project in a DFA is to request Service concurrence that the project is consistent with the DRECP. The BLM component of the Project (i.e., the public lands segments of the gen-tie ROW) could be authorized through written concurrence alone, without additional section 7 consultation. However, the private land component of the Project are not subject to the DRECP and therefore the DRECP biological opinion is not applicable. Due to the indirect effects of the BLM component on private lands, section 7 consultation is necessary to authorize take on those components (BLM 2018). Therefore, the BLM action under consideration in this biological opinion is the entire IP Athos Project.

The Project is located in Riverside County north of I-10 and approximately 4 miles east and northeast of the town of Desert Center within Chuckwalla Valley. Private lands within the Project area include fallow agricultural land, recovering creosote bush scrub or recovering salt bush scrub, natural vegetation communities (creosote bush scrub and desert dry wash woodland), and one distinct natural habitat type (desert pavement). Surrounding features include the Eagle Mountains to the west, Coxcomb Mountains to the north, and Chuckwalla Mountains to the south. The Project is bisected by California Highway 177 and I-10 exists near the southern boundary of the Project. The existing Desert Sunlight and approved Desert Harvest solar projects are northwest of the Project’s northernmost parcels, the approved Palen Solar Project is located adjacent to the easternmost parcels of the Project, the proposed Arica and Victory Pass 1 Solar Projects are located directly to the east of the Project, and there are several other solar projects and associated gen-ties proposed on private and BLM-administered lands in the area. Existing linear infrastructure, including transmission lines, communications lines, and access roads occur sparsely throughout the Project site. The Lake Tamarisk Community is located to the west, and rural residential areas occur to the east of the Project site. The Chuckwalla Valley Raceway is located near the center of the Project parcel groups.

The Project is expected to be constructed over a 30-month period with various construction activities occurring simultaneously. The Project will occur over several phases, including pre- construction, construction, operations and maintenance (O&M), and decommissioning. Construction would begin with pre-construction surveys, construction of the main access road, security fencing around the solar facility site, biological resource exclusion fencing (where desert tortoise are found to be present), clearing and construction of a laydown yard, site grading and preparation, and construction of the O&M building, parking area, and pad mounts for transformers. Construction would continue with the installation of temporary power, construction

6 of on‐site roads, construction of the Project substation, and assembly and installation of solar panel blocks and wiring. Gen-tie construction would occur over a 6-month period and may be phased based on the anticipated 30-month construction of the solar facility. Gen-tie work would begin with geotechnical borings at structure locations on BLM-administered land (2 field days) and approximately 2 months of testing and final design, followed by 3 months of construction activities. Once the gen-tie line is installed, restoration of temporary disturbance areas pursuant to an approved Vegetation Resources Management Plan would take approximately 1 month. During Project construction, the workforce is expected to average approximately 320 employees over the 30-month construction period, with a peak workforce of approximately 530 employees. An estimated 40 roundtrips per day would be required to deliver materials and equipment to the Project site.

Pre-construction

Pre-construction activities will include identification and marking of site boundaries, fence locations, and gen-tie ROW boundaries; installation of security fencing; installation of desert tortoise exclusionary fencing and conducting pre-construction clearance surveys for desert tortoise and other sensitive species; clearing and grading of access roads, construction laydown, staging, and parking areas; and setting up offices and site services. No mass grading will be required; however, much of the solar facility will be impacted by compaction, micro‐grading, or disc‐and‐roll grading. A Stormwater Pollution Prevention Plan (SWPPP) or SWPPP equivalent will be prepared, approved, and implemented before and during construction. Desert tortoise exclusionary fencing (in place during construction only) and pre-construction clearance surveys will meet the standards established by the Service in the Desert Tortoise Field Manual (Service 2009) or most recent guidance. Pre-construction activities will also include relocation of any desert tortoises discovered in the Project boundary using procedures that will be outlined in an approved Desert Tortoise Translocation Plan (Translocation Plan). Details concerning the translocation of tortoises from the Project site will be provided in the Translocation Plan.

Construction

The solar facility (i.e., all facilities inside of the perimeter fence) would consist of construction of multiple blocks of solar PV panels mounted on fixed tilt or tracking systems and associated equipment, up to four Project substations (fenced), a switchyard, an energy storage system, an O&M building, a Supervisory Control and Data Acquisition (SCADA) system and telecommunications facilities, and lighting. A permanent perimeter fence (a wildlife-friendly design described below) and desert tortoise exclusion fencing (in place during construction only) will be constructed around the solar facility. Other onsite features include construction of approximately 15 meteorological stations, and infrared security cameras, motion detectors, and/or other similar technology.

The output voltage of the solar panel inverters would be stepped up to the collection system voltage via transformers. The 34.5 kV level collection cables would either be buried underground or installed overhead on wood poles. If the collection system is installed overhead, some of the wood poles could be located at the outside edge of the property line, but a majority

7 of these poles are expected to be located interior to the site. Approximately 300 to 500 wood poles located at 250-foot intervals could be installed across the entire site. The typical height of the poles would be approximately 30 to 50 feet, with diameters varying from 12 to 14 inches. If underground construction of the collector lines occurs outside of the solar facility site in order to reduce the potential for conflicts with existing and approved projects, the lines would be buried within access roads to minimize disturbance. The total extent of cable trenching would not exceed 24 feet in width and would occur entirely within the access road.

Infrastructure inside and outside of the solar facility perimeter fence include the construction of 11 miles of 220 kV gen-tie lines (four segments and one alternative segment), access roads, spur roads, pull sites, temporary guard structures, and temporary laydown areas. Interconnection to the statewide power grid will be via the SCE operated transmission system at the Red Bluff Substation. Approximately 3.4 miles of gen-tie lines will be located within the solar facility sites on private land. Outside of the solar facility boundaries, approximately 7 miles of gen-tie line would be placed within a 100-foot-wide ROW on BLM-administered land (96 acres) and 0.75 mile of gen-tie line would be located on private land (15 acres). A total of up to 120 gen-tie structures would be built. Gen-tie structures will be on average 90 feet tall (ranging from 50 to 120 feet) and consist of either monopoles, lattice steel structures, or wooden H-frame poles or underground for a short segment to cross existing ROWs.

There are two optional gen-tie locations: 1) along gen-tie segment 3; and 2) an alternative gen-tie segment 1. Gen-tie segment 3 may be co-located with the approved Palen Solar Project gen-tie line. However, coordination with Palen Solar Project ownership has not been finalized; therefore, this analysis assumes two separate gen-tie lines along segment 3. The two separate lines would consist of the Project’s gen-tie segment 3 which would be adjacent to the Palen Solar Project gen-tie line with one shared access route. The alternative gen-tie segment 1 route is south of parcel A (Gen-Tie 1Alt. on Figure 1). The alternative gen-tie segment 1 would be approximately 1.15 miles long and gen-tie segment 1 would be approximately 0.5 miles long (alternative gen-tie segment 1 would be 0.65 miles longer than gen-tie segment 1).

Gen-tie segments 3 and 4 include an option for the construction of underground 220 kV lines. Should gen-tie segment 3 be constructed underground, there would be no Project substation on parcel group G. Instead, 34.5 kV electrical collector lines would exit parcel group G to the west in the Project access road adjacent to the proposed overhead ROW for gen-tie segment 3. The line would be buried for approximately 4 miles to connect to a Project substation on parcel group F. The underground connector line would be within the existing roadway and habitat impacts would be minimal. For gen-tie segment 4, up to 500 feet of underground 220 kV line may be constructed from the Project substation on parcel group F to cross under the existing Desert Sunlight and Desert Harvest ROWs on BLM-administered land before transitioning overhead and continuing south into the Red Bluff Substation. This underground line would be constructed in previously undisturbed habitat and impacts would be limited to a linear construction corridor along the route. The analysis in this biological opinion includes both the aboveground and underground gen-tie construction options.

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The Project’s roadway system will include perimeter roads, access roads, and internal roads. Access to the majority of the Project will be via California Highway 177. Corn Springs Road will be used to access the easternmost group of parcels. Seven new access road segments, totaling approximately 10 miles in length, will be constructed for primary and secondary access to the seven groups of Project sites (groups A-G). In some cases, access will be via improved existing BLM open routes and agricultural roads, rather than requiring new route construction. All new and improved access roads will be 24 feet wide with a 2-foot-wide shoulder on each side, for a total width of approximately 30 feet. Construction of the access road segments will include compacting subsurface soils and placing a 4-inch-thick layer of asphalt concrete over a 6-inch-thick layer of compacted aggregate base. Approximately 86 acres of access and spur roads will be constructed or upgraded on BLM-administered land.

Most of the site has nearly level to gently sloping topography, therefore no mass grading will be required; however, much of the solar facility would be impacted from compaction, micro‐ grading, or disc‐and‐roll grading. Some of the parcels where facilities and arrays will be located will require light grubbing for leveling and trenching. All vegetation that may interfere with equipment will be trimmed and/or removed using manual non-mechanical means described in the Vegetation Resources Management Plan or treated with an approved herbicide, as necessary.

Spread of noxious weeds and other nonnative invasive plant species onto the Project sites could create a fire hazard and impact ecological systems. Weed control activities will be implemented within the Project according to an approved Integrated Weed Management Plan. Weed control activities would include both mechanical and herbicide control methods. Mechanical control activities include chaining, disking, grubbing, and mowing using tractors or other heavy equipment, as necessary. On BLM-administered land (gen-tie component only), herbicide control could involve the use of BLM-approved herbicides to control weeds if manual control methods are not successful. Any potential herbicide use on BLM lands will be subject to separate BLM review and approval.

To minimize interference with tortoise movement and activity, low-impact vegetation management during construction and O&M will be implemented wherever feasible in all solar facilities. The low-impact design will necessitate mowing or cutting vegetation within the solar fields close to ground level; however, mowing will be conducted such that minimal disturbance to the soil surface and below-ground native plant rootstocks would occur. Where necessary to smooth out the ground surface for construction safety, mowing will be accompanied by rolling. Grubbing, grading, and compacting of soils will occur along the major access roads and at substation and O&M building locations, but a majority of the solar facility site would not require this soil treatment. To the extent commercially feasible, in the portions of the solar facility site that currently support native desert vegetation, trenching for low- and medium-voltage cabling will be avoided in favor of aboveground cable installation on the racking system and medium voltage poles. The avoidance of cable trenching in these areas would not require additional overhead pole installation.

Water for construction-related dust control and operations will be obtained from an on-site or off-site groundwater well, or trucked from an off-site water purveyor. During the construction

9 phase, it is anticipated that up to 500 acre-feet would be used for dust suppression (including truck wheel washing) and other purposes during the 30-month construction timeframe.

Operations and Maintenance

Following completion of Project construction, O&M of the solar facilities and associated gen-tie line will commence and is anticipated to continue for the 40-year life of the Project. Project O&M activities will generally include panel repairs; panel washing; maintenance of transformers, inverters, energy storage system, and other electrical equipment; responding to automated electronic alerts based on monitored data; road and fence repairs; and weed management. On-site vegetation will be managed to ensure access to all areas of the site and to screen facilities. Solar modules would be washed up to four times each year using light utility vehicles with tow-behind water trailers resulting in the use of approximately 15 to 40 acre-feet annually. No chemical cleaners would be used for module washing and no wastewater would be generated during panel washing as water would be absorbed into the surrounding soil or would evaporate. No heavy equipment will be used during normal operation. Routine O&M vehicles will be pickup trucks, flatbed trucks, and water trucks for solar panel washing. Forklifts or loaders may be used for occasional unscheduled maintenance. Large heavy-haul transport equipment may be brought to the Project infrequently for equipment repair or replacement. Standard defensible space requirements will be maintained surrounding any welding or digging operations. A Fire Management and Prevention Plan will be prepared and implemented in coordination with the Riverside County Fire Department, BLM Fire, or other emergency response organizations.

Following the completion of construction, temporarily disturbed areas on the Project site will be revegetated for the operations phase pursuant to an approved Vegetation Resources Management Plan. It is not expected that vegetation would encroach upon structures so that access or operation would become impaired. After the revegetated areas are established, the desert tortoise exclusion fence will be removed to allow small, ground-dwelling wildlife, including desert tortoise, access into the Project site. Native vegetation will be allowed to re-sprout from rootstocks and seed banks, and would be managed for compatibility with project O&M, including control of invasive weeds. Vegetation will be trimmed to 18 inches under panels and along east-west panel strings, and would be allowed to grow up to 3 or 4 feet elsewhere. Growth would be expected to be inhibited by routine maintenance along access roads, so would not be expected to reach heights of greater than 18 inches. Vegetation will be cleared from around buildings according to fire code requirements.

During O&M throughout the life of the Project, the security fence will be a wildlife-friendly design that includes a 6- to 8-inch gap between the lower fence margin (rail or mesh) and the ground. The bottom of the fence fabric (chain link or similar material) will be wrapped upward so that no sharp edges are exposed along the lower fence margin. Desert tortoise monitoring will be implemented during O&M to prevent injury or mortality of any tortoise moving through the Project. The Applicant will prepare and implement a monitoring and avoidance program to ensure no take of desert tortoise during O&M, while allowing small wildlife to move through the facilities. A detailed description of the O&M desert tortoise monitoring including the frequency

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(e.g., daily), duration, and responsible qualified biologist conducting the monitoring will be specified in the final monitoring and avoidance program.

Up to 10 permanent staff could be on the site at any one time for ongoing facility maintenance and repairs. Alternatively, approximately 2 permanent staff and 8 Project operators would be located off-site and would be on call to respond to alerts generated by the monitoring equipment at the Project site. Security personnel would be on-call. The O&M building would house the security monitoring equipment, inclusive of security cameras feeds for monitoring the Project 24-hours per day.

Decommissioning

The planned operational life of the proposed Project is 40 years. At the end of the power purchase agreement’s 25-year contract term, the power from the facility would be sold to another buyer and/or repowered to increase the plant’s efficiency. At the end of the Project’s useful life, the solar arrays and gen-tie line would be decommissioned and dismantled. A majority of Project components will be recycled or reused as circumstances allow and in compliance with all local, State, and Federal laws and regulations as they exist at the time of decommissioning. The Plan of Development, which has been submitted to BLM for the gen-tie line, will include a Closure, Decommissioning, and Reclamation Plan for the gen-tie line. At the time when the gen-tie line would not be further used by the public or private utility or power generator, this decommissioning plan for the gen-tie component would be updated if needed and submitted to the BLM for review and approval. Following removal of the above-ground and buried Project components, the site would be restored to its pre-solar facility conditions, or such condition as appropriate in accordance with County policy at the time of decommissioning. Decommissioning procedures would be designed to ensure public health and safety, environmental protection and compliance with all applicable laws, ordinances, regulations, and standards. When the BLM begins to consider decommissioning, they would contact the Service to determine if additional consultation, pursuant to section 7(a)(2) of the Act, would be appropriate. Consequently, we will not analyze the potential effects of decommissioning on the desert tortoise in this biological opinion.

Desert Tortoise Translocation

Desert tortoise individuals will be moved outside of fenced areas out of harm’s way or actively translocated to a pre-selected site pursuant to an approved desert tortoise Translocation Plan. Translocation to a recipient site will not be necessary for linear project features (e.g., transmission lines), or projects up to approximately 62 acres, if any tortoises present are allowed to leave a work area on their own or are moved out of harm’s way up to 984 feet (300 meters) from their capture locations into adjacent habitat. If suitable habitat is not available within 984 feet of the tortoises’ capture locations or other land ownership restrictions prevent the release of individuals within 984 feet, a recipient site is needed unless the Service determines that it is acceptable to release the tortoise(s) into suitable habitat greater than 984 feet from its capture location (Service 2018a). According to the BA, such desert tortoises are not expected to be translocated more than 1,640 feet from the Project boundary.

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The Applicant will develop a final Translocation Plan that requires approval by the Service and CDFW prior to the initiation of any ground-disturbing construction activities. The Translocation Plan will incorporate the Service’s desert tortoise translocation guidance (Service 2018a), as appropriate for the Project, and will include detailed descriptions of how and where tortoises found on the Project site and along the security fence and gen-tie lines will be translocated. The Translocation Plan will include maps identifying the recipient sites, a description of how disease prevalence of resident tortoises at the recipient sites will be documented, and how translocated tortoises will be monitored.

A translocated tortoise is defined as any desert tortoise that has been moved from a project footprint to a recipient site (Service 2018a). If translocation is necessary, health assessments must be performed on desert tortoises in the recipient populations, according to the most recent protocols, prior to translocating tortoise into these areas (see health assessment protocols, Service 2018a or most recent version available). Additional health assessments of the recipient and control tortoises (if warranted), not including collection of biological samples if previously collected within 1 year, should occur during the same season as the translocation. These initial health assessments will serve as the baseline condition to compare post-translocation assessments.

Conservation Measures (CM)

The Project includes conservation measures that will be implemented to avoid, minimize, and offset potential adverse effects to the desert tortoise. These measures were developed in coordination with the BLM, CDFW, and Applicant and will be implemented by the BLM and Applicant as part of the proposed action.

CM 1 Desert Tortoise Protection: No desert tortoise may be handled or relocated without authorization from the Service and CDFW. To handle or move desert tortoises, the Service must approve and designate an “Authorized Biologist” (Service 2009). When incidental take authorization is obtained, desert tortoises will be handled or translocated according to a Wildlife Relocation Plan, which will incorporate an approved Desert Tortoise Translocation Plan as specified in CM 2, with approval by both agencies. The final Wildlife Relocation Plan, including the final Desert Tortoise Translocation Plan will be completed prior to any ground disturbing activities.

The Applicant will employ a biologist who is qualified to conduct desert tortoise clearance surveys (qualified biologist), who will be on-site during all construction. Additionally, the Applicant will designate a Lead Biologist as the Field Contact Representative for purposes of the desert tortoise protection measures identified below.

The qualified biologist may be the Project’s Lead Biologist, a biological monitor, or another individual. The qualified biologist’s qualifications will be subject to review and approval by Riverside County. Qualifications may include work as a 12 compliance monitor on a project in desert tortoise habitat, work on desert tortoise trend plot or transect surveys, conducting surveys for desert tortoise, or other research or field work on desert tortoise. Attendance at a training course endorsed by the agencies (e.g., Desert Tortoise Council tortoise training workshop) is a supporting qualification.

The qualified biologist shall conduct pre-construction clearance surveys for each work area, watch for tortoises wandering into the construction areas, check under vehicles, and examine excavations and other potential pitfalls for entrapped animals. The qualified biologist will be responsible for overseeing compliance with desert tortoise protective measures and for coordination with the Project’s Lead Biologist/Field Contact Representative (described below). The qualified biologist shall have the authority to halt all Project activities that are in violation of these measures or that may result in take of a desert tortoise. The qualified biologist will not handle or relocate desert tortoises unless specifically authorized by the Service and CDFW. Any incident that is considered by the qualified biologist to be in noncompliance with these measures will be documented immediately by the qualified biologist.

The Field Contact Representative will be responsible for overseeing compliance with desert tortoise protective measures and for coordination with resource agencies. The Field Contact Representative will have the authority to halt any Project activities that may risk take of a desert tortoise or that may be inconsistent with adopted mitigation measures or permit conditions. Neither the Field Contact Representative nor any other Project employee may bar or limit any communications between any resource agency (i.e., BLM, the Service, and CDFW) or The County of Riverside Environmental Programs Division and any Project biologist, biological monitor or contracted biologist. Upon notification by the qualified biologist or another biological monitor of any noncompliance the Field Contact Representative will ensure that appropriate corrective action is taken. Corrective actions will be documented by the qualified biologist. The following incidents will require immediate cessation of any Project activities that could harm a desert tortoise: (1) location of a desert tortoise within a work area; (2) imminent threat of injury or death to a desert tortoise; (3) unauthorized handling of a desert tortoise, regardless of intent; (4) operation of construction equipment or vehicles outside a Project area cleared of desert tortoise, except on designated roads; and (5) conducting any construction activity without a biological monitor where one is required.

The Applicant will be responsible for implementing the following requirements, under direction by the qualified biologist and Field Contact Representative where appropriate. a. Preconstruction Clearance Survey. Transects will be spaced 15 feet apart. Clearance will be considered complete after two successive 100-percent 13

coverage surveys have been conducted without finding any desert tortoises. Clearance surveys must be conducted during the active season for desert tortoises (April through May or September through October). If a tortoise or an occupied tortoise burrow is located during clearance surveys, work activities will only proceed at the site and within a suitable buffer area after the tortoise has either moved away of its own accord, or if it has been translocated off the site under authorization by the Service and CDFW. b. Worker Training. The following specifications will be incorporated into the Worker Environmental Awareness Program (WEAP) training, identified in CM 6. Prior to the onset of construction activities, a desert tortoise education program will be presented by the Field Contact Representative or qualified biologist to all personnel who will be present on Project work areas. Following the onset of construction, any new employee will be required to formally complete the tortoise education program prior to working on-site. At a minimum, the tortoise education program will cover the following topics:

i. A detailed description of the desert tortoise, including color photographs;

ii. The distribution and general behavior of the desert tortoise;

iii. Sensitivity of the species to human activities;

iv. The protection the desert tortoise receives under the State and Federal Endangered Species Acts, including prohibitions and penalties incurred for violation;

v. The protective measures being implemented to conserve the desert tortoise during construction activities; and

vi. Procedures and a point of contact if a desert tortoise is observed on-site. c. Construction phase tortoise exclusion fencing. Prior to construction of solar facilities, temporary or permanent desert tortoise exclusion fencing (see CM 3) will be installed around the work areas. The fence will adhere to Service design guidelines, where applicable (for additional details see also the final EIR, Appendix C.5, section 3.2 Exclusion Fencing). The qualified biologist will conduct a clearance survey before the tortoise fence is enclosed to ensure no tortoises are in the work area. Any potentially occupied burrows will be avoided until monitoring or field observations (e.g., with a motion- activated camera or fiber-optic mounted video camera) determines absence. If live tortoises or an occupied tortoise burrow are identified in the work area, tortoises shall be relocated under authorization by the Service and CDFW or allowed to leave on their own accord before enclosing the fence. The fence shall be either continuously monitored prior to closure, or clearance surveys 14

shall be repeated prior to closure after tortoises are removed. Once installed, exclusion fencing will be inspected at least monthly and following all rain events, and corrective action taken if needed to maintain it. Fencing around each work area will include a “cattle guard” or desert tortoise exclusion gate at each entry point. This gate will remain closed at all times, except when vehicles are entering or leaving the Project area. If it is deemed necessary to leave the gate open for extended periods of time (e.g., during high traffic periods), the gate may be left open as long as a qualified biologist is present to monitor for tortoise activity in the vicinity. d. Unfenced work areas. Any work conducted in an area that is not fenced to exclude desert tortoises must be monitored by a qualified biologist who will stop work if a tortoise enters the work area. Work activities will only proceed at the site and within a suitable buffer area after the tortoise has either moved away of its own accord, or if it has been translocated off the site under authorization by the Service and CDFW. Work sites with potential hazards to desert tortoise (e.g., auger holes, steep-sided depressions) that are outside of the desert tortoise exclusion fencing either will be fenced by installing exclusionary fencing, or not left unfilled overnight. e. Operation phase tortoise monitoring. As specified in the Project BA, the Applicant will install a wildlife-friendly fence to allow desert tortoise to access the Athos solar facilities during O&M. The final EIR specifies that under this scenario the Applicant will prepare and implement a monitoring and avoidance program to ensure no take of desert tortoise during O&M, while allowing wildlife (including desert tortoise) to move through the facilities uninjured (see CM 3 for Wildlife-Friendly Fence measure). f. Tortoises under vehicles. The ground beneath vehicles parked outside of desert tortoise exclusion fencing will be inspected immediately prior to the vehicle being moved. If a tortoise is found beneath a vehicle, the vehicle will not be moved until the desert tortoise leaves of its own accord. g. Tortoises on roads. If a tortoise is observed on or near the road accessing a work area, vehicles will stop to allow the tortoise to move off the road on its own. h. Tortoise Observations. Any time a tortoise is observed within or near a work site, Project work activities will only proceed at the site and within a suitable buffer area after the tortoise has either moved away of its own accord, or if it has been translocated off the site under authorization by the Service and CDFW. If a tortoise is observed outside of exclusion fencing, construction will stop and the tortoise shall be allowed to move out of the area on its own. If a tortoise or tortoise burrow is observed within the exclusion fencing, 15

construction in the vicinity will stop, pending translocation of the tortoise or other action as authorized by the Service and CDFW.

i. Dead or Injured Specimens. Upon locating a dead or injured tortoise, the Applicant or its agent will immediately notify the Palm Springs Fish and Wildlife Office by telephone within 3 days of the finding. Written notification must be made within 5 days of the finding, both to the Palm Springs Fish and Wildlife Office and to the Service’s Division of Law Enforcement. The information provided must include the date and time of the finding or incident (if known), location of the carcass or injured animal, a photograph, cause of death or injury, if known, and other pertinent information.

CM 2 Wildlife Relocation Plan: The Applicant will prepare and implement a Wildlife Relocation Plan, which will incorporate an approved Desert Tortoise Translocation Plan, to ensure that desert tortoise (and other special-status wildlife species) are safely avoided or relocated off the Project site prior to construction. To handle or move desert tortoises, the Service must approve and designate an “Authorized Biologist” (Service 2009). The Wildlife Relocation Plan will conform to Service guidelines for desert tortoise surveys, avoidance, and relocation. The Wildlife Relocation Plan will specify methodology for pre-construction clearance surveys on the proposed solar fields and gen-tie routes; monitoring or tracking desert tortoise, and burrows that may be located during the surveys; avoidance to allow for wildlife to safely move out of harm’s way, or methods for localized “out of harm’s way” desert tortoise relocation; qualifications of field personnel who may handle desert tortoises; and follow-up monitoring of translocated animals. The final Wildlife Relocation Plan, including the final Desert Tortoise Translocation Plan will be completed prior to any ground disturbing activities.

CM 3 Wildlife-Friendly Fencing: The Athos Project will incorporate a wildlife-friendly fence similar to the design recommended for San Joaquin kit fox throughout the O&M phase. The security fence will leave a 6- to 8-inch gap between the lower fence margin (rail or mesh) and the ground. The bottom of the fence fabric (chain link or similar material) will be wrapped upward so that no sharp edges are exposed along the lower fence margin. The fence design will enable desert tortoises (and other wildlife such as desert kit fox and Mojave fringe-toed lizard) to access the Project area during the operations phase. The Applicant will prepare and implement a monitoring and avoidance program to ensure no take of desert tortoise during O&M. A detailed description of the O&M desert tortoise monitoring including the frequency (e.g., daily), duration, and responsible qualified biologist conducting the monitoring will be specified in the final monitoring and avoidance program. The avoidance and minimization measures to be implemented during O&M will minimize potential injury or mortality of desert tortoise and other wildlife within the operating facilities. 16

CM 4 Low-Impact Design: Low-impact vegetation management during construction and O&M will be implemented wherever feasible in all solar facilities to minimize interference with tortoise movement and activity. The low-impact design, revegetation of temporarily disturbed areas following construction, and native vegetation management is described above in the Project Description. After the revegetated areas are established, the desert tortoise exclusion fence will be removed to allow tortoise access into the site (CM 3).

CM 5 Biological Monitoring: The Applicant will assign a Lead Biologist as the primary point of contact for the lead and resource agencies regarding biological resources mitigation and compliance. For desert tortoise protection measures (CM 1), the Lead Biologist will serve as the Field Contact Representative. The Applicant will provide the resume of the proposed Lead Biologist to the County (as appropriate) for concurrence prior to onset of ground-disturbing activities. The Lead Biologist will have demonstrated expertise with the biological resources within the Project area. The Lead Biologist duties will vary during the construction, O&M, and decommissioning phases. In general, the duties will include, but will not be limited to those listed below:

a. Directly communicate with representatives of Riverside County, and other agencies, as appropriate.

b. Train and supervise additional biological monitors to ensure that all biological monitoring activities are completed properly and according to schedules. Monitoring will include inspections of any area or activity that may impact biological resources to ensure compliance with all mitigation measures for biological resources.

c. Conduct or oversee Worker Environmental Awareness Program (WEAP) training (CM 6).

d. Conduct or oversee clearance surveys and monitoring duties as defined in all adopted mitigation measures.

e. Halt any activities in any area if it is determined that the activity, if continued, would cause an unauthorized adverse impact to biological resources.

f. Clearly mark sensitive biological resource areas during construction, O&M, and decommissioning, and inspect these areas at appropriate intervals for compliance with regulatory terms and conditions.

g. Conduct or oversee bi-weekly compliance inspections during ground disturbing construction activities. Inspections will include delineating limits of disturbance, fence construction activities, pre-construction clearance surveys; and initial clearing, grubbing, and grading. 17

h. Inspect or oversee daily inspection of active construction or O&M activity areas where animals may have become trapped. At the end of each work day, either inspect installation of structures that prevent entrapment or allow escape during periods of construction inactivity. Periodically inspect areas with high vehicle activity (e.g., parking lots) for animals in harm’s way and relocate them if necessary.

i. During the operations phase of the Project, conduct quarterly compliance inspections (fencing condition, trash management, wildlife mortality logs, etc.); conduct weed monitoring and control (according to the Integrated Weed Management Plan).

j. Immediately notify the Applicant, County, and resource agencies (as applicable) in writing of dead or injured special-status species, or of any non- compliance with biological mitigation measures or permit conditions.

k. During construction, provide weekly verbal or written updates to Riverside County, and for any information pertinent to State or Federal authorizations, to the BLM, Service, or CDFW.

l. During construction and O&M, prepare and submit monthly and annual compliance reports, respectively.

CM 6 Worker Environmental Awareness Training: The Lead Biologist will prepare and implement a Worker Environmental Awareness Program (WEAP). The Applicant will be responsible for ensuring that all workers at the site receive WEAP training prior to beginning work on the Project and throughout construction and operations. The WEAP will be available in English and Spanish. The Applicant will submit the WEAP to Riverside County for approval prior to implementation. If the County does not respond to submittal of the draft Plan within 60 days, the Project owner may consider this a waiver of the County’s authority to comment and the Plan may be considered approved. The WEAP will:

a. Be developed by or in consultation with the qualified biologist and/or Lead Biologist and consist of an onsite or training center presentation with supporting written material and electronic media, including photographs of protected species, available to all participants.

b. Provide an explanation of the function of flagging that designates authorized work areas; specify the prohibition of soil disturbance or vehicle travel outside designated areas.

c. Discuss general safety protocols such as vehicle speed limits, hazardous substance spill prevention and containment measures, and fire prevention and protection measures. 18

d. Review mitigation and biological permit requirements.

e. Explain the sensitivity of the vegetation and habitat within and adjacent to work areas, and proper identification of these resources.

f. Discuss the Federal and State Endangered Species Act and the consequences of non-compliance with them.

g. Discuss the locations and types of sensitive biological resources on the Project site and adjacent areas and explain the reasons for protecting these resources.

h. Inform participants that no snakes, other reptiles, birds, bats, or any other wildlife will be harmed or harassed.

i. Place special emphasis on species that may occur on the Project site and/or gen-tie lines, including special-status plants, desert tortoise, Mojave fringe- toed lizard, burrowing owl, golden eagle, nesting birds, desert kit fox, American badger, and burro deer.

j. Specify guidelines for avoiding rattlesnakes and reporting rattlesnake observations to ensure worker safety and avoid killing or injuring rattlesnakes. Wherever feasible, rattlesnakes should be safely removed from the work area using appropriate snake handling equipment, including a secure storage container for transport.

k. Describe workers’ responsibilities for avoiding the introduction of invasive weeds onto the Project site and surrounding areas, describe the Integrated Weed Management Plan.

l. Provide contact information for the Lead Biologist and instructions for notification of any vehicle-wildlife collisions or dead or injured wildlife species encountered during Project-related activities.

m. Include a training acknowledgment form to be signed by each worker indicating that they received training and will abide by the guidelines.

CM 7 Best Management Practices: The Applicant shall undertake the following measures during construction and O&M to avoid or minimize impacts to listed species.

a. Minimize traffic impacts. The Applicant will specify and enforce maximum vehicle speed limits as specified in the Traffic Control Plan, to minimize risk of wildlife collisions and fugitive dust.

b. Minimize lighting impacts. Night lighting, when in use, shall be designed, installed, and maintained to prevent side casting of light towards surrounding fish or wildlife habitat. 19 c. Avoid use of toxic substances. Soil bonding and weighting agents used for dust suppression on unpaved surfaces shall be non-toxic to wildlife and plants. d. Minimize noise and vibration impacts. The Applicant will conform to noise requirements specified in the noise analysis of the final EIR to minimize noise to off-site habitat. e. Potable and non-potable water sources such as tanks, ponds, and pipes shall be covered or otherwise secured to prevent birds from entering. Prevention methods may include storing water within closed tanks or covering open tanks with 2-centimeter netting. Dust abatement will use the minimum amount of water on dirt roads and construction areas to meet safety and air quality standards. Water sources (e.g., hydrants, tanks, etc.) shall be checked periodically by biological monitors to ensure they do not create puddles that could attract desert tortoises to roadways. f. All trash and food-related waste shall be contained in vehicles or covered trash containers inaccessible to ravens, coyotes, or other predators and removed from the site regularly. g. Workers shall not feed wildlife or bring pets to the Project site. h. The Applicant may install temporary or permanent netting or fencing around equipment, work areas, or Project facilities to prevent desert tortoise exposure to hazards such as toxic materials or vehicle strikes, or prevent birds from nesting on equipment or facilities. Bird deterrent netting will be maintained free of holes and will be deployed and secured on the equipment in a manner that, insofar as possible, prevents birds from becoming trapped inside the netted area or within the excess netting. The biological monitor will inspect netting (if installed) twice daily, at the beginning and close of each work day. The biological monitor will inspect temporary exclusion fencing (if installed) weekly. i. Wildlife entrapment. Project-related excavations shall be secured to prevent wildlife entry and entrapment. Holes and trenches shall be backfilled, securely covered, or fenced. Excavations that cannot be fully secured shall incorporate wildlife ramp or other means to allow trapped animals to escape. At the end of each work day, a biological monitor shall ensure that excavations have been secured or provided with appropriate means for wildlife escape. j. All pipes or other construction materials or supplies will be covered or capped in storage or laydown areas. No pipes or tubing will be left open either temporarily or permanently, except during use or installation. Any construction pipe, culvert, or other hollow materials will be inspected for wildlife before it is moved, buried, or capped. 20

CM 8 Gen-tie Lines: Gen-tie line support structures and other facility structures shall be designed in compliance with current standards and practices to discourage their use by raptors for perching or nesting (e.g., by use of anti-perching devices). This design would reduce the potential for increased predation of desert tortoise.

CM 9 Minimization of Vegetation and Habitat Impacts: Prior to ground-disturbing activities, work areas (including, but not limited to, staging areas, access roads, and sites for temporary placement of construction materials and spoils) will be delineated with construction fencing (e.g., the common orange vinyl material) or staking to clearly identify the limits of work and will be verified by the Lead Biologist. No paint or permanent discoloring agents shall be applied to rocks or vegetation (to indicate surveyor construction activity limits or for any other purpose). Fencing/staking will remain in place for the duration of construction. Spoils will be stockpiled in disturbed areas. All disturbances, vehicles, and equipment will be confined to the fenced/flagged areas.

When feasible, construction activities will minimize soil and vegetation disturbance to minimize impacts to soil and root systems. Upon completion of construction activities in any given area, all unused materials, equipment, staking and flagging, and refuse shall be removed and properly disposed of, including wrapping material, cables, cords, wire, boxes, rope, broken equipment parts, twine, strapping, buckets, and metal or plastic containers. Any unused or leftover hazardous products shall be properly disposed of offsite. Hazardous materials will be handled and spills or leaks will be promptly corrected and cleaned up according to applicable requirements. Vehicles will be properly maintained to prevent spills or leaks. Hazardous materials, including motor oil, fuel, antifreeze, hydraulic fluid, grease, will not be allowed to enter drainage channels.

CM 10 Integrated Weed Management Plan: The Applicant will prepare and implement an Integrated Weed Management Plan (IWMP) to minimize or prevent invasive weeds from infesting the site or spreading into surrounding habitat. Riverside County and the BLM (for gen-tie segments on BLM lands) must approve the plan. If the County does not respond to submittal of the draft IWMP within 60 days, the Project owner may consider this a waiver of the County’s authority to comment and the Plan may be considered approved. The IWMP will identify weed species occurring or potentially occurring in the Project area, means to prevent their introduction or spread (e.g., vehicle cleaning and inspections), monitoring methods to identify infestations, and timely implementation of manual or chemical (as appropriate) suppression and containment measures to control or eradicate invasive weeds. The IWMP will identify herbicides that may be used for control or eradication, and avoid herbicide use in or around any environmentally sensitive areas. The IWMP will also include a reporting schedule, to be implemented by the Lead Biologist.

CM 11 Vegetation Resources Management Plan: The Applicant will prepare and implement a Vegetation Resources Management Plan, to be reviewed and approved 21 by Riverside County. If the County does not respond to submittal of the draft Plan within 60 days, the Project owner may consider this a waiver of the County’s authority to comment and the Plan may be considered approved. The goal will be to prevent further degradation of areas that may be temporarily disturbed by Project activities, but not to restore pre-disturbance habitat values (those impacts will be mitigated through off-site compensation). The Vegetation Resources Management Plan will detail the methods to revegetate temporarily impacted sites; salvage cacti from the Project footprint; and long-term vegetation management within the solar facility during its operations. The final Vegetation Resources Management Plan will be completed prior to any ground disturbing activities. a. Revegetation of Temporarily Impacted Sites. The Plan will specify methods to prevent or minimize further site degradation; stabilize soils; maximize the likelihood of vegetation recovery over time (for areas supporting native vegetation suitable as desert tortoise habitat); and minimize soil erosion, dust generation, and weed invasions. The nature of revegetation will differ according to each site, its pre-disturbance condition, and the nature of the construction disturbance (e.g., disc‐and‐roll grading vs. blading). The Plan will include: (a) soil preparation measures, including locations of re- contouring, decompacting, imprinting, or other treatments; (b) details for topsoil storage, as applicable; (c) plant material collection and acquisition guidelines, including guidelines for salvaging, storing, and handling plants from the Project site, as well as obtaining replacement plants from outside the Project area (plant materials will be limited to locally occurring native species from local sources); (d) a plan drawing or schematic depicting the temporary disturbance areas (drawing of “typical” gen-tie structure sites will be appropriate); (e) time of year that the planting or seeding will occur and the methodology of the planting; (f) a description of the irrigation, if used; (g) success criteria; and (h) a monitoring program to measure the success criteria, commensurate with the Plan’s goals, (i) contingency measures for failed revegetation efforts not meeting success criteria. For temporary disturbance on BLM lands, any specific BLM requirements would supersede this measure. b. Operations Phase On-Site Vegetation Management: The Plan will include methods and scheduling for on-site vegetation management throughout the operations phase, describing mowing or other vegetation treatments to be implemented, disposal of mown material, and incorporating all applicable components of the Integrated Weed Management Plan, including any proposed herbicide usage. 22

Table 1: Estimated Natural Vegetation Impacts and Habitat Compensation Acreages.1

Estimated Estimated Solar Gen-tie Vegetation Gen-tie Total Compensation Compensation Facility ROW Community Impact Disturbance Ratio Acres6 Acres Acres2 Acres2 Acres Private Land: 298.4 15.4 3.1 301.5 0.5:1 150.8 Sonoran creosote bush scrub (incl 7.5 acres of desert pavement) Private Land: Desert 73.2 12.2 2.4 75.6 3:1 226.8 dry wash woodland4

Gen-tie ROWs 1, 2, 3 0 109.7 21.9 21.9 1:1 21.9 (no critical habitat)

Public Land: Sonoran creosote bush scrub (incl 16.4 acres of desert pavement) Public Land:Desert 0 46.3 9.3 9.3 5:1 46.3 dry wash woodland

Gen-tie ROWs 3 0 13.3 2.7 2.7 5:1 13.35 (part) and 4 (critical habitat)

Public Land: Sonoran creosote bush scrub Public Land: Desert 0 11.7 2.3 2.3 5:1 11.75 dry wash woodland Estimated compensation totals: Total compensation acreage: 470.8 (to include minimum 25 acres in Critical Habitat) Sonoran creosote bush scrub: 186.0 Desert dry wash woodland acreage: 284.8

1. Acreages account for the 23-acre avoidance area and the underground gen-tie options. 2. Including all acreage within gen-tie ROW; actual disturbance acres will be less. 3. Estimated disturbance acreage on gen-tie routes calculated as 20 percent of ROW acreage; see text. 4. Note proposed 23-acre footprint reduction; see text. 5. Estimated 25 total acres of critical habitat compensation requirement; vegetation types need not match impact types. 6. Consisting of restoration and enhancement, land acquisition, or a combination of both. 23

CM 12 Compensation for Natural Habitat Impacts on BLM-administered Land and County- administered Land: The following measure is discussed in the Project BA which updates and replaces information in the draft EIR and final EIR. Table 1 provides an estimate of compensation acreages; however, final compensation will be based upon final calculation of impacted acreage.

a. BLM-administered Lands. Habitat compensation ratios on BLM-administered lands subject to the DRECP will be consistent with Table 18 of the DRECP LUPA, including the 5:1 ratio for desert dry wash woodland and desert tortoise critical habitat. The Applicant will coordinate with BLM, CDFW, and the Service to provide compensation for critical habitat impacts at the 5:1 ratio through restoration and enhancement within the Chuckwalla CHU, land acquisition within the Chuckwalla CHU, a combination of both, or through an enhanced compensation ratio within the Chemehuevi CHU.

b. County-administered Lands. Habitat compensation ratios for disturbance on private lands under the jurisdiction of Riverside County and not subject to the DRECP are specified in Section 3.5.10 (BIO-6) of the final EIR. The Applicant will acquire and protect, in perpetuity, compensation habitat to offset loss of natural habitat on County-administered lands on the Project site. No compensation would be required for impacts to anthropogenic land use or recovering areas. The acreages and ratios will be based upon final calculation of impacted acreage. Acreages will be adjusted as appropriate for other alternatives or future modifications during implementation. To the extent that Sonoran creosote bush scrub may substantially recover from disc-and-roll grading for site preparation, total impact acreage will be reduced. Compensation will be provided for impacts to the following resources, at the specified ratios (acres acquired and preserved to acres impacted; see Table 1):

i. Desert dry wash woodland: 3:1

ii. Sonoran creosote bush scrub: 0.5:1

Criteria for the acquisition, initial protection and habitat improvement, and long-term maintenance and management of compensation lands will include all the following: provide habitat value that is comparable to the habitat impacted, taking into consideration soils, vegetation, topography, human- related disturbance, invasive species, wildlife movement opportunity, proximity to other protected lands, management feasibility, and other habitat values.

The Applicant shall provide funding or bonding for the acquisition in fee title or in easement, initial habitat improvements and long-term maintenance and management of the compensation lands prior to construction activities on native habitat. Within 18 months of completing construction, the Applicant or 24

an approved third party will prepare a Compensation Plan, identifying the proposed compensation lands, and specifying the land ownership, conservation easement terms, long-term management, and responsibility for funding or endowment. The Compensation Plan will be submitted for review and approval to Riverside County. The County will consult with CDFW in its review of the Compensation Plan to ensure that the mitigation will support any permits and authorizations to be issued by CDFW.

c. Mojave Desert Tortoise Conservation Bank: The Applicant is coordinating with the Mojave Desert Tortoise Conservation Bank (Conservation Bank) to identify and acquire compensation credit within sites 7 and 8 of the Bank. The final number of compensation credits will depend on final calculations of disturbance acreage, vegetation types, and applicable compensation ratios.

The Conservation Bank sites are located within the Colorado Desert Recovery Unit, in the Chemehuevi CHU, whereas the critical habitat areas on the Project are within the Chuckwalla CHU. Therefore, the Conservation Bank is not anticipated to be used to compensate for impacts to critical habitat (see CM 12a) but may be used to compensate for impacts to desert dry wash woodland and Sonoran creosote bush scrub on BLM-administered lands and private (County-administered) lands. The available acreage of desert dry wash woodland within sites 7 and 8 may not meet the Project’s total desert dry wash woodland compensation requirement. Approximately 58 acres are needed for DRECP compliance, with the remaining impact acreage located on private lands. The Applicant will identify additional lands if needed, or coordinate with BLM and the Service to implement restoration and enhancement measures such as habitat restoration of degraded lands, closure of unauthorized routes, invasive species control, or tortoise fencing along roadways. If the Mojave Desert Tortoise Conservation Bank does not have enough compensation credits, the final EIR states that the primary focus area for acquiring parcels to maintain/improve connectivity will be along the I-10 corridor between Desert Center and Cactus City with a priority on parcels that connect conserved lands on either side of the I-10 through large culverts or bridges. Details regarding compensation lands will be developed within the 12-month timeframe identified in the DRECP.

CM 13 DRECP CMAs: The following conservation measures are applicable to the BLM component of the Project on BLM-administered lands (gen-tie segments), consistent with the DRECP LUPA within DFAs. The private land components are not subject to the DRECP CMAs. Below is a summary of the measures pertinent to desert tortoise during pre-construction, construction, and O&M. A full description of the measures can be found in Attachment 3 of the Project BA and in the DRECP (BLM 2016). 25 a. LUPA-BIO-2: Designated biologist(s) [or qualified biologist(s)] will conduct, and oversee where appropriate, activity-specific required biological monitoring during pre-construction, construction, and decommissioning to ensure that avoidance and minimization measures are appropriately implemented and are effective. b. LUPA-BIO-4: Seasonal Restrictions. For activities that may impact focus and BLM Special-Status Species, implement all required species-specific seasonal restrictions on pre-construction, construction, operations, and decommissioning activities. c. LUPA-BIO-5: Worker Education. All activities, as determined appropriate on an activity-by-activity basis, will implement a worker education program that meets the approval of the BLM. d. LUPA-BIO-6: Subsidized Predators Standards. Subsidized predator standards, approved by BLM, in coordination with the Service and CDFW, will be implemented during all appropriate phases of activities, including but not limited to renewable energy activities, to manage predator food subsidies, water subsidies, and breeding sites including Common Raven management actions, application of water and/or other palliatives for dust abatement, and control of non-native species, and compensatory mitigation that contributes to LUPA-wide raven management. e. LUPA-BIO-7: Restoration of Areas Disturbed by Construction Activities But Not Converted by Long-Term Disturbance. f. LUPA-BIO-10: Standard Practices for Weed Management. Consistent with BLM, state, and national policies and guidance, integrated weed management actions will be carried out during all phases of activities, as appropriate. g. LUPA-BIO-11: Nuisance Animals and Invasive Species. Control of nuisance animals and invasive species according to guidelines for the use of poisons, including rodenticides, herbicides, pesticides, and insecticides. h. LUPA-BIO-14: General Standard Practices. Implement general standard practices to protect Focus and BLM Special-Status Species (e.g., desert tortoise) such as prohibiting domestic pets, leaving trash, and feeding wildlife; checking construction materials for the presence of wildlife; covering steep- walled trenches or excavations; and minimizing natural vegetation removal. i. LUPA-BIO-SVF-6: Microphyll woodland. Impacts to microphyll woodland will be avoided, except for minor incursions. j. LUPA-BIO-IFS-6: When working in areas where protocol or clearance surveys are required, biological monitoring will occur with any geotechnical 26

boring or geotechnical boring vehicle movement to ensure no desert tortoises are killed or burrows are crushed.

k. LUPA-BIO-IFS-7: A designated biologist [or qualified biologist] will accompany any geotechnical testing equipment to ensure no tortoises are killed and no burrows are crushed.

l. LUPA-BIO-IFS-8: Inspect the ground under the vehicle for the presence of desert tortoise any time a vehicle or construction equipment is parked in desert tortoise habitat outside of areas fenced with desert tortoise exclusion fencing. If a desert tortoise is seen, it may move on its own. If it does not move within 15 minutes, a designated biologist [or qualified biologist] may remove and relocate the animal to a safe location.

m. LUPA-BIO-IFS-9: Vehicular traffic will not exceed 15 miles per hour within the areas not cleared by protocol level surveys where desert tortoise may be impacted.

n. LUPA-BIO-COMP-1: Compensation. Impacts to biological resources will be compensated using the standard biological resources compensation ratio in Table 18. Compensation for the impacts to desert tortoise critical habitat will be in the same critical habitat unit and in the same recovery unit as the impact.

o. LUPA-COMP-1: For third party actions, compensation activities must be initiated or completed within 12 months from the time the resource impact occurs (e.g. ground disturbance, habitat removal, route obliteration, etc. for construction activities; wildlife mortality, visual impacts, etc. due to operations). A 6 month extension may be authorized, subject to approval by the authorizing officer, dependent on the resources impacted and compensation due diligence of the project developer.

Action Area

The implementing regulations to section 7(a)(2) of the Act describe the action area as all areas affected directly or indirectly by the Federal action and not merely the immediate area affected by the proposed project (50 CFR §402.02). The action area is the area of potential direct or indirect effects of the proposed action and any interrelated or interdependent human activities; the direct and indirect effects of these activities include associated physical, chemical, and/or biological effects of considerable likelihood (Service and NMFS 1998). Indirect effects are those that are caused by the proposed action and are later in time but are still reasonably certain to occur (Service and NMFS 1998). Analyses of the environmental baseline, effects of the action on the species and designated critical habitat, cumulative effects, and the impacts of the incidental taking, are based upon the action area as determined by the Service (Service and NMFS 1998).

The action area for the Athos Project includes the area of desert tortoise habitat that would be impacted by the entire project footprint (including Federal and private lands), totaling 27 approximately 3,440 acres. The action area also includes a distance of up to 1,640 feet (500 meters) from the project site boundaries where tortoises may be moved out of harm’s way to avoid injury from construction or O&M-related activities. Desert tortoises are not expected to be translocated more than 1,640 feet. Since regional desert tortoise augmentation sites have not been identified for the Colorado Desert Recovery Unit, to accommodate the potential translocation of desert tortoise from the Athos Project site, the action area also includes the Desert Sunlight solar project’s recipient (translocation) site that will be finalized in the Translocation Plan, and all contiguous tortoise habitat within 4.0 miles of the release point of each tortoise translocated at the recipient site. By including habitat within 4.0 miles of the release points, we are including the areas where tortoises may move following translocation.

The action area also encompasses conservation areas acquired and potentially restored or enhanced as needed to offset the destruction of desert tortoise habitat resulting from construction and O&M activities. The acquisition, potential restoration or enhancement, management, and monitoring of these conservation areas are expected to have only beneficial effects to tortoises. The Applicant is coordinating with the Mojave Desert Tortoise Conservation Bank (CMBC 2018) to acquire compensation credit within sites located in the Colorado Desert Recovery Unit (sites 7 and 8 of the Conservation Bank). The final number of compensation credits will depend on final calculations of disturbance acreage, vegetation types, and applicable compensation ratios, as approved by the Service. The Conservation Bank sites are within the Chemehuevi CHU, whereas the desert tortoise critical habitat areas on the project site are within the Chuckwalla CHU. The Applicant will coordinate with BLM and the Service to provide compensation for critical habitat impacts at a 5:1 ratio through restoration and enhancement within the Chuckwalla CHU, land acquisition within the Chuckwalla CHU, a combination of both, or through an enhanced compensation ratio within the Chemehuevi CHU.

Analytical framework for the jeopardy determination

Section 7(a)(2) of the Act requires that Federal agencies ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of listed species. “Jeopardize the continued existence of” means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species (50 CFR 402.02).

The jeopardy analysis in this biological opinion relies on four components: (1) the Status of the Species, which describes the range-wide condition of the species, the factors responsible for that condition, and its survival and recovery needs; (2) the Environmental Baseline, which analyzes the condition of the species in the action area, the factors responsible for that condition, and the relationship of the action area to the survival and recovery of the species; (3) the Effects of the Action, which determine the direct and indirect impacts of the proposed Federal action and the effects of any interrelated or interdependent activities on the species; and (4) the Cumulative Effects, which evaluate the effects of future, non-Federal activities in the action area on the species. 28

As such, in accordance with policy and regulation, the jeopardy determination is made by evaluating the aforementioned components to determine if implementation of the proposed action is likely to cause an appreciable reduction in the likelihood of both the survival and recovery of the species in the wild by reducing the reproduction, numbers, and distribution.

Analytical framework for the destruction or adverse modification determination

Section 7(a)(2) of the ESA requires that Federal agencies insure that any action they authorize, fund, or carry out is not likely to destroy or to adversely modify designated critical habitat. A final rule revising the regulatory definition of “destruction or adverse modification” was published on February 11, 2016 (81 FR 7214) and became effective on March 14, 2016. The revised definition states:

Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat for the conservation of a listed species. Such alterations may include, but are not limited to, those that alter the physical or biological features essential to the conservation of a species or that preclude or significantly delay development of such features (Service 2016).

The “destruction or adverse modification” analysis in this biological opinion relies on four components: (1) the Status of Critical Habitat, which describes the range-wide condition of the critical habitat in terms of the key components (i.e., essential habitat features, primary constituent elements, or physical and biological features) that provide for the conservation of the listed species, the factors responsible for that condition, and the intended value of the critical habitat overall for the conservation/recovery of the listed species; (2) the Environmental Baseline, which analyzes the condition of the critical habitat in the action area, the factors responsible for that condition, and the value of the critical habitat in the action area for the conservation/recovery of the listed species; (3) the Effects of the Action, which determines the direct and indirect impacts of the proposed Federal action and the effects of any interrelated and interdependent activities on the key components of critical habitat that provide for the conservation of the listed species, and how those impacts are likely to influence the conservation value of the affected critical habitat; and (4) Cumulative Effects, which evaluate the effects of future non-Federal activities that are reasonably certain to occur in the action area on the key components of critical habitat that provide for the conservation of the listed species and how those impacts are likely to influence the conservation value of the affected critical habitat.

For purposes of making the “destruction or adverse modification” determination, the Service evaluates whether the effects of the proposed Federal action, taken together with cumulative effects, are likely to impair or preclude the capacity of critical habitat in the action area to serve its intended conservation function to an extent that appreciably diminishes the range-wide value of critical habitat for the conservation of the listed species. The key to making that finding is understanding the value (i.e., the role) of the critical habitat in the action area for the conservation/recovery of the listed species based on the Environmental Baseline analysis. 29

Status of species and critical habit area

The following summarizes information about the desert tortoise that was discussed in detail in the Service’s Programmatic Biological Opinion for Activities in the California Desert Conservation Area (Service 2017b). Please refer to that document as well as the revised recovery plan (Service 2011a) and our 5-year review (Service 2010a) for additional detailed information about these topics and the species’ description, life history, and habitat affinities.

The Service listed the desert tortoise as threatened in 1990 (Service 1990) and the threats described in the listing rule and both recovery plans (Service 1994a, 2011a) continue to affect the species. The most apparent threats to the desert tortoise are those that result in mortality and permanent habitat loss across large areas, such as urbanization and large-scale renewable energy projects, and those that fragment and degrade habitats, such as proliferation of roads and highways, off-highway vehicle activity, and habitat degradation caused by nonnative invasive plant species. The desert tortoise requires 13 to 20 years to reach sexual maturity, has low reproductive rates during a long period of reproductive potential, and individuals experience relatively high mortality early in life (Service 2011a).

Reproduction, Numbers, and Distribution

Reproduction

Desert tortoise reproduction is influenced by a number of factors, some of which include the number of reproducing females across the range, home range size and location, and resource availability and quality (Service 2011a, Sieg et al. 2015). Female tortoises typically lay fewer eggs per clutch but produce multiple clutches per reproductive season, April through July (Lovich et al. 2015). Periods of increased rainfall, such as in El Nino years, can result in an increase in annual plant forage biomass resulting in an increase in annual egg production (Lovich et al. 2015). Young desert tortoises rely upon high-quality, low-fiber plants (e.g., native annual plants) with nutrient levels not found in the invasive nonnative plants that have increased in abundance across its range (Oftedal et al. 2002; Tracy et al. 2004). Compromised nutrition of young desert tortoises likely represents an effective reduction in recruitment by reducing the number of animals that reach adulthood (Drake et al. 2016). Consequently, the reproductive capacity of the desert tortoise may be compromised to some degree by the abundance and distribution of invasive weeds across its range; the continued increase in human access across the desert likely continues to facilitate the spread of nonnative plants and further affect the reproductive capacity of the desert tortoise.

Numbers

Range-wide monitoring, initiated in 2001 by the Service, is the first comprehensive attempt to determine the number of individuals, or densities of desert tortoises, in conservation areas across their range. The Desert Tortoise Recovery Office (Service 2015) used annual density estimates obtained from this sampling effort to evaluate range-wide trends in the density of desert tortoises over time. This analysis indicates that densities in the Northeastern Mojave Recovery Unit have increased since 2004, with the increase apparently resulting from increased survival of adults and 30 sub-adults moving into the adult size class. The analysis also indicates the populations in the other four recovery units are declining. Desert tortoise densities in the Joshua Tree and Piute Valley conservation areas within the Colorado Desert Recovery Unit seem to be increasing, although densities in the recovery unit as a whole continue to decline.

Distribution

In the 5-year review, the Service (2010a) concluded the distribution of the desert tortoise has not changed substantially since the publication of the original recovery plan in 1994 in terms of the overall extent of its range. However, desert tortoises have been removed from several thousand acres because of solar development and military activities, and large parts of suitable habitat within this range have been converted to other uses that no longer support desert tortoise. For example, urban development around desert cities, such as Las Vegas, Barstow, and Lancaster, has contributed to habitat loss throughout the range and desert tortoises have been essentially removed from the 18,197-acre southern expansion area at the Fort Irwin National Training Center (Service 2014). The development of large solar facilities has also reduced the amount of habitat available to desert tortoises. No solar facilities have been developed within desert tortoise conservation areas, such as Desert Wildlife Management Areas, although such projects have occurred in areas that the Service considers important linkages between conservation areas, e.g., Desert Sunlight Solar Farm Project near Desert Center, California (Service 2012a).

Critical Habitat

The Service designated about 6.5 million acres of critical habitat for the desert tortoise in portions of California, Nevada, Arizona, and Utah (Service 1994b). The physical or biological features which constitute desert tortoise critical habitat include the following: (1) sufficient space to support viable populations within each of the recovery units and to provide for movement, dispersal, and gene flow; (2) sufficient quality and quantity of forage species and the proper soil conditions to provide for the growth of these species; (3) suitable substrates for burrowing, nesting, and overwintering; (4) burrows, caliche caves, and other shelter sites; (4) sufficient vegetation for shelter from temperature extremes and predators; and (5) habitat protected from disturbance and human-caused mortality.

Threats to critical habitat include urban development, military operations, OHV activities, and livestock grazing (Service 1994b). The spread of invasive nonnative plants, changes to natural fire regimes, and environmental contaminants also threaten critical habitat areas. In addition, threats from long-term climate trends, such as recurrent and prolonged drought, and ecological processes, such as invasive nonnative plant infestations and consequent wildfire risk, are widespread in some areas. These threats have potentially degraded the six primary constituent elements (PCEs) of desert tortoise critical habitat in some areas and if continued could threaten the viability of populations in affected areas, including habitat linkages between core populations (Service 1994b). 31

Chuckwalla Critical Habitat Unit

Part of the Project site is located within the Chuckwalla Critical Habitat Unit. Designated critical habitat occurs in the southern extent of the action area adjacent to the gen-tie transmission line (segment 4) on BLM land within the Chuckwalla Critical Habitat Unit. Approximately 4,498 acres of the Chuckwalla CHU overlap the East Riverside DFA within subunit 2 of the Cadiz Valley and Chocolate Mountains Ecoregion (Service 2016). The first areas of overlap lies within a portion of the project and are adjacent to and immediately north of I-10 in three or four parcels to the east of California Highway 177; the second area lies to the east of the first area and between I-10 and Chuckwalla Valley Road, which is south of I-10. These parcels form a portion of the northern edge of the Chuckwalla CHU; the main body of the critical habitat unit lies to the south. Major roads likely disrupt the movement, dispersal, and gene flow of desert tortoises. I-10 in the Chuckwalla CHU is an example of a large and heavily travelled road that likely disrupts movement, dispersal, and gene flow. Roads that have been fenced and provided with underpasses may alleviate this fragmentation to some degree; however, such facilities have not been in place for sufficient time to determine whether they will eliminate fragmentation.

Summary

To summarize the range-wide condition of the desert tortoise, threats continue to adversely affect the species across the range, populations are in decline in four of the five revised recovery units, and while the distribution boundary has not changed, suitable habitat within that boundary has been reduced. The Service’s goal to recover and delist the desert tortoise (Service 2011a) is challenged by a number of factors but loss of suitable habitat that supports resource needs is one of the primary impediments to achieve recovery of desert tortoise, specifically the stated recovery action to protect existing populations and habitat (Service 2011a).

In our 5-year review we recommended the status of the desert tortoise as a threatened species be maintained since the threats identified in the original listing rule continue to affect the species, with invasive species, wildfire, and renewable energy development coming to the forefront as important factors in habitat loss and conversion of suitable habitat to unsuitable (Service 2010a). Since the completion of our 5-year review, we have issued several biological opinions that affect large areas of desert tortoise habitat because of numerous proposals to develop renewable energy within its range. In aggregate across the range of the desert tortoise, these projects will result in an overall loss of approximately 43,920 acres of habitat. We also predicted that the project areas supported up to 3,721 desert tortoises. Since 2017, 583 desert tortoises have been observed during construction of projects; most of these individuals were translocated from work areas, although some desert tortoises have been killed (Service 2017b). This trend of converting habitat into areas that are unsuitable for desert tortoise continues, constricting the species into a smaller portion of its range and further fragmenting habitat suitable for feeding, breeding, and sheltering.

Recovery

The revised recovery plan for the desert tortoise (Service 2011a) lists three objectives and associated criteria to achieve delisting. The first objective is to maintain self-sustaining 32 populations of desert tortoises within each recovery unit into the future, using the criterion of increasing rates of population change (λ) for desert tortoises (i.e., λ > 1) over at least 25 years (i.e., a single generation). This criterion is measured by extensive, range-wide monitoring across conservation areas within each recovery unit, and by direct monitoring and estimation of vital rates (recruitment, survival) from demographic study areas within each recovery unit. The second objective addresses the distribution of desert tortoises, with the goal of maintaining well- distributed populations of desert tortoises throughout each recovery unit. The criterion used to achieve this objective is an increasing distribution of desert tortoises throughout each conservation area over at least 25 years. The third objective is to ensure that habitat within each recovery unit is protected and managed to support long-term viability of desert tortoise populations. The criterion used to achieve this objective is to maintain no net loss in the quantity of desert tortoise habitat within each conservation area until population viability is ensured.

The revised recovery plan (Service 2011a) also recommends connecting blocks of desert tortoise habitat, such as critical habitat units and other important areas to maintain gene flow between populations. Linkages defined using least-cost path analysis (Averill-Murray et al. 2013) illustrate a minimum connection of habitat for desert tortoises between blocks of core habitat and represent priority areas for conservation of population connectivity.

As indicated above, only one recovery unit, the Northeastern Mojave Recovery Unit, has demonstrated increased densities of desert tortoise since 2004, with the increase apparently resulting from increased survival of adults and more sub-adults moving into the adult size class. Desert tortoise populations in the other four recovery units are declining. Challenges to desert tortoise recovery include understanding why these populations are in decline and how ongoing threats, and the synergies of those threats, affect our ability to recover the species.

ENVIRONMENTAL BASELINE

Regulations implementing the Act (50 CFR § 402.02) define the environmental baseline as the past and present impacts of all Federal, State, or private actions and other human activities in the action area. Also included in the environmental baseline are the anticipated impacts of all proposed Federal projects in the action area that have undergone section 7 consultation, and the impacts of State and private actions that are contemporaneous with the consultation in progress.

The Project area is within the Colorado Desert Recovery Unit and is located within Chuckwalla Valley between the alluvial fans emanating from the Eagle Mountains to the west, Chuckwalla Mountains to the south, and Coxcomb Mountains to the north, and is north of I-10 and approximately 4 miles east and northeast of the town Desert Center. The Chuckwalla Area of Critical Environmental Concern (ACEC) is located just south of I-10 and also immediately adjacent to the northern Project parcel; gen-tie segment 4 is located within the Chuckwalla ACEC. The Desert Lily Preserve and Palen ACEC are located to the east of the Project. Alligator Rock ACEC, Palen Dry Lake ACEC, Palen-Ford Playa Dunes ACEC, and Corn Springs ACEC are also located nearby. Joshua Tree National Park is located approximately two miles north of the Project. Nearby special designation areas include California Desert National Conservation Lands and the Chuckwalla Special Recreation Management Area. The Project site is located 33 outside the boundaries of BLM wilderness areas or National Landscape Conservation System (NCLS) lands. The Project site is relatively flat, with gradients of less than one percent sloping downward to the southeast. Ground surface elevations range from approximately 491 feet in the southeast to 588 feet in the northwest.

Desert tortoises are affected to some extent by I-10, California Highway 177, several access roads, the Chuckwalla Valley Raceway, agricultural operations, invasive nonnative plants, and potentially by predation from common ravens foraging, nesting, and roosting along existing transmission lines within the action area and elsewhere in the vicinity. Ongoing land uses covered under previously issued biological opinions (see below) have allowed for additional take of tortoises and degradation of tortoise habitat in or near the Project area.

Past Consultations within the Action Area

The Service issued a programmatic biological opinion evaluating the effects of BLM’s CDCA Plan Amendment for BLM’s Northern and Eastern Colorado Desert (NECO) Plan (BLM 2002) on desert tortoise and its critical habitat on June 17, 2002, and as amended, on March 31, 2005, and November 30, 2007 (Service 2005, 2007). We found the BLM’s plan guidance was not likely to jeopardize the continued existence of desert tortoise or adversely modify critical habitat. The programmatic biological opinion exempted take of desert tortoise for casual uses (e.g., recreation, mining, and OHV use), livestock grazing, and burro removal that BLM authorizes through approval of the CDCA Plan. Projects outside of these activity categories require separate consultation.

The Service issued five biological opinions exempting take of several species, including the desert tortoise, associated with transmission and gen-tie lines and solar power generating facilities in the vicinity of the action area. These include the Devers to Palo Verde No. 2 Transmission Line Project in 2011 (Service 2011b), the Desert Sunlight Solar Farm Project and SCE Red Bluff Substation in 2011 (Service 2011c), the Desert Harvest Solar Project in 2013 (Service 2013), and the Palen Solar Power Project in 2018 (Service 2018b). While issuance of biological opinions for these features has allowed or may allow for additional take of desert tortoises and degradation of habitat in the Project area, these biological opinions also included avoidance, minimization, and conservation measures that largely maintained the environmental baseline of the species.

The Service issued a programmatic biological opinion to BLM on July 20, 2012, regarding the landscape level effects of designating Solar Energy Zones (SEZs) and amending land use plans in six southwestern States (Arizona, California, Colorado, Nevada, New Mexico, and Utah) (Service 2012b). The Riverside East SEZ is the largest of the proposed SEZs in the six-State action area, with a total developable area of 147,910 acres. The Project is located within this Riverside East SEZ.

The Service issued a programmatic biological opinion evaluating the effects of the land use plan amendment for the DRECP on the desert tortoise and its critical habitat (Service 2016). The goal of the DRECP is to conserve and manage plant and wildlife communities in the desert regions of 34

California while facilitating the timely permitting of compatible renewable energy projects within BLM-designated DFAs. The DFAs are located in areas that have lower potential to support desert tortoises (Nussear et al. 2009). Within the Chuckwalla CHU, I-10 currently functions as a major barrier to movement, dispersal, and gene flow to the south (Service 2016). The DRECP included criteria to site and design projects to maintain the connectivity for wildlife across I-10 through three north-south wildlife corridors that includes a 3-mile-wide linkage between the Chuckwalla and Palen mountains, and a 1.5-mile-wide linkage between the Chuckwalla Mountains to the Chuckwalla Valley. The Service concluded that the land use plan amendment for the DRECP was not likely to jeopardize the desert tortoise or result in the destruction or adverse modification of its designated critical habitat. The action area analyzed for the Project in this biological opinion is within a DFA.

In 2017, the Service (2017a) issued a programmatic biological opinion evaluating the effects to desert tortoise and its designated critical habitat from construction, operation, maintenance, and decommissioning activities covering a wide range of BLM management actions within the CDCA. Management actions associated with habitat restoration and enhancement, route repairs and closures, fence construction, recreation activities, mine leasing, and other land actions were analyzed. The Service concluded that these BLM management actions are not likely to jeopardize the desert tortoise or result in the destruction or adverse modification of its designated critical habitat.

In sum, the biological opinions listed above have authorized a relatively small amount of take of individual desert tortoises within the large areas that they cover. Implementation of conservation measures similar to those included in this biological opinion minimizes the associated adverse effects of the taking of desert tortoise and impacts to designated critical habitat. Because the action areas defined for these projects narrowly intersect the action area analyzed for the Project in this biological opinion, only a relatively small portion of the total take of individual tortoises associated with the above projects would coincide geographically with the proposed Project. However, the collective effect of these various project approvals has likely reduced desert tortoise population levels in portions of the action area, which could reduce the extent of population distribution and connectivity to an unknown degree.

Habitat Characteristics within the Action Area

The BRTR for the Project indicates that active and fallow agricultural fields cover approximately 71 percent of the Project area. The active agricultural area is an existing date palm farm. The fallow agricultural areas consist of abandoned jojoba, citrus, or date palm farms. On private land, agriculture occurs on parcel groups A, C, B, D, E, and G. On BLM land, fallow agriculture occurs on the ROW access areas only.

Two natural vegetation communities, including creosote bush scrub and desert dry wash woodland, and one natural habitat type, desert pavement, occur within the gen-tie routes and solar fields. Sonoran creosote bush scrub covers approximately 12 percent of the undisturbed portions of the Project site and intergrades with desert dry wash woodland along desert washes. Within the Project site, this community occurs on sandy soils with a shallow clay pan. Dominant 35 plants are creosote bush (Larrea tridentata) and white bursage (Ambrosia dumosa). Other occasional plants include indigo bush (Psorothamnus emoryi), sweetbush (Bebbia juncea), and button brittlebush (Encelia frutescens). On private land, Sonoran creosote bush vegetation occurs on parcel group D and gen-tie 2. On public land, this community occurs on gen-tie segments 1, 1A, 2, 3 and ROW access. Desert dry wash woodland is identified by BLM and CDFW as a sensitive vegetation community and is characteristic of desert washes. This vegetation community comprises approximately 4 percent (adjusted to account for the reduced footprint, as described below) of the Project site and is dominated by an open tree layer of desert ironwood (Olneya tesota A. Gray), blue paloverde (Parkinsonia florida), and smoketree (Psorothamnus spinosus). The understory is a modified creosote scrub with big galleta (Pleuraphis rigida ), brittlebush (Encelia farinosa), desert lavender (Condea [=Hyptis emoryi] emoryi), and occasional Russian thistle (Salsola tragus). On private lands, desert dry wash woodland occurs within parcel groups D and F, and gen-tie segments 1, 1A, and 3 and on public lands within gen-tie segments 1, 1A, 2, and 3. See Table 2 for an accounting of impacts to the Project area’s vegetation types.

According to the BA, the project has been designed with a reduced footprint that avoids 23 acres of desert dry wash woodland habitat. Desert pavement comprises less than 1 percent of the Project site and occurs on private lands in parcel group F and gen-tie segments 3 and 4 and on public lands in gen-tie segments 2, 3, and 4. Desert pavement is descriptive of soil and substrate conditions rather than vegetation. It is sparsely vegetated with an intermittent layer of cryptogamic crust with sandy and gravelly mixed alluvium. The shrub layer consists of extremely sparse creosote bush and the herb layer is characterized by rigid spine flower and desert sunflower. Desert pavement is often interwoven between areas of creosote bush scrub and desert dry wash woodland where it occurs on the Project. Other occasional plants in the herb layer include annual buckwheat (Eriogonum sp.) and brittle spineflower (Chorizanthe brevicornu).

Approximately 14 percent of the Project site comprises former agricultural lands that have partially recovered from previous disturbance and are mapped as recovering creosote bush scrub or salt bush scrub. These areas have recolonized with ruderal species and sparse native vegetation. Recovering creosote bush scrub on private lands occur in parcel groups C and E. There is no recovering creosote bush scrub on BLM lands. Within the recovering saltbush scrub vegetation community on the Project site, saltbush is less dominant than Arizona honeysweet (Tidestromia oblongifolia). This vegetation community is located only on private lands at parcel group G. Developed and disturbed areas (approximately 5 percent) consist of abandoned homes, buildings, completely denuded sections of old agricultural fields, or unnamed dirt roads that are in regular use. On private lands, developed/disturbed areas include parcel groups A, B, C, and G. There are no developed/disturbed areas on BLM lands.

Five native cactus species occur within private and public lands of the Project site, including Wiggins' cholla (Cylindropuntia echinocarpa), branched pencil cholla (Cylindropuntia ramosissima ), California barrel cactus (Ferocactus cylindraceus ), common fishhook cactus (Mammillaria tetrancistra), and beavertail pricklypear (Opuntia basilaris). Other native tree species found within the Project include ocotillo (Fouquieria splendens ssp. splendens), honey mesquite (Prosopis glandulosa), and catclaw acacia (Senegalia greggii). Seven invasive nonnative plant species occur on the Project site, including Sahara mustard (Brassica 36 tournefortii), prickly Russian thistle (Salsola tragus), redstem stork's bill (Erodium cicutarium), tamarisk or saltcedar (Tamarix ramosissima), Mediterranean grass (Schismus barbatus and S. arabicus), highway ice plant (Carpobrotus edulis), and Washington fan palm (Washingtonia robusta).

Soils within the action area are mapped as Rositas-Dune land-Carsitas and Vaiva-Quilotosa-Hyder- Cipriano-Cherioni, which are dominated by a very high sand percentage with a moderate to high susceptibility to wind erosion. The Project site is within a region of active aeolian (wind-blown) sand migration and deposition, which creates sand dune formations and habitat in the Chuckwalla Valley. The majority of the Project site is described as modern alluvial fan deposits consisting of unconsolidated to slightly consolidated sand and gravel that is considered an active aeolian source. Active aeolian sources surround parcel group A to the northwest and southwest. A northern portion of gen-tie segments 1 and 1A are an active aeolian source. Parcel group G is

Table 2: Project Vegetation, Habitat, and Land Cover Acreages by Land Ownership.1

Solar Gen-tie Vegetation, Habitat, or Land Gen-tie Facility ROW Total Cover (private)2 (private) (BLM) 2 Natural vegetation and habitat types 295.9 15.5 106.9 418.3 Sonoran creosote bush scrub

Desert pavement 7.5 0 16.6 24.1 Desert dry wash woodland 91.2 12.2 58.4 161.8 subtotals 394.6 27.7 181.9 604.2 Recovering creosote bush scrub 289.7 12.1 1.2 303.0 Recovering salt bush scrub 183.3 - - 183.3 subtotals 473.0 12.1 1.2 486.3 Anthropogenic land use and cover 167.9 1.1 3.8 172.8 types Developed/disturbed Active agriculture 151.2 0.3 - 151.5 Fallow agriculture 2,032.6 2.2 7.9 2,042.7 Open water (agricultural pond) 2.3 - - 2.3 subtotals 2,354.0 3.6 11.7 2,369.3 Totals3 3221.6 43.4 194.8 3459.8

1 Total land cover acreages reported in the table include the 23-acre avoidance area in desert dry wash woodland habitat on private land within the solar facility. Accounting for the 23-acre avoidance area, the desert dry wash woodland land cover totals 138.8 acres (161.8 acres – 23 acres). 2 Gen-tie acreages represent entire 100-foot ROW; actual disturbance area will be limited to access (where new or improved roads are needed), facilities sites, and other work areas such as conductor tensioning sites. 3 Minor variations from total acreage identified in 2 and text above are due to rounding error or differing GIS files created for the Project and/or obtained from other sources. 37 also considered to have active sand transport areas to the north and south. Human disturbances, such as agriculture, have affected aeolian processes on other portions of the Project site, resulting in stabilized sand or slightly consolidated sand and gravel. Human disturbances within the action area include agriculture, residential, renewable energy, energy transmission, historical military operations, recreational development, highways, and access roads.

Status of the Species in the Action Area

The action area is situated within the southern portion of the Colorado Desert Recovery Unit (Service 2011a). This portion of the recovery unit has been characterized as remote, receiving little use, having extensive but little multiple uses of public lands, and being in a state that is not urbanizing or developing (Service 2005). From 2004 to 2014, the number of desert tortoises in conservation areas in the Colorado Desert Recovery Unit has declined (Service 2015), decreasing by about 36 percent (Service 2017b). The highest desert tortoise densities within this recovery unit are in Chemehuevi and Ward valleys (approximately 30-60 miles north-northeast of the Project), on the Chuckwalla Bench within the Chuckwalla ACEC (approximately 20 miles south of the Project), and in Joshua Tree National Park (northwest of the Project).

The U.S. Geological Survey (USGS) developed a quantitative habitat model for the range of the Mojave population of desert tortoise, which includes the Colorado Desert Recovery Unit in California (Nussear et al. 2009). The model provides a measure of the statistical probability of desert tortoise occurrence and a geospatial depiction of known and potential desert tortoise habitat. To date, the USGS model is viewed as the best available data for predicting desert tortoise occurrence on a landscape scale; however, it does not account for site-specific and anthropogenic conditions across the landscape that affect habitat potential at a local scale. Based on the USGS model, the action area contains suitable desert tortoise habitat that ranges in statistical probability of habitat potential between 0.1 and 0.6 (Figure 2), though these values do not reflect habitat degradation resulting from anthropogenic activities (Nussear et al. 2009). Predicted desert tortoise habitat potential values increase from north to south within the action area; the northern extent has habitat potential values between 0.1 and 0.3 while the central, southern, and southeastern extents of the project have habitat potential values between 0.4 and 0.6. Within the Project site, the highest habitat potential values correspond with lands in and north of the Chuckwalla CHU. Based on surveys conducted in association with renewable energy projects within the southern portion of the Colorado Desert Recovery Unit, we consider that the area north of I-10 near the town of Desert Center and within the DFA supports a relatively low abundance of desert tortoises (Service 2013, 2018a).

On a regional scale, the action area is situated outside priority habitat and linkages for desert tortoise, based on the Nussear et al. (2009) habitat model and least cost paths modeled by Hagerty et al. (2011). On a local scale, desert tortoise connectivity is impaired by onsite and adjacent land uses and natural habitats, as the Project site is within and/or bounded by fallow and active agricultural lands, renewable energy facilities, California Highway 177 to the west, I-10 with associated berms to the south, and dune habitat to the northeast. In combination, these surrounding land uses limit the site’s suitability to desert tortoises and create a barrier to tortoise movement; however, individual desert tortoises can make long-distance movements through

38 restricted habitats, which may contribute to gene flow (Berry 1986, Edwards et al. 2004a). Much of the Project site and surrounding lands are fallow and active agriculture. Threats to tortoise from agriculture include the incidental use of these lands by ravens, which prey upon juvenile tortoises; introduction of invasive plants and the susceptibility of fallow lands to become infested by nonnative, invasive species that can spread into adjacent wildlands; mortality to tortoises that have entered agricultural lands to forage; impacts to desert tortoises through drawdown of the water table; production of fugitive dust; and possible introduction of toxic chemicals (Service 2010a). The nearby sand transport zone is a habitat type generally not a regular part of tortoises’ home ranges due to poor cover, low forage, and non-friable, sandy soils; however, on rare occasion desert tortoise sign has been documented within this habitat. The existing I-10 underpasses (Figure 3) provide connectivity and safe movement corridors for tortoises between habitat to the north and south of I-10, but the fencing does not prevent animals from accessing I- 10, or funnel animals to the underpasses (Service 2018b).

Below we summarize the desert tortoise survey information based on the BA (BLM 2019) and the BRTR (Ironwood 2019). Full-coverage pre-project desert tortoise surveys were conducted consistent with Service protocols (Service 2010b) on the gen-tie routes and private land parcels with native vegetation. Belt transects were approximately 33 feet wide to provide 100 percent (full) coverage of the entire Project area. Along the gen-tie lines, spur roads, and access roads, 33-feet belt transects were employed 98 feet on each side of the centerline, resulting in a 197- feet-wide survey corridor. With approval from the Service and CDFW prior to surveys, tortoise surveys on the disturbed or recovering lands (i.e., current and former agriculture) within the groups of solar facility parcels also conformed to the Service protocol, with the exception that transects were spaced at a 65.6-feet width due to the poor habitat quality. Per the protocol, all tortoise sign, e.g., live tortoises (all age classes), shells, bones, scutes, scats, burrows, pallets, tracks, egg shell fragments, and courtship rings, were recorded. Protocol surveys were conducted during the following periods in 2017 and 2018:

● October 21 to 26, 2017: parcels containing native vegetation;

● May 9 to 27, 2018: disturbed parcels containing disturbed habitat and the gen-tie segments; and

● October 30-31, 2018: new gen-tie segment 1 alignment, new gen-tie segment 1A (alternate alignment), access road, and spur roads 1 and 2.

39

Figure 2. Desert Tortoise Habitat Model and Desert Tortoise Sign Based on Pre-Project Surveys, Athos Solar Project (from BLM 2019). 40

Figure 3. Desert Tortoise Connectivity and Interstate 10 Wildlife Underpasses, Athos Solar Project (from Ironwood 2019). 41

A total of ten desert tortoise burrows, one of which had active desert tortoise sign (tracks and scat), were found within the survey boundary but no live tortoises were detected (Figure 2). On private lands within parcel group C, three burrows were detected that were of poor quality and not definitively tortoise. In parcel group F, three tortoise burrows of deteriorated condition were detected. On public lands, active desert tortoise sign was detected during the fall 2017 survey west of gen-tie segment 2 with tracks, scat, and a burrow in good condition. Two other burrows were deteriorated (one west of gen-tie 2) or not definitively tortoise (one along gen-tie 3). Spring 2018 surveys did not result in detections of any active desert tortoise sign.

Portions of the Project gen-tie route are adjacent to the gen-tie routes surveyed for the adjacent Palen Solar Project during 2009, 2010, and 2013. Those surveys detected several desert tortoises near the Project’s gen-tie routes 3 and 4. During 2016 surveys for the Palen Solar Project, active tortoise sign (one active burrow with tracks and scat and two records of scat) was found in the same vicinity. Despite limited observations of desert tortoise during the Project’s protocol surveys, portions of the Project site may contribute to desert tortoise movement between populations in occupied habitat areas to the north and south. Higher quality desert tortoise habitat exists in the Palen Mountains to the northeast and the Chuckwalla Mountains to the south, and the Project site is located between these areas. Desert tortoises may use low-quality intermountain habitat, such as most of the survey area, as dispersal routes, providing connectivity between habitat areas in the surrounding mountains (Averill-Murray, R. C. and Averill-Murray 2005). Several bridges or large culverts cross underneath I-10 in the Project vicinity and may provide some opportunity for wildlife movement beneath the freeway.

Pre-project surveys represent a snapshot in time and the size and location of desert tortoise home ranges vary year to year (Berry 1986). Also, desert tortoise absence from specific areas is difficult to confirm since they hibernate in shelters for part of the year (Thompson 2004, MacKenzie et al. 2005). However, based on protocol tortoise surveys associated with this Project and other surrounding renewable energy projects, there are desert tortoise throughout the Chuckwalla Valley in and surrounding the action area. Because tortoise may occasionally move outside of their activity centers depending on the time of year and other factors (Sadoti et al. 2017), we anticipate some tortoises could occasionally move onto the Project area.

Protocol surveys are used to determine tortoise presence and calculate tortoise density on project sites. The calculation is based on the observation of live tortoises during pre-project surveys. However, pre-project protocol desert tortoise surveys for the Athos Project did not detect live tortoises and indicated tortoise sign only. Therefore, to derive density of desert tortoise on the Project site, we will use alternative methods used in past consultations.

An alternative method of calculating density within the Project is to apply the calculation used in the amended biological opinion for the CDCA for the NECO planning areas (Service 2007). To derive density of desert tortoises outside the DWMAs and other conservation areas within the Colorado Desert Recovery Unit, we multiplied the average density of desert tortoises within these more protected areas in the recovery unit by 10 percent (Service 2007). This calculation is based on our professional opinion that densities outside DWMAs and other protected areas are generally lower based on habitat conditions, including elevation, rainfall, vegetation community

42 composition, and other geographic variables that typically result in supporting fewer animals. Density of tortoises at the recovery unit level is based on line-distance sampling from 2004 to 2014. Mean density for the Colorado Desert Recovery Unit is 9.6 tortoises per square mile (Service 2015). Applying the reduced density of tortoises for areas outside protected areas (0.1 x 9.6 = 0.96 tortoises per square mile) to the solar facility footprint (3,440 acres / 640 acres = 5.4 square miles) yields a rounded estimate of five large desert tortoises that may occur in the Project footprint (5.4 square miles x 0.96 desert tortoises per square mile = 5.2).

Status of Critical Habitat within the Action Area

Within the action area, I-10 approximately parallels the northern boundary of the desert tortoise Chuckwalla CHU, bisecting it into a smaller northern potion and a much larger southern portion. Interstate 10 is a semi-permeable barrier to tortoise movement between the Chuckwalla CHU to the south and Joshua Tree National Park and the Pinto Mountain CHU to the north. The vast majority of the Chuckwalla CHU (over 1,023,000 acres) is located south of I-10 and south of the Project site. Approximately 25 acres (1.5 linear miles) of the southern portion of the Project occurs within the Chuckwalla CHU. The Project would impact Sonoran creosote bush scrub and desert dry wash woodland habitat within the CHU. All of gen-tie segment 4, which extends north of I-10 from the Red Bluff Substation, and a western portion of gen-tie segment 3 is located in the northern boundary of the CHU. According to the BA, the potential impact acreages are estimated as 20 percent of the ROW, or approximately 5 acres within critical habitat. Surface disturbance is anticipated to be minimal for access road construction because gen-tie segment 4 is adjacent to the existing Desert Sunlight Project gen-tie route and access road; and gen-tie segment 3 would be adjacent to the ROW for the approved Palen Solar Project, with one shared access route.

Desert tortoise critical habitat includes the following six Primary Constituent Elements (PCEs) (Service 1994b):

1. Sufficient space to support viable populations within each of the six recovery units to provide for movement, dispersal, and gene flow.

2. Sufficient quantity and quality of forage species and the proper soil conditions to provide for the growth of such species.

3. Suitable substrates for burrowing, nesting, and overwintering.

4. Burrows, caliche caves, and other shelter sites.

5. Sufficient vegetation for shelter from temperature extremes and predators.

6. Habitat protected from disturbance and human-caused mortality.

Generally, while critical habitat areas are relatively unaffected by human uses, the critical habitat area that would be affected by the Project has been previously impacted by construction and ongoing O&M activities associated with existing transmission lines. At least five of the six PCEs

43 are met where the CHU overlaps with the Project action area. The PCE requirement that habitat be protected from disturbance and human-caused mortality is not met along the gen-tie routes or the access roads due to proximity to I-10, the Red Bluff substation, paved and unpaved roads, off-highway vehicle use, presence of domestic and feral dogs, trash dumping and vehicle parking. However, this portion of the CHU continues to be occupied by tortoise, including burrows and active tortoise sign (Service 2013, Service 2018b, Ironwood 2019).

Proposed Translocation Recipient and Control Site

As described in the Desert Tortoise Translocation section above, desert tortoise individuals will be moved outside of fenced areas out of harm’s way or actively translocated to a pre-selected site pursuant to an approved desert tortoise Translocation Plan. Translocation to a recipient site will not be necessary if any tortoises present are allowed to leave a work area on their own or moved out of harm’s way. According to the BA, desert tortoises are not expected to be moved more than 1,640 feet from the Project boundaries. If suitable habitat is not available within 984 feet of the tortoises’ capture locations or other land ownership restrictions prevent the release of individuals within 984 feet (e.g., privately owned land lacking permission), a recipient site must be selected (Service 2018a). The specific location of the recipient site has not been selected and will be identified in the final Translocation Plan that requires approval by the Service (see Conservation Measures section above).

The Service’s translocation guidance recommends translocating animals to regional augmentation sites (Service 2018a). However, an augmentation site for the Colorado Desert Recovery Unit has not been identified. Therefore, we recommend that tortoises that need to be translocated from within the Project boundary will be translocated to the recipient site identified for the Desert Sunlight Project (Ironwood 2011). The general area of the Desert Sunlight Recipient Site (Recipient Site) is undeveloped and, therefore, not affected by extensive habitat destruction or degradation. The Recipient Site may be impacted to some extent by invasive nonnative plants and predation from common ravens foraging, nesting, and roosting along existing Metropolitan Water District (MWD) transmission lines that bisect the site. The site may also be impacted due to berms constructed to protect MWD’s Colorado River Aqueduct. No designated critical habitat occurs in or near the Recipient Site. The current tortoise density in the Recipient Site is estimated to be 2.0 tortoises per kilometer2 (NER 2017), which is below the recommended density threshold of 4.0 tortoises per kilometer2 listed in our translocation guidance for the area (Service 2018a). There are portions of the Recipient Site with higher densities in the south and tortoises would not be translocated into portions of the site where density estimates exceed the recommended density threshold. Based on information in the final report for the Desert Sunlight Translocation Plan, fatalities of tortoises due to translocation were not significantly different than those animals monitored on the control site (NER 2017). If another recipient site or augmentation site is designated prior to start of construction of the Athos Project, the Service will work with the Applicant, BLM, and CDFW to determine whether that site is a better alternative for tortoise conservation than the Recipient Site, and this biological opinion will be amended accordingly.

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Based on pre-project survey data and our site density analysis, we do not anticipate this Project will need a control site. Translocation of more than five tortoises from the Project site (cumulative number) triggers the full translocation guidance, which includes identifying a suitable control site and a long-term monitoring program (Service 2010c). This conclusion considers previous translocation research that has demonstrated translocation to be an effective conservation tool (see Service 2017c) and the low density of large tortoises that may be found within the Project footprint. Because our current translocation guidance recommends that for each translocated tortoise, the same number of tortoises are tracked in a control site, monitoring of five tortoises in a control site will not likely result in statistically valid information to add to our current body of translocation knowledge (Field et al. 2007, Drake et al. 2009, Esque et al. 2010, Nussear et al. 2012, Farnsworth et al. 2015, Hinderle et al. 2015, Brand et al. 2016, Nafus et al. 2017). However, if more than five large tortoises are translocated from the Athos solar facility, that will trigger a reinitiation of this biological opinion and we will reconsider whether a control site may be necessary for this Project at that time.

Conservation Lands

Habitat acquisition, with potential restoration or enhancement as needed, is proposed to offset the loss of tortoise habitat resulting from the Project. As described in CM 12 and CM 13 (LUPA- BIO-COMP-1), the compensation lands selected for acquisition will be within the Colorado Desert Recovery Unit, with potential to contribute to desert tortoise habitat connectivity and build linkages between desert tortoise designated critical habitat, known populations of desert tortoise, and/or other preserve lands. These future conservation lands will be conserved and managed in perpetuity for desert tortoises. Based on information regarding habitat acreages within the Conservation Bank (Circle Mountain Biological Consultants, Inc. 2018), there are sufficient acres of Sonoran creosote bush scrub and potentially sufficient acres available of desert dry wash woodland habitat within sites 7 and 8. Using available data on landownership and willing sellers, the Service has determined that a sufficient amount of privately owned desert tortoise habitat exists within the Colorado Desert Recovery Unit that will be available for acquisition.

The abundance of tortoises in potential conservation lands is unknown since the specific areas have not yet been identified. However, because acquisition will focus on areas connected to lands with tortoise habitat equal to or better in quality than the Project footprint, we anticipate that these conservation lands will contain suitable habitat that is currently occupied or likely to be occupied by desert tortoise in the future.

EFFECTS OF THE ACTION

Effects of the action refer to the direct and indirect effects of an action on the species or critical habitat, which then factor into the environmental baseline, along with the effects of other activities that are interrelated or interdependent with that action. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration. Indirect effects are those that are caused by the proposed action and are later in

45 time, but are still reasonably certain to occur. In contrast to direct effects, indirect effects can often be more subtle, and may affect species and habitat quality over an extended period, long after project activities have been completed. Indirect effects are of particular concern for long- lived species such as the desert tortoise because project-related effects may not become evident in individuals or populations until years later.

Methodology

Permanent and Temporary Impacts

Because full recovery of desert vegetation can take several decades, we consider all ground- disturbing impacts associated with the proposed Project to be effectively permanent. Vasek et al. (1975) found that in the Mojave Desert transmission line construction and O&M activities resulted in a permanently devegetated maintenance road, enhanced vegetation along the road edge and between tower sites, and reduced vegetation cover under the towers, which recovered significantly but not completely in approximately 33 years. Based on a quantitative review of studies evaluating post-disturbance plant recovery and success in the Mojave and Sonoran deserts, Abella (2010) found that reestablishment of perennial shrub cover generally occurs within 100 years, but in fewer than 40 years in some situations. He also found that vegetation recovery times are likely impacted by a number of variables, including but not limited to climate (e.g., temperatures and rainfall), amount of cover of nonnative plants, and level of ongoing disturbance. Based on these factors, we consider temporary impacts to be equivalent to permanent impacts for the purposes of our effects analysis relative to the 40-year life of the Project.

Small Tortoises and Eggs

We do not provide an estimate for the number of small tortoises (less than 180 mm midline carapace length [MCL]) that would be injured or killed as a result of Project construction and O&M. The Service occasionally uses the work of Turner et al. (1987) to estimate the number of desert tortoises on a project site that are smaller than 180 mm MCL. These estimates involve several assumptions and the estimates can change depending on project size, location, and timing of construction. However, we anticipate that any loss of small tortoises will not result in population-level effects in the recovery unit or range-wide since the number of small tortoises that occur on the Project site is likely low given the low number of adults that likely occupy the Project area.

We also do not provide an estimate for the number of eggs that would be moved or destroyed as a result of Project construction and O&M. We assume it is possible a small number of eggs may be affected by the Project given that tortoise burrows were detected during pre-project surveys. However, we anticipate that the loss of eggs would not be significant at a population level because areas where eggs would be moved or destroyed and the population of reproductive adults within these areas that would produce eggs likely comprises a very small proportion of the reproductive capacity of desert tortoises in the action area and in the Colorado Desert Recovery Unit.

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Direct Effects

Direct effects associated with the construction and O&M of the Project may result in death or injury to desert tortoises. Direct effects associated with the Project include death or injury resulting from (1) project equipment and construction activities, (2) increased traffic and road access, (3) translocation of tortoises from the Project area, and (4) loss of habitat that provides resource needs such as foraging and sheltering that support reproduction, population numbers, and distribution.

Construction and Operations and Maintenance

Death and injury of desert tortoises would result from collisions with or crushing by vehicles or heavy equipment, including individuals that take shelter under parked vehicles and are killed or injured when vehicles are moved. Desert tortoises would also be injured or killed during vegetation removal and clearing, trenching activities, and entrapment in open trenches and pipes. Individual tortoises or their eggs would be crushed or buried in burrows by machinery during construction and O&M-related activities. Because of increased human presence in the area, desert tortoises may be killed or injured due to collection or vandalism associated with increased encounters with workers, visitors, and unauthorized pets. Desert tortoises may also be attracted to the construction area by application of water to control dust, placing them at higher risk of death or injury due to the causes described above.

To minimize incidental death and injury of desert tortoises residing in or entering the construction or O&M disturbance areas (e.g., solar facility, gen-tie line, and access roads), the applicant would implement the general and species-specific actions specified in the Conservation Measures (CM) section as part of the proposed action. This section outlines specific measures and their component parts that are summarized below with representative examples of how the applicant would minimize adverse effects to the desert tortoise. The take of tortoises would be minimized by employing qualified biologist(s) and Lead Biologist(s), as necessary (CM’s 1 and 13). These biologists would be present during all ground-disturbing construction activities and present on the linear or other unfenced sections that have not been cleared of tortoises. All qualified biologists will have authority to halt all activities in any area where there would be an unauthorized adverse impact. All qualified biologists must meet the minimum qualifications as outlined in CM 1 above. Additionally, workers will be trained on how to avoid impacts to the tortoise (CM’s 1, 6, and 13). Parked vehicles will be inspected prior to being moved and if a tortoise is found beneath a vehicle it will be allowed to move of its own accord (CM 1). The enforcement of speed limits (CM’s 7 and 13) will also reduce adverse impacts to desert tortoise associated with construction and O&M activities.

To keep tortoises from entering the solar facility during the construction phase, the Applicant will fence the facility with tortoise exclusion fencing in accordance with the Desert Tortoise Field Manual (Service 2009) or most up-to-date Service protocol, and incorporate shade structures along the fence per CM 1 (see also final EIR, Appendix C.s, section 3.2.3). After clearance surveys, any desert tortoises located would be either moved out of harm’s way or translocated to the approved Recipient Site as outlined in the Service-approved Desert Tortoise

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Translocation Plan (CM’s 1 and 2). The qualified biologist or Lead Biologist will monitor daily Project activities that involve the use of heavy equipment or vehicles during construction along the gen-tie line, or any other Project elements that are unfenced (CM 1). During O&M, the Applicant will install a wildlife-friendly fence to allow tortoise to move through the Project area (CM 3). The Applicant will prepare and implement a monitoring and avoidance program to ensure no take of desert tortoise during O&M (CM 1).

Any desert tortoises undetected during the initial clearance surveys may be located during construction activities by routine site inspections by the qualified biologist, Lead Biologist, or incidental observations by construction workers who will receive Worker Environmental Awareness Program training. This training would be administered to all onsite personnel for the life of the Project (CM 6). This training would enhance the effectiveness of onsite personnel to improve detection and avoidance of desert tortoises and ensure proper translocation procedures are adhered to during construction activities. Additional measures to avoid and minimize incidental death and injury of desert tortoises include ensuring open trenches, pits, or excavated areas are backfilled or secured with escape ramps to provide wildlife exit points, or covered completely to prevent wildlife access and entrapment (CM 7), limiting disturbance areas (CM 9), and minimizing the amount of water used for dust abatement to avoid ponding, which acts as an attractant to desert tortoises and their predators (CM 7).

Overall, we expect that death and injury of most large tortoises would be avoided during construction and O&M activities through compliance with the conservation measures. Although we estimate up to five large tortoises may occur within the Project area, we anticipate if necessary all tortoises encountered may be moved out of harm’s way or translocated by an approved Authorized Biologist (CM 1 and 2). We also anticipate that small tortoises may be taken but based on the difficulty of detecting these small individual tortoises (Service 2015), we are unable to provide a number. The loss of these individuals is not likely to appreciably diminish the numbers of desert tortoises overall because relatively few desert tortoises will be affected by the activities considered in this biological opinion.

Desert Tortoise Translocation

In addition to construction and O&M-related activities, accidental death and injury could result from capturing, handling, and moving tortoises for the purpose of translocation. Accidental death and injury could result from (1) disease transmission associated with handling tortoises; (2) stress associated with moving individuals outside of their established home range; (3) stress associated with artificially increasing the density of tortoises in an area and thereby increasing competition for resources; and (4) disease transmission between translocated and resident tortoises. Capture and handling of translocated and resident tortoises for the purposes of assessing health and monitoring could also result in accidental death or injury from handling to conduct visual health assessments, draw blood for ELISA testing (enzyme-linked immunosorbent assay), and attaching transmitters.

Incidental take of desert tortoises associated with the proposed action can be minimized through translocation, which recent studies have shown to be an effective conservation tool

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(Field et al. 2007, Esque et al. 2010, Drake et al. 2012, Nussear et al. 2012, Farnsworth et al. 2015, Hinderle et al. 2015, Brand et al. 2016, Nafus et al. 2017). However, capturing, handling, and moving tortoises for the purposes of translocating them out of the Project boundary or moving them out of harm’s way may result in accidental death or injury if these methods are performed improperly, such as during extreme temperatures, or if individuals void their bladders and are not rehydrated. If multiple desert tortoises are handled by biologists without the use of appropriate protective measures and procedures, such as not re-using latex gloves, pathogens may be spread among individuals. To address these potential translocation adverse effects, the Project Translocation Plan will be drafted in accordance with the most recent Service guidance (Service 2018a). The Translocation Plan would be adaptively managed over time to facilitate a successful translocation effort. Because the Project Applicant would adhere to the most recent Service guidance in addition to implementing the conservation measures outlined above, we anticipate any mortality or injury to desert tortoises from activities associated with removing individuals from the Project boundary is unlikely.

We anticipate most, if not all, large desert tortoises would be captured and translocated to the Recipient Site or moved from harm’s way to outside of the Project boundary. Tortoises found on the perimeter tortoise exclusion fence line may be moved more than 984 feet, or moved outside of the Project boundary following coordination with the BLM, Service, and CDFW to eliminate the need for translocation to the Recipient Site outside of the animal’s current home range. Based on the survey results for the proposed Project site, we estimate that up to five large desert tortoises may be translocated to the Recipient Site.

Following the Service’s translocation guidance (Service 2018a), health assessments would be conducted on all tortoises to be translocated prior to being released. For tortoises that would be moved less than 984 feet, visual health assessments (without blood draw for ELISA testing) would be conducted. These tortoises may also be transmitted and monitored until construction activities within the immediate area are complete. For tortoises that would be moved greater than 984 feet to the Desert Sunlight Recipient Site, visual health assessments and blood draw for ELISA testing would be conducted.

While we cannot reasonably predict if an increase in disease prevalence within the Recipient Site’s resident population may occur due to translocation of up to five individuals, our analysis considers the following mitigating circumstances that are likely to reduce the magnitude of this risk:

a. The Applicant would use experienced biologists and approved handling techniques that are unlikely to result in substantially elevated stress levels in translocated animals.

b. Density-dependent stresses are unlikely to occur for reasons stated below.

c. Any animal that has clinical signs of disease or ELISA-positive blood test would not be translocated. The Service will be informed of the ELISA-positive test results and decide on an appropriate course of action.

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d. Long-term monitoring, if required, of translocated individuals would be implemented to determine the prevalence of disease transmission.

Because ELISA testing can result in false-positive results (i.e., an animal may test positive even though it is not a carrier of the disease), the potential exists for removal of healthy individuals from the translocated population due to concern over disease. These individuals would not be released into the wild and would no longer contribute to the environmental baseline for the action area. Because the applicant would coordinate with the Service and perform follow-up testing of ELISA-positive individuals, the potential for removing false-positive individuals from the translocated population is low. Consequently, we conclude that few, if any, desert tortoises would be incorrectly removed from the population due to false positive results. Similarly, some of the animals that test positive may have survived past disease infections and are healthy. Although our understanding of disease ecology is not complete and removal of these individuals from the wild population could eliminate individuals with superior fitness and genetic adaptations for surviving disease from the gene pool, the low numbers of tortoises involved likely would not be large enough to affect population genetics in the wild.

Apart from disease, translocation may also affect resident desert tortoises within the Recipient Site due to local increases in population densities. Desert tortoises from the Athos Project site would be moved into areas now supporting resident and translocated tortoises, which may result in increased competition for forage, especially during drought years. Increased tortoise densities may lead to increased inter-specific encounters and thereby increase the potential for spread of disease, potentially reducing the health of the overall population. Increased tortoise densities also may lead to increased competition for shelter sites and other limited resources or increased incidence of aggressive interactions between individuals (Saethre et al. 2003). Therefore, recipient sites must be sufficiently large to accommodate and maintain the resident and translocated desert tortoises (Service 2018a). Based on our estimate of the resident population in the Recipient Site as discussed in the Environmental Baseline section above, we estimate the population at the Recipient Site is below the recommended density threshold, so we do not anticipate that translocation of up to five large tortoises to the Recipient Site would impact the densities. The density of tortoise on the Recipient Site is currently two tortoises per square km (NER 2017), which is below the recommended density of four tortoises per square km listed in our translocation guidance (Service 2018a). However, if the density of resident tortoises at the Recipient Site is determined to be higher, then the size of the Recipient Site may need to be expanded to ensure tortoise density following translocation does not exceed the maximum allowable density. The best available information regarding density estimates and thresholds and methods for determining disease prevalence indicate that all five of the desert tortoises expected to be translocated from the Project area can be accommodated at the Recipient Site.

Following the Service’s translocation guidance (Service 2018a; see Figure 1), if a large tortoise is translocated, an equal number of translocated, resident, and control tortoises should be monitored for at least 5 years. Because we have determined a control site will not provide additional information on the benefits of translocation, we anticipate up to 10 tortoises (5 each from the Project site and Recipient Site) will carry transmitters and be regularly monitored and handled annually for health assessments and blood draw for ELISA testing (spring and fall).

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Some potential exists that handling of desert tortoises for the purposes of conducting health assessments and monitoring may cause elevated levels of stress that may render these animals more susceptible to disease or dehydration from loss of fluids, but because health assessments and monitoring will be conducted by a Service-approved biologist, we do not expect these activities to result in direct injury or death.

For tortoises that are moved out of harm’s way, we do not anticipate that moving tortoises less than 984 feet from the point of capture would result in death or injury because these individuals would be moved a relatively short distance and they would remain near or within their home range. Because these tortoises typically remain within their home range, we do not anticipate additional significant social or competitive impacts to resident tortoises within the 984-foot area.

During the initial weeks after translocation and over the period prior to establishment of a new home range, translocated desert tortoises may experience higher potential for mortality because they are moving through unfamiliar habitats and are less likely to have established cover sites that provide protection. Studies have documented various sources of mortality for translocated individuals, including predation, exposure, fire, disease, and flooding (Berry 1986, Nussear 2004, Field et al. 2007, U.S. Army 2010). Of these, predation appeared to be the primary mortality mechanism in most translocation studies (Field et al. 2007, Nussear 2004, U.S. Army 2010). These studies indicate that desert tortoise mortality is most likely to occur during the first year after release. After the first year, translocated individuals are more likely to establish new home ranges and mortality is likely to decrease.

Various studies have documented mortality rates of translocated desert tortoises ranging from 0 to 21.4 percent (Nussear 2004, Field et al. 2007). Recent studies in support of the Fort Irwin expansion (U.S. Army 2010) compared mortality rates associated with resident and translocated desert tortoise populations with that of control populations; preliminary results indicated translocation did not increase mortality above natural levels (Esque et al. 2010). Based on the available data and consistent with the findings in Esque et al. (2010), we conclude that mortality rates in the resident and translocated populations are unlikely to be elevated above levels that these populations would experience in the absence of translocation. Therefore, we anticipate that death or injury of few, if any, large tortoises will be the direct result of translocation.

Based on the pre-Project survey data (Ironwood 2019), we anticipate that few, if any, desert tortoises are likely to be moved during construction of the linear gen-tie lines. Because disturbance areas for this Project component are relatively small, moving desert tortoises immediately outside of the work area is not likely to displace them from their current home ranges. Consequently, any desert tortoises moved from the gen-tie corridor will continue to occupy familiar territory and use known shelter sites and are unlikely to suffer mortality associated with temporary removal from the disturbance areas. Furthermore, subsequent to completion of the gen-tie construction, desert tortoises will be able to return to these areas. Therefore, we do not anticipate that moving desert tortoises out of harm’s way of construction of linear features would result in death or injury because these individuals would remain near or within their existing home range, which is not likely to result in significant social or competitive impacts to resident desert tortoises in the area.

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Habitat Loss

Up to 3,440 acres of desert tortoise habitat would be directly impacted by construction of the Project. The permanent loss of habitat would adversely impact resident tortoises by eliminating available habitat. Within the action area, desert tortoise appear to be more prevalent in the southern portion of the Project area in undisturbed and recovering habitat near the Chuckwalla CHU, where at least one active burrow with sign and other tortoise burrows were found. When considering an area occupied by resident desert tortoises, we expect that home range size will vary with respect to location and year (Berry 1986), and this expansion and contraction may indicate changes in resource availability, reproductive opportunities, and social interaction (O’Connor et al. 1994). Over their lifetimes, individual desert tortoises may use, on average, more than 1.5 square miles of habitat (Service 1994a) and may make periodic movements of more than 4.3 miles at a time (Berry 1986). Therefore, we expect that if available, the lower quality habitat on the Project site would have been utilized again under more favorable weather conditions that produce forage or suitable cover.

To offset permanent loss of this tortoise habitat, the Applicant will provide compensatory habitat acquisition, restoration, and/or enhancement to benefit the desert tortoise within the Mojave Desert Tortoise Conservation Bank and within the Chuckwalla CHU and/or Chemehuevi CHU by connecting occupied habitat adjacent to critical habitat, and/or other core habitats in the Colorado Desert Recovery Unit (CM 12). Other potential areas for acquisition, restoration, and/or enhancement within the Colorado Desert Recovery Unit include along the I-10 corridor between Desert Center and Cactus City. Habitat compensation would be at a 5:1 ratio for desert dry wash woodland habitat and desert tortoise critical habitat on BLM-administered lands; a 3:1 ratio for desert dry wash woodland habitat on private lands; and a 0.5:1 ratio for Sonoran creosote bush scrub habitat on private lands. The total estimated compensation acreage, based on habitat suitability for desert tortoise, is 470.8 acres, which includes a minimum of 25 acres in desert tortoise critical habitat (see Table 1 above). The final compensatory acreages will depend on the final layout and actual disturbance. These future conservation lands will be conserved and managed in perpetuity for tortoises.

To minimize the effects of habitat loss, the Applicant will incorporate a wildlife-friendly fence that allows tortoises to access the Project area during O&M (CM 3) and implement low-impact vegetation management to minimize interference with tortoise movement and activity during O&M (CM 4). The Project site supports suitable tortoise habitat based on vegetative composition and structure, substrate conditions, and the presence of tortoise burrows and active sign. As a result, desert tortoises are likely to occur in low densities. Because individuals are known to move across extensive tracts of marginal habitats (Edwards et al. 2004b; Averill-Murray, R.C. and Averill-Murray 2005), we anticipate that low numbers of desert tortoises occasionally use the entire Project site in such a manner. The ongoing low impact vegetation management during O&M may further marginalize the habitat onsite; however the wildlife-friendly fence will provide for connectivity opportunities between larger blocks of suitable habitat and populations.

We expect approximately 0.07 percent of the modeled suitable tortoise habitat within the Colorado Desert Recovery Unit and approximately 0.01 percent of modeled suitable tortoise

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habitat within the Chuckwalla CHU would be lost by constructing this Project. Because of the location, we do not expect this loss of habitat to regionally impact population connectivity. We evaluated the habitat loss in regard to regional connectivity by looking at various models identifying priority linkages or connectivity corridors for desert tortoise (see Penrod et al. 2012). The Service’s Desert Tortoise Recovery Office modeled landscape-scale connectivity and identified priority habitat linkages between and among tortoise conservation areas in the Sonoran and Mojave deserts (Averill-Murray et al. 2013). Although the landscape scale of these modeling efforts can overlook site-specific conditions at a more local scale, these modeling results did not indicate a regional-scale linkage across the Chuckwalla Valley in the action area.

Indirect Effects

Human activities may provide food in the form of trash and litter or water that attracts tortoise predators such as the common raven. Ravens capitalize on human encroachment and expand into areas where they were previously absent or in low abundance. Ravens habituate to human activities and are subsidized by the food and water, as well as roosting and nesting resources, that are introduced or augmented by human encroachment. The nearby Blythe airport, electrical transmission lines, and other urban areas provide food, water features, and roosting/nesting substrates (buildings, signs, lamps, and utility poles) that otherwise would be unavailable. Small mammal, fox, coyote, rabbit, lizard, snake, and tortoise road kill along I-10 and other roads provide additional attractants and subsidies for opportunistic predators/scavengers. Subsidized water sources (i.e., artificial ponds) associated with agriculture in the action area also provides a raven/predator attractant. Road-killed wildlife would increase with project construction and O&M traffic, further exacerbating the raven/predator attractions and increasing tortoise predation levels. Facility infrastructure such as electrical transmission lines, fence lines, buildings, and other structures on the Project site would also provide perching, roosting, and nesting opportunities for ravens.

Common ravens are natural predators of small desert tortoises. Natural predation rates by ravens may be altered or increased when natural habitats are disturbed or modified. Common raven populations in some areas of the Mojave Desert have increased 1,500 percent from 1968 to 1988 in response to expanding human use of the desert (Boarman 2002). Since ravens were scarce in the Mojave Desert prior to 1940, the existing level of raven predation on small tortoises is considered an unnatural occurrence (BLM 1990). We expect that such increases in raven occurrences in the Mojave Desert are similarly indicative of the Sonoran Desert where human- related disturbances are increasing. Canids, including coyotes and desert kit foxes, are also present within the project site. Coyotes that currently reside within the Project site are likely subsidized by the existing man-made pond and adjacent date palm farm. Displacement of the local coyote population as a result of the Project may introduce indirect pressure in the form of predation on nearby tortoise populations.

To minimize the generation of food subsidies that may attract common ravens during construction and O&M-related activities, all trash materials would be disposed of in self-closing containers and removed to prevent the attraction of tortoise predators to the Project site, and road-killed animals would be immediately removed and disposed (CM 7 and CM 13). The 53

Applicant would minimize water subsidies by ensuring water does not pool or pond (CM 7 and CM 13). To reduce the potential predation of tortoises by raptors, gen-tie lines will be designed to discourage perching (CM 8). Also, increases in raven abundance in the action area would be minimized by measures outlined in the Subsidized Predator Standards (CM 13). To further minimize indirect and cumulative impacts of raven predation on tortoises associated with the proposed Project, the Applicant would contribute to the Service’s Regional Raven Management Program developed to address raven predation on tortoises at a population scale in the California desert region as a conservation action for desert tortoise.

In addition, desert tortoise behavior may be impacted by increased noise levels and the presence of full-time facility lighting during construction and operation of the facility over a 40-year period. While we do not have data demonstrating the effect of increased noise levels and artificial lighting to desert tortoise behavior, measures proposed to minimize these potential impacts on other sensitive species (CM 7) would also benefit tortoises.

Native shrubs and annual plants used by tortoises for sheltering and feeding adjacent to the Project area also may be adversely affected by introduced invasive nonnative plants (or weeds) that respond positively to ground disturbing activities. Project equipment may transport or spread invasive nonnative plants in the action area where they may become established. Additionally, the potential introduction of invasive plants may lead to increased wildfire risk (Brooks et al. 2003). However, potential degradation of habitat due to spread of invasive nonnative plants would be avoided and minimized by measures outlined in the Integrated Weed Management Plan designed to prevent the introduction of any new weeds and the spread of existing weeds as a result of Project construction and O&M (CM 10).

The proposed project may also create a barrier to long-term tortoise movement between areas on either side of I-10. For gene flow to occur across the range, populations of tortoises need to be connected by occupied areas of habitat that contain sustainable numbers of tortoises. Desert tortoise distribution and population genetic studies provide evidence that individual tortoises breed with their neighbors and those tortoises breed with their neighbors on the other side in a continuum (Service 2011a). Construction of the Project would have the potential to disrupt local occupancy and movement patterns; however, the Applicant will offset impacts to connectivity by incorporating the wildlife-friendly fence and low impact vegetation management during O&M to allow for tortoise movement through the Project. Additionally, the adjacent underpasses underneath I-10 would remain open to tortoise movement. Therefore, the Project would minimize the reduction of the amount of available tortoise habitat and opportunities for habitat connectivity. The Applicant would also provide compensatory habitat acquisition, restoration and/or enhancement to benefit the desert tortoise habitat and connectivity (CM 12).

Desert Tortoise Critical Habitat

Approximately 25 acres of the 1,020,600 acres (0.002 percent) of designated critical habitat in the Chuckwalla CHU would be permanently impacted by the Project. As discussed in the Environmental Baseline section above, at least five of the six PCEs are met where the CHU overlaps with the Project action area. The presence of tortoise sign (e.g., burrows, scat, and 54 tracks) within and adjacent to critical habitat on the Project provides evidence that the area contains the PCEs necessary for nesting and foraging, and therefore, occupancy and dispersal/movement of individuals and gene flow.

Of the five PCEs on the Project site, dispersal and gene flow is most important from a regional conservation perspective. The portion of the Project within critical habitat contains undisturbed desert dry wash woodland and Sonoran creosote bush scrub habitat and is adjacent to I-10 underpasses that are conducive to tortoise movement. Desert tortoise genetic diversity occurs in small steps from one end of the range to the other. The distribution of desert tortoises is relatively continuous across the species’ range, broken only by major topographic barriers, such as major mountain ranges and the Colorado River (Nussear et al. 2009). This suggests that gene flow generally occurs according to a continuous-distribution model, as opposed to a metapopulation or stepping-stone model, where individuals move from one patch of suitable habitat across less suitable or non-habitat to another patch of suitable habitat. Individual tortoises can make long-distance movements, and this likely contributes to a limited amount of gene flow. As discussed in the revised recovery plan (Service 2011a), the underpinning of the continuous- distribution model, and the evidence from desert tortoise population genetic studies and distribution, is that individual tortoises breed with their neighbors, those tortoises breed with their neighbors on the other side, and so on. Thus, for gene flow to reliably extend across the range, populations of tortoises must be connected across the range by overlapping home ranges. As such, functional corridors need to allow continuously overlapping home ranges along the length of the corridor.

The impacts associated with the gen-tie lines (segments 3 and 4) within critical habitat are expected to be minimal due to adjacent existing transmission lines and shared access roads and thus are not likely to appreciably diminish the value of the PCEs essential to the species’ recovery within the Chuckwalla CHU. As described in CM 12, the Applicant will offset impacts to desert tortoise critical habitat by providing compensatory habitat acquisition, restoration, and/or enhancement at a 5:1 ratio (minimum of 25 acres) to benefit the desert tortoise within the Chuckwalla CHU. The Applicant will also incorporate a wildlife-friendly fence that allows tortoises to access the Project area during O&M (CM 3) and implement low-impact vegetation management to minimize interference with tortoise movement and activity during O&M (CM 4). Therefore, the Project would maintain the habitat base for supporting viable tortoise populations in critical habitat and prevent degradation of the environmental baseline on BLM lands in the highest value habitat areas that provide the primary focus for recovery efforts. We conclude that the proposed Project is not likely to impair or preclude the capacity of critical habitat in the action area to serve its intended conservation function to an extent that appreciably diminishes the range-wide value of critical habitat for the conservation of the desert tortoise.

Effect on Recovery

Per section 2(b) of the Act, the primary purposes of the Act are to provide a means whereby the ecosystems upon which listed species depend may be conserved, and to provide a program for the recovery of listed species. Per section 2(c), Congress established a policy requiring all Federal agencies to use their authorities in seeking to recover listed species in furtherance of the 55 purposes of the Act. Consistent with these purposes and Congressional policy, sections 3(5), 4(f), and 7(a)(1) of the Act, the implementing regulations to section 7(a)(2) at 50 CFR § 402.02and related preamble at 51 FR 19926 (June 3, 1986) generally mandate Federal agencies to further the survival and recovery of listed species in the use of their authorities. Our analysis below assesses whether the proposed action adequately offsets its adverse effects to the environmental baseline to the desert tortoise, and the extent to which the proposed action would cause significant impairment of recovery efforts or adversely affect the species chances for survival to the point that recovery is not attainable (51 FR 19926).

The Project Applicant would implement numerous measures to avoid, minimize, and offset the adverse effects to habitat and the relatively few tortoises in the Project area (see Conservation Measures section above). Overall, we expect that five or fewer large desert tortoises would be injured or killed during construction and O&M during the life of the solar facility, and that a relatively small but unquantifiable number of small tortoises and eggs may be moved or destroyed during construction and O&M. We expect that most large tortoises encountered during work activities would be either moved short distances out of harm’s way or translocated. Because the BLM and Project Applicant would implement a variety of measures to reduce stress to these animals, we do not anticipate that injury or mortality would result from the handling and relocation of these animals.

Based on the results of studies discussed above, most of the large tortoises moved from the Project area likely would continue to survive and reproduce at the location where they are moved (i.e., in adjacent habitat or the Recipient Site). Consequently, we anticipate the Project would not appreciably diminish the reproductive capacity of the species, particularly in light of the relatively few tortoises that would be affected.

The distribution of the desert tortoise would be minimally reduced because the proposed Project would result in loss of a small percentage (0.07 percent)5 of the tortoise habitat in the Colorado Desert Recovery Unit and a small percentage (0.01 percent)6 of tortoise habitat in the Chuckwalla CHU, which does not constitute a substantial portion of the recovery unit or the CHU. Given the location of the Project in an area outside of higher quality habitat, we do not anticipate the amount of habitat to be lost because of Project activities would reduce the distribution of the tortoise to an appreciable degree. We do not anticipate that loss of habitat in the Project area would substantially reduce the ability of the tortoise to survive and recover in the wild because the recovery plan (Service 2011a) and final rule for designation of critical habitat for the species (Service 1994b) primarily focuses long-term conservation priorities in higher value habitat areas. The proposed acquisition and/or restoration/enhancement of tortoise habitat would benefit tortoise habitat connectivity between known populations of tortoises and tortoises within designated critical habitat, and/or or other preserve lands in the Colorado Desert Recovery

5 Based on 4,948,900 acres of modeled desert tortoise habitat within the Colorado Desert Recovery Unit (Service 2010a) and the total Project footprint of 3,440 acres. 6 Based on 187,413 acres of modeled desert tortoise habitat within the Chuckwalla CHU (Service 2010a) and the total Project footprint located within the Chuckwalla CHU of 25 acres. 56

Unit. Therefore, we conclude that the proposed action is not likely to cause significant impairment of recovery efforts or adversely affect the desert tortoise’s prospects for recovery.

CUMULATIVE EFFECTS

Cumulative effects include the effects of future State, local, private, or certain tribal actions that are reasonably certain to occur in the action area considered in this biological opinion. Future Federal actions that are unrelated to the proposed action are not considered in this section because they require separate consultation pursuant to section 7 of the Act. The Service has no information regarding any future State, local, private, or certain tribal actions that are reasonably certain to occur in the action area.

CONCLUSION

After reviewing the current status, environmental baseline for the action area, effects of the proposed action, and cumulative effects of the desert tortoise, it is the Service’s biological opinion that the proposed action is not likely to jeopardize the continued existence of the desert tortoise or destroy or adversely modify designated critical habitat. We base this decision on the following:

1. The Applicant will implement numerous measures to ensure that most tortoises are moved out of the Project footprint and injury and death of tortoises is minimized (e.g., clearance surveys, exclusion fencing, relocation, translocation, and employing authorized tortoise biologists).

2. The Applicant will implement measures to reduce the potential for increased predation by common ravens, both in the vicinity of the Project footprint and regionally, and to reduce the spread of invasive nonnative plants in the Project area.

3. Given the small number of tortoises potentially affected by the Project, we have no information to indicate that construction and O&M of the Project would appreciably reduce the tortoise population levels in the Colorado Desert Recovery Unit.

4. Few, if any, tortoises are likely to be injured and killed as a result of relocation or translocation.

5. Although the proposed Project would reduce the amount of available tortoise habitat and thereby result in a loss of habitat connectivity, habitat would remain to the west and east of the proposed Project to provide connectivity of tortoises in the long term.

6. The Applicant will implement a wildlife-friendly fence allowing desert tortoise movement through the proposed Project during O&M, facilitating connectivity of tortoises in the long term.

7. Relocation of some tortoises into habitat adjacent to the project area and translocation of some tortoises to the Recipient Site will increase tortoise numbers in those areas. 57

Successful translocation would minimize adverse effects by allowing those tortoises to remain in the population and contribute towards recovery of the species.

8. Compensation requirements of acquisition and/or restoration/enhancement through the BLM and CDFW will result in an increase in the quantity and quality of habitat managed for tortoise conservation.

9. With implementation of the conservation measures, the impacts of the proposed project are expected to be effectively minimized and offset, and are not likely to diminish appreciably the conservation role and function of designated critical habitat for desert tortoise in the action area or the species’ range.

INCIDENTAL TAKE STATEMENT

Section 9 of the Act and Federal regulation pursuant to section 4(d) of the Act prohibit the take of endangered and threatened species, respectively, without special exemption. Take is defined as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect, or attempt to engage in any such conduct. Harm is further defined to include significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering. Harass is defined as intentional or negligent actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavior patterns which include, but are not limited to, breeding, feeding, or sheltering. Incidental take is defined as take that is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. Under the terms of Section 7(b)(4) and 7(o)(2) of the Act, taking that is incidental to and not intended as part of the proposed action is not considered to be prohibited taking under the Act provided that such taking is in compliance with the terms and conditions of this incidental take statement.

The measures described below are non-discretionary and the BLM must include these measures in their authorizations of the proposed action that it provides to IP Athos for the exemption in section 7(o)(2) to apply. If the BLM fails to implement the terms and conditions, the protective coverage of section 7(o)(2) may lapse. To monitor the impact of the incidental take, the BLM must report the progress of the action and its impact on the species to the Service as specified in the incidental take statement [50 CFR 402.14(i)(3)].

AMOUNT AND EXTENT OF TAKE

We anticipate that the number of desert tortoises that may be incidentally taken would be low due to the small number of individuals estimated to occur within the Project area and the anticipated effectiveness of conservation measures described as part of the proposed action. However, quantifying the precise number of individuals that may be incidentally taken is not possible because this species is cryptically colored to avoid predation, and spends the majority of its life inhabiting burrows to avoid environmental extremes or predation, making the observation or detection of death or injury difficult. In addition, population numbers fluctuate in response to weather patterns and other biotic and abiotic factors, and population levels and the distribution of individual animals may have changed since the species surveys were completed and are 58 anticipated to continue changing over the 40-year life of the Project. As a result, finding dead or injured individuals within the Project area is difficult as individuals may be crushed or buried underground in burrows that were not found or inspected, and otherwise hard to recognize or detect. The number of tortoise eggs and small individuals is even more difficult to quantify. Because eggs and small tortoises are almost never found during clearance surveys, we assume virtually all these early life forms will be killed or injured by construction and O&M activities if they occur within the Project footprint.

While we cannot provide the precise number of desert tortoises that may be taken, we have estimated the number of large tortoises (greater than 180 mm MCL) in the Project area based on the best available information. Based on this estimate, we have established take thresholds that, if exceeded, will trigger reinitiation of consultation.

Take of desert tortoises is anticipated and exempted as follows:

1. The loss of up to 3,440 acres of habitat from construction and O&M-related activities may result in accidental death or injury of tortoise eggs and small and large tortoises from crushing, trampling, or burial. If the Project impacts more than this acreage of tortoise habitat, the take threshold will be exceeded.

2. As discussed in the “Environmental Baseline” section above, we estimate that up to five large tortoises may occupy the Project site. While we cannot quantify the precise numbers of tortoises that may be killed or injured as a result of construction or O&M activities for the reasons discussed above, we anticipate the number of large tortoises that may be killed or injured will be low because no tortoises were found in the Project survey area during surveys, which likely indicates a small population. Therefore, using our best professional judgment in light of best available information, we anticipate that construction of the Project will result in the incidental take of five large desert tortoises.

3. Because we do not want to limit the ability of the Service-approved qualified biologist to avoid and minimize the direct injury or death of tortoises by relocating and translocating tortoises found during preconstruction clearance surveys or O&M activities, all take in the form of trapping, capture, or collection for the purposes of relocation from harm’s way or translocation to a recipient site is exempted for any eggs and small and large tortoises found during clearance surveys, monitoring activities, O&M activities, or other incidental observations, subject to the reasonable and prudent measures and terms and conditions below. Because the capture or collection, relocation and translocation, and release of desert tortoises will be conducted by a Service-approved biologist, we do not expect these activities to result in direct injury or death of any relocated or translocated tortoises. Therefore, if any tortoises are directly injured or killed during relocation or translocation, the take threshold will be exceeded.

4. Take, in the form of capture or collection, of up to ten large tortoises (up to five each from the Project footprint and Recipient Site) may result from attaching transmitters to tortoises and monitoring their activities. Although transmittered tortoises may be 59

captured multiple times over the course of the post-translocation monitoring effort, we do not anticipate injury or mortality of these individuals due to post-translocation monitoring. However, if any tortoises are directly injured or killed during monitoring activities, the take threshold will be exceeded.

5. Take, in the form of capture or collection, of up to ten large tortoises (up to five each from the Project footprint and Recipient Site) may result from blood draw for ELISA testing to assess disease prevalence. Although such an invasive procedure presents some likelihood that individuals could be injured or killed, we do not anticipate that blood draw will result in the death or injury of any individuals because blood draw will be conducted by Service-approved biologists, following Service-approved methods. If any tortoises are directly injured or killed as a result of blood draw, the take threshold will be exceeded. This provision is included to ensure that the Service and BLM have the flexibility to collect samples if deemed necessary.

IMPACT OF THE INCIDENTAL TAKING OF THE SPECIES

In the accompanying biological opinion, the Service determined that these levels of anticipated take are not likely to result in jeopardy of the desert tortoise.

REASONABLE AND PRUDENT MEASURES

The BLM and Applicant are implementing conservation measures for this project as part of the proposed action to minimize the taking of desert tortoises. The Service’s evaluation in the biological opinion includes consideration of the conservation measures developed by the BLM and Applicant to reduce the adverse effects of the proposed project on this species. Any subsequent changes in the conservation measures proposed by BLM or Applicant or in the conditions under which these activities will occur may constitute a modification of the proposed action and may warrant reinitiation of formal consultation, as specified at 50 CFR § 402.16. The reasonable and prudent measure identified below is intended to supplement the conservation measures that were proposed by BLM and Applicant as part of the proposed action, and are necessary and appropriate to minimize the impact of the taking on desert tortoises.

a. The BLM and Applicant shall monitor and report the level of incidental take of desert tortoises to the Service throughout the life of the project and report on the effectiveness of the project minimization measures to reduce the impact of incidental take of tortoises.

TERMS AND CONDITIONS

To be exempt from the prohibitions of section 9 of the Act, BLM and Applicant, and their agents and contractors, must comply with the following terms and conditions, which implement the reasonable and prudent measure described above and are intended to minimize the impact of the incidental taking. These terms and conditions are non-discretionary (see section 7(o)(2)).

The following term and condition implements the reasonable and prudent measure above. 60

The Applicant shall prepare and provide to the Service and BLM an annual report by January 31 of each year of the Project. The annual report shall document but not be limited to the following:

1. Compliance with project specifications and conservation measures outlined in this biological opinion as they relate to desert tortoises.

2. Any activities determined by the qualified biologist or biological monitors to be out of compliance with project-specifications and conservation measures outlined in this biological opinion and the corrective measures implemented to bring the Project back into compliance.

3. The total amount and location of desert tortoise habitat disturbed by construction and O&M activities during the reporting year.

4. The number and location of desert tortoises killed or injured during project construction or O&M activities during the reporting year and a description of the circumstances leading to the death or injury of individuals of the species.

5. Activities conducted during the reporting year. These activities include but are not limited to: (1) the number and location of desert tortoises located during project activities and relocated or translocated during preconstruction; (2) construction, and O&M activities during the reporting year; (3) a detailed description of the relocation and translocation activities; (4) a detailed description of monitoring activities conducted at the Recipient Site during the reporting year; and (5) a detailed description of the desert tortoise monitoring and avoidance program activities during O&M associated with the wildlife-friendly fence.

a. If more than five adult desert tortoises, or any eggs or small tortoises, are found within the Project footprint, the qualified biologist shall immediately report the observation to the Service, prior to any subsequent relocation or translocation activities. The Service will review the information to determine its consistency with the effects analysis above and whether relocation or translocation of additional desert tortoises would benefit their survival, or whether reinitiation of consultation is warranted.

6. Activities conducted under the Subsidized Predators Standards (CM 13) during the reporting year, including but not limited to the results of raven management actions such as nest monitoring and removal of raven nests and offending ravens.

7. Activities conducted under the Integrated Weed Management Plan (CM 10), including but not limited to invasive plant species control activities conducted during construction or O&M activities in the Project area during the reporting year and the status of control activities conducted the previous year. 61

8. Activities conducted under the Vegetation Resources Management Plan (CM 11), including but not limited to revegetation activities, vegetation treatments, and other long-term vegetation management actions conducted during O&M for the reporting year.

Disposition of Sick, Injured, or Dead Specimens

Pursuant to 50 CFR § 402.14(i)(1)(v), the BLM must notify the Service immediately at 760-322- 2070 (Palm Spring Fish and Wildlife Office) if any desert tortoises are found sick, injured, or dead in the action area. Immediate notification means verbal (if possible) and written notice within 1 workday, and must include the date, time, location, and photograph of the carcass, and any other pertinent information. Care must be taken in handling sick or injured individuals to ensure effective treatment, and care and in handling dead specimens to preserve biological material in the best possible state.

The BLM must also notify the Service immediately at 760-320-2070 if any endangered or threatened species not addressed in this biological opinion is found dead or injured in the Project footprint during the life of the project. The same reporting requirements also shall pertain to any healthy individual(s) of any threatened or endangered species found in the action area and handled to remove the animal to a more secure location. Refer to the “Terms and Conditions” section above for details on reporting procedures.

CONSERVATION RECOMMENDATIONS

Section 7(a)(1) of the Act directs Federal agencies to use their authorities to further the purposes of the Act by carrying out conservation programs for the benefit of endangered and threatened species. Conservation recommendations are discretionary agency activities to minimize or avoid adverse effects of a proposed action on listed species or critical habitat, to help implement recovery plans, or to develop information.

1. We recommend that the BLM work with the Applicant and the Service to ensure optimal design of the wildlife-friendly fence for desert tortoise, such as the size of the lower fence margin and the ground, and spacing and location of gap openings if a continuous lower fence margin is not used. The Service recommends to install the wildlife-friendly fence with a minimum 8- to 10-inch ground gap to better accommodate desert tortoises of all sizes. The Applicant is currently proposing a 6- to 8-inch gap between the lower fence margin and the ground. We also recommend that routine maintenance is conducted to keep the lower margin or gap openings clear of debris.

2. We recommend that the BLM work with the Applicant and the Service to deploy unique identification tags (e.g., color markers and/or transmitters) on desert tortoises found moving through and using the Project site during the O&M phase to determine the effectiveness of the wildlife-friendly fence design for allowing movement (and thus gene flow) among populations and enhancing conservation efforts. 62

3. We recommend that the BLM work with the Applicant and the Service to monitor desert tortoise frequency of use of the wildlife-friendly fence using digital cameras placed at regular intervals or within/adjacent to wildlife movement habitat features such as drainages and natural vegetation communities.

4. We recommend that the BLM work with the Applicant and the Service to restore hydrological flows through the northern Project parcel A by removing existing berms created when this parcel was an agricultural facility. Removal of existing berms would benefit the ecological function of the Chuckwalla ACEC which abuts parcel A.

REINITIATION NOTICE

This concludes formal consultation on the proposed Project for the desert tortoise. As provided in 50 CFR § 402.16, reinitiation of formal consultation is required where discretionary Federal involvement or control over the action has been retained (or is authorized by law) and if: (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the agency action that may affect listed species or critical habitat in a manner or to an extent not considered in this opinion; (3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action.

If you have any questions regarding this document, please contact Noelle Ronan of the Palm Springs Fish and Wildlife Office at (760-322-2070, extension 407; or [email protected]). 63

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Unpublished Reports

[Service] U.S. Fish and Wildlife Service. 2013-2015. Documented patterns of mortality to Yuma Ridgway’s rail and willow flycatcher from energy infrastructure in the California desert. Unpublished data.