AIR PERMITS OFFICE 

Shirley F. Rivera 

AIR-3 

DATE: October 22, 2009 

TO: Avenal Energy Project File

SUBJECT: 8_AEP (Avenal): Compilation of Draft BO Comments for USFWS

The following table presents a summary of comments on the USFWS’s DRAFT Biological Opinion for 

the Avenal Energy Project, including comments provided to USEPA by the project applicant that USEPA 

is forwarding to USFWS (which are designated accordingly). Referenced material includes: 

• USFWS letter transmittal (from USFWS Susan Moore to USEPA Gerardo Rios) dated July 1, 

2009, “Draft Biological Opinion on the Proposed Avenal Power Center, LLC Avenal Energy 

Power Plant Project” 

• June 2009 California Energy Commission (CEC) Final Staff Assessment (FSA)1– specifically 

the section which addresses Biological Resources (pages 4.2-1 through 4.2-35) 

The column headers in the attached table represent the following: 

• Item: Notation for ease of reference. 

• Page(s): Page number of the USFWS letter transmittal 

• Section/Description: Section title and/or description of comment 

• Comment: Comment and context, where applicable 

• Requested Action / Consideration: Based on comment, requested action for proposed 

revision and/or consideration by USFWS to develop the final Biological Opinion 

 

1 CEC FSA on web: http://www.energy.ca.gov/2009publications/CEC-700-2009-001/CEC-700-2009-001-FSA.PDF 
AIR PERMITS OFFICE 

Shirley F. Rivera 

AIR-3 

Page TYPOS

2 Header correction – Geraldo Gerardo Rios

3 paragraphs 1 & 3 - Should be Tracey Gilliland

9 Measure 11 -- "affecting" should read "affect"

31 Term and Condition 1.c -- "personal" should read "personnel"

31 last line -- in item 3, "manor" should read "manner," and on the next line "than" should read "then"

32-33 Update bullet numbering - goes from item 1 to items 3, 4, 5

Item Page(s) Section/ 

Description 

Comment Requested Action / Consideration

A Page 3 Consultation 

History Timeline 

• Clarify 

The consultation history does not include August 15, 2008-

Avenal Power Center, LLC's request for meeting with 

USFWS or the date EPA requested a draft Biological 

Opinion (November 28, 2008) 

UPDATE: Please add two additional items to 

consultation history - 

• August 15, 2008: Avenal Power Center, LLC’s 

requests meeting with USFWS. 

• November 28, 2008: U.S. EPA requests draft 

biological opinion. 

B Page 4 Biological Opinion

- Description of 

Proposed Action 

Area 

- Action Area and 

Environmental 

Setting

• Clarify 

FORWARDING Avenal comment

Paragraph 3: The following statement – 

"The action area is the kit fox corridor along the western 

edge of the San Joaquin Valley in Kings County. This 

encompasses the home range of a kit fox pair that might 

forage on the site, or a juvenile that might disperse along 

the Canal." 

– seems unsubstantiated as they later state on page 25 that a 

comprehensive survey has not been completed for western 

Kings County. 

Also, no kit fox sitings have occurred on the site, the closest 

siting was approximately 1/2 mile away within the Canal 

ROW, and there does not appear to be a reference anywhere 

else in the document to the date and location of this kit fox 

pair. 

CONSIDER: Consider what further clarification or 

revision may be needed for this section for 

description of the action area. 

 
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Item Page(s) Section/ 

Description 

Comment Requested Action / Consideration

C Page 5 Biological Opinion

- Description of 

Proposed Action 

Area 

- Project 

Description

• Clarify 

FORWARDING Avenal comment

Paragraph 1 

The first sentence describes the purpose for construction of 

the power plant 

"to provide additional energy to the power grid during 

peak electric consumption." 

This project would not necessarily only provide power to the 

grid during peak electric consumption. It would provide 

power when it was called to run by the CAISO. 

UPDATE: Please revise this to state the following:

“to provide additional energy to the power grid 

during peak for electricity electric consumption."

D Page 5 Biological Opinion

- Description of 

Proposed Action 

Area 

- Project 

Description

- Construction 

Details 

• CEC FSA 

Consistency 

FORWARDING Avenal comment

Paragraph 3 

it currently says 

"All temporary disturbed areas will be restored at or 

before the first 24 months of construction." 

AEP has agreed with CEC that no temporary disturbance 

will occur for more than 24 months. We'd appreciate the 

clarification to be consistent with the language in the CEC's 

Final Staff Assessment (FSA). 

UPDATE: Review the CEC’s FSA page 4.2-10 for 

discussion of Construction Laydown, Parking Area, 

and Power Plant Site as part of “Construction 

Impacts and Mitigation” section for clarification of 

intent. 

Suggested revision as follows: 

"The duration of temporary construction 

disturbance will be less than 24 months. All 

temporary disturbed areas will be restored at or 

before the within the first 24 months of an area

first being disturbed. ..."
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Item Page(s) Section/ 

Description 

Comment Requested Action / Consideration

E Page 9 Measure 8

Litter control 

• CEC FSA 

Consistency

FORWARDING Avenal comment

Currently reads 

"... trash containers shall be removed from the 

construction area at the end of each working day." 

We would prefer it to be in line with the CEC FSA wording 

which is that trash will be removed from the site once a 

week. We would recommend keeping the first two sentences 

of this item and then changing the third. 

UPDATE: Revise from daily to weekly. Review the 

CEC’s FSA page 4.2-29 for BIO-8 (Mitigation 

Management to Avoid Harassment or Harm), 

Condition 2 that states: 

“2. Make certain all food-related trash is 

disposed of in closed containers and 

removed at least once a week from the 

project site;” 

Suggested revision to USFWS BO Measure 8 as 

follows: 

“8) A litter control program ... The trash 

containers shall be removed from the 

construction area at the end of working day

at least once a week from the project site. 

F Page 10 Measure 13

Rodenticides and 

pesticides use 

• Clarify 

• CEC FSA 

Consistency 

a. Measure 13 is vague. It first says that pesticide and 

rodenticide use is "restricted" in project areas, but then 

goes on to indicate that pesticides should be applied in 

accordance with various regulatory requirements, 

including restrictions mandated by various regulatory 

agencies, and by "other State and Federal legislation," 

"as well as additional project related restrictions 

deemed necessary by the Service." 

It's not clear what this means; the document should 

spell out exactly what is needed to avoid/minimize 

potential effects associated with pesticide and 

rodenticide use. If the Service's intent is to require its 

approval of the use of these products on a case-by-case 

basis prior to their application, the document should set 

forth the procedure by which such approval should be 

sought. 

b. Also, if language is meant to be mandatory, we suggest 

using the term “must” or “shall” rather than “should.” 

CONSIDER: USFWS BO Measure 13 reads 

identical to the CEC FSA BIO-8, Condition 7 (p. 4.2-

29). The CEC’s verification for compliance with this 

requirement refers to the BRMIMP, i.e., CEC FSA, 

pp. 4.2-25 through 4.2-27 presents BIO-6 (Biological 

Resources Mitigation Implementation and 

Monitoring Plan). 

Suggested revision of USFWS BO Measure 13 to 

replace “should” with “must” or “shal”; also suggest 

specifying procedure by which the Service would 

identify/approve additional project related 

restrictions, or deleting portion of paragraph 13 

related to those additional restrictions. 

“Use of rodenticides and pesticides ... All uses 

of such compounds should must observe label 

and other restrictions ... by the Service.” 
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Item Page(s) Section/ 

Description 

Comment Requested Action / Consideration

G Page 10 Measure 16

Capping pipes to 

prevent fox entry 

• Clarify

• CEC FSA 

Consistency

• Possible 

additional 

discussion

FORWARDING Avenal comment

Would there be another option other than capping all pipes if 

they will be left for more than 2 nights? This seems 

excessive especially since a monitor is still required to check 

each pipe even through they are capped. 

CONSIDER (Possible additional discussion): 

USFWS BO Measure 16 requires capping of 

structures stored at the construction site for one or 

more overnight periods. Meanwhile, on a daily basis, 

CEC’s FSA page 4.2-23 for BIO-2 (Designated 

Biologist Duties), Condition 5 states: 

“Inspect active construction areas where 

animals may have become trapped prior to 

construction commencing each day. At the end 

of the day, inspect for installation of structures 

that prevent entrapment or allow escape during 

periods of construction inactivity. Periodically 

inspect areas with high vehicle activity (i.e., 

parking lots) for animal in harm’s way.” 

Suggest further discussion with USFWS to consider 

alternatives to capping all pipes if left for more than 

2 nights. Service suggested that without capping 

entrapment may lead to project delays. 

H Pages 

10-11 

Measures (19, 17) 

to conserve kit fox 

and their dens 

- Measure 19 

- Measure 17 and 

19 

- Measure 19(d)(i) 

• Clarify 

c. -- use of phrase "when applicable" in the first line 

makes it unclear when requirements of this measure 

apply. Recommend striking this language. 

-- Measures 17 and 19 should be combined for clarity 

as they overlap. 

-- Measure 19(d)(i): phrase "project construction shall 

cease and resume between August 1 and November 30" 

is unclear and should be reworded for clarity. 

CONSIDER: In addition to combining Measures 17 

and 19, which overlap with respect to addressing 

preconstruction activities/surveys, suggest USFWS 

BO Measure 19 be revised as follows: 

“The following measures shall also be 

implemented when applicable to conserve kit 

foxes ...” 

Similarly, for clarity, revise Measure 19(d)(i) for the 

intent to cease project construction by August 1 and 

resume November 30. 
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Item Page(s) Section/ 

Description 

Comment Requested Action / Consideration

I Page 11 Measure 

19(d)(ii)(4) to 

conserve kit fox and 

their dens 

- 1,000 foot buffer 

• Revision 

request by 

Applicant

• Possible 

additional 

discussion

FORWARDING Avenal comment

Although based on the biological opinion the chances are 

very low that the Project encounters a situation where dens 

are identified on site, this item could essentially stop 

construction activities on the site if an occupied natal den is 

found and a 1000 foot buffer is required. 

Is this a reasonable buffer zone or could appropriate 

fencing/conditions/etc be established to reduce this 1000 

foot buffer requirement? (i.e. 500 foot buffer identified in 

FSA condition BIO-12, 2 for burrowing owls) 

CONSIDER (Possible additional discussion): 

USFWS BO Measure 19(d)(ii)(4) references a 1,000 

foot buffer. The Applicant requests consideration of a 

revision as follows: 

“Between December 1 to July 31, project 

activities within 1000 500 feet of occupied natal 

dens are prohibited. The 1000 500 foot buffer 

zone shall be delineated ...” 

The 500 foot buffer is similar to the buffer zone 

requirement in the CEC’s FSA BIO-12 (Burrowing 

Owl Impact Avoidance and Minimization Measures), 

Condition 2 that states: 

“Establish a 500-foot setback ... and construct 

additional noise/visual barriers ...”

J Pages 

12-13 

Recommended 

Buffer Zone 

Management 

Guidelines 

• Clarify 

• Possible 

additional 

discussion 

d. The wording of both the title and the text of this section 

may make this section difficult to enforce as written. 

Recommend making clear that these are requirements 

by changing the title to "Buffer Zone Requirements," 

and replacing the word "should" with "must" 

throughout the text of this section. 

CONSIDER (Possible additional discussion):

Revise the section title as follows: 

“Recommended Buffer Zone Management 

Guidelines Requirements” 

Additional revisions to this section would be as 

follows: 

(1st paragraph) “Therefore the applicant has 

proposed to will manage the area ...” 

(Item 1) “If grassland continues ..., it should must be 

mowed 1 to 4 times ...” 

(Item 2) “Monitoring should must occur once ...” 

(Item 3) “If grassland ..., no mowing should must

occur.” 

(Item 4) “Other ground ... activities should must be 

...” 

(Item 5) “Trash removal should must be ...” 

(Item 6) “Human activities that ... kit fox should

must be prohibited...” 

(Item 7) “Use of night lighting ... zone should must

be prohibited ...” 

(Item 8) “The perimeter fence should must be 

constructed ...”
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Item Page(s) Section/ 

Description 

Comment Requested Action / Consideration

K Pages 

25-26 

Environmental 

Baseline 

• Clarify 

FORWARDING Avenal comment

This identifies the fact that areas of suitable habitat exist on 

the site, but does not mention that no kit fox sightings on site 

have occurred and figure 1 that identifies kit fox sightings 

does not specify the dates of these sightings. There does not 

seem to be any reference in the environmental baseline to 

the kit fox pair identified in paragraph 3 on page 4 (see 

above, ITEM B). Figure 1 shows no core San Joaquin kit fox 

FWS recovery area Jan 2007, and the link and satellite areas 

identified are over 2 miles at the closest point to the site. 

CONSIDER: Consider what further clarification or 

revision may be needed for this section for 

description of the environmental baseline. 

L Pages 

26-27 

Effects of Proposed 

Options 

• Clarify 

FORWARDING Avenal comment

Paragraph 4 (of section) 

To clarify, only 31.9 acres of agricultural lands will be 

converted to a fenced industrial facility (as identified in 

Attachment 1, to the letter to Susan Jones from Avenal 

Power Center, dated March 10, 2009). Also, this parcel has 

been farmed for over 50 years. 

UPDATE: Suggest revision for acreage reference in 

Paragraph 4 (1st sentence) of this section “Effects of 

Proposed Options” as follows: 

“The development of this project ... by the 

conversion of the 36 31.9 acres of agriculture 

lands to industrial ...” 

M1 Page 30 Incidental Take 

Statement 

- Opening 

statements/ Intro 

Statements 

• Replace 

language

a. Recommend changing the first full paragraph (on page 

30) to better reflect the roles and authorities of EPA 

and the applicant. 

UPDATE: Paragraph 2 of the Opening statements 

(on page 30) to be replaced with the following: 

“The measures described in this incidental take 

statement are non-discretionary; the 

Environmental Protection Agency must ensure 

that Avenal undertakes these measures or makes 

them binding conditions of any authorization 

provided to contractors. If Avenal fails to 

adhere to the terms and conditions of the 

incidental take statement through enforceable 

terms that are added to the permit or grant 

document, the protective coverage of section 

7(o)(2) may lapse. To monitor the impact of 

incidental take, Avenal must report the progress 

of the action and its impact on the species to the 

Service as specified in the incidental take 

statement.” 
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Item Page(s) Section/ 

Description 

Comment Requested Action / Consideration

M2 Page 31 Incidental Take 

Statement 

- Terms and 

Condition/ Intro 

statements 

• Clarify

b. Recommend changing first line from "EPA will 

comply" to "Avenal will comply" to better reflect the 

roles and authorities of EPA and the applicant. 

UPDATE: Revise under “Terms and Conditions” 

intro statement as follows: 

“In order ... EPA Avenal will comply with the 

following ...” 

M3 Page 31 Incidental Take 

Statement 

- Terms and 

Condition/ 

Condition 1.b. 

• Strike 

language 

c. Term and Condition 1.b should be stricken. 

We cannot predict at this time whether EPA will have a 

discretionary approval role on which to base reinitiation of 

consultation 3 years from the date of the final BO. 

Furthermore, EPA’s PSD permit regulations at 40 CFR 

52.21(r)(2) provide that "[a]pproval to construct shall 

become invalid if construction is not commenced within 18 

months after receipt of permit approval, if construction is 

discontinued for a period of 18 months or more, or if 

construction is not completed within a reasonable time." 

UPDATE: Delete Term and Condition 1.b that 

states: 

“b. Begin construction of the power plant within 

three years .... will need to reinitiate 

consultation.” 

M4 Page 31 Incidental Take 

Statement 

- Terms and 

Condition/ 

Condition 2 

• Clarify 

d. Recommend changing "EPA shall ensure that Avenal 

complies" to "Avenal must comply". 

In addition these terms and conditions under Paragraph 2 all 

seem to relate to Reasonable and Prudent Measure (RPM) 1 

rather than RPM 2. We suggest citing RPM 1, rather than 

RPM 2 (or simply combining the two RPMs into one RPM).. 

." 

UPDATE: Revise Condition 2 under “Terms and 

Conditions” as follows: 

“To implement reasonable and prudent measure 

number one two, the EPA shall ensure that

Avenal complies must comply with the following: 

...” 

Or combine both RPMs into one RPM.

M5 Page 31 Incidental Take 

Statement 

- Terms and 

Condition/ 

Condition 2.a. 

• Clarify 

e. not clear what the meaning of "changes to the 

biological assessment referred to in the Project 

Description" refers to or what the FWS is seeking from 

EPA and the applicant 

CONSIDER: Clarify Condition 2.a. under “Terms 

and Conditions”. Perhaps it should read “changes to 

the Project Description in the biological assessment”. 
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Item Page(s) Section/ 

Description 

Comment Requested Action / Consideration

M6 Page 31 Incidental Take 

Statement 

- Terms and 

Condition/ 

Condition 2.b 

• Correction

Any new owners of Avenal Energy must agree to the 

commitments made by Avenal Power Center, LLC..." 

inserted the correct project name and legal entity developing 

the project 

Also, EPA regulations at 40 CFR 52.21(r)(2) provide that 

"any owner or operator who constructs or operates a source 

or modification not in accordance with the application 

submitted pursuant to this section or with the terms of any 

approval to construct...shall be subject to appropriate 

enforcement action.” 

UPDATE: Revise language to read as follows:

“Any new owners or operators of Avenal Energy

Power Plant must adhere to the Terms and 

Conditions of this biological opinion to remain 

in compliance with the PSD permit for the 

Avenal Power Plant. New owners or operators 

must agree to the commitments made by Avenal 

Energy Power Center, LLC. under previous 

ownership ...” 

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