1 Attachment 

Gerardo – this is the submission to USFWS that I was referring to when we spoke a few minutes ago.

Gary

From: Lincoln_Hulse@URSCorp.com [mailto:Lincoln_Hulse@URSCorp.com] 

Sent: Wednesday, September 14, 2011 1:44 PM 

To: Eric_Porter@fws.gov

Cc: grchandler@apexpowergroup.com; Gary Rubenstein; mafoster@stoel.com; Rios.Gerardo@epamail.epa.gov;

Maggie_Fitzgerald@URSCorp.com; djenkins@apexpowergroup.com

Subject: Pio Pico Energy Center

 

FW: Pio Pico Energy Center 

Gary Rubenstein 

to: 

Gerardo Rios 

10/12/2011 11:00 AM 

Cc: 

Gary Rubenstein 

Hide Details 

From: Gary Rubenstein <GRubenstein@sierraresearch.com>

To: Gerardo Rios/R9/USEPA/US@EPA 

Cc: Gary Rubenstein <GRubenstein@sierraresearch.com>

History: This message has been forwarded. 

Pio Pico_Section 7_letter_14Sept2011_Final.docx

Page 1 of 2

file://C:\Documents and Settings\grios\Local Settings\Temp\notesBAAA25\~web7112.htm 2/28/2012
Hi Eric: 

Please find attached a letter regarding the Pio Pico Energy Center Project and formal Section 7 consultation. This 

letter is intended to assist the U.S Environmental Protection Agency and U.S. Fish and Wildlife Service in their 

respective understanding of the Application for Certification and Prevention of Significant Deterioration applications 

and in particular, the Project's air quality modeling and nitrogen deposition analysis results and the conclusion that 

the project does not trigger any further evaluation or permitting under the Endangered Species Act. 

Please let me know if you have any questions or if you would like to discuss further. 

A hard copy is also being sent to you via regular mail. 

Thanks, 

Lincoln Hulse 

Natural Resources Division Manager 

URS Corporation 

2020 East 1st Street, Suite 400 

Santa Ana, CA 92705 

Phone 714-648-2824 

Fax 714-433-7701 

Mobile 714-227-1992 

This e-mail and any attachments contain URS Corporation confidential information that may be proprietary or 

privileged. If you receive this message in error or are not the intended recipient, you should not retain, distribute, 

disclose or use any of this information and you should destroy the e-mail and any attachments or copies.

Page 2 of 2

file://C:\Documents and Settings\grios\Local Settings\Temp\notesBAAA25\~web7112.htm 2/28/2012
URS Corporation 

2020 East First Street, Suite 400 

Santa Ana, CA 92705 

Tel: 714.835.6886 

Fax: 714.667.7147 

www.urscorp.com

September 14, 2011 

Eric Porter 

Unites States Fish and Wildlife Service 

Carlsbad Fish and Wildlife Office 

6010 Hidden Valley Road 

Carlsbad, CA 92011 

Subject: Pio Pico Energy Center 

Dear Mr. Porter: 

The Pio Pico Energy Center Project (the “project”) is a proposed facility to be located within an 

unincorporated area south of the City of San Diego, California. The project site is within the San 

Bernardino Meridian, Section 30, Township 18 South, and Range 1 East of the Otay Mesa United 

States Geological Survey (USGS) 7.5-Minute Topographic Quadrangle Map (USGS 1975). The 

primary permitting authority is the California Energy Commission (CEC) via an Application for 

Certification (AFC), but the project is also required to obtain a Prevention of Significant Deterioration 

(PSD) permit from U.S. Environmental Protection Agency (EPA), Region 9. 

This letter demonstrates that and explains how the project’s nitrogen emissions are miniscule and will 

not have any significant adverse environmental effects to federally endangered or threatened species, 

jeopardize the continued existence or result in the destruction or adverse modification of designated 

critical habitat for such a species and that, for those reasons, there is no reason or legal basis to require 

or include a Section 7 consultation under the Endangered Species Act. This is primarily because the 

maximum possible levels of nitrogen contribution from the project are negligible and is not sufficient 

to cause an identifiable or statistically significant change in plant growth patterns. This is also because 

any possible effects of even greater levels of nitrogen deposition in the areas of possible concern have 

already been eliminated by virtue of agreed to environmental enhancements provided by an 

immediately adjacent power plant. 

This letter is intended to assist the EPA and U.S. Fish and Wildlife Service (FWS) in their respective 

understanding of the AFC and PSD applications and in particular, PPEC’s air quality modeling and 

nitrogen deposition analysis results and the conclusion that the project does not trigger any further 

evaluation or permitting under the Endangered Species Act (ESA). 

Applicable Legal Authority 

The ESA requires Federal agencies. i.e., EPA Region 9, to consult with the U.S. Fish and Wildlife 

Service (FWS), to ensure that agency actions are not likely to jeopardize federally-designated 

endangered or threatened species, or result in the destruction or adverse modification of critical habitat 

for such a species. Section 7 (a)(2) of the ESA states that each Federal Agency shall, in consultation 

with FWS, ensure that any action it authorizes, funds, or carries out is not likely to jeopardize the 

continued existence of a listed species or result in the destruction of adverse modification of 

designated critical habitat. In fulfilling these requirements, the use of the best scientific and 

commercial data shall be provided (USFWS 1998). “Jeopardize the continued existence of” is 
Mr. Eric Porter 

United States Fish and Wildlife Services 

February 28, 2012 

Page 2

defined as “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” (USFWS 1998). “Destruction or adverse 

modification of critical habitat” is defined as “a direct or indirect alteration that appreciably diminishes 

the value of critical habitat for both the survival and recovery of a listed species. Such alterations 

include, but are not limited to, alterations adversely modifying any of those physical or biological 

features that were the basis for determining the habitat to be critical” (USFWS 1998). 

Background 

The project’s facility placement and design were intended to avoid populations of special-status 

species within the region. The majority of the study area has been previously disturbed and includes 

developed areas containing commercial and public infrastructure. Additionally, the industrial park 

developer graded the project property in first quarter 2011 as described in the 2009-2010 County of 

San Diego Grading Permit 2700-1555. This soil removal and grading of the property was already 

planned for prior to the inception of this project and occurred regardless of the project. Accordingly, 

the environmental baseline includes facility placement and design that targets the majority of project 

impacts towards lands that are adjacent to cleared or disturbed areas and roads. The lands abutting the 

project’s ground disturbance footprint include the Otay Mesa Generating Project (OMGP) and its 

appurtenances. Any individual species present in the area or in adjacent/surrounding areas are 

assumed to have acclimated and developed tolerance to substantial noise, light, and other effects 

resulting from the presence of an active power plant and its access roads. Botanical and wildlife field 

studies conducted within the project site did not identify any threatened or endangered plant or 

wildlife species within the project study area (URS 2010). Construction of the project will be on 9.99 

acres of previously developed/disturbed non- native habitat. The hills approximately 1,500 feet east of 

the project include FWS designated critical habitat for Otay Tarplant, Quino Checkerspot Butterfly, 

and California Gnatcatcher. 

The existing OMGP, which is a baseload power plant of greater power generation (approximately 500 

MW) and significantly greater capacity factor (greater than 90 percent equivalent to 8,000 hours per 

year) is located immediately adjacent to and east of the proposed project. OMGP agreed to provide 

assurances against any possible nitrogen deposition effects by funding regular inspection for and 

eradication of non-native weeds in essentially the same nitrogen deposition zone as the proposed 

project. In contrast, the proposed project will generate 300 MW and operate a maximum of 4,000 

hours per year (which is equivalent to a 46 percent capacity factor). As such, the proposed project’s 

contribution to nitrogen deposition will be substantially smaller than OMGP’s contribution to the 

habitat areas located east of the project. This is highly relevant when considering any possible, and by 

definition necessarily much smaller incremental effects of the proposed project, since the primary 

possible impact area has already been provided assurances against any adverse impact by virtue of 

OMPP’s agreed to nitrogen deposition impact elimination activities. 

Nitrogen Deposition 

Generally speaking, increasing nitrogen deposition onto vegetated areas may increase non-native 

invasive plant species and alter native vegetation communities, which could negatively affect 

threatened and endangered species. Atmospheric nitrogen deposition also has the potential to 

decrease biodiversity and contribute to the loss of critical habitat for endangered species by altering 
Mr. Eric Porter 

United States Fish and Wildlife Services 

February 28, 2012 

Page 3

the structure and function of terrestrial ecosystems (Weiss 2006). Nitrogen is often a primary limiting 

nutrient on overall plant productivity; as a result, an increase of nitrogen in natural communities can 

result in an abundance of nitrophilous species, which then out-compete native species adapted to the 

natural environmental conditions. Based on a California-wide study of nitrogen deposition, 5 kg/ha/yr 

has been used as a benchmark to assess potential effects of nitrogen deposition on plant communities); 

however, this benchmark does not imply that 5 kg/ha/yr is the critical load for negative impacts for all 

ecosystems, since some may be more sensitive and some may be less sensitive (Weiss, 2006). This 

CEC-derived threshold serves as a benchmark for coarse screening of nitrogen deposition on plant 

communities and it is not a federal regulation related to the ESA. 

The regional background deposition without the project is estimated to be 11.56 kg/ha/yr (Tonneson 

et. al. 2007), which is more than double the threshold for significance in sensitive areas. The peak 

impact from OMGP, which is located directly east of the project, is roughly 13 kg/ha/yr, compared to 

the project’s contribution of 1.6 kg/ha/yr. The contribution of nitrogen deposition from the project is 

2% of the total cumulative regional nitrogen background, averaged over the critical habitat for Otay 

Tarplant, Quino Checkerspot Butterfly, and California Gnatcatcher, with portions experiencing a 6% 

increase. 

Accordingly, the project will result in a miniscule increase in nitrogen concentrations in the areas 

surrounding the project, particularly to the east. The potential increase of non-native invasive plant 

species and the alteration of native vegetation communities are negligible on a regional level 

compared to the current regional background. The incremental increase in nitrogen emissions from 

the proposed project will not have significant adverse environmental effects to federally endangered or 

threatened species, jeopardize the continued existence or result in the destruction or adverse 

modification of designated critical habitat for such a species. 

The project’s NOx emissions will also be offset at the District mandated ratio of 1 to 1.2. These NOx 

offsets were generated from the decommissioning of a power plant located 10 miles west of the 

project site. Based on the incremental contribution to the local background and the NOx offsets, the 

project team concluded that NOx emissions will not have a significant adverse impact on endangered 

species and/or critical habitat. The project Applicant has, nevertheless, agreed to voluntarily 

contribute funds in support of weeding efforts at an approved research and habitat management area 

that would include periodic weeding of non-native plants. The proposed funding would be sufficient 

to pay for weeding of 50 acres once every four years for the life of the 20-year project The project as 

thus constituted will, therefore, have no significant adverse effects on biological resources.. Moreover, 

the project would not (either individually or cumulatively) cause an impermissible “take” of a 

protected species under section 9 of the ESA. This is because the definition of “harm” under the 

regulations implementing the ESA is not met here. 

In summary, the information contained in the AFC proceeding, including air quality modeling and 

nitrogen deposition analysis, is sufficient to support a determination that the project will not have 

significant adverse environmental effects to federally endangered or threatened species, jeopardize the 

continued existence or result in the destruction or adverse modification of critical habitat for such a 

species. Furthermore, with the NOx emission offsets and voluntary habitat weeding, the project will 

compensate for all inconsequential direct, indirect, and cumulative adverse impacts from the project 

on biological resources to levels that are not significant. 
Mr. Eric Porter 

United States Fish and Wildlife Services 

February 28, 2012 

Page 4

These findings can be confirmed by the EPA, and a determination of compliance can be made, 

without a consultation under the ESA. However, the EPA in its review will rely on the FWS for 

direction of the requirements of the ESA and it is the applicant’s understanding that the FWS will not 

require a formal section 7 consultation because the project’s nitrogen emissions will not have 

significant adverse environmental effects to federally endangered or threatened species, jeopardize the 

continued existence or result in the destruction or adverse modification of designated critical habitat 

for such a species. 

Please contact me at (714) 648-2824 with questions. We respectfully request confirmation that the 

proposed Project will not require a formal ESA Section 7 consultation. 

We appreciate your attention to this matter. 

Sincerely, 

URS CORPORATION 

Lincoln Hulse 

Natural Resources Division 

2020 East First Street, Suite 400 

Santa Ana, CA 92705 

References 

Tonnesen, G., Wang, Z., Omary, M., Chien, C.-J., 2007. Assessment of nitrogen deposition: 

modeling and habitat assessment. California Energy Commission, PIER Energy-Related 

Environmental Research. CEC-500-2006-032. Available from: 

http://www.energy.ca.gov/2006publications/CEC-500-2006-032/CEC-500-2006-

032.PDF. 

U.S. Fish and Wildlife Service and National Marine Fisheries Service. 1998. Endangered Species 

Habitat Conservation Handbook. March 1998. 

USGS (United States Geological Service). 1975 7.5-Minute Quadrangle Map Otay Mesa, 

California. 

Weiss, S.B. 2006. Impacts of Nitrogen Deposition on California Ecosystems and Biodiversity. 

California Energy Commission, PIER Energy-Related Environmental Research. 

http://www.energy.ca.gov/2005publications/CEC-500-2005-165/CEC-500-2005-165.PDF, May. 

CC: 

Gary Chandler, PPEC Gerardo Rios, EPA Region 9 

Maggie Fitzgerald, URS Gary Rubenstein, Sierra Research 

Missy Foster, Stoel-Rives Eric Solorio, CEC