UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
 

REGION IX
 

75 Hawthorne Street
 

San Francisco, CA 94105·3901
 

September 1, 2010 

VIA E-MAIL AND U.S. MAIL 

Jin1 Rexroad 

Avenal Power Center, LLC 

One Allen Center 

500 Dallas Street, Level 31 

Houston, TX 77002 

Re: Final Biological Opinion for the Proposed Avenal Energy Project (SJ 08-01) 

Dear Mr. Rexroad: 

Thank you for your letter of August 16, 2010 concen1ing the biological opinion ("BO") 

issued by the U.S. Fish and Wildlife Service ("FWS" or "Service") on August 9, 2010 for 

Avenal Power Center, LLC's ("Avenal") proposed Avenal Energy Project. 

The August 9,2010 BO was issued at the conclusion offonnal consultation between 

EPA and FWS in accordance with Section 7 ofthe federal Endangered Species Act ("ESA"). 

This consultation was conducted in conjunction with EPA's Clean Air Act ("CAA") Prevention 

of Significant Deterioration ("PSD") permit decision-making action for the proposed Avenal 

Energy Project. This letter will clarify the remaining few steps that we have determined are 

necessary and appropriate to ensure that EPA's PSD permitting decision for the proposed Avenal 

Energy Project pursuant to 40 C.F.R. § 52.21 is consistent with the requirements ofthe ESA and 

consistent with the BO. 

The BO provides the FWS' opinion on the Avenal Energy Project's effects on a number 

federally-listed endangered species. The Service concurs in the BO with EPA's determination 

that the project is not likely to adversely affect the federally-endangered San Joaquin woollythreads (Monolopia congdonii), blunt-nosed leopard lizard (Gambelia sila), Tipton kangaroo rat 

(Dipodomys nitratoides nitratoides), and the Califomiajewelflower (Caulanthus californicus). 

In addition, the BO cOl1cludes that the construction, operation and maintenance ofthe 

proposed project will result in incidental take ofthe federally-endangered San Joaquin kit fox 

(Vulpes macrotis mutica), in the form or harm and harassment, and provides an incidental take 

statement to authorize that incidental take provided certain specified conditions are met, as 

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explained in more detail below. The BO also concludes that the proposed project is not likely to 

jeopardize the continued existence of the San Joaquin kit fox. I 

I 

II In order for the exemption for incidental take ofthe San Joaqllin kit fox to apply, the BO 

impo~es specified reasonable and prudent measures ("RPMs") to minimize incidental take, and a 

set o(tenns and conditions to implement these measures. As outlined in the BO, the applicant is 

responsible for directly implementing these reasonable and prudent measures and tenns and 

conditions, while EPA is responsible for ensuring that the applicant comply with them. The BO 

statesI that EPA must ensure that the applicant undertakes these measures or makes them binding 

conditions of any authorization provided to contractors for the exemption under 7(0)(2) to apply. 

The 130 further states that ifthe applicant (1) fails to adhere to the tenns and conditions of the 

incid~ntal take statement (consistent with revisions to its PSD permit application incorporating 

these temlS and conditions), and/or (2) EPA fails to retain oversight to ensure compliance with 

these terms and conditions, the protective coverage of section 7(0)(2) may lapse. 

The RPMs in the Avenal BO (p. 29) include the following: 

2. Prior to PSD pennit issuance, the applicant will submit a revised PSD pennit 

application that includes the tenns and conditions contained within this biological 

opinion. Including the terms and conditions ofthe biological opinion within the 

applicant's PSD pennit application requires the applicant to adhere to those tenns and 

conditions to remain in compliance with the PSD pennit requirements. 

3. The EPA shall forward to the Service a copy of the applicants' revised application 

containing the provisions ofthe biological opinion for the Service to review. 

Your August 16 letter indicated Avenal's intent to comply with the tenns ofthe BO, and 

suggested that EPA modify the Avenal PSD pennit terms to incorporate the BO's requirements. 

Consistent with the requirements ofthe BO and with EPA practice, to document that Avenal 

agrees to implement the RPMs and terms and conditions included in the BO, and to clarify that 

EPA's permit decision is based in part on the applicant's representations that it will, in fact, 

implement these requirements, we request that Avenal update its PSD permit application to state 

that, as part ofthis project, it will implement all RPMs, tenns and conditions and reporting 

requirements contained in the BO (pp. 29-31). We believe that a letter from the applicant that 

states 'that it is an addendum to the permit application and that includes the information requested 

immediately above would suffice for this purpose. (The letter should specifically refer to the BO 

as part ofthe addendum; however, an additional copy ofthe BO need not be submitted.) Please 

note that neither EPA's request for, nor Avenal's submittal of, this additional documentation 

concerning Avenal's ESA commitments affects the completeness status of Avenal's permit 

application, nor would it necessitate the need for additional public notice and comment. 
We appreciate your cooperation and assistance in this matter. If you have any questions, 

please contact Shirley Rivera of my staff at (415) 972-3966, or have your counsel contact Julie 

Walters, with our Office ofRegional Counsel, at (415) 972-3892. 

Sincerely, 

l I

h1 ? /

l/l Vi"i /, ,- /~../ /1// ../ c'"''''"~'il/h "~ ~. r '" ".... ~/4t~W1 Gerardo C. RIOS 

Chief, Air Permits Office 

cc: (via e-mail and U.S. mail) 

Susan Moore, U.S. FWS 

Jeffrey R. Holmstead, Bracewell & Giuliani LLP 

Gary RubensteiIl, Sierra Researcll