u.s. FISH & WII.DLlFE SERVICE 

# e:::-.1 United States Department ofthe Interior**.~**
FISH AND WILDLIFE SERVICE 

### TAKE PRIDE
Ventura Fish and Wildlife Office 

### INAMERICA

2493**Portola.Roa~, sUi~ECE'VED**  Ventura, Califorma 93<t"\

.. IN REPLY REFER TO:

2008-TA-0407 

### MAY 1 3 2008 May 8, 2008

Gerardo C. 

### Rios Air Division, AIR

-

# .3 U.S. EPA, REGION 9 

### Chief, Air Permits Office U.S. Environmental Protection Agency 75 Hawthorne Street San Francisco, California 94105
Subject: Translocation Plan for Desert Tortoises at the Victorville 2 Hybrid Power Project, San Bernardino County, California (l-8-07-F-67)
During our recent consultation on the U.S. Environmental Protection Agency's proposal to issue

a prevention ofsignificant deterioration permit to the City ofVictorville for the Victorville 2 hybrid power project, the U.S. Fish and Wildlife Service agreed with other agencies, such as the California Energy Commission and California Department ofFish and Game, that we would complete the biological opinion prior to the development ofa final translocation plan for any individuals ofthe federally threatened desert tortoise (Gopherus agassizii) 

### that may be found onsite during construction. We issued our final biological opinion on January 23,2008. Inland Energy provided us a draft translocation plan, dated March 3, 2008, for our review. We offer the following specific comments on the translocation plan.

Page 6, 4.0. Translocation Plan, Paragraph 2. The City ofVictorville proposes to move desert tortoises from areas oftemporary disturbance to "adjacent lands where approved by the respective landowner." Determining the appropriate landowner at the time movement ofthe desert tortoises is necessary may be difficult; additionally, some landowners may not provide approval. For these reasons, the City ofVictorville should develop a contingencyplan in the event these locations cannot be used for desert tortoises. Specifically, we recommend that such animals be relocated to the same location and in the same manner as desert tortoises from the power plant site.

Page 7, 4.1. Consistency with Recovery Plan and Incidental Take Permits, Paragraph 2. As a point ofclarification, the Service has not issued an incidental take permit for the proposed action and does not intend to do so. We issued a biological opinion, pursuant to section 7(a)(2) ofthe Endangered Species Act of 1973, as amended (Act);. The biological opinion contains an incidental take statement that provides an exemption to the prohibitions against the taking of desert tortoises; these prohibitions are contained in section 9 ofthe Act. Incidental take permits are issued under the authorities ofsection lO(a)(l)(B) ofthe Act and are used when no Federal nexus exists for the proposed action.

Page 9,4.2. Occupied Habitat Clearance Surveys, Last Paragraph. We recommend that the City ofVictorville also consider using small enclosures to.maintain desert tortoises within or adjacentGerardo C. Rios 2

to areas subject to temporary impacts from construction. Specifically, on some linear projects, authorized biologists have used such enclosures to prevent desert tortoises from moving into harm's way during construction. These enclosures have the advantages ofpossibly causing less stress to the desert tortoise by eliminatinghandling and ofnot requiring approval from adjacent landowners. Such enclosures would need to be designed so project workers are aware oftheir purpose but not serve as attractions to predators and people who might collect the desert tortoises. The size ofthe enclosure would be dependent upon the time the desert tortoise would be enclosed and the season. We recommend leaving these decisions to the authorized biologist, who can discuss specific issues with the agencies, as needed. Ifthe authorized biologist is not familiar with the use ofsuch enclosures, we can provide contact information for biologists who have used them successfully during other projects.

Page 11,4.3. Desert Tortoise Handling and Transport, Last Paragraph on Page. We recommend that the City ofVictorville specify an approximate size ofdesert tortoises that will be considered to be ''juvenile,'' rather than leaving the more subjective description currently in the translocation plan.

Page 14,4.5. Translocation Scheduling. We interpret the sequence ofevents described in this section to be that the power plant site and staging areas will be fenced to prevent movement of desert tortoises in and out ofthe areas. After the fence is installed, biologists will survey the area to determine where desert tortoises are located. Ifdesert tortoises are found, the areas where these animals are located will be fenced to hold them in these locations until fall, when translocation will occur. Ifthis sequence ofevents is not what the City ofVictorville intended, the translocation should be clarified to more clearly describe the proposed process.

The translocation plan is not clear as to whether each desert tortoise will receive its own holding

area or whether all the animals will be placed into one area. Moving all the desert tortoises into

one area would likelybe more stressful because the animals would be moved into possiblynew surroundings, during the hottest and driest time ofthe year; they would also be confined to a limited area with other desert tortoises, with no opportunity to separate themselves from other individuals, ifnecessary.

For these reasons, we recommend that each desert tortoise be fenced in where it was found, in a smaller area (e.g., 5 acres). The smaller area is likely appropriate because the desert tortoises would likely be moving less in the summer; consequently, a larger area would not be needed. We further recommend that the animals be regularly monitored; ifthey begin moving more than expected, they should be fed and watered on a schedule determinedjointlyby the authorized biologist, Service, and California Department ofFish and Game.
Alternatively, we would support the City ofVictorville moving all the desert tortoises from the staging and power plant areas into a temporary captive location until they can be translocated to their ultimate destination in the fall. Ifa captive location is used, the animals must be kept separate from all other animals at all times, be fed and watered appropriately, ifactive, and regularly monitored by the authorized biologist. Day-to-day decisions on maintenance ofthese animals could be made jointlyby the authorized biologist, Service, and California Department ofGerardo C. Rios 3

Fish and Game; alternatively, the authorized biologist could make such decisionsjointlywith a person who has recognized expertise in the husbandry ofdesert tortoises.

The City ofVictorville must inform us ofthe direction it intends to undertake prior to the onset ofground-disturbing activities.

Page 24, 4.6. Translocation Area Options and Considerations. Option 1, Private Lands Located in Proximity to the Project Area. We do not support the option ofacquiring lands in the vicinity ofthe power plant and translocating these animals to such lands. The ultimate conservation benefits ofsuch an acquisition and translocation would be that the acquired lands and translocated desert tortoises contribute to a large block ofmanaged lands that are occupied by desert tortoises functioning under habitat conditions that are as close to natural as possible. Ifthe City ofVictorville acquired lands adjacent to the powerplant site, we expect that these lands would eventuallybe surrounded by urban development. The translocated desert tortoises mayor may not remain on such relatively small parcels; we expect that, eventually, these animals would succumb to either the direct or indirect effects ofhuman activities.

Option 2, Private Lands Located in the western Mojave Desert, away from the Project Area. The identified lands near Edwards Air Force Base maybe suitable. We consider the primary drawback ofthis area as a translocation site to be the presence ofthe rail line to the north ofthe site. Ifmonitoring indicates translocated desert tortoises consistently attempt to cross the rail line, the City ofVictorville should adaptively manage the situation to reduce the likelihood that these animals would be killed. Such measures could include fencing the rail line or temporarily confining the translocated individuals until they settle down.

Option 3, Public Lands Located in the Vicinity ofthe Project Area. We do not support the translocation ofdesert tortoises from the power plant site to unclassified public lands that the Bureau ofLand Management (Bureau) has designated for disposal. This option may merely delay the decision ofwhere to move desert tortoises in the long term; it also defeats the purpose ofmoving the animals to an area where they would contribute to the long-term survival and recovery ofthe species.

Moving the desert tortoises to public land that has been designated by the Service as critical habitat and is within a desert wildlife management area designated by the Bureau would likely be the option that provides these individual animals the best opportunity to survive and would contribute to the long-term survival and recovery ofthe species. We recognize that the existing recovery plan for the desert tortoise recommends against translocating desert tortoises into areas that are important for recovery (e.g., critical habitat). However, hundreds ofdesert tortoises are currently being translocated into critical habitat south ofFort Irwin. Additionally, the Service is currently revising the recovery plan for the desert tortoise and is considering the use ofcarefully implemented translocation programs as a tool to conserve desert tortoises. For these reasons, we suggest that the City ofVictorville strongly consider areas ofcritical habitat within desert wildlife management areas as a translocation site. We understand that some areas ofprivate lands within critical habitat and a desert wildlife management area are located reasonably near the project area. The acquisition ofsuch lands would serve to further protect the surrounding4 Gerardo C. Rios

public lands by preventing future development that would be incompatible with the conservation ofdesert tortoises; the acquired lands would also provide a safe haven for the translocated desert tortoises. Ifthe desert tortoises opted to leave the acquired lands, they would remain on public lands where the primary management objective is the conservation ofdesert tortoises.

Page 30, 4.6. Translocation Site Preparation, First Paragraph. Ifthe predator-proofenclosure is to be installed, the City ofVictorville would need to ensure that it is not vulnerable to vandalism, possibly primarilyby constructing it in an area that is not visible to users ofthe desert.

We appreciate the Environmental Protection Agency's cooperation during this consultation. We request that the Environmental Protection Agency, California Energy Commission or City of Victorville provide us with documentation regarding the actions that are proposed in a final translocation plan. Such documentation may consist ofan addendum to the draft plan in which the City ofVictorville clarifies any changes it has decided to make based on comments and discussions with the reviewing agencies.

Ifyou have any questions, please contact Ray Bransfield ofmy staffat (805) 644-1766, extension 317.

Sincerely, 

# l

# 4~~ Car1-T. Benz Assistant Field Supervisor