1. First paragraph on page 1: date at end of paragraph should be revised as follows: 

“December 27, 20112”. 

2. Description of the Proposed Action on page 3 states that "During operations, the power 

plant is expected to deposit nitrogenous gases into the atmosphere outside of the direct 

project footprint." It's a certainty that NOx will be emitted and nitrogen deposition will 

occur outside the project footprint, so we recommend that the text be changed to read as 

follows: "During operations, the power plant willis expected to deposit nitrogenous gases 

into the atmosphere outside of the direct project footprint." 

3. It is not very clear to the reader that the project applicant has the option of selecting one 

of the two major conservation measure options and is not required to implement both. 

For purposes of clarity and enforceability, we recommend that the paragraph under the 

heading “Conservation Measures” be revised to make this clearer, perhaps along the 

following lines: 

Conservation Measures 

The proposed action includes the following two conservation measures that will be 

implemented by the PPEC as part of the project to avoid, minimize, and offset potential 

adverse impacts to the Quino, gnatcatcher, Otay tarplant, and their respective critical 

habitats. These conservation measures are intended to address the potential indirect 

impacts of nitrogen deposition on these species through ongoing degradation of habitat. 

Given the limited availability of land that is appropriate to conduct the following 

conservation measures, these measures may be implemented outside of the identified 

action area but within the general vicinity of the project, with approval from the CFWO. 

The applicant will select and implement at least one of the following two conservation 

measure options (Weed Management Program or Land Acquisition) in accordance with 

the requirements and procedures described below in this biological opinion.

4. For purposes of clarity and enforceability, on pages 5-7, the term “start of project 

operation(s)” should be more clearly defined. It is not clear to the reader whether this 

term refers to, for example, the date on which the facility will begin to emit NOx from 

any turbine during first fire or if it refers to the date on which the facility begins normal 

operations. We suggest clearly defining the term “start of project operation(s)” the first 

time it is used in the document and making clear that this definition applies throughout 

the document. 

5. On page 5, in the third paragraph, second sentence, there is a typographical error as 

follows: “No less than thirty days prior to the start of project operation . . .” 

6. For clarity and enforceability, we recommend that the language on page 6 of the draft BO 

be revised to clarify whether an Otay tarplant establishment plan must be approved by the 

CFWO prior to the start of project operation. The language as drafted appears to be 

somewhat unclear as to whether the plan need only be submitted prior to the start of 
project operations versus needing to be approved prior to that time. Assuming the 

CFWO intends the latter, we recommend the following language change for clarification: 

If Otay tarplant establishment is necessary, PPEC will prepare an Otay tarplant 

establishment plan with quantifiable success criteria that must be approvedfor approval

by CFWO prior to the start of project operation. 

7. EPA cannot incorporate as specific PSD permit conditions all of the conservation 

measures, reasonable and prudent measures, and terms and conditions identified in the 

draft BO. To more accurately describe the manner in which the BO’s requirements will 

be memorialized and enforced, we recommend the following change to the second 

paragraph under the “Incidental Take Statement” heading on page 23: 

The measures described below are non-discretionary and must be implemented by the 

EPA and/or Pio Pico Energy Center, LLC in order for the exemption in section 7(o)(2) to 

apply. The EPA has a continuing duty to regulate the activity that is covered by this 

incidental take statement. If the EPA and/or Pio Pico Energy Center, LLC (1) fails to 

adhere to the terms and conditions of the incidental take statement through enforceable 

terms that are added to the PSD permit and/or PSD permit application and/or (2) fails to 

retain oversight to ensure compliance with any terms and conditions of this incidental 

take statement, the protective coverage of section 7(o)(2) may lapse. 

8. The requirement that the applicant adhere to one of the alternative conservation measure 

options appears to be a critical component of the incidental take statement. We 

recommend that the Incidental Take Statement’s language be more explicit concerning 

the applicant’s requirements to implement these measures, along the lines of the 

following. To ensure enforceability, EPA Region 9 will request that the permit applicant 

amend its PSD permit application to agree to implement the reasonable and prudent 

measures and terms and conditions in the biological opinion; therefore, making the 

conservation measure and other requirements in the reasonable and prudent measures and 

terms and conditions directly applicable to the applicant facilitates this process. We have 

also suggested some language to add to the end of this section for purposes of clarity. 

REASONABLE AND PRUDENT MEASURES 

The EPA is requiring the (1) The Applicant tois required to implement at least one of the 

agreed-upon conservation measure options described above in this biological opinion

(Weed Management Program or Land Acquisition) to help offset the incidental take of 

Quino and gnatcatcher due to the anticipated indirect effects over the course of the 30-

year project life. 

Our evaluation of the proposed action is based on the assumption that the actions as set 

forth in the “Conservation Measures” section of this biological opinion will be fully

implemented by the applicant. Any changes to these conservation measures required by 

the EPA, or in the conditions under which project activities were evaluated, may 

constitute a modification of the proposed action. If this modification causes an effect to 

the Quino or gnatcatcher, that was not considered in this biological opinion, reinitiation 
of formal consultation pursuant to the implementing regulations of section 7(a)(2) of the 

Act (50 CFR § 402.16) may be warranted. 

(2) In addition to these conservation measures, the following reasonable and prudent 

measure is necessary and appropriate to monitor and report the effects of the incidental 

take on these two species: 

The PPEC will monitor and report on compliance with the established take exemptions 

for Quino and gnatcatcher in accordance with the terms and conditions below. 

9. On pages 23-24, the incidental take statement incorrectly equates the amount of NOx 

emissions with the amount of NOx deposition. In addition, we understand that the 

CFWO’s intent is that the 70.4 ton NOx limit not be exceeded on a rolling basis. To 

correct this error and clarify the CFWO’s intent, we recommend the following language 

revision on both pages: 

The amount or extent of incidental take will be exceeded if aggregate nitrogenous oxide 

(NOx) emissions from the project’s combustion turbines, calculated deposition, measured

as nitrogen dioxide (NO2) in the combustion turbines, exceeds 70.4 tons of in any rolling 

12-calendar-month periodcalendar year. 

10. To more accurately reflect EPA’s authorities and the applicant’s responsibilities in terms 

of compliance with the BO’s reasonable and prudent measures and terms and conditions, 

we recommend the following change to the language in the first paragraph under the 

heading “Terms and Conditions” on page 24: 

To be exempt from the prohibitions of section 9 of the Act, PPEC will comply, and the 

EPA will ensure that the PPEC complies, with the following terms and condition, which 

implements the reasonable and prudent measures described above. These terms and 

conditions are non-discretionary. 

11. To ensure accuracy and enforceability, we recommend the following changes to the 

language on page 25 of the draft BO in the second paragraph under the heading “Terms 

and Conditions”: 

To implement the reasonable and prudent measure (2) described above, the PPEC will 

monitor nitrogen oxide emissions and report the results to the CFWO annually, and .

aggregate NOX emissions from the project’s combustion turbines, calculated as will be 

estimated using nitrogen dioxide (NO2) on a 12-month rolling basis, monitoring within 

the combustion turbines. NOx emissions will be considered exceeded if NO2 in any 12-

month period calendar year exceeds they exceed 70.4 tons. PPEC will report these data 

for each calendar year no later than February 1 of the following year.