## PIS PilCO EN,IIRGY CIhITER. [".1C
August 23,2012 Via Email andU.S.

Mail
Eric Porter Unites States

Fish and Wildlife Service Ecological

Services Carlsbad

Fish and Wildlife Office 6010Hidden

Valley Road Carlsbad,

CA 92011 Subject: Response

to USFWS Letter Re: FWS-SDG-10B0661-12F0275 Draft Formal Section7 Consultation for the Pio Pico Energy Center, San Diego CountyoCalifornia

Dear Mr. Porter,
Pio Pico Energy

Center, LLC (PPEC

or Applicant)

respectfully

submits thefollowingcomments in response

to the draft biological

opinion that the United

States Fish andWildlife Service

(Service)

issued to EPA and CEC on August 8,2012. Referring to this letter,

herein areApplicant's comments and suggested

changes. Comment l: Comment la. Reference page 3, paragraph

2, sentence

2'."The anticipated

life of the facility is 30 years." PPECrequests

the following revisions so the sentence

reads asfollows: "The anticipated life of the facif ity is at least20 years." Comment 1b. Reference page 4, paragraph

4, first sentence:

"A Prope$r Analysis Record (PAR) or PAR-like analysis

will be prepared

to establish

the appropriate

long-term

fee to fund the weed abatement

program for the identified lands during the life of the project, which is anticipated

to be 30 years."
PPECrequests

the following substitute sentence:

"A Properfy

Analysis Record

(PAR) or PARlike analysis

will be prepared

to establish

the appropriate

long-term

fee to fund the weed abatement

program for the identified lands during the life of the project, which is anticipated

to be at least

20 years."
Comment lc. Reference page 24,paragraph

5, REASONABLE AND PRUDENT MEASURES reads: "The EPA is requiring the Applicant to implement conservation

measures

to help offsetthe incidental

take of Quino and gnatcatcher dueto the anticipated

indirecteffects

over the course

of the 3O-year

project life." PPEC requests

the following substitute sentence:

"The EPA is requiring the Applicant to implementconservation measures

to help offsetthe incidental take of Quino and gnatcatcher due to the anticipated

indirecteffects

duringthe life of the project, which is anticipated

to be at least 20 years."Mr. Porter

August 23,2014 Page2

Comment 2. Reference page 4, paragraph2. "The proposed action includes

the following conservation measures

that will be implemented by the PPECas part of the project to avoid, minimize, and offset potential

adverse impacts to the Quino, gnatcatcher, Otay tarplant, andtheir respective

critical habitats. These conservation

measures

are intended

to address

the potential

indirect impacts

of nitrogen

deposition on these

species throughongoingdegradation of habitat.

Given the limited availability of landthat is appropriate

to conduct

the following conservation measures,

these measures

may be implemented

outside of the identifiedactionareabut within the general vicinity of the project, with approval

from the CFWO.', The language

on page 4, paragraph

2, is unclear. PPEC

suggests that the conservation

measures as detailed

on page l5 be included on page 4: "The proposed action includes the following conservation measures that will be implemented by the PPEC as part of the project to avoid' minimize, and offset potential adverseimpacts to the Quino, gnatcatcher, Otay tarplant, and their respective critical habitats. Theseconservation measures are intended to addressthe potential indirect impacts of nitrogen deposition on these species through ongoing degradation of habitat. Accordingly, the Applicant has agreed to: t) providefunding to support an invasive species management program, or 2) acquire und conserve a minimum of 46.93 acres of Quino habitst, 18.57 acres of gnatcatcher habitat, and 11.86 acres of Otay tarplant habitat. These measures will be implemented either separately or together if suitable habitatfor a combination of species can befound in the same location. Given the limited availability of land that is appropriate to conduct the following conservation measureso these measures

may be implemented outside of the identified action area but within the general vicinity of the project, with approval from the CFWO." Comment 3. Reference page 3, paragraph

3, sentence

l: "A Property

Analysis Record

(PAR) or PARlike analysis

will be prepared

to establish

the appropriate

long-term

fee to fund the weed abatement programfor the identified lands duringthe life of the project, which is anticipated

to be 30 years. PPEC requests

that a not to exceed

amountbe included

as a long-term

fee to fund a weed abatement

program for 20 years. Comment 4. Reference page 6, paragraph

I lastsentence:

'oNo less than 50 acres

of habitat

will be acquired

unless approved

in writing by the CEC,CDFG,CFWO,and DpLU.,, PPECrequests

the following substitute language,

which is consistent

with the CEC's proposed Condition of CertificationBIO-13': "If habitatis identified that benefits

all three rp""ier, l"rt than 46.93

acres will be allowed if approved in writing by the CEC, CDFG, CFWO, and DpLU." Comment 5. Reference page 6, paragraph

2, first sentence:

o'Under this scenario,

the land will be transferred

to an existing land management entity, and PPEC

will be responsible

for ensuring

that the land will be managed

for general

wildlife values."

' CEC Staff proposed

Conditionof Certification BIO-13 in its Final StaffAssessment (May 22,2012) andthe same Condition of Certification appears in the Presiding

Member's Proposed

Decision(Aug. 6, 2012).Mr. Porter

August 23,2012 Page 3 Once PPECtransfers title of the mitigation landto a land management entity, PPECshouldbe relieved of any responsibility

associated

with suchland. Therefore, Applicant suggests

that this sentence

either be stricken

from the Biological Opinion, or substituted with the following: uUnder this scenario, the land will be transferred to an existing land management entity, which will be responsiblefor ensuring that the land will be managedfor general wildlde values.t' Comment 6. Reference page 23, paragraph

3, bullet I : "Death or injury of Quino larvae from lossof host plants within 46.93

acres in action

area. The amount

or extent

of incidental

take will be exceeded

if nitrogenous

oxide (NOx), deposition, measured

as nitrogen

oxide (N2) in the combustion turbines, exceeds 70.4tons of in any calendar year." PPEC requests thefollowingsubstitute language

which is consistent

with pagel3 of this BO: "Death or injury of Quino larvae from indirect impacts

to host plants

within 46.93acres

in action area. The amount

or extent

of incidentaltake

will be exceeded

if nitrogenous

oxide(NOx), deposition,

measured

asnitrogen

oxide(N2) in thecombustion turbines,

exceeds 70.4 tons of in any calendar

year".
Comment 7. Reference page 24, bullet | : "Harm to up to threepairsof gnatcatchers dueto the lossof up to 18.57 acres of coastal

sage scrub within theaction

area. The amount

or extent

of incidental

take will be exceeded

if nitrogenous

oxide (NOx) deposition, measured

as nitrogen

oxide (N2) in the combustion turbines,

exceeds 70.4 tons of in any calendar

year."
PPEC requests the followingsubstitute language

which is consistent

with pagel3 of this BO: "Harm to up to three pairsof gnatcatchers dueto tlte indirect impactsof up to I 8.57acres of coastal sage scrub within theaction

area. The amount

or extent

of incidentaltake

will be exceeded

if nitrogenous

oxide (NOx) deposition, measured

as nitrogen

oxide (N2) in the combustion

turbines,

exceeds 70.4 tons of in anycalendar

year."
Comment 8. Reference page 5, paragraph

3: "At least

60 daysprior to the startof projectoperation, PPECwill submit a final weed management plan to the CEC that has beenreviewed and approved

by 

## cFwo."
PPECdesires

the following language be added

to this section: "At least 60 daysprior to the start of projectoperation,

PPEC will submita final weed management plan to the CEC that has beerr reviewed and approved by CFWO. The CF*IO will be provided l5 working days to provide comments on the weed management plan. If no comments are received daring the IS-day comment period, tlte weed management plan is deemed approved by the CFIYO. On behalf of PPEC,I trust that the Service will find these

comments

reasonable

andwill make changes to thefinal PPEC

Biological

Opinionconsistent

herewith.

Your timely consideration of these andany comments

providedby EPA and/or the CEC is greatly

valued, particularly

given Applicant's expectation of a favorableFinal Decision by the CEC and a final PSD permit by EPA Region9 in the nearfuture.

### Mr. Porter

August 23,2012 Page 4

Please do not hesitate

to contact

me if you Sincerely, have anyquestions

or comments

regarding

these comments.

David Jenkins



### CC: (email

only) Gerardo Rios, Region

9 EpA Roger Kohn, Region

9 EpA JulieWalters,

Region 9 EpA Ann Crisp,CEC Eric Solorio,

CEC R Rodriguez,

CFG Karen Goebel, FWS Doreen Stadtlander,

FWS Maggie Fitzgerald,

Sierra Research Lincoln Hulse, NOREAS