PIS PilCO EN,IIRGY CIhITER. [".1C

August 23,2012 Via Email and U.S. Mail

Eric Porter

Unites States Fish and Wildlife Service

Ecological Services

Carlsbad Fish and Wildlife Office

6010 Hidden Valley Road

Carlsbad, CA 92011

Subject: Response to USFWS Letter Re: FWS-SDG-10B0661-12F0275

Draft Formal Section 7 Consultation for the Pio Pico Energy Center,

San Diego Countyo California

Dear Mr. Porter,

Pio Pico Energy Center, LLC (PPEC or Applicant) respectfully submits the following comments in

response to the draft biological opinion that the United States Fish and Wildlife Service (Service) issued

to EPA and CEC on August 8,2012. Referring to this letter, herein are Applicant'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."

PPEC requests the following revisions so the sentence reads as follows: "The anticipated life of

the facif ity is at least 20 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."

PPEC requests 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 offset the

incidental take of Quino and gnatcatcher due to the anticipated indirect effects over the course of

the 3O-year project life."

PPEC requests the following substitute sentence: "The EPA is requiring the Applicant to

implement conservation measures to help offset the incidental take of Quino and gnatcatcher due

to the anticipated indirect effects during the 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 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 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 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. 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

program for the identified lands during the life of the project, which is anticipated to be 30 years.

PPEC requests that a not to exceed amount be included as a long-term fee to fund a weed

abatement program for 20 years.

Comment 4. Reference page 6, paragraph I last sentence: 'oNo less than 50 acres of habitat will be

acquired unless approved in writing by the CEC, CDFG, CFWO, and DpLU.,,

PPEC requests the following substitute language, which is consistent with the CEC's proposed

Condition of Certification BIO-13': "If habitat is 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 Condition of Certification BIO-13 in its Final StaffAssessment (May 22,2012) and the same

Condition of Certification appears in the Presiding Member's Proposed Decision (Aug. 6, 2012).
Mr. Porter

August 23,2012

Page 3

Once PPEC transfers title of the mitigation land to a land management entity, PPEC should be

relieved of any responsibility associated with such land. 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 loss of 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 70.4 tons of in any calendar year."

PPEC requests the following substitute language which is consistent with page l3 of this BO:

"Death or injury of Quino larvae from indirect impacts to host plants within 46.93 acres in action

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

any calendar year".

Comment 7. Reference page 24, bullet | : "Harm to up to three pairs of gnatcatchers due to the loss of up

to 18.57 acres of coastal sage scrub within the 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 70.4 tons of in any calendar year."

PPEC requests the following substitute language which is consistent with page l3 of this BO:

"Harm to up to three pairs of gnatcatchers due to tlte indirect impacts of up to I 8.57 acres of

coastal sage scrub within the action 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 any calendar year."

Comment 8. Reference page 5, paragraph 3: "At least 60 days prior to the start of project operation,

PPEC will submit a final weed management plan to the CEC that has been reviewed and approved by

cFwo."

PPEC desires the following language be added to this section: "At least 60 days prior to the start

of project operation, PPEC will submit a 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 and will make changes to

the final PPEC Biological Opinion consistent herewith. Your timely consideration of these and any

comments provided by EPA and/or the CEC is greatly valued, particularly given Applicant's expectation

of a favorable Final Decision by the CEC and a final PSD permit by EPA Region 9 in the near future.
Mr. Porter

August 23,2012

Page 4

Please do not hesitate to contact me if you

Sincerely,

have any questions or comments regarding these comments.

David Jenkins

CC: (email only)

Gerardo Rios, Region 9 EpA

Roger Kohn, Region 9 EpA

Julie Walters, 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