In addition to SWHA mitigation, MM-BIO-1h requires that the loss of suitable foraging habitat for general raptors within the Project Area be mitigated for at a 1:1 ratio through the purchase of credits at an approved off-site mitigation bank or the permanent preservation of suitable habitat. This will need to be completed prior to the commencement of the Project.
Lastly, MM-BIO-1g requires that a pre-construction survey for nesting raptors be conducted within the Project Area and surrounding 500 feet no more than 14 days prior to the onset of Project activities during the raptor nesting season (January 1 and August 31). If Project activities are also initiated within the nesting season for SWHA (April 1 through September 31), the survey will need to include suitable SWHA nesting habitat within 5 miles of the Project Area.
1.1.3 Rare Plants
WRA conducted two focused rare plant surveys within the Project Area in April 2022. Table 1 below summarizes the special-status plant species identified and mapped during the site visits.
Table 1. Summary of Special-Status Plant Species Mapped within the Project Area in April 2022
SPECIES SCIENTIFIC NAME STATUS POPULATION
ACREAGE
Contra Costa goldfields Lasthenia conjugens Federally Endangered, CNPS Rank 1B.1
0.06 acres
Ferris' goldfields Lasthenia ferrisiae CNPS Rank 4.2 0 acres* saline clover Trifolium
hydrophilum
CNPS Rank 1B.2 0 acres*
1 Department of Fish and Game (CDFW). November 1994. Staff Report Regarding Mitigation for Impacts to Swainson’s Hawks (Buteo Swainsoni) in the Central Valley of California.
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3 bearded popcornflower Plagiobothrys
hystriculus
CNPS Rank 1B.1 0.01 acres (759
SF)
pappose tarplant Centromadia parryi
ssp. parryi
CNPS Rank 1B.2 0.43 acres
*These species were documented with the Open Space Area during the 2022 surveys. However, these species were not documented within the Project Area.
No additional rare plant surveys are required at this time.
Per MM-BIO-1b, preservation credits shall be purchased from an offsite mitigation bank at a 1:1 ratio to mitigate for impacts to occupied Contra Costa goldfield (Lasthenia conjugens) and pappose tarplant (Centromadia parryi ssp. Parryi) habitat. Proof of purchase of preservation credits shall be provided prior to issuance of grading permits for the Project.
The PDEIR does not include species-specific mitigation measures for Ferris’ goldfields, bearded popcornflower or saline clover, nor general mitigation measures for special-status species.
1.1.4 Wetlands
In November 2007, the Army Corps of Engineers (Corps) issued a Preliminary Jurisdictional Determination (PJD) which included the Project Area (Corps File No. 299100N). Distribution of the wetlands and non-wetland waters of the U.S. were preliminarily groundtruthed during a 2020 site visit in support of the Hawthorne Mill and Cooper’s Landing – Biological Constraints Assessment and Permitting Strategy (WRA 2020). The presence of these aquatic features was determined based on field observations made during the January 2020 site visit. Field observations included the presence of identifiable wetland vegetation, wetland hydrology (such as inundation), and topography indicative of where water would collect, such as depressions.
However, the type and extent of aquatic features should be considered preliminary, and a formal delineation of Waters of the U.S. and State should be conducted to confirm presence and extent of potentially jurisdictional features within the Project Area. An updated wetland delineation would also reflect any changes to feature jurisdiction based on the 2023 Conforming Rule, the Environmental Protection Agency (EPA)- and Corp-issued final rule amending the 2023 definition of “Waters of the US” to conform with the recent Supreme Court decision in Sackett v. EPA.
1.2 Additional Regulatory Considerations
The following section addresses any relevant regulatory changes that have occurred since the PDEIR was published and evaluates implications that should be considered in the EIR addendum for the current Project.
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4 1.2.1 Special-status Wildlife
BALD EAGLE
Bald Eagle (BAEA; Haliaeetus leucocephalus) BAEA are known to occur in the vicinity of the Project area (CNDDB 2024), Based on a 2018 CNDDB documented occurrence, BAEA have been reported to roost in a large walnut tree that occurs along the west bank of McCoy Pond, near the eastern boundary of the Study Area (CDFW 2022). While no nest structures or indications of nesting have been observed to date, this tree has potential to provide nesting habitat for this species in the future. Depending on the timing of construction, Project activities including noise, vibration, odors, and movement of workers or equipment could affect nests and have the potential to result in nest abandonment.
As previously noted, MM-BIO-1g requires that a pre-construction survey for nesting raptors be conducted within the Project Area and surrounding 500 feet no more than 14 days prior to the onset of Project activities during the raptor nesting season (January 1 and August 31). In addition, if Project activities are also initiated within the nesting season for SWHA (April 1 through September 31), the survey will need to include suitable SWHA nesting habitat within 5 miles of the Project Area (MM-BIO-1d). It is WRA's opinion that these measures are sufficient to detect BAEA nests given the limited availability of nesting habitat within the Project site and immediate vicinity.
WESTERN POND TURTLE
The PDEIR included the following measure (MM-BIO-1j) to address potential impacts to dispersing western pond turtles (WPT; Actinemys marmorata):
Prior to initiating construction activities within 25 feet of suitable aquatic habitat for Pacific (western) pond turtle, pre-construction surveys shall be conducted. If observed, WPT shall be relocated to a nearby, suitable location away from construction activities.
At the time the PDEIR was published in 2014, WPT was listed as a CDFW Species of Special Concern and could be relocated without the need for additional permits or consultation.
However, this species was proposed as Threatened under the federal Endangered Species Act (ESA) by the U.S. Fish and Wildlife Service (USFWS) on October 3, 2023 (88 FR 68370). Federal proposed species are entitled to procedural protections under the ESA but are not protected from “take” until they are listed. Take as defined under the ESA means "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct." It is anticipated that the final rule for WPT will be issued by the end of 2024. If WPT are listed at that time, any subsequent take (including the relocation described in MM-BIO-1j) would be in violation of the ESA without take authorization from the USFWS.
The PDEIR determined that the perennial aquatic habitats on and adjacent to the Project Area were unlikely to support breeding populations but may provide marginal habitat for dispersal and foraging. However, the evaluation in the PDEIR included numerous aquatic features that are no longer immediately adjacent or necessarily relevant to the current Project. For example, Strassberger Basin, which was deemed as the only location to contain suitable year-round habitat for WPT, is no longer directly adjacent to the Project Area. Given the reduced footprint of WRA, Inc. | 2169 G East Francisco Blvd., San Rafael, CA 94901 www.wra-ca.com · ph: 415.454.8868
5 the current Project Area and considering the new regulatory context, WRA recommends that the EIR addendum re-evaluate potential impacts to WPT, focusing specifically on the suitability of McCoy Basin adjacent to the Project Area and upland habitat within the Project Area.
Based on WRA’s analysis, McCoy Basin is unlikely to support WPT due to its high alkalinity, absence of vegetative cover, and lack of suitable habitat features (e.g., algal mats and basking sites). Additionally, upland habitat within the Project Area does not provide dry, friable soils suitable for nesting adjacent to McCoy Basin. WRA biologists have conducted numerous site visits along McCoy Basin and throughout the Project Area during year-round survey efforts for burrowing owl (Athene cunicularia) and have not detected any WPT individuals along the bank, in adjacent drainage features, or within upland habitat. Given that McCoy Basin is unlikely to support this species and upland habitat within the Project Area is unsuitable for nesting, it’s unlikely that individuals would be present in the Project Area, even for dispersal. As such, no impacts to WPT are anticipated as a result of the proposed Project and the inclusion of MMBIO-1j is not recommended.
CROTCH BUMBLE BEE
Crotch bumble bee (CBB; Bombus crotchii) was reinstated as a state candidate species on September 30, 2022, and is thus afforded protections under the California Endangered Species Act (CESA). As such, impacts to this species will need to be evaluated under CEQA. Impacts to CBB were not evaluated at the time the PDEIR was published in 2014.
Crotch bumble bee occurs in grassland and scrub habitats, and has also been documented in agricultural areas. Like other bumble bee species, CBB is a social species with an annual life cycle. Queens emerge from hibernation in the late winter/early spring to establish a new colony.
The colony produces workers throughout the spring and summer, and reproductives (i.e. drones and queens) in the early fall. Nests are built in pre-existing cavities. They are commonly found underground, in abandoned rodent burrows, or aboveground in grass tufts, rock piles, abandoned bird nests, or tree cavities. CBB feeds on pollen and nectar during all life stages; preferred host species include (but are not limited to) milkweeds (Asclepias spp.), chaenactis (Chaenactis spp.), clarkias (Clarkia spp.), larkspurs (Delphinium spp.), buckwheats (Eriogonum spp.), lupines (Lupinus spp.), medicks (Medicago spp.), bladderpod (Peritoma arborea), phacelias (Phacelia spp.), poppies (Eschscholzia spp.), and sages (Salvia spp.). Queens overwinter in hibernacula; little is known about habitat requirements for hibernacula; bare ground, leaf litter and/or duff, and pre-existing cavities may provide overwintering habitat.
The Project Area is within the current known range of CBB and the nearest documented CNDDB occurrence is approximately 4 miles north of the Project Site. While pre-existing mammal burrows are present along the northeastern boundary of the Project Area, all burrows observed by WRA biologists exhibited fresh sign of ground squirrel occupancy (i.e., droppings, fruit pieces) during burrowing owl surveys in 2023. Additionally, grassland habitat within the Project Area is regularly grazed by cattle and lacks host plants that are known to provide pollen and nectar sources for this species. As such, it in unlikely that the Project Area supports suitable habitat for CBB. No additional avoidance measures for CBB are recommended.
MOUNTAIN LION
Mountain Lion (Puma concolor) was listed as a state candidate species in April 2020, which granted protection under CESA to populations within a proposed evolutionarily significant unit WRA, Inc. | 2169 G East Francisco Blvd., San Rafael, CA 94901 www.wra-ca.com · ph: 415.454.8868
6 (ESU) located in Southern California and the central coast of California. While impacts to mountain lions were not evaluated in the 2014 PDEIR, the Project Area is outside of the current designated ESU range. As such, no additional considerations for mountain lions are required at this time.
BURROWING OWL
On October 15, 2024, burrowing owl was listed as a state candidate species by the California Fish and Game Commission. During the listing review process, burrowing owl will be temporarily afforded the same protections as state-listed species throughout the entirety of California. As such, any projects with potential to result in “take” will need to obtain an Incidental Take Permit (ITP) from CDFW. Under CESA, the term “take” is defined as any effort or attempt to hunt, pursue, catch, capture, or kill an individual. It is assumed that passive relocation (i.e. burrow exclusion) efforts will no longer be allowed without an ITP and CDFW-approval.
Impacts to burrowing owl were evaluated at the time the PDEIR was published in 2014. The mitigation measure for burrowing owl (MM-BIO-1f) requires the following: protocol-level wintering and nesting season surveys to be conducted prior to construction; a pre-construction burrowing owl survey will be performed ahead of ground-disturbance within the Project Area; and, if owls are detected, appropriate measures from the 2012 Staff Report on Burrowing Owl Mitigation (CDFG 2012) will be implemented.
Given the new candidate listing, if any burrowing owls are detected during future survey efforts, the Project may be required to obtain an ITP from CDFW to avoid take liability, and a Burrowing Owl Mitigation Plan may be necessary, in accordance with applicable regulations at the time of project construction. If burrowing owl is no longer a candidate or listed species under CESA at the time of project construction, an ITP will not be required for this species but avoidance measures shall be implemented accordingly.
1.2.2 Aquatic Resources
On August 29, 2023, the EPA and the Corps issued a final rule amending the 2023 definition of “Waters of the US” to conform with the recent Supreme Court decision in Sackett v. EPA. The Conforming Rule limits Federal jurisdiction of wetlands to only those that are adjacent to (touching) relatively permanent, standing or continuously flowing bodies of water. Wetlands isolated from these bodies of water do not meet the Federal definition of wetlands and do not require a Federal Corps permit to fill.
Previously identified Corps-jurisdictional wetlands and non-wetland waters within or immediately adjacent to the Project Area may still be considered Corps-jurisdictional if a hydrological surface connection is present to McCoy Basin or connected drainages. If no surface connection exists, then the aquatic features may still be jurisdictional per the Regional Water Quality Control Board (RWQCB).
The Project has been designed to avoid impacts to potentially jurisdictional features. Given that the most substantive wetland study was conducted in 2007 with subsequent ground truthing confirmation as recent as 2020, a full wetland delineation may be recommended to ensure that no Project impacts to jurisdictional features occur.
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7 1.3 Summary and Recommendations
In summary, additional surveys for BUOW, SWHA, and nesting birds will be required prior to the initiation of the Project. The Project will need to permanently preserve suitable habitat or purchase credits at an approved off-site mitigation bank for impacts to general raptor foraging habitat, per MM-BIO-1h. In addition, SWHA foraging habitat mitigation is required prior to the start of the Project given that recently active nests are documented within 5 miles of the site.
Since the PDEIR was published, the regulatory status has changed for the following species:
western pond turtle, Crotch bumblebee, burrowing owl, and mountain lion. No potentially significant impacts to CBB or mountain lion are anticipated as a result of the Project. Therefore, no additional measures for these species are deemed necessary. A measure for WPT was included in the original PDEIR but is not recommended in the EIR Addendum given that it may not be implementable in the future and is deemed unnecessary given the location of the Project Area. Implementation of the mitigation measures for burrowing owl from the PDEIR will avoid potentially significant impacts. However, if burrowing owls are observed onsite during future surveys, an ITP from CDFW may be required to avoid take lability, and a Burrowing Owl Mitigation Plan may be necessary, in accordance with applicable regulations at the time of project construction. If burrowing owl is no longer a candidate or listed species under CESA at the time of project construction, an ITP will not be required for this species but avoidance measures shall be implemented accordingly.
Lastly, an updated full wetland delineation in the vicinity of the Project is recommended to confirm jurisdictional feature distribution and subsequent Project impact avoidance.
Please contact me with any questions.
Sincerely,
Leslie Lazarotti
WRA, Inc.
[email protected]
Cc: Tommy Dryer
WRA, Inc.
[email protected]
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