Draft General Conservation Plan for the Desert Tortoise in California 18 During the post-issuance phase, the project proponent and any other responsible entities are required to implement the conservation plan in accordance with the terms and conditions of the incidental take permit. The Service monitors compliance with the conservation plan and its long-term progress and success.
National Environmental Policy Act
Federal agencies must comply with NEPA when they undertake discretionary actions. A purpose of NEPA is to ensure that Federal agencies “identify, consider, and disclose to the public relevant environmental information early in the process before decisions are made and before actions are taken” (40 CFR 1500.1(b)). In this case, the Federal action is deciding whether to issue an incidental take permit; the Service’s NEPA compliance consists of an environmental impact statement.
National Historic Preservation Act
Section 106 of the National Historic Preservation Act requires Federal agencies consider the effects of projects they carry out, approve, or fund on historic properties. This process requires consultation with the State Historic Preservation Office and appropriate American Indian tribes.
The implementing regulations for section 106 of the National Historic Preservation Act allow for the federal agency to authorize a project proponent or group of project proponents to initiate consultation regarding compliance with section 106 of the National Historic Preservation Act with the State Historic Preservation Office and Tribal historic preservation offices and others (36 CFR 800.2(c)(4)). Pursuant to the statute and regulations, the Service would remain legally responsible for all findings and determinations regarding historic properties. The Service will notify the State Historic Preservation Office and Tribal historic preservation offices of our intent to apply this authorization under the Plan. The Service will continue to follow its policies regarding government-to-government relationships with federally recognized tribes. We will describe the specific mechanism that the Service will use to comply with section 106 in Section 6 of this Plan.
Other Relevant Laws and Regulations
California Endangered Species Act: The California Endangered Species Act generally parallels the main provisions of the Act and provides for the designation of native species or subspecies of plants, fish, and wildlife as endangered or threatened. Section 2080 of the California Endangered Species Act prohibits the take of state-listed endangered or threatened species but allows for the incidental take of such species resulting from otherwise lawful development projects under section 2081(a) and (b). The desert tortoise is also listed as threatened, candidate endangered, under the California Endangered Species Act by the State of California. Individual project proponents who obtain a Federal incidental take permit for the desert tortoise, pursuant to section 10(a)(1)(B), may request that the Director of the Department find the Federal documents consistent with the California Endangered Species Act. Project proponents under this Plan are encouraged to coordinate with the Department
Draft General Conservation Plan for the Desert Tortoise in California 19 early in the federal permitting process prior to submitting requests for individual section 2080.1 consistency determinations for the desert tortoise to the Department.
California Environmental Quality Act: The California Environmental Quality Act is generally analogous to NEPA in that it requires the completion of an environmental review for projects that may significantly impact environmental resources. It requires public agencies in California to evaluate the environmental impacts of proposed projects, prepare negative declarations, mitigated negative declarations, or environmental impact reports and to consider feasible alternatives and mitigation measures that would substantially reduce significant adverse environmental effects; it also requires state and local agencies to notify the public and review its comments on proposed actions. It applies to a broad range of environmental resources, such as air quality, water, traffic, state and federally listed wildlife and plant species, and sensitive natural communities. We expect that local state land use agencies will review most projects for which project proponents propose to use the Plan under the California Environmental Quality Act.
Local land use agencies within the planning area include, but are not limited to, the counties of San Bernardino, Kern, Los Angeles, Riverside, and Imperial; the cities of Lancaster, Palmdale, California City, Ridgecrest, Hesperia, Adelanto, Barstow, Victorville, and Twentynine Palms; and the towns of Yucca Valley, Joshua Tree and Apple Valley. Several school and water districts also occur within this area. Other agencies of the State of California (e.g., the Department of Water Resources and State Lands Commission) may undertake activities in the planning area.
Covered Species
The desert tortoise is the only species covered under this Plan; therefore, we will only address impacts to and conservation of this species. We describe the desert tortoise further in section 3 of this Plan.
The Service considered whether covered activities could affect other federally listed species, candidate or proposed species, eagles, and migratory birds within the planning area (section 2).
In the past, we have had few instances where a single project in the permit area had the potential to affect federally listed species or critical habitat in addition to the desert tortoise. Project proponents must avoid or receive separate authorization to take other federally protected species that occur within their project areas to meet issuance criteria for participation in the Plan. Failure to comply with the Act for other federally listed species may constitute a violation of section 9; it also could result in suspension or revocation of incidental take permits issued under the Plan.
Failure to comply with other Federal laws and regulations with regard to other federally protected species may also result in prosecution.
Alternatives to the Taking
Section 10(a)(2)(A)(iii) of the Act requires that the project proponent describe “what alternative actions to the taking the applicant considered, and the reasons why such alternatives are not being utilized.” The only alternative to the proposed incidental taking is for project proponents to
Draft General Conservation Plan for the Desert Tortoise in California 20 avoid any actions that could result in take of the desert tortoise. Under this alternative, proponents could modify projects to avoid the take of desert tortoises. Such modifications would likely range from insignificant to substantial changes in project design, timing, or location. For at least some cases, such modifications would not meet the needs of project proponents. Also, desert tortoises move over time; an animal that is outside the project boundary during resource surveys may move to within the project’s boundary at the time of implementation. Complete avoidance of desert tortoises in the planning area is neither practical nor feasible for many activities.
Draft General Conservation Plan for the Desert Tortoise in California 21 Section 2.
Covered Activities
The Plan covers commercial, agricultural, residential, industrial, and infrastructure development on non-federal lands within the planning area and certain existing rights-of-way on federal lands where the federal agency no longer has discretionary authority. We also intend for the Plan to cover operations and maintenance associated with such activities. The Service intends the covered activities to be inclusive; that is, it will consider for coverage any future activity that has the same general effects on the desert tortoise as those described in this Plan. The Service retains the right to recommend that the non-federal entity pursue an individual incidental take permit if the scope of the proposed activity is likely to affect desert tortoises in a manner that we have not considered in this Plan.
We expect that portions of projects that are reasonably certain to take desert tortoises may occur outside the planning area as described in this Plan. For example, a proponent could propose a project that includes suitable desert tortoise habitat within the planning area but extends outside the planning area into areas where desert tortoises are highly unlikely to occur because the habitat is unsuitable. A second example would occur when a project proponent detects desert tortoises beyond areas we consider to be within their current range. In such cases, we would recommend that the project proponent contact us early in their planning process to determine whether use of the Plan is appropriate. To determine whether use of the Plan is appropriate, we would consider whether the proposed action would constitute more than a negligible effect on the desert tortoise. We would also evaluate the extent of the covered activities regarding their potential effects on the human environment. If the overall effect on the desert tortoise is negligible and the Service has adequately evaluated the potential effects on the human environment through NEPA, the Service may allow for use of the Plan. If we determine otherwise, we will recommend that project proponent seek incidental take authorization independent of the Plan, if needed.
All covered activities associated with each project must comply with all the requirements of local and state jurisdictions.
Draft General Conservation Plan for the Desert Tortoise in California 22 Section 3.
Environmental Setting and Covered Species
We derived the following information regarding climate; topography; hydrology and drainages; and existing and surrounding land uses from the California Energy Commission et al. (2014).
Climate
The planning area generally experiences hot, dry summers and mild to cold winters. Annual precipitation ranges from approximately 3 inches in the low deserts (Colorado/Sonoran) to approximately 8 inches in the high deserts and desert ranges (Mojave). The Mojave Desert is a “cold” or winter desert, with about 50 to 70 percent of rainfall occurring during the winter. The Colorado/Sonoran Desert is lower in elevation overall and hotter and drier than the Mojave Desert. In contrast with the Mojave Desert, the lower elevations of the Colorado/Sonoran Desert seldom experience subfreezing temperatures and frost. A substantial portion of the annual rainfall in the Colorado/Sonoran Desert occurs during monsoons from July to late September.
Topography
The topography within the planning area generally ranges from near sea level to approximately 8,700 feet. Most of the planning area ranges from approximately 1,500 to 3,500 feet above mean sea level. The westernmost portion of the planning area is relatively flat (Antelope Valley); most of the planning area contains mountain ranges, alluvial fans, and valleys.
Hydrology and Drainages
Major hydrologic features in the planning area include the Mojave River and numerous closed watersheds that drain to dry lake beds. The planning area also contains numerous washes, some of which are wide and deep.
Existing Land Uses
The planning area includes undeveloped land, active and fallow agricultural lands, and rural and urban development. The undeveloped land encompasses various types of desert scrub habitat; human activities have disturbed some areas of scrub habitat.
Various types of uses and facilities occur in areas where desert tortoises occur. These uses and facilities include but are not limited to mines, compost facilities, renewable energy facilities, communication sites, solid waste disposal facilities, wastewater treatment plants, transmission lines, residences, and prisons.
Numerous roads traverse the planning area. These roads include interstate and state highways, local roads, unpaved but maintained roads, and unpaved and unmaintained roads. Hiking, equestrian, and mountain bike trails also occur in the planning area.
Draft General Conservation Plan for the Desert Tortoise in California 23 The planning area also includes state and local parks. Non-federal lands also support motorized recreation, at least some of which is unauthorized, and other staged recreation events.
Covered Species
The Mojave population of the desert tortoise is the only species addressed in this Plan. This section provides a concise review of pertinent information on the desert tortoise, including a history of its listing, goals for recovery, status and distribution, reasons for its decline, and its recovery needs.
Listing History
The Service listed the Mojave population of desert tortoise (all desert tortoises north and west of the Colorado River in Arizona, Utah, Nevada, and California) as threatened on April 2, 1990 [55 Federal Register 12178].
Recovery Plan
In the revised recovery plan for the desert tortoise, the Service (2011) identified the need for “conservation areas” to protect existing desert tortoise populations and habitat. Box 2 and Figure 2 in the recovery plan (Service 2011) describe and depict these areas in a generalized manner, respectively.
The revised recovery plan lists three objectives and associated criteria to achieve delisting. The first objective is to maintain self-sustaining populations of desert tortoises within each recovery unit into the future. The criterion is that the rates of population change for desert tortoises are increasing over at least 25 years (i.e., a single generation), as measured by extensive, rangewide monitoring across conservation areas within each recovery unit and by direct monitoring and estimation of vital rates (recruitment, survival) from demographic study areas within each recovery unit.
The second objective addresses the distribution of desert tortoises. The goal is to maintain welldistributed populations of desert tortoises throughout each recovery unit; the criterion is that the distribution of desert tortoises throughout each conservation area increase over at least 25 years.
The final objective is to ensure that habitat within each recovery unit is protected and managed to support long-term viability of desert tortoise populations. The criterion is that the quantity of desert tortoise habitat within each conservation area be maintained with no net loss until population viability is ensured.
The revised recovery plan (Service 2011) also recommends connecting blocks of desert tortoise habitat, such as critical habitat units and other important areas, to maintain gene flow between populations. Linkages defined using least-cost path analysis (Averill-Murray et al. 2013) illustrate a minimum connection of habitat for desert tortoises between blocks of habitat and represent priority areas for conservation of population connectivity.
Draft General Conservation Plan for the Desert Tortoise in California 24 Threats
The threats described in the listing rule and both recovery plans (Service 1994, 2011) continue to affect the species. The most apparent threats to the desert tortoise are those that result in mortality and permanent habitat loss across large areas, such as urbanization and large-scale renewable energy projects, and those that fragment and degrade habitats, such as proliferation of roads and highways, off-highway vehicle activity, wildfire, and habitat invasion by non-native invasive plant species.
We remain unable to precisely quantify how particular threats affect desert tortoise populations relative to other threats. The assessment of the original recovery plan emphasized the need for a better understanding of the implications of multiple, simultaneous threats facing desert tortoise populations and of the relative contribution of multiple threats on demographic factors (i.e., birth rate, survivorship, fecundity, and death rate; Tracy et al. 2004).
For example, we have long known that the construction of a transmission line can result in the death of desert tortoises and loss of habitat. We have also known that common ravens (Corvus corax), known predators of desert tortoises, use transmission line pylons for nesting, roosting, and perching and that the access routes associated with transmission lines provide a vector for the introduction and spread of invasive weeds and facilitate increased human access into an area. Increased human access can accelerate illegal collection and release of desert tortoises and their deliberate maiming and killing, as well as facilitate the spread of other threats associated with human presence, such as vehicle use, garbage and dumping, and invasive plants (Service 2011). Changes in the abundance of native plants, because of invasive weeds, can compromise the physiological health of desert tortoises, making them more vulnerable to drought, disease, and predation.
Five-Year Reviews
Section 4(c)(2) of the Act requires the Service to conduct a status review of each listed species once every 5 years. The purpose of a 5-year review is to evaluate whether the species’ status has changed since listing (or since the most recent 5-year review); these reviews, at the time of their completion, provide the most up-to-date information on the range-wide status of the species.
The Service’s (2022) second 5-year review of the status of the desert tortoise summarizes the information from its initial 5-year review (Service 2010) and “describes substantive new information since 2011 [from the release of the updated recovery plan] relative to changes in threats, conservation measures, and regulatory mechanisms that pertain to the five listing factors outlined in section 4(a)(1) of the Act.” For this reason, we are incorporating the 5-year review of the status of the desert tortoise (Service 2022) by reference to document information related to the status of the desert tortoise. Because it contains background information that is not in the most recent 5-year review, we have also incorporated the 2010 5-year review by reference. The following paragraphs provide a summary of the relevant information for the Plan. All references to “the 5-year review” in this section are to the most recent document (Service 2022), unless otherwise noted.
Draft General Conservation Plan for the Desert Tortoise in California 25 The 5-year review is replete with references to numerous studies and reports. We have not included references to those studies and reports in the following summary; the full citations are available in the 5-year review.
In the 5-year review, the Service discusses the status of the desert tortoise as a single distinct population segment and summarizes that “… habitat occupied by the Mojave [distinct population segment] is relatively continuously distributed, and genetic differentiation within the [distinct population segment] is consistent with isolation-by-distance in a continuousdistribution model of gene flow.” The 5-year review also notes that the Mojave distinct population segment of the desert tortoise was elevated to species status as Gopherus agassizii, with most desert tortoises east of the Colorado River recognized as G. morafkai. The 5-year review notes that “nine local populations that include G. agassizii or hybrids with G. morafkai have been genetically identified east of the Colorado River in Arizona.” The 5-year review recommends evaluating the federal listing status of the Mojave desert tortoise relative to its current taxonomy and distribution.
In the 5-year review, the Service concluded that the “condition of most threats is similar to that described in the previous [2010] status review” and summarized the new information within the context of the five listing factors outlined in section 4(a)(1) of the Act. We summarize that information below.
Factor A: Present or Threatened Destruction, Modification, or Curtailment of Habitat or Range
Various types of anthropogenic impacts continue to cause the loss of desert tortoise habitat.
The Service has issued biological opinions or incidental take permits for approximately 74,000 acres of utility-scale solar energy development in occupied desert tortoise habitat. Solar development has largely occurred outside of desert tortoise conservation areas, as described in the recovery plan (Service 2011).
The 5-year review also describes the Marine Corps’ expansion of training onto approximately 167,982 acres of public and private land and the Department of Army’s plans to expand activities onto approximately 62,045 acres of its western training area in the near future. These activities are in the Western Mojave Recovery Unit.
Legal and illegal cannabis cultivation is causing smaller scale, more widely distributed losses of habitat, particularly in the Western Mojave Recovery Unit; illegal operations are likely to indirectly affect additional habitat because of various types of waste they generate.
Wildfires fueled by invasive grasses have burned extensive areas of desert tortoise habitat. For example, fires in 2020 occurred in desert tortoise habitat in the Mojave National Preserve (Dome Fire, 43,273 acres), Nevada (Meadow Valley Fire, 23,500 acres), and the Red Cliffs Desert Reserve in the Upper Virgin River Recovery Unit (11,000 acres in several fires). The latter fire killed at least 25 desert tortoises.
The 5-year review notes that desert tortoises are “essentially absent” from habitat within 1 kilometer of areas with greater than 10 percent development; “development” includes urban
Draft General Conservation Plan for the Desert Tortoise in California 26 areas, cultivated agriculture, energy facilities, mines and quarries, pipelines, transmission lines, roads and railroads. Approximately 5 percent of modelled desert tortoise habitat within conservation areas had development levels that exceeded this threshold. See Table 3 and Figure 7 in the 5-year review. Desert tortoise populations declined in conservation areas where the density of paved and unpaved roads exceeded 0.75 kilometer per square kilometer; population trends varied at lower densities of roads. See Figure 8 in the 5-year review.
Of the threats discussed for Factor A, solar development likely directly affects the largest number of desert tortoises. Since approximately 2010, the Service (unpublished data) has estimated that solar development would affect approximately 19,900 desert tortoises in its biological opinions and incidental take permits. We used various methodologies to arrive at that estimate. In some cases, we included the estimated number of small desert tortoises, which likely far exceeded the numbers of individuals present. To date, 661 desert tortoises have been observed at these project sites; the potential exists that some desert tortoises, particularly small individuals died during construction of the projects, but were not detected.
Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes
The 5-year review notes that the Service has little new information on threats related to this factor. Mortalities on paved and unpaved roads and the collection and deliberate maiming of desert tortoises remain threats.
Factor C: Disease or Predation
The 5-year review notes that “current research suggests that direct disease management of wild [desert] tortoise populations is less important … than managing factors that affect their habitat and its capacity to support healthy [desert] tortoises.” However, management of disease when translocating desert tortoises between populations remains important. As an example of managing habitat, red brome (Bromus rubens), which is a non-native invasive plant, negatively affects the health and survival of juvenile desert tortoises.
Badgers (Taxidea taxus), coyotes (Canis latrans), kit foxes (Vulpes macrotis), dogs (Canis familiaris), common ravens, and red-tailed hawks (Buteo jamaicensis) prey on desert tortoises.
Badgers can have severe effects on desert tortoise populations at the local level; DNA analysis of scats suggest that badgers, coyotes, kit foxes, dogs, and red-tailed hawks may prey on desert tortoises more frequently than previously thought.
Common ravens, because their populations have greatly increased through human subsidies, severely affect the recruitment of desert tortoises into the breeding population through predation on small individuals. In California, management includes the broad-scale removal of common ravens from critical habitat of the desert tortoise.
Factor D: Inadequacy of Existing Regulatory Mechanisms
The Bureau continues to face challenges in managing compliance with use of its off-highway vehicle network in the Western Mojave Recovery Unit. As of 2019, the Bureau documented
Draft General Conservation Plan for the Desert Tortoise in California 27 24,518 kilometers of ground transportation linear features in this area, which is more than 2.5 times the 9,651 kilometers designated as open or limited. The Bureau has an active program of restoring unauthorized routes and signing open routes.
Unauthorized cattle grazing continues within the Gold Butte National Monument in Nevada.
We discussed cannabis cultivation in California previously in this section.
Factor E: Other Natural or Manmade Factors Affecting its Continued Existence The 5-year review notes that, in the southwestern United States, 2000 through 2021 was the driest 22-year period in over 1,200 years; drought is likely to continue beyond 2022.
Drought reduces the amount of annual plant forage for desert tortoises and, over longer times, will kill shrubs that desert tortoises rely on for cover.
Increased temperatures may affect hatchling sex ratios. Changes in climate may shift the timing of egg production and extend the egg-laying period. This change in egg production may not compensate for changes in the environment, such as the length of time eggs spend above their critical thermal maximum temperature and whether forage is available to support the production of eggs and forage for hatchlings. If climate change results in an overall decrease in reproduction, human-subsidized predation on young desert tortoises, particularly by common ravens, would exacerbate issues with the recruitment of desert tortoises into the breeding population.
Synthesis
The Management Oversight Group for the desert tortoise “has taken steps to prioritize and implement actions that would be most effective at facilitating recovery across the range.” The Departments of Defense and the Interior have initiated a Recovery and Sustainment Partnership with the goal of implementing actions that would accelerate recovery of the desert tortoise while reducing the regulatory burden on military installations. The action plan focuses on identifying ways to accelerate habitat restoration, fencing conservation areas and roadways, and addressing unauthorized routes in the Western Mojave Desert Recovery Unit.
In California, the Bureau’s (2016) Desert Renewable Energy Conservation Plan Land Use Plan Amendment to the California Desert Conservation Act Plan included numerous conservation and management actions that addressed issues relevant to the desert tortoise. As part of the land use plan amendment, the Bureau established new limits on ground-disturbing activities of 0.1–1.0 percent relative to its lands within desert tortoise conservation areas and mapped linkages between these areas. The land-use plan amendment also increased the amount of land that the Bureau manages for conservation in California (e.g., areas of critical environmental concern, California Desert National Conservation Lands, etc.) from 6,118,135 to 8,689,669 acres. Not all of these areas are within desert tortoise habitat; however, management as conservation areas will likely benefit desert tortoises indirectly because conservation management would limit subsidies to common ravens and other indirect effects.
The threats that led to the listing of the desert tortoise (i.e., the five-factor analysis required by section 4(a)(1) of the Act) continue. The status of the desert tortoise has continued to decline
Draft General Conservation Plan for the Desert Tortoise in California 28 and most of the previously identified threats continue to affect populations. Given the reproductive ecology of the desert tortoise, measurable increases in the size of populations will require years.
In the 5-year review, the Service concluded by recommending that the status of the desert tortoise as a threatened species be maintained because of the large extent of its range and a total number in the “hundreds of thousands of individuals (all size classes) at last estimation.” Recommendations for Future Actions
The 5-year review provided eight recommendations for the highest priority actions over the next 5 years. These recommendations are from the revised recovery plan (Service 2011); their full text is in the 5-year review.
1. More aggressive implementation of habitat restoration, targeted predator control and limitation of subsidies, fencing priority stretches of highways, fire management planning and implementation, and environmental education;
2. Maintaining landscape connectivity and the resilience of desert tortoise conservation areas by managing all desert tortoise habitat for persistence and connectivity, limiting landscape-level disturbance across habitat managed for the desert tortoise by extending surface-disturbance caps similar to those enacted by the Bureau in California to the rest of the Mojave desert tortoise’s range, maximizing passage under roads, and adapting management based on information from research on: the effects of climate change on desert tortoise habitat, distribution, and population connectivity; the effects of large-scale fires, especially within repeatedly burned habitat, on desert tortoise distribution and population connectivity; the ability of solar energy facilities or similar developments to support desert tortoise movement and presence by leaving washes and native vegetation intact; and the design and frequency of underpasses necessary to maintain functional demographic and genetic connectivity across roads and highways;
3. Increasing law enforcement efforts across the range of the desert tortoise, especially within conservation areas to minimize impacts of habitat destruction and degradation as a result of unauthorized off-highway vehicle use, unpermitted cannabis farms, and trespass grazing;
4. Using population augmentation to help achieve recovery criteria in each of the five recovery units according to the Service’s population augmentation strategy;
5. Updating the taxonomy, distribution, and listed status of the species, which we discussed previously in this section;
6. Incorporating updated population trend analysis and climate change and landuse modeling into the next 5-year review to inform management strategies under a framework for ecological adaptation;
Draft General Conservation Plan for the Desert Tortoise in California 29
7. Sustaining and more fully implementing range-wide monitoring efforts; and
8. Developing a revised spatial decision support system to improve models of threats, recovery actions, and demographics, using up-to-date underlying geospatial data, evaluation of prior conceptual models, and improved operationalization of recovery action terminology.
Reproduction, Numbers, and Distribution
Section 10(a)(2)(B) of the Act requires, among other issuance criteria for an incidental take permit, that the Service determine whether the taking associated with the proposed action will appreciably reduce the likelihood of the survival and recovery of the species in the wild. The Service conducts this analysis through an internal consultation, pursuant to section 7(a)(2) of the Act. Through the consultation process, when determining whether a proposed action is likely to jeopardize the continued existence of a species, we are required to consider whether the action would “reasonably be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species” (50 CFR 402.02). We consider the requirement at section 10(a)(2)(B) to function the same as the jeopardy analysis conducted under section 7(a)(2). Below we summarize the status of the desert tortoise with respect to its reproduction, numbers, and distribution.
Reproduction
In the previous 5-year review, the Service (2010) notes that desert tortoises increase their reproduction in high rainfall years; more rain provides desert tortoises with more high-quality food (i.e., plants that are higher in water and protein), which, in turn, allows them to lay more eggs. Conversely, the physiological stress associated with foraging on food plants with insufficient water and nitrogen may leave desert tortoises vulnerable to disease and the reproductive rate of diseased desert tortoises is likely lower than that of healthy animals. Young desert tortoises also rely upon high-quality, low-fiber plants (e.g., native annual plants) with nutrient levels not found in the invasive weeds that have increased in abundance across its range. Compromised nutrition of young desert tortoises likely represents an effective reduction in reproduction by reducing the number of animals that reach adulthood. Consequently, although we do not have quantitative data that show a direct relationship, the abundance of weedy species within the range of the desert tortoise has the potential to affect the reproduction of desert tortoises and recruitment into the adult population in a negative manner.
Various human activities have introduced numerous species of non-native invasive plants into habitat of the desert tortoise. Routes that humans use to travel through the desert (paved and unpaved roads, railroads, motorcycle trails, etc.) serve as pathways for new species to enter habitat of the desert tortoise and for species that currently occur there to spread. Other disturbances of the desert substrate also provide invasive species with entry points into the desert. The abundance and distribution of invasive weeds may compromise, at least to some degree in localized areas across its range, the reproductive capacity of the desert tortoise; the
Draft General Conservation Plan for the Desert Tortoise in California 30 continued increase in human access across the desert likely continues to facilitate the spread of weeds and further affect the reproductive capacity of the species.
Numbers
In the previous 5-year review, the Service (2010) discussed various means by which researchers have attempted to determine the abundance of desert tortoises and the strengths and weaknesses of those methods. Due to differences in area covered and especially to the non-representative nature of earlier study sites, data gathered by the Service’s current rangewide monitoring program cannot be reliably compared to information gathered through other means at this time.
Range-wide monitoring from any single year samples a portion of the desert tortoise conservation areas; the conservation areas comprise only a portion of the recovery units.
Additionally, any single-year estimate of the number of desert tortoises should be viewed as a snapshot that several variables likely influence. Consequently, considering trends derived from years of range-wide monitoring provides a more accurate view of the status of desert tortoise populations.
Allison and McLuckie (2018) used annual density estimates obtained from range-wide monitoring from 2004 through 2014 to evaluate range-wide trends in the density of desert tortoises over time. Allison and McLuckie (2018) extrapolated the densities of large desert tortoises derived by range-wide monitoring in the conservation areas to all modeled habitat in the recovery unit; the abundance columns in Table 1 contain these extrapolated numbers, which overestimate the number of desert tortoises.
Table 1. Change in desert tortoise abundance in recovery units (Allison and McLuckie 2018)*.
Recovery Units Modeled
Habitat (km2)
Conservation
Area (km2)
2004
Abundance
2014
Abundance
Annual
Trend
(percent)
Western
Mojave
23,139 6,873 131,540 64,871 -7.1
Colorado
Desert
18,024 13,530 103,675 66,097 -4.5
Northeastern
Mojave
10,664 4,889 12,610 46,701 13.1
Eastern
Mojave
16,061 3,720 75,342 24,664 -11.2
Upper Virgin River 613 115 13,226 10,010 -3.2
Total 68,501 29,127 336,393 212,343
* Allison and McLuckie (2018) used modeled habitat within the entire range of the desert tortoise for this estimate.
Draft General Conservation Plan for the Desert Tortoise in California 31 Distribution
We discussed specific activities that have resulted or will result in the loss of desert tortoise habitat in the Factor A section above. Here, we summarize their overall effect on the distribution of the desert tortoise.
The 5-year review notes that the absolute amount of desert tortoise habitat range-wide decreased by approximately 163,700 acres between 2005 and 2017, based on changes in LandSat imagery. However, several utility-scale solar energy developments have been approved or constructed since 2017; additionally, LandSat imagery would not detect areas from which desert tortoises have been or will be translocated that have not undergone changes in vegetation to date.
Attempting to quantify the amount of habitat lost is difficult because of the varying methods used in studies. Also, models depicting desert tortoise habitat cannot differentiate between areas where desert tortoise populations maintain the ability to recruit young animals to breeding age and areas where recruitment has likely not occurred for years.
In summary, human activities have continued to reduce the distribution of the desert tortoise.
Most of the losses of habitat have occurred outside of desert tortoise conservation areas, with the exception of those associated with Fort Irwin. The large size of the potential range of the desert tortoise and difficulties associated with determining areas that it actually occupies within that area (i.e., not including areas from which it has been extirpated or that are unsuitable habitat) precludes quantifying its distribution with precision.
Critical Habitat of the Desert Tortoise
The permit area for the Plan does not include any areas that the Service designated as critical habitat for the desert tortoise. Consequently, the Service would not issue any incidental take permits based on this Plan for proposed actions that occur within the boundaries of critical habitat of the desert tortoise.
The potential exists that a proposed action outside the boundaries of critical habitat could affect off-site critical habitat in some manner. We will evaluate every application for an incidental take permit with regard to this potential. If we identify the potential for such an effect, we will discuss it with the project proponent. If we cannot remove or mitigate the adverse effect through these discussions, the Service would decline to evaluate that proposed action under the Plan and would recommend that the project proponent pursue a separate incidental take permit. The nature of the effects to adjacent critical habitat would influence whether mitigation of the adverse effects at a higher ratio (such as that in effect for the land management plan for that area) or applying for a separate incidental take permit would be appropriate.
Some proposed actions are likely to occur along non-federal rights-of-way within the boundaries of critical habitat of the desert tortoise. In our experience, past activities in these rights-of-way have disturbed the physical and biological features of critical habitat. During our review of specific proposed actions along non-federal rights-of-way within critical habitat, we would
Draft General Conservation Plan for the Desert Tortoise in California 32 consider the condition of the physical and biological features. In areas where habitat conditions are not now suitable for the conservation of desert tortoises, use of the Plan by project proponents would be appropriate. As noted previously in this document, the Service would decline the use of the Plan in any situation that falls outside its standards and sideboards.
Mitigation for the incidental take of desert tortoises will occur within desert tortoise conservation areas (Service 2011), including critical habitat. These actions would include the acquisition and management of lands and various other activities designed to conserve desert tortoises. The acquisition of lands would not cause the take of desert tortoises; the management of acquired lands and the implementation of other mitigation activities (e.g., restoration of habitat, fencing of roads, etc.) have some potential to take limited numbers of desert tortoises and may be addressed through a recovery permitting process (i.e., section 10(a)(1)(A) of the Act) or consultation under section 7 of the Act associated with this Plan, through existing permits and consultations, or through separate project-specific processes.
For these reasons, the Plan does not address effects to critical habitat of the desert tortoise.
Consequently, we have not included a review of the status of critical habitat in this document.
Draft General Conservation Plan for the Desert Tortoise in California 33 Section 4.
Biological Impacts and Take Assessment
The development of land is likely to kill or injure any desert tortoises that reside in the area where work would occur. The Service and other agencies that have worked with the desert tortoise since its listing have developed measures to minimize the number of animals that development activities are likely to kill or injure.
In the following paragraphs, we will evaluate the potential effects on the desert tortoise of the issuance of incidental take permits under this Plan and assess the amount of incidental take that we anticipate may occur.
Loss of Individuals during the Disturbance or Conversion of Habitat The disturbance or conversion of habitat for various uses in the desert usually involves heavy equipment. This equipment can crush desert tortoises that are either above ground or in their underground burrows. It can also collapse occupied burrows and trap desert tortoises inside. The collapse of unoccupied burrows removes shelter sites upon which desert tortoises depend; the loss of shelter sites leaves desert tortoises vulnerable to temperature extremes and predators.
Based on our experience with past development projects, biologists are able to translocate or move most desert tortoises to outside work areas. If surveys fail to detect desert tortoises prior to the onset of ground-disturbing activities, they are likely to die during construction, although project workers occasionally detect individuals during construction. Smaller desert tortoises (i.e., those smaller than 180 millimeters) are more difficult to detect; therefore, project activities are more likely to kill or injure smaller individuals. We will discuss these potential outcomes in the following sections.
Moving Desert Tortoises from Harm’s Way and Translocation Moving desert tortoises from harm’s way involves transporting individuals from the immediate area of an activity that is likely to injure or kill the animals to nearby habitat that is likely within or very near the individual’s territory; that is, the moved desert tortoise very likely is familiar with the area to which it was moved. Depending on the nature of the activity, biologists monitoring the project approved by the Service may move desert tortoises up to several hundred feet from the activity.
No one has studied the effects of moving desert tortoises from harm’s way. We expect that the placement of the desert tortoise up to several hundred feet from its original location is not likely to adversely affect individuals because they are likely still within their home range. (That is, they remain where they are familiar with local resources, such as areas to forage and seek shelter.) Handling desert tortoises can cause them to void their bladders, which they use to store water.
Averill-Murray (2002) found that desert tortoises that voided their bladders had lower survival rates than those that did not. Careful handling while moving desert tortoises from harm’s way can reduce the likelihood of their voiding their bladders. Because moving desert tortoises from
Draft General Conservation Plan for the Desert Tortoise in California 34 harm’s way does not involve excessive handling and anyone who does so will receive instruction beforehand, we expect that desert tortoises voiding their bladders is likely to occur infrequently.
Also, approved biologists can provide desert tortoises with water if they void their bladders; many desert tortoises readily accept provided water.
This method of protecting desert tortoises from project activities is more likely to occur along existing rights-of-way where Federal discretionary authority is not present. We expect that project proponents would rarely use this method within the western Mojave Desert because Federal agencies do not manage most lands in that area; in such areas, project proponents would be unable to move desert tortoises from harm’s way without placing them on another landowner’s property.
Translocation involves the movement of desert tortoises from their territories within the work area to suitable habitat outside of their home ranges; the recipient sites for translocated desert tortoises may be miles from the project site. Project proponents in the western Mojave Desert are likely to translocate numbers of desert tortoises to augmentation sites on lands managed for conservation.
One of the strategic elements in the recovery plan for the desert tortoise (Service 2011) is the augmentation of depleted populations with conservation areas. The Service is currently working with the U.S. Geological Survey to identify specific augmentation sites that meet specific criteria; we discuss augmentation later in this section. In the interim, prior to the establishment of specific augmentation sites, the Service would direct project proponents to translocate desert tortoises to general areas that meet these criteria on a case-by-case basis, in coordination with the land manager.
In recent years, agencies and project proponents have translocated numerous desert tortoises from military training areas, solar projects, and construction sites. Many of these translocations involved various studies to evaluate how the movement affected resident and translocated desert tortoises in relation to control animals. Resident desert tortoises are those animals within their home ranges with translocated individuals nearby; control desert tortoises are animals within their home ranges with no translocated individuals nearby. The Service (2017a, b) has summarized various studies regarding the effects of translocation on desert tortoises and Dickson et al. (2019) evaluated the results of a multi-year study of translocation on desert tortoises from the site of a solar project. We have incorporated those analyses into this Plan and will not repeat that information here.
In general, studies demonstrate that translocated, resident, and control desert tortoises do not differ significantly in survival rates, levels of stress hormones, movements, susceptibility to predation, and other aspects of behavior. In some cases (e.g., movement patterns), the behavior pattern of translocated desert tortoises resembled those of controls and residents after 2 to 3 years. Consequently, we conclude that translocation is an effective tool for protecting desert tortoises, if those conducting the translocation follow specific protocols designed to increase the chance of success. These protocols include translocating desert tortoises only during appropriate times of the year (i.e., when they are active), only into suitable habitat, and with appropriate consideration of disease issues.
Draft General Conservation Plan for the Desert Tortoise in California 35 The Service will consider disease when directing project proponents to translocate desert tortoises. To the best of our knowledge, no wild desert tortoise population is free of disease; Rideout (2015) notes that no wildlife populations are completely free of disease. Consequently, the Service’s goal is to ensure that translocated desert tortoises do not affect the prevalence of disease in a negative manner among recipient populations. To achieve this goal, we will use our most recent protocol with regard to management of disease, including the use of an algorithm to determine whether translocation of any individual is appropriate and an evaluation of the recipient sites to ensure that the sites do not show evidence of an active outbreak of disease (Service 2019).
Figure 4 Translocation algorithm from Service (2019).
We expect that new information regarding the management of diseases will emerge over time.
We will modify the management of disease when new information is available, through coordination with the Service’s Desert Tortoise Recovery Office.
Augmentation of Depleted Populations
The revised recovery plan for the desert tortoise (Service 2011) notes that the Service considers population augmentation as a necessary recovery tool because of “appreciable declines of … populations across the range.” We have proposed to approach this strategy experimentally, “in terms of both the continued development and evaluation of techniques and through the use of augmentation to help assess specific threats and recovery actions” (Service 2011). In situations where we can achieve greater conservation benefit for the desert tortoise, the terms and conditions of our incidental take permits will require project proponents to move desert tortoises to designated augmentation sites within conservation areas.
Relatively few desert tortoises are likely to undergo translocation because of this Plan. We have reached this conclusion because, since the listing of the desert tortoise in 1990, we have issued approximately 14 incidental take permits for the desert tortoise in the planning area. With the exception of the incidental take permit for the Hyundai Test Facility in Kern County (Sundance Biology 2006; 27 desert tortoises), our issuance of incidental take permits has resulted in the translocation of few desert tortoises. In several cases, the project proponents either did not proceed with the permitted project or did not take any desert tortoises during implementation.
Draft General Conservation Plan for the Desert Tortoise in California 36 Table 1 depicts the incidental take permits that the Service issued that resulted in the take of desert tortoises.
Table 1. Section 10(a)(1)(B) Projects That Resulted in the Incidental Take of Desert Tortoises in California.
Project Year Issued Location and
County Acres
Number of
Desert
Tortoises
Found Onsite1
Borax 1999 Boron,
Kern
3,465 1
Hyundai Test
Track
2004 California City,
Kern
4,498 27
Copper
Mountain
College
2007 Near Joshua
Tree, San
Bernardino
267 ~5
Cinco Solar 2013 Near Cantil,
Kern
500 3
High Desert
Solar
2019 Victorville, San
Bernardino
580 8
Pacific Gas and
Electric
2019 Near Hinkley,
San Bernardino
1,3792 0
California City
Prison
1998 California City,
Kern
425 1
AGCON 2010 Oro Grande, San
Bernardino
120 2
Bellefield Solar
Energy Project
2022 Mojave, Kern 8,571 53
Total - - 19,805 ~52 1 This column represents the number of desert tortoises that were found onsite and translocated or moved from harm’s way. We are unaware of any desert tortoises that have died because of project activities conducted under section 10(a)(1)(B) permits in the planning area. 2 This acreage reflects the acreage of anticipated habitat disturbance over the life of the incidental take permit (CH2MHill Engineers 2019). No desert tortoises have been killed, injured, or captured to date (Arcadis U.S. 2022). 3 The project proponent has not cleared the entire site to date and has found five to date. Biologists found five large desert tortoises during surveys (Stantec 2022).
We expect that incidental take permits issued through this Plan may cause an increase in the number of translocations and movements from harm’s way to a small degree as developers use the expedited process to take desert tortoises, primarily in the form of capture, rather than altering project boundaries to avoid a few individuals. For this reason, we expect that the issuance of this Plan is likely to have a minor and possibly undetectable positive effect on the augmentation of depleted populations.
Draft General Conservation Plan for the Desert Tortoise in California 37 Because this Plan will also apply to the maintenance of infrastructure by public works agencies, we also expect that project proponents may move desert tortoises from project sites onto adjacent federal lands. Whether such short-distance movements constitute augmentation of depleted populations would be determined on a case-by-case basis.
Impact Analysis regarding Incidental Take of Desert Tortoises No one conducts comprehensive monitoring of desert tortoises on non-federal lands in the permit area. Consequently, the Service does not have information on the abundance of desert tortoises in this area. However, the permit area likely supports relatively few desert tortoises. We have reached that conclusion based on the results of surveys conducted for incidental take permits that we have issued in the past and the results of other surveys. In general, the permit area is closer to existing development. Desert tortoises in those areas have been subject to the direct and indirect effects of numerous human activities for decades.
Overall, implementation of the Plan would likely not result in the incidental take of numerous desert tortoises because relatively few desert tortoises remain in the permit area. We also anticipate that most incidental take under the Plan would occur in the form of capture (i.e., capture is a form of take defined in the Act) when project proponents translocate desert tortoises from project sites to conservation areas or move them from harm’s way along non-federal rightsof-way within conservation areas.
Experience from range-wide monitoring for desert tortoises demonstrates that surveyors generally detect most individuals that are 180 millimeters or more in length when they are above ground. For the purposes of this discussion, we will refer to individuals that have a midline carapace length of 180 millimeters or longer as “large” desert tortoises; we will refer to desert tortoises with shorter midline carapace lengths as “small” desert tortoises.
Based on our experience, we expect that the implementation of projects under the Plan is likely to result in death or injury of few large desert tortoises because biologists find and translocate or move from harm’s way most of those individuals. If biologists do not find a desert tortoise during a project’s clearance surveys, it is likely to be killed or injured by construction equipment.
Small desert tortoises are more likely to escape detection; hatchlings, which are approximately 50 millimeters long, are especially difficult to detect. However, we expect that the permit area supports relatively few small desert tortoises. For example, 8minute Solar Energy found 5 desert tortoises on approximately 8,000 acres of the site of the Bellefield Solar Energy Project from 2019 to 2021. This site is located northwest of the town of Mojave. The smallest desert tortoise found in this effort was a female that was 240 millimeters long. A female desert tortoise of this size is likely to be from 30 to 45 years old, although some females never reach this size (Medica et al. 2012). Given that age range, we can calculate that she hatched between 1976 and 1991. No desert tortoises between 180 and 240 millimeters were found in this same survey of Bellefield, even though detection probability among these size-age classes is uniform (Alison and McLuckie 2018). This gap in demography indicates that consistent recruitment into adult age classes at the Bellefield site has been intermittent or nonexistent since at least 1990, evidenced by the lack of individuals observed in the size-age classes of 17 to 20, 20 to 35, and possibly 35 to 45 years.
Draft General Conservation Plan for the Desert Tortoise in California 38 At the Hyundai site, which is located immediately to the east of the Bellefield site, Vaughn (2006) translocated 28 desert tortoises from approximately 4,290 acres in 2003 and 2004. The smallest desert tortoise found in this effort was a 227-millimeter female. In 2017 and 2018, the site of the High Desert Solar Project, which is located north of Victorville, supported 7 large desert tortoises and a hatchling; the smallest large individual was 236 millimeters long (Guigliano 2021). Considered collectively, survey results from 2004 and 2021 most likely indicate that relatively few small desert tortoises occur in the permit area.
The Service cannot predict how many desert tortoises are reasonably certain to be taken by projects under the Plan because we do not know how many project proponents will apply for incidental take permits, the specific locations of those projects, or the number of desert tortoises on each project site. Of the desert tortoises taken, we do not know how many are likely to be killed or injured. To ensure that the Plan succeeds in terms of minimizing the number of desert tortoises that are killed during project activities, the Service will evaluate the circumstances of each reported mortality to determine whether the project proponent was fully implementing the minimization measures. If our evaluation demonstrates that the minimization measures were not fully implemented, the Service will work with the project proponent to resolve the pertinent issue; if the project proponent is not responsive, the Service will initiate procedures to suspend or revoke that specific incidental take permit. If we determine, through the evaluation, that the project proponent was fully implementing the minimization measures, but additional or somewhat different measures are needed, the Service will work with the project proponent to develop supplementary minimization measures to correct the identified issue.
To date, we are unaware of any large desert tortoises that have died during the implementation of a project covered by an incidental take permit in California. The lack of mortalities likely reflects the few desert tortoises that biologists have encountered while implementing the projects and the effectiveness of the minimization measures project proponents use to protect desert tortoises. We acknowledge that a few desert tortoises, likely smaller ones, were likely killed but were not detected.
Given the uncertainties we have outlined in this section of the Plan, we cannot predict the number of desert tortoises that projects may kill under the Plan. We fully expect the cumulative number to be low because of the relatively few desert tortoises that occur in the permit area and the fact that qualified biologists will find most large desert tortoises and remove them from the project sites. To ensure that implementation of the Plan meets our expectations in terms of protecting desert tortoises, the Service will track the amount of incidental take permitted for each activity under the Plan through the approval of incidental take permits. If five large desert tortoises die because of activities for which incidental take was permitted under this Plan in any calendar year, the Service will first assess the adequacy of the minimization measures in the Plan. If administrative changes to the minimization measures in the Plan, or the specific measures associated with the individual incidental take permits, are not practical, we will not approve additional incidental take permits in that calendar year unless we amend the Plan. We will notify the public of any revisions to the Plan that may involve additional impacts to the desert tortoise through a notice in the Federal Register.
Draft General Conservation Plan for the Desert Tortoise in California 39 Consequently, the Service will evaluate each individual incidental take permit with regard to the results of surveys for desert tortoises and the nature of the proposed action and include a limit on the number of desert tortoises that it authorizes as take in the form of mortality. We will then track the amount of take that occurs through each project’s reporting and cumulatively by evaluating annual reports.
Project proponents may injure desert tortoises during the implementation of their projects. Each incidental take permit will include directions to provide veterinary care to injured desert tortoises at the expense of the project proponent. Injured desert tortoises that recover fully will be returned to the wild. The Service will consider injured desert tortoises that cannot be returned to the wild after treatment as mortalities that accrue under the project’s incidental take permit. Project proponents must contact the Service to determine the final disposition of all injured desert tortoises.
In summary, the implementation of the Plan would likely result in the translocation or movement from harm’s way of a relatively small number of desert tortoises from project areas; an even smaller number of desert tortoises are likely to die as result of projects that receive an incidental take permit from the Service under the Plan. The few desert tortoises that are likely to die would comprise a small fraction of the number of desert tortoises within the range of the species.
Prior to the issuance of incidental take permits through this Plan, the Service must consult internally, pursuant to section 7(a)(2) of the Act, regarding the effects of the proposed action (i.e., the use of the Plan) on the desert tortoise. The purpose of that formal consultation is to determine whether use of the Plan is likely to jeopardize the continued existence of the desert tortoise. We will base the analysis in the internal consultation on the definitions and metrics described in the implementing regulations for section 7(a)(2) of the Act (50 CFR Part 402).
Draft General Conservation Plan for the Desert Tortoise in California 40 Section 5.
|Conservation Program/Measures to Minimize and Mitigate for Impacts Biological Goals and Objectives
Section 10(a)(2)(A) of the Act requires that a general conservation plan specify the measures that the project proponent will take to minimize and mitigate the impacts of the taking of any federally listed wildlife species as a result of covered activities addressed by the plan.
Conservation plans must establish biological goals and objectives. The purpose of the biological goals is to ensure that the operating conservation program in the conservation plan is consistent with the conservation and recovery goals established for the species. The goals are also intended to provide to the project proponent an understanding of why these actions are necessary. We developed these goals based upon the biology of the desert tortoise, threats to the species, the potential effects of the covered activities, and the scope of the Plan.
Goal 1: Minimize take of desert tortoises within the project areas.
Objective 1.1 Minimize the potential for the take of desert tortoises because of covered activities.
Objective 1.2 Remove any desert tortoises from impact areas by performing surveys prior to and, if necessary, during implementation of the activity, and translocate any individuals to approved suitable habitat within conservation areas.
Goal 2: Mitigate the effects of take to help meet recovery criteria and/or support long-term viability of the desert tortoise.
Objective 2.1 To mitigate impacts on the desert tortoise, project proponents will acquire, restore, and/or manage habitat to ensure conservation benefits for the desert tortoise within conservation areas. Conservation benefits include measures to reduce the mortality of desert tortoises (e.g., installation of highway fencing, etc.) and to improve habitat conditions (e.g., restoration of disturbed habitat within conservation areas, etc.).
Minimization and Mitigation Measures
Section 10(a)(2)(B) of the Act requires that conservation plans demonstrate how a project proponent will minimize and mitigate to the maximum extent practicable the impacts of take authorized by an incidental take permit and that such taking will not appreciably reduce the likelihood of the survival and recovery of the species in the wild. In general, the minimization and mitigation measures in conservation plans should be based on sound biological rationale and be practicable and commensurate with the impacts of the project on species for which take is requested.
Draft General Conservation Plan for the Desert Tortoise in California 41 In accordance with these guidelines and the requirements of the Act, the conservation program of this Plan is intended to achieve its biological goals and objectives and to ensure that the impacts of covered activities are minimized and mitigated to the maximum extent practicable.
The following minimization, mitigation, and monitoring measures will apply to all permits issued under the Plan and will be specifically tailored to the circumstances of each individual permit as appropriate.
Measures to Minimize Impacts
Measures 1, 2, and 4 through 11 implement Objective 1.1. Measure 3 implements Objective 1.2.
1. Depending on the nature and location of the proposed action, the project proponent may conduct pre-project surveys of the project area according to the Service’s current protocol or a modified protocol agreed upon by the Service for the specific action; it may also use the regional density as determined by the Service’s range-wide monitoring. The project proponent and Service will determine the appropriate course of action through discussions prior to submitting an application package. The purpose of these surveys is to assess the number of desert tortoises that may be present.
2. The project proponent will employ authorized biologists, monitors, and/or fencing, as necessary and appropriate, to protect desert tortoises during implementation of the proposed project. Biologists requesting designation as authorized biologists for each activity must have sufficient training and experience to resolve any issue that may arise regarding the specific activity on which they are working. For example, if the activity involves the translocation of desert tortoises, at least one authorized biologist must have sufficient training and experience to conduct full health assessments and implement the translocation according to the Service’s guidance. For an activity where translocation is not needed, the authorized biologist need not have that specific training and experience.
Monitors may work under the supervision of authorized biologists. Monitors may handle desert tortoises as determined to be appropriate by the authorized biologist; the authorized biologist will determine the protective measures the monitors may conduct and the level of supervision the monitors need to complete each task. The project proponent will submit the credentials of biologists they propose as authorized biologists to the Service for review and approval at least 30 days prior to the onset of activities that could take a desert tortoise.
3. The project proponent will employ authorized biologists and monitors to conduct clearance surveys to remove desert tortoises from work areas prior to the onset of grounddisturbing activities. Depending on the nature of the activity and circumstances, desert tortoises in work areas will either be moved from harm’s way into adjacent suitable habitat or translocated longer distances to suitable protected habitat on public or designated conservation lands; the translocation sites may include regional augmentation sites, as discussed in the recovery plan (Service 2011). The project proponent will follow the Service’s most recent guidance for handling, moving, and translocating desert tortoises; because of specific circumstances, we may recommend changes in the guidance
Draft General Conservation Plan for the Desert Tortoise in California 42 that is in place at the time of a specific activity. In all cases, the project proponent must obtain the Service’s review and approval of the project-specific translocation plan. If the proposed recipient site is on land managed by a federal, state, or local agency, the Service will contact the land manager for approval prior to the project proponent translocating desert tortoises. If the proposed recipient site is on land managed by a land conservancy or mitigation bank, the project proponent will provide the Service with a letter from the landowner accepting the translocated desert tortoises prior to moving them. If the proposed project is located on a non-federal right-of-way within a conservation area, desert tortoises in work areas will be moved from harm’s way into suitable habitat within adjacent conservation lands. The project proponent will mark all desert tortoises that it moves in a manner to be determined by the Service unless we determine that marking is not needed in a specific situation.
4. The project proponent will implement measures to reduce the attractiveness of work sites to common ravens (Corvus corax) and other subsidized predators by controlling trash and educating workers. The project proponent and Service will discuss whether the proposed project is likely to attract common ravens over its active life. If the proposed project is likely to attract common ravens over its active life, the project proponent will convey the appropriate fee to the National Fish and Wildlife Foundation for the management program for common ravens, as described in the Service’s incidental take permit issued for the project.
5. The project proponent will implement an education program for workers and all other participants in the activity to ensure they are aware of the protective measures in place for the desert tortoise.
6. The project proponent will require that all workers, contractors, and all other participants in the activity check under their vehicles or equipment prior to moving them when they are in areas where desert tortoises are likely to be active.
7. The project proponent will follow the Service’s most recent protocol for construction of fencing and gates to exclude desert tortoises. The project proponent will also ensure that the fencing and gates remain capable of excluding desert tortoises for the life of the activity unless otherwise notified by the Service.
8. The project proponent will employ best management practices to reduce the likelihood that its actions will introduce non-native invasive plant species.
9. In any situation where a desert tortoise places itself in danger (e.g., it enters a work area or access road or becomes trapped in an excavation), the project proponent will undertake immediate action to protect the desert tortoise. If an authorized biologist or biological monitor is not immediately available onsite, the project proponent will place the desert tortoise in a suitable container in a shaded location and contact an authorized biologist for additional guidance. The project proponent may also contact the Service for further guidance, if needed. The authorized biologist and project proponent will develop a procedure for such an occurrence, which we expect would not occur frequently, prior to
Draft General Conservation Plan for the Desert Tortoise in California 43 the start of the activity. Under normal circumstances, authorized biologists (and the biological monitors that they designate) will be the only individuals allowed to handle desert tortoises.
10. The interstitial spaces of all rock-slope protection extending to and from culverts and undercrossings will be filled with substrate to prevent trapping desert tortoises. All culverts and undercrossings will be constructed to allow for the passage of desert tortoises. For example, the entrances and exits of culverts and undercrossings will not contain steep or vertical inclines that desert tortoises would be unable to use.
11. The project proponent will monitor translocated desert tortoises in a manner that is commensurate with the number of desert tortoises that require translocation. For example, the translocation of few desert tortoises into an augmentation area may require only monthly “wellness checks” on translocated individuals for the first year. The translocation of many desert tortoises from a single project may require more extensive pre-translocation work and intensive monitoring for years after translocation.
12. The Service intends to develop a program to conduct long-term monitoring of translocated desert tortoises. We may discuss with project proponents methods for their monitoring to contribute to this effort.
If these generalized protective measures do not address a specific concern during the review of a proposed action, the Service and the project proponent may develop additional protective measures for that project.
Measures to Mitigate Impacts
The following measures to mitigate impacts to desert tortoises implement Object 2.1. The project proponent will fulfill its mitigation obligation through non-acquisition (i.e., restoration and enhancement), land acquisition (i.e., habitat preservation), mitigation bank credits, other actions needed to protect and conserve desert tortoises, or a combination of these options. At a minimum, the amount of land acquisition will generally follow the guidelines in the Bureau’s (2016; see Table 18) Desert Renewable Energy Conservation Plan.
For land-acquisition options, the project proponent may directly purchase lands or purchase them through a third party (e.g., land trust); in either case, the Service will review lands proposed for acquisition. The project proponent must place acquired lands under a conservation easement and provide for long-term management and funding to ensure in-perpetuity conservation.
The project proponent may choose to donate acquired lands to the Bureau or National Park Service. These agencies will follow relevant statutes, regulations, and land use plans, when accepting land donations.
For mitigation banking options, the project proponent may directly purchase credits from a mitigation bank that the Service has approved. If the bank lacks approval from the Service, the project proponent may provide the bank’s enabling instrument to the agency to request approval.
Draft General Conservation Plan for the Desert Tortoise in California 44 For non-acquisition options, the project proponent must work with the Service to identify any appropriate recovery action(s) to fulfill its mitigation obligations. The project proponent will either directly fund implementation of the project or place funds into a regional recovery account to provide for its implementation by an entity approved by the Service. The Service would work with the project proponent to identify the appropriate funding assurances and durability mechanisms, when appropriate, to meet permit issuance criteria.
If the Service and project proponent are interested in pursuing a non-acquisition option on lands managed by the Bureau, they would work with the Bureau to find an area within California Desert National Conservation Lands or an area of critical environmental concern within a mitigation area as defined by the Plan. If the non-acquisition mitigation on lands managed by the Bureau requires compliance with NEPA, the project proponent will be responsible for any costs associated with the preparation of the appropriate NEPA document.
The project proponent could also provide funding to the recovery account for desert tortoises held by the National Fish and Wildlife Foundation, after determining the appropriate amount of funding with the Service. The National Fish and Wildlife Foundation would combine this funding from other sources and issue annual requests for proposals to implement recovery actions for the desert tortoise.
Monitoring
Monitoring tracks compliance with the provisions of the Plan and the specific incidental take permit and provides information for making adaptive management decisions. Monitoring consists of three types:
1. Compliance monitoring tracks the permit holder’s compliance with the requirements specified in the Plan and permit;
2. Effects monitoring tracks the impacts of the covered activities on the covered species; and
3. Effectiveness monitoring tracks the progress of the conservation strategy in meeting the Plan’s biological goals and objectives.
Compliance Monitoring
Each incidental take permit issued under the Plan will include onsite monitoring during implementation of the activity, daily monitoring logs, and preparation of a post‐construction compliance report to be provided to the Service.
Draft General Conservation Plan for the Desert Tortoise in California 45 Effects Monitoring
To quantify the amount of incidental take at the end of the activity, the post‐construction compliance report will provide information on the numbers of desert tortoises that were found and translocated or moved from harm’s way, injured, or killed during implementation of the activity.
Effectiveness Monitoring
The Service will assess the effectiveness of the minimization and mitigation measures by reviewing monitoring reports and, for activities of longer duration, possibly site visits. The post‐ construction compliance report will include an evaluation of the effectiveness of the minimization and mitigation measures. Project proponents are responsible for management, monitoring, and reporting the biological monitoring on mitigation land for which the proponent is responsible.
Management, monitoring, and reporting the biological monitoring on conservation banks or other mitigation land is the responsibility of the banker or third party that holds the easement on the mitigation land, respectively. Other than the biological monitoring that is being conducted on the mitigation land, the Service will monitor and evaluate biological effectiveness of the Plan through review of annual reports and range-wide monitoring of the desert tortoise. Project proponents will allow Service staff or other persons designated by the Service to access the property at any reasonable hour for the purpose of assessing whether the project proponent is fully implementing the specific incidental take permit for desert tortoises (50 CFR 13.47).
Adaptive Management Strategy
The Service defines adaptive management as a formal, structured approach for addressing the uncertainty inherent in all natural systems (65 FR 35242). It involves examining alternative strategies for meeting measurable biological goals and objectives, and then, if necessary, adjusting future conservation, management, monitoring, or mitigation actions based upon what is learned. Adaptive management plans are required for conservation plans where there is substantial uncertainty regarding the effects of the action on the covered species or the efficacy of minimization and mitigation measures. The adaptive management program identifies the potential need for modification of a project and uses research and monitoring as an on-going feedback loop for continuous improvement. It should also identify triggers for certain responses and incorporate those triggers and responses into conservation plan implementation. Monitoring and reporting described in Section 5 of this Plan and other project and survey information will provide the basis for determining when the project proponent and Service should discuss and/or implement adaptive management. The Service will monitor and analyze the effects of minimization and mitigation actions prescribed in this Plan to determine whether they are producing the anticipated results. If the desired results are not being achieved, we can use adaptive management to adjust minimization and mitigation measures to increase the Plan’s effectiveness for specific activities.
Draft General Conservation Plan for the Desert Tortoise in California 46 Changed Circumstances
The regulations that implement section 10(a)(1)(B) of the Act [50 CFR 17.22(b)(2) and
17.32(b)(2)] require that a conservation plan specify the procedures to be used for dealing with changed and unforeseen circumstances that may arise during the implementation of the habitat conservation plan. In addition, 50 CFR 17.22(b)(5) and 17.32(b)(5)] provide assurances to nonfederal landowners participating in conservation planning under the Act that where the conservation plan is being properly implemented and the permittee is properly complying with the permit, no additional land restrictions or financial compensation will be required for covered species in the event of unforeseen circumstances without the consent of the project proponent.
If the Service deems additional conservation and mitigation measures necessary to respond to changed circumstances and these additional measures were already provided for in the Plan’s conservation program, the project proponent must implement those measures as specified in the Plan. In some cases, the Service may find that specific projects warrant additional requirements regarding changed circumstances.
If additional conservation management and mitigation measures are deemed necessary to respond to changed circumstances and such measures were not provided for in the Plan’s conservation program or the specific incidental take permit, the Service will not require these additional measures absent the consent of the project proponent, provided that the Plan is being “properly implemented.” (“Properly implemented” means the project proponent has been or is fully implementing the commitments and provisions of the Plan (Service and National Oceanic and Atmospheric Administration 2016, page G-20).)
Project proponents should identify up-front the range of possible conservation program adjustments that could be implemented as new information or data is obtained. This range defines the limits of what resource commitments may be required of the project proponent. The project proponent should identify specific actions that must be taken, not merely provide a general review of strategies. Prior to permit issuance, the Service and the project proponent must have a clear understanding and agreement as to the range of adjustments to the management actions that might be required as a result of any changed circumstances. This process will enable the project proponent to assess the potential economic impacts of adjustments before agreeing to the Plan.
To fund the remedial management to address changed circumstances, a project proponent must add a line item to the estimated management costs. The amount should be commensurate with the costs to address the changed circumstances, based on the anticipated restoration, management and/or monitoring costs. The following sections outline reasonably foreseeable circumstances and their anticipated effects on the covered species.
Newly Listed Species
If a new species is listed or critical habitat is designated under the Act that occurs within the permit area, the Service will re-evaluate any incidental take permits it issued under this Plan. If, after reevaluation, the Service determines that modification of covered activities for any specific
Draft General Conservation Plan for the Desert Tortoise in California 47 project would be necessary to avoid or minimize the likelihood of take of this newly listed species or the destruction or adverse modification of designated critical habitat, the project proponent and the Service will work together to develop and implement mutually agreeable modification measures to the covered activities in the incidental take permit (“modification measure(s)”). The Service and the project proponent must approve each modification measure before implementation. The project proponent will be allowed to continue undertaking covered activities that would not result in take of the newly listed species while such modification measures are being developed. The project proponent will continue to implement such modification measures until such time as they have applied for and the Service has approved an amendment of the section 10(a)(1)(B) permit, in accordance with applicable statutory and regulatory requirements, to cover the newly listed species or until the Service notifies the proponent in writing that the modification measures to the covered activities are no longer required to avoid the take of the newly listed species or the destruction or adverse modification of designated critical habitat.
Newly Discovered Listed Species
In the event that an already-listed species is discovered in a project area, if the Service determines that modification of the covered activities would be necessary to avoid the likelihood of take of this species, the project proponent and the Service will work together to develop and implement mutually agreeable modification measures to the covered activities in the incidental take permit. The Service and the project proponent must approve each modification measure before implementation. The project proponent will be allowed to continue undertaking covered activities that would not result in take of the newly listed species while such modification measures are being developed. The project proponent will continue to implement such modification measures until such time as the proponent has applied for and the Service has approved an amendment of the section 10(a)(1)(B) permit, in accordance with applicable statutory and regulatory requirements, to cover the listed species or until the Service notifies the project proponent in writing that the modification measures to the covered activities are no longer required to avoid the likelihood of take of the listed species.
Unforeseen Circumstances
Unforeseen circumstances are defined at 50 CFR 17.3 as changes in circumstances affecting a species or geographic area covered by a conservation plan that could not reasonably have been anticipated by plan developers and the Service at the time of the conservation plan’s negotiation and development, and that result in a substantial and adverse change in the status of the covered species (50 CRF 17.3). The term “unforeseen circumstances” is used to define the limit of the project proponent’s obligation under the “No Surprises” regulations set forth in 50 CFR
17.22(b)(5) and 17.32(b)(5).
In case of an unforeseen circumstance, the project proponent will immediately notify the Service.
In deciding whether unforeseen circumstances exist, which might warrant requiring additional conservation measures, the Service will consider, but not be limited to, the factors identified in 50 CFR, 17.22(b)(5)(C) and 17.32(b)(5)(C) (the No Surprises Rule). These factors are: size of
Draft General Conservation Plan for the Desert Tortoise in California 48 the current range of the affected species, percentage of the range affected by the Plan, percentage of range conserved by the Plan, ecological significance of that portion of the range affected by the Plan, level of knowledge about the affected species and the degree of specificity of the species’ conservation program under the Plan, and whether failure to adopt additional conservation measures would appreciably reduce the likelihood of survival and recovery of the affected species in the wild.
As described in 50 CFR 17.22(b)(5)(C) and 17.32(b)(5)(C), the Service will have the burden of demonstrating that unforeseen circumstances exist, using the best data available. Any findings of unforeseen circumstances must be clearly documented and based upon reliable technical information regarding the biological status and habitat requirements of the affected species.
Except where substantial threat of imminent, significant adverse impacts to a covered species exists, the Service will provide the project proponent at least 60 calendar-days written notice of a proposed finding of unforeseen circumstances, during which time the Service will meet with the project proponent to discuss the proposed finding, to provide the proponent with an opportunity to submit information to rebut the proposed finding, and to consider any proposed changes to the conservation program or the incidental take permit.
Pursuant to the No Surprises rule, if the Service determines that additional conservation and mitigation measures are necessary to respond to the unforeseen circumstances, the additional measures must be as close as possible to the terms of the original plan. If the Service determines that additional conservation and mitigation measures are necessary to respond to unforeseen circumstances, then the project proponent will work with the Service to develop mutually agreeable conservation and mitigation measures; both the Service and the proponent must approve the measures before implementation. Additional conservation and mitigation measures will not involve the commitment of additional land, additional financial commitment or funding by the project proponent, or additional restrictions on the use of land or other natural resources otherwise available for development or use under original terms of the Plan without the consent of the proponent.
Draft General Conservation Plan for the Desert Tortoise in California 49 Section 6.
Permit Processing and Implementation
The Service strongly recommends that project proponents who may want to apply for an incidental take permit for desert tortoises meet with us as early in their planning process as possible. In some cases, such as when desert tortoises are clearly present on a project site, project proponents can be reasonably certain that their activities would result in take. In other situations, such as when the results of surveys are not clear or desert tortoises occur near but not on the project site, determining the appropriate course of action (i.e., whether to apply for an incidental take permit) can be more difficult.
Application Package
Once a project proponent has decided to apply for an incidental take permit for desert tortoises under the Plan, they should meet with the Service to refine the general minimization and mitigation measures described in this document into project-specific measures. Once a project proponent has refined the minimization and mitigation measures to address their specific activity, they must submit a complete permit application package to the Service. This section describes the permit application package and provides information on the development and submission of the package. The permit application package includes the following items:
• A 3-200-56 Federal Fish and Wildlife Permit Application Form (including supplementary information requested in the permit application form such as the total number of acres, covered activities requested under the permit, etc.);
• Application processing fee (currently $100);
• A signed copy of the Plan’s project planning document:
o Project proponents interested in applying for a permit must complete the project planning document. See Appendix A. This document can assist potential project proponents with determining whether their activity may be eligible for a permit under this Plan.
• Individual project package, which includes:
o Map or maps and a description of the location of impacts, including photographs (as described below). Maps must include sufficient detail to enable readers to determine how various aspects of the project are likely to affect desert tortoises. If the previous map does not include the mitigation area for the proposed project, please include an additional map. Please provide shape files for all maps. o Duration of proposed covered activities;
o Description of proposed covered activities with emphasis on how they would affect desert tortoises and their habitat;
o Survey results for the desert tortoise;
o Estimation of the amount of take (more information below); o Project-specific descriptions of the minimization and mitigation measures and the monitoring plan developed in coordination with the Service;
Draft General Conservation Plan for the Desert Tortoise in California 50 o Project-specific descriptions of the funding assurances and commitments necessary to implement the proposed minimization, mitigation, and monitoring (more information below); and
o Documentation that project proponent has completed their compliance with the state or local agency’s cultural resources requirements. If the project proponent does not require authorization from a state or local agency, the proponent should inform the Service of the circumstance early in the planning process so the Service can initiate its work to comply with section 106.
Mitigation and Funding Assurances
Project proponents must demonstrate adequate funding for mitigation. If conservation banks are the selected mitigation method, documentation of credit purchase must be provided to the Service prior to initiation of impacts. If project proponent-responsible mitigation lands are the selected mitigation method, these lands must first be approved by the Service, and then be acquired and have completed management plans and perpetual protection (for example, a conservation easement) prior to the initiation of impacts. If the mitigation includes nonacquisition measures, the project proponent must assure the Service that they have the funding and commitments from other parties, if necessary, to implement the mitigation prior to the initiation of impacts. Project proponents must submit their plans for mitigation (type, location, and status) in their individual project packages.
In addition to funding mitigation, the project proponent must also demonstrate adequate funding sources to fully implement and maintain the required minimization measures for their specific activity, conduct compliance and effectiveness monitoring, and implement measures that may be required due to changed circumstances. Funding options for changed circumstances and postconstruction restoration are described in Section 7. For each permit application package, project proponents must identify the selected funding option, submit applicable documentation of the selected funding assurance (as discussed in Section 7), and include an estimate of the cost to implement their specific activity.
Service Review and Notification of Permit Application Package Status Within 30 days of the receipt of a permit application package, the Service will review the package for completeness and will notify the project proponent via e-mail (to the e-mail address included in the individual project package checklist) whether their permit application package is complete and ready for submission to the Federal Register. If the application package is not complete, we will provide suggestions for revising it.
Within 30 days of the close of the public comment period in the Federal Register, the Service will either provide the issued incidental take permit to the project proponent or notify the proponent that we have denied issuance. In the latter situation, the Service will provide the project proponent with an explanation of why we denied issuance of the incidental take permit.
Draft General Conservation Plan for the Desert Tortoise in California 51 Permit Application Submission
Permit application packages, all associated information described above (and in the application instructions), and the processing fee must be submitted to the Service’s Palm Springs Fish and Wildlife Office. Project proponents should also submit an electronic copy of the application by email to [email protected] with the subject heading “Plan Application – <Your Company Name>.”
Under section 10(c) of the Act, the Service must publish a notice of receipt for each application received for an incidental take permit in the Federal Register. We will make the project-specific information available for public review through this notice for 30 days. At the conclusion of this public review, the Service will review all comments and consider them prior to reaching a decision regarding issuance of the incidental take permit.
Permit Implementation
If the Service issues an incidental take permit under this Plan, the project proponent will be responsible for:
1. Fully implementing their project-specific minimization and mitigation measures, as described in their application for an incidental take permit;
2. Complying with all terms and conditions of their incidental take permit;
3. Providing proof of implementing the mitigation to the Service prior to onset of any activities that have the potential to result in take. Project proponents must submit the receipt of mitigation form found at http://www.fws.gov/XXXXX along with supporting documentation to [email protected] with the subject heading “Plan Mitigation Fulfillment – <Your Company Name>”;
4. Monitoring and tracking their total take of, and impacts to, the desert tortoise; and
5. Providing an annual report that documents how they fulfilled the requirements of this section.
Impact, Mitigation, and Post-Construction Restoration Tracking Following the Service’s issuance of a permit, covered activities included in the individual project package may begin.
During implementation of covered activities, project proponents must track the take of desert tortoises and ensure that the measures in the incidental take permit are being fully implemented.
The project proponent must track and report the effectiveness of all minimization and mitigation measures, as identified in Section 5 of this document. The project proponent must demonstrate that adequate mitigation is in place before the corresponding take occurs. If the mitigation is not in place prior to when the incidental take is likely to occur, the project proponent must provide assurance to the Service that the mitigation will occur and obtain the Service’s approval before initiating activities that are likely to result in take of desert tortoises.
Draft General Conservation Plan for the Desert Tortoise in California 52 After project completion, the project proponent will document the final amount of incidental take of desert tortoises.
The total amount of incidental take approved by the Service in incidental take permits associated with the plan will be posted on our website, http://www.fws.gov/XXXXX. We will update the amount of take following each approval of an incidental take permit or as end-of-year reports are submitted.
Reporting
The project proponent must submit an annual report of covered activities and management activities undertaken under their specific incidental take permit to [email protected]. The e-mail subject heading should read “Annual Report – Permit TEXXXXXXX – Individual Project Package #XXX” with the applicable year in four-digit format, permit number (found in Box 3 of the incidental take permit) and individual project package number (found in permit application package approval e-mail from Service) for the project. The project proponent must submit annual reports by March 31 of each year that the specific incidental take permit is in effect (i.e., while the project proponent is working under an active incidental take permit). The report must summarize information on the covered activities and management activities for the issued incidental take permit, including:
1. Permit number;
2. Description of activity conducted within habitat;
3. Location of impacts;
4. Map identifying the location of impacts;
5. Habitat types affected;
6. Minimization measures implemented;
7. Amount and type (project proponent-responsible, purchase of conservation bank credits, mitigation account) of mitigation;
8. Date of mitigation fulfillment (credit purchase, deposit to mitigation account, approval of conservation easement);
9. Total acres of mitigation provided for impacts but not yet applied to impacts; and
10. Summary of the above information by year and cumulative for entire duration of the permit.
If project activities conclude before the permit duration expires, project proponents are not required to continue to submit annual reports subject to coordination and/or approval from the Service. If no impacts occur during a given year of the permit’s duration, project proponents may send an e-mail to the Palm Springs Fish and Wildlife Office at ([email protected]) stating that no impacts occurred during that calendar year. E-mail subject heading should read “Annual Report – Permit TEXXXXXXX – No Impacts.” In cases where development activities may have concluded but activities associated with mitigation responsibilities continue, the project proponents must submit an annual report detailing those responsibilities. Project proponents must notify us prior to transferring the responsibility for activities associated with mitigation to another party; in such cases, the party then conducting the management activities must provide the annual report as described above.
Draft General Conservation Plan for the Desert Tortoise in California 53 Notice of Permit Issuance
The Service will issue project-specific incidental take permits under this Plan once it determines that the project proponent has met all requirements for issuance. This document describes the statutory criteria for permit issuance in Section 1 under Regulatory Framework. We will notify the public of any incidental take permits we issue under the Plan through the publication of an annual notice in the Federal Register.
We will also post information regarding issued project-specific incidental take permits applications at https://ecos.fws.gov/ecp/report/conservation-plans-regionsummary?region=8&type=HCP. We recommend that anyone interested in activities conducted under this Plan check the website; we will denote all incidental take permits that we consider or issue under this Plan with the acronym “DTGCP-CA” to facilitate searching for them.
Amendments to the Plan and Specific Incidental Take Permits Clarifications and Administrative Changes
Provisions of the Plan or project-specific conservation measures may need to be clarified to address issues with respect to administration of the process or the precise meaning and intent of the language contained within those documents. Project proponents may also wish to have provisions clarified and may request that the Service provide such clarifications. Clarifications do not change the substantive provisions of any of the documents in any way but merely clarify and make more precise the provisions as they exist.
In addition, administrative changes to the Plan or project-specific conservation measures may be necessary that do not make substantive changes to any of the provisions, but which may be necessary or convenient, over time, to more fully represent the overall intent of the project proponent and the Service. The Service will review any request for clarification or any proposed administrative change. If the Service approves the change or clarification, the Service will process the change and will provide a response. Clarifications to the Plan or project-specific conservation measures will be approved locally by the Assistant Field Supervisor of the Palm Springs Fish and Wildlife Office. Administrative changes to the Plan or project-specific conservation measures will also be approved by the Assistant Field Supervisor of the Palm Springs Fish and Wildlife Office. Clarifications and administrative changes to the Plan or project-specific conservation measures will be memorialized by a letter of agreement that will be archived at the Palm Springs Fish and Wildlife Office and will be posted on the Plan website, http://www.fws.gov/Palm Springs/XXXX.
The Service may alter the Plan without changing issued incidental take permits when the alterations are of a minor or technical nature such that the net impacts on the desert tortoise and levels of take resulting from the change are not increased over those described in the original Plan and the Service’s decision documents. Examples of changes to the Plan that would not require a permit amendment include, but are not limited to: (a) minor revisions to monitoring or reporting procedures; (b) minor revisions in accounting procedures; and (c) minor modifications
Draft General Conservation Plan for the Desert Tortoise in California 54 to covered activities in response to evolving technologies (provided that impacts associated with such activities will not exceed the level of take analyzed under the Plan and are compliant with other local and state laws and regulations).
Substantive Changes
Substantive changes are modifications that result in impacts not previously analyzed, such as (but not limited to), new listings of species as threatened or endangered not addressed by this Plan that may be affected by covered activities, expansion of the planning area, or the addition of covered activities. The Service will process substantive changes as an amendment in accordance with the provisions of the Act and regulations at 50 CFR Parts 13 and 17 and will be subject to appropriate environmental review under the provisions of NEPA. The Service may implement substantive changes to the Plan following publication of the approved, amended Plan. Following completion of a substantive change to the Plan, all future specific incidental take permits must include the modifications contained within the major amendment. Previously existing specific incidental take permits will not be required to incorporate any changes caused by a major amendment, unless a project proponent voluntarily chooses to modify their permit.
Substantive changes to specific incidental take permits would be required for any modification of the covered activities that is expected to cause take of desert tortoises not analyzed or authorized in the original incidental take permit or if the authorized amount of take is insufficient for the project proponent’s need. These amendments must be completed prior to the activities causing take.
Permit Renewal
Section 10(a)(1)(B) permits may be renewed without the issuance of a new permit, provided that the permit is renewable, and that biological circumstances and other pertinent factors affecting covered species are not significantly different than those described in the original conservation plan. To renew a permit issued under this Plan, the project proponent must submit to the Service at least 30 days prior to the permit’s expiration date, in writing: (1) a request to renew the permit with reference to the original permit number; (2) certification that all statements and information provided in the original individual permit package, together with any approved amendments, are still current and correct, or inclusion of corrected information; (3) a description of any take that has occurred under the existing permit; and (4) a description of any portions of the project still to be completed, if applicable, or what activities under the original incidental take permit the renewal is intended to cover.
If the Service concurs with the information provided in the request, it will renew the permit consistent with permit renewal procedures required by Federal regulation (50 CFR 13.22). If the project proponent files a renewal request and the request is on file with the issuing Service office at least 30 days prior to the permit expiration date, the incidental take permit will remain valid while the renewal is being processed. However, the project proponent may not take listed species beyond the quantity authorized by the original incidental take permit. If the project proponent fails to file a renewal request within 30 days prior to the incidental take permit’s expiration date,
Draft General Conservation Plan for the Desert Tortoise in California 55 the incidental take permit will become invalid upon expiration. The project proponent must have complied with all annual reporting requirements to qualify for a renewal.
Permit Transfer
In the event of a sale or transfer of ownership of a company, property or project during the life of the specific incidental take permit, the following will be submitted to the Service by the new owner(s): (1) a new permit application; (2) permit fee; and (3) written documentation providing assurances pursuant to 50 CFR 13.25 (b)(2) that the new owner will provide funding adequate to fully implement the actions described in their individual permit package and the relevant terms and conditions of the permit, including any outstanding minimization and mitigation. The new owner(s) will commit to all requirements regarding the take authorization and mitigation obligations of this Plan unless otherwise specified in writing and agreed to in advance by the Service.
Such Other Measures that the Service May Require
If dead, injured, or sick desert tortoises are discovered, project proponents are required to contact the Palm Springs Fish and Wildlife Office at 760-322-2070 for care and disposition instructions within 72 hours of discovery. Extreme care must be taken in handling sick or injured individuals to ensure effective and proper treatment. Care must also be taken in handling dead specimens to preserve biological materials in the best possible state for analysis of cause of death. In conjunction with the care of sick or injured desert tortoises or preservation of biological materials from any dead specimens, project proponents and their contractors/subcontractors have the responsibility to ensure that evidence intrinsic to the specimen is not unnecessarily disturbed.
If, during the tenure of incidental take permits issued through participation in the Plan, the project design or the extent of habitat impacts is altered such that an increase in the anticipated take of desert tortoises may occur, project proponents must contact the Service and obtain a new permit or individual project package approval and/or amendment of their incidental take permit before commencing any construction or other activities that might result in take beyond that described in their existing incidental take permit.
The incidental take authorization granted by specific incidental take permits issued through participation in the Plan will be subject to full and complete compliance with, and implementation of, all specific conditions contained in resulting individual incidental take permits. The terms and conditions of specific incidental take permits will supersede and take precedence over any inconsistent provisions in the Plan or other documents.
Incidental take permits issued through the participation in the plan become effective upon the date the project proponent signs the incidental take permit, which must occur within 90 calendar days of issuance. 50 CFR 17.32(b)(4)(i). Acceptance of an incidental take permit serves as evidence that the project proponent understands and agrees to abide by the terms of the permit and all applicable sections of 50 CFR Parts 13 and 17.
Draft General Conservation Plan for the Desert Tortoise in California 56 Section 7.
Funding
Section 10(a)(2)(A)(ii) of the Act requires conservation plans to specify the funding that will be available to implement actions that will be enacted to minimize and mitigate the impacts of the taking. The Act also requires that the Service must find that “the applicant will ensure that adequate funding for the plan will be provided” (section 10(a)(2)(B)(iii)). Project proponents must therefore demonstrate adequate funding sources to fully implement the actions described in this Plan and their individual project package. Expenses related to these activities are the sole responsibility of the project proponent. Failure to commit appropriate funding prior to approval (discussed above in Section 6) or to meet funding obligations after the specific incidental take permit is issued may be grounds for denying individual project packages for future projects or revoking or suspending an existing incidental take permit. Project proponents unable to meet the financial requirements described here may not meet qualifications for approval of individual project packages and should contact the Service for additional guidance or potential approval of alternative funding mechanisms.
Project proponents must ensure that adequate funding sources for Plan implementation, actions to be taken in response to changed circumstances, and implementation of other required measures are included in their individual permit package. Funding for mitigation obligations is directly related to the mitigation option(s) selected by the project proponent. If a project proponent chooses to fulfill mitigation requirements through the purchase of credits from a Service-approved conservation bank, the conservation bank will be responsible for the management of the mitigation lands secured through the purchase of bank credits. If a project proponent elects to fulfill mitigation obligations through proponent-responsible mitigation, all management responsibilities, including adaptive management procedures associated with those lands, must be fully funded and managed by the project proponent or designated third party entity.
Draft General Conservation Plan for the Desert Tortoise in California 57 Section 8.
References
Arcadis U.S. 2022. 2021 Annual habitat conservation plan implementation report. Hinkley Groundwater Remediation Project, San Bernardino, California. Dated March.
Concord, California.
Allison, L.J., and A.M. McLuckie. 2018. Population trends in Mojave desert tortoises (Gopherus agassizii). Herpetological Conservation and Biology 13(2):433-452.
Averill-Murray, R.C. 2002. Effects on survival of desert tortoises (Gopherus agassizii) urinating during handling. Chelonian Conservation and Biology 4(2):430-435.
Averill-Murray, R., C.R. Darst, N. Strout, and M. Wong. 2013. Conserving population linkages for the Mojave desert tortoise. Herpetological Conservation Biology 8(1):1-
15. Bureau of Land Management. 2016. Desert Renewable Energy Conservation Plan, Land Use Plan Amendment to the California Desert Conservation Plan, Bishop Resource Management Plan, and Bakersfield Resource Management Plan. Dated September.
Sacramento, California. https://eplanning.blm.gov/eplanning-ui/project/66459/570.
California Energy Commission, California Department of Fish and Wildlife, Bureau of Land Management, and U.S. Fish and Wildlife Service. 2014. Draft desert renewable energy conservation plan and environmental impact report/environmental impact statement. Volume III: Environmental setting/affected environment. Dated September.
CH2MHill Engineers. 2019. Hinkley Groundwater Remediation Project Habitat Conservation Plan. San Bernardino County, California. Dated August. Sacramento, California.
Dickson, B.G., R.D. Scherer, A.M. Kissel, B.P. Wallace, K.M. Langin, M.E. Gray, A.F.
Scheib, and B. Weise. 2019. Multiyear monitoring of survival following mitigationdriven translocation of a long-lived threatened reptile. Conservation Biology 33(5):1094–1105. https://doi.org/10.1111/cobi.13301.
Guigliano, J. 2021. Electronic mail regarding the number of desert tortoises found at the High Desert Solar Project, San Bernardino County, California. Dated June 1. National Renewable Energy Lead – Environment, AECOM. Texas.
Medica, P.A., K.E. Nussear, T.C. Esque, and M.B. Saethre. 2012. Long-Term growth of desert tortoises (Gopherus agassizii) in a southern Nevada population. Journal of Herpetology 46(2):213-220. https://www.jstor.org/stable/41515040.
Draft General Conservation Plan for the Desert Tortoise in California 58 Nussear, K.E., T.C. Esque, R.D. Inman, L. Gass, K.A. Thomas, C.S.A. Wallace, J.B.
Blainey, D.M. Miller, and R.H. Webb. 2009. Modeling habitat of the desert tortoise (Gopherus agassizii) in the Mojave and parts of the Sonoran Deserts of California, Nevada, Utah, and Arizona. U.S. Geological Survey Open-File Report 2009-1102.
Rideout, B. (ed.). 2015. Transmissible infections and desert tortoise translocation: A comprehensive disease risk analysis. A report to the U.S Fish and Wildlife Service.
From the Disease Risk Assessment Workgroup.
Stantec Consulting Services, Inc. 2022. Bellefield Solar Farm habitat conservation plan.
Dated August. Sacramento, California.
Sundance Biology, Inc. 2006. Hyundai Motor America Automotive Test Course Facility habitat conservation plan biological goals and objectives. Interim post construction compliance. Dated February. Prepared for U.S. Fish and Wildlife Service, Ventura, California. Paso Robles, California.
U.S. Fish and Wildlife Service. 2007. Final general conservation plan policy. Dated October 5. Memorandum from Director. Washington, D.C.
U.S. Fish and Wildlife Service. Mojave population of the desert tortoise (Gopherus agassizii) 5-year review: summary and evaluation. Desert Tortoise Recovery Office.
Reno, Nevada.
U.S. Fish and Wildlife Service. 2011. Revised recovery plan for the Mojave population of the desert tortoise (Gopherus agassizii). Pacific Southwest Region. Sacramento, California.
U.S. Fish and Wildlife Service. 2015c. Update on Mojave desert tortoise population trends.
Dated June 19. Desert Tortoise Recovery Office. Reno, Nevada.
U.S. Fish and Wildlife Service. 2017a. Biological opinion for activities in the California Desert Conservation Area. Dated September 1. Memorandum to District Manager, California Desert District, Bureau of Land Management, Moreno Valley, California.
From Field Supervisor, Carlsbad Fish and Wildlife Office. Carlsbad, California.
U.S. Fish and Wildlife Service. 2017b. Biological opinion for land acquisition and airspace establishment, Twentynine Palms, California (8-8-11-F-65R, FWS-SB-16B0304- 17F0351). Dated January 31. Letter to Lieutenant Colonel T.B. Pochop, Marine Corps Air Ground Combat Center, U.S. Marine Corps, Twentynine Palms, California. From G. Mendel Stewart, Field Supervisor, Carlsbad Fish and Wildlife Office. Carlsbad, California.
U.S. Fish and Wildlife Service. 2019. Health assessment procedures for the Mojave Desert tortoise (Gopherus agassizii): A handbook pertinent to translocation. Dated March.
Desert Tortoise Recovery Office. Reno, Nevada.
Draft General Conservation Plan for the Desert Tortoise in California 59 U.S. Fish and Wildlife Service. 2022. Mojave desert tortoise (Gopherus agassizii) 5-year review: Summary and evaluation. Dated May. Desert Tortoise Recovery Office, Southern Nevada Fish and Wildlife Office. Las Vegas, Nevada.
Fish and Wildlife Service and National Oceanic and Atmospheric Administration. 2016.
Habitat conservation planning and incidental take permit processing handbook. https://www.fws.gov/page/habitat-conservation-plan-handbook-toolbox.
Exhibit 5
Alternative Site Analysis
505818580.3
E-GROUP PS LLC PROPOSED SOLAR FACILITY
ALTERNATIVE SITE ANALYSIS
At the City’s request, E-Group has evaluated a suggested alternative site for its proposed 50 MW solar energy facility in Twentynine Palms. The proposed alternative site is a 160-acre site, APN 0591-331-01-0000. The site is currently zoned Rural Living 2.5 (RL-2.5). For the reasons stated below, it appears that the alternative site is not feasible. • Distance from Point of Interconnection: E-Group’s proposed project site is located immediately down the road from a Southern California Edison (SCE) interconnection point, requiring minimal grading and excavation and no negotiation of significant easements. As shown in Figure 1, the alternative site is located approximately 3.6 miles from the closest substation located on Joshua Drive. The current cost to connect to an interconnection point based upon the SCE Cost Guide is estimated as $3.2 million per mile. At this rate, the alternative site would cost approximately $10 million more to construct than E-Group’s proposed site. This would substantially impact any public benefits E-Group could provide the City and still make the project economically feasible.
• Construction of Gen-Tie Line: The alternative site will require installation of a gen-tie line to the point of interconnection, which would require construction of overhead utility linesthrough single-family residential areas. E-Group’s proposed site avoids this issue. • Site Shading: The alternative site is located approximately 1,000 feet north of a mountain range that has a significantly higher elevation than the site, reaching an elevation of 3,000 feet, which is approximately 1,300 feet higher than the alternative site. A preliminary shading analysis indicates that this would limit morning irradiation at the alternative site until 9 AM, reducing site solar production by approximately 7%.
• Buffer from Residential Areas: To address the City’s concerns, E-Group proposes a buffer of approximately 4,000 feet from 2 Mile Road, where it will agree not to install any solar panels to address any potential visual impacts. Visual renderings have been provided with this alternatives analysis.
• Alternative Site Zoning and Surrounding Areas: As shown in Figure 2, the alternative site is located in a Rural Living 2.5 (RL-2.5) zone, with single-family residential areas surrounding the site on two sides (to the west, northwest, and north). This includes areas of higher-density single-family residential to the northwest and north. The proposed site appears to exacerbate potential use conflicts with neighbors instead of reducing them. With the incorporation of the proposed buffer, E-Group’s proposed project site would only be near residential uses on the east side of the development, which is sparsely developed and predominantly vacant.
505818580.3
• Visibility to Sensitive Uses and Recreational Areas: As shown on the site renderings, the project will not be visible to almost all residential areas and the nearby church. There are no important recreational areas near E-Group’s proposed site that would be impacted. The alternative site could be visible from some areas within Joshua Tree National Park and nearby Tribal lands.
505818580.3
Figure 1 - Alternative Site with Interconnection Line to Substation and Shading
505818580.3
Figure 2 - Alternative Site and City Zoning Map
Exhibit 6
San Bernardino County Fire Protection District Access Road Standards
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
AUTHORITY
Sections 102.9, 103 and 104 of the 2022 California Fire Code (CFC) and Sections 4 and 8 of Ordinance 23- 01 of the San Bernardino County Fire Protection District Fire Code (Fire Code) state that the Fire Code Official of the San Bernardino County Fire Protection District (SBCFPD) shall have the authority to adopt policies, procedures, rules, and regulations in order to clarify the application of the Fire Code and to determine requirements not specifically provided for by the Fire Code. For further requirements on this subject, see sections 503.1 and 503.2 of the 2022 California Fire Code. This Standard may be modified with the approval of the Fire Code Official.
PURPOSE
The purpose of this Standard is to provide for roadways that allow for safe, quick and reliable access by emergency response fire apparatus onto premises to be protected.
SCOPE
This Standard shall apply to the design, construction and maintenance of all new fire apparatus access roads within the jurisdiction, as well as fire apparatus access roads at existing facilities when applied at the discretion of the Fire Code Official.
DISCLAIMER
These Standards may change without notice. Whenever applicable statutes, regulations and Standards are updated and adopted, the latest shall apply. Please contact the Community Safety Division at (909) 386-8400 to determine if these Standards have changed. These requirements do not exempt any individual from complying with other applicable state, county, or city codes and Standards.
SUBMITTALS
1) The applicant shall submit the plans and all required documentation online through the San Bernardino County EZOP website, https://wp.sbcounty.gov/ezop NOTE: If the project is in the City of Fontana please contact (909) 428-8890 for submittal information. 2) All pages of plans shall have a three-inch (3) by three-inch (3) box labeled “FOR FIRE DEPARTMENT USE ONLY” located in the bottom right corner of ever page for approval stamp. 3) Provide a scaled site plan or plot plan the following information at a minimum:
a) Location of all fire apparatus access roads and fire apparatus turnarounds for dead-end roadways. b) Dimensions indicating width, length, and radii of all turns for all fire access roads. c) Surfacing specifications of fire access roads, including pavement type and thickness. May also require a report from a registered engineer for certain conditions.
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
d) Gradient, camber (cross slope) and crown of all roadways used for fire access, indicated in percentage at regular intervals (can be submitted on a grading plan and with topographic lines). e) Locations of any types of obstructions to fire access roads. (See also SBCFPD standard A-3) f) The locations of all temporary and permanent structures, outside storage yards. g) Location of all fire protection water sources (hydrants, tanks, etc.). h) Locations of all parking areas, landscaping areas, walkways, and any other adjacent areas. i) Location of significant hazards (i.e., flammable or combustible liquids, hazardous materials, or LPG tanks).
DEFINITIONS
EMERGENCY VEHICLE ACCESS (EVA) - A road or other passageway developed to allow the passage of fire apparatus. An emergency vehicle access is not necessarily intended for vehicular traffic other than fire apparatus.
FIRE APPARATUS ACCESS ROAD - A road that provides fire apparatus access from a fire station to a facility, building or structure or portion thereof. This is a general term inclusive of all other terms such as fire lane, public street, private street, parking lot drive aisle, driveway or access roadway.
AERIAL FIRE APPARATUS ACCESS ROAD - A roadway that provides a location for safe operation of aerial fire apparatus, such as a ladder truck.
GENERAL
1) All access roads shall meet minimum fire apparatus access road requirements, including width, distance, turnarounds and height limitations or as approved by the Fire Code Official. 2) Fire apparatus access roads shall be provided to within one hundred and fifty (150) feet of all exterior portions of the first story of every building, facility or structure as measured by an approved route around the exterior of the building or structure.
3) For the purposes of determining adequate fire access as discussed above, “approved route” is the distance measured along a path that simulates the route a firefighter may take to extend a hose line around the exterior of a structure from a fire engine parked on the nearest fire apparatus access road.
This shall be measured starting from the edge of the roadway or curb and up to the exterior wall of the building. Under most circumstances, the approved route will not be a straight line. Fences, planters, other structures, topography and any significant changes in elevation must be considered when determining whether a building or structure is accessible from a particular location on the fire access roadway. (See Diagram A-1.1)
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
NUMBER REQUIRED
1) For new residential development, additional points of access will be determined by the number of existing or future dwelling units that the roadway will provide fire access to, as well as by measuring the length of the roadway.
a) For one and two-family developments, a minimum of two points of access, meeting the requirements of the SBCFPD Standards are required when serving more than thirty (30) dwelling units.
2) In all commercial, multi-family and industrial development, a minimum of two or more separate points of fire access into a site or premises, which meet the requirements of the SBCFPD Standards shall be provided whenever fire apparatus access roadways are required onsite. (See Diagram A-1.3) a) For development projects that are constrained with practical difficulties in providing two points of fire access, one point of fire access for emergency ingress and egress shall be allowed at the discretion of the Fire Code Official if it is unobstructed with no gates or other barriers, provides a minimum of thirty-five (35) feet in width, and provides access to buildings or structures with a combined aggregate square footage totaling no more than sixty-two thousand (62,000) square feet and no more than thirty (30) feet or three (3) stories in height. b) When a secondary point of fire access into a development is required, it may be permitted to be an Emergency Vehicle Access (EVA) with the approval of the Fire Code Official. The EVA shall be secured with a gate or other barrier acceptable to the Fire Code Official. (See SBCFPD Standard A3.) 3) To be considered a separate point of fire access, such access shall be located at least one half (1/2) of the diagonal distance of the development area served, apart from another point of fire access. This requirement may be modified due to practical difficulties as described above with the approval of the Fire Code Official.
4) The Fire Code Official is authorized to require more than two means of fire access based on the potential for impairment of roadways by vehicle congestion, condition of terrain, proximity to wildfire risk areas, or other factors that could limit access. In addition, certain uses or areas may require additional provisions for evacuation of large numbers of the public during major disasters.
LOCATIONS
1) In all development except one and two-family residential, fire access roads shall be located according to the following:
a) Whenever possible, access roads shall run parallel to the entire length of the building.
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
b) The roadway shall not be closer than ten (10) feet or farther than thirty (30) feet from the building as measured from the face of the curb or edge of the access roadway to the exterior wall or projection of the building or structure. (See Diagram A-1.4) c) Where aerial fire apparatus roads are required as defined in this Standard, access roads shall be located along multiple sides of the building as approved by the Fire Code Official, to facilitate aerial ladder operations.
d) Buildings less than 50,000 square feet and greater than 100 feet in depth shall be provided with fire access roadways on two (2) sides, one of which shall be on the longest side. e) Buildings that are 50,000 square feet or larger shall have fire access roadways provided on three (3) sides, two (2) of which will be on the longest sides. f) Buildings which exceed 100,000 square feet shall have fire access roadways provided on all sides. g) Buildings that are four (4) or more stories or forty (40) feet or more in height shall have fire access roadways provided on all sides.
2) For facilities where fire apparatus access is needed but where no occupiable structures exist, a twentysix (26) foot wide road shall be provided around the entire interior perimeter of the facility, with interior access roads twenty (20) feet wide and spaced no further than six hundred (600) feet apart.
DIMENSIONS
1) Fire apparatus access roadway width shall be measured from the face of a vertical curb, the edge of the roadway pavement, flow line of a rolled curb, or the projection of a building. (See Diagram A-1.5) 2) Fire apparatus access roadways serving all buildings, structures or facilities, shall be a minimum of twenty-six (26) feet in unobstructed width. See (a) through (d) below for exceptions. a) Residential driveways that provide fire access to not more than two (2) single family dwellings and accessory structures shall be a minimum of twelve (12) feet in width. b) Fire apparatus access roadways serving buildings that are three (3) or more stories or thirty (30) feet or more in height shall be a minimum of thirty (30) feet in unobstructed width. c) When approved by the Fire Code Official, in Mountain Region areas as designated by the County or where topographical constraints exist, fire apparatus access roads that are less than the minimum width, but no less than twenty (20) feet in width, shall be permitted. Such roadways shall have turnouts that are a minimum of six (6’) feet in width and fifty (50’) feet in length and spaced at approximately every six hundred (600’) feet. If fire hydrants are located on access roads, the turn-out shall be located at each fire hydrant and other points as determined necessary for fire protection and emergency response. (See Diagram A-1.8)
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
d) One-way fire access roadways and roadways that have raised medians shall have an unobstructed one-way width of twenty (20) feet with signage posted ‘per SBCFPD Standard A-2. Such medians shall be a maximum of fifty (50) feet in width except where approved by the Fire Code Official.
Roadways with raised medians shall have intersections or median breaks located a maximum of six hundred (600) feet apart or as approved by the Fire Code Official. (See Diagram A-1.7) 3) All fire access roadways shall be no less than fourteen (14) feet six (6) inches in unobstructed vertical clearance, as measured from the roadway surface at the highest elevation to the lowest point of any obstruction.
4) All dead-end fire access roadways that exceed one hundred fifty (150’) feet in length shall be provided with a turn-around in accordance with the “TURNAROUNDS” section of this Standard. The length of a roadway for the purposes of this Standard shall be measured from (A) the center line of the intersecting roadway that provides at least two points of access to (B) the center point of the deadend roadway terminus, such as a cul-de-sac or other turnaround. (See Diagram A-1.2) The maximum length of dead-end fire access roadways shall be:
a) Six hundred (600) feet in length in all residential and commercial development. b) One thousand (1000) feet in length in industrial development. c) Three hundred fifty (350) feet in length for development within a Fire Safety Overlay District as defined by the County Development Code.
5) Parking of vehicles shall not be allowed to obstruct fire apparatus access at any time. The following criteria shall be used to determine parking allowed on fire access roadways:
a) Parking is not permitted on roadways that are less than thirty-two (32) feet in width. b) Roadways that are a minimum of thirty-two (32) feet in width but less than forty (40) feet in width may have parallel parking on one (1) side of the roadway in accordance with County or City Standards.
c) Roadways that are a minimum of forty (40) feet in width may be designated to have parallel parking on both sides of the roadway. For higher density development, public or private streets that are a minimum of thirty-six (36) feet in width may be allowed to have parking on both sides of the street with the approval of the Fire Code Official, taking into consideration additional access provisions and other factors.
d) In addition, parking that is perpendicular or diagonal to the edge of the roadway shall not obstruct the required minimum width of twenty-six (26) feet for fire access. (See Diagram A-1.6)
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
SURFACE
1) All fire access roadway surfaces, except for driveways providing fire access to no more than two (2) single family dwellings or accessory structures, shall be capable of support for a fire apparatus with a gross vehicle weight of 75,000 pounds (lbs.) For design purposes, fire apparatus weight is distributed as 55,000 lbs. on the rear dual axles and 20,000 lbs. on the front axle. When required by the Fire Code Official, the design of fire access roadways shall bear the stamp of a registered professional engineer in order to verify that they meet this requirement.
2) Fire access roadways shall be paved with a concrete or asphalt material in order to provide “all weather” safe driving conditions. The appropriate thickness of surface materials and base materials shall be determined by a qualified engineer and subject to the approval of the County or City having jurisdiction.
3) Planted materials that are retained by an engineered solid system such as “Turf Block®” or “Grasscrete®” may be used for fire apparatus access surfacing, with approval of the Fire Code Official, for limited or isolated areas no more than fifty (50) feet in length and where road grades do not exceed two percent (2%). Such areas shall be clearly signed as Emergency Vehicle Access per SBCFPD Standard A-3, Diagram A-3.1. These, as well as other alternate paving materials such as stone, concrete pavers, chip seal or slag, shall be evaluated based on their ability to support imposed load of a fire apparatus and shall be immediately recognizable to emergency responders as a drivable surface. 4) Where no paved roadways exist, and road grades do not exceed eight percent (8%), and where serving not more than two (2) one or two family dwellings or accessory buildings, roads may be constructed with approved native materials or gravel compacted to eighty-five percent (85%) compaction. 5) Where serving facilities with no permanent occupiable structures, the Fire Code Official may allow alternate fire access roadway surfaces that are designed or evaluated by a qualified professional engineer and that demonstrate equivalent reliability and stability.
GRADIENT
1) Generally, the grade of a fire apparatus access road shall be a maximum of twelve percent (12%) at any point.
2) Fire apparatus access roadways or driveways may be increased to fourteen percent (14%) for a distance not to exceed 500 feet with the approval of the Fire Code Official. 3) The grade of a driveway providing fire access to no more than two (2) one or two-family dwellings may be increased to a maximum of sixteen percent (16%) for a distance not to exceed 500 feet in areas in which County or City Development Codes allow such increases and with the approval of the Fire Code Official.
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
4) Grades across the width of a road section or within a turnaround area as described below shall not exceed five percent (5 %).
5) In order to accommodate proper angles of approach and departure, gradient in fire access roads shall not exceed a five percent (5%) change along any ten (10) foot section. (See Diagram A-1.9)
TURNING RADIUS
1) All turns within fire access roadways that accommodate two-way traffic of fire apparatus shall be a minimum of nineteen feet (19’) inside radius and forty-five feet (45’) outside radius. (See Diagram A1.10) 2) Fire access roadways that accommodate one-way traffic of fire apparatus, as well as roadways that have limited traffic such as onsite drive aisles, shall be a minimum of nineteen feet (19’) inside radius and thirty-one feet (31’) outside radius. (See Diagram A-1.10) 3) Subject to the approval of the Fire Code Official, a computer model fire apparatus turning template with the below dimensions can be used for determining the appropriate radius. a) Fire engine wheelbase of one hundred eighty-three inches (183”) and with an overall length of three hundred twelve inches (312”).
b) Aerial apparatus with a tractor wheelbase of one hundred eighty inches (180”) and a tiller wheelbase of three hundred sixty inches (360”) with an overall length of seven hundred thirty-two inches (732”).
4) A minimum fifty (50) foot straight section of roadway must be provided between radius turns within fire access roadways, measured from the end of one radius turn to the beginning of the next. (See Diagram A-1.11) A turning template may also be used to modify this requirement.
TURNAROUNDS
1) An approved fire apparatus turnaround in accordance with this section is required when fire access roadways exceed one hundred fifty (150) feet in length. 2) Driveways, alleys, and other private roadways that are not intended for public access may provide a “hammerhead” style turnaround. (See Diagram A-1.12)
3) Public and private streets that are intended for public right-of-way access shall terminate in an approved cul-de-sac with a minimum radius of forty-five (45) feet. Within higher density development, cul-de-sacs that are a minimum of thirty-eight (38) feet in radius may be allowed with the approval of the Fire Code Official, taking into consideration potential for parking and other factors. (See Diagram A-1.13)
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
INSTALLATION
1) All fire access roadways required by the Fire Code and this Standard shall be installed to an extent that will provide all-weather paved access for emergency vehicles prior to combustibles being brought to the site or combustible construction taking place. The Fire Code Official shall determine the adequacy of fire access roads during construction.
2) All secondary points of fire access, including those that are EVA only, shall be installed prior to the first phase or the beginning of combustible construction. Subject to the approval of the Fire Code Official, additional points of access may be installed during later phases of construction, provided all other requirements of this Standard are met and all access roads and points of access are installed prior to final for occupancy.
3) Prior to final approval for any development project, fire access roadways shall be complete with final lifts of asphalt, curbs and gutters, fire hydrant markers in accordance with SBCFPD Standard W-2, and approved signage and striping in accordance with SBCFPD Standard A-2.
TEMPORARY FIRE ACCESS ROADS
1) When approved by the Fire Code Official, temporary access roads that meet all applicable requirements of SBCFPD Standards may be installed during construction in lieu of permanent access roadways and maintained in place for a maximum period of one (1) year. 2) Temporary fire access roads shall be designed by a registered professional engineer and submitted to the SBCFPD for approval in accordance with this Standard. Such roadways may be designed and constructed of any materials that will provide safe, all-weather drivable surface, provided these are evaluated by the design engineer and meet all applicable requirements of this Standard.
MAINTENANCE
1) All fire apparatus access roads, private or public, shall be maintained unobstructed and in safe, drivable condition for emergency vehicle access, at all times by the property owner or other responsible party.
2) In areas subject to snowfall, all roadways used for fire access shall be cleared of snow and repaired on a continual basis.
3) Landscaping and any other vegetation shall be maintained and cleared horizontally from the edges and extending vertically to fourteen (14) feet, six (6) inches in height for all fire access roads.
Consideration should be given as to the size of mature growth, for each species, so plants will not impede firefighting operations or access.
4) All roadways as well as cul-de-sacs and other required turnarounds shall be free of obstructions, including storage or the parking of vehicles.
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
RECIPROCAL EMERGENCY AND FIRE APPARATUS ACCESS ROADS
1) Emergency and fire apparatus access roads passing through multiple parcels shall have reciprocal agreements complying with the requirements of the San Bernardino County Fire Protection District Fire Code Ordinance, Section 32.
FIREFIGHTER ACCESS TO BUILDINGS
1) Fences, walls, landscaped areas, or other obstructions that may inhibit firefighters from extending hose lines from a fire apparatus parked on a fire access roadway to any building shall have a minimum four-foot (4’-0”) gates or openings provided, at locations acceptable to the Fire Code Official. 2) A minimum four foot (4’-0”) paved pathway shall be provided from fire access roadways to all fire access doors.
FIRE ACCESS ROADS WITHIN STATE RESPONSIBILITY AREAS AND STATE PROJECTS 1) Title 14, California Code of Regulations, State Responsibility Areas Fire Safe Regulations shall be met or exceeded in all developments within State Responsibility Areas, Very High Fire Hazard Severity Zones, and State regulated projects within San Bernardino County Fire Protection District’s jurisdiction. See SBCFPD Standard SRA-1.
AERIAL FIRE APPARATUS ACCESS ROADS
1) Approved aerial fire apparatus access roads shall be provided for buildings that are three (3) stories or more or 30 feet or more in height. Aerial fire apparatus access roads shall have a minimum unobstructed width of thirty (30) feet.
2) Overhead utilities, power lines and any other items that could be considered obstructions shall not be located within the aerial fire apparatus access area. 3) Aerial fire apparatus access shall be provided in locations to enable rapid and safe access to the roof of the building. The locations of all roof access points shall be approved by the Fire Code Official.
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
DIAGRAM A-1.1: ROUTE OF TRAVEL AROUND BUILDINGS
DIAGRAM A-1.2: METHOD OF MEASURING CUL-DE-SAC LENGTH
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
DIAGRAM A-1.3: MULTIPLE POINTS OF ACCESS
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
DIAGRAM A-1.4: SIDES OF BUILDING ACCESS
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
DIAGRAM A-1.5: ROADWAY MEASUREMENT DETAIL
ACCESS ROADWAY
ACCESS ROADWAY
Face of
curb
Face of
curb
Edge of
roadway
Edge of
roadway
Flow
line
Flow
line
ACCESS ROADWAY
CURBED ROAD
FLAT ROAD
ROLLED CURB
ACCESS ROADWAY
Edge of
roadway
A) MIN. 26' MEASURED FROM EDGE OF PROJECTION FROM BUILDING IF LOWEST POINT OF PROJECTION IS LESS THAN 14'6" FROM HIGHEST ELEVATION OF ACCESS ROADWAY >14'6" < 14'6"
B) MIN. 26' MEASURED FROM EDGE OF PROJECTION FROM BUILDING IF LOWEST POINT OF PROJECTION IS EQUAL TO OR GREATER THAN 14'6" FROM HIGHEST ELEVATION OF ACCESS ROADWAY Edge of
roadway
MIN. 26' MEASURED FROM FLOW LINE
MIN. 26' MEASURED FROM EDGE OF ROADWAY
MIN. 26' MEASURED FROM FLOW LINE
EDGE OF BUILDING OR PROJECTION
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
DIAGRAM A-1.6: PARKING ON FIRE ACCESS ROADWAYS
26' MINIMUM UNOBSTRUCTED
ACCESS
PARKING
ALLOWED
NO PARKING
FIRE LANE
NO PARKING
FIRE LANE
26' MINIMUM UNOBSTRUCTED
ACCESS
PARKING
ALLOWED
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
DIAGRAM A-1.7: ROADWAY MEDIAN BREAKS
DIAGRAM A-1.8: ROADWAY TURNOUT DETAILS
20' MINIMUM
600' MAXIMUM
BETWEEN
BREAKS IN
MEDIAN
50'
MAX
ONE WAY ONLY
20' MINIMUM
ROADWAYS WITH RAISED MEDIAN ONE WAY FIRE ACCESS
6' MIN.
50' MIN. LENGTH
600' MAXIMUM BETWEEN
TURNOUTS
TURNOUTS SHALL BE PROVIDED AT EACH HYDRANT
AND OTHERWISE REQUIRED BY THE SBCoFD
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
DIAGRAM A-1.9: ROADWAY GRADE DETAIL
DIAGRAM A-1.10: TURNING RADIUS DETAIL
19'
45'
45'
FIRE ACCESS ROAD
TWO-WAY TRAFFIC
20'
32'
32'
20'
FIRE ACCESS
ROAD
ONE-WAY
TRAFFIC
26'
26'
6"
10'-0"
5%
Roadway
SAN BERNARDINO COUNTY FIRE PROTECTION DISTRICT
COMMUNITY SAFETY DIVISION
620 South ‘E’ Street
San Bernardino, CA 92415-0179
(909) 386-8400
FIRE PREVENTION STANDARD
FIRE APPARATUS ACCESS ROAD DESIGN, CONSTRUCTION AND MAINTENANCE
Standard Number
A - 1
Revision Date:
July 1, 2023
DIAGRAM A-1.11: ROADWAY CURVES DIAGRAM A-1.12: HAMMERHEAD TURNAROUND DETAIL
DIAGRAM A-1.13: CUL-DE-SAC TURNAROUND DETAIL
50'
R 19'
R 45'
26'
R= 38'-45'
Exhibit 7
E-Group PS Solar Project CDFW Streambed Mapping
1601696054.3
MEMORANDUM
To: Eric Weiss, CDFW
From: Brock Ortega, Dudek
Britney Schultz, Dudek
Subject: E-Group PS Solar Project CDFW Streambed Mapping Date: September 11, 2025
cc: Joshua Saunders, Dudek; Robert Smith, K&L Gates; Peter Bobro, E-Group PS LLC Attachments: A–Figures
B–ARDR, Mapping Episodic Stream Activity (MESA) Forms, and Ordinary High Water Mark (OHWM) Forms
C–Hydrology and Hydraulics Technical Study
D–Photo Documentation
Based on feedback received from California Department of Fish and Wildlife (CDFW) staff during the May 29, 2025, consultation meetings attended by E-Group PS LLC (Peter Bobro), K&L Gates LLP (Robert Smith), Dudek staff, and staff from both CDFW and the United States Fish and Wildlife Services, CDFW recommended reviewing identified areas of interest within the project impact area for additional stream delineation based on their January and April 2025 site visits. The information contained in this memorandum provides further descriptions of the methodology used and additional analysis in response to comments received during the May 29, 2025, meeting. Based on Dudek’s understanding of CDFW’s definition of streambed set forth under California Fish and Game Code 1602, all areas within the site have been accurately and appropriately mapped based on CDFW’s preferred methods (i.e., Cowardin method of waters classification [Cowardin et al. 1979] and Mapping Episodic Stream Activity [MESA] guidelines [Brady and Vyverberg 2013]).
1 Background and History
Dudek conducted a formal aquatic resources delineation within the approximate 241.3-acre project site on April 28 and August 9, 2023, and June 17, 2024 (Figure 1, Jurisdictional Delineation Results, in Attachment A, Figures).
Dudek prepared an Aquatic Resources Delineation Report (Attachment B) and Biological Resources Technical Report (Dudek 2025) summarizing the methods and results of the delineation. Dudek also prepared a Hydrology and Hydraulic Technical Study for the E-Group PS Solar Project (Attachment C), which was reviewed and supported the formal aquatic resources delineation results.
E-Group PS LLC, K&L Gates, and Dudek initiated coordination with the United States Fish and Wildlife Services and CDFW (hereafter collectively referred to as Wildlife Agencies) on the project’s forthcoming submittals of the CDFW Incidental Take Permit for impacts to the federally and state-listed threatened Mojave desert tortoise (desert tortoise; Gopherus agassizii) and state-listed candidate endangered burrowing owl (Athene cunicularia) and federal Endangered Species Act Section 10(a)(1)(B) Incidental Take Permit. It was during the May 29, 2025, consultation meetings that CDFW recommend reviewing identified areas of interest for additional stream delineation based on their January and April 2025 site visits.
MEMORANDUM
SUBJECT: E-GROUP PS SOLAR PROJECT CDFW STREAMBED MAPPING 14392 2
SEPTEMBER 2025
2 Regulatory Setting
California Fish and Game Code Sections 1600–1616
CDFW jurisdiction includes ephemeral, intermittent, and perennial watercourses (including dry washes) and lakes characterized by the presence of (1) definable bed and banks and (2) existing fish or wildlife resources. CDFW takes jurisdiction to the top of bank of the stream or to the limit of the adjacent riparian vegetation, which may include desert wash woodlands.
Under California Fish and Game Code Sections 1600–1616, CDFW has the authority to regulate work that will substantially divert or obstruct the natural flow of, or substantially change or use any material from, the bed, channel, or bank of any river, stream, or lake. CDFW also has the authority to regulate work that will deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake. Projects that involve any of the foregoing are required to execute a Lake or Streambed Alteration Agreement. Applications to CDFW must include a complete certified California Environmental Quality Act (CEQA) document.
3 Aquatic Resources Delineation Methods
Prior to conducting the jurisdictional aquatic resources delineation, Dudek reviewed aerial maps from the National Wetlands Inventory (USFWS 2023), the National Hydrography Database (USGS 2023), the Natural Resource Conservation Service (USDA 2023a, 2023b), and historical aerials and topographic maps (Google Earth 2023; NETR 2023). Site-specific topographical data was reviewed in conjunction with aerials, both current and historical, to determine the potential presence of streambeds regulated under CDFW.
Dudek biologists who are experienced in delineating streambeds within the arid west conducted a formal jurisdictional aquatic resources delineation within the approximate 241.3-acre project site on April 28 and August 9, 2023, and June 17, 2024. The delineation was conducted on foot to visually cover the entire project site. Based on the topography of the site, the National Hydrography Database and National Wetlands Inventory mapping, and the Hydrology and Hydraulic Technical Study (Attachment C), the site is characterized by an overall downward slope from south (2,240 feet above mean sea level) to north (2,060 feet above mean sea level).
Therefore, potential features were walked using lateral transects trending south to north (upstream to downstream) and/or north to south (downstream to upstream) to fully investigate fluvial activity, connectivity downstream, existing functions and values, and the presence or absence of defined bed and bank. Areas visible on aerial imagery that look like drainage channels running east–west were also evaluated during the delineation.
These areas could be construed as channels but were formed by off-road vehicle activity, known to occur both north–south and east–west across the site, which easily scars the unconsolidated surface sands and disqualified these features as being mapped as streambeds subject to CDFW jurisdiction. CDFW jurisdictional areas were mapped to include the bank of the stream/channel and outer dripline of adjacent riparian vegetation, as set forth under California Fish and Game Code Section 1602. Watercourse indicators (e.g., bed and bank, break in slope, shelving, scour, changes in soil, sediment sorting, wracking, and changes in vegetation) were used to determine the outer bank of the stream channel.
MEMORANDUM
SUBJECT: E-GROUP PS SOLAR PROJECT CDFW STREAMBED MAPPING 14392 3
SEPTEMBER 2025
Mapping Episodic Stream Activity Methods
All potential streambeds within the project site were evaluated using the MESA guidelines (Brady and Vyverberg 2013). According to the MESA Field Guide to Mapping Episodic Stream Activity, the Photographic Atlas of Indicators of Episodic Stream Activity and the MESA Mapping Protocol are collectively intended to aid in the identification and mapping of episodic streams where water is absent; when combined with aerial photo interpretation of the landscape, correctly identifying and documenting surficial geologic indicators of fluvial activity and inactivity will allow determinations to be made regarding stream presence and the relative recency of fluvial activity. Landforms can then be linked with their processes, and the active watercourse can be differentiated from fluvially inactive uplands, terraces, and abandoned or relict channels. The results are noted to better inform both desert ecosystem conservation plans and sustainable project development.
Six MESA transect forms were taken within the project site during the delineation, and of those six, three MESA transect forms occur within the CDFW identified areas of interest (MESA-T-03, MESA-T-04, and MESA-T-06) as shown on Figure 3, CDFW Aquatic Resources, in Attachment A. All MESA data forms can be found in Attachment B.
Areas with recent fluvial activity exhibiting clearly evident hydrology indicators and absence of terrestrial upland indicators were mapped as CDFW jurisdictional streambeds during the delineation. The delineation also identified numerous erosional rill-like features across the landscape that did not exhibit recent fluvial indicators, and due to their stochastic nature, these areas were left out of the jurisdictional streambed mapping. According to the MESA Field Guide to Mapping Episodic Stream Activity, the Photographic Atlas of Indicators of Episodic Stream Activity, and the MESA Mapping Protocol, a relict feature is defined as a landform remnant that has survived after the processes responsible for its formation have ceased—a channel or remnant of a channel that is no longer part of an active fluvial process (Brady and Vyverberg 2013). Representative photos of the CDFW identified areas of interest within the project site lacking fluvial indicators are included in Attachment D.
Hydrology and Hydraulic Study
Delineating the functional top of bank in a highly erosive channel system can be difficult, especially in arid and semi-arid systems where channel forms can be complex and flow variability is high (Parsons and Abrahams 1994).
After the initial jurisdictional delineation identified an ephemeral channel running south–north directly through the middle of the project site, a Hydrology and Hydraulic Technical Study (Attachment C) was conducted to (a) provide flow statistics to support siting and design of the project’s proposed solar arrays to avoid all impacts to jurisdictional aquatic resources, and (b) evaluate potential for channel migration/avulsion around a proposed bridge crossing.
Initial hydrologic characterization of the project site delineated four small basins with a combined total area of less than 1 square mile (see Figure 5, Project Basins, in Attachment C). The headwaters (upper-ridgelines) for these basins are at or just south of the southern Project boundary, where an outcropping of older stable alluvium (Qoa) has resisted erosion in this larger alluvial valley (can be seen as darker outcroppings in aerial photos). Any flow generated from these basins discharges to an unnamed dry ephemeral axial valley stream that flows from west to east, which terminates in an alluvial fan above the Mesquite Lake playa approximately 3.5 miles downstream. Due to the scarcity of surface cover within the upland areas of the project site (vegetation and biocrusts), moderate forces applied to the surface (e.g., rainfall, wind, and other biotic and abiotic forces such as burrowing and off-road vehicles) easily scar the unconsolidated surface sands, creating and/or modifying rills, depressions, and berms throughout the site, resulting in a perpetually shifting landscape that has the appearance of an alluvial fan. Lastly, with an average annual precipitation of approximately 4 inches and an understanding of the bimodal distribution of wet and dry rainy seasons in California (Zamora-Reyes et al. 2022), there can be years between rainfall events significant enough to generate standing/flowing water through the site.
MEMORANDUM
SUBJECT: E-GROUP PS SOLAR PROJECT CDFW STREAMBED MAPPING 14392 4
SEPTEMBER 2025
In order to assist with evaluating the potential fluvial features in the site, the hydraulics model (Hydrologic Engineering Center River Analysis System) was built utilizing a 2017 1-meter digital elevation model accessed through the United States Geological Survey’s website (Attachment C). This study included a desktop geomorphology assessment of the proposed bridge crossing, which included review of historical aerial photos, photos taken from the jurisdictional delineation, and geologic maps. Due to the small size of the project site’s watersheds, the hydraulics study used the rain-on-grid method where the 100-year 24-hour rainfall was distributed uniformly across the project site’s watersheds to map where and how (depth and velocity) water would flow.
The results of the study were reviewed in conjunction with the aquatic resource delineation and the majority of the modeling aligned with the 2023 delineation results; however, areas that were not previously delineated as jurisdictional under CDFW but were depicted within the modeled 100-year 24-hour runoff event were reassessed in the field on June 17, 2024. Dudek biologists collected additional MESA data forms and photo documentation (Attachment B).
4 Results
4.1 Jurisdictional Aquatic Resource Delineation
The jurisdictional aquatic resources delineation identified five features (NWW-1, NWW-1a, NWW-1b, NWW-1c, and NWW-1d) totaling 7.39 acres of potential CDFW jurisdictional aquatic resources, which are summarized in Table 1 and shown on Figure 1. The five features within the site all correlate with the flowlines mapped in the National Hydrography Dataset (USGS 2023) and riverine features from the U.S. Fish and Wildlife Service’s National Wetlands Inventory (USFWS 2023) (Figure 2, Hydrologic Setting). The mapped CDFW jurisdictional streambeds were primarily unvegetated, and areas of streambeds that overlap the desert-willow–smoketree wash woodland vegetation community were classified as CDFW riparian habitat. The remainder of the project site consists primarily of creosote bush–white bursage scrub and a lower cover of cheesebush–sweetbush scrub, all of which did not contain any associated riparian species. The project was designed to avoid all impacts to jurisdictional aquatic resources.
Table 1. Potential CDFW Jurisdictional Aquatic Resources Within the Project Site Feature Name Description Total Acreage
Streambed (CDFW)
NWW-1 Main drainage channel 0.91
NWW-1a Tributary to NWW-1 1.18
NWW-1b Tributary to NWW-1 0.72
NWW-1c Tributary to NWW-1 0.80
NWW-1d Tributary to NWW-1 0.74
Streambed Subtotal 4.35
Riparian Habitat (CDFW)
NWW-1 Main drainage channel containing desert willow–smoketree wash woodland
2.33
MEMORANDUM
SUBJECT: E-GROUP PS SOLAR PROJECT CDFW STREAMBED MAPPING 14392 5
SEPTEMBER 2025
Table 1. Potential CDFW Jurisdictional Aquatic Resources Within the Project Site Feature Name Description Total Acreage
NWW-1c Tributary to NWW-1 containing desert willow–smoketree wash woodland
0.71 Riparian Habitat Subtotal 3.04
Total 7.39
Notes: CDFW = California Department of Fish and Wildlife.
The five active channels within the project site (NWW-1, NWW-1a, NWW-1b, NWW-1c, and NWW-1d) supported evidence of MESA guideline (Brady and Vyverberg 2013) watercourse indicators, such as bed and bank, break in slope, shelving, scour, changes in soil, sediment sorting, wracking, and changes in vegetation. Field surveys also found erosional rill-like features characterized by the MESA guidelines (Brady and Vyverberg 2013) as discontinuous, shallow depressions lacking continuous indicators of recent episodic flow and lacking evidence of sediment deposition; continuous fluvial features such as channel banks, floodplain, or bar surfaces; and/or bankfull. In addition, many areas within the site that could be construed as active channels are sandy, off-highway vehicle tracks (refer to photographs in Attachment D). The project site has been subject to frequent off-road vehicle activity, which would be eliminated through installation of security fencing and active site control once the project commences construction. Although some of these inactive features are visible on aerial imagery and may appear to be active, the absence of recent watercourse indicators, presence of older alluvium, upland indicators as described in the MESA guidelines (e.g., bioturbation based on presence of burrows [Figure 3]; rounded topographic morphology; and channel abandonment followed by in-place weathering and in-filling by sand and debris), and offhighway vehicle tracks disqualified these features as being mapped as streambeds under CDFW jurisdiction. The Hydrology and Hydraulic Technical Study (Attachment C) for the project was reviewed in the context of the potential jurisdictional aquatic resources within the project site and affirmed the results of the delineation. Refer to Section 4.2, Hydrology and Hydraulics, below for details on the site’s hydrology.
4.1.1 California Department of Fish and Wildlife Areas of Interest Specific to the CDFW identified areas of interest shown on Figure 3 in Attachment A, transect MESA-T-06 was taken across the eastern area of interest. No CDFW jurisdictional aquatic resources were identified. MESA-T-06 is shown in photo points PP-20 and PP-21 in Attachment D, lacking watercourse indicators that would suggest this area is part of a stable or established channel. Furthermore, photo points PP-23, PP-29, PP-31, PP-32, and PP-33 in Attachment D all occur linearly within an area visible on the aerial imagery that could be construed as an active fluvial channel. However, these photos show upland areas frequently containing erosional rill-like features infilled with eolian sand deposition, sparse creosote shrubs, and some off-road vehicle tracks (PP-31 and PP-33) and lacking in recent fluvial indicators that would suggest these areas are part of an established fluvial process. This particular area is representative of the types of stochastic activities occurring outside the jurisdictional aquatic resource mapping within the other CDFW identified areas of interest shown on Figure 3. As stated above, the Hydrology and Hydraulic Technical Study (Attachment C) confirmed the results of the jurisdictional delineation and provided justification for the stable or established channels mapped as CDFW jurisdictional channels and those erosional, rill-like features prone to relocation between rain events due to lack of soil stability and lacking strong evidence of watercourse indicators like those observed in the jurisdictional channels mapped within the site. This is further discussed in Sections 4.2 and 4.3 below.
MEMORANDUM
SUBJECT: E-GROUP PS SOLAR PROJECT CDFW STREAMBED MAPPING 14392 6
SEPTEMBER 2025
4.2 Hydrology and Hydraulics
Based on results from the Hydrology and Hydraulic Technical Study, the site’s hydrology matches the initial jurisdictional delineation in that runoff is captured and maintained through four south–north channels in three basins that discharge into the axial ephemeral channel located along the northern end of the project site1 (for a total of five jurisdictional channels). The four north–south jurisdictional channels running through the proposed project site are well established in the underlying older alluvium (Qoa), which is stable and less prone to channel avulsion or abrupt lateral movement; the larger west–east axial ephemeral channel cuts through the outcropping of the older alluvium approximately 0.5 miles west of the northwestern corner of the project boundary before entering the broader and deeper alluvial valley at the northern project boundary. These jurisdictional channels fall under the “dry ephemeral” classification (Stromberg et al 2015), where water only flows ephemerally in response to the rare significant storm events that occur in this region, and where connectivity to the downstream alluvial fan is even more rare as water is typically lost to recharge through channel infiltration or to evaporation (Troxell 1954; Kennedy/Jenks/ Todd 2007). The primary functions of these flows are to augment groundwater recharge, increase soil moisture (within a narrow corridor of the channel), and albeit infrequently, carry water, nutrients, and sediment to downstream alluvial fans or playas (Brady and Vyverberg 2013; Stromberg et al. 2015; Perkins et al. 2018).
Considering the project site and its associated basins comprise less than 0.3% of the total contributing area to the Mesquite Lake playa watershed (USGS 2017), the functions provided by these jurisdictional channels and basins to the overall watershed are minimal.
Rainfall exceeding soil infiltration and percolation rates in the upland areas of the site is captured by a constantly shifting topography, where the loose sand and poor ground cover promote frequent shifting of rills, depressions, and berms (resultant from fluvial, eolian, and other biotic/abiotic forces). The hydraulics model (Hydrologic Engineering Center River Analysis System) identified numerous discontinuous features throughout the upland areas of the site, but the extent and depth of these features are based on the United States Geological Survey’s 2017 elevation data, which has likely shifted multiple times in the past 8 years. These shifting, discontinuous features have a stochastic nature (e.g., potentially shifting in location between events due to a myriad of biotic and abiotic forces) and therefore do not develop strong evidence of watercourse indicators like those observed in the jurisdictional channels mapped within the site. Furthermore, the functions these discontinuous features provide are the same as those provided throughout the upland areas of the site, which consist of capturing and retaining rainfall (i.e., increased soil moisture with low potential for groundwater recharge) that augments local biological and chemical activity.
4.3 Evaluating the Importance of Function Over
Feature Preservation
In these small arid watersheds with poor groundcover and loose substrate where topographic features are frequently shifting, preservation of hydrologic and ecologic functions of established (i.e., stable) features should take precedent over identifying and preserving stochastic features, which are temporary in nature (i.e., may have only carried water for a single event prior to shifting due to other biotic/abiotic forces) and are not connected to downstream or adjacent waters. The primary functions of the site’s five jurisdictional channels (including the larger axial ephemeral channel at the northern boundary of the site) are to augment groundwater recharge and local soil moisture and transport water, sediment, organics, and inorganics during the infrequent high-intensity rainfall events 1 NWW-1b and 1c are segments of a compound channel associated with Basin 1 (Figure 5 of Attachment C).
MEMORANDUM
SUBJECT: E-GROUP PS SOLAR PROJECT CDFW STREAMBED MAPPING 14392 7
SEPTEMBER 2025
that generate runoff in these regions (Simmers 2005; Brady and Vyverberg 2013; Stromberg et al. 2015; Schoener 2016; Perkins et al. 2018; Flinchum et al. 2020). The larger the ephemeral stream and the more annual rainfall the region experiences, the greater the vegetation density and diversity, and capacity for leaf litter decomposition (Stromberg et al. 2015). The increased density of vegetation is apparent in the five jurisdictional channels within the site. This, along with reasonably identifiable fluvial features, were the basis for recommending that the project preserve these key hydrologic and ecologic functions by avoiding these five jurisdictional channels.
For the potential features identified in the upland areas by CDFW in January and April 2025, their constant reshaping and disconnection from adjacent and/or downstream waters limits their functions to that of confined puddles or disconnected overland flow (i.e., sheetflow), which does not support the downstream xeri-riparian vegetation community or hydrologic functions of the axial dry ephemeral stream to the north. The physical evidence of standing or flowing water in these upland areas CDFW staff identified during their site visit is likely associated with the most recent disturbance event and has the potential to be erased and/or moved with upcoming biotic/abiotic disturbances (e.g., infilled with sand, small mammal burrows). Based on these features being located at the headwater of these smaller arid watersheds and having no connectivity to adjacent or downstream waters, the function of the features identified in these upland areas mimic those of the surrounding upland soils; these are to augment soil moisture and increased localized biological and chemical activity. Due to the temporary nature of these features and their comparable functions to the surrounding upland soils, Dudek recommends evaluating the hydrologic and ecologic functions provided in these upland areas, rather than the features themselves.
Based on current research, the flat grading and shading provided by solar panels, as well as the elimination of offroad vehicles from the area, could preserve, if not improve upon, the functions in these upland areas. This includes the benefits of shading, which reduces near-surface air temperatures and reduces ground heat fluxes, leading to increased local soil moisture, accelerated vegetation growth, and increased vegetation density and richness, and could support the development of biocrust communities, which would increase local carbon uptake (Broadbent et al. 2019; Liu et al. 2019; Heredia-Velásquez et al. 2023). Additionally, proposed grading of the site could promote connection of surface flows generated in the upland areas with the downstream dry ephemeral channels, augmenting streamflow in these features and increasing xeri-riparian soil moisture, groundwater recharge, and transport of sediment and nutrients to the downstream Mesquite Lake alluvial fan. 5 Results and Conclusions
The active channels (NWW-1, NWW-1a, NWW-1b, NWW-1c, and NWW-1d) mapped as CDFW jurisdictional aquatic resources within the project site supported evidence of bed and bank, break in slope, shelving, scour, changes in soil, sediment sorting, wracking, and changes in vegetation. All other areas of the site were evaluated and as documented in the MESA-T-03, MESA-T-04, and MESA-T-06 data forms (Attachment B). The site was determined to have numerous erosional, rill-like features prone to relocation between events due to lack of soil stability, presence of biotic/abiotic forces, and absence of recent fluvial activity (e.g., allowing for eolian sand deposition to fill recent features between events). The hydraulic and geomorphic analyses of the site determined that features identified in the field by CDFW staff in January and April 2025 are associated with a constantly shifting topography (loose substrate with poor groundcover), that they are not connected to adjacent or downstream waters, and that they provide the same functions as the surrounding upland soils. Supporting this claim is the presence of indicators described in the MESA guidelines as upland terrestrial, including bioturbation (i.e., small mammal burrows), surface rounding of landform and wood debris in place, and anthropomorphic disturbances (refer to Attachment D for photographs and Figure 3 of Attachment A). Therefore, based on Dudek’s understanding of CDFW’s definition of
MEMORANDUM
SUBJECT: E-GROUP PS SOLAR PROJECT CDFW STREAMBED MAPPING 14392 8
SEPTEMBER 2025
streambed set forth under California Fish and Game Code 1602, all areas within the site have been accurately and appropriately mapped based on CDFW’s preferred methods (i.e., Cowardin method of waters classification [Cowardin et al. 1979] and MESA guidelines [Brady and Vyverberg 2013]). Furthermore, the project design will preserve, if not augment, the existing hydrologic and ecologic functions of the five jurisdictional streams and the surrounding upland areas.
6 References
Brady, R.H., Vyverberg, K. 2013. Methods to Describe and Delineate Episodic Stream Processes on Arid Landscapes for Permitting Utility-Scale Solar Power Plants. California Energy Commission. Publication Number: CEC-500-2014-013.
Broadbent, A.M., E.S. Krayenhoff, M. Georgescu, and D.J. Sailor. 2019. “The Observed Effects of Utility-Scale Photovoltaics on Near-Surface Air Temperature and Energy Balance.” Journal of Applied Meteorology and Climatology 58: 989–1006. https://journals.ametsoc.org/view/journals/apme/58/5/jamc-d-18-0271.1.pdf Cowardin, L.M., V. Carter, F.C. Golet, and E.T. LaRoe. 1979. Classification of Wetlands and Deepwater Habitats of the United States. FWS/OBS-79/31. Prepared for U.S. Fish and Wildlife Service. December 1979; reprinted 1992. https://www.nrc.gov/docs/ML1801/ML18019A904.pdf.
Dudek. 2025. Biological Resources Technical Report for the E-Group PS Solar Project. Prepared by Dudek.
April 2025.
Flinchum, B.A., E. Banks, M. Hatch, O. Batelaan, J.M. Peeters, and S. Pasquet. 2020. “Identifying Recharge Under Subtle Ephemeral Features in a Flat-Lying Semi-Arid Region Using a Combined Geophysical Approach.” Hydrology and Earth System Sciences 4:4353–4368. https://hess.copernicus.org/articles/24/4353/ 2020/hess-24-4353-2020.pdf
Google Earth. 2023. Historical Aerials and Topographic Maps. Accessed May 2023.
Heredia-Velásquez, A.M., A. Giraldo-Silva, C. Nelson, J. Bethany, P. Kut, J. González-de-Salceda, and D. GarciaPichel. 2023. “Dual Use of Solar Power Plants as Biocrust Nurseries for Large-Scale Arid Soil Restoration.” Nature Sustainability 6:955–964. https://doi.org/10.1038/s41893-023-01106-8.
Kennedy/Jenks/Todd LLC. 2007. Basin Conceptual Model and Assessment of Water Supply and Demand for the Ames Valley, Johnson Valley, and Means Valley Groundwater Basins, Emeryville, CA. 251 pp.
Liu, Y., R.Q. Zhang, Z. Huang, Z. Cheng, M. Lopez-Vicent, X.R. Ma, and G.L. Wu. 2019. “Solar Photovoltaic Panels Significantly Promote Vegetation Recovery by Modifying the Soil Surface Microhabitats in an Arid Sandy Ecosystem.” Land Degradation and Development 30(18): 2177–2186. https://onlinelibrary.wiley.com/ doi/abs/10.1002/ldr.3408.
NETR (Nationwide Environmental Title Research LLC). 2023. Historical Aerials by NETR Online. Accessed May 2023. https://www.historicaerials.com/.
Parsons, A.J., and A.D. Abrahams. 1994. Geomorphology of Desert Environments. Springer.
MEMORANDUM
SUBJECT: E-GROUP PS SOLAR PROJECT CDFW STREAMBED MAPPING 14392 9
SEPTEMBER 2025
Perkins, K.S., D.M. Miller, D.R. Sandquist, M. Macias, and A. Roach. 2018. “Ecohydrologic Changes Caused by Hydrologic Disconnection of Ephemeral Stream Channels in Mojave National Preserve, California.” Vadose Zone Journal 17:180022.https://acsess.onlinelibrary.wiley.com/doi/pdfdirect/10.2136/ vzj2018.01.0022.
Schoener, G. 2016. “Quantifying Transmission Losses in a New Mexico Ephemeral Stream: A Losing Proposition.” Journal of Hydrologic Engineering 22(3). https://www.sscafca.org/wp-content/uploads/2018/01/ GSchoener_TransmissionLoss_AcceptedManuscript.pdf.
Simmers, I. 2005. Understanding Water in a Dry Environment: Hydrological Process in Arid and Semi-Arid Zones. https://api.pageplace.de/preview/DT0400.9781135291082_A38597236/preview-9781135291082_ A38597236.pdf.
Stromberg, J., E. Gallo, K. Lohse, T. Meixner, E. Moody, J. Sabo, and D. Setaro. 2015. Structure and Function of Ephemeral Streams in the Arid and Semiarid Southwest: Implications for Conservation and Management.
July 2015.
Troxell, H.C. 1954. Hydrology of the San Bernardino and Eastern San Gabriel Mountains, California. Hydrologic Investigations, Atlas HA 1. Prepared in cooperation with the San Bernardino Flood Control District. U.S.
Geological Survey, Washington, D.C. https://doi.org/10.3133/ha1.
USDA (U.S. Department of Agriculture). 2023a. “Web Soil Survey.” USDA Natural Resources Conservation Service, Soil Survey Staff. Accessed June 2023. https://websoilsurvey.sc.egov.usda.gov/App/HomePage.htm.
USDA. 2023b. Agricultural Applied Climate Information System (AgACIS). http://agacis.rcc-acis.org/.
USFWS (U.S. Fish and Wildlife Service). 2023. “National Wetlands Inventory.” U.S. Department of the Interior, USFWS. Accessed May 2023. http://www.fws.gov/wetlands/.
USGS (U.S. Geological Survey). 2017. “Watershed Boundary Dataset” [digital GIS data]. Accessed October 2023. https://apps.nationalmap.gov/viewer/.
USGS. 2023. Flow Lines, Water Points, Watershed Boundaries for Hydrologic Units, Water Bodies (GIS data).
National Hydrography Dataset. Last accessed May 2023. http://nhd.usgs.gov/.
Zamora-Reyes, D., E. Broadman, E. Bigio, B. Black, D. Meko, C.A. Woodhouse, and V. Trouet. 2022. “The Unprecedented Character of California’s 20th Century Enhanced Hydroclimatic Variability in a 600-Year Context.” Geophysical Research Letters 49(19): e2022GL099582. https://agupubs.onlinelibrary.wiley.com/ doi/full/10.1029/2022GL099582.
Attachment A
Figures
Date: 8/26/2025 - Last saved by: agreis - Path: Z:\Projects\j1439201\MAPDOC\DOCUMENT\BIO\CDFW\Figure1-JurisdictionalDelineationResults.mxd MESA-T-04
MESA-T-01
NWW-1d
NWW-1b
MESA -T-07
MESA-T-08
MESA-T-05
MESA-T-06
MESA-T-03
MESA-T-02
OHWM-T-3
OHWM-T-1
OHWM-T-10
OHWM-T-2
OHWM-T-9
OHWM-T-4
OHWM-T-7
OHWM-T-11
OHWM-T-8
OHWM-T-5
OHWM-T-6
NWW-1a
NWW-1b
NWW-1c
NWW-1
NWW-1d
NWW-1b
NWW-1b
Two Mile Rd
Timothy Ave
Easy St
Noels Knoll Rd
Carodean Rd
Jurisdictional Delineation Results
E-Group PS Solar Project CDFW Streambed Mapping
SOURCE: County of San Bernardino; Open Street Map; ESRI World Imagery 01 500 ,000
Feet
Project Boundary
Biological Study Area (BSA)
Gen-Tie Alignment
CDFW Jurisdictional Aquatic Resources
Streambed
Riparian Habitat
OHWM Transect
MESA Transect
FIGURE 1
Carodean
Substation
Fortynine
Palms Canyon
Shortz Lake
Copper
Mountain
Indian
Cove-Rattlesnake
Canyon
Mesquite Lake
Two Mile Rd
Lear Ave
Sunrise Rd
Mesquite Lake
Fortynine
Palms CanyonShortz Lake
Hydrologic Setting
E-Group PS Solar Project CDFW Streambed Mapping
SOURCE: USFWS NWI; USGS NHD; County of San Bernardino; Open Street Map; ESRI World Imagery Date: 8/26/2025 - Last saved by: agreis - Path: Z:\Projects\j1439201\MAPDOC\DOCUMENT\BIO\CDFW\Figure2-HydrologicSetting.mxd 02 1,000 ,000
Feet
Project Boundary
Biological Study Area (BSA)
Gen-Tie Alignment
National Hydrography Dataset (NHD) Flowlines
Stream/River
Watershed (HUC 10)
Subwatershed (HUC 12)
WBD Hydrologic Units (Huc 8-12)
Southern Mojave Subasin (HUC 8)
National Wetland Invetory (NWI)
Riverine
FIGURE 2
San
Bernardino
County
Riverside
County
Mesquite Lake
Southern
Mojave
Project Site
Carodean
Substation
Date: 8/26/2025 - Last saved by: agreis - Path: Z:\Projects\j1439201\MAPDOC\DOCUMENT\BIO\CDFW\Figure3-CDFW_AquaticResources.mxd NWW-1c
NWW-1d
NWW-1a
NWW-1a
NWW-1b
NWW-1c
NWW-1a
NWW-1d
NWW-1d
NWW-1
NWW-1
CDFW PP-11
CDFW PP-1
CDFW PP-17
CDFW PP-22
CDFW PP-20, 21, 23
CDFW PP-9
CDFW PP-3
CDFW PP-15
CDFW PP-26
CDFW PP-29
CDFW PP-18
CDFW PP-6
CDFW PP-2
CDFW PP-19
CDFW PP-32
CDFW PP-30
CDFW PP-8
CDFW PP-24, 25
CDFW PP-33
CDFW PP-14 CDFW PP-27
CDFW PP-12
CDFW PP-16
CDFW PP-31
CDFW PP-28
CDFW PP-7
CDFW PP-13
CDFW PP-10
CDFW PP-5
CDFW PP-4
MESA-T-01
MESA-T-05
MESA-T-06
MESA-T-03
MESA-T-04
MESA-T-02
Source: Esri, Maxar, Earthstar Geographics, an
CDFW Aquatic Resources
E-Group PS Solar Project CDFW Streambed Mapping
SOURCE: County of San Bernardino; Open Street Map; ESRI World Imagery 0 250 500Feet
Project Boundary
Biological Study Area (BSA)
Gen-Tie Alignment
Burrow
CDFW Areas of Interest
CDFW Aquatic Resources
Streambeds
Riparian Habitat
MESA Transect
FIGURE 3
Exhibit 8
View Rendering from Joshua Tree National Park and View Rendering from Indian Trail Road
1608410314.1
CITY OF TWENTYNINE PALMS
CITY COUNCIL
RESOLUTION NO. ___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS, CALIFORNIA AMENDING THE
TWENTYNINE PALMS GENERAL PLAN TO ESTABLISH
THE RENEWABLE ENERGY (E) LAND USE DESIGNATION
AND REDESIGNATE CERTAIN PROPERTY FROM RURAL
LIVING/LOW DENSITY RESIDENTIAL DEVELOPMENT –
5-ACRE MNINIMUM (RL-5) TO RENEWABLE ENERGY (E)
WHEREAS, the Twentynine Palms General Plan (“General Plan”) serves as the comprehensive, long-term general plan for the physical development within the City of Twentynine Palms (“City”) pursuant to Government Code section 56100 et seq.; and WHEREAS, K&L Gates LLP on behalf of E-Group Solar LLC (“Applicant”), submitted several applications seeking the approval of General Plan Amendment 23-000001, General Plan Amendment 24-000001, Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, Conditional Use Permit 23-000009, Development Agreement 23-000001, and certification of Environmental Impact Report SCH No. 2024021042 (collectively, the “Project Approvals”) to allow for the rezoning of 241 acres to allow for the development of a 184 acre commercial solar field (the “Solar Project”) and the rezoning of 60 acres of residential land (the “Residential Project”) (the Solar Project and Residential Project collectively referred to herein as the “Project”) on Assessor’s Parcel Numbers 0612-201-01 and 0612-201-05 (the “Property”), which is generally located north of Two Mile Road and west of Noels Knoll Road; and
WHEREAS, in order to establish the Solar Project, and any other commercial solar project in the future, modifications to the City’s General Plan and Development Code are necessary to create a new General Plan Land Use Designation and Zoning Designation; and WHEREAS, the Project Approvals include Development Code Amendment 23- 000016 which would establish a new Renewable Energy (E) land use/zoning district within the City permitting the development of commercial solar fields in the district; and WHEREAS, as a result of the foregoing, Applicant is proposing General Plan Amendment 23-000001 to (1) amend pages LU-15, LU-17, LU-21, LU-27, LU-29, and LU41 of the General Plan as shown on Exhibit A attached hereto and incorporated herein by this reference and (2) amend the Land Use Map identified as Exhibit LU-3 on page LU-19 of the General Plan to re-designate the land set forth in Map Area A of Exhibit B attached hereto and incorporated herein by this reference from Rural Living/Low Density Residential Development – 5 Acre Minimum (RL-5) to Renewable Energy (E); and WHEREAS, Senate Bill 330 generally prohibits local agencies from approving actions that would require or permit less intensive residential uses of property than exist within an
1608410314.1
existing land use designation without a concurrent corresponding increase in residential intensity of uses of property in other parcels in the jurisdiction, resulting in no net loss to residential intensity; and
WHEREAS, General Plan Amendment 24-000001 which accompanies General Plan Amendment 23-000001 will redesignate the portion of the Property indicated on Map Area B of Exhibit B from Rural Living/Low Density Residential Development – 5 Acre Minimum (RL-5) to Single-Family Residential – 1-Acre Minimum (RS-1), which will result in no net loss in residential unit capacity from General Plan Amendment 23-000001; and WHEREAS, an Environmental Impact Report was prepared for the Project in conformance with the California Environmental Quality Act (Pub. Res. Code, §§ 21000 et seq.); and
WHEREAS, a Notice of Preparation (“NOP”) of an Environmental Impact Report for the Project was distributed for a 30-day public review period from February 28, 2024 through March 29, 2024 and a public scoping meeting was scheduled on and occurred on March 21, 2024; and
WHEREAS, a Notice of Availability (“NOA”) of a Draft Environmental Impact Report for the Project (“Draft EIR”) was posted with the State Clearinghouse and published in the Desert Trail, a newspaper of record, on November 24, 2025. An electronic copy of the document was also posted on the City’s website; and,
WHEREAS, a Notice of Intent (“NOI”) to certify an Environmental Impact Report was published in the Desert Trail, a newspaper of record, on January 28, 2026; and WHEREAS, the Draft EIR was made available for a 45-day public review period from December 9, 2025 through January 22, 2026; and
WHEREAS, a Public Hearing notice for the February 17, 2026 Planning Commission meeting was published in the Desert Trail, a newspaper of record, on January 28, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project on or before January 28, 2026 in accordance with City code; and WHEREAS, in accordance with Government Code section 65350 et seq. and Government Code section 65853 et seq., the Planning Commission held a public hearing on February 17, 2026 pursuant to the notice required by law. which was continued to March 3, 2026; and
WHEREAS, at both February 17 and March 3 Planning Commission meetings, the Planning Commission considered the public testimony, Staff Report, and all of the evidence before it; and
1608410314.1
WHEREAS, at the March 3, 2026 Planning Commission meeting, the Planning Commission voted to submit a split recommendation to City Council, with two Commissioners recommending that the City Council (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; and (2) approve the Project Approvals in order to allow for the development of the Project; two Commissioners recommending that the City Council deny the requested Project Approvals; and one Commissioner abstaining; and
WHEREAS, a Public Hearing notice for the March 23, 2026 City Council meeting was published in the Desert Trail, a newspaper of record, on March 11, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project in accordance with City code; and
WHEREAS, on March 23, 2026, the City Council considered the public testimony, Staff Report, and all of the evidence before it and voted to (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; (2) approved General Plan Amendment 23-000001, General Plan Amendment 24-000001, and Conditional Use Permit 23-000009, conditioned upon final approval of the below-referenced ordinances; and (3) conducted a first reading of the ordinances associated with Rezoning 23- 000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001, in order to allow for the development of the Project; and WHEREAS, on March 30, 2026, the City Council will conduct a second reading and consider adoption of the ordinances associated with Rezoning 23-000001, Rezoning 24- 000001, Development Code Amendment 23-000016, and Development Agreement 23- 000001.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated as if set forth in full into this Resolution.
SECTION 2. Findings. The City Council of the City of Twentynine Palms hereby approves General Plan Amendment 23-000001 based upon the following findings:
A. That the amendment will not adversely impact the existing community.
The adoption of standards included in the new Renewable Energy (E) zone, which have been based upon similar standards successfully implemented in other communities, are designed to ensure that renewable energy projects, including the current Solar Project, are appropriately sited and reduce the impact on the existing community through thoughtful and appropriate site location. Given the open space buffers surrounding the
1608410314.1
area of the site proposed for development, and the mitigation measures included in the Environmental Impact Report, this Solar Project will not adversely impact the existing community. The Solar Project is located over 1,400 feet from the closest residence and has been located on the Project site to avoid being visible from the most densely populated residential areas south of Two Mile Road. As stated in the Environmental Impact Report, the Solar Project will not result in significant noise, air quality, lighting or glare impacts to the surrounding community in excess of those permitted under the City’s Municipal Code or General Plan. Mitigation measures and additional zoning code requirements, including a requirement for habitat restoration to reduce dust impacts and a requirement that the Solar Project be decommissioned and removed upon termination of its operation, further limit impacts to the surrounding community.
B. That the amendment is consistent with the intent of the vision, goals and policies of the General Plan as a whole.
This General Plan Amendment follows the implementation policies LU1.4 through LU1.7, and thus is consistent with the vision of the General Plan. Specifically, the General Plan Amendment is consistent with the following General Plan Goals and Policies:
1. Implementation Policy LU 4-8: Incorporate consideration of alternative development standards (parking, road standards, etc.) to the Development Code for non-residential zones to encourage economic development in the City.
The General Plan Amendment complies with this Policy by implementing unique and specific standards for renewable energy projects to facilitate responsible development of renewable energy within the City and encourage economic development.
2. Implementation Policy LU 4-10: Encourage land use decisions that are fiscally responsible and positively affect the City's economic health by creating jobs, generating tax revenue and involving private capital investment.
3. Implementation Policy LU 10-8: Maintain a strong economic base by targeting and attracting new uses that provide high quality development and meet important economic goals such as employment and revenue generation.
The General Plan Amendment furthers these goals by requiring this Project, and other future renewable energy projects, to provide a community benefits package for the City that contributes to the City’s economic health through contributing significant additional revenue to the City.
4. Implementation Policy CO 4-14: Ensure the use of alternative and/or renewable energy sources for all new City facilities. Where and when feasible and practical, retrofit existing City facilities for the use of alternative and/or renewable energy.
1608410314.1
5. Implementation Policy CO 7-4: Develop provisions within the development and building codes to encourage and allow alternative energy facilities and equipment to be installed and developed on individual properties to serve that property.
While the General Plan Amendment goes beyond the promotion of renewable energy sources located at City facilities and individual properties, it aligns with this goal of promoting renewable energy to reduce the City’s greenhouse gas emissions.
C. That the amendment prescribes reasonable controls and standards for affected land uses to ensure compatibility and integrity of those uses with other established uses.
The General Plan Amendment is proposed in conjunction with incorporation of new Development Code regulations associated with renewable energy facilities. The new regulations limit the types of parcels where such uses could be proposed, impose development standards (including setbacks), and establish a number of findings that must be made prior to the approval of any proposed commercial-scale renewable energy facility. These regulations implement reasonable controls and standards for renewable energy facilities to ensure compatibility and integrity of those facilities with other established uses.
D. That the amendment provides for the protection of the general health, safety and/or welfare of the community.
The Solar Project protects the general health, safety and/or welfare of the community by providing a significant source of alternative energy, thereby helping the City reduce regional greenhouse gas emissions and dependence upon fossil fuels. As noted in multiple State policies and regulations, including but not limited to Assembly Bill 205, California has a significant and urgent need for substantial production of renewable energy to meet the State’s goals in reducing greenhouse gas emissions while meeting the increasing energy demands throughout the State. Climate change and greenhouse gas emissions affect the community in a variety of ways, including increased temperatures, weather variability, and reductions in water supply and groundwater storage. This Solar Project would contribute towards State and regional goals of reducing greenhouse gas emissions while protecting the general health, safety, and welfare of the surrounding community to the greatest extent feasible.
SECTION 3. General Plan Amendment. General Plan Amendment 23-000001 to (1) amend pages LU-15, LU-17, LU-21, LU-27, LU-29, and LU-41 of the General Plan as shown on Exhibit A and (2) amend the Land Use Map identified as Exhibit LU-3 on page LU-19 of the General Plan to re-designate the land set forth in Map Area A of Exhibit B from RL-5 to E is hereby approved.
SECTION 4. CEQA. The City Council has reviewed, considered, and by way of adoption of Resolution No. ____, certified the Environmental Impact Report (SCH #2024021042), adopted the Mitigation Monitoring and Reporting Program, and the related Statement of
1608410314.1
Overriding Considerations for this Project. The Environmental Impact Report (SCH# 2024021042) prepared for the Project is complete and adequate for the consideration of this General Plan Amendment.
SECTION 5. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Resolution, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have adopted this Resolution, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 6. Effective Date. This Resolution shall take effect thirty (30) days from the date of adoption of the last of the Project Approvals approved by City. If any of the Project Approvals are denied, not approved, or are otherwise invalidated, this Resolution shall be of no force and effect.
PASSED, APPROVED AND ADOPTED at an adjourned regular meeting of the City Council of the City of Twentynine Palms held on this 23rd day of March, 2026.
1608410314.1
________________________________________
________, Mayor
ATTEST:
_________________________________
Cindy Villescas, CMC, City Clerk
APPROVED AS TO FORM:
_________________________________
A. Patrick Muñoz, City Attorney
I hereby certify that the foregoing is a true copy of Resolution No. ___, duly adopted by the City Council of the City of Twentynine Palms in a meeting held on the __th day of ________, 2026, in Twentynine Palms, California by the following vote, to wit.
AYES: COUNCIL MEMBERS:
NOES:COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
________________________________________
Cindy Villescas CMC, City Clerk
1608410314.1
EXHIBIT A
General Plan Amendment 23-000001 – Text Amendment
[Amended pages begin on following page]
1608410314.1
1608410314.1
1608410314.1
1608410314.1
1608410314.1
1608410314.1
1608410314.1
EXHIBIT B
General Plan Amendment 23-000001 – Land Use Map Amendment
1608411782.1
CITY OF TWENTYNINE PALMS
CITY COUNCIL
RESOLUTION NO. ___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS, CALIFORNIA AMENDING THE
TWENTYNINE PALMS GENERAL PLAN TO
REDESIGNATE CERTAIN PROPERTY FROM RURAL
LIVING/LOW DENSITY RESIDENTIAL DEVELOPMENT –
5-ACRE MNINIMUM (RL-5) TO SINGLE FAMILY
RESIDENTIAL – 1 ACRE MINIMUM (RS-1)
WHEREAS, the Twentynine Palms General Plan (“General Plan”) serves as the comprehensive, long-term general plan for the physical development within the City of Twentynine Palms (“City”) pursuant to Government Code section 56100 et seq.; and WHEREAS, K&L Gates LLP on behalf of E-Group Solar LLC (“Applicant”), submitted several applications seeking the approval of General Plan Amendment 23-000001, General Plan Amendment 24-000001, Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, Conditional Use Permit 23-000009, Development Agreement 23-000001, and certification of Environmental Impact Report SCH No. 2024021042 (collectively, the “Project Approvals”) to allow for the rezoning of 241 acres to allow for the development of a 184 acre commercial solar field (the “Solar Project”) and the rezoning of 60 acres of residential land (the “Residential Project”) (the Solar Project and Residential Project collectively referred to herein as the “Project”) on Assessor’s Parcel Numbers 0612-201-01 and 0612-201-05 (the “Property”), which is generally located north of Two Mile Road and west of Noels Knoll Road; and,
WHEREAS, as part of the Solar Project, the Applicant has proposed City Council approval of General Plan Amendment 23-000001, Rezoning 23-000001, and Development Code Amendment 23-000016 which, if approved, would establish a new General Plan Land Use Designation and Zoning Designation for commercial solar fields, including in Map Area A of Exhibit A attached hereto and incorporated herein by this reference; and WHEREAS, Senate Bill 330 generally prohibits local agencies from approving actions that would require or permit less residential intensive uses of property than exist within an existing land use designation without a concurrent corresponding increase in residential intensity of uses of property in other parcels in the jurisdiction, resulting in no net loss to residential intensity; and
WHEREAS, as a result of the foregoing, Applicant is proposing General Plan Amendment 24-000001 to redesignate the portion of the Property indicated on Map Area B of Exhibit A from Rural Living/Low Density Residential Development – 5 Acre Minimum (RL5) to Single-Family Residential, 1-Acre Minimum (RS-1), which would result in no net loss in residential unit capacity; and
1608411782.1
WHEREAS, an Environmental Impact Report was prepared for the Project in conformance with the California Environmental Quality Act (Pub. Res. Code, §§ 21000 et seq.); and
WHEREAS, a Notice of Preparation (“NOP”) of an Environmental Impact Report for the Project was distributed for a 30-day public review period from February 28, 2024 through March 29, 2024 and a public scoping meeting was scheduled on and occurred on March 21, 2024; and
WHEREAS, a Notice of Availability (“NOA”) of a Draft Environmental Impact Report for the Project (“Draft EIR”) was posted with the State Clearinghouse and published in the Desert Trail, a newspaper of record, on November 24, 2025. An electronic copy of the document was also posted on the City’s website; and,
WHEREAS, a Notice of Intent (“NOI”) to certify an Environmental Impact Report was published in the Desert Trail, a newspaper of record, on January 28, 2026; and WHEREAS, the Draft EIR was made available for a 45-day public review period from December 9, 2025 through January 22, 2026; and
WHEREAS, a Public Hearing notice for the February 17, 2026 Planning Commission meeting was published in the Desert Trail, a newspaper of record, on January 28, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project on or before January 28, 2026 in accordance with City code; and WHEREAS, in accordance with Government Code section 65350 et seq. and Government Code section 65853 et seq., the Planning Commission held a public hearing on February 17, 2026 pursuant to the notice required by law. which was continued to March 3, 2026; and
WHEREAS, at both February 17 and March 3 Planning Commission meetings, the Planning Commission considered the public testimony, Staff Report, and all of the evidence before it; and
WHEREAS, at the March 3, 2026 Planning Commission meeting, the Planning Commission voted to submit a split recommendation to City Council, with two Commissioners recommending that the City Council (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; and (2) approve the Project Approvals in order to allow for the development of the Project; two Commissioners recommending that the City Council deny the requested Project Approvals; and one Commissioner abstaining; and
1608411782.1
WHEREAS, a Public Hearing notice for the March 23, 2026 City Council meeting was published in the Desert Trail, a newspaper of record, on March 11, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project in accordance with City code; and
WHEREAS, on March 23, 2026, the City Council considered the public testimony, Staff Report, and all of the evidence before it and voted to (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; (2) approved General Plan Amendment 23-000001, General Plan Amendment 24-000001, and Conditional Use Permit 23-000009, conditioned upon final approval of the below-referenced ordinances; and (3) conducted a first reading of the ordinances associated with Rezoning 23- 000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001, in order to allow for the development of the Project; and WHEREAS, on March 30, 2026, the City Council will conduct a second reading and consider adoption of the ordinances associated with Rezoning 23-000001, Rezoning 24- 000001, Development Code Amendment 23-000016, and Development Agreement 23- 000001.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated as if set forth in full into this Resolution.
SECTION 2. Findings. The City Council of the City of Twentynine Palms hereby approves General Plan Amendment 24-000001 based upon the following findings:
A. That the amendment will not adversely impact the existing community.
The General Plan Amendment would change a 60-acre area from RL-5 to RS-1. The area to be redesignated would be close to other similarly zoned residential properties, including but not limited to areas east of Sunrise Road, which are also zoned RS-1.
Therefore, the proposed redesignation would be consistent with other properties in the surrounding community. While the Project does not propose any residential development, any future development would be required to comply with the City’s Development Code and Building Code.
B. That the amendment is consistent with the intent of the vision, goals and policies of the General Plan as a whole.
This General Plan Amendment follows the implementation policies LU1.4 through LU1.7, and thus is consistent with the vision of the General Plan. Specifically, the
1608411782.1
General Plan Amendment is consistent with the following General Plan Goals and Policies:
1. Implementation Policy LU 3-3: Provide opportunities for a variety of residential densities to accommodate rural and suburban lifestyles, and housing types for all economic and demographic segments of the City's population, with convenient access to public facilities, employment and shopping.
2. Implementation Policy LU 3-5: Ensure that the provision of housing is consistent with the goals and policies contained in the Housing Element.
3. Goal HS-1: Preserve and improve the conditions of the City’s established housing stock.
4. Implementation Policy HS 2-1: Utilize the Land Use Element, Development Code and other land use controls to provide housing sites that can facilitate and encourage the development of a variety of housing consistent with the City’s identified local needs and its regional housing responsibilities.
5. Implementation Policy HS 2-7: Provide adequate sites for the development of new housing through appropriate land use and zoning designations to accommodate the City’s share of regional housing needs.
The General Plan Amendment meets these goals by preserving the existing permissible housing density within the area consistent with City goals and objectives and State law. The proposed rezone will also assist with the diversification of potentially available housing types in the area.
C. That the amendment prescribes reasonable controls and standards for affected land uses to ensure compatibility and integrity of those uses with other established uses.
Any future development of the Residential Project site will be subject to the existing controls and standards for residential development in R-1 zones provided in the City’s Development Code and Building Code. These standards ensure compatibility and integrity of such uses with other established adjacent uses, which are similar residential uses.
D. That the amendment provides for the protection of the general health, safety and/or welfare of the community.
The General Plan Amendment will be consistent with similar adjacent uses and zoning.
Any future development within the rezone area will be subject to the City’s Development Code and Building Code, which are designed to protect the general health, safety, and/or welfare of the community.
1608411782.1
SECTION 3. General Plan Amendment. General Plan Amendment 24-000001 to amend the Land Use Map identified as Exhibit LU-3 on page LU-19 of the General Plan to redesignate the land set forth in Map Area B of Exhibit A from RL-5 to RS-1 is hereby approved.
SECTION 4. CEQA. The City Council has reviewed, considered, and by way of adoption of Resolution No. ____, certified the Environmental Impact Report (SCH #2024021042), adopted the Mitigation Monitoring and Reporting Program, and the related Statement of Overriding Considerations for this Project. The Environmental Impact Report (SCH# 2024021042) prepared for the Project is complete and adequate for the consideration of this General Plan Amendment.
SECTION 5. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Resolution, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Resolution. The City Council hereby declares that it would have adopted this Resolution, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 6. Effective Date. This Resolution shall take effect thirty (30) days from the date of adoption of the last of the Project Approvals approved by City. If any of the Project Approvals are denied, not approved, or are otherwise invalidated, this Resolution shall be of no force and effect.
PASSED, APPROVED AND ADOPTED at an adjourned regular meeting of the City Council of the City of Twentynine Palms held on this 23rd day of March, 2026.
1608411782.1
________________________________________
________, Mayor
ATTEST:
_________________________________
Cindy Villescas, CMC, City Clerk
APPROVED AS TO FORM:
_________________________________
A. Patrick Muñoz, City Attorney
I hereby certify that the foregoing is a true copy of Resolution No. ___, duly adopted by the City Council of the City of Twentynine Palms in a meeting held on the __th day of ________, 2026, in Twentynine Palms, California by the following vote, to wit.
AYES: COUNCIL MEMBERS:
NOES:COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
________________________________________
Cindy Villescas CMC, City Clerk
1608411782.1
EXHIBIT A
General Plan Amendment 23-000001 – Land Use Map Amendment
1608409202.1
CITY OF TWENTYNINE PALMS
CITY COUNCIL
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS, CALIFORNIA REZONING
CERTAIN PROPERTY FROM LOW-DENSITY
RESIDENTIAL DEVELOPMENT – 5 ACRE MINIMUM (RL-5)
TO RENEWABLE ENERGY (E)
WHEREAS, in 2016, the City Council adopted the Development Code, which governs the use of land within the City of Twentynine Palms (“City”); and WHEREAS, K&L Gates LLP on behalf of E-Group Solar LLC (“Applicant”), submitted several applications seeking the approval of General Plan Amendment 23-000001, General Plan Amendment 24-000001, Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, Conditional Use Permit 23-000009, Development Agreement 23-000001, and certification of Environmental Impact Report SCH No. 2024021042 (collectively, the “Project Approvals”) to allow for the rezoning of 241 acres to allow for the development of a 184 acre commercial solar field (the “Solar Project”) and the rezoning of 60 acres of residential land (the “Residential Project”) (the Solar Project and Residential Project collectively referred to herein as the “Project”) on Assessor’s Parcel Numbers 0612-201-01 and 0612-201-05 (the “Property”), which is generally located north of Two Mile Road and west of Noels Knoll Road; and,
WHEREAS, the Project Approvals include Development Code Amendment 23- 000016 which would establish a new Renewable Energy (E) land use/zoning designation within the City permitting the development of commercial solar fields in the district; and WHEREAS, as a result of the foregoing, Applicant is proposing Rezoning 23-000001 to amend the zoning map in the Development Code to rezone the portion of the Property included as Map Area A of Exhibit A attached hereto and incorporated herein by this reference from Low Density Residential Development – 5 Acre Minimum (RL-5) to Renewable Energy (E); and
WHEREAS, Senate Bill 330 generally prohibits local agencies from approving actions that would require or permit less intensive residential uses of property than exist within an existing zone without a concurrent corresponding increase in intensity of residential uses of property in other parcels in the jurisdiction, resulting in no net loss to residential intensity; and WHEREAS, Rezoning 24-000001 which accompanies Rezoning 23-000001 will redesignate the portion of the Property indicated on Map Area B of Exhibit A from Low Density Residential Development – 5 Acre Minimum (RL-5) to Single-Family Residential, 1- Acre Minimum (RS-1), which will result in no net loss in residential unit capacity from Rezoning 23-000001; and
1608409202.1
WHEREAS, an Environmental Impact Report was prepared for the Project in conformance with the California Environmental Quality Act (Pub. Res. Code, §§ 21000 et seq.); and
WHEREAS, a Notice of Preparation (“NOP”) of an Environmental Impact Report for the Project was distributed for a 30-day public review period from February 28, 2024 through March 29, 2024 and a public scoping meeting was scheduled on and occurred on March 21, 2024; and
WHEREAS, a Notice of Availability (“NOA”) of a Draft Environmental Impact Report for the Project (“Draft EIR”) was posted with the State Clearinghouse and published in the Desert Trail, a newspaper of record, on November 24, 2025. An electronic copy of the document was also posted on the City’s website; and,
WHEREAS, a Notice of Intent (“NOI”) to certify an Environmental Impact Report was published in the Desert Trail, a newspaper of record, on January 28, 2026; and WHEREAS, the Draft EIR was made available for a 45-day public review period from December 9, 2025 through January 22, 2026; and
WHEREAS, a Public Hearing notice for the February 17, 2026 Planning Commission meeting was published in the Desert Trail, a newspaper of record, on January 28, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project on or before January 28, 2026 in accordance with City code; and WHEREAS, in accordance with Government Code section 65350 et seq. and Government Code section 65853 et seq., the Planning Commission held a public hearing on February 17, 2026 pursuant to the notice required by law. which was continued to March 3, 2026; and
WHEREAS, at both February 17 and March 3 Planning Commission meetings, the Planning Commission considered the public testimony, Staff Report, and all of the evidence before it; and
WHEREAS, at the March 3, 2026 Planning Commission meeting, the Planning Commission voted to submit a split recommendation to City Council, with two Commissioners recommending that the City Council (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; and (2) approve the Project Approvals in order to allow for the development of the Project; two Commissioners recommending that the City Council deny the requested Project Approvals; and one Commissioner abstaining; and
1608409202.1
WHEREAS, a Public Hearing notice for the March 23, 2026 City Council meeting was published in the Desert Trail, a newspaper of record, on March 11, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project in accordance with City code; and
WHEREAS, on March 23, 2026, the City Council considered the public testimony, Staff Report, and all of the evidence before it and voted to (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; (2) approved General Plan Amendment 23-000001, General Plan Amendment 24-000001, and Conditional Use Permit 23-000009, conditioned upon final approval of the below-referenced ordinances; and (3) conducted a first reading of the ordinances associated with Rezoning 23- 000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001, in order to allow for the development of the Project; and WHEREAS, on March 30, 2026, the City Council conducted a second reading and approved the ordinances associated with Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated as if set forth in full into this Ordinance.
SECTION 2. Findings. The City Council of the City of Twentynine Palms hereby approves Rezoning 23-000001 based upon the following findings:
A. That the Zone Change is consistent with the intent of the goals and policies of the General Plan. .
The Zone Change is consistent with the following General Plan Goals and Policies:
1. Implementation Policy LU 4-8: Incorporate consideration of alternative development standards (parking, road standards, etc.) to the Development Code for non-residential zones to encourage economic development in the City.
The Zone Change complies with this Policy by facilitating development of a renewable energy project on the Project site to develop renewable energy within the City and encourage economic development.
2. Implementation Policy LU 4-10: Encourage land use decisions that are fiscally responsible and positively affect the City's economic health by creating jobs, generating tax revenue and involving private capital investment.
1608409202.1
3. Implementation Policy LU 10-8: Maintain a strong economic base by targeting and attracting new uses that provide high quality development and meet important economic goals such as employment and revenue generation.
The Zone Change furthers these goals by requiring this Project, and other future renewable energy projects, to provide a community benefits package for the City that contributes to the City’s economic health through contributing significant additional revenue to the City.
4. Implementation Policy CO 4-14: Ensure the use of alternative and/or renewable energy sources for all new City facilities. Where and when feasible and practical, retrofit existing City facilities for the use of alternative and/or renewable energy.
5. Implementation Policy CO 7-4: Develop provisions within the development and building codes to encourage and allow alternative energy facilities and equipment to be installed and developed on individual properties to serve that property.
While the Zone Change goes beyond the promotion of renewable energy sources located at City facilities and individual properties, it aligns with this goal of promoting renewable energy on available land within the City to reduce the City’s greenhouse gas emissions.
B. That the Zone Change prescribes reasonable controls and standards to ensure compatibility with other established uses.
The Solar Project and associated Zone Change comply with the controls and standards implemented through the City’s proposed Energy (E) Development Code Amendment.
Such controls and standards, many of which have been successfully implemented by neighboring jurisdictions to provide reasonable restrictions on renewable energy development, are intended to facilitate the development of renewable energy in areas of the City that are appropriate and ensure that such projects will not have significant adverse impacts on neighboring uses. Compliance with the proposed standards and implementation of the conditions of approval provided in the proposed Conditional Use Permit and mitigation measures incorporated into the Mitigation Monitoring and Reporting Program, proscribe reasonable controls and standards to ensure compatibility with other established uses.
C. That the Zone Change provides reasonable property development rights while protecting environmentally sensitive land uses and species.
As further described in the Environmental Impact Report, mitigation measures have been incorporated into the Environmental Impact Report that would effectively mitigate any potentially significant impacts to environmentally sensitive land uses and
1608409202.1
species. The Environmental Impact Report concludes that the Project would not result in any significant and unavoidable impacts to sensitive land uses and species. The mitigation measures introduced in the Environmental Impact Report, including but not limited to Mitigation Measures BIO-1 through BIO-10, will be placed as conditions of approval on the Project, thus protecting environmentally sensitive land uses and species.
D. That the Zone Change ensures protection of the general health, safety and welfare of the community.
The creation of the Renewable Energy (E) Land Use District protects the general health, safety, and welfare of the community by placing reasonable development standards on the allowable uses associated with that zone. The Project authorized by the Zone Change protects the general health, safety and/or welfare of the community by providing a significant source of alternative energy, thereby helping the City reduce regional greenhouse gas emissions and dependence upon fossil fuels. As noted in multiple State policies and regulations, including but not limited to Assembly Bill 205, California has a significant and urgent need for substantial production of renewable energy to meet the State’s goals in reducing greenhouse gas emissions while meeting the increasing energy demands throughout the State. Climate change and greenhouse gas emissions affect the community in a variety of ways, including increased temperatures, weather variability, and reductions in water supply and groundwater storage. This project would contribute towards State and regional goals of reducing greenhouse gas emissions while protecting the general health, safety, and welfare of the surrounding community to the greatest extent feasible.
SECTION 3. Rezoning. Rezoning 23-000001 to amend the zoning map in the Development Code to rezone the portion of the Property included as Map Area A of Exhibit A attached hereto and incorporated herein by this reference from RL-5 to E is hereby approved.
SECTION 4. CEQA. The City Council has reviewed, considered, and by way of adoption of Resolution No. ____, certified the Environmental Impact Report (SCH #2024021042), adopted the Mitigation Monitoring and Reporting Program, and the related Statement of Overriding Considerations for this Project. The Environmental Impact Report (SCH# 2024021042) prepared for the Project is complete and adequate for the consideration of this Rezoning.
SECTION 5. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
1608409202.1
SECTION 6. Effective Date. This Ordinance shall take effect thirty (30) days from the date of adoption of the last of the Project Approvals approved by City. If any of the Project Approvals are denied, not approved, or are otherwise invalidated, this Ordinance shall be of no force and effect.
SECTION 7. Certification, Notice of Adoption. The City Clerk shall certify to the passage and adoption of this Ordinance, and shall cause to be published within fifteen (15) days after its passage in a newspaper of general circulation and circulated within the City in accordance with Government Code section 36933(a) or, cause this Ordinance to be published in a manner required by law using the alternative summary and posting procedure authorized under Government Code section 36933(c).
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Twentynine Palms held on this 30th day of March, 2026.
1608409202.1
________________________________________
________, Mayor
ATTEST:
_________________________________
Cindy Villescas, CMC, City Clerk
APPROVED AS TO FORM:
_________________________________
A. Patrick Muñoz, City Attorney
I hereby certify that the foregoing is a true copy of Ordinance No. ___, introduced on the __th of _____, 2026 and duly adopted by the City Council of the City of Twentynine Palms in a meeting held on the __th day of ________, 2026, in Twentynine Palms, California by the following vote, to wit.
AYES: COUNCIL MEMBERS:
NOES:COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
________________________________________
Cindy Villescas CMC, City Clerk
1608409202.1
EXHIBIT A
Rezoning 23-000001 – Zoning Amendment
1608401660.1
CITY OF TWENTYNINE PALMS
CITY COUNCIL
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS, CALIFORNIA REZONING
CERTAIN PROPERTY FROM RURAL LIVING/LOW
DENSITY RESIDENTIAL DEVELOPMENT – 5-ACRE
MNINIMUM (RL-5) TO SINGLE FAMILY RESIDENTIAL – 1
ACRE MINIMUM (RS-1)
WHEREAS, in 2016, the City Council adopted the Development Code, which governs the use of land within the City of Twentynine Palms (“City”); and WHEREAS, K&L Gates LLP on behalf of E-Group Solar LLC (“Applicant”), submitted several applications seeking the approval of General Plan Amendment 23-000001, General Plan Amendment 24-000001, Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, Conditional Use Permit 23-000009, Development Agreement 23-000001, and certification of Environmental Impact Report SCH No. 2024021042 (collectively, the “Project Approvals”) to allow for the rezoning of 241 acres to allow for the development of a 184 acre commercial solar field (the “Solar Project”) and the rezoning of 60 acres of residential land (the “Residential Project”) (the Solar Project and Residential Project collectively referred to herein as the “Project”) on Assessor’s Parcel Numbers 0612-201-01 and 0612-201-05 (the “Property”), which is generally located north of Two Mile Road and west of Noels Knoll Road; and,
WHEREAS, as part of the Solar Project, Applicant has proposed City Council approval of General Plan Amendment 23-000001, Rezoning 23-000001, and Development Code Amendment 23-000016 which, if approved, would establish a new General Plan Land Use Designation and Zoning Designation for commercial solar fields, including in Map Area A of Exhibit A attached hereto and incorporated herein by this reference; and WHEREAS, Senate Bill 330 generally prohibits local agencies from approving actions that would require or permit less intensive residential uses of property than exist within an existing zone without a concurrent corresponding increase in intensity of residential uses of property in other parcels in the jurisdiction, resulting in no net loss to residential intensity; and WHEREAS, as a result of the foregoing, Applicant is proposing Rezoning 24-000001 to rezone the portion of the Property indicated on Map Area B of Exhibit A from Rural Living/Low Density Residential Development – 5 Acre Minimum (RL-5) to Single-Family Residential, 1-Acre Minimum (RS-1), which would result in no net loss in residential unit capacity within the city; and
WHEREAS, an Environmental Impact Report was prepared for the Project in conformance with the California Environmental Quality Act (Pub. Res. Code, §§ 21000 et seq.); and
1608401660.1
WHEREAS, a Notice of Preparation (“NOP”) of an Environmental Impact Report for the Project was distributed for a 30-day public review period from February 28, 2024 through March 29, 2024 and a public scoping meeting was scheduled on and occurred on March 21, 2024; and
WHEREAS, a Notice of Availability (“NOA”) of a Draft Environmental Impact Report for the Project (“Draft EIR”) was posted with the State Clearinghouse and published in the Desert Trail, a newspaper of record, on November 24, 2025. An electronic copy of the document was also posted on the City’s website; and,
WHEREAS, a Notice of Intent (“NOI”) to certify an Environmental Impact Report was published in the Desert Trail, a newspaper of record, on January 28, 2026; and WHEREAS, the Draft EIR was made available for a 45-day public review period from December 9, 2025 through January 22, 2026; and
WHEREAS, a Public Hearing notice for the February 17, 2026 Planning Commission meeting was published in the Desert Trail, a newspaper of record, on January 28, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project on or before January 28, 2026 in accordance with City code; and WHEREAS, in accordance with Government Code section 65350 et seq. and Government Code section 65853 et seq., the Planning Commission held a public hearing on February 17, 2026 pursuant to the notice required by law. which was continued to March 3, 2026; and
WHEREAS, at both February 17 and March 3 Planning Commission meetings, the Planning Commission considered the public testimony, Staff Report, and all of the evidence before it; and
WHEREAS, at the March 3, 2026 Planning Commission meeting, the Planning Commission voted to submit a split recommendation to City Council, with two Commissioners recommending that the City Council (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; and (2) approve the Project Approvals in order to allow for the development of the Project; two Commissioners recommending that the City Council deny the requested Project Approvals; and one Commissioner abstaining; and
WHEREAS, a Public Hearing notice for the March 23, 2026 City Council meeting was published in the Desert Trail, a newspaper of record, on March 11, 2026 and posted at City Hall; and
1608401660.1
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project in accordance with City code; and
WHEREAS, on March 23, 2026, the City Council considered the public testimony, Staff Report, and all of the evidence before it and voted to (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; (2) approved General Plan Amendment 23-000001, General Plan Amendment 24-000001, and Conditional Use Permit 23-000009, conditioned upon final approval of the below-referenced ordinances; and (3) conducted a first reading of the ordinances associated with Rezoning 23- 000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001, in order to allow for the development of the Project; and WHEREAS, on March 30, 2026, the City Council conducted a second reading and approved the ordinances associated with Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated as if set forth in full into this Ordinance.
SECTION 2. Findings. The City Council of the City of Twentynine Palms hereby approves Rezoning 24-000001 based upon the following findings:
A. That the Rezoning is consistent with the intent of the goals and policies of the General Plan.
The Rezoning is consistent with the following General Plan Goals and Policies:
1. Implementation Policy LU 3-3: Provide opportunities for a variety of residential densities to accommodate rural and suburban lifestyles, and housing types for all economic and demographic segments of the City's population, with convenient access to public facilities, employment and shopping.
2. Implementation Policy LU 3-5: Ensure that the provision of housing is consistent with the goals and policies contained in the Housing Element.
3. Goal HS-1: Preserve and improve the conditions of the City’s established housing stock.
4. Implementation Policy HS 2-1: Utilize the Land Use Element, Development Code and other land use controls to provide housing sites that can facilitate and encourage the development of a variety of housing consistent with the City’s identified local needs and its regional housing responsibilities.
1608401660.1
5. Implementation Policy HS 2-7: Provide adequate sites for the development of new housing through appropriate land use and zoning designations to accommodate the City’s share of regional housing needs.
The Rezoning meets these goals by preserving the existing permissible housing density within the area consistent with City goals and objectives and State law.
The proposed rezone will also assist with the diversification of potentially available housing types in the area.
B. That the Rezoning prescribes reasonable controls and standards to ensure compatibility with other established uses.
Any future development of the Residential Project site will be subject to the existing controls and standards for residential development in R-1 zones provided in the City’s Development Code and Building Code. These standards ensure compatibility and integrity of such uses with other established adjacent uses, which are similar residential uses.
C. That the Rezoning provides reasonable property development rights while protecting environmentally sensitive land uses and species.
As further described in the Environmental Impact Report, mitigation measures have been incorporated into the Environmental Impact Report that would effectively mitigate any potentially significant impacts to environmentally sensitive land uses and species. The Environmental Impact Report concludes that the Project would not result in any significant and unavoidable impacts to sensitive land uses and species. The mitigation measures introduced in the Environmental Impact Report, including but not limited to Mitigation Measures BIO-1 through BIO-10, will be placed as conditions of approval on the project, thus protecting environmentally sensitive land uses and species.
D. That the Rezoning ensures protection of the general health, safety and welfare of the community.
The Rezoning will be consistent with similar adjacent uses and zoning. Any future development within the rezoned area will be subject to the City’s Development Code and Building Code, which are designed to protect the general health, safety, and/or welfare of the community.
SECTION 3. Rezoning. Rezoning 24-000001 to amend the zoning map in the Development Code to rezone the portion of the Property indicated on Map Area B of Exhibit A from Rural Living/Low Density Residential Development – 5 Acre Minimum (RL-5) to Single-Family Residential, 1-Acre Minimum (RS-1) is hereby approved.
1608401660.1
SECTION 4. CEQA. The City Council has reviewed, considered, and by way of adoption of Resolution No. ____, certified the Environmental Impact Report (SCH #2024021042), adopted the Mitigation Monitoring and Reporting Program, and the related Statement of Overriding Considerations for this Project. The Environmental Impact Report (SCH# 2024021042) prepared for the Project is complete and adequate for the consideration of this Rezoning.
SECTION 5. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 6. Effective Date. This Ordinance shall take effect thirty (30) days from the date of adoption of the last of the Project Approvals approved by City. If any of the Project Approvals are denied, not approved, or are otherwise invalidated, this Ordinance shall be of no force and effect.
SECTION 7. Certification, Notice of Adoption. The City Clerk shall certify to the passage and adoption of this Ordinance, and shall cause to be published within fifteen (15) days after its passage in a newspaper of general circulation and circulated within the City in accordance with Government Code section 36933(a) or, cause this Ordinance to be published in a manner required by law using the alternative summary and posting procedure authorized under Government Code section 36933(c).
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Twentynine Palms held on this 30th day of March, 2026.
1608401660.1
________________________________________
________, Mayor
ATTEST:
_________________________________
Cindy Villescas, CMC, City Clerk
APPROVED AS TO FORM:
_________________________________
A. Patrick Muñoz, City Attorney
I hereby certify that the foregoing is a true copy of Ordinance No. ___, introduced on the __th of _____, 2026 and duly adopted by the City Council of the City of Twentynine Palms in a meeting held on the __th day of ________, 2026, in Twentynine Palms, California by the following vote, to wit.
AYES: COUNCIL MEMBERS:
NOES:COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
________________________________________
Cindy Villescas CMC, City Clerk
1608401660.1
EXHIBIT A
Rezoning 24-000001 – Zoning Amendment
1608463580.1
CITY OF TWENTYNINE PALMS
CITY COUNCIL
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS, CALIFORNIA, ADDING CHAPTER
19.23 AND CHAPTER 19.141 TO THE TWENTYNINE PALMS
DEVELOPMENT CODE
WHEREAS, in 2016, the City Council adopted the Development Code, which governs the use of land within the City of Twentynine Palms (“City”); and WHEREAS, K&L Gates LLP on behalf of E-Group Solar LLC (“Applicant”), submitted several applications seeking the approval of General Plan Amendment 23-000001, General Plan Amendment 24-000001, Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, Conditional Use Permit 23-000009, Development Agreement 23-000001, and certification of Environmental Impact Report SCH No. 2024021042 (collectively, the “Project Approvals”) to allow for the rezoning of 241 acres to allow for the development of a 184 acre commercial solar field (the “Solar Project”) and the rezoning of 60 acres of residential land (the “Residential Project”) (the Solar Project and Residential Project collectively referred to herein as the “Project”) on Assessor’s Parcel Numbers 0612-201-01 and 0612-201-05 (the “Property”), which is generally located north of Two Mile Road and west of Noels Knoll Road; and,
WHEREAS, in order to establish the Solar Project, and any other commercial solar project in the future, modifications to the City’s General Plan and Development Code are necessary to create a new General Plan Land Use Designation and Zoning Designation; and, WHEREAS, as a result of the foregoing, Applicant is proposing Development Code Amendment 23-0000016 to establish the new Renewable Energy (E) land use/zoning district within the City’s Development Code, which, if approved, would generally allow for commercial solar fields subject to certain conditions in certain locations in the City; and WHEREAS, an Environmental Impact Report was prepared for the Project in conformance with the California Environmental Quality Act (Pub. Res. Code, §§ 21000 et seq.); and
WHEREAS, a Notice of Preparation (“NOP”) of an Environmental Impact Report for the Project was distributed for a 30-day public review period from February 28, 2024 through March 29, 2024 and a public scoping meeting was scheduled on and occurred on March 21, 2024; and
WHEREAS, a Notice of Availability (“NOA”) of a Draft Environmental Impact Report for the Project (“Draft EIR”) was posted with the State Clearinghouse and published in the Desert Trail, a newspaper of record, on November 24, 2025. An electronic copy of the document was also posted on the City’s website; and,
1608463580.1
WHEREAS, a Notice of Intent (“NOI”) to certify an Environmental Impact Report was published in the Desert Trail, a newspaper of record, on January 28, 2026; and WHEREAS, the Draft EIR was made available for a 45-day public review period from December 9, 2025 through January 22, 2026; and
WHEREAS, a Public Hearing notice for the February 17, 2026 Planning Commission meeting was published in the Desert Trail, a newspaper of record, on January 28, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project on or before January 28, 2026 in accordance with City code; and WHEREAS, in accordance with Government Code section 65350 et seq. and Government Code section 65853 et seq., the Planning Commission held a public hearing on February 17, 2026 pursuant to the notice required by law, which was continued to March 3, 2026; and
WHEREAS, at both February 17 and March 3 Planning Commission meetings, the Planning Commission considered the public testimony, Staff Report, and all of the evidence before it; and
WHEREAS, at the March 3, 2026 Planning Commission meeting, the Planning Commission voted to submit a split recommendation to City Council, with two Commissioners recommending that the City Council (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; and (2) approve the Project Approvals in order to allow for the development of the Project; two Commissioners recommending that the City Council deny the requested Project Approvals; and one Commissioner abstaining; and
WHEREAS, a Public Hearing notice for the March 23, 2026 City Council meeting was published in the Desert Trail, a newspaper of record, on March 11, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project in accordance with City code; and
WHEREAS, on March 23, 2026, the City Council considered the public testimony, Staff Report, and all of the evidence before it and voted to (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; (2) approved General Plan Amendment 23-000001, General Plan Amendment 24-000001, and Conditional Use Permit 23-000009, conditioned upon final approval of the below-referenced ordinances; and (3) conducted a first reading of the ordinances associated with Rezoning 23-
1608463580.1
000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001, in order to allow for the development of the Project; and WHEREAS, on March 30, 2026, the City Council conducted a second reading and approved the ordinances associated with Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated as if set forth in full into this Ordinance.
SECTION 2. Findings. The City Council of the City of Twentynine Palms hereby approves Development Code Amendment No. 23-000016 based upon the following findings:
A. That the Development Code Amendment is consistent with the intent of the goals and policies of the General Plan.
The Development Code Amendment is necessary to implement appropriate controls and policies associated with the establishment of a new Renewable Energy (E) zone within the City. Moreover, the Development Code Amendment is proposed in conjunction with a General Plan Amendment that establishes a new Renewable Energy (E) land use district. The Development Code and associated General Plan Amendment are consistent with the following General Plan Goals and Policies:
1. Implementation Policy LU 4-8: Incorporate consideration of alternative development standards (parking, road standards, etc.) to the Development Code for non-residential zones to encourage economic development in the City.
The Development Code Amendment complies with this Policy by facilitating development of a renewable energy project on the Project site to develop renewable energy within the City and encourage economic development.
2. Implementation Policy LU 4-10: Encourage land use decisions that are fiscally responsible and positively affect the City's economic health by creating jobs, generating tax revenue and involving private capital investment.
3. Implementation Policy LU 10-8: Maintain a strong economic base by targeting and attracting new uses that provide high quality development and meet important economic goals such as employment and revenue generation.
The Development Code Amendment furthers these goals by requiring this Project, and other future renewable energy projects, to provide a community benefits package for the City that contributes to the City’s economic health through contributing significant additional revenue to the City.
1608463580.1
4. Implementation Policy CO 4-14: Ensure the use of alternative and/or renewable energy sources for all new City facilities. Where and when feasible and practical, retrofit existing City facilities for the use of alternative and/or renewable energy.
5. Implementation Policy CO 7-4: Develop provisions within the development and building codes to encourage and allow alternative energy facilities and equipment to be installed and developed on individual properties to serve that property.
While the Development Code Amendment goes beyond the promotion of renewable energy sources located at City facilities and individual properties, it aligns with this goal of promoting renewable energy on available land within the City to reduce the City’s greenhouse gas emissions.
B. That the Development Code Amendment prescribes reasonable controls and standards to ensure compatibility with other established uses.
The intent of the Development Code Amendment is to prescribe reasonable controls and standards for proposed renewable energy uses within the City to ensure compatibility with other established uses. The proposed standards establish lot size and setback requirements for proposed renewable energy uses and numerous findings that would need to be made prior to the establishment of future renewable energy uses within the City. For example, the Development Code Amendment requires findings as to minimization of visual impacts, impacts to groundwater supply, dust mitigation, consistency with military base operations, and decommissioning requirements.
The proposed Project complies with all proposed standards and controls. The Development Code Amendment proposes new regulations associated with renewable energy facilities. The new regulations limit the types of parcels where such uses could be proposed, impose development standards (including setbacks), and establish a number of findings that must be made prior to the approval of any proposed commercial-scale renewable energy facility. These regulations implement reasonable controls and standards for renewable energy facilities to ensure compatibility and integrity of those facilities with other established uses.
C. That the Development Code Amendment provides reasonable property development rights while protecting environmentally sensitive land uses and species.
As further described in the Environmental Impact Report, mitigation measures have been incorporated into the Environmental Impact Report that would effectively mitigate any potentially significant impacts to environmentally sensitive land uses and species. The Environmental Impact Report concludes that the Project would not result in any significant and unavoidable impacts to sensitive land uses and species. The mitigation measures introduced in the Environmental Impact Report, including but not
1608463580.1
limited to Mitigation Measures BIO-1 through BIO-10, will be placed as conditions of approval on the project, thus protecting environmentally sensitive land uses and species.
D. That the Development Code Amendment ensures protection of the general health, safety and welfare of the community.
The creation of the Energy (E) Land Use District protects the general health, safety, and welfare of the community by placing reasonable development standards on the allowable uses associated with that zone.
SECTION 3. Development Code Amendment. Chapter 19.23 and 19.141 in the form provided on Exhibit A attached hereto and incorporated herein by this reference are hereby added to the Twentynine Palms Development Code.
SECTION 4. CEQA. The City Council has reviewed, considered, and by way of adoption of Resolution No. ____, certified the Environmental Impact Report (SCH #2024021042), adopted the Mitigation Monitoring and Reporting Program, and the related Statement of Overriding Considerations for this Project. The Environmental Impact Report (SCH# 2024021042) prepared for the Project is complete and adequate for the consideration of this Development Code Amendment.
SECTION 5. Severability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 6. Effective Date. This Ordinance shall take effect thirty (30) days from the date of adoption of the last of the Project Approvals approved by City. If any of the Project Approvals are denied, not approved, or are otherwise invalidated, this Ordinance shall be of no force and effect.
SECTION 7. Certification, Notice of Adoption. The City Clerk shall certify to the passage and adoption of this Ordinance, and shall cause to be published within fifteen (15) days after its passage in a newspaper of general circulation and circulated within the City in accordance with Government Code section 36933(a) or, cause this Ordinance to be published in a manner required by law using the alternative summary and posting procedure authorized under Government Code section 36933(c).
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Twentynine Palms held on this 30th day of March, 2026.
1608463580.1
________________________________________
________, Mayor
ATTEST:
_________________________________
Cindy Villescas, CMC, City Clerk
APPROVED AS TO FORM:
_________________________________
A. Patrick Muñoz, City Attorney
I hereby certify that the foregoing is a true copy of Ordinance No. ___, introduced on the __th of _____, 2026 and duly adopted by the City Council of the City of Twentynine Palms in a meeting held on the __th day of ________, 2026, in Twentynine Palms, California by the following vote, to wit.
AYES: COUNCIL MEMBERS:
NOES:COUNCIL MEMBERS:
ABSENT: COUNCIL MEMBERS:
ABSTAIN: COUNCIL MEMBERS:
________________________________________
Cindy Villescas CMC, City Clerk
1608463580.1
EXHIBIT A
Chapter 19.23 and Chapter 19.141
1608463580.1
Chapter 19.23 Energy Land Use District (E)
Sections
19.23.010 Purpose ........................................................................................................ 19.23-8
19.23.020 Description and Intent of Land Uses........................................................... 19.23-8
19.23.030 Allowable Uses and Permit Requirements.................................................. 19.23-8
19.23.040 Development Standards............................................................................... 19.23-8
19.23.010 Purpose
The purpose of this Chapter is to describe the character and intent of the Energy Land Use District (E), identify allowed uses and establish development standards for the district. These regulations are intended to ensure that Commercial Solar Fields are designed and located in a manner that minimizes visual and safety impacts on the surrounding community.
19.23.020 Description and Intent of Land Uses
This district is intended for properties which will contain Commercial Solar Fields and ancillary facilities. This land use district reflects the intent of Senate Bill 100 (Chapter 312, 2018) and Assembly Bill 205 (Chapter 61, 2022), which generally mandate that renewable energy and zero-carbon resources supply 100 percent of electricity in California by 2045 and encourage the development of renewable energy facilities to meet that objective. Commercial Solar Fields are allowed only in this zone within the City of Twentynine Palms.
19.23.030 Allowable Uses and Permit Requirements
Allowed uses and permit requirements for the Energy Land Use District are listed in Table 19.23.030- 1 (Allowed Land Uses and Permit Requirements). The table lists all use-related permits for primary and accessory uses that are permanent in nature. Additional permit requirements are listed in Chapters
19.28 through 19.66 related to permits and procedures. Allowed temporary uses are listed in Chapter
19.34 (Temporary Uses and Standards). Allowed accessory uses include infrastructure required for development and operation of Commercial Solar Fields, including but not limited to gen-tie lines, substations, inverters, transformers, access roads, and security fencing. Additional allowed accessory uses are listed in Chapter 19.70 (Accessory Uses and Structures).
Table 19.23.030-1
Allowed Land Uses and Permit Requirements
Allowed Use E Additional Requirements
Solar fields, commercial 50 acres or under AUP Small Commercial Solar Field Solar fields, commercial over 50 acres CUP Large Commercial Solar Field
1608463580.1
19.23.040 Development Standards
All new land uses and structures or alterations to existing land uses and/or structures in the Energy Zone shall be designed, constructed, and established in compliance with the development standards in Table 19.23.040-1
Table 19.23.030-2
Development Standards
Standard
Minimum Lot Size
Large Solar Field 100 acres
Small Solar Field 15 acres
Setbacks
From a public street
- From a local street 15 feet
- From a collector or secondary street 50 feet
- From an arterial street 100 feet
- From an expressway 150 feet
From existing residential use 200 feet
From adjacent parcels with residential zoning
- Single-Family Residential Zones 200 feet
- Multi-Family Residential or High-Density Residential Zones 100 feet - Rural Living Zones 50 feet
- Open-Space Residential 30 feet
Lot Coverage - Maximum percentage of lot area that may be covered by structures and impervious surfaces
75%
Structure Height 25 feet
1608463580.1
CHAPTER 19.141 COMMERCIAL SOLAR FIELDS
Sections
19.141.010 Purpose
19.141.020 Applicability
19.141.030 Definitions
19.141.040 Permit Required
19.141.050 Conditions of Approval
19.141.060 Additional Findings for Approval
19.141.010 – Purpose
The purpose of this Chapter is to establish regulations for Commercial Solar Fields and align the City’s renewable energy policies with the goals and objectives of Senate Bill 100 (Chapter 312, 2018) and Assembly Bill 205 (Chapter 61, 2022).
19.141.020 – Applicability
The requirements contained in this Chapter shall apply to Commercial Solar Fields processed in accordance with Chapter 19.23 of this Development Code.
19.141.030 – Definitions
A Commercial Solar Field means the components and subsystems that, in combination, convert solar energy into electric or thermal energy primarily for the purpose of off-site consumption, and may include other appurtenant structures and facilities. The definition includes, but is not limited to, photovoltaic power systems and solar thermal systems.
19.141.040 – Permit Required
Commercial Solar Fields shall be subject to the permitting requirements as outlined in Chapter 19.23 and Chapters 19.28 through 19.66 related to permits and procedures. Additionally, all proposed Commercial Solar Field applications shall be required to be filed concurrently with a Development Agreement which shall outline the benefits to the community.
19.141.050 – Conditions of Approval
In approving a Commercial Solar Field, the approving authority may impose appropriate conditions to achieve the purposes of the Development Code and the goals and policies of the adopted General Plan.
19.141.060 – Additional Findings for Approval
The approving authority shall make the following findings in support of the application prior to approving a Commercial Solar Field:
1. The proposed Commercial Solar Field is either:
1608463580.1
a. Sufficiently separated from existing communities and existing/developing rural residential areas so as to avoid adverse effects, or
b. Of a sufficiently small size, provided with adequate setbacks, designed to be lower profile than otherwise permitted, and sufficiently screened from public view so as to not adversely affect the desirability and future development of communities, neighborhoods, and rural residential use.
2. The siting and design of project site access and maintenance roads have been incorporated in the visual analysis for the project and shall minimize visibility from public viewpoints while providing needed access to the development site.
3. The proposed Commercial Solar Field will not adversely affect to a significant degree the availability of groundwater supplies or municipal water supply for existing communities and existing and developing rural residential areas.
4. The proposed Commercial Solar Field will be located in proximity to existing electrical infrastructure, such as transmission lines, utility corridors, and roads, so that:
a. Minimal ground disturbance and above ground infrastructure will be required to connect to the existing transmission grid, considering the location of the project site and the location and capacity of the transmission grid, b. New electrical generation tie lines will be co-located on existing power poles or installed underground whenever possible, and
c. Existing rights-of-way and designated utility corridors will be utilized to the extent practicable.
5. Adequate provision has been made to maintain and promote native vegetation where feasible and avoid the proliferation of invasive weeds during and following construction.
6. The proposed Commercial Solar Field will be located so as to avoid or mitigate impacts to significant cultural and historic resources, as well as sacred landscapes.
7. The proposed Commercial Solar Field will not be located within a floodway designated by the Federal Emergency Management Agency (FEMA), has been evaluated for flood hazard impacts, and will not result in increased flood hazards to upstream or downstream properties.
8. All on-site solar panels, switches, inverters, transformers, and substations shall be located at least one foot above the base flood elevation as shown on the Flood Insurance Rate Maps.
9. The proposed Commercial Solar Field will not preclude access to significant mineral resources.
10. The proposed Commercial Solar Field will avoid modification of scenic natural formations.
11. The proposed Commercial Solar Field will be designed, constructed, and operated so as to minimize dust generation, including provision of sufficient watering of excavated or graded soil during construction to prevent excessive dust. Watering will occur at a minimum of three times daily on disturbed soil areas with active operations, unless dust is otherwise controlled by rainfall or use of a dust palliative, or other approved dust control measure.
12. All clearing, grading, earth moving, and excavation activities will cease during period of winds greater than 20 miles per hour (averaged over one hour), or when dust plumes of 20 percent or greater opacity impact public roads, occupied structures, or neighboring property.
13. For sites where the boundary of a new Commercial Solar Field will be located within onequarter mile of a primary residential structure, an adequate wind barrier will be provided to
1608463580.1
reduce potentially blowing dust in the direction of the residence during construction and ongoing operation of the Commercial Solar Field.
14. Any unpaved roads and access ways will be treated and maintained with a dust palliative or graveled or treated by another approved dust control method to prevent excessive dust, and paving requirements will be applied pursuant to City standards.
15. On-site vehicle speed will be limited to 15 miles per hour.
16. For proposed commercial solar energy generation facilities within two miles of the Joshua Tree National Park boundaries, the location, design, and operation of the proposed Commercial Solar Field will not be a predominant visual feature along the main access roads to the park (Park Boulevard and Utah Trail), nor will it substantially impair views from hiking/nature trails, campgrounds, and backcountry camping areas within the National Park.
17. For proposed facilities within two miles of the boundaries of any active military base, the location, design, and operation of the proposed commercial solar energy facility will not substantially impair the mission of the facility.
18. On terms and in an amount acceptable to the Director, adequate surety is provided for reclamation of Commercial Solar Field sites should energy production cease for a continuous period of 180 days and/or if the site is abandoned.
19. Following the operational life of the project, the project owner shall perform site closure activities to meet federal, state, and local requirements for the rehabilitation and revegetation of the project site after decommissioning. The project owner shall prepare a Closure, Revegetation, and Rehabilitation Plan and submit it to the Planning Division for review and approval prior to building permit issuance. Under this plan, all aboveground structures and facilities shall be removed to a depth of three feet below grade and removed offsite for recycling or disposal. Concrete, piping, and other materials existing below three feet in depth may be left in place. Areas that had been graded shall be restored to original contours unless it can be shown that there is a community benefit for the grading to remain as altered. Succulent plant species native to the area shall be salvaged prior to construction, transplanted into windrows, and maintained for later transplanting following decommissioning. Shrubs and other plant species shall be revegetated by the collection of seeds and re-seeding following decommissioning. Project decommissioning shall be performed in accordance with all other plans, permits, and mitigation measures that would assure the project conforms to applicable requirements and would avoid significant adverse impacts. These plans include the following as applicable:
a. Water Quality Management Plan.
b. Erosion and Sediment Control Plan.
c. Drainage Report.
d. Notice of Intent and Stormwater Pollution Prevention Plan. e. Air Quality Permits.
f. Biological Resources Report.
g. Incidental Take Permit, Section 2081 of the Fish and Game Code. h. Cultural Records Report.
i. The City may require a Phase 1 Environmental Site Assessment be performed at the end of decommissioning to verify site conditions.
1608463580.1
20. The developer and/or operator of an approved Commercial Solar Field shall pay an annual renewable energy impact fee on a per acre basis based upon the specific characteristics, impacts, and proposed benefits of the project. The renewable energy impact fee shall be approved by City Council and incorporated into a Development Agreement approved by the City Council pursuant to Chapter 19.52.
1608388676.1
CITY OF TWENTYNINE PALMS
CITY COUNCIL
RESOLUTION NO. ___
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS, CALIFORNIA APPROVING
CONDITIONAL USE PERMIT (CUP) 23-000009 TO
AUTHORIZE THE DEVELOPMENT OF A 184-ACRE
COMMERCIAL SOLAR FIELD PROJECT
WHEREAS, K&L Gates LLP on behalf of E-Group Solar LLC (“Applicant”), submitted several applications seeking the approval of General Plan Amendment 23-000001, General Plan Amendment 24-000001, Rezoning 23-000001, Rezoning 24-000001, Development Code Amendment 23-000016, Conditional Use Permit 23-000009, Development Agreement 23-000001, and certification of Environmental Impact Report SCH No. 2024021042 (collectively, the “Project Approvals”) to allow for the rezoning of 241 acres to allow for the development of a 184 acre commercial solar field (the “Solar Project”) and the rezoning of 60 acres of residential land (the “Residential Project”) (the Solar Project and Residential Project collectively referred to herein as the “Project”) on Assessor’s Parcel Numbers 0612-201-01 and 0612-201-05 (the “Property”), which is generally located north of Two Mile Road and west of Noels Knoll Road; and
WHEREAS, if the General Plan Amendment 23-000001, General Plan Amendment 24-000001, Rezoning 23-000001, Rezoning 24-000001, and Development Code Amendment 23-000016 are approved, the Solar Project on the Property will be a conditional use, requiring a Conditional Use Permit; and
WHEREAS, as a result of the foregoing, Applicant is proposing Conditional Use Permit 23-000009 to approve the Solar Project subject to the conditions of approval (“Conditions of Approval”) attached as Exhibit A hereto and incorporated herein by this reference; and
WHEREAS, an Environmental Impact Report was prepared for the Project in conformance with the California Environmental Quality Act (Pub. Res. Code, §§ 21000 et seq.); and
WHEREAS, a Notice of Preparation (“NOP”) of an Environmental Impact Report for the Project was distributed for a 30-day public review period from February 28, 2024 through March 29, 2024 and a public scoping meeting was scheduled on and occurred on March 21, 2024; and
WHEREAS, a Notice of Availability (“NOA”) of a Draft Environmental Impact Report for the Project (“Draft EIR”) was posted with the State Clearinghouse and published in the Desert Trail, a newspaper of record, on November 24, 2025. An electronic copy of the document was also posted on the City’s website; and,
1608388676.1
WHEREAS, a Notice of Intent (“NOI”) to certify an Environmental Impact Report was published in the Desert Trail, a newspaper of record, on January 28, 2026; and WHEREAS, the Draft EIR was made available for a 45-day public review period from December 9, 2025 through January 22, 2026; and
WHEREAS, a Public Hearing notice for the February 17, 2026 Planning Commission meeting was published in the Desert Trail, a newspaper of record, on January 28, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project on or before January 28, 2026 in accordance with City code; and WHEREAS, in accordance with Development Code section 19.42.050., the Planning Commission held a public hearing on February 17, 2026, which was continued to March 3, 2026; and
WHEREAS, at both February 17 and March 3, 2026 Planning Commission meetings, the Planning Commission considered the public testimony, Staff Report, and all of the evidence before it and;
WHEREAS, at the March 3, 2026 Planning Commission meeting, the Planning Commission voted to submit a split recommendation to City Council, with two Commissioners recommending that the City Council (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; and (2) approve the Project Approvals in order to allow for the development of the Project; two Commissioners recommending that the City Council deny the requested Project Approvals; and one Commissioner abstaining; and
WHEREAS, a Public Hearing notice for the March 24, 2026 City Council meeting was published in the Desert Trail, a newspaper of record, on March 11, 2026 and posted at City Hall; and
WHEREAS, notice was likewise mailed to all property owners located within 500 feet of the Project site and all others who had requested notifications concerning this Project in accordance with City code; and
WHEREAS, on March 23, 2026, the City Council considered the public testimony, Staff Report, and all of the evidence before it and voted to (1) certify the Final Environmental Impact Report SCH No. 2024021042 and adopt the Statement of Overriding Considerations; (2) approved General Plan Amendment 23-000001, General Plan Amendment 24-000001, and Conditional Use Permit 23-000009, conditioned upon final approval of the below-referenced ordinances; and (3) conducted a first reading of the ordinances associated with Rezoning 23- 000001, Rezoning 24-000001, Development Code Amendment 23-000016, and Development Agreement 23-000001, in order to allow for the development of the Project; and
1608388676.1
WHEREAS, on March 30, 2026, the City Council will conduct a second reading and consider adoption of the ordinances associated with Rezoning 23-000001, Rezoning 24- 000001, Development Code Amendment 23-000016, and Development Agreement 23- 000001.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
TWENTYNINE PALMS DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Recitals. The foregoing recitals are true and correct and are hereby incorporated as if set forth in full into this Resolution.
SECTION 2. Findings. The City Council of the City of Twentynine Palms hereby approves Conditional Use Permit 23-000009 subject to the Conditions of Approval and based upon the following findings:
A. That the proposed design and location of the conditional use and the conditions under which it will be operated are in accordance with the purpose of the Development Code, the zoning regulations applicable to the site, the City of Twentynine Palms General Plan, and other applicable development policies and standards of the City.
The Project is in compliance with the General Plan (as amended).The area of the Project proposed for development of the Solar Project is located in the adopted Renewable Energy (E) zoning district, which includes specific design standards and requirements under Chapter 19.23 of the Development Code (as amended):
1. The minimum lot size is 100 acres. The Solar Project site is 184 acres.
2. The minimum applicable setbacks are 15 feet from local streets, 200 feet from residential uses, and 50 feet from Rural Living (RL-5) zones. The Solar Project is set back 63 feet from RL-5 zoning and property boundaries and is located over 1,400 feet from the closest existing residential use.
3. The Solar Project complies with the lot coverage requirements of no greater than 75% of the lot occupied by structures or impermeable surfaces. No proposed structures will exceed the maximum permissible height of 25 feet.
4. The Solar Project is sufficiently separated from existing communities and existing/developing rural residential areas so as to avoid adverse effects. The Solar Project is located over 1,400 feet away from the nearest existing residence. As described in the Environmental Impact Report, the Solar Project location is sufficiently distant to minimize impacts from air quality, noise, glare, and other potentially adverse effects to residential communities.
5. The siting and design of site access and maintenance roads have been incorporated in the visual analysis for the Solar Project and shall minimize visibility from public viewpoints while providing needed access to the development site. Access roads
1608388676.1
have been included in the visual analysis for the Solar Project. The Solar Project would not impact existing scenic vistas, views from residential neighborhoods south of Two Mile Road, or viewpoints from Two Mile Road. While the Solar Project would be visible from some viewpoints along future extensions of local roads (once improved), these impacts have been mitigated to the maximum extent possible.
6. The proposed Solar Project will not adversely affect to a significant degree the availability of groundwater supplies or municipal water supply for existing communities and existing and developing rural residential areas. As discussed in the Environmental Impact Report, the Solar Project will not utilize groundwater and water demand is anticipated to be minimal. Any such demand would be addressed through water trucked into the Solar Project site and would not impact municipal water supply.
7. The Solar Project will be located in proximity to existing electrical infrastructure, such as transmission lines, utility corridors, and roads, so that:
i. Minimal ground disturbance and above ground infrastructure will be required to connect to the existing transmission grid, considering the location of the project site and the location and capacity of the transmission grid,
ii. New electrical generation tie lines will be co-located on existing power poles or installed underground whenever possible, and
iii. Existing rights-of-way and designated utility corridors will be utilized to the extent practicable.
The Solar Project is located within 1 mile of the existing SCE Carodean Substation. It will require a 0.5-mile gen-tie line to connect from the terminus at the southern end of the access driveway, along the northern edge of Two Mile Road, to the Carodean Substation. The gen-tie line will be located underground and will be located entirely within existing rights-of-way. Alternate site locations evaluated, including those proposed on the eastern side of the City, would require interconnection through existing residential properties and were therefore considered inferior options.
8. Adequate provision has been made to maintain and promote native vegetation where feasible and avoid the proliferation of invasive weeds during and following construction. The Environmental Impact Report incorporates Mitigation Measure AES-1, which requires replanting the Solar Project site with native vegetation after completion of construction, to address this concern.
9. The Solar Project will be located so as to avoid or mitigate impacts to significant cultural and historic resources, as well as sacred landscapes. The Environmental Impact Report includes a cultural and historic resources survey of the Project site, which did not identify any significant cultural or historic resources. The Project
1608388676.1
also incorporates a cultural resources monitoring plan to account for any such resources discovered during construction.
10. The Solar Project will not be located within a floodway designated by the Federal Emergency Management Agency (FEMA), has been evaluated for flood hazard impacts, and will not result in increased flood hazards to upstream or downstream properties. The Solar Project is not located within a floodway designated by FEMA.
As discussed further in the Environmental Impact Report, the Solar Project (including associated grading) avoids existing ephemeral streams, thereby preserving existing drainage on the site.
11. All on-site solar panels, switches, inverters, transformers, and substations shall be located at least one foot above the base flood elevation as shown on the Flood Insurance Rate Maps. The Solar Project design includes racks and transformer pads that comply with this condition, which shall be confirmed upon submission of building and electrical plans.
12. The Solar Project will not preclude access to significant mineral resources. The Solar Project site does not include significant mineral resources.
13. The Solar Project will avoid modification of scenic natural formations. The Solar Project site does not include any scenic natural formations.
14. The Solar Project will be designed, constructed, and operated so as to minimize dust generation, including provision of sufficient watering of excavated or graded soil during construction to prevent excessive dust. Watering will occur at a minimum of three times daily on disturbed soil areas with active operations, unless dust is otherwise controlled by rainfall or use of a dust palliative, or other approved dust control measure. This has been included in the Conditions of Approval.
15. All clearing, grading, earth moving, and excavation activities will cease during period of winds greater than 20 miles per hour (averaged over one hour), or when dust plumes of 20 percent or greater opacity impact public roads, occupied structures, or neighboring property. This has been included in the Conditions of Approval.
16. For sites where the boundary of a new commercial solar field will be located within one-quarter mile of a primary residential structure, an adequate wind barrier will be provided to reduce potentially blowing dust in the direction of the residence during construction and ongoing operation of the commercial solar field. This has been included in the Conditions of Approval.
17. All roads and access ways will be treated and maintained with a dust palliative or graveled or treated by another approved dust control method to prevent excessive dust, and paving requirements will be applied pursuant to City standards. This has been included in the Conditions of Approval.
1608388676.1
18. On-site vehicle speed will be limited to 15 miles per hour. This has been included in the Conditions of Approval.
19. For proposed commercial solar energy generation facilities within two miles of the Joshua Tree National Park boundaries, the location, design, and operation of the proposed commercial solar field will not be a predominant visual feature along the main access roads to the park (Park Boulevard and Utah Trail), nor will it substantially impair views from hiking/nature trails, campgrounds, and backcountry camping areas within the National Park. The Solar Project site is not significantly visible from Joshua Tree National Park. The Environmental Impact Report analysis concludes that views from the south, including from Joshua Tree National Park, would not be significantly impacted by the Solar Project.
20. For proposed facilities within two miles of the boundaries of any active military base, the location, design, and operation of the proposed commercial solar energy facility will not substantially impair the mission of the facility. The Solar Project is not within two miles of any active military base. A glare study prepared for the Solar Project concluded that glare from the solar panels would not impact Marine Corps Air Ground Combat Center operations or flight activities.
21. On terms and in an amount acceptable to the City Manager or Designee, adequate surety is provided for reclamation of commercial solar field sites should energy production cease for a continuous period of 180 days and/or if the site is abandoned. This has been included in the Conditions of Approval.
22. Following the operational life of the Solar Project, the project owner shall perform site closure activities to meet federal, state, and local requirements for the rehabilitation and revegetation of the project site after decommissioning. The Applicant shall prepare a Closure, Revegetation, and Rehabilitation Plan and submit it to the Planning Division for review and approval prior to building permit issuance. This has been included in the Conditions of Approval.
23. The developer and/or operator of an approved commercial solar field shall pay an annual renewable energy impact fee on a per acre basis based upon the specific characteristics, impacts, and proposed benefits of the project. The renewable energy impact fee shall be approved by City Council and incorporated into a Development Agreement approved by the City Council pursuant to Chapter 19.52.
The City Council approved Development Agreement 23-000001 for the Solar Project, which includes an appropriate renewable energy impact fee.
B. That the proposed design and location of the conditional use and the conditions under which it will be operated will not be detrimental to the public health, safety or welfare, or materially injurious to uses, properties or improvements in the vicinity.
The Solar Project has been conditioned to be adequately protective of public health, safety, and welfare. Upon incorporation of the Conditions of Approval and the mitigation measures described in the Mitigation Monitoring and Reporting Program,