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United States Department of the Interior FISH AND WILDLIFE SERVICE Sacramento Fish and Wildlife Office In Reply Refer to: 2800 Cottage Way, Suite W-2605 O8ESMF00- Sacramento, California 95825-1846 2012-F-0248 JAN 2 6 2015 ‘Mr. Mark McLoughlin Director of Environmental Services California High-Speed Rail Authority 770 L Street, Suite 800 Sacramento, California 95814 Subject: Compliance with Terms and Conditions of the 2012 Merced to Fresno Biological Opinion Dear Mr. McLoughlin: This is in response to the October 13, 2014, letter (Notification Letter) to the U.S. Fish and Wildlife Service (Service) from the U.S. Department of Transportation, Federal Railroad Administration (FRA) and the California High-Speed Rail Authority (Authority), regarding notification to the Service of project-related activities that occurred outside of the project footprint of Construction Package 1 (CP1) analyzed in the 2012 Merced to Fresno Biological Opinion 08ESMF-2012-F-0248, (2014 MF BO). We received your letter via email on October 21, 2014. Two internal memos from ESA, Inc. Biological Consultants), both dated June 25, 2014 (july Memos), regarding biological surveys conducted on parcels outside of the project footprint, were submitted with the Notification Letter as attachments. The Notification Letter provides details regarding these project-related activities, identifies the San Joaquin kit fox (Vues macrotis muticd) as the Federally-listed species potentially affected by the activities, and proposes additional compensatory mitigation for the loss of habitat that occurred as a result of these activities. Our response to the Notification Letter is provided below pursuant to the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) (Act), and its implementing regulations at CFR 50 412. According to the Notification Letter, on June 13, 2014, a 7-acre parcel described as “Fallow Agriculture” was used as a staging area by the contractor without prior authorization from the FRA and the Authority. Tutor Perini/Zachry/Parsons (Contractor) and the Biological Consultants refer to this 7-acte parcel as the Tutor Perini/Zachry /Parsons Staging Yard (TPZP Yard). The project- related activities that occurred within this parcel included: grading of the first few inches of soil to level the surface; installation of earthen berms for containment and stormwater pollution control; installation of road base and other measures for dust control; installation of a perimeter fence for security; and mobilization of equipment and materials. ‘Mr. Mark McLoughlin. 2 A second 2-acte parcel described as “Annual Grassland” was used as a staging area by the Contractor on June 23, 2014, without prior authorization from the FRA and the Authority. The project-related activities that occurred within this parcel included: installation of silt fencing for stormwater pollution control; grading; and mobilization of equipment and materials. These project-related activities, as described in the Notification Letter, resulted in the loss of 9 acres of suitable habitat for the San Joaquin kit fox, located outside of the project footprint described in the 2012 MF BO and the destruction of a potential San Joaquin kit fox den. Neither of these actions were included in the project description analyzed in the 2012 MF BO. Therefore, exemption from section 9 prohibitions was not provided for any resulting incidental take for the San Joaquin kit fox. A monitoring report, dated June 12, 2014, that was included within the July Memos states that no monitoring or excavation of the potential San Joaquin kit fox den was necessary at that time because it was located 300 feet from the TPZP Yard, and that stakes were posted 30 feet from the potential den to mark the location. However, following a biological survey conducted on June 27, 2014, a decision was made to set up 2 cameta to monitor the den for activity for a petiod of 4 consecutive days. ‘The camera was retrieved and the den was collapsed on July 1, 2014, without notification of and prior approval from the Service. ‘Take for the San Joaquin kit fox was quantified in the 2012 MF BO’s Incidental Take Statement (ITS) as habitat permanently lost within the project footprint according to the project description provided. The project-related activities described in the Notification Letter resulted in significant ground disturbance and degradation. ‘The two sites comprising 9 actes of habitat for the San Joaquin kit fox will be used over several years as staging areas and restoration of these areas following completion of construction of CP1 has not been proposed. Therefore, the Service has determined that the project related activities have resulted in a permanent loss of 9 actes of suitable habitat for the San Joaquin kit fox. ‘The Terms and Conditions of the 2012 MF BO are non-discretionary and must be implemented by the FRA, which bas a continuing duty to regulate the covered activity. Term and Condition (1) provides that the FRA shall ensure that the Authority and all of its contractors fully implement and adhere to the proposed conservation measures. Failure to assume and implement the Tetms and Conditions, or failure to require your contractors to adhere to the Terms and Conditions, may result in a lapse of protective coverage provided by section 7(0)(2) of the Act. The Service has determined that the FRA, the Authority, and their contractors have failed to fully comply with the Terms and Conditions in the 2012 MF BO for the following reasons 1. Project-related activities resulted in the unauthorized take of 9 acres of suitable habitat for the San Joaquin kit fox during the month of June 2014 that were not analyzed in the 2014 MF BO. The FRA and Authority did not provide notification to the Service via telephone until August 29, 2014. The Service was not notified in writing by the FRA and the Authority of these actions until October 21, 2014. 2. The FRA and the Authority are currently in violation of Tetm and Condition 2(a) of the 2012 MF BO because they have failed to provide the weekly updates regarding precise accounting of total acreage to the Service. Mr. Mark McLoughlin 3 3. The FRA and the Authority failed to comply with San Joaquin kit fox conservation measure 3, which states that the Standard Measures for Protection of San Joaquin kit fox Prior to or during Grovad Disturbance (Service 2011) willbe implemented to avoid and minimize ground distucbance-related impacts to this species. This document states that take authorization /pemit is necessary for destruction of dens. The 2012 MF BO did not provide authorization for destruction of dens. 4, The FRA and the Authority failed to comply with San Joaquin kit fox conservation measure 5, which states that dens may be excavated under the directions of a Service approved biologist following Service approval. The Service was never contacted for approval prior to excavation of the den. The Service was not informed that the den was collapsed until a phone conversation that occurred on August 29, 2014, 5. The FRA and the Authority have not provided copies of all field reports, biological survey reports, and daily monitoring reports as proposed in their conservation measures (2012 MF BO) and as requested by Service through several emails and phone conversations. 6. The FRA and the Authority proposed, as a conservation measure, to track take through habitat loss as the project progresses and provide reports to the Service through the Environmental Mitigation Management Assessment (EMMA) system. However, the proposed reports have not been provided to the Service since initiation of project-related activities in May 2012. Therefore, the Service has insufficient information to determine whether the take as exempted in the ITS has been exceeded. ‘The FRA and the Authority have failed to comply with the Terms and Conditions of the 2012 MF BO. Therefore, any take that occurs as a result of project-related activities formerly covered under the 2012 MF BO is no longer exempt from the prohibitions of section 9 of the Act. In addition, the Reinitiation-Closing Statement in the 2012 MF BO states that reinitiation of formal consultation is required when the amount or extent of incidental take is exceeded or when the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat that ‘was not considered in the biological opinion. The Service has determined that the project-related activities described above resulted in take that was not considered and analyzed during formal consultation for the 2012 MF BO; therefore, reinitiation of formal consultation is required. The Service requests to schedule a meeting within 10 business days of receipt of this letter at our office with the FRA and the Authority to discuss these issues, The contractor and their environmental consultants are invited to attend this meeting as well. Please respond to this request at your earliest convenience regarding your availability for this meeting. If you have any questions regarding this letter, please contact Florence Gardipee, Senior Fish and Wildlife Biologist, (Flo_Gardipee@fws.gov), or Thomas Leeman, San Joaquin Valley Division Chief, (Thomas_Leeman@fws.gov) of this office at (916) 414-6600. Sincerely, ), Kira Dan Russell Deputy Assistant Ficld Supervisor ‘Ms. Mark McLoughlin Ce: ‘David Valenstein, U.S. Department of Transportation, Federal Railroad Administrstion, ‘Washington, D.C. Stephanie Perez U.S. Department of Transportation, Federal Railroad Administration, Washington, DC Kathleen Dadey, U.S. Army Corps of Engineers, Sacramento, California Julie Vance, California Department of Fish and Wildlife, Fresno, California

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