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