4-01721S - Desert Tortoise - Special Provision.pdf

Desert Tortoise 01721S – Page 1 of 5

November 1, 2023

SPECIAL PROVISION

PROJECT # S-R499(417)

PIN # 17228

01721S

DESERT TORTOISE

PART 1 GENERAL

1.1 SECTION INCLUDES

A. Requirements for Desert Tortoise to comply with the Biological Opinions issued by the U.S. Fish and Wildlife Service (USFWS) on September 26, 2002, January 19, 2005, and the pending Biological Opinion. The USFWS believes that the measures to prevent injury or death of desert tortoises and to minimize destruction, loss, degradation, and fragmentation of desert tortoise habitat are necessary and appropriate to minimize the incidental take of desert tortoises. If the incidental take of desert tortoises exceeds that permitted in the biological opinion, causes additional effect to the species, or to critical habitat, operations causing such action must be suspended and formal consultation reinitiated. As provided in 50 CFR Section 402.16, reinitiation of formal consultation is required where discretionary Federal agency involvement or control over the action has been retained (or is authorized by law) and if (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the agency action that may impact listed species or critical habitat in a manner or to an extent not considered in this opinion;

(3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this opinion, or (4) a new species is listed or critical habitat designated that may be affected by the action. In instances where the amount or extent of incidental take is exceeded, any operations causing such take must cease pending reinitiation of Section 7 consultation with USFWS.

1.2 RELATED SECTIONS Not Used

1.3 REFERENCES Not Used

1.4 DEFINITIONS Not Used

1.5 SUBMITTALS Not Used

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PART 2 PRODUCTS Not Used

PART 3 EXECUTION

3.1 DESERT TORTOISE TRAINING

A. All project employees to work within the range of the desert tortoise shall be informed, through an educational program conducted by a qualified desert tortoise biologist, of the occurrence of Mojave desert tortoise in the project area, and of the species threatened status. Information will be included on the life history of the desert tortoise, general tortoise activity patterns, reporting requirements, and specific detailed instructions on the proper techniques to capture and move tortoises that are in imminent danger (ideally, without the tortoises voiding their bladders). Tortoises not in imminent danger shall only be moved by the qualified tortoise biologist.

Project employees shall also be advised as to the definition of “take” under the Act and the potential penalties (up to $25,000 in fines and six months in prison per violation) for taking a federally threatened species in a manner not authorized in the biological opinion. Finally, they shall be informed as to the terms and conditions included in the biological opinion.

'Imminent’ shall mean immediate and unavoidable.

3.2 DEAD OR INJURED DESERT TORTOISE

A. Upon locating a dead or injured desert tortoise, initial notification must be made within one business day to the U.S. Fish and Wildlife Service’s Division of Law Enforcement in Cedar City, Utah at telephone (435) 865- 0861, the U.S. Fish and Wildlife Service’s Ecological Services Office at telephone (801) 975-3330, and the St. George Office of the Utah Division of Wildlife Resources at telephone (435) 688-1426. Instructions for proper handling and disposition of such specimens will be issued by the USFWS’s Division of Law Enforcement consistent with the provisions of the Incidental Take Statement. Care must be taken in handling sick or injured animals to ensure effective treatment and in handling dead specimens to preserve biological material in the best possible state.

3.3 HIBERNATING DESERT TORTOISE

A. Desert tortoises found to be hibernating during construction activities are not to be removed from burrows or dens unless specifically authorized by the USFWS in writing, along with instructions on what to do with the tortoise.

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3.4 ACCESSING AND WORKING ON PROJECT

A. Workers traveling to and from the project will use existing roads to the maximum extent practicable, or alternate flagged routes and locations as identified in the preconstruction phase of the project. The absolute minimum number of vehicles required to complete authorized work will be used. Workers will travel on existing roads and jeep trails whenever they are available. Construction crews will be instructed to carpool to the maximum extent reasonable so that vehicle trips and associated impacts are reduced. Cross-country travel will be avoided unless absolutely necessary, and is prohibited unless authorized and flagged by the qualified desert tortoise biologist.

B. The use of firearms for target practicing or any other kind of recreational shooting is prohibited by any project-related staff. Project-related staff shall not bring any pets on the project sites within or near desert tortoise habitat at any time.

C. Construction and maintenance vehicles shall not exceed a speed of 10 miles per hour in desert tortoise habitat except on Federal, State and County roads, where the posted speed limit must be obeyed.

D. All trash and food items shall be contained immediately when discarded.

Containers must preclude the entrance of both birds and mammals which might be attracted to the garbage. This trash (especially food-related trash) must be properly contained and regularly removed from the project site to reduce the attractiveness of the area to coyotes, common ravens, and other desert tortoise predators. On-site workers must not feed any animals, wild or domestic, on the site.

E. Damage to vegetation within or near desert tortoise habitat will be avoided and minimized whenever possible. Sources of vegetation damage include, but are not limited to, driving over the surface, clearing, grading, crushing as a result of construction, overnight parking, equipment and materials storage, and stockpiling. All activities shall be confined to designated areas outside of potential tortoise habitat. To the extent possible, previously disturbed areas within the project sites will be used for temporary storage areas, equipment sites, and any other surface-disturbing activities. No new disturbance will be allowed off existing roads except where absolutely necessary to accomplish project goals and then only by the absolute minimum number of vehicles necessary.

F. To the maximum extent possible, all vehicle maintenance activities shall be conducted in maintenance facilities. Vehicle maintenance shall not be conducted in areas of undisturbed habitat, unless prior approval from the USFWS is obtained. Precautions shall be taken to ensure that contamination of maintenance sites by fuels, motor oils, grease, ect. does

01721S – Page 4 of 5 not occur and that these materials are contained and properly disposed of off-site. The applicant shall notify appropriate hazmat personnel immediately upon spills of petroleum-based or other toxic materials. At the approval of the hazmat coordinator, the site shall be immediately cleaned up and the materials shall be disposed of as directed by the hazmat coordinator.

3.5 DESERT TORTOISE MONITORING

A. The desert tortoise biologist will coordinate regularly with Eric Hansen of UDOT to keep him informed of monitoring status, actions taken to minimize or avoid adverse effects, and implemented conservation measures.

Contact Information:

Eric Hansen Work (435) 772-6628 Mobile (801) 979-4549 Email erichansen@utah.gov

B. During active construction adjacent to desert tortoise habitat during the active tortoise season (April 1 – June 1) or (September 1 – November 1), a qualified desert tortoise biologist will monitor the construction site. The qualified desert tortoise biologist will verify crews are staying within the construction area, verify that the exclusionary fence has not been damaged and is being properly maintained, and conduct other activities necessary to minimize harm and harassment of desert tortoises. Keep a daily log of monitoring activities. (Qualified desert tortoise biologists will have a bachelor’s degree or graduate degree in biology, ecology, wildlife biology, herpetology, or related fields. He/she must have demonstrated prior field experience using accepted resource agency techniques to survey/monitor for desert tortoises. Field experience means a minimum of 60 days field experience surveying for desert tortoises and tortoise sign. In addition, the surveyor/monitor should have the following qualifications:1) ability to recognize and accurately identify all types of desert tortoise sign and 2) ability to carefully, legibly, and completely record all sign including size of shelter sites, shells, and estimated size of live tortoises. UDOT and the Engineer, as available, will participate with desert tortoise surveys and associated monitoring activities.

3.6 TORTOISE CLEARANCE SURVEY

A. A clearance survey is not required if the time on construction falls within the non-active season for tortoise and Shivwits Milkvetch. Generally, the non-active tortoise season is between November 1 and February 15, though it is subject to change. Milkvetch flowering season begins around April 1. Otherwise, a desert tortoise clearance survey will be conducted during the active season (April 1 – June 1) or (September 1 – November

01721S – Page 5 of 5

1). Any desert tortoises found will be translocated to adjacent BLM land in coordination with the USFWS and the Utah Division of Wildlife Resources.

Surveys and tortoise relocation activities will be conducted in the field by qualified desert tortoise biologists as approved by the USFWS. All surveys, required handling, and burrow excavation and construction shall be conducted following the protocol described in Guidelines for Handling Desert Tortoises During Construction Projects (Desert Tortoise Council, 1994 revised 1999).

END OF SECTION