Desert-Tortoise-Field-Manual_v2009.pdf

DESERT TORTOISE (MOJAVE POPULATION)

FIELD MANUAL

(Gopherus agassizii)

[December 2009] prepared by:

U.S. Fish and Wildlife Service

Warning: This Manual does not authorize individuals to handle desert tortoises. Such authorization comes from both Federal and State wildlife resource agencies, including, at least, those listed above. This document supersedes what was previously titled Guidelines for Handling Desert Tortoises during Construction Projects (Desert Tortoise Council 1994, revised 1999).

Cite as: U.S. Fish and Wildlife Service. 2009. Desert Tortoise (Mojave Population) Field Manual: (Gopherus agassizii). Region 8, Sacramento, California.

ACKNOWLEDGEMENTS

The Desert Tortoise Council provided desert tortoise handling guidelines in 1994. Edward L.

LaRue, Jr. assembled the information and drafted these guidelines on behalf of the Council with input from the U.S. Fish and Wildlife Service (USFWS) field offices in California, Arizona, Nevada, and Utah. Mr. LaRue initiated review of these guidelines in April 1996 and revised them in July 1999. Information was provided by the Desert Tortoise Council, the USFWS, California Department of Fish and Game (CDFG), Utah Division of Wildlife Resources (UDWR), Nevada Department of Wildlife (NDOW), Arizona Game and Fish Department (AGFD), U.S. Bureau of Land Management (BLM), U.S. Geological Survey (USGS), private consultants, universities, Tortoise Group, and other individuals and organizations. The latest document, the Desert Tortoise Field Manual, is a revision of the handling guidelines and assembly/revision of other documents that provide regulatory guidance and requirements for the desert tortoise. The Desert Tortoise Field Manual is a compilation of efforts by many offices of the USFWS with input and review by the CDFG, NDOW, AGFD, UDWR, and consultants. We appreciate the efforts of all involved in this evolving document from the first version in 1994 to the current version.

AGENCY/ORGANIZATION CONTACT INFORMATION

U.S. Fish and Wildlife Service

Desert Tortoise Recovery Office Nevada Fish and Wildlife Office 1340 Financial Boulevard Reno, Nevada 89502

(775) 861-6300

Nevada Fish and Wildlife Office-Las Vegas 4701 North Torrey Pines Drive Las Vegas, Nevada 89130

(702) 515-5230

In California, for Inyo, Kern, Los Angeles, and San Bernardino Counties:

Ventura Fish and Wildlife Office 2493 Portola Road, Ste. B Ventura, California 93003

(805) 644-1766

In California, for Imperial and Riverside Counties, and Joshua Tree National Park and the San Bernardino National Forest in San Bernardino Co:

Carlsbad Fish and Wildlife Office 6010 Hidden Valley Road Carlsbad, California 92009

(760) 431-9440

Utah Fish and Wildlife Office 2369 West Orton Circle West Valley City, Utah 84119

(801) 975-3330

Arizona Fish and Wildlife Office- Flagstaff 323 North Leoux Street, Suite 101 Flagstaff, Arizona 86001

(928) 226-0614

Nevada Department of Wildlife Southern Region

4747 Vegas Drive Las Vegas, Nevada 89108

(702) 486-5127

California Department of Fish and Game

Region 4 (Kern County) 1234 East Shaw Avenue Fresno, California 993710

(559) 243-4005

Region 5 (Los Angeles and San Diego Counties) 4949 Viewridge Avenue San Diego, California 92123

(858) 467-4201

Region 6 (Imperial, Inyo, Riverside, and San Bernardino Counties) 3602 Inland Empire Boulevard Suite C-220 Ontario, California 91764

(909) 484-0167

Utah Division of Wildlife Resources

1470 N Airport Rd Cedar City, Utah 84720

(435) 865-6100

Washington County Field Office 344 East Sunland Drive, Suite #8 St. George, Utah 84790

(435) 688-1426

Arizona Game and Fish Department State Headquarters--Nongame Branch 5000 W. Carefree Highway Phoenix, Arizona 85086

(623) 236-7767

Bureau of Land Management- Nevada Southern Nevada District Office

4701 North Torrey Pines Drive Las Vegas, Nevada 89130

(702) 515-5000

Ely District Office 702 N. Industrial Way

HC 33 Box 33500 Ely, Nevada 89301

(775) 289-1800

Caliente Field Office U.S. Highway 93

P.O. Box 237 Caliente, Nevada 89008

(775) 726-8100

Tonopah Field Office 1553 South Main Street PO Box 911 Tonopah, Nevada 89049

(775) 482-7800

Bureau of Land Management - California California Desert District Office

22835 Calle San Juan de Los Lagos Moreno Valley, California 92553

(951) 697- 5200

Ridgecrest Field Office 300 South Richmond Road

Ridgecrest, California 93555

(760) 384-5400

Barstow Field Office 2601 Barstow Road

Barstow, California 92311

(760) 252-6000

Palm Springs Field Office 1201 Bird Center Drive Palm Springs, California 92262

(760) 833-7100

Needles Field Office 1303 South Hwy 95 Needles, California 92363

(760) 326-7000

El Centro Field Office 1661 South 4th Street El Centro, California 92243

(760) 337-4400

BLM- Utah BLM- Arizona

St. George Field Office Arizona Strip Field Office 345 East Riverside Drive 345 East Riverside Drive St. George, Utah 84790 St. George, Utah 84790

(435) 688-3200 (435) 688-3200

Table of Contents

Title Page

Acknowledgements

Agency/Organization Contact Information

Chapter 1 Purpose

Chapter 2 Procedures for Federal Endangered Species Act Compliance for the Desert Tortoise

Chapter 3 Federal and State Authorizations for Implementing Desert Tortoise Measures Required Under Sections 7 or 10 of the ESA

Chapter 4 Preparing For Any Action That May Occur Within the Range of the Mojave Desert Tortoise

USFWS Desert Tortoise Pre-Project Survey Guidance (Excel Table)

Chapter 5 Preliminary Consideration Before Going to the Field

Chapter 6 Desert Tortoise Clearance Survey Protocol

Chapter 7 Guidelines for Handling Desert Tortoises and Their Eggs

Chapter 8 Desert Tortoise Exclusion Fence

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CHAPTER 1. PURPOSE

The purpose of the Desert Tortoise Field Manual (Manual) is to update and consolidate existing survey and handling protocols, procedures, and applicable Federal regulations related to the federally-threatened desert tortoise – Mojave population (Gopherus agassizii) into one document. This Manual supersedes all previous handling guidelines and procedures documents for the Mojave population of the desert tortoise. This Manual was developed specifically for the Mojave population of the desert tortoise. Additional information on the desert tortoise, including its biology, ecology, and Federal status, can be downloaded at http://www.fws.gov/nevada/desert_tortoise/

This Manual is a consolidation and revision of the following documents:

• Procedures for Endangered Species Act Compliance for the Mojave Desert Tortoise (USFWS 1992a)

• Field Survey Protocol for Any Federal Action that May Occur Within the Range of the Desert Tortoise (USFWS 1992b)

• Field Survey Protocol for Any Non-Federal Action that May Occur Within the Range of the Desert Tortoise (USFWS 1992c)

• Guidelines for Handling Desert Tortoises during Construction Projects, previously prepared by the Desert Tortoise Council (July 1994, revised July 1999)

• Desert Tortoise Exclusion Fence Specifications, prepared by the USFWS (Chapter 8).

This Manual provides guidance for pre-project survey methods to determine the status of the desert tortoise for projects occurring within the species’ range on Federal and non-Federal lands.

The purpose of this guidance is to provide technical assistance to entities to determine whether a biological opinion or incidental take permit may be needed prior to project implementation.

This Manual is also intended for use by Authorized Biologists and desert tortoise Monitors (section 3.1) conducting activities under an Endangered Species Act (ESA) section 7 biological opinion or section 10 incidental take permit and provides guidance on handling desert tortoises that need to be moved out of harm's way or prevented from re-entering a project site.

This Manual does not authorize desert tortoise handling/capturing or any other form of take (See Chapter 2 for definition of “take”) without appropriate Federal and State authorizations. The responsible Federal and State agencies will review the qualifications statement for each potential desert tortoise biologist and authorize him/her to serve as an Authorized desert tortoise Biologist for a given project. The Manual includes methods that are effectively used by professional desert tortoise researchers; as field protocols evolve, they will be updated with new information as it becomes available and posted on-line.

We encourage comments on this Manual; please submit problems encountered and recommendations for improvement to the USFWS (see AGENCY/ORGANIZATION CONTACT INFORMATION section above). In subsequent years, the USFWS will use your input to revise and incorporate new information and methods.

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Literature Cited

Desert Tortoise Council. 1994. Guidelines for handling desert tortoises during construction projects. Edward L. LaRue, Jr., editor. San Bernardino, California. Revised 1999.

U.S. Fish and Wildlife Service. 1992a. Procedures for Endangered Species Act compliance for the Mojave desert tortoise. Regions 1, 2, and 6. October 1992. 18 pages plus appendices.

U.S. Fish and Wildlife Service. 1992b. Field survey protocol for any federal action that may occur within the range of the desert tortoise. January 1992. 16 pages.

U.S. Fish and Wildlife Service. 1992c. Field survey protocol for any non-federal action that may occur within the range of the desert tortoise. January 1992. 22 pages.

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CHAPTER 2. PROCEDURES FOR FEDERAL ENDANGERED SPECIES ACT

COMPLIANCE FOR THE DESERT TORTOISE

On August 4, 1989, the USFWS published an emergency rule listing the Mojave population of the desert tortoise as endangered (54 FR 42270). On April 2, 1990, the USFWS determined the Mojave population of the desert tortoise to be threatened (55 FR

12178). Section 9 of the ESA prohibits the "take" of any federally listed threatened or endangered species without first obtaining the necessary take exemption from the USFWS and state permits where applicable.

Take is defined as: "harming, harassing, pursuing, hunting, shooting, wounding, killing, capturing, collecting, or attempting to engage in any such conduct" (Section 3(18), ESA). Harm is defined as: "significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or shelter" (50 CFR § 17.3(c)). Take also includes modification of habitat that would result in harm to the desert tortoise. There are two ways to legally take a threatened or endangered species; one is through an incidental take statement in a USFWS biological opinion under section 7 of the ESA and the other is through a permit issued by the USFWS under section 10 (refer to Section

2.1.1 for more information on biological opinions and section 2.2 and Chapter 3 for section 10 permits).

For purposes of the ESA, desert tortoise habitat is defined as 1) areas with presence of desert tortoises or desert tortoise sign (e.g., shells, bones, scutes, scats, sheltersites, tracks, egg shell fragments, courtship rings, drinking sites, etc.) that are likely to be part or all of a lifetime home range, 2) dispersal areas (i.e., habitat corridors), or 3) areas suitable for desert tortoises as identified by the USFWS or in the most recent recovery plan for the Mojave population of the desert tortoise (http://www.fws.gov/nevada/desert_tortoise/).

Pre-project surveys for the desert tortoise following the USFWS guidance in Chapter 4 are not expected to result in take and therefore do not require surveyors to first obtain a recovery permit.

However, to ensure quality control and reduce the likelihood of USFWS non-concurrence with survey results, we recommend that each potential surveyor complete and sign the Desert Tortoise Authorized Biologist Request Form (http://www.fws.gov/ventura/speciesinfo/protocols_guidelines/) and submit it to USFWS and the appropriate State agency for review prior to initiating any survey. Upon receiving the survey results, if the USFWS determines that the methods implemented or qualifications of the surveyors were inadequate, the USFWS may not accept the survey results. In such cases, surveys would need to be repeated using approved methods and qualified surveyors.

2.1. Federal Actions

2.1.1.

Consultation under Section 7 of the ESA

Section 7(a)(1) of the ESA requires all Federal agencies, in consultation with the Secretary of the Interior (delegated to the USFWS), to utilize their authorities in furtherance of recovering federally listed species by carrying out programs for the conservation of endangered and threatened species.

http://www.fws.gov/nevada/desert_tortoise/�

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Section 7(a)(2) of the ESA and implementing regulations (50 CFR § 402) require all Federal agencies to consult with the USFWS for certain actions. There are two types of consultations, informal and formal. Informal consultation with the USFWS occurs when the Federal agency determines that an action they propose to authorize, fund, or carry out “may affect” a federally endangered or threatened species or critical habitat. Through the informal consultation process, the Federal agency, in coordination with the USFWS, may develop changes to the proposed action that result in no effect to the listed species, only beneficial effects to the listed species, or may affect but is not likely to adversely affect the listed species. In the first two situations, the consultation process is documented and terminated. In the last situation, the informal consultation process is completed with the USFWS issuing a letter of concurrence.

Section 7(a) regulations of the ESA require each Federal agency to review its actions at the earliest possible time to determine whether any action they propose to authorize, fund, or carry out may adversely affect listed species or adversely modify designated critical habitat. If such a determination is made, formal consultation is required with the USFWS; please contact the USFWS to determine the type of consultation required.

Through completion of the formal section 7 process, the USFWS may issue a biological opinion to the Federal agency stating "no jeopardy/adverse modification" is expected as a result of the proposed action for listed plants and animals, and exempting incidental take of listed animals. A no jeopardy/adverse modification biological opinion concludes that the proposed action will not jeopardize the continued existence of the species or result in adverse modification of designated critical habitat. Without this exemption, the Federal agency would violate section 9 of the ESA if the proposed project were implemented and resulted in take of a listed species.

Federal actions that are nondiscretionary, entirely beneficial to the listed species, or have no adverse effects on listed species are not subject to formal consultation. All actions which require approval by the Federal action agency are considered discretionary. The “may affect” standard applies to those activities that occur in suitable habitat, or habitat considered necessary for the conservation of a listed species. It is the responsibility of the Federal action agency to determine which actions may affect threatened or endangered species or critical habitat, and to initiate consultation accordingly with the USFWS.

Once a Federal agency has determined that its action may adversely affect a listed species or critical habitat, the Federal agency should submit a written request to the USFWS for formal consultation. This request should be accompanied by a biological assessment/evaluation of the action and its impacts (Section 2.3).

The Federal agency requesting formal consultation is responsible for providing the USFWS with the best scientific and commercial data available and relevant to the consultation. The “best data” mean data that are available and/or can be obtained during consultation, and are needed for an adequate review of the effects that an action may have on listed species or critical habitat (50 CFR § 402.14(d)).

Should the Federal action agency determine that the effect to the desert tortoise is entirely beneficial, then formal consultation may not be required. In this case, the action agency may

December 2009 2-3 request concurrence from the USFWS that the action is not likely to adversely affect the desert tortoise through informal consultation. Beneficial actions that are part of a larger action which has not undergone section 7 consultation cannot be considered under informal consultation if the larger action includes adverse effects to the desert tortoise (e.g., construction of a pasture fence within an allotment in desert tortoise habitat which has not yet undergone section 7 consultation).

In such instances, grazing within the allotment is considered to be an “interrelated” and “interdependent” action of the proposed fence. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration. Both interrelated and interdependent actions are considered “effects of the action” (50 CFR § 402.02).

Formal consultation results in a biological opinion issued by the USFWS to the action agency.

The biological opinion makes a determination on whether or not the proposed action subject to consultation is likely to jeopardize the continued existence of the listed species or result in destruction or adverse modification of critical habitat. The finding takes into account the: 1) rangewide status of the species, 2) the environmental baseline condition of the listed species in the action area; 3) the direct, indirect, interrelated, and interdependent effects attributable to the Federal action at hand; and 4) the cumulative effects of State and private actions reasonably certain to occur in the area of the Federal action.

Biological opinions issued by the USFWS will contain the following information:

1. An assessment of the status of the species, both rangewide and within the action area.

2. An analysis of the direct and indirect effects, as well as the effects of interrelated and interdependent activities (50 CFR § 402) and cumulative effects of future non-Federal activities that are reasonably certain to occur in the action area.

3. A determination whether the action is likely or not likely to jeopardize the continued existence of the species, or will result in the destruction or adverse modification of critical habitat. Reasonable and prudent alternatives will be provided, if at all possible, if the biological opinion indicates that the proposed action is likely to jeopardize the continued existence of the species (jeopardy opinion) or result in the destruction or adverse modification of critical habitat (adverse modification opinion).

4. An incidental take statement that identifies the anticipated level of incidental take that is expected to occur and provides mandatory reasonable and prudent measures and mandatory terms and conditions for minimizing any incidental take exempted in the biological opinion. This includes monitoring and reporting requirements.

5. Conservation recommendations that, if implemented, would minimize impacts and promote the conservation of the species. Conservation recommendations are not mandatory but are intended to provide an opportunity for the agency to further

December 2009 2-4 the conservation of the desert tortoise as mandated under section 7(a)(1) of the

ESA.

Confusion often arises concerning the difference between reasonable and prudent alternatives and reasonable and prudent measures. “Reasonable and prudent alternatives,” part of a jeopardy or adverse modification opinion, are modifications to the proposed action that will avoid jeopardizing the continued existence of a listed species and/or destroying or adversely modifying the listed species’ critical habitat. The Federal agency decides whether or not to implement reasonable and prudent alternatives. Failure to implement these alternatives, however, can lead to a violation of section 7(a)(2), if the action at any point in time causes a listed species to become jeopardized or results in the destruction or adverse modification of critical habitat. A Federal agency must notify the USFWS of its final decision regarding implementation of reasonable and prudent alternatives. The Federal agency can apply for an ESA exemption if it determines that it cannot comply with the requirements of section 7(a)(2) after consultation with the USFWS.

“Reasonable and prudent measures,” along with terms and conditions that implement them, are mandatory elements that minimize incidental take. Reasonable and prudent measures cannot alter the basic design, location, scope, duration, or timing of the action and may involve only minor changes (50 CFR § 402.14(i)(2)). They include monitoring and reporting requirements.

The Federal action agency must comply with the terms and conditions that implement the reasonable and prudent measures, which the USFWS considers necessary to minimize incidental take, to be in compliance with the ESA.

It is not possible to determine an exact point at which the continued existence of a species would be jeopardized or adverse modification of critical habitat would occur without fully analyzing proposed actions in relation to the existing environmental baseline. Therefore, the USFWS will analyze each Federal action submitted for formal consultation on a case-by-case basis.

Formal consultation is initiated on the date the Federal agency’s request is received by the USFWS if the Federal agency provides all relevant data required by 50 CFR § 402.14(c). Within 10 working days, the USFWS will acknowledge receipt of the consultation request in writing.

Upon reviewing the biological assessment provided by the Federal action agency, the USFWS will advise the Federal agency if insufficient information has been provided, and request additional information needed to complete the formal consultation process.

Formal consultation concludes within 90 days after its initiation unless suspended because of insufficient information or extended in accordance with 50 CFR § 402.14(e). The USFWS may use an additional 45-day period (total of 135 days) to issue the biological opinion to the Federal agency. The USFWS is responsible for ensuring that biological opinions are prepared and delivered within 135 days of initiation of consultation. The USFWS may request an extension of the consultation period.

When the Federal agency asks to review the draft biological opinion, the above time frames continue to apply. However, no final opinion will be issued before 135 days while the agency is reviewing the draft. Once comments on the draft are received by the USFWS, the biological

December 2009 2-5 opinion is finalized and delivered to the Federal agency. If comments on the draft opinion result in major changes or clarifications, a time extension can be sought by the USFWS from the Federal agency.

If relevant data are known to be available to the Federal agency or will be available as a result of ongoing or imminent studies, the USFWS may request the data and any other analyses in accordance with 50 CFR § 402.14(c) or suggest that consultation be postponed until those data or analyses are available. The USFWS has the responsibility to alert the Federal agency (and any applicant) of areas where additional data would provide a better information base from which to formulate a biological opinion. The advice from the USFWS is intended to help the Federal agency to better satisfy its duty to ensure that its proposed action is not likely to jeopardize listed species or adversely modify/destroy critical habitat.

If the Federal agency insists that consultation be completed without the requested data or analyses, the USFWS will document in the biological opinion that certain analyses or data were not provided and why the information would have been helpful in conducting the consultation.

In cases where gaps occur in the data base, the USFWS will evaluate the wors-case scenario and provide the benefit of the doubt to the species concerned.

2.1.2.

Incidental Take under Section 7 of the ESA

In cases where the USFWS concludes through consultation procedures that an action and the resultant take of listed species is not likely to jeopardize the continued existence of the listed species, the USFWS must provide an incidental take statement that specifies the anticipated level (amount or extent) of such taking and those reasonable and prudent measures considered necessary or appropriate to minimize such impact (50 CFR § 402.14(i)). There are two types of take under the ESA, incidental and intentional. An incidental take situation would exist if an otherwise lawful activity would result in the direct loss of a individual desert tortoise, or a sheltersite with a desert tortoise inside. An example would be the unintentional crushing of a desert tortoise by heavy equipment used for the otherwise lawful purpose of constructing a house. The take of the desert tortoise would be “incidental” to construction of the house.

Conversely, intentional take is the purposeful take of a listed species, such as hunting,or capturing a listed species. Because the definition of “fish and wildlife” in the ESA includes eggs, the USFWS must also consider incidental take of desert tortoise eggs in a biological opinion, if such take may occur.

In a biological opinion, the USFWS estimates the amount of incidental take for individual desert tortoises and the amount of habitat that may be modified, and provides reasonable and prudent measures and terms and conditions that minimize adverse effects to the listed species. Under section 7(o)(2) of the ESA, a biological opinion with an incidental take statement operates as an exemption to the section 9 prohibitions against take.

Incidental take may also occur when federally listed wildlife are harmed or harassed by activities within their home range. For desert tortoises, harm may include destruction or degradation of habitat components (e.g., soil, vegetation) necessary for the desert tortoise’s existence.

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However, habitat cannot be “taken” in the context of the ESA. Harassment may occur when a desert tortoise is moved out of the action area to avoid harm. In these situations, the USFWS recommends that the project proponent initiate a dialogue with the USFWS to discuss the likelihood of incidental take.

Any unauthorized take of desert tortoises that results from activities carried out in a manner not consistent with, or not authorized under, the provisions of section 7 of the ESA may be subject to investigation by the USFWS pursuant to section 9 of the ESA. Criminal penalties for illegal take of a threatened species include up to $25,000 in fines and 6 months in prison. Civil penalties may also be imposed as the ESA has a provision for citizen lawsuits.

2.2. Non-Federal Actions

2.2.1.

Conservation Planning under Section 10 of the ESA

A permit from the USFWS pursuant to section 10(a)(1)(B) of the ESA authorizes incidental take for a non-Federal entity much as a section 7 consultation does through an incidental take statement in a biological opinion for a Federal action. Individuals, corporations, non-Federal government entities, State and local governments, Tribes, and other parties can apply for an incidental take permit by submitting an application and a habitat conservation plan (HCP) to the USFWS. “Habitat conservation planning” is the term often used to refer to this process.

Section 10(a)(1)(B) of the ESA requires that the Secretary of the Interior may not issue a permit for incidental take unless the applicant submits a conservation plan. Section 3 of the ESA defines conservation as using all methods and procedures necessary to bring an endangered or threatened species to the point at which measures provided in the ESA are no longer necessary (i.e., recovery). Congress intended that the conservation planning process be used to reduce conflicts between listed species and non-Federal development, and to provide a framework that would encourage creative partnerships between the private sector and local, State, Tribal, and Federal agencies in the interests of listed species and habitat conservation. The existing laws and regulations provide for, and encourage, flexibility and ingenuity in the development of an HCP that will reduce pertinent conflicts under the ESA. The USFWS recommends maximizing efficiency of effort by developing regional HCPs which include incidental take requests from a number of entities through the appropriate local regulatory agency.

The issuance of an incidental take permit by the USFWS is contingent upon the applicant’s development of a USFWS-approved HCP for the listed species affected by the project or action.

Unlisted species may be included in the process and become covered under the permit if they are listed during the term of the permit. A more detailed document, “Habitat Conservation Planning and Incidental Take Permit Processing Handbook” is available from the USFWS’s Sacramento, Albuquerque, and Denver Regional Offices, or any field office, and on the internet at:

http://www.fws.gov/endangered/hcp/hcpbktoc.pdf.

Upon receipt of the application and HCP, the USFWS may issue an incidental take permit if it determines that the following conditions have been met:

1. The taking will be incidental to an otherwise lawful action;

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2. The applicant will, to the maximum extent practicable, minimize and mitigate the impacts of taking;

3. The applicant will ensure that adequate funding will be provided for the conservation plan and changed circumstances;

4. The applicant will provide procedures to deal with unforeseen circumstances;

5. The taking will not appreciably reduce the likelihood of the survival and recovery of the subject species in the wild;

6. The applicant will ensure that other measures required by the USFWS will be provided (e.g., Implementing Agreement); and

7. The plan will be implemented.

The third item above, regarding funding, generally requires development of an implementing agreement. This agreement is a legal document binding all implementing parties to the proposed HCP and their specific responsibilities.

Issuance of an incidental take permit by the USFWS is a Federal action requiring National Environmental Policy Act (NEPA) compliance through preparation of a categorical exclusion, an environmental assessment, or an environmental impact statement. To expedite this process, the USFWS will often delegate the development of information necessary for NEPA documentation to the applicant. Generally, if the incidental take permit will result in a significant net loss of individuals and/or habitat, an environmental impact statement likely will be required. This process often requires 2 years to complete. Conversely, if the permit will result in a net gain or insignificant net loss of individuals and/or habitat, an environmental assessment leading to a finding of no significant impact likely will be sufficient for NEPA compliance. In such a scenario, a permit could be considered for issuance within 1 year.

Preparation times for HCP and NEPA documents vary according to the specific circumstances of each proposed action and are therefore difficult to predict.

When the HCP is approved by the USFWS, the section 7 consultation process is initiated on the proposed issuance of an incidental take permit to the applicant. The USFWS prepares and issues a biological opinion on the proposed Federal action to issue a Federal incidental take permit.

When issued, the permit would authorize incidental take of listed, or future listed species covered under the permit, provided that the applicant institutes appropriate conservation measures for habitat maintenance, enhancement, and protection, coincident with development, which are detailed in the HCP.

The USFWS recognizes that completion of measures proposed in an HCP often takes a considerable amount of time. To provide incentives for all parties to participate in the conservation planning process, assurances exist that the terms and conditions of the incidental take permit will be available for the life of the HCP. Permits of 30 years or more duration may be appropriate to provide assurances to the private sector and non-Federal governments that long-term commitments to funding, land use restrictions, and habitat conservation will be maintained. Funding, land use restrictions, and habitat conservation are usually required to continue in perpetuity. Ensuring adequate funding for management of conserved habitat may require establishment of a trust fund.

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The USFWS will evaluate all requests for incidental take permits under section 10(a)(1)(B) of the ESA. Permit applicants must submit an official application form (Form 3-200) to the appropriate Regional Director of the USFWS. ESA permits are issued in accordance with 50

CFR § 13.21.

2.3. Recommended Format for Biological Evaluations/Biological Assessment The following is provided as a recommended guideline, although information should be presented in the order identified below. As projects vary in complexity, the biological evaluation/biological assessment (BE/BA) may also vary. Development of the BE/BA may not occur in the format order. Rather, as additional information becomes available during the crafting of the BE/BA, the appropriate sections will be modified. Federally funded or permitted exploratory activities that may affect listed species and occur prior to project implementation must also undergo section 7 consultation.

Cover Page: Name of project, location (city, county, etc.), and date.

Table of Contents (all pages must be numbered)

A. Executive Summary

1. Brief summary of project (2 or 3 sentences)

2. In tabular format, identify the species, critical habitat, status, and effects determinations. If “no effect”, include a brief paragraph for each species (these will not be addressed again.) For example:

SPECIES LISTING STATUS DETERMINATION

Mojave desert tortoise Threatened Likely to adversely affect

Mojave desert tortoise, critical habitat Designated Likely to adversely affect

Southwestern willow flycatcher Endangered Not likely to adversely affect

B. Project Description

1. Location: Describe construction boundary: mileposts, State, county, and GPS coordinates ). Include vicinity map (all maps and photographs must be first generation copies, legible and at a scale to be meaningful to the description of the activity).

2. Definition of Action Area: All areas affected directly or indirectly by the Federal action and not merely the immediate area involved in the action. Include all off-site use areas (e.g., access roads, new utility lines, materials sources, waste sites, mitigation sites, December 2009 2-9 stockpiling areas, staging) and locations. A map is helpful, overlaying the entire action area with species and habitat occurrences. Please see Chapter 4 of the USFWS’s section 7 handbook for a complete description and examples of the Action Area (http://www.fws.gov/endangered/consultations/s7hndbk/s7hndbk.htm).

3. Proposed Action:

a. Describe the anticipated steps involved in the action in their expected or logical order of implementation and include diagrams that are useful. The intent of the proposed action section is to describe what will be built, how it will be built, and when. Include description of actions for the entire action area (including interrelated and interdependent actions (see section 2.1.1)). Describe how the project will be accessed and if ongoing operations and maintenance is anticipated to occur following completion of the construction phase of the project. If the contractor proposes an alternative construction method other than that described in the BE/BA, concurrence from the Services is required.

b. Identify Best Management Practices (BMPs), weed-control, habitat restoration, and other measures (i.e., work windows, construction techniques, avoidance) designed to minimize adverse effects in this section.

c. Describe monitoring and reporting plans, as well as conservation bank credits or mitigation sites if applicable.

C. Description of the species and their habitat

Identify each species and each critical habitat. Include the following (repeat for each listed species and listed habitat):

1. Consultation with State wildlife agency and/or Natural Heritage database;

2. Literature reviews;

3. Consultation with experts on species, as necessary;

4. Descriptions of the species and general habitat requirements;

5. Relationship of habitat in the project area to local populations;

6. Map of the project area at an appropriate scale to show vegetation types and important biological features, such as habitat for sensitive species, wetlands or unique plant assemblages;

7. Photographs keyed to locations labeled on the project map;

8. Species information in Action Area including survey protocol used, by whom, etc.

Include names of surveyors and a statement of their qualifications or authorizations to conduct the survey; and

9. Identify designated or proposed critical habitat as separate listed entities. List the primary constituent elements and address the extent to which they are found in the

December 2009 2-10 action area. These can be introduced in table format and elaborated in subsequent text.

D. Environmental Baseline

Describe the past and present effects of human actions on the species or critical habitat in the action area. Describe existing habitat conditions and species trends in detail. Use watershed analysis from the BLM or Forest Service where available, State wildlife agency, or any other available scientific or commercial databases or information. Include information on climate change (e.g., changes to the species’ range, distribution, habitat, etc.).

E. Effects of the Action: Include a discussion of direct and indirect effects relative to the species:

1. Direct Effects - Those effects caused directly by the proposed action (include those based on sideboards). Provide the rationale for each determination;

2. Indirect Effects - Caused by or will result from the proposed action and are later in time, but are still reasonably certain to occur; and

3. Cumulative Effects - Those effects of future State or private activities, not Federal activities, that are reasonably certain to occur within the action area.

F. Determination of Effect

This section must include a clear statement of effect for each species. Example: “We conclude that the Fiber-Optic Line Project may affect, but will not likely adversely affect the Mojave desert tortoise because....”

G. References and Personal Communications Cited

Example of Literature Cited:

Smith, D. M. 2001. Genetic subdivision and speciation in the western North American spotted snake complex, Thamnophis punctatus. Evolution 4:29-35.

Example of Personal Communications (must be documented):

Leslie Brown, Research Biologist

Smith Nature Center 4125 Willowtree Drive Greenville, Oregon 85194 January 8, 2009 telephone communication (or email, site visit, etc.)

December 2009 3‐1

CHAPTER 3. FEDERAL AND STATE AUTHORIZATIONS FOR IMPLEMENTING

DESERT TORTOISE MEASURES REQUIRED UNDER SECTIONS 7 OR 10 OF THE ESA

When a project will be implemented under the purview of a section 7 biological opinion or a section 10 permit for the Mojave population of the desert tortoise, the USFWS requires each desert tortoise survey be conducted by a desert tortoise Authorized Biologist approved by the USFWS. In addition, the appropriate State wildlife agency should be contacted for their permitting requirements. Within the States of Nevada, California, Utah, and Arizona, individuals must obtain the appropriate permits or authorizations from the respective State wildlife agency to be authorized to handle desert tortoises. Authorized individuals must comply with any section 7 biological opinion and Federal and State permits for the project. In California, CDFG must approve the all individuals involved in handling desert tortoises including Monitors and Authorized Biologists. Contact the appropriate agencies for clarification if there are questions about or conflicting conditions between a section 7 biological opinion/section 10 incidental take permit and a State permit.

As a general rule, an Authorized Biologist has a bachelors or graduate degree in biology, ecology, wildlife biology, herpetology, or related discipline with prior field experience using accepted resource agency techniques to survey for desert tortoises. The proposed Authorized Biologist shall submit to the USFWS a completed and signed “Desert Tortoise - Authorized Biologist and Monitor Responsibilities and Qualifications Form” (Qualifications Form) provided below. USFWS is developing a training and certification program for persons who want to be Authorized Biologists. Until this program is in place, Authorized Biologists will be reviewed based on the information submitted on the Qualifications Form.

Submit the Qualifications Form to the appropriate USFWS field office (See AGENCY/ORGANIZATION CONTACT INFORMATION preceding Chapter 1) at least 30 days prior to initiation of activities. If required, submit the Qualifications Form to the Federal action agency with whom the USFWS has consulted under section 7 of the ESA. Submit an updated Qualifications Form for each project even if you have been approved previously, unless you have been instructed otherwise by the USFWS or State wildlife agency.

If you seek approval to attach/remove/insert any devices or equipment to/into desert tortoises, withdraw blood, or conduct other procedures on desert tortoises, a recovery permit (section 10(a)(1)(A) permit) or similar authorization may be required. The application for a recovery permit requires completion of Form 3-200-55, which can be downloaded at http://www.fws.gov/forms/3-200-55.pdf. Submit the completed form to the appropriate USFWS regional office (http://ww.fws.gov/endangered/permits/permitscontact.html).

3.1. Desert Tortoise - Authorized Biologist and Monitor Responsibilities and Qualifications Form

AUTHORIZED BIOLOGIST – Authorized Biologists must keep current with the latest USFWS protocols, guidelines, and regulations pertaining to the desert tortoise. Some of these are available at http://www.fws.gov/ventura/speciesinfo/protocols_guidelines/.

Authorized Biologists will serve as mentors to train Desert Tortoise Monitors and should approve Monitors to conduct specific activities based on the Monitor’s demonstrated skills, knowledge and qualifications. Direct supervision is always required for field and clearance surveys; direct supervision means that the Authorized Biologist has direct voice and sight contact

December 2009 3‐2 with the desert Tortoise Monitor. An Authorized Biologist is responsible for the outcome of all desert tortoise related activities for which the project is approved, including errors committed by Desert Tortoise Monitors.

The Authorized Biologist must have thorough and current knowledge of desert tortoise identification, behavior, natural history, ecology, and physiology, and demonstrate substantial field experience and training to safely and successfully conduct their required duties. Authorized Biologists are approved to monitor project activities within desert tortoise habitat and are responsible for locating desert tortoises and their sign (i.e., conduct field and clearance surveys).

Authorized Biologists must ensure proper implementation of protective measures, and make certain that the effects of the project on the desert tortoise and its habitat are minimized in accordance with a biological opinion or incidental take permit. All incidents of noncompliance in accordance with the biological opinion or permit must be recorded and reported.

To be authorized, the applicant must have the knowledge and experience to conduct any or all of the following, as needed:

• Locate, identify, and report all forms of desert tortoise sign in accordance with approved protocols;

• Handle and temporarily hold desert tortoises;

• Relocate/translocate desert tortoises prior to implementation of projects;

• Excavate burrows to locate desert tortoises or eggs;

• Reconstruct desert tortoise burrows;

• Unearth and relocate desert tortoise eggs;

• Review and approve individual Desert Tortoise Monitors and their activities based on qualifications of the Monitors;

• Directly supervise Desert Tortoise Monitors during clearance surveys and train

Monitors in all aspects of protecting desert tortoises during implementation of projects;

• Be familiar with the project biological assessment and biological opinion or incidental take permit (copy in hand);

• Ensure proper implementation of protective measures;

• Record and report incidents of noncompliance in accordance with a biological opinion or permit; and

• Halt project activities per provisions of the biological opinion or permit.

DESERT TORTOISE MONITOR – Desert Tortoise Monitors will be approved by the Authorized Biologist(s) or USFWS (if an Authorized Biologist is not required) for a project.

Desert Tortoise Monitors will assist the Authorized Biologist on project activities within desert tortoise habitat, ensure proper implementation of protective measures, and record and report desert tortoise and sign observations in accordance with approved protocol. They will report incidents of noncompliance in accordance with a biological opinion or permit, move desert tortoises from harm’s way when desert tortoises enter project sites and place these animals in designated safe areas or maintain the desert tortoises in their immediate possession until an Authorized Biologist assumes care of the animal. Monitors assist Authorized Biologists during surveys and serve as apprentices to acquire experience. Monitors may not conduct field or clearance surveys or other specialized duties of the Authorized Biologist unless directly supervised by an Authorized Biologist; “directly supervised” means the Authorized Biologist has direct voice and sight contact with the Monitor.

December 2009 3‐3

3.2. DESERT TORTOISE AUTHORIZED BIOLOGIST QUALIFICATIONS FORM

This form should be used to provide your qualifications to agency officials if you wish to undertake the duties of an authorized biologist with regard to desert tortoises during construction or other projects authorized under Sections 7 (Biological Opinions) or 10(a)(1)(B) (i.e. Habitat Conservation Plans) of the Endangered Species Act.

(If you seek approval to attach/remove/insert any devices or equipment to/into desert tortoises, withdraw blood, or conduct other procedures on desert tortoises, a recovery permit or similar authorization may be required. Application for a recovery permit requires completion of Form 3- 200-55, which can be downloaded at http://www.fws.gov/forms/3-200-55.pdf.)

1. Contact Information:

Name

Address

City, State, Zip Code

Phone Number(s)

Email Address

2. Date:

3. Areas in which authorization is requested (check all that apply):

□ San Bernardino, Kern, Inyo and Los Angeles Counties, California (Ventura office)

□ Riverside, San Diego, and Imperial Counties, California (Carlsbad office)

□ Nevada □ Utah □ Arizona

4. Please provide information on the project:

December 2009 3‐4

USFWS Biological Opinion or HCP No.

When Applicable

Date:

Project Name

Federal Agency

(If Applicable)

Proponent or Contractor

5. If you hold, or have held, any relevant state or federal wildlife permits provide the following:

Species

Dates

State (specify) or

Federal Permit Number

Authorized Activities

6. Education: Provide up to three schools, listing most recent first:

December 2009 3‐5

Institution attended

Major/Minor

Degree received

7. Desert Tortoise Training.

Name/Type of Training

(From/To)

Location

Instructor/Sponsor

1. Classes

2. Field Training

3. Translocation

4.

8. Experience – Include only those positions relevant to the requested work with desert tortoises. Distinguish between wild Mojave desert tortoise and other experience. Include only your experience, not information for the project you worked on (e.g., if 100 tortoises were handled on a project and you handled 5 of those tortoises, include only those 5. List most recent experience first. Handling a Mojave desert tortoise must be authorized by a Biological Opinion or other permit and reported to the USFWS. Information provided in this section will be used by the USFWS to track the numbers of tortoises affected by previous projects (baseline).

Be sure to include a project supervisor or other contact that can verify your skills and experience in relation to your job performance. Attach additional sheets as necessary.

Please use numbers in each column; do not use “X’s” to indicate participation in the activity. If your experience is limited to less than three desert tortoise positions, please include additional job experience and references in the section below.

December 2009 3‐6

Experience by project and activity:

Project Name:

Job Title:

Dates of Employment:

Supervisor / Project Contact Name:

Phone:

Email Address:

Conduct

Clearance

Surveys

(Hrs/Days)

Excavate

DT

burrows

(No.)

Locate DT

No.

< 100mm

≥ 100mm

Handled for

Relocation

DTs (No.)

Excavate, and relocate

DT nests

(No.)

1.

2.

3.

5.

6.

7.

December 2009 3‐7

Experience by project and activity (continued): Each project number should correspond with the project listed on the previous page

Project Name

(Number should correspond to previous page)

Construct

Artificial

Burrows

(No.)

Monitor project equipment and activities (Hrs/Days)

Oversee project compliance (Hrs/Days)

Supervise DT field staff

(Hrs/Days) and No. staff supervised

DT fence

Installation and inspection

(Hrs/Days)

Present DT

Awareness

Training

(No.)

1.

2.

3.

5.

6.

7.

December 2009 3‐8

Summary of experience:

Total time spent for all desert tortoise-related field activities (referenced above):

Specify total number of hours:

OR total number of 8-hour days: __________________

Total number of miles/kilometers walked conducting survey transects:

Total number of wild, free-ranging desert tortoises you personally handled:

<100 mm: _______ >100 mm: _______

Additional supervisory experience other than…