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4. ENVIRONMENTAL ANALYSIS 4.9 BIOLOGICAL RESOURCES mark that are regulated by the Clean Water Act but are not wetlands (33 CFR 328.4). Examples of other waters of the U.S.include intrastate lakes,rivers, streams(including intermittent streams),mud flats, sand flats, and natural ponds,the use;degradation, or destruction of which could affect interstate or foreign commerce including any such waters I. Waters of the United States do not include prior converted cropland. Regulated wetlands and other waters of the United States are subject to jurisdiction under Section 404 of the Clean Water Act. Wet areas that are not regulated would include stock watering ponds and agricultural irrigation ditches created in upland areas. U.S. Fish and Wildlife Service The USFWS administers the Migratory Bird Treaty Act(16 USC Section 703-711),the Bald and r, Golden Eagle Protection Act(16 USC Section 668), and the FESA(FESA, 16 USC Section 153 et seq). Projects that would result in adverse affects on any federally listed threatened or endangered species are required to consult with and mitigate through consultation with the USFWS. This consultation can be pursuant to either Section 7 or Section 10 of the ESA, depending on the involvement by the federal government. California Department of Fish and Game The CDFG administers a number of laws and programs designed to protect fish and wildlife M resources. Principal of these is the CESA of 1984(CESA-Fish and Game Code Section 2050 et seq), which regulates the listing and"take"of endangered(CE)and threatened species(CT). A "take" of such a species may be permitted by CDFG through issuance of permits pursuant to Fish and Game Code section 2081. Prior to enactment of the CESA, the designation of"Fully Protected" was used by CDFG to identify species that had been given special protection by the California Legislature by a series of statutes in the California Fish and Game Code. (See§§ 3503.5, 3505, 3511, 3513,4700,4800, 5050, 5515.) Many fully protected species have also been listed as threatened or endangered species under the more recent endangered species laws and regulations;however,the original statutes have not been repealed, and the legal protection they give the species identified within them remains in place. Fully Protected species may not be taken or possessed at any time;and no licenses or petmits may be issued for their take except for collecting these species for necessary scientific research and relocation of the bird species for the protection of livestock. "Fully protected species"actually enjoy a greater level of legal protection than"listed"species because ` endangered or threatened species can be"taken"for development purposes with the issuance of a I Since the SWANCC decision,waters covered solely by this definition by virtue of their use as habitat by migratory birds are no longer considered"waters of the United States." The Supreme Court's opinion did not specifically address what other connections with interstate commerce might support the assertion of CWA jurisdiction over "nomavigable,isolated,intrastate waters"under this definition,and the ACOE is recommending case by case consideration. A factor that may be relevant to this consideration includes,but is not limited to,the following: Jurisdiction of isolated,intrastate,and nomavigable waters may be possible if their use,degradation,or destruction could affect other"waters of the United States,"thus establishing a significant nexus between the water in question and other"waters of the United States"(ACOE,undated memorandum). r RMC Pacific Vernalis Quany Mining and Reclamation Pmimt 4.9-7 PSA/203015 Administrative Dmft EIR Mash 2004