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Mitigation Measure 4.9.1: The project applicant shall ensure that any loss of waters of the U.S., ifift,, shall be compensated for by the preservation or creation of similar habitat at a ratio no less than 1:1,prior to mining that phase. This preservation and/or creation of wetlands may occur either on-site, at an off-site location, or at an ACOE approved mitigation bank. To ensure mitigation of habitat similar to that impacted by Mining Plan Option 2, if this mitigation occurs off-site and not at a mitigation bank,the mitigation shall be located on alluvial fans or terraces in either western-San Joaquin or Stanislaus Counties. Permits secured for the project may require higher ratios. (Draft EIR,p. 4.9-13 to 4.9-14.) Findings: Based on the whole record, this Commission finds that with implementation of Mitigation Measure 4.9.1, in the unlikely event that there are any, impacts to waters of the U.S., they would be reduced to a less than significant level. (Draft EIR,p. 4.9-14.) Impact 4.9.2 Project activities could result in adverse impacts to special status-species covered under the SJMSCP. (Draft EIR,p. 4.9-14.) Significance Before Mitigation: Potentially Significant. Facts: Special status species covered by the SJMSCP may be adversely affected by project activities. See Draft EIR, pp. 4.9-14 to 4.9-18. Mitigation Measures Mitigation Measure 4.9.2a: Conditions on the project site currently provide habitat for San Joaquin kit fox. Site conditions will change over the 26- to 60-year life of the project; therefore, the following mitigation measures shall be implemented prior to implementation of any Phase of mining. (1) Comply with the SJMSCP. For Phases complying with the SJMSCP, no further mitigation is required, or (at applicant's option) (II) For Project Phases not complying with the SJMSCP, the applicant shall perform an early evaluation of the Phase according to USFWS protocol for San Joaquin kit fox surveys in the northern range(USFWS, 1999a), as updated. This protocol includes consultation with USFWS. If the USFWS concludes that the Phase would not affect San Joaquin kit fox habitat,no further mitigation(i.e., measures III and IV below) would be required for the Phase. If the USFWS determines that the Phase may affect San Joaquin kit fox habitat, it may require the applicant to conduct protocol-level surveys for San Joaquin kit fox and to implement avoidance or minimization measures in addition to the mitigation required here. (III)For Project Phases not complying with the SJMSCP,the applicant shall conduct pre- construction surveys per Standardized Recommendations for the Protection of the San Joaquin Kt Fox Prior to or During Ground Disturbance (USFWS 1999b), as updated. Potential dens (including man-made structures) and known dens shall be protected by minimum buffers of 50 22