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4.2 – Biological Resources
<br />Draft Environmental Impact Report February 2021
<br />14800 W. Schulte Road Logistics Center 4.2-5
<br />USFWS or NMFS concludes that the action is not likely to adversely affect a listed species, the action may be
<br />conducted without further review under FESA. Otherwise, USFWS or NMFS must prepare a written Biological Opinion
<br />describing how the agency’s action will affect the listed species and its critical habitat.
<br />Migratory Bird Treaty Act
<br />The Migratory Bird Treaty Act prohibits the intentional take of any migratory bird or any part, nest, or eggs of any
<br />such bird. Under the Migratory Bird Treaty Act, “take” is defined as pursuing, hunting, shooting, capturing, collecting,
<br />or killing, or attempting to do so (16 USC 703 et seq.). In December 2017, Department of the Interior Principal
<br />Deputy Solicitor Jorjani issued a memorandum (M-37050) that interprets the Migratory Bird Treaty Act’s “take”
<br />prohibition to apply only to affirmative actions that have as their purpose the taking or killing of m igratory birds,
<br />their nests, or their eggs; unintentional or accidental take is not prohibited (M-37050). However, in August 2020, a
<br />federal court upheld the long-standing interpretation of the Migratory Bird Treaty Act, such that it covers intentional
<br />and unintentional take. Additionally, Executive Order 13186, Responsibilities of Federal Agencies to Protect
<br />Migratory Birds, requires that any project with federal involvement address impacts of federal actions on migratory
<br />birds with the purpose of promoting conservation of migratory bird populations (66 FR 3853–3856). Executive
<br />Order 13186 requires federal agencies to work with USFWS to develop a memorandum of understanding. USFWS
<br />reviews actions that might affect migratory bird species.
<br />Clean Water Act
<br />Pursuant to Section 404 of the Clean Water Act, the U.S. Army Corps of Engineers regulates the discharge of
<br />dredged and/or fill material into “waters of the United States.” The term “wetlands” (a subset of waters) is defined
<br />as “those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient
<br />to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life
<br />in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas” (33 CFR
<br />328.3[b]). In the absence of wetlands, the limits of U.S. Army Corps of Engineers jurisdiction in non-tidal waters,
<br />such as intermittent streams, extend to the “ordinary high water mark” (33 CFR 328.3[e]).
<br />State
<br />California Endangered Species Act
<br />CDFW administers CESA (CFGC Section 2050 et seq.), which prohibits the take of plant and animal species
<br />designated by the California Fish and Game Commission as endangered, candidate, or threatened in California.
<br />Under CESA Section 86, take is defined as “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch,
<br />capture, or kill.” CESA addresses the take of threatened, endangered, or candidate species by stating the following
<br />(CFGC Sections 2080–2085):
<br />No person shall import into this state, export out of this state, or take, possess, purchase, or
<br />sell within this state, any species, or any part or product thereof, that the Commission
<br />determines to be an endangered species or a threatene d species, or attempt any of those acts,
<br />except as otherwise provided in this chapter, the Native Plant Protection Act (California Fish
<br />and Game Code Sections 1900 –1913), or the California Desert Native Plants Act (Food and
<br />Agricultural Code Section 80001).
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