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Draft Environmental ImP P act Report Page IV.H-16
<br /> Forward Inc. Landfill Expansion Project
<br /> Plan. Take authority for federally listed species covered under the SJMSCP would conform to
<br /> the FESA.
<br /> Federally listed species for which take authority may be required and provided by participation
<br /> in the SJMSCP include Swainson's hawk and giant garter snake.
<br /> Bald and Golden Eagle Protection Act. The Bald and Golden Eagle Protection Act, as amended
<br /> (BGEPA)27, provides protection for the bald eagle (Haliaeetus leucocephalus) and golden eagle
<br /> (Aquila chrysaetos)by prohibiting the taking, possession, and commerce of such birds,their
<br /> nests, eggs, or feathers unless expressly authorized by permit pursuant to federal regulations.
<br /> The golden eagle is the only species subject to the provisions of the BGEPA that is covered
<br /> under the SJMSCP. However,because the SJMSCP is based on the more stringent, federal
<br /> standard for"take" pursuant to the FESA, which includes modification of habitat, Incidental
<br /> Take Permits for the golden eagle are included in the SJMSCP to allow for the conversion of
<br /> habitat for the golden eagle with appropriate creation of compensatory habitat for this species.
<br /> To fulfill the requirements of the BGEPA,however,the Incidental Take Minimization Measures
<br /> of the SJMSCP for the golden eagle have been designed to avoid "take", as defined by the
<br /> BGEPA.
<br /> While there is no potential for the occurrence of bald eagle on site, suitable foraging habitat for
<br /> golden eagle is present within the study area, and suitable nesting and foraging habitat for
<br /> golden eagle is present on surrounding parcels.
<br /> Migratory Bird Treaty Act. The Migratory Bird Treaty Act of 1918, as amended (MBTA)"
<br /> includes provisions for the protection of migratory birds, including basic prohibitions against
<br /> any taking not authorized by federal regulation. The MBTA makes it unlawful, unless
<br /> expressly authorized by permit pursuant to federal regulations, to pursue, hunt,take, capture,
<br /> kill, attempt to take, capture or kill,offer for sale, sell, offer to purchase, purchase, deliver for
<br /> shipment, ship, cause to be shipped, deliver for transportation, transport, cause to be
<br /> transported, carry, or cause to be carried by any means whatever,receive for shipment,
<br /> transportation or carriage, or export at any time,or in any manner,any migratory bird, or any
<br /> part,nest, or egg of any such bird. The administering agency for the above authority is the
<br /> USFWS. Most bird species occurring within the project region fall under the protection of the
<br /> MBTA 29. On December 8,2004 congress adopted the Migratory Bird Treaty Reform Act
<br /> (MBTRA)30' which excludes from protection all migratory birds that are considered to be non-
<br /> native or that have been human introduced to the U.S.or its territories. It defines a native
<br /> migratory bird as a species present within the U.S. and its territories as a result of natural
<br /> biological or ecological processes.31 As discussed in Section 8.7, Impacts and Mitigation
<br /> Measures, project implementation would conflict with the MBTA.
<br /> 2716 U.S.C.668-668c
<br /> 2816 USC§703-711;50 CFR Subchapter B
<br /> 29 With the exception of those species that belong to the families not listed in any of the four treaties,
<br /> such as wrentit (Chamaea fasciata), European starling (Sturnus vulgaris), California quail (Callipepla
<br /> californica), ring—necked Pheasant (Phasianus colchicus) and chukar (Alectoris chukar), among others less
<br /> common in California.
<br /> "Division E,Title I,Section 143 of the Consolidated Appropriations Act,2005,PL 108-447,
<br /> 31 The MBTRA excludes two additional species commonly observed in the U.S., the rock pigeon(Columba
<br /> livia)and domestic goose(Anser anser 'domesticus').
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