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Biological Resources, MONK &ASSOCIATES Impacts and Mitigations Tracy Facility Expansion Site CLAPS List 1B. California Native Plant Society classification. Plants rare,threatened,or endangered in California and elsewhere. Species with this listing meet the definitions of Section 1901,Chapter 10 of the CDFG Code and are eligible for State listing. Also, likely to meet biological criteria to be classified as rare under CEQA(Section 15380(b)). 10. EXISTING PROTECTION FOR SPECIAL STATUS SPECIES Below,we present summaries of the most important sections of the Federal and State Endangered Species Acts,the Federal Migratory Bird Treaty Act, and the sections of the California Fish and Game Codes and CEQA that pertain to biological resources. 10.1 Federal Endangered Species Act The primary focus of the Federal Endangered Species Act (FESA) of 1973 is that all Federal agencies must seek.to conserve threatened and endangered species through their actions. FESA has been amended several times in the past to cure perceived and real shortcomings. FESA contains three key sections.' Section 4 (16 USCA§1533) outlines the procedure for listing endangered plants and wildli#'e. Section 7 (§1536) imposes limits on the actions of Federal agencies which might impact listed species. Section-9 (§1538)prohibits the "taking" of a listed species by anyone, including private individuals;and State and local agencies. The requirements are enforced by the National Marine Fisheries Service (NMFS)in the case of salt water fish and other marine organisms, and by the USFWS in all other cases. Below, Sections 7 and 9 of FESA are discussed since they are the two sections most relevant to the proposed project. Section 9 of FESA as amended,prohibits the "take"-of any fish or wildlife species listed under FESA as endangered. Under Federal regulation,"take" of fish or wildlife species listed as threatened is also prohibited unless otherwise specifically authorized by regulation. "Take," as defined by FESA,means "to harass,harm,pursue,hunt, shoot,wound,kill,trap, capture, or collect, or to attempt to engage in any such conduct." Recent court cases have found "harm" includes not only the direct taking of a species itself,but the destruction or modification of the species'habitat resulting in the potential injury of the species. As such, "harm" is further defined to mean"an act which actually kills or injures wildlife; such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering" (50 CFR 17.3). Section 9 applies not only to Federal agencies but to any local or State agency, and to any individual: If"take" of a listed species is necessary to complete an otherwise lawful activity, this triggers the need for consultation-under Section 7 of FESA(for Federal agencies), or requires preparation of a Habitat Conservation Plan(HCP)under Section 10 of FESA(for State and local agencies, or individuals). Under Section 7 of FESA, all Federal agencies must, in consultation with USFWS, ensure that their actions do not jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. Federal actions include permitting, funding, and entitlements for both Federal projects, as well as private projects facilitated by Federal actions (e.g., a private landowner applying to the Corps for a permit). For example, if a federally listed endangered species was present in "waters of the United States" on a project site,prior to authorizing impacts 10