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Biological Resources, MONK&ASSOCIATES, Impacts and Mitigations Tracy Facility Expansion Site Federal act. Since FESA could be amended at any time, in which case AB21 would no longer be effective,we are recommending that project applicants who are applying for authorization for "incidental take" of a Federal and State listed species, enter into a Section 2081 agreement with CDFG in addition to the Federal permit so that the project is covered under both FESA and CESA in case AB21 is repealed during the life of the project. State and Federal incidental take pen-nits are discretionary and are typically only authorized if applicants are able to demonstrate that impacts to the listed species in question are unavoidable, and can be mitigated to an extent that the reviewing agency can conclude that the proposed impacts would not jeopardize the continued existence of the listed species under review. if there would be impacts to a listed species,mitigation that includes habitat Typically, p p g Yp Y� preservation, and creation of habitat is necessary to demonstrate that projects would avoidance,p n, az'Y e continued existence of a species. In addition,management endowment fees are not threaten the sp g usually collected as part of the agreement for the incidental take permit(s). The endowment is used to manage any lands set-aside to protect listed species, and for biological mitigation monitoring over(typically) a five-year period. 10.3 Migratory Bird Treaty Act The Migratory Bird Treaty Act of 1918 makes it unlawful to "take"(kill,harm, harass, shoot, etc.)any migratory bird listed in 50 CFR 10, including their nests, eggs, or young. Migratory birds include geese, ducks, shorebirds,raptors, songbirds,wading birds, seabirds, and passerine birds(such as warblers,thrashers; swallows, etc.) 10.4 California Fish and Game Code Sections 3503,3503.5,3800 These sections of the Fish and Game Code prohibit the"take,possession, or destruction of birds, their nests or eggs." Disturbance that causes nest abandonment and/or loss of reproductive effort (frilling or abandonment of eggs or young)is considered a"take." Such a take would also violate Federal law protecting migratory birds(Migratory Bird Treaty Act). 10.5 California Environmental Quality Act(CEQA) -Treatment of Special-Status Plant and Animal Species Section 15380 of CEQA defines "endangered"species as those whose survival and reproduction in the wild are in immediate jeopardy and"rare" species as those who are in such low numbers that they could become endangered if their environment worsens. The CEQA Guidelines also state that a project will normally have a significant effect on the environment if it will "substantially affect a rare or endangered species of animal or plant or the habitat of the species." The significance of impacts to a species under CEQA, therefore,must be based on analyzing actual rarity and threat of extinction despite legal status or lack thereof. 13