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4 Environmental Analysis
<br /> 4.4 Biological Resources
<br /> 4.4.2 Regulatory Setting
<br /> 4.4.2.1 Federal Endangered Species Act
<br /> The federal ESA of 1973, as amended (Title 16, United States Code [U.S.C.] 1531, et seq.)
<br /> designates and provides for protection of federally listed threatened and endangered plant and
<br /> animal species and their Critical Habitat. The U.S. Fish and Wildlife Service (USFWS) and
<br /> National Oceanic and Atmospheric Administration (NOAH) Fisheries share responsibility for
<br /> administration of the ESA. These responsibilities include listing and delisting species, designating
<br /> critical habitat, and formulating recovery plans. The USFWS has primary responsibility for
<br /> terrestrial and freshwater organisms, while the responsibilities of NOAA Fisheries are mainly
<br /> marine wildlife.
<br /> The ESA is divided into 18 sections that are intended to work together to prevent species from
<br /> going extinct by helping to stabilize populations, reducing the threats to their survival, and helping
<br /> species recover to the point that they no longer require federal protection. Once a species is listed,
<br /> Section 9 of the Endangered Species Act makes it unlawful for any person, including private and
<br /> public entities, to "take" species listed as endangered without a permit issued under Section 10
<br /> or an incidental take statement issued under Section 7. "Incidental take" is defined as take that is
<br /> incidental to, and not the purpose of, the carrying out of an otherwise lawful activity.
<br /> 4.4.2.2 Federal Migratory Bird Treaty Act
<br /> The federal MBTA of 1918 (Title 16, U.S.C. §§703-712), as amended, implements various
<br /> treaties and conventions between the United States and Canada, Japan, Mexico, and the former
<br /> Soviet Union for the protection of migratory birds. The MBTA makes it unlawful to pursue, hunt,
<br /> take, capture, kill, possess, sell, purchase, barter, import, export, or transport any migratory bird,
<br /> or any part, nest, or egg or any such bird, unless authorized under a permit issued by the
<br /> Secretary of the Interior. Some regulatory exceptions apply. "Take" is defined in regulations
<br /> implementing the MBTA as"to pursue, hunt, shoot,wound, kill, trap, capture, or collect, or attempt
<br /> to carry out these activities." The MBTA prohibits the collection and destruction of a migratory
<br /> bird, its nest, and birds or eggs contained in the nest. USFWS' Migratory Bird Permit
<br /> Memorandum (MBPM-2) dated April 15, 2003, clarifies that destruction of most unoccupied bird
<br /> nests is permissible under the MBTA; exceptions include nests of federally listed threatened or
<br /> endangered migratory birds, bald eagles (Haliaeetus leucocephalus), and golden eagles. Take
<br /> under the MBTA does not include habitat destruction or alteration, if there is not a direct taking of
<br /> birds, nests, eggs, or parts thereof. The USFWS has statutory authority and responsibility for
<br /> enforcing the MBTA.
<br /> 4.4.2.3 California Endangered Species Act (Fish and Game Code §2050 et seq.)
<br /> CESA was enacted in 1984 to parallel the federal ESA and allows the California Fish and Game
<br /> Commission to designate species, including plants, as "threatened" or"endangered." The CESA
<br /> states that all native species of fishes, amphibians, reptiles, birds, mammals, and plants, and their
<br /> habitats, threatened with extinction and those experiencing a significant decline which, if not
<br /> halted, would lead to a threatened or endangered designation, will be protected or preserved. In
<br /> May 2022, a California Court of Appeal ruled that insects (invertebrates) can be protected under
<br /> the California Endangered Species Act (see Almond Alliance of California v. California
<br /> Department of Fish and Wildlife, No. C093542 [3rd District, May 31, 2022]).
<br /> Griffith Energy Storage Project 4.4-21 Tetra Tech/SCH 2022120675
<br /> Draft Environmental Impact Report August 2023
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