HomeMy WebLinkAbout09.16.2024 Board Correspondence - FW_ Delegated Order issued in FERC P-2107-045From:Clerk of the Board
To:Bennett, Robin; Clerk of the Board; Connelly, Bill; Cook, Holly; Cook, Robin; Durfee, Peter; Jessee, Meegan;
Kimmelshue, Tod; Kitts, Melissa; Lee, Lewis; Pickett, Andy; Ritter, Tami; Stephens, Brad J.; Sweeney, Kathleen;
Teeter, Doug; Zepeda, Elizabeth; Pack, Joshua
Cc:Nevers, Dawn
Subject:Board Correspondence - FW: Delegated Order issued in FERC P-2107-045
Date:Tuesday, September 17, 2024 10:57:34 AM
Please see Board Correspondence -
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Subject: Delegated Order issued in FERC P-2107-045
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On 9/16/2024, the Federal Energy Regulatory Commission (FERC), Washington D.C., issued this document:
Docket(s): P-2107-045
Lead Applicant: Pacific Gas and Electric Company
Filing Type: Delegated Order
Description: Order Amending License to Incorporate Biological Opinion Terms and Conditions re Pacific Gas and
Electric Company's Poe Hydroelectric Project under P-2107.
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188 FERC ¶ 62,138
UNITED STATES OF AMERICA
FEDERAL ENERGY REGULATORY COMMISSION
Pacific Gas and Electric Company Project No.2107-045
ORDER AMENDING LICENSE TO INCORPORATE
BIOLOGICAL OPINION TERMS AND CONDITIONS
(Issued September 16, 2024)
1.On May 1, 2024, Pacific Gas and Electric Company (PG&E or licensee)filed a
draft biological assessment (BA) under section 7 of the Endangered Species Act (ESA)
addressing the potential effects to proposed threatened and endangered species that could
occur as a result of the licensee’s proposed construction of recreation improvements to
the Sandy Beach Recreation site at the Poe Hydroelectric Project No. 2107.1 The project
is located on the North Fork Feather River, upstream of Lake Oroville, near the Town of
Pulga, in Butte County, California. The project occupies, in part, federal lands within the
Plumas National Forest, administered by the U.S. Forest Service (Forest Service).
I.Background
2.Pursuant to Article 404 of the project license, the licensee filed a Recreation
Management Plan (plan), which was approved in an order issued February 28, 2022.2
The plan requires, in part,the licensee to construct improvements at the Sandy Beach
recreation site, including a gravel parking area with a paved accessible parking space,
paved access from Highway 70 to the parking area, provide a connection from the access
road to Highway 70 entrance, an accessible double vault toilet, a 4-foot wide gravel trail
to the beach area with rock slope protection, bear resistant trash receptacle, and
information signage.
3.On May 1, 2024, the licensee filed a draft Biological Assessment (BA)evaluating
the effects of the Sandy Beach recreational improvement project construction on species
listed as species listed as threatened, endangered, or proposed as threatened or
endangered under the ESA. The BA evaluated effects on the proposed threatened
California spotted owl (Six occidentalis occidentalis), northwestern pond turtle
1 Order Issuing New License (165 FERC ¶ 62,172), issued December 17, 2018.
2 Order Modifying and Approving Recreation Plan Under Article 404
(178 FERC ¶62,116).
Document Accession #: 20240916-3001 Filed Date: 09/16/2024
Project No. 2107-045 -2 -
(Actinemys marmorata), western spadefoot (Spea hammondii); and threatened California
red-legged frog (Rana draytonii) and foothill yellow-legged frog (FYLF) (Rana boylii).
The draft BA noted that while the bald eagle (Haliaeetus leucocephalus) is delisted from
the federal ESA, it is protected under the Bald and Golden Eagle Protection Act.
4. The draft BA stated for the California spotted owl, northwestern pond turtle,
western spadefoot, and California red-legged frog, the work area either lacks suitable
habitat and/or no record of the species has been observed in the search area surrounding
the Sandy Beach recreation site and therefore the proposed work would have no affect
these species. One observation of bald eagle passing over the search area was noted. No
bald eagle nests have been observed in the Poe Reach since 2013, and while bald eagles
may forage near the work area, and with no documented nesting activity near the action
area, any impact to bald eagles would be temporally limited and minor. The draft BA
primarily evaluated the effects of the proposed work on FYLF. The Action Area3 for the
proposed work includes the footprint of the recreation site, the construction staging area,
and a 100-foot buffer around the footprint and staging areas.
II.Consultation under the Endangered Species Act
5.Commission staff initiated formal consultation under section 7 of the ESA by
adopting the licensee’s draft BA as our BA and forwarding it the FWS on July 23, 2024.
Commission staff determined in the BA that the Action Area does not provide suitable
breeding or foraging habitat for the FYLF, it is close to known occupied habitat and is
within the overland dispersal range of the species. The primary potential direct effect of
the proposed work would be the loss of a few (no more than five) dispersing individuals
through construction related effects (crushing, entrapment, etc.). Through the
implementation of the licensee’s proposed 30 conservation measures, the impact would
be limited to the relocation of any individuals found on site to areas of suitable habitat
off-site by qualified biologists. Indirect impacts could occur through the release of
sediment or toxic substances that might travel into suitable habitat. The North Fork
Feather River is approximately 50-100 fee from the nearest edge of the proposed work
area, and Mill Creek is approximately 100 feet from the work. With the implementation
of the conservation measures combined with the distance from suitable habitat make
these impacts less likely to occur.
6.On August 28, 2024, the FWS filed a BO addressing the licensee’s construction of
recreation improvements at the Sandy Beach recreation site. The BO covered the
incidental take of the FYLF from construction activities. At the time the BO was issued,
the FYLF was the only known federally listed species that was likely to be impacted by
3 The Action Area is defined by 50 C.F.R. 402.02 as “all areas to be affected
directly or indirectly by the federal action and not merely the immediate area involved in
the action.”
Document Accession #: 20240916-3001 Filed Date: 09/16/2024
Project No. 2107-045 -3 -
construction activities in the action area. As such, the terms and condition contained in
the BO were specific to this species. Pursuant to the BO, additional formal consultation
is required if new information reveals effects of the action that may affect listed species
or critical habitat in a manner or to an extent not considered in the BO.
7.In the BO, the FWS state that the proposed recreation improvements at the Sandy
Beach recreation site would not likely jeopardize the continued existing of the FYLF.
FWS reached this conclusion because the work-related effects to the species, when added
to the environmental baseline and analyzed in consideration of all potential cumulative
effects, will not rise to the level of precluding recovery or reducing the likelihood of
survival of the species based upon: (1) the licensee’s proposed conservation measures
that would minimize effects to the FYLF, (2) the licensee’s close coordination with the
FWS in 2023 and 2024 to ensure construction activities would be conducted in the least
harmful manner practicable, (3) construction activities would not occur within suitable
habitat for the FYLF, and (4) the short-term nature of the construction activities
eliminates any long-term impacts to the FYLF.
8.The FWS included in the BO and Incidental Take Statement with reasonable and
prudent measures, two terms and conditions, and one monitoring and reporting
requirement in order to minimize the take of FYLF anticipated to result from the
construction of recreation improvements. The terms and conditions and monitoring and
reporting requirements are nondiscretionary measures that must be followed to comply
with the incidental take provisions under the ESA. In summary, the two terms and
conditions require the licensee to: (1) fully implement and adhere to all conservation
measures and (2) require that all personnel associated with this work are made aware of
the conservation measures and the responsibility to implement them fully. The FWS
monitoring and reporting requirement specifies that for those components of the work
that require the capture and relocation of any listed species, the licensee must contact the
Bay-Delta Fish and Wildlife Office within three working days to report the action.
Injured listed species must be cared for by a licensed veterinarian or other qualified
person and dead individuals must be preserved as directed until instructions are received
from the FWS regarding disposition of the specimen. The terms and conditions and
monitoring and reporting requirements are attached to this order as Appendix A.
9.The FWS also included one conservation recommendation in its BO.
Conservation recommendations are discretionary activities to minimize or avoid effects
to listed species or critical habitat, to help implement recovery plans, or to develop
information. The FWS recommends that the licensee continues to work closely with the
FWS to determine the best applicable management for the FYLF within the project area,
including ramping rates and other measures that reduce impacts to various life stages of
the species from implementation of the Poe Hydroelectric Project. Commission staff
agrees that this recommendation would provide benefits for future conservation efforts
Document Accession #: 20240916-3001 Filed Date: 09/16/2024
Project No. 2107-045 -4 -
concerning the FYLF, and therefore we have added the requirement to Appendix A to
require the licensee to implement the conservation recommendation.
III.Conclusion
10.Construction activities associated with recreation improvements required as part of
the approved recreation plan for the Sandy Beach recreation site are likely to adversely
affect the FYLF but are not likely to jeopardize the continued existence of this species.
11.To reduce or avoid impacts to the FYLF, the FWS stipulated in its BO Incidental
Take Statement terms and conditions for these proposed construction activities. With
implementation of the terms and conditions,and reporting and monitoring requirements,
the FYLF should be adequately protected. Therefore, the terms and conditions, attached
to this order as Appendix A, should be made part of the project license. To keep the
Commission informed regarding the effects of construction activities on this species, the
licensee should be required to file copies of reports required by the terms and conditions
of the BO.
The Director orders:
(A)Pacific Gas and Electric Company’s license for the Poe Hydroelectric
Project No. 2107 is amended to incorporate the terms and conditions of the
August 28,2024 Biological Opinion submitted by the U.S. Fish and Wildlife Service
under section 7 of the Endangered Species Act. Those terms and conditions in the
Biological Opinion are set forth in Appendix A to this order.
(B)Pacific Gas and Electric Company must file copies of any reports or
notifications for which it is responsible, or to which it contributes, under the terms and
conditions of the U.S. Fish and Wildlife Service’s August 28, 2024 Biological Opinion.
The licensee must allow the U.S. Fish and Wildlife Service a minimum of 30 days to
comment and make recommendations before filing the reports with the Commission. For
any agency recommendation that Pacific Gas and Electric Company does not incorporate
into the reports filed with the Commission, it must provide its reasons using project-
specific information.
Document Accession #: 20240916-3001 Filed Date: 09/16/2024
Project No. 2107-045 -5 -
(C)This order constitutes final agency action. Any party may file a request for
rehearing of this order within 30 days from the date of its issuance, as provided in section
313(a) of the Federal Power Act, 16 U.S.C. § 825l, and the Commission’s regulations at
18 C.F.R. § 385.713 (2023). The filing of a request for rehearing does not operate as a
stay of the effective date of this order, or of any other date specified in this order. The
licensee’s failure to file a request for rehearing shall constitute acceptance of this order.
Alicia Jackson
Chief, Land Resources Branch
Division of Hydropower Administration
and Compliance
Document Accession #: 20240916-3001 Filed Date: 09/16/2024
Project No. 2107-045 -6 -
APPENDIX A
Reasonable and Prudent Measures and Terms and Conditions included in the
U.S.Fish and Wildlife Services Biological Opinion for the
Poe Hydroelectric Project No.2107
Filed August 28, 2024
REASONABLE AND PRUDENT MEASURES
The Service believes the following reasonable and prudent measure is necessary and
appropriate to minimize incidental take of the Foothill Yellow-legged frog (frog):
1. All conservation measures, as described in the Project Description section of this
biological opinion, shall be fully implemented and adhered to in order to minimize
adverse effects to the frog. Further, this reasonable and prudent measure shall be
supplemented by the terms and conditions below.
TERMS AND CONDITIONS
In order to be exempt from the prohibitions of section 9 of the ESA, Pacific Gas and
Electric Company (PG&E)must ensure compliance with the following terms and
conditions, which implement the reasonable and prudent measure described above.These
terms and conditions are nondiscretionary.
1. PG&E must include full implementation and adherence to the conservation
measures as a condition of any permit or contract issued for the Project.
2. PG&E must require that all personnel associated with this project are made aware
of the conservation measures and the responsibility to implement them fully.
MONITORING
PG&E must contact the Service’s Bay-Delta Fish and Wildlife Office at (916) 930-5603
within three working days to report direct encounters between listed species and Project
workers and their equipment whereby incidental take in the form of harassment, harm,
injury, or death occurs.Due to the lack of cellular signal within the river canyon and
associated delays, the Service allows three days for reporting instead of our typical one day.
When injured or killed individuals of the listed species are found, PG&E must follow the
steps outlined in the Salvage and Disposition of Individuals section below.
Document Accession #: 20240916-3001 Filed Date: 09/16/2024
Project No. 2107-045 -7 -
1. For those components of the action that will require the capture and relocation of
any listed species, PG&E shall contact the Bay-Delta Fish and Wildlife Office at
(916) 930-5603 within three working days to report the action.
SALVAGE AND DISPOSITION OF INDIVIDUALS
Injured listed species must be cared for by a licensed veterinarian or other qualified
person(s), such as the FWS-approved biologist. Dead individuals must be sealed in a
resealable plastic bag containing a paper with the date and time when the animal was
found, the location where it was found, and the name of the person who found it, and the
bag containing the specimen frozen in a freezer located in a secure site, until instructions
are received from the Service regarding the disposition of the dead specimen. The
Service contact person is the FERC Coordinator at the Bay-Delta Fish and Wildlife
Office at (916) 930-5603.
CONSERVATION RECOMMENDATIONS
The Service recommends the following actions:
1. Continue to work closely with the Service to determine the best applicable
management for the frog within the Project area, including protective ramping
rates and other measures that reduce impacts to various life stages of the species
from implementation of the Poe Hydroelectric Project.
Document Accession #: 20240916-3001 Filed Date: 09/16/2024
Document Content(s)
p-2107-045.docx...........................................................1
Document Accession #: 20240916-3001 Filed Date: 09/16/2024