West Mojave Plan FEIR/S - Desert Managers Group

• Because the Section 7 is cheaper and faster, project proponents select that alternativewhenever federal lands, even a very small proportion of project lands, or other regulatoryoversight is involved. This results in projects that cover large acreages of private landsand small to moderate amounts of federal lands being addressed under Section 7procedures.• The federal standard of “may affect” has a lower threshold for authorization than thestandards for a private Section 10(a) permit. For Section 7, both direct and indirectimpacts “may affect” tortoises, whereas authorization under Section 10(a) is requiredonly if actual take will result.• When construction or land disturbance on private land involves only ministerial permits, oris not subject to the jurisdiction’s permitting authority (e.g.. agriculture), it is typically leftto the project proponent and the USFWS to determine whether take will occur. Suchprojects, however, are individually minor enough that the wildlife agencies seldom becomeinvolved and the project proponent does not normally conduct biota surveys. The highcosts involved with the Section 10(a) permitting process may contribute to the reluctance oflocal jurisdictions to incorporate additional oversight of ministerial projects into theirzoning ordinances relative to biological resources.Many of the differences between Section 7 and Section 10(a) permitting have beendescribed and compared in LaRue (1994). In general, relative to Section 10(a), Section 7 has thefollowing advantages for project proponents: (a) it is quicker; (b) it facilitates project completion;(c) it avoids interagency conflicts; and, (d) it is less expensive. Cumulatively, each of these factorshas contributed, along with those given above, to more Section 7 authorizations as compared toSection 10(a). Recommendations were made to the USFWS in 1994 to expedite the issuance ofsmall-project Section 10(a) permits: (a) provide meaningful direction to the private developmentcommunity; (b) set a time limit for Section 10(a) permit review; (c) localize the review process;(d) ensure consistency; and, (e) ensure continuity (LaRue 1994).One problem associated with development of private lands is the inconsistent approachesamong the many different jurisdictions. In one city, for example, the planning department requirestortoise surveys on single-family residential lots, which are covered by ministerial permits in otherjurisdictions and therefore not subject to biota surveys. Some cities have identified areas wheretortoise surveys are no longer being performed. There are several examples where the biologicalconsultant erroneously concluded that a few tortoise scat and/or old burrows did not constituteoccupied habitat. Based upon the consultant’s conclusion, jurisdictions did not require applicantsto obtain necessary permits and, in several cases, tortoises were later found on site. There arenumerous cases where the project proponent completed a focused tortoise survey, and thejurisdiction (or regulatory agency) later required the applicant to conduct additional focusedsurveys for burrowing owl, LeConte’s thrasher, and Mohave fringe-toed lizards.There are significant problems associated with the current regulatory process fordetermining and mitigating take of the Mohave ground squirrel. Fewer than a dozen biologists arepermitted by CDFG to trap the MGS, and the trapping period (generally between March and May)Chapter 3 3-42