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HomeMy WebLinkAboutAppendix B - Biological Resources Amendment (Enclave) 2201 N. Grand Avenue #10098 | Santa Ana, CA 92711-0098 | (714) 716-5050 www.ELMTConsulting.com November 10, 2025 NORTH FONTANA INVESTMENT COMPANY, LLC Contact: Stacey Sassaman 1156 North Mountain Avenue Upland, California 91786 SUBJECT: Biological Resources Assessment for the Proposed Project Located within Assessor Parcel Number 1108-081-04 in the City of Fontana, San Bernardino County, California Introduction This report contains the findings of ELMT Consulting’s (ELMT) biological resources assessment for the proposed multi-tenant project (project site or site) located within Assessor Parcel Number (APN) 1108- 081-04 in the City of Fontana, San Bernardino County, California. The initial habitat assessment was conducted on October 25, 2023, and a follow up survey was conducted on October 29, 2025 to document baseline conditions and assess the potential for special-status1 plant and wildlife species to occur within the project site that could pose a constraint to implementation of the proposed project. Special attention was given to the suitability of the project site to support burrowing owl (Athene cunicularia), San Bernardino kangaroo rat (Dipodomys merriami parvus), California gnatcatcher (Polioptila californica californica), and other special-status plant and wildlife species identified by the California Department of Fish and Wildlife’s (CDFW) California Natural Diversity Database (CNDDB), and other electronic databases as potentially occurring in the general vicinity of the project. Additionally, the report also addresses resources protected under the Migratory Bird Treaty Act (MBTA) and California Fish and Game Code (FGC), federal Clean Water Act (CWA) regulated by the United States Army Corps of Engineers (Corps) and Regional Water Quality Control Board (Regional Board) respectively, and Section 1602 of the FGC administered by CDFW. Project Location The project site is generally located north of State Route 210, southeast of Interstate 15, and southwest of Interstate 215 in the City of Fontana, San Bernardino County, California. The site is depicted on the Devore quadrangle of the United States Geological Survey’s (USGS) 7.5-minute map series within section 25 of Township 1 North, Range 6 West. Specifically, the project site is bounded to the south by Curtis Avenue and is located within APN 1108-081-04. Refer to Exhibits 1-3 in Attachment A. 1 As used in this report, “special-status” refers to plant and wildlife species that are federally and State listed, proposed, or candidates; plant species that have been designated with a California Native Plant Society Rare Plant Rank; wildlife species that are designated by the CDFW as fully protected, species of special concern, or watch list species; and specially protected natural vegetation communities as designated by the CDFW. November 10, 2025 Page 2 APN 1108-081-04 Biological Resources Assessment Methodology A literature review and records search were conducted to determine which special-status biological resources have the potential to occur on or within the general vicinity of the project site. In addition to the literature review, a general habitat assessment or field investigation of the project site was conducted to document existing conditions and assess the potential for special-status biological resources to occur within the project site. Literature Review Prior to conducting the field investigation, a literature review and records search was conducted for special- status biological resources potentially occurring on or within the vicinity of the project site. Previously recorded occurrences of special-status plant and wildlife species and their proximity to the project site was determined through a query of the CDFW’s QuickView Tool in the Biogeographic Information and Observation System (BIOS), CNDDB Rarefind 5, the California Native Plant Society’s (CNPS) Electronic Inventory of Rare and Endangered Vascular Plants of California, Calflora Database, compendia of special- status species published by CDFW, and the United States Fish and Wildlife Service (USFWS) species listings. All available reports, survey results, and literature detailing the biological resources previously observed on or within the vicinity of the project site was reviewed to understand existing site conditions and note the extent of any disturbances that have occurred within the project site that would otherwise limit the distribution of special-status biological resources. Standard field guides and texts were reviewed for specific habitat requirements of special-status and non-special-status biological resources, as well as the following resources: • Google Earth Pro historic aerial imagery (1985-2025); • United States Department of Agriculture (USDA) Natural Resource Conservation Service (NRCS), Soil Survey 2; • USFWS Critical Habitat designations for Threatened and Endangered Species; and • USFWS Endangered Species Profiles. The literature review provided a baseline from which to inventory the biological resources potentially occurring within the project site. The CNDDB database was used, in conjunction with ArcGIS software, to locate the nearest recorded occurrences of special-status species and determine the distance from the project site. Field Investigation Following the literature review, ELMT biologists inventoried and evaluated the condition of the habitat within the project site on October 25, 2023. A follow up survey was conducted on October 29, 2025 to reconfirm existing site conditions. Plant communities and land cover types identified on aerial photographs during the literature review were verified by walking meandering transects throughout the project site. In 2 A soil series is defined as a group of soils with similar profiles developed from similar parent materials under comparable climatic and vegetation conditions. These profiles include major horizons with similar thickness, arrangement, and other important characteristics, which may promote favorable conditions for certain biological resources. November 10, 2025 Page 3 APN 1108-081-04 Biological Resources Assessment addition, aerial photography was reviewed prior to the site investigation to locate potential natural corridors and linkages that may support the movement of wildlife through the area. These areas identified on aerial photography were then walked during the field investigation. Soil Series Assessment On-site and adjoining soils were researched prior to the field investigation using the USDA NRCS Soil Survey for San Bernardino County, California. In addition, a review of the local geological conditions and historical aerial photographs was conducted to assess the ecological changes that the project site has undergone. Plant Communities Plant communities were mapped using 7.5-minute USGS topographic base maps and aerial photography. The plant communities were classified in accordance with Sawyer, Keeler-Wolf and Evens (2009), delineated on an aerial photograph, and then digitized into GIS Arcview. The Arcview application was used to compute the area of each plant community and/or land cover type in acres. Plants Common plant species observed during the field investigation were identified by visual characteristics and morphology in the field and recorded in a field notebook. Unusual and less-familiar plants were photographed in the field and identified in the laboratory using taxonomic guides. Taxonomic nomenclature used in this study follows the 2012 Jepson Manual (Hickman 2012). In this report, scientific names are provided immediately following common names of plant species (first reference only). Wildlife Wildlife species detected during the field investigation by sight, calls, tracks, scat, or other sign were recorded during surveys in a field notebook. Field guides used to assist with identification of wildlife species during the survey included The Sibley Field Guide to the Birds of Western North America (Sibley 2003), A Field Guide to Western Reptiles and Amphibians (Stebbins 2003), and A Field Guide to Mammals of North America (Reid 2006). Although common names of wildlife species are well standardized, scientific names are provided immediately following common names in this report (first reference only). Jurisdictional Drainages and Wetlands Aerial photography was reviewed prior to conducting a field investigation in order to locate and inspect any potential natural drainage features, ponded areas, or water bodies that may fall under the jurisdiction of the United States Army Corps of Engineers (Corps), Regional Water Quality Control Board (Regional Board), or CDFW. In general, surface drainage features indicated as blue-line streams on USGS maps that are observed or expected to exhibit evidence of flow are considered potential riparian/riverine habitat and are also subject to state and federal regulatory jurisdiction. In addition, ELMT reviewed jurisdictional waters information through examining historical aerial photographs to gain an understanding of the impact of land-use on natural drainage patterns in the area. The USFWS National Wetland Inventory (NWI) and Environmental Protection Agency (EPA) Water Program “My Waters” data layers were also reviewed to determine whether any hydrologic features and wetland areas have been documented on or within the vicinity of the project site. November 10, 2025 Page 4 APN 1108-081-04 Biological Resources Assessment Existing Site Conditions The proposed project site is located in an area that historically supported agricultural land uses and rural communities and has undergone significant urbanization in recent decades. At present, the site is bounded to the west, north, and east by residential development, and to the south by Curtis Avenue with residential and recreational developments beyond. The site itself supports developed land and undeveloped, vacant land that has been impacted by several decades of vehicle access, staging and stockpiling activities associated with surrounding construction, weed abatement activities, illegal dumping, and various other impacts associated with on-site and surrounding development. According to historic aerials, these disturbances have been ongoing since at least 1938, with the site being entirely surrounded by development or construction since 2018. Topography and Soils On-site elevation ranges from approximately 1,560 to 1,585 feet above mean sea level and generally slopes from north to south. On-site topography is generally flat with no areas of significant topographic relief. Based on the NRCS USDA Web Soil Survey, the project site is historically underlain by Soboba gravelly loamy sand (0 to 9 percent slopes). Refer to Exhibit 4, Soils, in Attachment A. Soils on-site are generally very rocky and have been mechanically disturbed and compacted from grading activities, historic and ongoing land uses, and surrounding development. Vegetation The project site supports one (1) plant community: degraded chamise chaparral. In addition, the site supports two (2) land cover types that would be classified as disturbed and developed (refer to Exhibit 5, Vegetation, in Attachment A). Refer to Attachment B, Site Photographs, for representative site photographs. The project site supports a degraded chamise chaparral plant community following decades of disturbance and isolation from local fluvial processes. The degraded chamise chaparral plant commuinty found onsite has been isolated from the fluvial influences of Lytle Creek for several decades since the installation of levees and other flood control infrastructure to the north. The absence of seasonal scouring has resulted in a generally uniform, albeit sparse, distribution of woody native perennial species, with an herbaceous layer dominated by non-native annual plant species. Common native plant species observed in this plant community include deer weed (Acmispon glaber), chamise (Adenostoma fasciculatum), California croton (Croton californicus), doveweed (Croton setiger), sacred datura (Datura wrightii), Canada horseweed (Erigeron canadensis), California buckwheat (Eriogonum fasciculatum), common sunflower (Helianthus annuus), telegraph weed (Heterotheca grandiflora), wild cucumber (Marah macrocarpa), hollyleaf cherry (Prunus ilicifolia), fragrant sumac (Rhus aromatica), and twiggy wreath plant (Stephanomeria virgata); and common non-native species observed include wild oat (Avena sp.), nettleleaf goosefoot (Chenopodium murale), longbeak stork's bill (Erodium botrys), redstem stork's bill (Erodium cicutarum), spotted spurge (Euphorbia maculata), shortpod mustard (Hirschfeldia incana), cheeseweed mallow (Malva parviflora), tree tobacco (Nicotiana glauca), russian thistle (Salsola tragus), Mediterranean grass (Schismus barbatus), common sowthistle (Sonchus oleraceus), and puncture vine (Tribulus terrestris). November 10, 2025 Page 5 APN 1108-081-04 Biological Resources Assessment Disturbed land is supported along site boundaries, within areas adjacent to developed land, and within artificial strips that are maintained during weed-abatement activities. These areas vary from minimally to densely vegetated and are dominated by the same non-native weedy/early successional species observed in the degraded chamise chaparral plant community. Developed areas generally encompass all buildings/structures, parks, and paved or otherwise impervious surfaces. Within the boundaries of the project site, developed areas include an existing temporary office building and parking area in the southwest corner, and along the western and eastern boundaries, where compacted gravel access roads were installed to accommodate materials and equipment transport during construction of adjacent residential developments. These areas are often barren to moderately vegetated with especially weedy non-native species. Wildlife Plant communities provide foraging habitat, nesting/denning sites, and shelter from adverse weather or predation. This section provides a discussion of those wildlife species that were observed or are expected to occur within the project site. The discussion is to be used a general reference and is limited by the season, time of day, and weather conditions in which the field investigation was conducted. Wildlife detections were based on calls, songs, scat, tracks, burrows, and direct observation. The project site provides limited habitat for wildlife species except those adapted to a high degree of anthropogenic disturbances and development. Fish No fish or hydrogeomorphic features (e.g., creeks, ponds, lakes, reservoirs) with frequent sources of water that would support populations of fish were observed on or within the vicinity of the project site. Therefore, no fish are expected to occur and are presumed absent from the project site. Amphibians No amphibians or hydrogeomorphic features (e.g., perennial creeks, ponds, lakes, reservoirs) that would provide suitable habitat for amphibian species were observed on or within the vicinity of the project site. Therefore, no amphibians are expected to occur and are presumed absent from the project site. Reptiles The project site provides suitable foraging and cover habitat for a limited variety of local reptile species adapted to routine anthropogenic disturbance and general isolation by nearby development. The only reptilian species observed during the field investigation was western side-blotched lizard (Uta stansburiana elegans). Other common reptilian species that could be expected to occur on-site include great basin fence lizard (Sceloporus occidentalis longipes) and San Diego alligator lizard (Elgaria multicarinata webbii). Birds The project site and surrounding area provide suitable foraging and nesting habitat for a variety of local bird species. Bird species detected during the field investigation include rock pigeon (Columba livia), california scrub-jay (Aphelocoma californica), anna's hummingbird (Calypte anna), common raven (Corvus corax), american kestrel (Falco sparverius), house finch (Haemorhous mexicanus), california November 10, 2025 Page 6 APN 1108-081-04 Biological Resources Assessment towhee (Melozone crissalis), northern mockingbird (Mimus polyglottos), savannah sparrow (Passerculus sandwichensis), black phoebe (Sayornis nigricans), yellow-rumped warbler (Setophaga coronata), western meadowlark (Sturnella neglecta), lesser goldfinch (Spinus psaltria), white-crowned sparrow (Zonotrichia leucophrys), song sparrow (Melospiza melodia), and mourning dove (Zenaida macroura). Mammals The project site provides suitable foraging and cover habitat for a mammalian species adapted to routine anthropogenic disturbance and general isolation from nearby development. Mammalian species detected during the field investigation include coyote (Canis latrans), kangaroo rat (Dipodomys sp.), domestic cat (Felis catus), and pocket gopher (Thomomys bottae). It should be noted that domestic cats supported on- site are provided food by local residents, as evidenced by pet food bowls observed in this area. Additional common mammalian species that could be expected to occur on-site include opossum (Didelphis virginiana), deer mouse (Peromyscus californicus), and raccoon (Procyon lotor). Nesting Birds No active avian nests or birds exhibiting nesting behavior were observed during the field investigation, which was conducted outside of breeding season. The project site and surrounding area provide suitable foraging habitat and nesting opportunities for a variety of year-round and seasonal avian residents, as well as migrating songbirds that could occur in the area. In addition, the project site has the potential to provide suitable nesting opportunities for birds that nest on the open ground. Raptors are not expected to nest on- site due to the lack of suitable nesting opportunities. Nesting birds are protected pursuant to the Migratory Bird Treaty Act (MBTA) and California Fish and Game Code (Sections 3503, 3503.5, 3511, and 3513 prohibit the take, possession, or destruction of birds, their nests or eggs). If construction occurs between February 1st and August 31st, a pre-construction clearance survey for nesting birds should be conducted within three (3) days of the start of any vegetation removal or ground disturbing activities to ensure that no nesting birds will be disturbed during construction. Migratory Corridors and Linkages Habitat linkages provide connections between larger habitat areas that are separated by development. Wildlife corridors are similar to linkages but provide specific opportunities for animals to disperse or migrate between areas. A corridor can be defined as a linear landscape feature of sufficient width to allow animal movement between two comparatively undisturbed habitat fragments. Adequate cover is essential for a corridor to function as a wildlife movement area. It is possible for a habitat corridor to be adequate for one species yet still inadequate for others. Wildlife corridors are features that allow for the dispersal, seasonal migration, breeding, and foraging of a variety of wildlife species. Additionally, open space can provide a buffer against both human disturbance and natural fluctuations in resources. According to the San Bernardino County General Plan, the project site is not mapped as occurring within or adjacent to any Major Open Space Areas. The nearest Major Open Space Area to the project site is Cajon Pass; in proximity to the site, the Cajon Pass is composed of the Lytle Creek and Cajon Creek washes. However, in the years since the Major Open Space Areas were mapped, the southwest portion of the Cajon Pass has been largely developed and presently supports mostly residential tract neighborhoods. At present, remaining open space in proximity to the project site occurs approximately 1.5 miles to the northeast beyond November 10, 2025 Page 7 APN 1108-081-04 Biological Resources Assessment existing development. Additionally, there are no riparian corridors, creeks, or useful patches of steppingstone habitat (natural areas) within or connecting the project site to these, or any other, identified wildlife corridors or linkages. As a result, implementation of the proposed project will not disrupt or have any adverse effects on any migratory corridors or linkages in the surrounding area. Jurisdictional Areas There are three key agencies that regulate activities within inland streams, wetlands, and riparian areas in California. The Corps Regulatory Branch regulates discharge of dredge or fill materials into “waters of the United States” pursuant to Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act. Of the State agencies, the CDFW regulates alterations to streambed and bank under Fish and Wildlife Code Sections 1600 et seq., and the Regional Board regulates discharges into surface waters pursuant to Section 401 of the CWA and the California Porter-Cologne Water Quality Control Act. No jurisdictional drainage and/or wetland features were observed on the project site during the field investigation. Further no blueline streams, have been recorded on the project site. Therefore, development of the project will not result in impacts to Corps, Regional Board, or CDFW jurisdiction and regulatory approvals will not be required. Special-Status Biological Resources The CNDDB Rarefind 5 and the CNPS Electronic Inventory of Rare and Endangered Vascular Plants of California were queried for reported locations of special-status plant and wildlife species as well as special- status natural plant communities in the Devore USGS 7.5-minute quadrangle. Only one quadrangle was queried due to the proximity of the project site to quadrangle boundaries, regional topography, and surrounding development. The habitat assessment evaluated the conditions of the habitat(s) within the boundaries of the project site to determine if the existing plant communities, at the time of the survey, have the potential to provide suitable habitat(s) for special-status plant and wildlife species. The literature search identified twenty (20) special-status plant species, forty-five (45) special-status wildlife species, and three (3) special-status plant communities as having the potential to occur within the Devore 7.5-minute quadrangle. Special-status plant and wildlife species were evaluated for their potential to occur within the project site based on habitat requirements, availability and quality of suitable habitat, and known distributions. Species determined to have the potential to occur within the general vicinity of the project site is presented in Attachment D: Potentially Occurring Special-Status Biological Resources. Special-Status Plants According to the CNDDB and CNPS, twenty (20) special-status plant species have been recorded in the Devore quadrangle (refer to Attachment D). No special-status plant species were observed on-site during the field investigation. The project site has been subject to anthropogenic disturbances from construction activities, spoils dumping, and adjacent and surrounding development; the latter of which has removed on- site habitats from historic hydrological regimes that once shaped the vegetative structure of plant communities in the area. These disturbances have reduced, if not eliminated, the suitability of the habitat to support special-status plant species known to occur in the general vicinity of the project site. Based on habitat requirements for specific special-status plant species, the availability and quality of November 10, 2025 Page 8 APN 1108-081-04 Biological Resources Assessment habitats needed by each species, and known distributions, it was determined that the project site does not have potential to support any of the special-status plant species known to occur in the vicinity and all are presumed to be absent. No further surveys are recommended. Special-Status Wildlife According to the CNDDB, forty-five (45) special-status wildlife species have been reported in the Devore quadrangle (refer to Attachment D). No special-status wildlife species were observed during the field investigation. Based on habitat requirements for specific species and the availability and quality of on-site habitats, it was determined that the proposed project has a high potential to support Cooper’s hawk (Accipiter cooperii), Costa’s hummingbird (Calypte costae), and California horned lark (Eremophila alpestris actia); and a low potential to support Bell's sage sparrow (Artemisiospiza belli belli). It was further determined that the project site does not have the potential to support any of the remaining special-status wildlife species known to occur in the vicinity and all are presumed to be absent. None of the aforementioned species are federally or state listed as endangered or threatened. Of the aforementioned avian species, only Costa’s hummingbird and Bell’s sage sparrow might be expected to nest on-site. Cooper’s hawk is not expected to nest on-site due to the lack of suitable nesting opportunities and California horned lark is not expected to nest on-site as the presence of free-roaming domestic cats precludes ground-nesting avian species from nesting. Based on regional significance, the potential occurrence of burrowing owl, San Bernardino kangaroo rat, and California gnatcatcher within the project site are described in further detail below: Burrowing Owl The burrowing owl is currently listed as a California Candidate Endangered Species. It is a grassland specialist distributed throughout western North America where it occupies open areas with short vegetation and bare ground within shrub, desert, and grassland environments. Burrowing owls use a wide variety of arid and semi-arid environments with well-drained, level to gently-sloping areas characterized by sparse vegetation and bare ground (Haug and Didiuk 1993; Dechant et al. 1999). Burrowing owls are dependent upon the presence of burrowing mammals (such as ground squirrels) whose burrows are used for roosting and nesting (Haug and Didiuk 1993). The presence or absence of colonial mammal burrows is often a major factor that limits the presence or absence of burrowing owls. Where mammal burrows are scarce, burrowing owls have been found occupying man-made cavities, such as buried and non-functioning drain pipes, stand- pipes, and dry culverts. Burrowing mammals may burrow beneath rocks and debris or large, heavy objects such as abandoned cars, concrete blocks, or concrete pads. They also require open vegetation allowing line- of-sight observation of the surrounding habitat to forage as well as watch for predators. No burrowing owls or recent sign (i.e., pellets, feathers, castings, or whitewash) were observed during the field investigation. Portions of the project site are unvegetated and/or vegetated with low-growing plant species that allow for line-of-sight observation favored by burrowing owls. However, the project site lacks suitable burrows (>4 inches in diameter) capable of providing nesting opportunities. In addition, the site is surrounded by electrical and light poles which provide perching opportunities for larger raptor species (i.e., red-tailed hawk [Buteo jamaicensis]) that prey on burrowing owls. Burrowing owl is further precluded from establishing on-site due to the presence of free-roaming domestic cats. November 10, 2025 Page 9 APN 1108-081-04 Biological Resources Assessment Based on the results of the field investigation, it was determined that the project site does not have potential to support burrowing owl and focused surveys are not recommended. However, out of an abundance of caution, a preconstruction burrowing owl clearance survey shall be conducted prior to development to ensure burrowing owl remain absent from the project site. San Bernardino Kangaroo Rat The San Bernardino kangaroo rat, federally listed as endangered, is one of several kangaroo rat species in its range. The Dulzura, the Pacific kangaroo rat (Dipodomys agilis) and the Stephens kangaroo rat (Dipodomys stephensi) occur in areas occupied by the San Bernardino kangaroo rat, but these other species have a wider habitat range. The habitat of the San Bernardino kangaroo rat is described as being confined to pioneer and intermediate Riversidean Alluvial Fan Sage Scrub (RAFSS) habitats, with sandy soils deposited by fluvial (water) rather than Aeolian (wind) processes. Burrows are dug in loose soil, usually near or beneath shrubs. The San Bernardino kangaroo rat is one of three subspecies of the Merriam’s kangaroo rat. The Merriam’s kangaroo rat is a widespread species that can be found from the inland valleys to the deserts. The subspecies known as the San Bernardino kangaroo, however, is confined to inland valley scrub communities, and more particularly, to scrub communities occurring along rivers, streams and drainages. Most of the drainages have been historically altered as a result of flood control efforts and the resulting increased use of river resources, including mining, off-road vehicle use and road and housing development. This increased use of river resources has resulted in a reduction in both the amount and quality of habitat available for the San Bernardino kangaroo rat. The past habitat losses and potential future losses prompted the emergency listing of the San Bernardino kangaroo rat as an endangered species (USFWS, 1998a). PCE’s are physical or biological features essential to the conservation of a species for which its designated critical habitat is based on. Examples of PCE’s include food, water, space for individual and population growth, cover or shelter, etc. The PCEs essential to support the biological needs of foraging, reproducing, rearing of young, intra- specific communication, dispersal, genetic exchange, or sheltering for San Bernardino kangaroo rat are: 1. River, creek, stream, and wash channels; alluvial fans, flood plains, flood benches and terraces; and historic braided channels that are subject to dynamic geomorphological and hydrological processes; 2. Alluvial sage scrub and associated vegetation such as coastal sage scrub and chamise chaparral with a moderately open canopy; 3. Soil series consisting of sand, sandy loam, or loam within its geographical range; and 4. Upland areas proximal to flood plains containing suitable habitat (land adjacent to alluvial fan that provides refugia). San Bernardino kangaroo rat is known to occur within Lytle Creek. The project site has been generally removed from the hydrological influences of Lytle Creek since the installation of Interstate 15 and associated flood control infrastructure since the mid-1900’s, resulting in the on-site RAFSS plant community no longer exhibiting the dynamic vegetative succession and diversity typical of this plant community. In addition, the development of extensive residential neighborhood tracts in the mid-1990’s thoroughly isolated the project site from suitable habitats within downstream portions of Lytle Creek. Undeveloped portions of the project site are underlain with rocky soils that have been heavily disturbed and November 10, 2025 Page 10 APN 1108-081-04 Biological Resources Assessment compacted following decades of anthropogenic disturbance. Field sign for kangaroo rat, including San Bernardino kangaroo rat, is distinctive and readily noted in the field. No sign (e.g., San Bernardino kangaroo rat characteristic burrows, dusting baths, and/or tail drags) was observed during the field investigation. Additionally, the project site no longer is subject to the hydrologic influence of Lytle Creek due to the channelization of Lytle Creek flood control purposes. The project site is not subject to dynamic geomorphological and hydrological processes needed to scour and reset the onsite habitats back to pioneer or intermediate RAFSS habitats. Further, the project site no longer receives sand or sandy loam soils from scouring events needed by San Bernardino kangaroo rat for burrowing. Instead, the site supports compact and rocky soils. Based on these conditions, it was determined that the project site does not provide the requisite habitat elements needed by San Bernardino kangaroo rat to be present. Therefore, it was determined that San Bernardino kangaroo rat is presumed absent from the project site. No focused surveys are recommended. California Gnatcatcher California gnatcatcher is a federally threatened species with restricted habitat requirements, being an obligate resident of sage scrub habitats that are dominated by California sagebrush. This species generally occurs below 750 feet elevation in coastal regions and below 1,500 feet inland. According to J. Atwood and J. Bolsinger (1992), 99% of all California gnatcatcher observations are in areas with elevations below 950 feet. There are reported occurrences of California gnatcatcher at 1,600 feet elevation (500 meters). California gnatcatcher ranges from Ventura County south to San Diego County and northern Baja California and is less common in sage scrub with a high percentage of tall shrubs. It prefers habitat with more low-growing vegetation. California gnatcatchers breed between mid-February and the end of August, with peak activity from mid-March to mid-May. Population estimates indicate that there are approximately 1,600 to 2,290 pairs of coastal California gnatcatcher remaining. Declines are attributed to loss of sage scrub habitat due to development, as well as cowbird nest parasitism. California gnatcatcher are ground and shrub-foraging insectivores, feeding on small insects and other arthropods. A California gnatcatcher’s territory is highly variable in size and seems to be correlated with distance from the coast, ranging from less than 1 ha to over 9 ha. In a 1998 study, biologist Patrick Mock concluded that California gnatcatcher in the inland region require a larger territory than those on the coast in order to meet the nutritional requirements needed for survival and breeding. The Primary Constituent Elements (PCEs)3 essential to support the biological needs of foraging, reproducing, rearing of young, intra-specific communication, dispersal, genetic exchange, or sheltering for California gnatcatcher that were surveyed for include: 1. Dynamic and Successional sage scrub Habitats and Associated Vegetation (Diegan Coastal Sage Scrub, Coastal Sage-Chaparral Scrub, etc.) that provide space for individual and population growth, normal behavior, breeding, reproduction, nesting, dispersal and foraging; and 2. Non-sage scrub habitats such as chaparral, grassland, and riparian areas, in proximity to sage scrub 3 Specific elements of physical and biological features that provide for a species’ life-history process and are essential to the conservation of the species. November 10, 2025 Page 11 APN 1108-081-04 Biological Resources Assessment habitats have the potential to provide linkages to help with dispersal, foraging and nesting. The project site ranges in approximate elevation from 1,560 to 1,585 feet above mean sea level, which is just below the known elevational range of California gnatcatcher. Ninety-nine percent of all California gnatcatcher observations occur below 950 feet above msl. California gnatcatcher’s preferred habitat is coastal sage scrub dominated by California sage brush. The project site does not support coastal sage scrub habitat, which is the preferred habitat for California gnatcatcher In addition, the site is isolated from California gnatcatcher occupied coastal sage scrub habitats and linkage areas in the region by surrounding development. Given the degraded condition of the site, plus the lack of any observation of California gnatcatcher in north Fontana and isolation of the site due to the recent development of surrounding properties, it is highly unlikely that the site might support this species. Therefore, California gnatcatcher is presumed to be absent from the project site. No further surveys are recommended. Special-Status Plant Communities According to the CNDDB, three (3) special-status plant communities have been reported in the Devore USGS 7.5-minute quadrangle: RAFSS, Southern Riparian Forest, and Southern Sycamore Alder Riparian Woodland (refer to Attachment D). No special-status plant communities were observed onsite. Critical Habitats Under the federal Endangered Species Act, “Critical Habitat” is designated at the time of listing of a species or within one year of listing. Critical Habitat refers to specific areas within the geographical range of a species at the time it is listed that include the physical or biological features that are essential to the survival and eventual recovery of that species. Maintenance of these physical and biological features requires special management considerations or protection, regardless of whether individuals or the species are present or not. All federal agencies are required to consult with the USFWS regarding activities they authorize, fund, or permit which may affect a federally listed species or its designated Critical Habitat. The purpose of the consultation is to ensure that projects will not jeopardize the continued existence of the listed species or adversely modify or destroy its designated Critical Habitat. The designation of Critical Habitat does not affect private landowners, unless a project they are proposing is on federal lands, uses federal funds, or requires federal authorization or permits (e.g., funding from the Federal Highways Administration or a Clean Water Act Permit from the United States Army Corps of Engineers). If there is a federal nexus, then the federal agency that is responsible for providing the funding or permit would consult with the USFWS. In 2002 the USFWS designated Critical Habitat for San Bernardino kangaroo rat, and the project site was included within the designated area. Subsequently, in 2008 the USFWS reduced the boundaries of their previously designated Critical Habitat which removed the project site from designation. The lack of the needed habitat features within the project site, as well as in north Fontana, prompted USFWS to remove the Critical Habitat designation in this area. Finally, at the beginning of 2011 the original (2002) designated Critical Habitat was reinstated by a federal district court ruling which overturned the reduced (2008) designated Critical Habitat. Currently the project site is located within designated Critical Habitat Unit 2, Lytle Creek/Cajon Wash. Refer to Exhibit 6, Critical Habitat in Attachment A. However, since the project does not have a federal nexus, a Section 7 consultation with the USFWS would not be required for loss or adverse modification of November 10, 2025 Page 12 APN 1108-081-04 Biological Resources Assessment Critical Habitat. If a federal nexus does occur, a Section 7 Consultation will have to be initiated with USFWS. Conclusion Based literature review and field survey, and existing site conditions discussed in this report, implementation of the project is not expected to have significant impacts on federally or State listed species known to occur in the general vicinity of the project site. Additionally, the project will have no effect on designated Critical Habitat, since there is no federal nexus, or regional wildlife corridors/linkages because none exist within the area. No jurisdictional drainage and/or wetland features were observed on the project site during the field investigation. No further surveys are recommended. With completion of the recommendations provided below, no impacts to year-round, seasonal, or special-status avian residents or special-status species will occur from implementation of the proposed project. Recommendations Migratory Bird Treaty Act and Fish and Game Code In order to ensure impacts to special-status avian species (i.e., Bell’s sage sparrow, California horned lark, Cooper’s hawk, Costa’s hummingbird, and loggerhead shrike) do not occur from implementation of the proposed project, a pre-construction nesting bird clearance survey shall be conducted prior to ground disturbance. With implementation of the pre-construction nesting bird clearance survey, impacts to special- status avian species will be less than significant and no mitigation will be required. Nesting birds are protected pursuant to the Migratory Bird Treaty Act (MBTA) and California Fish and Game Code (Sections 3503, 3503.5, 3511, and 3513 prohibit the take, possession, or destruction of birds, their nests or eggs). In order to protect migratory bird species, a nesting bird clearance survey should be conducted prior to any ground disturbance or vegetation removal activities that may disrupt the birds during the nesting season. If construction occurs between February 1st and August 31st, a pre-construction clearance survey for nesting birds should be conducted within three (3) days of the start of any vegetation removal or ground disturbing activities to ensure that no nesting birds will be disturbed during construction. The biologist conducting the clearance survey should document a negative survey with a brief letter report indicating that no impacts to active avian nests will occur. If an active avian nest is discovered during the pre-construction clearance survey, construction activities should stay outside of a no-disturbance buffer. The size of the no-disturbance buffer will be determined by the wildlife biologist and will depend on the level of noise and/or surrounding anthropogenic disturbances, line of sight between the nest and the construction activity, type and duration of construction activity, ambient noise, species habituation, and topographical barriers. These factors will be evaluated on a case-by-case basis when developing buffer distances. Limits of construction to avoid an active nest will be established in the field with flagging, fencing, or other appropriate barriers; and construction personnel will be instructed on the sensitivity of nest areas. A biological monitor should be present to delineate the boundaries of the buffer area and to monitor the active nest to ensure that nesting behavior is not adversely affected by the construction activity. Once the young have fledged and left the nest, or the nest otherwise becomes inactive under natural conditions, construction activities within the buffer area can occur. November 10, 2025 Page 13 APN 1108-081-04 Biological Resources Assessment Please do not hesitate to contact Tom McGill at (951) 285-6014 or tmcgill@elmtconsulting.com or Travis McGill at (909) 816-1646 or travismcgill@elmtconsulting.com should you have any questions this report. Sincerely, Thomas J. McGill, Ph.D. Travis J. McGill Managing Director Director Attachments: A. Project Exhibits B. Site Plan C. Site Photographs D. Potentially Occurring Special-Status Biological Resources E. Regulations Attachment A Project Exhibits ^_ SAN BERNARDINO RIVERSIDE LOS ANGELES ORANGE SAN DIEGO Regional Vicinity BIOLOGICAL RESOURCES ASSESSMENT Exhibit 1 O Source: World Street Map, San Bernardino County 0 5 102.5 Miles PROJECTLOCATION ^_ PROJECTLOCATION Site Vicinity BIOLOGICAL RESOURCES ASSESSMENT Exhibit 2 O Source: USA Topographic Map, San Bernardino County 0 2,000 4,0001,000 Feet Legend Project Site Project Site BIOL OG ICAL R ESO URCES ASSESSMENT Exhibit 3 O Source: ESRI Aerial Imagery, San Bernardino County 0 125 25062.5 Feet Legend Project Site SoC Soils BIOL OG ICAL R ESO URCES ASSESSMENT Exhibit 4 O Source: ESRI Aerial Imagery, Soil Survey Geographic Database, San Bernardino County 0 125 25062.5 Feet Le gend Project Site Soboba gravelly loamy sand, 0 to 9% slopes (SoC) Vegetation BIOL OG ICAL R ESO URCES ASSESSMENT Exhibit 5 O Source: ESRI Aerial Imagery, San Bernardino County 0 125 25062.5 Feet Legend Project Site Degrade d C hamise Chap arral Distu rbed Develop ed Critical Haibtat BIOLOGICAL RESOURCES ASSESSMENT Exhibit 6 O Source: ESRI Aerial Imagery, USFWS Critical Habitat, San Bernardino County 0 2,000 4,0001,000 Feet Legend Project Site San Bernardino kangaroo rat Attachment B Site Plan engineering consultants ” ” ” ” ” ” · · · Attachment C Site Photographs Attachment C – Site Photographs APN 1108-081-04 Biological Resources Assessment Photograph 1: From the northwest corner of the project site looking south along the western boundary. Photograph 2: From the northwest corner of the project site looking east along the northern boundary. Attachment C – Site Photographs APN 1108-081-04 Biological Resources Assessment Photograph 3: From the northeast corner of the project site looking west along the northern boundary. Photograph 4: From the northeast corner of the project site looking south along the western boundary. Attachment C – Site Photographs APN 1108-081-04 Biological Resources Assessment Photograph 5: From the southeast corner of the project site looking north along the eastern boundary. Photograph 6: From the southeast corner of the project site looking west along the southern boundary. Attachment C – Site Photographs APN 1108-081-04 Biological Resources Assessment Photograph 7: From the southwest corner of the project site looking east along the southern boundary. Photograph 8: From the southwest corner of the project site looking north along the western boundary. Attachment D Potentially Occurring Special-Status Biological Resources Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Table D-1: Potentially Occurring Special-Status Biological Resources Scientific Name Common Name Status Habitat Observed On-site Potential to Occur SPECIAL-STATUS WILDLIFE SPECIES Accipiter cooperii Cooper’s hawk Fed: CA: None WL Generally found in forested areas up to 3,000 feet in elevation, especially near edges and rivers. Prefers hardwood stands and mature forests, but can be found in urban and suburban areas where there are tall trees for nesting. Common in open areas during nesting season. No High Suitable foraging habitat is present within and surrounding the site. No suitable nesting opportunities are present. This species is adapted to urban environments and occurs commonly. Aimophila ruficeps canescens southern California rufous-crowned sparrow Fed: CA: None WL Typically found between 3,000 and 6,000 feet in elevation. Breed in sparsely vegetated shrublands on hillsides and canyons. Prefers coastal sage scrub dominated by California sagebrush (Artemisia californica) but can also be found breeding in coastal bluff scrub, low-growing serpentine chaparral, and along the edges of tall chaparral habitats. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Anniella stebbinsi southern California legless lizard Fed: CA: None SSC Occurs primarily in areas with sandy or loose loamy soils under sparse vegetation of beaches, chaparral, or pine-oak woodland; or near sycamores, oaks, or cottonwoods that grow on stream terraces. Often found under or in the close vicinity of logs, rocks, old boards, and the compacted debris of woodrat nests. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Aquila chrysaetos golden eagle Fed: CA: None FP; WL Occupies nearly all terrestrial habitats of the western states except densely forested areas. Favors secluded cliffs with overhanging ledges and large trees for nesting and cover. Hilly or mountainous country where takeoff and soaring are supported by updrafts is generally preferred to flat habitats. Deeply cut canyons rising to open mountain slopes and crags are ideal habitat. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Ardea alba great egret Fed: CA: None None Yearlong resident throughout California, except for the high mountains and deserts. Feeds and rests in fresh, and saline emergent wetlands, along the margins of estuaries, lakes, and slow-moving streams, on mudflats and salt ponds, and in irrigated croplands and pastures. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Ardea herodias great blue heron Fed: CA: None None Fairly common all year throughout most of California, in shallow estuaries and fresh and saline emergent wetlands. Less common along riverine and rocky marine shores, in croplands, pastures, and in mountains about foothills. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Arizona elegans occidentalis California glossy snake Fed: CA: None SSC Occurs in a wide variety of habitat types including open desert, grasslands, shrublands, chaparral, and woodlands. Prefers areas where the soil is loose and sandy which allows for burrowing. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. On-site soils do not provide suitable burrowing conditions. Artemisiospiza belli belli Bell's sage sparrow Fed: CA: None WL Occurs in chaparral dominated by fairly dense stands of chamise. Also found in coastal sage scrub in south of range. No Low Limited foraging and nesting habitat are present within the project site. Aspidoscelis tigris stejnegeri coastal whiptail Fed: CA: None SSC Found in a variety of ecosystems, primarily hot and dry open areas with sparse foliage such as chaparral, woodland, and riparian areas. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Athene cunicularia burrowing owl Fed: CA: None CE Primarily a grassland species, but it persists and even thrives in some landscapes highly altered by human activity. Occurs in open, annual or perennial grasslands, deserts, and scrublands characterized by low-growing vegetation. The overriding characteristics of suitable habitat appear to be burrows for roosting and nesting and relatively short vegetation with only sparse shrubs and taller vegetation. No Presumed Absent Disturbed portions of the project site are unvegetated or minimally vegetated, providing line-of-sight foraging opportunities preferred by burrowing owl. However, no suitable burrows (>4 inches in diameter) were observed. Bassariscus astutus octavus southern California ringtail Fed: CA: None FP Ringtails can be found at elevations of up to 2900 m but are most common at elevations ranging from sea level to 1400 m. Found in a variety of habitats, they prefer habitats with rocky outcroppings, canyons, or talus slopes and can be found in semi-arid country, deserts, chaparral, oak woodlands, pinyon pine woodlands, juniper woodlands, montane conifer forests, and riparian habitats. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Batrachoseps gabrieli San Gabriel slender salamander Fed: CA: None None Known from select localities in the San Gabriel Mountains and the Mt. Baldy area of Los Angeles County and the western end of the San Bernardino Mountains in San Bernardino Co., with an elevation range of 1,200 - 5,085 feet. Occurs on talus slopes surrounded by a variety of conifer and montane hardwood species, including bigcone spruce, pine, white fir, incense cedar, canyon live oak, black oak, and California laurel. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Bombus crotchii Crotch bumble bee Fed: CA: None CE Colonial species that lives almost exclusively from coastal California east towards the Sierra-Cascade Crest and can be found uncommonly in western Nevada and south through Baja California. Inhabits grassland and scrub habitats in hotter and drier climates than most other bumblebee species and is only capable of tolerating a narrow range of climatic conditions. Feeds on a variety of annual and perennial plant species, classifying it as a dietary generalist. This species usually nests underground, often in abandoned rodent dens. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Bombus pensylvanicus American bumble bee Fed: CA: None None Prefers farmlands, meadows, grasslands, and open fields. Nests below grass or underground. Feeds on pollen of a wide variety of flowering plants including vetches, clovers, goldenrods, and many crop species. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Buteo regalis ferruginous hawk Fed: CA: None WL Occurs primarily in open grasslands and fields, but may be found in sagebrush flats, desert scrub, low foothills, or along the edges of pinyon-juniper woodland. Feeds primarily on small mammals and typically found in agricultural or open fields. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Calypte costae Costa’s hummingbird Fed: CA: None None Desert and semi-desert, arid brushy foothills and chaparral. A desert hummingbird that breeds in the Sonoran and Mojave Deserts. Departs desert heat moving into chaparral, scrub, and woodland habitats. No High Suitable foraging and nesting habitat are present within and surrounding the site. This species is adapted to urban environments and occurs commonly. Chaetodipus fallax fallax northwestern San Diego pocket mouse Fed: CA: None None Occurs in desert and coastal habitats in southern California, Mexico, and northern Baja California, from sea level to at least 1,400 meters above msl. Found in a variety of temperate habitats ranging from chaparral and grasslands to scrub forests and deserts. Requires low growing vegetation or rocky outcroppings, as well as sandy soils for burrowing. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. On-site soils do not provide suitable burrowing conditions. Chaetodipus fallax pallidus pallid San Diego pocket mouse Fed: CA: None None Occurs in sandy herbaceous areas, usually in association with rocks or coarse gravel in desert wash, desert scrub, desert succulent scrub, and pinyon-juniper communities. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. On-site soils do not provide suitable burrowing conditions. Circus hudsonius northern harrier Fed: CA: None SSC Frequents meadows, grasslands, open rangelands, desert sinks, fresh and saltwater emergent wetlands; seldom found in wooded areas. Mostly found in flat, or hummocky, open areas of tall, dense grasses moist or dry shrubs, and edges for nesting, cover, and feeding. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Dipodomys merriami parvus San Bernardino kangaroo rat Fed: CA: END CE; SSC Primarily found in Riversidian alluvial fan sage scrub and sandy loam soils, alluvial fans and flood plains, and along washes with nearby sage scrub. May occur at lower densities in Riversidian upland sage scrub, chaparral and grassland in uplands and tributaries in proximity to Riversidian alluvial fan sage scrub habitats. Tend to avoid rocky substrates and prefer sandy loam substrates for digging of shallow burrows. No Presumed Absent The RAFSS supported by the project site has been isolated from the hydrological influences of Lytle Creek for several decades and no longer provides suitable habitat. Dipodomys simulans Dulzura kangaroo rat Fed: CA: None None Relatively common in chaparral, coastal sage scrub, Riversidean alluvial fan sage scrub, and peninsular juniper woodland habitats. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. On-site soils do not provide suitable burrowing conditions. Elanus leucurus white-tailed kite Fed: CA: None FP Occurs in low elevation, open grasslands, savannah-like habitats, agricultural areas, wetlands, and oak woodlands. Uses trees with dense canopies for cover. Important prey item is the California vole. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Eremophila alpestris actia California horned lark Fed: CA: None WL Generally found in shortgrass prairies, grasslands, disturbed fields, or similar habitat types along the coast or in deserts. Trees are shrubs are usually scarce or absent. Generally rare in montane, coniferous, or chaparral habitats. Forms large flocks outside of the breeding season. No High Suitable foraging habitat is present within and surrounding the project site. Routine disturbance and free- roaming domestic cats likely preclude this species from nesting on-site. Falco mexicanus prairie falcon Fed: CA: None WL Commonly occur in arid and semiarid shrubland and grassland community types. Also occasionally found in open parklands within coniferous forests. During the breeding season, they are found commonly in foothills and mountains which provide cliffs and escarpments suitable for nest sites. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Falco peregrinus anatum American peregrine falcon Fed: CA: DL DL Uncommon winter resident of the inland region of southern California. Active nesting sites are known along the coast north of Santa Barbara, in the Sierra Nevada, and in other mountains of northern California. Breeds mostly in woodland, forest, and coastal habitats. Riparian areas and coastal and inland wetlands are important habitats yearlong, especially in nonbreeding seasons. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Icteria virens yellow-breasted chat Fed: CA: None SSC Primarily found in tall, dense, relatively wide riparian woodlands and thickets of willows, vine tangles, and dense brush with well-developed understories. Nesting areas are associated with streams, swampy ground, and the borders of small ponds. Breeding habitat must be dense to provide shade and concealment. It winters south the Central America. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Lanius ludovicianus loggerhead shrike Fed: CA: None SSC Often found in broken woodlands, shrublands, and other habitats. Prefers open country with scattered perches for hunting and fairly dense brush for nesting. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Lepus californicus bennettii San Diego black-tailed jackrabbit Fed: CA: None None Occurs in diverse habitats, but primarily is found in arid regions supporting shortgrass habitats. Openness of open scrub habitat is preferred over dense chaparral. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Microtus californicus mohavensis Mohave river vole Fed: CA: None SSC Found in moist habitats including meadows, freshwater marshes and irrigated pastures in the vicinity of the Mojave River. Suitable habitat it associated with ponds and irrigation canals along with the Mojave River proper. Alfalfa fields may also provide habitat. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Neolarra alba white cuckoo bee Fed: CA: None None Found in dry, sandy areas (particularly deserts) in the American southwest near the host plants for Perdita bee species, of which it is a nest parasite. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Neotoma lepida intermedia San Diego desert woodrat Fed: CA: None SSC Occurs in coastal scrub communities between San Luis Obispo and San Diego Counties. Prefers moderate to dense canopies, and especially rocky outcrops. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Nyctinomops femorosaccus pocketed free-tailed bat Fed: CA: None SSC Often found in pinyon-juniper woodlands, desert scrub, desert succulent shrub, desert riparian, desert wash, alkali desert scrub, Joshua tree, and palm oases. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Oncorhynchus mykiss irideus pop. 10 steelhead – southern california DPS Fed: CA: END CE Found in permanent coastal streams from San Diego to the Smith River. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Pandion haliaetus osprey Fed: CA: None WL Associated strictly with large, fish-bearing waters, primarily in ponderosa pine through mixed conifer habitats. Uses large trees, snags, and dead-topped trees in open forest habitats for cover and nesting. Requires open, clear waters for foraging and uses rivers, lakes, reservoirs, bays, estuaries, and surf zones. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Perognathus longimembris brevinasus Los Angeles pocket mouse Fed: CA: None SSC Occurs in lower elevation grasslands and coastal sage scrub communities in and around the Los Angeles Basin. Prefers open ground with fine sandy soils. May not dig extensive burrows, instead seeking refuge beneath weeds and dead leaves. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Phrynosoma blainvillii coast horned lizard Fed: CA: None SSC Occurs in a wide variety of vegetation types including coastal sage scrub, annual grassland, chaparral, oak woodland, riparian woodland and coniferous forest. In inland areas, this species is restricted to areas with pockets of open microhabitat, created by disturbance (i.e. fire, floods, roads, grazing, fire breaks). The key elements of such habitats are loose, fine soils with a high sand fraction; an abundance of native ants or other insects; and open areas with limited overstory for basking and low, but relatively dense shrubs for refuge. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. On-site soils do not provide suitable burrowing conditions. Polioptila californica californica coastal California gnatcatcher Fed: CA: THR SSC Obligate resident of sage scrub habitats that are dominated by California sagebrush (Artemisia californica). This species generally occurs below 750 feet elevation in coastal regions and below 1,500 feet inland. Ranges from the Ventura County, south to San Diego County and northern Baja California and it is less common in sage scrub with a high percentage of tall shrubs. Prefers habitat with more low-growing vegetation. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Rana muscosa southern mountain yellow-legged frog Fed: CA: END END; WL Occurs in lower elevation habitats characterized by rocky streambeds and wet meadows, while higher elevation habitats include lakes, ponds, and streams. Occupy streams in narrow, rock-walled canyons. Often found along rock walls or vegetated banks and always within a few feet of the water. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Rhinichthys osculus ssp. 8 Santa Ana speckled dace Fed: CA: None SSC Requires permanent flowing streams within summer water temperatures of 17 – 20 degrees Celsius. Inhabits shallow cobble and gravel riffles and small streams that flow through steep, rocky canyons with chaparral covered walls. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Salvadora hexalepis virgultea coast patch-nosed snake Fed: CA: None SSC Inhabits semi-arid brushy areas and chaparral in canyons, rocky hillsides, and plains. Requires friable soils for burrowing. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Setophaga petechia yellow warbler Fed: CA: None SSC Nests over all of California except the Central Valley, the Mojave Desert region, and high altitudes and the eastern side of the Sierra Nevada. Winters along the Colorado River and in parts of Imperial and Riverside Counties. Nests in riparian areas dominated by willows, cottonwoods, sycamores, or alders or in mature chaparral. May also use oaks, conifers, and urban areas near stream courses. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Spinus lawrencei Lawrence’s finch Fed: CA: None None Open woodlands, chaparral, and weedy fields. Closely associated with oaks. Nests in open oak or other arid woodland and chaparral near water. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Strix occidentalis occidentalis California spotted owl Fed: CA: None SSC Breeds and roosts in forests and woodland with large old trees and snags, high basal areas of trees and snags, dense canopies, multiple canopy layers, and downed woody debris. Large old trees are key as they provide nest sites and cover from weather. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Taxidea taxus American badger Fed: CA: None SSC Primarily occupy grasslands, parklands, farms, tallgrass and shortgrass prairies, meadows, shrub-steppe communities and other treeless areas with sandy loam soils where it can dig more easily for its prey. Occasionally found in open chaparral (with less than 50% plant cover) and riparian zones. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Vireo bellii pusillus least Bell’s vireo Fed: CA: END END Primarily occupy Riverine riparian habitat that typically feature dense cover within 1-2 meters of the ground and a dense, stratified canopy. Typically it is associated with southern willow scrub, cottonwood-willow forest, mule fat scrub, sycamore alluvial woodlands, coast live oak riparian forest, arroyo willow riparian forest, or mesquite in desert localities. It uses habitat which is limited to the immediate vicinity of water courses, 2,000 feet elevation in the interior. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. SPECIAL-STATUS PLANT SPECIES Ambrosia monogyra singlewhorl burrobush Fed: CA: CNPS: None None 2B.2 Found in sandy soils within chaparral and Sonoran desert scrub habitat. Found at elevations ranging from 33 to 1,640 feet. Blooming period is from August to November. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Calochortus plummerae Plummer's mariposa-lily Fed: CA: CNPS: None None 4.2 Prefers openings in chaparral, foothill woodland, coastal sage scrub, valley foothill grasslands, cismontane woodland, lower montane coniferous forest and yellow pine forest. Often found on dry, rocky slopes and soils and brushy areas. Can be very common after a fire. Found at elevations ranging from 330 to 5,580 feet. Blooming period is from May to July. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Chorizanthe parryi var. parryi Parry's spineflower Fed: CA: CNPS: None None 1B.1 Occurs on sandy and/or rocky soils in chaparral, coastal sage scrub, and sandy openings within alluvial washes and margins. Found at elevations ranging from 900 to 4,005 feet. Blooming period is from April to June. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Chorizanthe xanti var. leucotheca white-bracted spineflower Fed: CA: CNPS: None None 1B.2 Found in sandy or gravelly soils within coastal scrub (alluvial fans), Mojavean desert scrub, pinyon and juniper woodland habitats. Found at elevations ranging from 984 to 3,937 feet. Blooming period is from April to June. No Presumed Absent There is no suitable habitat present within the project site. Cryptantha incana Tulare cryptantha Fed: CA: CNPS: None None 1B.3 Occurs in lower montane coniferous forest (gravelly or rocky). Found at elevations ranging from 4,692 to 7,054 feet above msl. Blooming period is from June to August. No Presumed Absent There is no suitable habitat present within the project site. The project site occurs outside of the known elevation range for this species. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Dodecahema leptoceras slender-horned spineflower Fed: CA: CNPS: END END 1B.1 Grows in sandy soils on flood-deposited terraces and washes within chaparral and coastal scrub (alluvial fan sage scrub) habitats. Found at elevations ranging from 655 to 2,495 feet. Blooming period is from April to June. No Presumed Absent There is no suitable habitat present within the project site. Eriastrum densifolium ssp. sanctorum Santa Ana River woollystar Fed: CA: CNPS: END END 1B.1 Found in sandy soil in association with mature alluvial scrub. Ideal habitat appears to be a terrace or bench that receives overbank deposits every 50 to 100 years. Cryptogamic crusts are frequently present in occupied areas. Found at elevations ranging from 299 to 2,001 feet. Blooming period is from April to September. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Galium jepsonii Jepson's bedstraw Fed: CA: CNPS: None None 4.3 Found in granitic, rocky or gravelly soils within lower montane coniferous forest and upper montane coniferous forest habitats. Found at elevations ranging from 5,052 to 8,202 feet above msl. Blooming period is from July to August. No Presumed Absent There is no suitable habitat present within the project site. The project site occurs outside of the known elevation range for this species. Galium johnstonii Johnston’s bedstraw Fed: CA: CNPS: None None 4.3 Found in granitic, rocky or gravelly soils within lower montane coniferous forest and upper montane coniferous forest habitats. Found at elevations ranging from 5,052 to 8,202 feet. Blooming period is from July to August. No Presumed Absent There is no suitable habitat present within the project site. The project site occurs outside of the known elevation range for this species. Horkelia cuneata var. puberula Mesa horkelia Fed: CA: CNPS: None None 1B.1 Occurs on sandy or gravelly soils in chaparral, woodlands, and coastal scrub plant communities. Found at elevations ranging from 230 to 2,657 feet. Blooming period is from February to September. No Presumed Absent There is no suitable habitat present within or adjacent to the project site. Juglans californica southern California black walnut Fed: CA: CNPS: None None 4.2 Found in chaparral, cismontane woodland, coastal scrub, and riparian woodland habitats. Found at elevations ranging from 164 to 2,953 feet. Blooming period is from March to August. No Presumed Absent Suitable habitat is present within the project site; however, this conspicuous species was not observed on-site or nearby during the field investigation. Lilium humboldtii ssp. ocellatum ocellated humboldt lily Fed: CA: CNPS: None None 4.2 Found in openings within chaparral, cismontane woodland, coastal scrub, lower montane coniferous forest, and riparian woodland habitats. Found at elevations ranging from 98 to 5,906 feet in elevation. Blooming period is from March to August. No Presumed Absent There is no suitable habitat present within the project site. Lilium parryi lemon lily Fed: CA: CNPS: None None 1B.2 Prefers lower montane coniferous forest, riparian forests, upper montane coniferous forests, meadows and seeps. Found at elevations ranging from 4,003 to 9,006 feet. Blooming period is from July to August. No Presumed Absent There is no suitable habitat present within the project site. The project site occurs outside of the known elevation range for this species. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Lycium parishii Parish's desert-thorn Fed: CA: CNPS: None None 2B.3 Habitats include coastal scrub and Sonoran desert scrub. Found at elevations ranging from 443 to 3,281 feet. Blooming period is from March to April. No Presumed Absent There is no suitable habitat present within the project site. Malacothamnus parishii Parish’s bush-mallow Fed: CA: CNPS: None None 1A Species is presumed extinct. Habitats include coastal scrub and chaparral. Found at elevations ranging from 1,000 to 1,495 feet. Blooming period is from June to July. No Presumed Absent There is no suitable habitat present within the project site. The project site occurs outside of the known elevation range for this species. Monardella saxicola rock monardella Fed: CA: CNPS: None None 4.2 Found in rocky, usually serpentinite, soils within chaparral, closed-cone coniferous forest, and lower montane coniferous forest habitats. Found at elevations ranging from 1,640 to 5,906 feet. Blooming period is from June to September. No Presumed Absent There is no suitable habitat present within the project site. The project site occurs outside of the known elevation range for this species. Opuntia basilaris var. brachyclada short-joint beavertial Fed: CA: CNPS: None None 1B.2 Habitats include chaparral, Joshua tree woodland, Mojavean desert scrub, pinyon and juniper woodlands. Found at elevations ranging from 1,394 to 5,906 feet. Blooming period is from April to August. No Presumed Absent There is no suitable habitat present within the project site. Quercus durata var. gabrielensis San Gabriel oak Fed: CA: CNPS: None None 4.2 Grows in chaparral and cismontane woodland habitats. Found at elevations ranging from 1,476 to 3,280 feet. Blooming period is from April to May. No Presumed Absent There is no suitable habitat present within the project site. Senecio astephanus San Gabriel ragwort Fed: CA: CNPS: None None 4.3 Grows in rocky soils on slopes within chaparral and coastal bluff scrub habitats. Found at elevations ranging from 49 to 2,625 feet. Blooming period is from January to April. No Presumed Absent There is no suitable habitat present within the project site. Streptanthus bernardinus Laguna Mountains jewelflower Fed: CA: CNPS: None None 4.3 Grows in chaparral and lower montane coniferous forest on clay or decomposed granite soils. It is sometimes found in disturbed areas such as streamsides or roadcuts. From 4,724 to 8,202 feet in elevation. Blooming period is from May to August. No Presumed Absent There is no suitable habitat present within the project site. The project site occurs outside of the known elevation range for this species. CDFW SENSITIVE HABITATS Riversidian Alluvial Fan Sage Scrub CDFW Sensitive Habitat Occur within broad washes of sandy alluvial drainages that carry rainfall runoff sporadically in winter and spring but remain relatively dry through the remainder of the year. Is restricted to drainages and floodplains with very sandy substrates that have a dearth of decomposed plant material. These areas do not develop into riparian woodland or scrub due to the limited water resources and scouring by occasional floods. No Absent This plant community was not observed within or adjacent to the project site. Attachment D – Potentially Occurring Special-Status Biological Resources APN 1108-081-04 Biological Resources Assessment Scientific Name Common Name Status Habitat Observed On-site Potential to Occur Southern Riparian Forest CDFW Sensitive Habitat Dense riparian forests found along streams and rivers. Characteristic plant species include western sycamore, cottonwood, and many other wetland plants. No Absent This plant community was not observed within or adjacent to the project site. Southern Sycamore Alder Riparian Woodland CDFW Sensitive Habitat Occurs below 2,000 meters in elevation, sycamore and alder often occur along seasonally-flooded banks; cottonwoods and willows are also often present. Poison oak, mugwort, elderberry and wild raspberry may be present in understory. No Absent This plant community was not observed within or adjacent to the project site. U.S. Fish and Wildlife Service (USFWS) - Federal END- Federal Endangered THR- Federal Threatened California Department of Fish and Wildlife (CDFW) - California END- California Endangered THR- California Threatened CE - Candidate Endangered FP- California Fully Protected SSC- California Species of Concern WL- Watch List California Native Plant Society (CNPS) California Rare Plant Rank 1A Plants Presumed Extirpated in California and Either Rare or Extinct Elsewhere 1B Plants Rare, Threatened, or Endangered in California and Elsewhere 2B Plants Rare, Threatened, or Endangered in California, but More Common Elsewhere 4 Plants of Limited Distribution – A Watch List Threat Ranks 0.1- Seriously threatened in California 0.2- Moderately threatened in California 0.3- Not very threatened in California Attachment E Regulations Appendix E – Regulations Special status species are native species that have been afforded special legal or management protection because of concern for their continued existence. There are several categories of protection at both federal and state levels, depending on the magnitude of threat to continued existence and existing knowledge of population levels. Federal Regulations Endangered Species Act of 1973 Federally listed threatened and endangered species and their habitats are protected under provisions of the Federal Endangered Species Act (ESA). Section 9 of the ESA prohibits “take” of threatened or endangered species. “Take” under the ESA is defined as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any of the specifically enumerated conduct.” The presence of any federally threatened or endangered species that are in a project area generally imposes severe constraints on development, particularly if development would result in “take” of the species or its habitat. Under the regulations of the ESA, the United States Fish and Wildlife Service (USFWS) may authorize “take” when it is incidental to, but not the purpose of, an otherwise lawful act. Critical Habitat is designated for the survival and recovery of species listed as threatened or endangered under the ESA. Critical Habitat includes those areas occupied by the species, in which are found physical and biological features that are essential to the conservation of an ESA listed species and which may require special management considerations or protection. Critical Habitat may also include unoccupied habitat if it is determined that the unoccupied habitat is essential for the conservation of the species. Whenever federal agencies authorize, fund, or carry out actions that may adversely modify or destroy Critical Habitat, they must consult with USFWS under Section 7 of the ESA. The designation of Critical Habitat does not affect private landowners, unless a project they are proposing uses federal funds, or requires federal authorization or permits (e.g., funding from the Federal Highway Administration or a permit from the U.S. Army Corps of Engineers (Corps)). If USFWS determines that Critical Habitat will be adversely modified or destroyed from a proposed action, the USFWS will develop reasonable and prudent alternatives in cooperation with the federal institution to ensure the purpose of the proposed action can be achieved without loss of Critical Habitat. If the action is not likely to adversely modify or destroy Critical Habitat, USFWS will include a statement in its biological opinion concerning any incidental take that may be authorized and specify terms and conditions to ensure the agency is in compliance with the opinion. Migratory Bird Treaty Act The Migratory Bird Treaty Act (MBTA) (16 U.S. Government Code [USC] 703) makes it unlawful to pursue, capture, kill, possess, or attempt to do the same to any migratory bird or part, nest, or egg of any such bird listed in wildlife protection treaties between the United States, Great Britain, Mexico, Japan, and the countries of the former Soviet Union, and authorizes the U.S. Secretary of the Interior to protect and regulate the taking of migratory birds. It establishes seasons and bag limits for hunted species and protects migratory birds, their occupied nests, and their eggs (16 USC 703; 50 CFR 10, 21). Appendix E – Regulations The MBTA covers the taking of any nests or eggs of migratory birds, except as allowed by permit pursuant to 50 CFR, Part 21. Disturbances causing nest abandonment and/or loss of reproductive effort (i.e., killing or abandonment of eggs or young) may also be considered “take.” This regulation seeks to protect migratory birds and active nests. In 1972, the MBTA was amended to include protection for migratory birds of prey (e.g., raptors). Six families of raptors occurring in North America were included in the amendment: Accipitridae (kites, hawks, and eagles); Cathartidae (New World vultures); Falconidae (falcons and caracaras); Pandionidae (ospreys); Strigidae (typical owls); and Tytonidae (barn owls). The provisions of the 1972 amendment to the MBTA protects all species and subspecies of the families listed above. The MBTA protects over 800 species including geese, ducks, shorebirds, raptors, songbirds and many relatively common species. State Regulations California Environmental Quality Act (CEQA) The California Environmental Quality Act (CEQA) provides for the protection of the environment within the State of California by establishing State policy to prevent significant, avoidable damage to the environment through the use of alternatives or mitigation measures for projects. It applies to actions directly undertaken, financed, or permitted by State lead agencies. If a project is determined to be subject to CEQA, the lead agency will be required to conduct an Initial Study (IS); if the IS determines that the project may have significant impacts on the environment, the lead agency will subsequently be required to write an Environmental Impact Report (EIR). A finding of non-significant effects will require either a Negative Declaration or a Mitigated Negative Declaration instead of an EIR. Section 15380 of the CEQA Guidelines independently defines “endangered” and “rare” species separately from the definitions of the California Endangered Species Act (CESA). Under CEQA, “endangered” species of plants or animals are defined as those whose survival and reproduction in the wild are in immediate jeopardy, while “rare” species are defined as those who are in such low numbers that they could become endangered if their environment worsens. California Endangered Species Act (CESA) In addition to federal laws, the state of California implements the CESA which is enforced by CDFW. The CESA program maintains a separate listing of species beyond the FESA, although the provisions of each act are similar. State-listed threatened and endangered species are protected under provisions of the CESA. Activities that may result in “take” of individuals (defined in CESA as; “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill”) are regulated by CDFW. Habitat degradation or modification is not included in the definition of “take” under CESA. Nonetheless, CDFW has interpreted “take” to include the destruction of nesting, denning, or foraging habitat necessary to maintain a viable breeding population of protected species. The State of California considers an endangered species as one whose prospects of survival and reproduction are in immediate jeopardy. A threatened species is considered as one present in such small numbers throughout its range that it is likely to become an endangered species in the near future in the Appendix E – Regulations absence of special protection or management. A rare species is one that is considered present in such small numbers throughout its range that it may become endangered if its present environment worsens. State threatened and endangered species are fully protected against take, as defined above. The CDFW has also produced a species of special concern list to serve as a species watch list. Species on this list are either of limited distribution or their habitats have been reduced substantially, such that a threat to their populations may be imminent. Species of special concern may receive special attention during environmental review, but they do not have formal statutory protection. At the federal level, USFWS also uses the label species of concern, as an informal term that refers to species which might be in need of concentrated conservation actions. As the Species of Concern designated by USFWS do not receive formal legal protection, the use of the term does not necessarily ensure that the species will be proposed for listing as a threatened or endangered species. Fish and Game Code Fish and Game Code Sections 3503, 3503.5, 3511, and 3513 are applicable to natural resource management. For example, Section 3503 of the Code makes it unlawful to destroy any birds’ nest or any birds’ eggs that are protected under the MBTA. Further, any birds in the orders Falconiformes or Strigiformes (Birds of Prey, such as hawks, eagles, and owls) are protected under Section 3503.5 of the Fish and Game Code which makes it unlawful to take, possess, or destroy their nest or eggs. A consultation with CDFW may be required prior to the removal of any bird of prey nest that may occur on a project site. Section 3511 of the Fish and Game Code lists fully protected bird species, where the CDFW is unable to authorize the issuance of permits or licenses to take these species. Pertinent species that are State fully protected by the State include golden eagle (Aquila chrysaetos) and white-tailed kite (Elanus leucurus). Section 3513 of the Fish and Game Code makes it unlawful to take or possess any migratory nongame bird as designated in the MBTA or any part of such migratory nongame bird except as provided by rules and regulations adopted by the Secretary of the Interior under provisions of the MBTA. Native Plant Protection Act Sections 1900–1913 of the Fish and Game Code were developed to preserve, protect, and enhance Rare and Endangered plants in the state of California. The act requires all state agencies to use their authority to carry out programs to conserve Endangered and Rare native plants. Provisions of the Native Plant Protection Act prohibit the taking of listed plants from the wild and require notification of the CDFW at least ten days in advance of any change in land use which would adversely impact listed plants. This allows the CDFW to salvage listed plant species that would otherwise be destroyed. California Native Plant Society Rare and Endangered Plant Species Vascular plants listed as rare or endangered by the CNPS, but which have no designated status under FESA or CESA are defined as follows: California Rare Plant Rank 1A- Plants Presumed Extirpated in California and either Rare or Extinct Elsewhere 1B- Plants Rare, Threatened, or Endangered in California and Elsewhere Appendix E – Regulations 2A- Plants Presumed Extirpated in California, But More Common Elsewhere 2B- Plants Rare, Threatened, or Endangered in California, But More Common Elsewhere 3- Plants about Which More Information is Needed - A Review List 4- Plants of Limited Distribution - A Watch List Threat Ranks .1- Seriously threatened in California (over 80% of occurrences threatened / high degree and immediacy of threat) .2- Moderately threatened in California (20-80% occurrences threatened / moderate degree and immediacy of threat) .3- Not very threatened in California (<20% of occurrences threatened / low degree and immediacy of threat or no current threats known). Appendix E – Regulations There are three key agencies that regulate activities within inland streams, wetlands, and riparian areas in California. The Corps Regulatory Branch regulates activities pursuant to Section 404 of the Federal Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act. Of the State agencies, the CDFG regulates activities under the Fish and Game Code Section 1600-1616, and the Regional Board regulates activities pursuant to Section 401 of the CWA and the California Porter-Cologne Water Quality Control Act. Federal Regulations Section 404 of the Clean Water Act In accordance with the Revised Definition of “Waters of the United States”; Conforming (September 8, 2023), “waters of the United Sates” are defined as follows: (a) Waters of the United States means: (1) Waters which are: (i) Currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; (ii) The territorial seas; or (iii) Interstate waters; (2) Impoundments of waters otherwise defined as waters of the United States under this definition, other than impoundments of waters identified under paragraph (a)(5) of this section; (3) Tributaries of waters identified in paragraph (a)(1) or (2) of this section that are relatively permanent, standing or continuously flowing bodies of water; (4) Wetlands adjacent to the following waters: (i) Waters identified in paragraph (a)(1) of this section; or (ii) Relatively permanent, standing or continuously flowing bodies of water identified in paragraph (a)(2) or (a)(3) of this section and with a continuous surface connection to those waters; (5) Intrastate lakes and ponds not identified in paragraphs (a)(1) through (4) of this section that are relatively permanent, standing or continuously flowing bodies of water with a continuous surface connection to the waters identified in paragraph (a)(1) or (a)(3) of this section (b) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (a)(2) through (5) of this section: (1) Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act; (2) Prior converted cropland designated by the Secretary of Agriculture. The exclusion would cease upon a change of use, which means that the area is no longer available for the production of agricultural commodities. Notwithstanding the determination of an area's status as prior converted Appendix E – Regulations cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA; (3) Ditches (including roadside ditches) excavated wholly in and draining only dry land and that do not carry a relatively permanent flow of water; (4) Artificially irrigated areas that would revert to dry land if the irrigation ceased; (5) Artificial lakes or ponds created by excavating or diking dry land to collect and retain water and which are used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing; (6) Artificial reflecting or swimming pools or other small ornamental bodies of water created by excavating or diking dry land to retain water for primarily aesthetic reasons; (7) Waterfilled depressions created in dry land incidental to construction activity and pits excavated in dry land for the purpose of obtaining fill, sand, or gravel unless and until the construction or excavation operation is abandoned and the resulting body of water meets the definition of waters of the United States; and (8) Swales and erosional features (e.g., gullies, small washes) characterized by low volume, infrequent, or short duration flow. (c) In this section, the following definitions apply: (1) Wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas. (2) Adjacent means having a continuous surface connection (3) High tide line means the line of intersection of the land with the water's surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm. (4) Ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas. Appendix E – Regulations (5) Tidal waters means those waters that rise and fall in a predictable and measurable rhythm or cycle due to the gravitational pulls of the moon and sun. Tidal waters end where the rise and fall of the water surface can no longer be practically measured in a predictable rhythm due to masking by hydrologic, wind, or other effects. Section 401 of the Clean Water Act Pursuant to Section 401 of the CWA, any applicant for a federal license or permit to conduct any activity which may result in any discharge to waters of the United States must provide certification from the State or Indian tribe in which the discharge originates. This certification provides for the protection of the physical, chemical, and biological integrity of waters, addresses impacts to water quality that may result from issuance of federal permits, and helps insure that federal actions will not violate water quality standards of the State or Indian tribe. In California, there are nine Regional Water Quality Control Boards (Regional Board) that issue or deny certification for discharges to waters of the United States and waters of the State, including wetlands, within their geographical jurisdiction. The State Water Resources Control Board assumed this responsibility when a project has the potential to result in the discharge to waters within multiple Regional Boards. State Regulations Fish and Game Code Fish and Game Code Sections 1600 et. seq. establishes a fee-based process to ensure that projects conducted in and around lakes, rivers, or streams do not adversely impact fish and wildlife resources, or, when adverse impacts cannot be avoided, ensures that adequate mitigation and/or compensation is provided. Fish and Game Code Section 1602 requires any person, state, or local governmental agency or public utility to notify the CDFW before beginning any activity that will do one or more of the following: (1) substantially obstruct or divert the natural flow of a river, stream, or lake; (2) substantially change or use any material from the bed, channel, or bank of a river, stream, or lake; or (3) deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it can pass into a river, stream, or lake. Fish and Game Code Section 1602 applies to all perennial, intermittent, and ephemeral rivers, streams, and lakes in the State. CDFW’s regulatory authority extends to include riparian habitat (including wetlands) supported by a river, stream, or lake regardless of the presence or absence of hydric soils and saturated soil conditions. Generally, the CDFW takes jurisdiction to the top of bank of the stream or to the outer limit of the adjacent riparian vegetation (outer drip line), whichever is greater. Notification is generally required for any project that will take place in or in the vicinity of a river, stream, lake, or their tributaries. This includes rivers or streams that flow at least periodically or permanently through a bed or channel with banks that support fish or other aquatic life and watercourses having a surface or subsurface flow that support or have supported riparian vegetation. A Section 1602 Streambed Alteration Agreement would be required if impacts to identified CDFW jurisdictional areas occur. Appendix E – Regulations Porter Cologne Act The California Porter-Cologne Water Quality Control Act gives the State very broad authority to regulate waters of the State, which are defined as any surface water or groundwater, including saline waters. The Porter-Cologne Act has become an important tool in the post SWANCC and Rapanos regulatory environment, with respect to the state’s authority over isolated and insignificant waters. Generally, any person proposing to discharge waste into a water body that could affect its water quality must file a Report of Waste Discharge in the event that there is no Section 404/401 nexus. Although “waste” is partially defined as any waste substance associated with human habitation, the Regional Board also interprets this to include fill discharged into water bodies.