1.5.2.4 Modoc County

Primary access to the Project wellfield, power plant site, and transmission line would be via Modoc County Road 97. Construction vehicle use of this road during wellfield development and site construction may require Modoc County to issue an Encroachment/Road Use Permit.

1.6 Consultation Processes

1.6.1 U.S. Fish and Wildlife Service - Section 7 of the Endangered Species Act

The Endangered Species Act of 1973, as amended (ESA), requires that the USFWS be consulted by federal agencies for those actions proposed by the federal agency which may affect listed threatened or endangered (T/E) species or their critical habitats. Protection under the ESA also extends to species and habitat proposed for listing, and the USFS extends protective status to species and habitat identified by the USFWS as candidates for listing. The ESA prohibits the "take" (i.e., killing, harming, or harassment) of listed threatened or endangered (T/E) species without special exemptions. Section 7(a) of the ESA requires that Federal agencies responsible for authorizing projects (authorizing agency) that may adversely affect a listed species, or adversely modify listed critical habitat designated for such a species, undertake consultation with the USFWS. Consultation may be informal or formal. Informal consultation is a process that includes all discussions and correspondence between the authorizing agency and USFWS and is designed to determine if formal consultation is required. Unless it is readily apparent that formal consultation is necessary, the authorizing agency will typically first consult informally on all actions that may affect a listed species or its listed critical habitat. The authorizing agency will also typically seek recommendations for modification of actions that will avoid the likelihood of adverse effects and contribute to achieving recovery objectives for the listed species or its critical habitat. The consultation process is terminated by: (a) the issuance of a biological opinion by the USFWS; (b) notification by the authorizing agency that a proposed action is not likely to occur; or (c) a determination by the authorizing agency (with concurrence of the USFWS) that a proposed action is not likely to adversely affect any listed species. If formal consultation is conducted and a biological opinion is issued by the USFWS to the requesting authorized agency, it will determine if the Proposed Action is likely to jeopardize the continued existence of a listed species. A section of a “no jeopardy” biological opinion would specify terms and conditions under which the listed species may be taken. This section also determines appropriate levels of take, as defined by individuals of the species killed, injured, or moved, and the amount of critical habitat subject to temporary and/or permanent disturbance. If a “jeopardy” biological opinion is issued, then the authorizing agency must notify the USFWS in writing prior to its final decision on a proposed action. The USFS, as the surface management agency, will initiate the consultation process with the USFWS on behalf of the authorizing agency, the BLM. At the time of the preparation of the Final EIS/EIR, the Biological Assessment/Biological Evaluation (BA/BE) had been drafted and was undergoing internal review by the Modoc National Forest prior to submittal to the USFWS. Section 7 consultation will result in a Biological Opinion (BO) by the USFWS. The findings and mitigation measures required by the USFWS will be integrated into the Action Alternative Record of Decision.

1.6.2 California Department of Fish and Game Section 2081 Consultation

The California Endangered Species Act of 1984 (CESA) prohibits the “take” of any state-listed rare or endangered plant or animal species. If a state agency is acting as the CEQA lead agency, it is required to consult with the CDFG to determine if proposed projects are likely to jeopardize the continued existence of any T/E species or result in the destruction or adverse modification of habitat essential to the continued existence of any T/E species. However, if a local agency, such as the SCAPCD, is the CEQA lead agency, such consultation is not required. The CDFG has instead historically authorized exceptions to the “take” prohibition to individuals which would allow the “take” of state listed species for management purposes under Section 2081 of the California Fish and Game Code. This practice, although recently under judicial review, has now been reaffirmed with the passage and approval of SB 879, effective January 1, 1998. Where applicable, the Section 2081 process establishes measures for the protection of the affected T/E species and their habitat during project actions, and SB 879 adds that any required compensation must be roughly proportional to the impacts on the species. Where a species is both federal and state listed, and a project is subject to both NEPA and CEQA, the CDFG is encouraged to participate to the extent practical in the federal consultation process and adopt a coordinated biological opinion with the USFWS that reflects consistent and compatible findings between state and federal agencies. With the passage and approval of AB 21, effective January 1, 1998, the federal ESA Section 7 “take” authorization for a project would preclude the necessity for a state Section 2081 permit, if the Section 7 authorization is approved by CDFG as consistent with CESA.

1.6.3 California Office of Historic Preservation

Section 106 of the National Historic Preservation Act, as amended (NHPA), requires that a Federal agency with jurisdiction for authorizing a Proposed Action (authorizing agency) take into account the effect of the undertaking on properties included on, or eligible for, the National Register of Historic Places (NRHP), and to afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment. Regulations implementing Section 106 provide that: “When an undertaking may affect properties of historic value to an Indian tribe, the consulting parties shall afford such tribe the opportunity to participate as interested persons. Traditional cultural leaders and other Native Americans are considered to be interested persons with respect to undertakings that may affect historic properties of significance to such persons” (36 CFR 800.1(c)(2)(iii)). The 1992 amendments to the law particularly strengthen Native American involvement in the process (see also Section 1.6.4). The State Historic Preservation Officer (SHPO) coordinates state participation in the implementation of the NHPA and is a key participant in the Section 106 process. The SHPO reflects the interests of the state and its citizens in the preservation of their cultural heritage and assists in the identification of those persons interested in an undertaking and its effects upon historic properties (36 CFR 800.1(c)(1)(ii)). Proof of the significance determination is provided: (a) in a cultural resources survey report, (b) in a testing phase report; or (c) in a separate document made available to the SHPO. The inventory and evaluation is usually attached as a confidential technical appendix to the NEPA/CEQA document(s) prepared for the Proposed Action, such as this EIS/EIR, with the results summarized in the NEPA/CEQA document(s). No further action would then be required under the Section 106 process for sites determined not eligible for the NRHP. However, if significant cultural resources are found which are eligible for the NRHP, then the authorizing agency and the SHPO will apply the Criteria of Effect (36 CFR 800.9(a)) to the sites that may be affected, giving consideration to the views of the Native American community and other interested parties. If the authorizing agency finds that the Proposed Action will have no effect and notifies the SHPO, then no further action will be taken unless the SHPO files an objection within 15 days. If the authorizing agency finds that the Proposed Action will have an effect, then the authorizing agency, with consultation from SHPO, will apply the Criteria of Adverse Effect (36 CFR 800.9(c)). Under circumstances when the cultural resources are only significant under Criterion D, a “Determination of No Adverse Effect” can be made if a Treatment Plan is devised and approved to mitigate impacts to the site. This can include avoidance through project design, and/or development of a research design for data recovery whereby the scientific information and other values associated with the site are recovered before the Proposed Action proceeds. Regulations require that the authorizing agency obtain either: (a) SHPO concurrence with the finding and summary documentation provided to the ACHP and public during a public review period; or (b) the finding, with all documentation, be submitted to the ACHP for a 30-day review period with notification of the SHPO.

1.6.4 Native American Consultation

The American Indian Religious Freedom Act (AIRFA) and Executive Order 13007 require that agencies evaluate whether proposed projects may affect traditional religious practices or sacred sites. Ongoing consultation efforts with local Native American groups are being conducted by both the Modoc and Klamath National Forests, relevant to the Proposed Action, the Fourmile Hill Project (see Section 1.8), and geothermal exploration and development in the Glass Mountain KGRA in general. Native American groups were notified during preliminary planning activities for the Proposed Action in advance of public notifications. An advance announcement of proposed geothermal development activities was distributed to group representatives on May 21, 1997 to ensure that Native American groups were provided with sufficient opportunity to express their concerns, if any, and to ensure that their concerns are considered. Native American groups were also subsequently sent a copy of the interested parties notification letter which summarized the Proposed Action. Preliminary findings of the Native American consultation activities are described in Section 3.6 of this EIS/EIR. The USFS and BLM are continuing consultation with the respective Native American groups. Both the Pit River and the Klamath/Modoc Tribes were afforded the opportunity for a site visit. The Pit River Tribe participated in a site visit and the Klamath/Modoc Tribes participated in an earlier site visit related to the Fourmile Hill Project (see Section 3.6). The Draft EIS/EIR was distributed to the Pit River and Klamath Tribes for review and comment. Several tribal leaders submitted comments, including Jeff C. Mitchell of the Klamath Tribes, and Floyd J. Buckskin and Michelle Berditschevsky on behalf of the Pit River Tribe and the Native Coalition for Cultural Restoration of Mount Shasta and Medicine Lake Highlands Defense. During the preparation of the Final EIS/EIR, the USFS and BLM were completing a package for submittal to the State Historic Preservation Officer (SHPO). Properties identified in the ethnographic study for the Fourmile Hill project (Theodoratus and Emberson, 1996) were examined in the field in 1997 in order to develop boundaries, as required for traditional cultural property evaluations. Results of the 1997 field work were provided to the USFS/BLM in mid-1998. Those that apply to the Telephone Flat project have been incorporated into the package for the SHPO review. The package has been reviewed in government-to-government consultation with the Klamath Tribes as of September 1998 and awaited input from government-to-government consultation with the Pit River Tribes, to be scheduled at the Pit River Tribe’s convenience. Once completed, the package will be submitted to the SHPO for concurrence on determination of eligibility of the Medicine Lake Highlands as a whole and for those locations listed in the Draft EIS/EIR as potentially eligible properties.

1.7 Management Direction

Management direction for the Modoc National Forest (Forest) is based on laws passed in Congress including NEPA, the National Forest Management Act, the Resources Planning Act, the Multiple-Use Sustained Yield Act, the Endangered Species Act, and others which provide direction for various aspects of forest management. More specific regulations and policies for meeting legislation is contained in the Code of Federal Regulations, the Forest Service Manual and Handbook, and the Pacific Southwest Regional Guide. The Modoc National Forest Land and Resource Management Plan (LRMP) supplements, but does not replace, the direction from these sources.

1.7.1 Modoc National Forest Land and Resource Management Plan

In 1991, the USFS prepared the LRMP for the Modoc National Forest (USFS 1991). The LRMP provides guidance on natural resource management activities within the Modoc National Forest, and it establishes management standards and guidelines for the Forest. Management direction unique to the LRMP is designed to meet Modoc National Forest Goals and Objectives. Forest Mission and Goals provide broad direction for the Forest regarding the types and amounts of goods and services it provides. Forest Objectives are quantified land allocations, resource activities, outputs, and operating costs projected over the next 50 years. Management direction consists of: Forest Standards and Guidelines, Management Prescriptions, and Management Area Direction. These management directions are described in greater detail in Section 3.9 of this document. The annual budgeting and program planning process is the fiscal backbone of management direction. Whether objectives of the LRMP are met depends on funds appropriated by Congress and subsequent allocation to the Forest through the budget process. In addition, management direction may vary due to unforeseen site conditions. In any case, the LRMP will not vary from direction based on laws or Forest Goals. Changes in management direction will be accommodated through amendments and revisions to the LRMP. Management direction that is particularly applicable to the Proposed Action include specific guidance regarding ecosystem management strategies provided in the Northwest Forest Management Plan, the Special Areas Management Prescription, and Management Area 61—Medicine Lake.

1.7.1.1 Northwest Forest Management Plan

The Modoc National Forest LRMP was amended in 1994 as a result of the Record of Decision (ROD) for the Northwest Forest Management Plan (USFS and BLM 1994). This ROD jointly amended planning documents for 19 National Forests and 7 BLM Districts to implement conservation measures for late successional stage and old growth forests on public lands within the range of the northern spotted owl (see Sections 3.3.1.10 and 3.9.1.2). The ecosystem management strategy provided by the Northwest Forest Management Plan supercedes guidance otherwise provided in the LRMP.